    [Senate Hearing 109-610]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 109-610

                             LUMBEE RECOGNITION ACT

    =======================================================================

                                    HEARING

                                   BEFORE THE

                          COMMITTEE ON INDIAN AFFAIRS
                              UNITED STATES SENATE

                           ONE HUNDRED NINTH CONGRESS

                                 SECOND SESSION

                                       ON

                                     S. 660

    TO PROVIDE FOR THE ACKNOWLEDGMENT OF THE LUMBEE TRIBE OF NORTH CAROLINA

                                   ----------

                                 JULY 12, 2006
                                 WASHINGTON, DC

                                                            S. Hrg. 109-610

                             LUMBEE RECOGNITION ACT

    =======================================================================

                                    HEARING

                                   BEFORE THE

                          COMMITTEE ON INDIAN AFFAIRS
                              UNITED STATES SENATE

                           ONE HUNDRED NINTH CONGRESS

                                 SECOND SESSION

                                       ON

                                     S. 660

    TO PROVIDE FOR THE ACKNOWLEDGMENT OF THE LUMBEE TRIBE OF NORTH CAROLINA

                                   __________

                                 JULY 12, 2006
                                 WASHINGTON, DC

                        U.S. GOVERNMENT PRINTING OFFICE
                               WASHINGTON : 2006
    28-696 PDF

    For Sale by the Superintendent of Documents, U.S. Government Printing Office
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                          COMMITTEE ON INDIAN AFFAIRS

                         JOHN McCAIN, Arizona, Chairman

                  BYRON L. DORGAN, North Dakota, Vice Chairman

    PETE V. DOMENICI, New Mexico         DANIEL K. INOUYE, Hawaii
    CRAIG THOMAS, Wyoming                KENT CONRAD, North Dakota
    GORDON SMITH, Oregon                 DANIEL K. AKAKA, Hawaii
    LISA MURKOWSKI, Alaska               TIM JOHNSON, South Dakota
    MICHAEL D. CRAPO, Idaho              MARIA CANTWELL, Washington
    RICHARD BURR, North Carolina
    TOM COBURN, M.D., Oklahoma

                   John Tahsuda, III, Majority Staff Director

                    Sara G. Garland, Minority Staff Director

                                      (ii)

                                C O N T E N T S

                                  ----------
                                                                       Page
    S. 660, text of..................................................     3
    Statements:
        Burr, Hon. Richard, U.S. Senator from North Carolina.........    13
        Campisi, Jack, anthropologist consultant, Lumbee Tribe of
          North Carolina.............................................    28
        Dole, Hon. Elizabeth, U.S. Senator from North Carolina.......     9
        Dorgan, Hon. Byron L., U.S. Senator from North Dakota, vice
          chairman, Committee on Indian Affairs......................     9
        Fleming, R. Lee, director, Office of federal Acknowledgment,
          Department of the Interior.................................    13
        Goins, James Ernest, tribal chairman, Lumbee Tribe of North
          Carolina...................................................    24
        Hicks, Michell, principal chief, Eastern band of Cherokees...    26
        McCain, Hon. John, U.S. Senator from Arizona, chairman,
          Committee on Indian Affairs................................     1
        McIntyre, Hon. Mike, U.S. Representative from North Carolina.    11
        Locklear, Arlinda F., attorney, Lumbee Tribe, North Carolina.    24
        Thomas, Hon. Craig, U.S. Senator from Wyoming................     9

                                    Appendix

    Prepared statements:
        Campisi, Jack................................................    37
        Fleming, R. Lee..............................................    45
        Goins, James Ernest (with attachment)........................    54
        Hayes, Hon. Robin, U.S. Representative from North Carolina...    47
        Hicks, Michell...............................................    74
        Locklear, Arlinda F..........................................    83
    Additional material submitted for the record:
        Easley, Mike, Governor, North Carolina, letter (with
          attachment)................................................    93
        Summary of Concerns of Tuscarora Nation of Indians...........    48
        Tuscarora History............................................    53
        Magnotta, Katherine, chairwoman, Tuscarora Nation of Indians,
          letters....................................................   100
        Siouan Indians of Lumbee River, report 204...................   104
        Public Law 570...............................................   110
        Hearing before the Committee on Interior and Insular Affairs,
          Subcommittee on Indian Affairs, July 22, 1955..............   111
        Congressional Record, February 20, 1956......................   134
        United States Code, 84th Congress Second Session, 1956.......   136
        Brooks v. United States; Case No. 29-73......................   139
        The Croatan Indians of Robeson County, North Carolina, James
          E. Henderson, superintendent, Cherokee Nation, December 11,
          1923.......................................................   155
        Probable Identity of the Croatan Indians, Dr. J.R. Swanton,
          Smithsonian Institution, Washington, 1933..................   168
        Indians of Robeson County, D'Arcy McNickle, Washington BIA,
          May 1, 1936................................................   175
        Baker Report, 1935...........................................   189
        Pearlman Report, November 1935...............................   280
        Seltzer Report, 1936.........................................   362
        Indians of North Carolina, Report No. 677, September 19, 1914   389

                             LUMBEE RECOGNITION ACT

                                  ----------

                            WEDNESDAY, JULY 12, 2006

                                           U.S. Senate,
                                   Committee on Indian Affairs,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 9:30 a.m. in room
    106, Senate Dirksen Office Building, Hon. John McCain (chairman
    of the committee) presiding.
        Present: Senators McCain, Dorgan, Thomas, and Burr.

       STATEMENT OF HON. JOHN McCAIN, U.S. SENATOR FROM ARIZONA,
                 CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

        The Chairman. Good morning. The committee will come to
    order.
        This morning the committee will receive testimony on S.
    660, the Lumbee Recognition Act, which was introduced by
    Senators Dole and Burr. The Lumbees have pursued Federal
    recognition for their community as an Indian tribe for over 100
    years, and it appears they have garnered significant support
    for those efforts within their State. In 1956, 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, in one statute Congress both
    recognized the tribe and terminated it.
        For the record, my position has generally been to oppose
    Congressional recognition. There is an administrative process
    at the Department of the Interior providing a rigorous review
    of groups seeking to be recognized as Indian tribes, and I am
    usually in favor of relying on the expertise of that process to
    establish the legitimacy of these groups. Nevertheless, I
    understand that the 1956 Lumbee Act was enacted during the
    termination period of the 1950's, a time when many of our
    Indian tribes were not treated fairly.
        I also understand the Lumbee Tribe submitted a petition
    with the Department of the Interior some years ago, and were
    told that they are statutorily barred from that process by this
    1956 act. The frustration felt by this community in being
    unfairly caught in no man's land is also entirely
    understandable. S. 660 would address this injustice by amending
    the 1956 act to provide full Federal recognition to the tribe.
    However, Congressional recognition of tribes usually engenders
    some controversy, and this situation appears to be no
    different.
        The witnesses today will provide testimony both pro and con
    as to the unique history of the Lumbee. I also welcome our
    colleagues from the Senate and House who have sponsored this
    legislation. Vice Chairman Dorgan.
        [Text of S. 660 follows:]

      STATEMENT OF HON. BYRON L. DORGAN, U.S. SENATOR FROM NORTH
           DAKOTA, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

        Senator Dorgan. Mr. Chairman, thank you very much.
        When reading the briefing material for this hearing, I
    asked for a time line to be prepared for me. So over 3 pages
    came to me with a time line, starting back in the early 1700's,
    and it goes on and on and on. This is a very unusual, very
    interesting and in some ways controversial issue. I am
    interested in learning as much as I can from this hearing, as
    much as is available. We want to know about the Lumbee Tribe
    and its history and what it has been confronted with with
    respect to the 1956 act and other related issues.
        So we recognize this is a controversial issue. We think the
    best way to address it is to have a hearing, have all the sides
    come and present testimony. We are very appreciative that many
    of you have done so today. And I welcome our colleagues as
    well.
        The Chairman. Senator Thomas.

       STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM WYOMING

        Senator Thomas. Thank you, Mr. Chairman. I don't have a
    statement, really. I appreciate your having this hearing.
    However, there was some talk about bringing this to the floor
    directly, and I think it should properly have a hearing, and I
    appreciate that. Thank you.
        The Chairman. Thank you very much, Senator.
        We now would like to welcome our dear friend and colleague,
    the Honorable Elizabeth Dole, and our friend from the House of
    Representatives, the Honorable Mike McIntyre. Welcome, Senator
    Dole, and thanks for being here.

       STATEMENT OF HON. ELIZABETH DOLE, U.S. SENATOR FROM NORTH
                                CAROLINA

        Senator Dole. Thank you, Mr. Chairman.
        Mr. Chairman, Mr. Vice Chairman, thank you very much for
    holding this important hearing today. Senator Thomas, Senator
    Burr, delighted to be with you and to have an opportunity to be
    with you and to have an opportunity to express my deepest
    thanks to each of you for your leadership on so many issues
    affecting Native Americans.
        We are here this morning to discuss tribal recognition. The
    Lumbee Tribe of North Carolina has waited, Mr. Chairman, more
    than 100 years for full Federal recognition and 50 years in
    order to right a wrong that denied them the benefits granted to
    every other recognized tribe. I introduced the legislation we
    are considering today, the Lumbee Recognition Act, because I
    deeply believe that it is the right thing to do. In fact, it
    was the very first bill that I introduced as a new member of
    the U.S. Senate.
        With more than 50,000 members, the Lumbee Tribe is the
    largest east of the Mississippi River, as well as the largest
    non-federally recognized tribe in America. Joining us today are
    Lumbee Chairman Jimmy Goins and other members of the Lumbee
    Tribe who have journeyed here to make their case yet once
    again.
        As many of you will remember, this committee held a hearing
    on the Lumbee Recognition Act on September 17, 2003, the very
    same day that Hurricane Isabel was bearing down on North
    Carolina and moving up the East Coast. Undeterred, members of
    the Lumbee Tribe traveled in the face of that powerful storm,
    determined to make it to their Senate hearing.
        It is this resolve of the Lumbees, even after years of
    struggles and disappointments, that inspires me to take up this
    fight alongside them and to advocate for the recognition they
    rightfully deserve. I welcome the support of my good friend,
    Senator Richard Burr, who has joined me in introducing the
    Lumbee Recognition Act. And I greatly appreciate the hard work
    Congressman Mike McIntyre is doing in the House on this issue.
    I thank you both for the opportunity to join together today in
    this effort.
        In addition, I would like to note the endorsement, Mr.
    Chairman, of North Carolina Governor Mike Easley, who wrote
    last week to this committee to express his strong support for
    Lumbee recognition. Mr. Chairman, I request that the Governor's
    comments be included in the record.
        The Chairman. Without objection, so ordered.
        [Referenced information appears in appendix.]
        Senator Dole. For more than a century, the Lumbees have
    been recognized as American Indians. North Carolina formally
    recognized the tribe in 1885, and 3 years later, in 1888, the
    tribe began what has become a very long quest for recognition
    and assistance from the Federal Government. Over the years,
    many bills were introduced in Congress to provide the Lumbees
    with Federal recognition. But these bills were never acted upon
    or were passed by only one chamber.
        Finally, in 1956, Congress passed the Lumbee Act. But there
    was a caveat: The Lumbees were denied the full benefits that
    every other federally recognized tribe received. Refusing to
    accept this partial nod to their legitimacy and their proud
    heritage, the Lumbees and their allies in Congress have been
    unrelenting in the request for what the tribe deserves: To be
    treated by the Federal Government like every other recognized
    tribe.
        There are some who argue that the Lumbee should be required
    to go through the Bureau of Indian Affairs [BIA], rather than
    through legislation. However, the Lumbee Act of 1956 actually
    prohibits the tribe from going through the BIA process. As the
    law now stands, the Lumbee Tribe can only be recognized by an
    act of Congress. Just one other tribe, the Tiwas of Texas, face
    a similarly unfair situation, following the passage of a
    comparable bill in 1965.
        But in 1987, Congress enacted special legislation to
    recognize them. This makes the Lumbees the only tribe in the
    country still trapped in this legal limbo and ineligible for
    the administrative acknowledgment process because of an earlier
    act of Congress.
        The BIA process is reserved for tribes whose legitimacy
    must be established. As we know, that is certainly not the case
    with the Lumbees. Their legitimacy has been established time
    and time again. 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,
    descended from the historic Cheraw Indians. There is no need to
    waste the tribe's or the Government's time and money again.
        Let me also underscore, it has been documented by GAO that
    getting through the BIA process can be arduous, to say the
    least, and lengthy. A 2001 GAO report revealed it can take up
    to 15 years to resolve petitions for recognition. And a 2005
    follow-up report underscored that even with some improvements
    to the BIA process, it would still take years for BIA to work
    through its current backlog of recognition petitions and even
    longer to consider new petitions. It is clear that even if the
    Lumbee could legally go through BIA, this would only impose yet
    another lengthy delay on this tribe.
        Over the last several years, I have had many opportunities
    to visit with the Lumbees. One occasion in particular stands
    out in my mind, a 2003-rally in Robeson County with my good
    friend, Congressman McIntyre. This rally brought together the
    entire community, uniting people of all ages, all races, all
    backgrounds for a common goal: Getting the Lumbee Indians the
    full recognition and benefits they deserve.
        In the last Congress, this committee unanimously approved
    the Lumbee Recognition Act. I urge you to once again report
    this bill out of the committee as expeditiously as possible.
    Simply put, this is about fairness. It is about righting a
    wrong and allowing future generations of Lumbees to benefit
    from the recognition for which their ancestors have fought
    tirelessly.
        Following Congressman McIntyre, this committee will hear
    testimony from several other distinguished panelists, including
    Chairman Goins, a dear friend and determined advocate for his
    tribe. And Arlinda Locklear, a very talented attorney and
    nationally recognized expert on Indian tribes. In 1984,
    Arlinda, a member of the Lumbee Tribe, became the first Native
    American woman to appear before the U.S. Supreme Court.
        Dr. Jack Campisi will testify once again. He is a professor
    at Wellesley College and an expert on tribal and Lumbee issues.
    Dr. Campisi has actually lived among the Lumbee in Robeson
    County while conducting his research.
        In closing, let me thank you again, Mr. Chairman, Mr. Vice
    Chairman, for holding this important hearing. And I thank you
    for the privilege of presenting my heart-felt views on the
    issue of fairness for the Lumbee people. Thank you.
        The Chairman. Thank you very much, Senator Dole.
        Congressman McIntyre, welcome.

    STATEMENT OF HON. MIKE McINTYRE, U.S. REPRESENTATIVE FROM NORTH
                                CAROLINA

        Mr. McIntyre. Thank you, Senator McCain, good to be with
    you.
        In addition to Governor Easley's remarks that Senator Dole
    pointed out, we would like to have in the record and we would
    like to ask unanimous consent to submit the remarks of
    Congressman Robin Hayes, who was an original cosponsor of this
    bill in the U.S. House.
        The Chairman. Without objection, so ordered.
        [Prepared statement of Mr. Hayes appears in appendix.]
        Mr. McIntyre. Thank you, Senator.
        Mr. Chairman and members of the committee, thank you for
    this opportunity to testify before you today regarding Federal
    recognition for the Lumbee Indians. And a special thanks to my
    colleagues, Senators Dole and Senator Burr, for their
    leadership and their work on this important effort.
        In the late 1500's, when English ships landed on the shores
    at Roanoke Island on the North Carolina Coast, the Englishmen
    discovered Native Americans. Included among those Native
    Americans were both the Cheraw and Pee Dee Indians, who are
    direct ancestors of the Lumbee Tribe. Later, in 1888, the
    Lumbees made their first effort at Federal recognition. For at
    least 500 years, Lumbee Indians have been inhabitants of this
    land. And for over one-half the time that our country has been
    in existence, 119 of the 230 years, the Lumbee Indians have
    been seeking the recognition and respect that they deserve. As
    the largest tribe east of the Mississippi and the largest non-
    recognized tribe in America, it is unfathomable that this tribe
    of 55,000 people has never been fully recognized by our own
    U.S. Government.
        Mr. Chairman, the time for Lumbee recognition has come. It
    was Congressional action that put the Lumbees in this situation
    in 1956, and it will take Congressional action to resolve it.
    As my friend, Senator Dole, pointed out, we have a direct
    precedent, the Tiwa Tribe of Texas, who was in a similar
    situation and that was resolved by Congress, leaving the
    Lumbees as the only tribe in this unresolved position.
        Mr. Chairman and members of the panel, I was born and
    reared in Robeson County, North Carolina, the primary home of
    the Lumbee people. I go home there every weekend, and I 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, Mr. Chairman, are here in the
    audience with us today and traveled throughout yesterday and
    the night to be here, are my friends, many of whom I have known
    all my life.
        They are important to the success of everyday life in
    southeastern North Carolina, and their contributions in our
    society are numerous and endless. From medicine and law to
    business and banking, from the farms and factories to the
    schools and churches, from government, military, and community
    service, to entertainment and athletic accomplishments, the
    Lumbees have made tremendous contributions to our county, our
    State, and indeed, our Nation.
        In fact, in my home county, the former sheriff and the
    current clerk of court, registrar of deeds, chairman of the
    county commissioners, superintendent of the public schools, and
    the representative in the State legislature of the area where I
    live, as well as two of our district court judges and one of
    our superior court judges, are all Lumbee Indians, obviously
    engendering great respect in our local community and throughout
    our region.
        Mr. Chairman, those contributions are being recognized by
    our colleagues. In the U.S. House, through the support of H.R.
    21, legislation that I introduced on the day that we were sworn
    into the Congress of this session, they have supported the
    opportunity to grant Lumbees Federal recognition. I am pleased
    to report to the Senate Indian Affairs Committee that 211
    members of the U.S. House have cosponsored this recognition.
    These cosponsors come from different parts of the country and
    from both political parties. But they all agree that the time
    for recognition has come.
        Lumbee contributions are also being recognized back home by
    both the public and private sector, from city councils to
    county commissions, from the chamber of commerce to
    Southeastern Regional Medical Center, all have endorsed the
    effort to grant the Lumbees Federal recognition.
        Mr. Chairman, in conclusion, let me urge this committee and
    the U.S. Congress not to delay any more on this issue. Justice
    delayed is justice denied. As you will hear from the next
    panel, the evidence is clear, cogent and convincing. It is time
    to say yes, yes to dignity and respect, yes to fundamental
    fairness, yes to decency, yes to honor, yes to Federal
    recognition. It is time for discrimination to end and
    recognition to begin.
        Thank you again for this opportunity to testify. I look
    forward to working with you and the committee for this long
    overdue recognition. May God grant that justice will finally be
    done. With your help, I am confident it will.
        [Prepared statement of Mr. McIntyre appears in appendix.]
        The Chairman. Thank you both very much. We appreciate your
    taking the time to appear before the committee, and we will
    look forward to hearing the other witnesses. Thank you very
    much.
        Our next panel is R. Lee Fleming, director, Office of
    Federal Acknowledgment, Department of the Interior. Before we
    begin with Mr. Fleming, I note that Senator Burr is here. Would
    you have an opening statement or comment, Senator Burr?

        STATEMENT OF HON. RICHARD BURR, U.S. SENATOR FROM NORTH
                                CAROLINA

        Senator Burr. Mr. Chairman, thank you.
        After the testimony from my colleagues, Senator Dole and
    Congressman McIntyre, I think everything has been said. But I
    would like to take this opportunity to urge my colleagues on
    this dias that they concentrate on two words that they heard:
    Equity and fairness. I believe that is at the root of why this
    hearing is being held, why Senator Dole has been so passionate
    at pursuing a legislative remedy. It is to achieve equity and
    fairness. And I believe that if you look at the history of this
    issue in detail, you will find that this Government has not met
    that threshold as it relates to this issue.
        I thank the Chair.
        The Chairman. Thank you very much, Senator Burr.
        Mr. Fleming, welcome. Please proceed.

       STATEMENT OF R. LEE FLEMING, DIRECTOR, OFFICE OF FEDERAL
               ACKNOWLEDGMENT, DEPARTMENT OF THE INTERIOR

        Mr. Fleming. Good morning, Mr. Chairman and members of the
    committee. My name is Lee Fleming, and I am the director of the
    Office of Federal Acknowledgment at the Department of the
    Interior.
        Groups seeking to be acknowledged as Indian tribes are
    reviewed through the office that I direct, and I am here today
    to provide the Administration's testimony on S. 660, the Lumbee
    Recognition Act.
        The acknowledgment of the continued tribal existence of
    another sovereign is one of the most solemn and important
    responsibilities delegated to the Secretary of the Interior,
    which the Department administers through its acknowledgment
    regulations at 25 C.F.R. Part 83. Federal acknowledgment of
    tribal status enables Indian tribes to participate in Federal
    programs and services and establishes a government-to-
    government relationship between the United States and the
    Indian tribe. Acknowledgment carries with it certain immunities
    and privileges which may include exemptions from State and
    local jurisdiction and the ability of newly acknowledged Indian
    tribes to undertake unique economic opportunities.
        Under the Department's acknowledgment regulations,
    petitioning groups must demonstrate that they meet each of the
    seven mandatory criteria. The petitioner must first,
    demonstrate that it has been identified as an American Indian
    entity on a substantially continuous basis since 1900; second,
    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, demonstrate
    that it has maintained political influence or authority over
    its members as an autonomous entity from historical times until
    the present; fourth, provide a copy of the group's present
    governing document, including its membership criteria; fifth,
    demonstrate that its membership consists of individuals who
    descend from an historical Indian tribe or from historical
    Indian tribes that combined and functioned as a single,
    autonomous political entity, and provide a current membership
    list; sixth, 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 last, seventh,
    demonstrate that neither the petitioner nor its members are the
    subject of Congressional legislation that has expressly
    terminated or forbidden the Federal relationship.
        The Department recognizes that under the U.S. Constitution,
    Congress has the authority to recognize a distinctly Indian
    community as an Indian tribe. But along with that authority, it
    is important that all parties have the opportunity to review
    all of the information available before recognition is granted.
    That is why the Department of the Interior supports a
    transparent recognition process that requires groups to go
    through the acknowledgment process.
        The Department's regulations provide a deliberative,
    uniform mechanism to review and consider groups seeking Indian
    tribal status. Notwithstanding that preference, the Department
    recognizes that some legislation is needed, given the unique
    status of certain Indians in North Carolina.
        In 1956, Congress designated Indians then residing in
    Robeson and adjoining counties of North Carolina as the Lumbee
    Indians of North Carolina. 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 of 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 the acknowledgment regulations and that the Lumbee
    Indians were therefore precluded from consideration for Federal
    acknowledgment under the administrative process. Because of the
    1956 act, legislation is necessary for the Lumbee Indians to be
    afforded the opportunity for tribal status under the
    Department's regulations. The Department would welcome the
    opportunity to assist the Congress in drafting such
    legislation.
        If Congress elects to bypass the regulatory process in
    favor of legislative recognition of the Lumbee in a manner
    granting full sovereign rights, then the Department makes the
    following comments on S. 660: S. 660 extends Federal
    recognition to the Lumbee Tribe of North Carolina and permits
    any other group of Indians in Robeson and adjoining counties
    whose members are not enrolled in the Lumbee Tribe to petition
    under the Department's acknowledgment regulations. The Office
    of Federal Acknowledgment has received letters of intent to
    petition from six groups from Robeson and adjoining counties.
    These groups may overlap with each other in governing bodies,
    membership and ancestry.
        In addition, we have identified over 80 names of groups
    that derive from these counties and all are affected by the
    1956 Lumbee Act. Some of these groups also claim to be the
    Lumbee Tribe. Therefore, we recommend Congress clarify the
    Lumbee group that would be granted recognition under this bill.
        One of the benefits or privileges available to recognized
    Indian tribes is the ability to conduct gaming under the Indian
    Gaming Regulatory Act. Under S. 660, any fee land that the
    Lumbee seeks to convey to the United States to be held in trust
    shall be considered an off reservation trust acquisition if the
    land is located within Robeson County, North Carolina, and
    gaming will be allowed on those lands under the provisions of
    IGRA.
        Under S. 660, the State of North Carolina has jurisdiction
    over criminal and civil offenses and actions on lands within
    North Carolina owned by or held in trust for the Lumbee Tribe
    or any dependent Indian community of the Lumbee Tribe. This
    bill, however, does not address the State's civil regulatory
    jurisdiction which includes jurisdiction over gaming, zoning
    and environmental regulations.
        We are concerned with the provision requiring the
    Secretary, within 1 year, to verify the Lumbee membership and
    then to develop a determination of needs and budget to provide
    Federal services to the Lumbee group's eligible members. In our
    experience, verifying a tribal role is an extremely involved
    and complex undertaking that can take several years to resolve
    with much smaller tribes. Moreover, S. 660 is silent as to the
    meaning of verification for inclusion on the Lumbee group's
    membership list.
        In addition, S. 660 may raise a constitutional 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
    program services and benefits to the Lumbee. Under the
    recommendations clause of the U.S. 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. 660, the Department
    feels that at a minimum, Congress should amend the 1956 act to
    afford the Lumbee Indians the opportunity to petition for
    tribal status under the Department's acknowledgment
    regulations. This concludes my prepared statement. I would be
    happy to answer any questions the committee may have.
        [Prepared statement of Mr. Fleming appears in appendix.]
        The Chairman. Thank you very much, Mr. Fleming.
        If legislation were enacted to repeal the 1956 act, so that
    the Lumbees can proceed through the normal process, can you
    estimate how many years it would take to make a final decision
    on a Lumbee petition from the date of enactment until final
    agency action?
        Mr. Fleming. Currently, the Office has a workload of 9
    groups on active and 10 groups that are ready. We have 4 teams
    that work on these decisions; 19 divided by 4 gives you an idea
    of the number of years that it will take to eliminate the
    workload. So we are looking at at least a wait of 14 into 19 is
    4 years, plus, before we begin an actual review of the Lumbee
    group's petition.
        The Chairman. You mentioned that there are other entities
    out there that under this bill would be somehow addressed, is
    that correct? In other words, according to your statement, as I
    understand it, you say we have identified over 80 names of
    groups that derive from these counties and are affected by the
    1956 act. Some of these groups claim to be the Lumbee Tribe.
    Elaborate a little bit on that.
        Mr. Fleming. We have six formal petitioning groups from
    Robeson and adjoining counties. Under the 1956 act that
    Congress enacted, any individuals or groups from Robeson and
    adjoining counties is designated as Lumbee Indian. So when a
    petitioning group submits a petition from Robeson and adjoining
    counties, then we know that the 1956 act prohibits us from
    moving forward in reviewing those petitions.
        Six groups, the Cherokee Indians of Robeson and Adjoining
    Counties, the Lumbee Regional Development Association, the
    Cherokee Indians of Hoke Count, Inc., the Tuscarora Nation of
    North Carolina, the Tuscarora Nation East of the Mountains, and
    the Tuscarora Nation of Indians of the Carolinas, those are
    groups that are in Robeson and adjoining counties that are
    affected by the Lumbee Act.
        In our administrative correspondence files, we have
    identified the names of other groups that have sent in
    correspondence claiming that they are an Indian tribe located
    in Robeson and adjoining counties. And as I mentioned in my
    testimony, that there is an overlapping of membership, there is
    an overlapping of some of the governing bodies and there is an
    overlap of the ancestry of these groups with the Lumbee.
        The Chairman. How do you address that issue, given, if we
    passed S. 660, how would we address these multiple conflicting
    names and groups?
        Mr. Fleming. This is the complex issue. Under our
    regulations, we have a thorough review of the membership lists.
    We have a review of the ancestries and we would know who is
    who. If this is enacted, sure enough, the Lumbee Tribe of North
    Carolina would be acknowledged. But then you would have a lot
    of these groups saying, perhaps our group was acknowledged. So
    there needs to be a clearer definition of who is actually being
    acknowledged in the bill.
        The Chairman. And you also mentioned that the legislation
    requires that within 1 year there would have to be, 40,000
    people would be listed and authenticated, have access to the
    Lumbee's tribal roll. Do you think you could accomplish that in
    1 year?
        Mr. Fleming. Honestly, I do not think it could be
    accomplished in 1 year. At one hand, 34,000 members was a
    figure that was provided. The 2000 Federal census has 51,913
    members. And then we heard earlier around 53,000 members. Even
    with smaller tribes, we have estimated that it would take 3 to
    4 years to verify the membership rolls. Because the membership
    rolls are representative of the enrolment files of each and
    every individual of the tribe.
        And so it is critical that it be well defined and in the
    case where we have so many other groups that may be involved,
    we have to review their records and a clear definition has to
    be made. Because ultimately there are programs and services
    that are going to be afforded to the individuals who are
    members of a federally-recognized tribe.
        The Chairman. And the issue of, with recognition of course
    would come the normal process if the tribe decided to engage in
    Indian gaming, is that true?
        Mr. Fleming. That is right. There is a regulatory process
    for Indian gaming.
        The Chairman. Thank you very much, Mr. Fleming.
        Senator Dorgan.
        Senator Dorgan. Mr. Fleming, thank you very much.
        The groups that you now say or you now recognize are
    prohibited from petitioning would all be groups considered part
    of the Lumbee Tribe, is that correct? I mean, you have named
    disparate groups, or maybe not disparate groups, but they all
    think that they are a tribe. All of them would be prohibited at
    this point, as I understand you, from seeking to petition for
    tribal recognition?
        Mr. Fleming. They would be prohibited from being reviewed
    under our acknowledgment regulations.
        Senator Dorgan. So whatever that universe is, that is what
    you describe to be the Lumbee Tribe?
        Mr. Fleming. That is correct.
        Senator Dorgan. But
        Mr. Fleming. The potential. The potential.
        Senator Dorgan. The definition of that universe is not very
    clear at this point.
        Mr. Fleming. The 1956 act was not clear. But it was clear
    in that individuals located in Robeson and adjoining counties
    are considered Lumbee individuals.
        Senator Dorgan. Mr. Fleming, in the briefing that I had
    read last evening from the staff, it said that between 1899 and
    1956, there were a number of attempts made to provide Federal
    recognition for the Lumbees. The Congressional hearings were
    held, the Department of the Interior investigated prepared
    reports in 1912, 1914, and 1933. And the summation of all of
    that indicated a belief that the Lumbee tribal group or
    Cherokee Indians of Robeson County, as they were known, were
    probably descended from an historic Indian tribe. However, the
    Department of the Interior also indicated an inability to
    establish with absolute certainty with which historic Indian
    tribe the group was affiliated.
        Have you gone back and reviewed the attempts in 1912, 1914,
    and 1933 to seek recognition? And that was at a time prior to
    the 1956 act when they were not prohibited from seeking
    recognition. Have you reviewed that at all and have any
    understanding of what difficulties were encountered then
    relative to what you would encounter now?
        Mr. Fleming. Yes, Senator Dorgan; I have looked at the
    previous bills and reports. And there have been approximately
    26 bills introduced since 1899. These bills and the associated
    reports have provided possible historical tribes and there are
    quite a number of them. I do have a list of the different names
    of historical tribes that have appeared in these bills, as well
    as the associated reports.
        Senator Dorgan. Mr. Fleming, I am really inquiring more
    about the Department of the Interior investigations that
    occurred as a result of the Lumbees back at that point, prior
    to 1956, on several occasions seeking recognition through a
    process that would have been available to them. Have you
    reviewed the Interior Department's evaluations and
    investigations at that point?
        Mr. Fleming. Yes; I have.
        Senator Dorgan. What is your conclusion on that?
        Mr. Fleming. I would say that a lot of the previous reports
    were identifying historical tribes that may be associated with
    the Lumbee. One report indicated that they descend from the
    Cherokee, another report from the Cheraw, another report from
    the Croatan. One report included a whole group of different
    historical tribes, such as the Eno, the Hattaras, the Keowee,
    the Shakori. Even John R. Swanton, who is a renowned
    anthropologist, in a 1946 report for the Bureau of American
    Ethnology, stated that there were several possibilities that
    the Lumbee could descend from either the Cheraw, the Siouan
    Indians of Lumber River, the Keowee, and another group known as
    the Waxhaw. There is a whole number of possibilities. But in
    his report, he felt that there was a strong connection perhaps
    to the Cheraw or the Keowee.
        Senator Dorgan. Just a couple of other brief questions. If
    recognized, would this be one of the larger Indian tribes in
    the country, in your opinion?
        Mr. Fleming. It would be one of the larger Indian tribes in
    the United States.
        Senator Dorgan. And if recognized, prior to recognition,
    with respect to the issue of gaming, I assume there are two
    issues here, first, is the ability to engage in a compact for
    gaming, and the second, is the ability to access for tribal
    members the Indian health service and housing and other things
    that are available to recognized tribes. Fee land that would be
    purchased prior to recognition in any part of that county could
    be turned over to the Federal Government to be held in trust,
    and then that land would be a part of the gaming opportunities,
    provided that it would be acceptable in a compact with other
    officials, would that be correct?
        Mr. Fleming. That is my understanding.
        Senator Dorgan. Mr. Chairman, I thank Mr. Fleming for his
    background. It was very helpful.
        The Chairman. Senator Thomas.
        Senator Thomas. Thank you, Mr. Chairman.
        You know, this is kind of confusing. Apparently this tribe
    is very old, 100 years, I think she said something about that.
    And then it went through the 1956 thing, that is 50 years ago.
    And maybe you touched on this, but I still don't understand.
    There have been lots of tribes that go through lots of problems
    and get listed and so on. What has been unique and peculiar
    about this? Why hasn't this gone through the regular process?
        Mr. Fleming. It is because of the 1956----
        Senator Thomas. Well, what about before that? Didn't they
    ever try before that?
        Mr. Fleming. Yes; there are considerable bills that have
    been submitted to Congress prior to 1956, the first being in
    1899. And as you had heard earlier, even North Carolina had
    acknowledged the Croatan Indians in----
        Senator Thomas. But Wyoming didn't recognize the Arapahos.
    What is unique about this whole thing? Why isn't this done like
    everyone else?
        Mr. Fleming. I think the uniqueness is the lack of pinning
    down the historical tribe. And as you heard, there were quite a
    number of possibilities. You even heard that there was contact
    with the early colonists, as early as 1585. But from 1585 to
    1885, 300 years, there is a considerable period of time where
    evidence would be needed to fully understand who this group was
    and is.
        Senator Thomas. So you still can't identify this as a
    tribe, is that right, based on what you know now?
        Mr. Fleming. We have not been able to review the evidence
    to come out with a determination.
        Senator Thomas. And would you be able to do that, given the
    opportunity?
        Mr. Fleming. If the 1956 act is amended to allow the
    thorough review, we would be able to come out with a proposed
    finding, share that finding with all parties concerned, invite
    public comment and then review those comments and then
    eventually come out with a final determination.
        Senator Thomas. I see. So did you say there has just been
    one tribe authorized by Congressional action, such as is being
    asked for here?
        Mr. Fleming. There have been other tribes that have had
    Congressional recognition. And we can provide you a list of all
    the tribes.
        Senator Thomas. Do you mean they have not gone through the
    process that you are talking about?
        Mr. Fleming. There have been a few, yes.
        Senator Thomas. What has been the basis for that?
        Mr. Fleming. Some of them have been involved in Indian land
    settlement claims and as a result, they were recognized by
    Congress as Indian tribes.
        The Chairman. When was the last time there was legislation
    such as this passed, Mr. Fleming?
        Mr. Fleming. I believe it was in the Omnibus Bill. It was
    the Shawnee, which is located in Oklahoma. And that was in
    2000, I believe, December 2000.
        Senator Thomas. But that was a land controversy, is that
    right?
        Mr. Fleming. In that case, it was multi-complex, the
    Shawnee were a group that was incorporated in with the Cherokee
    Nation. There were previous treaties involved that had grouped
    the historical Shawnee with the historical Cherokee. In order
    for it to be recognized outside the Cherokee Nation, then that
    legislation was introduced.
        Senator Thomas. I see. Okay. Thank you very much, Mr.
    Chairman. This is a confusing thing, to say the least.
        The Chairman. Thank you, Senator Thomas.
        Senator Burr.
        Senator Burr. Thank you, Mr. Chairman.
        I was just looking at the chart of the tribes that have
    been recognized since 1960, either by the process or by
    Congressional recognition. I didn't have time to count them
    all. I think there are more that have been recognized by
    Congressional recognition than by the administrative process.
    Mr. Fleming, I would ask you to supply for the committee the
    precise numbers in every category.
        And let me try to clarify Senator Thomas' question. There
    were a number of folks that were caught in the 1956 act,
    recognized and then in the same act, their ability to go
    through a formal process taken away. Who, other than the
    Lumbees, are still waiting to have that resolved?
        Mr. Fleming. There are several groups, several tribes that
    were terminated during that period of time where there was the
    national policy that Congress held and that affected a great
    number of tribes in California and Oregon and other parts of
    the country. A good number of those tribes have been restored.
    In fact, in 1994, Congress passed the Federally Recognized
    Indian Tribe List Act, which repudiated the termination policy,
    and also had a statement that it would put a priority on
    restoring a terminated tribe.
        Congress has the authority to terminate a tribe, and
    Congress has the authority to restore that tribe. So if a tribe
    had been terminated by Congress, then only Congress may restore
    that tribe. There are still a few that have not yet been
    restored, either in California or Washington.
        Senator Burr. Let me restate that. Any tribe that Congress
    chooses to terminate only Congress can re-recognize that tribe,
    is that what you said?
        Mr. Fleming. Restore, correct.
        Senator Burr. Okay. I think that is important for my
    colleagues up here to understand why we have been asked to be
    involved. Is it not the case that other tribes that were caught
    in the 1956 termination having in fact been Congressionally
    recognized?
        Mr. Fleming. A good number have been restored.
        Senator Burr. Okay. Let me go, if I could, to sort of the
    BIA criteria, if one were to go that route. The BIA considers
    from historical times until present. What is historical times?
        Mr. Fleming. Historical times is first sustained contact
    with the Europeans.
        Senator Burr. Considering that most tribes in the United
    States don't have or didn't keep documented evidence of having
    existed, political influence, going out of the criteria down
    the list, from historical times until present, how many tribes
    that were recognized before we had a BIA process would be
    recognized under the criteria established today?
        Mr. Fleming. There are 561 federally recognized tribes.
    Each of these tribes have unique histories. They come from
    various parts of the country. There are records that are
    available on the Federal level, the State level, the county
    level, the local level, the tribal level or group level. On all
    of those levels, there is tremendous evidence that can be
    researched and found for this process. And we do have a lot of
    groups that have been successful in documenting the histories.
        Of the 561 federally recognized tribes, I would venture to
    say they would all be able to demonstrate meeting all the seven
    mandatory criteria.
        Senator Burr. All the seven criteria. So for Senator
    Thomas, and I don't even know if he has tribes, I assume that
    he does, where the U.S. Government didn't go to until several
    years after this country was created, how do they prove a
    historical political influence when the U.S. Government didn't
    go there?
        Mr. Fleming. There are a lot of colonial records that are
    available. You have documents that will demonstrate that there
    were leaders of these tribes. There are documents that will
    show that there are individuals who followed the leadership.
    Those are the types of documents that are provided in this
    process to demonstrate political authority.
        Senator Burr. But everybody has to meet all seven?
        Mr. Fleming. All seven must be met.
        Senator Burr. Let me go to 83.7(g), the last one. Neither
    the petitioner nor its members are the subject of Congressional
    legislation that has expressly terminated or forbidden the
    Federal relationship. Is that not what we did in the 1956 act?
        Mr. Fleming. Exactly.
        Senator Burr. Are the Lumbees not, will they not flunk
    83.7(g)?
        Mr. Fleming. This is the criterion that has been the
    subject of discussion. This is the one that we have
        Senator Burr. So we would have to change the BIA criteria
    for the Lumbees to have any chance of going through BIA review
    and being accepted?
        Mr. Fleming. The Department has recommended amending the
    1956 act to allow all groups of Robeson and adjoining counties.
    True, we could
        Senator Burr. Rather than change the BIA criteria, we would
    just go back in history and say, you know, we really didn't
    mean it in 1956 that you couldn't participate in this. So we
    are going to give you 83.7(g).
        Mr. Fleming. We look forward to the opportunity to working
    with the committee staff, as I stated in the testimony, in
    crafting legislation to allow for an amendment to the 1956 act.
        Senator Burr. You are actually a tribal member, aren't you?
        Mr. Fleming. I am.
        Senator Burr. Which tribe?
        Mr. Fleming. The Cherokee Nation in Oklahoma.
        Senator Burr. I don't think that anybody questions your
    commitment. You and I have met several times. I think that your
    knowledge is incredible for Native Americans. I feel fortunate
    that we have you in the capacity that we do.
        You said that you are not opposed to the bill, but that it
    needs clarification and improvement, so that it doesn't reach
    out further than what the intent is as it relates to potential
    petitioners. Is that accurate?
        Mr. Fleming. The Department's position is that the group go
    through the process.
        Senator Burr. Correct me if I am wrong, I heard in your
    statement you are not opposed to the bill, but believe it needs
    clarification, if that were the choice that Congress chose.
        Mr. Fleming. I believe my statement did not present a
    position of opposition and it did not present a position of
    support.
        Senator Burr. Okay. I might have written it as a paraphrase
    versus a quote.
        Through the BIA process and anybody who has petitioned
    through it and been recognized as a tribe, have any of those
    petitioners faced the situation where additional groups have
    filed petitions at the same time they were going through
    recognition, or is this just unique to the Lumbees?
        Mr. Fleming. There are many groups that have, groups that
    are possibly related. Some groups, when they get into the
    process, they may even splinter because of a political conflict
    that occurs. We have several groups that are from the same
    region. There could be the possibility of overlapping of
    membership. There are a lot of complexities and the answer to
    your question, yes, there are other groups that
        Senator Burr. So this is not unusual. It just so happens
    that the name of potentially a petitioner would be the Lumbee,
    but as more people see that that might be an option, they have
    decided to file petitions on their behalf, their interest. And
    that is not unusual in applications that have come in in the
    past?
        Mr. Fleming. Correct.
        Senator Burr. Good. In the 1930's, we had the Indian
    Reorganization Act. Is it true that the Office of Indian
    Affairs recommended that the tribe put land in a trust to set
    up for resettlement? Are you aware of that?
        Mr. Fleming. I believe in some of the reports there had
    been Indian Reorganization Act activities that took place
    during that time period. I am not well versed in the details.
        Senator Burr. Would that not suggest that the Office of
    Indian Affairs believed that this was a tribe that was going to
    be recognized, or would they have gone through that process?
        Mr. Fleming. I believe that there were many groups
    throughout the United States that were being looked at at that
    time for the Indian Reorganization Act. There was a whole
    process involved. But I do not know precisely all the details
    that may have been affected to some of these groups.
        Senator Burr. Mr. Chairman, I realize that the committee
    has been very patient with me. I think at the heart of this is
    that there is from 1888 up until 1956 where the Lumbees did
    follow the appropriate process in this country. Office of
    Indian Affairs reviewed, 1912, Government went down, as a
    matter of fact, the folks who went down and did that review
    came back and made a recommendation that they are a tribe, they
    should be recognized. The Department of the Interior ignored
    it, in 1915 the same thing happened. In 1930 the Office of
    Indian Affairs, based upon the Reorganization Act suggested
    that resettlement land might be put in a trust. In 1956,
    everybody on the committee knows what happens.
        In the 1960's, we rewrote what the criteria was going to be
    for that point forward for recognition. Everything that we look
    at is sort of thrown out the window. I would only ask you one
    last question. The results of the 1956 act, as it relates
    specifically to the Lumbees and the fact that they were
    recognized and terminated in the same legislation, that that
    termination denied them the ability at any point between then
    and today to go through the BIA process and what happened to
    others who were caught in that same 1956 recognition and
    termination but recognized by Congress, do you believe that the
    Lumbees have been treated equitably and fairly?
        Mr. Fleming. I believe that the Lumbee have had an
    opportunity, since 1978, to go through the process. And in
    fact, they did initiate a letter of intent and submitted a
    documented petition. As the Department was preparing the
    technical assistance review letter to understand any
    deficiencies in the evidence under the seven mandatory
    criteria, this is when the question of the 1956 act appeared.
    And there was a concern over 83.7(g).
        Because of that, then the Office of the Solicitor of the
    Department of the Interior was asked to review the 1956 act.
    That is when the opinion came through that the Department could
    not move forward in the review of the Lumbee Petition, as well
    as other groups of Robeson and adjoining counties. That is why
    the Department has consistently advised or recommended that the
    1956 act be amended to allow the same equitable action that has
    been provided to the other petitioners that have gone through
    this process.
        Senator Burr. I appreciate the answer on behalf of the BIA.
    I really asked the question from the standpoint of you, Mr.
    Fleming, as a Native American. Do you believe that the Lumbees
    have been treated fairly and equitably in comparison to
    everybody else that went through the 1956 act? It is probably
    unfair to ask for a personal observation from a Federal
    employee, so I will not solicit the answer, I will only say to
    the chairman, thank you for your accommodation of time. I yield
    back.
        The Chairman. Mr. Fleming, on several occasions you have
    appeared before this committee. I appreciate your informed and
    unbiased opinion that you have provided this committee numerous
    times in the past, including today. I know that Senator Dorgan
    shares my view. Thank you very much. Thank you for being here.
        Mr. Fleming. Thank you.
        The Chairman. The next panel is Jimmy Goins, tribal
    chairman, Lumbee Tribe of North Carolina. He is accompanied by
    Arlinda Locklear, attorney for the Lumbee Tribe. Michell Hicks,
    principal chief, Eastern Band of Cherokees, and Dr. Jack
    Campisi, Anthropologist Consultant to the Lumbee Tribe of North
    Carolina.
        I would like to welcome the witnesses. We will begin with
    Chairman Goins. Your complete written statements will be made
    part of the record, without objection. Please proceed, Chairman
    Goins.

    STATEMENT OF JAMES ERNEST GOINS, TRIBAL CHAIRMAN, LUMBEE TRIBE
    OF NORTH CAROLINA, ACCOMPANIED BY ARLINDA F. LOCKLEAR, ESQUIRE,
            ATTORNEY FOR THE LUMBEE TRIBE OF NORTH CAROLINA

        Mr. Goins. Good morning, Chairman McCain and Vice Chairman
    Dorgan, Senator Thomas. Thank you for the opportunity to
    express my people's strong support for S. 660.
        I bring the Lumbee Tribe's greetings and appreciation to
    our great friends, Senator Dole and Senator Burr. The tribe and
    the members who are here today express our gratitude for this
    hearing.
        I have with me this morning Dr. Jack Campisi, an
    anthropologist who is a nationwide expert on non-federally
    recognized tribes, and who has years of experience with us
    Lumbees; and Arlinda Locklear, the tribe's lawyer on the
    recognition effort and also a member of the tribe.
        I am Jimmy Goins, chairman of the Lumbee Tribe. All three
    of us have written statements that I request be made part of
    the hearing record.
        The Chairman. Without objection.
        Mr. Goins. Dr. Campisi will orally summarize his statement
    and all three of us will be available for questions from the
    committee.
        My kinsmen signed a petition that first sought Federal
    recognition for our people in 1888. The State had just
    recognized the tribe and set up a school system for the Lumbee
    children. But the tribe had too little funding and asked
    Congress for help. Congress referred our petition to the
    Department of the Interior, and the Department said no to our
    people. The Department said it would cost too much.
        Ever since, the Department has opposed recognition of the
    Lumbee Tribe because of the cost of service, not because we are
    not an Indian tribe. Since 1888, our people have repeatedly
    sought Federal recognition from Congress directly and from the
    Department of the Interior.
        The most insulting process we were subjected to came from
    the Department of the Interior. After the passage of the Indian
    Reorganization Act, the Department told our people that if we
    could be certified as one-half or more Indian blood we would be
    able to organize under a constitution and become recognized. In
    1936, the Department sent anthropologists down to our community
    to check blood quantum. Only 209 of our people agreed to submit
    themselves to this examination. He checked the blood, he
    measured their teeth, he looked at the appearance of their
    cheek bones, then he performed the famous pencil test to test
    the texture of their hair.
        Out of the 209, he certified 22 individuals that now whose
    descendants, hundreds of their descendants, are now enrolled
    with the Lumbee Tribe, and two of their descendants have
    previously served on our tribal council. But in the end, the
    Department refused to allow these individuals to organize, once
    again denying the recognition of the tribe.
        In 1956, Congress finally did pass and act for the Lumbees.
    But it gave with one hand and took with the other hand. The
    bill started out as a recognition legislation. But when the
    Department of the Interior asked Congress to amend the bill to
    include termination language, the Congress did so, putting the
    tribe half in and half out of the Federal relationship.
        Because of the 1956 Lumbee Act, only Congress can now
    extend full Federal recognition to the tribe. S. 660 would do
    this.
        The tribe has waited long enough to be treated just like
    all other Indian tribes. It has been more than 120 years now.
    The tribe has been processed and studied enough. I have here a
    stack of studies on Lumbee history, all done by Congress and
    the Department. I ask the committee to make these a part of the
    record here today. It is time for all this to end and for
    Congress to complete what they started in 1956 by enacting S.
    660.
        When my Government needed me in Vietnam, I was ready to go.
    And I was acknowledged as an American Indian. My enlistment and
    discharge papers identified me as such. I did faithful service
    and was awarded the Purple Heart and the Bronze Star. But on my
    return to my country, to my country, my Government refused to
    acknowledge my people for what they are. This pains me and
    every other Lumbee veteran that fought for our country. Now we
    find ourselves having to fight against our country.
        Finally, let me put to rest some of the myths about our
    people, myths that some use to oppose our recognition effort.
    Let's start with the State of North Carolina recognized us in
    1885, but under different names. We did not choose those names.
    Let me repeat that. We did not choose those names. The State
    legislature of North Carolina chose those names. The only name
    we ever chose was Lumbee, derived from the name of the river
    where we always lived, which is not uncommon among Indian
    people. But whatever the name, we have always been there and
    are the same people today.
        Second, some say Congress should not recognize a tribe,
    only the Department should. But this denies reality. The
    majority of tribes recognized today, including the Eastern Band
    of Cherokee, were recognized by Congress, not the Department of
    the Interior. Why shouldn't Congress recognize the Lumbee?
        Now, some worry about the cost of recognizing the Lumbee
    Tribe, the same reason that the Department of the Interior has
    always used to oppose us. That is really not a fair recognition
    for opposing recognition of the tribe. And even if it was fair,
    the costs are usually inflated. We have used the number of
    members who residing in the service area, about 34,000, not the
    entire membership of 53,000, to determine the cost of service.
    This is accurate, since services are usually available only to
    those in the service area. And the Lumbee Tribe has always
    indicated willingness to work with the Congress, as only the
    Congress can do, to deliver those services in a responsible
    way.
        And finally, the most insulting basis for some who oppose
    our bill is to say we are not even Indian. They don't know us.
    They haven't been in our communities. And yet they dispute
    every Congressional and Federal record on our people.
        We will match the strength of our history and community
    against any other Indian tribe. As Dr. Campisi will testify, we
    are in fact an Indian tribe. Gentlemen, the truth is that we
    are an Indian tribe. The Tribe knows this truth, and we believe
    Congress' records on us demonstrate this truth.
        Now on behalf of the Lumbee people, I urge this committee
    to report our bill out favorably. Thank you.
        [Prepared statement of Mr. Goins appears in appendix.]
        The Chairman. Thank you very much.
        Chief Hicks, welcome.

     STATEMENT OF MICHELL HICKS, PRINCIPAL CHIEF, EASTERN BAND OF
                               CHEROKEES

        Mr. Hicks. [Greeting in native tongue.] Hello and good
    morning, Chairman McCain, Vice Chairman Dorgan, members of the
    Committee on Indian Affairs, and with deepest respect to our
    Senator Dole and Senator Burr from our home State of North
    Carolina.
        Thank you for allowing me to testify today on behalf of the
    Eastern Band of the Cherokee. The Eastern Band is a federally-
    recognized tribe based on the Qualla Boundary in Cherokee, NC.
    We have 13,500 members, and we are the largest federally
    recognized tribe east of the Mississippi River. We share a
    common language and deeply held cultural identity with two
    other Federally recognized tribes, the Cherokee Nation and the
    Keetowah Band of Cherokee based in Oklahoma.
        The Cherokee tribes have a long history of dealings with
    the United States. Of course, some of that history, Mr.
    Chairman, with all due respect, was less than honorable. In the
    1830's, thousands of Cherokees, both young and old, died when
    the U.S. Army rounded up tribes in the east and forced them to
    the west. We call that travesty The Trail Where They Cried. The
    Eastern Band's ancestors were the Cherokees who resisted that
    trail of tears and some who found their way back to the Great
    Smoky Mountains.
        For centuries, the Cherokee people have fiercely protected
    our identity. We have a living, breathing culture with unique
    spoken and written language. Many have tried to take our
    language. Many have tried to take our culture. But none have
    succeeded. Our long-defended identity is threatened by several
    groups throughout the southeast, the east and the north, who
    claim or have at some point claimed to be Cherokee, as we have
    heard today, and whose legitimacy as such is questionable at
    best.
        We believe that the Lumbee are one of many groups who fall
    into this category today, again as we have heard. Since 1913,
    over 90 years ago, the Eastern Band has been concerned about
    this issue of recognition. Long before gaming, in 1913, long
    before they took the name Lumbee, this group sought recognition
    from the State of North Carolina as the Cherokee Indians of
    Robeson County. Over our opposition, that recognition was
    granted, and for more than 40 years they were State recognized
    as a Cherokee tribe.
        In 1924, the Lumbee sought Federal recognition from the
    United States Congress as ``The Cherokee Indians of Robeson and
    Adjoining Counties.'' And in 1932, they sought once again to be
    recognized by Congress as a Cherokee tribe. Congress rejected
    both of those attempts. Today, all three of the federally
    recognized Cherokee tribes who make up the greater Cherokee
    Nation strongly oppose this legislation. Furthermore, the
    United South and Eastern Tribes and other tribes from across
    the country oppose today's legislation.
        Mr. Chairman, let me give two specific reasons why we
    oppose this bill. Then I would like to offer a fair solution
    for the Lumbee. First, the integrity of our long government-to-
    government relationship with the United States is undermined
    when politics and emotion, rather than the facts about tribal
    identity, drive the Federal recognition decisions.
        And second, Mr. Chairman, the Office of Federal
    acknowledgement at the Interior Department, not the Congress,
    has the experts to make determinations based on the facts about
    tribal identity and tribal recognition. And Mr. Chairman, there
    are several facts that I would like the committee to consider
    today.
        First, the fact is that the Lumbee group has pursued
    legislation like this at least 13 times over the last 100
    years. And Congress has rejected every attempt. But here we are
    again. The fact is they have sought recognition as four
    different tribes, self-identifying themselves as the Croatan,
    the Siouan, the Cheraw and again we have heard today, the
    Cherokee people, the Principal People. The fact is that experts
    say those claims don't make sense, because those tribes
    represent three completely different linguistic groups. The
    fact is, Mr. Chairman, those experts say the claimed ties to
    the historic Cheraw Tribe are tenuous at best.
        Mr. Chairman, there is an established administrative
    process to review these issues and make a fact-based decision.
    For these reasons, we strongly oppose the passage of S. 660,
    and we urge you to consider another approach, one that will
    give the Lumbee a fair and equitable and timely chance to meet
    the established criteria at the Office of Federal
    Acknowledgment. If they can meet those standards, which are
    reasonable, but they are complete, then they will be recognized
    as a tribe and will have earned all the benefits of Federal
    recognition, as the other 561 tribes have.
        Mr. Chairman, please remember that the Lumbee submitted a
    petition for acknowledgment to the Interior Department on
    January 7, 1980. On November 20, 1989, the Interior Solicitor
    determined that they could not complete the process because of
    the 1956 Lumbee Act. But Mr. Chairman, that was over 17 years
    ago. If the Lumbee had agreed to legislation giving them a fair
    shot at the administrative process, then I am sure that they
    would have an answer today.
        The question we ask is whether the Lumbee want to avoid the
    administrative process because they believe it is unfair, or
    because they know it will truly examine the factual issues
    about Lumbee tribal identity. The Eastern Band of Cherokee
    Indians and its sister tribes of the Cherokee Nation urge you
    to protect the integrity of all Indian nations and oppose this
    legislation.
        Mr. Chairman and committee, I want to thank you for the
    opportunity to testify today. It is a privilege to be here. May
    God bless each of you and your families. [Remarks in native
    tongue.]
        [Prepared statement of Mr. Hicks appears in appendix.]
        The Chairman. Thank you.
        Dr. Campisi.

     STATEMENT OF JACK CAMPISI, ANTHROPOLOGIST CONSULTANT, LUMBEE
                        TRIBE OF NORTH CAROLINA

        Mr. Campisi. Good morning, Mr. Chairman and members of the
    committee. I have worked with the Lumbee Tribe for more than 20
    years, conducting field research and analyzing historical
    records. It is my professional opinion that the Lumbee Tribe
    exists as an Indian tribe, and has done so from first sustained
    contact.
        I based my conclusion on three main factors that I will
    summarize from my more detailed written statement. First, the
    historical record is clear that the Lumbees descend from the
    historic Cheraw Tribe. John Herbert, the commissioner of Indian
    Trade, drew a map in 1725 that placed the Cheraw Tribe in the
    same location as the modern day Lumbee Tribe. As you can see on
    this map, land records dating back to the 1730's show the sale
    of Cheraw tribal land as marked where Cheraw old field is
    located. A newspaper account from 1771 identifies a Cheraw-
    settlement located on Drowning Creek. In 1809, the State of
    North Carolina changed the name of Drowning Creek to Lumber
    River.
        Finally, a 1773-document lists members of the Cheraw
    community showing the same uncommon surnames typical of the
    Lumbee Tribe today, including Locklear, Grooms, Chavis, and
    Dees. In the first Federal census of 1790, these same family
    names appear in the same place on Drowning Creek. Today's
    Lumbee Indians trace descent directly from these families. In
    fact, the oldest continuously documented Lumbee community, now
    known as Prospect, is located on the Cheraw tribal lands.
        Every expert who has examined Lumbee history has come to
    the same conclusion, that the Lumbees descend from the Cheraw
    and related tribes. Dr. John Swanton, of the Bureau of American
    Ethnology, did so in 1934. Dr. James Merrill, Professor of
    History at Vassar College and an expert on southeastern
    Indians, did so in 1989, as did Dr. William C. Sturdivant, the
    editor of the Smithsonian Handbook on North American Indians
    and the chief ethnologist at the Smithsonian Institution, all
    of this regardless of changes in names imposed by the State.
        Second, in my experience, I have never seen a stronger
    Indian community than exists among the Lumbee. To demonstrate
    this, I did a 1 percent random sample of Lumbee tribal members
    in 2002. The roll at that time consisted of approximately
    53,000 members. This sample revealed that 64.6 percent of the
    members live in the geographical core area defined as within a
    15 mile radius of Pembroke, NC. The evidence clearly shows that
    the majority of the Lumbee Indians live in communities that are
    exclusively or nearly exclusively Lumbee.
        I used the same random sample to determine an in-marriage
    rate of Lumbees. The random sample showed that 70 percent of
    Lumbee marriages are between tribal members. The historical
    record shows comparable high levels of geographic concentration
    and in-marriage. From these data, it is fair to conclude that
    the Lumbee Tribe demonstrates a remarkable rate of social
    cohesion, higher than many federally recognized tribes.
        Third, the tribe has a long history of tribal governance
    and intense political activity. Since 1885, the tribe has
    maintained an active political relationship with the State of
    North Carolina. For nearly 100 years, the tribe operated its
    own school system, established by the State legislature. Its
    leaders have persistently sought to secure Federal recognition
    since 1888 and they has over its long history vigorously
    defended the tribe.
        Let me give a couple of examples. In 1888, 54 tribal
    members signed a petition to Congress seeking Federal
    assistance in the funding of the tribe's school system.
    Virtually every Lumbee present today behind me descends from
    one or more of those tribal leaders. On another occasion, and
    also in defense of their schools, Lumbee tribal leaders lobbied
    the State of North Carolina to set aside a 1913-attorney
    general's opinion that held that Robeson County Board of
    Education could overrule the tribal leaders' decisions about
    enrollment in the Lumbee schools. In 1921, the State
    legislature confirmed the tribe's authority to decide
    enrollment in its schools.
        One last example of tribal leadership occurred in 1958 when
    the Ku Klux Klan announced a rally in the heart of Lumbee
    community. Lumbee leaders led a protest of the rally and
    dispersed the Klan.
        Lumbee churches have been and remain at the core of Lumbee
    leadership. There are more than 130 all-Indian churches among
    the Lumbees in Robeson County, the overwhelming majority with
    Lumbee ministers. Historically, leadership of the tribe arose
    out of the Lumbee churches. Most recently, the church leaders
    directed the effort to adopt a formal tribal constitution.
    Following a church-organized constitutional assembly, the tribe
    adopted its constitution in a special referendum in 2001.
        The churches continue to be the wellspring of political
    leadership and the central feature in continuing tribal
    identity. The extensive record of the tribe's history in the
    18th, 19th, and 20th centuries establish that the Lumbee
    Indians constitute an Indian tribe, even as that term is
    defined in the Department of the Interior's regulations. The
    tribe fails only on the last criterion in those regulations.
    That is, Congress has prohibited the Department from acting on
    the tribe's petition in the 1956 Lumbee Act. Thus, Congress can
    enact on S. 660 with full confidence that the Lumbees are in
    fact an Indian tribe.
        Thank you, Mr. Chairman.
        [Prepared statement of Mr. Campisi appears in appendix.]
        The Chairman. Thank you very much, Doctor.
        Chairman Goins, would you like to respond to Chairman
    Hicks' comments?
        Mr. Goins. The first thing I would like to say is that the
    implication was, were we afraid of the BIA process. When I
    finish, I am going to ask Arlinda to sum it up.
        But we don't trust the BIA. In 1934, they said themselves
    that we were descendants of the Cheraw Tribe. Then in 1956, if
    it wasn't for the Department of the Interior, we wouldn't be
    here today. It was the very insistence of putting the
    termination language in the 1956 act that we are here.
        So why would we trust that they have changed their mind
    now?
        The Chairman. Wasn't it the Congress that passed the 1956
    act that called for termination?
        Mr. Goins. Yes; but it was----
        The Chairman. Then why do you trust the Congress?
        Mr. Goins. But it is our understanding that Congress was
    influenced by the Department of the Interior to add the
    termination language, not the Congress itself.
        Ms. Locklear. If I may, Mr. Chairman, the chairman is
    correct that the legislative history of the 1956 Lumbee Act
    shows that as introduced, it did not contain termination
    language. It was intended as a straightforward recognition
    bill. It was amended in the Senate at the request,
    recommendation of the Department of the Interior to include the
    termination language expressly for the purpose of precluding
    the delivery of services to the tribe.
        And if I may add very briefly, Mr. Chairman, that is
    consistent with the entire history of the Lumbee's effort.
    Several witnesses have spoken today about the number of bills
    that have been introduced during the period 1899 to 1956 for
    the purpose of achieving recognition, the suggestion being made
    that those bills failed for the reason that the tribe simply
    didn't qualify as a tribe. That is not in fact the case. The
    legislative history demonstrates that those bills failed
    principally because of the persistent opposition of the
    Department of the Interior.
        The Chairman. Well, in all due respect, the Congress does
    not carryout the dictates of any department of Government. We
    are appointed as a separate body to deliberate and decide with
    the input of various agencies of Government. I have been here
    for more than 20 years and I have never followed the dictates
    of any branch of Government. We have received their advice,
    their counsel and their recommendations. But they do not
    dictate to us.
        Chairman Hicks, how did the Eastern Band of Cherokee become
    recognized?
        Mr. Hicks. Mr. Chairman, I would like to respond by saying
    first of all, there has never been a question about the
    Cherokee people. It is true that the Cherokee were recognized
    in 1868 by a Federal process. But you may recall, as in my
    testimony, that the Cherokee have had long dealings with this
    Federal Government. And again, I want to highlight that there
    has never been a question about the Cherokee people.
        The Chairman. Well, my question was, how did they become
    recognized?
        Mr. Hicks. Through the Federal process. And I also want to
    highlight, Mr. Chairman
        The Chairman. Not through a legislative act?
        Mr. Hicks. Through a legislative act. But I also want to
    highlight that at that point in time, there was not an
    acknowledgment process.
        The Chairman. Chairman Goins, have you thought about the
    issue of gaming operations in the event of recognition?
        Mr. Goins. Senator McCain, we started this process in 1888.
    That has never been an issue. Gaming came about almost 100
    years later. This is not about gaming. This is about jobs,
    health care and just doing what is right for the Lumbee people.
    This is about honor and dignity. No, gaming is not an issue
    with us.
        The Chairman. I would appreciate an answer to the question.
    Has it been a consideration as you have moved forward with this
    process?
        Mr. Goins. No, sir.
        The Chairman. Thank you very much.
        As I understand your testimony, Chairman Goins, you have a
    membership roll. How many do you have on that roll at this
    time?
        Mr. Goins. We can give you----
        The Chairman. Roughly.
        Mr. Goins. Roughly around 53,000, total membership.
        The Chairman. Thank you.
        I understand that if legislation were passed giving you an
    opportunity to go through the process, your review on that, at
    least according to your opening statement, would be that it is
    too long and too difficult a process, is that correct?
        Mr. Goins. Yes, sir.
        The Chairman. Thank you. Senator Burr.
        Senator Burr. Thank you, Mr. Chairman. I am not sure that
    anybody up here has ever accused the chairman of following any
    dictate from any of the agencies. His record is intact on that.
    [Laughter.]
        Chief Hicks, welcome.
        Mr. Hicks. Thank you, Senator.
        Senator Burr. I find it unfortunate that we have two North
    Carolina entities that don't necessarily find agreement. And
    let me say this for Chairman McCain's point, I personally
    believe we are long past the point of a normal process. Because
    to suggest that we took any entity and put them through a
    criteria that was established well after the Congress spoke,
    that even if they were prioritized to the top of the line would
    take 15 years I think is just an additional injustice that
    would be at the hands of the Congress. So my hope is that
    members will look at this in the context of the precedent that
    we as a body have done in the past. And as you said, the
    Cherokees were the result of recognition, legislative
    recognition of the Congress of the United States.
        Since 1960, we have had 15 recognitions by the
    Administration, administrative process. We have had 16
    recognitions by Congressional action. Chief Hicks, in 1972,
    when the Tonto Apache Tribe of Arizona was Congressionally
    recognized, did the Cherokees object to that, to your
    knowledge?
        Mr. Hicks. To my knowledge, Senator Burr, I don't believe
    the Cherokees objected to that. However, I would like to say
    that each one of these individual situations that you may bring
    to light today is based on its own merits.
        Senator Burr. And clearly, the points that you raised
    relative, two of them, to the Lumbees, could be applied to any
    of the 16 that I just referred to. In 1978, the Modoc Tribe of
    Oklahoma, you didn't object to. In 1982, the Cow Creek Band of
    the Umpqua Indians of Oregon, you didn't disagree with
    Congressional action.
        As a matter of fact, in 1987, what was the original Tiwa
    Tribe, recognized and terminated in the same legislation as the
    Lumbees, were Congressionally recognized but the Cherokees did
    not object to that recognition. In 1988, the Lac Vieux Desert
    Band of Lake Superior Chippewa Indians of Michigan,
    Congressionally recognized, no objection. The Coquille Tribe of
    Oregon in 1989, the Pokagon Band of the Potowatomi Indians of
    Michigan in 1994, Little River Band of Ottawa Indians of
    Michigan, Little Traverse City Band of Indians, all in 1994. No
    objections. There are objections as it relates to Congressional
    recognition of the Lumbees.
        Now, you raised three points of objection. The third point
    I find somewhat unique, because you said the cost was just too
    significant. What was the cost of Cherokee recognition? Do you
    have any idea?
        Mr. Hicks. The cost of Cherokee recognition, when thousands
    of the people, thousands of people died on the Trail of Tears,
    with all due respect, Senator. That is the cost of the Cherokee
    recognition.
        Senator Burr. But you put the objection to the Lumbees, the
    cost to the American taxpayer. We didn't, I don't think, as a
    Congress, apply a cost to Cherokee recognition, a cost to the
    American taxpayer. We looked at what we thought was an
    injustice and we tried to correct the injustice. I think that
    is what we are here today to do. I think we look at a mistake
    in 1956 and we look back and we say, had in 1960 Congress been
    smart enough to recognize the mistake they had made in
    recognition and termination all in the same piece of
    legislation, they would be done today. Had they recognized in
    1975, 1985.
        I am not here to try to second guess why brilliant people
    weren't here then. And I am also here to recognize the fact
    that brilliant people aren't here today. But as Chairman McCain
    has proven over and over again, sometimes you are at a certain
    place in time and you are asked to deal with things from an
    equality standpoint. I think that is where we are, as it
    relates to this.
        I think I would ask you, do you think the Lumbees, since
    1956, have been treated fairly and equitably?
        Mr. Hicks. Mr. Chairman, can I respond?
        Senator Burr. The question was to you.
        Mr. Hicks. I want to just point out in regards to your
    argument with the 1956 act, I think it was very clear at that
    point in time, with the other transactions that took place, and
    as your example with the Tiwa, it was very clear and Congress
    was very clear in regard to recognition and termination at that
    point. In regard to the 1956 act as it applies to the Lumbee,
    again, that act, as I interpret it and many others have, is
    that it only commemorated a name change and did not recognize,
    nor did it terminate an Indian tribe.
        The second point, Senator, is the CBO has calculated the
    effect of potentially the third largest Indian tribe in the
    United States to be close to, over a 4-year period, $700
    million to the budget of this U.S. Government.
        Senator Burr. But you, Chief Hicks, have suggested that
    what Congress should do is to follow the BIA process, seven
    steps of criteria, of which cost is not one of them. But you
    suggest that we should incorporate cost into whether we get
    involved or not.
        My only point is to point out that Congress will have to
    make a decision of the chairman, the vice chairman, both of
    whom, I trust their experience in this extremely much. If in
    fact the Congress of the United States chooses the BIA process,
    they may be recognized. I will still, as a member, look back
    and say that we did an injustice to a group who sought
    recognition and we may go then, not just since 1956 to the year
    2006, but 15, 20, or 25 years from now, before they might even
    find out yes or no. I think it is an injustice today, I think
    it would be an injustice to go that long.
        Let me, if I could, Mr. Chairman, just turn to Ms. Locklear
    for a second. I would like you to fill in any blanks that may
    have been left open by Mr. Fleming as it related to the Indian
    Reorganization Act in the 1930's, the Indian Affairs
    recommendation that Lumbee set land aside. Can you shed any
    light on that whole transition?
        Ms. Locklear. Yes, Senator; there is an extensive
    administrative record in that regard. Shortly after the passage
    of the Indian Reorganization Act, Mr. Fleming is correct, the
    Department did make an effort to outreach to groups all over
    the United States, including the Lumbee Tribe. There was
    correspondence between Commissioner Collier at the time where
    Commissioner Collier encouraged the tribal leadership, to the
    Lumbee tribal leadership, to contact the Solicitor's office at
    the Department of the Interior with regard to the possibility
    of obtaining recognition under the Indian Reorganization Act.
        They did so and received a letter from Felix Cohen who was
    the Solicitor of the Department of the Interior at the time,
    and of course, the preeminent author of the leading handbook on
    Federal Indian law. And Mr. Cohen wrote directly to the Lumbee
    leadership advising that the Indian Reorganization Act was
    available to the tribe, that if they were able to obtain
    certification of members of the tribe, as one-half or more
    Indian blood, those individuals could request the Department to
    take land into trust, adopt a constitution and thereby become
    organized.
        The tribe immediately did so and the Department dispatched
    Dr. Seltzer to the community in 1936 to engage in the process
    that Chairman Goins described. That did result in the
    certification of some individuals as half blood in the
    community. Only some, because very few Lumbees decided to
    subject themselves to that intrusive examination.
        At the end of the day, though, that failed as well, because
    the Department declined to take land into trust for the tribe,
    so that the tribe could not adopt a constitution. So that is
    yet again another administrative process that the tribe
    attempted to take advantage of, but failed because the
    Department opposed recognition of the tribe.
        Senator Burr. And can you, Ms. Locklear, shed any light on
    the 1912 and 1915 visits by the individuals?
        Ms. Locklear. Yes, Senator Burr; those came in response to
    bills that had been introduced by Congress to recognize the
    tribe. And let me add as a footnote there that if you look at
    the history of those bills, and much has been made about the
    various names that the tribe sought recognition under, or had
    been denominated by. Those were not names that were selected by
    the tribe. Those were names that were imposed on the tribe by
    the State of North Carolina. And the history of the recognition
    effort by the Lumbees shows that as soon as the State of North
    Carolina passed a State law recognizing the tribe under a
    certain name, then the delegation, the Congressional delegation
    introduced virtually the identical bill that the State had
    passed to obtain Federal recognition on the same terms.
        The tribe was never asked itself what its name would be
    until 1953, when it finally adopted the name Lumbee. Those
    studies followed two of those bills that had been introduced by
    the Congressional delegation to obtain recognition from the
    Congress shortly after recent legislation by the State. And at
    the Congress' request, the Department of the Interior
    dispatched special Indian agents to Robeson County to conduct
    an investigation of the tribe. Both of those investigations,
    which are included in the material that Chairman Goins asked to
    be made a part of the record, clearly demonstrate the Indian
    ancestry of the community, the strong ties of the community,
    the political authority and leadership within the community. In
    fact, one of those reports says that in the opinion of that
    investigator, the majority of the Indians in Robeson County are
    probably three-quarters or more Indian blood.
        Some of those reports actually recommended the Department
    support recognition of the tribe. But again, largely because of
    reasons of cost, the Department declined to do so. They opposed
    those bills and the bills were defeated.
        Senator Burr. Ms. Locklear, thank you for the
    clarification. It is incredibly apparent that Congress has had
    more involvement in this process of Lumbee recognition than
    just the 1956 act. It dates back quite a ways.
        Mr. Chairman, let me point out that we are blessed in North
    Carolina both with the Lumbees and the Eastern Band of the
    Cherokees, more importantly with the leadership of Chief Hicks
    and of Chief Goins. These two organizations are represented in
    an incredibly effective way, and I would like to thank both of
    them for being here as well as Mr. Campisi.
        Mr. Chairman, I yield.
        The Chairman. Thank you.
        Chief Hicks, how many people died in the trail of tears?
        Mr. Hicks. Estimates are about 5,000 people, sir, about
    one-third of the Cherokee Nation at that point in time.
        The Chairman. Senator Dorgan.
        Senator Dorgan. Mr. Chairman, thank you.
        First of all, thanks to those of you who have come today to
    appear as witnesses. I know that many have driven some ways to
    be a part of this. As I indicated when I gave an opening
    statement, when I tried to get a time line of what all this
    means, it goes back centuries. So might I ask how many are here
    from the Lumbee Nation, Lumbee Tribe?
        [Show of hands.]
        Senator Dorgan. Let me say that obviously there is some
    controversy here. These are not easy issues, but I think all of
    our witnesses have presented some very significant information
    to us with which Senator McCain, myself and other members of
    this committee can begin to evaluate what the proper response
    is. And I thank Senator Burr and our colleagues who have
    appeared, the Congressman and Senator Dole.
        So I think rather than ask a series of questions, I am
    scheduled to speak to an Indian education summit that is
    occurring now, so rather than ask a series of questions, I just
    want to say a special thank you for the presentations you have
    made. I think they are heart-felt and they address a very
    important issue and one that we will consider seriously. Thank
    you very much.
        The Chairman. I thank the witnesses. This hearing is
    adjourned.
        [Whereupon, at 11:15 a.m., the committee was adjourned.]
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                                A P P E N D I X

                                  ----------

                  Additional Material Submitted for the Record

    =======================================================================

     Prepared Statement of Jack Campisi, anthropologist consultant, Lumbee
                             Tribe, North Carolina

        I hold a doctorate in anthropology, have dedicated my career to
    research in tribal communities, and have taught these subjects as an
    adjunct professor at Wellesley College. Between 1982 and 1988, I
    conducted a number of studies for the Lumbee Tribe of North Carolina.
    Each of these included fieldwork in the community for periods of time
    varying from 1 week to 3 weeks. In all, I spent more than 20 weeks in
    Robeson County carrying out a variety of research projects. Besides
    being responsible for synthesizing the thousands of pages of
    documentation collected during the 10 years it took to carryout the
    archival research, and for designing and carrying out the community
    research, I had the honor of writing the petition that was submitted on
    December 17, 1987, to the Branch of Acknowledgment and Research [now
    the Office of Federal Acknowledgment] under the Federal regulations
    that govern acknowledgment of eligible Indian tribes, 25 C.F.R. Part
    183. Specifically, I drafted the Historical Narrative section, and
    researched and wrote the sections dealing with community and political
    continuity. Subsequent to the completion of the petition, I continued
    research with the Lumbee Tribe, most recently in 2002. The material
    that follows is based on my 20 years' research on the tribe's history
    and community.
        Over the course of the past 25 years, I have worked on 28 tribal
    petitions for Federal acknowledgment. None has exceeded the Lumbee
    petition in documentation and no group has exhibited more evidence of
    community cohesion and political continuity than the Lumbee Tribe. It
    is my professional opinion that the Lumbee Tribe exists as an Indian
    tribe and has done so over history. I will outline below the main
    arguments and evidence in support of this conclusion.
        At the time of sustained white contact, there existed a Cheraw-
    Indian community precisely where the Lumbees reside today. A 1725 map
    made by John Herbert showed the Cheraw Tribe between the Pee Dee River
    and Drowning Creek. In 1737, John Thompson purchased land in the same
    general area from the Cheraw, and in 1754, Governor Arthur Dobbs of
    North Carolina identified on ``Drowning Creek on the head of Little
    Pedee 50 families a mix Crew [or Breed] a lawless people filled the
    lands without patent or paying quit rents shot a surveyor for coming to
    view vacant lands being enclosed by great swamps.'' A document written
    in 1771 refers to ``the Charraw Settlement'' on Drowning Creek, and
    another document dated 1773 contains a list of names that connect this
    community to the Cheraw in 1737. Some of the same surnames as today's
    Lumbee population appeared on the list: Ivey, Sweat, Groom, Locklear,
    Chavis, Dees, and Grant (see Dr. James H. Merrill letter to Congressman
    Charlie Rose, October 18, 1989 for further discussion), attached to
    this statement. The 1790 Federal census identifies families with these
    same surnames around Drowning Creek and modern day enrolled Lumbees can
    prove genealogical descent from those Indians. Thus, the community
    mentioned in the references cited in above and the community of Indians
    described in 19th century documents were the same, and were the
    antecedents of today's Lumbee Tribe.
        The Federal census records are by far the best source of evidence
    concerning the early Lumbee community. It is clear from the names of
    the heads of households that the area of Robeson County around Drowning
    Creek, renamed the Lumber River in 1809 by the State legislature, was
    occupied almost exclusively by tribal members. Based on the 1850 census
    (the first census to provide the names of the individual's resident in
    each household), it is possible to describe the residency patterns of
    the Lumbee community. Thus, there can be no doubt that there was an
    Indian community present along Drowning Creek from the mid-1700's,
    separate from other communities in the area. It is also certain that
    this community had a well-established leadership structure and that it
    managed its affairs with relative autonomy.
        The oldest Lumbee community that can be continuously documented was
    called Long Swamp, now called Prospect and located within the core area
    in Pembroke and Smith townships the heart of the modern day Lumbee
    community. It is also located right in the heart of the so-called old
    field of the Cheraw, documented in land records between 1737 and 1739.
    The earliest census records show the presence in this community of an
    extended Locklear family continuously since 1790. Members of this
    extended family appeared among the tribal leaders, both by descent and
    marriage, who petitioned Congress for Federal recognition in 1888.
    Members of this extended family were also among those who were tested
    by physical anthropologist Carl Seltzer in 1936 for blood quantum. This
    includes Duncan Locklear and Henry Locklear, whose pictures are
    attached. The tribe's attorney, Arlinda, Locklear, is also descended
    from this extended family.
        Federal census and State court records document the continued
    existence of a separate Indian community meeting in Robeson County
    during the ante-bellem period. Although generally classified as free
    non-whites during the post-Revolutionary War years, the Lumbees appear
    to have been treated more generously than free blacks, being allowed to
    vote without challenge and to own property. However, in the 1830's two
    seemingly unrelated actions--one by the national government and the
    other by the State of North Carolina--converged, with disastrous impact
    on the Indians of the State. In 1830, Congress passed legislation
    providing for the removal of all Indian tribes east of the Mississippi
    River to land set aside in the ``Indian Territory'' in Oklahoma. Tribes
    such as the Cherokee and Creek were forced to leave. In the climate of
    removal, it did not benefit a tribe to overtly manifest its identity.
    Lumbees, like other Indians in the State, held their land in severally,
    but often without patents. Thus, they were in a precarious position.
        Added to the problem of tribal survival was the steadily worsening
    relationship between whites and ``people of color'' in North Carolina
    following Nat Turner's uprising in 1831. In 1835, the State passed a
    constitutional amendment denying tribal members rights they had
    previously enjoyed. Many refused to abide by the changes and some were
    charged with violations. One case, in particular, went far toward
    recognizing the Lumbees as Indians. In 1857, a William Chavers was
    arrested and charged as ``a free person of color'' with carrying a
    shotgun, a violation of State law. He was convicted, but promptly
    appealed, claiming that the law only restricted free Negroes, not
    persons of color. The appeals court reversed the lower court, finding
    that ``Free persons of color may be, then, for all we can see, persons
    colored by Indian blood, or persons descended from Negro ancestors
    beyond the fourth degree.'' The following year, in 1859, in another
    case involving a Lumbee, the appeals court held that forcing an
    individual to display himself before a jury was tantamount to
    compelling him to furnish evidence against himself. These cases
    generally resulted in the Lumbees establishing a special status under
    the law as Indians, one outside the limitations placed on others who
    were classified as ``free persons of color.'' From 1860 on, there is
    abundant evidence of tribal activity. During the Civil War the Lumbee
    Indians were prohibited from serving in the Confederate Army and were,
    instead, conscripted into labor gangs and assigned to build the
    fortifications at the mouth of the Cape Fear River to protect the city
    of Wilmington. The conditions were harsh and the treatment brutal. Many
    Lumbee men escaped and returned home where they hid out in the swamps
    of Robeson County. Besides Lumbees, the swamps provided a refuge for
    Union soldiers who had escaped from nearby Confederate camps. Because
    of their treatment by the Confederacy, and more particularly the Home
    Guard, the Lumbees gave assistance and protection to the Union
    soldiers. As the number of Lumbees and Union soldiers ``laying out''
    increased, so did the burden of feeding them. With so many men in
    hiding or conscripted, there were few to do the farm work. Gradually,
    the attitude of the Lumbees changed from a passive one to one marked by
    belligerence. In short order, a band emerged, led by the sons of Allen
    Lowrie.
        Matters came to a head in 1864 when members of the Allen Lowrie
    family and the local authorities came into armed conflict and a number
    of individuals on both sides were killed. In March 1865, the Home Guard
    captured Allen Lowrie and his son, William, and after holding them for
    a short time, executed them in a field near the father's house. This
    was followed by a virtual reign of terror during which the Home Guard
    tortured members of the Lowrie family and their kinsmen in order to
    learn the whereabouts of the band. With the death of his father and
    brother, Henry Berry Lowrie, who was barely 20 years old, took over the
    leadership of the band. For the next decade, led by Henry Berry Lowrie,
    and with the Indian community's support and protection, the band fought
    against local authorities who sought by a variety of means to oppress
    the Indian population in Robeson County. The Lowrie Band led a struggle
    that ended only after the disappearance of its leader in 1872, and the
    capture and death of the last of the band members in 1874. Henry Berry
    Lowrie remains a folk hero to the Lumbee Indians and his story is told
    every year in an outdoor drama called ``Strike at the Wind.'' By the
    1870's, the Lumbees were openly acknowledged to be Indians. While the
    Lowrie Band was carrying out its defense, others in the tribe were
    taking equally effective actions to assert their independence. Lumbees
    were denied access to the white schools in the county and they refused
    to attend the schools for blacks. This impasse was broken in 1885.
        In 1885, the State of North Carolina formally recognized the tribe
    as the Croatan Indians as a means of addressing the school issues. The
    State statute established a school system for the children of tribal
    members only. Tribal leaders exercised complete control over who could
    attend the schools. Each Lumbee settlement had a school committee that
    determined eligibility. In order to be eligible, an individual had to
    prove Lumbee ancestry back through the fourth generation, that is, back
    to the 1770's. Because of the rigorous manner in which these rules were
    enforced in the 19th century, school enrollment records provide an
    accurate basis for determining present day membership.
        In 1887, tribal members petitioned the State legislature again,
    requesting the establishment of a normal school to train Indian
    teachers for the tribe's schools. Permission was granted, tribal
    members raised the funds, and along with some State assistance, the
    normal school began training teachers for the expanding Lumbee school
    system. That normal school has been in operation continually since,
    evolving into Pembroke State University and, recently, the University
    of North Carolina at Pembroke.
        The tribe had difficulty, though, in supporting the Indian normal
    school financially. In 1888, the tribe petitioned Congress for
    assistance for its normal school. The request was sent by the House
    Committee on Indian Affairs to the Commissioner of Indian Affairs, but
    no action was taken for nearly 2 years. Finally, in 1890, Commissioner
    Morgan responded to the tribe, telling them that, ``So long as the
    immediate wards of the Government are so insufficiently provided for, I
    do not see how I can consistently render any assistance to the Croatans
    or any other civilized tribes.'' There is no doubt that the
    Government's rejection of assistance was based solely on economic
    considerations, the commissioner implying that if sufficient funds had
    been available, services would have been provided to tribes he referred
    to as ``civilized.''
        The Lumbees made frequent attempts over the course of the next 50
    years to receive assistance from the United States. In 1899,
    Congressman John D. Bellamy introduced legislation to provide
    educational assistance for the Croatan Indians (as the Lumbees were
    then called). Again, in 1910 and 1911, legislation was introduced in
    Congress to change the tribe's name and to establish ``. . . a school
    for the Indians of Robeson County, NC.'' To secure information on the
    tribe, the Indian office sent Charles F. Pierce, supervisor of Indian
    schools, to investigate. He reported favorably on the tribe, finding
    ``. . . a large majority as being at least three-fourths Indian.''' He
    described them as being law abiding and industrious and ``crazy on the
    subject of education.'' Pierce had no doubt that the Lumbees were
    Indians, or that they were a tribe. Nor did he doubt that Federal
    educational assistance would be beneficial. He opposed the legislation
    because, in his words, ``[a]t the present time it is the avowed policy
    of the Government to require States having an Indian population to
    assume the burden and responsibility for their education, so far as is
    possible.'' After lengthy deliberations, the bill passed the Senate,
    but not the House, because the chairman of the House committee felt
    that the Lumbees were eligible to attend the various Indian boarding
    schools.
        The tribe continued its efforts to secure Federal educational
    assistance, and in 1914, sent a delegation to Congress. Another
    investigation was carried out by the Indian Office at the direction of
    the Senate. Among other things, Special Indian Agent, O.M. McPherson
    found that the tribe had developed an extensive system of schools and a
    complex political organization to represent its interests. He noted
    that the Lumbees were eligible to attend Federal Indian schools, but
    doubted that these schools would meet their needs. His recommendation
    was that if Congress saw fit to establish a school, it should be one
    emphasizing agricultural and mechanical skills. Again, Congress took no
    action. Parenthetically, it should be noted that during this period
    tribal activity was generally at a low level across the United States.
    Not so for the Lumbees, who actively involved their congressmen in
    their efforts to achieve Federal recognition.
        During the 1930's, the tribe renewed its efforts to achieve Federal
    recognition. In 1932, the BIA asked the eminent anthropologist at the
    Bureau of American Ethnology John Reed Swanton for his professional
    opinion on the Lumbees. Swanton was emphatic concerning their Indian
    ancestry, specifying a Cheraw and other eastern Siouan Tribes as their
    ancestry. A later report by Indian Agent Fred Baker [1935], who had
    visited the Lumbee community, gave further support that they
    constituted a tribe. Baker discussed a resettlement project with the
    tribe in which the Government would acquire land for the Lumbees'
    support, an alternative to the share-cropping and credit system then
    the predominant means of Lumbee livelihood. Baker reported to Congress:
        It may be said without exaggeration that the plan of the Government
    meets with practically the unanimous support of all of the Indians. I
    do not recall having heard a dissenting voice. They seemed to regard
    the advent of the U.S. Government into their affairs as the dawn of a
    new day; a new hope and a new vision. . . I find that the sense of
    racial solidarity is growing stronger and that the members of this
    tribe are cooperating more and more with each other with the object in
    view of promoting the mutual benefit of all the members. It is clear to
    my mind that sooner or later Government action will have to be taken in
    the name of justice and humanity to aid them.
        However, the Bureau of Indian affairs did not support recognition
    of the tribe, despite four studies that all found the Lumbee to be
    Indian. The apparent reasons were the size of the tribe and the costs
    to the Government.
        Following the First World War, the Lumbees renewed their efforts,
    both in the State and with Congress, to improve their educational
    system. At the State level, they were able to get an appropriation of
    $75,000 for capital improvements at the Indian Normal School. The issue
    of the tribe's name had become a concern, and tribal leaders sought
    legislation in Congress to recognize the name adopted by the state
    legislature--The Cherokee Indians of Robeson and Adjoining Counties in
    North Carolina. Such a bill was introduced in the Senate in 1924, and
    at first received favorable support from the Secretary of the Interior,
    although Commissioner of Indian Affairs Charles H. Burke opposed the
    legislation. The Secretary later dropped his support and the bill died.
        The efforts to obtain congressional recognition were resumed in
    1932. Senator Josiah W. Bailey submitted a bill designating the Indians
    of Robeson and adjoining counties as ``Cherokee Indians,'' but this
    effort also failed. The following year another bill was proposed, this
    time designating the tribe as the ``Cheraw Indians,'' at the suggestion
    of Dr. Swanton. This name caused a split in the tribe, with those
    tribal members led by Joe Brooks favoring it, while others, led by D.F.
    Lowry opposing it, fearing it would jeopardize the tribe's control over
    its schools. Because of the split in the tribe, the effort failed.
        With the passage of the Indian Reorganization Act, Brooks and his
    supporters attempted to organize the tribe under a Federal charter.
    Because the tribe did not possess a land base, it was advised by
    Assistant Solicitor Felix Cohen to organize under the half-blood
    provision of the act. Cohen urged that the tribe apply for land and a
    charter under the name of the ``Siouan Indian Community of Lumber
    River.'' Brooks immediately submitted a proposal that mirrored Cohen's
    recommendations. Over the course of the next 2 years, the two projects
    of establishing recognition under the IRA and receiving land through
    the Bureau of Indian Affairs proceeded, when suddenly, in 1936, the
    land acquisition proposal was shifted from the BIA to the Rural
    Resettlement Administration, and the land that was to be purchased
    solely for Lumbee use, was opened to non-Indians. After a lengthy
    struggle, Brooks was able to have a part of the land set aside for
    tribal members, and incorporated under the name of the Red Banks Mutual
    Association.
        The tribe was no more successful in achieving recognition under the
    IRA. The BIA formed a commission of three to investigate the blood
    quantum of the Lumbees. In 1936, Dr. Carl C. Seltzer, an anthropologist
    and member of the commission, visited Robeson County on two occasions
    and took physical data on 209 Indians applying for recognition as one-
    half or more Indian blood. He found that 22 met the criteria. They were
    certified by the Secretary of the Interior. What made Seltzer's work so
    ludicrous was that in several cases he identified full siblings in
    different ways, one meeting the blood quantum requirement and the other
    not.
        After the second World War, the Lumbees again tried to achieve
    Federal recognition of their status as an Indian tribe. The issue of
    their name continued to cause them problems so, in 1952, the Lumbee
    leadership conducted a referendum on the name; at the tribe's request,
    the State funded and provided other assistance for the conduct of the
    referendum. Of 2,144 tribal members who voted, all but 35 favored the
    use of the name ``Lumbee,'' derived from the Lumber River upon which
    they had always dwelled. Armed with this overwhelming support, the
    leader of the movement, D.F. Lowry, asked the State legislature to
    adopt the change. The legislature approved the name change in 1953. The
    Lumbee Tribe then took its case to Congress, which in 1956 passed the
    Lumbee bill.
        There can be no doubt that for more than 200 years the Lumbees have
    been continuously and repeatedly recognized as American Indians. This
    was made explicit by the State in the 1880's and by the Federal
    Government from at least the beginning of the 20th century on. Federal
    and State officials have, on numerous occasions, reviewed the evidence
    and at no time have they questioned the fact that the tribe consisted
    of people of Indian descent. Federal reluctance to acknowledge the
    tribe centered on questions involving the extension of services. It was
    unfortunate that each effort by the Lumbees to clarify their Federal
    status and to receive services coincided with Federal Indian policy
    shifts away from the trust relationship: The General Allotment Act in
    1887; the Citizenship Act of 1924, and the termination policy of the
    1950's. The exception, the Indian Reorganization Act, which could have
    provided a means to recognition, was subverted by bad anthropology and
    bureaucratic indolence.
        Since the passage of the Lumbee Act, the tribe has faced a steady
    string of problems, beginning with an attempt by the Ku Klux Klan to
    intimidate tribal members in 1958 by a rally held within the Lumbee
    community. The tribe's reaction to this threat was a spontaneous
    gathering that drove the klansmen from the field and broke up their
    rally, a confrontation that focused national attention for a time on
    the Lumbee community. The tribal members have exerted their influence
    in other ways. In the 1960's they organized voter registration drives
    that made their influence felt on local politics, electing members of
    the tribe to State, county, and local public offices. When the local
    school authorities attempted to integrate only the black and Indian
    schools in the county, tribal members staged sit-ins and filed lawsuits
    to prevent the loss of tribal control over the schools. It must be
    understood that the school system was and is a key and integral part of
    tribal identity, and any threat to the tribe's control would be
    resisted. And resisted it was!
        While the tribe was struggling to maintain its schools, it was
    actively opposing the so-called ``double voting'' system, which allowed
    whites in the towns [which had separate school districts] to vote with
    whites in the county, who were in the minority, to maintain white
    control over the county school system. The students in the county
    school system were predominantly Indian and black. Tribal leaders took
    the case to Federal court, and after losing at the district court, won
    a reversal at the court of appeals, thus ending double voting.
        At about the same time, tribal leaders became involved in an issue
    with high symbolic value to the tribe. In 1972, the Board of Trustees
    of Pembroke State University decided to demolish the main building on
    the campus and replace it with another structure. Very quickly, a group
    formed to ``Save Old Main.'' The group waged a statewide and national
    campaign to save the building, and just at the point when it seemed
    that they would be victorious, the building was burned to the ground.
    The tribe overcame this blow and campaigned hard for the reconstruction
    of Old Main, which they eventually accomplished. The building was
    completed in 1975 and is now the site of the University of North
    Carolina at Pembroke's Native American Resource Center.
        Since the end of World War II, the tribe has grown in stature and
    influence. It was a primary mover in the establishment of North
    Carolina Commission of Indian Affairs, an organization that has become
    a model for state Indian commissions. The Lumbees have played an
    instrumental role in county affairs, where they have represented a
    moderating influence.
        The Lumbee history is one of continual resistance to outside
    domination, beginning in the 18th century. In 1754, the ancestors of
    the Lumbees were described as a community of 50 families living on
    Drowning Creek, ``mixt Crew [or breed] a lawless people.'' In 1773,
    they were identified as ``A List of the Mob Railously Assembled
    together in Bladen County [later subdivided to create Robeson
    County].'' In the 1830's, Lumbees opposed the laws limiting their
    freedoms, and in the Civil War and Reconstruction years, under the
    leadership of Henry Berry Lowerie, they actively opposed, first the
    Confederate government, and later the United States.
        The Lumbees are held together by the same mechanisms and values
    that have kept them together for the past 100 years or more, mechanisms
    and values that are typically Indian. First and foremost is the family,
    which serves as the center of Lumbee social activities. There is
    continual and widespread visiting among adults, particularly in the
    homes of parents and grandparents. Often, children live near their
    parents on land that was part of the family homestead. Members of
    families speak to and visit each other on an almost daily basis.
        The knowledge that the average Lumbee has of his or her kin is
    truly astounding. It is very common for individuals to be able to trace
    their parents' genealogies back five or more generations. Not only are
    individuals able to name their grandparents, great grandparents, great
    great grandparents et cetera, but often they can name the siblings of
    their ancestors, the spouses of their ancestors' siblings, relate where
    they lived in Robeson County, the church they attended, and the names
    of their offspring. It is common for an individual to name 200 or 300
    individuals as members of the immediate family. Every year there are
    family reunions that attract members from all over the country. They
    vary in size from small gatherings of a few 100 close kin to reunions
    involving 1,000 or more persons.
        This kinship pattern is well illustrated by the mapping of all
    Lumbee heads of household based upon the 1850 Federal census that I
    prepared for the tribe's petition for Federal acknowledgment. I
    identified 168 households headed by Lumbees in 1850. These heads of
    household are the ancestors of present day Lumbees and include
    descendants of the Locklear extended family documented on the old
    Cheraw field in 1790. The households were clustered in what is the core
    area today of the Lumbee Tribe; in some areas, such as the Prospect
    community, the area was almost exclusively Lumbee. The households
    showed an extremely high rate of in-marriage, resulting in complex and
    multiple kinship and marriage ties among the members--a pattern that
    continues today, as discussed below.
        The same kinship pattern is reflected in the list of tribal leaders
    who appeared on the 1887 petition to the State and the 1888 petition to
    the Congress. When these individuals' relationships, both marital and
    kin, are mapped, it again reveals a remarkably tight community. There
    are multiple ties, as shown by the chart submitted by the tribe with
    its petition for Federal acknowledgment. Thus, the high rates of
    marriage and geographic concentration of tribal members shown today, as
    discussed below, were evident in 1790 and 1850.
        Religion also serves to maintain the social boundaries of the
    Lumbee Tribe. By social boundaries, I mean that there are membership
    rules, special beliefs and values, a unique history, and a system of
    political authority and decisionmaking that marks the Lumbees as a
    separate community. There are more than 130 Lumbee Indian churches in
    Robeson County, and with one or two exceptions, each has a Lumbee
    minister. Church membership crosses family lines and settlement areas,
    thus drawing together different sectors of the tribe.
        For the Lumbees, church is more than a religious experience; it is
    one of their most important social activities. It involves many of them
    on a daily basis. The churches have Sunday schools, youth
    organizations, senior citizens' programs, Bible study programs, and
    chorus practices, to mention but a few of the activities available. It
    is common for members of the same household to attend different
    churches, and this behavior further acts to bring the tribal membership
    together.
        An additional and important activity of the churches is to hold an
    annual ``homecoming'' during the fall. The event is well advertised and
    individuals come from great distances to attend. Homecomings are held
    on Sundays after church service and are open to all Lumbees. Families
    and friends gather in a church's fellowship hall and share a leisurely
    meal together. Commonly, there are several hundred tribal members in
    attendance. Homecomings are informal gatherings which offer
    opportunities for members of a family from different congregations to
    join with other families.
        The family and the churches also provide the main avenues for
    political participation. In studying the Lumbee community, it is clear
    that leadership over the years has tended to surface in the same
    families from generation to generation, something like a system of
    inherited leadership. These leaders have gained prominence through
    their participation in the educational system and as church leaders. In
    the past, many of the tribe's most dynamic leaders were ministers and
    teachers. Today, there are other avenues for the demonstration of
    leadership qualities, but family, education and religious values still
    command attention.
        The importance of the role played by the Lumbee churches in the
    political life of the tribe cannot be overstated. During the 1990's, it
    was the leadership from the churches that initiated and sustained the
    process for preparing a tribal constitution. The delegates to the
    constitutional convention were selected by the churches and represented
    every segment of the tribe. After nearly 10 years of meetings,
    negotiations, court actions, and re-drafts, the constitution was
    presented to the tribal members for their approval. On November 6,
    2001, the tribal members voted on the constitution. Eighty-five percent
    of those voting voted in favor of adoption. The approved constitution
    is recognized by the State of North Carolina, and it is the tribe's
    governing document.
        To determine the level of geographic concentration of modern day
    Lumbees, a random sampling of tribal members was prepared. This is a
    methodology approved by the BIA in its analysis of a tribe's community
    in the administrative acknowledgment process. A 1 percent systematic
    sample was drawn from the Lumbee membership files as of December 2002.
    Of the 543 files drawn, 29 were found to contain the name of deceased
    individuals, or were missing from the files, leaving a balance of 514
    files. This corresponds closely with the number of active members
    [52,850] as reported to the Lumbee Tribal Council in December 2002.
        The residency pattern of the Lumbee tribal members is divided into
    three categories: Core area where the tribal members live in either
    exclusively or nearly exclusively Lumbee geographical areas; those
    living somewhere in North Carolina; and those living elsewhere.
    Included in the first category are the following communities in Robeson
    County: Pembroke, Maxton, Rowland, Lumberton, Fairmont, St. Paul's, and
    Red Springs. Within these communities are areas that are exclusively
    [or nearly so] occupied by Lumbees. These areas are reflected on the
    attached map.
        The data show that of the 511 for whom there was residency data,
    330 [64.6 percent] live in the core area, 102 [19.9 percent] live in
    the State of North Carolina, and the 79 [15.4 percent] live elsewhere,
    almost all of them in the United States. This high degree of geographic
    concentration establishes the existence of a Lumbee community, even
    without any further evidence. See discussion below. Based on census and
    other data, the Tribe demonstrates the same high level of geographic
    concentration going back well into the nineteenth century, or as far as
    there are data available.
        A second indication of community is the level of in-marriage within
    a community. Using the same sample, there were 276 records that
    provided information on the age and marital status of individuals. Of
    these, 49 were younger than 16, the age selected as marriageable.
    Another 23 were identified as single, leaving 204 with known marriage
    partners. Of this number 143 [70 percent] were married to another
    Lumbee tribal member. Of the remaining 61, 59 were married to non-
    Indians and 2 were married to members of other tribes. Again, this high
    in-marriage rate establishes the existence of a Lumbee community, even
    without any further evidence. See discussion below. As with residency,
    based on census and other data, it is certain that the Tribe can
    demonstrate comparably high in-marriage rates for the preceding
    periods, going back well into the nineteenth century, or as far as
    there are data available.
        As discussed above, the Lumbee Tribe of North Carolina organized,
    ran, and largely financed its own school system and teacher's training
    college for nearly 100 years. It has had and continues to have a
    complex network of churches that exclusively or nearly exclusively
    serve the tribal members. Many of these churches are tied together by
    three exclusively Lumbee 10 organizations--the Burnt Swamp Baptist
    Association [60 churches], the North Carolina Conference of the
    Methodist Church [12 churches], and the Lumber River Holiness Methodist
    Conference [9 churches]. The others are non-affiliated. All of these
    demonstrate clear political authority within the community that is
    accepted as such by the outside world.
        A specific example of tribal political authority in the education
    context is illustrative. In 1913, State Attorney General Thomas Bickett
    issued an opinion that the Robeson County Board of Education, then
    controlled by non-Indians, had authority to overrule a Lumbee Indian
    school committee's decision to exclude a child who did not meet the
    tribe's eligibility requirements from an Indian school. This was
    unacceptable to the tribe. Tribal leaders sought and obtained State
    legislation in 1921 that reaffirmed the tribe's authority to determine
    eligibility to attend the Lumbee schools.
        Another example of Lumbee political autonomy outside the context of
    education involved the ultimate political control--the ability to
    directly elect leadership for the Town of Pembroke located in the heart
    of the Lumbee community and occupied almost exclusively by Indians. At
    the time of its incorporation in 1895, State law required that public
    officials of the town be appointed by the Governor rather than
    elected--the only incorporated town in the State so governed. Under
    pressure from Lumbee tribal leaders, this State law was changed in 1945
    to allow for direct election of town officials by the residents there,
    just as in all other incorporated towns in the State. Since then, the
    mayor and town council of Pembroke have all been Lumbee Indians.
        From the 1960's on, the Lumbee leadership sought to maintain
    control over their schools and college, and when that was no longer
    possible, to share political power in Robeson County. They instituted
    lawsuits to abolish double voting, fought to save the college's main
    administration building, and when that burned down, to have it rebuilt,
    and elect Lumbee leaders to county positions. The tribe submitted a
    petition for Federal recognition under 25 CRF 83. Finally, beginning in
    1993, the tribe began the process that eventually led in 2002 to the
    present constitution and tribal government. The process started with
    funds from a Methodist Church grant, the delegates were chosen from the
    participating churches, and the process was deeply influenced by church
    leaders. The results were overwhelming endorsed by the tribal
    population in two referenda--1994 and 2001.
        In 1978, the Department of the Interior established a regulatory
    process for the acknowledgment of Indian tribes. 25 C.F.R. Part 83. The
    Department has determined that the Lumbee Tribe is not eligible for
    this administrative process because of the 1956 Lumbee Act. However,
    the history and data establish that the tribe nonetheless meets the
    seven mandatory criteria used in the Department's regulations to define
    an Indian tribe. Those seven mandatory criteria are:
        (a) identification as an American Indian entity on a substantially
    continuous basis since 1900;
        (b) a predominant portion of the petitioning group comprises a
    distinct community and has existed as a community from historical times
    until the present;
        (c) the petitioner has maintained political influence or authority
    over its members as an autonomous entity from historical times until
    the present;
        (d) a copy of the group's present governing document including its
    membership criteria;
        (e) the petitioner's membership consists of individuals who descend
    from a historical Indian tribe or tribes which combined and functioned
    as a single autonomous political entity;
        (f) the membership of the petitioning group is composed principally
    of persons who are not members of any acknowledged North American
    Indian tribe;
        (g) Neither the petitioner nor its members are the subject of
    congressional legislation that has expressly terminated or forbidden
    the Federal relationship.
    Criterion (a) Identification as an Indian entity
        This criterion can be met by showing evidence of Federal, State, or
    county relationships, or identification by historians or social
    scientists, in books or newspapers, or by relationships with other
    tribes or national, regional or state Indian organizations since 1900.
    There are repeated and numerous identifications of the Lumbee Tribe as
    an Indian entity since 1900, as shown in the summary of the tribe's
    efforts to obtain Federal recognition above. There can be no serious
    question that the Lumbee Tribe can and has demonstrated this criterion.
    Criterion (b) Community
        This criterion provides a number of ways to demonstrate community,
    foremost among these are rates of marriage and residency patterns. The
    regulations provide that an Indian group has conclusively demonstrated
    this criterion by proof that 50 percent or more of its members reside
    in a geographical area composed exclusively or almost exclusively of
    tribal members, or that at least 50 percent of its members are married
    to other tribal members. These are the so-called high evidence
    standards. As established above, the Lumbee Tribe meets both these high
    evidence standards, both historically and in modem times. This means
    that the Lumbee Tribe has conclusively demonstrated community as
    defined by the regulations, typically the most difficult part of the
    administrative process for petitioning tribes.
    Criterion (c) Political
        The regulations provide that if community is proven by high
    evidence as exhibited by the Lumbee community, this is considered
    conclusive proof of political authority as well. In other words, the
    same high evidence of community exhibited by the Lumbee also
    conclusively demonstrates political authority for the Lumbee Tribe,
    both historically and in modern times. In addition, the actual evidence
    of political authority summarized above--from the substantial and
    active political relationship maintained with the State of North
    Carolina since 1885, repeated efforts organized by tribal leaders to
    obtain Federal recognition, and persistent resistance to challenges to
    tribal independence--show vibrant and effective political leadership
    within the tribe, both historically and in modern times.
    Criterion (d) Governance
        This criterion requires that a petitioner submit either a statement
    describing its system of governance or its governing document. By the
    adoption of a tribal constitution, one that has been recognized by the
    State of North Carolina, the tribe clearly demonstrates this criterion.
    Criterion (e) Descent from a historical tribe or tribes
        As to criterion (e), Dr. John R. Swanton, a member of the staff of
    the Bureau of American Ethnology, a Federal Government agency, and one
    of the Nation's foremost anthropologists and experts on American Indian
    tribes, particularly in the southeast, concluded in the early 1930's
    that the Lumbees are descended predominantly from Cheraw Indians. The
    Department of the Interior adopted this position in its 1934 statement
    to Congress on one of the proposed recognition bills, relying on Dr.
    Swanton's report. This has also been confirmed and supported by
    scholars such as Dr. William C. Sturtevant, Chief Ethnologist of the
    Smithsonian Institution and general editor of the Handbook of American
    Indians and Dr. James Merrell, Professor of History, Vassar College,
    and a leading authority on the colonial Carolinas. Both of their
    statements are attached.
    Criterion (f) Petitioner's members are not members of any federally
        recognized tribe
        The members of the Lumbee Tribe of North Carolina are not members
    of any federally recognized tribe. This can be demonstrated by a review
    of the tribe's genealogical data.
    Criterion (g) The petitioner has not been the subject of a Federal
        termination act
        The Solicitor for the Department of the Interior has determined
    that the 1956 Lumbee Act is an act forbidding the Federal relationship.
    Summary
        Typically, Indian tribes petitioning for acknowledgment under the
    administrative process have most difficulty with criteria (b) and (c),
    community and political authority respectively. Every tribe that has
    been denied acknowledgment through the process to date has failed
    because of the inability to prove these criteria, and perhaps others.
    As demonstrated above, the Lumbee Tribe's case on these criteria is so
    strong as to be conclusive. In light of the heavily documented history
    of the tribe since 1900, neither can there be any doubt about the
    Tribe's ability to demonstrate the other criteria.
        In the past few years, the BIA has opposed bills to recognize the
    Lumbee. The Bureau has complained that there is too little data,
    specifically that a genealogical link between the Cheraw Tribe on
    Drowning Creek and the present-day Lumbee Tribe on the renamed Lumber
    River cannot be made, despite the occurrence of shared and uncommon
    surnames. Of course, the failure of the dominant society to record the
    births and deaths of Lumbees before 1790 is no fault of the tribe; nor
    does this absence suggest that the Lumbee Tribe is not descended from
    the Cheraw Tribe. In fact, the Department testified in 1934 that the
    tribe was descended from the Cheraw Tribe, based upon the work of the
    eminent Dr. Swanton. The Department's earlier opinion is also
    corroborated by the professional opinions of Drs. Sturtevant and
    Merrill. Thus, the Department's more recent view should be taken as
    more intellectual curiosity than serious doubt about the origins of the
    tribe. And this new found curiosity should be judged in the context of
    the Department's long-standing determination to oppose recognition of
    the tribe, even in the face of its past judgment that the Lumbees truly
    are an Indian tribe.
        The extensive record of the tribe's history in the 18th, 19th, and
    20th centuries establish that the Lumbee Indians constitute an Indian
    tribe as that term is defined in the Department of the Interior's
    acknowledgment regulations. The tribe fails only on the last criterion,
    that is, Congress has prohibited the Department from acting on the
    Tribe's petition in the 1956 Lumbee Act. Thus, the Congress can act on
    S. 660 with full confidence that the Lumbees are, in fact, an Indian
    tribe.
                                     ______

       Prepared Statement of R. Lee Fleming, Director, Office of Federal
                   Acknowledgment, Department of the Interior

        Good morning, Mr. Chairman and members of the committee. My name is
    Lee Fleming and I am the director of the Office of Federal
    Acknowledgment at the Department of the Interior [Department]. I am
    here today to provide the Administration's testimony on S. 660, the
    Lumbee Recognition Act. The recognition of the continued existence of
    another sovereign is one of the most solemn and important
    responsibilities delegated to the Secretary of the Interior, which the
    Department administers through its acknowledgment regulations at 25
    C.F.R. Part 83. Federal acknowledgment, or recognition, of tribal
    status enables Indian tribes to participate in Federal programs and
    establishes a government-to-government relationship between the United
    States and the Indian tribe. Acknowledgment carries with it certain
    immunities and privileges, which may include exemptions from State and
    local jurisdiction and the ability of newly acknowledged Indian tribes
    to undertake unique economic opportunities.
        Under the Department's acknowledgment regulations, petitioning
    groups must demonstrate that they meet each of the 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 an historical Indian tribe or from historical Indian
    tribes that combined and functioned as a single autonomous political
    entity and provide a current membership list;
        (6) show that the membership of the petitioning group is composed
    principally of persons who are not members of any acknowledged North
    American Indian tribe; and
        (7) demonstrate that neither the petitioner nor its members are the
    subject of congressional legislation that has expressly terminated or
    forbidden the Federal relationship.
        A criterion is considered met if the available evidence establishes
    a reasonable likelihood of the validity of the facts relating to that
    criterion.
        The Department recognizes that under the U.S. Constitution Indian
    Commerce Clause, Congress has the authority to recognize a ``distinctly
    Indian community'' as an Indian tribe. But along with that authority,
    it is important that all parties have the opportunity to review all the
    information available before recognition is granted. That is why the
    Department of the Interior supports a recognition process that requires
    groups go through the Federal acknowledgment process because it
    provides a deliberative uniform mechanism to review and consider groups
    seeking Indian tribal status. Notwithstanding that preference, the
    Department recognizes that some legislation is needed given the unique
    status of certain Indians in North Carolina.
        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 of 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 the
    acknowledgment regulations, and that the Lumbee Indians were therefore
    precluded from consideration for Federal acknowledgment under the
    administrative process. Because of the 1956 Act, legislation is
    necessary for the Lumbee Indians to be afforded the opportunity to
    petition for tribal status under the Department's regulations. The
    Department would welcome the opportunity to assist the Congress in
    drafting such legislation.
        If Congress elects to bypass the regulatory process in favor of
    legislative recognition of the Lumbee in a manner granting full
    sovereign rights, then the Department makes the following comments on
    S. 660, as currently drafted.
        S. 660 extends Federal recognition to the ``Lumbee Tribe of North
    Carolina'' and permits any other group of Indians in Robeson and
    adjoining counties whose members are not enrolled in the Lumbee Tribe
    to petition under the Department's acknowledgment regulations. The
    Office of Federal Acknowledgment has received letters of intent to
    petition from six groups that may overlap with each other. In addition,
    we have identified over 80 names of groups that derive from these
    counties and are affected by the 1956 Lumbee Act. Some of these groups
    claim to be the ``Lumbee'' Tribe. Therefore, we recommend Congress
    clarify the Lumbee group that would be granted recognition under this
    bill. Not doing so could potentially expose the Federal Government to
    unwarranted lawsuits and possibly delay the recognition process.
        One of the benefits or privileges available to recognized Indian
    tribes is the ability to conduct gaming under the Indian Gaming
    Regulatory Act [IGRA]. Under S. 660, any fee land that the Lumbee seeks
    to convey to the United States to be held in trust shall be considered
    an ``on-reservation'' trust acquisition if the land is located within
    Robeson County, North Carolina, and gaming will be allowed on those
    lands under the provisions of IGRA. Prior to conducting class III
    gaming, the Lumbee Tribe of North Carolina would need to negotiate a
    gaming compact with the State of North Carolina. In addition, the
    Lumbee Tribe of North Carolina 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.
        Under S. 660, the State of North Carolina has jurisdiction over
    criminal and civil offenses and actions on lands within North Carolina
    owned by or held in trust for the Lumbee Tribe or ``any dependent
    Indian community of the Lumbee Tribe.'' The legislation, however, does
    not address the State's civil regulatory jurisdiction, which includes
    jurisdiction over gaming, zoning, and environmental regulations.
        We are concerned with the provision requiring the Secretary, within
    1 year, to verify the tribal membership and then to develop a
    determination of needs and budget to provide Federal services to the
    Lumbee group's eligible members. Under the provisions of this bill, the
    ``Lumbee Tribe'', which the Department understands includes over 40,000
    members, would be eligible for benefits, privileges and immunities that
    are similar to those possessed by other federally recognized Indian
    tribes. In our experience verifying a tribal roll is an extremely
    involved and complex undertaking that can take several years to resolve
    with much smaller tribes. While we believe there are approximately
    40,000 members, we do not currently have access to the Lumbee's tribal
    roll and thus do not have the appropriate data to estimate the time to
    verify them nor do we know how many Lumbee members may be eligible to
    participate in Federal needs based programs. Moreover, S. 660 is silent
    as to the meaning of verification for inclusion on the Lumbee group's
    tribal roll.
        In addition, section 3 may raise a constitutional 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. Under the Recommendations Clause of the United States
    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. 660, the Department feels
    that at a minimum, Congress should amend the 1956 Act to afford the
    Lumbee Indians the opportunity to petition for tribal status under the
    Department's acknowledgment regulations.
        This concludes my prepared statement. I would be happy to answer
    any questions the committee may have.
                                     ______

    Prepared Statement of Hon. Robin Hayes, U.S. Representative from North
                                    Carolina

        Chairman McCain and Vice Chairman Dorgan, I appreciate you taking
    the time to hold this hearing on the Lumbee Recognition Act, S. 660.
    Since I have been in Congress, I have worked hard to see that the
    Lumbee Tribe receives full Federal recognition.
        As you know, this past June marks the 50th anniversary of the 1956
    Lumbee Act, which acknowledged the Lumbee Tribe as an Indian tribe;
    however, Congress withheld giving the tribe full Federal recognition. I
    know Senator Dole and Senator Burr are working hard to garner strong
    support the Lumbee Recognition Act, and I appreciate their leadership
    on this issue in the Senate.
        I am a proud original cosponsor of the House companion bill, H.R.
    21, which was sponsored by my friend and colleague Congressman Mike
    McIntyre. Mike has been a tireless advocator of the Lumbee Tribe and it
    has been a pleasure working with him on this issue as well.
        The Lumbee Indian Tribe has an extensive history in North Carolina
    ranging back to 1724 on Drowning Creek, which is now referred to as the
    Lumbee River. The Lumbee Tribe has been recognized by the State of
    North Carolina since 1885. The Lumbee Tribe has over 40,000 members and
    is the largest tribe in the State of North Carolina.
        The 8th District, which I serve, is home to many of the Lumbees
    that reside in North Carolina, primarily in Hoke, Scotland, and
    Cumberland counties. I strongly believe that these important members of
    my constituency deserve Federal recognition so they are able to receive
    various Bureau of Indian Affairs and other Federal Government services
    and programs they rightly deserve.
        The heritage of the Lumbee Tribe is as strong today as when first
    recognized by North Carolina and the tribe should be proud of the rich
    and valued cultural contribution they have given to our communities. It
    is my hope that we as a Congress do what the Federal Government should
    have done decades ago and give the Lumbee Tribe the distinction of a
    federally recognized tribe.
        Thank you all again for holding this hearing. I look forward to
    continuing to work with you all on this important issue.
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