The intricate tapestry of tribal recognition in the United States is woven with threads of federal law, state sovereignty, historical documentation, and the enduring spirit of Native American tribes. While federal recognition is often considered the most coveted status, granting access to a wide array of federal programs and benefits, many tribes find themselves navigating the complex landscape of state recognition. This path, while often less comprehensive than its federal counterpart, can still provide vital support and establish a government-to-government relationship with the state. However, the significance and implications of state recognition can vary greatly, leading to ambiguity and, as is the case with the Nanticoke Lenni-Lenape Tribe in New Jersey, legal disputes. This article delves into the ongoing struggle of the Lenni-Lenape Tribe in New Jersey as the state seemingly reconsiders its acknowledgment of the tribe, examining the intricacies of state recognition and its potential consequences.
The Nanticoke Lenni-Lenape Tribal Nation, a significant presence in New Jersey, second in number only to the Ramapough Mountain Indians, initiated legal action against the state, alleging that New Jersey had effectively withdrawn its official recognition of the tribe. The lawsuit, filed in July, centers around the state’s perceived failure to rectify an employee’s denial of the tribe’s existence, along with that of two other state-recognized tribes. The tribe argues that this perceived retraction has resulted in the loss of federal benefits and economic protections that they had enjoyed since the 1980s, benefits that were predicated on their state-recognized status. The heart of the matter lies in the interpretation of a 1982 state legislative resolution, which the tribe asserts constitutes official state recognition. The tribe bolsters its claim by pointing to their recognition through state statute and their permanent seats on the New Jersey State Commission on American Indian Affairs.
To fully grasp the complexities of this situation, it is essential to understand the different levels of tribal recognition. Federal recognition, often referred to as the "gold standard," grants tribes sovereign status and access to a wide range of federal programs and services, including funding for healthcare, education, and housing. However, the process of achieving federal recognition is notoriously arduous, requiring extensive documentation of continuous tribal existence, historical ties, and distinct cultural practices. Many tribes, due to various factors such as incomplete records or lack of a land base, find it difficult, if not impossible, to meet the stringent requirements for federal recognition. Irene Kawanabe, director of the National Conference of State Legislatures’ (NCSL) State-Tribal Institute, highlights the challenges faced by many tribes in achieving federal recognition, emphasizing the time-consuming and resource-intensive nature of the process.
Recognizing the limitations of federal recognition, many tribes turn to state recognition as a means of solidifying their presence and establishing a formal relationship with the state government. State recognition can take various forms, including the enactment of state laws, joint or concurrent resolutions from state legislatures, administrative recognition by a state executive agency, or a proclamation or executive order from a governor. Regardless of the method employed, state recognition ideally signifies the acknowledgment of the tribe’s presence and the commitment to a government-to-government relationship. This relationship can, in turn, lead to consultations on issues affecting the tribe, collaborative projects, and access to certain state-level benefits. However, the actual impact of state recognition can vary significantly depending on the state’s administrative capacity and willingness to engage with recognized tribes. As Kawanabe notes, recognition without a corresponding administrative apparatus to foster tribal-state relations can be largely symbolic.
Currently, thirteen states have established processes for recognizing tribes, primarily concentrated in the Eastern United States, with a near-continuous belt stretching from Virginia to Louisiana, with Mississippi being the exception. Virginia’s Pamunkey Indian Tribe achieved a significant milestone in 2015, becoming the first tribe in the state to receive federal recognition, highlighting the potential for state recognition to serve as a stepping stone towards federal acknowledgement.
In the case of the Lenni-Lenape Tribe, the state of New Jersey contends that the 1982 resolution was intended solely to facilitate the tribe’s eligibility for federal funding and did not constitute formal recognition of the tribe as a sovereign government. In its motion to dismiss the tribe’s lawsuit, the state argued that it recognized the tribe "only in the limited cognitive sense," a stance that has been met with considerable resistance from the tribe and its supporters. Martha Salazar, senior policy specialist at the NCSL’s State-Tribal Institute, points out that some states, like Texas, have acknowledged tribes through resolutions without establishing a formal recognition process, emphasizing that the nature and implications of state recognition can vary widely.
The Lenni-Lenape Tribe asserts that New Jersey’s refusal to affirm the legislative resolution as formal recognition has resulted in substantial financial losses, including the denial of approximately $600,000 in grants from the U.S. Department of Health and Human Services, the loss of favored contractor status designed to support disadvantaged businesses, and the inability to label products as "Indian-made." The tribe’s struggle to maintain its state-recognized status is not a new development. A 2012 investigation by the U.S. Government Accountability Office (GAO) revealed inconsistencies in federal agencies’ understanding of New Jersey’s stance on tribal recognition.
The GAO’s investigation, which examined federal spending on nonfederally recognized tribes between 2007 and 2010, found that the Department of Health and Human Services had awarded funding to the Nanticoke Lenni-Lenape Tribe and the Powhatan Renape Nation under programs intended for state-recognized tribes, despite New Jersey’s claim that it did not consider these entities to be state-recognized. The GAO report also highlighted similar instances in other states, where the Department of Education had awarded funding to state-recognized tribes that did not appear to meet the statutory requirements for the relevant federal programs. The GAO’s findings prompted calls for federal agencies to strengthen their oversight and ensure that grants are awarded only to eligible tribes and that federal financial reporting regulations are strictly enforced.
The ongoing legal battle between the Nanticoke Lenni-Lenape Tribal Nation and the state of New Jersey underscores the complexities and uncertainties surrounding state recognition. The tribe’s eligibility for an ongoing Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) contract, which is contingent on its recognition status, has been called into question by the federal government, further exacerbating the tribe’s precarious situation. The tribe’s business, NLT Management Services LLC, is facing the need to verify its eligibility for Section 8(a) status under a Small Business Administration program for tribally owned small businesses, putting dozens of jobs at risk. The tribe argues that its members rely heavily on the employment opportunities created by its 8(a) contracts for their livelihood and that the potential loss of these contracts would have a devastating impact on the community.
As the Nanticoke Lenni-Lenape Tribal Nation and the state of New Jersey await a ruling on the state’s motion to dismiss from U.S. District Judge Renee Marie Bumb, the future of the tribe’s state recognition remains uncertain. The outcome of this case will have significant implications for the tribe’s access to federal funding, economic opportunities, and its ability to maintain its cultural identity. The case also serves as a reminder of the importance of clear and consistent policies regarding tribal recognition, both at the state and federal levels, to ensure that tribes receive the support and resources they need to thrive. The legal representation for the Nanticoke Lenni-Lenape Tribal Nation is being provided by Frank L. Corrado of Barry Corrado & Grassi PC, along with Gregory A. Werkheiser and L. Eden Burgess of Cultural Heritage Partners PLLC. Acting New Jersey Attorney General John J. Hoffman, Assistant Attorney General Stuart M. Feinblatt, and Deputy Attorney General Laura M. Console are representing the state. The case is formally known as Nanticoke Lenni-Lenape Tribal Nation v. John Jay Hoffman, case number 1:15-cv-05645, in the U.S. District Court for the District of New Jersey.