SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2756-15T1

NANTICOKE LENNI-LENAPE

TRIBAL NATION,

Plaintiff-Appellant,

v.

JOHN J. HOFFMAN, Acting Attorney

General of the State of New Jersey,

Defendant-Respondent.

______________________________________

Argued June 6, 2017 – Decided July 10, 2017

Before Judges Ostrer, Leone and Vernoia.

On appeal from the Superior Court of New 

Jersey, Law Division, Mercer County, Docket 

No. L-2343-15.

Gregory A. Werkheiser (Cultural Heritage 

Partners, PLLC) of the Washington, DC bar,

admitted pro hac vice, argued the cause for 

appellant (Barry, Corrado & Grassi, P.C., and 

Mr. Werkheiser, attorneys; Frank L. Corrado,

and L. Eden Burgess (Cultural Heritage 

Partners, PLLC) of the Washington, DC bar,

admitted pro hac vice, on the brief).

Stuart M. Feinblatt, Assistant Attorney 

General, argued the cause for respondent 

(Christopher S. Porrino, Attorney General,

attorney; Mr. Feinblatt, of counsel and on the 

brief; Kimberly A. Hahn, Deputy Attorney 

General, on the brief).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court."

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R.1:36-3.
2 A-2756-15T1

Andrews Kurth LLP, attorneys for amici curiae 

Indian Law Resource Center, Alliance of 

Colonial Era Tribes, and Religious Society of 

Friends Salem Quarter Indian Affairs Committee 

(Joseph A. Patella, on the brief).

PER CURIAM

Plaintiff Nanticoke Lenni-Lenape Tribal Nation filed a five 

count complaint alleging defendant, the New Jersey Attorney 

General,

1 violated its rights under the New Jersey Constitution 

and breached duties imposed under the common law by denying and

repudiating the State's prior recognition of plaintiff as an 

American Indian Tribe. Plaintiff alleged defendant's actions have 

and will deprive it of benefits under various federal statutes and 

programs that are conditioned upon the State's recognition of it 

as an American Indian Tribe. The trial court granted defendant's 

motion to dismiss the complaint under Rule 4:6-2(e), finding

plaintiff's claims are barred because the State never enacted a 

statute expressly recognizing plaintiff as an American Indian 

Tribe. We reverse because we find the court applied the wrong 

legal standard and incorrectly failed to accept plaintiff's 

factual allegations in the complaint as true.

 

1 Acting Attorney General John Jay Hoffman was named as the 

defendant in the complaint in his individual and official 

capacities. Hoffman's tenure ended in March 2016. 
3 A-2756-15T1

I.

Because we review the trial court's dismissal of the complaint 

under Rule 4:6-2(e), we accept as true the factual allegations in 

the complaint. Craig v. Suburban Cablevision, 140 N.J. 623, 625 

(1995). Plaintiff is "a constitutionally organized, selfgoverning, inherently sovereign American Indian tribe," a majority 

of whose members reside in New Jersey. It is presently comprised 

of about 3,000 members, and maintains tribal grounds in Burlington 

County.

Plaintiff avers that in 1982, the State Legislature adopted 

a concurrent resolution "officially recogniz[ing] plaintiff as an 

American Indian Tribe."

2 Since the enactment of the resolution,

plaintiff has received benefits under various federal statutes and 

programs based on New Jersey's recognition of plaintiff as an 

American Indian Tribe.

Plaintiff further alleges that following the adoption of the 

resolution, the State routinely reaffirmed its recognition of 

plaintiff and two other tribes as American Indian Tribes "through 

 

2 A copy of New Jersey Senate Concurrent Resolution No. 73 (1982),

was submitted in support of defendant's motion to dismiss the 

complaint. The resolution resolved that "the Confederation of 

Nanticoke-Lenni Lenape Tribes of southern New Jersey, an alliance 

of independent surviving tribes of the area, is hereby designated 

by the State of New Jersey as such," and that "the Congress of 

the United States, is hereby memorialized to acknowledge the

Confederation . . . as such."
4 A-2756-15T1

a series of actions consistent with and necessarily predicated 

upon that recognition." In 1992, the Legislature passed, and the

Governor signed into law, L. 1991, c. 359, which amended N.J.S.A.

26:8-49, entitled "[c]orrections to birth and fetal death 

certificates." The statute states in part:

In the case of a correction to the birth record 

of a member of one of the three New Jersey 

tribes of American Indians, the PowhatanRenape Nation, the Ramapough Mountain Indians,

or the Nanticoke[]Lenni-Lenape Indians, the 

substantiating documentary proof may include,

but shall not be limited to, an affidavit,

satisfactory to the State registrar or any 

local registrar and signed by the chief of the 

tribe that according to tribal records the 

person whose certificate is to be amended is 

a member of the tribe of the chief whose 

signature appears on the affidavit.

[N.J.S.A. 26:8-49 (emphasis added).]

The Assembly Health and Human Services Committee explained:

. . . This bill permits corrections to birth 

certificates and fetal death certificates of 

certain American Indians to be made on the 

basis of an affidavit signed by the tribal 

chief stating that the person in question is 

a member of the tribe according to tribal 

records. American Indians are frequently 

issued birth certificates indicating an 

incorrect race, and often encounter 

difficulties in obtaining evidence 

satisfactory to the State registrar of vital 

statistics or to local registrars to support 

their claims that their birth certificates 

should be amended. This bill would 

specifically allow a chief of one of the three 

New Jersey tribes, the Powhatan-Renape Nation,

the Ramapough Mountain Indians, or the 
5 A-2756-15T1

Nanticoke[]Lenni-Lenape Indians, to submit 

affidavits concerning tribal records which 

could be used as proof of membership in the 

chief's tribe. 

[Gen. Assem. Health and Human Servs. Comm.,

Statement to Gen. Assem. No. 999 (codified at 

N.J.S.A. 26:8-49).]

In September 1992, the Office of Governor James Florio sent 

a letter to the federal Indian Arts & Crafts Board. The Board 

regulates the use of the "Indian-made" label on products, and 

permits only state or federally recognized tribes to use the label. 

The letter stated: 

Governor Florio has asked me to respond to 

your recent letter about the state of staterecognized Indian tribes in New Jersey. The 

New Jersey State Legislature, comprised of the 

Senate and Assembly, is the law-making body 

that is responsible for the legal recognition 

of Indian tribes. Formal recognition is 

accomplished by State Resolutions, which 

remain in effect until rescinded. To date,

three tribes have been recognized.

In 1995, the Legislature passed and the Governor approved 

legislation creating the nine-member Commission on Native American 

Affairs. See L. 1995, c. 295, codified as N.J.S.A. 52:16A-53 to -

58.

3 The Commission "act[s] as a liaison among American Indian 

communities, the State and federal governments, and educational,

social and cultural institutions." N.J.S.A. 52:16A-56(e). The 

 

3 The legislation was amended in 2001. L. 2001, c. 417, §§ 2-7.
6 A-2756-15T1

Commission consists of nine members: the Secretary of State and 

eight public members; "[t]wo of the public members shall be members 

of [plaintiff], to be appointed by the Governor on the 

recommendation of [plaintiff] and with the advice and consent of 

the Senate." N.J.S.A. 52:16A-53. There are also two members 

appointed from the Ramapough Mountain Indians, the Powhatan Renape 

Nation, and the "Intertribal People." Ibid. "Intertribal People"

are American Indians who reside in New Jersey and are not members 

of the three aforementioned tribes, but are "enrolled members of 

another tribe recognized by another state or the federal 

government." Ibid. 

In February 2000, the Office of New Jersey's Secretary of 

State "confirmed, upon inquiry, that the State of New Jersey has 

recognized three groups of Indians. They are referred to in the 

law as the Nanticoke Lenni-Lenape Indians, the Ramapough Mountain 

Indians, and the Powhatan Renape Nation."

Also in 2000, the Office of Governor Christine Todd Whitman 

"confirmed to the U.S. Department of Commerce, Census Bureau, that 

[plaintiff] [was] one of New Jersey's three state-recognized 

American Indian tribes." The U.S. Census Bureau responded by 

stating that its records showed the State granted recognition to 

tribal governments including plaintiff. 
7 A-2756-15T1

In a November 2000 report to the Governor and Legislature,

the Commission stated there were "only three tribes" "legally 

recognized by the State" and identified plaintiff as one of them. 

According to plaintiff, between 2000 and 2001, "multiple 

governmental environmental assessments for improvements at McGuire 

Air Force Base confirmed that [plaintiff] is state-recognized."

In 2001, an individual claiming to represent his own newly 

created tribe sued the State seeking to acquire land, and plaintiff 

sued the individual "to prevent him from implying any association 

with it." The individual's lawsuit "failed, in part, because the 

[S]tate asserted that the citizen was not affiliated with one of 

its three existing tribes."

In March 2003, U.S. Senator John Corzine wrote to the U.S. 

Department of the Interior stating:

The Nanticoke Lenni-Lenape have been 

functioning as a designated tribe in New 

Jersey since a concurrent resolution passed 

the New Jersey Legislature to designate them 

as such in 1982. As a result, the Nanticoke 

Lenni-Lenape has received grants and services 

from federal programs for [state-recognized] 

Indians.

In 2006, Governor Corzine created the Committee of Native 

American Community Affairs "to research and report on the social 

and economic conditions of New Jersey's state-recognized American 

Indian tribes and other American Indian communities." The 
8 A-2756-15T1

Committee issued a 2007 report observing "that while the [S]tate's 

prior recognition of the Tribes was legally sufficient, it was 

proving politically insufficient, because over time members of the 

state bureaucracy had begun to undermine the tribes' status out 

of confusion and prejudice," and recommending "that further steps 

be taken to reaffirm the recognition of 25 years prior, with 

options including refreshed concurrent resolutions, an executive 

order, or legislation." The report found:

Concurrent New Jersey legislative resolutions 

passed in 1980 and 1982 recognized three New 

Jersey Native American tribes — the Nanticoke 

Lenni-Lenape, the Powhatan Renape, and the 

Ramapough Lenape [sic] . . . . [The Committee] 

determined that the 1980 and 1982 concurrent 

legislative resolutions did recognize the 

three New Jersey American Indian 

tribes . . . . New state action might be 

taken to further "affirm state recognition for 

[the] three tribes previously 

recognized . . . ," even if such 

legislation was not required. 

In 2010, "the [S]tate once again affirmed to the U.S. Census Bureau 

that [plaintiff] was state-recognized."

Plaintiff's complaint also detailed alleged actions taken by 

State officials to undermine the State's recognition of plaintiff 

as an American Indian Tribe. Plaintiff alleges that in 2001, in 

response to a request from the federal Indian Arts & Crafts Board

to the Commission for any additions to the State's list of 

recognized tribes, the Division of Gaming Enforcement wrote a 
9 A-2756-15T1

letter advising that the State had no state-recognized tribes. The 

letter, written by the Director of the Division of Gaming 

Enforcement, stated that the 1982 concurrent resolution did not 

formally recognize plaintiff, and added that only the federal 

government could determine whether the tribes were staterecognized. 

In 2012, the federal General Accountability Office (GAO) 

issued a report "on the status of American Indians in the U.S."

Plaintiff then "discovered from the federal government that a 

state employee assigned to staff the state Commission on American 

Indian Affairs had, without the knowledge or consent of the 

Commissioners who are charged with executing its mission, informed 

the GAO that New Jersey had no state-recognized tribes." Plaintiff

subsequently "sought answers from [d]efendant." According to 

plaintiff, defendant's Chief of Staff proposed a "formal written 

retraction of the state's previous state correspondence denying 

the state-recognition of the tribes," but it never came to 

fruition.

Plaintiff alleges that as a consequence of the State's 

repudiation of its recognition of plaintiff as an American Indian 

Tribe, plaintiff has suffered and will continue to suffer the loss 

of: the ability to market and sell products as "Indian-made" under 

the Indian Arts and Crafts Act, 25 U.S.C.A. §§ 305 to 310; grants 
10 A-2756-15T1

from the U.S. Department of Health and Human Services 

Administration (HHS) for Native Americans; the ability to do 

business as a certified tribal company; educational opportunities 

and funding; loss of funding from HHS's block grant program;

membership and standing in professional organizations, including 

the National Congress of American Indians; approval for lines of 

credit; and eligibility for government contracts. 

Based on the foregoing allegations, plaintiff asserted causes 

of action for violation of plaintiff's right to procedural due 

process, substantive due process, and equal protection under the 

New Jersey Constitution. Plaintiff also asserted claims that 

defendant is estopped from repudiating its recognition of 

plaintiff as an American Indian Tribe, and the repudiation 

constitutes arbitrary and capricious action under state law. 

Defendant moved to dismiss the complaint, claiming 

plaintiff's causes of action were fatally flawed because the State 

never officially recognized plaintiff as an American Indian Tribe 

in the first instance. Defendant argued plaintiff's causes of 

action were deficient as a matter of law because they were based 

on the false premise that plaintiff had been recognized by the 

State. Defendant asserted state recognition could only be extended 

by statute, and that the 1982 concurrent resolution and the other 

statutes and declarations referenced in the complaint were 
11 A-2756-15T1

insufficient to confer the state recognition claimed by plaintiff.

Defendant argued it could not unlawfully repudiate a recognition 

that was never officially granted and, as a result, plaintiff's 

causes of action should be dismissed.

In an oral opinion, the court stated that it was plaintiff's 

position that "New Jersey law recognizes"

4 plaintiff as an American 

Indian Tribe. The court limited its consideration of defendant's 

motion to a determination of whether there was a New Jersey statute

extending recognition. The court reasoned that the 1982 resolution 

was insufficient to establish recognition because it did not 

constitute a law under Article 5, Section 1, Paragraph 14 of the 

New Jersey Constitution.

5 The court further found that although 

N.J.S.A. 26:8-49, which was enacted in 1992, expressly states that 

plaintiff is one of New Jersey's "Tribes of American Indians," it

is not a law that extended recognition because it was intended 

 

4 This is an incorrect statement of plaintiff's position. 

Plaintiff's complaint alleges that the 1982 resolution, subsequent 

statutes, and the pronouncements of State officials conferred or 

confirmed recognition sufficient for its receipt of various

federal government benefits.

5 The court found that under the State Constitution a law must 

first be approved by both houses of the Legislature and then only 

becomes a law if signed by the Governor within the time period 

allowed, or is not returned to the Legislature by the Governor 

with objections before the time expires for his consideration, or 

if the Legislature overrides the Governor's objections.
12 A-2756-15T1

only to identify plaintiff as "an ethnic group for vital statistic 

purposes."

The court did not address the 1995 enactment of N.J.S.A.

52:16A-53, which established the Commission, but instead relied 

on an amendment to N.J.S.A. 52:16A-56(g)6 providing that 

recognition of the "authenticity of any organization, tribe,

nation or other group as an American Indian Tribe . . . shall 

require specific statutory authorization." The court determined 

there was no statute extending recognition to plaintiff as an 

American Indian Tribe, and that plaintiff's complaint did not 

state claims upon which relief could be granted because they were 

premised on the incorrect legal contention that plaintiff was a 

state recognized American Indian tribe. The court entered an order 

granting defendant's motion to dismiss the complaint. This appeal 

followed.

II.

Rule 4:6-2(e) authorizes the dismissal of a complaint for 

"failure to state a claim upon which relief can be granted." When 

considering an application for relief under this rule, a court is 

required to "search[] the complaint in depth and with liberality 

to ascertain whether the fundament of a cause of action may be

 

6 The amendment became effective on January 8, 2002. L. 2001, c.

417, § 4.
13 A-2756-15T1

gleaned even from an obscure statement of claim, opportunity being 

given to amend if necessary." Major v. Maguire, 224 N.J. 1, 26 

(2016) (quoting Printing Mart-Morristown v. Sharp Elecs. Corp.,

116 N.J. 739, 746 (1989)). 

We review an order of dismissal under Rule 4:6-2(e) de novo 

and "apply the same test as the Law Division." Smerling v. Harrah's 

Entm't, Inc., 389 N.J. Super. 181, 186 (App. Div. 2006). In other 

words, "our inquiry is limited to examining the legal sufficiency 

of the facts alleged on the face of the complaint," and determining 

if "a cause of action is 'suggested' by the facts." Green v. Morgan 

Props., 215 N.J. 431, 451 (2013) (quoting Printing Mart, supra,

116 N.J. at 746). "The examination of a complaint's allegations 

of fact required by the aforestated principles should be one that 

is at once painstaking and undertaken with a generous and 

hospitable approach." Printing Mart, supra, 116 N.J. at 746. 

The complaint alleges plaintiff received various federal 

benefits since 1982 because it satisfied a required condition for 

the receipt of the benefits: state recognition as an American 

Indian tribe. The complaint further alleges the State has 

wrongfully repudiated its recognition and that plaintiff has 

therefore lost and will lose federal benefits it has enjoyed since 

1982.
14 A-2756-15T1

Defendant's motion to dismiss the complaint was founded 

solely upon the argument that the State never granted recognition 

qualifying plaintiff for the receipt of federal benefits. 

Defendant argued recognition could be extended only by statute,

there was no statute extending recognition, and thus plaintiff's 

claims rested on a false legal premise and should be dismissed. 

The court accepted defendant's argument, found that a statute was 

required for an extension of state recognition, and concluded 

defendant could not wrongfully repudiate recognition that had 

never been granted.

Based on our review of the complaint, we are convinced the 

court erred in dismissing plaintiff's claims for two reasons. 

First, the court failed to accept plaintiff's factual allegations 

that the State has recognized plaintiff as an American Indian 

tribe in a manner sufficient for plaintiff's receipt of federal 

benefits. Second, the court erred by failing to apply the 

applicable federal standards in determining that state recognition 

was never granted. We address the issues in turn.

In considering defendant's dismissal motion, the court was 

required to accept the complaint's factual allegations as true and 

interpret them with great liberality. See Major, supra, 224 N.J.

at 26. The court's conclusion that a statute extending recognition 

was required for plaintiff's receipt of federal benefits, however,
15 A-2756-15T1

is contradicted by the facts alleged in the complaint. According 

to the complaint, plaintiff has continuously received federal 

benefits since 1982 based on the State's recognition of it as an 

American Indian Tribe.

The complaint alleges the federal government accepted the 

actions of the State, whether by concurrent resolution,

declarations of government officials, statutes such as N.J.S.A.

26:8-49 and N.J.S.A. 52:16A-53,

7 or otherwise, as recognition 

sufficient to qualify plaintiff for federal benefits. Therefore,

the court's determination that a statute was required to extend 

the recognition is incorrect as a matter of fact based on the 

allegations in the complaint. If, as the court found, a statute 

was the only means of obtaining state recognition satisfying the 

federal standard for benefits, plaintiff would not have received 

federal benefits based on state recognition since 1982 as alleged 

in the complaint.

8 

 

7 Because we conclude defendant's claim plaintiff did not receive 

state recognition sufficient to qualify it for federal benefits 

must be determined under the federal standards, we do not offer 

an opinion on the court's determination that N.J.S.A. 26:8-49 

did not constitute sufficient state recognition other than to note 

the court made its determination without reference to the federal

standards.

8 We recognize that N.J.S.A. 52:16A-56(g) was amended in 2002 to 

provide that recognition of an American Indian Tribe "shall require 

specific statutory authorization. Defendant states it is not 
16 A-2756-15T1

Moreover, the court erred by failing to consider or apply the 

federal standard for determining whether plaintiff was a state 

recognized American Indian tribe entitled to receive the benefits 

cited in the complaint. Plaintiff claimed a loss of benefits which

are awarded only upon the federal government's acceptance of state 

recognition of an American Indian tribe. As such, federal standards

determine whether a state's action constitutes recognition 

sufficient for the award of benefits.9

We offer no opinion on the applicable standards for the 

federal government's acceptance of the State's recognition of 

plaintiff during the period alleged in the complaint. The standards 

were not considered by the motion court. It appears the current 

standards are flexible and differ among the federal agencies from 

 

claiming N.J.S.A. 52:16A-56(g) is retroactive. We offer no opinion 

on that subject or the effect of the enactment on plaintiff's 

entitlement to federal benefits. We observe that the court offered 

no support for its conclusion that a statute was required for 

state recognition prior to the 2002 amendment, and did not address 

the federal government's continuing grant of benefits to plaintiff 

based on state recognition following the amendment.

 

9 The federal government may directly recognize a tribe as an 

American Indian Tribe. See generally 25 C.F.R. §§ 83.1 to 83.12. 

Plaintiff does not allege direct federal recognition here. 

Plaintiff alleges that New Jersey's recognition has qualified it 

for the receipt of federal benefits since 1982 and defendant's 

actions constitute a wrongful and constitutionally impermissible 

repudiation of the State's recognition. 
17 A-2756-15T1

which plaintiff has received benefits. But they do not expressly 

require the enactment of a state statute extending recognition.

10

See e.g., 20 U.S.C.A. § 1401(13) (defining "Indian tribe" under 

the Individuals with Disabilities Education Act as "any Federal 

or State Indian tribe, band, rancheria, pueblo, colony, or 

community"); 25 U.S.C.A. § 4103(13)(A) (defining a "State 

recognized tribe" under the Native American Housing Assistance and 

Self-Determination Act as "any tribe, band, nation, pueblo,

village, or community . . . that has been recognized as an Indian 

tribe by any State" and entered into a contract under the United 

States Housing Act of 1937); 25 C.F.R. § 309.2(e)(2) (providing 

the Indian Acts and Crafts Act applies to tribes that are "formally 

recognized . . . by a State legislature or by a State commission,

or similar organization vested with State tribal recognition 

authority"); 34 C.F.R. § 263.3(3)(1) (providing that under the 

 

10 "State recognition can take a variety of forms, and federal laws 

extending to state-recognized tribes defer to the states'

characterizations." Cohen's Handbook of Federal Indian Law § 3.02 

(2015). "Some states administer lands set aside for tribal groups 

that are not recognized by the federal government. Other states 

provide political recognition through representation on state 

Indian commissions or councils, or administer benefit programs for 

non-federally recognized tribes located within their boundaries."

Ibid. "At least one state has authorized a state-recognized tribe 

to create a police force, vested with most of the same powers as 

state or municipal officers." Ibid. "Another form of state 

recognition may consist of merely acknowledging that a particular 

tribal group constitutes the indigenous people of a particular 

area in the state." Ibid.
18 A-2756-15T1

Department of Education's Professional Development Program,

"Indian" means "[a] member of an Indian tribe or band, as 

membership is defined by the Indian tribe or band, including . . 

. any tribe or band recognized by the State in which the tribe or 

band resides"); 45 C.F.R. § 96.44(b) (finding "[a]n organized 

group of Indians" eligible for a block grant "based on [s]tate 

recognition if the State has expressly determined that the group 

is an Indian tribe," including by a "statement of the State's 

chief executive officer verifying" state recognition); 45 C.F.R.

§ 1336.33(a)(3)(ii),(4)(ii) (providing the eligible groups for 

certain Native American programs under the HHS include

"[i]ncorporated non-Federally and State recognized" tribes).

We do not offer an opinion as to whether the resolution,

statutory enactments, or pronouncements by the State officials 

cited in the complaint were sufficient under the past or present 

federal standards to correctly bestow upon plaintiff the federal 

benefits it claims it lost and will lose as a result of the State's 

actions. On a motion to dismiss the complaint, it is sufficient 

that the complaint alleges they were. We decide only that the 

court erred by not accepting as true the facts alleged in the 

complaint and by determining, without regard to the complaint's 

factual allegations or the federal standards for state 
19 A-2756-15T1

recognition, that the State did not grant recognition in the first 

instance. 

Reversed and remanded. We do not retain jurisdiction.