2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-4-2006

Delaware Nation v. Comm of PA

Precedential or Non-Precedential: Precedential

Docket No. 04-4593

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

 

No. 04-4593

 

 

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
2

 

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

 

Argued November 8, 2005

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

(Opinion Filed May 4, 2006)

 

Stephen A. Cozen (Argued)

Thomas B. Fiddler, Esquire

Thomas G. Wilkinson, Jr., Esquire

Cozen & O’Connor

1900 Market Street, 4th Floor

Philadelphia, PA 19103

Counsel for Appellant

Benjamin S. Sharp, Esquire (Argued)

Donald C. Baur, Esquire

Perkins Coie

607 14th Street, N.W.., Suite 800

Washington, DC 20005

David F. B. Smith, Esquire (Argued)

Ryberg & Smith

1054 31st Street, N.W.

Washington, D.C. 20007

Mark A. Kearney, Esquire (Argued)

Elliott, Reihner & Siedzikowski

925 Harvest Drive, Suite 300

P.O. Box 3010 

Blue Bell, PA 19422
3

Andrew J. Bellwoar, Esquire (Argued)

Siana, Bellwoar & McAndrew

941 Pottstown Pike, Suite 200

Chester Springs, PA 19425

Raymond J. DeRaymond, Esquire

DeRaymond & Smith

717 Washington Street

Easton, PA 18042

Darryl J. May, Esquire

Ballard, Spahr, Andrews & Ingersoll

1735 Market Street, 51st Floor

Philadelphia, PA 19103

William P. Leeson, Esquire

Leeson, Leeson & Leeson

70 East Broad Street

P.O. Box 1426

Bethlehem, PA 18016

Blair H. Granger, Esquire

Blair H. Granger & Associates

1800 East Lancaster Avenue

Paoli, PA 19301

Thomas L. Walters, Esquire

Lewis and Walters

46 South Fourth Street

Easton, PA 18042

Counsel for Appellees

 

OPINION OF THE COURT

 
1

For purposes of this appeal, the Lenni Lenape and the Delaware

Nation are synonymous.

4

ROTH, Circuit Judge:

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.”1

 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
2

 Courts may consider matters of public record, exhibits attached

to the complaint, and undisputedly authentic documents attached

to a motion to dismiss. See Pension Benefit Guar. Corp. v.

White Consol. Indus. Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).

3

 A proprietor is “[o]ne who has the legal right or exclusive title

to property, business, etc.” BLACK’S LAW DICTIONARY 1220

(6th ed. 1990). 

4

 Following a stroke in 1712, William Penn’s second wife

became the Proprietor of the province until her death in 1727.

Penn’s sons and grandsons then became the Proprietors of the

territory.

5

and the public record.2 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.3

 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.4

 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
5

Thomas Penn falsely represented to the Lenni Lenape that some

fifty years earlier the Lenni Lenape Chiefs had signed a

document providing that land, which could be covered in a walk

of one-and-one-half days, was to be deeded to the Penns.

Unbeknowst to the Lenni Lenape, who had envisioned a

leisurely walk through the tangled Pennsylvania forests, Thomas

Penn had cleared a path and hired three of the fastest runners in

the territory to navigate a pre-determined path. The Lenni

Lenape ended up ceding 1,200 square miles of land. The

document later proved to be a forgery.

6

Delaware Nation.5

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
6

The Minutes of the Provincial Council were compiled and

printed pursuant to Pennsylvania law as a public record. Act of

April 14, 1838, Act No. 68, P.L. 395, § 7 (“That the Secretary

of the Commonwealth be, and he is hereby authorized and

required to continue the printing of the Minutes of the Council

of the Proprietary Government, down to the period of the

Revolution . . . and to include other public records and

documents therein mentioned . . .”) (emphasis added).

Therefore, the Minutes may be considered by the Court on a

motion to dismiss. See Pension Benefit Guar. Corp., 998 F.2d

at 1196.

7

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 call their Cousins, nor any

besides themselves and their proper families dwelling in the

same Houses with them.”6

 IV MINUTES OF THE PROVINCIAL

COUNCIL at 625.

After Chief Tatamy, the history of the title to the land is

not clear. The next record concerning Tatamy’s Place is a deed

recorded on March 12, 1803, in which Edward Shipper, as the

Executor of the Estate of William Allen, conveys the land to the

Strecher family. The deed recites a purported agreement

between the Strechers and Allen forty years prior to Allen’s

death. Nonetheless, the history fails to explain how title passed

from Chief Tatamy to William Allen or his predecessors.

The Delaware Nation’s Complaint alleges two general

theories as to why the group is entitled to recovery. First, the

Delaware Nation contends that, because Tatamy’s Place was

taken by deception via the Walking Purchase, the tribe’s

aboriginal rights were never validly extinguished. As such, the

Delaware Nation has a right of continued occupancy and use

consistent with the doctrine of discovery. Second, the Delaware

Nation, as the successor in interest to Chief Tatamy, claims fee

title to Tatamy’s Place based on the land grants from the

Proprietors. The Delaware Nation further asserts that the

subsequent alienation of fee title from Chief Tatamy violated the
7

The Trade and Intercourse Act of 1799 provides in part:

No purchase, grant, lease or other conveyance of lands,

or of any title or claim thereto, from any Indian, or nation

or tribe of Indians, within the bounds of the United

States, shall be of any validity, in law or equity, unless

the same by made by treaty or convention, entered into,

pursuant to the constitution

8

Trade and Intercourse Act of 1799. 1 Stat. 743, 746 (1799).7

On November 30, 2004, the District Court dismissed the

Complaint in its entirety for failure to state a cause of action.

The Delaware Nation, 2004 U.S. Dist. Lexis 24178; FED. R.

CIV. PROC. 12(b)(6). The District Court, having found that the

Delaware Nation admitted that Thomas Penn had the sovereign

authority to take Tatamy’s Place, ruled that Thomas Penn’s

method of acquisition, i.e. fraud, was legally irrelevant.

Moreover, the District Court found that the Nonintercourse Act

was inapplicable in this case because Tatamy’s Place did not

represent “tribal land.” The Delaware Nation appealed. 

II. Jurisdiction and Standard of Review

Our review of the grant of a motion to dismiss is plenary.

Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250 (3d

Cir. 1994). When considering an appeal from a dismissal of a

complaint pursuant to Rule 12(b)(6), we accept as true all wellpled factual allegations. Morse v. Lower Merion School

District, 132 F.3d 902, 906 (3d Cir. 1997). We examine

whether, under any reasonable reading of the complaint, the

plaintiff may be entitled to relief. Pinker v. Roche Holdings,

Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002).

The District Court exercised jurisdiction pursuant to 28

U.S.C. §§ 1331 and 1362 (“The district courts shall have

original jurisdiction of all civil actions, brought by any Indian
8

Some of the defendants urge us to dismiss the complaint

because this action is barred by the equitable doctrines of laches,

acquiescence and impossibility. These defendants cite City of

Sherrill v. Oneida Nation of New York, 544 U.S. 197 (2005),

and claim that the same considerations that led the Sherrill court

to rule against the Oneida Indian Nation are relevant here. We

need not address this argument because we find that the

Delaware Nation's claims fail on the merits.

Some of the defendants also argue that the Delaware Nation's

aboriginal title was extinguished when the tribe signed the

Treaty of Greeneville of 1795. We need not address this

argument either – or explain the treaty's provisions – because we

find that the Walking Purchase of 1737 extinguished the tribe's

aboriginal title.

9

tribe or band with a governing body duly recognized by the

Secretary of the Interior, wherein the matter in controversy

arises under the Constitution, laws, or treaties of the United

States.”). The Delaware Nation is recognized by the Secretary

of the Interior. See 67 FED. REG. 46328 (2002). We have

jurisdiction under 28 U.S.C. § 1291.

III. Discussion

A. Thomas Penn’s Extinguishment of Aboriginal

Rights8

The doctrine of discovery, which governs the relationship

between the European colonial powers and the Indians, holds

that the discovering nation takes fee title to the land, subject to

the aboriginals’ right of occupancy and use. County of Oneida

v. Oneida Indian Nation of New York State, 470 U.S. 226, 234

(1985); Johnson v. M’Intosh, 21 U.S. 543, 588 (1823) (“All our

institutions recognise the absolute title of the crown, subject

only to the Indian right of occupancy, and recognise the absolute

title of the crown to extinguish that right.”). The Indians’ right

of occupancy and use (aboriginal title) could only be

extinguished with the consent of the sovereign. County of

Oneida, 470 U.S. at 234. The Delaware Nation claims in its
9

The Delaware Nation seemed to claim at oral argument that

such sovereign authority could not be delegated by the King.

This argument, also, was not raised before the District Court.

Only in exceptional circumstances, where under the

circumstances it would be just to do so, will we consider issues

that were not raised in the district court. Wagner v. Pennwest

Farm Credit, 109 F.3d 909, 911 (3d Cir. 1997). Although the

exceptional circumstances exception has been read to apply to

situations where there has been an intervening change in law or

the lack of representation by an attorney, a general public

interest exception does exist. In Re: Gen. Datacomm Indus.

Inc., 407 F.3d 616, 634 n.13 (3d Cir. 2005). The Delaware

Nation fails, however, to articulate an exceptional circumstance.

10

appeal that the King of England – not Thomas Penn – was the

sovereign over the territory that included Tatamy’s Place.

Therefore, Thomas Penn could not extinguish aboriginal title via

the Walking Purchase and, consequently, the Delaware Nation

maintains a right of occupancy and use.

The Delaware Nation’s argument fails because the issue

of Thomas Penn’s lack of sovereign authority was not raised

before the District Court. The Delaware Nation, 2004 U.S. Dist.

Lexis 24178, * 26 (“Plaintiff does not contest that Thomas Penn

and the other Proprietors of the time maintained sovereign

authority to extinguish this aboriginal title.”). The closest the

Delaware Nation comes to raising the issue is ¶ 31 of its

Complaint, in which it notes that the Penns were “accountable

directly to the King of England.” However, this paragraph fails

to put the District Court or the defendants on notice of the

Delaware Nation’s purported argument on appeal – that Thomas

Penn lacked the sovereign authority or consent from the King of

England to extinguish aboriginal title in Pennsylvania.9

Absent exceptional circumstances, this Court will not

consider issues raised for the first time on appeal. Harris v. City

of Philadelphia, 35 F.3d 840, 845 (3d Cir. 1994). Although the

Delaware Nation now contends that it did not concede the

argument that Thomas Penn had the sovereign authority to

extinguish aboriginal title, it does not, and cannot, argue that it
10Against the aforementioned Supreme Court precedent, the

Delaware Nation offers a Western District of New York case for

the proposition that aboriginal title can only be extinguished by

(1) war or physical dispossession or (2) contract or treaty.

Seneca Nation of Indians v. New York, 206 F. Supp.2d. 448, 504

(W.D.N.Y. 2002). Seneca Nation is in no way controlling

precedent. Nor, indeed, does it help the Delaware Nation

because it does not challenge the nonjusticiable nature of the

manner in which the sovereign executes a purchase or a treaty

with an Indian entity. 

11

raised the issue before the District Court. See Houghton v.

American Guaranty Life Ins. Co., 692 F.2d 289, 294-5 (3d Cir.

1982) (noting that the issue must be brought to the attention of

the district court to be heard on appeal). Therefore, the issue is

waived.

The Delaware Nation next argues that, even if Thomas

Penn was sovereign and had the power to extinguish its

aboriginal title with the Walking Purchase, he did not do so

because the circumstances surrounding the Walking Purchase

were fraudulent, and “fraud is not a valid means to extinguish

aboriginal title.” However, the manner, method, and time of the

sovereign’s extinguishment of aboriginal title raise political, not

justiciable, issues. United States v. Santa Fe Pac. R.R. Co., 314

U.S. 339, 347 (1941). “[W]hether (extinguishment) be done by

treaty, by the sword, by purchase, by the exercise of complete

dominion adverse to the right of occupancy, or otherwise, its

justness is not open to inquiry in the courts.” Id. (emphasis

added); United States v. Alcea Band of Tillamooks, 329 U.S. 40,

46 (1946) (noting that the sovereign “possessed exclusive power

to extinguish the right of occupancy at will.”). Accordingly, the

District Court correctly held that “[p]roof of fraud is not a

material fact that would nullify Proprietory Thomas Penn’s

extinguishing act.” The Delaware Nation, 2004 U.S. Dist. Lexis

24178, * 28.10

For extinguishment to occur, the sovereign must intend

to revoke the Indians’ occupancy rights. United States v.

Gemmill, 535 F.2d 1145, 1148 (9th Cir. 1976). The intent to
11The District Court thought the Delaware Nation had argued

that the 1738 and 1741 patents “revived” the tribe's aboriginal

title. It rejected that argument, holding that aboriginal title,

“once having been extinguished, could not be revived, even if

title was thereafter acquired by those who originally possessed

12

extinguish aboriginal title must be “plain and unambiguous”

based on either the face of the instrument or surrounding

circumstances. Seneca Nation of Indians v. New York, 382 F.3d

245, 260 (2d Cir. 2004). Extinguishment cannot be lightly

implied. Santa Fe Pac. R.R. Co., 314 U.S. at 354.

The District Court held that the Delaware Nation’s

Complaint made it clear that Thomas Penn executed the

Walking Purchase intending to take from the Delaware Nation

its claim to land in Pennsylvania, including Tatamy’s Place.

The Delaware Nation, 2004 U.S. Dist. Lexis 24178, * 28-9. The

Complaint notes that Thomas Penn, in order to pay creditors,

needed to sell tribal land. To acquire such land, in the first place

Thomas Penn executed the Walking Purchase. Complaint at ¶

38. To now argue that Thomas Penn did not intend to

extinguish aboriginal title to Tatamy’s Place, which is

indisputably land covered by the Walking Purchase, contradicts

the very allegations of the Complaint. Put another way, there

are no facts or allegations in the public record or in the

Complaint which could be used to question Thomas Penn’s

intention to extinguish aboriginal rights in Tatamy’s Place.

Moreover, if the Delaware Nation still retained aboriginal title

to Tatamy’s Place, there would have been no need to grant

Tatamy the 1741 patent in fee.

B. Chief Tatamy’s Land Patents

The Delaware Nation argues that, even if Thomas Penn

did extinguish its aboriginal title to Tatamy's Place, it may

nonetheless pursue its claim under the Nonintercourse Act

because it holds fee title to Tatamy's Place. It acquired this fee

title, the tribe explains, when the Proprietors granted Tatamy's

Place to Chief Tatamy because the Chief accepted the title not

in his individual capacity, but as a representative of the tribe.11
that” title. District Court Opinion at 28 (citing Tuscarora

Nation of Indians v. Power Authority of the State of New York,

164 F. Supp. 107 (W.D.N.Y. 1958)). The Delaware Nation

clarifies in its brief that it “never asserted that . . . its rights were

. . . revived by way of the patent grants to Chief Tatamy,” but

rather that the tribe has “two parallel interests” in Tatamy's

Place: aboriginal title and fee title. Brief at 37. 

12See, e.g., Cass County, Minnesota v. Leech Lake Band of

Chippewa Indians, 524 U.S. 103, 115 n.5 (1998) (“This Court

has never determined whether the Indian Nonintercourse Act .

. . applies to land that has been rendered alienable by Congress,”

i.e., land the aboriginal title to which the sovereign has

extinguished, “and later reacquired by an Indian tribe.”).

13

Even assuming that the Nonintercourse Act applies to land

reacquired by an Indian tribe in fee after the sovereign

extinguished its aboriginal rights to the land – an issue which

appears to be unsettled,12 but which is not necessary for us to

decide here – the Delaware Nation's claim must fail because it

is clear that the Proprietors granted Tatamy's Place to Chief

Tatamy in his individual capacity, and not as an agent of the

tribe. 

As noted earlier, the Nonintercourse Act provides, in

pertinent part:

No purchase, grant, lease, or other conveyance of lands,

or of any title or claim thereto, from any Indian nation or

tribe of Indians, shall be of any validity in law or equity,

unless the same be made by treaty or convention entered

into pursuant to the Constitution. 

25 U.S.C. §177.

To establish a prima facie case for violation of the Act,

the Delaware Nation is required to allege that (1) it is an Indian

tribe, (2) the land in question is tribal land, (3) the sovereign has

never consented to or approved the alienation of this tribal land,

and (4) the trust relationship between the United States and the
13To demonstrate that conveyances to Indian tribes as collectives

were common, the tribe cites Mashpee Tribe v. Watt, 542 F.

Supp. 797, 805 (D. Ma. 1982). That case, however, notes that

the practice of a tribe's chief or head man granting land to a

non-Indian as a representative of his tribe was common. The

tribe points to no case in which land was granted to an

individual Indian in fee simple with the unexpressed intention

that that Indian's entire tribe receive the conveyance. Moreover,

there are many treaties from a later period in which the United

States, intending to grant land in fee simple to an Indian tribe,

did so by designating the tribe explicitly as the grantee, which

the Proprietors did not do here. See Cohen's Handbook of

14

tribe has not been terminated or abandoned. Seneca Nation, 382

F.3d at 258; Golden Hill Paugusett Tribe of Indians v. Weicker,

39 F.3d 51, 56 (2d Cir. 1994); Epps v. Andrus, 611 F.2d 915,

917 (1st Cir. 1979) (overruled on other grounds). 

The Delaware Nation claims that the land in question –

Tatamy's Place – is “tribal land” (element 2) because it holds fee

title to the land as a tribe. The language of the 1741 land patent

suggests otherwise.

In interpreting grants of land by the government, intent

of the government is a prominent consideration, and the

language of the grants is to be strictly construed. 3 Norman J.

Singer, Sutherland Statutory Construction §64:7 (6th ed. 2000).

The language of the 1741 patent, quoted earlier, unambiguously

conveyed land to an individual – Chief Tatamy and his heirs. It

did not convey to the tribe. It is not necessary to look beyond

the four corners of the patent, but we nonetheless note that the

minutes of the Provincial Council, also quoted above, explicitly

confirm that the Proprietors intended the land to go to Chief

Tatamy alone, and not “any other of the Delaware Indians.”

The Delaware Nation presses the argument that, even if

the Proprietors did not intend in 1741 to grant the land to the

tribe as a collective, this is how the tribe received the grant

because “the Lenni Lenape did not recognize the concept of

individual ownership of land.”13 This argument is unpersuasive.
Federal Indian Law §9.4, footnotes 22-26 and accompanying

text (quoting treaties that grant land in fee simple to, for

example, “the Wyandotts, and to their heirs forever” and “to the

Creek nation of Indians . . . and the right thus guaranteed by the

United States shall be continued to said tribe of Indians, so long

as they shall exist as a nation”). 

14Paragraph 10 of the Complaint refers generally to communal

ownership of land by the Delaware Nation, but the allegations

of succeeding paragraphs – particularly paragraphs 42, 43, 44

and 45 – all speak in terms of an individual grantee. For

example, 45 states that “Chief Tatamy's fee simple ownership of

Tatamy's Place is documented and indisputable. Neither he nor

his heirs ever divested their interest in Tatamy's Place.”

15In addition, Judge Roth would hold that the Nonintercourse

Act claim would fail even had the land in question been tribal

because the Delaware Nation failed to identify a specific land

conveyance that violated the Act or to allege that the gap in the

chain of title post-dates the Nonintercourse Act’s enactment.

15

The subjective state of mind of the grantee is not a consideration

in interpreting public land grants. Moreover, and quite notably,

the Complaint nowhere clearly alleges that Chief Tatamy

intended to receive the 1741 land patent in his capacity as

representative of the tribe.14 

None of the canons of construction that the parties urge

the court to apply (e.g., construing agreements with Indians “in

the sense in which they would naturally be understood by the

Indians,” resolving ambiguities in public land grants in favor of

the government, etc.) are applicable because the terms of the

land patent are completely unambiguous. The Delaware Nation

fails to state a claim under the Nonintercourse Act because the

land in question is not “tribal” in any sense of that word.15 IV.

Conclusion

For the foregoing reasons, we find that the Delaware

Nation's aboriginal rights to Tatamy's Place were extinguished

in 1737 and that, later, fee title to the land was granted to Chief
16

Tatamy – not to the tribe as a collectivity. We will thus affirm

the District Court's dismissal of the Delaware Nation's

Complaint.