[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 
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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

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 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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