As has been already remarked, at the time of the general removal of
the Cherokee Nation in 1838 many individuals fled to the mountains
of Tennessee and North Carolina and refused to emigrate. They always
maintained their right to an equal participation in the personal
benefits provided in the treaty of 1835, which, though not denied,
was held by the executive authorities of the United States to be
conditional upon their removal west. At length by an act of Congress
approved July 29, 1848,[531] provision was made for causing a census
to be taken of all those Cherokees who remained in the State of North
Carolina after the ratification of the treaty of 1835 and who had not
since removed west. An appropriation was made equal to $53.33-1/3 for
each of such individuals or his or her representative, with interest at
6 per cent per annum from the 23d of May, 1836. Furthermore, whenever
any of such individuals should manifest a desire to remove and join the
tribe west of the Mississippi, the Secretary of War was authorized to
expend their pro rata share of the foregoing fund, or so much thereof
as should be necessary, toward defraying the expense of such removal
and subsistence for one year thereafter, the balance, if any, to be
paid to the individual entitled. The amount of this appropriation,
it was stipulated, should be refunded to the United States Treasury
from the general fund of the Cherokee Nation under the treaty of
1835. The census mentioned was taken by J. C. Mullay in 1849, and
the number found to be entitled to the benefits of the appropriation
was 1,517,[532] which by additions was increased to 2,133. Under the
appropriation acts of September 30, 1850, and February 27, 1851, these
Cherokees remaining east of the Mississippi were entitled to their
pro rata share of the amounts thus appropriated. Alfred Chapman was
accordingly detailed[529] from the Interior Department to make the per
capita payment, and was furnished with the amounts of $41,367.31 and
$156,167.19 under those respective acts. He was directed to base his
payments upon the census roll furnished him, which showed 2,133 Indians
to be entitled. By section 3 of an act approved March 3, 1855,[530]
provision was made for the distribution per capita among the North
Carolina Cherokees on the Mullay roll[533] of the fund established
by the act of July 29, 1848, provided that each Indian so receiving
such payment in full should assent thereto. As a further condition
to the execution of this act it was stipulated that satisfactory
assurance should be given by the State of North Carolina, before such
payment, that the Cherokees in question should be permitted to remain
permanently in that State. The desired legislative assurance was
not given by North Carolina until February 19, 1866, and the money
was not, therefore, distributed, but carried to the surplus fund in
the Treasury. Afterwards, by act of March 3, 1875,[534] it was made
applicable to the purchase and payment of lands, expenses in quieting
titles, etc.
In order to determine who were the legal heirs and representatives
of those enrolled in 1849, but since deceased, the Secretary of
the Interior was directed by an act of Congress, approved July 27,
1868,[535] to cause another census to be taken, to serve as a guide
in future payments. It was further provided by the same act that the
Secretary of the Interior should cause the Commissioner of Indian
Affairs to take the same supervisory charge of this as of any other
tribe of Indians.
This second census was taken by S. H. Sweatland in 1869, and he was
instructed to make payment of interest then due to the Indians, guided
by his roll, but on the same principle on which previous payments had
been effected, that is, to those individuals only whose names appeared
on the Mullay census roll, or their legal heirs or representatives,
as ascertained by census taken by himself. As remarked by the
Commissioner of Indian Affairs, the difficulty of tracing Indian
genealogy through its various complications, in order to determine who
are legal representatives of deceased Indians, without any rules by
which hereditary descent among them may be clearly established, was
fully demonstrated in the payment made by Mr. Sweatland, which was the
occasion of many complaints and even of litigation.
The landed interests of these North Carolina Cherokees had also
since the treaty of 1835 become much complicated, and through their
confidence in others, coupled with their own ignorance of proper
business methods, they were likely to lose the title to their homes.
At this juncture Congress, by an act approved July 15, 1870,[536]
authorized suit in equity to be brought in the name of the Eastern Band
of Cherokee Indians in the district or circuit courts of the United
States for the recovery of their interest in certain lands in North
Carolina. This suit was instituted in the circuit court of the United
States for the western district of North Carolina in May, 1873, against
William. H. Thomas and William Johnston. Thomas, as the agent and
trustee of the Indians, it was alleged had received (between 1836 and
1861) from them and for their benefit large sums of money, which had or
ought to have been invested by him, in pursuance of various contracts
with the Indians, in certain boundaries of land as well as in a number
of detached tracts. The legal title to all these lands was taken by
Thomas, and was still held in his own name, he having in the mean time
become _non compos mentis_. It was alleged against the other defendant,
Johnston, that in the year 1869 he had procured sales to be made of
all these lands to satisfy judgments obtained by him against Thomas,
and that he had bought in the lands at these sales and taken sheriff's
deeds therefor, although having himself a knowledge of the existing
equities of the Indians. In fact, that after the purchase of the lands
he had entered into a contract with the Indians to release to them all
the rights he had acquired by such purchase for the sum of $30,000,
payable within eighteen months. Under this contract, and at the time of
its execution, the Indians paid him $6,500.
A suit in law was also instituted, at the same time with the foregoing,
against James W. Terrell, their former agent (from 1853 to 1861), and
his sureties, the above named Thomas and Johnston, to recover a balance
of Cherokee funds which he had received for their use from the United
States and which it was alleged he had not properly accounted for.
At the May term, 1874, of the circuit court the matters in dispute
were by agreement submitted to a board of arbitrators. The arbitrators
made their report and award, which were confirmed by the court at the
November term, 1874.
The award finds that Thomas purchased for the Indians as a tribe and
with their funds a large tract of land on Soco Creek and Oconalufty
River and their tributaries, known as the Qualla boundary, and
estimated by the arbitrators to contain 50,000 acres. It declares
that such tract belongs to and shall be held by the Eastern Band of
Cherokees as a tribe.
The award also determines the titles of a large number of individual
Indians to tracts of land outside of the Qualla boundary. It further
finds that the Indians owe Thomas a balance toward the purchase-money
of the Qualla boundary of $18,250, from which should be deducted the
sum of $6,500 paid by the Indians to Johnston, with interest thereon to
the date of the award, amounting in the aggregate to $8,486.
The award also finds that Terrell and his bondsmen are responsible to
the Cherokees for an unaccounted-for balance of $2,697.89, which should
also be deducted from the amount due Thomas, leaving a net balance
due from the Indians on the purchase money of the Qualla boundary of
$7,066. Upon the payment of this sum the award declares they should be
entitled to a conveyance from Johnston of the legal title to all the
lands embraced within that boundary.[537]
To enable the Indians to clear off this lien upon their lands,
Congress, upon the recommendation of the Indian Department, provided
by the terms of an act approved March 3, 1875,[538] that the funds
set apart by the act of July 29, 1848, should be applied under the
direction of the Secretary of the Interior for the use and benefit of
the Eastern Band of Cherokees. Specifically these funds were to be used
in perfecting the titles to the lands awarded to them and to pay the
costs, expenses, and liabilities attending their recent litigations,
also to purchase and extinguish the titles of any white persons to
lands within the general boundaries allotted to them by the court and
for the education, improvement, and civilization of their people.
This was done and the Indians have now possession of their rightful
domain.[539]