Catawba Indian Tribe of South Carolina v. State of S.C.

• Citation: 865 F.2d 1444
• Decision Date: 23 January 1989
• Docket Number: No. 82-1671,82-1671
• Parties: CATAWBA INDIAN TRIBE OF SOUTH CAROLINA, also known as the Catawba Nation of South Carolina, Appellant, v. STATE OF SOUTH CAROLINA, et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1444

865 F.2d 1444

CATAWBA INDIAN TRIBE OF SOUTH CAROLINA, also known as the Catawba Nation of South Carolina, Appellant, v. STATE OF SOUTH CAROLINA, et al., Appellees.

No. 82-1671.

United States Court of Appeals Fourth Circuit.

Argued April 6, 1988.

Decided Jan. 23, 1989.

Jerry Jay Bender (H. Clayton Walker, Jr., Jean H. Toal, Belser, Baker, Barwick, Ravenel, Toal & Bender, Columbia, S.C., Don B. Miller, Native American Rights Fund, Boulder, Colo., Robert M. Jones, Richard Steele, on brief), for appellant.

J.D. Todd, Jr. (Michael J. Giese, Gwendolyn Embler, Leatherwood, Walker, Todd & Mann, Greenville, S.C., John C. Christie, Jr., J. William Hayton, Patrick J. Roach, Janet F. Satterwhite, Brian A. Runkel, Bell, Boyd & Lloyd, Washington, D.C., Dan M. Byrd, Jr., Mitchell K. Byrd, Byrd & Byrd, Rockhill, S.C., T. Travis Medlock, Atty. Gen., Kenneth P. Woodington, Asst. Atty. Gen., James D. St. Clair, P.C., James L. Quarles, III, William F. Lee, Daniel Solomon, Hale & Dorr, Boston, Mass., on brief), for appellees.

Before WIDENER, HALL, PHILLIPS, MURNAGHAN and SPROUSE, Circuit Judges, and BUTZNER, Senior Circuit Judge.

BUTZNER, Senior Circuit Judge:

The Supreme Court remanded this case for us to determine whether the claim of the Catawba Indian Tribe to a tract of land is barred by South Carolina statutes of limitations. South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 106 S.Ct. 2039, 90 L.Ed.2d 490 (1986). We hold that the statutes of limitations pertaining to disabled persons, sections 15-3-370 and 15-3-40 of the Code of South Carolina, do not bar the tribe from maintaining this action. We also hold that sections 15-3-340 and 15-67-210 bar the tribe from recovering possession and damages from a person who holds and possesses property that has been held and possessed adversely to the tribe's legal title for ten years after the revocation of the tribe's constitution, July 1, 1962, and before the commencement of this action, October 20, 1980, without tacking except by inheritance. We also hold that the statutes of limitations do not bar the tribe from recovering possession and damages from other persons. We therefore affirm in part and reverse in part the district court's grant of summary judgment in favor of the state and all persons in possession and remand the case for further proceedings on the issues remaining to be tried.

I

The facts that we assume for the purpose of summary judgment are recounted in the majority and dissenting opinions of the Supreme Court ¹ and need only be summarized here. In the 1760 Treaty of Pine Hill and the 1763 Treaty of Augusta, the tribe agreed with representatives of the King of England to relinquish its aboriginal territory in exchange for permanent resettlement on a fifteen square mile tract in South Carolina. In the 1840 Treaty of Nation Ford, the tribe transferred its interest in the tract to South Carolina. The United States did not participate in the Treaty of Nation Ford.

In 1959, Congress passed the Catawba Act, 73 Stat. 592, 25 U.S.C. Secs. 931-38 (1976), which ultimately led to the revocation of the tribe's constitution on July 1, 1962. As of that date, the tribe's claim to the land it relinquished in 1840 became subject to South Carolina statutes of limitations.

In 1980, the tribe brought suit to recover possession of its land and damages. It asserts that the 1840 Treaty of Nation Ford was void because the United States did not participate in it or consent to the alienation of the tribe's reservation as required by the Indian Nonintercourse Act. ²

II

The state argues that the tribe was a disabled plaintiff within the meaning of sections 15-3-370 and 15-3-40 from 1840 to 1962, when Congress passed the Catawba Act. Therefore, the state asserts, the tribe had no longer than ten years after 1962, when its disability was lifted, to bring suit. According to the state, since the tribe did not file suit within this period, the statute of limitations bars its claim. ³

Section 15-3-370 on which the state primarily relies provides:

Persons under disability.

If a person entitled to commence any action for the recovery of real property, or make an entry or defense founded on the title to real property or to rents or services out of the same be, at the time such title shall first descend or accrue, either:

(1) Within the age of eighteen years;

(2) Insane; or

(3) Imprisoned on a criminal or civil charge or in execution upon conviction of a criminal offense for a term less than life;

The time during which such disability shall continue shall not be deemed any portion of the time in this article limited for the commencement of such action or the making of such entry or defense, but such action may be commenced or entry or defense made after the period of ten years and within ten years after the disability shall cease or after the death of the person entitled who shall die under such disability. But such action shall not be commenced or entry or defense made after that period.

Section 15-3-40 recognizes identical disabilities for other causes of action.

The state's position cannot be reconciled with section 15-3-370. The statute applies to only three classes of plaintiffs: infants, the insane, and persons imprisoned for less than their natural lives. Nothing in the statute creates a fourth class of plaintiffs in the tribe's position. Application of the statute obliges us to ascertain the legislature's intent. We cannot read something into the statute that the legislature did not contemplate. Quoting its precedents, the South Carolina Supreme Court has emphasized:

[C]ourts have no legislative powers, and in the interpretation and construction of statutes their sole function is to determine, and within the constitutional limits of the legislative power to give effect to, the intention of the Legislature. They cannot read into a statute something that is not within the manifest intention of the Legislature as gathered from the statute itself. To depart from the meaning expressed by the words is to alter the statute, to legislate and not to interpret. The responsibility for the justice or wisdom of legislation rests with the Legislature, and it is the province of the courts to construe, not to make, the laws.

Belk v. Nationwide Mutual Insurance Company, 271 S.C. 24, 27, 244 S.E.2d 744, 746 (1978). We conclude that the Supreme Court of South Carolina would not construe sections 15-3-370 and 15-3-40 to include Indians in the legislatively defined class of disabled persons. Therefore we hold that the disability statutes do not bar the tribe's claim.

III

Section 15-3-340 provides that no action for the recovery of possession of real property shall be brought unless the plaintiff or his predecessor was seized or possessed of the premises within 10 years before the commencement of the action. Section 15-67-210 creates a presumption of possession if the plaintiff establishes legal title. ⁴ The tribe acknowledges that it has not been in possession of the tract since 1840, but it maintains that it has Indian title to the tract and that Indian title is legal title within the meaning of section 15-67-210. Therefore, the tribe claims that it is entitled to the presumption of possession prescribed in section 15-67-210 and that the state cannot defeat its claim on the basis of the statute of limitations. The state argues that the tribe is not entitled to the presumption because Indian title is not legal title and that the presumption is inapplicable because the tribe admits it has been out of possession since 1840.

Indian title is a creation of federal law. It is the title given to land occupied by Indians when the United States gained its independence from Great Britain and became the sovereign. Indian title includes a right to possession superior to that incident to fee simple title; where Indian title and fee simple title coexist, the fee simple interest operates merely as a reversionary right to possession which can take effect only when Congress extinguishes the Indian title. Indian title includes the right to exclude all others, including holders of fee simple title, through state law possessory actions such as ejectment and trespass. Indian title cannot be alienated except by Act of Congress; a purported conveyance of the possessory right, even if made by a tribe having such title, is void and no title passes. Except where Congress provides otherwise, claims based on Indian title are not subject to state law defenses such as statutes of limitations, adverse possession, or laches. See generally Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666-74, 94 S.Ct. 772, 776-81, 39 L.Ed.2d 73 (1974); F. Cohen, Handbook of Federal Indian Law, 471-574 (1982 ed.).

The state correctly points out that the 1763 Treaty of Augusta, which is the source of the tribe's Indian title, is not recorded in the Registry of Mesne Conveyances. Relying on this fact, it argues that the tribe's Indian title is not legal title. It insists that legal title is record title; that is, the title that is reflected in the Registry of Mesne Conveyances, and it cites numerous cases from South Carolina and other jurisdictions that refer to legal title and record title synonymously. ⁵

Neither South Carolina nor federal law supports the state's argument. The tribe's source of title is recorded, though not in the Registry of Mesne Conveyances. The Treaty of Augusta recites that the Catawbas accepted "the Tract of Land of Fifteen Miles square, a Survey of which by our consent and at our request has been already begun." XI Colonial Records of North Carolina 201-02 (1763). Current South Carolina law affirms that the survey was filed in the office of the Secretary of State. Section 27-15-30 describes the Catawba Indian lands as "situated in the counties of York and Lancaster, within a boundary of fifteen miles square and which are represented in the plat of survey made by Samuel Wiley, dated...