Walking Purchase
Encyclopedia
Pennsylvania
The Commonwealth of Pennsylvania is a U.S. state that is located in the Northeastern and Mid-Atlantic regions of the United States. The state borders Delaware and Maryland to the south, West Virginia to the southwest, Ohio to the west, New York and Ontario, Canada, to the north, and New Jersey to...
, and the Lenape
Lenape
The Lenape are an Algonquian group of Native Americans of the Northeastern Woodlands. They are also called Delaware Indians. As a result of the American Revolutionary War and later Indian removals from the eastern United States, today the main groups live in Canada, where they are enrolled in the...
(also known as the Delaware). By it the Penn family and proprietors claimed an area of 1,200,000 acres (4,860 km²) and forced the Lenape to vacate it. The Lenape appeal to the Iroquois for aid on the issue was refused.
In Delaware Nation v. Pennsylvania (2004), the current nation claimed 314 acres (1.3 km²) included in the original purchase, but the US District Court
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
granted the Commonwealth
Commonwealth
Commonwealth is a traditional English term for a political community founded for the common good. Historically, it has sometimes been synonymous with "republic."More recently it has been used for fraternal associations of some sovereign nations...
's motion to dismiss. It ruled that the case was nonjusticiable, although it acknowledged that Indian title appeared to have been extinguished by fraud. This ruling held through the United States courts of appeals
United States courts of appeals
The United States courts of appeals are the intermediate appellate courts of the United States federal court system...
. The US Supreme Court refused to hear the case.
History
William PennWilliam Penn
William Penn was an English real estate entrepreneur, philosopher, and founder of the Province of Pennsylvania, the English North American colony and the future Commonwealth of Pennsylvania. He was an early champion of democracy and religious freedom, notable for his good relations and successful...
's heirs, John Penn
John Penn ("the American")
John Penn was a proprietor of colonial Pennsylvania. He was the eldest son of the colony's founder, William Penn, by his second wife, Hannah Callowhill Penn...
and Thomas Penn
Thomas Penn
Thomas Penn was a son of William Penn, founder of the Province of Pennsylvania, the English North American colony that became the U.S. state of Pennsylvania. Thomas Penn was born in Bristol, England after his father returned there in 1701 because of financial difficulties...
, claimed a deed from the 1680s by which the Lenape promised to sell a tract beginning at the junction of the Delaware River
Delaware River
The Delaware River is a major river on the Atlantic coast of the United States.A Dutch expedition led by Henry Hudson in 1609 first mapped the river. The river was christened the South River in the New Netherland colony that followed, in contrast to the North River, as the Hudson River was then...
and Lehigh River
Lehigh River
The Lehigh River, a tributary of the Delaware River, is a river located in eastern Pennsylvania, in the United States. Part of the Lehigh, along with a number of its tributaries, is designated a Pennsylvania Scenic River by the state's Department of Conservation and Natural Resources...
(near modern Wrightstown
Wrightstown Township, Pennsylvania
Wrightstown Township is a township in Bucks County, Pennsylvania, United States. The population was 2,995 at the 2010 census.-Geography:According to the United States Census Bureau, the township has a total area of 10.0 square miles , of which, 9.9 square miles of it is land and...
) and extending as far west as a man could walk in a day and a half. This document may have been an unsigned, unratified treaty, or even an outright forgery (Encyclopædia Britannica
Encyclopædia Britannica
The Encyclopædia Britannica , published by Encyclopædia Britannica, Inc., is a general knowledge English-language encyclopaedia that is available in print, as a DVD, and on the Internet. It is written and continuously updated by about 100 full-time editors and more than 4,000 expert...
refers to it as a "land swindle"). The Penns' agents began selling land in the Lehigh Valley
Lehigh Valley
The Lehigh Valley, known officially by the United States Census Bureau as the Allentown-Bethlehem-Easton, PA-NJ metropolitan area and referred to locally as The Valley and A-B-E, is a metropolitan region consisting of Lehigh, Northampton, Berks, and Carbon counties in eastern Pennsylvania and...
to colonists while the Lenape still inhabited the area.
According to the popular account, Lenape leaders assumed that about 40 miles (60 km) was the longest distance that could be covered under these conditions. Provincial Secretary James Logan
James Logan (statesman)
James Logan , a statesman and scholar, was born in Lurgan, County Armagh, Ireland of Scottish descent and Quaker parentage. In 1689, the Logan family moved to Bristol, England where, in 1693, James replaced his father as schoolmaster...
, the legend continues, hired the three fastest runners in the colony, Edward Marshall, Solomon Jennings and James Yeates, to run on a prepared trail. This occurred on September 19, 1737; only Marshall finished, reaching the modern vicinity of present-day Jim Thorpe, Pennsylvania
Jim Thorpe, Pennsylvania
Jim Thorpe is a borough in Carbon County, Pennsylvania, USA. The population was 4,804 at the 2000 census. It is the county seat of Carbon County. The town has been called the "Switzerland of America" due to the picturesque scenery, mountainous location, and architecture; as well as the "Gateway to...
, 70 miles (113 km) away.
This resulted in an area of 1,200,000 acres (4,860 km²), roughly equivalent to the size of Rhode Island
Rhode Island
The state of Rhode Island and Providence Plantations, more commonly referred to as Rhode Island , is a state in the New England region of the United States. It is the smallest U.S. state by area...
, located in the modern counties of: Pike
Pike County, Pennsylvania
-National protected areas:* Delaware Water Gap National Recreation Area * Middle Delaware National Scenic River * Upper Delaware Scenic and Recreational River -Demographics:...
, Monroe
Monroe County, Pennsylvania
-National protected areas:* Delaware Water Gap National Recreation Area * Middle Delaware National Scenic River -Demographics:As of the census of 2010, there are 176,567 people, 49,454 households, and 36,447 families residing in the county. The population density was 228 people per square mile...
, Carbon
Carbon County, Pennsylvania
As of the census of 2000, there were 58,802 people, 23,701 households, and 16,424 families residing in the county. The population density was 154 people per square mile . There were 30,492 housing units at an average density of 80 per square mile...
, Schuylkill
Schuylkill County, Pennsylvania
-Notable people:*Boxing heavyweight great Muhammad Ali had his training camp in Deer Lake.*Charles Justin Bailey, commanding general of the 81st Division in World War I, was born in Tamaqua on June 21, 1859....
, Northampton
Northampton County, Pennsylvania
As of the 2010 census, the county was 86.3% White, 5.0% Black or African American, 0.2% Native American or Alaskan Native, 2.4% Asian, 0.0% Native Hawaiian, 2.2% were two or more races, and 3.8% were some other race. 10.5% of the population were of Hispanic or Latino ancestry.As of the census of...
, Lehigh
Lehigh County, Pennsylvania
-Climate:Most of the county's climate is considered to fall in the humid continental climate zone. Summers are typically hot and muggy, fall and spring are generally mild, and winter is cold. Precipitation is almost uniformly distributed throughout the year....
and Bucks
Bucks County, Pennsylvania
- Industry and commerce :The boroughs of Bristol and Morrisville were prominent industrial centers along the Northeast Corridor during World War II. Suburban development accelerated in Lower Bucks in the 1950s with the opening of Levittown, Pennsylvania, the second such "Levittown" designed by...
.
The Delaware leaders appealed for assistance to the Iroquois confederacy
Iroquois
The Iroquois , also known as the Haudenosaunee or the "People of the Longhouse", are an association of several tribes of indigenous people of North America...
, who claimed hegemony over the Delaware. The Iroquois leaders decided that it was not in their political best interest to intervene on behalf of the Delaware. James Logan had already made a deal with the Iroquois to support the colonial side. As a result, the Lenape had to vacate the Walking Purchase lands.
Chief Lappawinsoe
Lappawinsoe
Lappawinsoe was a Lenape-Delaware chief. He sold the land of his tribe to Thomas Penn, the son of William Penn, through the Walking Purchase agreement.-Source:*...
and other Lenape leaders continued to protest the arrangement, as the Lenape were forced into the Shamokin
Great Shamokin Path
The Great Shamokin Path was a major Native American trail in the U.S. State of Pennsylvania that ran from the native village of Shamokin along the left bank of the West Branch Susquehanna River north and then west to the Great Island...
and Wyoming
Wyoming Valley
Wyoming Valley is a region of northeastern Pennsylvania. As a metropolitan area, it is also known as the Scranton/Wilkes-Barre area, after its principal cities, Scranton and Wilkes-Barre....
valleys, already crowded with other displaced tribes. Some Lenape later moved west into the Ohio Country
Ohio Country
The Ohio Country was the name used in the 18th century for the regions of North America west of the Appalachian Mountains and in the region of the upper Ohio River south of Lake Erie...
. Because of the Walking Purchase, the Lenape grew to distrust the Pennsylvania government, and its once good reputation with the various tribes was lost forever.
District Court (2004)
Delaware Nation
The Delaware Nation, sometimes called the Absentee or Western Delaware, is one of two federally recognized tribe of Delaware Indians, along with the Delaware Indians based in Bartlesville, Oklahoma...
filed suit against Pennsylvania in the United States District Court for the Eastern District of Pennsylvania
United States District Court for the Eastern District of Pennsylvania
The United States District Court for the Eastern District of Pennsylvania is one of the original 13 federal judiciary districts created by the Judiciary Act of 1789...
, seeking 314 acres (1.3 km²) included in the 1737 Walking Purchase and patented in 1741, which was known as "Tatamy's Place." The court granted the Commonwealth's motion to dismiss. According to the District Court:
- Penn's government and practices apparently differed sharply from the Puritan-led governments of the other American colonies. The most striking difference was Penn's ability to cultivate a positive relationship based on mutual respect with the Native Americans inhabiting the province. While the Puritans "stole from the Indians ... Penn achieved peaceful relations with the Indians."
The District Court recounted its understanding of the facts of the Walking Purchase:
- Penn's sons were less interested than their father in cultivating a friendship with the Lenni Lenape. Thomas Penn, in particular, is reportedly responsible for executing The Walking Purchase of 1737, pursuant to which Thomas Penn approached the Lenni Lenape Chiefs and “falsely represented an old, incomplete, unsigned draft of a deed as a legal contract.” ( Compl. ¶ 38.) Thomas Penn represented to the Lenni Lenape Chiefs that some fifty years prior, the ancestors of the Lenni Lenape had signed documents stating that the “land to be deeded to the Penns was as much as could be covered in a day-and-a-half's walk.” ( Id.) Believing that their forefathers had made such an agreement, the Lenni Lenape Chiefs agreed to the terms of the deed and consented to the 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. The Chiefs were not aware that they were about to lose a significant amount of land. Unbeknownst to the Lenni Lenape, Thomas Penn took measures to ensure that the distance covered by his “walkers” would be as large as possible. Among other things, Thomas Penn had a straight path cleared through the forests and hired three of the fastest runners in the province. “[H]e and his agents spent weeks mapping their route-which went northwest rather than north as the treaty specified-hacking trails out of the woods.” ( Id. ¶ 39.) In addition, Thomas Penn promised that the fastest runner would receive five pounds sterling and 500 acres of land. In the end, the runners of the Walking Purchase of 1737 procured 1,200 square miles [more than 1 million square acres] of Lenni Lenape land in Pennsylvania. Included in the land procured was land commonly referred to as the “Forks of the Delaware,” which contained the parcel of land at the center of this dispute, “Tatamy's Place.”
- The Lenni Lenape complained to the King of England about the execution of the “walk” by Penn and his agents to no avail. In response, the Lenni Lenape began their movement westward in compliance with their ancestors' purported agreement to the terms of the Walking Purchase's deed. Over a hundred years later, experts examining this deed concluded that the deed was a forgery. As a result of the Walking Purchase, members of the Lenni Lenape tribe, now recognized as The Delaware Nation, were segregated into pockets or parcels of land surrounded by non-tribal settlers. Such is what occurred with respect to a grant of land to Chief Tetamy and his band of Delawares.
The Delaware conceded that Thomas Penn had "sovereign authority," but challenged the transaction on the ground that it was fraudulent. The court held that the justness of the extinguishment of aboriginal title
Aboriginal title
Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism...
is nonjusticiable, including in the case of fraud
Fraud
In criminal law, a fraud is an intentional deception made for personal gain or to damage another individual; the related adjective is fraudulent. The specific legal definition varies by legal jurisdiction. Fraud is a crime, and also a civil law violation...
. Because the extinguishment occurred prior to the passage of the first Indian Nonintercourse Act in 1790, that Act did not avail the Delaware.
Circuit Court (2006)
The Third CircuitUnited States Court of Appeals for the Third Circuit
The United States Court of Appeals for the Third Circuit is a federal court with appellate jurisdiction over the district courts for the following districts:* District of Delaware* District of New Jersey...
affirmed. The Circuit affirmed the holding that aboriginal title may validly be extinguished by fraud, and further held that the tribe had waived the issue of whether Penn was actually a sovereign purchaser below. Moreover, the Circuit held that any grants to the tribe subsequent to the extinguishment could not re-establish aboriginal title. Therefore, the Circuit did not consider the merits of the tribe's argument that:
- The Delaware Nation claims in its 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.
Specifically, the Circuit found it insufficient that the complaint had alleged that Penn was "accountable directly to the King of England."
The U.S. Supreme Court denied certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
.