The Progress. [volume] (White Earth, Minn.) 1886-1889, 1888-05-12


dams hold their lands. 1t was so de
cided by this court as early as 1923
in Johnson VS.. Mcintosh e Wheaton
$40 The authority of that case has
never been doubted (Kent 257 Wor
cester vs.. Georgia Peters 68O) The
right of the Indians to their occupan
cy is as sacred as that of the United
States to the fee, but it is only right
OF occupancy. (Cerokee nation VS.
Georgia, S Peters 49, The possession.
when abandoned by the Indians, at.
taches itself to the fee without fur
thur grant. ..
This right of use and occupancy by
the Indians is unlimited. They may
| exercise it at their discretion.
# the lands in state of nature arc
not in condition for profitable use,
they may be made so.
If desired for the pourpose of agri
culture, they may be cleared of their
timber to such an extent as NAV be
reasonable under the circumstances,
The timber taken off by the Indians
in such clearing may be sold by them.
but to Justify any cutting of the tim.
Der, except for use upon the premises,
as timber or it's product, it must be
done in good faith for the improve.
ment of the land.
The improvement must be the prin.
cipal thing, and the cutting of the
timber the incident only. Any cutting
beyond this would be waste and un
authorized.
The timber while standing is part
Of the realty, and it can only be solo
as the land could be. The land car
not be sold by the Indians, and conse.
quently the timber, until rightfully
severed for the pourpose of improving
the land, Or the better adapting it to
convenient occupation, but for no 9th
er purpose. When rightfully sever
cd it is no longer part of the land
and there is no restriction upon its
sale. It's severance under such cir
cumstahces is, in effect, only a legiti.
mate use of the land. In theory, at
least, the land is better and more val
liable with the timber off than witt
t on. It has been improved by the
removal. If the timber should be Sc
Vered for the purpose Of sale alone
n other words, if the cutting of the
timber was the principal thing anG
not the incident, then the cuttine
would be wrongful, and the timber.
when cut, become absolute property
of the United States.
These are familiar principals in this
country and we'll settled, as applicabl.
20 tenants for life and remainder-men.
But tenant for life has all the right
OF occupancy in the lands of remain
herman. The Indians have the same
lights in the lands Of their reservation.
What tenant for life may do upon
the lands Of a remainder man the In.
dians may do upon their reservations,
BUT no more.
In this case it is not pretended that
The timber from which the saw.logs
we're made was cut for the pourpost
If improving the land. It was no.
aiken from any portion of the lano
which was occupied, or, so far as ap
pears, intended to be occupied for an,
purpose inconsistent with the contin-
led presence of the timber. 1t was
cut for sale and nothing else. Unde
such circumstances, when cut, it be
came the property of the United
states absolutely, discharged of an
rights of the Indians therein. The
cutting was waste, and in accordance
with we'll settled principles, the own
er of the fee may seize the timber cut,
arrest it by replevin, or proceed in tro
yer for its conversion.
The Indians having only right of
occupancy in the lands, the presump
ton is against their authority to cut
md sell the timber. Evrey purchase
from them is charged with notice of
this presumption.
To maintain his title under his bur
chase it is incumbent on the purchase,
20 show that the timber was rightful.
ly severed from the land.
That the United States may main
tain an action for cutting and carryin,
away, timber from the public land
was decided in Cotton VS.. United
States III Howard, 229). The princi.
pies recognized in that case are deci
sive of the right to maintain this &C
ton.
The answer Of the Court, therefor,
TO the question propounded by the Cir