CATAWBA INDIAN TRIBE OF SOUTH CAROUNA 

LAND CLAIMS SETTLEMENT ACT OF 1993 

HEARING 

BEFORE THE 

SUBCOMMITTEE ON 

NATIVE AMERICAN AFFAIRS 

OF THE 

COMMITTEE ON NATURAL RESOURCES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRD CONGRESS 

FIRST SESSION 

ON 

H.R. 2399 

TO PROVIDE FOR THE SETTLEMENT OF LAND CLAIMS OF THE CATAWBA TRIBE OF INDIANS IN THE STATE OF SOUTH CAROLINA AND 

THE RESTORATION OF THE FEDERAL TRUST RELATIONSHIP WITH 

THE TRIBE, AND FOR OTHER PURPOSES 

HEARING HELD IN WASHINGTON, DC 

JULY 2, 1993 

Serial No. 103-34 

Printed for the use of the Committee on Natural Resources 

U.S. GOVERNMENT PRINTING OFFICE 

WASHINGTON : 1993 

For sale by the U.S. Government Printing Office 

Superintendent of Documents, Congressional Sales Office, Washington, DC 20402 

ISBN 0-16-041795-3 
COMMITTEE ON NATURAL RESOURCES 

GEORGE MILLER, California, Chairman 

PHILIP R. SHARP, Indiana 

EDWARD J. MARKEY, Maaaachull8tta 

AUSTIN J. MURPHY, PeDDllylvania 

NICK JOE RAHALL II, West Virginia 

BRUCE F. VENTO, Minnesota 

PAT WILLIAMS, Montana 

RON DELUGO, Vu-gin Ialanda 

SAM GEJDENSON, Connecticut 

RICHARDH.LEHMAN,California 

BILL RICHARDSON, New Mexico 

PETER A. DEFAZIO, Oregon 

ENI F.H. FALEOMAVAEGA, 

American Samoa 

TIM JOHNSON, South Dakota 

LARRY LAROCCO, Idaho 

NEIL ABERCROMBIE, Hawaii 

CALVIN M. DOOLEY, Californi11 

CARLOS A. ROMERO-BARCELO, 

Puerto Rico 

KARAN ENGLISH, Arizona 

KAREN SHEPHERD, Utah 

NATHAN DEAL, Georgia 

MAURICE D. HINCHEY, New York 

ROBERT A. UNDERWOOD, Guam 

SAM FARR, California 

LANE EVANS, Illinoia 

PATSY T. MINK, Hawaii 

THOMAS J. BARLOW III, Kentucky 

THOMAS M. BARRETT, Wiacolllin 

DON YOUNG, Aluka, 

Ranleing Republican Member 

JAMES V. HANSEN, Utah 

BARBARA F. VUCANOVICH, Nevada 

ELTON GALLEGLY, California 

ROBERT F. SMITH, Oregon 

CRAIG THOMAS, Wyoming 

JOHN J. DUNCAN, JR., TenneBSee 

JOEL HEFLEY, Colorado 

JOHN T. DOOLITTLE, California 

WAYNE ALLARD, Colorado 

RICHARD H. BAKER, Louiaiana 

KEN CALVERT, California 

SCOTT MciNNIS, Colorado 

RICHARD W. POMBO, California 

JAY DICKEY, ArkahaBI 

JOHN LAWRENCE, Staff Director 

RICHARD MELTZER, General Counsel 

DANIEL VAL K!sH, Republican Staff Director 

SUBCOMMITI'EE ON NATIVE AMERICAN AFFAIRS 

BILL RICHARDSON, New Mezico, Chairman 

PAT WILLIAMS, Montana CRAIG THOMAS, Wyoming, 

SAM GEJDENSON, Connecticut Ranlei11{l Republican Member 

ENI F.H. FALEOMAVAEGA, DON YOUNG, Aluka 

American Samoa RICHARD H. BAKER, Louiaiana 

TIM JOHNSON, South Dakota KEN CALVERT, California 

NEIL ABERCROMBIE, Hawaii 

KARAN ENGLISH, Arizona 

TADD JOHNSON, Staff Director 

STEVEN J.W. IIEELEY, Counsel 

MARIE HOWARD, Pro(u1ional Staff Member 

JUNE LoRENZO, Profuaional Staff Member 

BAiulARA RoBLES, Cleric 

RICHARD HOUGHTON, Republican Counsel on Nati!Je American Affairs 

(Ul 
CONTENTS 

Hearing held: July 2, 1993 ..................................................................................... . H.R. 2399: 

1. Text of the bill ............................................................................................ . 2. Background ................................................................................................. . 3. Section-by-section analysis ........................................................................ . Member statements: 

Hon. Bill Richardson ....................................................................................... . Witness statements: 

Hon. John M. Spratt, Jr., a Representative in Congress from the State 

of South Carolina ......................................................................................... . Panel consisting of: 

Hon. Gilbert B. Blue, Chief, Catawba Indian Tribe, Rock Hill, SC, 

accompanied hi Don Miller, Esq., Native American Rights Fund ... . Hon. Robert W. Hayes, Jr., State Senator, South Carolina .................. . Mark Elam, senior counsel to Hon. Carroll A. Campbell, Governor, 

State of South Carolina, accompanied by Kenneth Woodington, 

senior assistant attorney general, South Carolina, and James L. 

Material s!t':fl:/:~~ ~~·~~~d ~~~rr ·························································· 

Hon. John M. Spratt, Jr.: 1. Prepared statement of Hon. Butler Derrick, a Representative 

in Congress from the State of South Carolina ................................ . 2. Memorandum of Cooperation and Agreement in Principal ........... . 3. Letter, including enclosures, from Thomas J. Blumer, Ph.D., 

4. ~~ar!a~~~~;:t .::::::: ::::: ::: ::::::::::::::::::::::::::: :::::::::::::: ::: ::: ::::::::::: 5. Letter to Hon. Cecil D. Andrus regarding "Ancient Eastern Indian Claims" from the Office of the Attorney General dated June 

30, 1978 ················· ···························································· ·················· 6. Letter from the Native American Rights Fund dated June 11, 

1993 ····························································································· ········ 7. DOl news release dated September 29, 1992 ................................. . 8. Synopsis of Catawba bill ................................................................... . 9. Letter to Hon. James W. Moorman, Actin~ Assistant Attorney General, Land and Natural Resources Div18ioo, Department of 

Justice ................................................................................................ . 10. Catawba settlement monetary contributions .................................. . 11 .. Catawba payments ............................................................................ . Hon. Gllbert B. Blue: Fact sheet on H.R. 2399 ............................................. . Mark Elam: Prepared statement of Governor Campbell .............................. . 

APPENDIX 

July 2, 1993 

Additional material submitted for the hearing record from: 

Pace 

1 

2 

81 

83 

1 

89 

211 

226 

231 

90 

94 

140 

154 

191 

193 

195 

197 

200 

204 

205 

225 

232 

National Congress of American Indians: Prepared statement of 

Gaiashkibos, president .. ... .. . . .. .... .. ... . . .. .. .. .. . . . . . .. .... .. .. ... .... ...... .. . . . . . .. . . . . .. . . .. . .. . 253 

Thomas J. Blumer, Ph.D., historian, Catawba restoration of justice 

project: Comments for the record and appendices ..... .. . . .... .. .. . . . . . .. .. . . .. . . .. . .. 255 

Hon. Gilbert B. Blue!.. Chief, Catawba Nation, Rock Hill, SC: 

1. Letter from .l!i. Fred Sanders, Assistant Chief, dated June 30, 

1993, and prepared statement on H.R. 2399 . .... ... ...... .. . . ... .. . . .. .... .... 300 

. (Ill) 
IV 

Additional material submitted for the hearing record from-Continued 

Hon. Gilbert B. Blue, Chief, Catawba Nation, Rock Hill, SC--Continued 

2. Exhibits submitted with prepared statement: 

Exhibit A-The National Congress of American Indians ResoluEJ:ibi:n~\i~~H! ~~ 3274;"&r~~ .. ih~ .. ·c~~~t~ .. ~~ Interior and Insular Affairs, House of Representatives, "To 

Settle the Nonintercourse Claims of the Catawba Indian Tribe 

of South Carolina," 96th Cong., 1st Sess. at 135-182 (1979) 

[Editor's note.-May be found in the archival file.) 

Exhibit C-Catawba Tribe of South Carolina v. United States 

(Tribe's Petition for a Write of Certiorari, dated April 6, 1993) . Exhibit D-Tribe's Opening Brief in State of South Carolina v. Catawba Indian Tribe, No. 84-782 Before the United States 

EJ:il:i:mE-Cfn':f:x··· ~f'·c~~;b~· .. ifut;;ri~i ... ~~~~b;; ···N~ii~~ American Rights Fund (February, 1990) .................................... .. Exhibit F -BIA Documents Relating to the Tribe's 1905 and 

1908 Requests ................................................................................ . Exhibit G-=-1911 Report of BIA Special Indian Agent Charles 

Davis ............................................................................................... . Exhibit H-1937 Memorandum to the Commissioner of Indian 

Affairs from D'Arcy McNickle ...................................................... .. Exhibit I -Questions of the Catawbas' Identity and Organization 

As A Tribe and Right to Adopt An IRA Constitution, 

Mem.Sol.lnt., April 11, 1944, reprinted in II Opinions of the 

Solicitor of the Department of the Interior Relating to Indian 

Affairs, 1917-1974, 1261 (Gov't Printing Office, n.d.) ............... .. Exhibit J-Solicitor's 1977 Litigation Request re: Catawba Land 

Claim ................................................................ .............................. . Exhibit K-Solicitor's 1977 Litigation Report re: Catawba Land 

Claim .......................................................................................... .... . Exhibit L-NARF Legal Review, Vol. 18, No. 1, Spring 1993 ....... . Exhibit M-Act of August, 11, 1992, 106 Stat. 869 and LegislaEJJbi:nN~~p~g:··~r··~~··cllpp~p .. ('i992:: i993' ''(Edit;;;.~ note.-Mar be found in the archival fife.) 

Exhibit 0-Agreement in PrinciJ;lal [Editor's note.-See page 97.) 

Exhibit P-South Carolina Act lDlplementing Settlement Agreement (June 14, 1993) ..................................................................... . Exhibit Q-Sample summons, complaint and lis pendens for 

service by mail ............................................................................... . 

Pace 

308 

312 

448 

623 

755 

794 

815 

829 

831 

835 

866 

882 

895 

932 
CATAWBA INDIAN TRIBE OF SOUTH CAROLINA LAND CLAIMS SETI'LEMENT ACT OF 

1993 

FRIDAY, JULY 2, 1993 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON NATURAL RESOURCES, 

SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS, 

Washington, DC. 

The subcommittee met, Pursuant to call, at 1:30 p.m., in room 

1324, Longworth House Office Building, Hon. Bill Richardson 

(chairman of the subcommittee) presiding. 

STATEMENT OF BON. BILL RICHARDSON 

Mr. RICHARDSON. The Committee will come to order. 

This afternoon we will be taking testimony on H.R. 2399, the Catawba Indian Tribe of South Carolina Land Claims Settlement Act 

of 1993. Th~ bill is sponsored b:y my good .friend and fellow co-chief 

Deputy Whip, Mr. Butler Dernck. The bill would restore the Catawba Tribe as a federally recognized Indian tribe and settle their 

150-year-old land claim. The Catawba Tribe is one of the last tribes from the termination 

era of the 1950s that has not had its firmly recognized status restored by the United States. The policy of termination was a dismal 

failure and the Congress has expressly repudiated this policy. The Catawba Tribe has land claims which stem from the treaties 

of 1760, 1763, and 1840 as well as aboriginal land claims to the 

lands in the State of South Carolina. This bill would extinguish 

those claims. The details of this settlement will be the main focus 

of this hearing. 

The Committee notes there are several significant issues raised 

by this legislation. The bill provides for the waiver of many of the 

sovereign rights of the Catawba Tribe. In this settlement, the tribe 

has ceded substantial civil regulatory and adjudicatory jurisdiction 

as well as criminal jurisdiction to the State of South Carolina. The 

Committee needs to know why the tribe surrendered these rights 

for this settlement. 

It should be noted the Department of the Interior was invited to 

this hearing but, given time limitations and the complexity of the 

bill, the Department asked to submit written comments at a later 

date. 

Without objection, I ask that the bill, background and section by 

section analysis be made part of the record. 

[The bill, H.R. 2399, and accompanying materials follow:] 

(1) 
103o CONGRESS 

1ST SESSION 

2 

H.R.2399 

To provide for the settlement of land claims of the Catawba Tribe of Indians· 

in the State of South Carolina and the restoration of the Federal trust 

relationship \lith the Tribe, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JUKE 10, 1993 

Mr. DERRICK introduced the following bill; which was referred jointly to the 

Committees on Natural Resources and Ways and Means 

A BILL 

To provide for the settlement of land claims of the Catawba 

Tribe of Indians in the State of South Carolina and 

the restoration of the Federal trust relationship with 

the Tribe, and for other purposes. 

Be it enacted by the Senate and House of Representa2 fives of the United States of America in Congress assembled, 

3 SEc:I'ION 1. SHORT TITLE. 

4 This Act may be cited as the "Catawba Indian Tribe 

5 of South Carolina Land Claims Settlement Act of 1993". 
3 

2 

1 SEC. 2. DECLARATION OF POLICY, CONGRESSIONAL FIND2 INGS AND PURPOSE. 

3 (a) FINDINGS.-The Congress declares and finds 

4 that: 

5 (1) It is the policy of the United States to pro6 mote tribal self-determination and economic self-suf7 ficiency and to support the resolution of disputes 

8 over historical claims through settlements mutually 

9 agreed to by Indian and non-Indian parties. 

10 (2) There is pending before the United States 

11 District Court for the District of South Carolina a 

12 lawsuit disputing ownership of approximately 

13 140,000 acres of land in the State of South Carolina 

14 and other rights of the Catawba Indian Tribe under 

15 Federallaw. 

16 (3) The Catawba Indian Tribe has also initiated 

17 a related lawsuit against the United States in the 

18 United States Court of Federal Claims seeking mon19 etary damages. 

20 (4) Some of the significant historical events 

21 which have led to the present situation include: 

22 (A) In treaties with the Crown in 1760 

23 and 1763, the Tribe ceded vast portions of its 

24 aboriginal territory in the present States of 

25 North and South Carolina in return for guaran-
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

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4 

3 

tees of being quietly settled on a 144,000-acre 

reservation. 

(B) The Tribe's district court suit contended that in 1840 the Tribe and the State entered into an agreement without Federal approval or participation whereby the Tribe ceded 

its treaty reservation to the State, thereby giving rise to the Tribe's claim that it was dispossessed of its lands in violation of Federal law. 

(C) In 1943, the United States entered 

into an agreement with the Tribe and the State 

to provide services to the Tribe and its members. The State purchased 3,434 acres of land 

and conveyed it to the Secretary in trust for the 

Tribe and the Tribe organized under the Indian 

Reorganization Act. 

(D) In 1959, Congress enacted the Catawba Tribe of South Carolioa Division of Assets Act, 25 U.S.C. 931-9~8. Federal agents 

i 

assured the Tribe that if tfte Tribe would release the Government from /its obligation under 

the 1943 agreement and atree to Federal legislation terminating the Federal trust relationship and liquidating the 1943 reservation, the 
5 

4 

status of the Tribe's land claim would not be 

2 jeopardized by termination. 

3 (E) In 1980, the Tribe initiated Federal 

4 court litigation to regain possession of its treaty 

5 lands and in 1986, the United States Supreme 

6 Court ruled in South Carolina against Catawba 

7 Indian Tribe that the 1959 Act resulted in the 

8 application of State statutes of limitations to 

9 the Tribe's land claim. Two subsequent deci10 sions of the United States Court of Appeals for 

11 the Fourth Circuit have held that some portion 

12 of the Tribe's claim is bared by State statutes 

13 of limitations and that some portion is not 

14 barred. 

15 (5) The pendency of these lawsuits has led to 

16 substantial economic and social hardship for a large 

17 number of landowners, citizens and communities in 

18 the State of South Carolina, including the Catawba 

19 Indian Tribe. Congress recognizes that if these 

20 claims are not resolved, further litigation against 

21 tens of thousands of landowners would be likely; 

22 that any final resolution of pending disputes through 

23 a process of litigation would take many years and 

24 entail great expenses to all parties; continue eco25 nomically and socially damaging controversies; pro-
6 

5 

long uncertainty as to the ownership of property; 

2 and seriously impair long-term economic planning 

3 and development for all parties. 

4 (6) The 102d Congress has enacted legislation 

5 suspending until October 1, 1993, the running of 

6 any unexpired statute of limitation applicable to the 

7 Tribe's land claim in order to provide additional 

8 time to negotiate settlement of these claims. 

9 (7) It is recognized that both Indian and non10 Indian parties enter into this settlement to resolve 

ll the disputes raised in these lawsuits and to derive 

12 certain benefits. The parties' Settlement Agreement 

13 constitutes a good faith effort to resolve these law14 suits and other claims and requires implementing 

15 legislation by the Congress of the United States, the 

16 General Assembly of the State of South Carolina, 

17 and the governing bodies of the South Carolina 

18 counties of York and Lancaster. 

19 (8) To advance the goals of the Federal policy 

20 of Indian self-determination and restoration of ter21 minated Indian tribes, and in recognition of the 

22 United States obligation to the Tribe and the Fed23 eral policy of settling historical Indian claims 

24 through comprehensive settlement agreements, it is 

25 appropriate that the United State participate in the 
7 

6 

funding and implementation of the Settlement 

2 Agreement. 

3 (b) PuRPOSE.-It is the purpose of this Act4 ( 1) to approve, ratify, and confirm the SettleS ment Agreement entered into by the non-Indian set6 tlement parties and the Tribe; 

7 (2) to authorize and direct the Secretary to im8 plement the terms of such Settlement Agreement; 

9 (3) to authorize the actions and appropriations 

I 0 necessary to implement the provisions of the Settle11 ment Agreement and this Act; 

12 ( 4) to remove the cloud on titles in the State 

13 of South Carolina resulting from the Tribe's land 

14 claim; and 

15 (5) to restore the trust relationship between the 

16 Tribe and the United States. 

17 SEC. 3. DEFINITIONS. 

18 For purposes of this Act: 

19 (1) The term "Tribe" means the Catawba In20 dian Tribe of South Carolina as constituted in ab21 original times, which was party to the Treaty of 

22 Pine Tree Hill in 1760 as confirmed by the Treaty 

23 of Augusta in 1763, which was party also to the 

24 Treaty of Nation Ford in 1840, and which was the 

25 subject of the Termination Act, and all predecessors 
8 

7 

l and successors in interest, including the Catawba ln2 dian Tribe of South Carolina, Inc. 

3 (2) The term "claim" or "claims" means any 

4 claim which was asserted by the Tribe in either Suit, 

5 and any other claim which could have been asserted 

6 by the Tribe or any Catawba Indian of a right, title 

7 or interest in property, to trespass or property dam8 ages, or of hunting, fishing or other rights to natu9 ral resources, if such claim is based upon aboriginal 

10 title, recognized title, or title by grant, patent, or 

11 treaty including the Treaty of Pine Tree Hill of 

12 1760, the Treaty of Augusta of 1763, or the Treaty 

13 of Nation Ford of 1840. 

14 (3) The term "Executive Committee" means 

15 the body of the Tribe composed of the Tribe's execu16 tive officers as selected by the Tribe in accordance 

17 with its constitution. 

18 ( 4) The term "Existing Reservation" means 

19 that tract of approximately 630 acres conveyed to 

20 the State in trust for the Tribe by J.M. Doby on 

21 December 24, 1842, by deed recorded in York Coun22 ty Deed Book N, pp. 340-341. 

23 (5) The term "General Council" means the 

24 membership of the Tribe convened as the Tribe's 
9 

8 

1 governing body for the purpose of conducting tribal 

2 business pursuant to the Tribe's constitution. 

3 (6) The terms "internal matters" or "internal 

4 tribal matters" mean matters which include (but are 

5 not limited to) the relationship between the Tribe 

6 and one or more of its Membe~, the conduct of trib7 al government over Members, and the Tribe's exer8 cise of the power to exclude individuals from the 

9 Reservation. 

10 (7) The term "Member" means individuals who 

11 are members of the Tribe as determined in accord12 ance ·with this Act. 

13 (8) The term "Reservation" or "Expanded Res14 ervation" means the Existing Reservation and the 

15 lands added to the Existing Reservation in accord16 ance with section 14 of this Act, which are to be 

17 held in trust by the Secretary in accordance with 

18 this Act. 

19 (9) The term "Secretary" means the Secretary 

20 of the Interior. 

21 (10) The term "Settlement Agreement" means 

22 the document entitled "Agreement in Principle " be23 tween the Tribe and the State of South Carolina and 

24 attached to the copy of the State implementing legis-
10 

9 

1 lation and filed with the Secretary of State of the 

2 State of South Carolina. 

3 (11) The tenn "State" means, except for sec4 tions 6(a) through (f) and subsections (d)(2) and (h) 

5 of section 18 of this Act, the State of South Caro6 lina. 

7 (12) The tenn "Suit" or "Suits" means Ca8 tawba Indian Tribe of South Carolina v. State of 

9 South Carolina, et al., docketed as Civil Action No. 

10 80-2050 and filed in the United States District 

11 Court for the District of South Carolina; and Ca12 tawba Indian Tribe of South Carolina v. The United 

l3 States of America, docketed as Civil Action No. 90-

14 553L and filed in the United States Court of Fed15 era! Claims. 

16 (13) The term "Tennination Act" means the 

17 Act entitled "An Act to provide for the division of 

18 the tribal assets of the Catawba Indian Tribe of 

19 South Carolina among the members of the tribe and 

20 for other purposes", approved September 21, 1959 

21 (73 Stat. 592; 25 U.S.C. 931-938). 

22 (14) The term "transfer" includes (but is not 

23 limited to) any voluntary or involuntary sale, grant, 

24 lease, allotment, partition, or other conveyance; any 

25 transaction the purpose of which was to effect a 
11 

10 

1 sale, grant, lease, allotment, partition, or convey2 ance; and any act, event or circumstance that re3 suited in a change in title to, possession of, domin4 ion over, or control of land, water, minerals, timber, 

5 or other natural resources. 

6 (15) The term "Trust Funds" means the trust 

7 funds established by section 13 of this Act. 

8 SEC. 4. RESTORATION OF FEDERAL TRUST RELATIONSHIP. 

9 (a) RESTORATION OF THE FEDERAL TRUST RELA10 TIONSHIP.-On the effective date of this Act, the trust re11 lationship between the Tribe and the United States shall 

12 be restored. 

13 (b) ELIGIBILITY FOR FEDERAL BENEFITS AND 

14 SERVICES.-Notwithstanding any other provision of law, 

15 on the same date as the trust relationship is restored, the 

16 Tribe and the Members shall be eligible for all benefits 

17 and services furnished to federally recognized Indian 

18 tribes and their members because of their status as Indi19 ans. On the effective date of this Act, the Secretary shall 

20 enter the Tribe on the list of federally recognized bands 

21 and tribes maintained by the Department of the Interior; 

22 and its members shall be entitled to special services, edu23 cational benefits, medical care, and welfare assistance pro24 vided by the United States to Indians because of their sta25 tus as Indians, and the Tribe shall be entitled to the spe-
12 

11 

1 cial services performed by the United States for tribes be2 cause of their status as Indian tribes. 

3 (c) HEALTH CARDS.-In addition to any other enti4 tlement or eligibility the Tribe or Members may have be5 cause of their status as Indians, the Indian Health Service 

6 shall issue health cards for use by any Member in a health 

7 care facility of their choosing approved by the Indian 

8 Health Service as to quality of care. Such health card shall 

9 entitle the Member to the same level of care as is available 

10 at any Indian health care facility or through contract 

11 health care for Indians. 

12 (d) REPEAL OF TERMINATION ACT.-The Termi13 nation Act is repealed, and the provisions of the Termi14 nation Act shall not apply to the Tribe or Members after 

15 the effective date of this Act. 

16 (e) EFFECT ON PROPERTY RIGHTS AND OTHER OB17 LIGATIONS.-Except as otherwise specifically provided in 

18 this Act, this Act shall not affect any property right or 

19 obligation or any contractual right or obligation in exist20 ence before the effective date of this Act, or any obligation 

21 for taxes levied before that date. 

22 (f) EXTENT OF JURISDICTION.-This Act shall not 

23 be construed to empower the Tribe with special jurisdic24 tion or to deprivt the State of jurisdiction other than as 

25 expressly provided by this Act or by the State implement-
13 

12 

1 ing legislation. The jurisdiction and governmental powers 

2 of the Tribe shall be solely those set forth in this Act and 

3 the State implementing legislation. 

4 (g) IMPACT AlD.-For purposes of the Act of Sep5 tember 30, 1950 (Public Law 874, 81st Congress; 20 

6 U.S.C. 236 et seq.), if any property within the school dis7 trict of any local educational agency is occupied by any 

8 part of the Expanded Reservation, such local educational 

9 agency shall be considered to have fulfilled the requiretO ments of section 2 of such Act and shall be eligible for 

11 payments under section 3 of such Act. 

12 SEC. 5. SETILEMENT FUNDS. 

13 (a) AUTHORIZATION FOR APPROPRIATION.-There is 

14 hereby authorized to be appropriated $32,000,000 for the 

15 Federal share which shall be deposited in the trust funds 

16 established pursuant to section 13 of this Act or paid pur17 suant to section 6(g). 

18 (b) DISBURSEMENT IN ACCORDANCE WITH SETTLE19 MENT AGREEMENT.-The Federal Funds appropriated 

20 pursuant to this Act shall be disbursed in five equal an21 nual installments of $6,400,000 beginning in the fiscal 

22 year following enactment of this Act. Funds transferred 

23 to the Secretary from other sources shall be deposited in 

24 the trust funds established pursuant to section 13 of this 
14 

13 

1 Act or paid pursuant to section 6(g) within 30 da)llot 

2 receipt by the Secretary. 

3 (c) PRivATE FUNDS.-Any private payments made to 

4 settle the claims may be treated, at the election of the 

5 taxpayer, as either a payment in settlement of litigation 

6 or a charitable contribution for Federal income tax pur7 poses. 

8 (d) FEDERAL, STATE, LOCAL AND PRivATE CON9 TRIBUTIONS HELD IN TRUST BY SECRETARY.-The Sec10 retary shall, on behalf of the Tribe, collect those contribu11 tions toward settlement appropriated or received by the 

12 State pursuant to section 5.2 of the Settlement Agreement 

13 and shall either hold such funds totalling $18,000,000, to14 gether with the Federal funds appropriated pursuant to 

15 this Act, in trust for the Tribe pursuant to the provisions 

16 of section 13 of this Act or pay such funds pursuant to 

17 section 6(g) of this Act. 

18 SEC. 6. RATIFICATION OF PRIOR TRANSFERS; EXTINGUISH19 MENT OF ABORIGINAL TITLE, RIGHTS AND 

20 CLAIMS. 

21 (a) RATIFICATION OF TRANSFERS.-Any transfer of 

22 land or natural resources located anywhere within the 

23 United States from, by, or on behalf of the Tribe, any 

24 one or more of its Members, or anyone purporting to be 

25 a Member, including but without limitation any transfer 
15 

14 

1 pursuant to any treaty, compact, or statute of any State, 

2 shall be deemed to have been made in accordance with 

3 the Constitution and all laws of the United States, and 

4 Congress hereby does approve and ratify any such transfer 

5 effective as of the date of said transfer. Nothing in this 

6 section shall be construed to affect or eliminate the per7 sonal claim of any individual Member (except for any Fed8 eral common law fraud claim) which is pursued under any 

9 law of general applicability that protects non-Indians as 

10 well as Indians. 

11 (b) ABORIGINAL TITLE.-To the extent that any 

12 transfer of land or natural resources described in sub13 section (a) of this section may involve land or natural re14 sources to which the Tribe, any of its Members, or anyone 

15 purporting to be a Member, or any other Indian, Indian 

16 nation, or tribe or band of Indians had aboriginal title, 

17 subsection (a) of this section shall be regarded as an extin18 guishment of aboriginal title as of the date of such trans19 fer. 

20 (c) EXTIKGUISH:UENT OF CLAIMS.-By virtue of the 

21 approval and ratification of any transfer of land or natural 

22 resources effected by this section, or the extinguishment 

23 of aboriginal title effected thereby, all claims against the 

24 United States, any State or subdivision thereof, or any 

25 other person or entity, by the Tribe, any of its Membe~ 
16 

15 

1 or anyone purporting to be a Member, or any predecessors 

2 or successors in interest thereof or any other Indian, In3 dian Nation, or tribe or band of Indians, arising at the 

4 time of or subsequent to the transfer and based on any 

5 interest in or right involving such land or natural re6 sources, including without limitation claims for trespass 

7 damages or claims for use and occupancy, shall be deemed 

8 extinguished as of the date of the transfer. 

9 (d) EXTINGUISHMENT OF TITLE.-(1) All claims and 

10 all right, title, and interest that the Tribe, its Members, 

11 or any person or group of persons purporting to be Ca12 tawba Indians may have to aboriginal title, recognized 

13 title, or title by grant, patent, or treaty to the lands lo14 cated anywhere in the United States are hereby extin15 guished. 

16 (2) This extinguishment of claims shall also extin17 guish title to any hunting, fishing, or water rights or 

18 rights to any other natural resource claimed by the Tribe 

19 or a Member based on aboriginal or treaty recognized title, 

20 and all trespass damages and other damages associated 

21 with use, occupancy or possession, or entry upon such 

22 lands. 

23 (e) BAR TO FUTURE CLAIMS.-The United States is 

24 hereby barred from asserting by or on behalf of the Tribe 

25 or any of its Members, or anyone purporting to be a Mem-
17 

16 

1 her, any claim arising before the date of enactment of this 

2 Act from the transfer of any land or natural resources 

3 by deed or other grant, or by treaty, compact, or act of 

4 law, on the grounds that such transfer was not made in 

5 accordance with the laws of South Carolina or the Con6 stitution or laws of the United States. 

7 (f) No DEROGATION OF FEE SIMPLE IN EXISTING 

8 RESERVATION.-Nothing in this section shall be con9 strued to diminish or derogate from the fee simple estate 

10 in the Existing Reservation or fee simple owned by mem11 hers. 

12 (g) COSTS AND ATTORNEYS' FEES.-The parties to 

13 the Suits shall bear their own costs and attorneys' fees 

14 except that the Secretary shall approve and pay to the 

15 Tribe's attorneys in the Suits reasonable attorneys' fees 

16 and expenses not to exceed 10 percent of the $50,000,000 

17 obligated for payment to the Tribe by Federal, State, 

18 local, and private parties pursuant to section 5 of the Set19 tlement Agreement. 

20 (h) PERSONAL CLAIMS NOT AFFECTED.-Nothing in 

21 this section shall be deemed to affect, diminish, or elimi22 nate the personal claim of any individual Indian which is 

23 pursued under any law of general applicability {other than 

24 Federal common law fraud) that protects non-Indians as 

25 well as Indians. 
18 

17 

1 SEC. 7. TRffiAL MEMBERSHIP. 

2 (a) MEMBERSHIP CRITERIA.-A person shall be con3 sidered a member of the Tribe and his or her name shall 

4 be carried on the membership roll if the person is living 

5 on the date of enactment of this Act and6 ( 1) hi£ or her name was listed on the member7 ship roll published by the Secretary in the Federal 

8 Register on February 25, 1961 (26 Federal Register 

9 1680-1688, "Notice of Final Membership Roll"), 

10 and he or she is not excluded under the provisions 

11 of subsection (b); or 

12 (2) The Executive Committee determines, based 

13 on the criteria used to compile the roll referred to 

14 in paragraph (1), that his or her name should have 

15 been included on the membership roll at that time, 

16 but was not; or 

17 (3) he or she is a lineal descendant of a Mem18 her whose name appeared or should have appeared 

19 on the membership roll referred to in paragraph ( 1). 

20 (b) REVISION OF MEMBERSHIP ROLL.-The Tribe 

21 shall revise and update its membership roll to include 

22 those persons eligible for membership under subsection (a) 

23 and excluding any persons found to have been erroneously 

24 listed. 

HR2399 IH-3 
19 

18 

1 (c) FEDERAL REGISTER NOTICE.-As soon as prac2 ticable after the enactment of this Act, the Secretary shall 

3 publish in the Federal Register a notice stating: 

4 ( 1) That the rolls of the Tribe are open and will 

5 remain open for a period of 90 days. 

6 (2) The requirements for membership. 

7 (3) The final membership roll as of September 

8 21, 1959. 

9 ( 4) The updated membership roll as prepared 

10 by the Executive Committee and approved by the 

11 General Council. 

12 (5) The name and address of the tribal or Fed13 era! official to whom inquiries should be made. 

14 (d) FINALIZING MEMBERSHIP RoLL.-Within 120 

15 days after publication of notice under subsection (c), the 

16 Secretary, after consultation with the Tribe, shall prepare 

17 and publish in the Federal Register a proposed final roll 

18 of the Tribe's membership. Within 60 days from the date 

19 of publication of the proposed final roll, an appeal may 

20 be filed with the Executive Committee under rules made 

21 by the Executive Committee in consultation with the Sec22 retary. Such an appeal may be filed by a Member with 

23 respect to the inclusion of any name on the proposed mem24 bership roll and by any person with respect to the exclu25 sion of his or her name from the membership roll. The 
20 

19 

1 Executive Committee shall review such appeals and render 

2 a decision, subject to the Secretary's approval. If the Ex3 ecutive Committee and the Secretary disagree, the Sec4 retary's decision will be final. All such appeals shall be 

5 resolved within 90 days following publication of the pro6 posed roll. The final membership roll of the Tribe shall 

7 then be published in the Federal llilgister and shall be 

8 final for purposes of the distribution of funds from the 

9 Per Capita Trust Fund. 

10 (e) FUTURE MEMBERSHIP IN THE TRIBE.-The 

11 Tribe shall have the right to determine future membership 

12 in the Tribe; however, in no event may an individual be 

13 added to the final membership roll which is compiled in 

14 accordance with subsection (d) unless an individual is a 

15 lineal descendant of a person on such final membership 

16 roll. 

17 SEC. 8. TRANSITIONAL AND PROVISIONAL GOVERNMENT. 

18 (a) FUTURE TRIBAL GOVERNMENT.-The Tribe 

19 shall adopt a new constitution within 24 months after en20 actment of this Act. 

21 (b) EXECUTIVE COMMITTEE AS TRANSITIONAL 

22 BODY.-(1) Until the Tribe has adopted a constitution, 

23 the existing tribal constitution shall remain in effect and 

24 the Executive Committee is recognized as the provisional 

25 and transitional governing body of the Tribe. For a period 
21 

20 

1 not to exceed 24 months from the date of enactment of 

2 this Act, the Executive Committee shall3 (A) represent the Tribe and its Members in the 

4 implementation of this Act; and 

5 (B) during such period6 (i) have full authority to enter into con7 tracts, grant agreements and other arrangeS ments with any Federal department or agency; 

9 and 

10 (ii) have full authority to administer or op11 erate any program under such contracts or 

12 agreements. 

13 (2) Until the initial election of tribal officers under 

14 a new constitution and by-laws, the Executive Committee 

15 shall16 (A) determine tribal membership in accordance 

17 "; th the provisions of section 7; and 

18 (B) oversee and implement the revision and 

19 proposal to the Tribe of a new constitution and con20 duct such tribal meetings and elections as required 

21 by this Act. 

22 SEC. 9. TRIBAL CONSTITUTION AND GOVERNANCE. 

23 (a) It-:DIA!>: REOHGA!\IZATION ACT.-If the Tribe so 

24 elects, it may organize under the Act of June 18, 1934 

25 (25 U.S.C. 46 I et seq.; commonly referred to as the "In-
22 

21 

1 dian Reorganization Act"). The Tribe shall be subject to 

2 such Act except to the extent such sections are inconsist3 ent with this Act. 

4 (b) ADoPTION OF NEW TRIBAL CONSTITUTION.-

5 Within 180 days after the enactment of this Act, the Exec6 utive Committee shall draft and distribute to each Member 

7 eligible to vote under the Tribal constitution in effect on 

8 the date of enactment of this Act, a proposed constitution 

9 and bylaws for the Tribe together with a brief, impartial 

10 description of the proposed constitution and bylaws and 

11 a notice of the date, time and location of the election under 

12 this subsection. ~ot sooner than 30 days or later than 90 

13 days after the distribution of the proposed constitution, 

14 the Executive Committee shall conduct a secret-ballot elec15 tion to adopt a new constitution and bylaws. ' ~ 

16 (c) :\lAJORITY VOTE FOR ADOPTION; PROCEDURE IN 

17 EYEXT OF F AILlJRE TO ADOPT PROPOSED CONSTITU18 TIOK.-(1) The tribal constitution and bylaws shall be 

19 ratified and adopted if20 (A) not less than 30 percent of those entitled 

21 to vote do vote; and 

22 (B) approved by a majority of those actually 

23 YOting. 

24 (2) If in any such election such majority does not ap25 prove the adoption of the proposed constitution and by-
23 

22 

1 laws, the Executive Committee shall prepare another pro2 posed constitution and bylaws and present it to the Tribe 

3 in the same manner provided in this section for the first 

4 constitution and bylaws. Such new proposed constitution 

5 and bylaws shall be distributed to the eligible voters of 

6 the Tribe no later than 180 days after the date of the 

7 election in which the first proposed constitution and by8 laws failed of adoption. An election on the question of the 

9 adoption of the new proposal of the Executive Committee 

10 shall be conducted in the same manner provided in sub11 section (b) for the election on the first proposed constitu12 tion and bylaws. 

13 (d) ELECTION OF TRIBAL 0FFICERS.-Within 120 

14 days after the Tribe ratifies and adopts a constitution and 

15 bylaws, the Executive Committee shall conduct an election 

16 by secret ballot for the purpose of electing tribal officials 

17 as provided in the constitution and bylaws. Subsequent 

18 elections shall be held in accordance with the Tribe's con19 stitution and bylaws. 

20 (e) EXTENSION OF TIME.-Any time periods pre21 scribed in subsections (b) and (c) may be altered by writ22 ten agreement between the Executive Committee and the 

23 Secretary. 
24 

23 

SEC. 10. JURISDICTION AND GOVERNANCE OF THE RES2 ERVATION. 

3 (a) POWERS OF TRIBE.-(1) Regardless of whether 

4 the Tribe elects to organize under the Act of June 18, 

5 1934, under section 9(a), in any constitution adopted by 

6 the Tribe, the Tribe may be authorized to exercise author7 ity as consistent with the Settlement Agreement and this 

8 Act9 (A) to regulate the use and disposition of tribal 

10 property; 

11 (B) to define laws, petty crimes, and rules of 

12 conduct applicable to Members while on the Reserva13 tion, supplementing but not supplanting the criminal 

14 laws of the State; 

15 (C) to regulate the conduct of businesses lo16 cated on the Reservation and individuals residing on 

17 the Reservation; 

18 (D) to levy taxes on Members and levy other 

19 taxes as provided by this Act and by the Settlement 

20 Agreement; 

21 (E) to grant exemptions, abatements, or waiv22 ers from any tribal laws, tribal regulations, or tribal 

23 taxes, except the Tribal Sales and Use Taxes, other24 wise applicable on the Reservation, including waivers 

25 of the jurisdiction of any tribal court; 

26 (F) to adopt its own form of government; 
25 

24 

(G) to determine membership as provided by 

2 this Act; 

3 (H) to exclude non-members from its member4 ship rolls and from the Reservation, except for5 (i) any public roads traversing the Res6 ervation; 

7 (ii) passage on and use of the Catawba 

8 River; 

9 (iii) public or private easements encumber-

} 0 ing the Reservation properly used by those with 

11 authority to use such easements; 

12 (iv) Federal, State and local governmental 

13 officials and employees duly performing official 

14 governmental functions on the Reservation; and 

15 (v) any other access to the Reservation al16 lowed by Federal law; and 

17 (I) to charter tribally-owned economic develop18 ment corporations and enterprises provided the cor19 porations or enterprises register with the Secretary 

W of State for South Carolina as a domestic or foreign 

!1 corporation when doing business off the Reservation. 

~2 (2) Except as otherwise provided in this Act and in 

~3 the Settlement Agreement, the Tribe shall exercise full au-

~4 thority over internal matters. 
26 

25 

1 (b) INDIAN CIVIL RIGHTS AcT.-The Tribe shall be 

2 subject to titles II through VII of Public Law 90-284, 

3 as amended (25 U.S.C. 1301 et seq.; commonly referred 

4 to as the "Indian Civil Rights Act") which shall apply to 

5 the Reservation, any tribal court, and anyone subject to 

6 the jurisdiction of the Tribe. 

7 SEC. 11. CRIMINAL JURISDICTION. 

8 (a) CRIMINAL JURISDICTION GENERALLY.-Except 

9 as provided in subsection (b), the State shall exercise ex10 elusive jurisdiction over all crimes under the statutory or 

11 common law of the State of South Carolina. 

12 (b) CRIMINAL JURISDICTION OF TRIBAL COURT.-

13 (1) Any constitution adopted by the Tribe may provide 

14 for a tribal court with original and appellate criminal ju15 risdiction, subject to the following limitations: 

16 (A) The territorial jurisdiction of the court shall 

17 be limited to the Reservation. 

18 (B) The jurisdiction of the court over persons 

19 shall be limited to Members. 

20 (C) The subject matter jurisdiction of the court 

21 shall be limited to crimes within the jurisdiction of 

22 the State's Magistrates' Courts and to any addi23 tiona) misdemeanors and petty offenses specified in 

24 the ordinances or laws adopted by the Tribe. 

HR 2399 IH-4 
27 

26 

1 (D) The fines and penalties for such mis2 demeanors and offenses shall not exceed the maxi3 mum fines and penalties that a State magistrate's 

4 court may impose. 

5 (2) In all cases in which the tribal court has jurisdic6 tion over State law7 (A) its jurisdiction shall be concurrent with the 

8 jurisdiction of the Magistrates' Court of the State; 

9 and 

10 (B) defendants shall have the right to remove 

11 such cases to the Magistrates' Court or appeal their 

12 convictions in tribal court cases to the General Ses13 sions Court, in the same manner that Magistrates' 

14 Court's decisions may be appealed, or in accordance 

15 with such procedures as the South Carolina General 

16 Assembly may provide. 

17 ( 3) In cases where the tribal court is applying those 

18 additional ordinances or laws adopted by the Tribe in ac19 cordance with this subsection, it shall have exclusive juris20 diction. 

21 (c) PEACE OFFICERS.-For the purpose of enforcing 

22 the Tribe's powers under sections lO(a), 11, and 17 of 

23 this Act, the Tribe may employ peace officers. The employ24 ment and authority of peace officers shall be in the man-

•HR 2399 m 
28 

27 

1 ner prescribed in the Settlement Agreement and the State 

2 implementing legislation. 

3 SEC. 12. CIVD.. JURISDICTION OF TRIBAL COURT. 

4 (a) JURISDICTION AS PRESCRIBED BY THIS ACT.-

5 (1) The Tribe may provide in its constitution for a Tribal 

6 Court having civil jurisdiction which may extend up to, 

7 but not exceed, the extent provided by this Act. The Tribe 

8 may have a court of original jurisdiction, as well as an 

9 appellate court. 

10 (2)(A) With respect to actions on contracts, the Trib11 al Court may be vested with jurisdiction over the following: 

12 (i) An action on a contract to which the Tribe 

13 or a Member is a party, which expressly provides in 

14 writing that the Tribal Court has concurrent or ex15 elusive jurisdiction. 

16 (ii) An action on a contract between the Tribe 

17 or a Member and other parties or agents thereof 

18 who are physically present on the Reservation when 

19 the contract is made, which is to be performed in 

20 part on the Reservation so long as the contract does 

21 not e:li."J)ressly exclude jurisdiction of the Tribal 

22 Court. 

23 (iii) An action on a contract to which the Tribe 

24 or a member of the Tribe is a party where more 

25 than 50 percent of the services to be rendered are 

•HR 2399 m 
29 

28 

performed on the Reservation so long as the contract 

2 does not expressly exclude jurisdiction of the Tribal 

3 Court. 

4 (B) 1<-,or purposes of this paragraph, the delivery of 

5 goods or the solieitation of business on the Reservation 

6 shall not constitute part performance sufficient to confer 

7 jurisdiction. 

8 (3) With respect to actions in tort, the Tribal Court 

9 may be vested with jurisdietion over the follo"ing: 

10 (A) An action arising ont of an intentional tort, 

I I as defined hy South Carolina law, eommittcd on the 

I 2 Rescn 'ation in which recovery is sought for bodily 

I 3 injuries ancVor damages to tangible property located 

14 on the Rese1vation. 

15 (B) .t\.n action arising out of negligent tortious 

16 <~onduet occurring on the Hcservation or condu<:t oc17 enrring on the Reservation for which strict liability 

I 8 may be imposed, excluding, howcn•r, aecidents oc19 cmTing \vithin the right-of-way limits of any high20 way, road, or other public casement mmcd or main21 t.ained by the State or any of its subdivisions, or by 

22 the Pnited States, which a!Juts or crosses the Rcs23 mvation. Any such action in tort involving a non24 member of the Tribe as defendant may be removed 

25 to a State or Federal court of appropriate jurisdic-

•HR 2399 IH 
30 

29 

1 tion if the amount in controversy exceeds the juris2 dictional limits then applicable to Magistrate's 

3 Courts in the State of South Carolina. 

4 ( 4) The Tribal Court may be vested with exclusive 

5 jurisdiction over internal matters of the Tribe. 

6 ( 5) The Tribal Court may be vested with jurisdiction 

7 over domestic relations where both spouses to the marS riage are Members and both reside on the Reservation or 

9 last resided together on the Reservation before the separa1 0 tion leading to their divorce. 

II (6) The Tribal Court may be vested with jurisdiction 

I2 to enforce against any business located on the Reserva13 tion, and any Member or non-Member residing on the Res14 ervation, any tribal civil regulation regulf}ting conduct on 

15 the Reservation enacted pursuant to section lO(a) or 17 

16 of this Act. Such persons or entities are charged with no17 tice of the Tribe's regulations governing conduct on the 

18 Reservation and are subject to the enforcement of such 

I9 regulations in the tribal court unless the Tribe has specifi20 cally exempted the entity or person from any or all regula21 tion and enforcement in tribal court. 

22 (b) CONCURRENT JURISDICTION.-(1) The original 

23 jurisdiction of the Tribal Court over matters set forth in 

24 paragraphs (2) (if concurrent), (3), and (5) of subsection 

25 (a) shall be concurrent with the jurisdiction of the Court 

•HR 1399 m 
31 

30 

1 of Common Pleas of South Carolina, the Family Court, 

2 and United States District Court for South Carolina 

3 where permitted by title 28 of the United States Code. 

4 (2) The original jurisdiction of the Tribal Court over 

5 the matters set forth in paragraph (2)(A) of subsection 

6 (a) shall be concurrent or exclusive depending upon the 

7 agreement of the parties. 

8 (3) The original jurisdiction of the Tribal Court over 

9 matters set forth in paragraph ( 4) of subsection (a) shall 

10 be exelusive. 

11 (4) The original jurisdiction of the Tribal Court over 

12 matters set forth in paragraph (6) of subsection (a) shall 

13 be exclusive unless the Tribe has \Vaiwd sueh exclusiw 

14 jurisdietion as to any person or entit~·. 

15 (5) As to all paragraphs in subseetion (a) referred 

16 to in this subsection, jnrisdietion m·er apJwals, if any, is 

17 gowrned by subscetion (d). 

18 (e) WAIYEH OF ,JCHISDICTIO.:\'.-The Tribe may 

19 waive Tribal Court jnrisdietion or the applieation of tribal 

20 lcms \\-:ith respcet to any person or firm residing, doing· 

21 business, or othen\-:ise entering upon the Reservation or 

22 eontraeting \\-ith the Tribe. Any Member may also waive 

23 Tribal Court jurisdietion or speeify in a \\1'itten contraet 

24 the Ia\\· of any appropriate jurisdiction to govern any com-

•HR 2399 IH 
32 

31 

1 mercia! transaction or the interpretation of a contract to 

2 which the Member is a party. 

3 (d) APPEALS TO STATE OR FEDERAL COURT.-(1) 

4 All final judgments entered in actions tried in Tribal 

5 Court shall be subject to an appeal to the Family Court, 

6 the Court of Common Pleas, or the United States District 

7 Court depending upon whether that court would have had 

8 jurisdiction over the appealed matter had it been com9 menced in that court if1 0 (A) a party to the suit is not a member of the 

11 Tribe; 

12 (B) the amount in controversy or the cost of 

13 complying with any equitable order or decree exceeds 

14 the jurisdictional limits then applicable in the Mag15 istrate's Court of South Carolina; and 

16 (C) the subject matter of the suit does not fall 

17 within the provisions of subsection (a)(2)(A)(i) if ju18 risdiction is exclusive, or subsection (a)(4) or (6). 

19 (2) The Tribe may enlarge the right of appeal to in20 elude other subject matters and Members, subject to such 

21 rules and procedures as the applicable court and relevant 

22 State and Federal laws may provide. 

23 (3) In any appeal under this subsection, the court, 

24 as appropriate, may25 (A) enter judgment affirming the Tribal Court; 

•HR 2399 IH 
33 

32 

(B) dismiss the case for lack of jurisdiction of 

2 the Tribal Court, but only in those cases where the 

3 Tribal Court has first addressed the issue of its ju4 risdiction; 

5 (C) reverse or remand the case for retrial or re6 consideration in Tribal Court; or 

7 (D) grant a trial de novo in its court. 

8 ( 4) In any appeal, trial, or trial de novo pursuant 

9 to this subsection, the reviewing court shall apply any reg10 ulation enacted pursuant to tribal authority. 

11 (c) FULL FAITH AND CHEDIT.-(1) In cases subject 

12 to the provisions of subsection (a)(3) or (d), all final judg13 ments of the Tribal Court shall be given full faith and 

14 credit in the State or Federal court with appropriate juris15 diction, and the Tribal Court shall give full f<1ith and cred16 it to final judgments of the State and Federal courts. 

17 (2) If a Member seeks to enforce against a non-l\'Iem18 her in Federal court a final judgment of the Tribal Court 

19 in a case not subject to the provisions of subsection (a)(3) 

20 or (d), the judgment shall be reviewed by the Federal 

21 court in the manner provided in title 9, United States 

22 Code. 

23 (f) SOVEREIGN ll\Tl\IUNITY.-(1) The Tribe may sue, 

24 or be sued, in any court of competent jurisdiction; except, 

25 however, that the Tribe shall enjoy sovereign immunity, 

•HR 2399 IH 
.. 34 

33 

1 including damage limits and except as provided in this 

2 subsection, immunity from seizure, execution, or encum3 brance of properties, to the same extent as the political 

4 subdivisions of the State as provided in the South Carolina 

5 Tort Claims Act (Section 15-78-10, et seq., S.C. Code 

6 Annotated, 1976 as amended), and amendments of gen7 eral applicability thereto adopted after the date of enact8 ment of this Act. With respect to non-consumer liability 

9 based on contract, however, the Tribe may, in a written 

10 contract, provide that it is immune from suit on that con11 tract as if there had been no waiver of sovereign immunity. 

12 (2) Notwithstanding the provisions of this section, 

13 the Tribe shall be subject to suit as provided in section 

14 17(a) of this Act. 

15 (3) The nature and extent of this sovereign immunity 

16 shall be construed consistent with the Settlement Agree17 ment and with applicable State and Federal law. 

18 ( 4)(A) The Tribe shall procure and maintain liability 

19 insurance with the same coverage and limits as required 

20 of political subdivisions of the State. 

21 (B) In the event that the Tribe's insurance coverage 

22 is inadequate or unavailable to satisfy a judgment within 

23 the limits of the South Carolina Tort Claims Act, neither 

24 the judgment nor any other process may be levied upon 

25 the corpus or principal of the Tribal Trust Funds or upon 

HR2399IH-5 
35 

34 

any property held in trust for the Tribe by the United 

2 States; however, the Tribe or the Secretary shall honor 

3 valid orders of a Pederal or State court which enters 

4 money judgments for causes of action against the Tribe 

5 arising after the consummation of the Settlement Agree6 ment by making an assignment to the judgment creditor 

7 of the right to receive income out of the next quarterly 

8 payment or payments of income from the Tribal Trust 

9 Funds. 

10 (g) I!\DIAN Cmr,o WELFARE ACT.-(1) The Indian 

11 Child Welfare Act of 1978 (25 U.S.C. 1901 et seq.) shall 

12 apply to Catawba Indian children except as provided in 

13 this section. 

14 (2) Before the Tribe may assume jurisdiction over In15 dian child custody proceedings under the Indian Child 

16 \Velfare Act of 1978, the Tribe shall present to the Sec17 rotary for approval a petition to assume such jurisdiction, 

18 and the Secretary shall approve the petition in the manne1· 

19 prescribed in such Act. Any petition to assume jurisdiction 

20 over Indian child custody proceedings by the Tribe shall 

21 be considered and determined by the Secretary in accord22 ance with the relevant provisions of such Act. The Sec23 retary's determination that the Tribe may assume juris24 diction under such Act shall not affect any action or pro25 ceeding over which a court has assumed jurisdiction. 
36 

35 

(3) Until the Tribe has assumed jurisdiction over In2 dian child custody proceedings, the State shall retain ex3 elusive jurisdiction over Indian custody proceedings; how4 ever, the State Court shall apply the Indian Child Welfare 

5 Act of 1978 in such proceedings. 

6 (4)(A) The Indian Child Welfare Act of 1978 shall 

7 not apply to private adoptions of Indian children under 

8 the jurisdiction of the Tribe under such Act where9 (i) both parents consent to the adoption; or 

10 (ii) in the case of an unwed motherIt (I) where the mother consents to the adop12 tion when the father's consent is not necessary 

13 for the adoption under South Carolina Law 

14 Section 20-7-1690 and any amendments there15 to, and 

16 (II) the parents or mother help choose 

17 adoptive parents, regardless of whether or not 

18 the adoptive parents are outside the preferences 

19 of the Indian Child Welfare Act of 1978. 

20 (B) The court may consider any benefits, material 

21 and cultural, the child may lose in determining whether 

22 the proposed adoption is in the best interests of the child. 

23 Failure of the courts to make this consideration shall not 

24 be subsequently held to invalidate the adoption. 
37 

36 

(5) In all cases of adoption, regardless of whether the 

2 Indian Child Welfare Act of 1978 applies, section 107 of 

3 such Act (25 U.S.C. 1917) shall apply. 

4 (h) JURISDICTION OF STATE COURTS.-lf no Tribal 

5 Court is established by the Tribe, the State shall exercise 

6 jurisdiction ove1· all civil and criminal cases arising out of 

7 acts and transactions occurring on the Reservation or in8 volving Members. If the Tribe establishes a Tribal Court, 

9 the provisions of subsection (b) and section 11 (b) shall 

10 govern \Yhether such jurisdiction is exclusive or coneur11 rent. 

12 SEC. 13. TRIBAL TRUST FUNDS. 

13 (a) PURPOSES OP TRUST FUNDS.-All funds ]Jaid 

14 pursuant to section 5 of this Act shall be deposited with 

15 the Secretary in trust for the benefit of the Tribe. Sepa16 rate tiust funds shall be established for the following pur17 poses: Economic Development, Land Acquisition, Edu18 cation, Social Services and Elderly Assistance, and Per19 Capita Payments. Except as provided in this section, the 

W Tribe, in consultation with the Secretary, shall determine 

~1 the share of settlement pa,yments to be deposited in each 

~2 Trust Fund, and define, consistently with the provisions 

~3 of this section, the purposes of each Trust Fund and pro-

~4 visions for administering each, specifically including provi-
38 

37 

1 sions for periodic distribution of current and accumulated 

2 income, and for invasion and restoration of principal. 

3 (b) OUTSIDE MANAGEMENT 0PTION.-(l) The 

4 Tribe, in consultation with and subject to the approval of 

5 the Secretary, is authorized to place any of the Trust 

6 Funds under professional management, outside the De7 partment of the Interior. 

8 (2) If the Tribe elects to place any of the Trust 

9 Funds under professional management outside the De10 partment of the Interior, it may engage a consulting or 

11 advisory firm to assist in the selection of an independent 

12 professional investment management firm, and it shall en13 gage, with the approval of the Secretary, an independent 

14 investment management firm of proven competence and 

15 experience established in the business of counseling large 

16 endowments, trusts, or pension funds. 

17 (3) The Secretary shall have 45 days to approve or 

18 reject any independent investment management firm se19 lected by the Tribe. If the Secretary fails to approve or 

20 reject the firm selected by the Tribe within 45 days, the 

21 investment management firm selected by the Tribe shall 

22 be deemed to have been approved by the Secretary. 

23 ( 4) Secretarial approval of an investment manage24 ment firm shall not be unreasonably withheld, and any 

25 Secretarial disapproval of an investment management firm 
39 

38 

1 shall be accompanied by a detailed explanation setting 

2 forth the Secretary's reasons for such disapproval. 

3 (5)(A) For funds placed under professional manage4 mcnt, the Tribe, in consultation with the Secretary and 

5 its investment manager, shall develop6 (i) current opet·ating and long-term capital 

7 budgets; and 

8 (ii) a plan for managing, investing, and distrib9 uting income and principal from the Trust Funds to 

lO match the requirements of the Tribe's operating and 

11 capital budgets. 

12 (B) For each Trust Fund which the Tribe elects to 

13 place under outside professional management, the invest14 ment plan shall provide for investment of Trust Fund as15 sets so as to serve the purposes described in this section 

16 and in the Tmst Fund provisions which the Tribe shall 

17 establish in consultation with the Secretary and the inde18 pendent investment management firm. 

19 (C) Distributions from each Trust Fund shall not ex20 cecd the limits on the 11se of prineipal and income imposed 

21 by the applicable provisions of this Aet for that particular 

22 'rrust Fund. 

23 (D)(i) The Tribe's investment management plan shall 

24 not become cffeetive until approved by the Secretary. 
40 

39 

1 (ii) Upon submission of the plan by the Tribe to the 

2 Secretary for approval, the Secretary shall have 45 days 

3 to approve or reject the plan. If the Secretary fails to ap4 prove or disapprove the plan within 45 days, the plan shall 

5 be deemed to have been approved by the Secretary and 

6 shall become effective immediately. 

7 (iii) Secretarial approval of the plan shall not be un8 reasonably withheld and any secretarial rejection of the 

9 plan shall be accompanied by a detailed explanation set10 ting forth the Secretary's reasons for rejecting the plan. 

11 (E) Until the selection of an established investment 

12 management firm of proven competence and experience, 

13 the Tribe shall rely on the management, investment, and 

14 administration of the Trust Funds by the Secretary pursu15 ant to the provisions of this section. 

16 (c) TRANSFER OF TRUST FUNDS; EXCULPATION OF 

17 SECRETARY.-Upon the Secretary's approval of the 

18 Tribe's investment management firm and an investment 

19 management plan, all funds previously deposited in tJust 

20 funds held by the Secretmy and all funds subsequently 

21 paid into the trust funds, which are chosen for outside 

22 management, shall be transferred to the accounts estab23 lished by an investment management firm in accordance 

24 with the approved investment management plan. The Sec25 retary shall be exculpated by the Tr:ibe from li~bility for 
41 

40 

an~· loss of principal or interest resulting from investment 

2 decisions made by the investment management firm. Any 

3 Trust Fund transferred to an investment management 

4 firm shall be returned to the Secretary upon \\Titten re5 quest of the Tribe, and the Secretary shall manage such 

6 funds for the benefit of the Tribe. 

7 (d) LA:\"D ACQCISITION TRL:ST.-(1) The Secretary 

8 sha ll establish and maintain a Catawba Land Acquisition 

9 Tmst Fund, and until the 'l'ribe engages an outside firm 

10 for inwstment management of this trust fund, the Sec11 retary shall manage, invest, and administer this trust 

12 fund. The original principal amount of the Land Acquisi13 tion Tmst Fund shall be determined by the Tribe in con14 sultation ,,·ith the Secretary. 

15 (2) The pri1wipal and income of the Land Acquisition 

16 Tmst Fuud may be used for· the purchase and devclop17 ment of Reservation and non-Heservation land pursuant 

18 to the Settlement Agreement, costs related to land acquisi19 tion, and costs of constmetion of infrastructure and dcvel20 opment of the Hescn•ation ami non-Reservation land. 

21 (3){A) Upon acquisition of the maximum amount of 

22 land allowed for expansion of the Reservation, or upon re23 quest of the Tribe and approval of the Secretary pursuant 

24 to the Secretarial approva l provisions set forth in sub25 section (b)(5}(D) of this scetion, all or part of the balance 
42 

41 

1 of this trust fund may be merged into one or more of the 

2 Economic Development Trust Fund, the Education Trust 

3 Fund, or the Social Services and Elderly Assistance Trust 

4 Fund. 

5 (B) Alternatively, at the Tribe's election, the Land 

6 Acquisition Tmst Fund may remain in existence after all 

7 the Reservation land is purchased in order to pay for the 

8 purchase of non-Reservation land. 

9 ( 4)(A) The Tribe may pledge or hypothecate the in10 come and principal of the Land Acquisition Trust Fund 

11 to secure loans for the purchase of Reservation and non12 Reservation lands. 

13 (B) Following enactment of this Act and before the 

14 final annual disbursement is·made as provided in section 

15 5 of this Act, the Tribe may pledge or hypothecate up to 

16 50 percent of the unpaid annual installments required to 

17 be paid to this Trust Fund, the Economic Development 

18 Tmst Fund and the Social Services and Elderly Assist19 ance Tmst Fund by section 5 of this Act and by section 

20 5 of the Settlement Agreement, to secure loans to finance 

21 the acquisition of Reservation or non-Reservation land or 

22 infrastmcture improvements on such lands. 

23 (e) ECONOMIC DEVELOPMENT TRUST.-(1) The Sec24 retary shall establish and maintain a Catawba Economic 

25 Development Trust Fund, and until the Tribe engages an 
43 

42 

outside firm for investment management of this Trust 

2 Fund, the Secretary shall manage, invest, and administer 

3 this Trust Fund. The original principal amount of the 

4 Economic Development Trust Fund shall be determined 

5 b~· the Tribe in consultation with the Secretary. The prin6 cipal and income of this Trust Fund may be used to sup7 port tribal economic development activities, ineluding but 

8 not limited to infrastructure improvements and tribal 

9 business ventures and commercial investments benefiting 

10 the Tribe. 

11 (2) The Tribe, in consultation with the Secretary, 

12 may pledge or h,ypothecatc future income and up to 50 

13 percent of the principal of this Tmst Fund to secure loans 

14 for economic development. In defining the provisions for 

15 administration of this Trust Fund, and before pledging 

16 or hypothecating future income or principal, the Tribe and 

17 the Secretary shall ag-ree on rules and standards for the 

18 invasion of prineipal and for repayment or restoration of 

19 principal, which shall encourage preservation of principal, 

20 and provide that, if feasible, a portion of all profits derived 

21 from activities funded by prinr~ipal be applied to repa,v22 ment of the Tmst J<'und. 

23 (3) Following the enactment of this Aet and before 

24 the final annual disbursement is made as provided in sec25 tion 5 of this Act, the Tribe may pledge m· hypothe(:atc 
44 

43 

1 up to 50 percent of the unpaid annual installments re2 quired to be paid by section 5 of this Act and by section 

3 5 of the Settlement Agreement to secure loans to finance 

4 economic development activities of the Tribe, including 

5 (but not limited to) infrastructure improvements on Res6 ervation and non-Reservation lands. 

7 ( 4) If the Tribe develops sound lending guidelines ap8 proved by the Secretary, a portion of the income from this 

9 Trust Fund may also be used to fund a revolving credit 

10 account for loans to support tribal businesses or business 

11 enterprises of tribal members. 

12 (f) EDUCATION TRUST.-The Secretary shall estab13 lish and maintain a Catawba Education Trust Fund, and 

14 until the Tribe engages an outside firm for investment 

15 management of this Trust Fund, the Secretary shall man16 age, invest, and administer this Trust Fund. The original 

17 principal amount of this Trust Fund shall be determined 

18 by the Tribe in consultation with the Secretary; subject 

19 to the requirement that upon completion of all payments 

20 into the Trust Funds, an amount equal to at least 1/a of 

21 all State, local, and private contributions made pursuant 

22 to the Settlement Agreement shall have been paid into the 

23 Education Trust Fund. Income from this Trust Fund 

24 shall be distributed in a manner consistent with the terms 

25 of the Settlement Agreement. The principal of this Trust 
45 

44 

Fund shall not be invaded or transferred to any other 

2 Trust Fund, nor shall it be pledged or encumbered as se3 curity. 

4 (g) SOCIAL SERVICES AND ELDERIN ASSISTANCE 

5 TRUST.-(1) The Secretary shall establish and maintain 

6 a Catawba Social Services and Elderly Assistance Trust 

7 Fund and, until the Tribe engages an outside firm for in8 vestment management of this Trust Fund, the Secretary 

9 shall manage, invest, and administer the Social Services 

10 and Elderly Assistance Trust Fund. The original principal 

11 amount of this Trust Fund shall be determined by the 

12 Tribe in consultation with the Secretary. 

13 (2) The income of this Trust Fund shall be periodi14 cally distributed to the Tribe to support social services 

15 programs, including (but not limited to) housing, care of 

16 elderly, or physically or mentally disabled Members, child 

17 care, supplemental health care, education, cultural prcser18 vation, bmial and cemetery maintenance, and operation 

19 of tribal govemmcnt. 

20 (3) The Tribe, in consultation with the Secretary, 

21 shall establish eligibility criteria and procedures to carry 

22 out this subsection. 

23 (h) PER CAPITA PAYMgNT TIWST FUND.-(1) The 

24 Secretary shall establish and maintain a Catawba Per 

25 Capita Payment Tmst Fund in an amount equal to 15 
46 

45 

percent of the settlement funds paid pursuant to section 

2 5 of the Settlement Agreement. Until the Tribe engages 

3 an outside firm for investment management of this Trust 

4 Fund, the Secretary shall manage, invest, and administer 

5 the Catawba Per Capita Payment Trust Fund. 

6 (2) Each person whose name appears on the final roll 

7 of the Tribe published by the Secretary pursuant to sec8 tion 7(c) of this Act will receive a one-time, non-recurring 

9 payment from this Trust Fund. 

10 (3) The amount payable to each member shall be dell termined by dividing the trust principal and any accrued 

12 interest thereon b,v the number of members on the final 

13 roll. 

14 ( 4)(A) SuQject to the proVlsiOns of this paragraph, 

15 each enrolled member who has reached the age of 21 years 

16 on the date the final roll is published shall receive the pay17 ment on the date of distribution, which shall be as soon 

18 as practicable after date of publication of the final mil. 

19 Adult Members shall be paid their pro rata share of this 

20 Trust Fund on the date of distribution unless they elect 

21 in '\Titing to leave their pro rata share in the Trust Fund, 

22 in whieh ease such share shall not be distributed. 

23 (B) The pro rata share of adult Members who elect 

24 not to withdraw their payment from this Trust Fund shall 

25 be managed, invested and a<lministe1·ed, together with the 
47 

46 

funds of Members who have not attained the age of 21 

2 years on the date the final roll is published, until such 

3 Member requests in writing that their pro rata share be 

4 distributed, at which time such Member's pro rata share 

5 shall be paid, together with the net income of the Trust 

6 Fund allocable to such Member's share as of the date of 

7 distribution. 

8 (C) No member may elect to have their pro rata share 

9 managed by this Trust Fund for a period of more than 

10 21 years after the date of publication of the final roll. 

11 (5}(A} Subject to the provisions of this paragraph, 

12 the pro rata share of any Member who has not attained 

13 the age of 21 years on the date the final roll is published 

14 shall be managed, invested and administered pursuant to 

15 the provisions of this section until such Member has at16 taincd the age of 21 years, at which time such Member's 

17 pro rata share shall be paid, together with the net income 

18 of the Trust Fund allocable to such Member's share as 

19 of the date of payment. Such Members shall be paid their 

20 pro rata share of this Trust Fund on the date they attain 

21 21 years of age unless they elect in writing to leave their 

22 pro rata share in the Trust Fund, in which case such 

23 share shall not be distributed. 

24 (B) The pro rata share of such Members who elect 

25 not to withdraw their payment from this trust fund shall 
48 

47 

1 be managed, invested and administered, together with the 

2 · funds of members who have not attained the age of 21 

3 years on the date the final roll is published, until such 

4 Member requests in writing that their pro rata share be 

5 distributed, at which time such Member's pro rata share 

6 shall be paid, together with the net income of the Trust 

7 Fund allocable to such Member's share as of the date of 

8 distribution. 

9 (C) No Member may elect to have their pro rata 

10 share retained and managed by this Trust Fund beyond 

11 the expiration of the period of 21 years after the date of 

12 publication of the final roll. 

13 (6) After payments have been made to all Members 

14 entitled to receive pa;vments, this Trust Fund shall termi15 nate, and any balance remaining in this Trust Fund shall 

16 be merged into the Economic Development Trust Fund, 

17 the Education Trust Fund, or the Social Services and El18 derly Assistance Tmst Fund, as the Tribe may determine. 

19 (i) DCRATIOX OF TRCST Fnms.-Subject to the 

20 provisions of this section and with the exception of the 

21 Catawba Per Capita Pa.nnent Trust Fund, the Tmst 

22 Funds established in accordance with this section shall 

23 continue in existence so long as the Tribe exists and is 

24 recognized by the United States. The principal of these 

25 Trust Funds shall not be invaded or distributed except 
49 

48 

as expressly authorized in this Act or in the Settlement 

2 Agreement. 

3 (j) TRANSFER OF MONEY AMONG TRUST FUNDS.-

4 The Tribe, in consultation with the Secretary, shall have 

5 the authority to transfer principal and accumulated in6 come between Trust Funds only as follows: 

7 (1) Funds may be transferred among the Ca8 tawba Economic Development Trust Fund, the Ca9 tawba Land Acquisition Trust Fund and the Cal 0 tawba Social Services and Elderly Assistance Trust 

11 Fund, and from any of those three Trust Funds into 

12 the Catawba Education Trust Fund; except, that the 

13 mandatory share of State, local, and private sector 

14 funds invested in the original corpus of the Catawba 

15 Education Trust Fund shall not be transferred to 

16 any other Trust Fund. 

17 (2) Any Trust Fund, except for the Catawba 

18 Education Trust Fund, may be dissolved by a vote 

19 of two-thirds of those Members eligible to vote, and 

20 the assets in such Trust Fund shall be transferred 

21 to the remaining Trust Funds; except, that (A) no 

22 assets shall be transferred from any of the Trust 

23 Funds into the Catawba Per Capita Payment Trust 

24 Fund, and (B) the mandatory share of State, local 

25 and private funds invested in the original corpus of 
50 

49 

the Catawba Education Trust Fund may not be 

2 transferred or used for any non-educational pur3 poses. 

4 (3) The dissolution of any Trust Fund shall re5 quire the approval of the Secretary pursuant to the 

6 Secretarial approval provisions set forth in sub7 section (b)(5)(D) of this section. 

8 (k) TRUST Fmm ACCOUNTING.-(1) The Secretary 

9 shall account to the Tribe periodically, and at least annu10 ally, for all Catawba Trust Funds being managed and ad11 ministered by the Secretary. The accounting shall12 (A) identify the assets in which the Trust 

13 Funds have been invested during the relevant period; 

14 (B) report income earned during the period, 

15 distinguishing current income and capital gains; 

16 (C) indicate dates and amounts of distributions 

17 to the Tribe, separately distinguishing current in18 come, accumulated income, and distributions of prin19 cipal; and 

20 (D) identify any mvasimis or repayments of 

21 principal during the relevant period and record pro22 \isions the Tribe has made for I'epa:vment or restora23 tion of principal. 

24 (2)(A) Any outside investl'nent management firm en25 gaged by the Tribe shall account to the Tribe and sepa-
51 

50 

1 rately to the Secretary at periodic intervals, at least quar2 terly. Its accountir.g shall3 (i) identify the assets in which the Trust Funds 

4 have been invested during the relevant period; 

5 (ii) report income earned during the period, 

6 separating current income and capital gains; 

7 (iii) indicate dates and amounts of distributions 

8 to the Tribe, distinguishing current income, accumu9 lated income, and distributions of principal; and 

10 (iv) identify any invasions or repayments of 

11 principal during the relevant period and record pro12 visions the Tribe has made for repayment or restora13 tion of principal. 

14 (B) Prior to distributing principal from any Trust 

15 Fund, the investment management firm shall notify the 

16 Secretary of the proposed distribution and the Tribe's pro17 posed use of such funds, following procedures to be agreed 

18 upon by the investment management firm, the Secretary, 

19 and the Tribe. The Secretary shall have 15 days within 

20 which to object in writing to any such invasion of prin21 cipal. Failure to object will be deemed approval of the dis22 tribution. 

23 (C) All Trust Funds held and managed by any invest24 ment management firm shall be audited annually by a cer25 tified public accounting firm approved by the Secretary, 
52 

51 

and a copy of the annual audit shall be submitted to the 

2 Tribe and to the Secretary within four months following 

3 the close of the Trust Funds's fiscal year. 

4 (I) REPLA E~IENT OF ll\VEST~IEKT .:\1ANAGEMENT 

5 Frmr AND l\lODIFICATlON OF lr\VEST~IEJ\"T :\'IANAGE:IIIENT 

6 PLAN.-The T1·ibe shall not rr~plaee the investment man7 agement firm appro\·ed by the SPc:rctary " ·ithout prior 

8 written notification to the Secretary and approval by the 

9 Secretary of any investment management firm chosen by 

10 the Tribe as a replacement. Such Secretarial approval 

11 shall be given or denied in accordanee with the Seeretarial 

12 approval provisions contained in subsection (b)(5)(D) of 

13 this section. The Tribe and its investment management 

14 firm shall also notify the Secretary in \\Titing of any revi15 sions in the investment management plan which materially 

16 increase investment r·isk or signifieantly change the invest17 mcnt management plan, or thf' agreement, made in eon18 sultation with the Secretary pursuant to \Yhich the outside 

19 management finn was retained. 

20 (m) Tm..·sT F n.: ns :\'oT C'oc:-.:TED POH CERTAI!\ 

21 Pt:RPOSES; USE AS .:\L~'l'CH!l'\G Ft::.:ns.-~ e of tlw 

22 funds, assets, i1rconw, paJ1Uents, or distributions from the 

23 trust funds established plii'Sllant to this Sl'l'tion (e;.;cept 

24 funds distributed fr·om tir e Cat;mba Per Cnpita Trust 

25 Fund) shall at nny time affect tire eligibility ol' the Tribe 
sa· 

52 

1 or its Members for, or be used as a basis for denying or 

2 reducing funds to the Tribe or its Members under any 

3 Federal, State, or local program. Distributions from these 

4 Trust Funds may be used as matching funds, where ap5 propriate, for Federal grants or loans. 

6 SEC. 14. ESTABLISHMENT OF EXPANDED RESERVATION. 

7 (a) EXISTING RESERVATION.-The State, after ob8 taining any necessary judicial approval, shall convey the 

9 Existing Reservation to the United States as trustee for 

10 the Tribe, and the obligation of the State as trustee for 

11 the Tribe with respect to this land shall cease. 

12 (b) EXPANDED RESERVATION.-(1) The Secretary, 

13 in consultation with the Tribe, shall develop an Expanded 

14 Reservation in the manner prescribed by the Settlement 

15 Agreement. 

16 (2) The Secretary, after consulting with the Tribe, 

17 shall engage a professional land planning firm and a reg18 istered land surveyor as provided in the Settlement Agree19 ment. The Secretary will bear the cost of all services ren20 dered by the surveyor and the planning firm. 

21 (3) After the effective date of this Act, the Secretary, 

22 in consultation with the Tribe, may identify, purchase, and 

23 place in Reservation status tracts of lands in the manner 

24 prescribed by the Settlement Agreement. 
54 

53 

1 ( 4) The Secretary shall bear the cost of all title ex2 aminations, preliminary subsurface soil investigations, and 

3 level one environmental audits to be performed on each 

4 parcel contemplated for purchase for the Expanded Res5 ervation, and shall report the results to the Tribe. Pay6 ment of any option fee and the purchase price shall be 

7 dravvn from the Catawba Land Acquisition Trust Fund. 

8 ( 5) The total area of the Expanded Reservation shall 

9 be limited to 3,000 acres, including the Existing Reserva10 tion, but the Tribe may exclude from this limit up to 600 

11 acres of additional land under the conditions set forth in 

12 the Settlement Agreement. The Tribe may seek to have 

13 the permissible area of the Expanded Reservation en14 larged by an additional GOO acres as set forth in the Set15 tlement Agreement. 

16 (G) All lands acquired by the Secretary for the Ex17 paneled Reservation will be held in trust together with the 

18 Existing Reservation which the State is to convey to the 

19 United States. 

20 (c) EXPAl\'SION ZO!\'ES.-(1) Subject to the condi21 tions, criteria, and procedures set forth in the Settlement 

22 Agreement, the Secretary and the Tribe shall endeavor at 

23 the outset to acquire r·.ontiguous tracts for the E"'-panded 

24 Reservation in the "Catawba Reservation Primary Expan25 sion Zone", as defined in the Settlement Agreement. 
55 

54 

(2) Subject to the conditions, criteria, and procedures 

2 set forth in the Settlement Agreement, the Secretary, in 

3 consultation with the Tribe, may elect to purchase contig4 uous tracts in an alternative area, the "Catawba Reserva5 tion Secondary Expansion Zone", as defined in the Settle6 ment Agreement. 

7 (3) The Tribe may propose different or additional ex8 pansion zones subject to the approval of the Secretary and 

9 to the additional authorizations required in the Settlement 

10 Agreement and the State implementing legislation. 

11 (d) NON-CONTIGUOUS TRACTS.-The Secretary, act12 ing on behalf of the Tribe, shall take such actions as are 

13 reasonable to expand the Existing Reservation by assem14 bling a composite tract of contiguous parcels that border 

15 and surround the Existing Reservation. Before placing 

16 any non-contiguous tract in Reservation status, the Tribe, 

17 in consultation with the Secretary, shall submit to the 

18 county council in any county where it proposes to purchase 

19 such non-contiguous tracts a Non-Contiguous Develop20 ment Plan Application, as provided by the Settlement 

21 Agreement and the State implementing legislation. Upon 

22 the approval of any such application by each affected 

23 county council, the Secretary, in consultation with the 

24 Tribe, may proceed to place non-contiguous tracts in Res25 ervation status. No purchases of non-contiguous tracts 
56 

55 

shall be made for the Reservation except as set forth in 

2 the Settlement Agreement and the State implementing 

3 legislation. 

4 (e) VOLUNTARY LAND PURCHASES.-{!) The power 

5 of eminent domain shall not be used by the Secretary or 

6 any governmental authority in acquiring parcels of land 

7 for the benefit of the Tribe, whether or not the parcels 

8 are to be part of the Reservation. All such purchases shall 

9 be made only from willing sellers by voluntary conveyances 

10 subject to the terms of the Settlement Agreement. 

11 (2) Conveyances by private land owners to the Sec12 retary for the Expanded Reservation will be deemed, how13 ever, to be involuntary conversions within the meaning of 

14 section 1033 of the Internal Revenue Code of 1986. 

15 (3) Notwithstanding any other provision of this sec16 tion and the provisions of the first section of the Act of 

17 August 1, 1888 (eh. 728, 25 Stat. 357; 40 U.S.C. 257), 

18 and the first section of the Act of February 26, 1931 (ch. 

19 307, 46 Stat. 1421; 40 U.S.C. 258a), the Secretary may 

20 acquire Reservation land for the benefit of the Tribe from 

21 the ostensible owner of the land if the Secretary and the 

22 ostensible owner have agreed upon the identity of the land 

23 to be sold and upon the purchase price and other terms 

24 of sale. If the ostensible owner agrees to the sale, the Sec25 retary may use condemnation proceedings to perfect or 
57 

56 

clear title and to acquire any interests of putative co-ten2 ants whose address is unknown or the interests of un3 known or unborn heirs or persons subject to mental dis4 ability. 

5 (f) TERMS AND CONDITIONS OF ACQUISITION.-All 

6 properties acqui1-ed by the Secretary for the Tribe shall 

7 be acquired in fee simple subject to the terms and condi8 tions set forth in the Settlement Agreement. The See9 retary, acting on behalf of the Tribe and with its consent, 

10 is also authorized to acquire Reservation and non-Reserva11 tion lands using the methods of financing described in the 

12 Settlement Agreement. 

13 (g) A UTHORITY TO ERECT PERMANENT lMPROVE14 MENTS ON EJ\.'lSTING AND EXPANDED RESERVATION 

15 LAND AND NON-RgSERVATION LAND HELD IN TRUST._:_ 

16 Notwithstanding any other pi"Ovision of law or regulation, 

17 the Attorney General of the U nitcd States shall approve 

18 any deed or other instrument which conveys to the United 

19 States lands purchased pursuant to the provisions of this 

20 section and the Settlement Agreement. The Secretary or 

21 the Tribe may erect permanent improvements of a sub22 stantial value, or any other improvements authorized by 

23 law on such land afte1· such land is conveyed to the United 

24 States. 
58 

57 

1 (h) EASE.I\IENTS OVER RESERVATION.-(1) The ac2 quisition of lands for the Expanded Reservation shall not 

3 extinguish any easements or rights-of-way then encumber4 ing such lands unless the Secretary or the Tribe enters 

5 into a \vTitten agreement with the owners terminating such 

6 easements or rights-of-way. 

7 (2)(A) The Secretary, with the approval of the Tribe, 

8 shall have the power to grant or convey easements and 

9 rights-of-way, in a manner consistent with the Settlement 

10 Agreement. 

11 (B) Unless the Tribe and the State agree upon a 

12 valuation formula for pricing easements over the Reserva13 tion, the Secretary shall be subject to proceedings for con14 demnation and eminent domain to acquire easements and 

15 rights of way for public purposes through the Reservation 

16 under the laws of the State in circumstances where no 

17 other reasonable access is available. 

18 (C) With the approYal of the Tribe, the Secretary 

19 may also grant easements or rights-of-way over the Res20 ervation for private purposes, and implied easements of 

21 necessity shall apply to all lands acquired by the Tribe, 

22 unless expressly excluded by the parties. 

23 (i) JlJRISDICTIOKAL STA'l'lJS.-Only land made part 

24 of the Hesenration shall be goyerned by the special juris-
59 

58 

1 dictional provisions set forth in this Act and the Scttle2 ment Agreement. 

3 (j) SALE AND TRANSFER OF RESERVATION 

4 LANos.-At the request of the Tribe, and with approval 

5 of the Secretary, the Secretary may sell, exchange, or lease 

6 lands within the Resm-vation, and sell timber or other nat7 ural resources on the Reservation under circumstances 

8 and in the manner prescribed by the Settlement Agree9 ment. 

10 (k) TIME LIMIT ON ACQUISITIONS.-All acquisitions 

11 of contiguous land to expand the Reservation or of non12 contiguous lands to be placed in Reservation status shall 

13 be completed or under contract of purchase within 10 

14 years from the date the last payment is made into the 

15 Land Acquisition Trust; except that for a period of 20 

16 years after the date the last payment is made into the 

17 Catawba Land Acquisition Trust Fund, the Tribe may, 

18 subject to the limitation on the total size of the Reserva19 tion, continue to add parcels to up to two Reservation 

20 areas so long as the parcels acquired arc contiguous to 

21 one of those two Reservation areas. 

22 (I) LEASES OF RESERVATION LANDS.-The provi23 sions of the first section of the Act of August 9, 1955 

24 (ch. 615, 69 Stat. 539; 25 U.S.C. 415) shall not apply 

25 to the Tribe and its Reservation. The Tribe shall be au-
60 

59 

1 thorized to lease its Reservation lands for terms up to but 

2 not exceeding 99 years. 

3 (m) NON-APPLICABILI1'Y OP BIA LAND ACQUISI'riON 

4 REGULATIONS.-The general land acquisition regulations 

5 of the Bureau of Indian Affairs, contained in part 151 

6 of title 25, Code of Federal Regulations, shall not apply 

7 to the acquisition of lands authorized by this section. 

8 SEC. 15. NON-RESERVATION PROPERTIES. 

9 (a) ACQUISITION OF NON-RESERVATION PROP10 ER'L'IES.-(1) The Tribe may draw upon the corpus or ac11 cumulated income of the Catawba Land Acquisition Trust 

12 Fund or the Catawba Economic Development Trust Fund 

13 to acquire and hold parcels of real estate outside the Res14 ervation for the purposes and in the manner delineated 

15 in the Settlement Agreement. 

16 (2) If the ownership of any such properties by the 

17 Secretary or the Tribe, or any sub-entity of the 'fribe, re18 suits in the removal of the property from ad valorem tax19 ation, then payments shall be made by the Tribe in lieu 

20 of ta.xation that are equivalent to the taxes that would oth21 envise be paid if the property were subject to levy. 

22 (3) Notwithstanding any other provision of Jaw, the 

23 Tribe may lease, sell, mortgage, restrict, encumber, or oth24 envise dispose of such non-Reservation lands in the same 

25 manner as other persons and entities under State Jaw, and 

oHR 2399 IH 
61 

60 

1 the Tribe as land owner shall be subject to the same obli2 gations and responsibilities as other persons and entities 

3 under State, Federal, and local law. 

4 (4) Ownership and transfer of non-Reservation par5 eels shall not be subject to Federal law restrictions on 

6 alienation, including (but not limited to) the restrictions 

7 imposed by Federal common law and the provisions of the 

8 section 2116 of the Revised Statutes (25 U.S.C. 177). 

9 (b) JURISDICTION ON NON-RESERVATION PROP10 ERTIES.-( 1) All non-Reservation properties, including 

11 such properties held by the Tribe as a corporate entity 

12 and such properties held in tmst by the United States, 

13 and all activities conducted on such properties, shall be 

14 subject to the laws, ordinances, taxes, and regulations of 

15 the State and its political subdivisions in the same manner 

16 as such laws, ordinances, taxes, and regulations would 

17 apply to any other properties held by non-Indians in the 

18 same jurisdiction, except as provided in section 16 of this 

19 Act. 

20 {2) Activities on non-Reservation land shall be eligible 

21 for Federal grants and other Federal services for the bene22 fit of Indians. 
62 

61 

1 SEC. 16. GAMES OF CHANCE. 

2 (a) INAPPLICABILITY OF INDIAN GAMING REGU3 LATORY AcT.-The Indian Gaming Regulatory Act (25 

4 U.S.C. 2701 et seq.) shall not apply to the Tribe. 

5 (b) GAMES OF CHANCE GENERALLY.-The Tribe 

6 shall have the rights and responsibilities set forth in the 

7 Settlement Agreement and the State implementing legisla8 tion \\ith respect to the conduct of games of chance. Ex9 cept as specifically set forth in the Settlement Agreement, 

10 the State implementing legislation, and this Act, all laws, 

11 ordinances, and regulations of the State, and its political 

12 subdivisions, shall govern the regulation of gambling de13 vices and the conduct of gambling or wagering by the 

14 Tt·ibe on and off the Reservation. 

15 SEC. 17. GOVERNANCE AND REGULATION OF RESERVA16 TION. 

17 (a) El\TIRONliiE!'\TAL LAws.-(1) All Federal, State, 

18 and local environmental laws and regulations shall apply 

19 to the Tribe and to the Reservation, and shall be fully 

20 enforceable by all Federal, State, and local agencies and 

21 authorities. Similarly, all requirements that a license, per22 mit, or certificate be obtained from any Federal, State, 

23 or local agency shall also apply to the Tribe and to the 

24 Reservation. This provision shall extend without limitation 

25 to all environmental laws and t·egulations adopted after 

26 the date of enactment of this Act. 
63 

62 

(2) The Tribe, the Executive Committee, and all 

2 Members shall have the same--and no special or pref3 erential-status under all such laws as other individuals 

4 or groups of individuals to contest, object to, or intervene 

5 in any proceeding or action in which environmental regula6 tions are being made, adjudicated, or enforced, or in which 

7 licenses, permits, or certificates of convenience and neces8 sity are being issued by any agency of Federal, State, or 

9 local government. 

10 (3) The Tribe shall have the authority to impose reg11 ulations applying higher environmental standards to the 

12 Reservation than those imposed by Federal or State law 

13 or by local governing bodies; but such tribal regulations 

14 shall apply only to the Reservation, and not to property 

15 surrounding the Reservation or non-Reservation property, 

16 or to the use of the Catawba River. Such tribal regulations 

17 shall not apply to activities or uses off the Reservation, 

18 even if those activities affect air quality on the Reserva19 tion. 

20 ( 4) The Tribe shall not be authorized to invoke sov21 ereign immunity against any suit, proceeding, or environ22 mental enforcement action involving any Federal, State, 

23 or local environmental laws or regulations, and shall be 

24 subject to all enforcement orders, restraining orders, fees, 
64 

63 

fines, injunctions, judgments, and other corrective or re2 medial measures imposed by such laws. 

3 (5) This section shall not impose different standards 

4 or requirements on the Tribe or the Secretary, when actS ing on the Tribe's behalf, than would be applied to a pri6 vate corporation. 

7 (b) BUILDING CODE.-Thc Tribe shall incorporate by 

8 reference and adopt the York County Building Code, and 

9 any amendments thereto adopted after the date of enact10 mcnt of this Act, and may contract with York County, 

11 South Carolina, for the services necessary to enforce, in12 spect, and regulate compliance with its Building Code. 

13 Such services shall be provided by York County as pro14 ,;ded in the Settlement Agreement. In addition, those 

15 local jurisdictions which exact any fee, permit, or inspec16 tion services shall waive the fees otherwise charged for 

17 building permit or· inspection services on the Reser-vation. 

18 The Tribe may adopt building code provisions to be ap19 plied on the Reservation in addition to, but not in deroga20 tion of, the York County Building Code, as amended from 

21 time to time. 

22 (e) PLANNING AND ZONING.-With respect to any 

23 land use regulation within the Reser-vation, the Tribe shall 

24 have the power to adopt and enforce a land use plan after 

25 consultation with York County and lJancaster County, for 
65 

64 

those parts of the !Wservation located in those respective 

2 jurisdictions. The Tribe and the affected governing bodies 

3 shall follow the consultative procedures created for settle4 ment of the claim of the Puyallup Tribe in the State of 

5 Washington, as set out in House &port 101-57, pages 

6 161-64, of the 101st Congress. In determining whether 

7 to permit the construction of any buildings or improveS ments on the !Wservation, the Tribe shall consider9 ( 1) the protection of established or planned res10 idential areas from any use or development that 

11 would adversely affect residential living off the !Ws12 ervation; 

13 (2) protection of the health, safety, and welfare 

14 of the surrounding community; 

15 (3) preservation of open spaces, rivers, and 

16 streams; and 

17 ( 4) provision of public facilities to support de18 velopment. 

19 (d) HEALTH CODES.-All public health codes of the 

20 State and any county in which the !Wservation is located 

21 shall be applicable on the !Wservation. 

22 (e) HUNTING AND FISHING.-Subject to the provi23 sions of section 17.5 of the Settlement Agreement con24 cerning the acquisition of hunting and fishing licenses, 

25 hunting and fishing, on or off the !Wservation, shall be 
66 

65 

conducted by members in compliance with the laws and 

2 regulations of the State. 

3 (f) RIPARIAN RIGHTS.-(1) The littoral and riparian 

4 rights of the Tribe in the Catawba River, or in any other 

5 streams or waters crossing their lands, shall not differ in 

6 any 1·espect from the rights of other owners whose land 

7 abuts non-tidal bodies of water or non-tidal wate1· courses 

8 in South Carolina. The rights and obligations covered by 

9 this provision shall include, but not be limited to--

10 (A) the title to the river bed; 

11 (B) the right to flood, pond, dam, and divert 

12 waters to the river or its tributaries; 

13 (C) the right to build docks and piers m the 

14 l"iVCI'; 

15 (D) the right to fish m the river or its tribu16 taries; and 

17 (E) the right to discharge waste or withdraw 

18 water from the river or its tributaries. 

19 (2) The Tribe shall have the same right<> and stand20 ing as all other riparian owners and users of the Catawba 

21 River to intervene in any proceeding or otherwise to con22 test or object to proposed actions or determinations of the 

23 Federal Ene1·gy Regulatory Commission or of any other 

24 governmental agency, commission, or court, whether Fed25 cral, State, or local, with respect to the usc of the Catawba 
67 

66 

River and its basin, including (without limitation) with2 drawal of water from the river; navigability on the river; 

3 and water power and hydroelectric usage of the river. 

4 (3) Notwithstanding any other provision of law effec5 tive now or adopted after the date of enactment of this 

6 Act, the Tribe shall have no special right or preferential 

7 standing greater than other riparian owners and users of 

8 the Catawba River to intervene in or contest any such 

9 agency action, determination, or proceeding, including 

I 0 specifically any actions or determinations by the Federal 

II Energy Regulatory Commission regarding the licensing, 

I2 use, or operation of the waters impounded by the existing 

I3 reservoirs above and below the Reservation. These qualiI4 fications shall apply to the Existing Reservation, to lands 

I5 acquired for the Expanded Reservation, to other lands ac16 quired by or for the benefit of the Tribe, and to non-ResI7 ervation lands. 

I8 (g) ALCOHOLIC BEVERAGES.-Alcohol shall be pro19 hibited on the Reservation unless the Tribe adopts laws 

20 permitting the sale, possession, or consumption of alcohol 

21 on the Reservation consistent with the terms of the Settle22 ment Agreement. 

23 SEC. 18. TAXATION. 

24 (a) INDIAN TRIBAL GOVERNMENT TAX STATUS 

25 AcT.-Section 7871 of the Internal Revenue Code of 1986 
68 

67 

(26 U.S.C. 7871 ; commonly referred to as the "Indian 

2 Tribal Government Tax Status Act) shall apply to the 

3 Tribe and its Reservation. In no event, however, may the 

4 Tribe pledge or hypothecate the income or principal of the 

5 Catawba Education or Social Services and Elderly Trust 

6 Funds or otherwise use them as security or a source of 

7 payment for bonds the Tribe may issue. 

8 (b) GENERAL TAX l.;IABILITY.-The Tribe, its Mem9 hers, the Tribal Trust Funds, and any other persons or 

10 entities affiliated \\ith or owned by the Tribe, Members, 

11 or the Tribal Trust Funds, whether resident or loeated 

12 or doing business on the Reservation or off the Reserva13 tion, shall be subject to all Federal, State, and local taxes, 

14 licenses, levies, and fees except as expressly provided in 

15 this section or in the State implementing legislation. Any 

16 other person or business entity which locates, operates, or 

17 docs business on the Reservation shall be subject without 

18 exception to all r'edcral, State, and local taxes, lieenses, 

19 and fees, unless otherwise expressly provided in this see20 tion. To the extent that the Tribe may be subject to any 

21 taxes under this section, the Tribe shall be taxed as if it 

22 were a business corporation irworporatcd under the laws 

23 of South Carolina unless otherwise expressly provided. 

24 (c) TAA ..ES OK GA;\IES OF CIIAKCJ<; .-( 1) If the Tribe 

25 elects to sponsor and conduct games of bingo uruh r· the 
69 

68 

provisions of section 16 of this Act, no Federal, State, or 

2 local ta.xes shall apply to the Tribe's bingo revenues except 

3 for the special bingo tax provided in the State implement4 ing legislation. If the Tribe elects to sponsor and conduct 

5 games of bingo under a regular license allowed non-profit 

6 organizations under the State's Bingo Act (Title 12, 

7 Chapter 21, Article 23, South Carolina Code of Laws, 

8 1976), the Tribe shall be taxed as a non-profit corporation 

9 under that Act with respect to all revenues generated from 

I 0 the bingo games. 

II (2) Should the Tribe obtain a license to operate elecI2 tronic play devices as provided by the State implementing 

I3 legislation, the Tribe shall be subject to all taxes, license 

I4 requirements and fees governing electronic play devices 

I5 provided by State law. 

I6 (d) IKCO:.\IE TAXES.-(1) Income of the Tribe, sub17 divisions and governmental agencies of the Tribe, includ18 ing entities owned by the Tribe or the Federal Government 

19 and the Tribal Trust Funds, and tax revenues collected 

20 by the Tribe by levy or assessment, shall be non-taxable 

21 for Federal income tax purposes to the extent provided 

22 by Federal law for recognized or restored Indian Tribes. 

23 Any tribal income and tax revenues which are non-taxable 

24 for Federal income tax purposes because of the Tribe's 

25 status as a recognized or restored Indian Tribe shall also 
70 

69 

be non-ta.xable for purposes of State income ta.xes and 

2 local income taxes. 

3 (2)(A) Except as provided in this subsection, Mcm4 hers shall be liable for payment of Federal, State, and 

5 local income taxes to the same extent as any other person 

6 in the State. 

7 (B) Income earned by Membe1·s for work performing 

8 governmental functions solely on the Reservation shall be 

9 exempt from State taxes for a period of 99 years after 

10 the effective date of this Act. 

11 (C) Income earned by Members from the sale of Ca12 tawba Indian pottery and artifacts, whether on or off the 

13 Reservation, which are made by Members, shall be exempt 

14 from Federal, State, and local income taxes. 

15 (D) Fo1· purposes of Federal income taxes, the in16 come of Membe1·s earned on the Reservation shall be tax17 able to the extent provided by Federal law for members 

18 of recognized OJ' 1·estored Indian tribes. 

19 (E) No funds distributed per capita pursuant to sec20 tion 13(h) of this Act shall be subject at the time of dis21 tribution to Federal, State, and local income taxes; how22 ever, income subsequently earned on shares distributed to 

23 Members shall be subject to the same Fedeml, State, and 

24 local income taxes as other persons in the State would pay. 
71 

70 

1 (F) Compensation paid to members of the Executive 

2 Committee shall be subject to Federal payroll taxes to the 

3 extent provided by Federal law for members of tribal coun4 cils of recognized or restored Indian tribes. 

5 ( 3) Any person or other entity which is not exempt 

6 from income taxes under provisions of this section shall 

7 be liable for all Federal, State, and local income taxes oth8 erwise due regardless of whether they are doing business 

9 on the Reservation. 

10 (e) REAL PROPERTY TAXES.-(1) The Reservation 

11 and all non-residential buildings, fixtures, and real prop12 erty improvements owned by the Tribe or held in trust 

13 by the United States for the Tribe on the Reservation shall 

14 be exempt from all property taxes levied by the State or 

15 by any political subdivision of the State. If the Tribe owns 

16 a partial interest in property or a business, the property 

17 tax exemption provided in this section is applicable to the 

18 extent of the Tribe's interest. 

19 (2) Single and multi-family residences, including mo20 bile homes, that are situated on the Reservation shall be 

21 exempt from all property taxes levied by the State or by 

22 any political subdivision of the State, if they are owned 

23 by the Tribe, Members, or Tribal Trust Funds and meet 

24 the requirements of the State implementing act concerning 
72 

71 

the ownership and occupation of single and multifamily 

2 residences. 

3 (3) All buildings, fixtures, and real property improve4 ments located on the Reservation which arc not exempt 

5 from real property ta..xes under subsections (e)(l) and 

6 (c)(2) of this section, shall be subject to all property ta..xes 

7 levied by the State or any political subdivision of the State 

8 to the same extent that similar buildings, fixtures, or im9 provcments are assessed and taxed elsewhere in the same 

10 jurisdiction. However, the underlying land or leasehold in 

11 the land shall not be subject to real property ta..xes. All 

12 buildings, fLxtures, and improvements subject to real prop13 crty ta..xes shall be eligible for any tax abatement or tem14 porary exemption allowed new business investments to the 

15 same extent as similar properties quality for exemption or 

16 abatement in the same county. 

17 ( 4) The Tribe is authorized to levy taxes on buildings, 

18 fixtures, improvements, and personal property located on 

19 the Reservation, even though such pr·operties may be ex20 erupt from pr·operty ta..xation by the State or its subdivi21 sions, and may use such tax revenues for appropriate trib22 al purposes. The Tribe may also exempt or abate any such 

23 ta..xes. York and l.;ancaster Counties and the South Caro24 !ina Ta..x Commission will provide in accordance with the 

25 Settlement Agreement the necessary assistance to the 
73 

72 

1 Tribe if the Tribe chooses to assess tribal property taxes 

2 as if they were property ta.'i:es imposed by a political sub3 division. 

4 ( 5) Real property and improvements owned by the 

5 Tribe or Members, or both, and not located on the Res6 ervation shall be subject to all property taxes levied by 

7 the State, the county, the school district, special purpose 

8 districts, and other political subdivisions where such prop9 erty is located. 

10 (6) To the extent that any non-Reservation real prop11 erty held in trust by the Secretary is not taxable for prop12 erty ta.x purposes, it shall be subject to the payment of 

13 a fee or fees in an amount equivalent to the real property 

14 ta.'i: that would have been paid to the applicable taxing au15 thority had the property not been held in trust. 

16 (f) PERSONAL PROPERTY TAXES.-(1) For a period 

17 of 99 years after the effective date of this Act, all personal 

18 property owned by the Tribe and used solely on the Res19 ervation shall be exempt from personal property taxes. 

20 During such period motor vehicles owned by the Tribe 

21 shall be exempt from personal property taxes even if used 

22 off the Reservation. 

23 (2) All personal property owned by Members shall be 

24 subject to personal property ta.xes levied by the State or 
74 

73 

1 any political subdivision of the State where the property 

2 is deemed to be located. 

3 (3) All personal property located on the Reservation 

4 which is not exempt from personal property taxes under 

5 subsection (f)(l) of this section shall be subject to per6 sonal property taxes levied by the State or by any political 

7 subdivision of the State encompassing the Reservation to 

8 the same extent that similar personal property is assessed 

9 and ta."<ed elsewhere in the jurisdiction. 

10 (4) For purposes of subsections (e) and (f) of this 

11 section, the determination of whether the Tribe is the 

12 owner of property shall be made in the same manner as 

13 is used by the State for other taxpayers for State property 

14 ta.x purposes. 

15 (g) LEVY AG • .Ul\'ST PROPERTY FOR FAILURE TO PAY 

16 PROPERTY TA."TI:S.-(1) Subject to perfected security in17 terests, if any person or entity (referred to in this sub18 section as the "ta.\.-payer") who is subject to property ta."<es 

19 under subsections (e) and (f) of this section fails to pay 

20 such taxes, the appropriate taxing authority for the county 

21 or other political subdivision shall have the power to levy 

22 against personal property subject to personal property 

23 ta.'\":es O\med by the ta~-payer within the county, on or off 

24 the Reservation, in order to satisfy the ta.'\":es due. 
75 

74 

1 (2) If this levy against the personal property is not 

2 sufficient to satisfy the tax lien, the county or other politi3 cal subdivision may certify the deficiency to the State and 

4 the State may levy against other taxable property of the 

5 taxpayer in the State and remit any proceeds to the county 

6 or appropriate ta."-cing authority which is owed the tax. 

7 (3) If the county or other political subdivision cannot 

8 satisfy its lien, it may require the Tribe to cease allowing 

9 the taxpayer to do business on the Reservation. 

10 (4) If the ta.xpayer is in bankruptcy, the bankruptcy 

11 statutes shall apply to this section. 

12 (5) The State or any political subdivision may not 

13 seize real property located on the Reservation. 

14 (h) VEHICLE LICENSE FEES.-The Tribe and its 

15 Members shall be subject to all license and registration 

16 fees and requirements, all periodic inspection fees and re17 quirements, and all fuel ta.'(es imposed by Federal, State, 

18 and local governments on motor vehicles, boats, and air19 planes, and other means of conveyance. 

20 (i) SALES AND USE TAXES.-(1) The Tribe, its 

21 Members, and the Tribal Trust Funds shall be liable for 

22 the payment of all State and local sales and use taxes to 

23 the same e:\.ient as any other person or entity in the State, 

24 except as provided in this section. 
76 

75 

1 (2) Purchases made by the Tribe for tribal govern2 ment functions during the period of 99 years from the ef3 fective date of this Act shall be exempt from State and 

4 local sales and use taxes. 

5 (3) Catawba pottery and artifacts made by Members 

6 and sold on or off the Reservation by the Tribe or Mem7 bers shall be exempt from State and local sales and use 

8 tax. 

9 ( 4)(A) During the period of 99 years from the effec10 tive date of this Act, the sale on the Reservation of all 

II other items, whether made on or off the Reservation, shall 

12 be exempt from State and local sales and use taxes, but 

13 shall be subject to a special tribal sales tax levied by the 

I4 Tribe equal to the State and any local sales tax that would 

15 be levied in the jurisdiction encompassing the Reservation 

I6 but for this exemption. 

I7 (B) The South Carolina sales and use tax laws, reguI8 lations, and rulings shall apply to the special tribal sales 

I9 tax, and the special tribal sales tax must be administered 

20 and collected by the South Carolina Tax Commission in 

21 accordance \\ith the Settlement AgTeement. 

22 (C) In accordance with the Settlement A,o-reement, 

23 the South Carolina Tax Commission "ill separately ac24 count for the special tribal sales tax, and the State Treas-
77 

76 

1 urer will remit the special tribal sales tax revenues periodi2 cally to the Tribe at no cost to the Tribe. 

3 (D) The tribal sales ta.x shall not apply to retail sales 

4 occurring on the Reservation as a result of delivery from 

5 outside the Reservation when the gross proceeds of sale 

6 are $100 or less. In such case, the State sales tax shall 

7 apply. 

8 (E) The Tribe shall impose a tribal use tax on the 

9 storage, use, or other consumption on the Reservation of 

10 tangible personal property purchased at retail outside the 

11 State when the vendor does not collect the tax. However, 

12 any use taxes which are collected by a vendor which is 

13 not located in the State will be subject to State use taxes 

14 and the use ta.x shall be remitted to the State and not 

15 the Tribe. Use taxes not collected by the vendor and remit16 ted to the State shall be subject to the Tribal use tax and 

17 shall be collected directly by the Tribe. 

18 (j) PAYMENTS IN LIEU OF TAXES.-The Tribe shall 

19 pay a fee in lieu of school taxes. That fee shall be deter20 mined by the county or other appropriate taxing authority 

21 in the same manner and shall be the same amount that 

22 is paid by students from outside the county entering 

23 schools in the county. Fees payable by the Tribe shall be 

24 reduced by any funds received under the Act of September 

25 30, 1950 (Public Law 874, 81st Congress; 20 U.S.C. 236 
78 

77 

1 et seq.; commonly referred to as the "Impact Aid Act") 

2 pursuant to section 4(g) of this Act or any other Federal 

3 funds designed to compensate school districts for loss of 

4 revenue due to the non-taxability of Indian property. Any 

5 fee in lieu of school taxes paid on behalf of a child under 

6 this section shall be excluded from Federal and State in7 come of the child or his family for Federal and State in8 come tax purposes. 

9 (k) ESTATE TAXES.-Members shall be liable for 

10 payment for all estate and inheritance taxes, except, how11 ever, that the undistributed share of any member in the 

12 Catawba Per Capita Payment Trust Fund shall be exempt 

13 from Federal and State estate and inheritance taxes. 

14 (l) ELIGIBILITY FOR CONSIDERATION TO BECOME 

15 AN ENTERPRISE ZONE OR GENERAL PuRPOSE FOREIGN 

16 TRADE ZONE.-Notwithstanding the provisions of any 

17 other law or regulation, the Tribe shall be eligible to be18 come, sponsor and/or operate (1) an "enterprise zone" 

19 pursuant to 42 U.S.C. 11501-11505 or any other applica20 ble Federal (or State) laws or regulations; or (2) a "for21 eign-trade zone" or "subzone" pursuant to the Foreign 

22 Trade Zones Act of 1934, as amended (19 U.S.C. 81a23 81u) and the regulations thereunder, to the same extent 

24 .as other federally recognized Indian tribes. 
79 

78 

1 SEC. 19. GENERAL PROVISIONS. 

2 (a) GENERAL .APPLICABILITY OF STATE LAw.-The 

3 Tribe, its Members, and any lands, natural resources, or 

4 other property owned by the Tribe or its Members (includ5 ing any land or natural resources or other property held 

6 in trust by the United States or by any other person or 

7 entity for the Tribe) shall be subject to the civil, criminal, 

8 and regulatory jurisdiction of the State, its agencies and 

9 political subdivisions other than municipalities, and the 

10 civil and criminal jurisdiction of the courts of the State, 

11 to the same extent as any other person, citizen or land 

12 in the State except as otherwise expressly provided in this 

13 Act and by the State implementing legislation. 

14 (b) IMPACT OF SUBSEQUENTLY ENACTED LAws.-

15 The provisions of any Federal law enacted after the date 

16 of enactment of this Act shall not apply in the State if 

17 such provision would materially affect or preempt the ap18 plication of the laws of the State, including application 

19 of the laws of the State applicable to lands owned by or 

20 held in trust for Indians, or Indian Nations, tribes or 

21 bands of Indians. However, such Federal law shall apply 

22 within the State if the State grants its approval by a law 

23 or joint resolution enacted by the General Assembly of 

24 South Carolina and signed by the Governor. 

25 (c) SEVERABILITY.-If any of the provisions of sec26 tions 4(a), 5 or 6 of this Act are held invalid by a court, 
80 

79 

1 then all of this Act is invalid. Should any other aeetion 

2 of this Act be held invalid by a court, the remaining aee3 tions of this Act shall remain in full force and effect. 

4 (d) INTERPRETATION CONSISTENT WITH SETTLE5 MENT AGREEMENT.-Wherever possible, this Act shall be 

6 construed in a manner consistent with the Settlement 

7 Agreement. In the event of a conflict between the provi8 sions of this Act and the Settlement Agreement, the terms 

9 of this Act shall govern. The Settlement Agreement shall 

10 be maintained on tile and available for public inspection 

11 at the Department of the Interior. 

12 SEC. 20. EFFECTIVE DATE. 

13 The provisions of this Act shall become effective upon 

14 the transfer of the Existing Reservation to the Secretary. 

0 
81 

BACKGROUND ON H.R. 1399 

On November 10, 1763, in a Treaty at Augusta, Georgia, the Catawba Tnbe sought 

and was guaranteed protection from the onslaught of white settlement. In return for an 

agreement by the King of England and the Governors of the Southern Colonies that the 

Tribe would be forever protected in possession of its lands, the Tnbe reserved a 144,000 

acre tract and ceded its aboriginal territory (comprising much of the present state of North 

and South Carolina) to the King. But in 1840, the State of South Carolina took the Tnbe's 

lands, attempting to extinguish forever the Catawba Tnbe's title to the 144,000 acre 

Reservation through a "treaty" in which the United States did not participate. 

The State did not honor the terms of the "treaty". And because federal law has, since 

1790, plainly stated that only Congress may extinguish Indian title to land, the Tnbe's 

dispossession by the State of South Carolina has precipitated a political and legal struggle 

that has spanned a century and a half. 

In 1943, the United States entered into an agreement with the Catawba Tnbe and 

the State of South Carolina to provide services to the Tnbe and its members. The State 

purchased 3,434 acre of land and conveyed it to the Secretary in trust for the Tnbe and the 

Tnbe organized under the Indian Reorganization Act. 

In 1959, Congress enacted the Catawba Tnbe of South Carolina Division of Assets 

Act. Federal agents assured the Tnbe that if the Tnbe would release the government from 

its obligation under the 1943 agreement and agree to Federal legislation terminating the 

federal trust relationship and liquidating the 1943 reservation, the status of the Tnbe's land 

claim would not be jeopardized by the termination. 

In 1980, foUowing the failure of a four -year effort to settle the claim without resorting 

to litigation, the Catawba Tnbe sued 76 individuals and corporations seeking a return of the 

Treaty Reservation and trespass damages. The Defendants were sued as representatives of 

the tens of thousands of non-Indians who currently occupied the Tnbe's Treaty Reservation. 

In 1992, the federal courts refused to allow the case to proceed as a class action. 

This refusal started the running of a statute of limitations and left the Tnbe no choice but 

to sue each occupant of the Treaty Reservation individually. In the Spring and Summer of 

1992, as the Tnbe finalized its preparations to sue 61,767 individuals for possession of the 

land they occupied before the October 18, 1992 deadline, the need for a legislative solution 

became more apparent to both the Indian and non-Indian communities in and around Rock 

Hill. The filing of such a lllllllive lawsuit would have placed a cloud on virtually all land 

titles in the area. 

To give the settlement process more time, Congress, in July, 1992, extended the 

statute of limitations until October 1, 1993. In August, 1992, the Tnbe and state negotiators 

made substantial progress toward an agreement to settle the claim. Based on the hope that 

a just settlement might at last be possible, the Tnbe voted unanimously to rely on the 
82 

Congressional statute of limitations extension and postpone filing suit against the 61,767 

occupants. Settlement talks aimed at finalizing the agreement continued, and in the early 

morning hours of January 12, the negotiators finalized an Agreement in Principle. On 

February 20, 1993, the Catawba Tnbe met in General Council and overwhelmingly approved 

the proposed agreement 

H. R. 2399 is the measure which would enact the terms of the agreement between 

the State of South Carolina and the Catawba Tnbe into law. The bill restores the Catawba 

tnbe to full federal recognition. It provides that the existing state reservation would be 

expanded to a 4,200 acre federal reservation. The bill requires the United States to pay the 

Catawba Tnbe $32 million over .5 years. State, Iocal and private sources are required to pay 

the Tnbe $18 million. in exchange, the Tnbe agrees that its 1840 land claim arising out of 

the treaty of Nation ford will be extinguiabed along with any claims arising out of the 17~ 

Treaty, the 1763 Treaty or aboriginal title claims. 

The Tnbe asserts that if the settlement is not approved by the Congress, it will be 

forced to sue 61,767 pei'IOns individually who presently claim ownership over the Tnbe's 

144,000 acre-reservation. 

2 
83 

SECI10N-BY-SECI10N ANALYSIS OF H.R. 1399 

SEcnON 1. SHORT 1T1LE 

Section 1 cites the Act as the "Catawba lndian Tnbe of South Carolina Land Qaims 

Settlement Act of 1993". 

SECI10N l. DECLARATION OF POLICY, CONGRESSIONAL FINDINGS AND 

PURPOSE 

Section 2 declares the policy of the Congress. 

Subsection (a) provides the FindingJ of the Congress which delineates the history of the 

Catawba land claim. 

Subsection (b) provides the Purpose of the Act which are to (1) ratify the Settlement 

agreement between the tnbe and the non-Indian parties; (2) direct the Secretary to 

implement the Agreement; (3) authorize appropriations and actions; (4) remove the cloud 

on South Carolina land titles resulting from the Catawba's claim. 

SECI10N 3. DEFIN1110NS 

Section 3 provides the definitions of various terms used under the Act. 

SECI10N 4. RESTORA110N OF FEDERAL TRUST RELATIONSHIP 

Subsection (a) provides for the restoration of the Federal trust relationship between 

the Catawba tnbe and the United States. 

Subsection (b) makes the Catawba tnbe eligible for federal benefits and services 

which flow to recognized Indian tnbes. 

Subsection (c) provides that the lndian Health Service is to issue health cards to tnbal 

membeR who may cboolc health facilitiea subject to the approval of DiS. 

Subsection (d) repeals the Catawba Termination Act. 

Subsection (e) provides that the Act is not to affect existing property ri&hts. 

Sublection (f) provides that the jurisdiction of the tnbe ia set forth in this Act. 

Subsection (g) provides that schoola are to be eligible for impact aid funds. 
84 

SECTION S. SEITLEMENT FUNDS 

Subsection (a) authorizes to be appropriated $32 million of federal funds. 

Subsection (b) provides that the federal funds are to be disbursed in five installments 

of $6.4 million. 

Subsection (c) provides that private funds which are paid for the settlement are to 

be treated as either a payment in settlement of litigation or a charitable contribution for 

Federal tax purposes. 

Subsection (d) provides that the Secretary is to collect $18 million in contributions 

toward settlement received by the State 

and hold them in trust for the tnbe. 

SECTION 6. RATIFICATION OF PRIOR TRANSFERS; EXTINGUISHMENT OF 

ABORIGINAL TITLE, RIGHTS AND CLAIMS 

Subsection (a) provides that prior transfers of land or natural resources by the Tribe 

are ratified. 

Subsection (b) provides that any aboriginal title claims are extinguished. 

Subsection (c) provides that all claims pursuant to land or natural resources transfers 

by the Tnbe against the United States or any State are deemed to be extinguished as of the 

date of the transfer. 

Subsection (d) provides that all land title claims by the tnbe are extinguished, and 

that any hunting, fishing, water rights or other natural resource claims are extinguished. 

Subsection (e) provides that the United States is barred from asserting claims on 

behalf of the Tnbe arising before the date of enactment. 

Subsection (f) provides that the Section is not to be construed to diminish the existing 

reservation of fee lands owned by members. 

Subsection (g) provides that parties to the suit are to pay their own attorney's fees, 

but the Secretary is to approve and pay the Tnbe's attorneys in an amount not to exceed 

$5 million. 

Subsection (h) provides that personal claims of individual Indians are not affected by 

the Act. 

2 
85 

SEC110N 7. TRIBAL MEMBERSHIP 

Subsection (a) provides for the membership criteria of the tribe which shall be based 

on: 1) being listed on the 1961 membership roll; 2) if the Executive Committee determines 

that a penon should have been on the 1961 roll; 3) if a penon is a lineal descendant of 

someone on the membership roll. 

Subsection (b) provides that the tribe shall update its membership roll and exclude 

persons listed erroneously. 

Subsection (c) provides that the SecretaJy is to publish the rolls in the federal register. 

Subsection (d) provides that within 120 days after publication, the SecretaJy shall 

publish a proposed final membership roU. Appeals are to be resolved within 90 days 

following publicatic n. 

Subsection (e) provides that the Tnbe shall have the right to determine future 

membership. 

SECI10N I. TRANSmONAL AND PROVISIONAL GOVERNMENT 

Subsection (a) provides that the Tnbe shall adopt a constitution within 24 months 

of enactment. 

Subsection (b) provides that until the tnbe has adopted a constitution, the Executive 

Committee is the provisional government. 

SECI10N '· TRIBAL CONSTITU110N AND GOVERNANCE 

Subsection (a) provides that if the tnbe elects, it may organize under the Indian 

Reorganization Act. 

Subsection (b) provides that within 180 days after enactment, a constitution is to be 

drafted and distnbuted. Within 90 days of distnbution, an election to adopt the constitution 

must be held. 

Subsection (c) provides the constitution must be adopted by a majority vote. 

SECI10N lt. JURISDICDON AND GOVERNANCE OF THE RESERVATION 

Subsection (a) permits the Tnbe to regulate the conduct of its members, use and 

disposition of its property, to regulate conduct of non-member businesses or persons living 

or conducting business on the Reservation, and to exclude non-members from the 

Reservation. 

3 
86 

Subsection (b) provides that the Indian Civil Riabts Act shall apply to the Tnbe's 

reservation. 

SECI10N 11. CRIMINAL JURJSDICI10N 

Section 11 provides that South Carolina retains an criminal jurisdiction except that 

the Tnbe may have Court with jurisdiction limited to members, Reservation, and crimes 

within the jurisdiction of South Carolina's Mqistrates' Courts. Tnbal court jurisdiction is 

concurrent with Mqistrates' Courts and defendants can reJDOYC their cue to Mqistrates' 

Court or appeal to General Sessions Courts. Tbe bill requires the croa-deputization of 

peace ofticen. 

SECI10N U. CIVIL JURISDICI10N 

Subsection (a) provides that Tnbal civil court may have ori(Pna1 and appellate 

jurisdiction over: 

1. actions on contracts to which Tnbe a party, member a party and made on 

Reservation, or contract where more than SO%of services to be reDdered on Reservation 

which do not expressly exclude Tnbal court jurisdiction; 

2 actions in tort for intentional torts uDder South Carolina law is cause bodily injury 

or c1amaae to property, or negliaence or strict liability qcept for automobile ac:cidents on 

reservation; 

3. internal tnbal matters; 

4. domestic relations invoJvina members residins on Reservation; and, 

5. enforcement of business regulations applicable to businesses on Reservation. 

Subsection (b) provides that in several matters jurisdiction is concurrent with state 

courts. 

Subsection (c) provides that the Tnbe may waive Tnbal court jurisdiction. 

Subsection (d) provida that appeals lie to court in which could have been brought 

originally if matter eueedl amount of Mqistrates Courts' jurisdiction. 

Subsection (e) provides that full faith and credit applies only to judJements subject to 

appeal. 

Subsection (f) provides that the Tnbe has sovereip immunity similar to state for torts 

subject to requirement that they procure similar insurance. 

4 
87 

Subsection (g) provides that the Indian Child Welfare Act applies when Secretary 

approves. 

SECilON 13. TRIBAL TRUSI' FUNDS 

Section 13 provides for trust funds with an option to have them managed by outside 

manager. Funds include Land Acquisition Trust, Economic Development Trust Fund, 

Education Trust Fund, Social Services and Elderly Assistance Trust Fund, and Per Capita 

Trust Fund. Per Capita Trust Fund will distnbute $7,500,000 in one time payments to 

members. 

Payments from trust funds (other than original per capita payments) not counted for 

eligtbility for federal benefits. 

SECilON 14. ESTABUSHMENT OF EXPANDED RESERVATION 

Section 14 permits the acquisition of up to 3600 acres (not counting 600 

undevelopable acres) in defined area of York and Lancaster Counties. Purchases must be 

from willing sellers, but sellers can treat as involuntary conversions. 

SECilON 15. NON-RESERVATION PROPERTIES 

Section 15 provides that the Catawbas are free to acquire non-reservation properties, 

but obligated to make payments in lieu of taxes if acquisition removes property from tax 

rolls. 

SECilON 16. GAMES OF CHANCE 

Section 16 provides that the Indian Gamina Regulatory Act shall not apply. The 

Tnbe has the ability to establish two hi&b stakes bingo games under terms of state bill. One 

must be within claim area, the other requires approval of county and any municipality in 

which located. 

SECilON 17. GOVERNANCE OF RESERVATION 

Section 17 provides that all federal, atate and local environmental Jaws apply to 

reservation, and the Tnbe has no special status. The building code is the same as York 

County, but can be more stringent. Planning and zoning require consultative procedures 

described in the Puyallup bill The Tnbe and its members are subject to state hunting and 

fishing regulations. Alcohol is prohibited unleu the Tnbe permits it. 

5 
88 

SECI'IONll. TAXA DON 

Section 18 provides that the Indian Tnbal Government Tax Status Act applies. The 

Tn"be il aenerally subject to federal, state and local tax unlea exempted by the Act. State 

taxes on pmea of chance il 10%. The Tn"be's income ia non-taxable to extent non-taxable 

for recqpUzed ttibel. Memben are Hable for taxes to IIUDe extent u other citizens of the 

state, with exc:cptiona for memben worJDnc on Reservation, or enpaed in sale of pottery. 

Real property on resemation exempt from taxes to extent owned by Tn"be. Residences are 

exempt to the extent tbey are occ:upied by memben. Tbe Tn"be il required to make 

payment to school districts for students atteJidina. Memben are Hable for penonal property 

taxes. 

Tbe resemation il eliiJble for special status • Enterprise or Foreip Trade zone. 

GENERAL PROVISIONS 

Section 19 provides that State law il aenerally applicable. Sublequent aenerallawl 

preemptina state jurisdiction are not applicable to the Catawba Tn"be or the State of South 

Carolina unlea the State COIIIelltS. Tbe entire biD is invalid if the eztinauisbment proviliona 

or the restoration pnwisioaa are invalidated. 

UIECnVE DATE 

Section 20 provides that the Act abaiJ become effecdve upon the tnmlfer of the 

Existina Reservation to the Sec:retuy. 

6 
89 

Mr. RICHARDSON. At this time, I would ask witnesses, except for 

Chairman Spratt, to summarize their statements. They are reminded their full written statements will be made part of the 

record, which will be kept open for two weeks. 

Before I ask Chairman Spratt to open the hearing, let me first 

commend him for the valiant effort he has led to resolve this issue. 

He has been incessant and persistent in making sure we deal with 

this issue at this Subcommittee. 

Let me say at the outset that this Subcommittee is committed to 

dealing with this issue in an expeditious manner, and we look forward to this hearing. We know there is urgency involved. 

Let me just thank my friend and colleague, the Chairman of a 

very key Armed Services subcommittee and a gracious friend of 

mine to open the hearing. Chairman Spratt, please proceed. 

STATEMENT OF HON. JOHN M. SPRATT, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF SOUTH CAROLINA 

Mr. SPRATT. Thank you very much. Mr. Chairman, I certainly 

won't try your patience with 37 pages of single-spaced testimony, 

but I appreciate the dispensation of not having to summarize my 

testimony. 

You noted that this bill was filed by Butler Derrick, and Butler 

Derrick has prepared testimony and submitted it for the record. If 

there is no objection, I would like to tender his testimony and ask 

that it be made part of the record. 

Mr. RICHARDSON. Without objection. 

[Prepared statement of Mr. Derrick follows:] 
90 

Statement of U . S . Representative Bu tler Derr ick 

Hearing on H. R. 2399 · The Catawba Indian Settlement Act 

House Subcommittee on Native American Affairs 

July 2, 1993 

Mr . Chairman, I am pleased to submit this testimony in support of H.R. 

2329, a bill I introduced to settle the Catawba Indian dispute . I want to 

thank you for agreeing to hold a hearing on this important bill . I regret an 

illness in my family prevents me from being in Washington and testifying in 

person and I appreciate the opportunity to provide testimony for the record. 

Let me begin by saying that I introduced this bill at the request of my 

colleague, Congressman John Spratt, whose district includes the entire claim 

area . Congressman Spratt was unable to introduce the bill because he is a 

named defendant in the law suit . 

H. R. 2329 will resolve, once and for all, a 150 year old claim by the 

Catawba Indians to 144,000 acres of land in York, Lancaster and possibly 

Chester Counties, South Carolina . Permit me to give a brief history of the 

claim. The Catawba& were granted this land by the King of Bngland in a 1760 

treaty and the tribe purported to sell it in 1840 to the State of south 

Carolina. The sale ·was never ratified by Congress, as required by the Indian 

Non -Intercourse Act; cooaequently, the Catawba& claim .the sale was invalid . 

Thus, the Catawba indiana have been pressing their claim to recover the land 

for well over a century . 

In 1980, after requests to the federal government were rebuffed, the 

tribe filed a suit in federal district court against the state of South 

carolina, the local governments and 77 named defendants . They demanded 

trespass damages and title to 140,000 acres of land. For thirteen years, this 

case has been bouncing back and forth between the District Court, Court of 

Appeals and the u.s. Supreme Court and no end to the litigation is in sight . 

Last summer, the tribe was concerned that a 20 year state statute of 

limitations would expire in October 1992. Consequently, they made 

preparations to sue 62,000 i nnocent landowners before the deadline . They had 

already printed 62 , 000 summonses and complaints which were sitting in a 

warehouse in Falls Church , Virginia . These suits, if filed, would have 

represented one of the largest suits in the. history of the federal civil court 

system . Fortunately, we were able to avoid this litigation disaster when 

Congress extended the statute of limitations for one year. But this statute 

expires again at the end of 1993 . 

Negotiations to settle the dispute began, in earnest , three years ago. 

They have been long, drawn out and contentious . on several occaeione, they 

almost broke apart . Finally, last August, the parties struck a deal. H.R. 

2329 and the companion state legislation embody the fruits of those efforts. 

All parties had to make significant compromises to reach an agreement . The 

Catawbas, the State of South Carolina, Congressman Spratt and Senators 

Hollings and Thurmond all support this legislation in its current form and 

oppose any changes to it. All of the parties realize that any changes to this 

legislation could easily unhinge the entire agreement. 
91 

- 2 -

H.R. 2329 contains several important provisions. First, it restores the 

Catawba& as a federally recognized tribe . Interestingly, the Catawba& are the 

last terminated tribe to be restored . In addition to the restoration, this 

bill wi ll provide $50 million to the tribe over five years . The federal 

government will pay 64t ($6 . 2 million over five years), the state will pay 

$12 . 5 million and local authorities and private sources will pay the balance . 

The compensation will be paid into five different trust funds . The 

legislation also grants the tribe limited sovereignty on a reservation whose 

size may reach 4,200 acres. 

It is true that my congressional district does not include the Catawba 

land claim. But I agreed to introduce this legislation, in ·part, because the 

settlement makes sense for the State of South Carolina and for the federal 

government. If this case is not settled, 62,000 innocent landowners will be 

sued . Bach would be forced to pay hundreds of dollars to la.Yera to defend 

their title . They will be unable to sell their land, borrow against it or 

obtain title insurance until the litigation ends . Development in one of the 

fastest growing parts of South Carolina will be frozen . Because resolution of 

this claim is important to South Carolina, the State, local governments and 

private sources have agreed to pay $18 million to settle the claim. 

The federal government also has an important interest in settling the 

claim . The federal government does not want to see innocent landowners become 

victims to expensive and endless litigation . The merits of this caae are 

particularly compelling because the State of South Carolina will probably be 

dismissed from the suit . Most of the large landowners have already .been 

dismissed from the suit . That means the only remaining defendants are 

individuals owning very small parcels who can least afford the coat of 

litigation. Moreover, the federal government has pursued for the past decade 

a policy of restoring tribes Which Congress terminated in the 19408 and 1950s. 

The Catawba& are the last terminated tribe to have their trust relationship 

restored . 

Once again, I want to thank you Chairman Richardson for holding the 

hearing , and I urge swift approval of the bill. 
92 

Mr. SPRATT. Mr. Chairman, I want to thank you, not only on behalf of myself but on behalf of thousands of my constituents for 

holding today's hearing on H.R. 2399, which is the Catawba Indian 

settlement bill. 

To avoid literally 61,676 lawsuits against innocent landowners in 

my district this October, H.R. 2399 needs to become law before 

Congress ends this session. I am grateful for your willingness to, 

as you put it, act expeditiously. 

At the outset, Mr. Chairman, I need to state that I am a landowner in the claim area, and not only am I a landowner but I am 

one of 77 defendants named in the lawsuit, Catawba Indian Tribe 

of South Carolina versus the State of South Carolina, et al., docketed as civil action 802050 in the U.S. District Court for the District of South Carolina. 

Along with other named defendants in this suit, I moved for 

summary judgment. The District Court granted my request for 

summary judgment and issued an order releasing all of my land 

from the suit. The Fourth Circuit Court of Appeals sustained the 

district court as to all but about 90 acres of the land I own. Because of this remaining interest I have in the lawsuit, the court required that I, on remand, make a further showing as to the status 

of title of the 90 acres. 

Because of this remaining interest, I have sought the guidance 

and advice of the House Committee on Standards of Official Conduct, literally from the very outset of this matter, so that I am conducting myself properly. The Committee has told me that I should 

not introduce this settlement legislation. Hence, it was introduced 

by Congressman Butler Derrick. But they have told me that I may 

testify and speak about it so long as I disclose my interest. Part of the reason the Committee allowed me to testify and 

speak and work for settlement of this lawsuit is that it is critically 

important to my constituents. The Federal Government is essential 

to any settlement. And I as a Congressman from this district, 

knowing what I do of the claim believe that I am an essential participant in the settlement effort. The Congressman from this district, my predecessor, Ken Holland, took the same position. I have 

to be involved in this matter. 

The Committee has allowed me to take this position as long as 

I disclose my interest and refrain from voting on the bill itself. So 

you should have note of my interest. 

This bill will settle a land claim outstanding for more than 150 

years and a lawsuit brought by the Catawbas which has been 

pending for more than 13 years. The bill will grant Catawbas Federal recognition as an Indian tribe and restore a relationship with 

the tribe which Congress terminated in 1962. 

This settlement, Mr. Chairman, has not come easily. For the past 

four years we have engaged in long, hard and sometimes contentious negotiations. This bill, H.R. 2399, is the fruit of our labor. It 

is supported by the tribe, by the State of South Carolina, by York 

and Lancaster County where the claim area principally lies, by 

Senator Hollings and Senator Thurmond, by the Native American 

Rights Fund, and by the National Congress of American Indians. The agreement in principle which embodies the settlement was 

basically formulated last August, the end of August. So the settle-
93 

ment was reviewed by Secretary of the Interior Manny Lujan, approved by him-in fact, he issued a press release supporting itand we will offer that to the clerk to be made a part of the record 

in this hearing. 

[The memorandum of cooperation follows:] 

• 
94 

MEMORANDL~ OF COOPERATION 

The signatories to this Memorandum of Cooperation represent 

the Gover nor and General Assembly of South Carolina, the Member 

of Congress repres e nting the Fifth Congressional District of 

South Carolina, and the Catawba Indian Tribe of So uth Carolina. 

Each subscribes his n ame below in order to indicate agreement and 

commitment to the following: 

1. Beginning nearly four years ago, the undersigned 

assumed responsibility for settling the long-standing claim of 

the Catawba Indian Tri be to some 140,000 acres of land in York, 

Lancaster, and Chester Counties, and the suit pending in the 

United States District Court f o r the District of South Carolina 

ent itled the ~t:_~p.2 __ l.D9_ia!!_ __ ']"£~12.E! _g_f_ South f~rolin'!, Inc. v. Sta te of South Carolina, et al, docketed as Civil Action No. ao =-ios-o. ---------- --- ---- ---- ----

2 . To that end , the undersigned engaged in l e ngthy 

negotiati ons , culminating i n a s ession of more than a week in 

August 1992. The results o f those negotiations were memorialized 

in document entitled "Agree ment in Principle," consisting of 

appr o ximately fifty pages. The basic elements of this Agreement 

in Principle were approved by a mee ting of the Catawba Indian 

Tribe of South Carolina on August 27, 1992. The undersigned 

agreed to use their "good offices and best efforts" to carry out 

the Agreement in Principle, but r ecognized that it could only be 

effectuated through the enactment of State and Federal 

impl ementing laws. 

3. Following the negotiating session of August 1992, 

discu ssions to refine and extend the terms of settlement 

continued. Attorneys and advisors to the Catawbas identified 

prov isions of the Agre eme nt requiring revision. State gaming 

laws were reviewed by the Supreme Court of South Carolina and 

amendments to state gaming laws came under active consideration 

in the Ge neral Assembly . 

• 4 . A final negotiating session was convened in January 

1993. At the end of five days, the negotiations resulted in a 

revised "Agreement in Principle," which was approved by the 

Catawba Indian Tribe of South Carolina at a meeting held on 

February 20, 1993. This revised draft of the "Agreement in 

Principle" is the document attac hed to this Memorandum as Exhibit 

A and is the "Agreement in Principle" referred to in South 

Carolina Statutes 27 - 16 - 100, et seq. (the "State Implementing 

Legislation"). 

5. The negotiations were intense and spirited but civil 

and conducted in the utmost good faith on all sides. Every 
95 

element of the Agreement in Principle was negotiated in detail. 

In the end, each side made major compromises and concessions in 

order to rea:h agreement. 

6. After the Agreement in Principle was approved by the 

members of the tribe, work began to convert the Agreement in 

Principle into State and Federal implementing legislation. 

Further negotiations and additional accommodations on all sides 

were necessary. As a result, the State Implementing Legislation 

differs in some respects from the Agreement in Principle and the 

Federal legislation introduced and filed as H. R. 2399 in the 

u.s. House of Representatives differs in some respects from the 

Agreement. Most notably, events occurring after the Agreement in 

Principle was last revised required that the legislative 

provisions treating games of chance be modified. 

7. In all cases, however, the language in the State 

Implementing Legislation and in H. R. 2399 resulted from 

agreement of the parties represented by the undersigned; no 

change or amendment was made without the concurrence of such 

parties; and the legislative language accurately reflects their 

final agreement. 

8. The undersigned agree that the State Implementing 

Legislation, which is to be executed by the Governor of South 

Carolina concurrently with this Memorandum and the bill 

introduced in the u.s. House of Representatives and filed as H. 

R. 2399, are consistent with the Agreement in Principle, as 

finally revised. The undersigned further agree that the process 

of negotiating the Agreement underlying this legislation was 

difficult, complex, and time-consuming; that the undersigned 

will, therefore, apply their best efforts to secure enactment of 

H. R. 2399 in the form it was introduced; and that the 

undersigned, and the parties they represent, will not seek to 

alter or modify the bill. Each signatory pledges to work 

faithfully and diligently to secure passage of H. R. 2399 in the 

form it has been introduced. 

9. The undersigned acknowledge that the State Implementing 

Legislation and H. R. 2399 express the understanding and 

agreement of the parties, and that events and negotiations 

occurring after the Agreement in Principle was last revised have 

caused the State Implementing Legislation and H. R. 2399 to 

differ in some respects from the Agreement in Principle. In all cases where there are differences, the enacted legislation shall 

control and supersede the Agreement in Principle. The Agreement 

in Princ iple is otherwise a comprehensive statement of the 

parties' terms of settlement. The Agreement in Principle will be 

maintained on record permanently as an official source for those 

provisions which have been incorporated by reference in the 

implementing legislation, and it may be used as a reference to 

-2-
96 

illuminate the intent of the parties and the background of the 

Sta t e and Federal implementing legislation. 

Signed ~his -14th day of June, 

Colum ia, South carolina by: 

Chief, 

Cat awba Indian Tribe 

of South Carolina 

E. Fre d Sanders Robert W. Hayes, Jr 

Assistant Chi e f South Carolina Stat Senator 

h~~ j~k IY~Y1"'-:?r'( __ . Carso n Blue ~ ohn M. Spr~r. Secretary-Tr e asurer ,ember of Co ngress 

8~~----

- 3-
1 AGREEMENT IN PRINCIPLB 

2 

1 1. ~- This Agreement in Principle is made by and 

2 between the following parties: 

3 1.1 The Catawba Indian Tribe of South Carolina, 

4 represented by Gilbert Blue, Chief; E. Fred Sanders, Assistant 

5 Chief; Carson Blue, Secretary-Treasurer; and Tribal Executive 

6 Committee Members · Buck George, Claude Ayers, Foxx Ayers, Dewey 

7 Adams and Wilford Harris; and by Don B. Miller, Native American 

8 Rights Fund, and Robert M. Jones, Jay Bender, Richard Steele, 

9 Cheryl Perkins and Ross Swimmer, attorneys for the Catawbas. 

10 1 . 2 The State of South Carolina, represented by 

11 Governor Carroll A. Campbell, Jr. , and by A. Crawford Clarkson, 

12 Jr., Chairman of the Governor's Advisory Committee on the Catawba 

13 Indian Claim; by Senator Robert W. Hayes, Jr. , representing the 

14 Legislative Delegations of York, Lancaster, and Chester Counties, 

15 South Carolina; by Representative John M. Spratt, Jr. , 

16 represent i ng the South Carolina Congressional Delegation. 

17 

18 2. Definitions. When used in this Agreement, the 

19 following words, terms or abbreviations shall have the meanings 

20 given below: 

21 2.1 "Agreement" shall mean this written document, 

22 entitled "Agreement in Principle . • 23 2.2 •catawba Indian Tribe,• •catawbas,• or "Tribe• 

24 shall mean the Catawba Indian Tribe of South Carolina as 25 constituted in aboriginal times, which was party to the Treaty of 

26 Pine Tree Hill in 1760 as confirmed by the Treaty of Augusta in 

27 1763, which was party also to the Treaty of Nation Ford in 1840, 

28 and which was the subject of the Catawba Indian Tribe of South 

29 Carolina Division of Assets Act, enacted September 29, 1959, 

30 codified at 25 U.S.C . Sections 931·938, and all predecessors and 

31 successors in interest, including the Catawba Indian Tribe of 

32 South Carolina , Inc . 33 2.3 •state Government• or •state• shall mean the State 

34 of South Carolina. 

35 2.4 "Executive Committee• shall mean the body of the 

36 Catawba Indian Tribe of South Carolina composed of the Tribe's 

37 executive officers as selected by the Tribe in accordance with 

38 its constitution. 

39 2 . 5 "General Council• shall mean the membership of the 

40 Tribe convened as the Tribe's governing body for the purpose of 

41 conducting tribal business pursuant to the Tribe's constitution. 

42 2.6 "Member• or •tribal member• shall mean individuals 43 as determined in accordance with Section 7. 

44 2.7 •secretary of the Interior• or •secretary• shall 

45 mean the Secretary of the Department of the Interior or his 

46 designee, and "Department• or •Department of the Interior• shall 

47 refer to the United States Department of the Interior. 48 2.8 "Federal Government• shall mean the Government of 

49 the United States of America. 

50 2 . 9 •catawba Claim Area• shall mean that area of 

1 
98 

1 approximately 144,000 acres in York, Lancaster, and Chester 

2 Counties, South Carolina claimed by the Catawba Tribe under the 

3 Treaty of Pine Tree Hill in 1760 and the Treaty of Augusta in 

4 1763, and surveyed by Samuel Wylie in 1764, and ceded by the 

5 Catawba Indian Tribe to the State of South Carolina by the Treat y 

6 of Nation Ford in 1840. 

7 2.10 "Suit" or "Suits• shall mean the Catawba Indian 

8 Tribe of South Carolina v. State of South Carolina et al . . 

9 docketed as Civil Action No. 80-2050 and filed in United States 

10 District Court for the District of South Carolina and the Catawba 

11 Indian Tribe of South Carolina v, United States of America, 

12 docketed as Civil Action No . 90-553L and filed with the United 

13 States Court of Claims . 14 2.11 "Claim" or "Claims" shall mean any claim which 

15 was asserted by the plaintiffs in either Suit, and any other 

16 claim which could have been asserted by the Catawba Indian Tribe 17 or any Catawba Indian of a right, title, o r interest en property, 

18 to trespass o r property damage s, or of a hunting, fis~ing or 19 other righ t to natural resources, if such claim is based upon 

20 aborigina l title, recognized title, or title by grant, patent, o r 21 treaty, including the Treaty of Pine Tree Hill of 1760, the 

22 Treaty of Augusta of 1763, o r the Treaty of Nation Ford of 184 0. 

23 2.12 "Termination Act" shall mean the "Catawba Indian 

24 Tribe Division of Assets Act," enacted September 21, 1959, 73 

25 Stat. 59 2, 25 U.S.C. Section 931-938. 

26 2.13 "Reservation" shall mean the tract of land now 27 held in trust for the Tribe by the State of South Carolina, as 

28 described in Exhibit A. sometimes referred to herein as the 

29 "existing reservation," and lands added to the existing 

30 reservation in accordance with Section 14, sometimes referred to 31 herein as the 'expanded reservation, • which are to be held in 

32 t rust for the Tribe by the United States of Ameri ca , acting 

33 thr ough the Secretary of Interior, in accordance with this 

34 Agreement. 

35 2. 14 "Tribal Trust Funds" shall mean those funds set 36 aside i n trusts established for the benefit of the Tribe, as 37 provided in Section 13. 

38 2.15 "Implementing legisl ati on " shall mean all 3 9 a ppropriate federal, stat e and c ount y laws and or dina ~c s and 

40 tribal action necessary to enact and effect the terms, 

41 provisions, and conditions of settlement, as specif i ed in Sectio n 42 3. 1 of this Agreement. 

43 2.16 "Transf e r• includes, but is not limited to, any 

44 voluntary or i nvoluntary sa le, grant, lease, allotmeP.t, 45 parti t ion , o r othe r conveyance; any transaction the p~rpose of 

46 which was to effec t a sale, grant, lease, allotment , partition, 47 o r c o nveyance; and any act , event or circ umstance t ha: resulted 

48 i n a change in titl e to, possession of, dominion over, or contro l 

49 o f land or natural resources . 

50 2.17 "Internal Matters" or "Internal Tribal Matters" 

51 are matters which include, but a re not limited to the following 

52 examples: the relationship between the Tribe and one or more of 

2 
l 

2 

3 

4 

5 

6 

7 

8 

9 

10 

ll 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 · .. 

23 

24 

25 

26 

27 

28 

29 

30 

31 

32 

33 

34 

35 

36 

37 

38 

39 

40 

41 

42 

43 

44 

45 

46 

47 

48 

49 

50 

51 

52 

99 

its members , the conduct of Tribal government over members of the 

Tribe , or the Tri be's exercise of the power to exclude 

i ndividuals from its Reservation. 

3. Purpose ; Duration of Certain Provisions Relating to 

Hunting and Fishing Licenses and Tax Treatment . 3 . 1 pyrpose. The purpose of this Agreement is to 

record the understanding of the parties with respect to 

settlement of the claims and suits pending in the United States 

District Court for the District of South Carolina entitled 

Catawba Indi an Tribe of Sou th Carolina Inc. v State of South 

Carolina. et al., docketed as Ci vil Action No. 80-2050, and in 

the United States Claims Court entitled The Ca t awba Indian Tri be 

of South Car oli na v . United States of America, docketed as Civil 

No . 90·553L, and any other suit or claim, which is filed now or which may be filed in the future , all , as furt her defined in 

Sec tions 2.10 a nd 2 . 11 . By s i gning this document, each party 

signifi es i t s good fait h commitment to fulfill the t erms of s ettlement s et f or th i n t h i s Agreement . All pa rti es recognize, 

however , that t his Agreement i s an agreement in princ iple ; that 

to complete thi s Agreement , terms of settl ement and i mplementing 

legislation i n more explici t detail will have to be defined and 

drafted; and that to consummate this Agreement, formal ta~ification will be required by the Catawba Indian Tribe and leg~lation will be required to be enacted by the governing 

bodies, of York and Lancaster Counties, by the General Assembly of 

South Carolina , and by the Congress of the United States. The 

parties agree that they will use their best efforts to ensure passage of federal , state and local legislation and tribal action 

implementing the provisions of this Agreement without any 

material change and will attempt throughout the legislative 

process to fulfill the intent of this Agreement. Legislation 

adopted by the State shall not become effective until federal 

legislation is enacted apd reviewed by the Governor to ensure it 

is consistent with the provisions of this Agreement . 3 . 2 Licenses and·, Tax Treatment. The Tribe and i ts 

members shal l be eligible to receive the hunt i ng and fishing 

licenses descri bed in Section 17 . 5 and the tax treatment 

described in Sections 18 . 4 . 2, 18.5 . 1, 18.5 . 2, 18.6.1, 18 . 9 . 1, 

18.9.3 and 18.10 of this Agreement for a period of 99 years from 

the effective date of the State implementing legislation required 

to effectuate the settlement described herein. 

4. Restoration of the Federal Trust Relationship. 

4 . 1 Establishment of Trust Relationship . Upon f i nal 

enactment of all local, state and fede ral legisl ation 

implementing this settlement, the trust relationship between the 

Tribe and the United States shall be res~red. On the same date as the Tribe is restored, the Tribe and the members of the Tribe 

shall be eligible for all benefits and services furnished to 

federally recognized Indian Tribes and their members. The 

federal legislation implementing this settlement will, 

3 
100 

1 prospec~ively, repeal ~he rmina~ion Ac~. Such repeal shall no~ 

2 dives~ or dis~urb ~i~le ~o any land conveyed ~o any person or 3 firm as a result of ~he Termination Ac~ and ~he partition and 

4 liquidation of Tribal land. The jurisdiction and governmental 

5 powers of the Tribe shall be exclusively those that are 

6 specifically enumerated in this Agreement. Except for claims 

7 extinguished under this Agreemen~. ~he enac~ment of the 

8 implementing legislation shall not affect any proper~y righ~ or 

9 obligation or any con~rac~ual right or obliga~ion in existence 

10 before i~s e ffective da~e or any obligation for ~axes levied 

11 before such da~e. 

12 4 . 2 Enti~l men~ o f Tribe and Meffibers . The Catawba 

13 Indian Tribe o f Sou~h Carolina will be en~ered on the list o f 

14 federally recognized bands a nd tribes maintained by the 

15 Depa r~rnen~ o f the Inte rior; and i~s members will be entitled t o 

lf specia l service s , educational benefits, medical care, a nd welfare 

17 assistance provided by the United States to Indians because of 

18 their s~a us as India ns, and ~he Tribe will be entitled to t he 

19 specia l services perfo rmed by the United States for tribes 

20 beca use o f t he ir status as Indian tribes. In addition to any 

21 o t her provision of health ca re ~hat might be authorized or 

22 provided to the Tribe or its members now or in the future by 

23 s tate or federa l authority, the Indian Health Service shall be 

24 authorized and direc~ed ~o issue "heal~h cards" for use by any 

25 member of the Tribe i n a ea l~h care facili~y of their choosing 

26 approved by Indian Hea lth Service as to quality of care. Such 

27 "health card" s hall entitl e he tribal member to the same l evel 

28 o f care as is available at any Indian health care fa c ility or 

29 available through contract health care. 30 4. 3 Ex~ nt of Jurisdic~ion. Federal recogniti on shall 

31 no~ be construed to empower the Catawbas with special 

32 ju risdi c tion, or to derogate from the jurisdiction of the State 

33 o f South Carolina or its political subdivisions other than 

34 muni cipalities over the Ca tawba Indian Tribe and its membe rs, 35 excep~ as expressly provided in ~his Agreemen~. The a~awba 

36 Tribe , its members, a nd t he l ands and natural r esource s owned by 

37 the Tribe and its members (including land and natural resources 38 held by the United Sta ~es i n trus~ for the Tribe) shall be 

39 subjec t to the c ivil, cr iminal, and regulatory jurisdiction of 

40 t he State, i~s agencies and political subdivisi ons other than 

41 muni cipali~ies, and the civil and criminal jurisdiction o f the 

42 courts of t he State to the s ame extent as any other person, 

43 citizen, or l a nd in the Sta te, except as otherwise expressly 

44 p rovi ded in this Agreement. 45 4.4 Impa ct Aid . Any school distric~ in York County or 46 Lancaster Coun ty aff ec ted by the loss o f property tax reve nues 47 caused by the e stabl ishmen t o f the Catawba Indian Reservation 

48 shall be e l igible for "Impac t Aid," a~ ~he ~ime ~h e egis a~ion 

49 is adopted, as provided by 20 U.S . C. 236, et seq. 50 

51 

4 
101 

1 5. Monetary Contributi ons Toward Settlement. 

2 5.1 Federal Contribution. Upon formal ratification of 

3 this Agreement by the tribe and final enactment of all local, 

4 state and federal legislation consummating this settlement, the 

5 Federa l Government shall contribute Thirty-two million and no/ 100 

6 i $32,000,000) Dollars to the trust funds established in 

7 accordance with the provisions of Section 13 less any funds to be 

8 paid pursuant to Section 6.4 of this Agreement, in annual 

9 installments as specified on the schedule set forth in Exhibit A10 1, and shall begin providing the services and benefits accorded 

11 recognized tribes and their members, as provided in this 

12 Agreement. 

13 5.2 State. Local. and Private Contributions. Upon 

14 formal ratification of this Agreement by the Tribe and final 

15 enactment o f all loca l , state, and federal legislation 

16 consumma ting this settl ement , the State, local governments and 

17 private sources sha ll contri bute Eighteen million and no/ 100 

18 ($ 18, 000,000) Dollars, to the Department of the Interior, and the 

19 Secretary shall deposit such contributions, less any funds to be 

20 paid pursuant to Section 6.4 of this Agreement, i n the trust 21 funds established pursuant to Section 13, in annual installments 

22 as specified in the schedule set forth in Exhibit A-2. Any 

23 private payments made under this Agreement shall be treated as 24 either a payment in settlement of litigation or a charitable 

25 contribution for federal and state income tax purposes. 

26 

27 6. Extinguishment of Claims. Dismissal of Suits, 

28 Ratification of Prior Transfers . 

29 6.1 In consideration of the payments set forth in 

30 Section 5 and other benefits accruing to the Tribe and its 

31 members under this Agreement, the federal legislation 

32 implementing this settlement shall extinguish all claims and all 

33 right, title, and interest that the Tribe, its members, or any 

34 one or more of its members, or any person or group of persons 

35 purporting to be Catawba Indians, may have to aboriginal title, 

36 recognized title, or title by grant, patent, or treaty, to the 

37 lands located anywhere in the United States; except, however, 

38 that this quitclaim and release shall not apply to the 630 - acre 

39 reservation described in Exhibit A, now held in trust by the 

40 State of South Carolina; nor shall it divest or disturb any 

41 member of the Tribe of any fee simple, leasehold, or remainder 

42 estate, or any equitable or beneficial interest, he or she may 

43 own and hold individually, and not as members of the Tribe, in 

44 any parcels of land anywhere in the United States. 

45 6 . 2 In further consideration of the payments set forth 

46 in Section 5 and other benefits accruing to the Tribe and its 

47 members under this Agreement, the federal legislation 48 implementing this settlement shall also extinguish any hunting, 

49 fishing, or water rights or rights to any other natural resources 50 claimed by the Tribe based on aboriginal or treaty recognized 

51 title, and all trespass damages and other damages associated with 

52 use, occupancy or possession, or entry upon such lands, including 

5 
102 

1 without limitation all profits and rents derived from such lands , 2 and any timber, soil, minerals , c rops, or- other na t u ral resources 

3 take n from such l ands; provided, however, that extinguishment of 

4 the c laim shall in no way diminish or derogate from the fee 

5 simple estate in the existing reservation now held by t he State 

6 as trustee for the benefit of the Catawbas. 

7 6.3 The Tribe shall accept the paymenr.s set forth in 

8 Sec tion 5 and the benefits provided under this Agreement as just 

9 and full compensation for, and the federal impl ementing 

10 legislation shall ratify and approve, all prior tra nsfers of 1 1 lands by the Tribe, i t s members or any one or more of its members 

12 within the United Sta t es, including the cession of title 

13 purportedly effected by the Treaty o f Nation Ford in 1840, and to 14 the extent that such c ession may have included aboriginal title, 

15 such legisla ti on shal l extinguish aboriginal title as of t he 

16 effect ive date o f transfer; provided, howeve r that nothing in 

17 this section sha l l be const r ued to affect, diminish, or ellminate 

18 the personal cla i m o f any individual I ndian which i s pu r sued 

19 unde r any law of genera l applicability t hat protects non - Indians 

20 a s well a s Indians . By virtue of such approva l and rati fication, 

21 together wit h the extinguishment of aboriginal title, all c laims 22 based on aboriginal, recognized title, or title by grant , patent 

23 or treaty against the United States, or against a ny state or 

24 subd ivision of any state, o r any person or entity, by the Catawba 

25 Indian Tribe, or by any membe r or members of the Tribe, or by any 

26 person or group of persons purporting to be Catawba Indians , 

27 including but not limited to possessory claims and c laims for 

28 ejectment, claims for trespass damages, and claims for use, 29 occupancy , hunting, fishing, or extraction and removal of natura l 

30 re sources, and any acc ounting therefor, arising fr om the 

31 beginning of time to the date of such legislation shall be 

32 cance led , released, and forever extingu ished. Adoption of the 

33 federal and state legislat ion i mplementing this Agreement shall 

34 constitute a general discharge o f all obligations of the United 

35 States, the State and all o f their political subdivisions , 36 agencies and departments, including claims asse r ted in t he Sui ts 

37 defined in Section 2.10 arising out of any treaty or agreement, 

38 including the Treaty o f Nation Ford, the Treaty of Augusta and 39 the Treaty of Pine Tree Hill , with the Tribe, its member s or any 

40 one or more of its members. 

41 6.4 Upon final enactment of all impl ementing 

42 legislation, the Tribe shall duly consent to the dismissal with 

43 prejudice of the suits, and shall execute and deliver to the 

44 State and the United States full and final releases of a ll their 

45 claims against the State and the United States and al l othe r 46 defendants and landowners in the Claim Area, including defendants 

47 not yet named or sued. The parties to the suits shal l bear their 

48 own costs and attorney fees and the federal implementing 

49 legislation shall authorize and direct the Secretary of the 

50 Interior to approve and pay to the Tribes' attorneys reasonable 

51 attorney fees and expenses not to exceed ten and no/100 (10%) 

52 percent of the funds paid pursuant to Section 5 of this 

6 
103 

1 Agreement. 

2 6.5 The federal legislation implementing this 

3 settlement shall bar the United States from asserting by or on 

4 behalf of the Tribe, any one or more of its members, or anyone 

5 purporting to be a Tribal member, any claim arising before the 

6 date of such legislation from the transfer of any land or natural 

7 resources of the Tribe by deed or other grant, or by treaty, 

8 compact, or act of law, on the grounds that such transfer was not 9 made in accordance with the laws of the State or the United 

10 States. The federal legislation implementing this settlement 

11 shall also provide that any transfer of land or natural resources 

12 located anywhere withir. the United States from, by, or on behalf 

13 of the Tribe, or any of its members, or anyone purporting to be a 14 Tribal member, shall be deemed to have been made in accordance 

15 with the Constitution and all laws of the United States, 

16 including without limitation the Trade and Intercourse Act of 

17 1790, Act of July 22, 1790 (Chapter 33, Section 4, 1 Statutes 

18 :37, 138), and all amendments thereto and subsequent reenactments 19 and versions thereof; and Congress will ratify and approve any 

20 such transfer as of its effective date; provided, however, that 

21 nothing in this section shall be construed to affect, diminish, 

22 o r eliminate the personal claim of any individual Indian (except 

23 for any federal common law fraud claim or other action to recover 24 for a Claim as defined in Section 2.11 which is pursued under any 

25 law of general applicability that protects non-Indians as well as 26 Indians. 

27 6.6 The provisions of this section shall take effect 

28 immediately upon adoption of federal and state legislation 

29 implementing the provisions of this settlement. The federal 

30 legislation shall provide that in the event the state 31 contribution, or any part of it, is not appropriated as 32 scheduled, the United States shall advance the Tribe the amount 33 which the state has failed to appropriate as scheduled. The 

34 United States shall have a cause of action to recover from the 

35 state by an action in the United States District Court for the 

36 District o f South Carolina any amount so advanced to the Tribe. 

37 

38 7. Tribal Membershig. 

39 7.1 Membership Criteria. For purposes of approving or 40 ratifying this Agreement or any other agreement for settlement of 

41 the Tribe's claims, a person shall be considered a member of the 

42 Tribe and his or her name shall be carried on the membership roll 

43 if the person is living at the time of the enactment of federal 44 legislation pursuant to this Agreement and ; 

45 7.1.1 His or her name was listed on the 

46 membership roll published by the Secretary of Interior in the 

47 Federal Register on February 25, 1961, (26 Federal Register 1680-

48 1688, "Notice of Final Membership Roll" ) and he or she is not 49 excluded under the provisions of Section 7 .2 ; or 50 7.1.2 The Executive Committee dete1cmines, based 

51 on the criteria used to compile the above-referenced roll, that 

52 his or her name should have been included on the membership roll 

7 
104 

1 at that time, but was not; or 2 7.1 . 3 He or she is a lineal descendant of a 3 member of the Tribe whose name appeared or should have appeared 

4 on the membership roll published on February 25, 1961. 

5 7.2 Revision of Membership Roll. The Tribe will revise 

6 and update its membership roll, including lineal descendants and 

7 others omitted from the roll published in the Federal Register on 

8 February 25, 1961, and excluding any persons found to have been 

9 erroneously listed . As soon as practicable after enactment of 

10 federal legislation implementing this settlement, the Secretary 

11 will publish in the Federal Register a notice that the rolls of 

12 the Catawba Indian Tribe of South Carolina are open, the 

13 requirements for membership, the final membership roll as of 

14 September 29, 1959, and t he updated membership role as prepared 

15 by the Execut ive Committee and approved by the General Counc il ; 16 that the updated roll will be open for a period of nine ty (90) 

17 days , and t he name and address of the tribal or federal offi c ial 

18 to whom inquiries should be made . 19 7 . 3 Finalizing Membershi~. Within one hundred 

20 twenty (120) days after publication of such notice, t he 

21 Se cretary, a fter consultation with the Tribe, will prepare and 

22 publish i n the Federal Register a proposed final rol l of the 

23 Tribe's membership. With i n sixty (60 ) days from the date of 

24 publication of the proposed final roll, an appeal may be fi led 

25 with the Executive Committee under rules made by the Executive 26 Committee in consultation with the Secretary. Such a n appeal may 

27 be f i l ed by a member of the Tribe with r e spect to the inclusion 

28 of any name on the proposed membership roll and by any person 

29 with respect to the exclusion of his or her name from the 

30 membership roll. The Executive Committee will review such 

31 appeals and render a decisi on, subject to the Secretary's 

32 approval. If the Executive Committee and the Secre ta ry disagree , 

33 the Secretary's decision will be final . All such appeals will be 

34 resol ved within ninety (90) days following publication of the 

35 propos ed roll . The final membership roll of the Tribe will then 

36 be published in the Federal Register and will be f i nal f or 

37 purpos es of this settlement. 38 7.4 Future Membe rship in the Tribe. The Tribe shall 

39 have the right to determine future membership in the Tribe; 

40 however, in no event may an individual be added to the final 41 member ship roll which is compiled in accordance with Sec tion 7.3 

42 unl ess an individua l is a lineal descendant of a person on such 

43 final membership roll. 

44 

45 8 . Transit i onal and Provisional Government. 

46 8.1 Executive Committee. If the Tribe completes 

47 revision and adoption of a new constitution prior to consummation 

48 of this Agreement, the Exe cutive Committee instituted under the 

49 new constitution will represent the Tribe and its members in the 

50 implementation of this Agreement . 51 8 . 2 Executive Committee as Transitional Body. Until 

52 the Tribe has completed the revision and adoption of a new 

8 
105 

1 constitution, the existing Executive Committee of the Catawba 

2 Indian Tribe of South Carolina will be recognized as the 

3 provisional a nd transitional governing body of the Tribe. The 

4 Executive Committee shall represent the Tribe and its members in 

5 the implementation of this Agr.eement. The Executive Committee 

6 shall have full authority to enter into contracts, grant 

7 agreements and other arrangements with any federal department or 8 agency , and shall have full authority to administer or operate 

9 any program under such contracts or agreements. Until the initial 

10 election of tribal officers under a new constitution and by -laws, 

11 the Executive Committee will determine tribal membership in 

12 accordance with the provisions of Section 7; and the Executive 

13 Committee will oversee and implement the ·revision and proposal to 14 the Tribe of a new constitution, and conduct such tribal meetings 

15 and elections as may be required. 

16 

17 9 . Tribal Constitution and Governance . 

18 9 . 1 Indian Re organization Act . If the Tri be so elects, 

19 it may o rganize under t he Indian Reorganization Act, 25 U. S . C. 

20 Sections 461 · 479, (IRA) and may adopt and apply to the Tribe any 

21 of the following provisions to the extent they are consistent 

22 with this Agreement : Sections 461, 466, 469, 470, 470a, 471, 472, 

23 472a, 473 , 475a, 476, 477, 478, 478a, and 478b . 24 9.2 Revision of Tribe's Constitution. The Executive 

25 Committee will oversee the drafting of a proposed constitution 

26 and by-laws for the Tribe, and upon completion, provide for 

27 distribution of copies to members of the Tribe. The Executive 

28 Committee will set a date, time, manner for ratification by 

29 secret ballot after distribution of the proposed constitution and 

30 by-laws, and include a notice of the election with the 

31 distribution of the documents to be approved . Unless otherwise 

32 provided in the Tribe's constitution, two-thirds of those 

33 actually voting shall be necessary to ratify and adopt the tribal 

34 constitution and by-laws. 

35 9.3 Elections. Within one hundred twenty (120) days 

36 after the Tribe ratifies and adopts a constitution and by-laws, 

37 the Executive Committee shall conduct an election by secret 38 ballot for the officers and governing body of the Tribe as 39 specified in the constitution and by-laws. Subsequent elections 

40 will be held in accordance with the Tribe's constitution and by41 laws . 

42 9 . 4 Extension of Time. Any time periods prescribed 

43 in Section 9.3 may be altered by written agreement between the 44 Executive Committee and the Secretary. 

45 

46 10 . Jurisdiction and Governance of the Reservation. 

47 10.1 Governance . Except as otherwise provided in this 

48 Agreement, the Tribe shall exercise full authority over internal 

49 tribal matters. 

so 10.2 Powers of Tribe. The sections of the IRA cited 

51 in Paragraph 9.1 shall apply to the Tribe if the Tribe so elects. 

52 Regardless of whether the Tribe elects to organize under the IRA, 

9 
106 

1 in any constitution adopted by the Tribe, the Tribe may be 

2 authorized to the extent which is consistent with this Agreement 

3 (i) to regulate the use and disposition of tribal property; (ii) 

4 to define laws, petty crimes and rules of conduct applicable to 5 members of the Tribe while on the reservation, supplementing but 

6 not supplanting criminal laws of the State of South Carolina; 

7 (iii) to regulate the conduct of businesses located on the 

8 reservation and individuals residing on the reservation; (iv) to 9 levy taxes on members of the Tribe and levy other taxes as 10 provided in Section 18; and (v) to grant exemptions, abatements 

11 or waivers from any tribal laws, tribal regulations, or tribal 

12 taxes, except the Tribal Sales and Use Taxes, otherwise 

13 applicable on the reservation, including waivers of the 

14 jurisdiction of any tribal court; (vi) to adopt its own form of 

15 government; (vii) to determine membership as provided in Section 16 7; (viii) to exclude non -members from its membership rolls and 

17 from the reservation, e xc ept for (a) any public roads traversing 

18 the reservation; (b) passage o n a nd use of the Catawba Rive r; (c ) 

19 public or private easements encumbering the reservation prop e rl y 

20 used by those with a uthority to use such easements; (d) federal , 21 state , a nd local governmental offic ials and employees duly 

22 performing official governmental functions on the reservation; 

23 and (e) any other access to the reservation allowed by federal 

24 law; a nd (ix) to charter tribally-owned economic d eve lopment 

25 corporations and enterprises provided the corporations or 26 enterprises register with the Secretary of State f o r South 

27 Carolina as a domestic or foreign corporation when doing business 

28 off the reservat ion. 

29 10.3 Indian Civil Rights Act. The Tribe shall be 

30 subject to the Indian Civil Rights Act, 25 U.S.C . Sections 13 01-

31 1303, 1311, 1312, 1321-1326, 1331, 1341, and any amendments 

32 thereto , whi ch shall appl y to the reservation and any tribal 

33 court and to anyone subject to its jurisdiction. 

34 

35 11. Criminal Jurisdiction. 

36 11.1 Fel onies. Except as provided in Section 11. 2 

37 below, the State of South Carolina shall exercise exc lusive 38 jurisdiction over al l crimes under the statutory or common law of 3 9 the State of South Carolina. 

40 11.2 Jurisdiction of Tribal Cou;:t. Any constitution 41 adopted by the Tribe may provide for a tribal court with criminal 

42 j u r i sd iction. The territorial jurisdiction of the court shall be 

43 limited to the reservation; the jurisdiction of the court over 44 persons shall be limited to members of the Tribe; and the s ubject 

45 matter jurisdiction of the court sha ll be limit ed t o crimes 

46 within the jurisdiction of the state's magistrate's cou rts and to 

47 misdemeanors and petty o ffenses specified in the o rd i nances or 48 laws adopted by the Tribe, provided that the fines and pe na l ties 

49 for such offenses shall not exceed the maximum f ines and 

50 penalties that a state magistrate's court may impose. In all 

51 cases i n which the tribal court has jurisdiction over state law, 

52 its jurisdiction shall be concurrent with the jurisdiction of the 

10 
1~ 

1 magistrates courts of the state; and defendants shall have the 

2 right to remove such cases to the magistrate ' s court or appeal 

3 their convictions in tribal court cases to the General Sessions 

4 Court, in the same manner that magistrates• court decisions may 

5 be appealed , or in accordance with such procedures as the state 6 legislature may provide . 

7 11 . 3 For purpose of enforcing the Tribe's powers under 

8 Sections 10 . 2, 11, and 17 of this Agreement, the Tribe may employ 

9 peace officers. If the Tribe elects to employ peace officers, 

10 all tribal peace officers shall undergo and pass the same course 11 of training required of sheri ff's deputies by the State of South 

12 Carolina and the Counties of York and Lancaster and shall be 

13 cross-deput ized by the sheriffs of York and Lancaster Counties . 14 The State, the Counties of York and Lancaster, and the Tribe 

15 shall enter i nto a cross-deputization agreement whereby tribal 

16 law enforcement officers are authorized to enforce state law 

17 within the reservation against members and non-members of the 

18 Tribe and state and county law enforceme nt officers are 19 authorized to enforce state, c ounty and tri bal law within the 

20 reservation against members and non -members of the Tribe . 21 

22 12. Civi l Jurisdi ct i on: Jurisdiction of Triba l Court . 23 12 . 1 The Tribe may provide in its constitution for a 24 Tribal Court having civil jurisdiction which may extend up to, 

25 but not exceed, the extent provided in this Agreement . The Tribe 

26 may have a court of original jurisdiction, as well as an 27 appellate court. 

28 12 . 1 . 1 . With respect to actions on contracts, the 

29 Tribal Court may be vested with jurisdiction over: 30 12.1.1.1 An action on a contract to which 

31 the Tribe or a member of the Tribe is a party, which expressly 

32 provides in writing that the Tribal Court has concurrent or 

33 exclusive jurisdiction. 

34 12.1.1.2 An action on a contract between the 

35 Tribe or a member of the Tribe and other parties or agents 

36 thereof who are physically present on the reservation when the 

37 contract is made, which is to be performed in part on the 

38 reservation, provided that such contract does not expressly 

39 exclude juri sdiction of the Tribal Court . For purposes of this 

40 section, the mere delivery of goods or the solicitation of 

41 business on the reservation shall not constitute part performance 

42 sufficient to confer jurisdiction. 

43 12 . 1.1 . 3 An action on a contract to which 

44 the Tribe or a member of the Tribe is a party where more than 

45 fifty percent of the services to be rendered are performed on the 

46 reservation, which does not expressly exclude jurisdiction of t he 

47 Tribal court. 

48 12.1.2 With respect to actions i n tort, the Tribal 

49 Court may be vested with jurisdiction over: 

so 12.1.2.1 An action arising out of an 51 intentional tort, as defined by South Carolina law, committed on 

52 the reservation in which recovery is sought for bodily injuries 

11 
108 

1 and/or damages to tangible property located on the reservation. 

2 12.1.2.2 An action arising out of negligent 

3 tortious conduct occurring on the reservation or conduct 

4 occurring on the reservation for which strict liability may be 5 imposed, excluding, however, accidents occurring within the 

6 right·of·way limits of any highway, road, or other public 

7 easement owned or maintained by the State or any of its 

8 subdivisions, or by the United States, which abuts or crosses the 

9 reservation; provided, however, that any such action in tort 10 involving a non-member of the Tribe as defendant may be removed 

11 to a state or federal court of appropriate jurisdiction if the 

12 amount in controversy exceeds the jurisdictional limits then 

13 applicable to Magistrate's Courts in the State of South Carolina. 

14 12.1.3 The Tribal Court may be vested with 15 exclusive jurisdiction over internal matters of the Tribe. 

"" 12.1.4 The Tribal Court may also be vested with 

17 jurisdiction over domestic relations where both spouses to the 

18 marriage are members of the Tribe and both reside on the 

19 reservation, or last resided together on the reservation before 

20 the separation leading to their divorce. 

21 12.1.5 The Tribal Court may also be vested with 

22 jurisdiction to enforce against any business located on the 23 reservation, and any members or non-members residing on the 

24 reservation, any tribal civil regulation regulating conduct on 25 the reservation enacted pursuant to Section 10.2 or 17 of this 

26 Agreement. Such persons or entities are charged with notice of 

27 the Tribe's regulations governing conduct on the reservation and 

28 are subject to the enforcement of such regulations in the tribal 

29 court unless the tribe has specifically exempted the entity or 30 person from any or all regulation and enforcement in tribal 

31 court. 32 12.1.6 The original jurisdiction of the Tribal 

33 Court over the matters set forth in Sections 12.1.1.2, 12.1.1.3 

34 and 12.1.2 and 12.1.4 shall be concurrent with the jurisdiction 

35 of the Court of Common Pleas of South Carolina, the Family Court 

36 and the U. S. District Court for South Carolina. The original '7 Jurisdiction of the Tribal Court over the matters set forth in 38 Section 12.1.1.1 shall be concurrent or exclusive depending upon 

39 the agreement of the parties. The original jurisdiction of the 

40 Tribal Court over matters set forth in Section 12.1.3 shall be 

41 exclusive. The original jurisdiction of the Tribal Court over 42 matters set forth in Section 12.1.5 shall be exclusive unless the 

43 Tribe has waived such exclusive jurisdiction as to any person or 44 entity. As to all sections referred to herein jurisdiction over 45 appeals, if any, is governed by Section 12.1.8. 

46 12.1.7 The Tribe may waive Tribal Court 

47 jurisdiction or the application of tribal laws with respect to 48 any person or firm residing, doing business, or otherwise 

49 entering upon the reservation or contracting with the Tribe. Any 

50 member of the Tribe may also waive Tribal Court jurisdiction or 51 specify in the contract the law of any appropriate jurisdiction 

52 to govern any commercial transaction or the interpretation of a 

12 
109 

1 contract to which the member is a party . 

2 12 . 1.8 All final judgments entered in actions 

3 tried in Tribal Court shall be subject t o an appeal to the Family 

4 Court, the Court of Common Pleas, or the United States Distri c t 

5 Court , (depending upon whether that court would have had 

6 jurisdiction over the appealed matter had it been commenced in 

7 that court) if: (i ) a party to the suit i s not a member of the 

8 Tribe; Iii) the amount in controversy or the cost of complying 

9 with any equitable o rder or decree exceeds the jurisdictional 

10 limits then applicable in the Magistrate's Courts of South 

11 Caro lina; and (iii) provided that the subject matt er of the suit 

12 does not fall within the provisions of Se ctions 12.1 .1. 1 if 

13 juris diction is exclusive, or 12.1.3 or 12.1.5 . The Tribe may 

14 enlarge the right of appeal to inc lude o ther subject matters and 

15 members of t he Tr i be, subjec t t o such rule s and procedures as the 

16 applicable court and rel evant state and federal laws may provide. 17 12.1.9 In any such a ppeal , the court may, as 18 appropriate (i ) enter judgment affirmi ng the Tribal Court, Iii ) 

19 dismiss the case fo r lack of jurisd i ction of the Tr iba l Court, 

20 but onl y in those cas es wh ere the Tribal Court has first 

21 addre ssed the issue of its jurisdiction; (iii) reverse o r r emand 

22 the cas e for retrial o r r econsiderati on i n Tribal Court o r (iv) 

23 g rant a trial de novo i n its court. 24 12.1. 10. In any appeal, t rial, o r tri al de novo , 

25 the reviewing court shall apply any regulation e nact ed pursuan t 

26 to Tribal a uthority. 

27 12 . 1.11 In cases subject to the provisions o f 

28 12 . 1.2, 12 .1 .8 and 12.1 .9, all final judgments of t he Tribal 

29 Court shall be given full faith and credit in the state or 30 federal court with a pprop riate jurisdiction, and the Tribal Court 

31 shall reciprocate . 32 12.1 .12 I f a member o f the Tribe seeks to en force 

33 against a non-membe r in state or federal court a final judgement 

34 of t he Tribal Court in a case whi ch is not sub ject to t he 

35 provisions o f 12 .1 .2, 12 . 1.8 and 12.1.9, the judgment s hall be 

36 revie wed by the state court in t he manner provided i n the Un i form 

37 Arbi tration Act, S .C . Code 15-48-10 et. seq. a nd by the federal 

38 court in the manner provided in the Un ited States Arbi tration 

39 Act, 9 U.S . C. 1 et. seq. 

40 12 .2 Sovere ign Immunity. 

41. 12.2.1 The Tribe may sue, or be s ued, in any 

42 court of competent jurisdiction; except, however, tha t the Tribe 

43 shall enj oy sovereign immunity, inc luding damage limits and 

44 except as provided i n 12.2.7, immunity from seizure, execution. 45 or encumbrance of properties, to t he same extent as the poli tical 

46 subdivisions of the State as prov ided in the Sout h c arolina To rt 47 Claims Act, Section 15-78 ·1 0, et seq., S.C. Code Annotated, 1976 

48 as amended, and amendments o f gene ral appli cability t he r e t o 49 adopted hereafter. With r espect to liabi lity based on contract, 

50 however, the Tribe may, in a written contract, provide that it is 

51 immune from suit on that contract as if there had bee n no waive r 52 of sovereign immunity. Notwithstanding the provisions of this 

13 
110 

1 section, the Tribe will be subject to suit as provided in Section 

2 17.2. 

3 12.2.2 The Tribe shall procure and maintain 

4 liability insurance with the same coverage and limits as required 

5 of political subdivisions of the State by Section 15-78-l40(b), 

6 and amendments thereto hereafter adopted. 

7 12.2.3 Any action alleging tortious conduct by an 8 employee of the Tribe acting within the scope of his duties which 

9 seeks money damages against the Tribe shall name only the Tribe 

10 as a party defendant. 

ll 12.2.4 A settlement or judgment in an action or a 12 settlement of a claim filed with the Tribe shall constitute a 

13 complete bar to any further action by the claimant against the 

14 Tribe by reason of the same occurrence. 15 12.2.5 A claimant may file a verified claim for 

16 damages with the Tribe prior to filing suit, but shall not be 

17 required to file such a claim as a prerequisite to filing suit. 

18 Such claim shall set forth the circumstances which brought about 

19 the loss, the extent of the loss, the time and the place the loss 

20 occurred, the names of all persons if known, and the amount of 

21 the loss sustained. The Tribe shall designate an employee or 22 office to accept the filing of claims. Filing may be 

23 accomplished by receipt by the Tribe's designee of certified 

24 mailing of the claims or by compliance with the provisions of law 

25 relating to service of process. If filed, the claim must be 

26 received within one year after the loss was or should have been 

27 discovered. The Tribe shall have 180 days from the date of the 

28 filing of the claim in which to determine whether the claim 

29 should be allowed or disallowed. Failure to notify the claimant 

30 of action upon the claim within 180 days after the filing of the 

31 claim is considered a disallowance of the claim. While the 

32 filing of such a claim shall not be required as a prerequisite to 

33 suit, if a claimant files a claim, he may not institute an action 

34 until after the occurrence of the earliest of one of the 

35 following three events: (1) the passage o! 180 days from the 

36 filing of the claim with the Tribe, (2) the Tribe's disallowance 

37 of the claim, or (3) the Tribe's rejection of a settlement 

38 offer. 39 12.2.6 The provisions of the following sections 

40 of the South Carolina Tort Claims Act shall apply to the Tribe to 41 the same extent as they apply to the State and its political 

42 subdivisions: Sec. 15-78-lOO(c) (joint tort!easors); 15-78·110 

43 (statute of limitations); 15-78-170 (survival actions); 15-78-190 

44 (applicability of uninsured or underinsured defendant insurance) . 45 12.2.7 In the event that the Tribe's insurance 

46 coverage is inadequate or unavailable to satisfy a judgment 

47 within the limits of the Tort Claims Act, neither the judgment 

48 nor any other process may be levied upon the corpus or principal 

49 of the Tribal Trust Funds or upon any property held in trust for 

50 the Tribe by the United States; however, the Tribe or the 

51 Secretary o! Interior shall honor valid orders of a federal or 

52 state court which enters money judgments for causes of action 

14 
111 

1 against the Tribe arising after the consummation of this 

2 settlement, by making an assignment to the judgment creditor of 

3 the right to receive income out of the next quarterly payment or 

4 payments of income from the Tribal Trust Funds . 

5 12.3 Indian Child Welfare Act. The Indian Child 

6 Welfare Act, 25 U. S.C. 1901, et. seq., (ICWA) shall apply to 

7 Catawba Indian Children except as provided in this section. 

8 Before the Tribe may assume jurisdiction over Indian child 

9 custody proceedings under the ICWA, the Tribe shall present to 

10 the Secretary for approval a petition to assume such 

11 jurisdiction, and the Secretary shall approve the petition in the 

12 manner prescribed in ICWA. Any petition to assume jurisdiction 

13 over Indian child custody proceedings by the Tribe shall be 

14 considered and determined by the Secretary in accordance with the 

15 relevant provisions of ICWA. Assumption of jurisdiction under 

16 ICWA shall not affect any action or proceeding over which a court 

17 has already assumed jurisdiction. Until the Tribe has assumed 

18 jurisdictio n over Indian child custody proc eedings, the State 

19 shall r etain exclusive jurisdiction over Indian custody 

20 proceedings; however, the State Court shall apply the Indian 

21 Child Welfare Act. ICWA shall not apply to private adoptions of 

22 Indian children under the jurisdiction of the Catawba Tribe under 

23 the ICWA where both parents consent to the adoption or in the 

24 case of an unwed mother, the mother consents to the adoption when 

25 the father's consent is not necessary for the adoption under 

26 South Carolina Law Section 20-7-1690 and any amendments thereto, 

27 and t he parents or mother help c hoose adoptive parents, 

28 regardless of whet her or not the adoptive parents are outside the 

29 preferences of the ICWA. However, the court may consider any 

30 benefits, material and cultural, the child may lose i n 

31 determining whether the proposed adoption is in the best 

32 intere sts of the child; provided, however , that failure of the 

33 courts to make this consideration shall not be subsequently held 

34 to invalidate the adoption. In all cases of ado ption, regardless 

35 of whether the ICWA applies, Sec tion 25 U. S.C. 1917 shall apply. 

36 12. 4 Ju r isd ict ion of State Courts. If no Tribal Court 

37 is e stablished by the Tribe, the State shall exe rcise 

38 jurisdiction over all civil and criminal causes arising out of 

39 acts and transactions occurring on the reservation or involving 

40 members of the Tribe. If the Tribe does establish a tribal court, 

41 then the provisions of section 12.1.6 shall govern the questi on 

42 of whether such jurisdiction is exclusive or concurrent. 

43 

44 13. Tribal Trust Funds: Pur~~es. All funds paid pursuant 45 to Sec tion S o f this Agreement sl1all be deposited with the 

46 Secretary in trust for the benefit of the Tribe. Sepa ra te trust 

47 funds I "Trust Funds") shall be established for t he following 

48 purposes: Economic Devel opment, Land Acquisiti on, Educat ion, 

49 Social Services and Elderly Assistance , and Per-Capita Payments. 

50 Except as provided in this section, the Tribe, in consultation 

51 with the Secretary, shall determine the share of settlement 

52 payments to be deposited in each Trust Fund, and define, 

15 
112 

consistently with the provisions o f this section, the purposes of 

2 each Trust Fund and provlsions for administering each, 

3 specifically including provisions for periodic distribution of 

4 current and accumulated income, and for invasion and restoration 

5 o f principal . 

6 13 .1 Tribal Trust Funds: Outside Management Option. 

7 The Tribe, in consultation with the Secretary, shall be 

8 authorized to place any of the Trust Funds under professional 

9 management, outside the Department of the Interior. If the Tribe 

10 elects to place any of the Trust Fund under professional 

11 management outside and the Department of the Interior, it may 

12 engage a consulting or advisory firm to assist in the selection 

13 of an independent professional investment management firm , and 

14 it shall engage, with the approval of the Secretary, an 

15 independent investment management firm of proven competence and 

16 ~xperience established in the business of counseli ng large 

17 endcwments, trusts, or pension funds. The Secretary shall have 

!8 forty-five (45 ) days tc approve or rejec: the i~depe~dent 

J.? :r.vestment r;.anage:r.ent firrr. se:.ected by t~e :-ribe. :: the 

20 Secretary fails to appr cve or reject the firm select;;d by the 

:1 Tribe within forty·five (45) days, the investment ~4nagement fi1~ 

:2 se:~cted by the Tribe shall be deemed to hav e been approved by 

23 the Secretary. Sec ret;oria l approval of an investment management 

24 firm shall not be unre;osonably withheld and any Secretarial 

25 disspproval of an investment management firm shall be accompanied 

26 by a detailed explanation setting forth the Secretary's reasons 

27 for such disapproval . For funds placed under professional 

28 management, the Tribe, in consultation wi th the Secretary and its 

29 investment manager, shall develop (i) current operating and long· 

30 term capital budgets, and (ii) a plan for managing, investing, 

31 and distributing income and principal from the Trust Funds to 

32 match the requirements of the Tribe's operating and capital 

33 budgets . For each Trust Fund which the Tribe elects to place 

34 under outside professional management, the investment plan will 

35 provide for investment of Trust Fund assets so as to serve the 

36 purposes described in this section and in the Trust Fund 

37 provisions which the Tribe shall establish in consultation with 

38 the Secretary and the independent investment management firm . 39 Distributions from each Trust Fund sha l l not exceed the limits on 

40 the use of principal and income imposed by the applicable 41 provisions of this Agreement for that particular Trust Fund . The 

42 Tribe's investment manag&ment plan shall not become effective 

43 until approved by the Secretary. Upon submission of the plan by 

44 the Tribe to the Secretary for approval, the Secretary shall have 

45 45 days to approve or reject the plan. If the Secretary fails to 

46 approve or disapprove the plan within 45 days, the plan shall be 

47 deemed to have been approved by the Secretary and shall become 

48 effective immediately . Secretarial approval of the plan shall 

49 not be unreasonably withheld and any secretarial rejection of the 

50 plan shall be accompanied by a detailed explanation setting forth 

51 the Secretary's reasons for rejecting the plan . 

52 

16 
113 

1 Until the selection of an established investment 

2 canagement firm of proven competence and experience, the Tribe 

3 will rely on the rr~r.agement, investment, and administration of 

4 the Trust Funds by the Secretary pursuant to the provisions of 

5 this section. 

6 13.2 Transfer of Trust Funds· Exculpation of 

7 Secretary. Upon the Secretary's approval of the Tribe's 

8 investment management firm and an investment management plan, all 

9 funds previously deposited in trust funds held by the Secretary 

10 and all funds subsequently paid pursuant to Section 5 and 

11 deposited with the Secretary in trust, which are chosen for 

12 outside management, s hall be transferred to the acc ounts 

13 established by an inve stment manag ement firm in accordance with 

14 the approved invest ment management plan. Prior to any such 

15 transfe r of funds , the Secretary sha ll be excul pated by the Tribe 

16 ~rom :iability for any loss o f principal or interest resulting 

17 rom investment de cisions made by t he i r..vestmenc. advisory firm . 

:8 .''-:ly ~ust Fund tr a: :s f~rred to an ~r. v-?str; -::nt mar. ag ~ . ..:nt firm sha ll 

:s :: e re t.un;ed t.o the Se cY"eta ry upon w.t-itte:-1 r~ qt;. es t cf the Tribe 

2 0 nd the s ec re t a ry sha ll r:.anage suc h funds f o r t :-:e Ce ::ef it of the 

2 1 7ribe. 

22 l3.3 1i'.D.Q _ _l<_r;quisitiQ!l .. TLust. The Se re~a :- y shall 

23 .::stablish and main tai n a ~~catawba Land Acquisiti o n Tru st Fund," 

24 and until the Tr ibe engages an outside firm for inve stment 

25 rr.anagement of this trust fund, the Secretary shall ".anage, 

26 invest, and administ er this trust fund. The origi~al principal 

27 ~mount of the Land Acquisition Trust Fund shall be determined by 

28 the Tr ibe in consultation with the Secretary. The principal and 

29 i ncome of t his trust rr~y be used f o r the purchase o f reservati on 

30 and non-reservation land in York and Lancaster Counties pursuant 

31 to this Agreement, costs related to land acquisition, and costs 

32 of c onstruction o f in frastructure and development of the 

33 reservation. Upon acquisition of the maximum amount of land 

34 allowed for expansion of the reservation, or upon request of the 

35 Tribal Council and approval of the Secretary pursuant to the 

36 Secretarial approval provisions s e t forth in Se c tion 13.1 of this 

37 section, all or part of the balance of this trust fund may be 

38 merged into one or more of the Eco nomic Development Trust Fund, 

39 the ~ducation Trust Fund, or the Elderly Assist a nce Trust Fund. 

40 Alternatively, at the Tribe's el ect ion, the Fund may remain in 

41 e xistence after all the reservation land is pur cha sed in order to 

42 pay for the purchase of non-reservation land. 

43 The Tribe may pledge or hypothecate the income a nd 

44 princ ipal of the Land Acquisition Trust to secure ; oans for the 45 purch.;~.se o f r ese rvat ion a nd non- r e servation lands. Following 

46 ~n ac m~nt o f the i rrplEmenting legisla t ion and b e fore the final 

47 ~ro nu3l payment i s rr.~ de as prov ided in Section 5, tl':e Tribe may 

48 ledg e or hypotheca te up to 50% of the unpaid an nu al installments 

49 requ ired by Sec tio n 5 , to secure loans to finance the acquisition 

50 of reservation or non-reservation land or infrastructure 

51 improvements on such lands. 

52 

17 
114 

1 13.4 Economic Development Trust. The Secretary shall 

2 establish and maintain a •catawba Economic DevelopmE~ t Trust 

3 Fund', and until the Tribe engages an outside firm for investment 

4 ~anagement of this Trust Fund, the Secretary shall manage, 

5 invest, and administer this Trust Fund . The original principal 

6 amount o f the Economic Development Trust Fund shall be determined 

7 by the Tribe i n consultation with the Secretary . The principal 

8 and income of this Trust Fund may be used to support tribal 

9 economic development activities, including but not limited to 

10 infrastructure improvemen ts and tribal business ventures and 

11 commercial investments benefitting the Tribe . The Tribe, in 

12 con sultation with the Secretary, may pledge or hypotheca te future 

13 i ncome and up to fifty percent (50 \ ) of the principal of this 

14 Trust Fund to secure loans for economic development . However , in 

15 defining the provisions for administration of this T~st Fund, 

16 ~nd before pledgi ng o r hypothecat ing future income or principal, 

17 the Tribe and the S~cretary shall ag ree upon rules and standards 

18 for :!":ie invasion of r.-rincip~l .::.nd fo r rc:payment or =-~s~o rati on o f :. s prir;::::pal, which s~all ..:..ncoo...:-age f.!"<E-se r•..-ation of t:~:..:-.c:. pal, and 

20 provide that, if feasible. a portion o f all profits derived f rom 

21 ,;ctivities funded by principal te appli ed to repay:r.<=nt of the 

22 :-n..:st Fund. Follcwi!'lg en ct:ne:1~ of the implementi:;g legis lation 

23 and bEfor e the final annua l paym"'nt i s made as prov:aed in 

24 Section 5, the Tribe may pledge or hypothecate up to fifty 

25 percent 150%) of the un paid annual installments req-cired by 

26 Section 5 to secure leans to f inance economic devel cpffient 

27 activities of the Tribe, including. but not limited to, 

28 infrastru c ture imorovements on reservation and non ·,eservation 

29 lands. If the Tribe develops s ound lending guideli nes approved 

30 by the Secretary, a portion of the income from this Trust Fund 

31 may also be used t o fund a revolving credit account for loans to 

32 support tribal businesses or busir.ess enterprises o f tribal 

33 membErs. Availability of funds from this t rust shall not be 

34 considered in determining the el igibility of the Tribe o r its 

35 members for funds ava i lable from State or federal sources; and 

36 distributions fr om thes e trust funds may be used as matching 

37 funds, where appr o priate for other State or federal grants or 

38 l oans . 

39 13. 5 fuj <;.l! _~Q D . ..J:L\l.$~. ":'he Secretary shall establish 

40 and ~aintain a Catawba Edu cat ion Trust Fund , and until the Tribe 

41 engages an outside firm f o r investment management of this Trust 

42 Fund, the Secretary shall manage, i nvest, and admin:ster this 

43 Trust Fund. The o rig inal principal amount of this Trust Fund 

44 wi l l be determined by the Tribe in consultation with the 

4 5 Secre tary; provide d, h oweve r, that at l ea st one-third of all 

4 6 state , local, and private contributions to this settlEment s hall 

t;7 be paid into the Education Trust Fund. Income from thi s Trust 

48 Fund shal l be distri buted to the Executive Committee periodically 

49 to fund vocational, adult, special and higher educationa l 

50 assist ance programs administ ered by the Executive Co~~it tee for 

51 members of the Tribe. The principa l of this Trust Fund shall not 

52 be invaded or transferred to any other Trust Fund, nor shall it 

18 
2 

4 

5 

6 

7 

8 

9 

10 

1 1 

12 

13 

14 

15 

16 

17 

: s 

2 0 

21 

22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

32 

33 

34 

35 

36 

37 

38 

39 

40 

41 

42 

43 

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45 

46 

47 

48 

49 

so 

51 

52 

115 

be pledged o r encumbered as security. Availabillty o f fund s from t h is Trust Fund shall not be consi dered i n d et ermi ni ng t~ e 

eligi b ility o f membe r s of the Tribe t o any o ther f u nds available 

from Sta t e o r fede ral sources. 

13. 6 $_Qci a_l Servi cg§._il.illl_ Elder ty_l>.§§.is tanc;e Tru§.h. 

The Sec reta ry shall establish and maintain a Catawba Social 

Services and El derl y Assistance Trust Fund, and until t he Tr ibe 

e ngages an ou t side firm for investment management o f this Trust 

Fund, the Secretary shall rnar.age, invest , and administer the 

Social Services and Elderly Assistance Trust Fund . The o riginal 

principal amou nt o f this Trust Fund shal l be determined by the 

Tribe in c onsu ltation with the S~c etary. The income of this 

Trust Fund shall be periodically d i stributed to the Tribe to s uppo rt s o c i a l services programs, including without limitation 

hou sing, care of e lderly and physically and me nta lly disabled 

"'embers o f the Tribe , child care, supplem,;ntal r.ea l th c are , 

e:-du ca t ion, cu l t u ral pre s e r·vati on, bur i al and ceme te ry 

:r.ai :-:t-=-:-:3-nce , .?ir: d ope r a t i o :: ~ tr:ita_l gcve!.:ur:.:: r:::t. , al:. i n 

cor~5~~ e wi th &n ti em~nt =r~ ~e !~a n~ ro~e es which shall 

be e s :ablis hed by the Tr ibe . 

13 . 7 ?.~h.Qll i ta. _ _B._yrr,ent_In:§.L.tl>.llil . The Secr e t a ry 

s?-la l ! ·: t~ blish and i:"".aintai n a Cata wba Per Capit.a Payrnent Trus t. 

Fund i n an amount equal to 15 % of the s ettlemen t funds paid 

pursuant to Section 5 o f this Agreement . Until t he Tribe e ngage s 

a n ou:~ide firm fo r investment mana gement of this Trust Fund , the 

Sec!"e :. ary shall manage , i :1vest, a nd adm inister the Per Capita 

?ayrne~t Trust Fund . The principa l and income of this Trust Fund 

shal l e used ( i) t o fund a one-time per capit a settlement 

paymen t to merr~e rs o f the Tribe over the age o f 21 in an amount to be de t ermined by calculat i ng the p ro rata s hare of each member 

of the Tribe f ol l owing completion o f the tribal roll pursuant to 

Sectio n 7 of this Agr eement, and i ii ) to purchase a group annuity or make a n annu i ty investment, so as to pay the same sum to members o f the Tribe under the age of 2 1, upon attainment of su ch 

age . Each person whose name appears on the final roll of the 

Tri be published in the Federal Re aister pursuan t to Section 7 .3 

o f this Agreement will rec eive a one-t ime, non-recurring paym e~ t 

from this Trust Fund . Each enrolled member who has reached the 

age of 21 years at the time the final roll is published will 

receive the paymen t as soon as practicable after that date. 

Payments due to each member who is on the final roll of the Tribe 

but wh o di e s prio r to distribution shall be paid t o the 

benef ic iar ies de signa t e d under his will o r t o the he irs o t his 

pers ~al estate unde r the law of his d omicile if he l eaves no wi l l. Members who are 21 y ea rs of age or older as of the 

dist r i bution date will receive the p.:r capita !'ayment on the dat e 

of d istri bution . A11y me;r~er whos e name appears on the final roll 

who has not at tained t he age o f 21 on the distribution date wi l l rece ive the per capita !'ayme nt as soon as practicable after he o r 

she ha s reached the age of 21. An annuity policy or investment shall be maintained for twenty- o ne years after the date of 

ratificat ion. After payments have been made to all members of 

19 
2 

3 

4 

5 

6 

7 

8 

9 

1 0 

ll 

12 

13 

14 

:5 

16 

-.7 

2C 

22 

23 

24 

25 

26 

2 7 

28 

29 

3 0 

31 

32 

33 

34 

35 

36 

37 

38 

39 

40 

41 

42 

43 

q 

~5 

46 

47 

48 

49 

50 

51 

52 

116 

t he t r1 be entit l ed to receive payments, this Trust Fund will 

tenninate, and any balance remaining in this Fund will be merged 

into the Economic Development Trust Fund, the Education Trust 

Fund, o r the Elderly Assistance Trust Fund, as the Tribe may 

determine. 

13.8 Duration of Trust Funds. Subject to the 

provisions of Section 13.7 below, and with the exception of the 

Per Capita Payment Trust Fund, the Trust Funds established in 

accordance with this section shall continue in existence so long as the Tribe exists and is recognized by the Federal Government . The principal of these Trust Funds shall not be invaded or distributed except as expressly authorized in this Agreement. 

13.9 Transfer of Money Among Trust Funds . The Tribe, 

i n consultation with the Secretary, shall have the authority to transfer principal and accumulated income between t~e Economic 

Development and Land Acquisiti on Trust and the Social Services 

and Elderly Assistance Trust, and from either such 7rust Fund 

i:1 t o the Education 7:-ust !'und; hc ..-ever, t~ e rr:andatc:-y share of 

sta te, local , and p:-~vate sector ~n ds invested in :~e originai corpus of the Education Trust Fund shall not be tra,,sferred to any other Trust Fund. Any Trust Fund, except for t~e Educati on Tru st Fund, may be dissolved by a vote of ~wo·thircs (2/3) of t hose members of tr.e Tribe eligible to vote, and the assets in 

such Trust Fund shall be transferred to the remaining Trust 

Funds; except, however, that no assets shall be tra~sferred from 

any of the Trust Fur.ds into the Per Capita Payment 7rust .Fund; 

and no funds from the corpus of the Education Trust Fund may be transferred or used for any non - educational purposes . The 

dissolution of any trust fund shall require the approval of the 

Secretary pursuant to the Secretarial approval provisions set forth in Section 13.1 of this section. 13.10 Trust Fund Accounting by Secretary. The 

Secretary shall account to the Tribe periodically, and at least 

annually, for all Catawba Trust Funds being managed and 

administered by the Secretary . The accounting shall identify the assets in which the Trust Funds have been invested during the 

relevant period; report income earned during the period, 

distinguishing current income and capital gains; indicate dates and amounts of distriDutions to the Tribe, separately 

distinguishing current income, accumulated income, and 

distributions of principal . The accounting shall identify any 

invasions or repayments of principal during the relevant period 

and record provisions the Tribe has made f or repayment or restoration of principal. 13.11 TrJst Fund Ac count ing by Investment Management L~~- Any ou tside investment management firm engag ed by the 

7ribe shall account to the Tribe and separately to the Secretary at periodic intervals, and at least quarterly. Its accounting 

shall identify the assets in which the Trust Funds have been 

invested during the relevant period; report income earned during 

the period, separating current income and capital gains; indicate 

dates and amounts of distributions to the Tribe, distinguishing 

20 
2 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

:5 

17 

: s 

:o 

22 

23 

24 

25 

26 

27 

28 

29 

;o 

31 

32 

33 

34 

35 

36 

37 

38 

:;9 

40 

41 

42 

43 

44 

45 

46 

47 

48 

49 

so 

51 

52 

117 

current income, accumulated income, and d istributions of 

principal. Pri or to distributing principal from any Trust Fund, 

the inves tment wonagement firm shall notify the Secre tary of the 

proposed distribution and the Tribe ' s proposed use of such fund s, 

followi ng procedures to be agreed upon by the investme nt management firm, the Secretary, and the Tribe. The Secretary 

sha ll have fifceen (15) days within which to object in writing to a ny such invasion of principal; and failure to object will be 

deemed approval of the distribution. The investment management 

firm's accounting shall identify any invasions or repayments of 

principal during the relevant period and re cord provisions the 

Tribe has made for repayment o r r estoration of principal. All 

Trust Funds hel d and managed by any investment management firm 

shall be audited annually by a ce rtified public accounting firm 

approved by the Secretary; and a copy of the annual au dit shall 

be submitted to the Tribe and to the Secretary within four (4) 

months foll owi ng the close of the Trust Fund's fiscal year . .1.~. -~ Eg>ol ac err:eP~o f Ir:· ... ·es rr.~n..t_~ar:.a sg~nt fit1!: and 

~: ~Qi ~:icatiot: £ :rJVestment !<?nacc;r.ent Plan. The 'Tribe sha:.l not 

!~place t he i~vestmen t management firm app~oved by the Secretary 

wi thou t prior '" ri tten not ification to the Secretary and approval 

by t!1e Secretary of any ir,vestment rror.ageme nt firm chosen by the Tribe as a replacement. Such Secretarial approval shall be given 

o r denied in accordance with the Secretarial app roval provisions 

contained in Sect ion 13.1 of this Agreement. The Tribe and its 

investme nt ~ar.ageme nt firm shal l also notify the Secretary in .,rit ina of any revisions in the i nvestment management plan whi ch mate r ial ly increa se investment risk or significantly change the 

investment agreement made in consultation with the Secre tary. 

14. Establishment of Expande d Rese.mtion. 

14.1 Existing Reservation. The State currently holds 

in t r ust approximately 630 acres of land whi ch is ref erred to i n 

this Agreement as the "existing reservat ion ." Upon final enactment of all i mplement ing legislation , the State shall convey 

the existing reservation to t he United States of Ame r ica as 

trustee for t!1e Tribe, and the obligation of the State as trustee for the Tribe with respect to this land shall cea se. 

14.2 Expanded Reservation. 

14.2 . 1 Upon final enactment of all implementing 

legislat ion, the Secretary, after consulting with the Tribe, will 

engage a registered l and surveyor to ascertai n the boundaries and 

area of the ex i st ing reservation. In addition, the Secretary, 

after consulting with the Tribe, will engage a professional land 

planning f irm ( "planning f irm " ) to assist. the Tr ibe in developing 

land-acqu isition and land- use plans for an expanded reservation. 

The Secretary will bear the cost of all services rendered by the surveyor and the planning firm pursuant. to this Agreement, and 

neither the Tribe nor s tate o r local gove rnment will be assessed 

for any part of s uch costs . 

14.2 .2 With the assistance of the Secretary or the 

planning finn , t he Tribe may canvass land own ers in the Primary 

21 
118 

1 Expansion Zone to i dentify additional tracts that the Tribe may 

2 be able to acquire . The Tribe , with the assistance of the 

3 Secretary or the planning firm, will determine the scope of its 

4 canvass, based on those tracts it wants to acquire and those 

5 landowners it considers likely to sell . 6 14 . 2 . 3 Upon final enactment of all implementing 

7 legislation, the Secretary, in consultation with the Tribe, may 

8 purchase and place in reservation status tracts of lands that are 9 bounded by the existing reservation, or bounded by a tract that 

10 has been acquired as part of the expanded reservation and placed 

11 i n reservation status. Prior to final approval of its Non12 Contiguous Development Plan application as described below, the 

13 Secretary may obtain options upon and purchase non-contiguous (or 

14 "outlying•) tracts of lands not bounded by the existing or 

15 expa nded reservation, but no such non - contiguous tract shall be 

16 placed in r eservati on status until the Tribe's application for a 

17 Non -Contiguous Development Plan has been approved . I n assembling 

19 :racts, contiguity will not be deemed broken by s•a:e or f e deral 

19 ~oads or by public rights of way; and lands on the ~ast ern bank 

20 of the Ca tawba River opposite the reservation shall be considered 

21 contiguous to the reservation if the western boundary of any such 

22 tract joins the eastern boundary of the reservation when the 

23 boundaries of both are extended to the middle of the river. 

24 Tracts acquired for the expanded reservation shall not deny 

25 access to lands owned by non-members of the Tribe. 

26 14 . 2 . 4 When the Secretary has identified a parcel 

27 that can be purchased and has negotiated the price, he will 

28 present a description of the property and its price, together 

29 with other pertinent information and the terms of purchase, to 30 the Tribe. If the Tribe approves the purchase , the Secretary 

31 will proceed with closing after completion of a title 

32 examination , a preliminary subsurface soil investigation, and a 

33 level one environmental audit . The Secretary will bear the cost 

34 of all such examinations and will report the results to the 

35 Tribe. Payment of any option fee and the purchase price will be 

36 drawn from the Tribe's Land Acquisition Trust Fund. 

37 14.2.5 The total area of the expanded reservation 

38 will be limited to 3,000 acres, including the existing 39 reservation, but the Tribe may exclude from this limit up to 600 

40 acres of additional land if such land is (i) within rights-of -way 

41 for public roads or public utilities rendered unusable for 

42 development by the easement or right-of -way; (ii) within the 100-

43 year flood plain of the Catawba River as defined by the Federal 

44 Smergency Management Agency, or its successor; (iii) non- 45 developable wetland defined or restricted by law or regulation 

46 such that buildings, structures, and other improvements are 47 prohibited; and (iv) park and recreational land accessible to the 

48 public and dedicated permanently to public use . After completion 

49 of a comprehensive development plan, the Tribe may seek to have 

50 the permissible area of the expanded reservation enlarged to a 51 maximum of 3,600 acres, plus up to 600 acres of land as described 

52 in (i) through (iv) above. Any such expansion shall be first 

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1 approved, however, by the Secretary, and then by ordinance of the 

2 county council governing any area where the additional lands are 3 to be acquired, and by a law or joint resolution enacted by the 

4 Genera l Assembly and signed by the Governor of South Carolina . 

5 All additional lands acquired by the Secretary for the expanded 

6 reservation will be held in trust together with the existing 

7 reservation which the State is to convey to the United States. 

8 14.2 . 6 The Secretary, acting on behalf of the 

9 Tribe, will make every reasonable effort to expand the existing 

10 reservation by assembling a composite tract of contiguous parcels 

11 that border and surround the existing reservation. Before 

12 placing any non-contiguous tract in reservation status, the 

13 Tribe, in consultation with the Secretary, shall submit to the 

14 county council in any county where it proposes to purchase non· 

15 contiguous tracts for reservation status a Non-Contiguous 

16 :evelopment Pl an Application ("Application") , which shall i nclude 

17 the following: 

:a (a) A statement of the Tr!be's needs, 

:? ~Ojec:ives, and priorities for its res~rJ at ior. , includi~g 

20 ?lanning goals for (1) single and multi-family resident i al uni ts; 

21 12 ) rec reational amenities; (3) historical sites to be preserved; 

22 '3) business and industrial parks; 14 ) common areas, parks, a nd 

23 open space; (5 ) roads, streets, utilities, and tribal government 

24 and community facilities. 

25 (b) An acquisition and land·use plan, based 

<~ on the Tribe's planning g o als and objectives, showing tracts, 

27 both c ontiguous to the r eservation and not contiguous, which the 

28 Tribe has acquired or optioned, and identifying where 

29 reasonably possible those areas that t he Tribe seeks to acquire 

30 tracts to place in reservation status, in either the Primary or 

31 Secondary Expansion Zones . The acquisition and land-use plan need 

32 not be location-specific as to all uses, but should show the 

33 expanded reservation as then configured and should designate 

34 existing uses, roads, and topographi c~ l features including flood 

35 plain. Prior to submitting the acquisition and land - use plan to 

36 the county council in the county where the Tribe seeks to acquire 

37 non- contiguous tracts for reservation status, the Tribe will 

38 review the plan with county planning authorities. To avo i d 

39 speculation in land prices, examination of the Tribe's future 

40 land use plans may be restricted by the Tribe to appropriate 

41 state and local o fficials, and these officials as well as the 

42 Secretary will be bound to protect confidential aspects of the 

43 plans . The acquisition and land-use plan shoul d endeavor to mee t 44 the followi ng guidelines: (i) the plan should attempt to clust er 45 the non-contiguous parcels within the Primary Expansion Zone so 

46 that each is located as close as possible to the expanded 

47 z·eservation ; (iil the plan should endeavor to locate all non48 contiguous parcels with i n the Primary Expansion Zone, and confir:e 

49 the number of outlying parcels in all Expans ion Zones to three 

so with no more than two in any one Zone; (iii) the plan should seek 

51 to assemble only non-contiguous parcels of significant size, 

52 using 250 acres as the criterion for a minimum desirable area; 

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(iv) the plan should undertake to show that the outlying parcels 

will be used for purposes which are compatible with desired 

existing uses of the surrounding property; (v) the plan should 

follow generally accepted standards of good land -use planning, 

providing for the mitigation of environmental impacts and 

incompatible land uses, and providing traffic and utility 

planning, building setbacks and density; (vi) the plan for 

acquiring non-contiguous tracts should avoid the selection of 

sites or configurations that could leave fragments of unusable 

land or create hardship for owners of adjoining parcels. (c) A report of the Secretary's efforts, 

acting in behalf of the Tribe, to acquire contiguous tracts at fair market value, showing why it is not possible, practical, or advisable to assemble contiguous parcels into a composite tract, as provided in Section 14 .2. 4, and including the Secretary's 

certificate to this effect. The Secretary's report will include 

relevant data on tracts that the Tribe has sought b·Jt failed to purchase because of price, terms, or the seller's r~fusal . 

id ) Criteria controlling the Se~retary's 

selection of ou t:ying tracts that the Tribe will seek to purchase, provided its Appli cation is finally apprcved. Such 

cri teria shall inc lude (i) the minimum area of trac:s to be 

acquired, (ii) the location of outlying tracts in relation to the 

expanded reservation and the maximum distance between outlying tracts and the nearest boundary of the expanded reservation, 

(iii) the number of outlying tracts the Tribe intec.1s to acquire 

in each Zone, (iv) an identification of outlying tracts already 

owned or under option or targeted for acquisition if the 

Application is finally approved, (v) provisions for assuring that 

proposed uses of tracts to be acquired are compatible with 

existing uses of surrounding property and will not interfere with 

essential public services, and (vi) a means of assuring that non- contiguous tracts can be marked and readily identified as reservation property. 

14.2.7 The Tribe shall present its Application to the county council of each county in which the Secretary proposes 

to purchase non-contiguous tracts to be placed in reservation status. The county council shall make findings on the extent to which ~he Application has met the criteria set forth in Section 

14.2.6, and recommend to the Governor whether or not the 

Application should be approved. After receiving the county 

council's recommendation, the Tribe either may modify its 

Application and re-submit it to the county council, or present it to the Governor for approval. The Governor shall review the 

Application and decide whether to approve or disapprove it on the 

basis of the criteria set forth above. Neither the county 

council's approval nor the Governor's approval shall unreasonably 

be withheld, and the Governor's final action shall be subject to review under the Administrative Procedure Act. 

14.2.8 Upon approval by the Governor of the 

Tribe's Non-Contiguous Development Plan Application, the 

Secretary, in consultation with the Tribe, may proceed to place 

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1 non-contiguous tracts in reservation status, in accordance with 

2 the Plan and the provisions of this Agreement. 

3 14.3 Primary Expansion Zone . Th~ Secretary and the 

4 Tribe shall endeavor at the outset to acquire contiguous tracts 

5 for the expanded reservation in the area referred to in this 

6 Agreement as the "Primary Expansion Zone.• The Primary Expansion 

7 Zone shall lie within the area bounded by S.C. Highway No . 5 on 8 the south running northwesterly to its intersection with 

9 Springdale Road on the west and thence northeasterly to the 

10 Catawba River along Sturgis Road; thence east along the Catawba 

11 River to its confluence with Sugar Creek; north along Sugar Creek 

12 to its intersection with S. C. Highway No. S-29 · 41 (Doby Bridge 

13 Road); thence with S . C. Highway S-29·41 to its intersection wi t h 

14 U. S . Highway No. 521; thence with U.S. Highway No. 521 in a 

15 southerly direction to its intersection with S. C. Highway No . S· 

16 29·55 (VanWyck Road) on the east ; and thence with S . C. Highway 

17 No . S-29 ·55 to its int ersection with Twelve Mile Creek on the 

:a south; and thence with Twelve Mile Creek to S. C. ~~~~ way No. 5 

19 on the souch. This entire area wi l l o<: known as the "Catawba 

20 Reservation Primary Expan sion Zone." 

21 14 . 4 .Seconda_ry Expansi on Zone . The Secre:ary, in 

22 consultation with the Tribe, may elect to purchase contiguous 

2 3 tracts in an alternative area des c ribed i n this Agreement as the 

24 Se condary Expansion Zone, under the conditions provided in 

25 Paragraph 14 . 2.6 above. The Secondary Expansion Zor.<: shall 

26 consist of the area bounded by Sugar Creek on the west ; the 

27 Catawba River on the south extending to the Norfolk Southern 

28 Railway trestle on the west; thence northerly with the railroad 

29 right-of-way to its intersection with S. C. S-46·329 (Brickyard 

30 Road); thence east to s. c. S-46 · 41 (Doby Bridge Road); thence 

31 easterly along S. C. S - 46·41 to its intersection with Sugar 

32 Creek. This area shall be known as the "Catawba Reservation 

33 Secondary Expansion Zone." 

34 14.5 Other Expansion Zone. The Primary and Secondary 

35 Expansion Zones are the preferred and only approved zones for 

36 expans1on of the reservation. However, after completing a 37 compr ehensive plan of development, the Tribe may propose 

38 different or additional expansion zones; but any such zone first 

39 must be approved by the Secretary, and then by ordir.ance of the 

40 county council whe re the zone is located, and by law o r joint 

41 r esol ution enacted by the General Assembly of South Carolina and 

42 signed by the Governor. The combined area of all land 

43 acquisitions, including land in any specially approved zones, 

44 shall not exceed the limits imposed by Paragraph 14 .2. 5. 

45 14.6 .EJ.!.!:.l!..!:.JL!ti~- Prior to the Tribes• planning 

46 proce ss, the South Carol ina Depat·tmen t o f Highways a~ d Public 

47 Transportation will consult with the Tribe about pla~ned and 

48 proposed major highways within the Primary a nd Se co~~ ary 

49 Expansion Zones, including the proposed extension of Dave Lyle 

50 Boul e vard (South Carolina Highway No. 122) from the City of Rock ~1 Hill across the Catawba River into Lancaster County . In 

52 accordance with the letter to the Tribe from the City of Rock 

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1 Hill, dated August 28, 1992, the City of Rock Hill and the South 

2 Carolina Department of Highways and Public Transportation will 

3 consult the Tribe about access to Dave Lyle Boulevard Extension, 

4 and in cooperation with the Tribe, will plan and provide for an 

5 interchange assuring access to Dave Lyle Boulevard Extension over 

6 a public road in reasonable proximity to the expanded 

7 reservation. 

8 14 . 7 Future Sewage Treatment Facilities. Prior to the 

9 Tribe's planning process, the South Carolina Department of Health 

10 and Environmental Control (DHEC) will consult with the Tribe 

11 about the location of future sewage treatment facilities that may 

12 serve the Primary and Secondary Expansion Zones. Such treatment 

13 facilities include, but are not limited to, the treatment plan t 14 proposed by the Charlotte-Mecklenburg Utilities Department near 

15 the confluence of the Catawba River and Twelve Mile Creek in 

16 La ncast er County and all pump stations and transmission lines, 

17 gravity and pressure. If this or a similar regional treatment 

:e plant i s constructed here or i n the vicinity of this site , DH EC 

:~ will endeavor to ens ure that the commitments o f the Ci ty of xock 

~0 Hill, set fort h in its letter to the Tribe da ted Augu st 28, 1992. 

21 are carried out (i ) by locating t he City's sewage t ransmission 

22 lir.e to the regional t~eatment plant in reasonable p~ ximity to 

23 the reserva t ion and (ii ) by allowing the Tribe the righ t of 

24 access to such transmission line for a tap fee and on other terms 25 similar to those f o r municipalities using this treatme nt 

26 facility. The Tribe will be responsible for the design, 27 construction, operation, and maintenance of its own sewage 

28 c ollection system and f o r the cost of constructing any extensi on 

29 line and tap to the transmission line. The Tribe wil l also be 

30 subject to fees for use of the treatment system and transmission 

31 line, and subject to all regulations imposed on users of the 

32 system, but DH EC will endeavo r to e nsu re t hat such f ees, charges, 

33 and rules are the same as applied to municipal users of the 

34 system. If the Tribe is required to construct an extension line 

35 to connect with a transmission line the Tribe may charge non36 reservation users along suc h extensi on line reasonabl e tap and 

3 7 user fees. 

38 14 . 8 Voluntary Land purchas~. The power o f eminent 

39 domain shall not be used by t he Secreta ry or any governmental 

4 0 autho rity in acquiring parcels of land for the benefit of the 

41 Tribe, whether o r not the parcels are to be part of t he 

42 reservation. However, all such purcha s es shall be made only from 

43 willing sellers by voluntary c onveyances . Conveyances by private 

44 land owners to the Secretary for the expanded reservation will be 

45 deemed, however, to be involuntary conversions within t he meaning 

46 o f Section 1033 of the Internal Revenue Code of 1986, a s amended. 

47 Fi ling and recording fees and all documentary tax stamps a nd any 

48 other fees incident to the conveyance o f rea l estate will be 

49 payable in connection with such purcha s e s regardless o f whether 

50 the property is purchased by the Tribe o r by the United States in 

51 trust for the Tribe. Real property t a xe s levied for the year of 

52 closing will be pro-rated and paid at closing, or if the amount 

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of propercy taxes to be due cannot then be calculaced, propercy taxes will be estimated and escrowed at closing. Notwithstanding 

the provisions of Section 257 and 258a of Title 40, the Secretary 

may acquire re servation land for the benefit of the Tribe from 

the ostensible owner of the land if the Secrecary and the ostensible owner have agreed upon the idencity of the land to be 

sold and upon the purchase price and other cerms of sale. If the 

ostensible owner agrees to the sale, the Secretary may use condemnation proceedings to perfect or clear title and to acquire 

any interests of putative co-tenants whose address is unknown or the inter ests of unknown o r unbo rn heirs or persons subject to 

mental disability. 14.9 Rollbac k Taxe's. The purchase of any land 

specially assessed as farmland o r timbe r land by York or Lancaster 

County will not result in a rollback of property t a xes provided t he property is pla ced by the Tribe in reservation status within 

one year of the da te o f pu r chase. If any specially assessed land 

is acaui ed and not made part o f the reservation within ~ne year , 

deferred o r ro lloack taxes wi ll be due and payable without 

interesc co the county treasure r . 14 .10 Term~ nd Cond itions of Acquisition . All 

properties acqu i r ed by the Secrecary for the Tribe shall be 

acquired in fee simple . The Secretary, i n consulta tion with the 

Tribe, will be authorized to ascertain the market value of lands to be purchased; to enter into options and contracts for ~eservation and non-reservation lands upon such conditions as he 

deems appropriate; to acqu ire, when necessary, the reversionary 

fee in leases and the remainder fee in life escates; to acquire 

lands subject to leases and timber interests and subject to 

easements, covenants, and restrictions that will not impair 

usefulness of the lands for the Tribe's purposes. The Secretary, 

accing in behalf of the Tribe and with ics consenc, is also 

auchorized to execute and deliver purchase-money notes, 

mortgages, and other debt and security inscruments, to acquire 

both reservation and non - reservation lands. When property is 

acquired for the Tribe through purchase-money financing, and 

encumbered by a purchase- money mortgage, the mortgagee shall have 

the right to foreclose under South Carolina law in the event of 

default as defined in the note and mortgage. 

14.11 Easements Over Reservation. The acquisition of 

lands for the expanded reservation shall not extinguish any 

easements or rights- of-way then encumbering such lands unless the 

Secretary or the Tribe enters into a written agreement with the owners t ermi nating such e asement s or rights-of-way. The 

Secre tary, with the approval of che Tribe , shall have the power 

to grant or convey easements and rights- of -way for public roads, 

public utilities, and other public pu rposes over the reservation. 

Unl ess the Tribe and the State agree upon a valuation formula for 

pri cing easeme nts over the reservation, the Secretary shall be 

subject to proceedings for condemnation and eminent domain to acquire easements and rights of way for public purposes through 

the reservation under the laws of the State of South Carolina in 

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1 circumstances where no other reasonable access is available. 

2 With the approval of the Tribe, the Secretary may also grant 

3 easements or rights-of·way ove r the reservation for private 

4 purposes; and implied easements of necessity shall apply to all 

S lands acquired by the Tribe , unless expressly excluded by the 

6 parties. 

7 14.12 Jurisdictional Status. Only land made part of 

8 the reservation shall be governed by the special jurisdictional 

9 provisions set forth in this Agreement. 

10 14.13 Sale and Transfer of Reservation Lands. At the 

11 request of the Tribe, and with approval of the Secretary, the 

12 Secretary may sell, exchange, or lease lands within the 

13 reservation, or sell timber or other natural resources on the 

14 reservation . The proceeds from these transactions may be used to 

15 re-invest in other land contiguous to the reservation or in 

16 improvements for the common use of the Tribe on the reservation; 

17 or if the Tribe deems it appropriate, the proceeds may be placed 

: a in the Educat ion Trust Fund, the Elderly Assistance Tru st Fund, 

:9 the Land Acquisition Tru st Fund, or the Economic Development 

20 Trust Fund. At the request of the Tribe and with the approval of 

21 the Secretary, the Secretary may exchange like·kind parcels of 

22 land on the reservation for con tiguous parcels of land not 23 currently part of the reservation. Notwithstanding the 

24 provisions of this paragraph, the area of the reservation shall 

25 not exceed the limits imposed by Section 14.2.5. 

26 14.14 Time Limit on Acquisitions. All acquisitions of 

27 contiguous land to expand the reservation or of non-contiguous 

28 lands to be placed in reservation status shall be completed or 29 under contract of purchase within ten years from the date the 

30 last payment is made into the Land Acquisition Trust; except, 

31 however, that the Tribe may continue to acquire parcels which are 

32 contiguous to either of two designated reservation areas for a 

33 period of twenty years after the date the last payment is made 

34 into the Land Acquisition Trust. 

35 14.15 Leases of Reservation Lands. The provisions of 

36 25 U.S.C. §415 shall not apply to the Tribe and its reservation. 

37 The Tribe shall be authorized to lease its reservation lands for 

38 terms up to but not exceeding ninety-nine (99) years. 

39 14.16 Non-Applicability of BIA Land Acquisition 

40 Regulations. The general land acquisition regulations of the 

41 Bureau of Indian Affairs, currently contained in 25 C.F.R. Part 

42 151, shall not apply to the acquisition of lands authorized by 

43 Section 14 of this Agreement. 

44 

45 15. Non-Reservation Properties. 

46 15.1 ~quisition of Non-Re~rvation Properties. The 

47 Tribe may draw upon the corpus or accumulated income of the Land 

48 Acquisition Trust or the Economic Development Trust to acquire 

49 parcels of real estate outside the reservation, including 

50 properties ancestral or historic to the Tribe and properties to 51 be held by the Tribe for investment or development. Such 

52 properties may be held in fee simple by the Tribe as a corporate 

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1 entity or held in trust by the United States as trustee for the 

2 Tribe, but in either case, these parcels will not be part of the 

3 reservation, or governed by the special jurisdictional provisions 

4 set forth in this Agreement, or subject to any other special 

s attributes on account of their ownership by the Tribe as a 

6 corporate entity or by the Secretary as trustee for the Tribe, 

7 except as provided in paragraph 15.2. If the ownership of any 

8 such properties by the Secretary or the Tribe, or any sub-entity 

9 of the Tribe, removes the property from ad valorem taxation, then 

10 payments shall be made in lieu of taxation that are equivalent to 

11 the taxes that would otherwise be paid if the property were 

12 subject to levy·. Notwithstanding any other provisions of law, the 

13 Tribe may lease, sell, mortgage, restrict, encumber, or otherwise 

14 dispose of such non-reservation lands in the same manner as other 

15 persons and entities under State law; and the Tribe as land owner 

16 shall be subject to the same obligations and responsibilities as 

17 other persons and entities under State, federal, and local law, 

1S including local zoning and land use laws and regulat ions. 

l9 Ownership and transfer of non-reservation parcels shall not be 

20 subject to federal law restricting on alienation, including, but 

21 not limited to, the restrictions imposed by Federal common law 

22 and the provisions of the Trade and Intercourse Act of 1790, Act 

23 of July 22, 1790, and all amendments thereto. 

24 15 . 2 Jurisdiction on Non-Reservation Properties. All 

25 non-reservation properties, and all activities conducted on such 

26 properties, shall be subject to the laws, ordinances, taxes, and 

27 regulations of the State and its political subdivisions, except 

28 as pr ovided in Section 16: and this general jurisdictional 

29 principle shall extend 0oth to non-reservation properties held by 

30 the Tribe as a corporate entity and to any properties held in 

31 trust by the United States designated as non-reservation property 

32 when acquired. The laws, ordinances, taxes, and regulations of 

33 the State and its subdivisions shall apply to such non- 34 reservation properties in the same manner as such laws, 

35 ordinances, taxes, and regulations would apply to any other 

36 properties held by non-Indians located in the same jurisdiction. 

37 However, non-reservation land may be eligible for federal grants 

38 and other federal services for the benefit of Indians. 

39 

40 16. Games of Chance. 

41 16 . 1 Inapplicability of Indian Gaming Reaulatory Act. 

42 The Indian Gaming Regulatory Act, 25 U.S.C. Section 2701, et. 

43 seq ., shall not apply to the Tribe. This Agreement, and the 

44 implementing legislation passed pursuant to this Agreement , and 

45 all laws, ordinances, and regulations of the State of South 

46 Carolina, and its political subdivisions, shall govern the 

47 regulation of gambling devices and the conduct of gambling or 48 wagering by the Tribe on and off the reservation, except as 

49 specifically provided in this section. 

50 16.2 Conduct of Bingo Games by Tribe. The State shall 

51 govern the conduct of bingo under Title 12, Chapter 21, Article 

52 23 (the "Bingo Act"), South Carolina Code of Laws, 1976, as 

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1 ame nded, and any amendments thereto hereafter adopted, including 

2 any regulat~ons or rulings issued in relation to Title 12, 

3 Chapt er 21, Article 23, except as provided by the special bingo 

4 lice nse to which the Tribe shall be entitled in accordance with 

5 this section if it elects to sponsor bingo games under the 

6 s pec ial license. For purposes of conducting the game of bingo, 

7 the Tribe shall be deemed a non-profit organi~ation under the 

8 Bingo Act. The Tribe may be licensed by the South Carolina Tax 

9 Commission to conduct games of bingo either under a regular 

10 license allowed non -profit o rganizations or under the special 

11 lic ense provided in this section, but not both, and either on the 

12 reservation or off the reservati on, but not both. 

13 16 . 3 ~ecial Bingo~- The Tribe may apply to 14 the South carolina Tax Commission for a special bingo license in 

15 l ieu of any of the licenses a u t horized by Title 12, Chapter 21, 

16 Art i c le 23 of the Sout h Carolina Code of Laws, 1976, as amended. 

17 The s pecial license will be gra nte d it the Tribe complies with 

: 8 licensing requi r ement s and procedure s . The spe cial license sha l l ., be identi ca l i n all r espects to the cl a ss o f license pe rmitting 

20 the highest leve l of prizes a l l owed by law, and shall carry the 

21 same privileges a nd duti e s as the class of license pe rmitting the 

22 highest l evel of prizes provi ded by law, and that : 

23 16 .3. 1 Th e fre quency o f sessions shall be 

24 determined by the Executive Commi ttee, but shall be no more 

25 fr equent than six sessions per week, with sessions on Sundays 

26 prohib i t ed unl ess St a te law othe rwise expressly allows Sunday 

27 sessi ons . 

28 16 .3. 2 The amount of prizes offered per session 

29 shall be determined by the Tri be, but shall not be greater than 

3C $10 0, 000 . 00 for any game . 31 16 .3. 3 The Catawba Indian Tribe shall pay, in 

32 l ieu of any admissi on or head tax, any license tax, or any other 

33 b ingo tax, a special bingo tax equal to lOt of the gross proceeds 

34 r ece ived during each session. All revenues derived from the 

35 s pe cial bingo tax shall be collected by the South Carolina Tax 

36 Commission and deposited with the State Treasurer for the benefit 

37 o f the General Fund of South Carolina. 

38 16 . 3.4 State law shall govern the percentage of 

39 the gross proceeds t a ken in by t he Tri be during a cal e ndar 

40 quarter that must be returned to the players in the form of 

41 prizes . For purposes o f this section, •gross proceeds' does not 42 inc l ude the 10\ spe cial bingo tax. 43 16 . 3 . 5 The Tribe shall be entitled to one bingo 

44 l i cense, and tha t li c ense may be us ed t o operate at one location 

45 only, a nd shall no t be assignable to any other entity or 

46 ind ividual . 47 16 . 3 . 6 The ne t proc e eds de rived by the Tribe fr om 

48 the conduct o f bingo may be u s ed fo r any pu r pose a uthorized by 

49 t he Tribe . 50 16.4 Spec ial Li cense Sites. The Tribe may operate 

51 unde r the s pecial bingo license e ither off the reservation or on 52 the r e servation at i ts e lec ti on , but not both. If the Tribe 

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1 chooses to operate under the special bingo license off the 

2 reservation, it shall locate in an area which is within the 

3 144,000 acre Catawba claim area and zoned compatibly for such 

4 commercial activities. The Tribe shall consult with the city or 

5 county where the facility is to be located before the site is 

6 selected. 

7 16.5 Sponsor. Promoter and Qyersight. The sponsor and 

8 promoter of the bingo games shall be the Catawba Indian Tribe; 

9 and all profits gained from the enterprise shall accrue to the 

10 Tribe. The South Carolina Tax Commission, or any successor 11 regulatory body or agency, shall have the power to administer, 

12 oversee, and regulate all bingo games sponsored and conducted by 

13 the Tribe, and to audit and enforce the operation of such games 

14 and assess and collect taxes, interest, and penalties in 

15 accordance with the laws and regulations of the State as they 

16 apply to the Tribe. The South Carolina Tax Commission or its 

17 regulatory success o r shall have the right to suspend or revoke 

18 t~e Tribe's Eingo license or Special Bingo license :f thE Tribe 

19 violat es t11e law with regard to conducting the game; however, the 

20 Tax Commission or its regulatory successor shall first be 

2: "equired to notify the Tribe of any violations and ~rovide the 

22 Tribe with an opportunity to correct any violations before its 

23 license may be revoked. Failure to pay bingo taxes, .interest or 24 penalties may be grounds for license revocation. 

25 16.6. Any license of the Tribe to conduct Bingo shall 

26 be revoked if the game of Bingo is no longer licensed by the 

27 State. If the State resumes licensing the game of Bingo, the 

28 Tribe' s license or special license shall be reinsta ted provided 

29 the Tribe complies with all licensing requirements and 

30 procedures. 

31 16.7. Should the Tribe obtain a license as provided 

32 herein and operate a facility, the Tribe may install for play in 

33 the same building video poker or similar electronic play devices 

34 as allowed unde r the law of the State. 

35 

36 17. Governance and Regulation of Reservation. 

37 17.1 Build ing Code. The Tribe shall incorporate by 

38 reference and adopt the York County Building Code, and any 

39 ame d~ents thereto hereafter adopted, and may contract with York 

40 County, South Carolina for the services necessary to enforce, 

41 inspect, and regulate compliance with its Building Code. Such 

42 services shall be provided at no charge by York County as an in· 

43 kind contribution toward settlement. In addition , those local 

44 jurisdictions which exact any f ee. permit, or inspection services 

45 shal l wa ive the fees otherwise charged for building permit or 46 inspec tion se1~ices on the reservation. The Tribe shall be 

47 empowered, but not required, to adopt building code provisions to 48 be applied on the reservation in addition to, but not in 

49 de rogation o f, the York County Building Code, as amended from 

50 time to time. 

51 

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1 17.2 Environmental Laws . All federal, state, and 

2 l oca l environmental Jaws and regulati ons shall apply to the Tribe 

3 ~nd to the reservati on, and shall be fully enforceable by all 

4 rel evant federal, state, and l ocal agenc ies and authorities. 

5 Simi l arly, all requirements that a license , permit , or 

6 certificate be obtained fr om any federal, state, o r loc al agency 

7 shall also apply to the Tribe and to the reservation. This 

8 provision shall include all such laws and regulations now in 

9 effect and all amendments adopted hereafter, including without 

10 limita tion those laws listed in Exhibit C. This provision shall 

11 extend without limitation to all environmental laws and 

12 regula tions adopted in the future. The Tribe, the Executive 

13 Committee , and all members of the Tribe shall have the same 

14 status unde r all such laws as o ther citizens o r groups o f 

l5 ci t izens to conte st, ob ject to, or intervene in any procee ding or 

16 action in which environmental regulati ons are being made , 

17 adjudicated, or enforced, o r in wh ich li censes, pe rmits, or :8 certi:icates of convenienc e and necessity are being :ssued by any ::. 9 agency of fede ral, state, c r local goverr..~..,;'T;enr.. Notw:i t.hstanding 

.o~· any o tt.e r provisions of law new o r hereafter adopted , the Tribe 

21 shall not have special or preferential status in any such a ction 

22 o r proceeding , or rights, privileges, or standing ar.y g reater 23 than th e rights, privileges, and standing all owed other c itizens 

24 or citizen o r gan izations. The Tribe shall have the authority to 25 impose regulat i ons applying highe r e nvironmental standards to t he 

2 6 r eser<at i on than thos e i mposed by fed eral or state law o r by 

27 local governing bod ies; but such tribal regula t ions sha ll apply 

22 only to the reservati on, and not to property surrounding t he 

29 reser~atio n or non-reservation prope r ty , o r to the use o f the 

30 Catawba Rive r. Such tribal regulati ons shal l also no t apply to 

31 activities o r uses off the r eservation , even if those ac tiviti e s 

32 affect air quality on t he reservation . The Tribe shall not be 

33 authorized to invoke sovereign immunity against a ny sui t, 

34 proceeding, or environmental en f o r cement acti on involving any 

35 federal , state, o r l ocal environmental laws or r egul a tions, and 

36 shall be subject to all enforcement orde rs, restraining o r de r s , 

37 f e es, f ine s, injunc tions, judgments a nd e ther c orr ective or 38 remedial measure s i mposed by such l a ws. Pr o v ided, howeve r, it is 

39 not the intent of the parties that the Tribe, or the Sec re tary 

40 when act ing on behalf o f the Tribe, be required to comply with 

q1 duplicative federal laws a nd regulations tha t would no t app l y to 

42 Triba l or Sec retarial ac t ions if these act i o ns we re taken i nstead 

4 3 by a privat e corpora ti on ; and, recognizing t hat t his provision 

44 ~ay te insuf fi cient to insure fulfill men t of this intention , it 

.; 5 is a 1 so the int ent o f the part i e s to seek, if necessary , in the 

46 impl~m~ nt in g legislat i on a provision suff ici ent to fulfill the 

4 7 pa.rti e s ' i ntention in this ro::gard. 

42 17.3 £],anni.no and Z.Q!liD.9:· With respect to any land 

49 use regu lat ion within the reservation, the Tribe shall have the 

50 power to adopt a nd enforce a land use plan after consul tation 

51 wi th York County and Lancaster Coun ty, fo r those parts o f the 

52 reservation located in these respective juris di ctions . The Tribe 

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and the affected governing bodies shall follow the consultative 

procedures created for settlement of the claim of the Puyallup 

Tribe i n the State of Washington, as set out in House Report 101-

57, pages 161-64. In determining whether to permit the 

construction of any buildings or improvements on t he reservation, 

the Tribe shall consider (1) the protection of established o r 

planned residential areas from any use or development that would 

adversely affect residential living off the reservation; (2) 

protection of the health, sa f ety, and welfare of the surrounding 

community; and (3) preservation of open spaces, rivers, and 

streams, and provision of public facilities to support 

development. 

17.4 Health Co des. All public health codes of the 

State of South Carolina and any county in which the reservation 

is loca t ed shall be applicabl e on the reservation. 

17.5 Hu nting and Fishiqg. Hu nt i ng and f i shing, o n or 

of f the re s e rva t i on, shal l be conducted in complianc e wi t h the 

ws and regu l at i on s of the S t a t e o f South Ca rolina. ~~ ::\bE: s o f 

: he Tr i be sha ll be 1bje ct t o all stat e and l o cal ~gul tic~ s 

·?ove rn:ng hu nt ing and fis h i ng bo th on and o ff the rvati n, 

exce pt, howe ver, du ri ng t he peri o d establ i s h ed by S~c io n 3.2 of 

t his Agree ment me mb e rs o f the Tribe shall b e entito e d to p e rsonae 

state hunting and fishing l icenses without payment of f ee s. 

However, the Tribe and its members shall be subject to the same 

fees and requirements as all other citizens of the State in 

applying for and obtai ni ng commercial hunting and fishing 

li cen s e s. The Tribe sha ll have the authority to impose hunt i ng, 

fish i ng, and wil dl ife rul e s and regulations on the reservati on 

that are stri cter than tho se adopted by the State. 

17.6 parian Rights. The litto ral and ripari an 

rights of the Catawba Indian Tribe in the Catawba River, o r in 

a ny other stre ams or waters crossing their lands , shall n o t 

d i ffer i n any respect from the rights of other owners whose land 

abuts no n-t i dal bodies of water or non-tidal water c ou r ses in 

South Carolina. The rights and obligations covered by this 

p r ovision shall i n cl u de but not be limit e d to: (i) t he t i tle t o 

th e river b ed; ( ii ) the right to flood, p o nd, dam, and d ivert 

wat e rs o f the river or its tributaries; (iii) the right to build 

docks and p ie rs in the river; (iv) the right to f i sh i n the river 

or its tri butaries; and (v) the right to discharge wa st e or 

withdraw water from the river or its tributaries. The 

reservation is loc ated on the Catawba River between two 

t'.ydroP.l ec tric r e s e rvo irs 1 icensed by the Fede ral Er:e r gy 

Ke gllla tol"y Comrni s si o n ( 1'FERC 11 }. The Tr i b e s hall ha· ... ·e the same 

r i ghts and s tandi n g a s all o ther riparian c wners a nd us e r s o f th~ 

Cato wba Rive r t o i nt ervene in a ny procee d i ng o r o t t erwise to 

cont e s t o r objec t to pro p o sed a c tio ns or determinat ioros o f F'ERC 

o r o f any othe r g ov e r runenta l ag e ncy, commiss i on , o r cour t , 

whe t her fede ral, s ta te, o r loc al, with resp ec t to t he u s e o f the 

Cat awba Rive r a nd its basin, including without l i mitation, 

with dr a wal o f water from the river; navigability on t h e river; 

and wate r p ower and h ydroe l ec tric usage of t he river . 

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Notwithstanding any other provisions of law effective new or 

hereafter adopted, the Tribe will have no special right or 

preferential standing greater than other riparian owners and 

users of the Catawba River to intervene in or contest any such 

agency action, determination , or proceeding, including 

specifically any actions or determinations by FERC regarding the 

licensing , use, or operation of the waters impounded by the 

existi ng reservoirs above and below the reservation . 

These qualifications shall apply to the e xisting reservation, to 

lands acquired for the expanded reservation , to any othe r lands 

acquired by or for the benefit of the Tribe , and to no nreservation lands. 

17 . 7 Alcoholic Beveraoes. Alcohol shall be prohibited 

on the reservation unless the Tribe adopts laws permitting the 

sale, possession, or consumption of alcohol on the eser~ ation . 

In such case, the Tribe shall adopt ~s or ordinances tha t 

inc8rporate all state standards and r~gulations regarding hours, 

s3.1es to m:.nors, E:-rnpi cymer;t, cons:.m·,pti.on, possession, and 

s:.ar;dard s for :icer.sir.g; -::xcept. , !:o;..·Ever, that the :-r:be rr.ay 

i~p se stricter standards and regulations than those prescribed 

by state law. I f beer, wir.e, and liquor are sold on the 

:~servation, licenses must be issued by the State in acco rdance 

with South Carolina law; and all bee r, wine, and liquor taxes 

will be paid to the State in accordance with South Carolina law. 

26 18 . IE~~Jj . ..Q..D. 

27 18.1 lDID £1JL.T.riba_t__QQ~nm~JlLI<>1\_Sli.Lt!'> Act. The 

28 Indian Tribal Government Tax Stat us Act, 26 U.S.C Section 7871, 

29 shall apply to the Tribe and its reservation. In no event, 

30 however, may the Tribe pledge or hypothecate the income or 

31 principal of the Education or Soc ial Services and Elderly Trust 

32 Funds or otherwise use them as security or a source of payr:-.ent 

33 for bonds the Tribe may issue . 

"4 18.2 General Tax Liabili.ty. The Tribe, its merr~ers, 

35 the Triba l Trust Funds, and a ny other persons or entities 

'6 affiliated with or owned by the Tribe, members of tr.e Tribe, or 37 t.he Tr)ba l Trust Funds, whether resident., locat ed , or cioing 

39 business on the reservation o r off the reservation , shal l be 

39 subject to all federal, state , and l ocal income t axes, sales 40 taxes, real and p e rsonal property taxes , excise taxes, estate 

41 taxes, and all other taxes , licenses, levies, and fe es , except as 

42 expressly provided in this Agreement . Any other person or 

43 business entity which locates, operates , or does business on the 

,;4 :ceservation shall be subject wi thout ex c eption to all f ·:..leral, 

45 state, and local taxes , l i censes, and fee s , unless othe r wise 

46 expressly provided in this Agr eem.;,n t. To the extent t.ha t the 

47 Tribe may be subject to any taxes under this section, the Tribe 

48 shall be taxed as if i t were a business corporation incorporated 

49 unde r the laws of South Ca rolina unless otherwise expressl y 

50 provided. 

51 18.3 Bingo_ Taxes. If the Tribe elects to sponsor and 

52 conduc t games of bingo under the provisions of Section 16 of this 

34 
131 

1 Agreement, the gross revenues generated by such bingo games will 

2 be subject to the 10\ tax levy specified in Section 16 

3 exc lusively, and no other federal, state or local taxes shall 

4 apply to revenues generated by the bingo games which are received 

5 by the Tribe . If the Tribe elects to sponsor and conduct games of 

6 bingo under a regular license allowed non-profit organizations 

7 under the Bingo Act, the Tribe will be taxed as a non-profit 

8 corpo ration under the Bingo Act with respect to all revenues 

9 generated from the bingo games. 

10 18.4 Income Taxes. 

11 18 .4 .1 The Tribe and Tribal Trust Funds. Income 

12 of the Tribe, subdivisions and agencies of the Tribe, including 

13 entities owned by the Tribe or the Federal Government and the 

14 Tribal Trust Funds, and tax revenues collected by t he Tribe by 

15 levy o r a ssessment, shall be non - taxable f or federal income tax 

16 pu rpose s to the extent provided by fed eral law for cec og nized o r 

1 7 rest ored Indian Tribes. Any tribal income and tax r~ venue s which 

lE are non-taxable for fede ral income tax purposes because of the 

~9 Tribe's tat~s as a recognized o r restored I ndian ~~ be stall 

20 also be non-taxable for purposes of any state a nd :ocal taxes on 21 inc ome. 

22 18.4.2 Members of Tribe. rr~ers of the Tribe 

23 shall be l i able for payment of federal, state and local income 

24 taxe s to the same extent as any other person in the state, except 

25 that income e arned by members of the Tribe for work performing 

26 gove rnmental functions solely on the reservation shall be exempt 

27 fr om state taxes during the period established by Section 3 . 2 of 

28 this Agreement, and income e arned by members o f the Tribe from 

29 the sale of Catawba Indian pottery and artifacts, whether on or 

30 off the reservation, which are made by members of the Tribe, 

31 shall be exempt from state, federal, and loca l income taxes. For 

32 purposes of federal income taxes, the income of members earned on 

33 th ~ reservation shall be taxable to the extent provided by 

34 federa l law for members o f recognized o r restored Indi an tribes. 

35 No fu nds distributed per capita pursuant to Section 13 . 5 shall be 

36 subject at the time o f distribution to federal, state or l ocal 

37 income taxes; however, income subsequently earned on shares 

38 distributed to members of the Tribe shall be subj ect to the same 

39 federal, state, and local income taxes as o ther persons in the 

40 state would pay. Compensation paid to Executive Committee members 

41 shall be subject to federal payroll taxe s to the extent provided 

42 by Federal law f or membe rs of tribal councils of rec ogni zed o r 

43 r estored Indian tribes . 

44 18.4.3 Taxat i orLQJ___Qt_h_r:_r.§__QfL .. t.he Res~ rva. ~_i_ n. 

45 Any pe rson o r other entity which is not exempt from i ncome taxes 

46 under Sections 18.4.1 or 18.4.2 sha ll be liabl e for all fed eral , 

47 s tate, and local income taxes otherwise due r ega rdless of wh ether 

48 or not they are do ing business on the Re serva t ion . 

49 18 .5 Real Property Taxes. 

50 18.5.1 Exemption o fJxiba_1 Real Pxooer_cy. All 

51 lands held in trust by the United Stat e s for the Tribe a s part of 

52 the reservation shall be exempt from al l property taxes levied by 

35 
132 

1 the State or by any county and school distri c t or special purpose 

2 district . All buildings, fixtures, and real property improvements 

3 owned by the Tribe or held in trust by the United States for the 

4 Tribe on the reservation shall be exempt fr om all property taxes 

5 levied by the State o r by any county and school district or 

6 special purpose district during the period established in Section 

7 3.2 of this Agreement . If the Tribe owns a partial int e rest in 

8 property or a business, the property tax exempti o n provided in 

9 this section is applicable to the extent of the Tribe's interest 

1 0 du ring the period established in Section 3.2. 

11 18 .5.2 Exemption of Members' Real Property. 

12 Single and multi-family residences, including mobile homes, that 

1 3 are situated on the reservation shall be exempt f rom all property 

14 taxes levied by the State o r by any county or specia l purpose 

15 distri c t, p r ovided that (i) they are owned by t he Tribe, membe rs 

16 o f the Tribe o r Tribal Trust Funds du r ing the period established 

17 by Section 3.2 of this Ag reement , and (ii) occupied by members o f 

:a the Trobe or the survivi ng spou se o f a dec eased mecber o f the 

19 J~ib e. For purposes o f th is section , resident i al p:cpe rty stal l 

20 be deemed cwned by a rr.e!Pbe r o f the Tribe if the member or the 

21 surviv ing spouse of a member owns at least a one-half undivided 

22 i~te rest in the property; a nd property shall b e d eemed oc cupied 

23 by members of the Tribe if at least one member o r the survivi ng 

2 4 s pouse of a member is liv ing in the single-family residence or in 

25 each unit of any multi-family residence. 

26 18.5.3 Taxation of Other Real Pro c erty. All 

27 buil dings, fixtures, and real property improvements located on 

28 the reservation whi ch are not e xempt from real pr operty taxes 

29 under sections 18.5.1 or 18.5.2 shall be subj ect to all property 

30 t axes levied by the State , county , and any schoo l district or 

3 1 spec ial purpose to the same ex tent that s imilar buildings, 

32 fixture s, o r improvements are assessed and taxed el s e whe re in the 

33 same jurisdiction . However, the unde rlying land or l easehold in 

34 t he l and will not be subjec t t o r eal property taxes. All 

35 buildings, f ixtures, and improvements subject to r e al property 

36 taxe s shall be eligible for any tax aba temen t o r t empora ry 

37 Exemption all owed new business investments to the same extent as 38 similar properties qua l ify f o r exemption or abatement i n the same 

39 county. 

40 18.5.4 Tr i.P..i'.L)2 ~rty_I..i'l.:X_~. The Tribe shall 

41 be authorized to l e vy taxes on buildings, fixtures, improvements, 

42 and personal prope r ty loca t e d on the res ervation , eve n t hough 

43 s uch properties may be e xc.ompt f rom property taxat i on by the state 

44 o r its subdivisi o ns, and ma y u se such tax revenu es fo r 

45 appropriate tribal purposr= s . The Tribe r..ay a1so e x'=!TIP t o r abate 

4 6 any s uch taxes. York and Lanca ster CotJ il ti es and the Sout h 

47 Carol:ina Tax Corrun i ssion wi l l provi de the necessary assistance to 

48 the Tribe i f the Tri be c hooses to assess triba l real property 

49 taxes as i f they were p roperty taxe s imposed by a po lit i c a l 

50 subdiv i sion. 

51 1 8.5.5 Til2@tion_ 0 L)'IQ.!J -Re s e rv...flti o [l Pr o..Q.<e.J: tieJ;. 

52 Real property and i mp rov emen ts own ed by t he Trib e o r by members 

36 
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6 

7 

8 

9 

10 

ll 

12 

13 

14 

15 

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21 

22 

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2~ 

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29 

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41 

42 

43 

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of the Tribe or by both , and not located on the reservation s hall 

be s ubject to all property taxes levied by the State and the county and by the school d i stri c t and any special purpose 

districts or other political subdivisions where such property is 

located. 18.5 . 6 Fee in Lieu of Taxes on Non-rese rvation ~r perty Held in Trust. All non-reservation real property held 

1n trust by the Secretary shall be subject to the payment of a fee or fees in an amount equivalent to the real property tax that 

would have been paid to the applicable taxing authority had the 

property not been held in trust . 18 . 6 Personal Property Taxes. 18 . 6 . 1 Personal Property Owned by Tribe. All 

personal property owned by the Tribe during the period 

established by Section 3.2 of this Agreement and used solely on the reservation shall be exempt from personal property taxes . Except, however, motor vehicles owned by the Tri be during the 

peri od shall be Exempt from persor.a l prope rty taxes eve n i f us ed 

o ff t he reserva tion . 

18 . 6. 2 _Etlsonal Prooert_y_Qwned by Triba l Membe rs. All personal property owned by members of the Tribe shall be 

subject to personal property t axes levied by the State and by the county, s c hool d istrict, special purpose d i strict, and other 

subdivision of the State, where the prope rty is deemed to be 

located. 18 .6. 3 Ta xa_tion of Othe .r Pers n.i!l.__E~.ty_,_ All 

personal property located on the reservation wh ich is not exempt 

fr om personal property taxes under Sec ti on 1 8 . 6 . 1 shall be 

subject to personal property taxes levied by the State, county 

and any school or special purpose distri c t encompassing the 

reservation to the same extent that similar personal property is 

assessed and taxed e lsewhere in the jurisdiction . 18 . 6 . 4 For purposes of Sections 18.5.1 through 

18.6.3, the person or entity who is liable under South Carolina 

property tax law for payment of property taxes is considered the owner of the prope rty . 18.7 Levv against property f or failure to pay Prooerty 

Taxes . If any taxpayer subject to property taxes under paragraph 18 . 5 . 1 through 18.6.3 fails to pay the t axes, the county shall 

have the power to levy against any pers onal property subject to personal property taxes owned by the taxpayer within the county 

whether on or off the rese rvation in or der to satisfy the taxes due . If this levy against the personal property i s not suffici ent to satisfy the tax lien, t he county may cont ac t t he Sta te a nd t he 

State will levy against other ta xable p r operty o f t he t axpayer in 

the State and remit any proceeds to the county which is owed t he tax . If the county cannot satisfy its l i e n, t he count y may 

require the Tribe to cease all owing e t a xpayer to do bu s i ne s s on the Rese ~ati n. However, if the taxpayer is in bankruptcy, 

the bankruptcy statutes s hall apply to t his provision. In no event may the count y seize real property locat ed on t he 

reservati o n . 

37 
134 

1 18.8 Vehicle License Fees. The Tribe and its merr~er s 

2 shall be subject to all li cense and registration fees and 

3 requirements, all periodic insp€ction f ees and r equir ements, and 

4 all fue l taxes imposed by fed eral, sta te, and l ocal governments 

5 on motor vehicles, b oats, and a i rplanes, and othe r means o f 

6 conveyance. 

7 18.9 Sal es and Use TaxPS. The Tribe, its members , and 

8 the Tribal Trust Funds shall b e liable for the payment of all 

9 state and l ocal sales and use taxes to the same extent as any 

10 othe r person or entity in the state , exce pt as specifically 

11 provided bel ow. 

12 18.9.1 Triba l Purchases Exemption. Purchase s rrade 

13 by the Tribe for tribal governmen t fun ctions during the period 

14 est ablished b y Section 3.2 of this Agre€ment shall be exempt from 

:5 state and l oca l sal es and us e taxes . 

:6 18.9. 2 !;: a.r awb..<LI' R.t.t.~_;:y_I_li_~ ot iQD. Catawba pot t ,ry 

:7 bnd a r tifa cts made b y members o f rte 'ribe and s ol d o n or o ff the 

:E :: 12So::-!:'"'w·atior: by the rib ~ c r r.- ~rntc:- s c : the -:-r·ibe sf:ol:!. b e :: ~:~ ::_ 

:9 ::rorr. s:. a~e a nd local s al1?S a;·~d us e tax. 

20 18.9.3 :;[r ib_a_). __ : __ e...§ _I3. x. During t f"te period 

21 established by Secti on 3.2 of h~s Ac:-e eme nt, the sal e on the 

22 reseDfation o f all o ther it.e:r.s, he :::t~r rr.ade on O !' off the 

23 reservation , shall be ex~mpt f rom sta::: e and local s ales and use 

24 taxes, but sha ll be subjec t to a special t ribal sales tax levied 

25 by the Tribal Council equal t o tte sta te and any l o ca l sal es tax 

26 tt.at would be levied in the jurisd icti on enc cmpassing the 

27 reservation but f or this exemption . Th e South Carolina sa l es and 

28 use tax laws , r egulation s , and ruli ss shall apply t o the spec:a: 

29 tribal sales tax, and the special tribal sales tax will be 

30 adrrinistered and collected by the South Carolina Tax Commission . 

31 The South Carolina Tax Commissi on will sep a rately account for the 

32 specia l tribal sale tax, and the St at e Treasu rer will remit the 

33 special triba l sales tax revenues periodically to the Tribe at no 

34 cost to the Tribe. The tri bal s ales tax sha ll no t apply t o retail 

35 sales occurring on the Res€rvation as a r esult of delivery from 

36 ou tside the Reservation when the g ross proc e eds of sa le are $10 0 

37 or less. In such case, the State sa le tax s hall apply . The T~i be 

38 may impose a tribal Use tax on the storag e , u se or other 

39 consumpti o n o n the r eservat ion of tang i b l e personal property 

40 purchased at retail outside t he State wh en the vendor d oes no t 

41 collect the tax. However , any u se taxe s which are co llected b y a 

42 vendor which is not l oca ted in the sta te will b e subj ect to st ate 

43 use taxes and the use tax wil l be ~rn itt d t o the state and not 

44 the Tribe. Any use taxes r::ot colle cted by the ve ndor and remitted 

45 to the state wi ll be s u b j ect to the 7:· ibal u se t a x and must be 

"6 collected directly by the Tr ibe. 

47 18.10 nt.§ __ jl_l ~.L~lJ... _ _g_f ___ ?i~~-~- :.. Th e 'Tri be , dur i !"lg 

48 t~e period establishe d for State benefi ts i n Section 3.2, sha:l 

49 pay a fee in lieu of school taxes . That fee sha l l be dete1ni ned 

50 by the county i n the same man ne r and shall be t h e same amount 

5 1 that is paid by stude n t s from outside the county e ntering s c hoo ls 

52 i n the county. The fee payable by the Tribe shall be reduced by 

38 
135 

1 any funds received by the government for Impact Aid under 

2 Sections 20 U.S.C. 236 et. seq. or any other federal funds 

3 designed to compensate school districts for loss of revenue due 

4 to the non-taxability of Indian property. Any fee paid on behalf 

5 of a child under this section will be excluded from federal and 

6 state income of the child or his family for federal and state 7 income tax purposes. 

8 18.11 Estate Taxes. Members of the Tribe shall be 

9 liable for payment for all estate and inheritance taxes , except, 

10 however, that the undistributed share of any member in the trust 11 fund established pursuant to Section 13 . 7 shall be exempt from 

12 federal and state estate and inheritance taxes. 

13 18.12 Eligibility for Consideration to Become an 14 Enterprise Zone or General Purpose Foreign Trade Zones. The 

15 Tribe shall be eligible for consideration to become an enterprise 

16 zone or Foreign Trade Zone within the meaning of the Foreign 

17 Trade Zones Act of 1934 to the same ext ent as other federally 

18 recogn ized Indian tribes. 

19 

20 19. General Provisions. 

21 19.1 General Appl icability of State Law. Except as 

22 expressly otherwise provided in the impl ementing legislation, the 

23 Tribe and its members, any lands or natural resources owned by 

24 the Tribe, and any land or natural resources held in trust by the 

25 United States or by any other person or entity for the Tribe, 

26 shall be subj ec t to the l a ws of the State and the civil and 

27 criminal jurisdiction of the courts of the State, to the same 

28 extent as any other person o r land in the State. 

29 19.2 Nonadmissibility. This Agreement represents the 

30 compromise settlement of the Tribe's claim, and no term, 

31 condition, part, o r provision of this Agreement shall be deemed 

32 an admission of liability on the part of any of the parties to 

33 this Agreement or the holder of property in the claim area in any 

34 pending or future suit in connection with the Tribe's claim. 

35 19.3 Impact of Subs equently Enacted Laws. The 

36 provisions of any Federal law enacted after the date of enactment 

37 o f the Federal law implementing this Agreement shall not apply in 

38 the State if such provision would materially affect or preempt 

39 the application of the laws o f the State, including application 

40 o f the laws of State to lands owned by or held in trust for 

41 Indians, or Indian Nations, tribes or bands of Indians. However, 

42 such federal law shall apply within the State if the State grants 

43 its approval by a law or joint resolution enacted by the General 

44 Assembly of South Carolina and signed by the Governor. 

45 19 . 4 Severability. The impl eme nting legislation shall 

46 provide that if the provisions of Sections 4 or 6 of this 

47 Agreement, once incorporated into the implementing legislation , 48 a r e held invalid , then all of the implementing legislation is 

49 invalid. Should any other section of this Agreement be held 

50 invalid once incorporated into the implementing legislation, the 

51 remaining sections of the implementing l egislation shall remain 

52 in full force and effect. 

39 
136 

Mr. SPRATT. Secretary Babbitt now has copies of the latest legislation that was passed by the State, a copy of the Federal legislation and a copy of the agreement in principle, and the Department 

of the Interior under Secretary Babbitt is reviewing the settlement 

at the present time. 

The State General Assembly passed the implementing legislation 

at the end of May. Governor Campbell signed it into law on June 

14, 1993. Once we got the State implementing legislation settled, 

the Federal implementing legislation could be put in fmal form and 

introduced, which is what Butler Derrick did for us on June 10, 

1993. 

Mr. Chairman, I might note this is not the first time this committee has examined the Catawbas' claim. On June 12, 1979, this 

committee, under the chairmanship of Morris Udall, held a hearing 

on the Catawba claim, and the hearing report, which is very extensive, serial No. 96-17, provides an extensive background on the dispute. 

Over the years that I have been involved with the land claim of 

the Catawbas, I have compiled my own history of the tribe and 

their land claim. While I am not going to try your patience by reading all of it, it is part of my testimony. I have included it in my 

written testimony and I would like to offer it for the record. 

Basically let me say this claim stems from treaty recognition of 

an area set aside for the Catawbas after the French-Canadian war 

in 1760 and in 1763; 144,000 acres, 15 miles square, 15 miles on 

each side, was set aside for the Catawba Indians in the northcentral corridor of South Carolina and confirmed in the Treaty of 

Augusta made in 1763. 

A survey of this area was made by one Samuel Wyly, and the 

survey is still available. The tract was completed on February 22, 

1764. The purpose of this set-aside was to separate the Indians 

from white settlers and to give them an area of land where they 

could live and continue to live in their aboriginal lands unmolested 

by white settlers. That was the theory. 

In truth, there were white settlers settled in that country even 

then, in 1763. My own forebears moved to Catawba Indian country 

before 1763, sometime around 1758. And after the Revolutionary 

War, during which the Catawba Indian land had been used by the 

militia in South Carolina as an area where they mustered, many 

members of Sumter's forces who had mustered in that area and 

had gotten to know the Catawbas as a result because they had settled there and fought with Sumter's forces as well, many of them 

came back penniless and landless, and made a deal with the Catawbas where they leased tracts of land. 

The Catawbas in time protested this white encroachment on 

their property. By the first decade in the 1800s, very little land was 

left unoccupied by white settlers and most of the Catawba land had 

been displaced and leased out to white settlers. 

Consequently, a movement developed among the white settlers to 

convert their leasehold interest to fee-simple title. This movement 

was aggravated, you might say, motivated by the fact that there 

were a number of people, entrepreneurs, who kept dealing with the 

State trying to cut a deal whereby they might get the reversionary 
137 

title in this land so that when these leases were up, they, instead 

of the Catawbas, would own the land. 

Spurred by a fear that this might happen, particularly in the low 

country of South Caroli'na, people in the Catawba Indian claim 

area pushed the State legislature to enter into a deal with the 

counties whereby the Catawbas would cede title, convey title to the 

State of South Carolina in return for a settlement of a certain sum 

of money and a certain amount of land so that the Catawbas could 

be resettled near the Cherokee and Haywood Counties, North Carolina. 

For reasons I won't get into here, that deal was never fully consummated. The State of South Carolina did make payments to the 

Catawbas but they were never able to acquire a tract of land in 

Haywood County, North Carolina. Instead, the Catawbas were set- tled on a tract of 630 acres in York County, South Carolina, and 

the tribe dwindled down to a very small number of Catawba Indians. 

From almost the first, a treaty was made with the Indians in 

1840, and after the treaty was not completely fulfilled as the terms 

of it provided, the Catawbas began pressing for a resolution of their 

claim. And I will come back to this in just a little while. But from that date forward, from the mid-1840s until literally 

the present, the Catawbas have sought assistance and the rectification of their claim under the treaty of 1840, and they have gotten 

precious little assistance until the Native American Rights Fund 

took up their case in the mid-1970s. 

AB a result of their inability to obtain any relief from the Department of the Interior, even to obtain the Federal Government's assistance to bring a suit on this claim on their behalf, after the 

Passamaquoddy and Penobscot and other New England claims indicated that we might indeed protect their claim to recovery of title 

in 1840, the Catawba Indians turned to the Native American 

Rights Fund, and in 1980 NARF brought suit on their behalf. 

This suit is still pending today. It is a phenomenal lawsuit. It 

has been from the district court to the full circuit court of appeals. 

The district court dismissed, the full circuit court of appeals rein- stated, the Supreme Court reversed the full circuit in part and sustained it in part. The case went back to the full circuit. The full 

circuit then sent the case to the Sta e of South Carolina for an advisory opinion from the State Supreme Court. 

The Supreme Court declined to render an advisory opinion. The 

full circuit rendered an advisory opinion on the effect of State law 

on the Catawba claim. The case then went back to the district 

court. Individual landowners like myself moved for summary judgment. The summary judgments were appealed to the full circuit 

court of appeals and then a petition for certiorari was taken to the 

Sup:reme Court. Now the case is back in the district court. The case 

has been pending for 13 years and no answer yet has been filed by 

the defendants. 

I mentioned earlier that the Committee here held a hearing on 

this matter in June of 1979. And I think that hearing is important 

because it sort of set the tone and the outlines for what this settlement would be. And I think what we have done is we have con-
138 

formed to the outlines that we brought away from that particular hearing. 

This case has now been settled after four years of negotiation. 

The settlement involves a request of $50 million from the State of 

South Carolina, the Federal Government, private sources, title insurance companies, multiple sources, $32 million of which would 

come from the Federal Government. 

And that is bound to be a major question. Why should the Federal Government participate in the settlement monetarily, and why 

should the Federal Government contribute this particular sum of 

money? 

Let me recall the Committee's attention to the testimony that 

was offered by Kenneth Woodington, who is here today, an Assistant Attorney General, spent a good part of his career since the 

mid-1970s, following this suit, advising the state on it. He testified 

as follows. 

He said, "Mr. Chairman, as far as a cash contribution or any 

other sort of contribution by the State of South Carolina, we would 

defer to the representatives of the South Carolina General Assembly. But we would ask the Committee take into consideration, as 

is done in Maine, past contributions of the State to this tribe. For 

instance, in the 1940s the State contributed enough funds to purchase 3,200 acres of land. At that time it was only $75,000." 

Congressman Udall, Chairman of the Committee, said of him, 

'<you do not reject outright, depending on the actions of the legislature then, some contribution beyond the land? I certainly agree 

with what has been said earlier about the pattern of settlements 

in the East, which has been for some a modest contribution at the 

least from the State. And that is the way I would lean at this 

point." 

In other words, Chairman Udall then, having heard all the evidence in this case, recognized that the State's contribution should 

be provided, but it was not-it should not be an inordinate contribution. 

I might point out that the State has, since the treaty of 1840, 

maintained over the years, from 1840 through the 1940s a series 

of annual payments appropriated to the Catawba Indian Tribe for 

their welfare, upkeep, education, medical attention, based on some 

theory that the State had a continuing financial obligation under 

the treaty of 1840. 

Dr. Thomas Blumer, a scholar, historian associated with the Library of Congress and very closely associated with the Catawba Indian Tribe, has searched the legislative records of South Carolina 

for this whole 100-year period of time. I have a copy of a letter that 

he provided us, which is dated April 29, 1992, which outlines all 

of the payments that the State of South Carolina appropriated. 

Now, you can't verify whether or not they were actually disbursed, but there was legislation appropriating this money. And I 

would assume it was spent, because I don't think the payments 

would have continued if the money was not being drawn down. The 

sum of this money in just actual nominal dollars over that 100-year 

period of time comes to a total of over $385,000. If we raise to a 

present value this sum of money at a 4 percent rate of interest, 

over that 100-year period of time, it comes to a total of $14,328,586. 
139 

I would like to offer for the Committee's record, first of all, the 

letter dated April 29, 1992, from Dr. Thomas Blumer, and secondly 

this computer calculation which shows the present value of this 

money at a modest discount rate of 4 percent, because if you add 

that, the $14 million there to the $18 million which we are providing from State, local, and private sector sources, this is about a 50/ 

50 settlement. 

[The document follows:] 
140 

642 A Street, N.E. 

Washington, D.C. 20002 

Home Telephone (202) 543-7031 Office Tc:lrphonc (202J ~07·9821 

Mr. John Spratt 

U.S. House of Representatives 

1533 Longworth House Office Building 

Washington, D.C. 20515 

Attention: Tom Kahn 

Dear Mr. Spratt: 

April 29, 1992 

Pursuant to a telephone conversation of April 27 with Mr. Kahn of your office and 

subsequent telephone conversations with Assistant Chief Fred Sanders and Don Miller, NARF 

attorney, I have searched my tiles for South Carolina's Catawba Nation appropriations from 1840 

to the present. I cannot say that my working tile is complete. but it is nearly so. Problems abound 

for the War Between the States and the record situation is worse for Reconstruction. 

During the first nine years, South Carolina was obligated to pay the Nation $2,500 

per year, but the actual appropriated amounts range from a high of $2,000 in 1843 to a low of 

$1,840 in 1841. The record is further complicated by that fact that the legislature qualified the 

amount to be paid as "if necessary." The only way to ascertain the actual amount South Carolina 

considered necessary is to study each agent's report for the year in question. I have some of these 

reports in my tiles but not all of them. 

Also. there is often a big difference between the amount appropriated and the 

amount actually distributed to the Nation. Between 1861 and 1866. the Indians were often given 

produce rather than money. Again each year would have to be studied to get a more accurate 

picture. Then from 1867 to 1877 confusion was the order of the day. For instance, the Catawbas 

registered several complaints that their agent did not distribute any money at all even though 

money had been appropriated by the legislature. In 1873 the agent reportedly kept the money, 

and ! cannot say if he was forced to surrender the appropriation back to the legislature or finally 

distributed the money. Then in 1874, only $40 of a $500 appropriation was supposedly distributed. 

In 1854 the S.C. legislature appropriated an additional $5,000 to be distributed if 

the Nation removed to Indian Territory. This was to make up for the lost $5,000 that the U.S. 

Congress appropriated in 1848 when it first seemed the Catawba would remove to Indian Territory. 

Neither amount was ever distributed. The closest the Catawbas ever came to removal was in 1860 

when Chief Allen Harris and Councilman John Harris inspected land among the Choctaw in Indian 
141 

2 

Territo ry. This removal plan was set aside by the War Be tween the States. 

In 1879 the legislative appropriation and distribution problems between the agent 

and the Nation were finally solved. An appropriation of $800 per year was distributed. Even here, 

however, one cannot ass ume that the tribe actually saw $800. The custom was to deduct odd 

expenses from the Catawba appropriation. For instance, the Catawbas had to build their own 

schoo l o ut of this sum, trips to visit the legislature, and the agent's pe rcentage from 3% to 8% was 

also deducted. Begi nning in 1898 it was normal for $200 to be taken off the to p to pay the 

Catawba school teache r. In 1909, for instan ce, a sum was set aside for the school, the agent's 

percentage and a trip to Columbia made "y the tribal council o r chief. The agent's report would 

reveal additional odd deductions. 

In 1917 an additional financial problem enters the picture. Although the 

appropriation had reached $7,000 pe r year, local me rchants began to bring claims against individual 

tribal members. The agen t, at least it seems that the agent performed this duty, then decided 

which merchants had va lid claims. These claims were taken off the top of the appropriation and 

the remaining money, minus school costs, agent's percentage, etc., was distributed equ ally among 

the tribal members. It seems that those who ran up bills at the grocery store got a larger share 

of the appropriation, and the re is no way of knowing if all the cl aims against the appropriation 

were actually true and accura te. From all appea rances, it seems that each merchant's word was 

taken as gospel wi th little or no investigation or lega l recourse. 

Then in 192 1, the South Ca ro lina legislature began to deduct Catawba Indian 

Commission salaries from the Catawba appropria tion. These men were loca l de legates and 

businessmen who were employed by the State to study the Catawba problem. In 1920 the 

appropriation was $8,500 hut the deductions for th at year amounted to: $375 for the agent, $2,000 

for debts, $500 for the school, and $1 ,000 for the Catawba Legislative Study Commission. In 1921, 

a total of $647.30 was deducted from the $7,700 appropriation for these officials. That same year 

o the r deductions amo unted to $375 for the agen t, $700 for the school, and $1000 for local debts. 

The appropriatio n continued o n a regular basis at least until the Catawbas became 

wards of the Fede ral Government. In 1941 South Carolina did app ropriate $75,000 to purchase 

additional reservation lands for the Nation, but I have no way of knowing if all the $75,000 was 

actually spent. The Catawba Appropri ation Act No. 393 was repea led in 1951, but Catawba School 

appropriations were approved until the school was closed in 1966. 

I have been through the Bureau of Indi an Affairs Ca tawba files at least 6 times over 

the last 15 yea rs and have neve r located what seemed to be a BIA Catawba budget. The Federal 

Government matched some South Carolina funds, and an agricultural project was conducted. The 

amounts spent are conjectural. The Catawba were admi niste red through Cherokee, and the 

answers to these questio ns are probably to be fo und in the records of the Cherokee Agency. 

Please keep in mind that the list was prepared in haste. The re should be an agent's 

report for each year, and it would provide an itemized account of what was spent. If I say there 

is ---no record·-, this means that I do no t have a record for th at year. A reco rd may exist, but I 

merely could not find it. 
142 

3 

The amounts listed below should give you a fairly good idea of the South Carolina 

appropriation from 1840 to 1951. If you need additional information, I will do my best to oblige 

you. 

Enclosure 

cc: E. Fred Sanders, Assistant Chief 

Catawba Nation 

Don Miller, Attorney, NARF 

Sincerely, 

Thomas J. Blumer, Ph.D. 
143 

4 

SOUTH CAIWLINA LEGISLATIVE APPROPRIATION 

AMOUNTS TAKEN FROM TilE FILES OF THOMAS J. BLUMER IN APRIL 1992 

DATE 

1841 

1842 

1843 

1844 

1845 

1846 

1847 

1848 

1849 

1850 

1851 

1852 

1853 

1854 

1855 

1856 

1857 

1858 

1859 

AMOUNT 

$1 ,840, if necessary 

$1 ,000, if necessary 

$2,000, if necessary 

$1.841. if necessary 

$1 ,84 1. if necessary 

$1,841, if necessary 

$1,841 , if necessary 

$1 ,841, if necessary. 

$1 ,842.50, if necessary 

$2,500, if necessary 

···no record---

$1 ,500, if necessary 

$2,000, if necessa ry 

$1,200, if necessary. 

S I ,500. if necessary 

$1,500, if necessary 

---no record---

$1,200, if necessa ry 

$5.000 appropriated by U.S. Congress was 

never used for removal. 

SC approved $5.000 if removal occurred; funds 

never used. 

$1,182.18 distributed to Indians 
1860 

1861 

1862 

1863 

1864 

1865 

1866 

1867 

1868 

1869 

1870 

1871 

1872 

1873 

1874 

1875 

1876 

1877 

1878 

1879 

1880 

1881 

144 

5 

No record. It is possible that the legislature tho ugh the Catawbas would 

remove and take the $5,000 approved in 1854. Neither happened. The War 

broke out and the Catawbas served the Confederacy. 

No record, possibly in produce 

No record. possibly in produce 

No record, possibly in produce 

No record. possibly in produce 

No record, possibly in produce 

No record. possibly in produce 

$1,200 

$600 note from the Governor of SC 

$850.40 

---no record---

$777.91 

Agent reportedly kept the money. Amount unknown. 

$500 appropriated but o nly $40 distributed. 

$675 approp riated. A legislative investiga tion said that a tota l of $2,145 had 

been appropriated from 1870- 1875 but the amount distributed is unknown. 

---no record---

Appropriation made but amount unknown. 

Appropriation made but amount unknown. 

$800 

$800 

$800 
1882 

1883 

1884 

1885 

1886 

1887 

1888 

1889 

1890 

1891 

1892 

1893 

1894 

1895 

1896 

1897 

1898 

1899 

1900 

1901 

1902 

1903 

1904 

145 

6 

$800 

$800 

$800 

$800 

$800 

$800 

$800 

$800 

$800 

$800 

$800 

$800 

$HOO 

$800, but only $610 distributed. TI1is is probahly the case for each year, but 

my files do not always contain this info rma tion. 

$933 

$800 

$1,000 with $200 for the school, etc. 

$1,()00 with $200 fo r the school, etc. 

$1,000 with $200 for the school, etc. 

$1,000 with 8% fo r the agent, etc. 

$1,000 with dedu ctions for the agent, teacher, doctor, etc. 

$1,000 

$1 ,500 with 6% for the agent, etc. 
146 

7 

1905 $1,500 

1906 S I ,500 with $200 for the school, etc. 

1907 $3,000 wit h 3% for the agent, etc. 

1908 $3,000 with $200 for the school, etc. 

1909 $3,000 expenses to Columbia deducted, etc. 

1910 $3,500 

1911 $5,000 

1912 $4,513.60 distributed 

1913 $7,1 50 

1914 $7,600 with $250 for the school, etc. 

1915 $7,000 with $500 for the school, etc. 

1916 $7,000 minus claims, etc. 

1917 $7,000 minus claims, etc. 

1918 $8,000 minus claims, etc. 

1919 $7,000 minus claims, etc. 

1920 $8,500 minus claims, etc. 

1921 $7.700 minus claims, etc. 

1922 $7,700 minus claims, etc. 

1923 $6,625 

1924 $10,375 minus $1.500 for the school, etc. 

1925 $9,375 minus $1,500 for the school, etc. 

1926 $9,375 minus $1,500 for the school, etc. 

1927 $9,450 

1928 $9,450 
147 

8 

1929 $9.450 

1930 $9,450 minus agent and school 

1931 $9,450 

1932 $8,905 

1933 $11 ,222.50 

1934 $9,450 minus agent and school 

1935 $7,500 

1936 $9.450 

1937 $9,450 

1938 $9,450 

1939 $8,250 

1940 $9,825 

1941 $9,385: S.C. appropriated $75,000 for land purchase. 

1942 $9,385 

1943 $9,385 

1944 $12,000 

1945 No record. I suspect that the appropriation ended here. 

1946 ---no record---

1947 ---no record---

1948 $12,500 for school matched by US Government 

1949 $13,000 for the school 

1950 ---no record---

1951 Catawba Appropriation Act repealed: Act No. 393 
148 

9 

1952 to 1966 the Catawba Indian School continued to operate as a York County school. II was 

closed in 1966. 
149 

Mr. SPRATT. Secondly, when we were before the Committee or 

when the State Attorney General and others from the State of 

South Carolina were last before this Committee in June of 1979, 

we discussed the issue of settlement. And we discussed in particular the issue of sovereignty and jurisdiction of the tribe if it was 

to be recognized, again, as a Federal Indian tribe. 

Assistant Attorney General Ken Woodington who is here in the 

room today laid out to the Committee the jurisdiction and sovereignty that the State wanted the Catawbas to have if the tribe 

was to be recognized and if a new reservation was to be established 

for them. A useful comparison in his system, the most recent eastern settlement, Rhode Island settlement agreement, which Congress had then just enacted, which reserved virtually all civil and 

criminal jurisdiction to the State, he made it clear that the State 

of South Carolina did not want jurisdiction over the Catawba Tribe 

governed by Public Law 20, and as he said, leaned heavily toward 

jurisdiction on a sovereignty pattern like those in the Eastern Indian settlements today. 

To this concept of limited jurisdiction which Mr. Woodington laid 

out, Chairman Udall responded as follows: 

I would be inclined to agree with you on the jurisdictional question. I think it is one thing to have a Navajo reservation in my State which is as big as West Virginia 

with a long history of problems; it is quite another thing to say in an Eastern State 

where you do not have an established reservation, to then go out and combine an established new reservation and give a tribe without an existing tribal structure 

civil and criminal jurisdiction. I think you are on sound ground there. 

We negotiated the sovereignty and jurisdiction of the Catawba 

Tribe accordingly, tailoring their tribal authority, sovereignty and 

jurisdiction, to the circumstances in which this tribe finds itself: located in a metropolitan area in a fast-growing region of the Carolinas and following the Eastern settlements as precedents but in the 

end granting the Catawbas more jurisdiction than most of the 

Eastern settlements on record today. 

I won't go over here, although I do in my testimony, the jurisdiction and sovereignty issues. I have outlined it in my testimony. It 

is available to the Committee to review and we are available at any 

time to review it with the Committee if you have questions about 

it. 

Let me turn instead as my final point to what is the major issue 

here: contribution to settlement. 

Mr. Chairman, from the very outset it has been assumed by almost everyone that the Federal Government had to contribute and. 

contribute significantly if this claim was ever going to be settled. 

Attorney General Griffm Bell assumed as much when he reviewed 

all the Eastern Indian land claims for the Carter administration in 

the late 1970s, and all the parties before this Committee at the last 

hearing in March of 1979 and June of 1979 agreed and assumed 

that there would be a substantial Federal contribution. 

Indeed, if you look in the front of your hearing report on that 

date you will find printed, Ken Holland's bill, a bill that he and the 

South Carolina delegation introduced, printed on page 2 of serial 

No. 96-17. That bill called for payment in full of this settlement 

out of the United States Treasury. That was the bill before the 
150 

Committee the last time we met. Full payment for the settlement 

from the Federal Government. 

Still, it is fair to ask and will be asked, why should the Federal 

Government contribute $32 million to this settlement? Mr. Chairman, the short answer is that the Catawbas lost their land and 

have now lost most of their claim for recovery of that land because 

of the failure of the Federal Government to protect their rights and 

interests not once but continually over a period of 200 years. 

Consider this long list of occasions on which the Federal Government turned a deaf ear to the Catawbas, ignored their plight and 

their pleas, did nothing to protect the interests, even when it had 

clearly occupied a trust relationship and knew the tribe held a serious claim. 

As early as 1782, Catawbas traveled all the way to Philadelphia 

and presented to the Continental Congress their petition for protection of their lands from the white settlers. In 1791, Washington reported this in his own journal: Catawbas stopped Washington on 

the road near their reservation and protested to him white incursions into their property. He was traveling from Camden to Charlotte on a trip to the Southeast he had taken. He made note of it. 

In 1825 the War Department, then headed by John C. Calhoun 

of South Carolina, reported to the Senate the Indian tribes that 

were among those holding lands in the United States and noted the 

Catawbas owned 144,000 acres in South Carolina. 

In 1848, after the treaty of 1840-this is significant to me-1848, 

eight years after the treaty of 1840, the Catawbas got together and 

wrote President James Knox Polk protesting the treaty of 1840 as 

an injustice, the fact that it had not been fulfilled. 

Why is that significant? James Knox Polk was born three or four 

miles from Catawba Indian country. He had direct relatives living 

in Catawba Indian country. He would have known if he saw that 

letter exactly what they were talking about. 

They protested and sought the help of the Federal Government. Nothing came. Instead, in the same year, in an act of 1848 and 

then again in 1854, Congress passed legislation providing for the 

removal of this tribe west of the Mississippi, evidencing the fact 

that Congress knew of the treaty of 1840 and knew they had been 

dispossessed of their lands but did nothing to address grievances 

or protect them. 

In 1877 a long series of efforts to get some relief from the Department of the Interior began. James Kegg, son of a man who was 

a chief when the treaty of 1840 was made, sent a letter to L.L.C. 

Lamar, Secretary of the Interior, asking for Federal assistance in 

reaching a settlement. In 1895, the Catawbas submitted a petition. In 1905, they got 

really serious. They retained a Washington lawyer, Chester Howe, 

and he submitted a very professionally prepared brief requesting 

the Bureau of Indian Affairs to take action to protect the claim of 

the Catawba Tribe. The BIA, the Bureau of Indian Affairs, and the 

Office of Indian Affairs declined that request on legal grounds that 

have now been found to be completely erroneous. 

In 1908, the Catawba Tribe commissioned the Commissioner of 

Indian Affairs again and was denied again. In 1910, the Indian 

service initiated another investigation into their claim and then re-
151 

ferred them to the State of South Carolina. The State of South 

Carolina declined to take responsibility for the claim or the tribe. 

And then between 1926 and 1943, due to the fact that Congressman James P. Richards, my predecessor in my district and a man 

who became the Chairman of the Foreign Affairs Committee while 

he served here in the House, James P. Richards took a deep and 

abiding interest in this tribe and he made repeated requests to try 

to get the Bureau of Indian Affairs interested in the welfare of this 

tribe, not so much in the claim but just on the welfare of the tribe 

and their claim against the Federal Government. But in the course 

of this, the existence of their claim, the unresolution of the claim, 

was brought to the attention of the Bureau of Indian Affairs and 

the Department of the Interior repeatedly. 

In 1943, finally, all of this effort on the part of Congressman 

Richards and others bore fruit. The Department of the Interior entered into a memorandum of understanding assuming responsibility for this tribe and they began to provide Federal services. The 

State of South Carolina provided $75,000 to buy 3,434 acres of land 

on which the Catawbas could be settled, on which they could learn 

to farm and on which they could have a tribal existence. 

This arrangement did not work well, not for Catawbas, not for 

the Federal Government. The Second World War intervened, and 

then the period of assimilation intervened. 

As a consequence, both the Federal Government and the Catawba Tribe wanted out of the agreement. I should say that in 

making that agreement, Mr. Chairman, the State of South Carolina was prepared to put up $100,000, ended up putting up $75,000, but sought in return a release of this claim. The Department of the Interior took the draft of the memorandum of understanding prepared first by the State of South Carolina 

and including a release of the Catawbas' claim and said, ''We cannot advise the Catawbas to sign or enter into this agreement with 

this release in it because this claim may well be valid." 

They knew the claim, they claimed it might be valid, but they 

did nothing to enforce the claim, to protect the claim, to prosecute 

the claim, even though this tribe was under their supervision and 

tutelage at that particular point in time. As I said, the memorandum did not work well for either party, 

so the Catawbas sou~ht relief from it. It was dissolved by an act 

of Congress along With the other assets of the Catawba Indian 

Tribe. 

At that particular point in time the memory of the claim was still 

in the mind of Catawba leaders, and they insisted that a proviso 

be added to the resolution by which they approved the termination 

of the MOU, clearly reserving the status of their claim. 

However, at that particular point in time the Bureau of Indian 

Affairs and the Department of the Interior made two grievous errors in terms of protecting the rights and interests of this claim. 

First of all, clearly they were acting as a trustee in liquidation for 

the tribe. That was the purpose of the dissolution. The act was 

called an act for the dissolution of assets and distribution of assets 

of the Catawba Tribe. 

The Department of the Interior did not liquidate the single greatest asset of the Catawba Indian Tribe. They knew about it. It was 
152 

called repeatedly to their attention. The historian who had written 

the one definitive biography to that date of the Catawba Tribe, 

Douglas Summer Brown of Rock Hill, documented the existence of 

the claim, and he warned the BIA, "Any agreement of settlement 

made now cannot be filed. But the question about this claim will 

be brought up again and again in the future." 

Despite that and all sorts of similar warnings, Interior and BIA 

did nothing about settling the claim as part of the dissolution and 

distribution of the assets of the tribe. Instead, they did something 

else that worked to the tremendous disadvantage of this tribe. 

The Termination Act included in Section 5 language which was 

boiler plate language, more or less, wrich provided that upon the 

effective date of termination all Federal laws that protected and 

applied to this tribe as Indians would cease to have effect, and 

State laws would then apply to them as any other citizens of the 

State of South Carolina. 

As a consequence, the Catawbas learned in 1986, by decision of 

the United States Supreme Court, that this Section 5 applied State 

statutes of limitation, adverse possession statutes to their land 

claim. The Fourth Circuit was later to fmd that this meant anybody who held his title, held his property for 10 years, between 

1962 when the tribe was terminated, and 1980 when this suit was 

brought, 10 years consecutively during that 18-year period of time, 

could validate his title by adverse possession against the claim of 

title to the Catawba Indian Tribe. Why? Because of the express boiler plate language put into this 

agreement by the Department of the Interior and the Bureau of Indian Affairs. Not only did they put it into the agreement, they 

failed to warn the Catawbas of the consequences, failed to tell them 

they had a 10-year time frame within which to bring this suit. 

Then in 1962 and later in the 1970s, even after litigation, court 

decisions indicated that it might have this impact, they did nothing 

to protect their claim. 

So when we come to you and ask for Federal participation, when 

the Catawbas come to you and ask for Federal participation, it is 

after this long trail of tears, this abject failure on the part of the 

Federal Government to do what it should have done, had a right, 

obligation and duty to do as trustee to protect these Indians. 

Let me ask just in closing what will happen if the Federal Government does not assume its share of the settlement. The negotiations will resume. We won't let them break down. But it will be 

hard to bring back together. And so will the lawsuit. 

The State of South Carolina for its part will probably have little 

choice but to seek dismissal from the suit under the recent ruling 

of the Supreme Court in Blatchford v. Native Village of Noatak, 

holding that an Indian tribe can not sue a State in Federal Court. 

So we may lose the State as a participant in this suit. The Catawbas for their part will probably have no choice but to 

sue some 62,000 landowners, probably filing a lis pendens with 

each suit. And in a highly populated, well developed area covering 

140,000 square miles in South Carolina, real estate sales and real 

estate lending will come to a crunching hold. 
153 

Pending the outcome of this suit, real estate will plummet in 

value, landowners will have to bear legal fees and substantial expenses that will run undoubtedly into millions of dollars. 

And in the end, in the end, after all this turmoil, the vast majority of these landowners will prevail. They will have an adverse possession defense that will clear their title after time and over time. 

And the Catawbas? The Catawbas will probably be left with a lot 

less than they have won by the way of this settlement. 

In short, if the Federal Government can't and won't contribute 

the share we are seeking, this settlement, hard fought over four 

years of negotiation, will collapse and everybody will lose, including 

the Federal Government. And I include the Federal Government 

because if it collapses, the Federal Government will not be able to 

bring another Indian land claim to conclusion. It won't see another 

terminated tribe restored to Federal status, which is also Federal 

policy. And the injustice done the Catawbas by years of Federal neglect won't be rectified. It will be compounded. 

Furthermore, an injustice will be visited upon 62,000 landowners. They will be the victims of the Federal law, the law which 

no one has understood clearly, and cause undue anguish as well as 

loss of money. And everybody knows, everybody knows that if this 

were the outcome, Congress wouldn't stand for a minute for them 

to be dispossessed of their family-owned farms and businesses. 

Just in conclusion, Griffin Bell took a long, hard look. He got a 

lawyer from Atlanta, a retired judge to assist him, and he took a 

complete review of all the Eastern Indian land claims which were 

asserted in the 1970s, and he came to several conclusions which he 

set out in a letter to Cecil Andrus dated June 30, 1978. We will 

offer it for the record. 

One was that landowners today are wholly innocent and they 

should not be held under threat of loss of their homes or farms or 

charged with the cost of this settlement. In fact, Griffin Bell refused to bring in suit on behalf of Catawbas because, "The fact that 

the landowners are completely innocent of any wrongdoing lays 

heavily against suing them." 

Attorney General Bell concluded that "of necessity it is the government's responsibility to settle these claims." He recommended 

that it is, and I am quoting, "completely within the power of Congress to remedy the tribal claims by the process of ratifying the ancient tribal agreements with the States. Such ratification could be 

accompanied by payment to the tribe in appropriate manners. In 

the alternative, the tribes could be given a cause of action against 

the United States in the court of claims." He was speaking of Federal contribution, because he recognized the Federal Government 

would have to step in substantially. 

So we come today to ask the Federal Government to stand up to 

its responsibility and help settle this claim, as Griffin Bell recommended 15 years ago. 

Mr. Chairman, I have taken a lot of time but I appreciate your 

allowing me this latitude so I could present this matter to you 

fully. [Prepared statement of Mr. Spratt and additional documents submitted for the record follow:] 
1M 

TESTIMONY 

CONGRESSMAN JOHN M. SPRATT, JR. 

COMMITTEE ON NATURAL RESOURCES 

SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS 

U. S. HOUSE OF REPRESENTATIVES 

July 2, 1993 

Mr. Chairman, I want to thank you not only on my behalf but 

on behalf of thousands of my constituents for holding today's 

hearing on H.R. 2399, the Catawba Indian settlement bill. To 

avoid lawsuits against 61,676 innocent landowners this October, 

H.R. 2399 needs to become law before Congress ends this session. 

I am grateful for your willingness to act so promptly. 

At the outset, I should state that I am a landowner in the 

claim area and one of the 77 defendants named in the law suit, 

Catawba Indian Tribe of South Carolina v. State of South 

Carolina, et alia, docketed as Civil Action No . 80-2050 in the U. 

S. District Court for South Carolina. Along with the other named 

defendants, I moved for summary judgment . The District Court 

granted my motion and issued an order releasing all of my land in 

the c laim area from the suit. The Fourth Circuit Court of Appeals 

sustained the District Court as to all but approximately 90 acres 

that I own. Because o f my interest, I have sought the guidance 

of the House Committee on Standards of Official Conduct, and the 

Committee has advised me that I should not introduce the 

settlement legislation, but that I may testify and speak in favor 

of it s o long as I disclose my interest . 

This bill will settle a land claim o utstand ing f or more than 

150 years and a law suit brought by the Catawbas, which has been 

pending for more than 13 years. The bill will grant the Ca tawbas 

federal recognition as an Indian tribe, and restore a 

relationship with the tribe terminated by Congress in 1962. 

This settlement has not come easily. For the past four 

years, we have been e ngaged in l o ng, hard , and sometimes 

contentious negotiations. H.R. 2399 is the fruit o f our efforts. 

The bill is supported by the tribe, the State of South Carolina, 

York and Lancaster County, Senator Hollings and Senator Thurmond, 

the Native American Rights Fund, and the Nat ional Congress of 

American Indians. The agreement in principle was basically 

settled last August, and the settlement was reviewed by Secretary 

of the Interior Manuel Lujan, who approved it and issued a press 

release expressing his support for it. Secretary Babbitt is 

reviewing the settlement now. 

The South Carolina General Assembly passed the state 
155 

implementing legislation at the end of May, and Governor Campbell 

signed it into law on June 14, 199 3. With passage of the state implementing legislation, the federal implementing legis lation 

could be put in final form and introduced, and Congressman Butler 

c. Derrick, Jr. filed the bill before us on June 10, 1993. 

This is not the first time this Committee has examined the 

Catawba's claim. On June 12, 1979, this Committee, under the 

Chairmanship of Mo rris Udall, held a hearing on the Catawba 

claim. The hearing report (Serial No. 96 - 17) provides extensive 

background on the dispute. I have compil ed from v arious sources 

a history of the tribe and this land claim, and while I will not 

read it as part of my testimony, I would like to offer it for the 

record. 

The Catawba Indians 

Native Americans in the Catawba -Wateree basin of South 

Carolina were first called 'Esaws,' a corruption o f 'river,' in 

their Siouan language. From the Esaws on the Catawba to the 

Mannahoacs on the Rappahannock, all descended from Siouanspeaking natives who migrated over the mountains centuries before 

Columbus. As they scattered along the rivers of the upcountry, 

they lost their sameness. A cluster of settlements in time 

became a separate people. In 170 0, John Lawson, an English 

traveler, gave a common name to the natives settled on the upper 

banks of the Catawba River; he called them s imply "Catawbas . " By 

1715, "Catawbas" had become the name for Indian communities once 

known as Esaw, Sugaree, and Shuteree, as well as Catawba. [The 

Indians' New World : Catawbas and Their Neighbors from European 

Contact through the Era of Removal, by James H. Merrell 

(University of North Carolina Press, 1989), Chapters 1-3.] 

By the mid-1700s, the Catawbas had appended "Nation" to 

their name and had a population of some 1,500. Up until the 

1750s, the estimate of warriors i n the tribe ranged from 300 to 

500. "Not very impressive when set alongside the 3,000 Cherokee 

or the 1,500 Creek," says Merrell, their most recent biographer, 

"but enough to sustain a native society in the piedmont and earn the Catawba Nation a place as one of the fou r 'most considerable' 

Indian peoples in the Southeast." [Merrell, page 17.] In 1756, 

their chief , King Hagler, said proudly, "We are a small Nation, 

but our Name is high." He did not exaggerate. [Merre ll, p. 

119.] Governor Glen called them "the bravest Fe llows on the 

Continent of America." Edmmond Atkin, Superintendent of Indian 

Affairs, said, "In War, they are inferior to no Indians 

whatever." [Merrell, p. 119 .] 

In February of 1756, the Governor of Virginia dispatched a 

delegation to the Catawbas seeking warriors for his fight against 

the French. The f o llowing November, Colonel George Washington 

2 
156 

repo rted that eleven Catawbas had arrived at Winchester, 

Virginia . Eventually, 124 Catawbas would come . They served 

mostly as scouts, and battle casualties were light, but smallpox 

had spread among the British forces, and the Catawba warriors 

brought it home with them . Epidemics of smallpox had afflicted 

the tribe in 1700 and again in 1748; now a pestilence of smallpox 

swept the tribe . Governor Dobbs e 'stimated the death toll at 60%. 

In the years after 1759, the warrior count for the Catawbas never 

exceeded 50 to 150 . The tribe's population as a whole declined 

from 1,500 to perhaps 500, according to Merrell . [Merrell, p. 

195.] The Catawbas abandoned six towns along Sugar Creek and on 

the east bank of the Catawba below Nation's Ford and settled into 

one town at Twelve Mile Creek, where the state erected a fort for 

their protection . 

The Treaty of Fort Augusta 

For additional protection, the Catawbas asked as early as 

1757 that "their lands be Measurd out for them." [Merrell, p . 

198.] In July 1760, the Superintendent of Indian Affairs, Edmond 

Atkin met with a delegation of Catawbas led by King Hagler. Lt . 

Governor Bull reported the results of the meeting to the Commons 

House on October 14, 1760, saying that Atkin "had held a 

Conference with the Catawbas on his return from Kewohee last 

July, at Pine Tree Hill, concerning the Lands which they claim'd; 

and that they had agreed to surrender their claims to a large 

Tract of sixty Miles diameter, in consideration of being quietly 

settled in a Tract of only fifteen miles square, part of the 

above-mention'd Land , to be ascertained by survey, to prevent 

Intruders, and the Catawbas having a Fort built there at Public 

Expence." J.C.H .A. XXXIII, Pt. II, pp. 14-16; [The Catawba 

Indians: The People of the River, by Douglas Summers Brown, 

(University of South Carolina Press, 1961}, pp . 240-241 . ] 

The Royal Governors of Georgia , North Carolina, Virginia , 

and South Carolina met at Fort Augusta on the Savannah River in 

November 1763, f o llowing the King's Proclamation of 1763, whi ch 

d e creed that Indians south of Canada, west of the mountains, and 

east of the Mississippi were not to be mo lested in their hunting 

grounds i f the ir lands had not been ceded or purchased . The 

purpose of the conference was to settle disputes arising from the 

Indian wars of the previous decade and to define boundaries of 

the Indian Nations. Creeks, Chickasaws, Choctaws, and Cherokees 

attended the congress, along with Catawbas . King Hagler had been 

slain by Shawnees the previous August, and Colonel Ayres 

represented the tribe. He asked for "15 miles on each side o f 

his Town free from any encroachments of white people." He was 

asked in return if he still agreed with the terms of the Treaty 

of Pine Tree Hill, and was told, " If you stand to your former 

Agreement, your Lands will be immediately surveyed and marked out 

for your use, but if you do not, your claim must be undecided 

3 
157 

till our Great King's Pleasure is known on the other side of the 

Waters." Ayres said the Catawbas were satisfied with the terms . 

of the treaty, and he was informed that a new survey would be ··· 

made, and "when the Line was run, the People settled within 

should be r emoved and no n ew Warrants g ranted them or any o thers 

to settle within those Limits." [Brown, pp. 250-251. An account 

of the proceedings at the conference is recorded in North 

Carolina States Re cords, Volume XI, pp. 179-203.] 

Article Four of the Treaty of Augusta reads as follows: 

';And We the Catawba Head Men and Warriors in 

Confirmation of an Agreement heretofore e ntered into 

with the White People declare that we will remain 

satisfied with the Tract of Land of Fifteen Miles 

square a Survey of whi ch by our consent and at our 

request has a lready been begun, and the respective 

Governors and Superintendent on their Parts promise and 

engage that the aforesaid survey shall be compleated 

and that the Catawbas shall not in any respect be 

molested by any of the King's subjec ts within the said 

Lines, but shall be indulged in the usual Manner o f 

hunting Elsewhere." 

The Catawbas' interpreter at Fort Augusta was a Quaker from 

Pine Tree Hill by the name of Samuel Wy ly . Wyly had already begun 

a survey of the area the Catawbas sought and was engaged by the 

Royal Governors to finish it. His plat was completed on February 

22, 1764, and submitted to the Royal Governor of South Carolina. 

At the otuset of the Revolution, Mouzon's "Map of North and South 

Carolina with their Indian Frontiers," dated May 30 , 1775, 

delineates Wyly's boundaries as "Catawbaw Nation, 144,000 acres." 

White Settlement of Catawba Lands 

The Catawbas wanted an area of their own for security 

against white settlers as well as other tribes. Whites had put 

down s takes in Catawba country before 1760, some as squatters, 

some by land grant from the State of North Carolina. A trader 

named Matthew Toole was one of the first, and he became the 

tribe's interpreter and int e rmediary. When Catawba warriors 

arrived in Virginia, George Washington reported that they were 

accompanied by "one Matthew Tool who makes his boast of stopping 

them until he shall be handsomely rewarded for bringing them." 

Sometime after 1757, Thomas Spratt moved from Charlotte and 

settled in what is now Fort Mill. He apparently encouraged 

others to come; and by the start of the Revolution, Garrisons, 

Kimbrells, Erwins, and Elliots had followed him. 

In May 1 78 0, after the fall of Charleston, the New 

Acquisition Militia muster ed in Catawba country and resolved to 

carry on the revolution in the upcountry under Thomas Sumter's 

4 
158 

command . Catawba warriors joined their ranks. In an account 

written in 1843, David Hutchison recalled that "a large number of 

young men , chiefly from Mecklenburg County . ... returned horne 

[from the war] poor and penniless . A number of them had served 

their last years in Sumter's State troops . .. In camp they had 

become acquainted with a number of Indians and were favorites 

with them. These men when married, being without means sufficient 

to purchase improved land, were encouraged by the Indians and the 

whites already settled to come and live on their land; which most 

of them did, purchasing from the first settlers. " 

The Catawbas must not have encouraged all who carne ; because 

in November 1782, a delegation of Catawbas appeared in 

Philadelphia before a committee of Congress, asking that their 

land be secured to them so that it could not "intruded into by 

force, nor alienated even with their own consent." Congress 

passed a resolution acknowledging the British treaty with the 

Catawbas. However, Congress was then operating under the Articles 

of Confederation, and under Article IX , Congress had only "the 

sole and exclusive right and power over Indians, not members of 

any of the States, provided that the legislative right of any 

State within its own limits be not infringed or violated . " 

Congress referred their complaints to the state legislature to 

"take such measures for the satisfaction and security of the said 

tribe as the said legislature, shall, in their wisdom, think 

fit." 

The framers of the Constituti on abandoned Article IX of the 

Articles of Confederation, and in Article I, Section 8, Clause 3 

of the Constitution, conferred on Congress plenary authority over Indians. In 1790, at the urging of President Washington and the 

Secretary of War, Congress exercised its authority under the new Constitution, and passed the first Indian Trade and Intercourse 

Act , which prohibited the conveyance of Indian land except where 

such conveyances were made pursuant to the treaty powers of the 

United States. (Referred to as "Nonintercourse Act, " first 

codified at Chapter 33, 1 Statutes 137; now codified at 25 u.s.c. 

Section 177.) The law was amended in 1793 to provide more specifically that "no purchase or grant of lands ... from any 

Indiana or nation or tribe of Indians, within the bounds of the 

United States, shall be of any validity in law or equity, unless 

the same be made by a treaty or convention entered into pursuant 

to the constitution . . . [and] in the presence, and with the 

approbation of the commissioners of the United States. " The 

Nonintercourse Act was passed as a temporary law and amended six 

times before it was made permanent in 1834 . 

The Treaty of 1840 at Nation Pord 

The state legislature did little to deal with the Catawbas' 

land problem until 1808, when William Pettus, an Indian Land 

lessee, was elected to the General Assembly and refused his seat 

5 
159 

because he was not a "freeholder." The dispute over Pettus led 

to the first law addressing Catawba land and those who occupied 

it. The General Assembly passed a law allowing the Catawbas to 

lease their lands, provided that each l ease was approved by three 

of five commissioners appointed by the Governor, and signed by 

four Indian "headmen," and provided that no lease exceeded 3 

lives in being or 99 years. (S. C. Statutes at Large , Volume V, 

pp. 576-577.0 

The law helped regulate leasing, but by resolving the legal 

status of the leases as well as the lessees, it also encouraged 

new settlement. In 1826 , Robert Mills visited the Catabwas and 

observed in his "Statistics of South Carolina:" "These lands are 

almost all lease.d out to white settlers, for 99 years, renewable, 

at the rate o f from $15 t o $20 per annum for each plantation o f 

about 300 acres. The annual income is estimated to amount to 

about $5,000." [Brown, pp. 297-298.] 

In 1828, a rumor spread through Indian Land that investors 

in the low country were seeking to buy out the Catawbas' 

reve rsionary interest, so that when the leases expired, they 

would own the land. The governor assured leaseholders that the 

state would not countenance such a deal. But rumors fueled 

leaseholders' concerns, and in 1830, petitions began arriving at 

each session of the General Assembly seeking a settlement of 

titles in Indian Land. By then, many Catawbas had moved to 

Haywood County, North Carolina, near the Cherokees; and those who 

remained were not disposed to sell. The leaseholders persisted; 

and after a decade of entreaties, the Catawbas finally indicated 

some willingness to sell, provided good land was purchased for 

them in Haywood County, North Carolina. On December 31, 1939, 

the legislature authorized the governor to enter into 

negotiations for purchase of the Catawbas' land . 

[Brown, Chapters XIII-XIV.] 

The governor appointed five commissioners: John Springs, 

David Hutchison, Edward Avery, B. S. Massey, and Allen Morrow. 

The Catawbas were represented by their chief, General James Kegg, 

and and his "headmen, " Colonel David Harris, Major John Joe, 

Captain William George, Lieutenant Philip Kegg, Colonel Samuel 

Scott, and Lieutenant Allen Harris. The parties met at the Cross 

Roads above Nations Ford on the western side of the Catawba 

River, and after two sessions, signed a treaty on March 13, 1840. 

David Hutchison wrote a contemporary account of how the 

treaty was negotiated. "With respect t o the Indians," he wrote, 

"we tried to fix a sum of money , the yearly interest of which 

would be equal to the yearly rent secured in the Leases. This we 

fixed at $21,000." In their Report , the commissioners noted, 

"It is not easy to ascertain with accuracy the amount of annual 

rents their lands have heretofore yielded. If the original 

6 
160 

survey is correct, their boundary contains 225 sections, which at 

ten dollars each, would produce $2,250.00 . " 

The commissioners also reported their "opinion that Five 

thousand dollars would purchase a tract of land sufficient for 

their accommodation in any place they may wish ... From a once 

populous tribe, they have dwindled down to twelve men, thirty-six 

women, and forty youths; in all eighty-eight." 

The State engaged "to furnish the Catawba Indians with a 

tract of land of the value of $5,000,000, 300 acres of which is 

to be good arable lands fit for cultivation, to be purchased in 

Haywood County, North Carolina, or in some other mountainous or 

thinly populated region, where the said Indians may desire; and 

if no such tract can be procured to their satisfaction, they 

shall be entitled to receive the foregoing amount in cash from 

the State." 

The Catawbas were promised $2 , 500 from the State upon their 

removal to Haywood County and $1,500 a year for nine years 

thereafter. In all, the payments total $21,000, which works out 

to approximately $ . 15 per acre . Nevertheless, the commissioners 

reported that if they had agreed to pay everything in cash on the 

signing of the Treaty, "they might have effected a Treaty for 

one-third or even one-fourth of the amount." 

In exchange for these payments, "the Chief and Headmen of 

the Catawba Indians, for themselves and the entire Nation 

[agreed] to cede, sell, transfer, and convey to the State of 

South Carolina, all their right, title, and interest to their 

boundary of land lying on both sides of the Catawba River, 

situated in the Districts of York and Lancaster, and which are 

represented on a plat of survey of 15 miles square, made by 

Samuel Wiley and dated the twenty-second day of February, one thousand seven hundred and sixty-four, and now on file in the 

Office of the Secretary of State." 

David Hutchison wrote his account of the treaty at the 

instance of Senator Isaac D. Witherspoon of York, apparently 

because the treaty encountered strong opposition in the state 

legislature. According to Douglas Summers Brown, "members of both 

Houses [proclaimed) that 'the settlers on the Indian land had 

cheated the Indians, and swindled them out of their 

possessions.'" Senator Witherspoon asked Hutchison for an 

authoritative account to defend the treaty, and he used it to 

"sway those of adverse opinions . " The state legislature 

confirmed the treaty. [Brown, p . 316.] 

The Treaty of 1840 was barely confirmed when it was thwarted 

by events . The Governor of North Carolina refused to allow the 

sale of land in Haywood County to the Catawba Indians . In 

Reminiscences of York District, Maurice Moore told of Catawbas 

7 
161 

straggling back through Yorkville. "North Carolina refused them 

a home, and they came back to the haunts of their forefathers, a 

living monument to the cupidity of the whites, which must excite 

the sympathy of every generous heart." 

The State commissioned Joseph F. White to search for an alternate tract of land, but did not offer to amend or 

renegotiate the treaty . Instead, the State proceeded with 

parceling out among the leaseholdersthe land acquired under the 

treaty. Lessees applied to the State for a survey of their 

leasehold; and when the survey was completed, they obtained a 

warrant for a deed and then a deed of conveyance from the 

Secretary of State. The deeds do not recite any consideration. 

Act No. 2807, Statutes at Large, Section III, confirmed the 

Treaty of 1840, and provided: "Each lessee shall pay to the Tax 

Collector, annua lly, one cent and a half per acre, or suc h 

additional rate of taxation as may hereafter be imposed, in order 

to refund the State the advances it may have made in the 

execution of said agreement ... at seven per centum per annum; to 

be paid at the same time that other taxes are paid . . . " 

Apparently, the landowners completed their payments in 1854, 

because a law passed that year, Act 4180, Statutes at Large, 

Section II, provides" ... That the proprietors of the said Catawba 

Indian lands be, and they are hereby, released from the payment 

of any further sum or sums of money on account of advances made 

by the State t o the said Catawba Indians ... " 

Aftermath of the Treaty of 1840 

In 1842, the State acquired the 630 - acre tract on the west 

bank of the Catawba River which remains the reservation today . 

According t o Douglas Summers Brown, "small groups of Catawbas 

wandered back" from Haywood County, because "tribal jealousies 

broke out [with the Cherokees] . .. With the 630-acre Reservation 

set aside, some feeble semblance of the old tribal unity 

reappeared . . . As the exiles gathered about, Allen Harris, who 

signed the Treaty of 1840 as lieutenant, became, f o r all 

practical purposes, ' Chief Man' . .. "Harris operated a ferry o n the 

river, and deserves remembrance, writes Brown, "because, as their 

leader, his scattered people rallied around him and took a new 

hold on tribal life." Brown, pp. 319 -321. 

The State withheld payment of "$2,500 upon removal to 

Haywood County," as provided in the treaty, because the Catawbas 

never removed themselves to Haywood County. The State apparently 

delayed other payments as well, possibly because they were funded 

by sales to leaseholders. In 1849, Governor Seabrook personally 

visited the Catawbas to determine their status, and reported 

finding "that the number of Catawba Indians is 110 --- 20 men, 43 

women, and 20 male and 27 female children under 10 years of age. 

Of the tribe, 56 are in North Carolina and 54 in this state." 

Seabrook acknowledged that the State's debt still due the 

8 
162 

Catawbas was "about $18,000 . " He noted that the Comptroller 

General had "made up a statement of the amount due the Catawba 

Indians under the treaty of 1840, allowing interest at 7% upon 

the amounts agreed to be paid, from the date at which they were 

to have been paid." He further noted that "for the amount thus 

adjusted, the state shall debit herself as debtor to the Catawba 

Inidans, and shall allow an interest of 6% payable annually; and 

said interest shall be divided in annuities per capita among the 

Catawba Indians." The State then began making payments to the 

Catawbas that continued throughout the rest of the 1800s, except 

during the Civil War, and into the 1940s. During this period of a 

hundred years, the State's appropriations for the Catawbas 

totaled $385,922 . 09, according to Dr. Thomas Blumer of the 

Library of Congress. 

At various times, the Catawbas sought to be removed to the 

west to live with the Chickasaws or the Choctaws. In an 1848 

letter to President Polk, the Catawbas in North Carolina asked 

for aid and confirmed the appointment of Samuel P. Sherrill as 

"our Agent in the recovery of our claims against the state of 

South Carolina and to remove us west, having been badly treated, 

cheated, and defrauded by persons who acted as agent for us 

before Mr. Sherrill's appointment . " [Brown, p. 324 . ] In 1848 (9 

Stat. 264) and again in 1854 (10 Stat. 316), Congress authorized 

$5,000 "to assist the [Catawbas] to emigrate and to sustain and 

settle them ... among some of the tribes West of the Mississippi 

River." p 329. However, the appropriation was never spent 

because the Chickasaws and the Choctaws never consented to 

receiving the Catawbas. 

The correspondence with President Polk and Congress brought 

the Treaty of 1840 squarely to the attention of the federal 

government. Yet no one in the Executive Branch or the Congress 

seems to have raised any question compliance with the Indian NonIntercourse Act or congressional ratification of the treaty . 

Assertion of Land Claim 

The letter to President Polk shows that soon after the 

Treaty of 1840, the Catawbas began to believe that they had a 

claim against the State . Though they did not press their claim, 

the legend of it passed from generation to generation . In 1904, 

Chief D. A. Harris retained an attorney, Chester Howe of 

Washington, D.C., to seek redress of its land claim. Howe 

petitioned the Department of Interior to bring suit on behalf of 

the Catawbas for recovery of their lands on the grounds that the 

Treaty of 1840 was void under the Non-Intercourse Act, and in any 

event, had never been fulfilled. The Department of Interior 

declined to bring suit because the Catawbas were "state" Indians 

who had never been recognized by the federal government. The 

Interior Department advised Howe to press the claims against the 

State of South Carolina . The Catawbas presented their claim to 

9 
163 

the state legislature, which asked the Attorney General for a 

legal opinion. In 1907, the Attorney General concluded that the 

Treaty of 1840 was valid because the Catawbas were state Indians 

with no standing under the Non-Intercourse Act and with no mo~·e 

than Indian title, or the right of occupancy, which the state as 

owner of the underlying fee could extinguish. In 1908, the 

Catawbas petitioned the Department of Interior once again; and 

once again, they were denied on the grounds that no relationship 

existed between the Federal government and the Catawba Indian 

tribe . 

Chester Howe died before he could bring suit for the 

Catawbas, the same fate that met A. R. McPhail of Charlotte and 

two other attorneys retained by the Catawbas. 

Told that they had no claim in court, in 1924 the Catawbas 

submitted to the Governor of South Carolina and the General 

Assembly a "bill of conditions as the final settlement of all 

debts owed by the State of South Carolina," stating that if 

passed, the law would make the State "free of any claim or claims 

of said Indian Nation," and its tribal members would no longer be 

"wards of the State of South Carolina." The petition appeared in 

the Journal of the Senate for February 21, 1924 . The Catawbas 

sought the following: 

(1) An area of good farm land, consisting of 25 acres be 

given per head to all members of said tribe, with deeds and 

titles giving full ownership. 

(2) Houses of good quality and of sufficient size (not to 

exceed 8 rooms and not less than 4 rooms) to accommodate the 

family placed on said farm. 

(3) Cattle, stock , barns, and other outbuildings necessary 

on such a farm, along with all necessary implements and utensils 

needed to cultivate said farm. 

(4) $100.00 to be paid each person per year for five years, 

as expenses while getting settled. 

(5) A town or city residence of equivalent value for any 

family selecting it in place of a farm settlement. 

Following the petition was a letter to the General Assembly 

from Governor McLeod, in which he wrote: 

"A proper and satisfactory settlement of our 

relationship with the Catawba Indians has long been a 

problem in South Carolina. These Indians have been 

faithful and loyal to the State from the days of the 

Revolution, and the unfortunate condition of this small 

remnant of a great nation is peculiarly appealing. 

10 
164 

"There has been submitted to you a proposed Bill 

for a final settlement for the relief of these 

Indians ... which originated with the Business Men's 

Evangelistic Club of Rock Hill. I wish to express my 

approval of this measure." 

Despite the Governor's approval, the bill did not pass, but 

the Catawbas did not give up. On January 9, 1929, Chief Samuel 

T . Blue wrote the following letter to the Commissioner of Indian 

Affairs: 

"I am chief of the Catawba Indians, now located in 

York Co., South Carolina, looking forward for final 

settlement from South Carolina on land lease, which has 

been standing for over 130 yrs. We are still wards of 

this State, and have been receiving an annuity at about 

$40 per head. 

"I am kindly asking your office to inform me, as 

to how you are settling with the Indians on different 

reservations. Do you give them certain amount of land 

with houses per head or to a family? Do you include 

stock and farm implements or give them so much money? 

"If you will give me an out line of this question 

will be greatly appreciated. So should the State make 

settlement with my tribe I will have an idea what to 

look for." 

The General Assembly did not authorize settlement funds 

until 1936, when $100,000 to fund settlement of the claim and a 

rehabilitation program for the tribe was approved, provided 

arrangements could be made with the federal government to 

undertake the program. The appropriation lapsed because nothing 

was worked out with either the tribe or the federal government. 

However, Dr. Frank G. Speck, an anthropologist from the 

University of Pennsylvania, visited the Catawba reservation 

during 1936, and learned of settlement offers . At the request of 

Chief Blue, he wrote the Commissioner of Indian Affairs the 

following letter on January 26, 1937: 

"Being at work for a while among the Catawba of 

South Carolina, I have had occasion on the side to 

become acquainted with one of the difficulties now 

confronting the tribe, and which I have been requested 

by my friend Chief Sam Blue to mention to you in the 

hope that you may be able to offer him some advice. 

"As I am informed, the State is offering the tribe 

a settlement of outstanding unpaid obligations 

concerning land transactions of the past. The Chief 

feels that the amount offered is not commensurate with 

the value of the liability. The State wants the tribe 

to settle for $250,000, which would be a pittance for 

144,000 acres, and to divide the amount among the 217 

11 
165 

members of the tribe; $460 per capita upon settlement 

for the firast two years; $230 per capita for the third 

year . Under the present annuity payment system, they 

r eceive $27.80 per capita ... "In short , I am asked to request of you the favor 

of a reply giving a word of advice in regard to pros 

and cons of the general idea.• 

Professor Speck 's letter prompted a visit to Rock Hill by 

D'Arcy McNickle, the Administrative Assistant to the 

Commissioner. McNickle found Professor Speck misinformed about 

the settlement offer; the State had appropriated $100,000, not 

$250,000; and it wanted these funds to be used for rehabilitatio1 

of the tribe, as well as settlement. McNickle's visit lasted a 

week and resulted in a lengthy report on the Catawbas, which 

finally laid the basis for an agreement. 

Memorandum of Understanding with Federal Government 

An agreement with the federal government was still a long 

time coming, because officials at Interior felt that "we don't 

need to adopt any more Indians." Congressman J ames P. Richards 

described his frustrations in trying to win federal assistance 

for the Catawbas in a floor statement made in the House on May 2, 

1944, after the agreement was finally concluded : 

"These Indians compose the only Indian group in 

South Carolina still retaining their tribal identity. 

They reside on a State reservation. When I came to 

Congress, I introduced bills which would make the 

Catawbas wards of the Federal Government. At first , I 

ran up against a stone wall of opposition . The Office 

of Indian Affairs and the Indian Affairs Committee of 

the House refused to report the bill favorably on the 

ground that the members of this tribe, like a few other 

small tribes in the United States, had never been wards 

of the Federal Government, and that there was no basis 

for Federal responsibility. I then decided to pursue 

another course. I had numerous conferences with Mr. 

Collier and his assistant, Mr. Zimmerman, of the Office 

of Indian Affairs, with a view to getting Federal aid 

for the tribe. I also went over the history of the 

Catawbas with Secretary of Interior Ickes. He showed 

great sympathy and interest and instructed Mr. Collier 

to go the limit under existing law in order to remedy 

the conditions of the Catawbas. A plan was then worked 

out whereby it was proposed that the State of South 

Carolina and the Federal Government enter into an 

agreement to rehabilitate these Indians." 

The agreement referred to by Congressman Richards was a 

Memorandum of Understanding (MOU) made on December 13, 1943, by 

12 
166 

the State, the Office of Indian Affairs, the Farm Security 

Administration, and the Business Committee of the Catawba 

Indians. Under the MOU, it was agreed that the Catawbas would 

become citizens of South Carolina . The State agreed to spend $75,000 purchasing land to add to the 630-acre reservation and to 

appropriate at least $9,500 annually in 1944, 1945, and 1946, to 

be spent by the Farm Security Administration in helping the 

Catawbas establish farms . The Office of Indian Affairs agreed to 

provide $7,500 under the Johnson-O'Malley Act for support of the 

Catawba Indian Association, and the Farm Security Administration 

agreed to make rehabilitation loans. In keeping with this MOU, 

the state purchased 3,434 acres of land, and conveyed title to 

the United States for the benefit of the Catawbas. 

The State wanted the agreement to extinguish finally all 

tribal claims. But the Commissioner of Indian Affairs advised 

the State Auditor: "In the absence of court determination, we are in no position to pass upon the justice of these claims, and I 

think we could not become a party to any action seeking to quiet 

these claims." [Letter from William Zimmerman, Acting 

Commissioner of Indian Affairs, to J. M. Smith, State Auditor, 

August 28, 1941.) The f i rst draft of the MOU, nevertheless, 

contained a paragraph calling for the Catawbas to execute a "release and quitclaim of all claims and actions, of whatsoever 

nature , against the State of South Carolina." On advice of the 

Solictor of Interior, Fowler Harper, the release was deleted in 

the final draft of the MOU. 

After dealing with the release, the Commissioner also tried 

to make clear that the Federal Government sought merely to help 

the Catawbas through the Farm Security Administration, and not to 

make them "wards of the government." He recalled that "Congress 

refused to approve legislation designed to bring the Catawba 

Indians under the jurisdiction of the Federal Government. We 

should not want any action on the part of this Office to create 

the impression that we are attempting to accomplish indirectly 

what the Congress refused to permit us to do directly." In a Litigation Report prepared in 1978 , the Solicitor's office noted 

that "The agreement was designed only to effect a limited 

rehabilitation program and the Department claimed not to 

recognize or undertake any general trust relationship with the 

Tribe by virtue of the agreement." 

The Office of Indian Affairs was enthusiastic about the MOU. 

Assistant Commissioner Ward Shepard hoped that the "tribe can become not merely self-supporting, but can become a credit to the 

State." In time, however, the Catawbas became dissatisfied with 

the services and negligible benefits flowing to them from the 

federal government . They shared an agent who lived with the 

Cherokee Tribe and who visited their reservation only a few times a year . Although the Farm Security Administration helped them 

establish farms, they were unable to own any part of the 3,343 

13 
167 

acres of farm land individually. 

Termination of MOU 

As the Catawbas were growing dissatisfied with the federal 

government, the government was growing doubtful of its Indian 

policies. In 1953, the federal government's policy toward Indian 

tribes shifted in a new direction. House Concurrent Resolution 

108 was passed, and Congress declared that henceforth the 

government's policy was to make Indians within the United States 

subject to the same laws as other persons and to terminate any 

special status they might have had under federal law. In 

September 1954, a special House Subcommittee on Indian Affairs 

reported that the Catawbas were among the Indian tribes able to 

manage their own affairs and ready for termination. The tribe 

concurred in the report because they "could not productively 

utilize their reservation without either federal assistance or 

the ability to secure credit." [Testimony of Chief Gilbert Blue 

before the House Interior Committee, on H.R. 3274, June 12, 

1979 .] 

On January 3, 1959, Congressman Robert W. Hemphill brought 

the following resolution to a Catawba tribal meeting for passage: 

Now, Therefore, BE IT RESOLVED that, in view of 

the benefits that will accrue to all of the members of 

the tribe by the equitable distribution of the tribal 

assets, its General Council assembled in regular 

meeting hereby formally request the Honorable Robert W. 

Hemphill, our Congressman from the Fifth District, to 

introduce and secure passage of appropriate legislation 

to accomplish the removal of Federal restrictions 

against the alienation of Catawba land, in York County, 

South Carolina, so that it can be patented, and to 

provide for an equitable distribution of all the 

Catawba Tribe, and to provide for the protection of 

minors and incompetents, and do all those things 

necessary to accomplish the purposes of this 

legislation at no cost to the Catawba Indians, or claim 

against their assets, and that nothing in this 

legislation shall affect the status of any claim 

against the State of South Carolina by the Catawba 

Tribe." [Emphasis added.] 

Congressman Hemphill advised the Bureau of Indian Affairs of 

the resolution and asked the Bureau to draft legislation. 

Hemphill subsequently introduced H. R. 6128, "The Catawba Indian 

Tribe Division of Assets Act." Because of doubts of a quorom and 

the tribe's understanding of the bill, Congressman Hemphill met 

again with the tribe on March 28, 1959. Following his 

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168 

explanation of the bill, the Catawbas present voted in favor of 

its passage. 

"The Catawba Indian Tribe Division of Assets Act" 

("Termination Act" or "Act") was signed into law by President 

Eisenhower on September 21, 1959, and codified at 25 U. S.C. 

Section 931-938 . The Act called for a plebiscite among all adult 

Catawbas; and on July 1, 1960, the Secretary of Interior 

published a notice in the Federal Register that a majority of the 

adult Catawbas had indicated their agreement to the provisions of 

the law, making the law effective as of that date. 

Section 5 of the Act called for revocation of the tribal 

constitution, after which the tribe would no longer exist as a 

federally recognized Indian tribe. Section 5 further provided 

that after the tribal constitution was revoked, "all statutes of 

the United States that affect Indians because of their status as 

Indians shall be inapplicable to the m, 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." On July 

1, 1962, the tribe ' s constitution was revoked, and the 

termination process was completed. Pursuant to the Division of 

Assets Act, the 3,343 acres of land held in trust by the 

Secretary of Interior were partitioned partly in kind and partly 

by liquidation, followed by pro-rata distribution of the 

proceeds among members of the tribe. 

Section 6 of the Termination Act "allowed those interested 

in organizing under State law to carry on any of the 

nongovernmental activities of the group . " In 1975, the Catawbas 

formed a non-stock, non-profit corporation under state law by the 

name of the Catawba Indian Tribe, Inc. in order to participate in 

federal categorical assistance programs which were becoming 

available to the tribe through various federal agencies, such as the Co mprehensive Employme nt and Trai n i ng Act. A five-member 

Executive Committee was elected as governing body, and Gilbert 

Blue was elected Chief. 

In the same year, the First Cir cuit Court of Appeals decided 

Passamaquoddy Tribe v. Morton, 528 F . 2d 370 (1st Cir. 1975), and 

extended the reach of the Nonintercourse Act. When the 

Passamaquoddy petitioned the Interior Department to sue the State 

of Maine, Interior took the same position it had taken in 1907 in 

when the Catawbas sought for Interior to sue South Carolina . 

Interior held that the Nonintercourse Act applied only to 

federally recognized tribes; that the Passamaquoddy had never 

entered into a treaty with the federal government or received 

benefits from the Bureau of Indian Affairs; and that 

consequently, the Nonintercourse Act did not apply to their 

tribe. The Passamaquoddy brought suit themselves; and in 1975, 

the district court rejected the distinction bewteen "federallyrecognized" tribes and " state tribes." It held that the 

15 
169 

Passamaquoddy were a tribe within the meaning of the 

Nonintercourse Act; and that the Act created a trust relationship 

between the federal government and the tribe. The Nonintercourse 

Act first become law in 1790; but it was not until 1975 that a 

court interpreted its restrictions to apply to all tribally held 

land within the United States, regardless of whether the tribe was federally recognized or its land was in "Indian country." 

In 1970, the Oneida Nation of New York brought suit against 

the County of Oneida, New York, alleging that their ancestors had 

conveyed 100,000 acres of aboriginal land to the State of New 

York in 1795, and that the conveyance was void because it was 

never approved by Congress as required by the Nonintercourse Act. 

In 1974, the Supreme Court overruled the lower courts, which had 

dismissed the suit, and held that the "the possessory right 

claimed by [the Oneidas] is a federal right to the lands at 

issue." 414 U.S. 661, at 671 (1975). The State of New York 

contended that the Oneidas' claim was time-barred; but the 

Supreme Court held that state time-bars, such as laches and 

adverse p o ssession, do not "apply of their own force to Indian 

land claims," due to the Supremacy Clause of the Constitution. 

470 U.S. 226 (1985); footnote 13, citing Ewert v. Bluejacket, 259 

U.S. 129 (1922) . Furthermore, the Supreme Court found "no federal 

statute of limitations governing federal common-law actions by 

Indians to enforce property rights." 

Other eastern Indian tribes --- the Narragansett in Rhode 

Island, the Mashpee in Massachusetts, the Cayuga and St. Regis 

Mohawk in New York --- began asserting old land claims and 

bringing suit in federal court. The Executive Committee 

authorized Chief Blue to contact the Native American Rights Fund 

(NARF) in regard to its claims under the Treaty of Nations Ford, 

which he did on June 9, 1975. NARF reviewed the case and advised 

the Tribal Executive Committee on May 12, 1976, that it "had a 

legal claim to the lands of its 1763 reservation, and while the 

case is no t a 'sure thing,' it stands a good enough chance of 

success that it should be pursued by the tribe in federal court." 

On May 26, 1976, the Tribal Executive Committee adopt e d a 

resolution retaining NARF as its attorney. On July 17, 1976, the 

tribe, at a tribal meeting, authorized the Executive Committee 11 to undertake such actions as may be necessary to r esolve and 

finally settle the status of lands which were taken from the 

Catawba Indians under the Treaty of Nations Ford in the year 1949 

[sic), including bringing the matter before the South Carolina 

Congressional Delegation, the governor of the State of South 

Carolina, the United States Department of Interior, and the 

Federal Courts, if necessary." 

On August 9, 1976, the Governor and the Congressional 

Delegation were put on notice of the Catawbas' claim by letter 

from NARF. In response, Attorney General McLeod met with the 

Catawbas' attorneys and became convinced that their claim was not 

16 
170 

frivolous. Early negotiations with the Catawbas' attorneys were 

conducted by the Attorney General; but in April 1978, at the 

request of the Legislative Delegation, the General Assembly 

established a "Catawba Claim Study Commission," which was chaired 

by Rep. Robert L. McFadden, chairman of the House Judicviary 

Committee. 

Following meetings with the Catawbas, the elements of any 

settlement acceptable to the state were laid out in a letter from 

Attorney General McLeod to Congressman Kenneth L. Holland, dated 

October 17, 1977, as follows: 

(1) The acquisition of any lands by the Tribe should 

be by voluntary conveyance, and the power of condemnation should 

not be vested in any authority for this purpose. 

(2) The size of the Catawba reservation, which should 

be acquired only by voluntary conveyance, should not exceed 4,000 

acres . 

(3) The tribal development fund, if established, 

should be derived principally or wholly from federal funds and 

should be held in trust. 

(4) Any settlement lands should be subject to the 

criminal laws and jurisdiction of the State of South Carolina; 

this jurisdiction and regulatory authority of the State should 

include regulation of water rights and hunting and fishing 

rights. 

(5) For purposes of the settlement act, tribal 

membership should be limited to persons appearing in the 1961 

tribal role and their direct descendants with a specific blood 

quotient to be set forth in the act. 

NARF recommended that the Catawbas also approach the 

Department of Interior in an effort to win their help in settling 

the claim . In November 1976, the Catawbas sent a formal 

litigation request to the Department of Interior. According to 

Interior's Solicitor, Leo M. Krulitz, the Department determined 

that the Termination Act "did not abrogate the Secretary's 

responsibility to aid the Tribe in the assertion of its claim. 

Hence on August 30, 1977, the Department of Interior wrote the 

Department of Justice requesting consideration of litigation on 

behalf of the Catawba Tribe, but recommending that "our initial 

role should be to seek a settlement of the claim." The Solicitor 

said in his letter to Justice that "the Tribe can establish a 

prima facie case under the Non-Intercourse Act that the Treaty of 

1840 was void, and that the Tribe is therefore entitled to 

recovery of its reservation." 

Before Interior and Justice could meet with the Catawbas and 

"seek a settlement of the claim," a split developed within the 

tribe between Catawbas who wanted a settlement for the tribe as 

an entity and those who wanted per capita cash payments . Those 

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171 

favoring a cash settlement sued in state court and obtained a 

temporary order restraining settlement negotiat ions . The dispute 

was resolved by the appointment of a joint negotiating committee. 

On June 30, 1978, Attorney General Griffin B. Be l l advised 

Secretary of Interior Cecil D. Andrus about five Indian c laims, including the Catawba claim. He referred to a meeting with 

Andrus on November 29, 1977, at which they agreed that "the 

Admninistration should make an omnibus proposal t o Congress 

t o settle these c laims." Bell advised Andrus that he decided 

"not to bring suit against landowners in New York, South 

Carolina, and Louisiana." He said that he had "a number of 

questions about the legal and factual issues in these suits, and 

question whether they can be won. Furthermo re , the fact that the 

landowners are completely innocent of any wrongdoing weighs 

heavily against suing them. Finally, the Administration's policy 

decision to relieve s mall landowners in Maine from suit through a 

legislative settlement recommends the same relief to o t hers 

similarly situated." 

In October 1978, So licitor Krulitz met with the 

Catawbas' joint negotiating committee and the ir attorneys. In the 

words of Solicitor Krulitz, "At that meeting, the Tribe proposed 

to settle their claim for a dollar figure far beyond what we were 

willing to consider. That proposal was rejec ted on the spot, and 

the Tribe was encouraged to devel op a less costly proposa l ." Two 

days later, the Department o f Interior withdrew its litigation 

request to the Department of Justice "in an effo rt to emphasize 

that we have no intention of pursuing litigation until and unless 

all reasonable avenues o f settlement have been e x h aust e d." 

Negotiations between the Catawba Claim Study Commission and 

the Catawbas culminated in a d raft settlement agreement titled 

"Work Group 8, " dated April 1 980 . On October 27, 198 0, the 

Catawba Claim Study Commission met and came to an impasse over 

the size of the reservation. A subcommittee of the Commission 

had recommended that the Catawbas be allowed t o buy up to 4,200 

acres from willing sellers, which would be added to the 

reservation of 630 acres. The Commission voted 4-3 against 

expansion of the reservation. Commission Chairman McFadden , Senator Don S. Rushing, and Godfrey K. Nims voted for allowing 

expansion; Senator Coleman Poag, Representative Tom Mangum, 

George W. Dunlap, and Oliver Nisbet voted against expansion. 

Litigation of Catawba Land Claim 

The next day, October 28, 1980, the Catawba Indian Tribe of 

South Carolina, also known as the Catawba Nation of South 

Carolina, brought suit on its claim, naming the State of South 

Carolina and 75 individual landowners, corporations, and local 

government entities as defendants. The named defendants were sued 

"both individually and as representatives" of a class o f 

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172 

landowners exceeding 27,000 people . In the Complaint, the 

plaintiff also indentified itself as Catawba Indian Tribe, Inc., 

successor to the Catawba Indian Tribe. The Complaint alleges 

that "from time immemorial ... the Catawba Tribe owned and occupied 

a tract of land roughly 15 miles square ... surveyed and set aside 

for exclusive use and occupancy pursuant to two treaties with the 

British Crown in 1760 and 1763 ... and surveyed by Samuel Wyly," as 

shown on his plat dated February 22, 1764, attached to the 

Complaint as Exhibit A. The Complaint alleges that these two 

treaties provided for the Catawbas to be "permanently and quietly 

settled on a tract of land fifteen miles square; and that by 

virtue of King George III's Proclamation of 1763, no deeds were 

to be issued in "lands which had been reserved to Indians." The 

Complaint recites that on July 22, 1790, Congress enacted the 

Indian Trade and Intercourse Act, now codified at 25 U.S.C. 

Section 177, providing "then as it does now that no interest of 

any kind may be acquired in the lands of any Indian tribe other 

than by treaty .. . to which the United States is party. Any 

interest acquired in violation of 25 U.S.C. Section 177 is void 

in law and equity." The Complaint alleges that on March 3, 1840, 

the State of South Carolina, "without the consent and 

participation of the United States, concluded the Treaty of 

Nation Ford with the Catawba Indian Tribe, "purportedly 

extinguishing the Indian title of the Catawba tribe to the entire 

15 mile square tract .. . " The Complaint asserts that "The 

Congress of the United States has never ratified or otherwise 

consented to the alienation of the Catawba Indian Reservation as 

required by 25 U.S.C. Section 177," and implies that Congress 

could not now consent without "just compensation" because the 

"Tribe's right and title to these lands is now and has since 1789 

been protected by the Fifth Amendment to the United States 

Constitution." In the prayer for relief, Plaintiff asked that the 

action be maintained as a class action. It asked the court to 

declare its right to possession of the 144,000-acre tract and restore it to possession. It also asked for trespass damages, 

rent, and profits "for the entire period of plaintiff's 

dispossession . " 

Following the first staus hearing, the District Court, on 

agreement of the parties, postponed filing of Answers to the 

Complaint until after resolution of the tribe's motion to certify 

the defendant class. The District Court then delayed 

consideration of plaintiff's motion to certify the defendant 

class in favor of hearing defendants' motion for summary judgment 

based on the effects of the Catawba Division of Assets Act. 

For purposes of the summary judgment motion, the court had 

to assume what was alleged in the Complaint: that the Catawbas 

held a constitutionally protected property right in its 144,000-

acre tract. The question presented was whether the Catawba 

Division of Assets Act had the effect of terminating the 

federally protected status of the 144,000-acre tract either by 

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173 

application of state law or by implicitly ratifying the Treaty of 

Nation Ford. The District Court held that the Act had done both. 

Specifically, the District Court held that the 1959 Act 

extinguished the tribe's existence; ratified the Treaty of 1840; 

terminated any trust relationship between the tribe and the 

federal government; and made state law applicable to the tribe's 

claim. (718 F.2d 1291, 1295.) 

The Catawbas appealed the District Court's order for 

judgment to the Fourth Circuit Court of Appeals . A three-judge 

panel of the Court of Appeals handed down the Court's initial 

decision on October 11, 1983, reversing the District Court by a 

vote of 2 - 1. The Court began its opinion by outlining the 

requirements of a prima facie case for violation of the 

Nonintercourse Act. The Court said the tribe must show: 

(1) That it is or represents an Indian tribe within the 

meaning of the Nonintercourse Act . 

(2) That the land in issue is covered by the Noninterc ourse 

Act as tribal land. 

(3) That the United States has never approved or consented 

to the alienation of the tribal land. 

(4) That the trust relationship between the United State s 

and the tribe, established by coverage of the Nonintercourse Act, 

has never been terminated or abandoned. 

As the Court of Appeals put it, the "principal issue" in 

this case was whether the Catawba Division of Assets Act 

"precludes the tribe from relying on the Nonintercourse Act and 

subjects its cla im to the South Carolina statute of limitations." 

718 F.2d 1291, 1295 . 

The Court reviewed the legislative history and the Catawba 

Division of Assets itself and found nothing to "suggest any 

congressional intent to affect any c laim the Tribe might have 

against South Carolina." The only purpose of the Act was to "end 

federal superv ision and assistance arising out of the 1943 

Memorandum of Understanding." 

"Clearly," said the Court of Appeals, "Congress did not intend the Division of Assets Act . .. to end the Tribe's 

existence." 718 F . 2d 1291, 198. Nor did the Act end the trust 

relationshi p between the Tribe and the federal government. The 

Court cited the Passamaquoddy decision (528 F.2d 370, 379), which 

held that the Nonintercourse Act itself creates a trust 

relationship, "even though federal officials charged with 

supervision of Indian Affairs disc laim any r e sponsibility for the 

Tribe . " The Court acknowl e dged that Congress may terminate the 

relationship, "but its intent to do so must be plain and 

unambiguous to be effective." 

The Court rendered Section 5 of the Termination Act (" . . . all 

20 
174 

statutes of the United States that affect Indians because of 

their status as Indians shall be inapplicable to them ... ) to mean 

individual Indians and not the tribe. Basically, the Court felt. 

that it could not "attribute to Congress an intention to bar by 

the 1959 Act the Catawba's claim to tribal lands . . . As we have 

pointed out, the Catawbas had been assured by a representative of 

the Bureau of Indian Affairs that their resolve to protect their 

claims against South Carolina would not be affected by the Act ." 

Having found that the Nonintercourse Act still applied, the 

Court held that "the Nonintercourse Act and the supremacy clause 

preempt state law defenses, such as adverse possession or 

statutes of limitation, which might otherwise preclude the 

tribe's suit." Mohegan Tribe v . Connecticut, 638 F.2d 61 2, 614-

615. 

The Court of Appeals reversed the District Court and 

remanded. Defendants petitioned for an en bane hearing, but by a 

4-3 ~ curiam decision, the full Court upheld the panel and 

Judge Butzner's decision . 

Defendants appealed the Fourth Circuit Court's decision to 

the Supreme Court, and the Supreme Court handed down its decision 

on June 2, 1986 . 106 S.Ct 2039 . The Supreme Court framed the 

"specific question presented" simply as follows: "whether the 

State's statute of limitations applies to the Tribe's claim." 

The Court said that the "answer depends on an interpretation of a 

statute enacted by Congress in 1959 to authorize a division of 

Catawba tribal assets." By 5-3 decision, the Court held that the 

State's statute applied, but it did not "reach the question 

whether it bars the claim." 

The Court of Appeals had read Sec tion 5 of the Termination 

Act to subject individual Indians to State law but not the tribe. 

The Supreme Court read the same section and found it plainly to 

mean that the tribe as well as its members would be subject to 

all state laws. The Court of Appeals stressed the assurances 

given the tribe that its claim against the State would be 

unaffected by the Act. The Supreme Court found that "the status 

of the claim remained exactly the same immediately before and 

immediately after the effective date o f the Act, but the Tribe 

thereafter had an obligation to proceed to assert its claim in a 

timely manner as would any citizen .. . " 106 S.Ct 2039, at 2046. 

In the Oneida II decision (lOS S.Ct. 1245), the Supreme Court 

held that the appli cation of State statutes of limitation to Indian land claims would violate federal policy, but the Court 

said this rule applied "only in the absence of a specific 

congressional enactment to the contrary." 106 S.Ct. 2039, 2044 . 

The Court said, "We have long recognized that, when Congress 

removes restraints on alienation by Indians, state laws are fully 

applicable to subsequent claims." 106 S.Ct 2039, 2045. 

21 
175 

The Supreme Court concluded by stating: "The District Court 

held that respondent's claim is barred by the South Carolina 

statute of limitation. The Court of Appeals' construction of the 

1959 federal statute made it unnecessary for that court to remove the District Court's interpretation of state law. Because the 

Court of Appeals is in a better position to evaluate such an issue of state law than we are, we remand the case to that court 

for consideration of this issue." 

On remand, the defendants asked the 4th Circuit Court of 

Appeals to certify these questions of South Carolina real 

property law to the South Carolina Supreme Court since these were uniquely questions of state law. The Court of Appeals granted 

their motion and certified the questions to the South Carolina 

Supreme Court for resolution. The South Carolina Supreme Court 

declined the request, leaving the Fourth Circuit to decide the 

questions itself. 

Defendants relied on the Supreme Court's dictate that the 

plaintiff "had an obligation to assert its claim in a timely manner as would any other person or citizen within the State's 

jurisdiction," after July 1, 1962. Defendants said that under 

South Carolina law, "timely" meant within ten years after the 

tribe's termination, and offered the Court of Appeals two South 

Carolina laws that seemed to bar the Catawbas' claim altogether. 

Each implied that the Catawbas' suit should have been filed 

within ten years after July 1, 1962, when state laws became fully 

applicable to the tribe: 

- Section 15-3-370, South Carolina Code of Laws, 1976, 

applies to claimants under a disability and stays the time 

allowed them for suing, but requires that suit be brought within 

ten years after the disability has ceased . Defendants argued 

that the Catawbas were wards of the United States prior to the 

Catawba Termination Act, and thus were under a legal "disability" 

and could not sue or be sued. Defendants contended that this 

statute too required the Catawbas'suit to be commenced within ten 

years after they ceased being wards of the federal government, or before July 1, 1972. - Section 15-3-340, South Carolina Code of Laws, 1976, 

requires an owner seeking to recover possession of land to have 

been "seized and possessed" of the land within ten years prior to 

commencing suit . Since the Catawbas acknowledge that they were not in possession of any of the land they claim within ten years 

before October 28, 1980, defendants argued that Section 15-3-340 

barred the Catawbas from suing. 

The Court of Appeals disposed of Section 15-3-370 by ruling 

that it applied only to infants, the insane, and the imprisoned. 

The Court of Appeals agreed that Section 13-3-340 required the 

Catawbas to be "possessed" of the property they claimed within 

ten years of bringing suit, and acknowledged that the Catawbas 

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could not possibly show possession within this time. "Standing 

alone,• said the Court, "Section 15 - 3-340 would bar the claim .• 

But the Court found that this statute did not stand alone; it had 

to be read in conjunction with Section 15-67-210, South Caro lina 

Code of Laws, 1976; and Section 15-67-210 essentially means that 

"possession follows title." According to the Court of Appeals, 

the Catawbas had made out a case of Indian title "dervied from 

aboriginal posse ssion ... dignified by royal grant." To 

defendants' argument that this was not "legal title," as Section 

15-3-340 required, the Court replied that in several respects, 

"Indian title has aspects superior to fee simple title." Indian 

title cannot be sold or conveyed without consent of the federal 

government; and i n S1lits for trespass or ejectment, state timebars did not apply unless Congress expressly applied them . 

Combining Section 15-3-340 and Section 15-67-210, the Court 

held that South Carolina law barred "the tribe's claim against 

each person who holds and possesses property that has been held 

and possessed adversel y f or 10 years after July 1, 1 962, and 

before October 28, 1980, without tacking except by inheritance , 

in accordance with South Carolina's tacking doctrine. The 

statutes of limitation do not bar the tribe's claim against other 

persons." (865 F.2d 1444, 1456 .) 

On remand, 46 defendants filed affidavits supporting 

summary judgment in their favor. After an exchange of briefs and 

two hea rings, the District Court entered summary judgment in f our 

o rders for judgment . In all, more than a thousand parce ls o f 

land and 29 defendants were released from the suit. The Catawbas 

appealed each order for judgment to the Court of Appeals. 

The Catawbas renewed their motion for class certification. 

On February 19, 1991, Judge Willson filed an Order Denying 

Certification Pursuant to 28 U.S .C. Section 1292(b). Judge 

Willson based the order on the following grounds: 

(1} There is no risk that adjudication of this case wi t h 76 

defendants will impair the defenses available to the absent 

defendants. 

(2) The certification of a class of some 27,000 landowners 

would include "a large number of persons ... [against whom] by 

reason of defenses ... the plaintiff possesses no colorable claim." 

(3) The defendant c lass was not so •numerous that joinder 

is impracticable," b ecause plai ntiff's claim as to all perso ns 

other than the named defendants who were properly served . .. are 

barred by the South Carolina presumption of grant doctrine. The 

South Carolina presumption of grant doctrine provides that the 

passage of twenty years of possession of land under a claim of 

ownership bars the assertion of claims against the possessor the 

land. D. W. Alderman & Sons Co. v. McKnight, 95 S.C. 245, 78 S.E. 

982, 986 (1913 ) ; Powers v . Smith, 80 S.C. 110, 61 S.E. 222, 223 

(1908) . Unlike the ten-year statutory limitation period under 

S.C. Code Section 15-3 -3 40 and 15-67-210, the possession of 

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successive holders of the land may be tacked to make up the 

twenty-year period for the presumption of grant . . . Counting from 

the date when, according to the United States Supreme Court, 

South Carolina limitations doctrines became applicable to the 

plaintiff's claim, the absent class members' twenty-year period 

of possession was fulfilled on July 1, 1962. The filing of the 

plaintiff's complaint in the present case did not toll the 

running of this limitation period as to persons other than the 

properly served defendants because as to absent members of the 

proposed defendant class the pre-requisites for tolling, that the 

complaint notify the defendants of the substantive claims against 

them, have not been satisfied . Davis v. Bethlehem Steel Corp., 

760 F . 2d 210 (4th Cir.) ." 

Because the order Denying Class Certification was not a 

final order, it was not immediately appealable. The Catawbas, 

therefore, petitioned the Fourth Circuit Court of Appeals for a 

writ of mandamus directing the District Court to certify the 

defendant class. On August 14, 1992, the Court of Appeals denied 

the appeal, holding that the Catawbas had "failed to establish 

that the district court's refusal to certify a defendant class 

constitutes such an abuse of discretion ... as to justify the 

extraordinary remedy of mandamus . " The Court noted that this was 

not necessarily the decision it would have reached •were it the 

trial court," but it reviewed the trial court's reasons and 

found them adequate . In a final footnote, the Court mentioned the 

District Court ' s alternative sustaining ground, namely, that the 

Catawbas had not tolled the statute of limitations against 

unnamed defendants by filing their complaint and motion for class 

certification in October 1980, and as a consequence, more than 

twenty years had run since July 1962, making the twenty- year 

presumption of a grant a defense available to these defendants. 

The Court refused to rule on the issue, stating: "In view of our 

disposition of this case, and the limited nature of our inquiry 

on the petition for mandamus, we express no opinion on that 

issue . '' 

Settlement Negotiations 

Settlement negotiations ende d with commencement of the 

Catawbas' suit. It was difficult for the parties to take up 

negotiations because of their polarized positions on the claim. The Catawbas' attorneys initially insisted that there were no 

defenses; that Passamoguoddy made the Nonintercourse Act 

applicable; that the Treaty of 1840 was void under the 

Nonintercourse Act because it was never ratified; that Oneida 

made state time-bars to the claim inapplicable; and thus the 

Catawbas had a right to recover both possession and damages . The 

defendants, on the other hand, proved that there were defenses, 

winning complete dismissal of the suit on their first responsive 

pleading, a motion to dismiss . This did not make the defendants 

amenable to settlement; and the Fourth Circuit's reversal of the 

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178 

District Court did not make the Catawbas amenab le . Until the law 

of the case was settled, and each side could evaluate the merits 

of the claim and the available defenses, settlement negotiations 

hung in abeyance. 

In January 1989, after the Court of Appeals handed down its 

decision on South Carolina law, defense counsel met with 

Congressman John Spratt in Washington, and asked him to use his 

"good offices" to restart negotiations for settlement. Spratt 

made contact with Don B. Miller o f the Native American Rights 

Fund; with the House Interior Committee staff; and with Secretary 

Lujan, and his executive assistant, Timothy Gl idden. He also 

contacted Senator John C. Hayes and the York and Lancaster County 

Legislative Delegation. Gove rnor Campbell had indi cated his 

s upport f or settlement, and Spratt sent Governor Campbe ll a 

background memorandum on the claim and a proposal for 

negotiations. In September 1989, Congressman Spratt, Senator 

Hayes, and Governor Campbell met i n Columbia, along with Crawford 

Clarkson, State Tax Commissioner, Warren Tompkins, Executive 

Assistant to the Governor, Tom Kahn, Legislative Co unsel to 

Congressman Spratt, and Robert Hopkins, District Administrator. 

Following this meeting, the Governor set up a Catawba Claim 

Advisory Committee and made Crawford Clarkson its chairman. In 

January 1990, Secretary Lujan agreed for the Interior Department 

to take part in negotiations; and a series o f negotiating 

sessi ons with the Catawbas took place over t he next two years. 

In June 1991, an offer of settlement was submit ted to the 

Ca tawba s, which included $37.5 million in payments, partly 

distributable per capita; the right for an expanded reservation 

up t o a maximum area o f 2,500 acres; application o f state 

statutory and regulatory l aw to the reservation, with provision 

for tribal civil and criminal courts; tax exemption of 

reservation lands; tribal sales taxes equal to local sales taxes; 

and gambling limited to bingo under a spec ial license from the 

state. The Catawbas re jected the offer and counter- off ered 

approximately twice the dollar amount proposed. 

In Oc tober 1991, the parties met at the Catawba Community 

Center on the Reservation, and negotiators for the state informed 

members o f the Executive Committee that their counte r-offer could 

not be met. Unless a lower o ffer was f orthcoming and t here was 

agreement by January, the Executive Committee was warned that the 

legislative window for 1992 would be missed . The Catawbas were 

clearly reluctant to bring their counter-offer down until the 

Fourth Circuit had ruled on their two pending appeals. On 

February 4, 1992, the Fourth Circuit heard oral argument of the 

two appeals; and the argument did not seem to augur well for the 

Ca tawbas. By the end of February, the Catawbas lowered their 

counter-offer, but continued to seek substantially more than the 

$37.5 million proposed in June 1991, and substantial autonomy on 

the reservation, including gaming and gambling rights comparable 

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to the Indian Gaming Regulatory Act . 

Before the counter-offer could be answered, the Catawbas' 

attorneys announced that they would have no choice but to bring 

62,500 lawsuits against the unnamed defendants before October 19, 

1992 . By their calculation, the limitation period of the claim was tolled or stopped when the Complaint and Motion for 

Certification of De fendant Class was filed on October 28, 1980; 

and it did not start running again until February 19, 1991, when 

the District court denied their motion. Thus, by their count, 

twenty years would have run by October 19 , 1992 ; and at that 

point, South Carolina's twenty-year presumption of a grant would 

be available to any defendant landowner who was sued. To buy 

time both for negotiating and implementing a settlement, the 

Catawbas' attorneys proposed that a statute be enacted by 

Congress suspending the running of time until October 1, 1993, as to any claim on which time had not already run. The law was enacted, and the Attorney General rendered his opinion that it was valid and constitutional, but the Catawbas' attorneys decided 

that they must have a settlement offer in hand by August 22, 

1992, giving them reasonable grounds to believe that settlement 

could be consummated before October 1, 1993. 

After a week of intense negotiation, an agreement in 

principle was reached in the early morning hours of August 29, 

1992 . The afternoon of the same day, the full tribe met, and 

approved the agreement in principle as outlined to them. The 

parties agreed to use their •good offices and best efforts" to 

carry out the agreement, but recognized that it could only be 

effected through the enactment of state and federal implementing 

laws. Following the negotiating session of August 1992, 

discussions to refine the terms of settlement continued. 

Attorneys on both sides identified provisions requiring revision. 

State gaming laws were reviewed by the Supreme Court of South 

Carolina and amendments to state gaming laws came under active 

consideration in the General Assembly. 

A final negotiating session was convened in January 1993. At 

the end of five days, the negotiations culminated in a revised 

"Agreement in Principle," which the tribe approved at a meeting 

held on February 29, 1993 . The revised draft of the "Agreement 

in Principle" is the document submitted today for the record, and 

referred to in H. R. 2399 as the "Agreement in Principle . " The same document is referred to as the "Agreement in Principle" in 

South Carolina Statutes 27 - 16-100, et seq . (the "State 

Implementing Legislation"), and is on deposit as a permanent 

record in the Office of the Secretary of State of South Carolina . 

The negotiations were intense, spirited, and sometimes 

contentious, as I have said, but the they were conducted in the 

utmost good faith on all sides. Every element of the Agreement in 

Principle was negotiated in depth and detail. The Catawbas were 

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represented throughout the negot iations by Don B. Miller and 

other attorneys of the Native American Rights Fund (NARF ); Jay 

Bender of Baker, Barwick, Ravenel and Bender of Columbia, South 

Carolina, and by Robe rt M. Jones of Rock Hill and Richard Steele 

o f Union, South Carolina, as l ocal counsel. In addition, Ross 

Swimmer was of counse l to NARF and made ma jor contributions to 

the settlement negotiations. 

Aft er the "Agreement i n Prin ciple" was approved by the 

members o f the t ribe on February 29, 1993, we began work to 

convert the "Agr eement in Principle" into state and federal 

implementing legislation. More negotations and accommodations on 

bot h sides were necessary . As a result, the state impl ementing 

legislation and H. R. 239 9 differ in some respe cts from the 

"Agreement in Principle." The most notable changes treat games of 

chance . These provisions were modified i n favor the tribe because 

of possible changes in state gaming law. 

The parties entered int o a "!~ emorandum o f Cooperation" 

stipulating that the language in the state implementing 

legislation and in H. R. 2399 was consented to and accurately 

reflec t s their final agreement. A copy of the "Memorandum of 

Cooperation," signed on June 12, 1 993 , is also submitted for the 

record. 

According to the Memorandum of Cooperat ion, "In all cases 

where there are differences, the enacted legislation shall 

control and supersede the Agreement i n Principl e. The Agreement 

in Principle is otherwise a comprehensive statement o f the 

parties' terms of settlement." In signing the Memorandum, each 

party pledged "to work faithfully and diligently to secure 

passage of H. R. 2399 in the form it has been introduced." 

The fol l owing is a summary o f the "Agreement in Principl e" 

and the state and fede ral implementing legislation: 

Monetary Provisions of Settlement 

At this Committee's first hearing on the Catawba claim on 

June 12, 1979, Kenneth Woodington, Assistant Attorney General for 

the State of Sou th Carolina, told the Committee in his testimony 

(p. 26, Serial No. 96-17): 

"As far as a cash contribution, and any o ther 

sort of contribution by the State, we de fer 

to the representatives of the South Ca rolina 

General Assembly ... but we would ask that the 

committee take into consideration, as is 

being done in Maine, past contributions of 

the State to the tribe . For instan ce, in the 

1940s, the State contributed enough funds to 

pruchase 3,200 acres of land. At that time, 

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it was only $75,000, but it did purchase 

3,200 acres of land . .. " 

Congressman Udall, then Chairman of the Interior Committee, 

asked of Mr. Woodward (p. 26, Serial No. 96-17): 

"You do not reject outright, depending on the 

actions of the South Carolina Legislature , 

some contribution beyond the land . .. I 

certainly agree with what has been said 

earlier about the pattern in the East, which 

has been for some sort of modest 

c ontribution, at the least, from the State, 

and that is the way I would lean at this 

point .. . " 

Since the Treaty of 1840, the State of South Carolina has 

appropriated in the aggregate over $375,000 for the Catawba 

Indian tribe, according to Dr. Thomas Blumer of the Library of 

Congress, a s c holar of the tribe. Dr. Blumer conditions this 

summary by saying that he cannot verify how much was actually 

disbursed, but he has identified from legislation enacted these 

sums of money which were appropriated by the State of South 

Carolina over more than a hundred years . A copy of Dr . Blumer's 

letter is submitted for the record. In addition, a chart is 

submitted showing how much this sum would amount to if raised to 

a present value at various 

rates of return. 

In addition to past payments, and 630 acres of land that it 

holds in trust for the tribe, the State of South Carolina has 

agreed to contribute $12.5 million over five years, and loc al 

government and private sector sources are to contribute another 

$5.5 million. State, local, and private sector sources will pay, 

therefore , $18 million toward settlement, much more than the 

"modest contribution" Chairman Udall mentioned fourteen years 

ago. 

Here is an outline of the monetary payments called for by 

the "Agreement in Principle" and by state a nd f e de ral 

implementing legislation : 

1. Total Payments to Catawbas over 5 Years : Payment s t o 

the Catawbas from all s ources will total $50 million over five 

years . 

2. Sources of Payment : 

(A) The settlement plan assumes that $32 million will 

come from the federal government. 

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(B) The settlement plan assumes that $18 million will 

come from state, local, and private sector sources. 

(C) The state is to provide $2.5 million per year for 

five years. The Governor has stipulated that this be accompanied 

by local government contributions. 

(D) Private sector sources include: 

-$500,000, escrowed by Crescent Resources, Inc. 

for the release of land. 

-$500,000, held out by Duke Power Company as a 

challenge offer. 

-$500,000 from private sources matching Duke's 

challenge offer. 

-$1,400,000 from title insurance companies. 

(E) York and Lancaster County contributions: 

-York = $470,000 p/a for five years. 

-Lancaster= $50,000 p/a for five years. 

-Total = $2.6 million over five years. 

3. Final Resolution of All Catawba Claims: When the 

implementing legislation has been enacted, the land and 

landowners in the claim area will be freed of the Catawbas' 

claims. The existing suit will be dismissed with prejudice, and 

the Catawbas' claims will be ende~ and extinguished by an Act of 

Congress. 

4. Trust Funds: 

(A) Settlement payments will be placed in five trust 

funds held by the Secretary of the Interior for the benefit of 

the Catawba Indian Tribe. The Trust Funds are designated: 

Land Acquisition Trust Fund 

Economic Development Trust Fund 

Education Trust Fund 

Elderly Assistance Trust Fund 

Per Capita Distribution Fund 

(B) The settlement plan permits the Catawbas to place 

any of their trust funds under outside management by an investment 

firm, provided the firm is approved by the Secretary and has a 

record of competence in managing pension funds and endowments. The 

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Secretary would be exculpated from liability for losses by the 

trusts but would retain oversight responsibilities. 

(C) The following are the specific allocations of funds: 

15~ for the Per Capita Trust 

- 33% of State, County, Private Contributions for 

Education Trust 

- 10% maximum for attorneys' fees and expenses 

Tribal Sovereignty and Jurisdiction 

At the hearing held before this Committee on June 12, 1979, 

Assistant Attorney General Ken Woodington also laid out the 

jurisdiction and sovereignty the state wanted the Catawbas to have 

if the tribe were recognized and a reservation established. 

Assistant Attorney General Woodington used for comparison the Rhode 

Island Settlement Agreement, which Congress had recently enacted, 

which reserved virtually all civil and criminal jurisdiction in the 

state. He made it clear that the State of South Carolina did not 

want jurisdiction of the Catawba tribe governed by Public Law 280. 

To the concept of limited jurisdiction that he laid out, 

Chairman Udall responded as follows (p. 12, Serial No. 96 - 17) : 

"I would be inclined to agree with you on the 

jurisdictional question . I think it is one 

thing to have the Navajo Reservation in my 

State, which is as big as West Virginia, with 

a long history of self-government and special 

problems. It is one thing to see criminal and 

civil jurisdiction in the Navajos . It is quite 

another thing to say in an Eastern State where 

you do not have an established reservation, to 

then go out and buy and establish a new 

reservation, and then give a tribe without an existing tribal structure civil and criminal 

jurisdiction. I think you are on sound ground 

there ... n 

We negotiated the sovereignty and jurisdiction of the Catawba 

tribe accordingly, following the other Eastern Indian settlements 

as precedents, but in the end granting this tribe more civil and 

criminal jurisdiction than most of the Eastern Indian settlements 

to date . Here is a summary of the jurisdictional provisions of the 

implementing legislation: 

1 . Federal Restoration of the Catawba Indian Tribe: The trust 

30 
184 

relationship between the Catawba Tribe and the United States will 

be will be restored. The tribe and its members will qualify for 

federal Indian programs, such as health and education benefits , 

housing loans, and grants and loans for reservation development . 

2. Reservation: 

(A) The state will convey the existing 630-acre 

reservation to the Secretary of the Interior. 

(B) The Secretary, acting for the Catawbas , may acquire 

in specified acquisition zones up to 3,0 00 acres of developabl2 

land, including the existing reservation, plus up to 600 additional acres of non-developable flood plain and wetland or park and 

recreation land dedicated permanently to public use . All 

acquisitions must be from willing sellers, and not by condemnation. 

(C) After a comprehensive land study is complet ed, the 

Tribe may seek approval o f the county council and state legislature 

to acquire up to 600 additio nal acres. 

(D) The Secretary and Tribe must use "every reasonable 

effort" to enlarge the existing reservation "by assembling a 

composite tract of contiguous parcels that border and surround the existing reservation.'' 

(E) Before the Sec retary and Tribe can purchase noncontiguous lands to be placed in reservation status, they must 

submit an acquis ition and land-use plan to county planning 

authorities and to county council. County council will review the 

plan according to criteria in the settlement agreement and make 

recommendations to the Governor. The Governor will review the 

application and county council's recommendation and decide whether 

to allow acquisition. Governor's approval cannot be unreasonably 

withheld and will be reviewable under S.C. Admin istrative Procedure 

Act . 

(F) If the Tribe is unable to acquire all of the 

additional land in the vicinity of the existing reservation, a second expansion zone is designated north of the Catawba River 

lying between the Norfolk Southern trestle and Sugar Creek. Non - contiguous tracts are limited to t hree , with no more than two in 

any one expansion zone. 

3. Tribal Self-Government: 

(A) The Tribe will have authority to regulate the 

conduct of its members on the reservation and certain other on -

reservation activities. If it chooses, the tribe may establish a 

tribal court. All laws and regulations of the state will apply on 

the reservation, except as otherwise provided. In certain areas, 

the tribe may supplement these laws with tribal laws . The tribe 

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185 

will have jurisdiction over: internal tribal matters, including 

membership criteria; laws that regulate the use of tribal property; 

petty crimes and rules of conduct applicable to tribal members and 

others doing business on the reservation; the exclusion of non- members from the reservation, except for public roads and 

easements. 

(B) The criminal jurisdiction of the tribal court will 

be restricted to members and limited to the jurisdiction of state 

magistrate's courts. State law will generally apply to activities 

of non-members on the reservation. The Tribe may also allow its 

tribal court to exercise jurisdiction over contract disputes where 

the parties provide for tribal court jurisdiction or where the 

performance of the contract occurs substantially on the 

reservation. In addition, the tribal court may exercise 

jurisdiction over domestic matters where both spouses are members 

of the Tribe and reside on the reservation; over child custody 

matters arising under the Indian Child Welfare Act; over intentional torts committed on the reservation which cause bodi ly 

harm or damage to tangible property; and over negligence actions 

arising on the reservation, except that non-members can remove an 

action in negligence if the amount exceeds the juri sdicti onal 

limits of the magistrate's court. 

4 . Taxation : 

(A) Reservation land will be exempt from real property 

taxation, as are all Indian reservations. In addition, buildings, 

fixtures, and improvements owned by the Tribe on the reservation 

will be exempt . Homes of tribal members residing on the 

reservation will not be subject to real property taxes, but 

residents on the reservation will pay personal property taxes and 

income taxes; and for each reservation child attending public 

school, the Tribe will made a payment in lieu of schoo l district 

taxes. Certain of the state tax exemptions will expire after 99 

years. 

(B) Sales on the reservation will not be subject to 

state sales tax, but the Tribe will levy its own sales tax in the same amount and be subject to audit by the State Tax Commission . 

5. Gambling and Bingo: 

(A) The tribe and the state have agreed that the federal 

Indian Gaming Regulatory Act will not apply to the Catawba Tribe. 

(B) Instead, the Tribe will have the option of 

sponsoring bingo games under a special license issued by the State 

Tax Commission. The Tribe's license will allow more frequent 

sessions (up to six days a week) and higher stakes (up to $100,000) 

than allowed other bingo operators licensed by the state. Bingo 

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186 

operations will be supervised and audited by the State Tax 

Commission, and the Tax Commission will levy a 10% tax on gross 

receipts, payable to the State. 

(C) The Tribe may operate bingo games at two sites in 

the state . If the Tribe chooses to operate within the claim area 

but off the reservation, the area must be zoned compatibly, and the 

Tribe must consult with city or county authorities before the site 

is selected. If the tribe chooses to operate outside the claim 

area anywhere else in the state, the approval of the county 

government and municipal government, if any, are required. 

6. Tribal Membership: All persons named on the 1 962 tribal 

roll and all their lineal descendants are eligible for membership 

in the Tribe. 

7. Application of General Laws: All environmental and 

public health laws, federal and state, will apply on the 

reservation. The Tribe's water rights in the Catawba Ri ver will be 

no more nor less than the rights of any landowner on the banks of 

the river; and the Tribe will not be able to restrict passage on 

the river. The Tribe will adopt the York County Building Code, and 

may contract with York County for enforcement. The Tribe will have 

the authority to zone the reservation, but is obliged to consult 

with York and Lancaster County before implement ing its land -use 

plan or zoning law. The counties and the tribe are required to 

consult with each other regarding major developments that might 

impact the reservation and the surrounding area. 

Federal Contribution to Settlement 

From the outset, it has been assumed by everyone that the 

fede ral government had to contribute significantly if this claim 

was e ver to be settled. Attorney General Griffin Bell assumed as much when he reviewed the Eastern Indian land claims for the Carter 

Administration, and all the parties at the first hearing be fore 

this Committee assumed a significant federal contri bution. Inde ed, 

H.R. 3274, filed on March 27, 1979, and printed on page 2 of Serial 

No. 96 -17, called for payment of the full settlement out of the 

United States Treasury. 

Still, it is fair to ask, "Why should the federal government 

contribute $32 million to this settlement?" 

The short answer is that the Catawbas lost their land and have 

now lost most of their claim for recovery of the land because of 

the failure of the federal government to protect their rights and 

interests, not once but continually over a period of two hundred 

years . Consider this long list of occasions on which the federal 

government turned a deaf ear to the Catawbas, ignored their plight, 

and did nothing to protect their interests, even when it clearly 

33 
187 

occupied a trust relationship and knew the tribe had a serious 

claim: 

( 1) As early as 1782, Catawba Indians traveled to 

Philadelphia to petition the Congress for protection of their 

reservation lands from white settlers. 

(2) In 1791, the chiefs of the Catawba Tribe met President 

George Washington as he traveled from Camden to Charlotte and asked 

for protection of their lands from encroachment by white settlers. 

(3) In 1825, President James Monroe and Secretary of War John 

Calhoun reported to the Senate that the Catawbas were among those 

tribes which still held lands within the United States. A War 

Department chart indicated that the Catawbas possessed 144, 000 acres. 

(4) In 1848, the Catawbas wrote President James K. Polk, 

protesting the Treaty of 1840. Polk was born and lived until he was 

12 years of age less than five miles from Catawba country, and had 

relatives who remained there . 

(5) In the Act of July 29, 1848, and again in the Act of July 

31, 1854, Congress revealed its awareness of the Treaty of 1840 by 

appropriating money for removal of the Catawbas west of the 

Mississippi, but did nothing to redress their grievances or protect 

their interests. 

(6) In 1887, Catawba Chief Thomas Morrison visited the 

Interior Department and petitioned the United States for assistance 

in resolving the Catawbas' claim to 144,000 acres. In the same year, James Kegg, a Catawba, son of the chief who signed the Treaty 

of 1840, wrote L. L . C. Lamar, Secretary of the Interior, 

requesting federal assistance in reaching a settlement concerning 

Catawba lands in South Carolina. 

(7) In 1895, a group of Catawbas submitted their "Petition 

and Memorial in the Matter of Claims and Demands of the Catawba 

Indian Association, to the United States." 

(8) In 1905, the Catawba Tribe submitted to the Bureau of 

Indian Affairs a formal request for assistance based on the 

requirements of the Nonintercourse Act, accompanied by legal briefs 

and a lengthy history of the claim. The Commissioner of Indian 

Affairs denied the request on the ground that the Catawbas and 

their lands were not protected by federal law, a ground now found 

to be erroneous. 

(9) In 1908, the Catawba Tribe petitioned the Commissioner of 

Indian Affairs again, and was denied again. 

(10) In 1910, the United States Indian Service initiated an 

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188 

investigation of the Catawbas' claim against the State o f South 

Carolina. Special Indian Agent Davis submitted a report advising 

the tribe t o submit its claim t o the state legislature. The tribe 

submitted the claim to the state legislature, which declined to 

take responsibility for the claim or the tribe. 

(11) Between 1926 and 1943 , repeated inquiries were made by 

the tribe, its attorneys, and Congressman James P. Richards. A 

hearing was held by the Senate Committee on Indian Affairs in Rock 

Hill, South Carolina, at which the Treaty of 1840 was discussed at 

l e ngth . In 1 940, BIA official . Ward Shepard reported t hat the 

Catawba Tribe had a claim against the State of South Carolina 

arising o ut of the Treaty of 1840 . In 1941-1943, the Department of 

Interior re fused to allow the tribe to release its claim against in 

return for money contributed by the state f or purchase of 3 ,4 34 

acres of land f o r the t ribe . The land was purchased by the state 

and conveyed to the United States as trustee under a Memorandum of 

Understanding with the Catawbas. 

(12) From 1943-1962, the Bureau o f Indian Affairs assumed 

responsibility for the tribe under a Memorandum of Understanding . In 1958 , the BIA began efforts to terminate federal supervision and 

services to the tribe. The tribe consented to termination and 

division of tribal assets, but pressed BIA officia:!.s about the 

status of the land claim . When the tribe adopted a resolution approving termination in January 1959, it included a proviso 

reserving its claim. 

( 13) On February 5, 1959, Douglas Summer Brown, author of 

Catawba Indians : People of t he River, wrote the agent at BIA 

supervising the Catawba termination , documenting the existence of 

the claim and concluding that "any agreement or settlement made now cannot be final, but the question will be brought up agai n and 

again in the future ." 

(14) Despite its knowl edge of the Catawbas' land claim, and 

despite its responsibility to liquidate and distribute the assets 

of the tribe, the BIA did nothing to help the tribe a ssert , enf orce , or liquidate its claim. 

(1 5) In addition, the BIA failed to protect the Catawbas' 

claim in the termination act and used boilerplate language in the 

act which had the effect o f applying South Carolina laws of 

limitation to apply to the Catawbas' claim, without warni ng the 

tribe of the timeframe within which they must sue or l ose the i r clai m. 

(16) In 1977, the Solicitor of the Department of the Interior 

concluded, in response to a formal litigation request , that the 

Treaty of 1840 was probably invalid under the Nonintercourse Act; 

that the United States had a duty t o protect the Catawbas' 

interests under the Nonintercourse Act; that the United States had 

35 
189 

denied assistance in the past under e r roneous l ega l theories; and 

that the United States shoudl bring suit on behalf cf the tribe . 

The Solicitor's litigation report concluded : "Thus, the case is a 

particularly inviting one fo r a negligenc e c laim aga inst the United 

St ates, should this Department fail to advocat e relief of the 

Catawba." Despite the request, the Department of J ustice declined to bring suit, because Attorney General Griffin Bell did not want 

to sue innocent lu.ndowners. He recommende d instead governmental 

settlement of the claim. 

Represented by NARF, the Cat awbas fil e d suit on their own in 

October 1980. In 198 6, the United States Supreme Court held that 

the Termination Act resulted i n the application o f state statutes 

of limitation to the Catawba l and cla i m. In 1989, t he Fourt:h 

Circuit Court of Appeals ruled that South Carolina laws barred the 

tribe's cl aim to any lands adversely possess ed fo r ten years 

between July 1, 1962 (the effective date of termina t ion) and 

October 28, 1 980 (the date suit on the claim was filed ) . 

on remand of the suit to the District Court , the court released 

more than 75'.> of the land on motions for summary judgment:. 

Had the federal government on any of the foregoiag oc casions 

upheld its trust responsibilities, the Catawbas would not have been 

denied r e dress for 15 0 years or lost the better part of their claim 

to adverse possession . Their land claim would have been settled 

long ago by the persons responsible for it a nd not by innocent 

landowne r s. 

When t he Catawba Indian Tribe discovered t he effect of the 

Termination Act on their land claim, they brought suit against the 

United States of America in the Court of Federal Cl aims fo r breach 

of an "implied-in-fact contract to protect the Tribe's claim to 

possession o f 144,000 acres of land that were reserved to the Tribe 

in treati e s with the Crown.• The Court held that federal statutes 

of l imitation had run on any claim the Catawbas could assert 

against the federal government. Catawba Indian Tribe of South 

Carolina v . U.S., 24 Cl .Ct . 24 (1991). While the statute may have 

run on the United States' legal liability to the Catawbas, no 

statute runs on the government's moral responsibility; and the 

government should be wary of hiding behind a statute of limitations 

when i t has not upheld responsibilities it: holds as t:rustee. 

We ask fo r the United States to contribute to this settlement 

because it has a strong moral responsibility. We have pressed 

state and local governments for as much they can provide. Other 

witnesses can tell you more in specific about the state's fiscal 

situation. I can tell you the state's budget is exc eedingly tight, 

and we feel fortunate, indeed, to have a commitment of $12 ,500,0 00 

from the State of South Carolina. 

What will happen if the federal government does not assume 

this share of the settlement? Negotiations will resume, and so 

36 
190 

wil l the l aw su i t . The S~ at e of Sout h Carolina, for its part, wi l l 

probably have litt le choice bu= C (J seek dismissal from t he s u it 

unde r the r ecent ruling o f .Q_J..f!tc_;.l.iPrd v . Native Vil la_gs: of Noatak , 

111 S.Ct . 2578 (19 91 ), which he ld tha t an I ndi an tribe c annot s ue 

a state in f ederal cot:rt. . The Ca tawbas, fo r their part , :..vil l 

probabl y have no choice but co sue some 62, 000 landowners, p r obably 

fil i ng a .lis p e ndens with eadc suit . In a h ighly popul at. ed and 

d eve loped area coveri ng 22 5 square miles in South Ca rolina, real 

estate sales a nd l e nding wi ll ~ome to a halt . Pend ing the outcome 

of these suits, real estate will p l ur:Er.et i n value . Landowne r s wil l 

have t o be ar legal fees and exp enses runni ng into millions of 

d o llars. I n t h e e nd, aft er al l t he t 1J-;:-,,-ioil, t h e v ast maj ority of 

the l a ndown ers wil l pre vail, aud the Ca tawbas wi ll p r obably be le ft 

vJi th a l ot. l ess t h an \Vhat t hey h a v8 ,., ();) by way of th is settlerr!.ent. 

In sho r t , i f t he federa l g overnment c annot contribute t he 

share we are see k ing, t he settlernent will col l aps e, and everyo n e 

'"'i. l l J.os e , including the f ederal g o vernment . I inc l ude t he federal 

g o··.re_rnment be cause if this settlement colldpse s, the f ede ral 

gove rr:mer.t v.,:i lJ. not. bring a nother East ern Indian lar.d cl aim a 

s uccessful conc lusion , which i s an i mportan t objective. I t wi l l not 

see anot t1 e r termi nated t ribe restored to f ederal status, which i s 

also a fede ral policy. And the injusti ce done t he Catawbas by y ears 

of federa l neglect wi ll no t be rectified; it will be compounde d. 

An injusrice wil l also be visited u pon 62 ,000 i nnocent landowners. 

They will b e the victims of a fede ra l law, the I nd ian 

No n i. nte r·co urs e Act , whi c h no on e h as ever understood c lea rly. They 

will be sued f or r ecovery of titJ. e and p osse ssion to their h ome s, 

farms, and businesses, and caused undue anguish , when everyone 

knows that if this we re t he outcome , Congress wo uld not stand for 

them to be dispossesse d. 

When Griffin Be ll completed his r eview o f all of the Eastern 

Indian land cla i ms in t he 1970s, he c ame to s e v eral conc lusions, 

set out in a letter to Secretary o f the Int erior Cecil D. Andrus, 

dated June 3 0, 19 78 . One was that landowners t oday are who lly 

i nnocent and should not be held under threat of the loss o f t heir 

land or c harged with the cost of settlement . He r efused to b ring 

suit on this claim bec ause "the f act that the landowners are 

complet e ly innoc ent o f any wro ngdo i ng we ighs heavily aga inst suing 

t hem." Griffin Be ll conc l uded t hat of necessity, it i s the 

g ove rnment's responsibility to settle these claims. He suggested 

that "it is comp l etely within the power of Congress t o remedy the 

tribal claims b y the process of ratifying the anci ent tribal 

agreements with t he states. Such r a tifica tion could be accomp anied 

by payme nt to the tribes in appropriate amounts . I n the 

alternat ive, the tribes could be given a c ause of action against 

the United Stat e s in the Court of Claims." We come t o day t o ask 

t he f ederal government to stand up to its responsibility and help 

settle this claim, as the Attorney General recommended fifteen 

y e ars ago. 

37 
191 

OFFIC~OF THE ATTORNEY GENERAL 

WASHINGTON, D.C. 

Honorable Cecil D. Andr~s 

Secretary of the Interior Dep~rtment of the Interior Wa~hington, DC 20240 

June 30, 1978 

I 

.I 

Re: Ancient Eastern Indian Claims 

Dear 'Mr. Secretary: 

Frorn time to time your S~licitor, Mr. Leo Kr~litt 1 has 

forwarded litigation reports on various ancient Eastern Indian 

claims to 'm)' Assistant Attorney General for Land and Natural 

Resources, Mr. James Moorman. I refer specific~lly to three . claims in New york (Cayuga, Oneida and St. Re,is·Mohawk), one in South Carolina (Catawba), and one in Louis1ana (Chittimacha). 

These reports have not been accompanied by requests to sue immediately, but rather with requeJts that they be held for l~ter suit pending preliminary settlement negoti~tion~. I 

believe it is Incumbent upon me to inform you ~r my views ~n 

whether suit should ever be filed so that you can better carry 

out your duties with regard thireto. . . . 

At our luncheon mcetine on November 29, 1977, y6~ and ! 

generally approved of a ~ettlement approach whereby the Administration 1~ould ma'ke an· omnibus proposal to Congress to- settle 

these claim~. My only reservation then and · now wa~ that I would 

hot support a ~ettlement bill which forced an~ ori e ('Other than a State) to give up land. 

It appear~ to me that the settlement proce~s is going . 'lower than we anticipated and th"t >t may not he ~ble to iet all 

the intcrc~ted partie~ to ~grc~. At our meeting on November 19th 

you will recall that Leo Krulitz sug~c~ted hr would have ~ bill ·in April or May of this ye~r. I am under the impression that 

should settlement discussions fail you may expect that the 

Department of ,JIIH1ce would actually sue lando-wners in the claim 

areas: In addition, the Administration's proposed Maine Claim 

bill will raise o question in . the public's mind as to whether or not we intend to treat the small landowners the same iri. New York, 

South Carolina 3nd J.ou.isiana.. As you know, the A<lmirW.stratipn 

propo.ses to submit a bill . to Con~re~ll on the ~lllinf' claims which. · would extingui~h Indian title to all land holding~ ri~ to 50,000 acres per owner and provide $25,000,000 in payment to t~e tribes . 
192 

After careful thou~ht, I have decided that i will no~ brina 

:>uit ' against the landowners in the Nc>w York, South CaroHoa, or Louisiana cl.1im lll"ca~>. I hav<! a number of question~ abou't· the 

legal and factual is~ues 1n thcst- !':llits and que~'tion whether they can be won. furthcrmbre, the fact thnt the landowners are . comp)etely innocent of any wrongdoing wei~hs heavily against 

suing . them. Finally, the Administration's policy decision to . relieve small lnndowners ln Maino from suit throu~h a lcgi~lativc 

settlement recommends the same reliff to oth~r~ Similarly situated. 

This is not to say that the tribes involved do not have ~o c equitable complaint, using that term in the broade~t ~ense. 

Other tribes have been compensated over the years for the ancient 

takings which occurred as a result of the western rno~eme~t and 

settlement of the nation. However, it is completely ·withln the 

power of Congress to remedy the tribal claims by the ·process of ~ 

ratifying the ancient tribal agreements with the states. Such 

ratification could be accompanied by payments to the tribes in ap~ropriate amounts. In the alternative, the ttibes could be 

given a cause of action against the United States in the Court 

of Claims. 

My decision applies only to private lando~ners. Jam un· decided ~~ yet with regard to ~uits Against the ~t!te5 of New 

York, South Carolina or Louisiana. Ther~ are several considera· 

tions. For example, on the one hand it i~ tru~ 'thAt those states 

bear some ~e~ponsibility for the title pfoblems. On th~ other h~nd, suits against ·the state! are in effect ~uits a~3inst public lands whi~h involve such things as highways and parks. 

As a mnttcr of principle, I believe the landowners should 

know or rn~ deci~1on not to sue them ~~ soon as po,,ible. The 

decislon should he announced at a time upon which rou ond _.I n~rce. 

Y inclination Js to announce it at the same tim~ thar th~ . Administr3tlon s~nds up the Maine hi}l. I ~auld ~l,o _ r,com~end 

that the Administration commit to introduc~ ~ hill to ~qlvc the 

private landowners' title probl~ms in the claim ~reas in'Ne~ York, 

South Carolina and Louisiana. · 

bee: James Moorman 

Sincl:'rel)" your.s, 

/s/ Grif..fi-ii B. Bell 

Grlffiri R. R~ll . 

· Attorncr General 
193 

Native American Rights Fund 

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s..-c.- o-.w•.wtv.-

The Honorable John Spratt 

United States House of Representatives 

1533 Longworth HOB 

Washington, DC 205 IS 

Re: Catawba Settlemeot BW 

Dear Congressman Spratt: 

June II, 1993 

~·te~ 

)lelM..-, 5Milt7H 

,_.._.,., .U t'tSOI ,,.11, ...... 

Tbe purpose of this letter is to express the support of the Catawba Tribe for 

tbe bW introduced by Tbe Honorable Butler Derrick that provides for the sculemcnt of tbe 

Tribe's land claim and restoration of tbe Federal trust relationsbip. We have participated 

fuUy in tbe diaftinc of tbe bill and bereby ceJtify that tbe bill as introcluU.d acc:uraldy 

reflects tbe terms of our ~~ in Principle and will effectively implement tbe parties' 

settlement agreement. 

Tbis complex legislation is tbe product of au arduous negotiation process 

spanning tluee yean. Eacb provision is tbe product of detailed and intense give and take 

amona tbe parties. Tbe sett1eme111 agreement embodied in tbe SWe and Federal 

implemeating legislation is painslakingly cnfted and represeats a delicate balaDce of tbe 

diverse and SOIIIedmes competing interests of tbe numerous p;uties involved in and impacted 

by tbe settlemelll. It is our fum belief that any amendment which would signif1C3Dily alter 

tbe terms of our apeement would result in a collapse of tbe settlement and condemn tbe 

parties to many additional yean of disruptive and expensive litiplion. 

Tberefore, it is critical for all parties to tbe ~ to resist modificalioo of 

tbe terms of the settlement aareement DOW that the bill bas eDtered the Federal legislalive 

process. Tbe Tribe will work diligeatly to sa:we eoadmeol of the S£lllemeat bill as 

introduced and respectfully reques1J thai you and npresenwiV..S of tbe Stale of Soutb 

Carolilla make a similar commitment. 

Because many of the provisions of tbe scuJement apeement, particularly in tbe 

uca of jurisdictioo, do oot follow tbe a-a! Nles of Federallodian law, tbe bill as 

inlroduced will uodoubledly raiae ~ amone lDdia!l leaden arouod tbe COUDtry wbetber 

tbe Catawba laud claim ~ 11ct repraents a sbiftinc of Fedenllodian policy away 
The Honorable John Spratt 

June II, 1993 

Page 2 

194 

from tribal self-government and toward greater state involvement in the governmental affairs 

of Indian tribes. It will therefore be important for all parties to the Catawba settlement to 

emphasize that this is not the case. 

The Catawba Tribe and the State have negotiated a broad jurisdictional 

compact that in many ways is unique, covering in detail civil and criminal cause of action 

jurisdiction as well as a wide range of civil regulatory matters. Tbe manner in which the 

parties' agreement divides and allocates the respective jurisdictional powers of the Tribe and 

Stat~ and Federal governments reflects the particular circumstances of the Catawba Tribe and 

its non-Indian neighbors. These allocations are a function of many complex factors, including 

the risk of continued litigation, the expensive and disruptive nature of the protracted legal 

proceedings, the Tribe's unique history, its proximity to major urban areas, and, most 

importantly, the wishes of Catawba Tribe as expressed by an overwhelming vote of support 

for the settlement agreement. 

Therefore, beyond furtherance of the general Federal policies of encouraging 

consensual settlements, fostering Indian self -determination, and restoring terminated Indian 

tribes, the Catawba Land Claim Settlement Act should not be viewed as a precedent that 

either sets forth or impacts Federal Indian policy . Rather, it is legislation that seeks to 

implement the agreement of particularly situated parties engaged in unique and troublesome 

litigation. 

The Catawba Tribe endorses the provisions of the bill as introduced. We 

pledge our good faith efforts to secure its enactment in its current form, as it will implement 

the agreement as negotiated by the parties. In return, we respectfully request that you and 

representatives of the State pledge to support the bill as introduced and make clear to 

Congress and the national Indian community that this bill in no way represents a modification 

or departure from current Federal Indian policy. 

cc: The Honorable Carroll Campbell 

Executive Committee 

Co-Counsel 

Don B. Miller 
195 

DBP&BTMINT of the INTBBIOI 

news release 

OFFICE OF THE SECRETARY 

For Release: September 29, 1992 

Bob Walker (O) 202/208-3171 

(H) 703/938-6842 

INTERIOR SECRETARY LVJAN RECEIVES BRIEFING ON TEBMS 

OF CATAWBA SEtTLEMENT WITH STATE OF SOUTH CAROLINA 

Secretary of the Interior Hanuel Lujan met today with South 

Carolina Governor Carroll Campbell, Senator Strom Thurmond and 

representatives from the offices of Senator Ernest Hollings and 

Congressman John Spratt to discuss the terms of the Catawba 

Indian land settlement. 

"This appears to be an excellent settlement proposal, and I 

will do whatever I can to gain the support of the Adainistration 

for it,• Lujan said. "All parties to this historic agreement are 

to be congratulated for their hard work.• 

Lujan noted that the settlement would provide for the 

restoration of the Catawbas as a federally recognized tribe. 

"This Administration has supported restoration of terainated 

tribes, and I am pleased the Catawbae will be a•ong thoee 

restored," Lujan said. 

"The settlement will provide new economic and education 

opportunities for the tribe, and it will end 12 years of 

litigation that has clouded the commercial and real estate 

mark~ts in the area. The eonetary pledges demonstrate a vital 

coe•itment by the state and local governments as vall as private 

sources." 
196 

Under the proposed settlement: 

-- The catawba Indian Tribe, terminated by the Federal 

Government in 1962, will be restored as a federally recognized 

tribe, and will thus qualify for federal Indian programs; 

-- The tribe will receive a total of $50 million over five 

years with 60 ~ percent from the Federal Government, 25 

percent from the state and local governments, and the balance 

from private sources. The funds will be held in trust by the 

Secretary of the Interior; 

The tribe may have a reservation of up to 3,600 acres, 

which could be expanded up to 4,200 acres with the approval of 

state and local governments; 

-- The tribe will have limited authority to regulate matters 

on the reservation through a tribal council and tribal courts. 

In exchange, the tribe will relinquish claims against 

federal, state and local governments as well as against private 

landowners. 

These claims were filed in 1980 when the tribe brought suit 

in federal court. The tribe alleged that an 1840 treaty signed 

by the state and Catawbas transferring 144,000 acres of tribal 

lands was void because it was never ratified by the Congress as 

required by federal law. 

Legislation will be required to implement the settlement. 

-DOI-
197 

SYNOPSIS OF CATAWBA BILL 

Section 1. - Title of Bill. 

Section 2. - Policy and findings. Recounts history of land claim, 

recites policy of settling land claims, and describes intent to 

settle this claim. 

Section 3. - Definitions. 

Section 4. - Restoration of Trust Relationship. Restores the 

trust relationship between the United States and Catawbas, repeals 

the 1959 Termination Act, and makes Catawbas eligible for health 

cards. Preserves all contract and property rights of individuals 

accruing prior to this act, preserves State's jurisdiction unless 

explicitly disp~ced, and makes area school districts eligible for 

impact aid. 

Section 5. - Settlement Funds. Requires the United States to con- tribute (in five equal installments) $32,000,000. Private and 

state funds are to total $18,000,000, and to be deposited in trust 

funds after payment of up to 10\ to attorneys. 

Section 6. - Ratification of Prior Transfers. Ratifies prior 

transfers, extinguishes aboriginal title and claims, bars future 

claims by the United States, and authorizes payment of up to 10\ as attorneys' fees. 

Section 7. - Tribal Membership. Establishes membership criteria 

for new members. Requires descendancy from member of 1961 roll 

(or person who should have been member). Authorizes Tribe to determine future membership. 

Section 8. - Transitional and Provisional Government. Requires 

Tribe to prepare new constitution, permits Executive Committee to 

act in interim. 

Section 9. - Tribal Constitution and Governance. Makes IRA apply 

to Tribe. Details method of adoption of new constitution, and 

election of tribal officers. 

Section 10. - Jurisdiction and Governance of the Reservation. 

Permits the Tribe to regulate the conduct of its members, use and 

disposition of its property, to regulate conduct of non-member 

businesses or persons living or conducting business on the Reservation, and to exclude non-members from the Reservation. 

Section 11. - Criminal Jurisdiction. South Carolina retains all 

criminal jurisdiction except that Tribe may have Court with jurisdiction limited to members, Reservation, and crimes within the 
198 

jurisdiction of South Carol na ' s Magistrates' Courts. Tribal 

court jurisdiction is concu rent wi t h Magistra tes' Courts a nd defe nda nts can remove their c se to Mag istrates' Court or appeal to 

General Sessions Courts. Requires cross-deput izat ion of peace 

officers. 

Section 12 . - Ci vil Jurisdiction. Tribal civi l court may have 

original and appe l late jurisdiction ove r : 

1. a c tions on contracts to which Tribe a party, member a party and made on Reservation, or contract where more than 50% of 

services to be rendered on Reservation which do not expressly ex- clude Tr i bal court juri sdiction; 

2. actions in tort for intentional torts under Sou th Carolina law is cause bodily injury or damage to prope rty , or neg l i - gence or strict l i ab ility except f o r au tombile acci dents on reservati on; 

3. internal tribal matters; 

4. domestic re l ations involving members residing on Reservation; and, 

5. enforcement of business regulations applicable to busi- nesses on Reservation. 

Most jurisdiction is concurrent with sta t e courts. Appeals 

lie to court in which could have been brought originally if matter 

exceeds amount of Magistrates Courts' jurisdicti on. 

Full faith and credit only to judgments s ubject to appeal. 

Tribe has sovereign i mmunity similar to state for torts subject to 

requirement that they procure simila r insurance. 

Indian Child Welfare Act applies when Secretary approves. 

Section 13. - Tribal Trust Funds. Establishes trust funds with an option to have them managed by outside manager. Funds are Land 

Acquisition Trust, Economic Development Trust Fund, Education 

Trust Fund, Social Service and Elderly Assistance Trust Fund, and 

Per Capita Trust Fund. Per Capita Trust Fund will distribute 

$7,500,000 in one time payments to members. 

Payments from trust funds (other than original· per capita 

payments) not counted for eligibility for federal benefits. 

Section 14. - Establishment of Expanded Reservation. Permits ac- quisition of up to 3600 acres (not counting 600 undevelopable 

acres) in defined area of York and Lancaster Counties. Purchases 

must be from willing sellers, but sellers can treat as involuntary 

conversions. 
199 

Section 15. - Non-Reservation Properties. Catawbas free to ac- quire non-reservation properties, but obligated to make payments 

in lieu of taxes if acquisition removes property from tax rolls. 

Section 16. - Games of Chance. IGRA not apply. Tribe has ability 

to establish two high stakes bingo games under terms of state 

bill. One must be within claim area, other requires approval of 

county and any municipality in which located. Taxed at 10\ of 

gross revenues. 

Section 17. -Governance of Reservation. All environmental laws 

apply to reservation, and Tribe has no special status. Building 

code is same as York County, but can be more stringent. Planning 

and zoning require consultative procedures described in Puyallup 

bill. Tribe and members subject to state hunting and fishing 

regulations. Alcohol prohibited unless Tribe permits. 

Section 18. - Taxation. Indian Tribal Government Tax Status Act 

applies. Generally subject to tax unless exempted by Act. Only 

taxes on games of chance is 10\ state tax. Tribe's income non- taxable to extent non-taxable for recognized tribes. Members liable for taxes to same extent as other citizens of the state, with 

exceptions for members working on Reservation, or engaged in sale 

of pottery. Real property on reservation exempt from taxes to 

extent owned by Tribe. Residences exempt to extent occupied by 

members. Tribe required to make payment to school districts for 

students attending. Liable for personal property taxes. 

Eligible for special status as Enterprise or Foreign Trade zone. 

Section 19. - General Provisions. State law generally applicable. 

Subsequent laws preempting state jurisdiction not applicable, be- comes effective upon transfer of existing reservation. Bill invalid if extinguishment or restoration invalidated. 
200 

LH"I TED S7 AT<:S 

CEPARTMENT OF THE INTERIOR 

OFF iCE Or THE SO LIC ITOR 

eono:~jle James w. Moo r man 

Acti ng Assist ant Attorney Ge~eral 

Land and Natural Resou r c es Div isi on 

Department of J ust ice 

h'ashington , D.C. 20530 

Dear Mr. Mo o r man: 

This letter const~t~t~s a re=uest for vcur De~a mE~t to institcte 

l egal actio~ 0~ t~half of h~ Cat .. wn3 indian ir ~e t o recover its 

rese~va:io~ in So~th Caroli~a. The issue in th s litiga ti on is 

wh ethe r South Carolina's atte~ot to acouire tit e to the Catawba 

re se r vati on by virtue of an 8~0 Tre at~ was val d under th e Non-Intercourse Act , 25 U.S.C. S 177 . "we conclude that t he Tribe 

can esta Dl ish a ~r ima facie case under t he Ncn-Inte:course Act, 

t hat the l SCO Tr e at y was void, and that the Tr ibe is therefore ~tit led to reco ve ry of i t s reservation. 

The Catawja claim is for pproxi~ately 140 . 000 acres (or 1 5 

miles squa re ) to which they have had a vested property ri9 ht 

since 176 3. ?rior t o that date, th e Tribe occ upied and co ntroll ed 

a much larger a rea by a bo riginal t itle. Howeve r , in 1763, 

the Tribe relinquished their claim t o t he larger area in retur n for Great Br itain 's assurance that thev wou ld have unmol ested 

possession of the 15 mile quare ese ~atio . When the Uni ted 

States succeeded to Great Britai n ' s sovereignty in 1783, our new government did not abrogate the 1763 Catawba Treaty. Therefore, 

according to settled rules of international law, which are acknow ledged by the u.s. Supreme Court, the Catawba retained 

a vested right in their reservation, as sacred as the fee 

simple of a non-Indian, which th E Ur.it~d States Government was bound to respect. See Mitchel v . Un ited Sta te s , 9 Pet. 

(34 U. S.) 711, 733 (1835). 
201 

-2-

Th~ successive Non-Intercourse Acts, enacted to protect Indian 

property by requiring federal consent to the attempted conveyance 

of any India~ lands, were as applica~le to the Catawba reservation as to any other kind of tribally held land. Joint Tribal 

Council of the Passamaouoddy Tribe v. Morten, 528 F.2d 370 

(C.A. 1 1975). By 1840, the Catawba's treaty reservation was overrun by non-Indians who continually ignored the Tribe's 

protests; non-Indians also occupied the reservation lands under a state instituted leasing system whereby the lessees owed rent 

to the Catawba but often did not pay it. In 1840, the Tribe 

finally purported to convey their remaining title and interest 

in the 140,000 acres to the State of South Carolina by tr~aty. 

The federal governme nt was in no ;;ay in·1olved in the ne gotiatio~ s 

and never subsequently gave its consent. The 1840 conveyance was therefore void under the Non-Intercourse Act. Shortly 

after the 1840 Treaty, the Tribe sought return of the reservation 

stating the Treaty was procured by duress, that the terms were unfair and that the State wasn't meeting its obligations under 

the Treaty. Under the Non-Intercourse Act, the United States, as protector of Indian held lands, had the duty to protect the 

Catawba reservation, to set aside the 1840 Treaty if it didn't 

consent to it, and to assist the Catawba in recovering their 

lands. Passamacuoddy, supra. 

The United States has never taken any action to fulfill its duty 

to help the Catawba recover the land. In fact, the Department 

of the Interior has twice refused, in 1906 and 1908, to take 

action when the Tribe's lawyers pointed out the Tribe's claims 

under the Non-Intercourse Act. But mere lapse of time and failure 

of the federal government to act cannot eradicate either the 

Catawba's rights to their land or the federal government's 

continuing duty to help them get it back. The Act of September 

21, 1959, which terminated federal services to the Catawba and the 

applicability of federal Indian statutes similarly did not 

extinguish the 1840 Treaty claim or the government's duty of 

protection. The termination language in that 1959 statute 

is prosoective and does not affect pre-existing legal rights. 

Moreover, the Supreme Court in Menominee Tribe v. U.S., 391 u.s. 404 (1968), and in many other Indian land cases, required 

clear evidence of Congressional intent before finding an abrogation of Indian rights. The legislative history of the 

1955 Act shows that Congress, as well as the administering 
202 

-3-

agency, believed the Act ~as passed for one re3sor.--to liquidate a 3400 acre reservatio~ and to t~rrninate limited fed~ral ~enefits 

both of ~hich ~ere created by a 1943 agreement bet~een the Tribe, 

the State of South Carolina, ar.d the Department of the Interior. 

In short, the 1959 Act ~as a me~ns of dissolving the legal 

relationship set up by th~t 1943 agreement. In fact, Congress ~as una~are of the status of the 1763 treaty reservation, of 

the Non-Intercourse claim pertaining to it, and finally of its o~n duty under the Non-Intercourse Act to protect the reservation. 

The Tri~e itself certainly did not contemplate the 1959 Act as a means of cutting off their legal claims to the 1753 reservation 

because they stipulated, in the petition which gave :ise to t he 1959 legislation, that those claims should not be affected. 

The action we hereby recommend is that the United States 

finally act upon its long neglected duty under the NonIntercourse Act to nullify the 1840 Treaty with South Carolina 

and restore possession of the 1763 Treaty reservation to 

the Catawba Tribe. 

An alternative source of the United States' duty to bring this 

suit to quiet title to the 1763 reservation arises from the 

1959 Act itself. Since 25 U.S.C. S 935 did not abrogate the 

Catawba's Non-Intercourse Act claim, the 1763 reservation miaht 

be a tribal asset subject to the distribution provisions of - 25 u.s.c. S 933, as was the known 3~ 0 acre reservation. It 

would therefore be incum~ent up6n the Secretary, under S 933, 

to bring legal action to settle ownership of the 15 mile 

square reservation so that he could later determine whether 

that reservation should be conveyed to tribal members under 

S 933(d} or sold pursuant to S 933(f}. 

We recommend that the appropriate cause of action be a suit 

for ejectment of the current possessors of the tract and mesne profits for the period of time the Tribe has been dispossessed. 

This is the third time the Catawba Tribe has petitioned the 

Department to seek relief on their behalf and they have been 

twice refused for legally incorrect reasons. The atta=hed 

materials include legal research by our staff attorneys and 

historical materials that should aid in your p reparation of 

the case. 
208 

-4-

We recom~end th~t yo u me~t ~it~ us ~s soon as possible, and 

with the Trib~'s represent3tives, to di~c~ss the handling of 

the claim. The Tribe has already held several meetings with 

the South Carolina Governor and Attorney General to discuss 

settlement of the claim. We unc~rstand that discussions 

have reflected a mut•al intent to resolve the matter in a way 

that would satisfy the parties without endangering the State's 

economy o: interfering with the orderly development of 

residential and industrial real estate. Since we agree with 

that approach, we should inform a:l concerned parties th~t 

we cone~! in the v~lidity of the C;tawba claim, that w~ 

woulc p:efer an amicaole, orderly settlement to leng~hy, 

disr~ptive litigation, and that we will lend immediate assistance 

in negotiations for a just and ~odel settlement. 

Sincerely, 

Solicitor 

Attachments 
204 

CATAWBA SETTLEMENT 

MONETARY CONTRIBUTIONS 

Cash Settlement: $50.0m 

Federal Contribution $32.0rn 

5 years ((~ $13.4m/year 

Stak Contribution $12.5rn 

5 years@ $'2 . .Sm/year 

Title Insurance Contribution $ 1.4111 

Crescent Escrow $ 0.5rn 

l)uke ChJllenge Offer $ 0.5m 

Matching Private Contributions $ O.Sm 

York County Contribution 

5 years @ $4.10,000/year $ 2.35m 

Lancaster County Contribution 

5 years @ $50,000/year $ 0.25m 

TOTAL $50.00m 
205 

CAT/\WD/\ P/\YMENTS ----------- 1- ---l 

. -·--- ---· .. ..... --· ..... . - . --·-··--·-· .. .. --·- -··· ···--·-t-----,-- ·· ·- 2:0~ . _ !:'~l'n1,9. n1_ __ _ _ _Da le . ___ _ .. . P:i__ __ rio~ 

-------. ·-- __ _ ,_ ... ...... ···+. . ...... -- --···· -· . ----·- --1---:-::-::cl , __ !?.i1 ____ __ $JA40._QO ____ __ __ 4,QJo __ _ $7)_4,_307.81 -152 

____ _lQ:,l? __ OO( Q ____ <1 ,0% ____ $3 _g? 58 -151 

1!3~ 3 $2,000.00 <1.0% $717,845.35 -150 

11M~ --~~= $1 8.:~ 1 §0~ == ·.={ o/~ =-~ $63~ _§ 6 . 149 _____ __ Q-1_~ _____ fl~ 1._QO_ _ __ <1.:0% _ ___ $610.~2~~ --_:l~§ 

__ 1_!!_4Q_ ·-- :t!.Bi!.PQ .. ___ ,i,_O% ______ $!)?7.428.03 -147 

___ .1?~7_ _.n:!1 0Q _______ _i~ r~. ___ ,_$~~4_, 834 .~i. ~ 

_ __ H!<1Q _ ___ $! ... 8.~LO.Q.... _ _ ~I?. __ _ $5~. 110 ._~ __ -145 

__ 8~g _ _J;1!.8_i2_._® ___ ~J) /~-- ~.§?2, 646 87 ·144 

____ 1Q.99. _._g50_9..:2Q. ___ <1 .Q_% ___ . ~~ 879 33 -143 

1851 4.0% $0.00 -142 

-1!352 --:r.T,5oo.oo --4.oo;;r---$378,261 .46 -141 - ----· ---·-··· .. ... -- ... - ..... ------r--- · .. ···- --'-'-'-=-tc----....:...:.-'1 ___ _l!L~ __ gOQQ Q.Q_ -~0.!~ --~~!34,9 50 60 -140 

185~ $1,200.00 4.0% $279,779.19 -139 

--855 t- ~:i :soo~o-o --4~ oio --$·3-36.273.06 . 138 

=-- 18~~ -=-= ·.~QQ-;9.Q:~ ~-=-~Jlr; =---$~2 339.49 -137 

___ 1_857 __________ ......i:_Q~ ---- 00 -136 

__ lfl.~Q. ,___~cu.~ .:9_o. _____ 4.0!o. _ _ l?}9,156.42 -135 

_ ___!Q?!J ___ $!!:!.Q2.18 _ _ _ ....i.:Q~ ~226,5'!_~ ·134 

__ _J_? ~o - -----·· ___ !'~ $o.oo -133 

_____!§_6_1 -------~0% - - · $0.00 -132 

__ 1_862 ----- --~QJ.of---· $0.00 -131 

__ :!.Q§.3_ _______ ., _ _ Q~r---· $0.00 ·130 

_ _!Q§_4 . __ ,Q~(2_ $0.00 -129 

___ 1§§!5. _______ __ 4~~ . $0.00 -128 

__ _Q~ -- ------ ____ __i,_0°/o __ __ _jp.OO -127 

1!367 $1,200.00 4.0% $168,028.13 -126 ri6il ·------isoo oo -- -,i. ;;,i; ---- $i3o:782.76 -125 

----1aG9 ---$o5o~~io ____ 4.'o~i: --·$·i-io,og2.4o -124 ---187o ------- - --,i:oo,i; - - - ·- $o.oo -123 __ . __ ,, ·----- ·--·--- -·---·" ·--------::-'---·-·" . ___ 1§71. ______ .,_ , __ 1\.:.Q "t~. $0.00 -122 

___ 1872 ____ $7]7.9_1_ _ _:\_i)_% $89,528.93 -121 

___ 1873 - --- --- ___ 4.Q% $0.00 -120 

_ --..!.QZI\ ___ $_iQ,QQ ____ 0.~ $4,256.25 -119 

_ .JQ?.!! ------... -----~-'-Q /~ $0.00 -118 __ 1!37_6 _________ _ '!.:0.!'2 r- $0.00 -117 

1877 4 0% $0.00 -116 ---H;m- ------+- 4o% $o.oo -115 ----... -=- _ , ______ ----:=t---::=-:-':7-::7-t---'-'-"1 

~~ --~~QQ.OO_ ~~ __ $69,96?.58 -114 

__ 1_?. Q9t---~ 00..: 9..9 . __ 4:9J.? $67,275.56 -113 

.. __ 1881 --~80Q.OO ___ <1 .0% $64,688.04 -112 

? ___ ~_!l OO .O O ___ tl.p ~ $62,200.04 ·111 

~:1 .. _ . ...!QQQ,Q.2- -- ~-Oo/~ ___ $_?9,807.73 -110 

_ _ l.QQ~. ---~q.QQ,9 Q_ _ _ _1,QY.? $57,507.43 -109 

___ 1 Q~Q - --- ~.!3QQ.:9Q ___ !!_.Q (2_~55 29? 61 "1 08 

___ 18?..? _____ :gl_9_9_:90._ --~: ~~ r--§53, 168.85 -107 

___ _!Q~7_ . _ _:t_?.QQ,OO _ __ _!Q 1~ ---~§1,123.90 -106 

1!Jfl[l $[)00.00 4.0% $49,157.59 -105 

_ 1ann -~iioo ~Q~,_: __ ,o"/;; __ .§.~ 266 92 -104 

_ __ 18QQ __ __ j!l.Q.O_.QQ ____ -~ f'~. --- 45,448.96 -103 

1891 $fl00.00 4.0% $43,700.92 -102 
206 

C/\ T 1\ Wn I\ PI\ YMENTS 

- ---_ :~- ~ ~ ~-- --~ .. . ~- -_ .-.. --1---- 1 

-~~~- j -~~~-~- -~~-~~ ~j --~ --- :~ ::. :~ = -_·_ :1~=~~~ H39t\ $ll00.00 I t\ .0% $38,849.96 -99 

~~-:-~j_ j)~ :·~=~=~G3fQO [-~ ~_ o;~ -=-~·= $?9A17.64-I-----=98 ____ !_QQ_Q 33Jl.Q ... .. _ .. U~Ofo --- ~ 1,890.50 -97 

1897 $!300.00 -1 .0% $34,537.47 -96 

___ f!! Q =-=~~QQo ~ -~~ 3:-§o/; ---=-- ~ !1511 .39 -95 

__ 18QQ _ j_!._Q_OAO.Q. _____ -I .Ooyo --~39 914.79 -94 

_ __!~_QQ_ $1,000.Q_Q_ --".:.9 ~ $38,379.61 -93 

_ _ 1_§l_Q_~ ___ __:~QQ9 0()_ _ -- °/"i--····---- ~36 903.47 -92 

_ _ 190~ $1,000.00 __ t\ (o~~5,484 11 ·91 

__ 1903 ~:LQ_OO OO ~ f----.$34,119.33 -90 

1901\ $1,00~~ -1 .0% $32,807.05 -89 

__ 1905 __ $1,5~~r- -1.0% $47,317.86 -88 

r----19061-_ $1,500.00 -1 .0% $45,497.94 -87 

1907 $3,000.00 4.0% $87,496.05 -86 

1908 $3,000.00 4.0% $84,130.81 -85 

1909 $3,000.?.g_ _ _ 14J~ _ _ $80,895.01 -84 

~~_Q_~~.500 ()_Q_ _ __!Q~~~90 747 61 -83 

1911 $5,000.00 __1 f-$_1 24 653.31 -82 

1912 $4,513.60 __ 4,Q ~----~108 199 08 -81 

1913 $7,150.00 ~0% $164,806.06 -80 

1-------'1-=-91;.,:4 $7,600.00 0%~168,440.84 -79 

1915 $7,000.0<2._ lf.O% $149,175.84 -78 

1916 $7,000,QQ ~ -I.O~ f---- $143,438.31 -77 

1917 $7,00Q4>_g_ 4.0% $137,921 .45 -76 

1918 $13,000.00 -1.0%_j 151,562.04 -75 

1-- 1;.;:9.,:.19"'1 $7,000.00 -~ o/(> $127,516.14 -74 

1-----'1~9;:20 ~§_OO.()_Q_ ~.Qre> _~148,885 60 -73 

1921 $7.700.00 4.0% $129,685.42 -72 

1922 $7,700.00 4.0% $124,697.52 -71 

1923 $6,625.00 4.0% $103,161 .97 -70 

1924 $10,375.00 4.0% $155,341 .87 -69 

1925 $9,375.00 4.0% $134,970.34 -68 

1926 $9,375.00 4.0% $129,779.18 -67 

1927 $9,450.00 4.0% $125,785.97 -66 

1928 $9,1f50.00 -- 4.0% $120,948.05 -65 

1929 $9,450.00 -1 .0% $116,296.20 -64 

1930 $9,450.00_ 4.0% $111,823.27 -63 

1931 $9,450.00 4.0% $107,522.37 -62 

1932 tMOs:OO:. 4.0% $97 424.37 -61 

1933 $11,222.50 4.0% $118,056.52 -60 

·1934 $9,450.00 0%~95.58J.OO -59 

1935 $7,50Q,OO ~-4.0% $72,944.90 · -58 

1936 ~9.45Q QQ_ 1-- 4.0% $88,375.55 -57 

1937 $9,450.00 4.0% $84,976.49 -56 

1-----'1.::.:933::= $9,45Q,QQ_ 1--- 1:9_"/o $81,708.17 ·55 

1939 $!),250.00 4.0% $68,588.97 -54 

1940 $9,825.00 lf.O% $78,541.56 -53 

1941 $9,385.00 lf.O% $72.138.64 -52 

---:1 94-:.;21-· $9,3~-~ _ _ __1J)Jo · $69,364.07 -51 

~9<13f---7$9,38~ 00 ~,:Q (!t--- $66,696.22 ·50, 

19<14 $12,000.00 4.0% $82000.19 -49 
207 

nATE:- - ------4.-o%.----l- - - --- -+----l 
208 

Mr. RICHARDSON. Let me say I admire my colleague's prodigious 

knowledge of this issue. I would like to ask my colleague how he 

wishes to proceed. I know he is accompanied by some very distinguished witnesses. Does my colleague wish to introduce them? 

Mr. SPRATT. That is an omission or oversight I made at the outset. I should introduce first of all those at the witness table, the 

counsel table with me. My good friend Senator Wes Hayes, a Senator from the district that covers this particular claim area. 

This is Chief Gilbert Blue, the Chief of the Catawba Indian 

Tribe. Seated behind him is his lawyer of the last 17 years, so far 

without compensation but nevertheless with total diligence and fervor, Don B. Miller of the Native American Rights Fund. 

In the room we have Mark Elam representing Governor Campbell who cannot be here because this hearing was scheduled on 

short notice. He is known to many of you because he worked on the 

Hill before when Governor Campbell was here as a Member of Congress. 

And Ken Woodington, who represents the Attorney General of 

South Carolina. Jim Quarles of Hale and Dorr, Jay Bender of 

South Carolina, Robert Jones of Rock Hill, South Carolina, who 

represents a particular group of the Indians but who also has been 

involved in this claim for some period of time, as well as Richard 

Steele of Union, South Carolina, who represents the same Indian 

constituency. 

In addition, we have present John Christie, who represents Bell, 

Boyd and Uoyd, who represents the title insurance companies in 

this lawsuit and has been involved from the inception of the claim. 

Mr. RICHARDSON. Would my good friend and colleague wish to 

join us at the dais, or does he prefer to sit with the witnesses? 

Mr. SPRATT. That would be nice. I could give up my chair and 

come up and join you, if that is okay. 

Mr. RICHARDSON. If my colleague wishes, Mr. Elam or anybody 

else that my colleague wishes could join the witness table. 

Mr. SPRATT. Just to complete what I have just presented, to complement it, I think it would be well to hear from the Catawbas next 

and then from Senator Hayes and Mr. Elam, to round out--

Mr. RICHARDSON. If my colleague could wait, our good friend 

from Hawaii, Neil Abercrombie has come in. I believe my colleague 

wishes to ask you a question. 

Mr. ABERCROMBIE. Mr. Spratt, thank you very much for that description and detailed exposition. I must say there are tremendous 

parallels for the-situation that happened to Native Hawaiians as 

well. I just want to clarify a couple of things for myself. 

The Nonintercourse Act, page 20 of your testimony, I believe it 

is, am I correct that the ultimate judicial system-excuse me, the 

ultimate judicial rendering was that the four points that I raise on 

page 20, they are in effect in this settlement proposal; is that correct? It embodies arid includes, represents an Indian tribe within 

the meaning of the Nonintercourse Act, et cetera? Is that all still 

in effect? Do I understand correctly from your testimony? 

Mr. SPRATI'. The court held these things must be shown. 

Mr. ABERCROMBIE. And they were shown, were they not, in the 

court's estimation? 
209 

Mr. SPRATT. Some of these issues are still in litigation, and 

haven't been finally resolved. As I said, we do not even have a responsive pleading in the form of an answer yet in this case. We 

haven't taken testimony on the this issue. 

One of the issues would be whether or not this Indian tribe 

would maintain a continuity of existence necessary to show it was 

the same tribe in 1840 as the tribe today pursuing this claim. 

Mr. ABERCROMBIE. Certainly the intent, though, of the 

Nonintercourse Act at the time it was passed was to have as its 

end result preservation of tribes, non-alienation of their land, et 

cetera; isn't that correct? 

Mr. SPRATT. The main purpose as I understand it was to require 

that land transactions between Indian tribes and white settlers be 

supervised and ratified by the Federal Government before they 

were consummated. 

Mr. ABERCROMBIE. And you make a statement on page 36, 

then-! want to just read it, it is only a sentence or so-"Had the 

Federal Government on any of the foregoing occasions upheld his 

trust responsibilities, the Catawbas would not have been denied redress for 150 years or lost the better part of their claim to adverse 

possession. Their land claim would have been settled long ago by 

the persons responsible for it and not by innocent landowners." 

Would you say those two sentences are a fair summary of the entire thrust of both the legal and the rhetorical observations? 

Mr. SPRATT. I would say so. Now, one reason that the 

Nonintercourse Act was not invoked apparently was it was not 

clear exactly what the scope and application of the act was during 

all these years up until the 1970s when the Penobscot and Passamaquoddy finally were able to obtain a ruling from the First Circuit Court of Appeals that the Nonintercourse Act applied to Eastern Indian land claims. 

Mr. ABERCROMBIE. Well, the chief might have a contemporary 

version of what-how you would define the non-Intercourse Act 

today, given this history. But I want to comment then, Mr. Chairman, and Mr. Spratt, that as far as I am concerned, with respect 

to the $32 million, which I think is the bottom-line dollar question 

to be settled, not only in this hearing, but by this Congress; that 

is correct? 

Mr. SPRATT. That is one of the bottom-line issues, no question 

about it. 

Mr. ABERCROMBIE. Relying on your-the background that I have 

been given here is that, as far back as 1756 when George Washington was a colonel, not General Washington, the Catawbas provided, 

if you take the most conservative estimate of the warriors available 

in that tribe, fully one-half of the warriors, the adult males-! presume there were no female warriors, I don't know the history at 

that point-but fully one-half of the adult males made themselves 

available to Colonel Washington. 

Mr. SPRATT. He sent for them. He sent someone to the tribe and 

asked for them because he needed scouts to go to Fort Duquesne. 

They sent a party that numbered somewhere between 125 and 150 

according to records because, again, George Washington recorded 

in his journal the arrival of Catawbas in his camp with one 
210 

Mannahoc who announced that he will not allow them to enter into 

service of the crown until he is handsomely compensated. 

Mr. ABERCROMBIE. Yes, I remember that part also in the testimony there. But my point really here is, is that what we have, is 

really a 300-year history, better than a 300-year history, and that 

as part of that history, people from the tribe were-at the time, of 

course, we weren't a Nation, but nonetheless, in the service of theof Virginia at that time under Colonel Washington, fully half the 

adult members of the tribe made themselves available, right? 

Mr. SPRAT!'. In every war but one, the Catawbas fought on the 

side of the American Colonials. Every war but one. 

Mr. ABERCROMBIE. The result of that, the unfortunate result of 

that was no doubt due to resistance factors, genetic factors having 

been associated with the tribe's isolation from western disease, that 

they acquired smallpox and the smallpox devastated the tribe; is 

that not correct? 

Mr. SPRAT!'. Literally decimated the tribe. Inflicted by smallpox, according to history, several times from the first contact with white 

settlers in the early 1700s. This was the most devastating episode 

of it. 

Mr. ABERCROMBIE. So if we look at this figure that you are talking about over a 300-year period of $52 million-! am talking now 

the whole factored amount, notMr. SPRAT!'. $50 million, not $52 million. $50 million even. 

Mr. ABERCROMBIE. I see. I was under the impression--

Mr. SPRAT!'. $32 million plus $18 million. Mr. ABERCROMBIE. I had--

Mr. SPRAT!'. $50 million. 

Mr. ABERCROMBIE. I had $52 million. You are lousing up my figures here. It makes it better actually, but the way I look at it, that 

is only $173,000 a year, and as you take 1,500-in other words, if 

you have a total tribe of about 1,500 people, if you take about 300 

warriors and you add in spouses and children and perhaps older 

people who weren't eligible, say about 1,500 people, we are talking 

about $115 a year per person. That is all that comes to is $115. 

So I don't even look at it as $50 million. I look at it as compensation, recompense due over 300 years that doesn't-that amounts to 

scarcely $100 a year. 

So it seems to me that a very strong case can be made not only 

from the social-historical side for settlement here and the participation of the Federal Government, but that this amount of money is 

almost shameful, from my point of view, in terms of how-as far 

as it is with respect to the history of this tribe and its contributions 

with respect to this Nation's history. 

So I can assure you, as far as I am concerned, no offense to the 

rest of the people testifying, that this is an extraordinarily modest 

settlement. And if it is satisfactory to all parties involved, I think 

we should count ourselves fortunate, indeed, from the financial 

point of view, and from my position as well, to say that the generosity and forbearance of the Catawbas is remarkable and is to be 

commended. 

Mr. SPRAT!'. Thank you, Mr. Abercrombie. We will have two witnesses on behalf of the State. Senator Hayes and Mr. Elam, and 
211 

both will tell you how tight the fiscal straits are for South Carolina 

right now. We have got a tight situation there. South Carolina has a balanced budget Constitution. I don't think 

State employees have had a raise for three years, so we have 

scraped the bottom of the barrel. Tlus is all the money we can get 

from State, local and private sources, and we have to have at least 

this Federal contribution if we are to make this settlement work. 

Mr. ABERCROMBIE. I assure you of my support. 

Mr. SPRATI. Thank you, sir. 

Mr. RICHARDSON. We would like our colleague, Congressman 

Spratt, to come up to the dais and join the Subcommittee on Native 

American Affairs. Mr. RICHARDSON. I will now recognize the Honorable Gilbert 

Blue, the Chief of the Catawba Indian tribe, to proceed. 

PANEL CONSISTING OF HON. GILBERT B. BLUE, CHIEF, CATAWBA INDIAN TRIDE, ROCK fiLL, SC, ACCOMPANIED BY 

DON MILLER, ESQ., NATIVE AMERICAN RIGHTS FUND; HON. 

ROBERT W. HAYES, JR., STATE SENATOR, SOUTH CAROLINA; 

MARK ELAM, SENIOR COUNSEL TO HON. CARROLL A. CAMPBELL, GOVERNOR, STATE OF SOUTH CAROLINA, ACCOMPANIED BY KENNETH WOODINGTON, SENIOR ASSISTANT ATTORNEY GENERAL, SOUTH CAROLINA, AND JAMES L. 

QUARLES III, ESQ., HALE AND DORR 

STATEMENT OF HON. GILBERT B. BLUE 

Mr. BLUE. Thank you, Mr. Chairman, and members of the Committee. Congressman Spratt, has very eloquently presented our 

case today, and I will not be repetitious in the historical events 

that have led to this day. What I would like to emphasize is the 

fact of the negotiating process that we went through to arrive at 

legislation. 

We spent many long hours together in Rock Hill for weeks at a 

time well into the night negotiating the things that we could give, 

the things that we would like to have as far as this legislative 

package is concerned. With all the hard work of the people involved, we felt we have come to a conclusion that will be suitable 

to everyone involved. 

The Catawba Indian people, we have made an effort as leaders 

on several weekends to hold meetings in the mornings and in the 

afternoon and in the evening as well to help keep the people informed as to what this legislative package consisted of, giving them 

the opportunity to ask questions that they might have concerning 

this legislative package. 

Also, we have many times gone out into the community and 

asked the people individually how they felt about the things that 

we have negotiated. So we feel, at least I do as a leader-and my 

people have voted at a tribal meeting and the majority overwhelmingly approved this package-we feel that we have-I know a question was raised earlier, a reference was made to the jurisdiction of 

civil rights and so forth in the package, and has already been alluded to. 

Not being a tribe that has had a certain amount of setup of government, these things would be more detrimental to our people and 
212 

more of a burden probably than they would have been an asset. 

But we feel in this package that we have the powers that we need 

to govem ourselves on the reservation, that we have the control 

over the people who will come on the reservation; any business 

ventures that we would become involved in, that we would have 

the opportunity and that we would have the power to govern those 

businesses and the people there to the best of our interests. 

I am thankful for all those, especially Congressman Spratt and 

those from the Governor's office and all those who involved themselves in the negotiating process that have finally brought us to the 

point that we are today. 

In conclusion, I would like to just comment to you, because I 

think it is important that you understand that as we present ourselves before you today, we do it as a group with the cohesiveness 

among us that this is the best way to go. In Rock Hill and York 

County, the realtors, the Chamber of Commerce, the Governor-excuse me-the Mayor and all the people involved in the economic 

process in York County have actually written me letters or called 

me on the phone asking me as the leader of the Catawba Nation, 

what are my thoughts on how roads are going to be extended, 

water rights, and things concerning the corridor of the Catawba 

River. 

I think this means to me that the people are concerned about the 

Catawba Nation in real life, that we are going to be an economic 

input to the area in which the Catawba Indians live. 

We will have the opportunity to involve ourselves in business 

ventures in and of ourselves. We will also have the opportunity to, 

with other people in the private sector of our community, to be involved with them in some adventures as far as economic businesses 

are concerned. 

This is the main thing that I wanted to convey to you today. I 

know that Congressman Spratt has given you the historical events 

that led up to where we are and he has done it admirably, so I am 

not going to try to be repetitious about going over those. 

I would like to say in conclusion that we are all together as one 

and we come here today asking that you support us and the Committee, and I endeavor to settle this longstanding claim that we 

feel has been long overdue. I feel good about the support that we 

have gotten and I have just returned from three days in Green 

Bay, Wisconsin with the National Congress of American Indians. 

We presented a resolution on the floor with representatives of all 

Native Americans throughout the United States. They approved 

the resolution to support this package. 

The Board of Directors of the National Congress of American Indians supported this by a resolution and that has been entered into 

my record as well as my written testimony. 

I thank you for your time and for your interest in our people. 

Mr. RICHARDSON. Well, Chief, thank you very much. 

[Prepared statement of Mr. Blue and attachment follow:] 
213 

PREPARED TESTL.\10NY OF GILBERT B. BLUE, CHIEF, CATAWBA INDIAN 

TRIBE OF SOU'ffi CAROLINA ON H.R.2399, A BILL TO SETTLE THE LAND 

CLAIMS OF THE TRIBE &"ill RESTORE THE FEDERAL TRUST RELATIONSHIP, 

BEFORE THE SUBCOMMITTEE ON NATIVE A.1\fERICAN AFFAIRS OF THE 

NATh'RAL RESOURCES COMMITTEE, UNITED STATES HOUSE OF 

REPRESL'fT ATIVES 

JULY 2, 1993 

Mr. Chairman and members of the Committee: 

Thank you for the opportunity to appear and present testimony on H.R. 2399, a bill 

to settle our Tribe's claim to possession of its ancestral treaty lands and restore the trust 

relationship between the Catawba Tribe and the United States of America. This bill, if 

enacted, will extinguish the Tribe's possessory land claims to 140,000 acres in return for 

payments to the Tribe of $50,000,000 over 5 years ($32,000,000 from the Federal 

Government and $18,000,000 from State and local sources). In addition, the trust 

relationship between the Tribe and the United States will be restored. At least 90% of the 

funds will be placed in trust funds for acquisition of Federal reservation lands (maximum of 

4,200 acres), economic development, education, social services and elderly assistance, and 

per capita payments to tribal members (15% or $7,500,000). H.R. 2399. together with the 

State implementing legislation signed earlier this month by Governor Carroll Campbell, will 

implement a comprehensive jurisdictional compact between the State and Tribe covering 

civil, criminal and regulatory jurisdiction. 

On June 12. 1979, I appeared at a hearing before the House Interior Committee to 

offer testimony on a Catawba land claim settlement bill introduced by Congressman Spratt's 

predecessor, Congressman Ken Holland. I and my fellow Executive Committee members 

had been actively attempting to resolve this claim for four years without resorting to 

disruptive litigation. While we had made limited progress, at the time of the 1979 hearing 

the Tribe, the State, the non-Indian occupants of the land, and the Federal Task Force that 

had been working on the settlement each maintained very different views regarding the form 

any settlement should take. Those differing views were presented to the Committee and, 

predictably, the settlement bill was not reported out of Committee. A second, renewed effort 

at settlement was made in 1980 under the capable guidance of then-Governor Richard Riley, 

hut it too collapsed under the weight of widely divergent views among the parties. 

Today, following almost 13 years of expensive and complicated Federal court 

litigation, we are again before the same Congressional committee advocating settlement of 

the Catawba land claim. However, unlike our previous journeys to our nation's capital, we 

come before you today united with our non-Indian neighbors in the desire to bring this long 

and sometimes bitter dispute to a just and honorable conclusion. 

It is not my purpose today to present a detailed history of our Tribe and our struggle 

to first retain and then regain possession of our ancestral treaty reservation. The story is a 
214 

long one and my testimony will recount it only briefly. The historical record speaks clearly 

for itself, and I shall seek only to refer the Committee to those few sources among the 

countless letters, official reports, news articles, and scholarly publications which I regard as 

central to an understanding of this 200-year-old controversy. While an understanding of the 

events of the past must always inform the actions of the present, I firmly believe that we as a 

Tribe must focus our energies and our efforts on the future. And that, I believe, is exactly 

what the Catawba Indian Tribe did last February 20 when we voted 289 to 42 to accept the 

settlement agreement that is embodied in H.R. 2399. 

In addition, it is equally clear that our non-Indian neighbors have likewise decided to 

look to the future rather than to the past. And the overriding significance of the fact that we 

appear before you today united with the State and local governments, as well as private 

interests, is that for the first time in over 200 years we, as a Tribe, will have the opportunity 

to share in that vision of the future as equal participants. This settlement will not make us 

rich Indians, but it will provide us the economic and governmental tools with which we can 

fashion a proud and self-reliant future in partnership with our non-Indian neighbors. 

Beyond fulfilling the spirit of the promises contained in our 1760 and 1763 treaties 

with the British Crown, H.R. 2399 furthers the important modem Federal policies of 

encouraging consensual settlements, fostering Indian self-determination, and restoring the 

Federal trust relationship with those tribes terminated pursuant to the misguided Federal 

Indian policies of the 1950's. But it furthers these policies in a way that is tailored to meet 

the particular needs of the Catawba Tribe. Because H.R. 2399 and the settlement agreement 

it embodies result, to some degree, from the Catawba Tribe's unique circumstances, it is 

important to note at the outset that we realize that the terms our settlement are perhaps not 

ones that other differently-situated Indian tribes would necessarily find satisfactory if applied 

to them. 

Because many of the provisions of the settlement agreement, particularly in the area 

of jurisdiction, do not follow the "general rules" of Federal Indian law, the bill as introduced 

may raise questions among Indian leaders around the country whether the Catawba land 

claim settlement act represents a shifting of Federal Indian policy away from tribal selfgovernment and toward greater state involvement in the governmental affairs of Indian tribes. 

I wish, therefore, to emphasize that this is not the case. 

This complex legislation is the product of an arduous negotiation process spanning 

three years. Each provision is the product of detailed and intense give and take among the 

parties. The settlement agreement embodied in the State and Federal implementing 

legislation is painstakingly crafted and represents a delicate balance of the diverse and 

sometimes competing interests of the numerous parties involved in and impacted by the 

settlement. I stress this to the Committee for two reasons. First, I hope that other Tribes 

will understand that this legislation, like other acts implementing consensual, negotiated 

settlements, is fact and tribe-specific. Second, I hope that Congress will, to the greatest 

extent possible, give deference to the parties' accord with the understanding that amendments 

2 
215 

which would significantly alter the terms of our agreement might well result in a collapse of 

the settlement and condemn the parties to many additional years of disruptive and expensive 

litigation. 

The Catawba Tribe and the State have negotiated a broad jurisdictional compact that 

in many ways is unique, covering in detail civil and criminal cause of action jurisdiction as 

well as a wide range of civil regulatory matters. The manner in which the parties' 

agreement divides and allocates the respective jurisdictional powers of the Tribe and State 

and Federal governments reflects the particular circumstances of the Catawba Tribe and its 

non-Indian neighbors. These allocations are a function of many complex factors, including 

the risk of continued litigation, the expensive and disruptive nature of the protracted legal 

proceedings, the Tribe's unique history, its proximity to major urban areas, our desire to 

emphasize and promote economic development and, most importantly, the wishes of Catawba 

Tribe as expressed by an overwhelming vote of support for the settlement agreement. 

Therefore, beyond furtherance of the general Federal policies of encouraging 

consensual settlements, fostering Indian self-determination, and restoring terminated Indian 

tribes, the Catawba Land Claim Settlement Act should not be viewed as a precedent that 

either sets forth or impacts Federal Indian policy. Rather, it is legislation that seeks to 

implement the agreement of particularly situated parties engaged in unique and troublesome 

litigation. We are grateful that The National Congress of American Indians recognized the 

importance of this settlement bill and enacted a resolution of support earlier this week at its 

mid-year meeting in Green Bay. [Exhibit A]. 

The Catawba Tribe strongly endorses the provisions of the bill as introduced. 

We have pledged our good faith efforts to secure its enactment in its current form , as it will 

implement the agreement as negotiated by the parties. We respectfully request that Congress 

make clear to the national Indian community that this bill in no way represents a modification 

or departure from current Federal Indian policy. 

The history of our centuries-long struggle to protect our lands tells the story of 

a once-powerful and self-sufficient Indian tribe reduced to a state of poverty and dependence 

by the neglect and mismanagement of state and Federal officials. It is important to briefly 

review that history here, not because we desire to view ourselves, or desire others to regard 

us, as victims of the oppression of the dominant culture. Indeed , in many respects, we have 

adopted the ways and become a part of mainstream American society. But in many other 

fundamental ways, we continue to survive as a tribal people. And that fact, together with the 

history of opportunity denied and justice postponed, form the basis and justification for 

favorable Congressional action on H.R. 2399. 

Before outlining the historical justification for Federal participation in this 

settlement, I would like to refer the Committee to two recent publications that document in 

scholarly detail the history of our Tribe and its reservation. These works are required 

reading for anyone seeking to gain a full appreciation of our Tribe's history . First, our long3 
216 

time friend , Dr. Thomas J. Blumer, authored a comprehensive collection of historical 

citations in Bibliography of the Catawba, Scarecrow Press, Metuchen , N.J. (1987). Two 

years later, Vassar history professor Dr. James H. Merrell's widely acclaimed history of our 

Tribe was published. The Indians' New World -- Carawbas and Their Neighbors .from 

European Contact through the Era of Removal, University of North Carolina Press, Chapel 

Hill (1989). 

THE HISTORICAL/LEGAL BASIS FOR FEDERAL 

PARTICIPATION IN THIS SEmEMENT' 

In 1760 and 1763, the Catawba Tribe entered into treaties with the British 

Crown whereby the Tribe was secured in possession of a 144,000 acre, 225 square mile 

reservation and its title thereto recognized by the Crown. In return, the Tribe ceded its 

remaining aboriginal territory in North and South Carolina. In the treaties, the Crown 

undertook fiduciary obligations to protect the Tribe in possession of its reservation, and in 

fact later took affirmative action to thwart efforts by third parties (the Colony of South 

Carolina and others) to deprive the Tribe of possession. (For a more detailed history of this 

period, see Hearings on H.R. 3274, Before the Committee on Interior and Insular Affairs, 

House of Representatives, "To Settle the Nonintercourse Claims of the Catawba Indian Tribe 

of South Carolina," 96th Cong. , 1st Sess. at 135-182 (1979) [Exhibit B]. 

The property rights of the Tribe recognized under British law, as well as the 

Treaty obligations of the Crown, became binding upon the United States upon its 

independence from Great Britain. Since before the adoption of the Constitution, the United 

States has been aware that the Catawba Tribe possessed recognized title and that our lands 

were being encroached upon by non-Indian settlers. Indeed, in 1782 , our Tribe petitioned 

the Continental Congress to protect our treaty reservation from encroachment by whites. In 

1791 , our chiefs met with President George Washington in Lancaster County, South Carolina 

and requested that be take action to protect our reservation. 

And the protection we sought was no greater than that provided by existing 

Federal law. In 1790, the First Congress enacted the first Nonintercourse Act to ensure that 

Indian rights of occupancy could only be interfered with or determined by the United States. 

The Act, presently codified at 25 U.S.C. §177, provided that any conveyance in violation of 

its terms would be void. This Act, as well as federal common law, adopted and carried 

forth the policies of the Crown respecting Indian land tenure and rights and established in the 

United States a fiduciary duty to protect all Indian Tribes, including the Catawbas, in 

possession of their lands. 

1 In preparing this history, I have freely relied on the legal research in this case 

prepared by our attorneys from the Native American Rights Fund. 

4 
217 

In 1840, following decades of illegal State-sanctioned and regulated leasing of 

Catawba reservation lands to which the Federal Government turned a blind eye, the State of 

South Carolina dispossessed the Tribe of its Treaty reservation in violation of federal law. 

In the Treaty of Nation Ford, which the United States neither participated in nor approved, 

the State attempted to extinguish the Tribe's recognized Treaty title in return for its promise 

to acquire for the Tribe new lands elsewhere and to pay $16,000 to the Tribe over a 10-year 

period. The State failed to honor its bargain and the Tribe wandered homeless for over 2 

1/2 years until the State bought back a 630 acre farm located within the original 144,000 

acre Treaty reservation as a "new" reservation for the Tribe. The Tribe: continues today to 

reside on this 630 acre tract, which is held in trust for the Tribe · s benefit by the State of 

South Carolina. See Hearings on H.R. 3274 at 177-186 . 

The 1840 dispossession of the Tribe is the basis of the Tribe's lawsuit in 

Federal District Court against the State and private landholders who currently possess the 

1763 Treaty reservation. The Tribe asserts a Federal right to current possession because the 

1840 State treaty was void under the Nonintercourse Act and Federal Common Law. 2 

In the century following the 1840 state "treaty," the Tribe made numerous 

efforts to secure the assistance of the: United States in resolving its land claim.' For 

example, in 1848 and 1854, Congress enacted statutes authorizing the removal of the 

Catawbas west of the Mississippi. In 1906 and 1908, the Tribe formally requested Interior's 

assistance in obtaining either compensation or return of the land based on the requirements of 

Federal law. Interior twice refused assistance based on the erroneous legal position that the 

Catawbas were "state Indians" and therefore not entitled to the protection of Federal law. 

On several occasions, Interior sent agents to South Carolina to investigate the claim and their 

reports documented in detail the Tribe's dispossession and the State's failure to abide by the 

terms of the 1840 Treaty.' 

2 See, e.g., Oneida Indian Narion v. Counry of Oneida, 414 U.S. 661 (1974); Oneida v. 

Oneida Indian Narion. 470 U.S. 226 (1985); Unired S!ares v. Sanra Fe Pacific R. Co., 314 

U.S. 339 (1941); Joinr Tribal Council ofrhe Passamaquoddy Tribe v. Monon, 528 F.2d 370 

(lst Cir. 1975). 

3 For a more detailed examination of the United State's mis-handling of this land claim, 

please refer to the Tribe's legal briefs before the United States Supreme Court in our claim 

against the United States [Exhibit C] and our claim to regain possession of the land [Exhibit 

D]. A more complete summary of Government involvement is contained in the /ruler of 

Carawba Hisrorical Documems, Native American Rights Fund (February , 1990). [Exhibit 

E]. 

• Please refer to BIA documents relating to the Tribe's 1905 and 1908 requests [Exhibit 

F], the 1911 report of Special Indian Agent Charles Davis [Exhibit G], and the Memorandum 

to the Commissioner of Indian Affairs from D'Arcy McNickle [Exhibit H] . 

5 
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In 1940, following a BIA official's report that the Catawba Tribe probably had 

a claim against the State of South Carolina arising out of the 1840 treaty, the Interior 

Department took affirmative, if timid, steps to protect the claim. During negotiations 

between the State and Federal governments aimed at securing federal and state participation 

in a rehabilitation program for the Tribe, the State initially sought to condition its 

participation on a release and quit-claim by the Tribe of its treaty land claim. But the 

Interior Department refused to agree to the claim's extinguishment and so advised the State. 

That position was later upheld by the Interior Department Solicitor who doubted the legality 

of using the agreement "to deprive the Indian Tribe of claims which it might be able to 

enforce in the courts." Mem. Sol. Int., Jan. 13, 1942, "Re The Memorandum of 

Understanding, etc." reprinted in I Opinions of the Solicitor of the Depanment of the Interior 

Relating to Indian Affairs, 1917-1974, 1080, 1081-82 (Gov't Printing Office, n.d.); see South 

Carolina v. Catawba Indian Tribe, 476 U.S. 498, 516-517 (1986) (Justice Blackmun 

dissenting). 

These negotiations resulted in a 1943 Memorandum of Understanding between 

Interior, the State and the Tribe pursuant to which an additional 3,434 acres, all within the 

boundaries of the 1763 Treaty reservation, were acquired by the State and transferred to the 

Secretary of the Interior in trust for the Tribe. The United States agreed to provide Federal 

Indian services and, following a Solicitor's opinion concluding that the Catawba Tribe had 

been recognized by the United States since at least 1848 and that its continuous existence as a 

Tribe could not seriously be questioned, the Tribe adopted a constitution under the Indian 

Reorganization Act. See Questions of the Catawbas' Identity and Organization As A Tribe 

And Right to Adopt An IRA Constitution, Mem.Sol.Int., April II, 1944, reprinted in II 

Opinions of the Solicitor of the Depanment of the lnten·or Relating to Indian Affairs, 1917-

1974, 1261 (Gov't Printing Office, n.d.) [Exhibit I]. Thus, at the beginning of the Tribe's 

short-lived "Federal period," Interior had compiled a voluminous record documenting the 

existence and nature of the Tribe's third-party possessory claim. 

In 1953, Congress drastically altered the course and direction of federal Indian 

policy with the passage of House Concurrent Resolution No. 108, declaring it to be the 

policy of the Federal government to terminate the United States' trust relationship to Indian 

tribes. Pursuant to that policy, the BIA in 1954 identified the Catawba Tribe as a likely 

candidate for termination. South Carolina v. Catawba Indian Tribe, 476 U.S. at 503. In 

1958, Congress and the Eisenhower Administration, in recognition of the disastrous effects 

termination was having on Indian people, revised the termination policy, rejecting coercive 

termination of Indian tribes in favor of a policy that permitted termination based only on 

informed tribal consent. See F. Cohen, Handbook of Federal Indian Law 182 (1982 ed.). 

Nonetheless, BIA pressed forward with its termination agenda and, shortly 

after the 1958 policy revision, dispatched Special Agent Raymond Bitney to the Catawba 

Tribe for the purpose of securing tribal consent to termination of Federal supervision. 

Because the Federal Government had failed to provide services under the 1943 Memorandum 

of Understanding and the Tribe was therefore unable to provide housing or productively 

6 
219 

utilize its restricted Federal lands (the J ,-lJ4 ac res acquired in 1943), trihal dissatisfaction 

with our new Federal status was running high. 

Federal officials played em this dissati,faction to gamer tribal support fo r the 

tenuination proposal. telling the Tribe that while they were powerless to provide additional 

se rvices, they could facilitate a removal of federal restrictions to the 3AJ-l acres. This 

would result in the Indians acquiring unrestricted fee title which they could then mortgage 

and thereby secure the funds to improve their housing and finance fam1ing operations. The 

BIA would thus be relieved of the du ty to provide services it had undertaken in the 1943 

agreement wit h the Tribe and the State . 

BIA fil es show that Agent Bitney pressed Interi or's case for termination to the 

Ind ia ns in a door-to-door, famil y-by-fatnil y campaign during the last quarte r o f 1958. His 

reports, which contain a detailed na rrati ve of the issues discussed at each visit. show that 

during these meetings several tri bal offic ials expressed concern about the Tribe's land claim 

agai nst the State with one offi cial stating that Interior's plan could not go forwa rd until the 

land claim was resolved. Agent Bitney assured our leaders, most of whom. including my 

uncle Chief Samuel Blue. could neither read nor write. that our land clai m wou ld in no way 

be jeopardized by Interior's proposa l to withdraw Federal supervision. 

The meetings at which the BIA's termination proposal was considered by the 

Tribe were attended by Bitney and other Federal officials. The Tribe had no lawye r. Agent 

Bitney worked closely with tribal offi cials to ensure tribal consent and drafted the Tribe's 

resolution of approval. The Tribe's January 3,1959 resolution . as drafted by Bitney . 

expressly conditioned the Tribe· s support for the legislation on there be ing nothing in the 

legislation affecting the status of the Tribe 's land claim. After the Tribe adopted the 

resolution , the BIA sent it to Congressman Hemphill who sent it right back to BIA requesting 

BIA 's assistance in drafting a bill "to accomplish the desire [of the Tribe) set forth in the 

resolution." The BIA then drafted a bill that made state law generally appl icable but made 

no mention of protecting the land claim. 

The Congressman and Interior officials then presented the bill to the Tribe at a 

March 28. 1959 tribal meeting and assu red us that it had been drafted to ca rry out the intent 

of the resolution. The Tribe's offi cial minutes of the meetings reveal that we believed the 

draft legislation to have been a "contract that was drawn up by the Bureau of Indian Affairs." 

Based on those assurances, and without legal guidance, the Tribe approved introduction of 

the legislation at the March 28 , 1959 meeting. 

Congressman Hemphill 's introductory remarks emphasized to Congress that 

the Tribe's consent was contained in the January 3, 1959 resolution. 105 Cong. Rec. 5462 

(1959). At the subcommittee hearings on the bill, the Congressman and Interior officials 

emphasized that the bill had been drafted to confonn to the desires of the Tribe as expressed 

in the January J. 1959 resolution, which was introduced into the hearing record. Congress 

relied on the January 3 and March 28 endorsements of the bill by the Tribe as the 

7 
220 

expressions of the infonned tribal consent required by Federal policy, but, like the BIA and 

the Congressman, either overlooked or conveniently ignored the part about our consent being 

conditioned on protection of the land claim. H.R. Rep. No. 910, 86th Cong .. 1st Sess.: 

reprinted in 1959 US. Code Con g. & Ad. News 2671: 2677.. 

On September 21, 1959, Congress enacted the bill in substantially the same 

fom1 that it had been presented to the Tribe. Congress did amend the bill to provide that it 

would not become effective until a majority of the adult members of the Tribe agreed to 

accept the division of assets in accordance with the Act's provisions. BIA agents were once 

again dispatched to the reservation and by June 30, 1960, BIA officials had collected enough 

signatures to pennit Interior to announce that the Tribe had accepted termination. Pursuant 

to the Act,, Interior liquidated the 3,434 acres acquired in 1943 and, on July I, 1962. 

formally decreed that termination of the Catawba Tribe was final. 

Until the 1959 Act became effective in 1962, Interior continued to be our 

Tribe's trustee subject to all fiduciary duties to protect and preserve tribal assets. During 

this period of more than two and one-half years, the Government's files show that our land 

claim was brought to Interior officials' attention several times. Interior officials led us to 

believe that the claim was protected or simply "made no comments." We had no lawyer and 

were wholly dependent upon the BIA for guidance and assistance. At no time did Interior 

officials advise us that the Government might not have fulfilled its contract to preserve the 

claim nor did they advise us to seek legal counsel. 

In 1976, after obtaining the assistance of the lawyers at the Native American 

Rights Fund. the Tribe again submitted a litigation request to the Interior Solicitor. In 1977. 

the Solicitor formally requested that the Department of Justice initiate litigation on the 

Tribe's behalf, noting that "this is the third time the Catawba Tribe has petitioned the 

Department to seek relief on their behalf and they have been twice refused for legally 

incorrect reasons." Solicitor Krulitz further concluded that: I) the Catawba Tribe had been 

dispossessed of its treaty reservation in violation of Federal law; 2) the 1840 state treaty was 

void: 3) the Tribe could establish a pn'ma facie case for repossession of its reservation under 

the Nonintercourse Act; 4) "the United States has had a duty under the Non-intercourse Act. 

since the Treaty claim accrued in 1840, to take action to protect the Catawba's rightful 

ownership of the 1763 reservation;" and 5) "this duty was not affected by the 1959 Act." 

[Exhibit J]. The Solicitor's litigation report concluded: "Thus, the case is a particularly 

inviting one for a negligence claim against the United States should this Department fail to 

advocate relief for the Catawba." [Exhibit K at 31]. The litigation request was later 

withdrawn in an effort to emphasize that the Interior Department favored a negotiated 

settlement if at all possible. See Hearings on H.R.3274, at 16, 67; South Carolina v. 

Catawba Indian Tribe, 476 U.S. 498, 518 (1986) (Justice Blackmun, dissenting)-' 

5 On March 31, 1983, the Secretary of the Interior included the damages portion of the 

Catawba Tribe's land claim on the list of potentially meritorious Indian claims to be 

8 
221 

Thereafter, efforts to legislatively settle the claim failed. [Exhibit L, NARF Legal Review at 

8-10]. 

In 1980, the Tribe ftled an ejectment action in Federal District Court seeking 

to recover possession of its treaty reservation based on its unextinguished, recognized Indian 

title. In 1983, the district court dismissed the claim based on the 1959 Act, concluding, 

among other things, that the Act resulted in the application of state statutes of limitations to 

the Tribe's claim and that they operated to bar the claim in its entirety. The Court of 

Appeals for the Fourth Circuit reversed, holding that the 1959 Act did not extinguish the 

claim nor had state law become applicable to the claim as a result of the Act. Because it 

held state law inapplicable to the claim, the Court of Appeals did not decide what effect 

South Carolina statutes of limitations would have on the claim. Catawba Indian Tribe v. 

State of S.C. , 718 F.2d 1291 (4th Cir. 1983), alf'd en bane 740 F.2d 305 (4th Cir. 1984) 

(Catawba/) . 

On the State's petition to the Supreme Court for a Writ of Certiorari , the 

Department of Justice, overruling Interior's views, urged the Court to grant certiorari and 

reverse the Court of Appeals on the grounds that the 1959 termination act had, contrary to 

the Government's 1959 bargain, destroyed the Tribe's claim through the application of state 

statutes of limitations. This was the first notification received by the Tribe that the 

Government would not fulfill its bargain and take action to protect the claim or that it 

believed that the claim had been unprotected since 1962. 

The Supreme Court granted certiorari and ruled against the Tribe in 1986. 

Reviewing the single issue of whether the 1959 Act applied state statutes of limitations to the 

Tribe's Federal cause of action, the Court ruled 6-3 that the statute's plain language (drafted 

by the BIA) compelled the application of state law limitations periods to the claim. Sowh 

Carolina v. Catawba Indian Tribe , 476 U.S. 498 (1986). The case was remanded to the 

Court of Appeals to determine the effect of state law limitations on the Tribe's claim. 

In 1989, the Court of Appeals ruled that an undetermined portion of our claim 

survived because South Carolina's 10-year statute of limitations would operate to bar the 

Tribe's claim only to those lands where the non-Indian occupant could prove adverse 

possession for a continuous 10-year period between 1962, when the termination act became 

effective, and 1980, when the Tribe filed suit. Because adding together ("tacking") 

successive periods of adverse possession to meet the I 0-year statutory period is not permitted 

by South Carolina law, the Tribe's claim would not be barred as to lands not continuously 

investigated by the Department of the Interior pursuant to 28 U.S.C. §2415 (1982). 48 

Fed.Reg. 13920 (1983). Interior's inclusion of the claim on the §2415 list meant that 

§2415's Federal statute of limitations would not begin to run on the claim until the 

Department formally notified the Tribe that it would not pursue the claim on the Tribe's 

behalf. The Catawba land claim remains on the §2415 list. 

9 
222 

possessed adversely for 10 years. Catawba Indian Tribe v. State of S.C. , 865 F.2d 1444 

(4th Cir. 1989), cen. denied, 491 U.S. 906 (1989) (Catawba ll). 

On remand, the district court, on July 19, 1990, found numerous defendants' 

evidentiary showings to be sufficient to prove adverse possession for 10 years. It then 

dismissed 75 % of the land occupied by the named defendants (parcels totaling 10 to 20% of 

the 1763 Treaty Reservation). On the Tribe's appeal, the Court of Appeals for the Fourth 

Circuit affirmed in part, reversed in part, and vacated and remanded in part. Catawba 

Indian Tribe v. South Carolina , 978 F.2d 1334 (4th Cir. 1992) (en bane), cen. denied, 113 

S.Ct. 1415 (1993) (Catawba Ill). 

In 1990, the Tribe filed suit against the United States for that portion of the 

claim that has been or will be lost--estimated to be 75% based upon Catawba III-- as a 

result of the Government's breaches of contract and trust in failing to protect the land claim 

from the effects of the 1959 Termination Act. Although that suit was dismissed on statute of 

limitations grounds, Catawba Indian Tribe v. United States, 982 F.2d 1564 (Fed.Cir. 1993), 

cen. denied, June 21, 1993, it remains clear that the Federal Government's negligence 

directly caused the Tribe to lose at least 3/4 of the claim. For, as the Supreme Court ruled, 

without the 1959 Act's application of state statutes of limitations, our claim, like that of the 

Oneida Tribe in New York, would be intact and entirely free from the application of any 

time-related defenses. See footnote 2 above. 

The historical record of Federal neglect and mismanagement contained in the 

Interior Department's own flies, see Exhibits C, D & E, together with the failure both of 

Congress in 1959 and the Justice Department in 1985 to take action to protect the claim, 

form the basis for at least a 75% Federal share of the settlement contribution. The fact that 

the United States can now bar the court-house door and prevent the merits of our claim from 

being heard in its courts does not absolve this nation of its moral duty to set its account 

straight with the Catawba Tribe. As Justice Blackmun observed in his dissent from the 

Court's 1986 ruling: 

Today's decision seriously handicaps the Catawbas' effort to obtain even 

partial redress for the illegal expropriation of lands twice pledged to them, and 

it does so by attributing to Congress, in effect, an unarticulated intent to trick 

the Indians a century after the property changed hands. From my perspective, 

there is little to be proud of here. 

Because I do not believe that Congress in 1959 expressed an unambiguous 

desire to encumber the Catawbas' claim to their 18th-century treaty lands, and 

because I agree with Justice Black that "[g]reat nations, like great men, should 

keep their word, • . . . I do not join the judgment of the Court. 

476 U.S. at 529 (citation omitted). The enactment of H.R. 2399 will belatedly permit this 

great nation to keep its word to the Catawba Tribe. 

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THE PUBLIC POLICY/EQUITABLE JUSTIFlCATION FOR FEDERAL 

PARTICIPATION IN A LEGISLATIVE RESOLUTION 

In addition to the moral and legal/historical justification outlined above. there 

exists a second compelling need for Congress to act expeditiously to settle this claim. 

Following the Federal District Court's refusal to certify a defendant class action in 1991, and 

with the settlement talks that had begun in 1990 apparently stalled. the Tribe began 

preparations to sue each of the 6 1,767 occupants of the claim area for possession of the lands 

they occupied. The Court's denial of class action status had re-started the running of a 

statute of limitations period in which only 20 months remained when we tiled our lawsuit in 

1980 . With the Tribe's preparations to fil e the massive lawsuit on September 2, 1992 

nearing completion," Congress, in August, 1992 , enacted legislation that again suspended the 

running of the statute of limitations to give the parties additional time to negotiate a 

settlement. [Exhibit M, the Act of August, II , 1992 , 106 Stat. 869]. 

After 10 days of virtuall y non-stop negotiations, by the earl y morn ing hours of 

August 29. 1992. we had made substantial progress toward agreement. Later that day , the 

Tribe assembled and concluded that settlement was likely. Consequentl y, we ag reed to 

postpone ftling the suit that all parties had come to regard as a "doomsday bomb " fo r the 

entire region. See Exhibit N, (a sampling of press clippings). Negotiati ons continued, and 

in January , 1993 we finalized an Agreement in Principal [Exhibit 0 ] that would form the 

basis of the State and Federal implementing legislation. On February 20 , 1993 , the Trib~ 

overw helmingly endorsed the Agreement. See Exhibit L, NARF Legal Review at 11 - 12. 

On June 14, 1993 , in a signing ce remony in the rollmda of the State Capital. 

South Carolina Governor Carroll Campbell signed the State implementing legislation into 

law. [Exhibit P]. It is now up to Congress to take the final step in bringing this 200-yea rold struggle to a close. The 102nd Congress envisioned such action last August when it 

extended the statute of limitations until October I, 1993. Quick enactmt::nt of H.R. 2399 will 

' As Exhibit Q, I have furnished the Committee samples of the printed indi vidual 

summonses and complaints, together with the notice of claim (Lis Peruiens) and necessary 

forms for service by mail. These samples are stamped "VOID" and "CONFIDENTIAL" as 

they contain the official seal and signature of Clerk of the United States District Court for the 

District of South Carolina. The suit against the 61 , 767 individuals. captioned Catawba 

Indian Tn'be of South Carolina v. City of Rock Hill. Case No . 92-2450, has not been tiled. 

The offi cial signatures, seal, filing stamp and case number were obtained through pre-:lling 

orde rs issued by the Fede ral district court to fac ilitiate priming, service by mail and the 

court's orderly administration of the case. The original summons, complaint and Lis 

Pendens that will be fil ed with the court is a document 16 inches thick, and is not included 

as an exhibit to my testimony, although one copy is available fo r the Committee's viewing. 

The ori ginal documents for tiling, together with the I ...l million pages of documents fo r 

service by mail. are in storage. It is ou r hope that we can soon recycle them. 

II 
224 

remove the title cloud on the homes and businesses of 62,000 individuals and the resultant 

economic uncertainty that has confronted our region for nearly 20 years. In addition, it will 

enable the Catawba Tribe to build a secure future and thereby fulfill, at least to some small 

measure, the promise of cultural and political survival and economic self-sufficiency that our 

ancestors first bargained for in treaties with the King of England. In contrast, yet another 

Federal failure to act will condemn the Tribe and our non-Indian neighbors to a litigation 

purgatory, an uncertain future created by the spectre of the massive economic and social 

disruption that inevitably would attend such expensive and divisive litigation. 

Please give H.R. 2399 quick and favorable consideration. Thank you. 

Gilbert Blue, Chief 

Catawba Indian Tribe of South Carolina 

12 
225 

FACT SHEET 

H.R. 2399: CATAWBA LAND CLAIM SETTLEMENT & RESTORATION 

IDSTORY. 1763 Treaty Reservation (144,000 acres) taken by State in 1840 in 

violation of Federal law, giving rise to tribal claim to possession of land now 

occupied by 62,000 defendants. Tribe terminated by Congress in 1959. 

SETTLEMENT PROVISIONS. Tribe releases claims in exchange for $80 to $90 

million in value -- $50 million in cash ($32m federal & $18m state & local) 

paid over 5 years. Includes restoration of Federal trust relationship; trust 

funds for land acquisition (up to 4,200 acres), economic development, social 

services and elderly assistance, education, and per capita payments (15% or 

$7 .5m); and comprehensive jurisdictional compact between state and Tribe 

(covering civil, criminal, and regulatory jurisdiction). 

TRIBAL SUPPORT. On February 20, 1993, Catawba Tribe voted 87% in favor 

(289 to 42) of settlement package negotiated by its Executive Committee & 

attomeys over a 3-year period of intense negotiations. 

JUSTIFICATION FOR FEDERAL PARTICIPATION. Since 1840, the United 

States has been aware that the Tribe lost its lands illegally, yet, despite repeated 

tribal requests, took no action to fulfill its duty to protect the Tribe in 

possession of its Treaty Reservation. In 1959, the Interior Department 

promised the Tribe that, in return for the Tribe 's agreement to release the BIA 

from a contractual duty to provide services, the BIA would protect the Tribe's 

land claim. BIA then told the Tribe, which had no lawyer and whose leaders 

could neither read nor write, that its claim was being protected, while at the 

same time pushing a bill through Congress that did not protect the claim. 

Later, BIA led the Tribe to believe that it would take action to preserve the 

claims, but did not. In 1991, the Federal courts ruled that as much as 75% of 

the Tribe's land claim had been lost as a result of the BIA's broken promise. 

NEED FOR QUICK FEDERAL ACTION. In August, 1992, Congress extended 

statute of limitations applicable to Tribe's claim until October I , 1993 to avoid 

individual lawsuits against 62,000 occupants & give parties more time to reach 

settlement. State legislation implementing settlement signed into law on June 

14, 1993. If settlement is not final (signed by President) by September, Tribe 

must file lawsuits against 62,000 individuals -- resulting in collapse of 

settlement. 

STATUS OF FEDERAL SETTLEMENT BILLS. H.R. 2399 introduced on June 

I 0, 1993 & hearings before Subcommittee on Native American Affairs 

scheduled for July 2, 1993 at I :30. S. 1156 introduced on June 24, 1993. 
226 

Mr. RICHARDSON. The Chair recognizes Senator Hayes. Senator, 

welcome. 

STATEMENT OF HON. ROBERT W. HAYES, JR. 

Mr. HAYES. Thank you. Let me begin by thanking the Committee 

for allowing me to testify. I will point out, as Congressman Spratt 

did, that I too am a land owner in the claim area. It is ours, as 

are most of the 60,000 landowners in the claim area, and my Senate-! wanted to point it out so there is no question that I have 

that personal interest. 

The South Carolina General Assembly has recently passed, and 

the Governor signed, a State version of the Catawbas Indian settlement which calls for the State to pay $2.5 million a year for five 

years for a total of $12.5 million towards settling this claim. The 

total settlement is $50 million. 

This $12.5 million represents a substantial State commitment toward resolving the issue. The remainder of the settlement agreement also represents a strong commitment toward resolving this 

issue. The remainder of the settlement agreement also represents 

a strong State commitment toward resolving this matter in that 

the Catawba Indian Tribe was given certain autonomy over civil 

and criminal matters, as well as certain tax exemptions. 

This commitment on the part of the State goes beyond any potential liability that the State may have under the claim which speaks 

to the desirability of having the claim resolved from an economic 

development standpoint for the State of South Carolina, particularly in the northern region of the State which is affected by this 

claim. 

The claim has been in litigation for over 12 years and could very 

well go on for another 12 years before being finally resolved. A 

great deal of development has been lost from this part of South 

Carolina because of the cloud on title. 

Also, the claim is at the point where if it is not resolved, approximately 60,000 landowners will be sued in Federal Court with resulting legal fees and inability to sell their property or borrow 

money on it. Obviously, this would have a further crippling effect 

on this area of South Carolina. 

To understand the commitment the State has made to this claim, 

it must be borne in mind that there have been virtually no increases in State revenue for the past two to three fiscal years-actually, that is three fiscal years, virtually no increase in State revenues. This resulted in no general pay increases for State employees 

over the last two fiscal years, other than minor bonuses. 

Additionally, the State is facing the financial burden from the 

closing of the Naval base in Charleston, as well as the State having 

to refund income taxes to Federal retirees due to a recent Federal 

Court decision. It could be $130 to $200 million in commitment 

there. Thus, the commitment of $12.5 million is a major expenditure at the State level. 

I am here today to urge the Committee to support funding for 

the Federal portion of this settlement. The reason for your support, 

once again, goes beyond any potential liability of the Federal Government in this suit, although there may be some liability on the 
227 

part of the Federal Government as has been outlined by Congressman Spratt. The primary reason for Federal support is the good that it will 

do for the Catawba Indian tribe and for the State of South Carolina. I believe that the proposed settlement is a win-win situation 

that will allow the Catawba Indian tribe to have a great potential 

for meeting the needs of its people, but at the same time allowing 

the State of South Carolina, particularly the north central portion, 

to grow and develop economically. 

Confessman Spratt, the Congressman from this area, has spearheade the effort toward reaching this settlement and I commend 

him for his efforts and I strongly support his testimony before the 

Committee today. I too have been involved in the settlement process, particularly in getting the State legislation through the Gen- eral Assembly. 

I would be glad to answer any questions from any member of the 

Committee at the appropriate time. 

Mr. RICHARDSON. Senator, just for the record, this area is in your 

Senatorial district? 

Mr. HAYES. Most of the claim area and the current reservation, 

630 acres, is all in my Senate. Most of the claim area is in my Senate district. Mr. RICHARDSON. Thank you, Senator. 

[Prepared statement of Mr. Hayes follows:] 
228 

STATEMENT 

OF 

SENATOR ROBERT W. HAYES, JR. 

South Carolina State senator from York County 

Let me begin by thanking the Committee for allowing me to 

testify today concerning the Catawba Indian Settlement. The South 

Carolina General Assembly has recently passed and our Governor has 

recently signed the state version of the Catawba Indian Settlement 

which calls for the state to pay $2,500,000.00 a year for five 

years for a total of $12,500,000.00 toward settling this claim. 

The total settlement is $50,000,000.00. This $12,500,000.00 

represents a substantial state commitment toward resolving this 

issue. The remainder of the settlement agreement also represents 

a strong state commitment toward resolving this matter in that the 

Catawba Indian Tribe was given certain autonomy over civil and 

criminal matters, as well as certain tax exemptions. This 

commitment on the part of the state goes beyond any potential 

liability that the state may have under the claim, but speaks to 

the desirability of having this claim resolved from an economic 

development standpoint for the state of South Carolina, 

particularly in the northern region of the state which is affected 

by this claim. The claim has been in litigation for over twelve 

years and could very well go on for another twelve before being 

finally resolved. A great deal of development has been lost from 

this part of South Carolina because of the cloud on title. Also, 

the claim is at the point where if it is not settled, approximately 

60,000 landowners will be sued in federal court, with the resulting 
229 

legal fees and inability to sell their property or borrow money on 

it. Obviously, this would have a further crippling affect on this 

area of South Carolina. 

To understand the commitment that the state has made toward 

this claim, it must be born in mind that there have been virtually 

no increases in state revenue for the past t'Wil fiscal years. 

This has resulted in no general pay increases for employees other 

than some minor bonuses. Additionally, the state is facing a 

financial burden from the closing of the naval base in Charleston, 

South Carolina as well as the state having to refund income taxes 

to federal retirees due to a recent federal court decision. Thus 

the commitment of $12,500,000.00 over five years is a major 

expenditure at the state level. 

I am here today to urge the committee to support funding of 

the federal portion of the settlement. The reason for your support 

once again should go beyond the potential liability of the federal 

government in this suit, although I will point out that the federal 

government is a named party in the suit and does have potential 

liability if the claim is not settled. The primary reason for 

federal support is the good that it will do for the Catawba Indian 

Tribe and for the state of South Carol ina. I believe that the 

proposed settlement is a "win-win" situation that will allow the 

Catawba Indian Tribe to have a great potential for meeting the 

nGeds of its people, while at the same time allowing the state of 

South Carol ina, particularly the northern portion, to grow and 

develop economically. 

Congressman John Spratt, Congressman from our area of South 

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230 

Carolina, has spearheaded the effort toward reaching this 

settlement, and I commend him for his efforts and strongly support 

his testimony before this committee today. I, too, have been 

involved in the settlement process, particularly in getting the 

legislation passed at the state level. I would be glad to answer 

questions of any member of this Committee. 

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Mr. RICHARDSON. The Chair recognizes Mr. Elam. 

STATEMENT OF MARK ELAM 

Mr. ELAM. Congressman, I appreciate the opportunity to be here. 

Governor Campbell wanted me to express his sincere thanks for 

you expeditiously handling this matter. Unfortunately, he was not 

able to be here because he is overseas on an economic development 

mission which he hopes to come back with good news in the near 

future, but nonetheless, he has prepared a statement which we 

would like to submit for the record and also briefly comment that 

this ongoing litigation has been before us since the early 1980s. 

Governor Riley was the first Governor when this matter came before him. He worked long and hard on trying to reach a settlement, 

along with former Attorney General, Dan Cloud. A settlement was 

not reached. This fell into Governor Campbell's lap when he was 

elected Governor. Congressman Spratt has talked to him extensively about the nature of the claim and the State of South Carolina has gotten involved in the litigation and involved in the discussions and negotiations. 

I can't tell you the length of negotiations that were carried on in 

the past four years. I can tell you that at one point, after many extensive long weeks in a local motel in York County, South Carolina, 

someone quipped that maybe we ought to call this a treaty of Holiday Inn. 

But nonetheless, we have spent an awful lot of time on this and 

we believe that one of the State's two objectives in these negotiations is, one, to expeditiously as possible resolve this conflict so 

that the next Governor, next Attorney General, or the citizens of 

South Carolina and the Catawbas do not have to live with this for 

another 150 years, but also to provide a settlement agreement that 

would not provide simply for the parties merely to co-exist, but to 

provide a framework for a longstanding relationship between the 

Catawbas and the neighboring citizens of South Carolina so we 

don't have some of the conflicts and problems that have developed 

in other parts of the country. 

That is to say, Governor Campbell, in his membership at NGA, 

has talked extensively with other governors in other parts of the 

country, talked about the kind of problems that they have had over 

the past several years, and we hope that we have got an agreement 

that will not have some of these ongoing problems that occupy the 

time and the efforts of the Catawbas and the citizens of South 

Carolina. 

We think this is an agreement in which all parties had to compromise. There were many points that the parties don't agree to, 

but overall, we think this is the kind of agreement that the State, 

the Catawbas, and the United States can live with for a long time 

to come. 

I appreciate you all allowing us to be here today, and if there are 

any questions, we would be happy to answer them. 

[Prepared statement of Hon. Carroll A. Campbell follows:] 
232 

TESTIMONY OF THE 

HONORABLE CARROLL CAMPBELL 

GOVERNOR OF THE STATE OF SOOTH CAROLINA 

BEFORE 

U.S. BOUSE OF REPRESENTATIVES 

COMMITTEE ON NATURAL RESOURCES 

SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS 

Mr. Chairman, members of the Committee, as the Governor of 

South Carolina I am pleased to submit these remarks to you. I 

very much appreciate the willingness of the Committee to schedule 

these hearings so promptly and to expeditiously consider this 

legislation which means so much to the people of South Carolina. 

Unfortunately, because the hearings were scheduled so promptly I 

was unable to rearrange my schedule to permit me to attend these 

hearings. Instead, I must be out of the country on an economic 

development mission for the State of South Carolina. 

have asked Mark Elam, Esq., my senior legal advisor to represent me at these hearings, and to convey my support for H.R. 

2399. Accompanying Mr. Elam are Kenneth Woodington, Senior 

Assistant Attorney General, and James L. Quarles III of the law 

firm of Hale and Oorr. These gentlemen have represented the State 

in the litigation and negotiations with the Catawbas. 

I strongly support H.R. 2399 and ask that you report 

favorably upon the bill and recommend it to the House for passage. 

I believe that this bill is a fair resolution to an issue that has 

inflicted and threatens to inflict further hurt and economic 

damage on the Catawbas and the citizens of South Carolina. This 
233 

bill promises to settle not only litigation which has gone on for 

more than a decade (and threatens to go on for decades longer) but 

to finally resolve a dispute that has been around for more than 

150 years. 

A. Background of the Litigation. 

I shall leave for others the ancient events that lie at the 

base of this matter . For me, it is important for the Committee to 

realize the disruptive effect that this ancient claim--pursued 

under a federal statute known as the Non-Intercourse Act, 25 USC 

Section 177--has had on the State of South Carolina, the local 

communities and the landowners effected by this lawsuit. Although 

the history of the litigation from a lawyer's perspective is 

contained in the committee report of a bill passed in the last 

Congress, Pub. L. 102-339 (August 11, 1992), 106 Stat. 869, the 

history of this litigation from my perspective and the perspective 

of other elected officials in South Carolina was an important 

ingredient in the State's decision to reach a settlement. 

As long ago as 1978, when I was a Membe r of Congress 

representing the 4th District of South Carolina, I learned that 

the Catawba Indians were asserting that they had a right to 144 

square miles encompassing parts of York and Lancaster Counties and 

the City of Rock Hill. Like many non-lawyers, I was amazed that a 

claim involving events alleged to have occurred in 1840 could 

threaten the titles to land that had been passed down in families 

for generations, and which had been bought and sold on the 

-2-
strength of attorneys' opinions of titles for more than a century 

and a half. 

For more than three years people of good faith sought to work 

out a negotiated settlement accommodating the Catawbas' desire for 

an increased reservation and a .measure of sovereignty over their 

members. In 1980 a group came close to negotiating a settlement 

which would have resolved this issue once and for all. 

That effort failed, despite the efforts of my predecessor, 

Governor Richard Riley and former Attorney General McLeod. As a 

result, the Catawbas commenced their action against 76 defendants 

who were alleged to represent all of the landholders who owned 

land in the 144 square mile area. That litigation took on a life 

of its own. 

The defendants argued that legislation passed during the 

Termination Era, the Catawba Division of Assets Act, 25 USC S 931, 

et. ~· had, among other things, made state law statutes of 

limitation apply to the Catawbas' claim, and that the passage of 

time had caused those statutes of limitation to expire so that the 

Catawbas' claims were barred. 

The district court judge appointed by then Chief Justice 

Burger to hear the case (all of the South Carolina district court 

judges had recused themselves) agreed with the defendants and dismissed the complaint. The Catawbas appealed to the United States 

Court of Appeals for the Fourth Circuit. A panel of that court 

voted two to one that the district court had erred in holding that 

state law statutes of limitations applied. The defendants asked 

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235 

the entire Fourth Circuit to reconsider that ruling and it agreed 

to do so. 

By a single vote the seven judges who considered that issue 

held that the state statutes of limitation did not apply. One 

judge, Judge Francis Murnaghan, wondered whether the litigation 

was not headed for the most unjust result of all--one in which the 

small landowner ended up, in his words, "holding the Queen of 

spades" in a mythical game of hearts because the State had relied 

on its Eleventh Amendment immunity from suit, and the federal 

government had abandoned any accountability for its conduct. 

In 1986 the United States Supreme Court agreed to hear the 

case and to review the decision of the en bane court of appeals. 

The Supreme Court held, by a six to three vote, that the statute 

of limitations did apply, and remanded the matter to the court of 

appeals to consider whether the entire claim was barred, or only a 

part. More than three years elapsed before that issue was resolved by a holding that any person who could demonstrate that he 

or she had possessed the land for ten consecutive years in the 

period between 1959, when the Catawba Act was passed, and 1980, 

when the Catawbas filed suit, was free of the claim. Anyone who 

could not make that demonstration was still subject to the claim. 

In 1990 the district court began the task of sorting out who 

among the original defendants was free of the claim and who was 

still subject to it. That task was a massive one and produced 

briefing more than 10 feet high. When the dust cleared much of 

the acreage owned by the 76 original defendants was released from 

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236 

the claim. However, the rulings made it extremely likely that 

Judge Murnaghan's prophecy would come true. The persons most 

likely to end up holding the Queen of Spades are the tens of 

thousands of small landowners--not the farm, factory, church or 

school that had owned its land for years--but the families that 

bought land in a subdivision that had changed ownership several 

times in the relevant period. 

Another ruling of the district court--that the Catawbas must 

sue every landowner within the claim area if they wanted to extend 

their claim beyond the landowners who had been sued in the 

original claim--threatened to work even greater hardship on the 

area. More than 61,000 landowners would be faced with the 

prospect of retaining a lawyer and defending their homes and 

businesses. 

Although I was willing to continue to .litigate the federal case unless an acceptable settlement could be reached, I directed Mr. Elam and Crawford Clarkson, the Chairman of the State 

Tax Commission, to seek to negotiate a resolution of this litigation. Working with Representative Spratt and State Senator Hayes 

they were ultimately successful in reaching a settlement that all 

parties could support. That settlement was reduced to a bill 

which was enacted by the General Assembly of the State of South 

Carolina and signed into law by me on June 14, 1993. 

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237 

B. The Settlement Reached is a Fair One. 

The settlement reached between the Catawba~, the State, the 

local communities and the private landowners is a fair one. Everyone involved negotiated in good faith. Everyone involved would 

like to change some portion of the settlement, but everyone involved recognizes that the settlement was the product of necessary 

compromise. 

The salient features of the settlement reflect an attempt by 

all of the parties to provide a workable framework for the 

Catawbas, · the State and the local citizenry to not only coexist, 

but to forge a new alliance. The settlement provides to the 

Catawbas sufficient funds to permit them to acquire and develop a 

land base, to undertake economic development activities and to 

provide support and assistance to their members. It provides to 

the Catawbas state tax benefits which will permit them to build 

housing for their members, and provide to their governmental entity not only attractive tax treatment, but also allow it to 

impose taxes to support its governmental functions. The 

settl ement provides to the Catawbas a measure of sovereignty and 

control over members that they have not had for decades. 

On the other hand, the settlement removes the cloud which 

hangs over the tit le of the landowners. It also insures that the 

Reservation will be developed and used in a manner compatible wi th 

the surrounding community. It provides to the Catawbas the 

ability to conduct high stakes bingo in a way no other group in 

South Carolina can conduct such hi gh stakes gaming, while at the 

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238 

same time avoiding the possibility of casino gaming that is so 

inconsistent with the public policy of our State. 

In short, this settlement is the best resolution creative 

minds, negotiating in good faith, could produce. The form and 

substance of virtually every word and phrase in it has been 

discussed and reviewed many times over. The settlement is so 

delicate that, at the time the state implementing legislation was 

signed, the Catawbas and I signed a Memorandum of Cooperation 

pledging that neither we nor anyone else who participated in the 

negotiations would seek to improve our position by lobbying to 

change any portion of the federal legislation. This legislation 

represents a settlement which cannot be reopened, and should not 

be altered because of the views of people who did not participate 

in the negotiations, and do not know the give and take necessary 

to produce this settlement. 

I would like to respond briefly to questions I anticipate may 

be asked about the settlement. 

l. The Settlement Equitably Adjusts the Competing 

Needs of the Catawbas and the State and Local 

Governments. 

Some may question this settlement because the Catawbas do not 

receive all of the "sovereignty" normally attaching to the 

reservations of federally recognized Indian tribes. Those who 

level that criticism ignore the unique circumstances under which 

this settlement was reached. 

First, this settlement provides to the Catawbas something a 

prior Congress removed from them--recognition as an Indian tribe 

-7-
239 

having a government to government relationship with the United 

States. This bill does not diminish the Catawbas' sovereignty. 

Until this bill is passed, and the Catawba Termination Act repealed, the declared federal policy is that the Catawbas are citizens of the State of South Carolina and subject to the laws of the 

State of South Carolina. This bill grants to the Catawbas a degree of sovereignty greater than they have exercised for more than 

a century and a half. 

Second, it is not possible to turn back the hands of time. 

Since the early 1800's the Catawbas have lived among the people 

who settled South Carolina. Since 1840, at least, the land they 

sought to recover in their lawsuit has been treated as a part of 

South Carolina. It has been subject to the laws of the State, has 

been patrolled by local, county and state police, and has been 

indistinguishable from any other private land in the State. 

That land is now located in an area that is part of a rapidly 

growing area of South Carolina located less than a 30-minute drive 

from the international airport at Charlotte. The City of Rock 

Hill, and the counties of York, Lancaster and Chester are areas 

which grow more urbanized with every passing year. Homes and 

subdivisions are replacing farms. What once was open space may 

soon be the home of a National Football League stadium. 

Carving from that area a reservation having the jurisdictional attributes of, for example, the Navajo Reservation, is not 

feasible. The land is now so valuable that creating a massive 

reservation would require an expenditure so great that it would 

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240 

greatly exceed the amount called for in the present settlement 

bill. The land is now held by so many different people that it is 

extremely unlikely that the Catawbas could assemble any sizable 

contiguous parcel. A reservation of noncontiguous parcels would 

produce the anomalies associated with checkerboard reservations. 

Whatever may have been the state of this land in 1760, 1763, 

or 1840 this land has been part of South Carolina for more than 

150 years. Innocent landowners, businessmen and others have 

settled on the areas surrounding the area where the new reservation will be located in the expectation that they, and the land 

around them will be governed by the laws of the State of South 

Carolina. The Catawbas do not intend to, and can not, supplant 

many of the services now provided by the local communities. It 

would be unrealistic to expect them to duplicate the school systems of York and Lancaster Counties. It would be equally unrealistic to expect that those counties can continue to provide quality schooling without some revenue from the Catawbas who continue 

to use those schools. 

Nor is this an unprecedented allocation of jurisdiction between Indians and a State. The Maine Settlement Act explicitly 

provides that the Indians shall have the jurisdiction afforded a 

municipal corporation. The Gay Head Settleme~t Act provides that 

the Gay Head Wampanoags shall be subject to all the laws, civil, 

crimi nal and regulatory, of the Commonwealth of Massachusetts. 

-9-
241 

Those settlements have been successful accommodations of the competing interests of tribes, States and local communities, and reflect the reality of life in congested areas on the East Coast of 

the United States. They provide a model to be followed, not a 

model to be discarded. 

2. The Allocation of Payments is Equitable. 

The bill provides for the State to pay $12,500,000, local 

governments and private parties to pay $5,500,000, and for the 

federal government to pay the remaining share. That allocation is 

equitable. 

The State has agreed to pay $12,500,000 despite the existence 

of a technical defense that might have permitted it to escape 

liability. The Eleventh Amendment, as recently interpreted by the 

United States Supreme Court in the Blatchford case, prohibits 

suits against a state by citizens of that state in the courts of 

the United States. Instead of availing itself of that defense, 

and insuring that Judge Murnaghan's prophecy came true, the State 

of South Carolina has appropriated a substantial sum at a time 

when the closing of the Charleston Naval Base and the recent 

decision on the taxability of federal retirement pensions threaten 

our tax base. 

The federal government has never assisted the Catawbas. At 

every turn they have rebuffed their advances. 

As early as 1782, the Catawbas complained to the continental 

Congress of encroachments on the reservation they claimed under 

the 1763 Treaty of Augusta. They sought that their lands "be so 

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242 

secured to their tribe as not to be intruded into by force, nor 

alienated even with their own consent . . The Continental 

Congress denied this request, and instead "recommended to the 

legislature of the State of South Carolina" that the State "take 

such measures for the satisfaction and security of the said tribe 

as the said legislature shall in their wisdom think fit." 

The very limited federal activity regarding the Cata~bas in 

the nineteenth century was directed not toward securing the 1763 

reservation, but toward assistance in removing the Catawbas to 

lands west of the Mississippi . 9 Stat. 252 (1848); 10 Stat. 315 

(1854). 

The federal government's nineteenth century failure to assist 

the Catawbas was based on an implicit view that the Catawbas were 

"State Indians" rather than a federal responsibility. In 1906, 

the Commissioner of Indian Affairs stated this position 

explicitly. Responding to an attorney's request in 1906 for 

assistance in pressing a cla i m to the land they sued for i n 1980. 

The Commissioner stated: 

.. I do not agre e with your conclusion 

that these peop le are no t "S ta t e I ndians" bu t 

wards of the Government . . . Any treaty 

concluded by the State wi th these Indians was 

not vo id . . solely bec ause i t ceded lands 

wi thout t he consent of the United States, such 

consent not being nece ssar y as t o lands in 

wh ich the General Government did not possess 

th e ultima t e fee. 

A second request in 1909 met wi th a similar response. 

The c orrespondence of ot her federal officials in the first 

few decades of the t we ntieth century contains man y similar 

-11-
U3 

disclaimers of federal responsibility for the Catawbas. Even when 

the government did finally act to provide some assistance in 1943, 

the assistance was almost entirely State-funded. In fact the 

State bought the 3,434 acre reservation which was the core of the 

limited federal activity from 1943 to 1959. But even this limited 

federal effort was short-lived, ending in 1959 with the passage of 

the Catawba termination act. 

The mere assertion of the Catawba claim has caused tens of 

thousands of titles in South Carolina to be clouded. The 

assertion of that claim is the result of the application of the 

Non-Intercourse Act to eastern Indians, despite the fact that the 

policy behind that act was either explicitly repudiated or 

completely ignored for almost two centuries by the executive 

branch and was revived by the federal judiciary only in the 

1970's. While South Carolina has never admitted that the United 

States was trustee for the Catawbas, the historical record shows 

that if such a trust relationship existed in theory, it was never 

put into practice by those charged with its enforcement. Had the 

United States in fact recognized and maintained a trust 

relationship with the Catawbas in the nineteenth century, the 1840 

Treaty would either have been approved, in which case there would 

be no claim today, or disapproved, in which case there still would 

be no claim. 

For these reasons, the cause of this claim which clouds the 

titles of tens of thousands of its landowners is either federal 

inaction in the face of a trust relationship, or federal action in 

-12-
244 

creating the possibility that such a trust relationship exists 

when in fact it does not. Either way, the question is one whose 

answer is far too costly to obtain, both for the innocent 

landowners and the Catawbas as well. The proposed settl~ment 

fairly allocates the financial responsibility for the historical 

oversight or error which has given rise to this claim. 

Mr. Chairman, I urge you to report this bill favorably and 

recommend its passage. Congress must act promptly to avoid the 

disruption that 60,000 lawsuits would cause. 

-13-
245 

Mr. RICHARDSON. Mr. Elam, the gentleman to your far left, is 

that Mr. Woodington? 

Mr. ELAM. No. That it'! Mr. Miller. 

Mr. BLUE. That is Mr. Don Miller, our attorney. 

Mr. RICHARDSON. So that basically concludes those that are making statements? 

Mr. ELAM. Yes, sir. 

Mr. RICHARDSON. Let me start out by asking some informational 

questions. First to you, Mr. Elam. 

Did anyone from the United States Government agree to pay $32 

million for the settlement? 

Mr. ELAM. Yes, sir, Mr. Chairman. During the last year, the Governor and Congressman Spratt and several Members of the congressional and legislative delegations have had discussions. We 

have met on a couple of occasions with former Secretary Lujan. 

Mr. RICHARDSON. Okay. Was the calculation based on a formula 

that was basically a consensus? 

Mr. ELAM. Yes, sir. 

Mr. RICHARDSON. But not based on any years, although I would 

like the analogy of my friend from Hawaii, but it was basically a 

consensus agreement? 

Mr. ELAM. Yes, sir. 

Mr. RICHARDSON. Under the bill, the Secretary of the Interior 

has to collect $18 million from South Carolina citizens. How would 

that work? I know the Department of the Interior isn't here, but 

was anything procedural set up about that? 

Mr. ELAM. What we have done, we have adopted separate legislation that-beyond the agreement that for this year appropriates 

$2.5 million, which is held in an account by the Treasurer of the 

State of South Carolina until such time as the final agreement is 

reached or final legislation has been adopted and ratified, signed 

by the President, at which time the State of South Carolina will 

issue a check to the Secretary of the Interior and he will hold it 

for the purposesMr. RICHARDSON. So it will be basically a simple transaction? 

Mr. ELAM. Yes, sir. 

Mr. RICHARDSON. You won't have the Department of the Interior 

being a collection agency? 

Mr. ELAM. No, sir. We hope not. 

Mr. RICHARDSON. Now, the Committee-and my good friend and 

colleague knows this, is still waiting to hear officially from the Interior Department, and in a way, I think I am pleased that they 

are not here because I believe they are now seriously studying 

their response at the urging of several of us that would like to resolve this matter. It is better to have support from the Department 

than a non-position. 

Let me deal with an issue that I think will be coming up and 

that is, is there any flexibility on the part of the State or the tribe 

in the issue of jurisdiction over federally recognized tribes? In other 

words, under this bill, you as a State are going to have more jurisdiction over a federally recognized tribe than any other State in the 

Union and we in this Committee, have to deal with that. Is there 

any flexibility there on either side? 
246 

Mr. ELAM. Mr. Chairman, we feel that this agreement is very 

much similar in nature to other tribes, eastern Indian tribes. We 

feel our situation is much different than perhaps tribes in the western part of the United States. We feel this is a long, hard-fought 

agreement and one of the problems that we have with the State of 

South Carolina was selling this to the entire State. 

South Carolina, like every part of the United States, has its regional influences, and to sell this legislation or the State legislation 

to people in Charleston, to people in Greenville, South Carolina, 

who had no financial interest, not the pressure that the people in 

York County had, we had to make certain agreements and commitments that we think we have to live up to. 

So quite frankly, I do not think that we have any flexibility with 

respect to that issue. 

Mr. RICHARDSON. Now, Chief, I am very pleased what you told 

me, that you have support from the National Congress of American 

Indians. They endorsed the resolution? 

Mr. BLUE. Yes, sir. 

Mr. RICHARDSON. I take it that the Catawba tribe supports this, 

too. 

Mr. BLUE. Yes. Mr. RICHARDSON. Through your election and referendum process? 

Mr. BLUE. Several ways we know that to be true. At one meeting, we had a vote and somebody-correct me if I am wrong on the 

numbers, but I think it was 289 to 42 to accept this proposal as 

it was. 

Mr. RICHARDSON. Do you think this is the best you could get out 

of the State? 

Mr. BLUE. Yes, sir, I really d6. We-as has already been alluded 

to many times, we worked hard and long hours into the night. 

There were many issues that we would like to have had differently, but if we had pursued those too vigorously, then we could have 

probably lost the whole thing. So we feel like-and I have to say this, as Mr. Elam talked about 

the State of South Carolina and his constituents and them having 

to be satisfied, we are in a unique position in the Catawbas. We 

are not like the western tribes. We are right in the middle of this 

economic corridor in York County and our people have never had 

a government setup where we had to run our own courts, whether 

they be criminal or civil. 

But we have enough, I think, in the package that if some time 

in the future we want to establish a civil court, it says that we can, 

when we get to the position that we are able to handle that. 

As far as civil is concerned, that would be more of a detriment 

to my people right now, in my opinion. The people felt that way 

as well. Because it would have too much of a burden to try and institute that law on the reservation with the small government we 

have at the present time. 

Mr. RICHARDSON. You would be appealing though, Chief, into the 

State court system. Mr. BLUE. That is my understanding, yes, in part. Let me let 

Don Miller answer that for you. Mr. RICHARDSON. Mr. Miller. 

Mr. MILLER. Thank you, Congressman Richardson. 
247 

Some of the appeals would go into the State court system, but 

not all of them. The tribe has exclusive jurisdiction if it chooses to 

exercise it in certain areas related to internal tribal matters and 

the conduct of-well, the conduct of business activities on the reservation. They have initial or original jurisdiction. And then the 

appeals would go into the State courts. But you earlier characterized the amount of jurisdiction that the 

tribe would have through this legislation as less than any other 

tribe in the country and that the State would have greater influence than any other State. 

And while I agree that the jurisdiction of the Catawba tribe 

under this agreement would be down on the low end of the spectrum, if you will, it clearly possesses greater jurisdiction under this 

agreement than a number of other eastern Indian tribes have received under their settlements. 

I think it is worthy of note that the Maine-the tribes in Maine, 

the Passamaquoddys and the Penobscots, when they settled their 

non-Intercourse Land Act claim in 1980, they had been federally 

recognized tribes for some four years, and they were receiving full 

Federal services, but the agreement that they made to settle their 

land claim provided for greater State jurisdiction by the State of 

Maine than we have gotten in this agreement. And there is no question that it was a hard fought issue and we 

conceded quite a lot, but those concessions are concessions that are 

made with the particular circumstances of this tribe in mind, the 

parties' assessment of the strength of their litigation position, the 

weaknesses of their litigation position, the prospect of another 25 

years of litigation as opposed to being able to bring it to a close 

now, what price do we pay for continuing a struggle such as this. 

So I think the important thing to emphasize is that the tribe, for 

their circumstances, they are in a suburban area with not--fewer 

traditions of strong tribal institutions such as courts and police 

forces and so forth than most other tribes have. They find this satisfactory, and I think that it is most-well, the way to conceive of 

this agreement, I think, that makes the most sense is that this legislation embodies a jurisdictional compact between the tribe and 

the State which is broader than most jurisdictional compacts between tribes and states. 

But it is not at all uncommon for tribes and states, particularly 

in the last five or seven years, to enter into agreements on taxation. I mean, many Indian tribes around the country are finding 

that it is not to their advantage--

Mr. RICHARDSON. I think it is particularly significant that you 

are here because your organization is renowned for advocating Indian rights across the country. So, what you are basically saying 

is this is a unique situation. This is a negotiation that dealt with 

the issues that I am raising, and in your view, you are very strongly supporting this legislation; is that correct, Mr. Miller? 

Mr. MILLER. Absolutely. Well, I am-I don't have an independent 

position on this. This is my client's position. I am their lawyer and 

the Native American Rights Fund serves in their capacity as their 

lawyer. And, of course, we have had to examine the question of, do 

we-where do our responsibilities lie, to some broad Indian policy 
248 

generally or to a client who has a particular need and wants a particular result? And we are their attorneys. 

Mr. RICHARDSON. Now, before I recognize my colleague from Hawaii, then my colleague from South Carolina, let me ask Counsel 

Elam a question. 

What is the significance of the September deadline? Chairman 

Spratt has urged us to move expeditiously. Take us through the 

process. 

Mr. ELAM. October. 

Mr. BLUE. October 1, yes. Mr. RICHARDSON. October 1? Mr. Elam. 

Mr. ELAM. Yes, sir. I may not be the right person to answer this. 

Mr. MILLER. Would you like some props? 

Mr. ELAM. All right. 

Mr. RICHARDSON. Maybe the Senator can answer this. It may be 

a political answer that I am basically looking for. Mr. HAYES. No, sir. I think it is more of a legal statute of limitations question that the Congress, by a bill, I believe, Congressman 

Spratt can clarify, has extended the statute of limitations by one 

year to stop the filing of 60,000 lawsuits. That year runs out in October and that is kind of the deadline we are operating under. They 

may want to explain that in more detail. 

Mr. RICHARDSON. Mr. Miller, are those papers there for a reason? 

Mr. MILLER. If I might have permission to, if you would like to 

take a closer look at these, I would be glad to bring them up. This 

first document--

Mr. RICHARDSON. Are those the 60,000 complaints? 

Mr. MILLER. Yes. This is the lis pendens with 61,767 defendants 

claimed by name. This is one copy of the complaint and this is one 

copy of the summons. These are the documents that would-well, 

they are in storage right now. These will be filed in the Federal 

District Court if we weren't successful in beating that statute of 

limitations. These-! brought some samples. 

In addition to filing these originals in the court, each of the 

61,767 occupants of the claim area would receive in the mail an individualized summons, complaint, lis pendens, and return envelope 

for service by mail. These, too, are in storage. 

If the Committee were to examine these, they would fmd that 

they are complete with a filing stamp from the clerk of the court, 

the seal of the court, the Court's signature and the case number 

in the case, Catawba Indian Tribe v. City of Rock Hill, and this is 

what we are seeking to avoid. It is our desperate hope that we will 

be in a position to recycle all of this soon. 

Mr. RICHARDSON. Let the record show that the Chair and members of the Subcommittee saw the 60,000 complaints. Let me now 

turn to my colleague from Hawaii. 

Mr. ABERCROMBIE. I have no questions. 

Mr. RICHARDSON. The gentleman from South Carolina. 

Mr. SPRATT. Mr. Chairman, let me thank you on behalf of all of 

us, my constituents and the people here in the room today, for not 

just holding this hearing and holding it expeditiously, but for seriously looking into the issues that are before us and showing genuine concern for this problem. 

I don't have any further statement to make. 
249 

Mr. ABERCROMBIE. Mr. Chairman, I do have a very brief comment then. I don't-didn't mean for any of you gentlemen to think 

that I was indifferent by saying I had no questions. All my questions have been answered. I will make a comment for the record. 

Mr. Elam, Senator, you speaking on behalf of the Governor, Mr. 

Elam, Senator, and Chief, I think you have made a remarkable 

statement here today that I hope can be emulated in other contexts. I realize that the situations may not be analogous either in 

the west or other areas, but I think the context is parallel. 

That is to say, we live in the world of today. We all come from 

someplace. We all have antecedents, we have roots, we have the 

hunger of memory, if you will, for what might have been, what 

should have been, what was and maybe shouldn't have been that 

way, but we all know that we are responsible for what happens 

today. And as a result of what we do today, that forms the basis 

for what will happen tomorrow and those for whom we are responsible. 

And I believe that the honorable way in which this has been conducted, the obviously difficult, complicated and detailed situation 

that had to be resolved, does stand as a beacon to what people in 

good faith and goodwill can accomplish. And to the degree that this 

agreement will not in history necessarily be applicable to everyone 

else facing a similar crisis, while it may not be particularly applicable, nonetheless, it shows the way things can be done when people 

put their minds to it. 

And I hope, sincerely hope, that this same attitude can prevail 

in the numerous other cases that present themselves to this Committee as a whole and to this Subcommittee in particular. I congratulate you and the State once again. For the record, you have 

my support. 

Mr. RICHARDSON. Chief, let me ask you two more questions before we conclude the hearing. 

Mr. BLUE. Yes, sir. 

Mr. RICHARDSON. The concept of health cards under the bill, 

what is the reason for those? You get IHS benefits; is that correct? 

Mr. BLUE. Under the Restoration Act we would, yes, 

sir. 

Mr. RICHARDSON. What are these health cards? 

Mr. BLUE. The reason for that mainly is that we have a lot of 

Catawba people who live in other states who have married. We 

have many out West, and they would not be able to get health care 

under this provision unless they went to-they could go to a local 

Indian Health Service and probably get it, but there may be circumstances where they couldn't. If we could get this card, it would 

be easier for our people to get the health care that they desire and 

need. 

Mr. RICHARDSON. Did the Indian Health Service advise you on 

that provision? 

Mr. BLUE. We went to them and had a nice meeting. They gave 

us all the different packages of care that we could implement on 

the reservation. They said as far as this card was concerned, they 

didn't know if we could get it or not, but if we did, they would do 

what they had to do to implement it. They said go for it. That was 

their feelings about. 
250 

It is the same thing in Nashville. We had some people going to 

Nashville to talk to the Indian Health Service people who will be 

handling our area and they told us the same, gave us a good rundown. Said if you can get the card, we wil! do what we can to implement it. 

Mr. RICHARDSON. Mr. Miller, did you want to add something? 

Mr. MILLER. Yes, if I might. The Catawba tribe is a small tribe 

and it is located in an urban, suburban area where there are quite 

good existing health care facilities. And om thought when we drafted this was that it might not be necessary for the Federal Government to come in and build a health care clinic and staff it with doctors when there were such good facilities available locally. 

We have since talked to IHS and it might be the most economical 

and sensible way, in fact, to build a small clinic there, but we are 

looking at that. Our goa! is to provide absolutely the best health 

care that we can for the members and we thought that the most 

efficient way would be to use it, use the existing facilities that are 

already in place in the area and simply find a way for them to be 

able to use those rather than start from scratch. 

Mr. RICHARDSON. Now, Mr. Miller, let me ask you. Can the State 

tax the tribe and its members and does the Gaming Act apply to 

this agreement? 

Mr. MILLER. The State can tax the members of the tribe but not 

the tribe itself. Tribal income is exempt from State and Federal 

taxes. Tribal members' income-if they don't perform a tribal governmental function, if they aren't performing a--

Mr. RICHARDSON. I meant under the agreement. In other words, 

assuming this legislation passes. Mr. MILLER. That is what I am describing. If you have a tribal 

member working for the tribe and performing a govemmental function, his income, her income will not be taxed for 99 years by the 

State. Other Indians and non-Indians on the reservation, their income would be taxed. The property or buildings and improvements 

on the reservation owned by the tribe and tribal members are exempt from State taxation. Mr. RICHARDSON. What about gaming? 

Mr. MILLER. Under the agreement, the Indian Gaming Regulatory Act would not apply. Again, this is a-what we view as a 

gaming-! mean, part of this is a gaming compact. We have agreed 

that State law generally would be applicable to any gaming activities with the exception that the tribe would be entitled to a special 

bingo license, which nobody else in the State had. 

I mean, it was invented for this case, and the tribe could conduct 

high stakes bingo six days a week with a $100,000 a game limit. 

Mr. RICHARDSON. And the State gets 10 percent, right? 

Mr. MILLER. And the State would get 10 percent, but the income 

of the tribe otherwise off of gaming would be exempt from State 

and Federal taxes. And the State has made a concession that the 

tribe can decrease from 60 percent to 50 percent the amount, which 

is-of gross, which is required to be paid in prizes. 

Mr. RICHARDSON. Senator Hayes, would you say that this agreement has the support of the South Carolina legislature? 

Mr. HAYEs. Yes, sir, it does. 
251 

Mr. RICHARDSON. The Governor, who we did learn had another 

commitment, couldn't be here but I know he feels very strongly 

about this. Mr. Elam, is that accurate? 

Mr. ELAM. Yes, Mr. Congressman. 

Mr. RICHARDSON. Let me conclude this hearing by stating that 

the Committee intends to move this bill. I think that the Chair, 

and obviously members of our Subcommittee, will support this legislation. It is my view that the tribe deserves restoration. In fact, 

that is among the last of the terminated tribes to be restored. 

Now, what I would like to do is, I have directed the Native American Subcommittee staff to meet with the Interior Department next 

week to get a departmental position on the bill and to work out, 

perhaps, any differences that are needed. I would ask Chairman 

Spratt to make his staff available and, Chief, your attorneys and 

the State, also. 

We want to move this bill, hopefully, to preserve your October 

1st deadline and, as you know, we have a complex legislative schedule. We will also work with the other body to see how we can 

expedite this, and I would just ask for a little flexibility. 

I think it makes eminent sense-I know that it has been hard 

fought negotiations, but I would prefer to move with the Department of the Interior's support rather than opposition, and I don't 

know what they will say. 

So with that, I want to thank all the witnesses. 

Chairman Spratt, do you want to say anything in conclusion? 

Mr. SPRATT. Except to thank you very much. If you would like 

to look at this map on the way out, it shows where the tribe is located. I can show you that and it is in close proximity to the City of Rock Hill. That is why we call it a suburb of the city. 

Thank you very much, Mr. Chairman. 

Mr. RICHARDSON. The hearing is officially adjourned. [Whereupon, at 3:10 p.m., the Subcommittee was adjourned.] 

APPENDIX 

JULY 2, 1993 

ADDITIONAL MATERIAL SUBMITTED FOR THE HEARING RECORD 

STATEMENT OF GAIASHKIBOS, PRESIDENT, NATIONAL CONGRESS OF AMERICAN 

INDIANS, BEFORE THE SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS, UNITED 

STATES HOUSE OF REPRESENTATIVES, ON H.R. 2399, THE "CATAWBA INDIAN 

TRIBE OF SOUTH CAROLINA LAND CLAIMS SETTLEMENT ACT OF 1993" 

July 2, 1993 

For nearly 150 years, the Catawba Indian Tribe of South Carolina has been denied the 

possession and benefits of land that was legally theirs. The National Congress of American 

Indians (NCAI) fully supports correction of this long-standing issue by enactment of H.R.2399, 

the "Catawba Indian Tribe of South Carolina Land Claims Settlement Act of 1993" . The 

Committee has been provided with a copy of the NCAI resolution adopted by its Executive 

Committee during its Mid-Year Meeting in Green Bay, Wisconsin, June 27th through June 30th, 

of this year, which endorses the agreement in principle negotiated by the Tribe. 

By treaty in 1763, the Catawba Tribe was promised protection for its lands, a promise that was 

broken by the State of South Carolina in 1840, as it sought to extinguish Catawba Tribe title to 

the lands remaining to it. However, Federal law since 1790 has provided that only the United 

States Congress may extinguish Indian title to land. This conflict initiated the many years of 

legal struggle that can now be resolved with enactment of H.R. 2399. 

During the 1950s, the Bureau of Indian Affairs mounted a campaign to terminate the Catawba 

Tribe. The Tribe refused to consent to its termination unless the United States assured the Tribe 

that its land claim would be protected; in fact, the Tribe's resolution consenting to termination 

was conditioned upon this assurance. However, when Congress enacted the termination 

legislation, the Bureau of indian Affairs failed to assure that language protecting the Tribe's land 

claim was incorporated into the legislation. 

Whi.Ie the Federal government may argue against provisions of this legislation requiring it to 

assume its part of the settlement payment, stating that the State of South Carolina's portion of 

the payment is too small, it must be remembered that these provisions were the best possible 

resolution the Catawba Tribe, acting without Federal support, was able to obtain with the State. 

Since orchestrating the Tribe's termination, the Federal government has not worked to fulfill its 

obligation to assist the Catawba Tribe resolve that land claim, and in fact has conducted itself 

in ways that have actually undermined the Tribe's land claim. Therefore, NCAI believes that 

the provisions of the legislation which allocate the Federal and State/local contributions are very 

reasonable. 

NCAI believes that Congress' ratification of the Catawba settlement, as negotiated by the Tribe, 

is consistent with the tenets of contemporary Indian policy in that the legislation will resolve 

the historic Catawba Tribe land claim and restore Federal recognition. 

NCAl asks the Congress to recognize the urgency of enactment of H.R. 2399, not only to bring 

to a conclusion the century and a half of loss suffered by the Catawba people, but to protect the 

(253) 
tribe from an approaching statute of limitations on their land claim. Failure to enact H.R. 2399 

will require the Catawba Tribe to sue tens of thousands of individual non-Indian persons who 

currently claim ownership of the disputed lands. 

On behalf of the 119 tribes we represent, the National Congress of American Indians joins the 

Catawba Indian Tribe, the South Carolina Congressional delegation, the state governor and local 

governments in urging strong suppon for this historic legislation. 
255 

COMMENTS FOR THE RECORD REGARDING 

H.R. 2399 and S. 1156, 

A BILL TO SETTLE THE ANCIENT CATAWBA LAND CLAIM 

AND TO 

RESTORE THE FEDERAL TRUST RELATIONSHIP 

Submitted on July 26, 1993, 

by 

Thomas J. Blumer, Ph.D. 

Historian, Catawba Restoration of Justice Project 

My friendship with the Catawba began in 1970, during my early days as a 

doctoral candidate at the University of South Carolina. My professional relationship 

with the Catawba dates from 1976 when I assisted a group of 21 Catawba potters in 

founding the Catawba Potters' Association. Since 1976, I have worked on a large 

number of Catawba projects, most of an historical nature. This work has been done 

· lvr iire Catawoa Executive Committee, the-Tribai Council, the Catawba Preservation 

of Culture Project, the Catawba Potters' Association, the Native American Rights 

Fund, individual tribal members and, most recently, I have served as historian for the 

Catawba Restoration of Justice Project. The results of my work include the 

Bibliography of the Catawba (1987), a book-length reference work. It will, in 

time, enable Catawba studies to make great advances and should serve the Catawba 

well in their efforts to reclaim their rightful place in history. My long-awaited 

Survival of a Folk Tradition : Catawba Pottery is in its second draft. It tells 

the story of Catawba pottery from the standpoint of the potters themselves. I have 

published numerous articles .in a wide variety of regional and national sources. I 

have lectured on Catawba issues throughout the United States. My greatest area 
256 

of interest is the pottery tradition, and my historical period of concentration is from 

1840 to the present. 

I would like to qualify my support for the current settlement legislation. I 

support the economic package, but I find the jurisdictional part of the agreement 

totally lacking in equity as far as the Catawba are concerned. I realize that the 

Catawba are at yet another crossroads in their long and painful relationship with 

both South Carolina and the United States. Perhaps at no time since 1760 have the 

Catawba been in more need of the protection of a powerful central government: the 

Crown in 1760, and the United States Congress in 1993. 

I am writing this paper with very mixed feelings about H.R. 2399/S. 1156. On 

the one hand, I am happy to see that this smoldering issue is being laid to rest. On 

the other hand, I worry about the nearly complete destruction of jurisdictional rights 

that belong to the Catawba. As I contemplate the settlement, I recall all the many 

Catawba Indians who worked without funds or legal counsel to see the resolution of 

this matter. There are so many who would have rejoiced to be part of the final 

settlement. But I write with the full knowledge that Lady Justice in South Carolina, 

particularly in regard to Indian affairs; is not blind. Lady Justice has 20/20 vision 

when it comes to the Catawba Indians. 

For nearly two well-documented centuries, South Carolina has dreamed of the 

extinction of the Catawba. This legislation, if the jurisdictional issues are not 

made more equitable for the Catawba, may very well be the death knell for this 

small but historically important group of Indians. 

I have monitored all the many episodes that constitute the history of the 

Catawba land suit which brings H.R. 2399/S. 1156 to its current status. All too often 

the negotiating table tilted away from Catawba interests and favored those large 

2 
257 

landowners affected by the suit. With great continuity, the chief negotiators were 

men who were part of the establishment in South Carolina. Many of them had a clear 

conflict of interest, and this conflict shows in the jurisdictional parts of the South 

Carolina legislation which forms the basis for H.R. 2399/S. 1156. 

If time would permit, but it does not, many examples of the impropriety of the 

negotiations could be brought to light. However, perhaps it will help to point out 

that at one point in 1979 the Catawba were very close to a settlement. This 

settlement promised to be far more advantageous to the United States, the party who 

is really paying the bills here. Reportedly, however, one solitary land owner in the 

claim area prevented a settlement. If this is true, and I think it is, this man 

singlehandedly caused years of needless additional negotiations which are being 

brought to a close today, over ten years after his negative influence bore fruit. 

This factor and many others, including the exclusion of the BIA, Eastern 

Office, from the negotiating table were not brought out in either the House or the 

Senate hearings. Instead, during the hearings, the BIA took a bashing for its socalled negligence. However, no one mentioned the historical fact that the 1959 

termination of the Catawba was engineered by a South Carolina legislator by the 

name of Robert Hemphill. Although the BIA clearly played a major role in the 

process, Hemphill was the genius behind a major effort to legislate the extinction of 

the Catawba. Hemphill made certain that the ancient Catawba land claim was 

omitted from the literature of the period. 

It is also worthy of note that not one Catawba of the traditionalist faction was 

invited to testify on either July 2 or July 22. Perhaps their absence was caused by 

Governor Campbell's "Memorandum of Cooperation." He states in his testimony 

presented on July 2, 1993: 

3 
258 

The settlement is so delicate that, at the time the state implementing 

legislation was signed, the Catawba and I signed a Memorandum of 

Cooperation pledging that neither we nor anyone else who participated 

in the negotiations would seek to improve our position by lobbying to 

change any portion of the federal legislation. 

This device bothers me. The result, on July 22 the hearing room empty of 

joyous Catawba. Instead, the hearing room, this was true for both hearings, was 

dominated by smiling lawyers and legislators. Will Lady Justice retain her 20/20 

vision? At the same time, I wonder, what would South Carolina gain by suppressing 

the inalienable jurisdictional rights of a mere 1,400 Indians? How long would it take 

the Catawba to initiate all aspects of full jurisdiction? The Indians would obviously 

have to change their organizational structure and go through a training period. The 

Poarch Band Creek have been highly successful in this regard. Why not the 

Catawba? On several occasions those who were part of the negotiations have told 

me: "the Catawba can always go back to the U.S. Congress and obtain more 

jurisdiction. • I don't think this is the way things work. I also wonder if the Catawba 

have been told this very same thing? Why make an agreement which is clearly going 

to be in need of changes before the ink is dry? How much would these changes cost 

the Catawba; are any changes possible once H.R. 2399/S. 1156 become law? 

Other questions haunt me. Who has the most to lose here? Who is paying the 

bill? Who is writing what amounts to a "Treaty"? Who wrote the Treaty of Pine Tree 

Hill in 1760, the Crown or South Carolina? Who is calling the shots in 1993? 

In spite of feelings grounded in knowledge of the historical situation the 

Catawba face in South Carolina, I can see the great benefits that will come to the 

Catawba as they implement the economic advantages that H.R. 2399/S. 1156 will 

give the Tribe. I feel certain the benefits of this economic package blinded many 

4 
259 

Catawba to the importance of jurisdictional issues. Like the Catawba, I remain 

supportive of this legislation because of the economic package. But jurisdiction will 

play a role in the fulfillment of the economic package to the best advantage of a 

people who have been economically deprived for over 230 years. 

Much was made of the damage the Catawba Claim has brought to that part of 

South Carolina which in reality is part of suburban Charlotte, North Carolina. 

Perhaps there was some economic stagnation; however, in visiting York County 

perhaps 5 or 6 times per year (1977-1993) on Catawba business, I have observed 

nothing but progress: new malls, new restaurants, new subdivisions. Few other parts 

of South Carolina can boast similar advances. Yet, where do the Catawba fit in all 

this progress? As a result of a long negotiation process, the Catawba remain at the 

end of the list of those American Indian tribes who were terminated in the 1950s 

and 1960s. No one has calculated what kind of economic damage was done to the 

Catawba from 1973 to 1993. It is easy to assume that during much of this period the 

Catawba could have enjoyed full federal recognition. I think it is quite clear who 

needs protection here. South Carolina has nothing to fear concerning 1,400 Indians, 

but the Catawba clearly need the United States' mantle. This protection has been 

withheld too long. This protection would be accorded the Catawba through those 

jurisdictional issues that were purposely omitted from H.R. 2399/S. 1156 by 

negotiators who came to the table from Columbia, South Carolina and the 

landowners in the claim area. 

One could easily make an interesting case for the morality of the long delay 

caused by the establishment in South Carolina. Yet at the end of a long tortuous 

process, they cry economic stagnation. I was not proud to see a letter and its 

accompanying report I produced in April 1992 flaunted as an example of how 

generous South Carolina has been since 1840. This paper was researched to show 

just how much the Catawba had suffered under the South Carolina mantle 

5 
260 

(Appendix I. If these two documents are read carefully, the picture presented is not 

complementary to the State. 

I support this legislation only if the federal mantle covers the Catawba in the 

most beneficial way possible. It must be done with a full realization of the dangers 

which the Catawba face on a daily basis. Working in the face of a very real deadline, 

I will only touch upon 4 issues that illustrate the reality of Catawba life in South 

Carolina: 

The Tribal Roll 

The keeping of a tribal membership roll is a very difficult internal process 

which all Indian tribes handle on their own. As soon as South Carolina decided it 

was in her best interests to negotiate a settlement in good faith, the membership 

issue came to the surface. This happened in 1992 when the draft legislation now 

before the U.S. Congress as H.R. 2399/S.1156 was in its first negotiation stages. As 

part of the Catawba extinction syndrome, South Carolina insisted on a blood 

quotient which might soon end all State services to the Catawba. When the Catawba 

protested on the technical grounds of keeping a tribal roll accurate and up-do-date, 

the 99-year tax device was inserted into the settlement document. The first part of 

this episode strikes me as an attempt to meddle in Catawba affairs, an old issue in 

South Carolina. The second part strikes me as a device to begin, at the end of a 

century, a new push for the extinction of the Catawba. Should H.R. 2399/S. 1156 

prepare for the extinction of the Catawba or protect their future as an Indian nation? 

Is Justice blind here or does Justice have 20/20 vision? 

6 
261 

Come-See-Me 

For many years now, the City of Rock Hill has celebrated a local spring festival 

in April. The event is a low-key celebration designed to show outsiders the bright 

side of Rock Hill and to bring the community together for some fun. I believe it was 

in April 1990 when a local group appeared in the Come-See-Me parade as Indians 

dressed in trash cans. The effect on those Catawba who witnessed this shameful 

display or read about it in The H e rald was one of devastation. They knew the 

meaning of the word trash. They knew who the make-believe Indians in the trash 

cans portrayed. Protests were made . The organizer of the event shrugged the 

Catawba away as poor sports. No official apology was issued by anyone . Those in 

Columbia who monitor such grievous insults remained silent. At the time, I 

wondered what would have happened had the men and women dressed in trash cans 

appeared as black minstrels. Justice in South Carolina has 20/20 vision. Will H.R. 

2399/ S. 1156, with its weak approach to jurisdictional issues, provide for the 

protection of Catawba civil rights? I think Justice in South Carolina will retain her 

20/20 vision if this legislation is not changed. 

Indian Fellowship Program 

Just a few months ago (April 1993), a young Catawba Indian who was 

graduating from high school applied for an Indian Fellowship. Only Indians who are 

members of federal or state tribes are eligible. The result was a cruel refusal which 

took the young man through a bureaucratic ping-pong game. According to the 

Governor of South Carolina, the Catawba are not "State Indians" (Appendix I I). 

This response is highly questionable historically; however, the result for anyone 

caught in such political games is usually a frustrating failure . This was the 

lamentable result for this young man. Along a similar line, for many years South 

7 
262 

Carolina has held up Title 4, Part A, Indian Education Program funds that by right 

belong to the Catawba. What kind of economic damage has been done to the 

Catawba through such calculated official responses? It is one thing to do battle with 

adults and quite another to hurt the young. Will H.R. 2399/S. 1156, with its weak 

approach to jurisdictional issues, allow such episodes to continue? 

Catawba Clay Holes 

Archaeologists claim that some of the oldest pottery excavated anywhere in 

the continental United States is found in Coastal Carolina. Estimates of antiquity 

go back as far as 4,500 years before the present. This dates the history of pottery 

making in South Carolina well before that of the Southwest. It has long been known 

that the Catawba pottery tradition has been practiced in an unbroken line of descent 

from the time of contact with Europeans to the present. The Catawba tradition is 

the only such cultural treasure to have survived in the eastern part of the United 

States. As such, the Catawba potters, about 50 of them, form a priceless cultural 

heritage for all America. 

Also, archaeologists continue to study the relation between contemporary 

Catawba pottery and ancient pottery excavated in the Catawba Cultural Zone, much 

if not all of South Carolina and a large portion of central North Carolina. There is 

great continuity between contemporary Catawba vessels and those excavated from 

ancient sites. These parallels include the kind of paste used, construction 

techniques, shape, and incised markings. In the ncar future, archaeologists will be 

·able to publish a complete line of descent from the earliest Coastal Carolina pottery, 

dated 2,500 B.C., through to contemporary Catawba pottery. 

8 
263 

What a cultural treasure South Carolina has in the Catawba. The story of the 

survival of this tradition is touched by many miracles. Yet, the level of appreciation 

for Indian culture is somewhat lacking in official South Carolina circles. 

In 1979 Catawba hearings were held in the U.S. Congress. In the published 

record entitled Settlement of the Catawba Indian Land Claims, Hearing 

before the Committee on Interior and Insular Affairs (Serial No. 96-17), I 

published a short piece entitled "Two Points Concerning a Just Settlement of the 

Catawba Indian Land Suit of 1977" (Appendix II!). In it I expressed my wellfounded fear that the Catawba would be denied access to their traditional clay 

resources located on contested land in Lancaster County. At the time, the TriCounty Landowners Association, partially funded by the State, was attempting to 

influence the settlement negotiations through the owner of this crucial Catawba 

resource. Only Catawbas of the Cash Only faction were being allowed to dig clay. 

I knew it was only a matter of time before all Catawbas would be cut off from this 

resource. 

The axe fell in May of 1990. On May 12th, the Native American Rights Fund 

attempted to protect this resource legally through depositions taken from two potters 

(Appendix IV). In actuality the depositions tell only a fraction of the story. The 

Catawba have dug clay in Nisbet Bottoms for many centuries, probably long before 

the 1760 Treaty of Pine Tree Hill was negotiated. 

I was informed of this cultural tragedy 7 days later and began immediately to 

contact those I thought might be able to bring some sense of justice and reason to the 

matter of great cultural importance. I spoke to key members of the Catawba 

Executive Committee, several of the senior Catawba potters and Don Miller of 

NARF. The list of those contacted grew to include members of the U.S. Congress, 

academics in both North and South Carolina, local historians and BIA officials who 

9 
I felt might be able to influence the landowner or perhaps arrange a political 

solution while negotiations on a settlement continued. In August, I wrote Governor 

Campbell of South Carolina (Appendix V). 

The response from the Governor's Office was totally lacking in appreciation 

for an issue of great consequences to culture in South Carolina: 

It is indeed unfortunate that the citizens of South Carolina must 

continue to live with the issue, however, until the land claim dispute 

reaches a full conclusion it is likely that such situations will persist. I 

certainly can understand those landowners reluctance to grant certain 

privileges to the Catawbas (Appendix VI). 

In reality, one short telephone call from the Governor could have ended this crisis 

which continues to have a profound effect on the Catawba potters. I might add that 

the majority of these talented Indians are not affluent and depend on pottery for 

many of life's necessities. Again, the State hurt those most in need of protection. 

More recently, September 1992,1 made a more direct attempt to put salve on 

the wounds caused by an event that I remain convinced could have been solved in a 

gentlemanly way in 1990. My letter to Mr. William Oliver Nisbet is included as 

Appendix VII. This correspondence went unanswered. 

As a result of actions taken in 1990, Catawba pottery production suffered. 

Classes planned for the Catawba Cultural Preservation Project had to be cancelled. 

The young could not be taught this ancient skill, and senior potters were cut off from 

much needed cash. Tutorials sponsored by McKissick Museum at the University of 

South Carolina were jeopardized by a lack of clay. If Justice were blind in South 

Carolina, the Governor would have come to the rescue. 

10 
265 

As the U.S. Congress contemplates the virtues of H.R. 2399/S. 1156, this 

lamentable situation continues. The Catawba, in their usual resourcefulness, have 

found inferior alternate clay sources. These are located on the reservation and on 

land owned by more civic minded and compassionate landowners. I am proud to 

report that numerous landowners dug clay on their land and brought samples to the 

potters in hopes that their clay might serve as a temporary resource. The Indians 

went through the long and arduous process of checking all these samples for 

useability. The best of these, still inferior to Nisbet clay, are in use today. 

I might add that I have been assured since 1979 that the clay holes would be 

addressed in any Catawba settlement. They are not mentioned in H.R. 2399/S. 1156, 

and I am forced to believe that the potters will remain hostage to a local landowner 

who may or may not grant them their traditional access depending on the local 

climate or his attitude at the moment. This is no way to do business and hardly a plus 

even in the economic package. 

Ending Statement 

Through the episodes enumerated here, which by no means tell the entire 

story, I remain supportive of H.R. 2399/S. 1156 only in regards to the economic 

package. I have severe reservations concerning the bold jurisdictional rights that 

South Carolina is wrenching from the Catawba. I do not believe that the U.S. 

Congress should allow this travesty. I know that the Eastern Office of the Bureau of 

Indian Affairs has voiced its objections early on in the negotiations and this concern 

alone kept them from the negotiation table. And I know that the misgivings of the 

BIA could and should be more vocal than the statement submitted on July 22. The 

Catawba are at a critical crossroads in their history. 

11 
266 

Not much has changed in South Carolina in the last two centuries, not when 

it comes to Indian affairs. South Carolina still looks to the extinction of this small 

but historically important tribe. I think that the U.S. Congress has one last chance 

to ensure that Lady Justice in South Carolina is made blind. At the same time, I do 

not think that the few jurisdictional issues that remain controversial, if they are 

changed in favor of the Catawba, will hurf South Carolina. I do know that if these 

jurisdictional issues are not properly addressed, the Catawba will be hurt. If this 

happens, damage will be done once again by the very people who are charged by the 

Constitution of the United States with protecting Native Americans. I think the 

Catawba of South Carolina are worthy of such attention. 

12 
267 

APPENDIX I 

642 A Street, N.E. 

Washington, D. C. 20002 

Mr. John Spratt 

U.S. House of R~presentati,·es 

1533 Longworth House Orticc Building 

Washington. D.C. 20515 

Attention: Tum Kahn 

Dear Mr. Spratt: 

April 29, !992 

Pursuant to a tekph<ln<: conversation of April 27 with \!r. Kahn of your office and 

subsequent telephone conversations with Assistant Chief Fred Sanders and Don \Iiller. NARF 

attorney, I have searched my tiles for South Carolina's Catawba \ation appropriations from !840 

to the present. I cannot say that my working tile is complete. hut it is n~arly so. Problems abound 

for the War Bt!t\vcen the Statl!s and the record situation is worse for Reconstruction. 

During the tirst nim: years. South Carolina was obligated to pay th~ :"Jation $2.500 

per year. but the actual appmpriatcd amounts range from a high of S2.1lilll in 18-13 to a low of 

$1.8-10 in 18-11. The record is further complicated by that fact that the legislature qualitkd the 

amount to be paid as "if neces,-ary." The only way to ascert;tin th~ actual amount South Carolina 

considered necessary is to stud)· e;tch agent's report for the: ye:tr in question. I have some of these 

reports in my files but not all of them. 

Also. there is often a hig difkrence b<:tween the amount appmpriated and the 

amount actually distributed to the: i'iation. Between 1861 and 1866. th~ Indians were often given 

produce rather than mon~y. Again e:u:h yc:tr would have to he studied to get J more accurate 

picture. Then from 1867 to !S77 confusion was th.: order of the day. For instance. the Catawbas 

registered several complaints that th~ir agent did not distribute any mon.:y at all even though 

money had been appropri:tted by the legislature. In 187] the agent rc:portcdly k~pt tht: money. 

and I cannot say if he: was forc~d to surr~mkr the appropriation hack to the: legislature or finally 

distributed the mon.:y. Then in 187-1. only S-10 of a $500 appropriation was suppns~dly distributed. 

In 185-1 the S.C. lcgisl:tturc: appropri;tled an additinnal 55.000 to be distributed if 

the Nation removed to Indian T•rritnry. This was to make up for the lost S5.000 that the U.S. 

Congress appropriated in 18-!S when it lirst seemed the C:tlawba would remove to Indian Territory. 

Neither amount was ever distributed. The closest the Catawbas c,·~r came to removal was in 1860 

when Chief Allen Harris and Councilman John Harris inspected land among the Choctaw in Indian 
268 

Territory. This removal plan was s..:r asid..: hy rhe War Between the Sr;ttes. 

In 1879 the J.:gislative appropriation and disrrihurinn prohkms herwccn tho.: agent 

and th.: Nation wen: linally solvo.:<l. An appropriation of S8ll0 per year was distrihute<l. Even here. 

however. one cannot assum.: that th.: rrib.: actuallv saw SSOtl. The cusrnm was to <lc<luct odd 

expenses from the Cuawba ;tppropriariun. For in~rance. th~ Carawhas had to build their ov.-n 

school out of this sum. trips to visit tho.: h:gislarur.:. and the ;tgent's p..:rc..:nrage from 3~< to S~ was 

also deduct.:d. B.:ginning in JS':IS it was normal for S20ll to bo.: taken otT the !up to pay rhe 

Catawba school teacher. In l':lll':l. li•r instance. a sum was scr asid..: fur the school. the agent's 

percentage and a trip 10 Columbia mad<.: hy the rrihal wuncil m chid. Th..: ag.:nr's report would 

reveal additional odd deductions. 

In 1':117 an additional linandal pruhlc.:m cnrers the picture. Although the 

appropriation had reached Sl.tHHJ per year, local merchants hegan ro hring claims against individual 

tribal members. The agent. at lo:ast -it seems that th..: agent performed this duty. thcn decided 

which merchants had vali<l claims. Thcse claims wer.: tak.:n otT rhe lllp of the appropriation and 

the remaining mom:y. minus school ct>sts. agt:nt's pcn:t!ntage. l!tc .. was tJistrihutcd equally among 

th.: .tribal memhers. It seems that those who ran up hills at rh..: grocery store got a larger shar.: 

of the appropriation. an<l rh.:n.; is no way of knowing if all the claims against the appropriation 

were actually true and accurat.:. From all app.:aranc.:s. it seems that each merchant's word was 

taken as gospd with Iilii\! .. ,r no invl..!stigation or legal rct:ours\!. 

Then in 1':121. the South Carolina legislature hcg:m Ill deduct Catawba Indian 

Commission salaries from the Cawwha appropriation. These men were loc;tl dclegares and 

businessmen who were .:mployed hy th.: Stale 10 study the Cllawba probkm. In 1920 th.: 

appropriation was SS.500 hut the deductions for rhar yea r amuuntd ro: S375 for rhe agent. S2.000 

for debts. S500 for the school. and S l,tMMJ for the :Catawha Legislati,·e Study Commission. In 1921. 

a total of Sl\47.30 was deducrcd from the S7,70tl appropriation for rhcse uflicials. That same year 

other deductions amounted to $375 lilr the agent. $70() i'or the school. and SIOOtl lilr local debts. 

The appropriation conrinu~<l nn J regular hasis at least until th~ Carawbas b.:came 

wards of the Federal Governm~nt. In 1':141 Suurh Carolina did appropriate S75.1Ml0 to purchase 

additional reservation lands l{tr the N;llinn. bur I have no way of knowing if all the S75.000 was 

actually spent. The Carawha .-'.ppropriatiun Act :-Jo. 39:1 was rcp<!:~l~d in 1 <J51 . hut Catawba School 

appropriations were appro,·ed until the "hool was clos.:d in 1 <J66. 

I have heen throu~h rh~ Bureau of Indian AlTa irs Cn:~wha Illes "' lc:tst 6 times over 

the last 15 v"ars and ha"e nc,·er iocat.:d what s"emcd to he a 81.-\ Catawba budget. The Fed<:ral 

Governme~l march.:d some S•lulh Carolina funds. and an agricuhur>l project wa; conducted. The 

amounts spent arc conjectural. The Catawba w.:r.: admin >t~red through Cherokee. and the 

answers to these questions arc prohahly to be found in th.: records of rh.: Cherokee Agency. 

Pleas..: keep in mind that rh~ list w;ts prepared in h:tsr.:. Th.:r.: should be ;tn agent's 

report for each y~ar. and it '"'uld provi<lc an ir.:miled account of "hat was spent. If I say rh.:rc 

is ---no record--. this m..:ans that I do nul ha,·e a record r.lr that .::~r . A record m;ty exist. but I 

merely could not lind it. 
269 

3 

The amounts listed bdow should give you a fairly good idea of the South Carolina 

appropriation from 1840 to 1951. If you need additional information. l will do my best to oblige 

you. 

Enclosure 

cc: E. Fred Sanders, Assistant Chief 

Catawba Nation 

Don Miller, Allorney. NARF 

Sincerely, 

Thomas 1. Blumer. Ph.D. 
270 

SOUTH C.-\ROLI:"iA LEGISL\TIVE AI'I'ROI'RI.-\TION 

AMOUNTS TAKE~ FR0\1 TilE FILES Of TII0:\1.-\S j. IILU:\IER IN .-\I'RIL 1992 

DATE 

1841 

1842 

1843 

1844 

1845 

1846 

1847 

18.J8 

1849 

1850 

1851 

!852 

1853 

1854 

1855 

.1856 

1857 

1858 

1859 

A:\IOl:\T 

$1.8~0. if n..:cessary 

S 1.000. if n..:cessary 

$2.000. if n<!cessary 

$1.8-l I. if necessary 

$1.S.J 1. if necessary 

$1.8-l 1. if necessary 

S 1.8-l 1. if necessary 

$1.8-l 1. if necessary. 

$1.S.J2.50. if n..:cessary 

$2.500. if necessary 

---no record---

$1.500. if necessary 

$2.000. if necessary 

$1,500. if n<!ccssary 

S 1.500. if necessary 

---no record---

$1.200. if necessary 

$5.000 appropriated by U.S. Congress was 

never used for removal. 

SC approved S5.mO if removal occurred; funds 

never used. 

S I.IX2.1S distrihuted to Indians 
1860 

1861 

1862 

1863 

1864 

1865 

1866 

1867 

1868 

1869 

1870 

1871 

1872 

1873 

1874 

1875 

1876 

1877 

1878 

1879 

1880 

1881 

271 

5 

No record. It is possible that the lc:gislaturc though the Catawbas would 

rem<w~ and take the S5.000 approved in IS5~. Neither happened. The War 

broke <lUI and the Catawbas served the Conf.:deracy. 

No r~cord. possibly in produce 

No r.:cord. possibly in produce 

No r.:cord. possibly in produce 

No record. possibly in produce 

No r.:cord. possibly in produce 

No n:wrd. possibly in produce 

SU!kl 

$6011 note from the Governor or SC 

·--no record---

---n<l record---

S777.91 

Agent r.:poncdly kept the money. Amount unknown. 

S501l appropriated but only S40 distributed. 

S6 75 appropriated. A legislative investigation said that a total of S2.145 had 

been appropriated from 1870 - 1875 but the amount distributed is unknown. 

· · ·Rll record--· 

Appropri:11iun made but amount unknown. 

Appropriation made but amount unknown. 

SStlO 

ssoo 

SXIKl 
1882 

1883 

1884 

1885 

1886 

1887 

1888 

1889 

1890 

1891 

1892 

1893 

1894 

1895 

1896 

1897 

1898 

1899 

1900 

1901 

1902 

1903 

1904 

272 

6 

ssoo 

ssno 

ssoo 

ssoo 

ssno 

ssnn 

ssoo 

SSOtl 

ssoo 

ssoo 

ssoo 

SSOtl 

ssoo 

ssno. but only $630 distributc!d. This is probably the case for each year. but 

my tiles do not always contain thiS inl(nmation. 

S933 

S8llll 

S I.Ot~l with $200 for the school. etc. 

S 1.{~)0 with $200 fur the school. l!tc. 

S 1.000 with s:wo for th.: school. etc. 

S 1.000 with 8% for th.: agent. etc. 

S 1.000 with d<!ductions for the agent. teacher. doctor. etc. 

SI.OOO 

S 1.500 with 6% for the agent. etc. 
7 

1905 s 1.500 

1906 S 1.500 with S21Kl for the school, etc. 

1907 S3.000 with ~<t for the Jgcnt, etc. 

1908 $3.000 "ith S21KI for th.: school. etc. 

1909 $3 01~1 expenses tu Columbia tletluctl..'tl. etc. 

1910 S3.500 

1911 S5.ono 

1912 S-1.51 60 tlistrihutcd 

1913 $7.150 

1914 Si.6tKI with $2511 fur the school, etc. 

1915 S7.tXKI with $51KI for the school. etc. 

1916 S7.tKXl minus claims, etc. 

1917 $7,000 minus claims, etc. 

1918 Sl:!.OO!Jminus claims. etc. 

. 1919 S7,UOO minus d.;ifns, etc . 

!920 SS.50tl minus claims. etc. 

1921 S7.700 minus claims. etc. 

1922 S7.7tXl minus claims. etc. 

1923 $6.625 

1924 S 10.~75 minus S 1.500 for the school. etc. 

1925 $9.375 minus S 1.500 for the school, etc. 

1926 S9,375 minus S 1.50tl for the school, etc. 

1927 $9.450 

1928 S<J.-150 
1929 

1930 

!931 

1932 

1933 

1934 

1935 

1936 

1937 

1938 

!939 

1940 

!941 

1942 

1943 

!944 

1945 

1946 

1947 

1948 

1949 

1950 

195! 

274 

S9A50 

S\1,450 minus agent and school 

S9.450 

SS.\105 

s 11 .2::!2.51) 

S9,450 minus agent and school 

$7.500 

$9.450 

S'!A5tl 

S':l,45ll 

SS.250 

S\1.825 

S\IJS5: S.C. appmpriated S75.000 ror land purchase. 

S'JJI>5 

S\1.385 

s 12.000 

No record. l suspect that the appropriation ~nded here. 

---no record---

---no record---

S 12.501) 1\1r schonl matched by LJS Government 

S 13.000 for the school 

---no record---

Catawba Appmpriation Act rcpc;Jicd: Act No. 393 

8 
275 

9 

1952 to 1966 the: Catawba Indian Schon( continued to np.:ratc as a York County school. It was 

closed in 1966. 
276 

APPENDIX II 

Pn~ 

C)t::-'J.rliol fl c.·d 

UNITED STATF.S DEPARTMENT OF EDUCATION 

WASHINGTON. D.C. 2020J· -

Than k you for submitting an application for the 1993 -94 Indian 

Fellow3hip Prog~am. Your appli~alion, however, cannot be 

co11~iJ~t ~d tor funding for the fol lowing rea son(s): 

Proof of Indian identity inadequate (Sec t ion 263.3}; 

Proof of Indian descent in 1st o~ 2nd degree not prov i ded (St:'ction 263.3 1; 

CX) Failure to prov ide doc,,mentat i on of m~m ership in a 

r~~~rall~ or slote reco gn ~cd I nd ian t1 ·~~e 1 ~Mn 1 o r other 

orgd11i~~J u,,v (Sect i on Z63.J J; 

.J.rpJ 1catio n for 1\0 in~li'{ibic i~ ld of st.url y (Section 

~ 03. 4); 

( I Only gradt1~te students Rt the postbaccalaureale le ve l a re awarded fcllo~3k1ip3 in the fields af n1ed i~ it1~ 1 law, 

educ ation, psychology, and clln lcal psychology (Seo;,;tion 

2CJ.4l 

Appropriat~ transc~ipts nol p~o ided (Section 263.~1; 

You are not accepted for e n r ollme n t or- cu_r:_rj!'_Q_!: _ __ly Sll...::D..li...e..d .....a....s 

a ru11-timEI ctudcnt at nn accred ited in:stitl.ltiou of biJ!her 

eUu~~Lion f or the fi e ld and level of study listed in the 

li})pli.~,..; aLiun l.Jy the Hay 1 1 1993 dl!"adline (::>ee p,J:;4-EJ). 

(X} Uther Y.Q.ur t.r i bP. was no_t rec o gni z ed qv e i ther tl,_e_ Rurea.u of. 

lnP.ian Affa irs __ or bv t he sta_!: ~ according t~...Lf ci~ 

lli..t..__nre.s~ nt- ed to th~ Office of _lJJ_di an E'duca t._i....Q...n.......:... 

The above explan ntion(s) is h~sPd on th e ~tig ibi lity r~ quiremenl s 

for- the Tndian Fellowship Program as outlin~d in the application 

package . Pl ea~e r<>fer to f. he sect i on( s) in paren these$ for a 

f\lr ther explanat ton of these req u irements . 

Thank you for your interest in the Indian Fello~ship Pro~r~m . 

.. -420:;~2~-. / -~~:, 1'. Derby, 'l"•l 

(_/ tndlan Fel l ows 1p f'r-ogro.m 
277 

&tatr of &nutlt Qtarolina 

(!)fficr of t~l: tJoutrl1Dr 'I • A (,;A\1 .. 1.~ Jfll 

o..:···-·I'A 

April 8, 1993 

Mr. John E. Derby, Chief 

Fellowships & Contral'U Branch 

Officf of Indian Education 

u. S. Department of Education 

Washington, OC 20202 

J)foar Mr. Derby: 

O u•.&t.»l ttc..••• "' 

Jrrt\. r• • ..,,J,o:.nt.f\Mo!. 

I am In receipt of yoW' letter tc concernins the recognition of 

the Catawba Tribe of South Carolina by the State of South Carolina. 

Cumntly, the C~w.l2as..Jr! .not a r~.ciz.....:! .£>!l~!r:-:lli::~£: ..,.;-; ci;;-.;..*~ 

slale or the federal government. 

Thi~ is one point of contention in a federal lawsuit by the Catawbu against 

the state and others. It is antidpated that recognition wUJ be granted by the 

federal government by year's end as a part of the aettlement of the suit. 

I hope this addresses your question. 

Sinc•rcly, 

Mark R. F.lam 

St>nior Legal Counsel to the Governor 

MRE/TDH/pO 
JOHN M. SPRATT, JR. lhtro MTM:f. IOUTH C#AOUMA 

ILULOIIIQWOil'Jl(MJf\~ 

WASMJoGlOfill. 0 C. DIS 202)~1 

278 

eongress of tbt 1tnittb 6tates •t of l\rpmJtntatilltl 

WastJirurton, ;.u:. 2os1s AjltTl' 30, 1993 

Mr. Christopher Chad Canty 650 Rutledge Drive 

Catawba, 5C Z970i 

Dear Mr. Canty : 

NTNCTQnlCU 

,mlliiAl..,lt.Dwa IIOllll IIUCA....._.,auur"~"'"'""''l' ~~~, .. ,,. 

»f. CAUOlJI Sll'UT ,., .. ,01. OOU'nl Cl.<tllOUI'I.t "'~ CIOt)fJ:J•DU 

JUW. L,AUitli"ltTltlii'T 

...... LN..Ifll.lr&S. SOVTH CAIIO\.JHA 2t360 "'"-

In rP.spono;P. tc> JUY inc:;ui:-y o~ l'Ot:r l:eh;olf, th.: D&partment of 

tducation has provided me with t~e enclosed reply. I regret that our findings are not more favorable. 

However, it is my suggestion that you consider applying next year !or funding. It we can be of further assistllnce with this or other matters, please contact my Rock Hill office. 

With kind regards, I am 

JMsjrtko 

Enclosure 
279 

APPENDIX III 

SETTLEMENT ···oF . _THE~ ·· cATAWBA ~ IND IA1t ;~· :, ~-~·>};~:- /: -~·- IiNri~.ci:AtiWs· . · ... ~ : .. .. :- . ~ ·:' ·- ... 

HEARING 

BEI'ORB THII 

COMMITrEE- ON 

INTERIOR AND INSULAR AFFAIRS . . ,J' . : .,. .• · . 

. HOUSE OF . REPRESENT1TIVES ~'1SETY-SIXTH CONGRESS 

FIRST SESSION 

:ON . : 

-H.R. 3274~. ' . .. .. . - TO SETl'LE THE NONINTEBCOUBSJ!I CLA.DIS OF THE OATA WBAINDIA.N TRIBE OJ' SOUTH CAllOLL'U 

· ·I ·_,~~.: ~·~ . .. ,: ~.~--;~~~-~-

•• _t · · ••· .,_ ..... .. -: .• _, .. · ___ ? -: ·.• . - . 

BEARING HELD IN W ASBINGTO!f; D.O. · 1UNB 1.2, ISI18 ·' . . . 

. ~- . _, .~:,- :·, ':. 

. • • . .· ·.'iJ 

Serial No. ~17 _. ~)~-- ·1· ··..:._ :. .. 1, . 

. . ' .. __ ... \ :-·· .... ·~ . ~-~--~ 

·. ·Prill~ foi' "thti~ of the ~ .. . 

· Committee oD ID.tedor uG.l,JIRI&r Alrllrs 
280 

APPENDIX III 

463 

TWO POINTS CONCERNI!iG ;. JUST SE77LEMENT OF THE 

CATA~~A INDI;.N LN~D SUIT Or 1977 

by 

Thomas J. Bluoer 

I first met the Catawba Ir.1ians of South Carolina in 1970 

when I began my aoctoral studies at the University of South 

Carolina. 'l."hat started as a casual fnendship with several 

Catawba potters evolved into a major resear ch project which 

currently occupies much of my time . Upon completion of my 

doctoral studies in 1976, I obtained a tem~orary apfointment 

as a lecturer in the English Department at ~inthrop College in 

Rock Hill. During the fall semester, I interested 20 Catawba 

potters in the idea of having a fOttery exhibition/sale at 

'f'inthrop's Art Department. 'f.'hile researching the exhibition's 

pamfhlet, I interviewed several Catawba potters about the olri 

custom of selling pottery at ~inthrop's gates. These Indians 

told of a long and interesting t:-;diti on, and my interest was 

immediately captured. From the vantage point of a scholar, my 

work with the Catawba Indians has beer. parti cularly rewarding, 

since the story of the Catawbas has n~ver been ! ully told, in 

spite of the fact that the Cata~bas are probabl y among the best 

documented I~riian groups in the ~r.itec States. Virtually every 

major event in over )50 y~ar s o: their recorded ~istor~ has been 

meticulously written down in a ;.;ice variety of cotuments. · 

Since ~y interviews in f~e;aration for the inthrop 

exhibition, I have been actively engagea in res~~rching the 

story of Cat.:;wba pottery from Fre-ColUJ!::J ian tirru~s, and th~ 
281 

464 

T~O POINTS, PAGt 2 

study is now in the writing stage. I also plan to ~o a 

comprehensive history of the Catawba Nation. My ast;ociation 

with the Catawba Indians has also led me to assist the 

Catawba Arts and Crafts Association with many tasks including 

forming the association, helping to set up exhibiti~ns, and 

even assisting the fledgling group with minor legal difficulties. 

I have also published four articles on the Catawba pottery 

tradition and two additional articles will soon be ready for 

publication. 

In this paper, I will discuss two aspects of CLtawba 

history and culture wh~ch I feel the Committee on lLterior ana 

Insular Affairs of the United States House of RepreLentatives 

should have access to in ita attempt to find a fair solution 

to settling the Catawba suit of 1~77. These are: (11 the 

events following the Catawba Tribal Termination of 1961, and 

(2) the problems the Catawbas face concerning the u&e of their 

ancient clay deposits. 

TERMINATION OF 1961 

Perhaps one of the most interesting events in recent 

Catawba history is the termination of United StaLes wardship 

in 1961. After over 100 years of livir.g !n oftt:nti~es great 

poverty and just a few souls from extir.cticn, the C£tawba 

Indians of South Carolina were finally r~scu~d from the negligence 

of the state government and were made wards of the United 

States in 194). Possessing an expance~ resnrvation and sucdenly 

being permitted to seek perm&nent emr1oyment in the local 

cotton mills--largely the result of the war efforts of the ti~c·-
282 

465 

~0 POINTS, PAGE J 

the ~awbas prospered, and this new prosperity has continued 

to the present day. There were, however, many problems with the 

New Reservation which was administered from far-off Cherokee, 

North Carolina, and by the late 1950's the Catawbas felt it 

might be best to seek their independence under the then pofular 

policy of termination. Rushed by forward thinking bureaucrats 

and the lure of a few dollars, the Catawbas refused to listen 

to the warnings of the more conservative element in the tribe, 

and concerned whites were silenced. Termination became a legal 

reality, and the tribal roll was closed in 1961. 

In theory all should have gone well. The Catawbas had 

largely abandoned their old 600 acre state reservation and were 

living on the larger federal lands. Most were working in local 

industry, and their childr~~ were receiving the benefits of the 

county educational system. It was thought that termination would 

merely be the last step in an assimilation process which had 

begun with white contact in 1526. The Catawbas were thought to 

be ready to join the mainstream of the local population. Many 

thought Albert Sanders would be the last Chief of the Catawbas. 

Howevor, all did not go well. The foderal termination 

program did not take the spiritual aspects of tribalism into 

account, and no thought was given t o the effects of Lribalism 

on the individual. Many Catawbas did not care to abd don their 

tribalism, and others were not re~dy to face alone th~ financial 

aspects of the .lOth century. Cft~'<n the childrtn oi those who 

wanted to break tribal ties wanted to maintain their identities 

as Catawbas when they were old enough to make the cecision. 
283 

466 

T'#.O FOINTS, PAGE 4 

The most immediate and dramatic proolems were financial and 

were no surprise to the Catawbas. Perhraps the hartinger of 

events to come ap~eared in a letter writter. to the agent in 

Cherokee by a Catawba mother. She waa imfatient fer her share 

of the tribal assets so she could buy sct.ool clothing for her 

children. She declared that some of those who had chosen land 

over money had already sold their land and had their money in 

hand. She had voted to take her share of the tribal assets in 

cash and was still waiting. The failure of the mor.ey to arrive 

in time threatened to deprive her children of new clothing for 

school. Another individual complained that he nee,ed his money 

i ... diately so that he could move his family from ene military 

base to another. Little thought was given to the future of 

the Catawbas as • group. The woman's children would grow UF 

landless in the middle of a region tt.at their ancestors 

once ruled over supreme. The soldier would later re~urn home 

and seek an allotment on the crowcec Ole Reservatien. 

The problems were magnified ty speculators whe were ready to 

exploit the Catawbas who suddenly possessed a bonus of several 

hundred dollars or t.eld parcels of land ~i~h clear title. 

Although it must be emphasized that the Catawbas suffer far less 

fro• the ravages or drink than do their non-Indian neighbors--

a fact that can be attributed to their adherence tc the Mormon 

faith--it is ruaored among the Catawbas that one individual 

traced his birthright for a surply of whis~ey. Ancther aan 

was approached by a speculator who lives in the shadow of the 
284 

467 

T~O POINTS, PhGE 5 

Catawba Reservation. The Catawba traded his acreage for an 

automobile which hardly survived the season. Indians who had 

no idea of the value of land since they had never owned any 

except as a tribal society, quickly gave away wher. they had. 

Recently, I had occasion to talk with one of the Catawba 

potters who lives in poverty not far from the Old Reservation. 

I asked her what she did with her land. She explained that 

she thought she could do better with the land and chose it 

over a cash settlement. Her intent was to sell the land and 

make a profit. "It never dawned on me that I could have sold 

the trees end taken the money end built me a nice house on my 

land." She sold her land and spent the money quickly on life's 

necessities. The story of how the speculator fared need not 

be told. 

In still another case, a mother received land allotments 

for herself and each of her children. Together the rarcels 

made up a farm which should have given her children a secure 

future. Instead, t~e land was sold before the children 

reached maturity, and today they have nothing. Their wellmeaning mother did not intend to cheat them out of their 

inheritance; she simply did not see the value of holr.ing land 

since she had nev~r owned any. Today scme of her children 

and others like them hav~ returned to the Old Reservation. 

Contrary to test.imony given befcre tt·.e CoOlDlittee on :nterior 

and Insular Affairs on 12 June 1979, the Old Reservation is 

not in a desolate state of abanuonement but. instecc 13 crowded 

with frame homes and trailers. Indeed, at this very moment, 
285 

468 

T~O POINTS, PAGE 6 

several Catawba families are approaching the Catawt•a 

Executive Council to receive allotm~rts of reservati on land 

and plan to return there t o live. As th~ economy tontinues 

to tighten, the trend will accelerate . The Catawb~ Tribe is 

in dire need of a larger reserv a tion. 

A cash settlement for the Catawba ~ati n is nvt ~ fair 

solution to the tribe's future needs. T'ibalism 1~ still a 

strong force among the Catawbas. Eviaence of this fact is 

exr~bited even by the tribal faction which is so vehemently 

opposed to the "land and programr settlement. Thele individuals 

use tribalism as a basis for their opposition to s~ch a 

settlement. In the future, as intiividua~ Catawba Indians 

have difficulties and need a home, they will naturally 

gravitate toward their res~rvation 5nd their tribal government. 

Others will never leave the C~t~wba Tribe but will s~end their 

entire lives in the community of their b~rth. Thrcugh the 

settlement of the Treaty of 1840, thi! Ca-;.awbas sho~;ld be left 

prepared to assist tribal members, even those who ~o not have 

the foresight to see that a new reservation and ed~cational 

programs are in their best interest. Htre is the cnly insurance 

policy the Catawbas can inv e st in for the future. One wonders 

what sort of a settlement th e next generation vf Catawba 

children will need. They shoulc not be permitted to approach 

their parents and say, ",.-hi.lt haprenea to our share?" They 

shoula be able to see the re~ults in a ne~ reservation and in 

educational aavantages whi ch w1ll benefit their tribe. why 

should the tribal assets be used once again to line t~e FOCkets 

of SFeculators? The tribal inheritance shvuld not be aquanderud 
286 

469 

T'iiO POINTS, f',.GE 7 

but should be kept for the next generation. Since the Catawba 

tribe exists as a viable unit, it must be protected by a wise 

federal government and not left without resourr:es. 

OWNERSHIP OF THE CATA\'iBI\ CLI\Y HOL~S 

Early in the 19t~ century, the Catawba Nationa legally 

owned and collected the rents for the 144,000 acre reservation 

which is the focal point of the current land suit. Although 

many of the white farmers whose descendants still inhabit the 

Indian lands were fair in paying their rents, many of them 

cheated the Catawbas in the traditional manner. Gradually, every 

acre of the reservation was held by whites with the exception 

of King's Bottoms. This tract was reserved by the Catawbas 

because it contains the ancient Catawba cemetery, the ceremonial 

grounds, and the Frecious clay which the Catawbas use in 

proaucing their unique pottery. ~ventually, even this last 

section of land was leased, between 1813 and 1626, to a 

fortunate landowner by the name of John Doby. In time Doby 

sold the land to the Johnston :amily, ar.d they in turn sold it 

to the Nosbits who are the current owners. 

Although the Catawbas lost legal rights to this important 

real estate in the 19th century, their attraction to King's 

Bottoms has never waned. After the Treaty of 1640, t~e State 

of South Carolina attempted to be rir. of the Catawbas ana 

shipfed t~em off to ~orth Carolina. it was not long, however, 

before Governor Morehead maoe it clear that his state had 

enough Indian problems of her own without taking the pitiful 

remnant of the Catawba Nation under her wing. During this 
287 

470 

T~O FOINTS, P~GE 8 

traumatic time, the family of Alan Harris refused to join 

the rest of the tribe in their North Carolina sojour.1. Instead, 

Chief Harris became the leader in the retur-n of the \~atawbas 

to South Carolina. Naturally, Chief Harris's str-ongest asset 

was his call for the Catawbas to return home to their old 

village site, King's Rottoms, which they had occupiPd for 

hundreds if not thousands of years. then the tribe tad 

successfully returned home, however, the Catawbas belame 

squatters on their own land. South Carolina, suffering from 

embarrassment, tried to J:urchase a re se rva ti on for them. TLe 

land of greatest spiritual value to the Catawbas, King's 

Bottoms, was far too expensive for the state to J:Urchase. hn 

alternative was then forced on the homeless Catawbas, and 

the impoverished land whicl'\ has com~ t.o !:le known as t.:1e Old 

Reservation was obtained. The Catawbas were not sati~fied, but 

they were close t.o their ancient. villag~ site. They 1.1erely had 

to cross the Catawba River by boat a~a they were home. Once 

in the bottoms, they were free to dig the clays used by countless 

generations of Cat.awba potters. In turn, each of the three 

successive families who owned the bottoms recognized that the 

land hnd a srecial spiritual meanin~ to ~ Catawbus. TLe 

white owners have always re~puctea the c~~ wba Indians' 

special rights to this land. 

One could hardly say that it is cus~ ~~ry for South 

Carolina farmers to rermit. reof}e to 0.'.3; 1:~ thHir fiel.1s in 

search of clay. The Ne3bit family, howe'e~, has ~lwayd bc~n 

friendly toward the Catawbas; and, to ~y nowledge, thu Catawba 
471 

~0 POINTS, PAGE 9 

Indians have never had difficulty obtaining their neeaed clay 

supplies. Unfortunately, recently, the Catawaas have been 

aeeply troubled by rumors that their clay suprly might be cut 

off in retaliation for the uncomfortable situat~on c&used by 

the current land suit. It is impossible to say where these 

rumors have originated, but they point out a very real danger. 

Many people wonder why the Catawba potters are so firm in 

their insistence that they use the clay found in the Nesbit 

River Bottoms for t~eir pottery. The clay from the bottoms 1a 

particularly pure, almost miraculously Flastic, a~a very 

necessary to the construction of the traditional Cata~ba vessels. 

Other clays are known to the clay-conscious Catawbas, but these 

clays are not used because of the high F~rcentage of impurities, 

of the high incidence of breaka[e curing the firing frocess, 

and because commercial clay is not the clay grandmother's 

grandmother used in making her pots. In the words of one elderly 

potter, "The clay from those bottoms is the best clay ever; 

I've never used any other clay, and my mother's mothe~ dug her 

clay there." 

Some may think that since the Catawbas have used the clays 

fro~ the Nesbit Bottoms through an un"ritten agreemer.t for so 

long that they should be content to continue to rely on the 

generosity of the landowners. Our country, however, rices not 

operate on the agreements made by gentlemen. Th~ Cata~bas need 

a legal right to their clay source. In t~e finai analysis, the 

Catawbas do not own the river botcoms. ~hat would h~rren should 
289 

472 

TWO f'Oit;TS, p,.GE 10 

the current owners decide to abandon the traditional ri~1t 

of the Catawbas to trespass or should the land change ha~ds 

again? Nothing short of a long legal battle would compel! the 

new owners to honor an ancient agreement even if it tas ~een 

in force for over 180 years. If the Catawba Indians we~~ 

barred from the river bottoms, they would have little le~al 

recourse. In the past this very rroblem has occurred but with 

a less vital source of clay. 

The Catawba potters do not use the Nesbit clay in its pure 

state except in the manufacture of small vessels or smoking 

pipes. To make larger pieces, they must mix a stronger tempering 

medium with the Nesbit clay. In the 1840's, after the Catawbas 

moved onto the Old Reservation, they fauna a suitable location 

from which to take this tempering agent. The clay hole was 

situated on a nearby farm, and the Cat<>wbas freely used this clay 

hole for almost a century. Then the inevit<>ble happened: the 

original owner sold the farm and the new owner simply did not 

want his land aug up. He told the C~tawbas they were net welcome. 

The clay hole was abandoned and remains so to this day. This 

same situation coula easily occur shoulu th~ Nesbit family decide 

to sell the crucial river bottoms. While the Catawbas tan 

find secondary sources for the tempering f'l~d1um, tr.e salle is not 

true of the Nesbit Botto~ clay. ~ithout this clay, the Cat&wbas 

would have great difficulty maintaining their <>ncient p.;ttery 

traoition. 

Recently, there ta3 been g~eat fear among the Cata~~a 

potters that the local lanaowners migtt retaliate in tht face 
290 

473 

T\1."0 POINTS, P!GE 11 

of the current land suit and deny the Indians access to their 

clay deposits. Shortly after the suit became a aaJor iaaue, I 

received the following complaint from one of the Catawba po~~•r•: 

Our clay situation has gone fro~ bad to worae, 

to use an old saying. Mr. Nesbit only will let 

the money group get clay. If we want land and 

programs, we dont get clay. Isn't that 

terrible? I made cy last clay up last week 

and that's it. 1~-22-78) 

These rumors turned out to be without grounds, but many of the 

potters dld not get their &ummer's clay supply in until la~• 

in the season. Tben more recently one declared: 

I only have about a peck of pure clay. After 

the L~nd owners did not get things to go 

their way in Washington, I'll bet the Nesbits 

wouldn't let us within sight of the clay holes. 

(6-79) 

During this same period it was also rLmored that the black 

farmer who owns the currentsource of the tempering medium 

was not pleased to have the Catawba Indians visit his land. 

It is obvious that this precarious state of affairs 

&hould not be permitted to continue. The two parcels of 

land containing clay crucial to the manufacture of Catawba 

pottery should remain part of the new reservation that the 

Catawba Executive Council has requested as partial settlement 

of the Treaty of 1840. In actuality, the crltical land 

necessary for the continuation of the Catawba pottery tradition 

~akes up only a small portion of the Nesbit farm. In this 

case, however, the lan~ is valua b le river bottom acroage. In 

the case of the land which yeilds the tempering cejium, we are 

not talking of a valuable parcel of land. This clay hole is 

located not on valuable farm land but in the miridle of a tangle 
291 

474 

TWO POINTS, PACE 12 

of ~crub oak and weeds. 

If the clay holes are not made a part of the New Reservation, 

it will only be a matter of time before tre CatawDas are denied 

acces~ to treir clay sources. One might s&y that such a loss 

would not be earth shattering, for only forty Catawba potters 

are active craftsmen. The Catawba tradition, hoW!ver, is not 

just a Catawba treasure but a natiann: cne. The Catawba potters 

constitute the only group of Indi&n patters east of the 

Mississippi River which tas maintained this abori~inal art form 

in a nearly pure state from pre-Calumtian times tv the present. 

This heritage must be protected. 

u 
292 

APPENDIX IV 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF SOUTH CAROLINA 

Catawba Indian Tribe C/A No. 80-2050 

of South Carolina, Inc., 

Plaintiff, 

vs. 

State of South Carolina, 

et al., 

Defendants. 

AFFIDAVIT OF 

NOLA CAMPBELL 

PERSONALLY appeared before me, Nola Campbell, 

who being duly sworn, deposes and says that: 

1. I am a member of the Catawba Indian Tribe. 

2. For as long as I can remember members of 

the Catawba Indian Tribe have gone upon the lands claimed 

the Nisbet family in Lancaster County to dig clay for use 

in pottery making. 

every six (6) to eight (8) months since I was thirteen (13) 

years old and I am now seventy-two (72) years old. The 

last time I went on the lands claimed by the Nisbet family 

in Lancaster County was several months ago. 

4. Each time I go on the land claimed by the 

Nisbets I dig and take away a couple of bushels of clay. I 

have never been denied access when I went there to dig in 

the clay holes. I have know of no member of the Catawba 

Indian Tribe who has ever been denied access 
293 

to these lands when they sought to enter and dig clay. 

SWORN to before me this 

..ll.}!day of , 1990 

/lL+fzVt.~~!L.s.l Notary Publ~ ~ Carolina 

My Commission Expires: 0 41- f! 

2 
294 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF SOU'l'H CAROLINA 

Catawba Indian Tribe C/A No. 80-2050 

of South Carolina, Inc., 

Plaintiff, 

vs. AFFIDAVIT OF 

FRANCES WADE 

State of South Carolina, 

et al., 

Defendants. 

PERSONALLY appeared before me, Frances Wade, 

who being duly sworn, deposes and says that: 

1. I am a member of the Catawba Indian Tribe. 

2. For as long as I can remember members of 

the Catawba Indian Tribe have gone upon the lands claimed 

the Nisbet family in Lancaster County to dig clay for us~· 

in pottery making. My parents before me went on those 

3. For many y~ars members of the Tribe crossed 

the river by boat and entered onto the lands claimed by t.hP 

Nisbets. They never asked permission or notified the 

Nisbets of their entry on those occasions. 

4. I have gone on the property on average 

several times per y~ar over my lifetime and I am now sixtysix (66) years old. 

5. Each time I go on the land claimed by the 

Nisbets I dig and take up to 150 pounds of clay. 
295 

I have never been denied access when I go there to dig in 

the clay holes. I have knownof no member of the Catawba 

Indian Tribe who has ever been denied access to these lands 

when they sought to enter and dig clay. 

6. At this time at least nineteen (19) people 

conti nue to enter onto the lands claimed by the Nisbet 

family in Lancaster County on a regular basis and to dig 

and carry away clay therefrom. 

2 
The Honorable Carroll A. Campbell 

Governor of South Carolina 

P.O. Box 11369 

Columbia, South Carolina 29211 

Dear Governor Campbell: 

296 

APPENDIX V 

642 A Str~~t. N.E. 

Washington. D.C. 20002 

August 14, 1990 

I am writing a letter that I feared would be a ne~essity in 1977 when I tirst b~gan to work with 

the Catawba Indian Tribe of South Carolina. On May 17. 1990. the ,iwner of the Catawba pipe 

clay hol~s. Mr. William Oliver Nisb~t . turn.:U the Catawba potters away from thdr only pipe clay 

deposit. This a"ion was taken in r~taliation ti1r the land suit. I am writing to implore you to use 

your intluen~~ to help the Indians regain thdr anci~nt right to visit King's Bottoms (Nisbet 

Bottoms) to dig day. 

Although the Catawha Indians lost ~ontrol of Kings Bottoms (Nisbet Bottoms) in 1840, they have 

continued to use this crucial resour~e . Ea~h owner during this 150 year period, . including at least 

two generations of the Nisbet family, has honored the Catawba's right to this clay. This unwritten 

but long honored agreement has permitted the only Native Amerkan pottery tradition practiced 

east of the Mississippi to survive. Today. lr . Nisbet has a strangle hold on one of South 

Carolina's greatest cultural treasures. 

Since May. several potters who customarily prudu~e museum-quality wares have been idle. In July 

a pottery da" for 20 children was funded. I think by South Carulina and Federal agencies, and this 

class could .. not be conducted without clay. If the Cttawha pottery tr<~dition is to survive into the 

list century. the youth must be taught. tveryone re.:ognizes thiS tact. Mci<issiclc Museum has 

responded by funding a very successful tutorial program. These classes cannot be continued 

without day from Nisbet Bottoms. 

Since May I have used every avenue known to me to rea~h Mr. Nisbet and have failed to do so. 

I feel that you are probably the only person in South Carolina who ~an intervene on behalf of this 

small community of Amerkan Indian potters and end a lamentahk ~risis . 

Sin~erdy yours. 

Thomas J. Blumer. Ph.D. 
297 

APPENDIX VI 

CAilii'IOU. A. CAMI'fllll. J•. 

"'"'"~ 

August 22, 1990 

~tatr of ~outq <!!arolina 

(f)ffirr of t~r <Sourrnor 

Dr. Thomas J . Blumer 642 A Street, N.F.. 

Washington, D.C. 20002 

Dear Dr. Blumer: 

FJo.T 0,..1C11 Bo• 11)59 

COLUMSIA 29:21 I 

Thank you for your letter concerning the Catawba Indians and 

their dispute with Mr. Nisbet . The Governor has asked that 

I respond. 

Although, I can understand your concern for the preservation 

of Native American culture, this matter is currently before 

the Federal Courts and certainly beyond the power of the 

Governor to intervene. Furthermore, Mr. Nisbet and his 

family have resided on this property for over one hundred 

years. His concern over the Catawba Indian suit certainly ~ a-ffected his aPnPrn~it-.y nw::~~rd t-.hn~P r.:..t-::.tJh;ll~~....h.a. ~ 

gathered clay from his land for years. It is indeed 

unfortunate that the citizens of south Carolina must 

continue to have to live with the issue, however, until the 

land claim dispute reaches a final conclusion it is likely that such sicuations will persist. I certainly can 

understand those landowners reluctance to grant certain 

privileges to the catawbas. 

Again, thank you for your letter. If I may be of any 

assistance to you in the future, please do not hesitate to 

contact me. 

Sincerely, 

Mark R. Elam 

Senior Counsel to the Governor 

MRE/ jl-w 
298 

APPENDIX VII 

642 A Street, N. E. 

Washington, D.C. 20002 

limn( Tdc:phot~e (201) 5./J-iOJJ Offin· Tdephonc: {!01) ~Ui 9811 

Mr. & Mrs. William Oliver Nesbit 

Van Wyck. South Carolina 29744 

Dear Mr. & Mrs. Nesbit, 

September 21, 1992 

I have wanted to write to you or talk with you for a very long time about the clay holes 

and your family's relationship with the Catawba. Since the Catawba tiled suit, my greatest fear 

has been that access to the clay holes would become legally entangled. And it did -- two years 

ago. I spent hours on the long distance lines talking to Lindsay Pcllus and others about a 

solution. Initially. I thought the happy ending would b..: a change of heart -- on your part. 

And I prayed that the lndi;ms would find an ah..:rnatc clay source that they might use until life 

in the claim area returned to normal. 

My prayers for an alternate clay source were not answt:red. During the time the 

Catawba could not dig clay on your land. they made every effort to lind clay elsewhere. Two 

sources were found on the reservation, but neither proved good enough to make pottery. It 

was so poor that the pollers could not build vessels taller than one inch. What a travesty --

what a disappointment -- when compared to the size. the magniliccnce, of the pots made from 

the ancient clay holes on your land. Several landowners offered possible clay sources on their 

land. Samples were tested in Columbia. But all contained too much sand. Geologists at the 

University of South Carolina have been working with maps. but so far all the clay outcroppings 

are inferior. The happy result of this turmoil'! The Catawba know a lot more about local clay 

resources. And we have a much beller understanding about why the Catawba have been so 

wedded to Nesbit Bouoms (Kings Bolloms/Johnstnn Bouoms) for so many centuries. The old 

Indians knew the value of the clay found in Nesbit Bottoms. That 's why they've dug clay there 

for so long. 

Last spring. Earl Robbins and Evelyn George told me that you were allowing the 

potters to dig clay on your property once again. Then ~arne, I thought. the happy ending -- the 

change of heart. I felt the inextricable bond between the Nesbit family and the Catawba had 

been mended. But last month. while I conducted at Winthrop University a Teachers' InService regarding the Catawba pottery tradition, I he:trd from sever:tl potters that,access to the 

clay holes had become a problem again. My immedi:tte reaction was disbelief, because I had 

heard that a settlement otTer was in the works and that the Catawba were close to accepting 

the offer. If what l heard about the recent clay hole dispute is true. l hope that by the time 

you receive this letter the access problem will be a thing of the past and that you will be 

allowing the Catawba potters access to their ancient clay holes once again. 
299 

There's another issue. perhaps even more personal to you. I understand your home has 

long been on the National Register of Historic Sites. There is every reason to expand the 

historic importance of your land. It contains the last Catawba village site occupied before the 

Treaty of 1840. It contains the cemetery they used from pre-Columbian times to the 1860s. 

And it contains the irreplaceable Catawba clay holes. Your family and the Catawba have had a 

long and friendly and historic relationship. There must be a way to get past the problem at 

hand, to recognize the full historic significance of your land. and to preserve the legacy. 

Perhaps I can help. I stand ready to do so. Perhaps the Catawba Cultural Preservation Project 

can help. I cannot speak for them. But I believe they stand ready to help as well. 

Both points -- expanding the importance of your land on the National Register of 

Historic Sites and making the clay holes accessible to the Catawba once again -- are points I'd 

like to discuss with you. 

I will be at Winthrop on September 30th for a symposium and exhibit of Catawba 

pottery. The show will open on October I. and the symposium will begin at 9:00 a.m. on 

October 2. My talk is entitled "The Catawba Potters: Teaching in Crisis." I will discuss the 

complexity of the Catawba teaching process; the traditional pottery method; modern diversions 

which cause the young to turn away from their tradition; and Catawba innovations to carry the 

tradition into the 21st century. 

I'd like to invite you and Mrs. Nesbit to come. I hope you'll accept my invitation. I'd 

like you to hear me talk. And if you're inclined. I'd like for us to talk about the points I've 

raised here. Your family has long played a role in the survival of the Catawba's unique pottery 

tradition. The Nesbit family still has a role to play in preserving Catawba pottery for both the 

State of South Carolina and the nation. Again. I hope to see you on October 2. 

Sincerely, 

1l1omas J. Blumer. Ph.D. 
'b-,. orl'l-. To.. BID· 17U 'b-,.or.....,....17U 

300 

CATAWBA NATION 

1540 Tom Steven Road 

Rock Hill, South Carolina 29780 

(803) 324-7078 or (803) 324-0677 

30 June 1993 

The Honorable George Miller, Chairman 

Committee on Interior and Insular Affairs 

United States House of Representatives 

Washington, DC 

Dear Congressman Miller: 

Enclosed you will find my statement on H. R. 2399, a bill to settle the Catawba Indian Land Claim which was introduced on June 

lOth by South Carolina Congressman Butler Derrick. I am unable to be present during the hearing on July 2nd, so I am sending 

this testimony for the record. 

As Assistant Chief of the Catawba Indian Nation, I am deeply 

concerned about this bill which is written heavily in favor of 

South Carolina and deprives Catawba of the basic rights of a 

sovereign Indian nation. 

If H.R. 2399 is enacted without change, South Carolina will 

have succeeded in turning the Catawba Nation into a township 

under the thumb of local and state control. We will be 

"federally recognized" in name only. The United States is asked to provide most of the funds for this settlement and to give most of the power to South Carolina. South Carolina's financial 

contribution to the settlement of the Catawba land claim is 

minimal, even though state citizens have enjoyed usage of · our aboriginal homelands since 1840. This state has an enormous appetite for control over the Catawba Indian Nation and no interest whatsoever in acknowledging any federal rights. 

You will hear NARF and Chief Blue say that this settlement 

is •overwhelmingly supported by the Catawba people.• They will not tell you that most of the Catawba people voted on a document 

they did not understand, or that those who criticized the 

settlement were not allowed to speak during the meeting where the vote was taken. It is therefore especially important that this 

bill be afforded a full and fair hearing by the United States 

Congress. I offer this testimony to help clarify the record and 

to seek the assistance of Congress in rectifying wrongs which 

will only become worse if this bill is made law without change. 

& ........ Saud.,... 

Assistant Olief 

Sincerely, ~ 

f~:a~~iers, Assistant Chief oGIIbert B. mae Car.oa T. Blae 

Olief Secrebuy/rreaaurcr • 
301 

STATEMBII'l' OJ' Jl. I'RJID SAIIDJIRS 1 ASSISTAII'l' CBIJII' 

CATAWBA IIIDID DTIOII 

BJII'OU THJ1 COMKITTJIJI 011 Ill'l'JIRIOJl .DID IBSULAR AJ'I'AIRS 

011 JI.Jl. 239!1 

A BILL I'OR THJ1 SBTTLBKJIBT OJ' LAHD CLAIKS OJ' THJI CATAWBA TRIBB OJ' 

IIIDIUS Ill TJ[JI STATB OJ' SOUTH CAROLINA .DID THJI llBSTOiitATIOII OJ' THJI 

J'BDBiitAL TROST llBLATIOIISJIIP WITH TJIB TlliBB, AIID I'Oil OTHJIIl POJlPOSBS 

JULY 2 1 1993 

I. Introduction 

Greed and political power have destroyed individuals and 

nations throughout the world since the beginning of time. These 

twin terminators have been no strangers to American Indian Nations. 

H.R. 2399, a so-called Catawba settlement, is more evidence of the 

continuing presence of greed and political power in Indian Country. 

This settlement will benefit south carolina and its non-Indian 

citizens, but it contains very few advantages for the Catawba 

people. For a mere $12.5 million, South Carolina will achieve its 

goal of obtaining total control over an aboriginal Indian Nation. 

If the settlement package is approved as written, it will destroy 

Catawba's future as an Indian Nation, and its people will be 

condemned to face the extinction South carolina has sought for so long. 

If the United States government is going to commit $32 million 

toward this settlement, the Catawba Indian Nation should not be 

relegated to little more than a tourist attraction in South 

carolina. The language of this settlement must be carefully 

reviewed and amended in order to protect the catawba people, even though it may mean saving them from themselves. 

Too often, history has shown that the United States Congress ironically used its power to harm rather than to protect American 

Indian nations. Catawba was one of the Tribes subjected to the 

devastating federal termination policy of the 1950s. Despite 

promises by federal officials that the Catawba land claim would not 

be touched by termination, we have learned in recent years that 

these promises meant nothing. Congress did not reveal this truth 

to the catawba people, the federal courts did. It was not the 

Tribe's fault that language to protect the land claim was omitted 

from the termination act. The termination act was written by federal officials and advocated by a Congressional representative from South Carolina who claimed, but did not have the full support of the Tribe. 

If Congress is going to destroy a treaty right of an American 

Indian Tribe, it must be told to them in plain language . Isn't 

this the position which is claimed by the United States, at least 

in theory? Sadly, termination is still very much alive and well. 

This settlement, as currently written, is evidence of this fact. 
302 

statement of E. Fred sandersjH.R. 2399 

Page two 

Worn down by the weight of broken promises which have fed the greed 

and political power of the State of South Carolina, the Catawba 

people have acquiesced to this settlement by exhaustion. 

I was born on the Catawba Reservation on April 9, 1926, and 

have lived there most of my life. I am familiar with catawba 

history, art, customs and tradition and often function as Tribal 

historian on the board of the Catawba CUltural Preservation 

Project. Since 1975, I have served as Assistant Chief, and I have 

been present throughout the process which has brought us to this 

time. 

Although you may hear testimony from catawba representatives 

in support of H.R. 2399, they bring you the results of what is 

called "an adhesion contract," an agreement that is totally onesided. I submit that the Catawba people did not fully understand 

the Settlement Agreement they were asked to vote on, just as they 

did not fully understand the 1959 Termination Act. Now the 

decision is with the United states congress. Will you allow So~th 

carolina to railroad you into acquiescence, too? 

II. H.R. 2399 

H.R. 2399 is just another termination bill if Congress allows 

south Carolina to take control over Tribal jurisdiction, to subject 

the federal government to state law, to tax a federally recognized 

Tribe (after 99 years), to control the application of federal 

Indian law on the Catawba Reservation, and even to effectively veto 

this bill. A complete understanding of the meaning of R.R. 2399 

cannot be found in this document alone. zt must be read side-byside with south carolina's implementing legislation and the 

settlement Agreement. The following is a point by point discussion 

to illustrate my concerns. It is not a comprehensive analysis. 

A. south Carolina will control when and whether federal law 

becomes effective. 

State implementing legislation does not take effect until 

the Governor of South Carolina has certified federal compliance 

with terms of the Settlement Agreement. You will not find this 

language in H.R. 2399. It is Section 2 of the state implementing 

legislation: 

This act takes effect when the Governor 

certifies that the counties of York and 

Lancaster have taken all actions required of 

them by the Settlement Agreement. However, 

the Governor may not make the certification 

until the Congress of the United States has 
303 

statement of E. Fred SandersjH.R. 2399 

Page three 

passed and the President of the United States 

has signed into law federal implementing legislation which ha also certifies as consistent with the Sattleaent Aqraeaant. 

(Emphasis added.) 

If the Governor of· South Carolina doesn't like any 

changes made in H.R. 2399, he has the power to make the final 

decision by refusing to certify that this federal legislation is 

"consistent with the Settlement Agreement." Governor Carroll 

campbell has put himself in the position of ratifier of the 

settlement. 

B. south carolina will control the application of Federal 

Indian law on the Catawba Reservation. 

Built into all three documents is language which allows 

South Carolina to decide whether any future federal laws concerning 

Indians and Indian nations will apply to catawba. State law is 

given priority. 

The provisions of a federal law enacted after 

the date of this agreement shall not apply in 

the State if the provision materially affects or preempts the application of the laws of the 

State, including application of the laws of 

the State to lands owned by or held in trust 

for Indians, Indian Nations, Indian tribes, or bands of Indians. However, the federal law 

shall apply within the state if the state 

qrants its approval by a law or joint 

resolution enacted by the General Assembly of 

South Carolina and signed by the Governor. 

(Section 19 (b) of H.R. 2399; Section 27-16-

140(A) of South Carolina legislation) 

south carolina refused to allow the application of some existing federal law on the catawba Reservation. Sea section 16 of 

H.R. 2399 which states, "The Indian Gaming Regulatory Act (25 USC 

2701 et seq.) shall not apply to the Tribe." (See also Section 27-

16-110 of the state legislation where tan percent of qross receipts 

must. be paid to South Carolina if the Tribe elects to obtain a "special bingo license.") 

Section 12 (g) ( 4) states that the Indian Child Welfare Act 

of 1978 shall not apply to private adoptions of Indian children 

under the jurisdiction of the Tribe and that state courts are not 

required to apply standards under this Act in determining whether 

the proposed adoption is in the best interests of the child. 

Federal law requires state courts to apply Indian Child Welfare Act 
304 

Statement of E. Fred Sanders/H.R. 2399 

Page four 

standards in order to protect the rights of Indian children. 

The settlement Agreement and the state legislation both 

state that catawba students who attend local schools will be 

treated as non-residents of the school district and will pay 

additional fees. This is in addition to Tribal members paying all 

the taxes other residents of the county pay. Federal Impact Aid 

will offset some of these fees, but not all. 

c. South Carolina will control catawba Tribal Court 

jurisdiction. 

Throughout the jurisdictional provisions in all three 

documents you will find south Carolina control. State control means that Catawba cannot offer full tax benefits to businesses 

located on the reservation. It means that Catawba has no real 

authority over some of the issues most critical to Tribal 

sovereignty. I offer a few examples to illustrate my point: 

1. This settlement allows Tribal members to appeal a 

criminal case from Tribal court to state court: " ••. defendants 

shall have the right to ••• appeal their conviction in tribal court 

cases to the General Sessions Court ••• 11 (Section 11 (b) (2) (B) of 

H.R. 2399). Under federal Indian law, major crimes are under 

federal jurisdiction (18 usc 1151-1152) and lesser offenses are handled by the Tribal Court (25 USC 1301(7); Indian defendants may 

not appeal a Tribal court decision to state court. 

2. This settlement allows civil cases to be appealed 

from Tribal court to state court where a new trial may be granted. 

See Section 12() (3) (D) of H.R. 2399. This allows the state court 

to completely circumvent a Tribal decision, thus undermining Tribal 

sovereignty. Under federal Indian law, civil jurisdiction is 

primarily within the Tribal court system, including appeals. State 

courts have no jurisdiction over civil matters on federal Indian 

reservations. 

3. This settlement allows the state to determine the 

parameters of Tribal court jurisdiction, not federal law. See, 

e.g., Section 1l(b) (1) (C): "The subject matter jurisdiction of the 

court shall be limited to crimes within the jurisdiction of the 

State's Magistrates' Courts •... " 

4. This settlement allows the state to waive Tribal 

sovereign immunity and subjects the Tribe to the South Carolina 

Tort Claims Act, "to the same extent as the political subdivisions 

of the state." (Section 12(f) of H.R. 2399.) Federal Indian law 

provides for Tribal sovereign immunity, unless waived by the Tribal 

government, just like any other sovereign entity. 
305 

Statement of E. Fred Sanders/H.R. 2399 

Paqe five 

D. South carolina will have the power to subject the federal 

government to state law. 

Section 27-16-90(J) of the state legislation states as fol.lows: 

Unless the Tribe and the State aqree upon a valuation formula for pricinq easements over the Reservation, the Secretary is aubject to 

proceedinqa for condaanation and eainent 

doaain to acquire eaa .. enta and riqhta-of-way 

for public purpoaea throuqh the :aeaervation 

under the lawa of South Carolina in 

circumstances where no other reasonable access is available. 

Will Congress allow South carolina the riqht to subject the ·secretary of the Interior to state law? 

E. South carolina has built into all three pieces of 

leqislation a riqht to ta~ Tribal trust lands and Catawba 

qovernmental operations at the end of 99 years. 

H.R. 2399, in Section 18, [(d)(2)(B), (f)(l), (i)(2) and 

(i)(4)(A)J refers to the 99 year provisions. There is no other 

Indian Tribe subjected to these termination provisions anywhere else in Indian country. 

It is difficult to express the depth of my sadness 

reqardinq this 99 year death knell for the Catawba Indian Nation. 

To me, this symbolizes south Carolina's attitude in a way that no other words can express. This 99 year prevision was inserted after 

South Carolina insisted on conditioning their tax exemptions on the 

blood quantum of Tribal members. It may be the lesser of evils, 

but it is still offensive and totally detrimental to the catawba 

Indian Nation. I am also concerned about potential implications for other Indian Tribes if Congress sanctions South Carolina's 

riqht to tax federal trust lands and a federally recognized Tribe 

at the end of 99 years. 

III • . Additional Comments 

Nowhere in the documents will you find a means of collecting the additional $5.5 million which must come from privata funds. 

The state implamentinq legislation only addresses the $12.5 million 

which south Carolina has agreed to contribute toward settlement. 

The right to brinq suit aqainst the state is limited to $12.5 

million, in the event the state fails to pay this amount (Section 

27-16-50). 
306 

Statement of E. Fred Sanders/H.R. 2399 

Page six 

Catawba will relinquish invaluable aboriginal fishing, 

hunting and water rights in exchange for "free" South Carolina 

hunting and fishing licenses for Tribal members, but only for 99 

years. Catawba will be under the regulatory thumb of South 

Carolina's subdivisions, subject to local laws and regulations. 

Land acquisition is so restricted by this agreement as to 

guarantee the Tribe's failure. The federal government is being 

asked to provide 64% of the funding for Catawba's termination 

while South Carolina pays much less {25%) and gains the most. 

I have identified these issues in order to assist you in 

your analysis of H.R. 2399 and with the hope that Congress will 

restore justice for Catawba. If justice is not to be provided in 

this settlement, then I ask that Congress keep the promises made 

35 years ago and restore Catawba's land claim as well as the 

federal relationship. The Catawba people have suffered far too 

long as a result of repressive policies and broken promises. 

Please take this opportunity to correct H.R. 2399 so as to 

protect the Catawba Indian Nation from a devious state government 

and restore our trust in this nation by honoring your word. 
307 

INDEX TO EXHIBITS 

TESTIMONY OF Gn..BERT B. BLUE, CHIEF, 

CATAWBA INDIAN TRIBE OF SOUTH CAROLINA ON B.R.2399, 

· JULY 2, 1993 

Exhibit A - The National Congress of American Indians Resolution In Support of H.R. 

2399 

Exhibit B - Hearings on H.R. 3274, Before 1M Commilree on Interior and Insular Ajfain, 

House of Represenuuives, "To Settle 1M Nonintercourse Claims of tM 

Catawba Indian Tribe of Sourh Corolina," 96th Cong., 1st Sess. at 13S-182 

(1979) @titor's note . ....[o!ay be found in the archival file.:] 

Exhibit C - Catawba Tribe of Sourh CoroUna v. United States, (Tribes's Petition for a 

Writ of Certiorari, dated April 6, 1993) 

Exhibit D- Tribe's Opening Brief in State of South CoroUna v. Catawba Indian Tribe, 

No. 84-782 Before the United States Supreme Court 

Exhibit E - Index of Catawba Historical Documous, Native American Rights Fund 

(February, 1990) 

Exhibit F- BIA Documents Relating to the Tribe's 190S and 1908 Requests 

Exhibit G - 1911 Report of BIA Special Indian Agent Charles Davis 

Exhibit H- 1937 Memorandum to the Commissioner of Indian Affairs from D'Arcy 

McNickle 

Exhibit I- Questions oftM Carawbas' Idenlity and Organil'Jllion .As A Tribe And Right to 

Adopt An IRA. Constillllion, Mem.Sol.Int., Aprilll, 1944, reprinted in ll 

Opinions of IM SoUcitor of IM Depanmenr of IM Interior Relating to Indian 

Affain, 1917-1974, 1261 (Gov't Printing Office, n.d.) 

Exhibit J- Solicitor's 1977 Litigation Request re: Catawba Land Claim 

Exhibit K- Solicitor's 1977 Litigation Report re: Catawba Land Claim 

Exhibit L- NARF Legal Review, Vol. 18, No. 1, Spring 1993 

Exhibit M- Act of August, 11, 1992, 106 Stat. 869 and Legislative History. 

Exhibit N - Sampling of Press ClinDin~ (1992 - 1993) (Editor's note· -May be found 

in the archival Ule.:.J 

Exhibit 0 - Agreement in Principal 

Exhibit P - South Carolina Act implementing Settlement Agreement (June 14, 1993) 

Exhibit Q - Sample summons, complaint and Us pendens for service by mail 
,, ...... O.IIIM~t'IMI -.. ,.,..~., •••• i .IOIOCifl T. ClaOifiOI 

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........ ., .. ToHJfl4•ar 

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c. ... .,..__. a.caFu 

........ ..., .. ,.,. Oldl ........ 

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.......... .,_ .~ ..... Ct.-.fatt 

F.nii~I'O!a•.-t• 

••lltotooeN• 

& OIMoK.,., 01_, .. 

............... 

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M~AMMI•• 

TM\MeO'IiiiMMI 

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02QJ11W DpiJIROII 

MlcftUJ.AnWIIOfl 

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308 

National Congress of American Indians 

Est. 11144 

USOI.C':IOII TO XO. GB 'l-'-"1 

Catawba Indian Tribe Restoration 

and 

Land Cla i m Set~lement 

WBE~, The American Indian and Alaska Tribal Governments and 

people have qathered in Green Bay, Wisconsin !or the aidyear meeting tor the National Con9res:s ot American 

Indians CIICAI) in order to promote the common -interests 

and welt~re ot American Indian and Alaskan Native 

peoples; and 

WKEREAS, IICAI i• the oldest and lar9est intertribal orqanization 

naeionvide reprt~ontativa ot and advoc~t• for national, 

reqional, and local tribal concerns: and 

WBERZAS, the Catawba Tribe enterec2 into a Treaty at. Au9Ust.e., 

Georqia, on November 10, 1753, with ~he Kin9 o! Enqland . vher&by the Tribe rel5erve4 a 14 4, ooo 8Cre tract and cac1ed its aboriqinal territory to the Xinq in return tor the 

King'• aqreemttnt. to protect. forever the Tribe ' s 

possession of i t s lands : and 

WIIERZU, in 1s•o the State o! South <:arolina took the Tribe's 

lands. attemptinq to extinquish forever the Tribe' a title to the 144,000 acre reservation throu9h a Rtr~aty" in which the United States did not participate: and 

wm:uu, the historical rf!cords, from the Rf!Volutionary war to the 

present, reflect u.nequ.ivoeally the Tri be's ettorts to have the United States protect its title to the 144,000 

acre reservation; and . 

WKEREAS, the United Stat~s has consistently retused to help the 

Tribe resolve its land claim, refused to provide federal 

asiH.stanc:e tor the Tribe, and in 1959 secured la9ialation 

rreterrad to as the Catawba Division of Aaaats Act) that 

tsrminated the Tribe's sta~us as a federally racoqnized Indian tribe and liquidated the 3, 434 ac:ra taderal reservation vhich had been purchased by the State or South carolina and transferred to the United States in trust !or the Tribe in accordance with a 1'41 Remorandum at Un4aratandinq be~veen the United Statf!s and the State ot south carolina : and 

Exhibit A 

July l, 1993 

House Hearlnp • H.R. 2399 

800 PeD.D.I)'IvanJa A•euue 8.& • WMhill£ton, D.C. 20003 • (202) 54&-1404 • Fu: (202) 5#-3'141 
309 

WBZa!AI, in response to the Tribe's complaints in the 1950'S th~t 

the Bureau ot Indian Att~irs vas not providing 5ervices to the Tribe, the IIA proposed to the Tribe that its assets be liquidated; and 

-· WKZa!AI, the Tribe vas not represented by counsel and vas vholly 

reliant on its Federal Trustee tor advica and assistance: 

and 

WBZIIEAS, in order to obtain the Tribe's consent tor the lt59 

o Division ot Assets Act, the United States assured the 

Tribe that its longstanding land claim against the State ot south carolina would not be affected by the 

Teraination Act and that the United States vould 

affirmatively protect the land claia; and 

WKZRZAS, the United States tailed to propose or proviae explicit protective language for the Tribe's land claim in the 1959 Catawba Division ot ASsets Act; and 

WBZRZAS, in order tor the 1959 Division ot Assets Act to become 

eftective, congreu required the Bureau of Indian Affairs to obtain a cccond Tribal vou of approval tor the 

termination ot federal atatua and the liquidation of the 

Tribe's reservation, resultin9 in further assurances froa 

the Bureau of Indian Affairs to the Tribe en4 its aeaberc 

that the tribal land claim was protected: and 

WBERZAS, a~ the time conqr•ss w&a consid•rinq the ~ermination oC 

the Catawba Tribe, the vast majority or the Tribe's members did not read o~ vriee and relied on the Bureau ot Indian Affairs to draft the tribal resolution rerleeting 

tribal consent to the termination or federal status and 

the division of tribal assets: and 

WEZRZAS, although the tribal resolution prepared by the Bur8au or Indian Affairs and approved by the Catawba Tribe included ao~oviaion conditioning tribal consent on leaving the 

treaty land claim unartected, the Bureau ot Inclian 

Affair• tailed to include this provision in its 

legialative initiative to Congress: and 

WIZIIEAS, the Tribe 0 •ub•itted a litigation request to the 

Departaent ot the Interior in 1976 vhich vas reviewed by the Solicitor and resulted in the submission or a litigation request to the Departaent of Justice in 1977, 

reco11111ending the Depa.rtment of Justice to institute 

litigation on the Tribe'• behalf, but not before se~tleaent options had been exha~sted: and 

2 
310 

lllltZJU:AB, setelement negoeio.eions initiated in 1977 betwee:. the Tribe and the St4~e of South Carolina failed to achieve 

satisfactory results, causing the Tribe to file suie in re4er~l Di~trict · Court in 1980 seekinq to recover 

possession of its l76l Treaty R•sc~~tion and histo:ic 

trespass damaq~s; and 

WBERZAB, on appeal ot the Federal Court decision in the trib~l 

possessory action the U.S. Supreme court held in 1986 

that th" 1959 Division of Assets Act require» the 

application or the state statute of limitations to the 

Tribe's claia and remanded the case to tha lo~er court"to 

decide what effect the application of the staee staeute of limitations would have on the claim; and 

nzazAs, but for the 1959 Division o! Assets Act no statute of 

limitations would apply to the Tribe's clai~ to recover the 1763 Treaty Reservation, and that as a result of the u.s. supreme court ruling, a significant portion of the 

acreaqe subject to the Tribe's possessory claim vas dismissed from the lawsuit; and 

WHEREAS, the Tribe sued the United States in 1990 see~inq damages for the Covernacnt'a breach ot 1t.s promise to prot•ct th• Tribe 1 s land claim trom the ettee~s ot ~he 1959 Act, but has never had the chance to litiqate the merits o! this claim because the. u.s. Supreme court has decl in•<1 -c.o review the rulinq c! the lo~er court which dismissed the 

Tribe's claim for breach based en procedural 9rounds 

(statute of limitations): and 

WEERZAS, the remand of the po~~esoory elai~ by U.S. Supr~me Court to the court ot Appeals resulted in a determination by 

the lover court that a substantial portion ot the Tribe's 

claim remained alive despite the application of the state statute ot limitations; and 

DEUAS1 ~h~ Tr!ba 15 pre.parat;on to sue over 60,000 individual 

landovnera in South carolina, in 1'92, in order to avoid 

the running of the state statute ot limitations resulted 

in action by Congress to extend the state statute ot limitations tor one ye.ilr ~o October 1, 1993, in or4er for llitel..\.l~a&t!tl\. 11e~v\.la\.J.v!1~ \.v }'~v'-c:c.J. in ••~c.~~J a.n4& 

W3ZREA8, an Aqreement in Principle to settle the Tribe's claim was 

concluded on January 12, 1993, and approved 289•42 by vote ot 't.he tribal 11em.bers.hip on february 20, lSSJ, atter a. series ot educational workshops about 't.he agreement 

sponsored by ~he Tribe on ~he ReServation; and 
311 

~R!AS, the s~a~e s~•~~ce ra~itying and iaplementing t~e 

Agreement in Principle vas signed into law by the 

Governor of Souch carolina on June 14, 1993: and 

'llliEUAII, ~he Agreement in Prineiple, as eml>odied in the Sta~e 

implementing Act and in the Federal bill to settle the 

Claia (H.R. U33 and s __ ), includes the zoestozoation of 

the Tzoibe's federal status, the acquidtion of adcU.tional reservation lands, a tribal trust fun4 coaprise:d of federal state and private funds vhicb vill enable the 

Tribe to participate aeaningfully in the economy on and near the Reservation, and a jurisdictional compac~ 

between the Tribe and the State of South Carolina; 

JIOW TBZRBPOR! IE IT R!SOI.VED, that HCAI hereby expresses its 

support for the Agreement in Principle negotiated by the Catawba 

Tribe and approved by its a..abers, and directs th.'l' Executive 

Director to take those actions necessary to convey to the Oni~ed 

States GoveriUIIent and any other person or entity our endorsement of 

the Agreement in Principle and any legislation proposed for its 

ratification end implementation. 

C E R T I P I C A T I 0 II 

Adopted by the Executive council during the Kid-Year Keet:inq, Green 

Bay, Wisconsin, 3une 27-30, 1993 • 

. . ..,.. 
312 

No. ___ _ 

In The 

Supreme Court of the United States 

October Term, 1992 

--------·-------- CATAWBA INDIAN TRIBE OF SOUTH CAROLINA, 

Petitioner, 

v. 

THE UNITED STATES OF AMERICA, 

Respondent. 

--------·-------- Petition For Writ Of Certiorari 

To The United States Court Of Appeals 

For The Federal Circuit 

--------·-------- PETITION FOR WRIT OF CERTIORARI 

--------·-------- DoN B. MILLER 

Counsel of Record 

NATIVE AMERICAN 

RIGHTS FUND 

1506 Broadway 

Boulder, CO 80302 

(303) 447-8760 

]AY BENDER 

BAKER, BARWICK, 

RAVENEL AND BENDER 

1730 Main Street 

Columbia, SC 29201 

(803) 799-9091 

April, 1993 

RoBERT M. JoNEs 

123 Workman Street 

Rock Hill, SC 29730 

(803) 324-2988 

RICHARD STEELE 

1563 Harbor View Road 

Charleston, SC 29422 

(803) 795-0021 

CHERYL PERKINS 

1517 Gregg Street 

Columbia, SC 29201 

(803) 771-1554 

COCKLE LAW BRlEF PRINTING CO., (8001 225-6964 OR CALL COLLECT (~02) 342-283 

Exhibit C 

July 2, 1993 

House Hearings - H.R. 2399 
313 

i 

QUESTIONS PRESENTED 

1) Where Federal agents contracted to protect the Catawba Tribe's land claim in return for the Tribe's agreement to relieve the Government of financial obligations, 

and the contract was not repudiated by the Government 

until 1985; did the Court of Appeals err in holding that 

the Tribe's 1990 breach-of-contract suit against the Government was barred by the Tucker Act's six-year statute 

of limitations? 

2) Did the Court of Appeals err in holding that the 

statute of limitations required the Tribe to bring suit 

against the Government long before the Tribe had suffered damages and before the extent of injury could possibly be determined? 
314 

ii 

TABLE OF CONTENTS 

Page 

QUESTIONS PRESENTED . ............... ... ..... . 

TABLE OF AUTI-:IORITIES......................... iv 

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 

JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 

STATUTE TO BE CONSTRUED...... . .. .... ....... 2 

STATEMENT OF THE CASE....................... 2 

A. Nature Of The Claim. . . . . . . . . . . . . . . . . . . . . . . . 2 

B. Statement Of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . 4 

REASONS FOR GRANTING THE WRIT . . . . . . . . . . . 11 

A. The Question Presented Is One Of Extreme 

Importance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 

B. The Court of Appeals' Decision Conflicts with 

this Court's Settled Doctrine that a Claimant 

Need Not Resort to Premature or Piecemeal 

Litigation, and Conflicts with the Rationale of 

this Court's Prior Decision in South Carolina v. 

Catawba Indian Tribe . . . . . . . . . . . . . . . . . . . . . . . . . 13 

1. The Tribe could not have maintained suit in 

1968 because it had suffered no injury at that 

time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 

2. After 1972, the Tribe was not required to bring 

suit against the Government until the thirdparty possessory claim was resolved because it 

would have risked res judicata and there was 

no conceivable way to determine the amount of 

damages so that a final account could be struck 

with the Government. . ........... .... ..... 15 

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 
315 

iii 

TABLE OF CONTENTS- Continued 

Page 

APPENDIX .... . .. . ............ . .. . ........ .. ...... 1a 

Appendix A, the decision of the Court of 

Appeals, Catawba Indian Tribe of South Carolina v. 

U.S., 982 F.2d 1564 (Fed.Cir. 1993) ....... . ........ 1a 

Appendix B, the decision of the Claims Court, 

Catawba Indian Tribe of South Carolina v. U.S., 24 

Cl.Ct. 24 (1991) ............. . ............ . ....... 21a 

Appendix C, the Complaint in this case: Catawba Indian Tribe of South Carolina v. The United 

States of America, No. 90-553 L ................... 39a 

Appendix D, this Court's prior opinion in South 

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

(1986) ......... .. ....................... ... ...... 70a 
316 

iv 

TABLE OF AUTHORITIES 

Page 

CASES 

Catawba Indian Tribe of South Carolina v. U.S., 24 

Cl.Ct. 24 (1991) ............... . ......... . . . . .. ..... 1 

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

982 F.2d 1564 (Fed.Cir. 1993) . ....... . ..... . ..... 1, 13 

Catawba Indian Tribe v. South Carolina, 978 F.2d 

1334 (4th Cir. 1992), cert. denied, 61 U.S.L.W. 

3620 (U.S. Mar. 8, 1993) ... . ................... 10, 17 

Catawba Indian Tribe v. State of S.C., 865 F.2d 

1444 (4th Cir. 1989), cert. denied, 491 U.S. 906 

(1989) ................. . . . ...... . .. . ... 10, 11, 14, 17 

Catawba Indian Tribe v. State of S.C., 718 F.2d 

1291 (4th Cir. 1983), aff'd en bane, 740 F.2d 305 

(4th Cir. 1984) .. ... . . .... ... . .. ... . . . . .. .. . .. ... ... 9 

Hansberry v. Lee, 311 U.S. 32 (1940) ......... .. .. . .. 16 

Juda v. United States, 6 Cl.Ct. 441 (1984) . ..... . ..... 19 

Kimball v. Callahan, 493 F.2d 564 (9th Cir.), cert. denied, 419 U.S. 1019 (1974) . . . ... . .... . ... . . . ... . . 19 

Menominee Tribe of Indians v. United States, 179 

Ct.Cl. 496, 388 F.2d 998 (1967), aff'd, Menominee 

Tribe v. United States, 391 U.S. 404 (1968) . .. ..... 16 

Menominee Tribe v. United States, 391 U.S. 404 

(1968) . . ... .. .. . .. . ..... . . . ... ... ... . ..... . .. . . 16, 18 

Scheuer v. Rhodes, 416 U.S. 232 (1974) ............. 13 

Seminole Nation v. United States, 316 U.S. 286 

(1941) . ....................... . ......... . .. .. ... .. 12 

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

498 (1986) ...................... . ........ . .. . . passim 
317 

v 

TABLE OF AUTHORITIES- Continued 

Page 

Terteling v. United States, 167 Ct.Cl. 331, 334 F.2d 

250 (1964) ................................. 14, 18, 19 

United States v. Dickinson, 331 U.S. 745 (1947) .. passim 

W.R. Cooper Gen. Contractor, Inc. v. United 

States, 843 F.2d 1362 (Fed.Cir. 1988) ....... . ....... 13 

STATUTES AND RULES 

25 U.S.C. §§ 931-938. Catawba Tribe of South Carolina: Division of Assets Act .................... 1, 3 

28 u.s.c. § 1254(1) (1976) ................. .. ......... 1 

28 u.s.c. § 1491 ..................................... 2 

28 U .S.C. § 1505 ..................................... 2 

28 u.s.c. § 2415 (1982) .............................. 8 

28 U.S.C. § 2501 (1988) ............................. 2 

United States Claims Court Rule 12(b)(l) ............. 1 

LEGISLATIVE MATERIALS 

H.R. Rep. No. 910, 86th Cong., 1st Sess.; reprinted 

in 1959 U .S.C.C.A.N. 2671 ........................ 7 

105 Cong. Rec. 5462 (1959) ........................... 7 

MISCELLANEOUS 

48 Fed.Reg. 13920 (1983) .................... . ........ 8 

F. Cohen, Handbook of Federal Indian Law (1982 ed.) ..... 5 

Note, South Carolina v. Catawba Indian Tribe: Terminating Federal Protection with "Plain" Statements, 

72 Iowa L. Rev. 1117 (1987) .................... 18, 19 
318 

PETITION FOR WRIT OF CERTIORARI 

Petitioner respectfully prays that a Writ of Certiorari 

issue to review the judgment and opinion of the United 

States Court of Appeals for the Federal Circuit entered on 

January 6, 1993. 

--------·--------

OPINIONS BELOW 

On August 20, 1991, the United States Court of Federal Claims granted the Government's motion to dismiss 

under USCC Rule 12{b)(1). Catawba Indian Tribe of South 

Carolina v. U.S., 24 Cl.Ct. 24 (1991) (Appendix B at 21a). 

The Court of Appeals affirmed. Catawba Indian Tribe of 

South Carolina v. U.S., 982 F.2d 1564 (Fed.Cir. 1993) 

(Appendix A at 1a).I 

--------·--------

JURISDICTION 

The Court of Appeals entered the judgment sought to 

be reviewed on January 6, 1993. This Court has jurisdiction to review the final decision of the Court of Appeals 

under 28 U.S.C. § 1254(1) (1976). 

--------·--------

t This Court's prior decision in a related case, South Carolina v. Catawba Indian Tribe, 476 U.S. 498 (1986) (holding that 

state statutes of limitations applied to petitioner's possessory 

land claim as a result of the 1959 Catawba Tribe of South Carolina: Division of Assets Act, 25 U.S.C. §§ 931-938 (the 1959 

termination act}}, is included herein as Appendix D at 70a. 

1 
319 

2 

STATUTE TO BE CONSTRUED 

The decision below construes 28 U.S.C. § 2501 (1988) 

which provides: 

Every claim of which the United States 

Claims Court has jurisdiction shall be barred 

unless the petition thereon is filed within six 

years after such claim first accrues. 

---------·---------

STATEMENT OF THE CASE 

This is an action by an Indian tribe for money damages against the United States. Jurisdiction in the Court of 

Federal Claims is conferred by 28 U.S.C. §§ 1491 and 

1505. The Tribe's principal claim against the United States 

is based upon the Government's breach of an implied-infact contract to protect the Tribe's claim to possession of 

144,000 acres of land that were reserved by the Tribe in 

treaties with the Crown. 2 

A. Nature 0£ The Claim. 

In 1960, authorized Federal agents made a bargain 

with the Catawba Tribe. If the Tribe would agree to 

release the Government from financial and management 

2 The facts relevant to the possessory land claim, including 

the establishment of the 1763 Treaty Reservation, the Tribe's 

illegal dispossession by the State of South Carolina in 1840, and 

the eventual establishment of Federal supervision in 1943 are 

set forth in the Court's majority and dissenting opinions in 

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

(Appendix D at 86a) and in the Tribe's complaint in this case. 

(Appendix C at 39a). 
320 

3 

obligations it had undertaken in a 1943 agreement with 

the Tribe, the Government would protect the Tribe's land 

claim. This was a tacit understanding between the Government and the Tribe that is demonstrated by the conduct of the parties and the surrounding circumstances.3 

The Government's 1960 promise was not qualified in 

any way. The Government did not say, and the Tribe did 

not agree, that the land claim would continue to be viable 

for only a certain period, after which the claim could be 

destroyed if the Tribe took no action. The parties understood that the claim would be protected. This contract 

implied-in-fact required the Government to either file a 

protective suit on the Tribe's behalf or, at the very least, 

notify the Tribe that the Tribe would have to act on its 

own to protect the claim because it might now be subject 

to harm as a result of the passage of time. 

But the Government took no action to protect the 

land claim. The Government did not file the claim on the 

Tribe's behalf. It waited until 1985 to notify the Tribe that 

it would not act to protect the claim, and that, in the 

Government's view, the claim had not been protected 

from the passage of time since the termination act became 

effective in 1962. In 1986, this Court ruled that the 1959 

3 Congress had required that tribal consent be obtained by 

providing in the 1959 termination act that the act would not 

become effective until a majority of the adult members subsequently agreed. 25 U.S.C. § 931. Congress had been informed of 

Federal agents' pre-1959-Act assurances to the Tribe that the 

claim would not be jeopardized and of the Tribe's formal resolution expressly conditioning its consent to termination on the 

status of the land claim being unaffected. 
321 

4 

Act resulted in the application of state statutes of limitations to the Tribe's claim. 4 In 1992, the Court of Appeals 

for the Fourth Circuit affirmed the dismissal of thousands 

of acres from the claim based upon possession adverse to 

the Tribe since the effective date of the termination act in 

1962. In this case, the Tribe seeks indemnification from 

the United States for the value of that portion of the 

Tribe's possessory claim that is barred as a result of the 

running of the state statute of limitations. 

B. Statement Of Facts 

In 1953, only ten years after the Government had 

contracted with the Tribe and the State to provide Federal 

services to the Catawba Tribe, Complaint 1 16y (Appendix C at 51a), Congress drastically altered the course of 

Federal Indian policy. House Concurrent Resolution No. 

108 declared the Congressional policy of terminating the 

Federal trust relationship with Indian tribes. Pursuant to 

4 This Court stated in 1986 that it perceived no contradiction between the applicability of the state statute of limitations 

and the Government's pre-1959-Act assurance that the status of 

the claim would be unaffected by the 1959 Act. South Carolina v. 

Catawba Indian Tribe, supra, 476 U.S. at 510. This Court rejected 

the argument that the 1959 Act extinguished the land claim and 

"assume[d] that the status of the claim remained exactly the 

same immediately before and immediately after the effective 

date of the Act, but that the Tribe thereafter had an obligation to 

proceed to assert its claim in a timely manner . ... " ld. 

(emphasis added). This Court assumed that the obligation to 

bring suit was the Tribe's, but whether the Government had 

contractually undertaken a post-1959-Act obligation to bring 

suit on the Tribe's behalf, or otherwise protect the claim, was not 

before this Court in 1986. 
322 

5 

that policy, the Government in 1954 identified the Catawba Tribe as a likely candidate for termination. South 

Carolina v. Catawba Indian Tribe, 476 U.S. at 503. 

In 1958, in recognition of the disastrous effects termination was having on Indian people, Congress and the 

Eisenhower Administration modified the termination 

policy. The Government rejected coercive termination of 

Indian tribes in favor of a policy that permitted termination based only on informed tribal consent. Complaint 

1 20 (Appendix C at 52a). See F. Cohen, Handbook of 

Federal Indian Law 182 (1982 ed.). 

Shortly thereafter, the Department of the Interior 

(Interior) dispatched Special Agent Raymond Bitney to 

the Catawba Tribe for the purpose of securing tribal 

consent to termination of federal supervision. Complaint 

1: 28 (Appendix C at 54a). The Federal Government had 

failed to provide services and funding under the 1943 

Memorandum of Understanding. As a result, the Tribe 

was unable to provide housing or productively utilize its 

restricted federal reservation lands, and tribal dissatisfaction was running high. Complaint 1 25 (Appendix C at 

53a). 

Federal officials played on this dissatisfaction to garner tribal support for the termination proposal. They told 

the Tribe that while they were powerless to provide additional services, they could facilitate a removal of federal 

restrictions from the federal reservation. This would 

result in the Indians acquiring unrestricted fee title which 

they could then mortgage and thereby secure the funds to 

improve their housing and to finance farming operations. 

I d. 
323 

6 

Agent Bitney pressed Interior's case for termination 

to the Indians in a door-to-door, family-by-family campaign during the last quarter of 1958. Complaint 1 27 

(Appendix C at 53a). His reports contain a detailed narrative of the issues discussed at each visit. They show that 

during these meetings several tribal officials expressed 

concern about the Tribe's land claim against the State. 

One tribal official stated that Interior's plan could not go 

forward until the land claim was resolved. Agent Bitney 

assured them that the land claim would in no way be 

jeopardized by Interior's proposal to withdraw federal 

supervision. Complaint 'li 27 (Appendix C at 53a). 

The Tribe's resolution, drafted by Agent Bitney, 

expressly conditioned the Tribe's support for the legislation on there being nothing in the legislation impairing 

the status of the Tribe's land claim. Complaint 1 30 

(Appendix C at 54a). After the Tribe adopted the resolution, Interior sent it to Congressman Hemphill. The Congressman returned it to Interior, requesting assistance in 

drafting a bill "to accomplish the desire [of the Tribe] set 

forth in the resolution." Complaint 11 30, 31 (Appendix 

C at 54a, SSa). 

The Congressman and Interior officials thereafter 

presented the bill to the Tribe, which at no time in the 

process was represented by counsel. At a March 28, 1959 

tribal meeting, they read the bill line by line to the Tribe 

and assured them that it had been drafted to carry out the 

intent of the tribal resolution. Complaint <j[«JJ 22, 34 

(Appendix Cat 52a, 55a). According to its official minutes 

of the meetings, the Tribe understood the draft legislation 

to be a "contract that was drawn up by the Bureau of 
324 

7 

Indian Affairs." It approved the "contract" at the March 

28, 1959 meeting. ld. 

Representative Hemphill's introductory remarks 

emphasized to Congress that the Tribe's consent was 

contained in the January 3, 1959 resolution. 105 Cong. Rec. 

5462 (1959). At the subcommittee hearings on the bill, the 

Congressman and Interior officials emphasized that the 

bill had been drafted to conform to the desires of the 

Tribe as expressed in the January 3, 1959 resolution. Congress took note of the January 3 and March 28 endorsements of the bill by the Tribe. H.R. Rep. No. 910, 86th 

Cong., 1st Sess.; reprinted in 1959 U.S.C.C.A.N. 2671, 2672; 

Complaint 11 39, 40 (Appendix C at 57a). 

Presumably to ensure that the Federal policy of 

informed tribal consent was implemented, Congress 

amended the bill to provide that it would not become 

effective until a majority of the adult members of the 

Tribe agreed to accept the division of assets in accordance 

with the Act's provisions. With that important exception, 

Congress enacted the same bill that had been read line by 

line to the Tribe. 

The termination act became law on September 21, 

1959. Once again Government agents were dispatched to 

the Tribe to secure the consent required by Congress. 

Federal agents secured the agreement of tribal members 

by assuring them that their land claim would be protected. Complaint 1 44 (Appendix C at 58a). By June 30, 

1960, Government agents had collected enough signatures to permit Interior to announce that the Tribe had 
325 

8 

accepted termination. Pursuant to the Act, Interior distributed the 3,434 acres acquired in 1943 and liquidated other 

tribal assets. On July 1, 1962, the Secretary of the Interior 

formally decreed that termination of the Catawba Tribe was 

final. Complaint 1<Jl 41, 42 (Appendix C at 58a). 

In 1977, in a formal litigation request to the Department of Justice, the Solicitor of the Department of the 

Interior concluded that: 1) the Catawba Tribe had been 

dispossessed of its treaty reservation in violation of Federal law; 2) the 1840 state treaty was void; 3) the Tribe 

could establish a prima facie case for repossession of its 

reservation under the Nonintercourse Act; 4) "the United 

States has had a duty under the Non-intercourse Act, 

since the Treaty claim accrued in 1840, to take action to 

protect the Catawba's rightful ownership of the 1763 

reservation;" and 5) "this duty was not affected by the 1959 

Act." Complaint 'I 52 (Appendix C at 60a) (emphasis 

added). "The litigation request was later withdrawn in an 

effort to emphasize that the Interior Department favored 

a negotiated settlement if at all possible .... " South 

Carolina v. Catawba Indian Tribe, 476 U.S. 498, 518 (1986) 

(Justice Blackmun, dissenting).s Thereafter, efforts to legislatively settle the claim failed. Id. 

5 On March 31, 1983, the Secretary of the Interior included 

the damages portion of the Catawba Tribe's land claim on the 

list of potentially meritorious Indian claims to be investigated 

by the Department of the Interior pursuant to 28 U.S.C. § 2415 

(1982). 48 Fed.Reg. 13920 (1983). Interior's inclusion of the claim 

on the§ 2415 list meant that§ 2415's Federal statute of limitations would not begin to run on the claim until the Department 

formally notified the Tribe that it would not pursue the claim on 

the Tribe's behalf. The Catawba land claim remains on the 

§ 2415 list. 
326 

9 

In 1980, the Tribe filed an ejectment action in Federal 

District Court seeking to recover possession of its treaty 

reservation based on its unextinguished, recognized 

Indian title. In 1983, the district court dismissed the claim 

based on the 1959 Act, concluding, among other things, 

that the Act resulted in the application of state statutes of 

limitations to the Tribe's claim and that they operated to 

bar the claim in its entirety. The Court of Appeals for the 

Fourth Circuit reversed, holding that the 1959 Act did not 

extinguish the claim nor had state law become applicable 

to the claim as a result of the Act. Because it held state 

law inapplicable to the claim, the Court of Appeals did 

not decide what effect South Carolina statutes of limitations would have on the claim. Catawba Indian Tribe v. 

State of S.C., 718 F.2d 1291 (4th Cir. 1983), aff'd en bane 740 

F.2d 305 (4th Cir. 1984) (Catawba I). 

The State petitioned this Court for a Writ of Certiorari. This Court requested the views of the Solicitor 

General. In May 1985, the Department of Justice, overruling Interior's views, urged this Court to grant certiorari 

and reverse the Court of Appeals on the grounds that the 

1959 termination act had resulted in the application of 

state statutes of limitations to the Tribe's land claim. This 

was the first notification received by the Tribe that the 

Government would not take action to protect the claim 

and believed that the claim had been unprotected since 

1962. 

This Court granted certiorari and reversed in 1986. 

Reviewing the single issue of whether the 1959 Act 

applied state statutes of limitations to the Tribe's Federal 

cause of action, this Court, in a 6-to-3 decision, determined that the statute's plain language compelled the 
327 

10 

application of state law limitations periods to the claim. 

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

The case was remanded to the Court of Appeals to determine the effect of state law limitations on the Tribe's 

claim. 

In 1989, the Court of Appeals ruled that South Carolina's 10-year statute of limitations would operate to bar 

the Tribe's claim to those lands where the claimant could 

prove adverse possession for a continuous 10-year period 

between 1962, when the termination act became effective, 

and 1980, when the Tribe filed suit. Because tacking successive periods of adverse possession to meet the 10-year 

statutory period is not permitted by South Carolina law, 

the Tribe's claim would not be barred as to lands not 

continuously possessed adversely for 10 years. Catawba 

Indian Tribe v. State of S.C., 865 F.2d 1444 r(4th Cir. 1989), 

cert. denied, 491 U.S. 906 (1989) (Catawba II). 

On remand, the district court, on July 19, 1990, found 

numerous defendants' evidentiary showings to be sufficient to prove adverse possession for 10 years. It then 

dismissed the Tribe's claims to parcels totaling 10 to 20% 

of the 1763 Treaty Reservation. On the Tribe's appeal, the 

Court of Appeals for the Fourth Circuit affirmed in part, 

reversed in part, and vacated and remanded in part. Catawba Indian Tribe v. South Carolina, 978 F.2d 1334 (4th Cir. 

1992) (en bane), cert. denied, 61 U.S.L.W. 3620 (U.S. Mar. 8, 

1993) (No. 92-1088) (Catawba III). 

In 1990, within six years of the Government's 1985 

notice, this Court's 1986 decision that state statutes of 

limitations applied, and the Fourth Circuit's decision in 
328 

11 

Catawba II that some portion of the Tribe's claim would be 

barred, the Tribe filed suit against the United States. 

---------·---------

REASONS FOR GRANTING THE WRIT 

A. The Question Presented Is One Of Extreme Importance. 

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

505 (1986), this Court granted the State of South Carolina's petition "because of the importance of the case." 

Holding that state statutes of limitations applied to the 

Tribe's claim, this Court observed that the Government's 

pre-1959-Act assurances that the claim would not be jeopardized by termination were not inconsistent with the 

application of state statutes of limitations. In dissent, 

Justice Blackmun, joined by Justices O'Connor and Marshall, observed that: 

Today's decision seriously handicaps the Catawbas' effort to obtain even partial redress for the 

illegal expropriation of lands twice pledged to 

them, and it does so by attributing to Congress, 

in effect, an unarticulated intent to trick the 

Indians a century after the property changed 

hands. From my perspective, there is little to be 

proud of here. 

Because I do not believe that Congress in 

1959 expressed an unambiguous desire to 

encumber the Catawbas' claim to their 18thcentury treaty lands, and because I agree with 

Justice Black that "[g]reat nations, like great 

men, should keep their word," ... I do not join 

the judgment of the Court. 
329 

12 

ld. at 529 (citation omitted). 

At the very core of this case is the very important 

question whether this great nation will keep its word to a 

small, unrepresented Indian Tribe that relied in good 

faith on its bargain with the Government. Whether the 

United States fulfills its contractual obligations is always 

a matter of importance. But where a case involves contractual obligations incurred in the exercise of Congress' 

plenary power over Indian affairs that affect the very 

survival of valuable treaty property rights, the issues 

assume special importance. As this Court noted over 50 

years ago, in dealing with treaty obligations to Indians, 

the United States "has charged itself with moral obligations of the highest responsibility and trust." Seminole 

Nation v. United States, 316 U.S. 286, 297 (1941). 

And it cannot rightly be said that these contractual 

obligations are of lesser importance in this case because 

they were undertaken in the course of terminating Federal supervision of the Catawba Tribe. Congress plainly 

intended that the Tribe benefit from the 1959 Act and that 

its property rights be protected. The lower court's decision in this case, holding that the six-year statute of 

limitations begins to run in favor of the Government long 

before the existence of an injury or the amount of damages could possibly be determined, has broad implications for the administration of Indian affairs and the 

accountability of the Government to its Indian beneficiaries. 

In 1985, in a case where the Catawba Tribe was 

seeking redress in a manner consistent with the assurances of the Government, this Court recognized the 
330 

13 

importance of the issue and granted review. Today, this 

case is no less important simply because the rights of 

third-party landowners are not at stake. The Court of 

Appeals' ruling results in manifest injustice to the Catawba Indian Tribe by permitting the Government to 

remain wholly unaccountable for its breach of contract. 

The Government benefited from its bargain with the Catawba Tribe, and the Tribe should not be denied at least 

an opportunity to have its claim heard. 6 

The issues presented are of paramount importance to 

the Catawba Tribe, to Indian tribes generally, and to the 

administration of Indian affairs. 

B. The Court of Appeals' Decision Conflicts with this 

Court's Settled Doctrine that a Claimant Need Not 

Resort to Premature or Piecemeal Litigation, and 

Conflicts with the Rationale of this Court's Prior 

Decision in South Carolina v. Catawba Indian Tribe. 

The Court of Appeals erroneously held that the Tribe 

was required to file suit against the Government within 

six years of the effective date of the termination act, i.e., 

by July 1, 1968. Catawba Indian Tribe of South Carolina v. 

U.S ., 982 F.2d 1564, 1571 (Fed.Cir. 1993). Alternatively, the 

lower court held that the Tribe's suit had to be filed by 

6 The facts alleged in the Tribe's complaint must be taken as 

true and "[i]f these facts reveal any possible basis on which the 

[Tribe] might prevail, the motion must be denied." W.R. Cooper 

Gen . Contractor, Inc . v. United States, 843 F.2d 1362, 1364 

(Fed.Cir. 1988); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 

Because the facts in this case reveal a strong basis for recovery, 

the lower court erred in denying the Tribe an opportunity to 

offer evidence to support its claim. 
331 

14 

July 1, 1978 at the latest, that date being six years after 

the first of the adverse possessors perfected title against 

the Tribe. Id. 

1. The Tribe could not have maintained suit in 1968 

because it had suffered no injury at that time. 

In holding that the Tribe's claim against the Government accrued in 1962, the Federal Circuit ignored the 

Court of Claims' long-standing principle that "[i]t is too 

well established to require citation of authority that a 

claim does not accrue until the claimant has suffered 

damages." Terteling v. United States, 167 Ct.Cl. 331, 338, 

334 F.2d 250, 254 (1964); United States v. Dickinson, 331 

u.s. 745 (1947). 

In this case, the Catawba Tribe could not possibly 

have brought suit in 1968. Before 1972, the Tribe had no 

conceivable claim against the Government because no 

portion of its third-party land claim had even arguably 

been barred. Catawba II, supra, 865 F.2d at 1456. That the 

mere application of state law was not an actionable injury 

is established by this Court's 1986 statement that there 

was no contradiction between the application of state 

statutes of limitations and Government assurances that 

the status of the land claim would not be affected. South 

Carolina v. Catawba Indian Tribe, 476 U.S. 498, 510 (1986). 

The lower court misunderstood the very nature of 

the Tribe's claim. The actionable injury in this case is not 

the application of state law. Rather, it is the Government's 

breach of its agreement to protect a claim that had 

become subject to state law in return for the Tribe's 
332 

15 

consent to termination. As a result of this misunderstanding, the lower court failed altogether to consider the 

Tribe's breach of implied-in-fact-contract claim. The opinion below contains no analysis relevant to the Government's post-1959-Act obligation to bring suit on the 

Tribe's behalf or to repudiate its bargain in a timely 

fashion so that the Tribe itself might act to protect its 

claim. 

2. After 1972, the Tribe was not required to bring 

suit against the Government until the thirdparty possessory claim was resolved because it 

would have risked res judicata and there was no 

conceivable way to determine the amount of 

damages so that a final account could be struck 

with the Government. 

Although the principles of United States v. Dickinson, 

331 U.S. 745 (1947) control the analysis of post-1972 

accrual, they were ignored by the lower court. Dickinson 

establishes that where the risk of res judicata exists and 

the existence and extent of damages are uncertain as a 

result of circumstances controlled and methods chosen by 

the Government, the claimant need not resort to piecemeal or premature litigation. Suit may properly be postponed until the consequences of the Government's action 

"have so manifested themselves that a final account may 

be struck." Id. at 749. 

The lower court failed to consider the Tribe's argument that any suit brought against the United States prior 

to resolution of the third-party possessory claim would 

have subjected the Tribe to the risks of res judicata . If the 

Tribe had brought suit in 1977, the Government would 
333 

16 

have defended the suit on the grounds that the 1959 Act 

did not extinguish the land claim or subject it to state law 

time bars, i.e., that the Government had fulfilled its contractual and trust obligations by fully protecting the land 

claim. That was the Government's official position from 

1977 to 1985. Had the Government prevailed in such a 

suit,7 and had the Tribe then pursued its possessory claim 

against the third-party possessors of the land, the thirdparty defendants in the possessory claim would not have 

been bound by the Court of Claims' ruling that the 1959 

Act had no effect on the Tribe's land claim. Hansberry v. 

Lee, 311 U.S. 32 (1940). If the federal district court in the 

possessory claim had then ruled in the defendants' favor 

and held, contrary to the Court of Claims, that the 1959 

Act did in fact extinguish or limit the possessory claim, 

then the Tribe would have been barred by res judicata 

from again pursuing its breach of contract and trust 

claims against the Government. 

In addition, the lower court's alternative holding that 

the claim accrued in 1972 when the 10-year adverse possession period ran on some parcels requires the Tribe to 

bring suit before damages could possibly be determined 

so that a final account could be struck. The Federal Circuit's analysis failed to consider that South Carolina's 10-

year statute operates as an affirmative defense. Under 

7 In 1967, the Court of Claims had held in similar circumstances in Menominee Tribe of Indians v. United States, 179 

Ct.CI. 496, 388 F.2d 998 (1967), afj'd, Menominee Tribe v. United 

States, 391 U.S. 404 (1968), that the Menominee Termination 

Act's general application of state law to that tribe did not subject the Menominee's treaty right to hunt and fish to the application of state law. 
334 

17 

South Carolina law, legal title to the disputed lands is 

held by the Tribe and as a result the Tribe is entitled to a 

presumption of possession. The third-party claimants' 

actual possession is deemed to be in subordination to the 

legal title unless and until each claimant proves, by clear 

and convincing evidence, open, hostile, notorious, continuous, and exclusive possession for 10 years without 

tacking. Catawba II, supra. 

In circumstances where: a) a claimant waives his 

affirmative defense; or, b) land has been unoccupied; or, 

c) land has been possessed for less than 10 continuous 

years without tacking between 1962 and 1980; or, d) an 

adverse claimant fails to prove the character and duration 

of his possession by clear and convincing evidence; legal 

title will remain in the Tribe. Thus, with respect to that 

parcel of land, the Tribe's possessory claim would remain 

viable and the Tribe would have suffered no damage as a 

result of the Government's breach of contract. Catawba II, 

supra; Catawba JII, supra. 

Plainly, such a fact-based determination of rights 

between the Tribe and third-parties could not take place 

in a Court of Claims suit between the Tribe and the 

Government. After 1972, final resolution of the thirdparty possessory claim became a prerequisite to fixing the 

Tribe's damages so "that a final account may be struck." 

United States v. Dickinson, supra, 331 U.S. at 749. This 

principle was applied by the Court of Claims to the 

implied-in-fact-contract claim in Terteling: "Dickinson 

. . . teaches us that these contractors had the right to wait 

until their full obligations were ascertainable before 

bringing suit therefor." Key to this analysis is the fact, 
335 

18 

relied on heavily in Dickinson and Terteling, that the Government controlled the circumstances and chose the 

method that created the uncertainty. In such a situation, 

this Court recognized the unfairness of placing on the 

claimant the onus of determining the decisive moment 

when the fact of injury could no longer be in controversy. 

Dickinson, supra at 747-49. 

The lower court ignored the rationale of Dickinson 

and Terteling and failed altogether to consider the uncertainty faced by the Tribe as a result of the Government's 

choice of methods.

8 In holding that the claim in Terteling 

8 While the lower court charged the Tribe with knowledge 

in 1962 of the effects of the 1959 Act, South Carolina v. Catawba 

Indian Tribe was a case of first impression. The effect of a 

termination act on a Nonintercourse Act land claim had not 

previously been before the courts and its resolution wa s certainly not clearly foreshadowed. An en bane Court of Appeals 

for the Fourth Circuit ruled in 1984 that the 1959 Act did not 

apply state law to the claim, Catawba Indian Tribe v. South 

Carolina, 740 F.2d 305 (4th Cir. 1984), and three dissenting 

Supreme Court Justices likewise believed that Congress 

intended to leave the Catawba's land claim wholly exempt from 

the 1959 Act's general application of state law. Indeed, "[p ]rior 

to [the Supreme Court's decision in] Catawba, the federal courts 

had not held a Nonintercourse claim susceptible to a state law 

time bar." Note, South Carolina v. Catawba Indian Tribe: Terminating Federal Protection with "Plain" Statements, 72 Iowa L. Rev. 

1117, 1122 (198n citing Clinton and Hotopp, judicial Enforcement of the Federal Restraints on Alienation of Indian Land: The 

Origins of the Eastern Land Claims, 31 Me. L. Rev. 17 (1979). Nor 

had the federal courts ever held that unextinguished treaty 

rights or undistributed tribal property, as distinguished from the 

distributed property of individual Indians, were subject to 

application of state law, even when considering the effect of 

termination legislation on such rights and property. See, Menominee Tribe v. United States, 391 U.S. 404 (1968); Kimball v. 
336 

19 

accrued "only when the litigation ended [and] the contractors could determine the total amount of the litigation 

expenses . . . ," i.e., when the Supreme Court denied 

certiorari, id, 334 F.2d at 254, the Terte/ing court relied 

heavily on the fact that while the Government action that 

gave rise to the injury may have been lawful, the Government had a choice of methods of fulfilling its contract to 

furnish gravel pit sites. Had it chosen a more certain 

method, the injury to the contractors "would probably 

not have resulted," id. But the Government chose a 

method that created uncertainty. The contractors took 

action in reliance on the contract implied-in-fact and the 

Government was held to bear the risk that damages 

would occur as a result of the Government's choice of 

methods. See ]uda v. United States, 6 Cl.Ct. 441, 451 (1984) 

("The doctrine announced in Dickinson and elaborated by 

the Court of Claims in a variety of factual contexts has 

application to the facts of this case," alleging contract 

implied-in-fact imposing fiduciary obligations). Because 

the Government had control of and chose the method of 

carrying out its obligations to protect the claim, the principle of Dickinson applies in this case to permit suit to be 

postponed until damages have been suffered and their 

amount can be fixed. As long as the Tribe reasonably 

continued to rely on the Government's assurances, the 

Government would stand in the role of an indemnifier 

under its contract implied-in-fact for whatever damages 

the Tribe suffered as a result of the Government's breach. 

Callahan, 493 F.2d 564 (9th Cir.), cert. denied 419 U.S. 1019 (1974); 

Note, Terminating Federal Protection with "Plain " Statements, 

supra. 
337 

20 

The Government's ability to fulfill its contractual 

duty by simply notifying the Tribe that its claim might be 

subject to harm as a result of the passage of time ceased 

in 1972, when the shortest of the state statutes of limitations arguably became applicable. Before 1972, the Government could have simply notified the Tribe and, 

regardless of whether the Tribe actually brought suit, the 

Government would have been discharged of any liability. 

After 1972, any repudiation by the Government of the 

1960 bargain would have required the Tribe to file suit 

not against the Government, but against the third-party 

possessors of the land in order to mitigate damages. 

While the Tribe might have maintained suit against 

the Government after July 1, 1972, Dickinson makes it 

plain that the Tribe was not required to bring suit at that 

time and thereby face the risk of res judicata and the 

uncertainty of the damage. Id., 331 U.S. at 749. Resolution 

of the third-party possessory claim had become a prerequisite to determining both the existence and amount of 

damages so that a final account could be struck. While 

the Government might lessen the amount of its exposure 

by repudiating its agreement with the Tribe sooner rather 

than later, it could no longer totally avoid the risk that its 

actions, or failure to act, might result in extinguishment 

of a portion or all of the Tribe's title. And, as long as the 

Tribe's continued reliance on its contract with the Government was reasonable, that risk was the Government's 

to bear under its contract implied-in-fact. 

Until the Government's 1985 amicus curiae brief notified the Tribe that the Government had not and would 

not act to protect the claim, the Tribe's reliance on its 1960 

contract with the Government was reasonable. In 1959, 
338 

21 

after the bill applying state law was drafted, the Government led the Tribe to believe that application of State law 

would not impair its claim in any way. In 1960, Government agents secured the Congressionally-mandated tribal 

consent in return for assurances that the claim would be 

protected. The Government had affirmatively undertaken 

both the duty of protecting the claim and the role of 

advising its unrepresented beneficiary and gave no notice 

or indication that its actions, or failure to act, might harm 

that which it had promised to protect. 

In 1977, the Interior Solicitor expressly affirmed the 

Government's duty to protect the claim and recommended that the Government fulfill its obligation to preteet the claim by bringing suit on the Tribe's behalf. In 

1983, Interior placed the damages portion of the Tribe's 

land claim on the list of claims against which the applicable federal statute of limitations would not begin to run 

until the Government notified the Tribe that it would not 

pursue the claim on the Tribe's behalf. The Solicitor's 

1977 conclusion that the Government had a duty to protect the claim remained the official position of the United 

States until the Justice Department overruled Interior in 

1985 and informed this Court that it believed that the 

1959 Act had resulted in the application of state statutes 

of limitations to the Tribe's claim.9 

---------·---------

9 In 1980, notwithstanding that the Tribe's litigation request 

was still pending with the Department of the Interior and that 

the Government's official position continued to be that the claim 

was fully protected, the Tribe for its own reasons filed its 

third-party land claim. The effect of this filing was to mitigate 

damages against the Government well in advance of the Government's belated 1985 notice repudiating its 1960 bargain. 
339 

22 

CONCLUSION 

For the foregoing reasons, petitioner respectfully 

prays that this Court issue a Writ of Certiorari and review 

the erroneous judgment of the court below. 

Dated this 6th day of April, 1993. 

Respectfully submitted, 

DoN B. MILLER 

Counsel of Record 

NATIVE AMERICAN RIGHTS FuND 

1506 Broadway 

Boulder, CO 80302 

(303) 447-8760 

}AY BENDER 

BAKER, BARWICK, 

RAVENEL AND BENDER 

1730 Main Street 

Columbia, SC 29201 

(803) 799-9091 

RoBERT M. JoNEs 

123 Workman Street 

Rock Hill, SC 29730 

(803) 324-2988 

RICHARD STEELE 

1563 Harbor View Road 

Charleston, SC 29422 

(803) 795-0021 

CHERYL PERKINS 

1517 Gregg Street 

Columbia, SC 29201 

(803) 771-1554 
340 

la 

APPENDIX A 

The CATAWBA INDIAN TRIBE of SOUTH CAROLINA, 

Plaintiff-Appellant, 

v. 

The UNITED STATES, Defendant-Appellee. 

No. 92-5018. 

United States Court of Appeals, 

Federal Circuit. 

Jan. 6, 1993. 

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

Katherine L. Adams, Environment and Natural 

Resources Div., Dept. of Justice, DC, argued, for defendant-appellee. With her on the brief were Miles E. Flint, 

Deputy Asst. Atty. Gen., J. Carol Williams and Andrew 

M. Eschen, Attorneys. 

Before MAYER, MICHEL, and PLAGER, Circuit 

Judges. 

PLAGER, Circuit judge. 

In this case, the Catawba Indian Tribe (the Tribe) 

alleges a series of wrongful acts by the United States 

Government which, the Tribe contends, caused substantial financial harm to the Tribe through the loss of some, 

if not all, of their ancestral lands. 

After having failed in its effort to recover the actual 

lands themselves, 1 the Tribe now asks compensation for 

1 See South Carolina v. Catawba Indian Tribe, Inc ., 476 U.S. 

498, 106 S.Ct. 2039, 90 L.Ed .2d 490 (1986), on remand, 865 F.2d 
341 

2a 

the loss, and, on the basis of the Tucker Act, seeks the aid 

of the United States Claims Court2 in obtaining that compensation. The Claims Court, on the grounds that the 

relevant statutes of limitations have run against the 

Tribe's claim, dismissed the suit. Catawba Indian Tribe v. 

United States, 24 Cl.Ct. 24 (1991). The only question before 

us is whether the Claims Court was correct in so ruling. 

We hold it was and therefore affirm. 

I. BACKGROUND 

A. 

While some would view the origins of this case to be 

the era when European adventurers came upon the vast 

North American continent and the peoples whose home it 

was, the legal issues in this case date from 1763. In that 

year the King of England conveyed to the Catawba Tribe, 

then occupying areas of what later became North and 

South Carolina, a 15 square mile tract, about 144,000 

acres, to be their ancestral home. 3 The Tribe subsequently 

1444 (4th Cir.), cert. denied, 491 U.S. 906, 109 S.Ct. 3190, 105 

L.Ed.2d 699 (1989). 

2 The Claims Court was renamed the Court of Federal 

Claims on October 29, 1992. Federal Courts Administration Act 

of 1992, Pub.L. No. 102-572, § 902(a), 106 Stat. 4506 (1992). 

3 The historical facts in this case are of record ar.d largely 

undisputed. We need not set them out in full here, since they are 

given in considerable detail in the several prior opinions that 

have been written in this litigation, including the majority and 

dissenting opinions in the Supreme Court. South Carolina v. 

Catawba Indian Tribe, Inc ., 476 U.S. 498, 106 S.Ct. 2039. We sketch 

them here only to put in context the specific events that the 

Tribe claims as the basis for this suit. 
342 

3a 

occupied that tract, now wholly within the boundaries of 

South Carolina. 

The Tribe alleges that when the United States was 

formed, it succeeded to the position of the grantor, with 

all that entails. Over the years the United States did 

assume a trustee relationship with the various Native 

American tribes, including the Catawbas. In that capacity 

the Government undertook a number of actions intended 

to assist Native American tribes in their efforts to accommodate to the influx of others into the country. 

One of these efforts took the form of an act known as 

the Nonintercourse Act. Under the terms of the earliest 

version of the Nonintercourse Act, effective in 1790, (now 

codified as re-enacted and amended at 25 U.S.C. § 177 

(1988)), transfers of title to Native American lands were 

prohibited unless pursuant to a treaty approved by the 

United States. 

Despite this law, and without approval from the 

United States, the State of South Carolina in 1840 negotiated with the Tribe an agreement - known as the Treaty 

of Nation Ford - under which the Tribe conveyed its 

entire 144,000 acres of ancestral lands to the State for 

$16,000 and a promise that it would be given a new 

reservation somewhere in the State as its tribal land.4 

Over the years the State conveyed that original 144,000 

acre tract into private ownership, and title to it is now in 

some 27,000 different owners. 

4 The record reflects that the State, after some years, eventually provided the Tribe a 630 acre parcel at considerably less 

cost to the State than had been agreed. 
343 

4a 

In 1940, the Federal Government undertook tripartite 

negotiations with the Tribe and South Carolina. South 

Carolina sought a release and quit-claim from the Tribe in 

exchange for its participation in a joint rehabilitation 

program. The Federal Government doubted the legality 

of this exchange and refused to agree . Then in 1943, the 

parties signed a Memorandum of Understanding which 

transferred to the Federal Government 3,434 acres to hold 

in trust for the Tribe. The Federal Government agreed to 

provide additional services, and the Tribe adopted a constitution. However, under the agreement the historic land 

claim remained intact, and unresolved. 

In the 1950's, Congress decided to terminate the Government's trustee relationship with the various Native 

American tribes. A series of acts ensued, known as the 

Termination Acts. It was the manner in which the Termination Act applicable to the Catawba Tribe was negotiated and executed that gives rise to many of the Tribe's 

claims in this litigation. 

B. 

The Tribe alleges that in 1958-59 a representative of 

the Bureau of Indian Affairs (BIA), on behalf of the Federal Government, undertook negotiations with the surviving members of the Tribe looking to an agreement 

under which the Government's trustee relationship to the 

Tribe would be ended, the Tribe and its members would 

be released from any special relationship to the Government, and the Government would no longer have responsibility for the well-being of the Tribe. During the course 
344 

Sa 

of these negotiations, the Tribe reasserted its long-standing grievance involving its ancestral lands. The Tribe 

alleges that it was assured that the termination of the 

Government's trusteeship would not affect its rights 

under that claim. 

Subsequently, with the cooperation of the Tribe, a 

draft act was prepared and submitted to Congress. On 

September 21, 1959, the Catawba Indian Tribe Division of 

Assets Act, now codified at 25 U.S.C. §§ 931-938 (1988) 

(the Termination Act or Act), was enacted. Following 

affirmation by the Tribe members, as provided by the Act, 

the Termination Act became effective by declaration of 

the Secretary of the Interior on July 1, 1962. 

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

contains the following provision: 

The constitution of the tribe . . . shall be revoked 

by the Secretary. Thereafter, the tribe and its 

members shall not be entitled to any of the 

special services performed by the United States 

for Indians because of their status as Indians, all 

statutes of the United States that affect Indians 

because of their status as Indians shall be inapplicable to them, and the laws of the several States 

shall apply to them in the same manner they apply to 

other persons or citizens within their jurisdiction . 

(Emphasis added). 

The meaning and effect of this particular section of the 

Act, and especially the emphasized language, is a central 

issue in the current dispute over ownership of the lands 

in question, the dispute which gave rise to this action . 

In 1980 suit was brought in the Federal District Court 

of South Carolina on behalf of the Catawba Tribe against 
345 

6a 

various private landowners, claiming ownership in the 

Tribe of the original ancestral lands. The specific parcels 

involved were among those that had long ago been conveyed by the State into private ownership. The landowners responded that, even if the Treaty of Nation Ford 

was invalid, as alleged, section 5 of the Termination Act 

made the Tribe subject to all State laws, including the 

South Carolina law on adverse possession. Under the 

State's law, any landowner who could prove ten years 

continuous adverse possession would be entitled to keep 

the land, even against the true owner. 

The Tribe responded that, in view of the specific 

understandings with the Federal Government that accompanied the drafting and enactment of the Termination Act 

concerning the preservation of their historic claim, the 

Act could not have been intended to, and did not, have 

that effect. The District Court ruled in favor of the landowners in 1983. 

On appeal to the Fourth Circuit, that court reversed, 

holding that ambiguous statutes affecting the Tribe 

should not be construed to their prejudice, and accordingly, the ambiguous phrasing of section 5 must be construed to exclude any congressional intent to adversely 

affect the Tribe's land claim. The Fourth Circuit held that 

the provision was intended only to end federal supervision and assistance. Catawba Indian Tribe v. South Carolina, 

718 F.2d 1291, 1296-97 (4th Cir.l983), adopted en bane, 740 

F.2d 305 (4th Cir.1984). 

The Supreme Court granted certiorari and reversed 

the Fourth Circuit. The Court held that the Termination 

Act provision applied in all respects, and that the Tribe's 
346 

7a 

claim to its land was subject to any adverse possession 

rights which may have accrued under South Carolina law. 

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

106 S.Ct. 2039, 90 L.Ed.2d 490 (1986). On remand to the 

Fourth Circuit, that court held that adverse possession for 

ten continuous years subsequent to July 1, 1962 would 

bar the Tribe's claims against individual possessors. 865 

F.2d 1444 (4th Cir.), cert. denied, 491 U.S. 906, 109 S.Ct. 

3190, 105 L.Ed.2d 699 (1989). Subsequently the District 

Court, on July 19, 1990, dismissed the Tribe's claims to 

parcels totalling about 75% of the original acreage. See 24 

Cl.Ct. at 28. 

c. 

Stymied in its efforts to regain its ancestral lands, the 

Tribe in 1990 turned to the Claims Court for relief under a 

new theory. The Tribe proffers seven claims upon which 

its argues monetary relief from the United States should 

be granted. Claims 1 and 2 allege breach of fiduciary duty 

based on the Government's permitting South Carolina to 

acquire the original lands, and subsequent failure to 

investigate and restore the Tribe to possession. 

Claim 3 alleges a continuing breach of fiduciary duty 

to protect the viability of the Tribe's land claim, based, 

inter alia, upon the Government's conduct and affirmative 

acts before, during, and after the enactment of the Termination Act. The Tribe alleges that as part of the approval 

action by the Tribe, the Tribe was assured that nothing in 

the Termination Act would affect the Tribe's claim to its 

ancestral lands. 
347 

8a 

These alleged Governmental assurances turned out 

to be wrong, and form the basis for the Tribe's claim that 

the Government failed to protect the Tribe's land claim by 

a breach of a duty to notify the Tribe of the effect of the 

1959 Termination Act (claim 4), breach of an implied-infact contract that the ensuing losses the Tribe sustained 

would not happen (claim 5),5 and a Fifth Amendment 

taking of a vested property right - the claim to the land, 

rather than the land itself (claim 6).

6 

Finally, since much of the 144,000 acre tract is now 

permanently in possession of others pursuant to the State 

adverse possession provisions and the decisions in South 

Carolina v. Catawba Indian Tribe, supra note 1, the Tribe 

alleges that the Government has failed to distribute those 

specific assets to the Tribe in accordance with the Termination Act provision, 25 U .S.C. § 933, constituting a 

breach of a continuing duty to quiet title and distribute 

5 At oral argument before this court, the Government contended that the Supreme Court implicitly dealt with the issue of 

whether an implied-in-fact contract arose as a result of the 

negotiations related to the enactment of the Termination Act, 

and in effect determined that no such contract existed . Counsel 

for the Tribe, who argued the case in the Supreme Court, 

responded to a question with the statement that the issue of 

whether a contract arose was never raised or considered by the 

Court. While a close reading of the Supreme Court's opinions 

rendered in this matter supports the Tribe's view of the matter, 

in view of the manner of disposition of the case it is unnecessary 

for us to resolve this question. 

6 For purposes of this analysis, we assume that this claim 

for the historic lands is a property interest in the nature of a 

chose in action, and could be subject to 'taking' by the government under the Fifth Amendment. See generally, Hendler v. 

United States, 952 F.2d 1364 (Fed.Cir.l991). 
348 

9a 

assets under the terms of the 1959 Termination Act (claim 

7). 

The United States moved for dismissal of the Tribe's 

claims on the grounds that whatever wrongful acts there 

may have been, any remedy available under the Tucker 

Act is barred because the Tribe waited too long to sue. 

The Claims Court dismissed all seven claims as barred by 

the Indian Claims Commission Act (ICCA) five- year statute of limitations, or alternatively by the six-year statute 

of limitations of the Tucker Act. In reviewing the propriety of this dismissal, we take as true the facts alleged by 

the Tribe in its complaint. W.R. Cooper General Contractor, 

Inc. v. United States, 843 F.2d 1362, 1364 (Fed.Cir.1988). 

At oral argument the Tribe conceded, as it must, that 

any causes of action which accrued before 1946 were indeed 

barred by failure to have brought them before the Indian 

Claims Commission during the five year window provided 

under the ICCA, discussed in more detail below. But, the 

Tribe argues, there were a series of post-1946 events between 

the Tribe and the Government that constituted wrongs by the 

Government that are not barred by the ICCA. The only issue 

before us then is whether the alleged wrongs arising from 

these later actions are barred on the grounds that this suit, 

filed on June 21, 1990, was filed later than the six years 

allowed under the Tucker Act after the causes of action first 

accrued. 

II. DISCUSSION 

A. 

As an initial matter, we address the Government's 

argument that the Claims Court correctly held that the 
349 

lOa 

ICCA bars all seven of the above-described claims. The 

ICCA states: 

The Commission shall receive claims for a 

period of five years after August 13, 1946, and 

no claim existing before that date but not presented within such period may thereafter be 

submitted to any court or administrative agency 

for consideration, nor will such claim thereafter 

be entertained by Congress. 

25 u .S.C. § 70k (1988). 

The Government asserts that all seven of the Tribe's 

claims may be understood to be one single 'claim' within 

the meaning of the statute, because "all of the Tribe's 

claims stem from one basic contention - namely, that the 

Government had an obligation to protect the Tribe from 

the effects of the 1840 Treaty of Nation Ford, and it failed 

to do so." Because that 'claim' existed before August 13, 

1946, it is now wholly barred by the ICCA. This is too 

broad a reading of the Tribe's claims. 

The Tribe's claims are grounded upon three separate 

bases - claims 1 and 2 upon the government's historical 

failure to restore the Tribe to ownership of its land; claims 

3-6 upon the misrepresentations regarding the legal effect 

of section 5 of the Termination Act, 25 U.S.C. § 935; and 

claim 7 upon the obligations imposed on the Government 

by the Termination Act itself. While all seven claims may 

stem at some general level from the allegations of a 

unitary disregard by the Government for the Tribe's land 

claim, this is not enough to have brought claims 3-7 

under ICC jurisdiction. 
350 

lla 

The three groupings of claims depend on different 

facts which occurred at different times. Indeed, the facts 

which led to claims 3-7 could hardly have been anticipated in 1946 or within the five year statutory period 

thereafter (by 1951), since the Federal Government did 

not announce its policy of terminating its trust relationships until 1953. 

The Tribe concedes that 'historical' claims should 

have been brought by the 1951 deadline. Thus claims 1 

and 2 are properly held to be barred by the ICCA, since 

these claims essentially reside in the Government's 

alleged ongoing failure to restore to the Tribe the land at 

issue. However, both the Government and the Claims 

Court err in equating the Government's passive failure to 

act to restore the land with the Government's alleged 

active representations that the Termination Act, effective 

in 1962, would not affect the Tribe's historic claim to the 

land . 

B. 

1. 

Claims 3 through 6 (we address claim 7 separately, 

infra Part C) are not barred by the ICCA. The question 

remains whether, as the government contends, they are 

barred by the Tucker Act six-year statute of limitations, 

28 u.s.c. § 2501 (1988).7 

7 Claim 3 is not explicitly limited to conduct and affirmative acts in relation to the passage of the Termination Act. However, any claim based on historical acts relating to the loss of the 

ancestral land (or any other act occurring prior to August 13, 
351 

12a 

The text of this provision reads "[e]very claim of which 

the United States Claims Court has jurisdiction shall be 

barred unless the petition thereon is filed within six years 

after such claim first accrues." 

Claims 3 through 6 stem from the Government's 

alleged assurances that the land claim would be preserved despite the enactment of the Termination Act. As 

we know, it was not. The initial question is, when did the 

cause of action underlying these claims "first accrue" so 

as to begin the running of the Tucker Act statute of 

limitations? Suit was filed under the Tucker Act on June 

21, 1990; the statute of limitations under the Act is six 

years. In order not to be barred, the underlying cause of 

action must have first accrued on or after June 21 , 1984. 

It is hornbook law that a claim does not accrue until 

all events necessary to fix the liability of the defendant 

have occurred - when "the plaintiff has a legal right to 

maintain his or her action." Corman, Limitation of Actions, 

§ 6.1, p. 374 (1991 ). See also Nager Electric Co. v. United 

States, 368 F.2d 847, 851 (Ct.Cl.1966) (" 'First accrual' has 

usually been put, in broad formulation, as the time when 

all events have occurred to fix the Government's alleged 

liability, entitling the claimant to demand payment and 

sue here for his money.") The Tribe takes the position that 

the underlying cause of action did not accrue until the 

Tribe was 'damaged', because 'damage' was an event 

necessary to fix the Government's liability. The Tribe 

<Hgues that it was not 'damaged' until it was clear that 

1946) is barred by the ICCA. Accordingly, we limit our discussion of Claim 3 to conduct and affirmative acts associated with 

the passage of the Termination Act. 
352 

13a 

the Government's assurances about the legal effect of 

section 5 (to the effect that the historic claim had been 

protected from application of South Carolina law) were 

incorrect and that losses to the Tribe would ensue. 8 It was 

not clear, says the Tribe, that this was the consequence of 

the 1962 Termination Act until the Supreme Court so 

announced in 1986. Thus the cause of action accrued in 

1986 and is not barred. 

The difficulty with the Tribe's argument, creative 

though it is, is that it is contrary to one of the fundamental premises of our legal system. The argument assumes 

that the adverse effect of the 1962 Act did not become 

operative against the Tribe- the Tribe was not 'damaged' 

- until the Supreme Court some 25 years later so construed the Act. While the Supreme Court's pronouncement in 1986 might be relevant to fixing the time when 

the Tribe subjectively first knew what the Act meant, it is 

fundamental jurisprudence that the Act's objective meaning and effect were fixed when the Act was adopted. Any 

later judicial pronouncements simply explain, but do not 

create, the operative effect. See, e.g., Chevron U.S.A., Inc. v. 

United States, 923 F.2d 830, 834 (Fed.Cir. 1991), Ide v. 

United States, 25 Ct.Cl. 401, 408 (1890), afj'd, 150 U.S. 517, 

8 See United States v. Dickinson, 331 U.S. 745, 67 S.Ct. 1382, 

91 L.Ed. 1789 (1947) (inverse condemnation action based on 

gradual flooding of plaintiff's land), Terteling v. United States, 

334 F.2d 250 (Ct.Cl.l964) (suit seeking reimbursement for litigation costs), and Illinois v. United States, 15 CI.Ct. 399 (1988) (state 

sued in Claims Court for reimbursement for emergency repair 

expenditures which were incurred during pendant District 

Court liability dispute amongst municipal, state, and federal 

entities). 
353 

14a 

14 S.Ct. 188, 37 L.Ed. 1166 (1893), and Jones v. United 

States, 6 Cl.Ct. 531, 532-33 (1984). See also Menominee Tribe 

of Indians v. United States, 726 F.2d 718, 720-21 (Fed.Cir.), 

cert. denied, 469 U.S. 826, 105 S.Ct. 106, 83 L.Ed.2d 50 

(1984) ("28 U .S.C. § 2501 is not tolled by the Indians' 

ignorance of their legal rights."), and Dian v. United States, 

137 Ct.Cl. 166 (1956) (suit for damages flowing from 

government's alleged refusal to recognize plaintiff's civil 

service status was time-barred; "ignorance of one's legal 

rights does not toll the statute of limitations."). 

This conclusion is reinforced in this case by the 

Supreme Court's explicit holding that the statute was 

unambiguous on its face. South Carolina v. Catawba Indian 

Tribe, Inc., 476 U.S. at 506, 106 S.Ct. at 2044. Whether the 

harm was caused to the Tribe by the Act itself or by 

Government misrepresentations about what the effect of 

the Act might be, the 'damage' was done when the Act 

became effective in 1962. At that time, possessors of the 

tribal lands holding under deeds from the State of South 

Carolina could begin to acquire adverse posse ssion rights 

against the Tribe. The Government's duty to act, either 

affirmatively or by way of disclaimer, arose. Any suit 

based on the theories presented necessarily would have 

to have been filed by July 1, 1968. 

Even if a different view is taken as to when the Tribe 

was irrevocably damaged, that it was 1972 - the end 

rather than the beginning of the ten year adverse possession period under South Carolina law - when the first of 

the adverse possessors perfected title, suit should have 

been filed by July 1, 1978 at the latest. Under either view, 

the fact that the existence of this legal harm was not 

finally adjudicated until the Supreme Court opinion in 
354 

15a 

1986 is not determinative of the basic question of when 

the injury to the Tribe occurred. 

2. 

Statutes of limitations sometimes expressly provide 

that under specified circumstances the running of the 

statute is suspended, or tolled. 9 Even if there is no 

express tolling provision applicable, courts may when 

circumstances require invoke the concept of tolling as an 

equitable matter.t 0 As was explained in Japanese War 

Notes Claimants Ass'n v. United States: 

In certain circumstances the running of the statute will be suspended when an accrual date has 

9 The statute here at issue is tolled for "a person under legal 

disability or beyond the seas at the time the claim accrues .... " 

Section 2501. No argument is made that this tolling provision is 

applicable to the facts of this case. 

to The concurring opinion of Judge Mayer states that the 

question of equitable tolling was not raised by either party, and 

that the discussion thus is a gratuitous offering of the court. We 

do not agree. A central issue in the case, as framed by appellant, 

is "whether the Claims Court erred in holding that the Tribe's 

claims are barred by the six-year limitations period contained in 

28 U.S.C. § 2501." A court in an appropriate case may temper the 

application of the bar in exercise of its equitable powers. See 

Irwin v. Veterans Admin., 498 U.S. 89, _ 111 S.Ct. 453, 457, 112 

L.Ed.2d 435 (1990). Under the circumstances of this case we 

would be remiss not to have considered all aspects of the issue 

presented by appellant. Cf. SA C. Wright and A. Miller, Federal 

Practice and Procedure, § 1357, 336-37 (1990) ("The complaint 

should not be dismissed merely because plaintiff's allegations 

do not support the legal theory he intends to proceed on, since 

the court is under a duty to examine the complaint to determine 

if the allegations provide for relief on any possible theory.") 
355 

16a 

been ascertained, but plaintiff does not know of 

his claim. Ignorance of rights which should be 

known is not enough .... Plaintiff must either 

show that defendant has concealed its acts with 

the result that plaintiff was unaware of their 

existence, or it must show that its injury was 

"inherently unknowable" at the accrual date. 

373 F.2d 356, 358-59 (Ct.CI.), cert. denied, 389 U.S. 971, 88 

S.Ct. 466, 19 L.Ed.2d 461 (1967) (citations omitted). 

Accord, Menominee Tribe of Indians v. United Stat es, 726 F.2d 

718, 721 (Fed.Cir.) cert. denied, 469 U.S. 826, 105 S.Ct. 106, 

83 L.Ed.2d 50 (1984); cf Hopland Band of Porno Indians v. 

United States, 855 F.2d 1573, 1577 (Fed.Cir.1988). 

The Supreme Court recently has confirmed that equitable tolling is available in suits against the United States: 

Once Congress has made such a waiver [of sovereign immunity permitting suit to be brought 

against the Government within a specified 

time], we think that making the rule of equitable 

tolling applicable to suits against the Govern·· 

ment, in the same way that it is applicable to 

private suits, amounts to little, if any, broadening of the congressional waiver .. . . We therefore hold that the same rebuttable presumption 

of equitable tolling applicable to suits against 

private defendants should also apply to suits 

against the United States. 

Irwin v. Veterans Admin., 498 U.S. 89, _ , 111 S.Ct. 453, 

457, 112 L.Ed.2d 435 (1990) (citing Clus v. Brooklyn Eastern 

District Terminal, 359 U.S. 231, 79 S.Ct. 760, 3 L.Ed.2d 770 

(1959)). 

As noted a traditional ground for equititble tolling of 

a statute of limitations is based on the avoidilnce of 
356 

17a 

penalizing a plaintiff simply because under the circumstances plaintiff did not and could not have known of the 

facts upon which the claim is based. See Corman, Limitation of Actions, § 11.1 (1991 ). Particularly is this the case 

when the facts necessary to know of the harm were 

intentionally withheld from the plaintiff by the defendant. Id. at§ 9.7. But in the case before us, all the relevant 

facts were known. It was the meaning of the law that was 

misunderstood. 

But let us put that distinction aside for the moment 

and assume, as the Tribe would have it, that their ignorance of the import of the law was grounds for equitable 

tolling. Let us assume further that the Tribe, despite the 

Supreme Court's pronouncement that the language of 

Section 5 was unambiguous, could not reasonably have 

known the import from the language itself. The question 

that then arises is, when was the earliest that the Tribe 

could reasonably be said to know, or should have known, 

that the Termination Act would be used against it in its 

efforts to reacquire its ancestral lands? 

Up until 1980 it could be argued on these assumptions that the Tribe had no reason to believe that its 

understanding of the Termination Act (that the provisions 

did not affect its land claims) was incorrect. There is 

support for this. In 1977 the Solicitor of the Department 

of the Interior opined that the Act operated prospectively 

only, and did not affect pre-existing rights. South Carolina 

v. Catawba Indian Tribe, Inc. , 476 U.S. at 517-18, 106 S.Ct. at 

2049-50. 

But in 1980, when the Tribe brought its title claims in 

the South Carolina District Court, the landowners raised 
357 

18a 

as a defense the applicability of the state adverse possession law. The district court held that defense valid. At 

that point, the Tribe was fully on notice that the Government's earlier legal representations were subject to question, and could well be erroneous. Thus, even on the 

assumptions we have made about the Tribe initially not 

knowing or not having reason to know that the Government's representations regarding the legal effect of section 5 were wrong, the causes of action should have been 

sued upon at the latest by 1989, six years after the district 

court decision dismissing the Tribe's claim. 

Under any of the above scenarios, when suit was 

filed in 1990, the six year statutory period for filing had 

run against these claims. The Government invoked the 

bar of the statute, as it was entitled under the Jaw t0 de; 

the Claims Court correctly ruled that claims 3-6 must be 

dismissed. 

c. 

Claim 7 speaks of a continuing duty of the United 

States "to quiet title to the lands of the 1763 Treaty 

reservation in the Tribe and distribute the proceeds 

among the members of the Tribe." This duty is premised 

upon the provision in the Termination Act, § 933, obligating the Government to distribute tribal assets. Under 

that provision, the Government had the duty to distribute 

to the Tribe all assets "held in trust by the United States" for 

the benefit of the Tribe, 25 U.S.C. § 932 (emphasis added). 

If Claim 7 is understood to include a continuing duty 

that arose prior to the Termination Act, that part of the 

claim is little more than a restatement of the historical 
358 

19a 

duty of Claim 2, considered supra. If, on the other hand, 

the claim alleges an obligation under the Termination Act 

on the part of the Government to distribute to the Tribe 

all lands to which the Tribe had an historical claim, and 

not merely those lands then actually in the control of the 

Government, the breach of that duty would not have 

occurred until after the effective date of the Termination 

Act. The question then is, when subsequently did the 

cause of action accrue for the alleged breach? 

The breach of the Government's duty would have 

been evident in the way in which the Government implemented the Act. The Tribe's claim arguably accrued when 

the division of tribal assets was completed as part of the 

Termination Act process without inclusion of the ancestral lands. Alternatively, it accrued shortly thereafter -

under the Termination Act, any "tribal asset" which was 

"not sold within two years from the date of the notice [of 

agreement to division of tribal assets published in the 

Federal Register]" was to be conveyed to a "trustee." 25 

U.S.C. § 933(f). That notice was published in the Federal 

Register on July 1, 1962. 

If the Government had viewed the land within the 

historical claim as a tribal asset, it would have been 

required to convey that land to a trustee. Since the Government failed to take any action regarding the historical 

lands, the Tribe had notice as of July 1, 1964 either that 

the Government did not consider those lands to be "tribal 

assets," or that the Government intentionally refused to 

convey them to a trustee. Under either interpretation the 

statute of limitations ran at the latest on July 1, 1970, for 

this claim. 
359 

20a 

In suits against the Federal Government, the Government has reserved the right to specify the terms of the 

law under which such suits may be brought. If that law 

does not permit an alleged wrong to be righted through a 

judicial remedy, the remedy must lie with Congress. 

CONCLUSION 

The Claims Court dismissed all seven of the Tribe's 

claims. The Claims Court was correct in its dismissal 

since all seven claims are time-barred. Accordingly, the 

Claims Court judgment is affirmed. 

COSTS 

No costs. 

AFFIRMED. 

MAYOR, Circuit Judge, concurring in the judgment. 

I would affirm on the basis that all seven claims are 

barred by the statute of limitations, 28 U .S.C. § 2501. 

Accordingly, discussion of any other bases is unnecessary, 

and I do not subscribe to it. Equitable tolling was not 

raised by any party to this litigation, and is a gratuitous 

offering by the court, which I decline to join. 
360 

21a 

APPENDIX B 

The CATAWBA INDIAN TRIBE 

OF SOUTH CAROLINA 

v. 

The UNITED STATES. 

No. 90-553L. 

United States Claims Court. 

Aug. 20, 1991. 

Don B. Miller, Boulder, Colorado, attorney of record 

for plaintiff. Jay Bender, Robert M. Jones, Richard Steele, 

of counsel. 

Andrew M. Eschen, Washington, D.C., with whom 

was Assistant Attorney General Richard B. Stewart, for 

defendant. 

OPINION 

YOCK, fudge. 

Plaintiff, the Catawba Indian Tribe of South Carolina, 

seeks recovery for damages arising from the government's breach of alleged fiduciary duties. This case is 

before the Court on defendant's motion to dismiss on the 

grounds that the complaint is not within the jurisdiction 

of this court. For the reasons stated herein, the defendant's motion is granted, and the complaint will be dismissed. 
361 

22a 

Facts 

In 1760 and 1763, Great Britain negotiated treaties 

with plaintiff, the Catawba Indian Tribe of South Carolina 

(Tribe). As a result of these treaties, a 144,000-acre tract of 

land was set aside as a reservation for the Tribe. Later, 

when the United States achieved independence from 

Great Britain, it became invested with all of the former 

sovereign's rights and obligations under the 1760 and 

1763 treaties. In 1790, Congress enacted the Indian Trade 

and Intercourse Act (the Nonintercourse Act), presently 

codified at 25 U .S.C. § 177 (1988), that provides the Federal Government with the exclusive authority to sign 

treaties with the various Indian tribes, and thus prohibits 

the individual states from signing such treaties. To the 

extent that the states did sign treaties affecting Indian 

land titles with the various Indian tribes in violation of 

the Nonintercourse Act, the Supreme Court has stated 

that such a land conveyance without the sovereign's consent would be void ab initio. County of Oneida v. Oneida 

Indian Nation, 470 U.S. 226, 245, 105 S.Ct. 1245, 1257, 84 

L.Ed.2d 169 (1985). 

On March 3, 1840, the State of South Carolina (State), 

without the consent or participation of the United States, 

entered into the Treaty of Nation Ford with the Tribe. As 

a result of this treaty, the Tribe ceded its interests in the 

144,000-acre tract to the State, the State in return promised to purchase for the Tribe another tract of land valued 

at $5,000, as well as to pay $16,000 over a nine-year 

period. However, the only land subsequently purchased 

for the Tribe by the State was a 630-acre parcel of land 
362 

23a 

purchased in 1842 for $2,000. This is the only land actually occupied by the plaintiff Tribe today. 

Over the next 100 years, the Tribe, with little success, 

communicated with various federal and State officials 

concerning its claim to the 1763 Treaty lands, which were 

ceded to the State of South Carolina in the Treaty of 

Nation Ford. 1 However, in 1943, the Tribe, the State and 

the Secretary of the Interior reached an agreement under 

which the Secretary of the Interior accepted legal title to 

some 3,434 acres of land to be held in trust for the Tribe. 

All of this land was within the boundaries of the 1763 

Treaty reservation. In addition, this agreement did not 

require the Tribe to release its claim for the return of the 

remaining 140,000 some acres, although such a release 

had been proposed in a preliminary draft of the agreement. Thereafter, in 1944, the Secretary of the Interior 

approved the Catawba Tribe's constitution under the 

Indian Reorganization Act.2 

In 1953, Congress declared that as a matter of 

policy, the United States was to terminate the Federal 

1 The Tribe was represented by legal counsel during at least 

part of this time. For example, in 1905, the Tribe's formal request 

for assistance that was directed to the Bureau of Indian Affairs 

was accompanied by a "lengthy legal brief * * * and set forth the 

legal basis of the claim, i.e., that the Catawbas' lands were 

protected by federal law (the Nonintercourse Act)." Complaint 

'116(h). The Commissioner of Indian Affairs denied the request. 

2 Complaint 118. 
363 

24a 

Government's trust responsibilities toward Indian tribes,3 

and in 1958 the United States began an active effort to 

terminate federal supervision over the Catawba Tribe. 

During the next four years, Department of the Interior 

officials negotiated with tribal leaders to secure tribal 

consent to termination. Allegedly, during these negotiations, tribal officials were assured by a Bureau of Indian 

Affairs (BIA) official that tribal termination would not 

jeopardize the Tribe's land claim. The BIA drafted the 

termination legislation, and Congressman Hemphill of 

South Carolina, the sponsor of the legislation, told the 

Tribe that he would not introduce the bill without its 

approval. On March 28, 1959, the BIA draft of the bill was 

read line by line to the Tribe, which then approved the 

introduction of the legislation. 

The Department of the Interior, in its testimony and 

reports to Congress on the termination bill, indicated that 

the Tribe consented to the termination proposal. Apparently, however, the Department never notified Congress 

about the existence of the Tribe's land claim or that the 

Tribe's consent was allegedly conditioned upon protection of that claim. Nevertheless, on September 21, 1959, 

the Catawba Indian Tribe of South Carolina Assets Distribution Act, 73 Stat. 592, 25 U.S.C. §§ 931-938 (1959) (Catawba Act or 1959 Act) was enacted. The Catawba Act 

contained substantially the same line-for-line language 

that the Tribe had approved, although Congress amended 

the bill to provide that the Catawba Act could not take 

effect until a majority of adult members of the Tribe 

3 H.R. Cong. Res. 108, 83d Cong., 1st Sess. (1953), 67 Stat. 

B132. 
364 

25a 

agreed to a division of tribal assets. Allegedly, in an 

attempt to persuade tribal members to vote for termination, Department of Interior officials told the Tribe that 

the 1959 Act would not jeopardize the land claim. The 

majority vote of the adult members of the Tribe was 

achieved on June 30, 1960, and the termination became 

effective two years later, on July 1, 1962. Pursuant to the 

1959 Act, the 3,434-acre reservation that was the subject 

of the 1943 agreement between the Tribe, the State of 

South Carolina, and the Secretary of the Interior, was 

distributed to the members of the Tribe. 

In the mid-1970's, the Tribe retained legal counsel to 

pursue its land claim to the remaining 140,000 some 

acres, and petitioned the Department of the Interior to 

initiate legal action on its behalf to secure the return of 

that land. The Solicitor of the Department of the Interior 

was initially favorably disposed towards plaintiff's petition, concluding in 1977 both that the rebuffs given the 

Tribe in the early 1900's were legally unjustified, and that 

the 1959 Act did not affect pre-existing rights. Accordingly, he requested that the Department of Justice institute legal action on behalf of the Tribe. However, this 

request was later withdrawn and the Tribe's petition to 

the Department of the Interior was eventually denied in 

1978 or 1979. 

In 1980, plaintiff filed suit in its own name in the 

Federal District Court of South Carolina, seeking trespass 

damages and recovery of the land at issue which was the 

subject of the 1840 Treaty with the State. The District 

Court granted summary judgment in favor of the State, 

and ruled that the 1959 Act resulted in the application of 

the South Carolina ten-year statute of limitations to the 
365 

26a 

Tribe's claim. On appeal, a panel of the Court of Appeals 

for the Fourth Circuit reversed. Catawba Indian Tribe v. 

South Carolina, 718 F.2d 1291 (4th Cir. 1983), and that 

opinion was later c.Jopted by the full Court of Appeals 

for the Fourth Circuit. Catawba Indian Tribe v. South Carolina, 740 F.2d 305 (4th Cir. 1984). Eventually, the suit 

reached the Supreme Court,4 which reversed the Court of 

Appeals and held that the 1959 Act resulted in the application of the South Carolina statute of limitations to the 

Tribe's land claim. 5 It thereafter remanded the case to the 

Court of Appeals for the Fourth Circuit to review the 

District Court's interpretation of the applicable South 

Carolina statute of limitations. South Carolina v. Catawba 

Indian Tribe, Inc., 476 U.S. 498, 511, 106 S.Ct. 2039, 2047, 90 

L.Ed.2d 490 (1986) (Catawba). 

On remand, the Court of Appeals held that the applicable South Carolina statute of limitations would bar the 

4 After certiorari was granted, the United States, upon the 

request of the Supreme Court, filed an amicus brief in which it 

indicated that the 1959 Act made the State's statute of limitations applicable to plaintiff's claim. 

5 The relevant section of the Catawba Act provides: "The 

constitution of the tribe adopted pursuant to the Act of June 18, 

1934 (48 Stat. 984), as amended [25 U.S.C. 461 et seq.), 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." 25 U.S.C. § 935 (1988) (emphasis 

added). 
366 

27a 

Tribe's claim to any lands that had been adversely possessed for ten continuous years during the period 

between the effective date of the Catawba Act (in 1962), 

and the date the Tribe filed its land claim (in 1980), and 

remanded the case to the District Court for further proceedings. Catawba Indian Tribe v. South Carolina, 865 F.2d 

1444 (4th Cir.), cert. denied, 491 U.S. 906, 109 S.Ct. 3190, 

1 OS L.Ed.2d 699 (1989). On remand, the District Court, on 

July 19, 1990, dismissed the Tribe's claim to approximately 75 percent of the land. The Tribe's claim to the 

remaining 25 percent of the land is still the subject of 

active litigation in the Federal District Court of South 

Carolina. 

On June 21, 1990, the Tribe filed this action declaring 

that the Tribe has now permanently lost approximately 75 

percent of its origina11840 land claim. The main thrust of 

plaintiff's Complaint is that the Government has 

breached its fiduciary duties to protect the Tribe's 1840 

land claim (Complaint, Claims 1 through 3), and to protect it from the effects of the 1959 Act (Complaint, Claims 

4 and 7). 6 As earlier indicated, the defendant has now 

moved to dismiss the Complaint for lack of subject matter 

jurisdiction pursuant to USCC Rule 12(b). 

6 Plaintiff also alleges that the defendant breached an 

implied contract to protect the land claim from the effects of the 

1959 Act (Claim 5), that defendant's failure to protect the land 

claim constitutes a taking of the Tribe's vested property rights in 

violation of the Fifth Amendment (Claim 6), and that the Government has a continuing duty to quiet title to the land of the 

1763 Treaty in the Tribe and distribute such among the members 

of the Tribe (Claim 7). 
367 

28a 

Discussion 

The Government's motion to dismiss for lack of jurisdiction is premised on two statute of limitations arguments.7 The first and primary argument is that the 

plaintiff's claims (all seven claims contained in its Complaint) are time barred and thus outside of this Court's 

jurisdiction based on 25 U.S.C. § 70k (1976). This is true, 

asserts the Government, because all of the plaintiff's 

claims are based on a historical claim for Indian land, 

which accrued long before 1946 and which was not timely 

presented to the Indian Claims Commission prior to the 

expiration period of the applicable statute (August 12, 

1951 ), 25 U .S.C. § 70k. The government's second argument, in the alternative, is based on this Court's own sixyear statute of limitations set forth in 28 U.S.C. § 2501 

(1988). Here, the Government asserts that, at the latest, all 

of the plaintiff's claims accrued in 1962 when the Catawba Act went into effect and which terminated any federal responsibility for the Tribe and its individual 

members. Thus, the plaintiff's claims had to have been 

presented to this Court before 1968 in order for this Court 

to have and assert jurisdiction. 

7 Defendant also argues that the Complaint fails to state a 

claim upon which relief can be granted, since the decision by the 

United States whether or not to litigate on behalf of a Tribe is 

wholly discretionary, rather than a mandatory duty. However, 

the Court does not have to reach this issue since the defendant's 

other arguments dispose of this case. 
368 

29a 

I. 

As indicated above, the Government's primary argument is that this Court lacks subject matter jurisdiction 

over this dispute, since the Indian Claims Commission 

was the exclusive forum for historic claims (i.e., for 

wrongs accruing before 1946) asserted against the United 

States. Defendant contends that all of the plaintiff's 

claims are based upon the Government's refusal to assist 

it in obtaining a remedy for its execution in 1840 of the 

Treaty of Nation Ford with the State of South Carolina. 

Accordingly, defendant submits that the wrong accrued 

long before 1946, and that the Tribe was aware that it had 

a claim against the Government long before 1946. The 

Government thus concludes that since the plaintiff failed 

to present its claims to the Indian Claims Commission 

within five years of August 13, 1946, the claims are now 

time barred by 2.5 U.S.C. § 70k. 

In its responsive briefing before this Court, the plaintiff agrees that the pre-1946 claims asserted by the Tribe 

in Claims 1 and 2 of the Complaint are barred by the 

Indian Claims Commission Act's statute of limitations, 

but submits that all the other claims contained in its 

Complaint (i.e. Claims 3 through 7) should not be dismissed. Plaintiff emphasizes that its primary claim arises 

out of Government nonfeasance during the period from 

1958 to 1962, which is when the defendant negotiated 

with tribal officials to terminate the trust relationship 

with the Tribe. 

Unfortunately for the plaintiff, however, the Government is correct in its legal assertions. 
369 

30a 

Section 12 of the Indian Claims Commission Act 

(ICCA), 25 U.S.C § 70k (1976), provided an exclusive remedy against the United States for Indian tribes' claims 

first accruing before August 13, 1946. The Indian Claims 

Commission was established in 1946 to provide a monetary damages remedy against the United States for 

wrongs allegedly committed by the United States in its 

dealings with the Indian tribes. Such claims had to be 

presented to the Indian Claims Commission within five 

years of August 13, 1946, and could not otherwise be 

submitted to any court, administrative agency, or Congress. 

The Commission shall receive claims for a 

period of five years after August 13, 1946, and 

no claim existing before such date but not presented within such period may thereafter be 

submitted to any court or administrative agency 

for consideration, nor will such claim thereafter 

be entertained by the Congress. 

25 U.S.C. § 70k (1976) (emphasis added). Claims not 

adjudicated by the Commission were transferred to the 

United States Court of Claims. Pub. L. No. 94-465, Act of 

October 8, 1976, 90 Stat. 1990. This Court subsequently 

inherited the Court of Claims ICCA jurisdiction. Federal 

Courts Improvement Act of 1982, Pub. L. No. 97-164, Apr. 

2, 1982, 96 Stat. 25, 46. 

The ICCA's purpose, explicit provisions, and legislative construction clearly demonstrate that the "chief purpose of the [ICCA was] to dispose of the Indian Claims 

problem with finality." United States v. Dann, 470 U.S. 39, 

45, 105 S.Ct. 1058, 1062, 84 L.Ed.2d 28 (1985) (quoting 
370 

31a 

H.R. Rep. No. 1466, 79th Cong., 1st Sess. 10 (1945)). As 

noted recently by this Court, 

[t]he purpose of that statute of limitations was 

to ensure that "there ... [would] be a prompt 

and final settlement of all claims between the 

government and its Indian citizens, . . . and 

bring them to a conclusion once and for all." 

Te-Moak Bands of West ern Shoshone Indians v. United States, 

18 Cl. Ct. 74, 80 (1989), quoting United States v. Dann, 

supra, 470 U.S. at 46, 105 S.Ct. at 1062. The legislative 

history of the ICCA reflects the intention of Congress that 

the Act: 

would require all pending Indians claims of 

whatever nature, contractual and noncontractual, legal and nonlegal, to be submitted to this 

fact-finding body within 5 years, and would 

outlaw claims not so submitted. 

H.R. Rep. No. 1466, 1946 U.S. Code Cong. Service, 1347, 

1349. See also Navajo Tribe v. State of New Mexico, 809 F.2d 

1455 (lOth Cir. 1987). In that case, the Navajo Nation 

argued that the Indian Claims Commission did not have 

jurisdiction over claims to land. The Court disagreed, 

stating: 

The language [in the ICAA, § 2] is sweeping, 

including even claims "based upon fair and 

honorable dealings" which did not otherwise 

constitute recognized actions at law or equity. 

As the legislative history indicates, Congress 

did not enumerate the cognizable claims under 

the new Act to narrowly circumscribe the Commission's jurisdiction. Rather, Congress desired 

to finally provide a forum for the resolution of 

all possible accrued claims. 
371 

32a 

Congress wished to settle all meritorious 

claims of long standing of Indian Tribes and 

bands whether those claims were of a legal 

or equitable nature which would have been 

cognizable by a court of the United States 

had the United States been subject to suit 

and the Indians able to sue, or whether 

those claims were of a purely moral nature 

not cognizable in courts of the United States 

under any existing rules of law or equity. 

Otoe & Missouria Tribe of Indians v. United States, 

131 Ct. Cl. 593, 131 F.Supp. 265, 275 (1955) 

(emphasis in original). 

ld. at 1465. 

The gravamen of the seven claims alleged in the 

Complaint is plaintiff's believe that the Tribe was 

wronged due to the Government's refusal to assist it in 

obtaining a remedy for its execution in 1840 of the Treaty 

of Nation Ford with the State of South Carolina. By 

plaintiff's own admission, the Tribe was aware that any 

claim it may have had against the United States for its 

refusal to assist the Tribe in obtaining its aboriginal land, 

ceded by the 1840 Treaty of Nation Ford, had accrued 

long before 1946, the effective date of the ICCA. The Tribe 

was thus on notice that any claim not properly presented 

to the Indian Claims Commission could not "thereafter be 

submitted to any court or administrative agency * * "' nor 

* .. * entertained by the Congress." ICCA, § 12, 25 U.S.C. 

§ 70k. Accordingly, the Government is correct and all of 

the plaintiff's claims must be dismissed. 
372 

33a 

II. 

The Government has also argued in the alternative 

that even if the Court does not find that the plaintiff's 

claims are time barred by the ICCA statute of limitations, 

it should find that all of the claims are barred by this 

Court's own six-year statute of limitations set forth in 28 

U.S.C. § 2501 (1988).8 With respect to plaintiff's Claims 1 

through 3, the defendant submits the operative underlying event was the Tribe's 1840 Treaty with the State of 

South Carolina, and that plaintiff was long aware both of 

its potential land claim against the State, and the fact that 

the United States would not act on the claim. With respect 

to Claims 4 through 7, regarding the Government's 

alleged failure to protect the Tribe from the effects of the 

1959 Act, the defendant argues that since the trust relationship with the United States terminated under the 

1959 Act on July 1, 1962, any claim for a breach of trust 

could not accrue after the relationship was legally terminated. Even if the Government had the fiduciary duties 

alleged by plaintiff (e.g., to warn of the applicable statute 

of limitations period), judicial recourse for such a breach 

was required no later than 1968. 

The essence of plaintiff's argument in opposition is 

that the claim could not have accrued until damage was 

suffered, and that it was not until 1986, when the 

Supreme Court ruled in Catawba that the land claim was 

affected by the 1959 Act, that the tribe could determine its 

8 28 U.S.C. § 2501 states in pertinent part: 

"Every claim of which the United States Claims Court has 

jurisdiction shall be barred unless the petition thereon is filed 

within six years after such claim first accrues." 
373 

34a 

rights and finally determine whether or not it had suffered damage. See Fort Mojave Indian Tribe v. United States, 

23 Cl.Ct. 417, 428-31 (1991). Alternatively, plaintiff contends that even if the claim did accrue in 1962, the running of the six-year statute of limitations is tolled by the 

concealment and misrepresentation of the United States. 

Unfortunately for the plaintiff Tribe, the Court must 

again agree with the government. Even if the ICCA statute of limitations did not preclude the assertion of the 

plaintiff's claims in this Court, they would all be precluded by this Court's own six-year statute of limitations. 

All of the plaintiff's claims in its Complaint accrued prior 

to the Supreme Court's 1986 decision date. Not only was 

plaintiff's basic land claim not inherently unknowable, 

but plaintiff was well aware that it was ripe nearly 100 

years ago, when it asked for the Department of Interior's 

assistance in obtaining either compensation or a return of 

the land in the early 1900's.9 With respect to the effect of 

the 1959 Act, as noted by the Supreme Court, the express 

provision of 25 U.S.C. § 935 stating that South Carolina 

laws "shall apply to [the Tribe] in the same manner they 

apply to other persons or citizens within the [ ] jurisdiction," established in "unmistakably clear language" that 

the State's statute of limitations applied to the Tribe. 

Catawba, 476 U.S. at 505-06, 106 S.Ct. at 2043-44. 

As the Supreme Court noted, 

[ w ]e do not accept petitioners' argument that 

the Catawba Act immediately extinguished any 

claim that the Tribe had before the statute 

9 See supra note 1. 
374 

35a 

became effective. Rather, we assume that the 

status of the claim remained exactly the same 

immediately before and immediately after the 

effective date of the Ace but that the Tribe thereafter had an obligation to proceed to assert its 

claim in a timely manner as would any other 

person or citizen within the State's jurisdiction. 

ld. at 510, 106 S.Ct. at 2046. Thus, the Catawba Act did 

not destroy plaintiff's claim, it merely put the burden on 

the plaintiff Tribe to pursue its claim within the State's 

statute of limitations. 10 

The Government's repeated refusal to pursue the 

claim on the Tribe's behalf dating back from the early 

1900's, coupled with the clear language of the 1959 Act, 

show that the plaintiff was on notice of the existence and 

basis of the claim. Thus, the facts underlying the claim 

10 Defendant notes that the Catawba Act was passed by the 

entire Congress. Defendant is correct in stating that plenary 

power with respect to all Indian affairs rests with Congress. 

Lone Wolf v. Hitchcock, 187 U.S. 553, 565, 23 S.Ct. 216, 221, 47 

L.Ed. 299 (1903). Nevertheless, this power is not absolute. 

United States v. Alcea Bank of Tillamooks, 329 U.S. 40, 54, 67 S.Ct. 

167, 174,91 L.Ed. 29 (1946); see also United States v. Creek Nation, 

295 U.S. 103, 109-110,55 S.Ct. 681,684,79 LEd. 1331 (1935). For 

example, plenary authority "does not extend so far as to enable 

the Government 'to give the tribal lands to others, or to appropriate them to its own purposes, without rendering, or assuming an obligation to render, just compensation • • .. .'" Soshone 

Tribe v. United States, 299 U.S. 476, 497,57 S.Ct. 244, 252,81 LEd . 

360 (1937) (quoting Creek Nation , 295 U.S. at 110, 55 S.Ct. at 684). 

In the case at bar, Congress' passage of the Catawba Act did 

not mean either that plaintiff's land was given to others, or that 

plaintiff's claim was eliminated. The passage of the Catawba 

Act only meant that it was up to plaintiff to take timely legal 

action on its claim. 
375 

36a 

were neither concealed nor inherently unknowable, and 

the statute of limitations was not tolled. 11 Hopland Band of 

Porno Indians v. United States, 855 F.2d 1573, 1577 (Fed. Cir. 

1988); Japanese War Notes Claimants Ass'n v. United States, 

178 Ct. Cl. 630, 634, 373 F.2d 356, 359, cert. denied, 389 U.S. 

971, 88 S.Ct. 466, 19 L.Ed.2d 461 (1967), relz'g denied, 390 

U.S. 975, 88 S.Ct. 1020, 19 L.Ed.2d 1192 (1968). Furthermore, this case can be distinguished from Fort Mojave 

Indian Tribe v. United States, 23 Cl.Ct. 417 (1991) which the 

plaintiff relies upon, since, unlike that case, there was no 

previous litigation by this plaintiff that resulted in a 

Supreme Court decree that specifically authorized the 

Government to seek reconsideration. Since there was no 

such previous decree for this plaintiff, there was no 

"potentially viable method for the government to further 

its trust responsibilities and correct its acknowledged 

error." ld. at 430. Accordingly, the claims accrued by the 

operation of the 1959 Act (i.e., by 1962), long before the 

Supreme Court's decision in Catawba. 

The presence of a fiduciary relationship does not toll 

the statute of limitations under the facts of this case. 

While plaintiff has repeatedly alleged Government nonfeasance, nonfeasance by a trustee, as distinguished from 

repudiation of the trust by the trustee, does not present 

an exception to tolling. Hopland Band, 855 F.2d at 1578; 

Cherokee Nation of Oklahoma v. United States, 21 Cl. Ct. 565, 

11 Furthermore, the Supreme Court indicated "we perceive 

no contradiction between the applicability of the state statute of 

limitations and the assurance that the status of any state claims 

would not be affected by the Act." Catawba, 476 U.S. at 510, 106 

S.Ct. at 2046. 
376 

37a 

571 (1990); Jones v. United States, 9 Cl. Ct. 292, 295 (1985), 

aff'd, 801 F.2d 1334 (Fed. Cir. 1986), cert. denied, 481 U.S. 

1013, 107 S.Ct. 1887, 95 L.Ed.2d 495 (1987). The present 

facts present a strong case for not tolling the statute of 

limitations, since the fiduciary relationship was not even 

arguably ongoing, as the 1959 Act expressly terminated 

the guardianship.12 Cf. Fort Mojave Indian Tribe v. United 

States, 23 Cl.Ct. 417 (1991) (previous Supreme Court 

decree created mechanism by which the Government 

could resecure rights for plaintiffs, hence the trust relationship was ongoing). 

While plaintiff argues it was not represented by 

counsel during the termination negotiations in 1958-59, 

apparently it was sophisticated enough to have legal 

counsel advising it on its land claims at least several 

times in the past. In Menominee Tribe of Indians v. United 

States, 726 F.2d 718, 721 (Fed. Cir.), cert. denied, 469 U.S. 

826, 105 S.Ct. 106, 83 L.Ed.2d 50 (1984), the Federal Circuit found that the running of the statute of limitations 

would not be tolled when "the Indians were capable 

enough to seek advice, launch an inquiry, and discover 

through their agents the facts underlying their current 

12 The general relationship between defendant and Indian 

tribes has often been characterized as that of a guardian to a 

ward, rather than as a trustee to a beneficiary. United States v. 

Mitchell, 463 U.S. 206, 234 n.8, 103 S.Ct. 2961, 2978 n.8, 77 

L.Ed.2d 580 (1983). This type of relationship implies that at 

some point the ward will begin to take responsibility for handling its own affairs. See e.g. Cherokee Nation, 21 Cl. Ct. 565, 573 

(1990). Certainly, terminating a guardianship is an indication 

that the ward is expected to take responsibility for handling its 

own affairs. 
377 

38a 

claim." The court emphasized that the six-year statute of 

limitations, set forth in 28 U.S.C. § 2501, is not tolled by 

the Indians' ignorance of their legal rights. Menominee, 

726 F.2d at 720-21. Plaintiff presents a similar situation 

here, with a similar result. 

Accordingly, the claims accrued well over six years 

ago, and certainly no later than 1962, and the presence of 

a fiduciary relationship, even if it were ongoing (which it 

was not), does not serve to toll the statute of limitations. 

since the facts alleged in the Complaint reveal no possible 

basis on which the plaintiff can prevail, the defendant's 

motion to dismiss for lack of subject matter jurisdiction 

under USCC Rule 12(b)(l) is granted. W.R. Cooper Gen. 

Contractor, Inc. v. United States, 843 F.2d 1362, 1364 (Fed. 

Cir. 1988). 

CONCLUSION 

Defendant's motion to dismiss under usee Rule 

12(b)(l) is granted as the instant claims are barred by the 

statute of limitations discussed herein. The Complaint is 

to be dismissed for lack of subject matter jurisdiction, and 

judgment shall issue accordingly. 

Each party is to bear its own costs. 
378 

39a 

APPENDIX C 

UNITED STATES CLAIMS COURT 

CATAWBA INDIAN TRIBE 

OF SOUTH CAROLINA, 

Plaintiff, 

v. 

THE UNITED STATES 

OF AMERICA, 

Defendant. 

) 

) Docket No. 90-553 L 

) 

) COMPLAINT 

) 

) 

) 

) 

) 

----------------------) 

INTRODUCTION 

1. This is an action for money damages against the 

United States. This case arises out of defendant's breach 

of trust duties founded in federal treaty, federal statute, 

and federal common law; defendant's breach of contract; 

and defendant's taking of property without payment of 

compensation in violation of the Fifth Amendment to the 

United States Constitution. 

JURISDICTION 

2. The United States Claims Court has jurisdiction 

of this suit under 28 U.S.C. §§ 1505 and 1491, in that 

plaintiff states a claim for: 1) damages against the United 

States arising under the Constitution, laws, and treaties 

of the United States; and 2) damages against the United 

States founded upon breach of an implied contract with 

the United States. 
379 

40a 

PLAINTIFF 

3. Plaintiff Catawba Indian Tribe of South Carolina 

(Tribe) is a tribe of Indians that has resided in South 

Carolina in the vicinity of its present reservation since 

time immemorial. In 1760 and 1763, plaintiff entered into 

two treaties with the King of England. The Tribe currently 

resides on a reservation of approximately 630 acres outside the City of Rock Hill, South Carolina, which reservation is held in trust for the Tribe by the State of South 

Carolina. The Catawba Tribe is recognized as an Indian 

tribe by the United States, having been the subject of 

congressional legislation enacted in 1848, 1854, and 1959. 

Federal supervision and the government-to-government 

relationship between the Tribe and the United States were 

terminated by the 1959 Catawba Tribe of South Carolina 

Division of Assets Act, 25 U.S.C. §§ 931-938. The Catawba 

tribal government is presently organized pursuant to its 

inherent sovereign powers and under the laws of South 

Carolina as a nonprofit corporation. 

FACTS 

4. In 1760, the Honorable Edmund Atkin, Esq., His 

Majesty the King of England's Agent to and Superintendant [sic] for Indian Affairs in the Southern District of 

North America, negotiated a treaty with the Catawba 

Indian Nation whereby the Catawba Nation agreed to 

surrender its claims to a tract encompassing all lands 

within a 30-mile radius of the Catawba towns, which tract 

had been recognized as Catawba Indian Country by the 

Colony of South Carolina, in return for being permanently and quietly settled on a tract of land fifteen miles 
380 

41a 

square, which was to be surveyed to prevent intruders 

and upon which a fort was to be built for the Catawbas' 

protection. This treaty is known as the Treaty of Pine Tree 

Hill. By entering into this treaty, the Crown recognized 

the property rights of the Catawba Nation in these lands, 

rights which predated any United States interest in the 

area . These property rights were - and remain - recognized Indian title. 

5. On October 7, 1763, King George III of England 

issued the Royal Proclamation of 1763, 1 LAWS U.S. 

443-48, which ordered that no warrants of survey or 

patents be issued upon any lands which had been 

reserved to the Indians and further forbade private purchases of lands from the Indians and settlement upon 

Indian lands. This Proclamation esta!Jlished the policy 

that all grants of land from the Indians would be valid 

only with the approval of the Sovereign. 

6. On November 16, 1763, His Majesty's Superintendant [sic] for Indian Affairs in the Southern District, John 

Stuart, together with the Governors of the Southern Colonies, including South Carolina, negotiated the Treaty of 

Augusta with, among others, the Catawba Indian Nation. 

The Catawbas were told that the negotiators were acting 

"in the name and at the command of the Great King 

George" and that "our King and Father holds out his 

arms to receive and protect you from all your enemies 

and . . . you may be assured of his confirming to you all 

of your lands and hunting grounds" pursuant to the 1760 

Treaty of Pine Tree Hill. This treaty provided that the 

Catawba Nation would remain satisfied with the agreement contained in the 1760 Treaty of Pine Tree Hill, and 

the Governors and Superintendant [sic] in their port 
381 

42a 

promised that the terms of the Treaty of Pine Tree Hill 

would be fulfilled. COLONIAL RECORDS OF NORTH 

CAROLINA, vol. 2, 180-201 (1890). 

7. The 1763 Treaty, together with the 1760 Treaty, 

established a fiduciary duty on the part of the Crown to 

protect the Tribe in quiet possession of its reservation and 

to prevent encroachment on the Tribe's reservation by 

non-Indians. 

8. In 1772, the King's Superintendent of Indian 

Affairs, John Stuart, took affirmative actions to enforce 

the provisions of the 1760 and 1673 [sic 1763] Treaties and 

protect the Tribe in possession of its reservation, thus 

demonstrating that the Crown understood that it had 

undertaken fiduciary obligations to protect the Tribe in 

possession of its lands. Specifically, the King's Superintendent took action to defeat a plan by members of the 

South Carolina Legislature to lease the land to one of its 

members. The King's Superintendent, in a letter dated 

December 27, 1772, explained to the Governor the meaning of the Treaty and the Crown's obligations: 

The Land now Occupied by the Catawba 

Indians being a parcel of Fifteen Miles Square 

was, as well as a very considerable Extent of 

Country besides possessed by them when the 

Subjects of England first Settled in this part of 

the World; At the Congress held at Augusta in 

1763, by the Governors of Virginia So. & North 

Carolina & Georgia and the Superintendant of 

Indian Affairs in the Southern District. The said 

parcel of Land of Fifteen Miles Square, being 

judged by the Remains of the Said Once 

numerous and powerful Nation ... to be Sufficient for their Support & Maintenance ... and in 
382 

43a 

Consideration of their Having Voluntarily relinquished their Claims to a very extensive Territory as also of their Having been always 

faithfully & Cordially Attached to the British 

Interest, was in the mo st Solemn Manner 

reserved for their use by Treaty to the Observation of which the said Governor and Superintendant bound Themselves & Their Successors. 

The Catawbas never have by any Treaty or Publick Act Ceded the Land so Reserved to them by 

said Treaty of Augusta in 1763 to His Majesty, 

and Such a Cession cannot be negotiated for or 

accepted of, for & on Behalf of His Majesty, by 

any other person, than His Agent for & Superintendant of Indian Affairs without a Manifest 

Violation of His Majesty's Orders .. . 

Your Excellency & the Honorable Council, cannot in my humble Opinion with any Propriety 

or Shadow of Right grant or lease the Whole or 

any Part of the Catawba Lands for any purpose 

or upon any Pretence whatsoever until they 

shall have been first Ceded by said Indians to 

the Superintendant for His Majesty, without a 

Violation of every Order and Instruction Relative to Indian Lands. 

Stuart's efforts to defeat the plan were successful and his 

position on the matter was upheld by the Crown. In a 

letter to Stuart dated May 5, 1773, the Crown informed 

Stuart that "[t]he King very much approves the step you 

took to defeat Mr. Drayton's intended views." 

9. Upon the independence of the United States from 

Great Britain, the United States put itself in the place of 

the former sovereign and became invested with all of its 
383 

44a 

rights and obligations under the Treaties of 1760 and 

1763, as described in paragraphs 4, 6, 7 and 8 above. 

10. On July 22, 1790, Congress enacted the Indian 

Trade and Intercourse Act, presently codified at 25 U.S.C. 

§ 177, which continued the policy of the 1763 Proclamation and which provided then as it does now that no 

interest of any kind may be acquired in the lands of any 

Indian tribe other than by treaty or convention entered 

into pursuant to the Constitution, to which the United 

States is a party. Any interest acquired in violation of 25 

U.S.C. § 177 is void in law and equity. The Indian Trade 

and Intercourse Act establishes a trust duty on the part of 

the United States to protect the lands of any Indian tribe, 

including those of the Catawba Indian Tribe. 

11. On March 3, 1840, the State of South Carolina, 

without the consent and participation of the United 

States, concluded the Treaty of Nation Ford between the 

State and the Catawba Indian Tribe, whereby the State 

purported to extinguish the recognized Indian title of the 

Catawba Tribe to the entire 15 mile square tract secured 

to the Tribe in the 1760 and 1763 Treaties described in 

paragraphs 4 and 6 above. In return, the State promised 

to purchase for the Catawbas, at a cost of $5,000, a tract of 

land either in Haywood County, North Carolina, or in a 

similarly mountainous and unpopulated area in South 

Carolina and, in addition, agreed to pay the Tribe $2,500 

cash and $1,500 per year for nine years. 

12. On December 18, 1840, the Legislature of the 

State of South Carolina enacted legislation ratifying and 
384 

45a 

confirming the March 3, 1840 state treaty, which act provided for the conveyance of the title and interest purportedly acquired by the State of South Carolina in Catawba 

Reservation lands to the non-Indian lessees of such lands 

upon the application and payment by the lessees of certain fees or taxes. 

13. The Congress of the United States has never 

ratified or otherwise consented to the alienation of the 

Catawba Indian Reservation. Such ratification or consent 

is required by 25 U .S.C. § 177 and the federal common 

law for an alienation of Indian land to be effective. Thus, 

except as it is affected as a result of the acts, omissions 

and misrepresentations of the United States that give rise 

to this lawsuit, recognized Indian title and the right of 

possession to the 1763 Treaty Indian Reservation lands 

remains in the Catawba Indian Tribe and that land is not 

now and never has been the property of any other person 

or party. The Tribe's right and title to these lands is now 

and has since 1789 been subject to a federal trust responsibility founded in federal treaty, statute and common 

law, and protected by the Fifth Amendment fo the United 

States Constitution. 

14. Following the 1840 treaty, the State did not purchase a new reservation for the Catawba Tribe in North 

Carolina or in South Carolina as required by the 1840 

treaty. Instead, in 1842 the State of South Carolina bought 

back a 630 acre tract located within the boundaries of the 

1763 reservation which the Tribe had purportedly ceded 

to the state in the 1840 Treaty. The State paid $2,000 for 

this tract, which remains to this day the only land actually occupied and enjoyed by the Catawba Tribe. 
385 

46a 

15. Since prior to the adoption of the Constitution, 

the United States has been aware that the Catawba Tribe 

possessed recognized Indian title to lands in South Carolina and that the Tribe's lands were being encroached 

upon by non-Indians: 

a. In 1782, the Catawba Tribe petitioned the Continental Congress to protect its reservation lands. 

b. In 1791, chiefs of the Catawba Nation met President George Washington in Lancaster County, South Carolina and asked for protection of their treaty lands. 

c. In 1825, President James Monroe and Secretary of 

War John Calhoun reported to the Senate that the Catawbas were among those tribes which still held lands within 

the United States. An attached War Department chart 

indicated the Catawbas possessed 144,000 acres. 

16. Since shortly after the 1840 Treaty described in 

paragraph 11 above, the United States has been aware 

that the Catawbas lost possession of their lands without 

the participation or approval of the United States, that the 

Catawbas were homeless and destitute for extended 

periods of time, that the Catawbas contested the 1840 

Treaty and that the Catawbas desired federal assistance in 

securing the return of their lands or otherwise resolving 

their claim arising out of the 1840 Treaty: 

a. In the Act of July 29, 1848, Congress acknowledged the existence of the Catawba Tribe and demonstrated the United States' awareness that the Tribe had 

lost its lands by appropriating funds for the removal of 

the Catawbas west of the Mississippi River. 
386 

47a 

b. The 1849 Annual Report of the Commissioner of 

Indian Affairs notes the failure to find a home for the 

Catawbas among the Chickasaws in Indian Territory. 

c. In the Act of July 31, 1854, 10 Stat. 315, 316, 

Congress again recognized the existence of the Catawba 

Tribe and again appropriated funds for their removal 

west of the Mississippi. 

d. In 1887, Catawba Chief Thomas Morrison visited 

the Interior Department and petitioned the United States 

for assistance in resolving the Tribe's claim to its 144,000 

acre treaty reservation. 

e. Also in 1887, James Kegg wrote to Secretary of 

the Interior L.L.C. Lamar requesting United States assistance in reaching a settlement concerning the Catawba 

lands in South Carolina. 

f. In a letter dated November 28, 1889, Catawba 

Indian P.H. Head wrote to Senator William Teller inquiring as to the rights of the Catawbas to a 15 mile square 

tract of land in South Carolina, noting that in 1885 Catawba Indian James Harris visited Washington to investigate 

this claim. 

g. In an 1895 "Petition and Memorial in the Matter 

of Claims and Demands of the Catawba Indian Association, to the United States," a group of Catawbas asked the 

United States to investigate the claims of the Catawba 

Tribe and secure justice for the Tribe. They inquired 

whether the Catawbas have tribal lands in South Carolina 

to which title has not been extinguished and whether 

Catawbas may receive allotments of land under the General Allotment Act of 1887. 
387 

48a 

h. In 1905, the Catawba Tribe submitted to the 

Bureau of Indian Affairs a formal request for assistance 

based upon the requirements of the Nonintercourse Act 

asserting that the Tribe ~as entitled to rentals from the 

1763 treaty reservation or to recovery of possession of the 

land. The Tribe's request was accompanied by lengthy 

legal briefs which documented the history of the reservation and set forth the legal basis of the claim, i.e., that the 

Catawbas' lands were protected by federal law (the Nonintercourse Act). The Commissioner of Indian Affairs 

denied the request in 1906 based upon an erroneous legal 

interpretation that the Catawbas and their lands were not 

protected by federal law. 

i. In 1908, the Catawba Tribe again petitioned the 

United States for aid in securing from the State of South 

Carolina the land belonging to the Tribe in York and 

Lancaster Counties or, in the alternative, adequate compensation for the land. The petition, again accompanied 

by lengthy legal briefs detailing the history and the federal law basis of the claim, further requested the aid of 

the Justice Department in seeking a judicial determination of the claim. The Commissioner of Indian Affairs 

denied the Tribe's request in 1909. 

j. In 1910, the United States Indian Service of the 

Department of the Interior directed an investigation of 

the Catawba Tribe and their claims against the State. In 

1911, Special Indian Agent Davis submitted a 21-page 

report detailing the circumstances of the Tribe, their legal 

status as wards of the State without citizenship or access 

to the courts, their belief that the 1840 Treaty was unfair 

and illegal and their desire to secure a return of their 

reservation lands. Special Agent Davis told the Tribe that 
388 

49a 

their desire to secure a return of their lands was unrealistic and that they should submit their claim to the mercy 

of the State legislature. The 1911 Report of the Commissioner of Indian Affairs acknowledges and discusses the 

Catawba Tribe's unresolved land claim. 

k. In 1912 and 1913, the State of South Carolina 

requested the United States to take responsibility for the 

Catawba Tribe. 

1. In 1926, J. Clifford Newdl wrote to the Commissioner of Indian Affairs stating that he had been contracted by the Catawba Indians to investigate their land 

claims with the view of regaining possession of the land. 

m. In 1929, Catawba Chief Blue wrote to the Commissioner of Indian Affairs, stating that the Tribe was 

looking forward to a final settlement of its land claim 

with the State of South Carolina and asking how such 

settlement could be structured. 

n. In 1930, the United States Senate authorized the 

Bureau of Indian Affairs to investigate the Catawba 

Indians. Sen. Res. No. 217, 71st Cong., 2d Sess. (Feb. 26, 

1930). 

o. In 1930, a subcommittee of the Senate Committee 

on Indian Affairs held hearings in Rock Hill, South Carolina and visited the Catawba Indian Reservation. The 

Tribe's land claim arising out of the 1840 treaty was 

discussed at length, as was the extreme poverty and 

hardship occasioned by the Tribe's loss of possession of 

its reservation. 
389 

SO a 

p. In 1932, Catawba Chief Samuel Blue wrote to 

President Herbert Hoover asking for assistance for the 

Catawba Tribe. 

q. In 1933, Catawba Agent T.O. Flowers wrote to 

Commissioner John Collier requesting assistance for the 

Catawba Tribe. 

r. In 1934, Catawba Chief Samuel Blue wrote to 

President Franklin D. Roosevelt appealing for assistance 

to the Catawba Tribe. 

s. In 1935, the Bureau of Indian Affairs conducted 

an extensive investigation of the Catawba Reservation 

and alternatives for federal assistance in rehabilitating 

the Tribe and its members. 

t. In a January 1937 letter from Professor Speck of 

the University of Pennsylvania, the Commissioner of 

Indian Affairs was advised of an offer to the Catawba 

Tribe by the State of South Carolina to settle the Tribe's 

claim to 144,000 acres for $250,000. D' Arcy McNickle 

investigated the proposed settlement at the direction of 

the Commissioner and submitted a report to the Commissioner stating, among other things, that the State had 

taken the Tribe's lands in an 1840 treaty, that the state had 

not fulfilled the terms of the treaty, and that the state had 

on occasion in the past acknowledged that the 1840 treaty 

was never fairly carried out. McNickle ajso reported that 

the Catawba Indians' economic condition was as hopeless 

as it could be. 

u. In 1938 and 1940, the Interior Department 

opposed legislation that, if enacted, would have extended 

federal services to the Catawba Tribe, and further would 
390 

51 a 

have provided for establishment of a large r reservation 

for the Tribe at no cost to the United States. 

v. In 1939, Catawba Indian P.H. Head wrote President Roosevelt stating that both the State of South Carolina and the United States have ignored the Tribe's land 

claim and requesting that a settlement be made. 

w. In 1940, BIA official Ward Shepard reported that 

the Catawba Tribe probably has a claim against the State 

of South Carolina arising out of the 1840 treaty. 

x. In 1941, the Interior Department took affirmative 

steps to protect the Tribe's land claim and refused to 

accede to the desires of the State of South Carolina that a 

proposed agreement for rehabilitation of the Catawba 

Tribe include a provision for extinguishment of the 

Tribe's land claim. In a 1942 memorandum to the Commissioner of Indian Affairs, the Solicitor noted with 

approval that the claim-extinguishment provision had 

been deleted, characterizing the claim as one which the 

Tribe "might be able to enforce in the courts." 

y. On December 14, 1943, the State of South Carolina, the Catawba Indian Tribe and the Secretary of the 

Interior entered into a Memorandum of Understanding to 

provide relief and rehabilitation assistance to the Catawba 

Tribe. The agreement did not provide for extinguishment 

of the Tribe's claim. Pursuant to the agreement, the Secretary accepted title to 3,434 acres of land, more or less, and 

held the same in trust for the Catawba Tribe of South 

Carolina. 

17. In 1944, the Solicitor of the Interior Department 

in a written opinion concluded that the Catawba Tribe 
391 

52a 

had been federally recognized since the 1848 Congressional Act described in paragraph 16 a. above, and that 

the Tribe was therefore eligible to adopt a constitution 

under the Indian Reorganization Act. 

18. On June 30, 1944, the Secretary of the Interior 

approved the Catawba Tribe's constitution under the 

Indian Reorganization Act. 

19. In 1953, Congress declared it to be the policy of 

the United States to terminate the Federal Government's 

trust responsibilities toward Indian tribes. 

20. In 1958, Congress and the Eisenhower Administration revised the termination policy to abandon coercive termination and require tribal consent as a 

prerequisite to termination of federal trust relationship. 

21. During the period 1958 to 1962, the Department 

of the Interior acted consistently with the revised federal 

termination policy: Interior Department officials negotiated with the tribal leaders to secure tribal consent to its 

termination proposal and the sponsoring Congressman 

and Congress itself took measures to ensure that the Tribe 

consented to termination. 

22. At no time during the period 1953 to 1962, during which the Federal Government implemented its plan 

to terminate the federal trust relationship with the Catawba Tribe, was the Catawba Tribe represented by legal 

counsel. 

23. In addition to the fiduciary duties founded in 

federal treaty, statute and common law, the United States, 

through its affirmative acts, representations, and conduct, 
392 

53 a 

has undertaken the fiduciary responsibility of protecting 

the Tribe's land claim. 

24. In 1958, when the United States began its active 

effort to terminate federal supervision and services to the 

Catawba Tribe, the United States had full knowledge of 

the Tribe's land claim and the fact that the Tribe had 

consistently, over at least the previous 70 years, contested 

the validity of the 1840 state treaty. 

25. In its efforts to secure the Tribe's consent to its 

termination proposal, federal officials took advantage of 

tribal dissatisfaction with the BIA's failure to provide 

services under the 1943 Memorandum of Understanding 

and the Trie's [sic] resultant inability to productively use 

the 3,434 acres held in trust by the Secretary. Federal 

officials characterized termination to the Tribe as a process for dividing the Tribe's 3,434 acres, acquired in 1943, 

among tribal members. Through this device, the Indians 

were told, they would be given full title to their lands and 

as a result would be able to mortgage the land to finance 

housing and farming, etc., assistance which the BIA was 

unable or unwilling to provide. 

26. In 1958, the Bureau of Indian Affairs assigned 

Program Officer Raymond Bitney to the Catawba Reservation for the purpose of securing tribal consent to the 

Bureau's plan to terminate federal responsibilities to the 

Catawba Tribe. 

27. To secure tribal consent to termination in late 

1958 and early 1959, Bitney met numerous times with 

individual Catawba Indian leaders and family heads in 

their homes and filed reports detailing the results of his 

meetings and the attitudes of the tribal members with 
393 

54 a 

whom he spoke. Bitney's report of January 30, 1959 

reveals that in late 1958 several tribal officials expressed 

concern about the Tribe's land claim against the state, 

with one tribal official stating that the BIA's proposed 

division of tribal assets could not go forward until after 

the Tribe's land claim was resolved. The tribal officials 

were assured by Bitney that the Tribe's land claims would 

not be jeopardized by the Bureau's proposal to terminate 

federal responsibilities. At no time did Bitney advise the 

Tribe to seek independent legal counsel. 

28. On January 3, 1959, Bitney attended the General 

Council meeting at which the Tribe voted to accept the 

Federal Government's proposal to divide tribal assets. No 

written resolution was considered by the Tribe at this 

meeting. 

29. Prior to January 26, 1959, Agent Bitney was 

asked to draft a written resolution for the Tribe in support of termination. On January 24, 1959, in a meeting 

with Chief Albert Sanders, Bitney drafted the resolution 

for the Tribe "making sure it was exactly what Albert 

wanted" and had it typed for the Chief. The resolution 

was back-dated to January 3, 1959. Agent Bitney then 

accompanied Chief Sanders to visit each of the other 

Executive Committee members and have them sign the 

resolution. 

30. The resolution drafted by Bitney specifically 

conditioned the Tribe's consent to termination upon nothing in the legislation affecting the status of any claim 

against the State of South Carolina by the Catawba Indian 

Tribe. Thereafter, the BIA sent the resolution to Congressman Robert W. Hemphill. 
394 

55 a 

31. On January 26, 1959, Congressman Robert W. 

Hemphill requested the BIA to draft legislation "to 

accomplish the desire [of the Tribe] set forth in the Resolution." 

32. On February 5, 1959, Douglas Summers Brown 

(Mrs. Henry Dockery Brown), author of The Catawba 

Indians: People of the River, wrote to Agent Bitney documenting the existence of a tribal claim and setting forth in 

detail a history of the 1840 state treaty and the eventual 

creation of the 630 acre State reservation. Brown also 

stated her conclusions that the Tribe had never been paid 

in full for the lands taken from it by the State and that 

"[t]herefore, any agreement or settlement made now cannot be final, but the question will be brought up again 

and again in the future." 

33. Prior to March 28, 1959, the BIA drafted termination legislation for Congressman Hemphill. This legislation did not mention the land claim but did provide 

generally for the application of State law to the Tribe and 

for the nonapplicability of federal laws which affect 

Indians because of their status as Indians. 

34. On March 28, 1959, Congressman Hemphill and 

Bureau of Indian Affairs officials met with the Tribe and 

reviewed the bill. Congressman Hemphill told the Tribe, 

according to the BIA's minutes of the meeting, that he 

had had the "legislation drawn up to carry out the intent 

of the resolution" and that he would not introduce the 

bill without the Tribe's approval. Relying on the assurances of federal officials that the claim would not be 

jeopardized and that the officials were acting in the 
395 

56 a 

Tribe's best interest, the Tribe then approved introduction 

of the legislation. 

35. The Catawba Indian Tribe understood the proposed legislation being considered at the March 28, 1959 

meeting to be a "contract that was drawn up by the 

Bureau of Indian Affairs:" it was exclusively characterized as such in the tribal minutes of the March 28 

meeting and that is what was voted on and approved at 

the March 28 meeting. 

36. Both the federal officials who negotiated to 

obtain tribal consent to termination of federal supervision 

and the tribal officials who consented, understood and 

intended that a condition of tribal consent was that the 

land claim would not be jeopardized or affected in any 

way by the enactment of the legislation being proposed 

by the Interior Department. 

37. Agent Bitney, as well as the other federal officials who met with officials of the Catawba Tribe for the 

purpose of obtaining tribal consent, had actual authority 

to bind the United States to the conditions upon which 

tribal consent had been obtained. 

38. On April 6, 1959, BIA Assistant Commissioner 

Reid wrote Agent Bitney congratulating him on the success of the Catawba termination proposal and notifying 

Bitney that the BIA had edited his report: "For your 

information, we have deleted any controversial statements with the idea that in the event they are called for 

by the committee, a clean report free of controversial 

issues will be available for them. We are retaining your 

draft copies in our ·confidential file." 
396 

57 a 

39. In its testimony and reports to Congress on the 

termination bill, the Department of the Interior emphasized that the Catawba Tribe had consented to its termination proposal, but did not mention to Congress that the 

Tribe's consent had been conditioned upon protection of 

its land claim. 

40. In its testimony and reports to Congress on the 

termination bill, the Department of the Interior failed to 

even mention the existence of the Tribe's claim, and misrepresented to Congress the history of the Tribe's reservation in such a fashion as to mislead Congress. The 

Departmental Reports falsely stated that the Tribe's 1763 

Treaty was with South Carolina when in fact the Treaty 

was with the King of England, thereby creating the false 

impression that the United States had no obligation 

under the 1763 Treaty. Furthermore, the Departmental 

Reports falsely stated that the 1840 treaty was a cession 

by the Tribe of all but its present 640 acre reservation and 

created the false impression that the Tribe's loss of possession of its 1763 treaty reservation was not contested by 

the Tribe and that the Tribe had no claims arising out of 

the loss of possession of its treaty reservation. Specifically, the Departmental Report stated: 

The Catawba Indians in South Carolina have 

only a relatively short history of relationships 

with the Federal Government. They made a 

treaty with South Carolina on November 10, 

1763, by which their original reservation was set 

aside for them. In 1840 they agreed with the 

State to a cession of this reservation with the 

exception of a single square mile of land, which 

is still held in trust for them by the State. In 

return for the Catawba land, the State provided 
397 

58 a 

services to them. The United States never made a 

treaty with these Indians. they [sic] have no 

claims filed with the Indian Claims Commission. 

41. Congress enacted the Catawba Indian Tribe of 

South Carolina Division of Assets Act on September 21, 

1959, 25 U.S.C. §§ 931-938, without amending the language which the Tribe had approved on March 28, 1959, 

and which the Tribe had been assured would not jeopardize or affect the land claim or its status. 

42. Congress did, however, amend the bill to provide that the 1959 Act would not take effect until a 

majority of the adult members of the Tribe agreed to a 

division of tribal assets in accordance with the termination act. The Department of the Interior announced tribal 

agreement on June 30, 1960. The termination act did not 

become effective until two years later on July 1, 1962. 

43. All federal trust responsibilities to preserve and 

protect tribal property and claims continued in full force 

and effect until the effective date of the termination act 

on July 1, 1962. 

44. Throughout the period of time following enactment of the termination act and up to June 30, 1960, when 

the Department of the Interior announced that a majority 

of the Catawbas had voted to accept the termination act, 

Interior Department officials actively sought to persuade 

tribal members to vote for the termination act and continued to assure the members of the Tribe that the 1959 Act 

would not jeopardize their land claim and that the 1959 

Act implemented the Tribe's resolution dated January 3, 

1959. Tribal members who agreed to termination relied on 

the representations and assurances of federal officials. 
398 

59 a 

45. A July 11, 1961 letter from BlA Program Officer 

Arthur Arnston to the Commissioner of Indian Affairs 

forwards to the Commissioner a copy of Mrs. Brown's 

letter of February 5, 1959 to Agent Bitney regarding the 

Tribe's land claim, described in paragraph 32 above. 

Amston states that "the Catawba land claim ... is often 

mentioned by Chief Albert Sanders. Sr." The Program 

Officer concludes: "I have made no comments." 

46. At no time did the United States advise the Tribe 

of the necessity of filing a lawsuit within a timeframe in 

order to protect the claim from the running of a statute of 

limitations, nor did the United States file, on behalf of the 

Tribe, a protective lawsuit within the limitations period 

which had become applicable as a result of the 1959 Act. 

47. The United States concealed from the Tribe its 

failure to protect the Tribe's land claim and, as a result, 

the Tribe was unaware that a limitations period had been 

applied to its land claim. 

48. From the date of enactment of the termination 

act, until May 1985, when the United States filed an 

amicus brief in the United States Supreme Court arguing 

that the 1959 Act imposed state statutes of limitation on 

the Tribe's land claim, the Tribe continued to rely on the 

misrepresentations of Interior Department officials that 

the 1959 Act did not jeopardize or affect the land claim or 

its status. 

49. At no time prior to 1985 did the United States 

advise the Tribe that the 1959 Division of Assets Act 

might affect or limit the Tribe's land claim. 
399 

60a 

50. In 1975, the Tribe retained legal counsel to pursue its land claim. 

51. In 1976, the Tribe again petitioned the Department of the Interior to initiate legal action to secure the 

return of the 1763 reservation. 

52. In 1977, the Solicitor of the United States Department of the Interior concluded, in a formal litigation request 

to the Department of Justice, that the Catawba Tribe had 

been dispossessed of its treaty reservation in violation of 

federal law; that the 1840 treaty was void; that the Tribe 

could establish a prima facie case for repossession of its 

reservation under the Nonintercourse Act; that "the United 

States has had a duty under the Non-intercourse Act, since 

the Treaty claim accrued in 1840, to take action to protect the 

Catawba's rightful ownership of the 1763 reservation;" that 

"this duty was not affected by the 1959 ... Act;" that the 

United States "had never taken any action to fulfill its duty 

to help the Catawba recover the land;" that the United States 

had denied legal assistance to the Tribe under an erroneous 

legal theory, and that "the United States had an obligation to 

bring an action on behalf of the Tribe to obtain return of their 

lands to tribal ownership." The Solicitor's litigation report 

concluded: "Thus, the case is a particularly inviting one for a 

negligence claim against the United States should this 

Department fail to advocate relief of the Catawba." 

53. In 1978 or 1979, Interior withdrew its litigation 

request after being advised by the Department of Justice 

that the Attorney General would not authorize suits on 

behalf of Indian tribes to displace non-Indian occupants 

of land wrongfully taken from tribes. 
400 

61a 

54. On October 28, 1980, after the failure of lengthy 

efforts to settle the claim, the Tribe filed suit in federal 

district court seeking the return of possession of its 1763 

treaty reservation and trespass damages. 

55. In 1983, the United States Court of Appeals for 

the Fourth Circuit held, among other things, that the 1959 

Act did not extinguish federal trust responsibility to the 

1763 Treaty lands and did not make state statutes of 

limitations applicable to the Tribe's land claim. Catawba 

Indian Tribe v. State of S.C., 718 F.2d 1291 (4th Cir. 1983). 

56. In 1986, the United States Supreme Court 

reversed the court of appeals and ruled that the 1959 

Termination Act resulted in the application of South Carolina state statutes of limitations to the Catawba land 

claim. South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 

498 (1986). 

57. In 1989, the United States Court of Appeals for 

the Fourth Circuit ruled that the applicable South Carolina statute of limitations would operate to bar the Tribe's 

claim to any lands that had been adversely possessed for 

ten continuous years, without tacking, during the period 

between July 1, 1962 (the effective date of the termination 

act) and October 28, 1980 (the date the Tribe filed its land 

claim) and remanded the case to the district court for 

further proceedings. Catawba Indian Tribe v. State of S.C., 

865 F.2d 1444 (4th Cir. 1989). 

58. As a result of the actions of the United States 

and the 1986 and 1989 judicial interpretations of the 1959 

Act referred to in paragraphs 56 and 57 above, a substantial, though as yet undetermined, portion of the Tribe's 

land claim was barred and permanently lost before the 
401 

62a 

United States notified the Tribe in May, 1985 that it 

believed that the 1959 Act resulted in the application of 

state statutes of limitations to the Tribe's claim. 

59. Based on the prior representations of federal 

officials and the duties and obligations undertaken by the 

United States, the Tribe had no reason to know or believe 

that its claim became subject to state statutes of limitations as a result of the 1959 Act. The Tribe was not made 

aware that the United States believed that the 1959 Act 

resulted in the application of state statutes of limitations 

until the United States filed its brief in the United States 

Supreme Court in May, 1985 and the Tribe was not made 

aware that the 1959 Act actually resulted in application of 

state statutes of limitations until the Supreme Court 

issued its decision in June, 1986. Both the position taken 

by the United States in its 1985 brief and the Supreme 

Court's 1986 interpretation of the 1959 Act, were unanticipated by the Tribe. 

60. Prior to the final judicial interpretation in 1986 

of the meaning of the 1959 Act with respect to application 

of state law limitations periods, the Tribe had no way of 

knowing it had actually suffered damages as a result of 

actions by the United States. Had the Supreme Court 

ruled in the Tribe's favor, the Tribe would have no cause 

of action against the United States arising out of the 

events and actions surrounding the 1959 Act. Thus, the 

final judicial determination in 1986 was a prerequisite to 

enable the Tribe to determine its rights and to determine 

whether it had suffered damages because of the United 

States' nonfeasance during the period 1958 to 1962. 
402 

63a 

61. The acts, omissions, and misrepresentations of 

the Interior Department, together with the actions of 

Congress and the 1986 and 1989 judicial interpretations of 

the 1959 Act referred to in paragraphs 56 and 57 above, 

have resulted in a substantiat though as yet undetermined, portion of the Tribe's land claim being barred and 

permanently lost. Because the Tribe's rights in its Treaty 

reservation are vested property rights protected by the 

Fifth Amendment to the United States Constitution, the 

actions of the United States constitute a taking of property without payment of compensation. 

62. As a result of the loss of possession of its treaty 

reservation lands between 1790 and 1840 and the United 

States' failure to protect the Tribe in possession of its 1763 

Treaty reservation lands, the Tribe has suffered great 

damage. 

63. As a result of the United States' repeated refusal 

to take action to restore the Tribe to possession of its 

treaty reservation lands, the Tribe has suffered great damage. 

64. As a result of the Treaties of 1760 and 1763, the 

1790 Nonintercourse Act, the 1943 Memorandum of 

Understanding, and the affirmative acts, representations 

and conduct of federal officials, the United States had 

and undertook control or supervision over Catawba tribal 

property. This created a fiduciary responsibility on the 

part of the United States to protect Catawba tribal assets 

from waste and mismanagement, a fiduciary duty on the 

part of the United States not to squander tribal lands and 

claims to lands in favor of third parties, and a fiduciary 
403 

64a 

obligation to initiate litigation in a timely fashion to 

protect tribal assets. 

65. The Interior Department's misrepresentations to 

Congress in 1959 and its concealment from Congress of 

the existence of the Catawba Tribe's land claim and the 

conditions upon which the Tribe's consent to termination 

had been obtained, resulted in the enactment by Congress 

of a law which applied state statutes of limitation to the 

Tribe's claim. The Interior Department's concealment 

from the Tribe of its failure to protect the claim from the 

effects of the 1959 Act, together with its failure to either 

advise the Tribe that the 1959 Act applied state statutes of 

limitations to the Tribe's claim or file a protective action 

on the Tribe's behalf, have resulted in an as yet undetermined portion of the Tribe's land claim being barred and 

permanently lost, to the Tribe's great damage. 

66. Section 3 of the 1959 Act, 25 U .S.C. § 933(f), 

requires the Secretary of the Interior to sell all assets of 

the Tribe that are not selected and conveyed to members 

under the Act and to distribute the proceeds to the Tribe. 

The Tribe's land claim is an asset of the Tribe within the 

meaning of the 1959 Act. The Secretary has failed to quiet 

title to the Treaty Reservation in the Tribe or to sell or 

convey that asset to a trustee selected by the Secretary for 

disposition as required by § 933, to the Tribe's great and 

continuing damage. 

CLAIM NO. 1 

65. Paragraphs 1 through 66 are hereby incorporated by reference. 
404 

65a 

66. The United States had treaty, statutory and federal common law fiduciary duties to protect the Tribe in 

possession of its treaty reservation lands. The United 

States' failure to carry out those duties, thereby permitting the Tribe to lose possession of its entire treaty reservation, constitutes a breach of trust for which the United 

States is liable. 

CLAIM NO.2 

67. Paragraphs 1 through 66 are hereby incorporated by reference. 

68. The United States had treaty, statutory and federal common law fiduciary duties to investigate and take 

action to restore the Tribe to possession of its treaty 

reservation. The United States' failure to carry out those 

duties constitutes a breach of trust for which the United 

States is liable. The failures of the government and the 

resulting damage to the Tribe have been continuing. 

CLAIM NO.3 

69. Paragraphs 1 through 66 are hereby incorporated by reference. 

70. The United States, through treaty, statute, federal common law, agreement and through its conduct and 

affirmative acts, had and undertook the fiduciary responsibility to preserve the Tribe's assets and specifically to 

protect the Tribe's land claim. The United States' failure 

to carry out those responsibilities constitutes a breach of 

trust for which the United States is liable. The failures of 
405 

66a 

the government and the resulting damage to the Tribe 

have been continuing. 

CLAIM NO.4 

71. Paragraphs 1 through 66 are hereby incorporated by reference. 

72. The United States, through its affirmative acts 

and conduct, undertook the responsibility to protect the 

Tribe's land claim from the effects of the 1959 Act: this 

included the duty to notify the Tribe that, as a result of 

the 1959 Act and contrary to government officials' assurances, the Tribe would be required to file its land claim 

within a period of years or it would be barred . The 

United States' failure to carry out that responsibility constitutes a breach of trust for which the United States is 

liable. 

CLAIM NO.5 

73. Paragraphs 1 through 66 are hereby incorporated by reference. 

74. The actions of the United States which have 

resulted in the permanent loss of the Tribe's claim to 

possession of a large portion of the 1763 Treaty reservation constitute a breach of a contract implied-in-fact, 

entered into between the United States and its tribal 

beneficiaries providing that the United States would, 

among other things, protect the Tribe's land claim from 

the effects of the 1959 Act in return for the Tribe's consent 

to the withdrawal of federal supervision. 
406 

67a 

CLAIM NO.6 

75. Paragraphs 1 through 66 are hereby incorporated by reference. 

76. The actions of the United States which have 

resulted in the permanent loss of the Tribe's claim to 

possession of a large portion of the 1763 Treaty reservation constitute a taking of the Tribe's vested property 

rights in violation of the Fifth Amendment to the United 

States Constitution. 

CLAIM NO.7 

77. Paragraphs 1 through 66 are hereby incorporated by reference. 

78. Pursuant to 25 U .S.C. § 933, the United States 

has a continuing duty to quiet title to the lands of the 

1763 Treaty reservation in the Tribe and distribute the 

proceeds among the members of the Tribe. The United 

States has failed to carry out that duty. The failure of the 

government and the resulting damage to the Tribe have 

been continuing. 

RELIEF 

WHEREFORE, plaintiff prays that this Court find: 

1. That the United States breached its fiduciary 

duties to the Tribe to: 

a) protect the Tribe in possession of its reservation; 

b) take action to restore the Tribe to possession of its reservation; 
407 

68a 

c) protect Catawba tribal assets from waste 

and dissipation; 

d) protect the Tribe's land claim from the 

effects of the 1959 Act; 

and is liable for damages arising from that 

breach. 

2. That the United States breached its implied 

contract with the Tribe to protect the Tribe's 

land claim from the effects of the Termination Act in return for the Tribe's consent to 

the United States' termination proposal and 

that such breach gives rise to contract damages. 

3. That the actions of the United States constitute a taking of the Tribe's vested property 

rights in violation of the Fifth Amendment 

to the United States Constitution for which 

compensation and interest to the Tribe is 

due. 

4. That the United States breached its statutory 

fiduciary duty to quiet title to the 1763 reservation in the Tribe and distribute the proceeds among tribal members and is liable for 

damages arising from that breach. 

Plaintiff further prays that this Court award it damages, the costs of this action, attorney's fees and such 

further relief as the court may deem appropriate. 
408 

69a 

DATED this 19th day of June, 1990. 

Respectfully submitted, 

/s/ Don B. Miller 

Don B. Miller 

Attorney of Record 

NATIVE AMERICAN 

RIGHTS FUND 

1506 Broadway 

Boulder, Colorado 80302 

(303) 447-8760 

Faith Roessel 

Of Counsel 

Native American Rights Fund 

1712 N Street N.W. 

Washington, D.C. 20036 

(202) 785-4166 

Jay Bender 

BELSER, BAKER, BARWICK, 

RAVENEL & BENDER 

Of Counsel 

P.O. Box 8057 

1730 Main Street 

Columbia, SC 29202 

(803) 799-9091 

Robert M. Jones 

Of Counsel 

P.O. Box 706, CSS 

123 Workman 

Rock Hill, SC 29211 

(803) 324-2988 

Richard Steele 

Of Counsel 

113 West Main Street 

Union, SC 29379 

(803) 427-8471 

Attorneys for Plaintiff 
409 

70a 

APPENDIX D 

SUPREME COURT OF THE UNITED STATES 

October Term, 1985 

SOUTH CAROLINA et al., Petitioners 

v. 

CATAWBA INDIAN TRIBE, INC. 

476 US 498, 90 L Ed 2d 490, 106 S Ct 2039 

[No. 84-782] 

Argued December 12, 1985. Decided June 2, 1986. 

APPEARANCES OF COUNSEL 

James D. St. Clair argued the cause for petitioners. 

Don Brantley Miller argued the cause for respondent. 

Briefs of Counsel, p 1104, infra. 

OPINION OF THE COURT 

Justice Stevens delivered the opinion of the Court. 

At issue in this litigation is the right to possession of 

a "Tract of Land of Fifteen Miles square" described in a 

1763 treaty between the King of England and the Catawba Head Men and Warriors.1 The tract, comprising 

t The 1763 Treaty of Fort Augusta was entered into by the 

Catawbas and British and colonial officials, and provides, in 

relevant part: 

"And We the Catawba Head Men and Warriors in Confirmation 

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 
410 

71a 

144,000 acres and 225 square miles, is located near the 

northern border of South Carolina; some 27,000 persons 

now claim title to different parcels within the tract. The 

specific question presented to us is whether the State's 

statute of limitations applies to the Tribe's claim. The 

answer depends on an interpretation of a statute enacted 

by Congress in 1959 to authorize a division of Catawba 

tribal assets. See 25 usc§§ 931-938 [25 uses§§ 931-938). 

We hold that the State's statute applies, but we do not 

reach the question whether it bars the Tribe's claim. 

Simply stated, the Tribe2 claims that it had undisputed ownership and possession of the land before the 

first Nonintercourse Act was passed by Congress in 

1790;3 that the Nonintercourse Act prohibited any conveyance of tribal land without the consent of the United 

States; and that the United States never gave its consent 

the aforesaid survey shall be compleated 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." XI Colonial Records of North 

Carolina 201-202 (1763), reprinted in App 35. 

2 The respondent, Catawba Indian Tribe, Inc., is a nonprofit 

corporation organized under the laws of South Carolina in 1975. 

Like the District Court and the Court of Appeals, we assume 

that the respondent is the successor in interest of the Catawba 

Indian Tribe of South Carolina. For convenience, we refer to the 

respondent as the "Tribe" throughout this opinion. 

3 See Act of July 22, 1790, ch 33, § 4, 1 Stat. 138. The Act, 

now codified at 25 usc§ 177 [25 uses§ 177], states in relevant 

part: "No purchase, grant, lease, or other conveyance of lands, 

or of any title or claim thereto, from any Indian nation or tribe of 

Indians, shall be of any validity in law or equity, unless the same 

be made by treaty or convention entered into pursuant to the 

Constitution." 
411 

72a 

to a conveyance of this land. Accordingly, the Tribe's 

purported conveyance to South Carolina in 1840 is null 

and void. Among the defenses asserted by petitioners4 is 

the contention that, even if the Tribe's claim was valid 

before passage and enactment of the Catawba Division of 

Assets Act, § 5 of the Act made the state statute of 

limitations applicable to the claim. Because that is the 

only contention that we review, it is not necessary to 

describe much of the historical material in the record. 

I. 

In 1760 and 1763, the Tribe surrendered to Great 

Britain its aboriginal territory in what is now North and 

South Carolina in return for the right to settle permanently on the "Tract of Land of Fifteen Miles square" that 

is now at issue. For purposes of this summary judgment 

motion, it is not disputed that the Tribe retained title to 

the land when the Nonintercourse Acts were passed. 

By 1840, the Tribe had leased most, if not all, of the 

land described in the 1763 treaty to white settlers. In 

1840, the Tribe conveyed its interest in the "Tract of Land 

of Fifteen Miles square" to the State of South Carolina by 

entering into the ''Treaty of Nation Ford." In that treaty, 

the State agreed, in return for the "Tract," to spend $5,000 

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

advance, and to make nine annual payments of $1,500 in 

4 The petitioners include the State of South Carolina and 

approximately 76 other parties who are named as defendants in 

the complaint; they were sued as representatives of a class that 

was alleged to consist of the approximately 27,000 persons who 

claim an interest in the disputed land. 
412 

73a 

the ensuing years. In 1842, the State purchased a 630-acre 

tract as a new reservation for the Tribe, which then apparently had a membership of about 450 persons. 5 This land 

is still held in trust for the Tribe by South Carolina. 

The Tribe contends that the State did not perform its 

obligations under the treaty - it delayed the purchase of 

the new reservation for over 21/2 years; it then spent only 

$2,000 instead of $5,000 to purchase the new land; and it 

was not actually "new" land because it was located 

within the original 144,000-acre tract. Still more importantly, as noted, the Tribe maintains that this entire transaction was void because the United States did not consent 

to the conveyance as required by the Nonintercourse Act. 

At various times during the period between 1900 and 

1943, leaders of the Tribe applied to the State for citizenship and for a "final settlement of all their claims against 

the State." 6 Petitioners argue that these claims merely 

sought full performance of the State's obligations under 

the 1840 treaty, but, for purposes of our decision, we 

accept the Tribe's position that it was then asserting a 

claim under the Nonintercourse Acts and thus challenging the treaty itself. In any event, both state officials and 

representatives of the Federal Government took an interest in the plight of the Tribe.7 

s An 1825 War Department chart indicated that the Catawbas totaled 450 persons. 2 American State Papers 545 (1925). 

6 See 1920 SC acts 1700, Joint Res No. 904, § 1. 

7 In 1930, a Subcommittee of the Senate Committee on 

Indian Affairs held hearings in Rock Hill, South Carolina, which 

is located in the 144,000-acre tract. Senator Thomas of Oklahoma wrote that the "subcommittee ... found some hundred 
413 

74a 

In response to this concern, on December 14, 1943, 

the Tribe, the State, and the Office of Indian Affairs of the 

Department of the Interior entered into a Memorandum 

of Understanding which was intended to provide relief 

for the Tribe, but which did not require the Tribe to 

release its claims against the State. 8 Pursuant to that 

agreement, the State purchased 3,434 acres of land at a 

cost of $70,000 and conveyed it to the United States to be 

held in trust for the Tribe. 9 The Federal Government 

agreed to make annual contributions of available sums 

for the welfare of the Tribe and to assist the Tribe with 

education, medical benefits, and economic development. 

For its part, the Tribe agreed to conduct its affairs on the 

basis of the Federal Government's recommendations; it 

and seventy-five remnants of this band located on a tract of 

practically barren rock and gradually starving to death ." Division of Tribal Assets of Catawba Indian Tribe, Hearings on HR 

6128, before the Subcommittee on Indian Affairs of the House 

Committee on Interior and Insular Affairs, 86th Cong. 1st Sess 

(unpublished), Insert 5, at 3 (Minutes of State and Federal Conference, Oct. 21, 1958) (6 Record Ex 56), quoting Feb. 10, 1932, 

letter, Senator Thomas to Commissioner Rhoads. 

s Preliminary drafts of the Memorandum of Understanding 

contained a provision extinguishing the Tribe's reservation 

claim (6 Record Ex 49), but that provision was deleted . The 

Solicitor of the Department of the Interior emphasized that the 

agreement should not use "a contract under the Johnson-O'Malley Act in order to deprive the Indian tribe vf claims which it 

might be able to enforce in the courts." United States Department of the Interior, Office of the Solicitor, Memorandum for the 

Commissioner of Indian Affairs. Id., Ex 50, p 3. 

9 The State also agreed to appropriate at least $9,500 annually for three years for the benefit of the Tribe and to extend to 

Catawbas the rights and privileges of all citizens, including 

admission to public schools. Ibid. 
414 

75a 

thereafter adopted a constitution approved by the Secretary of the Interior pursuant to the Indian Reorganization 

Act, 25 usc § 476 [25 uses § 476). 

In 1953, Congress decided to make a basic change in 

its policies concerning Indian affairs. The passage of 

House Concurrent Resolution 108 on August 1, 1953,1° 

marked the beginning of the "termination era" -a period 

that continued into the mid-1960s, in which the Federal 

Government endeavored to terminate its supervisory 

responsibilities for Indian tribes.n Pursuant to that policy, the Federal Government identified the Catawba Tribe 

as a likely candidate for the withdrawal of federal 

to That Resolution declared: "[l]t is the policy of Congress, 

as rapidly as possible, to make the Indians within the territorial 

limits of the United States subject to the same laws and entitled 

to the same privileges and responsibilities as are applicable to 

other citizens of the United States, to end their status as wards 

of the United States, and to grant them all of the rights and 

prerogatives pertaining to American citizenship." HR Con Res 

108, 83d Cong, 1st Sess (1953), 67 Stat B132. 

11 According to one compilation, between 1954 and 1962, 

Congress passed 12 separate "Termination Acts," the 11th of 

which was the Catawba Act. See F. Prucha, The Great Father 

1048 (1984). The termination policy has been criticized by various commentators. See, e. g., Cornell, The New Indian Politics, 

10 Wilson Q 113, 121 (1986); F. Prucha, supra, at 1046-1059; 

Wilkinson & Biggs, The Evolution of the Termination Policy, 5 

American Indian L Rev 139 (1977); Preloznik & Felsenthal, The 

Menominee Struggle to Maintain Their Tribal Assets and Protect 

Their Treaty Rights Following Termination, 51 NDL Rev 53 

(1975). The ultimate legislative wisdom of the termination policy is, of course, not before the Court. 
415 

76a 

services.12 Moreover, members of the Tribe desired an 

end to federal restrictions on alienation of their lands in 

order to facilitate financing for homes and farm operations.13 Accordingly, after discussions with representatives of the Bureau of Indian Affairs in which leaders of 

the Tribe were assured that any claim they had against 

the State would not be jeopardized by legislation terminating federal services, the Tribe adopted a resolution 

supporting such legislation and authorizing a distribution of tribal assets to the members of the Tribe. 14 After 

receiving advice that the Tribe supported legislation 

12 In September 1954, a House Study Subcommittee on 

Indian Affairs reported that the Catawba Tribe was one of the 

groups able to take responsibility for their affairs and therefore 

was ready for termination of federal services. HR Rep No. 2680, 

83d Cong, 2d Sess, 2-3 (1954). In contrast to the report made by 

Senator Thomas in 1930, n 7, supra, the Reports accompanying 

the Act concluded 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. SeeS Rep 

No. 863, 86th Cong, 1st Sess, 3 (1959) ("The Catawba Indians 

have advanced economically ... during the past 14 years, and 

have now reached a position that is comparable to their nonIndian neighbors"); HR Rep No. 910, 86th Cong, 1st Sess, 2 

(1959) (same). 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. S Rep, at 4; HR Rep, at 5. 

13 See 105 Cong Rec 5462 (1959) (statement of Rep. Hemphill); App 102. 

14 The resolution adopted at the meeting of the Tribe on 

January 3, 1959, expressly noted that "nothing in this legislation 

shall affect the status of any claim against the State of South 

Carolina by the Catawba Tribe." Id., at 103. 
416 

77a 

authorizing the disposal of the tribal assets and terminating federal responsibility for the Tribe and its individual 

members, Congress enacted the Catawba Indian Tribe 

Division of Assets Act, 73 Stat 592, 25 USC§§ 931-938 [25 

USCS §§ 931-938]. The Act provides for the preparation of 

a tribal membership roll,§ 931; the tribal council's designation of sites for church, park, playground, and cemetery purposes, § 933(b ); and the division of remaining 

assets among the enrolled members of the Tribe,§ 933(f). 

The Act also provides for the revocation of the Tribe's 

Constitution and the termination of federal services for 

the Tribe, § 935. It explicitly states that state laws shaH 

apply to members of the Tribe in the same manner that 

they apply to non-Indians. Ibid. Pursuant to that Act, the 

3,434-acre reservation that had been acquired as a result 

of the 1943 Memorandum of Understanding was distributed to the members of the Tribe; the Secretary of the 

Interior revoked the Tribe's Constitution, effective July 1, 

1962. 

In 1980, the Tribe commenced this action seeking 

possession of the 225-square-mile tract and trespass damages for the period of its dispossession. All of the District 

Judges for the District of South Carolina recused themselves, and Judge Willson of the Western District of Pennsylvania was designated to try the case. After the 

development of a substantial record of uncontested facts, 

Judge Willson granted the petitioners' motion for summary judgment. His order of dismissal was initially 

reversed by a panel of the Court of Appeals for the 

Fourth Circuit, 718 F2d 1291 (1983); sitting en bane, the 

full Court of Appeals adopted the panel's opinion. 740 

F2d 305 (1984). Because of the importance of the case, we 
417 

78a 

requested the views of the Solicitor General of the United 

States and granted certiorari, 471 US 1134, 86 L Ed 2d 691, 

105 S Ct 2672 (1985). We now reverse. 

II. 

Section 5 of the Catawba Act is central to this dispute. As currently codified, it 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." 25 

usc § 935 [25 uses § 935]. 

This provision establishes two principles in unmistakably clear language. First, the special federal services 

and statutory protections for Indians are no longer applicable to the Catawba Tribe and its members. Seco:ld, state 

laws apply to the Catawba Tribe and its members in 

precisely the same fashion that they apply to others. 

The Court of Appeals disagreed with this reading of 

the Act. For it concluded that the word "them" in the 

second sentence of § 5 could refer to the individual 
418 

79a 

Indians who are members of the Tribe and not encompass 

the Tribe itself. Relying on the canon that doubtful 

expressions of legislative intent must be resolved in favor 

of the lndians, 15 it thus held that the language in § 5 

about the inapplicability of federal Indian statutes and 

the applicability of state laws did not reach the Tribe 

itself. 

The canon of construction regarding the resolution of 

ambiguities in favor of Indians, however, does not permit 

reliance on ambiguities that do not exist; nor does it 

permit disregard of the clearly expressed intent of Congress.t6 It seems clear to us that the antecedent of the 

words "them" and "their" in the second sentence of§ 5 is 

15 DeCoteau v District County Court, 420 US 425, 444, 43 L 

Ed 2d 300, 95 S Ct 1082 (1975); Antoine v Washington, 520 US 

194, 199-200,43 LEd 2d 129,95 S Ct 944 (1975); Maltz v Arnett, 

412 US 481, 504-505, 37 L Ed 2d 92, 93 S Ct 2245 (1973). 

16 See Oregon Dept. of Fish and Wildlife v Klamath Indian 

Tribes, 473 US 753, 774, 87 L Ed 2d 542, 105 S Ct 3420 (1985) 

("[E)ven though 'legal ambiguities are resolved to the benefit of 

the Indians,' DeCoteau v District County Court, 420 US 425, 447 

[43 LEd 2d 300, 95 S Ct 1082] (1975), courts cannot ignore plain 

language that, viewed in historical context and given a 'fair 

appraisal,' Washington v Washington Commercial Passenger 

Fishing Vessel Assn. 443 US [658, 673 [61 L Ed 2d 823, 99 S Ct 

3055] (1979)], clearly runs counter to a tribe's later claims"); Rice 

v Rehner, 463 US 713, 732, 77 LEd 2d 961, 103 S Ct 3291 (1983) 

(canon of construction regarding certain Indian claims should 

not be applied "when application would be tantamount to a 

formalistic disregard of congressional intent"); Andrus v Glover 

Construction Co. 446 US 608, 618-619, 64 LEd 2d 548, 100 S Ct 

1905 (1980); DeCoteau v District County Court, 420 US, at 447, 

43 L Ed 2d 129, 95 S Ct 944 ("A canon of construction is not a 

license to disregard clear expressions of tribal and congressional 

intent"). 
419 

BOa 

the compound subject of the first clause in the sentence, 

namely, "the tribe and its members." To read the provision otherwise is to give it a contorted construction that 

abruptly divorces the first clause from the second and the 

third, and that conflicts with the central purpose and 

philosophy of the Termination Act. According the statutory language its ordinary meaning, moreover, is reinforced by the fact that the first sentence in the section 

provides for a revocation of the Tribe's Constitution. It 

would be most incongruous to preserve special protections for a tribe whose constitution has been revoked 

while withdrawing protection for individual members of 

that tribe.17 

Without special federal protection for the Tribe, the 

state statute of limitations should apply to its claim in 

this case. For it is well established that federal claims are 

subject to state statutes of limitations unless there is a 

federal statute of limitations or a conflict with federal 

policy. 18 Although federal policy may preclude the ordinary applicability of a state statute of limitations for this 

17 Respondent argues that the scope of the Act was merely 

to terminate the specific federal services arising from the 1943 

Memorandum of Understanding. Such a limited interpretation 

cannot be reconciled with the broader language of the Act ("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"; "the laws of the several states shall apply to 

them in the same manner they apply to other persons or citizens 

within their jurisdiction") (emphasis added). 

18 See, e. g., Wilson v Garcia, 471 US 261, 266-267, 85 LEd 

2d 254, 105 S Ct 1938 (1985); Board of Regents v Tomanio, 446 US 

478, 483-484, 64 L Ed 2d 440, 100 S Ct 1790 (1980); Johnson v 
420 

81a 

type of action in the absence of a specific congressional 

enactment to the contrary, County of Oneida v. Oneida 

Indian Nation, 470 US 226, 84 L Ed 2d 169, 105 S Ct 1245 

(1985), the Catawba Act clearly suffices to reestablish the 

usual principle regarding the applicability of the state 

statute of limitations. In striking contrast to the situation 

in County of Oneida, the Catawba Act represents an 

explicit redefinition of the relationship between the Federal Government and the Catawbas; an intentional termination of the special federal protection for the Tribe and 

its members; and a plain statement that state law applies 

to the Catawbas as to all "other persons or citizens." 

That the state statute of limitations applies as a consequence of terminating special federal protections is also 

supported by the significance we have accorded congressional action redefining the federal relationship with particular Indians. We have long recognized that, when 

Congress removes restraints on alienation by Indians, 

state laws are fully applicable to subsequent claims. 19 

Railway Express Agency, Inc. 421 US 454,462, 44 LEd 2d 295, 95 

S Ct 1716 (1975); Auto Workers v Hoosier Cardinal Corp. 383 US 

696, 703-704, 16 L Ed 2d 192, 86 S Ct 1107 (1966); Cope v 

Anderson, 331 US 461, 463, 91 L Ed 1602, 67 S Ct 1340 (1947); 

Rawlings v Ray, 312 US 96, 97, 85 LEd 605, 61 S Ct 473 (1941); 

O'Sullivan v Felix, 233 US 318, 322-323, 58 LEd 980, 34 S Ct 596 

(1914); Chattanooga Foundry & Pipe Works v Atlanta, 203 US 

390, 397-398, 51 LEd 241, 27 S Ct 65 (1906); McClaine v Rankin, 

197 US 154, 158, 49 LEd 702, 25 S Ct 410 (1905); Campbell v 

Haverhill, 155 US 610, 617, 39 L Ed 280, 15 S Ct 217 (1895); 

M'Cluny v Silliman, 3 Pet US 270, 277, 7 LEd 676 (1830). 

19 See, e.g., Larkin v Paugh, 276 US 431, 439, 72 LEd 640, 48 

S Ct 366 (1928) ("With the issue of the patent, the title not only 

passed from the United States but the prior trust and the inci-
421 

82a 

Similarly, we have emphasized that Termination Acts 

subject members of the terminated tribe to "the full 

sweep of states laws and state taxation." 20 These 

dental restrictions against alienation were terminated. This put 

an end to the authority theretofore possessed by the Secretary of 

the Interior by reason of the trust and restriction - so that 

thereafter all questions pertaining to the title were subject to 

examination and determination by the courts, appropriately 

those in Nebraska, the land being there"); Dickson v Luck Land 

Co. 242 US 371,375,61 LEd 371,37 S Ct 167 (1917) ("With those 

restrictions [of congress] entirely removed and the fee simple 

issued it would seem that the situation was one in which all 

questions pertaining to the disposal of the lands naturally 

would fall within the scope and operation of the laws of the 

State"); United States v Waller, 243 US 452,461-462, 61 LEd 843, 

37 S Ct 430 (1917) ("We cannot escape the conviction that the 

plain language of this act evidences the intent and purpose of 

Congress to make such lands allotted to mixed-blood Indians 

subject to alienation with all the incidents and rights which 

inhere in full ownership in persons of full capacity"); 

Shrimpscher v Stockton, 183 US 290, 296, 46 LEd 203, 22 S Ct 107 

(1902) (after a treaty removed restraints from alienation of land 

by certain Wyandotte Indians, state statute of limitations ran 

against Indians, even though Indians later asserted claim of a 

prior federal treaty violation; after removal of restraints on 

alienation, the Indian's heirs "were chargeable with the same 

diligence in beginning an action for their recovery as other 

persons having title to lands"). 

2o Bryan v Itasca County, 426 US 373,389,48 LEd 2d 710, 96 

S Ct 2102 (1976). See also United States v Antelope, 430 US 641, 

647, n 7, 51 L Ed 2d 701, 97 S Ct 1395 (1977) ("[M]embers of 

tribes whose official status has been terminated by congressional enactment are no longer subject, by virtue of their status, 

to federal criminal jurisdiction under the Major Crimes Act"); 

Affiliated Ute Citizens v United States, 406 US 128, 31 L Ed 2d 

741, 92 S Ct 1456 (1972) (terminated members of Tribe must 

bring action to invalidate allegedly fraudulent conveyance 

under same laws as other citizens). 
422 

83a 

principles reflect an understanding that congressional 

action to remove restraints on alienation and other federal protections represents a fundamental change in federal policy with respect to the Indians who are the subject 

of the particular legislation. 

The Court of Appeals found support for its conclusion about the nonapplicability of the state statute of 

limitations in§ 6 of the Catawba Act, which provides that 

nothing in the statute affects the rights of the Tribe under 

the laws of South Carolina. 21 The thrust of the Court of 

Appeals' reasoning was that, if a state law was inapplicable to the Tribe or its members before the effective date of 

the Act, its application after the effective date necessarily 

violates § 6. But such a reading contradicts the plain 

meaning of § S's reference to the applicability of state 

laws. In our view § 6 was merely intended to remove 

federal obstacles to the ordinary application of state law. 

As the Court of Appeals noted, in Menominee Tribe v 

United States, 391 US 404, 20 LEd 2d 697, 88 S Ct 1705 (1968}, 

the Court concluded that the Menominee Termination Act did 

not terminate the Tribe's hunting and fishing rights. The Court 

emphasized that the Termination Act must be read in pari materia with an Act passes in the same Congress that preserved 

hunting and fishing rights. ld., at 411, 20 L Ed 2d 697, 88 S Ct 

1705. In this case, of course, there is no similar contemporaneous statute. Moreover, in Menominee, the Court was concerned 

about a "backhanded" abrogation of treaty rights, id., at 412, 20 

LEd 2d 697, 88 S Ct 1705; no comparable abrogation is at issue 

here. 

21 As currently codified, § 6 provides: 

"Nothing in this subchapter shall affect the rights, privileges, or 

obligations of the tribe and its members under the laws of South 

Carolina." 25 USC § 936 [25 USCS § 936). 
423 

84a 

Section 6 cannot be read to preserve, of its own force, a 

federal tribal immunity from otherwise applicable state 

law without defeating a basic purpose of the Act and 

negating explicit language in § 5.22 Most fundamentally, 

§ 6 simply does not speak to the explicit redefinition of 

the federal relationship with the Catawbas that is the 

basis for the applicability of the state statute of limitations. 

Finally, the Court of Appeals relied heavily on the 

assurance to the Tribe that the status of any claim against 

South Carolina would not be affected by the legislation. 23 

Even assuming that the legislative provisions are sufficiently ambiguous to warrant reliance on the legislative 

history, we believe that the Court of Appeals misconceived the import of this assurance. We do not accept 

petitioners' argument that the Catawba Act immediately 

extinguished any claim that the Tribe had before the 

statute became effective. Rather, we assume that the status of the claim remained exactly the same immediately 

22 It is an "elementary canon of construction that a statute 

should be interpreted so as not to render one part inoperative." 

Colautti v Franklin, 439 US 379, 392, 58 LEd 2d 596, 99 S Ct 675 

(1979). See also Mountain States Tel. & Tel. Co. v Pueblo of Santa 

Ana, 472 US 237, 249, 86 L Ed 2d 475, 105 S Ct 2109 (1985); 

United States v Menasche, 348 US 528, 538-539, 99 LEd 615, 75 S 

Ct 513 (1955) ("It is our duty 'to give effect, if possible, to every 

clause and word of a statute,' Montclair v Ramsdell, 107 US 147, 

152 [27 LEd 431, 2 S Ct 391], rather than to emasculate an entire 

section"). 

23 See 718 F2d 1291, 1296 (1983) (quoting Bureau of Indian 

Affairs official's assurance that" 'any claim the Catawbas had 

against the State would not be jeopardized by carrying out a 

program with the Federal Government' "). 
424 

85a 

before and immediately after the effective date of the Act, 

but that the Tribe thereafter had an obligation to proceed 

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

person or citizen within the State's jurisdiction. As a 

result, unlike the Court of Appeals, we perceive no contradiction between the applicability of the state statute of 

limitations and the assurance that the status of any state 

claims would not be affected by the Act. 

We thus conclude that the explicit redefinition of the 

federal relationship reflected in the clear language of the 

Catawba Act requires the application of the state statute 

of limitations to the Tribe's claim. 

III 

The District Court held that respondent's claim is 

barred by the South Carolina statute of limitations. The 

Court of Appeals' construction of the 1959 federal statute 

made it unnecessary for that court to review the District 

Court's interpretation of state law. Because the Court of 

Appeals is in a better position to evaluate such an issue of 

state law than we are,24 we remand the case to that court 

for consideration of this issue. 

It is so ordered. 

24 See Pembaur v Cincinnati, 475 US 469, 484-485, n 13, 89 L 

Ed 2d 452, 106 S Ct 1292 (1986); Regents of University of Michigan v Ewing, 474 US 214, 224, n 10, 88 LEd 2d 523, 106 S Ct 507 

(1985); Bishop v Wood, 426 US 341, 345-347,48 LEd 2d 684, 96 S 

Ct 2074 (1976); Propper v Clark, 337 US 472, 486-487, 93 L Ed 

1480, 69 S Ct 1333 (1949). 
425 

86a 

SEPARATE OPINION 

Justice Blackmun, with whom Justice Marshall and 

Justice O'Connor join, dissenting. 

The Catawba Indian Tribe Division of Assets Act, 73 

Stat 592, 25 USC § 931 et seq. [25 USCS §§ 931 et seq.), 

was passed by Congress in 1959 to divide up the Tribe's 

federally supervised reservation so that individual 

Catawbas could sell or mortgage their allotments. The 

Court today concludes that the Act also had the incidental effect of applying a South Carolina statute of limitations to the Catawbas' pre-existing and longstanding 

claim to lands the State purported to purchase from the 

Tribe in 1840. I feel this interpretation cannot be reconciled with the language of the Act under this Court's 

traditional approach to statutes regulating Indian affairs. 

I therefore dissent. 

Too often we neglect the past. Even more than other 

domains of law, "the intricacies and peculiarities of 

Indian law deman[d) an appreciation of history." Frankfurter, Foreward to A Jurisprudential Symposium in 

Memory of Felix S. Cohen, 9 Rutgers L Rev 355, 356 

(1954). 

Before the arrival of white settlers, the Catawba 

Indians occupied much of what is now North and South 

Carolina. In the 1760 Treaty of Pine Tree Hill, the Catawbas relinquished the bulk of their aboriginal territory to 

Great Br.itain in exchange for assurances that they would 

be allowed to live in peace on a small portion of that 
426 

87a 

territory, a square of land 15 miles on each side (144,000 

acres), which today surrounds and includes Rock Hill, 

S. C. Three years later, in the Treaty of Augusta, the Tribe 

again agreed to "remain satisfied with the Tract of Land 

of Fifteen Miles square," and the British once more promised that "the Catawba shall not in any respect be 

molested by any of the King's subjects within the said 

Lines." App 35. It is the 144,000 acres reserved for the 

Catawbas in 1760 and again in 1763 - "a mere token of 

the[ir] once large domain" - that give rise to this litigation. See]. Brown, The Catawba Indians 8 (1966) (Brown). 

The historical record suggests that the Catawbas 

were driven to the agreements of 1760 and 1763 in large 

part by the colonists' repeated and continuing encroachments on tribal lands.1 Some of the land was acquired by 

purchase, see, e.g., id., at 165, but in South Carolina, as 

elsewhere, "[f]rom the very beginning abuses marred the 

transfer of land titles from the Indians to individuals 

among the English colonists." F. Prucha, American Indian 

1 In letters written in 1754 to the Catawbas and to the 

President of the Council of North Carolina, Governor Glen of 

South Carolina noted that the Catawbas repeatedly had complained about whites' settling too close to them. 6 Record, Exs 1 

and 2. In response to these complaints, Governor Glen forbade 

whites to settle within 30 miles of Catawba towns, ibid., but that 

prohibition was frequently ignored. See C. Hudson, The Catawba Nation 49 (1970). For general discussions of early colonial 

encroachments on Catawba land, see Brown, at 163-166; P. Dammann, D. Miller, & D. Israel, A History of the Catawba Tribe and 

its Reservation Lands, reprinted in Settlement of the Catawba 

Indian Land Claims, Hearing before the House Committee on 

Interior and Insular Affairs on HR 3274, 96th Cong, 1st Sess, 135, 

151-153 (1979) (Hearing). 
427 

88a 

Policy in the Formative Years 6 (1962). Indeed, the South 

Carolina Provincial Council took legislative notice in a 

1739 statute that lands purchased from Indians were 

"generally obtained ... by unfair representations, fraud 

and circumvention, or by making them gifts or presents 

of little value, by which practices, great resentments and 

animosities have been created amongst the Indians 

toward the inhabitants of this Province." An Act to 

restrain and prevent the purchasing Lands from Indians, 

1 The First Laws of the State of South Carolina 160-161 (J. 

Cushing ed 1981). The 1739 statute therefore barred the 

private acquisition of Indian lands without a grant or 

license from the Crown or the Governor, but such steps 

apparently did little to stop white encroachments on 

Indian territory. See Clinton & Hotopp, Judicial Enforcement of the Federal Restraints on Alienation of Indian 

Land: The Origins of the Eastern Land Claims, 31 U 

Maine L Rev 17, 21 (1979). Recognizing that "great frauds 

and abuses have been committed in the purchasing lands 

of the Indians," the Crown in October 1763 - shortly 

before the signing of the Treaty of Augusta - flatly forbade any further private purchases of land reserved for 

Indian tribes. Proclamation of 1763, reprinted in 3 W. 

Washburn, The American Indian and the United States 

2135, 2138 (1973). 

The United States from an early date followed a 

similar policy. Since 1790, the Nonintercourse Act, now 

codified <tS reenacted and amended at 25 USC § 177 [25 

USCS § 177], has broadly prohibited the sale of Indian 

land without the consent of the Federal Government. 

Despite this prohibition - which in 1793 was extended to 

include not only outright purchases but also acquisitions 
428 

89a 

of any "claim" to protected lands, see Act of Mar. 1, 1793, 

§ 8, 1 Stat 330 - mounting pressures from settlers in the 

early 19th century led the State of South Carolina to enact 

a series of statutes purporting to authorize the leasing of 

Catawba lands to non-Indians. Initially, the leases signed 

under these statutes seem to have posed little threat to 

the Tribe. According to B. S. Massey, who knew the 

Catawbas during this time and later served as South 

Carolina's agent to the Tribe, "[t]hey were then strong 

and felt themselves in their own greatness, governed by 

their own laws, working the best spots of their lands and 

leasing out the poorer portions to the white men." Report 

to The Governor of South Carolina on the Catawba 

Indians 4 (1854), reprinted in 6 Record, Ex 11. 

By the 1830's, however, nearly all of the 144,000 acres 

reserved for the Tribe in the Treaty of Augusta had been 

leased to non-Indians. This situation proved disastrous, 

because rents were "generally paid in old horses, old 

cows or bed quilts and clothes, at prices that the whites 

set on the articles taken." Ibid . The Catawbas soon were 

reduced to "a state of starvation and distress,'" ibid ., and 

they ultimately gave in to repeated efforts by the State to 

purchase their land. In 1840, representatives of the Tribe 

and the State signed the Treaty of Nation Ford. Under 

this "treaty" - which the United States never joined or 

approved - the Cat.awbas relinquished all their land in 

exchange for two promises. First, the State promised the 

sum of $16,000 in a series of resettlement payments. 

Second, the State pledged that it would purchase a new 

reservation "of the value of five thousand dollars," 
429 

90a 

including 300 acres of "good arable lands fit for cultivation" in a thinly populated area of North or South Carolina satisfactory to the Indians. App 38-39.2 

The South Carolina Legislature promptly provided 

for the transfer of title from the State to the lessees of the 

144,000 acres, requiring only that the lessees reimburse 

the State proportionately for its advances to the Tribe. Act 

of Dec. 18, 1840, § 3, 7 SC Stats 103 (1840). Unfortunately, 

the State showed less enthusiasm in fulfilling its contractual obligations to the Indians. After allowing the Catawbas to wander homeless and uncompensated for 21/2 

years, the State reportedly spent $2,000 to buy back 630 

agriculturally undesirable acres of the Catawbas' original 

18th century treaty lands as a "new" reservation for the 

Tribe.

3 The State continues to hold these 630 acres for the 

2 According to Massey, the Indians "were driven to" this 

agreement "by being surrounded by white men, [who] cheat[ed] 

them out of their rights, and [by] partaking of the vices of the 

whites and but few of their virtues." Report to The Governor of 

South Carolina on the Catawba Indians 5 (1854), reprinted in 6 

Record, Ex 11. The "vices" to which Massey referred may have 

included the consumption of alcohol; the Catawbas later 

charged that state representatives negotiated the treaty by setting out a whiskey barrel and tin cups and inviting the Indians 

to help themselves. This charge was reported to the Department 

of the Interior in a 1908 memorandum by Catawba tribal attorney Chester Howe. See Plaintiffs' Response to Defendants' 

Motion to Dismiss in No. 80-2050-6 (CA4) p 23, n 30, citing 

Record Group 75, National Archives Central Files 1907-1939, 

BIA File No. 1753-1906. 

3 See Brown, at 317, 320-322. Assuming this account is 

correct, the new reservation was less than one-half of one percent of the Tribe's 1763 treaty lands. The price paid by the State 

for the new reservation - which works out to roughly $3.17 
430 

91a 

Catawbas. It is unclear from the record before us whether 

the Tribe ever received the resettlement payments promised by the State. 

In the 146 years that have passed since the Nation 

Ford agreement, the Catawbas repeatedly have pressed 

their claim to the 144,000 acres, which they feel were 

taken from them illegally. In the early 1900's, the Tribe 

petitioned both the Federal Government and the State of 

South Carolina for relief, arguing that the 1840 transfer 

was void because the United States had not approved it. 

The Commissioner of Indian Affairs advised the Catawbas in 1906 and again in 1909 that the Department of the 

Interior would not seek relief on their behalf. He 

explained that the Catawbas were "state Indians" for 

whom the United States had no responsibility, and, consequently, that the absence of federal participation in the 

Treaty of Nation Ford did not void the transaction. 4 In 

1908, the South Carolina Attorney General reached the 

same conclusion, and advised the state legislature that 

per acre- contrasts strikingly with the price paid for the same 

land when purchased from the Indians 21/2 years earlier - the 

approximate equivalent of 15 cents per acre payable in installments over 10 years. 

4 6 Record, Exs 18, 20. But see United States v Candelaria, 

271 US 432,442,70 LEd 1023,46 S Ct 561 (1926) (construing the 

term "Indian Tribe" in the Nonintercourse Act to refer to any 

" 'body of Indians of the same or a similar race, united in a 

community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory,' "quoting Montoya v United States, 180 US 261, 266, 45 LEd 521, 21 S 

Ct 358 (19(11); Joint Tribal Council of Passamaquoddy Tribe v 

Morton, 528 F2d 370, 376-378 (CAl 1975) (applying Nonintercourse Act to Tribe lacking federal recognition.) 
431 

92a 

the Tribe had no outstanding claim to any of the 144,000 

acres. 1908 Op SC Atty Gen 17, 18, 29-32. The Tribe 

nonetheless continued to press its claim to the land. A 

federal Indian agent visiting the Catawbas in December 

1910, for example, was asked about the Tribe's prospects 

for recovering "their old reservation of 15 miles square"; 

he told them the Department of the Interior would not 

take their case into court. 6 Record, Ex 21, pp 11-12 (letter 

from C. Davis to Comm'r of Indian Affairs, Jan. 5, 1911). 

The seeds of the legislation found dispositive by the 

Court today were planted in 1943, when the Tribe, the 

State of South Carolina, and the Department of the Interior concluded a Memorandum of Understanding providing for a new reservation for the Catawbas, and pla~ing 

the Tribe and the new reservation under federal supervision. Evidently concerned about the Tribe's continued 

grievances concerning the 1840 agreement, South Carolina sought, unsuccessfully, to include in the Memorandum a waiver of any outstanding claims the Catawbas 

had against the State. Id., Ex 48 (letter from Ass't Comm'r 

of Indian Affairs to SC State Auditor, Aug. 28, 1941 ). 

Preliminary drafts of the Memorandum included such a 

waiver, see id., Ex 49, p 5, but federal officials ultimately 

dropped the provision because they doubted the legality 

of using the agreement to deprive the Indians of claims 

that otherwise might be enforceable in court, see App 

43-44 (memorandum from Interior Dept. Solicitor to 

Comm'r of Indian Affairs, Jan. 13, 1942). 

In 1958, after representatives from the Bureau of 

Indian Affairs suggested to the Catawbas that their financial difficulties could be alleviated by distributing the 

Tribe's federally supervised assets and ending federal 
432 

93a 

restrictions on alienation, the Indians expressed concern 

about their claims against the State, but they were 

assured that the proposal would not jeopardize those 

claims. 6 Record, Ex 53, pp 7-8 (memorandum from program officer to Tribal Programs Branch Chief, Jan. 30, 

1959) (quoted by the Court, ante, at 510, n 23, 90 LEd 2d, 

at 501). The Tribe then adopted a resolution calling on its 

Congressman, Robert Hemphill, to introduce and secure 

passage of legislation to remove restraints on alienation 

and to distribute tribal assets; the resolution specifically 

requested, however, that "nothing in this legislation shall 

affect the status of any claim against the State of South 

Carolina by the Catawba Tribe." App 103. 

Representative Hemphill asked the Bureau of Indian 

Affairs to draft legislation "to accomplish the desires set 

forth in the Resolution." ld., at 50. He then presented the 

draft bill to the Catawbas and told them that it had been 

"drawn up to carry out the intent of the resolution." I d., 

at 111. After a majority of the Tribe expressed approval, 

Representative Hemphill introduced the bill in Congress, 

explaining that the Tribe had given its consent. See 105 

Cong Rec 5462 (1959). The result was the 1959 Division of 

Assets Act, which the Court today concludes may bar the 

Tribe from pursuing its claim to the lands reserved for it 

in 1760 and 1763. 

In the 1970's, spurred by favorable legal rulings elsewhere in the country, Catawba leaders renewed their 

request to the Department of the Interior to seek relief for 

the Tribe. In 1977, the Solicitor of the Department concluded that the rebuffs given the Catawbas in 1906 and 

1909 had been legally unjustified, and that the Tribe could 

establish a prima facie claim to the 144,000 acres. He 
433 

94a 

further concluded that the Division of Assets Act operated prospectively only, and did not affect pre-existing 

rights. Accordingly, the Solicitor formally requested the 

Department of Justice to institute legal action on behalf of 

the Catawbas and to support the settlement discussion 

that the Tribe already had initiated with South Carolina 

officials. See App to Brief in Opposition 3a. The litigation 

request was later withdrawn in an effort to emphasize 

that the Interior Department favored a negotiated settlement if at all possible, and settlement legislation backed 

by the Tribe was introduced in Congress. See Hearing, at 

15-17 (Hearing) (statement of Leo M. Krulitz, Solicitor of 

the Department of the Interior). The legislative efforts 

apparently proved fruitless, and in October 1980 the Tribe 

filed this suit. 

II 

The Tribe's complaint asserts a right to possession of 

the reserved portion of its aboriginal territory under the 

Nonintercourse Act, the Federal Constitution, and the 

treaties of 1760 and 1763.5 These are federal claims, see 

Oneida Indian Nation v County of Oneida, 414 US 661, 

s Although the complaint asks in part that the Tribe "be 

restored to immediate possession" of virtually the entire 144,000 

acres, App 25, the available remedies, even if the Tribe prevailed, well might be limited by equitable considerations. See 

Yankton Sioux Tribe v United States, 272 US 351, 357, 71 L Ed 

294, 47 S Ct 142 (1926). The question currently before the Court, 

of course, is not whether part or all of the land claimed by the 

Catawbas should be given back to them, but whether the Tribe's 

ability to seek any judicial relief at all is governed by South 

Carolina's statute of limitations. 
434 

95a 

666-678, 39 LEd 2d 73, 94 S Ct 772 (1974) (Oneida 1), and 

the statute of limitations is thus a matter of federal law, 

see County of Oneida v Oneida Indian Nation, 470 US 

226, 240-244, 84 LEd 2d 169, 105 S Ct 1245 (1985) (Oneida 

II). Where, as here, Congress has not specified a statute of 

limitations, federal courts generally borrow the most 

closely analogous limitations period under state law, but 

only if application of the state limitations period would 

not frustrate federal policy. See, e.g., Wilson v Garcia, 471 

US 261, 266-267, 85 L Ed 2d 254, 105 S Ct 1938 (1985); 

DelCostello v Teamsters, 462 US 151, 158-163, 76 L Ed 2d 

476, 103 S Ct 2281 (1983); Occidental Life Ins. Co. v EEOC, 

432 US 355, 367, 53 L Ed 2d 402, 97 S Ct 2447 

(1977). 

In Oneida II, the Court recognized that application of 

state statutes of limitations to Indian land claims generally would violate federal policy. The Court noted that a 

1950 federal statute giving New York courts jurisdiction 

over most civil disputes involving Indians had been carefully crafted to exempt pre-existing land claims from the 

operation of a New York statute of limitations. See Act of 

Sept. 13, 1950, 64 Stat 845, 25 usc § 233 [25 uses § 233]. 

Furthermore, in a later series of more general enactments 

imposing a federal statute of limitations on certain tort 

and contract actions brought anywhere in the United 

States by Indians or by the United States on behalf of 

Indians, Congress specifically excluded from the limitations period all actions "to establish the title to, or right 

of possession of, real or personal property." 28 USC 

§ 2415(c) [28 USCS § 2415(c)]. 6 The Court in Oneida II 

6 The federal statute of limitations for certain tort and contract actions brought by the United States on behalf of Indian 
. 435 

96a 

concluded that the text and legislative history of these 

statutes evinced a congressional belief that actions 

brought to enforce Indian property rights were not, and 

should not be, subject to filing deadlines other than those 

Tribes was first adopted in 1966; the limitations period was not 

applied to suits brought by Indians themselves until 1982. "In 

1972 and again in 1977, 1980, and 1982, as the statute of limitations was about to expire for pre-1966 claims, Congress 

extended the time within which the United States could bring 

suits on behalf of the Indians." Oneida II, 470 US, at 242, 84 LEd 

2d 169, 105 S Ct 1245. The debates over these amendments to 

§ 2415 indicate that Congress extended the filing deadline in 

part to allow additional time for preparation and negotiation of 

tort claims for trespass damages arising from allegedly illegal 

expropriations of tribal lands - including the 144,000 acres 

claimed by the Catawbas. See, e.g., 123 Cong Rec 22166-22167 

(1977) (Rep. Cohen, discussing Catawba claim and others); id., 

at 22168 (Rep. Walsh); id., at 22170 (Rep. Hanley); 126 Cong Rec 

5748-5749 (1980) (Rep. Holland, discussing Catawba claim); id., 

at 5750 (Rep. Udall). Members of Congress emphasized repeatedly that Indian land claims were difficult to research, that 

Indians historically had lacked adequate legal assistance and 

administrative resources, and that the United States had not 

played its proper role in bringing suits on the Indians' behalf. 

See, e.g., 123 Cong Rec 22170 (1977) (Rep. Collins); id., at 22171 

(Rep. Johnson); 126 Cong Rec 3289 (1980) (Sen. Cranston); id., at 

5745-5746 (Rep. Clausen); id., at 5747 (Rep. Danielson); id., at 

5750 (Rep. Swift). See also 123 Cong Rec 22171 (1977) (Rep. 

Weiss) ("[A]s a result of the numerous injustices suffered by 

American Indians during the last 150 years- many at the hands 

of the American Government - it is incumbent on the United 

States to give these people- our country's first inhabitants - a 

full chanct! to redress their grievances"); 126 Cong Rec 3287 

(1980) (Sen. Melcher) (failure to extend statute of limitations 

could lead to "mass injustices"). Similar considerations presumably motivated Congress' decision to exempt entirely all 

claims for title or possession from the limitations period prescribed in§ 2415. 
436 

97a 

provided by federal statute. Borrowing a state statute of 

limitations in such a case "would be a violation of Congress' will." 470 US, at 244, 84 LEd 2d 169, 105 S Ct 1245. 

In determining whether the 1959 Division of Assets 

Act exempts the Catawbas' claim from this general principle, analysis must begin with the firmly established rule 

- which the Court today implicitly reaffirms, see ante, at 

506, 90 L Ed 2d, at 498-499 - that ambiguities in statutes 

regulating Indian affairs are to be construed in the 

Indians' favor. See, e.g., Oneida II, 470 US, at 247-248, 84 

LEd 2d 169, 105 S Ct 1245; Bryan v Itasca County, 426 US 

373, 392, 48 L Ed 2d 710, 96 S Ct 2102 (1976); Northern 

Cheyenne Tribe v Hollowbreast, 425 US 649, 655, n 7, 48 L 

Ed 2d 274, 96 S Ct 1793 (1976); DeCoteau v District 

County Court, 420 US 425, 444, 43 L Ed 2d 300, 95 S Ct 

1082 (1975); United States v Santa Fe Pacific R. Co. 314 US 

339, 353-354, 86 L Ed 260, 62 S Ct 248 (1941); Alaska 

Pacific Fisheries v United States, 248 US 78, 89, 63 L Ed 

138,39 S Ct 40 (1918); Choate v Trapp, 224 US 665,675,56 

L Ed 941, 32 S Ct 565 (1912); see generally F. Cohen, 

Handbook of Federal Indian Law 221-225 (1982). This 

rule is not simply a method of breaking ties; it reflects an 

altogether proper reluctance by the judiciary to assume 

that Congress has chosen further to disadvantage a people whom our Nation long ago reduced to a state of 

dependency. The rule is particularly appropriate when 

the statute in question was passed primaril y for the benefit of the Indians, as was the 1959 Division of Assets Act. 

Absent "clear and plain" language to the contrary, Santa 

Fe Pacific, 314 US, at 353, 86 LEd 260, 62 S Ct 248, it must 

be assumed that Congress did not intend to belie its 

"avowed solicitude" for the Indians, id ., at 354, 86 L Ed 
437 

98a 

260, 62 S Ct 248, with a "backhanded" abrogation or 

limitation of their rights, Menominee Tribe v United 

States, 391 US 404, 412, 20 L Ed 2d 697, 88 S Ct 1705 

(1968). 

The Court today evidently finds in § 5 of the Division 

of Assets Act "the clearly expressed intent of Congress," 

ante, at 506, 90 L Ed 2d, at 498, that the Catawbas' tribal 

land claim was to be subject to South Carolina's statute of 

limitations. The Court relies largely on two provisions of 

§ 5. The first renders inapplicable to the Catawbas all 

"special services performed by the United States for 

Indians because of their status as Indians," and "all statutes of the United States that affect Indians because of 

their status as Indians." The second provides that state 

laws shall "apply to [the Catawbas] in the same manner 

they apply to other persons or citizens." 25 USC§ 935 [25 

USCS § 935]. Neither of these provisions, in my view, is 

able to bear the weight the Court places upon it. 

A 

The first provisiOn merely renders federal Indian 

"services" and "statutes" inapplicable to the Catawbas. I 

agree with the Court that this provision makes the Nonintercourse Act, along with other Indian statutes, inapplicable both to individual Catawbas and to the Tribe. See 

ante, at 505-509, 90 L Ed 2d, at 498-500. But that simply 

means that after the Division of Assets Act went into 

effect, the Tribe no longer was statutorily barred from 

selling or leasing its land. The services-and-statutes 

clause of the Act does not expressly abrogate or place 

procedural conditions on any pre-existing claims the 
438 

99a 

Catawbas may have had, and the broad federal policy 

against application of state statutes of limitations to 

Indian land claims is neither a "service" nor a "statute." 

The majority nonetheless asserts that this Court has 

"long recognized that, when Congress removes restraints 

on alienation by Indians, state laws are fully applicable to 

subsequent claims." Ante, at 508, 90 L Ed 2d, at 499-500. 

The cases it cites for that proposition all were decided 

well before the emergence during the past 35 years of a 

clear congressional policy against the application of state 

statutes of limitations to Indian land claims. See Oneida 

II, 470 US, at 240-244, 84 LEd 2d 169, 105 S Ct 1245. More 

importantly, all the cases cited by the majority involve 

lands for which patents had been issued to individual 

Indians, not lands alleged to remain tribal property. This 

Court made clear in Oneida I that claims arising under 

such patents are not federal claims at all, because, "[o]nce 

patent issues, the incidents of ownership are, for the most 

part, matters of local property law to be vindicated in 

local courts." 414 US, at 676, 39 LEd 2d 73, 94 S Ct 772. In 

this case, however, as in Oneida I, "the assertion of a 

federal controversy does not rest solely on the claim of a 

right to possession derived from a federal grant of title 

whose scope will be governed by state law. Rather, it rests 

on the substantial claim that federal law now protects, 

and has continuously protected from the time of the 

formation of the United States, possessory right to tribal 

lands, wholly apart from the application of state law 

principles which normally and separately protect a valid 

right of possession." 414 US, at 677, 39 LEd 2d 73, 94 S Ct 

772. Here, as in Oneida I, the complaint thus "asserts a 
439 

100a 

present right to possession under federal law." Id., at 675, 

39 L Ed 2d 73, 94 S Ct 772. 

I do not see how a statute removing restraints on 

alienation can fairly be said to signal unambiguously a 

congressional intent to subject pre-existing tribal land 

claims arising under federal law to state statutes of limitations. But even if I agreed with the majority that the 

removal of restraints on alienation should trigger the 

application of state limitations periods, the 1959 Act lifted 

only statutory restrictions on the alienation of Catawba 

land, and the requirement that the Federal Government 

approve any transfer of the property at issue in this case 

did not, and does not, stem solely from any federal 

statute. The land set aside for the Catawbas in 1760 and 

1763 was within the Tribe's aboriginal territory? and their 

claim to the land thus derives from original title 8 as well 

as from the 18th-century treaties. 9 With respect to original 

7 John Stuart, the King's Superintendent of Indian AUairs, 

who had negotiated the Treaty of Augusta, noted in a 1772 letter 

to the South Carolina Governor that the 144,000 acres reserved 

for the Catawbas in that treaty were, "as well as a very considerable Extent of Country besides[,) possessed by them when the 

Subjects of England first Settled in this part of the World." 6 

Record, Ex 7, p 1. 

s See generally F. Cohen, Handbook of Federal Indian Law 

486-493 (1982); Cohen, Original Indian Title, 32 Minn L Rev 28 

(1947); Note, Indian Title: The Rights of American Natives in 

Lands They Have Occupied Since Time Immemorial, 75 Colum 

L Rev 655 (1975). 

9 This Court long has respected grants of land to Indian 

tribes by prior governments. See, e.g., United States v Title 

Insurance & Trust Co. 265 US 472, 484, 68 LEd 1110, 44 S Ct 621 

(1924), quoting Barker v Harvey, 181 US 481, 491-492, 45 L Ed 
440 

lOla 

title, at least, the Nonintercourse Act merely " 'put in 

statutory form what was or came to be the accepted rulethat the extinguishment of Indian title required the consent of the United States.' " Oneida II, 470 US, at 240, 84 L 

Ed 2d 169, 105 S Ct 1245, quoting Oneida I, 414 US, at 678, 

39 L Ed 2d 73, 94 S Ct 772.to 

There is nothing in the 1959 legislation that indicates 

that Congress intended to exempt the Catawbas from this 

common-law protection of undistributed tribal property 

as well as from its statutory codification. Nor is there 

963, 21 S Ct 690 (1901) ("'There is an essential difference 

between the power of the United States over lands to which it 

has had full title, and of which it has given to an Indian tribe a 

temporary occupancy, and that over lands which were subjected 

by the action of some prior government to a right of permanent 

occupancy, for in the latter case the right, which is one of private 

property, antecedes and is superior to the title of this government, and limits necessarily its powers of disposal' ");Mitchel v 

United States, 9 Pet 711, 9 L Ed 283 (1835). 

to The federal common-law rule against alienation of 

aboriginal title without the consent of the sovereign was recognized as early as 1823 in Chief Justice Marshall's opinion for the 

Court in Johnson v Mcintosh, 8 Wheat 543, 573-574, 5 LEd 681 

(1823), and it is reflected in the Constitution's Indian Commerce 

Clause, Art I, § 8, cl 3, which made "Indian relations .. . the 

exclusive province of federal law," Oneida 11, 470 US, at 234, and 

n 4, 84 LEd 2d 169, 105 S Ct 1245. See Clinton & Hotopp, Judicial 

Enforcement of the Federal Restraints on Alhmation of Indian 

Land: The Origins of the Eastern Land Claims, 31 U Main L Rev 

17, 28-29 (1979). In Oneida II, the Court rejected a suggestion 

that Indian common-law rights to tribal lands were somehow 

swallowed up or pre-empted by the Nonintercourse Act; it 

made clear that the common law still furnishes an independent 

basis for legal relief. See 470 US, at 236-240,84 LEd 2d 169, 105 S 

Ct 1245. 
441 

102a 

anything to indicate that Congress meant to abrogate the 

protection promised to the Tribe under the treaties of 

1760 and 1763, which the Tribe claims provide an independent source of continuing federal protection. Indeed, 

in rejecting an argument that a similar provision of the 

Menominee Termination Act destroyed treaty rights to 

hunt and fish, this Court noted: "The use of the word 

'statutes' is potent evidence that no treaty was in mind." 

Menominee Tribe, 391 US, at 412, 20 L Ed 2d 697, 88 S Ct 

1705 (emphasis in original). In the same way, Congress' 

use in 1959 of the terms "services" and "statutes" suggests, if anything, that the Division of Assets Act was not 

intended to remove other sources of protection. Surely 

the selection of these terms provides no support for the 

view that Congress meant to impose new procedural 

requirements on pre-existing tribal land claims based not 

only on statutory provisions, but also on treaty rights and 

federal common law. 11 

11 The Tribe's complaint requests relief under the treaties of 

1760 and 1763, the Nonintercourse Act, the Indian Commerce 

Clause, Art I,§ 8, cl3, and the constitutional prohibition against 

state treaties, Art I, § 10, cl 1. App 23. Reading the complaint 

liberally "so . . . as to do substantial justice," Fed Rule Civ Proc 

8(f), I would conclude that the constitutional references suffice 

to invoke the rule that original Indian title may not be alienated 

without federal approval. Cf. Brief for United States as Amicus 

Curiae in Connecticut v Mohegan Tribe, 0 T 1980, No. 80-1365 

[452 US 968, 69 LEd 2d 981, 101 S Ct 3124], p 7 (describing the 

rule as "constitutionally based"). A narrower construction of 

the complaint would be especially inappropriate because the 

Tribe adopted the United States' brief in Mohegan Tribe as part 

of its response in the District Court to the defendants' motion to 

dismiss, making clear that the constitutional claims raised in the 

complaint were to be read to embrace the common-law rule. See 
442 

103a 

B 

The second provision of the 1959 Act relied on by the 

Court directs that "the laws of the several States shall 

apply to them in the same manner they apply to other 

persons or citizens within their jurisdiction." I agree with 

the Court that the word "them" must be understood to 

refer not only to individual Catawbas, but also to the 

Tribe. See ante, at 506-507, 90 L Ed 2d, at 498-499. Clearly, 

however, "them" does not refer to claims brought by the 

Catawbas; the term encompasses the plaintiff in this case, 

but not the cause of action. 

This distinction is critical. The "laws of the several 

States" provision of the Division of Assets Act placed the 

Catawbas on the same footing as non-Indians with regard 

to the application of state law. Just as a non-Indian's 

action based on South Carolina law must be brought 

within the time specified by the State, so a state-law 

action brought by a Catawba - or by the Catawba Tribemust meet the same requirement. If a non-Indian in South 

Carolina brings a federal claim, however, the limitations 

period is determined by federal law. The same must hold 

Plaintiff's Memorandum in Support of Motion for Leave to File 

Supplemental Memorandum and Supplemental Memorandum, 

1 Record, Ex 15. 

Because, under my view, the Tribe's treaty claims add nothing material for present purposes to its common-law claim, I 

would not decide at this time whether the 1760 and 1763 treaties 

independently required the United States, as successor to Great 

Britain, to approve any sale or lease of the 144,000 acres. Why 

the majority finds no need to discuss this question, or the issue 

of common-law restraints on alienation, is harder to understand. 
443 

104a 

for the federal claims raised by the Catawbas in this 

litigation. 

Of course, the real question in this case is not 

whether federal law governs the limitations question, but 

whether federal law should borrow South Carolina's 

period of limitations, notwithstanding the general federal 

policy against such borrowing in the context of Indian 

land claims. My point here is that this question is not 

answered by the statutory instruction to apply state law 

to the Catawbas "in the same manner" as it is applied to 

non-Indians. Subjecting a group of Indians to state law to 

the same extent as other citizens is far different from 

subjecting their unique federal claims to a state statute of 

limitations. For non-Indians as well as Indians, the decision whether to apply a state limitations period to a 

federal claim depends on whether such application is 

deemed contrary to federal policy. And nothing in § 5 of 

the Division of Assets Act unambiguously directs that, as 

a matter of federal policy, the Catawbas' unsettled tribal 

claims should be treated any differently for statute-oflimitations purposes from other tribal land claims. 

Indeed, there is no indication that Congress thought 

about such claims at aiJ.t2 

t2 The Senate and House Reports both explained that the 

purpose of the 1959legislation was "to distribute the bulk of the 

[Catawbas'] tribal assets" among the members of the Tribe. S 

Rep No. 863, 86th Cong, 1st Sess, 1 (1959); HR Rep No. 910, 86th 

Cong, 1st Sess, 2 (1959). Each Report contained a list of the 

Tribe's assets; the list made no mention of the Catawbas' claim 

to their 18-century treaty lands. SeeS Rep No. 863, at 3; HR Rep 

No. 910, at 4. 
444 

105a 

c 

The Court does not rely exclusively on the terms of 

the two provisions discussed above; it also emphasizes 

that the Division of Assets Act as a whole represented an 

"explicit redefinition of the relationship between the Federal Government and the Catawbas/' terminating "special federal protection" for the Tribe and its members. 

Ante, at 508, 90 L Ed 2d, at 499; see also ante, at 510, 90 L 

Ed 2d, at 501. 13 But if we take seriously the "eminently 

sound and vital canon" that all ambiguities in statutes 

passed for the benefit of Indians are to be construed in 

the Indians' favor, Northern Cheyenne Tribe, 425 US, at 

655, n 7, 48 L Ed 2d 274, 96 S Ct 1793, then surely the 

effect of such an "explicit redefinition" must be limited to 

its explicit terms. The Court recognized as much in Menominee Tribe, supra, when it refused to read into the 

Menominee Termination Act an abrogation of the Menominees' treaty rights to hunt and fish. Regardless of the 

general thinking behind the termination policy of the 

1950's, we are faced here with a particular statute, and we 

should not " 'strain to implement [an assimilationist] policy Congress has now rejected.' " Bryan v Itasca County, 

426 US, at 389, n 14, 48 L Ed 2d 710, 96 S Ct 2102, quoting 

13 The majority rightly places little weight on the fact that 

§ 5 of the 1959 Act revoked the Tribe's Constitution. The Catawbas had no tribal constitution until1944, when they adopted one 

pursuant to the 1943 Memorandum of Understanding. See, e.g., 

HR Rep No. 910, 86th Cong., 1st Sess, 5 (1959). Revocation of the 

Constitution therefore can hardly be understood as a statement 

that the Tribe should cease existence or lose any pre-existing 

claims. 
445 

106a 

Santa Rosa Band of Indians v Kings County, 532 F2d 655, 

663 (CA9 1975). 

Such straining is particularly inappropriate in this 

case, where the statute in question was passed at the 

Indians' behest, was apparently intended to carry out the 

Indians' wishes, and received the Indians' support based 

on federal assurances that it would not "affect the status" 

of their claim against the State. One, of course, can distinguish formally, as the majority does, see ante, at 510, 90 L 

Ed 2d, at 501, between preserving the "status" of the 

claim and preserving the claim's immunity from the state 

statute of limitations. But the distinction smacks of the 

kind of semantic trap that this Court consistently has 

attempted to avoid when construing governmental agreements with Indians and statutes ostensibly passed for the 

benefit of Indians. In cases involving Indian treaties, for 

example, it has long been the rule not only that doubtful 

expressions must be construed in the Indians' favor, but 

also that the entire treaty must be interpreted as the 

Indians would have understood it. See, e.g., Choctaw 

Nation v Oklahoma, 397 US 620, 631, 25 LEd 2d 615, 90S 

Ct 1328 (1970); Jones v Meehan, 175 US 1, 11, 44 LEd 49, 

20 S Ct 1 (1899); Worcester v Georgia, 6 Pet 515, 582, 8 L 

Ed 483 (1832). 

The Catawbas were assured in unqualified terms that 

the 1959 legislation would not jeopardize their centuryold grievance against the State of South Carolina. The Act 

itself said nothing about the claim, and nothing about 

statutes of limitations. No one told the Indians or the 

voting Members of Congress that the statute might some 

day prevent the Tribe from pursuing its claim in court. 

The Court nevertheless concludes today that the 1959 Act 
446 

107a 

bars the Catawbas' claim if the limitations period under 

South Carolina law expired between the passage of the 

Act and the initiation of this lawsuit in 1980, and that this 

interpretation of the statute comports with the promises 

made to the Catawbas in the 1950's. I cannot agree with 

either conclusion. In my view, this decision breaks faith 

once again with the Tribe, and it does so in a way the 

statute does not require. Nothing in the text or legislative 

history of the Act evinces a congressional desire to mislead the Indians, or an understanding that the Act sometime might be construed as it is by the Court today. 

III 

Apparently, there no longer are any full-blood 

Catawbas, and no one now speaks the Catawba language. 

See Charlotte Observer, Mar. 6, 1977, p lC, reprinted in 

Hearing at 420. Of the 1,200 or so persons currently on 

the tribal roll, only about 5 or 10 percent live on the 630-

acre reservation still held for the Tribe by the State of 

South Carolina.t4 The reservation itself does not differ 

conspicuously from other rural neighborhoods in South 

Carolina. Indeed, "[a]n unobservant tourist may well 

drive through the reservation unawares, and many do." 

C. Hudson, The Catawba Nation 3 (1970). For the most 

part, modem-day Catawbas "think and live like ordinary 

Americans of the Southeast." Ibid. 

14 See, e.g., Hearing, at 20 (statement of Leo M. Krulitz, 

Interior Department Solicitor); id., at 39 (statement of Claude 

Ayres, Member, Catawba Indian Nation Land Claim Committee); Proposed Catawba Indian Reservation Land Use Analysis 4 

(1977), reprinted in Hearing, at 251, 258. 
447 

108a 

When an Indian Tribe has been assimilated and dispersed to this extent - and when, as the majority points 

out, thousands of people now claim interests in the 

Tribe's ancestral homeland, see ante, at 499-500, 90 L Ed 

2d, at 494-495, and n 4- the Tribe's claim to that land may 

seem ethereal, and the manner of the Tribe's dispossession may seem of no more than historical interest. But the 

demands of justice do not cease simply because a 

wronged people grow less distinctive, or because the 

rights of innocent third parties must be taken into 

account in fashioning a remedy. Today's decision seriously handicaps the Catawbas' effort to obtain even partial redress for the illegal expropriation of lands twice 

pledged to them, and it does so by attributing to Congress, in effect, an unarticulated intent to trick the Indians 

a century after the property changed hands. From any 

perspective, there is little to be proud of here. 

Because I do not believe that Congress in 1959 

expressed an unambiguous desire to encumber the 

Catawbas' claim to their 18th-century treaty lands, and 

because I agree with Justice Black that "[g]reat nations, 

like great men, should keep their word," FPC v Tuscarora 

Indian Nation, 362 US 99, 142, 4 L Ed 2d 584, 80S Ct 543 

(1960) (dissenting opinion), I do not join the judgment of 

the Court. 
448 

No. 84-782 

In The 

Supreme Court of the United States 

October Term, 1985 

STATE OF SOUTH CAROLINA, et al., 

Petitioners, 

v. 

CATAWBA INDIAN TRIBE OF SOUTH CAROLINA, 

Respondent. 

On Writ of Certiorari to the United States 

Court of Appeals for the Fourth Circuit 

RESPONDENT'S BRIEF 

Don B. Miller 

Counsel of Record 

NATIVE AMERICAN RIGHTS FuND 

1506 Broadway 

Boulder, CO 80302 

(303) 447-8760 

Jean H. Toal 

BELSER, BAKER, BARWICK, RAVENEL, 

ToAL & BENDER 

1213 lady Street, Suite 303 

P.O. Box 11848 

Columbia, SC 29211 

(803) 799-9091 

Robert M. Jones 

123 Workman Street 

Rock Hill, SC 29730 

(803) 324-2988 

Mike Jolly 

Richard Steele 

113 West Main Street 

Union, SC 29379 

(803) 427-8471 

COCKLE LAW BRIEF PRINTING CO., (SOQ) 835-7427 Ext. s3s 

Exhibit D 

July 2, 1993 

House Hearings - II.R. 2399 
449 

i 

QUESTION PRESENTED 

In 1943, the Secretary of the Interior took 3,434 acres 

into trust for the Catawba Tribe. Sixteen years later, the 

Tribe and the federal government agreed to end the federal trust over this tract, but only on the condition that 

"nothing in this legislation shall affect the status of any 

claim against the State of South Carolina by the Catawba 

Tribe." · Basing its action on tribal consent, Congress 

enacted the 1959 Catawba Division of Assets Act for tho 

purpose of distributing the 3,434 acres. The question presented is: 

\Vhether, in addition to distributing the 3,434 acres, 

Congress also intended to violate the condition upon which 

tribal consent was obtained and sub silentio extinguish or 

limit the Tribe's long-standing claim to its 144,000-acre 

1763 Treaty lands. 
450 

ii 

TABLE OF CONTENTS 

Page 

QUESTION PRESENTED ···········-~·-·-···················-··--·····-··--··- i 

TABLE OF AUTHORITIES ................................................ - ........... v 

STATEMENT OF THE CASE............................................................ 1 

I. NATURE OF THE CASE...................................................... 1 

II. THE PROCEEDINGS BELOW AND THE 

ISSUES FOR REVIEW............................................................ 1 

III. FACTS ............................................................................................................ 2 

A. The 1763 Treaty Of Augusta. .................................... 2 

B. Attempted State Extinguishment-The 

1840 "Treaty" Of Nation Ford. .............................. 4 

C. Events Leading To The 1943 Memorandum Of Understanding. .......................................... 6 

1. Early Tribal Attempts To Regain 

Possession. ........................................................................ 6 

2. Early Efforts To Secure Federal 

"\.ssistance For the Catawbas. ........................ 7 

D. The 1943 Memorandum Of Understanding. 8 

J;J. The 1959 Catawba Division Of Assets 

.. \.ct. . ........................................................................................... -.......... 9 

SUMMARY OF ARGUMENT ............................................................... 15 

ARGUMENT ............................................................................................................ 18 

I. THE 1959 ACT HONORED THE BIA'S 

AGREEMENT WITH THE TRIBE AND 

DID NOT EXTINGUISH OR LIMIT THE 

TRIBE'S 1763 TREATY CLAIM........................................ 18 

A. The 1959 Act Removed Federal Restrictions Only From The 3,434 Acres Acquired In 1943-Congress Took No Action ·with Respect To The 1763 Treaty 

Claim ..................................................................................................... -.. 19 
451 

iii 

TABLE OF CONTENTS-Continued 

B. The Legislative History And Circumstances Surrounding The 1959 Act Demonstrate That Congress Did Not Intend 

To _\ffect In Any Manner The Tribe's 

Page 

Treaty Claim. .................................................................................... 22 

l. Congress Intended The 1959 Act To 

Implement The Division of Assets 

Plan Agreed To By The Tribe, Their 

Congressman, And The BIA: Congress Understood That Plan To Be 

Embodied In The January 3, 1959 

Tribal Resolution. ····························-······················-····· 24 

2. Because Tribr.l Consent \Vas Required By Congressional And ~dm~nistrative Policy, The 1959 Act 

l\1 ust Be Construed Consistently 

1,Vith The Conditions Upon "\Vhich 

Tribal Consent \Yas Obtained. ........................ 26 

C. Federal Protection Of The 1763 Treaty Lands 

"\"Vas Not E"\"tinguished By the 1959 Act. ............ 29 

l. The Ferleral Protection At Issue Here Is 

Unrelated r.J~o The Duties Undertaken By 

The United States In 1943 And Hence 

\Vas Unaffected By The 1959 Act. ............ 29 

2. Even If The 1959 .\ct Removed Statutory 

Rights, It Did Not Remove Federal Protection Under Treaties And The Constitution. ··················································-····-······················-··········· 32 

D. State Law May Not Be Applied rro Determine Rights In Undistributed Tribal Property. ·······················-··································-·············-····-·······-················· 35 

E. The Tribe's Treaty Claim May Not Be Extinguished Or Limited Absent A Plain And 

Unambiguous Statement Of Congressional 

Intent And Ambiguities Must Be Resolved 

In The Tribe's Favor. ·········-···························-···-····-····- 38 
452 

lV 

TABLE OF CONTENTS-Continued 

Page 

'1. The 1959 Act Is Ambiguous : It Does Not 

Clearly Apply State Law To The Tribe; 

Rather, In Light Of The Legislative History And Surrounding Circumstances, It 

Applies State Law Only To Individual 

Tribal Members. -·----··------------.. --·--·--.. ··--·-------------·-·------- 38 

2. The Canons Of Construction Applicable 

To Indian Laws Preclude Indirect Extinguishment Of Treaty Rights And Require That Ambiguities Be Resolved In 

The Tribe's Favor ...... -..................................... _ .. ___ ..... 41 

II. THE 1959 ACT DID NOT EXTINGUISH THE 

TRIBE'S STATUS AS A TRIBE. .................................... 43 

III. EVEN IF STATE LAW WERE TO APPLY, 

THE TRIBE WOULD STILL HAVE SIGNIFICANT CLAIMS . ......................... ------------·-------------·------·---·---------------- 46 

CONCLUSION .......................................................................... _............................. 50 
453 

v 

TABLE OF AUTHORITIES 

Page(s) 

CASES 

Adams v. Adams, 220 S.C. 131, 66 S.E.2d 809 (1951) ...... 47 

Affiliated Ute Citizens of Utah v. United States, 

406 u.s. 128 ( 1972) ·······················-················-····-··········-··········-····-····-···- 36 

Antoine v. Washington, 420 U.S. 194 (1975) .............................. 42 

Board of County Commissioners v. United States, 

308 u.s. 343 (1939) ···············································-··········-··········-·············· 36 

Bryan v. Itasca County, 426 U.S. 373 (1976) ...... 21, 37, 40,42 

Chemeh~tevi Tribe of Indians v. Federal Power 

Commission, 420 U.S. 395 (1975) .................................................... 24 

Co~tnty of Oneida v. Oneida Indian Nation, 105 

S.Ct. 1245 ( 1985 )(Oneida II) ............................ .17, 19, 28, 36, 42 

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

(1956) ........................................................................................................................ 47, 48 

DeCoteatt v. District County Court, 420 U.S. 425 

( 1975) ........................................................................................................................... 22 

Dennison v. Topeka Chambers Indus. Dev. Corp., 

724 F.2d 869 (lOth Cir., 1984) ............................................................ 37 

Dickson v. L1.wk Land Co., 242 U.S. 371 (1917) ..................... 36 

Dillon v. Antler Land Co., 507 F.2d 940 (9th Cir. 

197 4), cert. denied 421 U.S. 992 ( 1975) .................................... 36, 37 

Ewert v. Bluejacket, 259 U.S. 129 (1922) .................................... 36 

Garrett v. Weinberg, 48 S.C. 28, 26 S.E. 3 (1896) ............... 50 

Gregg v. Moore, 226 S.C. 366, 85 S.E.2d 279 (1954) .. ....... 47 

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

(1928) ............................................................................................................... 47, 49, 50 

Johnson v. M'lntosh, 21 U.S. (8 Wheat.) 543 

( 1823) ............................................................................................................... 3, 34, 35 

Joint Tribal Council of the Passamaquoddy Tribe 

v. Morton, 528 F.2d 370 (1st Cir. 1975) .................................... 31 
454 

vi 

TABLE OF AUTHORITIES-Continued 

Page(s) 

Jones v. Meehan, 175 U.S. 1 (1899) ................................................... 37, 41 

Kerr-McGee Corporation v. Navajo Tribe of Indians, 105 S.Ct. 1900 (1985) .................................................................. 45 

Kimball v. Callahan, 590 F.2d 768 (9th Cir.), cert. 

denied 442 U.S. 915 ( 1979) ..................................................................... 44 

Love v. Turner, 7l S.C. 322, 51 S.E. 101 (1904) ..................... 50 

Mattz v. Arnett, 412 U.S. 481 (1973) ............................................ 21, 22 

McClanahan v. Arizona Tax Comm'n, 411 U.S. 164 

(1973) ........................................................................................................................... 45 

Menominee Tribe v. Unit ed States, 391 U.S. 404 

(1968) ................................................................................................................. .Passim 

Menominee Tribe v. United States, 388 F.2d 998 

(Ct. Cl. 1967), aft' d 391 U.S. 404 ( 1968) ................................. 44 

Me scalero Apache Tribe v. Jones, 411 U.S. 145 

( 1973) ····--··--·····················--·-···--··················--··················--·-------- --------------------·--------- 45 

Missouri v. Holland, 252 U.S. 416 (1920) .................................... 34 

Mitchel v. Unit ed States, 35 U.S. (9 Pet.) 711 (1835) ...... 34 

Montoya v. Unit ed States, 180 U.S. 261 (1901) ..................... 45 

Narragansett Tribe v. So. R.I. Land Devel., 418 

F.Supp. 798 (D.R.I. 1976) ........................................................................ 31 

Northern Cheyenne Tribe v. Hollowbreast, 425 

u.s. 649 (1976) ....................................................................... -.......................... 28 

Oneida Indian Nation v. County of Oneida, 414 

U.S. 661 (1974) (Oneida I) ............................................... .19, 34, 35,37 

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977) ......... 22 

Schrimpscher v. Stockton, 183 U.S. 290 (1902) .................. 36, 37 

Solem v. Bartlett, 104 S.Ct. 1161 (1984) --------------------------------- ---- 22 

Talton v. Mayes, 163 U.S. 376 (1896) ---------------------------------------------- 45 

Taylor v. Anderson, 234 U.S. 74 (1914) .......................................... 37 
455 

Vll 

TABLE OF AUTHORITIES-Continued 

Page(s) 

Taylor v. Hearne, 637 F.2d 689 (9th Cir.), cert. 

denied 454 U.S. 851 (1981) ..................................................................... 36 

Udall v. Tallman, 380 U.S. 1 (1965) ................................................ 20, 31 

United States v. American Trucking Ass'n., 310 

u.s. 534 (1940) ................................................................................................... 24 

United States v. Heath, 509 F.2d 16 (9th Cir. 1974) ...... 36 

United States v. Minnesota, 270 U.S. 181 (1926) .................. 36 

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

339 ( 1941) ............................................................................................................... 35, 42 

United States v. Title Ins. & Trust Co., 265 U.S. 

472 (1924) ............................................................................................................... 34 

United States v. Wheeler, 435 U.S. 313 (1978) ........................ 45 

United States v. W inans, 198 U.S. 371 (1905) ........................ 34 

Washington v. Fishing Vessel Assoc., 443 U.S. 658 

( 1979) ........................................................................................................................... 34 

Worcesterv. Georgia,31 U.S. (6Pet.) 515 (1832) ... 3,35,44 

Zuber v. AUen, 396 U.S. 168 (1969) ...................................................... 20 

OoNST'ITUTION, TREATIES AND STATUTES 

U.S. Const., art. I, ~ 8, cl. 3 ···········-·········-·····-··---··-······--··-···-····· 34 

1760 Treaty of Pine Tree Hill .......................................... 3, 4, 33, 34, 35 

1763 Treaty of Augusta ................ ·-····-·--·---·---·-··---·--·····-····-····Passim 

Proclamation of 1763 ............................................... _ ................................ ·-···· 3 

8 u.s.c. § 1401 ·······················-··········-····-····-··········-····-····----··-····-··········-········ ~8 

25 U.S.C. ~ 177 (Indian Nonintercourse Act) ............... 31, 32,42 

25 u:s.c. § 345 ....................... -....................... -·-·--·-···---··-···-····-···-········ 37 

25 U.S.C. ~§ 461-479 (Indian Reorganization Act)............ !45 
456 

viii 

TABLE OF AUTHORITIES-Continued 

Page(s) 

25 U.S.C. § 564 (Klamath Termination Act) 

§ 564d ·················-····-····-····-···-····-··-····-···-····-····-····-···-····-···· 36 

§ 564e ·····-····-····-···-····-···-····-····-···-····-····-····-····-···-···-····-·····- 36 

§ 564m ···········-····-····-····-····-····-····-····-····-····-····-···-····-···-····-··· 29 

§ 564p ········-····-·······-····-·······-····-····-·······-·············-······-····-· .. ········ 36 

§ 564q (a) ·····-····-····-····-····-····-····-····-····-····-····-····-····-····-·····39, 41 

§ 564q (b) ··-····-················-···-····-··········-····-····-···-····-····-····-····· 38 

25 U.S.C. § 677 (Mixed Blood Ute Termination Act)_ .... 36, 39 

§ 677v ·····-····-··········-····-····-····-··········-····-··········-····-···········36, 39, 41 

25 U.S.C. §§ 691-708 (Western Oregon Indian Termination Act) 

§ 703 (a) ·····-····-····-····-····-····-··········-················-····-··········-····-··39, 41 

§ 703 (b) ··-····-················-··········-····-····-····-····-····-····-················· 38 

25 U.S.C. §§ 721-'729 (Alabama-Coushatta Termination Act) 

§ 726 ·····-··········-····-····-····-····-····-····-····-····-····-····-··········-····-····· 39 

§ 727 ···········-····-······················-····-····-····-····-····-····-····-····-····-····· 38 

25 U.S.C. §§ 741-760 (Paiute Indians of Utah Termination Act) 

§ 757 (a) ···········-····-····-····-····-····-····-····-····-····-····-····-····-····39, 41 

§ 757 (b) ·····-····-····-···········-··········-····-····-····-····-····-····-·············· 38 

25 U.S. C.§§ 791-807 (Wyandotte Tribe of Oklahoma 

Termination Act) 

§ 803 (a) ·····-····························-····-····-······················-····-····-·····39, 41 

§ 803(b) ····················-·······-·············-·······-····-····-··-···-····-··········· 38 

25 U.S.C. §§ 821-826 (Peoria Tribe of Oklahoma Termination Act) 

§ 823 (a) ···········-····-····-····-····-··········-··········-····-····-····-···········39, 41 

§ 823 (b) ··························-··········-·······-····-·-·············-····-·······-····· 38 

25 U.S.C. §§ 841-853 (Ottawa Tribe of Oklahoma Termination Act) 

§ 848(a) ···········-···-····-··········-····-····-··········-··········-·················39, 41 

~ 848 (b) ··-····-···-····-·····-···-····-········-··········-···-·········-····-···· 38 
457 

IX 

TABLE OF AUTHORITIES-Continued 

Page(s) 

25 U.S.O. §§ 891-902 (Menominee Termination Act)......... 21 

~ 899 ··-········---···········-··································-···········21, 28, 38, 39, 41 

25 U.S.O. ~§ 931-938 (1959 Catawba Division of 

Assets Act) ·····-··········-····-····-··········-················-····-····.Passim 

25 U.S.O. ~§ 971-980 (1962 Ponca Termination Act) 

§ 980 ·······················-··································-······················-········26, 39,40 

28 TJ.S.O. ~ 2415 .................................................................................................. .17, 28 

71 Stat. 31. \ct of May 17, 1957 ···········-····-······················-····-····-····--· 11 

72 Stat. 619, Act of August 18, 1958 (California 

Raneheria Distribution of .Assets Act ) ........................ 26, 39, 40 

VT Stat. 602, Act of Dec. 1 9. 1838, S.C. Code of Laws, 

~ 27-15-30 ( 1976) ... ... ···-··· .... ··············-················-····-··········-····-····--······ 19 

S.C. Code Ann. § 15-3-340 r 1976) ········-····-···················-·····-·46, 48, 50 

. Code Am1. § 15-67-210 (1976) ······································--··-··..48, 49 

14 Stats. of S.C. 444 (1870) ···········-····-····-··········-····-··········-··--··-····· 48 

LEtnSLATIVE MATERIAI.S 

Journals of Congress, Saturday, Nov. 2, 1782 ··--··-··- 5 

Division of Tribal Assets of Catawba Indian Tribe, 

Hearing-s on H.R. 6128, Before the Subcommittee 

on Indian Affairs of the House Committee on Interior and Insular Affairs, 86th Oong., 1st Sess. 

(1959) (unpublished) ·····-····-····-····-··········-··········-···-···---··..Passim 

Hearings on S. 27.55 and S. 3654, Before Senate Committee on Indian Affairs, 73d Oong., 2d Sess. 

( 1934) ········-···················-···························-·······-····-·········-·--·-···---·--------·--- 7 

H.R. Rep. No. 910, 86th Oong., 1st Sess.; reprinted 

in 1959 U.S. Code Oong. & Ad. News 267L .................... .Passim 

S. Rep. No. 481, 96th Oong., 1st Sess ........................ _....................... 44 

S. Rep. No. 1874, 85th Oong., 2d Sess. (1958) ·-·-----·-·---- 39 
458 

X 

TABLE OF CONTENTS-Continued 

Page(s) 

Survey of Condition of the Indians in the United 

States, S. Doc. No. 92, 71st Cong., 2d Sess. (1930) ...... 7, 27 

90 Cong. Rec. A209l (May 2, 1944) (Remarks of Rep. 

James P. Richards) ···········-··········-····-····-····-····-····-··········-····-····-···-· 8 

105 Cong. Rec. 3105 (1959) (Broadcast address over 

Radio Station KCLS, Flagstaff, Ariz.) ................................. Q6 

105 Cong. Rec. 5462 (April 7, 1959) ···········-···································24, 27 

ADMINISTRATIVE MATERIALS 

Powers of Indian Tribes, Mem. Sol. Int., 55 J.D. 14 

(Oct. 25, 1934) ···········-··········-····-····-················-····-··········-··········-··········-····· 45 

Questions Of the Catawbas' Identity and Organization As A Tribe And Right To Adopt An IRA 

Constitution, Mem. Sol. Int., April 11, 1944, reprinted in II Opinions of the Solicitor of the 

Department of the Interior Relating to Indian 

Affairs, 1917-1974, 1261 (Gov't. Printing Office, 

n.d.) ................................... -............................................................................................ 46 

Re The Memorandum of Understanding, etc., Mem. 

Sol. Int., Jan. 13, 1942, reprinted in I Opinions of 

the Solicitor of the Department of the Interior 

Relating to Indian Affairs, 1917-1974, 1080 

( Gov't. Printing Office, n.d.) ................................................... 8, 30, 31 

Op. Atty. Gen. S.C., Jan. 27, 1908 ......................................................... 6, 19 

Op. Atty. Gen. 'S.C., No. 3988, March 6, 1975 ........................ 15, 46 

OTHER 

American State Papers, Indian Affairs, Vol. II 

541 (1834), Plan For Removing The Several 

Indian Tribes West Of The Mississippi River 

(Jan. 27, 1825) ...................................................................................................... 5 
459 

Xl 

TABLE OF AUTHORITIES-Continued 

Page(s) 

Clinton and Hotopp, Judicial Enforcement of the 

Federal Restraints on Alienation of Indian Land: 

The Origins of the Eastern Land Claims, 31 Me. 

L. Rev. 17 (1979) ············································-···-··-····-····----····-·-·3, 19 

F. Cohen, Handbook of Federal Indian Law (1942 

ed.) ................................................................................................................. ____________ 45 

F. Cohen, Handbook of Federal Indian Law (1982 

ed. ) ................................................................................... -................ 14, ·26, 35, 44, 45 

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

(Fall 1958) ............................................................................................................ 47 

Note, Effect of Disability of Landowner With Respect to the Acquisition of Adverse Rights by 

Another by Statutes of Limitations, Presumption 

of a Grant, and Prescriptive Right in South Carolina, 10 S.C.L.Q. 292 (Winter 1958) ---------------------------------- 48 

7 R. Powell, The Law of Real Property (1984} __________ ..47, 48 

Comment, Tribal Self-Government and the Indian 

Reorganization Act of 1934, 70 Mich. L. Rev. 955 

{1972) ....................................................................................................................... - 45 
460 

STATEMENT OF THE CASE 

I. NATURE OF THE CASE 

In 1760 and 1763, the British Crown entered into treaties 'vith the Catawba Indian Tribe under which the 'l'ribe 

ceded vast portions of its aboriginal territory in return for 

the Crown's guarantee of protection for a 15-mile-square, 

144,000-aere reservation. In 1840 the State of South Carolina, without the knowledgP, consent, or participation of 

the United States, negotiated a "sale" of the Catawba 

Reservation, promising it would purchase a new reservation elsewhere for the 'l'rihe. South Carolina took possession of the Treaty Heservation but failed to acqnire a 

new reservation for the Tribe. In 1842, after the 'l'ribe 

had wandered homeless for almost three years, the State 

bought back a 630-acre tract of the original Reservation 

as a "Hew" resen·ation for the TrihP. ThP State continues to this day to hold this tract in trust for the Tribe. 

In 1980, aftf~l' more than a century of unsuccessful 

efforts to resolve its claim legislatively and administratively, including 190G and 1909 administrative petitions to 

the Secretary of the Interior, the 'J'ribe filed suit seeking 

the return of its Treaty Hescrvation. 'l'he Tribe seeks a 

declaration that it acquired, in 1763, a protected, recognized property right through its treaties with Great Britain 

and that since the adoption of the United States CoHstitution, 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. 

The question to be determined by the Court is whether 

the Tribe's federal law right to possess its 1763 Treaty 

land was taken away s11b silentio in 1959 when Congress 

acted to distribute among tribal mmnbers 3,434 acres of 

land that the United States and South Carolina had acquired in 1943 for the purpose of rehabilitating the Tribe. 

II. THE PROCEEDINGS BELOW 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 

1 
461 

2 

of the 1959 Catawba Division of Assets Act. 1 73 Stat. 592, 

25 U.S.C. §§ 931-938 ("1959 Act"). The district court then 

granted summary judgment for petitioners by adopting 

verbatim their proposed findings of fact and conclusions 

of law. 

For purposes of summary judgment, petitioners' motion necessarily assumed that, until the effective date of 

the 1959 Act : 

(1) the Catawba Tribe possessed a vested, constitutionally-protected property right in its 144,000-acre 1763 

Treaty Reservation; 

(2) the 1763 Reservation was subject to the same federal 

constitutional, statutory, and common law protection 

as other federal treaty reservations; and 

(3) neither the rrribe's property interest nor its federallyrestricted status was validly disturbed until 1969, i.e., 

the 1840 state treaty was void. 

The only question before the Court is whether the 1959 

Act implicitly extinguished, in abrogation of au exp1·ess 

understanding with the rrribe, the federally-protected status of an additional 140,000 acres of Treaty lands o\·er 

and above the 3,434 acres that it was intended to affect. 

The Court of Appeals held that the 1959 Act did not ha\'e 

this effect, finding· that it dealt only with the distributiou 

of the 3,434 acres administratively acquired l(j years 

earlier. 

Ill. FACTS 

A. The 1763 Treaty Of Augusta. 

In 1760, the Catawba 1'ribe and His Majesty's Superintendent of Indian Affairs entered into the rrreaty of 

Pine Tree Hill, whereby the Cata,vba rrribe ceded its n~­

maining aboriginal territory in return for "being quietly 

settled in a rl'ract of only fifteen Miles square ... " Lt. 

1Petitioners uniformly refer to this 1959 Act as the "Catawba Termination Act." See, e.g., Pet. Br., Table of Contents. This 

is petitioners' own label for the 1959 Act created for this lawsuit. Congress' title for the 1959 Act is the "Catawba Indian 

Tribe Division of Assets Act." 73 Stat. 592; 25 U.S.C. § 931 

(1982). Its stated purpose is to "provide for the division of 

tribal assets of the Catawba Indian Tribe of South Carolina 

among the members of the Tribe ... " /d. Neither the word 

"terminate" nor any of its variants appears in the title or text 

of the Catawba Act. 
462 

3 

Governor Bull to South Carolina General Assembly, October 14, 1760, S.C. Commons House .Journal, No. 33, pt. 2, 

14 (R. Vol. VI, Ex. 3). In 1763, the Crown issued a proclamation forbidding the colonial governors from patenting 

or authorizing surveys of Indian lands and forbidding private land purchases or settlement on Indian lands (R. Vol. 

VI, Ex. 4). The Proclamation of 1763 was the definitive 

statement of British ,Indian policy and continued in force 

until the Ame1·icaH Revolution.2 

Shortly after issuing the 1763 Proclamation, the Crown 

convened a treaty conference at Augusta \\ith the Chickasaw, Choctaw, Cherokee, Creek and Catawba Tribes. Because the terms of the 1760 Treaty of Pine Tree Hill had 

not been honored by the British, the Catawbas renewed 

their claims to a larger area. The goYernors told the Catawbas that "our King and Father holcls ont his arms to 

receive and protect you from all your enemies and ... you 

may he assnrefl of his confirming to you aH your just claims 

to your Lands and Hunting Grounds pursuant to [the 

rrreaty of Pine r_I_'ree Hill]." Colonial Records of North 

Carolina, VoL 2, 198 (1890) (.J.A. BO). The Gon rnors 

urged the Catawbas to stand by their former agreement 

and promised that the Treaty obligations would be fulfilleo. The Catawbas agreed, and Article IV of the 'l'reaty 

of Augusta provides: 

And \Ve the Catawba Head Men and ·warriors in 

Confirmation 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 onr 

request has been already begun and the respective 

Governors and Superintendant on their Parts promise 

and engage that the aforesaid survey shall be compleated and that the Catawbas shall not in any respect 

be molested by any of the King's subjects within the 

said Liues but shall be indulged in the usual Manner 

of hunting Rlsewhere. 

2Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 548-49 (1832); 

Johnson v. M'lntosh, 21 U.S. (8 Wheat.) 543, 594-98 (1823); see 

Clinton and Hotopp, Judicial Enforcement of the Federal Restraints on alienation of Indian land: The Origins of the Eastern land Claims, 31 Me. l. Rev. 17, 22 (1979}. 
463 

4 

Id. at 201-02 (J.A. 35). Following the Treaty, the Reservation was surveyed and a fort built for the Tribe's protection.3 

B. Attempted State Extinguishment-The 1840 ''Treaty'' 

Of Nation Forcl. 

During the Revolutionary ·war, the Catawba Tribe 

fought alongside the Colonists against the British. Follov.-ring Independence, the United States recognized the 

31n 1772, the Crown actively protected the Tribe's possession, opposing a plan by members of the South Carolina General Assembly to lease the Catawba Reservation to one of its 

own members. john Stuart, the King's Superintendent of Indian Affairs, who had negotiated the 1763 Treaty, wrote the 

South Carolina Governor: 

The Land now Occupied by the Catawba Indians being a parcel of Fifteen Miles Square was, as well as a very 

considerable Extent of Country besides possessed by them 

when the Subjects of England first Settled in this part of 

the World; At the Congress held at Augusta in 1763, by 

the Governors of Virginia So. & North Carolina & Georgia 

and the Superintendant of Indian Affairs in the Southern 

District. The said parcel of Land of Fifteen Miles Square, 

being judged by the Remains of the Said Once numerous 

and powerful! Nation . .. to be Sufficient for their Support 

& Maintenance ... and in Consideration of their Having 

Voluntarily relinquished their Claims to a very extensive 

Territory as also of their Having been always faithfully & 

Cordially Attached to the British Interest, was in the most 

Solemn Manner reserved for their use by Treaty to the 

Observation of which the said Governor and Superintendant bound Themselves & their Successors. 

The Catawbas never have by any Treaty or Publick 

Act Ceded the Land so Reserved to them by said Treaty 

of Augusta in 1763 to His Majesty, and Such a Cession 

cannot be Negotiated for or accepted of, for & on Behalf 

of His Majesty, by any other person, than His Agent for 

& Superintendant of Indian Affairs without a Manifest Violation of His Majesty's Orders ... 

Your Excellency & the Honorable Council, cannot in 

my humble Opinion with any Propriety or Shadow of 

Right grant or lease the Whole or any Part of the Catawba 

Lands for any purpose or upon any Pretence whatsoever 

untill they shall have been first Ceded by said Indians to 

the Superintendant for His Majesty, without a Violation 

of every Order and Instruction Relative to Indian Lands. 

Great Britain, Public Records, Colonial Office, Class 5, Vol. 74, 

pp. 85-87 (R. Vol. VI, Ex. 7). 
464 

5 

Catawbas' title to their 1763 Treaty lands,4 but neither 

entered into new treaties or agreements with nor provided 

services to the Tribe for 160 years, until 1943. While the 

Colony, and later the State of South Carolina, initially 

recognized the validity of the 1763 Treaty guarantees (R. 

Vol VI, Ex. 8, 10, pp. 19-22), increasing pressure from 

settlers in the area resulted in the enactmeut of seyeral 

State statutes in the early 1800's-all without federal approval-purporting to authorize leasing of Catawba tribal 

lands to non-Indians (R. Vol. VI, Ex. 10). By the 1830's, 

nearly all of the Catawba Treaty lands had been leased to 

non-Indians in violation of federal law, and the lessees 

began pressuring the State to extinguish the Tribe's title 

(R. Vol. VI, Ex. 10, 11 & 12). In 1838, South Carolina conveyed its pre-emptive rights in the Catawba lands to the 

non-Indian lessees (R. Vol. VI, Ex. 10, pp. 20-22). The 

State's initial efforts to convince the Catawbas to sell were 

rebuffed by the Tribe, but in 1840 the State succeeded in 

"negotiating" the "Treaty" of Nation Ford whereby the 

Tribe purportedly relinquished its 144,000-acre tract in 

return for South Carolina's promise to spend $5,000 to 

acquire new tribal land in North Carolina or some unpopulated area of South Carolina (J.A. 38).5 The South Caro41n 1782, Congress, operating under the Articles of Confederation, recognized the Tribe's claim to occupy its Treaty 

Reservation, and urged South Carolina to take whatever steps 

it deemed necessary "for the satisfaction and security of said 

tribe ... " journals of Congress, Saturday, Nov. 2, 1782. In 

1825, President James Monroe and Secretary of War John Calhoun reported to the Senate that the Catawbas were among 

those "tribes" which still "held" lands "within our States." 

American State Papers, Indian Affairs, Vol. II 541 (1834), Plan 

For Removing The Several Indian Tribes West Of The Mississippi 

River (Jan. 27, 1825). A War Department chart attached to the 

report indicates that the Catawba Tribe comprised 450 persons 

and claimed 144,000 acres in South Carolina. /d. at 545. 

5A 1908 legal memorandum submitted to the Department 

of the Interior states: 

The Indians assert that this treaty was obtained by 

opening a barrel of whiskey, hanging tin cups around the 

barrel, and allowing each Indian to help himself. They are 

prepared to make affidavit to the fact that this is the generally accepted version and statement among all their 

people. 

Record Group 75, National Archives Central files 1907-1939, 

BIA File No. 1_753-1906 (R. Vol. Vat 23, n.30). 
465 

6 

lina legislature ratified the "treaty" and in turn authorized the issuance of patents to the leaseholders who occupied the land (R. Vol. VI, Ex. 10, pp. 23-24). 

The United States was not a party to and did not participate in the 1840 "treaty" (R. Vol. VI, Ex. 10). 

Nor did South Carolina perform its duties under the 

"treaty." The State did not purchase new lands, and the 

Tribe wandered homeless for more than two and one-half 

years. In 1842, the Stat e purchased for $2,000 a 630-acre 

tract located entirely within the boundaries of the 1763 

Treaty lands (R. Vol. VI, Exs. 13, 14). 'rhis "uew" reservation comprised less than one-half of one percent of the 

1763 Treaty lands. The 630-acre tract continues to this 

day to be held in trust for the Tribe by the State as an 

Indian reservation (R. Vol. VI, Ex. 15). 

C. Events Leading To The 1943 Memorandum Of 

Understanding. 

1. Early Tribal Attempts To Regain Possession. 

In the century following the "Treaty" of Nation Ford, 

the Catawba Tribe made numerous appeals to both the 

State and Federal Governments to regain possession of at 

least a portion of its Treaty lands. In 1905 and 1909, the 

Catawba Tribe petitioned the Department of the Interior 

to assist the Tribe to regain possession. The Tribe's petitions were based on the N oninterconrse Act but were rejected because the Catawbas were "state Indians" for 

whom the Department concluded the United States had 

no responsibility (R. Vol. VI, Ex::;. 18, 20). During the 

period 1900-1930, the Catawbas made numerous appeals to 

the State of South Carolina seeking citizenship and "final 

settlement of all their claims against the state" (R. Vol. 

VI, Ex. 25). ..Although a 1908 South Carolina Attorney 

General opinion concluded that the 1840 treaty was valid 

and that its terms had been fulfilled ( R. Vol. VI, Ex. 10), 

the State's Governor and Legislature generally aclmowledged the legitimacy of the tribal claim and a number of 

state investigative committees were appointed, but no 

action was ever taken6 (R. Vol. VI, Exs. 19, 23, 25, 28, 30). 

61n 1910 The Tribe was advised by a federal Indian agent 

that they could not even get into court for a legal hearing on 

their claim and that they should be content with a reasonable 

grant from the State legislature (R. Vol. VI, Ex. 21, pp. 11-12, 

16, 21). 
466 

7 

2. Early Efforts To Secure Federal Assistance 

For The Catawbas. 

Following 1930 field hearings in Rock Hill, South 

Carolina, by a subcommittee of the Senate Committee on 

Indian Affairs,7 at which Catawba Chief Blue testified that 

the State had taken the Tribe's 144,000-acre 'l'l'<-'aty ReserYation and left the 1'ribe poverty stricken, attention again 

focused on securing federal assistance for the Tribe.8 Senator Thomas of Oklahoma, a member of the Senate Subconunittee that visited the ReserYatlon iu 1930, wrote in 

1932 that the "subconuuittee ... found some lnmdred and 

st ven ty-five remnants of tlt is hand located on a tract of 

practically barren rock and gradually starving to death." 

Dit·ision of Tribal Assets of Catau·ba Indian Tribe, Hearings on H.R. 6128, Before the Subcmmnittee 011 Indian 

Affairs of the House Committee on lut erio1· and Insular 

Affairs, 86th Cong., lst Sess. (unpublished) (' 'Hear-ings''), 

Insert 5 at 3 (Mim1tes of Statl~ and Federal Co11ference, 

Oct. 21, 1958) (R. Vol. VI, Ex. 5u), q11oting Feb. 10, 1932 

letter, Senator Thomas to Commissio11er Rhoads. Senator 

Thomas later describt.~cl the Catawba Tribe as "the most 

pathetic and deplorabln Indian 'L'ri be that I llm·e discu\-

ered in the United States." llearinys on 8. 2/':);) aud S. 

8654, Before Senate Comm. on Indian .Affait·s, 73d Cong., 

2d Sess. 263 (1934). 

The State began to actiYely seek assistance from the 

federal government, both for the purposes of providing 

relief and securing a final settlement of the Tribe's claim 

arising out of the 1840 "treaty" (H. Vol. VI, Exs. 33, :14, 

35, 3G, 45, 46, 47, 48). In 19:17 and 193~), legislation was 

i1ltroduc<>d in Congress authorizing gellel'al federal super75urvey of Condition of the Indians in the United States, 

Sen. Doc. No. 92, 71st Cong., 2d Sess. 7535 (1930). 

Bin 1929, Chief Samuel Blue had written the United States 

Commissioner of Indian Affairs, informing him that the Chief 

was to appear before the State Legislature, seeking "final settlement from South Carolina on land lease, which has been 

standing for over 130 years," and asking how the BIA " settled" 

with Indians of other reservations so he would have an idea 

what to request (R. Vol. v:, Ex. 30). 
467 

8 

visiOn of the Catawbas on the condition that the State 

purchase additional lands ( R. Vol. VI, Exs. 32, 39) .

9 

D. The 1943 Memorandum Of Understanding. 

·with the failure to secure legislatiou authorizing assumption of general federal supen·ision, tlte CatawLas' 

Congressman awl the lntel'ior Department Legan to explore administrative alternatives for estaiJllsluueut oi a 

program to "rehabilitate these Indians." 90 Cong. Hec. 

A2091-92 (May 2, 1944) (Remarks of Rep. James P. 

Richards) ( R. Vol. VI, Ex. 43). This ci'.lol't, y,·ltich beg au 

in 1940, focused ou the develovwent of a joiut assistau~e 

program by the state and federal govemlllents. The ~tate 

initially conditioned its particiJ:.mtion upon a rekase and 

quit-claim by the Tribe of its claims ari:.:; iug out ot the 

1840 treaty (R Vol. Vl, Ex. 4G), but tlte lnterior iJ~.~pa.t

ment refused to agree to extiuguisltme11t of tite tril.Jul <:laiw 

as a condition for establishiug a rehabilitatiou progmm 

(R. Vol. VI, Exs. 47, 48, 50) (J.A. 43-44) 10 

9The State sought to leverage its support of the 1937 legislation into a "final settlement" of the Tribe's 1840 taking 

claim (R. Vol. VI, Exs. 33, 34, 35). The BIA investigated the 

matter, however, and prepared a report documenting the Reservation's history and the State's failure to comply with the 

terms of the 1840 "treaty" (R. Vol. VI, Ex. 36). Neither bill was 

reported out of committee, despite formal action in support 

of the 1939 bill by the South Carolina legislature autlwrizing 

the State Budget Commission "to negotiate and enter into an 

agreement with the Federal Government having as its objective 

the rehabilitation of the Catawba Indians and a final settlement 

with them so that the State may be relieved of their support" 

(R. Vol. VI, Ex. 41). 

IOEarly drafts of the cooperative agreement, known as the 

Memorandum of Understanding, had contained a provision 

purporting to extinguish the Tribe's reservation claim (R. Vol. 

VI, Ex. 49), but that provision was deleted in 1941. The Solicitor 

of the Department of the Interior confirmed BIA's position that 

the Agreement should not use "a contract under the JohnsonO'Malley Act in order to deprive the Indian tribe of claims 

which it might be able to enforce in the courts." Mem. Sol. 

Int., Jan. 13, 1942, "Re The Memorandum of Understanding, 

etc." reprinted in I Opinions of the Solicitor of the Department 

of the Interior Relating to Indian Affairs, 1917-1974, 1080, 1081-

82 (Gov't. Printing Office, n.d.) ("Interior Opinions") (J.A. 43-

(Continued on next page) 
468 

9 

'fhe State agreed to participate in the rehabilitation 

program ,,-itlwut the extinguishment proYision and Oll December 14, 1943, the Secretary of the Interior approved 

the Memorandum of Understanding between the Tribe, 

the State and the Department of the Interior. It contained 

110 lm1guage concerning extinguishment of the Tribe's 

claim. The l\femoranclum c·learly defined its purpose as 

limited to rehabilitation of the Catawbas and securing 

them "equal treatment with other citi~ens ... " (J.A. 45). 

Pursuant to the Memorandum, the State oi South 

Carolina acquired 3,434 acres of farm land close to the 

existing 630-acre state resen·atiou at a cost of $70,000 and 

com-eyed the lauds in trust to the St~eretary of the Interior. 

The State did not convey th e 630-aere resen-ation to the 

Secretary. 

E. The 1959 Catawba Division Of Assets Act. 

In the 1950's, the BIA began to com;ider \\'ithdrawing 

from its obligation.,; to JH'O\·ide spn·icl's nuder the 1943 

Memorandum of lJHderstall(ling. The federal preseuce at 

Caht\\·ha was of fe\\·er than 13 yean; dttration and ltad been 

consistently minimal. Heariii!Js at 81-8~; seeR Yol. lH, 

Exs. 11, 1:2, 13. Federal intl'rPst in withdm\\'al eoi11Cided 

\\'ith tribal dissatisfaction O\'l! l' the inability of members 

to secure finaucing for t'anil operation::; and home Luildiug 

and iHtpr1wentent. The laek of fed(•ral SP I'Yiees, coupled 

With federal r e::;trictiOliS Oll tJte :1 liPIIH tio! I 0 f auy ill tcrcst 

iu rcserYation lauds, meant that much of the newly acquired :-3,4:34-acre tract ('Onld not l1e produeti n·ly wwJ 

(R. Vol. VI, Exs. 54, 56; R Vol. III, Ex. 22). 

In 195G, Catawba Chief Blue publicly expressed dissatisfaction: "The agreement ealled for a rehabilitation 

program for us, but nothing has been dolle about it so far 

(Continued from previous page) 

44). The Solicitor also examined the source of the Department's 

authority to enter into the Memorandum. Noting that the "Federal Government did not take jurisdiction over these Indians 

until the fiscal year 1941, when the Interior Department Appropriation Act appropriated $7,500 for the relief of the Catawba 

Indians," the Solicitor concluded that the special appropriation 

"implies the grant of such jurisdiction for the purposes for 

which the funds were appropriated." /d. at 1080-81 (J.A. 40-41). 
469 

10 

to help the Catawbas." Hearings at 4-5, Insert 1 (Letter 

to the Editor, Rock Hill Evening Herald, May 9, 1956). 

Shortly thereafter, BIA officials met with the Tribe at 

the Reservation and discussed in detail the 1943 Memorandum of Understanding and the services provided pursuant 

to its terms. Hearings at 5 and Insert 2. 

In 1957 and 1958, CongTessman Robert \V. Hemphill 

sponsored large public meetings among the BIA, the Tribe 

and State officials in an effort to resoh·e the problems 

raised by the 'l'ribe. BeaTings at 6. At the 1957 meeting, 

BIA Associate Commissioner H. Rex Lee explained that 

the BIA offered "'·ery little in the way of services" and 

that the BIA's ability to provide services was limited by 

the Memorandum of Understanding "as there had never 

been any treaties or agreements prior to the Memorall(lum 

of Agreement." Ilearings, Insert 4 at 1-3 (Minutes of 

Dec. 20, 1957 meeting). Nonetheless, the Associate Commissioner stated that it was "the desire of the Bureau of 

Indian Affairs to work with the Catawbas and continue to 

assist them .... " I d. at 1 

At the 1958 meeting, a special BIA program officer 

detailed the history leadi11g to the Memorandum of Understanding, its principal IH'oYisions, and the steps that had 

been take11 to make it effective. Hea rings, Insert 5 (Minutes of Oct. 21, 1958 meeting) ( R. Vol. VI, ~x. 5G). Associate Commissioner Lee then told the 'l'ribe "[y] our main 

problem is inadequate housillg-the main reason being, it 

is impossible to bono\\- mouey. The land status has hern 

deterior [sie] to the lll(lim1s because of the r estl·icted 

status of land . . . .'' Lee suggested to the 'l'ribe that federal funds \\'ere uot the aus,rer to the Catawbas' problems, 

but rather the solution lay in each family acquiriug title 

to its lands. H earings, Insert 5 at 7 (R. Vol. VI, Ex. 56). 

Lee stated that the "[m]erltanics to get lauds back i11to 

the hands of tlte Indians" would be to reach agreement 

amoug the Indians aml then approach Cougress to "get 

the necessary legislation." Lee further told the 'l'rilw that 

he knew "that you do uot want to see the 'l'ribe brokeu up. 

You might try some possible fee-simple agreements 'vhich 
470 

11 

would be entirely feasible, but must have some help from 

the Congress." Id. 

Following the October 21, 1958 meeting, the BIA Program Officer met with numerous tribal leaders in their 

homes "to acquaint them further with possible solutions 

to their problems as well as the procedure necessary to 

carry them out." Jan. 30, 1959, Program Officer to Chief, 

Branch of Tribal Programs, at 2 (R. Vol. VI, Ex. 53). The 

program officer's report shows that a number of tribal 

officials expressed concern about the status of the 'l'ribe's 

claim against the State, hut were assured by the program 

officer that the Tribe's claims would be unaffected by the 

BIA's proposal to distribute tribal assets. 

Had a long talk with \Villie Sanders again after he 

had time to read my report. First, he talked about 

a settlement with the State before anything else could 

take place, but I told him that any claim the Catawbas 

had against the State would not he jeopardized by 

carrying out a program with the Federal Government 

[for the distribution of assets] .... 

( R. Vol. VI, Ex. 53 at 7; see also pp. 8-9, 14, 16-17). 

At a January 3, 1!)59 tribal meeting, the Catawba 

Tribe agreed to the federal withdrawal program and adopteel a tribal resolution drafted for the Tribe by the BIA. 

Hearings at 8. The tribal resolution requested the removal of federal restrictions on the Tribe's "3,388.8 acre 

resenation in York County." Hearings, Insert 6 (J.A. 

102). 11 The tribal resolution was based solely upon the inahilit~- of members to "obtain credit to build homes ... or to 

impro\'e or de....-elop the property.'' I d. The resolution speeifically conditioned tribal support of division of assets 

legislation Oll preserving intact the Tribe's loHgstandi11g 

Treaty claim: "and that nothing in this legislation shall 

llln 1957, Congress authorized the transfer of "approximately forty-nine" acres of the land acquired pursuant to the 

1943 Memorandum of Understanding to the City of Rock Hill. 

Act of May 17, 1957, 71 Stat. 31. To avoid confusion, we refer 

to the lands distributed pursuant to the 1959 Act as "3,434 

acres," although in fact only 3,383.8 acres were affected by the 

Act. 
471 

12 

affect the status of any claim against the State of South 

Carolina by the Catawba Tribe." Id. (emphasis added) 

(J.A. 103).12 

On January 26, 1959, Congressman Hemphill requested 

BIA Associate Commissioner Lee to draft legislation "to 

accomplish the desires [of the tribe] set forth in the Resolution. I belieYe it will be of great benefit to the Tribe, both 

individually and collectively .... " (J.A. 50). 

On .March 28, 1959, the Congressman presented the 

BIA's draft bill to the Tribe, reading it to the members 

"line by line". Hearing::; at 9. According to the BIA's 

minutes of the meeting, the Congressman also read the 

tribal resolution and told the Tribe that he had had the 

"legislation drawu up to carry out the intent of the resolution." (J.A. 111). Congressman Hemphill stated that 

Associate Commissioner Lee had told him on his first trip 

to ·washington that BIA services under the .Memorandum 

of Understanding could not be expanded and that, "in his 

[Hemphill's] opinion, the [1943] memorandum of understanding had been of no ach·antage to the Tribe." (J.A. 

112). Congressman Hemphill assured the 'rl"ibc that no 

legislation would be introduced without the Tribe's approval. Id. Referring to the dmft bill as a "coutract that 

was drawu up by the [BIA]" (J.A. lOG, 107), the Tribe 

then approved the introduction of the bill by a vote of 40 

to 17 and it was introduced on April 7, Hl59. 

The Congressmau's iutrocluctory remarks note that 

the Tribe ";just voted a resolution to han~ me introduce a 

bill" and cite the Tribe's need to have title to its ''4,000 

acres" so that members might no loug-er be Pxe!ndecl from 

"the privileges of deYelopllleut." 105 Coug. Ree. 54G2 

(April7, 1959) (J.A. 116). 

Congressman Hemphill's testimony before the 1-Io:i:<(' 

Interior Subcommittee described the problem to be 1'0l ::edied by his bill solely in terms of tribal members' inability 

12Petitioners incorrectly assert that the Tribe's January 3, 

1959 resolution was not "before Congress" (Pet. Br. at 40, n. 

116). The resolution is a part of the July 10, 1959 hearing record, however, having been introduced by the bill's sponsor. 

Hearings at 8, 13 
472 

13 

to "borrow any money on community property" as a result 

of an agreement "in 1944 [sic] which was ... worthless 

.... " Hearings at 7. The Congressman assured the subcommittee that his bill was based upon the Tribe's consent 

as expressed in the January 3, 1959 tribal resolution: 

I refused to introduce a bill until the Catawba 

Indian Tribe requested it. On January 3, 1959, the 

Catawba Tribe passed the follo\Ying resolutiou-I ask 

permission to insert that resolution at this point as a 

part of the record. 

As a result of that resolution, I asked the 13urea~l 

of Indian Affairs to assist me in the preparation of a 

bill, aud I introduced the bill which is before you today. 

Hearings at 8. Associate Commissioner Lee's testimony 

before the Interior subcommittee confirmed to Congress 

that the legislation had been drafted to conform to the 

'"ishes of the Tribe: 

After this meeting they petitiom·d their Congressman to introduce a bill. The Congressman asked us 

for drafting service, and we drafted a bill along the 

lines that we thought the Indians had been discussing. 

After the bill had been drafted, however, we advised Congressmau Hemphill that before we could report favorably on the bill we thought a specific hill 

should be presented to the Imlians alld explained to 

them in detail so we could he sure this was the type 

of program they wanted. rrhis was doue at the .. \larch 

28 meeting .... 

Hearings at 84. 

The reports of the House and Senate Committees 

are virtually identical, stating that the Act's purpose is 

to "provide for the division of the tribal assets of the ... 

Tribe ... among the ... members ... " (J.A. 120). "The 

assets consist principally of the tribal land which comprises nearly 4,000 acres ... " (J.A. 121). The committee 

reports, like the Act itself, make no mention of the 1763 

'l'reaty claim sought to be preserve(l by the Tribe. The 

reports do show that Congress was basing its action Oll 

the Tribe's conseut as ex:pressed in its meetings of J aLnary 3 and March 28, 1959: 
473 

14 

The Catawba General Council at a regular meeting on 

January 3, 1959, asked that Federal restrictions be 

removed from their lands and that deeds thereto be 

issued. On March 28, 1959, the general council met in 

special session and endorsed the terms of this bill, 

as introduced, by a ,·ote of 40 to 17. 

H. R. Rep. No. 910, 86th Cong., 1st Sess. 2, reprinted in 

1959 U.S. Code Cong. & Ad. News 2671, 2672 (J . .A. 121).13 

Both the House and Senate Reports portray the subject matter of the 1959 Act exclusively in terms of duties 

undertaken and assets acquired pursuant to the 1943 l\Iemorandum of Understanding: 

Efforts were made to bring the Catawba Indians 

under Federal jurisdiction during the 1930's when 

their plight was especially aggravated by the general 

depression. These efforts culminated in a memorandum of understanding approYed on December 14, 1943, 

in which the Indians, the State, and the Bureau of 

Indian Affairs each agreed to take certain actions to 

alleviate the Catawbas' depressed economic condition. 

The agreement did not specify that the Federal Government was assuming guardianship of these Indians, 

and neither the Indians nor the State ever claimed 

that the Catawbas \vere \vards of the Federal Government. 

In accordance with the memorandum of understanding the State bought 3,434.3 acres of land for the 

Catawbas and by warranty deed dated October 5, 

1945, the State conveyed the land to the United States 

in trust for the Tribe. It is this land and the accttm.-

ulated assets from. operating it that would be conveyed ttnder the provisions of the bill. 

H.R. Rep. No. 910, supra at 2673 (emphasis added) (J.A. 

123-124). 

13The efforts of the BIA and Congress to ensure tribal 

agreement to the division of assets were in accord with the 

newly revised congressional policy regarding termination of 

Indian tribes. In 1958, Congress and the Eisenhower Administration rejected coercive termination in favor of a policy that 

permitted termination based only on informed tribal consent. 

See F. Cohen, Handbook of Federal Indian Law 182 (1982 ed.), 

discussed infra at 35. 
474 

15 

The Catawba DiYision of Assets Act was signed into 

law on September 21, 1859. Following distribution by the 

Secretary of the Interior of only the assets acquired in 

19-±:l, the Secrett:ry formally notified South Carolina Go\·-

ernor Hollings and Catawba Chief Sanders that the Department had carried out the mandate of the 1939 _\ct.: 

the notice spoke exclusively in terms of withdrawing from 

the ] 943 Memorandum of Understandi11g (J.A. 1-H). 

Thereafter, the Catawba Tribe continued to reside on 

the small G30-acre state reservution. In 1971, the South 

Carolina Legislature enacted legislation exempting rcsen·ation mobile homes from state taxation and in 107.), 

the South CaroliHn ""UtonH'Y UeJI(•ral issued a l'orlllnl opinion that the State continued to hold the G30-acre "old reservation" in trust for the Tribe. Op .. Atty. Gen. S.C. Xo. 

3988, March 6, 197 3 (H. Vol. YL Ex. 13). 

---------0---------

SUMMARY OF ARGUMENT 

In 1840, the State of South CaroliBa, in the last of a 

series of illegal land transactions spmmiug more thall 30 

years, convinced the Cata\\'ba Tribe to "sell" its 144,000-

acre 17G3 rl'reaty Hesenntio11. The State Jll'Ol1lised to pnrchase for the Tribe a new rese rYa tio11 (' ls<>where, but did 

not, acquiriug instead a 630-acre farm that had bel'll [nu·t 

of the 1763 'l'reaty Rescn·ation. Dming the century that 

followed, snccessi ve generations of tribal leaders attempted to regain the land, and snccessi ,-e generations of state 

and federal officials turned their backs, each telling the 

rrribe that r esponsibility rested with the other. 

In the 1930's, the State m1d the Department of the 

Interior began negotiatioJIS toward reaching a cooperative agreement for the purpose of rehabilitating the Catawba Tribe. At that time, the f)tat e attempted to secure 

au extinguishment of the 1840 tribal claim as a condition 

to participating in the rehabilitati011 program, hut the 'J'ribe 

and the Department refused ami the three-party eooJWl'ative agreement was e>xecuted in 1943. [J nder its terms, the 

Secretary took into trust 3,434 acres, located within the 

1763 rrreaty boundaries, and agreed to pro\·ide limited 

services to assist the f5tate in tl1e relief pffort. 
475 

16 

Fifteen years later, with the relief program failillg· 

due to lack of federal assistance all(l tribal dissatisfaction 

high, the BIA and the local Congre~sman proposed to the 

Tribe that the 3,434 acres be distributed amo11g tribal members. 'l'ribal leaders initia1ly refused, saying that the 1840 

dispossession claim against the State \\·ould han to be resolved first. But the BIA assmecl them that tlw di ,·ision 

of assets plan would not affect the claim. On January 3, 

1959, a majority of the Tribe, which at 110 time dming this 

period was represented by counsel, consented to the division plan and adopted a resolutiou, drafted by the BIA, 

that specifically conditioned tribal consellt on lea \·ing the 

"status of any claim" against the StatP unaffected. 'l'he 

Congressman then asked the BL\ to draft a bill that carried out the resolution. 'l'he BL\. complied and the Congressman then returned to the Tribe, read the bill line-byline, and assured them it carried out the intent of th('ir 

resolution. Based on these assurances, the Tribe appro,·ed 

introduction of the bill. 'J'hroughont the entire legislative 

process, Congress professed to be acting in reliance on allCl 

consistently with tribal consent. 

This understanding between the Tribe, the Congressman, and the BIA is at the heart of this case. Tribal consent to the legislation was required by congressional and 

administrative policy. 'l'herdore, abseut a clear expression of Congressional intent to override, the Act must be 

read consistently with the as:mrances and conditions upon 

which that consent was obtained. 

Petitioners rely ou the failure of the 1939 Catawba 

Division of Assets Act to mention the tribal claim and a 

section of the Act containing language designed ouly to 

end active federal supen'ision. In complete disregard of 

the legislative history, petitioners would have the Court 

focus only on isolated statutory language and rule that 

Congress, without mention, breached the understanding 

with the Tribe and removed all federal protections from 

the 1763 Treaty lands that had admittedly (for sunnnary 

judgment purposes) applied until 1959. 

But Congress does not deal in so cavalier a fashion 

with important Indian treaty rights. In view of the strong 
476 

1i 

congressional policy aga inst application of state statutes 

of limitations to Indian treaty lands, County of Oneida v . 

Oneida Indian Nati on, 10;) S.Ct. 1245, 1:253 (1983), if Co ng r e:ss had intemlecl to H}>J >ly a l!lllitations period, it would 

ha n • lH'O\·idcd that the c-la im ,,·ould be deem ed to han~ acenH•d on the .Act's <'ffeetiw, da te as it clif1 in lDGG \dJCn it 

e11aded :28 U.S.C. ~ 2415. .At the ,·c ry lea .-,; t, some notice 

\\·onld ltaYe been proYicled to the Trilw tlmt the " statn::-;" of 

the cla im \Yonld, after all, be al'ff'c ted; that tl1e !'arlier 

a ssurances \\'ere 11 0 1onge r iu efl'ed: and that tl H' Trilw 

\\'01lld ha\C t o file its clailll \\ifhi.11 a }ll' l'iod of year:; Ol' lose 

it foreYer. 

The legislati\'P history alld s11rrounding eircmn:;tances 

of the 1959 Act show clearly tha t Cong r ess iutt•nded only 

t o \\'i thdra w from the 1943 c·oopera ti \'e agrecnH:n t a nd 

distribute onl y the 3,4:i4 acres acq11ire!l pur::-;na nt to its 

t erms. To that eud, the HJ59 .Act r cmond f ederal restrictions only fr om the :~.4:34 aer , and tl1e Secretary iu fact 

di tributed o11ly the :3,434 <H'H' ~. The lation llip undert.akPn by the federal gO\'CJ'lllJH' llt in Hl43 \\·as 11ot a ge11er al 

a ssumptiou o f g ua rdian!:'llip s upc l·\·i::;ion: it ,,·as d(•JilOllstrably limited to r e lief and r ehabilitation of the Tribe 

and fmllld its source exd us i ,·c ~~- i 11 a li111 i ted 1~l40 eougressional appropriation for that purpose. The federal 

p r otections at issn(• lwrP an' unrcla ted to and pre-da tt~ the 

federal rt> lief project by mor e tha u lUO years, l'indi11g t lt('ir 

source in treaty, the Coustitution all(! f ederal statutory and 

common Ia\\', 

In simila r circumstances, this Court held that treaty 

rights not otherwise clearl y ineludNl \\ithiH the scope of a 

t ermination act would 11 0t be nbrogat <' d by the la nguage 

r elied on by petitioners here. Meuomiuee Tribe -v. United 

S tates, 391 U. S. 404 ( 19G8 ). Suel1 lang uage, the Comt held, 

was limited t o the withdnma1 of fed eral supervi:::ion. Because that la11 guage, conta ined iu tl1i :; case in :2 5 U.S.C. 

§ 935, does not purport to identify the property from which 

supen·ision is withdrawn, its blanket application to triLal 

vroperty would r esult in the indin•d al>rogat!ou of rip;iits 

not mentioned ill the act and i11tended by (\mt!;r ess to lJP 

left outside the scope of the Ad's co,·crag-e. The Conrt 
477 

18 

thus looked to the "o,·erall lep;islatin~ plan" and found no 

clear intent to abrogate or modify treaty rights. The mere 

lifting of federal snven-ision was llot sufficient to extinguish treaty rights not otherwise meHtioHed. 

The Menominee analysis is fully applicable here. \Yhat 

the Catawba Tribe bargained for aml r eceiYecl from the 

Crown in 17G3 was not a tract of land--they already possessed the land. Rather, what the Tribe re ein d in exchange for its vast aboriginal territory wa s the promise 

of soYereign protectioll. The United States assumed the 

Crown's obligatiolls and thus the remo\·al of fedNal protection from and application of state law to the 17G3 'l'reaty 

lands \Yonld exti11guish the fuudamental incident of Catawba Treaty title-federal protectioll. That, in turu, 

would lead directly to extinguishment of the possessory interest, thereby defeati11p; the Yery purpose of the Treaty. 

Construction of the 1959 Act in accord with thP mtderstanding between the Tribe and the federal go,·ernmeut to 

leave the status of the claim unaffected means only that 

the Tribe will have its long-awaited day in court. 'l'he end 

result of the Hi-year federal effort to rehabilitate the Catawba Tribe should not be 0xtinguishment of the historic 

claim that the 'J'ribe persistently sought to vrotect, both 

when it agreed to accept federal rPlief and when it agreed 

to its diseontinumtee. 

---------0---------

ARGUMENT 

I. THE 1959 ACT HONORED THE RIA'S AGREEMENT WITH 

THE TRIBE AND DID NOT EXTINGUISH OR LIMIT THE 

TRIBE'S 1763 TREATY CLAIM. 

For purposes of summary judgment, petitioners' motion necessarily assumed that the 1840 state "treaty" was 

void under federal law and that the Tribe retained a right 

to possession of its 17G3 Treaty lands until 1959. Petitioners' motion also a ssumed that the federally-protected 

status of the 144,000-acre Treaty tract was not \·alidly disturbed until 1959. 'l'hus, wl1ether it is claimed that the 

1959 Act applied state statutes of lilllitations or tltat the 

Act terminated any and all trust relationships betm~en 

the Tribe and the United States, the underlying issue is 
478 

19 

the same: did the 1939 .i\.ct extingnish s11b silentio the federally-protected status of the 11G:~ Treat:- lands in addition to the 3,434 acres acquired in 1943. ThPse questions 

should be rPsoh·ed iu lig·ltt of tltt" i'lmdmneuta] principles 

recc·ntly affirmed iu Cozl/ltiJ of 011 cida r . 011cida Indian 

Xati o11, 103 S.Ct. 1245 ( 193.:> ) (Oneida II): time-rC' lateLl 

state ]a\\' def<'n ses \\-ill not he applietl to ddennine rights 

in tribal lands :wcl Co11gressional illtl'ut to extinguish Indian title lttust be plain aml1maml)iguous. 

A. The 1959 Act Removed Federal Restrictions Only From 

The 3,434 Acres Acquired In 1943-Congress Took No 

Action With Respect To The 1763 Treaty Claim. 

'I'he 19;)D Di\·i~ ion of .\ssds Act deals with only t\\'o 

classes of asst'ts, i.e., ''the tri he's assets that are held in 

tru st by th(• ('!Jitr <l States," :23 G.S.C. ~ 932, and those 

"ass<.•t...: that an· held by tlte State in trust f'or tlte 'J'ribe." 

:25 U.S.C. ~ 9~~:3(a). In 195!). altltough the Tribe's 11G3 

Treaty lands were still subjvct to fc,d e ral protection, the 

technical fee titl e to tlte Trea ty lands mts not actually held 

by either the federal go,·emtncnt or the State of Sonth 

Caro1ina. 14 lienee , the l!J5!) . .:\ct din·etcd or pcn11itt('d distributiou of tribal assets that did 11ot i11 elnde the 17G3 

Trraty claim. r:l'o c11allle tit<> distribution, ~ 4 of the Act 

remo\·es fedt'ralrestriction s i'J'Olll o11ly tl :e lands "tlisposed 

of" under the pro\·isiolls of ~ i~ a:td vro\·idPs for the i:ssuance of " unrestricted title" to oul:· tlw ''property conveyed." 23 U.S.C. ~§ 933, 934. 'l'herei'ore, the Aet by its 

terms l'PnlO\'e<l feeler a l r estrictions front only the 194:~ 

Hesenation. 

1'his legi.slati\'e schentl' is collfin: 1~ ·d h~· the conunittee 

rrports 011 the 1H59 .Act, as \\·ell as tltc· <~d ions taken by ll!-

terior to implement it. The re]Jm1s dumonstmte conelu14While fee title, or the pre-emptive right to purchase from 

the Indians, became vested in the State of South Carolina upon 

this Nation's independence, Oneida Indian Nation v. County of 

Oneida, 414 U.S. 661, 667, 670 (1974) (Oneida I); see Clinton 

and Hotopp, supra, 31 Me. L. Rev. at 36, South Carolina in 1838 

conveyed its pre-emptive rights in the 1763 Treaty Reservation 

to the non-Indian lessees who occupied the Catawba Reservation at that time. Act of Dec. 19, 1838, S.C. Code of Laws, 

§ 27-15-30 (1976), VI Stat. 602; see Op. Atty. Gen. S.C., Jan. 

27, 1908, 20-21 (R. Vol. VI, Ex. 10). 
479 

20 

sively that the Tribe, the Interior De11artment and Congress were concerned only with the n•servation acquired 

in 1943, and to a lesser degree the 630 acres acquired in 

1842: 

The assets consist principally of the tribal land which 

comprises nearly 4,000 acres, including 630 held in 

trust by the State of South Carolina. 

H.R. Rep. No. 910, supra at 2672 (J.A. 121). 

In accordance with the memorandum of nndPrstanding, the State bought 3,434.3 acres of land for the 

Catawbas and [in] ... 1945 ... conveyed the land to 

the United States in trust for the ~'ribe. It is this land 

and the acc1mwlated assets from operating it that will 

be conveyed under the provisions of the bill. 

Id. at 2673 (emphasis added) (J.A. 124). 

The Report also states that the 3,388.8 acres held in trust 

by the United States aml the 630-acre state reservation 

"comprise the tribe's total real property." Id. at 2674 

(J.A. 124). 

Following passage of the 1939 Act, the Department of 

Ute Interior acted consiste11tly with the condition upon 

which tribal consent had been obtained and distributed 

only the federally-held trust lands acquired in 1943, Letter of March 29, 19GG, Commissioner of Indian Affairs to 

Dir., S.C. Archi\·es (R. Vol. III, Ex. 37). Tlw Department 

took no action to quiet title to the 'l'reaty lands in the Tribe 

or to otherwise distribute or affect the Tribe's 1763 Treaty 

claim, confirming that the Department did not interpret 

the 1959 Act to include the claim among the tribal assets 

subject to the Act.15 

Petitioners, howeYer, fiml Congressional intent to extinguish federal protection of the additional 140,000 acres 

of the 1763 Treaty tract in the language of § 5, relying on 

that section's general application of state law and termination of the Catawbas' limited eligibility for federal In15The statutory interpretation of the agency to which the 

administration of the statute is charged is entitled to deference, 

Udall v. Tallman, 380 U.S. 1, 16 (1965), particularly where the 

agency participated in drafting the statute and directly made 

known its views to Congress, as Interior did here. Zuber v. Allen, 396 U.S. 168, 192 (1969). 
480 

21 

dian services. This Court has held that language very 

similar to~ 5 of the Catawba Act is limited by its terms to 

the "termination of Federal supervision over the property 

and members of the Tribe." Menominee Tribe v. United 

States, 391 U.S. 404, 412 (1968) (emphasis in original).16 

Section 5 by its terms does not remove federal restrictions 

from tribal property, nor does it define the property which 

will no longer be subject to federal supervision upon the 

lifting of federal restrictions. Therefore, the applicability 

of § 5 with respect to restricted tribal property must be 

determined with reference to the other sections that do in 

fact identify the property that is the subject of the Act, 

§§ 2, 3, and which accomplish the actual removal of federal 

restrictions, § 4. 

The all-encompassing application of ~ 5 advocated by 

petitioners would result in the extinguishment of rights 

intended to be left outside the Act's scope. That is precisely the result which the Court in Menominee refused to 

reach: treaty-secured rights to tribal property that is not 

clearly included with a termination act's coverage will not 

be backhandedly affected by the general lifting of federal 

supervision. Moreover, this Court has repeatedly held 

that congressional intent to impair Indian rights "must be 

expressed on the face of the Act or be clear from the surrounding circumstances and legislative history." Mattz 

v. Arnett, 412 U.S. 481, 505 (1973); Bryan v. Itasca County, 

426 u.s. 373,392-93 (1976). 

Congress simply did not deal with the 144,000-acre 

Treaty claim in any manner in 1959. As the parties to the 

161n Menominee, the Court considered whether a provision in the Menominee Termination Act, 25 U.S.C. §§ 891-902, 

that was similar to § 5 of the Catawba Division of Assets Act, 

had the effect of subjecting that Tribe's Treaty right to hunt and 

fish to the laws of Wisconsin. The Menominee Act made no 

mention of either preserving or extinguishing the right, but 

did contain the provision that all federal Indian statutes would 

no longer be applicable and "the laws of the several states shall 

apply to the tribe and its members in the same manner as they 

apply to other citizens .... " 25 U.S.C. § 899. The Court examined the "overall legislative plan" and found that § 899 was 

limited to withdrawal of federal supervision: Congress had 

not intended to backhandedly extinguish the Treaty right 

through the general lifting of federal supervision. 
481 

22 

Memorandum of Understanding had done in 1943, Congress left the Treaty claim entirely outside the scope of 

the Act. Petitioners' argument that Congress, by ending 

the Tribe's limited eligibility for federal services and the 

BIA's supervisory duties for the 3,434-acre 1943 Reservation, also sub silentio extinguished or limited the 1763 

Treaty claim in violation of the express understanding 

reached between the Tribe and the federal government is 

untenable. 

B. The Legislative History And Circumstances Surrounding 

The 1959 Act Demonstrate That Congress Did Not Intend To Affect In Any Manner The Tribe's Treaty Claim. 

The Court of Appeals correctly held that the legislative history of the 1959 Act demonstrates congressional 

intent not to affect the Treaty claim. Rather, the Act and 

its history show an intent "only to end federal supervision 

and authority arising out of the 1943 Memorandum of U nderstanding." (Pet. App. 15a-16a). While the Act itself 

does not mention the Tribe's 1763 Treaty land, its legislative history reveals that Congress intentionally left the 

Tribe's Treaty claim unaffected.17 

Petitioners and the United States, however, would 

dismiss entirely the relevant legislative history that shows 

so clearly what Congress intended to accomplish in 1959. 

They argue that the 1959 Act unequivocally makes state 

law applicable to the Tribe's 1763 Treaty claim and would 

have the Court look no further than the words of § 5 for 

its result. The first major difficulty with this approach 

to construction of the 1959 Act is that it ignores the limited construction already given very similar language by 

this Court in Menominee Tribe, supra. An equally serious 

difficulty lies in the complete failure to account for the 

understanding reached between the United States and the 

r:J.'ribe, i.e., tribal consent to the division of federal assets 

17This Court has stated that whenever it is asserted that 

an Act of Congress affected the status of an Indian reservation, 

a court must "in all cases" consider "the face of the Act, the 

surrounding circumstances, and the legislative history" to determine the Congressional intent. Rosebud Sioux Tribe v. Kneip, 

430 U.S. 584, 587 (1977); Mattz v. Arnett, 412 U.S. 481, 505 

(1973); DeCoteau v. District County Court, 420 U.S. 425 (1975) 

See Solem v. Bartlett, 104 S.Ct. 1161 (1984). 
482 

23 

was expressly conditioned upon nothing in the act affecting 

the "status of any claim" arising out of the 1840 clispossession. Hearings, Insert 6. Moreover, petitioners' approach fails to account for Congress' exclusive focus in 

1959 on the 1943 Memorandum of Understanding}8 

The Court should not construe the provisions of § 5 

in isolation from the remainder of the Act and its history, 

but should consider § 5 with Congress' overall purpose in 

mind: 

In the interpretation of statutes, the function of 

the courts is easily stated. It is to construe the language so as to give effect to the intent of Congress. There 

is no invariable rule for the discovery of that intention. To take a few words from their context and 

with them thus isolated to attempt to determine their 

meaning, certainly would not contribute greatly to the 

discovery of the purpose of the draftsmen of a statute .... 

There is, of course, no more persuasive evidence of 

the purpose of a statute than the words by which the 

legislature undertook to give expression to its wishes. 

Often these words are sufficient in and of themselves 

to determine the purpose of the legislation. In such 

cases we have followed their plain meaning. \Vhen 

that meaning has led to absurd or futile results, however, this Court has looked beyond the words to the 

purpose of the act. Frequently, however, even when 

the plain meaning did not produce absurd results but 

merely an unreasonable one "plainly at variance with 

the policy of the legislation as a whole," this Court 

has followed that purpose, rather than the literal 

words. 

181n its analysis of whether the 1959 Act ratified the 1840 

"treaty," the United States concedes that (1) the Act should be 

construed in light of the january 3, 1959 tribal resolution; (2) 

the "Catawba Act was drafted to carry out the intent of the 

resolution," U.S. Br. at 8, n. 7; and (3) "Congress's focus in this 

case [was] on the 1943 Memorandum of Understanding." /d. 

at 15. But in its analysis of the applicability of state law to the 

1763 Treaty claim, the United States does an about-face and 

accords absolutely no significance to the tribal resolution, or 

other legislative history, arguing instead that only the language 

of § 5 should be considered. ld. However, all sections of the 

Act must be construed in light of the conditions and assurances 

upon which tribal consent was obtained. 
483 

24 

United States v. American Trucking Ass'n., 310 U.S. 534, 

542-3 (1940) (footnotes omitted); Chemehuevi Tribe of 

Indians v. Federal Power Commission, 420 U.S. 395 (1975). 

Petitioners' and the United States' reliance on only the 

language of ~ 5 in isolation from the rest of the Act and 

its history is misplaced, for even if the provisions of § 5 

were clear, which they are not, their application here would 

lead to a result that is "plainly at variance" with the overall 

purpose of the legislation. I d. 

1. Congress Intended The 1959 Act To Implement The Division Of Assets Plan Agreed To By The Tribe, Their 

Congressman And The BIA: Congress Understood That 

Plan To Be Embodied In The January 3, 1959 Tribal Resolution. 

In 1958, the BIA's special program officer met with 

tribal leaders and assured them that the Tribe's 1763 

Treaty claim would be unaffected by the proposed legislation to divide the federal assets (R. Vol. VI, Ex. 53). The 

tribal resolution endorsing the division of assets legislation was drafted by the BIA (the Tribe was not represented by counsel), and specifically conditioned tribal consent on the Tribe's understanding "that nothing in this 

legislation shall affect the status of any claim against the 

State ... by the ... Tribe." Hearings, Insert 6 (J.A. 103). 

Thereafter, Congressman Hemphill requested the BIA to 

draft a bill to accomplish the desires of the rl'ribe as set 

forth in the tribal resolution (J.A. 50). The BIA complied. Hearings at 84. 

The Congressman then returned to the Tribe on March 

28, 1959, read line-by-line the BIA's draft bill containing 

§ 5 as enacted, Hearings at 9, and assured the 1'ribe that 

the bill had been drafted to carry out the intent of the 

January 3, 1959 resolution (J.A. 111). Referring to the 

bill as a "contract that was drawn up by the [BIA]" ( J.A. 

106, 107), the Tribe then approved the bill and the Congressman introduced it, emphasizing to his colleagues that 

the Tribe had enacted a resolution supporting it. 105 Cong. 

Rec. 5462 (April7, 1959) (J.A.l17). 

At the congressional subcommittee hearing, the Congressman emphasized "the deplorable situation of the Indians" and the Tribe's dissatisfaction with the 1943 Mem-
484 

25 

orandum of Understanding. Hearings at 4-5. The Con~ 

gressman testified that his bill was "to do something about" 

the problems resulting from the "worthless" 1943 agreement that resulted in the Indians' inability to "borrow any 

money on community property [or] ... develop the reservation." Hearings at 7. The Congressman told the subcommittee that he had refused to introduce this bill until 

the Tribe requested it and then introduced the tribal resolution into the record to establish tribal agreement. Hearings at 8, 13. He emphasized throughout his testimony 

that the Tribe had consented to the bill. Summarizing the 

situation, the Congressman testified: 

We are frankly, faced with this alternative: Do what 

the Indians want, or leave the situation in its present 

status which bars many who want to own their lands, 

their homes, from expecting progress in the future. 

Hearings at 11 (emphasis added). The congressional committee reports on H.R. 6128 show that Congress relied specifically on the January 3 and .March 28 endorsements by 

the Tribe. H.R. Rep. No. 910, s~tpra at 2672, 2675 ( J.A. 

121, 126). 

'l'his legislative history demonstratE~s that Congress 

houored the agreement with the Tribe and left the tribal 

claim unaffected. Neither the Act itself nor the Committee Reports coHtain e\,en a suggestion that Congress intended to alter the status of the 'l'ribe's understanding 

with the BIA in any way. 19 The 1959 heari11g record contains the January 3 tribal resolution, as well as au October 

I9Petitioners urge the Court to disregard tribal consent as 

expressed in the January 3, 1959 resolution, arguing that a more 

relevant indicator of what the Tribe agreed to is the post-Act 

"vote" of the Tribe (Pet. Br. at 45, n. 133). Interior's post-Act 

explanation, however, contained nothing to indicate that the 

prior assurances were no Iunger in effect-§ 5 had not been 

amended from the time that BIA and the Congressman read it 

line-by-line and assured the Tribe that the Act carried out the 

resolution's intent. Moreover, as Assistant Commissioner Lee 

testified, Hearings at 86-87, the purpose of the amendment to 

§ 1 requiring a plebiscite was merely confirmatory of the earlier 

understanding, i.e., "to dispel! all doubt" that the earlier meetings (January 3 and March 28) were "indicative that the large 

majority ... actually want this type of legislation." Lee told 

the subcommittee that the BIA was "reasonably sure" they were. 

/d. 
485 

26 

29, 1958 letter from Chief Blue claiming that the state 

"owes us a great deal" for the "land under lease,"-described as the area presently claimed by the Tribe. Hearings, unnumbered insert. Congress was thus certainly 

aware that the Catawba Tribe possessed a claim that it desired to protect, that the Tribe had expressly conditioned 

its consent to division of the 3,434 acres on leaving the 

status of the claim unaffected, and that the bill had been 

drafted to conform to tribal desires. At every stage of 

the legislative process, from agency drafting to final enactment, it was emphasized that the Tribe had consented to 

the provisions of the bill. 

2. Because Tribal Consent Was Required By Congressional And Administrative Policy, The 1959 Act Must Be 

Construed Consistently With The Conditions Upon 

Which Tribal Consent Was Obtained. 

The congressional and departmental concern for tribal consent conformed to an important recent revision in 

federal termination policy that occurred in 1958. In that 

year, Congress and the Eisenhower Administration rejected the coercive termination policy that underlay the 

first nine termination acts enacted in 1954 and 1956. F. 

Cohen, Handbook of Federal Indian Law 182 (1982 ed.). 

The revised policy placed special emphasis on both the Indians' understanding and consenting to termination. On 

September 18, 1958, Secretary of the Interior Fred Seaton 

publicly renounced coercive termination. Seaton stated 

that no Indian tribe or group should be terminated: 

unless such tribe or group has clearly demonstratedfirst, that it understands the plan under which such 

a program would go forward, and second, that the 

tribe or group affected concurs in and supports the 

plan proposed ... 

Id., Broadcast address over Radio Station KCLS, Flagstaff, Ariz., quoted in 105 Cong. Rec. 3105 (1959). Thus, 

unlike earlier termination acts, Congress expressly conditioned implementation of post-1958 acts on the consent 

of the affected Indians or tribes. See 72 Stat. 619, § 2 (b) 

(California Rancheria, 1958); 25 U.S.C. § 931 (Catawba, 

1959); 25 U.S.C. § 971 (Ponca, 1962). 
486 

2:7 

If Congress had intended to repudiate the conditions 

and assurances upon which the Tribe's consent was obtained, then it certainly would have notified the Tribe to 

that effect. Petitioners' interpretation of the legislative 

history, in particular their reliance on general statements 

and explanations made to the Tribe regarding ending federal responsibility and the inapplicability of federal Indian laws, see, e.g., Pet. Br. at 17, would require the Tribe 

-which at no time during the legislative process was represented by counsel (other than the BIA)-to simply discover at some later date that the prior guarantees were no 

longer in effect. 

But Congress certainly could not have expected the 

Catawba Tribe in 1959 to understand the intricacies of the 

applicability of time-related state law defenses or whether its claim was in fact founded in state or federal law. 

Chief Samuel Blue, who led his Tribe for most of the 40-

year period preceding the 19·59 Act, see 105 Cong. Rec. 

5462 (April '7, 19·59) (J.A. 116), had never attended school 

and was unable to read or write. Survey of Condition of 

the Indians, etc., 8. Doc. No. 92, supra at 7552. The Tribe 

simply understood that the State had taken its 1763 Treaty 

lands and had not honored its agreement to buy new tribal 

lands-leaving the Tribe destitute on a barren tract comprising less than one percent of its former holdings. As 

best it could, the Tribe sought to ensure that the Division 

of Assets Act would not ''affect the status of any claim 

against the State of South Carolina"-whatever that claim 

might be-and the United States agreed.20 Indeed, the 

Tribe viewed the bill presented by Congressman Hemphill 

as a "contract" (J.A. 106). If Congress had intended to 

change the terms of that agreement and apply state stat20Petitioners argue that the Tribe sought only to preserve 

a "claim against the State," as distinguished from the other public and private defendants (Pet. Br. at 46, n. 135). However, the 

history of events leading to the 1943 Memorandum of Understanding demonstrate that this was simply the common manner 

of referring to the claim arising out of the 1840 dispossession. 

See, e.g., R. Vol. VI, Ex. 47. The Tribe, South Carolina, and the 

United States all knew that the 1763 Treaty claim had been persistently pursued by successive generations of tribal leaders 

and that the claim had not been addressed and resolved. 
487 

28 

utes of limitations-thereby drastically affecting the ''status" of the claim-it must be presumed that Congress would 

have notified the Tribe that its claim would have to be 

filed within a certain period of years or be forever lost.21 

Absent such clear expression of contrary intent by 

Congress, the intent of the Tribe, the Interior Department 

and Congressman Hemphill to leave the 1763 Treaty 

claim unaffected is controlling, for Congress clearly intended to enact legislation that would implement the division of assets plan agreed to by the Tribe. Moreover, 

Congress knew that tribal consent was embodied in the 

January 3, 1959 resolution. Hearings at 8, insert 6. See 

Northern Cheyenne Tribe v. Hollowbreast, 425 U.S. G-1:9, 

656-8 (1976) ("Nothing in the legislative history shows 

any congressional purpose not to follow the Secretary's 

proposal [that honors the Tribe's request] ... "). 

Petitioners argue that because Congress explicit]~: 

preserved certain Indian rights or claims in other termination acts, Pet. Br. at 43-44 and n. 127, its failure to do 

so here shows congressional intent to subject the claim to 

state law. However, petitioners' assertion is squarely inconsistent with the rule established by the Court in Menominee Tribe v. United States, 391 U.S. 404 (1968), where 

the Court held that notwithstanding the Menominee Termination Act's failure to preserve or even mention treaty 

hunting and fishing rights, that Act's explicit provision that 

' ' the laws of the several States shall apply to the 'l'ribe 

and its members in the same manner as they apply to other 

citizens ... ," 25 F .S.C. ~ 899, would not operate to e.·dinguish the federally-protected right to hunt and fish free 

of state law. Congress' failure to expressly preserve the 

tribal claim in this case is fully consistent with its express 

and limited plan to distribute the 3,434 acres acquired 

21(n Oneida II, this Court noted the strong congressional 

policy against the application of state statutes of limitations to 

Indian land claims. If Congress had intended to change this 

policy with respect to the Catawba's Treaty claim, it would have 

surely given notice and provided that the claim would be 

deemed to have accrued on the effective date of the 1959 Act, 

as it did in 1966 when it enacted 28 U.S.C. § 2415. 
488 

29 

pursuant to the 1943 Memorandum of Understanding.22 

Consistent with the guarantees made to the Tribe and the 

conditions upon which tribal consent to the legislation had 

been obtained, Congress simply was not addressing the 

much larger 144,000-acre 1763 Treaty claim. 

C. Federal Protection Of The 1763 Treaty Lands Was Not 

Extinguished By The 1959 Act. 

1. The Federal Protections At Issue Here Are Unrelated To The Duties Undertaken By The United 

States In 1943 And Hence Were Unaffected By 

The 1959 Act. 

The legislative history of the 1959 Act demonstrates 

that the federal duties and responsibilities that were ended in 1959 were founded in a 1940 Congressional appropriation of $7,500 to enable the BIA "to cooperate with 

the State of South Carolina in the rehabilitation of the 

Catawba Indians". Hearings, Insert 5 at 3 & 4 quoting 

Oct. 31, 1940 memorandum from Commissioner of Indian 

Affairs to Secretary of Interior.23 In fact, Congress had 

twice refused, in 1937 and 1939, to enact legislation that 

would have extended general federal supervision to the 

Catawbas (R. Vol. VI, Exs. 32, 39); see note 9, supra. Associate Commissioner Lee testified at the hearings on the 

1959 Act that the BIA ''gave no sen ice at all until 1943. 

We had no relationship with these Indians whatsoever of 

any kind. It was only in 1943 that we entered into this 

cooperative agreement with the State of South Carolina 

to give some supplementary services to this group." Hearings at 88. 

22When Congress intended to preserve a tribal property 

right, but subject that right to the operation of state law after 

a period of years, it specifically so provided. Section 14 of the 

Klamath Termination Act, 25 U.S.C. § 564m, provides that the 

Tribe's water rights shall not be abrogated by the Act and that 

Oregon law "with respect to abandonment and nonuse shall 

not apply to the tribe and its members until fifteen years after 

the date of the proclamation .... " 

23The Oct. 31, 1940 memorandum further stated: "[t]here 

is no question of assuming federal guardianship jurisdiction, 

but merely of carrying out the apparent desire of Congress to 

give a small degree of aid to the state coupled with expert advice." Hearings, Insert 5 at 4. 
489 

30 

The Committee Reports on the 1959 Act speak exclusively of a relationship and duties that "date back only 

to the 1940's" and which were undertaken for the limited 

purpose of "improv[ing] the economic conditions of the 

members." H.R. Rep. 910, supra at 2672 (J.A. 120-121). 

The departmental report likewise identifies the duties and 

assets that are the subject of the Act as those acquired 

pursuant to the Memorandum of Understanding. The limited nature and scope of the particular trust relationship 

that is the object of the 1959 Act is confirmed by the following departmental disclaimer: 

The agreement did not specify that the Federal Government was assuming guardianship of these Indians, 

and neither the Indians nor the State ever claimed 

that the Catawbas were wards of the federal government. 

ld. at 2673 (J.A. 123). In fact, it is noteworthy that the 

other stated objective of the Memorandum, in addition 

to rehabilitation of the Tribe, was that the ''Catawba Indians be accorded equal treatment with other citizens, without discrimination." (J.A. 45). In 1962, the "Notice" that 

the Interior Department had complied with the 1959 Act, 

provided by the Secretary to the Tribe and the South Carolina Governor, spoke exclusively in terms of withdrawing 

from the 1943 Memorandum of Understanding (J.A. 141). 

The limited scope of duties undertaken by the United 

States in 1943 is further illustrated by the fact that the 

Department of the Interior deliberately left the Tribe's 

land claim outside the scope of the duties undertaken in 

1943, refusing to agree to a clause in the Memorandum of 

Understanding that would have purported to extinguish 

the claim. Mem. Sol. Int., .Tan. 13, 1942, I Interior Opinions at 1081-82 (J.A. 43-44). Instead, the Department maintained the status quo and advised the State that "the 

State itself could most properly take the initiative in negotiating with the Catawba Business Committee on the 

matter of the Tribal claim." Aug. 28, 1941, Assistant Com-
490 

31 

missioner of Indian Affairs to South Carolina State Auditor (R. Vol. VI. Ex. 47).24 

The legislative history and surrounding circumstances 

demonstrate that the federal duties and responsibilities 

that were extinguished in 1959 were only those undertaken 

in 1943 to provide relief for the Catawbas. In contrast, 

the federal protections at issue here are unrelated to and 

pre-date the 1940 appropriations act by more than 100 

years. The federal protections at issue here are founded 

in the 1760 and 1763 Treaties with the Crown, the Constitution, federal common law, and the Indian Nonintercourse 

Act, 25 U.S.C. § 177. 

Lower courts that have considered the continuing applicability of Nonintercourse Act protections have concluded that, in order to maintain such a claim, a tribe 

must demonstrate that "the trust relationship between the 

United States and the tribe, which is established by coverage of the Act, has never been terminated." Narragansett 

Tribe v. So. R.I. Land Devel., 418 F.Supp. 798, 803 (D.R.I. 

19176) (emphasis added). In Joint Tribal Council of the 

Passamaquoddy Tribe v. Morton, 528 F.2d 370, 379 (1st 

Cir. 1975), the First Circuit Court of Appeals held that 

24The Interior Department's interpretation of the scope of 

authority granted by Congress is entitled to weight. Udall v. 

Tallman, supra. In his August 28 letter, the Assistant Commissioner of Indian Affairs explained to the State Auditor the limited nature of the "responsibilities this Office can assume": 

As you will recall, after the State Legislature made its original offer a few years ago to contribute $100,000 toward 

a rehabilitation program for the Catawba Indians, a bill 

was introduc;ed into Congress to bring the Catawbas under 

Federal supervision. This bill, however, was disapproved 

by the Bureau of the Budget, and in lieu thereof Congress 

authorized a small appropriation of $7,500 to enable us to 

cooperate with the State and with other Federal agencies 

to work out a program. This appropriation is limited to 

relief and to administrative expenses in connection with 

the cooperative project. 

See Mem. Sol. Int., jan. 13, 1942 (J.A. 41), discussed supra at 

n. 10, where the Solicitor held that the source of the Department's authority to enter into the 1943 Memorandum was the 

FY' 41 appropriations act, but that the authority was limited 

to the purposes of the appropriation, i.e., "relief" of the 

Catawbas. 
491 

32 

federal protection under the Non intercourse Act may exist 

even in the absence of any formal or recognized relationship between a Tribe and the United States: 

the 'trust relationship' we affirm has as its source 

the Nonintercourse Act, meaning that the trust relationship pertains to land transactions which are or 

may be covered by the Act, and is rooted in rights 

and duties encompassed or created by the Act. Congress or the executive may at a later time recognize 

the Tribe for other purposes within their powers, 

creating a broader set of federal responsibilities ... 

In this case, the federal protection pertaining to the 

1840 land transaction was intentionally left outside the 

scope of limited duties undertaken in 1943. In 1959, although Congress certainly could have terminated federal 

protection of the 1763 Treaty claim, it did not do so. Instead, in furtherance of the current policy of requiring 

informed tribal consent, it enacted limited legislation, tribal support of which had been expressly conditioned upon 

leaving the "status" of the Tribe's Treaty claims unaffected. Because it cannot be argued that extinguishment 

of federal protection under the Treaties, Constitution, and 

federal statutory and common law would not affect the 

''status" of the claim, petitioner's broad interpretation of 

the effects of ~ 5 of the 1959 Act is precluded. 

The net effect of the 1959 Act was simply to return 

the Catawba Tribe to its pre-1943 status-a "state" Tribe 

on a state reservntion, ineligible for federal Indian services and subject to state law for most purposes; but not 

with regard to its claim to its federally-protected Treaty 

lands. 

2. Even If The 1959 Act Removed Statutory Rights, 

It Did Not Remove Federal Protection Under 

Treaties And The Constitution. 

Petitioners argue that the only source of protection 

for the 1763 Treaty lands is the Nonintercourse Act, claiming that the Tribe acquired pursuant to its treaties "no 

right to own property or to enforce claims under different 

laws than non-Indians." Petitioners argue that Menominee 
492 

33 

is therefore inapplicable here because no treaty right is 

involved in this case. Pet. Br. at 43 and n. 125. 

However, the issue here, as it was in Menomin ee, is 

whether~ 5's language subjected federally-protected treaty 

rights to the operation of state law. Here, as in Menorninee, the property right finds its source in a treaty with 

the national sovereign. The Cata\\~ba Tribe, like the Menominees, bargained for and recei\'ed the protection of 

the sovereign for its resen ation land base. 'While the 

Menominee treaty did not specifically include the right 

to hunt and fish, the Court applied the canon of construe~ 

tion requiring ambiguous expressions to be construed as 

the Indians would have understood them, and held that the 

Treaty language confirming their reservation "for a 

home, to be held as Indian lands are held" included the 

right to hunt and fish, Menominee at 405~406. That canon 

is fully applicable here. 

Applicdion of state law to the Catawba r:L'reaty land 

would ns sur l~: extinguish treaty rights as would the appli cation of sta te law to the Menominees' treaty rights. 

\\'hat the British offered and what the Catawbas thought 

they had received in exchange for cession of most of their 

ancestral lands, was so\Tereign protection of the Tribe's 

right to umnolested occupancy of its r etained lands. rrhe 

minutes of the 1763 Treat)~ negotiations ("our King and 

Father holds out his arms to ... protect you ... and yon 

rna:~ be assured of his confirming to you all your just claims 

to your lands") 25 ; the terms of the Treaty itself (Crown's 

agents ' ' promise . . . that the Catawbas shall not in any 

r espect be mol ested ... ") 26 ; and the subsequent protecti '.'e nchons of the crown (South Carolina cannot lease 

Catawba lands ' ' without a Manifest violation of His Majesty's Onh'rs . . . ") 27 ; demo11stratc bPyoJtd doubt tha t olle 

of the most important guarantees for which the Catawba 

rl'ribe bargained in 1760 and 1763 wa s the promise of sovzscolonial Records of North Carolina, Vol. 2, 198 (1890) 

(J.A. 30). 

26fd. at 201-202 (J.A. 35). 

27Great Britain, Public Records, Colonial Office, Class 5, 

Vol. 74, pp. 85-87 (R. Vol. VI. Ex. 7); seen. 3, supra. 
493 

34 

ereign protection.28 The United States succeeded to the 

Crown's protective obligations under the 1763 rrreaty. 29 

The application of state law would thus result in abrogation of an express treaty right, i. e., the complete extinguishment of sovereign protection of the Catawbas' lands. 

This in turn would have the direct result of confirming 

non-Indians in the possession of tribal lands-the very 

evil from which the sovereign had promised to protect the 

Tribe in the first instance. 

The guarantees of the 1760 and 1763 treaties, that the 

Catawbas would be qu! etly settled on their lands free from 

white incursion, provide an independent source of continuinr federal protection for the 1763 Treaty lands that 

is separate and distinct from the Non intercourse Act. See 

Oneida I, supra at GG7. In addition, they provide an independent basis for invalidating state action inconsistent 

with the supreme law of the land. Washington v. Fishing 

Vessel Assoc., 443 U.S. 658 (1979); Menominee l'ribe, supra; Missouri v . Holland, 252 U.S. 416 (1920). 

Furthermore, the restraint on alienation is a necessary incident of Indian title. Johnson v . M'lntosh, 21 U.S. 

(8 ·wheat.) 543, 576, 591, G03 (1823). rrhe exclusive authority of the United States to extinguish Tndian title is 

founded in the Constitution itself. U.S. Const., art. I, ~ 8, 

cl. 3. First under Great Britain, and later the United 

States, Indian tribes have always been disabled from alienating their lands absent the consent of the general government. This fundamental principle antedates the statutory 

restraints found in the K on intercourse Act. Thus, the 

28The Catawba Tribe did not acquire its lands in the 1760 

and 1763 Treaties; it already had them. What the Tribe acquired was sovereign protection: it reserved the 15-mile-square 

tract and relinquished its claims to a vastly larger portion of its 

aboriginal territory. Thus, with regard to the Treaty lands, "the 

treaty was not a grant of rights to the Indians, but a grant of 

rights from them-a reservation of those not granted." United 

States v. Winans, 198 U.S. 371, 381 (1905). In return for its 

cession of lands, the Tribe received promises of protection by 

the Crown on those lands which it reserved. 

29United States v. Title Ins. & Trust Co., 265 U.S. ;472, 484 

(1924); Mitchel v. United States, 35 U.S. (9. Pet.) 711, 745, 747-

48 (1835). . . 
494 

35 

Constitution also provides an independent basis for invalidating the 1840 state treaty and protecting the Tribe's 

Treaty lands. Oneida Indian Nation v. Co1mty of Oneida, 

414 U.S. 661, 667-68. 670 (1974) (fact that fee title to Indian lands in original 13 states lay in the states "did not 

alter the doctrine that federal law, treaties and statutes 

protected Indian occupancy") (emphasis added) ; Johnson 

v. M'Intosh, 21 U.S. (8 Wheat.) 543, 604 (1823) (invalidating pre-Nonintercourse Act land grants by tribe " ·ithout consent of general government) ;

30 see F. Cohen, Handbook of Federal Indian Law '270, n. 2 (1982 ed.). 

Thus, the central question in this case, as in M enorninee, is whether treaty property rights may lose their federally-protected status solely by operation of a general 

section intended only to lift active federal supervision. 

Thus, even if the language of ~ 5 is sufficient to lift federal statutory protections, § 5 may not operate to extinguish the protections found in the 1760 and 1763 Treaties 

and the Constitution. Use of the word "statutes" in § 5 

of the 1959 Act "is potent evidence that no trea t y was in 

mind." Menomin ee, supra at 412 (emphasis in original). 

D. State law May Not Be Applied To Determine Rights 

In Undistributed Tribal Property. 

The overall scheme of the Catawba Division of Assets 

Act, as ·well ns every other act of Congress terminating 

federal snper•·ision o\·er tribal land, prm·ides for the termination of federal protection and trust duties only for 

those tribal a ssets that are included within the scope of 

the :· ct, i.e., those assets from which federal restrictions 

are remond and which are distributed under the . \ct. vVe 

are aware of no instance in the history of federal Indian 

legislation, and petitioners han pointed to none, where 

Congress, in dealing with tribal trust property, has removed federal protections and applied state law without 

specifying the affected property and giving precise and 

careful instructions directing the Secretary of the In30See Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559-60 

(1832); United States v. Santa Fe Pac. R.R. Co., 314 U.S. 339, 

345-46 (1941). 
495 

36 

terior in the method and manner of division and distribution of the property. See, e.g., 25 U.S.C. ~ 564d, e, & p. 

This Court has long relied on the strong congressional 

policy against the application of state law to determine 

tribal rights in restricted property,31 and has applied without exception the rule that state law defenses may not be 

invoked to overrule federal law and defeat a claim of tribal 

title. 

Each of the cases upon which petitioners rely for the 

proposition that all federal protection was extinguished 

by the 1959 Act involved the question whether federal protection or trust duties continue toward former tribal property after the express removal of federal restrictions from 

that property and its actual distribution to individual tribal 

members.

32 Likewise, each of the cases cited for the 

proposition that state statutes of limitations apply to the 

1840 taking claim after 1959 involve the application of state 

law to -allotted individual Indian lands that were expressly 

the subject of the treaty or legtslation at issue, i.e., the 

lands at issue were the same lands from which federal r estrictions had been removed.33 Because these cases deal 

315ee County of Oneida v. Oneida Indian Nation, 105 S.Ct. 

1245, 1255 and n. 13 (1985) (Oneida //); Board of County Commissioners v. United States, 308 U.S. 343, 350-51 (1939); United 

States v. Minnesota, 270 U.S. 181, 196 (1926); Ewert v. Bluejacket, 259 U.S. 129, 137-38 (1922). 

32Affiliated Ute C:::itizens of Utah v. U.S., 406 U.S. 128 (1972), 

involved the issue of continuing federal supervision over individual Indian property (stock shares) that had been distributed pursuant to the Ute Termination Act, 25 U.S.C. § 677. The 

property at issue was not tribal, and federal restrictions had 

been removed. /d., 406 U.S. at 150. Significantly, the Affiliated 

Ute Court observed, at 139, that § 677v "of course did not purport to terminate the trust status of the undivided assets", 

(citing Menominee). Taylor v. Hearne, 637 F.2d 689 (9th Cir.), 

cert. denied, 454 U.S. 851 (1981), likewise involved the distributed property of an individual Indian. United States v. 

Heath, 509 F.2d 16 (9th Cir. 1974), involved no property; rather, it dealt with the post-termination status of an individual 

Indian for purposes of criminal prosecution. 

335ee Schrimpscher v. Stockton, 183 U.S. 290 (1902); Dickson v. Luck Land Co., 242 U.S. 371 (1917); Dillon v. Antler Land 

(Continued on next page) 
496 

37 

only with the allotted lands of individual Indians, they 

have no relevance to a determination of rights in undistributed tribal property.34 

Congress neither removed federal restrictions from 

the 1763 Treaty lands nor provided for their distribution. 

They thus retain their status as federally-protected tribal 

lands to which state statutes of limitations do not apply. 

(Continued from previous page) 

Co., 507 F.2d 940 (9th Cir. 1974), cert. denied, 421 U.S. 992 

(1975); Dennison v. Topeka Chambers Indus. Dev. Corp., 724 

F.2d 869 (1Oth Cir. 1984). The discussion in Bryan v. Itasca 

County, 426 U.S. 373, 389-90 (1976), relied on by petitioners 

for the proposition that termination acts subject Indians to the 

full sweep of state law (Pet. Br. at 20), states no more than the 

fundamental proposition that a termination act subjects individual "tribal members" and their "distributed property" to 

state law. In this case, as in Schrimpscher and Dillon, both the 

Catawba Tribe and its members became subject to state law 

with respect to the "distributed property," i.e., the 1943 Reservation from which federal restrictions were removed. Likewise, 

the federal responsibility to hold title and provide services to 

those distributed lands was ended. But for the 140,000 acres 

of undistributed tribal Treaty lands that remained wholly outside the scope of the 1959 Act, federal restrictions continued 

unaffected. 

34Lands that have been allotted to individuals are destined 

eventually to become unrestricted private property, and they 

tak.e on some of the characteristics of state law prior to the final 

lifting of federal restrictions. Thus, the right of possession of a 

restricted allotment (absent an allegation of jurisdiction under 

25 U.S.C. § 345), is a matter for state courts. Taylor v. Anderson, 234 U.S. 74 (1914). In 1834, Congress removed the lands 

of individual Indians from Nonintercourse Act coverage. Jones 

v. Meehan, 175 U.S. 1 at 12-13 (1899). The question of tribal 

occupancy, on the other hand, is exclusively federal in nature. 

Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 667-

670 (1974) (Oneida /): The court in Oneida I explained this 

important distinction: 

In Taylor [v. Anderson], the plaintiffs were individual 

Indians, not an Indian Tribe; and the suit concerned lands 

allocated to individual Indians, not tribal rights to lands 

.... Individual patents had been issued with only the right 

to alienation being restricted for a period of time ... Once 

patent issues, the incidents of ownership are, for the most 

part, matters of local property law .... " /d. at 676 (citations omitted). 
497 

38 

E. The Tribe's Treaty Claim May Not Be Extinguished Or 

Limited Absent A Plain And Unambiguous Statement 

Of Congressional Intent And Ambiguities Must Be 

Resolved In The Tribe's Favor. 

1. The 1959 Act Is Ambiguous: It Does Not Clearly 

Apply State Law To The Tribe; Rather, In Light Of 

The Legislative History And Surrounding Circumstances, It Applies State Law To Only Individual 

Tribal Members. 

'In addition to dismissing as irrelevant the Act's legislative historv and surrounding circumstances, petitioners' reliance on the isolfl.ted wording of ~ 5 is inappropriate because that section, standing alone, is ambiguous. A 

careful reading of f) reveals that it is unclear whether, 

npon the Act's effedive date. (1) state law shall thereafter 

applv to both the Tribe and its members or simply to the 

individual members of the Tribe, and (2) whether statutes 

of the Fnited RtRtes that affect Indi,ns because of their 

status as Tndians were T'enclered inanplicablP to both the 

Tribe ancl its members or onl~v to the individual members 

of the 'rrih0. Rf'cans0 tht> right at iss1l e here is a tribal 

right, and assuming nr_qnendo that ~ fi could apply to lands 

from which fecle1·al resh~ctions '''ere not w..;pressly r emoved. the distinction th"t Congress drew between Indians 

as individuals anil Tndian tribes is an important one. 

This point. can best be understoorl by reference to the 

last sentence in~ !1. providing that "fnlothing in this subchapter. hm'·1wer. shall affect the status of such persons 

as citizem; of the United Stf' tes." (Emphasis ndded) . This 

sentence plainly refers to individuals, its purposl' being 

to presen ·e the citi"enship status of individual Indi:ms. 

See 8 U.S.O. ~ 14-01 (b). While this is a standard provision 

that was contained in each termination act, the other te rmination acts accompliRh the same purpose using slightlY 

different. language-Dnd that difference is significant here. 

Fjach of the other terrnin~tion nets. with the exception of 

one~ provides that the citizenship status of the "members 

of the tribe" shall be unaffected. See 25 U.S.C. ~~ 564q (11) : 

703 (b) : 727; 757 (b) ; 80R (b) : 82B (b); 84-8(b) ; 899. In contrast, § 5 of the 1959 Act provides that the citizenship status of" such persons" shall be unaffected. The words "such 

persons" must nccessarilv have reference to individual In-
498 

39 

dians in an earlier sentence. The final clause of the previous sentence in ~ 5 provides that ''the laws of the several 

states shall apply to them in the same manner as they apply to other persons or citizens within their jurisdiction." 

The conclusion that "them" refers to individual Indians and that Congress thus applied state law only to individual Catawba Indians is strengthened by a comparison of the similar provisions of other termination acts. In 

each of the other termination acts that affected both tribes 

and individu[lls, 35 Congress explicitly provided that state 

law would thereafter apply to both the "tribe and its members." See 25 U.S.C. ~§ 564q (a); 703(a); 726; 757(a); 

803(a); 823(a); 848(a); 899. In contrast, the application 

of state law to "them" in the 1959 Catawba Act is identical 

to the state law provision in its immediate predecessor, 

the 1~15 8 California Rancheria Act, 72 Stat. 619, § 10(b). 

There, § lO(b) in its entirety dealt only with the removal 

of federal supervision oYer individual Indians. S ee n. 35, 

supra. 

Moreover, the clause in § 5 rendering inapplicable statutes that affect Indians because of their status as Indians 

is also identical to that contained in § lO(b) of the California R.ancheria Act, which affected only individuals. In 

fact, in eight termination acts, Congress provided that 

such statutes would be inapplicable only "to the members 

of the tribe." 23 U.S.C. §§ 564q (a); 677v; 703(a); 757 (a); 

803(a); 823(a) ; 848(a); 899. In two termination acts, Congress provided that statutes that affect Indians because 

of their Indian status would be inapplicable both to the 

tribes and the individual members. 25 U.S.C. §~ 726, 980. 

35Two termination acts were directed primarily at individual Indians, not Indian tribes. The Mixed-Blood Ute Termination Act, 25 U.S.C. § 677, terminated certain tribal members 

but left the status of the Ute Tribe and its full-blood members 

unaffected. The California Rancheria Act, 72 Stat. 619, likewise 

did not deal with tribal assets. See § 10(b) and S. Rep. No. 

1874, 85th Cong., 2d Sess. 3 (1958) (Membership rolls not prepared because "groups are not well-defined," and " lands were 

for the most part acquired ... by the United States for Indians 

in California, generally, rather than for a specific group ... " 

and assets distributed according to plans developed or approved by "administratively selected users of the land."). 
499 

40 

;Thus, Congress plainly distinguished between tribes 

and individuals when it terminated federal supenision. 

Section 5 of the 1959 Catawba Act is patterned most closely after§ lO(b) of the 1958 California Rancheria Act, which 

by its terms affected individuals only. In 19fi9, when Congress sought to broaden the scope of the provision to include the Catawba Tribe among those no longer entitled 

to special Indian services, it expressly so provided in the 

first clause, but it left the scope of coverage of the remaining clauses unchanged, using the exact wording from the 

California Rancheria Act. 

In 1962, when Congress intended to further broaden 

the scope of the section and ensure that the Ponca Tribe, 

as well as its members, would be among those to whom Indian statutes would no longer be applicable and to whom 

state law would appl:-. it specifically inserted the words 

"or Indian Tribe" after the word "Indians." :25 U.S.C. 

§ 980. See Bryan r. Itasca County, 426 U.S. ~7~. 386 (1976) 

("we previously have construed the effect of legislation 

affecting reservation Indians in light of 'intervening' legislative enactments. Moe v. Salish and Kootenai Tribes, 

4:25 U.S., at 472-475 ... "). 

Finally, because the 19'62 Ponca Act had rendered 

state law applicable to both the Tribe and its members, 

it was necessary in the next and final sentence of that Act 

to preserve the citizenship status of ''any Indian," rather 

than "such persons," as had been done in the California 

and Catawba 1\cts. 

Thus, petitioners' argument that § 5 is clear depends 

not only upon reading § 5 without reference to those sections of the act that define the lands from which restrictions are to be removed, see Section I.A., supra, but also 

depends upon reading § 5 as though the final sentence regarding citizenship status were contained elsewhere in the 

Act or did not exist at all. 

The Court of Appeals was correct in considering the 

overall purpose of the Act as demonstrated by its legislative history and surrounding circumstances and refusing to impute to Congress an intent to apply state law to 

the tribal Treaty claim. ""[1he Court of Appeals noted that 
500 

41 

Congress withdrew the Nonintercourse Act's protection of 

individual Indians' lands in 18~4, Jones v. Jl;J eehan, 175 

U.S. 1, 12-13 (1899), and correctly held that, in terms of 

the type of lands under its protection, the Nonintercourse 

,\ct was a statute that affected tribes rather than individual Indians (Pet. App. 20a-21a). 

The conclusion that the Konintercourse Act is not a 

statute that "affect[s] Indians because of their status as 

Indians"-as Congress used that phrase in the Catawba 

Act-is stre11gthened by the fact that in eight termination 

acts Congress made such statutes inapplicable to only 

"members of the tribe." :!;) U.S.C. ~~ 364q (a); 67/Y: 

70~(a); 757(a); 803(a); 823(a); 848(a) ; 899. Thi~ ; Comt ha s 

held in Menominee Tribe, supm, that language similar to 

~~ 5's is limited to withdrawal of f ederal super':;sion. The 

type of federal supervision Congress had in mind. as demonstrated by the eight acts cited aboYe, \\·as eligibilit~· for 

services, active guardianship supervision of individual Indians' affairs, and active management of tribal real property. The protections and r estrictions of the Non intercourse Act hmvever, do not fall within the class of federal 

supervisory matters intended by Congress to be addressed 

by ~ 5. Congress addressed the policies and purposes of 

the Nonintercourse ,\ct in other sections of the 1959 Act. 

Thus, protection of the Indians' right>; in their lands 

that were subject to the 1959 .\ct was accomplished by § J 

of the Act, pro,·iding for appr~ al :md equal distribution 

of assets held in trust. Protection of the governmental interest of the United States in maintaining exclusive control over tribal land transfers wns accomplished by ~ 4's 

specific lifting of federal restrictions. 1'hns, as Congr<:>ss 

used the phrase in § 5 of the 1959 Act, the Nonintercourse 

Act was not a statute that affected Indians because of their 

status as Indians. 

2. The Canons Of Construction Applicable To Indian 

Laws Preclude Indirect Extinguishment Of Treaty 

Rights And Require That Ambiguities Be Resolved 

In The Tribe's Favor. 

The Court of Appeals was likewise correct in applying the canons of construction to the 1959 Act. This Court 
501 

42 

has consistently reaffirmed the cardinal principle that 

"congressional intent to extinguish Indian title must be 

'plain and unambiguous.'" Oneida II, supra, 105 S.Ct. at 

1258. quoting United States 1'. Santa Fe Par.ific R. Co., 314 

U.S. 339.346 (1941 ). Doubtful or ambiguous expressions in 

statutes ratifying agreements with the Indians are not to be 

construed to their prejudice; rather, they are to be resolved 

liberally in the Indians' favor, as they would have understood. Antoine v. JV ashington, 420 P.S. 194, 199-200 (1975). 

In Menominee Tribe v. United S tates, 391 U.S. 404 (1968), 

the Court, fa ced with a similar situation, refused to find 

an abrogation of federally-protected treaty rights through 

the indirect method of a termination act's general lifting 

of federal supervision. 

'l'he heneral assimilationist policy pronouncements tlmt 

attendt>d the enactment of all termination legislatiou ha,·e 

uever been relircl on by this Court to .iustii\ a11 iil<l in•et, 

backhanded extinguishment of Indian treaty rights. Menominee Tribe, supra; see Bryan v . Itasca County, 426 U.S. 

373 ( 1976). As the Court noted in Bryan, "courts 'are not 

obliged in ambiguous instances to strain to implement 

[all assilllilationist] policy Ccmgress has 11ow r e:iected ... '" 

J.-!. at 388, n. 14.36 

These principles are fully applicable here. The 1959 

Act doeR not mention the 1/G;~ Treaty claim. \Vith provision~ much Jess clear than even the -:\[enominee Act regarding appliC':lbility of state law, the 19;)!) Catawba Act 

remoYcs ft>der nl restrictions from only a 3,4il4-acrc tract 

of fedcrall~·- held trust lnnd, leaving the 17G3 Treat~ lands, 

36This is particularl y so where, as here, the Act is somewhat 

removed both in time and federal policy from the fervent assimilationist policy announced in House Concurrent Resolution 

No. 1 OR. As we have noted, the 1959 Act was passed near the 

end of the termination era, at a time when federal termination policy had been modified to require informed tribal consent. Moreover, the Catawbas were never "wards of the Federal r.overnment," H.R. Rep. No. 910, supra at 2673 (J.A. 123), 

in the same sense as were the tribal Indians subject to a fullfledged federal trusteeship at whom the termination policy 

was primarily directed. Indeed, the title of the 1959 Act is the 

Catawba Division of Assets Act and neither the word "terminate" nor any of its variants appears in the Catawba Act, as it 

poes in each of the other termination acts. 
502 

43 

like the Menominee Treaty rights, wholly outside the purview of the Act. Removal of federal protection and extinguishment of the Catawbas' Treaty claim can come about 

only through the same ''backhanded" method that this 

Court refused to sanction in Menominee Tribe, i.e., a general lifting of federal supervision resulting in the extinguishment of specific treaty property rights. MoreoYer, 

the glaring ambiguities on the face of the Act would have 

to be resolved against the 'J'ribe. Finally, and most significantly, the assurances upon which the United States 

secured the Tribe's consent would be rendered meaningless. 

II. THE 1959 ACT DID NOT EXTINGUISH THE TRIBE'S STATUS 

AS A TRIBE. 

Petitioners argue in the alternative that ~ 5 of the 

1959 Act extinguished tribal political existence which precludes the Tribe's ability to maintain this action. _\s we 

understand this argument, it concedes that a claim survived the 195D Act hut contend,; that no entity capable of 

enforcing it surviYed. In an;: ennt, it is certain that Congress specifically contemplated the ongoing political existence of the Tribe, intending onl~· to extinguish the Hi ~·far 

federal obligation to pnrticipatc in the joint rehabilitation 

effort under the 1 emonmdum of Unclcrstnndi ng. The 

1959 ,\ ct on its face pro,·ides for the continued e.\istencc 

of the 6~i0-acrc state RcserYation. pro,:ides fo r some 194;) 

Resenation lands to be ,;pt aside for tribal purposes and 

refers to the "tribe" prospecti\·ely, proYiding in ~ 5 that 

the "tribe" and its mem hers " shall" henceforth be ineligible for federal Indian services and in § 6 that the rights 

of the ''tribe" under Routh Carolina law " shall' be mHffected.37 

Even where Congress acted to terminate much lengthier and more expansiYe trust relationships than that in-

\ olved here, such action did not operate to end the C' ist37The Solicitor General agreed with the Court of Appeals' 

ruling that the Tribe has the capacity to bring this suit, but expressed no view about whether the 1959 Act precluded the 

Tribe as a matter of law from establishing that it is an Indian 

Tribe for purposes of the Trade and Intercourse Act. He concluded instead that the Tribe could maintain this suit as a successor-in-interest. U.S. Br. at 8-9, n. 8. 
503 

44 

ence of the affected tribes: rather. what was terminated 

was a relationship between the tribe and the United States. 

See Menominee Tribe v. United States, 388 F.2d 998, 1000 

(Ct. Cl. 1967) ), aff'd 391 U.S. 404 (1968) (Menominee Termination Act ''did not abolish the tribe or itg membership. 

It merely terminated Federal supervision over and responsibility for the pro1:ert~· nnd mer1hers of the 'l'l·ihe.") 

(emphasis in original): Kimball v. Callahan. 590 F.2d 768, 

77:J-6 (9th Cir. ), cert. dr,nied, H2 U.S. 915 (1979) (sovereign authorit~· of Klamath 'l'ribe to r egulate tribal huntiTIP: and fishi11,!.!,' liltaffected hY tvr1ninntion act); S(' e V 

Cohen, Handbook of Federal Indian J-'aw 19, 815 (1982 

ed.) ; see also R. Rep. No. 481, 06th Cong., J st Sess. 13 (use 

of term "federal trust relationship," rather than "federal 

recognition," iu art r0stori11,Q,' t<'rminntf' cl tribt:> " 'Yonld illsure that " ·hat is restored to the tribe ... is the same as 

what was diminished or lost under the 1954 [termination] 

Act.") . 

Petitioners rely heavily on the 1959 Act's revocation 

of the 'T'ribe's constitution in support of their argument. 

'!'he committee r eports on the 1959 Act, however, show that 

Congress understood well that the Tribe's constitution had 

been ndopted rmnmant to the 1\f emorandum of Understanding in order tha t the St.ntr and the RI;\ would have a more 

structured government with which to contract for the delivery of services: 

In the memorandum of understanding the tribe agreed 

to organi r.e to transact community business, and on 

June 30, 1944, an IRA constitution and bylaws were 

approved by the Sec retary of the Interior. 

H.R. Rep. No. 910, supra at 2674 (J.A. 125-126). As the 

Court of Appeals correctly held, § 5's revocation of the 

tribal constitution was part of the overall legislative scheme 

to withdraw the BIA from the 1943 agreement and return 

the State and the Tribe to their pre-1943 status. 

Moreover, becau se tribal powers of self-government 

are not derivative of federal powers, 38 revocation of the 

3BJndian tribes have always been recognized as "distinct, 

independent, political communities," Worcester v. Georgia, 31 

(Continued on next page) 
504 

45 

Tribe's federal constitution cannot be said to extinguish 

the Tribe's political existence. It is axiomatic that tribal 

political existence is in no way dependent upon federal approval or recognition of any particular form of government.39 Indeed, independent political existence was required by the IRA before a tribe would be permitted to 

organize under its provisions, see F. Cohen (1982 ed.), 

supra at 13-15, all(l the C'nt<ndm Trilw ""''·S no exceptio ;; . 

The Catawba tribal constitution revoked by the 1959 

Act was adopted by the 'l'ribe pursuant to § 16 of the IRA. 

Prior to authorizing the Catawba Tribe's IRA election, 

the Solicitor of the Department of the Interior ruled that 

the Catawbas existed politically: 

'l'he fileR are full of evidence which is conclusive that 

a tribal organization hns been continuously maintained 

by these Indians over a long period of time. The Indians have done business as a tribe and the relationship between the tribal organization and its members 

conforms to the usual tribal pattern. There can be no 

doubt that the Catawba Indians now exist as a tribe 

(Continued from previous page) 

U.S. (6 Pet.) 515, 559 (1832), whose sovereign powers may be 

recognized, but are not created, by the federal government. 

Talton v. Mayes, 163 U.S. 376 (1896); United States v. Wheeler, 

435 U.S. 313, 322, 328 (1978); McClanahan v. Arizona Tax 

Comm., 411 U.S. 164, 172-3 (1973); see Powers of Indian Tribes, 

Mem. Sol. Int., 55 J.D. 14, 19, 30 (Oct. 25, 1934). 39Tribal governments have always varied widely in degree 

of structure and organization. See F. Cohen, Handbook of Federal Indian Law 122 (1942 ed.); Montoya v. United States, 180 

U.S. 261, 265 (1901). In 1934 Congress enacted the Indian 

Reorganization Act, 48 Stat. 984, 25 U.S.C. §§ 461-479 ("IRA") 

to encourage tribes to adopt a more formal structure. Mescalero Apache Tribe v. Jones, 411 U.S. 145, 151-2 (1973); see 

F. Cohen, supra (1982 ed.) at 18, n. 107. The Act provided that 

a tribe "may" adopt a constitution and bylaws, by majority vote, 

and also provided for revocation of a constitution upon a majority vote, 2S U.S.C. §§ 476, 478. Under the IRA, the Secretary 

conducted 258 elections in which 181 tribes elected to organize under the Act and 77 tribes, including the largest (Navajo), 

rejected it. See Kerr-McGee Corporation v. Navajo Tribe of 

Indians, 105 S.Ct. 1900, 1902; Comment, Tribal Self-Government and the Indian Reorganization Act of 1934, 70 Mich. L. 

Rev. 955, 972 (1972); see also F. Cohen (1982 ed.), supra at 150. 
505 

46 

and have had a known tribal existence for almost a 

century. 

The Solicitor further ruled that the Catawbas had been a 

federally-recognized tribe since 1848, had continuously "retained their tribal organization ever since .. . " and were 

therefore entitled to vote on an IRA constitution. Questions Of the Catawbas' Identity and Organization As A 

.Tribe .~1nd Right .To Adopt An IRA Constitution, Mem. 

Sol. Int. ( Aprilll, 19-44 ), reprinted in II lnterio1· Opinions 

at 1261 (.T.A. 51-52) . 

It is certain that Catawba tribal political existence 

was not dependent upon or founded in its IRA constitution. 'rhe 'rribe's recognized political existence predated 

its adoption of an IRA constitution by more than 200 years 

(R. Vol. VI, Ex. 1 )-or since 1848 according to the Solicitor-and the r evocation of that document cannot logically 

be said to extinguish an existence not in any way founded 

within it. 'rhe tribal constitution had been adopted to facilitate the 1 !)4:1 rehabili tatiou program, and its revocation 

was simply part of the overall legislative plan to r eturn 

the 1'rihe to its pre-1943 status. 'J'he State has continued to 

hold the 630-ncre resenation acquired in 1842 in trust for 

the Tribe. Op. Atty. Gen. S.C., No. 3988 (March 6, 1975) 

(R. Vol. VI, Rx. 15). 

Ill. EVEN IF STATE LAW WERE TO APPLY, THE TRIBE WOULD 

STILL HAVE SIGNIFICANT CLAIMS. 

Because South Carolina, alone among the state jurisdictions, does not permit tacking of successive periods of 

possession by adverse occupants in order to establish title 

pursuant to its 10-year statute of limitations, S.C. Code 

Ann. § 15-:3-340 (1976), an 18-year delay under South Carolina law would not establish even a presumption of title. 

Indeed, the United States concedes that application of 

state statutes of limitations to the 'l'ribe's claim might not 

immediately resolve the underlying controversy (U.S. Br. 

at 17, 20 ). 

South Carolina law is clear. As the foremost commentator on South Carolina property law has obsened: 

The rule in this state, contrar~' to the view of the overwh<>lming- majority of jurisdictions, is that eYen though 
506 

47 

there be privity by deed or devise between successive 

ad,·erse occupants of land, the possession of such occupants cannot be tacked to make out title by adverse 

possession under the statute of limitations. 

D. J\Ieans, Survey of Propert?l Law, 10 S.C.L.Q. 90 (Fall 

1958). Professor Means' statement is supported by an unbroken line of South Carolina Supreme Court decisions. 

See Adams v. Arfams, ~20 S.C. 131, 66 S.K:Zd 809 (1951); 

!Jaithrock r. Haithc orl>. 1:21 S.fi. 61, 6R, 11:1 S.E. 727, 729 

(1028) (" .\ man cannot tack. in order to mal;:e ten y ears 

.... The 10 years must he 10 years in himself alone, or by 

way of inheritance", rf1wfin[J 11'ith npp1·ovol trial judge's 

jury charge); 7 R. Pmn>ll, The Law of Real Property, 

11 1014[2] at 91-63 984). 

Tn Crot?rrll ;·. H'l1ifnm1 , 22!l S.C. 213, 2:?.0-~1, 0~ S.K 

2d 473. 477 (10:36), the South CarolilL1 Supreme Court 

stated plainlY that the ad,·erse occupant ha s the burden 

of establishing possC>ssion for the C'ntire 10-year statutor~' 

period without tacking: 

Plaintiffs h:n·ing C'sh hlishcd their legal title to the 

pl'<'mis<'R, np1)('llm1t f'R l . . . claim of title by adYerse 

poRsf'RRion rcqn ired proof 0f ndnal. open. notorious, 

hostile C0lJtinn<' HR anrl (":clnsi,·e posRession hY him, or 

h~, mw o1· nwre per~on~ through whom he claimed, for 

the full ~;t;;tntorY period of ten ~·cars, 1cdho~tt tacking 

of possrssi on (' '\l'ept h.'· descPnt caRt. Code Hlf>2, Sections 10-:)421 rnow coclifierl :ts ~ l:l-G7-210], 10-124 

[now cOflified as ~ 15 1-:~40]; ... (citations omitted, 

emph:u~is added). 

See also Grepq 1). Moore, 226 S.C. 366, 371, 85 S.E.2d 270, 

281 ( 1954) (" 'l'he burden of proof of ad verse possession 

is on the pnrty relying thereon .... "). 'l'hus, in order to 

defeat the 'l'rihe'R claim of title, each defendant would be 

required to proYe open, hostile, notorious and continuous 

poRs<'sRion for a 1 0-yea r period.40 

40 ft is also certain that under South Carolina law, those defendants against whom the claim was not barred by the 10-

year statute of limitations could not invoke the equitable defense of laches. 11 laches within the period of the statute of 

limitations is no defense at law." Crotwell v. Whitney, supra, 

229 S.C. at 223, 92 S.E.2d at 478. 
507 

48 

The consistent line of South Carolina Supreme Court 

decisions demonstrates that South Carolina's anti-tacking 

rule and the 10-year statute of limitations are inextricably 

linked: the 10-year limitations period contained in S.C. 

Code Ann. § 15-3-:140 ( 1976) may only be asserted by an 

adverse possessor who has been in possession for at least 

10 years. Crotwell v. Whitney, supra; Note, Effect of Disability of Landowner With Respect to the Acquisition of 

Adverse Rights by :1nothe·r by Statutes of L imitations, 

Presumption of a Orant, and Prescriptire Right in South 

Carolina, 10 S.C.L.Q. 292, 298 ("Winter 1958); see 7 R. 

Po\\·ell, supra, ,-r1012[2] at 91-4 !'"l'he theory upon which 

adverse possession rests is that the adverse posRessor may 

acquire title at such time as an action in ejectment by tho 

record owner would br barred by the statute of limitat. ") lOllS. . 

Petitioners argue, however, that S.C. Code Ann §§ 15-

3-340 (statute of limitations) and 15-67-210 (adverse possession) (197G) set up two different defenses to an action 

to reco ver possession: (1) that th0 plaintiff hns not possessed the land within the pnst ten years, and (2) that. defend;·nt has adversely possessed the land for ten years. 

'l'hey assert that the anti-tacking rule applies only to the 

second, whereas petitioners rely upon the first. Lastl~ , 

petitioners attempt to derive significance from the fact that 

the two stJatutor.v sections appear in different chapters of 

the Code. 

rpetitioners' attempt to sever the relationship between 

these two statutory sections has no foundation in law. At 

the time of enactment, the predecessors of the present sections appeared as sections 101 and 104 of the same A ct. 

See 14 Stats. of S.C. 444 (1870). It is apparent from the 

text of the two sections that § 15-67-210 refines and modifies § 15-3-340: 

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

recove1:· of land. 

No action for the recovery of real property or for 

the recovery of the possession thereof shall be maintained unless it appenr that the plaintiff, his ancestor, 

predecessor or grantor, was seized or possessed of the 
508 

49 

premises in question "·ithin ten years before the commencement of such actio11. 

~ 15-G7-210. Presumption of possession; "·hen occupation deemed nnder lcg-nl title. 

In en~ry action for the reco\'er~· of renl property 

or the possrssion thereof the pC'rson establishing a 

legal title to the premis0s shall he prcsum0d to have 

been possesf;cd thereof within the time required by 

law. 'l'he occupation of such prc·mises by an? other 

pprson shall he clcen1Nl to have lwcn under and in subordination to tlw h'gnl title unless it appear that such 

premises h:we hN'n lwld and possesserl adversely to 

snch l0gn l title for ten ~-ears before the commencement 

of s uch action. 

The case law since enactment of the 1870 Act has uniformly recognized the integral relation between thes0 two 

proYisions. Tndeed, had petitioners continued their quote 

from Haithcnrk v. Haith cock. SUJ>ra, Pet. Br. at 27, they 

woulrl haYe found, immcdiatc•l\· after the assertion that 

possessors may rlefeat the ow11er's title b~r showing that he 

has not been in possession for ten years preceding the action, the explanation that Routh Carolinn law presumes 

possession in anyone who shows legal title: 

I\' ow, what is possession of lnnrl ? T charge von 

that. undPr thP law, if 0110 shows paper title--a deerl or 

will or kgn1 pnprr title of nnv kin<l. to lancl--then the 

law pr<' '-> lllYl('S that he wns in possessior1 of thnt lnnrl, 

and that his title gi'i'C's him the poRsession: that is, the 

possession follows the title .... 

In other words, gentlemen, the law presumes, 

where a man sho·ws title, he need not be on the land, 

he need not he i11 10 miles of the land, if he shmYs perfect legPl title, then the law says the possession follows thP titk, fllld he is deemed to be in possession if 

he shows a good l<'p;al titl0 to tho lnn(l, altl!On!dl lH' lllay 

never h l'\0 seen the land· :1nrl that presumption holds 

unk~;s, and until, some one else goes on the land and 

occupies alHl holds it adYorHel.\' to that right for 10 

consecutive years. 

Ro T sa~ · the establishment of a perfect legal title 

to a tract of land is a prcRnmption that the person is in 

possession, unless and until someone else, by the pre-
509 

50 

pondrr;m('<' of thr t<'siillloll.'·· ho,· ; that he h<'R hC'rn 

itt aetu >1 <t<h('n;<• JHls:.; <•ssimt of that latHl for 10 eonS('<'ll t i \'(' .\' ('(] IS . 

J!aitltcock, S111Jra, 1 :!:l S.O. at Wl-70. 11 G 8.1•:. :1t 7~0 :-10. Similar!.', in Lo cc r. '1'11rn c r. 71 S.C. :!:2 . :r:o. :Jl S.K I 01, 1 O+ 

( Ul04), tltc· Sollt"lt C:troli! l:t f::: tqH·r·ttl\' C(I J! rt dat<·d: " I i' fl ;r 

plai11tiff lHI<l thr kg:tl jitle, ll<' ''"" pn•stnrH·d to he pos-

::;esse<l of thc•];tllll \\ifhill flJl• J() .n':'l'S, ;nH] it \\HS ll0CC'SSIH.V 

io rC'hnt this prC';;mnpti<•lt h.\· proof of contimttillS :t<l' <·i·se 

})OSSC'RRiOlt of S Olll(' otlJN jl<'l' S OII for 10 ·(' ;tl' '', r r ifin/] (} :rrFCft r. ll 'f'·iJIIwrlf . .,W S.C.~ . :21 i ~.! :. :l ( ~lli) J. Tit<"'<' <·::s<·:-< 

ntal;e f'l<' ' '" that thn<' an• not t '' o. IHJI· OltP, st:ttntorr <l<' 

fpm;c. and that adw~l'SC' po.ss('ssiotl ml<l th<• statute of linljtntions :11'<' h•·o lt:tfiH's for tit<' :·:nn•r lq.!,·:tl rule. 

Priitiol ters' as:-: crtinn tltat ti t<' Trii H· ":ultlri th·<ll.\' did 

11ot poss('ss tltc• lnn<l : t nll .' ' lillie rlnring tl10 1C'll y0ars hrfo :·e 

the~· c·mnnH'lH'<'<l I his ndion'' (Pd. Hr. at :~~q is 1 h<•rc•fore 

flatly iJll·orrrd. rl' lw Trill('\ pnf'<·<•.t 1 i1le is pn·sunt<'<l for 

pni'post's of this uwtimt :•1Hl I~!01'PfOi , llltfl<'r Ronth C'aro-

]ilta la,.·. 1hr Trihr is prrRmllr<l io IH' in ::-; (' s<\ ion nnrlr r 

{' I :i-:1 -:l-+0 nnti1 solll<'OJH' ('] ::;(' ]lrm·rs "aehwl :t<hC'n;<• pos-

:-;('s;;ion of 1h:t11a1Hl fo!· 10 eons<'culi\'(' y<'nrs." Jfaitlt r· or·l.-, 

Sl lj))'(l , 1 :!:l f..i.( '. :d 70. 1 Fi S.K :d 7:l0. 

---------0--------

CONCI.URJON 

Petiti0lwrs rea1l far too 1nnch into the lfl:J~) .\ et. . It. 

was l<•g·isl.:!inll of li mit e<l S<'OJH', <l<•Rig·n rd onl:: to implcmellt a clem· nnd<·rs(;m(lillg· 1H•1 YC<~ll tlH' 'l'rilH' :m(1 the 

ff'clrra! gw·<'l'lllll<'Jtt tlwt c<'rta illlnJHls \\'Olll<l be diRt.rilmtC'd: 

hut o11lv on tll(' ('OlHlition that this ('!:tim h<~ nnnff'Pe.tc•d. 

'. hsrnt. a e1<'nr e '-:prC';;sion of congr0ssionnl intent to ahrognte, the as:mr:tll<'<'S upon \\'hieh trih:d ronsc nt was ohtainecl :HI' f'o niTollin.!~ . C:ongT<'SS prof<•s:<;e<l only to llC' acting consist0nt1 .' \"ith hihnl ronsenl and nf'ithcr the Ad 

nor its hiPtory m·en snggcRtR nn inicnt to extingn!;;h or 

mod if,- this rlnim. ongrcs:<; in 1 !JG0 dicl not. int.cn<1 to depri\'0 th<' rl'rihc of its opporhmit.y to rc oln~ the clnin1 it 

hnd so TH rsi tf'n(']~r songlJt to protl'ct .. 

rl'h0 jnclgnwnl: rmd opinio11 of the Court of A pp<•als 

should he affirmed. 
510 

51 

Respectfully submitted, 

Don B. Miller 

Counsel of Record 

NATIVE AMERICAN RIGHTS FuND 

1506 Broadway 

Boulder, CO 80302 

(303) 447-8760 

Jean H. Toal 

BELSEH, BAKEH, BARWICK, RAVENEL, 

ToAL & BENm~n 

P.O. Box 11848 

1213 Lady Street, Suite 303 

Columbia, SC 29211 

(803) 799-9091 

Robert M. Jones 

123 Workman Street 

Rock Hill, SC 29730 

(803) 324-2988 

Mike Jolly 

Richard Steele 

113 West Main Street 

Union, SC 29379 

(803) 427-8471 
511 

U.S. SUPREME COURT REPORTS 

(4j6 us 498] 

SOUTH CAROLINA et al., Petitioners 

v 

CATAWBA INDIAN TRIBE, INC. 

476 US 498,90 LEd 2d 490, 106 S Ct 2039 

[No. 84-782] 

Argued December 12, 1985. Decided June 2, 1986. 

90 LEd 2d 

Decision: Catawba Indian land claim held subject to state statute of 

limitations pursuant to Catawba Indian Tribe Division of Assets Act (25 

uses §§ 931-938). 

SUMMARY 

.In 1959, Congress passed the Catawba Indian Tribe Division of Assets Act 

(25 USes §§ 931-938). The Act generally authorized the disposal of the tribal 

assets and terminated federal responsibility for the tribe and its members, 

while § 5 of the Act (25 USCS § 935) provided that state laws would apply to 

members of the tribe in the same manner that such laws applied to nonIndians. In 1980 the tribe filed an action for possession of a 225-square-mile 

South Carolina tract, and for trespass damages, for the period of the tribe's 

dispossession, in the United States District Court for the District of South 

Carolina. The tribe cited a 1763 treaty with Great Britain, and argued that 

an 1840 treaty with the state of South Carolina, purporting to convey the 

tract to the state, was void. The District Court, however, granted a motion 

for summary judgment against the tribe. On appeal, the United States 

Court of Appeals for the Fourth Circuit reversed. In a panel decision (718 

F2d 1291), later adopted en bane (740 F2d 305), the Court of Appeals held 

that the Act did not (1) ratify the 1840 treaty, (2) extinguish the tribe's 

existence, (3) terminate the trust relationship of the tribe with the Federal 

Government arising out of the Indian Nonintercourse Act of 1970 (25 USes 

§ 177), or (4) make the state statute of limitations applicable to the tribe's 

land claim. 

On certiorari, the United States Supreme Court reversed and remanded 

the case. In an opinion by Sn:vENS, J., joined by BuRGER, Ch. J., and 

BRENNAN, WHITE, PowELL, and REHNQUtST, JJ., it was held, without reachBriefs of Counsel, p 1104, infra. 

490 
512 

SOUTH CAROLINA v CATAWBA L'\Dl.-\.:-.1 TRIBE 

476 US 498, 90 L Ed 2d 490, 106 S Ct 2039 

ing the merits of the Catawba land claim, that the explicit redefinition of 

the federal relationship reflected in the Catawba Indian Tribe Dh'ision of 

Assets Act required the application of the state statute of limitations to the 

claim. 

BLACKMUN, J., joined by MARSHALL and O'CoNNOR, JJ., dissented, expressing the view that the state statute of limitations was not applicable to the 

Catawba land claim, for Congress in 1959 did not express an unambiguous 

desire to encumber the Catawbas' claim. 

TOTAL CLIENT-SERVICE LIBRARY!l REFERENCES 

41 Am Jur 2d, Indians§§ 23, 40, 54, 56 

19 Federal Procedure, L Ed, Indians §§ 46:71-46:75 

11 Federal Procedural Forms, L Ed, Indians and Indian 

Affairs § 41:56; 15 Federal Procedural Forms, L Ed, Statutes of Limitation, and Other Time Limits § 61:47 

14 Am Jur PI & Pr Forms (Rev), Indians, Form 13; 23 Am Jur 

PI & Pr Forms (Rev), Treaties, Form 3 

4 Am Jur Trials 441, Solving Statutes of Limitations Problems 

2s uses §§ 931-938 

US L Ed Digest, Indians § 33; Limitation of Actions § 182 

Index to Annotations, Indians; Limitation of Actions; Marketable and Clear Title; Property; Quieting Title; Title and 

Ownership; Treaties 

VERALEX"': Cases and annotations referred to herein can be further researched through the VERALEXTW electronic 

retrieval system's two services, Auto-Cite!l and 

SHOWMETM. Use Auto-Cite to check citations for form, 

parallel references, prior and later history, and annotation 

references. Use SHOWME to display the full text of cases 

and annotations. 

ANNOTATION REFERENCE 

Proof and extinguishment of aboriginal title to Indian Lands. 41 ALR 

Fed 425. 

491 
513 

U.S. SUPRE)1E COURT REPORTS 90 LEd 2d 

HEADSOTES 

Classified to U.S. Supreme Court Digest, Lawyers' Edition 

Indians § 33; Limitation of Ac· vices and statutory protections for 

tions § 182 - Catawba land· Indians are no longer applicable to 

claim - application of state the tribe and its members, and (2) 

statute of limitations - fed· that state Jaws apply to the tribe 

eral statute and its members in precisely the 

la-ld. The explicit redefinition of same fashion that such laws apply to 

the federal relationship reflected in others. 

the Catawba Indian Tribe Division 

of Assets Act (25 USes §§ 931-938), 

§ 5 of which (25 uses § 935) termi· 

nates federal services to the tribe 

and provides that state law shall 

apply to members of the tribe in the 

same manner that such laws apply 

to non-Indians, requires the application of the state statute of limitations to a Catawba land claim. 

(Blackmun, Marshall, and O'Connor, 

JJ., dissented from this holding.) 

Appeal § 1692.2 - remand -issue 

not decided 

2a, 2b. The United States Supreme 

Court will remand a case to a Fed· 

eral Court of Appeals, for interpreta· 

tion of a state statute of limitations, 

where (1) the Federal District Court 

held that a land claim was barred by 

the statute, (2) the Court of Appeals' 

construction of a federal law made it 

unnecessary for that court to review 

the District Court's interpretation, 

(3) the Supreme Court has held the 

statute of limitations applicable, and 

(4) the Court of Appeals is in a 

better position than the Supreme 

Court to evaluate such an issue of 

state law. 

Indians § 11 - Catawba Tribe -

statute terminating protec· 

tion 

3. Section 5 of the Catawba Indian 

Tribe Division of Assets Act (25 

uses § 935) establishes two princi· 

pies: (i) that the special federal ser· 

492 

Indians § 13 - statutory construc· 

tion 

4. The canon of construction regarding the resolution of statutory 

ambiguities in favor of Indians does 

not permit either reliance on 

ambiguities that do not exist, or the 

disregard of the clearly expressed 

legislative intent of Congress. 

Courts § 900; States, Territories, 

and Possessions § 46 - state 

statute of limitations - appli· 

cability to federal claims 

5. Federal claims are subject to 

state statutes of limitations unless 

there is a federal statute of limitations or a conflict with federal pol· 

icy. 

Indians § 84 - removal of restraints on alienation 

6. 'Vhen Congress removes re- straints on alienation by Indians, 

state laws are fully applicable to 

subsequent claims, under a fundamental change in federal policy with 

respect to the Indians who are the 

subject of the particular legislation. 

Indians § 11 - tribal termination 

acts 

7. Indian tribal termination acts 

subject members of the terminated 

tribe to the full sweep of state laws 

and state taxation, under a fundamental change in federal policy with 

respect to the Indians who are the 

subject of the particular legislation. 
514 

SOUTH CAROLI~A v CATAWBA 1.:\UL-\.'< lhlbc. 

476 US 498, 90 LEd 2d 490, 106 S Ct 2039 

Indians §§ 11, 33 - section of fed- Statutes § 81 - construction 

eral act preserving Catawba 9a, 9b. It is a canon of construerights - land claim - appli- tion that a statute should be intercability of state statute of lim- preted so as not to render one part 

itations inoperative. 

8. Section 6 of the Catawba Indian 

Tribe Division of Assets Act (25 

uses § 936), providing that nothing 

in the Act affects the rights of the 

tribe under the laws of South Carolina, (1) cannot be read to preserve a 

federal tribal immunity from other" 

wise applicable state law without 

defeating a basic purpose of the Act 

and negating explicit language in § 5 

of the Act (25 USes § 935), and (2) 

does not speak to the explicit redefinition of the federal relationship 

with the Catawbas that is the basis 

for the applicability of a state statute of limitations to a Catawba land 

claim. 

Indians § 33 - Catawba land 

claim - state statute of limitations - assurance prior to 

federal act 

lOa, lOb. There is no contradiction 

between the applicability of a state 

statute of limitations to a Catawba 

Indian land claim, and the federal 

assurance to the tribe, prior to the 

passage of the Catawba Indian Tribe 

Division of Assets Act (25 USes 

§§ 931-938), that the status of any 

state claims would not be affected by 

the Act. (Blackmun, Marshall, and 

O'Connor, JJ., dissented from this 

holding.) 

SYLLABUS BY REPORTER OF DECISIONS 

In 1760 and 1763, respondent Indian Tribe surrendered to Great 

Britain its aboriginal territory in 

return for the right to settle permanently on a 225-square-mile tract of 

land now located in South Carolina. 

In 1840, the Tribe conveyed the 

tract to South Carolina in return for 

the State's establishing a new reservation for the Tribe. In 1959, Congress, pursuant to its changed policies concerning Indian affairs, enacted the Catawba Indian Tribe Division of Assets Act (Catawba Act) 

authorizing a division of Catawba 

tribal assets. Section 5 of that Act 

provided for revocation of the Tribe's 

constitution, rendered inapplicable 

to the Tribe and its members special 

federal statutory protections for Indians, and made state laws applicable to the Tribe and its members in 

the same way that they apply to all 

"other persons or citizens." In 1980, 

the Tribe brought an action in Federal District Court against petition- ers (South Carolina and other claimants to the 225-square-mile tract), 

seeking possession of the tract and 

trespass damages for the period of 

its dispossession on the ground that 

the 1840 conveyance to South Carolina was null and void because the 

United States never consented to it 

as required by the Nonintercourse 

Act to make it effective. The District 

Court granted summary judgment 

for petitioners, in part on the 

ground that the Tribe's claim was 

barred by the South Carolina statute 

of limitations. The Court of Appeals 

reversed, holding that, under its interpretation of the Catawba Act, the 

state statute of limitations did not 

apply. 

Held: The explicit redefinition of 

the relationship between the Federal 

Government and respondent Tribe 

493 
515 

reflected in the Catawba Act's clear 

language require's the. application of 

the state statute of limitations to the 

Tribe's claim. But whether that statute bars the claim should be determined by the Court of Appeals on 

remand. 

7 40 F2d 305, reversed and remanded. 

~U LEd :2d 

Ste\·ens, J., delivered the opinion 

of the Court, in which Burger, C. J., 

and Brennan, White, Powell, and 

Rehnquist, JJ., joined. Blackmun, J., 

filed a dissenting opinion, in which 

Marshall and O'Connor, JJ., joined. 

APPEARA~CES OF COli~SEL 

James D. St. Clair argued the cause for petitioners. 

Don Brantley Miller argued the cause for respondent. 

Briefs of Counsel, p 1104, infra. 

OPI:SION OF THE COURT 

(476 us 499) 

Justice Stevens delivered the 

opinion of the Court. 

[1a, 2a] At issue in this litigation 

is the right to possession of a "Tract 

of Land of Fifteen Miles square" 

described in a 1763 treaty between 

the King of England and the Catawba Head Men and Warriors.• The 

tract, comprising 144,000 acres and 

225 square miles, is located near the 

northern border of South Carolina; 

some 27,000 persons now claim title 

to different parcels within the tract. 

The specific question presented to us is whether the State's s_tat.u.te of hm- ·mnwns applies to the Tribe's claim. 

I. The 1763 Treaty of Fort Augusta was 

entered into by the Catawbas and British and 

colonial officials, and pro,·ides, in relevant 

part: 

"And We the Catawba Head !11en and Warriors in Confirmation of an Agreement herete>-

fore 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 ~n already begun and the respec· 

tive Governors and Superintendent on their 

Parts promise and engage that the aforesaid 

survey shall be compleated and that the Ca· 

t.awbas 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." XI Colonial Records of :O.:orth Carolina 201-202 117631, reprinted in App 35. 

494 

The answer depends on an interpretation of a statute enacted by Congress in 1959 to authorize a division 

of Catawba tribal assets. See 25 USC 

§§ 931-938 [25 uses §§ 931-938]. 

(476 us 500) 

We 

hold that the State's statute applies, 

but we do not reach the question 

whether it bars the Tribe's claim. 

Simply stated, the Tribe2 claims 

that it had undisputed ownership 

and possession of the land before the 

first Nonintercourse Act was passed 

by Congress in 1790;3 that the Nonintercourse Act prohibited any con2. The respondent, Cat.awba Indian Tribe. 

Inc., is a nonprofit corporation organized un· 

der the laws of South Carolina in 1975. Like 

the District Court and the Court of Appeals, 

we assume that the respondent is the successor in interest of the Cat.awba Indian Tribe of 

South Carolina. For convenience, we refer to 

the respondent as the "Tribe" throughout this 

opinion. 

3. See Act of July 22, 1790, ch 33, § 4, 1 

St.at 138. The Act, now codified at 25 USC 

§ 177 [25 uses § 177], st.ates in relevant part: 

"No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto. 

from any Indian nation or tribe of Indians, 

shall be of any validity in law or equity, 

unless the same be made by treaty or convention entered into pursuant to the Constitu· 

tion." 
516 

SOUTH CAROLI:-.iA v CATAWBA I.:-.;DIA:-.i TRlB.t:.. 

476 US 498, 90 LEd 2d 490, 106 S Ct 2039 

veyance of tribal land without the 

consent of the United States; and 

that the United States never gave its 

consent to a conveyance of this land. 

Accordingly, the Tribe's purported 

conveyance to South Carolina in 

1840 is null and void. Among the 

defenses asserted by petitioners• is 

the contention that, even if the 

Tribe's claim was valid before passage and enactment of the Catawba 

Division of Assets Act, § 5 of the Act 

made the state statute of limitations 

applicable to the claim. Because that 

is the only contention that we review, it is not necessary to describe 

much of the historical material in 

the record. 

I 

In 1760 and 1763, the Tribe surrendered to Great Britain its aboriginal territory in what is now North 

and South Carolina in return for the 

right to settle permanently on the 

"Tract of Land of Fifteen Miles 

square" that is now at issue. 

(476 us 501] 

For 

purposes of this summary judgment 

motion, it is not disputed that the 

Tribe retained title to the land when 

the Nonintercourse Acts were 

passed. 

By 1840, the Tribe had leased 

most, if not all, of the land described 

in the 1763 treaty to white settlers. 

In 1840, the Tribe conveyed its interest in the "Tract of Land of Fifteen 

Miles square" to the State of South 

Carolina by entering into the 

"Treaty of Nation Ford." In that 

treaty, the State agreed, in return 

4. The petitioners include the State of 

South Carolina and approximately 76 other 

parties who are named as defendants in the 

complaint; they were sued as representatives 

of a class that wa.s alleged to consist of the 

approximately 27,000 persons who claim an 

interest in the disputed land. 

for the "Tract," to spend $5,000 to 

acquire a new reservation, to pay 

the Tribe $2,500 in advance, and to 

make nine annual payments of $1,-

500 in the ensuing years. In 1842, 

the State purchased a 630-acre tract 

as a new reservation for the Tribe, 

which then apparently had a membership of about 450 persons.5 This 

land is still held in trust for the 

Tribe by South Carolina. 

The Tribe contends that the State 

did not perform its obligations under 

the treaty-it delayed the purchase 

of the new reservation for over 2\l.l 

years; it then spent only $2,000 instead of $5,000 to purchase the new 

land; and it was not actually "new" 

land because it was located within 

the original 144,000-acre tract. Still 

more importantly, as noted, the 

Tribe maintains that this entire 

transaction was void because the 

United States did not consent to the 

conveyance as required by the Nonintercourse Act. 

At various times during the period 

between 1900 and 1943, leaders of 

the Tribe applied to the State for 

citizenship and for a "final settlement of all their claims against the 

State."• Petitioners argue that these 

claims merely sought full performance of the State's obligations under the 1840 treaty, but, for purposes of our decision, we accept the 

Tribe's position that it was then asserting a claim under the Nonintercourse Acts and thus challenging the 

treaty itself. In any 

(476 us 502) 

event, both state 

officials and representatives of the 

5. An 1825 War Department chart indicated 

that the Catawbas totaled 450 persons. 2 

American State Papers 545 (1925!. 

8. See 1920 SC Acts 1700, Joint Res No. 

904, § 1. 

495 
517 

U.S. SUPRD1E COURT REPORTS 90 LEd 2d 

Federal Government took an interest in the plight of the Tribe.' 

In response to this concern, on 

December 14, 1943, the Tribe, the 

State, and the Office of Indian Affairs of the Department of the Interior entered into a Memorandum of 

Understanding which was intended 

to provide relief for the Tribe, but 

which did not require the Tribe to 

release its claims against the State.

8 

Pursuant to that agreement, the 

State purchased 3,434 acres of land 

at a cost of $70,000 and conveyed it 

to the United States to be held in 

trust for the Tribe.• The Federal 

Government agreed to make annual 

contributions of available sums for 

the welfare of the Tribe and to assist 

the Tribe with education, medical 

benefits, and economic development. 

7. In 1930, a Subcommittee of the Senate 

Committee on Indian Affairs held hearings in 

Rock Hill, South Carolina, which is located in 

the 144,000-acre tract. Senator Thomas of 

Oklahoma wrote that the "subcommittee .. . 

found some hundred and seventy-five remnants of this band located on a tract of practically barren rock and gradually starving to 

death." Division of Tribal Assets of Catawba 

Inctian Tribe, Hearings on HR 6128, before 

the Subcommittee on Indian Affairs of the 

House Committee on Interior and Insular 

Affairs, 86th Cong, 1st Sess (unpublished), 

Insert 5, at 3 I:'Yiinutes of State and Federal 

Conference, Oct. 21, 1958) (6 Record Ex 56), 

quoting Feb. 10, 1932, letter, Senator Thomas 

to Commissioner Rhoads. 

8. Preliminary drafts of the Memorandum 

of Understanding contained a provision extinguishing the Tribe's reservation claim 16 Rec· 

ord Ex 491, but that provision was deleted. 

The Solicitor of the Department of the Interior emphasized that the agreement should 

not use "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." United States Department of the 

Interior, Office of the Solicitor, Memorandum 

for the Commissioner of Indian Affairs. ld., 

Ex 50, p 3. 

9. The State also agreed to appropriate at 

least $9,500 annually for three years for the 

496 

For its part, the Tribe agreed to 

conduct its affairs on the basis of the 

Federal Government's recommendations; it thereafter adopted a constitution approved 

[4i6 t:S 503) 

by the Secretary of 

the Interior pursuant to the Indian 

Reorganization Act, 25 USC § 476 

[25 uses§ 476]. 

(1b] In 1953, Congress decided to 

make a basic change in its policies 

concerning Indian affairs. The passage of House Concurrent Resolution 

108 on August 1, 1953,10 marked the 

beginning of the "termination era" 

-a period that continued into the 

mid-1960s, in which the Federal 

Government endeavored to terminate its supervisory responsibilities 

for Indian tribes.n Pursuant to that 

benefit of the Tribe and to extend to Catawbas the rights and privileges of all citizens. 

including admission to public schools. Ibid. 

10. That Resolution declared: ''[I]t is the 

policy of Congress, as rapidly as possible, to 

make the Indians within the territorial limits 

of the United States subject to the same laws 

and entitled to the same privileges and responsibilities as are applicable to other citizens of the United States, to end their status 

as wards of the United States, and to grant 

them all of the rights and prerogatives perta(ning to American citizenship." HR Con Res 

108, 83d Cong, 1st Sess 11953), 67 Stat B132. 

11. According to one compilation, between 

1954 and 1962, Congress passed 12 separate 

"Termination Acts," the 11th of which was 

the Catawba Act. See F. Prucha, The Great 

Father 1048 11984). The termination . policy 

has been criticized by various commentators. 

See, e. g., Cornell. The New Indian Politics, 10 

Wilson Q 113, 121 11986>; F. Prucha, supra, at 

1046-1059; Wilkinson & Biggs, The Evolution 

of the Termination Policy, 5 American Indian 

L Rev 139 (1977); Preloznik & Felsenthal, The 

Menominee Struggle to Maintain Their Tribal 

Assets and Protect Their Treaty Right.s Fol· 

lowing Termination, 51 NDL Rev 53 (1975). 

The ultimate legislative wisdom of the termination policy is, of course, not before the 

Court. 
518 

SOUTH CAROLINA v CATAWBA INDIA~ TRIBE 

476 US 498, 90 LEd 2d 490, 106 S Ct 2039 

policy, the Federal Go.vernment ing assets among the enrolled memidentified the Catawba Tribe as a bers of the Tribe, § 933(0. The Act 

likely candidate for the withdrawal also provides for the revocation of 

of federal services. 12 Moreover, mem- the Tribe's Constitution and the terbers of mination of federal services for the 

(476 us 504] Tribe, § 935. It explicitly states that 

the Tribe desired an end to state laws shall apply to members of 

federal restrictions on alienation of the Tribe in the same manner that 

their lands in order to facilitate they apply to non-Indians. Ibid. Purfinancing for homes and farm opera- suant to that Act, the 3,434-acre 

tions." Accordingly, after discussions reservation that had been acquired 

with representatives of the Bureau as a result of the 194·3 Memorandum 

of Indian Affairs in which leaders of of Understanding was distributed to 

the Tribe were assured that any the members of the Tribe; the Secreclaim they had against the State tary of the Interior revoked the 

would not be jeopardized by legisla- Tribe's Constitution, effective July 1, 

tion terminating federal services, the 1962. 

Tribe adopted a resolution supporting such legislation and authorizing 

a distribution of tribal assets to the 

members of the Tribe.'4 After receiving advice that the Tribe suppOrted 

legislation authorizing the disposal 

of the tribal assets and terminating 

federal responsibility for the Tribe 

and its individual members, Congress enacted the Catawba Indian 

Tribe Division of Assets Act, 73 Stat 

592, 25 usc §§ 931-938 [25 uses 

§§ 931-938]. The Act provides for the 

preparation of a tribal membership 

roll, § 931; the tribal council's designation of sites for church, park, 

playground, and cemetery purposes, 

§ 933(b); and the division of remain12. In September 1954, a House Study Subcommittee on Indian Affain reported that the 

Catawba Tribe was one of the groups able to 

take responsibility for their alfain and therefore was ready for termination of federal 

sero;ces. HR Rep No. 2680, 83d Cong, 2d Sess, 

2-3 !1954). In contrast to the report made by 

Senator Thomas in 1930, n 7, supra, the 

Reporu accompanying the Act concluded 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. See S Rep No. 863, 86th 

Cong, 1st Sess, 3 (1959) ("The Catawba Indi· 

ans have advanced economically ... during 

the past 14 years, and have now reached a 

poeition that it comparable to t)leir non-In-

[476 us 505] 

In 1980, the Tribe commenced this 

action seeking possession of the 225-

square-mile tract and trespass damages for the period of its dispossession. All of the District Judges for 

the District of South Carolina recused themselves, and Judge Willson 

of' the Western District of Pennsylvania was designated to try the case. 

After the development of a substantial record of uncontested facts, 

Judge Willson granted the petitioners' motion for summary judgment. 

His order of dismissal was initially 

reversed by a panel of the Court of 

Appeals for the Fourth Circuit, 718 

F2d 1291 (1983); sitting en bane, the 

dian neighbors"); HR Rep No. 910, 86th Cong, 

1st Sess, 2 Cl959) (same). 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. S Rep, at 

4; HR Rep, at 5. 

13. See 105 Cong Rec 5462 (1959) (statement 

of Rep. Hemphill); App 102. 

1.C. The resolution adopted at the meeting 

of the Tribe on January 3, 1959, expressly 

noted that "nothing in this legislation shall 

a11'ect the 1tatua of any claim against the 

State of South Carolina by the Catawba 

Tribe." Id., at 103. 

49L 
519 

U.::l. SuPRDIE COURT REPORTS 90 LEd 2d 

full Court of Appeals adopted the 

panel's opinion. 740 F2d 305 (1954). 

Because of the importance of the 

case, we requested the views of the 

Solicitor General of the United 

States and granted certiorari, 471 

US 1134, 86 L Ed 2d 691, 105 S Ct 

2672 (1985). We now reverse. 

II 

[1c] Section 5 of the Catawba Act 

is central to this dispute. As cur-

·rently codified, it 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 Jaws 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 

15. DeCoteau v District County Court, 420 

US 425, 444, 43 L Ed 2d 300, 95 S Ct 1082 

(1975); Antoine v Washington, 420 US 194, 

199·200. 43 L Ed 2d 129, 95 S Ct 944 !l975l; 

Matu v Arnett, 412 US 481, 504-505, 37 L Ed 

2d 92, 93 S Ct 2245 119731. 

16. See Oregon Dept. of Fish and Wildlife v 

Klamath Indian Tribes, 473 US 753, 774, 87 L 

Ed 2d 542, 105 S Ct 3420 !19851 ("[Ejven 

though 'legal ambiguities are resoh·ed to the 

benefit of the Indians,' DeC<>teau v District 

County Court, 420 US 425, 447 [43 L Ed 2d 

300, 95 S Ct 1082] (19i5l, courts cannot ignore 

plain language that, viewed in historical con· 

tnt and given a 'fair appraisal,' Washin~n 

'498 

the United States." 25 USC § 935 

[25 uses § 935]. 

[3] This provision establishes two 

principles in unmistakably clear language. First, the special federal services and statutory protections for 

Indians are no longer applicable to 

the Catawaba Tribe and its members. Second, state laws apply to the 

[ 4i6 us 506] 

Catawba Tribe and its members in 

precisely the same fashion that they 

apply to others. 

The Court of Appeals disagreed 

with this reading of the Act. For it 

concluded that the word "them" in 

the second sentence of § 5 could refer to the individual Indians who are 

members of the Tribe and not encompass the Tribe itself. Relying on 

the canon that doubtful expressions 

of legislative intent must be resolved 

in favor of the Indians," it thus held 

that the language in § 5 about the 

inapplicability of federal Indian statutes and the applicability of state 

laws did not reach the Tribe itself. 

[ 4] The canon of construction regarding the resolution of ambiguities 

in favor of Indians, however, does 

not permit reliance on ambiguities 

that do not exist; nor does it permit 

disregard of the clearly expressed 

intent of Congress.'• It seems clear 

v Washington Commercial Passenger Fishing 

Vessel Assn. 443 US [658, 673 [61 L Ed 2d 

823, 99 S Ct 3055] 119791], clearly runs counter to a tribe's later claims"); Rice v 

Rehner, 463 US 713, 732, 77 L Ed 2d 961 , 103 

S Ct 3291 11983> (canon of construction regarding certain Indian claims should not be 

applied "when application would be tanta· 

mount to a formalistic disregard of congTessional intent"); Andrus v Glo,·er Construction 

Co. 446 US 608, 618-019, 64 L Ed 2d 548, 100 

S Ct 1905 (1980l; DeCoteau v District County 

Court, 420 US, at 447, 43 LEd 2d 129, 95 S Ct 

944 ("A canon of construction is not a license 

to disregard clear expressions of tribal and 

congressional intent"). 
520 

SOUTH CAROLI::-.'A v CATA\\.BA I::-..-DIA::-.' TRIBE 

476 tJS 498, 90 LEd 2d 490, 106 S Ct 2039 

to us that the antecedent of the 

words "them" and "their" in the 

second sentence of § 5 is the compound subject of the first clause in 

the sentence, namely, "the tribe and 

its members." To read the provision 

otherwise is to give it a contorted 

construction that abruptly divorces 

the first clause from the second and 

the third, and that conflicts with the 

central purpose 

[476 us 507] 

and philosophy of 

the Termination Act. According the 

statutory language its ordinary 

meaning, moreover, is reinforced by 

the fact that the first sentence in the 

section provides for a revocation of 

the Tribe's Constitution. It would be 

most incongruous to preserve special 

protections for a tribe whose constitution has been revoked while withdrawing protection for individual 

members of that tribe." 

[5] Without special federal protection for the Tribe, the state statute 

of limitations should apply to its 

claim in this case . .[or !Li;;~l 

established that federal claims are 

subject to state statutes onliilftahons unless there is a federalstatute of limitations or a co!i:fiicf-Wilh 

_]'~d!.!raf ~ p~li_c.i, '' ·-xffhoi.lgn--federal 

policy .may preclude the ordinary 

I 7. Respondent argues that the scope of the 

Act was merely to terminate the specific fed· 

era! services arising from the 1943 Memoran· 

dum of Understanding. Such a limited inter· 

pretation cannot be reconciled with the 

broader language of the Act <"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"; "the 

laws of the several states shall apply to them 

in the same manner they apply to other 

persons or citizens within their jurisdiction") 

(emphasis addedJ. 

18. See. e. f ., Wilson v Garcia, 471 US 261, 

21»267, 85 L Ed 2d 254, 105 S Ct 1938 t1985J; 

applicability of a state statute of 

limitations for this type of action in 

the absence of a specific congressional enactment to the contrary, 

County of Oneida v Oneida Indian 

Nation, 470 US 226, 84 L Ed 2d 169, 

105 S Ct 1245 (1985), the Catawba 

Act clearly suffices to reestablish the 

usual principle regarding the applicability of the state statute of limitations. In striking contrast to the 

situation in 

[476 us 508] 

County of Oneida, 

the Catawba Act represents an explicit redefinition of the relationship 

between the Federal Government 

and the Catawbas; an intentional 

termination of the special federal 

protection for the Tribe and its 

members; and a plain statement 

that state law applies to the Catawbas as to all "other persons or citizens." 

[6, 7] That the state statute of 

limitations applies as a consequence -;t 

of terminating special federal protec-

£ions 1s also supported by the signifi- 1 

cance we have accorded congressio- ~ 

nal action redefining the federal re- ) 

lationship with particular Indians. 

We have long recognized that, when 

Congress removes restraints on 

alienation by Indians, state laws are 

fully applicable to subsequent 

Board of Regents v Tomanio, 446 US 478, 483-

484, 64 L Ed 2d 440, 100 S Ct 1790 0980); 

Johnson v Railway Express Agency, Inc. 421 

US 454, 462, 44 L Ed 2d 295, 95 S Ct 1716 

(1975); Au(<) Workers v Hoosier Cardinal 

Ccrp. 383 US 696, 703-704, 16 LEd 2d 192, 86 

S Ct 1107 U966J; Cope v Anderson, 331 US 

461. 463, 91 L Ed 1602. 67 S Ct 1340 (19471; 

Rawlings v Ray, 312 US 96, 97, 85 L Ed 605, 

61 S Ct 473 (19411; O'Sullivan v Felix, 233 US 

318, 322-323, 58 L Ed 980, 34 S Ct 596 (19141; 

Chattanooga Foundry & Pipe Works v At· 

lanta, 203 US 390, 397-398, 51 L Ed 241, 27 S 

Ct 65 (19061; McClaine v Rankin, 197 US 154, 

158, 49 L Ed 702, 25 S Ct 410 <1905); Campbell v Haverhill, 155 US 610, 617, 39 L Ed 

280, 15 S Ct 217 U895l; M'Cluny v Silliman, 3 

Pet US 270, 277, 7 LEd 676 U830J. 

499 > 
521 

lJ .::i. ::ilJ.t-'Kt..'vlJ:.. LUUKf h.c..r'Vhl;:) :::u L co .;a 

claims." Similarly, we have empha· 

sized that Termination Acts subject 

members of the terminated tribe to 

"the full sweep of state laws and 

state 

(476 us 509) 

taxation."zo These principles 

reflect an understanding that con· 

gressional action to remove re· 

straints on alienation and other federal protections represents a funda· 

mental change in federal policy with 

respect to the Indians who are the 

subject of the particular legislation. 

[8, 9a] The Court of Appeals found 

support for its conclusion about the 

nonapplicability of the state statute 

of limitations in § 6 of the Catawba 

19. See, e.g., Larkin v Paugh, 276 US 431, 

439, 72 L Ed 640, 48 S Ct 366 \1928) ("With 

the issue of the patent, the title not only 

passed from the United States but the prior 

trust and the incidental restrictions against 

alienation were terminated. This put an end 

to the authority theretofore possessed by the 

Secretary of the Interior by reason of the 

trust and restriction~ that thereafter all 

questions pertaining to the title were subject 

to examination and determination by the 

courts, appropriately those in Nebraska, the 

land being there"); Dickson v Luck Land Co. 

242 US 371, 375, 61 L Ed 371, 37 S Ct 167 

(1917) ("With those restrictions [of Congress] 

entirely removed and the fee simple issued it 

would seem that the situation was one in 

which all questions pertaining to the disposal 

of the lands naturally would fall ,.;thin the 

scope and operation of the laws of the State"); 

United States v Waller. 243 US 452, 461-462, 

61 L Ed 643, 37 S Ct 430 (191il ("\Ve cannot 

escape the com;ction that the plain language 

of this act evidences the intent and purpose of 

Congress to make such lands allotted to 

mixed-blood Indians subject to alienation with 

all the incidents and rights which inhere in 

full ownership in persons of full capacity"J; 

Schrimpscher v Stockton, 183 US 290, 296, 46 

L Ed 203, 22 S Ct 107 (19021 !after a treaty 

removed restraints from alienation of land by 

certain Wyandotte Indians, state statute of 

limitations ran against Indians, even though 

Indians later asserted claim of a prior federal 

treaty violation; after removal of restraints on 

alienation, the Indian's heirs "were chargeable with the same diligence in beginning an 

500 

Act, which provides that nothing in 

the statute affects the rights of the 

Tribe under the laws of South Carolina.21 The thrust of the Court of 

Appeals' reasoning was that, if a 

state law was inapplicable to the 

Tribe or its members before the ef. 

fective date of the Act, its application after the effective date necessarily violates § 6. But such a reading 

contradicts the plain meaning of 

§ 5's reference to the applicability of 

·state laws. In our view § 6 was 

merely intended to remove federal 

obstacles to the ordinary application 

of state law. Section 6 cannot be 

read to preserve, of its 

(476 us 5101 

own force, a 

action for their recovery as other persons 

having title to lands"). 

20. Bryan v Itasca County, 426 US 373, 389, 

48 L Ed 2d ilO, 96 S Ct 2102 U976l. See also 

United States v Antelope, 430 US 641, 647, n 

7, 51 L Ed 2d 701, 97 S Ct 1395 U977J 

("[M]embers of tribes whose official status has 

been terminated by congressional enactment 

are no longer subject, by virtue of their sta· 

tus, to federal criminal jurisdiction under the 

Major Crimes Act"); Affiliated Ute Citizens v 

United States, 406 US 128, 31 LEd 2d 741, 92 

S Ct 1456 11972) (terminated members of 

Tribe must bring action to invalidate allegedly fraudulent conveyance under same laws as other citizens). 

As the Court of Appeals noted, in Menomi· 

nee Tribe v United States, 391 US 404, 20 L 

Ed 2d 697, 88 S Ct 1705 (1968), the Court 

concluded that the Menominee Termir.ation 

Act did not terminate the Tribe's hunting and 

fishing rights. The Court emphasized that the 

Termination Act must be read in pari materia 

with an Act passes in the same Congress that 

preserved hunting and fishing rights. Id., at 411, 20 L Ed 2d 697, 88 S Ct 1705. In this 

case, of course, there is no similar contemporaneous statute. Moreover, in Menominee, the 

Court was concerned about a "backhanded" 

abrogation of treaty rights, id., at 412, 20 L 

Ed 2d 697, 88 S Ct 1705; no comparable 

abrogation is at issue here. 

21. As currently codified, § 6 provides: 

"Nothing in this subchapter shall atrect the 

rights, privileges, or obligations of the tribe 

and its members under the laws of South 

Carolina ... 25 usc § 936 (25 uses § 936). 
522 

SOUTH CAROLI:-.iA v CATAWBA 1:-.iDIA.N TRIBE 

476 t;S 498, 90 LEd 2d 490, 106 S Ct 2039 

federal tribal immunity from otherwise applicable state law without 

defeating a basic purpose of the Act 

and negating explicit language in 

§ s.= Most fundamentally, § 6 simply 

does not speak to the explicit redefinition of the federal relationship 

v.-ith the Catawbas that is the basis 

for the applicability of the state statute of limitations. 

[10a, 10b] Finally, the Court of 

Appeals relied heavily on the assurance to the Tribe that the status of 

any claim against South Carolina 

would not be affected by the legislation.23 Even assuming that the legislative provisions are sufficiently ambiguous to warrant reliance on the 

legislative history, we believe that 

the Court of Appeals misconceived 

the import of this assurance. We do 

not accept petitioners' argument 

that the Catawba Act immediately 

extinguished any claim that the 

Tribe had before the statute became 

effective. Rather, we assume that the 

status of the claim remained exactly 

the same immediately before and 

immediately after the effective date 

of the Act, but that the Tribe thereafter had an obligation to proceed to 

assert its claim in a timely manner 

as would any other person or citizen 

within the State's jurisdiction. As a 

22. (9b] It is an "elementary canon of 

construction that a statute should be interpreted so as not to render one part inoperative." Colautti v Franklin, 439 US 379, 392, 

58 L Ed 2d 596, 99 S Ct 675 (1979l. See also 

Mountain States Tel. & Tel. Co. v Pueblo of 

Santa Ana, 472 US 237, 249, 86 L Ed 2d 475, 

105 S Ct 2109 (1985l; United States v Menasche. 348 US 528, 53S-539, 99 L Ed 615, 75 

S Ct 513 11955) ("It is our duty 'to gi\·e effect, 

if possible, to every clause and word of a 

statute,' ~!ontclair v Ramsdell, 107 US 147, 

152 [27 L Ed 431, 2 S Ct 391], rather than to 

emasculate an entire section"). 

result, unlike the Court of Appeals, 

we perceive no contradiction between the applicability of the state 

statute of limitations and the assurance that the status of any state 

claims would not be affected by the 

Act. 

[1d] We thus conclude that the 

explicit redefinition of the federal 

relationship reflected in the clear 

language of the Catawba 

(476 us 511] 

Act requires the application of the state 

statute of limitations to the Tribe's 

claim. 

III 

[2b] The District Court held that 

respondent's claim is barred by the 

South Carolina statute of limitations. The Court of Appeals' construction of the 1959 federal statute 

made it unnecessary for that court 

to review the District Court's interpretation of state law. Because the 

Court of Appeals is in a better position to evaluate such an issue of 

state law than we are, 24 we remand 

the case to that court for consideration of this issue. 

It is so ordered. 

23. [10b] See 718 F2d 1291, 1296 (1983) 

(quoting Bureau of Indian Affairs official's 

assurance that " 'any claim the Catawbas had 

against the State would not be jeopardized by 

carrying out a program v.;th the Federal 

Government' "). 

24. See Pembaur v Cincinnati, 475 US 469, 

484-485, n 13, 89 L Ed 2d 452, 106 S Ct 1292 

(19861; Regents of University of Michigan v 

Ewing, 474 US 214. 224, n 10, 88 LEd 2d 523, 

106 S Ct 507 (1985l; Bishop v Wood, 426 US 

341, 345-347, 48 L Ed 2d 684, 96 S Ct 2074 

(1976l; Propper v Clark, 337 US 472, 486-487, 

93 LEd 1480, 69 S Ct 1333 (1949l. 

501 
523 

U.S. SUPRE:'viE COURT REPORTS 90 LEd 2d 

SEPARATE OPI!\IO:'i 

Justice Blackmun, with whom 

Justice Marshall and Justice 

O'Connor join, dissenting. 

The Catawba Indian Tribe Division of Assets Act, 73 Stat 592, 25 

usc § 931 et seq. [25 uses §§ 931 et 

seq.], was passed by Congress in 1959 

to divide up the Tribe's federally 

supervised reservation so that individual Catawbas could sell or mortgage their allotments. The Court today concludes that the Act also had 

the incidental effect of applying a 

South Carolina statute of limitations 

to the Catawbas' pre-existing and 

longstanding claim to lands the 

State purported to purchase from 

the Tribe in 1840. I feel this interpretation cannot be reconciled with 

the language of the Act under this 

Court's traditional approach to statutes regulating Indian affairs. I 

therefore dissent. 

I 

Too often we neglect the past. 

Even more than other domains of 

law, "the intricacies and peculiarities of Indian law deman[d] an appreciation of history." Frankfurter, 

[476 us 512) 

Foreword to A Jurisprudential Symposium in Memory of Felix S. Cohen, 

9 Rutgers L Rev 355, 356 (1954). 

Before the arrival of white settlers, the Catawba bdians occupied 

much of what is now North and 

1. In letters written in 1754 to the Catawbas and to the President of the Council of 

North Carolina, Governor Glen of South Carolina noted that the Catawbas repeatedly had 

complained about whites' settling too close to 

them. 6 Record, EXJI 1 and 2. In response to 

th..se complaints, Governor Glen forbade 

whites to settle within 30 miles of Catawba 

towns, .ibid., but that prohibition was frequently ignored. See C. Hudson, The Catawba 

502 

South Carolina. In the 1760 Treaty 

of Pine Tree Hill, the Catawbas relinquished the bulk of their aboriginal territory to Great Britain in exchange for assurances that they 

would be allowed to live in peace on 

a small portion of that territory, a 

square of land 15 miles on each side 

(144,000 acres), which today surrounds and includes Rock Hill, S. C. 

Three years later, in the Treaty of 

Augusta, the Tribe again agreed to 

"remain satisfied with the Tract of 

Land of Fifteen Miles square," and 

the British once more promised that 

"the Catawba shall not in any respect be molested by any of the 

King's subjects within the said 

Lines." App 35. It is the 144,000 

acres reserved for the Catawbas in 

1760 and again in 1763--"a mere 

token of the[ir] once large domain" 

-that give rise to this litigation. See 

J. Brown, The Catawba Indians 8 

(1966) (Brown). 

The historical record suggests that 

the Catawbas were driven to the 

agreements of 1760 and 1763 in 

large part by the colonists' repeated 

and continuing encroachments on 

tribal lands.' Some of the land was acquired by purchase, see, e.g., id., at 

165, but in South Carolina, as elsewhere, "[f]rom the very beginning 

abuses marred the transfer of land 

titles from the Indians to individuals 

among the English 

[476 us 513] 

colonists." F. 

Nation 49 0970). For general discussions of 

early colonial encroachments on Catawba 

land, see Brown, at 163-166; P. Dammann, D. 

Miller, & D. Israel. A History of the Catawba 

Tribe and its Reservation Lands, reprinted in 

Settlement of the Catawba Indian Land 

Claims, Hearing before the House Committee 

on Interior and Insular Affairs on HR 3274, 

96th Cong, 1st Sess, 135, 151-153 0979J <Hear· 

in g). 
524 

SOUTH CAROLI::-J"A v CATAWBA INDIAN TRIBE 4~6 US 498, 90 LEd 2d 490, 106 S Ct 2039 

Prucha, American Indian Policy in 

the Formative Years 6 (1962). Indeed, the South Carolina Provincial 

Council took legislative notice in a 

1739 statute that lands purchased 

from Indians were "generally obtained . . . by unfair representations, fraud and circumvention, or 

by making them gifts or presents of 

little value, by which practices, 

great resentments and animosities 

have been created amongst the Indians toward the inhabitants of this 

Province." An Act to restrain and 

prevent the purchasing Lands from 

Indians, 1 The First Laws of the 

State of South Carolina 160-161 (J. 

Cushing ed 1981). The 1739 statute 

therefore barred the private acquisition of Indian lands without a grant 

or license from the Crown or the 

Governor, but such steps apparently 

did little to stop white encroachments on Indian territory. See Clinton & Hotopp, Judicial Enforcement 

of the Federal Restraints on Alienation of Indian Land: The Origms of 

the Eastern Land Claims, 31 U 

Maine L Rev 17, 21 (1979). Recognizing that "great frauds and abuses 

have been committed in the purchasing lands of the Indians," the Crown 

in October 1763-shortly before the 

signing of the Treaty of Augustaflatly forbade any further private 

purchases of land reserved for Indian tribes. Proclamation of 1763, 

reprinted in 3 W. Washburn, The 

American Indian and the United 

States 2135, 2138 (1973). 

The United States from an early 

date followed a similar policy. Since 

1790, the Nonintercourse Act, now 

codified as reenacted and amended 

at 25 usc § 177 [25 uses § 177), has 

broadly prohibited the sale of Indian 

land without the consent of the Federal Government. Despite this prohibition-which in 1793 was extended 

to include not only outright purchases but also acquisitions of any 

"claim" to protected lands, see Act 

of Mar. 1, 1793, § 8, 1 Stat 330-

mounting pressures from settlers in 

the early 19th century led the State 

of South Carolina to enact a series of 

statutes purporting to authorize the 

leasing 

[4i6 us 514] 

of Catawba lands to non-Indians. Initially, the leases signed under these statutes seem to have 

posed little threat to the Tribe. According to B. S. Massey, who knew 

the Catawbas during this time and 

later served as South Carolina's 

agent to the Tribe, "[t]hey were then 

strong and felt themselves in their 

own greatness, governed by their 

own laws, working the best spots of 

their lands and leasing out the 

poorer portions to the white men." 

Report to The Governor of South 

Carolina on the Catawba Indians 4 

(1854), reprinted in 6 Record, Ex 11. 

By the 1830's, however, nearly all 

of the 144,000 acres reserved for the 

Tribe in the Treaty of Augusta had 

been leased to non-Indians. This situation proved disastrous, because 

rents were "generally paid in old 

horses, old cows or bed quilts and 

clothes, at prices that the whites set 

on the articles taken." Ibid. The Catawbas soon were reduced to "a state 

of starvation and distress," ibid., and 

they ultimately gave in to repeated 

efforts by the State to purchase their 

land. In 1840, representatives of the 

Tribe and the State signed the 

Treaty of Nation Ford. Under this 

"treaty"-which the United States 

never joined or approved-the Catawbas relinquished all their land in 

exchange for two promises. First, the 

State promised the sum of $16,000 in 

a series of resettlement payments. 

Second, the State pledged that it 

503 
525 

U.S. SuPRE~ll:. LUL.:.t\l rt.t.run • .::: 

v.'ould purchase a new reservation 

"of the value of five thousand dollars," including 300 acres of "good 

arable lands fit for cultivation" in a 

thinly populated area of North or 

South Carolina satisfactory to the 

Indians. App 38-39.' 

[476 us 515] 

The South Carolina Legislature 

promptly provided for the transfer of 

title from the State to the lessees of 

the 144,000 acres, requiring only 

that the lessees reimburse the State 

proportionately for its advances to 

the Tribe. Act of Dec. 18, 1840, § 3, 7 

SC Stats 103 (1840). Unfortunately, 

the State showed less enthusiasm in 

fulfilling its contractual obligations 

to the Indians. After allowing the 

Catawbas to wander homeless and 

uncompensated for 2\12 years, the 

State reportedly spent $2,000 to buy 

back 630 agriculturally undesirable 

acres of the Catawbas' original 18th 

century treaty lands as a "new" reservation for the Tribe? The State 

continues to hold these 630 acres for 

the Catawbas. It is unclear from the 

record before us whether the Tribe 

2. According to Massey, the Indians "were 

driven to'" this agreement "by being surrounded by white men, [who] cheat[ed] them 

out of their rights, and [by] partaking of the 

'ices of the whites and but few of their \irtues." Report to The Governor of South Carolina on the Catawba Indians 5 (1854), reprinted in 6 Record, Ex 11. The "vices" to 

which Massey referred may have included the 

consumption of alcohol; the Catawbas later 

charged that state representatives negotiated 

the treaty by setting out a whiskey barrel and 

tin cups and inviting the Indians to help 

themselves. This charge was reported to the 

Department of the Interior in a 1908 memorandum by Catawba tribal attorney Chester 

Howe. See Plaintiffs' Response to Defendants' 

Motion to Dismiss in No. 80-2050-6 (CA4l p 

23, n 30, citing Record Group i5, National 

Archives ~ntral Files 1907-1939, BIA File 

No. 1753-1906. 

3. See Brown, at 317, 320-322. Assuming 

this account is correct, the new reservation 

504 

ever received the resettlement payments promised by the State. 

In the 146 years that have passed 

since the Nation Ford agreement, 

the Catawbas repeatedly have 

pressed their claim to the 144,000 

acres, which they feel were taken 

from them illegally. In the early 

1900's, the Tribe petitioned both the 

Federal Government and the State 

of South Carolina for relief, arguing 

that the 1840 transfer was void because the United States had not approved it. The Commissioner of Indian Affairs advised the Catawbas in 

1906 and again in 1909 that the 

Department of the Interior would 

not seek relief on their behalf. He 

explained that the Catawbas were 

"state Indians" for whom the United 

States had no responsibility, and, 

consequently, that the absence of 

federal participation in 

[476 us 516] 

the Treaty of 

Nation Ford did not void the transaction.' In 1908, the South Carolina 

Attorney General reached the same 

conclusion, and advised the state legislature that the Tribe had no 

was less than one-half of one percent of the 

Tribe's 1763 treaty lands. The price paid by 

the State for the new reservation-which 

works out to roughly S3.17 per acre---<:on· 

trasts strikingly with the price paid for the 

same land when purchased from the Indians 

2\A. years earlier-the approximate equivalent 

of 15 cents per acre payable in installments 

over 10 years. 

4. 6 Record. Exs 18, 20. But see United 

States v Candelaria, 271 US 432, 442, 70 L Ed 

1023, 46 S Ct 561 (1926) (construing the term 

"Indian Tribe" in the Nonintercourse Act to 

refer to any " 'body of Indians of the same or 

a similar race, united in a community under 

one leadership or government, and inhabiting 

a particular though sometimes ill-defined 

territory,'" quoting Montoya v United States, 

180 US 261. 266, 45 L Ed 521, 21 S Ct 358 

(1901J; Joint Tribal Council of Passamaquoddy 

Tribe v Morton, 528 F2d 370, 376-378 (CAl 

1975J (applying Nonintercourse Act to Tribe 

lacking federal recognition). 
526 

SOUTH CAROLINA v CATAWBA 1.:-IDIAN TRIBE 

-t76 t;S 498. 90 L Ed 2d 490, 106 S Ct 2039 

outstanding claim to any of the 144,-

000 acres. 1908 Op SC Atty Gen 17, 

18, 29-32. The Tribe nonetheless continued to press its claim to the land. 

A federal Indian agent visiting the 

Catawbas in December 1910, for example, was asked about the Tribe's 

prospects for recovering "their old 

reservation of 15 miles square"; he 

told them the Department of the 

Interior would not take their case 

into court. 6 Record, Ex 21, pp 11-12 

(letter from C. Davis to Comm'r of 

Indian Affairs, Jan. 5, 1911). 

The seeds of the legislation found 

dispositive by the Court today were 

planted in 1943, when the Tribe, the 

State of South Carolina, and the 

Department of the Interior concluded a Memorandum of Understanding providing for a new reservation for the Catawbas, and placing 

the Tribe and the new reservation 

under federal supervision. Evidently 

concerned about the Tribe's continued grievances concerning the 1840 

agreement, South Carolina sought, 

unsuccessfully, to include in the 

Memorandum a waiver of any outstanding claims the Catawbas had 

against the State. Id., Ex 48 (letter 

from Ass't Comm'r of Indian Affairs 

to SC State Auditor, Aug. 28, 1941). 

Preliminary drafts of the Memorandum included such a waiver, see id., 

Ex 49, p 5, but federal officials ultimately dropped the provision because they doubted the legality of 

using the agreement to deprive the 

Indians of claims that otherwise 

might be enforceable in court, see 

App 

[476 us 5!7) 

43-44 (memorandum from Interior Dept. Solicitor to Comm'r of 

Indian Affairs, Jan. 13, 1942). 

In 1958, after representatives from 

the Bureau of Indian Affairs suggested to the Catawbas that their 

financial difficulties could be alle\·iated by distributing the Tribe's federally supervised assets and ending 

federal restrictions on alienation, 

the Indians expressed concern about 

their claims against the State, but 

they were assured that the proposal 

would not jeopardize those claims. 6 

Record, Ex 53, pp 7-8 (memorandum 

from program officer to Tribal Programs Branch Chief, Jan. 30, 1959) 

(quoted by the Court, ante, at 510, n 

23, 90 L Ed 2d, at 501). The Tribe 

then adopted a resolution calling on 

its Congressman, Robert Hemphill, 

to introduce and secure passage of 

legislation to remove restraints on 

alienation and to distribute tribal 

assets; the resolution specifically requested, however, that "nothing in 

this legislation shall affect the status 

of any claim against the State of 

South Carolina by the Catawba 

Tribe." App 103. 

Representative Hemphill asked 

the Bureau of Indian Affairs to draft 

legislation "to accomplish the desires set forth in the Resolution." 

Id., at 50. He then presented the 

draft bill to the Catawbas and told 

them that it had been "drawn up to 

carry out the intent of the resolution." Id., at 111. After a majority of 

the Tribe expressed approval, Representative Hemphill introduced the 

bill in Congress, explaining that the 

Tribe had given its consent. See 105 

Cong Rec 5462 (1959). The result 

was the 1959 Division of Assets Act, 

which the Court today concludes 

may bar the Tribe from pursuing its 

claim to the lands reserved for it in 

1760 and 1763. 

In the 1970's, spurred by favorable 

legal rulings elsewhere in the country, Catawba leaders renewed their 

reques~ to the Department of the 

Interior to seek relief for the Tribe. 
527 

U.S. SUPRE~E COURT REPORTS 90 LEd 2d 

In 1977, the Solicitor of the Department concluded that the rebuffs 

given the Catawbas in 1906 and 

1909 had been legally unjustified, 

and that the Tribe could establish a 

prima facie claim to the 144,000 

acres. He further concluded that the 

(4i6 us 518) 

Division of Assets Act operated prospectively only, and did not affect 

pre-existing rights. Accordingly, the 

Solicitor formally requested the Department of Justice to institute legal 

action on behalf of the Catawbas 

and to support the settlement discussions that the Tribe already had 

initiated with South Carolina officials. See App to Brief in Opposition 

3a. The litigation request was later 

withdrawn in an effort to emphasize 

that the Interior Department favored a negotiated settlement if at 

all possible, and settlement legislation backed by the Tribe was introduced in Congress. See Hearing, at 

15-17 (Hearing) (statement of Leo M. 

Krulitz, Solicitor of the Department 

of the Interior). The legislative efforts apparently proved fruitless, 

and in October 1980 the Tribe filed 

this suit. 

II 

The Tribe's complaint asserts a 

right to possession of the reserved 

portion of its aboriginal territory 

under the Nonintercourse Act, the 

Federal Constitution, and the treaties of 1760 and 1763.

5 These are 

federal claims, see Oneida Indian 

Nation v County of Oneida, 414 US 

5. Although the complaint asks in part that 

the Tribe "'be restored to immediate posses· 

sion .. of virtually the entire 144,000 acres. 

App 25, the available remedies; e,·en if the 

Tribe prevailed, well might be limited by 

equitable considerations. See Yankton Sioux 

Tribe v United States, 272 US 351, 357, 71 L 

506 

661, 666-6i8, 39 L Ed 2d i3, 94 S Ct 

7i2 (19i4l lOneida Il, and the statute 

of limitations is thus a matter of 

federal law, see County of Oneida v 

Oneida Indian Nation, 470 US 226, 

240-244, 84 L Ed 2d 169, 105 S Ct 

1245 (1985) (Oneida !I). Where, as 

here, Congress has not specified a 

statute of limitations, federal courts 

generally borrow the most closely 

analogous limitations period under 

state law, but only if application of 

the state limitations period would 

not frustrate federal policy. See, e.g., 

Wilson v Garcia, 471 US 261, 266-

267, 85 L Ed 2d 254, 105 S Ct 1938 

(1985); DelCostello v Teamsters, 462 

US 151, 158-163, 76 L Ed 2d 476, 103 

s Ct 2281 

(476 us 519) 

(1983); Occidental Life Ins. 

Co. v EEOC, 432 US 355, 367, 53 L 

Ed 2d 402, 97 S Ct 2447 (1977). 

In Oneida II, the Court recognized 

that application of state statutes of 

limitations to Indian land claims 

generally would violate federal policy. The Court noted that a 1950 

federal statute giving New York 

courts jurisdiction over most civil 

disputes involving Indians had been 

carefully crafted to exempt pre-existing land claims from the operation 

of a New York statute of limitations. 

See Act of Sept. 13, 1950, 64 Stat 

845, 25 usc § 233 [25 uses § 233]. 

Furthermore, in a later series of 

more general enactments imposing a 

federal statute of limitations on certain tort and contract actions 

brought anywhere in the United 

Ed 294, 4i S Ct 142 !1926). The question · 

currently before the Court, of course, is not 

whether part or all of the land claimed by the 

Catawbas should be given back to them, but 

whether the Tribe's ability to seek any judi· 

cia! relief at all is governed by South Caroli· 

na's statute of limitations. 
528 

SOUTH CAROLINA v CATAWBA I:-.;DIAN TRIBE 

476 US 498, 90 LEd 2d 490, 106 S Ct 2039 

States by Indians or by the Unite:! 

States on behalf of Indians, Congress 

specifically excluded from the limitations period all actions "to establish 

the title to, or right of possession of, 

real or personal property." 28 USC 

§ 2415(c) [28 USCS § 2415(cl].' The 

Court in Oneida II concluded that 

(476 us 520] 

the 

text and legislative history of these 

statutes evinced a congressional belief that actions brought to enforce 

Indian property rights were not, and 

should not be, subject to filing deadlines other than those provided by 

federal statute. Borrowing a state 

statute of limitations in such a case 

"would be a violation of Congress' 

will." 470 US, at 244, 84 L Ed 2d 

169, 105 S Ct 1245. 

In determining whether the 1959 

Division of Assets Act exempts the 

Catawbas' claim from this general 

principle, analysis must begin with 

the firmly established rule-which 

the Court today implicitly reaffirms, 

see ante, at 506, 90 L Ed 2d, at 498-

6. The federal statute of limitations for 

certain tort and contract actions brought by 

the United States on behalf of Indian Tribes 

was first adopted in 1966; the limitations 

period was not applied to suits brought by 

Indians themselves until 1982. "In 1972 and 

again in 1977, 1980, and 1982, as the statute 

of limitations was about to expire for pre-1966 

claims. <Angress extended the time within 

which the United States could bring suits on 

behalf of the Indians." Oneida II, 470 US, at 

242. 84 L Ed 2d 169, 105 S Ct 1245. The 

debates over these amendments to § 2415 indicate that <Angress extended the filing dead· 

line in part to allow additional time for preparation and negotiation of tort claims for 

trespass damages arising from allegedly illegal expropriations of tribal lands-including 

the 144,000 acres claimed by the Catawbas. 

See, e.g., 123 Cong Rec 22166-22167 (1977) 

(Rep. <Ahen, discussing Catawba claim and 

others!; id., at 22168 <Rep. Walsh~ id., at 

22170 !Rep. Hanley); 126 <Ang Rec 574S.5749 

!1980! !Rep. Holland, discussing Catawba 

claim!; id., at 5750 !Rep. Udalll. Members of 

499-that ambiguities in statutes 

regulating Indian affairs are to be 

construed in the Indians' favor. See, 

e.g., Oneida II, 470 US, at 247-248, 

84 L Ed 2d 169, 105 S Ct 1245; 

Bryan v Itasca County, 426 US 373, 

392, 48 L Ed 2d 710, 96 S Ct 2102 

(1976); Northern Cheyenne Tribe v 

Hollowbreast, 425 US 649, 655, n 7, 

48 LEd 2d 274, 96 S Ct 1793 (1976); 

DeCoteau v District County Court, 

420 US 425, 444, 43 L Ed 2d 300, 95 

S Ct 1082 (1975); United States v 

Santa Fe Pacific R. Co. 314 US 339, 

353-354, 86 L Ed 260, 62 S Ct 248 

(1941); Alaska Pacific Fisheries v 

United States, 248 US 78, 89, 63 L 

Ed 138, 39 S Ct 40 (1918); Choate v 

Trapp, 224 US 665, 675, 56 L Ed 

941, 32 S Ct 565 (1912); see generally 

F. Cohen, Handbook of Federal Indian Law 221-225 (1982). This rule is 

not simply a method of breaking 

ties; it reflects an altogether proper 

reluctance by the judiciary to assume that Congress has chosen further to disadvantage a people whom 

our Nation long ago reduced to a 

<Angress emphasized repeatedly that Indian 

land claims were difficult to research, that 

Indians historically had lacked adequate legal 

assistance and administrative resources, and 

that the United States had not played its 

proper role in bringing suits on the Indians' 

behalf. See, e.g., 123 <Ang Rec 22170 !1977) 

(Rep. Collinsl; id., at 22171 !Rep. Johnson); 

126 <Ang Rec 3289 !19801 (Sen. Cranston); id., 

at 5i45-5746 <Rep. Clausen); id., at 5747 !Rep. 

Danielson); id., at 5750 !Rep. Swift). See also 

123 <Ang Rec 22171 <1977! <Rep. Weiss) ("[A)s 

a result of the numerous injustices suffered by 

American Indians during the last 150 yearsmany at the hands of the American Govern· 

ment-it is incumbent on the United Stat..s 

to give these people--<>ur country's first in· 

habitants-a full chance to redress their 

grievances"!; 126 <Ang Rec 3287 U980! !Sen. 

Melcher) (failure to extend statute of Jimita· 

tions could lead to "mass injustices"). Similar 

considerations presumably motivated <An· 

gnss' decision to exempt entirely all claims 

for title or possession from the limitations 

period prescribed in § 2415. 

507 
529 

U.S. SUPRE:'vfE COURT REPORTS 90 LEd 2d 

state of dependency. The rule is particularly appropriate when the statute in question was passed primarily 

for the benefit of the Indians, as was 

the 1959 Division of Assets Act. Absent "clear and plain" language to 

the contrary, Santa Fe Pacific, 314 

US, at 353, 86 L Ed 260, 62 S Ct 248, 

it must be assumed that Congress 

did not intend to belie its 

[476 us 521) 

"avowed 

solicitude" for the Indians, id., at 

354, 86 L Ed 260, 62 S Ct 248, with a 

"backhanded" abrogation or limitation of their rights, Menominee 

Tribe v United States, 391 US 404, 

412, 20 L Ed 2d 697, 88 S Ct 1705 

(1968). 

The Court today evidently finds in 

§ 5 of the Division of Assets Act "the 

clearly expressed intent of Congress," ante, at 506, 90 L Ed 2d, at 

498, that the Catawbas' tribal land 

claim was to be subject to South 

Carolina's statute of limitations. The 

Court relies largely on two provisions of § 5. The first renders inapplicable to the Catawbas all "special 

services performed by the United 

States for Indians because of their 

status as Indians," and "all statutes 

of the United States that affect Indians because of their status as Indians." The second provides that state 

laws shall "apply to [the Catawbas] 

in the same manner they apply to 

other persons or citizens." 25 USC 

§ 935 [25 USCS § 935]. Neither of 

these provisions, in my view, is able 

to bear the weight the Court places 

upon it. 

A 

The first provision merely renders 

federal Indian "services" and "statutes" inapplicable to the Catawbas. I 

agree with the Court that this provision makes the Nonintercourse A_ct, 

508 

along with other Indian statutes, 

inapplicable both to individual Catawbas and to the Tribe. See ante, at 

505-509, 90 L Ed 2d, at 498-500. But 

that simply means that after the 

Division of Assets Act went into effect, the Tribe no longer was statutorily barred from selling or leasing its 

land. The services-and-statutes 

clause of the Act does not expressly 

abrogate or place procedural conditions on any pre-existing claims the 

Catawbas may have had, and the 

broad federal policy against application of state statutes of limitations 

to Indian land claims is neither a 

"service" nor a "statute." 

The majority nonetheless asserts that this Court has "long recognized that, when Congress removes restraints on alienation by 

Indians, state laws are fully applicable to subsequent claims." 

Ante, at 508, 90 L Ed 2d, at 499-500. 

The cases it cites for that proposition all were decided well before the emergence during the 

[4i6 us 522) 

past 35 years of a clear congressionnal policy against the application of 

state statutes of limitations to Indian land claims. See Oneida II, 

470 US, at 240-244, 84 L Ed 2d 169, 

105 S Ct 1245. More importantly, all 

the cases cited by the majority involve lands for which patents had 

been issued to individual Indians, 

not lands alleged to remain tribal 

property. This Court made clear in 

Oneida I that claims arising under 

such patents are not federal claims 

at all, because, "[o]nce patent issues, 

the incidents of ownership are, for 

the most part, matters of local property law to be vindicated in local 

courts." 414 US, at 676, 39 L Ed 2d 

73, 94 S Ct 772. In this case, however, as in Oneida I, "the assertion · 

of a federal controversy does not rest 

solely on the claim of a right to 
530 

SOUTH CAROLI.NA v CATAWBA l.'.J.JiA.'o U\•Dl:. 

4i6 US 498. 90 LEd 2d 490, 100 S Ct 2039 

possession derived from a federal 

grant of title whose scope will be 

governed by state law. Rather, it 

rests on the substantial claim that 

federal law now protects, and has 

continuously protected from the 

time of the formation of the United 

States, possessory right to tribal 

lands, wholly apart from the application of state law principle!. which 

normally and separately protect a 

valid right of possession." 414 US, at 

677, 39 L Ed 2d 73, 94 S Ct 772. 

Here, as in Oneida I, the complaint 

thus "asserts a present right to possession under federal law." Id., at 

675, 39 L Ed 2d 73, 94 S Ct 772. 

I do not see how a statute removing restraints on alienation can 

fairly be said to signal unambiguously a congressional intent to subject pre-existing tribal land claims 

arising under federal law to state 

statutes of limitations. But even if I 

agreed with the majority that the 

removal of restraints on alienation 

7. John Stuart, the King's Superintendent 

of Indian Affairs, who had negotiated the 

Treaty of Augusta, noted in a 1772 letter to 

the South Carolina Go\·ernor that the 144,000 

acres reserved for the Catawbas in that treaty 

were, "as well as a very considerable Extent 

of Country besides{,] possessed by them when 

the Subjects of England first Settled in this 

part of the World." 6 Record. Ex 7, p 1. 

8. See generally F. Cohen. Handbook cf 

Federal Indian Law 4SEH93 !1982>; Cohen. 

Original Indian Title, 32 ~linn L Rev 23 

(194i l; :Sate, Indian Title: The Rights of 

American :Satives in Lands They Ha,·e Occu· 

pied Since Time Immemorial. iS Colum L Rev 

655 l1975). 

9. This Court long has respected gTants of 

land to Indian tribes by prior governments. 

See. e.g .. United States v Title Insurance & 

Trust Co. 265 US 472, 484. 68 LEd 1110. 44 S 

Ct 621 l1924l, quoting Barker v Harvey, 181 

US 481. 491-492, 45 L Ed 963, 21 S Ct 690 

(19011 l" 'There is an essential difference between the power of the United States over 

lands to which it hll.! had full title. and of 

.,.·hich it has gi,·en to an Indian tribe a temporary occupancy, and that o,·er lands which 

were subjected by the action of· some prior 

should trigger the application of 

state limitations periods, the 1959 

Act liited only statutory restrictions 

on the alienation of Catawba land, 

and the requirement that the Federal Government approve any transfer of the property at issue in this 

case did not, and does not, stem 

solely from any federal statute. The 

land set aside for the Catawbas in 

1760 and 1763 was within the 

Tribe's aboriginal territory,7 and 

(476 us 523] 

their claim to the land thus derives 

from original title• as well as from 

the 18th-century treaties.• With respect to original title, at least, the 

Nonintercourse Act merely "'put in 

statutory form what was or came to 

be the accepted rule-that the extinguishment of Indian title required 

the consent of the United States.' " 

Oneida II, 470 US, at 240, 84 L Ed 

2d 169, 105 S Ct 1245, quoting 

Oneida I, 414 US, at 678, 39 LEd 2d 

73, 94 S Ct 772. 1o 

government to a right of permanent occupancy, for in the latter case the right, which 

is one of private property, antecedes and is 

superior to the title of this government, and 

limits necessarily its powers of disposal' "); 

Mitchel v United States, 9 Pet 711, 9 L Ed 

283 ll835). 

10. The federal common-law rule against 

alienation of aboriginal title without the con· 

sent of the sovereign was recognized as early 

as 1823 in Chief Justice ~arshall's opinion 

for the Court in Johnson v ~clntosh, 8 Wheat 

543, 573-574, 5 L Ed 681 ll823), and it is 

reflected in the Constitution's Indian Commerce Clause, Art I, § 8, cl 3, which made 

"Indian relations .. . the exclusive province 

of federal law," Oneida II. 470 US, at 234, and 

n 4. 84 L Ed 2d 169. 105 S Ct 1245. See 

Clinton & Hotopp, Judicial Enforcement of 

the Federal Restraints on Alienation of In· 

dian Land: The Origins of the Eastern Land 

Claims, 31 U Maine L Rev 17, 28-29 (1979). In 

Oneida II, the Court rejected a suggestion 

that Indian common-law rights to tribal lands 

"''ere somehow swallowed up or pre-empted by 

the Nonintercourse Act; it made clear that 

the common law still furnishe! an indepen· 

509 
531 

U.S. SUPREME COURT REPORTS 90LEd2d 

There is nothing in the 1959 legislation that indicates that Congress 

intended to exempt the Catawbas 

from this 

(476 us 524] 

common-law protection of 

undistributed tribal property as well 

as from its statutory codification. 

Nor is there anything to indicate 

that Congress meant to abrogate the 

protection promised to the Tribe under the treaties of 1760 and 1763, 

which the Tribe claims provide an 

independent source of continuing 

federal protection. Indeed, in rejecting an argument that a similar provision of the Menominee Termination Act destroyed treaty rights to 

hunt and fish, this Court noted: "The 

use of the word 'statutes' is potent 

evidence that no treaty was in 

mind." Menominee Tribe, 391 US, at 

412, 20 L Ed 2d 697, 88 S Ct 1705 

(emphasis in original). In the same 

way, Congress' use in 1959 of the 

terms "services" and "statutes" suggests, if anything, that the Division 

of Assets Act was not intended to 

remove other sources of protection. 

Surely the selection of these terms 

provides no support for the view 

dent basis for legal relief. See 470 US, at 236-

240, 84 LEd 2d 169, 105 S Ct 1245. 

11. The Tribe's complaint requests relief 

under the treaties of 1760 and 1763, the 

Nonintercourse Act, the Indian Commerce 

Clause, Art I, § 8, cl 3, and the constitutional 

prohibition against state treaties, Art I, § 10, 

cl 1. App 24. Reading the complaint liberally 

"so . .. as to do substantial justice," Fed Rule 

Civ Proc &0, I would conclude that the consti· 

tutional references suffice to invoke the rule 

that original Indian title may not be alienated without federal appro\'al. Cf. Brief for 

United States as Amicus Curiae in Connecti· 

cut v Mohegan Tribe, 0 T 1980, No. 80-1365 

[452 US 968, 69 LEd 2d 981, 101 S Ct 3124), p 

7 (describing the rule as "constitutionally 

based"). A narrower construction of the com· 

plaint would be especially inappropriate be- cause the Tribe adopted the United States' 

510 

· that Congress meant to impose new 

procedural requirements on pre-existing tribal land claims based not 

only on statutory pro\isions, but also 

on treaty rights and federal common 

law. 11 

[476 us 525] 

B 

The second provision of the 1959 

Act relied on by the Court directs 

that "the laws of the several States 

shall apply to them in the same 

manner they apply to other persons 

or citizens within their jurisdiction." 

I agree with the Court that the word 

"them" must be understood to refer 

not only to individual Catawbas, but 

also to the Tribe. See ante, at 506-

507, 90 L Ed 2d, at 498-499. Clearly, 

however, "them" does not refer to 

claims brought by the Catawbas; the 

term encompasses the plaintiff in 

this case, but not the cause of action. 

This distinction is critical. The 

"laws of the several States" provision of the Division of Assets Act 

placed the Catawbas on the same 

footing as non-Indians with regard 

to the application of state law. Just 

brief in Mohegan Tribe as part of its response 

in the District Court to the defendants' m()o 

tion to dismiss, making clear that the constitutional claims raised in the complaint were 

to be read to embrace the common-law rule. 

See Plaintiff's Memorandum in Support of 

Motion for Leave to File Supplemental Mem()o 

randum and Supplemental Memorandum, 1 

Record, E>: 15. 

·· Because, under my view, the Tribe's treaty 

claims add nothing material for present purposes to its common-law claim, I would not 

decide at this time whether the 1760 and 

1763 treaties independently required the 

United States, as successor to Great Britain, 

to appro"e any sale or lease of the 144,000 

acres. Why the majority nnci3 no need to 

discuss this question, or the issue of commonlaw restraints on alienation, is harder to understand. 
532 

SOUTH CAROLINA v CATA\VBA !~DIAN TRIBE 

476 US 493, 90 L Ed 2d 490, 106 S Ct 2039 

as a non-Indian's action based on federal policy, the Catawbas' unsetSouth Carolina law must be brought tied tribal claims should be treated 

within the time specified by the any differently for statute-of-limitaState, so a state-law action brought tions purposes from other tribal land 

by a Catawba-or by the Catawba claims. Indeed, there is no indication 

Tribe-must meet the same require- that Congress thought about such 

ment. If a non-Indian in South Caro- claims at all." 

!ina brings a federal claim, however, 

the limitations period is determined 

by federal law. The same must hold 

for the federal claims raised by the 

Catawbas in this litigation. 

Of course, the real question in this 

case is not whether federal law governs the limitations question, but 

whether federal law should borrow 

South Carolina's period of limitations, notwithstanding the general 

federal policy against such borrowing in the context of Indian land 

claims. My point here is that this 

question is not answered by the statutory instruction to apply state law 

to the Catawbas "in the same manner" as it is applied to non-Indians. 

Subjecting a group of Indians to 

state law to the same extent as 

other citizens is far different from 

subjecting their unique federal 

claims to a state statute of limitations. For non-Indians as well as 

Indians, 

[476 us 526] 

the decision whether to apply a state limitations period to a 

federal claim depends on whether 

such application is deemed contrary 

to federal policy. And nothing in § 5 

of the Division of Assets Act unambiguously directs that, as a matter of 

12. The Senate and House Reports both 

explained that the purpose of the 1959 legislation was "to distribute the bulk of the [Catawbas'] tribal assets" among the members of the 

Tribe. S Rep No. 863, 86th Cong, 1st Sess, 1 

(19591; HR Rep No. 910, 86th Cong, 1st Sess, 2 

U959l. Each Report contained a list of the 

Tribe's assets; the list made no mention of the 

Catawbas' claim to their 18th~entury treaty 

lands. See S Rep No. 803, at 3; HR Rep No. 

910, at 4. 

c 

The Court does not rely exclusively on the terms of the two provisions discussed above; it also emphasizes that the Division of Assets Act 

as a whole represented an "explicit 

redefinition of the relationship between the Federal Government and 

the Catawbas," terminating "special 

federal protection" for the Tribe and 

its members. Ante, at 508, 90 L Ed 

2d, at 499; see also ante, at 510, 90 L 

Ed 2d, at 501.13 But if we take seriously the "eminently sound and vital canon" that all ambiguities in 

statutes passed for the benefit of 

Indians are to be construed in the 

Indians' favor, Northern Cheyenne 

Tribe, 425 US, at 655, n 7, 48 LEd 

2d 274, 96 S Ct 1793, then surely the 

effect of such an "explicit redefinition" must be limited to its explicit 

terms. The Court recognized as 

much in Menominee Tribe, supra, 

when it refused to read into the 

Menominee Termination Act an abrogation of the Menominees' 

[476 us 527] 

treaty 

rights to hunt and fish. Regardless of 

the general thinking behind the termination policy of the 1950's, we are 

13. The majority rightly places little weight 

on the fact that § 5 of the 1959 Act revoked 

the Tribe's Constitution. The Catawbas had 

no tribal constitution until 1944, when they 

adopted one pursuant to the 1943 Memorandum of Understanding. See, e.g., HR Rep No. 

910, 86th Cong, 1st Sess, 5 0959). Revocation 

of the Constitution therefore can hardly be 

understood as a statement that the Tribe 

should cease existence or lose any pre-existing 

claims. 

51~ 
533 

U.S. SUPREME COURT REPORTS 90 LEd 2d 

faced here with a particular statute, 

and we should not " 'strain to implement [an assimilationist] policy Congress has now rejected.' " Bryan v 

Itasca County, 426 US, at 389, n 14, 

48 L Ed 2d 710, 96 S Ct 2102, quoting Santa Rosa Band of Indians v 

Kings County, 532 F2d 655, 663 

(CA9 1975). 

Such straining is particularly inappropriate in this case, where the 

statute in question was passed at the 

Indians' behest, was apparently intended to carry out the Indians' 

wishes, and received the Indians' 

support based on federal assurances 

that it would not "affect the status" 

of their claim against the State. 

One, of course, can distinguish formally, as the majority does, see ante, 

at 510, 90 L Ed 2d, at 501, between 

preserving the "status" of the claim 

and preserving the claim's immunity 

from the state statute of limitations. 

But the distinction smacks of the 

kind of semantic trap that this 

Court consistently has attempted to 

avoid when construing governmental 

agreements with Indians and statutes ostensibly passed for the benefit 

of Indians. In cases involving Indian 

treaties, for example, it has long 

been the rule not only that doubtful 

expressions must be construed in the 

Indians' favor, but also that the entire treaty must be interpreted as 

the Indians would have understood 

it. See, e.g., Choctaw Nation v Oklahoma, 397 US 620, 631, 25 L Ed 2d 

615, 90 S Ct 1328 (1970); Jones v 

Meehan, 175 US 1, 11, 44 LEd 49, 

20 S Ct 1 (1899); Worcester v Georgia, 6 Pet 515, 582, 8 L Ed 483 

(1832). 

The Catawbas were assured in un14. See. e.g., Hearing, at 20 (statement of 

Leo M. Krulitz, InU!rior Department Solici· 

tor); id .• at 39 (statement of Claude Ayres, 

Member, Catawba Indian Nation Land Claim 

. .!U?. .. 

qualified terms that the 1959 legislation would not jeopardize their century-old grievance against the State 

of South Carolina. The Act itself 

said nothing about the claim, and 

nothing about statutes of limitations. No one told the Indians or the 

voting Members of Congress that the 

statute might someday prevent the 

Tribe from pursuing its claim in 

court. The Court nevertheless concludes today that the 1959 Act bars 

the Catawbas' claim if the limitations period under South Carolina 

law expired between 

(476 us 528] 

the passage of 

the Act and the initiation of this 

lawsuit in 1980, and that this interpretation of the statute comports 

with the promises made to the Catawbas in the 1950's. I cannot agree 

with either conclusion. In my view, 

this decision breaks faith once again 

with the Tribe, and it does so in a 

way the statute does not require. 

Nothing in the text or legislative 

history of the Act evinces a congressional desire to mislead the Indians, 

or an understanding that the Act 

sometime might be construed as it is 

by the Court today. 

III 

Apparently, there no longer are 

any full-blood Catawbas, and no one 

now speaks the Catawba language. 

See Charlotte Observer, Mar. 6, 

1977, p lC, reprinted in Hearing, at 

420. Of the 1,200 or so persons currently on the tribal roll, only about 

5 or 10 percent live on the 630-acre 

reservation still held for the Tribe 

by the State of South Carolina.1

' The 

Committee); Proposed Catawba Indian Reservation Land Use Analysis 4 (1977), reprinted 

in Hearing, at 251, 258. 
534 

"'-''V v & &.i. Vr'L.L'\.VJ...oJ..L '1 .. ""l. V \,...rt.l ~ H 0~ J.J. ~!J.l."'\ .1. ~ l I\10~ 

476 US 498, 90 L Ed 2d 490, 106 S Ct 2039 

reservation itself does not differ con-. 

spicuously from other rural neighborhoods in South Carolina. Indeed, 

"(a]n unobservant tourist may well 

drive through the reservation unawares, and many do." C. Hudson, 

The Catawba Nation 3 (1970). For 

the most part, modern-day Catawbas 

"think and live like ordinary Americans of the Southeast." Ibid. 

When an Indian Tribe has been 

assimilated and dispersed to this extent-and when, as the majority 

points out, thousands of people now 

claim interests in the Tribe's ancestral homeland, see ante, at 499-500, 

90 L Ed 2d, at 494-495, and n 4-

the Tribe's claim to that land may 

seem ethereal, and the manner of 

the Tribe's dispossession may seem 

of no more than historical interest. 

But the demands of justice do not 

cease simply because a wronged people grow less distinctive, or because 

the rights of innocent third parties 

must be taken into account in fashioning 

(476 us 529] 

a remedy. Today's decision seriously handicaps the Catawbas' effort 

to obtain even partial redress for the 

illegal expropriation of lands twice 

pledged to them, and it does so by 

attributing to Congress, in effect, an 

unarticulated intent to trick the Indians a century after the property 

changed hands. From any perspective, there is little to be proud of 

here. 

Because I do not believe that Congress in 1959 expressed an unambig- uous desire to encumber the Catawbas' claim to their 18th-century 

treaty lands, and because I agree 

with Justice Black that "(g]reat nations, like great men, should keep 

their word," FPC v Tuscarora Indian 

Nation, 362 us 99, 142, 4 L Ed 2d 

584, 80 S Ct 543 (1960) (dissenting 

opinion), I do not join the judgment 

of the Court. 

513 
535 

CATAWBA INDIAN TRIBE OF S.C. v. STATE OF S.C. 1291 Cll~ os 711 F.Zd 12!11 (lt&l) 

CATAWBA INDIAN TRJBI-: 01-' SOUTH 

CAROLINA. also known as the Catawba 

Nation of South Carolina., Appellant. 

v. 

-STATE OF SOUTH CAROLINA. Richard 

W. Riley, as Governor of the State of 

South Carolina; County of Lancaster, 

and iis County Council consisting of 

Francis L. Bell as Chairman, Fred E. 

Plyler, Eldridge Emory, Robert L. Mobley, Barty L. Mobley, L. Eugene Hudson, 

Lindsay Pettus; City of Roc!: Hill, J. 

Emmett Jerome, as Mayor, and its City 

Council c'lnsisting of Melford A. Wilson, 

Elizabeth D. Rhea, Maxine Gill, Winston 

Searles, A. Douglas Echols, Frank W. 

Berry, Sr.; Bowater North American 

Corporation; Catawba Timber Co.; Celanese Corporation of America; Citizens 

and Southern National Bank of South 

Carolina; Cresent Land & Timber 

Corp.; Duke Power Company; Flint Realty and Construction Company; Herald 

Publishing Company; Home Federal 

Savings and Loan Association; Rock 

Hill Printing & Finishing Company; 

Roddey Estates, Inc.; Southern Railway 

Company; Springs Mills Inc.; J.P. Stevens & Company; Tega Cay Associates; 

Wachovia Bank and Trust Company; 

Ashe Brick Company; Church Heritage 

Village & Missionary Fellowship; Nisbet Farms, Inc.; C.H. Albright; Ned' 

Albright; J.W. Anderson, Jr.; John 

Marshall Wilkins, II; Jesse G. Ander· 

son; John Wesley Anderson; David 

Goode Anderson; W.B. Ardrey, Jr.; Eliza Beth Ardrey Grimball; John W. Ar· 

drey, Ardrey Farms; F.S. Barnes, Jr.; 

W. Watson Barron; Wilson Barron; Archie B. Carroll, Jr.; Hugh William 

Close; James Bradley; Francis Lay 

Springs; Lillian Crandel Close; Francis 

Allison Close; Leroy Springs Close; Patricia Close; William Elliot Close; Hugh 

William Close, Jr.; Robert A. Fewell; 

W J. Harris; Annie F. Harris; T.W. 

Hutchinson; Hiram Hutchinson, Jr.; 

J.R. McAlhaney; F.M. Mack. Jr.; Arnold F. Marshall; J.E. Marshall, Jr.; 

C.E. Reid, Jr.; WiD R. Simpson; JohnS. 

Simpson; Robert F. Simpson; Thomas 

Brown Snodgn.ss, Jr.: John 1\1. Spratt: 

Marshal E. Walker: Hugh M. White, Jr.: 

John M. Belk: Jane Nisbet Goode: R.N. 

Bencher; W.O. Nisbet. Ill: Pauline B. 

Gunter; J. Max Minson; W .A. McCorkle; Mary McCorkle; William 0. Nisbet; Eugenia Nisbet White; i'ttary Nisbet Purvis; E.N. Martin; Robert M. Yoder, Appellees. 

No. 82-1671. 

United Stales Court of Appeals; . 

Fou:th Circuit. 

Argued March 8, 1983. 

Decided Oct. 11, 198:>. 

Appeal was taken from a summary 

judgment of the United States District 

Court for the District of South Carolina, 

Joseph P. Wilson, Senior District Judge, 

sitting by designation, in favor of state and 

other defendants in suit by Catawba Indian 

· tribe for land alleg.,<!ly granted to State in 

violation of Indian Nonintercourse Act. 

The Court of Appeals, Butzner, Senior Cir-

·cuit Judge, held that Catawba Indian Tribe 

.Division of Assets Act did not ratify 1840 

treaty with South Carolina by which tribe 

gave up 144,000 acres granted it by treaties 

of 1760 and 1763, did not extinguish tribe's 

existence, did not terminate trust relationship of tribe \~;th federal government arising out of Indian Nonintercourse Act, and 

did not make South Carolina statute of 

limitations applicable to tribe's claim to 

land allegedly granted to State in 1840 

treaty in violation of Nonintercourse Act 

Reversed and remanded. 

K.K. Hall, Circuit Judge, dissented and 

filed opinion. 

1. Indians ¢::::> 33 

To establish prima facie case for violation of Indian Nonintercourse Act, tribe 

must prove foor elements: that it is or 

represents an Indian tribe within meaning 

of Act; that land in issue is covered by Act 
536 

1292 718 FEDERAL REPORTER. 2d SERIES 

as tribal land; that United States has never 

approved or consented to alienation of tribal land; and that trust relationship between 

United States and tribe, established by coverage of Act, has never been terminated or 

abandoned. 25 U.S.C.A. § 177. 

2. Indians e::>6 

Statutes that affect Indian tribe should 

not be construed to Indians' prejudice. 

3. Indians 4=>3 

Congressional intent to abrogate or 

modify a treaty right must be clearly expressed, and doubtful expressions are to be 

resolved in favor of Indians. 

4. Indians e::> 2, 3 

Catawba Indian Tribe Division of Assets Act did not ratify 1840 treaty with 

South Carolina by which tribe gave up 144,-

000 acres granted it by treaties of 1760 and 

1763, did not extinguish tribe's existence, 

did not terminate trust relationship of tribe 

with federal government arising out of Indian Nonintercourse Act, and did not make 

South Carolina statute of limitations applicable to tribes' claim to land allegedly 

granted to state in 1840 treaty in violation 

of Nonintercourse Act. 25 U.S.C.A. 

§§ 931-938; SDCL 1!)...3...340; 25 U.S.C.A. 

§ 177. 

5. Indians 4=>33 

Indian Nonintercourse Act creates 

trust or fiduciary relationship between federal government and tribe somewhat akin 

to relationship of guardian and ward. 25 

U.S.C.A. § 177. 

6. Indians 4=>33 

Trust relationship between federal 

government and Indian tribe created by 

Indian Nonintercourse Act exists even 

though federal officials charged with supervision of Indian Affairs disclaim any responsibility for the tribe. 25 U.S.C.A. 

§ 177. 

7. Indians 4:> 33 

Absence of federally recognized tribal 

government and exercise of state jurisdiction over tribe and its members neither 

I. For convenience, we will refer to the appeldis.~olvcs trust relationship between federal 

government and tribe arising out of Indian 

Nonintercourse Act, nor renders Act inapplicable to tribe's claims. 25 U.S.C.A. 

§ 177. 

8. Indians =:>33 

Congress may terminate trust relationship between federal government and Indian tribe arising out of Indian Nonintercourse Act, thus abrogating federally recognized right of tribe to its occupancy of 

reservation lands, but its intention to do so 

must be plain and unambiguous to l>e effeetive; doubtful expression of legislative intent must be resoh·.xi in favor of Indians. 

25 U.S.C.A. § 17i. 

Don B. Miller, ~ative American Rights 

Fund, Boulder, Coio .. Jean H. Toal, Columbia, S.C. (Belser, Baker, Barwick, Ravenel, 

Toal & Bender, Columbia, S.C., Robert M. 

Jones, Rock Hill. S.C., Mike Jolly and Richard Steele, Union, S.C., on brief), for appellant. 

James D. Sl. Clair, Boston, Mass. (James 

L. Quarles, III, William F. Lee, David H. 

Erichsen, Hale & Dorr, Boston, Mass., on 

brief) and John C. Christie, Jr., Chicago, Ill. 

(J. William Hayton. Stephen J. Landes, Lucinda 0. McConathy, Bell, Boyd & Lloyd, 

Chicago, Ill., J.D. Todd, Jr., Michael J. 

Giese, Gwendolyn Embler. Leatherwood, 

Walker, Todd & ~!ann, Greenville, S.C., Dan 

M. Byrd, Jr., Mitchell K. Byrd, Byrd & 

Byrd, Rock Hill, S.C., T. Travis Medlock, 

Atty. Gen., Kenneth P. Woodington, Asst. 

Atty. Gen., State of S.C., Columbia, S.C., on 

brief), for appellees. 

Before HALL and SPROUSE. Circuit 

Judges, and BL'TZNER, Senior Circuit 

Judge. 

BUTZNER. Senior Circuit Judge: 

The Catawba Indian Tribe of South Carolina appeals from the district court's grant 

of summary judgment in favor of South 

Carolina and 76 other defendants} The 

lees collectively ~s South Carolina. 
537 

CATAWBA INDIAN TRIBE OF S.C. v. STATE OF S.C. 1293 Cl<e0i718F.2cl1251 (1M3) 

court held lhal the Galawha Indian Trihe 

Division of As.o;ct.s Act. 25 U.S.C. §§ S3l-3H, 

and the Soulh Carolina statute of limitations, S.C.Code Ann. § 15-3-340 (Law.Coop.l976), barred the TriiJc's claim to land 

allegedly grant.cd to lhe state in 1840 in 

violation of lhe Indian Nonintercourse Act, 

25 U.S.C. § 177. We reverse and remand 

for further proceedings on the merils of lhe 

Tribe's claim. We hold only thatti1e gr.1nt 

of summary judgment. cannot be sustained. 

For the purpose of ruling whether summary 

judgment. was appropriate, we have assumed without deciding, as did the district 

court, that disputed facls on which the 

Tribe relies are true. 

Long before English and European settlers came to North America, the Catawba 

Tribe occupied ils aboriginal territory in 

what is now parts of North and South Carolina. In the 1760 Treaty of Pine Tree Hill 

between the Tribe arid the King of England's Superintendent for Indian Affairs, 

the Tribe relinquished ils aborigin:?-1 territory in exchange for being quietly and permanently settled on a 144,000 acre tract. 

The Tribe protested that England had • 

failed to carry out the terms of the 1760 

treaty and reasserted a right to its aborigi- • 

nal territory. In 1763, the Tribe entered 

into the Treaty of Augusta with the King's 

representatives. In exchange for relin2. The 1763 Treaty of Augusta provides in relevant part: • 

And We the Catawba Head Men and War· 

riors in Conformation 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 Sur· 

vey 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 compleated and 

that the Catawbas shall oot in any respect be 

molc~ted by any of the King's subjects within 

the said Unes but shall be indulged in the 

usual Manner of hunting Elsewhere. 

XI ColonUJ Re<:Dl'ds of North Cuolina., at 201-

02. The tract lies at the oorthero border of 

South Carolina in York. lancaster, and perhaps 

Chester counties. The precise boundaries are 

•tuishing its alxlriJ.,rinal territory. the Trihc 

again agreed to he sclliL~I un a 1+4.000 acre 

tr.J.ct in South Carolina.2 En~land fulfill(.'tl 

the terms of this treaty. 

After the Revolutionary War, South Carolina initially recognized the Treaty of Augusta. There was incrc:1.~ing pre:;surc from 

settlers, however, who wished to move onto 

the Tribe's land. By the 1s:JOs, nearly all of 

the Tribe's land had been leased to non-Indians pursuant· to state statutes. South 

Carolina then began to negoti'lte with the 

Tribe to- purchase its. land. These efforts 

culminated in 1840 in the Treaty of Nation 

Ford in which the Tribe gave up the 144,000 

ac~ granted by the treaties of 1760 and 

1763. In exchange South Carolina promised to spend $5,000 to acquire a new reservation, $2,500 cash in hand, and yearly payments of $1,500 for nine years. The United 

States was not a party to and did not 

participate in the Treaty of Nation Ford. 

In 1842 South Carolina purchased a 630 

acre tract for $2,000 as a new reservation 

for the Tribe. This land continues to be 

held in trust for the Tribe by South Carolina as an Indian reservation.1 

In the early 1900s, the Tribe sought to 

have the federal go,·ernment assume responsibility for its welfare. These efforts 

resulted in a 1943 Memorandum of Understanding between the Tribe, the federal 

government, and South Carolin~4 In acuncertain because of· the deficiencies of the 

survey. 

3. See Op. Att"y ~n. S.C., No. 398S (Mar. 6, 

1975). 

4. The federal government refused to include a 

clause in the 1943 Memorandum that would 

have specifically extinguished any claims the 

Tribe migh~ have based on the 1760 and 1763 

treaties. In a "formal expression of opinion," 

the solicitor of the Department of the Interior 

stated that elimination of the clause was "most 

desirable in that it avoids a procedure of doubt· 

ful legality which would have consisted in using a contract under the Johnson.()"Malley Act 

in order to deprive the Indian tribe of claims 

which it might be able to enforce in the 

courts." Memorandum for the Conunissioner 

of Indian Affairs from the Solicitor of the Department of the Interior, undated, at 3. See 

also Letter of the Assistant Commissioner of 
538 

1294 718 FEDERAL REPORTER. Zd SF.RIE..'l 

cordancc with this agreement, the stale 

purchased 3,434 acres of land and conveyed 

it in trust for the Tribe to the U nitcd 

States. In addition, the United State."> 

agreed to provide economic development assistance to the Tribe, and the Tribe agrL'Cd 

to organize to conduct its business on the 

basis of the federal government's recommendations. 

With the advent of the termination era in 

1953,5 the federal government designated 

the Tribe as a likely candidate for the withdrawal of federal services. Federal assistance during the previous decade had been 

minimal. In addition, members of the 

Tribe desired an end to federal restrictions 

on alienatior: in order to facilitate financing 

for farm operations, homes, and improvements on the 3,434 acre reservation. 

Efforts at securing the withdrawal of 

federal :;ervices began in earnest in 1958 

and resulted in the enactment in 1959 of the 

Catawba Indian Tribe Division of Assets 

AcL 6 The Act became effective in 1962, 

and the 3,434 acre reservation, which had 

been acquired pursuant to the 1943 Memorandum of Understanding, was distributed 

among tribal members, either as land or as 

proceeds from its sale. 

Indian Affairs to the State Auditor of South 

Carolina. dated Aug. 28. 1941. 

5. "Tennination era" refers to the federal poliay 

from 1953 to the mid-1960s of ending the feder· 

al government's supervisorY responsibilities for 

Indian tribes. See F. Cohen. Handbook of Fed· 

eral Indian Law 152-80 (R. Strickland ed. 1982) 

(cited as Cohen. Federal Indian Law (1982) ). 

6. 73 Stat. 592, 25 U.S.C. §§ 931-938. The Act 

provides for the preparation of a tribal mem· 

bership roll. the tribal COWicil' s designation of 

sites for church, park, playground, and cemeterY purposes, and the division of remaining 

assets among the enrolled members of the 

tribe. 

Sections 935 and 936, with which this litigation is particularly concerned, provide: 

§ 935. The cnnstitution of the tribe adopt· 

ed pursuant to sections -461, -462, 463, 464, 

465, 466 to 470, 471 to 473, 474, 475, 476 to 

4 78, and 479 of this title shall be revoked by 

the Secretary. Thereafter, the tn'be 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 

II 

In !9g() the Trihc brought suit against 

South Carolina and the other defendants. 

It claims it acquired a ve.~tetl properly right 

in the 144,000 acre reservation ~,rranted the 

Trihe in the 1760 and 1763 treaties and that 

upon our nation's independence these lands 

C."lmc within the scope of the fetleral program for the proll.'Ction of Indian lands. 

Consequently, the Trihc asserts the 1840 

TrP.aty of Nation Ford, whereby South Carolina purported to acquire the 144,000 acres, 

is void because the United States did not 

participate in or consent to the alienation of 

the Tribe's reservation as required by the 

Indio.n Noninlcrcour.;e AcL7 The Tribe 

seeks to he restored to pos:;ession of its 

reservation as well a.; trespass damages for 

the entire p:!riocl of its dispossession. 

South Camlina argues the 1959 act of 

Congress bars the Tribe's claim. It conlends that § 935 ~ terminates the Tribe, 

ends any trust relationship between the 

Tribe and the federal government, and 

makes state law applicable to the Tribe's 

claim. The state also argues that the legislative history supports this interpretation 

and indicates Congress intended tc ratify 

the 1840 Treaty. 

Indians. all statutes of the Uni:ed States that 

affect Indians because of their status as Jndi· 

ans shall be inapplicable tc 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. 

§ 936. Nothing in this subchapter shall 

affect the rights. pri,ileges. or obligations of 

the tribe and its members under the laws of 

South Carolina. 

7. 25 U.S.C. § 177 (originally enacted as Act 

of July 22. 1790, ch. 33, § 4, I Stat. 138). 

The Act states in relevant part: "No purchase, grant. lease, or other conveyance of 

lands. or of any title or claim thereto. from 

any Indian nation or tribe of Indians, shall be 

of any validity in law or equity, unless the 

same be made by treaty or convention entered into pursuant to the Constitution." 

Transactions in violation of the Nonintercourse Act are void. Cohen. Federal Indian 

Law 512 (1982). 

8. See supra note 6. 
539 

CATAWBA INDIAN TRIBE OF S.C. v. STATE OF S.C. 1295 Cl1< os 718 F.2d 1291 (1,831 

The Tribe counters hy arguing that§ 935 sovereign, could he LCrminated only hy 

on its face only terminates federal services sovereign acL Once the l.J nited Swtcs 

to the tribe and makes state law applicahle wao; organiz(.'<i and the C<mstitution 

to the indi-•idual Indians, not to trihal a1loptcd, these trihal righL~ to Indian 

claims. Furthermore, it argues the text lands lx.>camc the cxdu i,·c province of 

and legislative history indicate Congrcs.o; the fL'<ieral law. lnoian title, recognizeo 

only intended to end the federal relation- to be only a ri~ht of occupancy, was 

ship with the Tribe created by the 1943 extinguishable only hy the United States. 

Memorandum of Understanding and did not The Federal Government tcok early steps 

intend to affect any tribal claims arising to deal with the Indians through treaty, 

out of the 1760 and 1763 treaties. the principal purpose often being to rccOn cross-motions for summary judb"lllent, ognize and guarantee the rights of lndithe district court assumed, without decid- ans to specified areas of land. . . . The 

ing, that prior to 1959 the Tribe was a United States also asserted the primacy 

"tribe" within the meaning of the Noninter- of federal law in the first Nonintercourse 

course Act; that the 1760 and 1763 treatie. Act passed in 1790, 1 StaL 137, 138, which 

granted the Tribe some interest in the land provided that "no sale of lands maJe by 

in issue; that the land was covered by the any Indians . . . within the Cnited 

Nonintercourse Act; ami that prior to 1959 States, shall be valid to any person ... or 

the United States neither approved, rati- to any state ... unless the same shall be 

fied, nor consented to the 1840 Treaty of made and duly executed at sorne public 

Nation Ford. The court also assumed that 

treaty, held under the authority oi the a trust relationship existed between the United States." This has remained the 

Tribe and the United States at least up to 

1959. policy of the United States to this day. 

The district court granted South Caroli- (footnote omitted) 

na's motion for summary judgmenl It [1] To establish a prima facie case ior a 

held that the 1959 Act extinguished the violation of the Nonintercourse Act. the 

Tribe's existence: ratified the 1840 treaty; Tribe must p~ove four elements: (1) that it 

terminated the trust relationship between • is or represents an Indian t~ibe ";thin the 

the Tribe and the federal government; and' meaning of the Nonintercourse Act: (2) 

made state law applicable to the Tribe's that the land in issue is covered by the 

claim. It then held that the state statute of Nonintercourse Act as tribal land; (3) that 

limitations barred the claim. the United States has never appro,·ed or 

III 

In Oneida Indian Nation v. County of 

Oneida, 414 U.S. 661, 667~. 94 S.Cl 772, 

777, 39 L.Ed.2d 73 (1974}, the Supreme 

Court reiterated the nation's policy with 

respect to lands occupied by Indians: 

It very early beeame accepted doctrine 

in this Court that although fee title to the 

lands occupied by Indians when the oolonists arrived beeame ves~ in the sovereign-first the discovering European nation and later the original States and the 

United States-a right of occupancy in 

the Indian tribes was nevertheless recognized. That right, sometimes called Indian title and good against all but the 

consented to the alienation of the tribal 

land; and (4} that the trust relationship 

between the United St.J!.tes and the tribe, 

established by coverage of the Nonintercourse Act, has never been terminated or 

abandoned. Epps v. Andrus, 611 F .2d 915, 

917 (1st Cir.1979); Narragansett Tribe of 

Indians v. Southern R.I. Land Dev. C<Jrp., 

418 F .Supp. 798, 803 (D.R.I.1976}. 

The district oourt assumed these elements 

existed until the enactment of the Catawba 

Indian Tribe Division of Assets Act of 1959. 

Thus, the principal issue is whether the 1959 

Act precludes the Tribe from rel).ing on the 

Nonintercourse Act and subjects its claim 

to the South Carolina statute of limitations. 
540 

1296 718 FEDERAL REPORTER, 2d SERIES 

IV In January 1959. the Trihe adopted a resof2, 3) In considering the effect of the lution, drafted hy the Bureau, which re1959 Act on the Tribe's claim, we must he quest<.•l the remo,·al of federal restrictions 

mindful of the canons of construction the on their 3,4:M acre re:<l!n·ation. The resoluSupreme Court has enunciaLL'tl for use in 

construing statutes that affect Indian 

tribes. Such statutes should not he construed to the Indians' prejudice. Congressional intent to abrogate or modify a treaty 

right must be clearly expressed, and doubtful expressions are to be resolved in favor 

of the Indians. See Antoine v. Washington, 

420 U.S. 194, 199-200, 95 S.Cl 944, 948, 43 

L.Ed.2d 129 (1975); Mattz v. Arnett, 412 

U.S. 481, ~. 93 S.CL 2245, 2257-58, 37 

L.Ed.2d 92 (1!173); Menominee Tribe of Indians v. UniU.dStaU!s, 391 U.S. 404,412-13, 

88 S.Cl 1705, 1710-11, 20 L.Ed.2d 697 

(1968). 

tion specific:illy conditioned tribal support 

of di,·ision of <L<.<cts legislation on leaving 

the treaty re..-;cr\"ation claim unaffected: 

Now, therefore. BE IT RESOLVED that, 

in \'iew of the benefits that will accrue to 

all of the members of the tribe by the 

C(jUilahle distribution of the triiJal assets, 

its General Council . . . hereby formally 

requests [our Congres.~man] to introduce 

and secure passage of appropriate legislation to accomplish the remo,·al of Federal 

restrictions against the alienation of Ca-

. tawba land, in York County, South Carolina, so that it can be patented, ... and 

that nothing in this legislation shall affect the status of anr claim against the 

Both sides present plausible arguments to State of South Carolina IJy the Catawba 

support their reading of the 1959 Act in Tribe. (empha;;i;; acicic;i) 

which they rely in part on the Act's legisla- The Congressman then requested the Butive history in order to discern Congress's reau to draft lcgi::lation ''to accomplish the 

intenl We conclude that it is appropriate desires set forth in the P..csolution." to The 

to examine the legislative history and sur- Congressman presentcri the draft bill to the 

rounding circumstances in order to construe Tribe two months later. again saying it 

the Act properly. See Mattz v. Arnett, 412 "carr(ied] out thE: intent of the resoluU.S. 481,505,93 S.Ct 2245,2258, 37 L.Ed.2d tion." II The Trib<: then appro\·ed the bill 

92 (1973). • and it was introdu~ed in Congress on April 

The process toward passage began in late·· 7, 1959. 

1958 when Bu!'eau of Indian Affairs offi- The House and S.,nate committee reports 

cers met tribal members. An Indian ex- on the bill are similar. Both state: "The 

pressed concern about the Tribe's treaty • purpose of (the bill] is to pro,·ide for the 

reservation claim against South Carolina, division of the asset..5 of the Catawba Indian 

but the Bureau officer assured him "that Tribe of South Carolina among its enrolled 

. any claim the Catawbas had against the members in approximately equal shares." u 

State would not be jeopardized by carrying In addition, the reports quote from a Deout a program with the Federal Govern- partment of the Interior recommendation 

ment" for the distribution of tribal assets.' which states: 

9. Memorandum of Jan. 30, 1959, from a Program Officer to the Chief of the Branch of 

.Tribal Programs of the Bureau of Indian Af. · fairs, at 7. 

For a number of years, South Carolina and 

the Tribe have unsucussfully negotiated to set· 

tie the Tribe's claim. See, e.g., Letter from the 

Assistant Commissioner of the Bureau of lndi· an Affairs to the Chief of the Catawba Tribe, 

dated Feb. 3, 1937; Letter from the Assistant 

Commissioner of the Bu.-eau of Indian Affairs 

to the State Auditor of South Carolina, dated 

Feb. 3, 1937. See generally U.S. Comm'n on Civil Rights, Indian Trib6 117-18 (1981). 

I 0. Letter from the Congressman to the Legisla· 

tive Associate Commissioner of the Bureau of 

Indian Affairs, dated January 26, 1359. 

II. Minutes of Meeting of the Cata.,..-ba Council 

held March 28, 1959. at 2. 

12. S.Rep. No. 863, ~5th Cong., 1st Sess. I 

(1959); H.R.Rep. No. 910, 86th Cong., 1st Sess. 

1 (1959), reprinced in 1959 U.S.Code Cong. & 

Ad.News 2671, 2672. 
541 

CATAWBA INDIAN TRIBE OF S.C. v. STATE OF S.C. 1297 a •• as 7Jd F.Zd 1n1 (1983) 

In accordance with the [1943) memorandum of understanding, the Stale 

bought 3,434.3 acres of land for the Catawbas and ... conveyed the land t.o the 

United States in trust for the tribe. It is 

this land and the aecumulated assets 

from operating it that will be conveyed 

under the provisions of the bi)l.ll 

The bill was signed by President Eisenhower on September 21; 1959, and became 

effective in 1962. At that time, the Department of the Interior informed the Tribe of 

the revocation of its constitution, the trailsfer of jurisdiction to the state, and the 

termination of the 1943 Memorandum of 

U ndcrstanding. 14 

(4] Viewed in itS entirety, we believe 

the legislative history of the 1959 Act fails 

to suggest any congressional intent to affect any claim the Tribe might have against 

South Carolina. Rather, the legislative history and text of the Act indicate it was 

intended only to end federal supervision 

and assistance arising out of the 1943 Memorandum of Understanding. Although the 

House and Senate reports show Congress 

was aware of the 1840 Treaty, there is no 

explicit or implicit indication of any desire 

to extinguish any tribal claims against" 

South Carolina. In fact, the Act's history 

suggests a congressional intent not t.o affect any such claims. The Tribe conditioned introduction of the Act on leaving 

the treaty reservation claim unaffected, 

and the Act's congressional sponsor stated 

it was designed to accomplish the Tribe's 

desires as expressed in the tribal resolution. 

We therefore cannot accept the district 

court's interpretation of the 1959 Act as 

ratifying the 1840 Treaty. The Act does 

not expressly ratify il There also is no 

mention of the 1760 and 1763 Treaties, by 

which the Tribe received the 144,000 acres 

in issue. Thus, the district court's construction of the Act is contrary to the requirement that cor.gressional intent to terminate 

a treaty reservation must be clear. See 

13. S.Rep. No. 863, 86th Cong., 1st Sess. 3 

(1959); H.R.Rep. No. 910, 86th Cong., 1st Sess. 

3 (1959), reprinted in 1959 U.S.Code Cong. & 

Ad.News 2671, 2673. 

D<.'Cotcau v. District Count_J• Court, 420 U.S. 

42.'i, 444 , 95 S.CL 1082. 1092, 43 L.Ed.2d 300 

(1975). 

\' 

Es.~cntial clements of a cause of action 

under the Nonintercourse Act arc proof 

that the complainant is an Indian tribe and 

that it has maintained a trust relationship 

with the Ceded government. Th'! district 

court assumed that the Catawbas satisfied 

these requirements before 1959, but it concluded that the Division of Assets Act terminated the Tribe's existence. The court 

also held that the Act terminated the 

Tribe's trust relationship with the federal 

government with respect t.o the Nonir.tercourse Act. In support of the district 

court's decision, South Carolina emphasizes 

that the 1959 Act re,·oked th(: Tribe's constitution. 

The authoritative commentary, Cohen, 

Federal Indian Law 815 (1982), explains the 

effect of termination on tribal status: 

Termination legislation did not literally 

terminate the existence of the affected 

tribes. Further, its effect was not necessarily to terminate all of the federal 

government's relationship with those 

tribes. Tribal powers can be extinguished only by clear and specific C'lngressional action. Indian tribes can be 

recognized by the United States for some 

purposes and not for others. (footnotes 

omitted) 

Cohen's explanation is fully supported by 

cases that have considered this issue. See, 

eg., Menominee Tribe of Indians v. United 

States, 388 F.2d 998, 1~1. 179 CLCI. 496 

(1967), aJrd, 391 U.S. 404, 88 S.CL 1705, 20 

L.Ed.2d 697 (1968) (by implication); Kimball v. Ca/lahan, 590 F.2d 768, 773-75 (9th 

Cir.l979). 

Revocation of the Tribe's constitution did 

not terminate the Tribe. The tribal constitution was adopted pursuant to 25 U.S.C. 

14. See Letter from the Secretary of the Depart· 

ment of the Interior to the Chief of the Cataw· 

ba Tribe, dated June 15, 1962. 
542 

1298 718 FEDERAL REPORTER. 2d SERIES 

§ 476 IS and the 194:3 Memorandum of 

Understanding. IL~ revocation is consistcr.t 

with the termination of fcdera.l assistance 

arising out of that Memorandum. As Y:e 

mcnLion<..~l in note 4, supra, the fc'<leral 

government on advice of the Solicitor of the 

Department of I ntcrior refused to include a 

clause in the 1943 Memora.ndum of Understanding that would have extinguished any 

claims the Tribe might have based on i.he 

1760 and 1763 treaties. The constitution 

was adopted to implement the Memorandum of Understanding. Consequently, it 

would be illogical, and indeed ironic, to 

hold, as South Carolina urges, that Congress intended revocation of the C'onstitution to defeat the same trea~y claims that 

the parties to the Memorandum of Understanding had refused to extinguish. 

The Supreme Court has defined a "tril><'" 

as "a body of Indians of the same or a 

similar race, united in a community under 

one le::~dership or government, and inhabiting a particular though sometimes illdefined territory .... " Montoya v. United 

States. 180 U.S. 261, 266, 21 S.CL 358, 359, 

45 L.Ed. 521 (1901). The Court has applied 

this definition to bring within the scope of 

the Noniatercourse Act a tribe of Ir.dians 

that did not have a federally recognized 

form of government. See United States v. 

Candelaria, 271 U.S. 432, 441-42, 46 S.Ct. 

561, 562-63, 70 L.Ed. 1023 (1926). See also 

Cohen, Federal Indian Law 18 {1982) ("any. 

continuing organiz::.tion, however informal, 

would deny the abandonment of tribal existence"). Despite revocation of the tribal 

constitution, the Catawba Tribe continued 

as a body of Indians, united in a community 

under one leadership, and inhabiting a particular territory. Indeed, South Carolina to 

this date recognizes the Tribe's existence by 

continuing to hold a 630 acre reservation in 

trust for il16 

Any doubt about the effect of the 1959 

Act on the Tribe's existence is put to rest 

15. "Any Indian tribe, or tribes, residing on the same reservation, shall have the right to organize for its common welfare, and may adopt an 

appropriate constitution and bylaws .... " 

This provision was enacted in order to encourage revitalization of tribal self-government 

by reference to iL' text. The Act provides 

for a final roll of the membcrohip of the 

Tribe for the riisposition of iL-; assets. I~ 

authoriws the tribal council to designate 

any part of the Tribe's land that is to be set 

asirie for church. park. plan,>Tnund. or cemetery purposes. 2-'i U.S.C. §§ 931 and 933. 

furthermore. it pro1·idc:s that nothing in 

the Act shall aff<.>ct the rights, privileges, 

and obligations of the Trill<! under the laws 

of South Carolina. 25 U.s.c: § 936. Clearly, the Congress did not intend the Division 

of Assets Act of 1959 to end the Tribe's 

existence. 

We also hold that the 1959 Act did not 

end the trust relationship between the 

Tribe and the federal government. "The res 

of this trust is the Trilx!'s reservation, 

which was created hy the Treaty of Pine 

Tree Hill in 1160 and the Tr~:aty of Augusta 

in 1763 with the English Crown. When the 

Nonintercourse Act was enacted some 27 

ye:1rs later. these treaties were in effect. 

The Trilx!'s right of occupancy, conferred 

uy the treatie;, was honored by the united 

Slates which had succeeded to the rights 

claimed by the English Crown, and the 

Tribe's right of occupancy could be abrogated only by the federal go1•e rnment. Oneida 

Indian Nation ,._ Counr1· of Oneida, 414 U.S. 

661, 667-70. 9_. S.Ct. ~IZ. 777-iS. 39 L.Ed.2d 

73 (1974); L'nired Swes ,._ Sanca Fe Pacific 

R.R., 314 li.S. 339, 3-15-47, 62 S.Ct. 248, 

251-52, 86 L.Ed. 260 {1941); Worcester v. 

Georgia, 31 C.S. (6 PeL) 515, 559, 8 L.Ed. 

483 (1832); Johnson ,._ Mcintosh, 21 U.S. (8 

Wheat) 543, 586, 5 L.Ed. 681 (1S23). 

(5-7] The purpose of the !\onintercourse 

Act was to assert the primacy of federal 

law and to acknowledge and guarantee the 

Tribe's rights of occupancy to their lands. 

See Oneida Indian Sation, 414 U.S. at 667, 

94 S.Ct at Ti7; Santa Fe Pacific R.R., 314 

U.S. at 348, 62 S.Ct. at 252. The Nonintercourse Act creates a trust or fiduciary relathrough the adoption of more formal govern· 

mental procedures. See Mescalero Ap4che 

Tribe v. Jones. 411 U.S. 145, 151-52. 93 S.Ct. 

1267, 1271-72. 36 L.Ed.2d 114 (1973). 

16. See supra note 3 and accompanying text. 
543 

CATAWBA INDIAN TRIBE OF S.C. v. STATE OF S.C. 1299 Cll• as 71H F.2d 1291 (198J) 

tionshitl bctWL'Cn the r~.~lcral government provision of the 1959 Act applies only to 

and the tribe somewhat akin to the rcla- individual Indians and not to the CaL;wha 

tionship of guardian and ward. Joi.1L Tri/1- Trihe. The applicability of the Nonintcral Council of Lhc Passamaqu()(idy Tribe v. course Act to the righL~ of the Tribe. they 

Morton, 528 F.2d 370, 379 (1st Cir.l975). a."-~rt, was not affected. 

Passamaquoddy establishes that a trust relationship cre.:t.cd by the Nonintercour.:;c 

Act exists even though federal officials 

charged with supervision of Indian Affairs 

disclaim any responsibility for the Tribe. 

Passamaquoddy also establishes that the absence of federally recognized tribal government and the exercise of state jurisdiction · 

over a tribe and its members neither dissolves the trust relationship arising oct of 

the Nonintercourse Act nor renders the Act 

inapplicable to the tribe's claims. 

[8] CongresS, of course, may terminate 

the trust relationship, thus abrogating the 

federally recognized right of the tribe to its 

occupancy of reservation lands, but its intention to do so must be plain and unambiguous to be effective. See DeCoteau v. 

United States, 420 U.S. 425, 444, 95 S.Ct 

1082, 1092, 43 L.Ed.2d 300 (1975); Santa Fe 

Pacific R.R., 314 U.S. at 346, 62 S.Ct. at 251; 

Passzmaquoddy, 528 F.2d at 380. Doubtful 

expressio · of legislative intent must be 

resolved in favor of the Indians. DeCoteau, 

420 U.S. at 444, 95 S.Cl at 1092. -

In support of its contention that the Divlsion of Assets Act of 1959 terminated both 

the existence of the Tribe and its trust 

relationship with the federal government, 

South Carolina particularly relies on the 

clause in 25 U.S.C. § 935 which provides: 

[T]he 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. 

South Carolina argues that this provision 

included the withdrawal of the protection 

conferred on the Tribe by the Nonintercourse AcL The Catawbas insist that this 

The legislative histories of hoth the Nonintercourse Act and the 1959 Act, and Supreme Court precedent, support the position 

of the Catawbas. Although the terms "Indians" and "Indian tribes" frequently have 

been used interchangeably in various contexts, the distinction is critical when the 

application of the Nonintercourse Act is an 

issue. Initially the Act applied to bot!: Indians and Indian tribes. Later, h.:>wever, 

Congress deleted the refer~nce to Indians. 

See 4 StaL 730-31 (1834). Henceforth, the 

Nonintercourse Act afforded protection 

only to the lands of r ndian tribes. \V e do 

not feel free to assume that Congress was 

unaware of this distinction. We cannot attribute to Congress an intention to bar bv 

the 1959 Act the Catawba's claim to trib;l 

lands. By providing that "a!! statutes of 

the United States that affect indians because of their status as Indians shall be 

inapplicable to them," we conclude that 

Congress did not intend to render i:Japplicable the Nonintercour$e Act which b\' its 

teqns applied to Indian tribes. As we -have 

pointed out, the Catawbas had been assured 

by a representative of the Bureau of Indian 

Affairs and the congressional sponsor of the 

1959 Act that their resolve to preserve their 

claims against South Carolina would not be 

affected by the AcL We will not impute to 

Congress an intent to circumvent these assurances by implicitly enlarging the term 

"Indians" to embrace the "Catawba Indian 

Tribe." 

Precedent supporting the Catawbas is 

found in Menominee Tribe of Indians v. 

United St.?.tes, 391 U.S. 404, 88 S.CL 1705, 

20 L.Ed.2d 697 (1968). In that case the 

question .;;·ose whether the Menominee Termination Act of 1954 abrogated the Tribe's 

fishing and hunting rights conferred by a 

treaty in 1854. The Court held that the Act 

did not have this effect, saying at 412-413, 

88 S.CL at 1710-1711: 
544 

1300 718 FEDERAL REPORTER. 2d SF.HIF_.:; 

The Termination Act by its terms prm·idl!d for the "orderly termination of rcderal supen·i$ion over the property and 

memlH!r.>" of the tribe. 25 U.S.C. § 891. 

(Emphasis added.) The Federal Government ceded to the Slate of Wisconsin il~ 

power of SU!H!rvision over the tribe and 

the reservation lands, as evident from the 

provision of the Termination Act that the 

laws of Wisconsin "shall apply to the 

tribe and its members in the same manner as they apply to other citizens or 

persons within [its] jurisdiction." 

applic:thle to the Trih,!·~ daim. the rlist..rict 

court went on to hold that the s~tle statute 

barred the daim. 

Section !l:lfi ,.~plicitly pro, idl'~ that nothing in the Act ;hall aff eel the rig-hL~ of the 

Tribe under the laws nf South CarolinaY 

For the pUf!K'"'-' nf the ,;ummary judgment 

enlcrL~I hy the district court, it '>l·as assumL'II lha~ pric•r to tile enactment of the 

Division of As:;cL~ Act in 1959 the South 

Carolina statute of limitation~ clio not affect the right of the Trihc to claim its tribal 

rcserva~ion. Con5C(juently, it is incongruous to say, despite§ 936. that the 1959 Act 

clicl affect this right hy allowing application 

nf the state statute of limit..ations to bar the 

claim. Yet this is precisely ,,·hat the district court rlicl througit iL.; int.crpretation of 

the 1959 Act. 1

' The 1959 Act neither prohihil~ nor auchorizc;: the appl:cation of state 

law to har the Trihc·; rescr.·ation claim. 

The provision of the Termination Ac:. 

(25 U.S.C. § 899) that "all statutes of the 

United States which affect Indians because of thE:ir status as Indians shall no 

longer ~ applicable to the members of 

the tribe" plainly refers to the termination of federal supervision. The usc of 

the word "statutes" is potent evidence 

that no treaty was in mind. 

We decline to construe the Termination We cannot :!c-c-cpt the district court'~ inAct as a back-handed way of abrogating terpret..;1tion of <he 19.59 Act. Consequentthe hunting and fishing rights of these ly. it..s decisio n that th~ sLate statute of 

Indi:;ns. While the power to abrogate limitations ba!·o the Tril~·s claim must be 

those rights exists ... "the intention to set aside. Th~ :\onintcrcourse .\ct and the 

abrogate or modify a treaty is not to be supremacy clauc<t: preempt ~Late law defen~­

lightly imputed to the Congress." cs, such as a<h·.:rsc po:;;cssion or statutes of 

- limitation, which m'ght other"·i:;e preclude 

There is no explicit or clear implicit indi-_ the Tribe's ;uit. See .\fohcgan Tribe , .. cation in the 1959 Act that Congress intend- C Connecticut, 6.'3.3 F.2d 612. 61-l-15 (2d ir. 

ed to terminate the relationship arising out 1981); Uniu::d St.1 te.; , .. 7,405.3 .-\ere.; of 

of the Nonintercourse Act's application to_ Land, 97 F.2d ;, 4Z2 (~th Cir.1938). 

the lands granted by the 1760 and 1763 

Treaties. Furthermore, in at least one simil::r act, Congress clearly terminated the federal trust relationship with respect to the 

affected tribe, something it did not do in 

the 1959 Act. Compare 25 U.S.C. § 935 

(Catawba Tribe, no explicit termination) 

with 25 U.S.C. § 980 (Ponca Tribe, explicit 

termination). 

VI 

Having concluded that the 1959 Act made 

the South Carolina statute of limitations 

17. S"" supra note 6. 

18. The district court held: 

Because [§ 935] of the Catawba Act explicit· 

ly made state law applicable to the Catawbas 

and the termination of the trust relationship 

i'II 

We concludt: that the Catawba Indian 

Tribe Division of Assets Act of 1959 did not 

ratify the 18-W Treaty, extinguish the 

Tribe's existence, terminate the trust relationship of the Trihe with the federal 

government arising out of the ~onintercourse Act, or make the state st..atute of 

limitations applicable to the Tribe's claim. 

In short, the 1959 Act is neutral with respect to . t:,e Tribe's reservation claim. It 

accomplished the same result. South Caroli· 

na's statute of limitations began to run 

against any daim the Catawbas or the plain· 

tiff may ha,·e had on July I. 1962. the date 

the Catawbas· consmution was revoked. 
545 

CATAWRA INDIAN TRIRE OF S.C. v. STATE OF S.C. !301 01• u 71R F.2d 1271 (1983) 

neither confirms the daim nor extinl!uishcs 

it.. 

The jwlbrmcnt of the district court is reversed, and the case is remanded for entry 

of an order clenying the defendants' motion 

for summary juclgrnenl and for further proceedings consistent with this opinion. 

K.K. HALL, Circuit .Judge, dissenting: 

I cannot accept the majority's conclusion 

that the district court erred in granting 

defendants' motion for summary judgment 

and in dismissing pl~intiffs action. In my 

view, the 1959 Catawba Indian Tribe Division of Assets Act, 25 U.S.C. § 931 :!t seq., 

unquestionably terminated the Tribe's leg-... 1 

existence, ended any trust relationship between the Catawbas and the federal 

government, and made South Carolina law 

fully applicable to whatever claim plaintiff 

may have had to the Tribe's ancestral land. 

l agree with the district court that plaintiff's claim, if v:d:d at all, i~ i:J any event 

barred by South Carolina's statute of limitations governing real property. I must, 

therefore, dissenL 

Plaintiff in this case, a non-profit corporation, alleges that it is the successor to the 

Catawba Indian Tribe and that, as such, it. 

has an ownership interest in approximate!~ 

144,000 acres of land in three South Carolina counties. According to the record, however, by 1840, the Catawbas had lea:;ed to 

white settlors all of the 144,000 acres now 

in dispute.• In 1840, the Catawbas entered 

into an agreement with the State of South 

Carolina, known as the Treaty of Nation 

Ford, in which they gave up any remaining 

interest they had in the 144,000 acres. 

Now, by seeking to defeat this 1840 transaction, plaintiff requests relief which would 

destroy the titles of more than 27,000 South 

Carolina citizens. In light of this history 

and because of the provisions of the Catawba Act, it is clear to me that plaintiffs 

claim to the Tribe's ancestral land must fail. 

Unlike the majority, I am convinced that 

the central purpose of the Catawba Act was 

I. The 1763 Treaty of Augusta. entered into between the Tribe and the representatives of the 

King of England. in which the Dtawbas agreed 

to terminate fL~Ieral n~ponsihility to the 

Tribe ancl it..' individual mcml~rs. Partial 

termination w:L~ specifically rejt.'cted h\· the 

hill's sponsor and the Cata whas, who ~·oted 

in favor of complcle termination. Furthermore, the plain and far-reaching language 

of the Act clearly reflects congressional intenll.o terminate any special federal status 

the Catawbas may previously have held -and 

to put them on an equal footing with other 

citizens. To this effect, the Act even includes a provision which revokes the tribe's 

constitution. Under Section Five· of the 

Catawba Act, 2.5 U.S.C. § 935: 

The constitution of the tribe adopted 

pursuant to ... this title shall be re,·oked 

by the Secretary. Thereafter, the tribe 

and its members shall not be entitled to 

any of the special services performed by 

the United States fo.- 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 se1·eral 

States shall apply to them in the same 

manner they apply to other persons or 

citizens within their jurisdiction. 1\othing in this subchapter, however, shall affect the status of such persons as citizens 

of the United States. (Emphasis added). 

Section 6 of the Catawba Act, 25 U.S.C. 

§ 936, similarly provides that "(n)oth!ng in 

this subchapter shall affect t~e rights, privileges, or obligations of the tribe and its 

members under the Jaws of South Carolina." (Emphasis added). 

In my view, the revocation of the Tribe's 

constitution unequivocally ended the Catawbas' existence as a political or go,·ernmental entity under federal law and prevents plaintiff from having the necessary 

standing to bring this action under the 

Nonintercourse Act. As the majority opinion correctly notes, there are four prerequisites to establishing a prima facie case under the Nonintercourse Act. Epps v. Andrus, 611 F .2d 915, 917 (1st Cir.l979). One 

of these requirements is that plaintiff show 

to be settled on the 144.000-acre tract. contained no restrictions on alienating this proper· 

ty. 
546 

1302 718 FEDERAL REPORTER. 2d SERIES 

that it is or represents an Indian tril>c. In 

my view, the revocation of the Tribe's constitution makes it impossible for plaintiff to 

establish this nt.-ccssary clement of a prima 

facie case. Furthermore, the revocation of 

the Catawbas' tribal constitution terminated the trust relationship between the Tribe 

and the United States, rendering it impossible for plaintiff to meet yet another prerequisite to a 'prima facie case under the Nonintercourse AcL Because plaintiff can establish neither of these requirements, its 

claim under the Nonintercourse Act is fatally defective. 

Moreover, the explicit statutory language 

of Sections 5 and 6 of the Catawba Act 

makes it clear that the legislation was intended to accord the Catawbas the same 

privileges and responsibilities as other 

South Carolina citizens. Thus, from the 

time the tribe's constitution was revoked on 

July 1, 1962, the Catawbas, and any federal 

claim they might have then had, were subject to the operation of state law in the 

same manner as all other citizens of South 

Carolina and their claims. 

One of the laws that became applicable to 

the Catawbas in 1962 was South Carolina's 

statute of limitations governing real property claims. S.C.Code § 15-3-340 states in 

pertinent part that "[n]o action for the recovery of real property or for the recovery 

of the possession thereof shall be ll'laintained unless it appear that the plaintiff, 

his ancestor, predecessor or grnntor, was 

seized or possessed of the premises in question within ten years before the commencement of such action." Thus, even if the 

Catawba Act did not extinguish the Catawbas' claim to the land which their ancestors 

had long since alienated, this suit, brought 

some 18 years after the statute of limitations had begun to run, is unquestionably 

time-barred. 

The application of South Carolina's statute of limitations in this case is entirely 

2. The majority's reliance on the Supreme 

Court's decision in Menominee Tribe of Indians 

v. United States, 391 U.S. 404,88 S.Ct. 1705,20 

LEd.2d 697 (1968), is misplac:eG. In Menomi· 

nee, the tribal constitution was not revoked, as in the present case. Furthermore, the hunting 

consistent with Supreme Court preccdenl 

In Affili:Hed Uw Citizens o[ Uwh c United 

States, 406 l.J.S. 128, 92 S.Ct. 1456, 31 

L.Eti.Z<l 741 (1912). the Supreme Court's 

most recent de-cision construing a termination act, terminated Indians were required 

to challenge allegcJly fr,!Udulcnt transfers 

of property under the same laws as non-Indians. In an earlier decision, Schrimpscher 

v. Stockton, 183 U.S. 290, 22 S.CL 107, 46 

L.Ed. 203 (1901), Indian heirs sued to recover land com·eycd by a Wyandotte indian at 

a time when alienation was prohibited by 

federal treaty. In light of a subsequent 

treaty, which hac! terminated such restrictions, the Supreme Cuurt held that the state 

·statute of limitations. had run, precluding 

recovery: 

Their disability terminated with tl:e ratification of the treaty of 1S6S. The heirs 

might then ha1·e executed a ,·alid deed of 

the land, and possessing, as they did, an 

unincumbered (sic] title in fee simple, 

they we~e chargeable with the same diligence in beginning an action for their 

reco\'ery as other person:; having title to 

lands; in other words, they were bound 

to assert th.:ir claims 11·ithin the period 

limited by /att·. This they did not do 

under any 1·iew of the statute, (whether 

the limitation be three or fifteen years), 

since it began to run at the date of the 

treaty. 1868, and the action was not 

brought until 189-+. a period of o1·er twenty years. Id. at 296, 22 S.Ct at 110. 

(Emphasis added). 

Sec also, Dillon 1· . • 4.ntler Land Co., 341 

F.Supp. 734 (0.~font.1972), afrd 507 F.2d 

940 (9th Cir.1974), cert. denied, 421 U.S. 992, 

95 S.Ct. 1998, 44 L.Ed.2d 482 (1975); Dennison v. Topeka Chambers Industrial Development Corp., 527.F.Supp. 611 (D.Kan.1981) 

(both holding that state statutes of limitations begin to run once restrictions are removed and state law is made ap~!icable).z 

and fishing rights, which were the subject of 

the Menominees' claim. had never been alienated. In this case, the Catawbas have not occupied the property in question for more than 180 

years. 
547 

ESTATE OF JOHNSON v. C.I.R. 1303 Oteas718F.2d 1303 (1983) 

As the Tenth Ci~uit nolL'fi in Reyoo v. 

United Swtcs, 431 F.2d 1337, 1343 (lOth 

Cir.l970), afrd in part and rcv'd i!l Jl:trt, 

Affiliated Ute Citi7.cns of Ut.;th v. United 

States, 406 U.S. 128, 92 S.CL 1456, 31 

L.Ed.2d 741 (1972), "(i]t is not for administrative officials or for lhe courts lo modify 

this statutory tenninalion by the creation 

of some status lying between wardship and 

complete termination." I sqbmit that the 

majority in this case has impennissibly substituted its own judgment for that of Congress. By doing so, it has succeeded in 

nullifying the clear mandate of the Catawba Act and has placed in jeopardy the lo:tgestablished rights of over 27,000 South Carolina citizenS. Because I believe the dist:-ict 

court was correct in dismissing plaintiffs 

action, I would affinn the judgment below. 

EST ATE OF Helen M. JOHNSON, Deceased, Lolita McNeill Muhm, Independent Executor, Petitioner-Appellee, 

v. 

COMM1SSIONER OF INTERNAL REVENUE. Respondent·Appellanl 

No. 82-407 4. 

United StatR.s Court of Appeals, 

Fifth Circuil 

OcL ?4, 1983. 

Rehearing Denied Nov. 30, 1983. 

Commissioner of Internal Revenue appealed from a liecision of the United States 

Tax Court, 77 T.C. 121l, allowing deduction 

of value of homestead interest of surviving 

spouse from value of property included in 

decedent's gross estate. The Court of Appeals, Randall, Circuit Judge, held that 

waivable forced heirship provision of Texas 

homestead law was enacted in lieu of dower 

or curtesy, and therefore value of surviving 

spouse's homestead interest is includible in 

d!:ccdcnl's gross estate for fL'fiCr.!l estate 

L"lX purposes. 

Reversed and rcmanrlcd. 

1. Dower and Curtesy e=> I 

Term "dower" generdlly refers lo interest widow takes in estate of her deceased 

husband; "curtesy" is corresponding right 

of husband by which he is entitled, on death 

of his wife, lo life estate in lands of which 

she was sei1.ed Juring her coverture, provided they have had lawful issue born alive 

which might have been capable of inheriting estate. 

See publication Words and Phrases 

for other judicial constructions and 

definitions. 

2. Homestead e::>SS 

"Homestead," in both papillar and legal 

sense, means "homeplace" or family home, 

and also property which is protected because it is family home. 

See publication Words and Phrases 

for other judicial constructior.s and 

1efinitions. 

3. Homestead = I 

Under Texas law, homestead interest is 

a n estate in property itself which vests at 

rn3rriage. 

4. Dower and Curtesy = 3 

Interna l Revenue =4152 

Waivable forced heirship prov1swn of 

Texas homestead law was enacted in lieu of 

dowe r or curtesy, and therefore n lue of 

surviving spouse's homestead interest is in· 

cludible in d-ecedent's gross estate for federal estate tax purposes. 26 U .S.C.A. 

§§ 2033, 2034, 2051; Vernon's Ann.Texas 

Consl ArL 16, § 52. 

5. Internal Revenue e=>4151 

For purposes of federal estate tax, 

while courts must look lo state property 

law lo determine nature of decedent's interest in property, taxation under federal law 

is not det.<:rmined by local characterization; 

however, this rule has no application in 

cases in which federal statute makes its 

operation dependent upon state law. 
548 

CATAWBA INDIAN THIIlE OF S.C. v. STATE OF S.C. 305 Cllc as 7.00 F.ld 305 (1984) 

CATAWBA INDIAN TRIBE OF SOUTH 

CAROLINA, also known as the Catawba Nation of South Carolina, 

v. 

STATE OF SOUTH CAROLINA, Richard 

W. Riley, as Governor of the State of 

South Carolina; County of Lancaster, 

and its County Council consisting of 

Francis L. Bell as Chairman, Fred E. 

Plyler, Eldridge Emory, Robert L. Mobley, Barry L. Mobley, L. Eugene Hudson, Lindsay Pettus; City of Rock Hill, 

J. Emmett Jerome, as Mayor, and its 

City Council consisting of Melford A. 

Wilson, Elizabeth D. Rhea, Maxine Gill, 

Winston Searles, A. Douglas Echols, 

Frank W. Berry, Sr.; Bowater North 

American Corporation; Catawba Timber Co.; Celanese Corporation of 

America; Citizens and Southern National Bank of South Carolina; Cresent 

Land & Timber Corp.; Duke Power 

Company; Flint Realty and Construction Company; Herald Publishing 

Company;· Home Federal Savings and 

Loan Association; Rock Hill Printing 

& Finishing Company; Roddey Estates, 

Inc.; Southern Railway Company; 

Springs Mills Inc.; J.P. Stevens & Company; Tega Cay Associates; Wachovia 

Bank and Trust Company; Ashe Brick 

Company; Church Heritage Village & 

Missionary Fellowship; Nisbet Farms, 

Inc.; C.H. Albright; Ned Albright; J.W. 

Anderson, Jr.; John Marshall Wilkins, 

II; Jesse G. Anderson; John Wesley 

Anderson; David Goode Anderson; 

W.B. Ardrey, Jr.; Eliza Beth Ardrey 

Grimball; Johr. W. Ardrey, Ardrey 

Farms; F.S. Barnes, Jr.; W. Watson 

Barron; Wilson Barron; Archie B. Carroll, Jr.; Hugh William Cl:>se; Ja01es 

l~radley; Francis Lay Springs; Lillian 

Cra'ldel Close; Francis Allison Close; 

I....,roy Springs Close· Patricia Close· 

William Elliot Clos~- Hugh Willia~ <.:J ' rh.~~. Jr:; Robert A. Fewell; WJ. Harll · Annte F. Harris; T.W. Hutchinson;· 

lram Hutchinson, Jr.; J.R McAlha-

• ~7 ~u=I~. fudge Ervin, and Judge Chapman 

panacapate in the hearing or the deci· 

ncy; F.l\1. i\1a(·k. Jr.; Arnold F. Marshall; J.E. Marshall, Jr.; C.E. Reid, Jr.; 

Will R. Simpson; John S. Simpson; 

Robert F. Simpson; Thomas Brown 

Snodgrass, Jr.; John M. Spratt; Marshal E. Walker; Hugh M. White, Jr.; 

John M. Belk; Jane Nisbet Goode; R.N. 

Bencher; W.O. Nisbet, III; Pauline B. 

Gunter; J. Max Minson; W.A. McCorkle; Mary McCorkle; William 0. Nisbet; Eugenia Nisbet White; Mary Nisbet furvis; E.N. Martin; Robert 1\f. Yoder, Appellees. 

No. 82-1671. 

United States Court of Appeals, 

Fourth Circuit. 

Argued June 4, 1984. 

Decided Aug. 17, 1984. 

Don B. Miller, Boulder, Colo., and Jean 

H. Toal, Columbia, S.C. {Native American 

Rights Fund; Belser, Baker, Barwick, Ravenel, Toal & Bender, Columbia, S.C., Robert M. Jones, Rock Hill, S.C., Mike Jolly 

and Richard Steele, Union, S.C., on brief), 

for appellant. 

John C. Christie, Jr., Chicago, Ill., J.D. 

Todd, Jr., Greenville, S.C., James D. St. 

Clair, Boston, Mass. (J. William Hayton, 

Stephen J. Landes, Lucinda 0. McConathy, 

Bell, Boyd & Lloyd, Chicago, Ill., Michael J. 

Giese, Gwendolyn Embler, Leatherwood, 

Walker, Todd & Mann, Greenville, S.C., 

Dan M. Byrd, Jr., Mitchell K. Byrd, Byrd & 

Byrd, Rock Hill, S.C., James L. Quarles, 

III, William F. Lee, David H. Erichsen; 

Hale & Dorr, Boston, Mass., T. Travis Medlock, Atty. Gen., Kenneth P. Woodington, 

Asst. Atty. Gen. for the State of South 

Carolina, Columbia, S.C., on brief), for appellees. 

Before WINTER, Chief Judge, WIDENER, HALL, PHILLIPS, MURNAGHA.N, 

and SPROUSE, Circuit Judges, and BUTZNER, Senior Circuit Judge. (en bane) • 

sian of this appeal. 
549 

306 7~0 FEDEHAL llEPOilTEH, 2d SEHIES 

PER CURIAM: 

The judgment of the district court is 

reversed, and this case is remanded for 

further proceedings for reasons stated in 

the opinion of the panel. Catawba Indian 

Tribe of South Carolina v. South Carolina, 718 F.2d 1291 (4th Cir.1983). Judge 

Widener, Judge Hall, and Judge Phillips, 

dissenting, would affirm the judgment of 

dismissal for the reasons stated in Judge 

Hall's dissent to the panel opinion. 718 

F.2d at 1301-03. 

MURNAGHAN, Circuit Judge, concurring: 

For the reasons so cogently expressed by 

Judge Butzner in his opinion for the panel 

majority, I agree that "the Catawba Indian 

Tribe Division of Assets Act of 1959 did not 

ratify the 1840 Treaty, extinguish the 

Tribe's existence, terminate the trust relationship of the Tribe with the federal 

government arising out of the Nonintercourse Act, or make the state statute of 

limitations applicable to the Tribe's claim." 

Catawba Indian Tribe of South Carolina 

v. State of South Carolina, 718 F.2d 1291, 

1300 {4th Cir.1983).1 While the dissent has 

delivered a respectable argument to the 

contrary, we face at most a case in which 

the congressional statement is open to dual 

interpretations. We may, however, permit 

only a plain and unambiguous expression 

of congressional intent to abrogate a federally recognized right and terminate a trust 

relationship. Furthermore, construction of 

statutes affecting Indian tribes should proceed on the basis of tender concern for the 

rights of Indians. The uncertainty in statutory interpretation in the instant case is 

properly resolved in favor of the Catawba 

Tribe. 

I therefore unreservedly join in the opinion of Judge Butzner, reversing the award 

of summary judgment in favor of South 

Carolina. As for the other defendants, 

landowners of parcels compositely comprisI. Judge Butzner"s panel majority opinion is 

adopted by reference in the per curiam opinion 

following en bane rehearing. Judge Butzner 

was joined by Chief Judge Winter, Judge 

ing the 144,000 acres, no arguments separate and distinct from those advanced on 

behalf of the State of South Carolina have 

been made, and, consequently, on the 

present state of the record I also agree 

that summary judgments in their favor 

should be revers<?d. 

My concurrence with respect to the private defendants, however, is a troubled 

one. Since the Tribe's claim at present 

inciudes the right to actual possession, a 

complete victory for the Catawba Tribe 

would leave up in the air or by the side of 

the road the approximately 27,000 people 

claiming title through deeds or other 

sources to the 144,000 acres. It appears to 

be a tacit assumption that ejectment would 

never be allowed actually to occur, even 

were we in the end to validate continued 

vitality of the Indian . title to the 144,000 

acres. Rather, through accommodation between the Indians and either or both of the 

United States and the State of South Carolina, the ~tawba Tribe would relinquish all 

possessory claims in return for money or 

other benefits. 

For myself, I take little solace in the 

consideration that a proper, fair and equitable result may possibly come about by 

reason of enlightened, but by no means 

mandatory, legislative or executive action. 

Such a posture would still leave too many 

innocent good faith landowners at an awesome risk that political.realities related to 

effort.<; by both sovereigns to right a long 

standing wrong, might lead to the Queen of 

Spades ultimately winding up in the hands 

of the individual owners. 

While I therefore harbor grave doubts, 

that, as a matter of grace, a government 

will rescue the current occupants of the 

land, I take greater comfort in the realization that there may be available on remand 

an argument that would at once retain the 

vitality of the claims of the Catawba Tribe 

and also afford protection to the innocent, 

private landowners. 

Sprouse, and now by me. The opposing opinion of Judge Hall was joined by Judge Widener 

and Judge Phillips. It, too, is incorporated by 

reference in the per curiam opinion. 
550 

CATAWIL\ !NOlAN TRIBE OF S.C. ,._ STATE OF S.C. 307 Cllc 3~ 7~ F.lci 30~ 1(9F:.;) 

[A)s the Supreme Court held in Yankton 

Sioux Tribe v. United States, 272 U.S. 

351, 47 S.Ct. 142. 71 L.Ed. 294 (1926), if 

the ejectment of current occupants and 

the repossession by the Indians of a 

wrongfuliy taken land is deemed an " impossible" remedy, id. at 357, 47 S.Ct. at 

143, the court has authority to award 

monetary relief for the wrongful deprivation. !d. at 359, 47 S.Cl at 144. 

Oneida Indian Nation of New York v. 

State of New York, 691 F.2d 1070, 1083 

(2nd Cid982). In reaching its result, the 

Yankton court e>..-pressed its concerns for 

the plight of the innocent landowners: 

It is impossible, however, to rescind the 

cession and restore the Indians to their 

former rights because the lands have 

been opened to settlement and large portions of them are now in the possession 

of innumerable innocent purchasers .... 

Yankton Sioux Tribe v. United States, 

supra, at 357, 47 S.Cl at 144. The court 

concluded that, since the Indians were entitled to a judgment in their favor, but a 

2. It is not particularly earthshaking for a court 

to tailor the remedy to the problem at hand. 

Monetary relief representing fair value is "just 

compensation" and constitutionally is the equiv· 

alent of tangible or real property. SeL, e.g .• 

United Stares v. 564.54 Acres of Land, 441 U.S. 

506. 510, 99 S.CL 1854, 1856, 60 LEd.2d 435 

( i 979); Olson v. United States, 292 U.S. 246, 255, 

54 S.Ct. 704, 708, 78 LEd. 1236 (1934); United 

States v. 13/.68 Acres of Land. 695 F .2d 872 (5th 

Cir.1983), cert. denied. -U.S.--, 104 S.CL 

77, 78 LEd.2d 88 (1983) ("[T)he government 

must. and need do no more than, put the own~r 

in ' ... as good a position pecuniarily as if his 

property had not been taken.' • /d. at 875, quot111! Olson v. United States, supra. 292 U.S. at 

255._ 54 S.CL at 708). The public purpose to 

JU>llfy a taking is not open to serious question. 

At a bare minimum, present occupants should 

n01 ~ required, because customarily in unitary 

'IUI4nc~s of ~jectment the remedy is return of 

~ property itself and not a monetary "substilulc." Ia surrender possession if just compensa11'"' ;, indeed awarded to th~ Catawba Tribe. 

1. So•hin h ld C...U g s au preclude am~ndment by the 

l: . wba Tri~ of its complaint to name the .:led States as a defendant, thereby presenting 

~ """c for resolution. Similarly, South Carotlu m•ght endeavor to raise the question 

1

"'-'ch •mpleading the federal govemmenL 

~ 

l "'-<>uld . Trema1n to be seen whether either the 

nbe or South Carolina could overrestoration oi the lands to the Indians was 

an impossible remedy, the Indians were 

"entitled to just compen ~a on as for a taking under the power of t:minent domain." 

!d. at 359, 2 47 S.Ct. at 14~. 

Under Yankton and Oneida, therefore, 

one or both of the sovereigns (the United 

States or South Carolina) may indeed owe 

to the Tribe just compensation. On that 

basis, the titles of the 27,000 landowners 

would be held to be paramount and they, 

without surrender of the land or payment 

in cash, would be entitled to judgment. 

South Carolina's liability might arise from 

the fact that, assuming that the 1840 Treaty is invalid under the Nonintercourse Act, 

the state entered into an invalid treaty with 

the Catawba Tribe and induced innocent 

landowners to settle on the land. That 

may be held to translate into an obligation 

to protect the present occupants or other 

cla_imants by paying just compensation to 

the Catawbas for the land. 

As for the United States,3 it remains to 

be explored whether liability to pay just 

come a likely claim of sovereign immunity 

raised by the United States. SeL, e.g., Affiliated 

Ut~ Citizens v. United Statei, 406 U.S. 128, 141-

143, 92 S.Ct. 1456, 1466-1467, 31 LEd.2d 741 

(1972). Cf. Antoine v. United States, 637 F.2d 

1177, 1181-82 (lith Cir.l981); Fontene/le v. 

Omaha Tribe of Nebraska, 430 F.2d 143, 146-

147 (8th Cir.1970). Sa also United States v. 

Oneida Nation of New York, 4n F.2d 939 (CLCI. 

1973 ). It might become necessary to explore 

the possibility that consent in this onstance can 

be inferred from the Nonintercourse Act, the 

1959 Act or even some future legislation Congress may see fit to enact. 

An analogous obstacle to recovery from South 

Carolina may arise in the Eleventh Amendment 

context. See, e..g., Edelman v. Jordan, 415 U.S. 

651, 94 S.CL 1347, 39 LEd.2d 662 (1974). But 

cf., Parden v. Terminal Railway, 377 U.S. 184, 84 

S.CL 1207, 12 LEd.2d 233 (1964); Fit1:[JQtrick v. 

Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 LEd.2d 

614 (1976). Su generally, L Tribe, American 

Constitutional Law, 129-138 (1978). 

Alternatively, the time may be at hand to 

decide whether, in th~ dying writhings of an 

outmoded concept, time has passed sovereign 

immunity by if not elsewhere in the absence of 

legislative consent to be sued, at least in the 

area of executive and legislative actions relating 

to relationships at the highest governmental levels such as those between the United States and 

an Indian tribe. 
551 

308 i~O FEDEHAL REI'ORTEIC :ld !:iERIES 

compensation to the Indians arises, either 

from the Government's fa ilure to protect 

their claim to possession despite the special 

relationship between the United States and 

the Indians, or from the government's failure to extinguish the Catawba's possessory 

claiu1s in light of the extensive reliance by 

the innocent parties on apparently good 

and clear title. • 

The resolution of the competing claims 

ilirough ilie just compensation concept has 

the great and equitable advantage of protecting the innocent landowners from sustaining monetary injury. Certainly, the 

two sovereigns, the United States and the 

State of South Carolina, ha\·e done nothing 

to warn them off the land. To ilie contrary, the sovereigns have actively encouraged ilieir settlement or the settlement of 

their predecessors, and, no doubt, have actively benefited ilirough real property and 

income taxes assessed against the land in 

their hands or against profits generated by 

its use. 

Resolution of the issues raised above is, 

of course, premature. After remand, it. 

remains possible iliat one, or both, sovereigns can be stimulated into doing w~at 

together they should have done long since. 

Additionally, ilie parties may be able to 

resolve their differences by means wholly 

apart from iliose suggested here. The 

route described is merely one attempt to 

avoid remedying one inequity by perpetrating another, perhaps greater, one. It 

would indeed be tragic and unfair for the 

Even if sovereign immunity concepts still 

would preclude in this case reeovery against the 

United States and South Carolina. they concern 

only a jurisdictional barrier, .and do not preclude judicial allocation of rights and responsibilities. If the United States and South Carolina 

elect to plead sovereign immunity, and therefore to waive the right to appear and assert their 

positions when a court is determining who owes 

what to whom, a right of the Catawba Tribe 

against the sovereigns may no less be ass<:rted 

and established even if judicially it may not be 

enforced. The right. outstanding if not realizable by judicial process, may nevertheless be 

pursued in the halls of the legislatures. It 

should not lightly be inferred that a government. the best we know and have, will not 

respond to a valid claim or claims simply because it cannot be compelled to pay. 

long-<~verdue resolution of the Catawba 

Tribe's claims to occur exclusively and disproportionately a t the expense of the more 

than 27,000 innocent South Carolina citizens with claims to the contested land, 

more recent in the sense of strict accuracy 

than those of the Tribe, but long standing 

in fact, reaching back over 140 years. By 

our society's general attitude, a title of that 

uninterrupted duration should be good 

against the world. 

Alvin R MOORE, Jr., Petitioner-Appellee Cross Appellant, 

v. 

Ross MAGGIO, Jr., Warden, Louisiana 

State Penitentiary and William J. 

Guste, Jr., Attorney General, State of 

Louisiana, Respondents-Appellants 

Cross Appellees. 

No. 83-4718. 

United States Court of Appeals, 

Fifth Circuit 

Aug. 15, 1984. 

Rehearing and Rehearing En bane 

Denied Sepl 12, 1984. 

Petitioner, who had been convicted of 

murder and sentenced to die, filed a petiThe question here remains as to where rights 

and responsibilities to the land or to compensation for it lie. Legally. the question of who is 

entitled is not the same as who may enforce in 

court the entitlemenL It remains for a later 

stage in these proceedings to address pot~ntially 

far-reaching and tantalizingly fascinating questions. 

4. It may also become necessary. to consider 

whether cases such as Ta-Hit-Ton Indians v. 

United States. 348 U.S. 272, 284-5, 75 S.CL 313, · 

319-320, 99 LEd. 314 (1955) are distinguishable 

on the basis that, in those cases. explicit and 

· affirmative action by the Congress; rather than 

neglect or a failure to act, led to the abrogation 

of the Indians' possessory claims. 
552 

1444 865 FEDERAL REPORTER, 2d SERIES 

been detained but released on appropriately 

stringent conditions. 

Circuit Judge MUR:.lAGHA:.l and Circuit 

Judge ERVIN join in this separate opinion. 

Timothy A. BROW:-<, Plaintiff-Appellee, 

v. 

Robert J. LOWEN, et a!, 

Defendants-Appellants. 

No. 8S-2S76. 

united States Court of Appeals, 

Fourth Circuit. 

Jan. 11, 1989. 

ON PETITION FOR REHEARI:.lG A::-iD 

SUGGESTION FOR REHEAR!~G 

IN BA::-iC 

Prior report: 857 F.2d 216. 

The appellants' petition for rehearing 

and suggestion for rehearing in bane was 

submitted to the Court. A majority of 

judges ha\ing voted in a requested poll of 

the Court to grant rehearing in bane, 

IT IS ORDERED that rehearing in bane 

is granterl. 

IT IS FuRTHER ORDERED that this 

case shall be calendared for argume:.t at 

the April 1989 Term of Court. Within ten 

days of the date of this order 11 additional 

copies of appellants' informal brief and 11 

additional copies of appellee's informal 

brief shall be filed. 

CATAWBA INDIAN TRIBE OF SOuTH 

CAROLINA, also known as the Catawba Nation of South Carolina, Appellant, 

v. 

STATE OF SOUTH CAROLINA, et 

a!., Appellees. 

No. 82-1671. 

United States Court of Appeals, 

Fourth Circuit. 

Argued April 6, 1988. 

Decided Jan. 23, 1989. 

Indian tribe brought suit to recover 

possession of its land and damages. The 

United States District Court for the District of South Carolina, Joseph P. Wilson, 

J., sitting by designation, granted summary 

judgment in favor of defendants, and tribe 

appealed. Tb.e Court of Appeals, 718 F.2d 

1291, 740 F.2d 305, reversed and remanded, 

and defend ants petitior.ed for certiorari. 

The Supreme Court, 476 U.S. 498, 106 S.Ct. 

2039, 90 L.Ed.2d 490, reversed and remanded. The Court o f Appeals, Butzner, 

Senior Circuit Judge, held that: (1) tatutes 

of limitations pertaining to disabled persons did not bar suit; (2) fact that treaty 

which was source of tribe's Indian title was 

not recorded in South Carolina's Registry 

of !lfesne Conveyances did not defeat 

t~ibe's claim; (3) tribe was presumed to 

have been possessed of the land within the 

ten years specified for bringing ac tion for 

recovery of real property; (4) tribe was 

barred from recovering possession and 

damages from person who held and possessed property that had been held and 

possessed adversely to tribe's legal title for 

ten years after revocation of tribe's constitution and before commencement of suit, 

without tacking except by inheritance, but 

statute of limitations did not bar tribe's 

claim against any other person; and (5) 

cou rt had jurisdiction. 

Affirmed in part, re\·ersed in part and 

remanded. 

Widener, Circuit Judge, filed dissenting opinion in which K.K. Hall, Circuit 

Judge, joined. 
553 

CATAWBA 11\"DIAN TRIBE v. STATE OF S.C. 1445 Cite •• 865 F.2d 1444 (4<h Clr. 1989) 

K.K. Hall, Circuit Judge, filed dissent- had affirmed that 1764 

ing opinion in which Widener, Circuit lands was duly filed. 

survey of Indian 

S.C.Code 1976, 

Judge, joined. § 27-15--30. 

1. Indians C=o27(4) 

Statutes of limitations pertaining to 

disabled persons did not bar Indian tribe's 

suit to recover possession of land and damages. S.C.Code 1976, §§ 15-3-340, 15--3-

370. 

2. Indians ~10 

"Indian title" is title given to land occupied by Indians when the United States 

gained its independence from Great Britain 

and became the sovereign, and includes a 

right to possession superior to that incident 

to fee simple title. 

See publication Words and Phrases 

for other judicial constructions and 

definitions. 

3. Indians C=o10 

\\'here Indian title and fee simple title 

coexists, fee simple interest operates merely as a reversionary right to possession 

which can take effect only when Congress 

extinguishes the Indian right. 

4. Indians C=o10, 19 

Indian title includes right to exclude all 

others, including holders of fee simple title, 

through state law possessory actions such 

as ejectment and trespass. 

5. Indians C=o15(2) 

Indian title cannot be alienated except 

by act of Congress; a purported conveyance of the possessory right, even if made 

by tribe having such title, is void and no 

title passes. 

6. Indians C=o22, 27(4) 

Except where Congress provides otherwise, claims based on Indian title are not 

subject to state law defenses such as statutes of limitations, adverse possession or 

laches. 

7. Indians C=o3(1) 

Fact that 1763 Treaty of Augusta, 

which was source of tribe's Indian title, 

was not recorded in South Carolina's Registry of Mesne Conveyances did not defeat 

tribe's claim; South Carolina legislature 

8. Indians C=olO 

Reversionary interest, conditioned 

upon United States' extinguishing tribe's 

Indian title, was so remote that, like a 

possibility of reverter, it did not rise to 

dignity of an estate. 

9. Indians C=o27(6) 

Tribe's Indian title was legal title and 

thus, under South Carolina statute, tribe 

was presumed to have been possessed of 

the land within the ten years specified for 

bringing action for recovery of real property. S.C.Code 1976, §§ 15--3-340, 15--67-

210. 

10. Indians ~27(4) 

Under South Carolina law, Indian tribe 

was barred from recovering possession and 

damages from person who held and possessed property that had been held and 

possessed adversely to tribe's legal title for 

ten years after revocation of tribe's constitution and before commencement of suit, 

without tacking except by inheritance; 

statute of limitations did not bar tribe's 

claim against any other "person," including 

joint tenants, tenants in CO}Tirnon, partnerships, associations and corporations. S.C. 

Code 1976, §§ 15--3-340, 15--67-210. 

See publication Words and Phrases 

for other judicial constructions and 

definitions. 

11. Indians C=o27(2) 

Indian tribe's capacity to invoke federal jurisdiction over an action or proceeding 

arising under act of Congress regulating 

commerce or over claim asserted "by any 

Indian tribe or band with a governing body 

duly recognized by the Secretary of the 

Interior, wherein the matter in contro\·ersy 

rises under the Constitution, laws, or treaties of the United States" was not defeated 

by enactment of Catawba Act. 25 U.S.C.A. 

§§ 931-938; 28 U.S.C.A. §§ 1337, 1362. 

12. Indians C=o27(2) 

Indian tribe's complaint alleging right 

of occupancy under treaties with British 

Crown that were implemented by Indian 
554 

1446 865 FEDERAL REPORTER, 2d SERIES 

Nonintercourse Act sufficed to provide jurisdiction under statute giving district 

courts jurisdiction of "all civil actions arising under the Constitution, laws, or treaties 

of the United States." 25 U.S.C.A. § 177; 

28 U.S.C.A. § 1331. 

Jerry Jay Bender (H. Clayton Walker, 

Jr., Jean H. Toal, Belser, Baker, Barwick, 

Ravenel, Toal & Bender, Columbia, S.C., 

Don B. :\filler, Native American Rights 

Fund, Boulder, Colo., Robert !If. Jones, 

Richard Steele, on brief), for appellant. 

J.D. Todd, Jr. (Michael J. Giese, Gwendolyn Embler, Leatherwood, Walker, Todd & 

Mann, Greenville, S.C., John C. Christie, 

Jr., J. William Hayton, Patrick J. Roach, 

Janet F. Satterwhite, Brian A. Runkel, Beli, 

Boyd & Lloyd, Washington, D.C., Dan M. 

Byrd, Jr., Mitchell K. Byrd, Byrd & Byrd, 

Rockhill, S.C., T. Travis Medlock, Atty. 

Gen., Kenneth P. Woodington, Asst. Atty. 

Gen., James D. St. Clair, P.C., James L. 

Quarles, III, William F. Lee, Daniel Solomon, Hale & Dorr, Boston, Mass., on brief), 

for appellees. 

Before WIDENER, HALL, 

PHILLIPS, MURNAGHAN and 

SPROUSE, Circuit Judges, and 

BUTZNER, Senior Circuit Judge. 

BUTZNER, Senior Circuit Judge: 

The Supreme Court remanded this case 

for us to determine whether the claim of 

the Catawba Indian Tribe to a tract of land 

is barred by South Carolina statutes of 

limitations. South Carolina v. Catau·ba 

Indian Tribe, Inc., 476 U.S. 498, 106 S.Ct. 

2039, 90 L.Ed.2d 490 (1986). We hold that 

the statutes of limitations pertaining to disabled persons, sections 15-3-370 and 15-3-

40 of the Code of South Carolina, do not 

bar the tribe from maintaining this action. 

We also hold that sections 15-3-340 and 

1~7-210 bar the tribe from recovering 

possession and damages from a person who 

I. Su South Carolina v. Catawba Indian Tn'be, 

476 U.S. at 5()()...{)5 and 511-18, 106 S.Ct. at 

2041-43 and 2046-50 (Biackmun, J., dissenting). 

holds and possesses property that has been 

held and possessed adversely to the tribe's 

legal title for ten years after the revocation 

of the tribe's constitution, July 1, 1962, and 

before the commencement of this action, 

October 20, 1980, without tacking except 

by inheritance. We also hold that the statutes of limitations do not bar the tribe from 

recovering possession and damages from 

other persons. We therefore affirm in part 

and reverse in part the district court's 

grant of summary judgment in favor of the 

state and all persons in possession and 

remand the case for further proceedings on 

the issues remaining to be tried. 

The fa cts that we assume for the purpose of summary judgment are recounted 

in the majority and dissenting opinions of 

the Supreme Court 1 and need only be summarized here. In the 1760 Treaty of Pine 

Hill and the 1763 Treaty of Augusta, the 

tribe agreed with representatives of the 

King of England to relinquish its aboriginal 

territory in exchange for permanent resettlement on a fifteen square mile tract in 

South Carolina. In the 1840 Treaty of Nation Ford, the tribe transferred its interest 

in the tract to South Carolina. The L'nited 

States did not participate in the Treaty of 

Nation Ford. 

In 1959, Congress passed the Catawba 

Act, 73 Stat. 592, 25 U.S.C. §§ 931-38 

(1976), which ultimately Jed to the revocation of the tribe's constitution on July 1, 

1%2. As of that date, the tribe's claim to 

the land it relinquished in 1840 became 

subject to South Carolina statutes of limitations. 

In 1980, the tribe brought suit to recover 

possession of its land and damages. It 

asserts that the 1840 Treaty of Nation 

Ford was void because the United States 

did not participate in it or consent to the 

alienation of the tribe's reservation as required by the Indian Nonintercourse Act. 2 

2. 25 U.S.C. § 177 (1976) (originally enacted as 

Act of July 22, 1790, ch. 33, § 4, I Stat. 138). 

The Act states in relevant pan: 

No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, 
555 

CATAWBA INDIAN TRIBE v. STATE OF S.C. 1447 Cit<"' 865 F.2d 1444 (4th Clr .. 1989) 

II 

The state argues that the tribe was a 

disabled plaintiff within the meaning of 

sections 15-3-370 and 15-3-40 from 1840 

to 1962, when Congress passed the Catawba Act. Therefore, the state asserts, the 

tribe had no longer than ten years after 

1962, when its disability was lifted, to bring 

suit. According to the state, since the tribe 

did not file suit within this period, the 

statute of limitations bars its claim. 3 

Section 15-3-370 on which the state primarily relies provides: 

Persons under disability. 

If a person entitled to commence any 

action for the recovery of real property, 

or make an entry or defense founded on 

the title to real property or to rents or 

services out of the same be, at the time 

such title shall first descend or accrue, 

either: 

(1) Within the age of eighteen years; 

(2) Insane; or 

(3) Imprisoned on a criminal or civil 

charge or in execution upon conviction of 

a criminal offense for a term less than 

life; 

The time during which such disability 

shall continue shall not be deemed any 

portion of the time in this article limited 

for the commencement of such action or 

the making of such entry or defense, but 

such act1on may be cor"!lmenced or entry 

o:: defense m2.de ;::.fter the period of ten 

yec..rs 2.nd \\·i~hin ten ye~:.r:::; after :-he dis· 

abill:y ::La!l ce~i~:e C'r after tl-1·2 cic~th of 

tht:! ;:e!"'~J):-1 e!':tit.1ed who :;hal! die :.r:~der 

s-cch d:sability. But such action shs!l not 

be commenced or t:ntry or deft:n::-e r;.J.de 

after that period. 

Section 15-3-40 recognizes identical dis3 bi1~ 

ities for other cau,es of action. 

[1) The state's position cannot be reconciled with section 15-3-370. The statute 

applies to only three classes of plaintiffs: 

infants, the insane, and persons imprisoned 

for less than their natural lives. Nothing 

from any Indian nation or tribe of Indians, 

shall be of any validity in Jaw or equity, 

unless the same be made by treaty or convention entered into pursuant to the Constitution. 

in the statute creates a fourth class of 

plaintiffs in the tribe's position. Applica· 

tion of the statute obliges us to ascertain 

the legislature's intent. We cannot read 

something into the statute that the legisla· 

ture did not contemplate. Quoting its 

precedents, the South Carolina Supreme 

Court has emphasized: 

(C]ourts have no legislative powers, 

and in the interpretation and construe· 

tion of statutes their sole function is to 

determine, and within the constitutional 

limits of the legislative power to give 

effect to, the intention of the Legislature. They cannot read into a statute 

something that is not within the manifest 

intention of the Legislature as gathered 

from the statute itself. To depart from 

the meaning expressed by the words is to 

alter the statute, to legislate and not to 

interpret. The responsibility for the justice or wisdom of legislation rests with 

the Legislature, and it is the province of 

the courts to construe, not to make, the 

laws. 

Belk v. Nationwide Mutual Insurance 

Company, 271 S.C. 24, 27, 244 S.E.2d 744, 

746 (1978). We conclude that the Supreme 

Court of South Carolina would not construe 

sections 15-3-370 and 15-3-40 to include 

Indians in the legislatively defined c1ass of 

disabled persons. Therefore we hold that 

the disability statutes do not bar the tribe's 

clairn. 

III 

l S.--:! . .<),;0 ptovid:::;~, :hat no c.ct]:::'r' 

fo: : LE: teco\'cr: .. · o: possession of real prop· 

Ercy ::;h::-1Jl Le: brought ;1rdess ~h8 p:a:ntlff or 

his predecessor W3S seit:ed cr possess~d of 

the premises ;-.·ithin 10 ye2.r.:; before the 

cornmencernent of the ~lctlc·n. Section 15-

67-210 creates a presumption of possession 

if the plaintiff estab!ishes legG.l tit!e. 4 The 

tribe acknowledges that it has not been in 

possession of the tract since 1840, but it 

maintains that it has Indian title to the 

tract and that Indian title is legal title 

3. For convenience we refer to all defendants 

collectively as the state. 

4. Sections 15-3-340 and 15~7-210 are quoted 

in part V of this opinion. 
556 

1448 865 FEDERAL REPORTER, 2d SERIES 

within the meaning of section 15--67-210. 

Therefore, the tribe claims that it is entitled to the presumption of possession prescribed in section 15--67-210 and that the 

stlte cannot defeat its claim on the basis of 

the statute of limitations. The state argues that the tribe is not entitled to the 

presumption because Indian title is not legal title and that the. presumption is inapplicable because the tribe admits it has 

been out of possession since 1840. 

[2-6] Indian title is a creation of federal 

Jaw. It is the title given to land occupied 

by Indians when the United Sutes gained 

its independence from Great Briuin and 

became the sovereign. Indian title includes 

a right to possession superior to that incident to fee simple title; where Indian title 

and fee simple title coexist, the fee simple 

interest operates merely as a re\·ersionary 

right to possession which can uke effect 

only when Congress extinguishes the Indian title. Indian title includes the right to 

exclude all others, including holders of fee 

simple title, through stlte law possessory 

actions such as ejectment and trespass. 

Indian title cannot be alienated except by 

Act of Congress; a purported conveyance 

of the possessory right, e\·en if made by a 

tribe having such title, is void and no title 

passes. Except where Congress provides 

otherwise, claims based on Indian title are 

not subject to state law de fens es such as 

statutes of limitations, adverse possession, 

or laches. See generally Oneida Jnd1'an 

Nation<'. County of Oneida, 414 C.S. 66l. 

666-74, 94 S.Ct. 712, 7i6-81, 39 LEd.2d 73 

(197 4); F. Cohen, Handbook of Federa l 

Indian Law, 471-574 (1982 ed.). 

The stlte correctly points out that the 

1763 Treaty of August>, which is the 

source of the tribe's Indizn title, is not 

recorded in the Registry of Mesne Conveyances. Relying on this fact, it argues chat 

the tribe's Indian title is not legal title. It 

insists that lega l title is record title; that 

is, the title that is refl ected in the Registry 

of ~Iesne Conveyances, and it cites numerous cases from South Carolina and other 

5. See, e.g., PaT"T v. PaT"T, 268 S.C. 58. 231 S.E.2d 

695 (1977); Lynch v. Lyr.ch, 236 S.C. 612. liS 

jurisdictions that refer to legal title and 

record title synonymously.5 

[7] Neither South Carolina nor federal 

law supports the st>te's argument. The 

tribe's source of title is recorded, though 

not in the Registry of 2\'Iesne Conveyances. 

The Treaty of Augusta recites that the 

Cauwbas accepted "the Tract of Land of 

Fifteen Miles square, a Survey of which by 

our consent and at our request has been 

already begun." XI Colonial Records of 

North Carolina 201-02 (1763). Current 

South Carolina law affirms that the survey 

was filed in the office of the Secretary of 

Sute. Section 27-15--30 describes the Catcwba Indian lands as "situated in the 

counties of York and Lancaster, within a 

boundary of fifteen miles square and which 

are represented in the plat of survey made 

by Samuel Wiley, dated February 22, 1764 

and now on file in the office of the Secreury of Sute." The stlte legislature recognized the survey filed in the office of the 

Secretary of Sute as a muniment of title, 

and it is reasonable to assume that the 

Supreme Court of South Carolina would 

take similar notice of it. 

Our conclusion that Jack of recordation in 

the Registry of Mesne Conveyances does 

not defeat the tribe's claim is substantiated 

by sound judicial precedent. The Superior 

Court of Law sustlined a reservation for 

German immigrants in Hau:kins' Devisees 

r . Arthur, 2 S.C.L. (2 Bay) 195 (1798). In 

1730, the King of England offere d "bounti es of land" to his subjects residing in 

Germany. ::\otwithst>nding the lack cf a 

recorded deed , the court held that a reservation granted by the crown was superior 

to a subsequent grant from the stlte. The 

olat of a survev entered in the council 

books was a sufficient muniment of title. 

2 S.C.L. (2 Bay) at 202-03. Even though 

the crown and subsequently the state held 

the reservation in trust for those persons 

who had a right of occupancy, the court 

ruled: 

As to the legal effect of this reservation, 

the re could be no question about it. It 

amounted to a covenant in Jaw, between 

S.E.2d 301 (1960); Knight v. Hilton, 224 S.C. 

452. 456, 79 S.E.2d 871, 873 (1954). 
557 

CATAWBA 1::\'DIAN TRIBE v. STATE OF S.C. 1449 CUe u 865 F.2d 1444 (4th C1r. 1989) 

the crown and the people, for whose use 

and benefit it was intended; that the 

land contained 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. 

In Thoma.s v. Daniel, 13 · S.C.L. (2 

McCord) 354, 357 (1823), the Constitutional 

Court of South Carolina stated that a 1777 

treaty between the Cherokees and the state 

which by "mutual engagements" granted 

the Indians the right to inhabit certain 

lands during good behavior "was at least 

as binding as any contract can be upon 

sovereign powers." The court held that an 

estate granted a nation during good behavior "must be an estate forever" and that as 

long as the Cherokees conformed to the 

treaty, that is " 'behaved themseh·es well,' 

this State was morally bound to permit 

them to continue in undisturbed possession 

of the land in question." 13 S.C.L. (2 

McCord) at 357. The court then held that a 

subsequent grant by the state of a part of 

the reservation to a person who cha llenged 

the Cherokee grant was void. Th e lack of 

recordation in the Registry of :\fesne Conveyances was no impediment to the Cherokees' title. Although the Constitutional 

Cou rt did not use the term Indian title, the 

Indians' "estate fore\·er" had incidents of 

Indian and legal title. 

Current South Carolina Jaw is consistent 

v..-ith the precedent established by Thoma.s 

and Hawkins' De'Jisees. Recordation in 

the Registry of Mesne Conveyances, while 

often a convenient proof of a conveyance, 

is not essential to establish legal title. In 

Haithcock v. Haithcock, 123 S.C. 61 , 68, 

115 S.E. 727, 729 (1923), the Supreme Court 

of South Carolina approved an instruction 

that explained to a jury how a cla:m of title 

can be established: 

Now, those are the ways in which a 

man may show title to land: First, by 

tracing it to the state, under a grant 

from the state; second, by tracing his 

title from a common source; third, by 

showing possession for 20 years in himself and those under whom he claims; 

and, fourth, by showing 10 years' possession in himself, or by inheritance. 

The tribe rests its title on the first way-a 

grant of a reservation from the crown recognized by the state. Indeed, this grant is 

the common source of title, because the 

lessees of land encompassed by the grant 

and their successors, present occupants, 

trace title to the same crown reservation 

through grants made pursuant to the subsequent Treaty of Nation Ford. See S.C. 

Code Ann. §§ 27-15-30, -40, and -50. 

Haithcock is also singularly instructive 

because it applies the statutory presumption on which the tribe relies without requiring proof of recordation or registry. 

After repeating four ways in which a person can prove title, the trial court correctly 

charged the jury: "Now, if he has shown 

that kind of title, then the possession is 

presumed to have been in the man who 

shows title in either one of these four 

ways." 123 S.C. at 85, 115 S.E. at 734. 

This presumption of possession is precisely 

what the tribe claims, having traced its title 

in the first of the four ways explained by 

the court. 

s;nce 1698 South Carolina has had recording acts. See Epps v. McCallum Realty Co .. 139 S.C. 481 , 497, 138 S.E. 297, 302 

(1927). Notwithstanding this long established provision for recordation, the state 

has cited no case holding that proof of 

recording in the Registry of )1esne Conveyances is necessary in order to establish 

legal title within the meaning of section 

15-67-210. This lack of precedent is not 

surprising because "recording becomes material only when there are double conveyances by the same person, or where there 

are subsequent creditors." First Carolina.s Joint Stock Land Bank v. Hudgens, 171 S.C. 18, 21, 171 S.E. 449, 451 

(1933). Neither of these situations is involved in this case. 

Because the South Carolina legislature 

recognized in section 27-15-30 that the 

1764 survey of Catawba lands was duly 

filed, we conclude that based on its precedents the Supreme Court of South Carolina 
558 

1450 865 FEDERAL REPORTER, 2d SERIES 

would hold that the tribe's claim to legal 

title for the purpose of inYoking the pre· 

sumption provided in section 15--67-210 is 

not defeated by lack of recording in the 

Registry of Mesne Conveyances. 

IV 

The state also argues that the tribe lacks 

legal title because Indian title cannot be 

alienated except by Act of Congress. 

Without the ability to alienate the tract of 

fifteen square miles, the state argues the 

Indians had only equitable, not legal, title. 

The state's argument requires us to ex· 

amine the relationship of the United States 

as a guardian or trustee for the tribe par· 

ticularly with respect to the nature of the 

tribe's Indian title. In Oneida Indian .\'a· 

tion v. County of Oneida, 414 U.S. 661, 

667~8. 94 S.Ct. 772, 717-78, 39 L.Ed.2d 73 

(1914), the Court succinctly stated the na· 

tion's policy with respect to lands occupied 

by Indians: 

It very early became accepted doctrine 

in this Court that although fee title to 

the lands occupied by Indians when the 

colonists arriYed bec2me ,·ested in t he 

sovereign-first the disco,·erir.g Europe· 

a.n a~ ion a nd la~r t he crigina l States 

ar.d tho: Cmted States- a right of occ u· 

pc. i'cy in the :,dia.:-~ tribes was n~\ E- rthe · 

Jess ; -:: cognized. Th at rlgi!t, 60m-:; t;me s 

cal: ed Indian tltle and good againsl ;;li 

but the sovereign, cou~ ci be te rmir,at.ed 

on!y ~y SO\"e re:g:; C..CL o~cP. t,:O,c Cr. :tc:d 

-:.-~: .>~s was ga :t:::J z::d G:: Ccn3 it ~· 

:io:1 adofJt.ed, Lht:s e t: ib;.) :<ih:..S tn !:J d;an 

la rJd s becs.rr. e the 2):•:L.;.s; ve o\ nc e of 

:~:; fed eta! b ;... L· :.l :~ r::i·::, rec:og~.:ze d 

to be on1y a righ t of occupc.nc:_,·, ·.vas 

extinguishable Oil ly by ~:e l._7nited Stales. 

The Federal Go\' err men~ took early ~tep s 

to deal "-ith the Indians through tre;;ty, 

the principal purpose often being to rec· 

ognize and guarantee the rights of Indians to specified areas of land. . . . The 

United States also asserted the primacy 

of federal law in the first ~on ntercou rse 

6. In 1838, South Carolina transferred its reversionary interest in the tribe's land to lessees of 

the land. See § 27-15-30. This reversionary 

interest, conditioned upon the United States exAct passed in 1790, 1 Stat. 137, 138, 

which pro,·ided that "no sale of lands 

made by any Indians ... within the United States, shall be valid to any person 

. .. or to any state ... unless the same 

shall be made and duly executed a t some 

public treaty, held under the authority of 

the United States." This has remained 

the policy of the United States to this 

day. 

[8) The original 13 states hold the unde rlying fee simple title for lands subject 

to Indian title within their respective bor· 

ders. See Fletcher v. Peck, 10 U.S. (6 

Cranch) 87, 139-43, 3 L.Ed. 162 (1810). 

Elsewhere the United States holds fee simple title. But this naked fee gives the 

holder no possessory interest in the land. 

It constitutes merely a reversionary inter· 

est until Congress extinguishes the Indian 

title. 6 Congress's exclusive right to extin· 

g uish Indian title results from its trust 

relationship over Indian tribes. F. Cohen, 

Handbook of Federal Indian Law, 489 

(1982 ed.). The federal trust relationship 

over Indian tribes is derived from the con· 

stitutional power conferred on Congress to 

r egulate commerce with the Indi an tribes 

a nd to make treaties. U.S. Const. art. I, 

§ 8, cl. 3; art. II, § 2, cl. 2; see .lfc Cla na· 

han v. Arizona State Tax Comm'n, 4: l 

U.S. 164, 172 n. 7, 93 S Ct. 1257, ~262 n. 7, 

36 L.Ed.2d 129 (191 3); F . Coh.:!': , Handbook of Federal ! ndi(cn L•1i•.· .. 20>12 (19 22 

ed.). 

In Johnson 1'. ~f("ln!os.h ~ 21 1.: ::;. (S 

\rheat.) 543, 574, 5 I. .. Ed . c~;~~ ~28) , Ch t; :~ 

Justice ?oriars!-.all des(·;·ibed ;::. tr i· e i·~c.l:.h ;- g 

Ir: di an title " as the it tc :} oc cl;p~:I · of 

I he soil, with a legal as .. -.·ell as ju:: r . .-: ~:-.. :rJ ::;) 

r etain poSsession of it. n Rec a\.~ t: €: cn]y e 

Cnited States could Extinguish the tribal 

right, a conveyance by the tribe without 

the assent of the Cnited States v•as inoper· 

ative. Johnson's principles, as deve loped 

in subsequen t decisions, indicate that "Indi· 

an title represents a perpetual right of use 

and occupancy (until ex tinguished) virtually 

equivalent to a fee interest against all but 

tinguishing the tribe's Indian title, is so remote 

that, like a possibility of reverter, it does not 

rise to the dignity of an estate. See Adams v. 

Chaplin, 10 S.C.Eq. (1 Hill) 265, 277 {1833). 
559 

CATAWBA INDIAN TRIBE v. STATE OF S.C. 1451 Cite .. 865 F.2d 1444 (4th Clr. 1969) 

the United St2.tes." F. Cohen, Handbook haps in no other context is this anomaly 

of Federal Indian Law 488, 489 (1982 ed.). more apparent than the government's 

Johnson dealt with aboriginal land, but trusteeship of Indian lands. Indian title is 

the Court has applied similar principles to not a common garden variety equitable title 

lands that were the subject of grants or entirely governed by the precepts of chan· 

resen·ations by the crown. In Mitchel v. eery. It is a title derived from aboriginal 

United States, 34 U.S. (9 Peters) 711, 9 possession subject to the right of discovery 

L.Ed. 283 (183.5), the Court recognized Indi- and conquest and in many instances, as 

an title that originated in royal grants. here, dignified by royal grant. "The rudiSpeaking of rights conferred on the Indi- mentary propositions that Indian title is a 

ans, the Court said that "it is enough to matter of federal law and can be extinconsider it as a settled principle, that their guished only with federal consent apply in 

right of occupancy is considered as sacred all the St2.tes, including the original 13." 

as the fee-simple of the whites." 34 U.S. (9 Oneida, 414 U.S. at 670, 94 S.Ct. at 778. 

Peters) at 746. The Court has instructed that the Indians' 

Again, in r..:nited States v. Shoshone 

Tribe, 304 U.S. 111, 117, 58 S.Ct. 794, 798, 

82 L.Ed. 1213 (193S), the Court said: "Although the Cnited States retained the fee, 

and the tribe's right of occupancy was incapable of alienation or of being held otherwise than in common, that right is as sacred and as securely safeguarded as is fee 

simple absolute title." 

In United States v. Tillamooks, 329 U.S. 

40, 46, 67 S.Ct. 167, 170, 91 L.Ed. 29 (1946), 

the Court reiterated: "As against any but 

the sovereign, original Indian title was ac· 

corded the protection of complete ownership; but it was vulnerable to affirmative 

action by the sovereign, which possessed 

exclusive power to extinguish the right of 

occupancy at will." But termination at will 

does not leave a tribe wholly unprotected. 

The Court held: 

The power of Congress over Indian affairs may be of a plenary nature; but it 

is not absolute. It does not "enable the 

United States to give the tribal lands to 

others, or to appropriate them to its own 

purposes, without rendering, or assuming an obligation to render, just compen, 

sation for them." 

329 U.S. at 54, 67 S.Ct. at 174. 

In United States v. Kagama, 118 U.S. 

375, 381, 6 S.Ct. 1109, 1112, 30 L.Ed. 228 

(lSEG), :~.~ C0'.1:--t cbserwd: "The relation 

of the Indian tribes living within the borders of the United States, both before and 

since the Revolution, to the people of the 

United States has always been an anomalous one and of a complex character." Perright of occupancy is to be "as securely 

safeguarded as is fee simple absolute title." Shoshone, 304 U.S. at 117, 58 S.Ct. at 

798. Indian title confers on a tribe occupying the soil ·•a legal as well as just claim to 

retain possession of it." Johnson, 21 U.S. 

(8 Wheat.) at 574. A legal claim presupposes a legal title. Chief Justice Marshall 

did not speak of an equitable claim based 

on equitable title. These precedents establish that as a matter of federal law, for the 

purpose of recovering possession of real 

property and damages against any defendant other than the United States, Indian 

title is equivalent to fee simple absolute 

title. It is legal title. 

[9] The argument that the Catawbas 

have equitable title precluding the tribe 

from invoking the presumption afforded by 

section 15-67-210 conflicts with the policy 

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 trusteeship 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 dispossess 

a tribe and then defeat a tribe's legal claim 

to possession by denomi!:c.ting its title as 

equitable. Fortunately, we need not address these constitutional issues because 

we have no doubt that the Supreme Court 

of South Carolina, taking cognizance of 
560 

1452 865 FEDERAL REPORTER, 2d SERIES 

federal precedents and its own precedent~ . 

would hold that section 1~67-210 entitles 

the tribe to the presumption of possession. 

v 

Having determined that the tribe's Indian title is legal title within the context of 

section 1~67-210, we must next decide the 

effect of the statutory presumption of pos· 

session on the rights of the tribe and the 

rights of the present occupants. 

Standing alone South Carolina's 10-year 

statute of limitations would bar the tribe's 

claim.' This is the basis of the district 

court's opinion, and it is the position urged 

by the state. Section 15-3-340 provides: 

No action for the recovery of real prop· 

erty or for the recovery of the possession 

thereof shall be maintained unless it appear that the plaintiff, his ancestor, 

predecessor or grantor, was seized or 

possessed of the premises in question 

within ten years before the commencement of such action. 

But the 10-year statute cannot be read in 

isolation. It must be read in conjunction 

v.1th section 1~7-210. This section pro· 

vides: 

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 

possessed thereof within the time re· 

quired by law. The occupation of such 

premises by any othe r person shall be 

deemed to have been under and in subor· 

dination 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. 

This section is applicable to the tribe's 

claim. It brought an action to recover possession of real property. It has legal title 

to the property. Consequently, it is "pre· 

sumed to have been possessed thereof 

within the time required by law." What 

time? The 10 years specified in section 

7. South Carolina also recognizes a 20-year pre· 

sumption of grant doctrine and a 40-year stat· 

ute of repose, § 15-3-j30. But these are not an 

issue in this case. 

15-3-340 that is a prerequisite fo r bringing 

an action for the recovery of real property. 

Therefore, the plain text of sections 15-3-

340 and 15-67-210 authorizes the tribe to 

maintain its action to reco\·er possession of 

their tribal lands. 

The state, however, contends that inasmuch as the tribe acknowledges that it has 

not been in possession of the land since 

1840, this judicial admission precludes it 

from relying on the presumption. It relies 

on the axiom that a presumption must give 

way to reality when a fact is shown, and 

for this proposition it cites cases that do 

not discuss section 15-67-210. 5 

The difficulties with the state's argument are several. The tribe never admit· 

ted that it is not entitled to the presump· 

tion of possession. It has steadfastly main· 

tained that its legal title enables it to claim 

possession for the necessary 10 years to 

maintain this action. 

Section 1~67-210 does not require a 

plaintiff to show both legal title and pos· 

session, and we decline to place such a 

gloss on the statute. True, the presump· 

tion of possession is not conclusive. It can 

be rebutted, and the statute expressly 

states how it can be rebutted. Rebuttal 

may be accomplished according to the 

terms of the statute by showing "such 

premises have been held and possessed ad· 

versely to such legal title for ten yeus 

before the commencement of such ac tion." 

The statute does not allow rebutta l by sim· 

ply showing that the plaintiff has not been 

in possession or that the plaintiff has ad· 

mitted lack of possession. 

The tribe 's position is sustained by L01•e 

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

In that case the plaintiff claimed title to a 

100-acre trac t by a grant from the state, 

subsequent deeds, and a will. The defend· 

ant denied the plaintiff's title and pled the 

statute of limitations and adverse posses· 

sion, claiming title through a sheriff's deed 

and subsequent deeds. Judgment was en· 

8. See, e.g., Galpin v. Page, 85 U.S. 350, 366, 21 

L.Ed. 959 (1873); Fouche v. Royal Indemnity Co. 

of New York, 217 S.C. 147, 60 S.E.2d 73 (1950); 

Kaylor v. Hiller, 77 S.C. 393, 58 S.E. 2 ( !907). 
561 

CATAWBA INDIAN TRIBE v. STATE OF S.C. 1453 Cite as 865 F.2d 1444 (4th Clr. 1989) 

tered for the plaintiff, and the defendant 

assigned error to the trial court's refusal to 

give the following charge: 

If neither the plaintiff nor any one under 

whom he claims title to the land in dispute has been seized or possessed of the 

land in question within ten years before 

the alleged acts of trespass were committed, then the plaintiff cannot recover. 

71 S.C. at 330, 51 S.E. at 104. Ruling on 

this assignment of error, the Supreme 

Court said: 

If plaintiff had the legal title, he was 

presumed to be possessed of the land 

within the ten years, and it was necessary to rebut this presumption by proof 

of continuous adverse possession of some 

other person for ten years. The request 

embodying the foregoing proposition 

was, therefore, properly refused. (citations omitted) 

71 S.C. at 330, 51 S.E. at 104. It should be 

noted that the charge, which the defendants sought and the court properly refused, 

is similar to the proposition the state asserts in the instant case. The court's ruling reflects the position of the tribe. 

Similarly in Crotwell v. Whitney, 229 

S.C. 213, 92 S.E.2d 473 (1956), the Court 

applied the predecessor of section 15-67-

210 without the gloss that the state now 

seeks. In Crotwell, the plaintiffs founded 

their claim to title upon a deed executed by 

their father. The defendants claimed under a tax deed, ad\·erse possession, presumption of a grant, and laches. The trial 

court entered judgment for the plaintiffs, 

and the Supreme Court affirmed, holding: 

Plaintiffs having established their legal title to the premises, appellant Whitney's claim of title by adverse possession 

required proof of actual, open, notorious, 

hostile, continuous and exclusive possession by him, or by one or more persons 

through whom he claimed, for the full 

statutory period of ten years, without 

tacking of possession except by descent 

cast. 

229 S.C. at 220-21, 92 S.E.2d at 477. 

Again, the Court's construction of the statute is precisely that which the tribe asserts 

should be applied to its claim. 

In Crotwell, the Court cited as authority 

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

S.E. 727 (1923), a case on which both parties rely. The plaintiff in Haithcock alleged title to 37 acres. The defenses were 

a general denial, adverse possession for 35 

years, and the statute of limitations for 10, 

20, and 30 years. The plaintiff prevailed, 

and the defendant appealed, assigning numerous errors. The Supreme Court affirmed. It held that the charge was correct and ordered that it be reported. Thus, 

the precedent established by the case is set 

forth in the charge. 

The trial court explained to the jury that 

a man may obtain title by grant. It said: 

The title to all land was originally in 

the state, in the sovereign, or, prior to 

the Revolution, in the crown of England 

-and that is called the source of all title, 

in the state. So the first way in which a 

man may establish title to land is by 

showing a grant from the state, the 

source of all title, to himself, or a grant 

from the state to some one, and then by 

successive deeds, down to him. That is 

called a perfect legal paper title, a deed 

to himself, and then tracing back to some 

one else and to some one else, until it 

reaches the state, and then a grant from 

the state to the first holder of the land. 

123 S.C. at 66-67, 115 S.E. at 729. This is 

precisely the way the tribe obtained title--

by a grant from the English Crown before 

the Revolution. By well established law, 

and as a matter of fact, South Carolina 

recognized the grant. 

The Haithcock trial court then explained 

how a defendant can defeat title. As a 

part of its charge it explained the 1 0-year 

statute of limitations now codified as section 15-3-340 upon which the state relies. 

The state quotes the following extract of 

the charge to establish its position: 

[The defendant] may defeat the plaintiff's title by showing that the plaintiff 

himself has not been in possession for 10 

years next before the beginning of this 

action; for, gentlemen, the law makes 

possession a very strong factor in the 

question of title to real estate, and it 

says that if a man stays out of posses-
562 

1454 865 FEDERAL REPORTER, 2d SERIES 

sion for 10 years, asserts no claim to a 

piece of property, does not occupy it by 

himself or tenants, and lets that situation 

remain for 10 years, the law says that it 

is too late for him to come in, that he is 

barred by the stat;.:te of limitations, and 

ha\·ing slept on his rights for as long as 

10 years, he cannot come in afterwards 

and assert his rights. 

123 S.C. at 69, 115 S.E. at 729. Taken in 

isolation out of context this extract from 

t he charge would seem to support the 

state. But it does not. For in the next 

paragraph of the ch arge, which the state 

omitted to quote, the Court explained that 

possession could be established by the presumption that is r.ow codified as sectio n 

15-67-210 upon which the tribe re li es. The 

Court said: 

Kow, what is possession of land? 

charge you that, under the law, if one 

shows paper title-a deed or will or legal 

paper title of any kind, to land-then the 

law presumes that he was in pos:;ession 

of that land, aP.d that his title gi"es him 

the possession; that is, the possessio n 

follows the title. Perhaps I had better 

read you what the statute says on that 

question. :\ow, pay aw::ntion to this, 

because this is the act of the Legislature, 

and is the law that governs us all: "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 ha\·e been 

possessed thereof v.ithin the time required by law; and the occu pation of 

such premises by any othe r person shall 

be deemed to ha\-e been under and in 

subordination to the legal title, unless it 

appear that such premises have been 

held and possessed acversely to such legal title for 10 years before the commencement of such action." Code Civ. 

Proc. 1912, § 126. 

In other words, gentlemen, the Ia w 

presumes, where a man shows title, he 

need not be on the land, he need not be in 

10 miles of the land , if he shows perfect 

legal title, then t he law says tr.e possession follows the title, and he is deemed to 

be in possession if he show a good legal 

title to the land, aithough he may never 

have seen the land; and that presumption holds unless, and until, some one 

else goes on the land and occupies and 

holds it adversely to that right for 10 

consecutive years. 

123 S.C. at 69-10, 115 S.E. at 729-30. It is 

quite apparent that the trial court's charge, 

approved by the Supreme Court of South 

Carolina, expressly refutes the state's argument. It is difficult to envision how a 

plaintiff who has "not been in 10 miles of 

the land" or who "may never have seen the 

land" could satisfy the state's argument 

that he must also be in possession of the 

land for 10 years. The correct ana lysis of 

the law, as the trial co urt lucidly explained 

in Haithcock, is that legal title without 

ac tual possession will satisfy the statutory 

presumption of possession. 

We conclude that the tribe is entitled to 

im·oke the presumption set forth in section 

15-Gi-220, aP.d its claim is not barred because it acknowledged that it did not actually possess the land for the 10 years specified in section 15-3-340. 

VI 

(10] The second sentence of section 15--

67-210 defines both the status and the 

rights of the present occupants. The first 

clause provides: "The occupation of such 

premises by any other person shaH be 

deemed to ha\·e been under and in subordination of the legal title .... " This clause 

withou t more would defeat the state's 

claim, for permissive possession is not adverse. Haithcock, 123 S.C. at 84, 115 S.E. 

at 734. But the clause is subject to this 

important proviso, "unless it appear that 

such premises have been held and pos· 

sessed adversely to such legal title for ten 

years before the commencement of such 

action." This proviso wouid appear to 

doom the tribe's claim, because this action 

was not commenced until 1980. But South 

Carolina's tacking doctrine forestalls this 

conclusion. 

The doctrine is succinctly stated by 

David H. Means, Professor of Law, Univer· 

sity of South Carolina, as follows: 
563 

CATAWBA INDIAN TRIBE v. STATE OF S.C. 1-155 Cite IUI865 F.2d 1444 (4th C1r. 1989) 

The rule in this State, contrary to the who must rely on prohibited tacking cannot 

view of the overwhelming majority of prevail ag2inst the tribe. 

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 anceswr 

dying intestate. (footnotes omitted) 

D. Means, Survey of South Carolina Law: 

Property, 10 S.C.L.Q. 90 (19.57). 

Ellen v. Ellen, 16 S.C. 132, 141 (1881), 

explains the reason tacking is prohibited: 

[A]n adverse possessor is a trespasser 

from the beginning to the end. His possession begins in trespass, and so continues until it ripens into a right at the end 

of the statutory period of ten years. 

During this time he has nothing that he 

can convey; ncr can !-:is posses;:ion be 

tacked with that of his grantee so as to 

defeat the title of the true owner. 

In contrast, an heir can tack the possession 

of his anceswr dying intestate "upon the 

theory that there is no new entry or trespass, but that the possession of the anceswr is cast by operation of law upon the 

heir, hence there is no break in the continuity of possession." Burnett v. Crawford, 

50 S.C. 161, 166, 27 S.E. 645, 647 (1897).9 

South Carolina's prohibition against tacking applies to both a plaintiff who seeks to 

establish title by 10 years of adverse possession and a defendant who asserts the 

10-year statute of limitations, section 15-

3-340, as a defense. See, e.g., Haithcock, 

123 S.C. at 75, 115 S.E. at 731 (plaintiff); 

and Crotwell, 229 S.C. at 221-22, 92 S.E.2d 

at 477-78 (defendant). 

Application of South Carolina's tacking 

doctrine precludes the tribe from prevailing 

against a person who owns property that 

has been held adversely for 10 years in the 

relevant period of time without tacking except by inheritance. Conversely, a person 

9. Tacking is permitted when a claim or defense 

is founded on the 2G-year presumption of a 

grant or on 1he 4G-year statute of repose. D. 

VII 

In view of the dissent's concern, a brief 

explanation of the district court's jurisdiction is appropriate. In paragraph 2 of its 

complaint, the tribe invoked jurisdiction 

pursuant to 28 U.S. C. § 1331 (federal question), § 1337 (an action or proceeding arising under an act of Congress regulating 

commerce), and § 1362 (claim asserted "by 

any Indian tribe or band with a governing 

body duly recognized by the Secretary of 

the Interior, wherein the matter in contra· 

versy arises under the Constitution, laws, 

or treaties of the United States."). In 

paragraph 3, the tribe alleged that its 

claims for relief arise under the Treaty of 

Pine Tree Hill, the Treaty of Augusta, Article I, Section 8 and Article VI of the Consti· 

tution (Commerce Clause and Supremacy 

Cl?.use), and 25 U.S.C. § 177 (the Indian 

N onintercO\lr:'•: Act). 

[11] On the basis of the facts assumed 

for the purpose of considering the summary judgment motion, which the state filed, 

there is no suggestion that the district 

court would have lacked jurisdiction to decide the tribe's claim if the tribe had 

brought its action before the passage of 

the Catawba Act in 1962. The question, 

therefore, is to what extent Congress intended the Catawba Act to affect the 

tribe's claim. In South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. at 510, 

106 S.Ct. at 2046, the Supreme Court answered this question, saying: 

We do not accept petitioners' argument 

that the Catawba Act immediately extinguished any claim that the Tribe had 

before the statute became effective. 

Rather, we assume that the status of the 

claim remained exactly the same immediately before and immediately after the 

effective date of the Act, but that the 

Tribe thereafter had an obligation to proceed to assert its claim in a timely manMeans, Survey of South Carolina Law: Property, 10 S.C.L.Q. 90, n. 2 (1957). 
564 

1456 865 FEDERAL REPORTER, ~d SERIES 

ner as would ;;ny other person or citizen 

within the State's jurisdiction. 

The Court's explanation establishes that, 

with the exception of the application of the 

state statute of limitation, Congress intended that e,·ery element of the tribe's claim 

"remained exactly the same immediately 

before and immediately after the effective 

da te of the Act." The tribe's capacity to 

invoke federa l jurisdiction pursuant to 28 

U.S.C. §§ 1337 and 1362 was not defeated 

by the enactment of the Catawba Act. 

[12] Section 1331 provides another independent basis for jurisdiction. This section 

gi,·es district courts jurisdiction of "all civil 

actions arising under the Constitution, 

laws, or treaties of the United States." 

The tribe's complaint alleged a right of 

occupancy under treaties with the British 

Crown that were implemented by the Nonintercourse Act. These allegations of Indian title sufficed to satisfy the well-pleaded 

complaint rul e. 

The tribe's alleg;;tions distinguish the 

case from Taylor v. Anderson, 234 U.S. 74, 

34 S.Ct. 724, 58 L.Ed. 1218 (1914), where 

federal jurisdiction was Jacking. In that 

case the plaintiffs did not allege Indian 

title, but only that the defendant's title was 

void because of an Act restricting alienation of Chocta·,- and Chickasaw allotments. The distinction is fully explained in 

Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 

'i3 (1974), which held that a complaint alleging right of occupancy based on Indian or 

aboriginal title protected by the N onintercourse Act established jurisdiction under 

section 1331. Oneida explained that the 

right to possession under a claim of Indian 

title is based on federal Jaw. Therefore, 

the federal issue does not arise solely in 

anticipation of a defense. Oneida also reiterated that Indian title is a matter of federal law and that it can be extinguished only 

v;ith federal consent. 414 U.S. at 666-74, 

94 S.Ct. at 716-81. In South Carolina v. 

Catawba Indian Tribe, Inc., 476 U.S. at 

510, 106 S.Ct. at 2046, the Court held that 

the Catawba Act did not extinguish the 

tribe's claim of Indian title. 

:,fany fet.!eral issues remain to be tried 

on remand, and the tribe may ultimatelv 

lose its case. Nevertheless, -here, as i~ 

Oneida, the tribe's assertion of a federal 

right of occupancy governed by federal Jaw 

is not "so deYoid of merit as not to involve 

a federal controversy within the jurisdiction of the district court." 414 U.S. at 666, 

94 S.Ct. at i'i6. The principles explained in 

Oneida demonstrate that the tribe's complaint did not run afoul of the well-pleaded 

complaint rule. 

We conclude that sections 1331, 1337, 

and 1362, and each of them, confer jurisdiction on the district court. ?11oreover, the 

Supreme Court has definitively decided the 

effect that Congress intended the Catawba 

Act to ha\·e 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, 106 S.Ct. at 2046. Sound pri~­

ciples 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, 3 L.Ed. 220 (1810). 

VIII 

We hold that sections 15-3-340 and 15-

67-210 bar the tribe's claim against each 

person who holds and possesses property 

that has been held and possessed adversely 

for 10 years after July 1, 1962, and before 

October 20, 1980, without tacking except 

by inheritance, in accordance with South 

Carolina's tacking doctrine. The statutes 

of limitations do not bar the tribe's claim 

against other persons. "Person" includes 

joint tenants, tenants in common, partnerships, associations, and corporations. 

The judgment of the district court is 

affirmed in part and reversed in part, and 

this case is remanded for further proceedings consistent with this opinion. Each 

party shall bear its own costs. 

WIDENER, Circuit Judge, dissenting: 

Although I join in Judge Hall's dissent, I 

write separately to add a few words. 
565 

CATAWBA INDIAN TRIBE v. STATE OF S.C. 1457 Cllc •• 565 F.2d 1+14 (4th Ctr. 1989) 

First, the Supreme Court has not hesitat· it. In South Carolina, the "allegations, 

ed to dismiss actions on grounds akin to statements or admissions contained in a 

jurisdictional even after prolonged litiga- pleading are conclusive as against the 

tion. In Hughes Tool Co. v. Trans World pleader." Elrod v. All, 243 S.C. 425, 134 

Airlines, 409 U.S. 363, 93 S.Ct. 647, 34 S.E.2d 410, 416 (1964). In their complaint, 

L.Ed.2d 5i7 (1973), the Court dismissed the the Catawbas admit being out of possesaction, finding that the defendant's actions sian since 1840. The presumption of paswere immune from the antitrust laws. The session in fa,·or of the Catawbas, assuming 

dismissal took place some eleven years af- arguendo that they have "legal title," has 

ter the suit began and seven years after therefore been rebutted. The majority's 

the Supreme Court had the opportunity to approach, not permitting the defendants to 

address the same issue and did not.t rebut the presumption of possession once 

Hughes Tool Co., 409 U.S. at 392• 93 S.Ct. legal title is established (except by adverse 

at 663 (Chief Justice Burger dissenting). possession), defeats the very purpose of Merely because the Catawbas' suit has South Carolina's statute of limitations by been in the court system for some time and 

the Supreme Court has addressed the suit allowing a stale claim. If South Carolina 

without explicitly considering jurisdiction is had intended to give parties who could esno reason to shy away from the jurisdic- tablish "legal title" no time limit to file 

tiona! issue. Hagans v. Lat•ine, 415 U.S. suit, it could have done so instead of mere528, 534-35 n. 5, 94 S.Ct. 1372, 1378 n. 5, 39 ly creating a presumption of possession. 

L.Ed.2d 5i7 (1974). Civil presumptions in South Carolina are 

Second, I see no reason why the presumption of possession relied upon by the 

Catawbas to save their action from South 

Carolina's statute of limitations is not rebutted by the Catawbas' judicial admission 

that they had been out of possession for 

140 years when they filed suit. Although 

there are no South Carolina cases, similar 

presumptions in other States have been 

subject to rebuttal. See Beneficial L1je 

Ins. Co. v. Wakamatsu, 75 Idaho 232, 270 

P.2d 830 (1954). In Kirkman v. Holland, 

139 N.C. 185, 51 S.E. 856, 857 (1905), the 

court would not even consider the presumption of possession arising from a statute 

indistinguishable from the one at issue 

here, gi"en a judicial :Jdmission rebutting 

I. ln 1964, th e Supreme Court granted certiorari, 

but, after oral argument and briefing, which 

included the issues upon which the case was 

ultimately decided, in 1965 dismissed the writ 

as improvidently granted. Hughes Tool Co., 409 

U.S. at 391-92, 93 S.Ct. at 662-63. The Court 

nevertheless did not hesitate to dismiss the suit 

on the same grounds in 1973 when the case was 

there a second time. 

I have used the words "akin to jurisdictional" 

in an abundance of caution and out of defer· 

ence ;o the Court in Hughes Tool which stated 

that the Federal Aviation Act did not "completely replace" the antitrust laws. Of course if 

Hughes Tool is not purely jurisdictional, it is an 

even stronger precedent for my point of view 

than a case decided on a question relating pureusually rebuttable. Palm v. General 

Painting Co. Inc., 296 S.C. 41, 370 S.E.2d 

463, 466 (1988) (presumption of legitimacy 

when born in wedlock); McDowell v. S.C. 

Dept. of Social Services, 296 S.C. 89, 370 

S.E.2d 878, 880 (App.l987) (presumption of 

gift to a close relative); Touchberry v. 

City of Florence, 295 S.C. 47, 367 S.E.2d 

149, 150 (1988) (presumption that public 

contract not enforceable by an individual as 

third party beneficiary); Mathias v. Hicks, 

363 S.E.2d 914, 916 \S.C.App.l987) (presumption that collateral is worth indebtedness); Woo ds v. Bivens, 292 S.C. 76, 354 

S.E.2d 909, 911 (1987) (presumption that 

possession of one tenant in common is possession by all); Estate of Mason v. Mason, 

ly to subject matter jurisdiction. In this respect, 

I note that the Second Circuit, in an earlier 

appeal in this same case, Trans World Airlines v. 

Hughes, 332 F.2d 602 (2d Cir.1964), treated the 

question as jurisdictional and that Sullivan in 

his treatise, Anritru.st, West 1977, p. 746, et seq, 

considers the question one of primary jurisdiction. I also note that the Court in Hughes Tool, 

409 U.S. at 364, 365, n. I, 93 S.Ct. at 650, n. I, as 

precedent for proc~eding as it did, relied 6n 

Indianapolis v. Chase National Bank, 314 U.S. 

63,62 S.Ct. 15, 86 LEd. 47 (1941), in which case 

a question of jurisdiction which had been 

presented to the Court, but not decided, was 

later decided upon subsequent consideration by 

the Court. 
566 

1458 865 FEDERAL REPORTER, 2d SERIES 

289 S.C. 273, 346 S.E.2d 28, 31 (A.pp.1986) 

(presumption that a missing will was destroyed by testator); McBride v. Atlantic 

Coast Line R. Co., 140 S.C. 260, 138 S.E. 

803, 807 (1927) (presumption that when railroad fails to use warning signals that the 

failure is proximate cause of injury); 

Mdfillan 11. General American L1[e Ins. 

Co., 194 S.C. 146, 9 S.E.2d 562, 574-7.5 

(1940) (presumption against suicide). Logic 

and South Carolina precedent require, I 

think, the conclusion that the presumption 

of possession created in S.C.Code 

§ 1~7-210 is also rebuttable and has 

been rebutted in this case by the admission 

of the Catawbas. 

Circuit Judge H_.l,LL, joins in this 

dissent. 

HALL, Circuit Judge, dissenting: 

As an intellectual exercise, I disagree 

with the majority's analysis of South Carolina law as it relates to the Catawbas' 

1. The majority mechanically rejects any role for 

§ 15-3--3i0 on the ground that it specifically 

applies only to minors, me:1tal incompetents, 

and prisoners. The majority fails to recognize, 

howe\·er, that the statute was broadlv \.I.Titte:1. to 

cover all classes of citizenry nor:naily assumed 

to be ur.der a :ega! disabillty. See .51 Am.J;..~.r.2d, 

Limitatio~s of Ac:ion §§ 178 et seq. Althoug!1 

the South Carolina legislature did r:ct expressly 

prov:de for India:1s, it cieariy Gici inte:1d that 

any So~...::h Carolina citizen \•:~~os:.: It>ga! status 

assertion of kgd :·jghts would 

-..,ithin :e:: y~::1: ::. of a ch.:u-:ge 

~:-z,t The Cata',.;.;(:ac-,' :,r_tk.·n, in r.;:· 

Lh::. t 

1. In rcasn:·;i:lg tf.at indiaTi 1~ ler.ai til~e 

cor!err:r:g a presa!iiytion ;JGSsc:.sion under 

§ 1.:-67-210 and, thereby Ct.:::.ea ing :he ten-year 

:;t.J.·.·:te of limitations prm.: ic'erJ i~ ~ § 15-3-340, 

tb·~ majority has permitted an ex.::eption to de-

\'Our the rule. South Caroli:-1a has clearly 

soc:ght to impose finality in ;:JOtec.tial land dis· 

putes by requiring a party out of actual possession to bring an action within ten years. The 

only exception to that general rule is the pre· 

sumption of possession accorded the holders of 

"legal title" by § 15-67-210. Logically, haw· 

ever, "legal title" must be some mechanism that 

would give adequate notice to another claimant 

that the statute of limitations is unavailable. 

South Carolina law unquestionably treats 

recordable titles "ith special deference. South 

Carolina Code § 15-3--380 specifically provides 

duty to assert their claim within ten years 

of the Tribe's 1962 dissolution. In my 

view, either the removal of disability provision of S.C. Code § 15--3-370 1 or the more 

general statute of limitations in S.C.Code 

§ 15--3-340 2 would effectively bar the Catawbas' instant possessory action. My 

principle objection to the majority's decision is more fundamental, however. In 

light of the Supreme Court's discussion of 

the effect of the Catawba Indian Tribe 

Division of Assets Act, 25 U.S.C. §§ 931-

938 in South Carolina v. Catawba Indian 

Tribe, 476 U.S. 498, 106 S.Ct. 2039, 90 

L.Ed.2d 490 (1986), and the well-established 

jurisdictional doctrine of Taylor v. 

Anderson, 234 U.S. 7 4, 34 S.Ct. 724, 58 

L.Ed. 1218 (1914), I am persuaded that 

federal jurisdiction over the Catawbas' 

claim has never existed. 

In the original complaint, the Catawbas 

sought to invoke federal jurisdiction on 

three bases: (1) federal question pursuant 

that a chain of title "by ,·irtue of a written 

instrument" extending for forty years "shall be 

deemed valid against the world." In my view, 

the presumption of possession in§ 15--67-210 is 

a product of the same rationale that produced 

§ 15-3-380. Although it has not been expressly 

asserted on appr::al, I am convinced that t!-:e 

present South Caroii::a lar:dholders, who undoubtedly have chains of title exceeding forty 

years, are entitied to p:·evai l under 15--3-3SO 

ar,d to defe3t the ;:::;es urr;;:;:_i on of possc:;:)ion 

§ 15-67-210. 

In reaching a :·J;,t::-ai'y pc s::ion, :h:: ;TJajor-:ry 

has fallen ir,to :he r1c-:-ass c:-eate:-:1 by ;,:c.rcle:-:.s 

language in older Sc:J::h C:~roh;,a 

decisions such cts H.:;.irJn'o{:A; ;; 

S.C. 61, 115 S.E. 72'7 (192:) . I~ !-Jc rh, r)d:, ti:~ 

term "title" :'! altern2:ivcly ;.;sed rete ;- tc J 

sL.perior possessor:·· in:.err.st as '>•.:ell 3S .:: :ega.l 

indicia of th:t inte:-e:.:t. Signific2r.tly, hv,.;.,ev:;. 

the court in Hai:hcock discussed the pcesurr,ption of possession only in cor.r:.tc:ion with a 

"paper title"-a recordable instrument, 123 S.C. 

at 69-70, 115 S.E. at 729-30. By focusing 

instead upon the four ways upon which a possessory interest in land can be validly obtained 

in South Carolina and granting to each a pre· 

sumption of possession, the majority has created a statute of limitations that doesn't limit 

anyone except panies who could not prevail in 

any event. I find this interpretation of the 

South Carolina statute utterly irrational. I also 

find the failure to address § 15-3-380 particularly troubling in light of the extensive treatment of South Carolina law attempted in the 

majority opinion. 
567 

CATAWBA INDIAN TRIBE v. STATE OF S.C. 1459 Cite"' 8M F.Zd 144-1 (4th Clr. t989) 

to 28 U.S.C. § 1331 [jurisdiction over "all Based on that pro\·ision, the Court clearly 

civil actions arising under the Constitution, concluded that after the 1962 effecti,·e date 

laws or treaties of the United States"]; (2) of the Catawba Act, the trust relationship 

Indian tribe pursuant to 28 U.S.C. § 1362 between the United States and the Cataw-

[jurisdiction over "all civil actions, brought bas was dissolved, the federal statutory 

by any Indian tribe or band with a govern- protection for Indians was no longer appliing body duly recognized by the Secretary cable to them and the laws of South Carof the Interior, wherein the matter in con- olina controlled their right, if any, to the 

troversy arises under the Constitution, land claimed in this case. Catawba, 106 

laws or treaties of the United States'']; and S.Ct. at 2043. 3 

(3) regulation of commerce pursuant to 28 It is now beyond question th::.t when the 

U.S.C. § 1337 [jurisdiction over a civil ac- plaintiffs/appellees initiated their action in 

tion arising under "any Act of Congress 1980 they were not Indians as that term is 

regulating .. commerce or protecting trade used in federal Jaw. At most, the appellees 

and comrii'erce against restraints and mono- are a collection of South Carolina residents 

polies"]. The last theory was advanced to of Indian descent who are successors in 

support the allegation that an 1840 convey- interest to a defunct tribe-a point expressance of the land at issue by the Catawbas ly acknowledged by the Supreme Court 

was achieved in contravention of the 1799 when it described appellees as "a nonprofit 

Indian Nonintercourse Act, 25 U.S.C. corporation organized under the Jaws of 

§ 177. The Supreme Court's decision in South Carolina in 1975." lOG S.Ct. at 2040 

Catawba leaves no doubt, however, that n. 2. The essential jurisdictional prerequineither section 1362 nor 1337 was ever a site for 28 U.S.C. § 1362-an "Indian tribe 

legitimate ground for federal litigation. . .. duly recognized by the Secretary of the 

In Catawba, the Court quoted prominent- Interior .... " was plainly absent. 4 Similarly from section 5 of the Catawba Act, ly, the dissolution of the Catawbas in 1962 

which provides that: undermined the jurisdictional validity of 

The constitution of the tribe adopted the Nonintercourse Act claim asserted unpursuant to sections 461, 462, 463, 464, der 28 U.S.C. § 1337. The continued exist465, 466 to 470, 471 to 473, 474, 475, 476 ence of a trust relationship is required in 

to 478, and 479 of this title shall be order to im·oke a Nonintercourse Act claim 

revoked by the Secretary. Thereafter, in federal court. See e.g., Joint Tribal 

the tribe and its members shall not be Council of Passamaquoddy Tribe v. Morentitled 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 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. 

3. The Court's reasoning was supported prominently by citation to cases such as Larkin v. 

Paugh, 276 U.S. 431, 48 S.Ct. 366, 72 L.Ed. 640 

(1928) (termination of trust relationship rendered consideration of land disputes appropriate in state courts, "the land being there.") Catawba, 106 S.Ct. 2045 n. 19. 

4. The unavailability of ~ction 1362 has particular significance in light of the fact that the State 

ton, 528 F.2d 370 (1975). 

Without sections 1362 or 1337, the only 

remaining ground on which appellees might 

assert federal jurisdiction is the general 

federal question provision of section 1331. 

A review of the history of this case reveals, 

however, that jurisdiction on that theory 

runs afoul of the long-established rule that 

a federal question must appear on the face 

of a "well-pleaded complaint." See Wright, 

Miller & Cooper, Federal Practice and 

of South Carolina is a named defendant. The 

statute abrogates a state's normally applicable 

immunity under the eleventh amendment. Lac 

Courte Oreilles Band, etc. v. State of Wisconsin, 

595 F.Supp. 1077 (W.D.Wisc.l984). If section 

1362 is, as I believe, inapplicable, the Catawbas' 

action against the S:a:e is constitutionally sus-

~ct. 
568 

1460 865 FEDERAL REPORTER, 2d SERIES 

Procedure: Jurisdiction 2d § 3566. The 

Catawbas' initial complaint, which asserted 

purely state claims for ejectment and trespass damages, failed that test. Indeed, 

federal law did not enter this case until it 

was belatedly asserted by the Catawbas in 

response to the defendants' attempted reliance upon South Carolina statutes of limitation. 

The Supreme Court in Taylor, supra, 

unhesitatingly applied the well-pleaded 

complaint rule to defeat a possessory land 

claim advanced by individual Indians. The 

Indians had alleged that certain defendants 

were in possession of Indian land in viola· 

tion of " legislation of Congress restricting 

the alienation of lands allotted to the Choctaw and Chickasaw Indians." 234 U.S. at 

14-75, 34 S.Ct. at 724. The Court reasoned 

that federal jurisdiction was lacking since 

the action was one for ejectment and the 

allegations involving federal law were "neither essential nor appropriate." ld. In approl·ing of the result in Taylor, modern 

commentators have agreed that an action 

for the possession of !and does not arise 

under federal law simply because there is a 

potential federal issue in the chain of title. 

Wright, ~.filler & Cooper, !d. , see also F. 

Cohen, Handbook of Federal Indian Law, 

312 (1982 ed.). 

The subsequent decision in Oneida Indian Nation v. County of Oneida, 414 U.S. 

661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974), 

recognized an exception to the Taylor rule 

for possessory actions brought by an Indian tribe in a current trust relationship with 

the federal government. In circumstances 

where the land title is under "continuous" 

federal protection, the Court reasoned that 

a right of possession necessarily raises a 

federal question. ld. at 676-77, 94 S.Ct. 

at 781-82. I see nothing in Oneida, how· 

ever, that would extend its reach to situations where there is no trust relationship 

that would indicate a "continuing federal 

5. Cer.ainly the Supreme Court did not intend 

for its decision to "disturb the well-pleaded complaint rule of Taylor v. Anderson," Oneida, 414 

U.S. at 677, 94 S.Ct. at 782. Lower courts have 

also recognized that Oneida left Taylor intact. 

See State of -'''ew York v. 1-l-nite, 528 F.2d 336, 

339 (2d Cir.J975) (concluding that Oneida was a 

"narrow ruling" based on the "unique relationinterest" in the land in dispute. 414 U.S. at 

683, 94 S.Ct. at 785, Rehnquist, J., concurring.5 It follows, therefore, that the Catawbas, who unquestionably had no trust 

relationship with the United States, have 

asserted what must be seen as a purely 

state law cause of action falling squarely 

within the jurisdictional limitations of Taylor v. A ndersou. 

I, of course, recognize that it is late in 

the day to raise a jurisdictional objection to 

this prolonged litigation. It is also true 

that this Court, as did the district court 

below and the Supreme Court above, has 

addressed this case on the merits without 

examining the jurisdictional implications. 

This omission is in large part a result of 

the parties' failure to raise the issue. It 

cannot, however, relieve us of our funda· 

mental responsibility to insure that we decide only those cases that fail within our 

lawful authority as a court of limited jurisdiction. 

We certainly cannot assume that the Su· 

preme Court's treatment of the merits in 

Catawba or even its remand of the state 

law issues to this Court amounts to a finding of jurisdiction. J urisdiction was not 

specifically addressed in Catawba. Moreove r, the Court itself has acknowledged on 

other occasions that the passing of a jurisdictional question sub silentio does not resolve that issue. Hagans v. La~ine, 415 

U.S. 528, 534-35 n. 5, 94 S.Ct. 1372, 1378 n. 

5, 39 L.Ed.2d 577 (1974). The existence of 

jurisdiction remains open for consideration 

when properly raised. 

The implications of the majority's decision are profound. The ownership inter· 

ests of over 25,000 South Carolina landowners will be impaired and in many cases 

overturned notv.·ithstanding chains of title 

of previously unquestioned \·alidity. If 

South Carolina law, which the Supreme 

Court has recognized as controlling, com· 

ship" between the federal government and lndi· 

an nations). In the present case, the "unique 

relationship" had obviously been terminated 

well before the litigation began. It is a clear 

failure to appreciate the interplay of Taylor and 

Ondda, as well as a serious misreading of Ca· 

tawba that dooms the effort to assen jurisdic· 

tion in section VII of the majority opinion. 
569 

HANSARD v. PEPSI-COLA :'ttETROPOLITAN BOTTLING CO. 1461 Cite .. 865 F .2d 1461 (5th Clr. 1989) 

pels that result then so be it. It offends dence was sufficient to support jury's verreason and justice, however, for the assess- diet that former employee was discrimiment of South Carolina law to be conducted nated against because of his age; (2) emby a court without jurisdiction and with no ployee was not entitled to back pay after 

special familiarity with the relevant law. 6 March, 1984; and (3) employee was entitled 

I am persuaded that, today, we are such a to prejudgment interest. 

court. Accordingly, I respectfully dissent 

from the majority's resolution of this matter. 

Andrew W. HANSARD, 

Plaintiff-Appellee, 

Cross-Appellant, 

v. 

PEPSI-COLA METROPOLITAN BOTTLING CO., I!'C., d/b/a Pepsi-Cola 

Bottling Group, Defendant-Appellant, 

Cross-Appellee. 

No. 87-1717. 

United States Court of Appeals, 

Fifth Circuit. 

Feb. 21, 1989. 

Former employee brought action 

against former employer alleging violation 

of Age Discrimination in Employment Act 

when employer discharged and refused to 

rehire employee. The United States District Court for the Northern District of 

Texas, Eldon B. Mahon, J., entered judgment in favor of employee. Employer appealed and employee cross-appealed. The 

Court of Appeals, Sneed, Circuit Judge, 

sitting by designation, held that: (1) evi6. The Supreme Court's remand of the state law 

issue in Catawba was based upon the traditional 

deference accorded the Courts of Appeals and 

the district courts to resolve state law issues 

arising within their jurisdictions. E.g. Propper 

v. Clark, 337 U.S. 472, 69 S.Ct. 1333, 93 LEd. 

1480 (1949). That deference, however, is rooted 

in the assumption that at least some of the 

district and appellate judges involved are usually from the state where the legal question has 

arisen and, thus, are trained in that state's law. 

865 F.2d-34 

Affirmed in part, reversed in part, and 

remanded. 

Jerre S. Williams, Circuit Judge, concurred in part, dissented in part, and filed 

opinion. 

I. Civil Rights <:;>44(6) 

Sufficient evidence existed in age discrimination action arising out of employee's 

termination for finding that employee was 

discharged by employer and did not quit his 

employment; employee testified that he did 

not refuse any jobs that were offered to 

him by employer, employer failed to contest payment of unemployment benefits, 

and there was ambiguity in employer's own 

records as to reason for employee's absence. 

2. Civil Rights <:;>9.15 

Under Age Discrimination in Employment Act, plaintiff must prove that age 

was determinative factor in his discharge. 

Age Discrimination in Employment Act of 

1967, § 2 et seq., 29 U.S.C.A. § 621 et seq. 

3. Ch·il Rights <:;>43 

Employer's indirect references to employee's age and timing of termination of 

employee can support inference of age discrimination. 

4. Civil Rights <:;>44(6) 

Evidence was sufficient in age discrimination case to support jury's verdict that 

former employee was discriminated against 

because of his age when he was disThat situation is not present here where neither 

the district judge who originally heard this case 

nor any member of this appellate court is a 

South Carolina jurist. By bringing this case in 

federal court and proceeding against a broad 

range of commercial defendants thereby compelling the recusal of many members of this 

Court, the Catawbas ha\e managed to have their 

state Jaw case decided by a court with substantially reduced familiarity with South Carolina 

law. 
570 

1334 978 FEDERAL REPORTER, 2d SERIES 

Juan RODRIGUEZ; Maria A. Rodriguez, 

Plaintiffs-Appellants, 

V. 

~lEBA PE:'\SION TRVST; Lucille Hart, 

Administrator, DefendantsAppellees. 

!"o. 91-2336 (L). 

( CA-Si -3430-R ). 

United States Court of Appeals, 

Fourth Circuit. 

July 20, 1992. 

ORDER 

This case was initially decided by this 

Court on February 10, 1992 by published 

opinion found at 956 F.2d 468. On March 

18, 1992 this Court granted appellees' petition for rehearing and suggestion for rehearing in bane. The granting of rehearing in bane \·acated the previous panel 

judgment and opinion pursuant to this 

Court's Local Rule 35(c). On June 1, 1992 

this Court granted the parties' stipulation 

of dismissal pursuant to Rule 42(b) of the 

Federal Rules of Appellate Procedu re. As 

a result of settlement pending the outcome 

on appeal, we hereby vacate as moot the 

judgment of the district court. See United 

States v. Munsingu·ear, 340 U.S. 36, 71 

S.Ct. 104, 95 L.Ed. 36 (1950); Kennedy v. 

Block, 784 F.2d 1220 (4th Cir.1 986). 

Entered at the direction of Chief Judge 

ERVIN with the concurrence of Circuit 

Judge PHILLIPS and Circuit Judge \VILKINSON. 

2 

CATAWBA !!\'DIAN TRIBE OF SOUTH 

CAROLINA. also known as the Catawba Nation of South America, PlaintiffAppellant, 

V . 

STATE OF SOL'TH CAROLINA, Richard 

Riley, as Governor of the State of 

South Carolina: County of Lancaster, 

and its county council consisting of 

Francis L. Bell, as Chairman, Fred E. 

Plyler, Eldridge Emory, Robert L. Mobley, Barry L. Mobley, L. Eugene Hudson, Lindsay Pettus, City of Rock Hill, 

J. Emmett Jerome, as Mayor, and its 

City Council consisting of Melford A. 

Wilson , Elizabeth D. Rhea, :\taxine Gill, 

Winston Searles, A. Douglas Echols, 

Frank W. Berry, Sr., Bowater North 

American Corporation of America, Catawba Timber Co., Celanese Corporation of America, Citizens and Southern 

National Bank of Sout h Carolina, (resent Land & Timber Corp., Duke Power 

Company, Flint Realty and Construction Company, Herald Publishing Company, Home Federal Savings and Loan 

Association, Rock Hill Printing & Finishing Company, Roddey Estates, Inc. , 

Southern Railway Company, Sprin gs 

Mills, Inc., J.P. Stevens & Company, 

Tega Cay Associ ates, Wachovia Bank 

and Trust Company, Ashe Brick Company, Church Heritage Village & 'llis· 

sionary Fellowship, ~i bet Farms, Inc .. 

C.H. Albright, .1\' ed Albright, J.W. 

Anderson, Jr., John 'IIarshall Wilkins. 

II, Jesse G. Anderson , John Wesley 

Anderson, David Goode Anderson, W.B. 

Ardrey, Jr., Elizabeth Ardrey Grimball, 

John W. Ardrey, Ardrey Farms, F.S. 

Barnes. Jr., W. Watson Barron, Wilson 

Barron, Archie B. Carroll, Jr., Hugh 

William Close, James Bradley, Francis 

Lay Springs, Lillian Crandal Close, 

Francis Allison Close, Leroy Springs 

Close, Patricia Clo,e, William Elliot 

Close, Hugh William Close, Jr., Robert 

A. Fewell, W.J. Harris, Annie F. Harris. 

T.W. Hutchinson, Hiram Hutchinson, 

Jr., J.R. McAlhaney, F.'II. 'lfack, Jr., 

Arnold F. Marshall, J.E. Marshall, Jr., 

C.E. Reid, Jr., Will R. Simpson, JohnS. 
571 

CATAWBA 1]'-;DIAN TRIBE v. STATE OF S.C. 1335 Cite u 978 F.2d 1334 (4th Clr. 1992) 

Simpson, Robert F. Simpson, Thomas tacking, except by descent, has met his 

Brown Snodgrass, Jr., John M. Spratt, burden of establishing that there is no gen· 

Marshall E. Walker, Hugh M. White, uine issue of material fact on claim of 

Jr., John M. Belk, Jane Nisbet Goode, adverse possession under South Carolina 

R.N. Bencher, \\'.0. Nisbet, Ill, Pauline law. 

B. Gunter, J. Max Minson, W.A. McCorkle, Mary McCorkle, William 0. Nisbet, 

Eugenia Nisbet White, Mary Nisbet 

Purvis, E.N. :\Iartin, Robert M. Yoder, 

Defendants-Appellees. 

No. 90-2446. 

united States Court of Appeals, 

Fourth Circuit. 

Argued Feb. 4, 1992. 

Decided Sept. 22, 1992. 

Indian tribe brought action against 

landowners for claim and title. The Dis· 

trict Court dismissed. The Court of Appeals reversed, 718 F.2d 1291 and 740 F.2d 

305. The United States Supreme Court 

reversed, 476 U.S. 498, 106 S.Ct. 2039, 90 

L.Ed.2d 490. The Court of Appeals remand· 

ed, 865 F.2d 1444. The United States Dis· 

trict Court for the District of South Car· 

olina, Joseph P. Willson, Senior District 

Judge, entered summary judgment in favor 

of landowners, and tribe appealed. The 

Court of Appeals, Widener, Circuit Judge, 

held that: (1) tacking periods of adverse 

possession is permitted under South Car· 

olina law when the change of ownership 

occurs by operation of law; (2) doctrine of 

worthier title may apply to permit tacking 

of periods when there is a transfer by will; 

and (3) some affidavits of landowners did 

not establish that they were based on per· 

sonal knowledge. 

Affirmed in part, reversed in part, and 

vacated and remanded in part. 

I. Federal Civil Procedure e=o2481 

Claimant who produces affidavits or 

other sufficient documents establishing 

without contradiction in fact that he or a 

predecessor held record title to property, 

possessed, occupied, or held the property, 

paid taxes on the property, and took steps 

to protect the property from trespassers 

for the requisite ten·year period without 

2. Federal Civil Procedure e=o2544 

Averment of possession in affidavit is 

sufficient to establish possession for purposes of motion for summary judgment on 

claim of adverse possession and, once 

claimant states in affidavit sufficient facts 

to sustain motion for summary judgment 

or burden shifts to the opposing claimant 

to establish material issue of fact. 

3. Federal Civil Procedure e=o2546 

Claimants who identified the nature 

and use of property which they claimed by 

adverse possession as timber farming, tim· 

ber growing, timberlands, or tree farm adequately established the nature of their pos· 

session for summary judgment purposes. 

4. AdHrse Possession e=oll0(2) 

Under South Carolina law, aYerments 

that property is used for recreational or 

farming purposes are sufficient to establish possession for adverse possession pur· 

poses. 

5. Federal Civil Procedure e=o2543 

In ordinary circumstances, with nothing else appearing, individual can be presumed to have personal knowledge, as required for summary judgment, of the possession of land by a family member. Fed. 

Rules Civ.Proc.Rule 56(e), 28 U.S.C.A. 

6. Federal Civil Procedure e=o2539 

Ordinarily, corporate officers would 

have personal knowledge of acts of their 

corporations and affidavit setting forth 

those facts can be sufficient for summary 

judgment purposes. Fed.Rules Civ.Proc. 

Rule 56(e), 28 U.S.C.A. 

i. Federal Civil Procedure «>2539 

Affidavit setting forth certain facts 

which did not allege that statements were 

based on personal knowledge of the affiant, combined with supplemental affidavit 

in which claimant stated that he was familiar with use and possession of property 

referred to his prior affidavit, was suffi-
572 

1336 9i8 FEDERAL REPORTER, 2d SERIES 

cient to support summary judgment on 

claim of adverse possession. Fed.Rules 

Civ.Proc.Rule 56(e), 28 U.S.C.A. 

8. Adverse Possession ~43(4, 6) 

Under South Carolina law, tacking of 

possession to establish adverse possession 

is allowed in a case of intestate succession, 

but not when the disseisor conveys by 

deed. 

9. Adverse Possession ~43(2) 

South Carolina law would allow tacking of periods of adverse possession when 

a change in possession occurs by operation 

of law but not when it occurs other than by 

operation of law. 

10. Adverse Possession ~43(8) 

Tacking of periods of adverse possession is permitted under South Carolina law 

·when land is transferred from predecessor 

to successor by virtue of corporate merger. 

11. Corporations ~1.4 1, 2) 

Under South Carolina law, corporate 

veil may be pierced in appropriate case and 

in furtherance of ends of justice. 

12. Corporations e=>J.4(1 ) 

Sole shareholder may not choose to 

ignore corporate entity when it is com·enient. 

13. Adverse Possession ~43(8) 

If transfer of land from parent to sub· 

sidiary was intended to allow parent to 

avoid legal obligation, that would be e\'idence tending to show that the parent 

treated the subsidiary as a separate corporation and not as its alter ego, so that 

periods of adverse possession could not be 

tacked under South Carolina law. 

14 .. Adverse Possession ~43 (8) 

· · If transfer of land between subsidiaries of the same parent is found as a matter 

of fact and law to be to an alter ego, 

periods· of adverse possession may be 

tacked. · · ·.t .: ~ · .. 

15. Wills ~713 

Under the doctrine of "worthier title, " 

devise to heirs of testator was nullity if 

interest limited in their favor was identical 

to that which heirs would have taken by 

descent if there had been no devise to 

them. 

See publication Words and Phrases for other judicial constructions and 

definitions. 

16. Wills e=>i13 

Rule of worthier title originated because feudal incidents of relief, wardship, 

and marriage were preserved only if new 

tenant of land acquired an interest by descent from the former tenant. 

17. Adverse Possession <l=>43(6) 

Under South Carolina law, which permits tacking of periods by adverse possession only in the case of intestate succession, tacking is permitted under the doc· 

trine of worthier title when there is a conveyance by will. 

18. Courts ~90(1) 

Overruling by implication is not fa· 

vored. 

19. Adverse Possession ~46 

Appointment of successor trustee upon 

death of former trustee does not interrupt 

running of statute of limitations for adve rse possession purposes. 

20. Trusts <l=>160(2) 

Trust will not fail for want of a trust· 

ee. 

21. Adverse Possession ~46 

Transfer of beneficial interest in trust 

does not interrupt limitations period for 

adverse possession under South Carolina 

law. 

22. Adverse Possession 60(2 ) 

Claimant's possession of land was exclusive and continuous for adverse possession purposes even though members of In· 

dian tribe which aiso claimed the property 

entered onto it for the purpose of collecting 

clay , where he allowed the members of the 

tribe onto the property for that purpose. 

23. Adverse Possession e=>43(8) 

Operation of rule that possession of 

one cotenant is possession of all ceases 

only if that possession becomes adverse to 

co-owners of the possessor. 
573 

CATAWBA I~DIAN TRIBE v. STATE OF S.C. 1337 Clio u 978 F.ld !3~ (4th Clr. 1992) 

24. Adverse Possession ¢=>43(8) WIDENER, Circuit Judge: 

Cotenant who satisfies adverse posses· 

sion requirement does so for all cotenants 

so long as he does not claim to be holding 

adversely to his cotenants. 

25. Ad•·erse Possession <!?56 

South Carolina statute providing that 

statute of limitations is tolled if a defendant is out of the state for more than one 

year when or after cause of action arises 

does not apply to adverse possession 

claims. S.C.Code 1976, § 15-3-340. 

Jay Bender, Baker, Barwick, Ravenel & 

Bender. Columbia, S.C., argued (Don B. 

Miller, .!\ative American Rights Fund, Boulder, Colo., Robert Jones, Rock Hill, S.C., 

Richard Steele, Union, S.C., for plaintiff. 

appellant. 

James Linwood Quarles, III, Hale & 

Dorr, Boston, Mass., Michael John Giese, 

Leatherwood, Walker, Todd & Mann, P.C., 

Green,·ille. S.C., argued. James D. St. 

Clair, William F. Lee, Hale & Dorr, Boston, 

Mass. , J.D. Todd, Jr., Leatherwood, Walker, Todd & .\fann, P.C., Greenville, S.C., 

John C. Christie, Jr., J. William Hayton, 

Da\'id :\f. .!\ovak, Bell, Boyd & Lloyd, 

Washington, D.C., Dan M. Byrd, Jr., Mitchell K. Byrd, Byrd & Byrd, David A. White, 

Carolyn W. Rogers, Roddey, Carpenter & 

White, P.A., Rock Hill, S.C., T. Tra,·is Medlock, Atty. Gen., Kenneth P. Woodington, 

Asst. Atty. Gen., State of S.C., Columbia, 

S.C., Joseph W. Grier, Jr., J. Cameron Furr, 

Jr., Grier & Grier, P.A., Charlotte, N.C., 

W.C. Spencer, Emil W. Wald, Spencer & 

Spencer, P.A., Rock Hill, S.C., for defendants-appellees. 

Before WIDENER, HALL, 

MURNAGHAN, SPROUSE, NIEMEYER, 

and LUTIIG, Circuit Judges, sitting in 

bane. 

I. The historical facts surrounding tho Catawbas' 

claim 10 1he property in question are set forth at 

length in this court's first opinion and the Supreme Court's opinion on lhe matter. See 

South Carolina v. Catawba Indian Tn'be, Inc., 

The Catawba Indian Tribe appeals from 

an order of the district court granting summary judgment in favor of certain defendants as to a number of parcels of real 

estate on the ground that those defendants 

had established the adverse possession requirements of South Carolina. We affirm 

in part, reverse in part, and vacate and 

remand in part. 

This litigation began when the Tribe filed 

a complaint and motion to certify a defendant class on October 28, 1980.

1 In the 

complaint, the Tribe seeks to be declared 

the owner of approximately 144,000 acres 

of land that was set aside for the Tribe's 

benefit in the 1760 Treaty of Pine Tree Hill 

and the 1763 Treaty of Augusta and to 

recover trespass damages for the period of 

its dispossession. The complaint names 

seventy-six individuals, companies and public entities as defendants and as representatives of a putati,·e defendant class of more 

than 27,000 persons with an interest in any 

portion of the lands in question. 

In 1981, the defendants filed a Rule 

12(b)(6) motion to dismiss the complaint for 

failure to state a claim upon which relief 

can be granted. The motion was based on 

the effect of the 1959 Catawba Division of 

Assets Act (Catawba Act), 25 U.S.C. 

§§ 931-938. The district court treated the 

motion to dismiss as a Rule 56 motion for 

summary judgment, granted the defendants' motion and dismissed the case. The 

court held that the Catawba Act terminated 

the special relationship that the Tribe had 

had with the federal government and that 

the termination of the special federal status of the Tribe made state law apply to it 

and any claim it might have. Therefore, 

South Carolina's adverse possession statute 

began to run against the Tribe's claim on 

July l, 1962, the date the Tribe's constitution was revoked pursuant to the Catawba 

Act. Because South Carolina Code § 15-3-

340, the applicable South Carolina statute 

of limitations, requires actions to recover 

476 U.S. 498, 106 S.Ct. 2039, 90 L.Ed.2d 490 

( 1986): Catawba Indian Tribe v. South Carolina, 

718 F.2d 1291 (4th Cir.l983), adopted en bane, 

740 F.2d 305 (4th Cir.l984), rev'd, 476 U.S. 498, 

l 06 S.Ct. 2039, 90 L.Ed.2d 490 (1986). 
574 

1338 978 FEDERAL REPORTER, 2d SERIES 

title or possession to be brought within ten 

vears, the district court held that the 

Tribe's claims were filed eighteen years 

after the statute began to run and the 

claims were barred. The court, while noting that South Carolina does not allow a 

party to obtain title by adverse possession 

by "tacking" his period of possession to a 

predecessor's period of possession (unless 

the land passes by inheritance), held that 

South Carolina's non-tacking rule "is not 

relevant to the defendants' assertion that 

the plaintiff's claims are barred by the 

statute of limitations." 

First a panel of this court and then the 

court sitting en bane reversed the district 

court and held that the state statute of 

limitations does not apply to the Tribe's 

claim. Catawba Indian Tr1be v. South 

Carolina, 718 F.2d 1291, 1300 (4th Cir. 

1983), adopted en bane, Catawba Indian 

Tribe v. South Carolina, 740 F.2d 305 (4th 

Cir.1984). Because this court held that the 

state statute of limitations does not apply, 

we did not reach the question of whether 

the district court had correctly applied the 

statute of limitations. The Supreme Court 

then reversed this court and held that the 

South Carolina statute of limitations does 

apply to the Tribe's claim. South Carolina t•. Catawba Indian Tribe, Inc., 476 

U.S. 498, 5HH1, 106 S.Ct. 2039, 2046-47, 

90 L.Ed.2d 490 (1986). The Court then 

remanded the case to this court for consideration of the district court's application of 

the South Carolina statute of limitations to 

the Tribe's claim. On remand from the 

Supreme Court, this court held that the 

Tribe is entitled to invoke the presumption 

l. Section 15-3-340, at the time this action was 

brought, provided as follows: 

No action for the recovery of real property 

or for the recovery of the possession thereof 

shall be maintained unless it appear that the 

plaintiff, his ancestor, predecessor or grantor, 

was seized or possessed of the premises in 

question within ten years before the commencement of such action. 

A · second action for the recovery of real 

property shall be brought within two years 

from the rendition of the verdict or judgment 

in the first action or from the granting of a 

nonsuit or discontinuance therein. 

3. Section l~i-210 provides as follows: 

of possession set forth in S.C.Code § 15--

67-220; that the Tribe's acknowledgement 

that it did not actually possess the land 

within the ten year period specified in 

S.C.Code § 15--3-340 is not a bar to its 

claim; and that South Carolina's disallowance of tacking means that the Tribe's 

claim is only barred as to those persons 

who held or whose predecessors held the 

property for ten years without tacking except by inheritance. We summarized our 

portion of the holding pertinent to the present matter as follows: 

[S]ections 15--3-340: and 15--67-210 3 [of 

the South Carolina Code] bar the tribe's 

claim against each person who holds and 

possesses property that has been held 

and possessed adversely for 10 years after July 1, 1962, and before October 20, 

1980,[41 without tacking except by inheritance, in accordance with South Carolina's tacking doctrine. The statutes of 

limitations do not bar the tribe's claim 

against other persons. "Persons" in· 

eludes joint tenants, tenants in common, 

partnerships, associations, and corpora· 

tions. 

Catau·ba Indian Tribe v. South Carolina, 

865 F.2d 1444, 1456 (4th Cir.), cert. denied, 

491 U.S. 906, 109 S.Ct. 3190, 105 L.Ed.2d 

699 (1989). Therefore, on remand from 

this court, the district court was required 

to determine which claimants met the adverse possession requirements. 

Forty-six of the named defendants filed a 

supplemental brief and affidavits in support of their summary judgment motion. 

The district court entered summary judg· 

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 possessed thereof 

within the time required by law. The occupa· 

tion 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 ac· 

tion. 

4. The complaint actually was filed on October 

28, 1980. Therefore, the defendants had unnl 

October 28, rather than October 20, to fulfill the 

ten year requirement. 
575 

CATAWBA INDIAN TRIBE v. STATE OF S.C. 1339 Cll• as 978 F.2d 1334 (4lh Clr. 1992) 

ment in a series of orders with respect to by, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 

certain properties for which summary judg· 2512, 91 L.Ed.2d 202 (1986). See also Ross 

ment was sought. The court also dis· v. Communications Satellite Corp., 759 

missed twenty-nine defendants from the F.2d 355, 364 (4th Cir.l985) ("Genuineness 

case as it determined that summary judg· means that the evidence must create fair 

ment had been granted as to all property in doubt; wholly speculative assertions will 

which they had an interest. not suffice. A trial, after all, is not an 

Summary Judgment Standard 

Our review of summary judgments is de 

novo. Teamsters Joint Council No. 83 v. 

Centra, Inc., 947 F.2d 115, 118 (4th Cir. 

1991). Summary judgment is appropriate 

when there is no genuine issue of fact and 

the moving party is entitled to judgment as 

a matter of law. Fed.R.Civ.P. 56(c). In 

considering a summary judgment motion, 

the inferences to be drawn from the underlying facts must be viewed in the light 

most favorable to the non-moving party. 

Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 

S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). 

Howe\·er, when the record taken as a 

whole could not lead a rational trier of fact 

to find for the non-moving party, summary 

judgment is appropriate. Matsushita, 475 

U.S. at 587, 106 S.Ct. at 1356. 

The party moving for summary judgment has the burden of establishing that 

there is no genuine issue as to any material 

fact and that he is entitled to judgment as 

a matter of law. See lOA C. Wright, A. 

Miller, & M. Kane, Federal Practice and 

Procedure: Cit·il 2d § 2727 (1983). However, once the moving party has met its 

burden under Rule 56(c), the adverse party 

"may not rest upon the mere allegations or 

denials of the adverse party's pleading, but 

the adverse party's response, by affida\·its 

or as otherwise provided in this rule, must 

set forth specific facts showing that there 

is a genuine issue for trial." Fed.R.Civ.P. 

56(e). The non-moving party "must do 

more than simply show that there is some 

metaphysical doubt as to the material 

facts." Matsushita, 475 U.S. at 586, 106 

S.Ct. at 1356. "The mere existence of a 

scintilla of evidence in support of the [nonmoving party's] position will be insufficient; there must be evidence on which the 

jury could reasonably find for the [nonmoving party]." Anderson v. Liberty Lobentitlement. It exists to resolve what rea· 

sonable minds would recognize as real factual disputes"). "Where the record taken 

as a whole could not lead a rational trier of 

fact to find for the non-moving party, there 

is no 'genuine issue for trial'" and summary judgment is appropriate. Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. 

I. 

South Carolina Adverse Possession Law 

"[C]laim of title by adverse possession 

require[s] proof of actual, open, notorious, 

hostile, continuous and exclusive possession by [the claimant), or by one or more 

persons through whom [the claimant] 

claim[s], for the full statutory period of ten 

years, without tacking of possession except 

by descent cast." Crotwell v. Whitney, 

229 S.C. 213, 92 S.E.2d 473, 477 (1956); see 

S.C.Code § 15-3-340; S.C.Code § 15-67-

210. "(T]he burden of proof of adverse 

possession is on the party relying thereon." 

Mullis v. Winchester, 237 S.C. 487, 118 

S.E.2d 61, 63 (1961). In South Carolina, 

"( o ]rdinarily, adverse possession is a question of fact for the jury and it becomes a 

question of law only when the evidence is 

undisputed and susceptible of but one inference." Gardner v. Mozingo, 293 S.C. 

23, 358 S.E.2d 390, 392 (1987). 

II. 

Sufficiency of the Allegations 

in Claimants' Affidavits 

The district court made the following rulings with respect to the sufficiency of the 

affidavits submitted in support of the 

claimants' motions for summary judgment: 

A defendant whose uncontroverted affidavit states or shows that he (or his 

predecessor) has continuously occupied 

or possessed the property for ten years 
576 

1340 9i8 FEDERAL REPORTER, 2d SERIES 

(without tacking except by inheritance), 

has treated the property as his own, paid 

taxes thereon, maintained the property 

and taken steps to protect it against trespassers or others who might seek to use 

it or assert any claim to it, has demonstrated adverse possession of the property. 

A defendant whose uncontroverted affidavit states or shows that he (or his 

predecessor) continuously occupied or 

possessed property pursuant to color of 

title for ten years (without tacking except by inheritance) has demonstrated 

adverse possession of the property. 

Mortgage documents are writings sufficient to constitute color of title for purposes of establishing adverse possession. 

Timber growing or farming is sufficient occupation or possession of the 

property to establish adverse possession. 

A deed to a husband serves as color of 

title for his wife if their marriage took 

place while Dower rights still attached to 

all lands of which a husband was seized 

during coverture. 

The Tribe argues that the requirements set 

forth by the district court are insufficient 

because they do not require allegations of 

specific acts of possession. They argue 

that any affidavits which fail to set forth 

specific acts of possession are insufficient 

as a matter of law to meet the requirements of adverse possession. 

[1] We are of opinion that a claimant 

who produces affidavits or other sufficient 

documents establishing without contradiction in fact that he or a predecessor held 

the record title to the property, possessed, 

occupied, or held the property, paid taxes 

on the property, and took steps to protect 

the property from trespassers for the requisite ten-year period without tacking except by descent, has met his burden under 

Rule 56(c) of establishing that there is no 

genuine issue as to any material fact and 

that he is entitled to judgment as a matter 

5. The Tribe makes numerous attacks against the 

affidavits, but in nearly every instance it has not 

shown a need for a trial. We reject the Tribe's 

argument that certain affidavits were insuffi· 

cient because they did not attach certified 

of law. Therefore, in those cases where 

the claimant has so met his burden, to 

avoid summary judgment, the Tribe, by 

affidavit or as otherwise provided in Rule 

56, must set forth specific facts showing 

that there is a genuine issue for trial. 

"As a general rule, the law presumes 

that the exclusive possession of land by one 

who is a stranger to the holder of the legal 

title is adverse." Mullis, 118 S.E.2d at 66. 

In this court's earlier decision, we determined that if the Tribe held Indian title to 

the property in question in 1962, then it 

held the legal title at that time. 865 F.2d 

1444, 1451 (4th Cir.1989). Therefore, applying the rule stated in Mullis, any person 

other than the Tribe who exclusively possessed the property would be a stranger to 

the holder of the legal title and would be 

presumed to be holding it adversely. 

In addition, when "a person goes into 

possession of land under a deed from a 

third person which purports on its face to 

convey to him an absolute and exclusive 

title to the entire interest in the land, and 

such deed is spread upon the public records, this is notice to the world that he is 

claiming the entire and exclusive interest in 

the land, and his possession may be adverse to all the world from the time of its 

commencement." Sudduth v. Sumeral, 61 

S.C. 276, 39 S.E. 534, 539 (1901). "The 

claimant's possession and its continuity will 

be sufficient if by his acts and conduct it is 

apparent to men of ordinary prudence that 

he is asserting and exercising ownership 

over the property; and for this purpose it 

is necessary to take in to consideration the 

nature, character, and location of the property and the uses for which it is fitted or to 

which it has been put." Smith v. Southern Railway, 237 S.C. 597, 118 S.E.2d 440, 

443 (1961) (quoting 1 Am.Jur. Adverse Possession § 149). 

The Tribe has not met its burden in establishing that there is a genuine issue for 

trial as to many of the claimants.5 To 

copies of all the documents referred to in the 

affidavits. The documents referred to are. in· 

most, if not all, cases. available as public rec· 

ords concerning property. The Tribe has not 

disputed the veracity of the statements concern· 
577 

CATAWBA I~DIA!II TRIBE v. STATE OF S.C. 1341 Cite as 978 F.ld 1334 (4th Clr. 1992) 

survi,·e the claimants' motions for sum· 

mary judgment, the Tribe must establish 

that there is a genuine issue as to whether 

the claimants have satisfied South Car· 

olina's adverse possession requirements. 

Once a claimant met his burden under Rule 

56(c), the Tribe was required to come for· 

ward with "specific facts showing that 

there is a genuine issue for trial." Fed. 

R.Civ.P .. )6(e). 

[2) The Tribe argues that an averment 

of possession in an affidavit is insufficient 

to establish possession for summary judg· 

ment purposes. We disagree. Once a 

claimant stated in an affidavit sufficient 

facts to sustain a motion for summary 

judgment in his fa,·or, the burden shifted 

to the Tribe to establish that there is a 

"material issue of fact." Affidavits by a 

claimant that he possessed the property or 

held and occupied the property as his own, 

paid taxes on it, and took steps to protect it 

from trespassers is sufficient to sustain a 

motion for summary judgment so long as 

the ten-year requirement is met and the 

statements were made on personal know!· 

edge. Therefore, in order to avoid sum· 

mary judgment when faced with such an 

affidavit, the Tribe was required, by affida· 

vit or as otherwise provided for in Rule 56, 

to allege facts showing that there is a 

dispute as to whether a claimant did those 

things claimed in the affidavit. Absent 

such a showing, there is no "material issue 

of fact" and summary judgment was properly granted to the claimant. 

(3) Some of the claimants, by affidavit, 

identified the nature and use of the proper· 

ty they claimed as timber farming, timber 

growing, timberlands, or tree farm. The 

Tribe argues that these descriptions are 

insufficient to sustain a motion for sum· 

mary judgment. Again, the Tribe has mis· 

taken the summary judgment standard. 

ing the use of the property and thus have not 

shown the need for a trial. Also the Tribe does 

not contest the content of the documents referred to or e\·en state it does not know their 

content. Thus. it has shown no prejudice for 

any non-compliance with the rule. 

6. The Tribe claims that a number of the affidavits contain admissions that the property de· 

The statements by the claimants are sufficient to meet the requirements of adverse 

possession. See Mullis, 118 S.E.2d at 66 

(claimant who entered upon the land under 

color of title and occupied the land for his 

ordinary use in growing timber upon land 

and obtaining timber therefrom satisfied 

adverse possession requirements). There· 

fore, to avoid having summary judgment 

granted against them, the Tribe had the 

burden of disputing, by affidavit or other· 

wise, that the property was not used for 

timber farming and that any other acts 

alleged which would establish possession 

were not present. 

[4) Further, we are of opinion that 

averments that property was used for recreational or farming purposes are suffi· 

cient to establish possession for adverse 

possession purposes. See Mullis, 118 

S.E.2d at 65 (acts of adverse possession 

"are only required to be exercised in such 

way and in such manner as is consistent 

with the use to which the lands may be put 

and the situation of the property .... "). 

Again, to avoid summary judgment the 

Tribe was required to controvert facts alleged in the claimants' affidavits. 

In sum we find that those averments 

made in the affidavits are sufficient to 

satisfy the open, notorious, continuous, and 

hostile requirements.' The only questions 

remaining are whether the affidavits sufficiently established that they were based on 

personal knowledge and whether they es· 

tablished that the ten-year period was met. 

III. . 

No Personal Knowledge by Affiants 

The Tribe argues that some of the affidavits are not based on personal knowledge 

and, as a consequence~ are insufficient as a 

basis for summary judgment. Federal 

scribed was ··neither occupied, possessed nor 

used." We have inspected each of those affidavits and find the Tribe's argument to be without 

merit. When the pertinent section of each affidavit is read it is apparent that the affiant has 

alleged sufficient acts to establish entry upon 

and possession of the property. 
578 

1342 978 FEDERAL REPORTER, 2d SERIES 

Rule of Civil Procedure 56(e) provides as 

follows: 

Supporting and opposing affidavits shall 

be made on personal knowledge, shall set 

forth such facts as would be admissible 

in evidence, and shall show affirmatively 

that the affiant is competent to testify as 

to the matters therein. 

To comply with Rule 56(e), there must be a 

showing that the statements made in the 

affidavits were made on personal knowledge. "The absence of an affirmative 

showing of personal knowledge of specific 

facts vitiates the sufficiency of the affidavits and, accordingly, summary disposition 

based thereon [is] improper." Antonio v. 

BaT7Les, 464 F.2d 584, 585 (4th Cir.l972). 

[5] The Tribe asserts that some of the 

affidavits are insufficient because there 

has been no showing that the state!Tlents 

contained in them are based on personal 

knowledge. Some of these statements 

were made by indi\·iduals concerning use of 

the property by family members. We are 

of opinion that, in ordinary circumstances, 

and nothing else appearing, an individual 

can be presumed to have personal knowledge of the possession of land by a family 

member. Absent a specific showing by the 

Tribe that an indi\·idual did not have personal knowledge of the use of a tract of 

land by a family member, the statements 

concerning familial use of the property 

comply with Rule 56(e)'s personal knowledge requirement. 

Therefore, we reject the Tribe's argument that the affidavits were not based on 

personal knowledge as to those statements 

concerning use of property by family members of the affiant. 

[6] The Tribe also attacks certain affidavits made by corporate officers on behalf 

of the corporation. We are of opinion that, 

ordinarily, officers would have personal 

knowledge of the acts of their corporations. 

Therefore, since the Tribe did not set forth 

facts, by affidavit or otherwise, that would 

show that the officers did not have personal knowledge, the personal knowledge requirement is satisfied as to those affidavits. 

[7) Two of the affidavits attacked as 

insufficient for lack of personal knowledge 

were made by one Alton G. Brown. In his 

first affidavit, dated May 22, 1989, Brown 

does not allege that his statements were 

made based on personal knowledge. However, this is remedied in his supplemental 

affidavit wherein he states, "During the 

entire period from 1962 to 1979, I was 

familiar with use and possession of the 

Spencer property referred to in my affidavit of May 22, 1989." Therefore, the combined affidavits were sufficient. 

As to those affidavits set forth at Appendix C, we are of opinion that, while they do 

set forth sufficient facts to sustain a motion for summary judgment, on their face, 

they do not establish that the affiant's 

statements were based on personal knowledge. Therefore, we remand as to the 

claims based on those affidavits solely for 

the district court to determine whether the 

statements were made on the basis of personal knowledge. 

While certain affidavits did not establish 

that they were based on personal knowledge, summary judgment was properly 

gran ted as to the property described therein as supplemental affida\·its were filed 

that remedied the problem. 

IV. 

Tacking 

[8, 9) The general rule in South Carolina, contrary to the rule in most 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." D. Means, Survey 

of South Carolina Law: Property, 10 

S.C.L.Q. 90 (1957). Tacking has been allowed in South Carolina in cases of intestate succession, but not when the disseisor 

conveys by deed. See Epperson v. Stansill, 64 S.C. 485, 42 S.E. 426 (1902). In the 

following passage, the Supreme Court of 

South Carolina explained its reasoning: 

If possession of land is transmitted by 

the act of disseisor before the statutory 
579 

CATAWBA I~DIAS TRIBE v. STATE OF S.C. 1343 Clle u 978 F.2d 1334 (4th Ctr. t992) 

bar is complete, the grantee of the disseisor cannot unite his possession with that 

of the disseisor in order to show adverse 

possession for the requisite period. But 

when the heir is in of his ancestor's 

possession, and makes no new entry, the 

possession of ancestor and heir may be 

united in making out the statutory period; the distinction being that, when possession is cast by operation of law from 

ancestor to heir in possession, there is no 

break in the continuity of possession, 

whereas, in the case of disseisor and 

grantee, there is a new entry and a break 

in the continuity of possession. 

Epperson, 42 S.E. at 427 (citations omitted). Therefore, following that Court's 

reasoning, we are of opinion that South 

Carolina courts would allow tacking when a 

change in possession occurs by operation of 

law. It follows that when a transfer in 

possession occurs other than by operation 

of law, South Carolina courts would not 

allow tacking. 

The district court in granting summary 

judgment allowed tacking in a number of 

situations. The Tribe argues that the court 

erroneously created new exceptions to 

South Carolina's no-tacking rule and, in 

7. The district court erred in granting summary 

judgment as to two parcels claimed by a Close 

family trust. The chain of title of lhese tracts 

contained transfers of r<eord within the t<nyear statutory period. One of the parcels was 

transferred from Southern Appliances to the 

trustees on May 7, 1971 (nine years aher the 

statute began running against the tribe in 1962 

and nine years prior to the filing of the suit in 

1980) by deed dated May 7. 1971 and recorded 

\-lay 12. 1971 in deed book 418 at page 382. 

The other parcel was deeded to the trustees by 

deed dated March 18, 1974 and recorded March 

21, 1974 in deed book 481 at page 65. The 

grantor thereon had been conveyed the propeny 

by deed dated May 2, 1971 and recorded May 

12, 19il in deed book 418 at page 382. Again, 

the dates of these transfers make it impossible 

for one pany to have held the propeny for the 

requisite ten year period. Barring the applicability of an exception to the no-tacking rule (no 

exception is offered by the claimant). the tenyear requirement was not met. 

The Tribe claims that the record title of anoth· 

er parcel, deeded to the trustees by deed dated 

September 20, 1972 and recorded September 16, 

1972 in deed book 448 at pase 38, shows that no 

party held the propeny for the requisite ten-year 

other instances, erroneously applied the notacking rule.

7 We take each instance in 

turn. 

IV .A. 

Corporate Merger 

[10) . The district court allowed tacking 

in instances when a corporate merger occurred. There appears to be no South Carolina authority on this precise point. The 

Tribe relies on the following language from 

Epperson, 42 S.E. at 427, to support its 

argument that tacking should not be allowed in the merger context: "If possession of land is transmitted by the act of 

disseisor before the statutory bar is complete, the grantee of the disseisor cannot 

unite his possession with that of the disseisor in order to show adverse possession for 

the requisite period." The Tribe asserts 

that merger documents are similar to a 

deed and, therefore, break the period of 

possession, because they involve a voluntary act. 

We are of opinion, however, that the 

same rationale used by the courts in allowing tacking between an ancestor and heir, 

that "when possession is cast by operation 

period. The claimants allege that Ann S. Close, 

who is not a pany to the litigation, is the record 

owner of this parcel and, therefore, that parcel 

was not subject to the summary judgment motion. It appears, however, that summary judgment was granted as to that parcel. See Third 

Judgment Order. Exhibit Y (Parcel with Cun 

Seifan as grantor recorded in deed book 448 at 

page 38). Since summary judgment was not 

sought for that parcel. it could not have been 

appropriately granted. Therefore. the district 

coun erred in granting summary judgment as to 

that parcel. 

The Tribe also alleges that the district court 

granted summary judgment as to other parcels 

(Tax Map Numbers 710 0000 003, 732 0000 003, 

730 0000 009, 731 0000 002, 710 0000 004) for 

which summary judgment was not sought and 

as to which there was no evidence in the record. 

These parcels are listed in an appendix to a 

memorandum in suppon of summary judgment 

dated July II, 1990. Summary judgment was 

granted as to those parcels in the Third Judgment Order filed July I 8, 1990. It appears that 

the Tribe is correct that no affida\its were filed 

to suppon a motion for summary judgment as 

to those parcels. Therefore, with no evidence 

before it, the diSirict coun erred in lfllllting 

summary judgment as to those parcels. 
580 

1344 978 FEDERAL REPORTER, 2d SERIES 

of Jaw from anceswr w heir in possession, 

there is no break in the continuity of possession," Epperson, 42 S.E. at 427, would 

allow tacking in the context of a corporate 

merger. While it is true that merger is a 

voluntary act, the change in possession of 

the property occurs by operation of Jaw. 

See S.C.Code § 33-11-106 ("When a merger takes effect _ _ _ the title to all real 

estate and other property owned by each 

corporation party w the merger is vested in 

the surviving corporation without reversion 

or impairment. ___ "); S.C.1962 Code § 12-

20.6 (superseded) ("All property, real, personal and mixed . . _ and all and every 

other interest, of or belonging w or due to 

each of the corporations so merged or consolidated, shall be taken and deemed to be 

transferred to and vested in such single 

corporation without further act or deed."); 

Official Comment to S.C.Code § 33-11-106 

("A merger is not a conveyance or transfer, 

and does not give rise to claims of reverter 

or impairment of title based on a prohibited 

com·eyance or transfer."). Therefore, the 

district court did not err in allowing tacking in the context of a corporate merger. 

IV.B. 

Transfers from Parent to Subsidiary 

On May 1, 1969, Duke Power Company 

deeded the perimeter lands surrounding 

the Lake Wylie hydroelectric project to its 

wholly-owned subsidiary corporation, Crescent Land and Timber Company. The district court granted Duke Power and Crescent's motion for summary judgment based 

on a ten year period of possession between 

July 2, 1964 and July 2, 1974. The court 

stated that Crescent was "a mere alter ego 

or instrumentality of Duke" Power and the 

deed did not interrupt continuous possession by Duke Power for adverse possession 

purposes. We are of opinion that this holding must be reconsidered in light of this 

opinion.8 

The ten year period was met only if the 

deed from Duke Power to Crescent had no 

effect on the running of the statute. The 

8. · We are of opinion that Duke is not estopped 

from asserting that Crescent is its alter ego. The 

Tribe argues that the running of the statute was interrupted by the 1969 transfer. 

In South Carolina, "[t)he mere ownership 

of the capital stock of one corporation by 

another does not create an identity of corporate interest between the two companies, 

or render the holding company the owner 

of the property of the other, or create the 

relationship of principal and agent, or representative, or alter ego between the two. " 

Gordon v. Hollywood-Beaufort Package 

Corp., 213 S.C. 438, 49 S.E.2d 718, 720 

(1948) (emphasis added). 

[11-13] Also in South Carolina, however, in an appropriate case and in furtherance of the ends of justice the corporate 

veil may be pierced. DeWitt Truck Brokers v. W Ray Flemming Fruit Company, 540 F.2d 681 (4th Cir.1976). Dewitt, 

incidentally, is a recent comprehensive exposition of South Carolina law with respect 

w the facets of alter ego which it discusses; Add to that the principle relied upon 

by the Tribe, that a piercing of the corporate veil generally will not be permitted for 

the benefit of the parent corporation cr its 

stockholders, 18 AmJur 2d, Corporations, 

§ 46, which is in accord with 1 Fletcher 

Cyclopedia, Corporations (1990), p. 615, 

that a sole shareholder may not choose w 

ignore the corporate entity when it is convenient. With these principles in mind, it 

appears that Duke had acquired the perimeter property surrounding Lake Wylie 

some years prior to 1969 and prior to 1965. 

In 1965, the Federal Power Commission 

entered its Order 313 requiring power companies to provide recreational opportunities 

on properties surrounding their reservoirs. 

In 1969, Duke conveyed the perimeter 

lands surrounding Lake Wylie to its subsidiary, Crescent. Standing alone, this might 

seem to be a conveyance which would prevent tacking on the part of Duke. So far 

as its title to the perimeter land is concerned, an affidavit of an officer of Crescent, however, states facts which tend to 

show that Crescent may be the alter ego of 

Duke. On the other hand, the conveyance 

of the perimeter lands to Crescent may 

Tribe did not rely on any corporate separateness. 
581 

CATAWBA INDIAN TRIBE v. STATE OF S.C. 1345 Cit<,.. 978 F.2d t334 (4th Clr. t9'12) 

tend to s how that Duke treated Crescent as pany and Catawba Timber Company had 

a separa te corporate entity and not as its the effect of stopping the running of the 

alter ego, if, as the Tribe claims, the pur- statute prior to the running of the ten-year 

pose of the conveyance was to avoid set- period must be vacated and that transfer 

ting up recreational facilities as required re-examined under the principles stated 

by FPC Order 313. The district court above in this opinion. 

found that Duke had not violated Order 

31 3. It ga ve no reasons, but the affidavit IV.D. 

of Crescent's attorney may tend to support 

that conciusion. Whether or not FPC Or- Devise to Heirs 

der 313 was violated, however, is not the 

end of the question. If the conveyance 

from Duke to Crescent enabled Duke to 

avoid compliance with Order 313, even 

though such avoida nce may have been 

quite legitimate, that would be evidence 

which tends to show that Duke treated 

Crescent as a separate corporation and not 

as its alter ego. The district court also did 

not consider whether or not the rule we 

have cited from Fletcher, that a sole share· 

holder may not choose to ignore the corporate entity when it is convenient, has been 

violated. 

In view of t he facts we have stated and 

the authorities, we are of opinion tha t the 

district court erred in gra nting s ummary 

judgment to Duke and Crescent with respect to the perimeter property. Its judgment in that respect is vacated and the case 

remanded for such furth er fact finding as 

may be a ppropriate• 

IV. C. 

Transfer between Subsidiary 

Corporations of Same 

Parent Corporation 

[14) The same rules apply in this situation as apply to a transfer between a parent and subsidiary. If the transfer is 

found as a matter of fact and law to be to 

an alter ego, the tacking requirement will 

be complied with, otherwise it will not. 

The holding of the district court that the 

ten year period ran as to property claimed 

by Bowater, Inc., because the transfer between its subsidiaries East Highlands Com9. The Tribe asserts that the district court errone· 

ously held the six-year statute of limitations on 

acti ons fo r inverse condemnation applicable to 

Duke and Crescent's claim to the Lake Wylie 

Perimeter Property. We do not agree that the 

distri ct court so ruled. In its amendment to the 

The district court held that "[a) devise to 

an heir of a testator does not interrupt 

possession." This ruling may be valid in 

some instances. but invalid in others, as the 

doctrine of worthier title may apply. 

[15, 16) Under the doctrine of worthier 

title, a devise to the heirs of the testator 

was a nullity if the interest limited in their 

fa\'Or was identical to that which such heirs 

would have taken by descent if there had 

been no devise to them. The rule original· 

ed because the feudal incidents of relief, 

wardship, and marriage were preserved 

only if the new tenant of land acquired an 

interest by descent from the former tenant. 

See Restatement (Second) of Property 

§ 30.2, Comment on Subsection (2). Because the reason for the rule, the preservation of feudal incidents, no longer exists, 

t he doctrine as it applies to testamentary 

dispositions has been abolished by statute 

in se\'eral States, but not in South Carolina. 

See Restatement (Second) of Property 

§ 30.2, Statutory !\ote. 

South Carolina applied the doctrine of 

worthier title in the case of Sea brook v. 

Seabrook, 10 S.C.Eq. 495 (1859). The rule 

was there stated as follows, p. 503-504: 

"It is undoubted law, that where a testator gives by his will the same estate to 

the same persons who would be entitled 

to take that estate by operation of law in 

case of an intestacy, the devise or legacy 

will be void, and the right of the party or 

parties entitled will be referred to the 

law of distributions and descents. If 

second judgment order the district court plainly 

held that the six· year statute applied to the Lake 

Wylie Dam Property and the Lake Wylie Basin 

Property. The order made no mention that the 

statute would apply to the Lake Wylie Perimeter 

Property and we do not read it as so holding. 
582 

1346 978 FEDERAL REPORTER, 2d SERIES 

there be any variation between the disposition which the will, and which the law 

makes in such a case, either in regard to 

the persons who are to take, or to the 

quantity of the estate, the title will be 

referred to the will." 

The court held that the devise to the heirs 

was void and as to the heir in question the 

testator died intestate. 

Without attempting to go into all of the 

South Carolina cases touching the subject, 

we come to the case of Burnett v. Crawford, 50 S.C. 161, 27 S.E. 645 (1897) which 

is relied upon by the Tribe. That was a 

case in which an heir had sued the children 

of another heir for partition. The plaintiff 

heir had taken her estate by intestacy and 

the defendant children of the other heir had 

taken their interest by devise. The testa· 

tor had entered into a purported settlement 

of rights in the property with the plaintiff 

heir some 9 years prior to the testator's 

death. During that 9 year period, the 

court considered, at least for the purposes 

of its opinion, that the testator held adversely to the plaintiff heir. Although the 

plaintiff brought suit 11 years after the 

settlement, the court refused to permit 

tacking of the 9 year period and the two 

year period although the devise was to the 

defendants. The Court stated at 27 S.E. p. 

647: 

"A devisee under a will does not take 

possession of the devise as heir, but rather as the grantee or purchaser of the 

testator." 

It is that language the Tribe relies upon. 

But we note that almost immediately follo"';ng that language, and indeed in the 

same paragraph, the following statement 

at p. 647~48: 

"Under a properly framed request, appellant would have been entitled to have the 

· jury instructed as to the right of a devisee Claiming under a will to unite his 

possession with that of his testator so as 

· to make out the statutory period of adverse possession." 

While the first statement just quoted may 

seem to have abolished the doctrine of worthier title (as it applies to possession) by 

implication, the second statement just as 

surely provides the doctrine to have survived. We are of opinion that both statements may be reconciled by referring back 

to page 504 of Seabrook, which states that 

if there be any variation between the disposition made by the will and the Jaw, either 

in regard to the persons who are to take or 

the quantity of the estate, the title will be 

referred to the will. While it is true that 

the testator in Burnett did devise the land 

in question to his children, the defendants, 

the terms of the will are not stated and we 

must suppose, in order to justify the correctness of the opinion and make it consistent with the other South Carolina cases, 

that the will involved, while it may have 

devised the land to the same heirs, did not 

give to them the same quantity of estate 

they would have received by virtue of intestacy or that the record does not show the 

quantity of estate. We are reassured in 

our view of Burnett by the subsequent 

case of Kilgore v. Kirkland, 69 S.C. 78, 48 

S.E. 44 (1904). In Kilgore, the testator had 

received the property in question, apparently by deed, some 4 or 5 years before his 

death in 1850, at which time he devised the 

same to his children, share and share alike. 

The heirs continued in the testator's possession until the year 1858. On these 

facts, the South Carolina Court stated: 

" ... while it is also true to that possession of a devisee cannot be united with 

that of the testator, to make out adverse 

possession for the statutory period (Burnett v. Crawford, 50 S.C. 161, 27 S.E. 

645), nevertheless, when the heir is in of 

his ancestor's possession and makes no 

new entry, the possession of ancestor 

and heir may be united in making out the 

period necessary to quiet title." 

48 S.E. at 46. 

(17,18] Thus our construction of Burnett follows Kilgore 's construction of 

Burnett, and we think the doctrine of worthier title is extant in South Carolina. We 

note that Professor Means agrees with our 

conclusion that tacking should be permitted 

under the doctrine of worthier title in such 

cases; although he arrives at his construction of Burnett by his view that the problem was not properly presented to the 
583 

CATAWBA INDIA~ TRIBE .-. STATE OF S.C. 1347 Cite as 978 F.2d 1334 (4lh Clr. 19'12) 

South Carolina Court. Survey of South no effect on the running of the statute as 

Carolina Law, 10 S.C.L.Q. 90, n. 4 (1957). there is no new entry onto the property. 

We are further of opinion that Seabrook 

should not be held by us to have been 

overruled by implication. Overruling by 

implication is not favored. See Rodriquez 

de QuiJas v. Shearson/A merican Express, 

490 U.S. 477, 484, 109 S.Ct. 1917, 1921, 104 

L.Ed.2d 526 (1989); United States v. 

Bryan, 339 U.S. 323, 343 at 34&-346, 70 

S.Ct. 724, 736 at 737-738, 94 L.Ed. 884 

(1950) (Justice Jackson concurring). And in 

diversity cases also that is the rule in this 

circuit. See Walk v. Baltimore & Ohio 

Railroad, 847 F.2d 1100, 1108 (4th Cir. 

1988) 

Thus, this aspect of the case must be 

remanded with instructions to apply the 

doctrine of worthier title if the claimant 

heir took as de,·isee and with the same 

quantity of estate he would have taken if 

an heir. If all those requirements are met 

tacking should be permitted in such cases. 

IV.E. 

Change in the Identity of a Trustee 

[ 19. 20] The Tribe argues that the district court erred in holding that a change in 

the identity of a trustee does not interrupt 

the running of the ten-year statute. We 

are of opinion the district court correctly 

he ld that the appointment of a successor 

trustee upon the death of the former trust· 

ee does not interrupt the running of the 

statute of limitations. It is a fundamental 

rule of trust law that a trust will not fail 

for want of a trustee. Leaphart v. Harmon, 186 S.C. 362, 195 S.E. 628, 629 (1938). 

Therefore, we hold that, by operation of 

law, possession is cast from the former 

trustee to his successor. 

IV.F. 

Change in Beneficiary of Trust 

[21] The Tribe argues that the transfer 

of a beneficial interest in a trust interrupts 

the ten-year period. We find no merit to 

this contention. The property is held adversely by the trust through the trustee. 

A change in the beneficial ownership has 

v. 

William 0. Nisbet Property (602.5 

and 53 acre tracts) 

[22] The Tribe also asserts that a question of fact exists as to the exclusivity and 

continuity of the possession of William 0. 

Nisbet. Its claim is based on the fact that 

members of the Catawba Tribe have at 

times entered the 602.5 and 53 acre tracts 

owned by Nisbet for the purpose of collect· 

ing clay. Mesdames Wade and Campbell 

submitted affidavits stating that they were 

never denied access to the property to dig 

in the clay holes. Nisbet does not dispute 

that this activity has taken place. However, Nisbet's affidavit shows that he allowed 

members of the Tribe on to Nisbet's property for access to the clay. He claimed the 

property as his own and nothing done by 

the Tribe members amounted to an ouster 

of Nisbet's possession. Therefore, Nisbet's possession was exclusive and continu-

. ous. We agree with the district court's 

holding that "(a]dverse possession is not 

interrupted by entry of the owner unless 

there is also ouster of the claimant." "Actual possession, once taken, will continue, 

though the party taking such possession 

should not continue to rest with his foot 

upon the soil, until he be disseised, or until 

he do some act which amounts to a voluntary abandonment of the possession." 

Smith v. Southern Railway, 237 S.C. 597, 

118 S.E.2d 440, 442 (1961). 

It is true that the affidavits of Mesdames 

Wade and Campbell state that members of 

the Tribe had gone on the property for 

years, and the Wade affidavit states that 

such members of the Tribe did not ask 

permission or notify the Nisbets of their 

entry. We leave aside for the moment the 

fact that the Wade affidavit probably 

shows on its face it is not on personal 

knowledge as respects other members of 

the Tribe, but we do not leave aside the 

fact that it does not show that Nisbet had 

any knowledge of such entry. Even if the 

Wade affidavit is construed most favorably 

to the Tribe, it does not show any ouster of 
1348 9i8 FEDERAL REPORTER, 2d SERIES 

Nisbet under Smith. especially because it 

does not show that Nisbet knew of any 

unauthorized entry onto his property. 

The Tribe's point is without merit. 

VI. 

Adverse Possession & Co-Tenancies 

The Tribe takes issue with the district 

court's ruling that "(t]he adverse possession of one co-tenant establishes the adv~rse possession of his co-tenants." We 

find no error. 

[23, 24] In South Carolina, it is presumed that "the possession of one tenant 

in common is the possession of all." See 

Woods v. Bivens, 292 S.C. 76, 354 S.E.2d 

909, 911 (1987). The operation of the rule 

that the possession of one co-tenant is the 

possession of all only ceases if "such possession becomes adverse to the co-owners 

of the possessor." 354 S.E.2d at 911. 

Therefore, a co-tenant who satisfies the 

adverse possession requirements does so 

for all of the co-tenants so long as he does 

not claim to be holding adversely to his cotenants. In Teruil/iger l'. Marion, 222 

S.C. 185, 72 S.E.2d 165. 16i (1952), the 

Supreme Court of South Carolina recognized that a co-tenant can establish adverse 

possession for both herself and her cotenant. That being so, we are of opinion 

that a change in identity of co-tenants has 

no effect on establishing adverse possession so long as one co-tenant possesses the 

property for the requisite period. Therefore, we find no merit to the Tribe's contention that the transfer of title as to one cotenant interrupted the running of the adverse possession statute.l 0 

VII. 

Effect of Non-Residency of Claimants 

The district court ruled that "[t]he nonresidence of a defendant claiming adverse 

10. As an additional argument, the Tribe claims 

that a transfer by deed from a disseisor's executors to a devisee interrupts the running of the 

adverse possession statute and therefore certain 

percentage interests in property claimed by the 

Nisbet family were not held for the requisite 

period. Also the Tribe argues that the creation 

or tennination of a trust interrupts the 10 year 

period. We do not reach these issues as our 

possession does not toll the statutory period." The Tribe argues that the ten year 

adverse possession period was tolled 

against certain defendants because they 

may have been outside of South Carolina 

for more than one year. S.C.Code § 15--3-

30 provides that if a defendant is out of 

state for more than one year when or after 

a cause of action accrues, the statute of 

limitations is tolled until his return to the 

state. See Dandy v. American Laundry 

Machinery Inc., 301 S.C. 24, 389 S.E.2d 

866, 868 (1990). 

[25] We are of opinion that this tolling 

statute is not applicable to adverse possession claims. "(T]he purpose of the tolling 

statute is. to remedy the problem of locating a nonresident defendant before expiration of the statute of limitations." 389 

S.E.2d at 868. Recently, the Supreme 

Court of South Carolina has indicated that 

the tolling statute is inapplicable when the 

statute's purpose is not fulfilled. See Dandy, 389 S.E.2d at 868 (§ 15--3-30 does not 

apply to a foreign corporation with a registered agent in South Carolina because 

there is no problem in locating the nonresident defendant before expiration of the 

statute of limitations). In so doing, the 

court appears to have rejected the reasoning used in two prior cases that relied on 

the plain language of the statute. See 

Gulino v. Ramsey, 285 S.C. 74, 328 S.E.2d 

72 (1985) (tolling statute applies to an outof-state defendant even when service can 

be effected by substitute service on the 

Chief Highway Commissioner); Harris v. 

Dunlap, 285 S.C. 226, 328 S.E.2d 908 (1985) 

(amenability to personal service under the 

long-arm statute does not render the tolling 

statute inapplicable). The Dandy case 

makes clear that the current test in South 

Carolina for determining the applicability 

holding that one co-tenant can establish adverse 

possession for all co-tenants allows the Nisbets 

and other claimants to establish adverse possession as to their entire holding by establishing 

that one co-tenant held the property for the 

requisite period. For example, it appears that 

the Nisbet trust held an undivided interest for 

the entire requisite 10 year period. 
585 

CATAWBA INDIAN TRIBE v. STATE OF S.C. 1349 Clio u 978 F.2d 1334 (4th Ctr. t992) 

of the tolling statute is whether the problem of locating an out-of-state defendant 

prior to the running of the statute of limitations is present. In the instant case, 

South Carolina's separate comprehensive 

statutory scheme for the recovery of real 

property obviates the need for a tolling 

statute against out-of-state defendants in 

adverse possession cases. See S.C.Code, 

Title 15 Cit•il Remedies and Procedures, 

Chapter 61-Recovery of Real Property. 

Specifically, S.C.Code § 15-67-30 authorizes summons and service by publication 

on parties outside of the State in actions 

"to determine adverse claims." Therefore, 

the problem that the tolling statute addresses, the difficulty in locating an out-ofstate defendant before expiration of the 

statute of limitations, is not present as 

there is no need to locate the out-of-state 

defendant in an adverse possession case. 

In sum, we follow South Carolina's rule, as 

stated in Dandy, that the tolling statute is 

inapplicable in cases in which the problem 

that the statute was meant to address is 

not present and hold the tolling statute for 

out of state defendants to be inapplicable 

to adverse possession claims. 

VIII. 

Dismissal of Certain Claimants 

The Tribe alleges that the district court 

erroneously dismissed certain parties from 

the case. The district court dismissed 

twenty-nine claimants, holding that answers to interrogatories on file established 

that those claimants were entitled to have 

all parcels claimed by them dismissed from 

the action. The Tribe argues that, in fact, 

no answers to interrogatories were filed 

with the district court. The claimants argue that the information contained in the 

interrogatory answers was presented to 

the district court in summary form in 

briefs, memoranda, and appendices and the 

Tribe did not object to the use of this 

information in this form. We are of opin11. The Tribe argues that John S. Simpson 

moved for summary judgment as to certain parcels that were not released by the judgment 

orders. A review of the record indiC41tes that 

summary judgment was, in fact, granted as to 

978 F.2G-31 

ion the district court did not err in relying 

on these summaries in its dismissal orders 

as the Tribe did not dispute their accuracy. 

We are of opinion, however, that as to 

those parties that moved for summary 

judgment as to certain parcels that were 

not released by the summary judgment orders, the district court erred in dismissing 

them from the action. Those parties are 

listed in Appendix H. 11 

Based on the foregoing, the judgment of 

the district court is 

AFFIRMED IN PART, REVERSED IN 

PART, AND VACATED AND REMANDED IN PART. 

APPENDICES A THROUGH H 

Withoilt necessarily implying any criticism of the attorneys for the Tribe or for 

the defendants, a glance at the style of this 

case and a reference to our various opin· 

ions herein shows the more than complicated position in which the parties and the 

court find ourselves. Many of the defendants own multiple tracts of land and the 

decision of the district court appealed from 

is contained in large part in four judgment 

orders accompanied by multiple exhibits. 

Perhaps because the Tribe was confined, 

at least in part, by rules as to numbers of 

pages, the content of its brief on appeal 

generally stated its complaints in the most 

general terms as to parties and tracts affected, while the brief itself may have spe· 

cifically stated the nature of the legal error 

claimed. 

The reply brief of the defendants in 

many cases picked up and argued the specific legal issues presented leaving their 

general application as to parties and parcels of land to an interpretation of the 

district court's orders and the briefs. 

While we think with reasonable certainty 

that the attorneys quite understand the 

parties and the property affected by the 

briefs, only a causal inspection will reveal 

all parcels claimed by John S. Simpson. The 

Tribe's confusion stems from an apparent typographical error-Tax Map Number 600-1 J-02-

005 became Tax Map Number 600-JJ-02-035 in 

the judgment order. 
586 

1350 9i8 FEDERAL REPORTER, 2d SERIES 

that in most cases such is not shown by a 

reading of the briefs without minute references to the appendLx and in some cases to 

parts of the record not included in the 

appendix. 

For example, on page 41 of the Tribe's 

brief, in part B, 2, c. "Tree Farms" the 

objectio:1 is "A number of claims identified 

the nature and use of the property claimed 

by them as tree farm, timber farming, timher growing or timber lands." The brief 

then lists 18 appendix references without 

giving names of defendants or properties 

affected. To this, the defendants respond 

on page 21 of their brief by identifying the 

property of only two defendants with particularity. Much the same can be said of 

the Tribe's contentions on page 43, part d. 

with reference to "Farming or Recreational 

are enough to show why the mechanical 

construction of our opinion, for the most 

part, speaks in general terms, and shows 

its application in most cases by way of 

appendices. That was the only practical 

means we could devise within any kind of 

reasonable page limitation to show what 

we had decided and how our decision applied to a particular defendant or piece of 

property. We must all remember that this 

opinion concerns the title to real estate and 

well may end up being recorded in the real 

estate records of the State. 

We should say without rancor that the 

briefs we have had in this case do not 

commend themselves as models of form. 

We have, however, addressed each question of law raised by the Tribe. 

or Social Purpose." While the defendants For these reasons, we have included as a 

response on page 28 is in more detail than part of this opinion and the decision in this 

the response mentioned for tree farming, cast> appendices A through H, which will 

nevertheless, it does not identify all of the show the parties affected, precisely where 

property as to which the Tribe's claim is to find the properties affected, and the 

made. We could go on and on, some better parts of our decision affecting the same, 

and some worse, but thtse two examples including our disposition of the questions. 

APPENDIX A 

The defendants' unopposed motion for summary affirmance is hereby GRANTED, and 

the judgment of the district court is hereby AFFIRMED as to the following parcels of 

land. 

Defendant Portion of Judgment Order 

Describing Parcel' 

1. Hoechst Celanese One, A, (856); Deed dated 10/1/86; Deed Book 922, page 195, 

York County; except property described on page 2, paragraph 9 

of the deed: Deed from Celriver Recreation Assoc. to Celanese 

1. The volume and complexity of the records describing the parcels of land in this case has prompted 

us to develop a system of notation whereby the reader may discern what action we have taken with 

res~ to each individual parcel as to which summary judgment was granted. We have attempted to 

devise· a sysiem that strikes a useful balance between simplicity and precision. · 

The district coun's holdings in this case are collected in the form of five judgment orders. We refer 

to these judgment orders by the words "One," representing the first judgment order beginning at J.A. 

848: ''Two." representing the second judgment order beginning at J.A. 948; "Three," representing the 

third judgment order beginning at J.A. 960; "Amend.," representing the amended second judgment 

order beginning at J.A. 1012; and "Four," representing the founh judgment order beginning at J.A. 

1019. The first word in a reference under this column, then, refers the reader to the appropriate 

judgment order containing the parcel at issue. · · 

Each judgment order is accompanied by exhibits which describe with particularity each parcel at 

issue and naming the defendant who claims that parcel. We reference these exhibits by using the same 

capital letters: beginning with A and proceeding alphabetically, as does each judgment ordP.r. The 

•econd letter in a reference in this column is the capital letter designating the exhibit in which the 

reference occurs. 

The next number or entry in a r<ference represents the specific tract of land contained in a particular 

exhibit. Regrettably, the exhibits employed by the district coun do not use a uniform notation to. refer 
587 

CATAWBA INDIA!~/ TRIBE v. STATE OF S.C. 1351 

Defendant 

2. W achovia Bank 

and Trust Company 

3. Heritage Village 

4. T.W. Hutchison 

5. Francis M. Mack, 

Jr. 

6. John S. Simpson 

7. Thomas Brown 

Snodgrass, Jr. 

8. Citv of Rock Hill 

South Carolina 

Clle u 971 F.ld 1334 (41h Clr. 1992) 

APPENDIX A-Continued 

Portion of Judgment Order 

Describing Parce/ 1 

Corp. dated 6/2178 recorded in York County Clerk's Office, Deed 

Book 572, page 377, on 6/5178 and property described on page 2, 

paragraph 10 of the deed: Deed from David Int'l, Inc., to 

Celanese Corp. dated 6/11/85 recorded in York County Clerk's 

Office, Deed Book 825, page 160 on 6/26/85. 

One, B, U (i), (855i; Deed dated 10/30/50, Deed book 164, page 

320 York County, SC 

One, C, U 4, (857); Deed dated 8/1185, Deed Book F-6, page 2544 

One, C, U 10, (858-59); Deed dated 11/30/81; Deed Book 648, 

page 311 and Deed dated 1/27184; Deed Book 741, page 332; 

One, C, U 11, (859); Deed dated 9/30/82; Deed Book 678, page 

230; One, C, U 13, (859); Deed dated 5/2/85, Deed Book 816, 

page 105 · 

One, J, (866); T~S No. 664-00-00-020; Deed dated 6/20/63; 

Deed Book 313, page 383 

One, K, (867); Deed dated 11/23176, Deed Book 540, page 16; 

Deed dated 11/15/50, Deed Book 165, page 491; and Deed dated 

1/24/85, Deed Book 804, page 157 

One, L, (868); Deed dated 11/2/50; Deed Book 165, page 23 

One, M, (869); File No. 14644 Probate Court York County and 

File No. 15772; Probate Court York County 

One, 0, (871); Deed dated 9/5/86; Deed Book 906, page 293 

APPENDIX B 

The judgment of the district court is hereby AFFIRMED as to the following parcels of 

land. 

Defendant 

1. Wachovia Bank 

and Trust Company 

Portion of Judgment Order 

Describing Parcel 

One, B, U (ii), (855) 

Section of this 

Opinion Addressing 

Objections 2 

VI (All tracts •) 

10 a particular parcel of land. Accordingly, the last number or numbers in a reference represent our 

best judgment as to the most clear and concise way to identify a specific parcel. Where possible we 

have employed tax map numbers. Less often we have referred to numbered paragraphs in the exhibit. 

Only where necessary have we resorted to a more lengthy description of a parcel, such as by deed book 

and page number, dates and grantors, and the like. 

The final number in a reference, in parentheses, is the Joint Appendix number where that reference 

mav be found. 

As "an example, the reference 

One, C, (857) 

~I 

fl2 

f,3 

1!4 

refers to the parcels found in paragraphs one through four of exhibit C to· the first judgment order, 

appearing at J.A. p. 857. · · 

2. The references to the designated sections of I he fo;·egoing opinion are largely self-explanalory. As 

for the references 10 section II of our opinion, which deals wilh several issues relaling 10 1he 
1352 

Defendant 

588 

978 FEDERAL REPORTER, 2d SERIES 

APPENDIX B-Continued 

Portion of Judgment Order 

Describing Parcel 

Deed dated 10/30/1950 

Deed Book 164, page 320 Three, A, (968) 

n l.a.-Deed dated 6/20/57 Deed Book 

240, page 182 

U Lb.-Deed dated 6/21/57 Deed Book 

240, page 179 

U I.e.-Deed dated 12/12/63 Deed Book 

I, page 203 

U 2.a.-Deed dated 4/20/66 

U 3-275 acres, York County 

n 4-680 acres, York County 

Section of this 

Opinion Addressing 

Objections 

II (poss.) 

VII 

VII 

• An objection was raised as to all tracts in the judgment order and summary judgment is 

affirmed as to all tracts unless they are specifically mentioned in Appendices C-H. 

2. Heritage Village One, c. (857) 

Date of Conveyance Book Page 

? 250 522 VII 

12/1/83 733 95 n. 5 

(Glover) 812 356 n. 5 

7/ 5/84 772 356 III 

n. 5 

11/15178 585 18 III 

8/10/84 773 39 III 

6/ 15/84 771 188 n. 5 

9/ 16175 528 226 III 

4/ 29/81 631 555 n. 5 

1/15/85 803 202 III 

n. 5 · 

4/25178 569 939 III 

Three, B, (969) 

Date of Conveyance Book Page 

2/15/85 804 99 III 

n. 5 

12/12177 C-6 5365 II (poss.) 

2/84 756 83 III 

VII 

1/6178 562 914 II (dates) 

1178 C-6 5482 III 

1178 C-6 5483 VII 

8/31/83 718 318 II (cont.) 

III 

sufficiency of the allegations in the defendants' affidavits, we have devised a shorthand notation for 

purpo""s of identifying which specific aspect of section II addres""s the relevant objection of the Tribe. 

Notation 

II (concl.) 

II (sp. pc.) 

II (tree) 

II (farm) 

II (poss.) 

II (dates) 

II (cont.) 

Title of Corrt!Sponding 

Section of Tribe's Opening Brief 

"Conclusory Averments of Possession" 

"Possession of Specific Parcels Not Shown" 

"Tree Farms'' 

"Farming and Recreational or Social Purposes" 

"1\o Actual Possession or Entry" 

"Dates of u..,· 

"Continuity of Possession" 
589 

CATAWBA 1!'/DIAN TRIBE v_ STATE OF S.C_ CUe u 978 F.ld 1334 (4<h Clr. 19'12) 

APPENDIX B-Continued 

3. Herald Publishing Company 

4. C.H. Albright 

5. Ned M. Albright 

Date of Conveyance 

2113/56 

2/ 17178 

3/ 21 /80 

5/17/79 

One, D, (860) 

Tract C-Deed dated 5/12177; Deed 

Book 548, page 49 

Tracts A, B & F-Deed dated 6/26/86; 

Deed Book 896, page 286 

Tract E-Deed dated 5/ 20/81; Deed 

Book 631, page 957 

Tract D-Deed dated 6/26/86; Deed 

Book 896, page 286 

Three, C, (970) 

Tracts L & K-Deed dated 

10/31/ 85; Deed Book 849, page 500 

Three, D, (971-972) 

Tax Map Numbers 

600-02--{)3--{)61 

600-02--{)2--{)64 

598-19--{)3--{)16 

598-19--{)3--{)15 

627--{)7--{)4--{)25 

600-20-01--{)10 

600-21--{)3--{)36 

600-21--{)1--{)18 

600-21--{)2--{)11 

600-21--{)2--{)10 

627--{)2--{)2--{)06 

620-00-00-005 

620-00-00-007 

620-00-00--{)08 

627-22--{)2--{)21 

One, F, (862) 

Book 

221 

565 

611 

594 

Page 

447 

930 

528 

256 

II (pass.) 

III 

1353 

III, n. 5 (All tracts 

below) 

II (dates) 

II (cont.) 

II (dates) 

II (cont.) 

II (dates) 

II (cont.) 

II (cont.) 

II (dates) 

II (cont.) 

II (dates) 

II (cont.) 

II (dates) 

II (cont.) 

II (dates) 

II (cont.) 

II (dates) 

II (cont.) 

II (dates) 

II (cont.) 

II (dates) 

II (cont.) 

II (tree fm.) 

II (dates) 

II (tree fm.) 

II (dates) 

II (tree fm.) 

II (dates) 

II (poss.) 

VI 
1354 

6. David G. 

Anderson 

Date of Conveyance 

8/24/85 

7/8/85 

7. John Wesley 

Anderson, III 

Date of Conveyance 

7/8/85 

8/24/85 

8. F.S. Barnes, Jr. 

9. Marshall ~ 

Walker 

Date of Conveyance 

3/6/69 

10/.12/56 

9/26/69 

590 

978 FEDERAL REPORTER, 2d SERIES 

APPENDIX B-Continued 

Three, E, (973) 

Ta.:r; Map Numbers 

629-{)6-02-015 

627-22-02-021 

One, G, (863) 

Book Page 

838 208 

827 350 

One, H, (864) 

Book Page 

827 350 

838 208 

Three, I, (977) 

Tax Map 604-<l6-<Jl-<l28 

One, I, (865) 

Deed dated 1/28/57 

Deed Book 235, page 415 

Three, J, (978) 

536-00-00-038 

597-00-00-019 

639-00-00-022 

639-00-00-025 

639-00-00-030 

639-00-00-031 

639-00-00-032 

627-10-02-029 

627-12-01-001 

One, N, (870) 

Book Page 

387 393 

202 307 

383 307 

Ill, n. 5 (All tracts 

below) 

II (dates) 

II (cont.) 

IV-E 

VI 

VII 

IV-E 

VI 

n. 10 

III 

II (dates) 

III 

III (All tracts below) 

II (farm) 

II (dates) 

II (tree) 

II (dates) 

II (poss.) 

II (dates) 

II (farm) 

II (dates) 

II (fann) 

II (dates) 

II (farm) 

II (dates) 

II (farm) 

II (dates) 

II (dates) 

II (dates) 
10. Duke Power 

Company 

Date of Deed 

591 

CATAWBA INDIA~ TRIBE v. STATE OF S.C. Clio u 971 f.2d UM (4th Clr. 1992) 

APPENDIX 8-Continued 

Three, P, (98&-986) 

624-00-00--016 

624..00--00--011 

677-00-00--026 

624-00-00--012 

621..00--00--042 

622..00--00--014 

674-00-00--003 

67&-00--00--064 

. 67 &-00--00--065 

752-00-00--031 

67&-00--00--062 

624..00--00--014 

6i8..00-00-017 

678..00-00--011 

622-{)0--00--007 

622-{)0-00--013 

624..00--00--015 

692-00--00--046 

598-{)5--02-010 

677-00--00--019 

674-QG-00-006 

624-00-QO--OlO 

One, P, (872-900) 

Recordation Date Book/Page 

York County, South Carolina 

51111100 

09/01/25 

09/01/25 

12/19/27 

05/10/32 

06/27/36 

09/08/24 

06/05/24 

03119/26 

05/21/30 

05118/25 

09/03/24 

09/24/24 

09/08/24 

09/23/24 

6/13/00 

12/05/25 

12/05/25 

12/21/27 

06/01/32 

08/05/36 

09/17/24 

06/07/24 

04/09/26 

05/28/30 

12/24/25 

09/17/24 

10/01/24 

09/17/24 

10/01/24 

19/621-633 

65/48 

65/53 

65/303 

74/540 

87/138 

61/283 

61/68 

2-P/19 (Plat Book) 

74/231 

65/61 

54/623 

54/623 

54/617 

54/622 

1355 

III, n. 5 (All 

tracts") 

II (tree) 

II (dates) 

II (tree) 

II (dates) 

II (tree) 

II (dates) 

II (tree) 

II (dates) 

II (tree) 

II (dates) 

II (tree) 

II (dates) 

II (tree) 

II (dates) 

II (tree) 

II (dates) 

II (tree) 

II (dates) 

II (tree) 

II (dates) 

II (tree) 

II (dates) 

II (tree) 

II (dates) 

II (tree) 

II (dates) 

II (poss.) 

II (dates) 

II (dates) 

II (dates) 

II (dates) 

II (dates) 

II (dates) 

II (dates) . 

II, n. 5 (All 

tracts") 
1356 

09/01/25 

06/27/36 

12/24/03 

12/30/03 

12/23/03 

12/26/03 

01/02/04 

12/23/03 

01/26/04 

01 /28/04 

04/12/04 

01/16/04 

12/23/03 

12/21103 

12/21/03 

12/21/03 

03/11/04 

03/31/04 

01/27/04 

02/25/05 

04/01104 

07/27/05 

01/30/09 

04/11/14 

04/15/16 

03/16/16 

03/16/16 

03/17/16 

03/20/16 

03/17/16 

03/17/16 

03/17/16 

03/17/16 

03/17/16 

03/16/16 

03/16/16 

03/17/16 

03/28/16 

03/29/16 

03/29/16 

03/22/16 

03/29/16 

01/06/04 

01/14/04 

01/06/04 

01/19/04 

03/01/04 

01/19/04 

01/19/04 

01/11/04 

07/19/16 

08/08/16 

09/15/25 

09/03/30 

03/30/34 

09/20/38 

03/01/40 

09/26/50 

04/22/53 

03/08/04 

03/08/04 

592 

978 FEDERAL REPORTER, 2d SERIES 

APPENDIX B-Continued 

02/05/25 65/53 

08/05/36 87/138 

01/23/05 24/637-38 

01/23/05 24/636-37 

01/23/05 24/635-36 

01/23/05 24/634 

01/23/05 24/632-33 

01/23/05 24/631-32 

01/23/05 24-630-31 

01/23/05 24/628-29 

01/23/05 24/627-28 

01/23/05 24/621-22 

01/23/05 24/625-26 

01/23/05 24/622-23 

01/23/05 24/626-27 

01/23/05 24/620-21 

01/23/05 24/624-25 

01/23/05 24/623-24 

01/23/05 24/638-39 

05/16/05 25/56-57 

06/03/05 25/86 

07/31/05 25/142 

02/01/09 29/455-56 

06/06/14 39/614 

06/06/14 39/613 

03/28/16 44/137 

03/28/16 44/138 

03/28/16 44/138 

03/28/16 44/139 

03/28/16 44/139 

03/25/16 44/140 

03/28/16 44/140 

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03/25/16 44/141 

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03/28/16 44/143 

04/04/16 44/144 

04/04/16 44/144 

04/04/16 44/145 

04/12/16 44/152 

07/28/16 44/166 

01/23/05 24/641-42 

01/23/05 24/642-43 

01/23/05 24/646-47 

01/23/05 24/645-46 

01/23/05 24/643-44 

01/23/05 24/644-45 

01/23/05 24/647-48 

01/23/05 24/649 

07/22/26 44/165 

08/14/16 44/172 

01/01/25 65/14 

10/18/30 74/277 - 04/03/34 79/184 - 09/21/38 92/599 -- 03/12/40 98/252 

10/12/50 163/384 

04/30/53 193/75 

01/23/05 24/664 

01/23/05 24/665-66 
03/07/04 

03/25/04 

03/08/04 

03/08/04 

07/19/04 

03/10/04 

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03/11/04 

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09/01/05 

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05/24/17 

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06114/17 

05/ 26/17 

06/ 15/17 

06/15117 

06/25/17 

01/04/05 

01/05/05 

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03/15/06 

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03115/06 

06/13/05 

09119/05 

09/ 24/05 

02/13/06 

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06/ 05/05 

09/01105 

06/ 13/07 

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06114/05 

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09/01/ 05 

08/02/05 

09/ 08/05 

08/21105 

03/29/06 

07/30/06 

07/05/06 

03/31/06 

06/19/06 

593 

CATAWBA INDIA:-J TRIBE v. STATE OF S.C. Clle u 971 F.2d 1334 (4th Clr. 1991) 

APPENDIX B-Continued 

01123/05 

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08/02/06 

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24/659~0 

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24/639-40 

24/650-51 

24/650-51 

24/658-59 

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24/652-53 

24/656-57 

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26/370 

27/577 

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44/315 

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44/318 

44/318 

44/320-21 

44/315 

44/318-19 

44/319 

44/324-25 

24/640-41 

25/58 

25/59 

25/767 

251771-772 

261768-769 

251779-780 

25/770-771 

251772-773 

251769-770 

251768 

251773-774 

26/186 

26/370 

27/546-547 

271710-711 

25/776-77 

25/774-75 

25/775-76 

26/359 

26/369 

36/372 

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26/251 

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26/256 

1357 
1358 

04/06/06 

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03/29/06 

07/05/06 

04/04/06 

03/28/06 

03/28/06 

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07/05/06 

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03/29/06 

05/08/06 

07/05/06 

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01125/07 

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01/05/17 

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01/03/17 

01/04/17 

01/01117 

01/02117 

01/08/17 

01/03/17 

01/04/17 

01/09117 

594 

978 FEDERAL REPORTER, 2d SERIES 

APPENDIX B-Continued 

08/02/06 26/257 

08/02/06 26/259 

08/02/06 26/260 

08/02/06 26/258 

08/02/06 26/262 

08/02/06 26/261 

28/02/26 36/263 

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08/02/06 26/280 

01/28/07 27/135-36 

01/28/07 27/133/35 

01/28/07 27/148-149 

01/28/07 27/149-50 

01/28/07 27/141-42 

01/28/07 27/131-32 

01/28/07 27/127-128 

01/28/07 27/132 

01/28/07 27/153 

06/17/07 27/545-46 

06/17/07 27/555-556 

06/19/07 27/562 

08/28/07 27/636 

11/15/07 27/771-72 

01/26/09 29/446 

02/01/09 29/456-459 

02/22/09 29/484 

04/29/09 29/530 

05/05/09 29/535-56 

06/16/09 29/594 

01/18/10 29/791-793 

01/09/17 44/249 

01/09/17 44/250 

01/09/17 44/250 

01/09/17 44/250-51 

01/09/17 44/251 

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01/17/17 44/257 
01

/ 10/17 

01/ 11/ 17 

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01/ 19/17 

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01/23/17 

01/ 23/ 17 

01/ 23/ 17 

01/29/17 

01129/17 

02/09/17 

02/ 09/17 

02/10/17 03/ 14 / 17 

03/ 16/ 17 

03/19/17 

03/20/17 

03/ 16/ 17 

03/13/ 17 

02/09/17 

03/29/17 

03/ 29/17 

05/ 22/ 17 

05/22/17 

05/ 23/17 

05/24/ 17 

05/ 13/ 17 

06/19/17 

06/ 28/ 17 

09/19/ 17 

09/11/17 

10/10/17 

02/27/07 

09/04/ 06 

05/03/07 

02/27/07 

10/20/06 

02/25/ 07 

02/25/07 

05/18/07 

01/18/07 

01/12/17 

07/20/17 

04/21/17 

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04/04/17 

03/30/23 

03/28/23 

04/05/23 

04/04/23 

04/04/23 

03/07/23 

04/07/23 

04/05/23 

04/12/23 

04/05/23 

04/19/23 

04/20/23 

04/21/23 

595 

CATAWBA INDIAN TRIBE v. STATE OF S.C. Cllc u 978 F.ld 1334 (4th Clr. 1992) 

APPENDIX B-Continued 

01/ 17/17 44 /258 

01/17/17 44/258 

01/17/17 44/ 258 

01/ 17/17 44/257 

01/ 23/ 17 44 /261 

01/ 23/17 44/ 261 

01/ 23/17 44/ 261 

01/30/17 44/ 264 

01/ 30/ 17 44/264 

01/ 30/ 17 44/ 264 

02/06/17 44/ 267 

02/06/17 44 /267-68 

02/16/ 17 44/272-73 

02/ 16/17 44/ 273 

02/16/17 44/ 273 

03/20/17 44/ 287 

03/20/17 44/ 284 

03/20/17 44/ 285 

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03/ 20/ 17 44/286 

03/20/17 44/ 2854 

03/20/17 44/286 

04/ 02117 44/292 

04/10/17 44/ 296 

06/05/17 44/ 311 

06/05/17 44/311 

06/ 15/17 44/ 312 

06/05/ 17 44/315 

06/15/17 44/ 319 

06/22/17 44/321 

06/29/ 17 44/ 322 

09/25/17 44/ 341 

09/25/17 44/341 

10/18/17 44/348 

06/ 17/ 07 27/550 

01/28/07 27/146-47 

06/17/07 27/547-48 

06/17/07 27/554-55 

06/17/07 27 /544-45 

06/17/07 27/543-44 

06/17/07 27/542-43 

06/17/07 27/556 

02/27/07 27/338-339 

01/23/17 44/262 

07/31/17 44/331 

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05/09/17 44/305 

06/22/17 44/322 

04/04/23 54/298 

04/04/23 54/297 

04/10/23 54/303 

04/10/23 54/303 

04/10/23 54/304 

04/10/23 54/305 

04/10/23 54/304 

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04/17/23 54/314 

04/19/23 54/314 

04/24/23 54/317 

04/24/23 54/319-20 

04/24/23 54/315 

1359 
1360 

04/21123 

04/20/2:3 

04/11/23 

04/20/2:3 

04/19/23 

04119/23 

04/20/23 

04/12/2:3 

04/25/23 

05/24/23 

04/26/23 

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04/04/23 

04/26/23 

04/27/23 

04/27/23 

05/05/23 

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05/12/23 

05/25/23 

05/24/23 

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04/21/23 

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05/04/12 

06/01/23 

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01/28/36 

09/24/24 

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09/30/24 

10/02/24 

10/03/24 

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10/04/24 

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10/01/24 

10/01/24 

10/31124 

11/07/24 

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12/30/24 

12/30/24 

12/19/25 

02/11/26 

06/13/26 

06/13/26 

05/12/59 

06/30/59 

06/29/59 

596 

978 FEDERAL REPORTER, 2d SERIES 

APPENDIX B-Continued 

04/24/23 

04/24123 

04/24/23 

04/24/23 

04/24/23 

04/24/23 

04/24/23 

05/01/23 

05/01123 

06/01/23 

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01/15/24 

01/28/26 

09/24/24 

10/07/24 

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01101/25 

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07/02/26 

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54/316 

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79/603 

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65/57 

65/87 

65/130 

65/130 

264/531 

265/207 

265/203 
02/18/25 

10/15/29 

11108/29 

12/11/33 

12/01131 

09/28/34 

10/22/34 

05/23/44 

05/25/44 

10/25/44 

09/14/50 

09/27/50 

07/30/52 

09/27/55 

03/13/58 

12/03/57 

03/11/58 

01129/58 

02/20/58 

03/21158 

02/25/58 

12/11/57 

12/03/57 

03/19/58 

02/19/58 

05/09/58 

05/15/58 

05/09/58 

05/05/58 

02/17/59 

09/16/58 

07/01/59 

06/26/59 

06/26/59 

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07/07/59 

07/02/59 

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07/01/59 

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07/01159 

06/26/59 

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07/26/60 

05/17/65 

05/17/65 

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05/26/65 

06/02/65 

05/20/65 

07/01/65 

07/01165 

07/16/65 

07/29/65 

07/06/65 

09/20/65 

597 

CATAWBA INDIAN TRIBE v. STATE Qlo' S.C. Cite u 971 F.ld 1334 (41h Clr. 1992) 

APPENDIX B-Continued 

02/20/25 54/722 

10/22/29 74/149 

11/12/29 74/156 

12/27/33 79/165 

01/16/32 74/479 

09/29/34 79/242 

10/24/34 79/296 

09/26/44 114/48 

09/26/44 114/47 

10/31/44 114/71 

10/19/50 163/493 

10/19/50 163/494 

08/07/52 184/219 

09/30/55 18/408 

03/27/58 249/232 

03/27/58 249/234 

03/27/58 249/236 

03/27/58 249/238 

03/27/58 249/240 

03/27/58 249/242 

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03/27/58 249/246 

03/27/58 249/248 

03/27/58 249/250 

03/27/58 249/252 

06/10/58 251/360-61 

06/10/58 251/362-€3 

06/10/58 251/364-€5 

06/24/58 252/22 

03/03/59 260/220 

09/23/58 255/96 

08/13/59 266/112 

08/13/59 266/142 

08/13/59 266/132 

08/13/59' 266/118 

08/13/59 266/120 

08/13/59 266/122 

08/13/59 266/124 

08/13/59 266/126 

08/13/59 266/134 

08/13/59 166/114 

08/13/59 266/144 

08/24/59 266/285 

08/13/59 266/116 

08/13/59 266/128 

08/13/59 266/136 

08/13/59 266/138 

07/28/60 276/547 

05/17/65 337/234 

05/17/65 337/240 

05/20/65 337/320 

05/20/65 337/323 

06/02/65 338/28 

06/24/65 338/480 

06/24/65 338/492 

07/06/65 339/157 

07/06/65 339/163 

07/20/65 339/484 

08/03/65 340/232 

08/09/65 340/349 

10/01/64 342/208 

1361 
1362 

01/04/65 

02/04/65 

06/29/65 

06/29/65 

06/29/65 

06/29/65 

06/29/65 

10/09/65 

09/29/66 

08/13/57 

08/12/57 

08/12/57 

08/12/57 

08/16/57 

08/08/57 

09/04/57 

09/04/57 

02/02/59 

02/17159 

12/01/67 

01125/68 

02/07/68 

02/08/68 

09/28/67 

02/12/67 

12/13/67 

11/16/67 

10/10/67 

11/29/67 

11/08/67 

12/28/67 

02/13/68 

02/15/68 

02/13/68 

04/03/69 

04/07/38 

04/11/38 

03/23/38 

04/09/38 

04/09/38 

04/09/38 

03/24/38 

04/11/38 

05/12/38 

04/09/38 

04/12/38 

04/09/38 

04/20/38 

03/18/38 

11/13/66 

05/17/67 

05/26/67 

05/26/67 

12/13/66 

02/10/59 

03/27/68 

03/27/68 

09/04/68 

03/28/59 

03/27/68 

02/12/68 

598 

978 FEDERAL REPORTER, 2d SERIES 

APPENDIX B-Continued 

01/14/65 332/431 

02/11/65 333/468 

07/01/65 339/327 

07/14/65 339/343 

07/14/65 339/340 

07/14/65 339/336 

09/25/65 342/95 

10/13/65 342/449 

10/17/66 356/267 

09/03/57 243/247 

09/03/57 243/249 

09/03/57 242/251 

09/03/57 243/253 

09/03/57 243/255 

09/03/57 243/257 

09/06/57 243/318 

09/06/57 243/320 

03/26/59 261/149 

03/26/59 261/153 

12/01/67 370/482 

02/01/68 372/437 

03/07/68 374/9 

03/07/68 374/13 

10/13/67 369/48 

12/18/67 371/265 

12/18/67 371/2707 

11/29/67 370/427 

10/13/67 369/51 

01/23/68 372/281 

11/29/67 370/415 

01/05/68 372/14 

02/15/68 373/100 

02/21/68 373/230 

02/15/68 373/98 

04/08/69 388/231 

04/15/38 87/569 

04/15/38 87/571 

04/15/38 87/573 

04/15/38 87/571 

04/15/38 87/568 

04/15/38 87/573 

03/25/38 87/552 

04/15/38 87/568 

05/13/38 87/600 

04/15/38 87/572 

05/29/38 87/592 

04/15/38 87/570 

04/22/38 87/583 

04/23/38 87/584 

12/15/66 358/183 

01/24/68 372/310 

06/07/67 363/569 

06/07/67 363/572 

12/15/66 358/180 

03/26/59 261/151 

04/09/68 375/362 

05/01/68 376/298 

09/05/68 381/82 

04/01/59 261/306 

04/29/68 376/242 

02/12/68 373/15 
599 

CATAWBA INDIAN TRIBE v. STATE OF S.C. 1363 Clle u 971 F.2d 1334 (41h Clr. 199Z) 

APPENDIX B-Continued 

02/08/68 02/12/68 373/18 

02/13/68 02/20/68 373/168 

03/15/68 03/16/68 374/291 

03/14/68 03/16/68 374/294 

03/25/68 03/26/68 374/584 

04/01168 04/04/68 375/227 

03/27/68 04/04/68 375/230 

03/28/68 04/04/68 375/233 

03/29/68 04/04/68 375/236 

03/21168 04/04/68 375/240 

03/29/68 04/04/68 375/244 

04/09/68 04/10/68 375/370 

04/12/68 04/13/68 375/435 

04/12/68 04/13/68 375/438 

04/09/68 04/18/68 375/534 

04/09/68 04/18/68 375/538 

04/20/68 04/23/68 376/81 

04/15/68 04/23/68 376/84 

04/26/68 04/30/68 376/253 

05/06/68 05/07/68 376/461 

05/15/68 05/16/68 377/21 

05/13/68 05/16/68 377/18 

05/23/68 05/24/68 377/248 

06/17/68 06/20/68 378/285 

07/11168 07/17/68 379/215 

07/05/68 07/17/68 3791218 

10/24/68 10/28/68 383/33 

12/28/68 01107/69 385/258 

03/11/69 03/13/69 387/282 

07/07/69 07/18/69 392/153 

06/14/69 07/18/69 392/156 

07/09/69 07/18/69 392/160 

08/05/69 08/06/69 393/32 

08/06/69 08/29/69 393/494 

09/18/69 09/23/69 394/411 

09/18/69 09/23/69 394/415 

10/07/69 10/22/69 395/407 

11/07/69 11/10/69 396/102 

11/24/69 12/06/69 397/154 

11/24/69 12/08/69 397/149 

01126170 02/02170 398/449 

01/28170 02/02170 398/455 

01/28170 02/02170 398/452 

04/23/68 02/02170 398/459 

10/14/68 02/16173 Judgment 

Roll No. 

36800/ 

Box 939 

04/04170 04/14170 401/209 

07/30/69 08/18/69 393/245 

02/14171 02/23/71 98/476 

07/29170 02/23171 98/477 

01/21/29 02/21130 74/159 

Lancaster County, South Carolina 

05/13/54 05/19/54 J4/29 

07/20/55 08/02/55 MAl? 

12/21137 12/22/37 I-3/63 

12/21/37 12/22/37 1-3/64 

01/04/38 01/04/38 I-3/88 
600 

1364 978 FEDERAL REPORTER, 2d SERIES 

APPENDIX B-Continued 

01/04/38 01/04/38 l-3/ 91 

01/03/38 01/04/38 l-3/ 85 

01/03/38 01 /04/38 l-3/84 

06/01/38 06/06/38 l-3/180 

04/15/38 04115/38 l-3/156 

05/01/38 ? 

01/03/38 01104/38 1-3/81-82 

01/04/38 01/04/38 l-3/90 

03/15/38 05/11/38 15/551 

06/03/38 07/25/38 1-3/195-96 

04/01/38 07/20/38 1-3/193-94 

01/04/38 01/14/38 1-3/86-87 

03/10/38 03/25/38 1-3/139-40 

01/11/38 01/ 12138 1-3/102 

01/12/38 01/12/38 1-3/104 

01/04/38 01/04/38 1-3/89 

01/03/38 01/04/38 1-3/83 

01/11/38 01/12138 1-31101 

04/05/38 04/13/38 l-3/155 

01/26/38 01/26/38 1-3/116-17 

07/06/67 ? ? 

05/13/68 05/16/68 Z-5/245 · 

05/03/68 05/17/68 Z-5/255 

05/23/68 05/28/68 Z-5/335 

05/25/68 05/28/68 Z-5/338 

05/27/68 05/28/68 Z-5/336 

05/27/68 05/28/68 Z-5/339 

05/28/68 06/06/68 Z-5/391 

05/25/68 07/09/68 Z-5/527 

07/03/68 07/09/68 Z-5/523 

06/11/68 07/09/68 Z-5/526 

07/03/68 07/09/68 Z-5/524 

07/31/68 08/13/68 Z-5/673 

07/15/68 09/18/69 Z-5/2591 

10/26/68 11/13/68 Z-5/1056 

06111/68 12/23/68 Z-5/1204 

02/10/69 02/20/69 Z-5/1470 

02/20/69 04/15/69 Z-5/1745 

12/04/68 07/17/69 Z-5/2268 . 

06/10/69 07/17/69 Z-5/2269 

08/08/69 08/26/69 Z-5/2585 

10/07/69 10/20/69 Z-5/2749 

09/22/69 10/22/69 Z-5/2753 . 11/20/69 11/25/69 Z-5/2919 

11/21/69 12/06/69 Z-5/2967 

02/24/70 03/02170 A~/304 

03/03170 03/05170 A~/326 

05/05170 05/18170 A-6/642 

Chester County, South Carolina 

01/04/17 01/09/17 167/64 . 

02/13/34 02/13/34 269/215 

02/13/34 02/19/34 269/217 

02/06/34 02/19/34 269/218 

02/12/34 02/19/34 269/218 

01/30/34 02/21/34 269/219 

02121/34 02/23/34 269/221 

03/07/34 02/31/34 269/228 

07/31/34 09/17/34 269/259 

09/21/49 10/21/49 357/200 
11/26/53 

01/28/54 

10/07/53 

10/18/51 

02/22/68 

601 

CATAWBA INDIAN TRIBE v. STATE OF S.C. CUe u 9711 F.ld 1334 (4lh Clr. 1992) 

APPENDIX B-Continued 

12/10/53 375/141 

02/11/54 379/91 

03/12/54 375/199 

12/21/51 D-4/302 

04/30/68 Z-5/143 

York County, South Carolina 

09/28/68 

07/03/68 

07/08/15 

07/25/60 

03/28/59 

04/15/69 

10/11/24 

07/27/23 

10/11/24 

05/02/67 

11/22/66 

11/19/29 

10/23/67 

01/13/69 

11/16/67 

07/13/68 

04/12/65 

03/27/68 

01/03/36 

08113/66 

01/31/56 

10116/41 

01/31156 

11/19/29 

04/06/68 

06/15/68 

02/16/68 

03/07/68 

02/13/68 

12/16/67 

10/15/68 

07/05/68 

07/12/15 

07/28/60 

04/01/59 

04/16/69 

10/14/24 

01115/24 

10/14/24 

05/12/67 

12/01166 

11/27/29 

10/25/67 

01/17/69 

11/20/67 

08/13/68 

04/20/65 

04/29/68 

01/29/36 

08/23/66 

02/10/56 

10/21141 

02/10/56 

11/26/29 

04/08/68 

06/17/68 

02119/68 

03/07/68 

02/15/68 

12/18/67 

382/321 

378/548 

43/327 

276/550 

261/302 

388/369 

54/641 

59/311 

54/640 

363/45 

357/505 

74/159 

369/308 

385/403 

370/260 

380/217 

336/168 

376/239 

86/135 

354/355 

223/394 

98/516 

223/399 

74/158 

375/343 

378/194 

373/152 

374/1 

373/88 

371/273 

1365 

Summary judgment is affirmed as to the following tracts for that portion of the land that 

is below 570 feet above mean sea level: 

05/28/26 

07/08/24 

12/09/24 

09/17/24 

09/08/24 

07/29/25 

09/22/24 

07/08/24 

09/24/24 

11/17/24 

05/03/28 

03/19/09 

09/17/24 

11/25/24 

06/14/04 

12/16/25 

10/14/24 

03/17/25 

07/31124 

08/30/26 

07/12/24 

12/18/24 

10/03/24 

09/17/24 

08/13/25 

10/01124 

07/10/24 

10/01124 

11/19/24 

05/11/28 

01107/10 

10/03/24 

12/04/24 

08/13/04 

01115/26 

10/18/24 

03/24/25 

08/09/24 

65/146 

61/145 

62/178 

62/3 . 

61/283 

64/132 

54/628 

611134 

54/623. 

62/104 

71/251 

291778-80 

61/314 

62/144 . 

24/187-88 

66/166 

62/36 

63/128 

611183 
1366 

07/24/25 

12/30110 

07/31/24 

08/08/24 

09/10/24 

06/04/24 

07/08/24 

03/31/24 

03/29/24 

03/19/09 

03/19/09 

05/11/00 

05/10/32 

12/19/27 

09/01/25 

602 

978 FEDERAL REPORTER, 2d SERIES 

APPENDIX B-Continued 

08/05/25 64/137 

01/02/11 32/56 

08/09/24 54/599 

08/16/24 61/208 

09/17/24 54/616 

06/07/24 61/69 

07/12/24 61/143 

04/02/24 60/243 

04/02/24 60/244 

01/07/10 29/773-76 

01/07/10 29/776-78 

06/13/00 19/621-33 

06/01/32 74/540 

12/21/27 65/303 

12/05/25 65/48 

Amend., A & B, (1015--1018) 

York County, South Carolina 

05/11/00 

09/01/25 

09/01/25 

12/19/27 

05/10/32 

08/05/36 

05/28/26 

07/08/24 

12/09/24 

09/17/24 

09/08/24 

07/29/25 

09/22/24 

07/08/24 

09/24/24 

11/17/24 

05/03/28 

03/19/09 

09/17/24 

11/25/24 

. 06114/04 

12/16/25 

10114/24 

03117/25 

06/05/24 

07/31/24 

09/08/24 

07/24/25 

12/30110 

07/31/24 

08/08/24 

09/10/24 

06/04/24 

03/19/26 

07/08/24 

03/31/24 

03/29/24 

03/19/09 

03/19/09 

05/11/00 

05/10/32 

12/19/27 

06/13/00 

12/05/25 

12/05/25 

12/21/27 

06/01/32 

08/05/36 

08/30/26 

07/12/24 

12/18/24 

10/03/24 

09117/24 

08/13/25 

10/01/24 

07/10/24 

10/01/24 

11119/24 

05/11/28 

01/07/10 

10/03/24 

12/04/24 

08/13/04 

01/15/26 

10/18/24 

03/24/25 

06/07/24 

08/09/24 

09/17/24 

08/05/25 

01/02/11 

08/09/24 

08116/24 

09/17/24 

06/07/24 

04/09/26 

07/12/24 

04/02/24 

04/02/24 

01/07/10 

01/07/10 

06/13/00 

06/01/32 

12/21/27 

19/621-633 

65/48 

65/53 

65/303 

74/540 

87/138 

65/146 

611145 

62/178 

62/3 

61/283 

64/132 

54/628 

61/134 

54/623 

62/104 

71/251 

29/778-80 

61/314 

62/144 

24/187-88 

66/166 

62/36 

63/128 

61/68 

61/183 . 61/283 

64/137 

32/56 

54/599 

61/208 

54/616 . 61/69 

2-P/19 

Plat Book 

61/143 

60/243 

60/244 

29/773-76 

291776-78 

19/621-33 

74/540 

65/303 

III (all tracts b• 

low) 
603 

CATAWBA INDIAN TRIBE v. STATE OF S.C. 

09/01/25 

05/21/30 

05/18/25 

09/03/24 

09/24/24 

09/08/24 

09/23/24 

09/01/25 

06/27/36 

Defendant 

11. Crescent Re· 

sources, Inc. 

Date of Deed 

03/27/70 

05/22/70 

03/27/70 

03/27/70 

03/27170 

05/22170 

05/14170 

06/03170 

05/22/70 

06/03170 

12. State of South 

Carolina 

Date of Cont•eyance 

06/02/1893 

06/31105 

12/30/1893 

02/01/07 

04/24/1897 

03/05/29 

021??/29 

02/??/29 

02/25/29 

06/03/19 

10/06/20 

10/04/20 

04/15/19 

07/06/20 

02/19/41 

06/04/30 

06/04/30 

02/26/29 

07/02/20 

CUe u 978 F.2d 1334 (4th Clr. 1992) 

APPENDIX B-Continued 

12/05/25 65/48 

05/28/30 74/231 

12/24/25 65/61 

09/17/24 54/623 

10/01/24 54/623 

09/17/24 54/617 

10/01/24 54/622 

12/05/25 65/53 

08/05/36 87/138 

Portion of Judgment Order 

Describing Parcel 

One, Q, (901) 

Land conveyed to Crescent by D.M. 

Creech and Margaret F. Creech by deed 

dated December 29, 1983, and recorded 

in the Office of the Clerk of the Court 

for York County, South Carolina, on De· 

cember 29, 1983, in Deed Book 736 at 

page 298. 

Two, B, (957-958) 

Record,ation Date 

03/27170 

05/22170 

03/27170 

03/27/70 

03/27170 

05/27/70 

05/18.'70 

06/09/70 

05/27170 

08/10170 

One, R, (902-905) 

Book 

M13 

25 

134 

27 

20 

73 

65 

65 

73 

50 

48 

53 

50 

53 

103 

76 

76 

73 

48 

Book/Page 

400/466 

402/527 

400/463 

400/470 

400/468 

402/521 

402/309 

403/259 

4021524 

405/369 

Page 

1 

157 

385 

208 

655 

153 

548 

546 

155 

6 

189 

205 

4 

17 

198 

455 

457 

154 

736 

1367 

Section of this 

Opinion 

Addressing 

Objections 

III, n. 5 (All 

tracts•) · 

IV-A,III,n.5(All 

tracts•) 

III (All tracts•) 
604 

1368 978 FEDERAL REPORTER. 2d SERIES 

APPENDIX B-Continued 

Date of Conreyance Book Page 

11/15/20 ? 

09/24110 37 97 

08/21/19 50' 5 

07/20/20 52 13 

02/19/41 103 199 

03/16/56 231 444 

08/31/26 68 19 

10/02/19 48 344 

08/16/19 44 662 

07/01/19 49 369 

05/14/20 ? 

06/24/20 53 99 

07/29120 44 716 

04/24/1897 20 653 

02/20/06 26 172 

07/12/06 26 649 

01/31/06 25 595 

02/23/06 26 174 

01/20/22 56 155 

01/11/26 66 181 

01/11/26 65 73 

02/22/22 56 128 

07/01/07 28 186 

03/12119 44 569 

11127/05 26 173 

04/24/1897 20 651 

08/07/61 289 314 

08/31/18 47 132 

07/29/18 47 210 

05117/19 44 636 

06/02119 44 621 

05/17/61 286 453 

08/23/29 75 161 

12/28/12 40 321 

12/06/12 40 302 

12/06/12 36 624 

12/16112 36 622 

09129/25 64 209 

12/31/25 66 133 

07/29120 53 123 

12112/18 47 258 

01/12/20 51 122 

12/18/18 47 256 

02/20/63 308 507 

08/17/48 140 88 

10/28/30 77 131 

12/23/11 38 389 

12/19/11 38 390 

08/02/65 340 220 

03/04/10 35 331 

12/28/15 45 41 

11/14/1893 M13 112 . 

05/27/32 81 18 

10/01/62 305 453 

09/27/62 305 457 

04/26/63 311 553 
605 

CATAWBA INDIAN TRIBE v. STATE OF S.C. CUe u 978 F.ld 1334 (4th Clr. 1991) 

APPENDIX B-Continued 

13. Southern Railway One, S, (906-916) 

Company 

Date of Conveyance 

9/22/1848 

10/02/1848 

09/23/1848 

09/23/1848 

03/01/1899 

05/05/1853 

10/11/48 

09/26/1848 

09/22/1848 

Book 

p 

0 

0 

0 

18 

Q 

129 

0 

0 

Page 

450 

366 

367 

367 

575 

143 

335 

365 

364 

1369 

III, n. 5 (All 

tracts") 

Deed from Dr. William Moore to C & S C.P. Railroad dated April 25, 1949 

11/21102 22 541 

11/21/02 22 541 

Memorandum of Agreement Town of Fort Mill dated 07/17/24 

03/01/40 98 228 

Ordinance from the Town of Fort Mill dated 03/06/40 

03/01/40 98 228 

Agreement Deed Book 129 at page 335 dated 10/11/48 

Deed dated 9/21/56 from Springs Foundation, Inc. 

Deed from Dr. William Moore dated 4/25/1849 

Deed from J.L. Moore dated 7/24/1854 

Deed from William E. White dated 02/07/1856 and recorded in Deed Book R at page 

37 

09/20/1848 0 460 

06/13/01 21 736 

04/8/20 44 783 

1/15/1917 44 266 

09/12/46 114 396 

5/18/46 124 177 

Deed from Eli Biggers dated 12122/1847 

Condemnation Proceeding Robert Miller Spring term 1853 

Deed from Jarnes Moore by J.C. Moore dated 12122/1848 

Jane McNair and Jane Henry dated 12/22/1847 

9/20/1848 0 459 

9/19/1848 0 460 

Deed from James Workman dated 12/22/1847 

Deed from J.C. Moore dated 12/12/1848 

9/20/1848 0 463 

Deed P 450 dated 10/21/1851 

Deed 23 at page 68 dated 5/26/1903 

Deed 39 at Page 71 dated 12/19/1911 

Deed Q at Page 251 dated 2/14/53 

Deed 100 at Page 233 dated 6/30/43 

Deed 19 at page 472 dated 3/26/1900 

Deed 22 at page 473 dated 11/24/1902 

Deed 35 at page 563 dated 3110/1911 

Deed 35 at page 567 dated 3/10/1911 

Agreement with Catawba Lumber Company dated 2/9/18 

Deed from Victoria Cotton Mills dated 6/111916 

11/21/1918 44 523 

Deed 100 at page 233 dated 6/30/43 

Deed 176 at page 334 dated 10/16/51 

Deed from James Workman dated 12/22/1847 

9/19/1848 and 9/1/1848 0 462 

9/18/1848 0 459 

9/5/1848 0 575 

7/22/65 341 446 
606 

1370 978 FEDERAL REPORTER. 2d SERIES 

APPENDIX B-Continued 

9/5/1848 0 461 

9/16/1848 0 463 

Deed GG at page 495 dated 7 I 4/1849 

4/4/1850 GG 614 

7/12/1849 GG 49G 

5/10/1887 ~ 706 

Deed E-6 at page 712-3 dated 6/16/1887 

Deed E-6 page 708-9/10 dated 6/16/1887 

6/16/1887 E-6 712-3 

917/1888 F-7 712-13 

6/15/1887 E-6 716 

6/111887 E-6 712-3 

6/11/1887 E-6 710-11 

2/25/1900 29 514 

6/15/1887 E-6 714 

8/20/1918 44 479 

11/1/1961 293 258 

6/15/1887 E-6 714 

10/1889 J-10 735 

9/2111888 F-7 673 

9/2111888 E-7 675 

Deed from F.H. Barber dated 3/30/1906, Deed E-6, page 6 

98-1 dated 5/9/1887 

5/8/1888 J-10 725-6 

9/2111888 F-7 676 

9/21/1883 F-7 688 

5/10/1890 E-6 692-3 

5/1887 E-6 695 

2/111886 J-10 723 

5/9/1887 E-6 694 

1880 E-6 686 

Condemnation in,·olving property of W.H. Cowan dated 7/5/1889 

Condemnation involving property of Mr. R.B. Cowan dated 2/10/1888 

Property of R.M. Cowan judgment dated 11/2111889 

Condemnation R.H. Cowan 11/11/1889 

5/21/1887 E-6 704 

9/4/1906 26 443 

Condemnation involving property of W.l. Steele dated 4/30/1889 

9/10/1913 39 398 

Condemnation involving property of Samuel L. Fewell dated 2/11/1888, Judgment 

Roll 1710 

10/30/1911 44 194 

9/10/1913 39 398 

Condemnation involving property of Mrs. Margaret S. Kimbrell dated 4/30/1888, 

Judgment Roll 1753 

1/23/1904 23 550-3 

1/25/1904 23 550-3 

Condemnation proceeding involving property of Larry W. White dated 5/18/1888, 

Judgment roll 1750 ·· Condemnation in\·olving property of A.H. White, James S. White, Mary E. White, 

A.H. White and Mrs. A.R. Witherspoon dated 1/24/1888, Judgment rolls 1752 and 

1751 . 

10/18/1901 29 666 

Condemnation involving property. of Isabella Wilson October term 1920 

10/18/09 29 . 666 . Condemnation invoMng the property of J.S. White, et al. dated 1/24/1885, Judgment 

Roll 1751 . 

Ordinance City of Rock Hill, Minute Book· 425 dated 8/20/45 

3/25/09 29 . 602 

3/25/1908 29 . 259 

Condemnation invoh;ng the property of Fewell, Judgment Roll 1900 

Deed from A.D. Holler dated 5/24/1896 
607 

CATAWBA INDIAN TRIBE v. STATE OF S.C. 1371 C11e u 971 F.ld 1334 (41h Clr. 1992) 

APPENDIX B-Continued 

Condemnation involving property of Isabella H. Wilson, Executrix, October term 1920 

Deed from A.D. Holler dated 3/22/1890 

2/1311905 24 732 

Condemnation of property of Samuel A. Fewell dated 2/11/1888, Judgment roll1720 

Condemnation of property of W.A. Fewell dated 7/22/1887, Judgment roll 1716 

Condemnation involving property of Robert Morrison, Judgment roll 1884 

4/11/1887 ~ 700-1 

4/11/1887 ~ 790-791 

4/11/1887 ~ 758-9 

4/911887 F-7 17 

Condemnation of property of J.A. Rainey dated 4/16/1889, Judgment roll 1905 

4/11/1887 ~ 770-1 

9/22/1887 F-7 673 

4/11/1887 ~ 798 

9/22/1913 39 386 

6/2/1888 F-7 56~7 

3/26/1888 J-10 727 

9/10/1901 21 46&-7 

10/511901 23 792-3 

Deed from Yorkville Cotton Oil Co. dated 10/22/1915 

8/4/11 38 169 

3/26/1888 E-J-10 727 

8/4/1911 38 189 

6/23/1911 38 17 

11/25/1907 38 779 

7/24/1894 24 7 

Condemnation of property of William C. Latimer dated 8/31/1887, Judgment roll1717 

Resolution Town Council of Yorkville dated 611611887 

4/11/1887 E-6 798 

4/11/1887 ~ 770-1 

4/9/1887 F-7 50 

5/26/1887 F-7 1 

6/2/1888 F-7 567-68 

4/9/1887 F-7 52 

4/9/1887 F-7 15 

Condemnation involving property of A. Avery dated 6/18/1888, Judgment roll 1787 

6/28/1887 F-7 337 

7/4/1887 J-10 722 

Condemnation bvolving property of D.S. Thornbury dated 6/18/1888, Judgment roll 

1788 . 

6/26/1867 F-7 339 

6/24/1887 ~ 721 

7/25/1887 F-7 335 

6/21/1887 ~ 749 

7/25/1887 F-7 335 

617/1887 ~ 751 

7/16/1887 ~ 75&-57 

5/10/1887 ~ 698 

8/29/1887 F-7 334 

8/29/1887 F-7 334 

6/27/1887 F-7 563 

6/1887 F-7 562 

5/21/1887 ~ 70&-7-8 . Condemnation of property of B.D. Wheeler dated 8/25/1887, Judgment roll·1715 

4/13/1887 ~ 788-9 

5/27/1887 F-7 7 

4/13/1887 ~ 788-9 

4/12/1887 ~ 794-5 

4/13/1887 ~ 788-9 

4/12/1887 ~ 792 

4/4/1887 F-7 25 

3/8/1889 (;-8 657 

Decree involving property of Mrs. Eudora Plexico, et al dated 2/3/34 
608 

1372 978 FEDERAL REPORTER. 2d SERIES 

APPENDIX B-Continued 

4/4/1887 F-7 25 

3/8/1889 ~ 657 

4/12/1887 F-7 3 

3/4/1887 E-6 768-9 . 3/4/1887 E-6 766--7 

3/4/1887 F-7 27 

3/4/1887 F-7 13 

3/4/1887 F-7 48 

3/4/1887 F-7 13 

6/27/56 230 280 

3/4/1887 F-7 13 

3/4/1887 F-7 ll 

4/12/1887 F-7 32 

3/2/1887 F-7 498 

5/3/1887 F-7 30 

3/2/1887 E-6 764-5 

5/6/1887 E-6 772-3 

5/6/1887 E-6 772-3 

5/6/1887 F-7 34 

5/3/1887 F-7 30 

3/1/1887 E-6 760-1 

3/1/1887 E-6 778-9 

417/1877 F-7 5 

3/111887 E-6 796--7 

3/1/1887 E-6 774-5 

9/21/1889 ~ 655 

3/4/1887 F-7 19-20 

3/1/1887 E-6 786--7 

9/21/1889 ~ 655 

3/2/1887 F-7 46 

3/111887 E-6 780-1 

7/1/1890 71 613 

8/10/1907 6 20 

ll/9/1887 Q 70-

ll/14/1877 y 17 

ll/14/1896 u 138 

6/12/1875 A-1 164 

3/2/1887 Q 70 

11/14/1871 y 12 

4/29/1910 37 57 

2/15/1891 p 299 

1/17/09 74 680 

12/12/1854 Q 551 

1/12/1903 72 549 

10/30/09 23 163 

7/17/1891 ·A-ll 73 

7/24/1891 A-ll 34 

8/5/1896 17 ' 762 

4/14/1904 33 393 

4/10/1907 29 683 

Agreement Vietor Cotton Oil Co. 4/18/1902 

8/30/1907 22 307 

'5/19/1903 - 77 23 

5/25/1903 ' 29 377 

Agreement Beverly Mfg. Co. dated 10/15/1903 

12/8/1906 66 87 

12/4/1902 22 '' 790 

Deed from M.J. Brown dated 9/111903 

Deed from B.M. Smith, et al. dated ll/14/1901 

6/23/1901 96 470 

7/8/1901 90 467 
609 

CATAWBA INDIAN TRIBE v. STATE OF S.C. Cite u 971 F.ld 1334 (4th Clr. 199Z) 

APPENDIX B-Continued 

4/26/02 7 297 

4/8/1902 7 279 

4/2111902 7 279 

4/17/09 29 3 

Agreement Hawthorne Spinning Mills 1/29/1906 

Agreement Clover Cotton Mills 7/10/1909 

Agreement W.D. Reynolds 11/15/1916 

Deed 27-656 dated 9/17/1907 

Deed 36-525 dated 2/20/1912 

1/27/1899 16 234 

4/26/1942 100 63 

14. Bowater, Inc. 

Date of Conveyance 

6/22/62 

6/22/62 

6/22/62 

8/30/56 

10/17/56 

8/31/56 

8/29/56 

8/29/56 

9/1/56 

8/23/56 

11/2/56 

8/23/56 

8/29/56 

8/29/56 

8/29/56 

8/29/56 

8/29/56 

8/29/56 

8/29/56 

8/29/56 

8/27/56 

6/20/56 

8/9/56 

8/18/56 

8/31/56 

917/56 

8/29/56 

10/13/56 

8/31/56 

Date of Conveyance 

9/20/60 

9/1/60 

11/14/61 

8/1185 

10/9/61 

10/6/86 

10/25/65 

9/16/69 

4/11/59 

One, T, (917-919) 

547~5 

Book Page 

300 146 

300 144 

100 142 

231 63 

232 443 

231 108 

231 85 

231 87 

231 111 

232 129 

233 124 

233 122 

231 60 

231 66 

231 73 

231 76 

231 79 

231 82 

231 54 

231 51 

231 60 

233 102 

233 112 

233 114 

233 120 

233 117 

232 293 

232 296 

231 120 

Three, V, (995) 

Book Page 

279 44 

278 158 

294 61 

838 205 

291 340 

? ? 

343 311 

394 284 

V4 221 

1373 

Ill (All tracts") 

II (farm) 

III (All tracts") 

II (dates) 

II (dates) 

II (dates) 

n. 10 

II (tree) 

VI 

II (tree) 

II (tree) 

II (tree) 

II (tree) 

II (tree) 
1374 

Dau of Conveyance 

12/21/84 

2/14/86 

7/31/86 

8/86 

Defendant 

610 

978 FEDERAL REPORTER, 2d SERIES 

APPENDIX 8-Continued 

Book Page 

798 276 

904 111 

898 7 

899 296 

Portion of Judgment Order 

Describing Parcel 1 

15. Nisbet Properties One, U, (920) 

Taz Map Number 22~1.00 

1~100.00 

1~1.00 

19 

16. John M. Spratt, One, V, (921) 

Jr. 

Tract 1 

(Tax Map 20-01-22-12) 

Tract 2 (922) 

(Tax Map 708-17; 21~1-21-()2 and 

20-06-01-50) 

Tract 3, (924) 

(Part of Tax Map 708-17) 

Tract 4, (925) 

(Part of Tax Map 708-17) 

Tract 5, (92~926) 

(Part of Tax Map 708-17) 

Tract 7, (927-930) 

(Part of Tax Map 708-17) · Tract 8, (930) 

(Part of Tax Map 708-17). 

Tract 9, (930-931) 

(Part of Tax Map 708-17) 

Tract 10, (931-932) 

(Part of Tax Map 708-17) 

Tract 11, (932-933) 

(Part of Tax Map 708-17) 

Tract 12, (933) 

(Part of Tax Map 708-17) 

Tract 13, (933-934) 

(Part of Tax Map 708-17) 

Tract 14, (934-935) 

(Tax .Map 661-14) 

Tract 15, (93~936) 

(Tax .Map No. 708-18) 

Tract 16, (936) 

(Tax Map 661-00-00-014) 

Tract 17, (936-937) 

(Tax Map 020-02-01-006) . 

II (tree) 

II (tree) 

II (tree) 

II (tree) 

Section of this 

Opinion· 

Addressing 

Objections 

n. 5, n. 10, III, VII 

(All tracts") 

IV-E, F 

II (tree) 

VI 

IV-F 

II (tree) 

VI 

II (tree) 

VI 

III (All tracts below) 

n. 5 
611 

CATAWBA INDIAS TRIBE v. STATE OF S.C. Clle u 971 F.ld 1334 (4th Clr. 1992) 

APPENDIX B-Continued 

17. Hiram Hutchison, One, W, (938-940) 

Jr. 

Parcel 1-Tax Map 664-00-00-012 

Parcel 2-Tax Map 664-00-00-011 

Parcel 3-Tax Map 627-18-04-003 

18. J. Max Hinson One, X, (941-946) 

Tract 3-Tax .Map 20-1.00 

Tract 5--Tax Map 707-1 

Tract 10--Tax Map 659-232 

Tract 23-Tax Map 740-1 

Tract 25--Tax Map 20-4-34-4 

Three, W, (998) 

1375 

III, n. 5 (All 

tracts•) 

III (All tracts be· 

low) 

II (poss.) 

III, n. 5 (All tracts 

below) 

(All tracts in York County, except Tract 4, which is in Lancaster County) 

Tract 1-Deed Book 132, page 26 

Tract 2-Deed Book 165, page 183 

Tract 4-Deed Book X-5, page 494 

Tract &-Deed Book 358, page 480 

Tract 8-Deed Book 248, page 97 

Tract 9-Deed Book 220, page 128 

Tract 11-Deed Book 182, page 26 

Tract 12-Deed Book 353, page 346 

Tract 13-Deed Book 337, page 532 

Tract 14-Deed Book 242, page 454 

Tract 15-Deed Book 286, page 398 

Tract 1&--Deed Book 270, page 485 

Tract 17-Deed Book 259, page 447 

Tract 18-Deed Book 217, page 361 

Tract 19-Deed Book 205, page 96 

19. Arnold F. Mar- One, Y, (947) 

shall 

20. Ashe Farms 

Deed dated 1/18/66 recorded in Deed 

Book 222, page 152 on 1128/66, York 

County 

Deed dated 3/30/51 recorded in Deed 

Book 169, page 303 on 4/3/51; and deed 

dated 8/18/51 recorded _/21/51 in 

Deed Book 174, page 166 

Deed dated 4/13/54 recorded in Deed 

Book 203, page 184 

Three, F, (974) 

Tax Map 14-25 

Tax Map 15-2.0 

Tax Map 15.33 

Tax Map 24-1.0 

Tax Map 25N-QA-2.0 

Tax Map 25-10 

Tax Map 25-10.01 

Tax Map 764.5 

Tax Map 15-20 

II (poss.) 

II (poss.) 

II (cont.) 

II (cont.) 

11 (cont.) 

11 (poss.) 

II (cont.) 

11 (cont.) 

II (cont.), n. 5 

II (cont.), n. 5 

11 (cont.), n. 5 

II (cont.), n. 5 

III (All tracts below) · 

III, n. 5 (All 

tracts•) 

11 (dates) 

II (dates) 

II (dates) 

II (dates) 

II (dates) 

II (dates) 

II (dates) 

II (dates) 

II (dates) 

II (cont.) 
612 

1376 978 FEDERAL REPORTER. 2d SERIES 

APPENDIX B-Continued 

21. Hugh White Three, H. (976) 

Tax Map 705-00--00-001 

22. T. W. HuU:hison Three, K, (979-~80) III, n. 5 (All tracts 

below) 

664 ...{) 1...{)3-008 II (poss.) 

664-{) 1-06..{) 14 II (poss.) 

664-01-06..{)19 II (poss.) 

664-01-06-018 II (poss.) 

664-{)1-06..{)17 II (poss.) 

664-01-06-007 II (poss.) 

664-01-06-008 II (poss.) 

664-01-06-023 II (poss.) 

664-{)1-06..{)16 II (poss.) 

664-01...{)6-0 15 II (poss.) 

664-{)1...{)3-002 II (poss.) 

664-01-02-003 II (poss.) 

664-0 1...{)4-002 II (poss.) 

664-{) 1-06..{)24 II (poss.) 

664-{) 1-06-013 II (poss.) 

664-00-00-022 II (poss.) 

II (dates) 

634...{)7-01-021 II (poss.) 

II (dates) 

664-00-0().;{l19 II (dates) 

664...{)1-02-002 

627-14-02-002 

664-06-06-{)25 II (dates) 

664-00-00-021 II (dates) 

23. Robert A. Fewell Three, L, (981) III (All tracts •) 

Tax Map 617-00-00-026 

Tax Map 616-00-00-{)32 

Tax Map 680-00-00-022 

Tax Map 608-00-00-024 

24. Francis M. Mack Three, M, (982) III (All tracts •) 

77 4...{)0-00-005 II (tree) 

II (farm) 

II (dates) 

020-06-06-016 

25. John S. Simpson Three, N, (983) n. 5, n. 10, II 

(poss.), III, VI 

(All tracts•) 

Tax Map 6~7-06-001 

Tax Map 600-11-02-035 

Tax Map 600-17-02...{)12 

Tax Map 627-17-02-018 

26. Robert T. 

Tax Ma8 627-17-02-016 

Three, , (984) Ill, n. 5 (All 

Simpson tracts•) 

627-17-02-019 n. 10 

II (poss.) 

VI 

~6-10-029 II (poss.) 

6~7-05-001 n. 10 

II (poss.) 

VI 

600-11-02-035 n. 10 

VI 
613 

CATAWBA I!"DIA!'I TRIBE v. STATE OF S.C. Clle u 978 F.ld ll34 f4th Clr. 199l) 

APPENDIX B-Continued 

627-17 -4)1-4)12 

627 -Ji-4}2-4)18 

627-17 -4)2-4} 16 

27. City of Rock Hill Three, Q, (987-989) 

South Carolina 

Tax Map or Parcel 

627-1S-3-4 

589--1-1-14 

62S-9--fr.5 

62S-9--5-6 

62S-17-3-10 

62S-4-1-2 

• 627-19--1-25 (W. White) 

627-19--1-25 (H. White) 

627-19--1-25 (Biggers) 

627-19--1-25 (!..aFar) 

627-19--1-25 (Albright) 

627-19--1-25 (Roddey) 

627-1S-4-ll & 13 

627-19--1-23 

627-1S-1-9 

630-1(H)3-4)10 

627-1S-4~ 

630-10-3-14 

630-10-4~ 

63(}-10-4-5 

63(}-10-4-4 

59&-7-2-2 

630-10-3-12 

63(}-1 (H)3-4)08 

630-10-3-13 

630-10-4-7 

630-10-4-3 

630-1(H)1-4)02 

62S-4-1-1 

627-19--1-23 (Friedheim) 

627-19--1-23 (Johnston) 

589--1-1-21 

627-1S-3-12 

627-17-4-10 

62&-7-1-2 

667-1-1-4 

589--1-1--4 

627-1S-2-1 

589--2&-1-1 

589--2&-2-1 & 2 

667-1-1~ 

n. 10 

II (poss.) 

VI 

n. 10 

II (poss.) 

VI 

n. 10 

II (poss.) 

VI 

1377 

III, II (cone!.) (All 

tracts') 

IV-A 

IV-G 

n. 10 

VI 

VII 

n. 10 

VI 

n. 10 

VI 

n. 10 

VI 

VII 

VII 

VII 

VII 

VII 

VII 
614 

1378 978 FEDERAL REPORTER, 2d SERIES 

APPENDIX B-Continued 

28. Elizabeth Ardrey Three, R, (99(}...991) 

Grim ball 

Tar Map or Parcel 

7 43~0--00-003 

70~25 

70~0--00--023 

70~20 

70~0--00--019 

70~0--00--018 

020--01~1~20 

29. John M. Belk Three, S, (992) 

963 acres described in 

Deed Book 53, page 403 

dated 5/12/47; recorded 

6/21147 

30. Annie F. Harris Three, T, (993) 

Tax Map 742~0-00-002 

31. William Olh•er Three, U, (994) 

Nisbet 

Tax Map 22-2 

32. Springs 

Inc. 

Mills, Three, X, (100(}...1003) 

Date of Conveyance 

12/31131 

9/20/41 

4/5/65 

6/16/88 

l/30175 

3/1/84 

10/20/65 

6/4170 

4/14/83 

1/22/81 

9/29/41 

3/15174 

9/30/66 

6/20/50 

9/27/41 

Book 

74 

105 

335 

1033 

507 

747 

343 

406 

700 

626 

105 

481 

357 

159 

105 

33. Property Owned by the Close Family 

Three, Y, (1004-1007) 

Page 

503 

106 

431 

16 

1 

170 

540 

505 

14 

499 

196 

62 

172 

290 

198 

II (tree), II (farm), 

III (All tracts•) 

II (tree fm.) 

II (farm) 

II (dates) 

III 

III 

III 

v 

II (sp. pc.), III (All 

tracts•) 

II (sp. pc.) III (All 

tracts•) 

Property which has been identified by deed book and Jiage is as follows: 

Book 

271 

308 

362 

383 

462 

521 

527 

561 

570 

Page 

147 

125 

341 

81 

483 

45 

467 

607 

874 

Date of Record 

1126/60 . 2/01163 

5/01/67 

10/29/68 

5/14173 

10114175 

3/16176 

12/16177 

5/10178 
615 

CATAWBA ISDIAN TRIBE v. STATE OF S.C. 

Book 

5i6 

585 

601 

614 

Clle u 971 F.ld 1330 c•lh Clr. 19911 

APPE:SDIX B-Continued 

Page 

231 

703 

876 

262 

Date of Record 

8110178 

1/03179 

9/07179 

5/21/80 

Property which has been described by tax map code is as follows: 

Ta:r: Map Code 

020 0101 004 

020 0102 001 

020 0404 001 

020 0406 010 

020 0406 011 

020 0408 022 

020 0408 023 

020 0408 024 

020 0408 025 

020 0408 026 

020 0408 027 

020 0408 028 

020 0408 029 

020 0408 030 

020 0408 031 

020 0408 032 

020 0419 002 

020 0419 013 

020 0419 014 

020 0420 002 

020 0424 014 

020 0429 001 

020 0429 025 

020 0429 026 

020 0429 OiO 

020 0435 062 

020 0504 008 

020 0901 003 

655 0000 001 

655 0000 003 

655 0000 031 

657 0000 001 

706 0000 001 

706 0000 012 

710 0000 002 

710 0000 005 

710 0000 006 

712 0000 001 

713 0000 059 

713 0000 103 

713 0000 164 

713 0000 165 

713 0000 181 

713 0000 191 

713 0000 200 

713 0000 214 

'113 0000 215 

713 0000 216 

714 0000 001 

715 0000 001 

717 0000 016 

730 0000 001 

13i9 
1380 

616 

978 FEDERAL REPORTER. :!d SERIES 

APPE!"DIX B-Continued 

Taz Jlap Code 

730 0000 002 

730 0000 006 

732 0000 001 

732 0000 002 

734 0000 006 

Def~ant Portion of Judgment Order 

Describing Parcel 

34. Elliott S. Close Three, Y, (1006) 

Tax Map 642~5 

Tax Map 642~34 

Tax Map 642~35 

35. Archie B. Carroll Three, Z, (1008) 

Date of Conveyance Book 

3/30/82 660 

(Tax Map 745-00-

00-001) 

1/28/52 759 

(65 ft. access right of way) 

36. W.R. Simpson Three, AA, (1009) 

600-07~5-001 

600-11~2~35 

600-01~1~12 

627-17~2~18 

627-17~2~16 

772-00-00-001 

772-00-00-002 

37. C & S National Three, BB, (1010) 

Bank 

Taz Parcel Number 

659-227 

719-15 

~1-47 

653-13 

627-20-2-3 

Page 

84 

122 

626-141, 158, 159, 176, 177 & 178 

736-092 

546-65 

598-1()-()1-001 

Section of this 

Opinion 

Addressing 

Objections 

II 

II (tree) 

II (farm) 

II (poss.) 

II (tree) 

II (farm) 

II (poss.) 

Ill, VII (All 

tracts") 

II (poss.) 

Ill 

Ill (All tracts") 

n. 10 

II (poss.) 

VI 

n. 10 

VI 

n. 10 

VI 

n. 10 

II (poss.) 

VI 

n. 10 

II (poss.) 

II (date) 

II (date) 

II (concl.), Ill (All 

tracts") 
617 

CATAWBA ISDIAN TRIBE v. STATE OF S.C. 1381 

38. MarvA. and W.T. 

McCorkle 

39. Springs Indus· 

tries, Inc. 

Date of Comoeyancc 

12/31/31 

(Tax Map 020 04 

04 010) 

9/29/41 

7/12/66 

4/24170 

7/29/iO 

8/25171) 

8/27170 

(Tax Map 020 01 

23 013) 

12/31/31 

(Tax Map Nos. 02 

06 01 52, 02 06 01 

53, 02 06 07 34) 

1929 

1929 

1929 (Cutter) 

1929 (Seital) 

1934 

1935 

1938 

1938 

1938 

1938 

1938 

1940 

1940 

1943 

1943 

1943 

1943 

1937 

1937 

1944 

1945 

1945 

1945 

1945 

1945 

1945 

1950 

1955 

1960 

1948 

1953 

Tax Map 598 04 

01 001 

Cite u 971 F.U 1334 f4•h Clr. 1991) 

APPENDIX B-Continued 

662-3-1-30 

662-3-1-31 

Three, CC, (1011) 

Tax Map 001~37-00 

Tax Map 001~37-00 

Four, A, (1024-1029) 

Book Page 

74 503 

105 196 

353 327 

402 404 

408 450 

406 500 

406 503 

74 503 

73 177 

73 178 

65 559 

65 559 

79 231 

79 481 

94 267 

94 277 

94 279 

92 303 

92 318 

101 13 

102 83 

111 263 

111 264 

111 261 

111 262 

91 147 

91 148 

115 214 

116 276 

116 277 

116 275 

116 305 

117 1 

117 162 

159 290 

211 311 

274 42 

141 85 

191 95 

1II (All tracts •) 

II (sp. pc.), lii (All 

tracts") 
1382 

Tax Map 598 04 

02 001 

Tax Map 598 11 

01 001 

Tax Map 598 22 

01 001 

Tax Map 627 20 

01 005 

618 

978 FEDERAL REPORTER. %d SERIES 

APPESDIX B-<:ontinued 

APPE!\DIX C 

The judgment of the district court is VACATED and the cause REMANDED for 

further action aot inconsistent with section III of this opinion as to the following parcels 

of land. The affidavits supporting the defendants' motions for summary judgment as to 

these parcels set forth insufficient evidence that the statements therein are based on the 

personal kno•·ledge of the aff~ant. 

Defendant 

1. Arnold F. Marshall 

2. C.H. Albright 

3. Ned M. Albright 

4. David G. 

Anderson 

Parcel 

One, Y, ~ 4, (947) Property described in 

deed dated Jan. 9, 1959 and recorded 

Jan. 17, 1959, in deed book 258 at page 

484, York County. 

Three, D, V 3 (972) 

6~5 

620-00-00-008 

Three, E, n 1, 3-8 (973) 54~70 

627-22~2~29 

59~~1-002 

59~2~1-002 

627-22~2~28 

625-12~3-004 

6~2~1-005 

Three, G (975) 

627-22-02~29 

59~2~1-001 

59~2~1-002 

627-22~2~28 

625-12~3-004 

Section of this 

Opinion Rejecting 

Other Challenge& to 

Listed Parce[S 

n. 5 (all) 

II (dates) 

II (cont.) 

II (dates) 

II (cont.) 

II (dates) 

II (dates) 

II (cont.) 

II (dates) 

II (cont.) 

II (tree) 

II (dates) 

II (dates) 

II (cont.) 

II (dates) 

II (cont.) 

II (dates) 

II (cont.) . II (dates) 

II (dates) 

II (cont.) 

3. The Tribe has often raised more than one type of lqal challence to any ch-en parcel. Because we 

have reviewed all such objections and found them to be v.ithout merit, the disuict court need llOI 

rehear those challences on remand. In the interest of clarity we shall no&e, where applicable, the 

section of this opinion wherein any other challence to such a parcel is considered and rejected. 
619 

CATAWBA INDIAN TRIBE v. STATE OF S.C. 1383 

5. F.S. Barnes, Jr. 

6. J. Max Hinson 

Ckeum F.Z4 U.W C .. hClr. 19911 

APPE:SDIX C-Continued 

600-06-07-006 

604~:H>1~11 

67(}-00..00-134 

Three, J (978) 

639-00-()().-()!!5 

Three, W (998-999) 

Tract No. 20, York County 

deed book 986, p. 339 

Tract No. 21, York County 

deed book 969, p. 200 

Tract No. 22, York County 

deed book 540, p. 129 

Tract No. 24, York County deed book 488, p. 98 

Tract No. 26, York County deed book 644, p. 72 

11 (dates) 

11 (cont.) 

11 (dates) 

n. 10 

11 (dates) 

11 (poss.) 

n. 5 n. 5 

11 (poss.) 

11 (dates) 

n. 5 

11 (poss.) 

11 (dates) 

11 (dates) 

II (cont.) 

Tract No. 28, York County deed book 529, p. II (dates) 

561 

Tract No. 30, York County deed book 467, p. II (poss.) 

466 

APPENDIX D 

The judgment of the district court is VACATED and the cause REMANDED for 

further action not inconsistent with section 1V.B. of this opinion as to the following 

parcels. 

Defendant 

1. Duke Power Co. 

Section of thi& 

Opinion Rejecting 

Other Challenges 

Parcel to Luted .Parcel' 

Two, A, (954-956) 

Summary judgment is ,·acated and remanded as tO the following tracts for that portion 

of the land that is abo•·e 570 feet above mean sea level: 

Date of Deed 

05/28/26 

07108/24 

12/09/24 

09/17/24 

09/08/24 

07/29/25 

09/22/24 

07/28/24 

09/24/24 

11/17/24 

05/03/28 

03/19/09" 

09/17/24 

11/25/24 

061??104 

12/16/25 

10/14/24 

Recordation Date 

08/30/26 

07/12/24 

12/18/24 

10/03/24 

09/17/24 

08/13/25 

10/01/24 

07/10/24 

10/01/24 

11/19/24 

05111/28 

01/07/10 

10/03/24 

12/04/24 

08/13/04 

01/15/26 

10/18/24 

4. Sec supra Appendix C n. 3. 

Book/Page 

65/146 

61/145 

62/178 

62/3 

61/283 

64/132 

54/628 

61/134 

54/623 

62/104 

711251 

291778/SO 

61/314 

62/144 

24/187-88 

66?/166 

62/36 
1384 

Date of Deed 

03/17/25 

06/05/24 

07/31/24 

07/24/25 

12/30/10 

07/31/24 

08/08/24 

09/10/24 

06/04/24 

07/08/24 

03/31/24 

03/29/24 

03/19/09 

03/19/09 

05/11/00 

05/10/32 

12/19/27 

19/01/25 

05/01/69 

09/04/68 

06/29/'iO 

09/07/11 

08/10/'i1 

04/27/64 

08/01/63 

620 

978 FEDERAL REPORTER, 2d SERIES 

APPENDIX D-Continued 

Recordation Dl!te 

03/24/25 

06/07/24 

08/09/24 

08/05/25 

01/02/ll 

08/09/24 

08/16/24 

09/17/24 

06/07/24 

07/12/24 

04/02/24 

04/02/24 

01/07/10 

01/07/10 

06/13/00 

06/01/32 

12/21/27 

12/05/25 

12/22/69 

09/19/68 

06/30170 

09/07171 

12/30171 

08/02/63 

Book/Page 

63/128 

61161 

611183 

64/137 

32/56 

54/599 

61/208 

54/616 

61/69 

61/143 

60/243 

60/244 

291773-76 

291776-78 

19/621-33 

74/540 

65/303 

65/48 

397/361 

381/379 

404/23 

425/37 

430/506 

342/415 

314/392 

The following properties were transferred by Crescent Land and Timber Corporation 

(Crescent) to \'arious grantees between July 1, 1972, and July 2. 1974: 

Date of Deed Recordation Date Book/Page 

03/05173 03/09173 458/232 

12/ll/73 02/28174 479/347 

05/28174 07/04174 486/ll3 

02/01173 02/02173 456/60 

12/ll/73 01/28174 477/575 

2. C.H. Albright 

3. T.W. Hutchison 

One, E, (861) Deed dated 1/21179; Deed 

Book 589, page 536 

Three, K, fl24 (980) Tax Map Number 54~0--()0...{)38 

APPENDIX E 

III, n. 5 

The judgment of the district court is VACATED and the cause REMANDED !or 

further action not inconsistent \\;th section IV.C. of this opinion as to the following 

parcels. · 

Defendant 

l. Bowater Corp. 

Parcel 

Three, V, (996) n 8 (278 acres :!: , Cl'l'· 

,-eyed to East Highlands Co. by dee.! 

recorded in York County Deed Book 394 at page 281) 

5. See supra Ap~ndix C n. 3. 

Section of this 

Opinion Rejecting 

Other Challenges to 

Listed Parcel~ 

III 
621 

CATAWBA INDIAN TRIBE v. STATE OF S.C. 1385 Cllooom F.U Ill< (4thCir. 19911 

APPENDIX F 

The judgment of the district court is VACATED and the cause REMANDED for 

further action not inconsistent with section IV .D. of this opinion as to the following 

parcels. 

Defendant 

I. John M. Spratt, 

Jr. 

Parcel 

One, V, Tract No. 6 (926) (Tax Map No. 

661-2) 

APPENDIX G 

Section of this 

Opinion Rejecting 

Other Challenges to Listed Parcel • Ill, n. 5 

The judgment of the district court is VACATED and the cause REMANDED for 

further action not inconsistent with footnote 7 of this opinion as to the following parcels. 

Defendant 

1. Close Family 

Parr.el 

Three, Y, (1004), parcel with Southern 

Appliances, · 

Inc. 

as grantor, recorded in deed book 418 at 

page 382, dated 5/12171. 

Three, Y, (1004), parcel 

with Paul Gibson as grantor, 

recorded in deed book 481 at page 65, 

dated 3/21174. 

Three, Y, (1006), parcels identified by 

tax map numbers: 

710 0000 003 

732 0000 003 

730 0000 009 

731 oooo· oo2 

710 0000 004 

Section of this 

Opinion Rejecting 

Other Challenges to Listed Parcel' 

II (sp. pc.) 

Ill 

II (sp. pc.) 

Ill 

II (sp. pc.) 

Ill 

II (sp. pc.) 

III 

II (sp. pc.) 

Ill 

II (sp. pc.) 

Ill 

II (sp. pc.) 

III 

The judgment of the district court is VACATED pursuant to footnote 7 of this opinion 

as to the following parcel. 

1. Close Family Three, Y, (1004), parcel 

with Curt Siefart as grantor, 

recorded in deed book 448 at page 38, 

dated 9/20172. 

APPENDIX H 

II (sp. pc.) 

Ill 

The judgment of the district court is REVERSED and the cause RE)IA .. ''DED for further 

action not inconsistent with section VIII of this opinion. The following defendants were 

6. See supra Appendix C n. 3. 

7. See supra Appendix C n. 3. 
622 

1386 978 FEDERAL REPORTER. 2d SERIES 

APPE~DIX H-Continued 

erroneously dismissed in that they claim certain parcels not released by the judgment 

orders. 

Defendant 

Parcels Remaining 

in this Case • 

1. J. Max Hinson J.A. 641, Exhibit A, Tract numbers 27, 

29 

2. William 0. Nisbet 

3. Ashe Farms 

J .A. 7i8, 53 acre tract 

J.A. 494 f. 2 

J.A. 776 U 5 through 8 

J.A. 777 f. 2 

4. C.H. Albright J.A. 731 fl7 

:Myron BATJ'S, Plaintiff-Appellant, 

v. 

TOW-MOTOR FORKLIFt' CO:MPA!"Y 

and Caterpillar Industrial, Inc., 

Defendant5-:\ppellees. 

So. 91-1511. 

Cnited States Court of Appeals, 

Fifth Circuit. 

Nov. 25, 1992. 

Rehearing and Rehearing En Bane 

Denied Dec. 23, 1992. 

Bystander brought action against fork· 

lift manufacturer to recover for injuries 

caused by forklift backing into him. The 

United States District Court for the ~orthern District of Mississippi, Glen H. Da,·idson, J ., entered judgment on jury verdict 

for manufacturer. Bystander appealed. 

The Court of Appeals, Barksdale, Circuit 

Judge, held that open and obvious danger 

of forklift in reverse precluded bystander's 

reco\·ery. 

Affirmed. 

E. Grady Jolly, Circuit Judge, specially 

concurred and filed opinion. 

Bright, Senior Circuit Judge, sitting by 

designation, ·dissented and filed opinion. 

I. Federal Courts ~776 

District court's interpretation of state 

law is re\·iewed de no\·o. 

2. Federal Courts ~390 

In deciding unsettled point of Missis· 

sippi law, Court o! Appeals is required to 

predict bow Mississippi Supreme Court 

would interpret its law; role of Court of 

Appeals is not to create or modify state 

law. 

3. Products Liability ~27 

Open and ob\·ious danger to ordinary 

user precludes reco\·ery against product 

manufacturer under Mississippi law of negligence and strict liability. 

4. Products Liability ~48 

Open and obvious danger of forklift in 

reverse precluded bystander's recO\"ery 

against manufacturer under Mississippi 

law of strict liability and negligence, regardless of whether bystander knew or 

should have known of danger. 

5. Products Liability C:048 

Bystander's alleged awareness of open 

and. ob\·ious danger of !orklift in re\·erse 

would not simply reduce recovery against 

manufacturer under Mississippi's compara· 

tive negligence standard. Miss.Code 1972, 

§ 11-7-15. 

I. Of course, bcc.ausc summary judpncnt was not pnted as to these parcels they do not appear in the 

district coun's judpncnt orders. Accordinsfy ...... mer to these parcels by their dCSCTiption in the 

materials supponincthe respective defendant's motion lor summary judcment. f.Kh reference is to 

Joint Appendix pace number and paracraph or tract number or description. as appropriate. 
623 

:2 

u 

;v.~ Q 

~0~ ~ 

* ~ 

o~l:.l ~ 

;;.<""""~ * t> ~= * c: Q<~ * 2 z~u * ,.Q 

"""" 

<Q 

0 ~ 

~ u 
DOC. HO MiliCI 110 

1887.1 8990-1908-052, pt,I 

1889.1 8990-1908-052, pt,I 

1896.1 8990-1908-052, Pt.I 

IMDIX 

CA'l'AWBA DOCUHIM'l'S 

DUI 

12/27/87 

ll/28/89 

3/28/96 

QOCUHift 

Ll'l"l''R froa A.J. 

Willard 

Ll'ft'IR to Sen. 

Teller from P.H. 

Head, Catawba Indian 

Ll'ft'IR to R.V. Belt, 

Esq. from CIA D.M. 

Browning 
DOC, 110 

1905.1 

1906.1 

IGBIICX lfO 

8990-1908-052, Pt.I 

no number 

lmU 

4/10/05 

1/23/06 

DOCYMENT 

LB'l'TER to CIA 

Francis E. Leupp 

from Dept. of Int., 

Board of Indian 

Commissioners 

LETTER to Chester 

Howe, Esq. from CIA 

F.E. Leupp 
DOC. NO AGENCY NO .!mH 

1906.2 6087-1906 3/14/06 

1907.1 8990-1908-052, Pt.I 12/20/07 

DOCUMENT 

LETTER to Chester 

Howe, Esq. from 

Acting CIA C.F. 

Larrabee 

LETTER to Sec. of 

Int. from Acting CIA 

Frank Pierce 
DOC, 10 

1908.1 

1908.2 

1908.3 

1909.1 

1909.2 

UEftCX 10 

8990-1908-052, Pt.IA 

OIA file I 35823 

OIA file I 35823 

8990-1908-052 

OIA file I 11109 

.lmD. 

1/27/09 

5/21/08 

5/28/08 

3/08/09 

5/27/09 

DOCUMENT 

LETTER and OPINION 

of Atty. Gen. A. 

Fraser Lyon to Gov. 

Ansel 

PETITION of Catawba 

Tribe to sec. of 

Int. and CIA 

LETTER to Sec. of 

Int. from Chester 

Howe 

LETTER to Sec. of 

Int. from w.w. 

Wright 

LETTER to CIA from 

w.w. Wright 
DOC. NO 

1909.3 

1909.4 

1910.1 

1911.1 

AGENCY NO 

8990-1908;41109-1909 

D-8903 

OIA file # 25331 

8990-1908-052, Pt.l 

Jmn 

6/29/09 

9/09/09 

3/25/10 

1/02/11 

DOCUMENT 

LBTTBR to W.W. 

Wright from CIA 

Valentine 

LBTTBR to CIA from 

1st Asst. Sec. Frank 

Pierce 

LETTER to CIA from 

Supt. Frank Kyselka 

LETTER to Charles L. 

Davis from Chief 

Harris 
DOC, NO 

1911.2 

AGENCY NO 

8990-1908-052, Pt.1 

lmn 

1/05/11 

DOCUMENT 

LETTER REPORT to CIA 

from Special Indian 

Agent Charles Davis 
DOC. lfO AGBNCY NO an 

1911.3 8990-1908-052, Pt.I 1/10/11 

1929.1 12492-30-011 1/09/29 

DOCUKBHT 

LBTTBR to CIA from 

Special Indian Agent 

Charles David 

LETTBR to CIA from 

Chief sam T. Blue 
DOC. 110 IQBIICX lfO lmU DOCUJIBII'l' 

1929.2 12492-1930-011, pt.I 1/25/29 LBTTBR to Chief Blue 

from Asst. CIA E.B. 

Meritt 

1930.1 12492-1930-011, Pt.I 1/06-30 S. RBS. 217 

1930.2 12492-1930-011, Pt.I 5/18/30 MEMORANDUM FOR THB 

SBCRBTARX from CIA 

Rhoads 

1932.1 12492-1930-011 2/10/32 LBTTBR to CIA Rhoads 

from Sen. Elmer 

Thomas 
DOC, HO 

1932.2 

1932.3 

1934.1 . 

1934.2 

MllfCY 10 

12492-1930-011 

12492-1930-011 

13061-1953-319 

13061-1953-319 

am 

2/16/32 

4/18/32 

4/16/34 

no date 

POCIJJIIIIT 

LBr!IR to Sen. James 

F. Byrnes from Chief 

Blue 

LlftiR to CIA Rhoads 

froa Sen. James F. 

Byrnes 

JOBBSOM-0 1HALLIY ACT 

KIHORAMDUK by Chief, 

Land Div. (no name) 
DOC, lfO AGBlfCY lfO 

1934.3 OIA 23713 (5/16/34) 

1935.1 12492-1930-011 

1935.2 12492-1930-011 

1935.3 12492-1930-011 

RU.I 

no date 

but 

passed 

at 1934 

session 

1/35 

3/35 

3/07/35 

DOCUMENT 

COlfCURRBHT 

RESOLUTIOlf 

REPORT OP THB 

CATAWBA IlfDI.IUf 

MATIOlf by F.T. 

Ritchie & Glenn S. 

Buie (Soil Erosion 

Survey, u.s. Dept. 

of Int.) 

REPORT OM THB 

CATAWBA lfATIOlf (an 

Atteapt to Justify Rehabilitation) by 

J.G. Lidell, P.O. 

Southworth 

LETTER to A. H. ·Ward 1 

Rural Rehab. Advisor 

from Supervisor of 

Field Service Paul v. Maris 
DOC. NO AGBNCY NO DATE 

1935.4 12492-1930-011 3/07/35 

1935.5 12492-1930-011 3/08/35 

1935.6 12492-1930-011 3/09/35 

1935.7 12492-1930-011 3/15/35 

DOCUMENT 

LETTER to P.O. 

Southworth from T.O. 

Flowers, State 

Financial Agent, 

Catawba Indians 

LETTER to P.O. 

Southworth from o.w. 

Watkins, Oir. 

Cooperative 

Extension Work 

LETTER to P.O. 

Southworth from CIA 

LETTER REPORT to 

P.O. Southworth from 

J.F. Cole, Asst. 

Forester 
DOc. no 

1935.8 

UIICX IQ 

12492-1930-011 

JmD 

3/18/35 

DOCUMENT 

LETTER to B.L. 

Hummel from P.O. 

Southworth 
poe. No 

1935.9 

1935.10 

AGENCY NO 

12492-1930-011 

12492-1930-011 

DATE 

3/19/35 

3/20/35 

DOCUMENT 

HBHO to CIA John 

Collier from ViceDirector Lowdermilk 

HBHO CONCERNING A 

TENTATIVE PLAN FOR 

THE CARB & 

MANAGEMENT OF THE 

CATAWBA INDIANS IN 

SOUTH CAROLINA by 

H.A. Smith 
DOC. NO AGENCY NO DATE 

1935.11 12492-1930-011 3/20/35 

1935.12 12492-1930-011 4/02/35 

1937.1 12492-1930-011 1/26/37 

1937.2 12492-1930-011, Pt.I 1/29/37 

DOCUMENT 

MEMO to Hummel, 

Armstrong, Cooley, 

Monahan, Woehlke, 

Zimmerman from P.D. 

Southworth 

LETTER to John 

Collier from R.A. 

Winston, Tech. Sec., 

Dept. of Int. 

LETTER to CIA 

Collier from Frank 

G. Speck (Univ. of 

Pennsylvania) 

LETTER to A.A. 

Grorud from CIA 
DOC, NO 

1937.3 

AQENCY NO 

no number 

.lmU 

2/37 

POCUMENT 

MEMORANDUM to the 

CIA by D'Arcy 

McNickle, Admin. 

Assistant 
DOC. NO AGENCY NO DATE 

1937.4 no number 2/03/37 

1937.5 no number 2/03/37 

1937.6 no number 3/25/37 

DOCUMENT 

LETTER to Chief Blue 

from Asst. CIA 

Zimmerman 

LETTER to J, Smith, 

State Auditor from 

Asst. Comm. 

Zimmerman 

H.R. 5938 (75th 

Congress, 1st 

Session) 
DOC. NO AGENCY NO DATE 

1937.7 12492-1930-011 4/22/37 

1937.8 12492-1930-011 5/24/37 

DOCUMENT 

LETTER to CIA 

Collier from Sen. 

James F. Byrnes 

LETTER to CIA 

Collier from Rep. 

J.P. Richards 
DOC, NO 

1937.9 

1937.10 

AGBI!CY 1!0 

12492-1930-011, pt,I 

12492-1930-011, Pt.I 

JmD 

6/04/37 

.6/29/37 

DOCUMENT 

XBMORAl!DUX to Mr. 

Chapman from Asst. comm. Zimmerman 

MEMORANDUM to Acting 

Sec. West from 

Budget Officer E.K. 

Burlew 
DOC. NO AGENCY NO ~ 

1937.11 OIA # 49269 7/31/37 

1937.12 no number 8/03/37 

1937.13 12492-1930-011 8/10/37 

1937.14 no number 8/21/37 

1937.15 12492-1930-011 11/23/37 

DOCUMENT 

LETTER to CIA 

Collier from Rep. 

J.P. Richards 

MEMORANDUM to Sec. 

from Asst. Comm. 

Zimmerman 

MEMORANDUM to Asst. 

Comm. Zimmerman from 

E.K. Burlew 

MEMORANDUM to Asst. 

Comm. Zimmerman from 

E.K. Burlew 

LETTER to J.M. 

Stewart, Dir., Land 

Division, Office of 

Indian Affairs from sen. E. Johnson 
DOC. NO 

1937.16 

1937.17 

1938.1 

1938.2 

1938.3 

AQBNCY NO 

12492-1930-011 

OIA 784 

12492-1930-011 

12492-1930-011, Pt.I 

12492-1930-011, Pt.I 

Jmn 

11/30/37 

12/20/37 

1/03/38 

1/03/38 

1/08/38 

DOCUMENT 

MEMO to Mr. Stewart 

from F.H. Deiker, 

Asst. to comm. & 

D'Arcy McNickle; 

Admin. Asst. 

LETTER Honorable 

Senator from Elbert 

Garcia 

LETTER to CIA 

Collier from Sen. 

Johnson 

MEMORANDUM to Sec. 

of Int. from CIA 

Collier 

MEMORANDUM to Sec. 

Ickes from E.K. 

Burlew 
DOC. NO AGENCY NO ~ 

1938.4 12492-1930-011, Pt.I 1/21/38 

1938.5 12492-1930-011 3/29/38 

1938.6 12492-1930-011 6/03/38 

DOCUMENT 

MEMORANDUM to Mr. 

McNickle from Joe 

Jennings, Indian 

organization 

LETTER to Sec. Ickes 

from Mrs. Henry J. 

Munnerlyn, state 

Chairman, DAR 

LETTER to CIA 

Collier from Sen. 

Dennis Chavez 
DOC. NO AGENCY NO ~ 

1938.7 12492-1930-011, Pt.I 6/09/38 

1939.1 no number 2/16/39 

• 

DOCUMENT 

LETTER REPORT to 

Rep. Will Rogers, 

Chairman, Committee 

on Indian Affairs, 

from Acting Sec. of 

Int. Burlew 

H.R. 4240 
DOC, J!!O l\GBJ!!CY J!!O ~!An 

1939.2 12492-1930-011, Pt.I 5/18/39 

1939.3 12492-1930-011, Pt.I 5/25/39 

1939.4 12492-1930-0ll 6/02/39 

DOCUMENT 

LETTER to CIA 

Collier from Sen. 

James Byrnes 

LETTER to Mrs. 

Franklin D. 

Roosevelt from Sen. 

J.E. Massey 

LETTER to Martha 

Dresher from Fred H. 

Daiker, Asst. to the 

Commissioner 
DOC. NO AGENCY NO DATE 

1939.5 12492-1930-011, Pt.I 6/08/39 

1939.6 no number 6/08/39 

1939.7 12492-1930-011, Pt.I 7/19/39 

1939.8 no number 8/11/39 

1939.9 no number 9/02/39 

DOCUMENT 

LETTER to James 

Fowles, Clerk, S.c. 

Senate, from CIA 

Collier 

LETTER to Sen. James 

F. Byrnes from CIA 

Collier 

LETTER to W. Barton 

Greenwood, Fin. 

Officer, Office of 

Indian Affairs, from 

Eleanor E.A. 

Herring, Chief, 

State Legislative 

Section 

LETTER to CIA 

Collier from Sen. 

Byrnes 

LETTER to Sen. 

Byrnes from CIA 

Collier 
DOC, NO AGENCY NO 

1939.10 12492-1930-011, Pt.I 

DATE 

10/02/39 

DOCUMENT 

MEMORANDUM to CIA 

from Nathan R. 

Mangold, Solicitor 
DOC. NO AGBifCY HO 11M! 

1939.11 no number 11/03/39 

1940.1 12492-1930-0ll,Ft.II 1/02/40 

DOCUMBHT 

MEMORANDUM to 

Zimmerman from 

Greenwood, Finance 

Officer 

MEMORANDUM to CIA 

Collier from 1st 

Asst. Sec. Burlew 
DOC. NO 

1940.2 

1940.3 

1940.4 

1940.5 

AGENCY NO 

12492-1930-0ll,Pt.II 

12492-1930-0ll,Pt.II 

12492-1930-0ll,Pt.II 

34790-1943-360,Pt.IC 

PATE 

1/04/40 

1/08/40 

1/30/40 

2/13/40 

DOCUMENT 

MEMORANDUM to 1st 

Asst. Sec. Burlew 

from Asst. comm. Zimmerman 

LETTER to Dir. , Bureau of Budget, 

from 1st Asst. Sec. 

Burlew 

LETTER to Sec. of 

Int. from Harold D. 

Smith, Dir., Bureau 

of Budget 

REPORT OF REP. 

WILLIAM R. BRADFORD 

FOR COMMITTEE 

APPOINTED PURSUANT 

TO CONCURRENT 

RESOLUTION H. 281 OF 

STATUS OF CATAWBA 

INDIANS AND WITH 

REFERENCE TO EFFORT 

TO HAVE SAID INDIANS 

MAINTAINED BY THE 

FEDERAL GOVERNMENT 
DOC, NO 

1940.6 

AOBNCY NO 

12492-1930-011, Pt.I 

JmD. 

2/24/40 

DOCUMENT 

LETTER to Rep. J.P. 

Richards from CIA 

Collier 
DOC. NO AGENCY NO MUl. 

1940.7 13297-40 4/40 

1940.8 12492-1930-0ll,Pt.II 4/15/40 

1940.9 12492-1930-0ll,Pt.II 8/14/40 

DOCUMENT 

LETTER to Sen. Elmer 

Thomas, Chairman, 

Committee on Indian 

Affairs, U.S. 

Senate, from Sec. of 

Int. Harold L. Ickes 

LETTER to Rep. Will 

Rogers, Chairman, 

Committee on Indian 

Affairs, House of 

Representatives, 

from Sec. of Int. 

Harold L. Ickes 

MEMORANDUM for Mr. 

Armstrong from 

D'Arcy McNickle, 

Indian Organization 
DOC, NO AGENCY NO DATE 

1940.10 12492-1930-011,Pt.II B/16/40 

1940.11 12492-1930-011,Pt.II 9/28/40 

1940.12 12492-1930-011,Pt.II 10/02/40 

DOCUMENT 

MEMORANDUM to 

Messrs. Greenwood & 

Zimmerman from Asst. 

Finance Officer 

LETTER to Clyde M. 

Blair, Supt., 

Cherokee Agency, 

from CIA Collier 

NEWSPAPER CLIPPING 
DOC, lfQ 

1940.13 

MINCY NO 

34790-1943-360,pt.IA 

lmH 

10/10/40 

DOCUMENT 

REPORT by Ward 

Shepard 
DOC. NO AGENCY NO DATE 

1940.14 34790-1943-360,Pt.IA 10/22/40 

1940.15 12492-1930-011,Pt.II 10/31/40 

DOCUMENT 

MEMORANDUM to Ward 

Shepard from Acting 

Dir. of Extension & 

Industry R.S. 

Bristol 

MEMORANDUM for the 

Sec. from CIA 

Collier 
DOC. NO 

1940.16 

1940.17 

1940.18 

1940.19 

AGENCY NO 

12492-1930-011,Pt.II 

12492-1930-011,Pt.II 

12492-1930-011,Pt.II 

39329-39 

PATE 

12/04/40 

12/09/40 

12/14/40 

1940? 

DOCUMENT 

LETTER to C.B. 

Baldwin, 

Administrator, Farm 

Security 

Administration, from 

CIA Collier 

LETTER to Gov. 

Maybank from CIA 

Collier 

LETTER to C.M. 

Blair, Supt. , 

Cherokee Agency, 

from CIA Collier 

MEMORANDUM OF 

INFORMATION RELATING 

TO A BILL TO PROVIDE 

FOR THE RELIEF OF 

THE CATAWBA INDIANS 

IN sc (on Interior 

stationery) 
DOC. NO 

1941.1 

1941.2 

1941.3 

AGENCY NO 

12492-1930-011, 

Pt. III 

12492-1930-0ll,Pt.II 

12492-1930-0ll,Pt.II 

.!2M~ 

1/16/41 

1/24/41 

1/17/41 

DOCUMENT 

LETTER to CIA, Attn: 

Ward Shepard, from 

Supt. C.M. Blair 

LETTER to Supt. 

C.M.Blair from Asst. 

Comm. Zimmerman 

LETTRR to CIA from 

Mrs. McConville 
DOC. NO AGENCY NO DATE 

1941.4 12492-1930-011,Pt.II 2/13/41 

1941.5 12492-1930-011,Pt.II 2/17/41 

1941.6 12492-1930-011,Pt.II 2/24/41 

DOCUMENT 

LETTER to Supt. C.M. 

Blair from CIA 

Collier 

LETTER to CIA 

Collier from Supt. 

C.M. Blair 

LETTER to Mrs. P.B. 

McConville from 

Asst. Comm. 

Zimmerman 
DOC, NO 

1941.7 

AGENCY NO 

12492-1930-011,Pt.II 

Jmn 

3/12/41 

DOCUMENT 

MEMORANDUM for the 

Commissioner from ws 

(Ward Shepard?) 
DOC. NO AGENCY NO 

1941.. 8 no number 

1941..9 12492-1930-011 

DATE 

3/17/41 

• 

4/07/41 

DOCUMENT 

MINUTES OF 

CONFERENCE BETWEEN 

CIA, REP. JAMES P. 

RICHARDS 1 AND 

REPRESENTATIVES OF 

THE STATE OF SOUTH 

CAROLINA. 

washington, D.c., 

March 17, 1941 

I,ETTER to Mr. 

Shepard from John 

Joel Culp 
DOC. NO 

1941.10 

1941.11 

1941.12 

AGENCY NO 

12492-1930-011,Pt.II 

12492-1930-011, 

Pt.III 

12492-1930-011 

DATE 

4/28/41 

4/29/41 

4/30/41 

DOCUMENT 

LETTER to Sen. J.M. 

Lyles, Chairman, 

Catawba Indian 

Committee, from CIA 

Collier 

MEMORANDUM for Rep. 

Richards from Ward 

Shepard 

LETTER to Ward 

Shepard from T.J. 

Scott, Farm Agent 
DOC. NO 

1941.13 

1941.14 

1941.15 

1941.16 

ACJBNCY NO 

12492-1930-011 

12492-1930-011, 

pt,III 

12492-1930-011, 

Pt.III 

12492-1930-011 

lmn 

5/02/41 

5/12/41 

5/27/41 

6/26/41 

DOCUMENT 

LBTTBR to FSA State 

Dir. R.F. Ko1b from 

Ward Shepard 

LBTTBR to Gov. 

Burnett R. Maybank 

from CIA Collier 

LETTBR to CIA 

Collier from J.M. 

Smith, State Auditor 

LBTTBR to J.M. 

Smith, state 

Auditor, from Ward 

Shepard 
DOC. NO AGENCY NO 

1941.17 12492-1930-011 

1941.18 12492-1930-011 

~ 

6/26/41 

6/27/41 

DOCUMENT 

LETTER to R.F. Kolb, 

State Dir. of the 

FSA, from Ward 

Shepard 

MEMORANDUM to Dr. 

McGibony from ward 

Shepard 
DOC. NO 

1941.19 

1941.20 

AGENCY NO 

12492-1930-0ll, 

Pt.III 

12492-1930-0ll 

DATB 

8/14/41 

8/25/41 

DOCUMENT 

LETTER to CIA 

Collier from J.M. 

Smith, State Auditor 

LETTER to CIA 

Collier from J.M. 

Smith, State Auditor 
poe, NO 

1941.21 

1941.22 

1941.23 

1941.24 

AGENCY NO 

no number 

12492-1930-011 

no number 

12492-1930-011 

~ 

8/28/41 

9/02/41 

9/03/41 

9/04/41 

DOCUHENT 

LETTER to J.M. 

Smith, State 

Auditor, from Asst. 

Comm. Zimmerman 

LETTER to J.M. 

Smith, State 

Auditor, from Ward 

Shepard 

LETTER to Ward 

Shepard from J.M. 

Smith, State Auditor 

TELEGRAM to Supt. 

Blair from Asst. 

Comm. Zimmerman 
DOC. NO AGENCY NO DATE 

1941.25 12492-1930-011 9/05/41 

1941.26 12492-1930-011 9/05/41 

1941.27 12492-1930-011 9/09/41 

1941.28 no number 9/11/41 

DOCUMENT 

LETTER to CIA, Attn: 

Zimmerman, from 

Supt. C.M. Blair 

LETTER to Supt. 

Blair from Ward 

Shepard 

LETTER to Ward 

Shepard from Supt. 

C.M. Blair 

LETTER to J.M. 

Smith, State 

Auditor, from Ward 

Shepard 
DOC, NO 

1941.29 

1941.30 

1941.31 

1941.32 

AGENCY NO 

no number 

12492-1930-011 

12492-1930-011 

12492-1930-011 

lmn 

9/11/41 

9/11/41 

9/11/41 

9/12/41 

DOCUMENT 

MEMORANDUM to Mr. 

Cornwall (no 

signature, cut off) 

LETTER to Ward 

Shepard from Supt. 

C.M. Blair 

LETTER REPORT to 

C.M. Blair from T.J. 

Scott, Farm Agent 

LETTER to C.M. Blair 

from Ward Shepard 
DOC. NO 

1941.33 

1941.34 

1941.35 

1941.36 

1941.37 

1941.38 

AGENCY NO 

12492-1930-011 

12492-1930-011 

12492-1930-011, 

Pt. III 

12492-1930-011 

12492-1930-011 

no number 

DATE 

9/15/41 

9/22/41 

10/09/41 

10/14/41 

11/26/41 

12/16/41 

DOCUMENT 

LETTER to Dr. James 

A. Haynes, Sec. & state Health 

Officer, from J.R. 

McGibony, Dir. of 

Health 

LETTER to Supt. C.M. 

Blair from Ward 

Shepard 

MEMORANDUM by Ward 

Shepard 

TELEGRAM to J.M. 

Smith, State 

Auditor, from Asst. 

Comrn. Zimmerman 

LETTER to Mr. Hiram 

Q. George from Ward 

Shepard 

MEMO to Ward Shepard 

from Bryant H. 

Davis, Dept. of 

Agriculture 
DOC. NO AGENCY NO 

1941.39 no numbers 

.!2M~ 

1941 

DOCUMENT 

MEMORANDUM OF 

UNDERSTANDING 

(various drafts) 
ROC· 10 UIIQX 10 RUI. OOCUMEHT 
DOC. NO 

1942.1 

1942.2 

AGENCY NO 

12492-1930-011, 

Pt. III 

12492-1930-011, 

Pt.III 

.lmn 

1942 

1/17/42 

DOCUMENT 

MEMORANDUM to CIA 

from Nathan R. 

Margold, Dept. of 

Int. Solicitor 

LETTER to J.M. 

Smith, State 

Auditor, from Asst. 

Comm. Zimmerman 
DOC. NO AQINCX lfO DAn DOCUXBJ!T 

1942.3 12492-1930-011 3/03/42 LITTER to Rep. James 

P. Richards from CIA 

Collier 

1942.4 12492-1930-011 3/06/42 LETTER to Rep. J.P. 

Richards from Sen. 

J.M. Lyles 

1942.5 12492-1930-011 3/06/42 LBTTBR to CIA 

Collier from Sen. 

J.M. Lyles 

1942.6 12492-1930-011 3/09/42 LITTER to CIA 

Collier from Rep. 

J.P. Richards 
POC· 110 

1942.7 

1942.8 

1942.9 

1942.10 

1942.11 

1942.12 

1942.13 

UIICX 110 

12492-1930-011 

12492-1930-011 

12492-1930-011 

12492-1930-011 

no nullber 

12492-1930-011 

12492-1930-011 

DUI 

3/12/42 

3/13/42 

3/14/42 

3/16/42 

3/30/42 

l/31/42 

4/03/42 

DOCUMJII'l' 

TBLIGIAM to CIA from 

J.M. Smith, State 

Auditor 

LITTBR to Rep. J.P. 

Richards from CIA 

Collier 

LITTIR to CIA 

Collier from Rep. 

J.P. Richards 

LITTBR to J.M. 

Smith, State 

Auditor, from CIA 

Collier 

LITTBR to Ward 

Shepard from Chief 

Robert L. Harris 

LITTBR to Ward 

Shepard from Mrs. 

Moore 

LBTTBR to R.F. Kolb, 

State FSA Dir., from 

Julian Brown, Asst. 

Regional Dir. in 

charge of RR 
DOC, J:10 AQEHCX J:10 au DOCUMJI!T 

1942.14 12492-1930-011 4/09/42 LBTTER to Ward 

Shepard from R.F. 

Kolb 

1942.15 12492-1930-011 4/21/42 TELBGRAM to CIA 

Collier from John 

Thompson, Indian 

living on Redbanks 

Farm 

1942.16 ,; 12492-1930-011 4/21/42 TELEGRAM to CIA 

Collier from James 

E. Chavis, Sec., 

General Council of 

Indians, Robeson Co. 

1942.17 12492-1930-011 4/22/42 LETTER to James 

Chavis, Sec., 

General Council of 

Indians, from CIA 

Collier 

1942.18 12492-1930-011 4/25/42 LBTTER to R.F. Kolb, 

State FSA Dir. , from 

Ward Shepard 
agg. 1m IQIJICX lfg au DOCUHIIIT 

1942.19 12492-1930-011 4/25/42 LBTTBR to Chief 

Robert L. Harris 

from Ward Shepard 

1942.20 12492-1930-011, 4/24/42 LBTTBR to Mrs. D.B. 

pt. III Moore from Ward 

Shepard 
DOC, NO 

1943.1 

1943.2 

1943.3 

1943.4 

1943.5 

AGENCY NO 

no number 

11273-1959-077, Ace. 

67-A-721-103 

33851-43 

no number 

no number 

.!mn 

4/17/43 

7/01/43 

10/02/43 

10/22/43 

10/22/43 

DOCUMENT 

SECTION 11 OF ACT 

NO, 212 OF THE ACTS 

OF THE GENERAL 

ASSEMBLY OF SOUTH 

CAROLINA, 1943 

CATAWBA TRIAL ROLL 

LETTER to Asst. comm. Zimmerman from 

Supt. C.M. Blair 

LETTER to J.M. 

Smith, State 

Auditor, from Supt. 

C.M. Blair 

MEMORANDUM to CIA 

from Fowler Harper, 

Solicitor, Dept. of 

Int. 
DOQ.,_,J!Q A!JBNCY NO lmH. DOCUMENT 

1943.7 34790-1943-360,Pt.IC 11/03/43 MBHORANDUM OJ' 

UNDERSTANDING 

(executed copy) 

1943.8 45012 ll/08/43 LBTTBR to Asst. 

Comm. Zimmerman from 

Supt. C.M. Blair 

1943.9 43800-43 11/24/43 LBTTBR to Supt. C.M. 

Blair from Asst. 

Comm. Zimmerman 
poe. 10 

l!t43 .10 

1943.11 

1943.12 

1944.1 

UIICX 10 

no nUIIber 

34790-1943-360,pt.IA 

34790-1943-360,pt,IA 

34790-1943-360,pt,IA 

.~lAD 

12/11/43 

12/29/43 

12/29/43 

1/01/44 

DOCUMENT 

LBTTBR to Asst. 

Comm. Zimmerman from 

Supt. c.M. Blair and 

concurred in by A.C. 

Cooley, Director of 

Extension & Industry & Joe Jennings, 

Supt. of Indian 

Schools 

TBLBPHONB 

CONVBRSATION between 

A.C. Cooley & Clyde 

M. Blair, Supt. of 

Cherokee Agency 

TBLBPHONE 

CONVERSATION between 

A.C. Cooley, Dir. of 

Extension, Office of 

Indian Affairs, & 

James M. smith, 

State Auditor 

LONG DISTANCB 

TBLBPHONB 

CONVBRSATION between 

Clyde Blair, Supt. 

Cherokee, N.C. 

Indian Agency, and 

A.C. Cooley, Dir. of 

Extension, Chicago 

Office 
DOC, NO 

1944.2 

1944.3 

1944.4 

1944.5 

1944.6 

AGENCY NO 

no nwnber 

no number 

no nwnber 

no number 

34790-1943-360,Pt.IA 

DATE 

1/05/44 

2/02/44 

2/24/44 

~/13/44 

6/30/44 

DOCUMENT 

LETTER to Asst. 

Comm. Zimmerman from 

Supt. C.M. Blair 

LETTER to Supt. 

Clyde M. Blair from 

Asst. Comm. 

Zimmerman 

REPORT OF LAND 

CAPABILITIES AND 

USE, CATAWBA INDIAN 

RESERVATION, SOUTH 

CAROLINA 

LETTER to Supt. C.M. 

Blair from Asst. 

Comm. Zimmerman 

CONSTITUTION AND BYLAWS OF THE CATAWBA 

INDIAN TRIBE OF 

SOUTH CAROLINA 
ooc. no 

1944.7 

1944.8 

1944.9 

MBH9X NO 

34790-1943-360,Ft.IA 

Acct. 67-A-721 

Termination, File 

064 council Acts 

34790-1943-360,Pt.IA 

an 

6/30/44 

7/01/44 

7/03/44 

DOCUUI!T 

LITTER to C.M. Blair 

from Asst. sec. oscar L. Chapman 

MINUTBS OP MBBTING 

OP THE CATAWBA 

INDIAN COUNCIL, ROCK 

HILL, S.C. 

LETTER to Asst. 

Comm. Zimmerman from 

Supt. C.M. Blair 
DOC! 10 

1944.10 

1944.11 

1944.12 

1944.13 

ICIIJICX 10 

34790-1943-360,pt.IA 

20824-44 

28167-44 

28167-44 

DID 

7/10/44 

7/14/44 

8/19/44 

8/28/44 

DOCUJIIU 

LBrriR to C.M. Blair 

troa Asst. co ... Zi-eraan 

LBrriR to Asst. co ... zi .. eraan from 

Supt. C.M. Blair 

LITTIR to C.M. Blair 

fro• Asst. co ... Zimmeraan 

LITTIR to C.M. Blair 

from Fred H. Daiker, 

tor the Coaaissioner 
DOC, NO 

1945.1 

1945.2 

1945.3 

AtJBMCX NO 

Ace. 67-A-721 

Termination, 064 

Council Acts 

Ace. 67-A-721 

Termination, 064 

Council Acts 

no number 

au 

2/05/45 

3/24/45 

4/05/45 

DOCUMIIfT 

TRIBAL COUNCIL 

RBSOLUTIOM 

RBSOLUTIOlf 

LBTTBR to Supt. C.M. 

Blair from R.B. 

Hildebrand, attorney 

at law 
DOC, 10 

1945.4 

1945.5 

1945.6 

1945.7 

1945.8 

1945.9 

MDCX 10 

no nUIIber 

34790-1943, pt,ID 

455-47-43, 23713-34, 

71328-08-312 

45547-43, 23713-34, 

71328-08-312 

455-47-43, 23713-34, 

71328-080312 

no number 

.DID 

4/11/45 

9/13/45 

10/06/45 

10/10/45 

10/31/45 

1945? 

DOCUJWI'l' 

LBTTBR to CIA from 

Supt. C.M. Blair 

LBTTBR to James 

Smith, State 

Auditor, from Asst. 

Comm. Zimmerman 

TITLB TO RBAL ESTATE 

LBTTBR to Joe 

Jenninqs, Actinq Supt. , Cherokee 

Aqency, from R. b. 

Hildebrand 

LBTTBR to Harry 

Critchfield, Dir. of 

Land, from Joe 

Jenninqs, Actinq 

Supt. , Cherokee 

Indian Aqency 

PROCLAMATION by Sec. 

of the Interior 
DOC, NO 

1946.1 

1946.2 

1946.3 

1946.4 

1946.5 

1946.6 

1946.7 

AGENCY NO 

no number 

Ace. 67-A-721 

Termination, 064 

Council Acts 

Ace. 67-A-721 

Termination, 064 

Council Acts 

Ace. 67-A-721 

Termination, 064 

Council Acts 

Ace. 67-A-721 

Termination, 064 

Council Acts 

Ace. 67-A-721 

Termination, 064 

Council Acts 

no number 

.lmn 

1/23/46 

2/06/46 

2/06/46 

2/06/46 

5/25/46 

5/25/46 

9/30/46 

DOCUMENT 

OFFICE MEMORANDUM to 

Mr. Critchfield, 

Welfare Div., from 

Fred H. Daiker, Dir. 

of Welfare 

MINUTES OF GENERAL 

TRIBAL COUNCIL 

MEETING 

RESOLUTION 

RESOLUTION OF 

GENERAL COUNCIL 

MINUTES OF CATAWBA 

INDIAN TRIBAL 

MEETING 

RESOLUTION OF 

GENERAL COUNCIL 

LETTER to Supt. Joe 

Jennings from H.M. 

Critchfield, Dir. of 

Lands 
DOC. NO 

1946.8 

1946.9 

1946.10 

1947.1 

AGENCY NO 

Ace. 67-A-721 

Termination, 064 

Council Acts 

Ace. 67-A-721 

Termination, 064 

Council Acts 

Ace. 67-A-721 

Termination, 064 

Council Acts 

Ace. 67-A-721 

Termination, 061 

Negotiations 

!2bn 

11/21/46 

11/30/46 

11/30/46 

3/04/47 

DOCUMENT 

MINUTES OF EXECUTIVE 

COMMITTEE MEETING 

MINUTES, SPECIAL 

SESSION, GENERAL 

TRIBAL MEETING 

RESOLUTION 

LETTER to Chief 

Raymond Harris from 

Supt. Joe Jennings 
DOC, HO 

1947.2 

1947.3 

1948.1 

1948.2 

MQCY HO 

no nWiber 

Ace. 67-A-721 

Teraination, 064 

Council Acts 

Ace. 67-A-721 

Teraination, 064 

Council Acts 

Ace. 67-A-721 

Teraination, 0.64 

Council Acts 

DD 

4/15/47 

8/02/47 

1/10/48 

1/10/48 

DOCQMBI!T 

HBWSPAPBR ARTICLB - "Catawbas Face 

Brighter Days" 

MIHUTBS 0~ TRIBAL 

COUNCIL MBBTING 

MIHUTBS 0~ TRIBAL 

COUNCIL MBBTING 

HAHDWRITTBH NOTBS of 

Council Meeting (on 

Dept. of Interior 

letterhead) 
ooc. lfQ 

1948.3 

1948.4 

1948.5 

1948.6 

1948.7 

AGBifCX lfO 

Ace. 67-A-721 

Termination, 064 

Council Acts 

no number 

Ace. 67-A-721 

Termination, 064 

Council Acts 

Ace. 67-A-721 

Termination, 064 

council Acts 

Ace. 67-A-721 

Termination, 064 

Council Acts 

JmU 

3/06/48 

4/06/48 

5/06/48 

5/29/48 

7/03/48 

OOCUJIBI!T 

BPBCIAL TRIBAL 

COUifCIL IIBBTIIfG 

LBTTBR to Miss Erma 

Hicks, OIA, from 

Supt. Joe Jennings 

BPBCIAL TRIBAL 

COUIICIL IIBBTIIfG 

LBTTBR to Supt. Joe 

Jennings from Royal 

B. Hasrick, 

Corresponding Sec., 

National Congress of 

American Indians 

MIIIUTBB OP IIBBTIIfG 

OP CATAWBA TRIBAL 

COUifCIL 
DOC, HO 

1948.8 

1949.1 

1949.2 

1949.3 

1949.4 

HIMCX 110 

Ace. 67-A-721 

Teraination, 067 

Business co .. ittee 

Minutes 

Ace. 67-A-721 

Teraination, 064 

Council Acts 

Ace. 67-A-721 

Teraination, File - Voting 

Ace. 67-A-721 

Teraination, File - Letters Answered 

Ace. 67-A-721 

Teraination, File - Letters Answered 

JIID 

11/18/48 

1/01/49 

3/07/49 

5/28/49 

6/16/49 

DOCQUII'f 

MI~BS OP BXBCUTIVB 

COMMITTBB MBBTING 

RIIGULAR JANUARY 

MBB'l'ING OP THB 

CA'l'AWBA 'l'RIBAL 

GBIIBDL COUNCIL 

LIST 

LBTTBR to the 

Governor of s.c. froa Mrs. Daisy 

Dennis 

LB'l"l'BR to Mrs. Daisy 

Dennis from W.O. 

Suiter, Extension 

Agent 
DOC, NO 

1949.5 

1949.6 

1949.7 

1950.1 

1950.2 

1050.3 

ACJII!CX 1!0 

Ace. 67-A-721 

Termination, 064 

Council Acts 

Ace. 67-A-721 

Termination, 064 

Council Acts 

Ace. 67-A-721 

Termination, 064 

Council Acts 

Ace. 67-A-721 

Termination, 061 

l!eqotiations 

Ace. 67-A-721 

Termination, 064 

Council Acts 

Ace. 67-A-721 

Termination, 064 

Council Acts 

~!an 

6/29/49 

7/02/49 

1949? 

1/10/50 

3/20/50 

3/26/50 

DOCtlJIII!T 

ACCOUI!TII!G 

MINUTES OP RIGULAR 

JULY MIITII!G OP 

GII!IRAL COUNCIL 

STATIMII!T OP CATAWBA 

PUI!DS 

MII!UTIS OP EXECUTIVE 

COMMITTII MIITING 

MINUTES OP CALLED 

MIITII!G CATAWBA 

TRIBAL COUNCIL 

MINUTES OP CALLED 

MEETING Gil!, CATAWBA 

TRIBAL COUNCIL 
DOC. 110 

1950.4 

1950-5 

1950.6 

1950.7 

AGENCY NO 

Ace. 67-A-721 

Termination, 064 

council Acts 

no number 

no number 

19824-50 

~ 

7/01/50 

10/15/50 

11/13/50 

l.:l/16/50 

DOCUMENT 

MINUTES CATAWBA 

TRIBAL COUNCIL 

MEETING 

LETTER to Chief, 

BIA, from Miss 

Kathleen Lewis 

MEMORANDUM to Mr. 

McNickle, Tribal 

Relations, from E.G. 

Hutchinson, Chief, 

Branch of Land 

LETTER to Miss 

Kathleen Lewis from 

D'Arcy McNickle, 

Chief, Branch of 

Tribal Relations 
DOC. 110 

1951.1 

1951.2 

1951.3 

1951.4 

AGBIICY 110 

Ace. 67-A-721 

Teraination, File - Letters answered 

Ace. 67-A-721 

Teraination, 064 

Council Acta 

Ace. 67-A-721 

Teraination, 064 

Council Acta 

Ace. 67-A-721 

Teraination, 064 

Council Acta 

au 

2/09/51 

7/07/51 

7/15/51 

12/01/51 

DOCUMEifT 

LETTER to Mr. Suiter 

from Mrs. James 

Douqlas Nisbet 

MIIIUTES OP REGULAR 

MEETING OP TRIBAL 

COUNCIL 

MIIIUTES OP JULY 

COUNCIL MEETING 

EXECUTIVE COMMITTEE 

MINUTES 
DOC. NO 

1952.1 

1952.2 

1952.3 

1952.4 

AGENCY NO 

Ace. 67-A-721 

Termination, 064 

Council Acts 

Ace. 67-A-721 

Termination, 064 

Council Acts 

no number 

Ace. 67-A-721 

Termination, 064 

Council Acts 

~ 

1/19/52 

2/16/52 

7/01/52 

7/05/52 

DOCUMENT 

MINUTES OF TRIBAL 

MEETING 

MINUTES OF TRIBAL 

COUNCIL MEETING 

HOUSE RESOLUTION 698 

COUNCIL MINUTES 
DOC, NO 

1952.5 

1952.6 

1953.1 

1953.2 

1953.3 

1953.4 

AGENCY NO 

Ace. 67-A-721 

Termination, 061 

Negotiations 

Ace. 67-A-721-138, 

067 Business 

Committee Minutes 

Ace. 67-A-721 

Termination, 064 

Council Acts 

Ace. 67-A-721 

Termination, 064 

Council Acts 

Ace. 67-A-721 

Termination, 064 

Council Acts 

Ace. 67-A-721, File 

-Letters Answered 

.I2MI 

8/02/52 

12/06/52 

3/07/53 

8/30/53 

"8/31/53 

12/24/53 

DOCUMENT 

EXECUTIVE COMMITTEE 

MINUTES 

EXECUTIVE COMMITTEE 

MINUTES 

MINUTES OF GENERAL 

COUNCIL MEETING 

COUNCIL MINUTES 

RESOLUTION, GENERAL 

TRIBAL COUNCJ;L 

LETTER to Mr. W. H. 

Spencer from Chief 

E.D. George 
DOC, 110 

1954.1 

1954 I 2 

1955.1 

1956.1 

MIHCI 10 

Ace. 67•A-721 

Teraination, 064 

council Acta 

no nWiber 

Ace, 67-A-721-138, 

130 Catawba 

Withdrawal Proqraa 

Ace. 67-A-721 

Teraination, 003 

Miscellaneous 

au 

7/03/54 

9/20/54 

12/31/55 

3/15/56 

DOCQHBJ!'l' 

HIIIUTBS 1 CATAWBA 

TRIBAL COUIICIL 

RBPORT WITH RBSPBCT 

TO THB HOUSB 

RBSOLUTION 

AUTHORIZING THB 

COHHITTBB ON 

IJ!'l'BRIOR ' INSULAR 

UI'AIRS TO CONDUCT 

AN IHVBSTIGATION OJ' 

THB BIA 

RBVISBD SUMMARY 

STATBHBJ!'l' OJ' 

WITHDRAWAL 

LBTTBR to Chief John 

Idle Sanders from 

Andrew Wilson 

Lathem, Soil 

Conservationist 
DOC, lfQ 

1956.2 

MBHCX HO 

Ace. 67-A-721-138, 

130 Catawba 

Withdrawal 

an 

3/21/56-

3/31/56 

DOCYMEI!T 

PIELD TRIP REPORT, 

CATAWBA RESERVATIOH, 

SOUTH CAROLinA by 

Georqe E. Hendrix 
DOC, 10 

1956.3 

1956.4 

1956.5 

MIICX 10 

34790-43, 12492-30, 

13061-53 

Ace. 67-A-721 

Ter.ination, 064 

Council Acts 

Ace. 67-A-721 

Teraination, 064 

Council Acts 

UD 

5/10/56 

6/13/56 

6/23/56 

DQCUHBI!'l' 

RIPOR~ to Acting 

Chief, Program 

Coordination Staff, 

from F.G. 

Hutchinson, Chief, 

Branch of Realty 

LITTER to Rep. J.P. 

Richards from CIA 

Glenn L. Emmons 

MIHOTBS OP SPECIAL ~RIBAL MBB~IHG 
DOC. ItO Ulmli 112 am 12Q!;:llJIIU 

1956.6 Ace. 67-A-721 6/25/56 PBTITIOR 

Termination, 064 

Council Acts 

1956.7 62-A-523-9, 5812- 6/28/56, H,Jl, 12027 & JlBPOJlT 

1956-375 7/18/56 

1956.8 Ace. 67-A-721 7/07/56 MINUTES OP TRIBAL 

Termination, 064 COUNCIL IIBBTIRG 

council Acts 

1956.9 Ace. 67-A-721 .7/23/56 MBMOJlARDUM TO FILES 

Termination, 064 from Supt., Cherokee 

Council Acts Agency, Richard D. 

Butts 
DOC. NO 

1956.10 

1956.11 

1956.12 

1956.13 

1956.14 

1956.15 

AGENCY NO 

34790-43, 12492-30, 

13061-33-319 

45547-43, 23713-34, 

71328-08-312 

13061-53, Realty -

Requirements 

Ace. 67-A-721 

Termination, 064 

Council Acts 

no number 

no number 

DATE 

7/27/56 

7/31/56 

8/22/56 

9/15/56 

'9/17/56 

9/17/56 

DOCUMENT 

LETTER to Supt. 

Richard D. Butts 

from M.H. Derdeyn 

for Chief, Branch of 

Realty 

LETTER to CIA from 

Supt. Richard D. 

Butts 

LETTER to Supt. 

Richard D. Butts 

from F.G. 

Hutchinson, Chief, 

Branch of Realty 

MINUTES OF TRIBAL 

COUNCIL MEETING 

CERTIFICATE OF 

ELECTION 

OFFICE MEMORANDUM to 

files from Supt. 
ROC· 10 

1956.16 

1956.17 

1957.1 

MlllqX 10 

no n\Uiber 

no nullber 

13061-1953-319 

an 

9/21/56 

9/21/56 

1/24/57 

DOCYMENT 

PUBLIC LAW 86-322; 

73 Stat. 5112 

LETTER to CIA from 

Supt. Butts 

LETTER to Sen. Olin 

o. Johnson from CIA 

Emmons 
DOC, NO 

1957.2 

1957.3 

1957.4 

1957.5 

.1\GBNCY NO 

Ace. 67-A-721 

Termination, 064 

Council Acts 

Ace. 67-A-721-

F-57-1042-9 

Ace. 67-A-721, 310 

Land Sales 

I2MI 

3/05/57 

5/16/57 

6/21/57 

6/26/57 

DOCUMENT 

H.R. 676 

REVIEWING 

.I\PPR.I\ISER1 S 

STATEMENT by W.L. 

Jenkins 

LETTER to Dr. Ray. 

H. Vanderhook Asst. 

Area Medical Dir., 

Indian Health Area 

Office, Oklahoma 

City, from Acting 

Commission H. Rex ~e 

RESOLUTION of 

Catawba Tribal 

General Council 
DOC. NO 

1957.6 

1957.7 

1957.8 

1957.9 

1957.10 

AGENCY NO 

Ace. 67-A-721, 310 

Land Sales 

Ace. 67-A-721, 310 

Land Sale 

Ace. 67-A-721 

Termination, 064 

Council Acts 

Ace. 67-A-721, 310 

Land Sales 

24316-46-339 

DATE 

7/01/57 

8/17/57 

9/02/57 

9/12/67 

9/21/57 

DOCUMENT 

LETTER to T.M. Reid, 

Asst. Comm., BIA, 

from Supt. Richard 

D. Butts 

LETTER to Supt. 

Richard D. Butts 

from W.M. Kennedy, 

city Manager 

NEWSPAPER ARTICLES 

from Eveninq Herald 

QUIT CLAIM DEED 

LETTER to 

Commissioner Emmons, 

BIA, from Chief Sam 

Blue 
DOC, HO 

1957 I 11 

1958.1 

AQBNCX NO 

Ace. 67-A-721-138, 

File 130 catawba 

Withdrawal 

Ace. 67-A-721 

Termination, 064 

council Acts 

~ 

12/20/57 

1/18/58 

DOCUMENT 

MINUTES of Public 

Meeting held in. Rock 

Hill on 12/17/57 by 

Supt. Richard D. 

Butts 

RESOLUTION passed by 

the Executive 

Committee 
DOC. NO 

1958.2 

1958.3 

1958.4 

AGENCY NO 

Ace. 67-A-721 

Termination, 064 

Council Acts 

no number 

67-A-721-138, File 

130 Catawba 

Withdrawal 

DATE 

1/20/58 

2/06/58 

3/27/58 

DOCUMENT 

LETTER to 

Commissioner, BIA, 

from Supt. Richard 

D. Butts 

NEWSPAPER ARTICLE -

Asheville Citizen 

H. 2482 - A 

CONCURRENT 

RESOLUTION 
DOC, NO 

1958.5 

1958.6 

1958.7 

1958.8 

AGENCY NO 

Ace. 67-A-721 

Termination, 064 

Council Acts 

Ace. 67-A-721 

Termination, 064 

Council Acts 

Ace. 67-A-721 

Termination, 064 

Council Acts 

67-A-721-138, File 

130 Catawba 

Withdrawal 

DATE 

3/28/58 

3/31/58 

6/12/58 

6/13/58 

DOCUMENT 

NEWSPAPER ARTICLE - Evening Herald 

MINUTES OF TRIBAL 

COUNCIL MEETING 

LETTER to all 

members of the 

Tribal Executive 

Committee from Supt. 

Richard D. Butts 

LETTER to Rep. 

Robert w. Hemphill 

from Comm. Emmons 
DOC. NO MINCY If() 1mB DOCUMENT 

1958.9 Ace. 67-A-721 7/07/58 RESOLUTION of 

Termination, 064 Catawba General 

Council Acts Tribal Council 

(unsigned & not 

certified) 

1958.10 Ace. 67-A-721 7/19/58 MINUTES OP GBNBRAL 

Termination, 064 TRIBAL COUNCIL 

Council Acts KElTING 
DOC, NO 

1958.11 

AGENCY NO 

67-A-721-138, File 

130 Catawba 

Withdrawal 

.!2M! 

8/58 

DOCUMENT 

REPORT ON THE 

CATAWBA XNDXANS OF 

SOUTH CAROLXNA 
DOC, 1!0 

1958.12 

1958.13 

1958.14 

AGENCY NO 

Ace. 67-A-721 

Termination, 067 

Business Committee 

Minutes 

67-A-721-138, File 

130 Catawba 

Withdrawal 

67-A-721-138, File 

130 Catawba 

Withdrawal 

lmn 

8/04/58 

8/04/58 

8/22/58 

DOCUMENT 

MEMORANDUM to Supt. 

from Andrew L. 

Lathem 

OFFXCE MEMORANDUM to 

files from Supt. 

Butts 

LETTER to Rep. 

Hemphill from H. Rex 

Lee, Acting Comm. 
DOC. NO 

1958.15 

AGENCY NO 

Ace. 67-A-721 

Termination, 064 

Council Acts 

DATE 

8/30/58 

DOCUMENT 

MXNUTES OF SPECXAL 

TRXBAL COUNCXL 

MEETXNG 
DOC. NO AGENCY NO DATE 

1958.16 67-A-721-138, File 9/03/58 

130 Catawba 

Withdrawal 

DOCUMENT 

INTER-OFFICE 

TRANSMITTAL to 

Comm., BIA, from 

Supt. Butts 
DOC, HO 

1958.17 

1958.18 

1958.19 

1958.20 

AGENCY HO 

Ace. 67-A-721 

Termination, 067 

Business Committee 

Minutes 

Ace. 67-A-721 

Termination, 065 

Catawba Elections 

Ace. 67-A-721 

Termination, 065 

catawba Elections 

no number 

Imn 

9/03/58 

10/14/58 

10/14/58 

10/21/58 

DOCUMENT 

LETTER to Comm., 

BIA, from Supt. 

Butts 

LETTER to Comm. , 

BIA, from Supt. 

Butts 

MEMORANDUM to all 

members of the 

Catawba Tribal 

Executive Committee 

from Supt. Butts 

TRANSCRIPT - State 

and Federal Pow-Wow 
DOC. NO 

1958.21 

1958.22 

AGENCY NO 

no number 

67-A-721-138, File 

130 Catawba 

Withdrawal 

DATE 

10/22/58 

10/31/58 

DOCUMENT 

NEWSPAPER ARTICLE 

REPORT to Chief, 

Branch of Tribal 

Programs, from 

Raymond H. Bitney, 

Program Officer 
DOC, NO 

1958.23 

1959.1 

AGENCY NO 

no number 

Ace. 67-A-721 

Termination, 064 

Council Acts 

DATE 

1958? 

1/03/59 

DOCUMENT 

REPORT OF SPECIAL 

COMMITTEE ON THE 

CATAWBA INDIAN 

PROBLEM TO THE 

GENERAL ASSEMBLY 

MINUTES of General 

Tribal Council 

Meeting 
DOC, NO 

1959.2 

1959.3 

1959.4 

A!JB)!CY NO 

no number 

no number 

Ace. 67-A-721 

Termination, 064 

Council Acts 

.lmD. 

1/03/59 

1/05/59 

1/06/59 

DOCUMENT 

RESOLUTION 

NEWSPAPER ARTICLE - Evening Herald 

NOTES by Supt. Butts 

of telephone 

conversation 

w;samuel Beck of 

1/3/59 
DOC. NO 

1959.5 

1959.6 

1959.7 

1959.8 

AGENCY NO 

Ace. 67-A-721 

Termination, 064 

Council Acts 

Ace. 67-A-721 

Termination, 064 

Council Acts 

Ace. 67-A-721 

Termination, 064 

Council Acts 

no number 

.lm.H 

1/07/59 

1/10/59 

1/15/59 

1/16/59 

DOCUMENT 

NOTES by Supt. Butts 

of telephone 

conversation 

wjGarfield Harris, 

Sec.-Treas. & Albert 

sanders, Chief 

NOTES by Supt. Butts 

of telephone 

conversation 

wjDouglas Harris, 

member of catawba 

Tribe 

LETTER to 

Commissioner, BIA, 

from Supt. Butts 

NEWSPAPER ARTICLE - Evening Herald 
DOC. NO 

1959.9 

1959.10 

AGENCY NO 

no number 

Ace. 67-A-721-103, 

1017-1959-013 

lmn 

1/21/59 

1/26/59 

DOCUMENT 

LETTER to Rep. 

Wilbur G. Grant & 

Rep. L.c. Wright 

from Robert w. 

Hemphill 

LETTER to 

Commissioner, BIA, 

from Supt. Butts 
DOC. NO 

1959.11 

1959.12 

1959.13 

AGENCY NO 

no number 

Ace. 67-A-721-103, 

1017-1959-0lJ 

no number 

DATE 

1/26/59 

1/01/59-

1/24/59 

2/05/59 

DOCUMENT 

LETTER to H. Rex Lee 

from Rep. Robert w. 

Hemphill 

MEMORANDUM to Chief, 

Branch of Tribal 

Programs, from 

Raymond H. Bitney, 

Program Officer 

LETTER to Raymond 

Bitney from Douglas 

Summers Brown (Mrs. 

H. Dockery Brown, 

Jr.) (author of 

history of the 

Catawbas published 

by Univ. of S.C. 

Press 
DOC. NO 

1959.14 

J.959 .15 

1959.16 

AGENCY NO 

Ace. 67-A-721 

Termination, 023 

Proposed Legislation 

no number 

Ace. 67-A-721 

Termination, 064 

Council Acts 

DATE 

2/09/59 

3/06/59 

3/10/59 

DOCUMENT 

LETTER to Supt. 

Butts from Assoc. 

Comm. H. Rex Lee 

LETTER to Asst. Sec. 

of Interior Roger 

Ernst from Rep. 

Hemphill 

PETITION 
DOC. lfO J,GBNCY NO 1mD DOCUMENT 

1959.17 Ace. 67-A-721 3/l6/59 NOTES by Supt. Butts 

Termination, 064 of telephone 

Council Acts conversation w;sam 

Beck 

1959.18 Ace. 67-A-721 3/21/59 MINUTES of Special 

Termination, 064 Tribal Council 

Council Acts meeting 

1959.19 Ace. 67-A-721 3/28/59 MINUTES of Special 

Termination, 064 Tribal Council 

Council Acts meeting 
DOC. NO 

1959.20 

AGENCY NO 

Ace. 67-A-721 

Termination, 064 

Council Acts 

l!lml. 

3/28/59 

DOCUMENT 

MrNUTES of Special 

Meeting of the 

Catawba Council by 

Andrew w. Lathem, 

Asst. to Supt. 
DOC. NO 

1959.21 

1959.22 

AGENCY NO 

Ace. 67-A-721-103, 

1017-1959-013 

Ace. 67-A-721-103, 

1017-1959-013 

DATE 

3/31/59 

3/59 

DOCUMENT 

OFFICE MEMORANDUM to 

H. Rex Lee from 

Homer B. Jenkins 

OFFICE MEMORANDUM to 

files from N. Lasky 
DOC. NO 

1959.23 

1959.24 

AGENCY NO 

Ace. 67-A-721-103, 

1017-1959-013 

no number 

.lmH 

4/06/59 

4/07/59 

DOCUMENT 

LETTER to Raymond H. 

Bitney from Asst. 

Comm. Thomas M. Rold 

CONGRESSIONAL RECORD - HOUSE 
DOC. NO 

1959.25 

1959.26 

AGENCY NO 

Ace. 67-A-721-103, 

1017-1959-013 

13061-1953-319 

DATE 

4/07/59 

4/10/59 

DOCUMENT 

OFFICE MEMORANDUM to 

files from N. Lasky 

LETTER to 

Commissioner, BIA, 

from Supt. Richard 

Butts 
DOC. NO 

1959.27 

1959.28 

1959.29 

1959.30 

1959.31 

AGENCY NO 

Ace. 67-A-721-103, 

1017-1959-013 

no number 

Ace. 67-A-721 

Termination, 067 

Business Committee 

Minutes 

Ace. 67-A-721, 130 

Withdrawal 

Ace. 67-A-721-103, 

1017-1959-013 

DATE 

4/22/59 

4/22/59 

5/31/59 

6/08/59 

6/10/59 

DOCUMENT 

ANALYSIS OF H.R. 

6128 

MEMORANDUM to 

Legislative Counsel 

from Commissioner, 

BIA 

LETTER to Supt. 

Butts from Garfield 

c. Harris 

LETTER to Mr. 

Aspinall from Asst. 

Sec. of the Interior 

Roger Ernst 

PRESS RELEASE by 

Dept. of Int. 

Information Service 
DOC. NO 

1959.32 

1959.33 

1959.34 

AGENCY NO 

Ace. 67-A-721 

Termination, 003 

Miscellaneous 

Ace. 67-A-721 

Termination, 067 

Business Committee 

Minutes 

Ace. 67-A-721 

Termination, 064 

Council Acts 

DATE 

6/16/59 

7/06/59 

7/11/59 

DOCUMENT 

OFFICE ME.MORANDUM to 

Supt. from Andrew w. 

Lathem & Charles 

Dunn 

MINUTES of monthly 

Executive Committee 

meeting 

MINUTES of SemiAnnual Catawba 

Tribal Council 

Meeting 
DOC, NO 

1959.35 

1959.36 

1959.37 

AGENCY NO 

Ace. 67-A-721-103, 

1017-1959-013 

Ace. 67-A-721 

Termination, 065 

Elections 

no number 

DATE 

7/17/59 

7/22/59 

.S/11/59 

QOCUMENT 

LETTER to Roger 

Ernst, Asst. Sec. of 

Interior, from 

Samuel Beck 

INTER-OFFICE 

TRANSMITTAL to 

Alfred N. Harris, 

Sec.-Treas. of· 

catawba Tribe, from 

Supt. Cherokee 

Agency 

CONGRESSIONAL RECORD - HOUSE 
DOC, NO 

1959.38 

1959.39 

1959.40 

1959.41 

/ 

AGENCY NO 

Catawba 130 

no nUIIIber 

no number 

no number 

lmm 

8/17/59 

8/27/59 

8/29/59 

8/31/59 

DOCUMENT 

LETTER to Samuel 

Beck from Roger 

Ernst, Asst. Sec. of 

Interior 

LETTER REPORT to 

Sen. Murray from 

Roger Ernst, Asst. 

Sec. of Interior 

NEWSPAPER ARTICLE - Washington Post 

SENATE REPORT 863 
DOC, NO 

1959.42 

1959.43 

1959.44 

1959.45 

AGENCY NO 

Ace. 67-A-721 

Termination, 064 

Council Acts 

catawba 130 

Ace. 67-A-721-103, 

1017-1959-013 

no number 

.lmH. 

8/31/59 

8/59 

9/01/59 

9/01/59 

DOCUMENT 

MINUTES of Catawba 

Executive Meeting 

INDIAN AFFAIRS 

NEWSLETTER article 

NEWSPAPER ARTICLE - Washington Post 

NEWSPAPER ARTICLE - Greenville News 
DOC. NO 

1959.46 

1959.47 

1959.48 

AGENCY NO 

no number 

no number 

Ace. 67-A-721-142, 

370 - catawba Rightof-way Sewage Line 

12M§ 

9/01/59 

9/11/59 

9/12/59 

DOCUMENT 

HOUSE REPORT NO. 910 

to accompany H.R. 

6128 

LETTER REPORT to Mr. 

Stans from Royce A. 

Hardy, Asst. sec. of 

Interior 

LETTER to the 

President from Mrs. 

Howard Thomas 
DOC, NO 

1959.49 

1959.50 

1959.51 

1959.52 

AGENCY NO 

no number 

no number 

no number 

Ace. 67-A-721 

Termination, 003 

Miscellaneous 

.RMI 

9/21/59 

9/21/59 

9/21/59 

9/29/59 

DOCUMENT 

PUB,L, 86-322, 73 

STAT, 592 

CONGRESSIONAL RECORD - HOUSE 

EXPLANATION of Pub. 

L. 86-322 

LETTER to Comm. 

Glenn Emmons from 

Red Thunder Cloud, 

Chief's Grand 

Council Authority, 

Federated Eastern 

Indian League 
DOC, NO 

1959.53 

AGENCY NO 

Ace. 67-A-721-103, 

11273-1959-077 

DATE 

10/07/59 

DOCUMENT 

LETTER to Rep. 

Hemphill from Roger 

Ernst, Asst. Sec. of 

Interior 
DOC, NO 

1959.54 

1959.55 

1959.56 

AQBNCY NO 

Ace. 67-A-721-142, 

370 Catawba Rightof-Way Sewer Line 

Ace. 67-A-721-103, 

11273-1959-077 

Ace. 67-A-721-103, 

11273-1959-077 

~ 

10/15/59 

11/05/59 

11/08/59 

DOCUMENT 

LETTER to Mrs. 

Howard Thomas from 

Commissioner 

MEMORANDUM to 

Commissioner, BIA, 

from Roger Ernst, 

Asst. Sec. for 

Public Land 

Management 

LETTER to Mr. Rich 

from Mrs. Howard 

Thomas 
DOC. NO 

1959.57 

1959.58 

1959.59 

AGENCY NO 

no number 

no number 

Ace. 67-A-721-138, 

130 catawba 

Withdrawal 

DATE 

ll/17/59 

ll/19/59 

ll/23/59 

DOCUMENT 

LETTER to Raymond 

Bitney, Program 

Officer, from Peter 

F. Walz, Program 

Officer 

NEWSPAPER ARTICLE -

The Charlotte 

Observer 

MINUTES of Catawba 

Tribal Council 
DOC. NO 

1959.60 

1959.61 

1959.62 

1959.63 

1959.64 

AGENCY NO 

no number 

Ace. 67-A-721 

Termination, 064 

Council Acts 

Ace. 67-A-721-103, 

11273-1959-077 

Ace. 67-A-721 

Termination, 064 

council Acts 

no number 

.!ll\.'Ui 

11/24/59 

12/03/59 

12/16/59 

12/22/59 

12/23/59 

DOCUMENT 

NEWSPAPER ARTICLE -

The Charlotte 

Observer 

MINUTES of the 

Catawba Executive 

Committee Meeting 

OFFICE MEMORANDUM to 

Horner B. Jenkins 

from Raymond H. 

Bitney, Program 

Officer 

LETTER to Mr. 

Fleming from Gladys 

Thomas 

NEWSPAPER ARTICLE -

Evening Herald 
DOC. 1!0 

1959.65 

1959.66 

1960.1 

1960.2 

1960.3 

1960.4 

AGENCY NO 

no number 

no number 

Ace. 67-A-721-103, 

11273-1959-077 

no number 

Ace. 67-A-721 

Termination, 064 

Council Acts 

Ace. 67-A-721-103, 

11273-1959-077 

~ 

12/24/59 

12/28/59 

1/01/60 

1/60? 

1/02/60 

1/05/60 

DOCUMENT 

NEWSPAPER ARTICLE -

Evening Herald 

NEWSPAPER ARTICLE -

Evening Herald 

LIST OF MEMBERS OF 

THE CATAWBA TRIBE OF 

SC ELIGIBLE TO VOTE 

ACCORDING TO 

AVAILABLE RECORDS 

AGREEMENT 

MINUTES of General 

Tribal Council 

Meeting 

LETTER to Elder Ezra 

Taft Benson from 

Pres. Maurice A. 

Evensen 
DOC. NO 

1960.5 

1960.6 

AGENCY NO 

no number 

Ace. 67-A-721-103, 

11273-1959-077 

DATE 

1/13/60 

1/20/60 

DOCUMENT 

LETTER to Asst. Sec. 

Roger c. Ernst from 

La Verne Madigan, 

Executive Dir., 

Association on 

American Indian 

Affairs, Inc. 

MEMORANDUM FOR THE 

FILES from Program 

Officer (Walz?) 
DOC, NO 

1960.7 

1960.8 

1960.9 

AGENCY NO 

no number 

Ace. 67-A-721-103, 

11273-1959-077 

Ace. 67-A-721-103, 

11273-1959-077 

~ 

3/07/60 

4/60 

5/09/60 

DOCUMENT 

LETTER to Samuel 

Beck from Asst. Sec. 

Roger Ernst 

LETTER to Elbert H. 

Garcia from Asst. 

Commission Thomas 

TELEGRAM to Chief 

Albert Sanders and 

Mrs. Gladys Thomas 

from Supt. Darrell 

Fleming 
DOC. HO 

1960.10 

1960.11 

1960.12 

1960.13 

AQBNCY NO 

Ace. 67-A-721-103, 

11273-1959-077 

Ace. 67-A-721-103, 

11273-1959-077 

Ace. 67-A-721-103, 

11273-1959-077 . 

no number 

.an 

5/11/60 

5/11/60 

5/21/60 

5/23/60 

DOCUMBI!T 

TBLBGRAM to Chief 

Albert Sanders from 

Supt. Darrell 

Fleming 

TBLBGRAM to 

Commissioner, BIA, 

Attn: H. Rex Lee, 

Deputy Commissioner 

aBSOLUTION 

NBWSPAPER ARTICLE -

Evening Herald 
DOC. NO AGENCY NO .lmn DOCUMENT 

1960.14 Ace. 67-A-721-103, 5/24/60 OFFICE MEMORANDUM to 

11273-1959-077 Deputy Commissioner 

from Chief, Branch 

of Tribal Programs 

1960.15 Ace. 67-A-721-138, 6/ ?/60 MEMORANDUM to Sec. 

File 130 catawba of Interior from the 

Withdrawal Commissioner 

1960.16 no number 6/18/60 NEWSPAPER ARTICLE - 

EYeninq Heillld 
DOC, NO 

1960.17 

1960.18 

1960.19 

1960.20 

AQBHCY NO 

Ace. 67-A-721 

Termination, 11273-

1959-077, Pt.I 

Ace. 67-A-721-138, 

File catawba 

Withdrawal 

Ace. 67-A-721-138, 

File 130 catawba 

Withdrawal 

no number 

Jmn 

6/23/60 

6/27/60 

6/30/60 

7/18/60 

DOCUMENT 

CONTRACT POR A 

PLANNING REPORT 

GROSS APPRAISAL 

between BIA and 

Henry R. Bryant of 

Charlotte, NC 

NOTICE THAT THE 

PROVISIONS OF PUB.L, 

86-322, ACT OF SEPT. 

21, 1959 (73 STAT. 

592) SHALL APPLY TO 

THE CATAWBA TRIBE 

AND ITS INDIVIDUAL 

MEMBERS 

PRESS RELEASE 

MEMORANDUM to P.F. 

Walz from H.B. 

Jenkins 
DOC. NO AGENCY NO DATE 

1960.21 F-60-1033-9 7/22/60 

1960.22 no number 8/06/60 

1960.23 no number 8/09/60 

DOCUMENT 

MEMORANDUM to 

Commissioner from 

The Solicitor 

NEWSPAPER ARTICLE - Evening Herald 

NEWSPAPER ARTICLE - Evening Herald 
DOC. NO 

1960.24 

1960.25 

1960.26 

AGENCY NO 

no number 

File 130 Catawba 

Withdrawal 

no number 

DATE 

8/10/60 

8/17/60 

9/15/60 

DOCUMENT 

NEWSPAPER ARTICLE -

Evening Herald 

NEWSPAPER ARTICLE -

Evening Herald 

COPY OF HANDWRITTEN 

ORIGINAL LETTER FROM 

RAYMOND H. BITNEY 
DOC, HO 

1960.27 

1960.28 

1960.29 

1960.30 

AGENCY HO 

no number 

F-60-1033-9 

no number 

no number 

PATE 

10/16/60 

11/ ?/60 

11/29/60 

12/02/60 

DOCUMENT 

LETTER to 

Commissioner of 

Indian Affairs from 

Raymond H. Bitney 

LETTER to Raymond H. 

Bitney from Acting 

Comm. Leon v. Langan 

LETTER to 

Commissioner of 

Indian Affairs from 

Raymond H. Bitney 

LETTER to 

Commissioner of 

Indian Affairs from 

Raymond H. Bitney 
DOC. NO AGENCY NO ~ 

1960.31 no number 12/20/60 

1960.32 no number 12/28/60 

1960.33 no number 12/31/60 

1960.34 no number 12/31/60 

DOCUMENT 

LETTER to 

Commissioner of 

Indian Affairs from 

Raymond H. Bitney 

LETTER to Comm. of 

Indian Affairs from 

Raymond H. Bitney, 

Program Officer 

BALLOT 

LETTER to Comm. of 

Indian Affairs from 

Herbert Blue, 

Catawba Branch Pres. 
DOC, NO AGENCY NO 1mH 

1961.1 no number 1/12/61 

1961.2 A-61-1075.9 1/13/61 

1961.3 no number 2/07/61 

1961.4 no number 2/09/61 

DOCUMENT 

MEMORANDUM to 

Reviewers from D.H. 

Bruce, Acting Chief, 

Branch of Realty 

LETTER to Raymond H. 

Bitney from Acting 

Comm. Leon Langan 

NOTICE OF FINAL 

MEMBERSHIP ROLL 

LETTER to CIA from 

Raymond H. Bitney, 

BIA Rep. 
DOC. NO 

1961.5 

1961.6 

1961.7 

1961.8 

AQBNCX NO 

Ace. 68-A-2045 

Cherokee, 12945-1961 

Cherokee 259 

no number 

no number 

no number 

am 

2/10/61 

2/10/61 

2/16/61 

3/01/61 

DOCUMENT 

LETTER to CIA from 

Raymond H. Bitney, 

BIA Rep. 

LITTER to CIA from 

Raymond H. Bitney, 

BIA Rep. 

LETTER to CIA from 

Raymond H. Bitney, 

BIA Rep. 

LETTER to CIA from 

Raymond H. Bitney, 

BIA Rep. 
DOC. NO 

1961.9 

1961.10 

1961.11 

AGENCY NO 

Ace. 68-A-2045 

Cherokee, 12945-1961 

Cherokee 259 

no number 

no number 

lmn 

3/01/61 

3/14/61 

3/16/61 

DOCUMENT 

LETTER to Raymond H. 

Bitney from Asst. 

Comm. 

LETTER to Rep. 

Robert w. Hemphill 

from Grace B. Lewis 

PORTXON OF APPRAXSAL 

REPORT dated 9/22/60 
DOC, NO 

1961.12 

1961.13 

1961.14 

1961.15 

AGBNCX NO 

no number 

Ace. 68-A-2045 

Cherokee, 12945-1961 

Cherokee 259 

no number 

no number 

DATB 

3/17/61 

4/61 

4/11/61 

4/24/61 

DOCUMENT 

MBMORANDUM to Chief, 

Branch of Tribal 

Programs, from 

Appraiser John T. 

Ribble & Program 

Officer Peter F. 

Walz 

SAMPLE RBSOLUTION 

LITTER to CIA from 

Peter Walz, Program 

Officer 

LETTER to Herbert 

Blue, Branch Pres., 

from Peter F. Walz, 

Program Officer 
DOC, NO 

1961.16 

1961.17 

1961.18 

1961.19 

1961.20 

AGENCY NO 

no number 

no number 

no number 

12273-59-077 

Cherokee, Pt. 2 

Ace. 67-A-721-103, 

11273-1959-077 

DATE 

4/25/61 

5/12/61 

6/09/61 

6/20/61 

. 7/11/61 

DOCUMENT 

LETTER to CIA from 

Peter F. Walz, 

Program Officer 

RECOMMENDED BUDGET 

ARRANGEMENT & 

RELATED MATTERS FOR 

CARRYING OUT 

TERMINAL EDUCATION 

PROGRAM FOR CATAWBA 

INDIANS by Selene 

Gifford, Asst. Comm. 

(approved 5/18/61 by 

John D. Crow) 

APPRAISAL by Henry 

E. Bryant 

DISTRIBUTION OF 

CATAWBA TRIBAL 

ASSETS 

LETTER to CIA from 

Arthur N. Arntson, 

- 'ogram Officer 
DOC. NO 

1962.1 

1962.2 

1962.3 

1962.4 

1962.5 

AGENCY NO 

no number 

Ace. 67-A-721-103, 

11273-1960-077 

Ace. 67-A-721-103, 

11273-1959-077 

no number 

Ace. 67-A-721-103, 

11273-1959-077 

DATE 

2/01/62 

4/01/62 

4/03/62 

4/11/62 

4/19/62 

DOCUMENT 

DISTRIBUTION OF 

CATAWBA TRIBAL 

ASSETS 

MEMORANDUM to Assoc. 

Comm., BIA, from 

Chief Tribal 

Operations Officer 

R.W. Quinn 

LETTER to Arthur 

Arntson, Program 

Officer, from Gladys 

G. Thomas, Pres., 

Women's Relief 

Society 

LETTER to CIA from 

Arthur N. Arntson, 

Program Officer 

LETTER to Arthur H. 

Arntson from the 

Comm. 
DOC, NO 

1962.6 

1962.7 

1962.8 

1962.9 

J\GBNCY NO 

no number 

Termination File, 

Pt. III 

11273-1959-077, Pt. 

III 

Ace. 67-A-7210103, 

11273-1960-077 

.!m!l 

5/09/62 

5/18/62 

5/29/62 

6/15/62 

DOCUMENT 

MEMORANDUM to files 

from Peter F. Walz, 

Tribal Operations Officer 

NEWSPAPER ARTICLE - Evening Herald 

MBKORJ\NDUK to r.W. 

Quinn, Chief Tribal 

Affairs Officers, 

from F. Miller, 

Program Assistant 

LETTER to Chief 

Albert Sanders from 

John A. Carver, Jr., 

Asst. Sec. of the 

Interior 
DOC, NO 

1962.10 

1962.11 

1962.12 

1962.13 

1962.14 

1962.15 

1962.16 

AGENCY NO 

E-62-1139.9 

no number 

Ace. 67-A-721-103, 

11273-1959-011, Pt. 

I 

H-62-1041. 9 

Catawaba 077 

H-62-1041.9 

H-62-1041. 9 

.I2.MI. 

6/15/62 

7/01/62 

7/17/62 

8/09/62 

8/19/62 

9/17/62 

9/17/62 

DOCUMENT 

LETTER to Gov. 

Ernest F. Hollings 

from Asst. sec. of 

Interior John A. 

Carver, Jr. 

NOTICE by John A. 

Carver, Jr. 

LETTER to Peter Walz 

from Mrs. Ellen 

Canty 

MEMORANDUM to the 

Solicitor from the 

Commissioner 

NEWSPAPER ARTICLE - The New York Times 

MEMORANDUM to CIA 

from the Solicitor 

MEMORANDUM to 

Examiner of 

Inheritance Kent R. 

Blaine from Deputy 

Solicitor Edward w. 

Fisher 
DOC. NO 

1962.17 

1962.18 

1962.19 

1962.20 

1962.21 

1963.1 

AGBNCY NO 

H-62-1041.9a 

H-62-1041. 9a 

Ace. 67-A-721-103, 

11273-1960-077 

H-62-1041. 9 

Ace. 67-A-721-103, 

11273-1960-077 

L-62-1038.9 

Jmn 

10/04/62 

10/04/62 

10/04/62 

12/05/62 

i962? 

1/09/63 

DOCUMENT 

MBMORANDUM to CIA 

from Deputy 

Solicitor Edward w. 

Fisher 

MBMORANDUM to 

Examiner of 

Inheritance Kent R. 

Blaine from Deputy 

Solicitor Edward w. 

Fisher 

LETTER to Sen. 

Dennis Chaves from 

Paul r. Dillard 

MBMORANDUM to 

Examiner of 

Inheritance Kent R. 

Blaine from Assoc. 

Solicitor, Indian 

Affairs 

LETTBR to Chief 

Albert Sanders· from 

the Commissioner 

MBMORANDUM to CIA 

from Charles M. 

Soller, Asst. 

Solicitor 
DOC. NO 

1963.2 

1963.3 

1966.1 

1971.1 

AGENCY NO 

B-63-1006.9a 

Ace. 67-A-721-103, 

11273-1960-077,Pt.I 

F-2 Catawba, 928-66 

F-2 Catawba Indian 

Land 

!mn 

2/13/63 

7/24/63 

3/29/66 

9/13/71 

DOCUMENT 

LETTER to Examiner 

of Inheritance. Kent 

R. Blaine from 

Deputy Solicitor 

Edward W. Fisher 

LETTER to Mr. 

Jenkins from Gladys 

Thomas 

LETTER to Charles E. 

Lee, Dir. of sc Archives, from 

Acting Deputy Comm. 

REPORT ON THE STATUS 

OF THE CATAWBA 

INDIAN LAND 
DOC. NO AGENCY NO !2bn 

1981.1 no number 4/01/81 

DOCUMENT 

LIST of India

Tribes termin

from federal 

supervision 
.·. '·.: 

. . . : . : ~ .. :_ ·:.-:::.' . . 

I 

., 

I 

755 

/_1f . !_4;~ .Name, .... t.~~---- ... ---~~---

Arlrll'ess, .......... ~ ..................... .. 

lJu/,•, .. !!~_?:,_~_, _ __/ff._l f' 
3 .. .'· T~'l~ :·c::;. to;vihc: !ndian3 

o~' S;:ruc!: Cc.!"oli~~,· •. 

756 

Che rokf.: 3, IT~ C. H:.4.rc!-t 2.5, 1910. 
757 

appropriation of' $3 ,200 :for t::te Tribe of which sum ~3, 000 ha:: bean 

used for their Sl.l!>port e.nd$200 for school purposes, !:!ost of thesn 

Indi:1n3 aro::t not lfery nell off and. in fact ca"h be classetl as !)Oar an..:"!.. 

needy. Thll principal eP.inful occupation o:f t?l;;, womr;rn is pot:t3.r:t 

artistic ability. 

the Indiana to tr~·intain a school for not over ni:.c montns ~:-~arly,n:t•::1 

aa :ear as I '!rt.n learn not a very good school at that. The~e ctr..:~ 

r.salth of the T~iba is ver:.:r good there baing little, if f!.ny, tab::-·r.,utha General Govarnm~nrt-a. fe\V o:r the children of the Tri1n ho·.r.~V.ll' 

hava been educated e. t Government ex;>an::e. 

of childrez: of t!le Tribe '"'ho should b3 in ocilool sc:~·~wh-are·. . They 

o;;ould pronabJ.y be s3nt more :rraaly to Ce.rliala ,ru1d po:m::i.cly oom0 to 

t:.'lill School, if it we!".:. not for a filar on ":;:ta part of tha I:rdi?.nc 

that they wo:zld not receive t:1.<! per ca.pit9. eh:!.r'es fro:n the St:.-.~e- tor 

the absent. ci~ild.ron. If' the per cn.pi t~ .. 1:'7S.S paid jus:::. the sana 

ilhe·the4 the c!1..1ldi..""en .-rare on the resei .. v:.•.t.io:'l o~ e:J.s::r:r:~era, no d~1t'ht 

t!l.g at.tit.llda cf t:!l~ pa.rentn r{:e;;•.:d:!r..g st~!'ld:!n~ th~lr c11ildra~1 ;.Y:'Q.Y t'.> 
758 

b~ ed.uca ~e:i would undergo u ct-42nee. 

a 't C~.rllsle sornstir:'l-3 ago but t;1ay returned hc:!l:~ la:.it s:.1!·:Ut9!"' E=.nd P ..s 

:!"~.r as I lctO'IT none of the C24t..1:Nb~." children are away at school ~t presezti:., \7it::l tila exce9tion of one pupil hora at Cherok~e. This J.U1;le 

r;irl :'las been acloptsd by one of' our em.plo:~,ree~,Hr. Sampson 0';"71; wb.O!Jl! 

\:-:if~ is ~.. Ca. 't:t.'ri'oa. !ndi:.>. !l. 

wit~ seven or eight childre:n. 

be Yery bright end qtticlc to learn, 

I do not thi:r..k the t3.1:ine ~13.3 log-::.1. eyen t.!l.cu::;'h lXr:.:J.ar :.n 

Act t·f th-3 Sta.te I,eg1slature,and am of th~ o,pin!o11 t:'lat stap:a oht)·.t1d 

bo ~en by ttte G!'nal·al Goverr.u1ent tCr p!"'otec~ ti1e int:lt"03~s of t~~~1 
759 

is loctlted O!! a portia~ of tha old reservation whirh. ,.,as laane-1 ~,..;:; 

alraady eta~ed for 99 year~ so~e~ing ov~r 100 yaars ago. 7r.e 

Indians :0..'\Ve had two or t.-.,ree lawyers employed but all of the:n di;;<t 

ba~ore doing much '~ anyth!ne towards s~curing a just and equ!tac!e 

I do not bon wh~ttler or not t.ha 

or n:>t. David .A. F-3.rria is one ot th<l lsatting men oi" the Td.":l·ao r.o:l 

I u~Ge~stand~ is trying to 9u~h ths c~ss. 

mon~:'lfJ in 1907-l ~oa, a!!d seems to b3 w-~11 poated in tl:e affairs c1 

in Yorli: Cotu1ty ,Sout..it Cn;.-ol in::.t., which cottnty ~dj o~ .. n3 thia s·tat.~. T~1e 

c.l.''H3t of transport~tio!l frOll'! hero3 to the C~.t:a:-:vfl~ rc~a~v~.tio:n 7:ould. not 

I bel ie<e it .,,ou:lct 
760 

far.eJ· from C!!erokee to Col:Lr:lbia., s. C. would be E>.bo"!.lt ~~7.00, or about 

$14,00 :for t"'e r01md trir>. 

Under ds;;;.e o:f !:: .. '\rch 20, 1907, Hr. Chester F.owe :;.tto::-n~y for 

tb.e Cata~vba Tribe of I::dhnn a.cldrsused a letttH" to 1~.r. Ancl.nn J"ohn 

w;l.o 1!.8.d anl:ad. him for an opi11ion with rel? .. tion to the rizht9 of th.~ 

Cat"'w·n Ind:laniJ residin::; in the State o:f Sou:.;"l Carolin& .• 

:b..,or your- infor:na.ti,;n I respe::tfv.l.J.y 

Gantlema~: 

! t:..'!l in rJc~ipt of the raqu.:>s-: c!: !,lr. Andrt:•7 ~ch;1, J."1',)-.- ~-"'! 

opinion wi"":.t!. r>31~...-;,;.io~1 to th:t :-:tr)!.ts cf tho C3.t~.··fo~~ Ii.l:.':..i<lr!:],r~·­

sid·tng in t~wa f;-i·.~~~~ of Sout:'l Ca:-ulina. e.nd e ..ror·::tru:lce o1' tha con, .. cur~~nt re3olu7.icn of the !Jen~t3 and House of Reprd3~.=tt?~t.t-:.:·::.:: ,;,f 

c3.id State W.··t:~ch rec.f.d! a:J :folJ.o-rr .. :: 

:Se 1 t res£'-lved·, Jiy the Son...=\ t9 P ... nd. Rr:n.1sa of ?.e!Jrflsent? • .~;:l .. ,,)S, 

that th.e Goyarnor be raqc.ested to call u2:·:~-n the Attorne:; ...... G~~;: ... ~J.l 

to inve!!tigate the lseal status of th:': CP.ts.ciba Indians in t<>::..; 

Sta-::3, to investigate ar.d report upon the legalit~r cf t.h.a tr;•c,':.;: 

of 1840, ma<1a with zaid. Indians, Yihe.ths!'" the S!'.r.'l~ was valiO. :r.(··· 

cord!ne to th·~ lat-TS of U.s Uni te·i Sta~an, a.nd v.~et!:~r t~~e Ste. ~·J 

oyer paid to the I:!di~.na tl:a =ott.'lt. called :for b,:: said ·~rea t;r. 

Also to report as to Tllo.E'.t :!.s raq1.1ired under the l~W/3 o:r the 

United S·~tf.::J to r-!.?,.'!:·3 a. vs.1ir;l trog."t.y with said !ndia.n ~:-i"u&. 

You a~lc me to 

faet.1 and the law as 

rasol~ti~n for.the 

J.t·i;orney-Cenaral. 

ei-.ro you as briefly ao I co.n appliad to the fe.ct8 1 called 

ptL":JO!Je of srf::mi3aion to t-'le 

In raply; I h.'\ ve to s~.:..-: 

a s t:::. ":; e::teTt·~ 

for bv aa;;.u 

Goveri1or &.!'11 

¥"' .. , .. :~ 

"-,.-··~ 

The Ca te:ube. tr:ib& or nation of Indi~.!'iS, ac~o:-cl i.."lg to yon~­

.cen~us, con'iis ts of a 11 ttle over on:~ h~.md.red per£:0!1~, th-::t r..:1::.- r:~nt o:t EO. on·:}~ powerful p:::lo,i)la. Under t:·u: in-v,:n;t:!.ea~ion::~ c··l::-

1:~~~;e~f b~;,~l~'\l~~~~~'\,~~ ~~~~~~~gl; ~~.v i~P.;~~~~ ;.~~t t;~~~- ~~i?. ::,.~,1 cc~~!lon ..-tlth tha Iriq1toi3 trii'J:=!s, you. grc.:..dt\all~· t1•)V-3~~- uo:r::L·::~.r~t 
761 

cros3ing tile bou."l.dary line \7est of' ths Iriquois countl";;', t-.n<l :r..o...-il!~~ eratl..ually to the headwa.ta:ru of the Kdntuc:Cy, rr:i::;:a.ting in e. bcdy s~atl:ua in t.l-te Sev~ntaenth can:~ :.try, approxil~:.-.tely the 

yell.? 165:1, to \'fill.t is now the C!!.ta,7ba Ri7ar, and were o.::cup;..n~a 

of a. lars:~ port!on of the S~C\t3 or South carolina a~ th:l dat~l Cf.( 

its se"ttlement." X 'I ><. X · f 

• On Deccmbflr' 15, lB:Lo, . tl:te lbgialat.ure ;:uo.de 

ti1c eject!!",ent of persons failinG to pay rant to 

I:ndi·).ns, Oi:"' holding pcs:la3sion. of la!l:O.a without 

provi:s ions for 

the C!ata7rba. 

le21.ail. 

0~ Dec8~03r 15, 1838• the le~i3lature passed an Act i~ 

Y!hic!l th~ rc-~.-..!rsionar-y· rieht, titlo o.n.d int~r~st of the St:::.ta· 

i!1 the.2e lan6.3 \Tas veuted in the par::;ons YlhO held tl':.&: l3.!li.L~ Rf~ 

;...Jssaea. This Act WP.s. apparc3n·tly inta:!ded to con:'irm tha 1,.1:-~-

H·::lt..!s' ti~!e ..-i!.thO'J.t r.iraju!lice to the In(l_i~!"'e. It cc:tt2.·:~~ an 

e.c~tO{{}~~d~9m-~n-~ o-r. th:: In1 !::a.n • s r~3ht of ocCU!;ancy th.Y"v·.t;:~~ t!.l--J 

p~-o!:Lli-:>n~ pr-ov:. . .:li11e; fo:- the coll~,'"!ti·)n of :t·\:.,;~t.:::i. I:-~ 1::.-:i it 

p?.:J3d.J to the:--s=3 pa:-t.ics as les59>3s, tiH1 pre-0mption rl;_:!l't c.r t~·;3 

~-~~.-t~, !J!Ovicli~tz the Stat3 at th2..t tirnp hs.d -th~~t r~.;ht. 

lit\;) n;.::·.-:t y\Sa.r, ir:r Dec~mner 13~~9, th~ lu.:;::Jlrvt.~tra :'1-y re;:;;,:::- tioa eppcd.n-:ar.l c0I~,t~:: •. :s i~Jn3!"'S to tr:.:.:;.t \"!:t t~1. the Ca:t."\.=/h,:. In._l.!.Z.:t~ 

for t!-....~~ r,;:.;-:i;in ... ~·-ti.:;J-;;!k::~t of t.he::r·{-Gh~:: Indi:•.n .s}t.:~tl~, ,;;.tl•5., Gn. 

1':..?~rc3-!. ~~3, 13!'~0, a tre2.ty w.:-1,;::; C~":r;.cl't_,.d?.d :n!:l~:t· w'hich t1!.:3 0t.:-.·::-~ 

!:·.~r!".::~l.:l~~~-.l all of' tht-1 l...'~.;n;:LJ O:t t!u~-~a r,zo~1l~ d-':l;"l~!"i1)Cd. CI.G Q,)i?>; 

:-.~.!t~e71. rro.il-as squtt.:-113~ cr- ~25 sq_u.:-... :-~ t'1!.lf:s, 2.:1'-l --'l.lla SS.::vt~: .:~_,·;~ 2-:.:l 

~~ ~~~;;·· ~~~h t~~~r.;~!~~~ ~n~:-$~~ ~5~6 ~~;d~r~~~.t~~r v~~~: ;~:~,;; :o~;d it 

i;3 t!-!-~1 -;;n.lidity of th13 !re8.ty, th-l richts anq~:!r·eJ. -:: .!~:-e~e"!de· ... , 

a-::-::1 tila preser.:.t ri.t;il.ts of t~1~-- lnO.U-tl-:. -v,'f! .. ich a;·e i:1;.:•.tirot! ii'!~O by 

the rasol~ticn su~itt~d • 

.At t.!lis point, it is pr-op(3r -to rafer to th~ position ta.:c:::n b:_... the: f;!U.aral gov-err:.!'l6~"l~: y:ith ral~.t.ion to tre~t:lea of thi;J 

c!t&.ractc~r. It h..,_a b~h1n the "'-all-;:~t·t;J..:.:d :poli-~;r, no~~ o.--.!ly u~\.la:..­

tll-3 Ccnstitutivn, bu't also under t:h-a e.~·ticle3 of c0;lfi1-:~.-1~-;;"!."ti•)~1. 

of: t~:e 1"ed.e!4al eo-vrn:~rmzen!,. to a~sc;rt in its~lf t::,_.:; 3:>~r:~: ~}~~::c. 

ric:l-'--"t- of' pre-emption, ~-r,.~; of the re:::ul~. tiun of tn1da ·c.41tl ~.{)!!"(­

r.:e-~ce, Cl~, ~.s it is co=etlonly te:!:ta~i..'ti!'\t.t:~cc.t-~.rne" ·:..-!.t:"l -:.he- I::id:i~..n 

t.:-i/)3'3 .. 11 

Il.i 1'782, t..he C~.t:a;;~-;::-. ~!::.t!nn o:!· InOi.:---..ns, v;ho ara refo:-re::'l 

~~i,~~:~-~~;n·~~;.!~~!:t~~~~ ;;o f~~~~~i~~o;;o t.g~~~rf~~~i;J:~i~_;_-~G ~~:~~i: l~~~~ 1::-! cnar.::.t£!0. ~.5 v;ould pro·tent in r:.ny r.;:-.nnar il"'i tl•.:J ft~~.I..Jt'd,?.l~•t, 

r-ccogni~:.i.:;_~ !:.t thcl·C. t.irn~ t..hr; r:l.i;h~D c .. t· {~l:n Colcn~J r~.n:i irl p'..~:- :•:-.. 

C;,HC6 Of t:!:'-e !·~111~y of t:lt~ c;o--ri'!I"!""I!r~itrrt, nn't. to l;i!.~t.\ f\l"C~t ... a S~~.i.i.d:·---..­

tiO!t:J ·r:"!~!l!"ci.o·er it could ~)e ~-.·;o.\d:~(l, ::. G!:r·,:·Jitt~:.; ~··e:r,or~.:'l·.i ~s :1."•:. : __ 

10'.\';1: 

r, •• "; -'-~! ~ --~ .!..:: ~; 

rh.·il~~cts 
762 

certF.in tr2.r::tt! of la!"lc1S reseryed. for t!"~ait' use, in tha fltiiot.e of Soat~ C~:-ol!na, l7!\_ich .fch-sy ~ish r:J.E..:r be so ~1-:~(:urad to th~ir tr:!.1ie 

t'..:J net to be i!"r~nlded ir:to b:r force, nor &.lienatecl e:e!~ ·,7i~h 

their ow:1 conser:.t~" 

R3solvad, "That it be rr1CCr~~~de(t to the J .. eg2slf\~Ur"~ 0~ th'9 s~:.3.t~ of South C::~.rolina ~ to t:!.~e such :tt~e.su!"a3 f"or t:te t~:i:.t is.fa.ct:!):_r .. ar.~. 3~cu~ .. 1:t:.y.of the ~~i~ ::."=b~, e.~ -;-;;·u::J ::;:? .. id lgeinl~.ture 

S-1-U~.L.t.> ln their \'tlSdc:!l, th~;u: I :l.u• 

"In l?f-;7, th?: Constitutio~ ":!as ::..c!OI>ted. by the ~-t:;~ta cf 

South C;;.rol!r...?., t·.nd, ~Y tha .;\c"'~ of Jn ..ly ~2, 1'790, :l't V12.H IJ'lOvideU b::- Congress unc1.c; S-~ction ~ of tl!at .Ac~: 

n~~h.a: r..o Gttl~ o:: lr ... ::d:-:: :.1~clo ~lj~r f!..:1~T Ir::5.ie.n3 or ~::-:.:.:- ~·:Q~~()~! 

014 ·~~:-~b3 of L~iz.r.s, "iiithin t:!.a U~tite;:.l fl~;.t·3'S s>nll .. (;J v:J.:.?.·1 1;.J 

~-!l~r persc:·! 0!" p!:!:l"'?;C:'!:;, cr to nny StatfJ') \'f.C.e~ll.:::- r,.:::.vit1g: - ., .... !~ . .::,:;..:.:; 

~~~d;r;~~~~~,;i~;! e~~G~~~~ ;~~~~.~1~r p~~iic tc~;~~ ~:.' ~~~l~~~~r~d~~!J.;~·3 r.a {:'~U~:l::or-i -:;r of t:--.. ~ U:tits·:'!. s·~~.t.~s. II 

'i"::.i2 v;e.s u:t:Ci.cu'bt·~d? .. ~r r.:.:"t e.::;::H~t·tio~t cr. .. fedor::.l ::o;;)r ~.::d. ~0:1-

trcl ever trc.:.~.t.i::;!'Z :::::-.de ··:ti't2 lr.O.:!.:,n3 ...-:h.o re3.:r..~·~. -..,::.i:thin t~:.~, 1~...:-;­

i\.s o:f' the or·ir:;ine.l ~·!"<i.rte~.::!"i: St3.tsJ, fo-:. .. c..t. t'hat t.~c:.~ t!"'.··:· ... ~ "-''3..~ 

~~il ~~~~~·t~;~~t~~!r~~;n t~~~\~;~~in °~o;~ef~~P{~~~~a~~!;~:~d !~;-,·~;; i~~- tl:er ~1.::-.J~o::~t-;.::i b:r the i' .. ::.3C t.~~~t the fe-:~JH'"r-.J. [:0'" ... :'1-~.::::.~E·~·. Y,i''Jc . ..:::.·i::."J. 

to P-'2.~::..: ti"'•);~";:~;JZ ni·:J!, !~1i~~· t:tlbes r:1::d na:;-;.i'Jn~\ re:Jid:l:--~c '~.r5.t:1:::: 

;;~t1 ~~;~i;~; J~;,;i~~I~~~~~ S~~~~~s {:-~~ ir-~~:~st=~~o f~t~~~~~h~;:~·:::~~n- th~y e.~e ncwJ vr.?~d.s of tb.~ n.;!.tion~" 

:< :l. X A 

The CD."':.:-t7ii~a -::~-:.~.:3 or· n~.ticn cf Tndi:;.ns c,.ro r:;fa::-""Fet~ to by 

th.~ Co2:.:.;;~~;;s r::'f tl!e f'e~l.::l-Z~.tion G:l f~o n:..,.ation." 'l.neir tJ:w..rac~tL'"' a9 

.:-.. trl'De io c;,)t'tl~d from t!::! fact t£1.3.~. th~~r then !:.r-.d. c~n·:1. no'.7 ha:tt~ 

tr:l".;)al gc·"'!·~rr:~!-::zr~, 1 :lviH:3 e.s \.~ .. n IndJ.~ .. !l ccnrr~P .. lni t:·', r~..,,..~. h~t~e beer: 

~~o~~~·:~ ~~~(~1fi!~ ~~ ~~h~s G~~~e r~~!a_to~~o~~;t~i~Ct;,~fe~t~·?~~;-~~-~~.:-:~;e·: co:·.di·::ion3. 'l'h~t they c~.\ne wi·tnin t~·u~ IJ:-o~'!.i"'o:lt.ir;n:-3 o'!" ·;;!~·:t 

~{~~:c-~~~~s ~b~r5 t~L!nf~~;. t.~P~~i~~~,t~e-~~~~·~~l~~~P.q~~ ~.!~~~;:;_ t~n;.o ti~~!se c.Ti.tl the m.t1loeq.nent £;;::-3-h.'?; o~ ~- t +.or:'!.!) "ted t~~,2.r~ t Of ths ul t =-~·!r~.~e *fee 

to tha- 13-n'-"-; O!" t1:'-_:! rif:;1ri; of pl~..;-emptio!'l of' the so:tl ;t{ "hy th~ 

St:tte of' Sout-~ Co.rol1n:t to tl~e 1:-td.i:vid:·.~.l les~3e!3 -.:-~~r~ in con- t~,:,.ventlo!l of the lf\~.1a of" th~ U::i-t~~d St;:::-. tns ~~n he.~l:r G3 c1.:!.-:·l-

!lUt'3d. In ral:'!.-~ion tn thL~ cr~~;?.;-.;t:tor:., !:·')7-~2-~;:)~", A::-t:orr.ey-G3."" . .7!l''.~ 

Cz.rl::.r.:.i, en JuJ..;.r 2J. t 1885, ra!!'.der·~d ~:=.:::1. Oi):!.n!on, un:::!.z. the f·:llGl;-

:1:-::c l'!::~~t::·~~e: 

11 0'.!r G0Ycl~T'.!1:!nt b;.1,3 ~··: ... :·;; clai;~:.=:,i t:..._:J-

.:;-arJ.y v~:-:7-licl 1-ts s~·~~;~::!d pa~_:::.c~,. 1:?.~> lie:~:,· 

·c.rol t.:·F: :--.,lie;·JatirJn or ct:'lar dispC:Jittnn 

~:l.Gn·:, :-~-:: :trc~~t ;:-!., ""t:.<·:..-:-

~~ f~~~~;-~·~·:.~ ~~-·\~ ~!~.:~ :.~lly 
763 

by IndUtn lie.tions or 'i'ribes, of" their lands. This policy vras ol'"iginally adopted in view of: their pec,lia:r che.re.cter a"d. hab-

!to, which rende:red them. incapable o:f sustainine; e.ny other relation ~;ith tile whites tha.n that of de!l·~ndence and pupilag'l'. 

T"nere was no· .other way of dea.ling with them than that of keeping the:n separate, RUhorci.ine.t.e, and der,endent, with a cuard:ico.n 

thrown Fround them for their protection. (3 Kent Co~. 1 3S;3aecher v Wetherily, 95 u.s. 51?, where most of the cases on this subject are cited asd discussed.) :< X ;< X 

By Section 4 of the Act of July 22, 1790, ch?.pte:r 33; tl!e 

Congress of the United Sta tea en.ctntod: 

"~Lat no sF~lc cf lands me..ti.c by any Indie .. n:, or B.ny !Ja tlon c·r Triba o:f Indians Tti.thin the United States, sb2.ll be va;ljld. to e.ny 

pcrsor! or :D":-s ong, or to o.ny State, wl!.3t:~<3'r havine; th3 right of 

r!re-el!l~~ion to sn-::h lctndt~ or no~, unless the sarr:.e sh:J.ll ha r:1o.c1.:) 

&.nd c1.uly e:.::acut~d at. som.9 publin treaty 1 held unci.er tho s.uthorlty of the United States." 

.A simile.r pro~isinn was ae;ain ene.r.'t.ec1 in Sect ion 8 of the 

Act of 1ia!_-ch 1, 1?93, cho.pter 19, i!1lich hy its t~:-na inclutl.8d. 

r.Any pu:rch::a.s~ or grant of l?.ruls, or of e.Y1:r title or- cl~.i:.~ then:~:­

to,frc."'!l any lr.rl.iana, or n~.tion o~ t:·ibe of Indir-.ns i'·iithi:i tLo 

bounds of ·t..~~ lJn:ltcd States." The :p!·o-;-isior~. Yt&.s fu.: .. t'te-: 1;1:;.::·:-;::~~d~'! 

by S::letic•n 12 of' the Act of' J\fu.;.> 19, 1 '7 96, chapter 50, so ~-~ t;:; 

e!!:.brac~ nA~';.!' pnrchCI.se, grantt leRsa, O!'" other conyey.:~nce of 

l!Uilds 1 or o:f an~c title or claim ther-eto. • As :l:hus e:qJlF~>:ln<>(i H r.:? .. s re:-ens.~·ted 1;y tha Act of lf~ .. rch 3, 1 '799, chapter 45, Section 

12, e.nd. also by t..l-te Act of l~aJ7.Ch so, 1E.02, cl-'2.ptor SO,Section 12. 

In t:!le above legiolation, the pro·Tision in t:'le terms aro·· plied to purchaflas, grants, leas·3s, &.c. ,fnrm individ~>:tl IndiE.ns 

as well ~'·" t·rom Indie.n Tribes, or :rations; but by thtl t.vel!'~h 

Section of t..f-!.e Act of J~tne 30i 1834, c!!a~pter 161 1 it was li.."'l'!ited 

to such as e::ilnated"from. any n:lia.n n~.tion or Tribe of lndi~.i,.s." 

.Anu tr.e pro?ision of the Act of 1834, jttst referred to, has been 

reproduced in Section 2116, Re?ieed Sta·~utee, which is new in 

force. 

~'le last n~~ed Sect~on declares: 

"l;:o purcha.ne, grant,.lea.se, or other conve::-ance of lar.ds,or. 

of any titls or clail'l t..'o.erf<to, from any In<lie.n 1:a.tion o:· Tribe or Indians, shall "he or e.ny valictity in la·a or equity, tmle~!'l 

mado b:r treaty or convention entered ir,to p1.trsuant to t!o.e Cons~itutiol'!.." 

':l'his c~~.tutory 1n·o...-is ion is V3ry c;en~ral ~-~d corr:;:Jr,;~-~e!ls.:!.:1?'a. 

Ito ov~~t.ion c=.oea n~~~ depend upcn the natvre o:- e:;;·;;~nt o-: t!,.e 

title to th~· 1:-.r.lt '""hi~h the tribe or na tiol'! 1'!2.y ho16.. ":;!1:~th3,~ 

such ti tla ba a fee s:tmpla, or a rizht cf C"-~cnp.?..r:c:r m~r::tly 1 ;~s 

not nnterial; in eithe-r ne+.se, the s~atut~ &l1llli·~~. It, i~ no-t, 
764 

t ... "laraf"ore, clee:med necessc-.r~r or important, in connection with 

the_ :1ibj2!c~ tmd;~ ;c-n-si~~ert~tior-~ .to in(luir~ i~~o the I?c.rt:lc;~lCI.~ 

rign·c. or t1.tlc t.O c;.!J..~ aoo'"rc rr:.an;;1onact. reserva.l . .!.On helo. by tne Indis,:"!' Tribes or Hations raspactively vshich claim them. \".'!l::!.t.-

evar t.he l":lght or tit.la r.~~~Y bo, c::=ch of these Trib~s or :·7a.tlon.a 

is pLecluded, by the force e.nd e:f:lec"t of t.h~ st:-..tut0, f':con 

eit:-n.~r alianation or 1e~.~ir.g E-.E~· of its res~:rvatioi1~ O)'" impE,.r·:;-

~n,g c=-.~-~Y interest. o~· cl2.im in Ol' to th!j: a::Lina, vi thout th,:., cor:G•;:_:·~ 

of tr"''~ Go"'rermn.;:nt of the U::ited States." 18th Attorney-(}nnarc.J.ts 

opinion, 235-37. S3r~ also Opinion of At~o:""n~y-St::neral J=;lack, 

:i3.y 14, 185?, 9th Attorn~~·-G2l1sral s opinion, p:tge 2 .. 1-. 

tiz::lor the E'~Utho~ities abo7~ c:it·?d, I v.m of tha 0~}5.:::1::.~ 'lb.at 

tl1.e Co. tnwba Indi::-.na s~ :ll:!. h2~7~ a r::g~.r~ of Ind1:::.n occ•-~rt:..~ ~-":.on i::.. 

th3 tre.ct of' land eat as:f.C.e a:t the \-7il~_-~y survay, ir. lr/64, th!:~.t 

being 11 1r..clie.!ts not ta::.::-:)Ci"a~ct '

1

non .... cit).Z:"):C:J of ·t:-.. e Ul~-1-t:~i Sta.{-.'.)3 

"·,-;:.:.rd'3 of th~ !iationJ 11 tl'!c ntf'.tutes of lj~'lj.ta-t.ion Er~·d t:~le pr-o-

~is ionG rela.-Gine; to p7esc::--5.pti~re t:ltl~ clo r:ot :::.~)J.y. 

'L"lerl"~ e..l"·e, l!.ow~"!"'i;-?r, i~ adti.itlon to t...">ta fo·:r·es:oi~:s~ e1).J:F.; 

f~.et;; Y;llich, fro!:l Cd! erruit2.~:~.~ ;:;t.;.~:nd.point, f.J!.nald. b·3 l'C=.:'~l-l""·~·;d ·~o 

r;i i:.h r.:~l~.tion to the trs~t:r o~ lS40. To "br:c;.:..r"l, th;~ C3.·:,,_;.:.Y"b?:. Ir:-

c"'!.::.~;.n:-_~ Y!~"!~o f'~l .... ;ays fri<·u;:clJ.y to t~1~ ,..li'....ites. 'lh:Ji!"' .tnb~Y;_; •-J~;i··:: 

i1:.tob:~1:.1~· C:t:2;::ger-at.£;d, 1:nt·~ the:-e e.r~~ cst:'.mt;,,"\;(::3 -u.pnn -..~.-}ti(:-~1 th~ 

n-. .. rrrib.:-r o:f Rm;: ... '!.a h3.Y'J b~~n plP.ced a5 hie;h Cd3 two thou.af•.r;·~;o '!'hsy 

joiil.:C:~. \7ith the tih.ita3 :l..~ tJ-,e l'l3.:r:.s ac;ai~;nt th<7: Ch;;~o~~:··-~ ~~ -:.-L1o 

ware oppoaing w}tite s~t tlen:.3g"t, ~.nd t~1.~ t~· lb.::: ·~··:..u ~.}.J:~o.:r':. 8Xt3rmin3.tni. Thvy ·•u3re ':tith ths 'cclor.i:::ts in tho W2.r of ·t.11~""* ~:.:.--.::7~1:~ ... \-

t:!.onJ B.nd t~eir condition in 1826 is aet for·t..'l lly Rob-e:·;:. ~~~ill;,:; 

in his Sta-'ci~tics of Sou7-£ C~rolinv., r:ublishe:l in tha'·. :.-·oal'" s.t Ch~.rleston b~r Hurburt & Lloyd, in w"h~Lr.h he states~~ ~-

x X M X . 

z I:' tbis 3!'.:m .. ~ co?~i;c~ .. i o-:-: '· ~ha re-por~ of ""cha C Oi miasione~~s 

?.ppo.~-n• .. ed to treat w.~:~n "tne Ce."t?..vrb~. Ind1f..ns und;;:r dat.e o:f April 

s, 1840, furnishes us so~a feJ:ts: . . X X ;{ .Y. 

Gan. Kezg ea.ys ha :-.:?.::ts to r~.r:ry his l'tOm?n to th~ c:1~~o1::ees 

n .. nd t-"'l"!.an by tl·v; 1:-1."-fiS ~.r: -~ c~_,stci!!!.9 t!1e:.,.. -,·.!oulcl aJ.l baco!11e c~ ·tawb3,:; 

an~l in t~..at vr.J.y fJtrcngth~n his 'rr:l.bz. 

?.nere c..loo sse:z;:;~ to be sOI!l.B: at•.o~tio?! Y!ith relation to t.hc 

title t.o e. y;:;.,rticula:.:- tre.ct of' la1;d kno7rn it!l the Ki.i'"lg'B Botton, I.!tl.-"!l~cli?. t31y follo·.-~' inG the ·eras. t!' of 18.~:~0, the Cat: .. ~f~).::~s ·:Ian·!'. to 

tr.c Sta t3 of lro~t\'· Caro~ i:-.:t.) 'ljd.th ~·. Y:i·.::-~- of perr;-;·".J.:1;~n tlj'- lo~~fl t::~ 

in ... t:.:: -~ ~~: te !..,.. '.', ~- :·; the en:::~:,:;~~. -~ ~1!~ .~e8:!: t~:: ir,. _:c:r~~ -~ ~--~i-- re,)rJo.~de!l!.;t;; b;:t... ""·A.!. the Go,..;:_n.~~ ... 0.'. t.n .... v.ro L) ... a-...:..3, l..~ -"•!.-..... :.. 

th~ Go .. rornor of :t~:;;t.h CZ?.rol:ir~~ s.;~t:!3d. to rese:1t the ::.nt.~·:~:3~.r:r.: 

c: t!le. Ca.t:o.~:l13 .. 3 "?ii ... :.hin th~ li1-;:.T.s c:f ~-,:_;;~~- s·t:a-~:3. The~" -1.-.~j;·;:! r;.J::n 

;~~~~ G~~~:~ ~~~;~l;~~ at~~~l ~-\~~~~~~~ ~~~ ·:;~~~~-.a~-~i ~~~~ ~~~~~:--~o;~-~-;~~r.~ of t~!.e i(i:ne;::; }~ottom, T:1!ic}! :h .. :? .. (l rot c~t that -t;;.m.~ bse:1 le:tser., t.r..:: 
765 

();;:J:ie b~ in,s. a tZO"aC '!:. Gf valLta.hl3 la.:r..d o: E-.1:.-0Ut 750 2.-:-·:c~:a, ;9:<!<.1 

t£12- t he c.:Lte;,;,:,_r(lf.> i':! ... ~'.nnfe~rt~d the .ss.;..-;'-" t-::- deed; &Jl~I t::-.9. ~ b.i~ 

trf:U.'ls::eraas o~- p:."~_~·(.:!.:; 3 clc-.d ... ;tinc th:-oG..c~:;.. 11im> }-;E-_va si~c3 :.-·~~;:1\-:.ir,­

eG. in !)Ossa:-:::s:ton o:l ths. t::acta 

?rom the b3:J-t. i~f c:--rr .. 3.-::~!.on ot:te1.in.EJ)l~ 1 v;tich 71C cr{E!: ;~: c:!.r:"~.i!:-. 

to lJ3 2.UtJ:2enic, it. a}";pe,q_r~~ ti1:1t ;:.t t!:.~ d::-.-::e o~ th~ t·:>0?.-':J o:..· lBt.:O, the. Ca:tz..,:Fb3. Tccli:.ns Y?erB r:;;ce:..-,:-ir:~; 1 ur, o;r. lec:,_st,) 7:·3''!"'0 c:~-

&; :~~6 ~~: r r=~~;~~e ir!u~;;~~s ~l-~e ~l~~~ 5 t}~~ :: ~h~!~-~~~Ej ~:f ~13 ~~li \~-:~::~ f.:.:.:::·~~ r?..t E- minim:U:-!1 is certain~ ';.'~·wn ~'c :no-;:2 ~-h:: "f~-~-c "tl1a-:: th.~~ ls-.:: .. J-:·: 

!-.:ad b0en r~.de ·a 1ong t:i"m::! :prior :.::::el-~·:~o, 2x.d t?:::,_t th2":-! L~:.·:~ ·u·.-:·:."l 

2. 1&.7'{::e ai::r~reci~.t:i.o~ :i.rl t~e v.:~ltL~ of lBs.::;e holc~i!l~::, t1:re to t::r:.::: 

suttlt:rlla-:J.t o.f t~ .. c cc:m-'..;ry, .s.nd t:-ce ir:.~:rt;e.~5cc~ valu;;> o:~ J_;;::,_,cl hc~.::..1-

inga cf r~.J.l kin6.s ~ 

0::-1: that 6C<vts, ['. c c~m.li~tee: c:.u:1e t0 t.~v::J2 p'":-•:;:_~2.-s ::.~-~{>. G-~'-~',:::.~::._~d 

t:~~~~ ~?C'~h~ !~f~;;y ~f )~3 ~~~g:;=~~~~ ~;~c-.~~-h ~:-,:;~\1~~~~ ~f -~ c ~-.,: . ~ ~ ~~ 1 ~ 

:-ento.l. ~-}!s.~.; rent2.l r-~:i.nr; per:::-~:?:.n~"'i;:t. r.11~~-

Indi.s..~~ r.l,;J:t.J, 'l'i13y f·,:.:·)ci·r·,;:: c~s:-.·00::-l ·~o ::t:.:c::~:::l/ :;,:;;·,..:~1 

~f~%;'t~,~}1~~~~;)~~ t~~ ~,~~~:~-~~~ ti~5~~ ~~::~;~~-~;~~~~ ~-~-~~;~~~~-:. ·:~-- :.-~j::··L. \'-;hi::::l:. -~J..:r.~~ tl~;.~:rt.: ~.'O'.' . .'.d Y!O"t: b:;,e..nc" .. w~~-3 nu·~, U::\13r' r.~ "'v:::-' 

fu::--t!:..::-- l:i.J:biJ.ity o:1 ·;::-:.~ ?J:::-t of tr..e s::.·:e" 'I':'::i: ~-r .. .,~~-·­

its0:1.~ e:-:\·.-~~'?!.:=t:~.::c-:s t!~~ r.-:ct:-::-:c:l·.'~:r o:J:' .-~.:::·1,;: c;:;::!:'::: ·:::l e:(~,;,~c::. .. 

s-::·n~one ir: the: :u:,klng c.f ·Gr,;::~:L~u t-;.f.t!: 2.r-~ igHo:-~:,::·t 

nx:;:: ce.n r.::to.3ticn -'c£1~; f.: .. i!-'.; th8_t tb.SJsa r-scl:;;;l0 1-::-•.d e~ 

fr:.ir r2n.·~:.!. v.:--.1 H:.:! o:t' t:".:.~ l:-·11.:ds n<Jl ']:c·:::~u. ::~.J ·t:t-;.~.:- :i.r p·-=::'"!:'~'.?:.~·--:+: ! _,: .. ,.;,. 

;~~J.~~a (~~~~;~~l t~; ~~:~3~~~;~~-~~-~~ni~~,;~:-~~~~3 d~~;~~~~' t~~J i.;\~~-~.·;~~;~l~~~-- ).o~:t2.:."l:3; and th:.t they th<!::n lt~d ·:~t.:; rigb.t of occ-'..:·::_;,-,.-~tvn "i.'.!":6.er tb== 

"t0r7.:13 of ti'le l·~;:i:JC to tlYJ rc~~·C:.:tl -'ohe:--3o:E ~ Witho;_-:_··.-: I.:~·-=::ir .. ~ a 

tr-22. t:·- 1 t:h.ay v10t~ld. ha v:z.. l'Dce iv~ .. l t!.l'l i.!-~C c::~a f'a::-- :!.2: ;?J(_l.-::::·.~:::v~ of tl:e 

0:-1.3 ~!'"a .. '"l·~.Jd. or s~~-~.r~.n~~e::-.:. b~r tl1.e ·CG?TJ.3 oi" t11i3 [l._-::_;.-~~-,;,;-:·_·;:,~ It ;,·.::.3 

e:. c:;;_::;e in y;h:ic.h th~ cu.J.:niia.n, :i.i' tha St~.-t.e ba t.he g·.L<~-: .. i.i:?.n, c.r 

t.he so .. ,_rez-3ign holding t.h~ p1~e-c~p·Cic:n righ·;·., so:~e;l"lt, b:r r:. ::.-raer::~·~t 

to e:·:tineu:l.:;"h ·C;he: I~1di.~.:.1 ti{;le,2.nd,v}~1ile it ~.·'a.·3 ~1d.oubt2!·~!.ly 

t...1-eir r.:"t:ts-t~--.b~ ttEflU:.es·=::to:~!.Oly a E:~-o;-::s er;o;- on t:: .. e par·C u::~ oo"':;.ecns, the:rn :i.:~ no :t'l....: ... n \·.~:~() ccw.::. e:-;::o.mir-.J th~ t~.~: .. rts cf the. t tr.t!'e.t::_.'", 

tt~:-::e tl'.e co.nd.itlo~1 o:r ;!,-our paople and tr_.~:::;:i_r title,~;;x.t!. a:··~lvs a/c 

e.n;;t co:1~l union otl1'3!" th:? .. n the :Lr::.r~t thP.t it' the t:-~:::.·:~~r y;~;;·.: i.""l 

all re;:;pecte v,:\.lid.! corli'c:-:-12.!'":..?; to evc-:-y rec_-._uire:13!~t cf 1~.~--~> th·:'! 

soYerGign S-tate o:i Sou-':.?1 C.:::.:r-ol.i.:r:.n C0\i~d no·'; ;;,f f'o1~0. 7 Cin~:. ·:o"J.ld 

r:ot in j<_-;.Gtica :c:r.~~ ::::=~:.c; :::f. T!r:i ;:JZ:O£C1 ccr:1pel a cor::pli::lcc-:~ \7:lt2'l 

its te:rm:1. 

In pr ... :;.;E:r."t5.t:e; tl1is :uc..ttaz." to the Gtato,fo!"" th:~ EJt.-7!.--t~ !;.:::;,.~ 

Oy rasolt~tior~ cr~.l~.ecl. for thit; i.nvest::::;.~-;~ivn, you e.hm.::.:.~.:: rei:;.-s::-.'!;3::· 

t:.:.2.·;:. 11.'!1-. .:.~ .. ~~ '~"":J..' e:-!·(,:C~J b.::.-~·.:!' 0~.::~1 e,c,~:a-'..':':·:::1 h~ . .-~··0 bee:-~ ~~ r· ··_:"c:t~·~:~3 

by ini:~ ~ . .-.:_t:·_.:,'J.l."3 D.nJ. EOt by t:_-.__-~ S [.J. t-::: :~.:::;. .:!..~.- *[2 ~ ri'~'!G :-:· ·:::.:-:: Of ,1 :.i.St:!.ce :;'Jl~:,··~ .t:b~~ th:: l':=El::l:"".:'Jl·z Y.'ill v.nc11}'_~1~tetlly cor:·y_~·~ -:~-:'::~~?. 

~rrorn. ?~1~ t:,··.-,)_t.y wa::, Eo-::. b9::-Vro;1 t.ha: le,:;lsl::t"tlL~\~ .:::c~. t. {':_o.·:--;.r:··;_,"":!"·,:-:. 
766 

wnen 1t was l<'.t.ir'ied. The r2.tification by the State was b:' an .A.ct 1!1 r.rC" .. ic.h ·(;h~ terms of t..l1.e tree..ty were not set f'orth. It 

io prob3.'.~!.~') that. interest~d persons presented this mat-ter in auc~1 :rorr:1 -:h:tt th0 law~r;:..Uing po~aar W:?:.s misled,a.ncl an a.ppa:.l tc 

the sense of "justice r .. nd right oL the people of t-1.e s·~.te of 

Sol.!th Carolina will, ir. my opinion, rssul·~ in :il!'lnecUate and prcp,-

er reJ.iG1'. 

You !:.ave e.sked. me to onggas~ to you a rC!llady, That. :portimt 

of you!.- request does not properly ap:.::>l~- tc' th3 n4t.ter:J rcferrod. 

to in th13 rt::solut ion s:..1<b::nittzd. For that re~s~n, it is not ir:-

clud.ed !:f~r-3in, but, e.s tv tb..? .. t portion of' the resolut·i.on as:·:i.c2: 

Y.:.o-;-1 e. legc.l treaty can be n:o.de, I desire to say t:b_at the I~d~:.;:11 

Of:(ic-3, by letter o~ ;r2~nuary· 23, 1896, indicat.:::d to rta that i? .. S""!Y 

::!ettle-::·~e:r::t a:rr-iyed a·~ bet·:r&~n t...'l~ Catawba Ir-d.i.":lr!:J and tl1·~ S~at.e 

o:f Son"'i;h Cr>.rolir.a, sa tisfz:..ctory to th-:: Ind ian:J, tvOu:!.("!. me::t th·.; ~~)~i"'o-,r:•.l of' the off"ice: .. s of t~1e :C~pa:r-l;:.ten~ of the Ic.t(tl~::cr ,e.!ld. 

t!-'~8-t G.:· i-ce tt···n~}, th·:::-·B is no q_ue3·Cion e.s to t.1.e fact t.:n.a·:. a.:~:r 

prol_)?i'l;:t c:>:ecu.tacl t'.Sr3er.::en t 1:-:e~~t ir::5· yc".lr approv~l vd.ll, 1.v·:! t!t~"J~l. t 

c~~~-,~CJit_i~~' "'·~~ ~S·l~;::~:~l-~y ~c~~~~~::~o .~y~~J cf c~~tra~~ ~~:le;~ St.-.•• d. t.P_ .... 1.<11~-'-'2 Ea.• ... l.. .. ; 1.~ a(tcl.~\·,;J•.Jeo. cn!.oil: ...J.y to .. ne c._s-.;.Bt...,cn 

P~r..d. sense of j U3"tic~1 cf ·the le-gislature f'or you e.n e~ df~~::~cf.13:1'~ 

pG:oyle, feeli!:.g t:--~:.·:;. you :b...3.ve a r;ri3var~ca,apyJly to th·:: t.:JY&;ca;t:;n pv·i;~:: of' .... ':l-..3 S tc-.t.e "fc!- c ... rt:lr.:'::iy, and tha stt\t.~::!!Snts l~.r.l-9 hare in 

b.:-.: 2u.b:::d.ttscl t"l..~""j :::.s:~D:Jtio::.s only, in order the.:t yot.~r :pogit:!.on ns.:~ b~ cle2.1:~1~.- t.~.nde;;~st,:)cd and properly dete:'rmil'~ed .• 

Attorney for the C::>. ktWb:J. Tribe of Indians 

o: South Carolina. 

VTa.nh!ng·ton, D.c., 

He.rch 20, 1907. 
767 

If you desire me to do so, I will ha?s the entir<" pa.lny;hl"'t 

tran:Joribed ancl will send you a copy; but it, is probable thr,t yo« 

hc:;r.:J. a copy of the pamphlet in your Office fils:J or tlc-:tt yon can secure n copy of sr~~a. 

0 

SOn?3;or s.r:;e7rt:.rt has in'trocluced in tl:.~ S~:c.:lt.C a.:1d • c· Gloszcoc!: v:::.ll intro~:uce ir. th~ Ro"•s~ '"'Ili i!rlnor·L~.,,k 

~;~curr-ant rusol1.:t"tio::. VIl'lich, :i1" .:;.(;_opta!1 # ..... m~;;- l:a-~-a ~L..:. ... '"' 

<:..ec~ . ..:t-~d beo.:-tr:.g u!)o~: tr.:: fE·::_,_L~e o:I' th:.: Ca·~::.wb:'l Xr!.J.i::.nn, 

vr.!1oa3 ro.s.ar1.•2.ticn of' 600 acre~~ is 8 Ll~l~3 ·n-:;1::-:::r Rcc~c E:lll 

c:1. tbc Ca:ta-:;r"o3. 1 .. i>r0;. 'Ih~ re;;olu•~:lCln :"~.s :i.-:1 r.::2~;o·!1.:::! tr~ 

c. psti·;:ic::~ 3:'!.Ctl&::i. 'by 51 n? t~:r.:--.:: I!:.:i:(.a.::.::3~ ruquest.ing th-~"t. 

-th.:..'-~.' b:J ~:no.d-3: c 5. tiz::n:3 o:L the s:~.a,·C,.). 

"0:1r pre;;en:t conditio!'! iz d:;plor~~bl~J';.s8.:7:l tl"..n y;~·~j.tion, 

j:(. b~:lng: i!r:pos:~ibl~ i"c!" ua to rr~k-s c=. ::;uppJrt en ou1" pl~D.a- , 

e:::.·~ r\:'1e:.. .. ~. t::. on. r!e b3l:le7e i:L r.'l.ad.-:! ci ti:::::)T!:J a.nl~. r£.-:~lt::.v-::-

G-1 ln.r:·rl~ furni:.-;1!ed t\3 by tha St~?.te t.'tpon uh5.ch we c::).::~ ~et·::J..~ 

cur condition ~:1.11 be gr0a ... t:!.:-; ir'~proved ~.nd ne c: .. r!i ·;:~;.}.::~ 

c:t:ra of our!lal vuo in the future." 

'I'llo conc1:i.:r'rent reso.bJ.tion, authol-2zes the G"J..,rernor :~o 

O..IJ)JOint thrae COT.Tmissicnerc, n~ithe-r C,f WhOrl\ ehall be ~. 

TI€~ber of the: gener;~;.l a.~J:'~(!TJ."'olyt -'t.o inve~r~1go.t,3 the cOI!G.itio:r! 

of the Indians, v:i th the vis\'! of rurd!as:i:n.g ctd.d! tlo:n?.: l~.nd::; 

cn?l·;::Lguou:J to th.air rc~:s~arv~._-;;ion to ewn:::ti~t t:1.:: •. n to ll2e ::::.3 

self~--~.r:..!pr;orting a1:i uoeful c itizcns, if th3 pl:~li! i3 c::,nsi~lc:r-· 

e~ foao iblr~. Should such act.ion be ta:~·~:-t j_ t ~ill r~1ea::1 that. 

t.~i."') Cuta.l;ba Jndian3 will n\) long~:. ... be w:..::.~c..s of the S"Gata,1n .. ~t 

~_:.L~ ... b:~.~J_;r .. ~-~-~ .. upo:n ·CJ;~i~ _o·~~ r:s~:tr;e~., t~ ~~:~- \·~:~~-v~ll.l!oG0 .• -l. -~ ~~->· ... :!.IIl..:.'"'.:..""'" tha ... J., ... l.Oulct r~q_t..;J.r..: c: ••• ..:.Pl-•.: opr ___ v ... c._ of 

b;;·:;:·;ree:! ~~15, 000 ~.nd ~20, 000 to pc.rchasa. tb.t: l£;.nd5 y;!:.ic~l t::1e 

~::~g~!:r·t~,~~:~:1~~~f!~r;io ~~~~H~ 1~:!~ ~~:~~~~;~~~;~r~~~~i; !,:200 beir:t_; usG-d for sr:hool :r;ur:pone::>.n 

.~. ...... .;... l·1·.,•.v 
768 

ii' possible ;you and I{r, Francis cor:te down to Cherokee ar.:d :rrcn hsre 

go t<J South Cl?,roli.ria to investiga-t.e the condition of the Catawbas 

r.ith tl:e -viett of e;iving them. the helr> in establi3hing e.nd prote')ting 

"tl:air rig..llts which they seem to grea.tly naad, The best train ou·~ 

f'r.:u ,,'la.shington \7ill be the on3 le::tYing the:-e at 10,45 P. M. ,rac..c~'li:-.g 

Sa.liebury at 9,A,H.,and Ashe-;Hls 2,45 P. H.;leaving Aoheville 8,30 

the folJ.o·~d.ng morn:!..nz reachir..g Ela ~unction at 11,35 a.'"ld C!i:~rol..:a~ c.~ 

12,50 P .H. If you prefer to do sc you could of course go dirc::!t to 

t-'1-a Catc=.wba. reserv-ation but it would be of consi!iere.ble ac.tvar!.'t9.t;:e ·~o 

If you Yii~l b3 un?..11lc to te.ke the trip \7i"thin the naxt 

fc":': weeks, I rd;:s:pc~tfully request and rec cr.mend that I be O.lXC.i'lor1zsd. 

l.nclutli.."'lg t:-v.·reline; and incidental expanses~ to be paid ~ .... or tram the 

fuz:d "Conting!O:nces, Indian Department 1910; of -.hich I have a b:D.~.nce 

of ~43.35 ~~:-~-?--now on hand, that. amo·Gnt beine proba1~ly suffic::ent 

to I>"-7 the exr;ense s of the tr:l!J. 

Very respectfully, 

.):_ ,. __ .·'- .. :: ... \<J_ .... -<-· ... -. __ _ 

Suparintende:r:t. 
769 

CATAWBA INDIANS. 

·. ': SUPPLEMENTAL BRIEF 

G~!dFiN~··.:_ ·~,·; ·''· .... t t..!'l·~.:.-. ;~· i ~.\~::, '"':: ... ~ -~ . -,_. -: ->:·· .... -. -:~T ani in .r.eceipt of the .opinion of the Hon. AttorneyGenei.-a.I of the State of South Carolina, replying to a resolution of the . General Assemblv ad~pted at its session in . ... .. 1907, in which, on page 1, it is stated: I 

Chester Howe, Esq., Attorney for these I~diansT 

has furnished this office with a brief in support of 

the claim, in which he 'sets forth the facts ahd thee 

law governing such matter-S, as viewed 't>Y the 1 claimants. He refers to the agreement or treaty under 

which these lands were set apart to the Indians, the 

Acts passed by the Legislature on the subject~ ~or 

to the treaty made in 1840, and the Act.~ of Con-. 

grei!S concerning Indian affai.rS, and Concludes that 

the treaty of 1840 wa.S void, solely becan.Se not appr_oved by the Federal Government through its agent. 

After making an examination of. such records W5. 

are now obtainable, relating to this question, and the 

Acts· of the Legislature of this State and of · o;n .. 

· gres8; · we are unable to agree. with the ~oncTusion · 

·reached by Mr.·Howe. · · " 

The opinion then refers to certain, records of the early 

history of the. Catawba Indians, the several acts· of the 

legislature of ·the State of South. Carolina relative to said 

'Indians, prior to 1840, ·and. concludes· as follows: _ '/ • .. . . - - - -- -..: ::. -· ... ::- .· .• , - . . . . - • .;.: ..r. __ ::,.. . 

· '"! think :we .may conclude from· the acts of. the 

-~Ia~_'cite_d·'a'!>Ov~ - :_;. ,_,,..,. ·: .·--:·<:.~'r: -~: 

'':· "L .. 'That the legislature at all times claimed and-

_' eierdS'e( the. right. to enact ~ncb laws·~ ~a~g ¥e' 
770 

control and disposition of these Janus as in its judgment was fot" the best interest ·Of the Indians and of 

the State." 

"2. Tha.t the title of the Indians to these l:llld5 

was ne'ler regarded as more than a right of occupancy subject to the control of the Legislature, and 

that after making the leases for ninety-nine years, 

theil" right in the leased lands was only the right to 

have the ~nnual rents fol" their support and this 

right would be eventually extinguished by lapse of 

time." 

The conclusions of the Hon. Attorney General of the 

State are at all times entitled to great persuasive force. He 

is the legal ad\iser of the Governor and his opinion should 

ha\·e great weight with the legislators. But this opinion 

sets forth the reasoning upon which it is based, -and if by 

inadvertence, some matters pertinent to the subject under 

consideration have been omitted, or misapprehended, it will 

not, we hope, be deemed improper to direct attention thereto to the end that a correct conclusion may be arrived at. 

The Hon. Attorney General seems to be in doubt as to 

the Indian title to the tract of land included in the Wyly 

Survey, that doubt being expressed after reference to the 

map of survey and tile references· made to the Provincial 

treaty, in the following words: 

' 

''Neither of these papers show the na.ture of the 

title of the Indi~ns to the land in question, but there 

can be little doubt that they had only the right to 

occupy the lands and 1l8e them for their support until 

their right should'be extinguished." . . ; , ·. ,. 

The nature of Inman. title to lands which were occupied 

by them at the date of the colonization of this country, has 

been. definitely aettled by the highest judicial atithoritj in 

this country. It has ooen so clearly deftned tha;_t when o~ce .. . . .~ . ., . , . . 
771 

3 

the fact is established that certain lands defined by fixed 

boundaries were by the colonial authorities and by treaty 

'\\ith the Indians, set apart for their sole use and benefit, 

based upon the Indian's primary occupancy of the soil, and 

his original right thereto unextinguished by the white men 

who claimed the right of preemption or purchase through 

discovery, that the title cannot in the light of these numerous decisions be questioned. 

There are many such decisions. It is sufficient, however, 

to refer to Chief Justice l1arsha!Fs opinion in ·worcester ti3. 

State of Georgia, 6 Peters, 515. The most cursory examination of this opinion, so often cited in later decisions, will 

settle this question. 

The title having been established in the Indians 

subject only to the right of preemption of the 

colony or the state, we should next consider the act of lSOS 

under which leases were authorized as referred to in the 

opinion of the Hon. Attorney General. Due weight is not 

given to the legislative decia.I".ltion of title in the Indians 

by >irtue of said act, nor to the provisions of the leases 

themselves under which possession was obtained by the 

lessors. 

By the passage of an act authorizing these Indians to 

lease their lands for ninety·nine years, or three lives, an 

estate greater than that gran ted was admitted in the Indians, and that clause of the enactment providing that said 

lease .. "shall be, and he same is hereby declared to be, 

a qualification equivalent to a free-hold, in all cases 

where a free-hold is not required by the Constitution 

of this State or of t!;e United States." 

was intended to vest in said lessees for the term of the 

lease such qtialifkation.s and estate as . would allow. them 

to' fully protect their possessions thereunder, · Bu~ the ~· 

tate so com·eyed wail subjec~ tq th.~ leaBeS, and tit~· l~~ 

wij:hout exception contained the ~O.venants and. a.gTeemen.U. 

admitting the title of th.e Indi~s and providing for ·re_ 
772 

4 

entcy into possession thereunder. Certified copies of the 

&1me show that they were executed for the term of ninetynmc~ years, and contained the follo\\ing clause: 

"and if it should so happen That the rents above 

mentioned or any part thereof Shall remain unpaid 

· for the Space of Twelve months, That after it becomes 

dne and in case no property can be found upon the 

premises \Yhet·eon be distress, or other lawful prosess 

Can be le1ied Sufficient to discharge Such rent rerna.ining due as aforesaid tllen and from Thence it 

shall and may he lawful To and for the Catawba 

Indians or Their sm-eessors or Superintendants Reenter into Sd premises and the same to ha1·e Repo,.:se:'-s and enjoy, a,;; thPir first former estate Right 

;\nd title. anythin;; herein contained to the contrary 

~ot\\ithstanding." 

f'imilar co1·enants are contained in other leases. Some 

~.ru1·ide that tlle payments shall bet'ome due within six 

month:>, and it can hardly be alleged tha! under a lease 

dr:mn in this form, under tile prodsions of the act of the 

legi~!ature, .that the Cat:.nd)U Indians retained only a 

ri;,:.ht to the rent and no interesr in the property. Xor can 

it be alleged tllat the right to the property enjoyed by them 

was one of which they could be depriYed by legislative enactment \\ithout just compensation. 

It would seem to be the conclusion of the Ron. Attorney 

General that the act of the legislature of 1838 referred to 

in said opinion. extinguished the title of the Indians to 

HH'~e lands. But the act irself in terms renders such a 

conclusion impossible. The proviso in Section 1 of this 

act i." as follow::-: 

"P1·ovided that nothing herein contained shall be 

so construed as to impair the interest and' the right 

of the 6a:tawba Indians in ·and to the &"lid lands." 

Tlti~ worcing would seem to prohibit the_construction now 
773 

5 

son;;ht to be placed upon tlie an itself and brings us to 

the year 1:340 at wtich time the lands had been leased under 

terms which were detlnirei_> understood and tbe state 

sought by rhe treat_;.- to exting-uish the Indian title thei·eto. 

At this time the Catm1·ba Indians were living in tribal 

relations, as the_,- are to-d;1_;.-. The.> constituted a. commu-

:r;ity wirh local self-;!orernnknt. crude in form, but satisfa.n,Jry to thrm:-eh·es. It wa:- identical with that of otber 

lndinn tribes reo.ulting from the same contlitions as other 

lndian government:-. managed in the samro manner, and 

transacting- its business in the same 1\":l.'- Ir~ propeny wa.s 

held as t:mumunal pruperr;- belon;;ing to the tribe. A right 

to share in tribal property came by birth '1'1-irhin the tribe. 

They wt>re not citizens of tlw ;::t:He of South Carolina, nor 

citizens of the Cnitf'd States: not :::ubjecr tn taxation nor 

enirled to the p!'idle;:e~ and immnnirie::: ai"isin;; rhei"efro:m. 

It was not their lncarioiJ which fixed their s;-anJs. but their 

r:Jce: their community holding-s and theii" method of life, 

and the laws not only of the State but of the Cnited States. 

Their position was admitted by the State in irs method 

of seeking to exting-uish this title by a tre::n: or agreement 

in conformity with the long p:;;tablisheti customs of selfgoverning Indian communi tie:::; in the reeognition of chiefs, 

and the method of negotiation with the tribe as a tribe; 

and the opinion of the Hon. Attorney Gener-al as to the 

application of the sever-al commonly called "Indian Intercourse Acts" misapprehends the position t:1ken in the brief 

first filed in this ca:::e. 

Powers a..."Sumetl by Congress under the Constitutiou were 

not lodged within the State nnd among thOf:e powers was 

that of regulating "commerce" with Indian tribes. In the 

brief firEt filed in this case, reference was made to the early 

acts of Con~rE:::s relative to Indian treaties. These acts 

specifically provided that they should expire by limitation 

and this accounts for the re-enactment of the Indian Intercourse Ac·ts at various times, up to and including the year 

1824. But the acts were cited for the purpose of showing 
774 

G 

t!Jat t'ongre5~ had assumed and exercised the au.thority 

antl IYas in fa.et regulating the commerce with Indian tribes 

to the extent of the provisions therein set forth. It was a 

lcgi,-latil P <·o~Ji:"t!Uction of t!Je powers of Coni-'Tess under 

this elause of the Constitution and it definitely related to 

lands within t!Je State whether the State had the right of 

preem!-Jtion or not, the terms being so plain that no contrm·er:-:y could arise t!Jereunder, and the assertion of counsel 11·a~ lmst=d upon the fact that if Congress had that 

pu\\.t=t·. which conld not be disputed, if it :l."Serte(l that 

pu1nr, "·hic!J could not be denied, it was not within the 

jH)\\·er of the Srate to make a valid legal ti·ear_v with an 

Intlian tribe while tll:J.t tJ·ibe 11·as living in tribal relations 

a,; ;1 lor·al self-go•erne<l Indian community prodded the legalit:r of the treaty wa:< fJilP"fioned. Let us see how far this 

ha:-: been :;;u,-rained b:· the Comts. In thee opinion of 

.Jusrice :)l'Lean in the C'<l!'e of \Vorcester t·s. the State of 

Ge01·gia. fJ Peter-s. on page 570, the subject of the powers 

under the Con>'titution of Congress and of the States, is 

discussed. On pages 57~l and 580, the general policy toward InJians and reference is there mnde to the exceptions 

which were intended to b€ eo\·ered in the clause of the Indian Intercourse Act referring to remnants of tribes surrounued by whire settlement and lying within the jurisdiction of the ~tates. On the last line of page 588 the question 

is asked: 

"Does the intercou~e law of ISO~ apply to the 

Indians who Jh·e \\ithin the limits of Georgia? The 

l!lth section of that act provides that it shall not 

be con~trued to prevent any trade or intercourse 

with Indians living on lands surrounded by settlements of the 'citizens of the "United States, and being 

within the ordinary jurisdiction of any of the individual states. This pro\ision, it has been supposed 

excepts from the operation of the law the Indian 

lands which lie within any State. .\ moment's re-
775 

7 

flection shows that this construction is most clearly 

erroneous." 

Then follows an opm10n upon this matter holding that 

the clause referred to does not exempt an Indian tribe 

holding tribal relations and being a self-go>erning community from the operation of the Indian Intercourse Act 

.And referring to this subject on page 5!:l~, the Court states: 

· ··\Vh)· may not these powers i:>e exercised by the 

respective States? The answer is because they haYe 

parted witb them expressly for the general good. 

\l'hy may not a State coin money, issue bills of 

credit, enter into a treaty of alliance or confederation~ 

or regulate commerce with foreib'11 nations? Because 

these powers ha>e been expressly and. exclusively 

given to the Federal Government." 

"Has not tl1e power been as expressly conferred 

on the Fecleral Go>ernment to l:egulate intercourse 

with the Indians, and is it not as exclusively given 

as any of the powers abo>e enumerated? There being no exce!Jtion to the exercise of this power, it 

must operate on all communities of Indians exercising the right of self-government; and, consequently, 

include those who reside within the limits of a State 

as well as others. Such has been the uniform construction of this power by the Federal Go>ernment, 

and of every State Government, until the question 

was raised by the State of Georgia." 

The learned Just~ce further states that up until that 

date, (183~,) no State had attempted to make a treaty 

with an Indian tribe, to the Court's knowledge. 

The Indian Intercourse Act of 1834 was a substantial reenactment of the act of 180:!. This act was in force in 1840, · 

when the treaty was made between the State of' South 

Carolina and the Catawba Indians; and whether or not 

these Indians were within what may be termed, for the 
776 

8 

purposes of this presentation, the protection of the United 

States, can perhaps be better ascertained by an examination 

of some later adjudicated cases. The most prominent one 

is that of the Cherokees of ~orth Carolina. These people 

were p-art of the Cherokee Xation who refused to emigrate 

after the treaty of Xew Echota of 1833. They preferred 

to stay in the State of Xorth Carolina, take their lands in 

fee. and become citizens of the State, which they did. But 

while enjoying the position of citizens of the State the 

Courts of the State were not open to them as indi\idua!s, 

and in 188!}, they were inco1porated by a State enactment 

\\<ith the right to sue. and be sued. and all other priYileges 

and immunities gr;Jnted under that act. In the be;;inning, 

their status as Indians had not been questioned. In after 

yea.rs it was. and in the report of the Corur. of Indian Aifair·s under date of June 30, 1a0:J, the question of the status 

of these Indians being raiseu, sen~ral dedsions \\·ere cited, 

and he held: 

"Being governed by tlle above decisions and legislation, this office in its ad1nini8tratire capacity holds 

th:u this band of Cher·okee Indians holding their 

lands in fee, can alienate the same, but the contract 

is reviewable by the Government for one purpose 

only, to protect them from fraud and wrong, and 

having been incorporated a.§ a body politic, with the 

power of sueing and being sued, the acts of this band 

are reviewable only to protect them from fraud and 

wrong.'' 

It will be noted that this assertion of power was limited 

to the administrative capacity of the Indi:lll Office, but it 

is based upon the decisions of the Courts in which the status 

of these Indians and the powers of the United States are 

fully set forth. This power of protection has been conceded by the State Courts whenever the same has been 

invoked. In an action on contract the Supreme Court of 
777 

9 

North Carolina in the case of Rollins rs. the Cher'okees, 87 

N. C., ~~!), held: 

The Cherokee Indians in this State have been 

placed upon the same footing as other tribes by an 

act of Congre:<s passed in pursuance of the power 

gr3nted by the Constitution in reference to regulating commerce with foreign nations, among the several States, and with the Inuian tribes, and their 

contracts made with the plaintiff to prosecute and 

collect claims alleged to be due them. cannot be enforteu against them in a state court without the 

consent of Congress. The jurisdiction to determine 

such matters is louged in the Interior Department 

It is obvious that the Indian tribes are in a state 

of pupilage to the general go,-ernment. and the safet,ruarus of law are placed over them to se~:ure them 

and their propert:'- from the artful practices of 

de;;igning men, the dictate ·,>f an enlightened sense 

of national duty to the weak and defen~:eless of a. 

race mpidly diminishing in numbers. and deemed 

incapable of self-protetction. This polic-y finds expression in the legislation of Congress in reference 

to the tribes and the superintenuing control assumed 

over them for their benefit. 

In the case of the U. S._ et a! "L"S. Boyd et a!, 6S Fed. Rep. 

577, in a suit brought in the Circuit Court of the \\"estern 

District Court of X. C-, to set aside a contract made by 

the Cherokee Indians for the sale of timber on their lands, 

the bill a.'-serting the paramount authority of the guaruianship of the "Cnited States over fhe Indians, the judge in that 

opinion, on pages 579 and 580, held: 

"B11t it is urged with g_reat force that the state of 

North Carolina recognizes these Cherokees as ci6zens; 

that they vote, pay taxes, work roads, and perlonn 

all the duties of citizens. But a citizen of the United 

States takes this privilege a.'3 the gift of the gent:ral 
778 

10 

gove!'llment. It can be acquired only under its laws, 

and in the mode prescribed by it. City of :mnneapoli~ , .. Reum, 56 Fed. 51G, G C. C. _-\., 31. '·Xeither the 

l'Onf'titution of a state nor any act of its legislature 

howe,·er formal or solemn, whatever rights it may 

L'On fer on these Indians or withhold from them, can 

withddraw them from the influence of an aet of congre,:s which that body has the constitutional right 

to pa:-,: concerning them. An3· other doctrine would 

make the le:,-risla ture of the state the supreme Jaw of 

the land, instead of the constitution of the Gnited 

~tates. and the Jaws and treaties made in pursuance 

thereof." L. S. t·. Holliday, 3 \\'all.. at page -!19. 

But it must not be understood that these Cherokee 

Indians. although not citizens of the Cnited States, 

and still under pupila~e. are independent of the state 

of ~orth Carolina. They live within her territory. 

Tlley llold lands· under her sovereignty, under her 

tenure. They ar-e in daily contact with her people. 

The_,. are not a nation nor a tribe. They can enjoy 

pri,·ile;;es she may ~mt. They are subject to her 

criminal laws. :\'•me uf the laws applicable to In· 

dian reservations apvly to them. All that is decided 

is that the government of the l'nited States has not 

yet ceased its ~;·uardian care over them, nor released 

them from pupilage. The federal courts can, still, in 

the name of the L"nited States, adjudicate their 

rights. Xor is this without precedent. The American 

seaman. born a citizen of the Cnited States, or naturalized as such. has extended over him the guardian 

care of the government. and is a ward of the nation. 

The statrrte books abound with acts requiring h.ii 

contracts to be looked into by office13 appointed for 

that purpose. and evef'.' precaution is taken to guard 

him against fr-aud. oppre!'sion, and wrong. Rev. St. 

U. S. 455-! et seq. 

• • • • • • 

I 
779 

11 

There is another consideration. In determining 

t,)le attitude of the government toward the Indians, 

-all Inuians,-the courts follow the action 

of the executive and other political departments of the go,·ernment, whose more special 

duty it is to determine such affairs. u. S. 

v. Holliday, supra. Now, congress has repeatedly 

recognized the distinctive character of these Cherokees as a body,-the Eastern Band Cherokee India.n.il. 

It ha.s legislated for their benefit, and has alwr Jlil 

treated this band as a distinct unit. They are not 

dealt with as individuals, who gradually are absorbed into the body of the community, but as a 

band isolated from, cared for apart from, other inhabitants. See 9 Stat., c. 118; 10 Stat., 291, 700; • 

16 Stat., 362; 18 Stat., 213; 19 Stat., 176; 22 Stat., 

30~; 27 Stat., 1~0. 

In July, 1868, congress transferred. the care of the 

Indians from the treasury department to that of the 

interior; and section 3 of this act expressly includes 

the Eastern or :North Carolina Cherokees. The original condition of all the Indians in this country was 

that of pupilage under the government (Cherokee 

:Nation v. Georgia, 5 Pet. 3); its pupilage continuing 

until released by the government. The statutes quoted show that it has never been released. The supreme court of ~ orth Carolina, in Rollins v. Cherokees, 87 ~- C. 2~, distinctly recognizes and clearly 

and forcibly sustains the position taken above. The 

case of the Cherokee Trust Funds, 117 u. 8., 288, 6 

Sup. Ct. 718, does not conflict with these views. 

That case decides that this Eastern Band of Cherokee Indians is not a p-art of the Nation of Ch~rokees 

with wh~cll this government treats, and that they 

have no recognized separate political existence; but, 

at the same time, their distinct unity is recognized, 

and the fostering care of the government over. them 
780 

1:] 

a:s such distinl.:t unit. This being so, the United 

States have t:1e right in tlleir own courts to- bring 

such :suit:s as may ~ nece,;sar-y to pr·otect these Indians. 

The distrid judge, concurring in the above opinion 

(liS Fed. Rep., 5SO,) said (.3-Sl, ~. ~{, -!): 

The pt·eliminary question presented for our. determination is \\:hether the 'Cnited States have such super-

,·i:sor·y authority and power orer· the ).'orth Carolina 

Cherokees as to become a party plaintiff in a suit in 

equity in this court, instituted under the direction 

of the executive departments of the go,·ernmen t, for 

tlle purpose of annulling or rnodifyin~ a contract 

made by the council of such Indians in relation to 

their lands pnrcha::;ed by their agent with the per 

~~· capita money and removal and sub:3istence 

money to which they were entitled under the treaty 

of ).'ew Echota, upon the alleged grounds that such · 

contract was induePJ an1l pr·ocured by means of circum,·en ti nc', uudne inrl nenee aud fraud, Ol' that the 

conn-act was gro,o::,;ly injudicious and unconscionable, 

and without tl1e approval of the secretary of the interior, having superrisiory charge of these Indians 

under an act of con6'Tess. In the suit before us the 

'Fnited States do not claim any right that encroaches 

upon any of the sovereii,TD powers, duties and obligations of this state. They dairn no police power over the 

Indians as citizens of the united States, or right 

to punish for crime committed within the territorial 

limits of this state. They only insist upon the right 

to appear :u; a plaintiff in a suit in equity instituted 

, in their circuit coUrt to invoke the jurisdiction ol 

ruch court in behalf of their wards,-.to obtain such 

relief as may be granted upon the well recognized 

principles of equity jurisprudence. They appear as 

sovereign of this independent Indian community, aa 
781 

1 .• 

·> 

jl:ll't'!IS ratri:w of 1 his lit•ipit'~S <llltJ iujurp<} I';lt"l'. not 

_YPt inn•sted 11·ith the full r·i;:hts of .\BH't'it·an 1·itizPn· 

ship. anti as ;uat·!lian. by tt·P:Ity ofJiig-:ttiou::-~ of thP:-P 

i;.:-nor·ant and injndicinu,.: ,,·anb. to contJ·ol tlwir 

transactions about land,.: acquired by the tt·eaty 

money. and the dtarit:thiP trust fmH1s bt>stmYPd h.1· 

t·on;:re~s upon a politit·al dPI:;u·mtent of the ;:o,·pt·nment tn be applit'd fot· the henetit of thPse Iudi:tn 

n·stuis que tru-<fl'nt. 

The Cn itt>d ~tatPS ~·laiBt that, unJer thPii· t'Ollstitutional l'"'"''I' tn I'P~lllare r·ouuuerce with Iutli:lll 

trilx>s, the word "t·nutllleiTl' .. emb1~1<·~ tr·:tdP :tttd 

trallk, and :11! t·onti·a..rs 11·irh the ti·ihe5 or indi,·idtt:tl:-

l'olllpo,.:in!-" sudJ ti·ihPs: that so Iolli! :ls Indians rPmain :1 disrinl't pt"'l!'lt•. IYith an existin;; tribal ~~~­

quasi trih<ll oi·;!:tuization. t·p•·oJnizl'tl L.1· the politieal def>:II'tlliP!ltS of thl' ;,:-nl"l'l"lllllt'llt, C'Oil;_'l'P:'S h:ts 

the jJO\\"f'l' to s:t.Y 11·irh 11·hom aud on what tPI'llts th1·_1 

:-hall d••a I. and •·:l!l plan' t liP Ill nn der· the SliJWITi,.:ory 

('Olltl'Ol of an I'X{'t"lltin• depal'tment. r·. ~- L'. Hoi!;. 

tl:t.l', :; \\-:1!L -ll)j: Tltt• K:lllo';l~ Indians. ;; "·all. 1::1: 

1'. ~- 1'. -t:: (;a lions of "'his key, !):;. L ~-. }.-..:~. It i:-

fnrtlwr im-isrt'd 11.1· till, dis:-rid :Htol'lH'.'- that IJ.Y ti1e 

a.-t of .July :!7. l.'li."'. con;,.•Te"s anthol"iz•'tl and dii·PdPd the selTPt:ti·y of the interi01· and the eommi:-sionPr 

of Indian affairs to take the !";llllt' superYisOI-:> dt:tr;_!e 

of the Eastern or :\ot·th ( 'arolina ( 'he1·okees as of 

_other tribes of Indians: :1TJ1l thPI'e i:- a nec1•ssar:· 

irnplieation of J;ower tlt:tt iF. in tht" exPri·iSf> of snrh 

snperYiSOI'.\' I'IWI';!l'. it hl,l'OlliPS neeP!'S:1I',I' to l'f'<l!·t 

to a court of eqnity fo1· N>llledy and r-elief. a suit 

may be pr-o~r-ly instituted b.' snell Rupervisoi·y department in the name of the T~nited States to obtain 

~llh•qnate r-edrP:-:-:. He <·ite:-< 'ns a pi"eCedent a snit in 

pqnity in this ~·oni·t. now pending on further- direl'-

tions, in whit·h till' hill w:t!l fil<'tl by Attorney Genf'r-al 

Garland. in tht-' name of the Fnited States as plain-
782 

tilL fot· he Jllli"J t'"~' of eufoiTin;; an a\\·;11':1 lli<H.le l1.\·. 

:u·bitt-;ttol'" :lj:!:oiured undt>J' a dt•tTetal ordt•t· of titi>' 

court in rel:tti"n 1o the riglir:o: and title of the .;\u1·tlt 

C:nolina l'ht•rnkPes to the laud" entbraeet! within 

rl;t> Qu;dla P.nnt11Lt1·y.-tile lantb \\·hid1 ':u·e the ,..nhjPl't of L'Oilf!'O\'PI~.'- in the pt·e:o:t•nt snit. I am .,f 

opinion th:n. \Yhet'P\'PI' a }J'I\\·er is confen·ed and :t 

dut~· impo,..pd by "tarntt'. PH·r.nhiug- IJe•·'"""·tr: to,,, .. 

t'lllll!'li;;h thP IP::i,..J:trin• ]'lii']•ose is :.!'i\'1'11 b." implie:lfion. "_-\. thin:: IYhidt is within tilt> intt•ntion of 

the ntakt>t·:< uf the :<tatnte is as mueh 

"tature a" if it Wt'I'f' within tile letter." 

lll:lU. ;~ IlmY .. :)."jt_i.:JI;;,, 

\\'it !J i Il I lit• 

C.~. 1'. Frt·eTile suit in eqnir:· no\\· J .. •fnee us was in;;tirut•·d 

h.1· tilt> tJi,..t!·!..r attiii'ItP.\. nn•lt•l' the tlirPI'tion of tilt• . St't-rerar: of the intt>riot· and the attorney general. 

f••t· thP ]'lll']'''st• uf "t'Pkin;.r iu,·e,.;tig·atit•n a,.; tu ri11· 

f:tir·n•'""· jn,..ri··e. :lllfl ~'XJ•t·diPn(·y of :1 t'tllltt·ad Ilt:ttl•· 

h.'· rhe ltHlian t·•>llncil di"po,..ing of timber on th•· 

Tntli:lll l:llltl'< in Tl.i,_ ,..r;ltf' without tltP appt'll\';tl or 

~!11· >'P('J·••t:II'.'. ~·f rite intP1·io1·. It :-eE'lll;; to me t!Jar t!IP 

only quesriun fur tltt~ l'fJlJI·t now to dPtPnuinP 1,.; 

whether tile politi•·al. U••pat-rments of rho• ;..;"''PI'll· 

!ltt'll't ha;n• ~-I t>:.uly :1 nd tli;.:tinl't l,v :rt'1:·o:.,'11 izt"d 1 he 

.;\oi'Th C:ll'olina Indian;; as a tt:ib·ll or~anization Jlll· 

ch•t' the ;;uper,·i:<ory 1':11'\' and :.,'1J:Irdi:ln"hip of tlw 

l:nired ~rates. f••r tiJP t'Ollrt must be ;..;o1·erned upon 

sneh s11hjed by th1.· adion of :<neh d··r•:u·tmenb. T 

han; r••:Hl with some l'an~ the t·ase of the ('bpJ·ok<'P 

T!'ll>'t FmHls. 117 r·. ~ .. ~~S, 6 ~llp. Ct. 118. c·iretl 

and relied upon by eoun:<el for defPrulants. That 

ease ~in'>~ an intet·t>stin~ and in,.trncti,·e histm·_,. 

of tht:> ch•alin~~ of the Cnited f'tatf'l'; with th«: C'ht•J·oke-e Indians. bnt onl." deridf'l'; that the )."orth Cnrolin•J 

('hProkt>t'::l ha•l di;.:;.:oh·ed thPir ('Onnection with thtt 

l'hewkt>t> Xation. anrl werf' not entitlt•tL "-hiiP th~>y 

t·t>main l't>,.itlents antl citizens of Xol'th f'nrnlin:l ro 
783 

15 

a pt·opot·tionate ::<hat·e of the fuuds held in trn:<t h.v 

thl' Cnitt•d ;o;rati'S fo1· the hetll'fit of the Chet·okee 

::\ation. It is tn1e th;tt the ::\orth Carolina Ch•·rokees ;u·e t·itizt•u::; of tuis stat~', and ha\·e nor lu't'll 

recognized as a sepa1·ate nation or tribe, with tt'P'tf)-

making powt•t·; tmt it set'l!IS to me that the men~ fact 

that tlwy at·e t·itizeus of this state does not IH>i't':+ 

sarily deprin• tht•m of tht• le;.:itimate g-uar•li,tn::<hip 

and ca1·e of the l'nitetl States where thPt"l' is no state 

or· national le;.!blation intlit·atin;! stwh a Jllll'J~<•se. 

Thei1· foJ·t'farlu .. rs :1\·ailt•tl tltt•Ht:<elves of a pt·m·i:<ion 

in the tl·eat:· of ::\e"· Ed10ta. and rt•maiuetl in the 

:<tate of ::\01·th t.':nolina; and the t:i\·il laws of thP 

:<tate w1•re exrentlt·•l O\"t•r· thPm from the p"riod vf 

th•~ n·mo\·:11 of the t'her·IJki'P :\arion to their· tt•rTitory 

WP:<t of tllf• ~[i:<sis:<ippi rin•r. The ::\m·rh ('nrolina 

t 'h\'t·okt•es. by rf';tsnu of thPir hinh nut! r"si•l•·nce, 

h•·•·ame •·itizens under 1111• ;.!~-'IJPI"al 1''""\·isions of the 

:<tate constitution, arul not h:: :tn_, spPt·ial l;l\\" ('flllft•t-rin~ the t·ights of •·itizPuship. ThP policy of-st;tle 

le~islntion see111s to ha\·r t'Pt·o~'lliZPd thPir fJHasi tribal 

O!'ganization. and rP~:u·dPtl thPm as a pe•·nlinr c·l:1ss 

of citizens, worth: of and IIPPding- rhP kind!.' stqwr-

\"!>don and (·are of the st:1te and nationnl gover-nments. For the r:ui'J:m:e of set·uring Jhrm ngainst 

the evil con"CfJnen•·l>s of inju•liL-ion" cont1aets \\lih 

more intelligent nntl designing- w1lite men, a state 

:-:tatute w:1s enadnl J·Pquii'in;! all eontl":1d~, l'fJUUl 

to .$10 or more, with l'hf'rokPe Indi:1ns. to be in 

\\Titing, sig-ned in th•~ pi't~l'tH·e of t"·o witn0-'sP.!5, 

wh~ shall subsc·riiJc• the S:1lllf'. 1 Cocle "::\. c.,l?.i::i3. 

Thi:i law of the stnte imposed npon them a restriction which wns not imposPd ·upon other ('itizens, except as to tl":1nsactions roming within the stntute 

of frauds and a fpw othrr f·ases. On th(' :?d day (If 

,Jnnuary, 1~-ti', ".\n ad i_n fa\Or of the Cherokee 

Chief .Junalu:-:b'' was duly .._.nnc·trd an1l I":1tified by 
784 

1(} 

the legi:-lalut·e of this state, cuufening upvu hilll 

all the rights of citizenship, and directing- tht• st>cretary of slate to i,..::;ue a grant eoun·yiu;..:- to hi111 

iu fee ::;ituple a r;ilua!Jil' t rad of lautl iu ( 'herok•·•· 

cuunty, without the pu1n•r of alieuation by tlt•t•d; 

and it was lleltl in this coul't tllat snell n::-;tridiott 

upou the powt•t· of alit•twtiou was nut in•·on:-;isteut 

with th•• t'i;!ltt:-; of cirizt>n:-;hip. ~tuytht~ r. Hent·.'. 

-H Fed. ili:J. ~t·e, abo, Eells r. Ru::-;:-;, li-! Fetl. -!11, 

1~ C. C .. \. ~u:-.. Tht> political Jepartmt•ut:-; of tlw 

federal goret·nnwnt have t:ertainl_r recognized and 

trealeu the EastPrll Batlll of Ch••rokees as a qua:-;i 

tt·ibal or:;au izatiou fot• Stfdal anu UIL--illi'S.'< ·JlllrptJSI.'S, :llld lt;lre llladt• libet·a[ appl'OJli'iations of 

tuo11ey, appointed l11dian agPui'" to t·e:-;ide atuot1g 

tht'tll aud l'tllplo.l·e•l dlil:ieut Utt';tn,.; 111 l'nlighten their 

tuin•b, intTl';t:<e tht>ir coutf•n·r:-;. anti gu;lnl tht·iiJ 

ag;tiust tilt' lllJIIl'!uu:-; coll:<t'•Jllt~n•·es of tlwit· ol\"11 

i:.:noranl"l~ and iHdiscrPtion, a11d the fratub. ag;;t·e:-;-

:<ion:-:, and \\T•m:.,r:--: of unsrrupulous "·hire lllell. Tlw 

a.-r of ~.:un~n·ss of ,July ~~. l:'lj:-, in I'X['I"t'"" tPrlJI,.. 

l•l;lf·l·d the111 in tit I' ,..,uue situation towai·d,.; thP ;.!"'-

•·rntnent a:-; other trilws of Indians. I am srtvn;..!ly 

indinet..l to the opinion that the ad of eon;.:re,.;s J·t·-

storetl thf'm to tliPir fot·mer tt·ibal relations as wartls 

of the Cnitetl ~tatt'>'. suLj•~t.:t to their control, <illtl 

entitled to their l'at-e aut..l protection. The rPlation:-; 

of the l"nitl·d ~t<ltt.,.: to all fndian tril~ are lltJII' 

l'l'!-,'lllateJ hy ;td~ of I"OllgTP:<S. aut! nqt, as fot'lllt'd,l" !J.1· 

treaties. l". ~- e. Kagama, 11~ l". ~ .. :~j:J.;~~~- I) ~up. 

Ct. llO~. 

By numerous ads of eongress, tht> lt>gi!"l:lti\·e department of tlw ;.:-o\·l'rnment has re~:o;_,'1Jizefl the 

Eastern Band of t ·heroke-e Indians residing in Xorth 

C'arolina as bein;.:- under the supei·\·isot·y cat'l' of th•~ 

Cnitetl ~tatb. 

• • • • • • • 
785 

17 

I will say, further, that I am strongly inclined to 

tlle opinion that the action of the secretary of the 

interior, the attomey general, and district attorney 

in procuring, hy pr01.:edure in this court, ext..'eution 

of the new deed under which the Easteru Band of 

Cherokees now hold their lands in fee simple as a 

corporation, neither expressly nor by implication relieved the united State:; ft-om any obligation of duty 

irnpoS(.-d, or wah·ed any power confen·ed by the constitution, treaties. ot· acts of con;..'l-ess. Eells t•. Hoss, 

Slljil"tl. 

• • • • 

In <lll opmwn retHlen>tl hy the cit-cuit colll·t of appeals, 

fourth cirnLit. in the same ca,.;e. it was ::;;.tid 1~:: Fed. Hep., 

541' ;j;);) .. !_ 3:-iti-1}) : 

The etfort to :3how that the Eastern Ban1l of 

Cherokee Inlliau,.;, in dispo,.;in;! of the timbet· in con· 

tt·on~rsy, and in making the ClJ!ltract with lloyd, 

acted as a corporation created hy the laws of the 

state of Xot·th Carolina, is without force; for it is 

well settle1l that neither the constitution of a state, 

nor an act of it:; le;;i,.;latut·e. can Jn·evPnt the appli· 

cation of an act of con~'l·e,.;s to the Indian tribes re· 

si1ling in the states. but subject to the control of the 

general gO\·ernmen t. To hold otherwise would be 

to make the constitution of a state, and the laws of 

the same, the supreme law of the land, instead of the 

constitution of the Cnited States, and the Ia ws and 

treatie; made in pursuance thet·et.~f. Cit.v of ~liuueapolis v. Reum, 6 C. C. A. 31. !)li Fed. 571j; U. S. v. 

Holliday, :; Wall.. 4l!l; Wot-ce:;ter L ~tate of Georgia. G Pet. 51:-i; Rollins v. Cherokee Indians, 87 K. C. 

~2!l. The COnl,TJ."t.~S of the united States ha.<! repeated!)·. since the treaty of ~ew Echota, recognized the 

Eastern Band of Cherokee Indians as a. distinct por· 

ion of the Cherokee race,_ and has dealt with them, 

not as individuals. but as a band distinctive in char-
786 

• 1& 

acter-, dependent 011 the United States, and entitled 

to the :Jid and protedion of the general gover-nment. 

~~- :::;tat. c. llS; 10 :Stat., ~·n, 700; 15 Stat., ~:?8; 16 

Stat.. 3G~; 18 Stat., ~1:3, 41:.!; Hl Stat., 1:30, 176; :2:J 

St:~.t., 3~~; ~7 St;.~t., 1:2~. TLe act of July ~!), 1S4S 

( ei tet.l abo\-e in !l Stut.). treated ::~aid Indians 3..'1 unJer he e:u·c of the Dnited Sates, n.nd provided that 

the sum of mon ey tl Ut~ them u ntler the treaty of ~ ew 

Eehota sho.uld b·~ held in the United States ti·easury 

intlefinitely. anti that interest thereon should be paid 

them. 

• • 

This shows th;lt the original eundition of the 

Indians iu rllis l't)Ulltr_,·-that of pupil:J.~ e under- the 

go,·ernment- ha>: not bt'en releaset.l, so far as this 

E:J5tern Band of C!~t.> kees is concerned. It thus 

appears th at the pt>l it ie;li departmt•u ts of the gov· 

ernment ban~ n:cv:-.'11i zcd these Indians as con stitut· 

inf: :1 tribe.-at least. within the meaning of that 

word as it is n~tl in the constitution of tl.J e United 

States; auJ it is a rule of the courts, in matters of 

this kind. to folio,,· rhe action of the e..::ecutiYe and 

tlre department~ whn,.;e duty it is to det er-mine such 

affairs. L. S. L". Holliday, :3 Wall., 407. 

\Ye are unable to agree with the court below that, 

beca~se tl.Je Dnitetl Sl:ltes sought tire aid of a court 

of equity com:eming the alleged contract said to 

ha,·c been made by Boyd with the E:~.ste::-n B:llld o( 

Cherokre In.li;lns, it ,...-as the duty of the court in 

the absence of fraud or· unfair dealiu~rs in the makinf; 

of the con tract. to hold the same valid if the consideration paid for the timber mentioned therein was a 

fair and adequate· price for the same. It must be 

kept in mind that th e complainants below insisted in 

their bill that the enitet.l States had rerued to assent to tile arr:lllgemen ts made by the council of the 

Eastern Band of Cherokees with Boyd. and that, 
787 

19 

therefore, no contracthad, in fact, been made for the 

sale of the timber mentioned in the bill. Finding 

this to be true, we think it follows that the defendants were remo\ing said timber unla."~'>,fuJly, and 

that, therefore, they should ha>e. been restrained 

from so doing, and perpetually enjoined from further interfering with the same. It will not do to say 

that the Indian tribes subject to the control of the 

department of the interior may be permitted to dispose of their property, real or versoual, without · the 

appro,·al of that department, or over its protest, lUI 

in this case, and that the courts of the 'l·nited States 

will sanction sueh proceedin~, and decree them 

to be valid contracts, in the absence of fraud or unfair dealing. We mu~t presume that the department 

:had good reasons for declining to appro>e said sale, 

and we think that, in the absence of fraud on the 

part of those repr~enting it, its refusal to sanction 

negotiations of the character here in>ol>ed is conclusi>e of the matter. To hold otherwise would produce great confusion, and would transfer from that 

department to the courts most of the controversies 

relating to Indian affairs now properly disposed of 

by it; thereby fostering litigation, and producing 

c-ontinuous strife among the different Indian tribes. 

The conclusion we reach is altogether independent 

, of the" questions raised concerning the power of the 

Eastern Band of Cherokees to sell and transfer the 

land conveyed to it by William Johnstone and wife, 

as, either with or without the restricti>e clause in 

the deed from Johnstone and wife before mentione,d, 

we find that the United States ba\"e the power to 

supervise and control the affairs of those Indians, so 

far as said land is concerned. 

As to the general questions invol>ing the right of departmental, control and the status of Indians thereunder, 

we refer to 
788 

Johnson vs. Jfcin to:;;b, 8 \-\"beat, 543. 

Cherokee X:-t rion !.78. Georgia. 5 P eters 1. 

·worcester .-s. C~eo rg , 6 Peters 515. 

Gni ted States -t·.~. Holliday, 3 n ·all. 407. 

The Ka nsas I ndians, 5 n ral!. 131. 

C. S. cs. F orty-three Gallons of Wn iske: !:l3. D. S. 

lSS. 

Fnited S tates rs. Ka gama, 118 U. S. 375. 

Chocta <;\· :Xation rs. u. S., 119 u. S. 1. 

This brin gs us to the sole quesion of wh et her or not the 

.,nce of defini te action by the federal authorities v.'ifu 

r elation to the CaUJ.wba I ndians, places those Indians in a 

positi on wher e the same cannot at this time be in>oked, or 

wbetbee it was not necessary -to invoke the same at the 

ti me of t he treaty ma de in 1340. 

If these claimants had been citizens of th e l'nited States 

if th e question iu,·oiHd a cqujescence in a judicial or legis· 

la ti>e determination between citizens of the united States, 

the question presented would have been emir-ely different 

from tile one now before us. But we have upon. the one 

hand, a dependent, illiterate, unlettered peopl e, clothed with 

nou e of the powers and but few of the rights of citizens ; a 

people to be prot ected not only from the gr eed of th e white 

man, but fr·om themselves. Orer such a people the go\·ernment has seen fit to throw her mantle of protection and the 

mere fact that the Catawba Indians ha>e been peaceful, 

that they a ttempted to comply with eYery state law, 

that they have not appealed to tile federal· go>ernment for 

protection in speci fie instan ces, that they have not been 

guilt: of such acts as demanded the interference of federal 

troops and thereby the making of federal treaties, does not 

in any way change the law its.elf 01 their rights in the pre--

mises. It increases tllei; equities lrut does not withdraw 

them from the protection of the Jaw itself, and this law, 

pro\ided as a prereqwsite to the transfer of the title of 

their lands the appro..-al of the general government prior 
789 

21 

to the transfer, or at the time it was made. Such is the 

construction of the Courts, as we see.it. 

· The opinion of the Hon. Attorney ·General refers to a 

request made by his office to the Secretary of the Interior 

and to the reply reeeived thereto, and among other things, 

sets forth a portion of a letter written by the Commissioner 

ot Indian Affairs to Chester Howe under date January 23, 

1906. This letter or the portion quoted would seem to indi· 

cate that the Commissioner of Indian Affairs had decided 

and determined the legal status of these Indians to b~ 

what may be termed State Indians, but a consideration of 

the circumstances attending the writing of a letter coupled 

with a knowledge of the method of transacting business before the Indian Office will e:xi>Iain the same.· 

The Secretary of the Interior exercises both administra·. 

tive and judicial power. The administrative officer in In· 

dian matters is the Commissioner of Indian Affairs. Judi· 

cial questions are referred to trained lawjers who comprise 

a portion of the force working under the direction of the 

Secretary of the Interior but who are really carried upon 

the Department of Justice rolls, and constitute the force 

of the Assistant Attor-ney Genernl's Office for the Department of the Interior. 

The ietter referred to did not pass through this office, 

and in order that no misapprehension may exist as to the 

meaning or understanding of the same on the 31st nltimo, 

a letter was addressed to the Hon. Secretary of the Interior directing attention to the report referred to by the 

Hon. Attorney-General of the State a. reply to which having 

been received is set forth below. 
790 

22 

II'. B. :r. w. :a:. 

DEPARTMENT OF THE INTERIOR. w. c. P. 

WASHINGTON. F. W. C. 

D-2259 February 5, 1908. • 

Mr. Chester Howe, 

Attorney at Law, 

Loan and Trust Building, 

Was~ington, D. C. 

SIR :-The Department is in receipt of your letter of the 

31st ultimo, in which, as Attorney for the Catawba In· 

dians, you request certain information relative to a report 

concerning ~id Indians rendered December 20, 1907, by 

the Acting Commissioner of Indian .<\.ffairs. 

In reply, you are advised that the report of the Indian 

Office referred to above was rendered with reference to a 

letter dated December 16, 1907, from the Hon. J. Fraser 

Lyon, Attorney General for the State of South Carolina, 

which reads in part as follows: 

I desire some information in regard to the legal 

sta~ of the Catawba Indians in this State, as 

viewed by the United States Government. I am desirouS' of learning whether there is any special protection, or general protection given these Indians 

nnder the laws of the United States, and , whether 

they have received any aid therefrom. I would also 

like to know whether they were ever included in any 

treaty' made between the United States Government 

and the Indians. For some years past, this State 

has made appropriations to these Indians for their 

maintenance, an~ it seems has dealt directly with 

them for more than a century. The Indians are presenting some claim against this State at this time, 

and it 'is my desire to familiarize myself with their 

'le~l status before I advise the legislature ·on the 

subject. 
791 

23 

It will be observed that no reference is made in Mr. 

Fraser's letter to any specific claim. . The Department was 

not advised as to the nature of the claim, if any, which 

was being asserted by the Catawba Indians. It was not 

understood that such a claim had been submitted to the 

Secretary of the Interior nor was there an appearance of 

the parties in connection therewith, either in person or by 

attorneys. Under the circumstances when said report was 

received from the Indian Office, -it was forwarded to the 

Attorney General for the State of South Carolina merely 

as a matter of historical and general information and not 

with the intention of passing judicially upon the rights of 

the parties or of expressing any legal opinion concerning 

the same. This information is furnished you in order that 

no misunderstanding may arise in respect to the action 

of the Department in connection· with said report. 

Very respectfully, 

JESSE E. WILSON, 

A.ssistan t Secretary. 

Through the Commissioner of Indian .Affairs. G. W. W. · 

The foregoing ·letter bears the initials and appro'l"a.l of the 

A.ssistan t Attorney-General ·and his assistants. 

· With regard to the compliance of the terms of the 

Treaty of 1840 by the State, the recordS before the A.ttorney 

General in rendering his opinion ought to be concltiSive, 

but there is one fact to which attention should be directed. 

Alter the pa.ssf!g_e_Qj the .A.ct.-.of 1 83~, a number of leases 

were e.:t_ecuted by the Catawba Indians for the remnants of 

their lands then in their possession at very low rental, appro::timately one cent per acre per year_ These are the 

only leases on printed forms which_ we 'have been able to 

find and cover a very limited a~a and are few in number. 

They do not contain the covenants set forth in the original 

leases, nor do they include cultivated ·or improved; lan?s, 
792 

24 

but cover a rery small area of broken country, not susceptible of profitable cultivation. 

"Vter the negotiation of the Treatv of 1~40, the Catawba 

Indians were without a home until about 1842-3 ,.-hen it 

appears that the $5,000 provided for in the Treaty was used 

to purchase the leasehold rights upon a piece of this rough 

or broken land. 

There is no direct showing that the money was paid in 

full. but the pre~umption is fair that it was, but it was the 

duty of the State to conser,·e this fund and to expend it in 

a pro,·idenr manner. The indications are that the 620 acres 

pun:hased was lanrl whieh 'ivas h~ld under an annual 

rental of approximate!~- :$tj per annum. It was wlwlly unimproved at that time. therefore no portion of the ~5,000 

could ha,·e been figured as· paid for improvements. At six 

per cent. ba:::ed on the reo ta I, the value of the lease so 

purchased n·ns $100. The expenditure of this $5,000 for 

this purpose does not indicate that the care and judgment 

exercised was that which would appeal strongly to the 

Legislature of the State in dealing with its incompetent 

,.·ards. 

This is not stated in the spirit of critic}sm, but for the 

purpose of bringing attention to a fact, which, in connection with the others stated, are worthy of consideration 

in this matter . 

.. There should be a ·record of the proceedings of the Commissioners under the Act ot 1808, but we are unable to 

find any such record. It may be among the unindexed records in the custody of the State, but there are, records 

showing transfers of the lease hold rights showing the consideration therefor and indicating the values at which these 

were held from 1815 to 1840-and it is apparent that at the 

date of the treaty of 1840 the Indians had a yearly income 

which would amount in five years to more than the full 

consideration promised in the treaty. 

TI--e have endeavored in the foregoing brief to 1 support 

the contentions originally presented, not with any idea of 
793 

invoking federal interference in the protection of your 

people, but on the contrary, for the purpose o~ presenting 

the question clearly to the authorities of the State, to the 

end that if they deem it wise, either the courts might be 

given authority to adjudicate the matters by the State 

Legislature, or such other appropriate remedy as in the 

wisdom of the state officials might be deemed proper. The 

people of South Carolina have been for many years your 

friends. You hav-e given to that state an allegiance based 

upon a high regard for it and for its people. The solicitation of any federal interference would, in our opinion, be 

unfortunate. and we ha\·e carefully refrained from any suggestion as to remedy, because our position was stated at 

the time of our emplo~~:uent as that of an attorney only, 

and in no other way could we efficiently serve you. \Ybile we 

are compelled to disagree with the conclusions of the Hon. 

Attorney General of the State, this is merely the lawyers' 

disagreement. If the subject is one which should be judicially determined, the legislature will undoubtedly grant 

that privilege. In our opinion it should do so. A complete 

adjudication of this question will result in settling all disputes greatly to the benefit of everyone concerned, and the 

opinions expressed herein are in tended as argumentative 

and for the consideration of the proper committees in the 

preparation of such legislation as they may deem proper. 

Respectfully submitted, 

CHESTER How-E, 

A.ttOrney for the Catau~ba. Indians. 
794 

i.and 

~.. v!ltr.::.cts 

8'.:90-19::,8 DEPARTMENT OF THE INTERIOR 

UNITED STATES INDIAN SERVICE 

Cnte~bs Indians o! 

outh ~urolina. Ghcrokce, :orth 

~i r: 

...... 

0~· 

v~r li~u.g 

s nd ~u~c investi CKtiJ~ cs j 11·ected b~ v!iice let~cr cf i:ov. . 

1910. 

Location. ~he r~c~ vati0~ . ubout GZO ~~~ 0s , li ce o~ the r:ect 

ba~k o~ the ~~t~~b a river, ~h!ch i~ the e~st bou~ct~r~ of Yo~k 

r&il wa~, ~nj alEost due e~st ~~the stati on ::nc~~ u3 Le s l ie. 

rural !:!llil r out e !·ror.l ~.oddy runs s.cro~e tl:c re serve.tio2:, hence 

J oddy is t he pos t off ice. The rt:servntio:!: is be st Yenciled by tcc.:.rn 

~reo 2oc~ a111, as that is the nearest point here t eans, hotel 

ncconoodations, et c.,can be h~d. 

?opulativn. (~co exh ibit~). The list of parso ns constitutir.g the tribe furnished b;• ~he officers of the tribe hc·;.s ::1 

heads of f~milies, 97 persons de"cedinc; fror: Indian oothers, e.nd 

~ udd.itionul ir.dividne.le descendine :fro-r:: ·r;hite rn oth e~s - :::uking 

110 in all which the~ !eel s hculd hcvc t ribal reccg~!t1o&. ~he~e 

sre all es ident ~ o~ ~outh ~ar ol ina, ~n or ncar c ~eue~vctlon, 

but the o~ ficial recogn!tion o~ which the : tate eprropriution is 

distributed is confined to the 9 7 i~diviJuals llescendi!lt; fran Indic.n rn:.others. 

~lbltG 

July l, 1993 

House Hearinp • H.R. l399 
795 

lt h~s long been the rule to gi".-e recognition OI!l;r to children of Indian mothers, ~d the State has rather adopted the rule. 

The explanation is that such a rule is ab0ut neceosary to protect 

the enrollment from hav!nc illeciti~te ~hites chart,ed to it. ~Tom 

;-;hat I knon of conditions in connection 1"1ith the Eastern cherokee 

enrollnent l nust sa~r the rule :!.s not unreuso::J.ab::: fow:ded . 

... s the ::.tate naturall~' objects to distributing r;hat it terms 

gratuities to residents of other states, the official roll includes 

no Cata<"Jbas living in other states. This rule cas beer: en!'orced 

as against pupils in Carlisle school, as ·:;ell us real nonresidents. 

There are a few Cata·:1bas a.I:long tee Eastern i.l:erokeeo, but 

all are of part Cherokee blood but one and have been recognized 

and enrolled here. ~o!!:e ethers live ir. o::.:laho!~£t., and so fur ~s ! 

could learn they are not admitted to rights the::e. b. !::ew live in 

other states. ·:rhe Secretary agreed to \'lOr], up a list of nonresidents and zend me later, but I h~s careful to advise them that 

such nonresidents should expect nothing by reason of tho list being 

thus made up and submitted. 

I inquired as to the famil;" of?. H. i:!ead, of ~·arcingtcn, N. !.:. 

who~e letter of January 27, 1909, 8820-1909, is found in the file. 

This rarni1y is we11 knor.n to the tribe, but have been ab~ent over 

20 years. It was clc1I:Jed that both liead &nd his ~.-ife ure part 

Catawba blood, doubtless so~ething less than one-half degree • 

.Olood: This little band clcic to be -ver;,· largely Indian 

blood, and point out soveral feoilios as being full blood. It is 

propable, hc11ever, that there are ver7 few real full blood (;a tawbas left. On the otherl:.ar.C. this is not en agcrecation of mixed 
796 

blocU-3 ~:r ;. nf to rnu into.:i~ a t:-ibal o:-can:.::ati on fo=- the bcne!'it ~ to 

cor:1e t hGreby. 'l'he la rge ::J::.jorit;r are so nearly full blood as to 

retain the Indian charectcristics, and b:,• rennon t herco:" they huve 

retc.ir.cd. ::-.cir t r ibal li.:'c and orgu.z:izuti vn as n n.c.ttcr of choic e, 

even thr ough the !:1~r. dr ed years c f tribt;lat:cns. ln con3 i deri r.g 

· ~r.eir petiti:;ns the g ove Ynrr.ent should r eg:!.:-d then euch [!.S if ttey 

\':ere full bloods. 

The band c laims t c have no admixture of color ed bloou . This 

i:!IS.Y not be exect, judging we r ely f!'oo ~he coopl exion of o!!.e or 

two f um!lies , but if there is co l o!'cd blood i t daten o. n~:- :re a rs 

b~ ck , n&d is qpit e lioited i n scope . lt is really remarkable to 

wl:at extent t he;,; have kept the!:!selv es alcvf t he colored popula t ion . 

l! fle ; a r e wi:o l ly cu rr- ounded by a colo!"'ed. r: vpulat ion . b u t h&ve seeoingl:: ncth:inG to do \\"i th :r..crr: . This is ::ot by r e u son of ar.._:,: :'r ic -

tiGn , for all see~s plc n2 ant encueh. I t sce~s to be s icply t he 

resoluti cr of the little band to k ee p c lear of the co l o red population f or t!:eir own v:e lbe!r.g. Ttis one thi ng has done enoc h t o 

retain the r espect and s7mpa thy of the whi te po pulation of the 

vic.init;r. 

I hear of numerous inntanoe s of a r.crthless class of whites 

mixing with the bond, and there is aople eviienoe that ny members o! the tribe mary whites . In fact, it i s about r.ece <;sar;• 

for then to oarr;.' outside the tribe b;" r eason of its li:::ited numbers , and all left is the lev; c.s~ of \o;hites with >:hich t he:,' ceer:t 

to a ffi l iate sooenhat. 0n t he \'I hole the.- have maintained a rathe r 

high leve l, considering isolati on nnd enviro~~e nt. 

The gonP.ral h~ nlt h o: this bn~ d i s rcoarkubl~ go od . 

I found no indi ~tion of t ub!l rculocis, :C.ot gh there r:.ny be ;, o!:le 
797 

as nzy op,:ortunit~:.es for obne::-vntion ;7ere lir:lited. Ilcither could 

l learn of any much eJe trvublc, sc co~.on to must Indian co~~unities. il. p~sician is er.>ployed froc the state appropriation, but 

on v:hat terms I did not l ca::-n. ~he locali t; is a heathftll one, 

and ! uld l earn o~ no ailrnents ex~e pt t~o sc cornon to all classes. 

! s :1w a :::'er; -!n\!.i v-:du!!ls :.:ho-.:ir:c unurJua.l sallovir.eos, and cskcd 

if l:!o okworm wns known s.r. ~g tl:eo. The explanation was offerrcd 

that thecc ir.dividuals were adictcd to the use of morphine, and 

no lwoj{'::orm \'las known. It is probable there cay be hook"::orm, 

hor:eve r. I observed no ir.di0ation of loathsoce diseases frequent 

with Indi&n cor.~unitius. 

It is said tho non C.rinlc whenever they can get liquor. As most of ~outh t.; arolinn is nor; with!.n tt.e 11 drJ7" belt, and 

as it is doubtless dif:!'i~ult to cet Equor, I W!l c~' the opinion 

dri~kir.c is not practiced to ar.y great extent. 

Sexually, the•' cave doubtless been c:. ven to lapses co1lll:lon 

r.ith Indian com_ryunities exposed to the other races. 3ut I could 

learn of nothing that would class then as nuch 'lioo:-se then the lower 

class of \7hites of the vicinity. 

Language: These people have all but lost their own language. 

The older ones still can use the Cata~ba, but the •ounger ones can 

net. and it has entirely gone out of use, the Er.glish taking its 

place. This is not so cuch the result of schooling as that the 

band is too limited to keep up its language in the midst of English speaking neighbors. 

?.eligion: In religion these people are very larcely ~ormon, 

but accept and abide by the iloodru!'f "revalation!.' of 1890, and are 

not poligamist::. The ?resbyterian church once held quite a folloTI-
798 

5. 

1r.g, and does so!!lowhat yet, but 1 t hv.s about succur.Jbed to the l;ormon. It scecs the ~rnnon church sent rnissionv.ries to these Indians oorne 20 or 20 yev.rs ago, and ho.ve ~intained v. rnission there 

most ever since. The mission was closed a few conths ago, but 

v:hether perr.anently I cou:!.d not leo.rn. 

The co=.uni ty have v. little church on their reservation which 

is genernlly regarded as a.Mormon church, but is open to all denocinaticns. 

Integrity: In the !!lllttor of general integrity, observing the 

law, and peacefulness of the coccunity, it ranks very high. It is 

e:aid that only about one of their collll5unit;r ho.s ever been before 

the courts on a crirninal charge, and thv.t we.s only as an accessory 

to a crice. 

It is probable these people ere as carefull of their good name 

in oatter of credit e.s can ~e:!.l be found. ~hey go in debt, and 

doubtless needlessly, but the;" !!lllnage soce ~II;' to discharge these 

Gebts. They quite pride themselves on such virtue. 

Legal ~: The Catawba Indians are not citizens of South 

Carolina or the United Etates. rhe state of South Carolina has 

assumed sovereign ri6hts over the tribe and its former landed 

rights, and the Federal governnent has never interposed obJection, 

and in such way the ~tate has exercised guardianship over the 

band, and the tribe has been in the position of wards of the State. 

The individuals are amenable to the criminal la~s of the 

~tate, but so far as I can determine it is probable they have no 

standing or status in the civil courts, either individually or as 

a tribe. There seems to have been only one case as :·ar back as I 

can learn where any individual got into the civil courts, and that 
799 

5. 

v:as in tho lur:er court, in a controversy over a horse. The ~:h:!.te 

man doubtless recognized he had no right to the animal, and the 

esse may have been settled outside. .At =~· rate the question of 

the Indian's civil rights was not brought out. As a tribe there 

has never been an:· thing to cau3e discuosion of the legal rights 

except t~ nutter o:' their reservation claims no\-: being urged. 

It seems to have been their sole purpose at all times to so 

demean themselves as to give rise to no litigation, and being a 

peace-loving people, there has been no occasion to test their 

rights • 

.o.bout 1830 to 1s.;o several of the southern states dis~ualified all Indians ~s holdees of real estate, or of acquiring such 

unde::- tho state lu~·:s. I ~ not sure as to .South Cnrolir:a, but I am 

rather o:· the opinion such would be found the case with these IndianG r:o-r.·. but like ether legal c.tUestici:s, there ht~s neve!" been 

any CE.se callint; such in question, hence no one kz:ov:s 6.efinitely. 

llone of the band has ever held real estate individuall;•. 

Tribal organization: This tribe has maintained a tribal 

organization fer all time, so far as can be ascertained now. ~d 

the :Oatate hes seemingly always recognized their tribal cheracter. 

Before the to-called treaty of 1840 the ~tate at ell ti~es leeislated for then as a tribe, and Tihile there nay have been one or 

tl"lo lapses of annual appropriations. the State has always legislated for then ~s a tribe where legislation occurred. 

~'or nan;;' yec.rs the State has muintnined a state .O.gent for ·the 

tribe, his duties for many years being confined, \~hol2.y or about 

so, to thnt of mere disbursing egent. 

~~e present organi~ation consists of a chief, ucsistant chief, 
800 

7. 

secretary, and various co:citteea. I did not under~tand there was 

anJ legi~lative body, but there reall~ ha~ been nothinG concerning 

nhich to legislate. ~hio organization seeca to control their internal affairs, furnish tho ~ant a. list of individuals on which 

the distribution of ~~ds is made, und various otter dutieo. ~he 

le.st election was some s!x ~~ears ngo, when 1: • .1. R..'1rris \·:as nru:1ed 

as chief, o.nc as I understand there will be no other elccticn until the tribe become C.issatiofied, or until a vac~cy occurs 

throur,h some cause. 

cchooling: For tho l!>."t 20 ;:;-ears, or about that, the State 

has rnr,de a ~mall appropriation for caintair.ing a ~chool. :i'he 

anount is no~: ~20C per anur:l, and it keeps the school open c.bout 

~ix nonth8 of the year. The &vcr[~e ~u.~s !roc about ZO t~ 25 pupilz, 

or about the er..tiro schocl populut!c·n. .C'ron "the bost I could learn 

this i~ ro.ti:er an inferior schc::-1, but tr.e:r seem to profit ereatl;r 

t;;· it, and seet:t stai~fiec ar.d grateful. :O:ost of the ~·ounc:er ~rene ration rc,ad an<l r.rite, b~t the older onea do not. 

SoMe years ago a !e~r of the children vtere brought to this 

school, and about seven :reers ago five r-ent to Carlisle. ~ow there 

are none in an:r government school. Those going to Carlisle speak 

well of the school, and the people generally speak ~ell of it, but 

t ::cy have the Indian reluctancj· to send. ~l~oir chil-J ~~r:. r,· 7::.~.· :'ru11 

hor:!le. I also reali::ed that they fear of losing their girls when 

sent a~e:r to school, as they &o~e tic:es fail to return - carrying 

elser.here, or take up occupatio:co ••hich keep thern ar a~· free: the 

tribe. ~s the tribe stands in dancer of becorning e~i:cct trxoueh 

decre~;.se of Indi&n moth.,re, the:' neturall; oppose an;" tl:ii:g that 

?:auld increuse ti:is d:-.z:.ger. 
801 

::. he or.l~' cor-r.c!lC=.~ :::. : cun r:uke as to the future of the 

schocl v.'ork v:ould be 1.h.s.t tCo e ffort to GCt z ooo in Carlisle 3houlG. 

be resumed, =C. tb:..t the locul school should be raised in efficiency. 

J:o oore children should be 1=ut in here, and if C!irliGle r.ekes al'.;' 

further 11ttempt cautioz:. s!!ould be e=tc;rciced to lirJit the effort, 

and ucceptunce, to the re >ll Indiuna o:· th& :ribe. !t would l:o 

c:!SY enough to pick stracltr.c enrollment frJI:! o.none v:l:i te f=.ilies 

'~i th a strain of Indicm blood. 

I can not reco~~ez:.d that the Gover~ent establish one of the 

resulation Indian da:r schools for this b:m.d. ::he e:!'ficienc::; of 

the school r-ight be raised. iz:. sooe purticulars, but in other respects too great <i.aneer e::<ists. 

In other portioz:.s oi' this report it is ehe>·z:. that ~r. excellent 

relati on c);ists'. 'cetr:een :he Ir;diur.~ unC. t!le ·;;hi te population. It 

is on the v:hite populatio:: in the vicinit~· o f the re:: ervaticn the 

band mm;t O.epe1:d i'or ;;hatevc;r the ~tate <lees for it. he part of 

the state \'.here the recer"Taticn licG ill in ti:e very heart ef the 

South. Ti:is cea.'ln !::outhern institutions, ::Couthern cocie.l customc, 

s;rmpathies, iuea.le,-s.nd if one on;• say such of SJzy pc.rticular locality,-prejudices and general characteristics. Sach section of 

the country has its pecul~c.rities, end it is in this sence, c.nd 

not in •:ay of' criticis1:1, : rcf'er to those o:!' the sect~on 1·1he r e the 

Catar.bcs live. The Catar:bus nrc a part of all this, ::.s l:luc h so as 

it ie possible for an Indian col:lr.luni t~ ... - - . to becooc a part o:!' 

r.hat exists around c.nd abcut it. To dist~rb the ~icablc relations 

betv:een the races v1ould be about the •;ortJt could be done for the 

Cata77bus. 

Teachers :: elected !rom the cla:n:ified list are ve :r:; lo.:rc el;; 
802 

9. 

fror1 other scctiL:·.o2 of' tht:~ c.;;u:atr:', c.nd o:f di!fe !"ent ~~~npathice 

CLd cr~ucteristics. ~ will be seen !ron other sections of this 

report, the band is naking some rather e:ctensive cl:J.ir.s ::ot;uinst the 

::t:1tc. Taken on its face as ehc~rn by the old records the Indi=s 

present a rather strong caee. ~·cw teachers would be uble to Clnnly~e 

'::h.;se clair,s, ar.d would doubtlecs give much greater credence to them 

tl::ill the law justifies. In cy judget:Jent it would taJ;e but little 

to create quite a feeling ar.ongst the Indiana ae against the State, 

end the l':hitc population. Or instead of cre&tir.g such n feeling, 

it r;oult!. take but little far.niJ:S of the ne.ce to bring about ,.uite 

nn estruncecent. ~ne possibilities are too erent to enQanger if 

such can be avoided. 

!n industrial matters the !r.diAns noed cor.e assistance. They 

need a can to t!dvise thee in cotton growir.g, particular~· in the 

r.atter of conservine; the soil. Cut of a hundred r.1en the Office 

eight te able to choose from it is doubtful if one of the proper 

kir.d could be found. Cotton is the one noney crop of the section, 

end the coil calls for local e~erte. The land needs terracing, 

and should be fertilized, but the Indians have no fUnds ~ith r.hich 

to procure fertilizers. A locl!l man, accustomed to the localitJ 

and familiar with the people. could render great service to the 

little cot:Jmunity by giving to them four or five dafS out o! e~ch 

conth of the crop see.con. They ver;.· ouch need this. 

If the State could be induced to use a lar~er portion of the 

appropriation for the school, thus providing a coed, energetic 

teacher, end another small portio~ to ecploy an instructor for the 

farm ~ork, I am of the opinion it would ci>e greater return3 than 

any thir.g the co•;err.r:ent could nol'7 it:stitute. 
803 

10 . 

. ~·hat the ~tate is doi:::e: I learnce tbnt the Attorney General 

for the :':tate had, about two ;•ears ago, rendered an opinion in the 

Catawba case, which op1nicn doubtless re~enrses the several state 

statutes and appropriations. I wrote the ,;,ttorne;• General' s o::'fice 

for a cop;· ~ st:.ch opin!cn, but it h:J.o r.ot ::-euc !led r::e . I:i' it cor::eo 

leter it r;ill be 1'or.1sr ded, vlith a note of explanation. 

<'ron such ct!:&r sourcoa as I was able to col:l!':'.nr.d : lenrned 

thut the Stu.te clair::s to or:e the Cs.t&wbus nothing, but on t~e etherhand hus been caking &ratuit;• appropriations to it for soce ·ears . 

It ;-:-as said such. npp:ropriot1on!3 hnve bee:c r:e.. ~ clr!ost ver~~ year 

~~ ince 184C . e~:cept a cC.ort po::-i od during :he "reco:nstruct:on pcriod 11 

fcllor,inf the Civil war. This annual s.ppropristion 7:as doubtless 

~1000 to 2000 unt il within rec ent year~. since which it has been 

i!!C!"e c.sed £':-o~ tir.-.e t c ti r.:: e until the l z:st v.-as ~2500 for ge~cro.l 

sup ~c rt &nd ~200 !or tte ~chool. 

It ::J.ainteins an Agent, who pn;s the te£ci'.er , ph;,·sician, end 

an;r other drnf'ts on the :funds, c:nd once each year disburses to 

each individual such cash portion as tho appr opri~tion will ~dcit 

of. ~he appr or i~tion is not used !or p~cesse of supplies, but 

is pcid direct to the Indians. The Agent is P"id a coCt:~issicn on 

disburse~ents and 40t a sals.r;. 

~hile en this topic it should be noted that the Indiana cpoke 

very highly of the financial intecrit~ of the state ~ents. ln o4e 

instanc e I t!:ink there rcc.s zome dislike to one b{;'ent, but they &11 

claimed the aiobur&ments ~ad been honestly done. It T.&s stated 

with cucl: ear!'.ectnezs that they believed every penn;' hnd beer. properly nccour.t e d for since nbout the ;cenr 1876. .Sefc rc t hat :ine tl:is 

clnic o! honect~· eo eG not appl7. 
11. 

7he Cat1mbc. Cocmission: 

804 

E,7 reference to ~~hibit E it will be 

seen that the last general assemb~ :·or the State provided for a 

co~ssicn to report on the lands occupied b~ the band; what other 

lands they need; take options on additional lands; all ~'71th a view 

of providins then nore lands instead of tho anr.ual appropriations. 

It will uloo be seen that the Governae has mude the appointments, tv;o of such cor.u:;issioners being from Rock Rill, the nearest 

large tr;on, and the third :from Yorkville, the county seat of York 

county, where the Indians reside, 

I went to the reGervation on December 29, 1910, arriving unannounced. I found the tribal officers gathered at the little 

meeting house awaiting this comr.lif'sicn, which was the first I had 

heard of it. I wa:!.teC. until late aftGrnoon, and no one c=e. The 

Indi~s said th~t was the second date set and no one c~e. They 

were quite dioaproiz:ted, =C., Indian r:ay, felt nothir.g ever •;ould 

be done. Tl:e~ asked z:ce to oec the mecbers of the Co=ission, and 

also State .':.enator Stuart, v;ho lived 5.t Rock Hill. I returned to 

~ock Hill and the next day hc.d a conference ~'71th Senator ~tuart, 

and comrr.issicners ~pencer and uhitner. It was decided that we 

~ould all go to the reservation on Saturday, December ~1st, and 

~. L~eis r.as asked to meet us at Rock Hill before starting. 

;'lhen the time came to go 1:r, Lewis did not arrive, and J.lr. 

Spencer was toe bus;, in his office to get away. Mr. ·;ihi tner evidenced great willinv:.ess, and in company of a planter r.hose nar.e I do 

not recall "e Tient to the re3ervation and conferred at sone length 

v;ith tho tribal officers. Tho Indians =de known their wants, and 

at their re<;.uest I c.dvised then, guarC.edl;, 11::: to what they night 

best do, all in presence of Llr. ;ihitner. ;:he;;r l".'az:ted to know what 
805 

12. 

their prospects ~ere a= collocting ~on the ~tate, or of rccoveri~ 

th~ir old reservation of 15 ~ilea ~~uare. I told them I felt they 

need not hope to recover the old reoervation (they had previouslJ 

entertained such hope, but not with great faith). I re : ruincd from 

cxpresnine a~~ opinion on tte legalit;:;r o= o. mane;~ clnin :'roc the 

State basee en the ~o- cn ll ed trent~ of 1840, but rat her ditcouraged aey ::;uci1 hope. I eO<plair.ed to the!!! the.t the Departz:;ent h<;.d 

dec lined to take up their ca:oe in court, es shown b;:: the file sent 

me fran the Office. 

Senator ~tuart o.r..d ::r. -:-;hitner had. expressed theoselves to the 

ef: ect that the tribe doubtlcso held a moral claim against the 

State, and they expreG sed the belief the State would recoJni:sce such 

~oral clair.-. if properl~,r pre ~t e: d.. 0 .. i:C..itr.er c:Jude st:.ch e::pression 

at the oe&ting, und t::e or:::uul [:.~! :::- op riaticns ere cviUer.co of the 

State's at~itude. I v~~~~ thee first to ful l~ co- op6 rat e ~ith 

the Con~issi n, end to pre ss the i r c laic for a reasonable assistange frol!l that source, ru:1d attel!lpted to (;ive encourater.Jent to their 

flag ing spirits, the result of nunerous disappo intments. I explained that r.hutevcr the State might do waul;! have to be the act 

of a larc;e number of legislntors ·,7ho really knew nothing of the 

case, or probnbly nothing of':.the Cs.t&wbnc themselves. ! found thee 

very ready to accept a~ sugre stion I nace, and hud to ercise great 

cure. I stated ·:;ith great care that the~' !!lust expect not hi~ of me 

exc ept that I would faithfull~ and fully set forth their conditions 

and Pants in my report. I explained that the Government was now 

ussur.Jiq:; no part I'J hatevcr in the controversy, :md might decide never 

to take part. In general I ~ged that the~ must l ook to the State, 

acd cri7 interference on ·the part a: the Gover~ent r.Jight be un~ise. 
806 

l:l • 

..:..fter the meeti~ clo<Jed the entire pc.!"ty ·.>en"!; \'lith ::.:r. Jhitner to vie~' sor.:e lands a..ijoinir.c the reoerv~tion, ;1hich lands the 

planter with us was offer!"illG to the ~o~ission under the provisions of the copcurrent resolution. 

-.t the requect of Ur • . /hitner !;hief Enrris gave expression as 

to whllt the tribe asked of the ~t~>te, ;o;hich ~tas sufficient edditional l~ds to give to each individual ~eobcr un. allotment of 

50 acres, and then e. reasonable ec;.uipment \'ith v:hich to begin 

!'arl!ling. .i'hilo there v:as no c,;precsion to that particular end, 

it was 1:1ec.nt that in such event the tribe r:ould relin'luish acy 

claims it cay hold against the State. 

:.:r. ;iJ::.i tner reckoned it 'l':ould cost froc C25 to ~40 per acre 

for such b.nds as the Stute t:J:!.Cht provide, ur.d e::<pres:oed h:!.:::c:el!' to 

the effect thllt he d.id not think t'!:c :Otat.o ;:auld ever provid.e for 

thee so liberally. 

The lE.nds offerl·ed b;7 the pluntcr, I.'.':; out 9CO acres at ~25, as 

I understood, are mostly tir.bered, and are not very desirable. Mr. 

;'/hitner doubtless felt it would be !!lore e..ivisa.ble to bu;; improved 

lands, tr..at the Indians !:light at once get do;·:n to farming, instead 

of eking out an existence by marketing wo~d from the tiober lands. 

In these deliberations I took no part, !:!Ore thE.n to encourage the 

Indians to hold faith in the State doi~ somethi~. 

Llr. -;hi tner v:as rat'!:.er disappointed ~t "hat he felt was an 

unr.ise de!:!D.nd on the part of the lndians, fearing the size of the 

de=d might operate to defeat the ;:hole r>ropositicn. I VIas very 

confident, hanover, that the Indiuns uere c.slting !!lore thnn they 

hoped to obtn"in, end ;·;oulC. recdil;- consen-: to c rnore rensonable 

proposition. !n this the Government c~~ doubtless render great 
807 

H. 

::;er vi tJ to bot~ J.'ribc u.nd State, :·or 4 f'our.J thco 1.1nitc incli:ed to 

act on •:h"t they felt the Govcr=ent woul<'. rccoer.<end. 

l ciesire to ezpress kl;t Cish regnrd for fr •. :hitner ~s IJ. member of the coni:lissicn. lie was at one time an attorney, but nort an. 

e?.tcnsive planter. ~e is a man of unusual good ;udgcner:t, ~nd I 

believe r.. is intes!'it~' ~!ld sood purpose is o~ an ey_uall~~ ~it;h ch.::..racter. ~e synpathize s rith the Indians and scene to clenrl~ reco~nize a nortil obligation on the part of the state to do zonethin~ or then. Ee ~eels it ~auld be nuch wi3er to put thee oO 

f.:.r c: ir:t; lan~s :nstead o~ doling out a ye::<rly apprq::riation. Zr: 

r.~: judcecent r.e ~ tee ideal l!lan ~or the com·.iss!or:. ::e jj.,;:i r.ot 

given the cutter r:uch thou[:ht be~ore our goinc out, and e.sked n~ 

pn·tar..ent '<uections o! ne us to the pl=s or..c'. policies of the govcr~ er. t ir: Uc:;~~lin€' \':ith l:;di t.. r.s. or.-:!. par-ticulc..!'"l;· a::: to t!:c la.r. 

of lcnCs ir. ~everulty. 

I net :.:.r. 5-pence r, but not J.:r. -"-cwis. Lr. ;Jpenccr is &.n attorney, us is also :.:r • .:.Cr:!s, as I r.-c.;; told. So :::ur u.s I could 

Ecc J.:r. Spencer <tould be a go od nan !or the con::lissicn, c::eept thut 

"he is too buss to do the 7.ork. lie hnd not studied the ca2e, a~d 

evidenced no nate rial interest. ::ere he not so bus:r I :feel he 

";'."Ould conscienciousl;r end ir..dustriou~l.y take up the burdon as the 

resolution calls for. The sane doubtless upplies to ~. ~eiTi! in 

e'lual nrumer. 

~eall"' it lookei! as though the co=ission ,.·ould do r.othint; r.t 

all ~d oake no report, nnd the Ir.diuns, end Senator Stu~rt teo, 

had about lost all hope. ::;; coning nn:7 provo opportune, for it r.~ay 

re sult 1:1 a repc rt being r.lade. I ir., ictc,d on :.:::- • . :hitner proceeding to de the ~o~k called for b; he lec! s lature o~ h!~Delit the 
808 

L. 

o'oher !:lecberc to juin !>~ t!w rc,:>ort and rccomr.ondation~ if they 

agree, and i::: this ~enutor .:tuart asr•ced to join tle. .!:n this ·::a~' 

I have hopes 3 report \7ill be mcde, end ~- confidence in ;a. ;·:hitner 

is such that I hope !or a reasonable re~or.=endation. 

attention is called to e~hibit c. ~ letter recei~ec fron the 

Chief after ~· return he::-c. ·:nis sho·::s ~0verr.:!. thir.r;s: :t ~ets 

forth w!:Eet the tribe would li:-e :he go·;cr=cnt to do; t!:e ei:·ect 

of !:'~ visit; the lack of confidence in the state doing a~- th:!.nt;; 

cnd r;or.~ethiq; tiC to their cupacit~· to do bu$incss. It is e:<pluined 

thut •::hile the letter bear5 the Chief's r.c:::e. it is doubtle~s \':ritter. b~- the ::Cecrets.r;;. T'he ,;hie:' is <;_uitc intelligent, but ::or::e7:hut 

illiterc.te. 

In ny jucge!:lent all effort~ r;!:oulu be directed to secure Euch 

action o:: he part of tte ztG.te t!S c ur. bG o.cconpl:!..shed, o.::c'": that 

no otf~er proccC.ure shou:d b~ ez:'tLrtair:ed 1.:r.'t il ti:c eta.tc hc.c h!id 

an opportunit;,·. I urged this on t!:e !n:'.~an~. 

State ~enator ~tuart: I fe0l ~enutcr ~tuart is entitled to 

special considere.tion in this report, :'or •:hile the lndi::ns are 

losing confidence. or may be vnl~ beco~ing irnr-~tient, I !eel that 

what has been done is due to :.:r. ~tuurt, and ?•hat !:ley be accomplished c:::~t be lart;el; the results of his efforts. E:e lives at 

Rock liill, ten miles a·::ay ::rorn t'hc Indiur.s, nnd has evidently labored earnestly in getting the &p~roprintion raised, and in having 

the concurrent resolution pac:;cd. .:!.e feels the ~tete i3 under coral 

obligation to the Indiar.::J, end furtr.er t!:::.t the~· ~re now so:::cthing 

of a burden to be carried b~ tr.c state u:.til the; can be placed 

in !!:ore selfsustaining cor.dit!or.. ~ recocni:cs the 620 ceres o!' 

l:'!!ld they nor: occup;7 is :!.nsu::;·tcient, ~;.r.d. belie·: ec it bettr.r that 
809 

16. 

the state l=F it:; cpprcpriativnc und thereb., pu ~ tl:.; mdi:mc ,·.her e 

tr.ey cun Uo ~o~cthi~g fvr thcc~elvce ~~d t~e~ stop ~l l ~~~her ~i~. 

I feel he is honeot in ,-;hat he hua done, nnd cun be :: c lied upon to 

do rieht by them. Ee nec<is suppo::t. 

!n tnl:·:ir.t. ;·:it!c i~i~. ·.-:hen it looked us thou!;l: ~i:e c;or:u::i:;sLn: 

;-;ould de notl:!.ll(", he cUGf: ~sted thl'.t ou;· b" tl:e Fede r:..l sovr::·::u:Jer.t 

could be inJ.uced to tu£e over the Cnta>;bus , :1pproprit1te f-:>r tl:e:: 

~s for ottc:r tribe~. ~r:d thu ~ :-clieve tho ~tate. I e ·x;lained tX:.t 

it hc.d long beer. the pcli c;;· of t he Goverr:..ent to fit the Indiann ~·or 

selfsu~port , c~~ t~en to tur~ the~ over to the etntes ns f~st ~3 

could be. ..r..d. !'u!"'thc!", thc.t s.s the State hs.d taken ovc:- &bo!lt c.J..l 

the Catu\·:b:;.s once o;·.-ncd, hie nu~;restion oicht ccet ·::ith <:one occ1ti ~. =e ~eid tte tatt e r h~d been p~ccent cd to : ccc c~ the delgation froc ~cuth ~6rcl ~~. but th~t noth~~c de~inite t~ d t been 

deterninc<i upc·n. 

In later con!erer.cez ;-:ith hir:.t, an in ~~ tt:.ll~s ·:; iti: :..::-. :; r:.itr:t: r, 

it Wt'S m:cz- cstc<! ti::!t I!!Ul' be tho state '~ould rns.J.:e :::cr.;e p::o7ision 

for the ::elief cf the Cntar.b:!s, and thet the Gove::ncent uould jcin. 

I!! all this I could g1 ve no part or pror:1i;:;c, sir.:pl:r e:·pleil!ing the 

gover=ent r:cthodl: for the!:: infor!DD.tion. Each of these t::en t:ere 

anxiouc to .f.Ct s::: :c-:uch in:!:'oroutio:n as to how was the bent r;~y to 

handle the proposed aid, lllld in thie I gave the benef'it 1 f ~· observatiol!s so far c~ I could, pcrticulcrl~ as to the t::cthod of 

holding the lands in trust, etc . The:r each asked to be f'~::ished 

With C0fJi€E C~ the }n.\•:s eo~Jcrnin('" }C.T.f~S i!! :~~l , 1

. ·!:!er. : hopG 

to h~vo =cnt the~~ :he se ~e n nccmcd to elcooo co-opcrntio~ on the 

part o~ ~he Go•cr=ent in si.li:n1; the Jtnte to tckc ·::i:>e acti~:l . 
810 

17. 

-ttorno;s: J.'!-~e tribe 1"!::-rl ~r~·ur..ced witb. :.:r. ~hcG!:er .:lo7:e, a.."l 

~ttorney of .. -ushi:q;ton, :.. C, to reprosoLt the!:!, o: juot i'thc.t te!":lc 

I do not ::now. .:n p!"cpu!":!.r:~ their C!l.:Je ha se~t u.t di!'!"a!'"oz:.t t i!ifJ:J 

and~~'."! ;ohns, a. ::e·•1 !or~-= :nl!ic..."'l =.nd o.n o.t:ornc~y. ~::J.d ~l3o n ~eul 

b:r n~~r:.e o~ .2ti.rtl0\7. 3it:co thon all these ne!l have die·~. .:.tro!:! 

t~e filf~ I see t!:!..t 

cl~i~E to h~VB ~ace ri~tt ~s ~ttcrne~. but the tribo croes not ~o 

r~cot;nize l:irn. :he;~ no·;; !u.:.ve no one re,st4l:lrl!' ~!:Iplo;-cd, but t1:£:!'C 

is c. local e.ttort:.o~r !lt :\ock .Oil}., who.Je nE..!:!e .! rlo not rcc~ll, to 

r.-Co!!l the~r fre~uently fO :'or c.Jvice. I do !:..:t n.r..dcrst:..nd he is 1:::. 

ar~t r:~;r e!:lplo~;cd 1:::. the::Je nut~er3, ho\":eve!". 

:Fr':l~ tho file it uproars I.:.r. lio,::e douUtless c:q,enrlecl con-

::-:i<l~;-~::ble r::or.c:~ i::. c~per...:ce, esti~::!.ted b:.· :.:r .. ~·!·it,;!:t [;.t :.tout 

~he;- do r:.ot cs.re to er.1plor an attorr.ey, but h~pc the :er·:..;.rtrner..t ·;:112 un~erto.1:e to sorve noner:he.t c.e ~:iviscr i!'l lien o~ an 

attorney. If the Gf:'ice ;:ecr; it ;·.a.;; to e::.tending ur.;; uiu to this 

little band it c= doubtleoo:s bost serve thcl!l b~· thus uiC.ine "::hel!l, 

~hey are quite a sil!lple-~indcd people, ur.uccd to h~~dli~e affairs 

of thi~ kind, unu in soce states or co~~u.~!ties I could nu=e they 

could soon be "taken in h~nd" by some tutccru.pulous e= posiJlG us 

uttorney for them, un:l ·.-;ho l":ould cl.oubtless C.o their chances cuch 

greater harm than eood. ~uin attention is culled to exhibit c. 

It should be borne in nind thio tribe has never had a tribal 

putri::on;; on ·;rhich u fe~1 could !'utten ani'. becone J.l0\7cr:!.Ul, or ::;one 

I:li::red blood could ca."'i:;:mluto so us to Y.ield v::.r.t influence 1:: the 

collU!lunit;•. :6:h1s little band 13 clelio;htfull;i !'ree of :::uch individual3 en1 influences, 
811 

1a. 

r~cted to do ·~·:e.J tc ::..sccr" .. ;.;.ir. I'Jh.at cl~i;:ls the buLd hol ds or '..lrges 

ab~ir:st the ~tu."te. :~is 1 3 pr ~obl~/ bett·)~ prcsont cC i!l t=.e ~riefu 

suctJitted o,o• :.:r. lior;e ti:::.n ti:~ InC!ia.ns could p:ceooz:t it tr.er:sel•res. 

(~ce hc !ilA rctu:rr.ed :c~·e-. l: ':h ; I::. ::'&.ct, t!:!e I!:d u:a -J.o·..=. tle.:: ~ 

!:uti r:l~· :.:. cc!!:'..l:; c C. i ..:c u. ~.' ::.~t t'c.Oj cl~!:-_:c c'. 0.6o.i::. t ~!'. c ~:~-: c ' .. c:":::!.l 

~;r. llo-::c ~·.- orkcd :!. t up a r.d pr(;s e::te d :. t. c op i e s o.:: ·::!:icf'. t:-.c~· I:~vc 

t~e probabilit:.' ..:.-f rtcovcr:l. !!. 3 ~· ill be :coted i'ror:l o: her purti.:: ::s 

cf thi~• roper-:, (sec P[J.GC l :.jj . 

:...r. ~o;· ·e 1-:J~J.:::cs out a ~, -:::, · c l c u!'" cr:..:::;c, int ._:rpreti !"'.f t!1e ::tc;.tutP.s 1-: tero.ll;;, G.r..d ~:J'l:l:·ir..a present-de..~· idcr.ls ~.::·~~ c;tsncl u.rc1s to 

the ~or~: o~ 1840. ~~c~ ~~ ~bc :: t b~o~c~t :hecscl7cG to be li cYe 

?:o c k ~ill a!ld su~urbs ,:it h its .000 or lZ,G~O pr:cplc , r:: t: ~r. u. :.:.ct::; ri !~~ 

~!ld thousand ·. o:f r:ell ir.1proved f~!"I:lS un~ ::or.1cs. hi s a! fo!"C: ed r~~ 

plec.~az:t drc=~, and I could plui!ll;r r.ote cli:olliJl' o :i::tr.Jc z:t 11i:e z: I 

edvi oed r.ot to e!ltertc.in hope oi' ar.~' ::;uc:r. i'i!lal rcsul:. 

But the;r still entcrt~in the belief. = feel, t~t they have 

a le(;:ll cl,iim cgainst tho st~te, which could they r;et into court 

t h ey could realize oz:. lt is r"thcr a Gore dis:o.ppoi::t::ez:t to then 

to ho,·: they cun not even liSk a legal hc:J.riro£; e :<ccpt tr.ut ~he 

legislatu::-e, or congress, c:caz:t such b~· legisluti ve ez::wt!':lent. 

fe e l tho~- !JC: :'or or.~e nuch pe::-::1iss:i c.. n i n the er..d. , but ~·; h '11 e 

~evice they ill sub it t~eir cluio to the ~!ute le£1Zlcture, ~cd 

be co~ er.t ·· it~ .::l reu cf.::.~e C!":J.r.t. 

~he legal :lnd CO!l3tjtutioz:&l prcbleos ~risir.c :i!l ti:c UGGe~-
812 

19. 

tic~~ of ~otic~ in eit~~r ~tu~e or Fedc~ul court to ~ctc~nine 

cs the fo.ct ti:at for 70 ~?ea.!'"Z tl:e ... t.:.te hc.c ·.:iti.!0U't !::clc::t~tion 

i,~· 

is & c~se t~ 0o r~dled ~j~i~i2t~~tiva 

unJ. le~;isluti-;e pov:ers of tee ::tate r.r.d ~· e<:erul cove:::-r.:c.ents. :..·;~r. 

i:t' t:~:: ~lu!.r.:s o!' the bc.nd co'l.lld be Ct;.!".:·ied ir..tu court b~·· the iodcral 

o:' toe little cor.:Je~.:t.ue:::ce to ~t:.stif;,: ~a~h 1:· u. rec.:.2cz:c.blG :;et~lecoming ~e.;sior. o!' the legi~lature, rcl:icil conver.cE.: ir. ~ fe·:; d~;-s. 

Coul<l the vffice be usaure<l tl:e leci::1luture ·.-:oul,'. not rcc.ent it I 

feel ~uch aid migl:t be exter.ded. :ut it ic :::-uther ~ delicate matter. end t!:.e Gover=ent cD.n not af:ord to assw:e ··;!llJ.t ni;;ht be 

ir:.terpreted ~s utter.tpt:ir..g to control or ir..!l·1er.co stc..te le~isl.:A.tion .. 

:f the St~te docs uct in t!:.e ~tter of ~rocurinc nore land 

it r·oul<l <loubtlesa be •c:itl: the purpc"c of distributint:: !t us lo.r.ds 

Cfi'ice mig-ht be a'ble to rer.der v~lual:.le service, r.£ the ::.:t.:.te !:.as 

no of:icial It::..chincr~· -.-:hcrebj· to curr;• out .Juch pur2u;:;e, r..or hns 

it exrcrionccd 7:orl::crs. If ti:.c :it.:.te s:-.oul:l e=<tc::.ll un invitation 

to the Lcp.s.!"t=er.t to co-or>cr~te I reccr:..::-.enll it :-cccivc c~rc:'ul 

attention. 
813 

so. 

As this ·:thole prc::;::o si tion is 1!1 tile \'.t::.;J o!: triba! treo.tiea 

or agreccents. and as the letter o~ tho la::: c.::.lls for .:'edcral 

sup~rvisio~. I am of the ~pi:io!l it would be wi3e for all conc~r::.ccl if ;:~etc~er c.ct ivz:;. is dct.er:::!ncd u::ur. ~hould be co ccr.-

ductcd th&t i:::1 t he er.d it coulil rccei·vo :'or=l approv!'.l oi' the 

Lepc.rtz:!e~t, thu!:) rc!!!ovi::t a.ll c;.;.u~e for rL.is!ng cuch 'iuoztions 

later. rt \·.·culd be sor::e; ·hat to tl:e Stctc '~ udvt~r..ta.ge th~t thi3 be 

Cone. 

As congr~ss can doubtlesJ alone extc~a 1~11 citi:er.ship to 

the!3e Ir..Cia~ , zo~e ::l.ction should be rea or:-:',ended l o .:)l:i!:C to ~uch 

gr~t at the proper ti!'."!e. ~his is ~ot the proper tir:!e, ho·:;ever, 

a::d such ~n t no·.v ~ight oopli~ nte 

'fr..e::;e Ir..rJiuns ure ii".lite r0;,:cly to receive ~o~t o~ ~he rigi-.ts 

of citizenship , ii' not to unde :·tnke the obli::;::.t~ons. I f eel the 

tate uight very pro~erl~ extend to ~~o~ f~ll c ivil ris~t s in the 

courts, und if cnlleJ to ~heir attention : ~oubt :::1ot the legislature would be glad to do so. 

The tribe is incli:::1ed to t:.rec tl::.e ur.fc..ir:ce zs , and aG 1t regards the procedure, the illegality of the so-called treaty of 1B40. 

r .iha.t purpo,_ts to be a COK of this treat; ~c found in :he file returned hc=e·::ith. ;·,natever claim the~· ha7e is baced o~ this, and 

on the le~;islation just prior to 1840 ':7hr:reb:,r their lc~~ cs ·,·:c::-e 

virtuall;, lecrisla.ted i;:1to trai!zfe r s of ti::ei r realt;;-. ~ r e:·n.ined 

such. I rati::.cr discour4_;ed reliar.ce or. ::. l p!'cS•Jr.tct ion oi' 
814 

- 1. 

sue!: clD-i~.s, ~J l ·:.t.s u::c.blo to Gcc~re .:.n:: thil:[" tl:..:.t ..-.-c~ld. r-re -

se~t tt:c ~ t~te 's co!!tent ~. ~less 2 c .::=. sccuro o. cop;~ of t~c 

the O:!.':"ice t.nd Iepu!'t::"!cr.t ::oc:lll t!::er. r.~ ve c. ~-eli ~at e preble!:: to 

deci e ·· hut uctiv n tl:.e GoYe::·!:::-:ent should take, o~ '::het!:.cr it s!:ould 

[;.Ct at all. I c!'fer r. o S'J.t?"[esti.:r: iz: th:s !:l::itt er, :urth.or t!-'.!:r. to 

ure-e t~ut t:ha I!:dio.ns a re er.titled to ~ e: :-~ · full cons de o.ti ·~ n of 

thei r re Y.1.1.c~t s. 

of ~ petition to the :e isl~:ure th&t ~t proceed one the li~es 

for ecast ed in the concur ~c nt rc scl ~tio~, th the ,urpo~e cc the 

pa!'t o f tl:.:o trice to !lcc ept UI4' nuso:cu ble propositior. the :Otate 

In thi~ the t!·ibe r.eeds e.~sistur.ce, =d if the 

~t:it e ·::ou2.tl accept suc h I feol tl:e O!'fEe nicht very properl~· e::-

te~ d its ~iU. In !~ct, the l ebis luture cculd hardly obje c t to the 

c;overr.r.:ent upv:) :lri:!:lg sower;hat in the capcc1t:; of aC.vioc r to 'the 

bund, und it would doubtless be '.'le ll t!:at ove!'t=cs to that end 

be o ode . I~ c&se the ~t&te hould usk the co-operation of the GOVer!'ruez:t i n c~rr:·ing out o.n;;~ :chel!le of l!lr.ds 1::. se"lc rult:T the Uffice 

ur.d Lep&!'tment should oc c ept the invitation if ~o legal obstac l e s 

e:.- i st. In fac t, congre~s ni<:ht propcrl:7 be uskecl to authorize 

sud : co -opera t ion . ~urthcr then us reco=endc d ubo·;c l feel the 

outt c r hould be ~ft to the ~tnte . 

Ver:i respectful!:· . /. 

J:... .. ,.> ~ ( .. ~·./ 

:::pC-ciul Indir,n ..sent. 
815 

Pl. Ex. 36 

!.eruore.nd urn to the COt'"" 1 s si c ue r: 

Subject: Gut&~ibo. InC. !c..ns. 

Cn Jenuo.ry 26, 19:5'1, :·rofe .; ::o::- .o?ec:c o.:· t:u; !·nivcr.;itv OT' 

;e:lnSjl ve.nie &dQ.rcssc·.! c-. ttc :- to t:-_') ·;v.::-1 zsi O:lr. r !"C 1!:....:~1; t:·:o i;-.:'0:.,1-;utiO:: t:1at t :.e St~te Cf .EV~ ·.:1 .;,:.:"Oli ~L ";."tl:i pl'afC.iin:· :.: ;rfill~l 

=:ettlcncht" ::ith t !1e .:~tt :..t;ba In·i i;;;..!lZ •• : •. J : • .: ua:: .. :t·.:.~o '-""1 t!-.e ..;:.• .. uLtion, 

~t.c .:;tc.~c -.t.~s o:::cri!lt_. y:~50,CCV, ?t:Y'=ble in u :o per ct.p itc ':~ : ... cnts, 

t·!t:l '.·:t.s Ul',Zi:t: t :1t: tl·i·f' t: to i~~· :: !..: :.:C.:!.ct.r t~C~io~ :: ~ it~ C:'f(; :•. 

'.'he nr::t t ·i:1:· : le rr.cd on c. . ::-!vir•.- "~ ':eel; ,~i · J 1 :~. c., on 

li'cbru~" j ::.:.s th~t !·':-ore .::s,·:." .'3pec!: ilo.'.: b~cn :.:isir:fo!.J.:;-.~ : .. O!' :::i ;: \.ud~r­ :.tcoo, the te!'l.t~ of tl:e St<-te •.; pro)vsu, ·.::·.i ch ::;:.·<: ''::t.~lr c:: ~teted 

1;1 ~cction 51 o-? tr:e rr-·nercl i~:~:-:rcp::·i~tior:. :-'ill no;: r.~J·orc tr.P. .·:tt..te 

.:.~~cr:tlj·. ·~··l:t.t i~, t~it: ;;·~~ tl~::r :~ nt ct:..:l!:; -::.Jr :. :::.:rr:~·::it of :lco.-:·.::>Q •-::d 

the ::t;.te ::U·lcet ·ccc;: :. i~;;ion i~ ·' L-ec·:ed to ner:oti!.te ·::itt. the :?e1cre.l 

::ove:n-'e:lt \iith c. vie·;; to sccurin·: its ccc··0rr.tion b ::c:-:~tn· : out a ~~ ro~ :"~";l 1'0r tte I!ldian.::i, or, _th;...t ·re.!.lil!.:;,· .:.!·:.·ivinc r.;.t en in~:·epende::.t 

co'..lree of u.ctioc.. I ~~ :!tt:.cl:"J.!.n: ~ co~: ... o.::· the 3tt.tc ;"t., ror::'it. tio!l 

~ill. 

Jc<' t&r c three 1<:,;• ::t<-y in :loci.: ·:ill, I ;>roceede;! to •:olu:.:bia, :;. C., 

to i~.:.tel'vie\·: ;:r. J. ~;. 3r.iti'. , ,;:;tL~e .. uuitc:-, =d to ;;::.ther in!':m!l.:.tior::. 

ir. the ~'t:.te :iisto:-ict.l Cor.1tai~sior.. i.ibrt.r;. 

':L'ba teli< ~;i,;h ; . .r. :id.tb. brou'".il.t out t!le essentir.l contrcdictio.c. 

in tl~e .5t~ote' s position - a coutradiction l';hich hes tean c.ppc.rent tor !: 

nur.tbar or ye:u·s in its dealincs v:ith the tribe. Tl:e :;ti!te <i.echres, 

on the one h=d., th..,t it h€.s no cbli:;rtion to the trite, th~t it hns 

long et;o db:charced eny ir.debtadne ss 1 t ever 01\'ec! by reason of 1 t a hnving taken title to tha Cc.tawba lA!lds ir. the Trent>; of 1640; c.nd en 

tt.e other hand it has c.ppropriated r.:cney -hli.phe.zc.rdly, 1 t is truetor the support or the tribe, end at the s~e time hes ~ouzht to fortify 

its le~al. position b7 roiteratin·: the ju:Jtica or its ects-for e:n:.mple, 

in the opinion hi!Jldad dor.-n by tbe 3t::.ta ''.ttorney Cenercl in 1909, 

to nhich rerereuca will be r::ccia late1·. An~ al.Jno~t a t.undred years 

arter the treaty tlhich 1<89 to have settled forever the c;.ue!:tion or 

a:;nership of the Ind16Il h .nd.s, it 1:; no1·; r:-o!Josing c. "fin&l ~:ettlCI!lent." 

The history or this Ste.ta-tribel relctionship is nn interesting 

one, much of it n matter or public reccrd. 

Exhibit H 

July%, 1993 

House Heariap • H.R. %399 
816 

There was a tii:Je ·.vhen the Colony c.nd lutar the State o! South 

Carolina acknovtlo<tr;ed erect iwlebted.JlG 3S to the Catm·:ba tribe. The 

history of those Indicns recites a lon:~ record of aid and ccrr.fort 

which the o;;hita r.tcn :received fro::: the -Ce.tai:Ld:;, end frcn r;uite on 

early dote the Cata:~bas beren rtr.':inc efl'o:·ts to insuro the pe nnene ncy 

of their tenure of luuds ;·:hich they l:::J.d el:·:ey s occupied, or at any 

rnto, ·if they hod to civo up their tr~c!itional territory, to secure 

other lc.nd in its place. One of t he et:rlie3t suc;,:,estion~ thut such 

negotiations hud been coin,; on is to l;e .;athe•·ed from the letter of 

instructions v:hich Gov. Dim:iddie of lflrciuie. in February 1756 directed 

to hi:; Ccmni ssior.ers , Hheu the latter :·:ere utout to meet the Cstawbes 

and Get u ccmnittrr,ent frcn: theu to aid the colonies in the :;tru~le 

IV1 th the Jtrench. After instruct in.'; t~lO Co:uni ssioners to "e ndeavor to 

cet them to ment ion the number of l'larriors ti:ey cay a~ree to supply 

us with", end to prani:;e "rer.sonuble" COITipen3c.tion for uny assizto.nce 

rendered, the Governor concludes: "The Ca t&.v:bas, I hear, have long 

ccmplained or bei~ much confined by the En.:;;li sh sottliU£: ou their 

land, that they =ted to sell their lBild, end co further to the 

t·testll&.rd; if they mention cnything of this, you :nay assure them I 

shall do everythir..s in my po.·;er vri th t he nei(·hboring e:over.Jroents for 

their service." 

The sequel or this prcoi:;e of in.terces::;ion, if it wes ever acted 

on, was probeb:cy the Treaty or"l763 hich the four colonies, Virc:inia, 

South and l<orth Car olina r.nd Georr;ia, nef;oticted with a number of 

southeastern tribes, t.'l!:: for..1al SiGJlill{; of wt:ich took ';>lcce a t ;~UGUsta , 

Ga., November 10, 1?63. The fourth Article of tr.at treaty deals :;pe -

ci!ically t·:i th the Cutawba. trite, the article reading: 

".ADd we, the Cetawba headmen and w~~·riors, in coni'innation 

or an agre=ent heretofore entered into vti th the vthite people, 

declare that lte v;ill remain satisfied with the tract of land 

or 15 miles square, a survey of \'lhich by our consent, end at 

our request, has already begun; e.r::d the respective governors 

end superi!ltendents, on their part, pr=ise and engece that t he 

aforesaid survey shell be c<lllpleted, en1 thot the Co.tewba shall not, 

in any res;>ect, be molested b'J uny of the kine's subjects Vtithin 

the soid lines, but shall be indult;ed in the usual rnenner of 

hunting elsevthere ." 

This excerpt is quoted frcm .roues• "History of Georc:ia," Vol. 2, 

p. 41-45, as the original treaty seems to have di sappeo.red. 

There 1 z nothing in the lfli16Uege q_uoted to indicate h011 title 

to the land reserved for the CntBYtbas was to be held. The State 

Attornoy Genorul hold in his Opinion or 1909 thnt "Thor" COJl be 

little doubt thnt they (the Indlc.ns) bc.d only the ri cht to occupy 

the lo.nds end use them for their support until their ric;;ht should 

be extinguished. This may be safely inferred frCCl the Acts o! the 

2 
817 

General .Assembly. passed rra:n til:le to tir.:e. reculetin~ the uffc.irs 

of tbese Indilllls, und deE.lir:g with the lunds in 'lt:estion." 

\lhcthcr thi a im'crence L; t::-ue or not, the.-o ·.ros onsiue.lly 

::~aile l.lOtic·u, evi<lently, th.:.!t the C~ta1·: bc Indiar.s C.id not oLn the l:..nd 

in fee sir.;>le. In other wo1'C!s, the:-e oust h::.ve been sar.e inhibiticn 

to their sellint; tile land, othenrise it 5C€1!l:l unli:;ely tLot the 

practiCe Of t;iVillg 99-yecr leases VIOUld hoVe gr01'.'ll up. 

It 1 s not lr..ncr:;n exactly 1:hen t!1e pre.cti~e of lee. sir_:; for 99 years 

becan. There 1·;10.s much uncert&inty concernin;.: this subject, I discovered. 

!!o one in l'eCent y4;ars hod seen copies of such leases, Cl!d t~cre rr~s 

soruc question as to ;Jhether or not 1:ri tter: l~~es ·::ere c>en !;l;,de ::end 

recorded. !lo one ~:as eble to sey :•:hether the trite had le~~ec. its le:1d 

in one piece and c.t one tin:e to the Sttote or to p~·ivr.te le,·sees, or 

whether individual Indians h&d r~ede such lec.ses to in<i.ividual 1·::;1te :;:on. 

This que:;tion con novr be e.ns-::ered definite}J•. ·.:ritten leases for 99-:•ear 

tenns Y:ere c.ctut·.lly wade and e. mnber ol' the ori[inc.l doctlr.'.eut s cr.n 

be e;:er.:ic.ed e.t the !iistorical Ccr.;r.ission in Colu:nbie, ·.:here t::e:: hc.ve 

only recer,tly cone to lit:ht. T'he ee.r:!.iest one th"t I se.1·r <:es d~ted 1·::•0, 

but I ~c.:;iae the.t sO!ue r~o bacK before th:lt ti.r:e. I hcd photost~ts m"de 

of several, &nd elso of tho r..c.p of the origir.c.l 15 sq•Jare nile trect, 

which e:re ettcched. 

It is clear that 1·rit!lin t\·:ent:r ;reers '"ftr>;.· t::o '1're·1t:>' of 17!'.3 tl:e 

Catewb,;.s v.-e:re findine their lands slipping out of their GI:E.sp. In 1782, 

\':hile t!J.e Articles of Confederation 1:ere ;;till in force, a dele··:>tion 

of Catawba Indie.Jls eppce.red before a con:r.,1ttec or Conr;re,..s ~nd the 

ca:I:li ttee reported, under dt.te or ;:ov. 2, 17E•2, thet "they h~ve hcd a 

conference ~ri th the two deputies of the Cate1:ba J:~tion of Indians; that 

their r.ission respects certain tracts or lc.:1d rener7ed for their u:;e in 

the Ste.te or South C&rolina, v:hich they ,·,1.sh l!lo.y be so secured to their 

tribe es not to be intruded into by force, nor alienated even with their 

own consent." One ce.thers frcn the phrnsiolo.;;y ot the endOr thls --- quotation that, 1rill1I1gly or unolillinely, tho tr!.:,e r:cs losiue: its l=d• 

Leasin,z become so prevalent that pressure mu:;t have been brou.:;ht 

upon tile South Carolina La;;islsture to give it or ric ial reco;;ni tion. 

Accord1nely, in DecoJ.ulJor l.OUtJ it. 1;c!.l u,t••lo .1&.:..\"11-ul. "'roJ.: tho Cntt:n:bn 

Indians to Grant and make to any person or persons, en:,- lease or leooso!l, 

ror life or lives or tenn or years, or !!IJY or the lEl!lds Ve:Jted in them 

by the lcYrs or this stato". (s. C. 3tE.t., Vol. 5 P• 576) 

This le11 also set up a board or five c=issloners to superintend 

leu.:~in;;, eud it wes provided +!let no lease vrruH be VP.lid unll!s:J 1'.1 tnessed 

bye l!'.njority of these can:.1icsionor:J n<l by ct ls!l:Jt four of the hootl'llen 

or chiefs o: th9 tribe. 
818 

Fou;: years after the atovo t•ct v:cs p&.s,;od tho Stflte t1cnt tho 

whol!l wey in nlienatinc; title to t!•c~o l~s fran the Cctawoa tribe. 

The lnw c.ccaaplishing th13 (S. C. Stat. Vol. p, 6?8) provided "that 

a lease for three lives, or 99 yours, of t:l(l wid Catnuba l!lllds ::;hell 

be e..rxl t :"le s=o is herebj· declared to be a qualificc.tion enuiv::>.lent 

to " freehold i!! all cc.ses r:!1cre " freehold is not reccuJ.r ed b:: tho 

constitution of thiz state or or the United ,]totes." 

Ifiusin.:; probabl~/ increr.sect et :::. .-:reat rc.te rcfter tho !'::'.S2"-re of 

the above le·IJ3 1 as 1:10st or the orir-inc.J. )e ::.ses on file :;t ti1e 3out!1 

C:::ro llaa hlsto:::'ic(l.l C=lissicu r:ere zua1e toVJards tho lc.st yeers of ~"" 

first ~u ~-ter of thn.t cen-:ury . It is also !JI"8tty cler..r f:-oc: :~~t 

Rotert kills 1·:rote in " Ei s :.>'tr.t 1st ic s of 30•Jth Ce.rolin::.", publi ~heel 

in 1826, that at the ti.rno his book r:::.s ccrnriled the Cctowbe. Indiru1;:; 

·.:ere prect1cr,lly l hndless. Ee :note: "The r e::Jdns of t he Cc.tel!oe nr ion 

no·:: occupy e. territo:-y 15 mi le:; square, laid out on both si ucs of th'l 

Catc·::ba River, e.r.J incl•..tdinr.; pc. rt of cork ::nd Lrulcaste:: ci stricts. ·~11 !3 

t!'loct en;braces a bod:,· of fine 1<-nds tiob.;red •::ith oelc, etc. 'l' ll~so l::.01ds 

ere al:::ost ell lecsed out to ~;hite ettlers, for 99 yee.rs, rer.e•::able 

ut t!te rate of fr<rl ::il5 to ::)20 per e..lillum for each plent:ction , or atou t 

300 acres. The cnnuel in~ome fra;; tl1ese l=ds is esti~ r- te<l. to c:::ount 

to about :.>5 ,000. This snr.. !Jrudentlj• l:'a!!.aF;ed ;·rould suffice to S'.J;oport 

the nhole n"-tion (nrr•r ccx:rosed of ~.bout 30 frn:111es) comfortc.'Jl0•. 

Yet tt:esa v:retched Indians live in a stPte of abject poverty, the cousc'lu en ~e of t!1cir indolence rJ11 di2:;iputed !v:~bit~. :'hey duJJ for their 

rent tefore it is due, and the 10 or :320 ~--eceived are fre'l_uently 3pent 

in e debcuc h ; poverty, beccery end mi!.ie i~/ ~ .. ollow for a yeur." 

Tho llli<:ery ui!d bec;.gary :l.escribed by !,iills may ver-:1 likely r.eve 

been true, but it is questionable i'/hether t!1e Catewbes had ellY'·:here noe. r 

the emount or rJoney to dissipate r,s he stat!ls. In one of the lee.ses 

e.tt«ched to thi!l re port, bet>~oon the Cutawbtl tribe r.nd on~ J ocolJ H. 

Clonson and si;;nod on r.:e.y 20, 1831, t he ter;,ts Pl'QVided for t ile pey:.10ut 

of ,.;1.00 per your us the nnnuo.l I1!nto.l on 103 acres or land. Inclder.tally, 

this lease wes soLi a few months lnter by Cluvtaon for e. cash conslderati on 

or ::,;azs. Otitor lon<JBs show that rentala or "10 were pu.icl ror ?94 acros, 

$8.50 ror 402 1 etc. These rentals were ell payable in cash or its 

eauivalent .J.n t:ocrls, which quite likely meant a payment in \7hiskey--

h~ nce the debauch, end hence t he "poverty, bof,bary and misery •" 

Tilere is contcmporar-:1 evidence po1nt1n.:s to such prectices. In Ftnle.y0:s "l.lll.erice.n Topography" published in 1793, the author rerncrks thc.t 

the catawbc.s aro creetly reduced in numbers e.nd attributes the causa of 

their decline to the encourc~:nent of drinking Elli!Oil€ tr.em by white r!len. 

Ramsey' s~H.i!ltocy of South Carolina" (1809) leave a e. si!:!1lar 1.m!Jllcet1on. 

The Camnissioner!l cnpointed to ne g otiate a treaty \'1 1th t he tribe in 1840 

mel~ a frank cdmission of the manner in l:hich Catarrbe. lecse money hed 

been p!lid. They reported es follO".:z: "It is not easy to escert:.>in 

w1 th accuracy the an10W1t of annual rents their lands hcve he:::eto:ore 

4 
819 

yielded. If t:~eir orlcinal survey ia correct, their boundary cont<!lns 

.:~c::> ctions (15 .f'.,u:u-e mile:;), 1vilich, at $10 e~ch, would nroduee 

~2:.!50. Somo ox· the l=<is h:::.vo been loased at ~ rouch hi,;hcr rute, ULd 

some not so hit;h, out the forecoin;; is as ne::~r the ll:!.ount as , ... e h::~ve 

1:1cans ot' ascel't~ininc, unci th~ir 1nco::t~ h:-t3 bc~·.1 ~a.th~r :.\ nooinal 

one, hc.vinc; in n &re!.'.t rcany inst ~nces b~cn u:::.Cly paid in articles at 

hit;ll ryrices th:::.t often cns1:crad ther.; but little purpose. It i:J bcli•'v"d 

that one-third the c.r:ount juciicicusly =n!l£Od ::ie;ht h:wa beeu rJude to 

~o the~ oore good." 

The ste.te :~ui te evide:1·t1y .:ns un3u:-e or t:: ... course 1 t h:·:d follo·P.e1 

in arbitrarily comre:.-tiP.g :1 99-ye;.l· ... ease it!tc '' fre~hold. L!l•n··~fore, 

it took the tro·~l:l·: tc take :l. tr ·.<:. t~· ·::iti ~h.; t.ribe in 1!340. T~is 

treuty (:;c o eery ::..~t.:.che<i in :l:'f<CJdi:d ~cod three a:.-ticle11: 

1. The C:·.t;.!.\:bc. Ir. ·\i::.ns :.:.~~ed to ccnvey title to their 

la.nC: tc ti!e St'lte Of 3ot:th C<"'.rolin'?.. 

:~. The s~·~te cgreed to l.'u1·niz!:. the: ~:.:.t::.1:b<l Inci uus u 

tre.ct of lc!nC: of t!'l·o vr.lue or ;::: ,0::>0, :500 •~cres of 

1·:hich •.:_.s to be :.r:,ble l:;nus fit fo.- cultivatio.!, 

"to l.lo purch·••a•d l.n Hr:r . .-ood Cour.ty in ::orth C:1:-ol.iJ1.'1 

or in so~H. other ruo=t .in~us or t!1inly !'Oj'Ul t:.ted 

rq~ion.". 

3. The 11t:.tc: 1'u.rthcr t•r:rce:l to pny Lho C:.<i.nv;tm Inuiuns 

~2500 at the tir"a of their rcn;oval fllld ~1500 u:mually 

over a ~eriod or 9 years. 

Lt:.nd :·:as not bo~,ht in North C.1rol1m., al thou>h th9 :Jtote seems 

to h6Te ronde soma eff~~t in that uirection, ~s ~~s specified in the 

treaty. Hovr it h!l.ppened that 652 ucre11 uithin the borders of the old 

reserve were secured for the tribe is not cle=, neither is it knO<III 

ho~l lllllCh wns paid for the l:md or of v;hom it was purchased. Ev-idently 

it 'l'ltlS purchased and vro.s not r· rer..nant or th!! old holding. There is 

no racord or the State havin.-; p:.<1<! the tribe '~2500 at the ti.l!le or settling 

on the land, and cs for the annunl p::>.yment of ~1500, that evidently YIB.S 

reduced to ~800 after the first ye-'lr. 

In other v.ords, the Sto. ;;e carried out the teru:.s or the treaty 

pretty r.ruch as it pleased. Ap,roprio.tions for the tribe in later 

years ~Te v~ied greatly. Dur1ne the 70-year period, 1840-1910, 

a total or.~~~.~O W'lS pc.id to the tribe by the St!lte, according to 

figures comp1le<i. oy J. i!'razier Lyon, Attorney General tor the State. 

In recent ye6.1·s appropriations have been MOre consiste!lt and larger 

1n 11r.10unt. At the present time about $? ,500 it~ beic.g voted tl.llllually 

5 
820 

for SU!1port and C< uco.tiO<i. Incidental.])'' thes,, arpror>r intions' "XC•)pt 

for money uzed for school rurposes, hc.va never be0n wi::ely ntL"linL:t ere d. 

The ruoney is usuo.lly doled out in Sll!a ll pt:r ~u, ita payments, at the 

present tLo:1e of less thc.n ~z o e.'lCll, <l!Hi no investment has been lliHfle in 

stock or C':,Ui;Jment. The result hns been th;~t the Indians have n<:!ver 

had the menns of c:.tl.tivntin .. ~ wtl!!t little l~n d they ov:n. 

Concress at on ~ time ,·.-as ·::illint,; to movo ti!c tt·i!Je to Inditu1 

Territory, and if it had done this I surnose there is no ou -.;stion 

but what the tribe to clay ~1o·.~d ho.ve been- uu.::er ::'eder::1l juri a diet ion. 

In the c"q>pro!lri::>tion .'.ct of July 29, l&!U (9 St:!t . 264}, authorizotion \',:.lS t._; iVOll for t}H.l O::p cud itUl' ... l of ;. , (100 to • :OVO th\1 trii.J tl WU!lt 

of the 1;tssiss ippi. :::..':}lcnditur•.; of this money c:es concii tion"'d unon 

the FTesident•s fir!lt sc;: .:ring ::1 hvn:; foe thfo tc·ibe in Inc!ion L'e~rit ory , 

and th·.=! govornr:ent v:.:tz not c .. O\:cret~ •.:o !i!1C:l(: c:te)• !'or n horr.~-~ite. 

Both the Chic~·:asnw nn,· Cilocta\•c ''ribe:J Vl'' l'O :-.rn ro".~ho <! by India n Oi'fice 

i\!sents, and bot" tribes Gho\:ecl '-' r1il in-.;ness to nC.opt th'3 Cat::1wbus. 

The Chocta ..... C'luncil on Hoven:ber 3, 12:,3, pnsaed q lnv: p•,rmittinc the 

naturalization of a su."lll group or Catuwb;!S Nho hed settlP.d e.'OOilf; 

the::., nnd this i.ct \·:as l!,ter en1urged to c;rant CIOre rr1v1lq;es to the 

newcOl!lers (ChoctuVI L::lH , ::.aG \1 , !' • :~•.k, c.nd ChoctaH V!;;s, 186, , :1 . 163). 

Congress reauthorized the fund for r ·CJiOVln.; t !:c C:>.tavJbas in the 

Appropriation ;1.ct of July 31, 1854 (10 :>tc.t. 3b) , i.Jut the Cl!'!.tter • RS 

again allowed to go by dcfnult. TJ1e G~.cctaw Tribe hud cviriently expected 

to be reil!lbursed by the G<lvernment for the land \':hich it \':as wil1in-_; 

to surrender to the Indian L"l1li1grants. An aGent reporting to the 

Indian Office on the situation VII"ote; ".:...S these Cnta·::bas were in-vested 

with the full privileges of the citizaw of th~ C!:octaw Nation, and 

became equal participants in the distri!Jut ion of their annuities, etc., 

it seems not unreasonable that any fund set cpart for the use of these · 

Catawbas should have become a portion of the cO!:mon stock for the co=n 

good, and such I learn was the general expectation of all parties when 

the (Choctaw) Act of 1853 W:l.S passed." 

At various tines since then the Indi~n Office has r eceived appeals 

for assistance in mving the Catawbe.s to western lands. In 18 72, Representative J. c. Harper of Georgia made such en appeal on behalf or the 

tribe, but no action was taken. In 1896, the Cffice Y!as informed that 

a group of Catawbas Who had gone to Indian Territory at the middle of 

the century ~ere still living there, YJithout lend or econor-J.c resources, 

This information came trom the "Catawba Indian Association", the head• 

:<uarters o! which was evidently at Fort 5-"'lith, A:J:f:. It seem.s that there 

were a total of 254 Catawbas then living in the Sta l; es of AJ:kensas an<! 

Oklahoma. PresWllll.bly, the:,• are still there, and ~;here lilUSt be in the 

Choctaw Tribe today d•~scend.:lnt3 of th<.; few v.t'.o ·.-;ere e.dopted by that 

tribe in 1!353, 

6 
821 

In 1896 also,. Cutn llbn Inllian liTiDB at San!'ord, Colo. wrote 

ini'Orr.ling the Office thut l:5 mombers Of the Clltawba Tribo were liTing o.t 

tlw.t locality and were seoklnr, p<;rmission to be adopted into the Ute 

Tribe oa the Uintah Reservation. These Indians were evidently sO!IIe 

•sho hud adopted J.ior.::ouis:n and had gone wost, p:;-obr-.bly ·.•1 th tho assist- lUlou o£ tllol L:oru:ou Church. 

Var1ouo citi:;;t!ns and public officio.ls of tho State or South 

Ca1·olina, at different times, have had nn uneasy consci nee about the 

treatment which tile tribe ro;ccivo<l c.t tho I.J.~ttl» or tho 3tuto. In l~'uG 

Governor HoY':ard in his message to the lee;islature referred to the lP.nds 

l'OI'Inerly held by the tribe and which "until lU40 Here r e coeuized by the 

:;tate as their ;>ro!'erty". It was the Coveruor' s oui:1iO!l that the 

'l'reaty of 18~0 was n<:Ter fairly CD.rrieJ out. He atate<!: "1'he wttcr 

•:rus not satis1'actor:.- arranged, ilvl'ICVE'r, and has been 1n ~ incOJ .• ulete 

form ever since. The Indians are now threatenin& to sue the State for 

the r<lCOTery of these lands !ltHi !mve c::tployod council for the ouroose 

o~ presenting t}.e matter to tJtis body !ln<i for brinzine action in the 

courts in aase no sat isfsctory arrone;f!i:lent is =de". 

At least ~\:O earlier Governors ~!:!.ude~ to the l!l':.tter in their 

a.:.nual messaGeS one: made unsucces ~i'ul <~~'1'orts to get a t',di tion!!.l l!lllcl 

for the tribe. 

HIOY'':ard's SUCC•JSsor, Governor J.nsel, hcd his Attor~ey Genercl look 

into the question, instruct in:,: him spe;iflc:ot:O.ly "to 1nvestit,;ate tmd 

repori upon the lce:tli ty or the Treaty or 1840 ' · * * whe ther the :;arne 

~~s void according to the law of the United ~tates, and wh~ther the 

Stmte ever paid to the Indians the a~ount called for by said Treaty". 

The Attorney General, !:Or. 1. :i:razier Lyon, in the reoort already 

ret erred to, reViewEod the legislation dealin~ r.i. th the tribe and the 

history of the treaty settlement. His conclusion bas already been 

quoted in part, to th8 effect that the tribe's title to the land was 

a li.mited one, and that the State hsd full power to reg".llate the tribe's 

a.f!o.irs und to denl with the tribal lands. He further concluded: 

"there is no doubt thnt tho treaty made by the State with said Indians 

in 1840 is valid, and that the Indians hcve now no right or title to 

the lands surrendered to the ;,>tate uncer that trae.ty. I a..., or the 

opinion also thnt the money called ror by said agreement has been paid 

to the Indians". 

Positive as r;ss the conclusion, it did not settle th;. n~tter. 

South Carolinians who s peak o_ficielly nre strongly of the Attorney 

General's ooinion. They assert that the tribe has been paid off ~y 

times over ~d that it is novt trading on scntl!:!entalit!·. to get favors 

to which it is not entitled. But the:;oo are others of the State's 

citizens, not sentimentalists but practical-minded bo.nk officio.ls, 

7 
822 

mill suporvi~Ol':3, etc., who ure equully r•oslti•te in dcnouuc.t~~ u 

oto.te policy which seems t.• the.-. to llnve been devoted to justifyins 

t~nd vo.lidutiug the lc.rcel'\.OUS :mlctices or lUI C<l!'l.ior GOnoratlon. 

Tho influence of this let~r group h.'ls be•m nctive euoue;h to (';et 

1ncroas1nc ayyroprintions in recent year::;, nne to br1n~ before the 

legialnture "oettloment" bills, in 1924, 1935, o.nd in tho pre:;t~nt 

s <:> ssion . It w:.s active <!uou::;h also to bring about a. hearin;:; by the 

Snbco~ ttec of thd Senate CoDll'ii ttee on Indiou .\ffoirs 1:1 ~rch, 19:.10. 

The econom.lc conditions unue1· which these Indio.ns exist are ebout 

as i opuless as they caul.: possibly b -- "'heir ;-oc1:et-size r<>3er7:ltion 

is infertile, roue;h, l'or most part uncW.tive·t.:ci <Wd undt :O:or cul ·• i voticn. And there is not enouc;h e~ui!J1.1ent to wor.: .;ven the few po.tches 

·.;h1ch could be utilized. 'l'here are, for e:o:::;a!'le, only t wo scrub rr.ules 

on the place, end one o1' these has a bacl i'oot ;.nd when he is ·.rorked 

3n e:..-tr3 J:lan h::>s to be alon~; to il~:!lp lift !lim up ":hen h.: falls. Practically spt:akin<;, there ar,. no hog::J, c!licke:1s or other stoc:: on the 

pl~ce. Some little 1ncoml) is c~rned at ~a~ lo~or, but the group is so 

b:1 dly cer.lora:ized by its S:;>iritless -:is~ance thf>t the inr.ividuals do 

not " l".':ays ll!!.lk~ r~li~ ~le \:orkers. Unfortunately, t!le i!c,prezsion h~ s 

,;rovm. up th«t si<iftl.c ssness ond be::;gary ~~· ~ in ~orn traits t~ich will 

n <: vcr che. ne,e. ,·,s a watter of f_,ct, the:'e arc soe;~ iudividucls :~: ::one: 

th<:Jn wbos~ at:rgy na pe~·s verance belie :;uch lcose ::;ene:':\lizations. 

The Co!;',Oilllt of Indian blood still re ~inin._; in t~ e group is !'r bly 

suffici ently i1i <;h, ir. aver:,ge, to entitle the roup to con:;icieration es 

Inc13Ds. Thi:; is en i1~pre: s1on only anu is :1 subject ri!:.ich r.J.E;ht be 

investi..;a·ted :Lurther, Tribal government evi<;.ptly h~s never ceased to 

function. ,'.5 f::!r es I )lava been able to wa;(e out the tribe h:J.s never been 

without its need el1ief c.nd :;uo-c:tids. Its lP.I"."'uage (of Siou!ln stock), 

is fading rapidly and for rractical purposes r:>!Y be S9.id to 0e extinct. 

Professor Sp'3c~ has beell able to record frc.g!nentary lc.:;end3 n.:~d a llied 

!DD. teria l i n the nat <ve toneue a.:1d hc.s publi.Wed o. thin •Tolume on the 

subject. JI.rlier liOrkers compiled l1.u.1ted ·•oc;:: bl:.laries. Pottery Il'.ill<1ng 

also re resent::~ a fading art, which, jud!;ing r:-o:. certo1n crude but 

rccoenizable traits, nust luve ue:tind H a lo~ history of. cultural 

develO!>I:lent, and decline. 

Reco:I:J•t!lndc.t ion: In Tiew of the fore:.;o1ng historical c.nu soc1:Ueconcm1c facts, 1 t is my reco?Ien<lation thc.t the repartroent , nter into 

negotia tions with the State Budget Colllll:i~sion to learn if sO!:!s lilllted, 

coope:-at i ve r.rrangemont cr..n not be ,·;or ked out ~:hereby the ':atawbe. '•r1be 

will benefit from the experiEnce and knowledge of our field personnel. 

The State 15 p:-cpared to s~e~d at least ~lOO,:JO for the purchase of lnnd 

and for the reh3b1l1ts.tlon of the tribe. The tribe on it:; po.rt e:·:presses 

a willin.;;nes3 to .:;o on ne\'; lend eith·:·: in t!lc ru :·.J di~to vi~1n1ty or 

furt her a wa y i.L n .:cessary. If they shoul cl be ret:oved, they ,·:oul C: liY. o 

to k e el' the ir ;;r r,::; ent r .,serv::.tion, since it h"- 3 beon the ~ur tin .. nl ce 

8 
823 

or their people for =Y .:;encr:ltion:J now. 

':!hile it is true th'l't the ~ ederal Coverr.::.ent never entered into 11 

tre:.;ty r:ith tho tribe, it :ras recor;ni=ed the tribal stc.tus of these 

Indi!llls, in a,;;.·:..·o;>ric.ting ";on.;y fo::- their rc::o·ml to Cl;luhotr.f'.. ·rh.:;rc 

muy be bgal Ci:Jtincticns .. ~icll esc::.p" c:c, bu-: it doos u·Jp0Ur ttat the 

.::atewbr<s occupy n position 1C.entical with that or the .UnbOJ:Jt:t C~nri ·::oush:ltta Indie.n.s in .\;xns, ''llo !"o;: years \;ore re:"used covernment ai.:. bec"usu 

'l:he:r \:>3re not Fcdere.l Indi::.ns. ::.ventus.lly, however, we r;ere prevt.iled 

upon to coopcr:1to •·.1. th the .>tc.tc in hel!)inz those .Llldians, &.ncl lbst 

J"une they were :;.rc:·:·:itted tc vote on .!CC•::!'tNtCe o!' the Indi::.n ;{~r.~a'll::J.tion 

;.ct. Their ~";utus is still. l)eiog invs.>ti~::tec ::o.t the :9resent tL1e. 

I believe th~.t the C.:,tav:ilo. In::i:u:s J.ro: entitled to serious consic:e:·::-

tion by the Office. I>lt~· jurisdiction \:e n3Sl!l::.e over thee sho...tld, ho·.:eve::-, 

be 11r~ted and rr~de a ~tter of definition by ::on;.ression~~ action. :he 

tribe has n sc!:lool no:t which need only be str•n:t!:.ened. Ee::l;ll cou:liticn:: 

seem to be f300c!. ;·,l:at the tribe 1·:ill need r.:ost of all 11111 be ~ co::.'binntion adninistrG.tive e.nC. e;,."tension =• ·•:ho ;:ill be able to ::ugerv1se 

the r,;settleiJcnt of the Incic.ns on th;, nevr l:md which the Stc.te is to bu:,r 

thl!!l, :l.IId th~n ~:ill begin the criticul job of rr,h"bilit~.ting these reo?le, 

!:Orally as T:ell as econor.·:ic:llly. 

9 

(Sr.d) n•:.xcy 1.:ctackl.e, 

A:il .. 1nistrative :..Ssistant. 
824 

EXCERPT FRO~f GJ::ImAL A?l'P.CPRIKl'I Olt'3 BIU. 

SECTION 54 

Provided, That the State Budget Commission is ueroby authorized and empowered to negotiate and enter into an agreement With t~e Federal Government having as its objective the rehabilitation or the Catawba Indiaoo and a tinal settlement w1 th them so that 

the State may be relieved or their support. !n the event that a 

eo-operative agreement with the Federal Government can be effected, 

the said State Budget Commission is hereby empowered to pledge on 

behalf or tho State a 6Um not to exceed One Eundred Thousand (~100, 00 0. 00 ) 

Dollars to be proVided in not less than five (5) annual installments 

for the carrying out or such agreement. ProVided, further, 'l'hat in 

the event a co-operative e.greement cannot be reached 11'1 th the Federal 

Government, the State Budget Commission is hereby authorized to 

negotiate with the Catawba Indians With tho view of ma:dng a permanent settlement with them, and to submit any proposition of s~c h 

settle~nt which may bo agreed upon to the next session of the 

General Assembly for acce~tance or rejection. Provided, further, 

That the State Budget Co~ssion is authorized to investigate as to the uersonal indebtedness of families and members of the tribe, 

and to direct tne allocation of tunde herein appropriated in such 

manner as may appear wise and expedient to it in cases of such 

families of individuals which are fo und to be delinquent in the 

payment or their just debts. 
825 

•£ treaty entered into at the Nation Ford, Catawba, betwoten 

the chiete end headmen ot the Catawba Indians or the one part lllld 

the commissioners appointed under a resolution or the legislature, 

paased December, 1839, and &Ct1118 under COIIIIIissiona tro111 His Excellency Patrick •{oble, Esqu., governor or the State or South 

Carolina, or the otber part: 

•.ilrticle first, The chiefs and headmen or the Catawba Indiana, tor themselves and the entire nation, hereby agreo to cede, 

sell, transfer, ~d COnVe) to the State O! 5out~ Ce.rolina, all 

their right, title, end interest to taeir boundary or land lying on both aides ot the Catawba Rivers, situated in the districts or York and Lancaster, and which are represented in a plat ot survey 

ot 15 milu square, made by Samuel i~ile;· ~nd dated the twenty- second dey ot Fab~ary, one thousand seven h~dred and sixty-tour, 

and now on the tile in the ortice ot Secretart or State. 

"Article second, Tue commieeioners on t~eir part engage in 

behalf: ot the State to furnish the Catawba Indiaus with a tract 

ot land or the value or $5,000.00, 300 acres or which is to be 

good arable lands tit for cultivation, to be purchased in naywood 

County, :forth Carolina, or in svme other mountainous or thinly 

populated region, where the said Indians ma;,· desire, and it: no such tract can be procured to their satisfaction, teey s~all be 

entitled to receive the toregoino amount in cash tron: the State. 

Article third, The co~iseioners t:urther engage that the 

state shall pay the said Catawba Indiens $2,500.00 at or i~diately e.tter tbe time or their relilOval, end $1,500.00 each year thereattar, tor the space ot nine years. In Witness whereof: the con- tracting parties have hereunto set their bands and attixed their 

seals this thirteenth day of t..iarch, .Anno Domini one thousand eight 

hundred torty, and in the eixty-tourth year or J.merican independence. 

(Sianed) John Springe (L.S.), signed D. Hutchinson 

(L.s.o, (Sigued) E. -'.very (L.S. ), (eignad) 

B. L. MAssey (L.S.), (signed "-!len ~rrow 

(L.S.), (aigned) Jmnea Xegg, Gen. (L.S,), 

(hie x mark), ( elgned) De.rtd Harris, Col. . 

(L.S.) (hie x mark), (eigned) "ohn Joe, 

Major (L.S.) (his X mark), (signed ftm. 

George, capt. (L.S.) (h11 X Mark), (signed) 

Philip i<egg, Lieut. (L.S.) hie :x mark), 

J. D. p. Currence tor Sem Scott, Sam!. Scott, 

Col. (L.S.) (hie :x mark), II. T. loiasaey tar 

Allen Harris, "-llen Harris, Lieu. (L.S.). 

RW1tnese or those two signaturee.• 

Recorded 2lat Dece~er, 1843. 
826 

2 

(*It is interesting to note, in passing, 

that in early Colonial. deya the Catawba '£ribe 

took over from European culture the practice 

of assuming t1. tles ot' royal. ty for its tribal. 

leaders. Attar the Revolutionury War, the 

Tribe expressed 1 ta patriotic .Americanism by 

drop:ping all royal. titles and al!lsuming ruili te.ry 

ones). 

State of South Carolina 

York :listrict 

:::now all !llen by these present3 that I, Jacob ;;. Cla,..son for 

and in consideration of the ~of $€28 .!2_ 2!.. in hand~ receipt 

whereof~ hereby acknowledged have this riay i;l'anted, bargained 

and sold to Cadwallader vones, his heirs 8nll assigns the ~~thin 

mentioned tract of land containing one hundred three acres end a 

half leased to .!:!!.. .£z. the chiefs and ~omssioners of tne Catawba 

Indiana and I d.o hereby covenant with the said Cadwallader Jones, 

his heirs and assignees tnat I, the said Jacob n. Clawson have ~ood 

title andJtar to gr~ and aleign the said tract of land-ro"t e SBITca<r.: a erJ'"o~rs-he rs ana:-aaalgn.s!"'rtne resfdu:e orthe ninety-nine yer not yet e:rpired and I do""fi:irtllermore warrl!llt 

t!iilt the s8ld trac containa the !laid quantity of one hundred three 

acre11 and a half according to the within or annexed plat. In tes- timony whereof I have here unto affixed my hand and seal this the 

~~of October, ~ thousand~ hundred ~thirty O.!!!_. 

Signed seal and delivered in 

presence of: Thomas Ellie 

(Sgd) J. il. ClnwDon 
South Carolina, 

York District 

827 

::no~ all men by these presents the.t we the head :nan o! the 

Catawba ••ation w1 th and by the consent ot our liat1on on in and tor the 

.!!!:!!!!!!. £mi .2.!. $1.50 .2£. the ~ thereot in trade to us paid or to aomeone ot our liation by""'J'Bcob 1·:. Clawson, h1'ii"li81rs, or adi:l1nistrators or aaaigna, do laue, grant ancl con1'irm unto the said J. H. Clawson, 

his heirs or assigns a certain tract or parcel or land lying and 

being in our claim in the State and District aforesaid, containing one 

hundred ~ ~ and one-halt two poles, be the same more or less,-

!2£. .E.!.~ .!!!2, ~ ~.!!!!! .2!, ninety-nina years trom the date ot 

these presents and to a tully ende~, beginning at (here follows a description or metes and bounds), to ll&.Ye and to hold said massage 

or tenement or land and premises above granted and every part !iiid 

parcel thereof, IIi. th the appurtenances thereon to belongir.g, unto the 

said Jacob H. Clawson, his heirs or assigns to the full end or the 

above defined ninety-nine years; said J. H. Clawson, hie heirs, or administrators or aasigns, yielding and paying the above deti!led rent 

yearly and annually, it not beforehand paid; we do. warrant and da!'end 

the above detined premises unto the said J. :i. Clawson, his heirs or assigns, 

!'rom us, our heirs or any nerson or persons claiming the same or any part thereof lawfully; ll8vertb.eless reserVing tor ourselves and our ;.;ation on failure ot non-payment or the above rent six months attar it becomes 

due and no distress or property to be tound on said premises that we Will then reanter said premises ll.lld repossess them as our right and title, notWithstanding anything herein mentioned. In witness 

whereof n bave hereunto set our hands ancl seals this twentieth 

!!l, or~ One thousand~ hundred end thirty one end tna tittytitthyee.r oiTndependence or the United!'tates ot'Jiierica. Be it 

understood by both the contracting parties at the time or signing 

ot these presents that in case ot any ditferenca or obligation arising between two or mora persons either by interlocking or liens or otherwise that the Indian chiefs or heirs, successors or legal 

repreaentat1Yes and superintendents shall be liable to no cash or damages that may arise by such a diftarenca ot obligation. In w1 tnese 

llhereor we have set our names and attixed our seale, etc. 

Done in the presence or 

SUperintendent• collll31ssioned 

acoordiliS to law: 

Joshua Garrison 

'111118111 Wb1 te 

John Massey 

Head men end Acting Chiets: 

•General Jacob A¥era (his mark) 

Colonel William ~rs • • 

Major Jess .4ers • " 

Captain Jllllll!la Patterson " " 

Jacob H. Clawson 
828 

Cft'ice of Secretary or State, 

Columbia, S.C., Jan. 25, 1996. 

I, D. li. Tompki~, secretary of state, certify the foregoi~ to 

be a tr~e copy or a treaty made with the Catawba Indians, and recorded 

in this off'ica in Vol. II or !:liscellaneoua 2ecords, page 234. 

\'iitnaas my hand to the great aeal of State. 

D. H. Tompkins, Secretary of State. 
829 

APRIL 11, 1944 OPINioNs OF THE SouciTOR 1261 

not include the names of any of those members 

who may have be~..:n more than one-half Indian 

blood hut less than one-half Osage Indian blood. 

The li.H prepared in 1929 was used as the basis for 

makir1g the p:Iyments required to be made by section 3 of the 1929 act. The practical construction 

of secticn 3 of the act was, therefore, that the sec· 

tion required payment only to enrolled members 

of the Osage Tribe of less than one-half Indian 

blood and not to require payment to persons of 

more than one-half Indian blood but less than onehalf Osage Indian blood. 

I understand that several enrolled Indians in 

this latter category were not issued certificates of 

competency in I 939. I understand further that 

when Indians falling within this category have 

died, their funds have been handled, during the 

course of administration of their estates, under the 

first provision of section 4 of the 1929 act. 

Thus, it may be said that the Department has, 

for a period of 15 years, consistently cons-trued sections 3 and 4 of the 1929 act in a manner which 

retains control over the funds of members of the 

Osage tribe of one-half or more Indian blood, regardless of their quantum of Osage Indian blood. 

In my opinion, the Department's practice of 

considering Indians such as Andrew Baconrind as 

coming ·within the first provision of section 4 of 

the act of March 2, 1929, supra, has been proper 

and I see no reason why the Secretary should not 

continue to exercise his discretion in the matter 

of turning their funds over to administrators or 

executors. 

However, it seems unfortunate to me that you 

did not adopt my suggestion that you recommend 

to the Secretary that he exercise his discretion in 

this case and turn the money over to the administrator of the Andrew Baconrind estate in view 

of the fact that none of Andrew Baconrind's probable heirs is a restricted Indian. You stale that the 

Superintendent of the Osage Agency raised the 

question of whether or not such action in this 

case would set a precedent which might affect 

estates in ·which restricted Indians might be interested. I can see no such danger. Every time the 

Secretary exercises his discretion as to whether or 

not he will turr1 over to an administrator or an 

executor the funds of a deceased Osage Indian of 

more than one-half Indian blood that discretion 

is based on the facts and circumstances of the case 

in which he is exercising his discretion. Since the 

facts and circumstances varv with each case, no 

case becomes a precedent fo~ another. 

Solicitor. 

FowLER HARPER, 

QUESTIONS OF THE CATAWBAS' 

IDENTITY AND ORGANIZATION AS A 

TRIBE AND RIGHT TO ADOPT IRA 

CONSTITUTION 

April 11, 1944. 

1\1 emorandum for 

Assistant Secretaryr Chapman: 

The attached letter which Commissioner Collier 

recommends that you sign would authorize the 

Catawba Indian tribe of South Carolina to organize and adopt a constitution under the act of 

June 18, 1934. I coPcur in this recommendation. 

I ant somewhat disturbed by a statement in Commissioner Collier's letter of transmittal. He states 

that "The Federal Government has not considered 

these Indians as Federal wards." If by this statement the Commissioner implies that the Catawba 

tribe has not been recognized by the Federal Government, I must disagree. Indeed if such were the 

case, the tribe could not now take advantag of 

the act of June 18, 1934. I find, however, that the 

tribe has received Federal recognition. The problem can be broken down into two questions. In 

the first place, is there a political organization 

which can properly be characterized as a tribe in 

the conunonly accepted meaning of that term? In 

the second place, has there been Federal recognition of tribal existence? The files are full of evidence which is conclusive that a tribal organiza. 

tion has been continuously maintained by these 

Indians over a long period of time. The Indians 

have done business as a ·tribe and the relationship 

between the tribal organization and its members 

conforms to the usu.al tribal pattern. There can be 

no doubt that the Catawba Indians now exist as a 

tribe and have had a known tribal existence for 

almost a centurv. 

The Congress' has recognized the existence of 

the Catawba Indian Tribe in two enactments, the 

act of July 29, 1848 (9 Stat. 252, 264), and the act 

of July 31, 1854 (10 Stat. 315, 316). These acts 

appropriated funds for the removal of these Indians west of the Mississippi River, apparently for 

settlement among the Choctaw and Chickasaw 

tribes in the Indian Territory. The monies thus 

appropriated were never used. Had the plan been 

carried out, it might well have been that the Ca· 

tawba Indians would have lost their identity as a 

tribe by becoming adopted or amalgamated with 

other tribes. As it turned out, however, they did 

not lose their identity and have retained their 

tribal organization ever since. It is to be observed 

that the act of July 29, 1848, makes specific ref. 

erence to the Catawba Trib< o£ Indians. And alExhlblt I 

July 2, 1993 

House Hearlnp - H.R. 2399 
830 

1262 DEPARTMENT OF THE INTERIOR APRIL 11, 1944 

though the act of July 31 , 1854, referred only to the 

"Catawba Indians," it seems that at that time it 

was a practice of legislative draftsmen to refer to 

almost all tribes in such terms, a practice which is 

occasionally followed to this day. 

I am persuaded, therefore, that the Catawba Indian Tribe exists, as such, and that it has received 

recognition by the Federal GovernmenL The Catawba Indians are therefore entitled to vote on the 

constitution which would be submitted to them by 

the attached letter of transmittal. 

FoWLER HARPER, 

Solicitor. 

RAILROAD RtGHTS-OF·W A v-LIABILITY 

FOil DAMAGES 

April 25, 1944. 

Memorandum for the Commissioner 

of Indilln Affairs: 

I am returning herewith for your further consideration papers relating to a claim on behalf of 

C. B. Suzen Timentoe, an Indian of the Colville 

Reservation, which you forwarded for transmittal 

to the Attorney General. 

It appears from the attached materials that on 

March 24, 1942, Mr. Timentoe's seven-year-old 

milk cow was struck and killed by Train 254 of 

the Great Northern Railway Company at a point 

adjacent to the railroad's stock corrals at Malott, 

Washington. At this point the right-ol·way property is feneed along the weot boundary line. The 

railroad is reported to have acquired extra land at 

this location and installed two tracks thereon to 

provide facilities for loading livestock at the yards 

and fruit from the warehouse and packing sheds 

also located on land owned by the company. There 

is no fence along the east boundary of the extended property which runs approximately one-half 

mile before narrowing into the standard right-ofway. Further details of the accident are not set 

forth. 

Mr. Timentoe presented his claim December 12, 

1942, and it was declined by the railroad January 

21 , 194~. Thereafter, the matter was referred to the 

Superintendent of the Colville Indian Agency who 

wrote the District Claim Agent of the Great North· 

ern Railway Company SefM"mber 18, 1945, that 

the value of the cow had been reliably fixed at 

$100, and making demand for payment of such 

sum. In that leuer the Superintendent, after referring to a stipulation executed by the company 

and implying that the company's liability under 

it is governed by Federal Jaw, pointed out that 

"State laws are not applicable to Indian land." In 

response to this leuer, counsel for the railroad construed the stipulation to require the company's 

liability for damages to be measured by the law 

of the State of Washington and concluded: "As 

the animal was killed at station grounds, there is 

no liability under the state law." Subsequent discussion of this matter has seemingly proceeded on 

the assumption that counsel had correaly stated 

the extent of the railroad's liability under the law 

of Washington. 

On the basis of the facts disclosed, this assumption may not be justified. Under sections 10507-

10509 of Remington's Revised Statutes of Washington,' common law rules of tort liability have 

been modified only in so far as railroads have been 

affirmatively required to fence certain portions of 

their rights-of-way, the failure to fence being made 

prima facie evidence of the railroad's negligence in 

actions for killing livestock. These statutes, the 

court said in Hansen v. Northern Pacific Railway 

Company, 90 Wash. 516, 517, 156 Pac. 55~ (1916), 

do no more "than make the killing of stock upon 

an unfenced right of way prima facie evidence of 

negligence. The object of ·the statute is twofold; 

to put the burden of proof upon the railroad company where stock is killed upon its right of way, 

and to protect those who operate and travel upon 

trains from the hazard of derailment and other 

accidents." See also Jolliffe v. Brown, 14 Wash. 

156, 161, 44 Pac. 149 (1896), where, in construing 

an earlier but similar statute, the court said that 

"Where the fact of the killing has been proven, it 

shifts <he burden ol proof as to negligence upon 

the defendanL" • 

Section 10507 specifically imposes upon every 

railroad "outside of any corporate city or town, 

and outside the limits o[ any sidetrack or switch."' 

the duty of constructing and maintaining in good 

repair "on each side of said railroad, along the 

line of said right of way ... a substantial fence, 

and at every point where any roadway or other 

public highway shall cross said railroad, a safe and 

sufficient crossing must be built and maintained. 

and on each end of such sidetrack or switch, outside 

of any incorporated city or town, a sufficient cattleguard ... " In Bcnn v. Chicago, Milwaukee & St. 

Paul Railway Company, 89 Wash. 522. 154 Pac. 

1082 (1916), three colts were killed by a train on 

a "side or passing track" along which the railroad 

1 Thoc acctions codify th(: prO\-isions o( an act of 1905. 

arDnl<kd co include dcctric nilmad companin. in 1907. 1 This eadin' statute wu held to have been repealed by 

iiDplication whm lhc 190~ act wa~ p:nA('(l. H11flman v . Or,.. 

•on RUroM " Ntrlli•tJtion Company, 57 Walh. 494. 207 

P..:.~ (1910). 
831 

UNITE8 ST ~Ti::S 

CE?ARTMENT Or THE: INTERIOR 

OFF;CE Or ThE SOLICITOR 

Eonora~le J~~es W. Moorman 

Acting Assista~t Attorney Ge~eral 

Land and Natural Reso~rces Division 

Depart~ent of Justice 

washington, D.C. 20530 

Dear Mr. Moorman: 

This letter constitutes a request for your De?a:t~e~~.to institute 

lecal action on ~~half of the Cat .. w~a Indian Tribe to re=over its re~e:va:ion in South Caroli~a. The issue in this litigation is 

whether South Carolina's atte~pt to acauire title to the Cata~ba 

reservation by virtue of an 1840 Treat~ was valid under : he 

Non-Intercourse Act, 25 U.S.C. S 177 . We conclude :hat t~e Tribe 

can esta~lish a ?rima facie case under the Ncn-Ir.t~:cou:se Act, 

that the 1840 Treaty was void, and that the Tribe is ~~ere fo re 

entitled to recovery of its re~~rvation. 

The Cataw~a clai~ is for appr oxi~ ately 140,000 a cres (or 15 

mi:es square) to w~ich they h~ve had a vested property ri9ht 

sir.ce 1703. ?riur to ~hat Ca ~e, the Tribe occunied and controlled 

a ~uch Iar~er area by aborigi ~al title. 9owever: in 1763, 

the Tribe relinquished their claim to the larger area in return 

for Great Britain's assurance that t he y would have unmcl~sted 

oossession of the 15 mile souar e .reservation . When the u~ited 

S~ates succeeced to Great Britain's sovereignty in 17 83 , our 

new government did not abrogate the 1763 Catawba Treaty. Therefore, 

according to settled rules of international law, which are acknowledged by the u.s. Supreme Court, the Catawba retained 

a vested right in their reservation, as sacred as the fee 

simole of a non-Indian, which the United States Government 

was-bound to respect. See Mitchel v. United States, 9 Pet. 

(34 U.S.) 711, 733 (1835). 

Exhibit J 

Jui1Z, 1993 

House Hearlnp • H.R. l399 
832 

-2-

Th.e successive Non-Intercourse Acts, enacted to protect Indian 

property by requiring federal consent to the attempted conveyance 

of any Indian lands, ~ere as applica~le to t~e Catawba reservation 

as to any other kind of tribally held land. Joint Tribal 

Council of the Passamaauoddy Tribe v. Horton, 528 F.2d 370 

(C.A. l 1975). By 1840, the Catawea's treaty reservation was 

overrun by non-Indians who continually ignored the Tri~e's 

protests; non-Indians also occupied the reservation lands under 

a state instituted leasing system whereby the lessees owed rent 

to the Catawba but often did not pay it. In 1840, the Tribe 

finally purported to convey their remaining title and interest 

in the 140,000 acres to the State of South Carolina by treaty. 

The federal gcvern:nent was in no wa y involved in the negotiati ~.s 

and never subsequently gave its consent. The 1840 conveyance 

was therefore void under the Non-Intercourse Act. Shortly 

after the 1840 Treaty, the Tribe sought return of the reservation 

stating the Treaty was procured by duress, that the terms were 

unfair and that the State wasn't meeting its obligations under 

the Treaty. Under the Non-Interco~rse Act, the United States, 

as protector of Indian held lands, had the duty to protect t h e 

Catawba reservation, to set aside t~e 1840 Treaty if it didn't 

consent to it, and :o assist the Catawba in recoverin~ thei~ 

lands. ?assamccuoddv, ~· 

The United States has never taken any action to fulfill its duty 

to help the Catawba recover the land. In fact, the Department 

of the Interior has twice refused, in 1906 and 1908, to take 

action when the Tribe's la~yers pointed out the Tribe's claims 

under the Non-Intercourse Act. But mere lapse of time and failure 

of the federal government to act cannot eradicate either the 

Catawba's rights to their land or the federal government's 

continuing duty to help them get it back. The Act of September 

21, 1959, which terminated federal services to the Catawba and the 

applicability of federal Indian statutes similarly did not extinguish the 1840 Treaty claim or the government's duty of 

protection. The termination language in that 1959 statute 

is prosoective and does not affect pre-existing legal rights. 

Moreover, the Supreme Court in Menominee Tribe v. U.S., 391 

U.S. 404 (1968), and in many other Indian land cases, required 

clear evidence of Congressional intent before finding an 

abrogation of Indian rights. The legislative history of the 

1955 Act shows that Congress, as well as the administering 
833 

-3-

agency, believed the Act ~as passed for one re3sor.--to li~uidate 

a 3400 acre reservatio~ ana to t~rminate limi~ed federal benefits 

both of which were created by a 1943 agreement between tne Tribe, 

the State of South Caroli~a. and the Department of the Interior. 

In short, the 1959 Act was a means of dissolving the legal 

relationship set up by that 1943 agreement. In fact, Conoress 

was unaware of the status of the 1763 treaty rese:vaticn,-of 

the Non-Intercourse claim pertaining to it, and finally of its 

own duty under the Non-Intercourse Act to protect the reservation. 

The Tribe itself certainly did not contemplate th~ 1959 Act as a 

means of cutting off their legal claims to the 1753 reservation 

because they stipulated, in the petition whic~ gave =ise to the 

1959 legislation, that those claims should not be affected. 

The action we hereby recommend is that the United States 

finally act upon its long neglected duty under the NonIntercourse Act to nullify the 1840 Treaty with South Carolina 

and restore possession of the 1763 Treaty reservation to 

the Catawba Tribe. 

An alternative source of the United States 1 duty to bring this 

suit to quiet title to the 1763 reservation arises from the 

1959 Act itself. Since 25 U.S.C. S 935 did not abrogate the 

Cata~ba's Non-Intercourse Act claim, the 1763 reservaticn mioht 

be a tribal asset subject to t~e distribution previsions o~ . 

25 U.S.C. 5 933, as was the known 3~00 acre reservation. It 

would t~erefore be incumbent upon the Secretary, under S 933, 

to bring legal action to settle ownership of the 15 mile 

square reservation so that he could later determine whether 

that reservation should be conveyed to tribal members under 

s 933(d) or sold pursuant to S 933(f). 

We recommend that the appropriate cause of action be a suit 

for ejectment of the current possessors of the tract and mesne 

profits for the period of time the Tribe has been dispossessed. 

This is the third time the Catawba Tribe has petitioned the 

Department to seek relief on their behalf and they have been 

twice refused for legally incorrect reasons. The atta~hed 

materials include legal research by our staff attorneys and 

historical materials that should aid in your preparation of 

the case. 
834 

-4-

We recommend that you m~et ~itj us as soon as possible, and 

with th~ Trib~'s represent~tives, to dizcuss the handling of 

the claim. Tje Trite has already held several meetings with 

the South Carolina Governor and Atto:nev General to discuss 

settlement of the claim. we u~cerstand.that discussions 

have reflected a mut~al i~tent to resolve the matter in a wav 

that would satisfy the parties without endangering the State~s economy o: interfering with the orderly development of 

residential and industrial real estate. Since we agree with 

that approach, we should infor~ all concerned parties that 

~e conc~r in the validity of the Catawba claim, that we 

would p=efer an amicable, orderly settlement to lengthy, 

disruptive litigation, and that we will lend immediate assistanc 

in negotiations for a just and model settlement. 

Sincerely, 

Solicitor 

Attachments 
835 

Litigation R~?ort Fegardi~s T~~ Cc~cwba Land Clcirr. 

The Cata~ba Tribe has as~ed this De?artm~~t to rec0mmend 

legal action en its betal~ against the State of South 

Carolina and individual titleholders to recover a~~roxiffiately 140,000 acres of their original reservatio~: After inde~endent researc~ a~~ :eview of histo!iccl rr3terials, 

~e c;~clude t~at the !:ibe has a ca~se of action u~der the 

federal Indian Non-Interco~:se Ac~ (25 U.S.C. § 177), in 

line ~ith the decisions in Joint Tribal Cou~cil of the 

Fass:::nac'.loddv Tribe v. 11ortor,, 528F'-:-2d-J"'/O-(C~A-:-1I975), 

a!"ldK~rt~;a:=:sec.t-TrT5ev. Southern R'lode Island Develo~:nent Corp~-;---m-f.-Supp--:-ffi ( 1976);---rQr-the recoveryoflt_s __ 

tribal lands which were alienated in an 1840 Treaty with 

South Caroli:1a without the consent of the Cnited States 

Concress. Ke f~rther conclude that the United Stetes has 

an 6bligation to bring an action on behalf of the Tribe 

to obtain ret~rn of their lands to tribal ownership. 

The Catawba claiffi that the Tribe had recoonized title to a 15-mile square 144,000 acre reservation in South Carolina. 

This title was confirmed by a 1763 Treaty with Great 

Britain. The Cnited States has never abrogated the 1763 

Treaty, either in the treaty of cession from Great Britain 

or in any subsequent action. By 1800, the major part of 

the reservation was illegally settled by non-Indians in 

spite of federal, tribal, and colonial efforts to stop such 

trespass. In the early 1800's, South Carolina attem?ted to 

regulate settlement on the reservation by enacting leasing 

laws under which the settlers had to sign leases with the 

Tribe for 99 vear terms. These leases noted the Tribe's 

reversionarv interest. In 1840, South Carolina concluded a treaty with the Tribe (Treaty of Nation Ford) for the 

remaining interest the Tribe held in the leased reservation. 

Federal consent to the Treaty was never obtained. Following 

the 1840 Treaty, the State purchased a 630 acre tract which 

it still holds in trust for the Catawba Tribe. 

Exhibit K 

July 2, 1993 

House Hearings · H.R. 2399 
~6 

-2-

The Tribe has argued to both the State and this Department 

since the late 1800's, that the 1840 Treaty with South 

Carolina is void for lack of federal consent, that the terms 

of the Treaty are unconscionable and that South Carolina 

failed to adhere to the terms of the treaty; in short, the 

Tribe has maintained that it is entitled to return of the 

15-mile square reservation the State illegally atteffipted to 

acquire by the 1840 Treaty. Their claim against the State 

under the Indian Non-Intercourse Act has not been abrogated by any Congressional action, including a 1959 statute 

which ter~inated a 3,434 acre reservation set up for the 

Catawba in 1943 pursuant to a~ agree~ent between this Depart 

ment, the Tribe, and South Carolina. The Tribe, therefore, 

seeks recovery of the original 144,000 acre reservation less 

the 3,434 acres terminated in 1959; the Tribe also seeks 

money damages. 

The following litigation report contains a factual su~~ary 

and following that, a discussion of the relevant law. 
837 

-3-

The litic:>ation request subrr.itted by Native hinerican ;;.ights 

Fund (NhRF) contains a well-documented history of the Catawba 

Nation ana its relations with the various governments. This 

factual sc~~ary ~ighlights significant historical facts with 

page references to historical docuroe~ts and t~ lengthier 

discussions contai~ed in the NhRF litigatio~ request. 

The clai~ed 15-ffiile square reservation is part of a large: 

area that had been occupied by bands of the Catawba Nation 

since at least the mid-16th century (pages 14-18). Du:ing 

the 1700's, the Ca~awja Natio~ beca1.1E a strong ally o~ 

Great Britain and of the province of South Caroli~a, acting 

as a buffe: against other more hostile t:ibes ana providing 

a safe trade route for the colony. Good relations thus prevailed between the Tribe, South Carolina and Great Britain, 

and documents from this period attest to recognition by 

Great Britain and South Carolina of Catawba occupancy of 

the area (pages 25-26). In 1754, the Governor of South 

Carolina, w~o had been receivina co~olaints from the Cata~~a 

about naG-Indians encroac~ing o; thel: l~nds, drew a protective area of a 30 mile radius arou~d t~e Catawba Tow~ as 

reserved for the Indians and ordered Korth Carolina to keep 

its settlers off that land. (Vol. I, httach. B-2, B-3) 

However, non-Indians continued to move onto Catawba land i~ 

defiance of the Governor's order. The continuing encroachment stemmed in part from an ongoing boundary dispute 

between North ana South Carolina. Therefore, in an attempt 

to settle the boundary dispute and instill order in the 

colonial settlements, Great Britain sought a treaty with 

the Catawba. The British Superintendent of Indian hffairs 

reported concluding a treaty with the Tribe in 1760 (Treaty 

of Pine Hill). ~hile the treaty has not been located, its 

terms, as described in a messace to the South Carolina 

legislature, settled the Cat3wba on the currently claimed 

15-mile souare reservation, in return for their relinouishment of ciaims to the larger area (Vol. II, Attach. EE). 

Shortly thereafter, with the conclusion of the french and 
-4-

Indian Kar, the Indian tri~es were greatly concern d about 

how Great Britain would treat their occuoancv rich s. In 

order to quell uprisings by the Indians,· the-King ssued 

a Royal Proclamation in 1763 asserting sovereignty over Indian lands and prohibiting alienation of those Indian 

lands not ceded to or purchased by Great Britain except 

with its consent. (Page 33) In the same year, the British 

Superintendent and Colonial Governors were directed by 

the King to meet with several tribes to allay their fears 

and assure the~ that Great Britain would protect their 

lands. As a result of that meeting, the Crown concluded a second treaty with the Catawba, in 1763, specifically 

confirming the 15-mile square reservation and assuring 

the Tribe that they would not be molested in their 

possession of the area. (Page 36) 

Nonetheless, non-Indians continued to move onto Catawba 

land without tribal or government permission. ~hile 

government efforts to prevent the encroachment were futile, they at least evidenced continued recognition 

by South Carolina and the British Government that the 

Catawba held title to the land. l/ 

lf E.g., 1n 1771, following numerous complaints by the 

Catawba, the Governor of South Carolina issued a proclamation ordering all colonial officials to be diligent in 

protecting the Indians' treaty rights confirmed in the 

1763 Treaty of Augusta (Vol I. Attach. T). In 1772, a plan was proposed to the South Carolina legislature for a non-Indian (Drayton) to lease the entire reservation so that he could then better control the non-Indian 

settlers. The British Superintendent learned of the plan 

and opposed it as being an alienation of Indian land 

without British consent, and thus a violation of the 1763 

Royal Proclamation. The King approved the Superintendent's 

action (Vol. II, Attach. II). In 1773, the Catawba met 

with the South Carolina Lieutenant Governor concerning 

continuing encroachment on the lands. The record of the 

meeting indicates the following understanding on the part 

of the Tribe and South Carolina: 
839 

-5-

In 1782, the Cata~b Nation petitioned the Continental 

Con~res~ for protec ion of their 15 mile tract. They 

had foucht on the s de of the colonies during the revolution, h~d fled .to V rginia to escape the British--their 

former ally--and ha then returned to their reservation to 

find even increasing settlement by non-Indians. Congress 

responded to the Ca::wba petition in 1783 by directing 

South Carolina to take ~hatever measure it thought 

suitable for the satisfaction and security of the Tribe 

in the lands reserved for their use. 

~espite tte e~act~e~t of t~e ~o~-I~tercou~se Act i~ 1790, 

which reserved federal jurisdiction over Indian -land 

transactions, South Carolina began regulating the leasing 

of the Catawba Reservation pursuant to a series of statutes 

enacted from 1808 throuch 1838. ~hile one of those statutes 

actually declared the 9§ year leases to be the equivalent 

of a freehold, these statutes, as well as the form leases 

commonly used, (Vol. II, F-89, G-20) explicitly recognized 

the Catawba's interest in the reservation. (See Dept. of 

Interior Memo, Vol. I, G-13 et seq.) 

By this time, the strength of the Catawbas was greatly 

reduced by disease and war; their land base was eroded 

against their protests, first by unaJthorized settlement 

and then under a S:ate leasing system. Even when the 

Catawba agreed to rent, rents were often never paid or 

were paid in whiskey or relatively worthless household 

goods. In 1840, the State concluded a treaty with the 

. it was no such thing for [the 

Catawbas] would not part with their 

lands to any people whatsoever, that 

as long as any Indian remained the 

Land was to belong to them but if they were Dead the Land should belong to 

the Ring .. (Vol. I, Attach. R). 
840 

-6-

Tribe for cession of all the Catawba's remaining right, 

title and interest in the 15 mile scware reservation 

(Vol. II, Attach. KK and LL). The ireaty, as discussed 

infra in Part a, was never consented to or ratified bv 

Congress. Under the terms of the Treaty, the State agreed 

to pay $5,000 for a new reservation in North Carolina, 

to pay the Catawba $2,500 at the time of the removal and 

$1,500 annually for a term of nine years. The consideration offered by the State was considerably less than the 

rental money due the Catawbas under the remainder of the 

99 year leases. The Catawba ~ation has continually 

asserted that such terms were unconscionable and that 

they were procured by duress. Furthermore, the Catawba 

argue that the terms of the Treaty have not been met 

because the State never purchased a reservation in North 

Carolina. Instead, the State purchased a 630 acre tract 

in the midst of the ceded 15-mile square reservation 

for the sum of $2,500. This tract is still considered 

the State reservation. 

The strength of the Tribe declined further after the 1840 

Treaty, with some tribal members seeking refuge outside 

South Carolina. In 1846, and again in 1854, the United 

States authorized appropriation of funds to remove the 

remaining Catawba west of the Mississippi. 9 Stat. 264; 

10 Stat. 316. However, the funds were never appropriated 

and no official removal program ever took place. This 

is discussed in Part B, infra. 

In 1904, the Tribe retained an attorney, Chester Howe, 

to press their Treaty claims. Howe petitioned the 

Department of the Interior to institute action on behalf 

of the Catawba for return of the 15 mile square reserva- tion on the grounds that the 1840 Treaty was void under 

the Non-Intercourse Act and that the State failed to 

adhere to the terms of the Treaty (Vol. I, Attach. G-19). 

The Department denied any obligation to represent the 

Tribe and advised Howe to press the claims against the 

State (Vol. I, Attach. G-95). The Tribe presented its 

argument to the South Carolina legislature which ordered 

the State Attorney General to examine the legality of the 
841 

-7-

40 T:e~ty. I~ !907, t~e ~t~c.r~e~· G~~eral c:rcluded ~~at 

t e 1840 Treaty ~as valij b~=a~se tri~a: rre~.~·ers were 

S ate India~s ~ith no more ~~a~ a righ: o~ occ~?ancy c~ 

t e lands. (Vol. I, G-1) In 19GE, the ~ribe aqa1n 

petitioned Inte=ior to institute ac~io~ on their be~alf 

for the recovery of their reservation. T~ey were denied 

(Vel. I, F-103, F-104) again en the grounds that no relationship existed bet~een the fe~eral governrrent and 

the Tribe, and on the grounds that the Tribe's claims ~ere against the State and the Fed~ral gcvernffient should 

not beco~e involved. (Vol. I, F-101) 

During the 1930's, the Ca:2~~2 and the State joined in 

efforts to secure a~ a~ree~ent whereby the Fejer~l governme~t would undertake reha~ilitation of the Tri~e. T~o 

bills were introdJced in Congress to secure a fid~=iary 

relationship bet~een the Tri~e and ~~e govern~ent, but 

the bills were never re?orted o~t of the a?;ropriations 

coffimittee, due nerhaDs to I~terior De~artrr1e~t ooDosition. 

(Reoort of Sout~ Car~lina Reoresentatlve Richar~~. Vol. I, 

H-11 The Department continu~d to deny a fiduciary 

relationship and declined to provide assistance to the 

Tribe ~ithout specific Co~gressional direction. (Bradford 

Report, Vol. 1, G-42) E~~ever, an asree~ent ~et~een the 

Deoartment, the Scate, and the Tribe was negotiated in 

19~3 pursuant to w~ich tte Sta:e p~rchased lands and 

conveyed theffi to the Federal government in trust for the 

Tribe. The Cata~ba were also permitted to organize a 

tribal government under the Indian Reorganization Act 

(IRA), and the Department agreed to provide limited federal 

services (Vol. 1, G-71). The agree~ent was designed only 

to effect a limited rehabilitation program and the Department claimed not to recognize or undertake any general 

trust relationship with the Tribe by virtue of the agreement. Significantly, the Department refused, on the 

advice of the Solicitor (Attach. TT, Vol. II), to include a provision in the agreement extinguishing the Tribe's 

treaty claims against the State, even though the State 

wanted such a condition inserted in the agreement. (Vol. 

I, G-60, G-61) 
842 

-8-

The relationship created by the 19C3 agreement lasted only 

16 years. In 1959, the Cata~ba Tri~E petitioned for re~oval 

of federal restrictions on its land and for division of its 

assets (consisting primarily of the 3,434 acre reservation). 

Significantly, in its petition, the Tribe specified that it 

wanted this done without jeopardizing its treaty claims 

against the State. (Vol. II, Attach. UU) In response, 

the Interior Departm~nt drafted a bill which was enacted 

in substantially the same form (25 C.S.C. S 931 et seq.). 

The act orovided for distrib~tion of tribal assets, removal 

of restr1ctions on ~a:keta~ility of t~e 3,434 acre reservatio~, c~~ cEss:tio~ of f~~eral se:vices, but it preserved 

the rights of the Tribe and its ~e~bers under South Carolina 

law. This is discussed in ?art C, infra. 

Discussion 

There are four elements of a orima facie case under the 

Indian Non-Intercourse Act wh1ch are suggested in the 

~arracansett opinion: 

(1) the claimant is a "tribe of Indians" 

within the meaning of the act; 

(2) the land claimed is covered by the 

Act as tribal land; 

(3) the United States has never consented 

to its alienation; and 

(4) the protection of the Non-Intercourse 

Act, including the Federal government's 

duty under the Non-Intercourse Act to 

protect reservation land, has never been 

terminated. 418 F. Supp. 798 at 802. 

The first element requires little discussion. The Catawba 

Nation was an important Eastern tribe dominating much of 

South Carolina fqr at least a century prior to the Treaty 
843 

-9-

of 1763. I: ~as ~re2ted as soc~ by the E itis~ and 

colo~ial c~~:~~e~t, a~d t~e ~:a~e o! ScJ ~ Caro~i~a has 

contir.uc:l 

frorr, t!"le 

the StatE 

A. 

~· r~cog~ize~ and treated t~e Ca a~~a as a tribe 

8th ce~tury t~rough the orese~t day. In fact, 

still holds a 63C-acre reser~ation for them. 

The Land Claimed is Covered bv the Act as TfiS21Lana--:------·---------------

:-:-le prctl2cticr. of t:-:e !;v;:-I:~terco,..::se J...cr. c?;::;.ies to ~;-Jc5ia:-. 

la~~ ~~e:~er t~e title t~,ereto res~s c~ a:~r1~~~2l o~~ership or formal gover~~ent recognition t~ereof by treaty 

or statute. U.S. v. Sc;r.ta Fe Facific R. Co., 314 ;,;.s. 339, 

347 (1941). Tne-Ex~ensive-and-~ell-doc~rr,er.~ed history of 

the Ca~a~~a establis~es that the Cata~ba Nation had both 

aborigir.al and reco~nized title to t~E area, and its lands 

are therefore clearly ~ithin No~-~~terco~rse Act protection. 

The Cata~bc;'s claim to the land is based on recoonized 

title acquired by virtue of the 1763 Treaty in ~hich Great 

Britain confirmed the Catawba's exclusive ri9ht to the 

area w!"lich they had occupied since t!"le early 1600's. (See 

letter written in 1772 by the British S~perintendent who 

negotiated the 1763 Treaty (Vol. II, Attach. HH).) 

The legal significance o~ Indian title which is confirmed 

by treaty with Great Britc;in was discussed by the United 

States Supreme Court in Mitc!"lel v. Uni!_~~-!?_tates: 

By thus holding treaties with these 

Indians, accepting of cessions from 

them with reservations and establishing 

boundaries with them, the King waived 

all rights accruing by conquest or 

cession, and thus most solemnly acknowledged That the Indians had rights of 

property which they could cede or reserve, and that the boundaries of 

his territorial and proprietary rights 

should be such and such only as were 

stipulated by these treaties. 34 U.S. 

( 9 Pet. ) 711 , 7 4 5 ( 18 3 5) . 
844 

-10-

F~r:~er~ore, sue~ I~jia~ tit!e s~rvi~ed t~e A~~ric~n 

R~volutioG an~ the resulting chang~ in sovereigns: 

"That by the law of nations, the 

inhabitants, citizens or subjects of a conquered or ceded country, territory, or province, retain all the richts of 

property which have not been t~ken 

frorr them by orders of the conqueror, or the laws of the sovereicn who 

acquires it by cession, an~ remain 

under their forffier laws until they 

shall be c!:;a:-~ge~.· !i_~~~~~l~_l'.S., 

~~~ at i33. 

"Khen they acquired these provinces 

by the treaty of cession, it was not 

stipulated that any treaty with the 

Indians should be annulled, or its 

obligation be held less sacred than 

it was under Spain; nor is there the 

least reference to any intended change 

in relations of the Indians towards the 

United States. They carne in the place 

of the former sovereign by compact, on stipulated terms, which bound them to 

respect all the existing rights of the 

inhabitants of whatever descriotion 

whom the king had recognized a; being 

under his protection. They could assume no right of conquest which may 

at any time have vested in Great Britain or Spain; for they had been solemnly 

renounced, new relations established 

between them by solemn treaties; nor did they take possession on any such 

assumption of right; on the contrary, 

it was done under the guarantee of 

Congress to the inhabitants, without 

distinction, of their rights of property, 

and with the continued assurance of 

protection. Mitchel v. U.S., suora at 

753. See also ~or~ester-v~Georgia, 

6 Pet. , 515, 56 0 ( 18 3 2) . 
845 

-11-

Tte Catawba's treaty title also s~rvived the unsettled 

period i;nmediately follo;..·ing the Treaty of Faris and 

prior to the ratification of the Constitution, when the 

Federal oovernm~nt was in its formative staaes. Even if 

South Carolina could have extincjished Indi~n title to 

the treaty reservation during that period, an arguable 

point, it did not do so. In fact, the state legislature 

eGacted a series of statutes during the period from 1808 

to 1838 to control the leasing of the Catawba's 15-rnile 

square reservation and in so doing recognized the Tribe's 

i~terest in the reservation. More significantly, the 

Treaty of 1840 itself shows that South Carolina believed 

it had to ourchase the Catawba title to the 15-mile 

square tra~t. ~/ 

£1 It should be noted that our conclusion that Catawba 

lands recognized by the Treaty of 1763 are protected by 

the Non-Intercourse Act is contrary to the views of this 

Department in 1904 and those of the Attorney General of 

South Carolina in 1907. The 1907 ooinion was based on the pre~ises that the Catawba were ~a-called "state Indians" 

with a mere right of occupancy, that their reservation was reserved in a 1763 Treaty with the State, and that no federal treaty right existed. He, therefore, concluded 

the Non-Intercourse Act did not apply to the Catawba 

reservation and that the State always had the authority 

to deal with the Catawba reservation as it wished. The 

South Carolina Attorney General obviously did not understand 

that the 1763 Treaty was concluded under the authority 

of the British Government, nor did he appreciate the legal 

significance of that fact. And, as to the "state Indian" 

concept, the Passamaouoddv and Oneida decisions have made 

it clear that the Non-Intercourse Act did apply to Indian 

lands within the boundaries of the 13 colonies. 
846 

-12-

Section 12 of the 1834 ~o~-Interco~rse Act, in effect at 

the time of the 1840 Treaty of Kation Ford, required 

federal consent to validate any ?~rported transfers of 

Indian title. But, Con~~ess did not ever consent to or 

ratify the 1840 Treaty.- The only federal legislation 

passed during the period, concerning the Catawba, con- sisted of two statutes authorizing the appropriation of 

fends for re~oval of t~e Ca~2~~2 ~est of ~he ~ississipp~: 

Catawba Indians.--For the removal of 

the Catawba Tribe of Indians, now in 

the limits of the State of North 

Carolina, to the Indian countrv west of 

the Mississippi, with the cons~nt of 

said tribe, under the direction of the 

?resident of the united States, a sum 

not exceeding five thousand dollars: 

Provided, No oortion of this sum shall 

be expended, for the purpose of removing 

said Indians, until the President shall 

first obtain a home for them arnonc some of the tribes west of the Mississiooi 

River, with their consent, and wit~~ut 

any charge upon the government. 9 Stat. 

264 {1848). 

For the reappropriation for expenses 

of the removal of the Catawba Indians 

to west of the Mississippi River, and 

of settling and subsisting them one year in their new homes, provided that a home shall first be obtained for them, 

and that they shall be removed only 

with their own consent, five thousand 

dollars. 10 Stat. 316 {1854). 

No removal program was ever carried out. 
847 

-13-

The c~estion is hether these two s:a:~tes constitute Co~g;essional ra ification of the Treaty of 1840. ~e 

con:lude not. F rst, neither the language of the acts nor the meager legislative history refer to the 1840 

Treaty of Nation Ford. Secondly, an 1854 report 

written by the South Carolina Indian Agent shows that 

by this time the C~tawba were homeless and nomadic ana suggests that the removal of the Catawba might serve to reunite and rehabilitate them. (Vol. II, 

Attach. Z) 

In U.S. ex re~ ~claoai Tribe v. Santa Fe ?acific R. Co., 

314 u.s. 339--TI94lf,-£E~ su;:ireme-couTt-coilsicereowhether 

Congress hac intended to extinguish the aboriginal title 

of the ~alapai Tribe to certain lands when it set up a new reservation for them elsewhere: 

That Congress could have effected 

such an extinguishment is not ,doubted. 

But an extinguishment cannot be 

lightly implied in view of the avowed 

solicitude of the Federal Government 

for the welfare of its Indian wards. 

As stated in Choate v. Trapo, 224 U.S. 

665, 675, the rule of construction 

recognized without exception for over a century has been that "doubtful 

expressions, instead of being resolved 

in favor of the United States, are to 

be resolved in favor of a weak and defenseless people, who are wards of the nation, 

and dependent wholly upon its protection 

and good faith • • 314 u.s. 339, 

354. 

One of the statutes examined by the Suoreme Court in that case was an 1865 statute creating a new reservation further 

west for the Indians, including the Walapai. Legislative 

history indicates that Congress had been informed that 

this new reservation was being proposed as a substitute 

for other lands being claimed by the Indians. Still the 
848 

-14-

s~~:eme Co~rt ref~sed to rec5 i~tc this removal statute 

:c~ :es ional inte~tion to abolish Indian title to these 

oth r c aimed lands withoJt ~o:e S?ecific evidence of 

ext n9u shment: 

"Ke search the cublic records in vain 

for any cleac a;d plain indication that 

Congress in creating the Colorado River 

reservation was doin= more tha~ makina 

ar. offer to t!"Je Inci~ns, including th~ 

~alapais, ~~ich it ho=ej would be acceoted 

as a com~ro~ise of a irou~:esome o~estlon. 

We find ~a indication that Concreis 

creating that reservation inte~ded to 

extins~is!-1 all of the rights which the 

Kalapais had in their ancestral home." 

314 u.s. 339, 353. 

T!"le Catawba removal statutes certainly offer less evidence 

of a Congressional intent to extinguish title than was 

a~=arent in "ala=ai Tribe. There is no evidence in Catawba t~J~t re;noval-w-as-o-?tered as part of aland exchange. ~~ithout more specific reference to the prior 1763 Treaty reser- vation or to the 1840 Treatv with the State, it would be a flaarant violation of settl~d case law to infer that 

Congress intended the removal stat~:es as ratification of 

the 1840 Treaty and extinguishment of Catawba title to the 

1763 reservation. 

A minor question is whether the 1943 Agreement signed by 

the Department, the State and the Tribe, providing for 

creation of a new federal reservation constituted u.s. consent to the 1840 Treaty. But, case law establishes 

that executive action alone, such as this 1943 agreement, 

is insufficient to extinguish Indian title. Walaoai 

Tribe, supra. Moreover as discussed at page 8-rnfra, the 

Solicitor advised the Department to exclude from the 1943 

Agreement a provision which was requested by the State to 

extinguish any of the Tribe's treaty claims against the 

State. 
849 

-15-

A s cond b~t relate~ q~~stion is ~hether ~he failure of 

Con ress to tak~ anv 0t~er action o~tside of th~ :~rnoval 

sta utes concer~ing·t~€ Catawba an·o~nted to federal 

acq~iescence suffici~nt to extinguish title. ~e think the 

strong position taken by the Supreme Court in U.S. v. Santa 

Fe Pacific R. Co., as discussed above, is sufficient Indlcat1on~ha~ertainly federal silence or failure to 

act cannot be equated ~i~h consent to the extinguishment 

of Indian title. See also Turtle Mountain Band of Chi=~ewa 

v. u~ite: states, 490 F.2d 935 (1974)-.--Nor-does congreSSional fa~l:Jre-t.O-~ctlndicate that Con~:es; believed the 

Cate~ba lands ~ere no~ ever within the ~ederal NonIntercourse Act protections: 

Similarly, Co~gress' unw1llingness to 

furnish aid when recruested did not, 

without more, show a congressional 

intention that the Non-Intercourse Act 

should not apply. Passamacruoddv v. 

Mort~~· ~· 528 F.2d at 378. 

Finally, the voluntary and sporadic assumption of responsibility for the Catawba by the State of South Carolina and 

any constructive knowledge of that fact on the part of the 

federal government has no bearing on whether Congress 

ratified the 1840 Treaty. A similar proposition was treated 

in the Passamaouoddv decision: 

But as the district court recognized, 

Maine's assumotion of duties to the Tribe 

did not cut off whatever federal duties 

existed. Voluntary assistance rendered 

by a state to a tribe is not necessarily 

inconsistent with federal protection •• 528 F.2d at 378. 

Thus, there is no Congressional action which can be equated 

with the federal co~sent necessary to validate the 1840 

Treaty. 
~50 

-15-

The critical issue wit~ re=?~2t to th~ Cc:c~ba claim is 

~nether Congress terminated the Ko~-I~tercourse Act 

protection of the 1763 treaty reservation and thereby 

abrogated the 1840 treaty claim when it enacted the Act 

of Septem:,er 21, 1959 (25 U.S.C. §§ 92l-938). l.. variation 

of this issue is whether Congress p~eserved the 1240 clai~ 

but terminated the fed~ral obligation to assist the Ca~awb2 

i~ the pr~secution c~ t~eir clai~s. The act authorized 

t~e =:e~a:ation of a final roll o~ t~e ~e~bers of the 

trib~ (Section I; 25 U.S.C. § 931), a division of tribal 

assets aT:long its me>r.bers (Section 3; 25 U.S.C. § 933), anc the execution of the co~veyancing instruments necessary 

to convey rrarketa~le, recorda~le, and unrestricted titles 

to tribal property disposed of pursuant to the act 

(Section 4; 25 U.S.C. § 934). It is commonly referred 

to in this Department as the Catawba Termination Act, t~ough Congress did not give the legislation that name; 

nor is there any reference to "termination" in the 

co~~ittee reports or in statements in the Congressional 

Record crecared or made in connection with the consideration 

and ena~tm~nt of the lecislation. Kevertheless, there are 

ffiarked similarities be:~een this act and other enactffients 

of Con9ress during the 1950's which explicitly terminated 

federal supervision over certain Indian tribes. 

The orovision of the act which concerns us is section 5 

(25 U.S.C. S 935) which states: 

"The constitution of the tribe adopted 

pursuant to the Act of June 18, 1934 

(48 Stat. 984), as amended, 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 Gnited 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 
851 

-17-

ir.applicable to the~, cnj the la~s of 

the several States s~all apply to them 

in the sc~e manner they apply to other 

persons or citizens within their 

jurisdiction. Nothing in sections 

931-938 of this title, however, shall 

affect the status of such persons as citizens of the United States." 

This language, especially the second sentence, is boilerplate 

in the terrr.ination acts of that era. T~e clause "all 

statutes of the United States that a:fect Indians because 

of their status as Indians shall be inapplicable to them," 

raises the question whether Congress terminated coverage 

of the Non-Intercourse Act, leaving the Catawba without 

federal protection of their 1763 reservation and essentially 

therefore abrogating the 1763 treaty reservation. An 

alternative question is whether the prospective language 

of that clause left the 1840 Non-Intercourse Act claim 

unaffected but terminated the concomitant, unfulfilled 

federal obligation to assist the Catawba in the prosecution 

of that claim. · 

~e conclude that S 935 did not alter in any way NonIntercourse Act protections of the 1763 treaty reservation, 

including the federal responsibility to assist the Catawba 

in quieting title to the reservation. We rely strongly on the Supreme Court's interpretation of the Menominee 

Termination Act in the case of Menominee Tribe v. United 

States, 391 u.s, 404 (1968). That act (25 U.S.C. S 899 

(1970), repealed by§ 3(b) of the act of December 22, 1973, 

25 U.S.C. S 930 a(b)) contains language virtually identical 

to that in S 935 of the Catawba legislation. The issue was whether that provision abrogated hunting and fishing rights 

under an 1854 treaty. The Supreme Court ruled that those 

treaty rights remained intact, stating: 

"While the power to abrogate those rights 

exists (see Lone Wolf v. Hitchcock, 187 

U.S. 553, 564-5~:--.-)--'the-rntention to 

abrogate or modify a treaty is not to be 

lightly imputed to the Congress." Pigeon 

River Co. v. Cox Co., 291 u.s. 138 •••• " 

391 u.s. at 412-413. 
852 

-18-

~~ ~ all derr~ns~:at~ that t~e ~a~t c~ Co~~:essicn2l 1ntent 

t~ a :ogate tr~aty rights, th~ practical ~!~ect of infe:~~~g 

t~r~ na:io~ of t~e Ncn-IntercoGrse Act co~e:a~e, is mo:e 

clear in t~e case of the Catawba than it ~as ~ith re~a:d 

to the ~enominees. 

~~e r~le is: "A conaressional determination to ter~inate 

[c.:-1 I~d1ar. reser,·cti;n] m~st t:e '=xpr-?3sed 0!'"} the face of 

t~e he: or be clear fro~ t~e surrou~~ing circu~stances a~~ 

l~~isla:ive history." Mattz v. hr~e:t, 412 U.S. 431, 505 

(2.9/~). A:-1,;::, "I:-: c;ll c2S'E~, 't~.Ef"~Ce c: t:-:~ h::t,, 't.~e 

s~~!o~~ding circ~7stances,, and the 'le~is:atlve ~istory,, 

are to be examined witt a~ eye towards deter~ining what 

congressio~al intent ~as." ;os~bud Sioux T~ibe v. Kneic, 

u.s. s~::::reme Ct., Docket No.7:-s62~3€-CTQej-AOtii_4.;l977, 

sli? o?l~io~ at p. 3. M~r~over, ''a~:· ~ithdra~;l of trust 

o~ligations by Cong~ess woJld have to have bee~ 'plai~ an~ 

u::=.~t:iguo:Js' to be effec:ive." Joi~~-~~.~bal Co.:;nc~l_of t~e 

F=ss=~=~uoddy Tribe v. M~rton, 528 F.2d j70, 380 (lst Cir. 197~-'I?:e--f2-ceof u:ec-;;;ta .... -ba act does not state terr;-.ination as its purpose. By contrast, Section 1 of the 

Menor;-inee act states: "The purpose of [this act] is to 

provide for orderly ter~ination of Fede:al supervision over 

ttE property and ~e~~ers of the Meno~inee India~ Tribe o~ 

~isconsin." 25 U.S.C. S 891 (1970). Thus, only five years 

earlier Congress had used express language terrrinating all 

federal su8ervision, but did not do so ~ith resoect to the 

Cata~ba. See also Klamath Termination Act, 25 U.S.C. § 564, 

et seq. Another anomaly raised by the language of the act 

is ~hether the sentence in S 935 where Congress declared 

Indian statutes inapplicable to the Catawba should be read 

as including the Ken-Intercourse Act since the preceding 

section, S 934, had already removed the effects of that 

act, namely restrictions on marketability of property to be 

distributed under the Act. In light of these ambiguities 

in the act itself, we must go beyond the language of the 

Cata~ba legislation and examine its legislative history. 3/ 

3/ Apart from the rather clear Indian law precedent, common 

~rinciples of statutory construction permit us to look behind 

the ~ording of the statute. ~e observe that there is another 
853 

-19-

The legislative history of the Ca~a~~a Act ~ ~onstrates that 

Congress did not regard rights under the 176 treaty, as well as any protective relationship relating to t e 1763 treaty 

land, as affected by the enactment of ~he 19 9 act. Rather, 

the focus of the ~ct was distribution of the 3,400 acre reservation purchased and taken in trust by the United States 

pursuant to the 1943 agreement. Interior Department records 

reveal a copy of a January 3, 1959, resolution of the Catawba 

General Council (_at_tached as .Z;ppendix A) which states in 

pertinent part: 

"~hereas, Ca~~w~a tribal ~e~bers have sought 

aid on co~plaint that under Federal trusteeship, 

members held no title to the property upon which 

they could obtain credit to build homes, or could claim ownership of the property, 

if they did build them ..• , and 

·~hereas the Catawba tribal members desire 

the division of the 3388.88 acre reserva- tion in York County, South Carolina and 

its property and assets among the individual 

members of the tribe on an equitable basis and, 

(Footnote 3 cont'd.) 

latent ambiguity in the subject provision in its application 

to the Catawba claim. A view of the entire 1959 act indicates 

that the purpose was to promote Catawba welfare by dividing 

up tribal assets among the members of the tribe and then 

subjecting the members to state law. Nothing in the act 

suggests an intention to abrogate vested Indian rights toward 

the ultimate benefit of non-Indians, and indeed, that would 

be contrary to the evident purpose of the legislation. Courts 

have felt free to examine legislative history in such 

circumstances, even in the presence of what might be regarded 

as an otherwise unambiguous statute. ~~~· United_~tate~~ 

Schultheis, 486 F.2d 1331, 1333 (4th Cir. 1973); Rosebud Sioux 

v:-i<!1erp;-s u~. 
854 

-20-

''so~ therefore, BE IT R~S: L~ED that . 

its Ge~e:al Council asse~~led in reaular 

meeting hereb~· for~ally request theiiono~a~le !iooert 1-i. Hemphill . . to 

introa~ce and sec~:e passage of aF?ropriate 

le~islation to accomplish the removal of 

Federal restrictions acainst the alienation 

of Cata~~a land in York County, South 

Carolina, so that it can be patented . 

and do all thi~~s necessary to accomplish 

t~e pwrposes o£ this legislation ~-!_fi_?_s=ost 

to the Cata~ba India~s or clairr acai~s: ~heir 

assets~-anetSat notnlna-rntr:.ls reGTSr2tron 

Sh2fi affect t~e StatUS~f-any-CI~I~-aG2Inst 

theState of-Sou:h Caror:::at;v the ca t~~ba -Tr i Se-:"--[ bphaSTs- added .J 

Thus, the Tri~e requested the le~islation so that they could 

finance home construction on the existing federal reservation. 

See also 105 Cong. Rec. 5462 (April 7, 1959), 105 Cong. Rec. 

15583 (.Z..ugust 11, 1959). In accordance with the Tribe's 

request, the Interior Department drafted legislation (Vol. 

II, Attach. VV, ~~) which was later introduced by Congressman 

Hemphill and enacted in substantially the same form. 

Other Deoartment materials make it clear that the Interior Departme~t interpreted the purpose and effect of the 1959 

Act as terminating the federal reservation and services 

provided to the Catawba pursuant to the 1943 memorandum. 

"The legislative history of the Act of 

September 21, 1959, 73 Stat. 592 clearly 

shows that the existence of such agreement was known to the Congress and that 

the Bureau services to be discontinued 

_1:1nder the act were tho!O;~_cove!:~l?.L the ~ubjec~~morandum of Understanding. 

Memorandum from Solicitor to 

Commissioner, July 22, 1960. 

[emphasis ours] 
855 

-21-

In the June, 1962 letter i~~orrrin; the Ca~awba Tribe that 

their co~stitution and gc~er~~.e~t ~ere revoked, effective 

July 1, 1962, the Secre~ary incorpo:ated a ~otice that was 

suggested by the Solicitor and w~ich reflected the foregoing legislative. interpretation: 

N 0 T I C E 

"~hereas, the Bureau of Indian Affairs has performed services 

to the Cataw~a Indians pursJar.t to a Me~orandurr of understanding 

entered into with the Tribe and the State of South Carolina or. December 14, 1943; and 

~hereas such Memorandu~ of Understanding is to be rendered 

ineffectual by the Act of September 21, 1959, su~, and 

since no term was agreed upon in the Memorandum of Understanding, 

Now therefore, the Secretary of the United States Department 

of the Interior hereby gives notice of intention to withdraw 

from and conclude the Department's responsibilities under the 

agreement approved December 14, 1943. 

The effective date of withdrawal shall be July 1, 1962." 

There are no references to the Non-Intercourse Act in the 

legislative history. And while there are references to the 

1763 Treaty, they are inaccurate. Both the House and Senate 

reports refer to the 15 mile square reservation as "set 

aside for them by treaty with South Carolina in 1763." 

H. Rep. 910 at p. 2, S. Rep. 863 at p. 1 (86th Cong., 1st 

Sess). 

This inaccuracy was apparently precipitated by the Interior 

Department letter to the Committee on Interior and Insular 

Affairs, reprinted in the committee reports, which contain 

the same mistake, namely that the treaty was with South 

Carolina, rather than with the Crown. This error may have 

led the legislators, as well as the Department of the 

Interior employees drafting the bill, !/ to regard any 

!f See 1909 Department of Interior letter, Vol. I, F 101 as discussed infra at page 7. 
856 

-22-

C2ta~ba cl21~s u~der that treatv as 2risina under So~th 

Carolina la~. for Section 6 of ~he act Fro~ides: Nothing 

ir. sections 931-938 of this title s~all affect the richts, 

o:ivile~es, or ob}iaations o~ the tribes and its memb~rs 

~nder t;e laws of S;uth Carolina." 25 U.S.C. § 936. This 

provision would also apply to Cata~ba rights arising under 

the 1840 treaty with the State, and it ~as no doubt regarded as protection in general of the Tribe's claim against the 

State as req~ested in the General Council resolution. ~/ 

If i~ is concluded that S 935 dij not terrri~ate the Ca~a~ba's 

184C clai~ under the ~c~-In~erco~rse Act, we furt~er believe 

that § 935 s~ould not be read as terminating federal 

responsibility arising from the Non-Intercourse Act to 

prosecute the treaty claim on the Catawba's behalf. First, 

the legislative history contains no reference to terminating 

federal responsibility pertaining to the 1763 treaty reservation. 

In fact, t~e House and Senate reports once again contain 

inacc~rate information, based on Deoartment letters to the 

Committee, stating that no federal irust relationship existed 

between the federal government and the Catawba. S. Rep. 

863, 86th Cong., lst Sess. This inaccuracy, which is consistent wit~ the Department's views up through 1972, was rejected 

by ~ssa~aquod~ where the court held that the Non-Intercourse 

Act itself gave rise to a limited fiduciary duty concerning 

the tribe's lands. 

Secondly, to infer preservation of the Non-Intercourse Act 

claim but termination of the federal obligation pertaining 

to the claim one must dissect the Non-Intercourse Act to 

se7arate one legal effect of the Act, land protection, from 

another, the duty of protection. 

~n fact, the Department of Interior Program Officer, 

responsible for implementing the Distribution of Assets 

Act, wrote a memo to the Commissioner of Indian Affairs 

in which he described § 936 as preserving the Tribe's 

treaty claims against the State. (Vol. I, Attach. I-13). 
857 

-23-

"The purpos of the Act has been held 

to acknc~le ge end 9~arar.tee the InCian 

tribes' rig t of occupancy .•.. and 

clearly there car. be no meaningful 

guarantee without a corresponding federal 

duty to investigate and take such action 

as may be warranted in the circumstances •.•• the trust relationship 

[we affirm] pertains to land transactions 

which are or may be covered by the Act, 

and is rooted in rights a~d duties 

encom?assed or created by the Act." 

Fassa:ra~u~<l~· 528 F.2d 370 at 379. 

We do not question the ability of Congress to so alter the 

imoact of the Non-Intercourse Act. But, such alteration of a ~rior statute, analogous to a repeal by implication, 

cannot be inferred. Rather, it must be clear. Morton v. Mancari, 417 U.S. 535 (1974). There is no language-indicating 

such a~teration of Non-Intercourse Act coverage. And, since 

Congress did not know (indeed, no one understood before 

the Passamaquoddy opinion), that the Non-Intercourse Act 

enta1led a specific fiduciary duty, it would be unreasonable 

to conclude that Congress intended to single out that duty 

from the other legal effects of the Non-Intercourse Act 

and terminate it while leaving the statute's coverage otherwise 

intact. Even if Congress knew in 1959 the Non-Intercourse 

Act entailed a duty with respect to the protected lands, 

it is still so unusual for Congress to preserve a federal 

right while terminating the corresponding federal duty, that 

there should be clear and substantial indication of such 

intention. Eere both the 1959 Act on its face and the 

legislative history are utterly devoid of any such suggestion. 

Reading this legislative history, it is fair to say that 

Congress had no idea that the Catawba had any claim under 

the 1763 treaty by virtue of the Non-Intercourse Act. Nor 

did Congress realize that any fiduciary relationship existed 

between the federal government and the Catawba. It must 

therefore be concluded that Congress did not intend to 

abrogate any Catawba treaty rights protected by the NonIntercourse Act or any federal relationship mandating 

federal protection of these treaty lands. As stated by 
858 

-24-

the D.C. Circuit in a case ex~~ining ~hether ~ne 1956 

Lu~~ee Act, a statute near!y ide~tical in its l~ngDage to 

§ 935, implicitly terroinated rights previously certified 

by the Department_of the Interior, 

. Congress, being oblivious of 

these people and their rights, certainly 

cannot be supoosed to have intended to 

deorive them ~f those richts without me~tion of the subject.•" ~avnor v. Morton, 

510 F.2d 1254 (C . .l\.D.C. 19-g-)~-------

Indeed, all available evidence indicates that Con~ress intended 

to leave tribal claims against South Carolina unt~uched, 

as the Tribe had reauested. The committee reoorts refer 

to the Tribe's January 3 resolution and to th~ fact that 

the legislation was requested by the Tribe. In circumstances 

where leoislation has been enacted at the recuest of an 

Indian t~ibe, the Supreme Court has placed c~nsiderable 

reliance on the terms of the Tribe's reauest as indicative 

of Congressional intent. ~or!b~~_Cheyenne Tri~~ 

Hollowbreast, 425 U.S. 649, 656-58 (1976}. Moreover, statutes 

reflecting agreerrents with Indians should be construed in 

a non-technical sense and never to the Indian's prejudice. 

J,ntoine v. Viashinaton, 420 U.S. 194, 199-200 (1975}. To conclude~hat-t~9 act abrocated Cata~ba richts under 

the 1763 treaty and federal protection thereof ~auld be 

inconsistent with the legislative history, violate settled 

rules of construction and would effect the same backhanded 

diminishment of Indian rights disapproved of in Menominee 

Tribe v. United States, suora. See also Kimball-v~-Callahan, 

49TF:"2d-ffi{9th Cir. 197~ Therefore,1t1sour ____ _ 

conclusion that the 1959 J,ct was not intended to have any 

effect on the Non-Intercourse Act claims to the 1763 lands. 

It is worth noting that in contrast to the foregoing 

legislative history of the Catawba Act, the history of the 

~enominee Termination Act is much more indicative of a Congressional intent to abrogate treaty rights. There, 

Congress had a choice of several bills, including one which 
859 

-25-

expressly preserved t~e Tribe's hunting and fishing rights. 

Congress chose i~stead to pass a bill -hie~ made no mention 

of such rights. Cou~sel for the Tribe testified against 

enactment of the ~hosen bill, arguing that its silence would 

abrogate those rig~ts by implication. 391 u.s. at 408. The 

Supreme Court noted Congress' failure to act upon this 

suggestion, but still de=lined to find clear evidence of 

Congressional intent to extinguish treaty rights. ~/ 

One possibly unfavorable distinction bet-een this case and ~~norr,in~~Tribe is the S,.Jpre:ne Court's reliance on the 

language of the termination provision that "all statutes" 

relating to Indians are no longer applicable to th~ 

Menominees. This -as vie~ed as evidence that Congress did 

not have treaties in mind. 391 u.s. at 412. In this case, 

the continuing applicability of a statute, the NonIntercourse Act, is critical. But, the effect would be 

the same as the effect rejected by the Menominee Court: 

the abrogation of treaty rights. Mor•over, the Menominee 

Court indicated that it was not inclined to infer-aFifth 

Amendment taking: 

We find it difficult to believe that 

Congress, without explicit statement, 

would subject the United States to a claim for compensation by destroying 

property rights conferred by treaty, 

particularly when Congress was purporting 

by the Termination Act to settle the 

Government's financial obligations towards 

the Indians. 

Extinguishment of the Catawba's 1763 Treaty claims which are based on their vested property right, would constitute a Fifth &~endment taking and thus, one the Court would not be 

willing to imply easily. Tee-Hit-Ton v. United States, 

348 u.s. 272 (1955).· If the 1959 Act did extingu1sh the 

6/ See d1scussion of U.S. v. Santa Fe Pacific R. Co., 

supra at page 13. 
860 

-26-

C2~2~ba's c~ne s~i? rig~ts n the l763 res rv2tio~, the 

t~i:e ~~:l rrig ~ ha~e a cla ,, if nc: ba:r~ _, an ap?licajle 

statute c~ li~ tations, aga nst the ~ede:a 

t~e fair ffiarket v~lue of their 140,000 acre 

so ... :er:~rrlent for 

:-eservation. 

~~~~~e~~ c~~ be ~ede t~at the !9~9 A:t i~se!f is a so~rce 

c~ t~e C~i:ed States' contin~i~~ ~~ty tc restore t~e 1763 

reservation to India~ o~nership. 

Sectio~ 2 of the 1959 hct provides t~at each rneffiber o~ the 

Tri~e is entitled to share in "t~e tri2e's assets t~a: 

are held i~ trust by the United States. 25 O.S.C. 

§ 932. Se2tion 3 t~e~ stat~s t~e rr,~~~er i~ w~ich this 

distribution of assets shall be irr~lemented. Paragraph 

(d) provides in pertinent part: 

(d) Subject to t~e provisions of this 

subsection, each ~e~ber who is an 

adult under the laws of the State 

anj who has an as~ign~ent shall be 

given the option of selecting and 

receiving title to any part of his 

assignment that has an appraised 

value not in excess of his share of 

the tribe's assets. 

And paragraph (f) further provides: 

"All assets of the tribe that are not 

selected and conveyed to me~bers pursuant to subsections (d) and (e) of 

this section shall be sold and the 

proceeds distributed to the 

members . Any tribal assets 

that are not sold by the Secretary 
861 

-27-

within two years from the da~e of the 

netic~ provided fo: i~ section 931 

of this title shall be con~eyed to a trustee selected by the Secretary for 

disoosiLion in accordance with this 

subsection, and the fees and exoenses of such trustee shall be paid o~t of 

funds appropriated for the purposes 

of [t!'lis act.]" 

Section 4 also a~t~orizes the Secretary ''to execute such 

co~veyancing instru~ents as he dee~s nec~ssary to convey 

marketable and recordable titles to the tribal assets . 

Assuming that the 1840 Treaty of NaL.>n Ford did not validly 

extinguish Catawba rights to the 1763 treaty reservation, the 

Tribe retained Indian title to those lands in 1959. If the 

reservation lands were assets held in trust within the meaning 

of section 2 of the 1959 Act, then the Secretary is authorized 

to distribute them among tribal members or to convey them to a trustee who would in turn be charged with selling them and 

distributing the proceeds to tribal members pursuant to 

section 3(f). To do this however, the Secretary would first 

need to quiet the Tribe's title to those lands since they are hardly in salable form, and the statute requires that the 

highest price be obtained at the distribution sale. It would 

certainly be incumbent on the Secretary to recommend to the 

Justice Department that the Tribe's title to its assets be 

auieted so that the distribution could be completed. Thus, 

the distribution scheme of the 1959 Act can be argued as 

providing adequate authority for the bringing of a suit on behalf of the Catawba to quiet title to the 1763 

treaty lands. 

There are difficulties with this reasoning, however, stemming 

from the legislative history of the 1959 Act itself. Because 

of these difficulties, it is our legal opinion that this trust 

assets theory is a weaker argument. Moreover, it is clearly 

alternative rather than additional to the Non-Intercourse 

argument because it is based on an opposite interpretation 

of the 1959 Act and its legislative history. 
862 

-28-

The trust assets theory holds up only if the 1763 reservation 

is considered an asset held in trust by the United States 

within the meaning of Section 2. But the 1763 reservation was probably not owned in fee by the United States in trust 

for the Catawba, as are most reservations established by 

direct treaty with the United States. Furthermore, the 

legislative history offers little evidence that Congress 

considered the 1763 reservation, or the claim pertaining 

to it, to be a tribal asset that should be appraised and 

distributed. As already pointed out, the legislative history 

of the 1959 Act indicates Congress was only concerned with 

the 1943 a;:eement and the reservation created pursuant to it 

and that Congress was in fact unaware of the 1763 treaty clai~s. Senate Report No. 863 (86th Cong. 1st Sess.) 

states (at page 2): "The tribal assets are valued at about 

S254,000 or about $1,500 per family. The assets consist 

principally of the tribal land which comprises nearly 

4,000 acres, including 630 held in trust by the State of 

South Carolina." Thus, a persuasive argument can be made 

that the 1763 treaty lands were not regarded by Congress as an asset designated for per capita distribution. 

Moreover, basing the U.S.' duty to bring suit on the 1959 Act 

itself also involves an opposite reading of that part of 

the legislative history concerning the government's 

obligations toward the tribe. As mentioned, Congress was wholly unaware of any federal obligations to the Catawba 

existing prior to or outside of the 1943 Memorandum of 

Understanding: 

"The Catawba Indians' relations with 

the Federal Government date back only 

to the 1940's. Their original reser- vation was set aside for them by treaty 

with South Carolina in 1763. In 1840 

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 essential 

services to them. 
863 

-29-

"Sine~ 1943 t~e Stste, t~e Berea~ of 

Indian hffairs, and the tribe have been 

working together to improve the economic 

conditions of the members. " Id. 

at pp. l-2. 

An August 27, 1959, letter from the Interior Department to 

the Senate Interior Committee states: "The [1943] ag:eement 

did not specify that the Federal Government was assuming 

guardianship of these Indians, and neither the Indians nor the State ever claimed that the Cata~bas were wards of the 

Federal Govern~ent." Id. at p. 2. The letter also lists 

the lirrited types of costs which had been inc~rred by the 

Bureau of Indian Affairs on behalf of the Catawbas. Id. 

at p. 3. 

In short, it appears that Congress had no knowledge of any 

1763 treaty claim, no understanding of the applicability of 

the Non-Intercourse Act, and no perception of any federal 

duty to sue on behalf of the Tribe to secure its land claims. 

These apparent facts of the legislative history clearly 

militate in favor of the argument that the 1959 Act was not 

intended to affect the 1763 reservation in any way. And, 

they render difficult the alternative argument that the 1959 

Act was intended to affect a distribution of the 1763 

reservation. 

But, either the 1959 Act was passed for a limited purpose 

(as we have argued), or it was intended to dispose finally 

of all the Tribe's assets. A reading of section 2 which 

would exclude the 1763 lands from the reference to "trust 

assets,• along with a reading of section 5 which would 

prevent the United States from asserting the Tribe's claim 

to those lands, would allow this valuable claim to drop 

between the cracks of the legislation. Such statutory 

construction is unfair by any standard, and certainly falls 

far short of the type of construction demanded for 

legislation enacted at the reque~t of an Indian tribe. 

Thus, if a court finds that the 1959 Act cut off the federal 

government's interest and duty to bring action on the NonIntercourse Act claim, strong argument can and should be 
864 

-30-

made that such an interpretation of the 1959 Act necessitates 

the further finding that the Act ~as intended to o1spose 

of all remaining assets including the 1763 reservation. 

The fact that Congress ~as u~a~are of all of the assets to 

be distributed does not diminish the force of the legislation or the Secretary's duty thereunder to seek out, appraise 

and distribute all the tribe's assets. Nor, under such a legislative interpretation, has the Secretary's failure to 

recognize and distribute the 1763 reservation lessened his 

legislative obligation to appraise and distribute ~hat was clearly the tribe's most val~able asset. 

Recommendation 

In summary, we feel that the Cata~ba's claim to their 15 

mile square reservation is a valid one under the NonIntercourse Act and they can readily establish a prima 

facie case. The claim is based on recognized title and 

therefore does not present certain problems of aboriginal 

title, e.g., establishing continued occupancy of the entire 

tract up until 1840 when the Treaty with South Carolina was concluded. Thus, their dwindling numbers and precise 

location at the time of the 1840 Treaty is not a legally 

significant problem. Furthermore, the Catawba have 

protested continually that this is their land and that they are entitled not to be molested in their possession of it. 

With the single exception of the 1840 Treaty itself, they 

have shown amazing tenacity and resourcefulness in 

attempting to maintain title to their 15 mile square reservation. 

We conclude that the United States· has had a duty under 

the Non-Intercourse Act, since the treaty claim accrued 

in 1840, to take action to protect the Catawba's rightful 

ownership of the 1763 reservation. This duty, along with 

the actual claim itself, was not affected by the 1959 

Distribution of Assets Act. However, were a court to find 

that the 1959 Act terminated the u.s.' interest in pursuing 

the claim on behalf of the Cata~ba, we feel it can then be 

argued that the 1763 reservation should be treated as a trust asset to be distributed under the 1959 Act, in which case the Secretary would be first obligated to quiet title 

to the reservation. 
865 

-31-

The claim calls for vioorous advocacv because this 

Department has been requested by the-Tribe's attorneys 

two times in the past to initiate legal action, has been 

carefully briefed on the applicability of the NonIntercourse Act by the Tribes' attorney, and yet has twice 

ref~sed to take action for reasons that have been shown 

in Oneida and Fass~maouoddv to be lecallv incorrect. 

Thus, ~he case~-a-pa~larly inviting one for a negligence claim against the United States should this De?art~ent fail tc advocate relief for the Catawba. 
CATAWBA TRIBE 

APPROVES 

SElTLEMENT WITH 

SOUTH CAROLINA 

I feel like we "re on I he edce 

of a new day lor the Catawba 

people. NOihinq will replace 

the loss of our lands bul this 

settlemenl is a tool !hat will 

allow us /o c.rea!e a betler way 

of life for our children 

Chief Gilbert Blue. 

Catawba Tribe 

On February 20. 1993, the 

Catawba Indian Tribe of Soulh Carolina mel and approved. b£ a vole of 

289 to 42. an A~eemenl in Principle 

to sellle the Tribe's I so-year o ld land 

claim. If the proposed selllemenl is 

enacted into law. the Tribe will be restored as a federa lly-recOQni:zed India n 

tribe. the exlsl\nq stale reserva tion 

may be expanded to a 4.200-ocre 

federal ~a lon. economic devel· 

o pment and other !rust funds will be 

created. and per ca pila pa'iJTlenls 

totallinq S7.S million will be made. 

The Tribe and ils members will 

become eliQible for federal Indian services. indudin~ e ducalio n. health 

social services and housinq. The seltlemenl ts modeled <:~flcr the Maine 

Indian Land Claims Setllemenl Act 

that sellled the land claims of the Passamaquoddy and Penobscot Tribes 

in 1980. 

The IOta! value of the proposed selllemenl is estimated to be 

between S80 and S90 millio n dollars. 

$50 million of which will be paid over 

a perKx:l of 5 years by the federal 

Governme nt ~2 million) a nd slale. 

local. and private sources (S 18 million). The remainder of the SSO to S90 

million lies In the eslimaled value of 

services and in-bind contributions 

from federal aqencies and stale and 

local ~ments over a lonq period 

of years. In exchanqe. the Tribe aqrees 

thai ils land claim arisin~ o ul of !he 

866 

LEGAL 

REVIEW Volume 18, No. I 

Contents: 

Catawba Tri be 

Approves 

Senleme nt With 

Wini...-/Sprl nv 

... , 

South Carolina ...... I 

Case Updates ... ... ... . •...... . 13 

NAI<F Receives 

Human RiQhts 

Award . . t3 

Available from NILL . . . . .. 14 

Available f ro m The 

Indian Law Sup!X-Jrl 

Center. 

NARF Resources and 

. .. 14-15 

Publica tions . . . . . . . . . . .. I 5 

NARF A11omey Resume .. ....... t5 

Native American Ri'\!hts 

Fund . . .... .... 16 

TRIBAL SOVEREIGNTY 

"I believe that the ri~ts of 

tribes . . . are inherent. and 

thai when we tall! about our 

ri~hts as tribal people. we 

should be tall!in~ about the 

rillhts we have had since lime 

immemorial ... " 

Wilma Manb:iller, Principle Chief, 

Cheroll:ee Nation. 1991 

NARF LEGAL 

REVIEW 

1840 TreatY of Natio n ford will he 

forever ex!lnqui::ihed. ~t cr with 

any other riqhls <nisin\;! oul of the 

1760 and 1 763 Trcalics or aboris;!i· 

naltitle. 

While the propost.'"(l sellle -

mcnl h(I.S the support of the South 

Carolina ConQresslonal dele\;!alion. 

!he Governor and k><;o)] Q<>Vemments. 

if must still be enocted into law by 

Conqress and the Stale of South 

Carolina. If !he sellleme nt is no t 

approved by Co l'SS. the Tribe will 

be forced to sue 6 1. 767 persc>ns individually who presently da im ownership of the Tribe·s 144.000-ocre 

Treaty Reservation. 

SUMMARY Of THE 

AGREEMENT IN 

PRINCIPLE TO 

SETTLE THE LAND 

CLAIM Of THE 

CATAWBA TRIBE Of 

SOUTH CAROLINA 

RestomHon. The !rust 

relalionship belwee n the Tribe and 

lhe United Slales will be restored. !he 

Tribe will become a fcdera lfy -recOQnized Indian Tribe and il and ils 

membefs will be eli~lble for Feder.:~ ! 

Indian services. includin'\! education. 

health. social services. a nd hou in~ 

The 1959lerrnination Act will 

be repealed. 

Tribal lnoof l'unda. 

Over a live-year periOO. the Federal 

Government and Slate of Soulh 

Carolina will contribute S.SO million 

to be placed inlo five trust funds: a 

land Acquisition Trust an Economic 

Development Trusl. a Social Services 

and Elderly Assistance Trust. an Edu· 

calion Trust and a Per Capita Pay· 

menl Trusl. The Secretary of lhe lnle· 

rior will manaqe and inresllhe trust 

funds unless the Tribe chooses to use 

private seclor inveslme nl mana~ 

with proven competence and expe-
rience. Generally. the Tribe will defermine how much mo ney will be 

placed in eoch trust fu nd. except that 

the Aweemenl requires $ 7.5 millio n 

to '\10 to the per capita paymen t fund 

and $6 million to ~ to the Educalion 

Trust. Except for !he per capita payment fund. the trust funds are set up 

10 be permanent funds. With some 

lim ita/io ns. the Tribe may transfer 

money amOn\! trust funds and the 

Secretary o r private investment manager is required to provide the Tribe 

a n accounliml! at least annually. 

Expand~d Re:set"VaHon. The erislinQ reservalion mav: be 

t:xpanded to 3.000 acres. plus an 

addiliomJI 600 acres o f undevelopable la nd Wood pkains or wcllands. for 

example). /\no ther 600 acres co uld 

be added lo the rescrvalion with the 

a pproval of the Secretory o l the Inte -

rior. county councils and the State 

tur . brin !jl in>;~ lhe maximum 

reserva tio n size lo 4. 200 ocres 

The addi!ionalland must be 

purchased from willin\1 sellers wilhi n 

two defi ned areas dose to the xi ~ 

reserva!io n. and will be bou h! by the 

Tribe from mo ney in rhc La nd Acquisilio n Trust. The Secretary of the Inte -

rior and a professio na l la nd p!anninc 

firm will Clssisl !he Tribe in det'elopinQ 

a reservulion devclo pmenl <md land 

acquisilion plan. The Tribe is required 

to ma ke Ct'cry d forl lo buy land !hal 

borders !he e xislin'\! resenmlion. bul if 

!hat is nul possible . !he Tribe may buy 

la nds in up to lhrt'f' non-conliQuo us 

lta<..: ls if !hey are reasonably close lo 

the cxislinq reservulio n. wilhin the lwo 

defined zont-s. and lhl' counly councils and the Governor approve the 

Tribe·s plan for such u confiQuratio n. If 

land canne l be purchased wilhin !he 

two defined zones. the Tribe may buy 

reservalion land in an unde fined third 

zo ne to be prorx.JSed by the Tribe if 

the Secretary and the Stale and kx:al 

QOVemments approve 

The Tribe will coorclinule ils 

planninSJ oclivilies with the City of 

Rod<! Hill. Yorfl and Luncaster Counties. and !he State of South Cam linr1 

lo e nsure !hal the e xpanded reservalio n has access lo roads a nd sewaQt· 

lrcalmenl. M .. 1jor land purchases for 

the reservc:llion must be co mpleted 

within 10 year.. of lh£> final sclllemenl 

payme nl: some minor purcha~ lo 

ro und o ut or connec l no n-conliQuo us 

reservation tracts may be mudc for 20 

867 

years afler the final selllemen t poymcnt. The Tribe may buy a nd sell 

non-reservation land without restricllo n. Such I<J nd would have !he same 

lax a nd leQ<JI sta lus as a ny o lher land 

in the Sta te . bur would be li e for 

fedeml s and o lher India n servi 

ces and benefi ls. 

Tribal Go.-emment, Jurisdiction and Govemanec. 

The Tribe may Or\Janize its o;,XJvemmt.'.nt und~r the India n ReorQanization 

Act If it chooses and the Indian Civil 

Ri hl s Act will apply. The o;,XJVemmentul powers of the Tri be will be 

those tha t are expressly set oul in !he 

cc nt in Principle . and powers 

no t set out for the Tribe will reside in 

the State. The Tribe will have iurisdic· 

lio n over internal tribal mailers. 

includinQ the powers: I) to zone and 

ul e th e use and disposition of trihul pro perly: 2) lo define laws. pelly 

crimes olnd rules of conduc l applicable to members of !he Tribe while on 

!he rcs....""'fvalion. suppleme nt in<;! bur 

no t pl in~ c,.iminalla\IJS of the 

Sl<:lle of South C(:lro lina: 3) lo r£l!ula le 

!he conducl of ..>~>s loca d o n 

~ reservation: 4) lo levy !axes: 5) lo 

qrant exemptions or waivers from any 

triba l lows. trilxll reQulations. or lribal 

taxes. except the Tribal Soles and Use 

Taxes. o therwise flpplicablc o n the 

rcSt:rv.:-t tio n. im:ludinij! waivers of the 

jurisdictio n of an-z tribal court: 6) to 

ad0pt il.:; own form of Qovemmcnt: 7) 

to determine its own membership: 8) 

to charter tribally-owned economic 

dcvclnrmcnl CofTX)ra tiom. and enterprises: ;;md 9) lo exclude no n 

member.:. from its membership rolls 

a nd from the reservatio n. except o n 

public roads. !he Catawb<a River. a nd 

public o r private eascmen!s.The Tribe 

wil l s~ lht.' Silmc immunily from 

sui! u.s d lies a nd counlies pos.<;ess in 

So uth Carolina nmi will be required 

to carry the same leve l of liability 

insurdncc as cilies and counlit."S are 

required 10 camz 

NARF LEGAL REVIEW 

The Slate will continue 10 

exercise crimina l jurisd iclio n over 

India ns and no n-Ind ians on the 

Tri bt.'·s reservation. If the Tribe desires. 

it may provide In its Constitutio n for a 

lribal courl with concurrent criminal 

jurisdictio n over triba l members o nly 

tha t is im il d to the same jurisdiction 

exercised b'f a sta te maQislra te"s courl 

over miS<kmeanors and pclly o ffenses 

that would be specifi ed in ordinances 

adopled b'f !he Tribe. The Tribe has 

the option o! employinQ tribal JX>Iice 

o ffi cers if tht.1: receive the sume trainin<;! as Sheriffs depulies a nd are crossdepulized by the Yor ~ dnd Lancasler 

County Sh(>riffs Deparrments. 

The Tribe mi.ly also e lecl 10 

cslablish i.l l court. The lriba l 

col!rfs. dvil jurisdk:lio n would be 

limited to malleTS arisin\) on the Tl"'St.'T 

valion and would be com.:urrent with 

!he civil jurisdic tion of the Stale in 

mt,sl circ umstdnct>s With some lim 

italio ns. 1he tr ibal court would have 

jurisdiction over cases vin~ the 

Tribe or it ~ members in the ll owi ~ 

areas: 1) ':nnlructs mflde or lo be performed on the reserv1.1tio n: 2) cases 

invo lvinl;! in jury caused by nel(!!iQence 

(non-lndiuns could h.wl! !heir cases 

removed Jo Stalt' court): 3) inlemal 

mailers of the Tribe: 4) domestic re iation~ where boih spous('S to the marria'l!c <lrl~ !ri hul members: 5) enforcement ol lriba\ laws e'll li n~ conducl 

<'n rhe rescrvalio n: amJ 6) cases arisinq under !he Indian Child Welf<.~re 

Acl t.~S< ibil l wurl ca~ would be 

pp al<.~ hie 10 stale Ct)url and !he 

Tribe would have 1hc ability In waive 

the uulho rity of !he triba l courl. 

Th e Sla te will have environmental lo cJry jurisdictio n and 

state heulth codes will apply o n the 

new reservation. The Tribe aqrees to 

adopt loca l buildln'\j codes and hunlin~ . iishin\l. und water rili!hts will be 

su bject lo stale e~u ti n 

Taxation. The Tribe . !he 

trihill trusl funds. unci triba lly owned 

e nterprises will be no n-taxa ble for 

fcdcriJ! inconw tax purposes liRe other 

fed erul tri bes. and its income will be 

n<m- 1axable by ~ S1a1e lo r 99 yea rs 

federal trusl land5 will be exempt 

from real pro perl'i !axes. and 

improvemc nls o n !he land wil l be 

exempl from 1eal property taxes IOJ 

99 year.-. The Tribe will ma ll€" su bslilulc paymenls to 5upport ils children 

in the public Khools. The Sla le will 
not tax any sales oc urrin~ on the 

reservation. bulthe Tribe aqrees to 

im{X)se and collect a sales tax equal 

to the State's sales tax. Purchases by 

the Tribe in its ~vemmental capacily 

wil! be exempt from State sales and 

use taxes for 99 years. The Tribe will 

have the same Federal tax treatment 

as other Federal tribes under the 

Indian Tribal Government Tax Sta tus 

Act and w;ll be able to issue bonds lo 

finance certain protects. 

Members of the Tribe. liRe 

members of other Fedemltribes. will 

pay Federal tax on income earned on 

the reservation. Unlib:e members of 

other federal tribes. they will also pay 

state income taxes on income earned 

on the reservation. unless they wori< 

for the Tribe perlormin~ ~ovemmcnlal fu nclions. in which case lht..-y will 

nol pay slate income !axes for 99 

years. Per capita payments will be 

exempt from stale and federal income 

taxes. Income from the sale of (X)IIery 

and artifacts made by merribcrs of the 

Tribe on or off the reservatio n wil! be 

exempt from Federal. store and local 

income taxes. and the sale itself will 

he exempt from sales and use taxes 

Member:s' homes will be exempt from 

property taxes fo r 99 years. MembL"T5. 

personal property. suc h as car:s and 

boats. will be subject lo sta te lax 

Games of Chance. 

The AQreemen! in Principle ~;tives 

the Tribe the option of havin~;t binQo 

and video mdchines. GeneraiJ-y. slate 

law would QOvem any ~aminrJ on the 

reservation and only those IJaminQ 

aclivitb that are permitted by State 

law would be permined on the Reser· 

vat ion_ However. the Tribe would be 

permith..x:l to sponsor much hi~her 

stahes bin~ ~mes ($ I 00.000) more 

frequen!ly (unlimited number of 

Qames. six days a weeb) than is per· 

milled other binqo opera!Of3 in the 

State The Stah; would tax tri bal bin~o 

proceeds at a rate of 1 O% of Qross -

a tax rate sliQhtly l~ r than that paid 

by other bin~ operators in the 

Stale. The Indian Gamin~ Re~ula· 

tory Act would not apply on the 

Catawba Reservalion. 

Tribal Memberahlp. 

The Tribe's membership will be determin&t by the Tribe. and the settle· 

men! le~islalion will incorporate the 

Tribe's own membership require· 

ments. that is. descendency from 

someone listed on the I 96 1 Federal 

868 

rol l. The minimal sidle services and 

tax exemptions for indiviQua ls and the 

Tribe that will cease after 99 years will 

have no effect on the Trihe·s member· 

ship, its federal relationship. or i!S t:li!J· 

ibilily for federal services 

CATAWBA TRIBE V. 

SOUTH CAROUNA 

A History of Pers~~ranc~ 

bt Don B. Miller 

Too ofiE:!n we ncl;!lectthc pa:;t 

Even more !han olhn do· 

mai ns uf bw. 'the intricacies 

and peculiarilieo;, of Indian Jaw 

demand a n ilppredalion of 

histo r y.· juslicc Harr y A 

BI Dc ~mun. dissenlin<i! fro m 

the Supreme Court majority·s 

opinion in South Cam/ina v 

Catawba Indian Tribe. June 2. 

1986: uulin~ Justice Fe lix 

FranbfuriE..>r 

On November 10. 1763. 

in a Trccsly al Au\!usta. GE'!:JI'\!ia. !he 

Catawha Tribe souqhl and was qua · 

rante(.•d proteclion from the onslaurJhl 

of while selllement_ In return for i'l 

solemn a~reeme nt by the KinrJ of 

EnQland and !he Governors of th e 

Southern Colonies that the Tribe 

would be fo rever protecled in posses· 

sion uf ils lands. the Tribe reserved a 

144.000·acre tract und ceded its abo· 

riQina! terrilory (comprisinrJ much u f 

lhe present slate of North a nd South 

Carolina) to the KinQ. But in 1840. the 

Slate of South Carolina toob the 

Tribe's lands. allemptinrJ to exlinQuish 

forever the Ca tawba Tribe's title to the 

144.000-acre Reservation lhrou~h a 

"treaty" in which the United Stales did 

not parlicipale. The Stale did not 

NARF lEGAl REVIEW 

honor the terms of the "treaty:· And 

because federal law has. since 1 790. 

plainly stated that only Con~n~ss may 

extin!i!uish Indian tille to land. the 

Tribe's dispossession by !he Sta te of 

South Carolina has predpilated a pol· 

ilical and le~al struQIJle !hat has 

spanned a century and a half. 

Lately. that s! ru!,_~le has 

bt.--cn wa0?d in the federal courts. in 

!he halls of Con~rt..'SS and the South 

Carolina Lcqislature and in several 

federal aQencies. Over the lost 

decade. it has escalated into un 

expensive hiqh·stabcs stru!JQic for a ll 

concerned_ In 1980. followin~ the fail· 

ure of a four·year effort to sctllc the 

claim without resortinli! to lili~alion 

the Catawbil Tribe SUL'<l 76 individuals 

and corpomlions Sl.>t~ltin\l a rctum of 

the lfcaty Rest·rv<Jiio n and cs ~ 

dama\,lt.'S_ The ddendanls wt."TC sued 

as representatives of the te ns (If thou -

Sil nds of non-Indians who curr(:ntly 

(xcupied the Tri be's Trca l'l ReS<'rVa· 

lion. At the lime of this wrilin~. the 

e<.Jse hds been hcurd once by the Uni 

ted Stales Supreme Court nnd five 

limes by the Unitt·d States CmHt of 

Appeals for the fourth Circuit. On 

two other OCGlsions. the Supreme 

Courl has been <JslK:d to hec1r <m 

appeal in the wsc and has declined . 

Later this mo nlh_ the Supreme Courl 

will be asbed to hcur a rcf;lh:.'tl claim 

by the Tribe a12ainst the !Jnited States 

which wus dismissed by the ((JUri of 

Appeals for the Fedl?ral Circuit (m til 

lute of limitations !f!rouncb 

The recent prO\)ress toward 

settlement was ~ncruted by the thrcut 

of a dramatil escalation in the scope 

and impacl o f lhc lil i~<ll i<.> n While 

resumed 5elllcmenl ta lks had hc(.'n 

onQoinq since early 1990, pr(x,:ress 

had been slow and the e xtent of stale 

and local suprx)rt for~ c~ lativ<.' 

(political) resolution was unclear. But 

in 1992. the federal courls refused to 

a llow the case to pmceed as a class 

action. This refusal slartetithe runnin ~ 

of a statute of limitalions and le ft the 

Tribe no choice but to sue each occu· 

pant of the Treaty Rescro;oafion individ 

ually. In the Sprin\! and Summer o f 

t992. as the Tribe fina lized its prepa· 

rations to sue 6 t. 767 individuals lor 

rx>ssession of the land they occupied 

before the October 18. 1992 dead· 

line. the need for a leQislative solution 

became more apparent to both the 

Indian and non·lndian communities 
in And around Roell Hill. The filin!>J ol 

such a massive lawsuil woulll huve 

ploced a cloud o n virtually all land 

lilies in the area and would have dcvaslclled the refi:ional eco no my. II 

wo uld have <.~ <. 1l yzed the fedcml 

courts and woukl likely have crc<JICd 

subsl<..m tial sociul unrcsl. To Qivc the 

seut ement process more time . Con-

~ress . in July. 1992. extended tht' statute of Jimitalions until Oclohcr 1 

1993. ln AuQusl. 1992. !he Tribe. 

ConQressman Sprall and sidle llC\!t )· 

liators made substanlial pn)\!res.' 

Joward an aqrccm enl 10 sclllc the 

dair:1 . Based on I he hope !hat .1 ju:-1 

~e ul mcnl miqht al lust be possibk·. 

the Tribe vole<! unaniln•lusly to rely 

un the rcssio l sla!utc o( !imil<l 

lio ns extensio n and postpone filin\! 

<.~Q<:Iin e 6 1,767 occupants. Scttlcmcnl li.lll>S aimed nl finalizinQ the 

aQrccmenl conlinw .. "<i. and in 1hc 

eurly momin~ hours of Jam wry t2. 

th e neQC~ iolors finalized un A~rccmenl in Principle. On february 20. 

1993. !he Calawba Trihc met in 

General Council and overwhdmincty 

ilpprovcd the- proJXJSCd aqreemenl. 

This prolraci<."'< l und expcnSi\7C ~a l war is !he m(xfem p~a y of 

ofhr.ia! refusa l. 0\7Cr the course of 

mure !han two centuries. lo heed 

CCJtawba complainls and lo en[on.:e 

<lpplicablc laws proteclin~ Indian 

lands - laws !hat predate even lhis 

Nation's exislence. At leasl nine \,'CO('f -

dlions of lribal JeadCTS havt.· souqh1 lo 

oblain d sclllemenl of !he Tribe's 

claim 1ha1 would r€'$IOTe at leas! 50mc 

mmsurc of !he promise of se!f-suffi -

ciem "Y .. held out by the l 763 Trealy. 

nu:ir ilppcals ha\7e. until recenlly. met 

with lillie success. This article is a history of the Tribe's ccnlurics-fon\! batik 

It) n..•o;,.'<:'l in possession of ils lands 

The Colonial Period: The Reservation Established 

The Catawbas · slru~\'Jle to protect !heir lands from white setUcr.; 

bcqan well before the Treaty between the Kin!.! ilnd !he Tribe ill AU\!USia in 

! 763. Prnmph: .. >d la ly by Calawbi:l 

~.:ornp ain s of invadin~ \Whiles. the 

Pr ~in ial Council of the Royal Col 

ony of South Carolina in 1739 pi:!SSCd 

"An Act to Restrain thP. Purchasin!J of 

Lands from lnd rans ... &:cause of tht: 

Calawbas' importance lo the Colony 

of Soulh Camlini::l as a buffer from 

hostile lribes lo !he West. Soulh Cam! 

ina actively souQht lo prolecl !he 

869 

Tribe·s lands lhroulj!hour most of the 

ei:,2 h1eenth century. North Can>lina. 

h()I.VeV€1'. repeatedly iQnored South 

CaroUna·s w<tmino;,.'S and protests and 

refused to restrain its ur~rs and 

M;! lli r.~ from enter inC Ca <.~wbet lands. 

lc<idfni,J So uth Carolinu in 1754 It> 

eco~,J ni c al l lands wi thin u 3Q-mile 

rurJius c)f Jh c Ca tawbil towns as 

Cut<Jwba lands. North Curolina and 

~;: r stnkrs persisted. however. und 

the ('Sul tin~ d ispute between N0 r1h 

.:md South Curolina. <.:ouplt:d with a 

SC\7ere <~ ox epidemic in 1759 

lhi.:tl .._,.edtft wcailcned the Tribe. 1..:-d to 

,J moJJ0r \T:;sio n f\f trih.ll J .. md in 1760. 

Wc1..· un . .Jcr.;tand thai ye lnditlllS have made Compluinls 

t!wt s•)mc ol or Peop le 

.._ h upon them. wee 

hopl.' yu Adjusted thai Bussiness ~) there SoJiisfoclion 

11 t1 bcr- m•t .lllreadydonc pray 

\('ffi\' lo ,m a~ cc rnc l wth yc 

lm.!til ns t~ there Sa tisfaction 

.Jbf.•u t 1h..:-rc bo unds and Leu 

m.me ol or People lncroach 

uro n you for 'iC futur . 

P,rilish Ltm l Proprielors In the 

(it•wrnor and Council at AshIcy Riv;;r. Arri l 10. 1677. 

In !hat year the KinQ·s 

nd io.~n A.\:cnt met with !he Ctliiwba~ 

and nc~li aterl!hc Treaty of Pine Tr('l:' 

Hill. in which !he Calawba Nali0n 

ClQrCl-"ttlo ced e It> the Kin~ il$. 60-milc 

iamc ~:.· r lr<tcl (2.826 square miles) in 

rclum for bcinQ pt--rmancnUy St:ttlcd 

on a twct l 5 miles square (225 squure 

milt..-s). Al!ho u\)h rhe Treaty promised 

that thl.' tracl would be surveyed. a fort wo uld be buill for 1h ~ lndi<:ms· 

protectio n. and while incur.;ion would 

no! be permilled. North Carolinu pn.:-

diclably reiu:;cd lo abide by the Tn::aly 

.1nd the Crown did iil!!e to fulfil! 

its o bliiJclllons 

'oll 't- i" ~ lh(' l.'nt.J (.,f th(: 

t=rench and lndion War in 1763. !he 

Crown sc.>u\!hl lo en:ourt· !hill peac-e 

would . in f<1d . come to the sour hem 

frontier. To lhb end it an~ed <1 

trl.!aly wi th the fi"c major southeastern 

tribt...-s. all of which. exccp! the 

Ca t<.~wba . had been allied wilh the 

French The qovemors of !he southern 

coloniel were direcK-d 10 invile the 

chiefs of the Creeb-s. Chcx:laws. Cherollt.·cs. Chici?<JS..1.WS. and Calawbas to 

Au lu . and .. ,o usc every Means to 

quiet !heir ppr ::.io s and !\!<lin 

!heir ~ O pinion " li:> furlher as.c;urc 

th e Indians of the Cm\\."Tl·s \;'00<-i inlenlions. n~ Gro <;~ e Ill Issued the Proclamalio n of I 763. forbiddin'.! any purchase of lm..li<:tn hmds without !he 

Crown's 0)0 5-COI. This predeces.c;or of 

the fedewl India n Noninlercoursc Act 

formed the bm:Rdrop lor !he nc ~oli

lions in Au~u a later that yo:ar 

He informed !he G09ernors 

his Umd w<ls SJX'ilcd. he had 

los! <:t Qr(;'at dea l holh by 

Scarclly of Buffalos and Deer5. 

!hey have sp oiled him 100 

Miles t.'VE.'r'l Wdy • • .md cr 

paid him . His Hunl n~ Lilnds 

fo rmerly cxlended tc,l Pedec. 

Broad Rrver e1c . but now is 

driven qurlc to the Ca!awba 

Nalion. If he m u!d kill any 

deer- he would carry the ml?'al 

lo hi:- f amtly and th1..· Sbins 

lo !he White People bu1 no 

Deer ilre now ro be had. he 

wants 15. ~ on each si ~: 

his To wn ~t: from i.l nv 

en ~.: ua mC"n s of the Whi!C 

Pt'Ople who will nul suffer hirn 

tn cui Tr("e ~ to build withal but 

bt. t. p alI ro thcm..;clvcs. 

Col. :~. Catawba Chid at 

Au sla. Nov. 9. 1 763 

At u~ . the Calawbil5 

r.:-newcd their d<:~im to !he larwr 60-

milc diamell..-r tr<lcl. but were told h: !he QOVcmory. 

If you stand by your former 

Ao;;rccmt> nl your la nds shal! 

bE: immediatt::+y !>Urveyed and 

murt>e<t out for your u<;t' but 

if you do nnl Yf'Ur d <.t im musl 

he undecided liil our Gre;_ll 

KinQ·s Pl i.l re is Ll;wwp Pn 

the :r :-.ide l) f the Waler.;.. 

The nexl d d'{ the C<.tlawba:; 

and !hi.' KinQ lormally rem."'W\;"d the 

a!Jreement reached al Pine Tree Hill 

!hree 'iCMs i' ctr . 

Despi1e the 1763 Treaty of 

AuQusla. while o<l~..: hm nt con · 

tinued OurinQ I he yeu~ thai followed . 

Soulh Carolin<J became less .·proit..-ctivc of !he Tribe's lands and ler!' 

n abin~ lonQ-Icrm leases from 

the Indians in vio lation of !he Trealy 

and the Proclamation of 1763. Re-
newed Catawba complaints resuhed 

in official proclamattons. but no action 

was laRen to rem09e the intruders 

The Treaty of Nation Ford: 

Possession Lost 

followinQ the Revolutionary 

War. in which the Tribe fouQhl on the 

side of the Colonies. the Catawbas 

appealed to the Continental ConQreSS 

and. on at least two occasions. directly 

lo Presidenl Washln~lon 1o asl! lhal 

the l 76.3 Treaty be eni'orced and their 

lands protected. In 1790. the first 

Con0'ess enacted the Indian Nonin· 

tercourse Acl. conlinuin~ the policy of 

lhe En~l~h Crown by s~iclly prohibil- inQ purchases or leases of Indian 

lands without the consent-and parlk:ipation of the qovemment. Nonetheless. neilher Con~ nor the President rcx=m any steps to protect the 

Tribe's lands. 

A1 Majr. Crawford's I was met 

by some of lhe Chiefs of lhe 

Catawba nation wlx> seemed 

lobe under apprehension that 

some allempls were mallin~. 

or would be made to deprive 

them of part or the 40.000 

Acres welt. was secured them 

by Trealy and wch. ~bounded 

by lh~ Road. 

Washln~lon diary. Feb. 27. 

1791. 

~innlnQ In the early nineteenth century. South Carolina 

enacted a series of law5 purporllnq to 

leqalize and reQulale the leasinq of 

Catawba lands lo non-Indians. By the 

1830's. Virtually the entire Reservation 

had been leased to non-Indians 

under the Slate system and several 

Slate commissions were appointed to 

~iate a cession of the Reservation. 

These early commissions were unsuccessful due to tribal opposition. but at 

lhe Trealy of Nallon Foro in 1840. lhe Tribe aQreed to cede its lands in 

relum lor prom~ by lhe Stale lo 

purchase a new reservaUon for the 

Tribe ellher close lo lhe Cherol!ees in 

North Carolina or In an unpopulated 

area of South Carolina. 

The Slale. -... failed 1o 

abide by lhe '&ealy of Nallon Foro and dkl nol purchase a new reservallon lor lhe Tribe. Instead. in 1843. U 

purchased a one-square-mile lrad of 

870 

land located squarely in the middle of 

the I 763 Treaty Reservation that the 

Tribe had ceded almos! three years 

earlier. It was not until 1853-54 that 

one of the commissioners who had 

neQOiialed the 1840 Treaty convinced 

the majority of the Tribe to settle on 

the tract. 

In 1848 and aqain in 

1854. ConQress appropriated funds 

for the removal of the Catawba Tribe 

to the Indian territory west of the Mississippi. but the funds 'Rel'e not used 

due in part to Catawba opposition 

and in part to inability to find a 

host reservation. 

They were then stronq and felt 

themselves in their own Qreatness. fiZOVefTled by their own 

laws. worilin~ the besl spots 

of their lands and leasinq out 

the poorer portions to the 

white men. This slate of thinqs 

went on Iii the whites QOI 

Kinq·s Bollom. the last spot of 

the reservation. The poor 

Indians then felt their distress 

beqinninfi!. and run from 

house to house for the rents 

of their lands. which they 

had leased out to the white 

people. which was qenerally 

paid in old horses. old cows 

or bed quills and dolhes. 

at prices that the whites set 

on the articles laben. This 

brou~ht on a stale of starvation and dislress. 

Under this slate of thiOQS. 

they wandered from place to 

place. ~in~. II) 1839. when 

Iiley proposed a lrealy wtrh the Slale. and relinquished all 

their riQhls and interesl or this 

domain to the State of South 

Carolina. There 'IO'efe many 

efforts made previous to this. 

by former Go.enors. lo ellect a treaty with the Catawba 

Indians. but always failed. 

They were then driven to it 

by beln~ surrounded by ""'lie men. chealinQ them out or their riQhts. and parlallinQ or lhe Vices oflhe ""'lies and bul lew or their virtues. whk:h is 

a distress to me. 

Reporl lo lite Goo.mor of 5ouJh Carolina on lhe Catawba Indians by B. S. Mas- sey. Indian ~1. December 

12. 1553. 

Early Efforts to 

Rellaln the Land 

By the 18&J's the Tribe had 

retained lawyers to investtqate its 

claims and in 1905. represented by 

Washin~lon D.C. lawyer. Chesler 

Howe. it submilled a formal request 

for assiSiance to the Bureau of Indian 

Affairs (BIA). Basin~ its claim on the 

Indian Nonintercourse Act. the Tribe 

ar~ued that the 1840 Stale Treaty was 

void and that it was entitled to rentals 

from the 1763 Treaty Reservation or 

to a recovery of possession of the 

land. RefyinQ on the theory that the 

Catawbas were "Stale Indians" and 

thus not subject to the protection of 

federal law. the BIA rejected the 

Tribe's request and referred ilto 

the Stale. 

The Tribe then pelilioned 

the South Carolina ~islature. which 

referred the matter to the State Attorney General for invesliqaticn. In a 

1908 opinion. the AJtomey General 

concluded that the 1840 Treaty was 

valid and that its terms had been fulfilled. The Tribe then renewed its 

request to the Interior Department. 

which denied il aqain in t909 ror the 

same reason. 

Once aqain the Tribe petitioned the State and. in 1910. a State 

commission was formed &a investiqate 

the Catawbas and mail€ recommendatkxts to the leqislature reqardin~ 

what addiUonal lands were needed. 

The Commission submilted Us report 

to the Governor in January 1911. 

recommendin~. amonq other thinQS. 

the purchase of an additional 1800 

acres of land. The State t<X>il no action 

on this recommendation and newspaper accounts hom 1916 reveal that 

at that lime the Tribe was slill seebinq 

relief throuqh lawyers and the courts. 

This situation led to the 

eslabl~ment by lhe l.e<;jislalure of yet 

another commission. appoinled by 

the Governor. Ia -conrer with . the 

Tribe .. on terms or a full and final 

setdement or all their claims aqainsl 

lhe Slate.- On (anuary II. 1921. lhe 

Commission's report was submiHed Ia 

lhe Soolh Carolina House of Aepresenlallves by lhe Goo.mor. Lil!e lhe 

1910 Commission. U recommended 

lhe purchase of addUional lands lor 

lhe Tribe. 

The Leqislalure lool! no 

action on lite Commission's report. 

bullhe Business Men's EvanQelical 
Club of Rod;~ Hill!ooll over !he wo ~ 

of 1he Commission and developed a 

bill which would have. if enacled. 

provided for !he purchase of farmland 

a nd a house for each Catawba family 

plus small per capi la paymenls. On 

Februar y 19. 1924. Governor McLeod 

endorsed the proposal. lin~ that 

'"[a) proper and salisfaclory settlement 

of our relationship wilh the Catawba 

Indians has n~ been a problem in 

Sou!h Carolinu:· Once <JQain the 

islaturc biled to act 

1\vo Washin(Jton lawyers who 

werecondu lin~ the case died 

shorlly afler labinQ charQe of 

il. A lawyer in Hamiel mel lhe 

same fate while invcsliQa li n~ 

the possibilities o f the suil. A 

R. McPhaiL of Charlolle. succumbed six months afte r 

ta~in\! the case. Now comes 

Oscar M Abemelhy. a younQ 

lawyer with no supers! ilion in 

his hard-boiled malle -up. 

who declares he will push the 

malle r o n to the supreme 

court of the United States in 

an effort to secure justice for 

these ··vanishinQ Americans."" 

who have been the consiste nt 

fri end of the whiles and will 

have been mistreated by the 

people they befri ended. 

l11c Charla/fe Observer. ··Last 

Appea l for lust ice for Van ishin\! Catawba India ns: Char· 

lollc l<.1wycr to Tabe Case to 

Hi es t Court <md to Ha lls of 

Co ess:· Au ust 12. t928. 

The fo! lowin!it year. Cawwba 

Chief. David A. Harris. appeared 

before the South Carolina Leo;;islature. 

without counsel. and asbed that his 

people be \live n farms. ho mes. and 

c itizenship. The General Assembly 

took no aclion on the Chiefs a ppeal 

and by the late 1 920·s the Catawba 

Tri be was a~ai n lool!in<J to the courts 

and the United States for re lief. This 

effort. as well us IWo subseque nt 

nppeals in I 929. were unsuccessfu l 

The federal Period South Carolina·s persistent 

refusal to deal with the 1840 Treaty 

issue . t~)Ct r with the severe poverty 

o f the Tribe. led to increased efforts to 

secure federal assista nce. On Murch 

28. t930. a sutx:o mmillee of the 

Senate Committee on India n Affairs 

. . •1 _:'" 

871 

he ld hearinQs in Roell Hill Ia invesliQate the conditions cf the Catawba 

Indians. In its I 934 session. the So:.~th 

Carolina Assembly enacted a concurrent resolution which resolved tha t the 

Catawba Reservation a nd the care 

and maintenance of the Catawba 

Indians should be tra nsferred to the 

Federa l Government upon proper 

leQislarion be in ~ e nacted by Com.1ress. 

lnvesti~ation into the needs of the 

Catawba Indians was undertal?en by 

the BIA and o ther federal aQCncies in 

1935 in an a llempt to establish a 

rehabilitation pr~ram in cooperation 

with the Stale of South Carolina. 

These e fforts a t securin\1 

federa l assistance throuQh administra -

tive actio n were unsuccessful. Thus. in 

J937. 1eQislation was intrcx:luced tha t 

wou ld have provided authority for 

the Secretary of the Interior to e nter 

into contracts with the State for the 

welfare of the Catawba Tribe. provided that the State purchased la nds 

which would be conveyed to the 

Federal Governme nt in trust as an 

Indian Reservation 

Durin'\Jthis period. the 

Sta te was a llemplinQ to convince the 

TriOC to sellle ils reservation claim for 

$250.000. to be distributed amo nq the 

Tribe on a per ca pita basis. As the 

State had not informed the BIA that it 

desired a final selllemen t of the land 

claim as a condition to ils pa ti i~

lion in the rehabilitation proQram. the 

BIA acted quicbly to foresta ll further 

action on the State-s proposal until il 

could inves ~a e the maller. 

In February I 93 7. the BIA 

sent Administrative Assistant. D"Arcy 

McNicble. to South Carolina to invesliqate the ""final senleme nf" issue. He 

discovered tha t the amount the State 

was discus.sin~ was $ 100.000 rather 

than $250.000 and conducted a thorouQh inves i~ali n of the history of 

the Tribe's 1763 Treaty Reservation 

tin~ that "" the Sta te carried out the 

terms of the [ 1840] Treaty prelly much 

as it pleased."" McNicble made no 

recommendatio n reqardinq the ""final 

selllemenf" question 

The !9371eqislation was not 

reported out of Commillee because 

of disaqreeme nt in the Interior 

Department over whethef the 

Government should ··adopt any more 

Indians:· O n june 9. I 938. the Interior Department reported unfavorably 

on the bill. but noted that the ··stale 

did no l procure for the Tribe a reservation in . North Carolina but 

reserved 652 acres of the lands they 

had surre ndered by the treaty of 1840 .. 

In the next Conqress. similar 

l~ ti n was introduced a nd in 

1939 the South Carolina Leqislatl:re 

adopted a concurrent resolution 

aQain requeslinq the federal qovernment to provide aid for the Catawba 

Indians. The Sta te"s 1939 General 

Appropria tions Bill reauthorized the 

Sta te Budqet Commission to tiate 

and e nter into an aqreement ··havinq 

as its objective the re habilita tion of 

the CataWba Indians and a fina l selllement with them so that the Stale may 

be re lieved of their support."· 

On April 29. 1940. the Interior Department aqa in submitted an 

unfavorable report on the Catawba 

leQislalion. With the failure of the 

e~ e approach. the Sta te and the 

BIA beQan a new to devise a relie f 

prOQTam which could be impleme nted wilhoutleqislation. This e ffort 

first centered around a pr()0"am 

throuqh the Farm Security Administration with the BIA rovid n~ limited 

technical assistance. The Slate of 

South Caro lina wou ld provide up to 

$75.000 for the purchase of lands. 

provided that the a~reeme nt between 

the federal aqencies and the State 

Conlinued nex! paqe 

rh,:ht·h<lndcolumn 
872 

'hoot occupy 65ll acres 1lllllcb..., allalled 1o lhem by lhe Slale or SoUih c.allna. 'lhele are 172 souls ~ an lhaJ reserva!lon. The cmdltlon 

· d. !heir houses Is such lhaJ I wculd say .• rr~. 0!"" lhree or loor orlhem allord even proper sheller. They are jusl l<lUQIIIy buill wUh no cellinQ 

lumber on lhe cedlnq or lhe !Ides Inside. and lhey ore moody I -room houses wUh ~ abooe lhem escep1 a ~ roo!. wUh holes In lhe roo!. sometimes ..uh a lamlly or s1x or eiQhJ llvlnq 1n !he one lillie 

room. They cooll on lhe ftreplace In lhaJ room and lhey all sleep 1n 

!hat one lltlle room. They depend almo!l enHrely on who! they ~ &om 

the Slate. The Slale has been opproprlal~ 59.000 lor their supper!. 

The Chairman. Annually? · ' 

Mr. l'lowet.. Yes. sir. Well. the opproprlallon is 59.450. The 5450 ~ 

lo !he~ and they~ 59.000. 01 this 59.000 there is 51.500 set a!kle 

to run the school. They set aside so much lor doctors lees. funeral expenses. 

and so on. because they haven"! any other way to pay a dodor or pay 

funeral expenses when one dies. Thai reduces !he amount of the 59.000 

appropriation considerably. Then whorls lefl or !hat Is apportioned pro 

rata am0011 the Indians ofrpe .lrlbe. This las! year they QOI 538.17. I 

believe. per capila. They have to depend on that almosl entirely. lor 

the reason that u Is ....-y hard lor !hem to ~ wort. &om rhe while people. Unlortunalely. while people can't control lhem jUst llile they would llile 

to control a laborer because the Indian considers himself !he equal of 

lhe white man and a white man Is lll!ely to ~ Into trouble ~ he curses 

an Indian. Therefore a while man. Rllher !han !aile that chance or i<Uinl! Into trouble. will seldom hire on Indian. Thai Is an unlortunaie condillon. 

or course. Then the only other thlnQ ._, to him is his farm 011 the 

652 acres. and K there Is any poorer land lefl In the coun1y I wouldnt 

fznow where to QO to Ond U. We are Q01nQ to leave that to iW Senators to determine when iW QO """" there to see b. Moo! or them are nol 

even able to have QO!dens. Now. iW miQhi say !hat they are Indolent and won"t wort.. bul the lact Is they haven"t anythinQ to wort. ..uh and no place to malle aljO!den:· · 

Statement of Mr. f'loolers. South Carolina Indian financial AQent. before 

• suixommlllee of the Senale Commlllee an Indian AfliiiB. March 28.19:10. 

would ''provide for the extinquish· 

ment of any exis!inq claims for sup· 

pori which the Indians may have 

aqainsJ the State of South Carolina ... 

In 1941. however. the lnle· 

rior Department formally refused to 

permillhe' rehabilitation prc>Qram to 

be used as a means for exlinquishinq the Reservation claim. The State 

aqreed and. in 1943. the Secretary of 

the Interior approved a Memorandum of Understandinq between the 

Tribe. the State. and the Department 

of the Interior. It contained nolanquaqe conceminq exlinquishment of 

the Tribe's claim. 

Pursuant to the Memorandum. the State of South Carolina 

acquired 3.434 acres of farmland 

close to the existinq 630-acre Stare 

Reservation at a cost of $70.000 and 

conveyed it in trust to the Secretary of 

the Interior. However. the 630-acre 

Reservation was not conveyed to the 

Secretary. The Tribe adopted a constitution under the Indian Reorqanization Act and the BIA administered 

Catawba affairs out of the Cherollee 

Aqency in North Carolina. 

The Termination Period The hope created by the 

purchase of the new lands and eliqibility for federal services soon turned 

to frustration as federal Indian policy 

tooll an abrupt about-face. In the 

early 1950s. Conqress directed that 

the trust relalionship between all 

Indian tribes and the United States 

should end as soon as possible. 

The Bureau of Indian Affairs 

was directed to identify tribes that 

could be "terminated."" and durinq the 

period from 1954 to 1962. Con~ 

passed into law 13 termination acts. 

Under these acts. federal restrictions 
on tribal lands were removed and the 

land was either distributed to individual members or sold with the proceeds beinQ distributed to tribal 

members. Federal services were cut 

off and the sta le law was declared to 

apply to tribal members as it did to · 

other citizens. 

For the Ca tawba Tribe. 

the termination era meant that their 

new reservation lands could not be 

used productively. Con~ ess made 

fewer funds available to tribes Qenerally and. in the mid-!950s. federal 

services for the enlire Catawba Tribe 

amou nted to only about $5.000 per 

year. Tribal members were poor and 

there was no federal assistance for 

either ho usinQ or farrninQ operations. 

And because of its federally restricted 

status. the Reservation lands could not 

be used for securily to borrow 

money. The Tribe complained to the 

Sta te and the Federal Government 

In response. the BIA and 

the State approached the Tribe in 

1958 with a proJX>Sil l for termination. 

Fed eral restrictions could be removed 

from the land by an act of.Conwess 

and the land acquired in 1943 could 

be distri buted to individual members 

or sold to provide a small cash payment to Triba l members. 

The Tri be. wh ich had no 

lawyer. resisted. tellinq the BIA a~n t 

that its claim aqainstthe State wou ld 

have to be resolved before it would 

aqree to a d istribution of the new fed -

eral Reservatio n. However. the BIA 

assured the Tribe that ifs lo nqstandinq claim would be unaffected 

by the d istribution. Relyinq on that 

assurance. the Tribe aweed to the distributio n. condilio ninq its consent on 

its understandinq that its land claim 

would be pro tected. The BJA drafted 

a resolution for the Tri be consentinq 

to division of the federal assets and. 

consistent with its assurances. in- cluded a provisio n condilion in ~ 

tribal consent on leavinq the treaty 

claim unaffected. 

After securinq the Tribe's 

resolutiori. the BIA and ConwessmanHemphill assumed the role of speabinq for the Tribe in the leqislative process arid throuqhout the entire leQislative process. there was not anol her 

mention of the land claim. While the 

Conqressmen and the BIA purported 

throuqhout the process to be aclinq 

only in accord with tribal wishes. the 

873 

~islation they drafted did not 

expressly preserve the claim. However. the BIA. which drafted the bilL 

repeatedly told the Tribe and emphasized to Conqress that it had been 

drafted to conform to tribal desires as 

eXpressed in the resolution. No tribal 

offi cials appeared at the hearinqs on 

the bill nor did the Tri be submit written teslimony. 

Based larQely on the BIAs 

and the sponsor's assurances of Tribal 

support. the bill breezed quid?ty 

throuqh both Houses of Conqress. On September 21 . 1959. the Catawba 

Dtvision of Assets Act became law. 

But apparently because the Tribe's 

initial approval of the termination/distribution had occurred at a hastily 

called and sparsely allended meetinq. 

Conqress had amended the Actio 

require a second Tribal vote o f ap· 

prova l before the 1959 Act would 

become effective. Once aqain !he 

BIA dispa tched aqen ts to the Res- ervation lo collect si~ tures of 

approval and those federa l aQents 

aqain assured tribal members that 

their land claim was protected. By 

June. 196l.lhe BIA had collected the 

siqnatures of over half the lribal 

members and. on July I. 1962. the 

Secretary o f the Interior proclaimed 

the termination of the federal trust 

responsibility. Pursuant to the 1959 

Act. the 3.434-acre federa l Reserva · 

lion acquired 1 B years earlier was 

distribuled amonq tribal members 

and all federa l Indian services ceased. 

The 640-acre Sta te Reserva tion 

acquired in 1842 had no! been 

included in the federal Reservatio n 

and. thus. was unaffected by the 1959 

Act TI1e Stale of South Carolina continues to hold thattracl in trusl for the 

Tribe to this day 

Selllemenl Efforts: 1975 - 1980 

In 1975. encoura\,>etl by 

1 victories of other Eastern Indian 

tribes. !he Catawba Tri be requested 

the Native American RiQhts Fund 

(NARF) to evaluale its claim. NARF 

allomeys conducted leqal and historica l research for more than a year 

and. in 1976. concluded that the Tribe 

possessed a tr n~ claim. Bul because 

of the potenrially disruptive effect of a 

lawsuit. as well as the belief !hat a 

claim of this maqnitude would ulti · 

mately be sellled by ConQress. the 

NARF lEGAl REVIEW 

Tribe determined 

that it would first 

explore whether a satisfactory selllement o f ils claim could be achieved. 

HopinQ to establish Jhe leqal 

validity of the claim. the Tribe submilled a litiqalion requesl to !he Deparl· 

men! of the Interior in 1976 asbinq 

!he United States to undertabe leqal 

aclion to recover the lands of !he 

1 763 Treaty Reservation. The Interior 

Department Solicilor reviewed !he 

request for more !han one year. and 

on AuQust 30. 1977. asbed !he Justice 

Department to institute liti lion on 

the Tribe's behalf. but not before settlement options had been exhausted. 

As a result. in 1977. a fed· 

eral tasb force was fanned comprised 

of the Assistant Allomey General for 

Lands and Natura l Resources. the 

Solicitor of the Department of the Interior. and an Associa le Direclor of 

the Office of Manaqemenl and 

BudQet. That same year South Carolina Governor James Edwards had 

directed the Stale·s Allomey General. 

Dan Mcleod. ro represenl the State in 

discussions wilh the Tribe. The South 

Carolina conqressional deleqalion 

determined that il would follow local 

Conqressman Ken Holland's lead. 

and the complex process of allempl· 

in~ to fashion a satisfactory selllement 

had be<lun. 
In lale 1977. !he Tribe and 

General McLeod a~eed in 

!hat !he Tribe would consent 

to a i extinQuishment of 

ils claim in relum for crealion o f a 

federal Indian reservalion. eligibility 

for federal Indian services. and a friba! developmenl fund . While !hey 

could not a~ on !he amount of 

land lo be included in !he proposed 

reservalion. the apparenl commitment of !he Stale and Federal parlies 

lo a neQOiiated se:lllement was encouraging lo !he Tribe. 

Any hope of a speedy reso· 

lulion was dashed. however. by two 

events in December t97 7._ firsl. !he local newspaper o btained a nd published lribal maps !hal idenllfied ihe 

specific parcels of la nd !he Tribe a nd 

the Stale had been considering. As a resull. lhrealened landowners OTQanized and formed the Tri-County Lan- downers' As.soctaUon. Second. the 

increased publicity led lo much wider 

participalion by tribal members. 

many of whom no lo nQer lived o n the 

Reservation. As a result if was neces- sary for the Tribe lo reconsider Us selllemenl posiUon in order to accommodale !hose members who wished 

lo parUcipale in a selllemenl on an 

individual. or per caplla. basts. 

In 1978. !he South Carolina 

General Assembly enacled leQlslalion 

.. ,j ... ~ 

874 

/ The Uniled Slates has never !allen any ac:Uon lo fulfill Us dUly to help 

!he Caiawba recover !he land. In lac!. !he Deparlmenl of !he Interior 

has lwice refused. In 1906 and 1908. 10 !abe action when !he '&ibe's 

la"R'(ers pointed out !he liibe's claims under the Non-lnlercourse Act 

BuJ mere lapse of lime and failure of 1he federal qovemment to act can· 

no1 eradicate eiJher the Catawba's riqhts to their land or the federal 

QOVemmenfs conlinuinQ duly IO help !hem Qel II bac:R. The Act of 

Seplember 21. t959. which lerminaled federal services 10 !he Calawba 

and lhe applicabilily of federal Indian statutes simUarfy did not extin-

~ish !he 1840 Treaty claim or !he QC>Vemmenfs duty of proleclion. The 

Jerminanon lanquaqe In that 1959 S!atule is prospective arid does not 

affect preexisHnQ leqal r~hls . Moreover. the Supreme Court in Menominee 

'&ibe v. U.S .. 391 U.S. 404 (i969). and in many olher Indian land cases. ,,.ro· ·~ required clear evidence of Conqressional lnlenl before flndinQ an 

abroQalion of Indian ri~hts. The leQisfalive hts!Ory of !he 1959 Act shows 

-!hal ConllfesS. as well as !he adminlsterinq aQ<nl believed !he Ad was 

passed for one reason - lO liquidate a 3400-~ reservaUon anp to 

lerminale limiled federal benellls bolh of which were crealed by a 1943 

aQreemenl be!ll>een !he '&ibe. !he Stale of Soulh Carolina. and !he 

DepartmenJ of !he Interior. In short. the 1959 Act was a means of dissolvinq !he leQOI relalionship sel up by !hal 1943 aQreemenl. In fact. 

ConQress was unaware of the slatus of !he 1 763 treaty reservaHon. of 

!he Non lnt~ claim perlainlnq 10 u. and finally of Us """' duty under !he Non-lnlercourse Ad to protect !he reservation. The Tribe ilself 

cerlainly did nO! conlempfale lite i959 Act as a means of cunlnq off 

!he~ leQOI claims 10 !he I 763 reservalion because !hey stipulaled In !he 

pe!Uion which qave rise lo lite 1959 leQislation. lhallhose claims should 

not be affecJed. 

The action we hereby recommend is !hal !he United States finally act 

upon Us lonq-lleQfecJed duty under !he Non-Intercourse Act 10 nufllfy 

!he 1840 Treaty wllh South Carolina and restore possession of lite I 763 

Treaty reservation 10 lite Catawba '&ibe. 

Leo Kru!Uz. Sollcllor. Unlled Stales Department of lhe Interior Jo Assistonl Attorney General Moorman. AUQUSI 30. 1977. 

creallnq a commission lo invesliQale 

the Catawba claim and rna~ recommendations to the ~lsla ure. The 

Commission. comp:>sed of four mem bers o r !he s1a1e LeQislalure 

whose districts include the claim area. two non-Indian landowners and the 

Presidenl of a local banb. all 

appointed by Governor Edwards. had no Indian members. 

In 1979, Conqressman Ken 

Holland. frustrated by !he parlies' lacll 

of proqress and his conslituents' lacb 

of concern over the threat of liliQalion. 

introduced "seulemenf' leQlslalion 

thai did nOf have !he support or the 

Tribe. lhe Stale. or the Adminlslralion. 

It was hoped that the bill would serve 

as a catalyst for inlensiOed selllemenl 

efforts. but inslead !he House lnlertor 

Commillee's hearinQS only revealed 

the seriousness of lhe obslacles to setllemenl. The Tri-County Landowners' 

Association and the State Commission uTQed Conqress IO simply exlin- QuiSh lhe Tribe·s claim 10 possession 

of ils Reservation and subslilule in ils 

place a claim a~insf the Unlled Slates 

fOI' money dama~ only - valued as 

of !he lime the Tribe lost JX>SSoeSSion in 1840. The Stale Commission. in arrlv· 

inQ al ils proposal. had simply 

adopted !he proposal of the TriCounty LandowrlefS' Association 

wilhoul consullinQ the Tribe and wilhoul holdinQ public hearinqs. 

Chesler County land. as pari 

of the claim ls deleled. QivinQ 

a suspicion thai !he ullimale 

aim (of the senlemenl bill] ls 

!he tabeover of !he Catawba 
10 

River Valley by the Interior 

Department. 

Testimony of Tri-County Landowner Association Member 

Robert Yoder before the 

House Interior Commillee. 

June 12. 1979. 

The South Carolina Anorney General conlinued to support the 

modest settleme nl pacllaQe he had 

endorsed earlier and believed the fed -

eral Qavemment should pay for il. The 

Administration favored selllem ent. but 

did not believe thatlhe federal 

~)()vem nt should bear the cos!. The 

Tribe proposed a new federal reserva -

tion of no less than I 0.000 acres. plus 

federa l services. a tribal development 

fund. and per capila payments. 

The impasse continued 

throuQh 1979. and in 1980, faced wilh 

dc<.:reasinq inlerest in sellleme nt and 

a n approachinq federal law deadline 

for filinq the trespass dama~ jX)Tiion 

of the claim . the Tribe notified the 

State and lhe Conqression<1l ~ation o f its intention to file suit Hopinq 

to avoid lit iqution. South Carolina 

Govcmor Richa rd Riley and Conqressman Holland asked the Tribe to 

participate in one last round o f 

ne~Xl iation . 

TI1e Tribe aQreed and Govemor Riley formed an informal worR 

qro up comprised of representatives 

from the offices of the Governor. the 

Auomey Ge neral. the Conqressman. 

various un its of local qovemme nl. 

and the Tri-Coun ty Landowners· Assoc iation. Lc nqthy nCQOiialions continued throu1,1h inuch of 1980. resultinq in a detailed draft of settlement 

leqislatio n. both State and Federal. 

The settlement o~l called for 

establishment of a federal reservation 

no t to e xceed 4.000 acres. with civil 

a nd crimina l iurisdiction remaininq in 

the Sta te. The land was to be acquired 

voluntarily from willinq sellers with 

numerous purchase a nd use restrictio ns lo prolccl non -sc llin~ la n -

downers in the area. The Tribe would 

become eli<;libte for federal India n services and the remainder of the selllc · 

me nt fund would be used for esrab· 

lishmenr of a tribal development fund 

and per capita payments to tribal 

members. An equally derailed prop· 

osal was developed sett inq forth a 

proposed Sta te contribution of a lmost 

te n million dollars. The Tri·County 

Landowners· Associa tion did not sup· 

875 

port the worR qroup·s proposa l and 

nled a minorlly report. 

However. before the worll 

fi!roup·s pro~l could be submitted 

to the State ~islatu e. it had to be 

approved by the Sta te Study Commission. After holdinq public hearinqs on 

the pro~l. the Commission refused 

to endorse the establishment of a fed· 

eral Indian reservation. no matter 

how smal l. and rejected the proposa l 

The Lifillafion Period: 1980 - 1992 

HavinQ thus exhausted set· 

tlement possibilities. the Tribe fil ed suit 

in f ederal District court seeRinQ to 

recover possession of its 1 763 lfeaty 

Reservation. as well as historic trespass damaQCS. The value of the Tribe·s 

claim was estimated at the lime of filinQ to be more tha n two billion dollars. The complaint named 76 

defendants. includin~ the State of 

South Carolina and a number of corpora te and larqe private landowners. 

a s representatives of a defendant 

di.ISS. the n estimated to number 

30.000 people who c laimed Iitle to 

the Reservation lands. 

Presumably because of 

connicts of interest. a ll of the Federal 

District Court judqes for the District of 

South Carolina disqualified them· 

selves. As a result. Senior d~~ 

Joseph P. Willson of the Western Dis· 

trict of Pennsylvania wus appoi nted to 

hear the case 

The State a nd landowners 

dec ided to de fend the suit initially on 

the qrounds !hat the 1959 Division of 

Assets Act made sta te law statutes o f 

limitations apply to the Tribc·s claim 

and. in addition. destroyed whatever 

standinQ the Tribe may have had to 

in~ the suit by extin ui hinq the 

Tribe·s existence a nd tcrminatinq federal protection for the la nds 

In June 1982. Jud ~ Willson 

ranled the State"s motion to d ismiss 

<J ll the Tribe":s ciHim:s by simply Si\,ln inQ 

an order pre pared by the defendants· 

lawyers. The Tribe appealed the deci· 

sion to the United States Court of 

Appeals for the four!h Circuit in 

Richmond. VirQinia. In October 1983. 

u three-judqe panel of that Court rev· 

ersed the lower court. The fu urth Cir· 

cuil ru led that the 1959 Act was 

inte nded only to permit dislribution of 

the 1943 federal reserva tion. thereby 

retuminQ the State and the Tri be to 

NARF LF.CAL REVIEW 

their pre- 1943 sta tus a nd allowinQ the 

Tribe to pursue its claim to possessio n 

of the lands of its I 763 Reserva tion. 

The case was re-a rQued. and in 1984. 

the Court of Appeals affirmed -its 

decision in !he Tribe·s favor. 

The defenda nls souQht and 

were Qranted review in the United 

Sta les Supreme Court. RejectinQ the 

earlier views expressed by the Interior 

Solicitor. the United States Depart· 

ment of Justice reversed the Govem· 

menfs position on the Catawba 

claim. It filed a friend of the court 

brief on behalf of the United States 

urqinq the Supreme Court to rule 

aQainstthe Tribe and hold that the 

Tribe's land claim. contrary to !he 

Federal Aq.mfs promises in 1960·6 1. 

had been affected by the 1959 Act 

FollowinQ the Justice Department"s 

recommendations. the Supreme 

Court refused lo follow its earlier 

cases sellinq out the rules for inter· 

pre tinq slatutes affectinq Indians and 

on June 2. 1986. reversed the Court 

of Appeals. The Court he ld. in 

essence. !hat the Federa l aqents· assu· 

ranees that the 1959 Act would not 

affect the Tribe"s land claim and Con· 

QTCSS. reliance on tribal consent were 

irrelevant to determininQ the intent of 

ConQTess. Because the 1959 Act S<1 id 

nothinQ about preservinQ the claim 

and because ConQTess had plainly 

said that State law was lo apply to the 

Tribe. it simply did not maller whai 

the Tribe had been promised. The 

Supreme Court. there fore. ruled thi.lt 

the 1959 Act requires the a pplica tion 

of the state sta lute o f limita tions to the 

Tribe·s claim. The Supreme Court did 

not decide whe ther application of 

slate statute of limita lions would 

defeat the Tribe"s claim. Rather. il sent 

the case bad~ to the Court of Appeals 

to decide what e ffect their applica tion 

would have o n the claim. 
When an Indian '&tbe has 

been assimilated and dispe!>ed to this extenl - and when. as the majority points 

out. thousands ol people now 

claim interests in lhe Tribe's 

ancestral homeland. . .. the 

'&tbe's claim to that land m"! 

seem elhereal. and the 

manner of the '&!be's dispossession may seem of no more 

than h~to<icallnterest . Bul the 

demands of juSike do not 

cease simply because a 

wron~ people QroW less 

disJlnctive. or because !he 

rlqhts olinnocenl third parties 

must be taizen into account in 

lashioninq a remedy. lOOO!'s 

d~lon seriouslf handicaps 

the Catawbas' effort lo obtain 

even partial redress for the 

illeqal expropriation ollands 

twice pled~ 10 them. and 

u does so by attrlbullnq 10 

Conqress. In effect. an WlOrticulaled Intent to trieR the 

Indians a cenJury alter the 

property chanqed hands. 

from any per>pectloe. there 

is little 10 be proud o{ here. 

Because I do not believe 

that Conqress In 1959 expressed an unambiquous 

desire to encumber the 

Catawbas' claim to their I Sihcenlury treaty lands. and 

because 1 aqree wUh justice 

Blacb that lq]reat nations. libe qreat men. should l>eep their 

word.' .. 1 do no1 join the 

judqmenl ol the Court. 

justice Blacl>mun. joined by 

justices Mar>hall and O'Con- nor. dissenllnQ In South 

Carolina v. Catawba Indian 

'&tbe, 4 76 U.S. 498. 5 I 3. 

·: ... , 

876 

In December 1986. a llorneys a~in aTQued before the 41h Circuit Court of Appeals in Richmond 

on the slalule o f limilalions issue. In 

198 7. I he Courl of Appeals asRed I he 

South Carolina Supreme Court lo 

he lp interpret stale law in the case. 

The Slate Supreme Court re fused and 

sent the case bacR to the 4th Circuit. 

finally. in January 1989. the 4th Circuit Court of Appeals ruled that South 

Carolina's statute of limitations did not 

completely bar the Catawbas" claim 

and sent the suil ~ to the Federal 

District Court in South Carolina. 

On remand from the Court 

of Appea~. judqe Willson released 29 

of the 76 defendants a nd tens of thou· 

sands o f acres from the Catawba 

claim in July. 1990. JudQe Willson 

released every defendant and every 

parcel of land that souQht dismissal 

based on the state statute of lim ita · 

lions defense. Once aqain. the Tribe 

appealed JudQe Willson's rulinq to the 

Fourth Circuit Court of Appeals. In 

September. 1992. the Court of 

Appea~ reversed Judqe Willson on 

some issues and parcels of land. but 

affirmed his decision on many others. 

The Tribe petitioned the United Stales 

Supreme Court to review the Court of 

Appeals· decision. but in March 1993. 

the Supreme Court de nied the Tribe's 

petition. 

FollowinQ his dismissal of 

numerous tracts.judqe Willson finally 

aqreed to consider for the first lime 

the Tribe's Motion to Certify a Defendant Class. The Tribe had filed its 

motion for class action status wl!h the 

complaint in 1980. but the named 

defendants had opposed a class 

action and. despite the Tribe's 

repeated efforts to ~~ a rulinq on ils 

moHo n. Jud ~ Willson had postponed 

consideration of the issue for eleven 

years. Once aqain. Judqe Willson 

ruled aqainst the Tribe and in 1991 

adopted verbatim the de fendants" 

proposed order denyinq the class 

action. Orders denyinq class action 

are not appealable without the court's 

approval. and judqe Willson also 

refused to permit the Tribe to appeal 

the den ia l. The Tribe the n a llempted 

to secure review by the Court of 

Appeals throuqh a seldom used 

device call a Wril of Mandamus. But 

because such a Writ calls into question the lower court's ability to prop· 

erly handle a case. such a Writ is 

rarely issued. In 1992. the Court of 

Appeals denied the Tribe·s petition. 

The Tribe did not seeR review in the 

Supreme Court. 

In a re lated lawsuit . the 

Tribe sued the United Slates in 1990. 

seeRinq da a~ for the Governme nt's breach of ils promise lo protect 

the Tribe's land claim from the effects 

of the 1959 Termination Act. The 

Government had done noth inq to 

protect the claim whe n it had prom· 

ised that it VX>uld. In addition. the 

Tribe had not been represented by 

leQal counsel and was wholly reliant 

on its trustee's assurances. Therefore. 

the Tribe souqht to hold the Federal 

Government liable for thai portion of 

Its land claim that had been or would 

be in the fu ture lost as a result of the 

Go-vernment's breach of promise. The 

Government asRed that the Tribe's 

claim be dismissed because the Tribe 

had waited too lonq to sue the United 

States. arquinQ that the Tribe was 

required to sue the United Sta tes by 

1951 or. alternatively. 1968. The United States Claims Court aqreed with 

the Government and in 1991 dismissed the Tribe's claim. The Tribe 

appealed to the Court of Appeals for 

the Federal Circuit a nd in January 

1993. the Court of Appeals uphe ld 

the dismissal. In April of 1993. the 

Tribe will aslo> the Supreme Court to 

review the case and reinstate its claim 

aqainstthe Government. 

Settlement Efforts: 1990-1993 

Followinq the 1989 Court of 

Appeills decision confinTlinQ that a 

substantial portion of the Tribe's claim 

remained alive despite the Supreme 

Court"s decisio n that state sta tutes of 

limitations applied. State and loca l 

qovemments and priVate ""landO\II7fleTS .. renewed the ir Interest in a 

neQOiiated senlement. Conqressman 

john Spratt and Governor Carrol 

Campbell announced the ir prefer· 

e nce for a leQislaltve resolution and 

accepted Chief Blue·s offer to resume 

neqolialions. The Governor appointed 

an advisory taslo> force on the claim 

and named Stale Thx Commissioner 

Crawford ClarRson to head the tasR 

force and participate in the selllemenl 

talbs. Secretary of the Interior Manuel 

Lujan. at Governor Campbell's 

request. announced his support for a 

OeQOiiated selllement and desiqnated 

II 
II 

his counsel. Timothy Glidden. as the 

Federal representa tive to the talbs. 

Tall>s beQan in February 

1990 and continued sporadically 

throuQh July. 1991 . While considerable proQre:SS toward aQTeement was 

made o n a number of issues. the parties remained far apart on other ~ 

issues such as the amount of selfQOVemmenta l powers the Tribe would 

possess and the dollar amount 

required to sellle the case. The 

~ncy that underlay the parties' 

early efforts had dissipated somewhat 

with ud~ Willson's rulinQ in July. 

1990. that 29 defendants and thousands of acres would be dismissed 

from the Tribe's claim. 

lly July. 199 1. when lhe 

Tribe conveyed a counter-offer to sta le 

li ors. public support for any 

selllement thal would require further 

concessions appeared to be minimal. 

Many landowneTS and local officials 

apparently felt they could prevail in 

courl. The Tribe received no response 

to ils July counter-offer. After wailinQ 

several months. a llomeys for the Tribe 

inquired of the slate li ors 

whether a more modest counter-offer 

miQht ~nera e Qrealer interest in settlement. The Tribe was told tha t if 

would and prepared a reduced selllement offer that was submilled to state 

~lia ors in February. 1992. Also in 

February. the Fourth Circuit Court of 

Appeals heard oral arQument in the 

Tribe's appeal of Jud~ Willson's july. 

1990 rulinQ. For the Hrst lime. all 

judQCS on the Court of Appeals 

appeared to be hostile to the Tribe's 

position. Predictably. the Tribe 

received no response to its mcxHried 

counter-offer. 

With hopes for a l~islattve 

selllement d imminQ. the Tribe and its 

a llomeys ~forced to tum their 

a llention once aqain to the lawsuit. 

judqe Willson's rulinQ in February. 

1990. denyinQ certification of a 

defendant class. had the effect of res1arlinQ the runninQ o f a 20-year statute of limitations "cloclt that had 

been stopped when the Tribe filed its 

lawsuit in October. 1980. Thus. when 

ud~ Willson denied class action status in February. 199 1. the Tribe had 

approximately 20 months to either 

fina lly sellle the claim or sue individua lly each of the tens of thousands of 

occupants of the claim area. 

t .'\' 

877 

In April. t992. with o nly six 

months left before the 20-month 

dead line. 1\!ARF a llomeys ~n 

preparalivtlS for suinq and servinQ 

process on the 61.767 occupants of 

the cliJim area individually before the 

statute of limitations expired on 

October 19. 1992. NARF re tained the 

services of a major litiQation support 

firm and assembled a team of computer and direct ma il experts to worb 

with the team of allomeys and parale-

<,~a . Usinq the Tax Assessors' computerized records from Yorb. Lancaster 

and Chesler Counties. the team pre· 

pared the list of names. addresses and 

properly descriptions for 6 t. 767 

defendants. From that list. individualized summonses. complaints. lis 

pendens (nollce of claim of title). and 

notices and acceptances of service by 

mail were printed. NARF Reptthe 

public apprised of the proqress of 

preparalion for suit . 

These preparations had the 

effect of QeneratinQ renewed inleresl 

in selllement. To qive the parties additional time to reach a selllement. 

ConQress. In July. 1992. enacted leQis1a llon ex cndin~ the sta tute of limita· 

tions unlll October I. 1993. Meanwhile. the Tribe's preparations for 

filinq one of the larqest suits of its Rind 

in Federa l Court history continued. 

The Tribe set September 2. 199.3 as 

the la test date II could file and complete service before the October 18 

deadline. When the public learned of 

the fu ll eXIent o f the Tribe's preparations and saw the completed sum· 

mons. complaint. lis pendens (documents 16 1nches thicll) and the 1.4 

million paQeS of Individua lized pleadinQS ready for service by ma il. the c lima te for selllement was beller than it 

had been In I 50 years. But whether 

an aqreement could be reached 

before the September 2. 199.3 fillnq 

date was doubtful. 

In a last minute e ffort to avoid 

filinQ of the massive lawsuit. the 

parties resumed OCQOIIa tions in late 

Auqust Day and niQht. from AuQusl 

21 to Auqust 29. the Tribe. represented by its ful l Executive Commillee 

and its allomeys. barQained over the 

tenns of a proposed aQreement in 

principle. It was critical for the Tribe 

to determine whether enouqh proqres.s toward settlement could be 

made to permit the Tribe to postpone 

filinq suit aqainst the 61.767 individuals. If it appeared libely that a selllement could become fina l before the 

Conqressional extension expired on 

October I . 1993. then the Tribe could 

rely on that extension and postpone 

suit. If. on the other hand. there appeared to be lillie chance that a selllement could be reached. there would 

be no point In delayinQ suit and 

thereby risbinQ a possible fu ture court 

rulinQ that the conqres.sional extension 

was ineffective 10 suspend the runninQ 

of the sta tute of limilalions. 

At 2:00a.m. Auqust 29. 

1992. the neQotlators for the Tribe 

concluded that selllement was libely 

later that day. they presented the outlines of the AQreementln Principle to 

the Tribe meelinQ in General Council. 

The Tribe voted unanimously to postJX>ClC filinq suit and d irected its neQOIiators to brinq bacb any fina l aqreement for its approval. 

Neqotia tions continued and 

on lanua ry 12. 1993. the ~lia ors 

reached an aqreement in principle to 

sellle the claim. On February20. 

1993. fo ll ow n~ a ser-Ies of educa -

Hc>na l worbshops on !he Reservalion. 

the Tribe aQain me l in General Coun· 

c il to consider the proposed AQreement in Principle. After three hours of 

discussion. the Tribe voted 289 to 42 

to accepl the selllemenl aqreement. In 

the near fu ture. selllement leQislation 

will be inlroduced in the United States 

Conqres.s and the South Carolina 

General Assembly. 
Conclusion 

Until the Tribe toob its claim 

to court in 1980. the efforts at resolvinq this dispute had followed a predictable pallem established more than 

two centuries aQO. faced with either 

the impendinQ loss o f their lands or. 

later. the abject poverty resultinQ from 

ils loss. the Catawbas appealed time 

after time to the State of South Carolina for protection and assistance. The 

Sta te. somewhat sympathetic and 

somewhat aware of ils past failures to 

abide by its promises. wou ld "investiqate'' by commission and formulate 

recommendations. but ultimate ly 

would taRe no action. Subsequent 

appeals to the Federal Government 

would be answered by referrinQ the 

Tribe bacb to the Stale on the premise 

that the Catawbas were "State Indians ... Both State and Federal officials 

supported settleme nt but af\!ued that 

the other parfy should bear the cost. 

The 1943 Memorandum of Understandinq oUered temporary hope that 

the pallem of passinQ the bud~ 

between Sta te and Federal Governments had finally come to an end. 

but no sooner did the United States 

accept responsibility than it 

renounced it . 

h is '*neraHy aqreed that 

underlyinQ all parties" reluctance to 

support a fair selllemenl was the suspic ion that the Tribe had no rea lleveraQe: that is. it could not win its case 

in courl. But for the Catawba Tribe 

there appeared to be few optio ns 

More than two centuries o f re lyinQ on 

th e~ will a nd pro mises of the 

State a nd Federal Governme nts had 

resulted only in the loss of the ir ancestral lands a nd severe JXWerly amon~ 

tribal members. It now appears that a 

just seulement is possible. And while 

the proposed selllemenl ca n never 

fully compensate the Tribe for the loss 

of its lands and economic selfsufficie ncy. il is hoped that the selllement will. as Chief Blue stated . pro· 

vide the Tribe and its members with 

the tools to worR toward a briQhter 

future. (Don /J Miller is a senior staff 

aJ/omey atlhe NARF &ulder office 

and has represented the Catawba 

Tribe since 1915.) 

878 

CASE UPDATES 

Northern Cheyenne Tribe 

Waler Jliflh/s 

After years of research and 

lleQOtiation. the Northern Cheyenne 

Tribe and the Stale o f Mo ntana e n· 

tered into an important and historic 

Indian water riqhts compact. The 

Compact resolves al l issues 

conceminQ the nature. exte nt and 

administration of the Tri be"s water 

riQhts in Montana. The Northern 

Cheyenne-Montana Compact was 

passed in ConQress and siQned by 

President Bush on September 30. 

1992. The Compact confirms tribal 

water riqhts to 12.500 acre-feel of 

direct now water and 27.500 acre· 

fee t of sloraQe water from the To nQue 

River: 30.000 acre-feet from the 

Ye llowtail Reservoir: and I .800 acrefeet from Rosebud CreeR. plus an 

additional 19.530 acre-fee t provided 

certain water users upstream and 

downstream are not impacted. The 

Compact further provides that a ll 

Tribal water uses will be administered 

by the tribe and that the Tribe has the 

riQhl to mar~! water off the 

reservation_ The leQislation also 

provides for the establishment o f a 

tribal developme nt fund of 52 1 5 

million to be used for land and 

natural resource development. NARF 

represents the Tribe. 

Fort McDowell Indian 

Community Water flights 

On lanuary I S. 1993. the 

Secretary of the Interior ed an 

aQreement impleme ntinQ leQisla tion 

to resolve the n~ standinQ dispu te 

o...,er the water riqhts o f the Fort 

McDowell indian Community in 

Arizona . In accordance with the Fort 

McDowell Indian Community Water 

RiQhts Selllement Act of I 990. the 

Tribe will receive a maximum annua l 

diversio n riqht of 36.500 ocre-feet of 

water from the Verde River. The 

Community may lease a portion of its 

water. and the federal qovemme nt 

will also provide the Co mmunity a 

deve lopment fund o f 531 million a nd 

a Small Reclamation Project Act loan 

of S 13 million for irriqation development on the reservation. NARF 

represented the Fort Me Dowell 

Indian Community. 

hipfk.~a-C ee Water Rights 

The Chippewa -Cree Tri be 

of the Rocby Boys Reservation in 

NARF UCAl 

RE.VIf:W 

Monta na presented ils water riQhts 

settlement proposal. in the form of a 

proposed compact between the Tribe 

and the State of Montana. to the 

Mo ntana Reserved Water Riqhts 

Compact Commission and to the 

Federal NeqotialinQ Team. The 

proposal calls for the construction of 

new or e nlarQed water supply facilities 

on the Reservation. The Tribe"s 

proposal will provide for the 

administra tion of the Tribe"s water 

riQhts by the Tribe and the riQhtto 

unlimited use o f all Qroundwc ter 

within the Reservation. It also 

provides for the establishme nt of a 

tribal econo mic deve lopme nt fund 

needed to finance the many 

improveme nts that are called for by 

the proposa l. NARF and the Tribe will 

neqotiate this proposa l with thC' Sta te 

and Federal !iKJvcmme nts and worb 

towards finalizin~ a settleme nt 

aQreemenl. havinQ it ratified _by 

ConQress and ultimately havmQ it 

incoi"JX)rated in a final decree issued 

by the Montanil Water Court. 

NARF RESOURCES 

AND PUBLICATIONS 

THE NATIONAL INDIAN 

LAW LIBRARY 

The National lndiiln Law 

Library (NILL) has developed a rich 

and unique collection of l~al 

materials relatinq to federallndicm 

law and the Native American. Since 

its foundinQ in 1972. NILL continues to 

meet the needs of NARF allomeys 

and other praclitioners of Indian law. 

The NILL collection consists of 

standard law library materials. such as 

law review materials. court opinions. 

and leQaltrea ties. that are available in 

wel l-stocRed law libraries. The 

uniqueness a nd irreplaceable core of 

the NILL collection is comprised of 

trial holdinQS and appellate materials 

of important cases latin~ to the 

develo pme nt of Indian law. Those 

materials in the public domain that 

are no n-copyriQhted are availablefrom NILL on a per·paqe-cosl plus 

postaQe. ThrouQh NILLs dissemination 

of information to its patrons. NARF 

continues to meet its commitment to 

the developme nt of Indian law. 

continued 

13 
AVAILABLE PROM NILL 

The NlU Catalogue 

One of NIU:s major 

contribuUons to !he field of Indian law 

is the creation of the National Indian 

Law Library CataiOQue: An Index to 

Indian l.eQal Materials and Resources. 

The NILL CalaiOQ lisls all of NILI:s 

holdinQS and includes a subject index. 

an author-lille table. a plainliffdefendanl table and a numerical 

lislinQ. This reference tool is probably 

the best current reference tool in this 

subject area. It is supplemented 

periodically and is desiQned for those 

who want to bnow what is available in 

any particular area of Indian law. 

(1.000+ Price' 575) (1985 

Supplement $ 10: 1989 Supplement $30) 

Bibliography on Indian 

Economic Development 

Desiqned 10 provide aid on 

the development o f essenlial leqal 

t<>Ots for the protection and ~ulalion 

of commercial ac:ltvilies on Indian 

reservalions. this bibliOQraphy 

provides a lislinQ of articles. boobs. 

memoranda. tribal codes. and other 

materials on Indian economic 

development. 2nd edition (60 pQS. 

Pric"' 530). (NILL No. 005166) 

Indian Claims Commission Decisions 

This 4 7 -volume set reports 

all of the Indian Claims Commission 

decisions. An index throuqh volume 

38 is also available. The index 

contains subject. tribal and docbet 

number lisflnq. (47 volumes. Price 

5 I. 1 7 5). (Index priced separalely al 

525). 

PRICES SUBI~ TO CHANGE 

879 

AVAILABLE I'ROM THE 

INDIAN LAW SUPPORT CENTER 

A Manua l for Pro teclinQ: Indian Natural Resou rces. Desiqned for lawyen 

who represent indian tribes or tribal members in natural resource protection matters. 

the focus of this manual is on the protection of fish. qame. water. limber. minerals. 

Qrazinq lands. and archaeoiOQical and reliqious sites. Part ! discusses the application 

of federal and common law to protect Indian natural resources. Part II consists 

of practice pointen: questions to asll when analyzlnQ resource protection issues: 

strateqy considerations: and the effective use of law advocates In resource protection. 

( 1 51 · Price 525). 

A Manual o n Tribal ul ory Systems. Focusinq on the unique problems 

faced by Indian tribes in desiqninq civil reQulalory ordinances which comport 

with federal and tribal law. this manual provides an introduction to the law of 

civil reQulation and a checlllisl of qeneral considerations in developinq and 

implemenlinq tribal ~ulatory schemes. It hiqhliqhts those Jaws. leqal principles. 

and unsettled issues which should be considered by tribes and their attorneys 

in developinq civil ordinances. irrespective of the particular subject maller to be 

requlaled. (110 Pr ice 525). 

A Self He lp Manua l for Indian Econ o m ic Develo pme n t. This manual 

is desiqned to help Indian tribes and orqanizalions on approaches to economic 

development which can ensure participation. control. ownership. and benefils to 

Indians. Emphasizinq the difference between tribal economic development and 

private business development. this manual discusses the tasb or developinq 

reservation economies from the Indian · perspective. It focuses on some o f the 

ma}or issues that need Jo be resolved in economic development and idenllfles 

options available to tribes. The manual be-Qins with a qeneral economic development 

perspective l'or Indian reservations: how to identify ops:x>rtunilies. and how Jo 

~nize the internal tribal structure to best plan and pu~e economic development 

of the reservation. Other chapten deal with more specific Issues that relate to 

the developmenf of businesses undertallen by tribal qovemments. tribal members. 

and by lhese llfOUps wilh oulsiders. (Approx. 300 · Price 535). 

Handboob of federal lndlan Education Laws. Th~ dboo~ discusses 

provisions of major federal Indian education pi'OQfams In terms of the leQislative 

history. historic problems In implemenlaHon. and current issues in this radically 

chanqinq fie ld. (130 Pr ice 520). 

1986 Update lo fedeTaf lndlan Educalion Law Manual. (530) Price for 

manual and update ($45}. 

A Manual On lhe lndlan Child WeiiBTe Acl and Law Alleclin~ lndlan 

)uftniles. This fifth Indian Law Support Center Manual is now available. This 

manual focuses on a seclion-by-seclion leQal analysis o f the Act. its applicability. 

policies. findinqs. inlerprelalions. and definilions. With addilional sections on post· 

trial mailers and the leQislalive history. this manual comprises the most 

comprehensive examlnalion or the Indian Child WeUare Act to date. (:573 PiS· 

Price 535). 

ANNUAL REPORT. This is NARF's major report o n ils pi"()Ql'ams and aclivilies. 

The Annual Report is distributed to foundaUons. major contributors. certain federal 

and stale aQE:ncies. tribal clients. Native American orqanlzations. and ro others 

upon request. 

NARF t.rcAL REVlEW 
880 

THE NARf LEGAL REVIEW is published by lhe Nalive Amedcan RiQhiS Fund 

Third class posla~ paid at IX>u!der. Colorado. Ray Ramirez. Editor. There is no 

charQe for subscriplions 

Tax Status. The Native American RiQhts fund is a nonprofit. charitable ~anizati n 

incorporated in 1971 under the laws of the District of Columbia. NARF is exempt 

from federal income tax under the provisions of Section SO I {c) (3) o f the Internal 

Revenue Code. a nd contributions to NARF are tax deductible. The lmemal Reve nue 

Service has ruled that NARF is not a "private foundation·· as defined in Section 

509(a) of the Internal Revenue Code. 

Main Office: Nalive American Riqhts Fund. 1506 Broadway. Boulder. Colorado 

80302 (303-447-8760). 

D.C. Office: Native American RiQhls Fund. I 712 N Street. N.W .. Washinqton.D C. 20036 (202-785-4 166). 

AlasRa Office: Native A merican Riqhts Fund. 310 K Street Suite 708. Anchoraqe. 

Alasl>a 99501 (907-276-0680). 

NARF RECEIVES 

HUMAN RIGHTS 

AWARD 

The Nalive American Ri~hl s 

Fund was awarded !he presli~ious 

Carler-Menil Human Ri ~h s 

Foundalion Prize on December 10. 

1992. alonQ wilh !he Hililian RefuQee 

Cenler o f Miami. NARF was selected 

10 receive !his renowned award for 

!heir unswervinQ efforls Jo sland up 

for American Indian li~i us and 

cullural riQh ls. The prize. awarded in 

WashinQton. D.C. on the 44th 

Anniversary of the adoption of the 

Uniled Nations Univer!.al Declaralion 

of Human Ri~ht s. slilled that "The 

Carler-Menil Human Ri~hls 

Foundalion recOQnizes the 

exceplional coura~ and leadership 

of ind;viduals and Qroups who fur1her 

the cause o f human riQhls around !he 

world. In re<:OQnilion of the 

recipienfs profound commilmentlo 

human decency and the proteclion o f 

human riQhts:· The Carter-Menil 

Human RiQhts foundation was 

esJablisl-aed in I 986 by Dominique de 

Menil and former President limmy 

Carler to promole !he proJection of 

human riQhts throuQhoutlhe world. Yvonne KniQht NARf AHonMtf 

NARF LECAL REVIEW 

NARf ATTORNEY Yvonne T. Kni~ht. a slaff 

allomey from NARF"s Boulder o ffice. 

is one of three members o f NARF"s 

LiliQa tion Manaqement Commillee 

which is responsible for qeneral 

manaQemcnt of the leQal services 

provided by NARF. tvonne is of 

Ponca·Creeb descent and a member 

o f the Ponca Tribe of Oblahoma. 

While in law school. she was a 

foundin~ member o f the American 

Indian Law Studenls Association (now 

!he Native American Law S!udenls 

Association). and served on !he first 

board of direclors of thai otQanization 

Yvonne was !he first indian woman 

law Qraduate from !he University of 

New Mexlco"s Indian Law Scholarship 

ProQram. She joined NARF as a staff 

allomcy in 19 71 and has represenled 

severallribes and individuals in cases 

involvin~ a variety of Indian law 

issues. Yvonne served as a membeT of 

a task force of the American Indian 

Policy Review Commission 

responsible for recommendinQ 

chanqes in federal statutes affecllnq 

Indians. She was oclively involved in 

!he pa.ssaQC of !he Menominee 

Res!oralion Acl. She has also had 

extensive lawyerinq experience in 

such areas of Indian law as draflinQ 

tribal consliluHons: defininQ and 

fo in ~ the federal trust 

responsibility to Indians: liliQalinQ 

tribal claims to land. waler. and o ther 

nalural resources: enforcinQ Indian 

educalion riqhls: and defininq and 

enforcinq tribal court jurisdiction 

Currently. Yvonne is co cent alin~ 

much of her effort in the area of 

eslablishinq friba I reserved water 

riqhls. B.S .. Universily of Kansas 

( 1965): J.D .. Uni~ily of New Mexico 

(1971): ~inald Heber Smilh Fel low 

(Auqusl 1971 lo July 1974): Nalive 

American Ri~hts Fund ( t971 to 

presenl): admilled lo practice law in 

certain tribal courls. in the federal 

and slate courls of Colorado. and in 

olher federal courl jurisdiclions. 

includinq several districl courls. the 

Eiqhlh. Ninth. and Tenth Circuil 

Courls of Appeals. lhe United States 

Claims Court. and the United Slates 

Supreme Courl. (Pholo credil. 

Thomey Lieberman) 

" 
881 

Native American Ri\thts Fund 

The Native American Riqhts Fund is a nonprofit orqanizahon 

specializinq in the proleclion of Indian riQhls. The priorilies of NARF are: (I) 

the preservation of tribal existence: (2) !he protecllon of friba! natural resources: 

(~}the promolion of human ri!;!hls: (4) the accountabillly of ~emmenls to 

Native Americans: and (5) the development of Indian law. 

Our worb on behalf of thousands of America's Indians throu~hout 

the counlry is suppotled in larQe pari by your Qenerous contributions. Your 

participation mabes a biq difference in our ability to continue to meel everincreasinq needs of impoverished Ind ia n tribes. qroups and individual5. The 

suppcxl needed to sustain our na lio nwide prc>Qram requires your continued 

assistance. Requesls for J~al assislam:e. contributions. or other inquiries reQardinQ 

NARf's services may be addressed to NARF's main office: 1506 Broadway. 

Boulder. Colorado 80302. Telephone (303) 447·8760. 

BOARD Of DIRECTORS Richard (Sitip) Hayward, Chairman ................ ....... Moshanluctet Pequot 

Anthony L Siron~ Vice-chair . . .......... . Tlin'iit-Klukwan 

Uond Bordeaux . . .. . . Rosebud Sioux 

Mildred CleQhorn . . . . . . Fad &If ADacne 

Ricb Hill ... . ....... . .... C>Mida 

Mahealani Kamauu .. . .................. ........... . 

Willie Kasayulie . . 

John R. Lewis . . . .... . .•.•. •........ 

T•lla Marfin-Kebahbah . 

. . . ... .. .. Native Howoiian 

......... .... .. Yupii 

. .... . Mohave/Pima 

... Turtle Mountain Chippewa 

.. ...... ... . . . Squaxin /slanri 

. ........ .. .. Sa/is!i-Kootenai 

Cal•in Peters . 

Evelyn Stevenson ... 

Eddie Tullis .. . .... ... ..... Poarc!i Band of CreeKs 

Verna Williamson .... 

Execulive Director: lohn E. f..chohawb 

NARF Legal Review 

1506 Broadway 

Boulder, CO 80302 

. .. . ...... . Isleta Pueblo 

.......•.•• (Paii1T!ee) 

NARF LEGAL 

REVIEW 

Wha~ cause yoo're Riving to now. set a goal to 

incrf:asc your .lt'iv n~ to a l that will make a 

pcmwk'flt and p!)('li tive .Gr.or f"rYe 5hours a 

Wl'!f'kand olyour~ ~rrwan:kwiUmakt- yoo 

fed like a winne r rYr ry day of your lifr-. For moro.> 

in!ornuition.caU I-8QO.SS.GrvE..S. 

!1"'. fi!:::-= ~ IS 

Non·Profil Or~. 

U.S. Pos1* 

PAID 

Boulder. Colorado 

Penni! No. 589 
882 

PUBLIC LAW 102-339---AUG. 11, 1992 

Public Law 102-339 

1 02d Congress 

An Act 

106 STAT. 869 

To provide additionll time lo DOCOiiate settlement of a !aDd di.puU in Sout.h Alllt- 11, 1992 

. c..mUna. . [TI.ll 5500) 

& il .enac~ by tM Senate and HoUM of RepreMmatiuu of 

tht! United Suua of Amuiro ~ Cort.gl'eU auembled, lndiaM. 

SECTION 1. FINDINGS. 

The Congress finds the fo~ 

(l) Suits on posaesaary limd claima !ll8Y be commenced . against tens of thousands of citizens i:u York, Lancaster, and 

Cheater Counties, South Carolina, within the area claimad 

in the fUit Catawba Indian Tn"be of South Carolina against 

State of South Carolina, et al., Civil Action No. 80-2050 

(D.S.C.), 

(2) Tens of thousands of such suita would be costly to all 

parties, inclnding the Federal judicial system, and would creata a burden ~n intemate commerce. (3) The filing af !lllch suits IIUlY be a'ierled by settlement 

if additional time is made available for the parties to negotiate 

and inlplement the t6ms of settlement. 

(4) The Congress has authority to enact this Jegialation under 

the Indian Commerce Clause and the Interstate Commerce 

Clause of the Conmtutian; and the Department of Justice concun in this construction of Article I of the Constitution. 

SEC. 2. PURPOSE. 

The'Jurpose of this Act is to prevent the social, e~:anomic, and 

judici disruption that would result from the commencement of 

law suits against tellll of thousands of citizens in York, Lancaster, 

and Chester Counties, South Carolina, and the burden on interstate commerce that such suits would impose. Tha parties to the a!l<>w 

referenced suit require additional time in which to negotiate and 

implement the tenns of settlement; and if such time is made 

available, it may avert ~ necessity of thOtl!laD.ds or law suits. 

The purpose of this Act iA not to revive, re:new, or extend any 

claim barred by any period of limitation, repose, or time bar a.a 

of the effective date of this Act. . 

SEC. S. STATUTE OF LOOTATION. 

(a) If !1Il1. period of limitation or repose, or any other defense 

bll.S<!d wholly or partly on the passage of time, ban any claim 

brought by or on behalf of any Indian. Indian nation, or tribe or band of Indians claiming or asse~-danliges or an interest 

in land in York, Lancaster, or Chester Clunties, South Carolina, 

under section 2116 af the Revised Statutes (25 U.S.C. 177; 

co=only known as the Indian Non.Intercoursa Act), the 

Constitution of the United States, common law, or anr treaty, as of the date of enactment af this Act, such period or limitation or repose, or other defei)Se based wholly or partly on passage 

.'?::'~'{-::j::~:if~ititj:J;:?.~~::~-

. • July 2, 19~)3. 

House Hearings • H.R. 2399 
883 

106 trrAT. 870 PUBLIC LAW 1oz..339-AUG.ll, 1992 

at time, llhall ber 8J11 aw:h claim. 1rithout nprd to whether IIUCh 

claim hu alreadl beell filed. 

(b) IC ~period or liali.tatioa or repoR.z or aDY other deteJUie 

bued who or partq 011 the paaage_ ~-time, haa no~ brured 

any claim, ed or tmfiled, by or Oll behalf at an India~ 

nation, 

or an intarest 

or tribe 

In 

or band 

land 

of 

ia 

Inilians 

York. 'Lallcuter, 

c1aimiDc or 

or 

~ 

Cheater County, South Carolina, UDder sectWo. 2116 or the Revi.aad Statutes (25 

U.S.C. 177; c:ommoniy .lmDwn • the India.a Non-Intercourse ht), 

the CoDStitudoD at the UDited States, common law, or treaty, u or the date of the enact.meDt ar thia Act, ~· runDiDg of ~ web 

period of limitat:iOll or rapoae, or ~ other deCease baaed wholl7 or partly OD ~ paa88iV a( time, llhall be auspended U of the 

date of the enac:tmeut of thia Act until October 1, 1993. On 

October 1, 1993, the time upcm ...-hich 11117 such defenaee are baaed 

llhaD. resume ruutliD&'- The ~ or time ~ far ~ timerelated def- to 'lliK:oiDa a bar to any suc:h claiJD lhall be the aeme 011 Cktober 1, 1993, as it wa tznmediatel;r ~ to the date 

of the euactment of this Al:t. Nathia& in thia aubeec:tiOD lha1l 

be construed tD afl"ec:t th• a}lplicatiaa. of 8111 period or lmUtadoD, 

repo18, or time bar to tht aaim or any indiVidual Indian wbich 

is pursued undar any Fed.ral or State law pnenlly applicable 

to noa-Indlam u well as In.dianl. 

Approved AU&Qat 11, 1992. 

0 
884 

Kf:.: 

35 

Vol. 138 WASHINGTON, MONDAY, JULY 27, 1992 No. 107 

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United States 

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DEVOSil"OilY ITEM 

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LAV/ LIUI!ARY 

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AUG0-11992 

UNIV. OF COLO. 

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United States Government 

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· Sl0914 CONGRESSIONAL RECORD-SENATil July 30, ~992 
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2 June 2, 1993 

3 

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895 

s. 608 

6 Introduced by SENATORS Hayes, Gregory, Peeler and 

7 Short 

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9 S. Printed 6/2/93--H. 

10 Read the first time April 28, 1993. 

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Exhibit P 

July 2, 1993 

House Hearings - H.R. 2399 

[608-1] 
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896 

A BILL 

11 TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, 

12 BY ADDING CHAPTER 16 TO TITLE 27 SO AS TO IMPLEMENT 

13 THE SETTLEMENT OF CATAWBA INDIAN LAND AND OTHER 

14 CLAIMS IN SOUTH CAROLINA. 

15 Amend Title To Conform 

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Be it enacted by the General Assembly of the State 

of South Carolina: 

SECTION 1. 

by adding: 

Title 27 of the 1976 Code is amended 

"CHAPTER 16 

The Catawba Indian Claims Settlement Act 

Section 27-16-10. This chapter is known as 'The 

Catawba Indian Claims Settlement Act'. 

Section 27-16-20. The Legislature finds: 

(1) The Catawba Indian Tribe has filed lawsuits 

in both the United States District Court for the 

District of South Carol ina, claiming possessory 

rights to certain lands in South Carolina and 

trespass damages and in the United States Court of 

Federal Claims seeking monetary damages against the 

United States. 

(2) The pendency of these lawsuits has resulted 

in severe economic and social hardships for large 

numbers of landowners, citizens, and communities in 

the State, and therefore for the State as a whole. 

If these claims are not resolved, further 

litigation involving tens of thousands of 

landowners would be likely. 

[608] l 
897 

1 (3) The Indian claimants and the State, acting 

2 through the Governor, have reached an agreement in 

3 principle to settle their differences which 

4 constitutes a good faith effort on the part of all 

5 parties to achieve a fair and just resolution of 

6 claims which, in the absence of this settlement, 

7 could be pursued through the courts for many years 

8 to the detriment of the State and all its citizens, 

9 including the Indians. 

10 (4) The implementation of the settlement 

11 requires legislation by the Congress of the United 

12 States and by the General Assembly of South 

13 Carolina. 

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Section 27-16-30. As used in this chapter: 

(1) 'Catawba Claim Area' means that area of 

approximately one hundred forty-four thousand acres 

in York, Lancaster, and Chester Counties claimed by 

the Catawba Tribe under the Treaty of Pine Tree 

Hill in 1760 and the Treaty of Augusta in 1763, and 

surveyed by Samuel Wylie in 1764, and ceded by the 

Catawba Indian Tribe to South Carolina by the 

Treaty of Nation Ford in 1840. 

(2) 'Catawba Indian Tribe,' 'Catawbas,' or 

'Tribe' means the Catawba Indian Tribe of South 

Carolina as constituted in aboriginal times, which 

was party to the Treaty of Pine Tree Hi 11 in 1760 

as confirmed by the Treaty of Augusta in 1763, 

which was party also to the Treaty of Nation Ford 

in 1840, and which was the subject of the Catawba 

Indian Tribe of South Carolina Division of Assets 

Act, enacted September 29, 1959, codified at 25 

U.S.C. Sections 931-938, and all predecessors and 

successors in interest, including the Catawba 

Indian Tribe of South Carolina, Inc. 

(3) 'Claim' or 'Claims' means a claim which 

was asserted by the plaintiffs in either suit, and 

any other claim which could have been asserted by 

the Catawba Indian Tribe or a Catawba Indian of a 

right, title, or interest in property, to trespass 

or property damages, or of a hunting, fishing, or 

other right to natural resources, if the claim is 

based upon aboriginal title, recognized title, or 

title by grant, patent, or treaty, including the 

[608] 2 
898 

1 Treaty of Pine Tree Hill of 1760, the Treaty of 

2 Augusta of 1763, or the Treaty of Nation Ford of 

3 1840. 

4 (4) 'Executive Committee' means the body of 

5 the Catawba Indian Tribe of South Carolina composed 

6 of the Tribe's executive officers as se 1 ected by 

7 the Tribe in accordance with its constitution. 

8 ( 5) 'Existing Reservati on' means that tract 

9 of approximately six hundred thirty acres conveyed 

10 to the State in trust for the Tribe by J.M. Doby on 

11 December 24, 1842, by deed recorded in York County 

12 Deed Book N, pages 340-341. 

13 (6) 'Federal implementing legislation' means 

14 all appropriate federal legislation necessary to 

15 enact and effect the terms, provisions, and 

16 conditions of the Settlement Agreement. 

17 (7) 'General Council' means the membership of 

18 the Tribe convened as the Tribe's governing body 

19 for the purpose of conducting tribal business 

20 pursuant to the Tribe's constitution. 

21 (8) 'Internal Matters' or 'Internal Tribal 

22 Matters' are matters which include, but are not 

23 limited to, the relationship between the Tribe and 

24 one or more of its members, the conduct of Tribal 

25 government over members of the Tribe, or the 

26 Tribe's exercise of the power to exclude 

27 individuals from its Reservation. 

28 (9) 'Member' means individuals who are 

29 members of the Tribe as determined in accordance 

30 with the federal implementing legislation. 

31 (10) 'Reservation' or 'expanded reservation' 

32 means the existing reservation and lands added to 

33 the Existing Reservati on pursuant to the federa 1 

34 implementing legislation which will be held in 

35 trust by the Secretary. 

36 ( 11) 'Secretary of the Interior' or 

37 'Secretary' means the Secretary of the Department 

38 of the Interior or his designee, and 'Department' 

39 or 'Department of the Interior' refers to the 

40 United States Department of the Interior. 

41 (12) 'Settlement Agreement' means the written 

42 'Agreement in Principle' reached between the State 

43 and the Tribe and attached to the copy of the act 

[608] 3 
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1 enacting this chapter signed by the Governor and 

2 filed with the Secretary of State. 

3 (13) 'State Gc·;ernment' or 'State' means South 

4 Carol ina. 

5 (14) 'Suit' or 'suits' means Catawba Indian 

6 Tribe of South Carolina v. State of South Carolina, 

7 et al., docketed as Civil Action No. 80-2050 and 

8 filed in United States District Court for the 

9 District of South Carolina; and Catawba Indian 

10 Tribe of South Carolina v. The United States of 

11 America, docketed as Civil Action No. 90-553L and 

12 filed with the United States Court of Federal 

13 Claims. 

14 (15) 'Termination Act' means the 'Catawba 

enacted 

Section 

15 Indian Tribe Division of Assets Act,' 

16 September 21, 1959, 73 Stat. 592, 25 U.S.C. 

17 931-938. 

18 (16) 'Transfer' includes, but is not 1 imited 

19 to, a voluntary or an involuntary sale, grant, 

20 lease, allotment, partition, or other conveyance; 

21 a transaction the purpose of which was to effect a 

22 sale, grant, lease, allotment, partit·ion, or 

23 conveyance; and an act, an event, or a circumstance 

24 that resulted in a change in title to, possession 

25 of, dominion over, or control of land or natural 

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resources. 

(17) 'Tribal Trust Funds' means those funds 

set aside in trusts established by the Secretary 

for the benefit of the Tribe and its members 

pursuant to the federal legislation implementing 

the Settlement Agreement. 

Section 27-16-40. The Catawba Tribe, its 

members, lands, natura 1 resources, or other 

property owned by the Tribe or its members, 

including land, natural resources, or other 

property held in trust by the United States or by 

any other person or entity for the Tribe, is 

subject to the civil, criminal, and regulatory 

jurisdiction of the State, its agencies, and 

political subdivisions other than municipalities, 

and the civil and criminal jurisdiction of the 

courts of the State to the same extent as any other 

person, citizen, or 1 and in the State, except as 

[608] 4 
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1 otherwise expressly provided in this chapter or in 

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Section 27-16-50. (A) The General Assembly 

recognizes and acknowledges that the Settlement 

Agreement requires payment to the Catawba Indian 

Tribe of fifty million dollars of which thirty-two 

million dollars is to be contributed by the federal 

government. The State shall contribute twelve 

million, five hundred thousand dollars toward the 

settlement, which must be paid in five annual 

payments in the amount of two million, five hundred 

thousand dollars. The State's initial annual 

payment must be made within ninety days after the 

effective date of the implementing legislation, and 

the State's annual payments cant i nue on the same 

day and month for four consecutive years, or at the 

option of the State, the remaining balance of the 

contribution may be paid in full at any time within 

five years of the effective date of this chapter. 

(B) The State Treasurer shall collect all local 

and private contributions to settlement and forward 

them to the Secretary. 

(C) Upon completion of all payments into the 

Trust Funds created by the federal implementing legislation and the Settlement Agreement, at least 

one-third of all state, local, and private 

contributions must be paid into the Education Trust 

Fund. 

(D) Private payments made pursuant to Section 

5.2 of the Settlement Agreement may be treated at 

the election of the taxpayer as either a payment in 

settlement of litigation or a charitable 

contribution for state income tax purposes. 

(E) If the State's contribution of twelve 

million, five hundred thousand dollars, or any part 

of it, is not paid as scheduled, the Tribe, or the 

United States on behalf of the Tribe, has a cause 

of action against the State for the amount not paid 

when due. Suit on this cause of action may be 

brought, at the election of the Tribe, in the Court 

of Common Pleas of South Carolina or in the United 

States District Court for the District of South 

Carolina. Until the entire twelve million, five 

(608) 5 
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1 hundred thousand dollars is paid, the State waives 

2 any Eleventh Amendment immunity which may bar a 

3 st.: it in the United States District Court for the 

4 District of South Carolina, but this waiver applies 

5 only to the cause of action referred to in this 

6 subsection. 

7 (F) None of the funds, assets, or income from 

8 the Tribal Trust funds may at any time be used as 

9 a basis for denying or reducing funds to the Tribe 

10 or its members under federal, state, or state 

11 funded local program, and distributions from the 

12 Tribal Trust Funds may be used as matching funds 

13 for other state, local, or federal grants or loans. 

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15 Section 27-16-60. (A) Any transfer of land or 

16 other natural resources located anywhere within the 

17 State, from, by, or on behalf of the Tribe 

18 including, but without limitation, a transfer 

19 pursuant to a treaty, compact, or statute of any 

20 state, is deemed to have been made in accordance 

21 with the laws of the State. 

22 (B) Any transfer of land or other natural 

23 resources located anywhere within the State from, 

24 by, or on behalf of a member of the Tribe or a 

25 person purporting to be a member of the Tribe 

26 including, but without limitation, a transfer 

27 pursuant to a treaty, compact, or statute of a 

28 state, is deemed to have been made in accordance 

29 with the laws of the State. 

30 (C) By virtue of the approval and ratification 

31 of any transfer of land or natural resources 

32 affected by this s~ction, all claims und~r a 

33 statute or the com~on law of a state against the 

34 United States, a state or subdivision of the United 

35 States, or another person or entity, by the Tribe, 

36 any of its members or any person purporting to be 

37 a member, or any predecessors or successors in 

38 interest thereof, arising at the time of or 

39 subsequent to the transfer and based on any 

40 interest in or right involving the land or natural 

41 resources, including without limitation claims for 

42 trespass damages, claims for use and occupancy, or 

43 c 1 aims for damages to property, are deemed 

44 extinguished as of the date of the transfer. 

[608] 6 
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1 {D) Nothing in this section affects, diminishes, 

2 or eliminates the personal claim of an individual 

3 Indian which is pursued under a law of general 

4 applicability that protects non-Indians as well as 

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Section 27-16-70. {A) Except as provided in 

this section, South Carolina shall exercise 

exclusive jurisdiction over all crimes under the 

statutory or common law of this State. 

(B) A constitution adopted by the Tribe may 

provide for a tribal court with criminal 

jurisdiction. 

(1) If a tribal court with criminal 

juri sdi ct ion is cteated, the territori a 1 

jurisdiction of the court both original and 

appellate must be limited to the Reservation; the 

juri sdi ct ion of the court over persons must be 

limited to members of the Tribe; and the subject 

matter jurisdiction of the court is limited to 

crimes within the jurisdiction of the state 

magistrates' courts and to any additional 

misdemeanors and petty offenses specified in the 

ordinances or laws adopted by the Tribe. The fines 

and penalties for the offenses may not exceed the 

maximum fines and penalties that a state 

magistrate's court may impose. 

(2) In all cases in which the tribal court 

has jurisdiction over state law, its jurisdiction 

must be concurrent with the juri sdi ct ion of the 

magistrates' courts of the State; and defendants 

shall have the right to remove the cases to the 

magistrate's court or appeal their convictions in 

tribal court cases to the General Sessions Court, 

in the same manner that magistrate's court 

decisions may be appea 1 ed, or in accordance with 

procedures the General Assembly may provide. In 

cases where the tribal court is applying those 

additional ordinances or laws described in item 

(1), it shall have exclusive jurisdiction. 

(C) For the purpose of enforcing the Tribe's 

powers provided by this chapter and the federa 1 

implementing legislation, the Tribe may employ 

peace officers. 

[608] 7 
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1 (1) If the Tribe elects to employ peace 

2 officers, all tribal peace officers shall undergo 

3 and pass the same course of training required of 

4 sheriff's deputies by South Carolina. 

5 (2) The State, the Counties of York and 

6 Lancaster, and the Tribe shall enter into a 

7 cross-deputization agreement whereby tribal law 

8 enforcement officers are authorized to enforce 

9 state, county, and tribal law within the 

10 Reservation against members and nonmembers of the 

11 Tribe, and state and county law enforcement 

12 officers are authorized to enforce state, county, 

13 and tribal law within the Reservation against 

14 members and nonmembers of the Tribe. However, if 

15 the reservation is located in only one of the two 

16 counties, only the sheriff of that county shall 

17 enter into a cross deputization agreement as 

18 provided in this section. 

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Section 27-16-80. (A) The Tribe may provide in 

its constitution for a Tribal Court having civil 

jurisdiction which may extend up to, but not 

exceed, the extent provided in this chapter and the 

federal implementing legislation. The Tribe may 

have a court of original jurisdiction, as well as 

an appellate court. 

(l) With respect to actions on contracts, the 

Tribal Court may be vested with jurisdiction over 

an action on a contract: 

(a) to which the Tribe or a member of the 

Tribe is a party, which expressly provides in 

writing that the Tribal Court has concurrent or 

exclusive jurisdiction. 

(b) between the Tribe or a member of the 

Tribe and other parties or their agents who are 

physically present on the Reservation when the 

contract is made, and which is to be performed in 

part on the Reservation so long as the contract 

does not expressly exclude jurisdiction of the 

Tribal Court. For purposes of this section, the 

delivery of goods or the solicitation of business 

on the Reservation does not constitute part 

performance sufficient to confer jurisdiction. 

[608] 8 
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1 (c) to which the Tribe or a member of the 

2 Tribe is a party where more than fifty percent of 

3 the services to be rendered are performed on the 

4 Reservation, so long as the contract does not 

5 expressly exclude jurisdiction of the Tribal Court. 

6 (2) With respect to actions in tort, the 

7 Tribal Court may be vested with jurisdiction over 

8 an action arising out of: 

9 (a) an intentional tort, as defined by 

10 South Carolina law, committed on the Reservation, 

11 in which recovery is sought for bodily injuries or 

12 damages to tangible property located on the 

13 Reservation. 

14 (b) negligent tortious conduct occurring on 

15 the Reservation or conduct occurring on the 

16 Reservation for which strict liability may be 

17 imposed, excluding, however, accidents occurring 

18 within the right-of-way limits of a highway, road, 

19 or other public easement owned or maintained by the 

20 State or its subdivisions or by the United States, 

21 which abuts or crosses the Reservation. However, 

22 the action in tort involving a nonmember of the 

23 Tribe as defendant may be removed to a state or 

24 federal court of appropriate jurisdiction if the 

25 amount in controversy exceeds the jurisdictional 26 limits then applicable to magistrate's court in 

27 South Carolina. 

28 (3) The Tribal Court may be vested with 

29 exclusive jurisdiction over internal matters of the 

30 Tribe. 

31 (4) The Tribal Court also may be vested with 

32 jurisdiction over domestic relations where both 

33 spouses to the marriage are members of the Tribe 

34 and both reside on the Reservation or last resided 

35 together on the Reservation before the separation 

36 leading to their divorce. 

37 (5) The Tribal Court also may be vested with 

38 jurisdiction to enforce against a business located 

39 on the Reservation and members or nonmembers 

40 residing on the Reservation, tribal civil 

41 regulations regulating conduct on the Reservation 

42 enacted pursuant to Section 10.2 or 17 of the 

43 Settlement Agreement. The entity or person is 

44 charged with notice of the Tribe ' s regulations 

[608] 9 
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1 governing conduct on the Reservation and is subject 

2 to the enforcement of the regulations in the Tribal 

3 Court unless the Tribe specifically has exempted 

4 the entity or person from any or all regulation or 

5 enforcement in Tribal Court. 

6 (B) The original jurisdiction of the Tribal 

7 Court over the matters set forth in subsections 

8 (A)(l)(b}, (A)(1)(c), (A)(2}, and (A)(4) must be 

9 concurrent with the juri sdi ct ion of the Court of 

10 Common Pleas of South Carolina, the Family Court, 

11 and the United States District Court for South 

12 Carolina. The original jurisdiction of the Tribal 

13 Court over the matters set forth in subsection 

14 (A)(1)(a) must be concurrent or exclusive depending 

15 upon the agreement of the parties. The original 

16 jurisdiction of the Tribal Court over matters set 

17 forth in subsection (A)(3) must be exclusive. The 

18 original jurisdiction of the Tribal Court over 

19 matters set forth in subsection (A) ( 5) must be 

20 exclusive unless the Tribe has waived exclusive 

21 jurisdiction as to any person or entity. As to all 

22 sections referred to in this subsection, 

23 jurisdiction over appeals, if any, must be governed 

24 by subsection (0). 

25 (C) The Tribe may waive Tribal Court 

26 jurisdiction or the application of tribal laws with 

27 respect to a person or firm residing, doing 

28 business, or otherwise entering upon the 

29 Reservation or contracting with the Tribe. A 

30 member of the Tribe also may waive Tribal Court 

31 jurisdiction or specify in the contract the law of 

32 an appropriate jurisdiction to govern a commercial 

33 transaction or the interpretation of a contract to 

34 which the member is a party. 

35 (D) (1) All final judgments entered in actions 

36 tried in Tribal Court are subject to an appeal to 

37 the Family Court, the Court of Common Pleas, or the 

38 United States District Court, depending upon 

39 whether that court would have had jurisdiction over 

40 the appealed matter had it been commenced in that 

41 court, if all of the following circumstances exist: 

42 (a) A party to the suit is not a member of 

43 the Tribe; 

(608] 10 
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1 (b) The amount in controversy or the cost 

2 of complying with an equitable order or decree 

3 exceeds the jurisdictional limits then applicable 

4 in the magistrates' courts of South Carolina; 

5 (c) The subject matter of the suit does not 

6 fall within subsection (A)(l)(a) if jurisdiction is 

7 exclusive or subsection (A)(3) or (A)(S). The 

8 Tribe may enlarge the right of appeal to include 

9 other subject matters and members of the Tribe, 

10 subject to rules and procedures the applicable 

11 court and relevant state laws may provide. 

12 (2) In an appeal, the court, as appropriate, 13 

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may: 

(a) enter judgment affirming the Tribal 

Court; 

(b) dismiss the case for lack of 

jurisdiction of the Tribal Court, but only in those 

cases where the Tribal Court first has addressed 

the issue of its jurisdiction; 

(c) reverse or remand the case for retrial 

or reconsideration in Tribal Court; or 

(d) grant a trial de novo in its court. 

(3) In an appeal, a trial, or a trial de 

novo, the reviewing court shall apply any regulation enacted pursuant to tribal authority. 

(E) (1) In cases subject to subsection (A)(2) 

or (D), all final judgments of the Tribal Court 

must be given full faith and credit in the state 

court with appropriate jurisdiction, and the Tribal 

Court shall grant full faith and credit to state 

court final judgments. 

(2) In those cases which are not subject to 

subsection (A)(2) or (0}, the judgment must be 

reviewed by the state court in the manner provided 

in the Uniform Arbitration Act, Section 15-48-10 

et.seq. or, if appropriate, by the federal court in 

the manner provided in the United States 

Arbitration Act, 9 U.S.C. 1 et. seq. 

(F) (1} The Tribe may sue or be sued, in a 

court of competent jurisdiction. However, the 

Tribe enjoys sovereign immunity including damage 

limits and, except as provided in this subsection; 

immunity from seizure, execution, or encumbrance of 

properties, to the same extent as the po 1 it i cal 

[608] 11 
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1 subdivisions of the State as provided in the South 

2 Carolina Tort Claims Act, Chapter 78 of Title 15. 

3 With respect to nonconsumer 1 i ability based on 

4 contract, however, the Tribe, in a written 

5 contract, may provide that it is immune from suit 

6 on that contract as if there had been no waiver of 

7 sovereign immunity. 

8 (2) Notwithstanding the provisions of this 

9 subsection, the Tribe is subject to suit as 

10 provided in Section 27-16-120(8). 

11 (3) The Tribe shall procure and maintain 

12 1 i abi 1 i ty insurance with the same coverage and 

13 limits as required of political subdivisions of the 

14 State by Section 15-78-140(b). 

15 (4) An action alleging tortious conduct by an 

16 employee of the Tribe acting within the scope of 

17 his duties which seeks money damages against the 

18 Tribe must name only the Tribe as a party 

19 defendant. 

20 (5) A settlement or judgment in an action or 

21 a settlement of a claim filed with the Tribe 

22 constitutes a complete bar to further action by the 

23 claimant against the Tribe by reason of the same 

24 occurrence. 

25 (6) A claimant may file a verified claim for 

26 damages with the Tribe before filing suit but is 

27 not required to file the claim as a prerequisite to 

28 filing suit. 

29 (a) The claim must set forth the 

30 circumstances which brought about the loss, the 

31 extent of the loss, the time and the place the loss 

32 occurred, the names of all witnesses, if known, and 

33 the amount of the loss sustained. 

34 (b) The Tribe shall designate an employee 

35 or office to accept the filing of claims. Filing 

36 may be accompli shed by receipt by the Tribe's 

37 designee of certified mailing of the claims or by 

38 compliance with the provisions of law relating to 

39 service of process. · 40 (c) If filed, the claim must be received 

41 within one year after the loss was or should have 

42 been discovered. 

43 (d) The Tribe has one hundred eighty days 

44 from the date of the filing of the claim in which 

[608) 12 
908 

1 to determine whether the claim is allowed or 

2 disallowed. Failure to notify the claimant of 

3 action upon the claim within one hundred eighty 

4 days after the filing of the claim is considered a 

5 disallowance of the claim. 

6 (e) While the filing of the claim is not 

7 required as a prerequisite to suit, if a claimant 

8 files a claim, he may not institute an action until 

9 after the occurrence of the earliest of one of the 

10 following three events: 

11 ( i) passage of one hundred eighty days 

12 from the filing of the claim with the Tribe; 

13 (ii) Tribe's disallowance of the claim; 

14 (iii) Tribe's rejection of a settlement 

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offer. 

(7) The provisions of the following sections 

of the South Carolina Tort Claims Act apply to the 

Tribe to the same extent as they apply to the State 

and its political subdivisions: 

(a) Section 15-78-100(c), 

tortfeasors; 

(b) Section 

limitations; 

15-78-110, statute 

joint 

of 

(c) Section 15-78-170, survival actions; 

(d) Section 15-78-190, applicability of 

uninsured or underinsured defendant insurance. 

( 8) If the Tribe's insurance coverage is 

inadequate or unavailable to satisfy a judgment 

within the limits of the Tort Claims Act, neither 

the judgment nor any other process may be levied 

upon the corpus or principal of the Tribal Trust 

Funds or upon property held in trust for the Tribe 

by the United States. However, the Tribe or the 

Secretary of Interior shall honor valid orders of 

a federal or state court which enters money 

judgments for causes of action against the Tribe 

arising after the effective date of this chapter, 

by making an assignment to the judgment creditor of 

the right to receive income out of the next 

quarterly payment or payments of income from the 

Tribal Trust Funds. 

(G) The Indian Child Welfare Act, 25 U.S.C. § 

1901 et seq., applies to Catawba Indian Children as 

set forth in the federal implementing legislation. 

(608] 13 
909 

1 (H) If no Tribal Court is established by the 

2 Tribe, the State shall exercise jurisdiction over 

3 all civil and criminal causes arising out of acts 

4 and transactions occurring on the Reservation or 

5 involving members of the Tribe. If the.Tribe does 

6 establish a Tribal Court pursuant to Section 27-16-

7 70(B) or 27-16-80(A), Section 27-16-70(8)(2) or 27-

8 16-80 (B) governs whether jurisdiction is exclusive 

9 or concurrent. 

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Section 27-16-90. (A) The State, after 

obtaining any necessary judicial approval, may 

convey the Existing Reservation to the United 

States of America. 

(B) An Expanded Reservation shall be created in 

the manner prescribed by the federal implementing 

legislation and the Settlement Agreement. This 

Expanded Reservation must be joined with the 

Existing Reservation to form the new tribal 

Reservation. 

(1) (a) The total area of the Reservation is 

limited to three thousand acres, including the 

Existing Reservation, but the Tribe may exclude 

from this limit up to six hundred acres of 

additional land if the land is: 

( i ) w i t hi n r i g h t s-o f- way for pub 1 i c 

roads or public utilities rendered unusable for 

development by the easement or right-of-way; (ii) within the one hundred-year flood 

plain of the Catawba River as defined by the 

Feder a 1 Emergency Management Agency, or its 

successor; 

(iii) nondevelopable wetland defined or 

restricted by law or regulation so that buildings, 

structures, and other improvements are prohibited; 

(iv) park or recreational land 

accessible to the public and dedicated permanently 

to public use. 

(b) After completion of a comprehensive 

deve 1 opment p 1 an the Tribe may seek to have the 

permissible area of the Expanded Reservation 

enlarged to a maximum of three thousand, six 

hundred acres, plus up to six hundred acres of land 

as described in sub item (a). Expansion must be 

[608] 14 
910 

1 approved first , howev er, by the Secretary and then 

2 by ordinance of the county council governing the 

3 area where the additional lands are to be acquired 

4 and by a law or joint resolution enacted by the 

5 General Assembly and signed by the Governor of 

6 South Carolina. 

7 (2) Before placing a noncontiguous tract in 

8 Reservation statu s, the Tribe, in consultation with 

9 the Secretary, shall submit to the county council 

10 in a county where it proposes to purcha se 

11 noncontiguous tracts for Reservation status a 

12 Noncontiguous Development Plan Application . As 

13 used in this item 'application' is as described in 

14 the Settlement Agreement. 

15 (3) The Tribe shall present its application 

16 to the county council of each county in which the 

17 Secretary proposes to purchase noncontiguous tracts 

18 to be placed in Reservation status. The county 

19 council shall make findings on the extent to which 

20 the application has met the criteria set forth in 

21 the Settlement Agreement and recommend to the 

22 Governor whether or not the application should be 

23 approved. After receiving the county council's 

24 recommendation, the Tribe may modify its 

25 application and re submit it to the county council 

26 or present it to the Governor for approval. Giving 

27 due deference to the recommendation of the county 

28 council, the Governor shall review the application 

29 and decide whether to approve or disapprove it on 

30 the basis of the criteria set forth in the 

31 Settlement Agreement. Neither the county council's 

32 approval nor the Governor's approval may be 

33 withheld unreasonably . The Governor's final action 

34 must be accompanied by a written statement of 

3 5 reasons and is reviewable under the laws of the 

36 State. 

3 7 ( 4) Upon approv a 1 by the Governor of the 

38 Tribe's Application, the Secretary, in consultation 

39 with the Tribe, may proceed to place noncontiguous 

40 tracts in Reservation status in accordance with the 

41 application, this chapter, and the terms of the 

42 Settlement Agreement. 

43 (C) The Secretary and the Tribe shall endeavor 

44 at the outset to acquire contiguous tracts for the 

[608] 15 
911 

1 expanded Reservation in the area referred to in the 

2 Settlement Agreement as the 'Primary Expansion 

3 Zone'. The Primary Expansion Zone lies within the 

4 area bounded by S. C. Highway No. 5 on the south 

5 running northwesterly to its intersection with 

6 Springdale Road on the west and northeasterly to 

7 the Catawba River along Sturgis Road; east along 

8 the Catawba River to its confluence with Sugar 

9 Creek; north along Sugar Creek to its intersection 

10 with S. C. Highway No. S-29-41, Doby Bridge Road; 

11 with S. C. Highway S-29-41 to its intersection with 

12 U.S. Highway No. 521; with U.S. Highway No. 521 in 

13 a southerly direction to its intersection with S. 

14 C. Highway No. S-29-55, VanWyck Road, on the east; 

15 with S. C. Highway No. S-29-55 to its intersection 

16 with Twelve Mile Creek on the south; and with 

17 Twelve Mile Creek to S. C. Highway No. 5 on the 

18 south. This area is known as the 'Catawba 

19 Reservation Primary Expansion Zone.' 

20 (D) The Secretary, in consultation with the 

21 Tribe, may elect to purchase contiguous tracts in 

22 an alternative area described in the Settlement 

23 Agreement as the Secondary Expansion Zone, under 

24 the conditions provided in subsections (B)(2) and 

25 (3). The Secondary Expansion Zone consists of the 

26 area bounded by Sugar Creek on the west; the 

27 Catawba River on the south extending to the Norfolk 

28 Southern Railway trestle on the west; northerly 

29 with the railroad right-of-way to its intersection 

30 with S.C. S-46-329, Brickyard Road; east to S.C. 

31 S-46-41, Doby Bridge Road; easterly along S.C. 

32 S-46-41 to its intersection with Sugar Creek. ·This 

33 area is known as the 'Catawba Reservation Secondary 

34 Expansion Zone'. 

35 (E) The Primary and Secondary Expansion Zones in 

36 subsections (C) and (D) are the preferred and only 

37 approved zones for expansion of the Reservati on. 

38 However, after completing a comprehensive plan of 

39 development, the Tribe may propose different or 

40 additional expansion zones. The zone first must be 

41 approved by the Secretary, then by ordinance of the 

42 county council where the zone is located, and by 

43 law or joint resolution enacted by the General 

44 Assembly of South Carolina and signed by the 

[608] 16 
912 

1 Governor. The combined area of a 11 land 

2 acquisitions, including land in specially approved 

3 zones, may not exceed the limits imposed by this 

4 section. 

5 (F) Before the Tribe's comprehensive planning 

6 process, the South Carolina Department of Highways 

7 and Public Transportation shall consult with the 

8 Tribe about p 1 an ned and proposed major highways 

9 within the Primary and Secondary Expansion Zones in 

10 the manner described in the Settlement Agreement. 

11 (G) Before the Tribe's comprehensive planning 

12 process, the South Carolina Department of Health 

13 and Environmental Control shall consult with the 

14 Tribe about the location of future sewage treatment 

15 facilities that may serve the Primary and Secondary 

16 Expansion Zones in the manner described in the 

17 Settlement Agreement. The Tribe is responsible for 

18 the design, construction, operation, and 

19 maintenance of its own sewage collection system and 

20 for the cost of constructing an extension line and 

21 tap to the transmission line. The Tribe also is 

22 subject to fees for use of the treatment system and 

23 transmission line and subject to all regulations 

24 imposed on users of the system. The Department of 

25 Health and Environmental Control shall endeavor to 

26 ensure that the fees, charges, and rules are the 

27 same as those applied to municipal users of the 

28 system. If the Tribe is required to construct an 

29 extension line to connect with a transmission line, 

30 the Tribe may charge non-Reservation users along 

31 the extension line reasonable tap and user fees. 

32 (H) Except as provided in this subsection, the 

33 power of eminent domain must not be used by a 

34 governmental authority in acquiring parcels of land 

35 for the benefit of the Tribe, whether or not the 

36 parcels are to be part of the Reservation. All 

37 purchases may be made only from willing sellers by 

38 val untary conveyances, except if the ostensible 

39 owner agrees to the sa 1 e, the Secretary may use 

40 condemnation proceedings to perfect or clear title 

41 and to acquire any interests of putative defendants 

42 whose addresses are unknown or the interests of 

43 unborn heirs or persons subject to menta 1 

44 disability. For South Carolina income tax 

[608) 17 
913 

l purposes, the conveyance must be treated in the 

2 manner provided by Internal Revenue Code Section 

3 1033 if the federal implementing legislation 

4 provides for that treatment under federal law. 

5 Filing and recording fees, all documentary tax 

6 stamps, and other fees incident to the conveyance 

7 of real estate are payable in connection with the 

8 purchases regardless of whether the property is 

9 purchased by the Tribe or by the United States in 

10 trust for the Tribe. Real property taxes levied 

11 for the year of closing must be prorated and paid 

12 at closing, or if the amount of property taxes to 

13 be due then cannot be ca 1 cul a ted, property taxes 

14 must be estimated and escrowed at closing. 

15 (I) The purchase of land specially assessed as 

16 agri cultura 1 use property by York or Lancaster 

17 County shall not result in a rollback of property 

18 taxes if the property is placed by the Tribe in 

19 Reservation status within one year of the date of 

20 purchase. If spec i a 11 y assessed 1 and is acquired 

21 and not made part of the Reservation within one 

22 year, deferred or rollback taxes are due and 

23 payable without interest to the county treasurer. 

24 ( J) The acquisition of 1 ands for the expanded 

25 Reservati on may not extinguish easements or 

26 rights-of-way then encumbering the lands unless the 

27 Secretary or the Tribe enters into a written 

28 agreement with the .owners terminating the easements 

29 or rights-of-way. The Secretary, with the approval 

30 of the Tribe, has the power to grant or convey 

31 easements and rights-of-way for public roads, 

32 pub 1 i c utilities, and other pub 1 i c purposes over 

33 the Reservation. Unless the Tribe and the State 

34 agree upon a valuation formula for pnc1ng 

35 easements over the Reservati on, the Secretary is 

36 subject to proceedings for condemnation and eminent 

37 domain to acquire easements and rights-of-way for 

38 public purposes through the Reservation under the 

39 laws of South Carolina in circumstances where no 

40 other reasonable access is available. With the 

41 approval of the Tribe, the Secretary also may grant 

42 easements or rights-of-way over the Reservation for 

43 private purposes, and implied easements of 

(608] 18 
914 

1 necessity apply to all lands acquired by the Tribe, 

2 unless expressly excluded by the parties. 

3 (K) Only land made part of the Reservation is 

4 governed by the special jurisdictional provisions 

5 set forth in this chapter and in the federa 1 

6 implementing legislation. 

7 

8 

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IO 

II 

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44 

Section 27-I6-IOO. (A) The Tribe may acquire 

parcels of real estate outside the Reservation in 

the manner provided by the federal implementing 

legislation and the Settlement Agreement. These 

parcels must not be part of the Reservation, 

governed by the special jurisdictional provisions 

set forth in this chapter, or subject to other 

special attributes on account of their ownership by 

the Tribe as a corporate entity or by the Secretary 

as trustee for the Tribe, except as provided in 

this section. 

(1) If the ownership of the properties by the 

Secretary or the Tribe or a subentity of the Tribe 

removes the property from ad valorem taxation, 

payments must be made by the Tribe in lieu of 

taxation that are equi va 1 ent to the taxes that 

otherwise would be paid if the property were 

subject to levy. 

(2) The Tribe may lease, sell, mortgage, 

restrict, encumber, or otherwise dispose of 

non-Reservati on l a;tds in the same manner as other 

persons and entities under state law. The Tribe as 

landowner shall be subject to the same obligations 

and responsibilities as other persons and entities 

under state and local law, including local zoning 

and land use laws and regulations. 

(B) All non-Reservation properties and all 

activities conducted on the properties shall be 

subject to the laws, ordinances, taxes, and 

regulations of the State and its political 

subdivisions, except as specifically provided in 

this chapter and the federal implementing 

legislation. This general jurisdictional principle 

shall extend to non-Reservation properties held by 

the Tribe as a corporate entity and to properties 

held in trust by the United States designated as 

non-Reservation property when acquired. The laws, 

[608] I9 
915 

1 ordinances, taxes, and regulations of the State and 

2 its subdivisions shall apply to non-Reservation 

3 properties in the same manner as the laws, 

4 ordinances, taxes, and regulations apply to other 

5 properties held by non-Indians located in the same 

6 jurisdiction. 

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44 

Section 27-16-110. {A) Except as specifically 

provided in the federal implementing legislation 

and this chapter, all 1 aws, ordinances, and 

regulations of South Carolina and its political 

subdivisions govern the conduct of gambling or 

wager by the Tribe on and off the Reservation. 

(B) The State shall govern the conduct of bingo 

under Article 23, Chapter 21 of Title 12, 

Regulation of Bingo Games, including regulations or 

rulings issued in relation to that article, except 

as provided by the special bingo license to which 

the Tribe is entitled in accordance with this 

section if it elects to sponsor bingo games under 

the special license. 

( 1) For purposes of conducting the game of 

bingo, the Tribe is deemed a nonprofit organization 

under Article 23, Chapter 21 of Title 12. 

(2) If the Tribe elects to conduct the game 

of bingo either on or off the reservation, the 

Tribe shall obtain a license from the South 

Carolina Tax Commission. Based on the Tribe's 

election, the Tribe may be licensed by the South 

Carolina Tax Commission to conduct games of bingo 

under a regular license allowed nonprofit 

organizations or under the special 1 icense provided 

by this section. 

(C) The . Tribe may app 1 y to the South Caro 1 ina 

Tax Commission for a special bingo license in lieu 

of licenses authorized by Article 23, Chapter 21 of 

Title 12. A special or regular license must be 

granted if the Tribe complies with licensing 

requirements and procedures. The special license 

is identical in all respects to the class of 

license permitting the highest level of prizes 

allowed by law and carries the same privileges and 

duties as the class of 1 i cense permitting the 

highest level of prizes provided by law, except: 

[608] 20 
916 

1 ( 1) The frequency of the sessions mu st be 

2 determined by the Executive Committee but must be 

3 no more frequent than six sessions a week, with 

4 sessions on Sundays prohibited unless state law 

5 otherwise expressly allows Sunday sessions. 

6 (2) The amount of prizes offered each session 

7 must be determined by the Tribe, but must not be 

8 greater than one hundred thousand dollars for any 

9 game. 

10 (3) The Tribe shall pay, in lieu of an 

11 admission, a head, a license, or any other bingo 

12 tax, a special bingo tax equal to ten percent of 

13 the gross proceeds received during each session. 

14 No other federal, state, or local taxes apply to 

15 revenues generated by the bingo games operated by 

16 the Tribe. All revenues derived from the special 

17 bingo tax must be collected by the South Carolina 

18 Tax Commission and deposited with the State 

19 Treasurer for the benefit of the Genera 1 Fund of 

20 South Carolina. 

21 (4) At least fifty percent of the gross 

22 proceeds received by the Tribe during a calendar 

23 quarter must·be returned to the players in the form 

24 of prizes. For purposes of this section, 'gross 

25 proceeds' does not include the ten percent special 

26 bingo tax. 

27 (5) The Tribe is entitled to two bingo 

28 licenses, and these licenses may be used to operate 

29 at two locations only. They are not assignable to 

30 any other entity or individual. 

31 (6) The net proceeds derived by the Tribe 

32 from the conduct of bingo may be used for any 

33 purpose authorized by the Tribe. 

34 (D) The Tribe may elect to operate one of the 

35 games under a special bingo license off the 

36 Reservati on and not within the one hundred 

37 forty-four thousand acre Catawba Claim Area, but 

38 before doing so, it first must obtain the approval 

39 of the governing authority of the county and any 

40 municipality in which it seeks to locate the 

41 facility. If the Tribe elects to operate one or 

42 both of the games off the Reservation but within 

43 the one hundred forty-four thousand acre Catawba 

44 Claim Area, it shall do so in an area zoned 

[608] 21 
917 

1 compatibly for commercial activities after 

2 consulting with the municipality or county where a 

3 facility is to be located. 

4 (E) The sponsor and promoter of the bingo games 

5 is the Catawba Indian Tribe, and all profits gained 

6 from the enterprise accrue to the Tribe. The South 

7 Carolina Tax Commission, or its regulatory 

8 successor, has the power to administer, oversee, 

9 and regulate all bingo games sponsored and 

10 conducted by the Tribe, audit and enforce the 

11 operation of the games, and assess and collect 

12 taxes, interest, and penalties in accordance with 

13 the laws and regulations of the State as they apply 

14 to the Tribe. The South Carolina Tax Commission, 

15 or its regula tory successor, has the right to 

16 suspend or revoke the Tribe's bingo license or 

17 special bingo license if the Tribe violates the law 

18 with regard to conducting the game. However, the 

19 Tax Commission, or its regulatory successor, first 

20 shall notify the Tribe of violations and provide 

21 the Tribe with an opportunity to correct the 

22 violations before its license may be revoked. 

23 Failure to pay bingo taxes, interest, or penalties 

24 may be grounds for license revocation. 

25 (F) A license of the Tribe to conduct bingo must 

26 be revoked if the game of bingo is no l anger 

27 licensed by the State. If the State resumes 

28 licensing the game of bingo, the Tribe's license or 

29 special license must be reinstated if the Tribe 

30 complies with all licensing requirements and 

31 procedures. 

32 (G) The Tribe may permit on its Reservati on 

33 video poker or similar electronic play devices to 

34 the same extent that the devices are authorized by 

35 state law. The Tribe is subject to all taxes, 

36 license requirements, regulations, and fees 

37 governing electronic play devices provided by state 

38 law, except if the reservati on is located in a 

39 county or counties which prohibit the devices 

40 pursuant to state law, the Tribe nonetheless must 

41 be permitted to operate the devices on the 

42 Reservation if the governing bod~ of the Tribe so 

43 authorizes, subject to all taxes, license 

[608] 22 
918 

1 requirements, regulations, and fees governing 

2 electronic play devices provided by state law. 

3 (H) If the Tribe elects to sponsor and conduct 

4 games of bingo under a regular 1 i cense a 11 owed 

5 nonprofit organizations under Article 23, Chapter 

6 21 of Title 12, the Tribe must be taxed as a 

7 nonprofit corporation under that article. 

8 

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43 

Section 27-16-120. {A) The Tribe shall 

incorporate by reference and adopt the York County 

Building Code and may contract with York County for 

the services necessary to enforce, inspect, and 

regulate compliance with its code. The services 

must be provided at no charge by York County as an 

in-kind contribution toward settlement. In 

addition, those local jurisdictions which exact a 

fee, a permit, or ihspection services shall waive 

the fees otherwise charged for building permit or 

inspection services on the Reservation. The Tribe 

is empowered, but not required, to adopt building 

code provisions to be applied on the Reservation in 

addition to, but not in derogation of, the York 

County Building Code. 

{B) All state and local environmental laws and 

regulations apply to the Tribe and to the 

Reservation and are fully enforceable by all 

relevant state and local agencies and authorities. 

Similarly, all requirements that a license, permit, 

or certificate be obtained from a state or local 

agency also apply to the Tribe and to the 

Reservation. This prov1s1on extends without 

limitation to all environmental laws and 

regulations adopted in the future. 

(1) The Tribe, the Executive Committee, and 

all members of the Tribe have the same status as 

other citizens or groups of citizens to contest, 

object to, or intervene in a proceeding or an 

action in which environmental regulations are being 

made, adjudicated, or enforced or in which 

licenses, permits, or certificates of convenience 

and necessity are being issued by an agency of the 

State or a local government and no special or 

preferential status under any laws. 

[608] 23 
919 

1 ( 2) The Tribe ha s the auth ority to impose 

2 regulations applying higher environmental standards 

3 to the Reservation than those imposed by state law 

4 or by local governing bodies. However, tribal 

5 regulations apply only to the Reservation and not 

6 to property surrounding the Reservati on or 

7 non-Reservation property or to the use of the 

8 Catawba River . Tribal regulations also do not 

9 apply to activities or uses off the Reservation, 

10 even if those activities affect air quality on the 

11 Reservation. 

12 (3) The Tribe is not authorized to invoke 

13 sovereign immunity against a suit, a proceeding, or 

14 an enforcement action involving state or local 

15 environmental laws or regulations and is subject to 

16 all enforcement orders, restraining orders, fees, 

17 fines, injunctions, judgments, and other corrective 

18 or remedial measures imposed by the laws. This 

19 section does not impose different standards or 

20 requirements on the Tribe or the Secretary, when 

21 acting on the Tribe's behalf, than would be applied 

22 to a private corporation. 

23 (C) With respect to a land use regulation within 

24 the Reservation, the Tribe has the power to adopt 

25 and enforce a land use plan after consultation with 

26 York and Lancaster Counties for those parts of the 

27 Reservation located in those respective 

28 jurisdictions. The Tribe and the affected 

29 governing bodies shall follow the substantive 

30 considerations and consultative procedures 

31 described in the Settlement Agreement. 

32 (D) All public health codes of South Carolina 

33 and any county in which the Reservation is located 

34 are applicable on the Reservation. 

35 (E) Hunting and fishing, on or off the 

36 Reservation, must be conducted in compliance with 

37 the laws and regulations of South Carolina. 

38 Members of the Tribe are subject to all state and 

39 local regulations governing hunting and fishing on 

40 and off the Reservation. However, for ninety-nine 

41 years following the effective date of this chapter, 

42 members of the Tribe are entitled to personal state 

43 hunting and fishing licenses without payment of 

44 fees . The Tribe and its members are subject to the 

[608] 24 
920 

1 same fees and requirements as all other citizens of 

2 the State in applying for and obtaining commercial 

3 hunting and fishing licenses. The Tribe has the 

4 authority to impose hunting, fishing, and wildlife 

5 rules and regulations on the Reservation that are 

6 stricter than those adopted by the State. 

7 (F) The 1 it tor a 1 and riparian rights of the 

8 Catawba Indian Tribe in the Catawba River or in 

9 other streams or waters crossing their lands do not 

10 differ in any respect from the rights of other 

11 owners whose land abuts nontidal bodies of water or 

12 nontidal water courses in South Carolina. The 

13 rights and obligations covered by this subsection 

14 include, but are not limited to, those described in 

15 the Settlement Agreement. These qualifications 

16 apply to the Existing Reservation, lands acquired 

17 for the Expanded Reservation, other lands acquired 

18 by or for the benefit of the Tribe, and 

19 non-Reservation lands. 

20 (G) Alcohol is prohibited on the Reservation 

21 unless the Tribe adopts laws or ordinances 

22 permitting the sale, possession, or consumption of 

23 alcohol on the Reservation. If the Tribe adopts 

24 the laws or ordinances, they must incorporate all 

25 state standards and regulations regarding hours, 

26 sales to minors, employment, consumption, 

27 possession, and standards for licensing. However, 

28 the Tribe may impose stricter standards and 

29 regulations than those prescribed by state law. If 

30 beer, wine, and alcoholic liquor are sold on the 

31 Reservation, licenses must be issued by the State 

32 in accordance with South Carol ina law, and all 

33 beer, wine, and alcoholic liquor taxes must be paid 

34 to the State in accordance with South Carolina law. 

35 

36 

37 

38 

39 

40 

41 

42 

43 

44 

Section 27-16-130. (A) The Tribe, its members, 

the Tribal Trust Funds, and other persons or 

entities affiliated with or owned by the Tribe, 

members of the Tribe, or the Tribal Trust Funds, 

whether a resident, located, or doing business on 

or off the Reservation, are subject to all state 

and local taxes, sales taxes, real and personal 

property taxes, excise taxes, estate taxes, and all 

other taxes, licenses, levies, and fees, except as 

(608] 25 
921 

1 expressly provided in this section or the federal 

2 implementing legislation. Any other person or 

3 business entity which locates, operates, or does 

4 business on the Reservation is subject without 

5 exception to all state and local taxes, licenses, 

6 and fees, unless otherwise expressly provided in 

7 this chapter. To the extent the Tribe may be 

8 subject to taxes under this section, the Tribe must 

9 be taxed as if it were a business corporation 

10 incorporated under the laws of South Carolina 

11 unless otherwise expressly provided. 

12 (B) If the Tribe elects to sponsor and conduct 

13 games of bingo under the special bingo licenses 

14 under Section 27-16-110, (C) the gross revenues 

15 generated by the bingo games must be subject to the 

16 ten percent tax levy specified in that section 

17 exclusively, and no other federal, state, or local 

18 taxes apply to revenues generated by the bingo 

19 games which are received by the Tribe. 

20 (C) (1) Income of the Tribe, subdivisions and 

21 governmental agencies of the Tribe, including 

22 entities owned by the Tribe or the federal 

23 government on behalf of the Tribe, the Tribal Trust 

24 funds, and tax revenues collected by the Tribe by 

25 levy or assessment which are nontaxable for federal 

26 income tax purposes because of the Tribe's status 

27 as a recognized or restored Indian tribe also are 

28 nontaxable for purposes of state income taxes or 

29 local income taxes. 

30 (2) Members of the Tribe are liable for 

31 payment of state and local income taxes to the same 

32 extent as any other person in the State, except 

33 income earned by members of the Tribe for work 

34 performing -governmental funcdons solely on the 

35 Reservation is exempt for ninety-nine years from 

36 the effective date of this chapter. Income earned 

37 by members of the Tribe from the sale of Catawba 

38 Indian pottery and artifacts, on or off the 

39 Reservation, which are made by members of the Tribe 

40 are exempt from state and local income taxes. No 

41 funds distributed pursuant to the · Per Capita 

42 Payment Trust Fund created by the federal 

43 implementing legislation are subject at the time of 

44 distribution to state or local income taxes. 

[608] 26 
922 

l However, income subsequently earned on shares 

2 distributed to members of the Tribe is subject to 

3 the same state and local income taxes as other 

4 persons in the State pay. 

5 (3) A person or other entity not exempt from 

6 income taxes under items (1) and (2) are liable for 

7 all federal, state, and local income taxes 

8 otherwise due regardless of whether or not they are 

9 doing business on the Reservation. 

10 (D) (1) All lands held in trust by the United 

11 States for the Tribe as part of the Reservation, 

12 all nonresidential buildings, fixtures, and real 

13 property improvements owned by the Tribe or held in 

14 trust by the United States for the Tribe on the 

15 Reservation are exempt from all property taxes 

16 levied by the State, a county, a school district, 

17 and a special purpose district. If the Tribe owns 

18 a partial interest in property or a business, the 

19 property tax exemption provided in this section is 

20 applicable to the extent of the Tribe's interest. 

21 (2) (a) Single and multi-family residences, 

22 including mobile homes, situated on the Reservation 

23 are exempt from all property taxes levied by the 

24 State, a county, a schoril district, and a ~pecial 

25 purpose district if all the following apply: 26 (i) They are owned by the Tribe, members 

27 of the Tribe, or Tribal Trust Funds. 

28 (ii) For single family residences, if 

29 they are occupied by a member of the Tribe or the 

30 surviving spouse of a deceased member of the Tribe. 

31 (iii) For multifamily residences: 

32 (a). If the property is va 1 ued on a per 33 unit basis, those units which are occupied by a 

34 member of the Tribe or the surviving spouse of a 

35 deceased member or are unoccupied are exempt from 

36 property taxes. All other occupied units are 

37 subject to property taxes to the same extent that 

38 similar property is assessed and taxed elsewhere in 

39 the same jurisdiction. Occupancy is determined on 

40 the assessment date for the property. 

41 (b). If the property is not valued on 

42 a per unit basis, the property is exempt from 

43 property taxes based on the percentage of units 

44 which are occupied by a member of the Tribe or the 

[608] 27 
923 

1 surv1v1ng spouse of a deceased member of the Tribe, 

2 and the property is subject to property taxes to 

3 the same extent that similar property is assessed 

4 and taxed elsewhere in the same jurisdiction based 

5 on the percentage of units not so occupied. In 

6 calculating the value, unoccupied units must not be 

7 considered. Occupancy is determined on the 

8 assessment date for the property. 

9 (iv) Rental property constructed by the 

10 Tribe on the reservation through an Indian Housing 

11 Authority which is financed by HUD is exempt from 

12 all property taxes. In lieu of the taxes, the 

13 authority may agree to make payments to the county 

14 or a political subdivision for improvements, 

15 services, and facilities furnished by the county or 

16 political subdivision for the benefit of the 

17 housing project. However, the payments may not 

18 exceed the estimated cost to the county or 

19 political subdivision of the improvements, 

20 services, or facilities furnished. 

21 (c) For purposes of this section, residential 

22 property is deemed to be owned by a member of the 

23 Tribe if the member or the surviving spouse of a 

24 member owns at least a one-half undivided interest 

25 in the property, and a unit is deemed occupied by 

26 members of the Tribe if at least one member or the 

27 surviving spouse of a member is living in the 

28 single-family residence or in a unit of a 

29 multi-family residence. 

30 (3) All buildings, fixtures, and real 

31 property improvements located on the Reservation 

32 which are not exempt from real property taxes under 

33 items (1) or (2) are subject to all property taxes 

34 levied by the State, a county, a school district, 

35 a special purpose district, and any other political 

36 subdivision to the same extent that similar 

37 buildings, fixtures, or improvements are assessed 

38 and taxed elsewhere in the same jurisdiction. 

39 However, the underlying land or leasehold in the 

40 1 and is not subject to rea 1 property taxes. A 11 

41 buildings, fixtures, and improvements subject to 

42 real property taxes are eligible for a tax 

43 abatement or temporary exemption allowed new 

44 business investments to the same extent as similar 

[608] 28 
924 

1 properties qua 1 i fy for exemption or abatement in 

2 the same county. 

3 (4) The Tribe is authorized to levy taxes on 

4 buildings, fixtures, improvements, and personal 

5 property located on the Reservation, even though 

6 the properties may be exempt from property taxation 

7 by the State or its subdivisions, and may use the 

8 tax revenues for appropriate tribal purposes. The 

9 Tribe also may exempt or abate the taxes. York and 

10 Lancaster Counties and the South Carolina Tax 

11 Commission shall provide the necessary assistance 

12 to the Tribe if the Tribe chooses to assess tribal 

13 real property taxes as if they were property taxes 

14 imposed by a political subdivision. 

15 (5) Real property and improvements owned by 

16 the Tribe or by members of the Tribe, or both, and 

17 not located on the Reservation are subject to all 

18 property taxes levied by the State, the county, the 

19 school district, special purpose districts, and any 

20 other political subdivisions where the property is 

21 1 ocated. 

22 (6) To the extent that any non-Reservation 

23 real property held in trust by the Secretary is not 

24 taxable for property tax purposes, it is subject to 

25 the payment of a fee or fees by the Tribe in an 

26 amount equivalent to the real property tax that 

27 would have been paid to the applicable taxing 

28 authority if the property had not been he 1 d in 

29 trust. 

30 (E) ( 1) A 11 persona 1 property owned by the 

31 Tribe during ninety-nine years from the effective 

32 date of this chapter and used solely on the 

33 Reservation is exempt from personal property taxes 

34 levied by the State, a county, a school district, 

35 a special purpose district, and any other political 

36 subdivision. However, motor vehicles owned by the 

37 Tribe during the ninety-nine-year period are exempt 

38 from personal property taxes even if used off the 

39 Reservation. 

40 (2) All personal property owned by members of 

41 the Tribe is subject to personal property taxes 

42 levied by the State, a county, a school district, 

43 a special purpose district, and any other political 

[608] 29 
925 

l subdivis io ns wh ere the property is de emed to be 

2 located. 

3 ( 3) All personal property located on the 

4 Reservation which is not exempt from personal 

5 property taxes under i tern ( 1) is subject to 

6 personal property taxes levied by the State, a 

7 county , a school district , a special purpose 

8 district , and any other political subdivision 

9 encompassing the Reservation to the same extent 

10 that similar personal property is assessed and 

11 taxed elsewhere in the jurisdiction. 

12 (4) For purposes of subsection (D) and this 

13 subsection, the determination of whether the Tribe 

14 is the owner of property must be made in the same 

15 manner as for other taxpayers for South Carol ina 

16 property tax purposes. 

17 (F) Subject to perfected security interests, if 

18 a taxpayer subject to property taxes under 

19 subsections (D) and (E) fails to pay the taxes, the 

20 appropriate taxing authority for the county or 

21 other political subdivision has the power to levy 

22 against personal property subject to personal 

23 property taxes owned by the taxpayer within the 

24 county, on or off the Reservati on, in order to 

25 satisfy the taxes due. 

26 (1) If this levy against the personal 

27 property is not sufficient to satisfy the tax lien, 

28 the county or other political subdivision may 

29 certify the deficiency to the State, and the State 

30 shall levy against other taxable property of the 

31 taxpayer in the State and remit proceeds to the 

32 county or appropriate taxing authority which is 

33 owed the tax. 

34 (2) If the county or other political 

35 subdivision cannot satisfy its lien, the county or 

36 appropriate taxing authority may require the Tribe 

3 7 to cease a 11 owing the taxpayer to do business on 

38 the Reservation. 

39 (3) If the taxpayer is in bankruptcy, the 

40 bankruptcy statutes apply to this section. 

41 (4) The State or any political subdivision 

42 may not seize rea 1 property located on the 

43 Reservation. 

[608] 30 
926 

1 (G) The Tribe and its members are subject to all 

2 license and registration fees and requirements, all 

3 periodic inspection fees and requirements, and all 

4 fuel taxes imposed by the State and local 

5 governments on motor vehicles, boats, airplanes, 

6 and other means of conveyance. 

7 (H) The Tribe, its members, and the Tribal Trust 

8 Funds are liable for the payment of all state and 

9 local sales and use taxes to the same extent as any 

10 other person or entity in the State, except as 

11 specifically provided as follows: 

12 (1) Purchases made by the Tribe for tribal 

13 government functions during ninety-nine years from 

14 the effective date of this chapter are exempt from 

15 state and local sales and use taxes. 

16 ( 2) Catawba pottery and art if acts made by 

17 members of the Tribe and so 1 d on or off the 

18 Reservation by the Tribe or members of the Tribe 

19 are exempt from state and local sales and use tax. 

20 (3) During ninety-nine years from the 

21 effective date of this chapter, the sale on the 

22 Reservation of all other items, made on or off the 

23 Reservation, are exempt from state and local sales 

24 and use taxes but are subject to a special tribal 

25 sales tax levied by the Tribe equal to the state 

26 and local sales tax that would be levied in the 

27 jurisdiction encompassing the Reservation but for 

28 this exemption. 

29 (a) The South Caro 1 ina sa 1 es and use tax 

30 laws, regulations, and rulings apply to the special 

31 tribal sales tax, and the special tribal sales tax 

32 must be administered and collected by the South 

33 Carolina Tax Commission. 

34 (b) The South Carolina Tax Commission 

35 separately shall account for the special tribal 

36 sales tax, and the State Treasurer shall remit the 

37 special tribal sales tax revenues periodically to 

38 the Tribe at no cost to the Tribe. 

39 (c) The tribal sales tax does not apply to 

40 retail sales occurring on the Reservation as a 

41 result of delivery from outside the Reservation 

42 when the gross proceeds of sale are one hundred 

43 dollars or less. If it does not apply, the state 

44 sales tax applies. 

[608] 31 
927 

l (d) The Tribe shall impose a tribal use tax 

2 on the storage, use , or other consumption on the 

3 Rese rvation of tangible personal property purchased 

4 at retail outside the State when the vendor does 

5 not collect the tax. However, use taxes collected 

6 by a vendor which is not located in the State are 

7 subject to state use taxes, and the use tax must be 

8 remitted to the State and not the Tribe. Use taxes 

9 not collected by the vendor and remitted to the 

10 State are subject to the tribal · use tax and must be 

11 collected directly by the Tribe . 12 (I) The Tribe shall pay a fee in lieu of school 

13 taxes. That fee must be determined by the school 

14 district in the same manner and must be the same 

15 amount paid by students from outside the county 

16 entering schools in the county. 

17 (1) The fee payab 1 e by the Tribe must be 

18 reduced by funds received by the government for 

19 Impact Aid under Sections 20 U.S.C . 236 et seq. or 

20 other federal funds designed to compensate school 

21 districts for 1 oss of revenue due to the 

22 nontaxability of Indian property. 

23 (2) A fee paid on behalf of a child under 

24 this section must be excluded from state income of 

25 the child or his family for state income tax 

26 

27 

28 

29 

30 

31 

32 

33 

34 

35 

36 

37 

38 

39 

40 

41 

42 

43 

44 

purposes. 

(J) Members of the Tribe are liable for payment 

of a 11 estate and inheritance taxes, except the 

undistributed share of a member in the Per Capita 

Payment Trust Fund established by the federal 

implementing legislation and the Settlement 

Agreement are exempt from state estate and 

inheritance taxes. 

( K) The Indian Tri ba 1 Government Tax Status Act, 

26 U.S.C. Section 7871, applies to the Tribe and 

its Reservation for South Carolina income tax 

purposes to the same extent as provided in the 

federal implementing legislation. 

Section 27-16 - 140. (A) The prov1s1ons of a 

federal law enacted after the date of enactment of 

the federal law implementing this agreement shall 

not apply in the State if the provision materially 

affects or preempts the application of the laws of 

[608] 32 
928 

I the State, including application of the laws of the 

2 State to lands owned by or held in trust for 

3 Indians, Indian Nations, Indian tribes, or bands of 

4 Indians. However, the federal law shall apply 

5 within the State if the State grants its approval 

6 by a law or joint resolution enacted by the General 

7 Assembly of South Carolina and signed by the 

8 Governor. 

9 (B) If the entire federal implementing 

10 legislation is rendered invalid by a court, this 

11 chapter is invalid. 

12 (C) Whenever possible, this chapter must be 

13 construed in a manner consistent with the 

14 Settlement Agreement. If there is a conflict 

15 between this chapter and the Settlement Agreement, 

16 this chapter governs. The Settlement Agreement 

17 must be maintained on file and available for public 

18 inspection in the Office of the Secretary of State 

19 and in the offices of the Clerks of Court for York 

20 and Lancaster Counties. Copies must be made 

21 available upon request upon the payment of 

22 reasonable and normal copying fees." 

23 

24 

25 

26 

27 

28 

29 

30 

31 

32 

33 

34 

SECTION 2. This act takes effect when the 

Governor certifies that the Counties of York and 

Lancaster have taken all actions required of them 

by the Settlement Agreement. However, the Governor 

may not make the certification until the Congress 

of the United States has passed and the President 

of the United States has signed into law federal 

implementing legislation which he also certifies as 

consistent with the Settlement Agreement. 

-----XX-----

[608] 33 
929 

1 INTRODUCED 

2 April 29, 1993 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

s. 695 

Introduced by SENATORS Hayes, Gregory, 

Short, J. Verne Smith and Drummond 

S. Printed 4/29/93--H. 

Read the first time April 29, 1993. 

Peeler, 

STATEMENT OF ESTIMATED FISCAL IMPACT 

15 1. 

16 2. 

17 

Estimated Cost to State-First Year Ss~ below 

Estimated Cost to State-Annually 

Thereafter Ss~ below 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

32 

33 

34 

35 

36 

37 

38 

39 

40 

41 

42 

43 

44 

Senate Bill 695 is a Joint Resolution that 

provides for payment of the Catawba Indian Land 

Settlement Claim. The bill provides for transfer 

from the Insurance Reserve Fund of $12.5 million to 

the General Fund of the State. This transfer would 

take place during the current fiscal year and must 

be held by the State Treasurer in a special account 

to be paid out in five annual installments to the 

Secretary of the United States Department of the 

Interior. Interest on the money held in the 

special account is to be credited to the General 

Fund . After final payment of the claim, a total of 

five payments of $2.5 million must be transferred 

from the Genera 1 Fund to the Insurance Reserve 

Fund. 

The primary impact to the Insurance Reserve Fund 

would be approximately $3,125,000 ($12.5 million x 

5% x 5 years). An additional $1.2 million- $1.6 

million in interest loss would be realized by the 

Insurance Reserve Fund during payback, depending on 

the payback schedule. According to Insurance 

Reserve Fund officials, this loss of interest could 

be significant enough to cause insurance premium 

adjustments to all who participate in the Insurance 

Reserve Fund which includes state agencies, school 

d i st ri cts, and 1 oca 1 governments until such 

[695-1] 
930 

1 payments are made to the Insurance Reserve Fund. 

2 Further, the earnings on interest to the General 

3 Fund would not equal to the loss to the Insurance 

4 Reserve Fund because of the payout schedule and the 

5 potential for pooled investments. 

6 This is a preliminary impact estimate. The 

7 Insurance Reserve Fund actuary is in the process of 

8 determining actual impact on the premium structure. 

9 

10 

11 

12 

13 

Prepared By: 

K. Earle Powell 

State Budget Analyst 

[695-2] 

Approved By: 

George N. Oorn, Jr. 

State Budget Division 
l 

2 

3 

4 

5 

6 

7 

8 

9 

10 

931 

A JOINT RESOLUTION 

11 TO PROVIDE FOR PAYMENT OF THE CATAWBA INDIAN LAND 

12 SETTLEMENT CLAIM. 

13 

14 Be it enacted by the General Assembly of the State 

15 of South Carolina: 

16 

17 SECTION 1. There is transferred from the 

18 Insurance Reserve Fund two and one-half mill ion 

19 do 11 ars to the Genera 1 Fund of the State for the 

20 current fiscal year which must be held by the State 

21 Treasurer in a spec i a 1 account and paid to the 

22 Secretary of the United States Department of the 

23 Interior for a portion of the sett 1 ement of the 

24 Catawba Indian Land Claim. Interest earned on 

25 monies held in the special account is credited to 

26 the Insurance Reserve Fund. Each fiscal year for 

27 a total of five years beginning after the payment 

28 provided in this section, five hundred thousand 

29 dollars plus interest must be transferred from the 

30 genera 1 fund to the Insurance Reserve Fund. The 

31 interest paid to the Insurance Reserve Fund must be 

32 charged from the date of the payment provided in 

33 this section at a rate determined by the State 

34 Treasurer. 35 

36 SECTION 2. This act takes effect upon approval 

37 by the Governor. 

38 -----XX-----

[695] 1 
Jay Bender 

Attorney At Law 

P.O. Box 1927 

Columbia, SC 29202-9571 

932 
TO: 

933 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF SOUTH CAROLINA 

Rock Hill Division 

Civil Action No. 0· 

!f.JAplJi ... SOUTH CAROLINA, 

a wnasthe 

CATAWBA INDIAN N TION OF SOUTH CAROLINA, 

Plaintiff, v. 

Defendants. 

The enclosed Summons, Complaint, Answers to Local Rule 7.05 Interrogatories, Lis 

Pendens and Order of August 13,1992 are served pursuant to Rule 4(c)(2)(C)(ii) of the Federal 

Rules of Civil Procedure. 

You must complete the acknowledgement part of this form and return one copy of the 

completed form to the sender. The completed form must be received by the sender no later 

than 20 days from the postmarked date of this notice. 

If you are served on behalf of a corporation, unincorporated E' on (including a 

partnership), or other entity, you must indicate under~ your relationship to that 

entity. If you are served on behalf of another pe~e~ ·zed to receive process, 

you must indicate under your siguature lttl ('-

You must sign, print your namt\~ a now!edgetnent. 

If you do not complete and return the form to the sender within 20 days, you (or the 

party on whose behalf you are being served) may be required to pay any expenses incurred in 

serving a summons and complaint in any manner permitted by Jaw. 

If you do complete and return this form, you (or the party on whose behalf you are 

being served) must answer the Complaint by September 2, 1993. If you fail to do so, judgment 

by default will be taken against you for the relief demanded in the Complaint. 

The Catawba Claim Committee of the York County Bar Association has established 
934 

the Catawba Litigation Center at 12.3 Elk Ave., Rock Hill, to answer your questions and to 

assist you in procuring counsel in regards to this lawsuit. You may call the center at 

(803) 325-1600 or the South Carolina Bar's referral service at 1-800-868-2284. 

·~ ,,_y . .D. No. 1294 

", .,;BA.Kn; BARWICK, 

. '-IW\ VENEL AND BENDER 

December 31 1992 

Date of Signature 

ACKNOWLEDGEMENT OF RECEIPT OF 

SUMMONS, COMPLAINT, ANSWERS TO LOCAL RULE 7.05 INTERROGATORIES, 

LIS PENDENS AND ORDER OF AUGUST 13,1992 

I declare, under penalty of perjury, that I received a copy oftbe summons, tbe 

complaint, the lis pendens, answers to local rule 7.05 \..~ogatories and order of 

August 13, 1992 in the above- captioned manner ~ ~ ~ 

Place:------------------~~\5~~~------

Signature 

Print Name 

Relationship to Entity/Authority 

to Receive Service of Process 

Date of Signature 
935 

CATAWBAINDIANTRIBEOFSOUTHCAROLINA, 

also known as the SUMMONS IN A CIVIL ACTION 

CATAWBAINDIANNATIONOFSOUTH-cAROLINA, CASE NUMBER: 

v. Plaintiff, 0:92-2450 

(See reverse side for Tax Map No.), et a!.,• 

TO: 

YOU ARE HEREBY SUMMONED and required to tile....,~e Clerk ot this Court and serve· upon 

MM~H~ JoyO.ruJ.,,IJJ,N~ \~ BAKER, BARWI~ L lNn BENDER 

P.O.Box1 

1308 a t 

Col 2-9571 

soan 

an answer to the complaint which is herewith served upon you, within twenty ( 20) days after 

service of this summons upon you, exclusive of the day of service. If you fail to do so, 

judgement by default will be taken against you for the relief demanded in the complaint. 

• A complete list ofdefeadants is maiataiaed by the Office of the Clerk of Court, 

U.S. District Court for the District of South Carolina. 

September 2, 1992 

DATE 

Y039878 
936 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF SOUTH CAROLINA 

Rock Hill Division 

Civil Action No. 0:92-2450 

COMPLAINT 

CATAWBA INDIAN TRIBE OF SOUTH CAROLINA, 

also known as the 

CATAWBA INDIAN NATION OF SOUTH CAROLINA, 

Defendants. 

• A complete list of defendant~ is maintained by the Oflice of the Clerk of Court, U.S. District Court £or the District of South Carolina. 

Y039876 
937 

NATURE OF THE ACTION 

1. This is a civil action seeking a declaration of the ownership and right of 

possession of the Catawba Indian Tribe to the lands within its 1763 Treaty reservation in 

York, Lancaster and Chester Counties, South Carolina, which lands are or have been 

subject to restrictions against alienation under federal law. The Cata···ba Tribe also 

seeks to be restored to possession of its reservation lands and seeks historic trespass 

damages for the period of its dispossession. 

JURISDICTION 

2. 

1362. 

The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 1331, 1337 and 

3. Plaintiff's claims for relief arise under the 1760 Treaty of Pine Tree Hill; the 

Proclamation of October 7, 1763; the November 10, 1763 Treaty of Augusta, Article I 

sections 8 and 10 and Article VI ofthe United States Constitution; the federal common 

law; and the Indian Nonintercourse Act, 25 U.S.C. § 177. 

DESCRIPTlON OF THE SUBJECT LAND 

4. From time immemorial to the time of the acts complained of herein, the 

Catawba Tribe owned and occupied a tract of land roughly 15 miles square, or 144,000 

acres, which land was surveyed and set aside for their exclusive use and occupancy 

pursuant to two treaties with the British Crown in 1760 and 1763. The reservation was 

surveyed by Samuel Wyly and a copy of his map of the reservation, dated February 22, 

1764, is annexed hereto as Exhibit A. The boundary of the reservation begins at the 

confluence·ofTwelve Mile Creek and the Catawba River and continues along Twelve 

Mile Creek in a northeasterly direction to the point where Twelve Mile Creek intersects 

the present boundary between North and South Carolin~there, the reservation 

b'"ndory folio~ tb• boundory betwoon North·~~ rna to the northwest 

approximately fifteen miles and then to the i1 s gle of90 degrees, 

approximately seven and one- half mil iver. From there, the boundary 

between the states separates from · oundary, the reservation boundary 

continuing in a straight lin additional seven and one- half miles to a 

point west of the present cit 

continues at an angle of90 de es in a straight lirie to the southeast for a distance of 

approximately fifteen miles to a point south of the City of Rock Hill and thence in a 

northeasterly direction to the point of origin at the confluence of the Catawba River and 

Twelve Mile Creek. Exempted from the subject lands are the lands described in 

Paragraphs 16, 17 and 18 of this Complaint and any lands that are subject to Plaintiff's 

claim in Civil Action No. 80-2050, filed October 28, 1980 in the United States District 

Court for the District of South Carolina. 

5. Plaintiff Catawba Indian Tribe of South Carolina is a tribe oflndians which has 

resided on lands currently within the State of South Carolina since time immemorial. The 

1 
938 

Tribe presently resides on approximately 630 acres outside the City of Rock Hill, South 

Carolina, which lands are held in beneficial trust for the Tribe by the State of South 

Carolina. Plaintiff Catawba Indian Tribe was signatory to the Treaty of Pine Tree Hill 

in 1760 and the Treaty of Augusta in 1763. 

6. Plaintiff is informed and believes that the defendants, and each of them, claim an 

interest in and title to certain of the lands which are the subject matter of this litigation, 

which lands are identified in the caption byTa:r Map Number and incorporated herein 

by reference, and may claim some right, qtle and/or interest in or lien upon other of the 

subject lands. 

7. Any defendant who claims any portion of the subject land purporting to act as an 

officer of the State of South Carolina, does so in excess of such defendant's authority as 

an officer of the State of South Carolina and in violation of25 U.S.C. § 177, Article I, 

sections 8 and 10, and Article VI of the Constitution of the United States, and the 

federal common law. 

8. The defendants John Doe and Richard Roe are fictitious names used to 

represent and designate any interested parties, but whose names are unknown to the 

Plaintiff, including any person or persons who claim to have any right, title, estate or 

interest in or lien upon the real estate described in paragraph 4, any heirs or devisees of 

any defendants, known or unknown , who may now be deceased and all minors, persons in 

the military forces, insane persons and all other persons under any other disability who 

may claim any right, title, estate or interest in or lien upon the real property described in 

the complaint herein. 

FACTS OF THE CLAIM 

9. In 1760, the Honorable Edmund Atkin, Esq., His Maj~ty the King of England's 

Agent to and Superintendent for Indian Affairs in the Sout~.p. istrict of North 

America, negotiated a Treaty with the Catawba Ind~·a ~ eby the Catawba 

Nation agreed to surrender its claims to a trac~en . ands within a 30 mile 

radius of the Catawba towns, which tract ha~ i d as Catawba Indian 

settled on a tract ofland fifteen mile was to be surveyed to prevent 

Country by the Colony of South Carolin~· eing permanently and quietly 

intruders and upon which a fort~~ for the Catawba's protection. This treaty 

is known as the Treaty of Pine Tr~'\J 

10. On October 7, 1763, King George III of England issued a Proclamation which 

ordered that no warrants of Sl!rvey or patents be issued upon any lands which had been 

reserved to the Indians and further forbade private purchases of lands from the Indians 

and settlement upon Indian lands. 

11. On November lu, 1763 the Governors of the Southern Colonies, including South 

Carolina, and His Majesty's Superintendent for Indian Affairs in the Southern District, 

John Stuart, negotiated the Treaty of Augusta with, among others, the Catawba Indian 

2 
939 

Nation, which Treaty provided that the Catawba Nation would remain satisfied with the 

agreement contained in the 1760 Treaty of Pine Tree Hill and the Governors and 

Superintendent on their part promised that the terms of the Treaty of Pine Tree Hill 

would be fulfilled. 

12. On July 22, 1790, Congress enacted the Indian Trade and Intercourse Act, 

presently codified at 25 U.S.C. §177, which provided then as it does now that no interest 

of any kind may be acquired in the lands of any Indian tribe other than by treaty or 

convention entered into pursuant to the Constit,utiin, to which the United States is a 

party. Any interest acquired in violation of25 s~. §177 is void in law and equity. ·_-._ ., ,_ ·-.v- 13. On March 3, 1840: \be State or~rith Carolina, without the consent and 

participation of the United Sta·~ conCluded the Treaty ofN ation Ford between the 

State and the Catawba Indian Tri13e, whereby the State purported to extinguish the 

Indian title of the Catawba Tribe to the entire 15 mile square tract secured to the Tribe 

in the 1760 and 1763 Treaties described in paragraphs 9 and 11 above. In return, the 

State promised to purchase for the Catawbas, at a costof$5,000, a tract of land either in 

Haywood County, North Carolina or in a similarly mountainous and unpopulated area in 

South Carolina and in addition agreed to pay the Tribe $2,500 cash and $1,500 per year 

for nine years. 

14. On December 18, 1840, the Legislature of the State of South Carolina enacted 

legislation ratifying and confirming the March 3, 1840 State treaty, which Act provided 

for the conveyance of the title and interest purportedly acquired by the State of South 

Carolina in Catawba Reservation lands to the non-Indian lessees of such lands upon the 

application and payment by the lessees of certain fees or taxes. 

15. The Congress of the United States bas never ratified or otherwise consented to 

the alienation of the Catawba Indian Reservation as required by 25 U.S.C. §177 and 

federal common law. The title or right of possession to the Catawba Indian Reservation 

lands which are the subject of this suit thus remains in the Ca~iindian Tribe and the 

subject land is not and never bas been the property o~~ nor party. The 

Tribe's right and title to these lands is no~$-G,il I ' rotected by the 

Fifth Amendment to the United S~"'"''U'L 

16. The State did not purtU \~reservation for the Catawba Tribe in North 

Carolina or in South Carolina as required by the 1840 Treaty. Instead, in 1842 the State 

of South Carolina purchased for the Catawba Tribe a tract of630 acres, more or less, 

located within the boundaries of the 1763 reservation which the Tribe purportedly ceded 

in the 1840 Treaty, for the sum of $2,000, which tract remains to this day the only lands 

actually occupied and enjoyed by the Catawba Tribe and these lands are exempted from 

this claim. 

3 
940 

17. In 1943, the Catawba Tribe, the State of South Carolina, and the United States 

Department of the Interior entered into a Memorandum of Understanding whereby 

3,434 acres ofland, more or less, all of which was within the boundaries of the 1763 

Treaty reservation, was acquired and taken into trust by the Secretary of the Interior for 

the Catawba Tribe. In 1959, Congress enacted the Catawba Division of Assets Act, 

Public Law 86-322,73 Stat. 592,25 U.S.C. §§931-8, which act lifted federal restrictions 

on alienation to the 3,434 acres, more or less, acquired for the Tribe pursuant to the 

1943 Memorandum of Understanding and those lands are exempted from this claim. 

18. In a Consent Order and Release, filed in the United States District Court for 

the District of South Carolina on December 13, 1989, plaintiff released its claim to 453.78 

acres, more or less, claimed by Crescent Resources, Inc., and those lands are exempted 

from this claim. 

CLAIM FOR RELIEF 

19. The 1840 transaction between th e State of South Carolina and the Catawba 

Indian Tribe, known as the Treaty of Nation Ford, was void for violation of the 1760 

Treaty of Pine Tree Hill, the Proclamation of 1763, the 1763 Treaty of Augusta, the 

Indian Nonintercourse Act (25 U.S.C. § 177), Article I, sections 8 and 10 and Article VI 

of the United States Constitution and the federal common law, and any right, title, or 

interest purportedly acquired pursuant to the 1840 Treaty of Nation Ford is likewise void. 

20. Plaintiff is informed and believes that the defendants, and each of them, claim 

an interest in or ownership to a portion of the subject lands and are keeping plaintiff out 

of possession of its lands in violation of the 1760 Treaty of Pine Tree Hill. the 1763 

Treaty of Augusta, the Proclamation of 1763, the Indian Nonintercourse Act, 25 U .S.C. 

§ 177, the federal common law, Article I, sections 8 a~~fthe United States Constitution 

and Article VI of the United States Constitution~~ · ations infringe upon plaintiffs 

title and right of possession to the sub~·ect~ ~~ ~, y federal law and keep plaintiff 

out of possession of its lands to plaint" ~\'u . 

21. Defendant St!t~~a a, by entering into the 1840 transaction, known 

as the Treaty of Nation , L\catawba Indian Tribe and thereby purporting to 

acquire the right, title an · st of the Catawba Tribe in its treaty reservation without 

the consent or participation of the United States, violated the provisions of the 

Nonintercourse Act, presently codified at 25 U.S.C. § 177, the federal common law, and 

Article I, sections 8 and 10 and Article VI of the United States Constitution. Such violations 

infringe upon plaintiffs title and right of possession to the subject lands, protected by 

federal law and keep plaintiff out of possession of its lands to plaintiffs great injury. 

WHEREFORE, plaintiff prays that this Court: 

4 
941 

1. Declare that plaintiff has the right to possession of every portion of the subject 

land which is claimed or possessed by any def~ft~dant; t£ . ... 

2. Order that plaintiff be res*-ecttlo i~eli)ate possession of all portions of the 

subject land which are claimed_in .h&e orin ~~eriby any defendant, described in paragraph 4 of this Complaint; except that plai~ff'does not request such relief with respect 

to the lands described in partgraphs ls.J-7 and 18 of this Complaint or any lands which 

are claimed by a member ofpl~tiffCatawba Indian Tribe. 

3. Declare that plaintiff is entitled to receive trespass damages, including the 

amount of the fair rental value and profits, for each portion of the subject land claimed by 

any defendant, for the entire period ofplaintifrs dispossession; and determine the amount 

of such damages and profits. 

4. Award plaintiff the costs of this action and attorneys fees; and 

5. Award such other and further relief as the Court deems just. 

Columbia, South Carolina 

September 2, 1992 

aurel Street 

olumbia, SC 29202-9571 

(803) 779-9091 

Attorneys For Plaintiff 

5 
942 

EXHIBIT A 

p . . /!? 

···.·r·· · .

. . 

~. 

;·· 

,,P.IL~t:4, 

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943 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF SOUTH CAROLINA 

Rock Hill Division 

Civil Acti~ No. 0:92-2450 

LIS PENDENS 

CATAWBA INDIAN TRIBE OF SOUTH CAROLINA, 

also known as the 

CATAWBA INDIAN NATION OF SOUTH CAROLINA, 

Plaintiff, 

v. 

Defendants. 

NOTICE IS HEREBY GIVEN that an action hi. \en commenced and is now 

pending upon Complaint of the above .. ~,\~ng ownership and right of 

possession of the subject ~~~~nt and trespass damages. The premises 

covered and affected by~}~! consists of a tract ofland roughly fifteen (15) miles 

square, or 144,000 acres, which is shown and delineated on a map prepared by Samuel Wyly, 

dated February 22, 1764, a copy of which is attached to the Complaint and made a part hereof 

by reference, and which tract ofland is located within the Counties of York, Lancaster and 

• A complete llat of dere-u Is aoalateiaed by tbe Olllce of tbe Clerk of Court. U.S. District Courtror tbe District ofSoutb Carcllna. 
944 

Chester. The boundary of the said tract ofland begins at the confluence of Twelve Mile 

Creek and the Catawba River and continues along Twelve Mile Creek in a northeasterly 

direction to the point where Twelve Mile Creek intersects the present boundary between 

North and South Carolina. From therE, the reservation boundary follows the boundary 

between North and South Carolina to the northwest approximately fifteen (15) miles and 

then to the southwest, at an angle of90:~e~~~· i.~prjimately seven and one- half(7 1/2) 

miles to the Catawba River. From t;be~, the bl\pn&ify continues in a straight line 

'!'· ; ;. ~· "' 

approximately an additional sev~and ode- ~alf(7 112) miles to a point west of the present 

City of Rock Hill, South Carolina. From there the boundary continues, at an angle of90 

degrees, in a straight line to the Southeast for a distance of approximately fifteen (15) miles 

to a point south of the City of Rock Hill and thence in a northeasterly direction to the point of 

origin at the confluence of the Catawba River and Twelve Mile Creek; LESS AND EXCEPTING 

THEREFROM, a 630 acre tract ofland actually occupied by the Catawba Tribe, 3434 acres of 

land acquired and taken into trust by the Secretary of the Interior pursuant to a 1943 

Memorandum of Understanding and which parcels were the subject of the 1959 Catawba 

Division of Assets Act, Public Law 86-322, 73 Stat. 592, 25 U.S.C. Sections 931-8, any lands 

claimed by members of the Catawba Indian Tribe, and 453.78 acres, more or less. that were the 

subject of a Consent Order and Release filed December 13, 1989 in the United States District 

Court for the District of South Carolina. 

_,C"'o"-lu=m=b"-ia=------• South Carolina 

_,S,_,e"'p-"te"'m=be"'r'-2=-----• 1992. 

en .. No.1294 

AKER, BARWICK, 

RAVENEL AND BENDER 

P.O. Box 1927 

1308 Laurel Street 

Columbia, SC 29202-9571 

( 803) 799- 9091 

Attorneys For Plaintiff 
945 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF SOUTH CAROLINA 

ROCK HILL ~ION 

.4:.~;.. ~ ~~\;· ·:\ CATAWBA INDIAN TRIBE OF fi!P~n',}.li!,. I:!'):L ACTION NO. 0:92-2450-

CAROLINA, also known 'lbl ~8'>; 'i_)'~ ~ ' 

CATAWBA INDIAN NATION··~' 'q .'J) ~ SOUTH CAROLINA, · •r,r~ ) . ) 

Plaintiff, ) 

) ORDER 

vs. ) 

) 

) 

THE CITY OF ROCK HILL, et al, ) 

) 

________________________ Defendants. ) ) 

The plaintiff claims title to approximately 144,000 acres of 

land measuring approximately 15 miles square and located in the 

counties of York, Lancaster and Chester in the state of South 

carolina. The defendants, now estimated to be 60,000 in number, are alleged to be in possession of said land, and this action was instituted1 to eject the defendants and award plaintiff damages 

for trespass. Upon being recently advised that the plaintiff 

anticipates instituting this case on or about September 2, 1992, 

this court began looking into the matter for the purpose of 

preparing for this action when and if the sa~is filed. The court 

conferred with all the attorneys known~, involved in the case and discussed the matter in great d · · a result of that 

process, the court has reached the$ onclusions: 

1. Plaintiff contends t-~~ ~cable limitations period 

requir s this action to :1: \y d on or before October 19, 

''''' ! •nd ''•in<i<~~ ''••• <o <iio tho ooo,>•in< in 

1 This order has been prepared and executed in anticipation of 

the filing of this action but is not to be filed until that event takes place. 

2 Rule 3 of the Federal Rules of Civil Procedure provides that 

"a civil action is commenced by filing a complaint with the court." 

1 
946 

this action on or about September 2, 1992. 3 

2. This is only one case, but the fact that it involves 

approximately 60,000 individual defendants and the land they each 

presently possess could cause its impact upon the District of South 

Carolina to equal that of 60,000 separate cases. Since this 

district now has pending only 3586 regular civil cases, one can 

easily calculate the devas~~t~9 effect the filing of this case may 

have on the federal cou~~ ~%~s state. 3. Upon learnin~-~h~ ~ling of this action was imminent, 

the Honorable Fal~c~~f-~·;.. ·~w rJI, Chief Judge of the District of 

South Carolina, ~Vl~~-t~ ·ldministrative Office of the United 

States Courts~ ~n~· D.c., and the Fourth Circuit Court of 

Appeals in Ric , ~ginia, of the nature of the problem and 

requested that t :_ , furnish the additional space, equipment and 

personnel the distt~ct anticipated it would need to properly manage 

this case. 4 The court has not received a response to these 

requests and does not know when it will. It is not reasonable to assume that any action will be taken before the beginning of the new fiscal year on October 1, 1992, and it will almost certainly 

be several months thereafter before the court can realistically 

expect any of its aforementioned requests to be fulfilled. 

4. There is a strong possibility that this case will be 

settled by payments being made to the plaintiff by the State of 

South Carolina and the federal government. The court is advised 

that an offer of settlement is to be made on August 22, 1992, and 

that the plaintiff is to meet on August 29, 1992, to consider the same. Even if a settlement in principle is reached prior to October 19, 1992, however, it could not be finalized until sometime 

after January 1, 1993. 

5. The large number of defendants in this case substantially 

increases the cost and difficulty involved in communicating with 

the defendants and makes it desirable that ~court maximize the 

efficiency of each contact. ~~ 6. Rule 12(a) of the Fede~a ~ ·. civil Procedure 

provides, generally, that a defe have 20 days after 

service to answer a complaint. ~' anticipates that a large 

number of the 60,000 defend~~ est extensions of time to 

3 The President 1\~~ited States has now signed into law 

a bill extending the ~or bringing this case until October 1, 

1993. Since the applicable limitations period may be established 

by South Carolina law, passage of the aforementioned federal 

extension will probably not alter the plan of the plaintiff to commence this action before October 19, 1992. 

4 These requests were based upon the assumption that there 

would be approximately 40,000 defendants named in this case and the 

best estimates of the court as to what its needs would be. Counsel 

for plaintiff now says that the number of defendants has risen ta the 60,000 range. 
947 

file their answer, and it will be impossible to properly process 

those requests in the time frame required. 

7. confusion on the part of the defendants will be reduced, 

and the efficient, proper management of this case will be promoted 

by the court furnishing to the defendants at the time the complaint 

is served as much information as possible concerning the management 

of the case. 

8. If service of this ac~ri .J!t\enjoined by the court, the 

plaintiff is concerned th~~ ~~ ·; protect its rights under 

the applicable.limit~· s{'e~\o!'\,w. 1 be required to institute 

the same case 1n sta u .ffl . ,<f-1 

9. The large n o · e ants expected to be joined in 

this case makes it ext 1~~ kely that most, if not all, of the 

judges in the District o · south Carolina will be disqualified from 

handling the same, and someone from outside the State of South 

Carolina will have to be designated to do so. 

District courts possess the inherent power to manage "their 

own affairs so as to achieve the orderly and expeditious 

disposition of cases." Link v. Wabash R.R., 370 u.s. 626, 630 

(1962). In view of the facts hereinabove set forth, this court is 

convinced that the proper exercise of that power requires the 

issuance of this order. It is, therefore, 

ORDERED that the plaintiff is enjoined and restrained from 

serving the summons and complaint in this action on any of the 

defendants for a period of 120 days from the date on which it files 

the complaint; that after the expiration of said 120 day period it 

shall have the full 120 day period provided by Rule 4(j) of the 

Federal Rules of Civil Procedure to perfect service of the summons and complaint on the defendants; and that the plaintiff is also 

enjoined and restrained from instituting this action in any other 

court. 

IT IS FURTHER ORDERED that the time for all defendants to 

answer the complaint is extended until September 2, 1993; and that 

plaintiff is relieved from complying with Rule 7.00 of h local 

rules of this court at the time of filing its compl ~~ 

AND IT IS SO ORDERED. 5 ~~ 

August 13, 1992 

Florence, South Carolina 

5 This order is being issued at the direction of the judges of 

the District of south Carolina, and the undersigned is acting 

pursuant to that authority. No decision has yet been made which 

of the judges, if any, will be responsible for the handling of this 

case after it is commenced. 

3 

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ISBN 0-16-041795-3 

90000 

9 780160 417955