united states district court for the district of new … · [email protected]...

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

__________________

NANTICOKE LENNI-LENAPE TRIBAL NATION, ) )

Plaintiff ) )

v. ) ) CASE NO. 15-cv-5645-RMB-JS

JOHN JAY HOFFMAN ) ACTING ATTORNEY GENERAL OF NEW JERSEY, ) Return Date: June 20, 2016 IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES, )

) Oral Argument Requested Defendant. )

) ------------------------------------------------------------------------

PLAINTIFF’S BRIEF IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS SECOND AMENDED COMPLAINT PURSUANT TO FED. R. CIV.

P. 12(b)(1) AND 12(b)(6)

Frank L. Corrado (SBN 022221983) Barry, Corrado & Grassi, P.C. 2700 Pacific Avenue Wildwood, NJ 08260 [email protected] Tel: 609.729.1333

Gregory A. Werkheiser L. Eden Burgess Cultural Heritage Partners, PLLC 2101 L Street NW, Suite 800 Washington, DC 20037 [email protected] [email protected] Tel: 202.567.7594

Attorneys for Plaintiff

Case 1:15-cv-05645-RMB-JS Document 40 Filed 06/06/16 of 34 PageID: 518

i

TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................................................. i TABLE OF AUTHORITIES .......................................................................................................... ii I. PRELIMINARY STATEMENT ........................................................................................ 1

II. STATEMENT OF THE CASE ........................................................................................... 2

III. STANDARD OF REVIEW ................................................................................................ 4

IV. LEGAL ARGUMENT ........................................................................................................ 6

A. BECAUSE THE TRIBE’S COMPLAINT FITS SQUARELY WITHIN YOUNG, THE 11TH AMENDMENT DOES NOT PROVIDE GROUNDS FOR DISMISSAL ................................................................................................... 6

1. The Young Exception. ................................................................................. 6

i. Allegations of ongoing violations of federal law. ........................... 8 ii. Prospective Relief. .......................................................................... 8

2. The State Is Not The Real Party In Interest. ............................................. 10

B. BILLS PROPOSED IN THE STATE LEGISLATURE AFTER THE 2002 COMMISSION LAW AMENDMENTS ARE IRRELEVANT........................... 12

C. THE TRIBE’S FEDERAL CLAIMS ARE JUSTICIABLE AND WITHIN THE COURT’S AUTHORITY TO ADJUDICATE ADJUDICATE .................. 14

1. Tribal Recognition Is Not A Political Question. ....................................... 14

2. None Of The Baker Factors Are Inextricable From The Tribe’s Claims. ...................................................................................................... 15

3. The Tribe Asks The Court To Enforce State Recognition, Not Determine It. ............................................................................................. 19

D. THE TRIBE PROPERLY SETS FORTH ITS DUE PROCESS AND EQUAL PROTECTION CLAIMS. ...................................................................... 19

1. Procedural Due Process. ........................................................................... 19

i. The Tribe Alleges That Defendant Is Violating Its Liberty And Property Interests...................................................... 20

ii. What Process is Due. .................................................................... 21

2. Substantive Due Due Process. .................................................................. 23


ii

i. The Tribe Alleges That It Was Deprived Of Fundamental Rights. ..................................................................... 23

ii. The Tribe Alleges That Defendant’s Conduct Shocks the Conscience. ................................................................. 25

3. Equal Protection. ....................................................................................... 26

V. CONCLUSION ................................................................................................................. 28

TABLE OF AUTHORITIES

Cases

Amalgamated Ind. v. Historic E. Pequot, 2005 Ct. Sup. 8152, No. X03 CV 03 4000287 (Conn. Super. Ct. 2005 ...................................................................................... 14, 15, 16

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ....................................................................................... 5, 6

Baker v. Carr, 369 U.S. 186 (1962) ............................................................................ 15, 16, 17, 18

Bd. of Regents of State Colleges v. Roth, 408 U.S. 564 (1972) .............................................. 20, 21

Bell Atlantic v. Twombly, 550 U.S. 544 (2007) .......................................................................... 5, 6

Biliski v. Red Clay Consol. Sch. Dist. Bd. of Educ., 574 F.3d 214 (3d Cir. 2009) ................. 20, 22

Brown v. Oneonta, 221 F.3d 329 (2d Cir. 2000) .......................................................................... 27

Certain Underwriters at Lloyd’s of London v. Alesi, Civil No. 10-1796, 2012 WL 2979037 (D.N.J. July 20, 2012) .................................................................................................... 14

City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) .............................................. 26

Cuevas v. Wells Fargo Bank, N.A., 2015 U.S. Dist. LEXIS 116472 (D.N.J. Sept. 1, 2015) ........................................................................................................................................... 5

Edelman v. Jordan, 415 U.S. 651 (1974) ........................................................................... 9, 10, 11

Ex parte Young, 209 U.S. 123 (1908) .................................................................................... passim

Green v. Mansour, 464 U.S. 64 (1985) ........................................................................................... 9

Gristede’s Foods, Inc. v. Unkechauge Tribe, 660 F. Supp. 2d 442 (E.D.N.Y. 2009) ............................................................................................................................................. 15

Gross v. German Found. Indus. Initiative, 456 F.3d 363 (3d Cir. 2006) ............................... 16, 18


iii

Hafer v. Melo, 502 U.S. 21 (1991) ................................................................................................. 7

Hall v. Easton Area Sch. Dist., 2012 U.S. Dist. LEXIS 20695 (E.D. Pa. Feb. 17, 2012) ............................................................................................................................................. 23

Home Tel. & Tel. Co. v. City of L.A., 227 U.S. 278 (1913) ............................................................ 7

Houbigant, Inc. v. Federal Ins. Co., 374 F.3d 192 (3d Cir. 2004) ............................................... 14

Idaho v. Coeur d’Alene Tribe, 521 U.S. 261 (1997) .............................................................. passim

In re Ayers, 123 U.S. 443 (1887) .................................................................................................. 10

Kaucher v. Cnty. of Bucks, 455 F.3d 418 (3d Cir. 2006) .............................................................. 23

Massachusetts v. Laird, 400 U.S. 886 (1970) .............................................................................. 17

Mathews v. Eldridge, 424 U.S. 319 (1976) ................................................................................... 22

MCI Telecomm. Corp. v. Bell Atlantic-Pa., 271 F.3d 491 (3d Cir. 2001) ................................ 7, 12

Meyer v. Snyders Lance, Inc., 2012 U.S. Dist. LEXIS 175537 (M.D. Ga. Dec. 12, 2012) ............................................................................................................................................... 6

Mullen v. Thompson, 155 F. Supp. 2d 448 (W.D. Pa. 2001) .......................................................... 5

N.J. Educ. Ass’n v. New Jersey, 2012 U.S. Dist. LEXIS 28683 (D.N.J. Mar. 5, 2012) ...................................................................................................................................... passim

Narragansett Tribe of Indians v. S. R.I. Land Dev. Corp., 418 F. Supp. 798 (D.R.I. 1976) ................................................................................................................................. 15

New York v. Shinnecock Indian Tribe, 400 F. Supp. 2d 486 (E.D.N.Y. 2005) ............................. 15

Pennoyer v. McConnaughy, 140 U.S. 1 (1891) ............................................................................ 11

Phillips v. Cnty. of Allegheny, 515 F.3d 224 (3d Cir. 2008) ........................................................... 6

Pinker v. Roche Holdings Ltd. 292 F.3d 361 (3d Cir. 2002) ......................................................... 5

Pyke v. Cuomo, 258 F.3d 107 (2d Cir. 2001) ............................................................................... 27

Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ........................................................................ 23, 24

Robinson v. Salazar, 838 F. Supp. 2d 1006 (E.D. Cal. 2012) ...................................................... 15

Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829 (2003) ................................................. 15


iv

Schall v. Joyce, 885 F.2d 101 (3d Cir. 1989) .................................................................................. 7

Shinnecock Indian Tribe v. Kempthorne, No. 06-5013, 2008 U.S. Dist. LEXIS 75826 (E.D.N.Y. Sept. 30, 2008) .................................................................................................. 15

U.S. ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506 (3d Cir. 2007) .................................. 5

United States v. Montoya de Hernandez, 473 U.S. 531 (1985) .................................................... 15

United States v. Munoz-Flores, 495 U.S. 385 (1990) ................................................................... 18

Vargas v. City of Phila., 783 F.3d 962 (3d Cir. 2015) .................................................................. 26

Verizon Md., Inc. v. Pub. Serv. Comm’n, 535 U.S. 635 (2002) .................................................. 7, 8

Virginia Office for Prot. and Advocacy v. Stewart, 563 U.S. 247 (2011) ......................... 7, 11, 12

Wargo v. Municipality of Monroeville, 646 F. Supp. 2d 777 (W.D. Pa. 2009) ............................ 26

Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77 (3d Cir. 2011) .................................................... 5

Washington v. Glucksberg, 521 U.S. 702 (1997) ......................................................................... 23

Constitutional Provisions

11th Amendment .................................................................................................................... passim

14th Amendment ......................................................................................................................... 2, 8

State Statutes

N.J.S.A. 26:8-49........................................................................................................................ 3, 14

N.J.S.A. 52:16A-53 ................................................................................................................... 3, 14

N.J.S.A. 52:16A-56(g) .................................................................................................................. 14

Rules

Fed. R. Civ. P. 12(b)(1)................................................................................................................... 4

Fed. R. Civ. P. 12(b)(6)................................................................................................................... 5

Fed. R. Civ. P. 8 .............................................................................................................................. 6


v

Other Authority

1-3 Cohen’s Handbook of Federal Indian Law § 3.02[9] (Nell Jessup Newton ed., 2012) ............................................................................................................................................. 17

Alexa Koenig & Jonathan Stein, Federalism and the State Recognition of Native American Tribes: A Survey of State-Recognized Tribes and State Recognition Processes Across the United States, 48 Santa Clara L. Rev. 79, 87 (2008) ................................. 17

Carlos Manuel Vázquez, Night and Day: Coeur d’Alene, Breard, and the unraveling of the Prospective-Retrospective Distinction in the Eleventh Amendment Doctrine, 87 Geo. L.J. 1, 34 (1998) ............................................................................ 9

Erwin Chemerinsky, Procedural Due Process Claims, 16 Touro L. Rev. 871 (2000) ............................................................................................................................................ 20

John Jeffries, In Praise of the Eleventh Amendment and Section 1983, 84 Va. L. Rev. 47 (1998) .......................................................................................................................... 8, 11

Shira Kieval, Note: Discerning Discrimination in State Treatment of American Indians Going Beyond Reservation Boundaries, 109 Columbia L. Rev. 94, 95 (2009) ............................................................................................................................................ 27


I. PRELIMINARY STATEMENT In this civil rights suit, Plaintiff Nanticoke Lenni-Lenape Tribal Nation (“Tribe” or

“Plaintiff”) asks the Court to enjoin Acting Attorney General of New Jersey Robert Lougy

(“Defendant”) from violating its rights, to order Defendant to honor New Jersey’s long-standing

obligation, and to confirm the Tribe’s status as a state-recognized tribe.

The matter is before the Court on Defendant’s motion to dismiss the Tribe’s Second

Amended Complaint. On April 12, 2016, at oral argument on Defendant’s first Motion to

Dismiss, the Court – after articulating its thinking – instructed the Tribe to do three things to help

it resolve Defendant’s Motion:

(1) Amend the Complaint to flesh out allegations that New Jersey continues to represent that

it has three recognized tribes. The Tribe did so. Second Amended Complaint (“Compl.”) ¶ 42.

In his second Motion to Dismiss, Defendant offers not a single word in response to these

allegations. He does not attempt to challenge their veracity, explain them away, or justify

how such actions comport with due process. He simply ignores them.

(2) Brief the Court more fully on 11th Amendment immunity and the Young exception. The

Tribe does so below. Defendant responded to the Court's instructions for a more detailed

explanation of his immunity issue largely by repeating his prior brief. The notable exception

is that Defendant now relies on a dissenting opinion in a Supreme Court case to urge this

Court to shield the Defendant from the Tribe’s well-pled claims.

(3) Determine whether the Tribe wishes to retain its equal protection claim. After further

review, the Tribe continues to press that claim, and more fully explicates its rationale below.


II. STATEMENT OF THE CASE

The Tribe initiated this case in July 2015, requesting injunctive and declaratory relief against

Defendant in his individual and official capacities. The Tribe then filed a First Amended

Complaint in October, limited to federal causes of action.1 After the Court held oral argument on

Defendant’s Motion to Dismiss the First Amended Complaint and deferred decision pending

further briefing, the Tribe filed a Second Amended Complaint in May 2016.

The Tribe alleges that Defendant seeks to deny its status as a state-recognized tribe without

due process and from an invidious motive, thus violating its fundamental rights under the

Fourteenth Amendment to the U.S. Constitution. Compl. ¶¶ 1, 38-41. Defendant again moves to

dismiss the Tribe’s claims (Brief in Support of State Defendant’s Motion to Dismiss the Second

Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), May 24, 2016 (“Pb ”)).2

The Tribe has a long history in New Jersey and the surrounding region, dating back

approximately 12,000 years. Compl. ¶ 10. The Tribe and its members suffered poor treatment for

centuries at the hands of the State. Compl. ¶¶ 11-16. In the late 1970s, New Jersey finally began

the long-overdue process of providing official state recognition to tribes (Compl. ¶¶ 21-30),

granting state recognition to three tribes, including Plaintiff, between 1980 and 1982 (Compl. ¶

28). The first resolution, a model for the subsequent two, stated, “The purpose of this concurrent

resolution is to recognize The Ramapough….” Compl. ¶ 26.

New Jersey went on to reaffirm the three tribes’ recognition, ipso facto, via two state statutes:

a 1992 law granting to the chiefs of the three named New Jersey tribes the power to correct birth

1 On October 13, 2015, the Tribe filed a parallel complaint in state Superior Court, alleging cognate state claims. 2 At the conclusion of oral argument, the Court expressed confidence in the Tribe’s procedural due process claim (Count I), and instructed the parties to provide supplemental briefing on the Young exception to 11th Amendment immunity. Oral Argument Transcript, April 12, 2016 (“Tr.”) 53:1-5. When the Tribe asked Defendant to consent to the filing of the Second Amended Complaint, Defendant conditioned his consent on the Tribe consenting to Defendant fully briefing a second Motion to Dismiss. Although compelled to respond again to Defendant’s other arguments, the Tribe maintains that 11th Amendment immunity remains the primary issue at this stage of the case.


certificates (N.J.S.A. 26:8-49), and a 1995 law forming the Commission on American Indian

Affairs, which reserved two seats for each of three named state tribes, and distinguished the three

tribes from other tribes and groups not recognized by New Jersey (N.J.S.A. 52:16A-53).3

New Jersey continued to affirm the Tribe’s status as a state-recognized tribe by issuing an

official report acknowledging the tribes’ status (Compl. ¶ 30), repeatedly confirming the status to

the federal government (id.), and providing public support to the state tribes (id. ¶¶ 29, 30). As a

result, the Tribe has operated as a state-recognized tribe, and received benefits connected to that

status, since 1982. Compl. ¶ 31.

When expedient, New Jersey continues to represent to the federal government that it has

three state-recognized tribes. Compl. ¶ 42. For example, the state Department of Children and

Families reported to the U.S. Department of Health & Human Services (HHS) in 2014 on the

state’s use of federal funds and services, maintaining that “New Jersey has … three State-

recognized tribes.” Compl. ¶ 42a, b. It also listed the Tribe as a partner in securing a multi-

million-dollar grant from the U.S. Centers for Disease Control. Compl. ¶ 42d. Even before

discovery, the Tribe has uncovered multiple recent instances in which the state has no problem

acknowledging the Tribe’s existence and status when it may benefit the state. Compl. ¶¶ 20, 42.

Nevertheless, Defendant – operating on the basis of a racial-stereotype-driven and irrational

belief that all American Indians want to run gaming facilities (Compl. ¶¶ 45, 49) – now professes

that after decades during which New Jersey treated the tribes as state-recognized, it was, to quote

the Court, “just kidding.” Tr. 9:23-25, 11:21-23, 23:6-14. Significant harm to the tribes began in

2012, when the Commissioners of the state’s Commission on Indian Affairs, as well as HHS

staffers, were surprised and alarmed to read in a federal General Accounting Office document

3 At the April 12 oral argument, the Court indicated its belief that these statutes constituted an “ipso facto” state recognition of the tribe. Tr. 53:12-14.


that New Jersey reported having no recognized tribes. Compl. ¶¶ 38-39. HHS’s Administration

on Families and Children (ACF) commented on the draft report that “at no time was information

provided to ACF by New Jersey…or any other Federal or State entity, that would call into

question the eligibility of the tribes.” Compl. ¶ 39. The Commission staffer who misinformed the

GAO did so in reliance on Defendant’s guidance. Defendant resurrected and expanded upon a

2001 letter from the Attorney General’s Gaming Division to the federal Indian Arts and Crafts

Board asserting that it was up to the Board, not New Jersey, to determine whether New Jersey

effectively recognized its tribes. Compl. ¶ 38, 49. Though the state itself debunked this reasoning

long ago (Compl. ¶ 30n), Defendant has not only revived the 2001 letter based on a racial

stereotype, but turned the letter’s original hedging language into a concrete conclusion that New

Jersey has never had state recognized tribes.

Damage to the Tribe as a consequence of Defendant’s actions and inaction has been, and

continues to be, severe. Compl. ¶¶ 50-55. The Tribe has already lost, and is imminently and

continuously threatened with the loss of, grant funding for critical health and employment

initiatives for women, children, and seniors, student scholarships, jobs, the ability to do business

through its certified tribal company, the authorization to sell crafts as Indian-made under federal

law, and its status, standing, and reputation in various domestic and international American

Indian organizations. Compl. ¶ 50. The Tribe asks that the Court prevent Defendant from

unilaterally terminating its status, and require him to honor New Jersey’s long-standing position

that the Tribe is a state-recognized American Indian tribe. Compl. ¶ 72.

III. STANDARD OF REVIEW

A motion to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction

requires that the court accept as true the plaintiff’s well-pleaded factual allegations. Ashcroft v.


Iqbal, 556 U.S. 662, 678 (2009). “When ruling on such a motion, a distinction must be made

between a facial and factual attack.” Cuevas v. Wells Fargo Bank, N.A., 2015 U.S. Dist. LEXIS

116472, at *6 (D.N.J. Sept. 1, 2015). Because Defendant makes a facial attack (Pb 10), the Court

“looks only at the allegations in the pleadings and does so in the light most favorable to the

plaintiff.” U.S. ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007)

(citations omitted). “A Defendant who attacks a complaint on its face ‘[asserts] that considering

the allegations of the complaint as true, and drawing all reasonable inferences in favor of

[plaintiff], the allegations of the complaint are insufficient to establish a federal cause of

action.’” Mullen v. Thompson, 155 F. Supp. 2d 448, 451 (W.D. Pa. 2001) (Lancaster, J.).

Defendant also moves to dismiss under Rule 12(b)(6). A district court reviewing a dismissal

motion under Rule 12(b)(6) must “accept all factual allegations as true, construe the complaint in

the light most favorable to the plaintiff, and determine whether, under any reasonable reading of

the complaint, the plaintiff may be entitled to relief.” Pinker v. Roche Holdings Ltd. 292 F.3d

361, 374 (3d Cir. 2002). “[A] motion to dismiss may be granted only if, accepting all well-

pleaded allegations in the complaint as true and viewing them in the light most favorable to the

plaintiff, a court finds that plaintiff's claims lack facial plausibility.” Warren Gen. Hosp. v.

Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011); Iqbal, 556 U.S. at 678, citing Bell Atlantic v.

Twombly, 550 U.S. 544, 570 (2007).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the Defendant is liable for the misconduct alleged.” Iqbal,

556 U.S. at 678 (citation omitted). This does not impose a probability requirement at the

pleading stage, but instead “simply calls for enough facts to raise a reasonable expectation that

discovery will reveal evidence of the necessary element.” Phillips v. Cnty. of Allegheny, 515


F.3d 224, 234 (3d Cir. 2008) (internal citations omitted); see also Meyer v. Snyders Lance, Inc.,

2012 U.S. Dist. LEXIS 175537 (M.D. Ga. Dec. 12, 2012) (recognizing “the distinction between

determining whether a claim for relief is ‘plausibly stated,’ the inquiry required by

Twombly/Iqbal, and divining whether actual proof of that claim is ‘improbable,’ a feat

impossible for a mere mortal, even a federal judge.”).

Thus, at the pleading stage, a plaintiff need only allege “[f]actual allegations … enough to

raise a right to relief above the speculative level… on the assumption that all the allegations in

the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555 (citations omitted).

Here, as established below, the Tribe’s allegations raise plausible Constitutional claims and meet

the pleading standards of Fed. R. Civ. P. 8.

IV. LEGAL ARGUMENT

A. BECAUSE THE TRIBE’S COMPLAINT FITS SQUARELY WITHIN YOUNG, THE 11TH AMENDMENT DOES NOT PROVIDE GROUNDS FOR DISMISSAL

Defendant argues that the 11th Amendment bars this suit notwithstanding Ex parte Young,

209 U.S. 123 (1908), which affords federal court jurisdiction over “certain suits seeking

declaratory and injunctive relief against state officers in their individual capacities.” Idaho v.

Coeur d’Alene Tribe, 521 U.S. 261, 269 (1997). He says Young does not apply because the state,

not the attorney general, is the “real party in interest” (Pb 1) and because the suit seeks

retroactive rather than prospective relief. Both contentions mischaracterize the Tribe’s complaint,

and the Court should reject them.

1. The Young Exception.

The 11th Amendment generally provides states immunity from lawsuits in federal court.

The Young exception to that immunity allows suits against state officials for injunctive and


declaratory relief to end ongoing violations of federal law. Virginia Office for Prot. and

Advocacy v. Stewart, 563 U.S. 247, 255 (2011) (citation omitted) (Young “permit[s] federal

courts to vindicate federal rights”); Hafer v. Melo, 502 U.S. 21, 30-31 (1991); MCI Telecomm.

Corp. v. Bell Atlantic-Pa., 271 F.3d 491, 506 (3d Cir. 2001).

The 11th Amendment permits a suit to enjoin a state official’s constitutional violations, even

if, as a practical matter, the injunction restrains state action. Home Tel. & Tel. Co. v. City of L.A.,

227 U.S. 278, 287 (1913); Schall v. Joyce, 885 F.2d 101, 112 (3d Cir. 1989). Thus, the 11th

Amendment does not preclude the Tribe from suing state officers for prospective injunctive

relief when those officers’ actions are alleged to violate the Constitution or federal laws. Verizon

Md., Inc. v. Pub. Serv. Comm’n, 535 U.S. 635, 645 (2002); Young, 209 U.S. at 152 (federal

courts “will restrain a state officer from executing an unconstitutional statute of the State, when

to execute it would violate rights and privileges of the complainant which had been guaranteed

by the Constitution, and would work irreparable damage and injury to him...”).

As the Court explained in Young:

If the act which the state Attorney General seeks to enforce be a violation of the Federal Constitution, the officer in proceeding under such enactment comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States.

209 U.S. at 159-60. Similarly, in Coeur d’Alene, the Court made clear that “[t]he Young doctrine

rests on the premise that a suit against a state official to enjoin an ongoing violation of federal

law is not a suit against the State.” 521 U.S. at 296 (emphasis added). Accordingly, to establish

the Young exception to 11th Amendment, a court “need only conduct ‘a straightforward inquiry

into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly


characterized as prospective.’” Verizon Maryland, 535 U.S. at 645, citing Coeur d’Alene, 521

U.S. at 296.4 The Tribe’s claims satisfy both parts of this “straightforward inquiry.”

i. Allegations of ongoing violations of federal law.

The Tribe alleges violations of its federal constitutional rights to procedural and

substantive due process, and to equal protection (Compl. ¶¶ 57-71), and explicitly alleges that

those violations are ongoing (Compl. ¶¶ 7, 42, 50).5 The Tribe alleges that it was recognized by

the state through a concurrent resolution and statutes (processes accepted by New Jersey and

federal agencies as valid for that purpose), and that the Tribe justifiably relied on the benefits of

such recognition for decades. Compl. ¶¶ 22-24, 28-31. The Tribe further alleges that as recently

as 2015, New Jersey told federal agencies that it has three state-recognized tribes. Compl. ¶ 42.

Nevertheless, without affording the Tribe due process, Defendant continues to inform other

federal agencies that New Jersey has neither now nor ever had American Indian tribes. Compl. ¶¶

43-44. Plaintiff thus alleges the kinds of ongoing violations of federal law – constitutional rights

provided by the Fourteenth Amendment – for which Young provides a clear exception to 11th

Amendment immunity.

ii. Prospective Relief.

Contrary to Defendant’s contention (Pb 2), the Tribe seeks prospective, not retrospective,

relief. “Prospective relief … includes injunctive relief that bars a state actor from engaging in

certain unconstitutional acts or abates ongoing constitutional violations.” N.J. Educ. Ass’n v.

New Jersey, 2012 U.S. Dist. LEXIS 28683, at *12 (D.N.J. Mar. 5, 2012) (emphasis added).6

4 As one constitutional scholar noted, “the area where Eleventh Amendment immunity actually bars all relief (functionally) against states is vanishingly small.” John Jeffries, In Praise of the Eleventh Amendment and Section 1983, 84 Va. L. Rev. 47, 81 (1998). 5 At oral argument, the Court invited the Tribe to amend its Complaint to further detail its allegations regarding the State’s continuing representations that it has three recognized tribes. Tr. 41:3-9. Defendant offers no response to these new allegations. 6 While Defendant relies heavily on this case, it is a non-binding district court decision.


Here, the Tribe seeks to stop Defendant from denying or impairing the Tribe’s status in the

future (Compl. Relief ¶¶ b, g), and to stop violating the Tribe’s Constitutional rights (Compl.

Relief ¶¶ c, d, e). In other words, Plaintiff seeks to end ongoing violations of federal law.

Defendant’s argument that Plaintiff seeks retroactive relief must be rejected. “Remedies

designed to end a continuing violation of federal law” vindicate the supremacy of federal law

and thereby serve Young’s purpose. Green v. Mansour, 464 U.S. 64, 68 (1985) (emphasis

added).7 In Edelman v. Jordan, 415 U.S. 651 (1974), relied upon by Defendant to make its

retroactive relief argument (Pb 15, 19), the relief required “the payment of state funds, not as a

necessary consequence of compliance in the future with a substantive federal-question

determination, but as a form of compensation.” Consequently, it did not qualify for the Young

exception. 415 U.S. 651, 668 (1974). The Tribe’s request for relief is readily distinguishable

from that denied by Edelman. The Tribe seeks prospective relief that would restrain the Attorney

General from denying or impairing the Tribe’s status as an American Indian tribe (Compl. ¶ 25,

Relief ¶¶ b, g). The effect would be to abate ongoing constitutional violations and prevent

threatened future violations.

Defendant attempts to draw a strained analogy to New Jersey Education Association, arguing

that the Tribe seeks retroactive relief because it seeks to compel New Jersey’s specific

performance of an obligation to reinstate the status quo ante and restore the Tribe’s status (Pb

15-21). But the analogy fails.

In N.J. Education Association, plaintiffs claimed that they had entered a binding contract

with the state, which the legislature later modified. The plaintiffs sought to enjoin enforcement of

7 “No fewer than ten times, the [Green] Court described the type of relief permitted by Ex parte Young as relief seeking to halt an ‘ongoing or ‘continuing’ or ‘current’ or ‘present’ violation of federal law.” Carlos Manuel Vázquez, Night and Day: Coeur d’Alene, Breard, and the unraveling of the Prospective-Retrospective Distinction in the Eleventh Amendment Doctrine, 87 Geo. L.J. 1, 34 (1998).


the modification and to force the state to comply with the contract. In determining whether the

11th Amendment prohibited that claim, the court ruled that because “the relief requested by

Plaintiffs is, in both substance and practical effect, a request for specific performance of [a

contract],” the effect of the relief would be retroactive. 2012 U.S. Dist. LEXIS, at *17. The court

concluded that the relief thus fell into the same category as Edelman, and dismissed the claim.

By relying on this case, Defendant ignores the crucial distinction that the plaintiffs in N.J.

Education Association were seeking specific performance of a contract. A long line of cases,

going back to In re Ayers, 123 U.S. 443 (1887), holds that the 11th Amendment bars claims

seeking specific performance of a contract. Here the Tribe alleges ongoing violations that

comport with the Supreme Court’s and this Court’s definitions of prospective relief, which

include “injunctive relief that bars a state actor from engaging in certain unconstitutional acts or

abates ongoing constitutional violations.” N.J. Educ. Ass’n, 2012 U.S. Dist. LEXIS 28683, at

*12. The Tribe does not request specific performance of a contract; it alleges ongoing action by

the Acting Attorney General to deny and impair the Tribe’s status (Compl. ¶¶ 38-41), and

requests relief to prohibit Defendant from continuing to violate its federal constitutional rights.

2. The State Is Not The Real Party In Interest.

Defendant does not deny that the Tribe’s complaint satisfies the “straightforward inquiry”

that determines Young’s applicability. Instead, he argues that the real defendant is the state – that

the “effect of the relief” the Tribe seeks impinges inappropriately on the interests the 11th

Amendment serves. Pb 16-18. The argument misapprehends the Tribe’s claims.

This is not a case in which the relief the Tribe seeks threatens state sovereignty or imperils

the “special sovereignty interests” protected by the 11th Amendment. Coeur d’Alene, 521 U.S. at

281. The Tribe does not seek compensation from the state treasury for past injury. Edelman, 415


U.S. at 666. It does not seek to quiet title to real property that otherwise belongs to the state.

Coeur d’Alene, 521 U.S. at 281. It does not ask this Court to specifically enforce a prior state

contractual obligation. N.J. Educ. Ass’n, 2012 U.S. Dist. LEXIS 28683, at *17. Indeed, the Tribe

does not ask this Court to compel the state to recognize the Tribe in the first instance. Instead, the

Tribe says Defendant – unilaterally, arbitrarily, without due process, and for invidious reasons –

has taken a position that annuls the Tribe’s federal constitutional rights on a continuing basis. It

asks this Court to make him stop.

That this relief, if granted, may affect “state policies and procedures” is an inevitable

consequence of any lawsuit challenging unconstitutional action by a state officer. See Coeur

d’Alene, 521 U.S. at 269. But that does not convert this suit into one against the state; it simply

underscores “the premise – less delicately called a fiction” – that underlies Young. Virginia

Office, 563 U.S. at 255.8

The court in New Jersey Education Association defines the difference between cases in

which the state is the real party and those in which the state official is the appropriate party,

explaining that “[t]he first class is where the suit is brought against the officers of the State, as

representing the State’s action and liability, thus making it….the real party against which the

judgment will so operate as to compel it to specifically perform its contracts.” New Jersey Educ.

Ass’n, 2012 WL 715284, at *8, citing Pennoyer v. McConnaughy, 140 U.S. 1, 10 (1891). The

second type is brought against defendants, “claiming to act as officers of the State …[, who]

commit acts of wrong and injury to the rights and property of the plaintiff…. Young applies with

full force in this [second] situation.” New Jersey Educ. Ass’n, 2012 U.S. Dist. LEXIS 28683, at

8 In fact, for this very reason, courts “almost never … refuse to accept a properly pleaded complaint by coercively recharacterizing [it] as being “really” against the state and therefore barred by the Eleventh Amendment.” Jeffries, 84 Va. L. Rev. at 65.


*29-30. Here, Plaintiff seeks to end a state officer’s unconstitutional invasion of federal

constitutional rights.9

At oral argument, the Court analogized the Tribe’s claims to a situation where Young

squarely applies – unilateral action by an attorney general disavowing, on a prospective basis,

state statutory recognition of the Tribe. Tr. 6:22-17:5. Defendant was unable persuasively to

distinguish this case at the argument; his efforts to do so in his renewed motion are equally

unavailing. See Pb 21-24. The only difference between the Court’s hypothetical and the Tribe’s

case is the manner in which the state created the protected interest Defendant unconstitutionally

invades. That difference has nothing to do with whether the 11th Amendment bars this lawsuit.

In sum, the Tribe’s complaint presents a paradigmatic example of a case in which Young

applies: an allegation that a state officer has acted, and continues to act, in a manner that deprives

the Tribe of its federal constitutional rights, and a request that the Court enjoin that action.

Defendant’s convoluted efforts to analogize those straightforward allegations to a suit seeking

specific performance of a contract with the state manifestly lack merit.

B. BILLS PROPOSED IN THE STATE LEGISLATURE AFTER THE 2002 COMMISSION LAW AMENDMENTS ARE IRRELEVANT.

Throughout his motion, Defendant relies on proposals in the state legislature made after

2002, which would have utilized the new statutory procedure to further affirm recognition of the

Tribe. Defendant says these bills would not have been introduced unless the Tribe lacked prior

recognition (Pb 26-27), and that they show the Tribe’s case presents a nonjusticiable political

question (Pb 2). Neither argument has merit.

9 Defendant’s attempt to narrow Young rests largely on Chief Justice Roberts’ dissenting opinion in Virginia Office. That dissent has no precedential value, and in any event, refers to circumstances not relevant here, such as claims that seek retroactive relief, that are based on state law, that implicate a detailed state remedial scheme, or that implicate “special sovereignty interests.” 563 U.S. at 266, 268.


The Tribe alleges that after 2002, legislative proposals to acknowledge existing recognition

of the tribes occurred not because the tribes’ status was legally questionable, but because

political attacks by “members of the state bureaucracy had begun to undermine the tribes’ status

out of confusion and prejudice.” Compl. ¶ 30n. The Tribe further says these proposals responded

to a report by the Governor-created Committee of Native American Community Affairs about

the Tribe’s continuing troubles and its advice that the state take additional steps to alleviate

them. Compl. ¶ 30l, m, n. Defendant ignores the Tribe’s allegations (which must be taken as true

on this motion) that the post-2002 legislative proposals were a response to attempts to undermine

the Tribe’s status. Compl. ¶ 37. The Court cannot consider Defendant’s contrary speculation

about the purpose of these proposals.

The same flaw infects Defendant’s contention that failed efforts to pass separate recognition

legislation show the Tribe’s case to be a nonjusticiable political question (Pb 1-2). As detailed in

Plaintiff’s initial opposition, many U.S. courts have decided issues of tribal status and state

recognition, even where a political process was underway. Tribe’s Opposition to Defendant’s

First Motion to Dismiss, dated Nov. 23, 2015, at 13-14.

Finally, as Defendant admits (Pb 27), the failed legislative proposals all post-date the 1982

concurrent resolution, the 1992 birth certificate statute, the 1995 Commission statute, and the

2002 amendments to the Commission statute. Accordingly, they are irrelevant. The Tribe makes

no reference to them in its original, First, or Second Amended Complaints, other than to allege

that the state Committee advised steps be taken to protect the tribes’ status against irrational

political pressures. Compl. ¶ 30n. Defendant likewise did not reference the legislative proposals


in his first Motion to Dismiss, adding them to his second Motion in reliance on the state court’s

ill-conceived and unsupported speculation as to the legislature’s intent. Pb 6-7.10

C. THE TRIBE’S FEDERAL CLAIMS ARE JUSTICIABLE AND WITHIN THE COURT’S AUTHORITY TO ADJUDICATE ADJUDICATE

1. Tribal Recognition Is Not A Political Question.

Defendant argues that the Tribe’s claims are nonjusticiable because New Jersey requires a

“statutory enactment by the Legislature” to recognize tribes. Pb 26, citing N.J.S.A. 52:16A-

56(g). As this Court noted at oral argument (Tr. 51:15-19), New Jersey did recognize the Tribe

via statute – twice. Both the Commission law (N.J.S.A. 52:16A-53) and the birth certificate law

(N.J.S.A. 26:8-49) specifically name the Tribe as having access to the privileges granted by the

laws, use the terms “tribe” and “chief,” and distinguish the Tribe from other tribes and groups

not recognized by the state. Accordingly, these statutes recognize the Tribe ipso facto.

In any event, the requirement that tribes obtain state recognition solely through a statute was

not adopted until 2002 – twenty years after New Jersey recognized the Tribe – by amendments to

the law governing New Jersey’s Commission on American Indian Affairs. Compl. ¶ 36. The

legislature’s 2002 decision to change the procedure for tribal recognition does not retroactively

render the issue a political question.

Many U.S. courts have decided issues of tribal status and state recognition, even where a

political process was underway. In Amalgamated Ind. v. Historic E. Pequot, the court maintained

jurisdiction over an alleged breach of contract by the tribal defendants:

In the context of a civil case, the courts of this state have not held that recognition of a group as an Indian tribe by the state is a nonjusticiable political question….

10 Lower state court decisions do not control here. Houbigant, Inc. v. Federal Ins. Co., 374 F.3d 192, 199 (3d Cir. 2004) (federal circuit court is not required to follow lower state court ruling); Certain Underwriters at Lloyd’s of London v. Alesi, Civil No. 10-1796, 2012 WL 2979037, at *3 (D.N.J. July 20, 2012) (state court trial decision is not binding on federal district court).


In the absence of a final determination by the federal government, recognition of Indian tribes … is not a political question and may be determined by the court.

2005 Ct. Sup. 8152, at 8160-61, NO. X03 CV 03 4000287 (Conn. Super. Ct. 2005) (emphasis

added). That is, even though the BIA had issued a determination of the tribe’s federal status that

was pending appeal, the court nevertheless maintained jurisdiction over the recognition issue.

Defendant cites no case in which a court declined jurisdiction over state tribal recognition as

a nonjusticiable political question.11 In contrast, the Tribe cites multiple cases in which the court

maintained jurisdiction over a recognition-related dispute. Amalgamated Ind., 2005 Ct. Sup.

8152, supra; New York v. Shinnecock Indian Tribe, 400 F. Supp. 2d 486, 488-91 (E.D.N.Y.

2005) (concluding that Shinnecock Indians are state-recognized); Schaghticoke Tribal Nation v.

Harrison, 264 Conn. 829, 836-37 (2003) (rejecting argument that federal recognition procedures

“preclude the trial court from determining whether the plaintiff is in fact the tribe recognized by

the state”). See also Robinson v. Salazar, 838 F. Supp. 2d 1006, 1029 (E.D. Cal. 2012)

(evaluating complaint to determine whether it alleged sufficient facts to satisfy definition set

forth in United States v. Montoya de Hernandez, 473 U.S. 531 (1985)); Gristede’s Foods, Inc. v.

Unkechauge Tribe, 660 F. Supp. 2d 442, 469 (E.D.N.Y. 2009) (for purposes of sovereign

immunity, court had jurisdiction to determine whether tribe meets federal common law definition

of “tribe”); Narragansett Tribe of Indians v. S. R.I. Land Dev. Corp., 418 F. Supp. 798 (D.R.I.

1976) (court decided tribe’s federal status under Montoya).

2. None Of The Baker Factors Are Inextricable From The Tribe’s Claims.

Defendant argues that tribal recognition “is a political question best left to the legislature to

decide.” Pb 24, citing Baker v. Carr, 369 U.S. 186, 210 (1962). Defendant accurately

11 The only case Defendant cites, Shinnecock Indian Tribe v. Kempthorne, No. 06-5013, 2008 U.S. Dist. LEXIS 75826 (E.D.N.Y. Sept. 30, 2008) (Pb 26), concerns federal tribal recognition, an issue not relevant here.


summarizes the Baker factors, but misapplies them. As the Supreme Court has cautioned, courts

must be aware that “the ‘political question’ label” can “‘obscure the need for case by case

inquiry’” and “avoid ‘resolution by any semantic cataloguing’” Gross v. German Found. Indus.

Initiative, 456 F.3d 363, 377 (3d Cir. 2006), citing Baker, 369 U.S. at 217.

The Court in Baker expressly cites tribal recognition as an area of law where “there is no

blanket rule” requiring judicial abstention. 369 U.S. at 215. Indeed, Baker emphasizes that where

tribal status is concerned, a court “will not stand impotent before an obvious instance of a

manifestly unauthorized exercise of power.” Id. at 217 (emphasis added). Defendant’s actions in

this case fit that description exactly.

Even if a political question were arguably related to the Tribe’s claims, “[u]nless one [of the

political question criteria] is inextricable from the case at bar, there should be no dismissal for

nonjusticiability on the ground of a political question’s presence.” Baker, 369 U.S. at 217

(emphasis added). “[S]imply because the case has a connection to the political sphere [is not] an

independent basis for characterizing an issue as a political question …” Amalgamated Ind., 2005

Ct. Sup. 8152, citing Baker, 369 U.S. at 217. Here, none of the Baker factors is inextricable from

the Tribe’s causes of action, thus Baker does not bar the Court from deciding the matter.

Repeating his initial Motion, Defendant argues that four Baker factors bar the Court from

adjudicating the Tribe’s claims.

• He first argues that the “lack of judicially discoverable and manageable standards for

resolving the issue” takes the Tribe’s claims outside the Court’s authority because “Plaintiff

cannot cite to any statutory or regulatory standards allowing for recognition of American

Indian tribes by New Jersey … they simply do not exist.” Pb 27. But states have been

recognizing tribes for many decades, and the federal government has respected those


procedures. Compl. ¶ 32-34. See 1-3 Cohen’s Handbook of Federal Indian Law § 3.02[9]

(Nell Jessup Newton ed., 2012) (“State recognition can take a variety of forms, and federal

laws extending to state-recognized tribes defer to the states’ characterizations.”). Indeed, the

practice of states recognizing tribes predates the federal recognition process by decades.

Alexa Koenig & Jonathan Stein, Federalism and the State Recognition of Native American

Tribes: A Survey of State-Recognized Tribes and State Recognition Processes Across the

United States, 48 Santa Clara L. Rev. 79, 87 (2008) (“State recognition has a long history,

enjoying several centuries of precedent and evolution.”).

Additionally, the Tribe asks the Court to confirm its state recognition status and find that

Defendant wrongfully attempts to deny that status, thus violating the Tribe’s due process and

equal protection rights, not to determine or grant state recognition status. See, e.g., Compl.

Relief ¶ a. New Jersey previously recognized the Tribe as an American Indian tribe (Compl.

Relief ¶¶ b, g); the Tribe simply asks the Court to order the Acting Attorney General to honor

that decision, absent action to rescind such recognition with due process.

• Defendant then contends that the Tribe asks the Court to determine an issue that calls for

an initial policy determination reserved for nonjudicial discretion. Pb 27-28. This third Baker

factor, most often raised in disputes related to foreign relations (see, e.g., Massachusetts v.

Laird, 400 U.S. 886, 893 (1970) (adjudication of constitutionality of U.S. participation in

Indochina war)), likewise does not render the Tribe’s claims nonjusticiable. The Tribe raises

no questions of legislative judgment or policy wisdom; it asks only that Defendant stop

violating its Constitutional rights.

Defendant goes a step further than his original Motion, contending that because “the

Legislature in fact has on several occasions considered but never passed a statute officially


recognizing Plaintiff,” the Tribe’s claim requires a decision regarding policy. Pb 27. Yet

again, Defendant disregards the Tribe’s well-pled allegations, which provide an entirely

different explanation for the failed proposals. The Tribe alleges that the state’s Committee of

Native American Community Affairs, while concluding that tribal recognition was legally

sufficient, nevertheless recommended that additional steps be taken to confirm state

recognition due to political pressures (Compl. ¶ 30n). These allegations must be accepted as

true on a motion to dismiss.

• Defendant also argues that should the Court resolve the case, it will express a lack of

respect for the coordinate branches of government. Pb 28. As the Tribe explained in its prior

Opposition, “disrespect … cannot be sufficient to create a political question. If it were, every

judicial resolution of a constitutional challenge to a congressional enactment would be

impermissible.” United States v. Munoz-Flores, 495 U.S. 385, 390 (1990).12

• Lastly, Defendant cites the sixth Baker factor: that there is potential for embarrassment

from differing decisions by various departments. Pb 28. The Tribe’s status was established

decades ago by concurrent resolution, statutes, official declarations, and decades of the

state’s other activities and communications. Compl. ¶ 30. Defendant’s argument here is

circular: a court decision in Plaintiff’s favor would be embarrassing only if the state is correct

that the question is nonjusticiable.

The Supreme Court requires courts to undertake a “discriminating inquiry into the precise

facts and posture of the particular case.” Gross, 456 F.3d at 377-78, citing Baker, 369 U.S. at

217. Under that standard, the Tribe’s claims are nonpolitical questions justiciable by this Court.

12 Defendant cites the failed legislative proposals to support this argument, asking the Court to make factual findings about why the proposals were introduced and what it means that they did not pass, in direct contradiction to the Tribe’s allegations. As noted in Section II, the bills have no relevance to the Tribe’s claims, and on dismissal, the Court cannot find facts that contradict those well-pleaded claims.


3. The Tribe Asks The Court To Enforce State Recognition, Not Determine It.

Defendant asserts that “whether a tribe should be recognized as an official tribe by the State” is

a nonjusticiable political question reserved to the legislature. Pb 26. By so claiming, Defendant

illustrates his fundamental misunderstanding of the Tribe’s claim, which the Court accurately

summarized at oral argument as follows:

… [S]ubsequent passage of the statute, the birth record statute, when the Commission was established, that those statutes ipso facto recognized it as a tribe and there was statutory recognition ipso facto of the tribe. …. [For] the state to now come in and say they are not a tribe, they shouldn’t get federal benefits, … deprives them of due process.

Tr. at 51:15-24. See also Compl. ¶¶ 1, 30. The Tribe is not asking the Court to grant state-

recognition to the Tribe, to decide its eligibility for state recognition, or to rule upon whether it

“should be recognized as an official tribe by the State.” Pb 26. The Tribe asks that the Court

order the Acting Attorney General to stop violating its rights to due process and equal protection.

Compl. Relief ¶¶ b-g. That is, the Tribe asks the Court to deny the Motion to Dismiss, then to

interpret the concurrent resolution, the relevant state statutes, official declarations, and the state’s

and Attorney General’s actions, beginning with the 1982 resolution and continuing routinely for

three decades afterwards (Compl. ¶¶ 28, 30), and to apply constitutional law to those allegations.

This is well within the Court’s authority.

D. THE TRIBE PROPERLY SETS FORTH ITS DUE PROCESS AND EQUAL PROTECTION CLAIMS.

1. Procedural Due Process.

To support a claim for a violation of procedural due process rights, “a plaintiff … must

demonstrate that: ‘(1) he was deprived [by state action] of an individual interest that is

encompassed within the Fourteenth Amendment's protection of life, liberty, or property, and (2)

the procedures available to him did not provide due process of law.’” Biliski v. Red Clay Consol.


Sch. Dist. Bd. of Educ., 574 F.3d 214, 219 (3d Cir. 2009) (citation omitted). The Supreme Court

instructs:

Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law -- rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972) (emphasis added). “[T]he

question of whether somebody has a property interest is whether there is a reasonable

expectation to continued receipt of a benefit.” Erwin Chemerinsky, Procedural Due Process

Claims, 16 Touro L. Rev. 871, 881 (2000), citing Roth, 408 U.S. at 577 (“It is a purpose of the

ancient institution of property to protect those claims upon which people rely in their daily lives,

reliance that must not be arbitrarily undermined”).

Defendant argues – tautologically – that the Tribe has not alleged a protected liberty or

property interest because it is not entitled to any process with respect to the loss of its status. Pb

35-36. Additionally, the Defendant argues that even if a protected interest were present, the Tribe

fails to allege what process might be due. Pb 37. Both arguments are without merit.

i. The Tribe Alleges That Defendant Is Violating Its Liberty And Property Interests.

Defendant argues that the concurrent resolution lacks the force and effect of law, and

therefore cannot act as an “independent source” to confer any due process rights on the Tribe. Pb

36.13 Defendant thus disregards the Tribe’s allegations regarding New Jersey’s long-accepted

approach to recognizing tribes through state resolutions prior to the 2002 amendment. Compl. ¶¶

24, 36. The Tribe alleges that prior to 2002, the state legislature accomplished recognition of

tribes through state resolutions (Compl. ¶ 24), and that this was, and remains, one of several

methods commonly used by states to recognize tribes. Compl. ¶¶ 24, 30c, 34. 13 Defendant again relies on the state court opinion, which is non-binding, on appeal, and wrongly decided.


Defendant’s argument is additionally flawed because it focuses on the concurrent resolution

and the state court opinion, and ignores the Tribe’s allegations regarding the two statutes, official

declarations, and long record of state recognition through New Jersey’s regular communications

with tribes and federal agencies. Compl. ¶ 35. In the Second Amended Complaint, the Tribe

relies upon the two statutes, official declarations by state agencies, the concurrent resolution and

more than thirty succeeding years of conforming and substantiating state conduct that created,

maintained, and reinforced the Tribe’s protected property and liberty interests in its identity as a

Native American Tribe (Compl. ¶¶ 28, 30, 35, 57).14 This history constitutes the “rules or

understandings that secure certain benefits and that support claims of entitlement to those

benefits.” Roth, 408 U.S. at 577.

The Tribe is thereby entitled to the privileges and benefits that accompany this status as a

state-recognized Native American tribe (Compl. ¶ 57); these interests rise to the level of state-

protected interests or entitlements worthy of procedural due process protection. The Tribe has

enjoyed these rights for many years, after maltreatment for centuries, only to have Defendant

cause their withdrawal without notice, opportunity to be heard, or any procedure. Compl. ¶ 58.

The Tribe sufficiently alleges property rights, protected under state law, which Defendant has

violated. Compl. ¶¶ 56-60.

ii. What Process is Due. Defendant similarly contends that the Tribe “necessarily fails to allege what process might be

due.” Pb 37. Defendant declares that because New Jersey does not have established procedures

for recognizing tribes – a contention the Tribe disputes, as referenced above (Compl. ¶ 24) – the

14 As this Court observed at oral argument, “subsequent passage of the statute, the birth record statute, when the Commission was established, that those statutes ipso facto recognized it as a tribe and there was statutory recognition ipso facto of the tribe.” Tr. 51:15-20.


Tribe is necessarily unable to allege what process is due and is therefore not entitled to any

process with respect to the loss of its 30-year status (Pb 2, 37).

Defendant’s statement of the law is incorrect: the Tribe need not allege what process is due –

that is, the law does not require the claimant to tell the Court what the proper procedures should

have been – but only that “the procedures available to him” (to the Tribe, none) “did not provide

due process of law.” Biliski, 574 F.3d at 219 (citation omitted). This the Tribe clearly does.

Compl. ¶¶ 38, 43, 58-59.

Deprivation of the Tribe’s protected interests in maintaining its identity and state status, and

the benefits that flow therefrom, requires some form of pre-termination process at least

equivalent to the process that created the interests. The Tribe has the right to a parallel legislative

action reversing the statutory authorities granted to the Tribe, terminating the concurrent

resolution, or participating in a hearing before a neutral decision-maker, with notice and an

opportunity to contest the proposed rescission. Mathews v. Eldridge, 424 U.S. 319, 333 (1976)

(citations omitted) (“The right to be heard before being condemned to suffer grievous loss of any

kind, even though it may not involve the stigma and hardships of a criminal conviction, is a

principle basic to our society.”).

Moreover, the Tribe alleges that before adopting the statute requirement, the New Jersey

legislature required and received evidence of the Tribe’s genealogy and self-governance, a

process that the State has described to the federal government. Compl. ¶¶ 25, 28, 44b. In

purporting to withdraw the state’s recognition, Defendant followed neither the evidentiary

procedure nor the concurrent resolution procedure. Compl. ¶¶ 24, 28, 44b. At minimum, the

same process that recognized the Tribe in 1982 should be followed to withdraw that status.


Finally, Defendant again cites and relies on procedures not adopted until 2002 to argue that

the Tribe fails to make a procedural due process claim. Pb 8-9. While the State now has a formal

requirement that additional tribes be recognized via statute, that requirement has no retroactive

effect on the recognition given to the Tribe through actions prior to 2002. Compl. ¶ 36.

2. Substantive Due Due Process.

“[T]o state a claim for a violation of substantive due process, a plaintiff must allege: (1)

that he was deprived of a fundamental right, and (2) that the government conduct at issue was ‘so

egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.’” Hall

v. Easton Area Sch. Dist., 2012 U.S. Dist. LEXIS 20695, at *20-21 (E.D. Pa. Feb. 17, 2012),

citing Kaucher v. Cnty. of Bucks, 455 F.3d 418, 425 (3d Cir. 2006). Defendant claims that the

Tribe “woefully fails to provide a careful description of the fundamental liberty or property

interest at stake,” and fails to tie infringement of this fundamental right to state action that is

more than “incorrect or ill-advised.” Pb 33, 34. To the contrary, the Tribe clearly pleads that it

has fundamental interests, and that in light of the state’s record of abuse of American Indian

peoples, the Attorney General’s actions, motivated by unfounded and pernicious racial

stereotypes, are arbitrary and shock the conscience. Compl. ¶¶ 31, 45, 52-54, 61-64.

i. The Tribe Alleges That It Was Deprived Of Fundamental Rights.

The Tribe alleges that it has a fundamental right, based on the Constitution, to exist as a

distinct racial or ethnic group, free from discrimination and oppression. Compl. ¶¶ 62-63. See

Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (citations omitted) (“the Due Process

Clause specially protects those fundamental rights and liberties which are, objectively, ‘deeply

rooted in this Tribe's history and tradition’”). The Court has also recognized that constitutional

protection of group relationships is necessary. Roberts v. U.S. Jaycees, 468 U.S. 609, 619 (1984)


(holding that chapters of a male organization lacked distinctive characteristics that would allow

constitutional protection for excluding women). “Protecting [group] relationships from

unwarranted state interference” ultimately “safeguards the ability independently to define one’s

identity that is central to any concept of liberty.” Id. (emphasis added). Furthermore, “the

realization that individuals draw much of their emotional enrichment from close ties with

others,” and thus in such group identity, is reflected in the “constitutional shelter afforded such

relationships.” Id. For hundreds of years, New Jersey ignored these rights with respect to state

tribes. Only in the last few decades has it made any effort to ameliorate its long history of

discrimination against American Indians.

The Tribe’s Complaint asserts this right in detail and in historical context. It sets forth the

long and ugly history of racism and oppression faced by American Indian tribes (Compl. ¶¶ 11-

16), as well as the efforts by the federal government and many state governments to try to rectify

the detrimental effects of that history in some small part, and to provide benefits and privileges

exclusively to tribes. Compl. ¶¶ 19, 21, 50.

Moreover, the Tribe plainly alleges that after centuries of state oppression and as a result of

over thirty years of treatment as a state-recognized tribe, it recovered and secured some portion

of its fundamental property and liberty rights in that identity, and concomitant benefits and

privileges. Compl. ¶¶ 31, 62-63. The concurrent resolution and subsequent statutes recognizing

and affirming the Tribe’s status secured those benefits to the Tribe for three decades. Compl. ¶¶

28-31. The Tribe had a reasonable expectation that the benefits would continue, based on this

history and the absence of legislative action rescinding the Tribe’s status. Compl. ¶ 31.

Defendant asserts that New Jersey “does not have any procedures, standards or requirements

for the ‘recognition’ or continued recognition of American Indian tribes,” other than the 2002


amendment to the Commission law, thus the Tribe cannot contend it has a fundamental right to

be free from the denial of existing state recognition. Pb 33-34. Defendant again ignores the

Tribe’s claims that New Jersey had a process of tribal recognition prior to the 2002 amendment

to the Commission law (Compl. ¶¶ 24, 36, 44b), which demonstrates how New Jersey recognized

the Tribe’s right to its identity and status. Compl. ¶ 62. The Tribe has thus set forth a cognizable

claim that Defendant has impaired a key aspect of its fundamental right to existence.

ii. The Tribe Alleges That Defendant’s Conduct Shocks the Conscience.

Defendant asserts that the Tribe “has not plausibly alleged government conduct that ‘shocks

the conscience,’” but rather, a mere “opinion on the legal status of a purported American Indian

tribe” that could only fall into “the realm of possible ‘incorrect or ill-advised’ government

action.” Pb 34. Again, Defendant disregards the Tribe’s well-founded allegations, which this

Court is obliged to accept as true.

The Tribe alleges that Defendant acted unilaterally, without any real authority, in derogation

of the legislature’s prerogative and from an invidious motive. Compl. ¶¶ 49, 64. The Tribe

alleges that Defendant’s position is influenced by a race-based stereotype that all American

Indians want to open casinos, and that acknowledging the tribes’ state prior recognition could

somehow lead to gaming competition. Compl. ¶¶ 45, 48-49, 64. Also, by resurrecting a long-ago

debunked letter from the Gaming Division to respond to the Arts & Crafts Board inquiry, despite

the Division’s lack of expertise and lack of authority on Indian affairs, Defendant demonstrated

an arbitrary disregard for the responsibilities of New Jersey’s Commission on Indian Affairs and

for the legislative process. Compl. ¶¶ 49, 64-65.

When a state official has time to deliberate but nevertheless consciously disregards the fact

that his conduct poses a substantial risk of serious harm, his actions violate the substantive due


process clause. See Vargas v. City of Phila., 783 F.3d 962, 973-74 (3d Cir. 2015) (deliberate

indifference to a risk of serious harm shocks the conscience). Defendant asked the Tribe to

provide “multiple detailed explanations of how state recognition does not provide a pathway to

federal gaming rights and assurances that the tribes had no interests in gaming,” then

nevertheless declined to take any action to stop the violations of the Tribe’s rights. Compl. ¶¶ 40-

41. Defendant’s actions – deliberate, unauthorized, unilateral, invidiously motivated, contrary to

legislative determination (Compl. ¶¶ 44-45) – constitute “egregious official conduct” that

“shocks the conscience.” The Tribe has thus set forth a cognizable claim for substantive due

process violations.

3. Equal Protection.

“To bring a viable equal protection claim, a plaintiff must allege that a defendant treated him

or her differently than others similarly situated, and that such selective treatment was predicated

upon membership in a suspect class (e.g. race, gender) or designed to inhibit fundamental

rights.” Wargo v. Municipality of Monroeville, 646 F. Supp. 2d 777, 789 (W.D. Pa. 2009), citing

City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985).

The Tribe alleges – and Defendant appears to concede this point, as he does not argue

otherwise – that as an American Indian tribe, it is a suspect class. Compl. ¶ 68. Defendant instead

argues that the Tribe “has not alleged that the tribe was treated differently than members of a

similarly situated class.” Pb 38. That is, Defendant argues that because he treats all American

Indians with equal disrespect and disdain, he has not violated any tribes’ Equal Protection rights

under the Fourteenth Amendment.

Defendant misses a critical distinction applicable to American Indians, who “are not

necessarily similarly situated to either non-Indian state citizens or citizens of other states, and it


is unclear to whom courts are intended to compare them.” Shira Kieval, Note: Discerning

Discrimination in State Treatment of American Indians Going Beyond Reservation Boundaries,

109 Columbia L. Rev. 94, 95 (2009). In Pyke v. Cuomo, the Second Circuit illustrated and

applied this point, holding that “it is not necessary to allege the existence of a similarly situated

non-minority group when challenging a law or policy that contains an express, racial

classification.” The court explained:

A plaintiff alleging an equal protection claim … generally need not plead or show the disparate treatment of other similarly situated individuals … So long as they allege and establish that the defendants discriminatorily refused to provide police protection because the plaintiffs are Native American, plaintiffs need not allege or establish the disparate treatment of otherwise similarly situated non-Native American individuals.

It would be difficult, if not impossible, to find other individuals whose situation is similar to Native Americans living on a reservation and exercising a substantial measure of self-government independent of New York State. Plaintiffs would probably be incapable of showing similarly situated individuals who were treated differently.

258 F.3d 107, 108-09 (2d Cir. 2001), citing Brown v. Oneonta, 221 F.3d 329, 337 (2d Cir. 2000).

That is to say, the Tribe need not allege the existence of a similarly situated group – because

there is none – but only that a discriminatory motivation underlies the Defendant’s actions

towards the Tribe. That the Tribe has done. Compl. ¶¶ 45-46, 54, 67-68.

Defendant presses the argument further, stating that the Tribe “does not plausibly allege that

the State’s ‘recognition’ of American Indian tribes can be compared to the State’s treatment of

other racial groups.” Pb 39. Such a criticism is intellectually incoherent; only American Indians

must obtain government recognition to legitimize their existence. No other racial group in New

Jersey – or, for that matter, in the U.S. – bears this burden, or enjoys the benefits that flow from

recognition once obtained. See Kieval, supra; Brown, 221 F.3d at 337.


Finally, while Defendant again attempts to minimize the Tribe’s allegations as “unadorned”

(Pb 38), Plaintiff sufficiently alleges discriminatory conduct. The Tribe claims that Defendant’s

actions were invidiously and improperly motivated (Compl. ¶ 67) and unjustified by any state

interest. Compl. ¶ 69. The Tribe also alleges that Defendant is “motivated by a racial-stereotype-

driven and irrational fear that because an American Indian tribe seeks state recognition, it must

want to seek to conduct gaming.” Compl. ¶ 45. Because it is a suspect class, the Tribe alleges

that Defendant’s actions constitute racial discrimination. Compl. ¶ 68. Such allegations are

sufficient to defeat Defendant’s Motion to Dismiss the Tribe’s Equal Protection claim.

V. CONCLUSION

For the foregoing reasons, Defendant’s Motion to Dismiss should be denied in its

entirety.

Respectfully submitted:

s/Frank L. Corrado Frank L. Corrado Attorney ID No. 022221983 Barry Corrado & Grassi PC 2700 Pacific Avenue Wildwood NJ 082603 [email protected] Tel: 609.729.1333

Gregory A. Werkheiser L. Eden Burgess Cultural Heritage Partners PLLC 2101 L Street NW, Suite 800 Washington, DC 20037 [email protected] [email protected] Tel: 202.567.7594

Attorneys for Plaintiff Nanticoke Lenni-Lenape Tribal Nation June 6, 2016


united states district court for the district of new … · [email protected]...

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