with the advice and consent of the Senate, may now place any of the officers so retired under the act of 1890, upon the retired list of the Army with the rank and pay of one grade above that heretofore given them on such list.

I am of opinion that officers retired under the provisions of the act of 1890 have already been placed on the retired list of the Army with the rank and retired pay of one grade above that actually held by them at the time of retirement, and that during all the time since their names were so placed upon such list they have enjoyed the rights and privileges which the President, by and with the advice and consent of the Senate, under the act of April 23, 1904, is now permitted to confer upon other officers less favorably situated. The actual rank of officers retired under the act of 1890 was one grade below that with which they were placed on the retired list. The purpose of the act of April 23, 1904, was to permit the President, in proper cases, to give officers an advance of one grade above that which they had actually held; and as the officers in reference to whom your inquiry relates have already received such an advancement that act can have no reference to them.

Respectfully,

J. C. McREYNOLDS,

Acting Attorney-General.

The SECRETARY OF WAR.

GUANTANAMO NAVAL STATION-PROOF OF TITLE.

The provisions of section 355, Revised Statutes, are not applicable to the expenditures authorized by the act of March 3, 1903 (32 Stat., 1188), for the erection of necessary improvements on lands at Guantanamo, Cuba, leased by the United States from the Republic of Cuba for the purposes of a naval station.

The advance payments of rental to the Government of Cuba provided for in article 1 of the agreement of July 2, 1903, may lawfully be made without further proof of title than the certified copies of the deeds conveying the lands to that Government.

DEPARTMENT OF JUSTICE,
June 13, 1904.

SIR: Under date of the 7th ultimo, Acting Secretary Charles II. Darling addressed a letter to me, setting forth

the seventh article of the Platt amendment, so called, which forms a part of the army appropriation act of March 2, 1901 (31 Stat., 898), calling attention to the fact that a lease of certain lands in Cuba to the United States for the purpose of establishing naval stations on such lands has been executed by the President of Cuba and the President of the United States, quoting the provision of the naval service appropriation act of March 3, 1903 (32 Stat., 1188), making an appropriation of $100,000 for "necessary expenditures incident to the occupation and utilization of the naval station at Guantanamo, Cuba," stating that your Department is in receipt of legalized copies of deeds purporting to convey to the Government of Cuba titles to a portion of the private lands within the area of the lease aforesaid, and, finally, requesting my opinion upon the following questions:

"First, whether, in view of the fact that Congress, by the act of March 2, 1901, first above quoted, authorized the leasing of naval stations in Cuba, and the lease in question having been made in pursuance of such authorization, the provisions of section 355 of the Revised Statutes are applicable to the case, or whether they are to be treated as so far modified by the provisions contained in the acts of March 2, 1901, and March 3, 1903, as to authorize the erection of the necessary improvements, for which appropriation has been made, upon the lands so leased; and,

"Secondly, whether the certified copies of deeds herewith transmitted may be accepted as sufficient, and partial payments to the Government of Cuba made under the following provision of article 1 of the lease: All private lands and other real property within said areas shall be acquired forthwith by the Republic of Cuba. The United States of America agrees to furnish to the Republic of Cuba the sums necessary for the purchase of said private lands and properties, and such sums shall be accepted by the Republic of Cuba as advance payment on account of rental due by virtue of said agreement."

Section 355 of the Revised Statutes reads as follows:

"SEC. 355. No public money shall be expended upon any site or land purchased by the United States for the purposes of erecting thereon any armory, arsenal, fort, forti13243-VOL 25-04

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fication, navy-yard, custom-house, light-house, or other public building, of any kind whatever, until the written opinion of the Attorney-General shall be had in favor of the validity of the title, nor until the consent of the legislature of the State in which the land or site may be, to such purchase has been given. The district attorneys of the United States, upon the application of the Attorney-General, shall furnish any assistance or information in their power in relation to the titles of the public property lying within their respective districts. And the Secretaries of the Departments, upon the application of the Attorney-General, shall procure any additional evidence of title which he may deem necessary and which may not be in the possession of the officers of the Government, and the expense of procuring it shall be paid out of the appropriations made for the contingencies of the Departments, respectively."

I am of the opinion that this section of the Revised Statutes is not applicable to the state of facts set forth in the Acting Secretary's letter.

As to your second question, it is unnecessary for me to determine whether or not the deeds to the Republic of Cuba are valid. They seem to be regularly executed and have been accepted by the Cuban Government. If the title conveyed by these deeds be defective, the responsibility of perfecting it rests upon the Republic of Cuba and not upon the United States. I am, therefore, of opinion that partial payments to the Government of Cuba, under the provisions of article 1 of the agreement of July 2, 1903, may lawfully be made without further proof of title than the certified copies of deeds which have been submitted by that Government through our minister at Havana.

Respectfully,

W. A. DAY, Acting Attorney-General.

The SECRETARY OF THE NAVY,

LOYAL CREEK CLAIMS-DISTRIBUTION OF FUND.

The money appropriated by the act of Congress of March 3, 1903 (32 Stat., 996), for the payment of the so-called "loyal Creek claims” should be paid, in the case of a claimant dying before January 1, 1898, to the distributees of such claimant determined according to the Creek: laws; and in the case of a claimant dying on or after that date, to his distributees according to the laws of Arkansas in force in Indian Territory.

DEPARTMENT OF JUSTICE,

June 14, 1904.

SIR: I have your letter of the 4th instant, requesting my opinion upon the question whether the Arkansas laws of succession, or those of the Creek Nation, are to govern in the distribution of the sum of money appropriated by the act of March 3, 1903 (32 Stat., 982, 994), for the payment of the so-called "loyal Creek claims," in cases where the beneficiaries are deceased.

The act of March 3 appropriates $600,000, and authorizes. the Secretary of the Treasury to pay said sum, less attorney's fees, to the loyal Creek Indians and freedmen named in articles 3 and 4 of the Creek treaty of June 14, 1866 (14) Stat., 785), said payment to be made-" to such Indians and freedmen only whose names appear on the list of awards made in their behalf by W. B. Hazen and F. A. Field, as commissioners on behalf of the United States to ascertain the losses of said Indians and freedmen as provided in said articles three and four; and such payments shall be made in proportion of the awards as set out in said list: Provided, however, That if any of said loyal Creek Indians or freedmen whose names are on said list of awards shall have died, then the amount or amounts due such deceased person or persons, respectively, shall be paid to their heirs or legal representatives."

* * *

This act recognizes, in each of the Creek Indians whose names appear on the Hazen and Field roll, a valid claim against the United States. At the death of any such Indian, an interest in said claim vested at once in those persons surviving him who were by law entitled to be distributees of his personal estate. (See Grant v. Bodwell, 78 Me., 460; Thompson v. Thomas, 30 Miss., 152, and, especially, Foster

v. Fifield, 20 Pick., 67, where it was held that money received by an administrator from the Government of the United States, in pursuance of a treaty with a foreign nation, as an indemnity for loss of property taken from the intestate by such foreign nation, was to be administered as assets of the intestate's estate.)

It was undoubtedly the intention of Congress that the money appropriated by the act of March 3, 1903, should be paid to those persons who possess an interest in the “loyal Creek" claim; that is, to the living enrolled claimants and to the distributees of the deceased claimants. (See Johnson v. Knights of Honor, 53 Ark., 255, 260, and cases there cited.) The rights of such distributees in the fund appropriated are to be determined in each case by the laws governing the distribution of the intestate's personal estate at the time of his death.

Prior to May 2, 1890, the distribution of personal property of Creek Indians dying intestate was determined solely by the laws, customs, and usages of the tribe. (See Jones v. Meehan, 175 U. S., 1, 29.)

On May 2, 1890, Congress passed an act (26 Stat., 81, 94, sec. 31) extending the laws of Arkansas, including the law of descent and distribution, to the Indian Territory, so far as not locally inapplicable, but providing (section 30):

"That the judicial tribunals of the Indian nations shall retain exclusive jurisdiction in all civil and criminal cases arising in the country in which members of the nation by nativity or by adoption shall be the only parties; and as to all such cases the laws of the State of Arkansas extended over and put in force in said Indian Territory by this act shall not apply."

The policy of the act of 1890 was to regulate the affairs of persons in the Indian Territory not citizens of any tribe, and the dealings of Indian citizens with such persons and with citizens of different tribes, but to leave the internal affairs of each tribe to be governed as formerly by the tribal laws. It has accordingly been held by the court of appeals of the Indian Territory (Nirens v. Virens, 64 S. W. Rep., 604; 76 id., 114) that the Indian laws of descent and distribution continued to be in force after the passage of the act of 1890.