Pennsylvania judge rules against tribe on claim that could have led to casino

PHILADELPHIA (AP) _ An Oklahoma Indian tribe that says it was swindled out of land in Pennsylvania by William Penn's son isn't legally entitled to get 315 acres of it back, even if its claims are

Friday, December 3rd 2004, 6:01 am

By: News On 6

PHILADELPHIA (AP) _ An Oklahoma Indian tribe that says it was swindled out of land in Pennsylvania by William Penn's son isn't legally entitled to get 315 acres of it back, even if its claims are true, a federal judge ruled.

The tribe filed its claim for the land near Easton as part of a plan to open a casino in Pennsylvania.

In an unusual opinion based on colonial-era records and legal standards, U.S. District Judge James McGirr Kelly ruled Wednesday that Thomas Penn had king-like powers that had been granted to his father, the state's founder, by the English crown. Whether he was a crook or not, Thomas Penn was free to take Indian land any way he saw fit.

``However vile plaintiff chooses to depict the events of the Walking Purchase,'' Kelly wrote, referring to the 1737 deal that cost the tribe its territory, ``Thomas Penn's justness cannot be questioned and the outcome in this matter cannot change.''

He said that as Pennsylvania's sovereign, Penn had ``sweeping authority'' to extinguish the tribe's aboriginal title to its land, and there was little its ancestors could do about it centuries later.

An attorney for the tribe vowed to appeal.

``What the court is saying here is that even if they essentially screwed the Indians up and down, there is no remedy. And we believe that is contrary to 50 years of Supreme Court law,'' said attorney Steven A. Cozen. ``We've had our Indian law experts look at it, and they are shocked.''

The suit argued that to facilitate the Walking Purchase, Penn falsely told the chiefs of the Lenape tribe that their ancestors had agreed, decades ago, to give the colonists title to as much Indian land as they could cover in a day-and-a-half's walk.

The chiefs agreed, thinking any such concession would be small. Penn then had workers clear paths through the forest and hired the fastest runners he could find to cover as much ground as possible.

When the ``walk'' was over, the Lenape, also known as the Delaware, had lost 1,200 square miles.

The descendants of the tribe, now federally recognized and based in modern-day Oklahoma, have claimed title to 315 acres of that ancestral land, now occupied by occupied by businesses including Crayola crayon maker Binney & Smith and 25 homes.

The Delaware Nation, of Anadarko, Okla., argued in its lawsuit that since its land was taken by deception, its rights to it were never legally relinquished.

The Delaware Nation and the Delaware Tribe of Indians, of Bartlesville, Okla., which was not a plaintiff in the lawsuit, in May 2003 announced their intentions to pursue gambling rights in Pennsylvania.

Both are federally recognized Indian tribes, which are permitted under federal law to establish gambling venues on tribal lands to which they have valid claims.