[Senate Report 111-116]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 256
111th Congress                                                   Report
                                 SENATE
 2d Session                                                     111-116

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



 
                         LUMBEE RECOGNITION ACT

                                _______
                                

                January 20, 2010.--Ordered to be printed

                                _______
                                

    Mr. Dorgan, from the Committee on Indian Affairs, submitted the 
                               following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                         [To accompany S. 1735]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 1735) to provide for the recognition of the Lumbee 
Tribe of North Carolina, and for other purposes, having 
considered the same, reports favorably thereon without 
amendment and recommends that the bill do pass.

                                Purpose

    The purpose of S. 1735 is to provide for the federal 
recognition of the Lumbee Tribe of North Carolina (as 
designated as petitioner number 65 by the Office of Federal 
Acknowledgment at the Department of the Interior), make 
applicable to the group and its members all laws that are 
generally applicable to American Indians and federally-
recognized Indian tribes, and make available all services for 
which such groups are eligible. Further, the bill authorizes 
any group of Indians in Robeson and adjoining counties in North 
Carolina, whose members are not enrolled in the Lumbee Tribe of 
North Carolina, to submit a petition to the Department of the 
Interior for acknowledgment as an Indian tribe.

                         Background and History

    The question of whether to provide federal recognition to 
the Lumbee Indians is a longstanding one. Attempts to obtain 
federal recognition for the group began in 1888. Since that 
time, there have been numerous bills introduced in Congress to 
recognize the group, but none has passed into law. There have 
also been numerous reports and studies conducted on the history 
of the Lumbee Indians. A history of these bills and some of the 
studies are better described in previous reports of the House 
of Representatives and Senate.\1\ The information in this 
report is primarily derived from previous congressional 
reports, Committee hearing records, and letters submitted by 
interested parties.
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    \1\See H. Rep. No. 1752, 73d Cong., 2d Sess.; S. Rep. No. 204, 73d 
Cong., 2d Sess.; H. Rep. No. 1654, 84th Cong., 2d. Sess.; S. Rep. No. 
84-2012, 84th Cong., 2d Sess.; S. Rep. No. 100-579, 100th Cong. 2d 
Sess.; H. Rep. No. 102-215, 102d Cong., 1st Sess.; H. Rep. No. 103-290, 
103d Cong., 1st Sess.; S. Rep. No. 108-213, 108th Cong., 1st Sess.; S. 
Rep. No. 109-334, 109th Cong., 2d Sess.; H. Rep. No. 110-164, 110th 
Cong., 1st Sess.; and H. Rep. No. 111-103, 111th Cong., 1st Sess.
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    Although the Lumbee Indians have so far failed to gain 
federal recognition, the State of North Carolina has recognized 
the group as an Indian tribe, under various names and for 
varying purposes, since 1885.\2\
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    \2\The Lumbee Indians have been recognized by the State of North 
Carolina as Croatans, Indians of Robeson County, Cherokee Indians of 
Robeson County, and Lumbee Indians. One of the primary purposes of the 
initial state recognition was to fund a segregated school system 
operated and attended exclusively by children of the Lumbee Indians.
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    Given the history of the Lumbee Indians and the inability 
of the group to utilize the Federal acknowledgment process, the 
Committee supports congressional action to extend federal 
recognition to the Lumbee Indians (as designated as petitioner 
number 65 by the Office of Federal Acknowledgment at the 
Department of the Interior). Further, the Committee supports 
clarifying that other groups of Indians in Robeson and 
adjoining counties who are not enrolled in the Lumbee Tribe are 
authorized to utilize the Federal acknowledgment process.

                  History of Recognizing Indian Tribes

    The recognition of an Indian group as a federally 
recognized Indian tribe is an important action. It is an 
affirmation by the United States of a tribe's right to self-
government and the existence of a formal government-to-
government relationship between the United States and the 
tribe. Once a tribe is federally recognized, it and its members 
have access to federal benefits and programs, and the tribal 
government incurs a formal responsibility to its members as the 
primary governing body of the community.
    Before Congress ended the practice of treaty-making with 
Indian tribes in 1871, treaties were the usual manner of 
recognizing a government-to-government relationship between the 
United States and an Indian tribe. Since the abolishment of 
treaty-making, the United States has recognized Indian tribes 
by executive order, legislation, and administrative decisions 
by the Executive Branch. Additionally, federal courts may 
clarify the status of an Indian group, though in many cases, 
the courts defer to the Bureau of Indian Affairs at the 
Department of the Interior.
    In order to provide a uniform and consistent process in 
which to recognize an Indian group, the Department of the 
Interior developed an administrative process in 1978 through 
which Indian groups could petition for acknowledgment of a 
government-to-government relationship with the United States. 
The standards for this process are set forth in Title 25 of the 
Code of Federal Regulations, Part 83, ``Procedures for 
Establishing That an American Indian Group Exists as an Indian 
Tribe.''
    The regulations establish seven mandatory criteria, each of 
which must be met before a group can achieve status as a 
federally recognized Indian tribe. The criteria are as follows:
          (1) The petitioner has been identified as an American 
        Indian entity on a substantially continuous basis since 
        1900;
          (2) A predominant portion of the petitioning group 
        comprises a distinct community and has existed as a 
        community from historical times until the present;
          (3) The petitioner has maintained political influence 
        or authority over its members as an autonomous entity 
        from historical times until the present;
          (4) The group must provide a copy of its present 
        governing documents and membership criteria;
          (5) The petitioner's membership consists of 
        individuals who descend from a historical Indian tribe 
        or tribes, which combined and functioned as a single 
        autonomous political entity;
          (6) The membership of the petitioning group is 
        composed principally of persons who are not members of 
        any acknowledged North American Indian tribe; and
          (7) Neither the petitioner nor its members are the 
        subject of congressional legislation that has expressly 
        terminated or forbidden the federal relationship.
    The regulations have remained essentially unchanged since 
1978, with the exception of revisions clarifying the evidence 
needed to support a recognition petition (1994), updated 
guidelines on the process (1997), a notice regarding BIA's 
internal processing of federal acknowledgment petitions (2000), 
and a notice to provide guidance and direction to make the 
process more streamlined and efficient (2008).\3\
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    \3\73 Fed. Reg. 30146-48 (May 23, 2008).
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    There have been numerous complaints about the process since 
1978, but the primary complaints have been about the high cost 
of gathering documentary evidence to meet the seven criteria 
and the length of time it takes the Department to review a 
petition. Out of hundreds of petitioners that have filed 
petitions under the process, as of November 4, 2009, the 
Department has resolved 45 petitions using the federal 
recognition regulations--16 have been acknowledged as tribes 
and 29 were denied acknowledgment. Since the regulations were 
first drafted in 1978, 67 petitions have been resolved--45 thru 
the regulatory process and 22 by Congress or other means.
    Due to the problems associated with the Federal 
acknowledgment process, an increasing number of tribal groups 
have asked Congress to recognize or restore their status as 
federally-recognized Indian tribes. Congress retains the 
authority to recognize tribal groups, as Congress did with the 
Loyal Shawnee Tribe of Oklahoma and the Graton Rancheria of 
California in 2000 in the Omnibus Indian Advancement Act.\4\ 
According to a report issued by the Congressional Research 
Service in September 2003, Congress has recognized, restored or 
otherwise changed the status of 28 tribal groups since the 
Federal acknowledgment process was created in 1978. Extending 
back to 1960, a total of 47 groups have had their tribal status 
clarified by congressional action.
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    \4\See Pub. L. 106-568 (2000).
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                     History of the Lumbee Indians

    Congress has deliberated on the status of the Lumbee 
Indians for more than a century. Since 1899, numerous bills 
have been introduced in Congress to recognize the Lumbee 
Indians, though none have been enacted into law.\5\
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    \5\See H.R. 4009, 56th Cong., 1st Sess.; H.R. 19036, 61st Cong., 2d 
Sess.; S. 3258, 62d Cong., 1st Sess. [House companion H.R. 20728]; H.R. 
8083, 68th Cong., 1st Sess.; S. 4595, 72d Cong., 2d Sess.; H.R. 5365, 
73d Cong., 1st Sess. [Senate companion S. 1632]; H.R. 4656, 84th Cong., 
1st Sess.; H.R. 5042, 100th Cong., 1st Sess. [Senate companion S. 
2672]; H.R. 2335, 101st Cong., 1st Sess. [Senate companion S. 901]; 
H.R. 1426, 102d Cong., 1st Sess. [Senate companion S. 1036]; H.R. 334, 
103d Cong., 1st Sess.; S. 420, 108th Cong., 1st Sess. [House companion 
H.R. 898]; S. 660, 109th Cong., 1st Sess.
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    The Lumbees have been unable to trace their lineage back to 
any tribal group that had a treaty relationship with the United 
States. The name ``Lumbee'' comes from the Indians themselves 
and is a designation from the 1950's based upon the name of the 
Lumber River, on which the Lumbee Indians reside.
    Several reports were issued by the Department of the 
Interior between 1900 and 1935 regarding the origins of the 
Lumbee Indians and their status.\6\ None of these reports 
provide conclusive evidence of Lumbee origins. In fact, the 
reports indicate that the Lumbee Indians, at various times, 
have been considered to be Croatan Indians, Siouan Indians, 
Cherokee Indians, and Cheraw Indians.
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    \6\See Indian School Supervisor Pierce Report, filed with Senate on 
April 4, 1912; Special Indian Agent McPherson report, Doc. No. 677, 53d 
Cong., 2d Sess., prepared in 1914; Report of J.R. Swanton, Smithsonian 
Institution, at request of Bureau of Indian Affairs and submitted to 
Congress in 1933; and Fred A. Baker Report on the Siouan Tribe of 
Indians of Robeson County, July 9, 1935.
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    In 1885, the Lumbees were believed to be descendants of the 
lost Raleigh colony and were designated as Croatan Indians.\7\ 
In a 1934 report to the Senate Committee on Indian Affairs, the 
Department of the Interior described the Lumbee as follows:
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    \7\Report of J.R. Swanton, Smithsonian Institution, at request of 
Bureau of Indian Affairs and submitted to Congress in 1933 and included 
within S. Rep. No. 204, 73d Cong., 2d Sess.

    The evidence available thus seems to indicate that the 
Indians of Robeson County who have been called Croatan and 
Cherokee are descended mainly from certain Siouan Tribes of 
which the most prominent were the Cheraw and Keyauwee, but they 
probably included as well remnants of the Eno and Shakori, and 
very likely some of the coast groups such as the Waccamaw and 
Cape Fear.\8\
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    \8\See S. Rep. No. 204, 73d Cong., 2d Sess.

    In 1955, the leader of the Lumbee Indians testified before 
the House of Representatives that the Indians of Robeson County 
were an ``admixture of seven different tribes of Indians, 
including the Cherokee, Tuscarora, Hatteras, Pamli and 
Croatan.''\9\
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    \9\See Statement of Reverend D.F. Lowery of Pembroke, North 
Carolina before the Subcommittee on Indian Affairs, Committee on 
Interior and Insular Affairs, United States House of Representatives, 
Hearing on H.R. 4656 Relating to the Lumbee Indians of North Carolina, 
July 22, 1955.
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    A report conducted in 1934 by J.R. Swanton, a specialist on 
southeastern Indians with the Smithsonian Institution, is 
considered to be the most reliable report on the origins of the 
Lumbee Indians. His report entitled the ``Probable Identity of 
the Croatan Indians'' concludes that the Croatan Indians [now 
called the Lumbee] are likely descendants from the Cheraw and 
other related tribes. Mr. Swanton also concluded that the 
Cheraw Indians were ``very probably of Siouan stock.'' At that 
time, the Secretary of the Interior adopted the view of Mr. 
Swanton, but opposed providing the Lumbee with any federal 
wardship or any other governmental rights or benefits.\10\
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    \10\See S. Rep. No. 204, 73d Cong., 2d Session.
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    The uncertainty of the origins of the Lumbee led past 
Administrations to oppose federal recognition of the Lumbee 
Indians as a tribe. However, as will be noted below, the 
current Administration recognizes the unique circumstances 
surrounding the Lumbee and supports congressional action to 
recognize the Lumbee Indians as a tribe.\11\
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    \11\See Legislative Hearing on H.R. 31 and H.R. 1385: Hearing 
before the House Comm. on Natural Resources, 111th Cong. (Mar. 18, 
2009) (statement of George Skibine, Deputy Assistant Secretary for 
Policy and Economic Development for Indian Affairs, U.S. Department of 
the Interior).
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    When Congress previously considered bills to recognize the 
Lumbee, the Department of the Interior consistently requested 
that any recognition of the group not be construed as 
conferring a federal wardship or any other governmental rights 
or benefits upon the Lumbee Indians. Such was the case in 1956, 
when Congress finally passed legislation designating the 
Indians of Robeson and adjoining counties in North Carolina as 
Lumbee Indians.
    Between 1913 and 1953, the State of North Carolina 
recognized the Indians of Robeson County as Cherokee Indians. 
In 1951, the County Commissioners held a referendum at which 
the choice of a name for the Indians of Robeson and adjoining 
counties was determined. The result of this referendum was 
2,169 votes for ``Lumbee Indians of North Carolina'' and 35 
votes to remain ``Cherokee Indians of Robeson County.''\12\ As 
a result of the referendum, the State of North Carolina 
modified its recognition of the Indians in 1953 and recognized 
them as Lumbee Indians.\13\
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    \12\See Statement of Reverend D.F. Lowery of Pembroke, North 
Carolina before the Subcommittee on Indian Affairs, Committee on 
Interior and Insular Affairs, United States House of Representatives, 
Hearing on H.R. 4656 Relating to the Lumbee Indians of North Carolina, 
July 22, 1955.
    \13\See North Carolina General Assembly 1953, chap. 874.
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    Thereafter, the Lumbee Indians went to Congress seeking 
passage of a bill similar to that passed by the State of North 
Carolina. A bill was introduced and passed by the House of 
Representatives, which designated the Indians of Robeson County 
as Lumbee Indians.\14\
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    \14\See H.R. 4656, 84th Cong., 2d Sess.
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    During consideration of the bill in the House, the purpose 
of the bill was thoroughly discussed between Members of 
Congress and representatives of the Lumbee during a hearing:

    Mr. Aspinall. The next question would be: What benefit 
would they [the Lumbee Indians] expect to get from this? Just 
purely the name ``Lumbee Indian Tribe'' does not appear to me 
to give too much importance to it, unless they expect to get 
some recognition later on as members of some authorized tribe, 
and then come before Congress asking for the benefits that 
naturally go to recognized tribes.
    Mr. Carlyle. No one has ever mentioned to me any interest 
in that, that they had any interest in becoming a part of a 
reservation or asking the Federal Government for anything. 
Their purpose in this legislation is to have a name that they 
think is appropriate to their group. I do not know that they 
refer to themselves as a tribe. They are citizens who belong to 
the Indian race and they were interested in having a name that 
would have, they think, some significance.\15\
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    \15\Hearing on H.R. 4656 Relating to the Lumbee Indians of North 
Carolina, Subcommittee on Indian Affairs, Committee on Natural 
Resources, House of Representatives, July 22, 1955.

    The Department of the Interior objected to the bill based 
on the lack of a treaty or other statutory obligation on the 
part of the United States to provide services to the Lumbee 
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Indians. The Secretary of the Interior stated:

    We are therefore unable to recommend that the Congress take 
any action which might ultimately result in the imposition of 
additional obligations on the Federal Government or in placing 
additional persons of Indian blood under the jurisdiction of 
this Department.
    The persons who constitute this group of Indians have been 
recognized and designated as Indians by the State legislature. 
If they are not completely satisfied with such recognition, 
they, as citizens of the State, may petition the legislature to 
amend or otherwise to change that recognition. Except for the 
possibility of becoming entitled to Federal services as 
Indians, the position of this group of Indians would not be 
enhanced by enactment of this bill.\16\
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    \16\S. Rep. No. 2012, 84th Cong., 2d Sess.

    Ultimately, Congress amended the bill as requested by the 
Department of the Interior by including the following language: 
``Nothing in this Act shall make such Indians eligible for any 
services performed by the United States for Indians because of 
their status as Indians, and none of the statutes of the United 
States which affect Indians because of their status as Indians 
shall be applicable to the Lumbee Indians.''\17\ Thus, the 
Indians of Robeson and adjoining counties were designated as 
Lumbee Indians, but not granted any eligibility for services or 
benefits under the Act of 1956.
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    \17\See Pub. L. 570, Act of June 7, 1956, 70 Stat. 254.
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    As noted above, one of the Interior Department's seven 
requirements under the existing administrative process for 
federal acknowledgment as an Indian tribe is that neither the 
group nor its members be the subject of congressional 
legislation that has expressly terminated or forbidden the 
Federal relationship. The Department of the Interior has 
interpreted the Act of 1956 as preventing the Lumbee Indians 
from utilizing the Federal acknowledgment process to become a 
federally-recognized Indian tribe. In 1989, the Solicitor for 
the Department of the Interior concluded that the Act of 1956 
forbids a government-to-government relationship with the Lumbee 
Indians.\18\ Thus, the Lumbee Indians, unlike most Indian 
groups, cannot pursue the normal administrative process to 
obtain federal recognition.
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    \18\See Memorandum to Assistant Secretary--Indian Affairs, U.S. 
Department of the Interior, Office of the Solicitor [BIA-IA-0929] 
(1989), document included in H.R. Rep. No. 102-215 (1991).
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    The Committee notes that Congress has placed one other 
Indian tribe in a position similar to the Lumbee. This was 
accomplished in 1968 when Congress enacted a law for the Tiwa 
Indians of Texas.\19\ The 1968 Act proclaimed that nothing in 
the Act made the Tiwa Indians ``eligible for any services 
performed by the United States. As a result, Congress enacted 
the Ysleta del Sur Pueblo Restoration Act of 1987, extending 
federal recognition as an Indian tribe to the Indians formerly 
known as the Tiwa of Texas.\20\
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    \19\See Public Law 90-287, 82 Stat. 93 (1968). The Committee notes 
that the two Acts are not identical, and that the Act of 1968 refers to 
a delegation of ``[r]esponsibility, if any, for the Tiwa Indians.''
    \20\See 25 U.S.C. 1300g et seq., Public Law 100-89, 101 Stat. 667 
(1987).
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    Acknowledging these ``rare circumstances,'' the Department 
of the Interior supports H.R. 31 as amended, which would 
provide congressional recognition of the Lumbee Indians.\21\ 
H.R. 31 as passed by the House of Representatives on June 3, 
2009, is identical to S. 1735 that is currently before the 
Senate.
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    \21\Legislative Hearing on H.R. 31 and H.R. 1385: Hearing before 
the House Comm. on Natural Resources, 111th Cong. (Mar. 18, 2009) 
(statement of George Skibine, Deputy Assistant Secretary for Policy and 
Economic Development for Indian Affairs, U.S. Department of the 
Interior).
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    The Committee has received letters and testimony from other 
Indian groups and Indian tribes opposing federal recognition of 
the Lumbee Indians as a tribe. The main concerns expressed are: 
(1) the impact recognition of the Lumbee Tribe may have on 
other groups of Indians in Robeson and adjoining counties, (2) 
the large membership of the Lumbee and the cost associated with 
providing federal services and benefits to the Lumbee tribe, 
and (3) the lack of a conclusive lineage to one historical 
Indian tribe.
    Regarding the first concern of the impact of S. 1735 on 
other Indian groups in North Carolina,\22\ it is not the 
Committee's intent to deem Indians who are not historically 
Lumbee Indians as such. S. 1735 will extend federal recognition 
as an Indian tribe to the Lumbee Indians and will allow other 
Indians in Robeson and adjoining counties to utilize the 
Federal acknowledgment process at the Department of the 
Interior. Thus, those Indians who are of Tuscarora descent 
should be able to pursue recognition through the administrative 
process.
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    \22\The historic Tuscorara Tribe located in North Carolina has 
expressed concern that they not be deemed Lumbee, either for purposes 
of this recognition bill or for being subject to the provisions of the 
1956 law.
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    With regard to the size of the Lumbee, it is true that the 
Lumbee represent the largest non-federally recognized tribe in 
the United States. On March 18, 2009, the Interior Department 
testified before the House Natural Resources Committee that 
there are approximately 40,000 members.\23\ The Congressional 
Budget Office (CBO) cost estimate for S. 1735 was based on a 
membership of 54,000. The Lumbee concurs that its membership 
based on the 2001 Lumbee Constitution is approximately 54,000. 
The Lumbee Indians have never had a reservation or received 
services from the Bureau of Indian Affairs or the Indian Health 
Service, though they are eligible for and do receive funds from 
other federal Indian programs because of their recognition by 
the State of North Carolina. The Lumbee receive approximately 
$11 million in federal funding for housing programs through the 
Department of Housing and Urban Development. However, the size 
of the group is not a factor under the administrative Federal 
acknowledgement process, and should not prevent justice from 
being done.
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    \23\Legislative Hearing on H.R. 31 (statement of George Skibine).
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    Finally, while there appears to be no conclusive evidence 
of a relationship between the Lumbee Indians and a single 
historic tribe, there is support for the conclusion that 
individual members of the Lumbee are Indians. The various 
reports submitted to Congress and testimony provided to the 
Committee during the last one hundred years all recognize the 
Lumbees as Indians. The 1956 law passed by Congress also 
recognizes the Lumbees as Indians. S. 1735 would extend federal 
recognition to the Lumbee Indians as an Indian tribe.
    The State of North Carolina has expressed longstanding 
recognition of the Lumbee Indians as an Indian tribe. In 1885, 
the State of North Carolina recognized the Lumbee Indians (then 
designated as Croatan Indians) as an Indian tribe and 
established a separate school system for their children, one 
that the Lumbee tribe itself ran. Enrollment in the school was 
restricted to Lumbee children who could demonstrate Lumbee 
descent four generations back, or into the 1770s. The State of 
North Carolina established the Indian Normal School in 1888 to 
train Lumbee teachers for the Tribe's school system. The Indian 
Normal School has been in continuous operation since that time 
and is today the University of North Carolina at Pembroke.
    In addition to the school system, reports and documents 
show that the Lumbee Indians have had a strong community for 
more than the past one hundred years. There are two criteria 
for membership as a Lumbee. First, a person must prove descent 
from an ancestor on the base roll, which was developed using 
school and church records and the 1900 and 1910 federal census. 
Second, a person must maintain contact with the Lumbee 
community.\24\ If a person cannot identify an ancestor, the 
person's ancestry is considered by an Elders' Review 
Committee.\25\
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    \24\Legislative Hearing on S. 660: Hearing before the Senate Comm. 
on Indian Affairs, 109th Cong. (July 12, 2006) (testimony of James 
Ernest Goins, Chairman, Lumbee Tribe of North Carolina).
    \25\Legislative Hearing on H.R. 1294 and H.R. 65: Hearing Before 
the House Comm. on Natural Resources, 110th Cong. (Apr. 18, 2007) 
(testimony of Dr. Jack Campisi, Anthropologist and Consultant for the 
Lumbee Tribe of North Carolina).
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    The Lumbees continue to maintain a strong tribal community 
and live in communities that are nearly exclusively Lumbee. In 
2006, the Committee heard expert testimony revealing that 
sixty-four percent of the Lumbee members live within fifteen 
miles of Pembroke, North Carolina, where the original Lumbee 
school system was established.\26\ Additionally, the Committee 
was informed that seventy percent of Lumbee marriages are 
between tribal members.
---------------------------------------------------------------------------
    \26\Legislative Hearing on S. 660: Hearing before the Senate Comm. 
on Indian Affairs, 109th Cong. (July 12, 2006) (testimony of Dr. Jack 
Campisi, Anthropologist and Consultant for the Lumbee Tribe of North 
Carolina).
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    The Lumbees have a longstanding history of functioning like 
an Indian tribe and being recognized as such by State and local 
authorities. Since 1885, the Lumbees have maintained an active 
political relationship with the State of North Carolina. For 
nearly 100 years, the Lumbees operated their own school system, 
established by the State. In defense of their schools, the 
Lumbee tribal leaders lobbied the State of North Carolina to 
set aside a 1913 Attorney General's opinion that held that the 
Robeson County Board of Education could overrule the tribal 
leader's decisions about enrollment in the Lumbee schools. In 
1921, the State legislature confirmed the Lumbees' authority to 
decide enrollment in its schools.\27\
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    \27\Id. (testimony of James Ernest Goins, Chairman, Lumbee Tribe of 
North Carolina).
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    Religion and culture have also remained strong in the 
Lumbee community, and often Churches operate in a semi-
government fashion. There are more than 130 all-Indian churches 
among the Lumbees in Robeson County. Historically, leadership 
of the Lumbees arose out of the Lumbee churches. Most recently, 
the church leaders directed the effort to adopt a formal tribal 
constitution. Following a church-organized constitutional 
assembly, the Lumbees adopted its constitution in a special 
referendum in 2001.\28\
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    \28\Id.
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                      Summary of Major Provisions

    S. 1735 amends Pub. L. 84-570 (hereinafter ``the Act of 
1956'') to extend federal recognition to the Lumbee Tribe of 
North Carolina and to apply to the Tribe all Federal laws of 
general application to Indians and Indian tribes. Further, S. 
1735 allows any other group of Indians in Robeson or adjoining 
counties to utilize the Federal acknowledgment process at the 
Department of the Interior.
    Section 2 of S. 1735 adds additional findings clauses to 
the preamble of the Act of 1956.
    Section 3 amends the Act of 1956 by striking the current 
Section 2 of the 1956 Lumbee Act, and inserting a new Section 2 
that will provide federal recognition to the Lumbee Tribe of 
North Carolina (as designated as petitioner number 65 by the 
Office of Federal Acknowledgment). Section 2 as amended also 
provides that any other group of Indians in Robeson and 
adjoining counties, North Carolina, which heretofore has been 
prevented from pursuing petitions pursuant to 25 C.F.R. Part 
83, will be deemed eligible to have their petitions for tribal 
acknowledgment considered.\29\
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    \29\The Committee received testimony at a hearing on July 12, 2006 
from the Bureau of Indian Affairs Office of Federal Acknowledgment 
Director, who indicated that six other groups in Robeson and adjoining 
counties in North Carolina, who have petitioned under the Federal 
Acknowledgment process, have been determined ineligible to petition 
based on the 1989 Solicitor's opinion interpreting the 1956 Lumbee Act. 
Legislative Hearing on S. 660: Hearing before the Senate Comm. on 
Indian Affairs, 109th Cong. (July 12, 2006) (testimony of Lee Fleming, 
Director, Office of Federal Acknowledgment, Department of the 
Interior). In addition, more than 80 other groups that have contacted 
the Office of Federal Acknowledgment are affected by the Lumbee Act of 
1956.
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    Section 3 of the bill adds a new Section 3 to the Act of 
1956, which provides that the Lumbee Tribe and its members will 
be eligible for the programs and services that are available to 
other federally recognized tribes. The bill does not 
automatically create an Indian reservation but defines a 
service delivery area within which the Tribe and its members 
will be eligible to receive Federal services. The new Section 
3(b) provides for verification of the tribal membership roll by 
the Secretary of the Interior and the Secretary of Health and 
Human Services for purposes of delivery of services. New 
Section 3(c) of the Act of 1956 requires the Secretary to 
verify the tribal roll within two years after date of enactment 
of the bill. The Secretary's verification is limited to 
confirming that tribal members meet the membership criteria of 
the Lumbee Constitution adopted on November 16, 2001.
    The bill will insert a new Section 4 into the Act of 1956 
to authorize the Secretary to take land into trust for the 
Lumbee Tribe. The provision also states that any application by 
the Lumbee for land into trust in Robeson County, North 
Carolina, will be treated as on-reservation for purposes of the 
fee-to-trust process. New Section 4(a) prohibits the Lumbee 
Tribe from conducting gaming activities as a matter of claimed 
inherent authority or under any Federal law or regulations.
    Finally, the bill inserts a new Section 5 into the Act of 
1956 that provides that the State of North Carolina will 
exercise civil and criminal jurisdiction over tribal members 
and any lands that may be acquired in trust for the Tribe.\30\ 
However, the bill states that nothing in the new Section 5 
shall affect the application of Section 109 of the Indian Child 
Welfare Act of 1978.
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    \30\The Committee notes that this provision is a departure from 
long-established Federal Indian policy, which provides generally for 
exclusive Federal and tribal civil and criminal jurisdiction over 
tribal members and tribal lands. However, similar jurisdictional 
provisions have been provided by Federal statute on a case-by-case 
basis for specific Indian reservations or within specific states. See 
e.g. P.L. 83-280, 67 Stat. 589, Aug. 15, 1953. The intent of this 
provision is to maintain the status quo with respect to jurisdiction, 
since the Tribe has enjoyed a long-standing relationship with the State 
of North Carolina, and is well represented among elected members of 
local governments where tribal members are geographically concentrated. 
The Committee further notes that this bill makes provision for 
retrocession of that jurisdiction from the State of North Carolina to 
the United States upon agreement between the Tribe and the State of 
North Carolina.
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                          Legislative History

    H.R. 31, the House companion to S. 1735, was introduced in 
the House of Representatives on January 6, 2009, by 
Representative Mike McIntyre (of North Carolina). The bill was 
referred to the Committee on Natural Resources in the House of 
Representatives. On March 18, 2009, the Committee on Natural 
Resources held a hearing on H.R. 31. On April 22, 2009, the 
Committee on Natural Resources met to consider the bill. 
Chairman Rahall (of West Virginia) offered an en bloc amendment 
to clarify the right of the Secretary of the Interior to take 
land into trust for the Lumbee Tribe and delete the requirement 
that the Secretaries of the Interior and Health and Human 
Services provide a budget to Congress to meet the needs of the 
Lumbee Tribe. The amendment was adopted by voice vote. The 
bill, as amended, was then ordered favorably reported to the 
House of Representatives by voice vote. On June 3, 2009, the 
House of Representatives passed H.R. 31 by a vote of 240-179.
    Senator Burr with Senator Hagan introduced S. 1735 on 
October 1, 2009. The bill was referred to the Committee on 
Indian Affairs. At a business meeting on October 22, 2009, the 
Committee ordered the bill to be reported favorably without 
amendment, by voice vote to the full Senate. During the 
business meeting, Vice Chairman John Barrasso and Senators Tom 
Coburn and Mike Crapo requested to be recorded as opposing the 
legislation.

                 Section-by-Section Analysis of S. 1735


Section 1. Short title

    Section 1 provides the short title of the bill as the 
`Lumbee Recognition Act.'

Section 2. Preamble

    Section 2 adds clauses to the Act of 1956 finding that the 
Lumbee Indians are descendants of coastal North Carolina 
Indians; that the State of North Carolina has recognized the 
Lumbees as an Indian tribe since 1885; that Congress 
acknowledged the Lumbee Indians as an Indian tribe in 1956 but 
withheld the benefits, privileges and immunities that normally 
extend to Indians because of their status as Indians; and that 
Congress now finds that the Lumbee Indians should be entitled 
to full Federal recognition of their status as an Indian tribe.

Section 3. Federal recognition

    Section 3 amends the Act of 1956 by striking the current 
Section 2, and inserting a new Section 2 that will provide 
Federal recognition to the Lumbee Tribe of North Carolina 
(designated as petitioner number 65 by the Office of Federal 
Acknowledgment).
    The new Section 2(b) of the Act of 1956 further provides 
that any other group of Indians in Robeson and adjoining 
counties, North Carolina, which heretofore has been prevented 
from pursuing petitions pursuant to 25 CFR Part 83, will be 
deemed eligible to have their petitions for tribal 
acknowledgment considered.
    Section 3 of the bill also adds a new Section 3 to the Act 
of 1956 that provides that the Lumbee Tribe and its members 
will be eligible for the programs and services that are 
available to other federally recognized tribes. The bill does 
not automatically create an Indian reservation but defines a 
service delivery area within which the Tribe and its members 
will be eligible to receive Federal services. The new Section 3 
also provides for verification of the tribal membership roll by 
the Secretary of the Interior for purposes of delivery of 
services. The Committee notes that this verification is not 
intended to authorize the Secretary to independently impose 
eligibility standards for membership. Rather it is simply 
intended to provide the Secretary, in keeping with trust 
responsibilities, with oversight to ensure that each enrolled 
member actually appears on the Tribe's membership roll with the 
supporting documentation required by the Tribe. The bill 
requires the Secretary to verify the tribal roll within two 
years after date of enactment of the bill.
    With regard to land, the bill will insert a new Section 4 
into the 1956 Lumbee Act. This new section will provide that 
land within Robeson County, North Carolina, will be eligible to 
be taken into trust by the United States and will be treated as 
on-reservation for purposes of the fee-to-trust process. The 
bill prohibits the Lumbee Tribe from conducting gaming 
activities as a matter of claimed inherent authority or under 
any Federal law or regulations.
    Notwithstanding the taking of land into trust for the 
Tribe, the bill will insert into the 1956 Lumbee Act a new 
Section 5 that provides that the State of North Carolina will 
continue to exercise civil and criminal jurisdiction over 
tribal members and any lands that may be acquired in trust for 
the Tribe.\31\ The bill states that nothing in the new Section 
5 shall affect the application of Section 109 of the Indian 
Child Welfare Act of 1978.
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    \31\The Committee notes that this provision is a departure from 
long-established Federal Indian policy, which provides generally for 
exclusive Federal and tribal civil and criminal jurisdiction over 
tribal members and tribal lands. However, similar jurisdictional 
provisions have been provided by Federal statute on a case-by-case 
basis for specific Indian reservations or within specific states. See 
e.g. P.L. 83-280, 67 Stat. 589, Aug. 15, 1953. The intent of this 
provision is to maintain the status quo with respect to jurisdiction, 
since the Tribe has enjoyed a long-standing relationship with the State 
of North Carolina, and is well represented among elected members of 
local governments where tribal members are geographically concentrated. 
The Committee further notes that this bill makes provision for 
retrocession of that jurisdiction from the State of North Carolina to 
the United States upon agreement between the Tribe and the State of 
North Carolina.
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            Committee Recommendation and Tabulation of Vote

    The Committee held a business meeting to consider S. 1735 
on October 22, 2009. The Committee then voted, by voice vote, 
to report S. 1735 favorably to the full Senate, without 
amendment. During the business meeting, Vice Chairman John 
Barrasso and Senators Tom Coburn and Mike Crapo requested to be 
recorded as opposing the legislation.

                   Cost and Budgetary Considerations

    The cost estimate for S. 1735 as calculated by the 
Congressional Budget Office, is set forth below:

                                                  October 29, 2009.
Hon. Byron L. Dorgan,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1735, the Lumbee 
Recognition Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Jeff LaFave 
(for programs of the Bureau of Indian Affairs), and Robert 
Stewart (for programs of the Indian Health Service).
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

S. 1735--Lumbee Recognition Act

    Summary: S. 1735 would provide federal recognition to the 
Lumbee Tribe of North Carolina, thereby making the tribe 
eligible to receive funding from various federal programs. CBO 
estimates that implementing this legislation would cost $786 
million over the 2010-2014 period, assuming appropriation of 
the necessary funds. Enacting S. 1735 would not affect direct 
spending or revenues.
    S. 1735 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would impose no costs on state, local, or tribal 
governments.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of S. 1735 is shown in the following table. 
The costs of this legislation fall within budget functions 450 
(community and regional development) and 550 (health).

----------------------------------------------------------------------------------------------------------------
                                                                By fiscal year, in millions of dollars--
                                                       ---------------------------------------------------------
                                                          2010     2011     2012     2013     2014    2010-2014
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Bureau of Indian Affairs:
    Estimated Authorization Level.....................       28       29       29       30       30          146
    Estimated Outlays.................................       21       28       29       30       30          138
Indian Health Service:
    Estimated Authorization Level.....................      126      129      132      135      139          661
    Estimated Outlays.................................      113      129      132      135      139          648
    Total Changes:
        Estimated Authorization Level.................      154      158      161      165      169          807
        Estimated Outlays.............................      134      157      161      165      169          786
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that S. 
1735 will be enacted early in fiscal year 2010. The bill would 
provide federal recognition to the Lumbee Tribe of North 
Carolina. Such recognition would allow the Lumbee, with 
membership of about 54,000 people, to receive benefits from 
various programs administered by the Bureau of Indian Affairs 
(BIA) and the Indian Health Service (IHS). Based on the average 
expenditures from those agencies for other Indian tribes, CBO 
estimates that implementing S. 1735 would cost $786 million 
over the 2010-2014 period, assuming appropriation of the 
necessary funds.

Bureau of Indian Affairs

    BIA provides funding to federally recognized tribes for 
various purposes, including child welfare services, adult care, 
community development, and general assistance. A portion of 
this funding (classified in the BIA budget as tribal priority 
allocations) is awarded solely on the basis of population in 
the tribe's service area. (A service area is where BIA services 
are generally provided.) Based on information from BIA, CBO 
expects that the Lumbee Tribe would receive approximately $6 
million per year in such funding, assuming that about 75 
percent of the total membership lives within the tribe's 
designated service area. In addition to the tribal priority 
allocation, the Lumbee Tribe would probably receive BIA funding 
based on other needs and characteristics of the tribe's 
members.
    In total, CBO estimates that providing BIA services would 
cost $138 million over the 2010-2014 period, assuming 
appropriation of the necessary funds. This estimate is based on 
per capita expenditures for other federally recognized tribes 
located in the eastern United States.

Indian Health Service

    S. 1735 also would make members of the Lumbee Tribe 
eligible to receive health benefits from the IHS. Based on 
information from the IHS, CBO estimates that about 56 percent 
of tribal members--or about 31,000 people--would receive 
benefits each year. CBO assumes that the cost to serve those 
individuals would be similar to funding for current IHS 
beneficiaries--about $4,000 per individual in 2009. Assuming 
appropriation of the necessary funds and adjusting for 
anticipated inflation, CBO estimates that IHS benefits for the 
Lumbee Tribe would cost $648 million over the 2010-2014 period.

Other Federal agencies

    In addition to BIA and IHS funding, certain Indian tribes 
also receive support from other federal programs within the 
Departments of Education, Housing and Urban Development, Labor, 
and Agriculture. Based on their status as a tribe recognized by 
North Carolina, the Lumbee are already eligible to receive 
funding from those departments. Thus, CBO esitmates that 
implementing S. 1735 would not add to the cost of those 
programs.
    Intergovernmental and private-sector impact: S. 1735 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would impose no costs on state, local, or 
tribal governments.
    Previous CBO estimate: On April 29, 2009, CBO transmitted a 
cost estimate for H.R. 31, the Lumbee Recognition Act, as 
ordered reported by the House Committee on Natural Resources on 
April 22, 2009. The two bills are very similar, and the CBO 
cost estimates are the same.
    Estimate prepared by: Federal Costs: Jeff LaFave--Bureau of 
Indian Affairs; Robert Stewart--Indian Health Service. Impact 
on State, Local, and Tribal Governments: Melissa Merrell. 
Impact on the Private Sector: Marin Randall.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                      Regulatory Impact Statement

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires each report accompanying a bill to evaluate the 
regulatory and paperwork impact that would be incurred in 
carrying out the bill. The Committee believes that S. 1735 will 
have a minimal impact on regulatory or paperwork requirements.

                        Executive Communications

    There have been no executive communications received by the 
Committee with regards to this legislation. However, the 
Committee notes that George Skibine, Deputy Assistant Secretary 
for Policy and Economic Development for Indian Affairs, U.S. 
Department of the Interior testified before the Committee on 
Natural Resources in the House of Representatives on March 18, 
2009 in support of H.R. 31, the House companion legislation to 
S. 1735. His testimony is reproduced below:

Testimony of George Skibine, Deputy Assistant Secretary for Policy and 
                Economic Development for Indian Affairs

    Good afternoon, Mr. Chairman, Mr. Ranking Member, and Members of 
the Committee. My name is George Skibine. I am currently the Deputy 
Assistant Secretary for Policy and Economic Development for Indian 
Affairs at the Department of the Interior. I am here today to provide 
the Administration's testimony on H.R. 31, the ``Lumbee Recognition 
Act'' and H.R. 1385, the ``Thomasina E. Jordan Indian Tribes of 
Virginia Federal Recognition Act of 2009.''
    The acknowledgment of the continued existence of another sovereign 
is one of the most solemn and important responsibilities delegated to 
the Secretary of the Interior. Federal acknowledgment enables Indian 
tribes to participate in Federal programs and establishes a government-
to-government relationship between the United States and the Indian 
tribe, and has considerable social and economic impact on the 
petitioning group, its neighbors, and Federal, state, and local 
governments. Acknowledgment carries with it certain immunities and 
privileges, including governmental activities exempt from state and 
local jurisdictions and the ability of newly acknowledged Indian tribes 
to undertake certain economic opportunities.
    We recognize that under the United States 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 the information available 
before recognition is granted. That is why we support the Department's 
administrative recognition process that requires groups to go through 
the Federal acknowledgment process because it provides a deliberative 
uniform mechanism to review and consider groups seeking Indian tribal 
status.
    To be granted Federal acknowledgment under the Department's Part 83 
regulations, petitioning groups must demonstrate that they meet each of 
seven mandatory criteria. The petitioner must:
          (1) demonstrate that it has been identified as an American 
        Indian entity on a substantially continuous basis since 1900;
          (2) show that a predominant portion of the petitioning group 
        comprises a distinct community and has existed as a community 
        from historical times until the present;
          (3) demonstrate that it has maintained political influence or 
        authority over its members as an autonomous entity from 
        historical times until the present;
          (4) provide a copy of the group's present governing document 
        including its membership criteria;
          (5) demonstrate that its membership consists of individuals 
        who descend from a historical Indian tribe or from historical 
        Indian tribes that combined and functioned as a single 
        autonomous political entity and provide a current membership 
        list;
          (6) show that the membership of the petitioning group is 
        composed principally of persons who are not members of any 
        acknowledged North American Indian tribe; and
          (7) demonstrate that neither the petitioner nor its members 
        are the subject of congressional legislation that has expressly 
        terminated or forbidden the Federal relationship.
    A criterion shall be considered met if the available evidence 
establishes a reasonable likelihood of the validity of the facts 
relating to that criterion. A petitioner must satisfy all seven of the 
mandatory criteria in order for the Department to acknowledge the 
continued tribal existence of a group as an Indian tribe under the Part 
83 regulatory process.
                h.r. 31, the ``lumbee recognition act''
    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, the Lumbee Indians 
have been deprived of the ability to seek Federal acknowledgment 
through administrative means.
    There are rare circumstances when Congress should intervene and 
recognize a tribal group, and the case of the Lumbee Indians is one 
such rare case. We support H.R. 31 with amendments as discussed below.
    H.R. 31 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 based on the group's current governing document and its current 
membership list. Not doing so could potentially expose the Federal 
government to unwarranted lawsuits and possibly delay the recognition 
process for the other groups of Indians in Robeson and adjoining 
counties not enrolled in the Lumbee Tribe.
    Under H.R. 31, 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. The current language in the bill implies that 
the Secretary has the authority to take land into trust; however, the 
bill does not expressly provide that authority. Section 4 of the bill 
should be amended to clarify that Congress intends to delegate 
authority to the Secretary to acquire land in trust for the Lumbee 
Indians.
    In addition, the bill would prohibit the Lumbee Indians from 
conducting gaming activities under any federal law, including the 
Indian Gaming Regulatory Act or its corresponding regulations.
    Under H.R. 31, 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 zoning, and environmental regulations. Additionally, 
the Secretary of the Interior is authorized to accept a transfer of 
jurisdiction over the Lumbee from the State of North Carolina, after 
consulting with the Attorney General of the United States and pursuant 
to an agreement between the Lumbee and the State of North Carolina. 
Such transfer may not take effect until two years after the effective 
date of such agreement.
    We are concerned with the provision requiring the Secretary, within 
two years, 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 
membership list 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, H.R. 
31 is silent as to the meaning of verification for inclusion on the 
Lumbee group's membership list roll.
    In addition, section 3 may raise a problem by purporting to require 
the Secretary of the Interior and the Secretary of Health and Human 
Services to submit to the Congress a written statement of a 
determination of needs and budget for the Lumbee Tribe for programs, 
services and benefits to the Lumbee Tribe. The appropriate means for 
communicating to Congress a determination of needs and budget for 
programs administered by the Department of the Interior and the 
Department of Health and Human Services is the President's Budget.
    Should Congress choose not to enact H.R. 31, the Department feels 
that at a minimum, Congress should amend the 1956 Act to afford the 
Lumbee Indians and all groups ``residing in Robeson and adjoining 
counties of North Carolina'' the opportunity to petition for Federal 
acknowledgment as an Indian tribe under the Department's regulations.
  h.r. 1385--``thomasina e. jordan indian tribes of virginia federal 
                       recognition act of 2009''
    H.R. 1385 would provide Federal recognition as Indian tribes to six 
Virginia groups: the Chickahominy Indian Tribe, the Chickahominy Indian 
Tribe--Eastern Division, the Upper Mattaponi Tribe, the Rappahannock 
Tribe, Inc., the Monacan Indian Nation, and the Nansemond Indian Tribe, 
all of which are currently petitioners in the Department's Federal 
acknowledgment process. Under 25 CFR Part 83, these six groups have 
submitted letters of intent and partial documentation to petition for 
Federal acknowledgment as Indian tribes. Some of these groups are 
awaiting technical assistance reviews under the Department's 
acknowledgment regulations. The purpose of the technical assistance 
reviews is to provide the groups with opportunities to supplement their 
petitions due to obvious deficiencies and significant omissions. To 
date, none of these petitioning groups have submitted completed 
documented petitions to demonstrate their ability to meet all seven 
mandatory criteria.
    The Department acknowledges the authority of Congress to recognize 
Indian tribes, but again, in most circumstances we prefer the 
uniformity and certainty provided by the existing administrative 
process.
    This concludes my prepared statement. I will be happy to answer any 
questions the Committee may have.

                ADDITIONAL VIEWS OF SENATOR TIM JOHNSON

    The ability to federally acknowledge, or terminate, the 
relationship that an American Indian tribe has with the United 
States is the most substantial power Congress has in the area 
of Indian Affairs. Acknowledgment carries with it great 
immunities and privileges, including the sovereign powers to 
exercise criminal and civil jurisdiction over tribal lands, to 
tax and to receive appropriations for federal programs serving 
tribes and other governments.
    In 1978, the Department of the Interior published 
regulations that established an administrative process for 
Federal acknowledgment whereby petitioning groups must meet 
seven mandatory criteria. In brief, the mandatory criteria 
require the petitioner to:
          (1) demonstrate that it has been identified as an 
        American Indian entity on a substantially continuous 
        basis since 1900;
          (2) show that a predominant portion of the 
        petitioning group comprises a distinct community and 
        has existed as a community from historical times until 
        the present;
          (3) demonstrate that it has maintained political 
        influence or authority over its members as an 
        autonomous entity from historical times until the 
        present;
          (4) provide a copy of the group's present governing 
        document including its membership criteria;
          (5) demonstrate that its membership consists of 
        individuals who descend from an historical Indian tribe 
        or from historical Indian tribes that combined and 
        functioned as a single autonomous political entity and 
        provide a current membership list;
          (6) show that the membership of the petitioning group 
        is composed principally of persons who are not members 
        of any acknowledged North American Indian tribe; and
          (7) demonstrate that neither the petitioner nor its 
        members are the subject of congressional legislation 
        that has expressly terminated or forbidden the Federal 
        relationship.\1\
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    \1\25 CFR 83.7.
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    Currently, the Lumbee are prohibited from pursuing federal 
acknowledgment through this administrative process due to the 
1956 Lumbee Act.\2\
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    \2\See Pub. L. 84-570, Act of June 7, 1956, 70 Stat. 254.
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    The Lumbee Act denied eligibility for the benefits and 
services available to Indians in accordance with the former 
Federal Indian policy of termination. The effect of the 1956 
Lumbee Act was to both acknowledge and effectively terminate 
the Lumbee at the same time.
    Accordingly, I believe that the proper path for the Lumbee 
acknowledgment is through legislation that would allow the 
Lumbee an expedited review of their petition by the Department 
of the Interior's Office of Federal Acknowledgment. The Office 
of Federal Acknowledgment, and not Congress, is the appropriate 
entity to determine whether this group's recognition is based 
on history, culture and science, rather than politics alone. I 
have, and will continue to support legislation that would allow 
the Lumbee to complete the administrative review process to 
ensure that recognition decisions are based solely on a 
technical review process.

                                                       Tim Johnson.

              ADDITIONAL VIEWS OF SENATOR TOM COBURN, M.D.

    Chairman Dorgan, Vice-Chairman Barrasso, I want to thank 
you for this opportunity to register my opposition to S. 1178, 
the ``Indian Tribes of Virginia Federal Recognition Act of 
2009,'' and to S. 1735, the ``Lumbee Recognition Act of 2009.''
    As the members of this committee know, S. 1778 will grant 
federal recognition to six tribal entities in the State of 
Virginia. The bill will also make members of the newly 
recognized tribes eligible for all federal benefits conferred 
to members of Indian tribes and allows the new tribal 
governments to place land into federal trust as part of its 
``reservation.'' The Congressional Budget Office (CBO) 
estimates that the new tribes will have 4,200 members and that 
new programs will cost taxpayers an estimated $65 million over 
five years.\1\ Furthermore, as amended, the bill will give the 
newly formed tribe jurisdiction over child custody cases 
involving Indian children.
---------------------------------------------------------------------------
    \1\Congressional Budget Office, ``HR 1385: Thomasina E. Jordan 
Indian Tribes of Virginia Federal Recognition Act of 2009,'' April 29, 
2009, http://www.cbo.gov/ftpdocs/101xx/doc10102/hr1385.pdf.
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    Similarly, S. 1735, the Lumbee Recognition Act of 2009, 
will grant federal recognition to the ``Lumbee Tribe'' of North 
Carolina, despite legitimate controversy surrounding its 
eligibility. If it approves the measure, Congress will have 
created one of the larger tribes in the nation, with an 
estimated 54,000 members. By conferring recognition, and the 
rights and benefits that come with such status, the 
Congressional Budget Office (CBO) estimates the bill will cost 
taxpayers $786 million over the next five years.\2\
---------------------------------------------------------------------------
    \2\Congressional Budget Office, ``HR 31: the Lumbee Recognition Act 
of 2009,'' April 22, 2009, http://www.cbo.gov/ftpdocs/l01xx/doc10104/
hr31.pdf.
---------------------------------------------------------------------------
    I strongly oppose both bills and will object to any 
Unanimous Consent request to pass the bills in the full Senate.
    Like many of my colleagues on this committee, I believe 
that the Congress is ill-equipped to make these kinds of 
determinations on a case-by-case basis. The list of groups 
seeking federal recognition as sovereign tribal governments is 
large and growing. Congress has neither the time, nor the 
expertise necessary to individually judge each application to 
ensure its authenticity, accuracy, or completeness. Frankly, 
Congressional recognition also lends itself to the kind of 
political corruption this committee has worked so hard to 
eradicate.
    Proponents of these bills will argue that the established 
administrative process for federal recognition through the 
Department of Interior is flawed, takes too long, and may not 
be accessible in certain, rare cases (Lumbee). They are right 
on all accounts.
    Rather than continuing its piecemeal, arbitrary legislative 
formula for conferring federal recognition, Congress must 
instead reform the administrative process that currently 
governs federal recognition. This established administrative 
process, while highly inefficient, is the one vehicle this 
Congress has to ensure that all applicants are treated fairly, 
equitably, and with prompt consideration. I believe it meets 
the first two goals fairly well, but we must demand more on the 
latter.
    To achieve this, our committee must continue its aggressive 
oversight of the Office of Federal Acknowledgement (OFA). While 
some will argue that long delays are simply a result of 
insufficient resources, I disagree.
    For one, the Department of the Interior has not used the 
resources it has been given very effectively. In the thirty 
years since the acknowledgement process was created, the 
Department has received over 330 applicants, and resolved just 
47 of the cases.\3\ While government auditors note some 
improvement, the Government Accountability Office (GAO) 
suggests that much can be accomplished by simply adopting 
better time management, more consistent communications with 
third parties, and more accurate budgeting.\4\
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    \3\http://www.bia.gov/WhoWeAre/AS-lA/OFA/index.htm.
    \4\http://www.gao.gov/new.items/d05347t.pdf.
---------------------------------------------------------------------------
    Second, Congress must consider revising the standards that 
Interior uses to review applications so that it can focus its 
time and resources on the truly serious applicants who have 
demonstrated the desire and ability to meet the rigorous 
standards necessary for approval. For example, Interior must 
have the ability to quickly dismiss (and remove from 
consideration) insufficient applications, or applications 
involving individuals or groups who have a history of filing 
such applications. Similarly, Congress should prohibit 
consideration of ``splinter groups'' and other applicants who 
are unable to cohesively work with OFA officials to meet the 
rigorous documentation requirements.
    Finally, in the rare instance that tribal groups have been 
officially barred from accessing the administrative review 
process, Congress may take steps to re-open that venue. In the 
case of the Lumbee Recognition Act, I believe Representative 
Heath Shuler's alternative proposal deserves consideration by 
this committee. Recognizing that the bureaucratic process has 
left the Lumbee with few options, but also understanding the 
inherent need for fairness in the recognition process, 
Representative Shuler has offered an expedited review 
alternative that will allow the Lumbee to access the 
established Interior process, to which they have been denied, 
while giving the agency deadlines to ensure prompt 
consideration. This will preserve the integrity of the tribal 
recognition process and allow for timely review.
    While the proposal may need modification, I think it makes 
a lot of sense, and deserves our attention.
    While I am unable to support the recognition bills 
currently before this committee, it is my hope that we will use 
this opportunity to address the larger issues surrounding the 
federal recognition process. The number of tribes eligible for 
federal recognition is finite, and with a commitment to 
oversight of Bureau of Indian Affairs, this Congress can ensure 
that meritorious applicants receive fair, equitable, and timely 
consideration.
    I thank my colleagues once again.

                                                   Tom Coburn, M.D.
                        Changes in Existing Law

    In compliance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 1735, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman). Enactment of S. 1735 would effect 
no changes in existing law except the following amendments to 
the Act of June 7, 1956:

                           Public Law 84-570


        AN ACT Relating to the Lumbee Indians of North Carolina.

    Whereas many Indians now living in Robeson and adjoining 
counties are descendants of that once large and prosperous 
tribe which occupied the lands along the Lumber River at the 
time of the earliest white settlements in that section; [and]
    Whereas at the time of their first contacts with the 
colonists, these Indians were a well-established and 
distinctive people living in European-type houses in settled 
towns and communities, owning slaves and livestock, tilling the 
soil, and practicing many of the arts and crafts of European 
civilization; [and]
    Whereas by reason of tribal legend, coupled with a 
distinctive appearance and manner of speech and the frequent 
recurrence among them of family names such as Oxendine, 
Locklear, Chavis, Drinkwater, Bullard, Lowery, Sampson, and 
others, also found on the roster of the earliest English 
settlements, these Indians may, with considerable show of 
reason, trace their origin to an admixture of colonial blood 
with certain coastal tribes of Indians; [and]
    Whereas these people are naturally and understandably proud 
of their heritage, and desirous of establishing their social 
status and preserving their racial history [Now, therefore,];
    Whereas the Lumbee Indians of Robeson and adjoining 
counties in North Carolina are descendants of coastal North 
Carolina Indian tribes, principally Cheraw, and have remained a 
distinct Indian community since the time of contact with white 
settlers;
    Whereas since 1885 the State of North Carolina has 
recognized the Lumbee Indians as an Indian tribe;
    Whereas in 1956 the Congress of the United States 
acknowledged the Lumbee Indians as an Indian tribe, but 
withheld from the Lumbee Tribe the benefits, privileges and 
immunities to which the Tribe and its members otherwise would 
have been entitled by virtue of the Tribe's status as a 
federally recognized tribe; and
    Whereas the Congress finds that the Lumbee Indians should 
now be entitled to full Federal recognition of their status as 
an Indian tribe and that the benefits, privileges and 
immunities that accompany such status should be accorded to the 
Lumbee Tribe: Now, therefore,
    Be it enacted by the Senate and House of Representatives of 
the United States of America in Congress assembled, That the 
Indians now residing in Robeson and adjoining counties of North 
Carolina, originally found by the first white settlers on the 
Lumber River in Robeson County, and claiming joint descent from 
remnants of early American colonists and certain tribes of 
Indians originally inhabiting the coastal regions of North 
Carolina, shall, from and after the ratification of this Act, 
be known and designated as Lumbee Indians of North Carolina and 
shall continue to enjoy all rights, privileges, and immunities 
enjoyed by them as citizens of the State of North Carolina and 
of the United States as they enjoyed before the enactment of 
this Act, and shall continue to be subject to all the 
obligations and duties of such citizens under the laws of the 
State of North Carolina and the United States. [Nothing in this 
Act shall make such Indians eligible for any services performed 
by the United States for Indians because of their status as 
Indians, and none of the statutes of the United States which 
affect Indians because of their status as Indians shall be 
applicable to the Lumbee Indians.]
    [SEC. 2. All laws and parts of laws in conflict with this 
Act are hereby repealed.]
    SEC. 2. (a) Federal recognition is hereby extended to the 
Lumbee Tribe of North Carolina, as designated as petitioner 
number 65 by the Office of Federal Acknowledgment. All laws and 
regulations of the United States of general application to 
Indians and Indian tribes shall apply to the Lumbee Tribe of 
North Carolina and its members.
    (b) Notwithstanding the first section, any group of Indians 
in Robeson and adjoining counties, North Carolina, whose 
members are not enrolled in the Lumbee Tribe of North Carolina 
as determined under section 3(c), may petition under part 83 of 
title 25 of the Code of Federal Regulations for acknowledgment 
of tribal existence.
    SEC. 3. (a) The Lumbee Tribe of North Carolina and its 
members shall be eligible for all services and benefits 
provided to Indians because of their status as members of a 
federally recognized tribe. For the purposes of the delivery of 
such services, those members of the Tribe residing in Robeson, 
Cumberland, Hoke, and Scotland counties in North Carolina shall 
be deemed to be residing on or near an Indian reservation.
    (b) Upon verification by the Secretary of the Interior of a 
tribal roll under subsection (c), the Secretary of the Interior 
and the Secretary of Health and Human Services shall develop, 
in consultation with the Lumbee Tribe of North Carolina, a 
determination of needs to provide the services to which members 
of the Tribe are eligible. The Secretary of the Interior and 
the Secretary of Health and Human Services shall each submit a 
written statement of such needs to Congress after the tribal 
roll is verified.
    (c) For purposes of the delivery of Federal services, the 
tribal roll in effect on the date of the enactment of this 
section shall, subject to verification by the Secretary of the 
Interior, define the service population of the Tribe. The 
Secretary's verification shall be limited to confirming 
compliance with the membership criteria set out in the Tribe's 
constitution adopted on November 16, 2001, which verification 
shall be completed not within 2 years after the date of the 
enactment of this section.
    Sec. 4. (a) The Secretary may take land into trust for the 
Lumbee Tribe pursuant to this Act. An application to take land 
located within Robeson County, North Carolina, into trust under 
this section shall be treated by the Secretary as an `on 
reservation' trust acquisition under part 151 of title 25, Code 
of Federal Regulation (or a successor regulation).
    (b) The tribe may not conduct gaming activities as a matter 
of claimed inherent authority or under the authority of any 
Federal law, including the Indian Gaming Regulatory Act (25 
U.S.C. 2701 et seq.) or under any regulations thereunder 
promulgated by the Secretary or the National Indian Gaming 
Commission.
    Sec. 5. (a) The State of North Carolina shall exercise 
jurisdiction over--
          (1) all criminal offenses that are committed on; and
          (2) all civil actions that arise on, lands located 
        within the State of North Carolina that are owned by, 
        or held in trust by the United States for, the Lumbee 
        Tribe of North Carolina, or any dependent Indian 
        community of the Lumbee Tribe of North Carolina.
    (b) The Secretary of the Interior is authorized to accept 
on behalf of the United States, after consulting with the 
Attorney General of the United States, any transfer by the 
State of North Carolina to the United States of any portion of 
the jurisdiction of the State of North Carolina described in 
subsection (a) pursuant to an agreement between the Lumbee 
Tribe and the State of North Carolina. Such transfer of 
jurisdiction may not take effect until 2 years after the 
effective date of the agreement.
    (c) The provisions of this section shall not affect the 
application of section 109 of the Indian Child Welfare Act of 
1978 (25 U.S.C. 1919).
    Sec. 6. There are authorized to be appropriated such sums 
as are necessary to carry out this Act.

                                  
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