Opposition Brief — South Carolina v. Catawba Indian Tribe of South Carolina, Inc.

Ax ——

(2) Supreme Court, U.Ss

No. 88-1752 |? Ts

In The MAY 24 1989

Supreme Court of the United|Stat@S.ce ~

October Term, 1988

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STATE OF SOUTH CAROLINA, et al.,

V. Petitioners,

CATAWBA INDIAN TRIBE OF SOUTH CAROLINA,

Respondent.

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_

On Petition For Writ Of Certiorari To The United States

Court Of Appeals For The Fourth Circuit

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RESPONDENT TRIBE’S

BRIEF IN OPPOSITION

,%

-_

Don B. MILLER

Counsel of Record

Native American Rights Fund

1506 Broadway

Boulder, CO 80302

(303) 447-8760

Jay BENDER

BELSER, BAKER, BARWICK,

RAVENEL & BENDER

1730 Main Street

Columbia, SC 29202

(803) 799-9091

Rosert M. JONEs

123 Workman Street

Rock Hill, SC 29730

(803) 324-2988

RICHARD STEELE

113 W. Main Street

Union, SC 29379

(803) 427-5237

Attorneys for Respondent

Catawba Tribe

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

In South Carolina v. Catawba Indian Tribe, 476 U.S. 498

(1986), this Court held that the 1959 Catawba Division of

Assets Act required application of the South Carolina

statute of limitations to the Catawba Tribe’s land claims.

Because the Court of Appeals had not reached the state

law issue, this Court remanded the case. The question

presented is:

Whether the Court of Appeals erred in its application

of the South Carolina statute of limitations to the Tribe’s

federal claims to treaty lands when it ruled that the

Tribe’s claim is barred only against those persons who

had adversely possessed property for 10 years after July

1, 1962 and before October 20, 1980, without tacking

except by inheritance.

il

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......24.035 44 ee i

TASLE OF AUTHORITIES... 03.5505 ee iv

SIALEMENT OF THE CASE.....0.45-00 oe 1

L Nahare Of the Case ....¢...is53.0 1

Il. Prior Proceedings and the Issues For Review... 2

REASONS FOR DENYING THE WRIT............. 4

I. The Court Of Appeals Followed This Court's

Mandate And Correctly Decided The State

LOW TOG 6 6560s is ee ce i ave eee a 4

A. Petitioners’ Assertion that the Court of

Appeals Disregarded This Court’s Man-

date and Failed to Rely on State Law is

Incorrect: Their Claim that the Court of

Appeals was Determined to Disregard

This Court’s Mandate is Unwarranted... 4

B. The Court Of Appeals Correctly Decided

the State Law Issue: While South Caro-

lina’s 10-Year Statute does not Permit

Tacking, the State’s Policies of Stability

and Repose are Satisfied by an Overall

Limitations Scheme that Includes a 20-Year

Presumption of Grant and 40-Year Statute

of Repose Under Both of which Tacking is

POTOMMAEE 62. os on 5 a ee 12

ili

TABLE OF CONTENTS - Continued

Page

1. Because the Tribe's Claim was Filed Before

the 20-Year Common Law Presumption of

Grant Became Applicable (18 Years After

the Statute of Limitations Began to Run),

Only Those Defendants Who Can Prove

10 Years’ Adverse Possession Without

Tacking May Prevail Against the Tribe.. 12

2. Predecessors of the South Carolina

Supreme Court Have Recognized Both

Indian Title and a Reservation Granted by

the Crown to be Enforceable at Law and

Superior to Subsequent Grants from the

State: No South Carolina Cases Hold that

“Legal Title” is Restricted to “Record

ant ng it SEE SES trea 17

II. The Court Of Appeals Correctly Held That Under

Federal Law, Indian Title Is Legal Title ........ 22

lll. Review At This Time Would Be Premature: The

Complaint Has Not Been Answered And A

Defendant Class Has Not Been Certified....... 26

IV. Petitioners’ Exaggerated Fears Of Hardship

Resulting From The Lower Court’s Ruling Are

Unfounded Because Congress Will Certainly

Resolve This Claim If It Proceeds To The

en nee 27

iv

TABLE OF AUTHORITIES

Page

CASES

Adams v. Adams, 220 S.C. 131, 66 S.E.2d 809

Gn) 5 a ge crn ak eh Biren hen Repair Cee Bevan RES EPR Pata am Apr gray ON 16

Adams v. Chaplin, 10 S.C. (1 Hill) Eq. 265 (1833)....25

Beecher v. Wetherby, 95 U.S. 517 (1877) ............. 24

Brockett v. Spokane Arcades, Inc., 472 U.S. 491

CE soso Oo ork Se eee ee ees 11

Burnett v. Crawford, 50 S.C. 161, 27 S.E. 645 (1897) .... 16

Buttz v. Northern Pacific Railroad Co., 119 U.S. 55

CO ots ns ek ah ea a ee eRe 24

Catawba Indian Tribe v. State of South Carolina,

‘gt Oe” ge oe Be ae, | eee ere eee ee 2

Catawba Indian Tribe v. State of South Carolina,

TOR Fiat ee CR Se - TS ice es kc ca eeckssd se acns 27

Catawba Indian Tribe v. State of South Carolina,

865 F.2d 1444 (4th Cir. 1989)........... 3, 6, 9, 11, 20

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1

ERE ea eae s or CCU ROL esa ee Glia Gs aera 24

Chisoim wv: Caines, G7 F. 265 (iS94) ... 2.26.2 eeceees 19

Crotwell v. Whitney, 229 S.C. 213, 92 S.E.2d 473

“Cn Sean opt ae UM apn dee anh e Wenner nea Le etree 16

Delleney v. Winnsboro Granite Co., 72 S.C. 39, 51

a ER i vg cha apa eae oe ee eee ee ea eee zi

Eilon ¥. Beet, 16 GC. Tae CEST). ia see iccc esac 16

Epperson v. Stansill, 64 S.C. 485, 42 S.E. 426 (1902).... 16

TABLE OF AUTHORITIES - Continued

Page

First Carolina Joint Stock Land Bank v. Hudgens,

S71 BA. 16, 071 Sb. OOP OGRE s oases nis ccc si caxs 21

Garrett v. Weinberg, 48 S.C. 28, 26 S.E. 3 (1896)..... 16

Gregg v. Moore, 226 S.C. 366, 85 S.E.2d 279 (1954) .... 16

Haithcock v. Haithcock, 123 S.C. 61, 115 S.E. 727

ER ols CSR KEYS Cues eee 16, 20

Ary Re Aer en nee Manin BMRA, cA 7 2 5, 18, 20

Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823) .23, 26

Joint Tribal Council of the Passamaquoddy Tribe

v. Morton, 528 F.2d 370 (1st Cir. 1975)............ 27

Lewis v. Pope, 86 S.C. 285, 68 S.E. 680 (1910)....... 16

Love v. Turner, 71 S.C. 322, 51 S.E. 101 (1905)....... 16

Mitchel v. United States, 34 U.S. (9 Pet.) 711 (1835) .22, 23

Moore v. McClure, 4 S.C.L. 139 (1007)... ......2000%. 19

Narragansett Tribe of Indians v. So. R.I. Land

Devel. Corp., 418 F. Supp. 798 (D.R.I. 1976)....... 27

Oneida Indian Nation v. County of Oneida, 414

AF ON NOP PME cs ono tae eae a se ko ta 4

Oneida v. Oneida Indian Nation, 470 U.S. 226

SPORE Fo :ba ccna e bake SE ek ae a Lee fey By

Pembaur v. Cincinnati, 475 U.S. 469 (1986)....... Li, 21

Frsopper v. Clark, 337 US. 472 (1989) . 2... 155444. ai, ae

vi

TABLE OF AUTHORITIES - Continued

Page

Schaghticoke Tribe of Indians v. Kent School

Corp., 423 F. Supp. 780 (D.Conn. 1976) ........... 27

Scott v. Woodard, 2 McCord 161 (S.C. 1822)......... 21

Shoshone Tribe v. United States, 299 U.S. 476

sae erie ere eye are 23

Sioux Tribe v. United States, 316 U.S. 317 (1942) .... 23

Skillern’s Ex’rs v. May’s Ex’rs, 10 U.S. (6 Cranch)

Re et ROE BEAM ARN Lp REE i he Dont 11

South Carolina v. Catawba Indian Tribe, 476 U-S.

I rr or orn oe ce ee 2,4 7,8 13

State Ex Rel. McLeod v. Sloan Const. Co., 284 S.C.

it, ace oe O64 GC. App. 1985) o.oo se sce 19

State v. Pacific Guano Company, 22 S.C. 50 (1884) .... 19

Stokes v. Murray, 102 S.C. 395, 87 S.E. 71 (1915) .... 16

Sutton v. Clark, 59 S.C. 440, 38 S.E. 150 (1901)

ee wee a Okabe eeu RAE eae 16, 21, 25

Tee-Hit-Ton Indians v. United States, 348 U.S. 272

ee tee am bees ree 23

The Tungus v. Skovgaard, 358 U.S. 588 (1959)....... 21

Thomas v. Daniel, 13 S.C.L. (2 McCord) 354 (1823)

SM case ep gh IR, aR a Ree PELE Ta Oe 5, 17, 20

United States v. Alcea Band of Tillamooks, 329

Ee aaa emus 22

United States v. Durham Lumber Co., 363 U.S. 522

NE GS Sar UTS aA oe RE ee 22

United States v. Santa Fe Pacific R. Co., 314 U.S.

I rr i ck Le Ns 2 ek Mek een ced a 24

ieee

vii -

TABLE OF AUTHORITIES - Continued

Page

United States v. Shoshone Tribe, 304 U.S. 111

i | RADIA Re enegtat een Cas n pF rer earn OP HEE g Soe Som 22

Wisconsin v. Hitchcock, 201 U.S. 202 (1906)......... 24

STATUTES

25 U.S.C. §§ 931-938, Catawba Tribe of South Car-

Gree Eeeweees Gr. POG AGE coc 5 ccm vrecesccc neces 2

25 U.S.C. § 1701, Rhode Island Indian Claims Set-

CE Ge Oe occ ba dies Uo hee eee creas 27

25 U.S.C. § 1721, Maine Indian Claims Settlement

ee CO eat ek dc creek cree ea eee 27

25 U.S.C. § 1751, Connecticut Indian Land Claims

II eae Pee eater ea re 27

Be MA Ue Ga oka cae idccorcser ential isin 5

eRe RE New cc hiccaees de eeh seas baen eae eaeaue 5

Me RA RR sa eccve sk so eccdce ess se caer rae ee 5

i ee a Ro os vn wake aes cuceees 12, 16

S.C. Code Ann. § 15-67-210........ 5. 42, 13, 17, 2 oe

tere Ge MA OE rare oon ck ccs accede ncecues ee

ics A A. rd c Sac c ex cuvcccsabehoder 17, 20

LEGISLATIVE MATERIALS

H.R. Rep. No. 95-1453, 95th Cong., 2d Sess.

reprinted in 1978 U.S. Code Cong. & Ad. News

WE oc hla ca eb lac arch tea Un eee rek vase ae en 27

Hearings on H.R. 3274, Hse. Comm. on Interior

and Insular Affairs, 96th Cong., Ist Sess. (1979) .... 28

Vill

TABLE OF AUTHORITIES —- Continued

Page

H.R. Rep. No. 96-1353, 96th Cong., 2d Sess.

reprinted in 1980 U.S. Code Cong. & Ad. News

AAO err ELEY Pere Por reer errr ee eT ee 27

Hearings on H.R. 5494, Hse. Comm. on Interior

and Insular Affairs, 97th Cong., 2d Sess. (1982) .... 28

S. Rep. No. 98-222, 98th Cong., Ist Sess............. 27

OTHER AUTHORITIES

D. Means, Survey of Property Law, 10 S.C.L.Q. 90

Sy rer, eer rr rr rE ee 15

F. Cohen, Handbook of Federal Indian Law, (1982 ed.)

Geers Corre te rer er eer rrr eT ey yor ore rs: 23, 24, 25, 26

Note, Effect of Disability of Landowner With Respect

to the Acquisition of Adverse Rights by Another by

Statute of Limitation, Presumption of a Grant, and

Prescriptive Right in South Carolina, 10 S.C.L.Q.

ee RN CO os livia yeaa er eo en eneas et. 15

STATEMENT OF THE CASE

I. Nature of the Case

In 1760 and 1763, the British Crown entered into

treaties with the Catawba Indian Tribe under which the

Tribe ceded vast portions of its aboriginal territory in

return for the Crown’s guarantee of protection for a 15-

mile-square, 144,000-acre reservation. In 1840 the State of

South Carolina, without the knowledge, consent, or par-

ticipation of the United States, negotiated a “sale” of the

Catawba Reservation, promising it would purchase a new

reservation elsewhere for the Tribe. South Carolina took

possession of the Treaty Reservation but failed to acquire

a new reservation for the Tribe. In 1842, after the Tribe

had wandered homeless for almost three years, the State

bought back a 630-acre tract of the original Reservation as

a “new” reservation for the Tribe. Today, the Tribe con-

tinues to occupy this tract, and the State continues to hold

it in trust for the Tribe’s benefit.

In 1980, after more than a century of unsuccessful

efforts to resolve its claim legislatively and adminis-

tratively, the Tribe filed suit seeking the return of its

Treaty Reservation. The Tribe seeks a declaration that in

1763 it acquired a protected, recognized property right

through its treaties with Great Britain and that since the

adoption of the United States Constitution, its reservation

lands have been protected by federal law. As a result, the

1840 “treaty” between the State and the Tribe is void, and

the subject lands retain to this day their status as Indian

tribal lands.

II. Prior Proceedings and the Issues For

Review

The District Court postponed class certification and

filing of answers in favor of first considering petitioners’

motion for summary judgment based solely on the effects

of the 1959 Catawba Tribe of South Carolina Division of

Assets Act, 25 U.S.C. §§ 931-938 (1982) (“1959 Act”). The

District Court granted summary judgment for petitioners,

finding that the 1959 Act made state statutes of limita-

tions applicable to the claim and that, as a result, the

Tribe’s claim was completely barred. (A. 49). On appeal,

the Court of Appeals reversed the District Court but did

not reach the question whether the South Carolina statute

of limitations barred the claim because, in its view, state

statutes of limitations did not apply to the claim! This

Court granted certiorari to review a single issue — peti-

tioners’ “contention that, even if the Tribe’s claim was

valid before passage and enactment of the [1959] Act, § 5

of the Act made the state statute of limitations applicabie

to the claim.” South Carolina v. Catawba Indian Tribe, 476

U.S. 498, 500 (1986) (A. 57). This Court reversed the Court

of Appeals and held that the 1959 Act did result in the

application of the state statute of iimitations to the Tribe’s

claim. Because the Court of Appeals had not reviewed the

District Court’s ruling that the Tribe’s claim was barred

by the South Carolina statute of limitations, this Court

remanded the case to the Court of Appeals for consider-

ation of the state law issue.

1 The Court of Appeals also held that the 1959 Act did not

extinguish the Tribe’s existence, did not ratify the 1840 Treaty,

and did not terminate the federal trust relationship under the

Nonintercourse Act. Catawba Indian Tribe of South Carolina v.

State of South Carolina, 718 F.2d 1291, 1300 (4th Cir. 1983).

On remand, the parties filed supplemental briefs and

oral argument was held before an en banc court on

December 8, 1986. On August 4, 1987, the Court of

Appeals certified the state law questions to the Supreme

Court of South Carolina. On September 9, 1987, the South

Carolina Supreme Court declined to answer the questions

certified. The Court of Appeals then ordered additional

briefing by the parties on the state law issues, after which

a second oral argument before an en banc court was held

in April, 1988.

On January, 23, 1989, the Court of Appeals held that

because of South Carolina’s “anti-tacking” rule, the state

statute of limitations bars the Tribe’s claim only against

those possessors of land who can demonstrate that they

or a predecessor had possessed the land adversely for 10

years after July 1, 1962 (the effective date of the 1959 Act),

and before October 20, 1980 (the date this suit was filed).

The 10 years must be continuous, 1.e., they cannot be

arrived at by tacking successive periods of adverse pos-

session, except in the case of inheritance.” The state stat-

ute of limitations does not bar the Tribe’s claim against

other persons. Catawba Indian Tribe v. State of South Caro-

lina, 865 F.2d 1444, 1456 (4th Cir. 1989) (A.26).9

2 As explained infra in part B.1., South Carolina has three

limitations periods applicable to land claims: 10, 20 and 40

years. Only the shortest (10 year) statute prohibits tacking of

successive periods of possession.

3 The Court of Appeals also ruled, in response to a juris-

dictional argument raised by the dissent, that the Tribe’s claims

(Continued on following page)

The issue for review is whether the Fourth Circuit

correctly applied the South Carolina statute of limitations

to the Catawba Tribe’s federal law claims.

7%

7

REASONS FOR DENYING THE WRIT

I. The Court Of Appeals Followed This Court’s Man-

date And Correctly Decided The State Law Issue.

A. Petitioners’ Assertion that the Court of Appeals

Disregarded This Court’s Mandate and Failed

to Rely on State Law is Incorrect: Their Claim

that the Court of Appeals was Determined to

Disregard This Court’s Mandate is

Unwarranted.

Petitioners argue that “[t]he linchpin of the [Court of

Appeals’] ultimate holding was its conclusion that poli-

cies embodied in federal law required that Indian title be

considered the same as legal title,” (Pet. 10) (emphasis in

original), and that the decision below was therefore based

on federal law rather than on state law as mandated by

(Continued from previous page)

arise under federal law. In finding federal cause of action

jurisdiction, the Court of Appeals relied on this Court's earlier

holding in this case that the status of the Tribe’s claim

remained unchanged by enactment of the 1959 Act. In South

Carolina v. Catawba Indian Tribe, 476 U.S. 498 (1986), this

Court applied the rule that “federal claims are subject to state

statutes of limitations unless there is a federal statute of limita-

tion or a conflict with federal policy.” Id. at 507 (A.65) (footnote

omitted). This Court’s application of this rule suggests that the

Court did consider whether the Tribe’s claims continue to arise

under federal law, as does the Court’s holding that the status

of the claim remained unchanged after the 1959 Act.

this Court.4 This argument grossly distorts the Court of

Appeals’ decision and is based upon misquotation and

misrepresentation of dictum as holding. Contrary to peti-

tioners’ characterization, the decision below rests exclu-

sively on South Carolina law.

The Court of Appeals’ discussion of the key state law

issue, t.e., whether Indian title is legal title under South

Carolina law, is contained in parts III and IV of the

opinion below. In part III, the Court of Appeals consid-

ered whether “legal title” under S.C. Code Ann.

§ 15-67-210 (Law. Co-op. 1976) is restricted to “record

title.” The court’s rejection of petitioners’ argument is

based on its construction of state statutes and application

of the precedents established in five decisions of the

South Carolina Supreme Court or its predecessors.° While

4 Petitioners apparently do not dispute that the Tribe’s

claims are federal law claims, as they make no mention in their

petition of either the dissent’s argument that the federal courts

have no jurisdiction over the Tribe’s claim because they are no

longer federal claims or the majority’s holding that the Tribe’s

claims are federal law claims. Rather petitioners state that

“{jlurisdiction in the district court was asserted pursuant to 28

U.S.C. §§ 1331, 1337, and 1361.” (Pet. 4).

> The oldest of these South Carolina cases held that the

title established by a reservation by the Crown was superior

under state law to title acquired through a subsequent grant by

the state evidenced by regular deeds and conveyances.

Hawkins’ Devisees v. Arthur, 2 S.C.L. (2 Bay) 195 (1798). In

another case, the Constitutional Court af South Carolina recog-

nized Indian title as a legally enforceable estate under state

law that was superior to title acquired through a subsequent

grant from the state, holding that a state attempt to grant

unextinguished Indian title was void. Thomas v. Daniel, 13

S.C.L. (2 McCord) 354 (1823).

part III contains an introductory recitation of the inci-

dents of Indian title, the holding in part III rests entirely

on the Court of Appeals’ analysis of state law: “we con-

clude that based on its precedents the Supreme Court of

South Carolina would hold that the Tribe’s claim to legal

title .. . is not defeated by lack of recording. . . .” Catawba

Indian Tribe v. State of South Carolina, 865 F.2d at 1449-50

(A. 11).

Likewise, the holding in part IV of the Court of

Appeals’ decision rests entirely on state law. In part IV,

the court addressed petitioners’ argument that because

Indian title cannot be alienated except by act of Congress,

it is equitable title rather than legal title. The court first

considered the nature of Indian title under federal law

and concluded that under federal law Indian title is legal

title. Id. at 1451 (A. 15). It then held without further

discussion of state law, that:

[W]e have no doubt that the Supreme Court of South

Carolina, taking cognizance of the federal precedents

and its own precedents, would hold that section

15-67-210 entitles the tribe to the presumption of

possession.

Id. at 1451-52 (A. 15). The “federal precedents” referred to

are those discussed by the Court of Appeals in part IV of

its discussion and the phrase “its own precedents” refers

to the state law cases discussed by the Court of Appeals

in part III.¢

6 The remainder of the Court of Appeals’ analysis of the

operation of the state statute of limitations, contained in parts

II, V and VI of the opinion, discusses only state law.

Part IV also contains a brief discussion of the Tribe’s

argument that serious Supremacy Clause and Equal Pro-

tection Clause issues would be raised if a state were to

denominate Indian title as equitable when under federal

law it is a legal title, and then rely on that denomination

to defeat the federal policies embodied in the Noninter-

course Act. But this discussion is dictum: the Court of

Appeais did not reach these constitutional issues because

of its confidence that the South Carolina Supreme Court

would follow its precedents and those of federal law.

This dictum, however, is the basis for petitioners’

attempt to manufacture an issue worthy of review by this

Court. Although the Court of Appeals applied the state

statute in a manner that will probably bar the major part

of the Tribe’s claims, petitioners incorrectly assert that the

court “concluded that the statute of limitations should

not apply to the respondent’s claims because of the fed-

eral policy to protect Indian tribes in the rightful occu-

pancy of their lands.”” (Pet. 9). Elsewhere, petitioners

7 Petitioners also suggest that the Court of Appeals erred

in treating the Tribe like an Indian tribe, implying that such

treatment runs afoul of this Court’s mandate. (Pet. 10-11). This

Court’s mandate, however, concerned application of the state

statute of limitations, not whether respondent is to be treated

as a tribe. Indeed, this Court “assume[d] that the respondent is

the successor in interest of the Catawba Indian Tribe of South

Carolina,” South Carolina v. Catawba Indian Tribe, 476 U.S. at

500, n.2 (A.57), and did not review the Court of Appeals’

holding that the 1959 Act did not extinguish the Tribe’s exis-

tence. See note 1, supra.

build on that misstatement to contend that the Court of

Appeals had a “determination to avoid the mandate of

this Court” (Pet. 16) and a “determination not to apply

the state statute of limitation to the Catawbas in precisely

the same fashion as it applies to others.” (Pet. 10)

(emphasis in original).® In order to contrive this “failure

to follow the mandate” issue, the petition not only mis-

represents dictum in the opinion below as a holding, but

inserts petitioners’ own words into quotations of the

Court of Appeals so as to distort and mislead.

The following quote is characterized in the petition

as the “linchpin” holding of the Court of Appeals:

[Application of the statute of limitation to the plain-

tiffs’ claim] conflicts with the policy of the United

8’ This argument is premised upon petitioners’

characterization of Indian title as an estate foreign to those

recognized and protected by state law - so foreign that the

rules that would apply to “any other person or citizen” under

South Carolina law should not apply to the Tribe. Petitioners

apparently do not deny that any other person or citizen would,

under South Carolina law, be permitted to avail themselves of

the state’s “anti-tacking” rule. (Pet. 6, n.5). But under peti-

tioners’ view the Tribe, because it possesses Indian title, should

be denied the benefit of the presumption of possession that

would be accorded to any other citizen of the State. The Tribe’s

Indian title cannot, however, be relegated to a lesser stature

and denied the benefit of a presumption that would be avail-

able to other citizens. This Court held that the 1959 Act’s only

effect on this claim was to impose on the Tribe “an obligation

to proceed to assert its claim in a timely manner as would any

other person or citizen of the State.” South Carolina v. Catawba

Indian Tribe, 476 U.S. at 510 (A. 68). The Court of Appeals

followed this Court’s mandate and applied the state statutes of

limitations to the Tribe “in precisely the same fashion that they

apply to others.” Id. at 506 (A. 63).

States and the Nonintercourse Act. This policy and

the Act protect Indian tribes in their rightful occu-

pancy of their lands. To use the trusteeship created

by the Constitution and implemented by the Act to

defeat a tribe’s right of occupancy would indeed be

ironic and unjust.

(Pet. 10-11) (brackets by petitioners). The words actually

used by the Court of Appeals are quite different:

The argument that the Catawbas have equitable title

precluding the tribe from invoking the presumption

afforded by section 15-67-210 conflicts with the pol-

icy of the United States and the Nonintercourse Act.

This policy and the Act protect Indian tribes in their

rightful occupancy of their lands. To use the trustee-

ship created by the Constitution and implemented by

the Act to defeat a tribe’s right of occupancy would

indeed be ironic and unjust. Serious issues involving

the application of the Supremacy Clause and the

Equal Protection Clause would arise if a state in

violation of the Nonintercourse Act were to dispos-

sess a tribe and then defeat a tribe’s legal claim to

possession by denominating its title as equitable. For-

tunately, we need not address these constitutional

issues because we have no doubt that the Supreme

Court of South Carolina, taking cognizance of the

federal precedents and its own precedents, would

hold that section 15-67-210 entitles the tribe to the

presumption of possession.

Catawba Indian Tribe v. South Carolina, 865 F.2d at 1451-52

(A. 15).

The words that petitioners substitute for those actu-

ally used by the Court of Appeals - “[Application of the

statute of limitations to the plaintiff’s claim]” —- are of

course the very essence of this Court’s mandate in this

case. But that is not what the Court of Appeals said

would conflict with federal Indian policy. Rather, what

10

the court below said would conflict with federal Indian

policy was petitioners’ own “argument that the Catawbas

have equitable title precluding the Tribe from invoking

the presumption of possession afforded by section

15-67-210.”

After reworking the court’s language to suit their

argument, petitioners then erroneously characterize the

“quote” as the opinion’s central holding. (Pet. 11). How-

ever, the portion of the paragraph “quoted” in the peti-

tion does not constitute the court’s holding. It is dictum

contained in the court’s short analysis of constitutional

issues that it does not reach. The actual holding, which

the petition fails to quote, is contained in the last sentence

of the paragraph. There the Court of Appeals makes it

quite clear that its holding is based on state law, 1.e., its

certainty that the South Carolina Supreme Court would

follow the state law precedents discussed in part III of the

opinion together with the consistent federal precedents

discussed in part IV of the opinion.

This Court’s prior ruling in this case was that appli-

cation of the statute of limitations to plaintiff’s claim

would not conflict with the policy of the United States and

the Nonintercourse Act. By substituting their own words

for those of the Court of Appeals and then mischarac-

terizing those words as the court’s linchpin holding, peti-

tioners have represented that the Court of Appeals

applied a standard and reached a result that is contrary to

that mandated by this Court.

But the Court of Appeals did follow this Court's

mandate. Any fair reading of its opinion shows that state

1]

law forms the basis of the court’s holdings. It conscien-

tiously applied the state statute of limitations to the

Tribe’s claim. On remand, the Court of Appeals required

the parties to submit two additional rounds of briefs and

held two additional en banc arguments. It attempted to

certify the state law questions to the South Carolina

Supreme Court. And it was certainly mindful of this

Court’s mandate:

[T]he Supreme Court has definitively decided the

effect that Congress intended the Catawba Act to

have on the tribe’s claim. On this issue its decision is

final. We are not at liberty to attribute to Congress a

different intention in order to question jurisdiction.

The Supreme Court has issued its mandate directing

us to decide the issue pertaining to the state statute

of limitations. See 476 U.S. at 511. Sound principles of

appellate procedure counsel compliance with the

Court’s mandate. See Skillern’s Ex’rs v. May’s Ex’rs,

10 U.S. (6 Cranch) 267 (1810).

Catawba Indian Tribe v. South Carolina, 865 F.2d at 1456 (A.

26).

Petitioner’s effort to manufacture an issue worthy of

this Court’s review is an obvious attempt to circumvent

this Court’s practice of “generally accord[ing] great def-

erence to the interpretation and application of state law

by the courts of appeals.” Pembaur v. Cincinnati, 475 U.S.

469, 484, n.13 (1986); See Propper v. Clark, 337 U.S. 472,

486-487 (1949); Brockett v. Spokane Arcades, Inc., 472 U.S.

491, 500, n.9 (1985).

12

B. The Court of Appeals Correctly Decided the

State Law Issue: While South Carolina’s 10-Year

Statute does not Permit Tacking, the State’s Pol-

icies of Stability and Repose are Satisfied by an

Overall Limitations Scheme that Includes a 20-

Year Presumption of Grant and 40-Year Statute

of Repose Under Both of which Tacking is

Permitted.

1. Because the Tribe’s Claim was Filed Before the

- 20-Year Common Law Presumption of Grant

Became Applicable (18 Years After the Statute of

Limitations Began te Run), Only Those Defen-

dants Who Can Prove 10 Years’ Adverse Posses-

sion Without Tacking May Prevail Against the

Tribe.

Petitioners argue that the Court of Appeals decision

undermines the state policy of fostering stability and

repose through foreclosing untimely claims. This argu-

ment, however, conveniently ignores the existence of the

state’s 20 and 40 year limitations periods under which

tacking is permitted. Examination of the overall state

scheme shows that a claim filed 18 years after the limita-

tions period began to run is not necessarily regarded as

untimely. South Carolina has seen fit, through its “anti-

tacking” rule, to give the true owner of land a greater

measure of protection against adverse claimants.%

9 The applicable South Carolina statutes are S.C. Code

Ann. §§ 15-3-340 and 15-67-210 (Law. Co-op. 1976):

§ 15-3-340. First and second actions by individual for

recovery of land.

No action for the recovery of real property or for the

recovery of the possession thereof shall be maintained

(Continued on following page)

13

In applying South Carolina’s 10-year statute of lim-

itations to the Tribe’s claim, the status of the parties and

the title they asserted as of July 1, 1962, must be consid-

ered. On that date, the state statute of limitations com-

menced to run against the Tribe. South Carolina v. Catawba

Indian Tribe, 476 U.S. at 510 (A. 68). It is assumed that the

Tribe possessed valid Indian title to the land as of that

date, Id. at 500 (A. 57), and that the 1959 Act had no direct

effect on the Tribe’s Indian title. Jd. at 510 (A. 68). There-

fore, for purposes of petitioners’ summary judgment

motion, as of 1962 the Catawba Tribe is assumed to have

had full possessory rights in the subject lands and peti-

tioners or their predecessors are assumed to have been

trespassers.

However, even though petitioners or their prede-

cessors had no legal claim to the land in 1962, they were

in possession; and South Carolina, like other states, per-

mits possessors of land to defeat the landowner’s legal

(Continued from previous page)

unless it appear that the plaintiff, his ancestor, prede-

cessor Or grantor, was scized or possessed of the

premises in question within ten years before the com-

mencement of such action.

§ 15-67-210. Presumption of possession; when occupa-

tion deemed under legal title.

In every action for the recovery of real property or the

possession thereof the person establishing a legal title

to the premises shall be presumed to have been pos-

sessed thereof within the time required by law. The

occupation of such premises by any other person shall

be deemed to have been under and in subordination to

the legal title unless it appear that such premises have

been held and possessed adversely to such legal title

for ten years before the commencement of such action.

14

title by showing actual possession or use adverse to that

of the landowner. Unlike other states, however, South

Carolina does not permit adverse occupants to unite or

tack successive periods of possession in order to establish

title pursuant to a statute of limitations. While unique,

this “anti-tacking” rule applies only to the shortest of

South Carolina’s three adverse possession periods — its

10-year statute of limitations. Tacking successive periods

of possession is permitted under South Carolina’s 20-year

common law presumption of grant and under its 40-year

statute of repose. But because this suit was filed 18 years

after the state statute of limitations became applicable,

the 20-year common law presumption of grant and the

40-year statute of limitations are not at issue.

Under South Carolina’s 10-year statute, once “legal

title’ has been shown, occupation of the premises by

someone else is presumed to be permissive and the legal

title holder is therefore presumed to have had possession

within the ten years. By the explicit terms of the statute,

anyone wishing to defeat legal title must show that their

occupation was not permissive and that it lasted for 10

continuous years, except in the case of intestate succes-

sion.!° The rationale underlying this rule lies in the char-

acterization of the initial possession as tortious from its

10 This rule prohibiting tacking of successive periods of

possession under the 10-year statute was succinctly stated by

South Carolina’s foremost commentator on property law:

(Continued on following page)

15

inception. From this it follows that the trespasser has no

valid legal interest to convey until the 10-year statutory

period has run.!!

South Carolina’s “anti-tacking” statute has been the

subject of frequent judicial construction over the course

of more than a century. A long and unbroken line of

South Carolina Supreme Court decisions demonstrates a

tenacious adherence to the rule that successive periods of

adverse possession may not be tacked to achieve the 10-

year period of limitations contained in S.C. Code Ann.

(Continued from previous page)

The rule in this State, contrary to the view of the

overwhelming majority of jurisdictions, is that even

though there be privity by deed or devise between

successive adverse occupants of land, the possession

of such occupants cannot be tacked to make out title

by adverse possession under the statute of limitations.

Such tacking has been permitted, however, in the case

of a continuation by the heir of the possession of the

ancestor dying intestate.

D. Means, Survey of Property Law, 10 S.C.L.Q. 90 (Fall 1958).

Professor Means also states that if the adverse claimant is

asserting title under the twenty year common law presumption

of grant or the forty-year statute, tacking is permitted.

‘1 The contrasting rationale that permits tacking under the

20-year common law presumption of grant lies in the presump-

tion that the original entry was rightful from its inception. See

Note, Effect of Disability of Landowner With Respect to the

Acquisition of Adverse Rights by Another by Statute of Limita-

tion, Presumption of a Grant, and Prescriptive Right in South

Carolina, 10 S.C.L.Q. 292, 298 (Winter 1958).

16

§ 15-3-340.12 The bar of the 10-year statute of limitations

may not be invoked without proof of continuous adverse

possession for ten years.'3 The South Carolina cases also

make it clear that the 10-year statute of limitations must

be asserted as an affirmative defense by each defendant.

Assertion of the bar contained in S.C. Code Ann.

§ 15-3-340 requires “proof of actual, open, notorious,

hostile, continuous and exclusive possession... .”14

12 E.2., Crotwell v. Whitney, 229 S.C. 213, 220-21, 92 S.E.2d

473, 477 (1956); Adams v. Adams, 220 S.C. 131, 66 S.E.2d 809

(1951); Ellen v. Ellen, 16 S.C. 132 (1881); Love v. Turner, 71 S.C.

322, 51 S.E. 101 (1905); Haithcock v. Haithcock, 123 S.C. 61, 68,

115 S.E. 727, 729 (1923); Epperson v. Stansill, 64 S.C. 485, 42

S.E. 426, 427 (1902); Burnett v. Crawford, 50 S.C. 161, 27 S.E.

645, 647 (1897); Garrett v. Weinberg, 48 S.C. 28, 26 S58. 3, 18

(1896).

13 Adams v. Adams, 220 S.C. 131, 66 S.E.2d 809, 812 (1951),

(“no one can interpose this bar except as may have held for the

period prescribed by the statute.”), quoting Ellen v. Ellen, 16

S.C. 132, 141 (1881); Sutton v. Clark, 59 S.C. 440, 38 S.E. 150, 156

(1901) (“[t]he length of time necessary to bar the plaintiff’s

right of recovery and confer title on the defendant [through

adverse possession] is the same in each case.”); Love v. Turner,

71 S.C. 322, 51 S.E. 101, 104 (1905).

14 Crotwell v. Whitney, 229 S.C. 213, 220-21, 92 S.E.2d 473,

477 (1956); Gregg v. Moore, 226 S.C. 366, 371, 85 S.E.2d 279, 281

(1954); Stokes v. Murray, 102 S.C. 395, 87 S.E. 71, 72 (1915);

Lewis V. Pope, 86 S.C. 285, 68 S.E. 680, 683-84 (1910).

17

2. Predecessors of the South Carolina Supreme

Court Have Recognized Both Indian Title and a

Reservation Granted by the Crown to be Enforce-

able at Law and Superior to Subsequent Grants

from the State: No South Carolina Cases Hold

that “Legal Title” is Restricted to “Record Title.”

Petitioners argue that because the Tribe does not

have a garden-variety “record title,” it does not have

legal title under S.C. Code Ann § 15-67-2109. South Caro-

lina law is clear, however, that both Indian title and the

title created by a reservation by the Crown are enforce-

able titles at law, superior to ordinary grants and paper

title, that will support recovery on their own strength.

The South Carolina Supreme Court’s predecessor has rec-

ognized Indian title as a legally enforceable estate supe-

rior to a subsequent grant from the state. Thomas v.

Daniel, 13 S.C.L. (2 McCord) 354 (1823), held that a grant

of Cherokee Indian lands, where the title had not been

extinguished, as “void.” Id. at 359.!>

15 South Carolina statutory law also recognizes Catawba

Indian title as a legal title. An 1808 statute, S.C. Code Ann.

§ 27-15-10 (Law. Co-op. 1976), provides:

§ 27-15-10. Catawba Indians may lease their lands.

It shall be lawful for the Catawba Indians to grant and

make to any person any lease or leases, for life or lives or

term of years, of any of the lands vested in them by the laws of

this state; provided, that no lease shall exceed the term of

ninety-nine years or three lives in being.

(emphasis added). This statute, taken together with S.C. Code

Ann. § 27-15-30 (Law. Co-op. 1976) which conveyed the State’s

(Continued on following page)

18

In Hawkins’ Devisees v. Arthur, 2 S.C.L. (2 Bay) 195

(1798), the Superior Court of Law considered in detail the

nature of the title created by a reservation of lands by the

Crown. In 1730, King George II by royal proclamation

had offered “bounties of land” to induce settlement in

upper South Carolina. A town was laid out, reserved for

its inhabitants forever, surveyed and finally settled. The

plat of survey was entered in the council books in 1732.

Defendants claimed under the reservation and proclama-

tion of 1730, their evidence of title being the plat of

survey entered in the council books. Plaintiffs claimed the

same land under “regular conveyances” going back to a

grant from the colony in 1770, and objected to introduc-

tion of the plat of survey because it was not a grant, deed

_or conveyance.

In overruling plaintiffs’ objection, the court explained

that where the Crown reserved lands for public purposes

and remained as trustee, there would never be any grant

or deed evidencing title as there would be in the case of

grants to individuals. The court found this lack of deeds

and conveyances deducing a “clear and regular title

down from the original grantee [the State],” id. at 196, to

be no impediment to enforcing the reservation of lands

(Continued from previous page)

reversionary rights in the Tribe’s lands to non-Indian lessees of

the Tribe and acknowledged that the plat of the reservation

was filed with the Secretary of State, demonstrates that South

Carolina recognized the Indians’ title as a legal title under state

law. Moreover, these statutes’ descriptions of the respective

titles of the Indians and the State are perfectly consistent with

the nature of Indian title under federal law, see part II, infra,

where Indian title is recognized at law and the federal or state

governments, or their grantees, hold the reversionary interest,

or underlying fee. r ;

(

19

by the Crown against the holder of a regular paper title

tracing back to a subsequent grant from the State.

Notwithstanding that the crown and the state as its

successor held the reservation in trust for those persons

who had a right of occupancy, the court held:

As to the legal effect of this reservation, there could

be no question about it. It amounted to a covenant in

law, between the crown and the people, for whose

use and benefit it was intended; that the land con-

tained within the boundaries of that plat, should for

ever thereafter be appropriated and disposed of, for

the use and benefit of the inhabitants of the said

town and township, and their heirs for ever, and to

and for no other intent and purpose whatsoever.

2 S.C.L. (2 Bay) at 203.

Hawkins’ Devisees establishes that under South Caro-

lina law the title created by a reservation for a public

purpose by the Crown is binding upon the State as the

Crown’s successor,'® and is superior to and enforceable at

law against an ordinary paper title. Hawkins’ Devisees

further establishes that the title to a reservation would

never be a “record title” within the scope of operation of

the state’s system of land registration. Because “there was

never any grant or deed to produce, the only evidence of

such reservation is a copy of the plat entered in the

council books.” Id. at 198.

16 See Chisolm v. Caines, 67 F. 285, 287 (1894) holding that

“the State of South Carolina succeeded to the obligation as well

as the rights of the crown. She became, upon the Revolution,

the owner of lands not granted by her predecessor. She is

bound by these grants”; citing State v. Pacific Guano Company,

22 S.C. 50, 74 (1884); see also State Ex Rel. McLeod v. Sloan

Const. Co., 284 S.C. 491, 328 S.E.2d 84 (S.C. App. 1985); Moore

v. McClure, 4 S.C.L. 139 (1807).

20

The procedure described in Hawkins’ Devisees for

establishment of a reservation was followed by the

Crown in the case of the Catawba Reservation.'” It was

created by the Crown for a public purpose pursuant to a

royal proclamation. Following establishment of the Reser-

vation, the Crown remained as trustee, and the plat of

survey was filed with the Colony of South Carolina. S.C.

Code Ann. § 27-15-30.

The holdings in Hawkins’ Devisees and Thomas v. Dan-

iel demonstrate clearly that under South Carolina law

Indian title is enforceable at law, with no recording

requirement, and is superior to ordinary deeds and con-

veyances tracing back to a grant from the state.

In addition to the South Carolina cases recognizing

Indian title and reservation title as enforceable at law, the

Court of Appeals relied on more current South Carolina

law recognizing and enforcing titles without requiring

recordation. Haithcock v. Haithcock, 123 S.C. 61, 115 S.E.

727 (1923) recognized that legal title may be established

in any one of four ways, including adverse possession,

and applied the statutory presumption relied on by the

tribe without requiring proof of recordation or registry.

Indeed, as the Court of Appeals points out, “the state has

cited no case holding that proof of recording in the Regis-

try of Mesne Conveyances is necessary in order to estab-

lish legal title within the meaning of section 15-67-210.”

Catawba Indian Tribe v. South Carolina, 865 F.2d at 1449 (A.

11). The court further noted that this lack of precedent

17 See Appeals Court Appendix at 105, 111, 136-37, 130-40;

Complaint {4 12, 13, 14 and Attachment A.

21

was not surprising because “recording becomes material

only when there are double conveyances by the same

person, or where there are subsequent creditors.” Id. (quo-

ting First Carolina Joint Stock Land Bank v. Hudgens, 171

S.C. 18, 21, 171 S.E. 449, 451 (1933)).

The cases cited by petitioners in support of their

notion that legal title can only be record title stand for no

more than the proposition that the record may be and

often is reflective of the legal title. Their argument also

fails to account for title by adverse possession and pas-

sage of title by descent, where legal title is unquestiona-

bly not the same as record title. See Sutton v. Clark 59 S.C.

440, 38 S.E. 150 (1901); Scott v. Woodard, 2 McCord 161

(S.C. 1822); Delleney v. Winnsboro Granite Co., 72 S.C. 39,

51 S.E. 531 (1905).

These state law authorities compel the conclusion

that legal title under South Carolina law is not restricted

to record title and that the South Carolina Supreme Court

would recognize Indian title as legal title under section

15-67-210. Having shown legal title as of the date the

statute of limitations became applicable, petitioners’ pos-

session is presumed to be in subordination to the legal

title. This presumption must be rebutted by showing 10

years’ uninterrupted adverse possession.

The Court of Appeals carefully applied the South

Carolina statute of limitations to the Tribe’s claim. This

Court’s general practice has been to accord such state law

determinations “great deference.” Pembaur v. Cincinnati,

475 U.S. at 484, n.13. Unless the lower court’s determina-

tion is “clearly wrong,” The Tungus v. Skovgaard, 358 U.S.-~

588, 596 (1959); “clearly erroneous,” United States v.

22

Durham Lumber Co., 363 U.S. 522, 527 (1960); or “unrea-

sonable,” Propper v. Clark, 337 U.S. 472, 486-487 (1949),

this Court has upheld lower courts’ interpretations of

state law. Here, the Court of Appeals’ interpretation of

state law is clearly correct. Adoption of petitioners’ views

would require this Court to revise the comprehensive

state law scheme applied by the Court of Appeals and re-

write South Carolina law in a manner that the State

legislature has never seen fit to do, i.e., restrict “legal

title” to “record title.”

li. The Court Of Appeals Correctly Held That Under

Federal Law, Indian Title Is Legal Title.

Petitioners argue that Indian title is not “actual title,”

rather, it is a mere right of occupancy that “does not

constitute a property right at all.” (Pet. 15). Therefore,

“legal title” to the property is possessed by petitioners

because they possess the underlying fee.

Petitioners seriously misapprehend the nature and

status of Indian title. As noted by the Court of Appeals, a

long line of decisions by this Court conclusively estab-

lishes that the title of Indian tribes to land is “as sacred

and securely safeguarded as is fee simple absolute title.”

United States v. Shoshone Tribe, 304 U.S. 111, 117 (1938);

accord Oneida Indian Nation v. County of Oneida, 414 USS.

661, 669 (1974) (Oneida I); Oneida v. Oneida Indian Nation,

470 U.S. 226, 235 (1985) (Oneida II); United States v. Alcea

Band of Tillamooks, 329 U.S. 40, 46 (1946); Mitchel v. United

States, 34 U.S. (9 Pet.) 711, 746 (1835).

This principle applies whether a tribe holds title pur-

suant to sovereign action, or pursuant to aboriginal use

23

and occupancy. Oneida I, 414 U.S. at 669-70; see generally,

F. Cohen, Handbook of Federal Indian Law, 471-99 (1982

ed.). The Catawba Tribe asserts title under a 1763 treaty

with the Crown. In Mitchel v. United States, 34 U.S. (9 Pet.)

711 (1833), this Court established that the right of Indian

tribes derived from treaties with a prior government are

recognized as valid and enforceable under federal law. Id.

at 755-56; accord Johnson v. M’Intosh, 21 U.S. (8 Wheat.)

543, 587-88 (1823) (“The validity of titles given by [prior

governments] has never been questioned in our courts”).

The title asserted by the Tribe in this case is recog-

nized Indian title that is protected by the Fifth Amend-

ment to the United States Constitution. Even as against

the United States, it is a property right that cannot be

extinguished without the payment of just compensa-

tion.'® Shoshone Tribe v. United States, 299 U.S. 476 (1937);

and see generally, F. Cohen, Handbook, supra at 217-18,

485-86.

'8 Petitioners fail to grasp the distinction between recog-

nized Indian title and aboriginal Indian title, basing their mis-

taken notions about the nature of Indian title on selected

quotes from cases discussing the nature of aboriginal rights as

against the United States. See, F. Cohen, Handbook, supra at 488.

This case, of course, concerns the nature of recognized Indian

title as against third parties. As against the United States,

aboriginal property rights are deemed not entitled to compen-

sation on the theory that Congress has not sufficiently

envinced an intent to recognize such rights on a permanent

basis. See, e.g., Tee-Hit-Ton Indians v. United States, 348 U.S.

272, 277-79 (1955) (aboriginal Indian title); Sioux Tribe v.

United States, 316 U.S. 317, 331 (1942) (Executive Order title).

The Catawba Tribe’s title, however is recognized title because

it is derived from a treaty with the Crown which is adopted as

federal law.

24

Moreover, Indian title confers on Indian tribes “the

‘unquestioned right’ . . . to the exclusive possession of

their lands.” Oneida II, 470 U.S. at 235, quoting Cherokee

Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831). Hence,

Indian title, whether aboriginal or recognized, confers the

power to bring possessory actions against third parties

for ejectment and/or damages. See Oneida II, 470 U.S. at

235-236; and see generally, F. Cohen, Handbook, supra at

524, 526-28. In United States v.Santa Fe Pacific R. Co., 314

U.S. 339 (1941), this Court held that a railroad was liable

for trespass damages arising out of the railroad’s illegal

use of tribal land held by aboriginal title.

In contrast, the “fee” underlying Indian title held by

the United States, or by states which comprise the origi-

nal thirteen American colonies, or by grantees of these

governments, does not confer present possessory rights

in lands subject to Indian title. The “fee” holder is thus

not empowered to interfere with the right of Indian tribes

to exclusive possession, unless Congress has clearly indi-

cated an intent to extinguish such tribal rights. See, e.g.,

Wisconsin v. Hitchcock, 201 U.S. 202 (1906); Beecher v.

Wetherby, 95 U.S. 517 (1877); United States v. Santa Fe

Pacific R. Co., 314 U.S. 339, 344-47, 353-54 (1941); Buttz v.

Northern Pacific R.R. Co., 119 U.S. 55, 66 (1886). Hence,

unless Congress has extinguished those tribal rights, con-

veyance of the “fee” underlying Indian title by the fed-

eral government or by states does not convey the tribe’s

exclusive and permanent possessory rights in the claimed

land. United States v. Santa Fe Pacific R. Co., 314 U.S. at

344-45; Oneida Il, 470 U.S. 229-34.

These principles were summarized in Cohen’s Hand-

book of Federal Indian Law:

25

The Supreme Court has held that this underlying fee

simple title to land subject to original Indian title can

be conveyed by the holder of the fee subject to the

Indian right of occupancy. And, as the Court

observed in Johnson, unless Indian title to the land

has been extinguished, any grant of the lands, even

by the United States, is subject to original Indian title

and does not extinguish or interfere with the Indian

right of occupancy. The naked fee title in land subject

to original Indian title gives the holder, whether the

state or a private party, no present possessory inter-

est in the land. Naked fee title merely constitutes a

reversionary interest that becomes possessory only if

Congress clearly and plainly extinguishes the Indian

title.

F. Cohen, Handbook, supra at 489 (footnotes omitted).

Thus, any fee simple estate claimed by the State of

South Carolina and its grantees is predicted only on such

a reversionary interest. The State and its successors will

have no rights in the property until such time as the

rights of the Tribe have been extinguished with the con-

sent of Congress.!?

Petitioners’ argument that Indian title is no title at all

is premised on a misinterpretation of selected discussions

contained in cases relating to the nature of aboriginal

19 Under South Carolina law, such a possibility of reverter

is not an estate, “[flor it has nothing like an estate about it. It is

neither a present nor future right. It is a mere possibility. . . .

Adams v. Chaplin, 10 S.C. (1 Hill) Eq. 265, 277 (1833). Con-

versely, South Carolina law recognizes that “a possession

which shall be deemed valid against the world is tantamount

to the fee.” Sutton v. Clark, 59 S.C. 440, 38 S.E. 150, 156 (1901)

a”,

26

Indian title vis-a-vis the United States. As pointed out in

Cohen’s Handbook, however, the argument “that aborigi-

nal title vests no rights in an Indian Tribe” has never been

accepted. Id. at 488. While Johnson v. M'Intosh held that

aboriginal Indian title may not be conveyed by tribes to

third parties, it did not consider the nature of recognized

Indian title nor did it consider whether aboriginal title

was an enforceable property right against third parties.

As Cohen concludes: “The fact that tribes are entitled to

receive trespass damages for illegal use of their lands by

third persons implies that Indian title represents a perpet-

ual right of use and occupancy (until extinguished) vir-

tualiy equivalent to a fee interest against all but the

United States.” Id. at 488-89.

The Court of Appeals correctly held that with respect

to any defendant other than the United States, Indian title

and fee simple absolute title are virtually indistinguish-

able. Indian title is legal title under federal law.

III. | Review At This Time Would Be Premature: The

Complaint Has Not Been Answered And A Defen-

dant Class Has Not Been Certified.

This appeal is interlocutory; a defendant class has not

been certified and no answers to the complaint have been

filed. While petitioners allege importance of this case to

the affected landowners, no record has been developed of

any economic disruption or hardship caused by this claim

to date. Should the Tribe prevail on liability issues, it is

likely that a federal court would fashion a remedy that

27

would take into account the “impossibility” of reposses-

sion. Catawba Indian Tribe v. State of South Carolina, 740

F.2d 305, 307 (4th Cir. 1984) (Murnaghan, J. concurring);

see Oneida II, 470 U.S. at 253, n. 27.

IV. Petitioners’ Exaggerated Fears Of Hardship Result-

ing From The Lower Court’s Ruling Are

Unfounded Because Congress Will Certainly

Resolve This Claim If It Proceeds To The Merits.

In recent years Congress has been active in resolving

major Indian land claims by implementing consensual

settlement agreements.2° These legislative settlements

have been facilitated by lower federal court rulings that

struck down preliminary defenses and affirmed the legit-

imacy of the tribal claims.?! Indeed, the legislative history

of each Eastern Indian land claim settlement act attrib-

utes the need for the legislation to the perceived cred-

ibility of the tribal claim.?? The recent experience of the

20 See, e.g., Rhode Island Indian Claims Settlement Act of

1978, 25 U.S.C. § 1701 (1982); Maine Indi=n Claims Settlement

Act of 1980, 25 U.S.C. § 1721 (1982); 1983 Connecticut Indian

Land Claims Settlement Act, 25 U.S.C. § 1751.

21 See Narrangansett Tribe of Indians v. So. R.I. Land

Devel. Corp., 418 F.Supp. 798 (D.R.I. 1976); Joint Tribal Council

of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir.

1975); Schaghticoke Tribe of Indians v. Kent School Corp., 423_

F.Supp. 780 (D.Conn. 1976).

22 See H.R. Rep. No. 95-1453, 95th Cong., 2d Sess. 7-9,

reprinted in 1978 U.S. Code Cong. & Ad. News 1948; H.R. Rep.

No. 96-1353, 96th Cong., 2d Sess. 12-13, reprinted in 1980 U.S.

Code Cong. & Ad. News 3786; S. Rep. No. 98-222, 98th Cong.,

Ist Sess. 7-8.

28

Catawba Tribe demonstrates that its claim, like those of

other Eastern Indian tribes, cannot be fairly settled with-

out benefit of judicial interpretation.2* Should the case

now proceed to the merits, settlement efforts will resume

and this claim will be resolved by Congress as have other

Eastern Indian land claims.

.

23 In 1976, in an effort to establish the credibility of the

tribal claim without resorting to litigation, the Tribe renewed

its 1908 request to the United States to initiate litigation on its

behalf to recover the Treaty Reservation. One year later the

Solicitor of the Department of the Interior concluded that the

Tribe could establish a prima facie Nonintercourse Act claim

and formally requested the Department of Justice to initiate

legal action — but only in the event that efforts already under-

way to reach “an amicable, orderly settlement” should fail.

Appendix to Respondent Tribe’s Brief in Opposition to Petition

for Certiorari (1985), Exhibit B, p.3a. Thereafter, two tribal

settlement initiatives, resulting in detailed settlement pro-

posals very similar to those enacted by Congress for other

Eastern Indian tribes, see n. 20, supra, were rejected. Hearings

on H.R. 3274, Hse. Comm. on Interior and Insular Affairs, 96th

Cong., Ist Sess. 30-36, June 12, 1979; Hearings on H.R. 5494,

Hse. Comm. on Interior and Insular Affairs, 97th Cong., 2d

Sess., June 22, 1982 (unpublished).

29

CONCLUSION

The Court of Appeals followed this Court’s mandate

and correctly applied the South Carolina statute of limita-

tions to the Tribe’s claim. The petition should be denied.

Respectfully submitted:

Don B. MILLER

Counsel of Record

NatTivE AMERICAN RiIGHTs FUND

1506 Broadway

Boulder, CO 80302

(303) 447-8760

JAY BENDER

BeL_ser, BAKER, BARWICK,

RAVENEL & BENDER

1730 Main Street

Columbia, SC 29202

(803) 799-9091

Ropert M. JONES

123 Workman Street

Rock Hill, SC 29730

(803) 324-2998

RICHARD STEEL!

113 W. Main Street

Union, SC 29379

(803) 427-5237

Attorneys for Kespondent

Catawba Tribe