[House Report 111-103]
[From the U.S. Government Publishing Office]
111th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 111-103
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LUMBEE RECOGNITION ACT
_______
May 12, 2009.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Rahall, from the Committee on Natural Resources, submitted the
following
R E P O R T
together with
ADDITIONAL AND DISSENTING VIEWS
[To accompany H.R. 31]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred the
bill (H.R. 31) to provide for the recognition of the Lumbee
Tribe of North Carolina, and for other purposes, having
considered the same, report favorably thereon with an amendment
and recommend that the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Lumbee Recognition Act''.
SEC. 2. PREAMBLE.
The preamble to the Act of June 7, 1956 (70 Stat. 254), is amended as
follows:
(1) By striking ``and'' at the end of each clause.
(2) By striking ``: Now, therefore,'' at the end of the last
clause and inserting a semicolon.
(3) By adding at the end the following new clauses:
``Whereas the Lumbee Indians of Robeson and adjoining counties in North
Carolina are descendants of coastal North Carolina Indian tribes,
principally Cheraw, and have remained a distinct Indian community since the
time of contact with white settlers;
``Whereas since 1885 the State of North Carolina has recognized the Lumbee
Indians as an Indian tribe;
``Whereas in 1956 the Congress of the United States acknowledged the Lumbee
Indians as an Indian tribe, but withheld from the Lumbee Tribe the
benefits, privileges and immunities to which the Tribe and its members
otherwise would have been entitled by virtue of the Tribe's status as a
federally recognized tribe; and
``Whereas the Congress finds that the Lumbee Indians should now be entitled
to full Federal recognition of their status as an Indian tribe and that the
benefits, privileges and immunities that accompany such status should be
accorded to the Lumbee Tribe: Now, therefore,''.
SEC. 3. FEDERAL RECOGNITION.
The Act of June 7, 1956 (70 Stat. 254), is amended as follows:
(1) By striking the last sentence of the first section.
(2) By striking section 2 and inserting the following new
sections:
``Sec. 2. (a) Federal recognition is hereby extended to the Lumbee
Tribe of North Carolina, as designated as petitioner number 65 by the
Office of Federal Acknowledgement. All laws and regulations of the
United States of general application to Indians and Indian tribes shall
apply to the Lumbee Tribe of North Carolina and its members.
``(b) Notwithstanding the first section, any group of Indians in
Robeson and adjoining counties, North Carolina, whose members are not
enrolled in the Lumbee Tribe of North Carolina as determined under
section 3(c), may petition under part 83 of title 25 of the Code of
Federal Regulations for acknowledgement of tribal existence.
``Sec. 3. (a) The Lumbee Tribe of North Carolina and its members
shall be eligible for all services and benefits provided to Indians
because of their status as members of a federally recognized tribe. For
the purposes of the delivery of such services, those members of the
Tribe residing in Robeson, Cumberland, Hoke, and Scotland counties in
North Carolina shall be deemed to be residing on or near an Indian
reservation.
``(b) Upon verification by the Secretary of the Interior of a tribal
roll under subsection (c), the Secretary of the Interior and the
Secretary of Health and Human Services shall develop, in consultation
with the Lumbee Tribe of North Carolina, a determination of needs to
provide the services to which members of the Tribe are eligible. The
Secretary of the Interior and the Secretary of Health and Human
Services shall each submit a written statement of such needs to
Congress after the tribal roll is verified.
``(c) For purposes of the delivery of Federal services, the tribal
roll in effect on the date of the enactment of this section shall,
subject to verification by the Secretary of the Interior, define the
service population of the Tribe. The Secretary's verification shall be
limited to confirming compliance with the membership criteria set out
in the Tribe's constitution adopted on November 16, 2001, which
verification shall be completed within 2 years after the date of the
enactment of this section.
``Sec. 4. (a) The Secretary may take land into trust for the Lumbee
Tribe pursuant to this Act. An application to take land located within
Robeson County, North Carolina, into trust under this section shall be
treated by the Secretary as an `on reservation' trust acquisition under
part 151 of title 25, Code of Federal Regulation (or a successor
regulation).
``(b) The tribe may not conduct gaming activities as a matter of
claimed inherent authority or under the authority of any Federal law,
including the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.) or
under any regulations thereunder promulgated by the Secretary or the
National Indian Gaming Commission.
``Sec. 5. (a) The State of North Carolina shall exercise jurisdiction
over--
``(1) all criminal offenses that are committed on; and
``(2) all civil actions that arise on, lands located within
the State of North Carolina that are owned by, or held in trust
by the United States for, the Lumbee Tribe of North Carolina,
or any dependent Indian community of the Lumbee Tribe of North
Carolina.
``(b) The Secretary of the Interior is authorized to accept on behalf
of the United States, after consulting with the Attorney General of the
United States, any transfer by the State of North Carolina to the
United States of any portion of the jurisdiction of the State of North
Carolina described in subsection (a) pursuant to an agreement between
the Lumbee Tribe and the State of North Carolina. Such transfer of
jurisdiction may not take effect until 2 years after the effective date
of the agreement.
``(c) The provisions of this section shall not affect the application
of section 109 of the Indian Child Welfare Act of 1978 (25 U.S.C.
1919).
``Sec. 6. There are authorized to be appropriated such sums as are
necessary to carry out this Act.''.
Purpose of the Bill
The purpose of H.R. 31 is to provide for the recognition of
the Lumbee Tribe of North Carolina, and for other purposes.
Background and Need for Legislation
The ancestors of the Lumbee were mainly Cheraw and related
Siouan-speaking Indians who have, since the 1700s, lived in the
area of what is now Robeson County, North Carolina. While they
have been referred to under many different names, the Lumbee
take their name from the river known as Lumbee River to the
tribe and Lumber River to others. This river flows through
Robeson County.
The issue of the status of the Lumbee Tribe of North
Carolina comes to the Committee with a voluminous congressional
and administrative record. The beginning of the Lumbee Tribe's
struggle for federal recognition dates back over 100 years to
1888, when 44 tribal leaders signed a petition seeking federal
assistance for their people and more specifically for funding
the tribe's schools. After Congress referred the petition to
the Department of the Interior, the Commissioner of Indian
Affairs ultimately denied the tribe's request, claiming the
agency had insufficient resources. The Commissioner of Indian
Affairs responded in 1890 as follows: ``While I regret
exceedingly that the provisions made by the State of North
Carolina are entirely inadequate, I find it quite impractical
to render any assistance at this time. So long as the immediate
wards of the Government are so insufficiently provided for, I
do not see how I can consistently render any assistance to the
Croatans, or any other civilized tribes.''
Beginning in 1899, numerous bills have been introduced in
Congress to recognize the tribe.\1\ Hearings were held and
reports filed on several of these bills.\2\ In addition,
Congress requested and obtained several reports from the
Department of the Interior on the tribe's history and
status.\3\ These hearings and studies consistently concluded
that the Lumbees were a distinct, self-governing Indian
community, descended from Siouan speaking tribes, principally
the Cheraw. The various bills to recognize the tribe failed
generally due to the opposition of the Department of the
Interior. The Department's opposition was typically based on
either the cost of providing services to the Lumbee, or the
fact that recognition ran counter to the prevailing federal
Indian policy, but not on questions related to the tribe's
Indian ancestry or tribal governmental status. For example, the
1956 Lumbee Act was passed during a period of federal Indian
policy known as the Termination Era, during which Congress
terminated its relationship with 109 Indian nations.
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\1\See H.R. 4009, 56th Cong., 1st Sess.; H.R. 19036, 61st Cong., 2d
Sess.; S. 3258, 62d Cong., 1st Sess.; [House companion H.R. 20728];
H.R. 8083, 68th Cong., 1st Sess.; S. 4595, 72d Cong., 2d Sess.; H.R.
5365, 73d Cong., 1st Sess. [Senate companion S. 1632]; H.R. 4656, 84th
Cong., 1st Sess.; H.R. 5042, 100th Cong., 1st Sess. [Senate companion
S. 2672]; H.R. 2335, 101st Cong., 1st Sess. [Senate companion S. 901];
H.R. 1426, 102d Cong., 1st Sess. [Senate companion S. 1036]; H.R. 334,
103d Cong., 1st Sess; S. 420, 108th Cong., 1st Sess. [House companion
H.R. 898]; S. 660, 109th Cong., 1st Sess.
\2\See Hearing before the Senate Committee on Indian Affairs on S.
3258, 62d Cong., 2d Sess., April 4, 1912; Hearing before the Committee
on Indian Affairs, House of Representatives, on S. 3258, Feb. 14, 1913;
H. Rep. No. 1752, 73d Cong., 2d Sess.; S. Rep. No. 204, 73d Cong., 2d
Sess.; H. Rep. No. 1654, 84th Cong., 2d Sess.; S. Rep. No. 84-2012,
84th Cong., 2d Sess.; S. Rep. No. 100-579, 100th Cong., 2d Sess.; H.
Rep. No. 102-215, 102d Cong., 1st Sess.; H. Rep. No. 103-290, 103d
Cong., 1st Sess.; S. Rep. No. 108-213, 108th Cong., 1st Sess.; S. Rep.
No. 109-334, 109th Cong., 2d Sess.; and H. Rep. No. 110-164, 110th
Cong., 1st. Sess.
\3\See Indian School Supervisor Pierce Report, filed with the
Senate on April 4, 1912; Special Indian Agent McPherson report, Doc.
No. 677, 53d Cong., 2d Sess., prepared in 1914; Report of J.R. Swanton,
Smithsonian Institution, at request of Bureau of Indian Affairs and
submitted to Congress at the 1933 hearing; and Fred A. Baker Report on
the Siouan Tribe of Indians of Robeson County, July 9, 1935.
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Lumbee ancestry
The evidence establishes that the tribe descends from the
historic Cheraw and related Siouan-speaking tribes.
Historically, the Cheraw were located on Drowning Creek in
North Carolina. Drowning Creek was renamed the Lumber River by
the State of North Carolina in 1809. The ancestors of the
modern day Lumbee Tribe have been located on and around
Drowning Creek/Lumber River ever since the first contact with
Europeans in the early 1700s. Modern day Lumbee Indians share
the same distinctive surnames as families linked historically
to the known Cheraw territory, e.g. Locklear, Chavis, Grooms
and others.
Because of the precarious position of Indians in the early
1800s due to the removal of many tribes to Oklahoma, the
Indians of Robeson County hid their Indian identity. However,
incidents during and after the Civil War showed much activity
in the Indian community, including recognition by local
governmental authorities of this community as an Indian
community.
Congress' deliberations on the tribe's history produced
authoritative reports by the Department of the Interior. Eleven
studies done on the Lumbee Tribe by personnel from the Bureau
of Indian Affairs express no doubt that the ancestors of the
modern day Lumbee Tribe were Indian. For example, in 1914,
Special Indian Agent O.M. McPherson, sent to investigate the
history and condition of the tribe, concluded that the tribe
was descended from the Cheraw Tribe. Further, in 1934 the
Department expressed to Congress, based upon a report by the
eminent John R. Swanton of the Bureau of Ethnology, that the
Lumbees descend from the Cheraw and related Siouan speaking
tribes of coastal North Carolina. This conclusion has since
been corroborated by leading historians in the field, including
Dr. William Sturtevant, editor in chief of the Smithsonian
Institution's Handbook of North American Indians and Dr. James
Merrell, professor of colonial history at Vassar College. Dr.
Jack Campisi, the tribe's ethnohistorian who testified before
the Committee, also confirmed the Cheraw origins of the Lumbee.
Lumbee school
In 1885, the State of North Carolina recognized the tribe
and established a separate school system for Lumbee children,
run by the tribe itself. Enrollment in the school was
restricted to Lumbee children who could demonstrate Lumbee
descent four generations back, or into the 1770s. Lumbee tribal
leaders were authorized to determine eligibility to enroll in
the school. These enrollment records, along with federal census
records, form the base roll from which all present day tribal
members must demonstrate descent. On March 26, 1913, State
Attorney General Bickett issued an opinion that the county
board of education could overrule tribal decisions in the
Lumbee schools. Lumbee tribal leaders objected to this
infringement on their independence. Under pressure from the
Lumbee leadership, the State of North Carolina enacted
legislation subsequently setting aside the Attorney General's
opinion. The Indian Normal School established by the State in
1888 to train Lumbee teachers for the Tribe's school system has
been in continuous operation and is today the University of
North Carolina at Pembroke.
State recognition and name changes
In its recognition acts, the State of North Carolina
imposed various names on the Tribe, based on the
representations of local historians and members of the
legislature regarding the tribe's history. These included
Croatan [1885 to 1911], Indians of Robeson County [1911 to
1913], Cherokee Indians of Robeson County [1913-1953], and
finally Lumbee Indians [1953 to present]. In the early 1950s,
the tribe became dissatisfied with its name under state law.
Under pressure from the tribe, the state authorized the tribe
to conduct a referendum on its name. In 1951, by a margin of
2,169 to 35, the Robeson County Indians voted to adopt the name
``Lumbee Indians of North Carolina.'' The General Assembly of
North Carolina passed a bill in 1953 designating them as
``Lumbee Indians of North Carolina'' and the State continues to
recognize the Tribe by this name. This was the only opportunity
the tribe had to name itself rather than have a name foisted
upon them by the state.
Senate Resolution 344 (1914)
This resolution called for an investigation into the status
and conditions of the Indians of Robeson County and adjoining
counties. As a result, Special Indian Agent O.M. McPherson
visited Robeson County and afterwards issued a 252-page report
which covered all aspects of the tribe's history and condition
and confirmed the tribal characteristics of the Lumbee Indians.
Furthermore, he declared that they were eligible to attend the
federal Indian schools. Congress, however, failed to take
action on the McPherson report.
Lumbee Act 1956
As it had in the past, the tribe in 1955 sought federal
recognition based on the recently amended state law. Again, the
Department of the Interior opposed the bill and recommended
that Congress amend the bill by denying eligibility for the
benefits and services available to Indians because of their
status as Indians, consistent with the then-prevailing federal
Indian policy of termination. This amended bill was enacted by
Congress in 1956 (Pub. L. 84-570, Act of June 7, 1956, 70 Stat.
254). Thus, Congress simultaneously acknowledged the Lumbee
Indians but effectively terminated the tribe by denying them
federal Indian services and benefits.
1968 Tiwa Act (82 Stat. 93)
The 1956 Lumbee Act was a model for the Tiwa Act of 1968
and served nearly the same purpose in that it recognized the
Tiwa as Indians but terminated any federal trust relationship
with the tribe. Yet in 1987, Congress enacted the Ysleta del
Sur Pueblo Restoration Act that restored the federal trust
relationship and extended full federal recognition to the
Ysleta del Sur Pueblo of Texas, previously known as the Texas
Tiwa. This restoration Act acknowledged that the 1968 Tiwa Act
had recognized the Tiwa (S. Rep. 100-90, 100th Cong., 1st
sess.) and therefore many argue, its model--the 1956 Lumbee
Act--must have recognized the Lumbee and that it is in the
hands of Congress to restore the federal relationship with the
Lumbee.
Federal acknowledgment process
Pursuant to the Department of the Interior's regulations,
the Lumbee Tribe prepared an extensive petition for federal
acknowledgment. The petition was submitted by the tribe on
December 17, 1987. It consists of a two volume narrative
report, one and one-half file boxes of documentary evidence and
a 16 volume membership roll. There is a consistent historical
record of the presence of the Lumbees and of tribal activity,
but during certain periods the documentation is sporadic. Dr.
Jack Campisi, who is the principal author of the Lumbee
petition, explained that non-Indian settlement around the
Lumbee community occurred relatively late, circa 1830, so that
no literate individuals or organized governments were present
continuously before that time to record tribal activity. The
Committee has been advised that the tribe has exhausted all
research avenues and that the documentation before the
Committee and the Department of the Interior is all that
exists. In the end, the Department of the Interior informed the
tribe that it was ineligible to participate in the Federal
Acknowledgment Process because Congress has terminated its
relationship with the tribe, therefore, only Congress could
restore the relationship.
Problems with the Federal acknowledgment process
It is also noteworthy that the administrative
acknowledgment process has been criticized by the Congress and
tribes. This Committee has conducted many oversight hearings on
the administrative process and found it to be expensive,
inordinately lengthy and too heavily dependent upon formal
documents on Indian tribes even though such documents do not
exist or were not generated due to a variety of historic
circumstances. Given the nature of the process, it is
conceivable that a legitimate Indian tribe could be denied
recognition administratively for reasons beyond its control if
it could not produce the degree and detail of documentation
required by the Department. The Committee believes that the
Lumbee Tribe is such a tribe.
Congressional authority
It is clear that in some cases, recognition of an Indian
tribe is a matter that should be left for the Congress to
address. Congress plainly has the constitutional authority to
recognize Indian tribes. In fact, the overwhelming majority of
federally recognized Indian tribes were recognized by Congress
either through treaty or statute. The present administrative
process was established under general authority delegated by
the Congress to the Department of the Interior, but there is no
specific statutory authority for the process. In other words,
the process is wholly administrative in origin. Obviously,
Congress is not bound by those regulations in determining
whether to recognize a particular Indian tribe. Especially
where the Department has so often analyzed a tribe in the past,
Congress can take those past departmental determinations and
the general view of anthropologists into account. The record
here is adequate for a congressional determination and the
circumstances support the appropriateness of recognition
legislation.
In United States v. Sandoval, 231 U.S. 28 (1913), the
Supreme Court has held that Congress' authority to recognize an
Indian tribe is limited to ``distinctly Indian communities.''
The eleven reports done on the Lumbee Tribe by the Bureau of
Indian Affairs and the congressional record of H.R. 31 all
establish that the Lumbee Tribe constitutes a distinct Indian
community.
Membership and governing structure
Native nations have the inherent authority to determine
their membership. In Santa Clara v. Martinez,\4\ the Supreme
Court stated, ``A tribe's right to define its own membership
for tribal purposes has long been recognized as central to its
existence as an independent political community.''
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\4\436 U.S. 49, 72 n. 32 (1978)
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Approximately 55,000 Lumbee Indians are enrolled in the
Lumbee Tribe. Eligibility for tribal enrollment is limited to
persons who were identified as Indian on source documents from
the early 1900s, including the 1900 and 1910 federal census,
the list of 44 individuals recognized by the State of North
Carolina as Croatan Indians, and those who signed an 1888
petition to Congress by which the Lumbee ancestors first sought
federal recognition. The Lumbee service population is
identified as those members residing in Robeson, Cumberland,
Hoke, and Scotland Counties, North Carolina. CBO estimated the
Lumbee service population at 39,700 members. The Lumbee tribal
membership rolls are now closed as their status is being
considered by Congress. This is common practice for tribes
seeking federal recognition, whether from Congress or from the
Department of the Interior under 25 CFR Part 83. Tribes
typically re-open their rolls after recognition to allow for
enrollment of newly born tribal citizens.
The Lumbee Indians have never had a reservation or received
services from the Bureau of Indian Affairs or the Indian Health
Service though they are eligible for and do receive funds from
other federal Indian programs because of their recognition by
the State of North Carolina. On November 21, 2001, the Lumbee
Tribe voted overwhelmingly to organize under a tribal
constitution. The constitution sets out the requirements for
tribal membership, including descent from an individual on a
base roll consisting of tribal members identified in federal
censuses, Indian school records, and other documents dated
around 1900. The constitution creates the Office of Tribal
Chairman, elected by all voting tribal members, and twenty-one
tribal council members, elected from districts within the
Lumbee communities.
In summary, the historical record is persuasive and
compelling that for the last 200 years the Lumbees have
functioned as an Indian tribe and have been recognized as such
by state and local authorities.
Gaming
The Lumbee Tribe agreed to a prohibition on gaming and has
repeatedly stated that they have no intention of pursuing
gaming at this time. Accordingly, the tribe is prohibited by
H.R. 31 from conducting, licensing, or regulating gaming
pursuant to any inherent authority they may possess, the Indian
Gaming Regulatory Act, or any other federal law.
Lumbee recognition legislation (100th-110th Congresses)
During the 100th Congress, companion bills to recognize the
Lumbee Tribe (H.R. 5042 and S. 2672) were introduced and
hearings were held on the bills. The Senate bill was reported
favorably out of the Senate Committee on Indian Affairs, but no
further action was taken on it. In the 102nd Congress, H.R.
1426 passed in the House with 240 yeas, 167 nays, but the
Senate failed to invoke cloture on debate and the bill died. In
the 103rd Congress, H.R. 334 passed the House but was never
acted on in the Senate. Rep. McIntyre introduced H.R. 898
during the 108th Congress and hearings were held on the bill
but no further actions were taken. Rep. McIntyre introduced
Lumbee recognition legislation (H.R. 21) once again during the
109th Congress but no major actions were taken. Rep McIntyre
yet again introduced H.R. 65 in the 110th Congress with a
companion bill, S. 333 introduced in the Senate. H.R. 65 passed
the house on June 6, 2007 with 256 yeas and 128 nays but the
Senate failed to act on either H.R. 65 or S. 333.
Committee Action
H.R. 31 was introduced by Rep. Mike McIntyre (D-NC) on
January 6, 2009. The bill was referred to the Committee on
Natural Resources and has 185 cosponsors. On March 18, 2009,
the Committee on Natural Resources held a hearing on H.R. 31.
The Committee received testimony from the Hon. Mike McIntyre
(D-NC); the Hon. Heath Shuler (D-NC); the Hon. Patrick McHenry
(R-NC); the Hon. Walter B. Jones (R-NC); Chairman James Ernest
Goins, Lumbee Tribe of North Carolina; Mr. Gerald Danforth; Ms.
Arlinda Locklear; and Mr. Michael Cook. Mr. George Skibine,
Acting Deputy Associate Secretary for Policy & Economic
Development, Department of the Interior, Bureau of Indian
Affairs, also testified on behalf of the Administration in
support of the bill.
On April 22, 2009, the Committee met to consider the bill.
Chairman Rahall (D-WV) offered an en bloc amendment to clarify
the right of the Secretary of the Interior to take land into
trust for the Lumbee Tribe and delete the requirement that the
Secretaries of the Interior and Health and Human Services
provide a budget to Congress to meet the needs of the Lumbee
Tribe. It was adopted by voice vote. The bill, as amended, was
then ordered favorably reported to the House of Representatives
by voice vote.
Section-by-Section Analysis
Section 1. Short title
Section 1 provides the short title of the bill as the
``Lumbee Recognition Act.''
Section 2. Preamble
Section 2 contains findings that the Lumbee Indians are
descendants of coastal North Carolina Indians; that the State
of North Carolina has recognized the Lumbees since 1885; that
Congress acknowledged the Lumbee Indians as an Indian tribe in
1956 but withheld the benefits, privileges and immunities that
normally extend to Indians because of their status as Indians;
and that Congress now finds that the full benefits, privileges,
and immunities should be extended to the Lumbee Tribe.
Section 3. Federal recognition
Section 3 deletes the prohibition in the 1956 Act of
eligibility for federal services and benefits and instead
extends federal recognition to the Lumbee Tribe of North
Carolina, as designated Petitioner Number 65 by the Office of
Federal Acknowledgment. All federal law and regulations of
general applicability to Indians and Indian tribes apply to the
Lumbee Tribe and its members. Section 3 also clarifies that any
Indians who are not enrolled in the Lumbee Tribe but reside in
Robeson and adjoining counties may continue through the Federal
Acknowledgment Process as a separate Indian petitioner.
All services and benefits provided to Indians because of
their status as Indians are extended to the Lumbee Tribe. The
Tribe's service area is specified as four counties in North
Carolina. The Secretary of the Interior and the Secretary of
Health and Human Services are required to consult with the
Lumbee Tribe to develop a statement of needs and budget. The
statement shall be submitted to Congress.
Further, this section provides that the Lumbee Tribe is
prohibited from conducting, licensing, or regulating gaming
pursuant to any inherent authority they may possess, the Indian
Gaming Regulatory Act, or any other federal law.
This section also provides that the tribal roll in effect
on the date of enactment shall define the tribe's service
population. The Secretary of the Interior shall verify the
tribe's roll within two years after the date of the enactment
of this section. Lands in Robeson County to be held in trust
for the Secretary shall be considered as ``on-reservation''
trust acquisitions under part 151 of the Code of Federal
Regulations. The State of North Carolina shall exercise civil
and criminal jurisdiction over all actions arising on lands
held in trust for the tribe. The State of North Carolina may
transfer its civil or criminal jurisdiction to the United
States. The application of the Indian Child Welfare Act of 1978
is not affected by this subsection. Finally, this subsection
authorizes appropriations in the amount of such sums as are
needed.
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
Constitutional Authority Statement
Article I, section 8 of the Constitution of the United
States grants Congress the authority to enact this bill.
Compliance With House Rule XIII
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that Rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
3. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to provide for the recognition of the
Lumbee Tribe of North Carolina, and for other purposes.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for this bill from the Director of the Congressional Budget
Office:
H.R. 31--Lumbee Recognition Act
Summary: H.R. 31 would provide federal recognition to the
Lumbee Tribe of North Carolina, thereby making the tribe
eligible to receive funding from various federal programs. CBO
estimates that implementing this legislation would cost $786
million over the 2010-2014 period, assuming appropriation of
the necessary funds. Enacting H.R. 31 would not affect direct
spending or revenues.
H.R. 31 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on state, local, or tribal
governments.
Estimated cost to the federal government: The estimated
budgetary impact of H.R. 31 is shown in the following table.
The costs of this legislation fall within budget functions 450
(community and regional development) and 550 (health).
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By fiscal year, in millions of dollars--
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2010 2011 2012 2013 2014 2919-2014
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CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Bureau of Indian Affairs:
Estimated Authorization Level................. 28 29 29 30 30 146
Estimated Outlays.............................. 21 28 29 30 30 138
Indian Health Service:
Estimated Authorization Level.................. 126 129 132 135 139 661
Estimated Outlays.............................. 113 129 132 135 139 648
Total Changes:.................................
Estimated Authorization Level.............. 154 158 161 165 169 807
Estimated Outlays.......................... 134 157 161 165 169 786
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Basis of estimate: For this estimate, CBO assumes that H.R.
31 will be enacted near the end of fiscal year 2009. The bill
would provide federal recognition to the Lumbee Tribe of North
Carolina. Such recognition would allow the Lumbee, with
membership of about 54,000 people, to receive benefits from
various programs administered by the Bureau of Indian Affairs
(BIA) and the Indian Health Service (IHS). Based on the average
expenditures from those agencies for other Indian tribes, CBO
estimates that implementing H.R. 31 would cost $786 million
over the 2010-2014 period, assuming appropriation of the
necessary funds.
Bureau of Indian Affairs: BIA provides funding to federally
recognized tribes for various purposes, including child welfare
services, adult care, community development, and general
assistance. A portion of this funding (classified in the BIA
budget as tribal priority allocations) is awarded solely on the
basis of population in the tribe's service area. (A service
area is where BIA services are generally provided.) Based on
information from BIA, CBO expects that the Lumbee Tribe would
receive approximately $6 million per year in such funding,
assuming that about 75 percent of the total membership lives
within the tribe's designated service area. In addition to the
tribal priority allocation, the Lumbee Tribe would likely
receive BIA funding based on other needs and characteristics of
the tribe's members.
In total, CBO estimates that providing BIA services would
cost $138 million over the 2010-2014 period, assuming
appropriation of the necessary funds. This estimate is based on
per capita expenditures for other federally recognized tribes
located in the eastern United States.
Indian Health Service: H.R. 31 also would make members of
the Lumbee Tribe eligible to receive health benefits from the
IHS. Based on information from the IHS, CBO estimates that
about 56 percent of tribal members--or about 31,000 people--
would receive benefits each year. CBO assumes that the cost to
serve those individuals would be similar to funding for current
IHS beneficiaries--about $4,000 per individual in 2009.
Assuming appropriation of the necessary funds and adjusting for
anticipated inflation, CBO estimates that IHS benefits for the
Lumbee Tribe would cost $648 million over the 2010-2014 period.
Other Federal agencies: In addition to BIA and IHS funding,
certain Indian tribes also receive support from other federal
programs within the Departments of Education, Housing and Urban
Development, Labor, and Agriculture. Based on their status as a
tribe recognized by North Carolina, the Lumbee are already
eligible to receive funding from those departments. Thus, CBO
estimates that implementing H.R. 31 would not add to the cost
of those programs.
Intergovernmental and private-sector impact: H.R. 31
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments.
Estimate prepared by: Federal Costs: Leigh Angres--Bureau
of Indian Affairs, Robert Stewart--Indian Health Service;
Impact on State, Local, and Tribal Governments: Melissa
Merrell; Impact on the Private Sector: Marin Randall.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
Earmark Statement
H.R. 31 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9(d), 9(e) or 9(f) of rule XXI.
Preemption of State, Local, or Tribal Law
This bill is not intended to preempt any State, local, or
tribal law.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
ACT OF JUNE 7, 1956
(Chapter 375)
AN ACT Relating to the Lumbee Indians of North Carolina.
Whereas many Indians now living in Robeson and adjoining counties are
descendants of that once large and prosperous tribe which occupied the
lands along the Lumbee River at the time of the earliest white settlements
in that section; [and]
Whereas at the time of their first contacts with the colonists, these
Indians were a well-established and distinctive people living in European-
type houses in settled towns and communities, owning slaves and livestock,
tilling the soil, and practicing many of the arts and crafts of European
civilization; [and]
Whereas by reason of tribal legend, coupled with a distinctive appearance
and manner of speech and the frequent recurrence among them of family names
such as Oxendine, Locklear, Chavis, Drinkwater, Bullard, Lowery, Sampson,
and others, also found on the roster of the earliest English settlements,
these Indians may, with considerable show of reason, trace their origin to
an admixture of colonial blood with certain coastal tribes of Indians;
[and]
Whereas these people are naturally and understandably proud of their
heritage, and desirous of establishing their social status and preserving
their racial history[: Now, therefore,];
Whereas the Lumbee Indians of Robeson and adjoining counties in North
Carolina are descendants of coastal North Carolina Indian tribes,
principally Cheraw, and have remained a distinct Indian community since the
time of contact with white settlers;
Whereas since 1885 the State of North Carolina has recognized the Lumbee
Indians as an Indian tribe;
Whereas in 1956 the Congress of the United States acknowledged the Lumbee
Indians as an Indian tribe, but withheld from the Lumbee Tribe the
benefits, privileges and immunities to which the Tribe and its members
otherwise would have been entitled by virtue of the Tribe's status as a
federally recognized tribe; and
Whereas the Congress finds that the Lumbee Indians should now be entitled
to full Federal recognition of their status as an Indian tribe and that the
benefits, privileges and immunities that accompany such status should be
accorded to the Lumbee Tribe: Now, therefore,
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That the
Indians now residing in Robeson and adjoining counties of North
Carolina, originally found by the first white settlers on the
Lumbee River in Robeson County, and claiming joint descent from
remnants of early American colonists and certain tribes of
Indians originally inhabiting the coastal regions of North
Carolina, shall, from and after the ratification of this Act,
be known and designated as Lumbee Indians of North Carolina and
shall continue to enjoy all rights, privileges, and immunities
enjoyed by them as citizens of the State of North Carolina and
of the United States as they enjoyed before the enactment of
this Act, and shall continue to be subject to all the
obligations and duties of such citizens under the laws of the
State of North Carolina and the United States. [Nothing in this
Act shall make such Indians eligible for any services performed
by the United States for Indians because of their status as
Indians, and none of the statutes of the United States which
affect Indians because of their status as Indians shall be
applicable to the Lumbee Indians.]
[Sec. 2. All laws and parts of laws in conflict with this Act
are hereby repealed.]
Sec. 2. (a) Federal recognition is hereby extended to the
Lumbee Tribe of North Carolina, as designated as petitioner
number 65 by the Office of Federal Acknowledgement. All laws
and regulations of the United States of general application to
Indians and Indian tribes shall apply to the Lumbee Tribe of
North Carolina and its members.
(b) Notwithstanding the first section, any group of Indians
in Robeson and adjoining counties, North Carolina, whose
members are not enrolled in the Lumbee Tribe of North Carolina
as determined under section 3(c), may petition under part 83 of
title 25 of the Code of Federal Regulations for acknowledgement
of tribal existence.
Sec. 3. (a) The Lumbee Tribe of North Carolina and its
members shall be eligible for all services and benefits
provided to Indians because of their status as members of a
federally recognized tribe. For the purposes of the delivery of
such services, those members of the Tribe residing in Robeson,
Cumberland, Hoke, and Scotland counties in North Carolina shall
be deemed to be residing on or near an Indian reservation.
(b) Upon verification by the Secretary of the Interior of a
tribal roll under subsection (c), the Secretary of the Interior
and the Secretary of Health and Human Services shall develop,
in consultation with the Lumbee Tribe of North Carolina, a
determination of needs to provide the services to which members
of the Tribe are eligible. The Secretary of the Interior and
the Secretary of Health and Human Services shall each submit a
written statement of such needs to Congress after the tribal
roll is verified.
(c) For purposes of the delivery of Federal services, the
tribal roll in effect on the date of the enactment of this
section shall, subject to verification by the Secretary of the
Interior, define the service population of the Tribe. The
Secretary's verification shall be limited to confirming
compliance with the membership criteria set out in the Tribe's
constitution adopted on November 16, 2001, which verification
shall be completed within 2 years after the date of the
enactment of this section.
Sec. 4. (a) The Secretary may take land into trust for the
Lumbee Tribe pursuant to this Act. An application to take land
located within Robeson County, North Carolina, into trust under
this section shall be treated by the Secretary as an ``on
reservation'' trust acquisition under part 151 of title 25,
Code of Federal Regulation (or a successor regulation).
(b) The tribe may not conduct gaming activities as a matter
of claimed inherent authority or under the authority of any
Federal law, including the Indian Gaming Regulatory Act (25
U.S.C. 2701 et seq.) or under any regulations thereunder
promulgated by the Secretary or the National Indian Gaming
Commission.
Sec. 5. (a) The State of North Carolina shall exercise
jurisdiction over--
(1) all criminal offenses that are committed on; and
(2) all civil actions that arise on, lands located
within the State of North Carolina that are owned by,
or held in trust by the United States for, the Lumbee
Tribe of North Carolina, or any dependent Indian
community of the Lumbee Tribe of North Carolina.
(b) The Secretary of the Interior is authorized to accept on
behalf of the United States, after consulting with the Attorney
General of the United States, any transfer by the State of
North Carolina to the United States of any portion of the
jurisdiction of the State of North Carolina described in
subsection (a) pursuant to an agreement between the Lumbee
Tribe and the State of North Carolina. Such transfer of
jurisdiction may not take effect until 2 years after the
effective date of the agreement.
(c) The provisions of this section shall not affect the
application of section 109 of the Indian Child Welfare Act of
1978 (25 U.S.C. 1919).
Sec. 6. There are authorized to be appropriated such sums as
are necessary to carry out this Act.
ADDITIONAL AND DISSENTING VIEWS
H.R. 31 extends recognition to the Lumbee Indians of North
Carolina. If recognized, the Lumbees would be one of the
largest tribes in the U.S. in terms of their membership.
According to the Congressional Budget Office, this would cost
$786 million over the FY 2010-14 period, assuming appropriation
of the necessary funds. Perhaps the Democratic Leadership no
longer suffers from sticker shock in light of the trillions of
taxpayer dollars it has spent, borrowed, and taxed in just a
few months, but three-quarters of the billion dollars is
nevertheless a significant sum of money and recognizing an
enormous new tribe may stretch budgets thin for services
provided to tribes everywhere else. Legislative proposals to
recognize the Lumbee have surfaced numerous times over the last
century, yet none were enacted. No new information has come to
light to justify passing it today; thus, further action on H.R.
31 seems premature. Simply put, more justification is needed to
recognize the Lumbee Tribe.
First, the Obama Administration testified in support of
H.R. 31, reversing the stance of the Bush Administration. In
the Committee hearing on the bill held on March 18, 2009, the
witness from the Department of the Interior was unable to
explain why the Obama Administration supports legislative
recognition of the Lumbees. The witness testified:
There are rare circumstances when Congress should
intervene and recognize a tribal group, and the case of
the Lumbee Indians is one such rare case. We support
H.R. 31 with amendments as discussed below.
What are these ``rare circumstances''? The witness did not
describe them. What if any standard did the Obama
Administration use to decide the Lumbees warrant federal
recognition in light of the opposition of previous
Administration's? None were provided. The witness could not
even identify who in the Administration made the recommendation
for the President to endorse Lumbee recognition, or whether
there were any objective criteria and standards on which the
endorsement was based. Perhaps the President used ``empathy''
rather than rule of law to make his decision. Perhaps the
decision was a political one. Maybe it is purely arbitrary. In
any case, it would help the Congress to be informed as to why
the Executive Branch shifted its historic stance.
In spite of a number of hearings in the House and Senate
over the years, there are nevertheless some unanswered
questions. To date, the Committee does not seem to have
reliable information as to how many members are in the tribe.
In the Committee hearing on H.R. 31, the Interior witness
estimated the Lumbee tribe includes ``over 40,000'' members.
The Lumbee Chairman subsequently testified there are about
55,000 members. Why is there a difference of 15,000 between
what is recognized by Interior and the Tribe? This disparity
alone is larger than the enrollment of many whole tribes.
According to a recent news article that was submitted for
the hearing record, some Lumbees want to open the rolls and
increase the membership of the tribe even more, but the tribe
is holding off doing so until Congress passes H.R. 31.
The House should obtain a certain membership number on
which to estimate the cost of the bill and its impact on
resources available to all recognized tribes. The CBO bases its
dramatic cost estimate of $786 million over five years on an
assumed enrollment of 54,000 members. If the Lumbee does change
its enrollment criteria to expand membership after recognition
is extended, the costs could swell to more than a billion
dollars over the same five-year period.
This leads to a related concern. As written, the bill does
not require members of the Lumbee tribe to be individuals
possessing Indian ancestry. There is no reason to question the
intentions of the tribe, which wants to enroll only Indian
people. But as the Constitution reserves only to Congress the
power to recognize a tribe, then it is the duty of the Congress
to ensure that a tribal recognition bill provides a means to
verify that it is recognizing a tribe of Indian people. To do
otherwise undermines the whole notion of tribal recognition and
thereby dishonors all validly recognized tribes.
On this point, H.R. 31 limits the Secretary only to
``confirming compliance with the membership criteria set out in
the Tribe's constitution adopted on November 16, 2001, which
verification shall be completed within 2 years after the date
of the enactment of this section.'' This language actually
prohibits the Secretary from confirming whether all Lumbee
members descend from historic Indian tribes of North Carolina
as described in the findings section of the bill. This is
inappropriate and unreasonable.
The membership criteria of the tribe, according to the
Lumbee chairman, consist of two things: proof of descent from
an ancestor on the tribe's base roll, and maintaining contact
with the tribe.
There is no mechanism in H.R. 31 providing that anyone--
other than the Lumbee Tribe itself--to verify that individuals
listed on the tribe's base roll are, in fact, Indian people.
The tribe has testified that its members are descendants of
coastal North Carolina tribes. At a minimum, the Secretary
should verify that every member of the tribe descends from such
historic tribes. Such verification has not been done and it is
not required under H.R. 31.
Verification of Indian ancestry is justified for the simple
reason that it is a tenet of Indian law. A number of laws
enacted over many years provide clear requirements that Indian
people must be members of Indian tribes. H.R. 31 should be no
different.
A final and broader concern with H.R. 31 is that what
Congress does with this bill could well affect the Committee's
ongoing work to address the Supreme Court decision in Carcieri
v. Salazar. Members of the Committee who were present for the
April 1 hearing on this matter learned that the Supreme Court
held that the Secretary of the Interior has no authority to
acquire lands into trust for tribes not under federal
jurisdiction in 1934, except when authorized by a specific Act
of Congress. As a result, the Secretary can no longer acquire
lands in trust without a specific Act of Congress for tribes
recognized after 1934, and the trust status of the lands of
such tribes might be open to challenge.
The Lumbee Tribe was not under federal jurisdiction in
1934. Thus, anything done with H.R. 31, could set a precedent
for resolving Carcieri. Under H.R. 31, lands placed in trust
for the Lumbee Tribe will be secure; meanwhile, lands held in
trust or proposed for trust by other tribes recognized many
years ago, are not secure. This kind of inconsistency in
federal Indian policy is the kind that led to the Carcieri
controversies in the first place.
If the solution to Carcieri is to deal with each and every
post-1934 tribe's trust land application separately in
Congress, then H.R. 31 is appropriate. If the solution is to
provide the Secretary of Interior with appropriate authority to
acquire lands in trust, then H.R. 31 is not appropriate.
While the Committee has held a hearing on Carcieri, there
seems to be no consensus on how to resolve it. We have received
no testimony from the Department, and none of the tribes,
states, counties, cities, private land owners and other
concerned interests have had an opportunity to testify in the
Committee as of the time the report for H.R. 31 is filed.
It would be wise to postpone Floor action of any
recognition bills until the Committee acquires a better
understanding of the impacts of Carcieri and what to do about
it.
Doc Hastings.