Delaware Indian land Claims: A Historical and Legal Perspective DAVID A. EZZO Alden, New York and MICHAEL MOSKOWITZ Wantagh, New York In this paper we shall discuss Delaware Indian land claims in both a histori­ cal and legal context. The first section of the paper deals with the historical background necessary to understand the land claims filed by the Delaware. In the second part of the paper the focus is on a legal review of the Delaware land claims cases. Ezzo is responsible for the first section while Moskowitz is responsible for the second section. 1. History The term Delaware has been used to describe the descendants of the Native Americans that resided in the Delaware River Valley and other adjacent areas at the start of the 17th century. The Delaware spoke two dialects: Munsee and Unami, both of these belong to the Eastern Algonquian Lan­ guage family. Goddard has noted that the Delaware never formed a single political unit. He also has noted that the term Delaware was only applied to these groups after they had migrated from their original Northeastern homeland. Goddard sums up the Delaware migration as follows: The piecemeal western migration, in the face of white settlement and its attendant pressures during the eighteenth and nineteenth centuries, left the Delaware in a number of widely scattered places in Southern Ontario, Western New York, Wisconsin, Kansas and Oklahoma. Their history involves the repeated divisions and consolidations of many villages and of local, political and linguistic groups that developed in complicated and incompletely known ways. In addition, individuals, families and small groups were constantly moving from place to place. (Goddard 1978:213) 164 DELAWARE INDIAN LAND CLAIMS 165 Tanner (1987:2) has correctly noted that the Delaware were the "most transient of all Indian people on the Great Lakes scene". To discuss all of the Delaware migrations would be beyond the scope of this paper (see Map 1). The purpose here is to outline the key Delaware subgroups and movements that are needed to properly understand the claims filed by the Delaware under the Indian Land Claims Commission. Delaware Migrations Since Statehood It is interesting to note, as Grumet (1989:90) has pointed out, that the Delaware maintained their traditional kinship system of three clans — Tur­ tle, Turkey and Wolf, through all of their western migrations. Over time, however, these clans ceased to be matrilineal. The Delaware raids on frontier settlements in Pennsylvania and Vir­ ginia ended in August 1794, when the Delaware were defeated at the Battle of Fallen Timbers on the Maumee River in Ohio. After the American Rev­ olution, the demand by settlers for Ohio land cessions resulted in a number of treaties signed by the Delaware including the following: Fort Stanwix, 1784; Fort Mcintosh, 1785; Fort Finey, 1786; and Fort Hamar, 1789 (Tanner 1987:69). Tanner has noted that all of these treaties ceding Indian land were done at sparsely attended council meetings with inadequate Indian representa­ tion. At the treaty of Greenville in 1795 which followed Wayne's victory in 1794, two-thirds of the Ohio territory was ceded to the American Gov­ ernment. This land had been home to several Indian tribes including the Delaware, Shawnee, Mingo and Wyandot (see Map 2). After the Greenville treaty, the main body of the Delaware left Ohio and accepted an invitation from the Piankasharo Indians and relocated to the White River in Indiana (Kraft 1986:236). Although the majority of the Delawares moved to Indiana, several subgroups did not. One group of Delaware moved to Missouri at the invitation of the Spanish Government in 1789. Another group, a Moravian mission band, established the town of Fairfield on the Thames River in Ontario in 1792. A third group of Munsee, settled among the Seneca in 1791 (Goddard 1978:223; see Map 3). From 1790 to 1799 the American Congress passed four trade and inter­ course acts relating to Indian Affairs and Commerce. Waldman (1985:190) has noted that this act "required federal approval and public treaty for the purchase of Indian land by states." In 1802 a new act was passed that codified the four previous ones. This act would become very important in Indian land claims filed under the Indian Land Claims Commission. During the war of 1812, despite attempts by the British to persuade the Delaware to attack American settlements, they remained neutral. The 166 DAVID A. EZZO and MICHAEL MOSKOWITZ Indian lands occupied by the main body of the Delaware along with the Mo­ hicans and Munsees were originally obtained from the Miami and Pakashaw Indians in 1770 (Senate Report 1518:8, 1968). On December 12, 1808, President Thomas Jefferson signed a document which recognized this land transfer, stating that these three tribes and their descendants could remain on the White River "forever" (Senate Report 1518:8, 1968). In this case, forever for the Delaware would last only ten years. Before discussing the westerly movements of the main body of the Delaware, the history of the group that would later be known as the Stock- bridge-Munsee after this group had moved to Wisconsin in the 1830s should be outlined. After the American Revolution, in 1783, a group composed of both Munsee and Mahican moved to Canada (Brasser 1978:209). Another group of about 420 Mahicans accepted an invitation from the Oneida to relocate to a tract of land on Oneida Creek in New York. By 1786 most of the Indians had settled here at New Stockbridge. Due to pressure from both White settlers and the Oneida, by 1791 Chief Sachem Hendrick Aupaumut was considering relocation. The Stockbridge removal was delayed, however, due to the efforts of Shawnee Chief Tecumseh who attempted to organize a anti-white Confederacy (Brasser 1978:209). In 1801, 63 Brotherton Indians (formerly of New Jersey) accepted an invitation to join the Mahican Indians at New Stockbridge (Kraft 1986:232). Brasser has noted that in 1818, about seventy-five Stockbridges led by John Metoxen departed for Indiana. Upon their arrival, they learned that the Delaware and Miamis had been forced to sell their land. Missionaries then purchased some land from the Menominee and Winnebago Indians in Wisconsin for the Stockbridge (New York Indians). In 1828 a group of Indians from New Stockbridge settled on the Fox River in Wisconsin. They were led there by John W. Quinney. As of 1831, there were about 100 Delaware and 225 Stockbridges living on the Fox River. The purchase of this land was disavowed by the Wisconsin Indians and the Stockbridge community was removed to Calumet County (east of Lake Winnebago) between 1832 and 1834. In 1837 a number of Moravian Munsee from Canada joined this group; thus they came to be called the Stockbridge- Munsee. In 1837, John W. Quinney drafted a new tribal constitution that called for choosing tribal officers by election rather than by the traditional heredi­ tary leadership system. This caused some dissension among the tribe which was increased by the efforts of the United States government to "extinguish Indian claims east of the Mississippi." As a result, the Stockbridge agreed to cede half their land to the United States in return for money to finance removal. About 70 Stockbridge and about 100 Munsee left for the Missouri River in 1839. Many of these people did not survive the hardships of the DELAWARE INDIAN LAND CLAIMS 167 move. Some joined the main body of Delaware in Kansas and a few went back to Wisconsin. In 1856,the Stockbridge-Munsee were given a reservation in Shawano County, Wisconsin. About 150 Indians moved to this reservation in 1859. They were joined by a number of Brotherton and New York Iroquois. The Stockbridge-Munsee suffered a substantial loss of their land base due to the 1887 General Allotment Act. In 1938, the Stockbridge-Munsee tribal constitution was approved by the Bureau of Indian Affairs under the Indian Reorganization Act of 1934. They were given 2,250 acres of land in Bartlane township. The current Stockbridge-Munsee population is about 1,000. In 1986, they filed a claim to six square miles of land that they formerly occupied in Madison and Oneida Countiesin present-day New York State (see Map 7). A suit is still under review by the court and a judgement is expected soon in this case (Peg Rogers, personal communication). The St. Mary's Treaty (1818) The discussion will now return to the main body of the Delaware. The treaty of St. Mary's, Ohio, was signed on August 3, 1818. This treaty required the Delaware, Munsee, Mahicans and Nanticokes to give the United States occupancy rights to all their lands in Indiana (Newcomb 1956:97). The principal negotiators of the St. Mary's treaty were Chief William Anderson and Indian Agent John Johnstone (Senate Report 1518:9, 1968). In return for their Indiana Lands the Delaware were promised land west of the Missouri on the James Fork of the White River (406 F. Supp. 1309, 1975:1318; Goddard 1978:229). The Delaware were given three years to relocate. A total of 1,346 Delaware and 1,499 horses completed the move (Kraft 1986:236). The treaty of St. Mary's also illustrates the common United States government practice of only negotiating with a portion of the Indian tribal groups with rights to the land under review. In this case, for example, only some of the Stockbridge were present when the Indiana lands were ceded (406 F. Supp. 1309, 1975:1318). The Stockbridge Mahican had written to Chief Anderson through Agent Johnstone advising him not to sell the Indian lands.