                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             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Precedential or Non-Precedential: Precedential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




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"Delaware Nation v. Comm of PA" (2006). 2006 Decisions. Paper 1010.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1010


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                 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
      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


                             2
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




                             3
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




1
For purposes of this appeal, the Lenni Lenape and the Delaware
Nation are synonymous.

                               4
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




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
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


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
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



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
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 well-
pled 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


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
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


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
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


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
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


10
  Against 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
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


11
  The 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
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



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.
12
   See, 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
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.


13
  To 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
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


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”).
14
 Paragraph 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.”
15
 In 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
Tatamy – not to the tribe as a collectivity. We will thus affirm
the District Court's dismissal of the Delaware Nation's
Complaint.




                              16
