Amicus Curiae Brief — South Carolina v. Catawba Tribe, Inc.

Office-Supreime Court, US

-s {¢ FILED

\ , 1; .

No. 84-782 WAY 8 1985

Sivas,

Jn the Supreme Court of the Unitetr Sates —~

OCTOBER TERM, 1984

STATE OF SOUTH CAROLINA, ET AL., PETITIONERS

V.

CATAWBA INDIAN TRIBE OF SOUTH CAROLINA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

Rex E. Lee

Solicitor General

F. Henry Hasicut II

Assistant Attorney General

EDWIN S. KNEEDLER

Assistant to the Solicitor General

JACQUES B. GELIN

ARTHUR E. GOWRAN

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

The United States will address the following questions:

1. Whether the enactment in 1959 of the Catawba Indian

Tribe Division of Assets Act (Catawba Act), 25 U.S.C. 931 et

seq., ratified the 1840 conveyance by the Tribe to the State of

South Carolina of the Tribe’s interest in the 144,000-acre tract at

issue or extinguished the Tribe’s claim that that transaction

violated the restraint on alienation in the Trade and Intercourse

Act.

2. Whether Section 5 of the Catawba Act — which provides

that upon revocation of the Tribe’s constitution, all statutes of

the United States that affect Indians because of their status as

Indians shall be inapplicable to the Tribe and its members and the

laws of the several States shall apply to them in the same manner

as they apply to other persons —made the South Carolina statute

of limitations and law of adverse possession applicable to the

respondent Tribe’s claim when the Tribe’s constitution was

revoked on July 1, 1962.

(1)

Statutory and treaty provisions involved

Statement

Discussion

Conclusion

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Adams v. Adams, 220 S.C. 131,

66 S.E.2d BOD 0.0... ccc cc ccccccccccccces

Affiliated Ute Citizens v. United States,

406 U.S. 128 2... ccc cece cccccccccccccces

Block v. North Dakota,

GP ES PE Bes cviccsccccssccccccccccccce

Bryan v. Itasca County,

GP MINITE Se sesercsccccsccccccccccccce

County of Oneida v. Oneida Indian Nation,

No. 83-1065 (Mar. 4, 1985) .............5.

Dennison v. Topeka Chambers Indu..vial

Development Corp., 527 F. Supp. 611,

aff'd, 724 F.2d 869 ....... cece eeeec cence

Dickson v. Luck Land Co.,

SP IEE Seesesesosccccccccccccccccce

Dillon vy. Antler Land Co.,

341 F. Supp. 734, aff'd, 507 F.2d 940,

cert. denied, 421 U.S.992 ................

Ewert v. Bluejacket, 259 U.S. 129° ...........

(IIT)

IV

Page

Cases—Continued:

Haithcock vy. Haithcock,

i a Sn UF scnccedencektecveenenes 18

Jefferson County Pharmaceutical Ass'n v.

Abboit Laboratories, 460 U.S. 150 ............4.. 15

Joint Tribal Council of the Passamaquoddy

Tribe v. Morton, 528 F.2d 370 .............-. 14,17

EapGRe ©. FUR, BPO UB. GEE cc ccccccsccsccsvesss 10

Menominee Tribe v. United States,

Be We EE nbc adnkneceudadbesindnceaedeusn 9, 13

Nevada v. United States, No. 81-2245

(Jume 24, 1983) 2... ccc ecesccccccccccccccccees 19

Oneida Indian Nation vy. County of Oneida,

Ge ee Skeuicnchatacsneubusasadesaes 10, 11, 14

Schrimpscher v. Stockton, 183 U.S.290 ........... 10

United States v. Ahtanum Irrigation

District, 236 F.2d 321, cert. denied,

LE dé pchbanend eden ckhé c4caheen wens 11

United States v. Dann, No. 83-1476

SP ek SE ch NCR cb eGhad eee Casbabeadeeeasuns 18

United States v. Santa Fe Pacific R.R..,

I ted de ie ieee a ee a ces 7

United States v. Schwarz,

NED, Ree cleo d uve vacbeebeeheanenes 10

United States v. Waller, 243 U.S.

GE bbe ceded ciamneeesebandennesenede 10, 11, 16

United States v. Weber Aircraft Corp.,

No. 82-1616 (Mar. 20, 1984) ..............0 eens 15

Page

Cases—Continued:

Wilson v. Omaha Indian Tribe,

i ie eee bad enerReeten 11, 12

Yankton Sioux Tribe v. United States,

SE ME «cd cccéudécvudasenetistsaedcovenvsees 17

Constitution and statutes:

U.S. Const. Art. VI, Cl. 2 (Supremacy

CHORE cc cccccccdccccesteosccccccccsceceses 9,11

Catawba Indian Tribe Division of Assets Act, ~

25 U.S.C. 931 ef $€q. 2. cccrccccccccccccccccsceces 4

§ 2, 25 U.S.C. 932 20... cece cece cece cece ee eeeee 7

§ 3, 25 U.S.C. 933 .....ccececccccccccces 4, 10, 12

§ 3(b), 25 U.S.C. 933(b) 6. cece eee eee ee ee eens 9

$5, 25 U.S.C. 935 2... cece cece eeeeceenees passim

§ 6, 25 U.S.C. 936 2... cece cece eee eee eee eens u

Indian Claims Limitation Act of 1982,

Pub. L. No. 97-394, Tit. 1, $ 2,

96 Stat. 1976, 28 U.S.C. 2415 2... . cece eee eens 15

Indian Reorganization Act, 25 U.S.C.

AG] Cf SEG. 0c ccc cccccccccccceccccrccseesecceees 3

Trade and Intercourse Act of 1790, ch.33,

eS a Se 4

2S U.S.C. SGAG ccccccccccccccccccccccscccccccces 13

ED oo ocnn0es66ne600d6e chonsereeenesncess 6

, ERT od re duel obddwedsuees 13

CE on ns on ne ectaeednesenebouseneaees 13

EB cc dvicucdscudcbcecsenecoruswasecesveres 6

VI

Page

Constitution and statutes—Continued:

Ps WU SU8606 6b eu case sds ceed entuesnescens 14

SPT CUED GOR AaWCAdd CieNdddenecteneicaescns 13

25 U.S.C. (1976 ed.) 803(a) . 20.2... c cece eee eeeeees 13

Be We GTO eb cvccccccccsteccencices 13

Be Sas GPP ccc evita c cides ceccaseess 13

ED ct ca cabbeveecdcceeenedaqus 13

BP a PEPE cc cvcccccsedseseussncseces 13

Be es CUO osasecescccccencuecnctcees 13

PE cicevcbescecctactsvdsceces 13

| EEA On eet ae nen ever oO 6

SP EE Ke bnnvccécceseconccessuecepasucetes 14

PEE KGdbcetnctedeepacdedeccceeetuceans 17

S.C. Code Ann. (Law. Co-op. 1977):

EET evcbcdcvedecosceuredaceesonses 4, 8,18

i scddldseshueseotbeuee oeneceesetsous 18

Miscellaneous:

D. Brown, The Catawba Inc’‘an

PEE SANE SRURSSGCRAdERWaneodencesonsccucesss 2

PS, EEE ciccccccccescccccecceece 8

Division of Tribal Assets of Catawba

Indian Tribe: Hearings on H.R. 6128

Before the Subcomm. on Indian Affairs

of the House Comm. on Interior and

Insular Affairs, 86th Cong., ist Sess.

DE. Aceh SORSEVeSEECoeenbeaweautheses 3, 4, 8, 13

Vil

Page

Miscellaneous—Continued:

25 Fed. Reg. 6305 (1960) ........ cee cece cence eeeees 4

48 Fed. Reg. 13920 (1983) ........ cece e ee eeeeeeees 15

H.R. Rep. 2503, 82d Cong., 2d Sess.

GIFTED cd wdcdccsessescoceeccsscecccecescnccenes 2

H.R. Rep. 2680, 83d Cong., 2d Sess

GUD evccwsccvccccsececscccccccvcccvccscccone 3

H.R. Rep. 910, 86th Cong., Ist Sess

CETD soccvcvcccoscecesccscceesccccscocceses ye

C. Hudson, The Catawba Nation (1970) ........++++- 2

R. Powell, The Law of Real Property

(IDB) nc ccccccccccccccccccccccccccccccsccccece 18

S. Rep. 863, 86th Cong., Ist Sess.

(IDS) cccccccccccesccccccccccccvcccvccscoccess 7

In the Supreme Court of the Hnited States

OCTOBER TERM, 1984

No. 84-782

STATE OF SOUTH CAROLINA, ET AL., PETITIONERS

Vv.

CATAWBA INDIAN TRIBE OF SOUTH CAROLINA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is filed in response to the Court’s invitation to the

Solicitor General to express the views of the United States.

STATUTORY AND TREATY PROVISIONS INVOLVED

Section 5 of the Catawba Indian Tribe Division of Assets Act,

25 U.S.C. 935, and the pertinent provision of the Treaty of

Augusta of 1763 between Great Britain and various Indian Tribes

are reproduced as an appendix to this brief.

STATEMENT

1. a. The aboriginal home of the Catawba Indian Tribe con-

sisted of parts of what are now the States of North and South

Carolina.' In 1760, the Tribe and the Superintendent of Indian

'The district court granted summary judgment for petitioners on the

basis of undisputed facts and allegations in the respondent Tribe’s

complaint that it assumed to be true (Pet. App. 4a, 6a-7a). The histori-

cal background of the case set forth in the text is drawn primarily from

the district court’s and court of appeals’ recitation of those facts and

allegations (id. at 7a-10a, 41a-47a).

(1)

2

Affairs for Great Britain entered into the 1760 Treaty of Pine

Tree Hill, under which the Tribe relinquished its aboriginal terri-

tory in exchange for a 144,000-acre tract of land (Pet. App.

6a-7a).? In 1763, representatives of the British Crown and the

Catawbas and other Indians in the Southeast entered into the

Treaty of Augusta, under which the Tribe again agreed to settle

on a 144,000-acre tract in South Carolina. App., infra, la. The

United States did not subsequently enter into a treaty with the

Catawbas. Pet. App. 7a, 42a; C.A. App. 134-138, 256, 485, 502,

515; H.R. Rep. 910, 86th Cong., Ist Sess. 3 (1959). See C.

Hudson, The Catawba Nation 50-51 (1970).

By the 1830's, almost all of the 144,000 acres referred to in the

Treaty of Augusta had been leased by the Tribe to non-Indians

pursuant to state statutes (C.A. App. 250). In 1840, the Tribe and

South Carolina entered into the Treaty of Nation Ford (id. at

258). Under that Treaty, the Tribe relinquished the 144,000 acres

to the State, and South Carolina agreed to spend $5,000 to

acquire a new reservation for the Tribe, to pay $2,500 upon the

Tribe’s removal from its former lands, and to make nine annual

payments to the Tribe in the amount of $1,500. In 1842, the State

purchased approximately 630 acres for $2,000 as a new reserva-

tion for the Tribe. This 630-acre tract is still held in trust by South

Carolina for the Tribe. Pet. App. 7a-8a, 43a; C.A. App. 152-156;

C. Hudson, supra, at 64-65, 86-87.

b. In 1943, the Office of Indian Affairs of the Department of

the Interior, the State of South Carolina, and the Tribe entered

into a Memorandum of Understanding (C.A. App. 309-313). In

accordance with this agreement, South Carolina purchased 3,434

acres of land and conveyed it to the United States to be held in

trust for the Tribe. The federal Office of Indian Affairs agreed to

make annual contributions of available sums for the welfare of

the Tribe and to assist the Tribe with educational and medical

?The parties were unable to furnish the court with any documents

containing the terms of the 1760 Treaty of Pine Tree Hill, but the court

assumed for purposes of its decision that the Treaty existed and granted

the Catawbas some interest in the land in issue (Pet. App. 42a; see C.A.

App. 150). See D. Brown, The Catawba Indian 239-245 (1966); H.R.

Rep. 2503, 82d Cong., 2d Sess. 263 (1952).

3

benefits. The Tribe, in turn, agreed to organize and to conduct its

affairs on the basis of the federal government’s recommenda-

tions, and it subsequently did organize under the Indian Reor-

ganization Act, 25 U.S.C. 461 et seg. Pet. App. 8a-9a, 43a;

C.A. App. 488.3

c. In September 1954, in accordance with Congress’s then-

current termination policy, a House Study Subcommittee on

Indian Affairs reported that the Catawba Tribe was among var-

ious groups able to take responsibility for their affairs and there-

fore was ready for termination of federal services. H.R. Rep.

2680, 83d Cong., 2d Sess. 2-3 (1954). The Tribe also desired an

end to federal restrictions on alienation of its lands in order to

facilitate financing for homes, farming, and improvements.

Accordingly, a tribal resolution adopted on January 3, 1959,

recommended the enactment of legislation “to accomplish the

removal of Federal restrictions against the alienation of Catawba

land” and to distribute tribal assets. However, the resolution

expressed the desire that “nothing in this legislation shall affect

the status of any claim against the State of South Carolina by the

Catawba Tribe” (C.A. App. 337).

The final 1943 Memorandum of Understanding omitted a provision

in an earlier draft that would have required the Catawbas “ ‘to execute,

in favor of the State of South Carolina, a release and quitclaim of all

claims and actions, of whatsoever nature against the State of South

Carolina’ ”(C.A. App. 306). The Solicitor of the Interior Department

commented that “{t]his elimination is most desirable in that it avoids a

procedure of doubtful legality which would have consisted in using a

contract under the Johnson-O’Malley Act in order to deprive the Indian

tribe of claims which it might be able to enforce in the courts” (ibid.).

‘Witnesses testifying at the 1959 hearings on the termination bill for

the Catawbas (see page 4, infra) stated that the Catawbas had been

able to merge into the general community and had been able to attain an

economic position comparable to that of non-Indians. Most adult male

Catawbas were employed at the time: 47% were in industry, 20% in

skilled labor, 7% in the armed services, 15% in odd jobs, 5% retired, and

6% on the welfare rolls. See generally Division of Tribal Assets of

Catawba Indian Tribe: Hearings on H.R. 6128 Before the Subcomm.

on Indian Affairs of the House Comm. on Interior and Insular Affairs,

86th Cong., Ist Sess. 8, 22, 26-27, 100-101 (1959) (unpublished) [here-

inafter cited as Hearings}. See also C.A. App. 477-478, 482, 493.

4

After Congress was assured that the Tribe desired termination

(see Hearings, supra note 4, at 9, 18, 84-85; C.A. App. 337,

483-484, 501-507), it enacted the Catawba Indian Tribe Division

of Assets Act (Catawba Act), 25 U.S.C. 931 et seq., in 1959. On

July 1, 1960, the Secretary of the Interior published a notice

stating that a majority of the Tribe’s members agreed to a division

of the tribal assets in accordance with the Catawba Act (25 Fed.

Reg. 6305), and on July 1, 1962, the Secretary revoked the Tribe’s

constitution as required by Section 5 of the Catawba Act, 25

U.S.C. 935 (App., infra, la). Thereafter, the 3,434-acre reserva-

tion that had been acquired for the Tribe pursuant to the 1943

Memorandum of Understanding was distributed among the

members of the Tribe in accordance with Section 3 of the

Catawba Act, 25 U.S.C. 933. Pet. App. 9a-10a, 46a.

2. On October 28, 1980, this suit was filed in the United States

District Court for the District of South Carolina by respondent

Catawba Indian Tribe, a non-profit organization incorporated

under South Carolina law in 1975. The Tribe sought possession

of the 144,000 acres that had been conveyed to the State in 1840

and trespass damages for the period of the Tribe’s dispossession.

Named as defendants, petitioners herein, were the State of South

Carolina and approximately 90 other defendants, who also were

sued as representatives of a class that was alleged to consist of

approximately 27,000 persons who claimed an interest in the

land. The Tribe alleged that the 144,000-acre tract was reserved

to it by the 1760 Treaty of Pine Tree Hill and the Treaty of

Augusta of 1763; that it came within the scope of federal restric-

tions against alienation upon the adoption of the Constitution

and Section 4 of the Trade and Intercourse Act of 1790, ch. 33, |

-. Stat. 138; and that the 1840 conveyance of the Tribe’s interest in

the land to the State was void because it was not approved by the

United States. Pet. App. 10a, 36a.

The district court granted summary judgment for petitioners

ona number of grounds. First, the court held that Section 5 of the

Catawba Act made the 10-year state statute of limitations under

S.C. Code Ann. § 15-3-340 (Law. Co-op. 1977) applicable to

the Tribe’s claim as of July 1, 1962, and that this suit, which was

filed in 1980, is time-barred under that provision (Pet. App.

47a-50a). Second, the court held that the Catawba Act precludes

5

respondent as a matter of law from establishing that it currertly is

an Indian tribe within the meaning of the Trade and Intercourse

Act because the Catawba Act terminated the Tribe’s existence as

a governmental entity (Pet. App. 51a). Third, the court held that

respondent could not establish the continued existence of a trust

relationship between it and the United States because the

Catawba Act terminated that relationship (id. at 52a). Fourth,

the court held that the Catawba Act ratified the 1840 transaction

between the Tribe and the State (id. at 5la-52a).

3. a. A divided panel of the court of appeals reversed and

remanded for further proceedings (Pet. App. 4a-28a). Although

the House and Senate Reports reflected Congress’s awareness of

the 1840 transaction, the court of appeals found no indication

that Congress desired to extinguish tribal claims against South

Carolina arising out of that transaction (id. at 13a-16a). The

court also concluded that the revocation of the Tribe’s constitu-

tion “did not terminate the Tribe” (id. at 17a), which “continued

as a body of Indians, united in a community under one leader-

ship, and inhabiting a particular territory” (id. at 18a).

For like reasons, the court of appeals held that Section 5 of the

Catawba Act did not end the trust relationship that was estab-

lished by the Trade and Intercourse Act with respect to the

144,000-acre tract (Pet. App. 18a-22a). The court believed that

the language in Section 5 which provides that “all statutes of the

United States that affect Indians because of their status as Indi-

ans shall be inapplicable to them” made federal statutes inappli-

cable only to individual indians, not to the Tribe. Insofar as the

Tribe is concerned, the court concluded that the Act terminated

only federal supervision under the 1943 Memorandum of Under-

standing, not the trust relationship arising under the Trade and

Intercourse Act (Pet. App. 21a-22a). The court of appeals also

rejected petitioners’ contention that this suit is subject to the state

statute of limitations by virtue of the provisions of Section 5 of

the Catawba Act that remove the protections of federal law and

make state law applicable to the Catawbas (Pet. App. 22a-23a).

b. Judge Hall dissented (Pet. App. 24a-28a). He was of the

view that the Catawba Act “unquestionably terminated the

Tribe’s legal existence, ended any trust relationship between the

6

Catawbas and the federal government, and made South Carolina

law fully applicable to whatever claim [respondent] may have

had to the Tribe’s ancestral land” (id. at 24a).

c. On rehearing, the en banc court reversed the judgment of

the district court for the reasons given by the panel and remanded

for further proceedings (Pet. App. la-3a). Judge Murnaghan

filed a concurring opinion in which he expressed concern for

innocent landowners and suggested that equitable considerations

might preclude relief against them and instead point to a mone-

tary remedy against South Carolina or the United States (id. at

30a-34a). Judges Widener, Hall and Phillips dissented for the

reasons stated in Judge Hall’s opinion dissenting from the panel’s

decision (id. at 3a).

DISCUSSION

Section 5 of the Catawba Act provides that, after the Tribe’s

constitution is revoked, federal statutes that affect Indians

because of their status as such shall be inapplicable to the Tribe

and its members and state laws shall apply to them in the same

manner as they apply to all other persons in the State. Contrary

to the court of appeals’ conclusion, these provisions of Section 5

plainly made the South Carolina statute of limitations applicable

to the Tribe’s claim as of July 1, 1962, when the Tribe’s constitu-

tion was revoked. Although this case is in an interlocutory pos-

ture and the issues presented directly affect only the claim of the

Catawba Tribe, in our view the court of appeals’ error is suffi-

ciently clear and the impact of that error on the 27,000 potential

defendants is sufficiently immediate that the Court should grant

review.

1. Before addressing the statute of limitations issue, it is

appropriate to consider whether the Catawba Acct itself ratified

the 1840 transaction between the Tribe and South Carolina or

otherwise extinguished the Tribe’s claim to the land covered by

that transaction. We conclude that it did not, and, as to this issue,

we agree with the court of appeals.> Although the Catawba Act

‘Petitioners challenge this holding by the court of appeals only in

passing (Pet. i (Question 3), 21-22). Petitioners cite (Pet. 21 & n.49)

provisions in other termination acts for the proposition that Congress

knew how to preserve federal claims when it desired to do so. See 25

7

itself makes no mention of the 1840 transaction, the district court

relied on the fact that the House Report refers to that transac-

tion® and that Section 2 of the Catawba Act, 25 U.S.C. 932, refers

to the “assets” held in trust for the Tribe by South Carolina,

which assets consist of the 630 acres that were purchased as a

result of that transaction. The district court believed that this

treatment of the assets in the Catawba Act constituted an

“implicit ratification” of the 1840 transaction (Pet. App. 5la-

52a). Especially in light of this Court's recent decision in County

of Oneida v. Oneida Indian Nation (Oneida II), No. 83-1065

(Mar. 4, 1985), the district court’s conclusion was erroneous.

In Onedia II, the Court reiterated the established rule that

“congressional intent to extinguish Indian title must be ‘plain and

unambiguous’ * * * and will not be ‘lightly implied,’ ” in light of

“the strong policy of the United States ‘from the beginning to

respect the Indian right of occupancy’ ” (slip op. 20, quoting

United States v. Santa Fe Pacific R.R., 314 U.S. 339, 345, 346,

354 (1941)). In the Court’s view, the mere reference to the Onei-

das’ 1795 transaction in the 1798 and 1802 Treaties ratified by the

Senate “far from demonstrate{d] a plain and unambiguous intent

to extinguish Indian title,” since there was “no indication that

U.S.C. 677r, 706 and 976. However, each of these provisions preserved

tribal claims that previously had been filed against the United States,

presumably under the Indian Claims Commission Act, which otherwise

might have been thought to be eliminated by Congress's termination of

the trust relationship between the United States and the tribe. The

omission of any similar provision in the Catawba Act presumably is due

to the fact that the Catawbas did not have an action pending against the

United States under the Indian Claims Commission Act. See S. Rep.

863, 86th Cong., Ist Sess. 3 (1959).

*See H.R. Rep. 910, 86th Cong., Ist Sess. 2 (1959):

The Catawba Indians’ relations with the Federal Government

date back only to the 1940’s. Their original reservation was set

aside for them by treaty with South Carolina in 1763. In i840

they agreed to cede this reservation to the State except for a single

square mile of land which is still held in trust for them by the State.

In return the State agreed to furnish certain essential services for

them.

The Senate Report repeats this language verbatim. See S. Rep. 863,

86th Cong., Ist Sess. | (1959).

either the Senate or the President intended by these references to

ratify the 1795 conveyance” (slip op. 20). It follows a fortiori that

no ratification and extinguishment occurred here. There is not

even any mention of the prior transaction in the text of the

Catawba Act, as there was in the text of the treaties ratified by the

Senate in Oneida II. Nor do the passages in the committee reports

suggest an affirmative intent by Congress to ratify the 1840

transaction; they appear to be nothing more than recitations of

historical fact.’

2. Although the Catawba Act did not in itself ratify the 1840

transaction as a matter of federal law, that Act did have the effect

of subjecting the Tribe’s claim to the operation of state law,

including the 10-year statute of limitations (S.C. Code. Ann.

§ 15-3-340 (Law. Co-op. 1977)), beginning on July 1, 1962, when

the Tribe’s constitution was revoked.* In Oneida I/, the Court

?Moreover, the Catawba Act should be construed in light of the

resolution adopted by the Catawbas on January 3, 1959, expressing the

desire that “nothing in this legislation shall affect the status of any claim

against the State of South Carolina by the Catawba Tribe” (C.A. App.

337). This language admittedly might be read to refer only to a claim

against the State alone, under state law, for a breach of the 1840

agreement, resulting from the State’s failure to find another home for

the Catawbas and to make the promised appropriation of funds. How-

ever, in light of the Tribe's prior assertions that the 1840 transaction

violated the Trade and Intercourse Act (C.A. App. 185-187) and the

canon of construction that ambiguous expressions are to be construed

in the Indians’ favor (see, e.g., Oneida I], slip op. 19), the quoted

passage in the resolution might also be read to reflect a desire to

preserve a claim based on federal as well as state law, if that were

necessary to vindicate the Tribe's interests. Because the Catawba Act

was drafted to carry out the intent of the resolution (C.A. App. 338, 502;

105 Cong. Rec. 5162 (1959) (remarks of Rep. Hemphill); Hearings,

supra note 4, at 8-10(remarks of Rep. Hemphill)), this ambiguity in the

resolution further cautions against reading the Catawba Act itself as a

bar to this suit.

*The court of appeals also reversed the district court's holding (Pet.

App. 51a) that the Catawba Act precludes the Tribe as a matter of law

from establishing that it is an “Indian tribe” for purposes of the Trade

and Intercourse Act and therefore precludes it from bringing a suit

under that Act (see Pet. App. 17a-18a). Whatever the proper resolution

of this issue as a general matter, we believe respondent has the capacity

to bring the instant suit. The fact that Congress directed the Secretary to

9

reaffirmed the established rule that under the Supremacy Clause,

State-law time bars do not apply of their own force to Indian

claims to recover land that allegedly was conveyed in violation of

restraints on alienation under federal law. Slip op. 13 n.13. But in

Section 5 of the Catawba Act, Congress rendered that general

rule inapplicable to the Catawbas.

a. Section 5 provides that after revocation of the Tribe’s con-

stitution, “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.” The last clause expressly pro-

vides that state laws shall apply to “them” — i.e., to the “tribe and

its members” referred to in the first clause. The Court has de-

scribed this language as expressing a congressional intent to

subject the Indians affected to the “full sweep” and “fu.i range” of

state laws. Bryan v. Itasca County, 426 U.S. 373, 389-390 (1976).

It is consistent with that interpretation to read the third clause to

trigger the application of the state statute of limitations to any

interests in land claimed by the Tribe and its members.

The second clause just quoted also has the effect of making

state law applicable, because it frees any land claimed by the

Tribe from the protective umbrella of federal law, including the

revoke the Tribe's constitution and provided that the Tribe would retain

no special status under federal law did not mean that respondent, as its

successor-in-interest, could not thereafter hold or seek to recover what-

ever property interests the Tribe owned prior to enactment of the

Catawba Act and revocation of the tribal constitution. Compare

Menominee Tribe vy. United States, 391 U.S. 404, 409-413 & n.10

(1968). As the court of appeals pointed out (Pet. App. 18a), the State of

South Carolina continues to hold 630 acres in trust for the Tribe.

Moreover, the Catawba Act provides that certain of the lands held in

trust by the United States in 1959 could be retained for tribal purposes

($ 3(b), 25 U.S.C. 933(b)), and the Catawba Act expressly does not

affect the rights of the “tribe” under South Carolina law ($ 6, 25 U.S.C.

936).

10

restraint on alienation in the Trade and Intercourse Act.’

Because the Tribe was free after 1962 to sell whatever interest it

had in the land at issue in this case,’® the Tribe likewise was

obligated to assert its title within the time specified by the state

statute of limitations and became subject to losing that title

altogether by operation of state rules of adverse possession. See,

e.g., Schrimpscher v. Stockton, 183 U.S. 290, 295-297 (1902);

United States v. Waller, 243 U.S. 452, 463-464 (1917); Dillon v.

Antler Land Co., 341 F. Supp. 734, 740-741 (D. Mont. 1972),

aff'd, 507 F.2d 940, 942, 944 (9th Cir. 1974), cert. denied, 421 U.S.

992 (1975); Dennison v. Topeka Chambers Industrial Develop-

ment Corp., 527 F. Supp. 611,623 (D. Kan. 1981), aff'd, 724 F.2d

869 (10th Cir. 1984). See also United States v. Schwarz, 460 F.2d

1365, 1371-1372 (7th Cir. 1972).

To be sure, even after 1962, the Tribe’s asserted interest in the

144,000-acre tract continued to derive from federal law, by virtue

of the established policy of the United States after adoption of the

Constitution to respect Indian occupancy. Oneida II, slip op. 7-8;

Oneida Indian Nation v. County of Oneida (Oneida I), 414 U.S.

661, 666-672 (1974). But that fact alone does not immunize an

Indian tribe from state limitations law with respect to a claim to

regain possession — anymore than it does grantees or patentees

from the United States. See Oneida /, 414 U.S. at 676. See, e.z.,

Larkin v. Paugh, 276 U.S. 431, 429 (1928); United States v.

Waller, 243 U.S. at 463-464; Dickson v. Luck Land Co., 242

*The Trade and Intercourse Act clearly is a “statute{] of the United

States that affect[s] Indians because of their status as Indians * * *.” $5,

25 U.S.C. 935. Congress’s lifting of that Act also necessarily rendered

inapplicable the common law restraint on alienation that the Act simply

codified. See Oneida II, slip op. 6-8, 12.

This freedom to alienate of course did not apply to the Tribe's

3,434-acre reservation that had been purchased by South Carolina and

conveyed to the United States to be held in trust for the Tribe. See page

2, supra. Because the United States held legal title to those lands, the

Tribe obviously could not sell them. Accordingly, Section 3 of the

Catawba Act, 25 U.S.C. 933, provided for the Secretary to distribute

those assets to tribal members. However, the United States never held

the remainder of the 144,000-acre tract in trust for the Tribe, and it

therefore would not have been necessary for the Secretary to participate

in the sale of that land.

U.S. 371, 375 (1917). What uniquely immunizes the title of Indian

tribes from state-law rules is the fact that, absent termination of

the special relationship, the continuing tribal right to occupy the

land remains protected by federal law. See Oneida I, 414 U.S. at

677; id. at 684 (Rehnquist, J., concurring); Wilson v. Omaha

Indian Tribe, 442 U.S. 653, 670-671 & n.18 (1979). It follows that

when this federal protection is removed, the Supremacy Clause

no longer inhibits the operation of state-law time bars such as

statutes of limitations and rules of adverse possession. See Ewert

v. Bluejacket, 259 U.S. 129, 137 (1922); United States v. Ahta-

num Irrigation District, 236 F.2d 321, 334 (9th Cir. 1956), cert.

denied, 352 U.S. 988 (1957).

b. The court of appeals did not disagree with the foregoing

principles. But it sought to avoid the result they compel by

reading the pertinent language in Section 5 of the Catawba Act as

applying only to individual members of the Tribe, not to the

Tribe itself. From this premise, the court concluded that in the

particular circumstances of the Catawba Tribe, Congress had not

lifted the federal restraint on alienation of the 144,000-acre tract

or made the state statute of limitations applicable to the Tribe’s

claim to that land. See Pet. App. 19a-22a. We believe this con-

struction of Section 5 is clearly wrong.

The second clause of the pertinent sentence of Section 5,

quoted above (see page 9, supra), provides that after revocation

of the Tribe’s constitution, “all statutes of the United States that

affect Indians because of their status as Indians shall be inappli-

cable to them, * * *.” The court of appeals reasoned that this

clause refers only to “Indians,” not “Indian tribes,” and that

Congress therefore did not render special federal Indian statutes

inapplicable to the Tribe. As petitioners argue, the court of

appeals’ construction “is not even grammatically possible” (Pet.

23; see also Pet. Reply Br. 3-5).

The operative word in the second clause for present purposes is

not “Indians,” as the court of appeals seemed to believe, but

“them.” The word “them” obviously refers to the phrase “the

tribe and its members” in the first clause, which makes the “tribe

and its members” ineligible for special services furnished by the

federal government. The word “Indians” in the second clause,

12

upon which the court of appeals relied, appears only in an adjec-

tival phrase that describes which “statutes of the United States”

shall be inapplicable to the tribe and its members — namely,

those statutes “that affect Indians because of their status as

Indians.” Thus, the second clause simply will not bear the con-

struction given it by the court of appeais.'! The Tribe’s related

contention (Br. in Opp. 14-15) that the third clause makes state

law applicable only to individual members of the Catawba Tribe

is equally untenable, because the third clause makes state laws

applicable to “them,” which again refers back to the “tribe and its

members” mentioned in the first clause.

The court of appeals’ interpretation also is contrary to the

Interior Department’s contemporaneous construction of Section

5 in an explanatory memorandum prepared for distribution to

the members of the Tribe in 1960, prior to the time a majority

gave their consent to the Act’s provisions (C.A. App. 529). In that

transmittal, the Solicitor’s Office explained that “just as the

‘tribe’ no longer will be a legal entity which will be governed by

Federal laws which refer to ‘tribes,’ so the individual members

will no longer be subject to laws which apply only to Indians”

(C.A. App. 531). Thus, the Interior Department construed Sec-

tion 5 to lift federal protections and immunities from the Tribe

itself as well as from individual members of the Tribe. Nor does

the Tribe even now offer any plausible explanation for why

Congress would have intended the anomalous result it urges in a

statute the principal purposes of which were to transfer tribal

property out of federal control (§ 3, 25 U.S.C. 933) and to

terminate the Tribe’s special status under federal law.

''The court of appeals’ reasoning is flawed even if the court were

correct in focusing on the word “Indians” in the second clause,

because, as the court of appeals conceded (Pet. App. 20a), the word

“Indians” has been construed to include an Indian tribe as well as

individual Indians. See Wilson v. Omaha Indian Tribe, 442 U.S. 653,

664-666 (1979). Furthermore, the first clause of Section 5 of the

Catawba Act itself suggests that interpretation. That clause provides

that “the tribe and its members shall not be entitled to any of the special

services performed by the United States for /ndians because of their

status as Indians” (emphasis added). Obviously, by declaring the Tribe

ineligible for federal services performed for “Indians,” Congress meant

to include services performed for indian tribes.

13

c. In addition, this Court has identified the Catawba Act as

one of “aseries of termination statutes” (Affiliated Ute Citizens

v. United States, 406 U.S. 128, 133 n.1 (1972)), and it was de-

scribed by its sponsor as the “usual termination bill, with the

usual provisions.” Hearings, supra note 4, at 89. See also Pet.

Reply Br. 6 nn. 12 & 13. Indeed, the Tribe disavows any argument

that the Catawba Act is not a “termination” act. Br. in Opp. 17

n.15. It therefore is telling that the Tribe is claiming special

protections under federal law and immunities from state law that

are not available under any other termination act.

The Tribe suggests otherwise, arguing (Br. in Opp. 13 & n.9

(emphasis omitted)) that the same result would obtain under

eight other termination acts because Congress provided in those

acts that federal Indian statutes “shall no longer be applicable to

the members of the tribe,” but did not mention the tribe itself.

What the Tribe fails to mention is that in six of these acts there is

other language that explicitly terminated any trust relationship

between the United States and the tribe concerned,'? which

necessarily terminated any “trust” relationship under the Trade

and Intercourse Act; that the seventh act expressly provided for

the withdrawal of federal “supervision” over tribal affairs,"

which necessarily withdrew federal supervision of tribal land

transactions under the Trade and Intercourse Act; and that the

eighth act expressly preserved federal responsibility for the tribe,

and thus has no bearing whatever on this case. Moreover, as the

The language in 25 U.S.C. 564q, applicable to the Klamath Tribe,

is typical. It provides for the Secretary to publish a proclamation

“declaring that the Federal trust relationship to the affairs of the tribe

and its members has terminated.” See also 25 U.S.C. 703 (Western

Oregon Indians); 25 U.S.C. 757(a) (Paiute Indians of Utah); 25 U.S.C.

(1976 ed.) 803(a) (Wyandotte Tribe of Oklahoma); 25 U.S.C. (1976 ed.)

823(a) (Peoria Tribe of Oklahoma); 25 U.S.C. (1976 ed.) 848(a) (Ottawa

Tribe of Oklahoma).

See 25 U.S.C. (1970 ed.) 891, 895 and 896 (Menominee Tribe);

Menominee Tribe v. United States, 391 U.S. 404, 411 (1968). The

provision parallel to Section 5 of the Catawba Act was 25 U.S.C. (1970

ed.) 899.

“See 25 U.S.C. 677u (Ute Indians of Utah). This Court’s decision in

Affiliated Ute Citizens vy. United States, 406 U.S. 128 (1972), arose

under that Act. The Tribe’s reliance (Br. in Opp. 19-20 & n.18) on

Affiliated Ute Citizens is therefore misplaced.

14

Tribe elsewhere concedes (Br. in Opp. 14-15), in all eight of these

other termination acts, Congress expressly provided that state

law shall apply to the tribe as well as its members, which alone

was sufficient to trigger the application of the state statute of

limitations.'5

d. The court of appeals suggested (Pet. App. 17a-18a), how-

ever, that because the legislative history of the Catawba Act

reflects an apparent understanding on the part of Congress that

the United States’ relationship with the Tribe arose exclusively

out of the 1943 Memorandum of.,Understanding (see note 6,

supra) and manifests an intent by Congress to abrogate that

Memorandum, the Catawba Act should be given no broader

effect that might bar the Tribe’s claim. This suggestion is without

merit.

Of course, the Congress that passed the Catawba Act in 1959

did not in this legislation, any more than in any statute, advert

specifically to all the possible consequences when it enacted the

general proposition that henceforward the Catawbas would be

subject to state law like other citizens. And so it may be that

Congress did not consider the potential effect of the Act on a

claim regarding title to 144,000 acres. Indeed, that seems quite

likely, since at the time — well before the decision of the First

Circuit in Joint Tribal Council of the Passamaquoddy Tribe v.

Morton, 528 F.2d 370 (1975), and this Court’s decision in Oneida

I — such “ancient land claims” had considerably less force than

they do now. But it is idle to speculate about what provision the

Catawbas would have sought, what the Interior Department

would have proposed, what South Carolina might have sug-

gested, or what Congress would have enacted if they had focused

on the precise issue presented here, just as it is idle to speculate in

regard to any concrete set of circumstances which came into

'SAs the Tribe also concedes (Br. in Opp. 13, 14-15), in the relevant

provision of the only two remaining tribal termination acts, Congress

expressly provided that state law was to be applicable and federal

Indian statutes were to be inapplicable to the tribe as well as its

members. 25 U.S.C. 726 (Alabama and Coushatta Indians); 25 U.S.C.

980 (Ponca Tribe). Application of the state statute of limitations

obviously was triggered by these acts as well.

15

being as a result of later factual or legal developments. This is

especially so given the lack of ambiguity in the text that Congress

did enact: i.e., that any and all claims which the Catawbas may

have should be subject to state law in the same manner as those of

other citizens.

The fact is that the Catawba Act is not equivocal. The language

of Section 5 of the Catawba Act is as sweeping as that in other

termination acts, which uniformly reflect an intent to abolish all

trust relationships between the federal government and the tribe

concerned, whatever their source. Congress’s focus in this case on

the 1943 Memorandum of Understanding does not preclude the

application of the all-embracing statutory language and congres-

sional purpose to another alleged trust relationship (under the

Trade and Intercourse Act) that was not specifically mentioned

in the legislative history. See, e.g., Jefferson County Pharmaceu-

tical Ass'n v. Abbott Laboratories, 460 U.S. 150, 159 n.18

(1983); United States v. Weber Aircraft Corp., No. 82-1616

(Mar. 20, 1984), slip op. 8, 9-11. Nor has the Tribe pointed to any

indication in the legislative history that Congress affirmatively

intended in 1959 to preserve federal restrictions against aliena-

tion and immunities from state law for the Tribe’s interest in a

tract of land that Congress knew had been conveyed by the Tribe

to the State almost 120 years eurlier and that had not been

occupied by the Tribe since that time. We therefore conciude that

the 10-year state statute of limitations began to run on the Tribe’s

claim as of July 1, 1962."*

'6The Catawbas’ claim was included on the list of pre-1966 damage

claims published by the Secretary pursuant to the Indian Claims Lim-

itation Act of 1982, Pub. L. No. 97-394, Tit. 1, § 2, 96 Stat. 1976, 28

U.S.C. 2415. See 48 Fed. Reg. 13920 (1983). As a result, the Tribe's

claim, even insofar as it seeks trespass damages, is not barred by any

generally applicable federal statute of limitations. See Oneida II, slip

op. 14-16. But that listing does not exempt the Tribe's claim from the

operation of the state statute of limitations that was made applicable

by the Catawba Act. Nor does the listing of a claim for federal limita-

tions purposes reflect a determination by the Department of the Interior

that the claim has merit or is not otherwise barred.

We recognize that in 1977, the Solicitor of the Interior Department

requested the Department of Justice to file an action on behalf of the

16

3. a. Inaddition to being clearly wrong on the central issue of

law involving the application of the state statute of limitations,

the court of appeals’ decision is also of sufficient importance to

warrant review by this Court. We have reached this conclusion

only after consideration of a number of factors on each side of

that question.

First, although the court of appeals’ seeming disregard of the

central purpose of termination acts to eliminate the special status

of the particular tribe under federal law would be of concern if the

court’s view were given wide application, the actual holding

below does not announce broad new legal principles. In Oneida

II, the Court reaffirmed the general rule that state statutes of

limitation do not ordinarily apply to a suit by a tribe to recover

land that was conveyed in violation of federal restrictions. Slip

op. 13 n.13. The narrow legal issue in this case is whether Con-

gress rendered that general rule inappiicable in the particular

circumstances of the Catawba Tribe. Contrary to petitioners’

contention (Pet. 1 1-12), the decision below does not have broader

implications for the interpretation of other termination acts. As

we have explained (see pages 9-14, supra), the court of appeals

did not disagree with the proposition that, where termination act

language such as that in Section 5 of the Catawba Act applies, it

nas the effect of lifting federal restrictions on Indian land and

subjecting Indian claims to state-law defenses. Rather, relying on

what it believed to be the unique text and background of the

Catawba Act, the court construed Section 5 as excluding the

Tribe from its coverage. See Pet. App. 13a-16a, 17a-18a, 20a-23a.

By contrast, the cases upon which petitioners rely (Pet. 13-19,

Catawbas. See letter reproduced at Br. in Opp. App. 3a-7a. However,

the Solicitor’s letter did not address the question whether the Catawba

Act made the Trade and Intercourse Act inapplicable — and the state

statute of limitations applicable — to the Tribe and its land after 1962.

That letter also did not consider whether such a suit should be brought

by the United States on the Tribe’s behalf notwithstanding: (i) Con-

gress’s declaration in Section 5 of the Catawba Act that the Tribe is no

longer entitled to “special services” performed by the United States for

Indians, and (ii) Congress’s termination of any relationship with the

Tribe and the lifting of federal restrictions from its land. Cf. United

States v. Waller, 243 U.S. 452, 463-464 (1917).

17

25-26) addressed the effect of treaties and statutes that, unlike the

Fourth Circuit’s view of the Catawba Act, did lift federal restric-

tions on alienation of Indian land or terminate all aspects of the

trust relationship between the United States and the Indians

concerned.

Second, the court of appeals’ decision is interlocutory in

nature. Although the First Circuit held in Joint Tribal Council of

the Passamaquoddy Tride v. Morton, 528 F.2d 370, 376-379

(1975), that the Trade and Intercourse Act applied even where the

tribe concerned was not formally recognized by the federal

government, the courts below have not yet addressed that issue.

Nor have the courts below considered whether the Tribe should

be deemed to have abandoned the land or its claim thereto (see

U.S. Br. in Oneida II, at 38-39 n.35); whether a federal rule of

laches might bar this suit (Oneida II, slip op. 16-17; id. at 9-17

(Stevens, J., dissenting)); or whether equitable principles might

limit the relief available (Oneida II, slip op. 26 n.27; U.S. Br. in

Oneida II, at 33-40)."’

Third, if the Court were to hold that the state statute of

limitations is applicable, that disposition might not immediately

resolve the underlying controversy concerning the Tribe’s inter-

est in the land. Petitioners seem to have conceded below(C.A. Br.

28-30) that although in their view the Tribe’s suit is barred by the

'’We do not agree with Judge Murnaghan’s suggestion (Pet. App.

30a-34a) that a court might hold the United States liable to the Tribe in

money damages. The Tribe could have sued the United States under the

Indian Claims Commission Act for failing to protect its interests at the

time of (or after) the 1840 transaction (see Oneida II, slip op. 22 n.25),

but it failed to do so. Any present claim for money damages would be

subject to the six-year statute of limitations (28 U.S.C. 2501), and there

may be other limitations on such a suit. In addition, there is no indica-

tion that Congress ever formally recognized the title the Tribe asserts

(see page 2, supra), and it was South Carolina, not the United States,

that acquired the Tribe’s land in 1840 and then disposed of it. By

contrast, in Yankton Sioux Tribe v. United States, 272 U.S. 351 (1926),

upon which Judge Murnaghan relied (Pet. App. 30a-32a), the United

States conveyed the land to third parties, the Tribe had a federally

recognized interest in that land, and Congress passed a special jurisdic-

tional act authorizing the suit.

18

10-year state statute of limitations,'* this does not necessarily

mean that fully unencumbered title is vested in the defendant

landowners. That issue turns on the operation of the South

Carolina law of adverse possession. Compare Block v. North

Dakota, 461 U.S. 273, 291-292 & n.28 (1983). It appears that

under South Carolina law, a person cannot tack onto his own

period of adverse possession the period of possession by a prior

adverse occupant from whom he took by conveyance. See Adams

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

Haithcock, 123 S.C. 61, 115 S.E. 727 (1923), 7 R. Powell, The

Law of Real Property J 1014{2], at 91-63 (1984). Presumably,

some owners of homes and other property in the claims area have

not personally been in possession for the 10 years necessary to

obtain title by adverse possession.

b. Notwithstanding the foregoing considerations, several fac-

tors, especially when considered in combination, persuade us

that the Court should grant certiorari.

First, the Tribe seeks possession of more than 140,000 acres of

land, and it has sued the named petitioners as representatives of a

class allegedly composed of 27,000 defendants who claim an

interest in that land. Thus, although the decision below affects

only the particular claim of the Catawba Tribe, it appears to be of

considerable practical and immediate importance. Compare

United Staies v. Dann, No. 83-1476 (Feb. 20, 1985).

Second, the degree to which the court of appeals erred is an

appropriate consideration in determining whether a particular

decision warrants review. Here, the court of appeals’ holding that

the state statute of limitations isewe does not apply is both clearly

\8Because the court of appeals held that state law is inapplicable to the

Tribe's claim, it had no occasion to consider whether this suit would be

barred as to some or all defendants if the South Carolina statute of

limitations does apply. The district court, however, held that the suit is

barred as to all defendants under the state statute of limitations (Pet.

App. 49a). That would appear to be a reasonable interpretation of S.C.

Code Ann. §$§ 15-3-340 and 15-3-350 (Law. Co-op. 1977); although we

do not here express a final view on that question of state law. If the

Court were to grant certiorari and hold that this suit is subject to state

law defenses, it might choose to remand the case to the court of appeals

to decide this question of state law.

19

erroneous and flatly inconsistent with the congressional judg-

ment that the Catawbas should no longer be entitled to a special

Status under federal law.

Third, we do not believe that the interlocutory posture of the

case should lead the Court to deny review. The purpose of a

statute of limitations is to prevent the assertion of claims after

passage of a suitable period of time and thereby to protect settled

expectations and to prevent the litigation of stale claims. If the

Court were to grant certiorari and reverse on the issue of the

application of the state statute of limitations, the result under the

district court’s interpretation of South Carolina law would be the

dismissal of the suit as against all 27,000 potential defendants.

See no 8, supra. This obviously would substantially further the

policies of the statute of limitations. In analogous circumstances

in Nevada v. United States, No. 81-2245 (June 24, 1983), the

Court granted certiorari to review an interlocutory appellate

decision addressing the application of res judicata, which like-

wise is intended to protect the interest in repose and judicial

economy that is at its “zenith in cases concerning real property”

(slip op. 17-18 n.10).

Fourth, although the equitable considerations that were dis-

cussed by the dissent in Oneida I] but not resolved by the major-

ity have not yet been presented in this case, those considerations

weigh in favor of review here to prevent acknowledged difficul-

ties and unfairness to numerous defendants. Unlike the land

claim involved in Oneida IT, where such equitable considerations

might be utilized to temper what might seem (at least insofar as

innocent private landowners are concerned) like a harsh result

occasioned by application of settled legal principles, this case

presents the circumstance in which the equities of innocent lan-

downers would be protected by the straightforward application

of such legal principles to overturn an altogether erroneous deci-

sion below. Although a holding by this Court that the state

statute of limitations applies might not resolve the underlying

question of title to certain tracts as to which the period of adverse

possession has not run because of South Carolina’s no-tacking

rule, it presumably would, by virtue of affirming the application

20

of state law, substantially settle much of the uncertainty occasi-

oned by this suit and would conclusively determine the title

question as regards at least substantial portions of the land.

Fifth, unlike in Oneida II, where the United States had entered

into treaties with the Oneidas that are still in effect (slip op. 2-3),

in this case there is no continuing federal relationship with the

Tribe. Moreover, although the Court observed in Oneida // that

Congress might well intervene in the controversy over the New

York lands should the occasion arise (slip op. 25), here, an Act

already passed by Congress — the Catawba Act — effectively

disposes of this lawsuit under the district court's construction of

South Carolina law. The Court therefore need not defer to the

possibility of a solution to the controversy by Congress at some

point in the future.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

Rex E. Lee

Solicitor General

F. Henry Hasicut Il

Assistant Attorney General

EpwIn S. KNEEDLER

Assistant to the Solicitor General

JACQUES B. GELIN

ARTHUR E. GOWRAN

Attorneys

May 1985

DOJ-1985-05

APPENDIX

STATUTORY AND TREATY PROVISIONS INVOLVED

Section 5 of the Catawba Indian Tribe Division of Assets Act,

25 U.S.C. 935, provides:

The constitution of the tribe adopted pursuant to sections

461, 462, 463, 464, 465, 466 to 470, 471 to 473, 474, 475, 476

to 478, and 479 of this title 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.

Nothing in this subchapter, however, shall affect the status

of such persons as citizens of the United States.

2. The Treaty of Augusta of 1763 between Great Britain and

various Indian Tribes provided in pertinent part (Pet. App. 7a

n.2; C.A. App. 136-137):

And We the Catawba Head Men and Warriors in Con-

firmation of an Agreement heretofore entered into with the

White People declare that we will remain satisfied with the

Tract of Land of Fifteen Miles square a Survey of which by

our consent and at our request has been already begun and

the respective Governors and Superintendent on their Parts

promise and engage that the aforesaid survey shall be [com-

pleted] and that the Catawbas shall not in any respect be

molested by any of the King’s subjects within the said Lines

but shall be indulged in the usual Manner of hunting

Elsewhere.

(la)