                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
         parties in the case and its use in other cases is limited. R.1:36-3.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2756-15T1
NANTICOKE LENNI-LENAPE
TRIBAL NATION,

        Plaintiff-Appellant,

v.

JOHN J. HOFFMAN, Acting Attorney
General of the State of New Jersey,

     Defendant-Respondent.
______________________________________

              Argued June 6, 2017 – Decided July 10, 2017

              Before Judges Ostrer, Leone and Vernoia.

              On appeal from the Superior Court of New
              Jersey, Law Division, Mercer County, Docket
              No. L-2343-15.

              Gregory A. Werkheiser (Cultural Heritage
              Partners, PLLC) of the Washington, DC bar,
              admitted pro hac vice, argued the cause for
              appellant (Barry, Corrado & Grassi, P.C., and
              Mr. Werkheiser, attorneys; Frank L. Corrado,
              and L. Eden Burgess (Cultural Heritage
              Partners, PLLC) of the Washington, DC bar,
              admitted pro hac vice, on the brief).

              Stuart M. Feinblatt, Assistant Attorney
              General, argued the cause for respondent
              (Christopher S. Porrino, Attorney General,
              attorney; Mr. Feinblatt, of counsel and on the
              brief; Kimberly A. Hahn, Deputy Attorney
              General, on the brief).
           Andrews Kurth LLP, attorneys for amici curiae
           Indian Law Resource Center, Alliance of
           Colonial Era Tribes, and Religious Society of
           Friends Salem Quarter Indian Affairs Committee
           (Joseph A. Patella, on the brief).

PER CURIAM

     Plaintiff Nanticoke Lenni-Lenape Tribal Nation filed a five

count   complaint   alleging   defendant,    the      New   Jersey   Attorney

General,1 violated its rights under the New Jersey Constitution

and breached duties imposed under the common law by denying and

repudiating the State's prior recognition of plaintiff as an

American Indian Tribe. Plaintiff alleged defendant's actions have

and will deprive it of benefits under various federal statutes and

programs that are conditioned upon the State's recognition of it

as an American Indian Tribe. The trial court granted defendant's

motion to dismiss the complaint under Rule 4:6-2(e), finding

plaintiff's claims are barred because the State never enacted a

statute expressly recognizing plaintiff as an American Indian

Tribe. We reverse because we find the court applied the wrong

legal   standard    and   incorrectly   failed   to    accept   plaintiff's

factual allegations in the complaint as true.




1
  Acting Attorney General John Jay Hoffman was named as the
defendant in the complaint in his individual and official
capacities. Hoffman's tenure ended in March 2016.

                                    2                                 A-2756-15T1
                                      I.

     Because we review the trial court's dismissal of the complaint

under Rule 4:6-2(e), we accept as true the factual allegations in

the complaint. Craig v. Suburban Cablevision, 140 N.J. 623, 625

(1995).   Plaintiff   is   "a   constitutionally   organized,     self-

governing, inherently sovereign American Indian tribe," a majority

of whose members reside in New Jersey. It is presently comprised

of about 3,000 members, and maintains tribal grounds in Burlington

County.

     Plaintiff avers that in 1982, the State Legislature adopted

a concurrent resolution "officially recogniz[ing] plaintiff as an

American Indian Tribe."2 Since the enactment of the resolution,

plaintiff has received benefits under various federal statutes and

programs based on New Jersey's recognition of plaintiff as an

American Indian Tribe.

     Plaintiff further alleges that following the adoption of the

resolution, the State routinely reaffirmed its recognition of

plaintiff and two other tribes as American Indian Tribes "through


2
  A copy of New Jersey Senate Concurrent Resolution No. 73 (1982),
was submitted in support of defendant's motion to dismiss the
complaint. The resolution resolved that "the Confederation of
Nanticoke-Lenni Lenape Tribes of southern New Jersey, an alliance
of independent surviving tribes of the area, is hereby designated
by the State of New Jersey as such," and that "the Congress of
the United States, is hereby memorialized to acknowledge the
Confederation . . . as such."

                                  3                             A-2756-15T1
a series of actions consistent with and necessarily predicated

upon that recognition." In 1992, the Legislature passed, and the

Governor signed into law,   L. 1991, c. 359, which amended N.J.S.A.

26:8-49,   entitled   "[c]orrections   to   birth   and   fetal     death

certificates." The statute states in part:

           In the case of a correction to the birth record
           of a member of one of the three New Jersey
           tribes of American Indians, the Powhatan-
           Renape Nation, the Ramapough Mountain Indians,
           or the Nanticoke[]Lenni-Lenape Indians, the
           substantiating documentary proof may include,
           but shall not be limited to, an affidavit,
           satisfactory to the State registrar or any
           local registrar and signed by the chief of the
           tribe that according to tribal records the
           person whose certificate is to be amended is
           a member of the tribe of the chief whose
           signature appears on the affidavit.

           [N.J.S.A. 26:8-49 (emphasis added).]

     The Assembly Health and Human Services Committee explained:

            . . . This bill permits corrections to birth
           certificates and fetal death certificates of
           certain American Indians to be made on the
           basis of an affidavit signed by the tribal
           chief stating that the person in question is
           a member of the tribe according to tribal
           records. American Indians are frequently
           issued birth certificates indicating an
           incorrect    race,    and   often    encounter
           difficulties     in     obtaining      evidence
           satisfactory to the State registrar of vital
           statistics or to local registrars to support
           their claims that their birth certificates
           should    be   amended.   This    bill    would
           specifically allow a chief of one of the three
           New Jersey tribes, the Powhatan-Renape Nation,
           the Ramapough Mountain Indians, or the

                                 4                                A-2756-15T1
            Nanticoke[]Lenni-Lenape Indians, to submit
            affidavits concerning tribal records which
            could be used as proof of membership in the
            chief's tribe.

            [Gen. Assem. Health and Human Servs. Comm.,
            Statement to Gen. Assem. No. 999 (codified at
            N.J.S.A. 26:8-49).]

       In September 1992, the Office of Governor James Florio sent

a letter to the federal Indian Arts & Crafts Board. The Board

regulates the use of the "Indian-made" label on products, and

permits only state or federally recognized tribes to use the label.

The letter stated:

            Governor Florio has asked me to respond to
            your recent letter about the state of state-
            recognized Indian tribes in New Jersey. The
            New Jersey State Legislature, comprised of the
            Senate and Assembly, is the law-making body
            that is responsible for the legal recognition
            of Indian tribes. Formal recognition is
            accomplished by State Resolutions, which
            remain in effect until rescinded. To date,
            three tribes have been recognized.

       In 1995, the Legislature passed and the Governor approved

legislation creating the nine-member Commission on Native American

Affairs. See L. 1995, c. 295, codified as N.J.S.A. 52:16A-53 to -

58.3 The Commission "act[s] as a liaison among American Indian

communities, the State and federal governments, and educational,

social and cultural institutions." N.J.S.A. 52:16A-56(e). The



3
    The legislation was amended in 2001. L. 2001, c. 417, §§ 2-7.

                                  5                          A-2756-15T1
Commission consists of nine members: the Secretary of State and

eight public members; "[t]wo of the public members shall be members

of    [plaintiff],     to     be    appointed     by    the     Governor     on   the

recommendation of [plaintiff] and with the advice and consent of

the   Senate."    N.J.S.A.     52:16A-53.       There    are    also   two   members

appointed from the Ramapough Mountain Indians, the Powhatan Renape

Nation, and the "Intertribal People." Ibid. "Intertribal People"

are American Indians who reside in New Jersey and are not members

of the three aforementioned tribes, but are "enrolled members of

another   tribe      recognized      by   another       state    or    the   federal

government." Ibid.

      In February 2000, the Office of New Jersey's Secretary of

State "confirmed, upon inquiry, that the State of New Jersey has

recognized three groups of Indians. They are referred to in the

law as the Nanticoke Lenni-Lenape Indians, the Ramapough Mountain

Indians, and the Powhatan Renape Nation."

      Also in 2000, the Office of Governor Christine Todd Whitman

"confirmed to the U.S. Department of Commerce, Census Bureau, that

[plaintiff]   [was]     one    of   New   Jersey's      three    state-recognized

American Indian tribes." The U.S. Census Bureau responded by

stating that its records showed the State granted recognition to

tribal governments including plaintiff.



                                          6                                  A-2756-15T1
     In a November 2000 report to the Governor and Legislature,

the Commission stated there were "only three tribes" "legally

recognized by the State" and identified plaintiff as one of them.

According    to   plaintiff,    between    2000   and    2001,   "multiple

governmental environmental assessments for improvements at McGuire

Air Force Base confirmed that [plaintiff] is state-recognized."

     In 2001, an individual claiming to represent his own newly

created tribe sued the State seeking to acquire land, and plaintiff

sued the individual "to prevent him from implying any association

with it." The individual's lawsuit "failed, in part, because the

[S]tate asserted that the citizen was not affiliated with one of

its three existing tribes."

     In March 2003, U.S. Senator John Corzine wrote to the U.S.

Department of the Interior stating:

            The   Nanticoke   Lenni-Lenape    have   been
            functioning as a designated tribe in New
            Jersey since a concurrent resolution passed
            the New Jersey Legislature to designate them
            as such in 1982. As a result, the Nanticoke
            Lenni-Lenape has received grants and services
            from federal programs for [state-recognized]
            Indians.

     In 2006, Governor Corzine created the Committee of Native

American Community Affairs "to research and report on the social

and economic conditions of New Jersey's state-recognized American

Indian   tribes   and   other   American    Indian      communities."   The


                                    7                              A-2756-15T1
Committee issued a 2007 report observing "that while the [S]tate's

prior recognition of the Tribes was legally sufficient, it was

proving politically insufficient, because over time members of the

state bureaucracy had begun to undermine the tribes' status out

of confusion and prejudice," and recommending "that further steps

be taken to reaffirm the recognition of 25 years prior, with

options including refreshed concurrent resolutions, an executive

order, or legislation." The report found:

            Concurrent New Jersey legislative resolutions
            passed in 1980 and 1982 recognized three New
            Jersey Native American tribes — the Nanticoke
            Lenni-Lenape, the Powhatan Renape, and the
            Ramapough Lenape [sic] . . . . [The Committee]
            determined that the 1980 and 1982 concurrent
            legislative resolutions did recognize the
            three     New     Jersey     American     Indian
            tribes . . . . New state action might be
            taken to further "affirm state recognition for
            [the]       three        tribes       previously
            recognized .    .    .      ," even if such
            legislation was not required.

In 2010, "the [S]tate once again affirmed to the U.S. Census Bureau

that [plaintiff] was state-recognized."

      Plaintiff's complaint also detailed alleged actions taken by

State officials to undermine the State's recognition of plaintiff

as an American Indian Tribe. Plaintiff alleges that in 2001, in

response to a request from the federal Indian Arts & Crafts Board

to   the   Commission   for   any   additions   to   the   State's   list   of

recognized tribes, the Division of Gaming Enforcement wrote a

                                      8                              A-2756-15T1
letter advising that the State had no state-recognized tribes. The

letter,   written      by   the   Director       of   the     Division     of     Gaming

Enforcement, stated that the 1982 concurrent resolution did not

formally recognize plaintiff, and added that only the federal

government     could    determine       whether       the   tribes       were     state-

recognized.

      In 2012, the federal General Accountability Office (GAO)

issued a report "on the status of American Indians in the U.S."

Plaintiff then "discovered from the federal government that a

state employee assigned to staff the state Commission on American

Indian Affairs had, without the knowledge or consent of the

Commissioners who are charged with executing its mission, informed

the GAO that New Jersey had no state-recognized tribes." Plaintiff

subsequently    "sought     answers      from    [d]efendant."           According      to

plaintiff, defendant's Chief of Staff proposed a "formal written

retraction of the state's previous state correspondence denying

the   state-recognition      of   the    tribes,"       but    it   never       came    to

fruition.

      Plaintiff   alleges     that    as     a   consequence        of    the   State's

repudiation of its recognition of plaintiff as an American Indian

Tribe, plaintiff has suffered and will continue to suffer the loss

of: the ability to market and sell products as "Indian-made" under

the Indian Arts and Crafts Act, 25 U.S.C.A. §§ 305 to 310; grants

                                         9                                       A-2756-15T1
from    the      U.S.     Department     of    Health     and    Human    Services

Administration (HHS) for Native Americans; the ability to do

business as a certified tribal company; educational opportunities

and funding; loss of funding from HHS's block grant program;

membership and standing in professional organizations, including

the National Congress of American Indians; approval for lines of

credit; and eligibility for government contracts.

       Based on the foregoing allegations, plaintiff asserted causes

of action for violation of plaintiff's right to procedural due

process, substantive due process, and equal protection under the

New    Jersey    Constitution.       Plaintiff    also    asserted     claims   that

defendant       is   estopped    from    repudiating       its   recognition      of

plaintiff       as   an   American    Indian     Tribe,   and    the   repudiation

constitutes arbitrary and capricious action under state law.

       Defendant        moved   to     dismiss     the    complaint,      claiming

plaintiff's causes of action were fatally flawed because the State

never officially recognized plaintiff as an American Indian Tribe

in the first instance. Defendant argued plaintiff's causes of

action were deficient as a matter of law because they were based

on the false premise that plaintiff had been recognized by the

State. Defendant asserted state recognition could only be extended

by statute, and that the 1982 concurrent resolution and the other

statutes      and    declarations      referenced    in    the   complaint      were

                                         10                                A-2756-15T1
insufficient to confer the state recognition claimed by plaintiff.

Defendant argued it could not unlawfully repudiate a recognition

that was never officially granted and, as a result, plaintiff's

causes of action should be dismissed.

     In an oral opinion, the court stated that it was plaintiff's

position that "New Jersey law recognizes"4 plaintiff as an American

Indian Tribe. The court limited its consideration of defendant's

motion to a determination of whether there was a New Jersey statute

extending recognition. The court reasoned that the 1982 resolution

was insufficient to establish recognition because it did not

constitute a law under Article 5, Section 1, Paragraph 14 of the

New Jersey Constitution.5   The court further found that although

N.J.S.A. 26:8-49, which was enacted in 1992, expressly states that

plaintiff is one of New Jersey's "Tribes of American Indians," it

is not a law that extended recognition because it was intended


4
   This is an incorrect statement of plaintiff's position.
Plaintiff's complaint alleges that the 1982 resolution, subsequent
statutes, and the pronouncements of State officials conferred or
confirmed recognition sufficient for its receipt of various
federal government benefits.
5
  The court found that under the State Constitution a law must
first be approved by both houses of the Legislature and then only
becomes a law if signed by the Governor within the time period
allowed, or is not returned to the Legislature by the Governor
with objections before the time expires for his consideration, or
if the Legislature overrides the Governor's objections.



                               11                           A-2756-15T1
only to identify plaintiff as "an ethnic group for vital statistic

purposes."

     The court did not address the 1995 enactment of N.J.S.A.

52:16A-53, which established the Commission, but instead relied

on   an   amendment      to   N.J.S.A.    52:16A-56(g)6    providing      that

recognition   of   the    "authenticity    of   any   organization,    tribe,

nation or other group as an American Indian Tribe . . . shall

require specific statutory authorization." The court determined

there was no statute extending recognition to plaintiff as an

American Indian Tribe, and that plaintiff's complaint did not

state claims upon which relief could be granted because they were

premised on the incorrect legal contention that plaintiff was a

state recognized American Indian tribe. The court entered an order

granting defendant's motion to dismiss the complaint. This appeal

followed.

                                    II.

     Rule 4:6-2(e) authorizes the dismissal of a complaint for

"failure to state a claim upon which relief can be granted." When

considering an application for relief under this rule, a court is

required to "search[] the complaint in depth and with liberality

to ascertain whether the fundament of a cause of action may be


6
  The amendment became effective on January 8, 2002. L. 2001, c.
417, § 4.

                                    12                                A-2756-15T1
gleaned even from an obscure statement of claim, opportunity being

given to amend if necessary." Major v. Maguire, 224 N.J. 1, 26

(2016) (quoting Printing Mart-Morristown v. Sharp Elecs. Corp.,

116 N.J. 739, 746 (1989)).

      We review an order of dismissal under Rule 4:6-2(e) de novo

and "apply the same test as the Law Division." Smerling v. Harrah's

Entm't, Inc., 389 N.J. Super. 181, 186 (App. Div. 2006). In other

words, "our inquiry is limited to examining the legal sufficiency

of the facts alleged on the face of the complaint," and determining

if "a cause of action is 'suggested' by the facts." Green v. Morgan

Props., 215 N.J. 431, 451 (2013) (quoting Printing Mart, supra,

116 N.J. at 746). "The examination of a complaint's allegations

of fact required by the aforestated principles should be one that

is   at   once   painstaking     and   undertaken   with    a    generous    and

hospitable approach." Printing Mart, supra, 116 N.J. at 746.

      The complaint alleges plaintiff            received various federal

benefits since 1982 because it satisfied a required condition for

the receipt of the benefits: state recognition as an American

Indian    tribe.   The   complaint     further    alleges      the   State   has

wrongfully   repudiated    its    recognition     and   that    plaintiff    has

therefore lost and will lose federal benefits it has enjoyed since

1982.



                                       13                               A-2756-15T1
     Defendant's   motion      to   dismiss       the   complaint      was   founded

solely upon the argument that the State never granted recognition

qualifying    plaintiff      for    the     receipt     of   federal     benefits.

Defendant argued recognition could be extended only by statute,

there was no statute extending recognition, and thus plaintiff's

claims rested on a false legal premise and should be dismissed.

The court accepted defendant's argument, found that a statute was

required for an extension of state recognition, and concluded

defendant could not wrongfully repudiate recognition that had

never been granted.

     Based on our review of the complaint, we are convinced the

court erred in dismissing plaintiff's claims for two reasons.

First, the court failed to accept plaintiff's factual allegations

that the State has recognized plaintiff as an American Indian

tribe in a manner sufficient for plaintiff's receipt of federal

benefits.    Second,   the    court       erred   by    failing   to    apply     the

applicable federal standards in determining that state recognition

was never granted. We address the issues in turn.

     In considering defendant's dismissal motion, the court was

required to accept the complaint's factual allegations as true and

interpret them with great liberality. See Major, supra, 224 N.J.

at 26. The court's conclusion that a statute extending recognition

was required for plaintiff's receipt of federal benefits, however,

                                      14                                     A-2756-15T1
is contradicted by the facts alleged in the complaint. According

to the complaint, plaintiff has continuously received federal

benefits since 1982 based on the State's recognition of it as an

American Indian Tribe.

     The complaint alleges the federal government accepted the

actions   of   the   State,   whether   by   concurrent   resolution,

declarations of government officials, statutes such as N.J.S.A.

26:8-49 and N.J.S.A. 52:16A-53,7 or otherwise, as recognition

sufficient to qualify plaintiff for federal benefits. Therefore,

the court's determination that a statute was required to extend

the recognition is incorrect as a matter of fact based on the

allegations in the complaint. If, as the court found, a statute

was the only means of obtaining state recognition satisfying the

federal standard for benefits, plaintiff would not have received

federal benefits based on state recognition since 1982 as alleged

in the complaint.8


7
  Because we conclude defendant's claim plaintiff did not receive
state recognition sufficient to qualify it for federal benefits
must be determined under the federal standards, we do not offer
an opinion on the court's determination that N.J.S.A. 26:8-49
did not constitute sufficient state recognition other than to note
the court made its determination without reference to the federal
standards.
8
  We recognize that N.J.S.A. 52:16A-56(g) was amended in 2002 to
provide that recognition of an American Indian Tribe "shall require
specific statutory authorization. Defendant states it is not


                                 15                           A-2756-15T1
     Moreover, the court erred by failing to consider or apply the

federal standard for determining whether plaintiff was a state

recognized American Indian tribe entitled to receive the benefits

cited in the complaint. Plaintiff claimed a loss of benefits which

are awarded only upon the federal government's acceptance of state

recognition of an American Indian tribe. As such, federal standards

determine   whether   a   state's    action   constitutes   recognition

sufficient for the award of benefits.9

     We offer no opinion on the applicable standards for the

federal government's acceptance of the State's recognition of

plaintiff during the period alleged in the complaint. The standards

were not considered by the motion court. It appears the current

standards are flexible and differ among the federal agencies from



claiming N.J.S.A. 52:16A-56(g) is retroactive. We offer no opinion
on that subject or the effect of the enactment on plaintiff's
entitlement to federal benefits. We observe that the court offered
no support for its conclusion that a statute was required for
state recognition prior to the 2002 amendment, and did not address
the federal government's continuing grant of benefits to plaintiff
based on state recognition following the amendment.
9
  The federal government may directly recognize a tribe as an
American Indian Tribe. See generally 25 C.F.R. §§ 83.1 to 83.12.
Plaintiff does not allege direct federal recognition here.
Plaintiff alleges that New Jersey's recognition has qualified it
for the receipt of federal benefits since 1982 and defendant's
actions constitute a wrongful and constitutionally impermissible
repudiation of the State's recognition.



                                    16                          A-2756-15T1
which plaintiff has received benefits. But they do not expressly

require the enactment of a state statute extending recognition.10

See e.g., 20 U.S.C.A. § 1401(13) (defining "Indian tribe" under

the Individuals with Disabilities Education Act as "any Federal

or   State     Indian   tribe,     band,       rancheria,     pueblo,     colony,     or

community");      25    U.S.C.A.      §    4103(13)(A)        (defining    a    "State

recognized tribe" under the Native American Housing Assistance and

Self-Determination       Act     as   "any      tribe,   band,    nation,      pueblo,

village, or community . . . that has been recognized as an Indian

tribe by any State" and entered into a contract under the United

States Housing Act of 1937); 25 C.F.R. § 309.2(e)(2) (providing

the Indian Acts and Crafts Act applies to tribes that are "formally

recognized . . . by a State legislature or by a State commission,

or   similar    organization      vested       with   State    tribal     recognition

authority"); 34 C.F.R. § 263.3(3)(1) (providing that under the


10
  "State recognition can take a variety of forms, and federal laws
extending to state-recognized tribes defer to the states'
characterizations." Cohen's Handbook of Federal Indian Law § 3.02
(2015). "Some states administer lands set aside for tribal groups
that are not recognized by the federal government. Other states
provide political recognition through representation on state
Indian commissions or councils, or administer benefit programs for
non-federally recognized tribes located within their boundaries."
Ibid. "At least one state has authorized a state-recognized tribe
to create a police force, vested with most of the same powers as
state or municipal officers." Ibid. "Another form of state
recognition may consist of merely acknowledging that a particular
tribal group constitutes the indigenous people of a particular
area in the state." Ibid.

                                          17                                   A-2756-15T1
Department   of     Education's     Professional       Development        Program,

"Indian"   means    "[a]   member    of      an   Indian   tribe   or    band,       as

membership is defined by the Indian tribe or band, including . .

. any tribe or band recognized by the State in which the tribe or

band resides"); 45 C.F.R. § 96.44(b) (finding "[a]n organized

group of Indians" eligible for a block grant "based on [s]tate

recognition if the State has expressly determined that the group

is an Indian tribe," including by a "statement of the State's

chief executive officer verifying" state recognition); 45 C.F.R.

§ 1336.33(a)(3)(ii),(4)(ii) (providing the eligible groups for

certain    Native    American       programs       under    the    HHS        include

"[i]ncorporated non-Federally and State recognized" tribes).

     We do not offer an opinion as to whether the resolution,

statutory enactments, or pronouncements by the State officials

cited in the complaint were sufficient under the past or present

federal standards to correctly bestow upon plaintiff the federal

benefits it claims it lost and will lose as a result of the State's

actions. On a motion to dismiss the complaint, it is sufficient

that the complaint alleges they were. We decide only that the

court erred by not accepting as true the facts alleged in the

complaint and by determining, without regard to the complaint's

factual    allegations     or     the        federal   standards        for     state



                                        18                                    A-2756-15T1
recognition, that the State did not grant recognition in the first

instance.

     Reversed and remanded. We do not retain jurisdiction.




                               19                            A-2756-15T1
