Pennsylvania

Indian Tribe Sues Over Pennsylvania Land

Shannon P. Duffy, The Legal Intelligencer, Law.com
January 20, 2004

Legalized gambling in Pennsylvania may not have to wait for the lawmakers in Harrisburg to strike a deal now that the Delaware Nation, an Oklahoma-based Indian tribe, has filed suit in federal court claiming ownership rights to 315 acres of land in Bucks and Northampton counties in a quest to operate a gambling facility there.
The suit, Delaware Nation v. Commonwealth of Pennsylvania, seeks a court order declaring the land an Indian reservation as well as an injunction requiring its current occupants — a Crayola crayon factory and some private homeowners — to vacate the premises.

The suit, filed in U.S. District Court in Philadelphia, comes as state lawmakers prepare to resume an ongoing debate over legalizing slot-machine gambling in Pennsylvania to raise money to reduce local residential property taxes.

Lead plaintiff’s attorney Steven A. Cozen of Cozen O’Connor suggested that the tribe’s interests could be satisfied either through legislation or litigation.

“Either the Delawares will be part of the legislative solution currently under consideration by the Legislature, or else the Delawares will look to the federal courts to help them secure the property that was wrongfully taken from them two centuries ago,” Cozen said.

“One way or the other, we are confident that the Delawares will secure the right to conduct gaming operations in Pennsylvania,” Cozen said.

The suit names 44 defendants including Gov. Edward Rendell; Northampton County and its nine elected council members; Bucks County and its three commissioners; Forks Township and its five supervisors; Crayola crayon manufacturer Binney & Smith, a subsidiary of Hallmark Cards; the Follett Corp., which manufactures ice storage facilities; 19 individual homeowners; and Nic Zwarski & Sons, a land developer.

Joining Cozen as co-counsel for the plaintiffs is Oklahoma City attorney Phil G. Busey, a member of the Cherokee and Delaware tribes.

According to the suit, the land was given to the tribe by descendants of Pennsylvania founder William Penn in a pair of grants dated 1738 and 1741.

But the suit says the land was lost around 1800 when fraudulent deeds were used to convey it from the descendants of Allentown founder William Allen to the grandchildren of Melchior Stretcher.

According to the suit, the Delaware Nation is the “political continuation of the Lenni Lenape tribe of Indians.”

The suit says that in 1600, the Lenni Lenape extended from Cape Henlopen in Delaware to the lower Hudson Valley.

The Delaware Nation’s ownership of rights to land can be traced, the suit says, all the way back to the 1681 charter granted by King Charles II of England to William Penn through the early 19th century.

The suit says Penn had a good relationship with Indians that was based on “mutual respect.”

“While the Puritans stole from the Indians, Penn achieved peaceful relations with them,” the suit says.

Penn was “careful to acquire land from them by purchase rather than by conquest,” the suit says.

But Penn’s sons abandoned their father’s approach and instead set out to trick the Lenape Indians out of their land, the suit alleges.

In 1737, the suit alleges, Thomas Penn claimed that Indian ancestors had signed documents deeding land to Penn equal to “as much as could be covered in a day and a half’s walk.”

Although the documents were later shown to be a forgery, the suit says the Lenape unwittingly honored what they believed to be promises made by their forefathers.

Thomas Penn made the most of his trickery, the suit says, by hiring workers to clear a straight path through a forest and getting three of the fastest runners in the area to do the “walking.”

As a result, the so-called “Walking Purchase of 1737” netted Thomas Penn more than 1,200 acres, the suit says.

About 100 years later, experts concluded that the deed was a forgery, the suit says.

But one group of Lenape Indians was spared in the Walking Purchase, the suit says, because Penn’s descendants had already granted a tract of land to Chief “Moses” Tundy Tetamy.

The suit refers to the tract as “Tetamy Place” and says that the land was never validly conveyed to anyone else.

But the land was lost around 1800, the suit says, when an alleged deed of conveyance was produced that said William Allen had conveyed the land to Melchior Stretcher in 1760.

The suit alleges that the conveyance must have been fraudulent because the document makes no mention of the mechanism by which Allen procured title.

Under the Indian Nonintercourse Act, the suit says, no purchase or grant of land owned by Indians is valid unless it was made by treaty or convention.

“Any conveyance other than by act of Congress ? is invalid erroneous and improper,” the suit says.

The suit, 04-cv-166, has been assigned to Senior U.S. District Judge James McGirr Kelly.