Tribe Can Sue New Jersey for Recognition

     CAMDEN, N.J. (CN) — A federal judge ruled that the Nanticoke Lenni-Lenape tribe can sue New Jersey to get state recognition, which they say they once had, until the state attorney general’s office was instrumental in revoking it.
     European settlers’ first contact with the Lenni-Lenape was in 1524, in the Delaware River Basin. But the Nanticoke Lenni-Lenape describe themselves as “a constitutionally organized, self-governing, inherently sovereign American Indian tribe,” with a heritage that dates back more than 12,000 years.
     Today they inhabit a section of Fairfield Township, where they maintain tribal grounds, a community center, ceremonial grounds and a store.
     Their history is tragically similar to that of many Native Americans: driven from their lands as far west as the Upper Ohio River Basin, decimated by smallpox and other diseases, and eventually driven as far away as Oklahoma, Wisconsin and Ontario. The Nanticoke Lenni-Lenape say on their tribal website that their New Jersey residents have returned to their ancestral homeland after centuries of de facto exile.
     In 1982, New Jersey shifted toward a policy of recognizing American Indian tribes and passed concurrent resolutions recognizing three of them, including the Nanticoke Lenni-Lenape.
     But in their lawsuit, the Nanticoke say a 2006 study by Committee of Native American Community Affairs found that members of the state bureaucracy “had begun to undermine the tribes’ status out of confusion and prejudice.” The committee recommended that steps be taken to reaffirm the tribes’ recognition.
     The Nanticokes’ state-recognized status to come to a head in 2011 when the U.S. General Accountability Office, while conducting a national study, contacted the New Jersey Commission on Indian Affairs and was told by a staff member that New Jersey did not recognize any American Indian tribes.
     In their lawsuit, the tribe says that in denying the existence of state recognition, the staffer “relied upon counsel from the acting attorney general,” the nominal defendant. Tribal officials met with Acting Attorney General Robert Lougy’s staff and asked that he issue a written retraction of statements from his office questioning the state recognition of tribes.
     But after months of waiting, the Nanticoke say, “the tribe was informed that certain political crises had caused the attention of the acting attorney general to shift, and that he would take no voluntary steps to stanch or reverse the damage being caused by his attempt without due process to undo state recognition of these tribes.”
     The Nanticoke say the lack of state recognition has cost them more than $600,000 in lost grants, and denied them their ability to market their goods as “Indian-made.”
     Lougy, who was appointed acting attorney general this year, sought dismissal on several grounds, including Eleventh Amendment sovereign immunity, a non-justiciable political question, and failure to state a claim for civil rights violations.
     But U.S. District Judge Renée Marie Bumb denied the claims of sovereign immunity and non-justiciable political question, clearing the case for trial.
     On sovereign immunity, Bumb wrote: “(T)his is not a suit where the ultimate result sought is to achieve some sort of recompense from the state, but is rather for the discrete purpose of preventing the defendant from repudiating a status to which the plaintiff claims entitlement. … In that light, it is clear that the state is not the real party in interest in this case, but rather the defendant is.”
     The attorney general’s office also argued that there are no judicially manageable standards for resolving the issue because the tribe has not cited any regulatory standards allowing for recognition of American Indian tribes in New Jersey.
     While Bumb noted that “this court cannot identify an obligation for a state to have such standards,” she found that that “[s]tate recognition has a long history, enjoying several centuries of precedent and evolution.”
     As for the non-justiciable political question, Bumb found that “while the notion of whether the tribe ought to be recognized might fall into the realm of political question, that issue is not the central one to this case.”
     The attorney general also argued that the court could not resolve the issues without showing “lack of respect for the coordinate branches of government.”
     That didn’t fly either. Bumb ruled that “the court cannot identify any way in which respect would not be shown to the state legislature by adjudicating that the conduct of the defendant eviscerates the alleged statutory recognition provided by the state legislature.”
     Bumb did dismiss the tribe’s due process allegation, finding that the Nanticoke did not state a fundamental right protected by the substantive due process clause.
     Leland Moore, a spokesman for the attorney general’s office, said the decision is being reviewed and declined further comment.

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