Tribe seeks land N.J. sold in 1801

 

By Troy Graham
Inquirer Staff Writer

 

Two centuries later, a band of Native Americans want back the land they say the state of New Jersey sold out from under them in 1801.

In a federal lawsuit filed last month in Camden, they demanded that everyone now living on the former Brotherton Reservation be evicted.

The only problem: The 3,044-acre reservation now makes up about 85 percent of Shamong Township, Burlington County.

Since no one wants to bulldoze a community of 6,500 people, the tribe is offering a compromise. Instead, it will accept two 1,500-acre plots of state land - one in Bergen County and one in Burlington County.

On each site, the Unalachtigo Band of the Nanticoke-Lenni Lenape Nation proposes building casinos with 45,000 slot machines, then sharing the revenue with the state and other tribes.

"Some people tell us there's no way in the world we'll get it," said Brent Thomas, the tribal chairman. "I have to be cautiously optimistic; otherwise, I wouldn't be able to get up in the morning."

Thomas, who used to publish an art investors' guide, has devoted himself full-time to tribal government since 1998, when the Unalachtigo Band was reorganized with the express purpose of pursuing Indian gambling, now a $19 billion industry.

Relying on some of the nation's earliest laws, Thomas and his 108-member band, many of whom live in poverty in and around Bridgeton, Cumberland County, are chasing billions of dollars of development in an industry full of heavyweight players.

Despite the odds against the band, Thomas sees gambling as the best way to maintain the tribe, salvage the remnants of its culture, and provide for elders living in squalor.

"We can't sit idly by while people in our community are dying," he said. "We can help ourselves if they would just get out of our way."

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Thomas likes to take visitors to the windswept spot on the Delaware River where his ancestors crossed into New Jersey in 1634, fleeing war with the Susquehanna.

The council fire - the seat of tribal government for the Lenape people - was situated in nearby Fairton, where Thomas was raised. It's now a golf course.

But, like many Native Americans in the region, Thomas didn't grow up with a strong sense of his heritage. His older relatives recall a time when they were encouraged to hide their ethnicity, fearing the government would force them to move out West.

"The hardest thing in our community is to be open about your identity," he said.

Then, in the late 1990s, Thomas made a business trip to the museum at the Foxwoods casino, run by the Mashantucket Pequot Tribal Nation, in Connecticut.

"I go up there for a meeting with these guys, and they look like me," he said. "To see the living standards, the health care, the housing, of course we want it... . Not because we want it, but because we need it."

With the coming explosion of Pennsylvania slot machines in 2007, Thomas hopes New Jersey won't be able to take a pass on the allure of Indian gambling.

"For New Jersey to regain its prominence, it needs the next wave of gaming, which is what we offer," he said.

And when people ask how a small tribe, struggling to pay for basic necessities, is going to build a gambling empire, Thomas points across the river.

"The state of Pennsylvania isn't investing a dime, and look at the development they're getting," he said.

But not everyone agrees that gambling is the best way for tribes to flourish. A larger, 2,500-member tribe of Nanticoke Lenni-Lenape, who have established a cultural center and make appearances at local schools, adamantly opposes gambling. In fact, this tribe's laws ban any business that "profits from the promotion of vice."

"We are absolutely, 100 percent separate from the Unalachtigo Band," said the Rev. John Norwood, a Nanticoke Lenni-Lenape tribal member. "Our goal has never been gaming, nor is it to seize property and throw people off the land."

Mark Gould, the chief, said casinos have been a divisive force in many gaming tribes.

"We are a very spirituality-based tribe," he said. "We have been a very poor tribe all our lives, but if we're going to keep the families together, we have to follow the spiritual line."

He said Thomas' pursuit of gambling had injured "every Native American in New Jersey," and had made his tribe's efforts to win grants and work with local governments more difficult.

"We're very insulted when people believe that just because you're Indian, you want a casino," Norwood said.

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Under a 1758 treaty, the Brotherton Reservation was to be held in trust for the Lenape Indians. When New Jersey sold the land in 1801, the state violated the treaty and a 1790 law that gave the federal government authority over Indian land transactions, the lawsuit alleges.

In 1996, the Delaware Tribe of Western Oklahoma - descendants of the inhabitants of the Brotherton Reservation - began investigating a claim to the land. U.S. Rep. Jim Saxton (R., N.J.) took the matter seriously enough to introduce legislation in 1999 that would have retroactively ratified the Brotherton sale. The bill never passed.

The Unalachtigo entered the fray by suing the state in 2001. Last year, a state appellate court ruled that the case must be heard in federal court.

Nonetheless, the three-judge panel offered the opinion that, under New Jersey law, the sale of the reservation would have been valid.

"There is no question here that the Lenni Lenape not only assented to the sale of their land, but requested it, and... received full value," the court said.

Thomas said that was not correct. He argues that the land was actually sold by members of the Stockbridge-Munsee Band of the Mohican Nation, not the Lenape for whom the land was to be reserved.

"They tried to lump us all in together, and you can't do that," he said.

Either way, the journey from a land claim to a Foxwoods-scale operation could be arduous.

Blake Watson, an Indian-law expert at the University of Dayton School of Law in Ohio, said some courts have begun to rule that Indian land claims are too old, even though there is no statute of limitations.

Even if the Lenape won state land - in court or through a settlement - that doesn't mean they can open casinos. Tribes that want gambling have to be federally recognized, Watson said. The Lenapes are not.

Thomas argued - and Watson agreed - that the process is so badly broken that it could take more than 20 years to become recognized.

Thomas points to two other options: A U.S. District Court judge in New York recently recognized the Shinnecock Nation as legitimate even though that tribe had not gone through the recognition bureaucracy. It's still unclear, however, whether the Shinnecocks can now have gaming, Watson said. And, the Pequots won federal recognition through an act of Congress - the only tribe to do so.

"The odds of winning these land claims are increasingly problematic. They've got a lot of hurdles," Watson said. "It's possible for them to win a land claim and still not get gaming."

To Thomas, the issue of proving the tribe's legitimacy should be moot. But, just in case, he has an affidavit from a University of Pennsylvania archaeologist tracing the tribe's lineage back to the Brotherton Reservation.

"Everyone knows who we are," Thomas said. "The question is: What does the state want us to be?"

Thomas paused before answering his own question.

"Quiet."