September 6, 2017

In Bridgeton, New Jersey, nestled in a marshy hollow between the Cohansey and Delaware Rivers, small houses with peeling paint sit close together, yards choked by encroaching scrub pines. Those who live here often call one another “aunt” and “uncle,” both out of respect and because most are related, by blood or by marriage. The Nanticoke Lenni-Lenape are not an affluent tribe, but they are deeply proud of their way of life and their ancestral claim to this land.

Yet despite their history here that reaches back before European colonization, the state of New Jersey stopped recognizing the Nanticoke Lenni-Lenape as a tribe in 2011. Now, a recent court decision has given them new hope to reattain their tribal status.

Tribal status affords the approximately 3,000 members of the Nanticoke Lenni-Lenape, who mostly live in the more rural southern half of the state, a much-needed financial foothold. For decades, elderly members of the Nanticoke Lenni-Lenape have depended on federal benefits for healthcare. College-bound teenagers excelled academically in order to secure scholarships for which they qualified based on their tribal membership. Artisans found a steady income stream from the sale of handmade crafts marked “Indian-made.”

Those economic opportunities, along with formal recognition of cultural identity, changed in 2011 when a staffer at the New Jersey Commission on American Indian Affairs sent a two-sentence email to the federal government reporting that New Jersey recognized no American Indian tribes. This directly contradicted a 1982 resolution passed in the state legislature recognizing the Nanticoke Lenni-Lenape and two other tribes.

“Our children have lost critical scholarship funding, and our crafters have suffered severe financial losses,” Nanticoke Lenni-Lenape Councilman John Norwood told The Progressive.

“A lot of the community, especially senior citizens, derive their basic income from selling crafts made the way they were taught by their ancestors,” says Greg Werkheiser, a lawyer with Cultural Heritage Partners. “The law in the U.S. is very strict: if you label something ‘Indian-made,’ and you aren’t state-recognized, you can be criminally prosecuted and fined a quarter of a million dollars. A drum will sell for upwards of $500 if it’s Indian-made, maybe $20 if it isn’t.”

“It’s very difficult to sustain a Native American arts and crafts business without state recognition,” says Denise Gibbs, who runs a crafts store with her daughter, Nneka Kellam. “We’re unable sell our crafts at numerous powwows and craft shows simply because many of them require artisans to be enrolled in a state- or federally-recognized tribe. The loss of state recognition has impacted our business severely.”

Kellam adds that the toll of the ongoing struggle is more than a financial one.

“We find ourselves constantly having to explain our identity, culture, and authenticity as Indians,” she says. “We often have to refer people to our website and direct them to links about our tribe to verify our history…. It’s emotionally draining to have to defend ourselves and prove who we are.”

Werkheiser is representing the tribe pro-bono in dual civil rights lawsuits– one in state court, alleging violations of the New Jersey Constitution, and one in federal court, alleging violations of the U.S. Constitution.

“For two years after they first denied recognition, we met with Chris Christie’s staff and leadership in the Attorney General’s office,” Werkheiser says, describing negotiations around the wording of a letter that could be sent from the state to federal agencies indicating that the claim that the tribe was not recognized was in error. “The day [we were told] it was supposed to be finalized and signed was the same day that Bridgegate happened,” he says, referring to a major political retaliation scandal involving four top aides to Christie.

“For six months it was impossible to get anybody in the New Jersey leadership on the phone,” Werkheiser says. “By the time we came back to the table…the state withdrew back into this hardline position. After exhausting all of our non-litigation options, we had no choice but to file suit.”

A subsequent attempt by the state to have the case dismissed, arguing that previous resolutions recognizing the tribe weren’t “binding,” was initially successful in Superior Court, but then overturned in July by an Appellate panel of three judges. The Superior court “applied the wrong legal standard and incorrectly failed to accept factual allegations in the complaint as true,” the panel stated.

The Appellate ruling means the tribe can move forward with both the state and federal lawsuits. The New Jersey Attorney General’s office declined to comment for this story, citing the ongoing litigation.

Norwood and Werkheiser both speculate about ulterior motives of officials in a state that’s home to Atlantic City, the once-thriving East Coast casino destination.

“Over the past 15 years, beginning when Donald Trump owned Atlantic City casinos, there has been an effort by the casino interests to degrade any recognition of American Indians in New Jersey,” Werkheiser says. “They assume American Indian equals casino, and that assumption became part of the state’s position and policy. The most frequent question I got in that first year when the state was communicating with us, was, ‘Can you assure me that the tribe doesn’t want casinos?’”

In fact, the Nanticoke Lenni-Lenape have never pursued either federal recognition or gaming rights, and, tribal leadership says, they have no intention of doing so. Not only is the tribe morally opposed to gambling (their tribal laws prevent them from profiting from any form of “vice”), they cannot be granted gaming rights without federal recognition, the application for which requires many years and millions of dollars.

Werkheiser expects to schedule depositions in the coming months, and he hopes to have the matter resolved before the Christie Administration leaves office in January.

Kate Morgan is a freelance journalist and storyteller. She lives in Pennsylvania.