[Senate Report 111-116]
[From the U.S. Government Publishing Office]
Calendar No. 256
111th Congress Report
SENATE
2d Session 111-116
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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.
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\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.
---------------------------------------------------------------------------
\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\
---------------------------------------------------------------------------
\1\25 CFR 83.7.
---------------------------------------------------------------------------
Currently, the Lumbee are prohibited from pursuing federal
acknowledgment through this administrative process due to the
1956 Lumbee Act.\2\
---------------------------------------------------------------------------
\2\See Pub. L. 84-570, Act of June 7, 1956, 70 Stat. 254.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.