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Oklahoma tribe loses bid for out-of-state land
Friday, December 3, 2004

An Oklahoma tribe who filed an out-of-state land claim in hopes of settling for gaming rights suffered a setback on Wednesday when a judge dismissed the case.

The Delaware Nation sued the state of Pennsylvania over 315 acres that were deeded to a Delaware chief nearly 300 years ago. The goal wasn't the return of the land, however, as tribal leaders were up front about their intent to use the claim to establish a casino in the land of their ancestors.

Gov. Ed Rendell, a Democrat, immediately rejected the tactic and said he would not negotiate with the tribe. Some state lawmakers tried to include the tribe in legislation to legalize slot machines but the effort failed when the final bill passed.

The tribe still held out hope that it could receive one of the 14 slot machine license authorized by the Legislature. A former partner in the law firm of Cozen O'Connor, the firm handling the land claim, was tapped by Rendell to head the state's gaming commission. The appointee was not involved in the lawsuit.

But the campaign hit a snag this week in a 33-page decision from U.S. District Judge James McGirr Kelly, who said there is no doubt that the Delawares have ties to the state. The Lenni Lenapes, as the tribe's ancestors are known, signed treaties of peace with the British government, which was represented by William Penn, the founder of Pennsylvania.

"Penn’s fair dealings with the Lenni Lenape earned him their respect and loyalty," Kelly noted.

The goodwill changed after Penn died and his sons took over. As more and more European settlers arrived in Pennsylvania, they sought lands occupied by the Lenni Lenapes. In some instances, the land was taken forcefully.

In the case at hand, it was taken by fraud. In 1737, Penn's sons forged documents stating that Lenni Lenape chiefs had agreed, some 50 years earlier, to grant the new arrivals a certain amount of land. The amount would be determined by the distance walkers could cover over in a day-and-a-half walk.

"The Lenni Lenape Chiefs trusted that the 'white men' would take a leisurely walk through the tangled Pennsylvanian forests along the Delaware,' Kelly wrote in the decision. "The Chiefs were not aware that they were about to lose a significant amount of land."

The Walking Purchase of 1737, as the arrangement became to be known, resulted in the Lenni Lenapes losing 1,200 square miles of land. Penn's sons cheated by clearing paths in the forest and promising money to men who ran, instead of walked, the distance.

The lost land included 315 acres deeded in fee simple to Chief "Moses" Tundy Tetamy in 1733. In the lawsuit, the Delaware Nation said the transfer was illegal because it was taken by deception.

Kelly did not dispute the characterization, calling the actions of Penn's sons "vile." But he said that Penn's sons, acting as sovereigns, were within their rights to take the land. "The Walking Purchase of 1737 extinguished aboriginal title to the lands acquired therein," he wrote.

The tribe countered this claim by saying the transfer of what is now called "Tatamy’s Place" wasn't approved by the federal government. Other tribes in the East have used the Trade and Intercourse Act of 1799 successfully to claim land they lost during Colonial times.

But Kelly said the law didn't apply because Chief Tetamy's land was never tribal property. "Therefore, tribal land rights may not be revived, and without any tribal land rights in Tatamy’s Place," the decision stated.

The case represents a nationwide trend of tribes seeking to re-establish ties to lands hundreds of miles away from their current reservations and sometimes in other states. Tribes have made far-flung claims in New York, Kansas, Colorado and elsewhere in hopes of settling for gaming rights.

So far, tribes have had little success. Since 1988, when Congress passed the Indian Gaming Regulatory Act, only three tribes have been able to open casinos on off-reservation land. The process requires approval from the governor of the state where the land is located. In all three cases, the tribes stayed within state borders.

But just last month, New York Gov. George Pataki (R) agreed to allow the Seneca-Cayuga Tribe of Oklahoma to open a casino in the Catskills region just 90 miles north of New York City. The deal, the first of its kind nationwide, has drawn objections from the Oneida Nation, a New York-based tribe that says out-of-state tribes have no rights in the state. The settlement needs state and federal approval.

Federal officials have given mixed signals on the issue. The National Indian Gaming Commission, the agency that regulates tribal casinos, endorsed a strict interpretation of IGRA's off-reservation provision in denying an Oklahoma tribe's claim to land in Kansas.

The top gaming official at the Bureau of Indian Affairs, on the other hand, has not embraced that view. At a Senate hearing this past March, the agency's acting assistant secretary for policy and economic development, George Skibine, said there appears to be no legal basis to outright bar such proposals.

The BIA's stance is being tested by none other than the Delaware Nation. The tribe has acquired 480 acres in Maryland for use as a landfill and wants the land placed in trust. A decision has been pending for several months.

In addition to suing the state of Pennsylvania, the tribe named private landowners, local townships and the Crayola crayon company, which owns a plant on the disputed land. The tribe said it never intended to remove the landowners.

Get the Decision:
Delaware Nation v. Pennsylvania (December 1, 2004)