[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
H.R. 31, LUMBEE RECOGNITION ACT, AND H.R. 1385, THOMASINA E. JORDAN
INDIAN TRIBES OF VIRGINIA FEDERAL RECOGNITION ACT OF 2009.
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LEGISLATIVE HEARING
before the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
Wednesday, March 18, 2009
__________
Serial No. 111-11
__________
Printed for the use of the Committee on Natural Resources
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
or
Committee address: http://resourcescommittee.house.gov
U.S. GOVERNMENT PRINTING OFFICE
48-110 WASHINGTON : 2009
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COMMITTEE ON NATURAL RESOURCES
NICK J. RAHALL, II, West Virginia, Chairman
DOC HASTINGS, Washington, Ranking Republican Member
Dale E. Kildee, Michigan Don Young, Alaska
Eni F.H. Faleomavaega, American Elton Gallegly, California
Samoa John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii Jeff Flake, Arizona
Frank Pallone, Jr., New Jersey Henry E. Brown, Jr., South
Grace F. Napolitano, California Carolina
Rush D. Holt, New Jersey Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona Louie Gohmert, Texas
Madeleine Z. Bordallo, Guam Rob Bishop, Utah
Jim Costa, California Bill Shuster, Pennsylvania
Dan Boren, Oklahoma Doug Lamborn, Colorado
Gregorio Sablan, Northern Marianas Adrian Smith, Nebraska
Martin T. Heinrich, New Mexico Robert J. Wittman, Virginia
George Miller, California Paul C. Broun, Georgia
Edward J. Markey, Massachusetts John Fleming, Louisiana
Peter A. DeFazio, Oregon Mike Coffman, Colorado
Maurice D. Hinchey, New York Jason Chaffetz, Utah
Donna M. Christensen, Virgin Cynthia M. Lummis, Wyoming
Islands Tom McClintock, California
Diana DeGette, Colorado Bill Cassidy, Louisiana
Ron Kind, Wisconsin
Lois Capps, California
Jay Inslee, Washington
Joe Baca, California
Stephanie Herseth Sandlin, South
Dakota
John P. Sarbanes, Maryland
Carol Shea-Porter, New Hampshire
Niki Tsongas, Massachusetts
Frank Kratovil, Jr., Maryland
Pedro R. Pierluisi, Puerto Rico
James H. Zoia, Chief of Staff
Rick Healy, Chief Counsel
Todd Young, Republican Chief of Staff
Lisa Pittman, Republican Chief Counsel
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CONTENTS
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Page
Hearing held on Wednesday, March 18, 2009........................ 1
Statement of Members:
Broun, Hon. Paul C., a Representative in Congress from the
State of Georgia........................................... 62
Hastings, Hon. Doc, a Representative in Congress from the
State of Washington........................................ 3
Prepared statement of.................................... 4
Kildee, Hon. Dale, a Representative in Congress from the
State of Michigan.......................................... 42
Prepared statement of.................................... 42
Rahall, Hon. Nick J., II, a Representative in Congress from
the State of West Virginia................................. 1
Prepared statement of.................................... 2
Wittman, Hon. Robert J., a Representative in Congress from
the State of Virginia, Prepared statement of............... 13
Statement of Witnesses:
Adkins, Hon. Stephen R., Chief, Chickahominy Indian Tribe,
Virginia................................................... 69
Prepared statement on H.R. 1385.......................... 72
Cook, Michael, Executive Director, The United South and
Eastern Tribes, Inc., Nashville, Tennessee................. 93
Prepared statement on H.R. 31........................... 95
Danforth, Gerald L., Retired Chairman, Oneida Tribe of
Indians of Wisconsin, Oneida, Wisconsin.................... 76
Prepared statement on H.R. 31........................... 78
Goins, Hon. James Ernest, Chairman, Lumbee Tribe of North
Carolina, Pembroke, North Carolina......................... 64
Prepared statement on H.R. 31............................ 65
Jones, Hon. Walter B., a Representative in Congress from the
State of North Carolina.................................... 40
Prepared statement on H.R. 31........................... 41
Kaine, Hon. Timothy M., Governor, Commonwealth of Virginia,
Richmond, Virginia......................................... 5
Prepared statement on H.R. 1385......................... 7
Locklear, Arlinda F., Esquire, Attorney for the Lumbee Tribe
of North Carolina, Washington, D.C......................... 80
Prepared statement on H.R. 31............................ 83
McHenry, Hon. Patrick, a Representative in Congress from the
State of North Carolina.................................... 39
Prepared statement on H.R. 31........................... 39
McIntyre, Hon. Mike, a Representative in Congress from the
State of North Carolina.................................... 15
Prepared statement on H.R. 31........................... 26
Moran, Hon. James P., a Representative in Congress from the
State of Virginia.......................................... 27
Prepared statement on H.R. 1385......................... 29
Rountree, Helen C., Ph.D., Professor Emerita of Anthropology,
Old Dominion University, Norfolk, Virginia................. 89
Prepared statement on H.R. 1385.......................... 91
Shuler, Hon. Heath, a Representative in Congress from the
State of North Carolina.................................... 31
Prepared statement on H.R. 31........................... 38
Skibine, George, Deputy Assistant Secretary for Policy and
Economic Development for Indian Affairs, U.S. Department of
the Interior, Washington, D.C.............................. 50
Prepared statement on H.R. 31 and H.R. 1385............. 52
Additional materials supplied:
Easley, Hon. Michael F., Governor, State of North Carolina,
Letter to The Honorable Nick J. Rahall, Chairman, Committee
on Natural Resources, and The Honorable Don Young, Ranking
Minority Member, Committee on Natural Resources, dated
April 18, 2007, submitted for the record................... 20
Hagan, Hon. Kay R., U.S. Senator, State of North Carolina,
Letter to The Honorable Mike McIntyre, U.S. Representative,
State of North Carolina, dated March 18, 2009, submitted
for the record............................................. 22
Harper, Keith M., Attorney at Law, Kilpatrick Stockton LLP,
Washington, D.C., Official statement of President Barack
Obama submitted for the record............................. 24
Hicks, Principal Chief Michell, The Eastern Band of Cherokee
Indians, on H.R. 31, Statement submitted for the record.... 31
Hunt, Hon. James B., Jr., Governor, State of North Carolina,
Letter to The Honorable Bruce Babbitt, Secretary, U.S.
Department of the Interior, dated January 28, 1993,
submitted for the record................................... 18
Hunt, Hon. James B., Jr., Governor, State of North Carolina,
Letter to The Honorable Bruce Babbitt, Secretary, U.S.
Department of the Interior, dated March 11, 1993, submitted
for the record............................................. 19
Martin, Hon. James G., Governor, State of North Carolina,
Letter to Senator Daniel K. Inouye, Chairman, Senate Select
Committee on Indian Affairs, dated July 30, 1991, submitted
for the record............................................. 16
Martin, Hon. James G., Governor, State of North Carolina,
Letter to The President, The White House, dated October 18,
1991, submitted for the record............................. 17
Perdue, Hon. Beverly, Governor, State of North Carolina,
Letter to The Honorable Nick J. Rahall, Chairman, Committee
on Natural Resources, and The Honorable Doc Hastings,
Ranking Minority Member, Committee on Natural Resources,
dated May 1, 2009, submitted for the record................ 23
LEGISLATIVE HEARING ON H.R. 31, ``LUMBEE RECOGNITION ACT,'' AND H.R.
1385, ``THOMASINA E. JORDAN INDIAN TRIBES OF VIRGINIA FEDERAL
RECOGNITION ACT OF 2009.''
----------
Wednesday, March 18, 2009
U.S. House of Representatives
Committee on Natural Resources
Washington, D.C.
----------
The Committee met, pursuant to call, at 10:02 a.m. in Room
1324, Longworth House Office Building, Hon. Nick J. Rahall, II
[Chairman of the Committee] presiding.
Present: Representatives Rahall, Hastings, Kildee,
Faleomavaega, Napolitano, Holt, Bordallo, Heinrich,
Christensen, Kratovil, Smith, Wittman, Broun and Lummis.
STATEMENT OF HON. NICK J. RAHALL, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF WEST VIRGINIA
The Chairman. The Committee on Natural Resources is meeting
today to conduct a hearing on H.R. 31, the Lumbee Recognition
Act, and H.R. 1385, a bill which would grant Federal
recognition to six Indian tribes residing in the Commonwealth
of Virginia.
We have with us several Native Americans and other
individuals from North Carolina and Virginia who have come here
this morning to give and listen to testimony of great
importance.
We are also very honored to have with us today the Governor
of Virginia, Governor Tim Kaine. Governor, we welcome you.
Governor Kaine. Thank you, Mr. Chairman.
The Chairman. Both of these bills were considered by the
Committee last Congress and passed by the House of
Representatives.
With respect to the Lumbee bill, quite frankly, and it
pains me to say this, I feel that we are all starring in the
movie Groundhog Day. The legislation passed the House in the
102nd Congress, it passed the House in the 103rd Congress, and
it passed the House in the 110th Congress, always by large
margins. Yet here we are again, at the beginning of the 111th
Congress, starting the process all over once again.
Time and time again, the hopes and dreams of the Lumbee
people have been raised, only to be dashed as each Congress
fails to get the job done. Yet throughout these long decades,
you have continued to hold your heads high, with the dignity
and respect you deserve.
I do not need to go through the long history of this
struggle. It is well documented and will be further documented
during the course of this hearing, as has the saga of the six
Virginia tribes which are the subject of H.R. 1385.
Two years ago marked the 400th anniversary of the founding
of Jamestown, Virginia. At the time, many Americans were
startled to learn that the very Native Americans who greeted
the English settlers are still not Federally recognized as
tribes.
The members of these six Virginia tribes have faced decades
of deliberate discrimination from policies aimed at stripping
them of their identities. They were targeted and subject to
having their race designation changed on their birth
certificates and all other legal documents, but they have
endured. They have kept their traditions alive and continue to
function as governments.
In closing, I can assure you that the Committee will
continue to press forward on tribal congressional recognition
when the circumstances indicate it is necessary to do so, and
we will also continue to work to reform the Federal
acknowledgment process that has long been considered broken by
all involved in the process, including Congress.
Both the Lumbee and the Virginia tribes require the
attention of Congress. Let us now seriously go about the
business of rectifying wrongs to the Lumbee and the Virginia
tribes.
Before I recognize the Ranking Member, Mr. Hastings, I want
to also recognize two colleagues of ours from whom we will be
hearing on the panel--first being my dear friend from Northern
Virginia, Congressman Jim Moran, who has been quite a leader
not only from his position on the House Appropriations
Committee, but each and every day of the year he has been a
leader for his Virginia tribes and on a number of other issues
that come before this body.
Congressman Mike McIntyre from the State of North Carolina
has also been a tremendous leader for his Lumbee Tribe, and I
wish to recognize his valuable leadership and day-to-day help
on this issue as well.
[The prepared statement of Mr. Rahall follows:]
Statement of The Honorable Nick J. Rahall, II, Chairman,
Committee on Natural Resources
This morning the Committee is meeting to conduct a hearing on H.R.
31, the Lumbee Recognition Act, and H.R. 1385, a bill which would grant
federal recognition to six Indian Tribes residing in the Commonwealth
of Virginia.
We have with us several Native Americans and other individuals from
North Carolina and Virginia who have come here this morning to give,
and listen to, testimony of great importance. We are also honored by
the presence of the Governor of Virginia, Tim Kaine.
Both of these bills were considered by the Committee last Congress,
and passed by the House of Representatives.
With respect to the Lumbee bill, quite frankly, and it pains me to
say this, I feel like we are all starring in the movie Ground Hog Day.
The legislation passed the House in the 102nd Congress. It passed the
House in the 103rd Congress. And it passed the House in the 110th
Congress. Always by large margins.
Yet here we are again, at the beginning of the 111th Congress,
starting the process all over once again.
Time and time again the hopes and dreams of the Lumbee people have
been raised, only to be dashed as each Congress fails to get the job
done. Yet throughout these long decades you have continued to hold your
heads high, with the dignity and respect you deserve.
I do not need to go through the long history of this struggle. It
is well documented, and will be further documented during the course of
this hearing.
As has the saga of the six Virginia tribes which are the subject of
H.R. 1385. Two years ago marked the 400th anniversary of the founding
of Jamestown, Virginia. At the time, many Americans were startled to
learn that the very Native Americans who greeted the English settlers
are still not federally recognized as Tribes.
The members of these six Virginia tribes have faced decades of
deliberate discrimination from policies aimed at stripping them of
their identities. They were targeted, and subjected to having their
race designation changed on their birth certificates and all other
legal documents.
But they have endured, kept their traditions alive and continue to
function as governments.
In closing, I can assure you that the Committee will continue to
press forward on tribal congressional recognition when the
circumstances indicate it is necessary to do so. And we will also
continue to work to reform the Federal Acknowledgment Process that has
long been considered broken by all involved in the process, including
Congress.
Both the Lumbee and Virginia tribes require the attention of
Congress. Let us now seriously go about the business of rectifying
wrongs, to the Lumbee and to the Virginia Tribes.
Thank you.
______
The Chairman. I now recognize the Ranking Member, Mr.
Hastings. We will be hearing from Heath Shuler as well. Where
is Heath?
Voice. He is right there.
The Chairman. OK. Yes. Heath will be testifying perhaps on
a different side of the issue, but we will hear his testimony
as well.
The gentleman from Washington, Mr. Hastings?
STATEMENT OF HON. DOC HASTINGS, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF WASHINGTON
Mr. Hastings. Thank you, Mr. Chairman. I want to thank you
for holding this hearing on H.R. 31 and H.R. 1385.
There are a number of new Members of this Committee, and I
think it is good for them to be able to hear the testimony on
this and the information that they will be receiving.
I want to say generally it seems that the Lumbee and the
six Virginia tribes, they generally enjoy the support of their
respective representatives and in this case their state
Governors. I am one that generally believes in deferring to the
judgment of Members on matters affecting their district.
Unfortunately, this principle is not consistently applied in
this Congress, but that would be an issue that can be discussed
in other venues, I suppose.
Having said this, I do have concerns with H.R. 31 and H.R.
1385. Recognition of a tribe conveys a unique set of benefits,
legal immunities and responsibilities. It affects the tribe's
individual members, and it has an impact on states, counties,
local towns and other tribes. It affects the Federal
government's ability to deal with hundreds of recognized tribes
at a time when the Federal budget is stretched thin and a huge
backlog of unmet needs exist across Indian country.
These factors in and of themselves don't necessarily mean
tribal recognition is not warranted for the Lumbee or the six
Virginia tribes, but these are the practical and political
realities that must be faced when the choice is made to seek
recognition in the legislative arena.
Another concern I have is how the Lumbees and the six
Virginia tribes are deemed to be tribes, but not the other
tribes that have petitioned through the Department of the
Interior for recognition. Some of these tribes petitioned long
ago, even as early as the 1970's and the 1980's. In many cases,
or in some cases, their petition are considered ready.
Also, other Members of Congress have sponsored bills to
recognize their tribes in their states or districts. There
seems to be no clear reason why these groups are not under
consideration today while the Lumbees and the six Virginia
tribes are receiving such consideration and likely are to be
considered on the House Floor in the near future.
Even though the Bureau of Indian Affairs regulatory process
for considering recognition petitions has its problems, it does
use a fixed set of seven mandatory criteria to judge whether a
tribe is a tribe within the meaning of the Federal law.
I hope the Committee carefully considers whether it would
be more appropriate to defer to this process. If we do not,
then perhaps such a lack of faith in this system suggests it is
time for Congress to stop just ignoring the issue and instead
examine the purpose and continued usefulness of the BIA process
altogether.
I say that for both recognized tribes and those seeking
recognition. It is a matter of fundamental fairness to ensure
recognition is not given in an arbitrary manner that could
undermine the status of all who hold it.
Mr. Chairman, I hope there will be further discussions as
to what kind of criteria we use in considering H.R. 31 and H.R.
1385 and whether such criteria will be applied equally for
other petitioners. Neither this Committee, nor for that matter,
Congress should be acting in an arbitrary, unclear and
subjective way when considering recognition of a tribe.
Thank you very much, Mr. Chairman.
[The prepared statement of Mr. Hastings follows:]
Statement of The Honorable Doc Hastings, Ranking Member,
Committee on Natural Resources
Mr. Chairman, thank you for holding a hearing on H.R. 31 and H.R.
1385. There are a number of new Members of the Committee who may not
have been exposed to tribal recognition issues before today and this
hearing should be very informative for them.
It seems that the Lumbee and the six Virginia tribes generally
enjoy the support of their respective Representatives and State
governors. I am one that generally believes in deferring to the
judgment of Members on matters affecting their districts.
Unfortunately, this principle is not consistently applied in Congress.
Having said this, I have concerns with H.R. 31 and H.R. 1385.
Recognition of a tribe conveys a unique set of benefits, legal
immunities, and responsibilities. It affects the tribe's individual
members, and it has an impact on states, counties, local towns and
other tribes. It affects the federal government's ability to deal with
the hundreds of recognized tribes in a time when the federal budget is
stretched thin and huge backlogs of unmet needs exist across Indian
Country.
These factors in and of themselves don't necessarily mean tribal
recognition is not warranted for the Lumbee or the six Virginia tribes.
But these are the practical and political realities that must be faced
when the choice is made to seek recognition in the legislative arena.
Another concern I have is with how the Lumbees and the Virginia
tribes are deemed to be tribes, but not the other tribes that have
petitioned for recognition. Some tribes petitioned long ago, even as
early as the 1970's and 1980's. Their petitions are considered ready.
Other Members of Congress have also sponsored bills to recognize other
tribes. There seems to be no clear reason why these groups are not
under consideration today, while the Lumbees and the six Virginia
tribes are receiving such consideration and are likely to be considered
on the House Floor in the near future.
Even though the Bureau of Indian Affairs regulatory process for
considering recognition petitions has its problems, it does use a fixed
set of seven mandatory criteria to judge whether a tribe is a tribe
within the meaning of Federal law. I hope the Committee carefully
considers whether it might be more appropriate to defer to this
process. If we do not, then perhaps such a lack of faith in this system
suggests it is time for Congress to stop just ignoring the issue and,
instead, examine the purpose and continued usefulness of the BIA
process altogether. For both recognized tribes and those seeking
recognition, it is a matter of fundamental fairness to ensure
recognition is not given in an arbitrary manner that could undermine
that status for all who hold it.
Mr. Chairman, I hope there will further discussion as to what kind
of criteria we should use in considering H.R. 31 and H.R. 1385, and
whether such criteria will be applied equally for other petitioners.
Neither this Committee, nor Congress, should be acting in an arbitrary,
unclear and subjective way when considering recognition of a tribe.
Thank you.
______
The Chairman. Thank you, Mr. Hastings.
The Chair will move on to our first witness today, The
Honorable Tim Kaine, the Governor of the Commonwealth of
Virginia. We recognize or the Chair recognizes certainly the
time constraints under which the Governor is operating today.
We will attempt to be gentle with our questions and brief and
allow you to proceed now in any manner that you wish.
We do have your prepared testimony. It will be made a part
of the record as if actually read, and you may proceed as you
desire.
STATEMENT OF HON. TIM KAINE, GOVERNOR,
COMMONWEALTH OF VIRGINIA, RICHMOND, VIRGINIA
Governor Kaine. Thank you, Mr. Chairman. It is an honor to
be with you this morning on a very important issue. I will just
summarize a couple of points from the written testimony.
To begin, I want to thank the Chair for your leadership on
this issue and your support for the Virginia tribes. To
Congressman Moran, who will speak later, his strong leadership
on this issue is much appreciated in Virginia, as well as the
co-sponsors of this bill, Congressman Wittman and other members
of the Virginia delegation. We appreciate your leadership.
This bill deals with tribes who encompass the best known
stories of the interaction between those who settled this
country from Europe and the Native populations who lived in
this land when the settlement occurred. There is no story that
is better known about the interaction between the Europeans who
came to this country and became Americans and the Indian tribes
than the story of the Jamestown settlers, Pocahontas and the
Powhatan Nation.
It is a story that is a powerful story in our memories, but
also it is a powerful story even to today because if it were
not for the forbearance of these tribes and even the assistance
of these tribe during the early difficult years at Jamestown,
it is very clear that the Jamestown settlement would have
perished and then the history of Virginia and of the Nation
would have been a different history.
And yet despite the fact that this is probably the best
known story of the interaction between Native Americans and
these European settlers, there are 562 Federally recognized
tribes and none of the Virginia tribes are recognized, and so
that naturally calls forth the question why, and I think there
are two reasons. Neither of these reasons should stand as a bar
to recognition of these tribes. In fact, I think the statement
of the reasons demonstrates why this bill is so powerful and so
right.
First, the Virginia tribes did something that in retrospect
was unfortunate. They made peace with the English before we had
an American government. They were willing to lay down arms and
they were willing to welcome settlers to this new world with
the English Government in the 1600s, and as a result they never
entered into treaties with the U.S. Government, and that has
made the process of their recognition more difficult.
There is a wonderful tradition that I get to enjoy as
Governor of Virginia. Every year since 1677, as a result of a
treaty with King Charles II, the Virginia tribes come to the
Governor's Mansion and present a tribute to the Governor in
lieu of taxes, a tribute of wild game and gifts, and that has
been an unbroken tradition now for over 300 years. But it
should not be held against these tribes that they made peace
with our people before there was an American government.
It is also a bit ironic they made peace with our people,
but members of these tribes have fought side-by-side with our
people in every war that this country has been involved with
from the Revolutionary War to the present. These are great
patriots who have been involved side-by-side with us ever since
those treaties were signed in the 1670s.
So the first reason for nonrecognition of these tribes is
basically they laid down arms and made peace with us too soon.
The second reason is a more sinister reason. Beginning in 1924,
Virginia passed a law, the Racial Integrity Act, that was in
place from 1924 until it was struck down by the Federal Courts
in 1967.
That law, which came out of the misguided eugenics movement
in the 1920s, systemically denied the heritage and the
recognition of Virginia Indians as Indians, and in fact under
the very strict application of that law by a Virginia public
official, Walter Plecker, for over 25 years the documents and
records pertaining to Virginia tribal members were
systematically altered and changed, and everyone who was a
Native American had their records changed to colored.
That was the state policy, and because the records were
changed it made it so much more difficult for these tribes to
present the historic case that would be required to go through
the BIA process. Virginia perpetrated this monstrous injustice
for a very long time. Thank goodness it was struck down.
In the 1980's, under successive leadership of both
Democratic and Republican Governors and Democratic and
Republican members of our state legislature, what we have done
at the state law is to apologize, to state recognize these
tribes with a state recognition beginning in the 1980's and to
begin an earnest quest on behalf of the overwhelming majority
of Virginians to see that these injustices are righted and that
the Virginia tribes be recognized.
And so those are the two reasons why these tribes that are
among the best known in the United States have never been
recognized by the Federal government. They made peace with the
English rather than with the United States, and their records
were systematically altered due to official state policy in the
Commonwealth for over 40 years. Neither of these reasons should
block the recognition of these tribes. In fact, the two reasons
I think really compel the reverse response; that it is now past
time that they be recognized.
Let me say one final word just as a personal story. Mr.
Chairman, you referred to the Jamestown commemoration. It has
been one of the great pleasures of my term as Governor to be
able to preside over the commemoration of the 400th anniversary
of Jamestown Island, and I had your Governor, because your
state is named after the virgin queen, Queen Elizabeth, with me
as we welcomed Queen Elizabeth to the Governor's Mansion and to
Jamestown in May of 2007.
That commemoration gave us reason for pride, but also
sadness. In 1957, when we celebrated the 350th anniversary, the
stories of the Virginia Indian tribe were just sideshows,
entertainment. It wasn't seriously told, and there wasn't
serious recognition and appreciation for the amazing role that
these tribes played in our future to this day.
In 2007, we wanted to do it better and so the stories of
these tribes were an integral part of what we celebrated as
Jamestown's 400th. The tribes went to England and were
recognized as royalty, as a nation that entered into treaties
with the English Government, received a recognition on the
English shores that they never received here.
That was a wonderful and a bittersweet moment, but we all
were struck in trying to recognize 400 years of Virginia and
American history that these tribes were still not recognized,
so although we were able to include them and tell the story in
a completely different way than we had done it 50 years ago,
that felt good.
And yet there was a hollowness in our feeling that we had
come a long way because we still weren't completely there, and
it took away from our 400th commemoration that these tribes
were still not recognized Federally.
Again, we bear a huge burden of this on the state side, and
I will candidly admit that as I have done. Had it not been for
this policy of rewriting the records the BIA process might have
been easier, so we bear the burden for that 40 years of
injustice in dealing with these tribes, but we have now
recognized them.
With the tremendous history and connection of these tribes'
stories with the American stories, it would be our supreme
delight as a Commonwealth if these tribes could join the 560
plus tribes that have been recognized by the Federal government
and have their status as sovereign nations finally acknowledged
by this nation.
Thank you very much.
[The prepared statement of Governor Kaine follows:]
Statement of The Honorable Timothy M. Kaine, Governor,
Commonwealth of Virginia
Thank you for the opportunity to speak with you today in support of
Federal Recognition for Virginia's Native American Tribes. We are proud
of Virginia's Native Tribes and the contribution their communities have
made to our Commonwealth and the Nation.
I am here today because recognition of these Tribes by the Federal
Government is long overdue.
As a part of my Inaugural Address on January 14, 2006 at the
Colonial Capital in Williamsburg, Virginia, I stated:
``Our Virginia might not exist today were it not for the
generosity extended to those first settlers by the native
Virginia tribes living in this region. Without the hospitality
of Chief Powhatan...those in Jamestown would have
perished...And, we should use this historic time to help those
who first helped us by working with the federal government to
see that Virginia's native Indian tribes are finally
recognized.''
Almost immediately after first landing at Jamestown in 1607, the
early English settlers and explorers came into contact with the
Virginia Tribes living throughout Eastern Virginia. While the
relationship between the Native Tribes and the English settlers was not
always easy, there can be little doubt that had it not been for
accommodations on both sides, the settlement would not have survived.
Indeed, Virginia's Native American Tribes played an integral role in
helping the settlers survive those first harsh winters.
Almost two years after the 400th anniversary of the first permanent
English Settlement at Jamestown, it is especially tragic that these
tribes still have not received equal status with the 562 other
Federally Recognized Tribes in the United States.
How can we commemorate their history and not recognize their
existence? Now is the time to reconcile history. Let us, once and for
all, honor their heritage. A heritage, I might add, that has been
sorely tested by centuries of racial hostility and state-sanctioned
coercive actions.
The eight Virginia Tribes--the Chickahominy, Eastern Chickahominy,
Mattaponi, Monacan Indian Nation, Nansemond, Pamunkey, Rappahannock and
the Upper Mattaponi--are unique. Unlike most tribes that obtained
federal recognition when they signed peace treaties with the federal
government, tribes in Virginia signed their peace treaties with the
British Monarchy.
Most notable among these was the Treaty of 1677 between
Virginia's Tribes and Charles the II--well before the establishment of
the United States. This treaty has been recognized by the Commonwealth
of Virginia every year for the past 332 years when the Governor of
Virginia accepts tribute from the Tribes in a ceremony now celebrated
at the State Capitol.
However, while the Virginia Tribes have received official
recognition from the Commonwealth of Virginia, acknowledgement and
officially recognized status from the federal government has been
considerably more difficult due to systematic mistreatment over the
past century.
I do not believe that the Virginia Tribes should be penalized for
having decided early on to begin peaceful relations with the settlers
who are our ancestors.
Recent History of Tribal Recognition Issue in Virginia--
For 34 years, from 1912 to 1946, Walter Ashby Plecker, at the
Virginia Bureau of Vital Statistics, led an effort to actively destroy
vital records and evidence of Indian existence in the Commonwealth.
This practice was supported when the eugenics movement was endorsed
by Virginia Universities and the Virginia General Assembly enacted the
Racial Integrity Act in 1924--a race based statute that forced all
segments of the population to be registered at birth in one of two
categories ``white'' or ``colored''. From that point on no reference
was allowed for other ethnic distinctions and no reference was allowed
for Indian Tribal peoples in Virginia. Members of Virginia's Tribes
were denied their identities as Native peoples.
Essentially, Virginia declared, by law and the systematic altering
of key documents, that there were no Indians in the Commonwealth as of
1924. The passage of these race based statutes in Virginia made it
criminal for Native peoples to claim their Indian Heritage. For
instance, married couples were denied marriage certificates or even
forbidden to obtain the release of their newborn child from a hospital
until they changed their ethnicity on the state record to read
``colored.''
Ironically, 1924 is the same year that the Federal
Government guaranteed Native Americans full citizenship and the
corollary right to vote.
The Racial Integrity Act was not struck down by the Federal Courts
until 1967.
From 1983-1989 each Tribe gained official Recognition in the
Commonwealth of Virginia.
In 1997, then Governor George Allen signed legislation
acknowledging the ``paper genocide'' of Indians in Virginia. This
legislation provided that state records be corrected that had been
deliberately altered to list Virginia Indians on official state
documents as ``colored.'' In 1999, the Virginia General Assembly
adopted a resolution calling upon Congress to enact legislation
recognizing the Virginia Tribes.
Each of the tribes have also petitioned the U.S. Department of
Interior and the Bureau of Indian Affairs (BIA) for official
recognition under the process set forth in 25 CFR Part 83, ``Procedures
for Establishing that an American Indian Group Exists as an Indian
Tribe.'' The Virginia Tribes have also submitted letters of intent and
partial documentation to petition for Federal acknowledgment.
Unfortunately, these applications have been denied as incomplete.
Without proper records and complete documentation the Tribes cannot
fulfill the requirements of the BIA process. As a result of years of
systematic efforts to deny their heritage the ability of Tribes to
comply with the BIA process has become nearly impossible.
These are the two reasons why the Virginia Tribes have never been
recognized: they laid down their arms and made peace in the 1670s and
then their collective heritage was denied by Commonwealth policy during
the 1900s.
Helen Rountree, noted anthropologist and expert on Native-Americans
in Virginia, has spent her life documenting the Virginia Tribes.
Through her thorough analysis and research the Commonwealth of Virginia
was provided with sufficient authentication to officially recognize
these tribes. I believe that that research should also be sufficient to
address the damage of the Racial Integrity Act era.
Need for Congressional Action--
It is clear that political action is needed to remedy what
bureaucracies cannot fix. Justice begs for a congressional response.
Six of the Tribes first came to Congress seeking recognition in
1999. They joined together to request Congressional action on their
application for Federal Acknowledgement through the ``Thomasina E.
Jordan Indian Tribes of Virginia Federal Recognition Act'' (this year
it is H.R. 1385). The Tribes view Federal recognition as a basic issue
of equality with the other 562 tribes. The six Tribes that are working
together for recognition under H.R. 1385 are the Chickahominy, Eastern
Chickahominy, Monacan Indian Nation, Nansemond, Rappahannock and the
Upper Mattaponi.
Under the United States Constitution Indian Commerce Clause,
Congress has the authority to recognize a ``distinctly Indian
community'' as an Indian tribe. I believe that the Tribes' situation
clearly distinguishes them as excellent candidates for Congressional
action.
Under H.R. 1385, the six Tribes would finally, and at long last, be
granted federal recognition. At the same time, I feel that the
safeguards provided in this legislation would address some Virginians'
concerns about Class III style gaming in the Commonwealth. Indeed, this
legislation would give both the Governor and the General Assembly
strict control over any possibility of the development of Indian
Gaming.
I commend the committee for giving its time and attention to the
Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act.
I would like to especially thank Chairman Nick Rahall (D-WV) for his
leadership on this important issue.
I would also like to thank Representative Jim Moran (D-VA) for his
years of work on behalf of the native peoples of Virginia and his
testimony today. I am also heartened by the bipartisan Virginia
Delegation support for H.R. 1385 and thank Representatives Gerry
Connolly (D-VA), Tom Perriello (D-VA), Rob Wittman (R-VA), and Bobby
Scott (D-VA) for their original co-sponsorship of the legislation.
It is time for these Virginia native peoples to be recognized by
their own country. Indeed, Federal recognition of the Tribes of
Virginia is long overdue.
Congress has the power to recognize these Tribes. It has exercised
this power in the past, and it should exercise this power again with
respect to our Virginia Tribes.
I strongly believe that our recent commemoration of the 400 years
of modern Virginia history will be incomplete without successful
Federal recognition of these Virginia Tribes. Virginians consider this
a matter of fundamental justice and an acknowledgment of the fact that
we would not be what we are today had these Tribes supported the
settlement at Jamestown Island.
The Virginia Tribes are a part of us. They have been in our
schools, worked with us, and served in all of our wars from the
Revolution to the current day. This should be acknowledged. They should
be officially recognized.
It is time to finally right an historic wrong for Virginia and the
Nation.
Thank you for the opportunity to testify today on this important
issue and I welcome your questions.
______
The Chairman. Thank you, Governor. We appreciate very much
the manner in which you delivered your testimony, empathy and
certainly a recognition of the struggle that these tribes have
faced. We appreciate very much your being with us today.
Governor Kaine. Thank you.
The Chairman. I have no questions. The gentleman from
Washington?
Mr. Hastings. Thank you, Mr. Chairman, and thank you,
Governor Kaine, for being here. I just have one question, maybe
two.
Do you support the provision in that bill that prohibits
the tribes from conducting gaming under the Indian Gaming
Regulatory Act?
Governor Kaine. Congressman, I do. If I could write it
myself, I would rather have them have the exact same rights as
Virginia citizens have--no more, no less--and we don't have
gaming in Virginia.
Mr. Hastings. Right.
Governor Kaine. I don't think they should have less rights
than Virginia citizenry as a whole has.
The language currently is even stronger than that so that
if 50 years from now the Governor or the general assembly were
to allow more gaming in Virginia, and it is not that likely
even 50 years from now, I think they should have the same
rights as other Virginia citizens, but the tribes have always
maintained that gaming and gambling is not their issue at all
and so this language, which I think will help it pass, is
language that I support.
Mr. Hastings. Do you think in a larger sense that that
should be a condition of recognition of tribes in general?
Governor Kaine. I don't know. Really the circumstances of
tribes in different states is not something that I have really
studied.
I do know these tribal leaders in Virginia pretty well. We
have breakfast every Thanksgiving together, as I have
mentioned.
Mr. Hastings. Yes.
Governor Kaine. And others are members of my
administration. They are very unequivocal in their intention
not to have gaming or gambling, so that has not been a
challenging issue in this context.
Mr. Hastings. Good. OK. Thank you very much, Mr. Chairman.
I yield back.
The Chairman. The gentleman from American Samoa, Mr.
Faleomavaega?
Mr. Faleomavaega. Thank you, Mr. Chairman. I want to thank
you for your leadership and our distinguished Ranking Member
also for bringing these important pieces of legislation for
consideration by our Committee.
I also want to offer my personal welcome to the Governor of
the State of Virginia, Governor Kaine, and my good friend and
colleague, Congressman Jim Moran, for his leadership and
efforts in bringing this before the Committee.
I was very moved by Governor Kaine's statement of the fact
that no other leaders in the State of Virginia would know more
about the history and the relationship between the State of
Virginia and some five or six Indian tribes, and after 400
years of this relationship it now has finally been brought to
the forefront.
I am certain that many Members of this Committee have never
even known the fact that all these laws have caused a lot of
problems. I recall that we even had miscegenation statutes that
prohibited the states from marrying any person of color. Call
it a racist statute as far as I am concerned.
I want to share with Governor Kaine and would certainly
welcome his comments to the fact that I had a little bit of
experience in reading and trying to review exactly what the
essence of what has been our relationship, our national policy
toward the Native American Indians.
I think our first national policy was to kill the Indians,
get rid of them. Then the next national policy that we tried to
propound or even promote, assimilate the Indians. Make them
part of all Americans. Don't even recognize them and their
given character and ethnic recognition, so assimilation was the
next national policy that we had in mind. Then the termination.
Don't even recognize Indians.
The problem now of recognition. In 1934, we passed a
statute, a national statute, saying in order to be an American
Indian you have to be 50 percent blood or more. If that is not
the most racist statute that I have ever heard. How do you
blood quantify a human being? Does 49.9 percent make you less
Indian, even if it were born and raised in the reservation?
I mean, this is the kind of national policy that the
Indians have had to ensure for all these years. Now we have
what is known as the Federal acknowledgement process. This is a
regulatory process, and there is nothing in the Constitution
nor any Federal statute that prevents the Congress at any time
to give Federal recognition to any tribe.
So I don't think we are circumventing the process. The
problem is that this process has been an absolute failure. We
are trying at least as Members of this Committee to see if we
can propose legislation that will better improve the process.
Mr. Chairman, I recall years ago in this very Committee we
had the gentleman to testify who actually wrote the Federal
acknowledgement process, coming up with some seven criteria
that these Indian tribes have had to go through to say OK, I am
an Indian, even to the point of examining the teeth that they
have. What makes them separate as Indians to the rest of
America? I mean, you talk about such an undignified--it is just
unbelievable what the American Indians have had to go through
in doing this.
I will say, Governor Kaine, I really, really appreciate
your comments, your statement concerning this proposed
legislation. Mr. Chairman, my good friend, the distinguished
Ranking Member, I absolutely support this piece of legislation,
and I hope my colleagues will do the same.
One question just to Governor Kaine. When you said was it
Pocahontas that was primarily involved?
Governor Kaine. Pocahontas and Powhatan, yes.
Mr. Faleomavaega. And would it be safe to say that without
these Indians our first settlers that came from the Old World
would have died if it had not been for the love and affection
from one human being to others?
Governor Kaine. Absolutely. There is no doubt the Jamestown
settlement would have perished if it had not been for the
forbearance and the assistance of the Virginia tribes who
enabled it to survive.
Mr. Faleomavaega. I just want to say something in closing.
I remember seeing a cartoon, Mr. Chairman. It was a spaceship.
There were two Indians talking to each other, and this
spaceship came down. They said oh, no. Here we go again.
Thank you, Mr. Chairman.
The Chairman. The gentleman from Virginia, Mr. Wittman?
Mr. Wittman. Thank you, Mr. Chairman. I want to begin by
thanking Chairman Rahall and Ranking Member Hastings for
calling this hearing and for this bill to come before us.
Governor Kaine, welcome today. It is good to have you here.
Governor Kaine. Thank you.
Mr. Wittman. Good to see you. Representative Moran, thank
you so much for sponsoring the bill. Both of you have been
great leaders on this issue, and I think it is near and dear to
all of our hearts concerning recognition for Virginia tribes.
It is absolutely long overdue, and I appreciate, Governor, your
leadership and, Representative Moran, your leadership on this
issue.
I wanted to begin by talking a little bit about the
Commonwealth's efforts to recognize tribes. Can you tell us a
little bit about the criteria the Commonwealth uses for
recognition for tribes, and is that process similar to the BIA
process?
Governor Kaine. We do not have a regulatory agency that
would be the equivalent of the BIA, but beginning again in the
1980's, and I don't have the precise dates, there was a
profound recognition that this Racial Integrity Act had been a
monstrous injustice, that these tribes were part of who we are
and helped us become the Commonwealth we are.
And so the legislature, Congressman Wittman, began to enact
statutes to recognize tribes based on historic research that
had been presented by individuals with the tribes themselves.
And also academics who have studied this issue often made it
the focus of their entire career and so the tribal recognitions
that were done, they were done in a legislative process, but
they were based upon historic materials that were presented and
scrutinized by the legislature prior to the recognitions.
Mr. Wittman. Can you tell us a little bit about what gave
the Commonwealth the level of certainty in recognizing these
tribes, just as where the level of validity stood in their mind
about recognizing tribes?
Governor Kaine. Congressman Wittman, because these were
actions taken by the legislature before I was involved in state
politics I can kind of report secondhand.
Mr. Wittman. Yes.
Governor Kaine. But it was scrutiny of the historic records
and academic materials and oral folklore of the tribe members
themselves.
Two of the tribes in Virginia have reservation lands that
were committed to them beginning with the treaties, but the six
tribes that are the focus of this bill, they have tribal
properties but not sort of in the formal reservation sense.
But they presented their own material, and then the
academics in Virginia, both working with the tribes and working
at some of the state's institutions, gathered other material.
These were not close questions. It was not difficult for the
legislature ultimately to review the historic record about
these tribes and concludes that, yes, they were a part of these
original Virginia tribes that welcomed the English to Virginia
in 1607.
Mr. Wittman. It seems to where the process Virginia then
has pursued is very, very similar to the BIA process and their
designations, so it seems like that Virginia has already gone
through that process, something very similar to what has gone
forth on other tribes that have been recognized at the Federal
level, so it seems like the ground has kind of been paved by
Virginia.
Governor Kaine. Indeed. Indeed.
Mr. Wittman. You know, you brought up a great point earlier
talking about the service of our Native American tribes in
Virginia in the military.
Can you tell us a little bit about the legacy of service of
our tribal members and also how the recognition effort would
affect them?
Governor Kaine. Absolutely. Absolutely, Congressman
Wittman. We have been able to determine, and we will submit
this to the Committee, that there are hundreds of members of
these Virginia tribes that have served in the military at least
from the Civil War forward. Previous to the Civil War the
records are more difficult, but from the Civil War forward
there are hundreds.
We can say with confidence that among these tribes there is
at least one Silver Star winner, two Bronze Star winners and--a
little irony that we kind of discovered as we did this
research--at the same time as Virginia was denying the tribal
membership of the Indians in our Racial Integrity Act, the U.S.
military was stamping on the dog tags of these brave folks in
the service Native American, so the U.S., at least in the
military, was recognizing these individuals as tribal members
at the same time that Virginia was erasing the record of their
being members of these proud tribes.
Mr. Wittman. Well, that is great. I tell you, we appreciate
their service, and we hear many stories of their bravery during
these American conflicts. They stood there shoulder to shoulder
with other folks that had recognition and more rights than our
Native American folks. We want to make sure that we are doing
everything we can obviously to help them out.
I again want to thank you for your leadership on this
issue. You have been tremendous there in Virginia not only in
your vocal support, but also in the things that you do, in the
actions that your administration takes and the appointments
that you make in making sure that you not only walk the walk
or, excuse me, talk the talk, but walk the walk as far as how
we should be recognizing our Native American tribes there in
Virginia, so we really appreciate that, and thank you so much
for coming up today.
Governor Kaine. Thank you, Congressman Wittman. Thank you
very much.
Mr. Wittman. Thank you, Mr. Chairman.
[The prepared statement of Mr. Wittman follows:]
Statement of The Honorable Robert J. Wittman, a Representative in
Congress from the State of Virginia, on H.R. 1385
Chairman Rahall,
Thank you for your support and for calling this hearing on H.R.
1385, the Thomasina E. Jordan Indian Tribes of Virginia Federal
Recognition Act. I appreciate Governor Kaine's time and testimony in
support of federal recognizing Virginia's Tribes. Also, I appreciate
and want to recognize Rep. Jim Moran who has long championed this
effort. Finally, thanks to Chief Adkins of the Chickahominy Tribe and
Dr. Rountree for their testimony.
As a cosponsor of H.R. 1385, I support Congressional action to
federally recognize Virginia's Indian tribes. My congressional district
includes the tribal seats of the Upper Mattaponi in King William County
and the Rappahannock Tribe in King and Queen County.
I recognize and appreciate the Bureau of Indian Affairs (BIA)
``federal acknowledgement process'' and their preference for
recognition to work through the Department of Interior. However, I
believe that a strong case can be made that due to several factors
Virginia Indian recognition may be an exception to that rule.
As the witnesses have outlined today, law and politics of the
Commonwealth of Virginia discriminated and effectively ``erased'' legal
documentation of the Virginia Indian's heritage. After the Civil War,
policies forced Indians to register birth, death and other official
documents as either ``white'' or ``colored.'' These polices have made
it difficult if not impossible to ever meet the BIA's criteria for
recognition.
These Virginia Indian tribes are important culturally and
historically to the Commonwealth of Virginia. Tribal ancestors from
these tribes populated coastal Virginia when Captain John Smith and the
first permanent English colony in the ``new world'' was founded at
Jamestown in 1607. These ``first contact'' tribes' history and culture
has been intertwined with birth of our nation for over 400 years.
Today, these tribes continue to preserve a culture and heritage
important to Virginia and the nation.
I support H.R. 1385, and look forward to Congressional action on
this important effort to federally recognize Virginia's Indian tribes.
______
The Chairman. The gentlelady from Guam, Ms. Bordallo?
[No response.]
The Chairman. The gentleman from Nebraska, Mr. Smith?
[No response.]
The Chairman. No? OK. The gentleman from New Mexico, Mr.
Heinrich?
[No response.]
The Chairman. Governor, we said we would get you out by
10:30. It is now 10:29 and 45 seconds. Thank you for being with
us.
Governor Kaine. Thank you, Mr. Chairman. Thank you to the
Members of the Committee. I appreciate it.
The Chairman. Our next panel is composed of five of our
colleagues, two being co-sponsors of the pending legislation
before our Committee, first being Congressman Mike McIntyre
from North Carolina in favor of H.R. 31, who has been an
invaluable leader on this issue; Congressman Jim Moran, whom I
have already recognized and salute for his leadership on H.R.
1385.
Two of the next three gentlemen are former members of this
Natural Resources Committee, the gentleman from North Carolina,
Health Shuler, the gentleman from North Carolina, Mr. Walter
Jones, and they are also joined by our colleague from North
Carolina, Patrick McHenry.
We welcome all of you to the Committee on Natural
Resources. We do have your prepared testimonies. It will be
made part of the record as if actually read, and you may
proceed in the order that I recognized in whatever summary
manner you wish.
Mike, do you want to go first?
STATEMENT OF HON. MIKE McINTYRE, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NORTH CAROLINA
Mr. McIntyre. Thank you, Mr. Chairman, and thanks to all of
you for having this opportunity for us to testify about the
Lumbee Indian Tribe today.
Chairman Rahall, the members of the Lumbee Tribe and I
appreciate your leadership and support and persistence in the
fight for Lumbee Indian Federal recognition. We know that the
Lumbee Tribe has no better friend than this Congress and you,
Mr. Chairman, and I thank you on behalf of all the Lumbee
members when I say thank you for your consistent leadership in
this issue.
I would like to ask, Mr. Chairman, unanimous consent to
place into the record over the last 32 years--Jim Hunt, Jim
Martin and Mike Easley--and a letter from our newest Governor,
Governor Beverly Perdue. The letter should be forthcoming.
I would like to ask unanimous consent to enter all four of
these letters into the record.
The Chairman. Without objection. It will be made part of
the record.
Mr. McIntyre. Thank you.
[NOTE: The letters listed in chronological order follow:]
Martin, Hon. James G., Governor, State of North
Carolina, Letter to Senator Daniel K. Inouye, Chairman, Senate
Select Committee on Indian Affairs, dated July 30, 1991,
submitted for the record
Martin, Hon. James G., Governor, State of North
Carolina, Letter to The President, The White House, dated
October 18, 1991, submitted for the record
Hunt, Hon. James B., Jr., Governor, State of
North Carolina, Letter to The Honorable Bruce Babbitt,
Secretary, U.S. Department of the Interior, dated January 28,
1993, submitted for the record
Hunt, Hon. James B., Jr., Governor, State of
North Carolina, Letter to The Honorable Bruce Babbitt,
Secretary, U.S. Department of the Interior, dated March 11,
1993, submitted for the record
Easley, Hon. Michael F., Governor, State of North
Carolina, Letter to The Honorable Nick J. Rahall, Chairman,
Committee on Natural Resources, and The Honorable Don Young,
Ranking Minority Member, Committee on Natural Resources, dated
April 18, 2007, submitted for the record
Hagan, Hon. Kay R., U.S. Senator, State of North
Carolina, Letter to The Honorable Mike McIntyre, U.S.
Representative, State of North Carolina, dated March 18, 2009,
submitted for the record
Perdue, Hon. Beverly, Governor, State of North
Carolina, Letter to The Honorable Nick J. Rahall, Chairman,
Committee on Natural Resources, and The Honorable Doc Hastings,
Ranking Minority Member, Committee on Natural Resources, dated
May 1, 2009, submitted for the record
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Mr. McIntyre. Mr. Chairman, as we look at the situation
I would also like to lay before the Chairman an editorial from
the Fayetteville Observer, which is a newspaper in North
Carolina that has recently had a series of articles that go
into great detail about this situation and gives a very strong
opinion about why Lumbee recognition is important in its
investigative capabilities.
And also we have a statement from President Obama in
support of this bill and would like to enter that in the record
as well.
The Chairman. Without objection. Your request is granted.
Mr. McIntyre. Thank you.
[The statement from President Obama follows:]
Official Statement of President Barack Obama submitted for the record
by Keith M. Harper, Attorney at Law, Kilpatrick Stockton LLP,
Washington, D.C.
Because of unfortunate congressional action in the 1950s, the
Lumbee Indians have been deprived of the ability other non-federally
recognized tribes enjoy to seek federal acknowledgment through
administrative means. Accordingly, consideration of Lumbee recognition
has delayed 50 years. Senator Obama believes there are rare
circumstances when Congress should intervene and recognize a tribal
group, when the equities of a particular situation call out for
immediate and decisive action. The case of the Lumbee Indians of North
Carolina is one such rare case. Relegating this tribal group so long
deprived of due process of law to what is widely viewed as a troubled
and slow administrative process after such an extraordinary lapse of
time would, simply put, not be fair,
______
[The editorial from the Fayetteville Observer submitted for
the record by Mr. McIntyre is copyrighted and has been retained
in the Committee's official files.)
Mr. McIntyre. Mr. Chairman, over the last six years the
Lumbee Tribe and many of its members have faithfully traveled
to Capitol Hill. We have with us Chairman Goins, and I would
like the Chairman and some of the other tribal leaders who are
here to stand and be recognized. Thank you for
coming today. We have many more who are out in the hall waiting
to come in and join us.
The Lumbees are now attending their sixth hearing in six
years to present their strong and solid case for Federal
recognition by the U.S. Congress, and this does not take into
account the numerous times the Congress has discussed this
issue prior to the last six years.
In fact, the Lumbees have been patient. For a hundred years
they have been coming before Congress with regard to this
issue, and in 1956 the Congress recognized the Lumbees in name,
but did not complete the recognition process.
We know that in the 110th Congress this Committee passed
and the full U.S. House voted in a bipartisan way by exactly a
two-thirds vote, 256 to 128, to say yes to Lumbee Federal
recognition, and then the Senate Indian Affairs Committee also
voted to send this bill to the Floor of the Senate.
Unfortunately, with the national elections that occurred last
fall, the Senate did not take final action on the bill so here
we are again.
Mr. Chairman, no doubt the time has come finally for
recognition. We know that indeed for discrimination to end it
is time for recognition to begin. During the past few hearings,
the Lumbee Tribe has heard concerns raised about whether or not
``they are true Indians,'' and I am sure that issue may well be
raised again today.
That statement is nothing more, Mr. Chairman, than a dagger
in the heart of good, decent and honorable people who
contribute to our society in every way, who have served in our
nation's militaries, who serve as judges back in my home town
of Lumberton, who serve in the state legislature in Raleigh on
behalf of the county that I live in.
In fact, I am a minority in my home county. The Lumbee
Indians are the plurality in terms of population. They have
held positions of leadership on the school board, on the county
commission, in the state legislature and the judicial system.
Our current county clerk, our current county registrar of
deeds, are all Lumbee Indians.
It shows that they have earned the respect and merited the
respect of the general population back home. In fact, I grew up
and went to a tri-racial high school, and Robeson County is the
most ethnically diverse county of all 100 counties in North
Carolina according to the last U.S. Census. The Lumbees have
shown their leadership, their commitment, their willingness to
make a difference in all phases of life.
There have been some comments also about going through the
process and the fairness of the process. Let me just jump to
the heart of that issue. The Lumbees have been examined 11
times by the Bureau of Indian Affairs. They have gone through
the process, so why do we have this bill before Congress? Let
us get to the bottom line.
The Solicitor General has stated back in 1989 that because
Congress took action in 1956 in recognizing the tribe in name,
but never completed the process, Congress has to finish the
process. The Lumbees are the only tribe in America in this
situation. It is a very direct situation. It will not have
implications for other tribes like we have heard comments about
and I am sure we will hear more about today.
There were two other tribes in America in this situation,
and Congress acted on them both and completed the recognition
and gave those tribes recognition. That will be documented in
further testimony by other witnesses today. The only tribe in
America left in limbo, this legal limbo, are the Lumbees, and
it can't just be sent to the BIA because the Solicitor General
has already stated that Congress needs to resolve it.
Our good friends on both sides of the aisle understood
this, and that is why we had such an overwhelming two-thirds
vote from liberals, conservatives, moderates, Republicans,
Democrats. We had votes in fact not only from folks from across
the nation, but even when it went to the Senate we saw strong
bipartisan support as Senators Dole and Byrd supported this
measure when it was before the Senate during the last session.
The Governors that I mentioned earlier represent both
Republican and Democratic Governors from North Carolina as
well, and they understand the plight that the Lumbees have had
over these years.
I have to tell you that as I go home virtually every
weekend, as I spend time with my friends from the Lumbee
community, in my home county where approximately 40,000 of the
55,000 Lumbees reside, I know the injustice they feel in their
hearts and the indignity they know in their minds that our own
Federal government, despite all their contributions, despite
their hard work, despite their commitment, despite their being
here even before the first Englishman arrived on the coast of
North Carolina at Roanoke Island, that our Federal government
still doesn't give them the dignity of being fully recognized.
I know that it is time for Congress to be able to proceed
without further delay. Indeed, we know that justice delayed is
justice denied. For a hundred years this tribe has been denied
that justice, and we know now for over the last 52 years, after
Congress did finally act and recognize the Lumbee Tribe in
name, that justice has continued to be delayed.
It is now indeed time to move forward. It is time indeed
for discrimination to end and recognition to begin.
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, 7th Congressional District
Mr. Chairman and Members of the Committee, thank you for the
opportunity to testify before you today regarding federal recognition
for the Lumbee Indians.
Chairman Rahall, the members of the Lumbee Tribe and I appreciate
your leadership, support, and persistence in the fight for Lumbee
Indian federal recognition. The Lumbee Tribe has no better friend in
this Congress than Nick Joe Rahall, and I know that I speak on behalf
of all the Lumbee members when I say, ``thank you.''
Chairman Rahall, I would like to ask unanimous consent to place
into the record 3 letters from North Carolina's only Governors over the
last 32 years--Jim Hunt, James Martin, and Mike Easley. These letters
show bi-partisan support for federal recognition for the Lumbee Tribe
from our state's highest official.
Mr. Chairman, over the last six years, the Lumbee Tribe and many of
its members have faithfully traveled to Capitol Hill. They are now
attending their sixth hearing in six years to present their strong and
solid case for federal recognition by the U.S. Congress. And this does
not take into account the numerous times the Congress has discussed
this issue prior to this time. The Lumbees have been patient. They have
been respectful. And, yes they have been persistent.
In the 110th Congress, this committee passed and the full U.S.
House voted in a bi-partisan way, 256-128, to say yes to Lumbee federal
recognition. The Senate Indian Affairs Committee also passed the bill
but unfortunately, the full U.S. Senate did not act on this bill. So,
here we start again.
Mr. Chairman, the time has come for positive finality on this
issue. The time has come for passage in the House, passage in the
Senate, and signature by President Obama who has said he supports
Lumbee federal recognition.
Once and for all, the time has come for discrimination to end and
recognition to begin! This is the Lumbee Tribe's time!
During the past few hearings, the Lumbee Tribe has heard concerns
raised about them as to whether they are ``true Indians,'' and I am
certain that it will be raised again here today.
Chairman Rahall, that question is a dagger in the heart of the
good, decent, and honorable people who compose the Lumbee Tribe! It
represents a weak attempt to try and confuse the issue of federal
recognition.
Mr. Chairman, the record and the facts are crystal clear--the
Lumbee Tribe exists as an Indian tribe and has done so over its long
history. The Department of Interior has, on several occasions,
concluded that the Lumbees are a distinct Indian community. The various
names by which the tribe has been known were the result of State law.
In no case, except for the name Lumbee, were the names chosen by the
tribe itself. All the other names were imposed upon the tribe or chosen
for them! Furthermore, the BIA regulations on acknowledgement of Indian
tribes specifically provide that changes in names are not relevant to
Indian identity.
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, 121 (First petition to Congress was in
1888) of the 233 (2009-1776=233) 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.
I was born and reared in Robeson County, North Carolina, the
primary home of the Lumbee people. I go home there virtually every
weekend, and I have the high honor of representing approximately 40,000
of the 55,000 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 former sheriff, the current
clerk of court, the register of deeds, the school superintendent,
several county commissioners and school board members, 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. 31,
legislation that I have introduced to grant the Lumbees federal
recognition. I am pleased to report to the Natural Resources Committee,
that 179 members of the U.S. House from both parties have co-sponsored
Lumbee recognition!
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! And as I said earlier, 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. Thank you, Mike.
Jim?
STATEMENT OF HON. JAMES MORAN, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF VIRGINIA
Mr. Moran. Thanks very much, Mr. Chairman. I don't want to
reiterate what the Governor has already said and said so
articulately, but I very much appreciate you bringing this bill
up again. This has been a long and in many ways a very painful
process, particularly to our friends, the Virginia Indian
tribes.
Chief Stephen Adkins of the Chickahominy Tribe is here.
Other relatives and friends are here. You will hear from Helen
Rountree, an esteemed historian.
This is a difficult thing for this country to come to grips
with. To respond to my good friend, the Ranking Member, Mr.
Hastings, there are two unique circumstances surrounding the
Virginia Indian tribes, and to the extent that history is one
sequence of ironies after another this takes the cake because
these were the Indians that enabled the first English
settlement in 1607 to survive. They taught them how to survive.
In 1677, they signed a treaty with King Charles II of
England, so they were never officially at war with the settlers
and in fact never had any leverage to acquire sovereignty for
their tribe, even though the treaty that they signed is the
longest celebrated treaty in the history of the United States.
It is celebrated every single year and celebrated by Virginia,
and yet they are not recognized.
The principal reason is the second unique circumstance to
Virginia's Indian tribes, and it goes back to the beginning of
the 20th century. In 1924, there was a law passed in Virginia
called the Racial Integrity Act. A guy by the name of Dr.
Walter Plecker, who was an avowed white supremacist, took it
upon himself to lead the effort to implement this Racial
Integrity Act.
And so he went to the state and local courthouses and
expunged the records, reclassifying in Orwellian fashion every
document, particularly birth certificates, of Native Americans
to make sure that all nonwhites were recorded as the official
term was colored.
In fact, if you were an Indian woman who gave birth in a
hospital, you could not take your child out of the hospital
until you checked a form identifying yourself as colored. They
were given two lines. One white. One colored. You had to check
that.
Now, it was targeted at Native Americans in the
Commonwealth of Virginia to ensure that they lost their
identity. To call yourself a Native American put you at risk of
one year in jail. That is how severe the law was.
If you wanted to be married, you had to travel out of the
state. Also, even to enlist in the military and to be
identified as a Native American you had to travel out of the
state.
Finally it was struck down, this law, in 1967, but between
1924 and 1967 virtually all of the public and most of the
private records that confirmed the existence of Native
Americans in Virginia were destroyed. That is why they can't go
to the Bureau of Indian Affairs and get their recognition. This
is a unique situation.
They were told maybe it might be possible sometime if you
go through the traditional process, but it will not be in your
lifetime--Chief Adkins can tell you that; they were told that--
because there isn't the paper documentation. Some historians
have called this a paper genocide. They wiped out all evidence
of Native Americans.
I won't go further into the reasons why the ruling elite in
Virginia wanted so desperately to do that and all. It goes back
to Pocahontas' descendants and so on. But there is no doubt
these tribes exist, have existed.
Now let me just give some insight into the issue about
gambling. The only people who would allow them to receive any
manner of education were the Christian missionaries and so they
happened to be very strong, religious people, and they don't
believe in gambling. You know, there are a number of clubs down
the street from where they live that have bingo night and so
on. They don't have any. They are allowed to do that. They
won't do it. So again the irony of making this a restriction.
And in this law the MGM, the Harrahs, all of these
billionaires, Sheldon Adelson, billionaires that have made
money from gambling, they can make all the money they want, but
the Virginia Indian tribes can't make a dime from gambling,
even if the Virginia law is changed. That is how restrictive
this legislation is.
But it is about their dignity, being recognized for who
they are. That is what this legislation is all about. You know,
this will bring closure to something that has just been an
absolute travesty. That I am aware of, I don't have one Native
American who is a constituent, but the problem is, and I think
all of you, and Mr. Faleomavaega voiced it particularly. When
you realize the history, the travesty of justice that has
occurred here, you feel almost a personal responsibility to
rectify it.
That is what this bill will do. I thank you for considering
it, and I trust this year it will finally be passed. Thank you,
Mr. Chairman.
[The prepared statement of Mr. Moran follows:]
Statement of The Honorable James P. Moran, a Representative in Congress
from the State of Virginia
Mr. Chairman, thank you and thank you Members of the Natural
Resources Committee who have been particularly sensitive during your
service here in Congress to the needs of Native Americans and
Virginia's Indian people.
The Virginia Indians who are here with me in this hearing room and
their friends and relatives who could not make today's trip to the
Capitol are not myths or legends. They are the blood descendants of a
proud people who populated the Mid-Atlantic and were part of the
Powhatan Confederacy. They were the first to greet the English in 1607
and ensure their survival for the first few years of their settlement
at Jamestown. And, they have continued to exist as a people and as
tribes ever since.
Two years ago, this nation celebrated the 400th anniversary of the
settlement of Jamestown. But while the anniversary brought greater
notoriety to the Virginia Indians, it was not a celebration for the
descendents of Pocahontas, for they have yet to be recognized by our
federal government. Unlike most Native American tribes that were
officially recognized when they signed peace treaties with the federal
government, Virginia's six Native American tribes made their peace with
the Kings of England. Most notable among these was the Treaty of 1677
between these tribes and King Charles II. This treaty has been
recognized by the Commonwealth of Virginia every year at Thanksgiving
when the Governor accepts tribute from the tribes in a ceremony now
celebrated at the State Capitol. Last November, I had the honor of
attending the 331st ceremony affirming that treaty. I understand the
event marks the longest celebrated treaty in the United States.
The history of Virginia tribes is unique in two important ways that
are relevant to why they are here today. The first explains why the
Virginia tribes were never recognized by the federal government; the
second explains why congressional action is needed. First, by the time
the federal government was established in 1789, the Virginia tribes
were in no position to seek recognition. They had already lost control
of their land, withdrawn into isolated communities, and the state had
stripped them of most of their rights. Lacking even the rights granted
by the English Kings, much less our own Bill of Rights, the tribes
found that federal recognition was nowhere within their reach.
The second unique circumstance for the Virginia tribes is what they
experienced at the hands of the state government during the first half
of the 20th Century. It has been called a Apaper genocide.@ At a time
when the federal government granted Native Americans the right to vote,
Virginia's elected officials adopted racially hostile laws targeted at
those classes of people who did not fit into the dominant white
society. The fact that some of Virginia's ruling elite claimed to be
blood descendants of Pocahontas in their view meant that no one else in
Virginia could make a claim they were Native American and a descendent
of Pocahontas' people. To do so would mean that Virginia's ruling elite
were what they decreed all non-whites to be: part of ``the inferior
Negroid race.''
With great hypocrisy, Virginia's ruling elite pushed policies that
culminated with the enactment of the Racial Integrity Act of 1924. This
act directed state officials to destroy or alter all public records
that might affirm the existence of Native Americans. One state
official, Walter Plecker, an avowed white supremacist, spent his career
as Director of the State Office of Vital Records sacking state and
local courthouse records and reclassifying in Orwellian fashion other
documents to make sure all non-whites were recorded as ``colored.''
The law targeted Native Americans with a vengeance, denying Native
Americans in Virginia their identity. To call oneself a ANative
American@ in Virginia was to risk a jail sentence of up to one year. In
defiance of the law, members of Virginia's tribes traveled out of state
to obtain marriage licenses or to serve their country in wartime. The
law remained in effect until it was struck down in federal court in
1967. In the period between 1924 and 1967, state officials waged a war
to destroy all public and many private records that confirmed the
existence of Native Americans in Virginia. Historians have affirmed
that no other states' efforts compare to Virginia's efforts to
eradicate its citizens' Indian identity.
All of Virginia's state-recognized tribes have filed petitions with
the Bureau of Acknowledgment seeking federal recognition. But it is a
very heavy burden the Virginia tribes will have to overcome, and one
fraught with complications that officials from the bureau have
acknowledged may never be resolved in their lifetime. The
acknowledgment process is already expensive, subject to unreasonable
delays, and lacking in dignity. Virginia's ``paper genocide'' further
complicates these tribes' quest for federal recognition, making it
difficult to furnish corroborating state and official documents and
aggravating the injustice already visited upon them.
It wasn't until 1997, when then Governor George Allen signed
legislation directing state agencies to correct state records, that the
tribes were given the opportunity to correct official state documents
that had deliberately been altered to list them as Acolored.@ The law
allows living members of the tribes to correct their records, but the
law cannot correct the damage done to past generations or to recover
documents that were purposely destroyed during the ``Plecker Era.''
In 1999, the Virginia General Assembly adopted a resolution calling
upon Congress to enact legislation recognizing the Virginia tribes. I
am pleased to have honored that request, and beginning in 2000 and in
subsequent sessions, Virginia's Senators and I have introduced
legislation to recognize the Virginia tribes.
There is no doubt that the Chickahominy, the Eastern Chickahominy,
the Monacan, the Nansemond, the Rappahannock, and the Upper Mattaponi
tribes exist. These tribes have existed on a continuous basis since
before the first European settlers stepped foot in America. They are
here with us today.
I know there is resistance in Congress to granting any Native
American tribe federal recognition. And I can appreciate how the issue
of gambling and its economic and moral dimensions has influenced many
Members' perspectives on tribal recognition issues. The six Virginia
tribes are not seeking federal legislation so that they can build
casinos. They find this assertion offensive to their moral beliefs.
They are seeking federal recognition, because it is an urgent matter of
justice, and because elder members of their tribes, who were denied a
public education and the economic opportunities available to most
Americans, are suffering and should be entitled to the federal health
and housing assistance available to federally recognized tribes.
To underscore this point, the legislation I introduced includes
language approved last session by the House of Representatives that
would prevent the tribes from engaging in gaming on their federal land,
even if everyone else in Virginia were allowed to engage in Class III
casino-type gaming.
In the name of decency, fairness, and humanity, the Virginia tribes
deserve federal recognition. It is long overdue and would bring closure
to the centuries of injustice Virginia's Indians have endured.
Again, I appreciate your leadership and responsiveness in
scheduling this hearing, and I would be pleased to respond to any
questions.
Thank you.
______
Cosponsors of legislation introduced by Rep. Jim Moran
recognizing six Virginia tribes
The Honorable Nick J. Rahall II
The Honorable Robert Wittman
The Honorable Gerald A. Connolly
The Honorable Raul Grijalva
The Honorable Tom Periello
The Honorable Bobby Scott
The Honorable Neil Abercrombie
______
The Chairman. Thank you, Jim.
Heath?
STATEMENT OF HON. HEATH SHULER, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NORTH CAROLINA
Mr. Shuler. Thank you, Mr. Chairman. I want to thank
Chairman Rahall and Ranking Member Hastings for holding this
hearing today and for all the good work they have done on
behalf of Native Americans.
In 1978, the Department of the Interior recognized the need
to end the inconsistency process of Native recognition and
adopt uniform guidelines for Federal recognition. The Lumbee
Recognition Act would bypass this process. I cannot support
this legislation.
I believe the Federal government's process allows for the
evaluation necessary to make an informed and accurate decision.
This process requires that any petition group meet seven
mandatory criteria in order to become Federally recognized. The
process is a thorough one, managed and overseen by qualified
experts in the field of genealogy, anthropology and Native
American history.
Members of the Congress should not arbitrarily rule on the
identity of a people without establishing the facts. The best
way to establish those facts is to let the system work and let
the experts do their job. The fair way to address the situation
is to allow the Lumbee to complete the administrative process
at the Office of Federal Acknowledgement in the Department of
the Interior. This process protects not only the integrity of
the United States, but also the political and cultural
integrity of established Indian tribes.
To preserve the integrity of Native American recognition, I
have introduced H.R. 839, which would allow the Lumbee to
undergo the process through the Department of the Interior.
I also ask unanimous consent to insert a statement from
Chief Michell Hicks of the Eastern Band of Cherokee Indians,
who strongly oppose H.R. 31, into the record.
The Chairman. Without objection. Request granted.
[The statement from Chief Michell Hicks of the Eastern Band
of Cherokee Indians follows:]
Statement of Principal Chief Michell Hicks,
The Eastern Band of Cherokee Indians, on H.R. 31
Chairman Rahall, Ranking Member Hastings, members of the House
Natural Resources Committee, I appreciate the opportunity to provide
this written testimony to this Committee on behalf of the Eastern Band
of Cherokee Indians.
The Eastern Band strongly believes that Congress should not enact
H.R. 31. As I have testified on behalf of the Eastern Band a number of
times before this Committee and the Senate Indian Affairs Committee,
this bill has factual and policy flaws that fundamentally make the bill
unfair to the United States and existing federally-acknowledged Indian
tribes.
First, there are serious problems with the tribal and individual
identity of the Lumbee. Credible experts in the area of genealogy, who
are not affiliated with the Eastern Band, have reached difficult
conclusions concerning Lumbee identity that this Committee should not
ignore. Paul Heinegg, whose work has been recognized by The American
Society of Genealogists, concludes that the Lumbee are ``an invented
North Carolina Indian tribe,'' 1 and that many of the
persons who first self-identified as Indian in Robeson County, North
Carolina, are not of Indian ancestry.
---------------------------------------------------------------------------
\1\ ``The Lumbees' Long and Winding Road,'' Roll Call 13 (July 17,
2006) (published following the Senate Indian Affairs Committee hearing
on the Lumbee Recognition Act in 2006).
---------------------------------------------------------------------------
Another indisputable expert in this area is Dr. Virginia DeMarce,
who formerly served as Chair of the National Genealogical Association
and as an expert in this area at the Department of the Interior. Dr.
DeMarce concludes from her genealogical studies that many Lumbee
families do not originate from the Robeson, North Carolina, area, but
migrated there from other places.
As you know, in past testimony before the Congress, Department of
Interior officials also have raised serious concerns about Lumbee
individual and tribal identity as well.
This uncertain background may somewhat explain why the Lumbee have
sought federal recognition as descending from four different tribes
over the years: Cherokee, Siouan, Croatan, and now Cheraw.
This leads to my second point. The cultural and political 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 when Congress acts arbitrarily in federal acknowledgement
matters, allowing politics and emotion to drive decision making, rather
than facts about tribal identity. Eastern Cherokee leaders have raised
these identity concerns about the Lumbee since at least 1910, when the
Lumbees first claimed a Cherokee identity.
Third, the Department of the Interior's Office of Federal
Acknowledgement (OFA), while imperfect, is the only federal entity
equipped to make an informed, merits-based determination of Lumbee
tribal identity and recognition. Congress, while it certainly has the
power to recognize tribal groups, is not as well equipped to evaluate
and make these decisions as the Department of Interior.
And finally, Congress should be absolutely certain that the Lumbees
meet the objective criteria at Interior before it enacts a bill that
could cost the taxpayers more than $800 million over five years,
undermine the integrity of existing federally-recognized tribes, and
further decrease the funds existing tribes and Indians receive. But due
to the problems with Lumbee identity, Congress cannot be confident in
the merits of this bill.
A fair approach would be for Congress to clear the way for the
Lumbees to get a fair shot at federal acknowledgement through the
Department of the Interior's Office of Federal Acknowledgement.
Congressman Heath Shuler (D-NC) has introduced H.R. 839 that would all
Indian groups that fall under the 1956 Lumbee Act to complete the
administrative process. This is the fair way to address this issue.
Serious Problems with Claimed Lumbee Identity
``An Invented North Carolina Indian Tribe'': Credible Experts Raise
Serious Problems With Lumbee Identity
Dr. Virginia DeMarce, the former Chair of the National Genealogical
Society, and Paul Heinegg, an award-winning genealogist and author,
have published research on Lumbee family genealogies and reached
conclusions that contradict the fundamental bases for the Lumbee
Recognition Act. Heinegg summarizes his conclusions concerning Lumbee
identity, referring to the Lumbee as ``an invented North Carolina
Indian tribe.'' 2
---------------------------------------------------------------------------
\2\ ``The Lumbees' Long and Winding Road,'' Roll Call 13 (July 17,
2006) (published following the Senate Indian Affairs Committee hearing
on the Lumbee Recognition Act in 2006).
---------------------------------------------------------------------------
Dr. DeMarce's research demonstrates that many Lumbee families
migrated into the Robeson County, North Carolina, area from other
places prior to 1800. 3 These include the Brayboy, Chavis
(Chavers), Cumbo, Gowen, Locklear, Kersey, and Sweat families. Heinegg
concurs and adds the Lumbee families of Carter, Hammond, Jacobs, James,
Johnston, Lowry, Manuel, and Roberts to this list. 4 Dr.
DeMarce also states that genealogical evidence does not bear out that
these families significantly married into Indian families upon arrival
into the Robeson County area in the 1800s. 5 In fact, there
is evidence that non-Indians in the area did not consider these Lumbee
families to be Indians in the 1840s. 6 Beyond those families
listed earlier, Dr. DeMarce also states that other notable genealogists
frequently refer to other self-identified Lumbee families as residing
in other areas prior to any settlement in the Robeson County area.
7
---------------------------------------------------------------------------
\3\ Virginia DeMarce, ``Looking at Legends''Lumbee and Melungeon:
Applied Genealogy and the Origins of Tri-Racial Isolate Settlements,''
National Genealogical Society Quarterly 81 (March 1993): 27-31.
\4\ Paul Heinegg, Free African Americans of North Carolina and
Virginia (Baltimore, MD: Clearfield, 1997, 3rd Ed.): 23.
\5\ DeMarce, Legends at 37.
\6\ DeMarce, Legends at 27. These genealogical findings are
supported by Historian John Hope Franklin quoting a petition from the
North Carolina Legislative Papers for 1840-41 that showed Robeson
County inhabitants during the first half of the nineteenth century did
not agree with the theory that the Lumbees were Indians but were
migrants from Virginia. Id.
\7\ DeMarce, Legends at 30.
---------------------------------------------------------------------------
More broadly, Heinegg states that the Lumbees from Robeson County
were not Indians but ``African American as shown by their
genealogies.'' 8
---------------------------------------------------------------------------
\8\ Heinegg at 22.
---------------------------------------------------------------------------
DeMarce states that Lumbee families had good reason to identify
themselves as Indian at the time. The ``legal, social, educational, and
economic disadvantages of being African-American were so great that it
was preferable for a person to be considered almost anything else.''
9 Heinegg adds that until about 1835, ``free African
Americans in Robeson County attended white schools and churches, voted,
and [congregated] with whites. However, the relations between the
whites and free African American communities deteriorated rapidly after
1835, and by the end of the Civil War they were strained to the
breaking point.'' 10 The Lumbee claims of Indian ancestry
allowed Lumbee children to go to different schools from the children of
newly freed slaves. 11 According to DeMarce, not until after
the Civil War did most communities of African Americans advance a claim
of also being of Indian ancestry. 12
---------------------------------------------------------------------------
\9\ Virginia DeMarce, ```Verry Slitly Mixt': Tri-Racial Isolate
Families of the Upper South--A Genealogical Study,'' National
Genealogical Society Quarterly 81 (March 1992): 6.
\10\ Heinegg at 25.
\11\ Heinegg at 25. According to the 1956 Lumbee Act, the Lumbees
themselves were persons ``owning slaves.''
\12\ DeMarce, Tri-Racial Isolates at 7.
---------------------------------------------------------------------------
In 1900, over 120 Lumbee families, including the ones above, self-
identified as ``Indian'' in the federal census. Dr. Campisi relies on
federal census records as the ``best source of evidence concerning the
Lumbee community.'' 13
---------------------------------------------------------------------------
\13\ 109th Congress, Campisi testimony at 38.
---------------------------------------------------------------------------
The Lumbee Have Self-Identified As Four Different Tribes
This uncertain genealogical background illuminates the remarkable
story of Lumbee efforts to attain federal acknowledgement as four
different Indian tribes, including the ``Cherokee Indians of Robeson
and Adjoining Counties.''
The Lumbee group seeking Congress's acknowledgment today has been
before the Congress on numerous occasions in the past, beginning in
1899. 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.
Lumbee's Self-Identification as ``Croatan'' Indians
The Lumbee sought federal services from the Congress as ``Croatan''
Indians in the 1880's and early 1900's. 14 In 1993, this
Committee's House Report contained the following relating to the
history of the Lumbee group, including its ``Croatan'' origins:
---------------------------------------------------------------------------
\14\ ``Testimony of Dr. Jack Campisi, in Support of S. 420, United
States Senate Committee on Indian Affairs'' (September 17, 2003) p. 6.
---------------------------------------------------------------------------
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. 15
---------------------------------------------------------------------------
\15\ H.R. Rep. No. 103-290, 103rd Cong., 1st Sess. at 179 (1993).
---------------------------------------------------------------------------
Genealogist Paul Heinegg refers to this theory of Lumbee tribal
background as well as the one posited today by the Lumbee as
``fantastic theories on [Lumbee] origin....'' 16
---------------------------------------------------------------------------
\16\ Heinegg at 17.
---------------------------------------------------------------------------
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.
After World War I, the Lumbees sought federal 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.
In 1932, the Lumbees sought legislation that was introduced in the
Senate that would have recognized them as ``the Cherokee Indians,'' but
this effort failed also. 17
---------------------------------------------------------------------------
\17\ Id.
---------------------------------------------------------------------------
In 1933, another Lumbee acknowledgement bill failed because the
Lumbees themselves did not agree on whether the tribal affiliation
should be changed from ``Cherokee Indians'' to ``Cheraw Indians.''
18
---------------------------------------------------------------------------
\18\ Campisi testimony, 109th Congress at 40.
---------------------------------------------------------------------------
Lumbee's Self-Identification as ``Siouan'' Indians
According to the Lumbee, they sought federal recognition as
``Siouan'' Indians in 1924. In the 1930's, for purposes of the Indian
Reorganization Act, the Lumbees self-designated themselves as the
``Siouan Indian Community of Lumber River.'' 19 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.
---------------------------------------------------------------------------
\19\ 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. 20
---------------------------------------------------------------------------
\20\ Id. at 9-10. Contrary to Lumbee claims that the 1956 Lumbee
Act both acknowledged the Lumbee as a tribe and terminated that tribal
status in the same law, the Act itself states that the Lumbee are
individuals only ``claiming joint descent from remnants of early
American colonists and certain tribes of Indians originally inhabiting
the coastal regions of North Carolina....'' The legislative history of
the Act also makes clear that it only commemorates a name change. 102
Cong. Rec. 2900 (1956).
---------------------------------------------------------------------------
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.'' 21
The regulations define ``historical'' in this context as ``dating from
first sustained contact with non-Indians.'' 22 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.
---------------------------------------------------------------------------
\21\ 25 C.F.R. Sec. 83.7(e).
\22\ Id. at 83.1.
---------------------------------------------------------------------------
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.'' 23
---------------------------------------------------------------------------
\23\ 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.
24
---------------------------------------------------------------------------
\24\ 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.''
25 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.''
---------------------------------------------------------------------------
\25\ 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.
Arlinda Locklear, Counsel to the Lumbee, in her 2003 testimony
before the Senate Indian Affairs Committee admitted 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.'' 26
---------------------------------------------------------------------------
\26\ ``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.
---------------------------------------------------------------------------
On July 12, 2006, an Interior official testifying before the Senate
Indian Affairs Committee restated the problem the Lumbee have had in
identifying their historic tribe.
``[T]he uniqueness is the lack of pinning down of the
historical tribe.,,There is a considerable period of time where
evidence would be needed to fully understand who this group was
and is...[because] there have been approximately 26 bills
introduced since 1899...[that ] have provided possible
historical tribes and there are quite a number of them...One
report indicated...the Cherokee, another...the Cheraw,
another...the Croatan. One report included a whole group of
different historical tribes, such as the Eno, the Hatteras, the
Keowee, the Shakori. Even John R. Swanton, who is a renowned
anthropologist, in a 1946 report for the Bureau of Ethnology,
stated that there were several possibilities that the Lumbee
could descend from either the Cheraw, the Siouan Indians of
Lumber River, the Keowee, and another group known as the
Washaw. There is a whole number of possibilities.''
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
acknowledgement criteria. The Lumbees claim over 62,000 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.''
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 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?
27
---------------------------------------------------------------------------
\27\ H.R. Rep. No. 103-290, 103rd Cong., 1st Sess. at 186-87
(1993).
---------------------------------------------------------------------------
Furthermore, in his 2006 Senate testimony, the BIA director
identified ``over 80 names of groups that derive from these
counties,,.[including] the Cherokee Indians of Robeson and Adjoining
Counties, the Lumbee Regional Development Association, the Cherokee
Indians of Hoke Count, Inc., the Tuscarora Nation of North Carolina,
The Tuscarora Nation of Indians of the Carolinas...[in which] there is
an overlapping of membership, there is an overlapping of some of the
governing bodies and there is an overlap of the ancestry of these
groups with the Lumbee.'' 28
---------------------------------------------------------------------------
\28\ S. Hrg. 109-610, Lumbee Recognition Act, July 12, 2006, page
16.
---------------------------------------------------------------------------
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.
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
62,000 members to a historic tribe.
Interior's Office of Federal Acknowledgement Is the Proper Forum for
Deciding Whether the Lumbee Should be Federally Recognized
The Department of the Interior through the Office of Federal
Acknowledgement (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 not able
to make. To allow the Lumbees to circumvent that process would also
undermine the federal recognition process, as it has evolved at the
Department of Interior, and would be patently unfair to the hundreds of
applicants that have gone through or are going through the process
developed by the Department. Congressional approval of this legislation
will short circuit the process and allow the Lumbee to avoid the proven
regulatory process, which we believe the Lumbees seek to do because
they have significant historic, cultural and genealogical gaps for
which they can provide no proof of their existence as a sovereign
entity, in favor of old-fashioned politics.
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. 29
---------------------------------------------------------------------------
\29\ 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.
30
---------------------------------------------------------------------------
\30\ 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 substantially similar legislation came up in the past, 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. 31
---------------------------------------------------------------------------
\31\ Id. at 206.
---------------------------------------------------------------------------
Congress Should Not Obligate Enormous Spending Where the Identity of
the Tribe is Uncertain at Best
The impact on appropriations to other Indian tribes would be
unprecedented in the history of federal acknowledgment. On May 15,
2008, the Congressional Budget Office determined that, based on an
estimate of 54,000 Lumbees, that the cost of this legislation would be
$768 million over five years. Yet the Lumbees claim over 64,000 service
population. The real cost of this bill would be much higher than this
estimate.
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
utilized by the Office of Federal Acknowledgement for evaluating
petitions for federal acknowledgement.
CONCLUSION
If this Committee and the Congress choose 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 acknowledgement 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.
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.
If you determine that legislation is necessary to address this
situation, we urge you to require the Lumbee provide evidence to
Congress which shows that it meets the equitable and standardized
requirements established in the administrative process.
______
Mr. Shuler. Thank you, Mr. Chairman, for allowing us to
have this hearing today. I would certainly like to say I
certainly miss the Committee work and being on this Committee.
Thank you, sir.
[The prepared statement of Mr. Shuler follows:]
Statement of The Honorable Heath Shuler, a Representative in
Congress from the State of North Carolina
I want to thank Chairman Rahall and Ranking Member Hastings for
holding this hearing today and for all the good work they have done on
behalf of Native Americans.
Mr. Chairman, every time a legislative body has tried to resolve
the Lumbee issue, they have made the situation worse.
In 1978, the United States Department of Interior recognized the
need to end the inconsistent process of native recognition, and adopted
a uniform guideline for federal acknowledgement.
H.R. 31, the ``Lumbee Recognition Act,'' would circumvent that
process. I cannot support such legislation.
I believe the federal acknowledgment process allows for the uniform
and rigorous evaluation necessary to make an informed and accurate
decision.
This process requires that any petitioning group meet seven
mandatory criteria in order to become federally recognized.
The process is a thorough one, managed and overseen by qualified
experts in the fields of genealogy, anthropology, and Native American
history.
I strongly oppose any attempts to circumvent this established
process by any group, including Lumbee. Members of Congress should not
arbitrarily rule on the identity of a people without establishing the
facts.
And the best way to establish those facts is to let the system
work, and let the experts do their job.
The fair way to address this situation is to allow the Lumbee to
complete the administrative process at the Office of Federal
Acknowledgement in the Department of the Interior.
This process protects not only the interests of the United States
but also the political and cultural integrity of established Indian
tribes.
______
The Chairman. We miss having you on the Committee, Heath.
Patrick McHenry?
STATEMENT OF HON. PATRICK McHENRY, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NORTH CAROLINA
Mr. McHenry. Thank you, Mr. Chairman and Ranking Member
Hastings. I appreciate the opportunity to testify today about
this important legislation that affects North Carolina and our
folks at home.
Mr. Chairman, Native Americans across this country are
looking to Congress to help on a number of high priority
issues, and I know the Committee is concerned about this,
including Indian health care reform, fixing the U.S. Supreme
Court's decision regarding land trust issues and tribal
sovereignty protection from the Employee Free Choice Act.
Unfortunately, we are discussing the Lumbee Recognition Act
today. It is a highly controversial piece of legislation in
North Carolina and many parts of Indian Country as well. My
position on this bill is very straightforward. All groups
seeking Federal acknowledgement as Indian tribes should go
through the administrative process of the Department of the
Interior.
In this case, the Department has stated that the 1956
Lumbee Act prevents the Lumbee from going through the process,
so Congress should lift that restriction. That is why I have
co-sponsored and supported Congressman Heath Shuler's
legislation. It removes the barrier set forth in the 1956
Lumbee Act and provides the Lumbee with the same opportunities
to attain Federal recognition as other tribes have.
To the extent the process needs to be reformed, we should
let Congress or the agency focus on the process instead of
individual recognition bills. I cannot support this legislation
which would allow the Lumbee to circumvent the established
process we have while other groups are still diligently working
through the recognition process at the Office of Federal
Acknowledgement. I think it would be unfair to those groups to
go around and circumvent this process.
Also, it is unfair to existing Federally recognized tribes,
such as the Eastern Band of Cherokee, who do not want to see
its cultural identity undermined by legislation such as this
today. Federal recognition matters get caught up in emotion
and--well, let us be honest--politics. We should take the
politics out of the Federal recognition process and allow the
Office of Federal Acknowledgement to do its job.
I appreciate the Committee's indulgence in allowing me to
testify today. Thank you, Mr. Chairman. Thank you, Ranking
Member Hastings. I look forward to your questions.
[The prepared statement of Mr. McHenry follows:]
Statement of The Honorable Patrick McHenry,
Tenth District of North Carolina, on H.R. 31
Mr. Chairman, Indian tribes across the country are looking to the
U.S. Congress for help on a number of high priority issues: Indian
health care reform, fixing the U.S. Supreme Court's decision regarding
land trust issues, and tribal sovereignty protection in the Employee
Free Choice Act.
But this Committee's first action of the new Congress is to
consider the ``Lumbee Recognition Act,'' a bill that is highly
controversial not only in Indian country but also in Congress.
My position on this bill is very straightforward. All groups
seeking federal acknowledgement as Indian tribes should go through the
administrative process at the Department of the Interior. In this case,
the Department has stated the 1956 Lumbee Act prevents the Lumbee from
going through the process, so Congress should act to lift that
restriction. This is why I support Congressman Shuler's legislation; it
removes the barriers set forth in the 1956 Lumbee Act and provides the
Lumbee with the same opportunity to attain federal recognition as other
tribes have.
To the extent that the process needs to be reformed, we should let
Congress or the agency focus on the process, instead of individual
recognition bills.
I cannot support this legislation, which would allow the Lumbee to
circumvent the process, while other groups diligently work toward the
goal of recognition through the Office of Federal Acknowledgement. This
would be unfair to those groups.
Also, it is unfair to existing federally recognized tribes, such as
the Eastern Band of Cherokee Indians, who do not want to see its
cultural identity undermined by legislation such as this.
Federal recognition matters get caught up in emotion and, let's
face it, politics. We should take the politics out of federal
recognition and allow the Office of Federal Acknowledgement to do its
job.
Thank you.
______
The Chairman. Thank you, Patrick.
Another former Member of our Committee, the gentleman from
North Carolina, Walter Jones. Welcome.
STATEMENT OF HON. WALTER B. JONES, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NORTH CAROLINA
Mr. Jones. Mr. Chairman, thank you. It is really nice to
come back to the Committee. I am sorry I couldn't continue to
serve on it. You were always an outstanding Member certainly,
Mr. Hastings and many other people who are still here, Mr.
Kildee and my friend from Guam. We just thank each and every
one for the opportunity today.
I am going to be very brief because Mr. Shuler and Mr.
McHenry have taken many of the words that I would use, but I
will say this. My respect for this Committee will continue
until the day I leave Congress and after that time.
I think what you are being asked to do by passing this
legislation, and I don't have a better friend--he is my brother
in Christ--than Mike McIntyre. I know he is doing this for the
right reasons, and he believes that. I will always respect him
for that. But as Mr. Shuler said and Mr. McHenry said, we are
bypassing the process. The process, good or bad, maybe the
process needs to be changed, but I don't think it needs to be
changed with this legislation.
Mr. Shuler said and Mr. McHenry said this will circumvent
the process. It is my understanding and the reason I joined Mr.
Shuler in H.R. 839 was that this would give an advantage to the
Lumbees if they deserve that advantage to move them in front of
the list, to give them a chance to go ahead and have their case
heard.
As Mr. McHenry has said, there are many questions, right or
wrong, about the historical history of the Lumbees. In fact,
when Mr. McIntyre said a hundred years ago they weren't known
as Lumbees at that time, so I think there are some legitimate
questions that all of us as American citizens, we want our
people who have fallen, as Mike said, for this country to be
recognized, the people who are working, whether they be Lumbees
or not, but this process is too important to scrap.
If you let one bill come through the House and the Senate
then you know better than I, Mr. Chairman and Ranking Member.
You know what is coming next. You are going to have a whole
trainload of groups out here in this country that are going to
ask for the same consideration and the same recognition, and I
do not believe sincerely that that is what this Congress should
be about.
Particularly, the Indians of this country have been never
given the proper respect for what they did for this country. We
have a process to give them that respect. If Mr. Shuler's bill
will help move some of the groups like the Lumbees who for
years have been feeling like they have not gotten that
recognition, to move it forward then I think maybe I would hope
the Committee would look at both bills before you would just
pass H.R. 31 and move it through the process without having the
proper review by the Bureau of Indian Affairs.
So with that, Mr. Chairman, I know the Committee will do
what it thinks right, and I will agree with that whatever the
Committee decides, but please be careful on this issue. It
really does need careful, careful study and consideration. And
look seriously at Mr. Shuler's bill, if the Committee would do
so.
I yield back the balance of my time.
[The prepared statement of Mr. Jones follows:]
Statement of The Honorable Walter Jones, a Representative in Congress
from the State of North Carolina
Chairman/Ranking Member, thank you for the opportunity to testify
today. As a former member of this Committee, I have long been
interested in the issue of federal acknowledgment, and I believe this
is an important matter for the Committee's consideration.
I do not believe, however, that Congress should disregard the
federal acknowledgment process at the Department of the Interior. We
may not like its results or its inefficiencies, but it is still
necessary to help answer the difficult questions about the merits of
federal acknowledgment. Yes, Congress has acknowledged tribes in the
past. But since 1978, the federal government has had a process in place
to answer these difficult questions.
To this end, I have cosponsored a bill (H.R. 839) with my fellow
North Carolinian Heath Shuler that would address this issue as it
relates to Indian groups whose access to the process has been limited
by the 1956 Lumbee Act. I believe Congress should lift that restriction
and let all those groups complete the process, even on an expedited
basis. Under the Shuler bill, the Lumbee are one of the groups that
would be free to access the process once again.
Furthermore, I would argue that Congress is not well equipped to
deal with the complex questions inherent in federal recognition. It's
not like other situations in the past where there is absolutely no
doubt about the identity of the tribe because of treaty relations with
the United States. In this case, the Lumbees have never had such a
relationship.
Mr. Chairman, to the extent that the recognition process needs to
be reformed, then let us focus on reforming that process. But let us
not let politics reign and throw merit out the window by pursuing
individual recognition bills.
Thank you.
______
The Chairman. The Chair wishes to thank our colleagues for
being with us this morning.
Let me say first to the opponents of this legislation, and
it is no secret. I am on record numerous times as stating the
process of recognition is broken. There is a need to examine it
very closely, and in this regard the Chair will work with those
that have introduced legislation such as Mr. Shuler, and
certainly Mr. Faleomavaega on our Committee is deeply involved
in this whole recognition process, as is Mr. Kildee.
We will continue to examine this process. It is hopeful we
can fix it. I hope that this Committee under this Chairman will
have it fixed for this whole process, but we know that it has
been circumvented, if you will, or that there has been such
recognition bills that have occurred in the past. I had the
whole list here, but I am not going to enumerate those
recognitions that have been granted by the Congress, at the
same time recognizing that the process is broken.
So I just have one quick question for Heath, and I am sure
you have been asked this before and it is no surprise to you,
but the Eastern Band of Cherokee Indians in your district. Let
me ask you. How were they recognized? Through what process?
Mr. Shuler. I don't recall how they were recognized. It was
obviously well before my time.
The Chairman. Well, perhaps the Chair can help you. By
Congress through legislation in 1868.
Mr. Shuler. You know, I do look at it like this. I mean,
where does the Trail of Tears begin? I mean, it begins there,
not on the eastern part of North Carolina.
The Chairman. The gentleman from Washington, Mr. Hastings?
[No response.]
The Chairman. The gentleman from Michigan, Mr. Kildee?
STATEMENT OF HON. DALE E. KILDEE, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF MICHIGAN
Mr. Kildee. I apologize for being late since these bills
are of great interest to me, but I will submit a statement and
make remarks just at this point.
I passionately support the recognition of the sovereignty
of the Lumbee Tribe and the Virginia tribes. I think this is a
question of justice. I do it out of a sense of justice. I have
studied this now for 33 years, and this Congress has been
studying this for 33 years.
We are told leave this to the bureaucrats. They are the
experts on this. Well, I carry this with me wherever I go. It
says here the Congress shall have power to regulate commerce
with foreign nations and among the several states and with the
Indian tribes. Congress, not faceless bureaucrats. Congress
shall have the power.
Let me tell you. When this Constitution was written one
could see openly the culture and the history of both these
tribes, the Lumbee and the Virginia tribes, and I suggest that
we follow the Constitution, which gives Congress the power, and
not ever defer our power to bureaucrats. I yield back the
balance of my time.
[The prepared statement of Mr. Kildee follows:]
Statement of The Honorable Dale E. Kildee, a Representative in Congress
from the State of Michigan, on H.R. 31 and H.R. 1385
Mr. Chairman, thank you for holding this hearing today on H.R. 31,
the Lumbee Recognition Act and H.R. 1385, the Thomasina C. Jordan
Indian Tribes of Virginia Federal Recognition Act of 2009.
In my forty-five years of involvement in Indian affairs, I have
observed that few issues generate as much passion and conviction as
Federal recognition. I am sure that today's hearing will demonstrate
this point.
About fifteen years ago, I sponsored legislation that reaffirmed
Federal recognition for three tribes in Michigan (Little Traverse,
Little River, Pokagon) each having signed treaties with the United
States and each having their unique Federal status unilaterlly stripped
away from them by the Federal Government. It took a long time and
effort, but I was able to get those measures passed as law.
I'm not sure that my legislation would have passed in today's
environment where so many of our colleagues express concerns about
Indian gaming everytime we consider legislation that relates to Federal
recognition, tribal land or economic development.
Nevertheless, Congress certainly has the authority to pass Federal
recognition legislation and has done so many times. In my view,
Congress has sufficient experience with these bills in general and
knowledge of the Lumbee and Virginia Tribes in particular to support
final passage of both measures.
I strongly support both bills. While I respect my colleagues and
friends whose positions are contrary to mine, I believe that these
bills will bring justice long denied to the Lumbee and Virginia Tribes.
I look forward to hearing the testimony from our witnesses today.
Thank you.
______
The Chairman. Thank you, Dale.
The gentleman from American Samoa, Mr. Faleomavaega?
Mr. Faleomavaega. Mr. Chairman, just for the record I do
want to associate myself with the statements that have been
made earlier by Governor Kaine and our colleague, Congressman
Moran, in full support of the proposed legislation to recognize
the tribes from the State of Virginia.
I also want to note, Mr. Chairman, that I have the utmost
respect for my colleagues, Congressman McHenry, Congressman
Shuler and Congressman Jones, whom I have known for many years.
I never questioned the sincerity in their intention in
wanting to do this the right way, understanding also that some
may have said that this is politics, but I want to commend my
good friend, Congressman McIntyre, for his tireless efforts for
all these years in trying to right the wrongs that we have
done.
Tremendous injustice has been done against the Lumbee
Indians. I think 110 years is long enough for any tribe to live
in maligned, even streaks of racism, and the history that they
have tried earnestly to seek recognition.
If you want to talk about history, the 1956 Act definitely
did recognize the Lumbee Indians as a Federally recognized
tribe, but guess the reason why Congress did not give full
recognition?
The Lumbee Indians is the largest tribe east of the
Mississippi, and at that time the Congress said well, we just
don't have enough funds to go around, so therefore while we
recognize the Lumbees as a tribe at this point in time, no, for
some quirk or whatever happened that transpired in that period
of time, they were never given that proper recognition.
I want to say again we had the gentleman, the bureaucrat,
the expert in this very Committee testify before this Committee
who wrote the Federal acknowledgement process regulation, if
you will, who developed the seven criteria points that the
tribes have had to go through before they could be given
recognition.
I will get the exact words that he had spoken before this
Committee, Mr. Chairman. He said if I were going to go through
this process, even I would have objected to the seven criteria
that I wrote in establishing this Federal recognition process.
I might also add with tremendous respect to my colleagues
who do not support the Lumbee bill that is now before us, and I
want to note to my good friend, Congressman Jones, yes, we are
being very, very careful. In the 20 years that I have served as
a Member of this Committee, Mr. Chairman, I can't think of a
tribe that I have spent more time reading about its history,
reading through the congressional proceedings, reading about
the contradictory statements that have been made by the so-
called experts, the bureaucrats.
Even they don't agree among themselves and to the point of
saying genealogically or historically. The problems that even
the fact organization or this little bureau that is within the
Department of the Interior with the limited resources that they
have, some of these tribes have had to go through 15, 20 years
because they could not meet the seven criteria.
As I recall, the Lumbee Indians have had to expend over
$500,000 to try to go through the process, so I want to say
with tremendous respect to my good friends, Mr. McHenry and Mr.
Shuler and Mr. Jones, I believe 110 years is long enough for
these people who have had to endure the pain and the suffering
of being maligned and to suggest that they are not Indians. I
don't need to go through the fact that they also bleed and died
for our nation's defense, and I don't think there is any
question of that.
To my good friend, the Co-Chair of our American Indian
Congressional Caucus, Mr. Kildee, and Mr. Cole I am sure if he
was here he would have spoken. You know, we had the Ranking
Member for years, the gentleman from Alaska, Mr. Young,
supporting this legislation. I can't think of a better person.
This is not a Republican or a Democratic bill, by the way.
This is a bill for America, for these fellow Americans who are
just simply saying give us justice. Give us fairness. We should
support this legislation, Mr. Chairman.
I yield back.
The Chairman. The gentlelady from Guam, Ms. Bordallo?
Ms. Bordallo. Thank you, Mr. Chairman. I really don't have
a question. Much of this is new to me, but I am learning a
great deal.
I am a sponsor, and I support both bills, the Lumbee Tribe
and the Virginia tribes. After hearing the comments of our
esteemed Member, Mr. Kildee, that the responsibility of
recognizing these tribes lies with Congress, I can't imagine
that we would do anything else but to go forward and take the
responsibility upon ourselves.
I don't understand why it has taken so long. Certainly a
hundred years or how many years here we have talked about what
is the biggest obstacle that these tribes have in being
recognized? Can anybody give me that information?
Mr. McIntyre. I would say that to the extent that my
colleague, Mr. McHenry, although he is on the opposite side of
the bill, that unfortunately politics was the reason in the
past that this has not happened. Whatever those politics may
be, and that can be subject to a much lengthier discussion, the
point is today it is time to put those kind of political
bickerings aside.
When you have folks as wide and varied as Mr. Young, who is
the former Chairman and now Ranking Member, as Mr. Rahall, as
the two Republican Senators that supported this that North
Carolina had last session, Mrs. Dole, who formerly served,
realized the injustice that had occurred when Senator Helms
blocked this bill.
If we want to be blunt politically, he blocked it all
through his tenure, even though it passed the House twice under
my predecessor. Ms. Dole recognized the injustice. The first
bill that she dropped as United States Senator was the Lumbee
bill that paralleled the same bill that I had in the House, and
she stood on a stage with me in Lumberton, my hometown, in
front of nearly 800 folks from our county, mainly Lumbees, but
we had African-Americans and whites there too, who stood there
and cheered that finally the politics in this was over. They
could see a senator and a congressman, a Republican and a
Democrat, stand together to say it is time for this justice to
quit being delayed.
So I would hope that those kinds of politics are behind us
now. We have already heard that the Lumbees have been examined
in the process 11 times. They have done everything they
physically and possibly could, as well as historically and
research, and now they have the opportunity to go forward. The
only thing that remains the barrier is an action by Congress,
which the Solicitor General has already said is what is
required.
Just as Mr. Kildee pointed out, it is our constitutional
duty. It is time to get on with it. Thank you.
Ms. Bordallo. I thank the gentleman for answering my
question.
Mr. Chairman, if politics is the root of all of this, then
I say we should go forward and take care of--yes?
Mr. Faleomavaega. Will the gentlelady yield?
Ms. Bordallo. Yes, I will.
Mr. Faleomavaega. I will submit to the gentlelady that just
as we have heard from Congressman Moran and Governor Kaine,
that if these Indian tribes in Virginia had to go through the
seven criteria of the Federal acknowledgement process they
would have failed miserably because all the records have been
expunged based on this racial legislation that Virginia had to
abide by to say that if you are of color--not necessarily being
black. Any person of color is discriminated against in the
worst way.
This is part of this big debate that went over. I think at
that time it was known as craniology. They even determined by
race that your brain determines if you were the most
intelligent species there is, and it got to the point where
this is where the Aryanism that Hitler had propounded about the
white supremacy race and that everybody else of color were less
human, if you will.
So all this is part of what happened here, and the Indians
are caught in between in this whole debate about making
examinations of you physically.
I would say to the gentlelady if the seven criteria is what
we are insisting upon, these Indian tribes of Virginia will
never see the light of ever being recognized because they would
fail automatically, and I thank the gentlelady.
Ms. Bordallo. I thank the gentleman.
Mr. Chairman, I say we go forward. We have been assured by
the President that he supports these bills, so I don't think we
just wasted too much time, and we definitely should go forward.
Thank you.
The Chairman. The gentlelady from the Virgin Islands, Dr.
Christensen?
Mrs. Christensen. Thank you, Mr. Chair. I don't have any
questions.
I want to second that we should move forward with this. I
think it is a travesty that we are here meeting again on this
issue, and I look forward. I support both bills. I think with
the support of the President of the United States also on
record for the recognition of these two tribes I think they
have waited too long, and I hope that we can get this done.
I know the House can get it done, and I hope the Senate
will follow and we can have these tribes finally recognized.
The Chairman. The gentleman from Maryland, Mr. Kratovil?
Mr. Kratovil. Thank you, Mr. Chairman. I do have a
question.
In terms of official recognition being granted to these
tribes, what percentage have been recognized through the
administrative process if you will, Heath, that you suggest we
should follow, and what percentage has been granted by
Congress?
Mr. Shuler. Well, obviously in 1978----
Mr. Kratovil. It doesn't have to be addressed. It is not
directly addressed to Heath. Anybody.
Mr. Shuler. Right. 1978 is when the Department of the
Interior started the acknowledgement process, so we have
through the Office of Federal Acknowledgement since 1978, and
that is when obviously some of those changes we are talking
about with the teeth and other things were eliminated in 1978.
Mr. Kratovil. OK. Anybody else, too. When was the last time
we had one that was recognized through this process that many
of you are suggesting is broken?
Mr. Shuler. You would have to ask the staff that.
Mr. Kratovil. Anybody know?
Mr. McIntyre. There have only been a dozen--around about a
dozen--tribes or maybe 13 tribes. We will be glad to let our
experts, who are in the next panel, answer that more directly,
Frank, but about a dozen tribes have been recognized through
the BIA process.
There have been 562 tribes recognized overall either by
Congress or through other special legislation or special
legislative administrative action.
Mr. Kratovil. OK.
Mr. Shuler. The Lumbees have gone through that recognition
process, and then right before the end they have withdrawn I
think two times.
Mr. Kratovil. OK. And when was the last time there was
recognition granted through the official administrative
process?
Mr. Shuler. You will have to ask the staff that.
Mr. Hastings. Would the gentleman yield?
Mr. Kratovil. Yes.
Mr. Hastings. Since this process started there have been 16
tribes that have been recognized. The last one was in February
of 2007. So there have been 16 since the process started.
Mr. Kratovil. And how many have been seeking it?
Mr. Hastings. There is a whole number right now that are on
the queue, and I think there is something like nine tribes that
are all ready. All the criteria has been satisfied.
Mr. Kratovil. I will yield.
Mr. Hastings. I thank the gentleman for yielding.
Mr. Kratovil. Thank you.
Mr. Faleomavaega. I thank the gentleman for yielding. One
of the problems that we faced in the acknowledgement process is
the poor tribes have to come up with the money to pay for the
research and to go through the whole--just as I have said, a
good example is the Lumbees that have had to bear a tremendous
financial burden.
I will say to the gentleman many of these tribes will not
be able to meet that simply because financially they are unable
to provide the funding to do the research and stuff.
Mr. Kratovil. But it is fair to say that the vast majority
have been recognized through some other form other than this
process? Substantially more?
Mr. McIntyre. That is abundantly correct, yes, and we will
have an expert from the Administration that can go into that
detail. Not since 1978 though.
Mr. Kratovil. OK.
Mr. McHenry. And obviously in terms of the length of our
country, this recognition process established by Congress is
shorter in duration. Therefore, you can understand that in a
200 year history and we have a roughly 30 year process
established, obviously the numbers are larger.
But the point that I think Congressman Shuler and I, as
well as Congressman Jones, are making is that we have an
established process, and what we would like to do is reform
that process and make it work. Otherwise it is largely
irrelevant. Congress is picking, based on obviously our notion
of genealogy, which let us be honest. It is more political than
it is historical, and so that is what we are advocating.
Congressman Shuler's legislation would in fact put the
Lumbee at the front of the line, let them go through the
process and have a timeframe under which they could get an
answer. I think that is really what this is all about.
Mr. McIntyre. There is no sense at all that the Lumbees are
jumping in the front of the line. They have waited over a
hundred years.
Congress did act in 1956 by recognizing the fact that they
were a tribe that should be recognized by their name, but did
not complete the process. The reason we are here is because the
Solicitor General has said Congress has got to act.
And why would we be reforming a process until it is broken?
My colleagues have said about well, the process needs to be
reformed. It needs to be improved. OK. Yes, it does. Otherwise
you wouldn't have all these tribes that have had to wait for
recognition. You wouldn't have the situation of tribes having
to spend all this money and then wait years and years and
years.
Again, I know the Administration will speak to the
particular situation involving it, but the only other two
tribes that were like the Lumbees Congress has corrected. Both
these tribes, the Pascua Yaqui Tribe of Arizona and the Ysleta
del Sur, which were known as the Tiwas of Texas, were in the
same limbo where Congress had acted by recognizing them in
name, but never completed the process. Congress went back and
corrected it.
So the Lumbee Tribe, 57,000, are now the only tribe in
America in this situation. This is not going to open a
floodgate. It is not going to open the doors. No other tribe is
in this situation in America, and no other tribe has a ruling
that the Solicitor General has made saying you have to go back
and correct it, Congress, if you are going to grant full
recognition.
So while we can hear all the concerns, the fact of the
matter is in this case this only applies to the Lumbees, and
they are the only tribe being discriminated against and not
being allowed to go forward, and only Congress can fulfill that
constitutional responsibility.
Mr. Kratovil. Thank you.
Mr. Faleomavaega. Will the gentleman yield?
The Chairman. The Chair will respond to one of the
questions the gentleman from Maryland asked, a very good
question as well, and that is the Committee does have a list of
some 20 tribes that have been recognized since 1978 since the
administrative process was set in place by legislation.
The Chair will both give this to the gentleman from
Maryland as well as provide it for the record.
[The list of tribes follows:]
[GRAPHIC] [TIFF OMITTED] 48110.002
.epsMr. Kratovil. Thank you, Mr. Chairman.
Mr. Faleomavaega. Just one quick thought too?
The Chairman. The Chair will recognize the gentleman from
American Samoa.
Mr. Faleomavaega. OK. Just to note also the fact that what
happened was that Congress punted. In its primary
responsibility to give recognition to the tribes, by implied
consent, it never bothered to do anything other than to allow
the bureaucracy to develop its Federal acknowledgement process.
This is not a congressional process. It is a process that
came about by regulation, and we have just kind of sat by and
just kind of allowed this regulatory process to continue. How
bad it is, I think we are still trying to make improvements by
making it as a statutory mandate by Congress, but at this point
in time Congress has not acted so this is the reason why we
continue to flip flop like this.
But it does not in any way under the Constitution or by any
Federal statute that prevents the Congress from enacting a
recognition Act just as a good example of what is now before
us. I thank the gentleman.
The Chairman. The Chair wishes to thank our colleagues for
their time and testimony this morning, and you are dismissed.
Our next panel is composed of one individual, Mr. George
Skibine, the Acting Deputy Associate Secretary for Policy &
Economic Development, Department of the Interior, Bureau of
Indian Affairs, who will be testifying on both of the pending
bills.
Mr. Skibine, did I pronounce your name right?
Mr. Skibine. Yes, Mr. Chairman.
The Chairman. Thank you for being with us today. We do have
your prepared testimony, and it will be made part of the record
as if actually read. You may proceed as you desire.
STATEMENT OF GEORGE SKIBINE, DEPUTY ASSISTANT SECRETARY FOR
POLICY & ECONOMIC DEVELOPMENT, DEPARTMENT OF THE INTERIOR,
BUREAU OF INDIAN AFFAIRS; ACCOMPANIED BY LEE FLEMING, DIRECTOR
OF THE OFFICE OF FEDERAL ACKNOWLEDGEMENT
Mr. Skibine. Thank you very much. My name is George
Skibine. I am currently not what it says on the card here. I am
not the Acting Deputy Associate Secretary.
I am the Deputy Assistant Secretary for Policy & Economic
Development for Indian Affairs at the Department of the
Interior. I have assumed the responsibilities of the Assistant
Secretary since May of last year. Accompanying me today is Mr.
Lee Fleming.
The Chairman. Excuse me. The Chair will stand corrected
then, and the word Acting will be struck from everywhere in the
record.
Mr. Skibine. OK. All right.
The Chairman. Thank you.
Mr. Skibine. Accompanying me today is Mr. Lee Fleming, who
has been suffering for the past 10 months under my
dictatorship. He is the long-serving Director of the Office of
Federal Acknowledgement. We certainly hope that the Obama
Administration will have a permanent Assistant Secretary for
Indian Affairs very soon.
I am here today to provide the Administration's testimony
on H.R. 31, the Lumbee Recognition Act, and H.R. 1385, the
Thomasina E. Jordan Indian Tribes of Virginia Federal
Recognition Act of 2009. My statement is in the record so I am
not going to repeat. I am going to just make a few statements.
As a general proposition, the Department prefers that
groups seeking Federal recognition petition the Department
under the process in 25 C.F.R. Part 83. However, we recognize
that there are rare circumstances when Congress should
intervene and recognize a troubled group, and the case of the
Lumbee Indians is one such case. As a result, we support H.R.
31 with amendments as discussed in my written statement.
I will mention a few of these amendments that we feel are
necessary. First is under H.R. 31 any fee land that the Lumbee
seeks to convey to the United States to be held in trust that
would be an on-reservation trust acquisition if the land is
located within Robeson County, North Carolina.
The current language in the bill implies that the Secretary
has the authority to take land into trust for the tribe.
However, the bill does not expressly provide that authority,
and we think that Section 4 of the bill should be amended to
clarify that Congress intends to delegate authority to the
Secretary to acquire land in trust for the Lumbee Indians, and
we believe that provision is necessary because of the recent
Supreme Court decision in Carcieri v. Salazar, which
potentially calls into question the ability of the Secretary to
take land into trust for tribes that are recognized after 1934.
So we feel that many of the Congress' restoration
legislation that I have seen has included provisions
specifically authorizing and sometimes even requiring that land
be taken into trust within a specific geographic area, and for
this tribe essentially that means that they are never going to
have a problem with the Carcieri decision, and to make sure
that that doesn't happen here we feel that that should be
clarified in the bill.
The other issues that I wanted to briefly mention is that
the bill does grant jurisdiction to the state in criminal and
civil matters, but it does not address whether the tribe would
continue to have civil regulatory jurisdiction over its members
on its territory.
We believe that the tribe continues to have that
jurisdiction under the bill, but I think it would be good that
at least there was some clarification that that is the case so
that the tribe continues to enjoy the attributes of sovereignty
that all recognized tribes have so far.
Right now in the bill the Department has two years to
essentially verify the role of the tribe, and we would like to
talk to the Committee about that because it is not exactly
clear to us what it is that we are supposed to be verifying and
because we do not have a membership roll currently for the
tribe potentially there are a lot of members. This may take
more than two years for us to do so, depending on what we are
required to do, so the timeframe here may cause a problem for
us.
With respect to H.R. 1385, we neither support nor oppose
the bill. We are staying neutral in a sense because we do not
have sufficient information to determine why the groups cannot
go through the Part 83 process that we have.
We have heard testimony today about that, but in fact I
think these groups have furnished to us their information that
essentially would permit us to say with certainty that there
are these issues that exist with respect to the genealogy,
another issue that it would have to go through under the Part
83, so for this reason we are unable to make that
determination.
We recognize that Congress, as has been stated by Mr.
Kildee, has certainly the authority to recognize tribes under
the Constitution.
This concludes my opening statement. I would be pleased to
answer questions.
[The prepared statement of Mr. Skibine follows:]
Statement of George Skibine, Deputy Assistant Secretary for Policy and
Economic Development for Indian Affairs, U.S. Department of the
Interior, on H.R. 31 and H.R. 1385
Good afternoon, Mr. Chairman, Mr. Ranking Member, and Members of
the Committee. My name is George Skibine. I am currently the Deputy
Assistant Secretary for Policy and Economic Development for Indian
Affairs at the Department of the Interior. I am here today to provide
the Administration's testimony on H.R. 31, the ``Lumbee Recognition
Act'' and H.R. 1385, the ``Thomasina E. Jordan Indian Tribes of
Virginia Federal Recognition Act of 2009.''
The acknowledgment of the continued existence of another sovereign
is one of the most solemn and important responsibilities delegated to
the Secretary of the Interior. Federal acknowledgment enables Indian
tribes to participate in Federal programs and establishes a government-
to-government relationship between the United States and the Indian
tribe, and has considerable social and economic impact on the
petitioning group, its neighbors, and Federal, state, and local
governments. Acknowledgment carries with it certain immunities and
privileges, including governmental activities exempt from state and
local jurisdictions and the ability of newly acknowledged Indian tribes
to undertake certain economic opportunities.
We recognize that under the United States Constitution, Congress
has the authority to recognize a ``distinctly Indian community'' as an
Indian tribe. But along with that authority, it is important that all
parties have the opportunity to review all the information available
before recognition is granted. That is why we support the Department's
administrative recognition process that requires groups to go through
the Federal acknowledgment process because it provides a deliberative
uniform mechanism to review and consider groups seeking Indian tribal
status.
To be granted Federal acknowledgment under the Department's Part 83
regulations, petitioning groups must demonstrate that they meet each of
seven mandatory criteria. The petitioner must:
(1) demonstrate that it has been identified as an American Indian
entity on a substantially continuous basis since 1900;
(2) show that a predominant portion of the petitioning group
comprises a distinct community and has existed as a community from
historical times until the present;
(3) demonstrate that it has maintained political influence or
authority over its members as an autonomous entity from historical
times until the present;
(4) provide a copy of the group's present governing document
including its membership criteria;
(5) demonstrate that its membership consists of individuals who
descend from an historical Indian tribe or from historical Indian
tribes that combined and functioned as a single autonomous political
entity and provide a current membership list;
(6) show that the membership of the petitioning group is composed
principally of persons who are not members of any acknowledged North
American Indian tribe; and
(7) demonstrate that neither the petitioner nor its members are
the subject of congressional legislation that has expressly terminated
or forbidden the Federal relationship.
A criterion shall be considered met if the available evidence
establishes a reasonable likelihood of the validity of the facts
relating to that criterion. A petitioner must satisfy all seven of the
mandatory criteria in order for the Department to acknowledge the
continued tribal existence of a group as an Indian tribe under the Part
83 regulatory process.
H.R. 31, the ``Lumbee Recognition Act''
In 1956, Congress designated Indians then ``residing in Robeson and
adjoining counties of North Carolina'' as the ``Lumbee Indians of North
Carolina'' in the Act of June 7, 1956 (70 Stat. 254). Congress went on
to note the following:
Nothing in this Act shall make such Indians eligible for any
services performed by the United States for Indians because of
their status as Indians, and none of the statutes of the United
States which affect Indians because of their status as Indians
shall be applicable to the Lumbee Indians.
In 1989, the Department's Office of the Solicitor advised that the
1956 Act forbade the federal relationship within the meaning of the
acknowledgment regulations, and that the Lumbee Indians were therefore
precluded from consideration for federal acknowledgment under the
administrative process. Because of the 1956 Act, the Lumbee Indians
have been deprived of the ability to seek Federal acknowledgment
through administrative means.
There are rare circumstances when Congress should intervene and
recognize a tribal group, and the case of the Lumbee Indians is one
such rare case. We support H.R. 31 with amendments as discussed below.
H.R. 31 extends Federal recognition to the ``Lumbee Tribe of North
Carolina'' and permits any other group of Indians in Robeson and
adjoining counties whose members are not enrolled in the Lumbee Tribe
to petition under the Department's acknowledgment regulations. The
Office of Federal Acknowledgment has received letters of intent to
petition from six groups that may overlap with each other. In addition,
we have identified over 80 names of groups that derive from these
counties and are affected by the 1956 Lumbee Act. Some of these groups
claim to be the ``Lumbee Tribe''. Therefore, we recommend Congress
clarify the Lumbee group that would be granted recognition under this
bill based on the group's current governing document and its current
membership list. Not doing so could potentially expose the Federal
government to unwarranted lawsuits and possibly delay the recognition
process for the other groups of Indians in Robeson and adjoining
counties not enrolled in the Lumbee Tribe.
Under H.R. 31, any fee land that the Lumbee seeks to convey to the
United States to be held in trust shall be considered an ``on-
reservation'' trust acquisition if the land is located within Robeson
County, North Carolina. The current language in the bill implies that
the Secretary has the authority to take land into trust; however, the
bill does not expressly provide that authority. Section 4 of the bill
should be amended to clarify that Congress intends to delegate
authority to the Secretary to acquire land in trust for the Lumbee
Indians.
In addition, the bill would prohibit the Lumbee Indians from
conducting gaming activities under any federal law, including the
Indian Gaming Regulatory Act or its corresponding regulations.
Under H.R. 31, the State of North Carolina has jurisdiction over
criminal and civil offenses and actions on lands within North Carolina
owned by or held in trust for the Lumbee Tribe or ``any dependent
Indian community of the Lumbee Tribe.'' The legislation, however, does
not address the State's civil regulatory jurisdiction, which includes
jurisdiction over zoning, and environmental regulations. Additionally,
the Secretary of the Interior is authorized to accept a transfer of
jurisdiction over the Lumbee from the State of North Carolina, after
consulting with the Attorney General of the United States and pursuant
to an agreement between the Lumbee and the State of North Carolina.
Such transfer may not take effect until two years after the effective
date of such agreement.
We are concerned with the provision requiring the Secretary, within
two years, to verify the tribal membership and then to develop a
determination of needs and budget to provide Federal services to the
Lumbee group's eligible members. Under the provisions of this bill, the
``Lumbee Tribe'', which the Department understands includes over 40,000
members, would be eligible for benefits, privileges and immunities that
are similar to those possessed by other Federally recognized Indian
tribes. In our experience verifying a tribal roll is an extremely
involved and complex undertaking that can take several years to resolve
with much smaller tribes. While we believe there are approximately
40,000 members, we do not currently have access to the Lumbee's
membership list and thus do not have the appropriate data to estimate
the time to verify them nor do we know how many Lumbee members may be
eligible to participate in Federal needs based programs. Moreover, H.R.
31 is silent as to the meaning of verification for inclusion on the
Lumbee group's membership list roll.
In addition, section 3 may raise a problem by purporting to require
the Secretary of the Interior and the Secretary of Health and Human
Services to submit to the Congress a written statement of a
determination of needs and budget for the Lumbee Tribe for programs,
services and benefits to the Lumbee Tribe. The appropriate means for
communicating to Congress a determination of needs and budget for
programs administered by the Department of the Interior and the
Department of Health and Human Services is the President's Budget.
Should Congress choose not to enact H.R. 31, the Department feels
that at a minimum, Congress should amend the 1956 Act to afford the
Lumbee Indians and all groups ``residing in Robeson and adjoining
counties of North Carolina'' the opportunity to petition for Federal
acknowledgment as an Indian tribe under the Department's regulations.
H.R. 1385: ``Thomasina E. Jordan Indian Tribes of Virginia Federal
Recognition Act of 2009.''
H.R. 1385 would provide Federal recognition as Indian tribes to six
Virginia groups: the Chickahominy Indian Tribe, the Chickahominy Indian
Tribe--Eastern Division, the Upper Mattaponi Tribe, the Rappahannock
Tribe, Inc., the Monacan Indian Nation, and the Nansemond Indian Tribe,
all of which are currently petitioners in the Department's Federal
acknowledgment process. Under 25 CFR Part 83, these six groups have
submitted letters of intent and partial documentation to petition for
Federal acknowledgment as Indian tribes. Some of these groups are
awaiting technical assistance reviews under the Department's
acknowledgment regulations. The purpose of the technical assistance
reviews is to provide the groups with opportunities to supplement their
petitions due to obvious deficiencies and significant omissions. To
date, none of these petitioning groups have submitted completed
documented petitions to demonstrate their ability to meet all seven
mandatory criteria.
The Department acknowledges the authority of Congress to recognize
Indian tribes, but again, in most circumstances we prefer the
uniformity and certainty provided by the existing administrative
process.
This concludes my prepared statement. I will be happy to answer any
questions the Committee may have.
______
Mr. Skibine. I have asked Mr. Fleming--well, he is gone
now--to provide if he has any answers on statistics that were
required by the gentleman from Maryland.
The Chairman. Go ahead.
Mr. Fleming. OK.
The Chairman. State your name, please, for the record.
Mr. Fleming. Lee Fleming.
The Chairman. Your name and position?
Mr. Fleming. Director of the Office of Federal
Acknowledgement.
Some of the questions were involved with the number of
decisions that have been resolved under our acknowledgement
process. We have on our website the status summary of
acknowledgement cases, and the Department has resolved 47
petitioning groups in their acknowledgement process.
Forty-four went specifically through 25 C.F.R. Part 83,
and, out of the 44, 16 were acknowledged and 28 were denied.
One was clarified by legislation, and two were clarified by
other means.
Of the petitioners that have been resolved by Congress, two
were restoration bills and two were recognition bills, so that
is nine specifically of petitioners that have been resolved,
and then there are 10 petitioning groups that have been
resolved by other means, so when you add 47 by the Department,
nine by Congress and 10 by other means of the petitioning
groups, 66 petitions have been resolved by the Department or by
Congress or by other means, and this is all on our website.
The Chairman. Thank you very much for supplying that
information. We appreciate it.
Let me first ask unanimous consent that our colleague from
North Carolina, Mr. McIntyre, be allowed to be a part of the
podium and ask questions.
[No response.]
The Chairman. Without objection. We welcome you.
Mr. Skibine, let me ask you. I understand you are a former
director at Office of Indian Gaming.
Mr. Skibine. That is correct.
The Chairman. Then having served in that position, there is
probably no one better to answer this question that I have.
Does the gaming language in H.R. 31, the Lumbee bill, or
H.R. 1385, the Virginia tribes bill, allow any of these tribes
to open a casino?
Mr. Skibine. In my opinion, the answer to that is no. We
believe that the language, which is similar in all the bills,
is ironclad in terms of preventing tribes from gaming, so we
certainly agree with Congressman Moran, who testified before,
that gaming is not going to be an option for the groups under
consideration.
The Chairman. Even if the Governor and/or the legislature
of the affected states were to approve such?
Mr. Skibine. That is correct.
The Chairman. Thank you. Your testimony recommends
amendments to the Lumbee Recognition Act, and you refer to them
in your oral testimony as well, and we do look forward to
working with you to resolve these issues. I am sure you will
work with us on that as well.
Mr. Skibine. Absolutely.
The Chairman. The Chair recognizes the Ranking Member.
Mr. Hastings. Thank you, Mr. Chairman, and welcome, Mr.
Skibine, to the hearing. Thank you very much for your
testimony.
In 2007, somebody that has a similar position with you,
Assistant Secretary for Indian Affairs, testified here on what
is essentially the same bill or a similar bill regarding the
Lumbees two years ago, and they testified more on the process,
saying that the Lumbees should go through the regular process
and therefore did not endorse the bill.
Now, your testimony was pretty straightforward. You
endorsed the bill.
Mr. Skibine. That is correct.
Mr. Hastings. OK. Given that there has been no Assistant
Secretary of Indian Affairs that have even been nominated let
alone confirmed, who made that decision then that the
Department should endorse this bill?
Mr. Skibine. The decision was made by the political
leadership at Interior.
Mr. Hastings. And who is that?
Mr. Skibine. Well, I am not sure. We propose testimony, and
then it is cleared through the Department. It is then cleared
by the Office of Management and Budget. So involved in our
process is the Deputy Chief of Staff, Renee Stone, and the
Associate Deputy Secretary.
Mr. Hastings. Well, let me ask you then. Was Secretary
Salazar involved in this decision?
Mr. Skibine. That I do not know because I think----
Mr. Hastings. You don't know.
Mr. Skibine.--that they probably talked to the Secretary,
but I was not involved in those discussions.
Mr. Hastings. OK. So what I have heard you say so far is
you don't know if Secretary Salazar has endorsed this, but it
was a political decision, and that decision came out of OMB?
Mr. Skibine. Well, for every bill OMB needs to clear the
testimony so that is what happened here.
Mr. Hastings. So your interpretation is that the
endorsement of this bill, contrary to what was the position of
Interior two years ago, was a political decision made at OMB?
Mr. Skibine. No. The Department. It was the Department's
position, and OMB essentially has to look----
Mr. Hastings. OK. All right. Now I am getting it. So the
Department, your Department, said that you were going to
endorse this legislation?
Mr. Skibine. That is correct.
Mr. Hastings. Who is that?
Mr. Skibine. In the Department?
Mr. Hastings. Yes.
Mr. Skibine. Well, it is, as I said, the political
leadership.
Mr. Hastings. But I am asking. So who is the person?
Mr. Skibine. Well, as I was beginning to say, we work with
the Deputy Chief of Staff.
Mr. Hastings. Who is that?
Mr. Skibine. Renee Stone.
Mr. Hastings. So Renee Stone is the Deputy Chief of Staff?
Mr. Skibine. For the Secretary.
Mr. Hastings. For the Secretary.
Mr. Skibine. Right. And the Deputy Associate Solicitor,
Laura Davis.
Mr. Hastings. And so Laura Davis works for Ms. Stone? Is
that correct?
Mr. Skibine. No. She works for the Secretary.
Mr. Hastings. For the Secretary?
Mr. Skibine. Right.
Mr. Hastings. But you don't know if the Secretary was
involved in that directly because you got your correspondence
with those two people?
Mr. Skibine. Personally I do not know. That is correct.
Mr. Hastings. OK. And then I know the testimony always has
to be gone through OMB, so OMB bought off on this. I just find
that rather strange.
But you have no position on the other bill regarding the
Virginia tribes?
Mr. Skibine. On the Virginia bill, that is right. We do
not, neither support nor oppose that bill.
Mr. Hastings. You said a rare case. Why is the Lumbee
situation rare?
Mr. Skibine. The Lumbee situation is rare because the
Lumbee Tribe, the Lumbees, as was stated in the previous panel,
are unable to go through the restoration process in Part 83
because of an Act of Congress that essentially has been
interpreted by the Solicitor to prohibit them from going
through that process.
Mr. Hastings. Mr. Shuler's legislation would essentially
negate that position. Do you have a position on Mr. Shuler's
bill?
Mr. Skibine. No, I do not.
Mr. Hastings. Did you run that up the flagpole?
Mr. Skibine. No, I do not. We are not testifying to that.
Mr. Hastings. I mean did you ask if anybody in the
Department had a position on Mr. Shuler's bill?
Mr. Skibine. No, I did not.
Mr. Hastings. OK. How come? The reason I ask is if your
answer is because legislation prohibits them to go through the
normal process and a bill has been introduced that if it would
pass would allow them to go through the normal process, why
wouldn't you run that up the flagpole?
Mr. Skibine. Excuse me. I am sorry. I got distracted.
Mr. Hastings. Well, I am just saying if your answer to me
as to why Lumbee is a rare circumstance, the Lumbee issue is a
rare circumstance, mainly Congress' Act of 1956, and
legislation has been introduced by Mr. Shuler that would
correct that, why wouldn't you check with people above you to
find out what their position is on that bill?
Mr. Skibine. Well, because we were not asked to testify on
that bill, so essentially that was not an issue at this point.
But I think that in looking at the Lumbee bill, the reasons
that were eloquently stated by the gentleman from American
Samoa. We think that as a matter of equity and good conscience
it is time for the Lumbee Tribe to be recognized, and we stand
on that.
Mr. Hastings. As I said in my opening statement, the
process here is what a lot of this is focused on. I think there
are compelling arguments, frankly, why Congress should take
this action, which they have a right to do, but I am just
trying to figure out what the process is.
Mr. Chairman, thank you very much for your indulgence.
The Chairman. The Chair would just respond twice to the
gentleman from Washington.
First of all, the Secretary works for the President of the
United States. Second, the Chair did not schedule a hearing on
Representative Shuler's bill, so perhaps that is a reason why
the Department did not express a position on Representative
Shuler's bill because it was not scheduled for a hearing today.
Mr. Hastings. Would the gentleman yield?
The Chairman. Sure.
Mr. Hastings. Yes. I recognize that, but I was just struck
by his response and so that was a normal thing to follow up,
but I thank you for that.
I could ask, if I may, if he would submit at least for the
record the process that he laid out here for the record in
writing. I would appreciate that.
Mr. Skibine. Sure. We will do that.
Mr. Hastings. Thank you.
The Chairman. Thank you.
The gentleman from Michigan, Mr. Kildee?
Mr. Kildee. Thank you very much, Mr. Chairman.
Mr. Skibine, do you think that Congress to streamline
things should delegate its power of taxation to some bureau in
the Executive Department?
Mr. Skibine. I don't believe so.
Mr. Kildee. OK. I am glad to hear you say that. Do you
think it should delegate its appropriations power to some
bureau?
Mr. Skibine. I don't believe so either.
Mr. Kildee. Do you think it should delegate its war power
to someone like Rumsfeld?
Mr. Skibine. I am not going to take a position on that one.
Mr. Kildee. You are very prudent. You know, on the very
same page where it says Congress shall have the power to
regulate commerce with foreign nations and among the several
states and with Indian tribes, all the powers I mentioned are
on that very same page. As a matter of fact, regulating
Commerce with the Indian tribes is even placed higher than the
war powers on the same page.
I mean, I take an oath every two years to uphold this
Constitution. I don't take any oath to uphold what any bureau
may say. I have some good friends in the Bureau, but I take an
oath and that oath is very serious. In my religion, if I
violated that oath it would be a sin. In law, it would be a
crime. It is a very serious thing.
Those words weren't put there just willy nilly. Our
founding fathers really were trying to figure out a way to
position the Federal government vis-a-vis the Indians, so it
said we are going to treat them then with the same respect as
sovereign nations, as France and Germany. As a matter of fact,
when you go down to read the treaties you can find the treaties
we made with France and other countries and the Indian
treaties.
I got started in this whole thing years ago. I read the
Treaty of Detroit. That treaty was very important, so I wrote a
bill to bottom out that treaty saying that any Michigan Indian
can go to college, a public college of Michigan, and the state
pays the tuition. That was my bill about 44 years ago. It is
still the law.
But I got that from reading the treaty made with a
sovereign nation under the power of this Constitution, and I
think all of us up here take an oath each year, every two
years, to follow the Constitution so we would not delegate our
war power, our taxation power, any of these powers to a
bureaucracy. We alone hold those powers given by the
Constitution.
By the way, I do appreciate your personal work over there.
You are the person who testified today, so I had to ask the
questions of you. You would recognize this Constitution gives
us enormous authority to govern this country?
Mr. Skibine. Absolutely, yes.
Mr. Kildee. Thank you very much. Thank you, Mr. Chairman.
The Chairman. Thank you.
Mr. Faleomavaega?
Mr. Faleomavaega. Thank you, Mr. Chairman.
For the record, I just want to say, Mr. Secretary,
Secretary Skibine and Mr. Fleming, not at any time have I ever
tried to suggest that the Federal Acknowledgement Division of
the Department of the Interior are evil people or they try to
do things. I never question your sincerity or your efforts to
work accordingly to the regulations that have been provided.
I note with interest that Governor Kaine in his statement
mentioned that these Indian tribes in Virginia did submit their
applications through the FAP process, and it says that
unfortunately, and I quote from the statement, ``These
applications have been denied as incomplete.''
One of the examples as to why the applications have been
noted incomplete was the fact that from 1912 to 1946 this
gentleman by the name of Walter Plecker of the Virginia Bureau
of Vital Statistics led an effort to actively destroy vital
records and evidence of Indian existence in the Commonwealth of
Virginia. I suspect this is probably true in many other states
of this effort.
The practice was supported, and I am quoting from Governor
Kaine's statement. ``The practice was supported when the
eugenics movement...''--you know, this is where craniology and
all these things, that a person's intelligence is determined by
his physical being--``...was endorsed by Virginia universities
and the Virginia General Assembly enacted a Racial Integrity
Act in 1924, a race-based statute that forced all segments of
the population to be registered at birth in one of two
categories, white or colored.''
It was even criminal. If you declared yourself as a Native
American, you will be put in prison for one year. So for this
30 year period, and I am just citing this example, Mr. Fleming,
it would be totally impossible for these Indian tribes to
combine with the seven criteria, given the fact that this is
what states have done against the Indian tribes.
So I just wanted to note that for the record. Would you say
that the criteria that has been stipulated under the FAP
requirements, these Indian tribes would never have a chance to
be recognized given the fact that what the state has done to
them by way of just nuding them, if you want to put it in those
terms?
Now, I notice that you neither recognized nor accept the
applications of the Indian tribes of Virginia, but do you see
the problems that we are having here if we are to depend
entirely on the FAP process; that these tribes from Virginia
would never see the day that they would be recognized because
this is the kind of thing that was done against
them?
Mr. Fleming. I would respectfully disagree with your
statements, and I do take a different view from Governor
Kaine's information from his statement.
Records in Virginia do exist and they were not destroyed.
The vital records of birth, marriage, divorce, death and
probate, they are in the record. Not only are they in the hands
of the individuals whom they pertain, but they are available at
the local registrar level and the state registrar level.
In preparation for this hearing I wanted to reach into what
evidence was submitted on behalf of the Virginia groups, and in
2001 this was the material that we received. In one of the
group's materials were copies of vital records that were not
destroyed. There were two marriage licenses and 17 copies of
birth certificates.
Every one of these documents recorded these individuals or
parents of these individuals as Indian or red. They were not
altered. They were not destroyed. Of the 17 copies of the birth
certificates issued between 1915 and 1949----
Mr. Faleomavaega. Reclaiming my time, the point that I am
making here is this race-based statute in Virginia's past made
it criminal for Native people to claim their Native American
heritage. You go to jail if you say I am a Native American.
So you may say that the records are in there. Are you
suggesting that Governor Kaine's statement--he lied before this
Committee in what he is saying?
Mr. Fleming. I wouldn't say that. I would say he may have
been misinformed because I have copies of these birth
certificates that have Walter Plecker's signature on them, and
they do indicate Indian as how they were recorded, and they
are.
Mr. Faleomavaega. Would you agree that the burden is on
these Indian tribes that have to go through the whole process
in figuring out that these records existed or maybe were
deleted purposely because of this Virginia statute?
Mr. Fleming. I would say that these groups have the
opportunity to submit the same types of records that all the
other petitioning groups submit, and these records do indicate
racial designation of Indian.
If there are examples of records that have been destroyed,
then we need to see the evidence of that situation. Our
regulation allows for courthouses that may have been burned or
records that have truly been destroyed, but we have before us
17 copies of birth certificates of individuals of one of the
groups before this bill, and the records indicate Indian or
red.
Mr. Faleomavaega. I don't think you get my point here, Mr.
Fleming. The point I am making here is it is a criminal
statute. To declare yourself a Native American--just to say I
am Native American--you go to jail for one year.
What kind of a burden does that put on these Indian tribes
from Virginia to go through the hurdle and say well, they
changed the record to simply identify yourself as colored or
white, but even to say you are Native American it is a criminal
statute in the State of Virginia declaring yourself as an
Indian.
Mr. Fleming. But as you noted earlier, there were military
records that are on the Federal level that indicates that these
individuals fought with valor, and they were----
Mr. Faleomavaega. Reclaiming my time, Mr. Fleming, I want
to say simply from what has been said I respectfully do not
agree with your point of view on this, and I sincerely hope
that the flagpole goes up to Secretary Salazar and to the White
House that the same consideration ought to be given to what has
happened to the six tribes from Virginia, the same problem that
for 110 years the Lumbee Indians are now given at last, for the
first time in my 20 years that I have been here, that now the
White House has given acknowledgement and agreement that the
Lumbees should be recognized after 110 years.
I yield back. Thank you, Mr. Chairman.
The Chairman. The Chair will announce, after recognizing
the next Member, Mr. Broun of Georgia, that we will recess for
approximately 15 or 20 minutes to answer two roll calls on the
Floor of the House.
Mr. Broun of Georgia?
Mr. Broun. I thank the Chairman for yielding for my
questions. I am sorry that I was late for this hearing. I was
tied up in another committee, Mr. Chairman, and it made me run
late.
I know there is an administrative procedure, as well as a
legislative procedure, to try to designate various tribes. I
would like to get the witnesses to just comment about the two
procedures and whether it is your intent that the legislative
procedure is not as valid or is not as good a way to seek a
remedy for tribes that want to seek designation, so if you all
would please comment on that?
Mr. Skibine. Well, in our view the legislative route that
recognizes a tribe is clearly just as valid as the party D3
process because, as stated by Mr. Kildee, the Congress has the
constitutional authority to recognize Indian tribes, and the
Congress has passed numerous legislation.
These tribes are Federally acknowledged now and have the
same rights as any other Indian tribe that has been recognized
through the Federal regulation.
Mr. Broun. Mr. Fleming, do you want to comment on that?
Mr. Fleming. Well, I wanted to comment that in 1994
Congress passed the Federally Recognized Indian Tribe List Act,
and in its findings it acknowledged that there were ways in
which Indian tribes could be acknowledged through an Act of
Congress or through the 25 C.F.R. Part 83 process.
The Judiciary Branch is listed, but our interpretation is
that they review our administrative decisions under the
Administrative Procedure Act, so those are the two mechanisms.
Mr. Broun. Now, there have been many applications made to
ask for designation, and many applications have been denied in
that administrative process.
Is it your intent to try to include people or groups or
tribes as designees, or is it more your intent to exclude
people or tribal groups as designees?
Mr. Fleming. Our process allows for a thorough review of
the evidence under seven mandatory criteria. Groups will either
meet the criteria or they will not.
Earlier I had mentioned that under our process directly 16
groups have been acknowledged as Indian tribes and 28 groups
have been denied Federal acknowledgement, so the decisions are
either positive or they are negative, and then our regulations
allow for due process, and if a petitioner or interested party
does not agree with the Department's decision then they may
appeal before the Interior Board of Indian Appeals or they may
challenge the decision in Federal Court under the
Administrative Procedure Act.
Mr. Broun. OK. Mr. Chairman, just for the sake of time I
will yield back and I appreciate your time since we have a vote
on.
Mr. McIntyre. Mr. Chairman, if he yields, may I just get a
clarification on the statement he just made? I just want a
clarification. May I?
You stated that 16 tribes have been recognized by the
Bureau since the time the legislation passed? That is the
statement you just made to Dr. Broun?
Mr. Fleming. The 16 groups that have been acknowledged have
been acknowledged since the beginning of our acknowledgement
regulations in 1978.
Mr. McIntyre. And during that same time period, earlier it
was stated in testimony that 20 have been recognized by
Congress in that same time period, correct?
Mr. Fleming. I recall the statement. My statistic is only
of groups that are currently under our process.
Mr. McIntyre. OK.
Mr. Fleming. It does not include tribes that were
recognized through other avenues.
Mr. McIntyre. Thank you. Thank you, Mr. Chairman. I just
wanted to make the point. Twenty by Congress. Sixteen through
the process. Thank you.
The Chairman. The Chair recognizes the gentleman from
Georgia.
Mr. Broun. Thank you, Mr. Chairman. Just one quick
housekeeping item. I would ask unanimous consent to have my
written comments entered into the record.
The Chairman. Without objection. So ordered.
[The prepared statement of Mr. Broun follows:]
Statement of The Honorable Paul C. Broun, a Representative in Congress
from the State of Georgia
Thank you, Chairman Rahall and Ranking Member Hastings for holding
this important hearing today. I appreciate the opportunity to hear
testimony and ask questions from the witnesses today on H.R. 31, the
Lumbee Recognition Act, and H.R. 1385, the Thomasina E. Jordan Indian
Tribes of Virginia Federal Recognition Act of 2009.
I remain concerned with several aspects of both pieces of
legislation before us today. There has been much debate over whether
federal recognition of these tribes is warranted. Recognizing these
tribes through the legislative process would go around the Department
of Interior's existing Federal Acknowledgement Process that other
groups seeking recognition have had to complete. I am also very
concerned about the significant cost that would be placed on the
American taxpayer.
Receiving Federal acknowledgment would enable these Indian tribes
to participate in Federal programs and provides them with special
rights, services, and immunities. As such, I believe we must proceed
with caution and make sure that circumventing the Bureau of Indian
Affairs' recognition process is warranted and that a legislative
solution is needed.
Mr. Chairman, thank you for calling this hearing. I look forward to
hearing from our witnesses.
______
The Chairman. Does the gentlelady from the Virgin Islands
wish to be recognized before we break for votes?
Mrs. Christensen. Thank you, Mr. Chairman. I want for the
record just to say--I should have said this earlier--that the
limitation on gambling does give me some concern.
I realize it is in the legislation and it is done, but I
just think it is unfair for us to put the tribe to have to give
up something that would normally be their right to participate
in to get Federal recognition.
I have one question I guess for Mr. Skibine.
Mr. Skibine. Skibine.
Mrs. Christensen. OK. Thank you. Are you aware of any prior
instances where previously ineligible tribes for the
administrative process were made eligible by Congress and
required to go through that process?
Mr. Skibine. No, actually we are not aware of any tribe,
any such tribe.
Mrs. Christensen. That has been ineligible by the
administrative process where Congress overturned that? We have
never done that?
Mr. Skibine. And then has required them to go through the
process? No, we are not aware of that.
Mrs. Christensen. Thank you. I guess that would be my only
question, Mr. Chairman. I yield back the time.
The Chairman. Thank you. Does the gentlelady from Wyoming
wish to be recognized quickly before we go to break, or would
she rather wait until we come back?
Ms. Lummis. Thank you, Mr. Chairman. I would prefer to wait
until we come back.
The Chairman. Fine.
Ms. Lummis. Thank you.
The Chairman. The Committee will stand in recess for
approximately 15 or 20 minutes. We do have two votes on the
House Floor.
[Recess.]
The Chairman. The Committee on Natural Resources will come
to order and recognize the gentleman from Washington, Mr.
Hastings.
Mr. Hastings. Mr. Skibine, just one thing. We kind of had
the conversation here and the exchange about how this decision
was made. I just wanted to clarify that we did ask you for
written explanation of how that decision----
Mr. Skibine. Yes.
Mr. Hastings. OK. I just wanted to clarify that. Thank you.
Mr. Skibine. And we will provide that.
Mr. Hastings. Thank you very much. Appreciate it.
The Chairman. Does the gentleman from North Carolina, Mr.
McIntyre, wish to ask questions?
Mr. McIntyre. No, sir. No further questions. We are looking
forward to our next panel from the Lumbee Tribe, and we want to
thank these gentlemen for their testimony.
The Chairman. OK. We were holding for Ms. Lummis, who
wanted to come back. We are unable to locate her at this time,
but we do ask unanimous consent--at least I ask unanimous
consent--that she be allowed to ask questions for the record in
writing and that you be available to respond to those.
Mr. Skibine. Yes, we will.
The Chairman. That your response will be made part of the
record as well.
Mr. Skibine. Yes.
The Chairman. OK. Thank you, Mr. Skibine. We appreciate
your testimony and your patience in being with us today.
Mr. Skibine. Thank you very much.
The Chairman. Our Panel No. 4 will be composed of the
following individuals: The Honorable James Ernest Goins,
Chairman, the Lumbee Tribe of North Carolina, Pembroke, North
Carolina, testifying on H.R. 31;
The Honorable Stephen R. Adkins, Chief, Chickahominy Tribe,
on behalf of the Virginia Indian Tribal Alliance for Life,
Charles Country, Virginia--maybe that is supposed to be
County--in regard to H.R. 1385;
Mr. Gerald L. Danforth, Retired Chairman, the Oneida Tribe
of Wisconsin, Oneida, Wisconsin, on H.R. 31; Ms. Arlinda F.
Locklear, Esquire, attorney for the Lumbee Tribe of North
Carolina, from Washington, D.C. on H.R. 31;
Dr. Helen C. Rountree, Ph.D., Professor Emerita of
Anthropology, Old Dominion University, Hampton, Virginia, on
H.R. 1385; and Mr. Michael Cook, the Executive Director, United
South and Eastern Tribes, Inc., from Nashville, Tennessee,
testifying on H.R. 31.
Ladies and gentlemen, we welcome you to the Committee on
Natural Resources and appreciate your patience in being with us
all morning as you have. We do have your prepared testimony,
which will be made part of the record as if actually read, and
you may proceed as you desire in the order in which I announced
you.
The first one will be Chairman Goins.
STATEMENT OF HON. JAMES ERNEST GOINS, CHAIRMAN, LUMBEE TRIBE OF
NORTH CAROLINA, PEMBROKE, NORTH CAROLINA
Mr. Goins. Thank you. Chairman Rahall, Congressman Hastings
and Members of the Committee, thank you for the opportunity to
testify in support of H.R. 31, a bill to recognize the Lumbee
Tribe of North Carolina.
On behalf of the Lumbee people, I want to express our
particular gratitude to you, Chairman Rahall, for your support
for our cause. I also want to express my heartfelt appreciation
on behalf of the Lumbee people to Congressman McIntyre, Senator
Burr and Senator Hagan for their leadership on this issue.
Mr. Chairman, my name is James E. Goins, and I am Chairman
of the Lumbee Tribe. I am the great, great grandson of Solomon
Oxendine, who along with 44 other tribal leaders petitioned the
Federal government for recognition in 1888. Today I come before
you once again requesting Federal recognition for my people.
I am joined by The Honorable Gerald Danforth, former
Chairman of the Oneida of Wisconsin, who will testify about his
experiences, visit and support for full Federal recognition of
the Lumbee Tribe. Finally, I am accompanied by our attorney on
recognition, Arlinda Locklear, who will also testify about the
need for legislation to recognize our people.
In a short film, I would like to share with you two parts
of our community and history. Critics of the Lumbee always
become believers once they visit our territory, so I bring to
you the land of the Lumbee and hope that you, too, can support
our cause.
We begin with the Lumbee River, the place where we have
always lived. Like other tribes, we draw our name, Lumbee, from
this river, which is an important part of our identity. Lumbee
is the only name my people have selected for themselves.
St. Anna Church is shown here. It is one of 120 Indian
churches in our territory and is one of the oldest. It has been
led by Lumbee ministers for more than 100 years. This church is
located in Dechava settlement and was a staging area for Fred
Baker, a special Indian agent ordered by the Commission of
Indian Affairs to study my people. His report, one of 11 done
by the Federal government on the Lumbee, stated that over 2,000
Lumbee tribal members met him at St. Anna.
Mr. Chairman, I have these 11 reports and request that they
be made part of the record.
The Chairman. Without objection. The request is granted.
[NOTE; The reports have been retained in the Committee's
official files.]
Mr. Goins. Mr. Chairman, each and every one of these
reports identifies us as Indian and notes the strength of our
community and leadership.
In this panoramic view of St. Anna's Church, we see the
Lumbee River holding its Methodist conference created in 1900.
Today this association remains the only all Indian religious
conference in the country.
Education has always been important for the Lumbee Tribe.
When the state recognized us in 1885, it established a school
system controlled by the tribe and limited eligibility to our
children. Here is one of the earliest pictures of one of our
all Indian schools. Here is Prospect School that fits on the
porch of the old Cheraw settlement.
Prospect School has a student population that is 99.8
percent Indian. The principal, teachers and, yes, even the
superintendent of Robeson County Public Schools are all Indian.
This school is very dear to my heart. My grandfather, my father
and I attended this school. My children attended this school,
and now my grandchild attend this school. Because we live in
predominantly Lumbee communities, most of our children attend
predominantly Indian schools.
In 1887, the Indian Normal School was founded to train
Indian teachers for our Indian school system. It has been in
operation ever since and is now the University of North
Carolina at Pembroke. North Carolina recently designated this
campus as a historical Indian college.
This is the family homeplace of the tribe's most famous
hero, Henry Berry Lowry. Lowry led the effort to protect our
people against constriction and to hard labor by the local
militia during the Civil War. He watched the militia execute
his father and brother in 1865. They are buried here. This
began Lowry's 10 year war to protect our people.
Here you see Red Banks where the BIA proposed to establish
a land trust program for our people in 1935, but the BIA
transferred the program to the Department of Agriculture. Even
so, an all Indian agricultural farming co-op was established
here and is the longest running such co-op in the country.
Now you see a Lumbee homecoming held annually in Pembroke.
Over 25,000 Lumbees gather to celebrate our heritage.
Mistakenly, these streets were closed in 1956 to celebrate what
we thought was full Federal recognition with the passage of the
Lumbee Act. This was one of the many Acts introduced in
Congress to recognize the tribe. The 1956 Act was the only one
that passed. It recognized us as Lumbees, but at the same time
terminated the tribe.
Finally, our veterans. Honor, duty and love of country are
qualities that our Lumbee veterans instill in our youth. My
father and uncle served in World War II and passed these
qualities down to me. I privately enlisted in the Army and
served in Vietnam. For my service in Vietnam I was awarded the
Purple Heart, the Bronze Star and the Air Medal.
We think it is time for Congress to finish what it started,
Mr. Chairman, in 1956. In the words of our good friend,
Congressman McIntyre, it is time for the discrimination to end
and recognition to begin.
Thank you, sir.
[The prepared statement of Mr. Goins follows:]
Statement of The Honorable James Ernest Goins, Chairman,
Lumbee Tribe of North Carolina, on H.R. 31
My name is James Ernest Goins and I am Chairman of the Lumbee
Tribe. I want to express the Tribe's appreciation to Chairman Rahall
for his support for our bill and the opportunity to testify at this
hearing in support of H.R. 31, a bill that would extend full federal
recognition to the Tribe. I also want to express the Tribe's deep
gratitude to Congressman McIntyre for his hard work and leadership on
this issue. Lumbee history will record his faithfulness to the Lumbee
cause.
As have generations of Lumbee leaders before me, I proudly appear
today in support of H.R. 31 and the federal recognition for the Tribe
that it would provide. Congress has deliberated on this issue for more
than one hundred twenty years now and, on the Tribe's behalf, I urge
the committee to report H.R. 31 favorably so that we can move one step
closer to justice and fair treatment for the Tribe.
The Lumbee desire for federal recognition
I am a direct lineal descendant of tribal leaders who first
petitioned the United States for federal recognition in 1888. This
petition to Congress was a request for federal recognition and
financial support for the education of Lumbee children. At the time,
the State of North Carolina had just established a separate school
system for the education of Lumbee children; at the same time, the
State approved two years funding for a normal school to train teachers
for our schools, but 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 normal school open with so little support from
the State. So, the Lumbee Tribe sought recognition from Congress for
the purpose of supporting the Tribe's normal school. The Congress
referred the request to the Department of the Interior and the
Department gave what was to become its stock response to the Lumbee
quest for recognition:
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 tribe.
This was a theme that we were to hear often from the federal
government--we know you are Indian and you are in need but we have too
little funding to assist you.
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
Indians, but each time the Department recommended against the bill,
mostly for fiscal reasons.
During the 1930s when my people were attempting to organize under
the Wheeler-Howard Act, my wife's grandfather helped raise money to
send our people to Washington. Their pleas met with the same results.
Dr. Swanton from the Bureau of Ethnology was sent to investigate our
origins and history. He concluded that the Lumbee people are
descendants of the Cheraw Indians. But the effort failed.
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
feeling,--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. Only 209 tribal members agreed to submit to these
tests, out of which 22 were eventually certified as half-bloods. This
effort eventually failed, too.
In the early 1950s, 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 on the same terms. In 1956, Congress did pass the Lumbee
Act, designating the Indians in Robeson and adjoining counties as
Lumbee Indian. 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 for special legislation began about twenty years
ago, after the Department of the Interior had 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 of the 1956
Lumbee Act added at the request of the Department of the Interior.
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 the
following question: What will the Department of the Interior learn that
its experts haven't already told them? Every time a bill was introduced
in Congress to recognize us, the Department studied our history and
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 study 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. When a federal judge ordered North Carolina to
disband its segregated schools, the Tribe lost its separate schools.
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, oldest documented Lumbee community located in the
historic Cheraw settlement. My wife is Diane Locklear Goins, a 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 a Lumbee educator at a predominantly
Lumbee school. My youngest daughter Jamie recently served as an
Ambassador with the Americans for Indian Opportunity's American Indian
Ambassador Program. All my sons-in-law are Lumbee Indians and grew up
in Lumbee communities in Robeson County.
My family, like other Lumbee families, takes pride in our community
and maintains a strong sense of tribalism. Because our communities are
composed of large extended families, our children are 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 attended all Indian churches. Growing up in
Prospect community, I attended Prospect United Methodist Church,
located immediately across form the Prospect School. The 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 the Lumbee people in
1900. This religious conference is composed solely 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 in 1885. Only a
rural country road separates 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 to decide who
attended Indian schools and who would be allowed to teach in these
schools. Teachers were selected based not only on qualification but
also on their moral character. As religious and school leaders, these
tribal leaders not only shaped our schools, churches, and 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 gave me the job of walking point through the jungles. 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 county in Word 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.
Our connection to the land we call home and to each other is
typical of Indian people. 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. We adopted a constitution with 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 rising under tribal law
among our 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.
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 call blood committees) had
authority to determine a child's eligibility to enroll. These
committees produce partial membership lists.
A few lists of tribal members can also 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. The censuses are excellent records because Indian
households are listed by order of visitation. So the censuses provide
of record of families that comprise our communities, e.g., Prospect,
Pembroke, Union Chapel, Saddletree, and Fairgrove. This collection of
documents--school and church records and federal Indian censuses--was
used to compile a base roll for the Lumbee Tribe.
As part of the Tribe's effort to write a petition for federal
recognition under the regulations, the Tribe initiated a formal
enrollment process. The Tribe reduced to writing the membership
criteria that it has always used informally and prepared a complete
list of its members. There are two membership criteria: first, the
person must prove descent from an ancestor on the base roll; second,
the person must maintain contact with the Tribe. 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 approximately 55,000 members.
Conclusion
The Lumbee Tribe believes it is time for Congress to finish what it
began in 1956 and enact Mr. McIntyre's recognition bill. The Lumbee
people have been patient and persistent in their quest for federal
recognition, but I can tell you that our people have had about enough.
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 a 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.R. 31.
______
The Chairman. Thank you.
Chief Adkins?
STATEMENT OF HON. STEPHEN R. ADKINS, CHIEF, CHICKAHOMINY TRIBE
ON BEHALF OF VIRGINIA INDIAN TRIBAL ALLIANCE FOR LIFE, CHARLES
COUNTY, VIRGINIA
Mr. Adkins. Thank you, Chairman Rahall, Ranking Member
Hastings and other distinguished Members of this Committee, for
having me here today to speak on House Bill 1385.
I would like to request that the written testimony from the
six tribes represented in this bill be introduced into the
record.
The Chairman. Without objection. The request is granted.
Mr. Adkins. Before I begin my remarks, Mr. Chairman, I must
acknowledge you and the House of Natural Resources Committee,
who heard testimony in H.R. 1294, carried the bill to the full
House and led the bill to its eventual passage by the U.S.
House of Representatives in May 2007.
Today we thank you for again picking up the mantle and
shepherding this true and just cause for the Eastern
Chickahominy, the Monacan, the Nansemond, the Upper Mattaponi,
the Rappahannock and my tribe, the Chickahominy, the tribes
named in H.R. 1385. Thanks to Congressman Jim Moran for
introducing this bill.
We are honored to be testifying here today alongside the
Governor of the Commonwealth of Virginia, Timothy Kaine, who,
in his inaugural address, pledged his strong support for
Federal recognition of these Virginia Indian tribes and has
continued his strong support throughout his tenure.
We are also pleased to testify along with Dr. Helen
Rountree, a renown anthropologist specializing in the heritage
of the Virginia Indian tribes.
Finally, let me acknowledge the leaders of the
aforementioned tribes whose compelling stories to a large
degree mirror my own.
Mr. Chairman, it saddens me that we have to appeal to the
legislative body of arguably the greatest country in the world,
a country noted worldwide as a champion of human rights, to
find redress to correct this wrong that Virginia Indians have
endured since the United States was formed, a country who in
its search to form a more perfect union systematically ignored
those very people who helped ensure the survival of the first
permanent English settlement at Jamestown.
Early in the relationship between the Virginia Indians and
the Colonists, it became very apparent that there was a need to
delineate a framework by which these two entities could live
together peacefully. In recognition of that need, the Treaty of
1614 was established between the Chickahominy Tribe and the
Colonists.
In the intervening years, several treaties were drawn
between England and the Virginia Indian nations, culminating in
the Treaty of 1677, which is referred to interchangeably as the
Treaty of Middle Plantation or the Articles of Peace. It is
noteworthy that those tribes listed in H.R. 1385 were in fact
signatories to the Treaty of 1677.
The Indian nations of Virginia never took up arms against
the United States, which perhaps explains why there was never a
treaty between the Indian nations of Virginia and the United
States. Without a treaty relationship, there was no official
relationship between the aforementioned entities.
To make matters worse for the Virginia Indian nations of
Virginia, the colonial government, through warfare and other
means and later the Commonwealth of Virginia through the power
of the pen, sought their elimination. The woes that plagued the
Indian nations of Virginia were systemic. Those woes were given
birth and perpetuated by a system that sought to deny the very
existence of the Indian nations of Virginia.
The documentary genocide that the Virginia Indians suffered
at the hands of Walter Plecker, who ruled over the Bureau of
Vital Statistics in Virginia from 1912 to 1946, gained full
momentum when the state's legislature enacted the Racial
Integrity Act in 1924. This Act included penalties for
assigning Indian names to Native infants or assigning the
designation Indian to birth certificates.
Although socially unacceptable to kill Indians outright,
Virginia Indians became fair game to Plecker as he led efforts
to eradicate all references to Virginia Indian nations on vital
records. This law stayed in effect until 1976 and caused many
of our tribal members to have to travel out of state in order
to be married as Indians.
This law also forced all segments of the population to be
registered in birth as white or colored. State law declared
there were no Indians in this state in 1924, and if you dared
to say differently you went to jail or worse.
In 1997, legislation was passed that required the
Commonwealth of Virginia to bear the cost of correcting the
vital records of the Virginia Indians. Unfortunately, this
legislation has not and cannot undo the damage done to my
ancestors who endured humiliation in venues as disparate as
trying to obtain marriage licenses or being inducted into the
armed forces as Indians.
The six tribes in this bill gained state recognition in the
Commonwealth of Virginia between 1983 and 1989. In 1999, we
came to Congress when we were advised by the Bureau of Indian
Affairs that many of us would not live long enough to see our
petitions go through the administrative process. By the way, we
have buried three of our Chiefs since then.
Actions taken by the Commonwealth of Virginia during the
20th century erased our history by altering records as part of
a systematic plan to deny our existence. This state action
distinguishes us from the other tribes in this country that
were protected from this blatant denial of Indian heritage and
identity.
As part of the Jamestown 400th anniversary commemoration,
these tribes traveled to England in 2006 telling the story of
Virginia's early history. The people of England have an
enduring respect and love for Pocahontas. As we worshipped at
St. George's Church, its congregation extended that same kind
of love and respect toward us, and to my amazement the attitude
of love and respect transcended the spiritual and emotional
service within the church and was extended to us in every venue
we visited. I believe our traveling to England and being
embraced by its citizenry and elected officials represented a
significant move toward reconciliation and healing.
A product of the research of the first permanent English
settlement at Jamestown was the revelation of what our
contributions had meant to its success. Honors from across the
Commonwealth of Virginia have been held in rapt attention as we
have shared our connection to England and our influence on the
development of the embryonic seeds of democracy which took root
in our homeland.
This is a proud story which deserves a happy ending, an
ending that acknowledges the sovereignty of these six Virginia
Indian nations. We must come full circle and be embraced by the
Congress of the United States of America.
I and those Chiefs here with me stand on the shoulders of
many others besides Powhatan and Pocahontas. We lament the
passing of nine out of 10 of our countrymen by the end of the
17th century. To be sure, some of those who perished did not
die by the sword. Some died from diseases alien to this land
and some from other causes. However, the decimation of our
ranks was tied directly to events that unfolded after the
settlers arrived in 1607.
When we commemorated Jamestown's anniversary in 2007, those
of Indian heritage in Virginia were reminded of that darker
side of 17th century history. As Chief of our tribe, we have
persevered in this process for one reason: We do not want our
families to let the legacy of Walter Plecker stand. We want the
assistance of Congress to give the Indian tribes in Virginia
their freedom, their freedom from a history that denied their
Indian identity.
Without acknowledgement of our identity, the harm of racism
becomes a dominant history. We want our children and the next
generation to have their Indian heritage honored and to move
past what we experience and our parents experience.
We, the leaders of the six Virginia Indian tribes, are
asking Congress to help us make history for the Indian people
of Virginia, a history that honors our ancestors who were there
at the beginning of this great country. We believe the Federal
recognition of the Indian tribes will make a difference that
goes beyond the stamp of recognition.
It will reconcile the history in this country between two
cultures in a way that honors our history of learning to live
together in peace. It will honor Natives that have served in
the military and who as a percentage of their population have
given the ultimate sacrifice at a rate higher than any other
racial group in the United States.
This is what we want for our people and for our nation. Our
visit to England in which we shared our culture and history,
described our contemporary lifestyles as both contributors to
the American way of life and aspirants to the American dream,
that has strengthened our resolve to obtain Federal
acknowledgement.
What would Federal acknowledgement mean in the daily lives
and the future of Virginia tribes? For one thing, it guarantees
our access to archeological endeavors on public lands and
rights-of-way and the ability to retrieve the bones of our
ancestors from Federal repositories. It would create a
government-to-government relationship between the tribes and
the Federal government.
For years the Commonwealth of Virginia did not care about
our story. Our public school curricula had scant mention of who
we are, so mainstream America knows little about what has
happened in those years between the 17th century and today. The
fact that we were so prominent in the early history and then so
callously denied our Indian heritage is a story that most don't
recognize.
The Commonwealth of Virginia has taken definitive actions
to right the wrongs inflicted upon its indigenous people and
stands with us today. In 1983, the Commonwealth of Virginia
established the Virginia Commission on Indians.
Governor Kaine has appointed Virginia Indians to boards,
commissions and also leadership positions within the state
agencies. He has ensured the involvement of Virginia Indians in
defining and developing the 2008 standards of learning, which
will influence the content of social studies textbooks to be
used in Virginia's public schools.
We believe it is time for the U.S. Congress to stand
alongside the Commonwealth of Virginia, to stand along the six
tribes named in H.R. 1385 and grant us the recognition we
deserve.
Chairman Rahall, we, the Chickahominy, the Eastern
Chickahominy, the Monacan, the Nansemond, the Upper Mattaponi
and the Rappahannock Tribes implore you to pass the Thomasina
E. Jordan Indian Tribes of Virginia Federal Recognition Act of
2009.
I would like to add that action by the church, the Papal
Bull 1452, gave Europeans the right to come in and pillage and
steal our lands, so perhaps it is time to go back to the Old
Testament and look at what Mordecai told Esther. He said
perhaps you were put in such a royal position as you are for
such a time as this.
Mr. Chairman, I believe that is why you are here today. I
thank you for your time and your patience in hearing this
testimony.
[The prepared statement of Chief Adkins follows:]
Statement of The Honorable Stephen R. Adkins, Chief,
Chickahominy Indian Tribe, on H.R. 1385
Thank you Chairman Rahall and other distinguished members of this
committee for inviting me here today to speak on House Bill 1385.
Before I begin my remarks I must acknowledge you, Chairman Rahall, and
the House Natural Resources Committee who heard testimony on H.R. 1294,
carried the bill to the full house and led the bill to its eventual
passage by the U.S. House of Representatives in May 2007. Today I thank
you for again picking up the mantle and shepherding this true and just
cause for the tribes named in H.R. 1385. The bill, introduced by
Congressman Jim Moran is titled the Thomasina E. Jordan Indian Tribes
of Virginia Federal Recognition Act of 2009. I am proud to appear
before this Congressional Committee today to speak on behalf of the six
Tribes named in H.R. 1385: the Eastern Chickahominy, the Monacan, the
Nansemond, the Upper Mattaponi, the Rappahannock, and my tribe, the
Chickahominy. I am honored to be testifying alongside His Excellency
the Governor of the Commonwealth of Virginia, Timothy Kaine, who in his
inaugural address pledged his strong support for Federal Recognition of
these Virginia Indian Tribes and whose strong support continues as
evidenced by his presence here today. I am also pleased to testify
along with Dr. Helen Rountree, a renowned anthropologist specializing
in the heritage of the Virginia Tribes, who worked on the petitions we
filed with the BIA and who has written several books on the Indians of
Virginia. Finally let me acknowledge the leaders of the aforementioned
tribes whose compelling stories to a large degree mirror my own.
It saddens me to my very core that we have to appeal to the
legislative body of arguably the greatest country in the free world; a
country noted worldwide as a champion of human rights, to find redress;
to correct a wrong Virginia Indians have endured since the United
States was formed. A country who in its search to form a more perfect
union systematically ignored those very people who helped ensure the
survival of the First Permanent English Settlement at Jamestown in what
is now the United States of America.
Early in the relationship between the Virginia Indian Nations and
the colonists it became very apparent that there was a need to
delineate a framework by which these entities could coexist. In
recognition of that need, the treaty of 1614 was established between
the Chickahominy Tribe and the colonists. In the intervening years
several treaties were drawn between England and the Virginia Indian
Nations, culminating in the treaty of 1677 called, interchangeably, the
treaty of Middle Plantation or the Articles of Peace. It is noteworthy
that those tribes listed in H.R. 1385 were signatories to the treaty of
1677.
The Indian Nations of Virginia never took up arms against the
United States which perhaps explains why there was never a treaty
between the Indian Nations of Virginia and the United States. Without a
treaty relationship there was no official relationship between the
aforementioned entities. To make matters worse for the Indian Nations
of Virginia the colonial government, through warfare and other means,
and later the Commonwealth of Virginia, through the power of the pen,
sought their elimination.
The woes that plagued the Indian Nations of Virginia were systemic.
These woes were given birth and perpetuated by a system that sought to
deny the very existence of the Indian Nations of Virginia. Things that
other tribes took for granted like giving Indian babies traditional
Indian names or ensuring proper racial designation on vital records
were denied to many Virginia Indians.
I have been asked why I do not have a traditional Indian name.
Quite simply my parents, as did many other native parents, weighed the
situation and decided giving me a traditional Indian name was not worth
the risk of going to jail. The documentary genocide the Virginia
Indians suffered at the hands of Walter Ashby Plecker, a rabid
separatist, who ruled over the Bureau of Vital Statistics in Virginia
for 34 years, from 1912 to 1946 was well documented in an Article
written by Peter Hardin of the Richmond Times Dispatch in 2000.
Although socially unacceptable to kill Indians outright, Virginia
Indians became fair game to Plecker as he led efforts to eradicate all
references to Indians on Vital Records. A practice that was supported
by the state's establishment when the eugenics movement was endorsed by
leading state universities and was further supported when the state's
legislature enacted the Racial Integrity Act in 1924. A law that stayed
in effect until 1967 and for several decades caused many of our parents
to have to travel to Washington D.C. or elsewhere, in order to be
married as Indians. This vile law forced all segments of the population
to be registered at birth in one of two categories, white or colored.
Our anthropologist says there is no other state that attacked Indian
identity as directly as the laws passed during that period of time in
Virginia. No other ethnic community's heritage was denied in this way.
Our state, by law, declared there were no Indians in the State in 1924,
and if you dared to say differently, you went to jail or worse. The
Racial Integrity Act stayed in effect for half of my life. My father
and his peers lived in the heart of the Plecker years and carried those
scars to their graves. When I approached my father and his peers
regarding our need for state or federal recognition they pushed back
very strongly. In unison they said. ``Let sleeping dogs lie and do not
rock the boat''. Their fears of reprisal against those Indian folks who
had risked marrying in Virginia and whose birth records accurately
reflected their identity outweighed their desire to openly pursue any
form of recognition. Those fears were not unfounded because the threat
of fines or jail time was very real to modern Virginia Indians.
Chairman Rahall, the story I just recounted to you is very painful and
I do not like to tell that story. Many of my people will not discuss
what I have shared with you but I felt you needed to understand recent
history opposite the romanticized, inaccurate accounts of 17th century
history.
In 1997 legislation was passed that required the Commonwealth of
Virginia to bear the costs of correcting the vital records of the
Virginia Indians. Unfortunately, while this legislation allows those of
the living generations to correct birth records, this legislation or
law has not and cannot undo the damage done by Plecker and his
associates to my ancestors who endured pain and humiliation in venues
as disparate as trying to obtain marriage licenses or being inducted
into the Armed Forces as Indian. The pain was the direct result of
distorted, altered, incorrect records. We are seeking recognition
through an act of Congress because actions taken by the Commonwealth of
Virginia during the 20th Century erased our history by altering key
documents as part of a systematic plan to deny our existence. This
state action separates us from the other tribes in this country that
were protected from this blatant denial of Indian heritage and
identity. We are seeking recognition through Congress because this
history of racism, in very recent times, intimidated the tribal people
in Virginia and prevented us from believing that the petition process
would understand or reconcile this state action with our heritage. We
feared the process would not be able to see beyond the corrupted
documentation that was designed to deny our Indian heritage. Many of
the elders in our community also feared, and for good reason, racial
backlash if they sought state or federal recognition.
Chairman Rahall, the Indian Nations of Virginia worked hand in hand
with the Federal Jamestown 400th Anniversary Commemoration Commission
and the Virginia Jamestown 2007 Committee to provide the world with an
accurate view of those significant events that marked the 17th century
in what is now known as the Commonwealth of Virginia.
These tribes traveled to England telling the story of Virginia's
early history. We visited St. Georges Church at Gravesend where
Pocahontas is entombed. The people of England respect and honor the
memory of Pocahontas. As we worshipped at St. Georges, its living
congregation gave us that same kind of respect and honor. But to my
utter amazement, this attitude of honor and respect transcended the
spiritual and emotional service within the church and was extended to
us in every venue we attended from Kent University, to Kent County
Council to the House of Commons and the House of Lords. We were treated
with dignity and respect at a level we have never experienced in our
homeland. The citizenry and the elected officials were amazed that we
are not officially recognized as Indian Tribes by the United States of
America. As we traveled across Virginia and throughout the U.S. we
found that people here shared the same amazement at our lack of federal
recognition. I believe our people traveling to England and being
embraced by its citizenry and elected officials represented a
significant move toward reconciliation and healing.
I wish there was time today to tell the full story of what has
happened to the Virginia Tribes since Pocahontas visited England and
the Court of Queen Ann. The story of Chief Powhatan and his daughter
Pocahontas is well known across this land. What about our story? For
years the Commonwealth of Virginia did not care about our story. Our
public school textbooks had scant mention of who we are. So, what do
you know or what does mainstream America know about what happened in
those years between the 17th century and today? The fact that we were
so prominent in early history and then so callously denied our Indian
heritage is the story that most don't want to remember or recognize. A
product of the research of the history of the first permanent English
Settlement at Jamestown was the revelation of what our contributions
meant to its success. Audiences across the Commonwealth of Virginia
have been held in rapt attention as we have shared our research. We
share our connection to England and our influence on the development of
the embryonic seeds of democracy which took root in our homeland. This
is a proud story which deserves a happy ending, an ending that
acknowledges the sovereignty of these six Virginia Indian Nations. We
must come full circle and be embraced by the Congress of the United
States of America.
I and those Chiefs here with me, stand on the shoulders of many
others besides Pocahontas and Powhatan. We lament the passing of nine
out of ten of our countrymen by the end of the 17th century. To be
sure, some of those who perished did not die by the sword; some died
from diseases alien to this land and from other causes. However, the
decimation of our ranks was tied directly to events that unfolded after
the settlers arrived in 1607. During this period cultures were trampled
upon and languages were cast aside. The native people who befriended
these strangers ultimately died at their very hands. When we
commemorated Jamestown's anniversary in 2007 and the birth of our
Nation, those of Indian heritage in Virginia were reminded of this
darker side of 17th century history.
Let me tell you how we got here today. The six tribes on this bill
gained State Recognition in the Commonwealth of Virginia between 1983
and1989. In 1997, Virginia passed the statute that acknowledged the
state action re the vital records of Virginia Indians, but it couldn't
fix the problem. The damage to our documented history had been done.
Although there were meager attempts to gain federal acknowledgement by
some of the tribes in the mid 20th century, our current sovereignty
movement began directly after the passage of the legislation
acknowledging the attack on our heritage. In 1999, we came to Congress
when we were advised by the BAR (Bureau of Acknowledgement and
Research) now OFA (Office of Federal Acknowledgement) that many of us
would not live long enough to see our petition go through the
administrative process. A prophecy that has come true. We have buried
three of our chiefs since then. Given the realities of the OFA and the
historical slights suffered by the Virginia Indian Tribes for the last
400 years, the six tribes referenced in H.R. 1385 feel that our
situation clearly distinguishes us as candidates for Congressional
Federal Recognition.
As Chief of my community, I have persevered in this process for one
reason. I do not want my family or my community to let the legacy of
Walter Plecker stand. I want the assistance of Congress to give the
Indian Communities in Virginia, their freedom from a history that
denied their Indian identity. Without acknowledgment of our identity,
the harm of racism is the dominant history. I want our children and the
next generation, to have their Indian Heritage honored and to move past
what we experienced and our parents experienced. We, the leaders of the
six Virginia Tribes, are asking Congress to help us make history for
the Indian people of Virginia, a history that honors our ancestors who
were there at the beginning of this great country.
We believe the Federal Recognition of the Virginia Indian Tribes
will make a difference that goes beyond the stamp of recognition. It
will reconcile the history, in this country, between two cultures in a
way that honors our story of learning to live together in peace and in
love. It will honor our Natives who have served in the military and
who, as a percentage of their population, have given the ultimate
sacrifice at a rate higher than any other racial group in the United
States. That is what we want for our people, and for our nation. Our
visit to England in which we shared our culture and history, described
our contemporary lifestyles as both contributors to the American way of
life and aspirants to the American Dream, has strengthened our resolve
to obtain federal acknowledgement. It has made us understand that we
deserve to be on a level playing field with the other 562 odd tribes
who are federally acknowledged. It has made us unwilling to accept
being discriminated against because of both a historical oversight and
the concerted efforts of our Commonwealth to deny to us our rightful
heritage.
What difference would Federal Recognition make in the daily lives
and in the future of the Virginia Tribes? It guarantees our access to
archaeological endeavors on public lands and rights of way and the
ability to retrieve the bones of our ancestors from federal
repositories. It would create a government to government relationship
between the tribes and the federal government. It would provide our
youth of tomorrow the assurance of their existence in the future. It
would mean that important medical and educational opportunities would
exist for the members of the tribes.
The Commonwealth of Virginia has taken definitive actions to right
the wrongs inflicted upon its indigenous peoples and stands with us
today. In 1983 the Commonwealth of Virginia established the Virginia
Commission on Indians which later became the Virginia Council on
Indians. Governor Kaine has appointed Virginia Indians to boards,
commissions and leadership positions within state agencies. He has
ensured the involvement of Virginia Indians in defining and developing
the framework for the standards of learning which will influence the
content of history and social studies textbooks to be used in
Virginia's public schools. We believe it is time for the United States
Congress to stand alongside the Commonwealth of Virginia and the Tribes
named in H.R. 1385 and grant us the Recognition we deserve.
Recognition acknowledges we were here first, we are still here, and
we have a unique position within the fabric of this nation. Recognition
now is about the future more so than it is about the past. The Virginia
Tribes have been here for almost 20,000 years and we hope to be here
another 20,000.
We, the Chickahominy, the Eastern Chickahominy, the Monacan, the
Nansemond, the Upper Mattaponi, and the Rappahannock Tribes implore you
to pass the Thomasina E. Jordan Indian Tribes of Virginia Federal
Recognition Act of 2009.
Thank you,
______
The Chairman. Thank you, Chief Adkins.
Chairman Danforth?
STATEMENT OF GERALD L. DANFORTH, RETIRED CHAIRMAN, ONEIDA TRIBE
OF WISCONSIN, ONEIDA, WISCONSIN
Mr. Danforth. Good afternoon, Chairman Rahall, Ranking
Member Hastings, Members of the Committee. My name is Gerald
Danforth, and I am an enrolled member of the Oneida Tribe of
Indians of Wisconsin.
I served two terms as the Oneida Tribal Chairman and
retired from that office in 2008. Prior to that I served four
years as a judicial officer for the Oneida Appeals Commission,
and I am a veteran of 30 years in the United States Navy,
including service in Vietnam and Desert Storm.
It is an honor to be here today to testify before the House
Resources Committee in support of H.R. 31, a bill that would
provide for the Federal recognition of the Lumbee Tribe of
North Carolina.
I first met Lumbee Indians while serving in the Navy
stationed in Charleston, South Carolina, in 1967. Since then I
served with Lumbee Indians from time to time throughout my
Naval career, and later on in that career I met and became good
friends with a Master Chief, David Locklear, who I knew to be a
Lumbee Indian. I didn't realize then, though, that Lumbee
Indians were a state recognized tribe and not a Federally
recognized tribe.
In the year since, however, while serving as Oneida Tribal
Chairman, I became much more knowledgeable about the Lumbee and
about its many attempts to become Federally recognized. I have
also come to know several Lumbees during my years of work in
Indian Country.
The Lumbee Tribe's attorney, Arlinda Locklear, who you will
hear from shortly, is also the Oneida Tribe's attorney in our
land claims in New York. Other Lumbees work in Indian Country
in other ways, as doctors, educators, in Federal agencies that
provide services to all Indian people.
The Indian Claims Commission has a Lumbee who served as
commissioner. The American Indian Policy Review Commission had
a Lumbee commissioner and a Lumbee attorney as a task force
member. So the Lumbees have been known throughout Indian
country for generations.
Now, this past February I was asked to facilitate
government-to-government discussions between the Lumbee Tribal
Council and other Indian tribes across and throughout Indian
country. I understand that there have been opposing points made
by certain other tribes, and I know at least today the
Cherokee, the Eastern Band Cherokee, are present, and I have
great respect for Eastern Band. I have visited Eastern Band
several times and have friends there as well. The Virginia
tribes are here and other Indian tribes across the country are
here.
So the line that I walk is a delicate line because I have
friends and relatives on both sides of this matter. So out of
respect for everybody, I will move forward with what I have to
say.
Those opposing points, as I have reviewed them, as I
understand them, and I don't think there are that many. I
believe that with a review of the facts most of those opposing
points are diminished, are removed. If not, they are mitigated
to a point where any opposition is minimal. The effect of
recognizing the Lumbee becomes very minimal if the full facts
are reviewed, because, as I understand some of the opposing
points, they are based on inaccurate information or incomplete
information.
I believe that the intertribal discussions that will occur
throughout this process will help the Lumbee Tribal Council
communicate with other tribes throughout the country in a way
that they have an opportunity to state the facts of their case.
I obviously agreed to assist, and I have been researching prior
testimonies of Lumbee recognition bills, studying Lumbee
history.
I recently spent four days in Robeson County, Lumbee
homeland, to observe firsthand and to speak to members of the
Lumbee community. During this four day visit I met the Tribal
Council, administrative staff, elders, veterans, ministers,
elementary and high school students and community members
generally. We stopped during this tour at Prospect Church,
where a group of approximately 20 ministers were having lunch,
having a lunch meeting, making plans for a tribal wide revival
for all the churches.
I have to say and emphasize I have never seen so many
religious leaders per capita in any community I have ever
visited. I couldn't get over that. But there was another
interesting thing that I recognized is that those leaders were
also members of the Tribal Council, business owners, educators
and other administrative. They were family leaders and vice
verse. As it turned out, the person who was chauffeuring me
around this tour was on his last stages of becoming one of the
religious leaders in the community. There were hundreds of
them.
I think that one of the other great leaders we probably all
know or have heard of from the Standing Rock Sioux. His name
was Dr. Vine Deloria. He said it best when he said in one of
his prior testimonies on behalf of Lumbee Federal recognition
what he observed was this: A traditional Indian community more
closely resembles what we find in Robeson County among the
Lumbees. Large, extended families who exert social and
political control over family members and who see their family
as part of an extended people.
Our tour there in Robeson County also included a historic
overview of the Lumbee and a presentation from the legal staff
that had charted Lumbee family genealogy from the mid 1700s to
present day.
A visit to one of the elementary schools and a high school
gave me the opportunity to see the Lumbee students in their
studies in the classroom, to see the young students as the
teacher gave them the signal to return from the playground as
they came running back, flush faced and ready to hit the books
again. It is the same picture that I observed in Oneida and in
many other--I should say any other--tribal school setting
throughout Indian Country.
At the conclusion of my visit to Robeson County, the
supportive testimony that I had read previously was made even
more clear and convincing to me now. What I saw while visiting
Lumbee brought to mind things I see in every Indian community,
and, like in other Indian communities, there are settlements
within the Lumbee community that are large, extended families.
Like in other Indian communities, there is broad knowledge
among members of the Lumbee tribe about their genealogies,
their family connections and their history. I heard these
discussions among the Lumbee people, young and old, over and
over again every place that we went.
Finally, as in other Indian communities, there are famous
former leaders who everybody knows and who everybody admires.
Among the Lumbees, in my mind, was this individual named Henry
Berry Lowry.
For these reasons that I have stated, there was no doubt in
my mind that I was in Indian Country when I was among the
Lumbee.
Now, while I can't speak on behalf of Indian Country on
this matter, my outreach and informal discussions that I have
had with tribal leaders from different parts of the country
suggest there is significant support for the Federal
recognition of the Lumbee. Many supporters are willing to
commit their support to writing. Some are quietly supporting.
Even some that I have talked to who I knew had opposed when I
explained the facts as I understood them I could see them
rethinking their position.
To my understanding, I think there are only a few points of
contention. I believe a visit to Lumbee territory will convince
any open-minded person that those points of contention are
based on myth and not actual reality.
Today the United States recognize, as has been previously
testified this morning, more than 560 Indian tribes, and each
of those tribes have their own story of relations with the
United States of land loss, of treaty violations, of
discrimination and of the struggle to survive. I have learned
that the Lumbee history is very much like that of other tribes,
of land loss, of discrimination and of a struggle to maintain
their independence.
The Lumbee have survived. Even without Federal recognition
they have survived. That said speaks volumes in my mind to the
governmental affairs that exist, however the design is, in
Robeson County. So there is really no excuse for not treating
the Lumbee Tribe like every other tribe in the country, and I
believe H.R. 31 would do just that.
Chairman Rahall, Members of the Committee, thank you for
treating this bill with the urgency that you have. Congressman
McIntyre and co-sponsors of this bill, thank you for
introducing this bill. Ya wago.
[The prepared statement of Mr. Danforth follows:]
Statement of Gerald L. Danforth, Tribal Member and retired Chairman,
Oneida Tribe of Indians of Wisconsin, on H.R. 31
My name is Gerald L Danforth and I'm an enrolled member of the
Oneida Tribe of Indians of Wisconsin. I served two terms as Oneida
Tribal Chairman; I retired from that office in 2008. Before that, I had
served four years as a Judicial Officer of the Oneida Appeals
Commission. I am also a veteran of thirty years in the United States
Navy. I retired from the Navy as Force Master Chief, the highest rank,
and one of only twelve, open to enlisted personnel.
It is an honor to be here today to testify before the U.S. House
Resources Committee in support of H.R. 31, a bill to provide for the
federal recognition of the Lumbee Tribe of North Carolina.
I first met Lumbee Indians while serving in the Navy, stationed in
Charleston, South Carolina in 1967. During my naval career I served
with Lumbee Indians from time-to-time, and later in my career I became
good friends with Master Chief David Locklear, whom I knew to be a
Lumbee Indian. I didn't realize then that the Lumbees were state
recognized, but not a federally recognized tribe. In the years since
however, while serving as Oneida Tribal Chairman, I became much more
knowledgeable about the Lumbee Tribe and of its many attempts to become
a federally recognized tribe.
I also came to know several Lumbees during my years of work in
Indian country. The Lumbee Tribe's attorney, Arlinda Locklear, is also
the Oneida Tribe's attorney in its land claims in New York. Other
Lumbees work in Indian country in other ways--as doctors, educators,
and in federal agencies that provides services to Indian people. The
Indian Claims Commission had a Lumbee who served as commissioner. And
the American Indian Policy Review Commission had a Lumbee commissioner
and a Lumbee attorney as a task force member. So the Lumbees have been
known throughout Indian country for generations.
This past February, I was asked to assist with facilitating
government-to-government discussions between the Lumbee Tribal Council
and other tribal leaders, pertaining to the Lumbee federal recognition.
I understand that there have been opposing points made by certain
tribes with regard to past Lumbee recognition bills for one reason or
another. I believe however, the majority of those opposing points are
based upon inaccurate or incomplete information. I find that a review
of the facts and ``the will to do what is right'' can resolve, and if
not, can certainly mitigate any seemingly negative effects the bill may
have on other tribes. With that in mind, I anticipate these inter-
tribal discussions will continue concurrently during this legislative
session.
I obviously agreed to assist, and I've been researching prior
testimonies of Lumbee recognition bills, studying Lumbee History, and I
recently spent four days in Robeson County, Lumbee homeland, to observe
first hand, and speak to members of the Lumbee Tribe.
During this four day visit I met the tribal council members,
administrative staff, elders, veterans, ministers, elementary and high
school students, and community members. I was invited to sit in on a
tribal council session--there are twenty-one council members, and
believe me, their debate mirrored that of the Oneida Council debates--I
felt right at home, and was pleased that I didn't have to Chair the
meeting.
In route to one of the Lumbee elementary schools, we made an
unplanned stop at Prospect Church, where a group of approximately
twenty ministers were having a lunch meeting to plan for a tribal wide
revival for all the churches. I have never seen as many religious
leaders per capita in any other community. Most interesting to me was
that it appeared that ministers were also business owners, tribal
government officials, tribal administrative staff persons, and family
leaders and vice-verse (later, several Lumbee officials would
corroborate this observation). Vine Deloria Jr. probably said it best
in his testimony in support of a prior Lumbee federal recognition bill,
``A traditional Indian community more closely resembles what we find in
Robeson County among the Lumbees, large extended families who exert
social and political control over family members, and who see their
family as a part of an extended people.''
The tour also included a historic overview of the Lumbee and a
presentation from the legal staff that had charted Lumbee family
genealogy from the mid-seventeen hundreds to present day. A visit to
one of the elementary schools and a high school gave me the opportunity
to see the Lumbee students in their classroom studies and flushed-faced
as they ran toward their teachers signal to return from the playground.
I would have seen the same faces at any tribal school throughout the
country.
At the conclusion of my visit to Robeson County, the supportive
testimony I had read was made even more clear and convincing to me now.
What I saw while visiting the Lumbee community brought to mind
things I see in every Indian community I visit. Like in other Indian
communities, there are settlements within the Lumbee community that are
large, extended families. As Dr. Deloria observed, this is the
traditional way Indian people live and govern themselves. That is
certainly the case within the Lumbee Tribe. Like in other Indian
communities, there is broad knowledge among members in the Lumbee Tribe
about their genealogies, family connections, and history. I heard these
same discussions among Lumbee people, young and old, wherever I went in
their community. Like in other Indian communities, there is little to
no separation between business-social affairs and political affairs. I
heard the same names over and over again while visiting the Lumbee
community, whether the discussion was business, church affairs, tribal
recognition, or politics in general. This is typical in Indian
communities. Finally, like in other Indian communities, there are
famous former leaders who stand out, who everyone knows, and who
everyone admires. The one who stands out in my mind among the Lumbees
is Henry Berry Lowrie. For all these reasons, there was no doubt in
mind that I was in an Indian community while I was among the Lumbee.
While I can't speak on behalf of Indian country on this matter, my
outreach and informal discussions with tribal leaders from different
parts of Indian country suggest that there is significant support for
federal recognition of the Lumbee. Many supporters will commit their
support to writing, while others, for their own reasons, are quietly
supporting. Even some of those who have opposed prior Lumbee
recognition bills, when given the facts surrounding the points of
contention, seem to be re-thinking their position. To my understanding,
there really are only a few points of contention. And a visit to the
Lumbee territory will convince any open minded person that those points
of contention are based on myth, not reality.
Today, the United States recognizes more than 560 Indian tribes.
Each of those tribes has its own story of relations with the United
States--of land loss, of treaty violations, of discrimination, of
struggle to survive. I have learned that the Lumbee history is very
like that of other tribes--of land loss, of discrimination, of struggle
to maintain their independence. And the Lumbee have done survived this
without federal recognition. There really is no excuse for not treating
the Lumbee Tribe like every other tribe in the country.
To conclude, the Lumbee Indians have been steadfast in their
determination to receive federal recognition longer than any other
Indian tribe that I am aware of--more than one-hundred years! They have
suffered discrimination to a degree far worse than one can imagine.
Today's Lumbee youth should not have to graduate from their
classroom only to discover a world of social and political injustice,
caused in large part by a precarious and unfair situation that denies
them to proclaim themselves fully as Indian--equal to other Indians,
with fair and equal treatment. It is time now to correct this problem.
Chairman Rahall, and Members of the Committee, thank you for
treating this bill with the urgency that you have. Congressman McIntyre
and Cosponsors, thank you for introducing this bill.
I'd be happy to answer any questions you may have.
______
The Chairman. Thank you.
Ms. Locklear?
STATEMENT OF ARLINDA F. LOCKLEAR, ESQUIRE, ATTORNEY FOR THE
LUMBEE TRIBE OF NORTH CAROLINA, WASHINGTON, D.C.
Ms. Locklear. Thank you, Mr. Chairman, Mr. Vice Chairman
and Members of the Committee. I appreciate the opportunity to
testify today.
I have submitted a written statement for the record, so at
this point in the proceeding I will just summarize a few of the
more important points as the record has developed at this
hearing.
First of all, I think it is safe to say that we could not
possibly overstate the level of frustration that the Lumbee
Tribe experiences when they hear the refrain the tribe is
attempting to bypass the process by which they would be
studied. That simply belies the history of the 120 year effort
that the Lumbee people have undertaken.
Some context in that regard is necessary. The Lumbee Tribe
first made its request for recognition to Congress in 1888. It
did so in the form of a petition that, as you heard from the
Chairman, his great, great grandfather also co-signed,
addressed to the Congress, directly seeking assistance to
provide funding from the Federal Indian Education Grant to the
Indian school that had just been created by the State of North
Carolina for the tribe. The school was created by the state,
but it was badly funded and the tribe needed assistance to
maintain its separate school system.
That petition was referred to the Department of the
Interior. In 1890, the Department of the Interior responded in
a letter directly to the tribe essentially apologizing, saying
we understand the need, but we have too few funds to provide
services for those presently recognized, so we are not able to
help you.
Starting in 1899, as a result of that initial failure, the
tribe sought direct recognition by Congress in a series of
special legislation. Between 1899 and 1936, there were roughly
a dozen bills introduced in Congress to achieve that purpose.
Now, it is important to note that each of those bills
followed on the heels of and in most cases were identical to
the language of the most recent state legislation that had just
recognized the tribe. That is an important point of history as
we go forward, particularly as we look at the 1956 Act.
All of those bills failed, though, again mostly because of
the cost of services. However, here is the important point
about process. In response to those bills, and often times at
the direction of Congress itself, the Bureau of Indian Affairs
dispatched a series of its own experts to study the tribe, its
community and its history. They began in 1912; the last one, as
you saw from the list that the Chairman provided, in 1937.
Just one of those I would like to highlight for the
Committee's consideration. In 1914, at the direction of
Congress, the Bureau of Indian Affairs dispatched a special
Indian agent, one of their own experts, to Robeson County to
study the tribe and examine its history. As a result, in 1914,
Special Agent McPherson submitted a 252 page report to Congress
which addressed those exact criteria, the condition of the
community itself and an exhaustive review--his words--of the
history of the tribe. That is process.
Mr. McPherson concluded in his report to Congress that
these are indeed Indian people descended from the Cheraw and
related coastal tribes from North Carolina, that they exhibited
a strong interconnected community, and he saw clear evidence of
political leadership from their ability to mobilize thousands
of members at the drop of a hat for the request of a beating.
Those are the criteria that establish an Indian tribe.
Those criteria were examined in 1912, and they were found to
exist. However, once again, largely because of the cost of
services, the Department opposed the bill. That is only one
example. It was done time and time again.
One other example that I will cite briefly was a 1934
statement by the Department of the Interior to Congress itself
in response again to one of the bills to recognize the tribe.
The Department reviewed the history of its own studies, of
its own experts I remind you, and concluded that these folks,
these Indian people in Robeson County, again descended for the
Cheraw and related Siouan speaking tribes, clearly existed as a
community and clearly showed evidence of leadership, but again
opposed recognition.
That goes to the process issue. The tribe has been
processed since 1888, and it is very frustrating to be told
that now there is a new process and it should be processed once
again.
The second point that we think is important for
consideration on this bill goes to the final Act that Congress
did pass with regard to the Lumbee, and that was the 1956 Act
of Congress. Finally, in response to this long series of Acts,
the Congress did act in 1956. However, as you well know, Mr.
Chairman and Mr. Vice Chairman, that was the height of the
termination era of Federal Indian policy.
The Congress was getting out of Indian business at the
time, not looking for more tribes to bring under Federal
jurisdiction. So even though the bill that was introduced
verbatim again to the most recent state bill to recognize the
tribe, intended to recognize the tribe, it was amended before
enactment to include classic termination language. So Congress
did a very odd thing in 1956. It recognized on the one hand and
simultaneously terminated on the other.
The third important point with regard to the need for
special legislation here is that Congress has done this to only
two other tribes in the history of Federal Indian policy; that
is, recognize and terminate at exactly the same point in time.
The closest analogy is Ysleta del Sur Pueblo of Texas. In
1968, Congress passed an Act which, according to its
legislative history, was modeled on the 1956 Lumbee Act. It did
the same thing for the Tiwas, as they were called at the time,
that the Congress had done to the Lumbees. They were a long-
time state recognize tribe. The Congress acknowledged them as
Indians and at the same time terminated them.
The Department concluded that because of the 1968 Tiwa Act
they were not eligible for the process, and the Department in
1987 expressed no opposition to recognition of that tribe by
legislation, and indeed that year Congress did recognize that
tribe.
So what Mr. McIntyre proposes in his bill is not a new
model. It is not a new mold. It is following through on
Congress' own precedent for dealing with this very small group
of tribes in this very peculiar situation. The Lumbee Tribe is
the last of those.
So by passing Mr. McIntyre's bill you bring to close and
finally repudiate all vestiges of the termination policy. You
do not open the floodgate that other tribes can walk through
because there are none others left.
Finally, if I may very briefly comment on a couple of the
proposed amendments that were suggested by the Department of
the Interior? It is correct that Mr. McIntyre's bill, the
language with regard to the land in the trust provision was
written before the Supreme Court's recent decision last month
in the Carcieri case that the Department witnesses referred to.
We have examined that language. We think that the language
probably is sufficient for purposes of Carcieri, and here is
why. The language of the bill, H.R. 31, specifically does
provide that fee land located in Robeson County for which the
tribe may submit applications under Part 151 will be treated as
on-reservation applications for that purpose.
If you look at the language of Part 151 of the regulation,
those regulations specifically cite the Indian Reorganization
Act, Sec. 465, as the authority for those regulations, so by
that relation back in effect the Congress is saying that the
Department has authority under Sec. 465 to process applications
for the Lumbee Tribe, and that is the precise issue that was
raised in Carcieri.
We would agree, though, that it needs to be perfectly
clear, perhaps through a combination of legislative history
language and maybe even some minor amendment to the language
itself. We could make sure that there is no question in that
regard.
Finally with respect to the point of the verification of
the tribal role. Last Congress, the Committee had before it
H.R. 65. H.R. 65 provided in its recognition of the tribe a
provision that authorized the Secretary to verify the roll and
provided a 12-month period for that verification to take place.
In its testimony then, last Congress on the bill, the
Department again raised the question of what does verification
mean and is 12 months sufficient time. In response to that
testimony from the Administration, this Committee at its markup
on the bill did make changes in the bill to accommodate those
concerns.
It expanded the period from 12 months to 24 months, and it
included language in the bill which specifically advised what
the purpose of the verification was, and that language says
that the Secretary's verification shall be limited to
confirming compliance with the membership criteria set out in
the tribe's own constitution.
That language is in the bill now. That language is in H.R.
31 because H.R. 31 is identical to the bill that was reported
out of Committee last Congress, so we believe that those
concerns by the Administration have been addressed.
Thank you, Mr. Chairman, and again we appreciate your
support and your leadership and also our dear friend,
Congressman McIntyre. We look forward to the movement of the
bill.
[The prepared statement of Ms. Locklear follows:]
Statement of Arlinda F. Locklear, Esquire, Attorney
for the Lumbee Tribe of North Carolina, on H.R. 31
It is my privilege to make this statement as counsel for the Lumbee
Tribe of North Carolina in support of H.R.31, a bill to extend full
federal recognition to the Tribe. I am special counsel to the Tribe on
the recognition effort. I am also an enrolled member of the Tribe.
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.
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. 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.
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. 1
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\1\ 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 well known 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, this effort also failed ultimately.
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Legislative history of the 1956 Lumbee Act
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. Senator Scott testified before a 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.'' 2
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\2\ The tribal population figure given by Senator Scott in his
statement 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. The figure was erroneous. According to a correction to the figure
published 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 1950 federal census
data.
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There are also excerpts from the legislative history of the 1956
act suggesting that Congress did not intend to make the Tribe eligible
for federal services, even without the amendment proposed by the
Secretary of the Interior. 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 tribal services. Mr. Carlyle
responded in the negative. Congressman Ford then stated that, ``[i]t
simply provides for the change of name,'' and Mr. Carlyle agreed. 102
Cong. Rec. 2900 (May 21, 1955). 3
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\3\ Because of the history of relations with the State, in which
the recognized tribal name was changed several times over the years,
the Tribe viewed the ``giving of a name'' as recognition. Even today,
tribal members who inquire about the status of the pending bill will
sometimes ask when Congress will give the Tribe its name.
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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 federal law. The Department of the
Interior has itself made this clear in the context of Congress'
deliberations in 1977 on legislation to restore the previously
recognized Siletz Tribe. In its comments on the bill, the Department
recommended that the 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. The 1956 Lumbee Act
should be similarly construed to recognize the Tribe, even though there
was no clear intent to provide federal Indian services. As the Siletz
legislative history shows, a tribe can be recognized but yet have no
trust relationship with the United States or eligibility for federal
services. Construed thusly, the 1956 Lumbee Act simultaneously
recognized and terminated the Tribe.
Administrative and judicial interpretation of the 1956 Lumbee Act
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. At a minimum, then, Congress took the first step
toward recognizing the Lumbee Tribe in 1956.
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(g). 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.
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. Most recently, the 110th Congress considered similar
bills, H.R. 65 and S. 660, to recognize the Lumbee Tribe. H.R. 65
passed the House of Representatives by 256 voting for and 128 voting
against passage. The House-passed bill was also reported out of the
Senate Committee on Indian Affairs favorably but failed on the Senate
floor.
H.R.31 is identical to H.R.65, reported out favorably by this
committee and passed by the House of Representatives last Congress.
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. 4 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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\4\ 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 because 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 (indeterminate period before active
consideration and 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.
Fourth, 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.
Finally, because of a recent development in the law, the
administrative process could not possible extend equal treatment to the
Lumbee Tribe as a federally recognized tribe. On February 24, 2009, the
Supreme Court announced its decision in Carcieri v. Salazar, Sl. Op.
(No. 07-526). The Supreme Court held that the Secretary of the Interior
lacked authority under the Indian Reorganization Act to take land into
trust for tribes that were not, as of 1934, a ``recognized tribe now
under Federal jurisdiction.'' In other words, if the Lumbee Tribe were
relegated to the administrative process and even if the Tribe were
ultimately successful there, the Secretary would not have authority to
place land into trust for the Tribe. Once again, the Tribe would be
treated as a second class tribe, without access to trust land and all
the consequences and opportunities that flow from that status.
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 supports the enactment of H.R.65,
comprehensive recognition legislation, not another half measure.
Major provisions of H.R.31
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;
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;
the direction that applications for trust status for fee
lands located in Robeson County shall be treated as an on-reservation
application, thereby solving the Carcieri problem;
the prohibition of gaming activity under the Indian
Gaming Regulatory Act or otherwise; 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 provisions address all aspects of a government-to-government
relationship between the United States and the Lumbee Tribe. Enactment
of H.R.31 would accomplish what the Lumbee Tribe has sought for one
hundred and twenty years--full federal recognition.
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.31.
______
The Chairman. Ms. Rountree?
STATEMENT OF DR. HELEN C. ROUNTREE, PH.D., PROFESSOR EMERITA OF
ANTHROPOLOGY, OLD DOMINION UNIVERSITY, HAMPTON, VIRGINIA
Ms. Rountree. Mr. Chairman, Members of the Committee and
guests, it is my honor to speak on behalf of these Virginia
Indian people with whom I have been working intensively since
1969.
I am Dr. Helen C. Rountree, Professor Emerita of
Anthropology at Old Dominion University in Norfolk, Virginia.
Having that university day job, so to speak, I have been able
to do my research entirely as a volunteer. I am not a hired gun
for the Indians I am testifying about today, and so far I have
produced seven University Press books on them.
The ancestors of the six tribes were native to Virginia
when Jamestown was founded. All were signatories in 1677 to a
treaty between the Virginia tribe and the King of England.
However, subsequent records about them were limited for nearly
two centuries. They became landless as non-Indian settlers
poured in, and by Virginia custom, not law, landless Indian
communities were considered to be outside the scope of the
treaty. That eliminated colonial level loss records being made
from them.
The treaty itself was with the King of England and is now
legally considered to be with the Commonwealth of Virginia, not
the United States, and Virginia, remember, is not interested in
landless tribes. These tribes therefore remained state Indians
in a state that ignored them. They were considered citizens of
their counties, but five of the six tribes lived in counties
whose courthouses burned, mainly during the Civil War.
When much more detailed U.S. Census records began to be
made in 1850, these people appear as enclaves and, in some U.S.
Censuses, specifically Indian ones. They are traceable as the
ancestors of the six Virginia tribes before you today.
The Office of Federal Acknowledgment just last year issued
changes to try to speed up the Federal recognition process, but
those changes do very little for the tribes of whom I speak.
Most of the changes are for tribes with a treaty and/or IRA
relationship with the Federal government, which these six
tribes do not have for the reasons already given.
The remaining change, moving up the starting date to 1789,
does not do much for them either. Aside from the problems
already mentioned with pre-Civil War records, there are
additional problems with state and local records that make
these Indian communities hard for a researcher like me to
track. It is as if the ever-growing legend of Pocahontas,
contrasted with the reality of 19th and 20th century Indian
people, made my fellow Anglo-Virginians ever less tolerant of
anything other than the legend.
Beginning after the Civil War and culminating with
Virginia's racial integrity law of 1924, Virginia became a
state committed to the proposition that there were only two
races, white and colored, leaving no room for Indians. Under
the 1924 law, anyone insisting on an Indian identity on an
official document could be sent to prison for a year. Several
people--members of these six tribes--were in fact imprisoned
for such insistence.
The campaign to eliminate Indians from the state was headed
by the state's Vital Statistics Bureau, which went so far as to
issue a circular with suspicious families' names listed county
by county with the demand that they be labeled colored. The
families were referred to, and I quote, as ``these mongrels.''
The circular was sent to all officials in charge of county
records. This is in 1943, by the way, not 1924. All officials
in charge of county records, all school superintendents and all
state-licensed health personnel who signed off on birth and
death certificates.
It is no wonder that these Indian communities became much
harder for researchers to find. Some of their members left the
state, keeping up their ties to home, but returning only during
the civil rights era when they no longer had to be, as one old-
timer said to me, scared like a rabbit.
But the communities hung together and hung on, as the
attached quick-reference chart will show. They still exist, and
they still say, as they have said all along, that they are
Indians, yet even now so thorough was the public relations
campaign against them for decades that they meet skepticism on
a daily basis.
The tribes I speak for today consulted a BIA representative
over a decade ago and were told that even if they submitted a
petition forthwith, they would not see a decision ``in your
lifetime,'' and this was said to people then in their forties.
The six tribes are not merely being impatient in wanting to
move faster than that. Their primary motive--this is my opinion
here. Their primary motive for seeking Federal recognition is
getting better access to health programs, which are badly
needed by their elders now.
Little schooling within Virginia was available to those
people when they were young, if, that is, they wanted to remain
Indians in the state. See the quick-reference chart which tells
you when schools for Indians were finally set up. Therefore,
their income level has suffered ever since, and in their old
age they are hurting badly.
The six tribes are not interested in remedying that fact
through gaming. In fact, they have waived their rights to
gaming if they are recognized. Instead, they hope to provide
better conditions for their people through Federal Indian
programs after recognition by the U.S. Congress.
I have been able to document that these people are Indian
tribes and that they have endured over three centuries of
injustice, some of the worst of it and by far the most public
of it being in the recent past. Without Federal recognition and
the aid springing from it, the injustice is ongoing.
I hope that you will accede to their request for
acknowledgment. Thank you.
[The prepared statement of Ms. Rountree follows:]
Statement of Helen C. Rountree, Ph.D., Professor Emerita of
Anthropology, Old Dominion University, Norfolk, Virginia
Mr. Chairman, members of the Committee, and guests: It is my honor
to speak on behalf of these Virginia Indian people, with whom I have
been working intensively since 1969. I am Dr. Helen C. Rountree,
Professor Emerita of Anthropology at Old Dominion University in
Norfolk, Virginia. Having that university ``day job,'' so to speak, I
have been able to do my research entirely as a volunteer; I am not a
``hired gun'' for the Indians I am testifying about today. And so far I
have produced seven university press books on them.
The ancestors of the six tribes were native to Virginia when
Jamestown was founded; all were signatories in 1677 to a treaty between
the Virginia tribes and the King of England. However, the subsequent
records about them were limited for nearly two centuries. They became
landless as non-Indian settlers poured in, and by Virginia custom (not
law) landless Indian communities were considered to be outside the
scope of the treaty. The treaty itself was with the King of England and
is now legally considered to be with the Commonwealth of Virginia, not
the United States. These tribes therefore remained ``state'' Indians in
a state that ignored them. They were considered citizens of their
counties, but five of the six tribes lived in counties whose
courthouses burned, mainly during the Civil War. When much more
detailed U.S. Census records began to be made in 1850, these people
appear as enclaves and, in some U.S. Censuses, specifically Indian
ones. They are traceable as the ancestors of the six Virginia tribes
before you today.
The Office of Federal Acknowledgment just last year issued changes
to try to speed up the federal recognition process, but those changes
do very little for the tribes of whom I speak. Most of the changes are
for tribes with a treaty and/or IRA relationship with the federal
government, which these six tribes do not have for the reasons already
given. The remaining change, moving up the starting date to 1789, does
not do much for them, either. Aside from the problems already mentioned
with pre-Civil War records, there are additional problems with state
and local records that make these Indian communities hard for a
researcher like me to track. It is as if the ever-growing legend of
Pocahontas, contrasted with the reality of 19th and 20th century Indian
people, made my fellow Anglo-Virginians ever less tolerant of anything
other than the legend.
Beginning after the Civil War and culminating with Virginia's
Racial Integrity Law of 1924, Virginia became a state committed to the
proposition that there were only two races, ``white'' and ``colored,''
leaving no room for Indians. Under the 1924 law, anyone insisting on an
Indian identity on an official document could be sent to prison for a
year. Several people--members of these six tribes--were, in fact,
imprisoned for such insistence. The campaign to eliminate Indians from
the state was headed by the state's Vital Statistics Bureau, which went
so far as to issue a circular with ``suspicious'' families' names
listed county by county, with the demand that they be labeled
``colored.'' The families were referred to (and I quote) as ``these
mongrels.'' The circular was sent to all officials in charge of county
records, all school superintendents, and all state-licensed health
personnel (who signed off on birth and death certificates). It is no
wonder that these Indian communities became much harder for researchers
to find. Some of their members left the state, keeping up their ties to
home but returning only during the Civil Rights era when they no longer
had to be, as one old-timer said to me, ``scared like a rabbit.'' But
the communities hung together and hung on, as the attached quick-
reference chart will show. They still exist, and they still say, as
they've said all along, that they're Indians. Yet even now, so thorough
was the public relations campaign against them for decades, they meet
skepticism on a daily basis.
The tribes I speak for today consulted a B.I.A. representative over
a decade ago and were told that even if they submitted a petition
forthwith, they would not see a decision ``in your lifetime'' (this was
said to people then in their 40s). The six tribes are not merely being
impatient, in wanting to move faster than that. Their primary motive
for seeking federal recognition is getting better access to health
programs, which are badly needed by their elders now. Little schooling
within Virginia was available to those people when they were young--if,
that is, they wanted to remain ``Indians'' in the state (see the quick-
reference chart). Therefore their income level has suffered ever since,
and in their old age they are hurting badly. The six tribes are not
interested in remedying that fact through gaming--in fact, they have
waived their rights to gaming, if they are recognized. Instead they
hope to provide better conditions for their people through federal
Indian programs, after recognition by the United States Congress.
I have been able to document that these people are Indian tribes
and that they have endured over three centuries of injustice, some of
the worst of it and by far the most public of it being in the recent
past. Without federal recognition and the aid springing from it, the
injustice is ongoing. I hope that you will accede to their request for
acknowledgment.
[GRAPHIC] [TIFF OMITTED] 48110.001
.eps__
The Chairman. Mr. Cook?
STATEMENT OF MICHAEL COOK, EXECUTIVE DIRECTOR, UNITED SOUTH AND
EASTERN TRIBES, INC., NASHVILLE, TENNESSEE
Mr. Cook. Sekoh. By way of further introduction, I want to
introduce myself as a member from the Mohawk community of
Akwesasne. I am the Executive Director of the United South and
Eastern Tribes, and I have the privilege of representing the
leadership of our 25 member tribes located from Maine to
Florida to Texas within the confines of 12 states.
On behalf of the leadership, I want to express our
appreciation, Mr. Chair, for the acceptance of our words that
will be used in consideration of this debate. Also, I want to
on behalf of our leadership acknowledge the work of you and
this Committee for the betterment of Indian Country as a whole.
Awah.
Also, I would like to briefly express to my fellow
panelists that my words today are not in any way intended to
disrespect your quests for the betterment of your communities,
but to offer another way.
USET opposes H.R. 31 legislation that would congressionally
acknowledge the Lumbees as an Indian tribe without going
through the administrative process. USET supports H.R. 839
legislation that would allow all Indian groups under the 1956
Lumbee Act to complete the Federal administrative process for
acknowledgement.
We strongly support the administrative process for Indian
groups to seek Federal recognition through the Office of
Federal Acknowledgment where the question can be examined in
detail by experts and according to standards that were
originally crafted after extensive review and consultation with
tribes by the American Indian Policy Review Commission.
Providing acknowledgement through the legislative process
could lead to unfair results. Federal legislative
acknowledgment of a group potentially gives unfair preferential
treatment to that group over all other groups who are in the
OFA process and waiting for a determination. H.R. 31 would
congressionally acknowledge the Lumbees as a tribe, but would
require all other similarly situated groups to go through the
OFA process.
Providing Federal acknowledgement to a group through
legislation invariably leads to inconsistent and subjective
results. Without the use of uniform procedures and criteria,
the process of determining Federal recognition as a tribe will
inevitably be based on emotion and politics. The OFA should
determine whether a group should be Federally recognized.
Why? Our position is that the procedures were a result of a
two-year study of the congressionally established American
Policy Review Commission and the input of tribes across the
country calling for standardized criteria in determining the
future relationships of tribes of the United States.
The OFA, not Congress, is staffed with experts such as
historians, anthropologists and genealogists whose jobs are to
determine the merits of the groups' claims that it is an Indian
tribe that has existed since historical times as a distinct
political entity. It is not headlines that there is opposition.
There is controversy around H.R. 31 and the Lumbees' quest for
the betterment of their communities. The OFA would dissipate
that cloud.
USET does not take a position on whether any particular
Indian group deserves Federal recognition. We have testified
many times in support of Indian groups going through the OFA
process while consistently opposing those same groups going
through the legislative process.
Keller George, an Oneida Indian Nation member and former
USET president of 12 years, testified in 2003, ``USET does not
believe that the Lumbee should get preferential treatment and
circumvent the administrative process within the Department of
the Interior. USET supports, however, legislation that would
clear the way for the Lumbee to get a shot at recognition
through the administrative process.''
The OFA process serves to protect the cultural identity of
established tribes, as well as the government-to-government
relationship that such tribes have with the United States. It
is because Federal recognition is so important that it must be
handled with unusual care.
Federal recognition is a formal act, creating a perpetual
government-to-government relationship between a tribe and the
United States in which the United States acknowledges the
sovereign status of a tribe. Federal recognition creates a
trustee relationship and fiduciary responsibilities on the part
of the United States. It enables tribes to gain access to vital
services needed to break the yoke of unemployment, low
education levels, substandard housing and poverty, which have
historically plagued our people.
Furthermore, Federally recognized tribes have inherent
sovereign powers recognized by the United States to exercise
criminal jurisdiction and civil jurisdiction within their
territory.
H.R. 839, would clear the way for the Lumbee to complete
the OFA process and have the merits of the Lumbee petition for
acknowledgement considered. A 1989 Interior solicitor's opinion
stopped that review process of the Lumbee petition.
If Congress believes that the OFA process is in need of
repair, then legislation should be developed to review and
strengthen the OFA procedures. In those circumstances where an
Indian entity cannot go through the legislative process, such
as with the Lumbees, Congress should enact legislation that
would allow them to go through the OFA process, not legislation
that would circumvent that process.
To the extent the OFA process needs to become more
efficient, Congress should ensure the OFA is appropriated the
dollars it needs to do its job more efficiently. It is
perpetually understaffed and underfunded. Also, Secretary
Salazar has publicly commented that he will ensure that the
process is reviewed and it works as well as possible.
The relationship that all Federally acknowledged tribes
have with the United States and the public perception of those
tribes is diminished if a group is afforded Federal
acknowledgement without serious technical review. Thus,
Congress should take the politics out of Federal
acknowledgement and allow the expert agency to do its job.
The USET board of directors urges the House Resources
Committee and Congress as a whole to reject H.R. 31.
Niawen.
[The prepared statement of Mr. Cook follows:]
Statement of Michael Cook, Executive Director,
The United South and Eastern Tribes (USET), on H.R. 31
USET SUPPORTS H.R. 839, LEGISLATION THAT WOULD ALLOW ALL INDIAN GROUPS
UNDER THE 1956 LUMBEE ACT TO COMPLETE THE FEDERAL ADMINISTRATIVE
PROCESS FOR ACKNOWLEDGMENT
On behalf of the United South and Eastern Tribes, an inter-Tribal
organization comprised of 25 federally recognized Tribes located in 12
states from Maine to Texas, we submit this testimony in support of H.R.
839, legislation that would allow all Indian groups that fall under the
1956 Lumbee Act to complete the administrative process at the Office of
Federal Acknowledgment (OFA) within the Department of the Interior.
USET opposes the H.R. 31, legislation that would congressionally
acknowledge the Lumbees as an Indian tribe without going through the
administrative process.
USET strongly supports the administrative process for Indian groups
to seek Federal recognition through the Office of Federal
Acknowledgment. Due to the complexity of determining whether an entity
is deserving of Federal recognition, although Congress has the
legislative authority to recognize a tribe, it has appropriately
shifted that responsibility to the agency level, where the question can
be examined in detail by experts and according to standards that were
originally crafted after extensive review and consultation with Tribes
by the American Indian Policy Review Commission.
To the extent that the OFA process needs to become more efficient,
Congress should ensure the OFA is appropriated the dollars it needs to
do its job more efficiently. It is perpetually understaffed and
underfunded. Also, Secretary Ken Salazar has committed to reviewing the
OFA process to ensure it works as well as possible, so the agency with
the expertise on these issues is reviewing the agency for
inefficiencies.
Providing Acknowledgement through the Legislative Process Will Lead
to Unfair Results. Federal legislative acknowledgment of a group gives
unfair preferential treatment to that group over all other groups who
are in the OFA process and waiting for a determination. In fact, H.R.
31 would congressionally acknowledge the Lumbees as a tribe but would
require all other similarly situated groups to go through the OFA
process. Moreover, providing federal acknowledgement to a group through
legislation invariably leads to inconsistent and subjective results.
Without the use of uniform procedures and criteria, the process of
determining federal recognition as a tribe will inevitably be based on
emotion and politics. The relationship that all federally acknowledged
tribes have with the United States and the public perception of those
tribes is diminished if a group is afforded federal acknowledgement
without serious technical review. Thus, Congress should take the
politics out of federal acknowledgement and allow the expert agency to
do its job.
The OFA, not Congress, Should Determine Whether a Group Should be
Federally Acknowledged. Established in 1978, the OFA has a procedure
and framework as well as the expertise for making federal
acknowledgement determinations. The OFA process should be used in
determining whether the Lumbee or any other group should be federally
acknowledged as an Indian tribe. The OFA procedures were the result of
a two-year study of the Congressionally-established American Indian
Policy Review Commission and the requests of tribes across the country
calling for standardized criteria in determining the future
relationships of tribes with the United States. The OFA, 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.
Other Tribes Oppose Congressional Acknowledgment. USET supports
legislation that would allow the Lumbees to complete the administrative
process but oppose congressional acknowledgement. In their efforts to
achieve federal acknowledgment, the Lumbees have self-identified
themselves over time as ``the Cherokee Indians of North Carolina,'' and
as ``Siouan,'' ``Croatan,'' and now ``Cheraw'' Indians. Finally, groups
within the Lumbee have opposed this legislation, claiming that the
history the Lumbee use to support its federal recognition efforts does
not belong to the Lumbee.
USET does not take a position on whether any particular Indian
group deserves Federal recognition. However, USET has testified many
times in support of Indian groups going through the OFA process, while
consistently opposing those same groups going through the legislative
process. Keller George, former USET President, testified in ``03,
``USET does not believe that the Lumbee should get preferential
treatment and circumvent the administrative process within the
Department of the Interior''; ``USET supports, however, legislation
that would clear the way for the Lumbee to get a shot at recognition
through the administration process.''
The OFA process serves to protect the cultural identity of
established Tribes, as well as the government-to-government
relationship that such Tribes have with the United States. Further, the
process assures that the Federal government, through the use of experts
in genealogy, history, and anthropology, can reach a determination in a
manner that is fully supportable by a well-developed and evaluated
record. This is an evaluation that agencies are well-positioned to
undertake, but for which the Congress is not equipped.
It is because Federal recognition is so important that it must be
handled with unusual care. Federal recognition is a formal act,
creating a perpetual government-to-government relationship between a
Tribe and the United States, in which the United States acknowledges
the sovereign status of a Tribe. Federal recognition also creates a
trustee relationship and fiduciary responsibilities on the part of the
United States. 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. Furthermore, Federally recognized
Tribes have inherent sovereign powers recognized by the United States
to exercise criminal jurisdiction and civil jurisdiction within their
territory.
H.R. 839, would clear the way for the Lumbee to complete the OFA
process and have the merits of the Lumbee petition for acknowledgement
considered. A 1989 Interior solicitor's opinion stopped the review
process of the Lumbee petition.
If Congress believes that the OFA process is in need of repair,
then legislation should be developed to review and strengthen the OFA
procedures. In those circumstances where an Indian entity cannot go
through the legislative process, such as with the Lumbees, Congress
should enact legislation that would allow them to go through the OFA
process, not legislation that would circumvent that process.
The USET Board of Directors urges the House Resources Committee and
the Congress as a whole to reject HR.31.
______
The Chairman. Thank you.
My first questions are for Chief Adkins and Ms. Rountree.
Much has been said here today about documents of Virginia
Indians either designating them as Indians or as colored.
Would you please explain this situation where some
documents the Department of the Interior has lists tribal
members as Indian?
Mr. Adkins. Mr. Chairman, within all the tribes you can
find vital records that show Indian. It is probably easy to
find 16 in any given tribe, but there may be 150 or 200 that
have the wrong documentation.
Those of us who were fortunate enough to have our records
correct lived under a cloud that the vital records gestapo
would come at any time and take us to jail, so even though we
were able to persevere and have those correct documents, we
lived under a cloud.
So, yes, it is true that there are some records that are
correct, and I would like to defer to Ms. Locklear because
there is a double-edged sword even if you produce that
documentation.
Ms. Locklear. If I may, Mr. Chairman, I think there is a
problem that goes beyond just the genealogical issue that the
Administration witnesses spoke about earlier.
Even if you can make the link to a historic Indian
community for purposes of what they call their Criterion E by
birth and death records, the suppression of Indian identity is
very problematic for other mandatory criteria in the process.
For example, Criterion A requires that there be since 1900
continuous identification of an Indian entity. The way OFA has
interpreted that provision, it requires an outside observer to
state every 10 years that there is an Indian entity with regard
to that petitioner, and the suppression of evidence that we
have heard described today would suggest a serious problem in
that regard because of the Plecker effort.
The Chairman. Dr. Rountree, do you wish to comment?
Ms. Rountree. I just have one little thing. The records
cited by the BIA people today all date from 1924 or before.
Plecker was only getting cranked up then.
After 1924 it became a blanket situation, and you see
throughout Virginia records nothing about Indians, partially
because whole tribes were going elsewhere to get married. They
wouldn't get married at home at all.
Mr. Adkins. Mr. Chairman, when my daughter was born in 1976
at Dungannon, Virginia, my wife and I obviously were there for
the admission records. I was leaving the office, and I had been
designated white. Now, I looked the same as I do today.
But what folks had said was we have to either designate
white or colored, so I guess I was supposed to feel relieved
that I was designated white, but I felt badly because I wasn't
designated the tribe that really I was. So even in 1976, nine
years after 1967, this still occurred.
The Chairman. Mr. Cook, several tribes who are members of
USET have either been restored or recognized by Congress. For
instance, Congress restored the Alabama Coushatta and Catawba
and recognized the Pequot Eastern Band of Cherokee and the
Micmac Indians, to name a few.
But in your testimony you state that Congress is ``not
equipped'' to make these determinations. Was Congress not
equipped to restore or recognize those USET member tribes?
Mr. Cook. The intent of the language, Mr. Chair, is not to
belittle Congress, but it is intended to put forth a process
that is fair and is able to have all sides being aired, to
submit their comments and concerns.
The USET board of directors has been consistent in its
position of encouraging tribes to go through the Federal
process. It is understood that every tribe is different. Every
tribe is unique and has special circumstances that at some
point the Congress will step in.
The Chairman. So does USET believe those tribes should have
their status rescinded so as to go through the administrative
process?
Mr. Cook. Absolutely not.
The Chairman. Thank you.
Mr. McIntyre. I am sorry, Mr. Chairman. I didn't hear his
answer. For the record, what was his answer to your question?
The Chairman. The last question was absolutely not.
Mr. McIntyre. OK.
The Chairman. Let me ask Chairman Goins. Your testimony
documents the 120 year effort of the Lumbee people to gain
Federal acknowledgement.
Despite the well documented history of the Lumbee, some
have questioned the Lumbee as a tribe because of different
names the tribe has been known over the years. Can you explain
the changes in the tribe's names throughout history?
Mr. Goins. Mr. Chairman, I am glad you asked me that
question because the question we should be asking is why would
the State of North Carolina dishonor the Lumbees by imposing
these names?
The State of North Carolina forced these names upon our
people. It wasn't until the 1953 legislation passed in Raleigh
that allowed the Lumbees to vote on their own name. This is
where all of these names come from, the Croatan, the Cherokees,
these other names. It wasn't the Lumbees. It was the state
legislature of Raleigh.
The Chairman. Thank you. Very interesting.
Chairman Danforth, let me again thank you for the 30 years
of service that you have given to our United States.
This, combined with your service as Chairman of the Oneida
Tribe of Wisconsin, shows that you have dedicated your life to
public service and the good of all Americans, and we do owe you
a debt of gratitude.
You state in your testimony that you have known Lumbee
Indians and the Lumbee Tribe since 1967. In your involvement
and interaction early on and into today, do you see these
people as an Indian tribe similar to your own? Are they a
distinct community similar to your tribe? Finally, do they have
a government that extends political influence over its members
similar to your tribe?
Mr. Danforth. I think they do in each case you stated
there, Mr. Chairman, and I will try to elaborate a little bit
on each one. If I could ask you to repeat those just one at a
time, please?
The Chairman. Sure. The first one is in your involvement
and interaction early on and continuing to today, do you see
these people and Indian tribes similar to your own?
Mr. Danforth. Very much so. As I mentioned in my testimony,
what I observed there in Robeson County were family plots where
this is where the Locklear family lives or this is where the
Dials are. They are also separated internal within their
community by religion.
You know, as in our case in Oneida our original reservation
is set up also in religious sectors where the first Christian
party was, the Orchard Party was, and so on and so forth. These
are where the families live. You know, you have King Lane and
names of families where settlements within our reservation
exist. So in that regard it is correct.
Also with regards to the testimony I gave of an observation
and how their religious leaders interfaced in other ways within
the tribe. Now, in my tribe we have very limited separation
between our social, our business and our tribal politics. Even
though we try to keep them separate, they are like Gumby. They
come right back like in the mix.
I see the same thing occurring in Robeson County. It is not
called the same thing perhaps, but it is very similar to what
is happening there, and I am probably struggling a bit in my
testimony of how to properly describe that.
I made reference to Dr. Deloria's observation that I think
was very--you know, I read his whole testimony, but that was a
part that really captured my thoughts of how that analogy was.
The Chairman. Thank you.
The gentleman from Washington, Mr. Hastings?
Mr. Hastings. Thank you, Mr. Chairman, and thank all of you
for your testimony. As one that has been gone from this
Committee for 12 years, I find the testimony and the issue
very, very, very, very interesting.
Mr. Goins, I just have one question based on figures of how
many members are in the Lumbee Tribe. Can you tell me when and
how the tribe's base roll was compiled and how the tribe
developed its enrollment criteria?
Mr. Goins. I am going to try to answer it, and then I would
relinquish it to Arlinda.
Our rolls goes back to what we call our base rolls, which
is the 1900 Census is what BIA requires and the 1910 Census. We
also look at church historical records for our tribal rolls.
Now, the rolls was developed, and I want to say, Arlinda,
in the late 1970's?
Ms. Locklear. Early 1980's.
Mr. Goins. Early 1980's when we started developing our
rolls. We call it the base rolls, but it is the 1900 Census
where they actually went in and documented the heads of the
households, if they are Indian, whatever. We used that. We used
the 1910 Census, and we also used historical church records.
Arlinda?
Mr. Hastings. Go ahead.
Ms. Locklear. That is correct. I would add that there are
two membership criteria for the tribe; not only proof of
descent from a member on the base roll, but also the
maintenance of community relations.
In other words, you need to basically be known by the
community. If you have moved away and not maintained community
ties, even if you have Lumbee ancestry you are not eligible for
membership.
Mr. Hastings. OK. Good. Thank you. I yield back.
The Chairman. The gentlelady from California?
Ms. Napolitano. Thank you, Mr. Chair.
Mr. Cook, what is the oldest case that you know of that has
waited as long as the Lumbees or longer?
Mr. Cook. I don't really have an answer for that.
Ms. Napolitano. There may not be one. Is that possible?
Mr. Cook. Certainly.
Ms. Napolitano. That is quite telling. Mr. Goins, there is
legislation that would allow the Lumbee Tribe to go through the
Federal acknowledgement process, and we know this is time
consuming, costly, requires thousands and thousands of pages of
documentation.
What would the impact be of this legislation that is going
through this acknowledgement process upon the Lumbee people?
Who would pay for it?
Mr. Goins. First of all, we couldn't do it. We just don't
have the funds available.
In fact, the money we raised so far has been from plate
sales, donations. That is how we come up with money. Basically
we couldn't afford it. We just don't have the funds.
Ms. Napolitano. Would that be an impediment then----
Mr. Goins. Yes, ma'am.
Ms. Napolitano.--for you to be able to go through the
process?
Mr. Goins. Yes. Yes. Yes. In fact, I would like to put on
the record our attorney is doing this pro bono. That is nice of
her, isn't it? Yes.
But we take a lot of donations. The tribal council, they
raise funds. We ask for a lot of volunteers. That would be a
big hill for us to climb just to even start the process would
be to fund it. You are correct.
Ms. Napolitano. OK. To Mr. Adkins, due to the historical
circumstances of the Virginia tribes it would be nearly
impossible to meet the criteria of the Federal acknowledgement
process.
But do you believe the individual Virginia tribes are
currently distinct communities that exert political influence
over the tribal members, and can you elaborate on that?
Mr. Adkins. To answer your question in a word, yes, they
are distinct tribal communities. As I have visited each tribe,
all these tribes have regular tribal meetings. They have their
base rolls established, and they are the governance that
permeates the whole community.
When I look at the Chickahominy Tribe, we meet every other
month with a full tribal meeting. Our board meets monthly, and
we have an annual meeting each year. Our fiscal year ends in
June. We have tribal elections every year for four year terms.
That may not represent all the tribes in Virginia, but they
have a political structure that is similar, and they do exert
governance over their communities.
Ms. Napolitano. When was the last time the Virginia tribes
met with the Office of Federal Acknowledgement, and what is the
current status of those tribes with FAP?
Mr. Adkins. I can't recall. It was probably three years ago
that I met with Lee Fleming with the Office of Federal
Acknowledgement.
I went to talk about our petition process, and a lot of the
conversation kept going back to the bill that we had in
Congress, which I continually tried to steer back to the
petition process because I wanted to equip myself to further
that process. So all of us do have petitions in the Office of
Federal Acknowledgement that are in varying degrees of
completion.
Now, I didn't get the last part of that question.
Ms. Napolitano. Well, what is the current status of those
tribes with FAP?
Mr. Adkins. Then I guess I did answer. They are in various
stages of completion.
Ms. Napolitano. OK.
Mr. Adkins. I think the onerous part of that for us too
would be the enormous amount of money that it would take to
fund this, which I think is a travesty in itself.
I have often said that were I to work for the Bureau of
Indian Affairs and someone walked through the door and said I
am here with my first stage of the Federal acknowledgement, I
would say that is my career. You know, I will be here 30 years
trying to help you out. That is kind of what we see with Bureau
of Indian Affairs.
Ms. Napolitano. At the time did they tell you they would
handle the actions of Walter Plecker to obliterate the records
of Virginia Indians? How did they say it to you, if they did?
Mr. Adkins. We had several technical review sessions in the
basement of our church, and we were advised that there were
resources within the Bureau of Indian Affairs to help us do the
technical study. I am not sure that those resources are there
because I continue to hear that the BIA is strapped for
resources to do that kind of work.
I don't know that the Plecker era was specifically
addressed. We were advised that there were ways to get around
the records that were destroyed in courthouses, but again I
don't have a lot of faith in that statement.
Ms. Napolitano. Mr. Chair, it is kind of hard to put a
finger on the reasoning why it has been--there are so many
reasons on the delay, or at least from what I have read, but
thank you for the time, and I thank the witnesses.
The Chairman. The gentleman from North Carolina, Mr.
McIntyre?
Mr. McIntyre. Thank you, Mr. Chairman. I am very pleased
with the testimony that we have been able to hear and the
answers that have been given to the questions and so I want to
thank you for allowing me to sit with the panel today and to
bring this bill before the Committee.
I want to thank those who have testified for presenting a
clear, cogent and convincing case with regard to moving the
recognition for the Lumbee Tribe ahead. I know it has been a
heart-rending situation to go through these years.
I know indeed that, as I stated earlier in my testimony,
that justice delayed is justice denied, and I think the last
word, as the Chairman said, that I have said previously is that
indeed, Mr. Chairman, it is time for the discrimination to end
and the recognition to begin.
God bless you, and thank you for your willingness to do
that.
The Chairman. Thank you, Mike.
Before we conclude, the Chair would just like to note and
to highly compliment those members of this panel--and I am not
going to mention names; we know who you are--whose tribes may
not be rolling in the cash and therefore could not really
afford this trip to Washington to testify, yet you took it upon
yourselves to raise the money through bake sales, other
community fundraising events, and brought yourselves up here
that way, as opposed to those you are in opposition to you, but
who may have flown their Lear jets into town to speak on the
other side. So I just wanted to compliment you for that.
If there are no further questions or comments, the
Committee on Natural Resources stands adjourned.
[Whereupon, at 1:40 p.m., the Committee was adjourned.]