Author Archives: Cape Legal Staff
After years of fighting, a New Jersey Native American tribe is once again officially recognized.
Attorney General Gurbir Grewal announced Thursday the state settled with the Nanticoke Lenni-Lenape Tribal Nation. As part of the settlement, the state will pay the tribe $2.4 million, and officially proclaim it has recognized the 3,000-member Native American tribe. The state made no admission of wrongdoing in the agreement.
“Tribal rights are important rights, and through this settlement we’ve been able to affirm the status of the Nanticoke Lenni-Lenape Nation as an American Indian Tribe formally recognized by the state,” Grewal said in the statement…Read More
Law360 (November 15, 2018, 2:52 PM EST) New Jersey will affirm its prior recognition of the Nanticoke LenniLenape Tribal Nation as a staterecognized tribe under a $2.4 million settlement over claims that state officials wrongfully repudiated that status and thus caused the tribe to lose federal benefits, the parties announced Thursday.
In a deal resolving the tribe’s federal and state lawsuits against the state attorney general, New Jersey acknowledged that it has officially recognized the 3,000member tribe as an American Indian tribe since 1982 and agreed to formally notify state and federal agencies of the tribe’s official recognition status, the parties said.
The $2.4 million payment from the state will allow the tribe to rebuild its cultural and economic development programs, the tribe said.
“This fight to restore recognition has been lengthy, costly and sad,” Tribal Principal Chief Mark Gould said Thursday in a statement. “But today New Jersey has reaffirmed that American Indians are not only part of its storied past, but valued partners in a shared future. We are ready to do our part to rebuild our relationship with the state government.”
State Attorney General Gurbir S. Grewal — who started in his position in January soon after Democratic Gov. Phil Murphy took office — said Thursday in a statement, “Tribal rights are important rights, and through this settlement we’ve been able to affirm the status of the Nanticoke LenniLenape Nation as an American Indian tribe formally recognized by the state.”
“As a result of this settlement, there is no more ambiguity regarding the tribe’s official status, and the tribe’s forward progress cannot be impeded by any staterelated recognition issues,” Grewal said. “I’m heartened that, through good faith negotiation, we’ve been able to resolve this matter fairly and bring an end to years of legal dispute.”
The settlement — which officials said includes no admission of liability or wrongdoing on the state’s part — ends a longrunning legal battle that began under the administration of Republican Gov. Chris Christie.
The tribe asserted that New Jersey had recognized it as an American Indian tribe in at least five ways accepted by federal agencies: a legislative resolution adopted in 1982, state statutes enacted in 1992 and 1995, an executive order signed in 2008, and decades of treatment by state agencies. That recognition enabled the tribe to obtain federal benefits.
In 2012, however, the U.S. Government Accountability Office issued a report that said it was New Jersey’s official position that there are no staterecognized tribes in the state.
The tribe said it ultimately discovered from the federal government that a Christie administration employee assigned to the state Commission on American Indian Affairs had informed the GAO that New Jersey has no staterecognized tribes. The tribe filed its lawsuits in 2015.
As a result of New Jersey’s reversal of its recognition status, the tribe had alleged it lost access to federal grants and scholarships, contracts previously won by tribally owned businesses and the ability to market and sell products as “Indianmade” under the Indian Arts and Crafts Act.
In an April brief supporting its summary judgment motion in the federal suit, the tribe said, “Federal benefits and opportunities of which the tribe had availed itself for decades vanished. The tribe’s businesses collapsed. The tribe had no choice but to terminate its employees. The tribe closed its offices. The tribe’s seniors, disabled persons, children and students lost critical assistance on which they relied in their daily lives.”
“The attorney general, purported lawyer for the people of New Jersey, had become the primary persecutor of its original and most vulnerable residents,” the brief said. That summary judgment motion was still pending before the parties reached the settlement.
The tribe had argued that the state’s disavowal of its tribal status was based on the racial stereotype that all Native American tribes want to operate casinos and the unfounded belief that the tribe would attempt to leverage state recognition to acquire federal casino gambling rights. The tribe said it prohibits gambling as a source of its income.
According to Thursday’s statement from the attorney general’s office, both parties agree that the state recognition acknowledged under the settlement does not provide the tribe with federal casino gambling rights. The statement said the tribe “specifically ‘disclaims any interest in casino gaming rights.’”
The state agreed under the deal that “its formal recognition is intended to help ‘qualify the tribe for all federal and state benefits … for which staterecognized tribes are eligible,’” the statement said.
The federal agencies that New Jersey will formally notify of the tribe’s recognition status include the Indian Arts and Crafts Board, the U.S. Department of Health and Human Services, the U.S. Small Business Association and the U.S. Department of Housing and Urban Development, the statement said.
Greg Werkheiser of Cultural Heritage Partners PLLC, one of the attorneys representing the tribe, said Thursday in a statement, “If the character of a nation is measured by how its treats its most vulnerable people, then today we have reason to celebrate this restoration of justice, but we all must do much better by our Native brothers and sisters.”
The tribe is represented by Greg Werkheiser and Eden Burgess of Cultural Heritage Partners PLLC, and Frank Corrado of Barry Corrado Grassi & GillinSchwartz PC. The state is represented by Stuart M. Feinblatt of the state attorney general’s office.
The cases are Nanticoke LenniLenape Tribal Nation v. Gurbir S. Grewal, case number 1:15cv05645, in the U.S. District Court for the District of New Jersey, and Nanticoke LenniLenape Tribal Nation v. Gurbir S. Grewal, case number L234315, in the Superior Court of New Jersey, County of Mercer.
Nanticoke Lenni-Lenape Tribal Nation
The state of New Jersey officially recognized the Nanticoke Lenni-Lenape Tribal Nation as an American Indian tribe thirty-six years ago, in 1982. State recognition is important to tribes because it affirms that our people and culture are both part of the story of humanity’s shared past and that we are present and valued in the modern world. State recognition also provides opportunities for tribes to advance our communities’ wellbeing through access to essential federal grants for health, education, and workforce development, and by certifying our traditional arts and crafts as Indian-made.
In 2012, members of former New Jersey Governor’s Chris Christie’s administration acted to undermine our state recognition, causing our Tribe significant harm. State officials acted based on racial stereotypes about Indian tribes and gambling. Our Tribe is one of many that prohibits gambling as a source of our livelihood. We had no choice but to sue the state in federal and state courts alleging violations of the Tribe’s rights under the United States and New Jersey Constitutions.
We are pleased that after six years of litigation against his office the new Attorney General of New Jersey has agreed to settle our legal claims. He has reaffirmed, in no uncertain terms, that New Jersey has indeed formally recognized the Tribe since 1982 and that the state reaffirmed that official recognition in multiple independently valid ways throughout the subsequent thirty-six years. Further, the Attorney General withdraws and nullifies any prior statements questioning the Tribe’s recognition status. In addition, the state will compensate the Tribe for a portion of our significant economic losses suffered during this battle.
Beyond our Tribe, this outcome has significant implications throughout Indian Country, for the other two other state-recognized tribes in New Jersey whose status was similarly undermined and the tens of thousands of members of the more than sixty state-recognized tribes in other states who may rest more easily. This settlement establishes that states may not retroactively undermine tribal recognition by violating a tribe’s rights to due process and equal protection of the laws.
We will immediately begin to reinvigorate cultural and community-building efforts for our people, hand-in-hand with partners old and new. We will be aided in this effort through the continuing assistance of our legal and policy counsel at Cultural Heritage Partners, PLLC, and with the prayers and support of neighbors near and far.
We hope and believe that this resolution will set the stage for the restoration of a positive, mutually respectful, and collaborative relationship between the Tribe, the State of New Jersey, and the government of the United States.
The Nanticoke Lenni-Lenape Tribal Nation gives thanks the Creator for his blessings. We also express our profound gratitude to the following people and institutions whose efforts made this day possible:
- Our Tribal elders, who fought for recognition decades ago, and who mustered the strength to fight for its restoration in their twilight years.
- For their tireless and skillful efforts over six years to defend our civil rights, our legal counsel: Greg Werkheiser and Eden Burgess and their colleagues at the firm of Cultural Heritage Partners, PLLC, and Mr. Frank Corrado and his colleagues at the firm Barry, Corrado & Grassi, PC.
- For filing court briefs in support of our cause as Amici Curiae (Friends of the Court): The National Congress of American Indians, The Alliance of Colonial Era Tribes, The Indian Law Resource Center, the Salem Quarterly Meeting of the Society of Friends, The Greater New Jersey Conference of the United Methodist Church, and these parties’ legal counsel in this matter, Joseph A. Patella at Hunton Andrews Kurth, LLP.
- For their fair, impartial, and thoughtful administration of justice: The Hon. Renee Marie Bumb, United States District Judge of the United States District Court for the District of New Jersey; the Hon. Joel Schneider, United States Magistrate Judge for the District of New Jersey; and the Hon. Mitchel E. Ostrer, George S. Leone, and Francis J. Vernoia, judges for the Appellate Division of the Superior Court of New Jersey.
- For his effective services as a mediator, the Hon. Dennis Michael Cavanaugh, United States District Judge of the United States District Court for the District of New Jersey (ret.).
- For their expertise in assessing financial damages: Edward A. Gold, Stephen Holzen, and Scott Jones and their colleagues at the firm of Stout Risius Ross, LLC.
- For their work championing the recognition of American Indians in New Jersey in decades past: the late Hon. W. Cary Edwards, former Attorney General of New Jersey, Jack F. Trope, former assistant General Counsel to two New Jersey Governors, and other honorable public servants in the state and federal governments.
- For their wisdom in seeking resolution of this controversy: the Hon. Phil Murphy, Governor of New Jersey, and the Hon. Gubir S. Grewal, Attorney General of the State of New Jersey, and his colleagues.
- For their neighborly love and encouragement: the people of Cumberland County, the Cumberland County Freeholders, the Hon. Mayor Albert B. Kelly and The City of Bridgeton, officials of Fairfield Township, the faculty and students at Monmouth University, and the staff of the Penn Museum.
- For their constant well-wishes, individual supporters throughout New Jersey, the United States, and Indian Country.
- For providing additional legal guidance in Indian Law, attorneys Judy Shapiro and Michael Anderson.
The news outlets and reporters whose regular, in-depth, and accurate coverage helped to shine a cleansing light, including, in alphabetical order: Tristan Ahtone for Aljazeera America; Thomas Barlas and Tyler R. Tynes for The Press of Atlantic City; Alex Bauer for RYOT; Cleve Bryan and David Madden and for CBS Philly and KYW Radio Philly; Michael Booth for New Jersey Law Journal; the Editorial Board and Stephanie Maksin for South Jersey Times; Lisa J. Ellwood for Indian Country Today; Vince Farinaccio for SNJ Today; Chris Fry and Nick Rummell for Courthouse News; Bill Gallo Jr., Albert B. Kelly, Anna Merriman, and Don E. Woods for NJ.com; Aaron Kase for Vice Media; Vidya Kauri, Adam Lidgett, Jeannie O’Sullivan, Christine Powell, and Andrew Westney for Law 360; Cara McCollum for SJ Today; Kate Morgan for The Progressive; Geoff Mulvihill and Staff for the Associated Press, as published by the Washington Post, the New York Times, and many others; Jacqueline L. Urgo for Philly.com; Megan Pauly for Delaware Public Media; Dr. Joseph Schuldenrein for VoiceAmerica; Staff for Indianz.com; and Staff for Native News Today.
Public Statement of Gratitude By the Nanticoke Lenni-Lenape Tribal Nation Upon Resolution of its Long-Standing Civil Rights Litigation Against the Attorney General of New Jersey November 15, 2018
My name is Oliver Barry and I am one of the attorneys at the office of Barry, Corrado, Grassi & Gillin-Schwartz, P.C. This is a story about my father, Stephen Barry, who is one of the founding partners of the firm. But this is not really a story about lawyers or the law.
When people think about lawyers, a variety of images come to mind. People might imagine suits, ties, briefcases, shiny shoes. Maybe some less savory images depending on the person.
What they probably would not imagine was a knack for gardening.
Over the course of his career, my father has handled complex business disputes, serious personal injury and death cases, and admiralty and commercial fishing matters beyond count. But I can tell you that one of his favorite things has nothing to do with the practice of law.
Every summer, he goes to the trouble of transforming his property into a field of sunflowers that the whole community can enjoy. He welcomes passersby to stop and wander through the property and enjoy the view. Over the last few years, the Barry family’s property has become a popular tourist destination in late July through early August. Locals and visitors alike wander the property. People have even begun to use the scenery as a backdrop for professional photography.
My father does not charge anyone for touring the property or for using it for photo shoots. Why does he go to the trouble of planting and caring for the flowers each summer? He responds because it is something beautiful and simple that people can enjoy.
So if you should find yourself traveling along Route 47 in Cape May County and happen across acres of sunflowers, please feel free to stop by and explore. Because life is too short not to stop and smell the flowers sometimes.
-Oliver T. Barry, Esq.
Freedom of Speech is oft considered one of the fundamental and defining freedoms of the United States of America. But the actual contours of the right to free speech are generally poorly understood. Especially in the context of private employees who are subjected to discipline at work for their speech outside of the workplace.
In the article “Protecting a Private Employee’s Free Speech”, published in the New Jersey State Bar Association Employment and Labor Law Quarterly, partner Frank Corrado discusses how New Jersey law and the New Jersey Constitution can provide free speech protection even to private employees speaking on matters of public importance.
The article notes the New Jersey Constitution provides an affirmative right to free speech rather than a mere limit on the government’s ability to regulate speech. It examines how this state constitutional right has been interpreted and applied in different contexts in the past and extrapolates how they may be applied to speech by private employees both in the course of and outside of the workplace.
If you are an employer or employee have any questions regarding freedom of speech, constitutional issues, or questions regarding litigation generally you can reach one of our staff at 609-729-1333.
Download the full article here: NJSBA Labor and Employment Law Quarterly
Additionally, you can learn more about the New Jersey State Constitution here!
Frank L. Corrado, Esq. is a partner at Barry, Corrado, Grassi & Gillin-Schwartz, PC and concentrates his practice in civil rights on constitutional law as well as municipal law and representation in real estate matter to both developers and individuals.
We are happy to announce the addition of two new office locations to better serve the South Jersey community. Our new locations are:
Seaville Office – 498 Kings Hwy, South Seaville, NJ 08246.
Linwood Office – 2106 New Road, No. F4, Linwood, NJ 08221.
We look forward to continuing to help our clients and the community in 2018 and wish everyone a happy and healthy New Year.
Partner Frank Corrado, Esq. participated in and authored the brief in an appellate victory in the case of Nanticoke Lenni Lenape Tribal Nation v. Hoffman, Docket No. A-2756-15T1. Therein, the Third-Circuit Court of Appeals reversed the decision of the Federal District Court dismissing the case brought by the Nanticoke Lenni-Lenape Tribal Nation alleging that the State of New Jersey had violated its constitutional rights by denying its status as a Native American Tribe after decades of so recognizing them.
This is a major victory this means that the Nanticoke Lenni-Lenape Tribal Nation will be able to move forward with its claims that the State of New Jersey has gone back on its longstanding recognization of the Naticoke as an American Indian Tribe.
Attorney Gregory A. Werkheiser, Esq. of the Cultural Heritage Foundation, PLLC argued the case. L. Eden Burgess, also of the Cultural Heritage Foundation, also participated in briefing the case.
Barry.Corrado.Grassi & Grassi congratulates attorney Chris Gillin-Schwartz, Esq. on his recent win in the New Jersey Appellate Division. In 5 Perry Street, LLC v. Southwind Properties, LLC, the court agreed with our position that defendant Southwind’s last-minute attempt to transfer property to the sole corporate principal was an endeavor to evade the company’s debts and defraud our client. What is more impressive, this is neither Mr. Gillin-Schwartz’s first trip to the Appellate Division nor his first victory. In addition to his other areas of expertise, Mr. Gillin-Schwartz is quickly making a name for himself as an appellate advocate.Read The Full Opinion Here
“[A] people who mean to be their own governors must arm themselves with the power which knowledge gives.”
Wise words from founding father James Madison. It is for this reason that first amendment protections are perhaps strongest in the prohibition against “prior restrains”, or government attempts to prevent speech from occurring. However, the way the courts examine such cases has fallen behind the technology in the age of the world-wide web and social media.
Partner Frank L. Corrado and co-author CJ Griffin discuss these issues in the article “The Use of Prior Restraints on Publication in the Age of Wikileaks”, featured in the New Jersey Lawyer Journal June 2017. The article discusses the current case law and how the same might be applied to a case involving prior restraints against a future disclosure of government information.
Frank L. Corrado concentrates his practice in civil rights and constitutional law, with a special emphasis on the First Amendment. In addition, he practices municipal law, and provides counsel and representation in real estate matters to both developers and individuals. Read more here.Download The Full Article
On Wednesday, February 15, 2017, the Appellate Division issued a decision in the case of Heredia v. Piccininni ordering a new trial because the court below failed to conduct full and fair voir dire during jury selection.
The Appellate Division agreed with Barry.Corrado.Grassi & Gillin-Schwartz, PC attorney Oliver Barry, who authored the legal brief and argued the appeal before the court, that the trial court’s failure to question potential jurors deprived the parties of a fair trial and necessitated reversal. Attorneys Dan Rosner and Ed Tucker of Rosner & Tucker, P.C. in Vineland, New Jersey and Frank Corrado of Barry.Corrado.Grassi & Gillin-Schwartz, P.C. were also instrumental in the drafting of the appellate briefs and preparing for argument.
Voir dire is the process before trial where potential jurors are questioned to determine if can be fair and unbiased based on the facts and issues in a particular case. The New Jersey Supreme Court issued mandatory directive 4-07, which requires that judges ask open-ended questions of each juror as part of the process. This requirement is critical to the parties because it gives the attorneys involved a chance to explore whether potential jurors possess any implicit bias that might affect their ability to impartially consider the case.
Going forward, this decision will help litigants on both sides of the aisle get a fair shake by ensuring a comprehensive and open jury selection process.
Oliver Barry is an associate at Barry.Corrado.Grassi & Gillin-Schwartz, PC who focuses his practice in civil litigation generally, personal injury, employment discrimination, and civil rights litigation. Learn more about Mr. Barry and the rest of our team here or contact us here to setup a free consultation.