
    Tuten’s Lessee vs. Martin.
    A white man, a citizen of the United States, by marrying an Indian wife, taking up a residence among the Indians in the nation, and identifying himself with them, constitutes him the head of an Indian family; and being a resident of the ceded territory at the time of the treaties, and having enrolled his name for a reservation, would have a right to a reservation under the treaties of 1S17 and 1819.
    
    If the head of an Indian family took up his residence upon the land he claims to have reserved, and made his improvement after the treaty of 1817, but lived there at the time of the treaty of 1819, he is entitled to his reservation under the latter treaty.(«)
    On the 25th May, ISIS, Wyly Tuten registered his name for a life reservation ou the books of the Cherokee agent, under the treaties of 1817 and 1819, to include the place he then lived at, opposite the Seven Islands. Wyly Tuten was a white man; his wife was a native of the Cherokee Nation, by whom he had a daughter living with him at the date of the treaty. She died before the treaty was made, but he had continued to live among the Indians with his daughter, and was recognized by them as being entitled to all the rights of a native of the nation. He had lived within the ceded territory ever since the year 1807, and resided on the place where he took his tion, from the fall of 1817, until he was dispossessed.
    It was proved, that Tuten had lived on another place before he moved to the land in dispute, at the time of the treaty of 1817, the improvement of which place he sold before he moved to, and registered his name for, the land in controversy. It was also proved, that since the death of his Indian wife, he bad married a white woman, who was living with him and his Indian daughter when the treaty of 1817 was made.
    Upon these facts, the circuit judge charged the jury, “that Tuten, by taking an Indian wife, did not cease to be a citizen of the United States, and was not within either the meaning or letter of the treaty.” He also charged, “that if Tuten resided on the place he sold at the time of the treaty, claiming it as his own, and after the treaty sold it, he could not take another place after such date, as a reservation, within the meaning of the treaty.”
    The jury found a verdict for the defendant, upon which judgment was rendered, and an appeal in error granted to this court.
    Meigs and Jarnagcm, for the plaintiff in error.
    The case was submitted without argument for the defendant in error.
    
      
       Grubb vs M’Clatchy, 2 Yerger, 432. Morgan vs Fowler, 2 Yerger, 450.
    
   Green, J.

delivered the opinion of the court.

In the first part of the charge given in the court below, the circuit judge has given an opinion in direct conflict with the opinion of this court, in the cases of Grubb vs M’Clatchy, and of Morgan vs Fowler. In both these cases, the lessors of the plaintiff were white men, who had married Indian wives; but the court held, that although citizens of the United States to every extent which can be assumed in the present case, they were nevertheless, each the head of an Indian family. True, the fact of marrying an Indian wife would not, of itself, give a citizen of the United States a right to a reservation; but the forming such connection, taking up a residence among the Indians in the nation, and identifying himself with them, would constitute him the head of an Indian family, which, coupled with a residence at the time of the treaty within the ceded territory, and enrolling his name for a reservation, would give him such right.

It was known, when the treaty was made, that many white men had married Indian wives, and resided in the nation, whose interests were entirely identified with the Indians. These men exercised great influence in the nation, and were most likely to be benefit-ted by reservations. It was important to conciliate them, and by making it their interest, enlist their influence in promoting the treaty about to be made. We must suppose they were intended to be provided for, and that the words, “head of an Indian family,” were inserted with an express view to them. Thus, while on the one hand, the idea is kept up that the provision was for the benefit of the Indians, on the other, such language is used, as that white men, having the relation of the “heads of Indian families,” should be permitted to participate in the advantages of the stipulation. So far, therefore, from excluding white men thus situated, I consider the primary design of this peculiar phraseology to have been inserted for their benefit.

We come now to -the question, whether, as Tuten sold an improvement on which he lived at the date of the treaty of 1817, and before he registered his name for a reservation, and in the fall of the year removed to the place now in dispute, he is thereby excluded from the right to take this reservation.

In the cases of Grubb and of Morgan, before referred to, the court held it was not essential to the va-liditj of a reservation, that the reserve© should have had any improvement or residence on the place claimed by him, at the date of the treaty of 1817. But if we adhere strictly to the terms of the treaties, the case comes within them. His residence on the reservation commenced in the fall of 1817. His name was registered for a reservation there, on the 25th May, 1818. It included his improvement upon which he resided when the treaty of 1819 was made; the title vested by virtue of this treaty, and the stipulation in the treaty of 1819, is referable to their situation then, and not to what it had been in 1817. The language is, “do agree to allow a reservation of 640 acres to each head of an Indian family residing within the ceded territory,” &c. using the present tense. Although the reservation was to be taken in th© manner prescribed in the 8th article, of the treaty of 1817, yet the situation of those entitled, as it existed in February, 1819, and not at any previous time, was to h.e the criterion by which the right to a reservation was to be tested.

If this view of the case be correct, it matters not how many places the lessor of the plaintiff had previously improved and sold. Upon this point then, the circuit court also erred.

How far the act of the Cherokee agent, in receiving the registry of the names for reservations, is to be considered conclusive of any, or all the facts necessary to constitute a right to a reservation, it is not now necessary to discuss. The court has heretofore, in adjudicating upon these cases, proceeded upon the idea that all these facts were open to investigation in the courts, and were necessary to be proven to have existed as required by the treaties. It cannot, however, but be seen, that if the evidence of these titles is to rest wholly in the memory of witnesses, it must, in a few years, cease to exist at all, and the reservee, his heirs or assigns, will have to depend exclusively for their title Upon acont-jnliecl possession of the land.

The judgment in this case must he reversed, and the cause remanded to he again heard upon the principles contained in this opinion.

Judgment reversed.  