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 Sam

Citations: 446 F.3d 410; 2006 U.S. App. LEXIS 11085Docket: 04-4593

Court: Court of Appeals for the Third Circuit; May 4, 2006; Federal Appellate Court

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The Delaware Nation, representing itself and as the successor to former Chief Moses Tundy Tetamy, filed a lawsuit claiming aboriginal and fee title to 315 acres known as "Tatamy's Place" in Northampton County, Pennsylvania. The defendants include local residents, businesses, and government entities involved with the land. The claim is based on the Trade and Intercourse Act (Indian Non-Intercourse Act), seeking both equitable relief and monetary damages. The court, however, determined that the Delaware Nation's aboriginal rights to the land were extinguished by Thomas Penn through the Walking Purchase of 1737 and concluded that the tribe does not hold fee title to the property. Consequently, the District Court dismissed the case under Federal Rule of Civil Procedure 12(b)(6) for failure to state a cause of action, and this dismissal was affirmed by the Court of Appeals, albeit on different reasoning.

The history of Tatamy's Place illustrates the complexities of land transactions between early Pennsylvania settlers and Indigenous nations. In 1681, William Penn received a Charter from King Charles II, granting him control over Pennsylvania's land and establishing a government with a governor, a legislative Council, and a General Assembly. This Charter provided Penn with the authority to manage land sales, requiring his approval for reselling. Unlike other colonial governors, Penn maintained peaceful relations with the Lenni Lenape Indians through land purchases rather than conquest. 

However, in 1737, Thomas Penn, William's son, executed the fraudulent "Walking Purchase" with the Delaware Nation, which included Tatamy's Place. Following this event, most Delaware members departed, but Chief Tatamy remained at Tatamy's Place with the Penns' consent. He received two land patents for the property in 1738 and 1741, with the latter patent contingent upon him surrendering a previous patent and paying a fee. Chief Tatamy also needed special permission from the Provincial Council to stay on his land after the Walking Purchase, which was granted under specific conditions limiting the rights of other Delaware Indians.

The subsequent ownership of Tatamy's Place remains unclear, with a deed recorded on March 12, 1803, showing Edward Shipper, executor of William Allen's estate, transferring the land to the Strecher family based on a prior agreement. However, the documentation does not clarify how the title transitioned from Chief Tatamy to William Allen or his predecessors.

The Delaware Nation's Complaint presents two main arguments for recovery regarding Tatamy's Place. First, the tribe argues that the land was taken through deception in the Walking Purchase, meaning their aboriginal rights were never extinguished, thus maintaining their right to occupy and use the land under the doctrine of discovery. Second, as the successor to Chief Tatamy, the Delaware Nation claims fee title to the land based on historical land grants from the Proprietors, asserting that its alienation from Chief Tatamy violated the Trade and Intercourse Act of 1799.

On November 30, 2004, the District Court dismissed the Complaint entirely for failure to state a cause of action, noting that the Delaware Nation acknowledged Thomas Penn's sovereign authority to take Tatamy's Place, rendering the fraudulent nature of his acquisition irrelevant. The court also determined that the Nonintercourse Act did not apply since Tatamy's Place was not classified as "tribal land." The Delaware Nation subsequently appealed.

The District Court's jurisdiction was based on 28 U.S.C. 1331 and 1362, which allows for civil actions by recognized Indian tribes involving U.S. constitutional or statutory matters. The appeal is under 28 U.S.C. 1291, with a plenary review standard for dismissals under Rule 12(b)(6), accepting all well-pled factual allegations as true to determine possible relief.

In the discussion section, the document references the doctrine of discovery, which grants discovering nations fee title to land while acknowledging the aboriginal right of occupancy. It indicates that such rights can only be extinguished with the sovereign's consent. The Delaware Nation contends that because the King of England was the sovereign over Tatamy's Place, Thomas Penn lacked the authority to extinguish their aboriginal title through the Walking Purchase, thereby preserving their occupancy rights.

The Delaware Nation's argument that Thomas Penn lacked sovereign authority to extinguish aboriginal title was not previously raised in the District Court, leading to its waiver on appeal. The Delaware Nation only referenced the Penns' accountability to the King of England in its Complaint, which did not sufficiently notify the court or defendants of its argument regarding sovereign authority. The appellate court will not entertain issues not presented at the lower court, as established in case law.

Furthermore, even if Thomas Penn had sovereign authority, the Delaware Nation contends that the Walking Purchase was fraudulent, asserting that fraud cannot extinguish aboriginal title. However, the court clarified that the manner of extinguishment involves political rather than justiciable issues, and the justness of such actions is not subject to judicial review.

For extinguishment to occur, the sovereign must clearly intend to revoke Indian occupancy rights, which must be evident from the legal instruments or context. The District Court concluded that the Delaware Nation's Complaint indicated Thomas Penn intended to extinguish its land claims through the Walking Purchase, which contradicts any later assertions of lack of intent. The Complaint stated that Thomas Penn needed to sell tribal land to pay creditors, indicating a clear intent to extinguish rights in Tatamy's Place, further supported by historical records showing that if the Delaware Nation retained aboriginal title, a patent to Tatamy would not have been necessary.

The Delaware Nation contends that it can pursue a claim under the Nonintercourse Act regarding Tatamy's Place, despite Thomas Penn's alleged extinguishment of its aboriginal title, based on its fee title acquired when the Proprietors granted Tatamy's Place to Chief Tatamy as a tribal representative. However, the claim fails because the Proprietors granted the land to Chief Tatamy in his individual capacity, not as a tribal agent. The Nonintercourse Act stipulates that any conveyance of land from an Indian tribe is invalid unless made by treaty or convention. To establish a violation of the Act, the Delaware Nation must prove that it is an Indian tribe, the land is tribal, there was no consent for alienation, and the trust relationship with the U.S. remains intact. The Nation argues that Tatamy's Place is tribal land due to its fee title, but the 1741 land patent indicates otherwise, as it specifically conveyed the land to Chief Tatamy and his heirs, not to the tribe. The intent of the government, as reflected in the patent language and Provincial Council minutes, confirms that the land was granted solely to Chief Tatamy. The Delaware Nation's argument regarding the Lenni Lenape's view on land ownership is deemed unpersuasive, as the subjective intentions of the grantee do not influence statutory interpretation. The court finds the terms of the land patent unambiguous and concludes that the Delaware Nation's claim under the Nonintercourse Act fails because Tatamy's Place is not tribal land. Consequently, the court affirms the District Court's dismissal of the Delaware Nation's Complaint, stating that its aboriginal rights were extinguished in 1737 and that fee title was granted solely to Chief Tatamy.

For this appeal, the Lenni Lenape and the Delaware Nation are considered synonymous. Courts can reference public records, complaint exhibits, and authentic documents attached to a motion to dismiss, as established in Pension Benefit Guar. Corp. v. White Consol. Indus. Inc. The term "proprietor" refers to an individual with legal rights or exclusive title to property. William Penn's second wife became the Proprietor of Pennsylvania following his stroke in 1712, and upon her death in 1727, his descendants inherited the title. Thomas Penn misrepresented a land agreement to the Lenni Lenape, leading them to cede 1,200 square miles based on a forged document. The Minutes of the Provincial Council, a public record under Pennsylvania law, are relevant to the court’s consideration in this case. The Trade and Intercourse Act of 1799 invalidates land transactions with Native American tribes unless made through treaties. Some defendants argue for dismissal based on laches, acquiescence, and impossibility, referencing City of Sherrill v. Oneida Nation of New York; however, the court finds the Delaware Nation's claims fail on merits, rendering these arguments unnecessary. Moreover, the Delaware Nation's claim that their sovereign authority could not be delegated by the King was not previously raised and lacks an exceptional circumstance for consideration. The court notes that while there are limited conditions for addressing unraised issues, the Delaware Nation does not present a qualifying exceptional circumstance.

The Delaware Nation references a case from the Western District of New York, Seneca Nation of Indians v. New York, to support its claim that aboriginal title can only be extinguished through war, physical dispossession, or treaty, but acknowledges that this case does not serve as controlling precedent and does not address the nonjusticiable nature of sovereign actions regarding purchases or treaties with Indian entities. The District Court rejected the Delaware Nation's argument that the 1738 and 1741 patents revived their aboriginal title, affirming that once extinguished, aboriginal title cannot be revived, despite later acquisitions by original title holders. The Delaware Nation clarifies that it asserts dual interests in Tatamy's Place: aboriginal title and fee title, rather than a revival of rights through patent grants. The court noted that it has not determined if the Indian Nonintercourse Act applies to land rendered alienable by Congress after the extinguishment of aboriginal title. The Delaware Nation cites Mashpee Tribe v. Watt to illustrate collective conveyances to tribes, but the case indicates that such grants typically involved a chief acting on behalf of the tribe, without evidence of individual grants intending to benefit the entire tribe. The court highlights that while the complaint mentions communal land ownership, specific paragraphs refer to individual ownership, particularly noting that Chief Tatamy's fee simple ownership is well-documented. Lastly, Judge Roth indicates that the Nonintercourse Act claim would fail because the Delaware Nation did not identify a specific land conveyance violating the Act or demonstrate an issue in the title chain occurring after the Act's enactment.