Catawba Indian Tribe of South Carolina v. State of S.C., 82-1671
| Decision Date | 17 August 1984 |
| Docket Number | No. 82-1671,82-1671 |
| Parties | CATAWBA INDIAN TRIBE OF SOUTH CAROLINA, also known as the Catawba Nation of South Carolina, 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; Pauline B |
| Court | U.S. Court of Appeals — Fourth Circuit |
Don B. Miller, Boulder, Colo., and Jean H. Toal, Columbia, S.C. (Native American Rights Fund; 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.
John C. Christie, Jr., Chicago, Ill., J.D. Todd, Jr., Greenville, S.C., James D. St. Clair, Boston, Mass. (J. William Hayton, Stephen J. Landes, Lucinda O. McConathy, Bell, Boyd & Lloyd, Chicago, Ill., 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., James L. Quarles, III, William F. Lee, David H. Erichsen; Hale & Dorr, Boston, Mass., T. Travis Medlock, Atty. Gen., Kenneth P. Woodington, Asst. Atty. Gen. for the State of South Carolina, Columbia, S.C., on brief), for appellees.
Before WINTER, Chief Judge, WIDENER, HALL, PHILLIPS, MURNAGHAN, and SPROUSE, Circuit Judges, and BUTZNER, Senior Circuit Judge. (en banc) *
The judgment of the district court is reversed, and this case is remanded for further proceedings for reasons stated in the opinion of the panel. Catawba Indian Tribe of South Carolina v. South Carolina, 718 F.2d 1291 (4th Cir.1983). Judge Widener, Judge Hall, and Judge Phillips, dissenting, would affirm the judgment of dismissal for the reasons stated in Judge Hall's dissent to the panel opinion. 718 F.2d at 1301-03.
For the reasons so cogently expressed by Judge Butzner in his opinion for the panel majority, I agree that "the Catawba Indian Tribe Division of Assets Act of 1959 did not ratify the 1840 Treaty, extinguish the Tribe's existence, terminate the trust relationship of the Tribe with the federal government arising out of the Nonintercourse Act, or make the state statute of limitations applicable to the Tribe's claim." Catawba Indian Tribe of South Carolina v. State of South Carolina, 718 F.2d 1291, 1300 (4th Cir.1983). 1 While the dissent has delivered a respectable argument to the contrary, we face at most a case in which the congressional statement is open to dual interpretations. We may, however, permit only a plain and unambiguous expression of congressional intent to abrogate a federally recognized right and terminate a trust relationship. Furthermore, construction of statutes affecting Indian tribes should proceed on the basis of tender concern for the rights of Indians. The uncertainty in statutory interpretation in the instant case is properly resolved in favor of the Catawba Tribe.
I therefore unreservedly join in the opinion of Judge Butzner, reversing the award of summary judgment in favor of South Carolina. As for the other defendants, landowners of parcels compositely comprising the 144,000 acres, no arguments separate and distinct from those advanced on behalf of the State of South Carolina have been made, and, consequently, on the present state of the record I also agree that summary judgments in their favor should be reversed.
My concurrence with respect to the private defendants, however, is a troubled one. Since the Tribe's claim at present includes the right to actual possession, a complete victory for the Catawba Tribe would leave up in the air or by the side of the road the approximately 27,000 people claiming title through deeds or other sources to the 144,000 acres. It appears to be a tacit assumption that ejectment would never be allowed actually to occur, even were we in the end to validate continued vitality of the Indian title to the 144,000 acres. Rather, through accommodation between the Indians and either or both of the United States and the State of South Carolina, the Catawba Tribe would relinquish all possessory claims in return for money or other benefits.
For myself, I take little solace in the consideration that a proper, fair and equitable result may possibly come about by reason of enlightened, but by no means mandatory, legislative or executive action. Such a posture would still leave too many innocent good faith landowners at an awesome risk that political realities related to efforts by both sovereigns to right a long standing wrong, might lead to the Queen of Spades ultimately winding up in the hands of the individual owners.
While I therefore harbor grave doubts, that, as a matter of grace, a government will rescue the current occupants of the land, I take greater comfort in the realization that there may be available on remand an argument that would at once retain the vitality of the claims of the Catawba Tribe and also afford protection to the innocent, private landowners. [A]s the Supreme Court held in Yankton Sioux Tribe v. United States, 272 U.S. 351, 47 S.Ct. 142, 71 L.Ed. 294 (1926), if the ejectment of current occupants and the repossession by the Indians of a wrongfully taken land is deemed an "impossible" remedy, id. at 357, 47 S.Ct. at 143, the court has authority to award monetary relief for the wrongful deprivation. Id. at 359, 47 S.Ct. at 144.
Oneida Indian Nation of New York v. State of New York, 691 F.2d 1070, 1083 (2nd Cir.1982). In reaching its result, the Yankton court expressed its concerns for the plight of the innocent landowners:
It is impossible, however, to rescind the cession and restore the Indians to their former rights because the lands have been opened to settlement and large portions of them are now in the possession of innumerable innocent purchasers ....
Yankton Sioux Tribe v. United States, supra, at 357, 47 S.Ct. at 144. The court concluded that, since the Indians were entitled to a judgment in their favor, but a restoration of the lands to the Indians was an impossible remedy, the Indians were "entitled to just compensation as for a taking under the power of eminent domain." Id. at 359, 2 47 S.Ct. at 144.
Under Yankton and Oneida, therefore, one or both of the sovereigns (the United States or South Carolina) may indeed owe to the Tribe just compensation. On that basis, the titles of the 27,000 landowners would be held to be paramount and they, without surrender of the land or payment in cash, would be entitled to judgment. South Carolina's liability might arise from the fact that, assuming that the 1840 Treaty is invalid under the Nonintercourse Act, the state entered into an invalid treaty with the Catawba Tribe and induced innocent landowners to settle on the land. That may be held to translate into an obligation to protect the present occupants or other claimants by paying just compensation to the Catawbas for the land.
As for the United States, 3 it remains to be explored whether liability to pay just compensation to the Indians arises, either from the Government's failure to protect their claim to possession despite the special relationship between the United States and the Indians, or from the government's failure to extinguish the Catawba's possessory claims in light of the extensive reliance by the innocent parties on apparently good and clear title. 4
The resolution of the competing claims through the just compensation concept has the great and...
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