Certification having been declined, the Fourth Circuit, again en banc, held 4–2 that the statute of limitations did not bar the tribe's claim, finding that there was a presumption of possession within the 10 year limitations period.Catawba Indian Tribe, Inc. v. South Carolina, 865 F.2d 1444 (4th Cir. 1989) (en banc). In other words, the court held that the Catawba's claim would only be time-barred as to defendants who were able to demonstrate adverse possession, without tacking except by inheritance. Thus, the court would look for a continuous ten-year period of possession for each defendant land-owner for the period between July 12, 1962 (the date of termination) and October 28, 1980 (the filing of the complaint). Further, the court rejected the defendant's other affirmative defense that the claim was not recorded in South Carolina's Registry of Mesne Conveyances and challenge to the jurisdiction of the court. The U.S. Supreme Court declined to grant certiorari after this ruling..
