Sand Hill Case Judges Under Fire

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On June 30, 2010 Judge Katherine Hayden ruled that she will NOT allow the last Lenape tribe in NJ to use most of the evidence, facts and data that proves their case.  Things like Title VI, the 14th Amendment, the Ku Klux Klan Act, the Non-Intercourse Act, State contract law, Federal laws protecting burial grounds & artifacts, and enforcement of treaties. Essentially EVERYTHING – laws, facts, precedent, that would result in the oldest Indian Tribe in NJ winning their case.

Before the tribe was represented by legal counsel, Chairman Ronald Holloway, Red Chief in a long line stemming from the original Lenape Blood Chiefs, addressed his tribe’s right to water rights, natural resources, hunting rights and the over 3000 acres of land that from 1758 to 1802 was known as Brotherton Reservation. Chairman Holloway did this in nearly 100 pages of documents that referenced Indian cases from across the nation and long accepted and understood Federal law.  

Believing that he could represent his tribe in an official capacity as the head of a sovereign nation, Ron Holloway, an expert in Treaty law and Sovereignty, hit a brick wall when dealing with the Federal judges in Newark. Apparently there are two kinds of laws – one that applies to the plaintiffs in this case, and one that applies to the defendants. An obvious failure of Equal Protection under the law is going on in this case. And it always seems to favor the defendants rather than the Tribe.

The timeline of the case gives you a good glimpse of the travesty of justice that is unfolding in the Federal Court in Newark.

Even when a plaintiff is not schooled in the myriad technicalities of legalese, they are still entitled to justice, and when a person represents themselves in court, it is hoped that justice will still prevail. Most folks who represent themselves in court are given the benefit of the doubt and not treated as if they were asking to be cheated of a fair outcome just because they did not cross every” t” or dot every “I”.

Unfortunately, at the very same time that Ron Holloway was given strict deadlines and his motions were being swiftly denied, his opponents were given such leeway over missing deadlines, filing motions, AND filing answers that it strains credulity. Ordinarily, the way our legal system is supposed to work is: You completely ignore a complaint, you earn a default judgment against you – You basically lose by default. You are implicitly acknowledging the plaintiff has a case and you can’t answer the complaint because you have no excuse. You are admitting guilt by default.

The way the judge let the defendants miss important deadlines by MONTHS while requesting incredibly difficult hoops for Holloway to jump through appears to be reminiscent of a courtroom prior to the Civil Rights Act of 1963. Incredibly the court informed Holloway that he could not bring anyone with him to the first hearing held by the court. He was bothered by this because he felt as if he was walking into an ambush – which turned out to be exactly the case. Upon entering the Courtroom, there seated in a chair was a Star Ledger reporter with alleged ties to the defendants in Trenton. Obviously violating the order that no one unconnected to the case be present , why didn’t the Judge demand the removal of the reporter as Chief Holloway was not permitted to bring to his own to guarantee that all sides would be made public?

The Judge then denied Holloway’s motions for default judgments against the defendants who had so cavalierly disregarded court-ordered deadlines. It appeared that in matters routine and consequential, the bare minimum standards of court rules for the defendants were sloppily applied – if at all. Not only did the court allow the defendants to miss deadlines for months, they allowed those defendants who had answered the complaint to ALSO jump onto other defendants motion to dismiss, which the court took a FULL NINE MONTHS to consider. At the same time, the State and County defendants disingenuously claimed that they didn’t know what the tribe wanted and that the tribe failed to state a claim upon which relief could be granted, the defendants were able to write detailed motions to dismiss in which they specifically countered each and every claim made by the tribe, which at that time did not have an attorney.

By the time that the defendants filed their motions to dismiss, the tribe had retained legal Counsel. Their attorney wrote the opposition to the motions. The tribe’s attorney, in the tribe’s opposition to the motions, was able to successfully counter each argument made by the defendants. In addition, their attorney was able to add legal language that addressed some grave injustices that were mentioned in the complaint. Judge Hayden states in her decision that she relied solely upon what the untrained plaintiffs wrote in the complaint and did not consider the more accurate arguments made by their attorney in the opposition. (Remember, it took Judge Hayden 9 months to arrive at this decision, and she had a lot of help from the State defendants, the Indian Commission, and a lone self-proclaimed “Sand Hill” Indian named Clare Garland). The Judge had more than enough time to consider the newly introduced opposition to the motions that was submitted by the Tribe’s Attorney. The Judge chose to ignore it.

According to the rumor mill, representatives from the U.S. came into New Jersey to conduct an investigation in an effort to “do away with” this case, and allegedly Judge Hayden and Judge Schwartz were working closely with them. Meanwhile, State officials and members of the Indian Commission were establishing a close relationship with Ms. Claire Garland, a lone “Sand Hill” Indian who claimed that Mr. Holloway and other members of the tribe were fake and not really members of the original Richardson-Revey Sand Hill family. In actuality, more than 70% of the current membership of Holloway’s tribe are direct descendants of the Richardson-Revey family, making Garland’s argument absurd and the 70% of the family members belonging to the tribe that has filed this lawsuit mighty unhappy with her.

Apparently, the State of New Jersey had decided it was in their best interest to place a representative of the Sand Hill Indians on the Indian Commission (after all, the Sand Hill tribe is the oldest tribe in the State of New Jersey and the only legitimate descendants of the Lenape Indians of New Jersey). Ms. Garland was allegedly promised a seat on the Indian Commission pending the outcome of this case, even though she is NOT a member of the Sand Hill tribe. Being that she is not a member of the tribe, how can she be appointed as a representative of that tribe?

After some pressure from the tribe asking for a ruling on the motion, Judge Hayden (in what seems to have been a final desperate effort to get rid of the case) silently permitted Ms. Garland to file a single letter with the court in which she states that Mr. Holloway is not a legitimate Sand Hill Indian. In the letter to the court, Garland accuses him of trying to steal the Sand Hill history. Remember: Mr. Holloway, who is a legitimate member of the tribe and an officer is just acting as a representative for the Sand Hill Indians (the plaintiffs) who will ultimately benefit from a favorable decision in this case, including the 70% of the tribe’s members are who are directly/indirectly related to Ms. Garland.

Judge Hayden used her judicial discretion (over the clearly stated federal rules) and strongly considered this letter submitted by a supposedly anonymous individual, who herself was not required to prove her own ancestry to the Sand Hill Indians. The federal rules require a nonparty individual to file a formal motion and to make some kind of official appearance to the Judge explaining who she is. Then the Sand Hill Indians should have gotten a chance to respond to these allegations. This was NEVER done.

Judge Hayden just quietly let this letter be filed and did not say anything, then she blasted the tribe in her final decision, saying they were not a legitimate tribe and relying solely on what Ms. Garland said without any discovery or cross examination.

Consequently, the entire second amended complaint was dismissed. However, for whatever reason, at the very end of the decision, Judge Hayden again used her judicial discretion in a strange and bizarre twist. It stated that the tribe would be allowed to file a third amended complaint.  Strange, considering she just obliterated the second amended complaint – leaving nothing left to amend.

It took nine months for the Judge to do the above. Meanwhile the tribe’s attorney twice filed motions to amend the complaint based on new information showing that the Treaty of Easton was a fraud, because the British didn’t even negotiate the treaty with the New Jersey Lenape Indians.  In fact, the New Jersey Lenape Indians did not even attend the negotiations.

The first motion (filed in November 2009) was immediately terminated by Judge Schwartz, who used her discretionary power to squash the motion to amend until after the motion to dismiss was decided. The tribe continued to wait several more months but did not stop their investigation and gathering of evidence, much to what would turn out to be the chagrin of the courts. During the course of the nine month hiatus that the court gave to the Tribe, the tribe came across the documentation that the State of New York swindled the Lenape Indians out of what is now called Manhattan in exchange for a copper kettle and some beads; as well as the State of Pennsylvania having swindled the Lenape Indians out of land now called Bucks County by tricking them into a fraudulent agreement.

Once again, during the nine month hiatus, the tribe’s attorney filed a motion to amend the complaint so they could add these new parties (NY and PA). Judge Schwartz had twice before Ordered that the tribe would be allowed to amend in order to join additional parties, but decided again to use her discretion and terminated this motion. Judge Hayden knew that what Judge Schwartz did was wrong, so she left a tiny door open for the tribe to file a third amended complaint. But, there were a few conditions. . . .

Judge Schwartz then issued an Order of explanation on 7/1/10 in which she says that the tribe can file a third amended complaint, but they cannot use any of the federal or state claims that they initially used (i.e. Non-Intercourse Act, Title VI, 14th Amendment, etc.) and they could not just state new facts without coming up with some different law to support the facts. In addition, the tribe could not use any State law claims because the court decided it would not bother looking at them. Judge Schwartz also said that the defendants would have the option to file one big joint motion to dismiss or file separate Answers denying everything. These conditions were made because it seemed like the tribe had exhausted every possible federal claim that had ever been made by any other Indian tribe throughout legal history. The Court thought it had the plaintiffs up against the wall with nowhere to turn by denying them the ability to use the evidence that they had spent years acquiring.

The tribe’s attorney who had never experienced this type of arrangement before, wrote a letter to the court asking for clarification on the 7/1/10 Order. To further restrict the plaintiffs’ rights, Judge Schwartz clarified her decision and took the opportunity to add that if the tribe filed a third amended complaint, they were essentially agreeing not to appeal the second amended complaint. This tactic would ensure that the tribe would be denied their right to appeal to the third circuit court.

According to the underground rumor mill, the third circuit court of appeals did not want to have anything to do with this unfair decision and the district court judges had to force this deal upon the tribe to keep it from going to the third circuit.  Ironically, this is similar to what happened to the tribe’s ancestors, who were forced to take reservation land that they did not ask for- meaning- it’s non-negotiable. Even more confusing was the fact that both Judge Schwartz and Judge Hayden said (in different Orders) that the tribe’s attorney had voluntarily dismissed all of the counties in her opposition to the massive motion to dismiss. The tribe’s attorney attempted to rectify the matter long before the final decision was made on 6/30/10. The Judge refused to consider any explanation from the tribe’s attorney and Judge Hayden ruled that the voluntary dismissal was final. This is in spite of the rules that say that a voluntary dismissal is not final until after the plaintiffs’ attorney signs an affidavit and gets all of the defendants to sign it and they all agree that this decision is final. This was not done.

When the tribe’s attorney filed the third amended complaint based upon different and unexplored federal and international law that had not previously been raised in the second amended complaint (not an easy task), she only named the States (NJ, NY, PA) and also added the United States as the defendants. She believed that the voluntary dismissal was separate and apart from the court’s order of 6/30/10, which dismissed every claim based on federal law. (This keeps getting more and more confusing and complicated, but hang in there).

At the same time, the tribe’s attorney filed a motion to reinstate the second amended complaint against the county defendants because this seemed to be the only way to undo the voluntary dismissal and, according to the court rules, the voluntary dismissal was not final anyway. As it turns out, she could have added the counties onto the third amended complaint and filing this motion to reinstate just confused matters further. Ultimately, the tribe’s attorney did withdraw the motion to reinstate and advised the court that she would seek to amend a fourth time in order to add the counties, which she is permitted to do under the court rules. Of course, Judge Schwartz is hinting that this should have been done in the first place and the tribe’s attorney might have to come up with a darn good explanation as to why she did not just add the counties onto the third amended complaint in the first place (see above for reason why – they weren’t allowed to use anything from previous motions). In the third amended complaint, the tribe alleged that the 3 states and the United States had entered into fraudulent treaties with the Lenape Indians (or in some cases no treaty was ever signed) because the Lenape Indians did not understand what was going on and they were cheated out of thousands and thousands of acres of land in exchange for some booze, trinkets, beads, and some supplies.

As it turns out, there is an international law that says all treaties are governed by international law, and according to U.S. federal law, all groups of Indians were treated as sovereign nations. Therefore agreements made with Indians are treaties and not contracts. Also, according to international law, if a treaty is entered into fraudulently, it is considered to be null and void.

Under the U.S. Supremacy Clause, a federal court can review a claim regarding the violation of a treaty, and it does not have to be filed with the World Court in the Netherlands. Therefore, the judges seem to have jurisdiction over these matters, which they don’t allegedly want to exercise. The Sand Hills are using an entirely different approach than what was addressed in the second amended complaint and the defendants have to come up with a whole new strategy to try and get the third amended complaint dismissed. If the tribe can’t rely on the same federal law claims it made before, the defendants can’t either . . . or can they????? Hopefully it won’t be another nine months.

As of this writing, each State defendant has already filed their motion to dismiss. The U.S. has not yet filed its response as of the writing of this diary.

The tribe has until 9/7/10 to file oppositions, then the states get another crack at it and they can submit a reply. Anyway, the whole thing is supposed to be decided by the Court on 9/20/10. The tribe filed a motion to enter default judgment against the U.S. since they did not comply with the court’s 7-1-10 Order and they missed the deadline.

The tribe’s attorney also filed a motion asking both Judge Shwartz and Judge Hayden to recuse (disqualify) themselves from this case since neither one of them can seem to maintain an unbiased, fair, and just position in their rulings. That motion was supposed to be decided on August 16, 2010. The tribe is still waiting . . . . and will probably continue to wait because, like this entire case, the complaint of bias has MERIT.

After 400 years, the tribe is STILL waiting for justice. Outside the Court in Newark is a large statue of blind justice. Inside, however, there appear to be a couple of blind judges. Blind to truth, justice, decency, historical evidence, and the rights of all plaintiffs to Equal Protection under the law. Let’s see what happens next. They can’t continue this way. International law is on the Tribe’s side on this one. The more the judges stall the case, the bigger it gets. It is now literally epic in scope. It is now the largest land case ever brought by a Native American tribe against the United States. Before it gets bigger, these two judges should recuse themselves from this case, because it is dubious that they can actually explain how on earth their actions and rulings can in any sense be called impartial.

It might behoove the United States to come to the negotiation table and remove this from the courts, because nine more months granted by this the Federal Court in Newark, will enable the Sand Hill to find even more concrete iron-clad evidence to add to their case and hand two Judges in Newark even more rope to entangle themselves in.

Sand Hill Lawsuit – Legal Timeline

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Following is the legal timeline regarding the lawsuit of the oldest indigenous Native American tribe still found in New Jersey – the NJ Sand Hill Band of Lenape and Cherokee Indians vs. the State of New Jersey.  The Tribe has appealed to the UN to try this case in the World Court.  The territory involved now includes Manhattan, Delaware, and Pennsylvania as well as New Jersey.

Legal documents discussed in the timeline can be found here.

February 17, 2009 – The NJ Sand Hill Band of Lenape and Cherokee Indians files the first Complaint in a lawsuit against the State of NJ for genocide, treaty violations, and civil rights violations. #2:09-cv-683. The initial filing was for a three judge court in Philadelphia.

March 25, 2009 and April 7, 2009 – Judge Patty Schwartz in Federal District Court in Newark issued scheduling orders to meet on April 21, 2009 about a discovery plan prior to a Rule 16 conference.

April 21, 2009, Imagine Chief Holloway’s surprise when he walked into Courtroom No 10 on April 21 into what WAS a Rule 16 hearing. Not only that, but all the defendants were told to bring counsel. Not all of them did. The State Attorney General was actually permitted to argue even though the State of NJ had not even answered the complaint yet.

Chief Holloway was not permitted to bring anyone into the Court room with him for this meeting that actually turned into a Rule 16 hearing. The defendants brought in a reporter from the Star Ledger who is friendly with Trenton, after which a story dismissive of Chief Holloway’s case was published. Believe me, if I was allowed in – I would have been there. But the Plaintiff was specifically instructed by the court not to bring anyone with him. Why exactly?

April 23, 2009 The Court orders the Sand Hill to retain legal counsel and will not permit Chief Holloway to represent his own tribe. The court only gives Chief Holloway 2 weeks to comply and retain an attorney and just two weeks after that to file their complaint.

“It is further ordered that no discovery may take place unless the motion to dismiss is denied and until the Court enters a scheduling order”

“No further amendments will be permitted, except to permit the petitioners to ask to join additional parties.”

Italics mine.

May 8 – Deadline given to Sand Hill tribe to retain an attorney in the April 23 Court Order.

May 22 – Deadline given to Sand Hill for their newly retained attorney (if they are able to somehow quickly procure one) to file their complete complaint as ordered by the court on April 23.

Chief Holloway was asked to do the near impossible – retain an attorney and have the entire complaint submitted in mere DAYS, (which he did.) In contrast, the Court allowed defendants who did not answer the complaint in a timely way or at all, until June 26 to file a motion to dismiss. Some were given until July 2, 2009. Monmouth County was given till OCTOBER. Chief Holloway requested default judgments against the defendants who had not bothered to even answer the complaint, but the judge denied the request.

June 26 – Deadline for the Defendants to file motion to dismiss.

July 2 – Deadline for the defendants to jump onto the Motion to dismiss.

July 20, 2009 – Deadline for Chief Holloway to file opposition to the motion to dismiss.

August 3, 2009 – New Court date scheduled – never happened. Oral arguments were NOT granted although both sides requested them.

October 2009 – Monmouth County FINALLY answers the complaint. The Judge lets them join the motion to dismiss.

The rub for the court is that if the motion to dismiss is denied, the case can go to discovery where Chief Holloway will finally be permitted to prove his ancestry, which he was prepared to do when he filed the lawsuit. Consequently, the Judge is put in a Catch 22. Deny the claim to avoid discovery, have it appealed and moved to Philadelphia, where discovery would happen anyway, or deny the motion to dismiss, and allow the trial to go to discovery which would allow the Sand Hills to get a fair and impartial hearing which allegedly would ruin a promising law career with the political power brokers in Trenton.

What to do, what to do…. What would save a Judge from a dilemma like this? Well, to never, ever, rule on the motion to dismiss, or to simply take early retirement. Which allegedly appears to be the fork taken here. Allegedly Judge Hayden took early retirement leaving the case to Judge Patty Schwartz who does not appear as if she will ever rule on that motion to dismiss. It appears the court is trying to avoid discovery.

However, despite the glacial approach to the motion to dismiss, it took Judge Schwartz less than 24 HOURS to dismiss the third amended complaint which was amended to add parties to the lawsuit – the very thing allowed, according to the court order of April 23, 2009. It also appears that Judge Hayden and Judge Schwartz had ex parte verbal requests from defendants’ counsel and issued Orders as if the docket had actually been reviewed.

And so to recap – the original motion to dismiss was filed by the defendants at the Rule 16 hearing, even though there was not supposed to be ANY motions filed that day. Chief Holloway then filed opposition in time, even though he surprised the court by doing so. Most of the defendants had replied by August when they were supposed to have replied by June 26.

November 23, 2010 – The court orders no more motions until a “conference” takes place. That conference still has not happened as of this writing.

January, 2010, MONTHS later, Sand Hill Counsel asked WHEN the court would finally rule on the motion to dismiss and was told the court was in no particular hurry to ever schedule it.

June 4, 2010 – The Sand Hill legal counsel filed a complaint with the Third District Court of Appeals in Philadelphia regarding what appears to be violations of the Judicial Misconduct Act Section 3(h)(1), and 3(h)(3)(B).

June 16, 2010 – the Sand Hill file the Third Amended Complaint that adds parties to the lawsuit – which is specifically allowed by the Court Order of April 23, 2009. New York, Delaware and Pennsylvania are now involved in addition to New Jersey.

June 16, 2010 Assistant Essex County Counsel arrogantly requests that the 3rd Amended Complaint is dismissed and tells Judge Patty Schwartz about using sanctions against the Sand Hill for having the temerity to file an amended complaint which was actually allowed under the April 23 Court Order.

June 17, 2010 ONE DAY after the 3rd amended complaint is filed that joins other parties to the lawsuit, the Judge DENIES the 3rd Amended complaint without prejudice. She basically punts so that the Sand Hill can bring it up again later, and she doesn’t have to deal with it now. She has effectively “tabled” it.

June 17, 2010, Sand Hill legal Counsel Arleen Richards requests that the Judge deny Essex County’s request to strike the 3rd Amended Complaint as an improper request because the April 23, 2009 court order allows it.

June 22, 2010 – Based on the Court’s summary denial of the 3rd Amended Complaint before the “ink was even dry”, and the appearance of purposely avoiding discovery for months by not ruling on the motion to dismiss, the Sand Hill have formally requested of the UN Special Rappateur that the case go to the World Court.

The case at this moment has not been dismissed and the motion to dismiss has not been denied. Which is why the Tribe has appealed to the UN for a genocide case that allegedly appears to be stalled purposely, where there allegedly appears to be a double standard for how the defendants and the plaintiffs are treated by the Federal District Court in Newark.

The reason why the motion to dismiss is such a problem for the defendants is that they are basing their argument on state law, whereas any case involving Native Americans is clearly FEDERAL in nature. The defendants have no legal basis for their motion to dismiss because the motion to dismiss is based on NJ law. The plaintiff argues that the complaint is a violation of the Non-Intercourse Act which is written and enforced by CONGRESS. The Judge has also failed to issue an order regarding the request for a declaratory judgment that would declare once and for all if FEDERAL law applies or STATE law.

The interesting thing is, the UN has the documentation, and evidence, and has already done investigations of its own validating his claims BEFORE meeting with Chief Holloway. In stark contrast, the Federal government has NO IDEA what evidence the Sand Hill tribe has, because the action of one Judge in Newark is preventing discovery. The Federal government is at a clear disadvantage should this go to the World Court.

Sand Hill Indians now Claim Manhattan

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On February 17, 2009, the oldest indigenous Native American tribe in NJ filed a lawsuit against the State of NJ, Governor Corzine, and his Administration, as well as the NJ Commission on American Indian Affairs. That lawsuit is still in Federal Court at this moment and has NOT been dismissed.

In fact, the scope of the case has expanded exponentially.  As of a new filing on June 16, 2010, the territory now includes the Island of Manhattan & Hudson areas, the State of Delaware and Eastern Pennsylvania as well as New Jersey.

The NJ Sand Hill Band of Lenape & Cherokee Indians (the Sand Hill) headed by Chief Yonaguska Holloway has appealed to the UN for assistance.  The UN is now representing the tribe and the case may actually move to The Hague if the tribe does not get justice through the American courts and through negotiations with the United States.

Judge Hayden, the Federal Judge who allegedly has been stalling this trial since last year, has taken early retirement, although no one involved in the case has been formally notified.

It’s rumored that the Federal government has finally stepped in, but they have not reached out directly to Chief Holloway.  As the Federal government appears to drag their feet and avoid the inevitable negotiating table, the stakes are getting bigger.

The Sand Hill are using this time to gather the evidence they need to make their case that much more ironclad.  Just over the past few months they have gathered more evidence of their claim not only to NJ but Manhattan, Delaware, and Eastern PA.

What began as a lawsuit in one state is morphing into the largest land claim ever made by Native Americans and is precedent-setting for the rest of the Indian Nations.  The problem confronting the Federal Government appears to be their inability to figure out how to even begin approaching this matter with the Sand Hills.

The ridiculousness of the situation is that a simple sit-down with President Obama over iced tea and pizza could go a long way towards resolving what is turning into a territorial crisis for the United States.

The Sand Hill are a patient and reasonable people, but everyone has a limit.  Justice delayed is justice denied, and as their rights have been trampled ever since they reached out a hand to Henry Hudson 400 year ago, their patience is now wearing thin.

It appears that the sheer magnitude of the situation is preventing any progress at all.  But like any other overwhelming problem, resolutions often begin with a simple conversation.

So far, only one NJ Congressman’s office (Congressman Steve Rothman) has had the foresight to contact representatives of the Sand Hill after Chief Holloway’s speech at the United Nations.  On three separate occasions thereafter, the Sand Hill Government Liaison contacted Rothman’s office.  The last time was to notify the Congressman of the latest filing and to request a meeting with him.   As of this writing there has been no acknowledgement of receiving either the motion or the request.

It might behoove the Congressman, as this is an election year, to get ahead of the situation, and score a political coup by meeting with Chief Holloway as a first step towards getting the Federal Government to the table without pressure from the United Nations.

I am seriously advising my elected officials to meet with Chief Holloway while his hand is still outstretched.  I have interviewed Chief Holloway about this many times over the past two years.  He has always been and still is willing to discuss this matter with the appropriate Federal officials in order to reach a reasonable conclusion.