defendants' motion for the supplemental order in which it was indicated that plaintiff had no objection to the supplemental order as suggested by defendants. Whereupon the following order was entered by this Court on January 15, 1981: "SUPPLEMENTAL ORDER "1. On or before February 26, 1982, the plaintiff and the moving defendants each shall submit proposed orders for the resolution of the motion for summary judgment. The proposed orders shall address only the issues previously briefed and argued by the parties before this Court concerning the consequences of the 1959 legislation referred to by the defendants as the Catawba Termination Act. "2. The Court understands that accompanying defendants' brief in support of its Motion To Dismiss it filed appendices with Exhibits 1 through 39 inclusive, and opposing defendants' motion plaintiff filed Exhibits 1 through 61 inclusive with its brief. The Court further understands that counsel stipulated at the hearing October 28, 1981, at Rock Hill, that these two appendices are now in evidence and are a historical record and are the basis for the Court's ruling that the motion in this case is to be decided under Rule 56 rather than under Rule 12 (b) (6). 13. Within 20 days after the proposed orders are exchanged between counsel, if desired, supplemental briefs may be filed. Thereafter, oral argument may be directed." Thereafter on February 26, 1982, defendants' counsel filed a proposed order styled: Proposed Order Granting Summary Judgment. On the same date, counsel for plaintiff filed a proposed order in opposition to defendants proposed order. Plaintiff's proposal is extensive. statements and some 60 conclusions of law. of defendants' motion for summary judgment. It has some 52 factual It seeks a denial This Court is of the firm view that a decision must be made as to whether the Catawba Termination Act is to be given the effect as contended by defendants or given the limited effect as contended by plaintiff, that is, that only the Memorandum of Understanding entered into in 1943 between the Federal Government, the State of South Carolina, and the Catawba Indian Tribe was terminated by the statute. Upon due consideration of the two proposed orders presented together with the historical record and the authoritative decisions cited by counsel, as well as the respective arguments, this Court has concluded that there is no genuine issue as to any material fact and that defendants' motion for summary judgment must be granted and this case dismissed. Congress having acted, it is believed that this Court should give full effect to the statute since from the inception of this Government Congress has regulated the affairs of Indians in all their aspects. Defendants' proposed order granting summary judgment submitted by counsel for defendants is herewith adopted and made an integral part of this decision. Plaintiff's proposed order for a judgment in opposition thereto is rejected. Defendants' order follows: This action seeks to void the titles presently held by more than 27,000 persons and public or private entities to land in a 225 square mile area surrounding and including Rock Hill, South Carolina. The plaintiff, Catawba Indian Tribe of South Carolina, Inc., is a corporation operated by persons claiming to be the descendants of Catawba Indians. The plaintiff alleges that the Catawba Indians owned and occupied the land in issue "from time immemorial", and that their ownership was confirmed by agreements and treaties with British and colonial officials in 1760 and 1763. In 1840, the Catawba Indians entered into the Treaty of Nation Ford with the State of South Carolina and thereby transferred any interest they might have had in that land to the State of South Carolina. That treaty and all titles deriving from it are alleged to be void because the transfers effected by that Treaty allegedly violated those provisions of the various Indian Trade and Intercourse Acts regulating the alienation of Indian land, known as the Nonintercourse Act and presently codified as 25 U.S.c. $177. 6 The defendants' motion asserts that a 1959 act of Congress (codified at 25 U.S.C. S$931-938 and referred to here as the "Catawba Act") bars the prosecution of this action as a matter of law. The defendants' motion has been treated as a motion for summary judgment because, pursuant to the stipulation of the parties, the exhibits to their memoranda have been considered as historical background concerning the Catawba Act. The only fact necessary to resolve this motion is the undisputed fact that, in 1959, Congress passed the Catawba Act. Because the defendants' motion is addressed solely to the effect of that act upon the legal status of the Catawbas and their claims, the plaintiff's allegations concerning its status prior to 1959 have been assumed, but not found, to be true. Similarly, the plaintiff's allegations concerning events occurring before the 1950's have been assumed, but not found, to be true. II. UNDISPUTED FACTS AND ALLEGATIONS ASSUMED TO BE TRUE A. The Parties 1. The plaintiff is the Catawba Indian Tribe of South Carolina, Inc. ("plaintiff"), a non-profit organization incorporated under the law of South Carolina. [Complaint 15] The plaintiff's assertions that the persons whom it represents, or their ancestors, were at all relevant times prior to 1959 an Indian tribe, and that plaintiff corporation has succeeded to any rights the alleged tribe may have had, are assumed to be true for the purpose of this motion only. The Court judicially notices, however, that the United States appears never to have formally recognized the Catawbas, and notes that the factual question of whether the Catawbas were a tribe is, in any context other than the present motion, disputed. 2. The defendants include the State of South Carolina, other public entities, corporations and individuals. Those defendants are alleged to be representative of a class of at least 27,000 people. [Affidavit of Robert M. Jones, filed October 29, 1980 in support of Plaintiff's Motion for Class Certification] B. The Land In Issue 3. " The land sought by the plaintiff but currently held by the defendants and the putative class consists of approximately 144,000 acres or 225 square miles which includes the City of Rock Hill, the Town of Fort Mill and several other smaller communities. Presently located on the land in issue are homes, places of business, schools, churches and government buildings. The land lies in York, Lancaster, and, perhaps, Chester Counties. [Complaint ¶1, 4] C. Ancient Events Involving The Land In Issue 4. Neither party has been able to furnish the Court with any document containing the terms of the 1760 Treaty of Pine Tree Hill. However, for the purpose of deciding this motion only, it has been assumed that the Treaty existed and granted the Catawbas some interest in the land in issue. 5. The 1763 Treaty of Fort Augusta was entered into by the Catawbas and British and colonial officials, and provides, in relevant part, only that: And we the Catawba Head Men and Warriors [Plaintiff's Exhibit 6] 6. Nothing in the 1763 Treaty of Fort Augusta prohibited the Catawbas from alienating the 15 mile square area of land referred to in the Treaty, or prohibited any person from acquiring that land. [Id.] |