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

May 20, 2008


The opinion of the court was delivered by: Rodriguez, Senior District Judge



This matter comes before the Court on the motion of Intervenor StockbridgeMunsee Community, Band of Mohican Indians ("the Stockbridge-Munsee") to dismiss the Amended Complaint under Rule 19 of the Federal Rules of Civil Procedure for failure to join a necessary and indispensable party.*fn1 For the reasons discussed below, the Stockbridge-Munsee's motion is denied. Nonetheless, the case is dismissed because Plaintiff Unalachtigo Band of the Nanticoke-Lenni Lenape Nation ("Plaintiff") lacks standing.


A. Premise and Procedural History of this Action

Plaintiff is an Indian tribe, albeit one that is unrecognized by either the State of New Jersey or the United States government. Instead, it is organized as a New Jersey non-profit corporation. It claims to be the successor in interest to an Indian group for which the Colony of New Jersey set aside a tract of land in Burlington County in 1758. This land came to be known as the Brotherton Reservation. Plaintiff alleges the State of New Jersey unlawfully sold the reservation in 1801 by failing to seek and receive congressional approval of the sale pursuant to the requirements of the Indian Nonintercourse Act, which is now codified at 25 U.S.C. § 177.*fn2

In December 2005, Plaintiff filed its Complaint, essentially seeking to reclaim the reservation. It named as Defendants several agencies and officials in Burlington County (collectively "the Burlington County Defendants"). Although the Burlington County Defendants filed their Answer shortly thereafter, Plaintiff eventually stipulated to their dismissal and filed an Amended Complaint in which it named as Defendants the State of New Jersey and Governor Jon S. Corzine (collectively "the State Defendants").

In the Amended Complaint, Plaintiff repeats its primary claim that the State alienated the Brotherton Reservation in violation of the Indian Nonintercourse Act. It also adds claims for breaches of contract and fiduciary duty based on the Reservation Trust Act, a provincial law passed on August 12, 1758 that made official the Colony's purchase of Brotherton for the Indians. Thus, Plaintiff seeks a declaration voiding the reservation's sale, as well as a finding that the State breached its contractual and fiduciary obligations. It also seeks an award of various damages and fees.

The State Defendants responded by moving under Federal Rules 12(b)(1) and (6) to dismiss the Amended Complaint for lack of subject matter jurisdiction and failure to state a claim. The motion was not decided, however, because it was withdrawn without prejudice after another Indian tribe--the Stockbridge-Munsee--intervened and filed its motion to dismiss under Rule 19.*fn3 In essence, the Stockbridge-Munsee claims the Brotherton Indians merged with it in 1802, making it the rightful successor to the reservation. Thus, based on its claimed interest in Brotherton, the Stockbridge-Munsee argues it is a necessary party that must be joined under Rule 19(a).*fn4 Moreover, because it declines to waive its sovereign immunity,*fn5 it maintains it cannot be joined and this action should be dismissed under Rule 19(b).*fn6

Plaintiff opposes the Stockbridge-Munsee's motion for two reasons. First, it contends the Stockbridge-Munsee is not a successor to the Brotherton Indians and therefore lacks an interest in this litigation. Second, it alternatively argues the Stockbridge-Munsee waived its sovereign immunity by moving to intervene and therefore can be joined as a party.

In February 2007, the Court indicated its desire to determine if either Plaintiff or the Stockbridge-Munsee is a successor in interest to the Brotherton Indians. To help resolve this question, the Court granted the New Jersey Land Title Association's ("NJLTA")*fn7 motion to act as amicus curiae and directed that organization to brief the tribal successorship issue.

The Court also inquired of both Plaintiff and the Stockbridge-Munsee whether they wished to submit additional historical evidence on the successorship issue. At a hearing in February 2007, Plaintiff indicated that it had submitted all the necessary documentation. See Hearing Tr., 2/14/07, 31:2-13. For its part, the Stockbridge-Munsee briefly considered submitting additional historical evidence in support of its claim, but ultimately declined to do so.*fn8 See Stockbridge-Munsee Ltr. to the Court, 3/2/07.

Meanwhile, the NJLTA submitted the requested amicus briefing. It agreed with the Stockbridge-Munsee's basic merger theory, but nonetheless expressed doubt regarding whether any tribe actually succeeded the Brotherton Indians.

Thus, the central question is which entity, if any, is a successor in interest to the Indian group for which the Brotherton Reservation was established. In order to properly understand this issue, it is essential to review the available and relevant history of New Jersey's native population and the Brotherton Reservation itself.

B. Relevant History Regarding

New Jersey's Indians and the Brotherton Reservation New Jersey's aboriginal people were known as the Lenape or Delaware Indians.*fn9

It is a mistake, however, to classify the Lenape people as being members of a single entity because they never belonged to one unified tribe or political unit. Goddard:1, supra, 213; KRAFT, supra, 4, 6; WESLAGER, supra, 42. Instead, at the time of European contact, the Lenape Indians actually formed many distinct political entities, see WESLAGER, supra, 32- 33, which, despite their independence from one another,*fn10 shared certain cultural and linguistic characteristics, Goddard:1, supra, 213. These similarities served to distinguish the Lenape people from other Indians in the mid-Atlantic and Northeastern regions of what would become the United States. KRAFT, supra, 6.

In general terms, the Lenape Indians were historically categorized into two groupings, based on geographic and dialectal patterns. Goddard:1, supra, 213; KRAFT, supra, 4. In the northern part of the Lenape area--northern New Jersey and southeastern New York--were the bands whose members spoke the Munsee dialects. Goddard:1, supra, 213; KRAFT, supra, 4. In the eighteenth century, the name "Munsee" was applied generally to all Munsee-speaking bands who had formerly lived north of the Raritan River. KRAFT, supra, 7.

South of the Delaware Water Gap and Raritan Valley, in what now includes central and southern New Jersey, eastern Pennsylvania, and Delaware, were the Lenape groups that spoke the Unami dialects.*fn11 Goddard:1, supra, 215; KRAFT, supra, 4. During the 1700s, the term "Unami" spread rapidly as a convenient designation for all Indians in New Jersey who lived south of the Raritan River. KRAFT, supra, 7.

The various Lenape bands, as they existed before European contact, did not remain static or unchanged. Instead, "European colonization, epidemic diseases, warfare, alcoholism, and other disruptive factors led to the disintegration of these original groups." KRAFT, supra, 4. Thus, the former band structures disappeared. WESLAGER, supra, 43. The remaining individuals combined with other remnant populations to form new bands. KRAFT, supra, 4. As European settlement continued its encroachment, these new groups began migrating west into the Pennsylvania frontier and beyond. See Goddard:1, supra, 221-222; KRAFT, supra, 450, 452-53.

Not all Lenape people left their original homeland; a few groups remained behind in New Jersey. WESLAGER, supra, 261; Goddard:1, supra, 222. These remaining groups were separate from and independent of those who had already moved westward.

WESLAGER, supra, 261. By the mid-eighteenth century, however, the remaining groups constituted nothing more than an "insignificant minority." KRAFT, supra, 440. Indeed, New Jersey Governor Francis Bernard noted in late 1758 that "an exact return" made to him indicated that only 270 Indians remained in the province. EDWARD MCM.

LARRABEE, RECURRENT THEMES AND SEQUENCES IN NORTH AMERICAN INDIAN- EUROPEAN CULTURECONTACT 11 (Am. Philosophical Soc'y 1976). This is particularly striking when compared to the estimated 3,000 to 4,000 Lenape Indians who lived in New Jersey prior to European contact. See WESLAGER, supra, 42.

In addition to being drastically reduced in numbers, New Jersey's remnant Indians saw significant changes to their historic ways of life during the eighteenth century. They no longer resided in their traditional villages, but instead "were scattered in rural areas, a few families, others there, usually housed in wretched cabins." Id. at 261. To say the least, their economic and social situations were often grim, with one researcher characterizing them as "a pitiful, ragged, and landless people almost continually harassed by white settlers . . . ." KRAFT, supra, 441. Nonetheless, the remnant Indians kept to themselves and, for a while, the New Jersey government paid them little attention. WESLAGER, supra, 261. This apatetic attitude would soon change, however.

As the economic situation of the remaining New Jersey Lenape worsened, Presbyterian adherents took an interest in them. Id. One particular organization, the Society for Propagating Christian Knowledge, sent a missionary named David Brainerd to live and work among the Indians. KRAFT, supra, 441. He first spent a year unsuccessfully ministering to various Indian groups in Pennsylvania. See WESLAGER, supra, 262. In 1745, however, he turned his attention to working with the remnant bands of Unami in southern New Jersey. Id. He settled and began his mission at a place called Crosswicks,*fn12 where several Indian families lived. Id. By March 1746, the Lenape population at Crosswicks increased to between 130 and 150 persons. Id. at 263; LARRABEE, supra, 5.

The land at Crosswicks was insufficient to support its growing Indian population. WESLAGER, supra, 263. Moreover, local colonists were apprehensive about the Indians' presence, and continually harassed the group. KRAFT, supra, 441. Most, though not all, of the Crosswicks Indians therefore moved about fifteen miles northeast to a site near the town of Cranbury, a site which Brainerd called Bethel. Id.; WESLAGER, supra, 263. By the mid-eighteenth century, the Indians who lived there came to be known by colonists as the "Cranbury band," or the "Bethel Indians." LARRABEE, supra, 5.

After David Brainerd's death in 1747, his brother John, who was also a minister, carried on with the mission at Cranbury. WESLAGER, supra, 263. Unfortunately, however, the Cranbury band continued to suffer harassment from nearby colonists. KRAFT, supra, 441. Consequently, John Brainerd attempted to acquire new land where the Indians could live in peace and security. WESLAGER, supra, 263. To this end, the Society for Propagating Christian Knowledge approved an effort to purchase some four thousand acres for a new Indian community. LARRABEE, supra, 7. Likewise, a Quaker group called the New Jersey Association for Helping Indians offered additional financial assistance for the reservation effort. WESLAGER, supra, 263.

Despite sectarian support, the plan for a new community did not come immediately to fruition, mainly because of the outbreak of the French and Indian War. Id. This conflict constituted a major crisis for the New Jersey provincial government and forced it to take action on Indian affairs. It also occasioned a split among the Delaware people who had previously moved west, with some fighting for the English and others fighting alongside the French. KRAFT, supra, 456. Although New Jersey was some distance from the fighting in the Pennsylvania frontier, there were reports of murders by the French and their Indian supporters near the province's borders. WESLAGER, supra, 263. Later, Delaware war parties aligned with the French actually crossed into New Jersey, and attacked individual farms ...

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