Rep., 493; United States v. Storrs, 14 Fed. Rep., 824; United States v. Yoder, 18 Fed. Rep., 372; United States v. Williams, 18 Fed. Rep., 475; United States v. Lane, 19 Fed. Rep., 910; United States v. Freyberg, 32 Fed. Rep., 195; United States v. Murphy, 32 Fed. Rep., 376.) This general concensus of opinion is entitled to great weight as authority. While we hold in this case that, as between the United States and the settler, the land is to be deemed the property of the former, at least so far as is necessary to protect it from waste, we do not wish to be understood as expressing an opinion whether, as between the settler and the State, it may not be deemed the property of the settler, and, therefore, subject to taxation. (Carroll v. Safford, 3 How., 441; Witherspoon v. Duncan, 4 Wall., 210; Railroad Co. v. Prescott, 16 Wall., 603; Railroad Co. v. McShane, 22 Wall., 444; Wisconsin Ry. Co. v. Price County, 133 U. S., 496.) As the land in question continued to be "the land of the United States," within the meaning of section 2461, the first question must be answered in the negative and the second in the affirmative. CIRCULAR RELATIVE TO TIMBER ON HOMESTEAD ENTRIES. GENERAL LAND OFFICE, To Registers and Receivers, U. S. Land Offices, and Special Agents General Land Office. GENTLEMEN: The following rules and regulations are hereby prescribed by the Secretary of the Interior for the protection of the timber growing or being upon public lands covered by homestead or preemption entries; and paragraphs 8 to 10, circular of June 1, 1883, and circular of December 15, 1883, are hereby revoked. 1. Homestead or preemption claimants who have made bona fide settlements upon public land, and who are living upon, cultivating, and improving the same in accordance with law and the rules and regulations of this Department, with the intention of acquiring title thereto, are permitted to cut and remove, or cause to be cut and removed, from the portion thereof to be cleared for cultivation, so much timber as is actually necessary for that purpose or for buildings, fences, and other improvements on the land entered. 2. In clearing for cultivation, should there be a surplus of timber over what is needed for the purposes above specified, the entryman may sell or dispose of such surplus; but it is not allowable to denude the land of its timber for the purpose of sale or speculation before the title has been conveyed to him by patent. RIGHT OF GOVERNMENT TO TIMBER CUT ON HOMESTEADS. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, Washington, D. C., May 16, 1896. SIR: Your letter of April 30, 1896, is received, in which you ask, first, if a homestead entryman can, prior to making final proof, contract for the cutting and hauling away, for a consideration, of the cedar timber on his claim, the same to be cut for the purpose of clearing the land for cultivation, and manufactured into shingle bolts. And, second, if the entryman, "to swindle the contractor," should, "after it is all cut and ready to be hauled," refuse to let the contractor remove it "under the pretext" that final proof had not been made, "could the contractor have the right to take the bolts in payment for his labor," etc.? You are informed that a bona fide entryman may cut or contract for the cutting of such timber as he wishes to have cleared in the ordinary preparation of his claim for farm purposes. The timber so cut he can sell or dispose of as he may see fit. (See enclosed copy of circular dated December 15, 1885, relative to timber cutting on lands embraced in homestead entries.) Until patent for the claim issues to the entryman, the timber cut thereon is not his property exclusively. The Government has reversionary rights in the lands, and, in the opinion of this office, the timber cut thereon may not be appropriated or levied upon in satisfaction for any claim which another may hold against the entryman. The contractor can not, therefore, appropriate the timber or bolts to which you refer in satisfaction for his claim for labor performed thereon. He has his remedy in the local courts, and can there redress his grievance growing out of violation of contract. Very respectfully, Mr. JOSEPH N. CARLSON, S. W. LAMOREUX, Silver Lake, Cowlitz County, Wash. PUBLIC-TIMBER PRIVILEGES OF SETTLERS ON UNSURVEYED LANDS. A bona fide settler upon unsurveyed public land who intends to acquire title to the land under the homestead laws so soon as he is allowed to do so after survey, and who, in good faith, is complying with the rules and regulations relative to residence, cultivation, and improvements, is permitted the same privileges with regard to the cutting of timber upon his claim as are allowed to the bona fide homesteader, and is subject to the same restrictions. TIMBER ON INDIAN HOMESTEADS. The rules and regulations governing the use of timber on lands covered by Indian homesteads are the same as those set forth in circular of December 15, 1885, quoted on page, with the exception that the restrictions respecting the use of timber remain in force for a period of twenty-five years subsequent to the issuing of trust patent, inasmuch as the title to the land (and, hence, to the standing timber as a part of the realty) acquired under such patent remains inalienable until the expiration of that period, or longer, when the United States is discharged of its trust. TIMBER ON INDIAN ALLOTMENTS AND INDIAN RESERVATIONS. [19 Op., 232.] DEPARTMENT OF JUSTICE, Washington, January 26, 1889. SIR: By your letter of the 21st of January, 1889, you ask— 1. Whether an allottee under the act of February 8, 1887 (24 Stat., 388), possesses the right to cut and sell merchantable timber, whether pine or hard wood, standing upon the lands allotted to him, and held under the trust patent by which the title is reserved for twenty-five years or longer to the United States. 2. If such allottees possess the right of sale to any extent, is the Department authorized to exert any control over the disposition of the property, except when the land still remains within an Indian reservation within its jurisdiction under the statute? The Indians, when organized as tribes under the former policy of the Government, have been treated as domestic dependent nations under the guardianship of the United States. That their condition would be made better if, instead of their separate national organization, with the nomadic and improvident habits incident to it, they were severally qualified, as speedily as possible, for self-reliant citizenship in the several States and Territories and endowed with political rights, is shown to be the conclusion reached by Congress, which inspired the passage of the act to which you refer. The act is intended to change the wandering, improvident, and semi-civilized hunter to the domestic, industrious, and enlightened citizen. The first step adopted to promote this end is to give to each Indian a home, with a sense of ownership. The act contemplates that these homes shall, in the first instance, be agricultural. The first industries are to be farming and grazing, as shown by the first section of the act, for the land to be allotted is to be such as is "advan tageous for agricultural and grazing purposes." In this contemplated new mode of life the guardianship which heretofore has been exercised over the tribe is to be transferred to the individual allottees provided for in the act. The separate manhood of each Indian is to be recognized, but still subject for a time to the care and supervision of the Government as trustee or guardian. The real estate falling to each allottee is not intended to be used during the period of the guardianship for speculative purposes, but is so conditioned that in their period of wardship and tutelage the Indians shall not be subject to the danger of entering into an unequal competition with the whites in the field of traffic and general business outside of agriculture and grazing. The fifth section of the act provides for two different patents to be given to each allottee for the same land. The first is to be Of the legal effect, and declare that the United States does and will hold the land thus allotted for the period of twenty-five years in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs, according to the laws of the State or Territory where such patent is located. The second is That after the expiration of said period the United States will convey the same by patent to said Indian or his heirs as aforesaid in fee, discharged of said trust and free of all charge or encumbrance whatsoever. Prior to the issuing of the second patent the United States is to act as trustee of the lands. This relation as to the lands is substituted for the guardianship heretofore exercised over the tribe. For twenty-five years or longer the obligation exists to see that the intent of the law shall be faithfully carried out, and no unlawful waste committed either by the cestui qui trust or anyone else. During that period the land is intended to be used for agricultural and grazing purposes. Whatever timber may be necessarily cut or used for the promotion of these purposes the trustee should permit. To sell the timber growing on the land, or to cut it for sale for commercial purposes, except such as may be cut in clearing the land or for improvements to be erected thereon, would be inconsistent with the obligation of the trustee to preserve and protect the trust. And the ruling in United States v. Cook (19 Wall., 591) would seem to meet this question. The opinion rendered by me July 21, 1885, to the Secretary of the Interior on the question of leasing Indian lands for grazing purposes in its logic reaches this proposition. Your first inquiry is therefore answered, that the allottee does not possess the right to cut and sell merchantable timber, except such as it may be necessary to cut in clearing the land for agricultural or grazing purposes, or to erect suitable buildings thereon. To your second inquiry I reply that by virtue of the legal title remaining in the Government, and the trust relation assumed by it until the second patent is granted, it is the duty of the Department to prevent the cutting of timber except for the purposes above indicated, whether the land is or is not within an Indian reservation. Very respectfully, The SECRETARY OF THE INTERIOR. A. H. GARLAND, See "Timber unlawfully cut on Indian lands" (19 Op., 710), cited on page 45. See also United States v. Cook (19 Wall., 591), cited on page 47. LANDS VALUABLE CHIEFLY FOR TIMBER NOT SUBJECT TO INDIAN ALLOTMENT. DEPARTMENT OF THE INTERIOR, Washington, December 30, 1895. SIR: I transmit herewith copy of a communication of the 24th instant from the Commissioner of Indian Affairs, and accompanying applications, made by Louis Mishler, a Chippewa Indian, for allotments of lands for himself and his four minor children. As the papers show that the lands in question are more valuable for timber than either agricultural or grazing purposes, and therefore not subject to allotment, said applications are rejected, and you will cancel the same and take such other steps in the premises as may be proper. Please notify the Commissioner of Indian Affairs of the action taken by your office. Very respectfully, HOKE SMITH, COMMISSIONER OF THE GENERAL LAND OFFICE. Secretary. BURNED TIMBER ON HOMESTEAD ENTRIES IN WISCONSIN, MINNESOTA, AND MICHIGAN. [Act of January 19, 1895; 28 Stat., 634.] AN ACT for the relief of homestead settlers in Wisconsin, Minnesota, and Michigan. Whereas during the summer and autumn of eighteen hundred and ninety-four extensive forest fires prevailed in northern Wisconsin, Minnesota, and Michigan, resulting in the death of many homesteaders and their families, the destruction of their property and effects, and of much of the green timber growing upon them, which homesteads are valuable chiefly for the timber standing and growing on them; and Whereas under existing law homesteaders are not allowed to cut or sell green or burned timber, except for the purpose of clearing and improving, and all burned timber not cut within a short period will become worthless and a loss to the settler and the Government: Therefore, Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all such persons actually occupying homesteads in said States of Wisconsin, Minnesota, and Michigan, at the time of such fires, upon claims under the laws of the United States, on lands of the United States, whose property and buildings were destroyed by such fires, and the heirs of all such persons who perished by such fires, and all persons who by reason of such fires and loss of property were obliged to leave their homesteads, are hereby granted two years' additional time in which to make final proof. And temporary absence for any period within two years from the date |