[Senate Report 110-409]
[From the U.S. Government Publishing Office]
110th Congress Report
SENATE
2d Session 110-409
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PROVIDING FOR THE RECOGNITION OF THE LUMBEE TRIBE OF NORTH CAROLINA,
AND FOR OTHER PURPOSES
_______
July 8, 2008.--Ordered to be printed
_______
Mr. Dorgan, from the Committee on Indian Affairs,
submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 65]
The Committee on Indian Affairs, to which was referred the
bill (H.R. 65) to provide for the recognition of the Lumbee
Tribe of North Carolina, and for other purposes, having
considered the same, reports favorably thereon without
amendment and recommends that the bill do pass.
Purpose
The purpose of H.R. 65 is to provide for the federal
recognition of the Lumbee Tribe of North Carolina (as
designated as petitioner number 65 by the Office of Federal
Acknowledgment at the Department of the Interior), make
applicable to the group and its members all laws that are
generally applicable to American Indians and federally-
recognized Indian tribes, and make available all services for
which such groups are eligible. Further, the bill authorizes
any group of Indians in Robeson and adjoining counties in North
Carolina, whose members are not enrolled in the Lumbee Tribe of
North Carolina, to submit a petition to the Department of the
Interior for acknowledgment of tribal existence.
Background and History
The issue of whether to provide federal recognition to the
Lumbee Indians is a longstanding one. Attempts to obtain
federal recognition for the group began in 1888. Since that
time, there have been numerous bills introduced in Congress to
recognize the group, but none has been passed into law. There
have also been numerous reports and studies conducted on the
history of the Lumbee Indians. A history of these bills and
some of the studies are better described in previous reports of
the House of Representatives and Senate.\1\ The information in
this report is primarily derived from previous congressional
reports, Committee hearing records, and letters submitted by
interested parties.
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\1\ See 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.
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Although the Lumbee Indians have so far failed to gain
federal recognition, the State of North Carolina has recognized
the group as an Indian tribe, under various names and for
varying purposes, since approximately 1885.\2\
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\2\ The Lumbee Indians have been recognized by the State of North
Carolina as Croatans, Indians of Robeson County, Cherokee Indians of
Robeson County, and Lumbee Indians. One of the primary purposes of the
initial state recognition was to fund a segregated school system
operated and attended exclusively by children of the Lumbee Indians.
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Given the history of the Lumbee Indians and the inability
of the group to utilize the Federal Acknowledgment Process, the
Committee supports congressional action to extend federal
recognition to the Lumbee Indians (as designated as petitioner
number 65 by the Office of Federal Acknowledgment at the
Department of the Interior). Further, the Committee supports
clarifying that other groups of Indians in Robeson and
adjoining counties who are not enrolled in the Lumbee Tribe
under Section 3(c) of the bill are authorized to utilize the
Federal Acknowledgment Process.
HISTORY OF RECOGNIZING INDIAN TRIBES
The recognition of an Indian group as a federally
recognized Indian tribe is an important action. It is an
affirmation by the United States of a tribe's right to self-
government and the existence of a formal government-to-
government relationship with the tribe. Once a tribe is
federally recognized, it has access to federal benefits and
programs, and incurs a responsibility to its members as the
primary governing body of the community.
Before Congress ended the practice of treaty-making with
Indian tribes in 1871, treaties were the usual manner of
recognizing a government-to-government relationship between the
United States and an Indian tribe. Since the abolishment of
treaty-making, the United States has recognized Indian tribes
by executive order, legislation, and administrative decisions
by the Executive Branch.
Additionally, federal courts may clarify the status of an
Indian group, though in many cases, the courts defer to the
Bureau of Indian Affairs at the Department of the Interior.
In order to provide a uniform and consistent process in
which to recognize an Indian group, the Department of the
Interior developed an administrative process in 1978 through
which Indian groups could petition for acknowledgment of a
government-to-government relationship with the United States.
The standards for this process are set forth in Title 25 of the
Code of Federal Regulations, Part 83, ``Procedures for
Establishing That an American Indian Group Exists as an Indian
Tribe.''
The regulations establish seven mandatory criteria; each of
which must be met before a group can achieve status as a
federally recognized Indian tribe. The criteria are as follows:
(1) The petitioner has been identified as an American
Indian entity on a substantially continuous basis since 1900;
(2) A predominant portion of the petitioning group
comprises a distinct community and has existed as a community
from historical times until the present;
(3) The petitioner has maintained political influence or
authority over its members as an autonomous entity from
historical times until the present;
(4) The group must provide a copy of its present governing
documents and membership criteria;
(5) The petitioner's membership consists of individuals who
descend from a historical Indian tribe or tribes, which
combined and functioned as a single autonomous political
entity;
(6) The membership of the petitioning group is composed
principally of persons who are not members of any acknowledged
North American Indian tribe; and
(7) Neither the petitioner nor its members are the subject
of congressional legislation that has expressly terminated or
forbidden the federal relationship.
The regulations have essentially remained unchanged since
1978, with the exception of revisions clarifying the evidence
needed to support a recognition petition (1994), updated
guidelines on the process (1997), and a notice regarding BIA's
internal processing of federal acknowledgment petitions (2000).
There have been numerous complaints about the process since
1978, but the primary complaints have been about the high cost
of gathering documentary evidence to meet the seven criteria
and the length of time it takes the Department to review a
petition. Out of hundreds of petitioners that have filed
petitions under the process, as of January 1, 2008, the
Department has issued only 41 decisions. Of that number, 16
petitioners were acknowledged as Indian tribes, and 25
petitioners were denied acknowledgment.
Due to the problems associated with the Federal
Acknowledgment Process, an increasing number of tribal groups
have asked Congress to recognize or restore their status as
federally-recognized Indian tribes. Congress retains the
authority to recognize tribal groups, as Congress did with the
Loyal Shawnee Tribe of Oklahoma and the Graton Rancheria of
California in 2000 in the Omnibus Indian Advancement Act.\3\
According to a report issued by the Congressional Research
Service in September 2003, Congress has recognized, restored or
otherwise changed the status of 28 tribal groups since the
Federal Acknowledgment Process was created in 1978. Extending
back to 1960, a total of 47 groups have had their tribal status
clarified by congressional action.
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\3\ See Pub. L. 106-568 (2000).
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HISTORY OF THE LUMBEE INDIANS
Congress has deliberated on the status of the Lumbee
Indians for more than a century. Since 1899, numerous bills
have been introduced in Congress to recognize the Lumbee
Indians, though none have been enacted into law.\4\
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\4\ 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.
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It appears that one of the reasons that the Lumbees have
not been recognized yet is uncertainty over the group's
origins. Unlike many other Indian tribes, the Lumbees cannot
trace their lineage back to any tribal group that had a treaty
relationship with the United States. The name ``Lumbee'' comes
from the Indians themselves and is a recent designation from
the 1950's based upon the name of the Lumber River, on which
the Lumbee Indians reside.
Several reports were issued by the Department of the
Interior between 1900 and 1935 regarding the origins of the
Lumbee Indians and their status.\5\ None of these reports
provide conclusive evidence of Lumbee origins. In fact, the
reports indicate that the Lumbee Indians, at various times,
have been considered to be Croatan Indians, Siouan Indians,
Cherokee Indians, and Cheraw Indians.
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\5\ See Indian School Supervisor Pierce Report, filed with 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 in 1933; and Fred A. Baker Report on the Siouan
Tribe of Indians of Robeson County, July 9, 1935.
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In 1885, the Lumbees were believed to be descendants of the
lost Raleigh colony and were designated as Croatan Indians.\6\
In a 1934 report by the Department of the Interior to the
Senate Committee on Indian Affairs the Lumbee were described
as:
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\6\ Report of J.R. Swanton, Smithsonian Institution, at request of
Bureau of Indian Affairs and submitted to Congress in 1933 and included
within S. Rep. No. 204, 73d Cong., 2d Sess.
. . . a people who combine in themselves the blood of
the wasted native tribes, the early colonists or forest
rovers, the runaway slaves or other Negroes, and
probably also of stray seamen of the Latin races from
coasting vessels in the West Indian or Brazilian
trade.\7\
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\7\ See S. Rep. No. 204, 73d Cong., 2d Sess.
In 1955, the leader of the Lumbee Indians testified before
the House of Representatives that the Indians of Robeson County
were an ``admixture of seven different tribes of Indians,
including the Cherokee, Tuscarora, Hatteras, Pamli and
Croatan.'' \8\
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\8\ See Statement of Reverend D.F. Lowery of Pembroke, North
Carolina before the Subcommittee on Indian Affairs, Committee on
Interior and Insular Affairs, United States House of Representatives,
Hearing on H.R. 4656 Relating to the Lumbee Indians of North Carolina,
July 22, 1955.
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A report conducted in 1934 by J.R. Swanton, a well-
respected specialist on southeastern Indians with the
Smithsonian Institution, is considered to be the most reliable
report on the origins of the Lumbee Indians. His report
entitled the ``Probable Identity Of The `Croatan' Indians''
concludes that the Croatan Indians [now called the Lumbee] are
likely descendants from the Cheraw and other related tribes.
Mr. Swanton also concluded that the Cheraw Indians were ``very
probably of Siouan stock.'' At that time, the Secretary of the
Interior adopted the view of Mr. Swanton, but opposed providing
the Lumbee with any federal wardship or any other governmental
rights or benefits.\9\
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\9\ See S. Rep. No. 204, 73d Cong., 2d Session. Recently, staff at
the Department of the Interior that administer the administrative
acknowledgment process have expressed some concern about the absence of
a genealogical connection between the modern day Lumbee Tribe and the
historic Cheraw Tribe. Representatives of the Lumbee Tribe acknowledge
the lack of a genealogical connection, but state that this is due to a
lack of recording the births and deaths of tribal members by the
dominant society in the early 1700's. The Lumbee Tribe does state that
it can connect modern day members to the Lumbee community located at
Drowning Creek, the known home of the Cheraw Tribe, as far back as
1790.
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The uncertainty of the origins of the Lumbee has led the
Department of the Interior to consistently oppose federal
recognition of the Lumbee Indians as a tribe. The Department
has historically stated that the United States has never
entered into treaty relations with the Lumbee, the federal
government is in no way indebted to the Lumbee, and that claims
for assistance by the Lumbee Indians have no merit other than
that which would attach to other needy citizens.
When Congress previously considered bills to recognize the
Lumbee, the Department consistently requested that any
recognition not be construed as conferring a federal wardship
or any other governmental rights or benefits upon the Lumbee
Indians. Such was the case in 1956, when Congress finally
passed legislation designating the Indians of Robeson and
adjoining counties in North Carolina as Lumbee Indians.
Between 1913 and 1953, the State of North Carolina
recognized the Indians of Robeson County as Cherokee Indians.
In 1951, the County Commissioners held a referendum at which
the choice of a name for the Indians of Robeson and adjoining
counties was determined. The result of this referendum was
2,169 votes for ``Lumbee Indians of North Carolina'' and 35
votes to remain ``Cherokee Indians of Robeson County.'' \10\ As
a result of the referendum, the State of North Carolina
modified its recognition of the Indians in 1953 and recognized
them as Lumbee Indians.\11\
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\10\ See Statement of Reverend D.F. Lowery of Pembroke, North
Carolina before the Subcommittee on Indian Affairs, Committee on
Interior and Insular Affairs, United States House of Representatives,
Hearing on H.R. 4656 Relating to the Lumbee Indians of North Carolina,
July 22, 1955.
\11\ See North Carolina General Assembly 1953, chap. 874.
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Thereafter, the Lumbee Indians went to Congress seeking
passage of a bill similar to that passed by the State of North
Carolina. A bill was introduced and passed by the House of
Representatives, which designated the Indians of Robeson County
as Lumbee Indians.\12\
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\12\ See H.R. 4656, 84th Cong., 2d Sess.
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During consideration of the bill in the House, the purpose
of the bill was thoroughly discussed between Members of
Congress and representatives of the Lumbee during a hearing:
Mr. Aspinall. The next question would be: What benefit
would they [the Lumbee Indians] expect to get from
this? Just purely the name ``Lumbee Indian Tribe'' does
not appear to me to give too much importance to it,
unless they expect to get some recognition later on as
members of some authorized tribe, and then come before
Congress asking for the benefits that naturally go to
recognized tribes.
Mr. Carlyle. No one has ever mentioned to me any
interest in that, that they had any interest in
becoming a part of a reservation or asking the Federal
Government for anything. Their purpose in this
legislation is to have a name that they think is
appropriate to their group. I do not know that they
refer to themselves as a tribe. They are citizens who
belong to the Indian race and they were interested in
having a name that would have, they think, some
significance.
* * * * * * *
Mr. Carlyle. Now let me direct your attention to this
subject: What is the main purpose that the Indians of
Robeson County have in asking that their names be
designated as Lumbee Indians of North Carolina?
Reverend Lowery. Since the Indians of Robeson County
are mixed, an admixture of seven different tribes of
Indians, including the Cherokee, Tuscarora, Hatteras,
Pamli and Croatan--about seven different tribes were
mixed with them and intermarried with the first
colonies.
Among these Indians were found 42 names on the roster
of White's Colony sent over by Walter Raleigh. They
were killed.
Later on the Cherokee Indians, the Cherokee Indians
in the West, resented that. They introduced a bill at
Raleigh to name us ``Cherokee Indians of North
Carolina'' and the senator from Cherokee County wired
up there and they sent a delegation down there to
object to it. Then they had to change the bill and
designate us as ``Cherokee Indians of Robeson County''
so when our boys go off to college, prior to this, they
would say to them,
``What nationality are you?''
``I am an Indian.''
``Where are you from? What tribe are you from?''
``Cherokee.''
``I have a cousin teaching at the Government School
up there, Mary Butler. How do you like her?''
``I never heard of her.''
``How do you like the president of the school?''
``Never heard of him.''
``You said you were a Cherokee Indian.''
``Yes, but I am not from up there. I am from Robeson
County.''
``Oh, I didn't know there was any Cherokee Indian in
Robeson County.''
So that boy or girl was embarrassed. We go off to the
various states and are embarrassed. While we were
Cherokee Indians, after we told them we're Cherokees
and then they told them about the teachers and the
school, and they did not know anything about them, they
did not believe anything they said.
If we get the name ``Lumbee'' we can go to any school
in the United States and tell them we are Lumbee
Indians. We can pick up the Act of the Legislature and
pick up the bill and read that the Lumbee Indians are
descendants of the seven tribes of Indians that settled
on the Lumber River, and are Lumbee Indians just like
the Hatteras and Mississippi Indians. Then they would
have no trouble telling the people, ``We are Lumbee
Indians.''
They could look us up and find we are in the law; in
the books at Raleigh, and therefore we are honest in
their sight. That is No. 1.
* * * * * * *
Mr. Aspinall. Do you or any members of your
organization anticipate that after you might receive
this designation you would come to Congress and ask for
any of the benefits that otherwise go to Indian Tribes?
Reverend Lowery. No, sir. We would leave the county
before we would come under a reservation or anything
like wards of the government. We are citizens and
always have been citizens. We would leave before we
would come on this reservation.\13\
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\13\ Hearing on H.R. 4656 Relating to the Lumbee Indians of North
Carolina, Subcommittee on Indian Affairs, Committee on Natural
Resources, House of Representatives, July 22, 1955.
The transcript of the hearing record makes clear that the
Lumbee Indians were not expecting to receive any federal
benefits or privileges as a result of the 1956 law.
Nonetheless, the Department of the Interior objected to the
bill because the United States has no treaty or other
obligation to provide services to these Indians. Because of
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this, the Secretary of the Interior stated:
We are therefore unable to recommend that the
Congress take any action which might ultimately result
in the imposition of additional obligations on the
Federal Government or in placing additional persons of
Indian blood under the jurisdiction of this Department.
The persons who constitute this group of Indians have
been recognized and designated as Indians by the State
legislature. If they are not completely satisfied with
such recognition, they, as citizens of the State, may
petition the legislature to amend or otherwise to
change that recognition. Except for the possibility of
becoming entitled to Federal services as Indians, the
position of this group of Indians would not be enhanced
by enactment of this bill.\14\
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\14\ S. Rep. No. 2012, 84th Cong., 2d Sess.
Ultimately, the Congress amended the bill as requested by
the Department of the Interior by including the following
language: ``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.'' \15\ Thus, the Indians of Robeson and adjoining
counties were designated as Lumbee Indians, but not granted any
eligibility for services or benefits.
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\15\ See Pub. L. 570, Act of June 7, 1956, 70 Stat. 254.
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The Department of the Interior has interpreted the 1956 law
as preventing the Lumbee Indians from utilizing the Federal
Acknowledgment Process to become a federally-recognized Indian
tribe. In 1989, the Solicitor for the Department of the
Interior concluded that the 1956 law forbids a government-to-
government relationship with the Lumbee Indians.\16\ One of the
seven requirements of the Department's administrative process
for federal acknowledgment as an Indian tribe is that neither
the group nor its members be the subject of congressional
legislation that has expressly terminated or forbidden the
Federal relationship. Thus, the Lumbee Indians, unlike most
Indian groups, cannot pursue the normal administrative process
to obtain federal recognition.
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\16\ See Memorandum to Assistant Secretary--Indian Affairs, U.S.
Department of the Interior, Office of the Solicitor [BIA-IA-0929]
(1989) in H.R. Rep. No. 102-215 (1991).
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The Department of the Interior has recognized the
consequences of its 1989 Solicitor's opinion. However, rather
than directly recognize the Lumbee Indians as a tribe the
Department would prefer that Congress amend the 1956 law to
allow the Lumbee Indians to pursue the Department's
administrative process.\17\ Representatives of the Lumbee
Indians testified that requiring them to do so would delay
their recognition by at least another ten years.
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\17\ See Testimony of R. Lee Fleming, Director, Office of Federal
Acknowledgment, Department of the Interior, before the Committee on
Indian Affairs, U.S. Senate, July 12, 2006.
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The Committee is sympathetic to the plight of the Lumbee
Indians. Although there appears to be no conclusive evidence of
a relationship between the Lumbee Indians and one historic
tribe, there is ample evidence that individual Lumbees are
Indians. The various reports submitted to Congress and
testimony provided to the Committee during the last one hundred
years all recognize the Lumbees as Indians. The 1956 law passed
by Congress also recognizes the Lumbees as Indians. H.R. 65
would extend federal recognition to the Lumbee Indians as an
Indian tribe.
This recognition would be consistent with the longstanding
recognition of the Lumbee Indians as an Indian tribe by the
State of North Carolina. In 1885, the State of North Carolina
recognized the Lumbee Indians (then designated as Croatan
Indians) as an Indian tribe and established a separate school
system for their children, one that the Lumbee tribe itself
ran. Enrollment in the school was restricted to Lumbee children
who could demonstrate Lumbee descent four generations back, or
into the 1770's. The State of North Carolina established the
Indian Normal School in 1888 to train Lumbee teachers for the
Tribe's school system. The Indian Normal School has been in
continuous operation since that time and is today the
University of North Carolina at Pembroke.
In addition to the school system, there is ample evidence
that the Lumbee Indians have had a strong community for more
than the past one hundred years. There are between 53,000-
75,000 Lumbee Indians today. There are two criteria for
membership as a Lumbee. First, a person must prove descent from
an ancestor on the base roll, which was developed using school
and church records and the 1900 and 1910 federal census.
Second, a person must maintain contact with the Lumbee
community.\18\ If a person cannot identify an ancestor, the
person's ancestry is considered by an Elders' Review
Committee.\19\
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\18\ Testimony of James Ernest Goins, Chairman, Lumbee Tribe of
North Carolina, before the Committee on Indian Affairs, U.S. Senate,
July 12, 2006.
\19\ Testimony of Dr. Jack Campisi, Anthropologist and Consultant
for the Lumbee Tribe of North Carolina, before the Committee on Natural
Resources, U.S. House of Representatives, April 18, 2007.
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The Lumbees continue to maintain a strong tribal community
and live in communities that are nearly exclusively Lumbee. In
2006, the Committee heard expert testimony revealing that
sixty-four percent of the Lumbee members live within fifteen
miles of Pembroke, North Carolina, where the original Lumbee
school system was established.\20\ Additionally, the Committee
was informed that seventy percent of Lumbee marriages are
between tribal members. This information shows a remarkable
rate of social cohesion within the tribal community.
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\20\ Testimony of Dr. Jack Campisi, Anthropologist and Consultant
for the Lumbee Tribe of North Carolina before the Committee on Indian
Affairs, U.S. Senate, July 12, 2006.
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The Lumbees have a longstanding history of functioning like
an Indian tribe and being recognized as such by State and local
authorities. Since 1885, the Lumbees have maintained an active
political relationship with the State of North Carolina. For
nearly 100 years, the Lumbees operated their own school system,
established by the State. In defense of their schools, the
Lumbee tribal leaders lobbied the State of North Carolina to
set aside a 1913 Attorney General's opinion that held that the
Robeson County Board of Education could overrule the tribal
leader's decisions about enrollment in the Lumbee schools. In
1921, the State legislature confirmed the Lumbees' authority to
decide enrollment in its schools.\21\
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\21\ Testimony of James Ernest Goins, Chairman, Lumbee Tribe of
North Carolina, before the Committee on Indian Affairs, U.S. Senate,
July 12, 2006.
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Religion and culture have also remained strong in the
Lumbee community, and often Churches operate in a semi-
government fashion. There are more than 130 all-Indian churches
among the Lumbees in Robeson County. Historically, leadership
of the Lumbees arose out of the Lumbee churches. Most recently,
the church leaders directed the effort to adopt a formal tribal
constitution. Following a church-organized constitutional
assembly, the Lumbees adopted its constitution in a special
referendum in 2001.\22\
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\22\ Testimony of James Ernest Goins, Chairman, Lumbee Tribe of
North Carolina, before the Committee on Indian Affairs, U.S. Senate,
July 12, 2006.
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The Committee has received letters and testimony from other
Indian groups and Indian tribes opposing federal recognition of
the Lumbee Indians as a tribe. The main concerns expressed are
the lack of a conclusive lineage to one historical Indian
tribe, the large membership of the Lumbee, the cost associated
with providing federal services and benefits to the Lumbee
tribe, and the impact recognition of the Lumbee Tribe may have
on other groups of Indians in Robeson and adjoining counties.
The Lumbee represent the largest non-federally recognized
tribe in the country. 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.
The Lumbee Tribe receives approximately $11 million in federal
funding for housing programs through the Department of Housing
and Urban Development. As noted in the report provided to the
Committee by the Congressional Budget Office, making the Lumbee
Tribe eligible for federal services will result in a
substantial budgetary impact on all the administrative agencies
that provide programs and services for Indian tribes. However,
the cost of providing justice to the Lumbee Indians is not so
high that it should prevent justice from being done.
Additionally, other local Indian groups that identify with
the historic Tuscarora Tribe located in North Carolina have
expressed concern that they not be deemed Lumbee, either for
purposes of this recognition bill or for being subject to the
provisions of the 1956 law. It is not the Committee's intent to
deem Indians who are not historically Lumbee Indians as such.
H.R. 65 is intended to extend federal recognition to the Lumbee
Indians as an Indian tribe and allow other Indians in Robeson
and adjoining counties to utilize the Federal Acknowledgment
Process at the Department of the Interior. Thus, those Indians
who are of Tuscarora descent should be able to pursue
recognition through the administrative process.
Summary of Major Provisions
H.R. 65 amends Pub. L. 84-570, the 1956 Lumbee Act, to
extend federal recognition to the Lumbee Tribe of North
Carolina and to apply to the Tribe all Federal laws of general
application to Indians and Indian tribes. Further, H.R. 65
allows any other group of Indians in Robeson or adjoining
counties to utilize the Federal Acknowledgment Process at the
Department of the Interior.
Section 2 of H.R. 65 adds additional findings clauses to
the preamble of the 1956 Lumbee Act.
Section 3 amends the 1956 Lumbee Act by striking the
current Section 2 of the 1956 Lumbee Act, and inserting a new
Section 2 that will provide federal recognition to the Lumbee
Tribe of North Carolina (as designated as petitioner number 65
by the Office of Federal Acknowledgment). Language of this new
section further provides that any other group of Indians in
Robeson and adjoining counties, North Carolina, which
heretofore has been prevented from pursuing petitions pursuant
to 25 C.F.R. Part 83, will be deemed eligible to have their
petitions for tribal acknowledgment considered. The Committee
received testimony at its July 12, 2006, hearing from the
Bureau of Indian Affairs Office of Federal Acknowledgment
Director, who indicated that six other groups in Robeson and
adjoining counties in North Carolina, who have petitioned under
the Federal Acknowledgment Process, have been determined
ineligible to petition based on the 1989 Solicitor's opinion
interpreting the 1956 Lumbee Act. In addition, more than 80
other groups that have contacted the Office of Federal
Acknowledgment are affected by the 1956 Lumbee Act.
Section 3 of the bill further amends the 1956 Lumbee Act to
provide a new Section 3 that provides that the Tribe and its
members will be eligible for the programs and services that are
available to other federally recognized tribes. The bill does
not automatically create an Indian reservation but defines a
service delivery area within which the Tribe and its members
will be eligible to receive federal services. The new Section 3
also provides for verification of the tribal membership roll by
the Secretary of the Interior for purposes of delivery of
services. The Committee notes that this verification is not
intended to authorize the Secretary to independently impose
eligibility standards for membership. Rather it is simply
intended to provide the Secretary, in keeping with trust
responsibilities, with oversight to insure that each enrolled
member actually appears on the Tribe's membership roll with the
supporting documentation required by the Tribe. The bill
requires the Secretary to verify the tribal roll within two
years after date of enactment of the bill.
With regard to land, the bill will insert a new Section 4
into the 1956 Lumbee Act. This new section will provide that
land within Robeson County, North Carolina, will be eligible to
be taken into trust by the United States and will be treated as
on-reservation for purposes of the fee-to-trust process. The
bill prohibits the Lumbee Tribe from conducting gaming
activities as a matter of claimed inherent authority or under
any Federal law or regulations.
Notwithstanding the taking of land into trust for the
Tribe, the bill will insert into the 1956 Lumbee Act a new
Section 5 that provides that the State of North Carolina will
continue to exercise civil and criminal jurisdiction over
tribal members and any lands that may be acquired in trust for
the Tribe.\23\ However, the bill allows the State of North
Carolina, with the agreement of the Lumbee tribe, to transfer
criminal and civil jurisdiction to the United States after two
years from the date of enactment of the bill. The bill states
that nothing in the new Section 5 shall affect the application
of Section 109 of the Indian Child Welfare Act of 1978.
---------------------------------------------------------------------------
\23\ The Committee notes that this provision is a departure from
long-established Federal Indian policy, which provides generally for
exclusive Federal and tribal civil and criminal jurisdiction over
tribal members and tribal lands. However, similar jurisdictional
provisions have been provided by Federal statute on a case-by-case
basis for specific Indian reservations or within specific states. See
e.g. P.L. 83-280, 67 Stat. 589, Aug. 15, 1953. The intent of this
provision is to maintain the status quo with respect to jurisdiction,
since the Tribe has enjoyed a long-standing relationship with the State
of North Carolina, and is well represented among elected members of
local governments where tribal members are geographically concentrated.
The Committee further notes that this bill makes provision for
retrocession of that jurisdiction from the State of North Carolina to
the United States upon agreement between the Tribe and the State of
North Carolina.
---------------------------------------------------------------------------
Legislative History
H.R. 65 was introduced in the House of Representatives on
January 4, 2007, by Representative Mike McIntyre (N.C.). The
bill was referred to the Committee on Natural Resources in the
House of Representatives. On April 18, 2007, the Committee on
Natural Resources held a hearing on H.R. 65. On April 25, 2007,
the Committee on Natural Resources met and ordered favorably to
report the bill, with an amendment. On June 7, 2007, the House
of Representatives passed H.R. 65. by a vote of 256-128.
H.R. 65 was received in the Senate and referred to the
Committee on Indian Affairs on June 12, 2007. The Committee
ordered the bill to be reported favorably, without an
amendment, on April 24, 2008.
Section-by-Section Analysis of H.R. 65
Section 1. Short title
Section 1 provides the short title of the bill as the
``Lumbee Recognition Act.''
Section 2. Preamble
Section 2 adds clauses to the 1956 Act finding that the
Lumbee Indians are descendants of coastal North Carolina
Indians; that the State of North Carolina has recognized the
Lumbees as an Indian tribe 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 Lumbee Indians should be entitled
to full Federal recognition of their status as an Indian tribe.
Section 3. Federal recognition
Section 3 amends the 1956 Lumbee Act by striking the
current Section 2 of the 1956 Lumbee Act, and inserting a new
Section 2 that will provide federal recognition to the Lumbee
Tribe of North Carolina (as designated as petitioner number 65
by the Office of Federal Acknowledgment). Language of this new
section further provides that any other group of Indians in
Robeson and adjoining counties, North Carolina, which
heretofore has been prevented from pursuing petitions pursuant
to 25 CFR Part 83, will be deemed eligible to have their
petitions for tribal acknowledgment considered. The Committee
received testimony at its July 12, 2006, hearing from the
Bureau of Indian Affairs Office of Federal Acknowledgment
Director, who indicated that six other groups in Robeson and
adjoining counties in North Carolina, who have petitioned under
the Federal Acknowledgment Process, have been determined
ineligible to petition based on the 1989 Solicitor's opinion
interpreting the 1956 Lumbee Act. In addition, more than 80
other groups that have contacted the Office of Federal
Acknowledgment are affected by the 1956 Lumbee Act.
Section 3 of the bill further amends the 1956 Lumbee Act to
provide a new Section 3 that provides that the Tribe and its
members will be eligible for the programs and services that are
available to other federally recognized tribes. The bill does
not automatically create an Indian reservation but defines a
service delivery area within which the Tribe and its members
will be eligible to receive federal services. The new Section 3
also provides for verification of the tribal membership roll by
the Secretary of the Interior for purposes of delivery of
services. The Committee notes that this verification is not
intended to authorize the Secretary to independently impose
eligibility standards for membership. Rather it is simply
intended to provide the Secretary, in keeping with trust
responsibilities, with oversight to insure that each enrolled
member actually appears on the Tribe's membership roll with the
supporting documentation required by the Tribe. The bill
requires the Secretary to verify the tribal roll within two
years after date of enactment of the bill.
With regard to land, the bill will insert a new Section 4
into the 1956 Lumbee Act. This new section will provide that
land within Robeson County, North Carolina, will be eligible to
be taken into trust by the United States and will be treated as
on-reservation for purposes of the fee-to-trust process. The
bill prohibits the Lumbee Tribe from conducting gaming
activities as a matter of claimed inherent authority or under
any Federal law or regulations.
Notwithstanding the taking of land into trust for the
Tribe, the bill will insert into the 1956 Lumbee Act a new
Section 5 that provides that the State of North Carolina will
continue to exercise civil and criminal jurisdiction over
tribal members and any lands that may be acquired in trust for
the Tribe.\24\ However, the bill allows the State of North
Carolina, with the agreement of the Lumbee tribe, to transfer
criminal and civil jurisdiction to the United States after two
years from the date of enactment of the bill. The bill states
that nothing in the new Section 5 shall affect the application
of Section 109 of the Indian Child Welfare Act of 1978.
---------------------------------------------------------------------------
\24\ The Committee notes that this provision is a departure from
long-established Federal Indian policy, which provides generally for
exclusive Federal and tribal civil and criminal jurisdiction over
tribal members and tribal lands. However, similar jurisdictional
provisions have been provided by Federal statute on a case-by-case
basis for specific Indian reservations or within specific states. See
e.g. P.L. 83-280, 67 Stat. 589, Aug. 15, 1953. The intent of this
provision is to maintain the status quo with respect to jurisdiction,
since the Tribe has enjoyed a long-standing relationship with the State
of North Carolina, and is well represented among elected members of
local governments where tribal members are geographically concentrated.
The Committee further notes that this bill makes provision for
retrocession of that jurisdiction from the State of North Carolina to
the United States upon agreement between the Tribe and the State of
North Carolina.
---------------------------------------------------------------------------
Committee Recommendation and Tabulation of Vote
The Committee held a business meeting to consider H.R. 65
on April 24, 2008. The Committee then voted, by voice vote, to
report H.R. 65 favorably to the full Senate, without amendment.
Cost and Budgetary Considerations
The cost estimate for H.R. 65 as calculated by the
Congressional Budget Office, is set forth below:
H.R. 65--Lumbee Recognition Act
Summary: H.R. 65 would provide federal recognition to the
Lumbee Tribe of North Carolina, thereby making that tribe
eligible to receive funding from various federal programs. CBO
estimates that implementing this legislation would cost $768
million over the 2009-2013 period, assuming appropriation of
the necessary funds. Enacting H.R. 65 would not affect direct
spending or revenues.
H.R. 65 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no direct costs on state, local, or tribal
governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 65 is shown in the following table.
The costs of this legislation fall within budget functions 450
(community and regional development) and 550 (health).
------------------------------------------------------------------------
By fiscal year, in millions of
dollars--
---------------------------------------
2009 2010 2011 2012 2013
------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Bureau of Indian Affairs
Estimated Authorization 24 24 25 25 26
Level......................
Estimated Outlays........... 17 23 24 24 25
Indian Health Service
Estimated Authorization 124 128 133 139 144
Level......................
Estimated Outlays........... 112 128 133 138 144
Total Changes
Estimated Authorization 148 152 158 164 170
Level......................
Estimated Outlays........... 129 151 157 162 169
------------------------------------------------------------------------
Basis of estimate: For this estimate, CBO assumes that H.R.
65 will be enacted near the start of fiscal year 2009. H.R. 65
would provide federal recognition to the Lumbee Tribe of North
Carolina. Such recognition would allow the Lumbee, with a
membership of about 54,000 people, to receive funding from
various programs administered by the Bureau of Indian Affairs
(BIA) and the Indian Health Service (IHS). Based on the average
expenditures for other Indian tribes, CBO estimates that
implementing H.R. 65 would cost $768 million over the 2009-2013
period, assuming appropriation of the necessary funds.
Bureau of Indian Affairs
BIA provides funding to federally recognized Indian 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. Based on information from BIA, CBO expects that the
Lumbee Tribe would receive approximately $6 million per year in
such funding, assuming a service population of 39,700 members.
(The service population reflects those members living in the
tribe's designated service area, where BIA services are
generally provided.) In addition to the tribal priority
allocation, the Lumbee would likely receive additional BIA
funding based on other needs and characteristics of the tribe.
In total, CBO estimates that providing BIA services would
cost $113 million over the 2009-2013 period, assuming
appropriation of the necessary funds. This estimate is based on
expenditures for other federally recognized tribes located in
the eastern United States; the Lumbee Tribe may qualify for
more or fewer services than other tribes in the region.
Indian Health Service
H.R. 65 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
beneficiaries--about $4,000 per individual in 2008. Assuming
appropriation of the necessary funds, CBO estimates that IHS
benefits for the Lumbee Tribe would cost $655 million over the
2009-2013 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 currently
recognized by the state of North Carolina, the Lumbee are
already eligible to receive funding from those sources. Thus,
CBO estimates that implementing H.R. 65 would not add to the
cost of those programs.
Intergovernmental and private-sector impact: H.R. 65
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no direct costs on state,
local, or tribal governments.
Previous CBO estimate:
On May 2, 2007, CBO transmitted a cost estimate for H.R. 65
as ordered reported by the House Committee on Natural Resources
on April 25, 2007. The two versions of the legislation are
nearly identical. Our estimate of spending under the Senate
version is greater because it takes into account updated
information on the likely cost of providing IHS services to the
Lumbee. Specifically, this estimate assumes that the IHS would
serve 9,000 additional people and reflects an estimated 30
percent increase in average costs per beneficiary. Other
differences in our estimates reflect a change in when we assume
H.R. 65 will be enacted.
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: Amy Petz.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Regulatory Impact Statement
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires each report accompanying a bill to evaluate the
regulatory and paperwork impact that would be incurred in
carrying out the bill. The Committee believes that H.R. 65 will
have a minimal impact on regulatory or paperwork requirements.
Executive Communications
There have been no executive communications received by the
Committee with regards to this legislation. However, the
Committee notes that Carl J. Artman, Assistant Secretary for
Indian Affairs at the Department of the Interior testified
before the Committee on Natural Resources in the House of
Representatives on April 18, 2007 regarding H.R. 65. In his
testimony, Mr. Artman testified that the Department strongly
supports all groups going through the federal acknowledgment
process at the Department. Further, Mr. Artman expressed
concern about the length of time that H.R. 65 provides the
Secretary of the Interior to verify the tribal roll, and the
meaning of verification for inclusion on the Lumbee group's
membership roll. Finally, Mr. Artman raised a concern about
whether the provision in H.R. 65 that requires the submission
of an annual budget for programs, services and benefits to the
Lumbee Indians is in compliance with the United States
Constitution.
Additional Views of Senator Tim Johnson
The ability to federally acknowledge, or terminate, the
relationship that an American Indian tribe has with the United
States is the most substantial power Congress has in the area
of Indian Affairs. Acknowledgment carries with it great
immunities and privileges, including the sovereign powers to
exercise criminal and civil jurisdiction over tribal lands, to
tax and to receive appropriations for federal programs serving
tribes and other governments.
In 1978, the Department of the Interior published
regulations that established an administrative process for
Federal acknowledgment whereby petitioning groups must meet
seven mandatory criteria. In brief, the mandatory criteria
require the petitioner to:
(1) demonstrate that it has been identified as an American
Indian entity on a substantially continuous basis since 1900;
(2) show that a predominant portion of the petitioning
group comprises a distinct community and has existed as a
community from historical times until the present;
(3) demonstrate that it has maintained political influence
or authority over its members as an autonomous entity from
historical times until the present;
(4) provide a copy of the group's present governing
document including its membership criteria;
(5) demonstrate that its membership consists of individuals
who descend from an historical Indian tribe or from historical
Indian tribes that combined and functioned as a single
autonomous political entity and provide a current membership
list;
(6) show that the membership of the petitioning group is
composed principally of persons who are not members of any
acknowledged North American Indian tribe; and
(7) demonstrate that neither the petitioner nor its members
are the subject of congressional legislation that has expressly
terminated or forbidden the Federal relationship.\23\
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\23\ 25 CFR 83.7
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Currently, the Lumbee are prohibited from pursuing federal
acknowledgment through this administrative process due to the
1956 Lumbee Act.\24\ The Lumbee Act denied eligibility for the
benefits and services available to Indians in accordance with
the former Federal Indian policy of termination. The effect of
the 1956 Lumbee Act was to both acknowledge and effectively
terminate the Lumbee at the same time.
---------------------------------------------------------------------------
\24\ See Pub. L. 84-570, Act of June 7, 1956, 70 Stat. 254.
---------------------------------------------------------------------------
Accordingly, I believe that the proper path for the Lumbee
acknowledgment is through legislation that would allow the
Lumbee an expedited review of their petition by the Department
of the Interior's Office of Federal Acknowledgment. The Office
of Federal Acknowledgment, and not Congress, is the appropriate
entity to determine whether this group's recognition is based
on history, culture and science, rather than politics alone. I
have, and will continue to support legislation that would allow
the Lumbee to complete the administrative review process to
ensure that recognition decisions are based solely on a
technical review process.
Changes in Existing Law
In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
H.R. 65, 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). Enactment of H.R. 65 would affect
no changes in existing law except the following amendments to
the Act of June 7, 1956:
Public Law 84-570
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 Lumber 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
Lumber 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 Acknowledgment. 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 acknowledgment
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 and budget 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 and budget 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 not less than 2 years after the date of the
enactment of this section.
SEC. 4. (a) Fee lands which the Tribe seeks to convey to
the United States to be held in trust shall be treated by the
Secretary of the Interior as ``on-reservation'' trust
acquisitions under part 151 of title 25 of the Code of Federal
Regulations (or a successor regulation) if such lands are
located within Robeson County, North Carolina.
(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
paragraph (1) 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 subsection 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.