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Unalachtigo Band of the Nanticoke-Lenni Lenape Nation v. State

February 28, 2005

UNALACHTIGO BAND OF THE NANTICOKE-LENNI LENAPE*FN1 NATION AND JAMES BRENT THOMAS, SR., PLAINTIFFS-APPELLANTS,
v.
STATE OF NEW JERSEY AND DONALD DIFRANCESCO, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. C-131-01.

Before Judges Lefelt, Fuentes and Falcone.

The opinion of the court was delivered by: Lefelt, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 4, 2005

Plaintiffs, Unalachtigo Band of the Nanticoke Lenni Lenape Nation and James Brent Thomas,*fn2 their tribal chairperson and war chief, claimed to be direct descendents of those Native Americans who, after 1758, lived on the Brotherton Reservation in what is now Shamong Township, Burlington County. Plaintiffs asserted that when their ancestors sold the reservation land in 1801 and then sold the hunting and fishing rights in 1832, to New Jersey, the sales violated both (a) the 1758 Treaty with the Colony of New Jersey, which had established the Brotherton Reservation, and (b) the 1790 federal Indian Nonintercourse Act, 25 U.S.C.A. § 177, which prohibited the sale of Indian land without federal consent. Because of these violations, plaintiffs sought from defendants, State of New Jersey and the then acting governor, in accordance with the 1758 Treaty, exclusive use, occupancy and control, and the removal of"all non-Indian[s]" from the reservation.

Plaintiffs appeal from the trial court's dismissal of their complaint for lack of subject matter jurisdiction over the state and federal claims and for the absence of a Bureau of Indian Affairs (BIA) determination that the Unalachtigo Band constitutes an Indian tribe, directly descendent from those Indians who lived on the Brotherton reservation. We affirm the trial court's dismissal of plaintiffs' complaint and conclude that the federal courts have exclusive jurisdiction over plaintiffs' land claim.

I.

Here are the pertinent facts, reaching back to the earliest days of New Jersey's history, upon which plaintiffs rely to establish their claim. In 1758, in exchange for the cessation of hostilities between New Jersey's native peoples and its encroaching new citizenry, the Colony of New Jersey entered into the Treaty of Easton, which was ratified by an Act"[empowering] certain Persons to purchase the Claims of the Indians to Land in this Colony." Laws of the Royal Colony of New Jersey, 1746-1760, Vol.3, New Jersey Archives, 3rd Series 579 (1982) (hereinafter"Reservation Trust Act" or"Act").

The Act, which implemented the Treaty, authorized Commissioners to purchase the rights and claims"of all or any of the Indian Natives of this Colony" to the majority of lands South of the Raritan River. Ibid. In exchange for the Indians allowing the land to be purchased, the Act authorized the Commissioners to purchase a 3,044-acre reservation, which became known as the Brotherton reservation, and to hold the land in trust for the Indians living south of the Raritan River. Ibid. The Act specifically authorized the Commissioners to"take a Deed or Deeds... in Trust for the Use of the said Indian Natives, who have or do reside in this Colony, South of the Rarit[a]n, and their Successors, forever." Ibid. The Act provided, however, that"it shall not be in the Power of the said Indians, or their Successors, or any of them, to lease or sell to any Person or Persons, any Part thereof." Ibid. The Act further prohibited non-Indians from settling on the reservation and authorized warrants for the removal of any non-Indians who settled on the reservation. Id. at 579-580. The Act further provided that"no Conveyance... by the Indians, shall prejudice any Right they now have to hunt on any un[e]nclosed Lands, or fish in the Rivers and Bays of this Colony." Id. at 580.

The 3,044 acres were purchased in Evesham Township, now Shamong Township, in Burlington County. Approximately 100 to 200 Lenni Lenape began living on the Brotherton Reservation in tranquility, which continued for several years thereafter.

When New Jersey adopted its first Constitution in 1776, the Constitution continued all laws then in force, except those inconsistent with the new constitution. The existing laws, including the Reservation Trust Act, were to"remain in full force, until altered by the Legislature." N.J. Const. of 1776 art. XXI. The Legislature has never formally repealed the Act even after three revisions of our Constitution.

In 1796, however, the Indians living on the reservation convinced the Legislature to change the restrictive ownership provisions of the Act and appoint new commissioners to"take charge of the lands, and lease out the same, from time to time," as would be most conducive to the Indians. State of New Jersey v. Wright, 117 U.S. 648, 651, 6 S.Ct. 907, 909, 29 L.Ed. 1021, 1023 (1886).

The record does not disclose the circumstances of any reservation leases that may have been executed, but some five years later, in 1801, a majority of the remaining Native Americans living on the reservation decided to move to New Stockbridge, New York, to join their relatives, and petitioned the New Jersey Assembly to sell their land.

This time, again at the Indians' request and with their consent, the Legislature passed a law that authorized the division of the reservation into farms for sale with the proceeds to be used for the Indians' trip to and settlement in New Stockbridge. L. 1801, c. 63. Pursuant to this law, the lands were sold, deeds of conveyance in fee-simple were given to the purchasers, and a group of Lenni Lenapes moved from the reservation to New Stockbridge. State of New Jersey v. Wright, supra, 117 U.S. at 651, 6 S.Ct. at 909, 29 L.Ed. at 1024.

In 1832, approximately forty of the remaining Native Americans who were living in New Stockbridge, asked their elderly chief, a Princeton College graduate, to obtain compensation from the New Jersey Legislature for their hunting and fishing rights under the Reservation Trust Act. William J. Allinson, ShawusKuKhKung (Wilted Grass - Bartholomew S. Calvin at 5-6 (The Monmouth County Historical Ass'n 1920).

Upon the Chief's application, and even though the Legislature believed these rights had previously been sold in 1801, the Legislature awarded the Native Americans $2,000, which was considered to be"not large," but an act of"justice and kindness." Id. at 7. In thanking the Legislature for their kindness, the Chief extolled the relationship between New Jersey and the Native Americans living in the State by explaining that"[n]ot a drop ...


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