[Senate Report 112-200]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 490
112th Congress                                                   Report
                                 SENATE
 2d Session                                                     112-200

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



 
 PROVIDING FOR THE RECOGNITION OF THE LUMBEE TRIBE OF NORTH CAROLINA, 
                         AND FOR OTHER PURPOSES

                                _______
                                

                 August 2, 2012.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                         [To accompany S. 1218]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 1218) to provide for the recognition of the Lumbee 
Tribe of North Carolina, and for other purposes, having 
considered the same, reports favorably thereon and recommends 
that the bill do pass.

                                Purpose

    The purpose of S. 1218 is to provide Federal recognition to 
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 to the Lumbee tribe all services for which Federally-
recognized tribes 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 have been enacted 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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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 for and attended exclusively by Lumbee Indian children.
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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).

                  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, the tribe 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 for 
recognizing 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 petitioning group has been identified as an 
        American Indian entity on a substantially continuous 
        basis since 1900;
          (2) A predominant portion of the group comprises a 
        distinct community and has existed as a community from 
        historical times until the present;
          (3) The group 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 (constitution and bylaws) and 
        membership criteria;
          (5) The group'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 group is composed 
        principally of persons who are not members of any other 
        acknowledged North American Indian tribe; and
          (7) Neither the group 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. Since the Federal Acknowledgment Process regulations 
were established in 1978, the Department has issued 49 
decisions under the process. Of that number, 17 petitioners 
were acknowledged as Indian tribes, and 32 petitioners were 
denied acknowledgment.
    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\ 
Since 1982, Congress has restored or recognized 9 Indian 
tribes.\5\
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    \4\See Pub. L. 106-568 (2000).
    \5\http://www.bia.gov/idc/groups/xofa/documents/text/idc013624.pdf.
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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.\6\
---------------------------------------------------------------------------
    \6\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.; H.R. 65, 110th Cong., 1st 
Sess.; S. 333, 110th Cong., 1st Sess.; H.R. 31, 111th Cong., 1st Sess.; 
S. 1735, 111th 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.\7\ The reports indicate that 
the Lumbee Indians, at various times, have been considered to 
be Croatan Indians, Siouan Indians, Cherokee Indians, and 
Cheraw Indians.
---------------------------------------------------------------------------
    \7\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.
---------------------------------------------------------------------------
    In 1885, the Lumbees were believed to be descendants of the 
lost Raleigh colony and were designated as Croatan Indians.\8\ 
In a 1934 report to the Senate Committee on Indian Affairs, the 
Department of the Interior described the Lumbee as follows:
---------------------------------------------------------------------------
    \8\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.\9\
---------------------------------------------------------------------------
    \9\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.''\10\
---------------------------------------------------------------------------
    \10\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.
---------------------------------------------------------------------------
    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. Mr. Swanson's 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.\11\
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    \11\See S. Rep. No. 204, 73d Cong., 2d Session.
---------------------------------------------------------------------------
    The complex origins of the Lumbee have led past 
Administrations to oppose Federal recognition of the Lumbee 
Indians as a tribe. However, the current Administration 
recognizes the unique circumstances surrounding the Lumbee, and 
supports congressional action to recognize the Lumbee Indians 
as a tribe.\12\
---------------------------------------------------------------------------
    \12\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).
---------------------------------------------------------------------------
    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.''\13\ 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.\14\
---------------------------------------------------------------------------
    \13\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.
    \14\See North Carolina General Assembly 1953, chap. 874.
---------------------------------------------------------------------------
    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.\15\
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    \15\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.\16\
---------------------------------------------------------------------------
    \16\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 
---------------------------------------------------------------------------
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.\17\
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    \17\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.''\18\ 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.
---------------------------------------------------------------------------
    \18\See Pub. L. 570, Act of June 7, 1956, 70 Stat. 254.
---------------------------------------------------------------------------
    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.\19\ Thus, the Lumbee Indians, unlike most Indian 
groups, cannot pursue the normal administrative process to 
obtain Federal recognition.
---------------------------------------------------------------------------
    \19\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).
---------------------------------------------------------------------------
    The Committee notes that Congress has placed one other 
Indian tribe in a position similar to the Lumbee. This occurred 
in 1968 when Congress enacted a law for the Tiwa Indians of 
Texas.\20\ 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.\21\
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    \20\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.''
    \21\See 25 U.S.C. 1300g et seq., Public Law 100-89, 101 Stat. 667 
(1987).
---------------------------------------------------------------------------
    Acknowledging these ``rare circumstances,'' the Department 
of Interior testified in support of the Lumbee Recognition Act 
(H.R. 31) during the 111th Congress.\22\ Subsequently, the 
House of Representatives passed H.R. 31 on June 3, 2009.
---------------------------------------------------------------------------
    \22\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).
---------------------------------------------------------------------------
    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. 1218 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.\23\ If a person cannot identify an ancestor, the 
person's ancestry is considered by an Elder's Review 
Committee.\24\
---------------------------------------------------------------------------
    \23\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).
    \24\Legislative Hearing on H.R. 1294 and H.R. 65: Hearing before 
the House Comm. on Natural Resources, 110th Cong. (April 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.\25\ Additionally, the Committee 
was informed that seventy percent of Lumbee marriages are 
between tribal members.
---------------------------------------------------------------------------
    \25\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).
---------------------------------------------------------------------------
    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 Lumbee have maintained an active 
political relationship with the State of North Carolina. For 
nearly 100 years, the Lumbee 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.
    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 Lumbee arose out of the Lumbee churches. Most recently, 
the church leaders directed the effort to adopt formal tribal 
consultation. Following a church-organized constitutional 
assembly, the Lumbees adopted its constitution in a special 
referendum in 2001.

                          Legislative History

    S. 1218, the Lumbee Recognition Act, was introduced on June 
16, 2011, by Senators Burr and Hagan of North Carolina. The 
bill was referred to the Senate Committee on Indian Affairs. 
Since a legislative hearing and mark-up was held on an 
identical bill, S. 1735, in the last Congress, the Senate 
Committee on Indian Affairs proceeded directly to mark-up of S. 
1218. On July 28, 2011, S. 1218 was ordered favorably reported 
to the full Senate (en bloc with S. 379 and S. 546) by voice 
vote. A companion bill, H.R. 27, was introduced in the House of 
Representatives on January 5, 2011 by Representative McIntyre.

                 Section-by-Section Analysis of S. 1218


Section 1. Short title

    This section provides that the short title of the bill is 
the ``Lumbee Recognition Act.''

Section 2. Preamble

    This section provides the findings which include that the 
Lumbee are descendants of coastal North Carolina tribes, the 
State of North Carolina recognized the Lumbee as a tribe since 
1885, and that Congress acknowledged the Lumbee as a tribe in 
the Act of 1956 (70 Stat. 254).

Section 3. Federal recognition

    This section of the bill extends Federal recognition to the 
Lumbee, making the tribe and its members eligible for all 
services and benefits provided to other Federally-recognized 
tribes. In addition, it does the following: (1) defines the 
service area for the Lumbee as Robeson, Cumberland, Hoke, and 
Scotland Counties in North Carolina; (2) provides that the 
Lumbee service population be determined by the tribe's roll in 
effect on date of enactment of this legislation; (3) directs 
the Secretary of Health and Human Services and the Secretary of 
the Interior to determine their respective agencies' needs to 
provide services to Lumbee tribal members, and to submit a 
written statement of these needs to Congress; (4) provides that 
any other tribal groups in Robeson and adjoining counties in 
North Carolina whose members are not enrolled in the Lumbee 
tribe may petition the Bureau of Indian Affairs Office of 
Federal Acknowledgement for recognition as an Indian tribe; (5) 
authorizes the Secretary of the Interior to take land into 
trust for the Lumbee tribe, but prohibits gaming activities on 
such land; (6) directs the Secretary of the Interior to treat 
any application to take land located in Robeson County into 
trust as an on-reservation trust acquisition under the Code of 
Federal Regulations; (7) declares that the State of North 
Carolina will have jurisdiction over all criminal and civil 
matters arising on the tribe's lands but allows the United 
States to accept a retrocession of such jurisdiction at the 
election of the State of North Carolina, pursuant to an 
agreement between the State and the tribe; (8) provides that 
nothing in this section will affect Section 109 of the Indian 
Child Welfare Act; and (9) authorizes appropriations of such 
sums as are necessary to carry out this Act.

            Committee Recommendation and Tabulation of Vote

    The Senate Committee on Indian Affairs addressed S. 1218 in 
a business meeting on July 28, 2011. The bill was ordered 
reported favorably without amendment to the full Senate (en 
bloc with S. 379 and S. 546) by voice vote.

                   Cost and Budgetary Considerations

    The following cost estimate, as provided by the 
Congressional Budget Office, dated October 12, 2011 was 
prepared for S. 1218:

S. 1218--Lumbee Recognition Act

    Summary: S. 1218 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 $846 
million over the 2012-2016 period, assuming appropriation of 
the necessary funds. Enacting S. 1218 would not affect direct 
spending or revenues; therefore, pay-as-you-go procedures do 
not apply.
    S. 1218 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. 1218 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--
                                                    ------------------------------------------------------------
                                                       2012      2013      2014      2015      2016    2012-2016
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Bureau of Indian Affairs:
    Estimated Authorization Level..................        33        33        34        35        35        170
    Estimated Outlays..............................        25        32        34        34        35        160
Indian Health Service:
    Estimated Authorization Level..................       132       135       139       145       151        702
    Estimated Outlays..............................       118       135       139       144       150        686
    Total Changes:
        Estimated Authorization Level..............       165       168       173       180       186        872
        Estimated Outlays..........................       143       167       173       178       185       846
----------------------------------------------------------------------------------------------------------------
Notes: Components may not sum to totals because of rounding.

    Basis of estimate: For this estimate, CBO assumes that S. 
1218 will be enacted early in fiscal year 2012. 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. 1218 would cost $846 million 
over the 2012-2016 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. In total, CBO 
estimates that providing BIA services would cost $160 million 
over the 2012-2016 period, assuming appropriation of the 
necessary funds. This estimate is based on recent per capita 
expenditures for other federally recognized tribes located in 
the eastern United States.

Indian Health Service

    S. 1218 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 55 percent 
of tribal members--or about 30,000 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 $3,500 per individual in 2011. Assuming 
appropriation of the necessary funds and adjusting for 
anticipated inflation, CBO estimates that IHS benefits for the 
Lumbee Tribe would cost $686 million over the 2012-2016 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 estimates that 
implementing S. 1218 would not increase spending from those 
programs.
    Intergovernmental and private-sector impact: S. 1218 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would impose no costs on state, local, or 
tribal governments.
    Estimate prepared by: Federal Costs: Martin von Gnechten--
Bureau of Indian Affairs, Robert Stewart--Indian Health 
Service; Impact on State, Local, and Tribal Governments: 
Melissa Merrell; Impact on the Private Sector: Amy Petz.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

               Regulatory and Paperwork Impact Statement

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires that each report accompanying a bill to 
evaluate the regulatory and paperwork impact that would be 
incurred in carrying out the bill. The Committee has concluded 
that the regulatory and paperwork impacts of S. 1218 should be 
de minimis.

                        Executive Communications

    The Committee has received no communications from the 
Executive Branch regarding S. 1218.

               ADDITIONAL VIEWS OF VICE CHAIRMAN BARRASSO

    I understand how important Federal recognition is for 
tribal groups and how difficult and challenging the 
administrative recognition process is for them. Nevertheless, 
it is my view that legislative recognition--legislation that 
deems a group or tribe to be federally recognized--is not the 
right way to decide which groups should be recognized and which 
groups should not be recognized. That is a function that can be 
best performed by the Executive Branch of the Government 
following the regulations that have been adopted for that 
purpose. Federal recognition of a group as an Indian tribe may 
have profound consequences for the group, its members, other 
Indian tribes, the general public, and the Federal Government.
    Just in terms of impact on the Federal Treasury alone, the 
Congressional Budget Office estimates that implementing S. 1218 
will cost $846 million dollars over a 5-year period, assuming 
appropriation of the necessary funds. Since most of that cost 
would be in the form of programs and services available through 
the BIA and IHS for which the Tribe and its members will become 
eligible, even if that additional money is never appropriated, 
recognition of the tribe will in and of itself place 
significant additional stress on the limited resources of both 
of these agencies, since they will not turn tribal members away 
from programs and services for which they are eligible. So 
tribal recognition is indeed a weighty decision, with real 
consequences.
    Testifying about several recognition bills at a hearing 
before this Committee during the 110th Congress, the Director 
of the Office of Federal Acknowledgement at the Department of 
the Interior stated--

    Legislation such as S. 514, S. 724, S. 1058, and H.R. 1294 
would allow these groups to bypass this [the Federal 
acknowledgement] process--allowing them to avoid the scrutiny 
to which other groups have been subjected. The Administration 
supports all groups going through the Federal acknowledgment 
process under 25 CFR Part 83.\1\
---------------------------------------------------------------------------
    \1\Testimony of R. Lee Fleming, Director, Office of Federal 
Acknowledgment, U.S. Department of the Interior, before the Committee 
on Indian Affairs, September 25, 2008.

    The Department's witness went on to point out that, in 
light of the importance and implications of recognition 
decisions, the Department adopted its Federal acknowledgment 
regulations at 25 CFR Part 83 in 1978 in recognition of ``the 
need to end ad hoc decision making and adopt uniform 
regulations for Federal acknowledgment.''\2\
---------------------------------------------------------------------------
    \2\Id.
---------------------------------------------------------------------------
    This bill represents a step away from a process that 
applies uniform, established acknowledgment criteria to the 
history of the group and in the direction of ``ad hoc'' 
recognition decisions. I do not think that Congress is in a 
good position to undertake the detailed historical, cultural, 
political and ethnographic analysis that should go into a 
recognition decision.
    In the case of the Lumbee Tribe, as the Chairman's report 
points out, we have heard that the Act of June 7, 1956 (70 
Stat. 254), has been interpreted to mean that the Lumbee Tribe 
cannot currently avail itself of the Federal recognition 
process. It is my position that, if a particular group has some 
unique historical or other barriers so that it cannot fairly 
access the administrative process, then perhaps it would be 
appropriate for Congress to consider whether those barriers 
should be removed or modified so that the group can have fair 
access to that process. However, I do not feel it is 
appropriate for Congress to simply deem a group to be a 
recognized Indian tribe.

                                                     John Barrasso.
                        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. 1218, 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. 1218 would effect 
no changes in existing law except the following amendments to 
the Act of June 7, 1956:

        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 Lumbee 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,
    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 
Lumbee 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 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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