Catawba Indian Tribe of South Carolina v. State of S.C., 82-1671

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Citation718 F.2d 1291
Docket NumberNo. 82-1671,82-1671
PartiesCATAWBA INDIAN TRIBE OF SOUTH CAROLINA, also known as the Catawba Nation of South Carolina, Appellant, v. STATE OF SOUTH CAROLINA, Richard W. Riley, as Governor of the State of South Carolina; County of Lancaster, and its County Council consisting of Francis L. Bell as Chairman, Fred E. Plyler, Eldridge Emory, Robert L. Mobley, Barry L. Mobley, L. Eugene Hudson, Lindsay Pettus; City of Rock Hill, J. Emmett Jerome, as Mayor, and its City Council consisting of Melford A. Wilson, Elizabeth D. Rhea, Maxine Gill, Winston Searles, A. Douglas Echols, Frank W. Berry, Sr.; Bowater North American Corporation; Catawba Timber Co.; Celanese Corporation of America; Citizens and Southern National Bank of South Carolina; Cresent Land & Timber Corp.; Duke Power Company; Flint Realty and Construction Company; Herald Publishing Company; Home Federal Savings and Loan Association; Rock Hill Printing & Finishing Company; Roddey Estates, Inc.; Southern Railway Company; Springs Mills Inc.; J.P. Stevens & Company; Tega Cay Associates; Wachovia Bank and Trust Company; Ashe Brick Company; Church Heritage Village & Missionary Fellowship; Nisbet Farms, Inc.; C.H. Albright; Ned Albright; J.W. Anderson, Jr.; John Marshall Wilkins, II; Jesse G. Anderson; John Wesley Anderson; David Goode Anderson; W.B. Ardrey, Jr.; Eliza Beth Ardrey Grimball; John W. Ardrey, Ardrey Farms; F.S. Barnes, Jr.; W. Watson Barron; Wilson Barron; Archie B. Carroll, Jr.; Hugh William Close; James Bradley; Francis Lay Springs; Lillian Crandel Close; Francis Allison Close; Leroy Springs Close; Patricia Close; William Elliot Close; Hugh William Close, Jr.; Robert A. Fewell; W.J. Harris; Annie F. Harris; T.W. Hutchinson; Hiram Hutchinson, Jr.; J.R. McAlhaney; F.M. Mack, Jr.; Arnold F. Marshall; J.E. Marshall, Jr.; C.E. Reid, Jr.; Will R. Simpson; John S. Simpson; Robert F. Simpson; Thomas Brown Snodgrass, Jr.; John M. Spratt; Marshal E. Walker; Hugh M. White, Jr.; John M. Belk; Jane Nisbet Goode; R.N. Bencher; W.O. Nisbet, III
Decision Date11 October 1983

Don B. Miller, Native American Rights Fund, Boulder, Colo., Jean H. Toal, Columbia, S.C. (Belser, Baker, Barwick, Ravenel, Toal & Bender, Columbia, S.C., Robert M. Jones, Rock Hill, S.C., Mike Jolly and Richard Steele, Union, S.C., on brief), for appellant.

James D. St. Clair, Boston, Mass. (James L. Quarles, III, William F. Lee, David H. Erichsen, Hale & Dorr, Boston, Mass., on brief) and John C. Christie, Jr., Chicago, Ill. (J. William Hayton, Stephen J. Landes, Lucinda O. McConathy, Bell, Boyd & Lloyd, Chicago, Ill., J.D. Todd, Jr., Michael J. Giese, Gwendolyn Embler, Leatherwood, Walker, Todd & Mann, Greenville, S.C., Dan M. Byrd, Jr., Mitchell K. Byrd, Byrd & Byrd, Rock Hill, S.C., T. Travis Medlock, Atty. Gen., Kenneth P. Woodington, Asst. Atty. Gen., State of S.C., Columbia, S.C., on brief), for appellees.

Before HALL and SPROUSE, Circuit Judges, and BUTZNER, Senior Circuit Judge.

BUTZNER, Senior Circuit Judge:

The Catawba Indian Tribe of South Carolina appeals from the district court's grant of summary judgment in favor of South Carolina and 76 other defendants. 1 The court held that the Catawba Indian Tribe Division of Assets Act, 25 U.S.C. Secs. 931-38, and the South Carolina statute of limitations, S.C.Code Ann. Sec. 15-3-340 (Law.Co-op.1976), barred the Tribe's claim to land allegedly granted to the state in 1840 in violation of the Indian Nonintercourse Act, 25 U.S.C. Sec. 177. We reverse and remand for further proceedings on the merits of the Tribe's claim. We hold only that the grant of summary judgment cannot be sustained. For the purpose of ruling whether summary judgment was appropriate, we have assumed without deciding, as did the district court, that disputed facts on which the Tribe relies are true.


Long before English and European settlers came to North America, the Catawba Tribe occupied its aboriginal territory in what is now parts of North and South Carolina. In the 1760 Treaty of Pine Tree Hill between the Tribe and the King of England's Superintendent for Indian Affairs, the Tribe relinquished its aboriginal territory in exchange for being quietly and permanently settled on a 144,000 acre tract.

The Tribe protested that England had failed to carry out the terms of the 1760 treaty and reasserted a right to its aboriginal territory. In 1763, the Tribe entered into the Treaty of Augusta with the King's representatives. In exchange for relinquishing its aboriginal territory, the Tribe again agreed to be settled on a 144,000 acre tract in South Carolina. 2 England fulfilled the terms of this treaty.

After the Revolutionary War, South Carolina initially recognized the Treaty of Augusta. There was increasing pressure from settlers, however, who wished to move onto the Tribe's land. By the 1830s, nearly all of the Tribe's land had been leased to non-Indians pursuant to state statutes. South Carolina then began to negotiate with the Tribe to purchase its land. These efforts culminated in 1840 in the Treaty of Nation Ford in which the Tribe gave up the 144,000 acres granted by the treaties of 1760 and 1763. In exchange South Carolina promised to spend $5,000 to acquire a new reservation, $2,500 cash in hand, and yearly payments of $1,500 for nine years. The United States was not a party to and did not participate in the Treaty of Nation Ford.

In 1842 South Carolina purchased a 630 acre tract for $2,000 as a new reservation for the Tribe. This land continues to be held in trust for the Tribe by South Carolina as an Indian reservation. 3

In the early 1900s, the Tribe sought to have the federal government assume responsibility for its welfare. These efforts resulted in a 1943 Memorandum of Understanding between the Tribe, the federal government, and South Carolina. 4 In accordance with this agreement, the state purchased 3,434 acres of land and conveyed it in trust for the Tribe to the United States. In addition, the United States agreed to provide economic development assistance to the Tribe, and the Tribe agreed to organize to conduct its business on the basis of the federal government's recommendations.

With the advent of the termination era in 1953, 5 the federal government designated the Tribe as a likely candidate for the withdrawal of federal services. Federal assistance during the previous decade had been minimal. In addition, members of the Tribe desired an end to federal restrictions on alienation in order to facilitate financing for farm operations, homes, and improvements on the 3,434 acre reservation.

Efforts at securing the withdrawal of federal services began in earnest in 1958 and resulted in the enactment in 1959 of the Catawba Indian Tribe Division of Assets Act. 6 The Act became effective in 1962, and the 3,434 acre reservation, which had been acquired pursuant to the 1943 Memorandum of Understanding, was distributed among tribal members, either as land or as proceeds from its sale.


In 1980 the Tribe brought suit against South Carolina and the other defendants. It claims it acquired a vested property right in the 144,000 acre reservation granted the Tribe in the 1760 and 1763 treaties and that upon our nation's independence these lands came within the scope of the federal program for the protection of Indian lands. Consequently, the Tribe asserts the 1840 Treaty of Nation Ford, whereby South Carolina purported to acquire the 144,000 acres, is void because the United States did not participate in or consent to the alienation of the Tribe's reservation as required by the Indian Nonintercourse Act. 7 The Tribe seeks to be restored to possession of its reservation as well as trespass damages for the entire period of its dispossession.

South Carolina argues the 1959 act of Congress bars the Tribe's claim. It contends that Sec. 935 8 terminates the Tribe, ends any trust relationship between the Tribe and the federal government, and makes state law applicable to the Tribe's claim. The state also argues that the legislative history supports this interpretation and indicates Congress intended to ratify the 1840 Treaty.

The Tribe counters by arguing that Sec. 935 on its face only terminates federal services to the tribe and makes state law applicable to the individual Indians, not to tribal claims. Furthermore, it argues the text and legislative history indicate Congress only intended to end the federal relationship with the Tribe created by the 1943 Memorandum of Understanding and did not intend to affect any tribal claims arising out of the 1760 and 1763 treaties.

On cross-motions for summary judgment, the district court assumed, without deciding, that prior to 1959 the Tribe was a "tribe" within the meaning of the Nonintercourse Act; that the 1760 and 1763 treaties granted the Tribe some interest in the land in issue; that the land was covered by the Nonintercourse Act; and that prior to 1959 the United States neither approved, ratified, nor consented to the 1840 Treaty of Nation Ford. The court also assumed that a trust relationship existed between the Tribe and the United States at least up to 1959.

The district court granted South Carolina's motion for summary judgment. It held that the 1959 Act extinguished the Tribe's existence; ratified the 1840 treaty; terminated the trust relationship between the Tribe and the federal government; and made state law applicable to the Tribe's claim. It then held that the state statute of limitations barred the claim.


In Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 667-68, 94 S.Ct. 772, 777, 39 L.Ed.2d 73 (1974), the Supreme Court reiterated the nation's policy with respect to lands occupied by Indians:

It very early became accepted doctrine in ...

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