Timber Unlawfully Cut on Indian Lands. Article 2 sets apart several reservations for various bands of the Chippewas of Lake Superior, and sets out with the following declaration, "The United States agree to set apart and withhold from sale for the Chippewas of Lake Superior the following described tracts of land," being part of the territory ceded by the Chippewas to the United States. Paragraph 4 of that article defines the boundaries of the reservation set apart for the Fond du Lac bands, and article 3 is in the following words: "The United States will define the boundaries of the reserved tracts, whenever it may be necessary, by actual survey, and the President may, from time to time, at his discretion, cause the whole to be surveyed, and may assign to each head of a family or single person over twenty-one years of age eighty acres of land for his or their separate use; and he may, at his discretion, as fast as the occupants become capable of transacting their own affairs, issue patents therefor to such occupants, with such restrictions of the power of alienation as he may see fit to impose. And he may also, at his discretion, make rules and regulations respecting the disposition of the lands in case of the death of the head of a family or single person occupying the same, or in case of its abandonment by them. And he may also assign other lands in exchange for mineral lands, if any such are found in the tracts herein set apart. And he may also make such changes in the boundaries of such reserved tracts or otherwise as shall be necessary to prevent interference with any vested rights. All necessary roads, highways, and railroads, the lines of which may run through any of the reserved tracts, shall have the right of way through the same, compensation being made therefor as in other cases." It does not appear that the timber in question was cut from land which had been set apart by the President to any "head of a family or single person over twenty-one years of age," and I am therefore to assume that the land from which the timber was cut was land held in common by the bands for which it was reserved. In other words, I am to assume that the title of these Indians was the ordinary usufructuary Indian title, the mere right to use and enjoy the land as occupants; for I can not see that the United States, in Timber Unlawfully Cut on Indian Lands. agreeing to hold the reservation for the use of these Indians, meant to do anything more than give them the usual rights of Indians on reservations as to lands occupied and enjoyed by them in common as tribes. In my judgment, it would be doing violence to the language of the treaty to make more out of it than this. The Supreme Court has held that the Indians have no greater rights to timber standing on their lands than an ordinary tenant for life has, and, therefore, that they have no authority to fell timber for the mere purpose of selling it, although they might do so for the purpose of using it, in a proper way, on the land, or for the purpose of opening land to cultivation, in good faith, and that, in case of an unauthorized cutting of timber, the United States has, at once, the right to appropriate to itself the timber thus cut (United States v. Cook, 19 Wall., 591.) This right of the United States follows from the established principle that the fee of the Indian lands is vested in the United States, subject to an occupation which may be said to be for the life of the several Indian tribes, and which is to cease when the tribes shall cease, respectively, whether by extinction or by abandonment of the tribal condition by the individuals composing them. The Supreme Court having decided in United States v. Cook (supra) that the respective rights of the United States and the Indians to timber standing on the Indian lands are precisely the same as those of a reversioner or remainderman in fee and a life tenant, respectively, to timber growing on land subject to those estates, the question under consideration may be disposed of by the application of well-settled principles. It is true that in the case of United States v. Cook (supra) the timber was cut by the Indians occupying the land from which the timber was severed, while in the case before me the felling of the timber was the act of unauthorized white men. In either case, however, it is, in contemplation of law, waste attributable to the occupying Indians, for such is the law with regard to timber cut by a life tenant or by third parties who entered as trespassers on the land subject to his Timber Unlawfuily Cut on Indian Lands. life estate. It is no answer to say that the cutting was done through the connivance of the Indian agent, whose duty it was to prevent it, because it is well settled that the Government is not to suffer through the negligence or wrongs of its officers. (Minturn v. United States, 106 U. S. R., 444 and cases cited; Moffatt v. United States, 112 U. S. R., 24.) That the United States, standing, as it does, in the relation of a reversioner in fee to the Indian occupants, has the same right to appropriate to itself immediately timber cut down on Indian land by whole trespassers, as it has to appropriate such timber when felled without authority by the Indians themselves, would seem to be beyond doubt. The law on this subject is thus stated by the lord chancellor in Bewick v. Whitfield (3 P. Wms., 268): "The timber, while standing, is part of the inheritance; but whenever it is sev ered, either by the act of God, as by tempest, or by a trespasser, and by wrong, it belongs to him who has the first estate of inheritance, whether in fee or in tail, who may bring trover for it; and this was so decreed upon occasion of the great windfall of timber on the Cavendish estate." A few additional authorities may be citd to the same effect: Berry v. Heard, Cro. Car., 242; Richardson v. Yorke, 14 Me., 216; Bulkley v. Dolbeare, 7 Conn., 232; Mooers v. Wait, 3 Wend., 104; Lane v. Thompson, 43 N. H., 324; Lewis Bowles's Case, 11 Co., 81; S. C. Tudor's Real Property and Conveyancing Cases, p. 93, note; Shult v. Barker, 12 S. & R., 272; Washb. Real Prop., vol. 1, p. 139 [120]. See also an opinion of Attorney-General Garland, dated November 20, 1888. Having shown that the timber in question is the absolute property of the United States, I proceed now to consider the first question, which is, substantially, whether the Indian agent at the La Pointe Agency, to which agency the Fond du Lac Reservation is attached, can, under instructions from the Indian Office or Department of the Interior, dispose of and give a valid title to the timber in question. It was held by Acting Attorney-General Jenks (18 Opin., 434) that timber unlawfully cut from public lands in Montana Territory might be lawfully sold, at public or private sale, by the Commissioner of the General Land Office acting under Timber Unlawfully Cut on Indian Lands. the supervision of the Secretary of the Interior, and that the authority to sell such timber necessarily followed from the power over the public lands given those officers by section 453 of the Revised Statutes. Concurring, as I do, in those conclusions and the reasoning supporting them, I am of opinion that the timber now in question may be sold, but that the sale should be made by the Commissioner of the General Land Office under the supervision of the Secretary of the Interior. The timber having been cut on lands which are none the less public because incumbered by the Indian right of occupancy, its preservation and sale would seem to belong to the Commissioner of the General Land Office, who is required to perform, under the direction of the Secretary of the Interior, all executive duties "in any wise respecting" the public lands (R. S., sec. 453). Indeed, Congress has removed all doubt on the subject by repeatedly recognizing the authority of the Secretary of the Interior, through the General Land Office, to seize timber unlawfully cut on the public lands, by appropriations to pay the agents employed from time to time to make such seizures (Wells v. Nickles, 104, U. S. R., 447). It sufficiently appears, therefore, that the Indians have no interest in this timber, and that it in no way apperta'ns to the Indian Bureau or its agents to assume charge of the same. The second question is answered already; it being clear, if the above reasoning is sound, that the proceeds of the timber, when sold, will belong to the Government absolutely. This, I think, disposes of both questions. Very respectfully, yours, The SECRETARY OF THE INTERIOR. W. H. H. MILLER. INDEX. ACCOUNTS AND ACCOUNTING OFFICERS. 1. The adjustment of accounts for expenditures of the Post-Office De- 2. The Secretary of the Treasury can not legally, by departmental 3. A person to whom a pension certificate was granted as the widow 4. It is not within the province of the accounting officers of the Treas- 5. The payment of accounts of land-gra nt railroads (i. e., such as have 6. The Secretary of the Treasury has power, under section 161, Re- 715 |