Opinion · Supreme Court of the United States

United States v. Cook

86 U.S. (19 Wall.) 591

Type
Opinion
Court
Supreme Court of the United States
Jurisdiction
Federal
Date
1874-05-18
Topic
general

How later courts describe this case

  • explaining that Indians enjoyed only right of occupancy in Indian lands and that "the fee was in the United States"
  • analogizing Indian title to the interest held by a tenant for life, stating that “[w]hat a tenant for life may do upon the lands of a remainder-man the Indians may do upon their reservations, but no more”

Citator

UpLaw has not yet analyzed United States v. Cook. The absence of a flag is not a finding that it is good law.

Cited by
95 opinions

Headnotes

  1. Real Property Law — Title The right of Indians in lands they occupy is that of occupancy alone; they have no power of alienation except to the United States, and the fee is in the United States subject only to this right of occupancy.
  2. Real Property Law — Title The right of Indians to occupancy is as sacred as that of the United States to the fee, but it is only a right of occupancy; possession, when abandoned by the Indians, attaches itself to the fee without further grant.
  3. Real Property Law — Indian Occupancy Rights The right of use and occupancy by the Indians is unlimited, and they may exercise it at their discretion, including clearing timber to make the land suitable for agricultural use.
  4. Real Property Law — Timber Rights of Occupants To justify the cutting of timber by Indians, except for use upon the premises as timber or its product, the cutting must be done in good faith for the improvement of the land, with the improvement as the principal thing and the cutting of timber as the incident only; any cutting beyond this is waste and unauthorized.
  5. Real Property Law — Standing Timber Standing timber is part of the realty and can only be sold as the land could be; because the land cannot be sold by the Indians, the timber, until rightfully severed, cannot be sold either.
  6. Real Property Law — Rightful Severance of Timber Timber may be rightfully severed by Indians only for the purpose of improving the land or better adapting it to convenient occupation; when rightfully severed, it is no longer part of the land and there is no restriction upon its sale.
  7. Real Property Law — Wrongful Severance of Timber If timber is severed for the purpose of sale alone, with the cutting as the principal thing and not the incident, the cutting is wrongful, and the timber, when cut, becomes the absolute property of the United States.
  8. Real Property Law — Indian Rights Analogized to Life Tenancy The Indians have the same rights of occupancy in the lands of their reservations as a tenant for life has in the lands of a remainder-man; what a tenant for life may do upon the lands of a remainder-man the Indians may do upon their reservations, but no more.
  9. Real Property Law — Remedies for Waste When the cutting of timber constitutes waste, the owner of the fee may seize the timber cut, arrest it by replevin, or proceed in trover for its conversion.
  10. Real Property Law — Presumption Against Authority of Indians to Cut Timber Because the Indians have only a right of occupancy in the lands, the presumption is against their authority to cut and sell the timber, and every purchaser from them is charged with notice of this presumption.
  11. Real Property Law — Purchaser's Burden of Proof To maintain his title under his purchase, a purchaser of timber from Indians must show that the timber was rightfully severed from the land.
The CHIEF JUSTICE

delivered the opinion of the court.

We think the action was properly brought,-and that it may be maintained.

The right of the Indians in the land from wdiich the logs were taken was that of occupancy alone. They had no power of alienation except to the United States. The fee was in the United States, subject only to this right of occu *593 pancy. This is the title by which other Indians hold their lands. It was so decided by this court as early as 1823, in Johnson v. McIntosh. * The authority of that case has never been doubted. † The right of the Indians to their occupancy is as sacred as that of the United States to the fee, but it is only a right of occupancy. ‡ The possession, when abandoned by the Indians, attaches itself to the fee without further grant. §

This right of use and occnpancy by the Indians is unlimited. They may exercise it at their discretion. If the lands in a state of nature are not in a condition for profitable use, they may be made so. If desired for the purposes of agriculture, they may be cleared of their timber to such an extent as may'be reasonable under the circumstances. The timber taken oft'by the Indians in such clearing may be sold by them. But to justify any cutting of the timber, except for use upon the premises, as timber or its product, it must be done in good faith for the improvement of the land. The improvement must be the principal thing, and the cutting of the timber the incident only. Any cutting beyond this would be waste and unauthorized.

The timber while standing is a part of the realty, and it can only be sold as the land could be. The land cannot be sold by the Indians, and consequently the timber, until rightfully severed, cannot be. It can be rightfully severed for the purpose of improving the land, or the better adapting it to convenient occupation, but for no other purpose. When rightfully severed it is no longer a part of the land, and there is no restriction upon its sale. Its severance under such circumstances is, in effect, only a legitimate use of the land. In theory, at least, the land is better and more valuable with the timber oft' than with it on. It has been improved by the removal. If the timber should be severed for the purposes of sale alone — in other words, if the cutting of the timber was the principal thing and not the incident — then *594 the cutting would be wrongful, and the timber, when cut, become the absolute property of the United States.

These are familiar principles in this country and well settled, as applicable to tenants for life and remainder-men. But a tenant for life has all the rights of occupancy in the lands of a remainder-man. The Indians have the same rights in the lands of their reservations. What a tenant tor life may do upon the lands of a remainder-man the Indians may do upon their reservations, but no more.

In this case it is not pretended that the timber from which the saw-logs were made was cut for the purpose of improving the hind. It was not taken from any portion of the land which was occupied, or, so far as appears, intended to be occupied for any purpose inconsistent with the continued presence of the timber. It was cut for sale and nothing else. Under such circumstances, when cut, it became the property of the United States absolutely, discharged of any rights of the Indians therein. 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.

The Indians having only a right of occupancy in the lands, the presumption is against their authority to cut and sell the timber. Every purchaser from them is charged with notice of this presumption. To maintain his title under his purchase it is incumbent on the purchaser to show that the timber was rightfully severed from the land.

That the United States may maintain an action for cutting and carrying away timber from the public lauds was decided in Cotton v. United States. * The principles recognized in that case are decisive of the right to maintain this action.

The answer of the court, therefore, to the question propounded by the Circuit Court, is

In the affirmative.

*

8 Wheaton, 574.

†

1 Kent. 257; Worcester v. Georgia, 6 Peters. 580.

‡

Gherokee Nation v. Georgia, 5 Peters, 48.

§

Ib. 17.

*

11 Howard, 229.