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Nanticoke Lenni-Lenape a Recognized Tribe, Court Rules
Michael Booth, New Jersey Law Journal
July 10, 2017
The Nanticoke Lenni-Lenape Tribal Nation, which claims its history has been rewritten in New Jersey in recent years, is a recognized American Indian tribe, a state appeals court has ruled.
The tribe said in its lawsuit that the state violated its rights under the state constitution and common law when, in 2012, the Attorney General's Office told the federal government that the state did not recognize the Nanticoke Lenni-Lenape as a tribal nation. It claimed that decision would harm its ability to conduct business and receive government grants and contracts.
Appellate Division Judges Mitchel Ostrer, George Leone and Francis Vernoia said in an unpublished ruling on Monday that Mercer County Superior Court Judge William Anklowitz erred when he ruled that the tribe never received recognition since the state never passed a statute granting that status.
The appeals court said that since 1982, the state has passed a number of resolutions and has created various commissions clearly recognizing the Nanticoke Lenni-Lenape as an American Indian tribe.
"[W]e find the court applied the wrong legal standard and incorrectly failed to accept plaintiff's factual allegations in the complaint are true," the appeals court said. "Plaintiff is a 'constitutionally organized, self-governing, inherently sovereign American Indian tribe,' a majority of whose members reside in New Jersey."
According to the decision, the tribe has about 3,000 members and maintains tribal grounds in Burlington County. New Jersey recognizes two other tribes: the Powhatan Renape Nation and the Ramapough Mountain Indians.
The Legislature passed a resolution memorializing the Nanticoke Lenni-Lenape's status as a tribal nation in 1982, and governors from Democrat James Florio to Republican Christine Todd Whitman had recognized the tribe as an American Indian tribe, the decision said.
Those findings were vital to the tribe because it allowed its members to label their products as "Indian made," and made it eligible for federal health and educational grants, along with other benefits it otherwise would not be entitled to receive, the appeals court said.
The tribe's attorney, Gregory Werkheiser, said the appeals court ruling was a welcome one for the tribe, which is under severe economic stress.
Werkheiser, of Cultural Heritage Partners in Washington, D.C., said the administration of Gov. Chris Christie inappropriately repudiated the state's earlier stance.
"This abrupt about-face has led to devastating economic and social consequences for the tribes as access to federal programs has been withdrawn or threatened," Werkheiser said.
When the lawsuit was filed, John Hoffman was the acting attorney general, and he was named as the defendant. A spokesperson for the current attorney general, Christopher Porrino, did not immediately respond to a request for comment.
"Plaintiff has continuously received federal benefits since 1982 based on the state's recognition of it as an American Indian tribe," the appeals court said.
The tribe has a lawsuit pending in federal court alleging that the state's repudiation of its earlier recognition of the tribe violated the tribe's due process and equal protection rights. In October, U.S. District Judge Renee Bumb, sitting in Camden, denied the state's motion to dismiss the case on sovereign immunity or political question grounds.
You beat me to it!
CHRISTIE SHOULD ABANDON THIS TRIBAL WARFARE
http://www.nj.com/opinion/index.ssf/201 … ditor.html
Updated on July 16, 2017 at 8:43 AM Posted on July 16, 2017 at 8:42 AM
By South Jersey Times Editorial Board
South Jersey's most prominent Native American tribe has won a victory that keeps its legal quest for full state recognition moving ahead, while the mystery of how the Nanticoke Lenni-Lenape Tribal Nation lost its state designation in the first place remains unsolved.
A Superior Court Appellate Division panel revived the tribe's legal case last week, deciding that a lower-court judge had wrongly tossed out the case by accepting one of the state's key claims: that the Lenni-Lenape never had official recognition by the State of New Jersey.
There are more holes in that claim than in an initial Donald Trump Jr. account of a meeting with Russian operatives. In 1982, the Legislature clearly passed a resolution granting acknowledgement of the 3,000-member Lenni-Lenape as an official American Indian tribe. The tribal population lives throughout the Northeast, and its official headquarters is in Fairfield Township, Cumberland County.
The importance of the recognition isn't limited to the ability to stamp tribal craft items as "genuine," or to grant authenticity to the Lenni-Lenapes' open-to-the public South Jersey pow-wows. A state's official recognition of a tribal nation allows it to receive federal anti-poverty funds and preferred-bidder status for certain contracts.
As tribal officials tell it, the first they learned of any problem was early in the Christie administration, when a federal inventory listed no official tribes based in New Jersey, even though the Nantikoke Lenni-Lenape and two other tribes had been given the designation by the Legislature.
The state's reasons for withdrawing the tribe's official status remain opaque.
The state Attorney General's Office backed up the "no tribes here" claim in 2012, which is what sent the Lenni-Lenape running to court under civil rights and anti-discrimination statutes. Although a separate federal court suit is ongoing, a trial court in May 2016 upheld the AG's position in the state litigation.
What's never been clear is why the AG's office even bothered to defend the apparent de-listing. Official recognition mainly qualifies a tribe for federal benefits, not state-financed ones that Garden State taxpayers pay for directly.
We see only two likely motives here, neither of which would speak well of the Christie and his administration.
One possibility is that the administration was carrying water for Atlantic City casino interests, who feared that the Nanticoke Lenni-Lenape would claim rights to plop a competing tribal casino somewhere in Cumberland or Salem counties. And, although this is pure speculation, "Atlantic City casino interests" at the time could have included President Donald Trump.
At any rate, tribal officials have claimed to have no interest in developing their own gambling site.
Secondly, there is an alternate view among some local historians, that too little proof exists that the Lenape who inhabit South Jersey are a legitimate tribe. But, that's just speculation, too, and American Indians should not lose tribal status based on blind acceptance of an unproved theory that turns generations of history books upside down on their spines. Every fourth-grader in New Jersey knows about the Lenni-Lenape.
Gov. Christie seemingly joined the "climate-change deniers" when he yanked New Jersey out of the Regional Greenhouse Gas Initiative (RGGI). His administration's strange actions concerning the Nanticoke-Lenni-Lenape suggest he has a charter membership in the "Native American deniers," as well.
The Lenni-Lenape say they're a tribe, and want N.J. to agree
http://www.philly.com/philly/news/new_j … 70717.html
by Jacqueline L. Urgo, Staff Writer @JacquelineUrgo | firstname.lastname@example.org
The Nanticoke Lenni-Lenape don’t quite know why, in 2012, the new Christie administration suddenly dropped 30 years of state recognition of them as an Indian tribe.
An attorney for the South Jersey-based tribe speculated that the action might have something to do with fears that the tribe might try to establish casinos, as Indian tribes have elsewhere.
Such fears are unfounded, the tribe says — right on its website. It says it considers gambling an evil.
Whatever lay behind the state’s decision, the repudiation of its tribal status five years ago left the tribe in limbo and ultimately created “devastating economic and social consequences,� according to a civil rights lawsuit filed against the Christie administration.
Last week, a state appellate panel found that the tribe’s case had merit and could proceed.
A flyer advertising the Nanticoke Lenni-Lenape’s 2017 tribal pow-wow.
The three-member panel reversed a lower court decision that had said the Nanticoke Lenni-Lenape had no grounds for their suit. The tribe has also filed a federal lawsuit against the attorney general, claiming unlawful discrimination and violation of the members’ civil rights under the U.S. Constitution. Last fall, a federal court ruled that the case could proceed, after the attorney general tried to have the case dismissed.
The New Jersey Legislature in 1982 formally recognized the Nanticoke Lenni-Lenape and two other tribes as “American Indian Tribes� originating in the state — and later gave all three tribes seats on the state’s Commission on Native Affairs.
But the Attorney General’s Office in 2012, under then-acting Attorney General John Hoffman, told the federal government that the Nanticoke Lenni-Lenape were not considered a “recognized� tribal nation. Hoffman was named as a co-defendant in the suit.
The Nanticoke Lenni-Lenape argue that lack of state recognition has impeded access to federal health and educational programs and grants.
The tribe also alleges that it has difficulty obtaining contracts because it can no longer market its handcrafted products, including knitwear and honey, as “Indian made,� according to the tribe’s lawyer Gregory Werkheiser, a civil rights attorney with Cultural Heritage Partners in Washington, who represents the tribe.
“Five judges in two courts have now told the Attorney General in detailed written opinions that if the facts alleged by the tribe are true, the tribe has legitimate claims for constitutional civil rights violations. One wonders how much clearer a message the defendant requires to realize the error of his actions,� Werkheiser told NJ.com after the latest ruling.
The state hasn’t indicated in any of its court filings why it refuses to officially recognize the tribe, but Werkheiser previously said that fear that New Jersey’s tribes may want to establish casinos in the Garden State, similar to those of other Native Americans groups in such states as New York and Connecticut, is behind it.
The Nanticoke Lenni-Lenape, however, have publicly stated that they “are a churchgoing people� who do not want to “bring the devil� into their tribe by operating casinos, Chief Mark Gould said in a 1993 interview with the New York Times. The tribe’s website reiterates the sentiment in a lengthy statement.
In its ruling last week, the appeals panel said Superior Court Judge William Anklowitz of Mercer County erred when he ruled that the tribe “never received recognition� because the state never passed a resolution formally granting it official tribal status. The appeals panel said it found that, since 1982, the state had passed various resolutions and as late as 1995 created commissions that “clearly recognized� the Nanticoke Lenni-Lenape as an American Indian tribe.
The appeals panel finding said the plaintiff is a “constitutionally organized, self-governing, inherently sovereign American Indian tribe� whose majority of members reside in the state of New Jersey. The Cumberland County-based tribe until recently operated a small tribal center and gift shop in Bridgeton’s downtown and currently owns tribal lands in neighboring Salem County, where it holds an annual pow-wow each spring.
The “plaintiff has continuously received federal benefits since 1982 based on the state’s recognition of it as an American Indian tribe,� the appeals ruling said.
The state Attorney General’s Office, under current Attorney General Christopher Porrino, declined comment on the matter following the ruling.