E. Events In The Twentieth Century Leading To The Enactment 10. On August 1, 1953 House Concurrent Resolution 108 was passed. That Resolution declared that the policy of Congress 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. [H.R. Con. Res. 108, H.R. REP. NO. 2680, 83d Cong., 2d Sess. (1954), Defendants' Exhibit 3] 11. In September 1954, a special House Study Subcommittee on Indian Affairs reported that, on the basis of information collected by the Bureau of Indian Affairs, the Catawbas were among the Indian groups able to manage their own affairs and ready for termination. [H.R. Rep. No. 2680, 83d Cong., 2ȧ Sess. (1954) at 2-3, Defendants' Exhibit 6] 12. In 1959 South Carolina Congressman Robert Hemphill introduced H.R. 6128, [105 Cong. Rec. 5466 (1959), Defendants' Exhibit 21] which was to become the Catawba Act. Congressman Hemphill told his congressional colleagues during debates on the legislation: It is my purpose to put these people and their [105 Cong. Rec. 5462 (1959), Defendants' Exhibit 22} In hearings on the legislation he similarly stated: A majority of the Indians want this legislation. They need it to put them on the [Transcript of the hearings on H.R. 6128 at 10] 13. Before the bill was introduced, the following steps were taken to insure that the Catawbas desired to be terminated: a. Congressman Hemphill requested that a Bureau of Indian Affairs Program Officer be appointed to reside at Rock Hill for a sixty day period to develop a satisfactory plan for the Catawbas. [Defendants' Exhibit 14); b. The Catawbas adopted a resolution on January 3, 1959 requesting Congressman Hemphill to secure passage of 7. The Treaty of Nation Ford was executed in 1840. At the time that Treaty was executed the Catawbas had apparently leased to white settlers all of the land referred to in the 1763 Treaty of Fort Augusta. By the terms of the Treaty of Nation Ford the Catawbas agreed to grant their remaining interest in the land in issue to the State of South Carolina in return for the purchase of a tract of land having a value of $5,000, the payment of $2,500 upon their removal from their former lands, and $1,500 each year for nine years. [Plaintiff's Exhibit 12, 15] 8. On December 24, 1842, approximately 630 acres of land were purchased for the Catawbas and held in trust by the State of South Carolina. [Complaint 15, 19; The 630 acres are sometimes referred to as 638 or 652 acres. See, Plaintiff's Exhibit 15] D. The 1943 Memorandum Of Understanding 9. In 1943 the State of South Carolina, the Catawbas and the Office of Indian Affairs of the United States Department of Interior entered into a Memorandum of Understanding. Pursuant to that Memorandum of Understanding, South Carolina agreed to authorize the expenditure of up to $75,000 to purchase lands for the Catawbas, and, upon request, to convey to the United States in trust the land then held by South Carolina in trust for the Catawbas as a result of the 1840 Treaty. Pursuant to the Memorandum of Understanding, South Carolina also agreed to appropriate at least $9,500 annually in 1944, 1945 and 1946 to be expended by the Office of Indian Affairs, and to extend the rights and privileges of all citizens, including admission to schools, to the Catawbas. The Office of Indian Affairs further agreed to contribute annually such sums as were available to the welfare of the Catawbas, and to assist the Catawbas in matters involving education, medical treatment, and economic development. [Plaintiff's Exhibit 52] legislation removing federal restrictions on the alienation of their land, [Resolution of Catawba Tribe of Indians, January 3, 1959, Defendants' Exhibit 17]; C. Congressman Hemphill met with the Catawbas on March 28, 1959 and explained the purpose of the legislation to be to dispose of the assets of the tribe and terminate federal responsibility to the tribe and its individual members. At the conclusion of the meeting, and following the explanation, the Catawbas again voted in favor of the bill. [Defendants' Exhibit 19] 14. the bill which became the Catawba Act. 15. On September 21, 1959 President Eisenhower signed The plebiscite was held among the adult members of the Catawbas. explanation of section five of the act (25 U.S.C. $935) furnished to the Catawbas explained that: Section 5 revokes the tribal constitution [Defendants' Exhibit 29] 16. On July 1, 1960 the Secretary of the Interior published a notice in the Federal Register that a majority of the adult Catawbas had indicated their agreement to the provisions of the bill and that the provisions of the Catawba Act were effective as of that date. [25 Fed. Reg. 6305, Defendants' Exhibit 32) 17. On July 1, 1962 the Catawbas' constitution was revoked, and the termination process was completed. Exhibits 35, 36] [Defendants' 18. The Catawbas have never been relieved of the consequences of the Catawba Act. The Bureau of Indian Affairs continues to list them among its current list of terminated 19. On October 28, 1980, more than eighteen years and three months after the revocation of the Catawbas' constitution and more than twenty years and three months after the effective date of the Catawba Act, the complaint in this action was filed. As a After considering the undisputed facts (and assumed matters) referred to above and considering the relevant principles of law, this Court. concludes that no genuine issue of material fact exists and that defendants are entitled as a matter of law to the entry of a judgment dismissing this action. result of the enactment of the Catawba Act four separate grounds independently require entry of judgment in favor of the defendants. The first ground, the failure of the plaintiff to commence this action within the time provided by the applicable statute of limitations, bars any claim the plaintiff may assert without regard to the basis of the claim. The remaining three grounds require dismissal because the enactment of the Catawba Act precludes the plaintiff from proving, as a matter of law, three elements of the prima facie case required to state a claim under the Nonintercourse Act.1 1 The defendants have suggested that they intend to dispute not only whether the Nonintercourse Act applies in this instance, but also whether the Nonintercourse Act may properly be construed to afford a private right of action. For the purposes of this motion the Court has assumed that such a private right of action exists. A. The Provisions of the Catawba Act Make The South 1. Section five of the Catawba Act, 25 U.S.C. $935, provides that after the Catawbas' constitution was revoked, (which occurred on July 1, 1962): [T]he laws of the several States shall apply to them (the Catawbas] in the same manner they That explicit statutory language directed that state law apply to the Catawbas from the moment their constitution was revoked. 2. The legislative history of the Catawba Act, consisting of the statements of the bill's sponsor and the Department of the Interior, indicates that the Act was intenaea to provide the Catawbas the same privileges and same responsibilities as other South Carolina citizens. After its passage, the Catawbas were to have the same status as non-Indians. they and their claims were to be subject to state law in the same manner as other citizens and their claims. Thus, 3.. Further, even if the provisions of the Catawba Act, as amplified by its legislative history, were less clear, termination of the Catawbas' special federal status accomplished the same result. The Catawba Act is unquestionably a "termination act" which terminated any special federal status the Catawbas may previously have held. The Catawba Act was passed during the period when House Concurrent Resolution 108 firmly established the federal policy to make Indians subject to the same laws as other persons and to terminate any special status the Indians may have had under federal law. The Catawba Act is in a form similar to the language contained in other termination acts, see, e.g., 25 U.S.c. $5721-728 (Alabama-Coushatta); 25 U.S.C. $S564-564x (Klamath); 25 U.S.c. $$971-980 (Ponca). The Catawba Act was viewed, and referred to, as an act which would terminate any special Indian relationship to the federal |