Catawba Indian Tribe v. South Carolina

K.K. HALL, Circuit Judge,

dissenting:

I cannot accept the majority’s conclusion that the district court erred in granting defendants’ motion for summary judgment and in dismissing plaintiff’s action. In my view, the 1959 Catawba Indian Tribe Division of Assets Act, 25 U.S.C. § 931 et seq., unquestionably terminated the Tribe’s legal existence, ended any trust relationship between the Catawbas and the federal government, and made South Carolina law fully applicable to whatever claim plaintiff may have had to the Tribe’s ancestral land. I agree with the district court that plaintiff’s claim, if valid at all, is in any event barred by South Carolina’s statute of limitations governing real property. I must, therefore, dissent.

Plaintiff in this case, a non-profit corporation, alleges that it is the successor to the Catawba Indian Tribe and that, as such, it has an ownership interest in approximately 144,000 acres of land in three South Carolina counties. According to the record, however, by 1840, the Catawbas had leased to white settlors all of the 144,000 acres now in dispute.¹ In 1840, the Catawbas entered into an agreement with the State of South Carolina, known as the Treaty of Nation Ford, in which they gave up any remaining interest they had in the 144,000 acres. Now, by seeking to defeat this 1840 transaction, plaintiff requests relief which would destroy the titles of more than 27,000 South Carolina citizens. In light of this history and because of the provisions of the Catawba Act, it is clear to me that plaintiff’s claim to the Tribe’s ancestral land must fail.

Unlike the majority, I am convinced that the central purpose of the Catawba Act was to terminate federal responsibility to the Tribe and its individual members. Partial termination was specifically rejected by the bill’s sponsor and the Catawbas, who voted in favor of complete termination. Furthermore, the plain and far-reaching language of the Act clearly reflects congressional intent to terminate any special federal status the Catawbas may previously have held and to put them on an equal footing with other citizens. To this effect, the Act even includes a provision which revokes the tribe’s constitution. Under Section Five of the Catawba Act, 25 U.S.C. § 935:

The constitution of the tribe adopted pursuant to ... this title shall be revoked by the Secretary. Thereafter, the tribe and its members shall not be entitled to any of the special services performed by the United States for Indians because of their status as Indians, all statutes of the United States that affect Indians because of their status as Indians shall be inapplicable to them, and the laws of the several States shall apply to them in the same manner they apply to other persons or citizens within their jurisdiction. Nothing in this subchapter, however, shall affect the status of such persons as citizens of the United States. (Emphasis added).

Section 6 of the Catawba Act, 25 U.S.C. § 936, similarly provides that “[njothing in this subchapter shall affect the rights, privileges, or obligations of the tribe and its members under the laws of South Carolina.” (Emphasis added).

In my view, the revocation of the Tribe’s constitution unequivocally ended the Catawbas’ existence as a political or governmental entity under federal law and prevents plaintiff from having the necessary standing to bring this action under the Nonintercourse Act. As the majority opinion correctly notes, there are four prerequisites to establishing a prima facie case under the Nonintercourse Act. Epps v. Andrus, 611 F.2d 915, 917 (1st Cir.1979). One of these requirements is that plaintiff show that it is or represents an Indian tribe. In my view, the revocation of the Tribe’s constitution makes it impossible for plaintiff to establish this necessary element of a prima facie case. Furthermore, the revocation of the Catawbas’ tribal constitution terminated the trust relationship between the Tribe and the United States, rendering it impossible for plaintiff to meet yet another prerequisite to a prima facie case under the Non-intercourse Act. Because plaintiff can establish neither of these requirements, its claim under the Nonintercourse Act is fatally defective.

Moreover, the explicit statutory language of Sections 5 and 6 of the Catawba Act makes it clear that the legislation was intended to accord the Catawbas the same privileges and responsibilities as other South Carolina citizens. Thus, from the time the tribe’s constitution was revoked on July 1,1962, the Catawbas, and any federal claim they might have then had, were subject to the operation of state law in the-same manner as all other citizens of South Carolina and their claims.

One of the laws that became applicable to the Catawbas in 1962 was South Carolina’s statute of limitations governing real property claims. S.C.Code § 15-3-340 states in pertinent part that “[n]o action for the recovery of real property or for the recovery of the possession thereof shall be maintained unless it appear that the plaintiff, his ancestor, predecessor or grantor, was seized or possessed of the premises in question within ten years before the commencement of such action.” Thus, even if the Catawba Act did not extinguish the Catawbas’ claim to the land which their ancestors had long since alienated, this suit, brought some 18 years after the statute of limitations had begun to run, is unquestionably time-barred.

The application of South Carolina’s statute of limitations in this case is entirely consistent with Supreme Court precedent. In Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972), the Supreme Court’s most recent decision construing a termination act, terminated Indians were required to challenge allegedly fraudulent transfers of property under the same laws as non-Indians. In an earlier decision, Schrimpscher v. Stockton, 183 U.S. 290, 22 S.Ct. 107, 46 L.Ed. 203 (1901), Indian heirs sued to recover land conveyed by a Wyandotte Indian at a time when alienation was prohibited by federal treaty. In light of a subsequent treaty, which had terminated such restrictions, the Supreme Court held that the state statute of limitations had run, precluding recovery:

Their disability terminated with the ratification of the treaty of 1868. The heirs might then have executed a valid deed of the land, and possessing, as they did, an unincumbered [sic] title in fee simple, they were chargeable with the same diligence in beginning an action for their recovery as other persons having title to lands; in other words, they were bound to assert their claims within the period limited by law. This they did not do under any view of the statute, (whether the limitation be three or fifteen years), since it began to run at the date of the treaty, 1868, and the action was not brought until 1894, a period of over twenty years. Id. at 296, 22 S.Ct. at 110. (Emphasis added).

See also, Dillon v. Antler Land Co., 341 F.Supp. 734 (D.Mont.1972), aff’d 507 F.2d 940 (9th Cir.1974), cert. denied, 421 U.S. 992, 95 S.Ct. 1998, 44 L.Ed.2d 482 (1975); Dennison v. Topeka Chambers Industrial Development Corp., 527 F.Supp. 611 (D.Kan.1981) (both holding that state statutes of limitations begin to run once restrictions are removed and state law is made applicable).²

As the Tenth Circuit noted in Reyos v. United States, 431 F.2d 1337, 1343 (10th Cir.1970), aff’d in part and rev’d in part, Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972), “[i]t is not for administrative officials or for the courts to modify this statutory termination by the creation of some status lying between wardship and complete termination.” I submit that the majority in this case has impermissibly substituted its own judgment for that of Congress. By doing so, it has succeeded in nullifying the clear mandate of the Catawba Act and has placed in jeopardy the long-established rights of over 27,000 South Carolina citizens. Because I believe the district court was correct in dismissing plaintiff’s action, I would affirm the judgment below.

1 . The 1763 Treaty of Augusta, entered into between the Tribe and the representatives of the King of England, in which the Catawbas agreed to be settled on the 144,000-acre tract, contained no restrictions on alienating this property.

2 . The majority’s reliance on the Supreme Court’s decision in Menominee Tribe of Indians v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968), is misplaced. In Menominee, the tribal constitution was not revoked, as in the present case. Furthermore, the hunting and fishing rights, which were the subject of the Menominees’ claim, had never been alienated. In this case, the Catawbas have not occupied the property in question for more than 180 years.