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Delawares file federal lawsuit to pursue gaming

FORKS TOWNSHIP, Pa. - As the state General Assembly prepares to consider legislation authorizing slot machines to supplement its education budget, the Delaware Nation of Anadarko, Okla. took a first step toward having land or an alternative taken into federal trust to authorize unregulated and untaxed gaming. On Jan. 15, it filed a land claim for 315 acres of ancestral land in Forks Township, of which they say they were wrongfully dispossessed more than 200 years ago.

"The Delawares remain committed to working cooperatively with state officials to secure their right to game in Pennsylvania," said Stephen A. Cozen, a Philadelphia attorney representing the Delaware Nation and the Delaware Tribe in Bartlesville. "But it is also clear that the filing of the federal land claim is necessary to ensure that these rights are protected."

Defendants are Gov. Edward G. Rendell, the Commonwealth of Pennsylvania and the individual and corporate property owners who currently occupy the land, including Binney & Smith, the corporate parent of Crayola Crayons.

The land, located above the western branch of the Delaware River, was owned by Lenape Chief Moses Tandy Tatamy, an ancestor of the Delawares, who received it from the descendants of William Penn on April 28, 1738.

"The title was never transferred out of Chief Tatamy's name," said attorney Kevin Barber with Cozen O'Connor, the law firm representing the nation. "There is no termination date on the original land grant and no Congressional approval for its transference."

Barber said records show that about 40 years after the deed, Tatamy's neighbors, Henry and Mattias Strechen, purported to transfer the property to William Allen.

"But there is nothing of record showing that Allen had interest in that land," said Barber.

The original deed gifted Tatamy and the "lives of his Child or Children to all generations full and free crave and liberty for him and them to possess use occupy and enjoy." It also stated that if "he or they shall at any time by the space of one whole year desert or leave the said Tract of Land void and untilled that then the same and every Part thereof is hereby reserved to revert to us and our Heirs as of our Proper Estate."

According to historical documents, Tatamy's deed was declared void when he cancelled it in 1741.

At the time Tatamy made this request, historians speculate that he wanted to establish that his land was no longer a gift from John, Thomas and Richard Penn but property he owned. Possibly he no longer trusted the Penns after the 1737 Walking Purchase Hoax that cheated the Lenape out of 2.7 million acres of prime territory. Because it was legally declared null and void, there are no inheritable rights by any descendants, according to the documents.

Tatamy purchased the land in 1741 and 1742 for 48 pounds 16 shillings and 5 pence. The conditions on this land held the "quit rent" clause which required an annual fee of "one-half penny sterling for every acre" to be paid on the land by March 1. If not paid within a 90-day grace period, the land reverted back to the Penns or their successors.

Tatamy did not remain on his land in Forks Township. Soon after an Indian uprising began on Nov. 24, 1755, Tatamy left his property and never returned. His statement is found in "Papers relating to the Friendly Association (Quakers) Vol. D-11 and in "A Delaware Indian Symposium" edited by Herbert C. Kraft [Harrisburg: The Pennsylvania Historical and Museum Commission, 1974; Chapter 3, "Moses (Tunda) Tatamy, Delaware Indian Diplomat," by William A. Hunter]:"I thought it no longer safe for me to continue on my Place in the Forks about three miles from Easton, but went immediately on the other side of the river and lived sometime with Col. Anderson ? I left Anderson's, being sent for to the Treaty at Croswicks (January 8-9, 1756) after which I was settled for sometime at Maidenhead (now Lawrenceville, N.J.) from which I removed to Pennsbury."

Attorneys for the Anadarko nation, a nation claiming to be a restored tribe, said the claim is supported by Professor Stephen Dow Beckham at Oregon's Lewis & Clark College. Beckham, a certified witness in federal court cases involving Indian treaty rights, said the 1790 Indian Trade and Intercourse Act established that "treaty or convention entered into pursuant to the Constitution" was the only legal process that title to land held by Indians could be sold.

"Any sale or transfer of real property owned by Indians that was not retitled by an act of Congress was invalid as a matter of law," Beckham said. "No such action occurred leaving the land title unimpaired in favor of Tatamy's successor."

A favorable court ruling would be the Delaware Nation's first step toward operating casinos in Pennsylvania that would include Class III gaming such as slot machines and table games as well as Class II gaming such as bingo-based slot machines and certain card games.

The Delaware Tribe of Bartlesville, Okla. is also seeking to secure Class II gaming rights in Pennsylvania. If they fit the definition of a "restored tribe," they would not need to prove a land claim to secure the right to gaming under federal law that provides a special exception that allows the tribe to conduct gaming on all restored land, including land in Pennsylvania the tribe may purchase and place into trust.