Nanticoke-Lenape of NJ Win Six-Year Battle to Restore State Recognition

Lisa J. Ellwood

“It has been said that ‘the Indian Wars never ceased, they only changed venue. We are still fighting." Rev. Dr. Norwood

“It has been said that ‘the Indian Wars never ceased, they only changed venue.’ We are still fighting. We are fighting in courts, we are fighting in Congress—we are still fighting. And probably we’ll always fight, or else we’ll really be exterminated, through both acts of aggression or apathy.” --Rev. Dr. John R. Norwood, Nanticoke Lenni-Lenape Tribal Nation, “The Incomplete Loom: Exploring Checkered Past & Present of American Indian Sovereignty” (Rutgers Law Review, 2012)

“It's in the blood; I can't let go.”

--Robbie Robertson, “In the Blood”

A controversy that drew national attention for its contentious litigation in federal and state courts and significance to tribes throughout the nation has finally concluded. On November 15th, The State of New Jersey settled a major civil rights lawsuit brought by the State’s largest Native American Tribe, The Nanticoke Lenni-Lenape Tribal Nation, alleging racially discriminatory treatment of Native Americans by senior officials in former NJ Governor Chris Christie's administration. The State’s disavowal of Christie-era actions and restoration of the tribe’s status has profound and positive implications for both the plaintiff-tribe, the Nanticoke Lenni-Lenape Tribal Nation, and the civil rights of Native Americans nationwide.

The office of New Jersey’s newest attorney general Gurbir Grewal (confirmed on January 16, 2018) settled the tribe’s civil rights lawsuits. In doing so, it conceded that the 3,000-member Nanticoke Lenni-Lenape Tribal Nation was officially recognized in 1982 and regularly reaffirmed formal recognition over the next three decades.

The Lawsuits: A Brief Summary

Attorneys General under former Governor Chris Christie permitted efforts to undermine the tribe’s status in communications with Federal and State agencies. The tribe lost access to: federal grants to improve members’ health, education, and workforce preparedness; contracts won by highly-rated tribally-owned businesses; and the right to label and sell elders’ traditional arts and crafts as American Indian-made. “If the character of a nation is measured by how it treats its most vulnerable people, then today we have reason to celebrate this restoration of justice, but we all must do much better by our Native brothers and sisters,” said Greg Werkheiser of Cultural Heritage Partners, PLLC, legal counsel for the tribe.

The tribe’s lawsuits alleged that the state’s attempts to withdraw recognition were motivated by racial stereotypes attributing to all American Indian tribes a desire to conduct casino gaming, as well as irrational belief that state recognition leads to federal gaming rights. Most American Indian tribes do not conduct any casino gaming and the Nanticoke Lenni-Lenape have always prohibited reliance on gaming and other vices for income. The earliest efforts to disavow the tribe coincided with the period of Donald Trump’s ownership of Atlantic City casinos and the industry’s misplaced fear that acknowledging tribes’ continuing existence could lead to competition, the legal counsel press release stated.

The Nanticoke Lenni-Lenape sued the Attorneys General in the U.S. District Court for the District of New Jersey as well as in the Superior Court of New Jersey, Law Division, Mercer County, for violations of their federal and state constitutional rights to due process and equal protection. In a 42-page opinion denying the state’s motion to have the case dismissed, District Court Judge Renee Marie Bumb found the tribe’s allegations of impermissible race-discrimination viable.

The Nanticoke-Lenape identified dozens of instances over 30 years in which the State of New Jersey affirmed and celebrated the recognition of three tribes (the Nanticoke Lenni-Lenape, Powhatan Renape, and Ramapough Lenape), including in two state statutes where the tribes are specifically named and referred to as “the three New Jersey tribes.” By contrast, the tribe compelled the state to disclose documents revealing that top officials evaluating the tribe’s status ignored the abundant record of prior recognition and instead allowed their consideration to be distorted by racial stereotypes. The tribe recently moved for summary judgment in Federal Court with a 1,000-page filing, and the settlement was inked as a decision was pending.

Relevance for Tribes Nationwide

The lawsuit drew sustained national attention because of its implications for the hundreds of thousands of members of sixty-one other historical American Indian tribes that have received recognition by states but are not on the Bureau of Indian Affairs list of Federally Recognized Tribes. State-only Recognition is most prevalent in sixteen states on the East Coast where European settlers first encountered indigenous peoples, but where violence, disease and 20th century government-sanctioned racial discrimination took a heavy toll on Native populations and the ability of the tribes to prove their modern existence. “The outcome of this dispute should put States on notice that even the most vulnerable tribes have constitutional rights to due process and equal treatment when it comes to an official acknowledgment of their identity,” says Werkheiser.

“This fight to restore recognition has been lengthy, costly, and sad. But today New Jersey has reaffirmed that American Indians are not only part of its storied past, but valued partners in a shared future. We are ready to do our part to rebuild our relationship with the state government,” said Nanticoke-Lenape Tribal Chairman and Principal Chief: Mark Gould.

Terms of the Settlement

“Tribal rights are important rights, and through this settlement, we’ve been able to affirm the status of The Nanticoke Lenni-Lenape Nation as an American Indian Tribe formally recognized by the State,” said Attorney General Grewal in a statement released by his Office on November 15th. “As a result of this settlement, there is no more ambiguity regarding the Tribe’s official status, and the Tribe’s forward progress cannot be impeded by any State-related recognition issues. I’m heartened that, through good faith negotiation, we’ve been able to resolve this matter fairly and bring an end to years of legal dispute.”

Under the terms of the settlement the State of New Jersey “concedes no position it took in the litigation and makes no admission of liability or wrongdoing.” The State will now formally notify the Indian Arts & Crafts Board, U.S. Department of Health & Human Services, U.S. Small Business Association and the U.S. Dept. of Housing & Urban Development of its Recognition of The Nanticoke Lenni-Lenape Tribal Nation. The State agrees under the settlement that its formal recognition is intended to help “qualify the Tribe for all federal and state benefits … for which state-recognized tribes are eligible” including those provided by the federal Indian Arts and Crafts Act of 1990. The settlement also provides 2.4 million dollars in financial compensation to enable the tribe to begin to rebuild its cultural and economic development programs.

Both parties agree that the official State recognition acknowledged under the settlement does not provide The Nanticoke Lenni-Lenape Tribal Nation with federal casino gaming rights. In addition, the Tribe specifically “disclaims any interest in casino gaming rights.”

The Nanticoke Lenni-Lenape Tribal Nation Non-Gaming policy and Resolution of Agreement Regarding Class III Gaming and Land Claims between Nanticoke Lenni-Lenape and the other two formerly State Recognized” tribes of New Jersey, The Ramapough Lenape Nation, and the Powhatan Renape Nation, signed and dated 2011 underscores the sincerity and commitment of all three tribes to such a compact.

Reverend Dr. John R. Norwood, Ph.D. - Kelekpethakomaxkw (Smiling Thunderbear)

“The state never argued that we were not authentically Indian, just that they had never officially and formally recognized our tribal government.” --Reverend Dr. John R. Norwood, Ph.D. - Kelekpethakomaxkw (Smiling Thunderbear) Councilman and Principal Judge of the Nanticoke Lenni-Lenape Tribal Nation and National Congress of American Indians Delegate

Reverend Dr. John R. Norwood, Councilman and Principal Judge of the Nanticoke Lenni-Lenape Tribal Nation and National Congress of American Indians Delegate, generously gave ICT more insight into the impact of the lawsuit via email.

Lisa J. Ellwood: Are you able to comment on " Under the settlement announced today, the State concedes no position it took in the litigation and makes no admission of liability or wrongdoing."

Reverend Dr. John R. Norwood: While I am no attorney, the statement that the State “concedes no position it took in the litigation and makes no admission of liability or wrongdoing” is more a legal than a logical and is often used in settlements. I gather that it is almost like pleading “no contest” instead of “guilty” in a court proceeding. The fact is that the State did the Tribe wrong for 18 years, increasing it over the last six, and now after a long court battle and hard-fought settlement will be correcting the communications with state and federal agencies that were obviously erroneous and did us harm.

Mark Gould, Tribal Chairman and Principal Chief of the Nanticoke Lenni-Lenape Tribal Nation. Photo Courtesy: Nanticoke Lenni-Lenape Tribal Nation of NJ

Lisa J. Ellwood: Can you elaborate on the impact of losing federal grants and scholarships and other specific economic hardships the Tribal Nation has had to endure in the wake of this debacle?

Reverend Dr. John R. Norwood: With the change in recognition status we did see the loss of funding, such as: regular Community Service Block Grant funds designated for tribes that funded our tribal office for about a decade, with the loss resulting in the closing of our tribal office and store; repeated rejections of funding applications due to the confusion around our recognition status; students being deemed ineligible to apply for scholarship funds that required citizenship in a state or federally recognized tribe; our artisans and crafters not being able to claim that their traditional arts and crafts were authentic American Indian made, which drastically reduced their market value; the impact on the special status of our government contracting companies created hardship and job loss.

Lisa J. Ellwood: What do you anticipate are your next steps towards rectifying this now that recognition has been restored?

Reverend Dr. John R. Norwood: We will ensure that the relevant state and federal agencies receive official notice from the Attorney General’s office so that we can protect our artisans and crafters, ensure our standing with the upcoming 2020 census, reinvest in our tribal government contracting companies to help fund our economic growth into the future, and complete the construction of our tribal museum, just to name a few initial steps.

Lisa J. Ellwood: How long do you anticipate the recovery from ground lost will take?

Reverend Dr. John R. Norwood: While the overall difficulty lasted 18 years, real hardship said in over the past six. So I would assume that we probably will be working hard on recovering for the next 5 to 6 years at least. Some of the ground lost cannot be recovered though. The students that couldn’t continue their studies for lack of funds may not be in a position to turn back the clock on their educational prospects. The opportunities lost to our tribal companies are lost to the past and we will have to search and hope and work for new ones. The elders who struggled for our recognition in the late 1970s and early 80s who “walked on” during our litigation cannot be brought back to enjoy the benefits of their struggles.

Screenshot of the Christie-era New Jersey Commission on American Indian Affairs website as of 2016 through 2017. All three then formerly State-Recognized NJ tribes continued to be listed and active. Courtesy Lisa J. Ellwood

Lisa J. Ellwood: One of the things that astonished me over the past few years was the fact that, despite the loss of state recognition and the subsequent lawsuits by the Nanticoke-Lenape, all three State-Recognized NJ tribes continued to be listed on the New Jersey Commission on American Indian Affairs website. The Commission was still active during all this turmoil. The Nanticoke-Lenape Tribal Nation continued to participate [as evidenced bya photo and caption on the [now redesigned] sitedated 2017]. Commission Chair Lewis Greysquirrel Pierce and Urie Ridgeway Represented the Nanticoke-Lenape (and continue to do so). What are your thoughts on this - if any?

Reverend Dr. John R. Norwood: The tribal representatives on the commission were united in fighting to restore full rights of acknowledgment to each of the tribes that have been recognized in the state. They were hampered by some non-tribal staffers assigned to the commission by the Department of State. In fact, it was a state employee assigned to the commission that provided a response to the US General Accounting Office in 2012 indicating that New Jersey had no recognized tribes, which triggered the larger issues with our status. This response was given without the knowledge or consent of the official tribal representatives to the commission. It was also given after a 2007 independent study, commissioned by executive order, concluded that the tribes had indeed been recognized, but that the form of that recognition should be strengthened to alleviate confusion. The results of the study were subsequently ignored by both the Department of State and the New Jersey Attorney General’s office, even though they were involved and consented to the report. It boggles the mind!

Lisa J. Ellwood: In my article on the lawsuits forIndian Country Today, I made a point of noting: ‘In a 2015 discussion regarding “real” vs. “fake” tribes, Dr. Nicky Michael, councilwoman of the federally recognized Lenape tribeThe Delaware Tribe of Indians of Oklahomatold theDaily Beast, “The Nanticoke [in New Jersey] do have Native blood and are real.”’

East Coast Tribes have always been, and continue to be, discredited by Federally-Recognized tribes elsewhere, especially those who have not had to go through the extensive documentation for Recognition at the State and Federal levels that are currently required. The language and judgment applied to those who still remain in their ancestral homelands are often harsh and unforgiving.

Has having that public acknowledgment been important for the Tribe?

Reverend Dr. John R. Norwood: Having state recognition is certainly helpful in affirming your identity and rights to the non-Native public, and sadly sometimes to the Native public. However it does not change who you have always been, it’s merely an affirmation of that fact. However, there are so many tribal and non-tribal people in this country who have a colonized mindset and think that you are only a real Indian if the federal government acknowledges your tribe. Such a thought is absurd! It suggests that the tribes that gained federal recognition over the past decades were [not] Indian prior to that recognition and then suddenly became Indian because of the recognition? It surrenders Native identity to non-Native authorities. Real tribes are real regardless of whether or not they are recognized by their state or the federal government. I understand and share the frustration some tribes have with non-historic cultural organizations, which have no continuing history dating back more than a few decades and have no ancient internal family connections, suddenly claiming to be tribal governments and demanding to be treated as such. However, tribes that have the continuing history and internal relationships deserve the respect.

Lisa J. Ellwood: I also noted that ‘Ironically, as the Nanticoke-Lenape carried on with their struggle with the State of New Jersey, the Nanticoke Indian Tribe and its sister tribe the Lenni-Lenape of Delaware, had something special to honor during the 39th annual Nanticoke Powwow [in September 2016, the]formal [State] recognitionof their status as Tribes.’

Did the formal state recognition of the tribal status of the Nanticoke and Lenape Indian Tribes of Delaware bolster your case with New Jersey since we are well-documented historically as inter-related?

Reverend Dr. John R. Norwood: While we share a common history and bloodlines with the tribes in the state of Delaware, that was actually not an issue with this case. The state never argued that we were not authentically Indian, just that they had never officially and formally recognized our tribal government. There was overwhelming documentation verifying who we are and, as the settlement bears out, overwhelming documentation showing that the state had acknowledged our tribal government officially and formally.

An interview with Rev. Norwood from 2017 for theeducational program"Building Greater Understanding about Native Americans." He speaks in great detail about the longstanding threats to New Jersey’s three State-Recognized tribes, including Termination, and the genesis of the Nanticoke-Lenape lawsuit.

For more information on the Nanticoke-Lenape Tribal Nation, visit their tribal government website. Rev. Norwood’s free e-Book We Are Still Here… The Tribal Saga of New Jersey’s Nanticoke and Lenape Indians and Rutgers Law Review Legal Note “The Incomplete Loom: Exploring Checkered Past & Present of American Indian Sovereignty”are available for download. Visit the online Nanticoke and Lenape Confederation Learning Center and Museum.

Follow ICT Correspondent Lisa J. Ellwood on Twitter