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Show CXIV REPORT OF THE COMMISSIONER OF INDIAN AFFAIRS. The patent to be firat isaued to the Indian allottee under section 5, of the act of 1887, is not intended to convey to him the title of the United States, but is in the nature of a declaration of s, trust in the land or a covenant to stand seized of it to the use of the allottee and his heirs until the time shall have arrived when it shall be deemed proper to put an end to the trust by vesting the legal title in him or his heirs. The effects of the allotment and declaration of trust aretoplace the allottee inpos-session of the l a d ~ l lot t eda nd give him a qualified ownership therein. and the ex-tent to which the sllottee is thus restricted, as a proprietor, remains now to be con-sidered, in so far as neaessary to answer the question8 submitted. And first as to timber: In en opinion of Attorney-General Gsrlend, dated January 26, 1889, it wsa held to be waste for an allottee to cat timber standing on his allot-ment for the direct purpose of selling it, by which I understand him to mess timber that is alive and growing. The question before me, however, namely, whether the allottee has the right tosell and r-e move from hi8 allotment dead timber, standin-g or fallen, is essentially different from that passed upon by my predeoesaor, and as I have reached the conclusion that appropriating md selling dead timber of any kind is not waste at common law orhy th-e law of Wisconsin. within the limits of which State the timber in question is sit-uated, i t is not neceas~ryt o re-examine the question whether a n allottee is impeach-able for waste. Lord Coke tells us that the entting of dead wood, which he defines as trees tllst are dried up, desd or hollow, not bsing timber, or bearing frnit or leaves in anmmer, is no waste (Co. Litt. 53a 53b). Indeed this would seem to follow from the well-known prinoiple thst to constitute waste aome permanent injury must be done to the inher-itsnce by the tenant of a particular estate-aq for example, 5 tenant for lifeor year-it being quite evident that the removal of dead wood, pxarticularly when standing and threatening the safety of trees near it, end vsluable for timber, seems more like a benefit thsu an injuryof any kind. It would be entirely out of harmony with the more liberal American doctrine of wsste, as applicmhle to timber, to hold that a tenant who is by that dootrine in many ce808 entitled to fell timber for the express purpose of opening the land to coltivsi tion is still not st liberty to use the dead wood on the land in addition to theestovers allowed him by law. The law on this subject will be found prenented in the case of Wilkinaon a. Wilkinson (59 Wia., p. 561), Shine v. Wilcox (I. D. & B. Eq., 631), per Gaston J. King v.Miller (99 N. C., 594, etc.), Darsey o. Moore (100 N. C., 44), and it appears by the deoisions of the supreme oourt of Wisconsin that the injury called "waste" is the same in thst State as at common law (Lander a. Hall, 6Y Wis., 331, and Bandlow u. Thieme, 53 Wi.., 67), supposing that a question of wsste by an In-dian allottee on land in Wisconsion is to be determined by the law of that State. This anawers the first question. Theremaining qnestions Iproceed to disposeof in their order. (2) Can an allottee under said sct lr~wfullyle ase or rent, either with or without the approval of the Secretary of the Interior, the wholeor any part of his allotment ? T--h is aueation I answer in the neeative. The act declares that a n r canvaysnce of ~ - the allotment or contmot touching "the same1'-that is, tho allotment--made before the exnirstion of the probationary term, shall be "&bsol~telyn u11 and void!' m,-l, i- f- n-~o~t~. c,a n he l ~ ~ v f u lclovn tract fir.. or n- ermit. the ereotion of mills for maua-factore of lnmber, or other pnrposes, upon his allotment? I can not see how it is possible that any valid contract giving a, third person the - - right to use, far any enoh purpose, the-land allotted can be made beyond a mere revokahle license. The allottee oan not encumber hia land in my way during the term he is learning to sdiuat himself to his new relations in life. To allow Mm to do so would in many instances entirely defeat the object of the law. (4) What nae may an allottee law full^ make of hisallotment, otherthanindividual |
