Indian Allottees under the Act of 1887. tion and delivery of the patent, except that the law of descent and partition of the State of Kansas shall apply to allotments of land in the Indian Territory. It is unnecessary to refer particularly to the rest of this section. Section 6 provides that the allottees shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside, and that no Territory shall pass or enforce any law denying any such Indian within its jurisdiction the equal protection of the law. It then provides that "every Indian born within the territorial limits of the United States who has voluntarily taken up, within said limits, his residence separate and apart from any tribe of Indians therein, and has adopted the habits of civilized life, is hereby declared to be a citizen of the United States, and is entitled to all the rights, privileges, and immunities of such citizen, whether such Indian has been or not, by birth or otherwise, a member of any tribe of Indians within the territorial limits of the United States, without in any manner impairing or otherwise affecting the right of any such Indian to tribal or other property." This act together with the preceding acts of March 3, 1875 (18 Stat., 420), January 18, 1881 (21 Stat., 315), and July 4, 1884 (23 Stat., 96), mark, as was observed by Acting AttorneyGeneral Jenks in his opinion of July 27, 1888, "a new epoch in the history of the Indians, namely, that in which Congress has begun to deal with them as individuals, and not only as nations, tribes, or bands, as heretofore. It is dismemberment of the tribes or bands, and absorption, as citizens, of the individuals composing them by the States and Territories containing the lands on which such individuals settle or may be settled, that is the policy of this new legislation. "But Congress has not deemed it safe, in making the Indian a freeholder, to give him at once the same control over the land as other freeholders enjoy. The legislation above mentioned deprives the Indian settler of the right of conveying or incumbering the land, in any way, for a period stated, or provides that it shall be held by the United States for a given time in trust for the sole use and benefit of the Indian, and, at the expiration of such time, be conveyed to him by patent." 272-VOL XIX-36 Indian Allottees under the Act of 1887. The opinion then goes on to show that Congress has the power and is under a high duty to continue its guardian care over the individual Indian after he has assumed the relation of citizen of a State or Territory, and until he has been "educated to understand the dignity and responsibilities that belong to citizenship and the ownership of property," and that "it is to protect him while receiving this education that Congress placed the above mentioned restraints upon his property rights." The patent to be first issued 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 a 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 effect of the allotment and declaration of trust are to place the allottee in possession of the land allotted and give him a qualified ownership therein, and the extent to which the allottee is thus restricted as a proprietor remains now to be considered, in so far as necessary to answer the ques tions submitted. (1) And first as to timber: In an opinion of Attorney-Gen. eral Garland dated January 26, 1889, it was held to be waste for an allottee to cut timber standing on his allotment for the direct purpose of selling it, by which I understand him to mean timber that is live and growing. The question before me, however, namely, whether the allottee has the right to sell and remove from his allotment dead timber, standing or fallen, is essentially different from that passed upon by my predecessor, and as I have reached the conclusion that appropriating and selling dead timber of any kind is not waste at common law or by the law of Wisconsin, within the limits of which State the timber in question is situated, it is not necessary to reexamine the question whether an allottee is impeachable for waste. Lord Coke tells us that the cutting of dead wood, which he defines as trees that are dried up, dead, or hollow, not being timber or bearing fruit or leaves in summer, is no waste (Co. Litt., 53a, 53b). Indeed, this would seem to fol Indian Allottees under the Act of 1887. low from the well known principle that to constitute waste some permanent injury must be done to the inheritance by the tenant of a particular estate, as, for example, a tenant for life or years, it being quite evident that the removal of dead wood, particularly when standing and threatening the safety of trees near it and valuable for timber, seems more like a benefit than an injury of any kind. It would be entirely out of harmony with the more liberal American doctrine of waste, as applicable to timber, to hold that a tenant who is, by that doctrine, in many cases entitled to fell timber for the express purpose of opening the land to cultivation, is still not at liberty to use the dead wood on the land in addition to the estovers allowed him by law. The law on this subject will be found presented in the case of Wilkinson v. Wilkinson (59 Wis., 561), Shine v. Wilcox (1 Dev. & B. Eq., 631), King v. Miller (99 N. C., 594), Dorsey v. Moore (100 N. C., 44); and it appears by the decisions of the supreme court of Wisconsin that the injury called "waste" is the same in that State as at common law (Lander v. Hall, 69 Wis., 331, and Handlow v. Thieme, 53 Wis., 57), supposing that a question of waste by an Indian allottee on land in Wisconsin is to be determined by the law of that State. This answers the first question. The remaining questions I proceed to dispose of in their order. (2) Can an allottee under said act lawfully lease or rent, either with or without the approval of the Secretary of the Interior, the whole or any part of his allotment? This question I answer in the negative. The act declares that any conveyance of the allotment or contract touching the "same," that is, the allotment, made before the expiration of the probationary term, shall be "absolutely null and void." (3) If not, can he lawfully contract for, or permit, the erection of mills for manufacture of lumber, or other purposes, upon his allotment? I can not see how it is possible that any valid contract, giving a third person the right to use, for any such purpose, the land allotted, can be made, beyond a mere revocable license. The allottee can not incumber his land in any way during the term he is learning to adjust himself to his new relations Reservation of Lands for Irrigation Purposes. in life. To allow him to do so would in many instances entirely defeat the object of the law. (4) What use may an allottee lawfully make of his allotment, other than individual occupancy or cultivation, by which the property can be made to contribute to his support? This question is purely abstract and hypothetical, and does not arise out of an actual case calling for official action. It is, therefore, beyond my competency to give an opinion on such a question under section 356, Revised Statutes. See also 11 Opin., 189. I have the honor to be yours, very respectfully, The SECRETARY OF THE INTERIOR. RESERVATION OF LANDS FOR IRRIGATION PURPOSES. The provision in the act of October 2, 1888, chapter 1069, reserving from sale or entry lands designated or selected for reservoirs, ditches, or canals for irrigation purposes, and also lands made susceptible of irrigation by such reservoirs, ditches, or canals, operates as an immediate withdrawal of the lands thus described from entry and settlement. DEPARTMENT OF JUSTICE, May 24, 1890. SIR: By a letter of April 21, 1890, you submitted for the consideration of the Attorney-General a letter from the Commissioner of the General Land Office, raising the question: "Whether, under the act of October 2, 1888 (25 Stat., 526), the reservation extends to such tracts as may be actually selected as sites, etc.-becoming operative only after such selection or whether the reservation from disposal extends from the date of the act to the entire expanse of the arid region, as more particularly defined in the communication." Since your letter of April 21 you have transmitted also the opinion of Mr. Assistant Attorney General Shields, assigned to your Department, to whom you referred the question. After an examination of the law and of the considerations presented by Mr. Shields in his opinion, I have to say that I fully concur with him in his conclusions and the grounds stated therefor, and that, in view of the lucid opin Reservation of Lands for Irrigation Purposes. ion which he has rendered, it is unnecessary for me to give extended reasons for such concurrence. The section of the law which presents the question of construction referred by you to this Department is found in the sundry civil appropriation act of 1888, under the appropriations for the United States Geological Survey. The subject is introduced by an appropriation of $100,000, or so much thereof as may be necessary, "for the purpose of investigating the extent to which the arid region of the United States can be redeemed by irrigation, and the segregation of the irrigable lands in such arid region, and for the selection of sites for reservoirs and other hydraulic works necessary for the storage and utilization of water for irrigation." The Director of the Geological Survey is then required to make a report to Congress on the first Monday in December in each year, showing how the money appropriated has been expended. Then follows the particular language, which is the subject for construction: "And all the lands which may hereafter be designated or selected by such United States surveys for sites for reservoirs, ditches, or canals for irrigation purposes, and all the lands made susceptible of irrigation by such reservoirs, ditches, or canals, are from this time henceforth hereby reserved from sale as the property of the United States, and shall not be subject after the passage of this act to entry, settlement, or occupation until further provided by law: Provided, That the President may at any time in his discretion by proclamation open any portion or all of the lands reserved by this provision to settlement under the homestead laws." The object of the act is manifest. It was to prevent the entry upon, and the settlement and sale of, all that part of the arid region of the public lands of the United States which could be improved by general systems of irrigation, and all lands which might thereafter be designated or selected by the United States surveys as sites for the reservoirs, ditches, or canals in such systems. Unquestionably, it would seriously interfere with the operation and purpose of the act if the sites necessary for reservoirs in such plan of irrigation could be entered upon by homestead settlers. So, |