The opinion of the Court was delivered by

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.

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