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government both before it was enacted, [H.R. REP. NO. 910, 86th Cong., 1st Sess. (1959), and S. REP. No. 863, 86th Cong., 1st Sess. (1959), Defendants' Exhibits 25, 26], and after it was enacted. [Excerpts from Hearings on S.3174 Before the

Subcommittee on Indian Affairs of the Senate Committee on Interior and Insular Affairs, 87th Cong. 2d. Sess. (1962); Bureau of Indian Affairs Branch of Tribal Relations list: Indian Tribes Terminated from Federal Supervision, April 1, 1981, Defendants' Exhibit 10, 39]; Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 133 n.1 (1972). The termination of the special federal status of the Catawbas' made state law apply to them, and to any claim they may have had. See, e.g., Taylor v. Hearne, 637 F.2d 689 (9th Cir., cert. denied, U.S. S.Ct. 291 (1981); United States v. Heath, 509 F.2d 16 (9th Cir. 1974); Bryan v. Itasca County, Minnesota, 426 U.S. 373 (1976).

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4. Because section five of the Catawba Act explicitly made state law applicable to the Catawbas and the termination of the trust relationship accomplished the same result, South Carolina's statute of limitations began to run against any claim the Catawbas or the plaintiff may have had on July 1, 1962, the date the Catawbas' constitution was revoked. See, e.g. Schrimpscher v. Stockton, 183 U.S. 290 (1902); Dillon v. Antler Land Co., 341 F. Supp. 734 (D. Mont. 1972), aff'd, 507 F.2d 940 (9th Cir. 1974) cert. denied, 421 U.S. 992 (1975); Dennison v. Topeka Chambers Development Corp., 527 F. Supp. 611 (D. Kan. 1981).

5. The relevant South Carolina statute of limitations

is $15-3-340. That statute requires that an action to recover title or possession be brought within ten years. An action to recover title or possession brought more than 18 years after that statute began to run is, accordingly, barred. Although South Carolina appears to prevent a party from obtaining title by adverse possession from "tacking" his period of possession to a

predecessor's period of possession (unless the land passed by

inheritance) that rule is not relevant to the defendants'

assertion that the plaintiff's claims are barred by the statute

of limitations.

Haithcock v. Haithcock, 123 s.c. 61; 115 S.E.

727 (1920).

6.

Although the plaintiff asserts claims other than

those based on the Nonintercourse Act, the United States imposed no general restraint on the alienation of lands owned by Indians

other than the various versions of the Indian Trade and

Intercourse Acts, the first of which was enacted on July 22,

1790, and imposed no specific restraint on the alienation of these lands. Even if such other claims existed, section five of

the Catawba Act has made the South Carolina statute of

limitations apply, and bar, those claims.

7. The plaintiff's arguments against the application of the South Carolina statute of limitations are unavailing:

a.

It is inconsistent with the language and

legislative history of the Catawba Act, and with official

federal policy during the termination era, to read the Act only to revoke the 1943 Memorandum of Understanding. The

Catawba Act does not mention the Memorandum of Understanding.

Moreover, an act of Congress was not required for the United

States either to enter into or

to terminate that Memorandum

of Understanding.

b.

Construing the Catawba Act as making state

statutes of limitation apply and begin to run would not
"extinguish" any rights. Under this construction, the Act
merely changed the procedures by which the Catawbas' could

enforce any rights they may have had and ended any trust
obligation the federal government may once have had.

Affiliated Ute Citizens of Utah v. United States, 4UÓ U.S.

128 (1972).

C.

Finally, Menominee Tribe v. United States, 391

U.S. 404 (1968), does not require a different result.

First,

v.

the Menominee Court read other legislation, Public Law 280,
to be in pari materia with the Menominee termination act
because both acts had been passed by the same Congress.
Public Law 280 does not apply to the Catawbas, 67 Stat. 588
as amended, 18 U.S.C. $1162, and, therefore, Menominee has no
application here. Sac and Fox Tribe of Mississippi in Iowa
v. Licklider, 576 F.2d 145 (8th Cir.), cert. denied, 439 US
955 (1978). Second, no provision of any treaty is claimed to
protect any interest the Catawbas may have had, to have
prevented the Catawbas from voluntarily alienating any
interest they may have had, or to entitle the plaintiff to
the recovery of the land in issue.
Instead, plaintiff claims
that it voluntarily conveyed, in violation of a statute, an
interest in land which it acquired by a treaty. Menominee
recognized that statutory rights and privileges were subject
to all the effects of termination.

B.

As A Result Of The Catawba Act, The Plaintiff Cannot
Prove That It Is An Indian "Tribe".

8. In order to prevail on its Nonintercourse Act claims, the plaintiff must demonstrate that it presently constitutes an Indian tribe within the meaning of the Nonintercourse Act, Mashpee Tribe v. New Seabury Corp., 592 F.2d 575, 581 and 587 n. 8 (1st Cir.), cert. denied, 444 U.S. 866 (1979), was a tribe when the Nonintercourse Act was violated, Epps v. Andrus, 611 F.2d 915, 918 (1st Cir. 1979), and continuously was a tribe in the intervening period. See, Mashpee Tribe v. New Seabury Corp., supra; cf., 25 C.F.R. $54.1 et. seq. 9. The Catawba Act precludes the plaintiff, as a matter of law, from demonstrating present or continuous tribal existence. To be a tribe a group must have a legal and political existence setting it apart from the general mass. United States Joseph, 94 U.S. 614, 617 (1877); United States v. Antelope, 430 U.S. 641, 646 (1977). Congress may, however, terminate the political existence which is crucial to tribal existence. Unitea

States v. Wheeler, 435 U.S. 313, 323 (1978).

10.

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Section five of the Catawba Act revoked the tribal constitution and dissolved the former tribal government of the Catawbas. After the revocation of the tribal constitution the Catawbas were not a governmental entity. Instead, they were permitted to organize on a voluntary basis under state law to carry on nongovernmental activities of the group. Congress' explicit termination of the special federal relationship between the Catawbas and the United States bars the plaintiff, as a matter of law, from proving present or continuous tribal

existence.

C.

Congress Ratified The Transfer Of The Land Effected By
The 1840 Treaty.

11. Congress may ratify, and thereby validate, a

disputed transfer of Indian land in any manner which recognizes the occurrence or effect of the transfer, including a statute enacted long after the transfer. See, e.g., Seneca Nation of Indians v. United States, 173 Ct. Cl. 912 (1965). A subsequent congressional enactment which recognizes that land formerly owned by Indians is no longer owned by them has been construed to validate the original transfer, Seneca Nation, supra, as has an enactment which authorized the United States to receive and administer the funds received from the disputed transfer. Seneca Nation v. Christy, 126 N. Y. 122 (1891), writ of error dismissed on other grounds, 162 U.S. 283 (1896).

12. Congress was unquestionably aware of the 1840 Treaty of Nation Ford and in fact reference is made to it in the House Committee Report. [H.R. REP. NO. 910, 86th Cong., 1st Sess. (1959), Defendants' Exhibit 25] Further, section two of the Catawba Act, 25 U.S.C. 5932, explicitly refers to the assets held by the State of South Carolina in trust. Those "assets" included the 630 acres purchased for the Catawbas as a result of the 1840 Treaty. Congress' explicit recognition of those assets and treatment of them in the Catawba Act constitutes explicit recognition and an implicit ratification of the 1840 Treaty.

D.

The Catawba Act Ended Any Trust Relationship Between Tne
United States And The Catawbas.

13. Finally, to successfully maintain a Nonintercourse
Act claim the plaintiff must demonstrate that the alleged trust
relationship between it and the United States has never been
terminated. Narragansett Tribe of Indians v. Southern Rhode
Island Land Development Corp., 418 F. Supp. 798 (D.R.I. 1976);
see Joint Tribal Council of the Passamaquoddy Tribe v. Morton,
528 F.2d 370, 380 (1st Cir. 1975). In this case the Congress
has, by enacting the Catawba Act, terminated any trust
relationship which ever existed between the Catawbas and the

United States.

A judgment order follows:

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TRUE COPY:
Test:

Jon W. lliams, flerk

B: Deputy Clerk

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