Joseph McKenna

“ And we cannot extend the restraint upon the alienation of the land to a restraint upon the sale of the timber consistently with a proper and beneficial use of the land by the Indians,-a use which can in no way affect any interest of the United States. It was recognized in United States v. Cook that 'in theory, at least,' that land might be 'better and more valuable with the timber off than with it on.' Indeed, it may be said that arable land is of no use until the timber is off, and it was of arable land that the treaty contemplated the allotments would be made. ”

“ We encounter difficulties culties and baffling inquiries when we concede a cutting for clearing the land for cultivation, and deny it for other purposes. At what time shall we date the preparation for cultivation and make the right to sell the timber depend? Must the axe immediately precede the plow and do no more than keep out of its way? And if that close relation be not always maintained, may the purpose of an allottee be questioned and referred to some advantage other than the cultivation of the land, and his title or that of his vendee to the timber be denied? ”

“ Necessarily the timber, when cut, 'became the property of the United States absolutely, discharged of any rights of the Indians therein.' It was hence concluded 'the cutting was waste, and, in accordance with well-settled principles, the owner of the fee may seize the timber cut, arrest it by replevin, or proceed in trover for its conversion.' If such were the title in the case at bar, such would be the conclusions. But such is not the title. We need not, however, exactly define it. It is certainly more than a right of mere occupation. The restraint upon alienation must not be exaggerated. ”