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Delaware Nation v. Commonwealth of Pennsylvania

May 4, 2006; as amended June 14, 2006

THE DELAWARE NATION, A FEDERALLY RECOGNIZED INDIAN TRIBE, IN ITS OWN NAME AND AS THE SUCCESSOR IN INTEREST TO "MOSES" TUNDY TETAMY, A FORMER CHIEF OF THE DELAWARE NATION, AND OF HIS DESCENDANTS
v.
COMMONWEALTH OF PENNSYLVANIA; EDWARD G. RENDELL; COUNTY OF NORTHAMPTON, PENNSYLVANIA; J. MICHAEL DOWD; RON ANGLE; MICHAEL F. CORRIERE; MARY ENSSLIN; MARGARET FERRARO; WAYNE A. GRUBE; ANN MCHALE; TIMOTHY B. MERWARTH; NICK R. SABATINE; COUNTY OF BUCKS, PENNSYLVANIA; MICHAEL G. FITZPATRICK; CHARLES H. MARTIN; SANDRA A. MILLER; TOWNSHIP OF FORKS, PENNSYLVANIA; JOHN ACKERMAN; DAVID KOLB; DONALD H. MILLER; DAVID W. HOFF; HENNING HOLMGAARD; BINNEY & SMITH, INC.; FOLLETT CORPORATION; ROBERT AERNI; MARY ANN AERNI; AUDREY BAUMAN; DANIEL O. LICHTENWALNER; JOAN B. LICHTENWALNER; CAROL A. MIGLIACCIO; JOSEPH M. PADULA; MARY L. PADULA; JACK REESE; JEAN REESE; ELMORE H. REISS; DOROTHY H. REISS; GAIL N. ROBERTS; CARL W. ROBERTS; WARREN F. WERKHEISER; ADA A. WERKHEISER; WARREN NEILL WERKHEISER; NICK ZAWARSKI AND SONS DEVELOPERS INC.; JOHN DOES 1-250; JOHN DOE COMPANY; MARK SAMPSON; CATHY SAMPSON THE DELAWARE NATION, APPELLANT



On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 04-cv-00166) District Judge: Honorable James McGirr Kelly.

The opinion of the court was delivered by: Roth, Circuit Judge

PRECEDENTIAL

Argued November 8, 2005

Before: ROTH, FUENTES, and GARTH, Circuit Judges.

OPINION OF THE COURT

This case arises from the claim of an American Indian nation to a portion of its aboriginal land. For the reasons that follow, we find that any aboriginal rights held by the Delaware Nation to the land known as "Tatamy's Place" were extinguished by Thomas Penn via the Walking Purchase of 1737. We also find that the tribe does not hold fee title to Tatamy's Place. Thus, the District Court properly dismissed the Delaware Nation's claim pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a cause of action. The Delaware Nation v. Commonwealth of Pa., et al., 2004 U.S. Dist. Lexis 24178 (E.D. Pa. 2004). Accordingly, we will affirm the dismissal order of the District Court although we do not base our conclusion on the same reasoning.

I. Background

In January 2004, the Delaware Nation filed this lawsuit, as the successor in interest and political continuation of the Lenni Lenape and of Lenni Lenape Chief "Moses" Tundy Tatamy, claiming aboriginal and fee title to 315 acres of land located in Northampton County, Pennsylvania, known as "Tatamy's Place."*fn1 The defendants in this case are residents or businesses, currently occupying the land, or government entities sanctioning the tenants' possession. The Delaware Nation seeks to enforce its rights to Tatamy's Place pursuant to the Trade and Intercourse Act, also known as the Indian Nonintercourse Act, 25 U.S.C. § 177 (1799), and federal common law. The Delaware Nation is seeking both equitable relief and monetary damages.

The history of Tatamy's Place is yet another sad example of our forefathers' interactions with the Indian nations. The following historical allegations are taken from the Complaint and the public record.*fn2 In 1681, William Penn secured a Charter from King Charles II for what is now Pennsylvania. Through the Charter, William Penn and his heirs were vested with control of Pennsylvania's land as its Proprietor.*fn3 William Penn formed a government consisting of three branches: (1) a governor with limited powers, (2) a legislative Council empowered to propose legislation, and (3) a General Assembly empowered to approve or reject the legislative initiatives proposed by the Council. Sections XVII through XIX of the Charter established a proprietary government that "gave Penn broad powers in selling or renting his lands. Those purchasing land from him must have his approval of any method they themselves might use to sell the land to others." Penn's government provided for "secure private property."

In contrast to governors of other colonies, William Penn achieved peaceful relations with the Indians, including the Lenni Lenape, by acquiring land through purchase rather than conquest. William Penn's son, Thomas, was one of the eventual successors to his father's interests in Pennsylvania.*fn4 In 1737, Thomas Penn executed the now-infamous "Walking Purchase" with the Delaware Nation. This purchase included Tatamy's Place. To make a tragic story short, the Walking Purchase was the result of a massive fraud perpetuated by Thomas Penn on the Delaware Nation.*fn5

Although most members of the Delaware Nation left the area following the Walking Purchase, a leader of the group, Chief Tatamy, continued to occupy Tatamy's Place with the approval of the Penns. In consideration for Chief Tatamy's friendship towards the white settlers, he was issued two land patents for Tatamy's Place -- both of which postdate the Walking Purchase. The first patent was dated April 28, 1738, and the second was dated January 22, 1741.

The 1741 Patent provided:

at the Instance and request of the said Tundy Tatamy in consideration of his Surrendering and delivering up to be Cancelled the said former patent of the said Premises & of the Sum of Forty Eight Pounds Sixteen shillings and five Pence lawful Money of Pennsylvania to our use paid by the said Tundy Tatamy . . . We have given granted released & confirmed and by these presents for us our Heirs and Successors do grant release and confirm unto said Tundy Tatamy and his Heirs the said Three hundred and fifteen Acres of Land as the same now set forth . . .

Also, Chief Tatamy had to seek special permission from the Provincial Council of Pennsylvania to remain in Tatamy's Place following the Walking Purchase. The Minutes of the Provincial Council meeting of November 20, 1742, indicate that the Governor granted permission to Chief Tatamy to remain on his land on the express condition that "the other Petitioners were by no means to be included in this Permission, nor any other of the Delaware Indians, whom they ...


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