[Senate Hearing 108-336]
[From the U.S. Government Publishing Office]
S. Hrg. 108-336
LUMBEE RECOGNITION
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
ON
S. 420
TO PROVIDE FOR THE ACKNOWLEDGMENT OF THE LUMBEE TRIBE OF NORTH CAROLINA
__________
SEPTEMBER 17, 2003
WASHINGTON, DC
89-476 U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
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COMMITTEE ON INDIAN AFFAIRS
BEN NIGHTHORSE CAMPBELL, Colorado, Chairman
DANIEL K. INOUYE, Hawaii, Vice Chairman
JOHN McCAIN, Arizona, KENT CONRAD, North Dakota
PETE V. DOMENICI, New Mexico HARRY REID, Nevada
CRAIG THOMAS, Wyoming DANIEL K. AKAKA, Hawaii
ORRIN G. HATCH, Utah BYRON L. DORGAN, North Dakota
JAMES M. INHOFE, Oklahoma TIM JOHNSON, South Dakota
GORDON SMITH, Oregon MARIA CANTWELL, Washington
LISA MURKOWSKI, Alaska
Paul Moorehead, Majority Staff Director/Chief Counsel
Patricia M. Zell, Minority Staff Director/Chief Counsel
(ii)
C O N T E N T S
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Page
S. 420, text of.................................................. 2
Statements:
Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado,
chairman, Committee on Indian Affairs...................... 1
Campisi, Jack, tribal historian, Lumbee Tribe, North Carolina 32
Dole, Hon. Elizabeth, U.S. Senator from North Carolina....... 12
Faleomavaega, Hon. Eni, U.S. Delegate from American Samoa.... 16
Hunt, Milton, chairman, Lumbee Tribe, North Carolina......... 23
Inouye, Hon. Daniel K., U.S. Senator from Hawaii, vice
chairman, Committee on Indian Affairs...................... 11
Locklear, Arlinda, tribal attorney, Lumbee Tribe, North
Carolina................................................... 36
Martin, Aurene, principal deputy assistant secretary, Indian
Affairs, Department of the Interior........................ 18
Martin, James T., executive director, United South and
Eastern Tribes, Nashville, TN.............................. 40
McIntyre, Hon. Mike, U.S. Representative from North Carolina. 14
Appendix
Prepared statements:
Campisi, Jack (with attachment).............................. 48
Hunt, Milton (with attachment)............................... 83
Locklear, Arlinda (with attachment).......................... 108
Martin, Aurene............................................... 45
Martin, James T.............................................. 131
Schierbeck, Helen Maynor, Member, Lumbee Tribe, North
Carolina (with attachment)................................. 141
Additional material submitted for the record:
Letters...................................................... 153
LUMBEE RECOGNITION
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WEDNESDAY, SEPTEMBER 17, 2003
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The committee met, pursuant to notice, at 10 a.m. in room
485, Senate Russell Building, Hon. Ben Nighthorse Campbell
(chairman of the committee) presiding.
Present: Senators Campbell, Inouye, and Cantwell.
STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM
COLORADO, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
The Chairman. Good morning. The committee will come to
order. This will be our first post-recess hearing. This morning
we will hear testimony on S. 420, the Lumbee Acknowledgement
Act of 2003, introduced by our colleague, Senator Dole, who is
with us, as is Congressman McIntyre. I understand that
Congressman Faleomavaega may be here also.
Let me proceed just for 1 minute here. We will hear
testimony from Senator Dole first, and then we will go to
Congressman McIntyre and then your colleague. At the conclusion
of that, we then go to the Administration witness because we
know people have tight schedules, but you are welcome to stay
here with us throughout the hearing if you would like, sit at
the dais or sit in the audience, whatever your preference is
will be fine with us.
S. 420 will amend the Federal statute relating to the
Lumbee Indians of North Carolina, enacted in the termination
period of the 1950's. If enacted, it will provide recognition
and benefits of recognition to the 50,000-plus member Lumbee
Tribe of North Carolina.
[Text of S. 420 follows:]
The Chairman. The act of 1956, as I understand it, was both
a recognition act and also a termination act at the same time.
Congress recognized the long history of the Lumbee Tribe and
individual Lumbees, but instead of welcoming the tribe into the
family of federally recognized tribes, Congress instead
basically terminated it. Also, in looking at some of the notes
that have been provided through staff, I noticed that there
have been a number of times that the Lumbees have been before
Congress, going clear back to the 1870's, so this is not the
first time they have been here on this issue.
It is an undisputed fact, I believe, that the Lumbees
descended from an historic Indian tribe, and their current
situation in terms of housing, health care, and education is
very, very poor. I have a number of areas that I would like to
explore with the witnesses, and certainly appreciate Senator
Dole's leadership on this issue here in the Senate.
With that, I would like to refer to my colleague and the
vice chairman, Senator Inouye, for any opening statement he may
have.
Senator Inouye. Thank you very much, Mr. Chairman.
STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII,
VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
Senator Inouye. Unfortunately, I have another hearing
scheduled for this moment, but I wanted to be here to welcome
Senator Dole and the members of the Lumbee Tribe who have
waited so very long for this day.
For more than a century, the Congress has been
deliberating, sometimes actively, sometimes not, on whether to
extend Federal recognition to the Lumbee Tribe. The first time
Congress had occasion to address the status of the Lumbee Tribe
was shortly after the State of North Carolina extended formal
recognition to the tribe in 1885. A few years later, in 1888,
the tribe submitted its first petition to the Congress for
recognition and assistance. The Congress referred the tribe's
petition to the Department of the Interior and the Commissioner
of Indian Affairs ultimately denied the tribe's request for
funding to support the education of tribal children; 11 years
later, following the Commissioner's determination, the first
bill to appropriate funds for the education of tribal children
was introduced in the Congress. Again, the Interior Department
recommended against Federal assistance for the tribe, and
thereafter in 1914 the Senate directed the Interior Secretary
to investigate the condition and the rights of Lumbee Indians
and to provide a report to the Congress.
Mr. Chairman, I will not go into the rest of the history of
the tribe's valiant and persevering efforts to achieve Federal
recognition. I am certain that will be done by Senator Dole and
the very capable witnesses who are here this morning. I just
wanted to assure the leadership and the members of the tribe
that I fully support your bid for Federal recognition, and I
will do everything that I can to assist Senator Dole and
Congressman McIntyre in securing the passage of S. 420.
I thank you very much, Mr. Chairman.
The Chairman. Thank you, Senator Inouye.
I might tell you, since this is the first time you have
appeared before our committee Senator Dole, Senator Inouye and
I have almost always spoken with one voice in our support for
Indian people in this country. His guidance to me before I
became chairman in the years he was the chairman have been just
invaluable to me. So I certainly appreciate his endorsement of
this bill and his support.
With that, why don't you go ahead?
STATEMENT OF HON. ELIZABETH DOLE, U.S. SENATOR FROM NORTH
CAROLINA
Senator Dole. Thank you very much, Mr. Chairman, for
holding this important hearing today. You have provided such
strong leadership on issues concerning Native Americans, and
you have truly been a visionary in this area, and all have
benefitted from your commitment, your perseverance, and your
dedications. So thank you for all that you do.
Let me thank Ranking Member, Senator Inouye. You have been
a champion as well, working for the betterment of your own
State's native people and improving the lives of all Native
Americans. I am deeply grateful to you both, and it is a
privilege to serve with both of you in the U.S. Senate.
I certainly want to thank the members of the Lumbee Tribe
who have traveled here in the face of Hurricane Isabel. We meet
today to focus on an issue that I made a top priority once I
arrived in the Senate, the terrible injustice that has been
done to the Lumbee Indians. Full Federal recognition for this
tribe has been unfairly denied for decades. We have a chance,
Mr. Chairman, to right this wrong in the United States Senate.
I am passionate about this matter, the subject of the first
legislation I submitted as a U.S. Senator, the bill before us
today.
In visiting with the Lumbees and the residents of Robeson
County, where most Lumbees live, one occasion in particular
stands out in my mind, a rally earlier this year with
Congressman Mike McIntyre, for whom I have great admiration. It
brought together the whole community with the common goal of
getting the Lumbees the recognition they rightfully deserve. I
am so impressed with the determination of the Lumbees. They are
a people of great pride and I am in awe of their steadfastness
on this issue, even after years of disappointments. Spending
time with them has invigorated me in my effort to end this
injustice.
Mr. Chairman, for more than a century the Lumbees have been
recognized as American Indians. North Carolina formally
recognized the tribe in 1885. It was just 3 years later, in
1888, that the tribe began what would become a long quest for
recognition and assistance from the Federal Government. There
have been numerous studies by the Department of the Interior,
beginning as early as 1913, then again in 1914, and yet again
in 1933. Each time, it has been determined that the Lumbees are
indeed an Indian tribe.
There are more than one-half dozen instances when
legislation was introduced, legislation which remained inactive
or was passed by only one body. Finally in 1956, Congress
passed the Lumbee bill which recognized the tribe, but there
was a caveat which brings us to this hearing today. That
legislation denied the tribe the benefits and privileges that
every other federally recognized tribe enjoys. This
discrimination must end. The Lumbees deserve full recognition
for their tribe, not a partial nod that ignores the history and
the efforts of so many ancestors.
I introduced S. 420 as my first bill in the U.S. Senate
because it is the right thing to do. It is the fair thing to
do. This legislation will reverse that 1956 decision by
Congress denying full recognition. Passage will allow the tribe
to receive much-needed assistance in areas like education,
health care, and economic development.
I know there are those who have argued and will do so again
today that the Lumbees should go through the Bureau of Indian
Affairs [BIA] for Federal recognition. That process is reserved
for tribes whose legitimacy must be established. That is not
the case with the Lumbees. In fact, the legitimacy of this
tribe has been established time and time again, dating back to
the late 1800's. The Federal Government has already spent the
money and concluded that the Lumbees are an Indian tribe
descended from the historic Cheraw Indians. There is no need to
waste the tribe's or the Government's time and money again.
Congress has never passed a special statute to send a tribe to
the administrative process.
It has also been documented by the General Accounting
Office that getting through the BIA can take years. If I may
quote from that 2001 GAO report:
Because of weaknesses in the recognition process, the basis
for BIA's tribal recognition decisions is not always clear, and
the length of time involved can be substantial.
That report says it may take up to 15 years to resolve
completed petitions, 15 years. The Lumbees have already waited
far too long. It is wrong to impose yet another lengthy delay
on this tribe. It has been over 100 years, Mr. Chairman. Let's
not make them wait another 15 years
Let us do what is fair, what is right, to resolve this
injustice. This tribe with 53,000 members is the largest tribe
east of the Mississippi and the largest non-federally
recognized tribe in the entire United States of America. The
Lumbees have contributed so much not just to North Carolina's
heritage, but to our entire Nation. They deserve full
recognition now.
For weeks, I have heard about the excitement building among
the Lumbees because of the opportunity to come here and to make
their case once again. I spoke earlier of the Lumbees'
dedication to this issue and how their passion continues to
inspire me. Among us today is Emma Lee Locklear whose
grandfather, Hezekiah Locklear, signed the petition for Lumbee
recognition in 1888. Emma is here to continue the family's
tradition of fighting for the rights of Lumbees, and I am
determined to fight with her for what is right. I want to ask
Emma to stand 1 moment so that we can recognize here.
[Applause.]
Senator Dole. I urge this committee, Mr. Chairman, to act
now. Pass S. 420 so that Emma's work and that of her
grandfather so many years ago will not have been in vain.
Congressman Mike McIntyre is a dear friend and colleague
from North Carolina who is sponsor of the Lumbee bill in the
House. Mike has been such a champion of the Lumbee cause and
has done an outstanding job in bringing all the parties
together on this. I am so very pleased to work with him.
Following Congressman McIntyre and Congressman
Faleomavaega, you will hear from three additional individuals
who are truly dedicated to the cause of the Lumbees. Milton
Hunt has become a dear friend through our work on recognition
for the Lumbees. He is chairman of the tribe and mayor of
Pembroke, and has led the way in rallying the entire community
around full recognition for the Lumbees. Arlinda Locklear is an
attorney with Patton, Boggs and is a nationally recognized
expert in the area of Indian tribes. She became the first
Native American woman to appear before the U.S. Supreme Court
in 1984, and she is a member of the Lumbee Tribe. And Dr. Jack
Campisi is an expert on Lumbee issues after having spent long
hours researching the Lumbees while living among them, right
there in Robeson County. He is a professor at Wellesley College
and has done extensive research on tribal communities. They
will answer any technical questions that you may have.
Again, Mr. Chairman, thank you very much for the privilege
of being here today. Thank you.
The Chairman. Thank you for that very fine statement. I
certainly commend all the people that have come all the way
from North Carolina. I was watching the Weather Channel just a
little while ago and it does not look good for the Outer Banks
and further inland, too.
We will now go to Congressman Mike McIntyre. Thank you for
appearing, Mike, and we will then continue with Eni
Faleomavaega.
STATEMENT OF HON. MIKE McINTYRE, U.S. REPRESENTATIVE FROM NORTH
CAROLINA
Mr. McIntyre. Thank you, Senator.
Mr. Chairman, Ranking Member Inouye, and members of the
committee, thank you for the opportunity to testify before you
today regarding Federal recognition for the Lumbee Indians. And
a special thanks to my friends and North Carolina colleagues,
Senator Dole and Senator Edwards, and their staffs for their
work and leadership on this critical issue. I especially thank
Mrs. Dole for requesting this hearing so that we could move
ahead on this process. I am also grateful to my colleague Eni
Faleomavaega, who for many years has worked on Indian
recognition efforts over in the House.
In the late 1500's when English ships landed on the shores
of the Roanoke Island, right in the area where the hurricane is
now headed, on the North Carolina coast, the Englishmen
discovered Native Americans. Included among those Native
Americans were both Cheraw and Pee Dee Indians who are direct
ancestors of the Lumbee Indians. Later, in 1888, the Lumbees
made their first effort at gaining Federal recognition. For at
least 500 years, Lumbee Indians have been inhabitants of this
land, and over half the time that our country has been in
existence, 115 of the last 227 years, the Lumbee Indians have
been seeking recognition. Over one-half the history of our
Nation, they have been seeking this recognition and respect
that they so well deserve.
As the largest tribe east of the Mississippi and the
largest non-recognized tribe in America, it is unfathomable to
think that this tribe of almost 55,000 people has never been
fully recognized by our own government. Mr. Chairman, indeed
the time for Lumbee recognition has come. I was born and reared
in Robeson County, North Carolina, the primary home of the
Lumbee people. I go home almost every weekend and have the high
honor of representing approximately 40,000 Lumbees who live in
my home county. In fact, there are more Lumbees in Robeson
County than any other racial or ethnic group. The Lumbee
Indians, many of whom are here in the audience today, are my
friends, many of whom I have known all my life.
Senator, as you pointed out, so many have traveled today
with an impending storm coming, and will be leaving soon
hereafter. With the Senators' indulgence, I would just like to
honor them by asking them to stand if they have come here
today. Would all the Lumbees please stand?
[Applause.]
The Chairman. Nice crowd.
Mr. McIntyre. Thank you very much.
The Chairman. I hope their journey home will be safe from
this impending storm.
Mr. McIntyre. Thank you, sir.
The Lumbees are important to the success of everyday life
in Southeastern North Carolina, and their contributions to our
society are numerous and endless, from medicine and law to
business and banking, from the farms and factories to the
schools and the churches, from government military and
community service to entertainment and athletic
accomplishments. The Lumbees have made tremendous contributions
on the county, State and indeed the national level. In fact in
my home county alone, my sheriff, my clerk of court, registrar
of deeds, chairman of the county commissioners, and indeed my
representative in the State legislature, as well as two of my
district court judges and one of my superior court judges are
all Lumbee Indians.
Mr. Chairman, those contributions are being recognized by
my colleagues over in the House through their support of H.R.
898, legislation that I have introduced to grant the Lumbees
Federal recognition. I am pleased to report today to the Senate
Committee on Indian Affairs that 225 members of the U.S. House,
on a bipartisan basis from every region, both sexes, every
race, have cosponsored Lumbee recognition. The last time a vote
occurred on the floor of the U.S. House to recognize the
Lumbees, it had 20 sponsors. Today, we have more than 10 times
that number, in fact more than 11 times that number of
cosponsors.
The Lumbee contributions are being recognized at home also
by both the public and the private sector. Mr. Chairman, from
city councils to county commissions to chambers of commerce to
our local medical center, to other organizations throughout
North Carolina, we have letters of endorsement and resolutions
that have been passed by these public and private bodies to
seek recognition for the Lumbees.
Mr. Chairman, in conclusion let me urge this committee, and
in fact all of the U.S. Congress, to proceed with recognition
for the Lumbee Indians. Justice delayed is justice denied. For
too many years there have been too many delays. As you will
hear from the next panel that will follow Mr. Faleomavaega, the
evidence is clear, cogent, and convincing. It indeed is time to
say yes to dignity and decency, yes to fundamental fairness,
yes to respect, yes to honor, indeed yes to Federal
recognition.
It is time for discrimination to end and recognition to
begin.
Thank you for this opportunity to testify. Mr. Chairman, I
look forward to working with you, my colleagues Mrs. Dole and
others here in the Senate, and also with this committee, with
Mr. Edwards of North Carolina, with my colleagues from North
Carolina and the other sponsors from across the Nation, for
this long overdue recognition.
May God grant that justice will finally be done, and with
your help I am confident it will.
Thank you, Mr. Chairman.
[Applause.]
The Chairman. Thank you.
Congressman McIntyre, where is the House bill now? What is
the disposition of the bill?
Mr. McIntyre. It is pending in the House Resources
Committee.
The Chairman. It has not been heard yet?
Mr. McIntyre. Not yet, sir. You are first. [Laughter.]
The Chairman. We have a number of letters of support, and
you mentioned some of the support from people who are in
office. I know Senator Edwards has been rather busy lately, but
I asked staff before we came in if we have anything from him.
We do not have anything on record. You might ask him if he
would submit a letter of support for the committee for our
records.
Now, we go to a really terrific friend of mine, Congressman
Faleomavaega. A lot of people think that I am the only Native
American around here, but he is an honest-to-gosh Native
American, too, being a chief of the Samoan Tribe. He has always
been very active in the Native American Caucus, and someone we
could always rely on to help Indian people.
Eni, nice to see you here.
STATEMENT OF HON. ENI FALEOMAVAEGA, U.S. DELEGATE FROM AMERICAN
SAMOA
Mr. Faleomavaega. Mr. Chairman, I thank you for that kind
recognition. There is probably a sense of curiosity from some
of the people here in the audience as to what in the world a
member of the Samoan Tribe is doing here, living 10,000 miles
away from Washington, DC.
First of all, Mr. Chairman, I want to express my most
sincere appreciation to the leadership that Senator Dole and
her colleagues have shown, especially to my good friend and
colleague, Mr. McIntyre.
Excuse my being very emotional about this issue. For the
past 12 years I have had the privilege of working very closely
with the members of the Lumbee Nation. I have felt such
disappointment over the years, feeling that I had failed in my
efforts in trying to erase the tremendous injustice that has
been done to the Lumbee Nation.
Mr. Chairman, I believe it is important to note that the
policy of the United States has been terribly inconsistent with
regard to the first Americans, the original inhabitants of this
Nation. Our first policy was to do battle with them. General
Sheridan epitomized the prevailing opinion at the time in 1869
when he said, ``The only good Indians I ever saw were dead.''
Our next policy was that of assimilation. During this
period, the United States attempted to make Indians part of
mainstream America, forcing the Indians to relinquish ties to
their cultures and their way of life. Since the 1950's, this
country adopted the policy of termination, followed by
reinstatement of the current policy of administrative
recognition.
Throughout this entire period, the Lumbee have fought for
Federal recognition, having submitted about 14 petitions. This
is the 15th time now, Mr. Chairman. I hope that we will finally
put this matter to rest for this Nation that has tried in every
possible way to comply with our regulations and rules. For over
100 years they have been denied the recognition that they so
deserve.
I should also mention that many of the Lumbee men and women
serve honorably in the military. They have spilled their blood
and have died in defense of this Nation, and still the Congress
and the Federal Government has refused to give them the full
recognition as they deserve. There may be some members of the
Administration, Mr. Chairman, that will say that the Lumbee
people have not complied with the rules and regulations that
have been established in the 1970's. Let me tell you something.
We held oversight hearings about 7 or 8 years ago about the
current policy of recognition as is done by administrative
procedure. It is not done by congressional statute. I will
never forget the day that even the man who wrote the
regulations on administrative recognition of Native Americans
testified and confessed that even he would not have been able
to provide any sense of reasonableness and fairness as to how
an Indian tribe could be recognized through the current
administrative procedures.
I must say, Mr. Chairman, recognition is long overdue.
Again, I cannot thank Senator Dole and my good friend Mr.
McIntyre enough for their tremendous hard work in bringing this
legislation forward on a bipartisan basis. We must also
remember that the Congress still has the ultimate authority and
its own discretion as to whether or not to grant Federal
recognition to any tribe that petitions the Congress.
I think this is a very historical day for the Lumbee
people. I sincerely hope, Mr. Chairman, that your committee
will give favorable consideration to this legislation, as we on
the House side will do everything we can to make this year
truly a year rectifying a history of pain and suffering. It is
bad enough to say that you are not an Indian, a first American,
but when you are subjected to full examinations to say what
kind of teeth you have in order to determine whether or not you
are Indian, it is the most insulting thing that I have ever
heard. Some of the Lumbee people have had to testify in our
committee that these are the kinds of procedures that they had
to go through. Where do you get the money to pay the attorneys
and the anthropologists? It is unbelievable what we have done
in the recognition process. I sincerely hope, Mr. Chairman and
I look forward in working with you on this so we can improve
the current procedures. Maybe we have to do it statutorily and
not by the administrative process.
With that, Mr. Chairman, again I want to thank Senator Dole
for the tremendous leadership that she has shown in working on
this on a bipartisan basis. This is not a partisan issue. This
is not a Republican or a Democrat issue. This is an issue of
doing something about what has been wrong for these people.
They deserve recognition, Mr. Chairman, and I sincerely hope
that your committee will give favorable consideration to this
proposed bill.
Thank you, Mr. Chairman.
The Chairman. Thank you, Eni.
[Applause.]
The Chairman. This is not a partisan committee, either. We
pride ourselves in making sure that it is non-partisan. You
know as well as I do, being here a long time, this is a tough
place, but I have to take exception to one statement you made
in your discourse there. Nobody has ever believed you have ever
failed Indian people. Your efforts are well known to them and
well known to this Congress, too. So I want to correct that for
the record. You have been an absolute stalwart leader of the
issues here.
As I mentioned before, you are certainly welcome to sit at
the dais or stay, depending on your schedule. We will now go to
Aurene Martin, the principal deputy assistant secretary of
Indian Affairs from the Department of the Interior.
Ms. Martin, welcome before the committee, a former staffer
here on the committee. We still miss your hard work when you
were with us here. I understand we now have a nominee that we
will be hearing shortly for the assistant secretary position,
but I know that you have done a terrific job as the acting
assistant secretary and will continue to do so until there is a
new appointee.
With that, why don't you go ahead and proceed.
STATEMENT OF AURENE M. MARTIN, PRINCIPAL DEPUTY ASSISTANT
SECRETARY FOR INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR
Ms. Martin. Thank you. Good morning, Mr. Chairman. My name
is Aurene Martin and I am the principal deputy assistant
secretary of Indian affairs at the Department of the Interior.
I am here today to present the views of the Administration
on S. 420, the Lumbee Acknowledgement Act of 2003. The
recognition of a sovereign is one of the most solemn and
important responsibilities delegated to the Secretary of
Interior. Federal acknowledgement of an Indian tribe
establishes the government-to-government relationship between
the United States and the tribe and carries with it certain
immunities and privileges. It also establishes responsibilities
for the Department of the Interior with respect to the tribe.
The Department has promulgated rules which outline the
process that must be followed and has established criteria that
a petitioner must meet to become acknowledged. In order to
become acknowledged, a petitioner must meet seven criteria. The
petitioner must demonstrate that it has been identified as an
American Indian entity on a substantially continuous basis
since 1900. The petitioner must also 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.
Third, the petitioner must demonstrate that it has
maintained political influence or authority over its members as
an autonomous entity from historical times to the present. The
petitioner must also provide a copy of the group's present
governing document, including its membership criteria. The
petitioner must also demonstrate that its membership consists
of individuals who descend from an historical Indian tribe or
from a group of historical Indian tribes that combined and
functioned as a single autonomous political entity, and provide
a current membership list.
The petitioner must also show that the membership of the
petitioning group is comprised principally of persons who are
not members of any acknowledged North American Indian tribe.
Finally, the petitioner must also demonstrate that neither the
petitioner or its members are the subject of congressional
legislation that expressly prohibits, terminates or forbids the
Federal relationship.
If a petitioner presents evidence which meets all seven of
these criteria, it will be acknowledged.
While Congress clearly possesses the power to recognize
tribes, the Department has traditionally opposed congressional
attempts to recognize tribal groups, largely because the
criteria and process the Department has established provide for
thorough analysis and deliberation and consistency in
decisionmaking.
Unfortunately, the Lumbee are unable to avail themselves of
the Department's acknowledgement process because they have been
barred by participation in Federal programs designed to serve
Indians by the Act of June 7, 1956. That act, while clearly
identifying the Lumbee as Indian persons, specifically
prohibited them from accessing services and statutes available
to Indians because of their status as Indians.
Because the Department has interpreted this law as
forbidding them from participating in the Federal
acknowledgment process, it recognizes that some legislation is
needed, given the unique status of the Lumbee. Such legislation
could authorize the Lumbee to participate in the Department's
acknowledgement process and the Department stands ready to
assist in drafting such legislation.
If, however, Congress determines to recognize the Lumbee
legislatively, there are a number of issues the Department
believes should be addressed. The Department is currently
devoting a great deal of time and effort to effecting trust
reform and participating in litigation whose very subject is
the trust relationship. Both the Department and the courts are
attempting to define the trust relationship and the specific
duties and responsibilities of the United States with regard to
tribes. Much of the confusion over the role of the United
States as trustee stems from the lack of clear guidance as to
what the exact roles and responsibilities of both the trustee
and the beneficiary are.
The Department, therefore, recommends setting out the
details of this relationship from the time it is created,
either through legislation, or through some other trust
instrument.
Also, this bill designates Robeson County as the tribes
reservation and several surrounding counties as a service area.
Congress has typically identified service areas for a tribe
while the initial reservation is identified later by parcels of
land acquired in trust on behalf of the tribe. While S. 420
specifically confers jurisdiction on the State within Robeson
County, the reservation designation still raises some issues
with respect to the ability of the tribe to zone in the county,
make other land-use decisions, and exercise an ability to tax
within the county.
Finally, the Department has concerns with the provision
requiring the secretary to verify tribal membership. In our
experience, this is a time-consuming and work-intensive
process. It has taken several years to complete with even
smaller groups. Typically, it requires a review of every
individual's genealogical history, tracing it from the present
back to a person who was a member of the historical tribe from
which the person is descended.
In the 1980's, the Department received a document
identifying the membership of the Lumbee at over 27,000
persons. Current estimates place the membership in excess of
40,000. The Office of Federal Acknowledgement estimates, based
on our current staff levels and the number of persons involved
in the membership, that verification of the membership will
take several years and that it cannot be effected in less than
1 year.
The Department is willing to work with the committee to
work out these issues. At a minimum, however, we support the
amendment of the 1956 Act to authorize the Lumbee to
participate in the Department's acknowledgment process.
This concludes my testimony this morning. I have provided a
written statement which I would request be made part of the
record.
The Chairman. Without objection, your complete testimony
will be in the record.
[Prepared statement of Ms. Martin appears in appendix.]
The Chairman. Let me ask you a few questions, if I may,
before you have to leave.
Have you visited this area, Robeson County, yourself by any
chance, what the Lumbees would call their homeland?
Ms. Martin. No; I have not.
The Chairman. I probably ought to ask them. So you do not
know how much of that land is in private ownership now, would
you?
Ms. Martin. I think that all of it is in private ownership,
and none of it is in trust.
The Chairman. Well, I will ask them, because I was
interested in knowing if it is non-Indian-owned land or Indian-
owned land or what, but I will ask them about it.
Now, as I understand your testimony, as Congressman
McIntyre said, what we are basically dealing with are the
regulations, not statutes. As I understand you, they cannot go
through the BAR process because they were barred from that by
the 1956 Act. Is that correct?
Ms. Martin. Yes.
The Chairman. So it seems to me we have to do one or two
things, either change the BAR or exempt the tribe, one of the
two, otherwise they are never going to get from A to B. We have
to make some changes.
I introduced a bill, S. 297, that you might want to look
at. Hopefully, we are going to do at least one hearing on it
before we adjourn this year. Basically, that is what it does is
try and ferret through some of the problems with BAR and see if
we can't streamline it to make it a little easier for those
people who have just run into this brick wall of recognition.
From a historical perspective, can you give the committee
perhaps some background on what legal implications there would
be if we passed this act?
Ms. Martin. The tribe has petitioned in the past to become
a tribe through the BAR process. I think by recognizing them
legislatively, I have identified a number of concerns.
Primarily, we have some concerns with regard to what the
jurisdictional implications might be, although the bill clearly
confers criminal and civil jurisdiction on the State. There are
a number of powers that as a sovereign and recognizing the
tribe as a sovereign, they might still exercise within the
county. It is unclear whether the intent is there to allow the
tribe to go ahead and exercise those powers or not.
The other concern we have, and this is with regard to our
ongoing efforts at trust reform, one of the most confusing
things about the trust relationship is that it is not
identified in a single document. The parameters of it are not
laid out as one, two, three, or A, B, C. In creating that new
relationship with any tribe, one of the things that we think is
important moving forward is to try to identify the parameters
of that relationship when we create it.
Finally, we think that there is a significant amount of
work that needs to be done with verifying the membership and
doing research with regard to the original historical tribe
from which the members are descended. That will be a
considerable amount of work as well.
The Chairman. Okay, thank you.
I understand that in 1988 and again in the 1950's, one of
the rationales, and I know this was long before your tenure,
one of the rationales to deny recognition was what was called
insufficient funds, which in this day and age, it seems to me
that insufficient funds should not fly in the face of justice.
We have funds to rebuild a nation in Iraq. It seems to me we
ought to be able to find some funds.
[Applause.]
The Chairman. I might mention to the audience you are all
certain welcome here, but I would ask you to keep the cheering,
boos or anything else down to a minimum. We try to get through
this as well as we can. I just mentioned that because I know we
spend a lot of money on nation rebuilding.
Does the BAR criteria include a requirement that the United
States have sufficient funds?
Ms. Martin. No; the BAR criteria simply sets out a
regulatory process by which we recognize tribes.
The Chairman. I see.
Has the United States ever refused to recognize a newly
independent state overseas or any foreign government because of
insufficient funds? I will answer it for you. No. We have not.
Has any other tribe that you know of been denied the process
because of insufficient funds?
Ms. Martin. No; not that I am aware of. I think the unique
circumstance here is that the Lumbee are a very large tribe. We
estimate their membership to be around 40,000 to 50,000.
The Chairman. I even heard the number 55,000 a while ago.
Along that line, do you have any kind of an estimate about what
this would cost in terms of BIA, Indian Health Service,
whatever, the Federal Government should provide if this bill
was passed? Is there a ballpark figure of cost to the Federal
Government?
Ms. Martin. We were not able to pull those numbers together
in time for today's hearing, but the sheer numbers that we are
talking about would make the Lumbee the third largest tribe in
the United States. In the past, we have loosely estimated the
cost of trying to create a similar structure of services for
the Lumbee at approximately 15 to 20 percent of then-existing
budgets.
The Chairman. Was that 15 to 20 percent of the existing
budget?
Ms. Martin. I do not have any documentation to support that
at this time.
The Chairman. Could you try to find some of that and
provide it for the committee, some of those numbers?
Ms. Martin. Yes, sir.
The Chairman. The BIA position in 1956, the last time the
solicitor weighed in, I understand that the solicitor did
recommend some changes. Is that true, or do you know?
Ms. Martin. To the 1956 act?
The Chairman. Yes.
Ms. Martin. Yes; actually, the language that has been at
issue in almost every bill addressing the Lumbee was
recommended by the Department of the Interior, and that is the
final clause in the bill which prohibits the Lumbee from
accessing services for Indians based on their status as
Indians.
The Chairman. Whenever we deal with a new tribe seeking
recognition, we get into things you have touched on,
jurisdiction, land in trust, membership. It is always difficult
for a newly recognized tribe or even some that were terminated
that we are trying to reestablish. Do you have any concerns
dealing with rights granted under S. 420 to the Lumbee Tribe to
take land into trust?
You mentioned jurisdiction. I understand there could be a
problem there.
Ms. Martin. The bill confers that jurisdiction on the State
and allows for the tribe to transfer, and the State to agree to
transfer jurisdiction back to the tribe. But again, I think our
concern would be with some of the other exercises of
sovereignty that the tribe may want to undertake once it is
recognized.
The Chairman. And maybe last, I have heard numbers of
40,000 up to 55,000 members. Does the Department have any
comments on how they establish their base membership rule?
Ms. Martin. At the present time, we do not have a current
copy of the constitution or any of the documents that establish
membership for the tribe. That would be something that we would
have to get and look at through the verification process, which
as I stated earlier, could take a significant amount of time.
The Chairman. Okay. I thank you. I have no further
questions, but Senator Inouye may, and if he does I am sure he
will submit them in writing. If you could answer those, we
would certainly appreciate it.
Thank you for appearing today, Aurene.
Ms. Martin. Thank you very much.
The Chairman. We will now move to our only panel, that will
be panel two, Milton Hunt, chairman of the Lumbee Tribe; Jack
Campisi, the tribal historian of the Lumbee Tribe, North
Carolina, who resides in New York; Arlinda Locklear, tribal
attorney for the Lumbee; and Tim Martin, executive director of
the United South and Eastern Tribes, Inc.
We will proceed in that order. If you would like to submit
your complete written testimony, that will be included in the
record. If you would like to abbreviate your written testimony,
that would be just fine.
We will start with Chairman Hunt first.
STATEMENT OF MILTON HUNT, CHAIRMAN, LUMBEE TRIBE, NORTH
CAROLINA
Mr.Hunt. Thank you, Mr. Chairman.
I want to at this time ask you to enter this into the
record.
The Chairman. It will be included in the record.
Mr. Hunt. I want to thank you for doing that. I want to
thank the committee for hosting this today and giving us some
opportunity to come here and talk to you about our efforts on
Federal recognition for the Lumbee Tribe.
I also want to thank Senator Dole, who introduced our
legislation on the Senate side, and Congressman McIntyre on the
House side, and Senator Edwards and all the other cosponsors we
have on the House side.
We certainly appreciate all the efforts that they have made
on our behalf, and we look forward to working with them in the
future. We certainly cherish their support.
I want to start out by saying that we have heard the year
1888 talked about here today a couple of times. I want to start
back with that and talk about it. In 1888, Everette Sampson,
along with other leaders in the Lumbee community, signed a
petition and delivered it to Washington to ask for Federal
recognition for our people. At that time, we were known as the
Croatan Indians of Robeson County.
We also asked for educational help, because in 1887 the
Indian Normal School had been established. You must keep in
mind from 1835 until 1885 in Robeson County, an Indian could
not go to public school. We were barred from going to public
schools. So we came out of a 50-year blackout period in 1885
when the State recognized us. But they appropriated only enough
money to fund teachers for 2 years. So that was the reason that
this group of people came to Washington in 1888 to ask for
help, not only for recognition, but for help in our schools.
Those schools had been established to teach our kids and
even young adults, who would then go out in the community and
teach others to learn the basic skills. This was started with
an appropriation from the State of $500, and teachers for 2
years. The tribe donated the land. They also raised the
additional part of the money to put the first building there.
That is the beginning of UNCP, which is now a university campus
with 4,800 enrolled students that are housed in Pembroke. That
was the beginning of that university. It began as Indian Normal
School to educate our Indian students that did not have an
opportunity for 50 years to be educated.
We have continuously been able to introduce, I have heard
it talked about 14 bills being introduced over the years to
have us recognized, but there have been nine studies. No study
has ever been done that came back that said that we were not
Indians. Every study is that. In the most demeaning study,
which was the last one done, when they came into the
communities in the 1930's and they measured their cheek bones
and the separation in their eyes and so forth like that, that
was a demeaning study that was done on our people, and a lot of
our people did not participate in that.
So we have studies with that done. We have been studied to
death. It is time for action. We ask you to help us help
ourselves. We need recognition for the Lumbee Tribe. It is very
simple. In 1956 when the Act was passed, they gave it to us in
one hand and they took it away in the other hand. I was a young
fellow at that time. I can remember. Pembroke is the center of
the Indian activity in Robeson County. It is a small town of
about 3,000 people now, but in 1956 we had a parade and a
festival to celebrate the gaining of Federal recognition, not
knowing that it was being taken away from us at the same time.
We were very, very upbeat at that time. Can you imagine what
happened in the Indian community after that? It was a complete
let-down. There may be people in this group here today that
would attest to that.
Everette Sampson was my great-grandfather. He was one of
the 48 signers of the petition in 1888, along with his father
William ahead of him. So a lot of our families have been
involved. Many of these folks that are here today to show their
support for Federal recognition, I am sure many of their
families were involved in the signing and helping to get
Federal recognition started. We certainly appreciate their
efforts to come up here and support us at this today. We are
doing everything that we know how to do.
Like I said, we have been studied to death. We did
everything that we know to do. The year 1956 was a turning
point. You must remember that when Congress recognized us, then
they took it away from us, they did another tribe the same way
at the same time. Since then, the government has gone back and
righted that wrong, and they have since given that other tribe
their recognition. Don't you think it would be fair for us to
be recognized the same way? That is all we are asking, for
fairness. We want people to be fair.
Our tribal government operates under a constitution now. We
have three parts of government. The government is working for
us and we are moving toward doing the things that we need to do
to help our people. We want to continue down that road of
helping to make sure that the Lumbees of Robeson and adjoining
counties are taken care of and that their needs and their
efforts are looked at and accepted. But we want to make sure
that my grandchildren will not be up here 100 years from now
and saying their grandfather came up here and talked about
this. It is time that Federal recognition for Lumbees came to
pass.
So I would hope and pray that you would have it in your
heart to help us make sure that this happens for the Lumbee
Tribe.
Thank you very much.
[Prepared statement of Mr. Hunt appears in appendix.]
The Chairman. Thank you.
Some of us have it in our heart. We have to get it into
everybody else's heart around this place.
Normally, we hear from the whole panel before we ask
questions, but Senator Cantwell is here, so I think I will just
go ahead and start asking a few one-by-one so that she can also
participate in case she has to leave.
Chairman Hunt, let me start with a couple of questions for
you. You mentioned you have been studied to death. It is a sad
commentary, unfortunately, with the American government that
sometimes they killed Indians to do the studies afterwards. You
probably know that the history of the U.S. Government toward
Indian people has not been, you might say, of a sterling
character.
You did mention another tribe where their status was taken
away and then recognition was given back. I asked who that was?
Tiwas in Texas. Yes, I am familiar with them. You mentioned
that your youngsters for 50 years did not have the opportunity
to attend any school, and that the State recognized the tribe
in 1885. During that 50-year time, how did you educate your
youngsters?
Mr. Hunt. I think it was done basically on homesites. You
had teachers, people that may have set up a little classroom.
Basically, our people did not get educated. It is just that
simple. We went through a 50-year blackout period when there
was not must education.
The Chairman. Do you have any idea what the tribal numbers
were in those days?
Mr. Hunt. I really don't, it being 100 years ago.
The Chairman. I am always interested, very frankly, in
Indian people, the difficulty they find themselves in now
between modern-day types of teaching and traditional ways of
teaching their cultural values. Do you know if during that 50-
year time or even later if the things that we consider
traditional cultural values such as language and dance and song
and music and all the stories and all that was kept alive?
Mr. Hunt. As a matter of fact, I can trace back, the last
speaker that we spoke our language. His name is Randall
Locklear. He is from out of my family.
The Chairman. That is a familiar name.
Mr. Hunt. We can attest to him in the early 1900's. We have
testimony to that fact, from some of his relatives.
The Chairman. Are there any documents now that have records
of what might be considered an original language?
Mr. Hunt. I can't answer that. Arlinda will have that.
Ms. Locklear. If I may, Mr. Chairman.
The Chairman. Yes; please.
Ms. Locklear. We were studied by a well-known linguist in
the early 1940's, Vine Deloria's aunt, in fact, visited our
community and is said to have recorded certain words of the
original language of the Lumbee people.
The Chairman. There were several linguistic groups in
American Indians. What was it related to? Was it Siouan?
Ms. Locklear. We are Siouan speaking.
The Chairman. Siouan speaking.
Ms. Locklear. Yes, sir.
The Chairman. I understand from your testimony, your tribe
currently has a membership roll, and I have heard this number
from 40,000 to 55,000. How many members are there on the roll?
Mr. Hunt. Enrolled 54,000.
The Chairman. 54,000. And what is your criteria? Some
tribes have lineal descendancy; some have blood quantum. There
are a number of other ways.
Mr. Hunt. We have a source document requirement and a
contact requirement.
The Chairman. Would you explain that to the committee? A
source document, what does that mean?
Ms. Locklear. If I may, Mr. Chairman?
The Chairman. Yes; go ahead.
Ms. Locklear. There are two basic membership requirements.
The source documents that the Chairman refers to consist of a
set of documents around the period of 1900 which identifies
partial lists of our members at that time. These include
Federal Indian census records and school records which are
known by our community as the Blood Committee records. These
committees were vested under State law with the authority to
determine the eligibility of children to enroll in all Lumbee
schools. They maintained records for that purpose. Those, plus
church records, because most of our churches are 100 percent
Indian.
Those documents are the base documents from which an
individual must prove descent to apply for membership.
The Chairman. So it is a little like the Cherokees, if they
prove descent it is not based on blood quantum, then. They just
have to prove descent?
Ms. Locklear. There is an additional requirement. We do not
have a blood quantum requirement because blood quantum records
have never been maintained on our people. However, there is a
tribal contact requirement. As that, as translated in our
community, basically means an individual who applies must be
known to the community. His or her family must be in the
community and be known to the tribe or else that person is not
allowed to enroll.
The Chairman. Wilma Mankiller of the Cherokees told me a
few years ago when she was chairman they were getting 1,400
requests per month for enrollment with the Cherokees from
people in Canada and Alaska and South America and everywhere
else. Do you have that problem?
Ms. Locklear. We have had similar problems. Yes, Mr.
Chairman, there is a group in California that purports to sell
Lumbee Nation membership cards and they are not authentic.
The Chairman. Yes; back to the chairman, and since you
already chimed in Arlinda, you might wish to again, would you
be agreeable to having the BIA consult with you in clarifying
your membership criteria and researching those who might be
eligible for membership?
Mr. Hunt. I always turn to Arlinda and ask her.
The Chairman. Okay, let's turn to Arlinda.
Ms. Locklear. There is one fundamental rule that would be
very important to us, Mr. Chairman, and that is as with all
tribes we would expect to have our right to determine our own
membership criteria respected by the Department. Given that
rule, however, we would be happy to work with the Department of
the Interior to establish a process for the Department to
verify that those individuals who are enrolled actually meet
the tribe's membership criteria.
The Chairman. I am told that the Lumbees are descended from
the Cheraw Indians, but at one time it appeared that they were
related somehow to the Cherokees or the Croatans, and I am not
even familiar with that tribe. When did that change, or what is
the connection now between these other groups?
Ms. Locklear. Those were designations under State law, Mr.
Chairman. Those were not names that the tribe itself adopted.
The tribe was first recognized by the State in 1885 by the name
of the Croatan Tribe. That was changed in 1913 to the Cherokees
of Robeson County. The tribe itself was dissatisfied with that
name and sought a name change. A referendum was held in 1952
among the Lumbees, and for the first time the tribe itself
indicated to the State that it wanted the name ``Lumbee'' to be
adopted. As a result in 1953, legislation to do that was
enacted by the State.
The Chairman. Most tribes, they don't call themselves what
everybody else calls them, as you know.
Ms. Locklear. That is correct.
The Chairman. In the other world, they call them the Sioux,
but the Sioux people all themselves Lakota, as you know. Our
people call themselves Sisitas, not the Cheyenne. Is ``Lumbee''
a name that is from a tribal reference?
Ms. Locklear. The simplest way to refer to that is to point
to the picture here. This is a picture of the Lumber River
where our people have always resided.
The Chairman. The Lumber River.
Ms. Locklear. The Lumber River. The name ``Lumbee'' is
derived from that. In early colonial records, the Lumber River
was known as Drowning Creek. It was changed by State law in
1807 to the Lumber River. The earliest documentation of the
Cheraw Tribe shows them residing on Drowning Creek where the
Lumbee people still reside today under the name ``Lumbee.''
The Chairman. Do the Lumbee have a word in their own
language for themselves, like with some tribes? If you
interpret what they call themselves to English, like the Dinae
for Navajo, it means ``the people.'' Is there a word for that
in Lumbee?
Ms. Locklear. We have no surviving language. Unfortunately,
we have lost those words.
The Chairman. I understand. Unfortunately, a lot of other
tribes have, too, as you probably know.
The Lumbees adopted a constitution in November 2001, just 2
years ago, and yet apparently they have been operating as some
kind of a political unit. Why so late in adopting a
constitution?
Go ahead, Mr. Chairman.
Mr. Hunt. I will have to give you a long answer to that,
Mr. Chairman.
The Chairman. Can you do that in short sentences?
[Laughter.]
Mr. Hunt. That came about through several methods. We had
an organization that represented Lumbees for about 30 years.
The new tribal government was formed by a commission and a
referendum of the people in 2000. We had an election of all our
people, and elected a new tribal government. I am the first
elected chairperson of that committee.
It was just a long time coming.
The Chairman. In that tribal constitution, you have an
independent court, as most tribes do.
Mr. Hunt. We do. We have three branches of government,
legislative and executive and judicial branch. We do.
The Chairman. I see. Let me move on a little bit. We know
the BAR process is really complicated, and in some cases takes
years to get through it. Earlier you heard me say we have got
to change the BAR process or go around it somehow. We have to
do something about it. We know that. If the BAR process was
made available to the Lumbees, would you be supportive of
seeking recognition through that route, or have you kind of
given up on them?
Mr. Hunt. Arlinda.
Ms. Locklear. It is more the latter, Mr. Chairman. We have
had this experience with the Department of Interior for more
than 100 years now, and I dare say that this tribe would be
recognized today had it not been for the Department's
longstanding opposition to recognition of the tribe.
Recently, the Department has even changed its position with
regard to the ancestry of the Lumbee people. In 1934, the
Department testified to Congress that the Lumbee people were
indeed Cheraw Indians. Now, the Department will say there needs
to be more documentation on that point. It seems to us it is a
never-ending game of paper-chase with the Department and one
that the tribe is not prepared to engage in any longer.
The Chairman. I see. If you were provided recognition of,
let's take the higher number I have heard today, of 55,000
people, what types of services provided by the Bureau or the
IHS would you pursue? What is the most important to the tribal
community?
Mr. Hunt. We are receiving some services now, particularly
housing.
The Chairman. From the Federal Government?
Mr. Hunt. Yes; we are. My policy on that, and I think I can
speak for the Council is, we would not want to be eligible for
any less than any other tribe would be.
The Chairman. Do you want a casino?
Mr. Hunt. That is not a problem with us right now. That is
not an issue. We started this journey 100 years before
legislation.
The Chairman. It is not a problem with me either, because I
happen to support Indian gaming.
Mr. Hunt. Yes; That came about in 1988. That was exactly
100 years after we started our journey for Federal recognition.
So that is not an issue at this time for us.
The Chairman. Okay. I think I will yield to Senator
Cantwell if she has some questions before we go on to our next
witness.
Senator Cantwell. Thank you, Mr. Chairman. You may have
asked this prior, but it seems like a large attendance here
today.
The Chairman. Yes; we introduced them and most of them have
come from North Carolina, braving the impending storm, to be
her for this hearing. A lot of them are members of the Lumbee
Tribe.
Senator Cantwell. Well, I hope you find safe harbor here in
Washington.
I have a couple of questions. Dr. Campisi.
The Chairman. The only one who has testified so far is
Chairman Hunt.
Senator Cantwell. Okay. Is it okay to ask questions of the
rest of the panel?
The Chairman. Would you prefer to hear them first? What is
your time?
Senator Cantwell. For time, it would be good if I could.
The Chairman. Okay.
Senator Cantwell. I have already had an opportunity to read
their written testimony.
The Chairman. Okay. Why don't you go ahead and then I will
take testimony from them after and ask some of my questions
after you do.
Senator Cantwell. Okay.
I was struck by your statement that you said that out of 28
tribal petitions for Federal acknowledgement that you have
worked on, none have exceeded the Lumbee petition in
documentation and evidence, from the perspective of a cohesive
political community, as well as the amount of information that
can be documented. So I wondered if you could elaborate on your
statement, juxtaposed to some of the other tribes that are
seeking recognition.
Mr. Campisi. I have worked with the Lumbee for 20 years
now. There is an incredible amount of paper documentation on
issues that relate to a community, issues that relate to
political continuity. There is an enormous amount of
documentation relating to the kinship system, to the
membership. And in that 20 years of work, I visited many of
their churches. I went to many of their social events. I
attended many civic events, tribal events. I am struck by the
cohesiveness of the community.
I did not find, as I have found in other communities, sharp
factional divisions as one might expect or sometimes do find. I
found differences of opinion, certainly, and that is a healthy
thing, but I never found a group anywhere near as large who had
such a sense of self, such a sense of direction, and such an
understanding of who they are and who others are. That is to
what I was referring.
Senator Cantwell. The BIA testimony there is a process in
sequential logic that is if Congress wants to take action to
deal with the 1956 act that we could do that. To make sure that
that had good legal standing, one of the principles that we
would have to address is the historical continuity of a unified
community under that one leadership and government. So as a
historian looking at 28 tribes that are seeking a similar
process, you have no concern about our ability to do that?
Mr. Campisi. None at all. I think the tie to the Eastern
Siouan tribes is clear. I think the connection to the Cheraw is
compelling. I think the work done by John Swanton in the 1930's
and the research continued by Bill Sturtevant, Jim Merrill, and
Ray Fogelson, three eminent researchers, scholars, all confirm
what Swanton came up with in the 1930's. We have more data now
available to us than Swanton did. So I do not see any
legitimate argument against the argument of dissent from
Eastern Siouan Tribes, particularly the Cheraw.
Senator Cantwell. And how would you compare that to other
tribes that already have recognition?
Mr. Campisi. It is different in the sense that, there is a
lot of serendipity operating. Some tribes were passed over;
other tribes formed treaties with the United States because of
something they had. I look at some of the Northeastern tribes
that I have worked with, and I think the argument of the
Lumbees is as compelling as those arguments are, that both
Congress and the Department of the Interior have recognized.
Senator Cantwell. So you would say that they have as much
historical data and context as some already recognized tribes,
and maybe even more than some that have been recognized?
Mr. Campisi. I would say so.
Senator Cantwell. So again, my point being that if Congress
chose to act dealing with the 1956 act we should not be
concerned about our historical findings as a precedent to move
forward.
Mr. Campisi. You should not be concerned. I agree.
Senator Cantwell. Chairman Hunt, I was curious also, the
criteria that is listed for recognition. Have you seen that
list of criteria of the BIA?
Mr. Hunt. Yes; I have.
Senator Cantwell. There are a variety of criteria here,
such as, demonstrating the political influence of authority,
providing a copy of the governing documents. You believe that
you are in conjunction with those criteria? There are seven.
Mr. Hunt. Yes; I do.
Senator Cantwell. So again, it seems to me that we are back
to this 1956 act and that what Senator Dole is trying to do is
address the fact that we are caught in this cohesiveness of
having met the criteria, having the historical context, but
having a previous law on the books that is prohibiting us from
moving forward.
Mr. Hunt. I think that is true.
Senator Cantwell. So then it is a question of whether we
have the will to address that inconsistency that is in the 1956
act.
Mr. Hunt. I hope we have the will and the way.
Senator Cantwell. I want to turn to Mr. Martin, if I could,
because Mr. Martin I understand that you represent the United
South and Eastern Tribes, and have in the past had some written
testimony submitted to this committee in favor of special
recognition, but now you, or some of the members, are in
opposition. I am trying to understand what the official
position is of the United South and Eastern Tribes.
Mr. Martin. As clarified in my testimony if you have read
that, is the latest resolution that you said did pass, and you
said being the intertribal organization representing 24
federally recognized tribes, we traditionally have supported
any Indian group that is going through the Federal
acknowledgement process. We have a longstanding opposition to
any tribe that wishes to circumvent that system and be
recognized legislatively.
Senator Cantwell. Do you think that the Lumbee meet the
criteria that are outlined in the current Federal law for
recognition?
Mr. Martin. I am not an expert in that area to determine
whether they meet that criteria or not. That is the reason we
believe that every Indian group should go through the Federal
acknowledgement process. The Bureau of Indian Affairs in the
infinite wisdom of Congress realized that Federal recognition
is a complex and tedious process that should not be entered
into lightly. So therefore in the wisdom of Congress, they
deferred that to the BIA within the Department of the Interior,
who employ the experts that need to review and analyze that
comprehensive information.
I am certainly encouraged by the representatives of the
Lumbees of North Carolina that they believe that they can meet
that criteria. If that is the case, then we, as our testimony
says, we should amend the bar that prohibits them from going
through the administrative process. Let the information that
they say exists to be reviewed by the experts so that they
could be, if reviewed by those experts and giving a positive
determination, to be welcomed open-arms by the other federally
recognized Indian tribes of this country.
Senator Cantwell. So you do not think that the 1956 act
that basically said that nothing in this act should make them
eligible for services shouldn't be the lone determinant in
deciding whether they should get recognition?
Mr. Martin. No, ma'am; I think that as far as that, they
should go through the process and meet the criteria just as my
tribe has, and I can speak from that personally. I am a member
of the Poarch Band of Creek Indians. My tribe went through the
process. It took in excess of 20 years for us to go through
that process. I cannot in good conscience sit here and say that
I should say a tribe just should take their word for it and
artificially bestow such a prestigious honor on that tribe as
Federal recognition in there. We went through the process. We
believe every tribe should go through that process.
I am encouraged by their statements today that they believe
that they can meet that criteria.
Senator Cantwell. But did you have a previous law on the
books that had been a roadblock to allowing those criteria to
be judged in your favor?
Mr. Martin. No, ma'am.
Senator Cantwell. So that seems to be one of the
distinguishing differences here is that perhaps this 1956 law,
or at least if I read the BIA testimony correctly, they are
saying here is the information, but you have this little
stumbling block, Congress. You have something that is
prohibiting this that you put on the books in 1956. I am not
100 percent clear why that was put on the books, but it seems
like BIA has to deal with that inconsistency. I am glad to hear
you say that they should be judged on that criteria because my
guess is they probably do meet the rest of the criteria. It is
only this inconsistency in the previous law that we have to
resolve.
Mr. Martin. Yes, ma'am; as my testimony indicates, a House
bill has been introduced. I think it is House bill H.R. 1408
that would correct that administrative procedure that bars them
from going through the administrative procedures for Federal
recognition. Our tribes are in support of that correction so
that they can then avail themselves to the BAR process and go
through that process and be judged and determined. Our tribes
do not believe we should say if they are Indian or not. That is
something that is ultimately left up to the Federal Government.
Senator Cantwell. Thank you.
The Chairman. Would you yield for 1 moment?
Senator Cantwell. Yes; thank you.
The Chairman. I am going to skip around and come back to
your testimony. I am sorry we kind of got a little bit astray.
Mr. Martin, you said, let me speak about a couple of tribes
that did get land claims, and I understand recognition came
with some of the land claims. That included the Alabama
Coushatta, the Catawba, the Houlton Band of Maliseets and
Mashantucket Pequot, the Narragansetts, the Passamaquoddy, and
the Penobscot. So I understand all those did not go through the
BAR process, but were a land claim that was passed by Congress,
but also got recognition in the process.
My question is, did USET support any of those or oppose any
of those, or are you familiar with that?
Mr. Martin. I am not familiar with whether we took official
stances on those. It has always been our longstanding position
that a petitioning tribe should go through the Federal
recognition process.
The Chairman. I see. Okay. Thanks.
Did you have any further questions?
Senator Cantwell. No, Mr. Chairman; I just wanted to wish
everyone here both good luck with the Isabel storm coming, and
this process.
The Chairman. We will try to move along here so you can get
out before it hits.
Senator Cantwell. Hopefully we can resolve these last of
the issues and let the facts lay on the table so that this
process can take place.
Thank you.
The Chairman. Why don't we go back now to any comments that
the panel would like to make. If you would like to abbreviate,
we will go ahead with Dr. Campisi. If you have already made
some of them in answers to other questions, you can skip those.
Mr. Campisi. Yes; I have. I will skip those parts.
The Chairman. Good.
STATEMENT OF JACK CAMPISI, TRIBAL HISTORIAN, LUMBEE TRIBE OF
NORTH CAROLINA
Mr. Campisi. Mr. Chairman and members of the committee, I
would like to thank the committee for giving me this
opportunity to address the committee on this important
legislation. My name is Dr. Jack Campisi. I have been a member
of the Anthropology Department at the State University of New
York, and most recently on the faculty of Wellesley College in
Massachusetts.
Since the publication of the Federal acknowledgement
regulations in 1978, I have worked with 28 tribes on their
petitions. I conducted historical and field research with the
Lumbees for nearly 20 years.
In my testimony today, I will describe the basis of my
professional opinion that the Lumbee Tribe in North Carolina
meets all but one of the seven criteria specified for Federal
acknowledgment in 25 CFR 83, and in S. 297. A previous speaker
has outlined the criteria. There is no need for me to go
through that. Let me say that there is ample evidence in
Federal, State, church, local, school records, newspapers,
anthropological and historical publications to demonstrate that
the Lumbees meet criterion A.
For criterion D there is a written constitution, and before
that we have detailed descriptions of the decisionmaking
process. There is no evidence that any of the present members
of the Lumbee Tribe are members of any federally recognized
tribe. That is criterion F. That leaves four criteria: D,
community; C, political; E, tribal origins; and G,
congressional termination.
On community, the regulations provide that this criterion
can be met by demonstrating that more than 50 percent of the
tribe's members reside in an area nearly exclusively. The
regulations also provide that this criterion can be met if more
than 50 percent of the tribe's married members are married to
other tribal members.
In 2002, I conducted a systematic sampling of the tribal
membership following a methodology used by the Branch of
Acknowledgment and Research in another case. I drew a random
sample of 1 percent from the tribal roll, a total of 514 names.
This correlated closely with the number of tribal members. I
found that 65 percent lived in the core areas in Robeson
County, Pembroke, Maxton, Rowland, Lumberton, Fairmont, St.
Pauls, and Red Springs.
The Chairman. Did you do those studies on-site?
Mr. Campisi. Yes.
As to marriages, 70 percent of those who are married are
married to another Lumbee tribal member.
Two points are important to mention in this regard. If the
70 percent of the tribal members are married to each other, it
stands to reason that at least this percentage was maintained
in the past. This is borne out by analysis of past Federal
censuses going back at least to 1850. Prior to 1850, you do not
have the name of the spouse, so it makes it more difficult.
Second, under the regulations, if the petitioner meets the
high standard for any time period under criterion B, the
petitioner also meets the requirement for criterion C,
political, for the same time period.
As to the political, criterion C, even though the Lumbee
Tribe can demonstrate high evidence under criterion B
throughout its history and thereby satisfy this criterion, it
can also demonstrate continuous political authority. For
example, in 1885 the tribe was successful in getting the State
of North Carolina to recognize them and permit them to
establish their own school system, this, after their refusal to
send their children to segregated schools.
This picture here, number 2, is Aaron Locklear, identified
as a Croatan Indian in this photo from the Smithsonian
archives. Aaron Locklear was an influential leader in the early
1900's
Picture number 3 is a picture that shows Anderson Locklear
School in 1910. Anderson Locklear was a highly respected
educator and religious leader. Locklear Hall on the campus of
the University of North Carolina-Pembroke is named for him.
The Chairman. Is that a grandfather or great-grandfather of
you, Arlinda? Which one? Great-grandfather?
Ms. Locklear. Not direct lineal, but collateral.
The Chairman. Yes.
Mr. Campisi. Photo number 4. In order to teach their
children, the tribe needed a teacher's training school. This
photo shows a class at that school, the Normal school which
later became part of the University of North Carolina-Pembroke.
This photo shows a class. In it, it contains a petitioner from
the 1887-88 State petitions.
The Chairman. It looks like a typical Bureau school. They
cut all their hair first thing, didn't they.
Mr. Campisi. Yes; that is right.
Education is a primary tribal cultural value; 19th-century
demands for schooling outstripped the resources available. This
caused the tribal leaders to appeal for support to Congress. As
stated, no less than nine studies or attempts were made in
requests by Congress for information. These continued from the
late 1890's to the 1930's. All reported the existence of a
Lumbee Tribe.
In 1936 at the direction of Felix Cohen and Dr. Carl
Seltzer of Harvard conducted a study under the provisions of
the Indian Reorganization Act. Dr. Seltzer collected physical
and ethnographic data on 209 tribal members and found 22 met
the half-blood standard. I do not condone Dr. Seltzer's
physical anthropological technique. It is outmoded and stupid.
But the important part of that is, this photo is of Duncan
Locklear who informed Dr. Seltzer that according to his
grandmother, the last tribal member who spoke the native
language died in the 1890's. Duncan Locklear's grandfather was
Allen Lowrie, a signer of the 1888 petition.
The State of North Carolina has continuously recognized the
Lumbee Tribe, although under different names. In 1953, the
Lumbees held a referendum on their present name, which they
approved by an overwhelming majority.
Number 6. Finally, this is a scene of the Lumber River,
which until 1807 was called Drowning Creek. This is an area
where the majority of the Lumbee members live today. It is the
same area that the Cheraw Indians were located on in the 18th
century. In 1934, the Department of the Interior asked Dr. John
Swanton, ethnologist at the Bureau of American Ethnology and
leading authority on Southern Indian tribes, determined the
tribal origins of the Indians of Robeson County. Dr. Swanton
expressed his professional opinion that the Lumbee Indians were
of Eastern Siouan tribal origins, and particularly Cheraw.
This opinion was accepted by the Department of the Interior
and reported to Congress in 1934, along with a copy of Dr.
Swanton's report. After reviewing the data available, Swanton's
findings have been supported by such eminent scholars as Dr.
William C. Sturtevant, Curator of Ethnology at the Smithsonian
Institution and General Editor of the Handbook on North
American Indians, by Dr. James Merrill of Vassar College,
historian and specialist on Indians in the Carolinas.
The Chairman. Dr. Campisi, this is a lot of material in the
records here. Was all this used when North Carolina decided to
grant State recognition of this tribe?
Mr. Campisi. No.
The Chairman. It was not?
Mr. Campisi. It was not available.
The Chairman. Is it available now?
Mr. Campisi. It is available now.
The Chairman. Can our committee staff get a copy of that or
review it or see that?
Mr. Campisi. Absolutely.
The Chairman. Thank you.
Mr. Campisi. By Dr. Raymond Fogelson, anthropologist at the
University of Chicago and specialist on Cherokee ethnology, and
by myself.
In conclusion, the evidence I have reviewed and presented
in my written statement and summarize today convinced me that
the Lumbee Tribe satisfies the first six of the seven criteria.
However, it does not satisfy criterion G, congressional
termination. In view of the long history of the Lumbee Tribe's
efforts to achieve Federal recognition and the actions of
Congress with regard to the 1956 legislation, S. 420 is the
appropriate remedy, in my mind.
Thank you.
The Chairman. Thank you, Dr. Campisi. Your dedication to
Indian Country and the long history that you have provided on
many occasions is well known to Indian people. You have been
involved in 28 BAR applications, is that correct, as I
understand it?
Mr. Campisi. That is correct.
The Chairman. How many of those were successful in their
bids?
Mr. Campisi. Let's see. There was Gay Head, Wampanoags.
The Chairman. Are you at least batting 500?
Mr. Campisi. I would be batting 500 if they ever got around
to completing them. I would be better than 500 if they really
followed the regulations as I think they ought to.
The Chairman. You heard me ask earlier of the chairman that
as I understand it their governing document, their
constitution, was not adopted until just a couple of years ago.
Maybe I should have asked the chairman. Did they have any
document that they operated under before that?
Mr. Campisi. Not as such, but that is an excellent
question. They operated in a community sense through a network
of kinship and a network of religious organizations, and formed
consensus through these two.
The Chairman. But it was a system of governance of some
sort?
Mr. Campisi. Absolutely. It was a clear system of
governance. In fact, the constitution convention originated
through the churches.
The Chairman. Do you know if there are any records of that
form of governance, the meetings they had or things of that
nature? Were there notes taken?
Mr. Campisi. Yes; there are records of meetings. There are
records of groups getting together for specific purposes,
specifically, for example, in the 1930's. There are records of
meetings in the 19-teens.
The Chairman. Did you have an opportunity to review those
records or see them?
Mr. Campisi. Yes; I have.
The Chairman. Okay. And if you could also provide those for
the committee, we would appreciate that, too.
Mr. Campisi. We certainly will.
The Chairman. Thank you for your appearance.
[Prepared statement of Mr. Campisi appears in appendix.]
And now we will move to Ms. Locklear. Anything you have
already said once or twice, you do not need to repeat again for
me.
Ms. Locklear. I appreciate that. I will keep my remarks
brief. I think the committee has covered a lot of material
today.
STATEMENT OF ARLINDA LOCKLEAR, ESQUIRE, TRIBAL ATTORNEY, LUMBEE
TRIBE, NORTH CAROLINA
Ms. Locklear. Let me begin by saying once again how pleased
the Lumbee Tribe is to have the opportunity to make our case to
the committee, and how gratified we are by the overwhelming
support and hard work of our sponsors that have gotten us here
today. That is Senator Dole, she has earned our everlasting
gratitude; Senator Edwards and Congressman McIntyre.
Also, a particular thanks to Delegate Faleomavaega. He has
been a long-time friend of the Lumbee people. As the chairman
yourself indicated earlier, he has not failed. He has helped us
succeed. Had it not been for his efforts and others like his,
we would no be here today. So we say ``thank you'' to them.
The Chairman. He is a good one.
Ms. Locklear. He is a good man.
I will keep my remarks brief. We have written testimony
that the chairman has already accepted into the record.
The Chairman. Yes; we will read that copiously.
Ms. Locklear. Probably the most effective thing I could do
at this point is to address some concerns that the chairman has
raised with other witnesses, to try to clarify the position of
the tribe with respect to other tribes and historically.
First of all, with respect to the uniqueness of the Lumbee
Tribe, that cannot be overstated. The committee has already
heard today that it is the largest non-federally recognized
tribe in the country. It has probably the largest documented
legislative and administrative record of any tribe in this
country. If you compile, as we have, the legislative history of
all of the hearings that have been held on this tribe's history
since 1899, as well as the nine studies that the Chairman
referred to, you have literally hundreds of pages of testimony
and documentation with regard to the history, ancestry and
community of the Lumbee Tribe. I dare say that these pages
compare admirably to the extent of work that was done on Poarch
Creek and other tribes that have gone through the
administrative process.
In particular with regard to Poarch Creek, I think it is
important to observe for the committee that we were pleased to
have the support of the chairman of the Poarch Creek Tribe in
1988 who in a letter to this committee specifically noted that
the Lumbee has a unique set of circumstances that does justify
special legislation for the Lumbee Tribe, even though USET has
repeatedly indicated its support for the administrative process
for other tribes.
There is one final circumstance, of course, which hovers
above all the rest of these, and that is the 1956 Lumbee Act.
It is important to place that act in its context. The Lumbee
people, as other witnesses have testified, had been at this
task since 1888. There was a pattern to these bills, the nine
or so bills that were introduced in Congress between 1899 and
1956. This is the pattern.
Every occasion that the State of North Carolina amended its
law to recognize the tribe under a particular name or for a
particular purpose, the tribal leadership came to its
congressional delegation and sought an act of Congress to
recognize the tribe on the same terms that the State had
recently done so. You see this with the 1899 statute, which
followed on the heels of the 1885 State statute. You see it
with the 1911, 1913 statutes which followed immediately on the
heels of State recognition under different names. You also see
it in 1956 with the Lumbee Act.
The State of North Carolina had just 2 years before
recognize the tribe under the name of Lumbee, which was the
first time the tribe itself had asserted that this is the name
we choose to be known by, the place where we have always
resided. After that act, then the tribal leadership came to
Congress with the exact same language, the exact bill that had
been passed by the State of North Carolina, and asked its
delegation to obtain Federal recognition upon the exact same
terms. That bill was introduced, but again at the request of
the Department of the Interior, who once again objected to
recognition of the tribe, it was amended in the Senate to
include the termination language.
So what began as one more effort for recognition by the
tribe, ended in termination by the tribe at the hands of the
Department of the Interior.
As the chairman has testified, the tribe nonetheless
thought it had been recognized in 1956. The streets of Pembroke
were closed for celebration. There was a parade through town
that many of our elders today remember clearly. It was a joyous
day for us. And it was only with the passage of time over a few
years that we began to realize that once again we had been
tricked. That happened conclusively in the early 1970's.
As you have heard, the tribe had operated its own school
system under the law of North Carolina since 1885. By court
order in the early 1970s, the State of North Carolina was
obliged to desegregate its schools. The Lumbee Tribe thought
our schools were exempt. We were a recognized Indian tribe,
after all. It was only when Lumbee parents were arrested and
charged with truancy for refusing to allow their children to be
bussed and to be up their own separate school system that a
Federal judge told the tribe, you are not federally recognized,
and because of that you are not allowed by law to maintain your
own school system. It must be dismantled. We lost it. And that
is when our modern effort to achieve Federal recognition began
again.
Those are the unique circumstances, we believe, that
justify Congress taking the act of acting completely,
completing what it started in 1956 with the partial
recognition, finishing that act, and recognizing the tribe
fully.
As other witnesses have testified, there has only been one
other tribe in the history of Federal Indian policy that has
been in this precise circumstance. That was what was formerly
known as the Tiwas of Texas. In 1968, this tribe, which had
been long-recognized by the State of Texas, came to the
Congress with its own recognition bill. That bill was amended
to include the same termination language that appeared in the
1956 Lumbee Act. In fact, the legislative history of the 1968
Tiwa Act says specifically that that Act was modeled upon the
1956 Lumbee Act.
The Tiwas were not happy with that situation either. It was
done at the height of termination policy and eventually
Congress righted that wrong. In 1987, the Congress passed the
Ysleta del Sur Restoration Act, which extended full Federal
recognition to the Ysleta del Sur Pueblo, formerly known as the
Tiwas of Texas.
I would like to observe also that there was no opposition
to that recognition Act by USET or many other tribes, even
though they now profess to have great regard for the
administrative process. The administrative process existed at
that time. Congress in its wisdom understood that a wrong had
been done to the Tiwas of Texas and righted it. For the same
reason, Congress needs to realize that the Lumbees have
suffered as second-class Indians since 1956. Congress put the
Lumbees in that position and Congress should take it out, as it
did with the Ysleta del Sur and extend full Federal
recognition.
If I may, in summary, refer the committee to some of the
major terms of the proposed bill that Senator Dole has
introduced, and address a few of the concerns that have been
raised by some of the witnesses so far.
First of all, the Act does, as it should appropriately,
present itself as an amendment to the 1956 Lumbee Act. It
would, as did the 1987 Ysleta del Sur statute, extend full
Federal recognition to the Lumbee Tribe; no more half-measures,
but full Federal recognition. Second, it also bestows civil and
criminal jurisdiction on the State of North Carolina, subject
to a change in that situation should the tribe, the State and
the United States agree to do so on a negotiated basis.
This is important because it recognizes the longstanding
relationship that the tribe has had with the State of North
Carolina. It is also important because we fear, given the size
and concentration of the Lumbee community, that were it not for
that provision, there may be a lapse of jurisdiction for some
period of time. So that provision is important to us.
Those are the key provisions. Some question has been
raised, however, with regard to land acquisition provisions.
Let me say a few words in response to those concerns.
It is not the intent of these bills to establish a
reservation per se. There is language in the bill that refers
to reservation boundaries, but for the purposes of the delivery
of Federal Indian services. As the chairman knows, many of
those services are tied to the location of reservation
boundaries. As part of the effort to ensure that Lumbees are
not again the subject of one-half measure, we put language in
the bill to make sure that the Lumbees are eligible for those
services, even though a formal reservation may not exist.
It is also important to point out that because of those
differences, the absence of a formal reservation, the extension
of State civil and criminal jurisdiction to the tribe, it is
not fair for cost purposes to compare this tribe to other
tribes in a similar situation.
I think Ms. Martin for the Bureau testified that there may
be a 15- to 20-percent participation by the Lumbee Tribe in the
existing BIA budget were they recognized. We think that is not
an accurate figure at all for a number of reasons. First of
all, as I indicated, the Lumbee Tribe because of the State
civil and criminal jurisdiction and because of the absence of a
formal reservation, would simply not participate in a number of
the Federal Bureau of Indian Affairs programs that are geared
for those purpose. Law enforcement programs, trust
responsibility programs would simply not apply, and therefore
those costs would not obtain or attach to this bill.
Second, Ms. Martin's testimony does not take into account
the fact that the Lumbee Tribe presently participate in a
number of the programs that she is concerned about. By virtue
of the tribe's State recognition, the tribe already
participates in the HUD Indian Housing Program. The tribe
already participates in a number of Department of Labor
program, and the tribe already participates in the LEHAP, or
Low Energy Housing Assistance Program.
Those are costs that are presently being borne by the
United States Congress in the appropriations for Indian people,
so that would not be an added item that would come about as a
result of this bill. We think for those reasons the 15 to 20
percent estimate is a gross exaggeration of the additional
costs that the Congress would bear because of this bill.
In sum, Mr. Chairman, I think you have heard today some
eloquent testimony from our leadership. You have seen our
people here. You have sensed the excitement that they feel. We
really think that the time has come. We have been here long
enough. We have been studied enough times. The Congress knows
us. The Department of the Interior knows us. We urge the
committee to act favorably as soon as possible on Senator
Dole's bill.
Thank you.
[Prepared statement of Ms. Locklear appears in appendix.]
The Chairman. Thank you, Arlinda. You are a fine speaker
for the tribe. Let me ask you just a couple of quick questions.
You are going to have to deal with land into trust at some
point. Is there a location now that the tribe wants as a land
base?
Ms. Locklear. There has not been a tribal decision made on
that issue. There are areas that obviously suggest themselves.
As I indicated, the tribe currently receives Indian Housing
Program. There are Indian housing units.
The Chairman. But there are no areas designated that you
would like to get as a land base?
Ms. Locklear. Not at this point.
The Chairman. Okay. And maybe the last question, you said
that the linguistic group of the Lumbees was Siouan.
Ms. Locklear. Yes.
The Chairman. Was that also the same linguistic group as
the Cheraw?
Ms. Locklear. Yes; the Cheraw were Siouan speakers.
The Chairman. I think that is all I need to ask you. Oh,
maybe one last question. This number of 40,000 to 55,000 I have
heard, what is it? Where is the number of enrolled people?
Ms. Locklear. The chairman is correct when he testified
that we have 53,000 enrolled members.
The Chairman. 53,000. A large group.
Ms. Locklear. Let me say that have an ongoing process to
cull from that record deceased members.
The Chairman. How many of those are adults of voting age?
Ms. Locklear. We have a very young tribe.
The Chairman. I would be interested in knowing that. I am
sure Senator Dole would be interested in knowing that.
[Laughter.]
Okay, thank you. I have no further questions, but we may
submit some to have you answer in writing.
Ms. Locklear. Just to clarify. When we said almost 55,000,
we were saying ``almost,'' which is the 53,000 figure. The
40,000 is the 40,000 in Robeson County alone, but there are
members that live elsewhere as well in surrounding counties and
also some other places. But there is not really a discrepancy;
that is just a clarification for the numbers.
The Chairman. Okay. Sure. Thank you.
Mike, I am sure you would be interested in knowing the
number of them that can vote too, wouldn't you?
Mr. McIntyre. You bet. [Laughter.]
The Chairman. Okay. We will go to our last witness, James
T. Martin from USET, who has appeared many times before the
committee. Nice to see you, James. Go ahead.
And as with the other witnesses, you are welcome to
abbreviate, and may have answered a few questions already in
earlier dialog.
Mr. Martin. Yes, sir; Mr. Chairman, I would submit my
written testimony as the formal testimony.
The Chairman. It will be in the record.
STATEMENT OF JAMES T. MARTIN, EXECUTIVE DIRECTOR, UNITED SOUTH
AND EASTERN TRIBES, NASHVILLE, TN
Mr. Martin. I will touch on some highlights. As I mentioned
just a moment ago, I am certainly encouraged by the information
provided by the Lumbees of North Carolina. But it goes more
toward the stance that USET is taking in its formal testimony,
that they should go through the process.
My name, for the record, is James T. Martin. I am an
enrolled member of the Poarch Band of Creek Indians of Alabama,
executive director of USET, the intertribal organization
representing 24 federally recognized Indian tribes.
USET acknowledges that Federal recognition of Indian tribes
is a formal act creating a perpetual government-to-government
relationship, so I can truly understand the sincere desire of
this group to become federally recognized. Federal recognition
ensures tribes the dignity and the deserving of equal
opportunity that fellow other tribes enjoy. Federal recognition
is a complex process important to the sovereign and cultural
stability of the tribes, in that Federal recognition creates
that official trustee relationship and fiduciary
responsibilities on the part of the United States.
USET affirms that the Federal recognition mandates the
obligation by the Federal Government to protect and preserve
the inherent sovereign rights of a tribe. Federal recognition
enables the tribe to gain valuable resources to break the yoke
of unemployment, low educational levels, substandard housing
and poverty that has plagued our people. As they have
testified, the same things that occurred there. So I am fully
aware and appreciative and respect their desire to gain this
recognition, to be able to be welcomed into the society of
other federally recognized Indian tribes.
Federal recognition would shield the tribe from undue
Federal and State encroachments. Without Federal recognition,
tribes have experienced great difficulty in sustaining
themselves as independent sovereign and cultural entities.
Federal recognition creates the trust relationship that
identifies the Government's fiduciary responsibility to manage
and protect the Indian lands, natural resources and trust
assets. The member tribes of USET realize the affirmative
advantage of a proper Federal recognition.
Furthermore, federally recognized tribes enjoy the inherent
sovereign powers to be recognized by the United States to
exercise criminal jurisdiction over tribal members and civil
jurisdiction over all people, Indian and non-Indian, within
their territory. Federally recognized tribes have the authority
to engage in economic development activities, with certain
judicial and tax advantages.
We recognize that Congress has the power to extend certain
recognition to groups, but in its infinite wisdom, Congress has
deferred this Federal recognition process. Congress has
considered this Federal recognition process a complex and
tedious one, and it is not to be entered into lightly. Congress
therefore deferred to the Department of Interior, which has
established a set of regulations, standardizing the Federal
recognition process, and creating administrative procedures to
determine whether a particular Indian group is a federally
recognized tribe or not. That was alluded to by Ms. Martin
earlier, and alluded to by Ms. Locklear and other people so I
will not restate those areas. But I would state, though, that
this BAR procedure was the result of a 2-year study from the
congressionally established American Indian Review Commission,
and requests by tribes calling for standardized criteria in
determining the future relationships of tribes to the United
States.
It is the BAR, not Congress, which is staffed with the
experts such as historians, anthropologists, genealogists. It
is there responsibility to determine the merits of the group's
claims. I would propose to Congress that this information
provided is a complex information. How will Congress look
through that, when they, in your infinite wisdom, have in the
past deferred that to the experts to be able to do that? These
procedures were established in 1978. They were streamlined in
1994.
The seven criteria that were identified are there for a
high reason. Our tribe,the Poarch Band of Creek Indians, had to
go through that process. We had to go through it for over 20
years. We believe in that process. USET believes in that
process.
I am here today to reiterate USET's longstanding tradition
of supporting Indian groups seeking to go through the Federal
acknowledgement process. This position is reiterated in our
resolution 9315, restating the position on the Lumbee
recognition, duly passed by our Board in 1993. This resolution
expressly rejects the concept of legislative recognition of
Indian groups in favor of the participation in the FAP process
by the Lumbees of North Carolina on an equal basis as other
petitioning groups.
It is not the intent of USET to encourage the denial of
recognition to any tribe, but it is our intent to demand that
the FAP process and the BAR procedures for Federal recognition
be administered equally for all groups seeking Federal
recognition, and that that group not be allowed to bypass this
process.
We recognize that the Interior Solicitor's opinion states
that the Lumbees cannot access the BAR because of Federal
legislation. USET believes the appropriate remedy is for
Congress to clear this barrier through legislation that would
allow the Lumbees to access the administrative procedures. A
bipartisan bill, as I understand it, H.R. 1408, has been
introduced in the House that would allow that to occur.
Additionally, Federal legislation acknowledging of a group
would unfairly give preferential treatment to that group over
all other groups that are patiently waiting in the BAR process.
Moreover, providing Federal acknowledgment of a group through
legislation invariably leads to inconsistent and subjective
results. Without the use of uniform procedures and criteria,
the process of according a group Federal recognition as a tribe
will invariably be based upon emotion and politics.
The relationship that all federally acknowledged tribes
have with the United States and the public perception of those
tribes is diminished if a group is afforded Federal
acknowledgement without serious technical review. Thus Congress
should take the politics out of Federal acknowledgment and
allow the experts to do their job.
I have personal friends in this audience from the Lumbee
people. I have broken bread in their house, probably slept in
some of their beds going to their unity conference and other
meeting. It is not here that I state this as a personal
opinion. It is the opinion of all tribes across the Nation,
that there are administrative procedures that all tribes should
go through so that they can be welcomed into, if they are
fortunate enough to pass the process, by all tribes across
Indian country, and not to be welcomed in with an asterisk by
their name. I am certainly encouraged by the information
provided that they believe that they could go through the
administrative process and succeed. Six of the seven criteria,
as the gentleman says, that they can meet.
We would ask this Congress to amend those procedures to
allow the Lumbees of North Carolina to avail themselves to the
administrative process and review the information just as all
other tribes have done.
Thank you.
[Prepared statement of Mr. Martin appears in appendix.]
The Chairman. Thank you, Tim.
I want to also by the way thank you on an unrelated issue,
the very strong support that USET gave to our Indian provision
of the energy bill that is in conference now, and hopefully
that is going to come out intact. I think it is going to open
up some huge opportunities for Indian tribes who want to avail
themselves to it. As you know, it is voluntary, tribe by tribe,
but I want to thank your Board for the help they gave us. I
appreciate that.
Mr. Martin. Thank you, sir.
The Chairman. Let me ask you just a couple of things. I
understand that some of the members of USET were legislative
recognized at one time or another. Is that true?
Mr. Martin. Those legislative recognitions were in
association with land claims cases. There was not an outright
recognition of any tribe as a stand alone recognition bill.
The Chairman. I see.
Mr. Martin. All of those recognitions were associated with
land claims.
The Chairman. So the formal position against legislative
recognition was that of the 1993 or so resolution?
Mr. Martin. Yes, sir; Now, the other tribes that we have in
opposition to outright recognition was the Mowa Band of Choctaw
Indians in the State of Alabama, which went through the BAR
process and was denied.
The Chairman. Well, then you did support a couple of the
USET members that were based on land claims, you said, at least
one.
Mr. Martin. Yes, sir.
The Chairman. If the Lumbees filed a land claim and got
recognition with it, what would USET's position be on that?
Mr. Martin. We would have to study the legislation as we
had studied each of those legislations before and make a
determination on that, based upon the merits of that
legislation.
The Chairman. You have 23 members. Is that a unanimous
decision when you make that, or is it a majority position of
the Board or what?
Mr. Martin. Decision by the Board are by majority vote. On
particular legislation, we are not bound by if they vote for a
position that is taken by the group as a whole. Individual
tribes may on their own take it upon themselves to support
individual legislations. Our motto is that there is strength in
unity, but those are sovereign nations that should be able to
make their public stance known.
The Chairman. Is there any interaction now between USET and
the Lumbees? You talked about personal friendships, but is
there any interactive tribal things that go on between any of
the tribes in USET and the Lumbees?
Mr. Martin. There is no formal interaction between the USET
organization and the Lumbees. We have to draw a line in the
sand. USET is an intertribal organization of 24 federally
recognized tribes.
The Chairman. The members that did get recognition through
the legislative process for land claims, have you ever heard
them regretting doing it through the legislative route over the
administrative route?
Mr. Martin. I am not aware of them expressing an opinion in
favor or not, sir.
The Chairman. Okay.
I have no further questions, but I certainly appreciate
your being here and I am sorry we had you wait so long. I know
as that storm gets closer, some people are going to want to get
home, and hopefully you will all in the audience be able to get
out to the airport if you are flying, and if you are driving be
safe.
We are going to keep the record open 2 weeks. If there is
any additional testimony from anybody in the audience or from
the people that testified that you would like the committee to
study. If you would get that to us within the next two weeks,
we will make sure that all the members get that.
I thank you, Senator Dole, for bringing this bill to the
attention of the committee.
With that, this committee is adjourned.
[Whereupon, at 11:52 p.m. the committee was adjourned, to
reconvene at the call of the Chair.]
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A P P E N D I X
----------
Additional Material Submitted for the Record
=======================================================================
Prepared Statement of Aurene Martin, Principal Deputy Assistant
Secretary for Indian Affairs, Department of the Interior
Good morning, Mr. Chairman and members of the committee. My name is
Aurene Martin and I am the principal deputy assistant secretary--Indian
Affairs at the Department of the Interior. I am here today to provide
the Administration's testimony on S. 420, the ``Lumbee-Acknowledgment
Act of 2003.'' The recognition of another sovereign is one of the most
solemn and important responsibilities delegated to the Secretary of the
Interior. Federal acknowledgment enables tribes to participate in
Federal programs and establishes a government-to-government
relationship between the United, States and the tribe. Acknowledgment
carries with it certain immunities and privileges, including exemptions
from State and local jurisdiction and the ability to undertake casino
gaming. The Department believes that the Federal acknowledgment process
set forth in 25 C.F.R. Part 83, ``Procedures for Establishing that an
American Indian Group Exists as an Indian Tribe,'' allows for the
uniform and rigorous review necessary to make an informed decision
establishing this important government-to-government relationship.
Before the development of these regulations, the Federal Government
and the Department of the Interior made determinations as to which
Indian groups were tribes when negotiating treaties and determining
which groups could reorganize under the Indian Reorganization Act (25
U.S.C. 461). Ultimately there was a backlog in the number of petitions
from groups throughout the United States requesting that the Secretary
officially acknowledge them as Indian tribes. Treaty rights litigation
in the West coast, such as United States v. Washington (384 F. Supp.
312, 279 (W.D. Wash. 1974), aft'd, 520 F.2d 676 (9th Cir. 1975), cert.
denied, 423 U.S. 1086 (1976)), and land claims litigation on the East
coast, such as Joint Tribal Council of Passamaquoddy v. Morton (528
F.2d 370 (1st Cir. 1975)), highlighted the importance of these tribal
status decisions. Thus, the Department in 1978 recognized the need to
end ad hoe decisionmaking and to adopt uniform regulations for Federal
acknowledgment.
Under the Department's regulations, petitioning groups must
demonstrate that they meet each of seven mandatory criteria. The
petitioner must:
(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 a
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.
A criterion shall be considered met if the available evidence
establishes a reasonable likelihood of the validity of the facts
relating to that criterion.
Under the Indian Commerce Clause, Congress has the authority to
recognize a ``distinctly Indian community'' as a tribe. Because, of its
support for the deliberative regulatory acknowledgment process,
however, the Department of the Interior has traditionally opposed
legislative recognition. Notwithstanding that preference, the
Department recognizes that some legislation is needed given the unique
status of the Lumbee.
In 1956, Congress designated Indians then ``residing in Robeson and
adjoining counties of North Carolina'' as the ``Lumbee, Indians of
North Carolina.'' in the Act of June 7, 1956 (70 Stat. 254). Congress
went on to note the following:
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 or their status as Indians shall be applicable
to the Lumbee Indians.
In 1989, the Department's Office of the Solicitor advised that the
1956 Act forbade the Federal relationship within the meaning of 25
C.F.R. Part 83, and that the Lumbee Indians were therefore precluded
from consideration for Federal acknowledgment under the administrative
process. Because of the 1956 Act, we acknowledge that legislation is
necessary if the Lumbee Indians are to be afforded the opportunity to
petition the Bureau of Indian Affairs' Office of Federal
Acknowledgement under 25 C.F.R. Part 83. The Department would welcome
the opportunity to assist the Congress in drafting such legislation.
If Congress elects to bypass the regulatory acknowledgement process
in favor of congressional recognition, it may only recognize the Lumbee
as a tribe pursuant to its Indian Commerce Clause authority if a court
could decide that Congress had not acted arbitrarily in implicitly or
explicitly finding that the Lumbee constitute a distinctly Indian
community. Among other factors, Congress would have to identify or be
relying upon the historical continuity of a unified community under one
leadership or government. If Congress made the proper express findings
(or implicitly relied on sufficient evidence) and then granted the
Lumbee Indians federally recognized status, the Department believes
that Congress should be cognizant of several important issues that
Federal recognition raises. As currently drafted, S. 420 leaves many
questions to these issues unanswered.
Under the provisions of this bill, the Lumbee Tribe would be
afforded all benefits, privileges and immunities of a federally
recognized tribe. Thus, the Lumbee Tribe would be authorized to conduct
gaming activities pursuant to the Indian Gaming Regulatory Act (IGRA).
Prior to conducting class III gaming, the tribe would need to negotiate
a gaming compact with the State of North Carolina. In addition, the
tribe must have lands taken into trust. Generally, if a tribe wants to
game on land taken into trust after the passage of IGRA, it must go
through the two-part determination described in 25 U.S.C.
Sec. 2719(b)(1)(A). This process requires the Secretary to determine,
after consultation with the tribe and the local community, that gaming
is in the best interest of the tribe and its members and not
detrimental to the local community. If the Secretary makes that
determination in favor of allowing gaming, then the gaming still cannot
occur without the Governor's concurrence. The bill as drafted does not
prohibit gaming.
The Department has devoted a great deal of time to trust reform
discussions. The nature of the trust relationship is now often the
subject of litigation. Both the executive branch and the judicial
branch are faced with the question of what exactly did Congress intend
when it established a trust relationship with individual tribes, and
put land into trust status. What specific duties are required of the
Secretary, administering the trust on behalf of the United States, with
respect to trust lands? Tribes and individual Indians frequently argue
that the duty is the same as that required of a private trustee. Yet,
under a private trust, the trustee and the beneficiary have a legal
relationship that is defined by private trust default principles and a
trust instrument that defines the scope of the trust responsibility.
Congress, when it establishes a trust relationship, should provide the
guideposts for defining what that relationship means.
Much of the current controversy over trust stems from--the failure
to have clear guidance as to the parameters, roles and responsibilities
of the trustee and the beneficiary. In this case, given that we would
be taking land into trust in an area in which there has not previously
been Federal trust land, such issues as land use, zoning, and the scope
of the Secretary's trust responsibility to manage the land should be
addressed with clarity and precision. Congress should decide these
issues, not the courts. Therefore, we recommend the committee set forth
in the bill the specific trust duties it wishes the United States to
assume with respect to the Lumbee. Alternatively, the committee should
require a trust instrument before any land is taken into trust. This
trust instrument would ideally be contained in regulations drafted
after consultation with the tribe and the local community, consistent
with parameters set forth by Congress in this legislation. The benefits
of either approach are that it would clearly establish the
beneficiary's expectations, clearly define the roles and
responsibilities of each party, and establish how certain services are
provided to tribal members.
Another issue we have identified is the designation of a
reservation and a service area for the tribe. S. 420 would designate
Robeson County as the tribe's reservation and names several other
counties as its service area. Typically Congress has designated land
held in trust by the Secretary as a tribe's reservation. Counties are
then appropriately designated as service areas. Under the Act, all of
Robeson County would be considered ``Indian Country'' under 18 U.S.C.
1151. By declaring the entire county as a reservation, the legislation
raises law enforcement and other important jurisdictional, taxation,
and land use issues for Robeson County. Criminal and civil
jurisdictions are two areas that are required to be addressed under the
Department's land-to-trust regulations under 25 C.F.R. Part 151
precisely because of the potential impact on the local community and
its potential impact upon the relationship between the tribe and local
residents. Moreover, designating an area as reservation has
implications for other groups in the area that might seek recognition.
We are also concerned with the provision requiring the Secretary,
within 1 year, to verify tribal membership. In our experience this is
an extremely involved process that has taken several years with much
smaller tribes. We don't currently have access to these rolls and have
no idea what would be involved to verify them. Moreover, S. 420 is
silent as to the meaning of verification. Section 5 also requires the
Department to determine eligibility for services. However, each program
has different criteria for eligibility and the Secretary of the
Interior cannot determine eligibility for such things as health care.
Finally, section 5 may raise a Recommendations Clause problem by
purporting to require the President to submit annually to the Congress
as part of his annual budget submission a budget that is recommended by
the head of an executive department for programs, services and benefits
to the Lumbee Tribe. Under the Recommendations Clause of the
Constitution, the President submits for the consideration of Congress
such measures as the President judges necessary and expedient.
Should Congress choose not to enact S. 420, the Department feels
that at a minimum, Congress should amend the 1956 Act to afford the
Lumbee Indians the opportunity to petition the Bureau of Indian
Affairs' Office of Federal Acknowledgment under 25 C.F.R. Part 83.
This concludes my prepared statement. I would be happy to answer
any questions the committee may have.
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