RACHEL COODY TUTEN
Wiley TUTEN a citizen of the United States having by honorable
marriage connected himself with a native of the Cherokee nation and his said
wife having since deceased, leaving one daughter in whose right said Wiley TUTEN
has this day registered himself in the Cherokee Agents office for a section of
land conformably to a treaty concluded between the United States and the
Cherokee Nation on the 8th day of July 1817, considering himself at the same
time under the protection of the United States & amenable to the laws of the
United States. Given under my hand and seal at the Cherokee Agency this 25th May
1818. Return J. MEIGS.
FORRESTER, Sarah vs. Henry I. WELCKER & Joseph BYRD - Chancery Court - 1849
To the Hon. Thomas L. WILLIAMS Chancellor &c. sitting in Chancery at Kingston. Humbly complaining Sheweth unto your Honor your oratrix Sarah FORRESTER a citizen of the Cherokee nation of Indians, that her father Wiley TUTEN who was of European extraction married her mother who was a native of the Cherokee tribe of Indians, by whom your oratrix was his sole issue, that as head of an Indian family within the purview and remaining(?) of the treaties made in the years 1817 and 1819 between the United States Government and the Cherokee nation of Indians, he obtained and held as a "reservation" a tract of land, containing six hundred and forty acres more or less on the South side of the Tennessee River on both sides of Paint Rock Creek, in the county of Roane and well known as "The Paint Rock Reservation." Many years ago the mother of your oratrix departed this life and the said Wiley married a second with now living by whom he had issue six children also now living. By the stipulations of the treaty of 1817, re-affirmed by the treaty of 1819, the said Wiley TUTEN had in the said "Reservation" a life estate, with a reversion in fee simple to his children, reserving to the widow her dower." Your oratrix is advised, however, that under the circumstances of this case; the right of dower wound not accrue to Wiley TUTEN's widow who is a woman of European extraction and not an Indian, and the remainder would accrue to your oratrix, as the child of his "previous family," and not to your oratrix jointly with her brothers and sisters of the half blood composing a family in which there is no Indian pedigree. After the death of the said Wiley TUTEN, which occurred, as your oratrix is informed, on the 14th day of Febrary 1842 one half of the land was in the possession of one George W. CHURCHWELL who held by some sort of a title from the said TUTEN as your oratrix has been informed, and the other half was occupied by the said TUTEN's widow and her children. Your oratrix herself has never been in possession of the land nor any part of it. For many years ago she removed with her husband Larkin FORRESTER to the Indian nation west of the Mississippi, where she remained until a few weeks since, when she revisited Tennessee. The value, condition and situation of the said land were therefore unknown to her until that time, except she was informed in the means thereinafter to be disclosed. After something more than a year had elapsed from the death of your oratrix's father, one Henry I. WELCKER of Roane County took steps to secure her right to the said land To effect this purpose, he associated with him, two brothers of her then deceased husband Alexander FORESTER and Solomon FORESTER; to the former of whom, residing in Roane County, he promised an interest in the land, and to the latter residing in the western part of Arkansas a pecuniary reward, believed to be one hundred Dollars or more, if they would succeed in procuring your oratrix to sign a deed for the said land. During the year 1844 WELCKER and Alexander FORESTER made a trip to the west, in order to effect a trade. They represented the land to be of much less than its actual value to be adversely held for a long time by the said CHURCHWELL whom they represented to be an astute lawyer, and a cunning unprincipled man, whom it would require years to evict, if indeed it could ever be done. Your oratrix had no near kinsman of her own to advise her and inform her; her husband was dead and her children were small. And her relatives by the said of her husband were in the interest of WELCKER misled and over pursuaded by their representations and solicitations she consented to sell her right to the said land for five hundred dollars of which WELCKER paid her one hundred dollars. No deed was drawn at that time. Your oratrix presumes because WELCKER wanted him to have it down with such formalities as are required by law. The subsequent history of the transaction will be best understood by passages from the letters written by WELCKER to Solomon FORESTER after that time. The first is as follows.
Van Buren Ark. Jany 25/44
The enclosed letter is a power of attorney to another man by the name of PATTEN which you will please have signed & certified in the same manner that the other is, for fear that CLARK will not serve, but send the one to CLARK first.
Yours &c, H.J. WELCKER
The next bears date" Kingston Tennessee. 19th February 1844. Dear Sir, I have been at home a few days and I find that your brother and myself was suspicioned for going out to buy Sarah FORRESTER's land, in fact, your brother, contrary to all expectations, on my part, had made his object known to his folks here and they told it before we had been gone a week. I am very sorry he had not listened to my advice on this subject as it may be the cause of some trouble; and I think it the more stranger, as in fact, if our trip was successful, he was to be as much benefitted as any one else. CHURCHWELL has already taken the alarm and started & will be out soon. I expect He says he can manage the Indians. I suppose he intends to make a compromise. If he calls on you try and keep him from finding out anything about matters in any way. It might be as well to make him believe that she was getting some of her friends in that country to assist her and that she was determined to take her own cause; and that it would be unnecessary to go to see her. But if he or any others should go out to see her, I wish you to manage to the best advantage, there will be some them out certain. Dr. John W. WESTER & Thomas A. BROWN both talk of going out; & I think if CHURCHWELL does not succeed they will try it next, for I will not let them know anything about her intentions. Their greatest object seems to be to spite, and if they could do so they would freely lay out their money. If you have a chance of seeing Mrs. FORRISTER after you get this, put her on her on guard, they are a cunning set of fellows, and would stop at no sort of lies to prejudice her mind. I have written to her to day to let her know what is going on. You must be certain and attend to the papers left with you as nothing will be done until they are sent. If I am not very much mistaken in Mrs. FORRESTER they will find her both smarter and more honest than they think for.
Henry I. WELCKER
To Mr. Solomon FORRESTER
Natural Dam(?), Ark.
The next letter is as follows:
May 24, 1844.
I received your letter of the 31st March for which I am under many obligations to you. I received by the same mail a letter from the widow written at Park Hill. She says that she had just received a letter from me which I wrote at the same time I wrote to you, and it was to let her know that I supposed that CHURCHWELL was going out to that country, as he went to that state, but he is back now & I suppose he did not go that free(?). The widow says she had started to sign the papers at Van Buren, but that when she got to Park Hill she got my letter, and one from Thomas A. BROWN, and after comparing the letters she came to the conclusion that Alexr. FORRESTER & myself had gone out there to cheat her out of her land. She says that BROWN says in his letter that we went out there to buy it for CHURCHWELL and the object was to cheat her out of it, and that if I will come out there and pay her two thousand dollars for it she will make a title for it &c. The truth is she cannot make a title for it, until she gets the possession of it. I can not for my life imagine what has caused the widow to change her notion, with regard to the matter. If I had not had any confidence in her being a lady that could not be influenced by any body to change her notion after making a firm and positive arrangement about the transaction of her business, I would not had anything to do with it. You recollect yourself that you told me she was a lady that could be relied on in anything to do with the transaction of that business; and what makes it seem ?? strange to me, is that she said she would not pay any attention to any letters that any of the BROWN's or CHURCHWELL might send her; as they are a set of folks that have always been acting together and care as little for what they say a ?? as the wind. Never was even surprised at any thing than I was at her letter; and I yet believe that when she reflects cooly about the matter she will change her notion about my intentions unless she has lost her reason. I think she will after reflecting see through BROWN's object. BROWN's brother in law made his brags before I got home that if I went to see Mrs. FORRESTER, I would be badly fooled, that letters had been sent on to her that would put her out of the notion of having anything to do with us; and it seems by his lies he has alarmed her bad enough. The truth is the most of the expenses attending that suit has already been incurred and she can never do anything with it until she gains it, if it is ever gained; And CHURCHWELL and his friends swear that they will take ten years before they will give it up, and there is a great uncertainty you know about how law suits go Nobody knows what will be proved until the trial comes on and the one that makes the best proof gains it. As soon as it was found out that she would try to get the land back, old Major BROWN as agent for CHURCHWELL leased every foot of the land out, so if she was here she could soon see whether the BROWNs are her friends. I have no doubt that Thom. A. BROWN told her that he would give her a big price for her claim to keep her from making any arrangement with any body else. If you see her, if she will let you have BROWN's letter, send it to me, send a copy of it any how.
Henry I. WELCKER
To. Mr. S. FORRESTER
The next letter in the Series is as follows.
"Kingston Tenn 14th June 1844.
I wrote to you not long since in which I enclosed are to be sent to Mr. B. my object was to pester him, though if you have not sent it back yet, you can burn it, as I do not know whether it would do anything more than make him mad and it might make him use greater exertions to defeat us. I have understood that Mr. B. does not care to ??? about having anything to do with the business after finding out some particulars connected with it. He has received a letter from Mrs. FORRESTER and has put one in the office today for her. I do not want you to do anything with money I left with you untill I give further directions If you see Mrs. S. FORRESTER, and she does not wish to carry out her contract, get back the money I let her have, and say to her that I will still do what I said; but if she thinks I am the swindler she took to be, I will expect her at least to pay back all she got; and if Mr. BROWN or any one else can do any better, let them do it. Yet I do not believe the widow about this matter altogether, she is a woman & some one has made her believe I would give a big price & that she had been swindled, though she and her advisers will find the risk is too great for any one who has a knowledge of the true situation of this matter to venture as much as they could buy a good place with. If you see her & she feels like sticking. I will write her a new power of attorney & send it to you & get you to attend to it, as the ones left with you could not suit.
Your friend, H.I. WELCKER
The next letter is as follows.
Kingston, Tenn. 16th October 1844
Mr. Solomon FORESTER,
Dear Sir, I intended to write to you and Mrs. Sarah FORESTER some time ago, but I did not know what to write, as things here were in a jumbled up condition about the reservation place; and the ??? my lawyers examine it, the ??? difficult the case seems to be. The course I am now aclaimed to take is to get the enclosed Deed signed and properly witnessed by two witnesses and acknowledged by Mrs. FORESTER. If Mrs. FORESTER has gone back to the nation & will not like to return to Van Buren for the purpose of acknowledging the deed, I wish you to be certain and go to see her & take some one with you; and you and that person can witness the deed & take it to Van Buren & have it property proven by you both & all the necessary certificates attached, and send it to me just as soon as it can be done. Mr. FORESTER, I wish you, when Mrs. Sarah FORESTER signs the deed, to pay her the two hundred dollars I left with you for that purpose and to pay her one hundred Dollars out of your own money for us. If you have not got the money, borrow it and I will pay the interest and pay you for your trouble. I hope you will attend to this at once as I fear that I will lose all my trouble and expense, unless it is done immediately; and it has already cost more trouble and expenses than I thought it would to have gained the land and I have now lost all hopes of ever getting more than half of it. If you will attend to this business for me and pay the other one hundred dollars to Mrs. FORESTER for me, and send the deed to me, and let me know how much I must pay you for your trouble & expense in the matter, I pledge you my word and honor, that I will send you the money by mail at my own risk just as soon as the deed gets to my hands, because I do believe if I do not get the deed soon I will never get one cent for my trouble & all that I have spent. I am very respectfully your Friend.
Henry I. WELCKER
The next letter in the series bears date
"Kingston 25 Decr. 1844" and the following is the only extract deemed worthy to be made
"Dear Sir. Some time in October last I wrote you a letter and send a deed for Mrs. Sarah FORRESTER to sign, and asked your to attend to it for me. I have waited for the deed to get back or for you to answer my letter until I am getting paid you have not got it. I am very anxious to hear from you & I hope you will let me hear what you have done or can do at soon as you get this. If you can get the deed, I hope you will do so as soon as you can & send it as there is danger in delaying the matter any longer.
I am yours &c. H.I. WELCKER
To Mr. S. FORRESTER
Natural Dam Ark.
The next letter is as follows.
"Kingston Ten. January 13th 1845
I wrote to you sometime I think, in October, and sent you a blank deed and requested you to attend to getting Mrs. Sarah FORRESTER to assign it and to get it regularly proven before a Notary Public, or before the Judge & clerk of your court &c. I also requested you to either pay Mrs. FORRESTER out of your own funds one hundred dollars, or to tell her that I would do so on the recept of the Deed, and also to pay her over what money you had on hand belonging to me &c. Not long after I sent you this letter I received a letter from the Post Master at Natural Dam saying that you had requested him to write to me and let me know that Mrs. FORRESTER was at your house and was ready to enter in to the agreement we made. I was glad to hear this & I always thought that when she came to look on the matter & reflect on it that she would do so. I had received some letters from you before I sent the deed to you but I did not know what to say to you about the business. I wish you if you have not attended to getting the deed before you get this, to attend to it, at once, as it must be attended to soon or it will be too late. If you did not get my other letter & the deed, I hope you will not delay the matter as I want to get through with it as soon as I can, as I think it likely I may have this place before long; and if I do not get this business attended to soon of course, I will lose both time, trouble and money by it. I want you to do this ??? for me and then make me pay for your trouble in attending to it. I hope you will write to me just as soon as you get this letter and let me know what you have done, or what you will do, or what you think you can do; it will only take you a minute to write and it may save me of much trouble and expense. You may rely on all that I have said to you about this business. Old George STEWART was in to see me this week. He wants me to give him a hundred dollars and he will fix it for me. He says that Luna RILEY can make her do just as he pleases & that he can fix RILEY. The truth is if BROWN can through STEWART, get her to believe that I have deceived her, he will do so, and keep her fooling about until CHURCHWELL gets a good title to the place, and then she can whistle for her place and I can whistle for my money. STEWART told me that his son George was going to Arkansas soon, he may have started already, and if I did not pay pretty well, I might, or I would have every thing torn up &c. &c. The old man must think I am a great fool to give every body money that thought they had a little influence with Mrs. FORRESTER. I think BROWN is at the lead of it, & thinks as I have paid out some money already, that I would pay a little sum rather than be defeated.
Your Friend, H.I. WELKCER
To Solomon FORRESTER, Esq.
From the foregoing letters, will be seen what means was resorted to by WELCKER, what motives and influences were used to induce your oratrix to part with her estate for a little more than one twentieth part of its value.
Her friends & relatives, who were supposed and truly(?) by him, to have personal influence over her, then were subsidized, one under the premise of sharing in the fruits of the bargain, the other under a promise of a large reward for his services, when ??? he should get the deed signed. The land was represented to be adversely(?) held, by CHURCHWELL, a rafercious(?) cunning trying(?) man, from whom it would require two years litigation to recover it. ??? even the result would be extremely doubtful. Those persons, who it was thought by him, were likely to give your oratrix more correct information, were denounced as liars confederating with CHURCHWELL to defeat the sale of the land to WELCKER & others to deprive her of any benefit or advantage from the estate. All these things were repeated to her by the said Solomon FORESTER, who probably deriving his ideas from WELCKER's letters, to him, & dishonorable action; threatened with his displeasure & the withdrawal of his friendship & support, in case she refused to make a deed to WELCKER, told her that unless it was done at once it would be too late & she would lose ??? all benefit from the property & be compelled to refund to WELCKER the bonus or earnest money which he had prevailed upon her to receive, & which in her poverty, it would have been difficult to pay back; represented WELCKER as the only friend to her & family, in this country & as kindly interfering to prevent her from being swinddled & cheated by CHURCHWELL and his advisers, aiders & abetters; and told her that she ??? expect anything from the property but what WELCKER then offered her, and that it was optimal with her to take that or to get nothing. Moved by their various considerations, and almost actually forced by the said Solomon FORRESTER, your oratrix executed a deed to WELCKER for the consideration of five hundred dollars, under a vague apprehension indeed, that the property was worth ???, but not dreaming of its actual value; and believing that it was in such a situation as to be wholly unavailing to her; and impressed(?) with the idea that she was bound in honor, morals and good conscience to abinde by and comply with the premise which WELCKER had managed to obtain from her at the first. While in truth and in fact the said land is variously estimated to be worth from $1000 to $10,000 & as your oratrix is advised, is worth the latter sum. And so far from being difficult to recover, she is advised, that it would, in ???, have been necessary to do were then to bring an action of ejectment, to which no legal defense whatever could have been made; as proof of the correctness of which vein, the said WELCKER almost immediately took possession of a large part & now with one Joseph BYRD of Roane County is in possession of the whole. The inadequacy of the consideration is so gross as of itself, as your oratrix is advised, to shock the moral sense and to be conclusive evidence of fraud. This added to the circumstances attending & proceding the execution of the said deed will, as she is advised avoid the same in a court of Equity. Besides from what has been shown, it will be seen that at the time the land was ??? held & had since been in the possession of the your oratrix in that the deed is in contradiction of the Statute, commonly called the Champerty(?) act. When, at length, your oratrix, became more fully informed of her rights in this behalf, She returned to Tennessee an instituted an action of ejectment in her own ??? and also in the name of herself & the heirs of Wiley TUTEN the half blood for the recovery of the land, which actions are now pending in the Circuit Court of Roane County. In order to remove the ??? upon her title she is advised that it is proper to come into this court to have the deed aforesaid avoided & canceled. To the said suits the said WELCKER & BYRD have been admitted as defendants. In addition to what your oratrix has stated relation to the circumstances attending the execution of this deed, she will add that, Solomon FORESTER sent a message to her to come from the Cherokee nation to visit his sick wife; that when she came then he urged her to come to Van Buren to execute the deed pressing upon her that motions & reasons heretofore stated & when your oratrix hesitated, he became more urgent & she finally went with him to Van Buren. Still she was reluctant to execute the deed, but he told her that it was all she could get for the land, that she was bound by every principle to do so, & at last with great violence told her she must do so. She found out afterwards that he was acting under a still stranger inducement than the reward offered by WELCKER. For he had spent the $200 left with him by WELCKER & found he would be required to replace it. While on the other hand he could put off your oratrix with premises which he ?? having paid her in all but $50. So that every cent which she has received for the land is $150. The premises considered, your oratrix, prays that the said WELCKER & BYRD may be made parties defendant to this bill with afterwards(?) to change them; and that they be compelled full, true and perfect answer to make to all the several allegations thereof, as fully as though the ??? were repeated in the force of interrogations, more especially but WELCKER answer & say whether the letters were written by him that are copied into the bill & whether the extracts therefrom are correctly made. In the mean time she prays that the defendants may be injoined from ??? upon a trial of suits at law until such time as your ??? may direct. And on the final hearing she asks that the said deed may be delivered up to be cancelled and for such other& further relief as is suited to the nature of the case consistently with the rules of this Honorable court. This is the first application for an injunction in the case. Sarah FORRESTER. Filed 26 Mar 1849. She later dismissed her case.
John Den lessee of Wyley TUTEN vs. John SCOTT & others - Circuit Court -1826
Robert ARMSTRONG proved that he made the Survey of which the foregoing is a copy under authority from the United States TUTEN was then living on the land in a new cabin the Land as run off is partly above and partly below the mouth of paint rock creek and included his TUTENs house in the center. Plaintiff read the Deposition of Isaac DAVIS marked A Joseph BRYANT marked B Isaac WALKER marked C Caleb STARR(?) marked D and Thomas N. CLARK marked E which is to be Taken as part of this Bill of Exceptions And also the Deposition of James G. WILLIAMS marked F also to be Taken as part of this Bill of Exceptions . . . Isaac BYRD for Plaintiff stated that he was well acquainted with Archibald COODY who was a native of the Cherokee nation and his Daughter to whom the Lessee of the plaintiff was married COODY was a native Entitled to all the rights and privaeges of the nation he BYRD as a Justice of the peace for Roane county married Wily TUTEN in the year 1807 to Racheal COODY and from that period up to the date of the Treaties TUTEN was acknowledged to be a member of the Indian nation and admitted as far as he knew to an Equal and full participation of all the rights of a nation he resided on the south side of Tennessee river on the Indians Land up to the date of the Treaties the ceded Treaty at the date of Jacksons Treaty as well as the date of Calhouns Treaty at the Date of Jacksons Treaty he thinks TUTEN Lived on a place which was sold by TUTEN and RODGERS to him in the Spring of 1818 and was included but was not positive that he moved to and resided on the Land in Dispute before and at the date of his registry for a reservation To wit on the 25th of May 1818 was certain TUTEN resided on Land in dispute at the date of Calhouns Treaty and witness Lived in roan county a few miles below the Islands - is and has been for thirty years well acquainted with the Twin Islands in Tennessee the islands them(?) Derrominated(?) consists of a cluster of small Islands six in number nearly together and one Large Island the upper end of which comes above the Lower end of the six Islands and Extends down the river the islands thus situated he has always Known as the Seven Islands has heard them so called by all the people acquainted with them for thirty years past - and the reservation as surveyed lies opposite to them there are Islands in the river a few miles below several in number above and below where he witness lives which is five or six miles below land in dispute but he has never heard them called the Seven Island one called and known by Big island and one round Island & specified names to each they extend several miles down the river below where he witness lives the first wife of TUTEN who was Rachael COODY Died leaving one child who lived with him TUTEN at the date of the Treaties he was then married to a white woman BYRD proved that TUTEN always lived on the Indians Land up to the Treaty of 1817 & 1819 that he was at TUTENs house on the land Dispute before and about the treaty of 1819 and his indian daughter was living with him
For Deft. Thos. C. HENDERSON and Robert S. GILLILAND Stated that all the Islands in the Tennessee river beginning at the cluster spoken of by BYRD and Extending several miles down the river they have all ways understood there to be and heard them called the seven Islands in Tennessee Robert S. GILLILAND also proved that the tenants in possession on whom notice was served lived on the Same in Dispute at the commencement fo the suit Plaintiff relied on the treaties of 1817 and 1819 with the cherokee Indians Joseph BYRD stated that he was acquainted with the islands in that part of the river from his boyhood and fished among them and counted them that the Islands described by Jesse BYRD towit six small ones and one large one he has always heard called the seven Islands the others Below was never so called so far as he had heard that Each below the said cluster and Long Island had a specific name one big Island one Round Island &c. Witness is of opinion that TUTEN Lived on the place sold to Isaac BYRD on the 25 May 1818 his reason for so thinking is that he was married in the early part of the year 1819 and went to live on the place sold to J. BYRD his father during the year That soon after TUTEN Left It which he thinks was in 1818 his father rented the place to one GILBREATH and GILBREATH went on the place in the winter of 1818 and 1819 that GILBREATH took possession not Long after It was left by TUTENs in 1818 and witness himself moved on the Land not Long after GILBREATH went on it Witness also proved that he knew Wily TUTEN and his wife Rachael COODY who was a native of the nation from his boyhood that TUTEN have a Daughter by Rachael COODY who was Living with him in 1817 & 1819 at the Date of the Treaties that Witness was issuing commissary at the date of Jacksons Treaty & Issued to TUTEN Rassions as any other Indian TUTEN having his order from Indian agents as other Indians again at the Treaty of 1819 Witness was captain of the Troops guarding the provisions TUTEN again drew his rations as and Indian and messed with said witness as they was well acquainted and TUTEN was always acknowledged as Entitled to the privilege of a native - Thomas STOCKTON for 30 odd years has known the seven Islands having all that time lived within a few miles of them in the river. They are spoken and described by I. BYRD and Joseph BYRD he has never heard the islands below called any part of the seven Islands Witness has been among them often and counted them and there are seven in the small cluster besides the Long on the Islands below have always had specific names and never was called any part of the several Island about one fourth of a mile above the seven Islands one called BAILEYs &c the Land in dispute is opposite the seven Islands in Tennessee river TUTEN was living on It before Treaty of 1819 and his indian Daughter with him TUTEN was always considered entitled to the privaleges of a native after his marriage with Rachael COODY he Lived on south side of Tennessee river till after Treaty of 1821 when removed by writ off Land in dispute STOCTON proved that when the solders came round to Drive out the whites settled on Indians Land they did not intersept(?) with TUTEN but considered him as a native the pilot or interpretor an Indian so stated It The counsel for the Defendant insisted and called on the Court to charge the Jury If they was satisfied from the Evidence TUTEN registered himself for a reservation at the place he and ROGERS sold to BIRD being the place on which BIRD now lives that he could not have his reservation surveyed and Laid off at another place Towit the Land now in dispute they also insisted that Wily TUTEN was not Entitled To a reservation -- But the Court charged the Jury that most of the points in this cause was settled by the opinion given in this cause where before the Supreme court which opinion or part of It was read by the Court to the Jury, that the Doctrine applicable to special entries did not apply to cases of reservations but came on a supposition that It did I might possibly be contended with success that this was a good special entry and referred to 3d Haywood Tennessee reports the Judge further charged the Jury that registration is primafacius evidence that TUTEN was the head of an Indian family Entitled to take reservation. Again with the proof to remove this presumption is Examined if the Jury should be satisfied that TUTEN was married to Rachael COODY a Daughter of Archy or Archibald COODY a half blood Cherokee by a white wife all resident in the ceded Treaty such proof would make him the head of an Indian family and that If his wife was dead and a child by her was Living with him at the date of the Treaty this would be family enough for him to be the head of a family under the Treaties and if with such family whatever other family he may have had he Lived in the ceded Territory with the privaleges of a cherokee from some time before the Treaties until removed by the sheriff from the place in dispute this would make him the head of an Indian family so as to Enable him to take a reservation. Again as to the place of the reservation It is not important where the register may designate it or what other improvements TUTEN may have sold and It TUTEN was resident on the Land in dispute from 1818 to and on the first day of January 1820 this will sufficiently Locate the claims the Jury formed a verdict for the plaintiff the Defendant moved for a New Trial which was refused by the court To which opinion of the court in refusing a new trial and also the charge of the Judge the Defendant excepts may be made a part of the record and signed and sealed by the Judge now here which is done accordingly. Edward SCO TT [Seal].
A copy of Exhibit A
The Deposing part of the Deposition of Isaac DAVIS
Q. By the plaintiff how long have you been acquainted with the COODY family.
A. About Eighteen years
Q. By same ware they natives of the Cherokee nation
A. They were.
Q. By the same how long have you been acquainted with me and my family.
A. About Eighteen years.
Q. By the same ware I entitled to the privaleges of the nation on account of my wife who was one of the COODY family.
A. You ware.
Q. By same Did you take protection under me on what is called the reservation including the mouth of paint rock.
A. I did.
Q. By the same how long since you took protection under me.
A. I think in the year 1815. I remained there until Samuel MARTIN took possession which I think was in the year 1818.
Q. By the same what time did I move on said Tract of Land
A. In the spring of the year 1819.
Q. By Deft. was not Charles COODY in the possession of the same in 1817 and 1818 and did you know that he sold his cherokee claim and improvements to the agent of the United States and that Samuel MARTIN got possession of that date and did not COODY tell you that he had sold all his improvements that Samuel MARTIN had bought from the Agents.
A. I Do not recollect whether he was in possession in the year 1817 & 1818 I understood he had sold all his improvements to the agent of the U. States under belief and opinion I leased from S. MARTIN as I understood to leased from the agent I dont recollect that COODY ever told me any thing about it.
Q. By the plff. Do you Know whether COODY was moving from one place to another to cut me out of my place.
A. It was so said. Thos. STOCKTON, J.P.
The Deposing part of the Deposition of Joseph BRYANT
Q. By the plaintiff do you know of your knowledge that I was lawfully married to Rachel COODY the daughter of Archibald COODY.
A. I Do and think you ware married in 1817.
Q. By the same do you know that Sally FORRISTER who I held the reservation for was the daughter of Rachel TUTEN the Daughter of Archibald COODY.
A. I understood by the woman who did know that she was Rachel TUTENs daughter who was your wife.
Q. By Defendant do you not know that there are more men concerned(?) in TUTENs suit against MARTIN for the Land he calls the reservation if so who they are.
A. I have understood that Larkin FORRISTER was conserned also CHURCHWELL & LEA attornies and did hear some person say FORRISTER & CHURCHWELL has been Talking about Leading(?) for some time past If FORRISTER gained the land and further this deponent sayeth not. Joseph BRYANT.
Thos. STOCKTON, J.P.
Deposing part of the Deposition of Isaac WALKER.
Q. By the ptff. ware you acquainted with Archibald COODY and his family.
A. I was.
Q. By the same ware they not deemed(?) natives of the Cherokee nation and Entitled to all the rights and privaleges of natives.
A. They were.
Q. By the same was you acquainted with me and my family while I was connected with the COODY family by marriage.
A. I was acquainted with her while she lived and you since.
Q. By same do you Know what time I moved to paint rock of the reservation.
A. I think in the year 1818 or 1819.
Q. By the same do you know whether I first improved that place at paint rock or not as a native.
A. I think you did.
Q. By Deft. Do you know that COODY wife was a white woman and the sister of Samuel RILEY.
A. I understood that she was the sister of Samuel RILEY who lived near COODYs on Rileys Creek and understood she was a white woman and further this Deponent sayeth not.
Thos. STOCKTON, J.P.
A Copy of Exhibit D.
Deposing Deposition of Caleb STARR
Question First by the plaintiff how long has it been since you were acquainted with old Archibald COODY and family.
Ans. Twenty five years.
Q. Was you acquainted at that time with Rachael COODY his Daughter.
Answer I had seen her tho she was small.
Q. Was you not acquainted with her till after I the plaintiff in the action married her.
Ans. I was.
Q. Was she not always recognized and acknowledged a native of the cherokee nation.
A. She was always acknowledged she was about a Quarteroon.
Q. after I married her was I not allowed the full privaleges of the Cherokee nations with rights of a native.
Ans. fully so.
Questions at the Time you was paying for Indian improvements or at any time since did I ever wish you to value my possessions or did I in any way make or surrender of them to you.
Ans. You did not Nor I niver paid you or any other person for them and further this Deponents sayeth not sworn to and subscribed to this 10th day of August 1827 before me. Caleb STARR
William COOK Justice of the
Peace for McMinnn County.
Copy of Exhibits E.
Deposing part of the Deposition of Thos. N. CLARK
Question by plaintiff how long have you been acquainted with Archibald COODY and his family.
Ans. I was acquainted with Archibald COODY from the year 1800 until his Death.
Question Was he always considered a native of the Cherokee nation and he and his family entitled to the privalege of the nations.
Ans. I always understood that they ware.
Q. 3 Ware you acquainted with his daughter Rachael COODY before and after her marriage.
Ans. I was.
Q. 4. Do you know whether I was entitled to the privaleges of a native of the Cherokee nation after my marriage with Rachael COODY or do you where I lived.
Ans. I cannot say whether you ware entitled to the privaleges of the natives of the cherokee nation but believe you resided mostly on the south side of the Tennessee river.
Q 1st by Deft. was not the mother of Rachael COODY a white woman.
Ans. I always understood her as such.
2d. by same was It understood by you from the Knowledge you had with the customs of the Cherokee nations that a white woman marrying in the nation entitled her to the privalege of a native.
Ans. I never conceived that It did and further this Deponent sayeth not.
Thomas N. CLARK
Copy of Exhibit F
Jas. G. WILLIAMS sub Agent for the United States for the Cherokee nation after being duly sworn the truth to speak Deposeth and sayeth that upon Examination of the register of Lifetime reservations I find Willy TUTEN in right of his Daughter Two in family to include the place where he now lives opposite to the seven Islands in Tennessee May 25, 1818.
Q. by ptff. Agent is this certificate here presented signed by Col. Return J. MEIGS.
Ans. It is.
Question. Are you acquainted with his hand writing and is he dead.
Ans. I am and he is Dead.
Q. Is this signature to this certificate of Wiley TUTEN reservation.
Ans. It is.
Is TUTENs name registered in on the List.
Ans. Lewis ROSSs handright as also the body of the certificate of registration Lewis ROSSs wrote.
Q. Was Lewis ROSS at that time a clerk for old MEIGS Indian agent.
Ans. He was.
Q. by agents Major BROWN Did Wily TUTEN register his name for any other reservation or at any other place.
Ans. He did not and further this Deponant sayeth not.
Jas. G. WILLIAMS.
Wiley TUTEN a Citizen of the United States having by honorable marriage connected himself with a native of the Cherokee nation and his said wife and his said wife having since Deceased Leaving one daughter in whose right said Wily TUTEN has this day registered himself in the cherokee agents office for a section of Land conformably to a Treaty concluded between the United States and the Cherokee nation on the 8th day of July 1817 considering himself at the same time under the protection of the United States and aminable(?) to the Laws of the United States. Given under my hand and seal at the Cherokee agency this 25th day of May 1818. Return J. MEIGS.