Catawba Indian Tribe of South Carolina, In re

• Decision Date: 14 August 1992
• Docket Number: No. 91-2341,91-2341
• Citation: 973 F.2d 1133
• Parties: In re CATAWBA INDIAN TRIBE OF SOUTH CAROLINA, Petitioner.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1133

973 F.2d 1133

23 Fed.R.Serv.3d 1133

In re CATAWBA INDIAN TRIBE OF SOUTH CAROLINA, Petitioner.

No. 91-2341.

United States Court of Appeals, Fourth Circuit.

Argued Feb. 4, 1992.

Decided Aug. 14, 1992.

Don Brantley Miller, Native American Rights Fund, Boulder, Colo., argued (Jay Bender, Belser, Baker, Barwick, Ravenel & Bender, Columbia, S.C., Robert M. Jones, Richard Steele, Rock Hill, S.C., on pleadings), for petitioner.

John C. Christie, Jr., Bell, Boyd & Lloyd, Washington, D.C., argued (J. William Hayton, Patrick J. Roach, Bell, Boyd & Lloyd, Washington, D.C., J.D. Todd, Jr., Michael J. Giese, Leatherwood, Walker, Todd & Mann, P.C., Greenville, S.C., Dan J. Byrd, Mitchell K. Byrd, Byrd & Byrd, Rock Hill, S.C., James D. St. Clair, James L. Quarles, William F. Lee, Hale & Dorr, Boston, Mass., T. Travis Medlock, Atty. Gen., Kenneth P. Woodington, Asst. Atty. Gen., State of S.C., Columbia, S.C., Joseph W. Grier, Jr., J. Cameron Furr, Jr., Grier & Grier, P.A., Charlotte, N.C., David A. White, Carolyn W. Rogers, Roddey, Carpenter & White, P.A., Rock Hill, S.C., on pleadings), for respondents.

Before WIDENER, HALL, MURNAGHAN, SPROUSE, NIEMEYER and LUTTIG, Circuit Judges.

ON PETITION FOR WRIT OF MANDAMUS

Petition denied by published opinion. Circuit Judge WIDENER wrote the opinion, in which Circuit Judges K.K. HALL, MURNAGHAN, SPROUSE, NIEMEYER and LUTTIG joined. ^*

OPINION

WIDENER, Circuit Judge:

Petitioner, the Catawba Indian Tribe of South Carolina (the Tribe) seeks a writ of mandamus pursuant to the All Writs Act, 28 U.S.C. § 1651(a), to compel the United States District Court for the District of South Carolina to certify a defendant class under Fed.R.Civ.P. 23. We hold that the Tribe has failed to establish that the district court's refusal to certify a defendant class constitutes such an abuse of discretion as to amount to a usurpation of the judicial power so as to justify the extraordinary remedy of mandamus. Accordingly, the petition will be denied.

I

Details of this protracted dispute between the Tribe, the State of South Carolina, and certain occupants of land in the disputed area (collectively the State) are well set out in the opinion of the United States Supreme Court in South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 106 S.Ct. 2039, 90 L.Ed.2d 490 (1986), and the prior opinion of this court, reported at 718 F.2d 1291 (4th Cir.1983), en banc, 740 F.2d 305 (4th Cir.1984); thus, we shall refer to the history of this litigation in summary only.

The case from which this petition arises concerns the Tribe's claim of ownership to a 144,000-acre tract of land located in northern South Carolina. The Tribe traces its claim to the land to two treaties with the English Crown, executed in 1760 and 1763, whereby the Tribe surrendered its aboriginal lands in return for the right to settle permanently on the "Tract of Land Fifteen Miles square" now in dispute.

In 1790, the United States Congress passed the Indian Intercourse Act, ¹ which prohibited any conveyance of tribal land without the consent of the United States. Notwithstanding this Act, in 1840 the Tribe conveyed its entire interest in the 144,000-acre tract to the State of South Carolina by entering into the Treaty of Nation Ford. The United States did not participate in this treaty, a fact upon which the Tribe's claim of title in this suit depends.

In 1959, Congress passed the Catawba Indian Tribe Division of Assets Act, 25 U.S.C. §§ 931-938 (the 1959 Act), which provided for the termination of federal services to the Tribe, the division of tribal assets to the remaining members of the Tribe, and, ultimately, for revocation of the Tribe's constitution on July 1, 1962. The implications of the 1959 Act have since formed the basis for the instant litigation.

The Tribe commenced the underlying suit on October 28, 1980. That complaint was accompanied by a motion to certify a defendant class under Fed.R.Civ.P. 23(b)(1)(B). Though the class certification motion initially was to be the first resolved, on April 20, 1981 the district court stayed its consideration of the certification issues pending resolution of the State's Fed.R.Civ.P. 12(b)(6) motion to dismiss grounded in the effect of the 1959 Act. That motion thereafter was treated as a motion for summary judgment, and on June 14, 1982 the district court entered summary judgment in favor of the State. In so holding the court found, inter alia, that the 1959 Act made state statutes of limitations applicable to the Tribe's claims.

On appeal, we reversed the judgment of the district court and held that the 1959 Act did not make the South Carolina statutes run against the Tribe's claims. 718 F.2d at 1300. Soon thereafter the United States Supreme Court granted certiorari and reversed, holding that state statutes of limitations indeed became applicable against the Tribe upon the revocation of the Tribe's charter on July 1, 1962. 476 U.S. at 510-11, 106 S.Ct. at 2046-47. The Court remanded the case to this court to determine whether or to what extent state statutes of limitations barred the Tribe's claims.

On remand, we examined South Carolina's various statutes of limitations and held that the Tribe's claim was barred "against each person who holds and possesses property that has been held and possessed adversely for 10 years after July 1, 1962, and before October 20, 1980, without tacking except by inheritance, in accordance with South Carolina's tacking doctrine." 865 F.2d 1444, 1456 (4th Cir.), cert. denied, 491 U.S. 906, 109 S.Ct. 3190, 105 L.Ed.2d 699 (1989). We remanded the case to the district court for application of those state law principles to the individual claims.

On remand in the district court, the class certification issue resurfaced in the form of the Tribe's motion to expedite consideration of the class action motion first made in 1980. On September 27, 1989, the district court denied the motion to expedite and again stayed further action on the certification question so that the individual named defendants might have an opportunity to establish the defense of the ten-year statute of limitations at the summary judgment stage. The Tribe then unsuccessfully sought a writ of mandamus to compel the district court to rule on the motion to certify a defendant class. In re Catawba Indian Tribe of South Carolina, No. 89-2831 (4th Cir. Jan. 4, 1990).

We note that the 1990 petition sought a writ of mandamus directing the district court not only to rule on the then-pending motion for class certification, but also to grant that motion and certify the defendant class. The Tribe did not seek certiorari of our denial of that petition. While we need not rely on the point, it might well be argued that the instant petition is barred by principles of res judicata or law of the case. See, e.g., United States v. Dean, 752 F.2d 535, 541 (11th Cir.1985), cert. denied, 479 U.S. 824, 107 S.Ct. 97, 93 L.Ed.2d 48 (1986); Age of Majority Educ. Corp. v. Preller, 512 F.2d 1241, 1245 (4th Cir.1975). Along the same line, the dispute over class certification has been recognized by the Tribe as early as February of 1981, when it opposed the district court's decision to defer ruling on the motion for class certification pending the court's consideration of the State's motion to dismiss the case. After the district court's entry of summary judgment in favor of all defendants on June 14, 1982, the Tribe filed its first appeal in this court. Although the Tribe in its brief in that appeal acknowledged that since early 1981 it had been aware of the due process and limitations period problems created by the district court's deferral of the class certification issue, it did not raise the issue before this court at that time. Such failure to raise this issue, assuming it appealable, in the face of the Tribe's admitted knowledge of the importance of the question to its case, can only weigh against its present petition for the extraordinary writ of mandamus. And, even if not appealable, the ability of the district court to rule or defer, or rule and change, upon the question, illustrates why such orders are not final. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 & n. 11, 98 S.Ct. 2454, 2458 & n. 11, 57 L.Ed.2d 351 (1978).

After entering summary judgment in favor of certain of the named defendants, the district court ruled on the Tribe's motion to certify a defendant class. By order dated February 14, 1990, the court denied the motion on two alternative grounds: (1) that, because each potential class member could raise the individualized, fact-based defense of adverse possession, a judgment with respect to the named defendants would not substantially impair or impede the non-party landowners' ability to protect their interests within the meaning of Fed.R.Civ.P. 23(b)(1)(B); and (2) that, by virtue of the running of South Carolina's twenty-year presumption of grant doctrine on July 1, 1982, the Tribe's claims against unnamed potential class members were time-barred, and thus the numerosity requirement of Fed.R.Civ.P. 23(a)(1) was not met. On the same day the district court declined to certify its ruling on the class certification for interlocutory appeal under 28 U.S.C. § 1292(b). The Tribe now seeks mandamus to compel the district court to reverse its decision on the certification issue.

II

In seeking a writ of mandamus, the Tribe asks this court to invoke an extraordinary and drastic remedy. Kerr v. United States District Court for Northern District of California, 426 U.S. 394, 402, 96 S.Ct. 2119, 2123, 48 L.Ed.2d 725 (1976). The very power of the writ of mandamus demands that its availability be limited to narrow circumstances lest it quickly become a shortcut by which disappointed litigants might circumvent the requirements of appellate procedure mandated by Congress. Accordingly, the courts have established a standard for the grant of a writ of mandamus sufficiently demanding to prevent...