[Senate Report 112-200]
[From the U.S. Government Publishing Office]
Calendar No. 490
112th Congress Report
SENATE
2d Session 112-200
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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.
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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 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\
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\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.
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\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.
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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:
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\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\
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\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\
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\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.
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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. 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.
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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\
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\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).
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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.''\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\
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\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.
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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.\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\
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\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
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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.\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.
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\18\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.\19\ Thus, the Lumbee Indians, unlike most Indian
groups, cannot pursue the normal administrative process to
obtain Federal recognition.
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\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).
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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).
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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.
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\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).
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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\
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\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.
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\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).
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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 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).
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By fiscal year, in millions of dollars--
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2012 2013 2014 2015 2016 2012-2016
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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
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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\
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\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\
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\2\Id.
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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.