Friday, May 05, 2006

Wither the Eastern Land Claims?

The Third Circuit affirmed the rejection of the Delaware Nation's Pennsylvania land claims. Excerpts:

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.


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.


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