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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 $53.33¹/₃ 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 detailed529 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 roll533 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