Catawba Indian Tribe of South Carolina v. U.S.

• Decision Date: 06 January 1993
• Docket Number: No. 92-5018,92-5018
• Citation: 982 F.2d 1564
• Parties: The CATAWBA INDIAN TRIBE of SOUTH CAROLINA, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1564

982 F.2d 1564

The CATAWBA INDIAN TRIBE of SOUTH CAROLINA, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.

No. 92-5018.

United States Court of Appeals,

Federal Circuit.

Jan. 6, 1993.

Don B. Miller, Native American Rights Fund, Boulder, CO, argued, for plaintiff-appellant.

Katherine L. Adams, Environment and Natural Resources Div., Dept. of Justice, DC, argued, for defendant-appellee. With her on the brief were Miles E. Flint, Deputy Asst. Atty. Gen., J. Carol Williams and Andrew M. Eschen, Attorneys.

Before MAYER, MICHEL, and PLAGER, Circuit Judges.

PLAGER, Circuit Judge.

In this case, the Catawba Indian Tribe (the Tribe) alleges a series of wrongful acts by the United States Government which, the Tribe contends, caused substantial financial harm to the Tribe through the loss of some, if not all, of their ancestral lands.

After having failed in its effort to recover the actual lands themselves, ¹ the Tribe now asks compensation for the loss, and, on the basis of the Tucker Act, seeks the aid of the United States Claims Court ² in obtaining that compensation. The Claims Court, on the grounds that the relevant statutes of limitations have run against the Tribe's claim, dismissed the suit. Catawba Indian Tribe v. United States, 24 Cl.Ct. 24 (1991). The only question before us is whether the Claims Court was correct in so ruling. We hold it was and therefore affirm.

I. BACKGROUND

A.

While some would view the origins of this case to be the era when European adventurers came upon the vast North American continent and the peoples whose home it was, the legal issues in this case date from 1763. In that year the King of England conveyed to the Catawba Tribe, then occupying areas of what later became North and South Carolina, a 15 square mile tract, about 144,000 acres, to be their ancestral home. ³ The Tribe subsequently occupied that tract, now wholly within the boundaries of South Carolina.

The Tribe alleges that when the United States was formed, it succeeded to the position of the grantor, with all that entails. Over the years the United States did assume a trustee relationship with the various Native American tribes, including the Catawbas. In that capacity the Government undertook a number of actions intended to assist Native American tribes in their efforts to accommodate to the influx of others into the country.

One of these efforts took the form of an act known as the Nonintercourse Act. Under the terms of the earliest version of the Nonintercourse Act, effective in 1790, (now codified as re-enacted and amended at 25 U.S.C. § 177 (1988)), transfers of title to Native American lands were prohibited unless pursuant to a treaty approved by the United States.

Despite this law, and without approval from the United States, the State of South Carolina in 1840 negotiated with the Tribe an agreement--known as the Treaty of Nation Ford--under which the Tribe conveyed its entire 144,000 acres of ancestral lands to the State for $16,000 and a promise that it would be given a new reservation somewhere in the State as its tribal land. ⁴ Over the years the State conveyed that original 144,000 acre tract into private ownership, and title to it is now in some 27,000 different owners.

In 1940, the Federal Government undertook tripartite negotiations with the Tribe and South Carolina. South Carolina sought a release and quit-claim from the Tribe in exchange for its participation in a joint rehabilitation program. The Federal Government doubted the legality of this exchange and refused to agree. Then in 1943, the parties signed a Memorandum of Understanding which transferred to the In the 1950's, Congress decided to terminate the Government's trustee relationship with the various Native American tribes. A series of acts ensued, known as the Termination Acts. It was the manner in which the Termination Act applicable to the Catawba Tribe was negotiated and executed that gives rise to many of the Tribe's claims in this litigation.

                Federal Government 3,434 acres to hold in trust for the Tribe.   The Federal Government agreed to provide additional services, and the Tribe adopted a constitution.   However, under the agreement the historic land claim remained intact, and unresolved
                

B.

The Tribe alleges that in 1958-59 a representative of the Bureau of Indian Affairs (BIA), on behalf of the Federal Government, undertook negotiations with the surviving members of the Tribe looking to an agreement under which the Government's trustee relationship to the Tribe would be ended, the Tribe and its members would be released from any special relationship to the Government, and the Government would no longer have responsibility for the well-being of the Tribe. During the course of these negotiations, the Tribe reasserted its long-standing grievance involving its ancestral lands. The Tribe alleges that it was assured that the termination of the Government's trusteeship would not affect its rights under that claim.

Subsequently, with the cooperation of the Tribe, a draft act was prepared and submitted to Congress. On September 21, 1959, the Catawba Indian Tribe Division of Assets Act, now codified at 25 U.S.C. §§ 931-938 (1988) (the Termination Act or Act), was enacted. Following affirmation by the Tribe members, as provided by the Act, the Termination Act became effective by declaration of the Secretary of the Interior on July 1, 1962.

Section 5 of the Act, now codified at 25 U.S.C. § 935, contains the following provision:

The constitution of the tribe ... 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. (Emphasis added).

The meaning and effect of this particular section of the Act, and especially the emphasized language, is a central issue in the current dispute over ownership of the lands in question, the dispute which gave rise to this action.

In 1980 suit was brought in the Federal District Court of South Carolina on behalf of the Catawba Tribe against various private landowners, claiming ownership in the Tribe of the original ancestral lands. The specific parcels involved were among those that had long ago been conveyed by the State into private ownership. The landowners responded that, even if the Treaty of Nation Ford was invalid, as alleged, section 5 of the Termination Act made the Tribe subject to all State laws, including the South Carolina law on adverse possession. Under the State's law, any landowner who could prove ten years continuous adverse possession would be entitled to keep the land, even against the true owner.

The Tribe responded that, in view of the specific understandings with the Federal Government that accompanied the drafting and enactment of the Termination Act concerning the preservation of their historic claim, the Act could not have been intended to, and did not, have that effect. The District Court ruled in favor of the landowners in 1983.

On appeal to the Fourth Circuit, that court reversed, holding that ambiguous statutes affecting the Tribe should not be construed to their prejudice, and accordingly, the ambiguous phrasing of section 5 must be construed to exclude any congressional intent to adversely affect the Tribe's land claim. The Fourth Circuit held that the provision was intended only to end federal supervision and assistance. Catawba The Supreme Court granted certiorari and reversed the Fourth Circuit. The Court held that the Termination Act provision applied in all respects, and that the Tribe's claim to its land was subject to any adverse possession rights which may have accrued under South Carolina law. South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 106 S.Ct. 2039, 90 L.Ed.2d 490 (1986). On remand to the Fourth Circuit, that court held that adverse possession for ten continuous years subsequent to July 1, 1962 would bar the Tribe's claims against individual possessors. 865 F.2d 1444 (4th Cir.), cert. denied, 491 U.S. 906, 109 S.Ct. 3190, 105 L.Ed.2d 699 (1989). Subsequently the District Court, on July 19, 1990, dismissed the Tribe's claims to parcels totalling about 75% of the original acreage. See 24 Cl.Ct. at 28.

Indian Tribe v. South Carolina, 718 F.2d 1291, 1296-97 (4th Cir.1983), adopted en banc, 740 F.2d 305 (4th Cir.1984).

C.

Stymied in its efforts to regain its ancestral lands, the Tribe in 1990 turned to the Claims Court for relief under a new theory. The Tribe proffers seven claims upon which it argues monetary relief from the United States should be granted. Claims 1 and 2 allege breach of fiduciary duty based on the Government's permitting South Carolina to acquire the original lands, and subsequent failure to investigate and restore the Tribe to possession.

Claim 3 alleges a continuing breach of fiduciary duty to protect the viability of the Tribe's land claim, based, inter alia, upon the Government's conduct and affirmative acts before, during, and after the enactment of the Termination Act. The Tribe alleges that as part of the approval action by the Tribe, the Tribe was assured that nothing in the Termination Act would affect the Tribe's claim to its ancestral lands.

These alleged Governmental assurances turned out to be wrong, and form the basis for the Tribe's claim that the Government failed to protect the Tribe's land claim by a breach of a duty to notify the Tribe of the effect of the 1959 Termination Act (claim 4), breach of an implied-in-fact contract that the ensuing losses the Tribe sustained would not happen (claim 5), ⁵ and a Fifth Amendment taking of a vested property right--the claim to the...