[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
H.R. 898, TO PROVIDE FOR RECOGNITION OF THE LUMBEE TRIBE OF NORTH
CAROLINA.
=======================================================================
LEGISLATIVE HEARING
before the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
Thursday, April 1, 2004
__________
Serial No. 108-90
__________
Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
or
Committee address: http://resourcescommittee.house.gov
______
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COMMITTEE ON RESOURCES
RICHARD W. POMBO, California, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska Dale E. Kildee, Michigan
W.J. ``Billy'' Tauzin, Louisiana Eni F.H. Faleomavaega, American
Jim Saxton, New Jersey Samoa
Elton Gallegly, California Neil Abercrombie, Hawaii
John J. Duncan, Jr., Tennessee Solomon P. Ortiz, Texas
Wayne T. Gilchrest, Maryland Frank Pallone, Jr., New Jersey
Ken Calvert, California Calvin M. Dooley, California
Scott McInnis, Colorado Donna M. Christensen, Virgin
Barbara Cubin, Wyoming Islands
George Radanovich, California Ron Kind, Wisconsin
Walter B. Jones, Jr., North Jay Inslee, Washington
Carolina Grace F. Napolitano, California
Chris Cannon, Utah Tom Udall, New Mexico
John E. Peterson, Pennsylvania Mark Udall, Colorado
Jim Gibbons, Nevada, Anibal Acevedo-Vila, Puerto Rico
Vice Chairman Brad Carson, Oklahoma
Mark E. Souder, Indiana Raul M. Grijalva, Arizona
Greg Walden, Oregon Dennis A. Cardoza, California
Thomas G. Tancredo, Colorado Madeleine Z. Bordallo, Guam
J.D. Hayworth, Arizona George Miller, California
Tom Osborne, Nebraska Edward J. Markey, Massachusetts
Jeff Flake, Arizona Ruben Hinojosa, Texas
Dennis R. Rehberg, Montana Ciro D. Rodriguez, Texas
Rick Renzi, Arizona Joe Baca, California
Tom Cole, Oklahoma Betty McCollum, Minnesota
Stevan Pearce, New Mexico
Rob Bishop, Utah
Devin Nunes, California
Randy Neugebauer, Texas
Steven J. Ding, Chief of Staff
Lisa Pittman, Chief Counsel
James H. Zoia, Democrat Staff Director
Jeffrey P. Petrich, Democrat Chief Counsel
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C O N T E N T S
----------
Page
Hearing held on Thursday, April 1, 2004.......................... 1
Statement of Members:
Burr, Hon. Richard, a Representative in Congress from the
State of North Carolina.................................... 24
Prepared statement of.................................... 25
Dole, Hon. Elizabeth, a U.S. Senator from the State of North
Carolina................................................... 13
Prepared statement of.................................... 15
Faleomavaega, Hon. Eni F.H., a Delegate in Congress from
American Samoa............................................. 8
Prepared statement of.................................... 10
Jones, Hon. Walter B., a Representative in Congress from the
State of North Carolina.................................... 5
Fact sheet submitted for the record...................... 5
The Daily Reflector Insight article, ``Casino Conflicts,
Growth of Indian Gaming Facilities Escalates Fights
over Tribal Membership,'' submitted for the record..... 45
Kildee, Hon. Dale, a Representative in Congress from the
State of Michigan.......................................... 7
McIntyre, Hon. Mike, a Representative in Congress from the
State of North Carolina.................................... 16
Prepared statement of.................................... 18
Pallone, Hon. Frank, Jr., a Representative in Congress from
the State of New Jersey.................................... 12
Pombo, Hon. Richard W., a Representative in Congress from the
State of California........................................ 1
Prepared statement of.................................... 2
Rahall, Hon. Nick J., II, a Representative in Congress from
the State of West Virginia................................. 3
Prepared statement of.................................... 4
Udall. Hon. Tom, a Representative in Congress from the State
of New Mexico.............................................. 12
Statement of Witnesses:
Brooks, William J., Jr., President, North Carolina Family
Policy Council............................................. 99
Prepared statement of.................................... 100
Campisi, Dr. Jack, Researcher for the Lumbee Tribe........... 62
Prepared statement of.................................... 63
Goins, Jimmy, Chairman, Lumbee Tribe of North Carolina....... 55
Prepared statement of.................................... 56
Letter submitted for the record.......................... 61
Hicks, Michell, Principal Chief, Eastern Band of Cherokee
Indians.................................................... 33
Prepared statement of.................................... 34
Locklear, Arlinda, Attorney for the Lumbee Tribe............. 71
Prepared statement of.................................... 73
Supplemental statement submitted for the record.......... 79
Martin, Tim, Executive Director, United South and Eastern
Tribes..................................................... 95
Prepared statement of.................................... 97
Olsen, Michael, Counselor to the Assistant Secretary for
Indian Affairs, U.S. Department of the Interior............ 27
Prepared statement of.................................... 29
Response to questions submitted for the record........... 31
Additional materials supplied:
Easley, Hon. Michael F., Governor, State of North Carolina,
Letter submitted for the record............................ 110
Shapard, Bud, Research Services Officer, Chief, Branch of
Acknowledgment and Research, Bureau of Indian Affairs
(Retired), Letter submitted for the record................. 111
Taylor, Hon. Charles H., a Representative in Congress from
the State of North Carolina, Statement submitted for the
record..................................................... 7
LEGISLATIVE HEARING ON H.R. 898, TO PROVIDE FOR THE RECOGNITION OF THE
LUMBEE TRIBE OF NORTH CAROLINA, AND FOR OTHER PURPOSES.
----------
Thursday, April 1, 2004
U.S. House of Representatives
Committee on Resources
Washington, D.C.
----------
The Committee met, pursuant to notice, at 10:03 a.m., in
Room 1324, Longworth House Office Building, Hon. Richard Pombo
[Chairman of the Committee] presiding.
Present: Representatives Pombo [The Chairman], Jones,
Gibbons, Walden, Hayworth, Osborne, Cole, Bishop, Rahall,
Kildee, Faleomavaega, Abercrombie, Pallone, Inslee, Tom Udall,
and Carson.
The Chairman. The Committee on Resources will come to
order.
The Committee is meeting this morning to hear testimony on
H.R. 898, to provide for the recognition of the Lumbee Tribe of
North Carolina, and for other purposes.
The Chairman. Normally, any oral opening statements at the
hearings are limited to the Chairman and the Ranking Minority
Member, but I wanted to recognize Mr. Jones for an opening
statement, and I would also like to recognize other Members who
care to make an opening statement.
I would stress that, in the interest of time, Members might
choose to include their written statements in the hearing
record under unanimous consent. This will allow us to hear from
our witnesses sooner and help other Members keep to their
schedules.
STATEMENT OF HON. RICHARD POMBO, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF CALIFORNIA
The Chairman. The purpose of the hearing today is to
examine H.R. 898, which provides recognition to the Lumbee
Tribe of North Carolina. Deciding whether or not to extend
recognition to a tribe through an Act of Congress is a solemn
duty and must not be taken lightly. It has ramifications beyond
just the affected tribe. It should not be based on emotion or
what feels right, but rather, on factual evidence that has been
carefully collected, analyzed and judged.
Yesterday this Committee held an oversight hearing into the
Federal acknowledgment and recognition process at the Bureau of
Indian Affairs. This process is generally the preferred route
for most groups to pursue because Congress does not always have
the time and resources to efficiently evaluate the several
hundred petitions filed by Indian groups. At the same time,
Congress has plenary authority under the Constitution to
recognize a tribe. If Congress believes a tribe's petition has
merit, or if Congress, for whatever reason, decides it wants to
have a government-to-government relationship with that group,
it can formally recognize the tribe through enactment of a
bill.
Such a bill is before us today. The sponsor of the bill,
the gentleman from North Carolina, Mr. McIntyre, has been able
to secure more than 230 cosponsors. This is an impressive feat
by any standard, and it shows that the tribe has much sympathy
in the House. At the same time, the bill has passionate
opponents that we will hear from today.
I have chosen to make this a balanced hearing, with
witnesses on both sides of the issue. It is hoped that the
testimony from both sides will be based on fact and reason.
I think that the Committee hopes to learn two things from
this hearing. The first is to what extent the factual evidence
supports or fails to support the extension of recognition to
the Lumbee. Second is whether or not it's appropriate to
recognize the tribe through legislation. Several of our
colleagues on this Committee are on either side of this issue.
I want this to be a hearing that is a learning experience for
the Members and the public, and I look forward to hearing from
my colleagues and from our witnesses today.
At this time I would like to recognize the Ranking Member
of the Committee, Mr. Rahall.
[The prepared statement of Mr. Pombo follows:]
Statement of The Honorable Richard W. Pombo, Chairman,
Committee on Resources
The purpose of today's hearing is to examine H.R. 898, which
provides recognition to the Lumbee Tribe of North Carolina.
Deciding whether or not to extend recognition to a tribe through an
Act of Congress is a solemn duty and must not be taken lightly. It has
ramifications beyond just the affected tribe. It should not be based on
emotion or on what ``feels right,'' but rather on factual evidence that
has been carefully collected, analyzed, and judged.
Yesterday, this Committee held an oversight hearing into the
Federal acknowledgment and recognition process at the Bureau of Indian
Affairs. This process is generally the preferred route for most groups
to pursue because Congress does not always have the time and resources
to efficiently evaluate the several hundred petitions filed by Indian
groups.
At the same time, Congress has plenary authority under the
Constitution to recognize a tribe. If Congress believes a tribe's
petition has merit, or if Congress, for whatever reason, decides it
wants to have a government-to-government relationship with that group,
it can formally recognize the tribe through enactment of a bill.
Such a bill is before us today. The sponsor of the bill, the
Gentleman from North Carolina Mr. McIntyre, has been able to secure
more than 230 cosponsors. This is an impressive feat by any standard,
and it shows the tribe has much sympathy in the House. At the same
time, the bill has passionate opponents that we will hear from today.
I have chosen to make this a balanced hearing with witnesses on
both sides of the issue. It is to be hoped that testimony from both
sides will be based on facts and reason.
I think the Committee hopes to learn two things from this hearing.
The first is to what extent the factual evidence supports, or fails to
support, the extension of recognition to the Lumbee. Second, is whether
or not it's appropriate to recognize the tribe through legislation.
Several of our colleagues on this Committee are either side of this
issue.
I want this to be a learning experience for the Members and the
public, and I look forward to hearing from my colleagues, and from the
witnesses.
______
STATEMENT OF HON. NICK RAHALL, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF WEST VIRGINIA
Mr. Rahall. Thank you, Mr. Chairman.
You know, Mr. Chairman, I am embarrassed, really, to be
here this morning to face the good people of the Lumbee Tribe
of North Carolina yet again. When 240 of us voted for Federal
recognition during the 102nd Congress, that should have
resolved the question of the Lumbee status. When we voted again
in favor of similar legislation in the 103rd Congress, that
certainly should have meant that the United States had finally
taken a stand and done the right thing by acknowledging the
trust relationship with the Lumbee Tribe.
But it was not to be. Every time this Indian tribe gets
close to its goal of recognition by the Federal Government,
there is always one powerful person or a small, self-interest
group, ready to knock them down.
The Lumbee Tribe has been trapped inside a cruel carnival
that never ends. They have been on a roller coaster of exciting
highs, always followed by devastating lows. And just like a
roller coaster ride, the treatment of the Lumbee Tribe is
starting to make me sick.
Before this one is over, we will no doubt have those who
say the Lumbee should go through the Federal administrative
acknowledgment process. You know what that is. That is the
never ending regulatory maze, filled with distorted mirrors,
rubber rooms, and trick doors that we took testimony on
yesterday.
This, unfortunately, is nothing new to the Lumbee people.
They have endured this rejection for over 100 years. Each time
it happens, they pick themselves back up, dust themselves off,
and start putting one foot in front of the other, working
slowly and methodically climbing back up Capitol Hill to
educate the next batch of young legislative aides and their
Congressmen on the century of injustice that they have endured.
The determination and sheer stamina of the Lumbee is a
testament to their strong belief in who they are as a people.
They have endured rejection by Congress, hostility by the
Bureau of Indian Affairs, and have even been snubbed by
neighboring Indian tribes in their quest. All the Lumbee want
is the respect of being acknowledged for who they are--an
American Indian tribe.
It would probably be a lot easier on the Lumbee if they
were to disband, move to a more prosperous part of the country,
and assimilate into the non-Indian population. But this will
not happen, because the Lumbee will not abandon their ancestral
lands, nor will they deny their heritage. Instead, they will
keep coming back to this Committee, making their eloquent case,
and with shoulders squared and dignity intact, they ask once
again that the United States acknowledge their existence. We
cannot fail the Lumbee Tribe again.
I certainly commend our colleague and my dear friend, Mike
McIntyre, for his strong leadership on this issue, for picking
up the mantle for the Lumbee people. Mr. McIntyre's bill has
235 cosponsors, including 29 members of the Resources
Committee.
Mr. Chairman, the irony of inviting the Lumbee Tribe to
come before us and trust us on April Fool's Day was not lost on
them. I ask all our colleagues to read the record and learn the
history of the Lumbee Tribe. If we do not take this opportunity
to end the suffering of the Lumbee people, then we will indeed
be the fools.
Thank you, Mr. Chairman.
[Applause.]
[The prepared statement of Mr. Rahall follows:]
Statement of The Honorable Nick J. Rahall, II,
Ranking Democratic Member, Committee on Resources
Mr. Chairman. I am embarrassed to be here this morning and face the
good people of the Lumbee Tribe of North Carolina yet again.
When 240 of us voted for Federal recognition during the 102nd
Congress, that should have resolved the question of Lumbee status. When
we voted again in favor of similar legislation in the 103rd Congress,
that certainly should have meant that the United States had finally
taken a stand and done the right thing by acknowledging a trust
relationship with the Lumbee Tribe. But it was not to be.
Every time this Indian tribe gets close to its goal of recognition
by the Federal government, there is always one powerful person, or a
small, self-interested group ready to knock them down.
The Lumbee Tribe has been trapped inside a cruel carnival that
never ends. They have been on a roller coaster of exciting highs always
followed by devastating lows. And just like a roller coaster ride, the
treatment of the Lumbee Tribe is starting to make me sick.
Before this is over we will, no doubt, have those who say the
Lumbee should go through the Federal administrative acknowledgment
process. You know what that is -that is the never ending regulatory
maze filled with distorted mirrors, rubber rooms, and trick doors that
we took testimony on just yesterday.
This, unfortunately, is nothing new to the Lumbee people. They have
endured this rejection for over one hundred years. Each time it
happens, they pick themselves up, dust themselves off, and start
putting one foot in front of the other, working slowly and methodically
climbing back up Capitol Hill to educate the next batch of young
legislative aides and their Congressmen on the century of injustice
they have faced.
The determination and sheer stamina of the Lumbee is a testament to
their strong belief in who they are as a people. They have endured
rejection by Congress, hostility by the Bureau of Indian Affairs, and
have even been snubbed by neighboring Indian tribes in their quest.
All the Lumbee want is the respect of being acknowledged for who
they are--an American Indian tribe.
It would probably be a lot easier on the Lumbee if they were to
disband, move to a more prosperous part of the country, and assimilate
into the non-Indian population. But this will not happen, Mr. Chairman,
because the Lumbee will not abandon their ancestral lands nor will they
deny their heritage.
Instead, they keep coming back to this Committee, making their
eloquent case, and with shoulders squared and dignity intact, they ask
once again that the United States acknowledge their existence. We
cannot fail the Lumbee Tribe again.
I want to commend our colleague, Mr. McIntyre for picking up the
mantle for the Lumbee people. Mr. McIntyre's bill has 235 cosponsors
including 29 Members of the Resources Committee.
Mr. Chairman, the irony of inviting the Lumbee Tribe to come before
us and trust us on April Fools Day was not lost on them. I ask all our
colleagues to read the record and learn the history of the Lumbee
Tribe. If we do not take this opportunity to end the suffering of the
Lumbee people, then we will indeed be the fools.
______
The Chairman. Thank you.
I would like at this time to recognize my colleague, Mr.
Jones.
Mr. Jones. Mr. Chairman, I would first like to ask
unanimous consent, since Mr. Rahall made reference to the
history of the Lumbee Indians, to have a fact sheet handed out
to the members of the Committee.
The Chairman. Without objection, so ordered.
[The fact sheet submitted for the record by Mr. Jones
follows:]
HISTORIC TRIBES AND THE LANGUAGES SPOKEN
Croatans spoke Algonquian
Cherokees speak Iroquoian
Cheraws spoke Siouan
WHAT IS SIOUAN?
Siouan is the generic language category for many Native American
languages, including:
Osage
Assiniboine
Dakota
Lakota
Catawba
Hidatsa
Crow
Mandan
Omaha-Ponca
Biloxi
Quapaw
Hocak
HISTORY OF LUMBEE IN SEEKING FEDERAL LEGISLATION AS DIFFERENT TRIBES
AND LINGUISTIC GROUPS
1899 Seek Services as Croatan Tribe (Algonquin)
1910 Seek Name Change to ``Cherokee Indians'' (Iroquoian)
1911 Seek Funding as ``Indians of Robeson County''
1913 Seek Name Change to ``Cherokee Indians of Robeson County''
1924 Seek Recognition as ``Cherokee Indians of Robeson County''
1933 Seek Recognition as ``Cheraw Indians'' (Siouan)
1934 Seek Recognition as ``Siouan Indians of Lumber River''
1955 Seek Name Change to ``Lumbee Indians of North Carolina''
1956 ``Lumbee Indians of North Carolina'' Act -- No Association
with Historical Tribe
1988 Seek Recognition as ``Lumbee Tribe of North Carolina''
1989 Seek Recognition as ``Lumbee Tribe of North Carolina''
1991 Seek Recognition as ``Lumbee Tribe of North Carolina''
1993 Seek Recognition as ``Lumbee Tribe of North Carolina''
1995 Seek Recognition as ``Lumbee Tribe of North Carolina''
2004 Seek Recognition as ``Lumbee Tribe of North Carolina''
______
STATEMENT OF HON. WALTER B. JONES, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NORTH CAROLINA
Mr. Jones. Mr. Chairman, I am opposed to this legislation,
H.R. 898. I want to give three reasons, and then I would like
to read into the record a statement from Congressman Charles
Taylor.
First of all, as Mr. Rahall said, there is a process, and I
believe that the process is extremely important because the
process helps to identify and clarify the identity of a tribe.
We have over 237 groups right now that are waiting to be
approved by the Bureau of Indian Affairs. The point is, whether
it's the Lumbees or any other tribe, quite frankly, if we start
passing private bills to recognize them, then I think we are
creating a problem that is going to be uncontrollable, because
how can you say yes to one and no to 237?
There is another issue that will be discussed later, and
that is the concern of many people in North Carolina about the
possibility of having casinos established and set up in and
around I-95. That is an issue that will be discussed, I am
sure, by one or two of the panelists that will come before us
later.
Let me now read a brief letter for the record, a statement
from Congressman Charles Taylor. As you know, Congressman
Charles Taylor represents the 11th Congressional District. He
is holding a hearing as a chairman, like you, Mr. Chairman,
today in another committee. This is a very brief statement and
I would like to read the letter and then I will conclude my
remarks.
``Chairman Pombo: I sincerely appreciate the opportunity to
submit a statement to the committee today on H.R. 898. I want
to extend a welcome of my own to Chief Hicks of the Eastern
Band of Cherokee Indians, and Chairman Jimmy Goins of the
Lumbees, who have come to Washington today to testify and to
express their views on this legislation. These are
distinguished North Carolinians and I appreciate their presence
and the input they provide.''
``Mr. Chairman, since I served in the Legislature of the
State of North Carolina, I have dealt with issues related to
acknowledgment of the Lumbees as an Indian tribe. Based on many
years of experience, I oppose H.R. 898, legislation that would
circumvent the established Federal acknowledgment process at
the Department of Interior and congressionally acknowledge the
Lumbees as an Indian tribe. I strongly believe that the only
equitable way to deal with this issue is to pass legislation
that would give the Lumbees a fair shot at Federal
acknowledgment through Interior's Office of Federal
Acknowledgment.''
``That is why I have introduced H.R. 1408, legislation that
would clear the way for the Lumbee to do just that. Directly
recognizing the Lumbee through congressional action would
severely undercut the government-to-government relationship we
have with existing federally recognized tribes.''
``The issue of Federal acknowledgment of groups seeking to
be recognized as Indian tribes often gets caught up in emotion
and politics. I believe that Federal acknowledgment decisions
should be based upon the merit of each group's claim of tribal
identity and nothing else. However well-intended we may be,
Congress does not have the tools to make such merit-based
determinations of tribal identity. If the administrative
process needs fixing, let's fix it, but let's not throw the
baby out with the bath water.''
``I am concerned that there exists too many serious
questions about the tribal identity of the Lumbee, including
their ties to the Cheraw Tribe and the generalization Indian
Consensus List from which their current membership descends.''
``For Congress to directly acknowledge them, as Interior
Appropriations Chairman, I am also concerned about the enormous
cost of this legislation that would harm the level of program
dollars to existing Federal recognized tribes.''
``Mr. Chairman, let's do what's fair to everyone, including
federally recognized tribes and other groups seeking Federal
recognition and take the politics out of this decision.''
With that, Mr. Chairman, I would like to submit this on
behalf of Congressman Charles Taylor, and I will yield back the
balance of my time.
The Chairman. Without objection, it will be included in the
record.
[The prepared statement of Hon. Charles Taylor follows:]
Statement submitted for the record by The Honorable Charles Taylor, a
Representative in Congress from the State of North Carolina
Chairman Pombo, I sincerely appreciate the opportunity to submit a
statement to the Committee today on H.R. 898.
I want to extend a welcome of my own to Chief Hicks of the Eastern
Band of Cherokee Indians and Chairman Jimmy Goins of the Lumbee who
have come to Washington today to testify and to express their views on
this legislation. These are distinguished North Carolinians, and I
appreciate their presence and the input they provide.
Mr. Chairman, since I served in the Legislature of the State of
North Carolina, I have dealt with issues related to acknowledgment of
the Lumbee as an Indian tribe. Based on many years of experience, I
oppose H.R. 898, legislation that would circumvent the established
federal acknowledgment process at the Department of the Interior and
Congressionally acknowledge the Lumbee as an Indian tribe. I strongly
believe that the only equitable way to deal with this issue is to pass
legislation that would give the Lumbee a fair shot at federal
acknowledgment through Interior's Office of Federal Acknowledgment.
That is why I have introduced H.R. 1408, legislation that would clear
the way for the Lumbee to do just that. Directly recognizing the Lumbee
through Congressional action would severely undercut the government-to-
government relationship we have with existing federally recognized
tribes.
The issue of federal acknowledgment of groups seeking to be
recognized as Indian tribes often gets caught up in emotion and
politics. I believe that federal acknowledgment decisions should be
based upon the merit of each group's claim of tribal identity, and
nothing else. However well-intentioned we may be, Congress does not
have the tools to make such merit-based determinations of tribal
identity. If the administrative process needs fixing, let's fix it, but
let's not throw the baby out with the bathwater.
I am concerned that there exist too many serious questions about
the tribal identity of the Lumbee--including their ties to the Cheraw
Tribe and the generalized ``Indian'' census lists from which their
current membership descends--for Congress to directly acknowledge them.
As Interior Appropriations Chairman, I am also concerned about the
enormous cost of this legislation that would harm the level of program
dollars to existing federally recognized tribes.
Mr. Chairman, let's do what's fair to everyone, including federally
recognized tribes and other groups seeking federal recognition, and
take the politics out of these decisions.
______
The Chairman. Any further comments? Mr. Kildee.
STATEMENT OF HON. DALE KILDEE, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF MICHIGAN
Mr. Kildee. Thank you, Mr. Chairman.
First I want to thank you for holding this hearing today.
This issue has been around for a very long time, longer than my
28 years here in Congress.
I first want to welcome my friends who have traveled from
North Carolina to be with us here today. I want to welcome
Chairman Goins and my Lumbee friends, and Chief Hicks and the
tribal members from the Eastern Band of Cherokee, whom I hold
in the highest regard.
Chief Hicks, I want to once again congratulate you on the
job you did to get the Ravensport tract back into the hands of
the Eastern Band. That was a truly bipartisan effort on the
part of this Congress.
In my 40 years now of involvement in Indian affairs, I have
come to learn that few issues generate such passion and
convictions that Federal recognition does. I am sure today will
be no different.
Mr. Chairman, about 10 years ago I introduced legislation
to restore the Federal recognition of the sovereignty of three
tribes in Michigan. One of the most joyful days I experienced
was over at the White House in the Oval Office when the
President signed that bill. It wasn't granting sovereignty to
those three tribes; it was recognizing their retained
sovereignty. That's what we are asked to do today.
Today things are more difficult. The question of gaming has
come in, and other political considerations have come in. But I
started working on this bill when Charlie Rose represented the
Lumbees in the Congress of the United States. Now I'm working
with Mike McIntyre, who has worked assiduously to gather about
240 signatures on this bill.
What we're trying to do today is bring fairness to a group
of Indian people who are seeking Federal recognition for their
people. I hope that today's hearing is a meaningful step in
accomplishing that very important goal.
I look forward to hearing the testimony, Mr. Chairman.
The Chairman. Any further comments?
Mr. Faleomavaega.
STATEMENT OF HON. ENI F.H. FALEOMAVAEGA, A DELEGATE IN CONGRESS
FROM AMERICAN SAMOA
Mr. Faleomavaega. Mr. Chairman, first I would like to
associate myself with our Senior Ranking Member for his
comments and his statement this morning concerning this
legislation that is now before us.
As much as I have the highest respect and regard for my
good friend from North Carolina--and we don't often disagree on
issues before our Committee--but I have to respectfully
disagree with the gentleman's view on this, and I hope to
elaborate on that very issue.
Mr. Chairman, I would also like to offer my commendation to
you and our Ranking Member for your initiative and your
leadership in accepting our good friend from North Carolina's
efforts. We hold this hearing concerning this very important
legislation now before our committee, and I would be remiss if
I did not offer my personal welcome to the gentlelady and the
Senator from North Carolina who is with us this morning,
Senator Dole, and especially my good friend, Mr. McIntyre as
the chief sponsor of this legislation.
Mr. Chairman, from the outset I believe it's important to
note that the policy of the United States has been terribly
inconsistent with regard to the original inhabitants of this
great Nation. Our first policy was to do battle with them.
General Philip Henry Sheridan epitomized the prevailing opinion
at the time in 1869 when he said, ``The only good Indians I
ever saw were dead.''
Our next policy was that of assimilation. During this
period, the United States attempted to make Indians a part of
the American mainstream, forcing the Indians to relinquish ties
to their culture and their ways of life. Since the 1950s, this
country has adopted a policy of termination, then
reinstatement, and the current policy of administrative
recognition.
Throughout this entire period, the Lumbee have sought
Federal recognition. Since at least the mid-18th century, the
Lumbee Tribe has resided in North Carolina. The Lumbee Tribe is
the largest tribe in North Carolina, the largest tribe east of
the Mississippi River, and the ninth largest tribe in our
Nation.
In response to congressional requests, the Department of
Interior has repeatedly investigated the Lumbee history--in
1912, 1914, and 1933--and concluded that the Lumbees are, in
fact, Indians. In addition, in previous Congresses, we have
heard testimony from ethnologists who have testified that the
Lumbee Tribe descends primarily from the Cheraw Tribe, a tribe
whose ancestors encountered Europeans and dates back to 1524.
Mr. Chairman, the State of North Carolina recognized the
Lumbees as a tribe since 1885, at which time a separate
educational system was created for the Lumbee children. Three
years later, the Lumbees continued their fight and petitioned
Congress for Federal recognition. Since 1888, Mr. Chairman,
unsuccessful in their first attempt, the Lumbees continued
their efforts in Congress, petitioning 14 separate times for
the following 97 years. Here we sit today for the 15th time. I
believe we can all agree that this has gone on long enough.
My good friend and former colleague of our Committee, Mr.
Charlie Rose of North Carolina, who at the time represented the
area in which most Lumbees live, introduced H.R. 1426 in the
102nd Congress, which passed the House on September 26, 1991. I
was an original cosponsor of 1426. It saddens me that we are
still fighting to provide the Lumbee Tribe with Federal
recognition.
Some of my colleagues have argued that Congress is not the
proper venue for the Lumbee Tribe to seek recognition, and that
the Bureau of Indian Affairs administrative process, created in
1978, is the proper mechanism by which the Lumbees should
petition for recognition. On the contrary, Mr. Chairman, Lumbee
Indians have historically been recognized by treaties and by
Congress, and only recently by administrative process.
Furthermore, the Lumbee Act of 1956 created a unique
circumstance--and this is really what kills me, Mr. Chairman.
The Congress passed an Act in 1956 to recognize the Lumbee
Indians as a federally recognized tribe, but with a proviso
saying, ``Oh, but you cannot receive Federal entitlements.''
But they were fully recognized as an Indian tribe. The only
difference here, they were not allowed to be given Federal
allotments as to other tribes simply because the excuse was we
didn't have enough funds to provide for this tribe.
Congressional recognition in such unusual circumstances is
not unprecedented, Mr. Chairman. According to the 2001 GAO
report, there are currently 562 federally recognized tribes. Of
those, 92 percent of them were recognized in an effort to
recognize tribal governments in the 1930s, where part of a
group of Alaska tribes was determined to have existing
government-to-government relations with the United States.
Mr. Chairman, 47 tribes have been individually recognized
since 1960, 16 by Congress and 31 by the Department of
Interior. Of the 31 recognized by the Department of Interior,
only 14 have been recognized through the BIA regulatory
process, the recognition process that was created in 1978. BIA
currently has 10 petitions ready to be adjudicated, six of
which have been waiting for the last 5 years. Clearly, the BIA
administrative process is not only underfunded but undermanned,
resulting in cumbersome and unreasonably long waits.
Mr. Chairman, the Supreme Court decision in U.S. versus
Sandervol ruled that the only practical limitations on
Congress' ability to recognize a tribe are that a group has
some ancestors who lived in what is now the United States
before discovery by Europeans, and the group can be a people
distinct from others. The BIA is clearly not the only way
tribes can receive Federal recognition, Mr. Chairman.
I want to emphasize this again, Mr. Chairman. Enough is
enough. This tribe has been petitioning this body, this
Committee, and this House has twice passed legislation to give
this tribe recognition. Today in this Committee we have the
opportunity to correct this terrible mistake made since the
1956 Lumbee Act. In recognizing the Lumbees as a tribe, we will
acknowledge the tribe as a sovereign entity, establish a
government-to-government relationship, and enable the Lumbee to
be eligible for Federal Indian programs. And why shouldn't they
be? They should be given that.
Mr. Chairman, these people are not asking for handouts.
They are not begging for anything. Only to want fairness and
equity in this process. I urge my colleagues to pass this
legislation.
I thank you, Mr. Chairman.
[The prepared statement of Mr. Faleomavaega follows:]
Statement of The Honorable Eni F.H. Faleomavaega, a Delegate in
Congress from American Samoa
Mr. Chairman, Ranking Member:
I want to thank you for allowing me to testify today in support of
H.R. 898, a bill to provide for the recognition of the Lumbee tribe of
North Carolina.
From the outset, I believe it is important to note that the policy
of the United States has been terribly inconsistent with regard to the
original inhabitants of this land. Our first policy was to do battle
with them. Gen. Phillip Henry Sheridan epitomized the prevailing
opinion at the time in 1869 when he said: ``The only good Indians I
ever saw were dead.''
Our next policy was that of assimilation. During this period the
United States attempted to make Indians part of mainstream America,
forcing the Indians to relinquish ties to their cultures and ways of
life. Since the 1950's, this country has adopted the policies of
termination, then reinstatement and the current policy of
administrative recognition. Throughout this entire period, the Lumbee
have sought federal recognition.
Since at least the mid-eighteenth century, the Lumbee tribe has
resided in North Carolina. The Lumbee tribe is the largest in North
Carolina, the largest tribe east of the Mississippi River and the ninth
largest tribe in the nation.
In response to Congressional requests, the Department of Interior
has repeatedly investigated the Lumbee history and in 1912, 1914, and
1933 concluded that the Lumbees are, in fact, Indians. In addition, in
previous Congresses we have heard testimony from ethnologists who have
testified that the Lumbee tribe descends primarily from the Cheraw
Tribe, a tribe whose encounters with Europeans dates back to 1524.
The State of North Carolina recognized the Lumbee as a tribe in
1885, at which time a separate education system was created for the
Lumbee children. Three years later, the Lumbees continued their fight
and petitioned Congress for federal recognition in 1888. Unsuccessful
in their first attempt, the Lumbee continued their efforts in Congress,
petitioning fourteen separate times over the following 97 years. Here
we sit today for the fifteenth time and I believe we can all agree that
this has gone on long enough.
My good friend and colleague, Mr. Rose of North Carolina, who at
the time represented the area in which most Lumbee live, introduced
H.R. 1426 in the 102nd Congress which passed the House on September 26,
1991. I was an original cosponsor of H.R. 1426 and it saddens me that
we are still fighting to provide the Lumbee Tribe with federal
recognition.
Some of my colleagues have argued that Congress is not the proper
venue for the Lumbee tribe to seek recognition and that the BIA
administrative process created in 1978 is the proper mechanism by which
the Lumbee should petition for recognition. On the contrary, Mr.
Chairman, Indian tribes have historically been recognized by treaties
and by Congress, and only recently, by administrative process.
Furthermore, the Lumbee Act of 1956 created a unique circumstance
resulting in the Lumbee now being prevented from pursuing the
administrative process established 32 years later. I believe Congress
should bear the responsibility of righting this wrong and should do so
in a timely manner by supporting Congressionally enacted recognition.
Congressional recognition in such unusual circumstances is not
unprecedented. According to a 2001 GAO report, there are currently 562
federally recognized tribes. Of those, 92 percent of them were
recognized in an effort to reorganize tribal governments in the 1930s,
or were part of a group of Alaska tribes determined to have existing
government to government relations with the United States.
Forty-seven tribes have been individually recognized since 1960, 16
by Congress and 31 by the Department of Interior. Of the 31 recognized
by the Department of Interior, only 14 have been recognized through the
BIA regulatory process created in 1978. BIA currently has 10 petitions
ready to be adjudicated, six of which have been waiting at least 5
years. Clearly, the BIA administrative process is under-funded and
under-manned, resulting in a cumbersome and unreasonably long waits.
In addition, in U.S. v. Sandoval, 23 U.S. 28 (1913),the Supreme
Court ruled that the only practical limitations on Congress' ability to
recognize a tribe are that (1) the group have some ancestors who lived
in what is now the United States before discovery by Europeans and (2)
the group be a ``people distinct from others.'' The BIA is clearly not
the only way tribes can receive federal recognition.
In the Lumbee Act of 1956, the Lumbee were recognized as Indian and
simultaneously were prohibited from receiving any benefits or services
from the federal government. In a memorandum from the Associate
Solicitor dated October 23, 1989, it was determined that the Lumbee Act
of 1956 ``is legislation terminating or forbidding the Federal
relationship'' and, as a result, BIA is precluded from considering the
Lumbee application for recognition. As the BIA administrative process
has not been available to the Lumbee, Congressional recognition is not
only a reasonable way, but also the most just way to expeditiously give
to the Lumbee tribe the recognition they deserve.
Today, in this committee, we have the opportunity to correct the
terrible mistake made in the 1956 Lumbee Act. In recognizing the Lumbee
as a tribe we will acknowledge the tribe as a sovereign entity,
establish a government to government relationship, and enable the
Lumbee to be eligible for federal Indian programs which will provide
needed funding in areas such as education, health, and housing.
Ultimately our goal has been and should continue to be to support the
self determination and self reliance of all native peoples in the
United States, and the Lumbee have waited long enough.
I urge my colleagues to support this bill and again I thank the
Chairman and Ranking Member for holding a hearing on H.R. 898, a bill
to provide for the recognition of the Lumbee tribe of North Carolina.
______
The Chairman. Any further comments?
Mr. Pallone.
STATEMENT OF HON. FRANK PALLONE, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NEW JERSEY
Mr. Pallone. Thank you, Mr. Chairman. I will be brief.
In fact, I voted for the similar legislation I guess when
it passed back about 10 years ago or so. But I did not
cosponsor Congressman McIntyre's bill, only because I did want
to see, to have a hearing and basically hear from both sides
about this issue. So I don't have any preconceived notion about
whether we should pass the bill or not. I would really like to
hear from all the testimony today.
I also wanted to mention that I think the issue does relate
directly to the hearing that we had yesterday in terms of the
Federal recognition process. Normally, I would expect tribes to
go through the BIA process, and as I mentioned yesterday, Mr.
Chairman, I think we have to do everything to make that process
fairer, particularly by providing funding to the tribes when
they go through the process.
However, I think we also have to recognize that there are
times when that process has to be bypassed and legislation has
to be used, primarily because of the actions of the Federal
Government. I remember when some of the Virginia tribes
testified last year that the Federal Government and the States
have purposely tried to make it difficult for them to prove
their continued existence, so sometimes we don't have clean
hands, so we can't expect tribes to meet the BIA test because
of actions that have been taken by the Federal or State
government.
I am particularly concerned today because of this
legislation that was mentioned by the previous speaker, Mr.
Faleomavaega, that makes it impossible for the Lumbees to go
through the BIA process. I understand there is other
legislation that would remove or repeal that earlier
legislation that was passed, and then make it possible for them
to go through the BIA process once again.
But I would like to know from the Lumbee representatives
today how they feel about that route. In other words, whether
or not they feel that, if the previous legislation was repealed
and they could go through the BIA process, what that would
mean, whether that would be fair, given that it's so many years
now that they haven't been able to.
I think this is a difficult question, but I think we have
to acknowledge that sometimes the Federal Government makes a
mistake and does things wrongly. If the tribe can show that
they have basically been denied the possibility of recognition
because of Federal actions, then that is certainly something
that should be considered in our decision on whether to move
this legislation.
Thank you, Mr. Chairman.
The Chairman. Mr. Udall.
STATEMENT OF HON. TOM UDALL, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF NEW MEXICO
Mr. Tom Udall. Thank you, Mr. Chairman. I see we have a
full hall, so I am also going to be very brief.
I think my colleagues up here on the Democratic side have
clearly made a very strong case for congressional recognition,
and I look forward to hearing today from our colleagues,
Congressman McIntyre and Congressman Burr, and also Senator
Dole. So thank you, Mr. Chairman.
The Chairman. Any further comments. Seeing none, I would
like to welcome our first panel, the sponsor of the
legislation, Congressman McIntyre, and also we have a guest
from the other body, Senator Elizabeth Dole of North Carolina,
if you could join us at the witness table.
Mr. Rahall. Mr. Chairman, while they are taking their
seats, may I take a quick moment to commend the gentlelady from
North Carolina, Senator Dole, for her efforts on behalf of our
coal miners.
We had a hearing at the beginning of this week, and the
Commission you established while Secretary of Labor under
President Reagan was mentioned quite often. They appreciate
very much the Federal commitment you have continued to help
shore up the solvency of their Combined Benefit Fund, which
delivers health and retirement benefits to their retirees. So
on their behalf, I say thank you.
I would like to also mention another former colleague of
ours, Mr. Chairman, who is in the audience, a former member of
this Committee, Dawson Mathis from Georgia. He represented
south Georgia between 1971 and 1981, and I'm sure he voted for
the Lumbee recognition bills during his tenure as well. Thank
you.
The Chairman. I would like at this time to remind all of
today's witnesses that, under committee rules, oral testimony
is limited to 5 minutes, but your entire written testimony will
appear in the record as submitted.
Senator Dole, I understand that you are under a time
constraint and that you and Congressman McIntyre have worked
this out, so I guess we're going to begin with you.
Welcome to the Committee.
STATEMENT OF HON. ELIZABETH DOLE, A U.S. SENATOR FROM THE STATE
OF NORTH CAROLINA
Senator Dole. Thank you very much, Mr. Chairman, for
holding this important hearing today. I sincerely want to thank
both you and the Committee for allowing me to testify.
There are many here in this room who are champions for the
Lumbee. Ranking Member Congressman Rahall, you are among them,
and I thank you. Congressman Faleomavaega, you testified on the
Senate side and it's good to be with you again, and Congressman
Kildee. Also, I want to recognize the other two members of this
panel, of course, my good friend, Congressman McIntyre, who
came over to the Senate and testified with me earlier, and has
worked tirelessly on Lumbee recognition for many years. And
Congressman Burr, who will testify later, shows a real
commitment to serving all the people of North Carolina.
Most importantly, I want to recognize and publicly thank
the members of the Lumbee Tribe who traveled here from North
Carolina. Once again, I am in awe of their steadfast
determination and commitment to recognition. And it's
contagious. It is my privilege to join them in their passionate
pursuit for fair acknowledgment from the Federal Government.
A terrible injustice has been done to the Lumbee Indians.
Full Federal recognition for this tribe has been unfairly
denied for over a century. Given that this was the subject of
the first legislation that I submitted as a Senator, I am
committed to achieving the goal of recognition. I have great
respect for the Lumbee people, a tribe of great pride even
after decades of disappointments. Spending time with them on so
many different occasions has invigorated me in my effort to end
this injustice.
Formally recognized by the State of North Carolina in 1885,
the tribe began a quest for Federal recognition just 3 years
later. Mr. Chairman, this means they have been looking for
Federal recognition for over 116 years--full recognition. Time
and time again, in 1913, 1914, and 1933, studies at the U.S.
Department of Interior have determined that the Lumbee are,
indeed, an Indian tribe, descended from the historic Cheraw
Indians.
After years of stalled legislation, finally in 1956
Congress passed the Lumbee bill, which recognized the tribe.
Unfortunately, there was a caveat, as we have heard, and the
tribe belatedly learned they were denied the benefits and
privileges that every other federally recognized tribe enjoys.
Mr. Chairman, that caveat is what brings us here today.
This discrimination must end. The Lumbees deserve full
recognition for their tribe, not a partial nod that ignores the
history and the efforts of so many ancestors.
I introduced S. 420 as my first bill in the U.S. Senate,
with one word in mind: fairness. Final passage of this
legislation will allow the tribe to receive long overdue
assistance in areas like education, health care, and economic
development funding.
I know there are those who have argued, and will do so
again today, that the Lumbees should go through the BIA for
Federal recognition, but that process is reserved for tribes
whose legitimacy must be established. There is no need for that
in the case of the Lumbee. Time and again, the legitimacy of
the tribe has been established.
Yesterday this Committee heard testimony about the BIA
recognition process, a process which appears to be
fundamentally flawed. Both this Committee and your counterparts
in the Senate have been seeking a better way. To force the
Lumbee into that system would not only be unfair, but, in my
view, unconscionable.
According to a 2001 GAO report, it can take up to 15 years
to resolve completed petitions for recognition--15 years. The
Lumbees have already waited far too long. It's wrong to impose
yet another lengthy delay on this tribe. It's been 116 years,
Mr. Chairman. Let's not make them wait another 15.
Let us do the fair thing, the right thing, to resolve this
injustice. The Lumbee Tribe, with 53,000 members, is the
largest tribe east of the Mississippi, and the largest
nonfederally recognized tribe in America. The Lumbees have
contributed so much, not just to North Carolina's heritage, but
to our entire Nation. There is no better way to say it: They
deserve full recognition, and they deserve it now.
Mr. Chairman and members of the Committee, I appreciate
your attention to this critical issue for North Carolina and
the Lumbee people. I pray this is the year when we will truly
see a resolution of this very important matter.
Mr. Chairman, as you know, I must ask to be excused now to
attend a hearing on the Senate side. But I very much appreciate
the privilege of expressing my passion for this cause, and I
thank you for the opportunity.
[The prepared statement of Senator Dole follows:]
Statement of The Honorable Elizabeth Dole, a U.S. Senator in Congress
from the State of North Carolina
Thank you, Mr. Chairman, for holding this important hearing today.
I sincerely want to thank both you and the Committee for allowing me to
testify.
There are many here in this room who are champions for the Lumbee--
Ranking Member Congressman Rahall--you are among them--and I thank you.
Also, I want to recognize the other two members of this panel.
Congressman McIntyre has worked tirelessly on Lumbee Recognition. And
Congressman Burr, who will testify later, continues to show a real
commitment to serving all the people of North Carolina.
Most importantly, I want to recognize and publicly thank the
members of the Lumbee Tribe, who traveled here from North Carolina.
Once again, I am in awe of their steadfast determination and commitment
to recognition. And it's contagious! It is my privilege to join you in
your passionate pursuit for fair acknowledgment from the Federal
Government.
A terrible injustice that has been done to the Lumbee Indians-full
federal recognition for this Tribe has been unfairly denied for over a
century.
Given that this was the subject of the first legislation I
submitted as a Senator, I am committed to achieving the goal of
recognition. I have great respect for the Lumbee people, a tribe of
great pride even after decades of disappointments. Spending time with
them--on so many different occasions--has invigorated me in my effort
to end this injustice.
Formally recognized by the state of North Carolina in 1885, the
tribe began a quest for federal recognition just three years later. Mr.
Chairman, this means they have been looking for federal recognition for
over 116 years!
Time and time again--in 1913, 1914 and yet again in 1933--studies
at the U.S. Department of Interior have determined that the Lumbee are
indeed an Indian Tribe, descended from the historic Cheraw Indians.
After years of stalled legislation, finally, in 1956, Congress
passed the Lumbee Bill which recognized the Tribe.
Unfortunately--there was a caveat--and the Tribe belatedly learned
they were denied the benefits and privileges that every other federally
recognized Tribe enjoys. Mr. Chairman, that caveat is what brings us
here today.
This discrimination must end. The Lumbees deserve full recognition
for their Tribe--not a partial nod that ignores the history and the
efforts of so many ancestors.
I introduced S. 420 as my first bill in the United States Senate
with one word in mind: fairness. Final passage of this legislation will
allow the Tribe to receive long overdue assistance in areas like
education, health care and economic development funding.
I know there are those who have argued--and will do so again
today--that the Lumbees should go through the Bureau of Indian Affairs
for federal recognition. But that process is reserved for Tribes whose
legitimacy must be established. There is no need for that in the case
of the Lumbee. Time and again, the legitimacy of the Tribe has been
established.
Yesterday this Committee heard testimony about the BIA recognition
process, a process which appears to be fundamentally flawed. Both this
committee and your counterparts in the Senate have been seeking a
better way. To force the Lumbee into that system would not only be
unfair but unconscionable!
According to a 2001 GAO report, it can take up to 15 years to
resolve completed petitions for recognition. 15 years! The Lumbees have
already waited far too long. It is wrong to impose yet another lengthy
delay on this Tribe. It's been 116 years, Mr. Chairman--let's not make
them wait another 15!
Let us do the fair thing, the right thing, to resolve this
injustice. The Lumbee Tribe, with 53,000 members, is the largest Tribe
east of the Mississippi and the largest non-federally recognized Tribe
in America. And the Lumbees have contributed so much, not just to North
Carolina's heritage, but to our entire nation.
There is no better way to say it: They deserve full recognition...
and they deserve it now!
Mr. Chairman, I appreciate your attention to this critical issue
for North Carolina and the Lumbee people. I pray this is the year when
we will truly see a resolution of this very important matter. Mr.
Chairman, as you know, I must asked to be excused now to attend a
Senate hearing, but I thank you again for the privilege of expressing
my passion for this cause.
______
The Chairman. I want to thank you, Senator. It was nice to
have you with us today.
Congressman McIntyre.
STATEMENT OF HON. MIKE McINTYRE, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NORTH CAROLINA
Mr. McIntyre. Thank you, Mr. Chairman. As Senator Dole is
departing, I do want to thank her again for her time to come
over to this side of the Hill and be with us on this extremely
important issue, and for all of her work.
Mr. Chairman and Members and the Committee, thank you for
the opportunity to testify before you today regarding Federal
recognition for the Lumbee Indians. A special thanks to
Chairman Pombo for his patience and willingness to work with me
on this issue, and to Mr. Rahall, Mr. Kildee and Mr.
Faleomavaega for their comments this morning and their long-
standing commitment and support over the years for the Lumbee
Indians.
In the late 1500s, when English ships landed on the shores
of Roanoke Island on the North Carolina coast, the Englishmen
discovered Native Americans in North Carolina. Included among
these Native Americans were both the Cheraw and Pee Dee
Indians, who are direct ancestors of the Lumbee Indians. Later,
in 1888, the Lumbees made their first effort to gain Federal
recognition.
For at least 500 years, Lumbee Indians have been
inhabitants of this land, and for over half of the time that
our country has been in existence, 115 of the last 227 years,
the Lumbee Indians have been seeking the respect they deserve
in their efforts of recognition. As the largest tribe east of
the Mississippi and the largest nonrecognized tribe in America,
it is unfathomable that this tribe of 53,000 people has never
been fully recognized by our Government. Indeed, the time for
Lumbee recognition has come.
Mr. Chairman and Committee Members, I was born and reared
and live in Robeson County, N.C., the primary home of the
Lumbee people. I go home almost every weekend and have the high
honor of representing approximately 40,000 Lumbees who live in
my home county. In fact, there are more Lumbees in Robeson
County than any other racial or ethnic group. The Lumbee
Indians, many of whom are in the audience today, are my
friends, many of whom I have known all my life.
With the Chairman's permission, since many of them got up
in the middle of the night to travel up here, and many in the
overflow room and many in the hall standing this morning, I
would like them to stand, just to be recognized for their
distance and commitment to travel here.
Would you please stand, if you're with the Lumbee Tribe.
Thank you very much. I appreciate your being here. My applause
to you.
[Applause.]
The Lumbees are important to the success of everyday life
in southeastern North Carolina. Their contributions to our
society are endless. From medicine and law, to business and
banking, from the farms and factories to the schools and
churches, from government, military and community service,
entertainment and athletic accomplishments, the Lumbees have
made tremendous contributions to our county, our State, and
yes, our Nation.
In fact, in my home county, the sheriff, the clerk of
court, the registrar of deeds, the chairman of the county
commissioners and other county commissioners, the
representative in the State Legislature of the area where I
live, who is with us today, Representative Ron Sutton, as well
as two of the district court judges and one of the superior
court judges, are all Lumbee Indians.
Mr. Chairman, those contributions are being recognized by
our colleagues here in the House through their support of H.R.
898, the legislation before you today. I am pleased to report
to the Resources Committee that with the 234 Members of the
U.S. House who have cosponsored this Lumbee recognition bill,
including 29 of the 52 members of the Resources Committee, we
feel that, indeed, time for recognition has come. Their
contributions have been recognized in both the public and
private sector.
I would just say to my colleagues, when the idea of going
through the standard process, so to speak, comes up, we are in
a unique situation that Congress created and Congress needs to
correct. It was the Congressional Act of 1956 concerning the
Lumbees that recognized them as Indians in name only. It gave
them no other Federal benefits. A similar situation happened to
the Tiwa Tribe in Texas in 1968. They were not allowed any
benefits. Congress recognized there was a problem and Congress
corrected the problem in 1978.
The Solicitor General of the United States, in 1989, has
given an advisory opinion that the Lumbees are ineligible for
the process, so there is no way they can go through the process
without congressional action. As far as the argument about the
process goes, indeed, as was pointed out by one of my
colleagues earlier, the process has not always been the way to
recognize tribes. In fact, only 16 out of the 561 tribes in
America were recognized by this process. In fact, since the
current process was implemented in 1978, 16 were recognized by
the process, and 20 by special legislation in Congress. In
other words, a majority have been recognized by special
legislation. So this is not something new or something that
would set an unusual precedent. In fact, we have a precedent
with the Tiwas of Texas and the Solicitor General's opinion,
that the only way to correct this is through congressional
legislation to recognize this tribe.
In conclusion, Mr. Chairman, let me say that it's time for
the U.S. Congress not to delay any more. Justice delayed is
justice denied. For too many years, there have been too many
delays. As you will hear from the third panel in just a few
moments, which will include their tribal attorney, the chairman
of the tribe, and also a noted anthropologist, you will see
that the evidence is clear, cogent, and convincing. It is time
to say yes to dignity and decency, to fundamental fairness, to
respect, to honor. Indeed, it's time to say yes to Federal
recognition. It is, indeed, time for discrimination to end and
recognition to begin.
I thank you for this opportunity to testify. I look forward
to working with the Committee and this time for long overdue
recognition. I pray, may God grant that justice will finally be
done. With your help, I am confident it will.
Thank you, Mr. Chairman.
[The prepared statement of Mr. McIntyre follows:]
Statement of The Honorable Mike McIntyre, a Representative in Congress
from the State of North Carolina
Mr. Chairman and Members of the Committee, thank you for the
opportunity to testify before you today regarding federal recognition
for the Lumbee Indians. A special thanks to Chairman Pombo for his
patience and willingness to work with me on this critical issue, and to
Mr. Rahall for his long-standing commitment and support to the Lumbee
Indians.
In the late 1500's, when English ships landed on the shores at
Roanoke Island on the North Carolina coast, the Englishman discovered
Native Americans. Included among those Native Americans were both the
Cheraw and Pee Dee Indians, who are direct ancestors of the Lumbee
Indians. Later, in 1888, the Lumbees made their first effort at gaining
federal recognition. For at least 500 years, Lumbee Indians have been
inhabitants of this land, and for over half of the time that our
country has been in existence, 115 of the 227 years, the Lumbee Indians
have been seeking the recognition and respect that they deserve. As the
largest tribe east of the Mississippi and the largest non-recognized
tribe in America, it is unfathomable that this tribe of 55,000 people
has never been fully recognized by our government. Mr. Chairman, the
time for Lumbee recognition has come!
I was born and reared in Robeson County, North Carolina, the
primary home of the Lumbee people. I go home there every weekend, and I
have the high honor of representing approximately 40,000 Lumbees who
live in my home county. In fact, there are more Lumbees in Robeson
County than any other racial or ethnic group. The Lumbee Indians, many
of whom are in the in the audience today, are my friends, many of whom
I have known all my life. They are important to the success of everyday
life in Southeastern North Carolina, and their contributions to our
society are numerous and endless. From medicine and law to business and
banking, from the farms and factories to the schools and the churches,
from government, military, and community service to entertainment and
athletic accomplishments, the Lumbees have made tremendous
contributions to our county, state, and nation. In fact, in my home
county, the sheriff, the clerk of court, the register of deeds, the
county commissioners chairman, and the representative in the state
legislature of the area where I live, as well as two of the district
court judges and one of the superior court judges are all Lumbee
Indians.
Mr. Chairman, those contributions are being recognized by our
colleagues here in the U.S. House through their support of H.R. 898,
legislation that I have introduced to grant the Lumbees federal
recognition. I am pleased to report to the Resources Committee, that
234 members of the U.S. House have co-sponsored Lumbee recognition
including 29 out of the 52 Members of the Resources Committee!
Lumbee contributions are also being recognized at home by both the
public and private sector. From City Councils to County Commissioners,
from the Chamber of Commerce to the Southeastern Regional Medical
Center--all have endorsed the effort to grant the Lumbees federal
recognition.
Mr. Chairman, in conclusion, let me urge this Committee, and this
U.S. Congress, not to delay any more on this issue. Justice delayed is
justice denied! As you will hear from the next panel, the evidence is
clear, cogent, and convincing. It is time to say ``yes''--yes to
dignity and respect; yes to fundamental fairness; yes to decency; yes
to honor; yes to federal recognition! It's time for discrimination to
end and recognition to begin!
Thanks again for the opportunity to testify, and I look forward to
working with you and the committee for this long over-due recognition.
May God grant that justice finally be done! With your help, I am
confident that it will!
______
The Chairman. Are there any questions of Mr. McIntyre? Mr.
Faleomavaega.
Mr. Faleomavaega. Mr. Chairman, I just want to commend the
gentleman from North Carolina for his most eloquent statement.
It was cogent, right to the point, and the facts of the issues
relevant to the proposed legislation. I sincerely hope that our
colleagues on the Committee will give him his due. I think he's
made a very, very cogent argument as far as giving recognition
to this tribe.
Thank you, Mr. Chairman.
Mr. McIntyre. Thank you, sir.
The Chairman. Mr. Kildee.
Mr. Kildee. Just briefly. The 1956 Act is rather bizarre.
Mr. McIntyre. It is.
Mr. Kildee. It would seem that on the one hand they were
patting the Lumbees on the back and at the same time kicking
them in the shins.
Mr. McIntyre. Yes, sir.
Mr. Kildee. How did such a monstrosity come about?
Mr. McIntyre. Well, in fact, I appreciate your pointing
that out. There were celebrations in the street in the town of
Pembrooke, where many of the Lumbees reside, after that 1956
Act, only to learn later that, indeed, the wool had been pulled
over their eyes, as we say. It was only a recognition in name,
which is probably the ultimate insult, because we say yes,
we'll pat you on the back, and then we will, as you say, kick
you in the shins.
Congress realized that once that had happened to another
tribe, as I said the Tiwas of Texas, there was no way to
correct it except by congressional legislation. What Congress
did, Congress needed to undo. Or in this situation, what
Congress did we need to correct and redo. Just as that was done
for the Tiwas, the Lumbees are the only tribe in America,
ladies and gentlemen, that are in this situation. The only
tribe that now exists that is under an Act of Congress, that
was recognized in name only, and has not been given the chance
to receive the full recognition of being recognized by the
Federal Government. This is simply the time to correct that.
Mr. Kildee. Thank you.
Thank you, Mr. Chairman.
Mr. McIntyre. Thank you, Mr. Kildee.
The Chairman. Mr. Jones.
Mr. Jones. Yes, sir.
Congressman McIntyre, even though I might be in opposition
to your bill, I do want to give you credit, and those that you
represent in Robeson County need to fully understand how hard
you have worked to get to this point.
Mr. McIntyre. Thank you, sir.
Mr. Jones. Also to those from Robeson County, many times
Members of Congress work two, three and 4 years to even get a
hearing. A hearing is a great step and Mr. McIntyre deserves a
lot of credit for that.
Mr. McIntyre, my concern truthfully is bypassing the
process. You have made some excellent points. You have done
your research and you have done your study. You know exactly
what you're saying. Let me ask you a couple of questions.
First, if the process was such that after all the
information, the seven requirements, were turned in to the BIA,
and in 18 months a decision was made, would that somewhat help
this issue, in your opinion? If there could be a resolution in
18 months.
Mr. McIntyre. Thank you for your comments and your words,
Congressman Jones.
Certainly, with all due respect, they have waited since
1888. I would hate to put a time limit short or long, because I
believe the time is now. I would like to see the Congress act
this year.
With the 234 cosponsors we have, and with this being the
last year of a 2-year session, as you know, I see no reason why
we delay them further. They've waited since 1888. They have
gone through the BIA and have been delayed and avoided. Then
the Solicitor General, as I said, has given an opinion that
they can't correct this situation without congressional action.
Being the only tribe in America in this situation, it could and
it should--Congress ought to correct what it did in 1956.
Mr. Jones. Let me ask you, if this recognition should take
place, would you want to see casinos in and around Robeson
County?
Mr. McIntyre. That decision is entirely a separate decision
that would be up to the Tribal Council and the tribe to decide,
even if they get recognition. I believe that that issue, which
is entirely separate, would be a separate issue that would have
to go through, as you may know, or as some of you may not know,
a four step process that would require the tribe to fulfill
before it would even consider that:
First, according to its Tribal Constitution; second, the
Secretary of Interior would have to have a determination that
it was in the best interests of the tribe; third, the Secretary
of Interior would have to determine it's in the best interests
of the community, the surrounding community; and fourth, then
the Governor would have to consent.
According to current law involving gaming, the Indian
Gaming Regulatory Act, or IGRA, as some call it by its acronym,
12 tribes have attempted to do that and only three have
succeeded in going through that entire process. So this is not
any kind of rubber stamp about gambling or any of that. This is
about recognition of the tribe. That is a completely separate
issue, a fourfold process that they would have to deal with, if
it were to come up.
I can tell you--and I will let the Lumbees speak for
themselves, and their attorney who will be able to talk with
you further about the legal aspects--but within the Lumbee
community, they would have to accept this and vote on this
pursuant to a referendum under their own Constitution. There is
not a decision that's been made on that. Their desire is for
the human dignity of recognition.
Mr. Jones. Just to pursue that a little bit further--and
then I will close, Mr. Chairman--if they pursued that process
to be allowed to have gaming, would you, as their Congressman,
rather for them not to pursue it if this recognition comes
forward?
Mr. McIntyre. I believe in the sovereignty of the tribe and
that the red man is tired of the white man telling him what he
can do.
Mr. Jones. All right.
Mr. McIntyre. And I believe that our country has an
unfortunate history in that regard. I believe and I respect our
Indian elders, many of whom are here today, and the Indian
church leaders, many of whom are very concerned about that
issue and who I know will be involved in that debate. In fact,
some of the most active Indian leaders in our State are Lumbee
Indians. In fact, for two terms in a row of the State Baptist
Convention, the Reverend Mike Cummings from our area of North
Carolina, a Lumbee Indian, was the leader, both in his own
denomination and including other races. So there will be a
healthy discussion on that issue.
But let me say something, Congressman. Under this process,
if that issue were to be considered, which is not part of this
bill at all, but if it were at a later time, I have already
described the one avenue would be the four-step process.
If we go through the process that you have outlined in
Representative Taylor's bill today, there would be three
avenues to try to obtain gambling, because under the BIA, there
are three different ways to go about getting it. So there are
actually more opportunities for that under Representative
Taylor's bill than under what you've brought up today.
The Lumbees have voluntarily limited themselves to only one
avenue, and it's a fourfold process. It's an entirely separate
issue.
Let me say this. The issue of casino gambling was not an
issue in 1888, and it wasn't an issue during the prior over 100
years. That issue did not even come up until very, very recent
history involving any Indian tribes. So to use that as an
excuse not to give this tribe recognition today is to stop them
from what they've long been overdue with regard to human
dignity.
Mr. Jones. Well, let me close on this, Mr. Chairman.
Again, I am saying that I believe sincerely that the
process can be improved and the process should work, for a
number of reasons. Mr. McIntyre, I do have great respect for
you and I do hope you are correct that if recognition should
move forward, this would not be an issue. But I believe and
hope it would not, for the simple reason that the Lumbees, who
deserve this recognition, but I think, though, it should go
through the process. The process should be fixed.
But I will tell you that, 10 years down the road, if there
should be an effort to have approval for some type of gambling
on I-95, it would create a problem in our State that I think
would be almost uncontrollable.
Thank you.
Mr. McIntyre. If I may respond, Mr. Chairman, I just want
to clarify that this bill, H.R. 898, says absolutely nothing
about gaming in and of itself. It does not allow gaming.
Mr. Jones. I understand that.
Mr. McIntyre. That is an entirely separate process.
Mr. Jones. I understand that.
Mr. McIntyre. And there is a four-step process, as I
described earlier.
The Chairman. Mr. Pallone.
Mr. Pallone. I wanted to ask a question, but let me just
say that I don't think the issue of gambling should play any
role in the decision on whether there's recognition, nor should
I--
Mr. McIntyre. Thank you.
Mr. Pallone.--nor should I think the other issue that has
come up, which is the fact that this is a large tribe that
would inevitably result in major Federal funding for services
be an issue. That should not in any way be the basis for
recognition.
I wanted to ask you one question that goes back to what Mr.
Jones said. If you were to follow this process where they
repealed, I guess, the '56 law, and there was the possibility
of going through the BIA recognition route, do you oppose that
simply because you don't think it's fair in the sense that
they've been waiting so long, and they haven't been allowed to
do that in the past, or is it just a question of fairness that
you oppose that, or is there some legal reason?
In other words, in my opening I made the point that I think
it's sometimes necessary for us to pass legislation recognizing
a tribe if the Federal Government has made it difficult or
somehow intentionally made the traditional process impossible.
Would there be any hindrance if they had to go through the BIA
and they were allowed to by the Taylor legislation, or is it
just a question of the fairness of it that would make you
oppose that?
Mr. McIntyre. It is both. First of all, it's fundamentally
unfair to treat this tribe differently than any other tribe in
America, when it has already been treated differently by being
put in this unique situation, as earlier explained. But second,
legally, there is no precedent to do that, to say all right,
now we're going to make you eligible by Congressional Act, and
now go back through the process, which is again putting the
double whammy on the tribe. Congress in all other cases has
gone on and owned up to its decision to say yes, we will
recognize you, or a tribe may have gone separately through a
process.
This tribe is ineligible to go separately through the
process, as I have already explained by the Solicitor General's
opinion of 1989. There is a precedent of how that was dealt
with, with the Tiwa Indians that I described earlier. Congress
has no precedent and has never made a tribe go back to the
process when deciding on the issue of Federal recognition.
As mentioned earlier, only 16 tribes out of 561 have had to
go through that process that's currently in effect. Even the
majority of tribes that have been recognized since that process
was put into place have been done by congressional recognition.
So why would we, once again, put the Lumbees in another unique
legal situation that no tribe has ever been put in before,
rather than straight-up dealing with recognition, saying OK,
we're going to now pass legislation and now we're going to make
you go back through yet another process again.
We need to own up to our responsibility. They have already
been put in a unique situation, and there is legal precedent to
properly deal with the situation, as was done with the Tiwas of
Texas.
Mr. Faleomavaega. Would the gentleman yield?
Mr. Pallone. I yield to you, certainly.
Mr. Faleomavaega. I'm sorry that our good friend from North
Carolina is not here, but I just wanted to share with him my
own personal experience. We have held hearings years ago on
this very issue.
On the question of recognition, I think we also need to
recognize to the members of the Committee that this is not a
congressionally mandated process. It was a process that was
created by the bureaucracy in the Department of Interior. In
fact, we even had the gentleman who wrote the regulations on
the seven points that the tribe needs to be recognized on, and
even the gentleman confessed that if he was to go through the
process, even he wouldn't ever be able to be recognized as a
tribe. So this is how terrible the process has been.
We have had to put the poor tribes under a tremendous
financial burden. They have had to hire anthropologists,
archaeologists. We had even a member of the Lumbee Tribe
testify as to the most inhumane way to figure out the kind of
teeth that he had to determine whether or not he was an
American Indian. It's so incredulous. But this is the kind of
process that these tribes have been subjected to all these
years.
I would say to the gentleman that the process, in layman's
terms, sucks. It just simply is so inhumane and impractical and
it does not really give fairness. The Lumbee Tribe has tried
the process.
Now, if you're a tribe and you don't have $500,000 in your
pocket to pay for these so-called experts, you're out of it.
You can't even begin the process of recognition, if you're
financially unable to provide for all these experts.
Then the question comes to mind, where do you get these
experts? The Department of Interior chooses these so-called
experts, the anthropologists and archaeologists. I will say,
Mr. Chairman, if I catch another anthropologist coming to my
islands, I'm going to shoot him, because they give
contradictory statements even among themselves as to who the
real experts are when determining what an Indian is.
So I say to my good friend from New Jersey, yes, the
process is there, but it simply is impractical and does not
work.
Thank you.
Mr. McIntyre. If I may respond, Mr. Chairman, just briefly,
the studies have been done. They have gone through everything
they need to do to prove they're a tribe. To send them back
through another process, to spend time, money and resources
that would involve Federal Government time, money and
resources, as well as travel time and resources, is patently
unfair. It has never been done by Congress to any other tribe,
and I think it would be a terrible new precedent to make this
tribe go back through a process that you'll hear testimony
today regarding them being a tribe--and Congress acknowledged
they were a tribe of Indians in '56; it was just a question of
the name--that now we come to this point today.
With that, I believe you will be impressed by the testimony
of the third panel, which will explain that. I appreciate your
asking the question, Mr. Pallone, and your response, too, Mr.
Faleomavaega.
Mr. Pallone. Thank you, Mr. Chairman.
Mr. McIntyre. I believe I have been joined by my colleague
who was to testify.
The Chairman. I don't know if I'm going to let him testify.
[Laughter.]
Mr. Rahall. Mr. Chairman, before you make that decision,
may I ask that you see that both of our colleagues, Mr.
McIntyre and Mr. Burr, as I believe they desire to do, be
allowed to sit on this panel following their testimony for the
remainder of today's hearing.
The Chairman. Do I hear any objection? Anybody? Without
objection.
Mr. McIntyre. Thank you very much.
Mr. Carson. Chairman Pombo, if I could also ask unanimous
consent to submit my statement for the record. I was sadly not
here during the time for opening statements and I would like to
enter one for the record that expresses my concern about the
legitimacy of the process, as well as recognizing the
legitimate aspirations of the Lumbee Tribe. So if I could have
unanimous consent to do that, I would appreciate it.
The Chairman. Without objection.
[NOTE: Mr. Carson's prepared statement was not available.]
The Chairman. Well, Congressman Burr. Welcome.
STATEMENT OF HON. RICHARD BURR, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NORTH CAROLINA
Mr. Burr. Mr. Chairman, thank you. I thank the Ranking
Member as well, not only for the courtesy of allowing me to
come to testify, but the unanimous consent to let us sit on the
panel. Given what I have just flown through to get here in this
storm, I'm glad to be on the ground and I'll sit anywhere I can
find right now.
[Laughter.]
Mr. Chairman, it is indeed an honor to be allowed to come
in here. I want to take this opportunity to first highlight the
work of Senator Dole and of Congressman McIntyre.
Upon taking office last January, Senator Dole made it her
first legislative priority, that the issue of Lumbee
recognition be resolved. Her determination and hard work have
paid off as her companion bill has been reported out of the
Indian Affairs Committee and now awaits consideration by the
U.S. Senate.
I don't think this issue, though, would have been receiving
the attention that it currently is today if it were not for the
work of the guy to my right, Mike McIntyre. Robeson County is
his home county. Mike's work behind the scenes, both in North
Carolina and here in Washington, his passion for the issue,
have been crucial in the momentum this bill gained in the House
of Representatives. I can say that it has been a pleasure to
work with both of them and to be here with them today in
support of this important issue.
Mr. Chairman, the Lumbees have been part of eastern North
Carolina history for centuries. They have served their
community as farmers, doctors, lawyers, small business owners
and bankers. They have served their county as sheriffs and
clerk of courts. They have served as State legislators and
judges. Some have protected all of us in their service to our
national armed forces.
It is long past time that the Lumbee Tribe receive the
recognition they deserve. The Lumbees have been seeking this
recognition since the 1880s. The issue has been studied by the
Interior Department since 1913. It has been debated in Congress
since at least 1956, if not earlier.
As a cosponsor of both pieces of legislation that would
move the Lumbees toward full recognition, I feel that the
question is not so much whether they should be recognized but
how the Federal Government goes about granting this
recognition. This is a decision that this Committee, and upon
the recommendation of this Committee, the full House will, in
fact, make.
There are those who will argue today that the tribe should
go through the Bureau of Indian Affairs process for Federal
recognition. The tribe is currently prohibited from utilizing
the petition process. Our colleague from Asheville, Charles
Taylor, has introduced legislation that would remove this
barrier and allow the Lumbees to submit a petition to the
Bureau of Indian Affairs.
While that argument does have merit, let me point out two
things that I hope you will keep in mind during this hearing
today.
One, the Bureau's process is reserved for tribes for whom
legitimacy must be established. The legitimacy of the Lumbees
dates back to the late 1800s and has been reaffirmed many times
over in the 100-plus years since by our State government, the
Federal Government, and by leaders in the field of anthropology
who have studied Native American tribes.
The Bureau's process itself is flawed. You will hear a lot
today about a 2001 GAO report on the recognition process. Let
me sum up for you what I found to be the most glaring problem
identified by that report.
According to the GAO, the length of time to resolve the
completed petition process may take up to 15 years, assuming
that the Lumbee petition would be moved to the front of the
line. Is it fair to make a tribe, whose legitimacy has already
been established, wait the better part of two more decades to
be granted recognition it has sought for over 100 years?
The McIntyre and Dole bills would grant the Lumbees full
Federal recognition. Some will argue that a legislative
approach will circumvent the BIA process and that the Lumbees
would be receiving an unprecedented legislative remedy that no
other tribe has ever received. The Congress has, however, in
various legislative vehicles, granted tribes full Federal
recognition through the legislative process. In fact, since
1980, at least four eastern tribes that received full
recognition from the Federal Government received that
designation as a result of an Act of Congress.
Mr. Chairman, our State motto is ``Esse Quam Videri'', and
translated from Latin, it means ``to be, rather than to seem.''
I don't think it could better describe that which the Lumbees
seek: to be a tribe, rather than to seem to be a tribe.
The Lumbees pursuit of this recognition has now touched
three centuries. By whatever method the committee--and let me
stress this--by whatever method the committee chooses to bless
this recognition, I will support wholeheartedly.
Again, Mr. Chairman, Ranking Member, I appreciate the
courtesy that this committee has shown. I know the makeup of
this committee will, in fact, review this issue with the
seriousness that I think it deserves, because of the length of
time that it has remained dormant.
With that, Mr. Chairman, I have concluded my statement and
yield back my time.
[The prepared statement of Mr. Burr follows:]
Statement of The Honorable Richard Burr, a Representative in Congress
from the State of North Carolina
Chairman Pombo, Ranking Member Rahall, my friend Mr. Jones from
North Carolina, Members of the Resources Committee: Thank you for
giving me the opportunity to come before you today to testify about
H.R. 898, a bill that will grant full federal recognition to the Lumbee
Tribe of North Carolina.
I want to take this opportunity to first highlight the work of two
of my North Carolina colleagues, Senator Elizabeth Dole and
Representative Mike McIntyre.
Upon taking office last January, Senator Dole made it her first
legislative priority that the issue of Lumbee recognition be resolved.
Her determination and hard work have paid off as her companion bill has
been reported out of the Indian Affairs Committee and now awaits
consideration by the full Senate.
But I don't think this issue would be receiving the attention it is
today if it were not for the work of my colleague from Robeson County,
Mike McIntyre. Mike's work behind the scenes both in North Carolina and
here in Washington--his passion for this issue--have been crucial to
the momentum this bill has gained in the House.
It is a pleasure to join both of them here today in support of
Lumbee recognition.
The Lumbees have been a part of eastern North Carolina history for
centuries. They have served their community as farmers, doctors and
lawyers, small business owners and bankers. They have served their
county as sheriffs and clerks of courts; served our state as
legislators and judges. Some have protected all of us with their
service in our nation's Armed Forces.
It is long past time that the Lumbee Tribe receives the full
recognition they deserve. The Lumbees have been seeking this
recognition since the 1880's. The issue has been studied by the
Interior Department since 1913 and debated in Congress since at least
1956, if not earlier.
As a cosponsor of both pieces of legislation that would move the
Lumbees towards full federal recognition, I feel that the question is
not so much whether they should be recognized, but how the federal
government goes about granting this recognition. That is a decision
this Committee and, upon the recommendation of this Committee, the full
House, will make.
There are those who will argue today that the Tribe should go
through the Bureau of Indian Affairs process for federal recognition.
The Tribe is currently prohibited from utilizing the petition process.
Our colleague from Asheville, Chairman Taylor, has introduced
legislation that would remove this barrier and allow the Lumbees to
submit a petition to the Bureau of Indian Affairs.
While that argument does have merit, let me point out two things
that I hope you will keep in mind during this hearing today:
The Bureau's process is reserved for Tribes for whom
legitimacy must be established. The legitimacy of the Lumbees dates
back to the late 1800s and has been reaffirmed many times over in the
100-plus years since--by our state government, the federal government
and by leaders in the field of anthropology who have studied Native
American Tribes; and
The Bureau's process itself is flawed. You will hear a
lot today about a 2001 GAO Report on the recognition process. Let me
sum up for you what I find to be the most glaring problem identified by
the report. According to GAO, the length of time to resolve a completed
petition process may take up to 15 years--assuming that the Lumbee
petition would be moved to the front of the line. Is it fair to make a
tribe, whose legitimacy has already been established, wait the better
part of two more decades to be granted recognition it has sought for
over one hundred years?
The McIntyre and Dole bills would grant the Lumbees full federal
recognition. Some will argue that a legislative approach will
circumvent the BIA process and that the Lumbees would be receiving an
unprecedented legislative remedy that no other Tribe has ever received.
The Congress has, however--in various legislative vehicles--granted
tribes full federal recognition through the legislative process. In
fact, since 1980, at least four Eastern Tribes that received full
recognition from the federal government, received that designation as
the result of an Act of Congress.
Mr. Chairman, the state motto of North Carolina is ``Esse Quam
Videri,'' and translated from Latin it means: ``To be, rather than to
seem.'' I don't think it could better describe that which the Lumbees
seek--to be a tribe, rather than seem to be a tribe.
The Lumbees pursuit of this recognition has now touched three
centuries. By whatever method the Committee chooses to bless this
recognition, I will support wholeheartedly. Again, I appreciate the
opportunity to testify before this Committee and look forward to
working with all of you on this matter.
______
The Chairman. Thank you.
I would like to invite our two colleagues to join us on the
dais and take the opportunity to call up our second panel. We
have had a great deal of discussion already this morning and I
would like to move to our second panel.
The Administration witness and former employee of this
committee, Mike Olsen, is the Counselor to the Assistant
Secretary for Indian Affairs of the Interior Department. He is
accompanied by Lee Fleming, Director of the Office of Federal
Acknowledgment.
Also on the panel is Principal Chief Michell Hicks of the
Eastern Band of Cherokee Indians, a federally recognized tribe
in North Carolina.
Before you get too settled in, if I could have you stand
and raise your right hand.
[Witnesses sworn.]
Thank you. Let the record show they all answered in the
affirmative.
Welcome to the Committee. It's nice to have you with us
here this morning. We look forward to your testimony.
Mr. Olsen, it's nice to have you back, good to see you
again, and when you're ready, you may begin.
STATEMENT OF MICHAEL D. OLSEN, COUNSELOR TO THE ASSISTANT
SECRETARY FOR INDIAN AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR;
ACCOMPANIED BY R. LEE FLEMING, DIRECTOR, OFFICE OF FEDERAL
ACKNOWLEDGMENT, BUREAU OF INDIAN AFFAIRS
Mr. Olsen. Thank you. I appreciate that. Mr. Pombo and
Ranking Member Rahall, it's a pleasure to be here again.
As you said, my name is Mike Olsen. I am a counselor to the
Assistant Secretary for Indian Affairs at the Department of the
Interior. I am here today to provide the Administration's
position on H.R. 898, the Lumbee Recognition Act.
While Congress clearly possesses the power to recognize
Indian tribes, the Department has traditionally opposed
congressional attempts to recognize tribal groups, largely
because the criteria and process the Department has established
provide for thorough analysis and deliberation and consistency
in decisionmaking. However, the Department recognizes that
certain legislation in this case is needed, given the unique
status of the Lumbee Indians.
The recognition of another sovereign is one of the most
solemn and important responsibilities delegated to the
Secretary of the Interior. Federal acknowledgment of an Indian
tribe establishes a government-to-government relationship
between the United States and the tribe, and carries with it
certain immunities and privileges for the tribe. It also
creates responsibilities for the Federal Government with
respect to that tribe.
Under the Department's regulations, in order to receive
Federal recognition, a petitioning group must demonstrate that
it meets each of seven mandatory criteria. The petitioner must
demonstrate that it has been identified as an American Indian
entity on a substantially continuous basis since 1900.
The petitioner must also show that a predominant portion of
the group comprises a distinct community and has existed as a
community from historical times until the present.
In addition, the petitioner must demonstrate that it has
maintained political influence or authority over its members as
an autonomous entity from historical times until the present.
The petitioner must provide a copy of the group's present
governing document, including its membership criteria.
The petitioner must also demonstrate that its membership
consists of individuals who descend from a historical Indian
tribe or tribes that combined and functioned as a single
autonomous political entity and provide a current membership
list.
The petitioner must show that the membership of the
petitioning group is composed principally of persons who are
not members of any acknowledged North American Indian tribe.
Finally, the petitioner must demonstrate that neither the
petitioner nor its members are the subject of congressional
legislation that has expressly terminated or forbidden the
Federal relationship.
Unfortunately, the Act of June 7th, 1956, as has been
mentioned before, which bars the Lumbee Indians from
participation in the Federal programs designed to serve
Indians, makes it impossible for the Lumbees to avail
themselves of the Department's acknowledgment process. The Act,
while clearly identifying the Lumbee as Indian persons,
specifically prohibited them from accessing services and
statutes available to Indians because of their status as
Indians. The Department therefore recognizes that legislation
is needed to at least give the Lumbee the opportunity to
participate in the acknowledgment process.
If Congress elects to recognize the Lumbee legislatively,
the Department believes that several issues should be
addressed. A couple of those are the following:
First, the Department, as you are aware, is devoting a
great deal of time to trust reform efforts. Both the Department
and the courts are attempting to define the trust relationship
and the specific duties and responsibilities that the United
States has to Indian tribes. Much of the confusion of the role
of the United States as trustees stems from the lack of clear
guidance as to what the exact roles and responsibilities of
both the trustee and the beneficiary are.
The Department, therefore, recommends that Congress set out
the details of this relationship when it is created, either
through legislation or through some other trust instrument.
The Department is also concerned with the provision
requiring the Secretary in the legislation, within 1 year, to
verify tribal membership. In our experience, this is a time-
consuming and work intensive process that has taken several
years to complete with much smaller groups. Typically, it
requires a review of every individual's genealogical history,
traced from the present back to a person who was a member of
the historical tribe from which the person has descended.
In the 1980s, the Department received a document
identifying the membership of the Lumbee at over 27,000
persons. Current estimates place the membership anywhere from a
range of 30-40 and upwards of 40,000 members. BIA's Office of
Federal Acknowledgment estimates, based on its current staff
levels, that verification of Lumbee membership will take
several years at best.
The Department is willing to work with the committee to
resolve these issues and others that we point out in our
written testimony. But at a minimum, we support an amendment to
the 1956 Act to authorize the Lumbee to participate in the
Department's acknowledgment process.
This concludes my prepared statement, and I would be happy
to answer any questions.
[The prepared statement of Mr. Olsen follows:]
Statement of Michael D. Olsen, Counselor to the Assistant Secretary for
Indian Affairs, U.S. Department of the Interior
Good morning, Mr. Chairman and Members of the Committee. My name is
Michael Olsen, Counselor to the Assistant Secretary for Indian Affairs.
I am here today to provide the Administration's testimony on H.R. 898,
the ``Lumbee Recognition Act.''
The recognition of another sovereign is one of the most solemn and
important responsibilities delegated to the Secretary of the Interior.
Federal acknowledgment enables tribes to participate in federal
programs and establishes a government-to-government relationship
between the United States and the tribe. Acknowledgment carries with it
certain immunities and privileges, including exemptions from state and
local jurisdiction and the ability to undertake casino gaming. The
Department believes that the Federal acknowledgment process set forth
in 25 C.F.R. Part 83, ``Procedures for Establishing that an American
Indian Group Exists as an Indian Tribe,'' allows for the uniform and
rigorous review necessary to make an informed decision establishing
this important government-to-government relationship.
Before the development of these regulations, the federal government
and the Department made determinations as to which groups were tribes
when negotiating treaties and determining which groups could reorganize
under the Indian Reorganization Act (25 U.S.C. 461). Ultimately there
was a backlog in the number of petitions from groups throughout the
United States requesting that the Secretary officially acknowledge them
as Indian tribes. Treaty rights litigation in the West and land claims
litigation in the East highlighted the importance of these tribal
status decisions. Thus, the Department in 1978 recognized the need to
end ad hoc decisionmaking and to adopt uniform regulations for federal
acknowledgment.
Under the Department's 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.
Under the Indian Commerce Clause, Congress has the authority to
recognize a ``distinctly Indian community'' as a tribe. Because of its
support for the deliberative regulatory acknowledgment process,
however, the Department has traditionally opposed legislative
recognition. Notwithstanding that preference, the Department recognizes
that some legislation is needed given the unique status of certain
Indians in North Carolina.
In 1956, Congress designated these certain Indians then ``residing
in Robeson and adjoining counties of North Carolina'' as ``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 or 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 25
C.F.R. Part 83, and that Lumbee Indians were therefore precluded from
consideration for federal acknowledgment under the administrative
process. Because of the 1956 Act, we acknowledge that legislation is
necessary if Lumbee Indians are to be afforded the opportunity to
petition the Department under 25 C.F.R. Part 83. The Department would
welcome the opportunity to assist the Congress in drafting such
legislation.
If Congress elects to bypass the regulatory acknowledgment process
in favor of congressional recognition, it may only recognize Lumbee
Indians as a tribe pursuant to its Commerce Clause authority if a court
could decide that Congress had not acted arbitrarily in implicitly or
explicitly finding that Lumbee Indians constitute a distinct Indian
community. Among other factors, Congress would have to identify or be
relying upon the historical continuity of a unified community under one
leadership or government. If Congress made the proper express findings
(or implicitly relied on sufficient evidence) and then granted Lumbee
Indians federally recognized status, the Department believes that
Congress should be cognizant of several important issues that federal
recognition raises. As currently drafted, H.R. 898 leaves many
questions to these issues unanswered.
Under the provisions of this bill, Lumbee Indians would be afforded
all benefits, privileges and immunities of a federally recognized
tribe. Thus, the ``Lumbee Tribe of North Carolina,'' as styled in H.R.
898, would be authorized to conduct gaming activities pursuant to the
Indian Gaming Regulatory Act (IGRA). Prior to conducting Class III
gaming, the Lumbee Tribe of North Carolina would need to negotiate a
gaming compact with the State of North Carolina. In addition, the
Lumbee Tribe of North Carolina must have lands taken into trust.
Generally, if a tribe wants to game on land taken into trust after the
passage of IGRA, it must go through the two-part determination
described in 25 U.S.C. Sec. 2719(b)(1)(A). This process requires the
Secretary to determine, after consultation with the tribe and the local
community, that gaming is in the best interest of the tribe and its
members and not detrimental to the local community. If the Secretary
makes that determination in favor of allowing gaming, then the gaming
still cannot occur without the Governor's concurrence. The bill as
drafted does not prohibit gaming.
The Department has devoted a great deal of time to trust reform
discussions. The nature of the trust relationship is now often the
subject of litigation. Both the Executive Branch and the Judicial
Branch are faced with the question of what exactly did Congress intend
when it established a trust relationship with individual tribes, and
put land into trust status. What specific duties are required of the
Secretary, administering the trust on behalf of the United States, with
respect to trust lands? Tribes and individual Indians frequently argue
that the duty is the same as that required of a private trustee. Yet,
under a private trust, the trustee and the beneficiary have a legal
relationship that is defined by private trust default principles and a
trust instrument that defines the scope of the trust responsibility.
Congress, when it establishes a trust relationship, should provide the
guideposts for defining what that relationship means.
Much of the current controversy over trust stems from the failure
to have clear guidance as to the parameters, roles and responsibilities
of the trustee and the beneficiary. In this case, given that we would
be taking land into trust in an area in which there has not previously
been federal trust land, such issues as land use, zoning, and the scope
of the Secretary's trust responsibility to manage the land should be
addressed with clarity and precision. Congress should decide these
issues, not the courts. Therefore, we recommend the Committee set forth
in the bill the specific trust duties it wishes the United States to
assume with respect to Lumbee Indians of North Carolina. Alternatively,
the Committee should require a trust instrument before any land is
taken into trust. This trust instrument would ideally be contained in
regulations drafted after consultation with the tribe and local
community, consistent with parameters set forth by Congress in this
legislation. The benefits of either approach are that it would clearly
establish the beneficiary's expectations, clearly define the roles and
responsibilities of each party, and establish how certain services are
provided to tribal members.
Another issue we have identified is requiring the Secretary to
determine who would be eligible for services and benefits. Section 3
requires the Secretary to determine all Lumbee members eligible for all
services and benefits provided to Indians because of their status as a
member of a federally recognized tribe. However, each program has
different criteria for eligibility and the Secretary cannot determine
eligibility for such things as health care.
In addition, section 3 may raise a constitutional problem by
purporting to require the President to submit annually to the Congress
as part of his annual budget submission a budget that is recommended by
the head of an executive department for programs, services and benefits
to the Lumbee. Under the Recommendations Clause of the United States
Constitution, the President submits for the consideration of Congress
such measures as the President judges necessary and expedient.
We are also concerned with the provision requiring the Secretary,
within one year, to verify tribal membership. In our experience this is
an extremely involved process that has taken several years with much
smaller tribes. Although, the bill states that, ``The Secretary's
verification shall be limited to confirming compliance with the
membership criteria set out in the tribe's constitution adopted on
November 11, 2000.'' We do not currently have access to the necessary
tribal rolls and have no idea how expansive this verification process
might be.
Should Congress choose not to enact H.R. 898, the Department feels
that at a minimum, Congress should amend the 1956 Act to afford Lumbee
Indians of North Carolina and other groups of ``Robeson and adjoining
counties'' the opportunity to petition for Federal acknowledgment as an
Indian tribe under the Department's Administrative process at 25 C.F.R.
Part 83.
This concludes my prepared statement. I would be happy to answer
any questions the Committee may have.
______
[The Department of the Interior's response to questions
submitted for the record follows:]
Response to questions submitted for the record by the
U.S. Department of the Interior
QUESTION 1: Please provide the CBO cost estimate regarding Federal
recognition of the Lumbee Indian Tribe of North Carolina, which you
referred to in your testimony before the Committee and that supports
your testimony.
ANSWER: By letter dated November 21, 2003, the Congressional Budget
Office transmitted the cost estimate for S. 420, the companion bill to
H.R. 898, the ``Lumbee Recognition Act.'' Specifically, pages seven
through nine of Senate Report 108-213, states, ``Providing for the
Acknowledgment of the Lumbee Tribe of North Carolina, and for other
purposes'' presents CBO's cost estimate of ``about $430 million over
the 2004-2008 period, assuming that the tribe receives services and
benefits at a level similar to other currently recognized tribes and
that the necessary funds are appropriated.''
QUESTION 2: Please identify any constitutional provision, judicial
opinion or other authority imposing a limitation on the power of
Congress to extend ``recognition'' to Indian tribes that supports the
statement that ``Among other factors, Congress would have to identify
or be relying upon the historical continuity of a unified community
under one leadership or government.''
ANSWER: Many court decisions and judicial opinions pertain to
tribal existence. At least two Supreme Court decisions and one Court of
Appeals decision support or are related to the statement that ``Among
other factors, Congress would have to identify or be relying upon the
historical continuity of a unified community under one leadership or
government.'' These three decisions are: (1) United States v. Sandoval,
231 U.S. 28 (1913) (limits on Congress's authority), (2) Montoya v.
United States, 180 U.S. 261 (1901) (community under one leadership),
and (3) United States v. Washington, 641 F. 2d. 1368 (9th Cir. 1981),
cert. denied, 454 U.S. 1143 (1982) (historical continuity).
QUESTION 3: Since enactment of the Indian Gaming Regulatory Act
(IGRA), please provide to the Committee the number of Indian tribes
that have sought to have lands taken into trust for gaming, pursuant to
25 U.S.C. Sec. 2719(b)(1)(A).
ANSWER: Section 20(b)(1)(A) of IGRA, 25 U.S.C. 2719(b)(1)(A), does
not authorize the Secretary of the Interior to take land into trust for
gaming purposes. Instead, it is an exception to the prohibition on
gaming on lands taken into trust after October 17, 1988, contained in
Section 20(a) of IGRA, and provides that gaming on lands taken into
trust after October 17, 1988, can only occur if the Secretary, after
consultation with the Indian tribe and appropriate State and local
officials, including officials of nearby Indian tribes, determines that
a gaming establishment on newly acquired lands would be in the interest
of the tribe and its members, and would not be detrimental to the
surrounding community, but only if the governor of the State in which
the gaming activity is to be conducted concurs in the Secretary's
determination. There are seventeen tribes who have applied for this
two-part Secretarial determination under Section 20(b)(1)(A) since the
enactment of IGRA. Of these, only three (3) tribes have received a
gubernatorial concurrence to a positive Secretarial two-part
determination. The general statutory authority for the Secretary to
take land into trust for Indian tribes is Section 5 of the Indian
Reorganization Act of 1934, 25 U.S.C. 465.
QUESTION 4: Please provide to the Committee the number of Federally
recognized Indian tribes that were recognized by statute and how many
tribes were recognized by the Department of the Interior.
ANSWER: The following tribes have been recognized or restored by
statute since 1978, the year the Federal Acknowledgment Regulations
became effective:
1. Modoc Tribe of Oklahoma--Public Law 95-281
2. Pascua Yaqui Tribe of Arizona--Public Law 95-375
3. Cedar City Band of Paiute Indians of Utah--Public Law 96-227.
4. Houlton Band of Maliseet Indians of Maine--Public Law 96-420
5. Cow Creek Band of Umpqua--Public Law 97-391
6. Kickapoo Traditional Tribe of Texas--Public Law 97-429
7. Mashantucket Pequot Tribe of Connecticut--Public Law 98-134
8. Ysleta Del Sur Pueblo of Texas--Public Law 100-89
9. Lac Vieux Desert Band of Lake Superior Chippewa Indians of
Michigan--Public Law 100-420
10. Coquille Tribe of Oregon--Public Law 101-42
11. Aroostook Band of Micmac Indians of Maine--Public Law 102-171
12. Pokagon Band of Potawatomi Indians of Michigan--Public Law
103-324
13. Little River Band of Ottawa Indians of Michigan--Public Law
103-324
14. Little Traverse Bay Bands of Odawa Indians of Michigan--Public
Law 103-324
15. Central Council of the Tlingit & Haida Indian Tribes, Alaska--
Public Law 103-454
16. Loyal Shawnee Tribe, Oklahoma--Public Law 106-568
In addition, the following list includes the names of the tribes
acknowledged to have a relationship with the Federal government by
actions of the Department of the Interior, as noted:
1. Karuk Tribe of California, Decision by Assistant Secretary--
Indian Affairs (AS-IA), 1/15/1979
2. Grand Traverse Band of Ottawa & Chippewa Indians of Michigan,
Administrative recognition under 25 C.F.R. Part 83 (AR), 5/27/1980
3. Jamestown S'Klallam Tribe of Washington, AR, 2/10/1981
4. Jamul Indian Village of California, Deputy AS-IA designation
as half-blood community, 7/7/1981
5. Tunica-Biloxi Indian Tribe of Louisiana, AR, 9/25/1981
6. Death Valley Timbi-Sha Shoshone Band of California, AR, 1/3/
1983
7. Narragansett Indian Tribe of Rhode Island, AR, 4/11/1983
8. Poarch Band of Creek Indians of Alabama, AR, 8/10/1984
9. Wampanoag Tribe of Gay Head (Aquinnah) of Massachusetts, AR,
4/11/1987
10. San Juan Southern Paiute Tribe of Arizona, AR, 3/28/1990
11. Ione Band of Miwok Indians of California, Decision of AS-IA,
3/22/1994
12. Mohegan Indian Tribe of Connecticut, AR, 5/14/1994
13. Jena Band of Choctaw Indians, Louisiana, AR, 8/29/1995
14. Huron Potawatomi, Inc., Michigan, AR, 5/17/1996
15. Samish Indian Tribe, Washington, AR, 4/26/1996
16. Match-e-be-nash-she-wish Band of Potawatomi Indians of
Michigan, AR, 8/23/1999
17. Snoqualmie Tribe, Washington, AR, 10/6/1999
18. Lower Lake Rancheria, California, Decision by AS-IA,
reaffirmation of recognition, 12/29/2000
19. King Salmon Tribe, Alaska, Decision of AS-IA, reaffirmation of
recognition, 12/29/2000
20. Shoonaq' Tribe of Kodiak, Alaska, Decision of AS-IA,
reaffirmation of recognition, 12/29/2000
21. Cowlitz Tribe of Indians, Washington, AR, 1/4/2002
______
The Chairman. Thank you, Mr. Olsen.
Mr. Fleming, I understand you have joined us again today
just to help with answering technical questions and are
available for questions of the membership.
Mr. Fleming. That's correct.
The Chairman. We thank you, and welcome back to the
Committee.
Mr. Hicks.
STATEMENT OF PRINCIPAL CHIEF MICHELL HICKS,
EASTERN BAND OF CHEROKEE INDIANS
Mr. Hicks. Hello. Chairman Pombo, Ranking Member Rahall,
and members of the Resources Committee, I thank you for the
opportunity to testify before you today. We appreciate all that
you do for Indian Country.
I also want to thank the Principal Chief, Chad Smith, of
the Western Band, a Cherokee who has traveled from Oklahoma
here today. In addition, I would like to thank the Tribal
Council of the Eastern Band, along with several elders that
have traveled with me from Cherokee.
Mr. Chairman, we stand united on this issue in opposing
this bill. Our people and tribes across this country feel
strongly about this issue, for several reasons. First, the
integrity of our long government-to-government relationships
with the United States is undermined when politics and emotions
take over, rather than facts about the tribal identity. And
folks, this is all about identity.
Second, the Office of Federal Acknowledgment at the
Interior Department, not the Congress, has the experts to make
determinations on the merits about tribal identity and
recognition.
Third, this bill, based on the Lumbees' own population
estimates, would cost this government more than $682 million
over a 4-year period, especially at a time when Federal Indian
funding is shrinking, and it's definitely not growing.
Mr. Chairman, the Eastern Band of Cherokee is a federally
recognized tribe, with 13,000 proud members. We and our Western
Cherokee brothers have a long history of treaties with the
United States, a very long history of treaties with this United
States. In the 1830s, when the U.S. Army rounded up all the
eastern tribes and forcibly removed us to the West, thousands
of our Cherokee people died, both young and old. We call that
event the Trail Where They Cried.
The Eastern Band's ancestors were the Cherokees who
resisted that Trail of Tears, who eventually found a way back
home to that Great Smokey Mountains in western North Carolina.
For centuries, the Cherokee people have fiercely protected our
identity--and this is all about protecting our identity. Many
of our members are fluent in the Cherokee language. We have a
unique culture that makes us different from any other group in
this world. And we still are here today, both proud and strong.
This long-defended identity, as you see here on the board,
is threatened by several groups, not just this group, but
several groups, who claim or have claimed to be Cherokee and
whose legitimacy is doubtful at best.
Mr. Chairman, there are several facts--and I've heard
several testimonies this morning, but I want to tell you what
the facts are. The fact is that the Lumbee group has pursued
this legislation at least 13 times over the last 100 years. And
Congress has rejected every attempt.
The fact is that they have sought recognition as four
different tribes. I want to refer you to this board over here,
where they have identified themselves as Croatans, the Siouan,
the Cheraw, and, folks, the Cherokees. For 40 years, from 1913
to 1953, these folks wanted to recognize themselves as the
Cherokees.
The fact is the experts say those claims don't make sense.
But those tribes represent three completely different
linguistic groups, as you see here on the board. And the
claimed ties to the historic Cheraw tribe are tenuous at best.
The facts are--and this Committee has recognized in a
published report--that the Lumbee have never had treaty
relations with this U.S. Government. They have never had a
reservation. They have never made a claim to the Indian Claims
Commission. They do not speak an Indian language. They had no
formal political organization until very recently. They possess
no traditional Indian customs, such as dances, songs, or tribal
religion. This is based on their expert's opinion.
Mr. Chairman, there is an established administrative
process to review these issues and make a fact-based decision.
Eleven years ago, this committee's report stated--and I quote--
``This committee must decide if it will continue to support an
equitable and standardized method of determining which Indian
groups should be recognized by this Federal Government.''
``Bypassing this administrative process can only serve to
undermine the recognition process. To encourage other groups
such as this group to circumvent that process and to place
recognition in an arena where emotion, as you have seen this
morning, influential sponsors, and the partisan nature of
Congress replacing merit and, most importantly, fact. For these
reasons, we strongly oppose the passage of this Lumbee
recognition bill.'' I end quote.
Mr. Chairman, I cannot have said it any better than what
this committee has already decided in the past many times. For
the same reasons, we strongly oppose the passage of H.R. 898
and we urge you to consider H.R. 1408, which would give the
Lumbee a fair chance to meet this established criteria at the
Office of Federal Acknowledgment.
If they can meet those standards, then they will be
recognized as a tribe and we will welcome them as a tribe, and
they will have all the benefits of that Federal recognition, as
many of our Federal tribes have today. If they cannot, then
this Congress has no business bypassing this administrative
process. I urge you to protect the integrity of Indian tribes
across this country and oppose this legislation.
Mr. Chairman, I thank you for the opportunity to be here,
and the opportunity to speak.
[The prepared statement of Mr. Hicks follows:]
Statement of Michell Hicks, Principal Chief,
The Eastern Band of Cherokee Indians
Chairman Pombo, Ranking Member Rahall, members of the House
Resources Committee, I am honored to be here to testify today before
this Committee to provide the views of the Eastern Band of Cherokee
Indians. Mr. Chairman, I want to thank you for your leadership in the
area of Indian affairs. Your advocacy for Indian people is well-known
in Indian Country and we appreciate the priority you have made of
addressing our needs.
The Eastern Band of Cherokee Indians, the Cherokee people, and
tribes across the United States feel strongly that Congress should not
enact this legislation. There are several reasons for this:
First, the integrity of the Eastern Band and other tribes with
living tribal languages and long-standing government-to-government
relations with the United States is undermined where politics and
emotion, rather than facts about tribal identity, dictate outcomes
regarding federal recognition. Consistent with the views of Eastern
Cherokee leaders since at least 1910, there are very serious questions
about the tribal identity of the Lumbees.
Second, the Department of the Interior's Office of Federal
Acknowledgment (OFA), while imperfect, is the only federal entity
equipped to make an informed, merits-based determination of Lumbee
tribal identity and recognition. Congress is not equipped to make these
decisions.
Third, Congress should be absolutely certain that the Lumbee group
meets the objective criteria at Interior before it enacts a bill that
could cost more than $682 million of taxpayer dollars over four years
and further decrease the funds existing tribes and Indians receive.
Congress cannot be confident in the merits of this bill. In fact, the
Lumbee group would have a difficult time meeting the established
federal acknowledgment criteria in a nonpolitical setting.
For these reasons, which I will explain in more detail, the Eastern
Band strongly opposes this bill.
THIS LEGISLATION IMPACTS THE INTEGRITY OF
EASTERN BAND AND OTHER ESTABLISHED TRIBES
Since before the coming of Europeans to this continent, the
Cherokee have lived in the southeastern part of what is now the United
States, in the states of North Carolina, South Carolina, Alabama,
Georgia, Kentucky, Tennessee, and Virginia. Through these years, the
Cherokee have faced unending threats to our very existence--including
the tragic Trail of Tears where more than 15,000 Cherokee Indians were
forcibly removed by the U.S. Army from their ancestral homelands to the
Indian Territory as part of the federal government's American Indian
Removal Policy. Thousands died. The Cherokee came to call the event
Nunahi-Duna-Dlo-Hilu-I or Trail Where They Cried. The Eastern Band of
Cherokee Indians are the descendants of those Cherokees that resisted
removal in the Great Smoky Mountains and escaped the Trail of Tears or
who were able to return to their homeland in the Smoky Mountains after
the Trail of Tears.
Yet, through all of this, the Cherokee people have fiercely
protected our separate identity as Cherokees. Many of our tribal
members are fluent in the Cherokee language. We have a separate culture
that makes us different than any group of people in the world.
Leadership of the Cherokee and the Cherokee people themselves, with
tenacity and determination, have fought to ensure that our way of life,
our beliefs, and our sovereignty will survive. And we are still here
today--proud and strong.
Like other tribes across the country, we hold in high regard the
long-standing government-to-government relationship the Eastern Band of
Cherokee Indians has with the United States. We are proud that the
United States has entered into treaties with the Cherokee that helped
shape the government-to-government relations with all tribes.
But today, like other tribes, we face a new threat to our separate
identity: groups of people who claim, or who have claimed Cherokee, or
other tribal affiliations whose legitimacy is doubtful at best.
Unfortunately, we believe this to be the case with this bill.
SERIOUS PROBLEMS WITH CLAIMED LUMBEE TRIBAL IDENTITY
If Congress recognizes groups whose tribal and individual identity
as Indians is seriously in doubt, it will dilute the government-to-
government relationships that existing federally recognized tribes have
with the United States. We strongly believe that this bill would
undermine the integrity of existing federally recognized Indian tribes
due to the real problems that the Lumbee have in demonstrating that it
is a tribe, including their inability to trace the genealogy of its
54,000 members to a historic tribe.
The Lumbee Have Self-Identified As Four Different Tribes
The Lumbee group seeking Congress's acknowledgment today has been
before the Congress on numerous occasions in the past, including 1899,
1910, 1911, 1913, 1924, 1932, 1933, 1955, 1988, 1989, 1991, 1993, and
now 2004. The tribal identity of the Lumbees, who have over the course
of history self-identified themselves as four different tribes before
Congress ``Croatan, Cherokee, Siouan, and now Cheraw--is highly in
question. These appellations do not correlate with each other.
Linguistically, the Croatan were Algonquian, the Cherokee Iroquoian,
and the Cheraw were Siouan. Thus, these disparate references themselves
implausibly covered three distinct and separate linguistic groups.
Moreover, referring to themselves as the ``Siouan Tribe'' did not make
sense because the term ``Siouan'' is simply a reference to a broad
generic linguistic classification that encompassed many distinct tribal
languages in North America, including Osage, Assiniboine, Dakota,
Lakota, Catawba, Hidatsa, Crow, Mandan, Ponca, Biloxi, and Quapaw, to
name a few.
The origin of the Lumbee name comes not from a historic tribe but
from a geographic location in the State of North Carolina, a place
along the Lumber River. The term ``Lumbee'' is a modern creation that
the group selected as its name in 1952. Over the years, the Congress
has heard from this same group many times seeking federal
acknowledgment. The Lumbee have self-identified themselves as any
number of vastly different linguistic groups in these efforts.
Lumbee's Self-Identification as ``Croatan'' Indians
For example, as the Lumbee's own hired expert Dr. Jack Campisi
stated in his testimony before the Senate Indian Affairs Committee on
September 17, 2003, the Lumbee sought federal services from the
Congress as Croatan Indians in the 1880's and early 1900's.
1
---------------------------------------------------------------------------
\1\ ``Testimony of Dr. Jack Campisi, in Support of S. 420, United
States Senate Committee on Indian Affairs'' (September 17, 2003) p. 6.
---------------------------------------------------------------------------
In 1993, this Committee's House Report contained the following
relating to the history of the Lumbee group, including its ``Croatan''
origins:
The story of how the progenitors of the Lumbee came to live in
this area of North Carolina is a multifarious one. In fact,
there are almost as many theories as there are theorists. Up
until the 1920's, the most persistent tradition among the
Indians in Robeson County was that they were descended
primarily from an Iroquoian group called the Croatans. This
theory, though highly conjectural, is as follows. In 1585, Sir
Walter Raleigh established an English colony under Gov. John
White on Roanoke Island in what later became North Carolina. In
August of that year, White departed for England for supplies,
but was prevented from returning to Roanoke for 2 years by a
variety of circumstances. When he finally arrived at the
colony, however, he found the settlement deserted; no physical
trace of the colonists was found.
The only clue to their whereabouts were the letters ``C.R.O.''
and the word ``Croatoan'' carved in a tree. From this it was
surmised that the colonists fled Roanoke for some reason, and
removed to the nearby island of Croatoan which was inhabited by
a friendly Indian tribe. There, according to the theory, they
intermarried with the Indians, and the tribe eventually
migrated to the southwest to the area of present-day Robeson
County. The theory is lent some credence by reports of early
18th century settlers in the area of the Lumber River who noted
finding a large group of Indians--some with marked Caucasian
features such as grey-blue eyes ``speaking English, tilling the
soil, ``and practicing the arts of civilized life.'' In
addition, many of the surnames of Indians resident in the
county match those of Roanoke colonists. 2
---------------------------------------------------------------------------
\2\ H.R. Rep. No. 103-290, 103rd Cong., 1st Sess. at 179 (1993).
---------------------------------------------------------------------------
Lumbee's Self-Identification as ``Cherokee'' Indians
In the State of North Carolina, the Lumbee group sought recognition
from the North Carolina Legislature in 1913 as the ``Cherokee Indians
of Robeson County.'' This legislation was passed, despite the Eastern
Band's opposition, and the group was recognized in North Carolina as
``Cherokee'' Indians. That continued for 40 years until 1953 when the
North Carolina Legislature, at the Lumbee group's request, passed
legislation recognizing them as the ``Lumbee'' Indians instead of as
the ``Cherokee'' Indians.
As the Lumbee's expert Dr. Campisi stated, after World War I, this
Lumbee group sought legislation in Congress for recognition as ``the
Cherokee Indians of Robeson and adjoining counties.'' Specifically, in
1924, Dr. Campisi noted that the now-called Lumbee group had
legislation introduced in the U.S. Senate that would have recognized
them as ``Cherokee'' Indians. However, the Commissioner of Indian
Affairs Charles H. Burke opposed the legislation and it failed to pass.
Dr. Campisi went on to state that the Lumbee group renewed their
efforts in 1932 and had a bill introduced in the Senate that would have
recognized them as ``the Cherokee Indians,'' but this effort failed
also. 3 The Eastern Band has, since the early 1900's when
the Lumbee group sought formal recognition as Cherokee, consistently
and strongly opposed these efforts of the Lumbees to be recognized as a
tribe.
---------------------------------------------------------------------------
\3\ Id. Ms. Arlinda Locklear, in her testimony before the Senate
Indian Affairs Committee last year, noted that the Lumbee group claimed
that they were Cherokee and sought federal legislation to be recognized
as Cherokees. ``Testimony of Arlinda Locklear, Patton Boggs LLP, Of
Counsel for the Lumbee Tribe of North Carolina in Support of S. 420
United States Senate Committee on Indian Affairs'' (September 17, 2003)
p. 4.
---------------------------------------------------------------------------
Lumbee's Self-Identification as ``Siouan'' Indians
According to the Lumbee, they sought federal recognition as
``Siouan'' Indians in 1924. Further, in the 1930's, for purposes of the
Indian Reorganization Act, the Lumbees self-designated themselves as
the ``Siouan Indian Community of Lumber River.'' 4 As stated
above, the term ``Siouan'' is a reference to a generic linguistic
classification that is spoken by many tribes in North America and is
not a term that describes a distinct historical tribe.
---------------------------------------------------------------------------
\4\ Id. at 9.
---------------------------------------------------------------------------
It was not until 1952 that the Lumbees decided to refer to
themselves as ``Lumbee'' based upon their geographic location next to
the Lumber River. In 1956, Congress, at the request of the Lumbees,
passed legislation commemorating their name change. 5
---------------------------------------------------------------------------
\5\ Id. at 9-10.
---------------------------------------------------------------------------
The Lumbees' Current Efforts to Link Themselves to the Cheraw Tribe Are
Tenuous
The federal acknowledgment criteria require that the membership of
a petitioning group consist of ``individuals who descend from a
historical Indian tribe or from historical Indian tribes which combined
and functioned as a single autonomous political entity.'' 6
The regulations define ``historical'' in this context as ``dating from
first sustained contact with non-Indians.'' 7 The origin and
ties to a historical tribe have been the subject of uncertainty not
only among experts in the area but also the Lumbee themselves.
---------------------------------------------------------------------------
\6\ 25 C.F.R. Sec. 83.7(e).
\7\ Id. at 83.1.
---------------------------------------------------------------------------
Congress in the 1956 Lumbee Act went far to avoid a historical
tribal designation of the ``Lumbee'' Indians, reiterating the ``claim''
of the Lumbee to unnamed tribes. The 1956 Lumbee Act states, ``The
Indians now residing in Robeson and adjoining counties of North
Carolina...and claiming joint descent from remnants from early American
colonists and certain tribes of Indians originally inhabiting the
coastal region of North Carolina, shall, from and after the
ratification of this Act, be known and designated as Lumbee Indians of
North Carolina....'' 70 Stat. 254, 255 (June 7, 1956).
The Lumbee have often repeated the mantra that the Lumbee Act
``recognized'' them as a tribe on one hand and ``terminated'' them on
the other. The language of the statute itself, court interpretation,
8 and the American Law Division of the Library of Congress
belie this claim. 9 The Lumbee Act only recognizes
individual Indians, not a tribe. Congress certainly knew how to
expressly recognize an Indian tribe and avoided doing so here.
10 Also, in 1956, Congress terminated four tribes: the Lower
Lake Rancheria, Wiandotte, Peoria, and Ottawa. So, Congress knew also
how to expressly terminate tribes at the time.
---------------------------------------------------------------------------
\8\ In Maynor v. Morton, the United States Court of Appeals for the
District of Columbia stated that, ``the limited purpose of the
legislation appears to be to designate this group of Indians as
``Lumbee Indians.'' The court also noted that the Act was ``a simple
statute granting the name ``Lumbee Indian'' to a group of Indians,
which hitherto had not had such designation legally.'' Maynor v.
Morton, 510 F.2d 1255 (D.C. Cir. 1975).
\9\ In a 1988 opinion, the Library of Congress concluded ``that the
1956 statute does not provide recognition of the Lumbee Indians as a
political entity.''
\10\ The Lumbee also argue that they are similarly situated to the
Ysleta de Sur Pueblo, also know as the Tiwa Tribe, a tribe whose
government-to-government relationship was terminated by Congress, then
later restored. The Lumbee group, by contrast, has never had a
government-to-government relationship with the United States. The
language of the Tiwa Act, furthermore, specifically refers to the Tiwa
as a tribe. The Act of Dec. 12, 1968, 82 Stat. 93.
---------------------------------------------------------------------------
Experts at the Bureau of Indian Affairs have testified that the
Lumbee ties to the Cheraw Tribe are tenuous. On August 1, 1991,
Director of the Office of Tribal Services Ronal Eden testified on
behalf of the Administration regarding federal legislation that would
Congressionally acknowledge the Lumbee. Regarding the Lumbee petition
for federal recognition before the agency, the Director testified to a
``major deficiency'' that ``the Lumbee have not documented their
descent from a historic tribe.'' 11
---------------------------------------------------------------------------
\11\ Statement of Ronal Eden, Director, Office of Tribal Services,
Bureau of Indian Affairs, Department of the Interior, Before the Joint
Hearing of the Select Committee on Indian Affairs, United States
Senate, and the Interior and Insular Affairs Committee, United States
House of Representatives, On S. 1036 and H.R. 1426 (August 1, 1991) p.
3-5.
---------------------------------------------------------------------------
The testimony also stated that the 18th century documents used by
Lumbee to support its claim that it is primarily descended from a
community of Cheraws living on Drowning Creek in North Carolina in the
1730's needed extensive analysis corroborated by other documentation.
12
---------------------------------------------------------------------------
\12\ Id.
---------------------------------------------------------------------------
In his September 17, 2003, testimony before the Senate Indian
Affairs Committee, Lumbee expert Jack Campisi relies on a report of Dr.
John R. Swanton of the Bureau of Ethnology for concluding ``in the
1930s that the Lumbees are descended predominantly Cheraw Indians.''
13 The House Report specifically refutes this claim, stating
that Swanton chose ``Cheraw'' rather than another tribal name he
identified--``Keyauwee''--because the Keyauwee name was not well-known.
``In other words, the choice of the Cheraw was apparently made for
reasons of academic ease rather than historical reality.''
---------------------------------------------------------------------------
\13\ Campisi Testimony at 21.
---------------------------------------------------------------------------
Furthermore, the head of the BIA's acknowledgment process
questioned the adequacy of the underlying proof of Cheraw descent. He
testified in 1989 that:
The Lumbee petition ... claims to link the group to the Cheraw
Indians. The documents presented in the petition do not support
[this] theory. ... These documents have been misinterpreted in
the Lumbee petition. Their real meanings have more to do with
the colonial history of North and South Carolina than with the
existence of any specific tribal group in the area in which the
modern Lumbee live.
Counsel to the Lumbee Arlinda Locklear in her testimony before the
Senate Indian Affairs Committee admits that these concerns continue
today. ``Department staff that administers the administrative
acknowledgment process have expressed some concern about the absence of
a genealogical connection between the modern day Lumbee Tribe and the
historic Cheraw Tribe.'' 14
---------------------------------------------------------------------------
\14\ ``Testimony of Arlinda Locklear, Patton Boggs LLP, Of Counsel
for the Lumbee Tribe of North Carolina in Support of S. 420 United
States Senate Committee on Indian Affairs'' (September 17, 2003) p. 4
fn. 1.
---------------------------------------------------------------------------
Claimed Lumbee Membership Not Tied to Cheraw Individuals
The various documents on which the Lumbee membership list is based
similarly cast doubt as to the ability of the Lumbee to meet the
acknowledgment criteria. The Lumbee claim 54,000 enrolled members who
are descended from anyone identifying as ``Indian'' in five North
Carolina counties and two South Carolina counties in either the 1900 or
1910 federal census. The Lumbee Constitution refers to these census
lists as the ``Source Documents.'' Yet the individuals on these lists
cannot be specifically identified and verified as Cheraw Indians. In
fact, these individuals cannot be identified as belonging to any tribe
whatsoever. These are lists of people who self-identified or were
identified by the census as ``Indian.''
Mr. Chairman, members of this Committee have recognized the
weaknesses and complexities in the Lumbee group's claim to tribal
recognition in the past:
The Lumbee...have never had treaty relations with the United
States, a reservation, or a claim before the Indian Claims
Commission; they do not speak an Indian language; they have had
no formal political organization until recently; and they
possess no autochthonous ``Indian'' customs or cultural
appurtenance such as dances, songs, or tribal religion. One of
the groups consultant anthropologists, Dr. Jack Campisi, noted
this lack of Indian cultural appurtenances in a hearing
colloquy with then-Congressman Ben Nighthorse Campbell:
Mr. Campbell: Do [the Lumbee] have a spoken language...?
Dr. Campisi: No.
Mr. Campbell: Do they have distinct cultural characteristics
such as songs, dances and religious beliefs and so on? ... Do
the Lumbees have that?
Dr. Campisi: No. Those things were gone before the end of the
18th Century.
This absence of cultural appurtenances in part identify the Lumbee
as part of what sociologist Brewton Berry has termed the ``marginal
Indian groups.'' As Berry notes:
These are communities that hold no reservation land, speak no
Indian language, and observe no distinctive Indian customs.
Although it is difficult to establish a firm historical Indian
ancestry for them, their members often display physical
features that are decidedly Indian. Because they bear no other
historic tribal names, they often emphasize a Cherokee
ancestry.
These characteristics ... point out that this is a case replete
with out-of-the-ordinary complexities which require more than just a
simple one-page staff memo to understand fully. Needless to say, if
those [Members of Congress] charged with the day-to-day oversight of
Indian affairs do not have the necessary expertise--or even knowledge--
in this area, how will the balance of our Members appropriately
exercise those judgments as they will be called upon to do when this
legislation reaches the floor? 15
---------------------------------------------------------------------------
\15\ H.R. Rep. No. 103-290, 103rd Cong., 1st Sess. at 186-87
(1993).
---------------------------------------------------------------------------
INTERIOR'S OFFICE OF FEDERAL ACKNOWLEDGMENT IS THE PROPER FORUM FOR
DECIDING WHETHER THE LUMBEE SHOULD BE FEDERALLY RECOGNIZED
The Department of the Interior through the Office of Federal
Acknowledgment (OFA) has an established uniform administrative process
with objective criteria that can make exactly the kind of substantive,
merits-based determinations that the Congress is unequipped to make.
While the OFA is not perfect and needs additional funds to do the job
it is supposed to do, it should not be abandoned, but fixed. To allow
the Lumbees to circumvent that process would be to abandon the merits,
which again we believe the Lumbees have significant problems with, in
favor of old-fashioned politics.
Mr. Chairman, members of the Resources Committee have noted the
harm that would come to long-standing federally recognized tribes from
legislation like this:
Bypassing the [administrative] process not only ignores the
problem [with that process], but is unfair to all of the
recognized tribes. There exists a formal government-to-
government relationship between the recognized tribes and the
United States. If Congress creates tribes at will, without
meaningful uniform criteria or substantial corroborated
evidence that the group is indeed a tribe, then we dilute and
weaken that relationship. 16
---------------------------------------------------------------------------
\16\ Id. at 202.
---------------------------------------------------------------------------
Members of this Committee have acknowledged that a large number of
tribes and tribal organizations supported strict adherence to a
systematic administrative procedure, including:
[T]ribes in twelve states, from regional intertribal
organizations representing all the tribes of the Pacific
Northwest, Montana and Wyoming, the United South and Eastern
Tribes (representing all the tribes from Maine to Florida and
west to Louisiana), all of the ten southwestern Pueblo tribes,
and twenty-five of the twenty-six tribes in Arizona.
17
---------------------------------------------------------------------------
\17\ Id. at 202-03.
---------------------------------------------------------------------------
Moreover, while the Lumbee have argued that the process is unfair,
their bill, contrary to their argument, provides that the other North
Carolina groups, who the Solicitor's office at Interior has also
determined are barred from accessing OFA under the 1956 Lumbee Act,
would be authorized to submit petitions to OFA for federal
acknowledgment. If it is fair for these other groups to go through the
OFA process, then it should be fair for Lumbee also.
When this same basic legislation came up 11 years ago, members of
this Committee argued strongly that the Lumbee should be required to
follow the administrative process:
[T]he argument that the Lumbee should be allowed to bypass the
process because it is too cumbersome and backlogged is ...
specious. While the BIA recognition process is in need of
repair, it is not as decrepit as the majority would have us
believe. There is only a backlog of nine petitions, not the 120
cases often cited; and while we concede that the process is
imperfect, the most rational solution is to fix it. Bypassing
the process only ignores the problem, undermines the role of
the BIA, and is unfair to both recognized and unrecognized
tribes. 18
---------------------------------------------------------------------------
\18\ Id. at 206.
---------------------------------------------------------------------------
HARM TO EXISTING TRIBES AND WASTE OF TAXPAYER MONEY
The impact on appropriations to other Indian tribes would be
unprecedented in the history of federal acknowledgment. The
Congressional Budget Office has determined that, based on an estimate
of 34,000 Lumbees, that the cost of this legislation would be $430
million over four years. Yet the Lumbees claim approximately 54,000
members. Based upon the Congressional Budget Office's estimate and the
54,000 members claimed by Lumbee, the real cost of this bill would be
over $682 million. Furthermore, the Bureau of Indian Affairs announced
only a few days ago that the budget for Indian programs would take
another cut of 2.7% ($70 million).
Accordingly, this bill would have a huge, negative impact on the
budgets of Bureau of Indian Affairs and the Indian Health Service and
would decrease even further the badly needed funds Indian people
receive as a result of promises and trust obligations of the United
States to Indians and tribes. This Committee and the Congress should
not dive into support for this legislation for emotional or political
reasons, particularly without being absolutely certain that this group
constitutes an Indian tribe in accordance with the objective criteria
at the Office of Federal Acknowledgment.
CONCLUSION
If this Committee and the Congress chose to pass this legislation,
the consequences will be dramatic for existing federally recognized
tribes.
First and foremost, politics will have won a decided victory over
sound policy. The notion of ``taking the politics out of federal
recognition'' will have suffered its most severe setback in history.
Second, with federal acknowledgment comes the ability of a group to
engage in serious activities associated with sovereign status, such as
the ability to tax and enjoy certain tax advantages, the ability to
exercise civil jurisdiction over non-Indians as well as Indians, and
the right to engage in gaming. Enacting legislation like this only arms
those who seek to erode sovereign rights with evidence that some of
those with such rights were haphazardly afforded them.
Chairman Pombo, Ranking Member Rahall, and other distinguished
members of the Committee, the Eastern Band of Cherokee Indians would
welcome the Lumbees into the family of federally recognized tribes if
they can successfully make it through the administrative process at the
Department of the Interior. Absent their meeting the objective criteria
at Interior, with complete vetting of their claimed tribal identity,
membership lists, and other requirements, we believe that passing this
legislation would be a serious mistake, with politics winning out over
sound policy.
In 1993, Mr. Chairman, members of this Committee said:
This Committee must decide if it will continue to support the
utilization of an equitable and standardized method of
determining which Indian groups should be recognized by the
federal government, or if it will return us to the pre-1978
days of piecemeal and arbitrary recognition through individual
bills such as [the Lumbee recognition bill under consideration
in 1993.] ... [Such an arbitrary approach] can only serve to
undermine further an already beleaguered recognition process,
to encourage other groups to circumvent that process, and to
place recognition in an arena where emotional arguments,
influential sponsors, and the partisan nature of Congress
replace merit and fact. For these reasons we strongly oppose
passage of [the Lumbee recognition bill]. 19
---------------------------------------------------------------------------
\19\ Id. at 207.
---------------------------------------------------------------------------
For those same reasons, we strongly oppose the passage of H.R. 898.
If you determine that any legislation is needed, we urge you to
consider H.R. 1408, which would give the Lumbee a fair opportunity to
meet the equitable and standardized requirements established in the
administrative process.
______
The Chairman. Thank you.
[Applause.]
The Chairman. I have to ask the members of the audience
that it is against House rules for you to show favor or
displeasure of any of the testimony that is given this morning.
This is a congressional hearing and we have to try to maintain
decorum in the room. So thank you.
Mr. Olsen, we have heard about the 1956 Act. In going back
and reviewing that, in my mind it's confusing at best as to
what exactly Congress was doing. At one point it appears to
recognize but also terminate the Lumbee Tribe.
What is your interpretation of it? How do you handle that?
Mr. Olsen. Well, I'm not--I think there are a couple of
ways to look at it. I'm guessing you'll probably hear more
about it from folks who know a lot more about it than I. But I
think there are at least a couple of ways to look at it.
One of those is to look at the '56 Act as a law that
recognized and then terminated the Lumbee in one fell swoop, as
we've heard. I think another way to look at it is a law that
did nothing more than recognize or name a group of individual
people as Lumbee Indians. I think that's a debate that I have
heard.
I am not prepared at this point to give any, you know, what
the Administration's position is on that particular Act. But I
know that those are two competing arguments.
The Chairman. For the benefit of the Committee, could you
provide for the record an outline of what the Administration's
position is on that Act and what it means?
Mr. Olsen. Certainly.
The Chairman. I think as we move forward in deliberations
on this legislation, I think it's important for us to
understand, from an historical perspective, what Congress
attempted to do.
Mr. Olsen. If I may, I can tell you it has been interpreted
as, you know--first of all, it certainly has been interpreted--
I mean, it clearly says that the Lumbee are not entitled to the
laws, statutes, programs, et cetera, that federally recognized
tribes would be entitled to, and that has been interpreted to
mean that the tribe, that the Lumbee are not able to go through
the acknowledgment process that, I think, there was reference
made to a Solicitor's opinion which sets that forth.
But in terms of, you know, more specific sort of whether we
view it as termination versus just a recognition of a group of
people, we can--we will certainly go to work and put something
together.
The Chairman. I would appreciate it as we move forward.
The Chairman. Has the Department estimated what the cost of
this legislation would be?
Mr. Olsen. I don't--let me first say that the cost of
recognition is not something that we look at as one of the
criteria for acknowledging a group.
The Chairman. Nor should you. I'm just wondering if there
is a cost estimate.
Mr. Olsen. But I know that there is an estimate that was
put together by the Congressional Budget Office, and I can tell
you what that is. Based on, I think, a membership of 36,000,
the cost was projected, I think, at something along the lines
of $430 million over the course of 4 years.
The Chairman. Has there ever been a determination by the
BIA on whether the Lumbees meet that criteria, the seven
criteria in the Federal acknowledgment process?
Mr. Olsen. One of the issues surrounding the '56 Act is
also not only that the Lumbee are not allowed to--have been
precluded basically from going through the acknowledgment
process, but there have been partial submissions, I guess,
going toward the seven criteria, but the Department has been,
through interpretation of the '56 Act, precluded from
considering those, basically considering the petitions.
Lee may have some more specific information on, you know,
the technical--
Mr. Fleming. My understanding is that there were
submissions, and as the professional staff began the technical
assistance reviews, that the genealogy and the history were
reviewed for that technical assistance review, but then the
Solicitor's opinion in the late 1980s was issued, stating that
we were precluded from going any further. That's my
understanding.
The Chairman. So the BIA has never actually done a complete
determination on it?
Mr. Olsen. That is correct.
The Chairman. Thank you.
Mr. Rahall.
Mr. Rahall. Thank you, Mr. Chairman.
I have a question for Chief Hicks. I just hope you will
help me understand this. It appears from your testimony that
one of your concerns over Federal recognition for the Lumbees
is that their membership has descended from several different
tribes; is that correct?
Mr. Hicks. That is correct. They are self-identified.
Mr. Rahall. I'm trying to understand why this is so far out
and so different, considering the federally recognized tribes
where already precedent has been set. I could go through a
whole list here, where there's been different memberships of
federally recognized tribes in the past.
Why would you base your opposition on the Lumbees being
recognized because they were comprised of different tribes,
when there have been many other such Federal recognitions?
Mr. Hicks. Sir, as I pointed out in my testimony, the issue
is about identity. Our tribe has traditionally over several
years followed the issue of identity.
As I point out here on this board again, these folks have
come through trying to identify themselves as several different
tribes, including the Cherokees, for 40 years. Sir, that's the
issue. It's an identity issue. It's fundamentals.
Mr. Rahall. And it's different from other Federal
recognitions?
Mr. Hicks. Sir, I'm not sure in regard to--If you want to
give me details of your question, I would love to give you an
answer.
Mr. Rahall. Sure. I will go through the list. Here are
federally recognized tribes such as the Grand Traverse Band of
Ottawa and Chippewa, the Salish and Kootenai Tribes of the
Flathead Reservation, the Shoshone and Bannock Tribes of Fort
Hall Reservation, the Washoe and Pauite Indians of the Reno-
Sparks Colony of Nevada, and two USET tribes, the Tunica-Biloxi
Tribe and the Alabama Coushatta Tribe.
Mr. Hicks. Sir, to my understanding, this is the first time
of the issue with the Lumbees. This issue has not been done for
other tribes. If you take a look at the recognition process, I
think the majority of the other tribes--all the other tribes,
excuse me--were land-based. There were land issues. You are
looking at a distinctly separate issue here.
Again, I would love to do the research on those tribes that
you just gave me.
Mr. Rahall. Let me ask you, according to the Encyclopedia
of North American Indians, the Eastern Band of Cherokee were
recognized by the State of North Carolina in the late 19th
century, much like the Lumbees. I also understand that the
Eastern Band of Cherokee also obtained Federal recognition
pursuant to a Federal statute. Is that correct?
Mr. Hicks. Sir, we've had treaties with the United States
for several hundred years. There is no question about the
identity of the Cherokee Indians.
Mr. Rahall. But was it legislation that recognized the
Eastern Band of Cherokee?
Mr. Hicks. There was legislation, I believe, in 1868 to
separate the Eastern and Western Band of Cherokee Indians.
Mr. Rahall. So the answer to my question is yes?
Mr. Hicks. Due to the Western Band were in Oklahoma. It is
simply geographic, sir.
Mr. Rahall. So the answer to my question is yes, that you
were recognized pursuant to Federal statute?
Mr. Hicks. Yes, sir.
Mr. Rahall. Mr. Olsen, you testified that Congress may only
recognize Lumbee Indians as a tribe pursuant to its Commerce
Clause authority ``if a court could decide that Congress had
not acted arbitrarily in implicitly or explicitly finding that
Lumbee Indians constitute a distinct Indian community.''
Is it the Administration's position that a decision by
Congress to recognize the group as an Indian tribe is subject
to judicial review based on compliance with some constitutional
standard?
Mr. Olsen. The statement there was made, basically that
Congress should not and certainly would not act in a manner
that would be arbitrary and capricious. I think that Congress
would do its homework and look at the evidence that would be
presented before it on the history and genealogy of the Lumbee
Tribe.
I mean, we say that Congress has the authority over or to
regulate Indian affairs. Congress has the authority to do that
from a subject matter position and certainly cannot and would
not do anything to limit, say, equal protection, for example,
of any Indian group. And so the statement in the testimony
there was intended to basically reiterate the fact that
Congress presumably would do its homework and wouldn't and
shouldn't recognize a group that is not--has not provided some
evidence for recognition.
Mr. Rahall. There is no case law in support of that?
Mr. Olsen. I am not aware of any case law, no. I mean,
certainly not.
Mr. Rahall. Thank you, Mr. Chairman.
The Chairman. Mr. Jones.
Mr. Jones. Mr. Chairman, thank you very much.
First I would like to ask Chief Hicks to repeat your
testimony as it relates to the language of the tribe, yours
versus the Lumbee's.
Mr. Hicks. Well, the Cherokees have an established
language, and based on the testimony of the expert for the
Lumbees, I understand they have no language.
Mr. Jones. Mr. Chairman, I did ask unanimous consent to
place before the members the poster that the Chief has been
pointing to. You have that in a green handout, if you would
like to look further at the points he was making.
Mr. Olsen, let me ask you--and you might or might not know
this--and if you don't, I would ask you to please submit the
information for the record, with the permission of the Chairman
and Committee.
If we have over 320 tribes who have been recognized by the
Federal Government, could you tell me the percentage of the 320
that have applied and went through the process to be permitted
to gamble?
Mr. Olsen. Boy, that's not something I know off the top of
my head.
Mr. Jones. If you could, whether they were approved or not,
I would like to know, and I would like for the Committee to
know, how many have applied, whether they were approved or not
approved. If you could get that for the record, I would
appreciate it.
Mr. Olsen. OK. I just want to make sure that I understand.
It's tribes who have been federally recognized--
Mr. Jones. Those that have been recognized, since the time
of their recognition, have applied through the process to be
approved to have gaming, what I call gambling on the
reservation.
Mr. Olsen. OK.
Mr. Jones. Also, Mr. Chairman, I have an article, if I
could submit it for the record, that was in the paper in
eastern North Carolina last Sunday. The title is, ``Casino
Conflicts, Growth of Indian Gaming Facilities Escalates Fights
over Tribal Membership.''
Mr. Chairman, I believe you're the only one on the dais
today from California, and this article was written about the
tribes in California. Very quickly, it says ``Tribes dispute
membership. An informal Associated Press survey found that
1,160 people in 14 California tribes are fighting over tribal
status. Tribal membership could mean thousands of dollars a
year in casino revenues.'' Here is a list of the major disputed
cases, and there must be at least 20 in the State of
California.
I mention that because, again, I think the process, as Mr.
Taylor is proposing in his legislation--there is a problem with
the process, no question about it. The Lumbees have every right
to go through the process and expect in a certain length of
time to get a yea or nay. I think that's what this Committee
should do instead of trying to pass a private bill that--
seriously, Mr. Chairman, I don't know who represents most of
these tribes, but if this bill should pass, believe me, the
Member of Congress from that area is going to be called, saying
``You've done it for one, why can't you do it for me?'' That's
what is going to be forthcoming.
My biggest concern and opposition is, quite frankly, the
gambling part of this. If the McIntyre bill said that on this
day certain--which I don't think can be done legislatively--
there would be no opportunity to have gambling on I-95, then I
probably would not have the opposition that I have today. But I
would like to submit that for the record, if I could, for the
members to have an opportunity to read this article.
The Chairman. Without objection, it will be included.
[The Daily Reflector Insight article dated March 28, 2004,
follows:]
[GRAPHIC] [TIFF OMITTED] T2851.005
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Mr. Jones. Thank you.
Mr. Chairman, the only other comment I would like to make
is that I had an opportunity that was very special. I am very
strong in my faith, and I had the Cherokees to visit with me
long before this issue came about. Let me say this dealt with
Congressman Taylor about a land swap that came before this
Committee as well.
Let me tell you, I had a prayer said to me in the Cherokee
language. It was extremely special, and I will never forget it.
So I understand the importance of identification. I think it is
extremely important, whether you are from the Eastern Band of
Cherokee or the Lumbees, identification is like heritage. You
cannot dispute it. It is extremely important.
With that, Mr. Chairman, I yield back my time.
The Chairman. Thank you.
Further questions? Mr. Kildee.
Mr. Kildee. Thank you, Mr. Chairman.
This is not an easy hearing for me. It has much of the
aspect of being asked which one of your friends or brothers do
you love the most. It is very, very difficult because I have
enormous respect for the Eastern Band of Cherokee, and I have
been working with the Lumbees for my 28 years in Congress.
Mr. Olsen, you mentioned that the cost should not be a
factor in determining the recognition of a tribe, and I
certainly am encouraged to hear that. We get various figures on
what the cost might be over a 1-year period or a 4-year period.
The cost, when we compare other spending around here, is not
all that great if we really treated all Indians in this country
as they should be treated.
I have been working on Indian matters now for 28 years here
in Congress and 12 years in the State Legislature. My dad
taught me years ago that the Indians had always been treated
unfairly. But the costs, we are so chintzy and so cheap, and so
cheating, when it comes to spending money for our first
Americans. The figure of $430 million was given.
You know, about three or 4 months ago, we spent about $87
billion, billion, to help rebuild Iraq, to help rebuild the
Sunis and the Shiites and the Kurds. It would seem to me that a
government that can spend $87 billion over in Iraq to help
rebuild that country could find enough money to take care of
all the Indians in this country, including some of the Indians
in my State who are still waiting, even though they've had
their recognition, waiting for some sharing of that trust
responsibility with them. So Congress has to set those
priorities around here and I am very happy, Mr. Olsen, that you
recognize that cost should not be a factor.
Again, as I say, I think everyone in this room knows that I
have tried to serve all the Indians in this country, and when I
leave this mortal coil, if I have accomplished something to
move forward justice for the Indians, I will consider myself a
happy and successful person.
Let me ask you this. What benefit accrued to the Lumbees by
the 1956 Act of Congress?
Mr. Olsen. Well, that's a very interesting question. I
guess--
Mr. Kildee. I have thought that for years.
Mr. Olsen. I guess it depends on how you view the '56 Act.
Some would argue that there was absolutely no benefit
whatsoever. Others, I guess, would say that a group that was
looking for identification with a name was given the identity
and given a particular name.
Mr. Kildee. It seems in the 1956 Act Congress was very good
at sending ``get well'' cards, when very often what the person
needs is a Blue Cross card. I think in 1956 we sent the Lumbees
a get well card. We paid a quarter for it, sent it, and said,
``Have a good day.'' But I don't think it really did anything
for the Lumbees.
Has it affected the BIA relationship with the Lumbees?
Mr. Olsen. No. Again, they are not eligible for services,
so we don't have that relationship.
Mr. Kildee. So we sent them a nice note, saying, ``Have a
good day.''
Mr. Olsen. I'm sorry?
Mr. Kildee. We sent them a nice note, saying. ``Have a good
day.''
Mr. Olsen. I guess that's one way to characterize it, sure.
Mr. Kildee. Thank you, Mr. Chairman. I yield back the
balance of my time.
Mr. Hicks. Mr. Chairman, can I respond to that question,
also?
The Chairman. Absolutely.
Mr. Hicks. Congressman Kildee, I think there's a
distinctive difference in what was recognized in the 1956 Act.
The Eastern Band of Cherokees are a tribe. These individuals at
this point in time are a group. That's the difference in the
Act.
Mr. Kildee. I understand, and I have worked with you and I
have worked with your tribe. I have enormous respect for your
tribe. I know, as the chief executive of your tribe, that you
have a responsibility to your tribe. I hold you in respect for
doing that.
Mr. Hicks. Thank you, sir.
Mr. Kildee. Thank you.
The Chairman. Any further questions? Mr. Faleomavaega.
Mr. Faleomavaega. Thank you, Mr. Chairman.
I express the same sentiments that the gentleman from
Michigan has indicated. There is a sense of sadness, a sense of
not only frustration but really to see that one Native American
describing another Native American as a non-Native American.
That really saddens me.
But in the process, I want to ask Mr. Olsen, were you in
private practice before you joined the Department of Interior?
Mr. Olsen. Yes, sir, I was. Actually--well, prior to
working for the Resources Committee, for the Chairman, yes, I
was in private practice.
Mr. Faleomavaega. Do you specialize in Indian law?
Mr. Olsen. No, sir, I don't. I did not at the time, no.
Mr. Faleomavaega. What is your understanding of the Lumbee
Act of 1956? Have you had a chance to review the congressional
report?
Mr. Olsen. I have looked at some legislative history, yes.
Mr. Faleomavaega. What is your understanding of that Act of
1956?
Mr. Olsen. Based on the legislative history that I have
seen, there was discussion, a series of colloquies, that--
again, what I have read seemed to indicate that the Act of 1956
was intended to name the group and not provide any sort of
service.
Mr. Faleomavaega. Wasn't the congressional policy, at least
to my understanding in reading the congressional report, was
simply because we didn't have enough money to spread around to
the different tribes? So we recognized the Lumbees as Indians
in 1956, but we put that caveat in there, saying that you're
recognized as Indians but we can't give you the Federal
assistance programs because--I think at that time there was a
limitation on the amount that could be given to other tribes as
well.
Wasn't that the reason why we put that caveat in there,
that we recognized the Lumbees as Indians but, sorry, we can't
give it to you because we don't have enough money to go around?
Wasn't that the real reason behind it?
Mr. Olsen. Yes, and I guess certainly it's important to
keep in mind as well that at the time Congress' policy was one
of termination. I mean, we were hip deep in the fifties when
termination was the way Congress was moving forward.
Mr. Faleomavaega. Yes, termination, but the fact is that
Congress did officially recognize the Lumbee as an Indian
tribe, even though we did not give them the full benefits as a
recognized tribe.
Mr. Olsen. I can't say, to be perfectly honest, that the
1956 Act recognized the Lumbee as an Indian tribe. I mean, I
think there are a couple of sides to that argument. I am not
speaking for the Administration; I'm not in a position, and
certainly we can, going back to what Mr. Pombo has asked, we
can hopefully provide some analysis on that.
Mr. Faleomavaega. I wasn't quite clear. What exactly is the
Department's position on this proposed bill? I wasn't quite
clear from your statement exactly what is the Department's
position. What is the Administration's position on this bill?
Mr. Olsen. The Administration's position on this is that,
number one, as you are aware, we have a process. We have
respect for the process, and though as some have said, some
have called it flawed, it does provide for uniform
decisionmaking.
However, we also recognize that the Lumbee are in a unique
situation and, at the very least, are entitled to have an
opportunity to go through the acknowledgment process. We also
recognize that Congress has the authority to enact legislation
to recognize, or to grant Federal acknowledgment to a group, to
an Indian tribe.
Mr. Faleomavaega. I appreciate that.
Chief Hicks, how many are in the Eastern Band of Cherokee
in North Carolina? What's the population of your tribe?
Mr. Hicks. We're over 13,000.
Mr. Faleomavaega. Is there also a Western Band of Cherokee
in North Carolina?
Mr. Hicks. Yes, sir. There is also the Duwa Band in
Oklahoma.
Mr. Faleomavaega. And they are separate from the Eastern
Band?
Mr. Hicks. Yes, sir.
Mr. Faleomavaega. You mentioned in your testimony that
you're opposed to the bill because of the financial costs to
the U.S. Government. Am I correct in my reading of this in your
statement correctly?
Mr. Hicks. That's part of the argument, yes, sir,
identified as the third item.
Mr. Faleomavaega. Do you find that position somewhat
disingenuous? Because of financial costs, is that the only
reason? Shouldn't that really be the prerogative of the
Congress and the U.S. Government to be in a position to say
whether or not we have the financial means to provide for this
tribe if it should be recognized as a recognized tribe?
Mr. Hicks. Sir, when you live in the shoes of an Indian,
and you understand the funding appropriations--as an example,
the Indian Health Service across the Nation is funded at less
than 60 percent of the need. That issue is a very serious
matter.
Mr. Faleomavaega. I also recognize the fact that your tribe
is doing very well in the gaming operations in North Carolina,
which is fine. This is what we're all trying to seek, to be
successful entrepreneurs, whether it be in the gaming industry
or another industry.
You mentioned that you don't consider the Lumbees as
Indians. If they're not Indians, what are they?
Mr. Hicks. Sir, actually I would like to answer your
question about the 1956 Act that you asked this gentleman.
Mr. Faleomavaega. Well, if you could answer my pending
question, which is, if you don't recognize Lumbees as Indians,
what are they?
Mr. Hicks. As I said before, they're a group, until
federally recognized, sir.
Mr. Faleomavaega. So 53,000 is a group?
Mr. Hicks. Sir, these folks are self-identified.
Mr. Faleomavaega. You're aware that the administrative
process didn't start until 1978.
Mr. Hicks. Yes, sir, I'm aware of that.
Mr. Faleomavaega. And you're aware also that the
administrative process was strictly a regulatory system that
was developed by the bureaucracy of the Department of Interior?
Congress did not even mandate any of these seven criteria that
are now in place. It's an administrative process. Are you aware
of that?
Mr. Hicks. I'm aware that it's an administrative process,
sir.
Mr. Faleomavaega. So if the administrative process was not
in place until 1978, are you suggesting that all the tribes
that were recognized prior to that has no bearing in terms of
seeking Federal recognition by the Congress?
Mr. Hicks. Sir, my opinion would be that this process was
put in place to determine fact and merit of an Indian tribe,
and I support the process. If the process--Of course, sitting
through the hearings yesterday, it's not a perfect process.
It's evident that possibly additional funds can be put into
this process. But it was also identified by these gentlemen
sitting to my right that it works.
Mr. Faleomavaega. Well, sir, I happen to have a very
different opinion of the process.
You mentioned also that the Lumbees have no language. I
know of several Indian tribes who, thanks to Chief Sequoia, he
was the one who developed the language of the Cherokee people.
I was wondering, even before that, I suppose the criteria of
the language--Does a person have to speak a native language to
be considered an Indian?
Mr. Hicks. Sir, as part of their culture, it is very
important.
Mr. Faleomavaega. You mentioned also, Chief Hicks, that
Congress has no business bypassing the administrative process.
I beg to differ with you on that, sir. Congress has the
ultimate prerogative, if it wants, to pass this legislation.
There is nothing that prevents the Congress from doing this, if
it so wills.
I'm sorry. My time is over, Mr. Chairman. Thank you.
The Chairman. Any further questions of this panel? Mr.
Pallone.
Mr. Pallone. I just wanted to ask Mr. Olsen, are you saying
that you would prefer the Taylor bill? In other words, your
Department takes the position that they would prefer we repeal
the '56 law and let the Lumbees go through the BIA process?
Mr. Olsen. I cannot say whether we would prefer the Taylor
bill. What I would say is that, at the very least, the Lumbee
are entitled to the opportunity to go through the
acknowledgment process.
Mr. Pallone. But you're not necessarily saying that you
would prefer that as opposed to just passing the McIntyre bill
and having them recognized?
Mr. Olsen. I'm not here to speak on the Taylor bill. Like I
said, I think it's important that the Lumbee have--that there
needs to be some sort of legislation in some way. Whether it's
an amendment to the '56 Act to allow the Lumbee to go through
the administrative process, or whether Congress elects to enact
the legislation that we're discussing today, that's entirely up
to the Congress.
Mr. Pallone. It's just the status quo that you don't like
then?
Mr. Olsen. I'm getting a note here.
Whether I like the status quo. Certainly--Well, I think
there certainly are people who would argue that the status quo
is not fair. The '56 Act would be perceived by some as an
unfair law. Yeah, I guess the answer would be yes. The status
quo is not right because the status quo keeps the Lumbee from
moving forward in any way.
Mr. Pallone. OK. I understand your position. I understand
it perfectly.
Congressman McIntyre, in response to my question about
what's wrong with going the Taylor route and repealing the '56
law and then letting the Lumbees go through the BIA recognition
process, I asked him two questions. I said are you opposed to
doing that because you don't think it's fair, or because you
think that somehow it's legally not proper? I think he talked
about the Tiwa Tribe and he said, look, if you decide to repeal
the '56 Act, it's not fair then to go through the recognition
process; you should just recognize the tribe legislatively.
Do you agree with it, or do you want to use the Tiwa
situation as an example, or again, it doesn't make any
difference to you?
Mr. Olsen. Well, again, I don't want to seem wishy-washy
here, but some would argue that the Tiwa situation is
distinguishable--
Mr. Pallone. That's what I would like to know. It is
distinguishable, would you say?
Mr. Olsen. To be perfectly honest, I am not in a position
to comment. I don't feel that I'm up to speed enough to be able
to--
Mr. Pallone. Would anybody else like to comment on that?
Mr. Olsen. I think you will hear from Panel III on that
particular issue.
Mr. Pallone. If any of the others, Chief Hicks or Mr.
Fleming would like to comment on that Tiwa precedent.
Mr. Hicks. I would love to comment.
As we hear before in the prior testimony, the Lumbee argue
that they are similarly situated to the Tiwa tribe. The tribe's
government-to-government relationship was terminated by
Congress, and then later restored in a restoration. The Lumbee
group, by contrast, has never had a government-to-government
relationship with the United States. The language of the Tiwa
Act furthermore specifically refers to Tiwa as a tribe.
Mr. Pallone. What is this distinction, though, Chief, that
you're making between tribe versus group? I'm not sure I
understand it completely. You're saying that the '56 Act didn't
recognize them as a tribe, but just as individual Indians?
Could you explain that a little more?
Mr. Hicks. The Lumbee Act recognized them as individual
Indians, not a tribe.
Mr. Pallone. OK. Well, I think I have already asked enough
questions. I understand what everybody's position is.
Thank you.
The Chairman. Mr. Udall.
Mr. Tom Udall. Thank you very much, Mr. Chairman. Just a
couple of questions here.
Mr. Olsen, your testimony seems to support a legislative
change to the 1956 Act in order to require the Lumbee tribe to
submit to the Federal acknowledgment process. Perhaps you
missed our hearing yesterday, when tribe after tribe testified
how they have been stuck in that process for well over 20
years. Mr. Fleming testified that the Office of Federal
Acknowledgment is overburdened with requests for xerox copies
of documents, curtailing the Office's productivity.
Are you actually suggesting that putting the Lumbee through
that process is the most fair and expeditious action we can
take on their behalf?
Mr. Olsen. I'm not suggesting that it's the most
expeditious or fair. I'm suggesting that it is one option and
that, at the very least, they ought to be entitled to that.
Mr. Tom Udall. The Congress has recognized a number of
Indian tribes. Could you tell us, out of all the Indian tribes
which are federally recognized, how many did Congress recognize
and how many did the Department of Interior recognize?
Mr. Olsen. I don't know off the top of my head, but I think
Lee probably could have some of that information.
Mr. Fleming. I know that when the GAO review took place and
the report came out in November of 2001, that was an issue and
an area that they analyzed. We can provide that information to
you.
Mr. Tom Udall. Could you give the Committee, in response to
this question, a thorough answer in terms of that question, so
we know how many are federally recognized by Congress and then
how many the Department recognized?
Mr. Fleming. I know that when the GAO investigators were
looking into that very question, you're talking of the 562
federally recognized tribes, and they, too, had difficulty in
coming up with definitive statistics on that. But we would be
very happy to pursue that and come up with something for you.
Mr. Tom Udall. Thank you.
Mr. Tom Udall. Could you give me a rough number on how many
have been congressionally recognized?
Mr. Fleming. I can only give you of the petitioning groups
because that would be my area of responsibility. In our summary
status report, we have seven petitioning groups that were
legislatively recognized--these were petitioning groups before
the administrative process--and there were two legislative
restorations, for a total of nine.
Mr. Tom Udall. And there are also others, you believe?
Mr. Fleming. Yes, that were not a part of the
administrative process, yes.
Mr. Tom Udall. So clearly, there is a precedent here for
this committee and the Congress acting to recognize an Indian
tribe; is that correct?
Mr. Fleming. I think Mr. Olsen's testimony was clear on the
Department's position, that Congress has the authority.
Mr. Tom Udall. Thank you.
Mr. Faleomavaega. Would the gentleman yield?
Mr. Tom Udall. I yield to my distinguished colleague from
American Samoa, yes.
Mr. Faleomavaega. I do want to share with my friend that,
since 1960, Congress approved 16 tribes recognized, and 31 by
the Department of Interior. Of the 31 recognized by the
Department of the Interior, only 14 have been recognized
through the BIA regulatory process that was created since 1978.
The BIA currently has ten petitions ready to be
adjudicated, six of which have been waiting for at least 5
years. So, in my humble opinion, we do have some very serious
problems with the current administrative process.
I wanted to ask Mr. Fleming, if he corrects me on this, the
administrative process is strictly an administrative process,
created by the Department of the Interior. Congress, in any
way, did not mandate it by statute. You just created a process
that was part of the Commission efforts that were made during
the 1970s, I believe.
Mr. Fleming. You're correct.
Mr. Faleomavaega. Thank you.
Mr. Tom Udall. I yield back. Thank you, Mr. Chairman.
The Chairman. Any further questions? Mr. McIntyre.
Mr. McIntyre. Yes, Mr. Chairman, just for purposes of
clarification, if I could allow the Committee to take notice of
certain factual matters, or I can state it in the form of as
question, whichever the Chairman prefers.
The Chairman. Say that again?
[Laughter.]
Mr. McIntyre. I'll ask it as a question.
The Chairman. All right.
Mr. McIntyre. Mr. Olsen, you referred to the amount of
money that would be spent for the tribe in terms of Federal
recognition. Were you aware that, according to the
Congressional Budget Office, for the first year of recognition
it would be $77 million?
Mr. Olsen. I was not.
Mr. McIntyre. And were you aware that that is only 1.67
percent, only one-and-two-thirds percent, of the combined BIA
and Indian Health Service budget?
Mr. Olsen. No, sir.
Mr. McIntyre. The recognition of this tribe, therefore, if
those figures are correct, would be one-and-two-thirds percent
of the entire BIA/Indian Health Service budget for the Lumbee
Tribe.
Did you realize, Mr. Olsen, that the testimony given today
by Chief Hicks, when he referred to several pieces of
legislation he has shown on a chart that says different Indian
names, that these were names imposed by the State of North
Carolina upon this tribe?
Mr. Olsen. I can't see the sign, but no, I was not aware of
that.
Mr. McIntyre. Did you know that when the tribe chose the
name on its own accord, not one imposed by government, it
through referendum chose the name ``Lumbee''?
Mr. Olsen. I was aware of that, yes.
Mr. McIntyre. Were you aware of a 1914 report by Special
Indian Agent O.M. McPherson, ordered by the U.S. Senate, to
investigate tribal rights of the Lumbee people--and I'm
quoting--``confirmed the Lumbee Indians had tribal
characteristics''?
Mr. Olsen. I was not aware of the report.
Mr. McIntyre. And are you aware of a 1934 report, done by
Mr. John Swanton, expert on southeastern Indians, employed by
the Smithsonian Institution, where the findings concluded that
the Lumbee tribe is located in precisely the same area as the
Cheraw Tribe was from whom it claims its direct ancestry?
Mr. Olsen. Yes, sir.
Mr. McIntyre. Thank you. No further questions.
The Chairman. If there are no further questions, I want to
thank our witnesses on this panel, Mr. Olsen, Chief Hicks and
Mr. Fleming for being with us. If there are further questions
that members have--I know that Mr. Jones had a list of
questions that he wanted to submit, and I'm sure other members
do, as well--they will be submitted to you in writing, and if
you could answer those in writing for the committee so they can
be included in the record, we would appreciate it.
Thank you for being here.
Mr. Olsen. Thank you.
Mr. Hicks. Thank you, Mr. Chairman.
The Chairman. I would like to call up our third panel,
consisting of three witnesses testifying in favor of H.R. 898.
They are Chairman Jimmy Goins of the Lumbee Tribe of North
Carolina, Dr. Jack Campisi, a researcher for the Lumbee Tribe,
and Arlinda Locklear, attorney for the Lumbee Tribe.
If I could have you stand and raise your right hands.
[Witnesses sworn.]
Thank you. Let the record show they answered in the
affirmative.
Welcome to the hearing today. Mr. Goins, we will begin with
you.
STATEMENT OF JAMES ERNEST GOINS, CHAIRMAN,
LUMBEE TRIBE OF NORTH CAROLINA
Mr. Goins. Thank you, sir. I am Jimmy Goins, Chairman of
the Lumbee Tribe, and I proudly appear before you today on
behalf of the Lumbee Indians in their efforts for full Federal
recognition. It is an honor to speak before you today for your
consideration of the Lumbee Recognition Act, H.R. 898, as
proposed by the honorable Congressman Mike McIntyre. I am
nervous.
I also would like to thank Chairman Pombo, Ranking Member
Congressman Rahall, Senator Dole, Congressman Richard Burr, and
our own representative, Mr. Mike McIntyre.
At this time I would like to enter my written statement
into the record.
My tribe lives in communities that are predominantly
Lumbee. We know each other through community and kinship ties.
Both my parents are Lumbees, my wife is a Lumbee, and both her
parents are Lumbee Indians, also. I have two married daughters
and their husbands are also Lumbee Indians.
For all of my life, I have attended a Lumbee church, I
attended an all-Lumbee school, from the first grade to the
twelfth grade. All my neighbors are Lumbee Indians, and all the
land in my community is owned by Lumbee Indians. Our connection
to the land we call home, and to each other, are typical of
Indian peoples. We draw our strength from home known to others
as Robeson County. Regardless of where a Lumbee may reside,
home is always Robeson County.
When two Lumbees meet for the first time, the first
question they ask is, ``Who are your people?'' All Lumbees know
their family history three generations back, and with little
discussion, any two Lumbees can connect themselves either by
direct kinship or marriage. These bonds, the ties to our land
and each other, are the ties that have enabled us to survive as
a tribe, even without Federal recognition.
My first personal experience outside my Lumbee community
came when I enlisted in the U.S. Army in 1968. On my Army
application it stated white, colored, and other. Knowing I was
none of these, I wrote in ``Lumbee Indian''. Even though I was
an E-5 buck sergeant, and a squad leader, when I went to
Vietnam I had to walk point or scout because I was a Lumbee
Indian.
I was seriously wounded while I was walking point in
Vietnam. I received some 2,300 stitches, and I sit before you
today a 100 percent disabled American veteran. I proudly wear
the Bronze Star, the Purple Heart, and the Air Medal. I served
my country honorable and exhibited the qualities that were
instilled in me by my Indian ancestors.
I am an American Indian, as are my parents and their
parents before them. I fought for this country as an American
Indian, as did many of our Lumbee people. Lumbee people are
serving today in Iraq and Afghanistan, fighting for the freedom
of all Americans. Yet the United States does not recognize my
tribe.
When I was 8 years old, the United States passed a law that
recognized my tribe, but this law included language that said,
although we were Indian, we would not be treated like other
Indian tribes. We have been treated like second-class citizens.
Now is the time to correct the injustice my people have
endured.
On behalf of the 53,000 Lumbee Indians that I represent, I
humbly ask that this injustice end today. My voice is their
voice, a united, strong, and clear voice.
I would like to thank you for you time and consideration of
H.R. 898.
[The prepared statement of Mr. Goins follows:]
Statement of James Ernest Goins, Chairman,
Lumbee Tribe of North Carolina
My name is James Ernest Goins and I am Chairman of the Lumbee
Tribe. Today I proudly appear before you on behalf of our People, the
Lumbee Tribe of North Carolina. As our ancestors of years past, we
gather here today with the same common vision of receiving full federal
recognition.
The Lumbee desire for federal recognition
I am a direct lineal descendant of tribal leaders who first
petitioned the United States in 1888 for federal recognition. This
petition to Congress was a request for federal recognition and
financial support for the education of Lumbee children. This petition
to Congress was a request for federal recognition and financial support
for the education of Lumbee children. At the time, the State had
approved two years' funding for the teachers at our school and none for
purchase of land or construction of a school building. The Tribe
donated the land and built the school but had trouble keeping the
school open with so little support from the State. The United States
was quick to respond:
While I regret exceedingly that the provisions made by the
State of North Carolina seem to be entirely inadequate, I find
it quite impractical to render any assistance at this time. The
Government is responsible for the education of something like
36,000 Indian children and has provision for less than half
this number. So long as the immediate wards of the Government
are so insufficiently provided for, I do not see how I can
consistently render any assistance to the Croatans or any other
civilized tribes.
This was the beginning of a theme that we were to hear time and
again from the federal government--you may be an Indian tribe
and you may need our help, but we have too little funds to help
you.
Our grandparents heard that theme often. In 1899, Congressman John
Bellamy introduced a bill that would recognize the Croatan Indians and
provide assistance to the Indian normal school. In 1905, our people
made a third effort. A rally was held at the Indian normal school for
the purpose of securing a federal census of Indians in the community
and federal support for the Indian school. Both these efforts failed.
Between 1910 and 1924, no less than five separate bills were
introduced to obtain federal recognition and assistance for the Indian
normal school in Robeson County. Congress asked the Department of the
Interior to investigate the history and needs of our people three times
during this period. Each time, the Department acknowledged that we were
Indian, but each time the Department recommended against the bill,
mostly for fiscal reasons.
During the 1930s when my people were attempting to reorganize under
the Howard Wheeler Act, my wife's grandfather helped raised money to
send our people to Washington. Their pleas met with some results. Dr.
Swanton from the Bureau of Ethnology was sent to investigate our
origins and history. He concluded the Lumbee people to be descendants
of the Cheraw. Nevertheless, that effort failed as well.
Then, in 1935, Assistant Solicitor Felix Cohen put in writing a
plan that would allow the Indians of Robeson County to organize under a
constitution. Tribal leaders immediately submitted a request to
organize to the Department of the Interior. Commissioner Collier sent
an Indian agent, Fred Baker, to Robeson County to work out a plan for
land resettlement so that a reservation might be created for qualified
half-bloods. The Indian agent reported in 1935 that he had met with
approximately 4,000 members of the Indian community and found strong
support for the idea. That meeting was held at a small Lumbee church
between Prospect and an adjoining Lumbee community, known as Pembroke.
In his report to Washington, he described this meeting:
It may be said without exaggeration that the plan of the
government meets with practically the unanimous support of all
the Indians. I do not recall having heard a dissenting voice.
They seemed to regard the advent of the United States
government into their affairs as the dawn of a new day; a new
hope and a new vision. They hailed with joy the offer of the
government; many of the old people could not restrain their
feelings,--tears filled many eyes and flowed down furrowed
cheeks. We must confess to the fact that our own feelings were
deeply touched as the old people expressed so deep a longing to
have a piece of land on which they could live in peace.''
The agent concluded, ``It is clear to my mind that sooner or later
government action will have to be taken in the name of justice and
humanity to aid them.''
Justice did not come that time either. The plan was contingent upon
certification of Indians in the county as half or more Indian blood.
Initially, Assistant Commissioner Zimmerman and Assistant Solicitor
Cohen had thought that Indian school enrollment records, other state
records and oral tradition would all be used in this process. But in
the end, the determinations were made based solely on physical
measurements and features, e.g., body measurements, skin pigmentation,
and facial features, which have since been discredited as having no
scientific basis. Most tribal members refused to submit to these tests.
Only 209 agreed to do so, out of which 22 were eventually certified as
half-bloods. Thus, this effort failed.
In the early 1950's, the Tribe once again looked to legislation as
the answer. After obtaining state legislation in 1953 recognizing the
Tribe under the name Lumbee, the Tribe sought federal recognition
legislation. In 1956, Congress did pass the Lumbee Act, designating the
Indians in Robeson and adjoining counties as Lumbees. But at the
request of the Department of the Interior, the bill was amended before
enactment to provide that Lumbees could not receive services as
Indians. Thus, we failed once again because of the intervention of the
Department of the Interior.
Our latest effort began about eight years ago after the Department
of the Interior promulgated regulations on recognition. In December
1987, the Tribe filed a fully documented petition for federal
acknowledgment. Two years later the Solicitor's Office decided that the
Lumbee Tribe is not eligible for the administrative process because of
the termination language added to the 1956 Lumbee Act at the request of
the Department.
Even so, some say repeal the 1956 Lumbee Act and force the Tribe to
go through the administrative process. My answer to this is to pose
this question: What will the Department of Interior learn that its
experts haven't already told them? Every time a bill was introduced to
recognize us, the Department was asked to investigate our history and
community. Each time the Department acknowledged the existence of an
Indian community, but opposed the bill because money was too short. How
much do our people have to take? How many times does the Department of
the Interior have to investigate our history? We believe enough is
enough and the time has come for Congress to finish what it started in
1956.
Our People lost control over our Lumbee schools because we are not
federally recognized. This was a serious blow to our People's
independence. Without federal recognition, we cannot have full charge
of our communities. Without federal recognition, we will continue to be
treated as second-class Indians.
The Lumbee community and governance
My family and I are typical of Lumbee families. Let me share a
little about myself and my family to illustrate the strength and ties
that bind our People.
I am the son of Ernest and Ola Jacobs Goins and a son of the
Prospect Community, the oldest documented Lumbee Community located in
the historic Cheraw Settlement. My wife is Diane Locklear Goins,
Lumbee, and a retired schoolteacher, who taught at Pembroke Elementary
School, a Lumbee school, for 31 years. Diane grew up in the Union
Chapel Lumbee community, the home community of my mother. My oldest
daughter, Rhonda, is a Rehabilitation Coordinator with the Robeson
County Mental Health Department where she works with children from
birth to three years of age. My daughter, Jacqueline, is also a Lumbee
educator at a predominantly Lumbee school. My youngest daughter, Jamie,
currently serves as an Ambassador with the Americans for Indian
Opportunity's American Indian Ambassador Program; she recently returned
from New Zealand as one of several American Indian Ambassadors. All my
sons-in-law are Lumbee Indians and grew up in Lumbee communities here
in Robeson County.
I am the great, great, great grandson of Clarissa Sweat/Lowry
Chavis. The Department of Interior's investigations in the 1930's show
that Clarissa was one of the last speakers of our language. She often
served as an interpreter between the white traders and her father. She
died in 1897 and is buried along the banks of Drowning Creek, in the
Harper Ferry's Lumbee community--located about five miles from where I
grew up and presently live. This is the same river that is known as the
Lumbee River to our People, and the Lumber River to others.
My family, like other Lumbee families, takes pride in our community
and maintaining a strong sense of tribalism. Because our communities
are composed of large extended families, our children continue to be
not only our children but also the sons and daughters of our Lumbee
communities. Children are raised by the whole family, not just mothers
and fathers. Our People live in parallel worlds. We know what it is to
be Lumbee and we know about the world outside the Lumbee world.
Throughout my life, I have attended all Indian churches. Growing up
in the Prospect community, I attended Prospect United Methodist Church,
located immediately across from Prospect School. You may be interested
in knowing that Prospect United Methodist Church is the largest
American Indian church in the United Methodist Church. I now attend
Union Chapel Holiness Methodist Church, my wife's home church. This
church is part of the Lumbee River Holiness Methodist Conference
(LRHMC), founded by Lumbee people in 1900. This religious conference is
solely composed of Lumbee churches.
I attended Prospect School, an all-Indian school. Its teachers and
principals were all Indian. This school was part of the separate school
system established for the Lumbee Tribe by the State of North Carolina
in 1885. Only a rural country road separated the school from my church.
During the school year, I--along with all other students--marched
across that road for ``religious emphasis week''. I have grandchildren
who attend Prospect School today. And they continue to cross the road
one week during the school year where they receive one hour of
religious training. Today, however, students are required to obtain
parental consent.
My schoolteachers were also my Sunday school teachers. The headmen
of the community, being also the heads of our large extended families,
selected the teachers for our schools. They also decided who could
attend our schools. Both my paternal and maternal grandfathers, Willie
Goins (Prospect community/school) and Anderson Jacobs (Union Chapel
community/school) were among these headmen. They, along with the
headmen from other Lumbee communities, had sole authority for purpose
of deciding who attended Indian schools, and who would be allowed to
teach in these schools. Teachers were selected based not only
qualification, but also their moral character. As religious and school
leaders, these tribal leaders not only shaped our schools, our
churches, and our communities, they ultimately governed the Tribe.
After graduating from Prospect School in 1966, I enlisted in the
United States Army and was severely wounded in the rice paddies of
Vietnam on December 31, 1969. The men in my squad called me ``Chief'',
and awarded me the job of walking point through the jungles and rice
paddies of Vietnam. Like all Lumbee veterans, I am proud of my service
to this country and I wear its medals with pride: the Purple Heart, the
Bronze Star, and the Air Medal. My father, too, served this country in
World War II. Indeed, Lumbee People have served this country as far
back as 1775 when we fought side by side with the colonists. The only
war the Lumbees did not serve in was the Civil War. During that period
of time, we engaged in our own war against the Confederacy.
When we gather at the Pembroke VFW (all Lumbee, with exception of
one member), where I am a lifetime member, I look at my friends and I
am grateful that we, who have every reason not to bear arms for this
country, have fought along the sons and daughters of this great country
when called to do so. No greater honor could be conferred upon those
Lumbee men who gave their lives for this country and those who returned
from its wars than passage of H.R. 898.
Our connection to the land we call home and to each other are
typical of Indian peoples. We draw our strength from home, known to
others as Robeson County. Regardless of where a Lumbee may reside, home
is always Robeson County. And when two Lumbees meet for the first time,
the first question asked is who are your people, i.e. your family
lines. All Lumbees know their family history three generations back and
with a little discussion any two Lumbees can connect themselves either
by direct kinship or marriage. These bonds--the ties to our land and
each other--are the ties that have enabled us to survive as a tribe
even without federal recognition.
For most of our history, the Lumbee Tribe has functioned with
informal leaders, people typically drawn from the leading families
within our communities. These leaders took whatever steps were required
to protect our people, including self-defense such as during the Civil
War, and handled all our government-to-government relations with the
State of North Carolina. Recently, our people decided to establish a
formal tribal government. In November 2001, by special referendum
conducted among enrolled Lumbees, a tribal constitution was adopted by
the Lumbee people. It creates three branches of tribal government: a
tribal chairman with executive powers, a tribal council with 21 members
representing districts within the Lumbee territory, and a tribal court
to hear disputes arising under tribal law among members. This tribal
government has been recognized by the State of North Carolina as the
governing body of the Lumbee Tribe and I am the Tribal Chairman elected
in accordance with its terms. A copy of the Tribe's constitution is
attached to my statement.
Lumbee membership
Because the Tribe has not historically received services or other
benefits for its members, the Tribe did not historically maintain a
formal membership list. Informal and partial lists of tribal members
have been prepared for various purposes, though. For example,
attendance at the Lumbee schools was limited to Lumbee children and
committees of Lumbee leaders (sometimes called blood committees) had
authority to determine a child's eligibility to enroll. These
committees produced partial membership lists.
A few lists of tribal members also can be found in our churches'
records. Since Lumbee people have historically attended all Indian
churches, these lists are among the Tribe's base rolls. Finally, the
United States Census has occasionally prepared special Indian censuses
to count Indians. This collection of documents was used to compile a
base roll for the Lumbee Tribe for 1900 and 1910. They are excellent
records and, because Indian households are listed by order of
visitation, you have a record of the families comprising our
communities, e.g. Prospect, Pembroke, Union Chapel, Saddletree, and
Fairgrove. The same families are there today.
The Tribe has since the early 1980's (when work on the
acknowledgment petition began) used a formal enrollment process. As
part of the preparation of the acknowledgment petition done in 1987,
the Tribe for the first time reduced its membership criteria to writing
and prepared a complete list of its members. The written membership
criteria are essentially the same used by the Lumbee people informally
for generations for things such as school attendance. There are two
criteria: first, the person must prove descent from an ancestor on the
base roll, which consists of partial lists of tribal members found in
school and church records; second, the person must maintain contact
with the Lumbee community. To us, maintaining contact means that you
must be known to us, that is, known to be related to one of the
families at home. Unless the Tribe knows you, then you are not allowed
to enroll even if you can prove descent from a Lumbee ancestor. And the
data in every application for enrollment is confirmed before an
individual is enrolled. Using this process, we have enrolled to date
nearly 53,000 members.
H.R. 898
The bill before the committee would give the Lumbee people what we
have long sought--treatment equal to other Indian tribes in the United
States. It is respectful of the Lumbee Tribe's historical
independence--it does not create an Indian reservation and yet would
provide the same protections of federal law enjoyed by other Indian
tribes. It is also respectful of the Tribe's long-standing relationship
with the State of North Carolina--it authorizes the continuation of the
State's present jurisdiction over the Tribe and its members.
As for the same treatment as that given other tribes, let me say
that, even though Indian tribes can conduct high stakes gaming under
certain circumstances under federal law, gaming has nothing to do with
the Lumbee Tribe's desire for federal recognition. History shows that
the Lumbee Tribe first sought federal recognition in 1888--a full one
hundred years before the passage of the Indian Gaming Regulatory Act.
The Tribe has no plans to set up a casino and has no economic
development backer for that purpose. And there are several barriers to
doing so in the future, even if the Tribe wanted to--first, our
constitution requires that a chairman conduct a special referendum
among our people to authorize him/her to negotiate for a casino;
second, H.R. 898 insures that any acquisition of land for gaming
purposes would require the Governor's concurrence. In other words, the
Governor of North Carolina could veto any gaming by the Lumbee Tribe,
even if the Tribe decided in the future that it wanted to do such an
enterprise. But the important point for our people is that, finally and
once and for all, the Lumbee Tribe is treated just like every other
federally recognized tribe in the country. Congress should not pick an
choose among federal Indian statutes for the Lumbee--after all we've
endured we are entitled to the same privileges as all other federally
recognized tribes, whether we exercise those privileges or not.
As for State jurisdiction, we always remind our Indian friends
outside Lumbee territory that our situation is unique. Because of the
size of the Tribe and the Tribe's political engagement, the Lumbee
Tribe controls or influences many of the reins of local authority.
Three out of eight Robeson County Commissioners are Lumbee, the County
Sheriff is Lumbee, several elected judges in the County are Lumbee,
four out of eleven members of the County School Board is Lumbee, and
the Mayor and Town Council of Pembroke are all Lumbee. We also have a
Lumbee in the North Carolina General Assembly. So leaving jurisdiction
in the hands of local organs of government means leaving jurisdiction
in the hands of Lumbees.
Congressman McIntyre's bill would finish what Congress began in
1956 and is the right thing to do. The Lumbee people have been patient
and persistent in their quest for federal recognition, but I can tell
you our people yearn for federal recognition. It is important to us
that the federal government formally acknowledge what we have paid such
a high price to maintain--tribal existence. The time has come for the
United States to acknowledge the fact that the Lumbee people are and
have always been an Indian tribe. This is the truth of the Lumbee
people. It is a truth that North Carolina has long acknowledged. It is
truth that other Indian people and experts on Indian history accept.
And it is a truth that the Department of the Interior has known for one
hundred years.
On behalf of the Lumbee people, I thank the committee for the
opportunity to share our story with you and urge the Committee to act
favorably on H.898.
______
[A letter submitted for the record by Mr. Goins follows:]
[GRAPHIC] [TIFF OMITTED] T2851.001
[GRAPHIC] [TIFF OMITTED] T2851.002
The Chairman. Thank you, Chairman.
Dr. Campisi.
STATEMENT OF JACK CAMPISI, ASSOCIATE PROFESSOR, WELLESLEY
COLLEGE, AND RETIRED RESEARCHER FOR THE LUMBEE TRIBE OF NORTH
CAROLINA
Dr. Campisi. Mr. Chairman and members of the Committee, I
would like to thank the Committee for giving me the opportunity
to address you on this important legislation. I have submitted
a written statement that I request be made part of the record
of this hearing.
The Lumbee Tribe received State recognition in 1885, and
from that time until the 1970s, the tribe organized and
operated its own school system, authorized and funded by the
State of North Carolina. Only Lumbee children were enrolled by
the Lumbee school committees. They were taught by Lumbee
teachers, who were trained at the Lumbee-run Normal School, now
part of the University of North Carolina, Pembrooke. The school
system remained in tribal control until a Federal judge
desegregated in the 1970s.
It was the need for financial assistance for their school
in the 1880s that led the Lumbees to seek Federal recognition.
They have continuously sought recognition through special bills
and from the Department of the Interior. These efforts produced
a documentary record on this tribe's history and community that
proves their tribal existence. These studies were produced by
Congress and the Department of the Interior, and I ask that
they be made part of the record.
The documentary evidence on this group proves their tribal
existence, even as defined by the Federal acknowledgment
regulation. My quarter century of experience with the
regulatory process shows that the two criteria--community and
political authority--are the most difficult to demonstrate. I
have previously described the tribal exercise of authority over
education, and in my written testimony I have provided other
evidence.
As to community, in 2002 I supervised the drawing of a 1-
percent random sample of tribal enrollment to determine the
tribe's residency and marriage patterns. This is a map of
Robeson County showing the Lumber River, formerly known as
Drowning Creek. As the map shows, nearly two-thirds of the
people living in the tribal core area are tribal members, and
70 percent of the Lumbees who are married are married to other
tribal members. The regulations say that this evidence alone is
conclusive proof of community and political authority. This
same pattern existed in the past as well.
Allow me to point out that at the first English contact,
the Cheraw Indians were living along Drowning Creek, that there
was a Cheraw settlement on Drowning Creek in the 1770s, and
that the surnames on a partial list of members of that
community are to this day the surnames uniquely found in the
Lumbee community.
Finally, the Lumbee tribal members can trace their
ancestors back to the first U.S. Census in 1790.
In 1934, the Department of the Interior, in its testimony
to the Congress, expressed its view that the modern Lumbee
community descends from the historic Cheraw tribe. The
Department's view was based on the research of Dr. John R.
Swanton, the eminent anthropologist at the Bureau of American
Ethnologies of the Smithsonian Institution. This opinion has
been supported by acknowledged experts in the field. The
ancestral link has not been altered by the various names
applied by the State to the Lumbees over the past 130 years.
They are the same people, it is the same tribe.
Thank you.
[The prepared statement of Dr. Campisi follows:]
Statement of Dr. Jack Campisi, Associate Professor, Wellesley College,
Retired Researcher, Lumbee Tribe of North Carolina
I hold a doctorate in anthropology, have dedicated my career to
research in tribal communities, and have taught these subjects as an
adjunct professor at Wellesley College. A copy of my curriculum vita is
attached to this statement. Between 1982 and 1988, I conducted a number
of studies for the Lumbee Tribe of North Carolina. Each of these
included fieldwork in the community for periods of time varying from a
week to three weeks. In all, I spent more than twenty weeks in Robeson
County carrying out a variety of research projects. Besides being
responsible for synthesizing the thousands of pages of documentation
collected during the ten years it took to carry out the archival
research, and for designing and carrying out the community research, I
had the honor of writing the petition that was submitted on December
17, 1987, to the Branch of Acknowledgment and Research (now the Office
of Federal Acknowledgment). Specifically, I drafted the Historical
Narrative section, and researched and wrote the sections dealing with
community and political continuity. Subsequent to the completion of the
petition, I continued research with the Lumbee Tribe, most recently in
2002. The material that follows is based on my twenty years' research
on the Tribe's history and community.
Over the course of the past twenty-five years, I have worked on 28
tribal petitions for federal acknowledgment. None has exceeded the
Lumbee petition in documentation and no group has exhibited more
evidence of community cohesion and political continuity than the Lumbee
Tribe. It is my professional opinion that the Lumbee Tribe meets the
criteria for recognition. I will outline below the main arguments and
evidence in support of this conclusion.
AN OVERVIEW OF LUMBEE TRIBAL HISTORY
That there was a separate and continuous Indian community in
Robeson County during the ante-bellum period is clear from state court
and federal census records. Although generally classified as free non-
whites during the post-Revolutionary War years, the Lumbees appear to
have been treated more generously than free blacks, being allowed to
vote without challenge and to own property. However, in the 1830s two
seemingly unrelated actions--one by the national government and the
other by the State of North Carolina--converged, with disastrous impact
on the Indians of the state. In 1830, Congress passed legislation
providing for the removal of all Indian tribes east of the Mississippi
River to land set aside in the ``Indian Territory'' in Oklahoma. Tribes
such as the Cherokee and Creek were forced to leave. In the climate of
removal, it did not benefit a tribe to overtly manifest its identity.
Lumbees, like other Indians in the state, held their land in severally,
but often without patents. Thus, they were in a precarious position.
Added to the problem of tribal survival was the steadily worsening
relationship between whites and ``people of color'' in North Carolina
following Nat Turner's uprising in 1831. In 1835, the state passed a
constitutional amendment denying tribal members rights they had
previously enjoyed. Many refused to abide by the changes and some were
charged with violations. One case, in particular, went far toward
recognizing the Lumbees as Indians. In 1857, a William Chavers was
arrested and charged as ``a free person of color'' with carrying a
shotgun, a violation of state law. He was convicted, but promptly
appealed, claiming that the law only restricted free Negroes, not
persons of color. The appeals court reversed the lower court, finding
that ``Free persons of color may be, then, for all we can see, persons
colored by Indian blood, or persons descended from Negro ancestors
beyond the fourth degree.'' The following year, in 1859, in another
case involving a Lumbee, the appeals court held that forcing an
individual to display himself before a jury was tantamount to
compelling him to furnish evidence against himself. These cases
generally resulted in the Lumbees establishing a special status under
the law as Indians, one outside the limitations placed on others who
were classified as ``free persons of color.''
The federal census records are by far the best source of evidence
concerning the Lumbee community. It is clear from the names of the
heads of households that the area of Robeson County around Drowning
Creek, renamed the Lumber River in 1809 by the State Legislature, was
occupied almost exclusively by tribal members. Based on the 1850 census
(the first census to provide the names of the individual's resident in
each household), it is possible to describe the residency patterns of
the Lumbee community. Thus, there can be no doubt that there was an
Indian community present along Drowning Creek from the mid-1700s,
separate from other communities in the area. It is also certain that
this community had a well-established leadership structure and that it
managed its affairs with relative autonomy.
The oldest Lumbee community that can be continuously documented was
called Long Swamp, now called Prospect and located within the core area
in Pembroke and Smith townships. It is also located right in the heart
of the so-called old field of the Cheraw, documented in land records
between 1737 and 1739. The earliest census records show the presence in
this community of an extended Locklear family continuously since 1790.
Members of this extended family appeared among the tribal leaders, both
by descent and marriage, who petitioned Congress for federal
recognition in 1888. Members of this extended family were also among
those who were tested by physical anthropologist Carl Seltzer in 1936
for blood quantum. This includes Duncan Locklear and Henry Locklear,
whose pictures are attached. The Tribe's attorney, Arlinda Locklear, is
also descended from this extended family.
From 1860 on, there is abundant evidence of tribal activity. During
the Civil War the Lumbee Indians were prohibited from serving in the
Confederate Army and were, instead, conscripted into labor gangs and
assigned to build the fortifications at the mouth of the Cape Fear
River to protect the city of Wilmington. The conditions were harsh and
the treatment brutal. Many Lumbee men escaped and returned home where
they hid out in the swamps of Robeson County. Besides Lumbees, the
swamps provided a refuge for Union soldiers who had escaped from nearby
Confederate camps. Because of their treatment by the Confederacy, and
more particularly the Home Guard, the Lumbees gave assistance and
protection to the Union soldiers. As the number of Lumbees and Union
soldiers ``laying out'' increased, so did the burden of feeding them.
With so many men in hiding or conscripted, there were few to do the
farm work. Gradually, the attitude of the Lumbees changed from a
passive one to one marked by belligerence. In short order, a band
emerged, led by the sons of Allen Lowrie.
Matters came to a head in 1864 when members of the Allen Lowrie
family and the local authorities came into armed conflict and a number
of individuals on both sides were killed. In March of 1865, the Home
Guard captured Allen Lowrie and his son, William, and after holding
them for a short time, executed them in a field near the father's
house. This was followed by a virtual reign of terror during which the
Home Guard tortured members of the Lowrie family and their kinsmen in
order to learn the whereabouts of the band. With the death of his
father and brother, Henry Berry Lowrie, who was barely twenty years
old, took over the leadership of the band. For the next decade, led by
Henry Berry Lowrie, and with community support and protection, the band
fought against local authorities who sought by a variety of means to
oppress the Indian population in Robeson County. The Lowrie Band led a
struggle that ended only after the disappearance of its leader in 1872,
and the capture and death of the last of the band members in 1874.
Henry Berry Lowrie remains a folk hero to the Lumbee Indians and his
story is told every year in an outdoor drama called ``Strike at the
Wind.''
By the 1870s, the Lumbees were openly acknowledged to be Indians.
While the Lowrie Band was carrying out its defense, others in the tribe
were taking equally effective actions to assert their independence.
Lumbees were denied access to the white schools in the county and they
refused to attend the schools for blacks. This impasse was broken in
1885, when the Lumbees were formally recognized by the State of North
Carolina as an Indian tribe and permitted to establish a school system
for the children of tribal members only. Tribal members exercised
complete control over who could attend the schools. Each Lumbee
settlement had a school committee that determined eligibility. In order
to be eligible, an individual had to prove Lumbee ancestry back through
the fourth generation, that is, back to the 1770's. Because of the
rigorous manner in which these rules were enforced in the nineteenth
century, school enrollment provides an accurate basis for determining
present-day membership.
In 1887, tribal members petitioned the state legislature,
requesting the establishment of a normal school to train Indian
teachers for the Tribe's schools. Permission was granted, tribal
members raised the funds, and along with some state assistance, the
normal school began training teachers for the expanding Lumbee school
system. That normal school has been in operation continually since,
evolving into Pembroke State University and, recently, the University
of North Carolina at Pembroke.
In 1888, the Tribe petitioned Congress for educational assistance.
The request was sent by the House Committee on Indian Affairs to the
Commissioner of Indian Affairs, but no action was taken for nearly two
years. Finally, in 1890, Commissioner Morgan responded to the Tribe,
telling them that, ``So long as the immediate wards of the Government
are so insufficiently provided for, I do not see how I can consistently
render any assistance to the Croatans or any other civilized tribes.''
There is no doubt that the government's rejection of assistance was
based solely on economic considerations, the commissioner implying that
if sufficient funds had been available, services would have been
provided to tribes he referred to as ``civilized.''
The Lumbees made frequent attempts over the course of the next
fifty years to receive assistance from the United States. In 1899,
Congressman John D. Bellamy introduced legislation to provide
educational assistance for the Croatan Indians (as the Lumbees were
then called). Again, in 1910 and 1911, legislation was introduced in
Congress to change the Tribe's name and to establish ``... a school for
the Indians of Robeson County, North Carolina.'' To secure information
on the Tribe, the Indian Office sent Charles F. Pierce, Supervisor of
Indian Schools, to investigate. He reported favorably on the Tribe,
finding ``... a large majority as being at least three-fourths
Indian.'' He described them as being law-abiding and industrious and
``crazy on the subject of education.'' Pierce had no doubt that the
Lumbees were Indians, or that they were a tribe. Nor did he doubt that
federal educational assistance would be beneficial. He opposed the
legislation because, in his words, ``[a]t the present time it is the
avowed policy of the government to require states having an Indian
population to assume the burden and responsibility for their education,
so far as is possible.'' After lengthy deliberations, the bill passed
the Senate, but not the House, because the chairman of the House
committee felt that the Lumbees were eligible to attend the various
Indian boarding schools.
The Tribe continued its efforts to secure federal educational
assistance, and, in 1914, sent a delegation to Congress. Another
investigation was carried out by the Indian Office at the direction of
the Senate. Among other things, Special Indian Agent, O.M. McPherson
found that the Tribe had developed an extensive system of schools and a
complex political organization to represent its interests. He noted
that the Lumbees were eligible to attend federal Indian schools, but
doubted that these schools would meet their needs. His recommendation
was that, if Congress saw fit to establish a school, it should be one
emphasizing agricultural and mechanical skills. Again, Congress took no
action. Parenthetically, it should be noted that during this period
tribal activity was generally at a low level across the United States.
Not so for the Lumbees, who actively involved their congressmen in
their efforts to achieve federal recognition.
During the 1930s, the Tribe renewed its efforts to achieve federal
recognition. In 1934, the Bureau of Indian Affairs asked the eminent
anthropologist at the Bureau of American Ethnology, John Reed Swanton,
for his professional opinion on the Lumbees. Swanton was emphatic
concerning their Indian ancestry, specifying a Cheraw and other eastern
Siouan tribes as their ancestry. A later report by Indian Agent Fred
Baker (1935), who had visited the Lumbee community, gave further
support that they constituted a tribe. Baker discussed a resettlement
project with the Tribe in which the government would acquire land for
the Lumbees' support, an alternative to the share-cropping and credit
system then the predominant means of Lumbee livelihood. Baker reported
to Congress:
``It may be said without exaggeration that the plan of the
government meets with practically the unanimous support of all
of the Indians. I do not recall having heard a dissenting
voice. They seemed to regard the advent of the United States
government into their affairs as the dawn of a new day; a new
hope and a new vision...
``I find that the sense of racial solidarity is growing
stronger and that the members of this tribe are cooperating
more and more with each other with the object in view of
promoting the mutual benefit of all the members. It is clear to
my mind that sooner or later government action will have to be
taken in the name of justice and humanity to aid them.''
However, the Bureau of Indian Affairs did not support recognition
of the Tribe, despite four studies that all found the Lumbee to be
Indian. The apparent reasons were the size of the Tribe and the costs
to the government.
Following the First World War, the Lumbees renewed their efforts,
both in the state and with Congress, to improve their educational
system. At the state level, they were able to get an appropriation of
$75,000 for capital improvements at the Indian Normal School. The issue
of the Tribe's name had become a concern, and tribal leaders sought
legislation in Congress to recognize the name adopted by the State
Legislature--The Cherokee Indians of Robeson and adjoining counties in
North Carolina. Such a bill was introduced in the Senate in 1924, and
at first received favorable support from the Secretary of the Interior,
although Commissioner of Indian Affairs Charles H. Burke opposed the
legislation. The Secretary later dropped his support and the bill died.
The efforts to obtain congressional recognition were resumed in
1932. Senator Josiah W. Bailey submitted a bill designating the Indians
of Robeson and adjoining counties as ``Cherokee Indians,'' but this
effort also failed. The following year another bill was proposed, this
time designating the Tribe as the ``Cheraw Indians,'' at the suggestion
of Dr. Swanton. This name caused a split in the Tribe, with those
tribal members led by Joe Brooks favoring it, while others, led by D.F.
Lowry opposing it, fearing it would jeopardize the Tribe's control over
its schools. Because of the split in the Tribe, the effort failed.
With the passage of the Indian Reorganization Act, Brooks and his
supporters attempted to organize the Tribe under a federal charter.
Because the Tribe did not possess a land base, it was advised by
Assistant Solicitor Felix Cohen to organize under the half-blood
provision of the Act. Cohen urged that the Tribe apply for land and a
charter under the name of the ``Siouan Indian Community of Lumber
River.'' Brooks immediately submitted a proposal that mirrored Cohen's
recommendations. Over the course of the next two years, the two
projects of establishing recognition under the IRA and receiving land
through the Bureau of Indian Affairs proceeded, when suddenly, in 1936,
the land acquisition proposal was shifted from the BIA to the Rural
Resettlement Administration, and the land that was to be purchased
solely for Lumbee use, was opened to non-Indians. After a lengthy
struggle, Brooks was able to have a part of the land set aside for
tribal members, and incorporated under the name of the Red Banks Mutual
Association.
The Tribe was no more successful in achieving recognition under the
IRA. The BIA formed a commission of three to investigate the blood
quantum of the Lumbees. In 1936, Dr. Carl C. Seltzer, an anthropologist
and member of the commission, visited Robeson County on two occasions
and took physical data on 209 Indians applying for recognition as one-
half or more Indian blood. He found that twenty-two met the criteria.
They were certified by the Secretary of the Interior. What made
Seltzer's work so ludicrous was that in several cases he identified
full siblings in different ways, one meeting the blood quantum
requirement and the other not.
It was not until after the Second World War that the Lumbees again
tried to achieve federal recognition of their status as an Indian
tribe. The issue of their name continued to cause them problems so, in
1952, the Lumbee leadership conducted a referendum on the name. Of
2,144 tribal members who voted, all but 35 favored the use of the name
``Lumbee,'' derived from the Lumber River upon which they had always
dwelled. Armed with this overwhelming support, the leader of the
movement, D.F. Lowry, asked the State Legislature to adopt the change.
The Legislature approved the name change in 1953. The Lumbee Tribe then
took its case to Congress, which in 1956 passed the Lumbee Bill.
There can be no doubt that for more than 200 years the Lumbees have
been continuously and repeatedly recognized as American Indians. This
was made explicit by the state in the 1880's and by the federal
government from at least the beginning of the twentieth century on.
Federal and state officials have, on numerous occasions, reviewed the
evidence and at no time have they questioned the fact that the Tribe
consisted of people of Indian descent. Federal reluctance to
acknowledge the Tribe centered on questions involving the extension of
services. It was unfortunate that each effort by the Lumbees to clarify
their federal status and to receive services coincided with federal
Indian policy shifts away from the trust relationship: the General
Allotment Act in 1887; the Citizenship Act of 1924; and the termination
policy of the 1950's. The exception, the Indian Reorganization Act,
which could have provided a means to recognition, was subverted by bad
anthropology and bureaucratic indolence.
RECENT LUMBEE HISTORY
Since the passage of the Lumbee Act, the Tribe has faced a steady
string of problems, beginning with an attempt by the Ku Klux Klan to
intimidate tribal members in 1958. The Tribe's reaction to this threat
was a spontaneous gathering that drove the Klansmen from the field and
broke up their rally, a confrontation that focused national attention
for a time on the Lumbee community. The tribal members have exerted
their influence in other ways. In the 1960's they organized voter
registration drives that made their influence felt on local politics,
electing members of the Tribe to state, county, and local public
offices. When the local school authorities attempted to integrate only
the black and Indian schools in the county, tribal members staged sit-
ins and filed lawsuits to prevent the loss of tribal control over the
schools. It must be understood that the school system was and is a key
and integral part of tribal identity, and any threat to the Tribe's
control would be resisted. And resisted it was!
While the Tribe was struggling to maintain its schools, it was
actively opposing the so-called ``double voting'' system, which allowed
whites in the towns (which had separate school districts) to vote with
whites in the county, who were in the minority, to maintain white
control over the county school system. The students in the county
school system were predominantly Indian and black. Tribal leaders took
the case to federal court, and after losing at the district court, won
a reversal at the court of appeals, thus ending double voting.
At about the same time, tribal leaders became involved in an issue
with high symbolic value to the Tribe. In 1972, the Board of Trustees
of Pembroke State University decided to demolish the main building on
the campus and replace it with another structure. Very quickly, a group
formed to ``Save Old Main.'' The group waged a statewide and national
campaign to save the building, and just at the point when it seemed
that they would be victorious, the building was burned to the ground.
The Tribe overcame this blow and campaigned hard for the reconstruction
of Old Main, which they eventually accomplished. The building was
completed in 1975 and is now the site of the University of North
Carolina at Pembroke's Native American Resource Center.
Since the end of World War II, the Tribe has grown in stature and
influence. It was a primary mover in the establishment of North
Carolina Commission of Indian Affairs, an organization that has become
a model for state Indian commissions. The Lumbees have played an
instrumental role in county affairs, where they have represented a
moderating influence.
THE LUMBEE COMMUNITY TODAY
The Lumbees are held together by the same mechanisms and values
that have kept them together for the past one hundred years or more,
mechanisms and values that are typically Indian. First and foremost is
the family, which serves as the center of Lumbee social activities.
There is continual and widespread visiting among adults, particularly
in the homes of parents and grandparents. Often, children live near
their parents on land that was part of the family homestead. Members of
families speak to and visit each other on an almost daily basis.
The knowledge that the average Lumbee has of his or her kin is
truly astounding. It is very common for individuals to be able to trace
their parents' genealogies back five or more generations. Not only are
individuals able to name their grandparents, great grandparents, great
great grandparents etc., but often they can name the siblings of their
ancestors, the spouses of their ancestors' siblings, relate where they
lived in Robeson County, the church they attended, and the names of
their offspring. It is common for an individual to name two or three
hundred individuals as members of the immediate family. Every year
there are family reunions that attract members from all over the
country. They vary in size from small gatherings of a few hundred close
kin to reunions involving a thousand or more persons.
This kinship pattern is well-illustrated by the mapping of all
Lumbee heads of household based upon the 1850 federal census that I
prepared for the Tribe's petition for federal acknowledgment. I
identified 168 households headed by Lumbees in 1850. These heads of
household are the ancestors of present-day Lumbees and include
descendants of the Locklear extended family documented on the old
Cheraw field in 1790. The households were clustered in what is the core
area today of the Lumbee Tribe; in some areas, such as the Prospect
community, the area was almost exclusively Lumbee. The households
showed an extremely high rate of in-marriage, resulting in complex and
multiple kinship and marriage ties among the members--a pattern that
continues today as discussed below.
The same kinship pattern is reflected in the list of tribal leaders
who appeared on the 1887 petition to the state and the 1888 petition to
the Congress. When these individuals' relationships, both marital and
kin, are mapped, it again reveals a remarkably tight community. There
are multiple ties, as shown by the chart submitted by the Tribe with
its petition for federal acknowledgment. Thus, the high rates of
marriage and geographic concentration of tribal members shown today, as
discussed below, were evident in 1790 and 1850.
Religion also serves to maintain the social boundaries of the
Lumbee Tribe. By social boundaries, I mean that there are membership
rules, special beliefs and values, a unique history, and a system of
political authority and decisionmaking that marks the Lumbees as a
separate community. There are more than 130 Lumbee Indian churches in
Robeson County, and with one or two exceptions, each has a Lumbee
minister. Church membership crosses family lines and settlement areas,
thus drawing together different sectors of the Tribe.
For the Lumbees, church is more than a religious experience; it is
one of their most important social activities. It involves many of them
on a daily basis. The churches have Sunday schools, youth
organizations, senior citizens' programs, Bible study programs, and
chorus practices, to mention but a few of the activities available. It
is common for members of the same household to attend different
churches, and this behavior further acts to bring the tribal membership
together.
An additional and important activity of the churches is to hold an
annual ``homecoming'' during the fall. The event is well-advertised and
individuals come from great distances to attend. Homecomings are held
on Sundays after church service and are open to all Lumbees. Families
and friends gather in a church's fellowship hall and share a leisurely
meal together. Commonly, there are several hundred tribal members in
attendance. Homecomings are informal gatherings which offer
opportunities for members of a family from different congregations to
join with other families.
The family and the churches also provide the main avenues for
political participation. In studying the Lumbee community, it is clear
that leadership over the years has tended to surface in the same
families from generation to generation, something like a system of
inherited leadership. These leaders have gained prominence through
their participation in the educational system and as church leaders. In
the past, many of the Tribe's most dynamic leaders were ministers and
teachers. Today, there are other avenues for the demonstration of
leadership qualities, but family, education and religious values still
command attention.
The importance of the role played by the Lumbee churches in the
political life of the Tribe cannot be overstated. During the 1990s, it
was the leadership from the churches that initiated and sustained the
process for preparing a tribal Constitution. The delegates to the
Constitutional Convention were selected by the churches and represented
every segment of the Tribe. After nearly ten years of meetings,
negotiations, court actions, and redrafts, the Constitution was
presented to the tribal members for their approval. On November 6,
2001, the tribal members voted on the Constitution. Eighty-five [85]
percent of those voting voted in favor of adoption. The approved
Constitution is recognized by the State of North Carolina, and it is
the Tribe's governing document.
Lumbee Tribe of North Carolina and The Federal Acknowledgment
Regulations
The United States Department of the Interior regulations (25 CFR
Part 83) for ``Establishing That an American Indian Group Exists as an
Indian Tribe'' has seven mandatory criteria. They are:
(a) identification as an American Indian entity on a substantially
continuous basis since 1900;
(b) a predominant portion of the petitioning group comprises a
distinct community and has existed as a community from historical times
until the present;
(c) the petitioner has maintained political influence or authority
over its members as an autonomous entity from historical times until
the present;
(d) a copy of the group's present governing document including its
membership criteria;
(e) the petitioner's membership consists of individuals who descend
from a historical Indian tribe or tribes which combined and functioned
as a single autonomous political entity;
(f) the membership of the petitioning group is composed principally
of persons who are not members of any acknowledged North American
Indian tribe; and
(g) Neither the petitioner nor its members are the subject of
congressional legislation that has expressly terminated or forbidden
the Federal relationship.
The 1956 Lumbee Act forbids the Federal relationship, making the
Tribe ineligible for the administrative process. Were the Tribe
eligible for the process, the historical record summarized above
demonstrates that the Tribe satisfies all other criteria for
acknowledgment.
Criterion (a) Identification as an Indian entity
This criterion can be met by showing evidence of federal, state, or
county relationships, or identification by historians or social
scientists, in books or newspapers, or by relationships with other
tribes or national, regional or state Indian organizations. There are
repeated and numerous identifications of the Lumbee Tribe as an Indian
entity since 1900, as shown in the summary of the Tribe's efforts to
obtain federal recognition above. There can be no serious question that
the Lumbee Tribe can and has demonstrated this criterion.
Criterion (b) Community
This criterion provides a number of ways to demonstrate community,
foremost among these are rates of marriage and residency patterns. The
regulations provide that an Indian group has conclusively demonstrated
this criterion by proof that 50 percent or more of its members reside
in a geographical area composed exclusively or almost exclusively of
tribal members, or that at least 50 percent of its members are married
to other tribal members. These are the so-called high evidence
standards. The Lumbee members meet both of these standards, thereby
proving community conclusively.
To determine the residency and marriage rates for the contemporary
period, a 1 percent systematic sample was drawn from the membership
files in December 2002. Of the 543 files drawn, 29 were found to
contain the name of deceased individuals, or were missing from the
files, leaving a balance of 514 files. This corresponds closely with
the number of active members (52,850) as reported to the Lumbee Tribal
Council in December 2002.
The residency pattern of the Lumbee Tribal members is divided into
three categories: core area where the tribal members live in either
exclusively or nearly exclusively Lumbee geographical areas; those
living somewhere in North Carolina; and those living elsewhere.
Included in the first category are the following communities in Robeson
County: Pembroke, Maxton, Rowland, Lumberton, Fairmont, St. Paul's, and
Red Springs. Within these communities are areas that are exclusively
(or nearly so) occupied by Lumbees. These areas are reflected on the
attached map.
The data show that of the 511 for whom there was residency data,
330 (64.6%) live in the core area. One hundred and two (19.9%) live in
the State of North Carolina, and the 79 (15.4%) live elsewhere, almost
all of them in the United States. This means that even without other
data on community the Lumbee Tribe of North Carolina meets the high
evidence standard of criterion (b)for the contemporary period. It also
satisfies criterion (c)--political--for the same period. Based on
census and other data, it is certain that the Tribe would meet the same
high standard for the preceding periods, going back well into the
nineteenth century, or as far as there are data available.
A second type of high evidence has to do with intratribal marriage.
Using the same sample, there were 276 records that provided information
on the age and marital status of individuals. Of these, 49 were younger
than 16, the age selected as marriageable. Another 23 were identified
as single, leaving 204 with known marriage partners. Of this number 143
(70%) were married to another Lumbee tribal member. Of the remaining
61, 59 were married to non-Indians and 2 were married to members of
other tribes. Once again, the Lumbee Tribe of North Carolina meets the
standard of high evidence for the contemporary period under criterion
(b) and also criterion (c) for the same period. As with residency,
based on census and other data, it is certain that the Tribe would meet
the same high standard for the preceding periods, going back well into
the nineteenth century, or as far as there are data available.
In addition, the Lumbee Tribe of North Carolina organized, ran, and
largely financed its own school system and teacher's training college
for nearly one hundred years. It has had and continues to have a
complex network of churches that exclusively or nearly exclusively
serve the tribal members. Many of these churches are tied together by
three organizations--the Burnt Swamp Baptist Association (60 churches),
the North Carolina Conference of the Methodist Church (12 churches),
and the Lumber River Holiness Methodist Conference (9 churches.) The
others are non-affiliated. Presently, there are in excess of 130
churches in Robeson County exclusively serving the Lumbee people and
their spouses.
These facts demonstrate conclusively that the Lumbees have existed
from historical times to the present as a community.
Criterion (c) Political
The regulations provide that if community is proven by high
evidence as exhibited by the Lumbee community, this is considered
conclusive proof of political authority as well. The strength of the
Lumbee Tribe's political leadership is also demonstrated by Lumbee
history.
The Lumbee history is one of continual resistance to outside
domination, beginning in the eighteenth century. In 1754, the ancestors
of the Lumbees were described as a community of 50 families living on
Drowning Creek, ``mixt Crew [or breed] a lawless people.'' In 1773,
they were identified as ``A List of the Mob Railously Assembled
together in Bladen County [later subdivided to create Robeson
County].'' In the 1830s, Lumbees opposed the laws limiting their
freedoms, and in the Civil War and Reconstruction years, under the
leadership of Henry Berry Lowerie, they actively opposed, first the
Confederate government, and later the United States.
Following Reconstruction, in the 1880s, the Lumbee leadership
sought and gained state recognition (1885) and the establishment of a
separate school system, a school system that they ran through locally
elected school boards. In 1887, 67 ancestors of the Tribe petitioned
the North Carolina Legislature to establish a separate teacher training
school for the Lumbees.
During the twentieth century, tribal leaders repeatedly petitioned
the Congress for federal recognition. Finally, in 1956, after an active
campaign by tribal leaders, a tribal referendum adopting the name
Lumbee, and the passage of state legislation in 1953 adopting the
Lumbee name for the Tribe recognized in earlier state legislation, the
United States Congress passed legislation in 1956 recognizing ``the
Indians in Robeson and adjoining counties of North Carolina ... as
Lumbee Indians of North Carolina.'' These efforts to achieve state and
federal recognition, along with the control of the schools and
teacher's college, demonstrate the presence of a strong leadership in
the Lumbee community.
From the 1960s on, the Lumbee leadership sought to maintain control
over their schools and college, and when that was no longer possible,
to share political power in Robeson County. They instituted lawsuits to
abolish double voting, fought to save the college's main administration
building, and when that burned down, to have it rebuilt, and elect
Lumbee leaders to county positions. The Tribe submitted a petition for
federal recognition under 25 CRF 83. Finally, beginning in 1993, the
Tribe began the process that eventually led in 2002 to the present
Constitution and tribal government. The process started with funds from
a Methodist Church grant, the delegates were chosen from the
participating churches, and the process was deeply influenced by church
leaders. The results were overwhelming endorsed by the tribal
population in two referenda--1994 and 2001.
The evidence presented here in summary form demonstrates that the
Lumbee Tribe of North Carolina has had a continuous political
leadership from sustained contact and would meet criterion (c).
Criterion (d) Governance
This criterion requires that a petitioner submit either a statement
describing its system of governance or its governing document. By the
adoption of a tribal Constitution, one that has been recognized by the
State of North Carolina, the Tribe clearly demonstrates this criterion.
Criterion (e) Descent from a historical tribe or tribes
The eighteenth-century records that exist show a Cheraw community
precisely where the Lumbees reside today, and they show that this
Cheraw community had the same surnames as those common to the modern-
day Lumbee community. A 1725 map made by John Herbert showed the Tribe
between the Pee Dee River and Drowning Creek, now called the Lumber
River. In 1737, John Thompson purchased land in the same general area
from the Cheraw, and in 1754, Governor Arthur Dobbs of North Carolina
identified on ``Drowning Creek on the head of Little Pedee 50 families
a mixt Crew [or Breed] a lawless people filled the lands without patent
or paying quit rents shot a Surveyed for coming to view vacant lands
being enclosed by great swamps.'' A document written in 1771 refers to
``the Charraw Settlement'' on Drowning Creek, and another document
dated 1773 contains a list of names that connect this community to the
Cheraw in 1737. Some of the same surnames as today's Lumbee population
appeared on the list: Ivey, Sweat, Groom, Locklear, Chavis, Dees, and
Grant (see Dr. James H. Merrill letter to Congressman Charlie Rose,
October 18, 1989, for further discussion). Thus, the community
mentioned in the two references cited in above and the community of
Indians described in nineteenth century documents were the same, and
were the antecedents of today's Lumbee Tribe.
As to criterion (e), Dr. John R. Swanton, a member of the staff of
the Bureau of American Ethnology, a federal government agency, and one
of the nation's foremost anthropologists and experts on American Indian
tribes, particularly in the southeast, concluded in the early 1930s
that the Lumbees are descended predominantly from Cheraw Indians. The
Department of the Interior adopted this position in its 1934 statement
to Congress on one of the proposed recognition bills, relying on Dr.
Swanton's report. This has also been confirmed and supported by
scholars, such as Dr. William C. Sturtevant, Chief Ethnologist of the
Smithsonian Institution and General Editor of the Handbook of American
Indians, Dr. James Merrell, Professor of History, Vassar College, and a
leading authority on the colonial Carolinas, Dr. Raymond Fogelson,
Professor of Anthropology, University of Chicago, a leading authority
on the Cherokee and Indians of the southeast, and myself.
Criterion (f) Petitioner's members are not members of any federally
recognized tribe
The members of the Lumbee Tribe of North Carolina are not members
of any federally recognized tribe. This can be demonstrated by a review
of the Tribe's genealogical data.
Criterion (g) The petitioner has not been the subject of a federal
termination act
The Solicitor for the Department of the Interior has determined
that the 1956 Lumbee Act is an act forbidding the federal relationship.
SUMMARY
Typically, Indian tribes petitioning for acknowledgment under the
administrative process have most difficulty with criteria (b) and (c),
community and political authority respectively. Every tribe that has
been denied acknowledgment through the process to date has failed
because of the inability to prove these criteria, and perhaps others.
As demonstrated above, the Lumbee Tribe's case on these criteria is so
strong as to be conclusive. In light of the heavily documented history
of the Tribe since 1900, neither can there be any doubt about the
Tribe's ability to demonstrate the other criteria.
In the past few years, the Bureau of Indian Affairs has opposed
bills to recognize the Lumbee. The Bureau has complained that there is
too little data, specifically that a genealogical link between the
Cheraw Tribe on Drowning Creek and the present-day Lumbee Tribe on the
renamed Lumber River cannot be made, despite the occurrence of shared
and uncommon surnames. Of course, the failure of the dominant society
to record the births and deaths of Lumbees over the centuries is no
fault of the Tribe; nor does this absence suggest that the Lumbee Tribe
is not descended from the Cheraw Tribe. In fact, the Department
testified in 1934 that the Tribe was descended from the Cheraw Tribe,
based upon the work of the eminent Dr. Swanton. The Department's
earlier opinion is also corroborated by the professional opinions of
Drs. Sturtevant, Merrill, Fogelson, and Campisi. Thus, the Department's
more recent view should be taken as more intellectual curiosity than
serious doubt about the origins of the Tribe. And this new found
curiosity should be judged in the context of the Department's long-
standing determination to oppose recognition of the Tribe, even in the
face of its past judgment that the Lumbees truly are an Indian tribe.
The extensive record of the Tribe's history in the eighteenth,
nineteenth, and twentieth centuries establish that the Lumbee Indians
constitute an Indian tribe as that term is defined in the Department of
the Interior's acknowledgment regulations. The Tribe fails only on the
last criterion, that is, Congress has prohibited the Department from
acting on the Tribe's petition in the 1956 Lumbee Act. Thus, the
Congress can act on Congressman McIntyre's bill with full confidence
that the Lumbees are, in fact, an Indian tribe.
______
The Chairman. Thank you.
Ms. Locklear.
STATEMENT OF ARLINDA F. LOCKLEAR, ESQ.,
ATTORNEY FOR THE LUMBEE TRIBE OF NORTH CAROLINA
Ms. Locklear. Thank you, Mr. Chairman. It is my privilege
to appear before the Committee today, not only as the tribal
attorney representing the Lumbee Tribe of North Carolina, but
also in full disclosure and all fairness as an enrolled member
of the tribe as well.
Let me start by first expressing the tribe's deep
appreciation to Senator Dole and Congressman McIntyre. Not only
are they our champions in both the House and the Senate; they
made a particularly gracious move this morning by allowing
members of the tribe to take their reserved seats as witnesses.
This was necessary, because the Lumbee Tribe lacked the
resources to pay for lineholders, such as the Eastern Band did
this morning, to ensure that Lumbees could actually see the
hearing on the Lumbee recognition bill. Thank you very much for
that kind gesture.
Let me start by saying that the Lumbee are unique in a
number of respects. Dr. Campisi has talked about the State
recognition of the tribe. The State recognition of the Lumbee,
as he indicated, began in 1885. From that time, 1888, up until
today, the Lumbee Tribe has continuously sought Federal
recognition from the Congress. It has done so in the form of
bills. It has also done so in the form of administrative
processes before the Department of Interior.
The current process is not magic in that regard. It is only
the current process. As a number of witnesses have indicated,
that result of a 100 year study has produced this documentary
record on the Lumbee Tribe.
The names that have been referred to, as Dr. Campisi
indicated, have been names imposed by the State of North
Carolina, not names voluntarily adopted by the Lumbee Tribe. As
an example, let me show you Mr. Locklear, to my left,
identified in the Smithsonian files as a member of the Croatan
Tribe around the period 1911. His name is Aaron Locklear. Aaron
Locklear is an ancestor of mine. I am an enrolled member of the
Lumbee Tribe that descends from Mr. Locklear, who was
identified by the Smithsonian and the State of North Carolina
as a Croatan Indian.
That name was changed in 1911 to Indians of Robeson County.
It was changed again by the State of North Carolina in 1913 to
the Cherokees of Robeson County. The tribe itself became
dissatisfied with that State-imposed designation, largely as a
result of the Department's own studies which identified in 1934
the tribe as, indeed, descended from the historic Cheraw
Indians.
Largely at the demand of the tribe, the State of North
Carolina conducted finally a referendum among the Lumbee people
in 1952, where the Lumbee, for the first time, adopted their
own name as Lumbee. The name derives from the Lumber River,
where we have been since it was named that in 1809, changed
from Drowning Creek, where we were in 1737 as the Cheraw
Indians. There is no question that the modern day Lumbee
Indians are the same Indians that had those various names, and
the same Indians that descend from the Cheraw Tribe.
One additional comment on the 1956 Act. When the Congress
finally did act, it did so again at the urging of the
Department of the Interior to include particular language for
the Lumbee Tribe. It's important to note that the reason all of
those bills failed to that point was not because of lack of
Indian identity, not because the Lumbees were not Indian, but
because the Department of the Interior opposed each and every
bill. The Department of the Interior has opposed recognition of
the Lumbee Tribe for more than 100 years. And at the urging of
the Department of the Interior, when Congress finally did act
in 1956, the Congress did this peculiar thing that we've all
noted, of putting the tribe half in and half out of the Federal
relationship, once again at the urging of the Department,
leaving the tribe in an anomalous position that only one other
tribe in the history of Federal Indian policy has ever been
placed, and that was the Tiwas of Texas.
There has been some comment made that their situation was
different from the Lumbee. The legislative history of the 1968
Tiwa Act shows that is not the case. The 1968 Tiwa Act, in its
legislative history, explicitly says that it was modeled on the
1956 Lumbee Act. Because the Congress fixed the Tiwa situation
in the 1987 Act of Congress, the Congress should fix the
situation for the Lumbee Indians and finally recognize the
tribe.
Now, finally, let me comment very briefly on some of the
tribal characteristics that some of the witnesses have talked
about earlier today. With respect to the Eastern Band of
Cherokee, we are very pleased for them that they've had the
opportunity to retain their language. The Lumbee,
unfortunately, have not. Most eastern tribes have not,
including most of the eastern tribes recognized by the
Department of the Interior in its administrative process. I can
identify those for the Committee.
Thank you for the time.
[The prepared statement of Ms. Locklear follows:]
Statement of Arlinda F. Locklear, Patton Boggs LLP, Of Counsel,
Attorney for the Lumbee Tribe of North Carolina
It is my privilege to make this statement as counsel for the Lumbee
Tribe of North Carolina in support of H.R. 898, a bill to extend full
federal recognition to the Tribe. This is an exciting time for the
Tribe, a time of genuine hope that, after more than one hundred years
of study and process, the Lumbee Tribe may achieve its goal of federal
recognition. The Tribe expresses its gratitude to Congressman McIntyre
for his leadership and tireless efforts on the Tribe's behalf, and the
Tribe is gratified by the strong support for the bill shown by the
large number of members who have agreed to co-sponsor Mr. McIntyre's
bill. The Tribe is also grateful to the Chairman and this committee for
the opportunity to make its case at the hearing today--a truly
compelling case for federal recognition.
The hundred year legislative record on Lumbee recognition
In one form or another, Congress has deliberated on the status of
the Lumbee Tribe of North Carolina for more than one hundred years. On
numerous occasions during that time, Congress has itself or directed
the Department of the Interior to investigate the Tribe's history and
conditions. On all such occasions, the Tribe's Indian identity and
strong community have been underscored.
Congress' first experience with the Tribe followed shortly upon the
heels of formal recognition of the Tribe by the State of North Carolina
in 1885. The 1885 state statute formally recognized the Tribe under the
name Croatan Indians of Robeson County, authorized the Tribe to
establish separate schools for its children, provided a pro rata share
of county school funds for the Tribe's schools, and authorized the
Tribe to control hiring for the schools and eligibility to attend the
schools. See North Carolina General Assembly 1885, chap. 51. Two years
later, tribal leaders sought and obtained state legislation
establishing an Indian normal school, one dedicated to training Indian
teachers for the Indian schools. See North Carolina General Assembly
1887, chap. 254. The Indian Normal School was badly underfunded,
though, leading to the Tribe's first petition to Congress for
recognition and assistance in 1888.
The 1888 petition to Congress was signed by fifty-four (54) tribal
leaders, including all members of the Indian Normal School Board of
Trustees. All the traditional Lumbee surnames are represented in the
list of signatories--Sampson, Chavis, Dial, Locklear, Oxendine, and
others--and descendants of these signatories are active today in the
tribal government. The petition sought federal assistance for the then
named Croatan Indians in general and funding for the Tribe's schools in
particular. Congress referred the petition to the Department of the
Interior, which investigated the Tribe's history and relations with the
state. The Commissioner of Indian Affairs ultimately denied the request
for funding, citing insufficient resources:
While I regret exceedingly that the provisions made by the
State of North Carolina seem to be entirely inadequate, I find
it quite impractical to render any assistance at this time. The
Government is responsible for the education of something like
36,000 Indian children and has provision for less than half
this number. So long as the immediate wards of the Government
are so insufficiently provided for, I do not see how I can
consistently render any assistance to the Croatans or any other
civilized tribes.
Thus began the Department's long-standing opposition to federal
recognition of the Lumbee Tribe, typically because of the cost of
providing services.
After the failure of the 1888 petition to Congress, the Tribe
sought recognition more directly through proposed federal bills. In
1899, the first bill was introduced in Congress to appropriate funds to
educate the Croatan Indian children. See H.R. 4009, 56th Cong., 1st
Sess. Similar bills were introduced in 1910 (See H.R. 19036, 61st
Cong., 2d Sess.) and 1911 (See S. 3258, 62nd Cong., 1st Sess.) In 1913,
the House of Representatives Committee on Indian Affairs held a hearing
on S. 3258 where the Senate sponsor of the bill reviewed the history of
the Lumbees and concluded that the Lumbees, then called Croatans, had
``maintained their race integrity and their tribal characteristics;''
See Hearings before the Committee on Indian Affairs, House of
Representatives on S. 3258, Feb. 14, 1913. In response to the same
bill, the Department of the Interior dispatched C.F. Pierce, Supervisor
of Indian Schools, to conduct an investigation of the Croatan Indians.
Pierce reviewed the Tribe's history, acknowledged their Indian ancestry
and the strength of their community, but recommended against federal
assistance for the Tribe:
It is the avowed policy of the Government to require the states
having an Indian population to assume the burden &
responsibility for their education as soon as possible. North
Carolina, like the State of New York, has a well organized plan
for the education of Indians within her borders, and I can see
no justification for any interference or aid, on the part of
the Government in either case. Should an appropriation be made
for the Croatans, it would establish a precedent for the
Catawbas of S.C., the Alabamas of Texas, the Tuscaroras of
N.Y., as well as for other scattering tribes that are now cared
for by the various states.
Those other tribes mentioned by Pierce have since been recognized by
the United States.
In 1914, the Senate directed the Secretary of the Interior to
investigate the condition and tribal rights of the Lumbee Indians and
report to Congress thereon. See S.Res. 410, 63rd Cong., 2d Sess. The
Secretary assigned Special Indian Agent O.M. McPherson to conduct the
investigation. According to the Secretary's letter to the President of
the Senate transmitting the McPherson report, McPherson conducted ``a
careful investigation on the ground as well as extensive historical
research.'' The report covered all aspects of the Tribe's history and
condition, running 252 pages in length. See Indians of North Carolina,
63rd Cong., 3d Session, Doc. No. 677. McPherson's report again
confirmed the tribal characteristics of the Lumbee Indians, but
Congress took no action on the McPherson report.
In 1924, yet another bill was introduced in Congress to recognize
the Lumbee Indians as Cherokee Indians of Robeson County. See H.R.
8083, 68th Cong., 1st Sess. This bill failed and in 1932 a very nearly
identical bill was introduced in the Senate. See S. 4595, 72d Cong.,
1st Sess. This bill failed as well.
The next federal bill was introduced in 1933 and was nearly
identical to the prior two bills, except that it directed that the
Croatan Indians ``shall hereafter be designated Cheraw Indians and
shall be recognized and enrolled as such...'' H.R. 5365, 73d Cong., 1st
Sess. In his statement at the hearing on the bill, the Secretary of the
Interior attached an opinion of John Swanton, a well-respected
specialist on southeastern Indians with the Smithsonian Institution,
which concluded that the previously named Croatan Indians actually
descended from Cheraw and other related tribes. 1 The
Secretary recommended that the United States recognize the Tribe as the
Siouan Indians of Lumber River, but also that the Congress include
termination language because of the expense of providing federal Indian
services to the Indians. Rep.No.1752, House of Representatives, 73d
Cong., 2d Sess. The committee adopted the change proposed by the
Secretary and reported the bill out favorably, but the bill was not
enacted. The following year, the Senate Committee on Indian Affairs
took the same action on the identical bill in the Senate, S. 1632, but
the Senate floor also did not act on the bill. See Rep.No.204, Senate,
73d Cong., 2d Sess.
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\1\ The Secretary adopted the view at the time that the Lumbee
Tribe is descended from the Cheraw and other Siouan speaking related
tribes based upon Dr. Swanton's study. In recent times, Department
staff that administers the administrative acknowledgment process have
expressed some concern about the absence of a genealogical connection
between the modern day Lumbee Tribe and the historic Cheraw Tribe.
Unfortunately, births and deaths of tribal members simply were not
recorded by the dominant society in the early 1700's so that a
genealogical connection cannot be made. Nonetheless, the historical
connection is clear--the Cheraw Tribe was located precisely where the
Lumbee Tribe is today and the Cheraw Tribe had the same surnames
typical of the Lumbee Tribe today, such as Locklear, Chavis, Groom and
others. Thus, there can be no doubt that the Department had it right in
1934 when it concluded that the Lumbee Tribe is descended from the
historic Cheraw Tribe.
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These numerous federal bills to recognize the Tribe under various
names have a common and clear legislative history--that is, state
statutes that modified the name by which the State of North Carolina
recognized the Tribe. The 1899 federal bill would have recognized the
Tribe as Croatan, just as the State had done in 1885. The 1911 federal
bill would have recognized the Tribe as the Indians of Robeson County,
just as the State had done in a 1911 amendment to state law. See North
Carolina General Assembly 1911, chap. 215. The 1913 federal bill would
have recognized the Tribe as Cherokee, just as the State had done in a
1913 amendment to state law. See North Carolina General Assembly 1913,
chap. 123. Indeed, a committee report on the 1913 federal bill
explicitly acknowledged that the federal bill was intended to extend
federal recognition on the same terms as the amended state law.
Rep.No.826, House of Representatives, 68th Cong., 1st Sess.; see also
S. 4595, 72d Cong., 1st Sess. [1932 bill which referred to the 1913
state statute as its antecedent.] Thus, Congress consistently followed
the lead of North Carolina in its deliberations on the Tribe's status
and did so in finally enacting a federal bill in 1956. 2
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\2\ In between the 1933 bill and the 1956 Lumbee Act, the Tribe
attempted to obtain federal recognition through an earlier
administrative process. Congress enacted the Indian Reorganization Act
in 1934, which authorized half-blood Indians not then recognized to
organize and adopt a tribal constitution, thereby becoming federally
recognized. The Lumbee leadership wrote to the Commissioner of Indian
Affairs, inquiring whether the Act applied to the Lumbees. The inquiry
was referred to Associate Solicitor Felix Cohen, the famous author of
the foremost treatise on Indian law, the Handbook of Federal Indian
Law. Cohen concluded that the Lumbees could organize under the Act, if
some members certified as one-half Indian blood or more and the
Department approved a tribal constitution. The Tribe immediately asked
the Department to make that inquiry and the Department dispatched Dr.
Carl Seltzer, a physical anthropologist, for that purpose.
Approximately 200 Lumbees agreed to submit to Dr. Seltzer's
examination; interviews of these individuals were conducted as well as
physical examinations. Dr. Seltzer certified 22 out of the 200 tribal
members as one-half or more Indian blood, eligible to organize under
the Act. However, the Department refused to approve a tribal
constitution submitted by those individuals, once again thwarting the
Tribe's effort to become federally recognized.
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In light of the mounting historical evidence compiled in Congress'
deliberations on its recognition bills, including the McPherson Report
and the Swanton opinion, the Indians of Robeson County grew
dissatisfied with their designation under state law as Cherokee. Under
pressure from the Tribe and after a referendum among tribal members,
the State of North Carolina once again modified its recognition of the
Tribe in 1953, renaming it Lumbee. North Carolina General Assembly
1953, chap. 874. Two years later, a bill identical to that one enacted
by the state was introduced in Congress. See H.R. 4656, 84th Cong., 2d
Sess.
The federal bill passed without amendment in the House of
Representatives and was sent to the Senate. The Department of the
Interior objected to the bill in the Senate, just as it had done in the
House, but with more success. The Secretary noted that the United
States had no treaty or other obligation to provide services to these
Indians and said:
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....If your committee should recommend the enactment
of the bill, it should be amended to indicate clearly that is
does not make these persons eligible for services provided
through the Bureau of Indian Affairs to other Indians.
The Senate committee adopted the Secretary's recommendation and, when
the bill was enacted into law, it contained classic termination
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 Indian shall be
applicable to the Lumbee Indians.'' Pub.L.570, Act of June 7, 1956, 70
Stat. 254.
Clearly, the 1956 Lumbee Act was intended to achieve federal
recognition for the Tribe. The House sponsor for the bill wrote to
Senator Scott, seeking his support for the bill, and noted that the
bill was copied from the recent state law by which the State of North
Carolina recognized the Lumbee Tribe. Senator Scott, who agreed to
sponsor the bill in the Senate, issued a press release describing the
bill as one to give federal recognition to the Lumbee Indians of North
Carolina on the same terms that the State of North Carolina had
recognized the Tribe in 1953. Of course, the termination language added
before enactment precluded the extension of the federal trust
responsibility and federal services to the Tribe. Thus, Congress
simultaneously recognized and terminated the Tribe.
Since 1956, federal agencies and courts have reached varying
conclusions regarding the effect of the 1956 Lumbee Act. In 1970, the
Joint Economic Committee of Congress described the Lumbee as having
been officially recognized by the Act, although not granted federal
services. See ``American Indians: Facts and Future,'' Toward Economic
Development for Native American Communities, p. 34 (GPO 1970). Also in
1970, the Legislative Reference Service of the Library of Congress
described the 1956 Lumbee Act as legislative recognition of an Indian
people. See Memorandum, April 10, 1970, on Extending Federal
Jurisdiction and Services to Hill 57 Indians, LRS, Library of Congress.
And in 1979, the Comptroller General ruled that the 1956 Act left the
Lumbees' status unchanged, i.e., it neither recognized the Tribe nor
terminated the Tribe's eligibility for services it might otherwise
receive. The one court to construe the statute concluded it was
intended ``to designate this group of Indians as ``Lumbee Indians'' and
recognize them as a specific group..,'' but not to take away any rights
conferred on individuals by previous legislation. Maynor v. Morton, 510
F.2d 1254, 1257-1258 (D.C. Cir. 1975) [holding that the so-called half-
bloods certified under the Indian Reorganization Act were eligible to
receive Bureau of Indian Affairs' services].
The Congressional Research Service (CRS) thoroughly reviewed the
history and various interpretations of the 1956 Lumbee Act in 1988. It
did so in response to a request from the Senate Select Committee on
Indian Affairs, which had under consideration at the time H.R. 1426, a
bill to provide federal recognition to the Lumbee Tribe. The CRS
concluded as follows:
The 1956 Lumbee legislation clearly did not establish
entitlement of the Lumbee Indians for federal services. It also
clearly named the group and denominated them as Indians.
Without a court decision squarely confronting the issue of
whether the 1956 statute confers federal recognition on the
Lumbee, there is insufficient documentation to determine if the
statute effects federal recognition of the Lumbees. It is,
however, a step toward recognition and would be a factor that
either the Department of the Interior or a court would have to
weigh along with others to determine whether the Lumbees are
entitled to federal recognition.
Memorandum dated September 28, 1988, reprinted in S.Rep.No.100-579,
100th Cong., 2d Sess.
Whatever its ambiguity otherwise, the 1956 Lumbee Act indisputably
makes the Lumbee Tribe ineligible for the administrative acknowledgment
process. See 25 C.F.R. Part 83. Under the acknowledgment regulations,
the Secretary of the Interior cannot acknowledge tribes that are
subject to legislation terminating or forbidding the federal
relationship. Id., Sec. 83.3(e). In a formal opinion issued on October
23, 1989, the Solicitor for the Department of the Interior concluded
that the 1956 Lumbee Act is such federal legislation and, as a result,
the Department is precluded from considering any application of the
Lumbee Tribe for federal acknowledgment. A copy of the Solicitor's
opinion is attached.
Thus, the Tribe continued its efforts to obtain full federal
recognition from Congress. Companion bills were introduced in the 100th
Congress for this purpose, H.R. 5042 and S. 2672. Hearings were held on
the bills, once again establishing the Lumbee's tribal existence, and
the Senate bill was reported favorably out of committee. Neither bill
was enacted, however. Companion bills were introduced in the 101th
Congress to recognize the Tribe [H.R. 2335 and S. 901], but neither was
enacted. Once again in the 102d Congress, companion bills were
introduced [H.R. 1426 and S. 1036]. This time, the House of
Representatives passed the bill [with 240 yeas, 167 nays, and 25 not
voting], but the Senate failed to invoke cloture on debate [with 58
voting for and 39 voting against] and the bill failed. In the 103d
Congress, H.R. 334, a bill virtually identical to that passed in 1991,
was introduced; the bill passed the House again but was never acted on
in the Senate.
Legislative precedent for the bill
Only one other tribe in the history of federal Indian affairs has
been placed by Congress in precisely the same position as the Lumbee
Tribe, that is, half in and half out of the federal relationship, by
special legislation. 3 In 1968, Congress enacted a special
Act regarding the Tiwas of Texas, 82 Stat. 93, one that was modeled on
the 1956 Lumbee Act and left the Tiwas in the same legal limbo.
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\3\ There is a third tribe that was subject to similar
legislation--the Pascua Yaquis of Arizona. In 1964, Congress passed a
statute conveying federal land to the Pascua Yaqui Association, Inc.,
an Arizona corporation. See 78 Stat. 1195, Pub. L. 89-14. The final
section of this statute, like the Lumbee and Tiwa acts, provided that
the Yaqui Indians would not be eligible for federal Indian services and
none of the federal Indian statutes would apply to them. Congress has
since extended full federal recognition to the Pascua Yaqui. See 25
U.S.C. Sec. 1300f. The position of the Pascua Yaqui was somewhat
different from that of the Lumbees and Tiwas, since the earlier federal
statute involved a state corporation and arguably would not have
recognized a tribe, even without the termination language. Also, the
Pascua Yaqui recognition legislation was enacted in 1978, before the
administrative acknowledgment process was in place. Nonetheless, the
Department proposed that Congress repeal the 1964 Pascua Yaqui bill and
require that the Yaquis go through the soon to be established
administrative acknowledgment process. See S.Rep.No. 95-719, 95th
Cong., 2d Sess. 7, reprinted in 1978 U.S. Code Cong & Admin. News 1761,
1766. Congress refused to do so and enacted the recognition
legislation.
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Like the Lumbee Tribe, the Tiwas of Texas had been long recognized
by the state. In the 1968 Tiwa Act, Congress designated and recognized
the Indians as Tiwas, expressly terminated any federal trust
relationship, and precluded the delivery of federal Indian services--
just as it had done in the 1956 Lumbee Act. In fact, the Senate
committee specifically noted in its report on the 1968 Tiwa Act that
the bill was ``modeled after the Act of June 7, 1956 (70 Stat. 254),
which relates to the Lumbee Indians of North Carolina.'' S.Rep.No.1070,
99th Cong., 2d Sess. According to the Department of the Interior, this
1968 Tiwa Act made the tribe ineligible for administrative
acknowledgment, a decision that clearly presaged the Department's
construction of the 1956 Lumbee Act in 1989. Because of this unique
circumstance, the Department expressed no opposition to special
legislation extending full recognition to the Tiwas of Texas. In 1987,
Congress removed the Tiwas of Texas from the restrictions imposed upon
them in the 1968 Tiwa Act. Congress enacted the Ysleta del Sur Pueblo
Restoration Act, Pub.L. 100-89, Act of August 18, 1987, 101 Stat. 667,
to restore the federal trust relationship with the Ysleta del Sur
Pueblo of Texas, previously known as the Texas Tiwas. Just as the 1968
Tiwa Act created a special circumstance justifying special legislation
for that tribe, so does the 1956 Lumbee Act for the Lumbee Tribe.
Further, just as it did for the Tiwas of Texas, the Congress should
enact comprehensive legislation as proposed by the Lumbee Tribe,
legislation that resolves all related issues--status, service delivery
area, base roll, jurisdiction, etc. The Congress should not enact
another half measure, one that repeals the 1956 Lumbee Act and requires
administrative action on the Tribe under the acknowledgment regulations
for numerous reasons.
First, as a matter of fundamental fairness, the Congress should
deal with the Lumbee Tribe just as it has every other tribe in the same
situation, that is, by enacting recognition legislation where the tribe
is ineligible for the administrative process. Congress has never passed
special legislation that would require administrative action on a tribe
that is under present law ineligible for the administrative process.
The Lumbee Tribe is the last tribe in the country left in that
position. There is no legitimate reason to depart now from Congress'
legislative tradition in such circumstances, particularly since to do
so would impose a tremendous burden on the Tribe--first, obtaining the
passage of special legislation amending the 1956 Lumbee Act, and
second, subjecting the Tribe to the intrusive, time consuming, and
expensive administrative acknowledgment process.
Second, there is no good purpose to be served by sending the Lumbee
Tribe to the current administrative process. That process provides the
Department an opportunity to examine a group's history and community to
determine whether the group is, in fact, an Indian tribe. The
Department of the Interior and the Congress have already made that
inquiry with regard to the Lumbee Tribe on numerous occasions. In
response to the Tribe's repeated requests to Congress and the
Department for federal recognition, the Congress and the Department
have compiled a voluminous record on the Tribe's history and community.
Because that record plainly establishes the status of the Lumbee
Indians as an Indian tribe, further study of the Tribe would be a
considerable waste of time (between five and ten years time before
final agency action) and substantial waste of tribal and federal
resources (in the hundreds of thousands of dollars.)
Third, despite some suggestion to the contrary by other witnesses,
there is simply no magic to the current administrative acknowledgment
process. That process is not the source of all knowledge or wisdom
regarding the status of Indian tribes. To the contrary, the
overwhelming majority of tribes now recognized by the United States
were recognized by Congress. According to a GAO report, there were 561
federally recognized Indian tribes as of November 2001. Of those, 530
were recognized by Congress and 31 were recognized by the Department of
the Interior. Out of the 31 recognized by the Department of the
Interior, 10 were recognized before the 1978 regulations were adopted,
14 were recognized after 1978 and under those regulations, and 7 were
recognized after 1978 but without regard to the regulations. In short,
there is no historical or other necessity for subjecting the Lumbee
Tribe to the current administrative process.
Finally, given the hundred year history summarized above, the
Lumbee Tribe has every reason to be skeptical of unbiased and even-
handed treatment by the Department of the Interior. The Department has
successfully blocked federal recognition of the Tribe for over one
hundred years, both before Congress and administratively. It is simply
not realistic to expect the Department now to do what it has never been
able to do in the past--base its judgment about the Lumbee Tribe purely
on the facts and not on fiscal or other considerations.
For more than one hundred years now, the Lumbee Tribe has been
studied and ``processed.'' The record produced by these studies, even
those by the Department, consistently shows an independent Indian
community descended from Cheraw and related Siouan speaking tribes that
has existed from white contact until the present as a separate
community with known and visible leaders. Under present law, the Lumbee
Tribe can only be recognized by an Act of Congress. Legislative
precedent under these circumstances support the enactment of H.R. 898,
comprehensive recognition legislation, not another half measure.
Major provisions of H.R. 898
Congressman McIntyre's bill is appropriately structured as an
amendment to the 1956 Lumbee Act, thus allowing Congress to complete
the task it began in 1956. Specifically, the bill provides for:
explicit federal acknowledgment of the Tribe, including
the application to the Tribe of all laws of the United States of
general applicability to Indians and Indian tribes; 4
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\4\ One of the statutes generally applicable to Indian tribes is
the Indian Gaming Regulatory Act, 25 U.S.C. Sec. 2701 et seq [IGRA.]
This statute was enacted in 1988, exactly one hundred years after the
Lumbee Tribe first sought federal recognition. Clearly, the Lumbee
Tribe's quest is not motivated by gaming; neither has the Tribe
expressed any current interest in gaming. However, the Tribe strongly
believes that Congress should not pick and choose among statutes that
apply to it and subject it, once again, to second class treatment as
compared to other recognized Indian tribes. It should be noted, though,
that Congressman McIntyre's bill imposes greater restrictions on the
Tribe's ability to game under IGRA than on those tribes that are
recognized through the administrative process. H.R. 898 does not create
an Indian reservation; as a result, even if the Lumbee membership
authorized tribal leadership to negotiate a gaming compact with the
State (the Lumbee tribal constitution explicitly requires a special
tribal referendum to authorize such), land for such uses could only be
taken into trust by the Secretary of the Interior with the consent of
the Governor of North Carolina. In contrast, tribes acknowledged
through the administrative process can by-pass gubernatorial consent
through the designation of an initial reservation by the Secretary of
the Interior. 25 U.S.C. Sec. 2719(b)(1)(B)(ii).
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the eligibility of the Tribe and its members for all
programs, services, and benefits provided by the United States to
Indian tribes and their members, such services to be provided in the
Lumbees' traditional territory of Robeson, Cumberland, Hoke, and
Scotland Counties, North Carolina;
the determination of a service population, to be done by
the Secretary of the Interior's verification that all enrolled members
of the Tribe meet the Tribe's membership criteria; and
the granting of civil and criminal jurisdiction to the
State of North Carolina regarding the Lumbee Tribe, to insure
consistent and continuous administration of justice, until and unless
the State of North Carolina, the Tribe, and the United States, agree to
transfer any or all of that authority to the United States.
These are provisions typically found in recognition legislation and
reflect the federal policy of self-determination for Indian tribes.
Most importantly, it finally accomplishes the goal long sought by the
Lumbee people--treatment like every other recognized tribe in the
United States.
Conclusion
Congress and the Department of the Interior have over the last
century repeatedly examined the Tribe's identity and history and have
consistently found the Tribe to be an Indian community dating back to
the time of first white contact. There is no need for further study of
the Tribe's history. There is no need for another half measure by
Congress. There is need for an Act of Congress that comprehensively and
once and for all addresses the status of the Lumbee Tribe and all
related issues. On the Tribe's behalf, I urge the committee's favorable
action on H.R. 898.
______
[A supplemental statement submitted for the record by Ms.
Locklear follows:]
Supplemental Testimony submitted for the record by Arlinda F. Locklear,
Patton Boggs LLP, Of Counsel Attorney for the Lumbee Tribe of North
Carolina
At the hearing held on H.R. 898 on April 1, members of the
Committee indicated their interest in the background and intent of the
1956 Lumbee Act, 70 Stat. 254, including any legislative history or
other material that may bear on the issue. This supplemental statement
provides that authority and supports the Lumbee Tribe's interpretation
of the 1956 Lumbee Act.
The Supreme Court has held that surrounding circumstances and
legislative history broadly defined are relevant in construing Indian
statutes. Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977). Placed in
this context, it becomes clear that the 1956 Lumbee Act was intended as
a recognition bill as introduced, but changed when amended before
enactment.
Historical context
The first state recognition of the Tribe occurred in 1885. North
Carolina General Assembly 1885, chap. 51. The State of North Carolina
amended its recognition of the Tribe in 1911 and 1913, changing the
name by which it recognized the Tribe to Indians of Robeson County,
then Cherokee Indians of Robeson County. See North Carolina General
Assembly 1911, chap. 215; North Carolina General Assembly 1913, chap.
123. Finally, the Tribe grew dissatisfied with the state imposed names
and conducted a referendum among its members in 1952 on the adoption of
the name Lumbee. The referendum passed overwhelmingly and, under
pressure from the Tribe, the state once again amended its recognition
of the Tribe in 1953, renaming it Lumbee. North Carolina General
Assembly 1953, chap. 874. See state statutes collected in appendix 1.
There is no question but that these state statutes formally
recognized the Lumbee Tribe. Indeed, Governor Easley of North Carolina
wrote this committee on March 24, 2004, expressing his support for H.R.
898 and referring, among other things, to the continuous state
recognition of the Tribe since 1885.
The numerous federal bills to regarding the Tribe were introduced
on the heels of state legislation and, most often, were very similar if
not identical to the state bills. The first bill, introduced in 1899,
would have named the Tribe Croatan just as the State had done in 1885.
A bill introduced in 1911 would have recognized the Tribe as Indians of
Robeson County, just as the state had done in 1911. Bills introduced in
1913 and 1924 would have recognized the Tribe as Cherokee Indians of
Robeson County, just as the state had done in 1913. See federal bills
collected in appendix 2.
These federal bills oftentimes specifically referred to the similar
state legislation as the antecedent for the proposed federal bill and
indicated a federal intent similar to that of the state legislation.
This identity in purpose was made explicit in 1924. In its report on
the bill, the House committee stated:
By an Act of the State of North Carolina [referring to the 1913
state legislation] these Indians have been designated as
Cherokee Indians, and this legislation caries out this Act and
gives the Indians the same Federal status, but they are not
recognized as a part of any other Cherokee bands and does not
give them any tribal rights to lands or moneys belonging to any
other Cherokee Indians.
Rep.No.826, House of Representatives, 68th Cong., 1st sess. In other
words, the federal bill would recognize the Tribe on the same terms as
had the recent state statute. When this bill failed, a very nearly
identical bill was introduced in 1932. S. 4595, 72d Cong., 1st sess.
The 1932 bill also referred to the 1913 state legislation as its
antecedent and explicitly stated that the Croatan Indians ``shall
hereafter be designated Cherokee Indians, and shall be recognized and
enrolled as such...'' (emphasis added.) This bill failed as well.
The next federal bill was introduced in 1933 and was nearly
identical to the prior two bills, except that it directed that the
Croatan Indians ``shall hereafter be designated Cheraw Indians and
shall be enrolled as such...'' H.R. 5365, 73d Cong., 1st sess. For the
first time, the proposed federal bill departed from the then current
state law by designating the Tribe Cheraw. It was supported by the
Secretary of the Interior, who testified based on Dr. Swanton's
research that the Tribe descended from the Cheraw and related Siouan
speaking tribes. He recommended as follows:
In view of the foregoing, I do not favor the bill in its
present form. However I do believe that legislation to clarify
the status of these Indians is desirable. Therefore, it is
suggested that all after the enacting clause be stricken out
and the following substituted therefor: That those Indians in
Robeson and adjoining counties, North Carolina, who were
formerly known as ``Croatan Indian,'' shall hereafter be
designated ``Siouan Indians of Lumber River,'' and shall be so
recognized by the United States Government: Provided, That
nothing contained herein shall be construed as conferring
Federal wardship or any other governmental rights or benefits
upon such Indians.
Rep.No. 1752, House of Representatives, 73rd Cong., 2d sess.
Legislative history
As noted above, the state last amended its recognition of the Tribe
in 1953, following a referendum among the membership on the adoption of
the name Lumbee. Two years later, another effort was made for federal
recognition. The legislative history makes clear that the purpose of
the federal bill was the same as that of the state law--to recognize
the Tribe as Lumbee. Thus, what became the 1956 Lumbee Act followed the
pattern of attempting federal recognition upon the same terms as the
most recent state recognition legislation.
The 1955 federal bill (which eventually became the 1956 Lumbee act)
was identical to the statute passed in 1953 by the state which
recognized the Tribe under the name Lumbee. H.R. 4656, 84th Cong., 2d
sess. The bill was passed without amendment in the House of
Representatives and referred to the Senate. The Department of the
Interior objected to the bill in the Senate, just as it had done in the
House, but with more success. The Secretary wrote:
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. In fact, as the bill refers
to them in terms that are different from the terms of
recognition accorded under state law, some confusion as to
their status might result from its enactment. 1
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\1\ The Secretary of the Interior was apparently unaware that the
state had changed by the name by which it recognized the Tribe. As
noted above, in 1953 the state had amended its law to repeal the
Cherokee designation and recognize the Tribe as Lumbee. Thus, there was
no inconsistency between the proposed federal bill and the most recent
state recognition legislation. To the contrary, the federal bill
tracked the state law verbatim and was clearly intended by its sponsors
to have the same effect as the state law--recognition of the Tribe as
Lumbee.
If your committee should recommend the enactment of the bill,
it should be amended to indicate clearly that it does not make
these persons eligible for services provided through the Bureau
of Indian Affairs to other Indians.
The Senate committee adopted the Department's recommendation and
amended the bill to include classic termination 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.
The bill was enacted as amended. See Pub.L. 570, Act of June 7, 1956,
70 Stat. 254. The Department's amendment would not have been necessary
unless the bill would otherwise have made the Tribe eligible for
federal Indian services. Indeed, it appears to be the Department's
consistent position that, without the termination language added to the
1956 Lumbee Act at the Department's request, the bill would have made
the Lumbees a federally recognized Indian tribe. 2
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\2\ In 1974, for example, the Department commented on a bill that
would have simply repealed the termination sentences at the end of the
1956 Lumbee Act. See H.R. 12216, 93d Cong., 2d sess. The Department
opposed the bill on the ground that, if enacted, it would make the
Lumbees a federally recognized Indian tribe. H.Rep.No.93-1394, 93d
Cong., 2d sess., p. 7.
---------------------------------------------------------------------------
Senator Scott, the Senate sponsor of the bill that became the 1956
Lumbee Act, noted the identity in purpose between the 1953 state
recognition legislation and the proposed federal bill--i.e., to
recognize the Tribe. He testified before the Senate committee that,
``The State of North Carolina has already by state law recognized the
Lumbee Indians under that tribal name. Giving official recognition to
the Lumbee Indians means a great deal to the 4,000 Indians involved.''
3 Reprinted in S.Rep.No.100-579, 10th Cong., 2d sess., p.
31. In contemporaneous newspaper accounts of the bill's progress, it
was widely described as a recognition bill. Id.
---------------------------------------------------------------------------
\3\ The tribal population figure given by Senator Scott in his
statement before the Senate subcommittee was repeated in the House and
Senate reports on the bill. See H.Rep.No.1654, 84th Cong., 2d sess;
S.Rep.No.84-2012, 84th Cong., 2d sess. This figure was erroneous.
According to a correction to the figure appearing in contemporaneous
newspaper accounts of the statement, the Senator intended to refer to
4,000 Indian families, not 4,000 individual Indians. The total tribal
population in 1956 was set in this account at 27,726. This account is
consistent with the 1950 federal census data.
---------------------------------------------------------------------------
There are also excerpts from the legislative history of the 1956
Act suggesting that Congress did not intend by the Act, even without
the amendment proposed by the Secretary of the Interior, to make the
Tribe eligible for federal Indian services. For example, in a colloquy
on the House floor, the House sponsor Mr. Carlyle was asked whether the
bill would commit the United States to furnishing services. Mr. Carlyle
responded in the negative. Representative Ford then stated that, ``[i]t
simply provides for the change of name,'' and Mr. Carlyle agreed. 102
Cong. Rec. 2900 (May 21, 1955).
The eligibility for federal services, though, is not determinative
of whether federal recognition has been bestowed. While federal
recognition and eligibility for federal services are often viewed as
interchangeable, they are not under the law. The Department of the
Interior has itself made this clear in the context of Congress'
deliberations in 1977 on legislation to recognize the previously
terminated Siletz Tribe. In its comments on the bill, the Department
recommended that language in the bill restoring ``federal recognition''
be replaced with language restoring ``the federal trust relationship.''
The Department explained the reason for this proposed change as
follows:
Section 3(a) states: ``Federal recognition is hereby extended
to the tribe.'' This suggests that the Siletz Indians are not
now federally recognized. This is not the case; they are
recognized. The termination act simply dissolved the special
relationship between the Siletz Indians and the Federal
government and terminated any federal services and supervision.
See 25 U.S.C.Sec. 691. Federal recognition and federal services
are often confused and erroneously used interchangeably.
Because of the close connection between federal recognition and
the provision of federal services, etc., the error is
understandable, but nonetheless federal recognition and federal
services are not synonymous and should not be used
interchangeably. In lieu of the above quoted language, we would
substitute the following: ``The trust relationship between the
Federal government and the Siletz Indians is hereby restored.''
See 1977 U.S. Code Cong. and Admin. News, p.3700. Thus, in construing
the 1956 Lumbee Act, eligibility for federal Indian services must be
distinguished from federal recognition. The one court to construe the
Act seemed to reach the same conclusion: ``True, the limited purpose of
the legislation appears to be to designate this group of Indians as
``Lumbee Indians'' and recognize them as a specific group. Moreover,
Congress was very careful not to confer by this legislation any special
benefits on these people so designated as Lumbee Indians. But we do not
see that Congress manifested any intention whatsoever to take away any
rights conferred on any individuals by any previous legislation.''
(emphasis in original.) Maynor v. Morton, 510 F.2d 12511257-1258 (D.C.
Cir. 1975). 4
---------------------------------------------------------------------------
\4\ The precise question before the court was whether so-called
half-blood members of the Lumbee community, certified as such in 1936
under the Indian Reorganization Act [IRA] of 1934, had lost their
eligibility for services under the IRA because of the 1956 Lumbee Act.
The court held that they did not; the court did not directly determine
whether the 1956 Lumbee Act was intended by Congress to recognize the
Tribe, albeit without federal Indian services.
---------------------------------------------------------------------------
In sum, the historical context leading up to the 1956 Lumbee Act
and the Act's immediate legislative antecedent--the 1953 State Act
recognizing the Tribe as Lumbee--both support the Tribe's construction
of the Act as recognition legislation. This is corroborated by the need
felt by the Department to amend the bill before enactment to insure
that the Tribe was not made eligible for federal Indian services.
In an 1988 opinion on the subject, the Congressional Research
Service reviewed the legislative history of the Act and concluded as
follows:
The 1956 Lumbee legislation clearly did not establish
entitlement of the Lumbee Indians for federal services. It also
clearly named the group and denominated them as Indians.
Without a court decision squarely confronting the issue of
whether the 1956 statute confers federal recognition on the
Lumbee, there is insufficient documentation to determine if the
statute effects federal recognition of the Lumbees. It is,
however, a step toward recognition and would be a factor that
either the Department of the Interior or a court would have to
weigh along with others to determine whether the Lumbees are
entitled to federal recognition.
Reprinted in S.Rep.No.100-579, 100th Cong., 2d sess., p.31. A copy of
this opinion is attached as appendix 3. Simply put, Congress did a half
job of it in 1956 and Congress should complete the job by enacting H.R.
898 and recognize the Lumbee Tribe, finally and indisputably.
______
The Chairman. Thank you. I thank all of the witnesses.
I would like to start with Dr. Campisi, if I could. Some of
today's witnesses, and the argument has been made, that the
records relating to the genealogical descent from historic
tribes are deficient. My question is, how do your records
compare with those of other federally recognized tribes?
Dr. Campisi. The difficulty with the records, particularly
in the south, complicate the problem for any researcher,
whether looking at federally recognized or non-recognized, the
shifts of population, the merging of tribes, the destruction of
courthouses during the Civil War, for example, the normal loss
of documents as one goes on.
What we are trying to prove is not that every individual--
it is not simply that individuals descend from somebody who was
recognized as an Indian some time in the past. What we are
trying to demonstrate is that there is a tribal connection
between an existing group and a group that existed in the past,
and was recognized as a tribal entity or entities.
The regulations are clear, that combinations of tribes are
acceptable, so long as they have a lengthy history of working
together.
With that in mind, one then looks at the documents to
ascertain what was the native population in the area where the
present population exists, and what kind of ties can we make
between those two groups. Ninety-some percent of the world's
population does not have a genealogical record. That's a
reality. But we do have a record of tribal identity in the area
contiguous with the Lumbees and continuous from the time of
that recognition, from the 18th century.
The Chairman. How does that compare to the administrative
process that others are working their way through? How do your
records compare to what the Department of the Interior requires
in the normal administrative process that we've all grown to
love so much?
Dr. Campisi. Well, the Department has taken a variety of
positions on tribal relations. They have differed with
different decisions, different with HOMA, from the Eastern
Pequot. The record I think would compare favorably with what
the branch has done in the past, when the branch reads and
looks at those records from the point of view of what is the
contiguous tribal relationship of the 18th century through the
20th century. I think it would compare favorably.
Ms. Locklear. Mr. Chairman, if I may supplement that
response with regard to the regulations in particular, the
regulations only require proof of descent from an historic
tribe. They do not say that that proof must be genealogical.
The regulations allow for historical proof of that fact. The
Lumbee Tribe has demonstrated historical proof of that fact. So
we believe that, even under those regulations, the tribe has
proved its tribal existence.
The Chairman. I understand that. What I'm trying to do and
what I'm trying to understand is how it compares to the hearing
that we had yesterday and some of the difficulties that tribes
seeking recognition have gone through. Although this is not a
unique situation, it is a special situation to have Congress
act on legislation. I'm trying to figure out how it compares
with some of the tribes that were in here yesterday and the
efforts that they have made and the difficulties that they have
had.
I understand that a lot of work has gone into this, but for
my own sake, I'm trying to understand exactly how this works.
I did want to ask Chairman Goins a question. In going back
to the 1956 Act, there is an argument that the '56 Act--and I
was just researching it up here a minute ago, on what the exact
language is in the Act--that it did not recognize the Lumbee
Tribe because there's no language in the Act itself that
expressly recognizes the tribe.
How do you respond to that? What is your argument or your
response to that argument that's been put on the table?
Mr. Goins. My response would be, first, that when that Act
was passed in 1956, in our home town of Pembrooke, N.C., we had
a great parade. We felt and was told that we were federally
recognized. It was only later that we understood the full
consequences of the Lumbee Act.
In our minds, we were recognized with the benefits, until
later--and let me repeat again--when it was told to us that no,
it didn't occur like that. You were recognized without the
benefits.
The second point I would like to say is that all through
the literature that we have here, it cries out from the
Department of Interior's own research that we are Indians. So
why wouldn't the 1956 Act say that we're Indians? How could you
make an argument it did not recognize us from all the material
we have here?
This is not our material. We didn't pay somebody to put it
together. It was Congress and the Senate that authorized the
Department of Interior to come up with these studies on the
Lumbee people. And time and time again, in 1914, 1933, and
1934. They even went so far as to come down and buy land for
the Indians. They went so far to come down to check my people's
cheeks, to make sure of their hair, the color of our skin, how
big our teeth was, to recognize us as Indians. So we're being
led all these years to believe exactly what the Department of
Interior said here, that you are Indians.
So that's why I believe in my heart, when you say the 1956
Lumbee Act, that's what we're talking about, that I'm taking it
from the concept that the Department of Interior recognized us
as Indians in the 1956 Act, but without the benefits.
The Chairman. Thank you.
Mr. Kildee.
Mr. Kildee. Thank you, Mr. Chairman. I will address this to
Ms. Locklear, but others may respond also.
Numerous studies have been conducted over the years by
Congress and the Department of Interior on the Lumbee ancestry.
Have any of these studies expressed doubt as to the tribe's
Indian ancestry?
Ms. Locklear. No, Congressman, they have not, in none of
these studies, and depending on how you count them, there are
nine or ten over the last 100 years where neither the
Department, nor any of its experts, has ever doubted that the
Lumbees were Indian.
Mr. Kildee. We have about 562 federally recognized tribes
in the country, with 12 in my State. Some use quantum and the
nature of sovereignty, of course, that a sovereign nation
determines citizenship. Some use quantum. Some use lineage.
Basically, what do the Lumbees use for their rolls?
Ms. Locklear. There are two enrollment criteria that the
Lumbee Tribe uses. First, a member must trace ancestry to a
base roll, lineal ancestry only, which consists of many of the
church records that you've heard described of all-Indian
churches, school records of all-Indian schools, and also
Federal Indian census. These documents date to around 1900.
Second, a member must maintain contact with the tribe.
Unlike blood quantum use only, this ensures that the Lumbee
people are a true community and not just a group of people who
happen to share racial ancestry.
Mr. Kildee. So you base it upon lineage from existing rolls
that still exist, plus staying in community with the Lumbee
people?
Ms. Locklear. Yes, sir.
Mr. Kildee. You indicated--and maybe you could expand upon
this--that the various names applied to the tribe were more
externally imposed rather than adopted by the tribe. Could you
expand upon that?
Ms. Locklear. Yes. These names were the result of State
legislation. The first legislation that recognized the tribe
was in 1885, and by that State legislation, the tribe was
recognized as the Croatan Indians. The State amended that law
based on--by its own motion, not at the request of the Lumbee
Tribe, in 1911 and in 1913, to change that designation.
Mind you, the Lumbee Indians were still the same Indians
that were recognized, in the same community, in the same place.
They were simply changes in name only at the initiative of the
State. The only initiative that the Lumbee Tribe has ever done
to adopt its own name was that in 1952, where as a result of a
special referendum conducted by the State, at the request of
the tribe, the tribe finally adopted the name Lumbee, as
derived from the Lumber River. The State, as a consequence,
once again amended its law to recognize the tribe under the
same name.
Mr. Kildee. And that was the only internal naming of the
tribe?
Ms. Locklear. That was the only internal name we adopted,
yes.
Mr. Kildee. Thank you very much.
Thank you, Mr. Chairman.
The Chairman. Further questions? Mr. Gibbons.
Mr. Gibbons. Thank you, Mr. Chairman. I apologize for
missing the earlier part of your testimony, but I did catch
part of it to give me I think a very good understanding of what
we're approaching here today.
Certainly the Lumbee Tribe has what I consider a very
strong history of continual existence. If that is a documented
piece of evidence, as you suggest, that you have that
documentation, why are we here seeking legislative approval or
recognition rather than the Federal acknowledgment process?
Ms. Locklear. May I, Congressman?
Mr. Gibbons. Yes.
Ms. Locklear. First of all, Congress has never--We hear the
argument, as we've heard time and again this morning, do what
every other tribe has to do. Make the Lumbees go through the
process. No tribe like Lumbee has ever had to go through the
process. Every tribe, where there was a special Act of Congress
that precluded administrative action on the tribe, was
recognized by the Congress.
What is proposed today is that we, once again, single out
the Lumbee Tribe and do something through legislation that
Congress has never done before. Congress has never repealed a
prohibition against administrative action and then required
administrative action.
Second, if you look at the history of the tribe's efforts,
it is very clear that the Lumbee Tribe's principal opponent to
recognition has been the Department of the Interior. We think
it would be supremely unfair at this point for the Congress to
say to the tribe, now that we're finally going to act, we're
going to send you to the not-so-tender mercies of the
Department of Interior, never mind the fact that had it not
been for the Department's opposition all these years, you might
have been recognized by Congress before now.
Mr. Gibbons. I guess I'm not convinced that the Bureau of
Indian Affairs is so uncaring and so callous toward Native
Americans as perhaps has been painted. But that being the case,
as you say, I will take you at your word for that.
When I look at the land you have put up here on this map,
how much of that area is ancestral lands for the Lumbee?
Ms. Locklear. The exterior boundaries of this map are the
exterior boundaries of Robeson County. Robeson County, in every
document, is identified as the ancestral origin, the place of
beginning, for the Lumbee people.
Mr. Gibbons. Should then Congress set aside Robeson County
as a reservation for the Lumbee Indians, to take it completely
off the tax rolls and make it a reservation?
Ms. Locklear. No, Congressman. H.R.--
Mr. Gibbons. How much of that land should be put into
reserve status for you?
Ms. Locklear. The tribe does not request, and neither does
H.R. 898, provide for the trust acquisition of any particular
parcels, and it does not create a reservation. The Lumbee
people have resided in this place, on this land, for centuries,
and we don't now want to establish ourselves as a reservation.
Mr. Gibbons. Some tribes have that desire and that intent,
and that's the reason why I asked.
Ms. Locklear. Yes.
Mr. Gibbons. Let me ask if the Lumbee have any desire, any
intent, any plans to engage in gaming if they become a
federally recognized tribe.
Ms. Locklear. Let me say, Congressman, that the Lumbee
Tribe has never even discussed the issue. There are no plans,
there is no backer, there is no purpose, there is no intent.
The intent of the Lumbee Tribe is solely to be treated like
every other federally recognized tribe.
Mr. Gibbons. So I can take from your testimony that the
Lumbee Tribe has never engaged in discussion with any kind of
casino developer or investors interested in gaming, then?
Ms. Locklear. That's correct.
Mr. Gibbons. Very good.
That's all I have, Mr. Chairman. I yield back the balance
of my time. Thank you.
The Chairman. And further questions? Mr. Faleomavaega.
Mr. Faleomavaega. Thank you, Mr. Chairman.
I want to offer my personal welcome to Chief Goins. I am
also a chief by tradition. My chieftain name is Faleomavaega. I
say a personal welcome to you, sir, because we both served in
Vietnam in 1968, so I know what you're saying.
Dr. Campisi, I wanted to ask you if you were in any way
involved also with the research with the Pequot tribe in
Connecticut.
Dr. Campisi. Yes, I worked on the Pequot petition, the
Massatucket Pequot petition.
Mr. Faleomavaega. And you recall the Pequot Tribe also
sought Federal recognition through Congress, am I correct?
Dr. Campisi. That's correct.
Mr. Faleomavaega. And this was passed by the Congress?
Dr. Campisi. That's correct.
Mr. Faleomavaega. Does the Pequot Tribe currently have a
language of its own?
Dr. Campisi. No, it does not.
Mr. Faleomavaega. But it's federally recognized?
Dr. Campisi. Correct.
Mr. Faleomavaega. So are you saying that language really is
not a critical factor to be given Federal recognition?
Dr. Campisi. According to the regulations, language is not
a critical factor. It is one consideration amongst many.
Mr. Faleomavaega. You indicated earlier that tribal schools
were set up by the State of North Carolina a hundred years ago?
I mean, it's always been in place since North Carolina
recognized the Lumbee as a tribe since 1885, am I correct?
Dr. Campisi. That's correct.
Mr. Faleomavaega. And then since 1888, this tribe has
continuously sought Federal recognition but has been denied
each time, especially by the Department of the Interior?
Dr. Campisi. That's correct.
Mr. Faleomavaega. Why do you suppose there was so much
opposition from the Department of the Interior?
Dr. Campisi. Well, I think a couple of factors of different
time periods. Some have been alluded to before.
I think in the latter part of the 19th century, there was a
very strong assimilationist viewpoint. The Department of
Interior took the position that they didn't have the money to
educate Lumbee people, that the Indian schools that existed
were either being closed down, reduced, or were already
overcrowded.
I think they came along in the Depression, it looked like
they were going to come in during the 1930s, but by 1938, '39,
the Department's sentiment seemed to have shifted and the land
that was supposedly set aside for Lumbees was not set aside.
In the 1950s they had the unfortunate condition to come in
just when the Congress had voted through termination, and so
there was--well, there was a strong interest in the tribe,
there was this closing out in '56.
Mr. Faleomavaega. Dr. Campisi, do you recall years ago we
had a hearing and one of the gentlemen that testified in this
very Committee, this gentleman was the one that wrote the very
regulations on how to federally recognize a tribe. Do you
remember we had a hearing that year?
Dr. Campisi. Yes.
Mr. Faleomavaega. And do you recall the statement that was
made by that gentleman who wrote the regulations that we now
have as the Federal recognition process?
Dr. Campisi. Could you refresh my memory?
Mr. Faleomavaega. I'll refresh your memory. The gentleman
said, if he were to seek Federal recognition by the very
regulations that he wrote, it would be totally impossible to
recognize a tribe in the process. I will get a copy of that
statement, Mr. Chairman, to be made part of the record of that
congressional hearing, as I remember very distinctly. I know my
time is getting short here.
Arlinda, welcome.
Ms. Locklear. Thank you.
Mr. Faleomavaega. You indicated in your statement that each
time, as we were constantly seeking recognition, the Department
of the Interior was always in opposition.
Why do you suppose this has been for all these years?
Ms. Locklear. If we take the Department at their word, it
appears to be because of cost. In its first statement to the
Congress in 1890, the Department said--and I'm roughly
paraphrasing--we have too little funds already to service the
existing population, so we oppose the addition of any
``civilized tribes'' to that service population.
The Department never denied that the Lumbees were Indian,
never denied that they existed as a community with political
authority. Simply that they didn't have the money to provide
the services.
Mr. Faleomavaega. My good friend and colleague from North
Carolina had given these to members of the Committee, and you
have given an indication for all these name recognitions and
changes. You mentioned in your statement, Arlinda, that these
name changes were never made by the Lumbees; it was done by the
State of North Carolina, am I correct?
Ms. Locklear. That's correct.
Mr. Faleomavaega. As well as the Department of the
Interior?
Ms. Locklear. That's correct.
Mr. Faleomavaega. As much as I've done, and in all the
readings that I have done--and please, Arlinda, please be frank
with me on this--wasn't also one of the reasons why the
Department of Interior opposed consistently was because some of
the families that married into the Lumbees were African
Americans? Could there be a racial tone to this whole reason
why, for all these years, there was discrimination heaped
against the Lumbee people?
Ms. Locklear. A reasonable inference to that effect can be
drawn. The Lumbee people have experienced discrimination for a
lot of reasons, from a lot of sources, over the years, that I
would be happy to elaborate on. But that can be--that is a fair
inference from the historic record.
Mr. Faleomavaega. Am I also correct that at one time the
Klu Klux Klan made an effort to go through Robeson County and
the Lumbees chased them out and they never came back again?
Ms. Locklear. That's correct, in 1958.
Mr. Faleomavaega. Thank you.
Thank you, Mr. Chairman.
The Chairman. Any further questions? Mr. Bishop.
Mr. Bishop. Thank you.
Dr. Campisi, if I could just ask you a quick question. You
made a very quick reference in your statement to the
educational system and the situations that were there. And then
I read also from your written testimony when you went into a
little more detail.
Could you please just detail the impact of any change that
would be in the status of your school system if you had a
Federal recognition versus otherwise, either what is the
present system or what is the desired system in schools? Could
you just talk about the education concepts and how that would
change if there is Federal recognition?
Dr. Campisi. I don't think I'm--that's really a question I
think that goes more to the tribe than to me. I mean, the
students go to public school and my perception is that they
would continue to go to public school.
Mr. Bishop. All right. You just made a quick reference to
that in your statement, if either the Chairman or the others
would like to comment on that.
Mr. Goins. I would like to say that in Robeson County our
kids, they go to public schools. But I want you to also realize
that Robeson County is one of the poorest counties in North
Carolina, so quite naturally, our school system is going to be
one of the poorest. The drop-out rate amongst our Indian kids
is the highest in the State of North Carolina, amongst the
Lumbees.
To give you another point of information out, the syphilis
rate amongst Lumbees is the highest in Robeson County, as far
as I know--somebody correct me--in the United States. Yes, it
will make a difference, not only on health but education for
our kids.
The drop-out rate--we've had studies and studies done by
Duke University, UNC, the Department of Instruction of the
State of North Carolina, and it still is not helping. It's time
that somebody empowered the Lumbee people to start solving
their own problems for our people.
Mr. Bishop. So what I'm hearing is you would stay within
the public school system there and there would not be a change
in the school status, regardless of the designation?
Ms. Locklear. That's not entirely clear. Let me elaborate a
bit.
The tribe lost control of its own separate school system in
the early 1970s, when the Federal court required the
desegregation of the three separate school systems in North
Carolina. There was black, there was white, and there was
Lumbee Indian.
Immediately following that, Lumbee children were bussed to
accomplish desegregation. When the desegregation order was
dissolved so that bussing was no longer required simply because
of the geographic concentration of the tribe, many of today's
students currently attend schools that are predominantly
Indian. However, as the Chairman has indicated, the tribe does
not have control over who teaches them or what they are taught,
and as a result of that, the performance of our children has
dropped dramatically over the last 30 years.
It is a goal of the tribe to try to reestablish some
control over, to some extent, over the public school system
insofar as Lumbee children are concerned, so that we can try to
turn that around.
Mr. Bishop. You probably said this earlier, and I apologize
for that, but what percentage of the population of the county
would be Lumbee?
Mr. Goins. It's 43 percent, I think, the last figures.
Forty-three percent of Robeson County. It's almost a third, a
third and a third, of the other races.
Ms. Locklear. With the highest majority being--with the
highest minority being the Lumbee Indians.
Mr. Bishop. Do you happen to know how many Lumbee students
you have in that county in the school system?
Ms. Locklear. We could get that information for you.
Mr. Bishop. Roughly, what kind of percentage of the student
body does the Lumbee Indian tribe make?
Mr. Goins. It's over 10,000 students in the public schools
of Robeson County. I would like to add that the school I went
to, Prospect, from the first grade to the twelfth grade, it was
100 percent Lumbee.
Back in the old days, we used to have what we called the
blood committees. In other words, it was our local Board of
Education, our little private school. But if those fellows--
Ladies and gentleman, whatever family you went to, you didn't
go to our school, so we called them the blood committees. In
fact, that school today is probably, out of 800 kids, I would
estimate there's probably still 750 just Lumbees going to that
school, just because of where it's located in our community.
Mr. Bishop. You don't have just kind of a rough figure of
what percentage of the students in Robeson County are Lumbee?
Is it going to be similar to the other population?
Ms. Locklear. We would expect.
Mr. Bishop. About 40 percent as well. OK.
Thank you. I appreciate that. Thank you, Mr. Chairman.
The Chairman. Further questions?
Mr. McIntyre. Mr. Chairman, if I may just clarify a couple
of points.
The Chairman. Mr. McIntyre.
Mr. McIntyre. Thank you very much for indulgence.
Attorney Locklear, you referred to several studies done by
the Government to prove the Lumbee Indians existence as an
Indian Tribe. This does include the 1914 investigation ordered
by the U.S. Senate, that was in accordance with the Secretary's
letter to the President of the Senate, who would have been the
Vice President of the United States, who said he conducted a
careful investigation on the ground as well as extensive
historical research covering all aspects of the tribe's history
and condition, running 252 pages in length. You were including
that as documentation, correct?
Ms. Locklear. That's correct.
Mr. McIntyre. And are you also including the 1934 study
done by John Swanton of the Smithsonian Institution, who also
did an investigation to prove the tribe's ancestry as Indian?
Ms. Locklear. That's correct.
Mr. McIntyre. You have also mentioned that every tribe that
was precluded by Congress was corrected by Congress, and I
believe Mr. Gibbons, who stepped out now, had asked you why
there is a separate process. I know he didn't hear our earlier
testimony.
But it is your position also that the Lumbee Tribe is the
only tribe that has been put in its unique and unfair position
by action of the U.S. Congress with regard to it not being able
to obtain Federal recognition; is that correct?
Ms. Locklear. That's correct. As far as we are aware, the
Lumbee Tribe is the only tribe left that would qualify because
of that particular circumstance for the need for special
legislation. None of the other petitioners pending before the
Department of the Interior has that circumstance.
Mr. McIntyre. Thank you.
Thank you, Mr. Chairman.
The Chairman. Mr. Walden.
Mr. Walden. Thank you, Mr. Chairman. I, too, apologize.
With the conflicts and meetings I had, I was not able to hear
some of the earlier testimony, but I am interested in this
legislation and in this issue, and I thank you for bringing it
to us.
I wanted to follow up on a couple of points. One is
relative to the status of a reservation. If I heard you
correctly, this legislation would not create tribal land
status, is that right?
Ms. Locklear. It would not create a reservation, that's
correct.
Mr. Walden. Would not create a reservation.
It is also correct, though, that it would not preclude the
eventual creation of a reservation?
Ms. Locklear. The Secretary of the Interior does have
authority under other statutes to designate such lands. Whether
or not this Act, as a special Act of the Lumbee, would be
construed by a court to preclude the use of that authority with
respect to the Lumbee is a legal question that I wouldn't--that
I couldn't judge at this point. But it is clearly the intent of
this statute not to create a reservation.
Now, let me say--
Mr. Walden. Is it also the intent of those who are bringing
this proposed statute to us not to seek creation of a
reservation at any time in the future?
Ms. Locklear. I think that's correct. Clearly, we can't
bind a future tribal government or a future Secretary of the
Interior, but clearly, it is the intent of this statute that
there not be a reservation for the Lumbee Tribe.
Mr. Walden. We could, within this statute, make that action
occur?
Ms. Locklear. Yes.
Mr. Walden. Is that something you would favor or oppose?
I would obviously have to consult with the tribal council
in that regard, but my view is that, being that that's the
intent of the tribe all along, I don't think that would be a
particular problem, subject to consultation with--
Mr. Walden. Certainly, and I respect that, obviously. I ask
that because there are some other situations around the country
where these issues were left ambiguous, but those who sat at
tables like ours at the time say no, this is what the agreement
was, but because the statute was silent, now a different group
are coming in and saying well, tough, we want to do something
different now. It is obviously causing some issues.
Ms. Locklear. I understand.
Mr. Walden. And help me with this one as well. Is there a
requirement within this to develop a sustainability plan, an
economic sustainability plan on behalf of the tribe?
Ms. Locklear. Not in those terms. The Act requires that the
Department of the Interior and the Department of Health and
Human Services, which would provide services to the tribe under
this Act, must prepare a needs assessment for the tribe for the
delivery of those services in advance of delivery of those
services, not an economic development plan, though, per se.
Mr. Walden. OK. Because I know in some of these agreements
as well that Congress has enacted, there have been requirements
for an economic sustainability plan to be established as well.
In some cases, those have come back then and said, the way we
establish our economy is to acquire lands around us that maybe
at one time we used to call home, so that's why I go down that
route.
Some of my colleagues have raised the issue of casino
gambling, which obviously is an issue that a lot of people have
concerns on both sides about. The creation of a casino would
not be precluded by this Act either, would it?
Ms. Locklear. No. But let me point out in that regard that
there are provisions in this Act that would make the
acquisition of a casino more difficult by the Lumbee Tribe than
were the tribe recognized by the administrative process.
Under the administrative process, IGRA expressly provides
that a tribe recognized under that can avoid the approval or
concurrence of the Governor. Under H.R. 898, the tribe cannot.
Before gaming could take place under 898--
Mr. Walden. Right. The Governor of the State has to enter
into a contract.
Ms. Locklear.--it would require the Governor's concurrence.
Mr. Walden. That's because these are occurring after IGRA
was--
Ms. Locklear. After 1988, and because they would be in that
sense under IGRA off reservation acquisitions.
Mr. Walden. Right. So this just follows current law in that
respect. Well, by that I mean anything after '88 and IGRA has
to go through a more complicated process in collaboration with
the State.
Ms. Locklear. That's correct.
Mr. Walden. So it's not different than what other tribes
would face that took lands into trust after '88.
Ms. Locklear. Well, it is in the sense that the post-1988
acquisitions by tribes that go through the acknowledgment
process are exempted. Duly recognized tribes, through the
administrative process, are exempted. The Lumbee Tribe would
not be.
Mr. Walden. Oh, I see. OK. In other words, they started
before the Act because they weren't in existence--
Ms. Locklear. Correct.
Mr. Walden.--and therefore they're treated that way. OK.
There were a couple of issues raised by the Bureau--and I
apologize if you've already addressed these, but I would
certainly like to know your take on them. They include being
able to verify tribal membership. They're concerned about that
process. Apparently they would only have a year to do so. I
assume you've been through the testimony of Mr. Olsen.
Ms. Locklear. That's correct. They seem to have a different
view of what that provision anticipates, though, than I think
the bill itself provides for.
You heard testimony from Mr. Fleming, who runs the Branch
of Acknowledgment and Research, formerly known as the Branch of
Acknowledgment and Research, now the Office of Federal
Acknowledgment. What they do is an initial determination of
eligibility for every individual.
That's not what we anticipate happening, however, under
this bill. This bill provides for the more limited verification
that those folks actually enrolled demonstrated that the
documentation is there to demonstrate their eligibility for
enrollment. We think that process is much more limited and
could take place much quicker than what Mr. Fleming's office
does on the typical acknowledgment petition.
Mr. Walden. Mr. Chairman, I know my time has expired, but
perhaps you could help me if you could review the issues raised
by Mr. Olsen in his testimony and at some point just drop me a
line about how you address those questions that he raises,
because they are ones we at least need to think about.
Thank you, Mr. Chairman.
The Chairman. Further questions?
Mr. Abercrombie. Mr. Chairman, thank you.
Miss Locklear, I want to congratulate you on your
testimony. This is as good a ten page summary of a detailed and
complicated issue with a long history as I've ever seen.
Ms. Locklear. Thank you.
Mr. Abercrombie. That's the good news, right?
[Laughter.]
In fact, it is well reasoned and I understand precisely
what it is you're trying to accomplish here. The thing that I
feel badly about--and this has been expressed, as you no doubt
heard, by more than several members this morning--especially
coming from me, coming from Hawaii. Believe me, I have great
sympathy and empathy for these difficulties. It is painful to
find people feeling the necessity of confronting one another as
Native people, as to what a proper conclusion or outcome should
be with respect to recognition, or what might even be
determined as being restoration or rights, or termination of
rights, or privileges.
I don't know if you've had an opportunity to see or read
the testimony of Mr. Martin, who will be appearing after this
panel, but if you will grant me for conversation's sake that I
am quoting him accurately, and for a reason of trying to
address the questions that you've raised and the conclusions
you've reached in here, OK?
Ms. Locklear. Yes.
Mr. Abercrombie. Because there are people who may be
listening in or dealing with the issue for the first time who
might think there is unalterable opposition to the recognition
of the Lumbees, and I don't think that's exactly correct. I
think there is more an argument about how it should come about.
So that we have a common ground here, I'm going to refer to
the BAR, which is the Branch of Acknowledgment and Research in
the Department of Interior, right, and the Federal
Acknowledgment Process, the FAP, OK? He will be speaking on
behalf of the United South and Eastern Tribes.
What he says is: ``USET has a long-standing public
tradition of supporting any Indian group--'' and that word
group has been used already here today, and I don't take it
pejoratively, by the way, OK? ``--supporting any Indian group
seeking to go through the Federal acknowledgment process. This
position is reiterated,'' according to Mr. Martin, in a USET
Resolution, entitled Restating Position on Lumbee Recognition,
passed in 1993, never rescinded. So this position of supporting
the Federal Acknowledgment Process for the Lumbees is at least
10 years duration, I believe, by the tribe, by the USET.
It said it expressly rejected the concept of legislative
recognition. I understand that part. And it favored the
participation in the FAP by the Lumbees of North Carolina on an
equal basis with other petitioning groups. I think you've heard
the argument today that if this legislation passes, other
tribes will want to have the same thing. That is a complicating
factor over and above what the merits or demerits of your
presentation might be.
``It is not the intent of the USET to encourage the denial
of recognition of any tribe.'' It then goes on to say, ``While
we recognize that an Interior Solicitor's opinion states that
the Lumbees cannot access the BAR because of Federal
legislation--'' and I think that's what Mr. Olsen went into,
which to an outsider, if you will, or a lay person, would seem
like a crazy contradiction. How in the hell can we be in this
position if the Lumbees can't--they're Indians, but they can't
have access because they're Indians. I mean, that kind of a
``Catch 22'' situation.
So the ``USET believes the appropriate remedy for the
Congress is to clear this barrier through legislation that
would allow the Lumbees access to the BAR administrative
process.'' He then goes on to say, therefore, they endorse and
support H.R. 1408, a bipartisan bill that would accomplish
this.
Are you familiar with 1408?
Ms. Locklear. Yes, I am, Congressman.
Mr. Abercrombie. Is it correct that 1408 would give the
Lumbees access then to the recognition process?
Ms. Locklear. If enacted by Congress, technically, it
would.
Mr. Abercrombie. OK. Because my understanding is, if that
happens, and we can do that, that doesn't--does 1408
specifically address the Lumbees, or is it addressed to anybody
who finds themselves in the position of the Lumbees of this
kind of ``Catch 22'' recognition?
Ms. Locklear. Only the Lumbees are left in that position.
It is a specific Lumbee bill.
Mr. Abercrombie. But it would be applicable to anybody in
that position. I don't know if it names the Lumbees or not. I
haven't seen the bill.
Ms. Locklear. It names the Lumbee Tribe.
Mr. Abercrombie. OK.
I ask you, then, if that passes, I am presuming then the
USET and other tribes of good will would support that, to give
you the chance to participate. Could you not reasonably expect
them to get the support of other tribes for the recognition,
the support--in other words, of going through the process and
being able to participate and have the same equal chance as
anybody else of recognition?
Ms. Locklear. It appears from the testimony of the Eastern
Band of Cherokee today that our position has already been
prejudged and we would anticipate their opposition. They have
already made a judgment in that regard, whether it's by
Congress or the Department of the Interior, it seems.
Mr. Abercrombie. Well, Mr. Martin can speak to that, but I
do not read it this way. I read it the opposite, that once you
have equal access to the process, it says here they have a
long-standing tradition of supporting any Indian group seeking
to go through the Federal Acknowledgment Process. Now, I read
that as being supportive.
Ms. Locklear. We would welcome that. It would be a new
experience.
Mr. Abercrombie. OK. Then, Mr. Chairman, the reason I've
kind of gone through this lengthy inquiry is that I would like
to see if we can't find a way to get out of this confrontation
process, and if the Lumbees could have access then to the
process, like every other group, then the merits or demerits
would be decided along with everybody else.
The only question then is what the Chairman has brought up
in several venues, can we accelerate this process so that we
don't end up with something that, by default, becomes stoppage
because it goes on year after year, that we give them
sufficient revenues or positions or whatever needs to be done
to make these decisions?
I believe that the Chairman, by his actions in this
Committee, shows that he wants to get things accomplished, and
if it's a question of inertia that's preventing decisions being
made, that he will act accordingly. I think he will have the
support of the Committee. That's an issue separate from this.
If we can resolve this issue, it seems to me then we can
jump to the issues of how do we get this recognition process
decided, one way or the other, in a timely fashion.
Thank you, Mr. Chairman.
The Chairman. Thank you.
Mr. McIntyre. Mr. Chairman, could I just mention one thing
to my colleague?
The Chairman. The time has expired, but yeah.
Mr. McIntyre. Thank you. I'll keep it brief.
I don't believe you were here earlier today when we had
some of the testimony that Senator Dole and I entered regarding
the fact that putting the Lumbees through the process again
would be repetitive and, quite honestly, an extensive waste of
taxpayer money and tribal money when they have already proven
and met all the criteria to be a tribe.
The only issue now is the Federal Government granting them
recognition, and that is denied by congressional action of
1956. So the concern here would be not to make them jump two
hoops when they've already been through one of these hoops.
It's just a question of granting the recognition now, which the
only reason they're prohibited is because of the 1956 Act.
Mr. Abercrombie. OK. Well, I'll deal with it in Committee.
The Chairman. Yes. We can talk about that, Neil.
The time has expired. Before I dismiss this panel, I want
to thank you for your testimony. I know that, unfortunately,
this is not the first time that you guys have been here.
Hopefully, we can take care of this issue so that it's not an
ongoing issue. I think, one way of the other, in working with
my colleagues, we can come to some kind of a fair resolution on
this matter. So I want to thank you for being here.
Ms. Locklear. Thank you, Mr. Chairman.
Mr. Goins. Thank you.
The Chairman. I would like to call up our final panel of
witnesses, Mr. Tim Martin, Executive Director of the United
South and Eastern Tribes, and William J. Brooks, Jr., President
of the North Carolina Family Policy Council.
Could I ask you to raise your right hand.
[Witnesses sworn.]
Thank you. I appreciate your patience. I know this has been
a long hearing. It is nice to have both of you here today.
Mr. Martin, welcome back to the Committee. It's good to see
you again and I look forward to your testimony. We will begin
with you.
STATEMENT OF JAMES T. MARTIN, EXECUTIVE DIRECTOR, UNITED SOUTH
AND EASTERN TRIBES
Mr. Martin. Thank you, Mr. Chairman. It has been a long
day. It's been an emotional day, but these are serious issues
and I appreciate the effort of this Committee. I appreciate the
efforts of every person on either side of this issue, because
it's an issue that goes to the heart of everybody's personal
commitment. I am thankful for everyone.
I would start by saying to the Chairman and distinguished
members of the Committee, on behalf of USET, the United South
and Eastern Tribes, I am thankful for the opportunity to
provide testimony on H.R. 898, to provide for the recognition
of the Lumbee Tribe of North Carolina, and for other purposes.
My name is James T. Martin. I am the Executive Director of
USET, the United South and Eastern Tribes, representing 24
federally recognized Indian tribes in the south and eastern
part of the United States.
Prior to my tenure as Executive Director of USET, I was the
tribal administrator for 10 years. I had worked for my tribe,
the Poarch Band of Creek Indians, in excess of 20 years, the
last being 10 years. I am an enrolled member of the Poarch Band
of Creek Indians in south Alabama.
USET appreciates the opportunity to provide testimony
regarding the attempts by the Lumbee Tribe of North Carolina to
obtain Federal recognition through legislation and not through
the Federal Acknowledgment Process administered by the
Department of Interior.
USET recognizes that Congress has the power to extend
recognition to certain groups, but in its own infinite wisdom,
Congress has decided that the Federal recognition process, a
complex and tedious one, is not to be entered into lightly.
Congress, therefore, has deferred most Federal recognition
determinations to the U.S. Department of the Interior which has
established a set of regulations standardizing the Federal
recognition process and creating an administrative procedure to
determine whether particular Indian groups qualify as federally
recognized Indian tribes.
The BIA Federal Acknowledgment and Research procedures was
a result of a 2-year study of the congressionally established
American Indian Policy Review Commission, and at the demands of
tribes across the country calling for standardized criteria in
determining the future relationships between a tribe and with
the United States.
The BAR, not Congress, is staffed with experts, such as
historians, anthropologists and genealogists whose jobs are to
determine the merits of a group's claims that it is an American
Indian that has existed since historical times as a distinct
political group.
The Lumbees are seeking immediate recognition without going
through the BIA FAP process and meeting the BAR guidelines,
thus circumventing the established system.
USET member tribes believe that the formal act of
recognition through the BAR, even though complex, is an
essential act for a tribe to establish a productive,
meaningful, and above all, creditable trust relationship with
the U.S. Government and other tribal governments.
USET has a long-standing tradition of supporting any Indian
group that goes through the process. Congressman Abercrombie
very eloquently read that portion of my statement, so therefore
I will go forward. But it is a long-standing tradition of us to
support any group that goes through the BAR process. We do not
claim to say if this group is Indian or not. We're not the
experts. But even Congress, in its infinite wisdom, said we're
not the experts, either, that we will defer to the experts with
the criteria that the Congress stated over a 2-year period to
study from different people, to set the criteria that is used.
As stated, we believe the appropriate remedy is for
Congress to clear the legislative BAR that was put against
these group of people and allow the Lumbee Tribe of North
Carolina to go through the BAR process.
The relationship that all Federal tribes have with the
Federal Government and the public perception of that tribe is
diminished if a group is afforded Federal recognition without
serious technical review. Thus, Congress should take the
politics out of Federal recognition and allow the expert agency
and the staff employed of experts to be able to qualify whether
that group of individuals meet the technical review and
standards necessary to be declared a federally recognized
Indian tribe, not Indians of Indian descent, but a federally
recognized Indian tribal government that enjoys a government-
to-government relationship in perpetuity between that tribe and
the U.S. Government.
I thank you for this opportunity to provide this testimony,
and I will be pleased to answer any questions you have at this
time.
[The prepared statement of Mr. Martin follows:]
Statement of James T. Martin, Member, Poarch Band of Creek Indians in
Alabama, and Executive Director, United South and Eastern Tribes, Inc.
Chairman Pombo and distinguished members of the House Resources
Committee, on behalf of the United South and Eastern Tribes, Inc.
(USET) I thank you for the opportunity to provide testimony regarding
H.R. 898 ``To provide for the recognition of the Lumbee Tribe of North
Carolina, and for other purposes.''
My name is James T. Martin. I am an enrolled member of the Poarch
Band of Creek Indians of Alabama and Executive Director of USET, an
inter-tribal organization consisting of twenty-four federally
recognized Indian Tribes from twelve states in the South and Eastern
region of the United States.
The primary function of USET is to provide a forum for the exchange
of information and ideas among its member Tribes, the Federal
Government, and other entities. USET appreciates the opportunity to
provide testimony expounding on concerns regarding the attempts of the
Lumbees of North Carolina to obtain federal recognition through
legislation and not through the formal acknowledgment process
administered by the U.S. Department of the Interior.
USET acknowledges that the federal recognition of Indian Tribes is
a formal act, creating a perpetual government-to-government
relationship between a Tribe and the United States, this recognition
acknowledges the sovereign status of a Tribe. Federal recognition
ensures Tribes the dignity they deserve and equal opportunities that
fellow Tribes enjoy. Federal recognition is a complex process,
important to the sovereign and cultural sustainability of Tribes, in
that federal recognition also creates an official trustee relationship
and fiduciary responsibilities on the part of the United States. USET
affirms that federal recognition mandates an obligation by the federal
government to protect and preserve the inherent sovereign rights of
Tribes.
Federal recognition enables Tribes to gain access to vital
resources needed to break the yoke of unemployment, low education
levels, substandard housing, and poverty, which have historically
plagued our people.
Federal recognition also shields Tribes from undue federal and
state encroachments. Without federal recognition, Tribes have
experienced great difficulty sustaining themselves as independent
sovereign and cultural entities.
Federal recognition creates the trust relationship that identifies
the federal government's fiduciary responsibility to manage and protect
Indian lands, natural resources, and trust assets. The member Tribes of
USET realize the affirmative advantages of proper federal recognition.
Furthermore, Federally recognized Tribes have inherent sovereign
powers recognized by the United States to exercise criminal
jurisdiction over their tribal members and civil jurisdiction over all
persons, Indian and non-Indian, within their territory. Federally
recognized Tribes have the authority to engage in economic development
activity with certain jurisdictional and tax advantages.
We recognize that Congress has the power to extend recognition to
certain groups, but in its infinite wisdom Congress has considered the
federal recognition process a complex and tedious one, not to be
entered into lightly. Congress therefore has deferred most federal
acknowledgment determinations to the U.S. Department of the Interior,
which has established a set of regulations standardizing the federal
recognition process and creating an administrative procedure to
determine whether particular Indian groups qualify as federally
recognized Indian Tribes. The BIA/Branch of Acknowledgment and Research
(BAR) procedures were the result of a two-year study of the
Congressionally established American Indian Policy Review Commission
and at the demands of Tribes across the country calling for
standardized criteria in determining the future relationships of tribes
with the United States. The BAR, not Congress, is staffed with experts,
such as historians, anthropologists, and genealogists, whose jobs are
to determine the merits of a group's claims that it is an Indian tribe
that has existed since historical times as a distinct political entity.
This procedure was established in 1978 and the process was streamlined
1994. The Bureau of Indian Affairs (BIA) maintains authority to oversee
the recognition procedure and has set up a Federal Acknowledgment
Process (FAP). The Lumbees are seeking immediate recognition without
going through the BIA FAP process and meeting BAR guidelines, thus
circumventing an established system.
Seven criteria outlined in the Mandatory Criteria for Federal
Acknowledgment, 25 C.F.R. sections 83.7 (a)-(g) were established
through a formal notice and comment process with input from the tribes
and other interested persons. The criteria are: (a) continuous
identification since 1900 as American Indian; (b) existence as a
distinct community since historical times; (c) maintenance of
autonomous Tribal political influence/authority over members; (d)
furnishing of a copy of the Tribe's governing document; (e) furnishing
a list of all known members and show they descend from a single Tribe;
(f) proof that members don't belong to any other American Indian
Tribes; and (g) proof that the Tribe was not the subject of
congressional termination legislation. These are complicated tasks to
accomplish and require years of work by expert historians,
genealogists, attorneys, professors, tribal members, and a host of
others, but the thorough process of gathering information and the
scrutiny of that information provide greater credibility to those
Tribes that gain recognition.
USET member Tribes believe that the formal act of recognition, even
though complex, is an essential act for Tribes to establish a
productive, meaningful, and above all, creditable trust relationship
with the United States government and other tribal governments. USET
believes it is essential that the United States affirm the existence of
Tribes as distinct sovereigns within the established system.
USET has a long-standing public tradition of supporting any Indian
group seeking to go through the federal acknowledgment process. This
position is reiterated in USET Resolution No. 93-15LA, Restating
Position on Lumbee Recognition, duly passed at the Annual Board Meeting
on December 8, 1993 (attached). This resolution expressly rejected the
concept of legislative recognition of Indian groups and favored the
participation in the FAP by the Lumbees of North Carolina on an equal
basis with other petitioning groups. It is not the intent of USET to
encourage the denial of recognition of any Tribe, but it is our intent
to demand that the FAP process and BAR guidelines for federal
recognition be administered equally for all groups seeking federal
recognition and that groups not be allowed to bypass the process. While
we recognize that an interior Solicitor's opinion states that the
Lumbees cannot access the BAR because of federal legislation, USET
believes the appropriate remedy is for Congress to clear this barrier
through legislation that would allow the Lumbees to access the BAR
administrative process. USET endorses and supports H.R. 1408, a
bipartisan bill that would accomplish this.
Additionally, federal legislative acknowledgment of a group gives
unfair preferential treatment to that group over all other groups who
are in the BAR process and patiently awaiting review and determination.
Moreover, providing federal acknowledgment to a group through
legislation invariably leads to inconsistent and subjective results.
Without the use of uniform procedures and criteria, the process of
according a group federal recognition as a tribe will inevitably be
based on emotion and politics. The relationship that all federally
recognized tribes have with the United States and the public perception
of those tribes is diminished if a group is afforded federal
acknowledgment without serious technical review. Thus, Congress should
take the politics out of federal recognition and allow the expert
agency to do its job.
As I conclude my testimony, I thank the Committee for the
opportunity to provide comments and restate the USET position on the
request for federal recognition by the Lumbees of North Carolina.
Again, I thank you for the honor of appearing before you to discuss
this significant issue. I will be happy to answer questions at this
time.
______
The Chairman. Thank you.
Mr. Brooks.
STATEMENT OF WILLIAM J. BROOKS, JR., PRESIDENT,
NORTH CAROLINA FAMILY POLICY COUNCIL
Mr. Brooks. Mr. Chairman and members of the committee, my
name is Bill Brooks and I'm President of the North Carolina
Family Policy Council, a statewide, nonprofit and nonpartisan
research and education organization. Thank you for the
opportunity to testify on House Resolution 898, the Lumbee
Recognition Act.
My comments will focus primarily on one aspect of the bill,
and that is the potential of this legislation to pave the way
for the Lumbee Tribe of North Carolina to establish casino
gambling in eastern North Carolina. While I understand the
passage of this bill will not immediately grant the Lumbee
Tribe the right to gamble, it would represent a significant
step in that direction, and this is a major concern for many in
my State.
North Carolina remains one of 11 States in the Nation
without a lottery, and our citizens and State lawmakers have
traditionally resisted gambling at almost every opportunity.
The only forms of gambling that are legal in North Carolina are
bingo, limited video gambling with no cash payouts, and the
Harrah's Cherokee Casino in the mountains of western North
Carolina, which offers only bingo and video-based machines.
In fact, the Cherokee casino is the only casino in the
southeastern United States, and it is somewhat difficult to get
to, not being on an Interstate or other major highway.
Nevertheless, this facility boasts about 3.3 million annual
visits, making it the largest private tourist attraction in
North Carolina.
A casino operated by the Lumbee Tribe would be situated in
Robeson County, most likely on Interstate 95--and I have listed
in my testimony some of the cities that are within range of the
feeder market for the casino. We're talking about, of course,
Lumberton and Southern Pines and Pinehurst, the golf capital of
the world, Chapel Hill, Raleigh/Durham, Myrtle Beach, and
Columbia, S.C. It would be located just 32 miles from
Fayetteville, the home of Fort Bragg and the 82nd Airborne.
I-95 is the major Interstate thoroughfare between New York
and Florida, and runs through the heart of Robeson County, with
39,000 vehicles per day. Considering the ease of access to this
gambling from any direction, such a casino would have a
profound social and economic impact on parts of North Carolina
and South Carolina.
John Warren Kindt, a noted gambling expert and professor at
the University of Illinois, he estimated that a casino in
Robeson County may become a billion dollar annual operation,
with income generated primarily by cannibalizing regional
commerce and tourism. In addition, when one considers the
negative multiplier effect when money is removed from local
business economies, the cumulative regional economic impact
could actually be a loss of two to three billion dollars. As a
major part of the economy of the coastal region depends on
tourism and retirement, the negative economic impact on the
region from gambling would be significant.
In addition, a casino in Robeson County would result in
numerous adverse social effects on the region. Easy access to
gambling means that a significant number of citizens would
develop a pathological or problem gambling habit. Numerous
studies have demonstrated a high correlation between gambling
addiction and increases in crime, domestic violence, child
abuse, divorce, unemployment, theft, bankruptcy, embezzlement,
and even suicide. Because this region of North Carolina is
relatively gambling-free, the introduction of a gambling casino
would have a serious impact on many families in the area, both
directly and indirectly.
We agree with the findings and recommendations of the
National Gambling Impact Study Commission, that there be a
moratorium on gambling expansion in the United States. The
North Carolina Family Policy Council requests that, should this
Committee decide to take positive action on H.R. 898, or, quite
frankly, the other bill that's under consideration, that the
bill be amended to expressly prohibit the Lumbee Tribe from
operating any gambling activities.
In addition, we believe the Committee should adopt a policy
that in the eastern United States all future tribal
recognitions would include the same provision. This would
ensure that we do not develop a casino domino effect, as we
have seen with State lotteries, where neighboring States start
gambling and then the next State sees citizens cross the
borders spending money, thereby giving fuel to the cry for
additional gambling to keep the money in the State.
In conclusion, there is precedent for such an approach. In
the early 1980s, the U.S. Senate Committee on Agriculture,
Nutrition and Forestry, which at the time had jurisdiction over
all national forests east of the 100th meridian, delayed the
approval of all eastern wilderness bills until the sponsors
agreed to include language in the bills which released lands
not designated as wilderness to multiple use management. An
amendment prohibiting additional gambling could easily be
placed on individual bills, even those that might start a
tribal recognition process within the established Federal
framework. Congress should take the advice of the National
Gambling Impact Study Commission and take whatever steps are
necessary to prevent the expansion of gambling.
Thank you.
[The prepared statement of Mr. Brooks follows:]
Statement of William J. Brooks, Jr., President,
North Carolina Family Policy Council
Mr. Chairman and members of the committee, my name is Bill Brooks,
and I am President of the North Carolina Family Policy Council, a
statewide nonprofit, nonpartisan research and education organization.
Thank you for the opportunity to testify on House Resolution 898--
Lumbee Recognition Act.
My comments will focus primarily on one aspect of the bill, and
that is the potential of this legislation to pave the way for the
Lumbee Tribe of North Carolina to establish casino gambling in Eastern
North Carolina. While I understand the passage of this bill will not
immediately grant the Lumbee Tribe the right to gamble, it would
represent a significant step in that direction, and this is a major
concern for many in my state.
North Carolina remains one of 11 states in the nation without a
state lottery, and our citizens and state lawmakers have traditionally
resisted gambling at almost every opportunity. The only forms of
gambling that are legal in North Carolina are bingo, limited video
gambling with no cash payouts, and the Harrah's Cherokee Casino in the
mountains of Western North Carolina, which offers only bingo and video-
based machines.
In fact, the Cherokee casino is the only casino in the southeastern
United States and it is somewhat difficult to get to, not being on an
interstate or other major highway. Nevertheless, this facility boasts
about 3.3 million annual visits making it the largest private tourist
attraction in North Carolina.
A casino operated by the Lumbee Tribe would be situated in Robeson
County, most likely on Interstate 95. Lumberton, the county seat is 73
miles from Wilmington, 52 miles from Southern Pines and Pinehurst, and
about 100 miles from Raleigh, Durham and Chapel Hill, all in North
Carolina. It is just 74 miles from Myrtle Beach and 133 miles from
Columbia, South Carolina. Also, the casino would be located just 32
miles from Fayetteville, home of Fort Bragg and the 82nd Airborne.
I-95 is the major interstate thoroughfare between New York and
Florida and runs through the heart of Robeson County with 39,000
vehicles per day. Considering the ease of access to this gambling from
any direction, such a casino would have a profound social and economic
impact on eastern parts of North Carolina and South Carolina.
John Warren Kindt, a noted gambling expert and professor at the
University of Illinois, has estimated that a casino in Robeson County
may become a billion dollar annual operation, with income generated
primarily by cannibalizing regional commerce and tourism. In addition,
when one considers the negative multiplier effect when money is removed
from local business economies, the cumulative regional economic impact
could actually be a loss of two to three billion dollars. As a major
part of the economy of the coastal region depends on tourism and
retirement, the negative economic impact on the region from gambling
would be significant.
In addition, a casino in Robeson County would result in numerous
adverse social effects on the region. Easy access to gambling means
that a significant number of citizens would develop a pathological or
problem gambling habit. Numerous studies have demonstrated a high
correlation between gambling addiction and in increases in crime,
domestic violence, child abuse, divorce, unemployment, theft,
bankruptcy, embezzlement, and even suicide. Because this region of
North Carolina is relatively gambling-free, the introduction of a
gambling casino would have a serious impact on many families in the
area, both directly and indirectly.
Although H.R. 898 would not automatically authorize the Lumbee
Tribe to establish a gambling casino in North Carolina, federal
recognition along with the possession of ``Indian Lands,'' as defined
by the Indian Gaming Regulatory Act (IGRA), would place the Tribe in a
position to seek a Tribal-State gaming compact with the State of North
Carolina. The designation in H.R. 898 that land in Robeson County be
treated as ``on reservation'' trust acquisitions, as well as Section
3(a) of the bill, which states that ``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,''
would make the Tribe's process of obtaining ``Indian Lands'' relatively
easy. Because IGRA requires states to negotiate in good faith with
federally recognized tribes when they seek a Tribal-State gaming
compact and because the State of North Carolina has already entered
into a Tribal-State Compact with the Eastern Band of Cherokee Indians,
the State would find it difficult to deny a gambling compact to the
Lumbee Tribe.
We agree with the findings and recommendations of the National
Gambling Impact Study Commission that there be a moratorium on gambling
expansion in the United States. The North Carolina Family Policy
Council requests that, should this committee decide to take positive
action on H.R. 898, the bill be amended to expressly prohibit the
Lumbee Tribe from operating any gambling activities.
In addition, we believe the Committee should adopt a policy that in
the eastern United States that all future tribal recognitions would
include the same provision. This would ensure that we do not develop a
``casino domino effect'' as we have seen with state lotteries, where
neighboring states start gambling and then the next state sees citizens
cross the borders to spend money, thereby giving fuel to the cry for
additional gambling to keep the money in state.
There is precedent for such an approach. In the early 1980's, the
U.S. Senate Committee on Agriculture, Nutrition and Forestry, which at
that time had jurisdiction over all national forests east of the 100th
meridian, delayed the approval of all eastern wilderness bills until
the sponsors agreed to include language in the bills which released
lands not designated as wilderness to multiple use management.
An amendment prohibiting additional gambling could be easily placed
on individual bills, even those that might start a tribal recognition
process within the established Federal framework. Congress should take
the advice of its own national commission and take whatever steps are
necessary to prevent the expansion of gambling.
______
The Chairman. Thank you.
I would like to recognize Mr. Jones.
Mr. Jones. Mr. Chairman, thank you very much.
Mr. Brooks, if I understood you correctly, if the sponsor
of this bill, Mr. McIntyre, would agree that there should be an
amendment that would prohibit the Lumbees, when and should they
be recognized, from creating a gambling casino, then you would
be supportive of his effort if the bill was amended so it would
prohibit that event of gambling happening in the future? That's
what you said, is that right?
Mr. Brooks. Representative Jones, I wish I could say that.
We would not oppose it, nor support it, because it's not an
issue that we have done research on, in terms of the actual
establishment of the Lumbee Tribe. There are a lot of factors
there and that's just not one of our issues. But gambling is,
and we have done a lot of research on that.
Mr. Jones. I guess I would ask Mr. McIntyre, if this bill
does move, would you have any opposition to an amendment that
would be put on the bill that would prohibit the Lumbees, when
and should they be recognized, from going into the process of
trying to have gambling on that reservation or adjoining lands?
Yes or no.
Mr. McIntyre. Well, Mr. Chairman--I mean, I'll be glad to
respond, but are we questioning each other as members, since
I'm already up here on the panel and previously answered this
question as a matter of record?
Mr. Jones. Mr. Chairman, could I ask the sponsor of the
bill if he would object to the committee, should this bill
begin to move, to that kind of amendment.
The Chairman. If the gentleman wishes to engage.
Mr. Jones. Just a yes or no, that you would not be in favor
of an amendment, or you would be in favor of an amendment.
Mr. McIntyre. Well, as I stated previously--and I hate, for
time considerations, to be redundant--but this is an issue that
the tribe would have to decide. I do believe that the tribe
should have the sovereignty to make these decisions, and
according to its own constitution, it would have to have a
referendum to make that decision. As I explained earlier this
morning, I know there is a great difference of opinion within
the Lumbee community, some who are, in fact, we know are very
much opposed to consideration of that.
Mr. Jones. Is that a yes or no answer? I mean, I couldn't--
Mr. McIntyre. My answer is, as I said this morning, I think
the red man is tired of the white man telling him what to do. I
will respect what the Lumbee tribal council and Lumbee people
will decide.
Mr. Jones. So basically you would not be in opposition
should the majority of the Committee accept and support that
type of amendment. In other words, you'll let the will of the
Committee move forward, whether amended or not amended?
Mr. McIntyre. I will respect, obviously, actions taken by
this Committee, and I'm greatly appreciative of the Committee's
efforts for the hearing. I will also respect what my
constituents, the Lumbee Tribe, would desire on this issue.
Mr. Jones. OK. I think I understand what you're saying.
Thank you for your nonanswer, thank you very much.
Mr. Martin, I want to also say to you that I appreciate
your position, because everyone that has testified today,
whether they be from the Lumbees or from the Cherokees, I think
we all realize that there's a problem with the process. I think
the gentleman from Hawaii, who has left the dais--I was in the
outer office making phone calls, but I did hear some comments
that he made. I think Mr. Olsen acknowledged this, that the
process needs to be analyzed and fixed by the Congress, because
that's where the problem is for this tribe, that we have a
process that's just not working in an expeditious way. I
realize it's going to take time when you analyze the heritage
of any tribe. But still, I think we should narrow the timeframe
that it takes now, because it does need help and needs to be
fixed.
Mr. Brooks, I guess the only last question I would have,
Mr. Chairman, is more of a statement, but somewhat of a
question.
You talk about the economic impact should, down the road,
the Lumbees apply for permission to open gambling facilities in
that part of North Carolina. I did not hear you say this, but
maybe you did and I missed it.
Do you see Fort Bragg as being a feeder to a gambling
operation that would be on or off I-95?
Mr. Brooks. Well, it's within the 35-mile location feeder
market range, within that, so it would be very easy access.
There is a 35-mile zone and there's a 100-mile zone, in which a
number of economic studies have been done.
If you go out to the 100-mile zone, you just about pull in
Camp Lejeune and Seymour Johnson Air Force Base, too, plus I'm
not sure what's in South Carolina. But there is a number of
military installations that would be included in that.
Mr. Jones. Mr. Chairman, I'm going to close but just make
one quick statement.
I think we should look at Mr. Taylor's bill along with Mr.
McIntyre's bill and see if we can't fix this process for not
only the Lumbee Indians, but the Indians across America that
have a right to be considered and recognized by the Federal
Government. I think the whole issue that has created this
problem is that the system itself needs to be fixed.
With that, I yield back my time. Thank you.
The Chairman. Thank you.
Mr. Kildee.
Mr. Kildee. Thank you, Mr. Chairman.
First of all, I welcome the testimony of the two gentlemen.
No one can question their sincerity or their expertise on these
matters. I have known Tim Martin for many years and I hold you
in high regard. I appreciate the fact that you have testified
here today. Your testimony has been very clear, and I have no
questions to ask.
Thank you, Mr. Chairman.
The Chairman. Any further questions? Mr. Faleomavaega.
Mr. Faleomavaega. Thank you, Mr. Chairman. I, too, would
like to thank Mr. Martin for his statement and his presentation
before the Committee. I think the gentleman from North Carolina
does make some valid points in some of the concerns he has
raised concerning the process.
I would like to share with Mr. Martin, in your statement
you said that Congress, in its infinite wisdom. With all due
respect, Mr. Martin, Congress did not have any sense of wisdom
when we first established the American Indian Policy Commission
in the 1970s, and this was one of the areas that Congress has
totally neglected to address. So what did Congress do? We just
simply let the Interior Department draw up these regulations on
the process, where we came up with these seven criteria. The
process never was really scrutinized to the extent that now, it
is not only so complex, but so difficult for so many of the
Indian tribes to meet the extremely high costs of having to
hire attorneys and anthropologists and archaeologists.
I would like to ask Mr. Martin, let's suppose a tribe does
make an application in the process and the tribe does not have
the funds, what do you think we should do then to give
assistance to these tribes? Or should we just say forget it?
Mr. Martin. Thank you, Congressman. That's an excellent
question.
If you will look at my testimony yesterday, I did testify
before this committee yesterday to that point. I believe that
tribes that come forward and go through the process, who do not
have the resources, should be offered technical assistance
grants. I testified yesterday that ANA, the Administration for
Native Americans, at one time did offer technical assistance
grants to tribes that were going through the FAB process.
I believe it is incumbent upon this Congress to look at
that as a vehicle to help those tribes who do not have the
resources so that they are not enticed by third party influence
to be able to put together petitions of the greatest--I mean,
as I said, the rapid increase in final petitions over the last
years, those petitioners now average at least 25 years before
nothing is being done to them. But I did address it yesterday.
I believe in a form of technical assistance to the tribes in
the process, who do not have the resources.
I also testified that the Assistant Secretary should be
able to expand his authority to look at frivolous petitioners,
ones that, by any stretch of the need, cannot pass a red face
test, that they're not going to be able to go through the
process and to be able to shrink this never-ending growth of
petitioners.
Mr. Faleomavaega. I want to mention to Mr. Martin that I
have attempted several times to introduce legislation to change
the FAB system, to provide a better and more orderly fashion on
how the process should function. I cannot agree with Mr. Martin
more when he says we don't want frivolous petitions.
We have approximately over 100 tribes in California that
are not recognized, and the process, as you indicated earlier,
there is no question about the complexity of the issue that
we're talking about.
I want to share with Mr. Brooks, you mentioned the National
Gambling Impact Study Commission, and now we're looking at a
moral tangent to this whole legislation. We're talking about
the concern with gaming and gambling.
With all due respect, Mr. Brooks, I'm not a gambler, but to
suggest the very nature of how this whole gambling commission
came about was pitying the poor American Indians simply because
of the successes, limited as they may be, that all of a sudden
our Nation comes out and says we've got to keep an eye on these
Indians; they're being too successful in their gaming
operations.
So what happens is we try to moralize the issue. Oh, let's
continue to let the States do the lottery, the horse racing and
all that. That's not gaming. So we can make the arguments both
ways.
My concern is that Congress is the one that set up the law
on how the Indian tribe goes about getting into gaming
operations. And on top of that, it is highly restrictive. It's
up to the Governors, the State Governors, on whether or not to
allow these Indian tribes. So there is no way--If you want to
talk about the Cosa Nostra, the Mafia or the Syndicate being
involved in Indian gaming, its impossible because the Congress
is regulating, not the State governments.
Mr. Brooks. May I respond, Mr. Chairman?
Mr. Faleomavaega. I'm not through with my statement. But I
will give you time, Mr. Brooks.
My concern, Mr. Brooks, I have the utmost respect and
concern for many of the good people of North Carolina who are
anti-gambling. But with all due respect, I think we're being
unfair to let the Lumbee people, as a tribe, if they should be
recognized 1 day, make that decision. There's a process that,
if they should be allowed to do gaming in North Carolina, then
the good people of North Carolina and their leaders have to
meet on that basis. But to prejudge it and say let's prohibit
the tribe from doing any gaming I think is being unfair.
Please, Mr. Brooks.
Mr. Brooks. As I mentioned, we only have one casino
currently in North Carolina, and that is a video poker casino.
The Cherokee would like to have, as I understand, full-blown
casino gambling, but our State law only has video poker
machines. In fact, bills have passed our Senate for three
sessions to ban video poker they way they did in South
Carolina, and there is one pending now, coming up in a short
session.
The problem has been the Cherokee casino, because they
already have a casino, it's a pretty good sized one, they've
got a 15-story hotel, and they're building another one. The
will is not in the legislature to make them go away. Therefore,
people have talked about how they could make that happen, but
the will is also not in our legislature or in our State. Nobody
is asking to have casinos.
It seems to me there's a problem when you have a group of
people, whether they be the Lumbee or the Cherokee, or anybody
for that matter, that can say to eight million people in the
State that we have the right to gamble, irrespective of what
you think about it. The casino is an issue that nobody is
proposing down in North Carolina. It's one of those things,
though, that we will get if the Cherokee get recognition, most
likely.
Mr. Faleomavaega. I just want to say to Mr. Brooks--and I
know my time is over--I think that's something that the good
leaders of North Carolina will address at that point in time.
I also want to mention that there was a concern from my
good friend from North Carolina about Fort Bragg. We have
Nellis Air Force Base right next to Las Vegas, so I don't see
the logic in suggesting that we're going to poison the morality
of the good soldiers that we have at Fort Bragg, no more than
there is at Nellis Air Force Base or Edwards or any other
place.
But I do respect the gentleman's point of view about the
concerns about gaming and the effects of gambling, but I just
don't feel that we ought to target or point to the Indians as
the cause of all the moral problems that we have in our
country, and to suggest that gaming is the reason for this. I
just wanted to share that concern.
Thank you, Mr. Chairman.
The Chairman. Mr. McIntyre.
Mr. McIntyre. Thank you, Mr. Chairman. I have just two very
quick questions.
Prior to those questions, I do want to express my deep
appreciation for your time and indulgence today. I know it's
been a long hearing. I greatly appreciate the Committee members
who have taken the time to spend with us, and obviously, all of
those who have joined us to testify. But thank you, Mr.
Chairman, for your courtesies today.
Mr. Martin, just two quick questions. Were you aware that
seven of the tribes in your organization, seven of the 24,
which would be about one-third, were recognized by
congressional action?
Mr. Martin. Each of those tribes that were recognized in
congressional action--
Mr. McIntyre. So you do recognize they were recognized by
congressional action? Are you acknowledging they were
recognized by congressional action?
Mr. Martin. The legislation that recognized them was tied
to land claims. The question of them being an Indian tribe was
never in doubt. The legislation pertained to land claims, not
the question of whether that tribe existed as a tribe or not.
Mr. McIntyre. OK. My question was, it was by congressional
action, correct?
Mr. Martin. Technically, that's correct.
Mr. McIntyre. So seven of your tribes, nearly one-third,
were recognized by congressional action.
Were you aware that only six of the tribes in your
organization have been through the FAP process?
Mr. Martin. Yes, sir.
Mr. McIntyre. Thank you very much, Mr. Chairman.
The Chairman. Thank you.
I want to thank this panel for your testimony. Obviously,
there is an emotional issue, a very important issue that all of
us have a solemn duty in moving forward with this legislation.
Mr. Martin, just in terms of clarification, your testimony
does not pass judgment on the Lumbees' petition, but you oppose
the bill because you said it does not support the Lumbee using
the administrative process but rather the legislative process.
Mr. Martin. Yes, sir. Several questions earlier from
different Congressmen who had to leave--I think Mr. Walden and
Mr. Jones--they asked questions of the Congressman from North
Carolina, the sponsor of the bill, about gaming and education.
We support the Lumbees going through the FAB process. If
they are federally recognized, we will welcome them with open
arms. I would say to the Lumbee group, do not diminish your
recognition, if you're successful in getting it, by arbitrarily
agreeing to anything that makes you any less of a special group
of people that you will join if you're federally recognized.
We will support anyone who goes through the process, and if
they go through the process and are declared to be a federally
recognized Indian tribal government, we will support them in
every endeavor they can, that exercises their right of
sovereignty, if it is bestowed upon them.
Mr. McIntyre. May I have a follow-up question?
The Chairman. Very quickly.
Mr. McIntyre. Yes, sir.
If H.R. 898 passes the U.S. Congress and, therefore,
recognition is given by the U.S. Congress, will you still
recognize them and welcome them with open arms as a fellow
Indian tribe?
Mr. Martin. As I stated in our testimony, this body and the
U.S. Senate and the President, with the signature of the United
States, if they so choose that they are recognized, then they
will be accepted.
Mr. McIntyre. Thank you.
Thank you very much, Mr. Chairman.
The Chairman. Mr. Martin, my follow-up question to you is
directly to the point that you raised at the end of your
answer; that is, one thing I'm not sure we want to start doing
is recognizing anybody as a sovereign tribe with different
rights than every other sovereign tribe. We have already caused
problems by doing that in the past and I'm not sure that this
Committee, as constituted, if that is such a great idea to
start doing that.
Mr. Martin. Let me clarify my statement, to make sure I'm
clear.
The Chairman. I understand your statement, because if Mr.
McIntyre's bill is adopted, I'm not exactly sure that
everything is available to the Lumbee people as it would be if
they went through the normal process. This is something that
we're going to try to figure out exactly what that means.
Because we've already had testimony today that they would
have a different ability or a restricted ability, if they chose
to become a gaming tribe, than if they went through the other
process. I'm not exactly sure that that's--
Mr. Martin. It was to the point where the Congressman was
saying if they would be welcomed with open arms as a member of
a federally recognized group.
The Chairman. Oh, I understood that part.
Mr. Martin. OK. But we would then advocate to make sure
that the standard of sovereignty is not reduced by any means.
The Chairman. That was my follow-up question, because that
is something that I think, if we do proceed with legislation of
any kind, I think we have to be careful exactly what that says.
Mr. Martin. Yes, sir.
The Chairman. And to the point of whether or not this
Committee and Congress has the right to recognize tribes, we
have the right in the Constitution, and I'm not sure the
Administration has the right anywhere. I mean, this is our
responsibility.
At some point that changed, but that is the way things have
been done since before I got here, and maybe those who have
been around longer can explain to me why that happened. But
since we've been here, it hasn't.
Mr. Brooks, just a final question to you. In regards to the
issue of gaming--and I know that that has become a big issue
across the country; it's a big issue in California, and it's a
big issue in my district. People have differing opinions. Like
Mr. Faleomavaega, I'm not a gambler and I'm not real wild about
it to begin with. But it is something that we are dealing with.
Your opposition to the recognition or to the legislation is
not based on the Lumbee Tribe; it's in opposition to gaming, to
gambling. Am I accurate in that?
Mr. Brooks. Yes, sir. It really has nothing to do with the
Lumbee Tribe. It could be a group of people, it could be a bill
in the North Carolina Legislature that would authorize a
casino.
We have looked at gambling over the last decade. We have
looked at studies all over the country. It is very easy to see
what's happening in communities. The studies are numerous and
they're out there. So we can also apply an economic analysis to
that and look and see what kind of impact it's going to have on
communities.
Like I said, the communities around that area, particularly
those down on the coast that are within easy driving distance,
Southern Pines and Pinehurst, which are right over on the other
side of Lumberton, would be prime targets because of their
tourism and retirement-based communities. You're just taking
money right out of those communities and sending it down the
highway.
Then you get all the social problems. Unless the Lumbee
Tribe can figure out a way to say our people can't gamble
themselves, you get a lot of social problems that come from
that. It just happens.
The Chairman. Just as a means of clarification, and in
reviewing your testimony, this is not opposition to them being
recognized as a Federal tribe. It's in opposition dealing with
the gaming issue.
Mr. Brooks. That's right. No words of support for that
recognition. We just are neutral on that.
The Chairman. There was something you had in your testimony
dealing with Senate action in the 1980s on wilderness bills.
Could you provide for the Committee background on that
particular piece of legislation? That was something that jumped
out at me in your testimony and I'm interested in the history
of that. I would like to have some background information on
that, if you could provide it for the Committee.
Mr. Brooks. Yes, Mr. Chairman, I would be glad to do that.
The Chairman. Thank you very much.
If there are no further questions, I want to than this
panel for your testimony. It has been a long day, but I think
this has been something that is extremely important and a long
time in coming. I appreciate all of the witnesses for their
testimony today.
I want to thank the audience for your decorum during this
hearing. On an emotional issue like this, sometimes things get
out of hand. I appreciate all of you for the way you
represented yourselves here today.
Mr. Faleomavaega. Mr. Chairman.
The Chairman. Mr. Faleomavaega.
Mr. Faleomavaega. I would like to ask unanimous consent
that the full text of my statement be made part of the record.
The Chairman. Without objection.
Mr. Faleomavaega. Mr. Chairman, I want to thank you again
just for the fact we held a hearing on this very important
legislation, Mr. Chairman. It is a tribute to you and I really,
really appreciate this opportunity for the members of our
Committee to hold this hearing.
Thank you.
The Chairman. Thank you.
I will say to this panel before I dismiss you that there
may be further questions that will be submitted to you in
writing, if you could answer those in writing so that they can
be made part of the hearing record. That is the same for all
witnesses who testified here today.
I thank you all very much for being here. The Committee is
adjourned.
[Whereupon, at 1:30 p.m., the Committee adjourned.]
The following information was submitted for the record:
Easley, Hon. Michael F., Governor, State of North
Carolina, Letter submitted for the record
Shapard, Bud, Research Services Officer, Chief,
Branch of Acknowledgment and Research, Bureau of Indian Affairs
(Retired), Letter submitted for the record
[The letter submitted for the record by The Honorable
Michael F. Easley, Governor, State of North Carolina, follows:]
[GRAPHIC] [TIFF OMITTED] T2851.003
[GRAPHIC] [TIFF OMITTED] T2851.004
[The letter submitted for the record by Bud Shapard,
Research Services Officer, Chief, Branch of Acknowledgment and
Research, Bureau of Indian Affairs (Retired), follows:]
274 Little River Campground Road
Pisgah Forest, North Carolina 18768
April 21, 2004
Hon. Richard Pombo
Chairman, House Resources Committee
United States House of Representatives
Washington, DC
Dear Mr. Chairman
The Asheville Citizen-Times newspaper recently carried a front page
article which discussed the controversy over the bill currently pending
in Congress to recognize the Lumbee Indians of North Carolina as a
federally recognized tribe. The article discussed comments and actions
by several congressmen and quoted the principal chief of the Eastern
Band of Cherokees who opposes the legislation, and advocates keeping
the consideration of the Lumbee petition under the purview of the
Bureau of Indian affairs. While this appears on the surface perfectly
reasonable, it is an unconscionable stratagem to prevent the deserved
recognition of the tribe. Consequently, I sent the following letter to
the editor of the Citizen-Times which they published in part. I
respectfully request that the House Resources Committee make this
letter part of the April 1, hearing record on H.R. 898.
Dear Editor:
I don't ordinarily respond to newspaper stories, but the April 3
article ``Cherokee say Lumbee decision should be made by Indian
Affairs'' is so filled with misleading, if not erroneous, information
that I believe a response might be worthwhile. I have some background
with the Bureau of Indian Affairs. I retired from the Bureau after 25
years' service. I wrote the original regulations for the recognition of
Indian tribes, organized the Branch of Federal Recognition in 1978, and
was the branch chief for the first ten years of its operation. After my
retirement in 1987, I assisted 10 unrecognized tribes with the
preparation of their petitions for Federal acknowledgment. I am also a
North Carolinian and have known of the Lumbees since childhood.
I am sure Michell Hicks is a fine Principal Chief for the Eastern
Band of Cherokees, and it is indeed heartwarming to find a tribal
leader who places such confidence in the Bureau of Indian Affairs. In
that, I'm sure he bravely stands alone among tribal leaders in this
country. He does, however, have a big dog in the fight over the
recognition of the Lumbee Indians, and is perhaps more than a bit
biased on this issue. He is also dead wrong on a couple of points.
First, Congress is absolutely the appropriate venue to consider the
Lumbee petition for recognition. Congress has plenary powers over all
governmental interaction with Indian tribes, and should they so choose,
it would be Congress, not the Bureau of Indian Affairs, which should
deal with the Lumbee recognition question. Incidentally, Congress has
never passed specific legislation authorizing the Bureau of Indian
Affairs to recognize tribal groups. Congress has tacitly allowed to
Bureau to continue with the recognition program. Theoretically, our
legislators should be dealing with the Lumbee issue in the first place.
Aside from the fact that Congress has the absolute right to handle any
recognition matter, it is a well known that there has been an all-
pervasive, longstanding prejudice against the Lumbees within the
Bureau. The Lumbees are a very large tribe, by far the largest
unrecognized tribe in the country seeking federal acknowledgment. The
size issue has negatively affected Bureau-wide opinion of the tribe. In
my opinion, there would be a tremendous pressure from within the Bureau
for the acknowledgment branch to reject a tribe of this size.
Another argument apparently raised by Principal Chief Hicks is that
``recognition would mean less federal money for other tribes, including
the 13,000-member Eastern Band.'' There is a special budget item in the
bureau's budget set aside for ``new tribes.'' Not one cent is, or ever
has been, taken from the existing Indian Service budget when a new
tribe is recognized. I believe that more than 20 tribes have been
recognized since the inception of the recognition process in 1978, and
I would defy anyone to show that it has affected the Indian Affairs
budget in any way except to increase it. Perhaps the Principal Chief
should compare the incoming federal funds in 1978 with the amount the
Eastern Band presently receives.
Other factors in the Lumbee case are the acknowledgment regulations
and the acknowledgment branch itself. The regulations were flawed when
they came off the press in 1978. When I wrote the original regulations,
no one was quite sure how to do it. Virtually all of the criteria are
loaded with subjective, waffle words, allowing the bureaucrats in the
branch to make their decisions on often unsupportable personal
interpretations of the regulations. The original regulations were later
revised but the revision only made matters worse.
This raises another issue specific to the Lumbees. The Bureau does
not have the extant capability to deal with a group the size of Lumbee.
When the regulations were drafted, it was originally anticipated that
petitioning groups would have from one hundred to two thousand members.
The Lumbees have, according to your article 53,000 members. Just the
matter of proving the Indian ancestry of 53,000 members is, to say the
least, a gargantuan ordeal. We knew that Lumbee was unique back in the
1980s, and contemplated establishing a separate office in Robson County
when it came time to deal with the Lumbee petition. We also discussed
the possibility of turning the case over to Congress for consideration
since it would cost the taxpayers considerably less, and would not bog
the BIA staff down for years. By the bureau's own admission, it now
takes 15 years for the branch to bumble its way to a decision, and that
is after years of preparation by the petitioner. Now, if the bureau
takes 15 years to complete processing a petition of 2000 people, it
would take something on order of 395 years, give or take a few months,
to complete a petition for a tribe with 53,000 members.
I suppose Representative Charles Taylor has to support the hometown
folks, but his bill to remove the ``1956 stumbling block and let the
Lumbee pursue recognition through the BIA,'' would toss the fate of the
Lumbees into an unfriendly, perhaps even hostile, Bureau, and doom them
to years of unnecessary harassment by the Division of Acknowledgment.
It may be good politics but it is duplicitous and unfair, at best, and
possibly a ploy to stop the recognition of the Lumbees altogether.
I think the Cherokee opposition to the Lumbee recognition is not
based on the fact that the Lumbees are not Indians, but that they are
not good enough Indians--having no traditional dances and not speaking
a traditional Indian language. Like many other recognized and most
unrecognized tribes, much of the Lumbee traditional Indian culture was
lost in their close association with white society over the centuries.
Dances and a fading language however, are not, or should not, be a
determinative factor in federal recognition, if tribal members can
trace Indian ancestry.
Then there is the matter of casinos. One has to wonder if the
casino-rich Cherokees are not more than a little concerned about having
a modicum of casino competition from the Lumbees along the I-95
corridor. As Representative McIntyre said, the process is about federal
recognition, not gambling houses. Nevertheless, as I understand it, a
casino probably would not be a factor since most of the Lumbees are
bible-totin Baptists and are living in the middle of North Carolina's
bible belt, but I'll bet the possibility gives the Cherokees heartburn.
I do find Rep. Walter Jones, Jr. to be disingenuous with his comment
that a Lumbee casino would be an ``almost uncontrollable'' problem. He
is currently accepting $4000 from the casino-owning Cherokees. Perhaps
he should look at things in a more positive vein. If the Lumbees were
recognized and set up a casino, he might double his take.
In my opinion, the bottom line is that the Lumbees should be
recognized, and would have been recognized long ago, if they were not
so doggone big. If recognized, their size would make the Lumbees one of
the largest tribes in the country, and would reduce the Eastern Band to
the second largest tribe in the state. I suggest that this is at the
bottom of the Cherokees' recommendation to delay the Lumbee recognition
by dumping it into the Bureau of Indian Affairs. While it is true that
recognizing the Lumbees would cost the feds a pretty penny, it is the
morally correct thing to do. The Bureau of Indian Affairs is not the
appropriate place to handle the petition. It has neither the staff,
money, nor time to handle a case this size. Even with its present case
load of moderate sized petitioners, it is years behind in its work. The
data, the history and the sociology of the tribe have been thoroughly
researched, written about and generally on the table for years. The
facts are well known, and there is darn little else that the Indian
Service can do but delay the decision. This should be a Congressional
matter. I don't believe the Lumbees can get a fair hearing in the
Bureau, but even if they could, it is unlikely that any of the 53,000
Lumbees living today would ever see the conclusion of the process. I
suspect that this may be exactly what the Cherokees would like.
Sincerely,
Bud Shapard
Research Services Officer
Chief, Branch of Acknowledgment and Research
Bureau of Indian Affairs (Retired)