
    Edward Davis v. Caleb Hall.
    Where a father has been a citizen of the United States, his son is entitled to the privileges of citizenship, although born without the limits of the United States. Aliter of the child of a citizen mother by an alien father.
    This action was brought to try the title to a tract of land lying in Pendleton district, which had been granted to Edward Wilkinson.
    8™tee was a citizen of the United States, and some years before his death had gone to reside among the Cherokee nation of Indians, where he died intestate. The plaintiff’s title to the land was by deed from the mother, brother and sisters of the grantee, in whom he supposed the legal estate had vested on the death of the grantee. The defendant admitted the title as thus derived, and the plaintiff here rested liis case.
    On the part of the defendant, it was satisfactorily proven, that Edward Wilkinson, the grantee had intermarried with an Indian woman, by the name of Cootee, of the Cherokee tribe, by whom he had two children; that one of them died in the lifetime of the father, the other survived him, and is yet living. The only doubt in this case was, ypbether this child was capable of taking the land in question, by descent from, the father.
    On the part of the plaintiff, it was contended, that this child was an alien, and consequently was rendered incapable of taking by descent from the father.
    Mr. Justice Gantt, who presided, overruled the objection, and a verdict was found for the defendant.
    The case was brought up, on a motion for a new trial, on the ground of misdirection on the part of the presiding Judge.
   The opinion of the Court was delivered by

M’Buffie and Bowie, for the motion. Whitfield, contra.

Gantt, J.

It has been ably contended, by the counsel for the plaintiff, that the child of the grantee, born in the Cherokee nation, is an alien, and as such is incapable of inheriting the land in question, by descent from the father, Edward Wilkinson.

The power of passing laws on the subject of naturalization exclusively appertains to the general government; and without admitting the correctness of the position, that a person born within the limits of a territory, occupied and claimed by a nation of American Indians, is an alien, it remains to be seen whether this case has been specifically provided for by an Act of ^Congress, and the rights of the child thereby secured. By an act passed on the 14th April, 1802, it is declared, that “ the children of persons who now are, or have been citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States ” In the construction of this clause, the Court entertain no doubt but that the child of the' grantee is capable of taking, by descent, the land in question, though the place of birth were without the jurisdiction or limits of the United States. The proviso in the act, which immediately follows the above quoted; clause, shows most emphatically, that the word “persons” therein mentioned, was not intended to exclude the right of such children, unless both father and mother were, or had been citizens of the United States, but that if the father alone was so, or had been, the children could inherit The words of the proviso are, “ Provided, that the right of citizenship shall not descend to persons whose fathers have never resided within the United States.” Now, although it is apparent, that the child or children of a citizen mother, by an alien father, cannot inherit, yet, the converse of the rule is expressly admitted by the proviso ; viz., that where the father has thus resided, the child or children may inherit. As therefore Edward Wilkinson, the grantee, was a citizen of the United States, and had resided within the same, his child born in the Cherokee nation of Indians, whether that place be within the jurisdiction or limits of the United States or not, is capable of taking by descent the land in question ; and on this view of the case the Court are of opinion, that the motion for a new trial must fail.

Nott, Cheves and Johnson, JJ., concurred.

See Harp. Eq. 5 ; overruled, 3 Pet. 242.  