Walking Purchase


The Walking Purchase was an alleged 1737 agreement between the Penn family, the original proprietors of the Province of Pennsylvania in the colonial era, and the Lenape native Indians. By it the Penn family and proprietors claimed an area of 1,200,000 acres along the northern reaches of the Delaware River at the northeastern boundary between the Province of Pennsylvania and the West New Jersey area to the east of the Province of New Jersey and forced the Lenape to vacate it. The Lenape appeal to the Iroquois Indian tribe further north for aid on the issue was refused.
In the legal suit / court case of Delaware Nation v. Pennsylvania, the Delaware nation and its descendants in the 21st century claimed of land included in the original so-called "purchase" in 1737, but the U.S. District Court granted the Commonwealth'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 several appealed actions made through several levels of the United States courts of appeals. The Supreme Court of the United States refused to hear the case which had the effect of upholding the lower appeals courts' decision.

History

Founder of the Colony William Penn in 1681, enjoyed a reputation for fair-dealing with the Lenape. However, his heirs, John Penn and Thomas Penn, abandoned many of the elder father Penn's moderate practices. In 1736, they claimed a deed from 1686 by which the Lenape promised to sell a tract beginning at the junction of the upper Delaware River and the tributary Lehigh River and extending as far west as a man could walk in a day and a half, later to become known as the "Walking Purchase" or the Walking Treaty of 1737. This document may have been an unsigned, unratified treaty, or even an outright forgery. The Penns' agents began selling land in the Lehigh Valley in the disputed area along the Lehigh River to colonists while the Lenape still inhabited the area.
To allay the Lenapes' misgivings and suspicions, Penn Land Office Agent and provincial secretary, James Logan, produced a map incorrectly misrepresenting the farther Lehigh River as the relatively closer Tohickon Creek, and including a dotted line showing a seemingly reasonable path that the "walkers" would take. Satisfied that the land in question was not so terrible a price to honor the old deed, the Lenape finally signed.
According to the popular account, Lenape leaders assumed that about 40 miles was the longest distance that could be covered under these conditions. Provincial Secretary Logan hired the three fastest runners in the colony, Edward Marshall, Solomon Jennings and James Yeates, to run on a prepared trail. They were supervised during the "walk" by the Sheriff of Bucks County Timothy Smith. The walk occurred on September 19, 1737; only Marshall finished, reaching the modern vicinity of present-day Jim Thorpe, Pennsylvania, 70 miles away. At the end of the walk, Sheriff Smith drew a perpendicular line back toward the northeast, and claimed all the land east of these two lines ending at the Delaware River.
This resulted in an area of 1,200,932 acres, roughly equivalent to the size of Rhode Island, located in the modern seven counties of eastern Pennsylvania as: Pike, Monroe, Carbon, Schuylkill, Northampton, Lehigh and Bucks.
The Delaware leaders appealed for assistance to the Iroquois confederacy tribe to the north, who claimed hegemony over the Delaware. The Iroquois leaders decided that it was not in their best interest politically to intervene on behalf of their southern neighbors the Delaware. Pennsylvania provincial secretary James Logan had already made a deal with the Iroquois to support the colonial side. As a result, the Lenape had to soon vacate the Walking Purchase lands.
Chief Lappawinsoe and other Lenape leaders continued to protest the arrangement, as the Lenape were forced into the Shamokin and Wyoming River valleys, already crowded with other displaced tribes. Some Lenape later moved further west into the Ohio Country and the southern and western claims of the Kingdom of France in their territory of New France, west of the French Fort Duquesne at the "Forks of the Ohio". Because of the Walking Purchase, the Lenape grew to distrust the Pennsylvania government, and its once good reputation with the various tribes begun by the wise and peaceful William Penn was lost forever.

''Delaware Nation v. Pennsylvania''

District Court (2004)

In 2004, the Delaware Nation filed suit against Pennsylvania in the United States District Court for the Eastern District of Pennsylvania, seeking 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:
The District Court recounted its understanding of the facts of the Walking Purchase:
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 is nonjusticiable, including in the case of fraud. 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 U.S. Court of Appeals for the Third Circuit affirmed the decision of the District Court. The Third Circuit upheld 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. 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:
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 declined to hear the case on appeal.