The Walking Purchase and the Dismissal of the Delaware Nation v. Commonwealth: Legal Institutions as Instruments of the Settler State

by Noelle Iati

In 2004, the Delaware Nation sued the owners of over 300 acres of land in the “Forks” region of Northampton County, Pennsylvania, attempting to reclaim possession. The land, they claimed, was tribal land, obtained by Europeans through a fraudulent transaction, then granted to a Native man named Tunda “Moses” Tatamy, and then resold upon his death by Pennsylvania land speculators with no right to do so. The area, called “Tatamy’s Place,” was the right size and in an ideal location for the Delaware Nation to build a casino operation in the 21st century, which could provide desperately needed funds to improve the lives of Delaware people and the independence of the Delaware Nation. When the case made it to federal court, it was dismissed. The judge, James McGirr Kelly, ruled that despite the fraudulent and illegal transactions by which the land became part of the Commonwealth of Pennsylvania, the Delaware’s aboriginal title had been extinguished. Aboriginal title, the inherent right of Indigenous peoples to inhabit their land, could be extinguished by any sovereign regardless of how they obtained the land, as long as acquiring the land was intentional. Clearly, this gives invading settler-colonial powers a sweeping authority to take whatever land they choose, while removing the ability of Native people to use nearly any argument to reclaim stolen land. This case epitomizes the relationship between settler legal institutions and the land claims of sovereign Native nations, showing how settler law is an instrument for the continued dispossession of Native people. [1]
I was aware from the beginning of my research how carefully I would have to balance my analysis with consideration for Native voices. Originally, I intended to research the migration of the Lenape Nation, on whose land my family has lived all my life, but who had always been described to me as simply gone. My questions were only: where are the Lenape now? Why do we talk about them as if they have been eliminated?
I kept failing to answer the question of what my research on Lenape migration could actually do for anyone besides myself, including Lenape people themselves. Then, I discovered the Delaware Nation v. Commonwealth of Pennsylvania case, and decided to shift gears. In exposing the structural weapon that is the settler legal system (and it is a weapon, its shortcomings are not just flaws), I could learn about law, while also hopefully doing some further good in exposing these truths to others. It is this question—what can this research do for marginalized people?—that social scientists often fail to answer in their projects.
Legal documents are incredibly useful as historical documents for one main reason: they are intended to be as concise as possible. All of the information inside a court’s opinion is information which the judge writing the opinion felt was essential to understanding his decision, even if an outside reader cannot see the connection. Therefore, legal documents can tell historians a good deal about deeply ingrained and even subconscious cultural assumptions prevalent at the time they were written. Even though the Del. Nation v. Commonwealth case was dismissed in the end, clues between the lines of the document reveal more about the historical moment and historical patterns than any affirmative or negative decision.
The United States of America was built on the dispossession of Native people, but this dispossession is not just a relic of the past. The U.S. is a settler-colony—and settler-colonialism is an ongoing process. The settler state must consistently affirm and reaffirm itself, as long as Indigenous peoples exist to challenge its claims to land, governance, and sovereignty in the region. Cases such as Delaware Nation v. Commonwealth show that the United States is not finished removing Native people from the landscape, nor are Native people finished resisting their removal. While narratives of Native complacency and benevolent settlers can obscure the extent to which settlers once did and still commit atrocious violence against Indigenous people for material gain, Native accounts expose the falsehood inherent in these narratives. When Native accounts are set beside the Delaware Nation v. Commonwealth of Pennsylvania opinion document, and the language and assumptions therein, it is glaringly obvious that settler-colonialism and its historical justifications have not died. In 2004, as in 1737, as in 1686, settlers circulated and internalized ideas about civilization, hierarchy, property ownership, law, and religion that designate Indigenous peoples as lesser, such that white settlers have an inherent right to their land, resources, and bodies.
Law in the settler state, while purporting to be about justice for all, is an instrument of domination and a tool for the continued oppression and dispossession of Native peoples. It is the foundation upon which the state’s legitimacy sits, and therefore the weapon utilized to destroy Native sovereignty and land claims. The settler state cannot exist without its legal system because it cannot exist without the complete removal of all Native land claims whatsoever. Therefore, while Americans trust the legal system to support them when an injustice is done—such as their property being stolen—Indigenous people cannot successfully seek relief for hundreds of years of property theft, including that at Tatamy’s Place in the Forks of Pennsylvania.

Footnotes

[1] Del. Nation v. Commonwealth (United States District Court for the Eastern District of Pennsylvania November 30, 2004), United States, Nexis Uni 24178.

Noelle Iati (she/they) is a master’s candidate in the Graduate Program in Women’s and Gender History at Sarah Lawrence College writing their thesis on sexual violence against North American Indigenous women during land acquisition campaigns in the 19th century. They have lived in Lenapehoking since the day they were born and are currently based in Brooklyn.

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