S. HRG. 109–610

LUMBEE RECOGNITION ACT

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

ON

S. 660

TO PROVIDE FOR THE ACKNOWLEDGMENT OF THE LUMBEE TRIBE OF

NORTH CAROLINA

JULY 12, 2006

WASHINGTON, DC

(
LUMBEE RECOGNITION ACT
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28–696 PDF 2006

S. HRG. 109–610

LUMBEE RECOGNITION ACT

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

ON

S. 660

TO PROVIDE FOR THE ACKNOWLEDGMENT OF THE LUMBEE TRIBE OF

NORTH CAROLINA

JULY 12, 2006

WASHINGTON, DC

(
COMMITTEE ON INDIAN AFFAIRS

JOHN McCAIN, Arizona, Chairman

BYRON L. DORGAN, North Dakota, Vice Chairman

PETE V. DOMENICI, New Mexico

CRAIG THOMAS, Wyoming

GORDON SMITH, Oregon

LISA MURKOWSKI, Alaska

MICHAEL D. CRAPO, Idaho

RICHARD BURR, North Carolina

TOM COBURN, M.D., Oklahoma

DANIEL K. INOUYE, Hawaii

KENT CONRAD, North Dakota

DANIEL K. AKAKA, Hawaii

TIM JOHNSON, South Dakota

MARIA CANTWELL, Washington

JOHN TAHSUDA, III, Majority Staff Director

SARA G. GARLAND, Minority Staff Director

(II)
(III)

C O N T E N T S

Page

S. 660, text of ........................................................................................................... 3

Statements:

Burr, Hon. Richard, U.S. Senator from North Carolina ............................... 13

Campisi, Jack, anthropologist consultant, Lumbee Tribe of North Carolina ................................................................................................................. 28

Dole, Hon. Elizabeth, U.S. Senator from North Carolina ............................. 9

Dorgan, Hon. Byron L., U.S. Senator from North Dakota, vice chairman,

Committee on Indian Affairs ....................................................................... 9

Fleming, R. Lee, director, Office of federal Acknowledgment, Department

of the Interior ................................................................................................ 13

Goins, James Ernest, tribal chairman, Lumbee Tribe of North Carolina ... 24

Hicks, Michell, principal chief, Eastern band of Cherokees ......................... 26

McCain, Hon. John, U.S. Senator from Arizona, chairman, Committee

on Indian Affairs ........................................................................................... 1

McIntyre, Hon. Mike, U.S. Representative from North Carolina ................. 11

Locklear, Arlinda F., attorney, Lumbee Tribe, North Carolina .................... 24

Thomas, Hon. Craig, U.S. Senator from Wyoming ........................................ 9

APPENDIX

Prepared statements:

Campisi, Jack .................................................................................................... 37

Fleming, R. Lee ................................................................................................. 45

Goins, James Ernest (with attachment) ......................................................... 54

Hayes, Hon. Robin, U.S. Representative from North Carolina .................... 47

Hicks, Michell ................................................................................................... 74

Locklear, Arlinda F. ......................................................................................... 83

Additional material submitted for the record:

Easley, Mike, Governor, North Carolina, letter (with attachment) ............. 93

Summary of Concerns of Tuscarora Nation of Indians ................................. 48

Tuscarora History ............................................................................................. 53

Magnotta, Katherine, chairwoman, Tuscarora Nation of Indians, letters ... 100

Siouan Indians of Lumbee River, report 204 ................................................. 104

Public Law 570 ................................................................................................. 110

Hearing before the Committee on Interior and Insular Affairs, Subcommittee on Indian Affairs, July 22, 1955 ................................................ 111

Congressional Record, February 20, 1956 ...................................................... 134

United States Code, 84th Congress Second Session, 1956 ............................ 136

Brooks v. United States; Case No. 29-73 ........................................................ 139

The Croatan Indians of Robeson County, North Carolina, James E. Henderson, superintendent, Cherokee Nation, December 11, 1923 ................ 155

Probable Identity of the Croatan Indians, Dr. J.R. Swanton, Smithsonian

Institution, Washington, 1933 ..................................................................... 168

Indians of Robeson County, D’Arcy McNickle, Washington BIA, May 1,

1936 ................................................................................................................ 175

Baker Report, 1935 ........................................................................................... 189

Pearlman Report, November 1935 .................................................................. 280

Seltzer Report, 1936 ......................................................................................... 362

Indians of North Carolina, Report No. 677, September 19, 1914 ................. 389

(1)

LUMBEE RECOGNITION ACT

WEDNESDAY, JULY 12, 2006

U.S. SENATE,

COMMITTEE ON INDIAN AFFAIRS,

Washington, DC.

The committee met, pursuant to notice, at 9:30 a.m. in room 106,

Senate Dirksen Office Building, Hon. John McCain (chairman of

the committee) presiding.

Present: Senators McCain, Dorgan, Thomas, and Burr.

STATEMENT OF HON. JOHN MCCAIN, U.S. SENATOR FROM

ARIZONA, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

The CHAIRMAN. Good morning. The committee will come to order.

This morning the committee will receive testimony on S. 660, the

Lumbee Recognition Act, which was introduced by Senators Dole

and Burr. The Lumbees have pursued Federal recognition for their

community as an Indian tribe for over 100 years, and it appears

they have garnered significant support for those efforts within their

State. In 1956, Congress recognized the long history of the Lumbee

Tribe and individual Lumbees, but instead of welcoming the tribe

into the family of federally recognized tribes, in one statute Congress both recognized the tribe and terminated it.

For the record, my position has generally been to oppose Congressional recognition. There is an administrative process at the

Department of the Interior providing a rigorous review of groups

seeking to be recognized as Indian tribes, and I am usually in favor

of relying on the expertise of that process to establish the legitimacy of these groups. Nevertheless, I understand that the 1956

Lumbee Act was enacted during the termination period of the

1950’s, a time when many of our Indian tribes were not treated

fairly.

I also understand the Lumbee Tribe submitted a petition with

the Department of the Interior some years ago, and were told that

they are statutorily barred from that process by this 1956 act. The

frustration felt by this community in being unfairly caught in no

man’s land is also entirely understandable. S. 660 would address

this injustice by amending the 1956 act to provide full Federal recognition to the tribe. However, Congressional recognition of tribes

usually engenders some controversy, and this situation appears to

be no different.
2

The witnesses today will provide testimony both pro and con as

to the unique history of the Lumbee. I also welcome our colleagues

from the Senate and House who have sponsored this legislation.

Vice Chairman Dorgan.

[Text of S. 660 follows:]
3

1

II

109TH CONGRESS

1ST SESSION S. 660

To provide for the acknowledgment of the Lumbee Tribe of North Carolina,

and for other purposes.

IN THE SENATE OF THE UNITED STATES

MARCH 17, 2005

Mrs. DOLE (for herself and Mr. BURR) introduced the following bill; which

was read twice and referred to the Committee on Indian Affairs

A BILL

To provide for the acknowledgment of the Lumbee Tribe

of North Carolina, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Lumbee Recognition

5 Act’’.

6 SEC. 2. PREAMBLE.

7 The preamble to the Act of June 7, 1956 (70 Stat.

8 254), is amended—

9 (1) by striking ‘‘and’’ at the end of each clause;
4

2

•S 660 IS

1 (2) by striking ‘‘: Now, therefore,’’ at the end

2 of the last clause and inserting a semicolon; and

3 (3) by adding at the end the following:

‘‘Whereas the Lumbee Indians of Robeson and adjoining

counties in North Carolina are descendants of coastal

North Carolina Indian tribes, principally Cheraw, and

have remained a distinct Indian community since the

time of contact with white settlers;

‘‘Whereas since 1885 the State of North Carolina has recognized the Lumbee Indians as an Indian tribe;

‘‘Whereas in 1956 the Congress of the United States acknowledged the Lumbee Indians as an Indian tribe, but

withheld from the Lumbee Tribe the benefits, privileges

and immunities to which the Tribe and its members otherwise would have been entitled by virtue of the Tribe’s

status as a federally recognized Indian tribe; and

‘‘Whereas the Congress finds that the Lumbee Indians should

now be entitled to full Federal recognition of their status

as an Indian tribe and that the benefits, privileges and

immunities that accompany such status should be accorded to the Lumbee Tribe: Now, therefore,’’.

4 SEC. 3. FEDERAL RECOGNITION.

5 The Act of June 7, 1956 (70 Stat. 254), is

6 amended—

7 (1) by striking the last sentence of the first sec8 tion; and

9 (2) by striking section 2 and inserting the fol10 lowing:
5

3

•S 660 IS

1 ‘‘SEC. 2. RECOGNITION.

2 ‘‘(a) IN GENERAL.—Federal recognition is extended

3 to the Lumbee Tribe of North Carolina. All laws and regu4 lations of the United States of general application to Indi5 ans and Indian tribes shall apply to the Lumbee Tribe

6 of North Carolina and its members.

7 ‘‘(b) PETITION.—Notwithstanding the first section,

8 any group of Indians in Robeson and adjoining counties,

9 North Carolina, whose members are not enrolled in the

10 Lumbee Tribe of North Carolina as determined under sec11 tion 3(c), may petition under part 83 of title 25, Code

12 of Federal Regulations (or any successor regulation) for

13 acknowledgment of tribal existence.

14 ‘‘SEC. 3. ELIGIBILITY FOR SERVICES AND BENEFITS.

15 ‘‘(a) IN GENERAL.—

16 ‘‘(1) SERVICES AND BENEFITS.—The Lumbee

17 Tribe of North Carolina and its members shall be el18 igible for all services and benefits provided to Indi19 ans because of their status as members of a feder20 ally recognized Indian tribe.

21 ‘‘(2) RESIDENCE ON OR NEAR RESERVATION.—

22 For the purposes of the delivery of such services,

23 members of the Tribe residing in Robeson, Cum24 berland, Hoke, and Scotland counties in North Caro25 lina shall be deemed to be residing on or near an In26 dian reservation.
6

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•S 660 IS

1 ‘‘(b) DETERMINATION OF NEEDS AND BUDGET.—

2 ‘‘(1) IN GENERAL.—On verification by the Sec3 retary of the Interior of a tribal roll under sub4 section (c), the Secretary of the Interior and the

5 Secretary of Health and Human Services shall de6 velop, in consultation with the Lumbee Tribe of

7 North Carolina, a determination of needs and budg8 et to provide the services to which members of the

9 Tribe are eligible.

10 ‘‘(2) INCLUSION IN BUDGET REQUEST.—The

11 Secretary of the Interior and the Secretary of

12 Health and Human Services shall each submit a

13 written statement of those needs and a budget with

14 the first budget request submitted to Congress after

15 the fiscal year in which the tribal roll is verified.

16 ‘‘(c) TRIBAL ROLL.—

17 ‘‘(1) IN GENERAL.—For purposes of the deliv18 ery of Federal services, the tribal roll in effect on

19 the date of enactment of this section shall, subject

20 to verification by the Secretary of the Interior, de21 fine the service population of the Tribe.

22 ‘‘(2) VERIFICATION.—The Secretary’s verifica23 tion shall be limited to confirming compliance with

24 the membership criteria set out in the Tribe’s con25 stitution adopted on November 11, 2000, which ver-
7

5

•S 660 IS

1 ification shall be completed not less than 1 year

2 after the date of enactment of this section.

3 ‘‘SEC. 4. FEE LAND.

4 ‘‘Fee land that the Tribe seeks to convey to the

5 United States to be held in trust shall be treated by the

6 Secretary of the Interior as on-reservation trust acquisi7 tions under part 151 of title 25 Code of Federal Regula8 tions (or any successor regulation) if the land is located

9 within Robeson County, North Carolina.

10 ‘‘SEC. 5. STATE JURISDICTION.

11 ‘‘(a) IN GENERAL.—The State of North Carolina

12 shall exercise jurisdiction over—

13 ‘‘(1) all criminal offenses that are committed

14 on; and

15 ‘‘(2) all civil actions that arise on;

16 land located within the state of North Carolina that is

17 owned by, or held in trust by the United States for, the

18 Lumbee Tribe of North Carolina, or any dependent Indian

19 community of the Lumbee Tribe of North Carolina.

20 ‘‘(b) TRANSFER.—

21 ‘‘(1) IN GENERAL.—The Secretary of the Inte22 rior may accept on behalf of the United States, after

23 consulting with the Attorney General of the United

24 States, any transfer by the State of North Carolina

25 to the United States of any portion of the jurisdic-
8

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•S 660 IS

1 tion of the State of North Carolina described in

2 paragraph (1) under an agreement between the

3 Lumbee Tribe and the State of North Carolina.

4 ‘‘(2) EFFECTIVE DATE.—A transfer of jurisdic5 tion under paragraph (1) shall not take effect until

6 2 years after the effective date of the agreement.

7 ‘‘(c) EFFECT OF SECTION.—This section shall not af8 fect the application of section 109 of the Indian Child Wel9 fare Act of 1978 (25 U.S.C. 1919).

10 ‘‘SEC. 6. AUTHORIZATION OF APPROPRIATIONS.

11 ‘‘There are authorized to be appropriated such sums

12 as are necessary to carry out this Act.’’.

Æ
9

STATEMENT OF HON. BYRON L. DORGAN, U.S. SENATOR FROM

NORTH DAKOTA, VICE CHAIRMAN, COMMITTEE ON INDIAN

AFFAIRS

Senator DORGAN. Mr. Chairman, thank you very much.

When reading the briefing material for this hearing, I asked for

a time line to be prepared for me. So over 3 pages came to me with

a time line, starting back in the early 1700’s, and it goes on and

on and on. This is a very unusual, very interesting and in some

ways controversial issue. I am interested in learning as much as

I can from this hearing, as much as is available. We want to know

about the Lumbee Tribe and its history and what it has been confronted with with respect to the 1956 act and other related issues.

So we recognize this is a controversial issue. We think the best

way to address it is to have a hearing, have all the sides come and

present testimony. We are very appreciative that many of you have

done so today. And I welcome our colleagues as well.

The CHAIRMAN. Senator Thomas.

STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM

WYOMING

Senator THOMAS. Thank you, Mr. Chairman. I don’t have a statement, really. I appreciate your having this hearing. However, there

was some talk about bringing this to the floor directly, and I think

it should properly have a hearing, and I appreciate that. Thank

you.

The CHAIRMAN. Thank you very much, Senator.

We now would like to welcome our dear friend and colleague, the

Honorable Elizabeth Dole, and our friend from the House of Representatives, the Honorable Mike McIntyre. Welcome, Senator

Dole, and thanks for being here.

STATEMENT OF HON. ELIZABETH DOLE, U.S. SENATOR FROM

NORTH CAROLINA

Senator DOLE. Thank you, Mr. Chairman.

Mr. Chairman, Mr. Vice Chairman, thank you very much for

holding this important hearing today. Senator Thomas, Senator

Burr, delighted to be with you and to have an opportunity to be

with you and to have an opportunity to express my deepest thanks

to each of you for your leadership on so many issues affecting Native Americans.

We are here this morning to discuss tribal recognition. The

Lumbee Tribe of North Carolina has waited, Mr. Chairman, more

than 100 years for full Federal recognition and 50 years in order

to right a wrong that denied them the benefits granted to every

other recognized tribe. I introduced the legislation we are considering today, the Lumbee Recognition Act, because I deeply believe

that it is the right thing to do. In fact, it was the very first bill

that I introduced as a new member of the U.S. Senate.

With more than 50,000 members, the Lumbee Tribe is the largest east of the Mississippi River, as well as the largest non-federally recognized tribe in America. Joining us today are Lumbee

Chairman Jimmy Goins and other members of the Lumbee Tribe

who have journeyed here to make their case yet once again.
10

As many of you will remember, this committee held a hearing on

the Lumbee Recognition Act on September 17, 2003, the very same

day that Hurricane Isabel was bearing down on North Carolina

and moving up the East Coast. Undeterred, members of the

Lumbee Tribe traveled in the face of that powerful storm, determined to make it to their Senate hearing.

It is this resolve of the Lumbees, even after years of struggles

and disappointments, that inspires me to take up this fight alongside them and to advocate for the recognition they rightfully deserve. I welcome the support of my good friend, Senator Richard

Burr, who has joined me in introducing the Lumbee Recognition

Act. And I greatly appreciate the hard work Congressman Mike

McIntyre is doing in the House on this issue. I thank you both for

the opportunity to join together today in this effort.

In addition, I would like to note the endorsement, Mr. Chairman,

of North Carolina Governor Mike Easley, who wrote last week to

this committee to express his strong support for Lumbee recognition. Mr. Chairman, I request that the Governor’s comments be included in the record.

The CHAIRMAN. Without objection, so ordered.

[Referenced information appears in appendix.]

Senator DOLE. For more than a century, the Lumbees have been

recognized as American Indians. North Carolina formally recognized the tribe in 1885, and 3 years later, in 1888, the tribe began

what has become a very long quest for recognition and assistance

from the Federal Government. Over the years, many bills were introduced in Congress to provide the Lumbees with Federal recognition. But these bills were never acted upon or were passed by only

one chamber.

Finally, in 1956, Congress passed the Lumbee Act. But there was

a caveat: The Lumbees were denied the full benefits that every

other federally recognized tribe received. Refusing to accept this

partial nod to their legitimacy and their proud heritage, the

Lumbees and their allies in Congress have been unrelenting in the

request for what the tribe deserves: To be treated by the Federal

Government like every other recognized tribe.

There are some who argue that the Lumbee should be required

to go through the Bureau of Indian Affairs [BIA], rather than

through legislation. However, the Lumbee Act of 1956 actually prohibits the tribe from going through the BIA process. As the law

now stands, the Lumbee Tribe can only be recognized by an act of

Congress. Just one other tribe, the Tiwas of Texas, face a similarly

unfair situation, following the passage of a comparable bill in 1965.

But in 1987, Congress enacted special legislation to recognize

them. This makes the Lumbees the only tribe in the country still

trapped in this legal limbo and ineligible for the administrative acknowledgment process because of an earlier act of Congress.

The BIA process is reserved for tribes whose legitimacy must be

established. As we know, that is certainly not the case with the

Lumbees. Their legitimacy has been established time and time

again. There have been numerous studies by the Department of the

Interior, beginning as early as 1913, then again in 1914, and yet

again in 1933. Each time, it has been determined that the Lumbees

are indeed an Indian tribe, descended from the historic Cheraw In-
11

dians. There is no need to waste the tribe’s or the Government’s

time and money again.

Let me also underscore, it has been documented by GAO that

getting through the BIA process can be arduous, to say the least,

and lengthy. A 2001 GAO report revealed it can take up to 15

years to resolve petitions for recognition. And a 2005 follow-up report underscored that even with some improvements to the BIA

process, it would still take years for BIA to work through its current backlog of recognition petitions and even longer to consider

new petitions. It is clear that even if the Lumbee could legally go

through BIA, this would only impose yet another lengthy delay on

this tribe.

Over the last several years, I have had many opportunities to

visit with the Lumbees. One occasion in particular stands out in

my mind, a 2003-rally in Robeson County with my good friend,

Congressman McIntyre. This rally brought together the entire community, uniting people of all ages, all races, all backgrounds for a

common goal: Getting the Lumbee Indians the full recognition and

benefits they deserve.

In the last Congress, this committee unanimously approved the

Lumbee Recognition Act. I urge you to once again report this bill

out of the committee as expeditiously as possible. Simply put, this

is about fairness. It is about righting a wrong and allowing future

generations of Lumbees to benefit from the recognition for which

their ancestors have fought tirelessly.

Following Congressman McIntyre, this committee will hear testimony from several other distinguished panelists, including Chairman Goins, a dear friend and determined advocate for his tribe.

And Arlinda Locklear, a very talented attorney and nationally recognized expert on Indian tribes. In 1984, Arlinda, a member of the

Lumbee Tribe, became the first Native American woman to appear

before the U.S. Supreme Court.

Dr. Jack Campisi will testify once again. He is a professor at

Wellesley College and an expert on tribal and Lumbee issues. Dr.

Campisi has actually lived among the Lumbee in Robeson County

while conducting his research.

In closing, let me thank you again, Mr. Chairman, Mr. Vice

Chairman, for holding this important hearing. And I thank you for

the privilege of presenting my heart-felt views on the issue of fairness for the Lumbee people. Thank you.

The CHAIRMAN. Thank you very much, Senator Dole.

Congressman McIntyre, welcome.

STATEMENT OF HON. MIKE MCINTYRE, U.S. REPRESENTATIVE

FROM NORTH CAROLINA

Mr. MCINTYRE. Thank you, Senator McCain, good to be with you.

In addition to Governor Easley’s remarks that Senator Dole

pointed out, we would like to have in the record and we would like

to ask unanimous consent to submit the remarks of Congressman

Robin Hayes, who was an original cosponsor of this bill in the U.S.

House.

The CHAIRMAN. Without objection, so ordered.

[Prepared statement of Mr. Hayes appears in appendix.]

Mr. MCINTYRE. Thank you, Senator.
12

Mr. Chairman and members of the committee, thank you for this

opportunity to testify before you today regarding Federal recognition for the Lumbee Indians. And a special thanks to my colleagues, Senators Dole and Senator Burr, for their leadership and

their work on this important effort.

In the late 1500’s, when English ships landed on the shores at

Roanoke Island on the North Carolina Coast, the Englishmen discovered Native Americans. Included among those Native Americans

were both the Cheraw and Pee Dee Indians, who are direct ancestors of the Lumbee Tribe. Later, in 1888, the Lumbees made their

first effort at Federal recognition. For at least 500 years, Lumbee

Indians have been inhabitants of this land. And for over one-half

the time that our country has been in existence, 119 of the 230

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 own U.S. Government.

Mr. Chairman, the time for Lumbee recognition has come. It was

Congressional action that put the Lumbees in this situation in

1956, and it will take Congressional action to resolve it. As my

friend, Senator Dole, pointed out, we have a direct precedent, the

Tiwa Tribe of Texas, who was in a similar situation and that was

resolved by Congress, leaving the Lumbees as the only tribe in this

unresolved position.

Mr. Chairman and members of the panel, I was born and reared

in Robeson County, North Carolina, the primary home of the

Lumbee people. I go home there every weekend, and I have the

high honor of representing approximately 40,000 Lumbees who live

in my home county. In fact, there are more Lumbees in Robeson

County than any other racial or ethnic group. The Lumbee Indians,

many of whom, Mr. Chairman, are here in the audience with us

today and traveled throughout yesterday and the night to be here,

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 in our society are numerous and endless. From medicine and law to business and banking, from the farms and factories to the schools and churches, from

government, military, and community service, to entertainment

and athletic accomplishments, the Lumbees have made tremendous

contributions to our county, our State, and indeed, our Nation.

In fact, in my home county, the former sheriff and the current

clerk of court, registrar of deeds, chairman of the county commissioners, superintendent of the public schools, and the representative in the State legislature of the area where I live, as well as two

of our district court judges and one of our superior court judges, are

all Lumbee Indians, obviously engendering great respect in our

local community and throughout our region.

Mr. Chairman, those contributions are being recognized by our

colleagues. In the U.S. House, through the support of H.R. 21, legislation that I introduced on the day that we were sworn into the

Congress of this session, they have supported the opportunity to

grant Lumbees Federal recognition. I am pleased to report to the

Senate Indian Affairs Committee that 211 members of the U.S.
13

House have cosponsored this recognition. These cosponsors come

from different parts of the country and from both political parties.

But they all agree that the time for recognition has come.

Lumbee contributions are also being recognized back home by

both the public and private sector, from city councils to county commissions, from the chamber of commerce to 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 the

U.S. Congress not to delay any more on this issue. Justice delayed

is justice denied. As you will hear from the next panel, the evidence

is clear, cogent and convincing. It is time to say yes, yes to dignity

and respect, yes to fundamental fairness, yes to decency, yes to

honor, yes to Federal recognition. It is time for discrimination to

end and recognition to begin.

Thank you again for this opportunity to testify. I look forward to

working with you and the committee for this long overdue recognition. May God grant that justice will finally be done. With your

help, I am confident it will.

[Prepared statement of Mr. McIntyre appears in appendix.]

The CHAIRMAN. Thank you both very much. We appreciate your

taking the time to appear before the committee, and we will look

forward to hearing the other witnesses. Thank you very much.

Our next panel is R. Lee Fleming, director, Office of Federal Acknowledgment, Department of the Interior. Before we begin with

Mr. Fleming, I note that Senator Burr is here. Would you have an

opening statement or comment, Senator Burr?

STATEMENT OF HON. RICHARD BURR, U.S. SENATOR FROM

NORTH CAROLINA

Senator BURR. Mr. Chairman, thank you.

After the testimony from my colleagues, Senator Dole and Congressman McIntyre, I think everything has been said. But I would

like to take this opportunity to urge my colleagues on this dias that

they concentrate on two words that they heard: Equity and fairness. I believe that is at the root of why this hearing is being held,

why Senator Dole has been so passionate at pursuing a legislative

remedy. It is to achieve equity and fairness. And I believe that if

you look at the history of this issue in detail, you will find that this

Government has not met that threshold as it relates to this issue.

I thank the Chair.

The CHAIRMAN. Thank you very much, Senator Burr.

Mr. Fleming, welcome. Please proceed.

STATEMENT OF R. LEE FLEMING, DIRECTOR, OFFICE OF FEDERAL ACKNOWLEDGMENT, DEPARTMENT OF THE INTERIOR

Mr. FLEMING. Good morning, Mr. Chairman and members of the

committee. My name is Lee Fleming, and I am the director of the

Office of Federal Acknowledgment at the Department of the Interior.

Groups seeking to be acknowledged as Indian tribes are reviewed

through the office that I direct, and I am here today to provide the

Administration’s testimony on S. 660, the Lumbee Recognition Act.
14

The acknowledgment of the continued tribal existence of another

sovereign is one of the most solemn and important responsibilities

delegated to the Secretary of the Interior, which the Department

administers through its acknowledgment regulations at 25 C.F.R.

Part 83. Federal acknowledgment of tribal status enables Indian

tribes to participate in Federal programs and services and establishes a government-to-government relationship between the

United States and the Indian tribe. Acknowledgment carries with

it certain immunities and privileges which may include exemptions

from State and local jurisdiction and the ability of newly acknowledged Indian tribes to undertake unique economic opportunities.

Under the Department’s acknowledgment regulations, petitioning

groups must demonstrate that they meet each of the seven mandatory criteria. The petitioner must first, demonstrate that it has

been identified as an American Indian entity on a substantially

continuous basis since 1900; second, 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;

third, demonstrate that it has maintained political influence or authority over its members as an autonomous entity from historical

times until the present; fourth, provide a copy of the group’s

present governing document, including its membership criteria;

fifth, 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; sixth, 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 last, seventh, demonstrate that neither the

petitioner nor its members are the subject of Congressional legislation that has expressly terminated or forbidden the Federal relationship.

The Department recognizes that under the U.S. 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 of the information available before recognition is granted. That is why the Department of the Interior supports a transparent recognition process

that requires groups to go through the acknowledgment process.

The Department’s regulations provide a deliberative, uniform

mechanism to review and consider groups seeking Indian tribal

status. Notwithstanding that preference, the Department recognizes that some legislation is needed, given the unique status of

certain Indians in North Carolina.

In 1956, Congress designated Indians then residing in Robeson

and adjoining counties of North Carolina as the Lumbee Indians of

North Carolina. 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
15

were therefore precluded from consideration for Federal acknowledgment under the administrative process. Because of the 1956 act,

legislation is necessary for the Lumbee Indians to be afforded the

opportunity for tribal status under the Department’s regulations.

The Department would welcome the opportunity to assist the Congress in drafting such legislation.

If Congress elects to bypass the regulatory process in favor of legislative recognition of the Lumbee in a manner granting full sovereign rights, then the Department makes the following comments

on S. 660: S. 660 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 from Robeson and adjoining counties. These groups may overlap with each other in governing bodies, membership and ancestry.

In addition, we have identified over 80 names of groups that derive from these counties and all are affected by the 1956 Lumbee

Act. Some of these groups also claim to be the Lumbee Tribe.

Therefore, we recommend Congress clarify the Lumbee group that

would be granted recognition under this bill.

One of the benefits or privileges available to recognized Indian

tribes is the ability to conduct gaming under the Indian Gaming

Regulatory Act. Under S. 660, any fee land that the Lumbee seeks

to convey to the United States to be held in trust shall be considered an off reservation trust acquisition if the land is located within Robeson County, North Carolina, and gaming will be allowed on

those lands under the provisions of IGRA.

Under S. 660, 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. This bill, however,

does not address the State’s civil regulatory jurisdiction which includes jurisdiction over gaming, zoning and environmental regulations.

We are concerned with the provision requiring the Secretary,

within 1 year, to verify the Lumbee membership and then to develop a determination of needs and budget to provide Federal services to the Lumbee group’s eligible members. In our experience,

verifying a tribal role is an extremely involved and complex undertaking that can take several years to resolve with much smaller

tribes. Moreover, S. 660 is silent as to the meaning of verification

for inclusion on the Lumbee group’s membership list.

In addition, S. 660 may raise a constitutional problem by purporting to require the President to submit annually to the Congress

as part of his annual budget submission a budget that is recommended by the head of an executive department for program

services and benefits to the Lumbee. Under the recommendations

clause of the U.S. Constitution, the President submits for the consideration of Congress such measures as the President judges necessary and expedient.

Should Congress choose not to enact S. 660, the Department feels

that at a minimum, Congress should amend the 1956 act to afford
16

the Lumbee Indians the opportunity to petition for tribal status

under the Department’s acknowledgment regulations. This concludes my prepared statement. I would be happy to answer any

questions the committee may have.

[Prepared statement of Mr. Fleming appears in appendix.]

The CHAIRMAN. Thank you very much, Mr. Fleming.

If legislation were enacted to repeal the 1956 act, so that the

Lumbees can proceed through the normal process, can you estimate

how many years it would take to make a final decision on a

Lumbee petition from the date of enactment until final agency action?

Mr. FLEMING. Currently, the Office has a workload of 9 groups

on active and 10 groups that are ready. We have 4 teams that work

on these decisions; 19 divided by 4 gives you an idea of the number

of years that it will take to eliminate the workload. So we are looking at at least a wait of 14 into 19 is 4 years, plus, before we begin

an actual review of the Lumbee group’s petition.

The CHAIRMAN. You mentioned that there are other entities out

there that under this bill would be somehow addressed, is that correct? In other words, according to your statement, as I understand

it, you say we have identified over 80 names of groups that derive

from these counties and are affected by the 1956 act. Some of these

groups claim to be the Lumbee Tribe. Elaborate a little bit on that.

Mr. FLEMING. We have six formal petitioning groups from Robeson and adjoining counties. Under the 1956 act that Congress enacted, any individuals or groups from Robeson and adjoining counties is designated as Lumbee Indian. So when a petitioning group

submits a petition from Robeson and adjoining counties, then we

know that the 1956 act prohibits us from moving forward in reviewing those petitions.

Six groups, 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 East of the Mountains, and the

Tuscarora Nation of Indians of the Carolinas, those are groups that

are in Robeson and adjoining counties that are affected by the

Lumbee Act.

In our administrative correspondence files, we have identified the

names of other groups that have sent in correspondence claiming

that they are an Indian tribe located in Robeson and adjoining

counties. And as I mentioned in my testimony, that 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.

The CHAIRMAN. How do you address that issue, given, if we

passed S. 660, how would we address these multiple conflicting

names and groups?

Mr. FLEMING. This is the complex issue. Under our regulations,

we have a thorough review of the membership lists. We have a review of the ancestries and we would know who is who. If this is

enacted, sure enough, the Lumbee Tribe of North Carolina would

be acknowledged. But then you would have a lot of these groups

saying, perhaps our group was acknowledged. So there needs to be
17

a clearer definition of who is actually being acknowledged in the

bill.

The CHAIRMAN. And you also mentioned that the legislation requires that within 1 year there would have to be, 40,000 people

would be listed and authenticated, have access to the Lumbee’s

tribal roll. Do you think you could accomplish that in 1 year?

Mr. FLEMING. Honestly, I do not think it could be accomplished

in 1 year. At one hand, 34,000 members was a figure that was provided. The 2000 Federal census has 51,913 members. And then we

heard earlier around 53,000 members. Even with smaller tribes, we

have estimated that it would take 3 to 4 years to verify the membership rolls. Because the membership rolls are representative of

the enrolment files of each and every individual of the tribe.

And so it is critical that it be well defined and in the case where

we have so many other groups that may be involved, we have to

review their records and a clear definition has to be made. Because

ultimately there are programs and services that are going to be afforded to the individuals who are members of a federally-recognized

tribe.

The CHAIRMAN. And the issue of, with recognition of course

would come the normal process if the tribe decided to engage in Indian gaming, is that true?

Mr. FLEMING. That is right. There is a regulatory process for Indian gaming.

The CHAIRMAN. Thank you very much, Mr. Fleming.

Senator Dorgan.

Senator DORGAN. Mr. Fleming, thank you very much.

The groups that you now say or you now recognize are prohibited

from petitioning would all be groups considered part of the Lumbee

Tribe, is that correct? I mean, you have named disparate groups,

or maybe not disparate groups, but they all think that they are a

tribe. All of them would be prohibited at this point, as I understand

you, from seeking to petition for tribal recognition?

Mr. FLEMING. They would be prohibited from being reviewed

under our acknowledgment regulations.

Senator DORGAN. So whatever that universe is, that is what you

describe to be the Lumbee Tribe?

Mr. FLEMING. That is correct.

Senator DORGAN. But

Mr. FLEMING. The potential. The potential.

Senator DORGAN. The definition of that universe is not very clear

at this point.

Mr. FLEMING. The 1956 act was not clear. But it was clear in

that individuals located in Robeson and adjoining counties are considered Lumbee individuals.

Senator DORGAN. Mr. Fleming, in the briefing that I had read

last evening from the staff, it said that between 1899 and 1956,

there were a number of attempts made to provide Federal recognition for the Lumbees. The Congressional hearings were held, the

Department of the Interior investigated prepared reports in 1912,

1914, and 1933. And the summation of all of that indicated a belief

that the Lumbee tribal group or Cherokee Indians of Robeson

County, as they were known, were probably descended from an historic Indian tribe. However, the Department of the Interior also in-
18

dicated an inability to establish with absolute certainty with which

historic Indian tribe the group was affiliated.

Have you gone back and reviewed the attempts in 1912, 1914,

and 1933 to seek recognition? And that was at a time prior to the

1956 act when they were not prohibited from seeking recognition.

Have you reviewed that at all and have any understanding of what

difficulties were encountered then relative to what you would encounter now?

Mr. FLEMING. Yes, Senator Dorgan; I have looked at the previous

bills and reports. And there have been approximately 26 bills introduced since 1899. These bills and the associated reports have provided possible historical tribes and there are quite a number of

them. I do have a list of the different names of historical tribes

that have appeared in these bills, as well as the associated reports.

Senator DORGAN. Mr. Fleming, I am really inquiring more about

the Department of the Interior investigations that occurred as a result of the Lumbees back at that point, prior to 1956, on several

occasions seeking recognition through a process that would have

been available to them. Have you reviewed the Interior Department’s evaluations and investigations at that point?

Mr. FLEMING. Yes; I have.

Senator DORGAN. What is your conclusion on that?

Mr. FLEMING. I would say that a lot of the previous reports were

identifying historical tribes that may be associated with the

Lumbee. One report indicated that they descend from the Cherokee, another report from the Cheraw, another report from the Croatan. One report included a whole group of different historical

tribes, such as the Eno, the Hattaras, the Keowee, the Shakori.

Even John R. Swanton, who is a renowned anthropologist, in a

1946 report for the Bureau of American 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 Waxhaw. There is a

whole number of possibilities. But in his report, he felt that there

was a strong connection perhaps to the Cheraw or the Keowee.

Senator DORGAN. Just a couple of other brief questions. If recognized, would this be one of the larger Indian tribes in the country,

in your opinion?

Mr. FLEMING. It would be one of the larger Indian tribes in the

United States.

Senator DORGAN. And if recognized, prior to recognition, with respect to the issue of gaming, I assume there are two issues here,

first, is the ability to engage in a compact for gaming, and the second, is the ability to access for tribal members the Indian health

service and housing and other things that are available to recognized tribes. Fee land that would be purchased prior to recognition

in any part of that county could be turned over to the Federal Government to be held in trust, and then that land would be a part

of the gaming opportunities, provided that it would be acceptable

in a compact with other officials, would that be correct?

Mr. FLEMING. That is my understanding.

Senator DORGAN. Mr. Chairman, I thank Mr. Fleming for his

background. It was very helpful.

The CHAIRMAN. Senator Thomas.
19

Senator THOMAS. Thank you, Mr. Chairman.

You know, this is kind of confusing. Apparently this tribe is very

old, 100 years, I think she said something about that. And then it

went through the 1956 thing, that is 50 years ago. And maybe you

touched on this, but I still don’t understand. There have been lots

of tribes that go through lots of problems and get listed and so on.

What has been unique and peculiar about this? Why hasn’t this

gone through the regular process?

Mr. FLEMING. It is because of the 1956——

Senator THOMAS. Well, what about before that? Didn’t they ever

try before that?

Mr. FLEMING. Yes; there are considerable bills that have been

submitted to Congress prior to 1956, the first being in 1899. And

as you had heard earlier, even North Carolina had acknowledged

the Croatan Indians in——

Senator THOMAS. But Wyoming didn’t recognize the Arapahos.

What is unique about this whole thing? Why isn’t this done like everyone else?

Mr. FLEMING. I think the uniqueness is the lack of pinning down

the historical tribe. And as you heard, there were quite a number

of possibilities. You even heard that there was contact with the

early colonists, as early as 1585. But from 1585 to 1885, 300 years,

there is a considerable period of time where evidence would be

needed to fully understand who this group was and is.

Senator THOMAS. So you still can’t identify this as a tribe, is that

right, based on what you know now?

Mr. FLEMING. We have not been able to review the evidence to

come out with a determination.

Senator THOMAS. And would you be able to do that, given the opportunity?

Mr. FLEMING. If the 1956 act is amended to allow the thorough

review, we would be able to come out with a proposed finding,

share that finding with all parties concerned, invite public comment and then review those comments and then eventually come

out with a final determination.

Senator THOMAS. I see. So did you say there has just been one

tribe authorized by Congressional action, such as is being asked for

here?

Mr. FLEMING. There have been other tribes that have had Congressional recognition. And we can provide you a list of all the

tribes.

Senator THOMAS. Do you mean they have not gone through the

process that you are talking about?

Mr. FLEMING. There have been a few, yes.

Senator THOMAS. What has been the basis for that?

Mr. FLEMING. Some of them have been involved in Indian land

settlement claims and as a result, they were recognized by Congress as Indian tribes.

The CHAIRMAN. When was the last time there was legislation

such as this passed, Mr. Fleming?

Mr. FLEMING. I believe it was in the Omnibus Bill. It was the

Shawnee, which is located in Oklahoma. And that was in 2000, I

believe, December 2000.

Senator THOMAS. But that was a land controversy, is that right?
20

Mr. FLEMING. In that case, it was multi-complex, the Shawnee

were a group that was incorporated in with the Cherokee Nation.

There were previous treaties involved that had grouped the historical Shawnee with the historical Cherokee. In order for it to be recognized outside the Cherokee Nation, then that legislation was introduced.

Senator THOMAS. I see. Okay. Thank you very much, Mr. Chairman. This is a confusing thing, to say the least.

The CHAIRMAN. Thank you, Senator Thomas.

Senator Burr.

Senator BURR. Thank you, Mr. Chairman.

I was just looking at the chart of the tribes that have been recognized since 1960, either by the process or by Congressional recognition. I didn’t have time to count them all. I think there are more

that have been recognized by Congressional recognition than by the

administrative process. Mr. Fleming, I would ask you to supply for

the committee the precise numbers in every category.

And let me try to clarify Senator Thomas’ question. There were

a number of folks that were caught in the 1956 act, recognized and

then in the same act, their ability to go through a formal process

taken away. Who, other than the Lumbees, are still waiting to

have that resolved?

Mr. FLEMING. There are several groups, several tribes that were

terminated during that period of time where there was the national

policy that Congress held and that affected a great number of

tribes in California and Oregon and other parts of the country. A

good number of those tribes have been restored. In fact, in 1994,

Congress passed the Federally Recognized Indian Tribe List Act,

which repudiated the termination policy, and also had a statement

that it would put a priority on restoring a terminated tribe.

Congress has the authority to terminate a tribe, and Congress

has the authority to restore that tribe. So if a tribe had been terminated by Congress, then only Congress may restore that tribe.

There are still a few that have not yet been restored, either in California or Washington.

Senator BURR. Let me restate that. Any tribe that Congress

chooses to terminate only Congress can re-recognize that tribe, is

that what you said?

Mr. FLEMING. Restore, correct.

Senator BURR. Okay. I think that is important for my colleagues

up here to understand why we have been asked to be involved. Is

it not the case that other tribes that were caught in the 1956 termination having in fact been Congressionally recognized?

Mr. FLEMING. A good number have been restored.

Senator BURR. Okay. Let me go, if I could, to sort of the BIA criteria, if one were to go that route. The BIA considers from historical times until present. What is historical times?

Mr. FLEMING. Historical times is first sustained contact with the

Europeans.

Senator BURR. Considering that most tribes in the United States

don’t have or didn’t keep documented evidence of having existed,

political influence, going out of the criteria down the list, from historical times until present, how many tribes that were recognized
21

before we had a BIA process would be recognized under the criteria

established today?

Mr. FLEMING. There are 561 federally recognized tribes. Each of

these tribes have unique histories. They come from various parts

of the country. There are records that are available on the Federal

level, the State level, the county level, the local level, the tribal

level or group level. On all of those levels, there is tremendous evidence that can be researched and found for this process. And we

do have a lot of groups that have been successful in documenting

the histories.

Of the 561 federally recognized tribes, I would venture to say

they would all be able to demonstrate meeting all the seven mandatory criteria.

Senator BURR. All the seven criteria. So for Senator Thomas, and

I don’t even know if he has tribes, I assume that he does, where

the U.S. Government didn’t go to until several years after this

country was created, how do they prove a historical political influence when the U.S. Government didn’t go there?

Mr. FLEMING. There are a lot of colonial records that are available. You have documents that will demonstrate that there were

leaders of these tribes. There are documents that will show that

there are individuals who followed the leadership. Those are the

types of documents that are provided in this process to demonstrate political authority.

Senator BURR. But everybody has to meet all seven?

Mr. FLEMING. All seven must be met.

Senator BURR. Let me go to 83.7(g), the last one. Neither the petitioner nor its members are the subject of Congressional legislation that has expressly terminated or forbidden the Federal relationship. Is that not what we did in the 1956 act?

Mr. FLEMING. Exactly.

Senator BURR. Are the Lumbees not, will they not flunk 83.7(g)?

Mr. FLEMING. This is the criterion that has been the subject of

discussion. This is the one that we have

Senator BURR. So we would have to change the BIA criteria for

the Lumbees to have any chance of going through BIA review and

being accepted?

Mr. FLEMING. The Department has recommended amending the

1956 act to allow all groups of Robeson and adjoining counties.

True, we could

Senator BURR. Rather than change the BIA criteria, we would

just go back in history and say, you know, we really didn’t mean

it in 1956 that you couldn’t participate in this. So we are going to

give you 83.7(g).

Mr. FLEMING. We look forward to the opportunity to working

with the committee staff, as I stated in the testimony, in crafting

legislation to allow for an amendment to the 1956 act.

Senator BURR. You are actually a tribal member, aren’t you?

Mr. FLEMING. I am.

Senator BURR. Which tribe?

Mr. FLEMING. The Cherokee Nation in Oklahoma.

Senator BURR. I don’t think that anybody questions your commitment. You and I have met several times. I think that your knowl-
22

edge is incredible for Native Americans. I feel fortunate that we

have you in the capacity that we do.

You said that you are not opposed to the bill, but that it needs

clarification and improvement, so that it doesn’t reach out further

than what the intent is as it relates to potential petitioners. Is that

accurate?

Mr. FLEMING. The Department’s position is that the group go

through the process.

Senator BURR. Correct me if I am wrong, I heard in your statement you are not opposed to the bill, but believe it needs clarification, if that were the choice that Congress chose.

Mr. FLEMING. I believe my statement did not present a position

of opposition and it did not present a position of support.

Senator BURR. Okay. I might have written it as a paraphrase

versus a quote.

Through the BIA process and anybody who has petitioned

through it and been recognized as a tribe, have any of those petitioners faced the situation where additional groups have filed petitions at the same time they were going through recognition, or is

this just unique to the Lumbees?

Mr. FLEMING. There are many groups that have, groups that are

possibly related. Some groups, when they get into the process, they

may even splinter because of a political conflict that occurs. We

have several groups that are from the same region. There could be

the possibility of overlapping of membership. There are a lot of

complexities and the answer to your question, yes, there are other

groups that

Senator BURR. So this is not unusual. It just so happens that the

name of potentially a petitioner would be the Lumbee, but as more

people see that that might be an option, they have decided to file

petitions on their behalf, their interest. And that is not unusual in

applications that have come in in the past?

Mr. FLEMING. Correct.

Senator BURR. Good. In the 1930’s, we had the Indian Reorganization Act. Is it true that the Office of Indian Affairs recommended that the tribe put land in a trust to set up for resettlement? Are you aware of that?

Mr. FLEMING. I believe in some of the reports there had been Indian Reorganization Act activities that took place during that time

period. I am not well versed in the details.

Senator BURR. Would that not suggest that the Office of Indian

Affairs believed that this was a tribe that was going to be recognized, or would they have gone through that process?

Mr. FLEMING. I believe that there were many groups throughout

the United States that were being looked at at that time for the

Indian Reorganization Act. There was a whole process involved.

But I do not know precisely all the details that may have been affected to some of these groups.

Senator BURR. Mr. Chairman, I realize that the committee has

been very patient with me. I think at the heart of this is that there

is from 1888 up until 1956 where the Lumbees did follow the appropriate process in this country. Office of Indian Affairs reviewed,

1912, Government went down, as a matter of fact, the folks who

went down and did that review came back and made a rec-
23

ommendation that they are a tribe, they should be recognized. The

Department of the Interior ignored it, in 1915 the same thing happened. In 1930 the Office of Indian Affairs, based upon the Reorganization Act suggested that resettlement land might be put in a

trust. In 1956, everybody on the committee knows what happens.

In the 1960’s, we rewrote what the criteria was going to be for

that point forward for recognition. Everything that we look at is

sort of thrown out the window. I would only ask you one last question. The results of the 1956 act, as it relates specifically to the

Lumbees and the fact that they were recognized and terminated in

the same legislation, that that termination denied them the ability

at any point between then and today to go through the BIA process

and what happened to others who were caught in that same 1956

recognition and termination but recognized by Congress, do you believe that the Lumbees have been treated equitably and fairly?

Mr. FLEMING. I believe that the Lumbee have had an opportunity, since 1978, to go through the process. And in fact, they did

initiate a letter of intent and submitted a documented petition. As

the Department was preparing the technical assistance review letter to understand any deficiencies in the evidence under the seven

mandatory criteria, this is when the question of the 1956 act appeared. And there was a concern over 83.7(g).

Because of that, then the Office of the Solicitor of the Department of the Interior was asked to review the 1956 act. That is

when the opinion came through that the Department could not

move forward in the review of the Lumbee Petition, as well as

other groups of Robeson and adjoining counties. That is why the

Department has consistently advised or recommended that the

1956 act be amended to allow the same equitable action that has

been provided to the other petitioners that have gone through this

process.

Senator BURR. I appreciate the answer on behalf of the BIA. I

really asked the question from the standpoint of you, Mr. Fleming,

as a Native American. Do you believe that the Lumbees have been

treated fairly and equitably in comparison to everybody else that

went through the 1956 act? It is probably unfair to ask for a personal observation from a Federal employee, so I will not solicit the

answer, I will only say to the chairman, thank you for your accommodation of time. I yield back.

The CHAIRMAN. Mr. Fleming, on several occasions you have appeared before this committee. I appreciate your informed and unbiased opinion that you have provided this committee numerous

times in the past, including today. I know that Senator Dorgan

shares my view. Thank you very much. Thank you for being here.

Mr. FLEMING. Thank you.

The CHAIRMAN. The next panel is Jimmy Goins, tribal chairman,

Lumbee Tribe of North Carolina. He is accompanied by Arlinda

Locklear, attorney for the Lumbee Tribe. Michell Hicks, principal

chief, Eastern Band of Cherokees, and Dr. Jack Campisi, Anthropologist Consultant to the Lumbee Tribe of North Carolina.

I would like to welcome the witnesses. We will begin with Chairman Goins. Your complete written statements will be made part of

the record, without objection. Please proceed, Chairman Goins.
24

STATEMENT OF JAMES ERNEST GOINS, TRIBAL CHAIRMAN,

LUMBEE TRIBE OF NORTH CAROLINA, ACCOMPANIED BY

ARLINDA F. LOCKLEAR, ESQUIRE, ATTORNEY FOR THE

LUMBEE TRIBE OF NORTH CAROLINA

Mr. GOINS. Good morning, Chairman McCain and Vice Chairman

Dorgan, Senator Thomas. Thank you for the opportunity to express

my people’s strong support for S. 660.

I bring the Lumbee Tribe’s greetings and appreciation to our

great friends, Senator Dole and Senator Burr. The tribe and the

members who are here today express our gratitude for this hearing.

I have with me this morning Dr. Jack Campisi, an anthropologist

who is a nationwide expert on non-federally recognized tribes, and

who has years of experience with us Lumbees; and Arlinda

Locklear, the tribe’s lawyer on the recognition effort and also a

member of the tribe.

I am Jimmy Goins, chairman of the Lumbee Tribe. All three of

us have written statements that I request be made part of the

hearing record.

The CHAIRMAN. Without objection.

Mr. GOINS. Dr. Campisi will orally summarize his statement and

all three of us will be available for questions from the committee.

My kinsmen signed a petition that first sought Federal recognition for our people in 1888. The State had just recognized the tribe

and set up a school system for the Lumbee children. But the tribe

had too little funding and asked Congress for help. Congress referred our petition to the Department of the Interior, and the Department said no to our people. The Department said it would cost

too much.

Ever since, the Department has opposed recognition of the

Lumbee Tribe because of the cost of service, not because we are not

an Indian tribe. Since 1888, our people have repeatedly sought

Federal recognition from Congress directly and from the Department of the Interior.

The most insulting process we were subjected to came from the

Department of the Interior. After the passage of the Indian Reorganization Act, the Department told our people that if we could be

certified as one-half or more Indian blood we would be able to organize under a constitution and become recognized. In 1936, the Department sent anthropologists down to our community to check

blood quantum. Only 209 of our people agreed to submit themselves to this examination. He checked the blood, he measured

their teeth, he looked at the appearance of their cheek bones, then

he performed the famous pencil test to test the texture of their

hair.

Out of the 209, he certified 22 individuals that now whose descendants, hundreds of their descendants, are now enrolled with

the Lumbee Tribe, and two of their descendants have previously

served on our tribal council. But in the end, the Department refused to allow these individuals to organize, once again denying the

recognition of the tribe.

In 1956, Congress finally did pass and act for the Lumbees. But

it gave with one hand and took with the other hand. The bill started out as a recognition legislation. But when the Department of the

Interior asked Congress to amend the bill to include termination
25

language, the Congress did so, putting the tribe half in and half

out of the Federal relationship.

Because of the 1956 Lumbee Act, only Congress can now extend

full Federal recognition to the tribe. S. 660 would do this.

The tribe has waited long enough to be treated just like all other

Indian tribes. It has been more than 120 years now. The tribe has

been processed and studied enough. I have here a stack of studies

on Lumbee history, all done by Congress and the Department. I

ask the committee to make these a part of the record here today.

It is time for all this to end and for Congress to complete what they

started in 1956 by enacting S. 660.

When my Government needed me in Vietnam, I was ready to go.

And I was acknowledged as an American Indian. My enlistment

and discharge papers identified me as such. I did faithful service

and was awarded the Purple Heart and the Bronze Star. But on

my return to my country, to my country, my Government refused

to acknowledge my people for what they are. This pains me and

every other Lumbee veteran that fought for our country. Now we

find ourselves having to fight against our country.

Finally, let me put to rest some of the myths about our people,

myths that some use to oppose our recognition effort. Let’s start

with the State of North Carolina recognized us in 1885, but under

different names. We did not choose those names. Let me repeat

that. We did not choose those names. The State legislature of

North Carolina chose those names. The only name we ever chose

was Lumbee, derived from the name of the river where we always

lived, which is not uncommon among Indian people. But whatever

the name, we have always been there and are the same people

today.

Second, some say Congress should not recognize a tribe, only the

Department should. But this denies reality. The majority of tribes

recognized today, including the Eastern Band of Cherokee, were

recognized by Congress, not the Department of the Interior. Why

shouldn’t Congress recognize the Lumbee?

Now, some worry about the cost of recognizing the Lumbee Tribe,

the same reason that the Department of the Interior has always

used to oppose us. That is really not a fair recognition for opposing

recognition of the tribe. And even if it was fair, the costs are usually inflated. We have used the number of members who residing

in the service area, about 34,000, not the entire membership of

53,000, to determine the cost of service. This is accurate, since

services are usually available only to those in the service area. And

the Lumbee Tribe has always indicated willingness to work with

the Congress, as only the Congress can do, to deliver those services

in a responsible way.

And finally, the most insulting basis for some who oppose our bill

is to say we are not even Indian. They don’t know us. They haven’t

been in our communities. And yet they dispute every Congressional

and Federal record on our people.

We will match the strength of our history and community

against any other Indian tribe. As Dr. Campisi will testify, we are

in fact an Indian tribe. Gentlemen, the truth is that we are an Indian tribe. The Tribe knows this truth, and we believe Congress’

records on us demonstrate this truth.
26

Now on behalf of the Lumbee people, I urge this committee to report our bill out favorably. Thank you.

[Prepared statement of Mr. Goins appears in appendix.]

The CHAIRMAN. Thank you very much.

Chief Hicks, welcome.

STATEMENT OF MICHELL HICKS, PRINCIPAL CHIEF, EASTERN

BAND OF CHEROKEES

Mr. HICKS. [Greeting in native tongue.] Hello and good morning,

Chairman McCain, Vice Chairman Dorgan, members of the Committee on Indian Affairs, and with deepest respect to our Senator

Dole and Senator Burr from our home State of North Carolina.

Thank you for allowing me to testify today on behalf of the Eastern Band of the Cherokee. The Eastern Band is a federally-recognized tribe based on the Qualla Boundary in Cherokee, NC. We

have 13,500 members, and we are the largest federally recognized

tribe east of the Mississippi River. We share a common language

and deeply held cultural identity with two other Federally recognized tribes, the Cherokee Nation and the Keetowah Band of Cherokee based in Oklahoma.

The Cherokee tribes have a long history of dealings with the

United States. Of course, some of that history, Mr. Chairman, with

all due respect, was less than honorable. In the 1830’s, thousands

of Cherokees, both young and old, died when the U.S. Army rounded up tribes in the east and forced them to the west. We call that

travesty The Trail Where They Cried. The Eastern Band’s ancestors were the Cherokees who resisted that trail of tears and some

who found their way back to the Great Smoky Mountains.

For centuries, the Cherokee people have fiercely protected our

identity. We have a living, breathing culture with unique spoken

and written language. Many have tried to take our language. Many

have tried to take our culture. But none have succeeded. Our longdefended identity is threatened by several groups throughout the

southeast, the east and the north, who claim or have at some point

claimed to be Cherokee, as we have heard today, and whose legitimacy as such is questionable at best.

We believe that the Lumbee are one of many groups who fall into

this category today, again as we have heard. Since 1913, over 90

years ago, the Eastern Band has been concerned about this issue

of recognition. Long before gaming, in 1913, long before they took

the name Lumbee, this group sought recognition from the State of

North Carolina as the Cherokee Indians of Robeson County. Over

our opposition, that recognition was granted, and for more than 40

years they were State recognized as a Cherokee tribe.

In 1924, the Lumbee sought Federal recognition from the United

States Congress as ‘‘The Cherokee Indians of Robeson and Adjoining Counties.’’ And in 1932, they sought once again to be recognized by Congress as a Cherokee tribe. Congress rejected both of

those attempts. Today, all three of the federally recognized Cherokee tribes who make up the greater Cherokee Nation strongly oppose this legislation. Furthermore, the United South and Eastern

Tribes and other tribes from across the country oppose today’s legislation.
27

Mr. Chairman, let me give two specific reasons why we oppose

this bill. Then I would like to offer a fair solution for the Lumbee.

First, the integrity of our long government-to-government relationship with the United States is undermined when politics and emotion, rather than the facts about tribal identity, drive the Federal

recognition decisions.

And second, Mr. Chairman, the Office of Federal acknowledgement at the Interior Department, not the Congress, has the experts

to make determinations based on the facts about tribal identity and

tribal recognition. And Mr. Chairman, there are several facts that

I would like the committee to consider today.

First, the fact is that the Lumbee group has pursued legislation

like this at least 13 times over the last 100 years. And Congress

has rejected every attempt. But here we are again. The fact is they

have sought recognition as four different tribes, self-identifying

themselves as the Croatan, the Siouan, the Cheraw and again we

have heard today, the Cherokee people, the Principal People. The

fact is that experts say those claims don’t make sense, because

those tribes represent three completely different linguistic groups.

The fact is, Mr. Chairman, those experts say the claimed ties to the

historic Cheraw Tribe are tenuous at best.

Mr. Chairman, there is an established administrative process to

review these issues and make a fact-based decision. For these reasons, we strongly oppose the passage of S. 660, and we urge you

to consider another approach, one that will give the Lumbee a fair

and equitable and timely chance to meet the established criteria at

the Office of Federal Acknowledgment. If they can meet those

standards, which are reasonable, but they are complete, then they

will be recognized as a tribe and will have earned all the benefits

of Federal recognition, as the other 561 tribes have.

Mr. Chairman, please remember that the Lumbee submitted a

petition for acknowledgment to the Interior Department on January 7, 1980. On November 20, 1989, the Interior Solicitor determined that they could not complete the process because of the 1956

Lumbee Act. But Mr. Chairman, that was over 17 years ago. If the

Lumbee had agreed to legislation giving them a fair shot at the administrative process, then I am sure that they would have an answer today.

The question we ask is whether the Lumbee want to avoid the

administrative process because they believe it is unfair, or because

they know it will truly examine the factual issues about Lumbee

tribal identity. The Eastern Band of Cherokee Indians and its sister tribes of the Cherokee Nation urge you to protect the integrity

of all Indian nations and oppose this legislation.

Mr. Chairman and committee, I want to thank you for the opportunity to testify today. It is a privilege to be here. May God bless

each of you and your families. [Remarks in native tongue.]

[Prepared statement of Mr. Hicks appears in appendix.]

The CHAIRMAN. Thank you.

Dr. Campisi.
28

STATEMENT OF JACK CAMPISI, ANTHROPOLOGIST

CONSULTANT, LUMBEE TRIBE OF NORTH CAROLINA

Mr. CAMPISI. Good morning, Mr. Chairman and members of the

committee. I have worked with the Lumbee Tribe for more than 20

years, conducting field research and analyzing historical records. It

is my professional opinion that the Lumbee Tribe exists as an Indian tribe, and has done so from first sustained contact.

I based my conclusion on three main factors that I will summarize from my more detailed written statement. First, the historical

record is clear that the Lumbees descend from the historic Cheraw

Tribe. John Herbert, the commissioner of Indian Trade, drew a

map in 1725 that placed the Cheraw Tribe in the same location as

the modern day Lumbee Tribe. As you can see on this map, land

records dating back to the 1730’s show the sale of Cheraw tribal

land as marked where Cheraw old field is located. A newspaper account from 1771 identifies a Cheraw-settlement located on Drowning Creek. In 1809, the State of North Carolina changed the name

of Drowning Creek to Lumber River.

Finally, a 1773-document lists members of the Cheraw community showing the same uncommon surnames typical of the Lumbee

Tribe today, including Locklear, Grooms, Chavis, and Dees. In the

first Federal census of 1790, these same family names appear in

the same place on Drowning Creek. Today’s Lumbee Indians trace

descent directly from these families. In fact, the oldest continuously

documented Lumbee community, now known as Prospect, is located

on the Cheraw tribal lands.

Every expert who has examined Lumbee history has come to the

same conclusion, that the Lumbees descend from the Cheraw and

related tribes. Dr. John Swanton, of the Bureau of American Ethnology, did so in 1934. Dr. James Merrill, Professor of History at

Vassar College and an expert on southeastern Indians, did so in

1989, as did Dr. William C. Sturdivant, the editor of the Smithsonian Handbook on North American Indians and the chief ethnologist at the Smithsonian Institution, all of this regardless of

changes in names imposed by the State.

Second, in my experience, I have never seen a stronger Indian

community than exists among the Lumbee. To demonstrate this, I

did a 1 percent random sample of Lumbee tribal members in 2002.

The roll at that time consisted of approximately 53,000 members.

This sample revealed that 64.6 percent of the members live in the

geographical core area defined as within a 15 mile radius of Pembroke, NC. The evidence clearly shows that the majority of the

Lumbee Indians live in communities that are exclusively or nearly

exclusively Lumbee.

I used the same random sample to determine an in-marriage rate

of Lumbees. The random sample showed that 70 percent of Lumbee

marriages are between tribal members. The historical record shows

comparable high levels of geographic concentration and in-marriage. From these data, it is fair to conclude that the Lumbee Tribe

demonstrates a remarkable rate of social cohesion, higher than

many federally recognized tribes.

Third, the tribe has a long history of tribal governance and intense political activity. Since 1885, the tribe has maintained an active political relationship with the State of North Carolina. For
29

nearly 100 years, the tribe operated its own school system, established by the State legislature. Its leaders have persistently sought

to secure Federal recognition since 1888 and they has over its long

history vigorously defended the tribe.

Let me give a couple of examples. In 1888, 54 tribal members

signed a petition to Congress seeking Federal assistance in the

funding of the tribe’s school system. Virtually every Lumbee

present today behind me descends from one or more of those tribal

leaders. On another occasion, and also in defense of their schools,

Lumbee tribal leaders lobbied the State of North Carolina to set

aside a 1913-attorney general’s opinion that held that Robeson

County Board of Education could overrule the tribal leaders’ decisions about enrollment in the Lumbee schools. In 1921, the State

legislature confirmed the tribe’s authority to decide enrollment in

its schools.

One last example of tribal leadership occurred in 1958 when the

Ku Klux Klan announced a rally in the heart of Lumbee community. Lumbee leaders led a protest of the rally and dispersed the

Klan.

Lumbee churches have been and remain at the core of Lumbee

leadership. There are more than 130 all-Indian churches among the

Lumbees in Robeson County, the overwhelming majority with

Lumbee ministers. Historically, leadership of the tribe arose out of

the Lumbee churches. Most recently, the church leaders directed

the effort to adopt a formal tribal constitution. Following a churchorganized constitutional assembly, the tribe adopted its constitution in a special referendum in 2001.

The churches continue to be the wellspring of political leadership

and the central feature in continuing tribal identity. The extensive

record of the tribe’s history in the 18th, 19th, and 20th centuries

establish that the Lumbee Indians constitute an Indian tribe, even

as that term is defined in the Department of the Interior’s regulations. The tribe fails only on the last criterion in those regulations.

That is, Congress has prohibited the Department from acting on

the tribe’s petition in the 1956 Lumbee Act. Thus, Congress can

enact on S. 660 with full confidence that the Lumbees are in fact

an Indian tribe.

Thank you, Mr. Chairman.

[Prepared statement of Mr. Campisi appears in appendix.]

The CHAIRMAN. Thank you very much, Doctor.

Chairman Goins, would you like to respond to Chairman Hicks’

comments?

Mr. GOINS. The first thing I would like to say is that the implication was, were we afraid of the BIA process. When I finish, I am

going to ask Arlinda to sum it up.

But we don’t trust the BIA. In 1934, they said themselves that

we were descendants of the Cheraw Tribe. Then in 1956, if it

wasn’t for the Department of the Interior, we wouldn’t be here

today. It was the very insistence of putting the termination language in the 1956 act that we are here.

So why would we trust that they have changed their mind now?

The CHAIRMAN. Wasn’t it the Congress that passed the 1956 act

that called for termination?

Mr. GOINS. Yes; but it was——
30

The CHAIRMAN. Then why do you trust the Congress?

Mr. GOINS. But it is our understanding that Congress was influenced by the Department of the Interior to add the termination

language, not the Congress itself.

Ms. LOCKLEAR. If I may, Mr. Chairman, the chairman is correct

that the legislative history of the 1956 Lumbee Act shows that as

introduced, it did not contain termination language. It was intended as a straightforward recognition bill. It was amended in the

Senate at the request, recommendation of the Department of the

Interior to include the termination language expressly for the purpose of precluding the delivery of services to the tribe.

And if I may add very briefly, Mr. Chairman, that is consistent

with the entire history of the Lumbee’s effort. Several witnesses

have spoken today about the number of bills that have been introduced during the period 1899 to 1956 for the purpose of achieving

recognition, the suggestion being made that those bills failed for

the reason that the tribe simply didn’t qualify as a tribe. That is

not in fact the case. The legislative history demonstrates that those

bills failed principally because of the persistent opposition of the

Department of the Interior.

The CHAIRMAN. Well, in all due respect, the Congress does not

carryout the dictates of any department of Government. We are appointed as a separate body to deliberate and decide with the input

of various agencies of Government. I have been here for more than

20 years and I have never followed the dictates of any branch of

Government. We have received their advice, their counsel and their

recommendations. But they do not dictate to us.

Chairman Hicks, how did the Eastern Band of Cherokee become

recognized?

Mr. HICKS. Mr. Chairman, I would like to respond by saying first

of all, there has never been a question about the Cherokee people.

It is true that the Cherokee were recognized in 1868 by a Federal

process. But you may recall, as in my testimony, that the Cherokee

have had long dealings with this Federal Government. And again,

I want to highlight that there has never been a question about the

Cherokee people.

The CHAIRMAN. Well, my question was, how did they become recognized?

Mr. HICKS. Through the Federal process. And I also want to

highlight, Mr. Chairman

The CHAIRMAN. Not through a legislative act?

Mr. HICKS. Through a legislative act. But I also want to highlight that at that point in time, there was not an acknowledgment

process.

The CHAIRMAN. Chairman Goins, have you thought about the

issue of gaming operations in the event of recognition?

Mr. GOINS. Senator McCain, we started this process in 1888.

That has never been an issue. Gaming came about almost 100

years later. This is not about gaming. This is about jobs, health

care and just doing what is right for the Lumbee people. This is

about honor and dignity. No, gaming is not an issue with us.

The CHAIRMAN. I would appreciate an answer to the question.

Has it been a consideration as you have moved forward with this

process?
31

Mr. GOINS. No, sir.

The CHAIRMAN. Thank you very much.

As I understand your testimony, Chairman Goins, you have a

membership roll. How many do you have on that roll at this time?

Mr. GOINS. We can give you——

The CHAIRMAN. Roughly.

Mr. GOINS. Roughly around 53,000, total membership.

The CHAIRMAN. Thank you.

I understand that if legislation were passed giving you an opportunity to go through the process, your review on that, at least according to your opening statement, would be that it is too long and

too difficult a process, is that correct?

Mr. GOINS. Yes, sir.

The CHAIRMAN. Thank you. Senator Burr.

Senator BURR. Thank you, Mr. Chairman. I am not sure that

anybody up here has ever accused the chairman of following any

dictate from any of the agencies. His record is intact on that.

[Laughter.]

Chief Hicks, welcome.

Mr. HICKS. Thank you, Senator.

Senator BURR. I find it unfortunate that we have two North

Carolina entities that don’t necessarily find agreement. And let me

say this for Chairman McCain’s point, I personally believe we are

long past the point of a normal process. Because to suggest that we

took any entity and put them through a criteria that was established well after the Congress spoke, that even if they were

prioritized to the top of the line would take 15 years I think is just

an additional injustice that would be at the hands of the Congress.

So my hope is that members will look at this in the context of the

precedent that we as a body have done in the past. And as you

said, the Cherokees were the result of recognition, legislative recognition of the Congress of the United States.

Since 1960, we have had 15 recognitions by the Administration,

administrative process. We have had 16 recognitions by Congressional action. Chief Hicks, in 1972, when the Tonto Apache Tribe

of Arizona was Congressionally recognized, did the Cherokees object to that, to your knowledge?

Mr. HICKS. To my knowledge, Senator Burr, I don’t believe the

Cherokees objected to that. However, I would like to say that each

one of these individual situations that you may bring to light today

is based on its own merits.

Senator BURR. And clearly, the points that you raised relative,

two of them, to the Lumbees, could be applied to any of the 16 that

I just referred to. In 1978, the Modoc Tribe of Oklahoma, you didn’t

object to. In 1982, the Cow Creek Band of the Umpqua Indians of

Oregon, you didn’t disagree with Congressional action.

As a matter of fact, in 1987, what was the original Tiwa Tribe,

recognized and terminated in the same legislation as the Lumbees,

were Congressionally recognized but the Cherokees did not object

to that recognition. In 1988, the Lac Vieux Desert Band of Lake

Superior Chippewa Indians of Michigan, Congressionally recognized, no objection. The Coquille Tribe of Oregon in 1989, the

Pokagon Band of the Potowatomi Indians of Michigan in 1994, Little River Band of Ottawa Indians of Michigan, Little Traverse City
32

Band of Indians, all in 1994. No objections. There are objections as

it relates to Congressional recognition of the Lumbees.

Now, you raised three points of objection. The third point I find

somewhat unique, because you said the cost was just too significant. What was the cost of Cherokee recognition? Do you have any

idea?

Mr. HICKS. The cost of Cherokee recognition, when thousands of

the people, thousands of people died on the Trail of Tears, with all

due respect, Senator. That is the cost of the Cherokee recognition.

Senator BURR. But you put the objection to the Lumbees, the cost

to the American taxpayer. We didn’t, I don’t think, as a Congress,

apply a cost to Cherokee recognition, a cost to the American taxpayer. We looked at what we thought was an injustice and we tried

to correct the injustice. I think that is what we are here today to

do. I think we look at a mistake in 1956 and we look back and we

say, had in 1960 Congress been smart enough to recognize the mistake they had made in recognition and termination all in the same

piece of legislation, they would be done today. Had they recognized

in 1975, 1985.

I am not here to try to second guess why brilliant people weren’t

here then. And I am also here to recognize the fact that brilliant

people aren’t here today. But as Chairman McCain has proven over

and over again, sometimes you are at a certain place in time and

you are asked to deal with things from an equality standpoint. I

think that is where we are, as it relates to this.

I think I would ask you, do you think the Lumbees, since 1956,

have been treated fairly and equitably?

Mr. HICKS. Mr. Chairman, can I respond?

Senator BURR. The question was to you.

Mr. HICKS. I want to just point out in regards to your argument

with the 1956 act, I think it was very clear at that point in time,

with the other transactions that took place, and as your example

with the Tiwa, it was very clear and Congress was very clear in

regard to recognition and termination at that point. In regard to

the 1956 act as it applies to the Lumbee, again, that act, as I interpret it and many others have, is that it only commemorated a

name change and did not recognize, nor did it terminate an Indian

tribe.

The second point, Senator, is the CBO has calculated the effect

of potentially the third largest Indian tribe in the United States to

be close to, over a 4-year period, $700 million to the budget of this

U.S. Government.

Senator BURR. But you, Chief Hicks, have suggested that what

Congress should do is to follow the BIA process, seven steps of criteria, of which cost is not one of them. But you suggest that we

should incorporate cost into whether we get involved or not.

My only point is to point out that Congress will have to make

a decision of the chairman, the vice chairman, both of whom, I

trust their experience in this extremely much. If in fact the Congress of the United States chooses the BIA process, they may be

recognized. I will still, as a member, look back and say that we did

an injustice to a group who sought recognition and we may go then,

not just since 1956 to the year 2006, but 15, 20, or 25 years from
33

now, before they might even find out yes or no. I think it is an injustice today, I think it would be an injustice to go that long.

Let me, if I could, Mr. Chairman, just turn to Ms. Locklear for

a second. I would like you to fill in any blanks that may have been

left open by Mr. Fleming as it related to the Indian Reorganization

Act in the 1930’s, the Indian Affairs recommendation that Lumbee

set land aside. Can you shed any light on that whole transition?

Ms. LOCKLEAR. Yes, Senator; there is an extensive administrative record in that regard. Shortly after the passage of the Indian

Reorganization Act, Mr. Fleming is correct, the Department did

make an effort to outreach to groups all over the United States, including the Lumbee Tribe. There was correspondence between

Commissioner Collier at the time where Commissioner Collier encouraged the tribal leadership, to the Lumbee tribal leadership, to

contact the Solicitor’s office at the Department of the Interior with

regard to the possibility of obtaining recognition under the Indian

Reorganization Act.

They did so and received a letter from Felix Cohen who was the

Solicitor of the Department of the Interior at the time, and of

course, the preeminent author of the leading handbook on Federal

Indian law. And Mr. Cohen wrote directly to the Lumbee leadership advising that the Indian Reorganization Act was available to

the tribe, that if they were able to obtain certification of members

of the tribe, as one-half or more Indian blood, those individuals

could request the Department to take land into trust, adopt a constitution and thereby become organized.

The tribe immediately did so and the Department dispatched Dr.

Seltzer to the community in 1936 to engage in the process that

Chairman Goins described. That did result in the certification of

some individuals as half blood in the community. Only some, because very few Lumbees decided to subject themselves to that intrusive examination.

At the end of the day, though, that failed as well, because the

Department declined to take land into trust for the tribe, so that

the tribe could not adopt a constitution. So that is yet again another administrative process that the tribe attempted to take advantage of, but failed because the Department opposed recognition

of the tribe.

Senator BURR. And can you, Ms. Locklear, shed any light on the

1912 and 1915 visits by the individuals?

Ms. LOCKLEAR. Yes, Senator Burr; those came in response to bills

that had been introduced by Congress to recognize the tribe. And

let me add as a footnote there that if you look at the history of

those bills, and much has been made about the various names that

the tribe sought recognition under, or had been denominated by.

Those were not names that were selected by the tribe. Those were

names that were imposed on the tribe by the State of North Carolina. And the history of the recognition effort by the Lumbees

shows that as soon as the State of North Carolina passed a State

law recognizing the tribe under a certain name, then the delegation, the Congressional delegation introduced virtually the identical

bill that the State had passed to obtain Federal recognition on the

same terms.
34

The tribe was never asked itself what its name would be until

1953, when it finally adopted the name Lumbee. Those studies followed two of those bills that had been introduced by the Congressional delegation to obtain recognition from the Congress shortly

after recent legislation by the State. And at the Congress’ request,

the Department of the Interior dispatched special Indian agents to

Robeson County to conduct an investigation of the tribe. Both of

those investigations, which are included in the material that Chairman Goins asked to be made a part of the record, clearly demonstrate the Indian ancestry of the community, the strong ties of

the community, the political authority and leadership within the

community. In fact, one of those reports says that in the opinion

of that investigator, the majority of the Indians in Robeson County

are probably three-quarters or more Indian blood.

Some of those reports actually recommended the Department

support recognition of the tribe. But again, largely because of reasons of cost, the Department declined to do so. They opposed those

bills and the bills were defeated.

Senator BURR. Ms. Locklear, thank you for the clarification. It is

incredibly apparent that Congress has had more involvement in

this process of Lumbee recognition than just the 1956 act. It dates

back quite a ways.

Mr. Chairman, let me point out that we are blessed in North

Carolina both with the Lumbees and the Eastern Band of the

Cherokees, more importantly with the leadership of Chief Hicks

and of Chief Goins. These two organizations are represented in an

incredibly effective way, and I would like to thank both of them for

being here as well as Mr. Campisi.

Mr. Chairman, I yield.

The CHAIRMAN. Thank you.

Chief Hicks, how many people died in the trail of tears?

Mr. HICKS. Estimates are about 5,000 people, sir, about one-third

of the Cherokee Nation at that point in time.

The CHAIRMAN. Senator Dorgan.

Senator DORGAN. Mr. Chairman, thank you.

First of all, thanks to those of you who have come today to appear as witnesses. I know that many have driven some ways to be

a part of this. As I indicated when I gave an opening statement,

when I tried to get a time line of what all this means, it goes back

centuries. So might I ask how many are here from the Lumbee Nation, Lumbee Tribe?

[Show of hands.]

Senator DORGAN. Let me say that obviously there is some controversy here. These are not easy issues, but I think all of our witnesses have presented some very significant information to us with

which Senator McCain, myself and other members of this committee can begin to evaluate what the proper response is. And I thank

Senator Burr and our colleagues who have appeared, the Congressman and Senator Dole.
35

So I think rather than ask a series of questions, I am scheduled

to speak to an Indian education summit that is occurring now, so

rather than ask a series of questions, I just want to say a special

thank you for the presentations you have made. I think they are

heart-felt and they address a very important issue and one that we

will consider seriously. Thank you very much.

The CHAIRMAN. I thank the witnesses. This hearing is adjourned.

[Whereupon, at 11:15 a.m., the committee was adjourned.]

(37)

APPENDIX

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

PREPARED STATEMENT OF JACK CAMPISI, ANTHROPOLOGIST CONSULTANT, LUMBEE

TRIBE, NORTH CAROLINA

I hold a doctorate in anthropology, have dedicated my career to research in tribal

communities, and have taught these subjects as an adjunct professor at Wellesley

College. Between 1982 and 1988, I conducted a number of studies for the Lumbee

Tribe of North Carolina. Each of these included fieldwork in the community for periods of time varying from 1 week to 3 weeks. In all, I spent more than 20 weeks

in Robeson County carrying out a variety of research projects. Besides being responsible for synthesizing the thousands of pages of documentation collected during the

10 years it took to carryout the archival research, and for designing and carrying

out the community research, I had the honor of writing the petition that was submitted on December 17, 1987, to the Branch of Acknowledgment and Research [now

the Office of Federal Acknowledgment] under the Federal regulations that govern

acknowledgment of eligible Indian tribes, 25 C.F.R. Part 183. Specifically, I drafted

the Historical Narrative section, and researched and wrote the sections dealing with

community and political continuity. Subsequent to the completion of the petition, I

continued research with the Lumbee Tribe, most recently in 2002. The material that

follows is based on my 20 years’ research on the tribe’s history and community.

Over the course of the past 25 years, I have worked on 28 tribal petitions for Federal acknowledgment. None has exceeded the Lumbee petition in documentation and

no group has exhibited more evidence of community cohesion and political continuity than the Lumbee Tribe. It is my professional opinion that the Lumbee Tribe exists as an Indian tribe and has done so over history. I will outline below the main

arguments and evidence in support of this conclusion.

At the time of sustained white contact, there existed a Cheraw-Indian community

precisely where the Lumbees reside today. A 1725 map made by John Herbert

showed the Cheraw Tribe between the Pee Dee River and Drowning Creek. In 1737,

John Thompson purchased land in the same general area from the Cheraw, and in

1754, Governor Arthur Dobbs of North Carolina identified on ‘‘Drowning Creek on

the head of Little Pedee 50 families a mix Crew [or Breed] a lawless people filled

the lands without patent or paying quit rents shot a surveyor for coming to view

vacant lands being enclosed by great swamps.’’ A document written in 1771 refers

to ‘‘the Charraw Settlement’’ on Drowning Creek, and another document dated 1773

contains a list of names that connect this community to the Cheraw in 1737. Some

of the same surnames as today’s Lumbee population appeared on the list: Ivey,

Sweat, Groom, Locklear, Chavis, Dees, and Grant (see Dr. James H. Merrill letter

to Congressman Charlie Rose, October 18, 1989 for further discussion), attached to

this statement. The 1790 Federal census identifies families with these same surnames around Drowning Creek and modern day enrolled Lumbees can prove genealogical descent from those Indians. Thus, the community mentioned in the references cited in above and the community of Indians described in 19th century documents were the same, and were the antecedents of today’s Lumbee Tribe.
38

The Federal census records are by far the best source of evidence concerning the

early Lumbee community. It is clear from the names of the heads of households that

the area of Robeson County around Drowning Creek, renamed the Lumber River in

1809 by the State legislature, was occupied almost exclusively by tribal members.

Based on the 1850 census (the first census to provide the names of the individual’s

resident in each household), it is possible to describe the residency patterns of the

Lumbee community. Thus, there can be no doubt that there was an Indian community present along Drowning Creek from the mid-1700’s, separate from other communities in the area. It is also certain that this community had a well-established

leadership structure and that it managed its affairs with relative autonomy.

The oldest Lumbee community that can be continuously documented was called

Long Swamp, now called Prospect and located within the core area in Pembroke and

Smith townships the heart of the modern day Lumbee community. It is also located

right in the heart of the so-called old field of the Cheraw, documented in land

records between 1737 and 1739. The earliest census records show the presence in

this community of an extended Locklear family continuously since 1790. Members

of this extended family appeared among the tribal leaders, both by descent and marriage, who petitioned Congress for Federal recognition in 1888. Members of this extended family were also among those who were tested by physical anthropologist

Carl Seltzer in 1936 for blood quantum. This includes Duncan Locklear and Henry

Locklear, whose pictures are attached. The tribe’s attorney, Arlinda, Locklear, is

also descended from this extended family.

Federal census and State court records document the continued existence of a separate Indian community meeting in Robeson County during the ante-bellem period.

Although generally classified as free non-whites during the post-Revolutionary War

years, the Lumbees appear to have been treated more generously than free blacks,

being allowed to vote without challenge and to own property. However, in the 1830’s

two seemingly unrelated actions—one by the national government and the other by

the State of North Carolina—converged, with disastrous impact on the Indians of

the State. In 1830, Congress passed legislation providing for the removal of all Indian tribes east of the Mississippi River to land set aside in the ‘‘Indian Territory’’

in Oklahoma. Tribes such as the Cherokee and Creek were forced to leave. In the

climate of removal, it did not benefit a tribe to overtly manifest its identity.

Lumbees, like other Indians in the State, held their land in severally, but often

without patents. Thus, they were in a precarious position.

Added to the problem of tribal survival was the steadily worsening relationship

between whites and ‘‘people of color’’ in North Carolina following Nat Turner’s uprising in 1831. In 1835, the State passed a constitutional amendment denying tribal

members rights they had previously enjoyed. Many refused to abide by the changes

and some were charged with violations. One case, in particular, went far toward recognizing the Lumbees as Indians. In 1857, a William Chavers was arrested and

charged as ‘‘a free person of color’’ with carrying a shotgun, a violation of State law.

He was convicted, but promptly appealed, claiming that the law only restricted free

Negroes, not persons of color. The appeals court reversed the lower court, finding

that ‘‘Free persons of color may be, then, for all we can see, persons colored by Indian blood, or persons descended from Negro ancestors beyond the fourth degree.’’

The following year, in 1859, in another case involving a Lumbee, the appeals court

held that forcing an individual to display himself before a jury was tantamount to

compelling him to furnish evidence against himself. These cases generally resulted

in the Lumbees establishing a special status under the law as Indians, one outside

the limitations placed on others who were classified as ‘‘free persons of color.’’ From

1860 on, there is abundant evidence of tribal activity. During the Civil War the

Lumbee Indians were prohibited from serving in the Confederate Army and were,

instead, conscripted into labor gangs and assigned to build the fortifications at the

mouth of the Cape Fear River to protect the city of Wilmington. The conditions were

harsh and the treatment brutal. Many Lumbee men escaped and returned home

where they hid out in the swamps of Robeson County. Besides Lumbees, the

swamps provided a refuge for Union soldiers who had escaped from nearby Confederate camps. Because of their treatment by the Confederacy, and more particularly

the Home Guard, the Lumbees gave assistance and protection to the Union soldiers.

As the number of Lumbees and Union soldiers ‘‘laying out’’ increased, so did the

burden of feeding them. With so many men in hiding or conscripted, there were few

to do the farm work. Gradually, the attitude of the Lumbees changed from a passive

one to one marked by belligerence. In short order, a band emerged, led by the sons

of Allen Lowrie.

Matters came to a head in 1864 when members of the Allen Lowrie family and

the local authorities came into armed conflict and a number of individuals on both

sides were killed. In March 1865, the Home Guard captured Allen Lowrie and his
39

son, William, and after holding them for a short time, executed them in a field near

the father’s house. This was followed by a virtual reign of terror during which the

Home Guard tortured members of the Lowrie family and their kinsmen in order to

learn the whereabouts of the band. With the death of his father and brother, Henry

Berry Lowrie, who was barely 20 years old, took over the leadership of the band.

For the next decade, led by Henry Berry Lowrie, and with the Indian community’s

support and protection, the band fought against local authorities who sought by a

variety of means to oppress the Indian population in Robeson County. The Lowrie

Band led a struggle that ended only after the disappearance of its leader in 1872,

and the capture and death of the last of the band members in 1874. Henry Berry

Lowrie remains a folk hero to the Lumbee Indians and his story is told every year

in an outdoor drama called ‘‘Strike at the Wind.’’ By the 1870’s, the Lumbees were

openly acknowledged to be Indians. While the Lowrie Band was carrying out its defense, others in the tribe were taking equally effective actions to assert their independence. Lumbees were denied access to the white schools in the county and they

refused to attend the schools for blacks. This impasse was broken in 1885.

In 1885, the State of North Carolina formally recognized the tribe as the Croatan

Indians as a means of addressing the school issues. The State statute established

a school system for the children of tribal members only. Tribal leaders exercised

complete control over who could attend the schools. Each Lumbee settlement had

a school committee that determined eligibility. In order to be eligible, an individual

had to prove Lumbee ancestry back through the fourth generation, that is, back to

the 1770’s. Because of the rigorous manner in which these rules were enforced in

the 19th century, school enrollment records provide an accurate basis for determining present day membership.

In 1887, tribal members petitioned the State legislature again, requesting the establishment of a normal school to train Indian teachers for the tribe’s schools. Permission was granted, tribal members raised the funds, and along with some State

assistance, the normal school began training teachers for the expanding Lumbee

school system. That normal school has been in operation continually since, evolving

into Pembroke State University and, recently, the University of North Carolina at

Pembroke.

The tribe had difficulty, though, in supporting the Indian normal school financially. In 1888, the tribe petitioned Congress for assistance for its normal school.

The request was sent by the House Committee on Indian Affairs to the Commissioner of Indian Affairs, but no action was taken for nearly 2 years. Finally, in 1890,

Commissioner Morgan responded to the tribe, telling them that, ‘‘So long as the immediate wards of the Government are so insufficiently provided for, I do not see how

I can consistently render any assistance to the Croatans or any other civilized

tribes.’’ There is no doubt that the Government’s rejection of assistance was based

solely on economic considerations, the commissioner implying that if sufficient funds

had been available, services would have been provided to tribes he referred to as

‘‘civilized.’’

The Lumbees made frequent attempts over the course of the next 50 years to receive assistance from the United States. In 1899, Congressman John D. Bellamy introduced legislation to provide educational assistance for the Croatan Indians (as

the Lumbees were then called). Again, in 1910 and 1911, legislation was introduced

in Congress to change the tribe’s name and to establish ‘‘. . . a school for the Indians

of Robeson County, NC.’’ To secure information on the tribe, the Indian office sent

Charles F. Pierce, supervisor of Indian schools, to investigate. He reported favorably

on the tribe, finding ‘‘. . . a large majority as being at least three-fourths Indian.’’’

He described them as being law abiding and industrious and ‘‘crazy on the subject

of education.’’ Pierce had no doubt that the Lumbees were Indians, or that they

were a tribe. Nor did he doubt that Federal educational assistance would be beneficial. He opposed the legislation because, in his words, ‘‘[a]t the present time it is

the avowed policy of the Government to require States having an Indian population

to assume the burden and responsibility for their education, so far as is possible.’’

After lengthy deliberations, the bill passed the Senate, but not the House, because

the chairman of the House committee felt that the Lumbees were eligible to attend

the various Indian boarding schools.

The tribe continued its efforts to secure Federal educational assistance, and in

1914, sent a delegation to Congress. Another investigation was carried out by the

Indian Office at the direction of the Senate. Among other things, Special Indian

Agent, O.M. McPherson found that the tribe had developed an extensive system of

schools and a complex political organization to represent its interests. He noted that

the Lumbees were eligible to attend Federal Indian schools, but doubted that these

schools would meet their needs. His recommendation was that if Congress saw fit

to establish a school, it should be one emphasizing agricultural and mechanical
40

skills. Again, Congress took no action. Parenthetically, it should be noted that during this period tribal activity was generally at a low level across the United States.

Not so for the Lumbees, who actively involved their congressmen in their efforts to

achieve Federal recognition.

During the 1930’s, the tribe renewed its efforts to achieve Federal recognition. In

1932, the BIA asked the eminent anthropologist at the Bureau of American Ethnology John Reed Swanton for his professional opinion on the Lumbees. Swanton

was emphatic concerning their Indian ancestry, specifying a Cheraw and other eastern Siouan Tribes as their ancestry. A later report by Indian Agent Fred Baker

[1935], who had visited the Lumbee community, gave further support that they constituted a tribe. Baker discussed a resettlement project with the tribe in which the

Government would acquire land for the Lumbees’ support, an alternative to the

share-cropping and credit system then the predominant means of Lumbee livelihood. Baker reported to Congress:

It may be said without exaggeration that the plan of the Government meets with

practically the unanimous support of all of the Indians. I do not recall having heard

a dissenting voice. They seemed to regard the advent of the U.S. Government into

their affairs as the dawn of a new day; a new hope and a new vision. . . I find that

the sense of racial solidarity is growing stronger and that the members of this tribe

are cooperating more and more with each other with the object in view of promoting

the mutual benefit of all the members. It is clear to my mind that sooner or later

Government action will have to be taken in the name of justice and humanity to

aid them.

However, the Bureau of Indian affairs did not support recognition of the tribe, despite four studies that all found the Lumbee to be Indian. The apparent reasons

were the size of the tribe and the costs to the Government.

Following the First World War, the Lumbees renewed their efforts, both in the

State and with Congress, to improve their educational system. At the State level,

they were able to get an appropriation of $75,000 for capital improvements at the

Indian Normal School. The issue of the tribe’s name had become a concern, and tribal leaders sought legislation in Congress to recognize the name adopted by the state

legislature—The Cherokee Indians of Robeson and Adjoining Counties in North

Carolina. Such a bill was introduced in the Senate in 1924, and at first received

favorable support from the Secretary of the Interior, although Commissioner of Indian Affairs Charles H. Burke opposed the legislation. The Secretary later dropped

his support and the bill died.

The efforts to obtain congressional recognition were resumed in 1932. Senator Josiah W. Bailey submitted a bill designating the Indians of Robeson and adjoining

counties as ‘‘Cherokee Indians,’’ but this effort also failed. The following year another bill was proposed, this time designating the tribe as the ‘‘Cheraw Indians,’’

at the suggestion of Dr. Swanton. This name caused a split in the tribe, with those

tribal members led by Joe Brooks favoring it, while others, led by D.F. Lowry opposing it, fearing it would jeopardize the tribe’s control over its schools. Because of the

split in the tribe, the effort failed.

With the passage of the Indian Reorganization Act, Brooks and his supporters attempted to organize the tribe under a Federal charter. Because the tribe did not

possess a land base, it was advised by Assistant Solicitor Felix Cohen to organize

under the half-blood provision of the act. Cohen urged that the tribe apply for land

and a charter under the name of the ‘‘Siouan Indian Community of Lumber River.’’

Brooks immediately submitted a proposal that mirrored Cohen’s recommendations.

Over the course of the next 2 years, the two projects of establishing recognition

under the IRA and receiving land through the Bureau of Indian Affairs proceeded,

when suddenly, in 1936, the land acquisition proposal was shifted from the BIA to

the Rural Resettlement Administration, and the land that was to be purchased solely for Lumbee use, was opened to non-Indians. After a lengthy struggle, Brooks was

able to have a part of the land set aside for tribal members, and incorporated under

the name of the Red Banks Mutual Association.

The tribe was no more successful in achieving recognition under the IRA. The BIA

formed a commission of three to investigate the blood quantum of the Lumbees. In

1936, Dr. Carl C. Seltzer, an anthropologist and member of the commission, visited

Robeson County on two occasions and took physical data on 209 Indians applying

for recognition as one-half or more Indian blood. He found that 22 met the criteria.

They were certified by the Secretary of the Interior. What made Seltzer’s work so

ludicrous was that in several cases he identified full siblings in different ways, one

meeting the blood quantum requirement and the other not.

After the second World War, the Lumbees again tried to achieve Federal recognition of their status as an Indian tribe. The issue of their name continued to cause

them problems so, in 1952, the Lumbee leadership conducted a referendum on the
41

name; at the tribe’s request, the State funded and provided other assistance for the

conduct of the referendum. Of 2,144 tribal members who voted, all but 35 favored

the use of the name ‘‘Lumbee,’’ derived from the Lumber River upon which they had

always dwelled. Armed with this overwhelming support, the leader of the movement, D.F. Lowry, asked the State legislature to adopt the change. The legislature

approved the name change in 1953. The Lumbee Tribe then took its case to Congress, which in 1956 passed the Lumbee bill.

There can be no doubt that for more than 200 years the Lumbees have been continuously and repeatedly recognized as American Indians. This was made explicit

by the State in the 1880’s and by the Federal Government from at least the beginning of the 20th century on. Federal and State officials have, on numerous occasions, reviewed the evidence and at no time have they questioned the fact that the

tribe consisted of people of Indian descent. Federal reluctance to acknowledge the

tribe centered on questions involving the extension of services. It was unfortunate

that each effort by the Lumbees to clarify their Federal status and to receive services coincided with Federal Indian policy shifts away from the trust relationship:

The General Allotment Act in 1887; the Citizenship Act of 1924, and the termination policy of the 1950’s. The exception, the Indian Reorganization Act, which

could have provided a means to recognition, was subverted by bad anthropology and

bureaucratic indolence.

Since the passage of the Lumbee Act, the tribe has faced a steady string of problems, beginning with an attempt by the Ku Klux Klan to intimidate tribal members

in 1958 by a rally held within the Lumbee community. The tribe’s reaction to this

threat was a spontaneous gathering that drove the klansmen from the field and

broke up their rally, a confrontation that focused national attention for a time on

the Lumbee community. The tribal members have exerted their influence in other

ways. In the 1960’s they organized voter registration drives that made their influence felt on local politics, electing members of the tribe to State, county, and local

public offices. When the local school authorities attempted to integrate only the

black and Indian schools in the county, tribal members staged sit-ins and filed lawsuits to prevent the loss of tribal control over the schools. It must be understood

that the school system was and is a key and integral part of tribal identity, and

any threat to the tribe’s control would be resisted. And resisted it was!

While the tribe was struggling to maintain its schools, it was actively opposing

the so-called ‘‘double voting’’ system, which allowed whites in the towns [which had

separate school districts] to vote with whites in the county, who were in the minority, to maintain white control over the county school system. The students in the

county school system were predominantly Indian and black. Tribal leaders took the

case to Federal court, and after losing at the district court, won a reversal at the

court of appeals, thus ending double voting.

At about the same time, tribal leaders became involved in an issue with high symbolic value to the tribe. In 1972, the Board of Trustees of Pembroke State University

decided to demolish the main building on the campus and replace it with another

structure. Very quickly, a group formed to ‘‘Save Old Main.’’ The group waged a

statewide and national campaign to save the building, and just at the point when

it seemed that they would be victorious, the building was burned to the ground. The

tribe overcame this blow and campaigned hard for the reconstruction of Old Main,

which they eventually accomplished. The building was completed in 1975 and is now

the site of the University of North Carolina at Pembroke’s Native American Resource Center.

Since the end of World War II, the tribe has grown in stature and influence. It

was a primary mover in the establishment of North Carolina Commission of Indian

Affairs, an organization that has become a model for state Indian commissions. The

Lumbees have played an instrumental role in county affairs, where they have represented a moderating influence.

The Lumbee history is one of continual resistance to outside domination, beginning in the 18th century. In 1754, the ancestors of the Lumbees were described as

a community of 50 families living on Drowning Creek, ‘‘mixt Crew [or breed] a lawless people.’’ In 1773, they were identified as ‘‘A List of the Mob Railously Assembled together in Bladen County [later subdivided to create Robeson County].’’ In the

1830’s, Lumbees opposed the laws limiting their freedoms, and in the Civil War and

Reconstruction years, under the leadership of Henry Berry Lowerie, they actively

opposed, first the Confederate government, and later the United States.

The Lumbees are held together by the same mechanisms and values that have

kept them together for the past 100 years or more, mechanisms and values that are

typically Indian. First and foremost is the family, which serves as the center of

Lumbee social activities. There is continual and widespread visiting among adults,

particularly in the homes of parents and grandparents. Often, children live near
42

their parents on land that was part of the family homestead. Members of families

speak to and visit each other on an almost daily basis.

The knowledge that the average Lumbee has of his or her kin is truly astounding.

It is very common for individuals to be able to trace their parents’ genealogies back

five or more generations. Not only are individuals able to name their grandparents,

great grandparents, great great grandparents et cetera, but often they can name the

siblings of their ancestors, the spouses of their ancestors’ siblings, relate where they

lived in Robeson County, the church they attended, and the names of their offspring. It is common for an individual to name 200 or 300 individuals as members

of the immediate family. Every year there are family reunions that attract members

from all over the country. They vary in size from small gatherings of a few 100 close

kin to reunions involving 1,000 or more persons.

This kinship pattern is well illustrated by the mapping of all Lumbee heads of

household based upon the 1850 Federal census that I prepared for the tribe’s petition for Federal acknowledgment. I identified 168 households headed by Lumbees

in 1850. These heads of household are the ancestors of present day Lumbees and

include descendants of the Locklear extended family documented on the old Cheraw

field in 1790. The households were clustered in what is the core area today of the

Lumbee Tribe; in some areas, such as the Prospect community, the area was almost

exclusively Lumbee. The households showed an extremely high rate of in-marriage,

resulting in complex and multiple kinship and marriage ties among the members—

a pattern that continues today, as discussed below.

The same kinship pattern is reflected in the list of tribal leaders who appeared

on the 1887 petition to the State and the 1888 petition to the Congress. When these

individuals’ relationships, both marital and kin, are mapped, it again reveals a remarkably tight community. There are multiple ties, as shown by the chart submitted by the tribe with its petition for Federal acknowledgment. Thus, the high rates

of marriage and geographic concentration of tribal members shown today, as discussed below, were evident in 1790 and 1850.

Religion also serves to maintain the social boundaries of the Lumbee Tribe. By

social boundaries, I mean that there are membership rules, special beliefs and values, a unique history, and a system of political authority and decisionmaking that

marks the Lumbees as a separate community. There are more than 130 Lumbee Indian churches in Robeson County, and with one or two exceptions, each has a

Lumbee minister. Church membership crosses family lines and settlement areas,

thus drawing together different sectors of the tribe.

For the Lumbees, church is more than a religious experience; it is one of their

most important social activities. It involves many of them on a daily basis. The

churches have Sunday schools, youth organizations, senior citizens’ programs, Bible

study programs, and chorus practices, to mention but a few of the activities available. It is common for members of the same household to attend different churches,

and this behavior further acts to bring the tribal membership together.

An additional and important activity of the churches is to hold an annual ‘‘homecoming’’ during the fall. The event is well advertised and individuals come from

great distances to attend. Homecomings are held on Sundays after church service

and are open to all Lumbees. Families and friends gather in a church’s fellowship

hall and share a leisurely meal together. Commonly, there are several hundred tribal members in attendance. Homecomings are informal gatherings which offer opportunities for members of a family from different congregations to join with other families.

The family and the churches also provide the main avenues for political participation. In studying the Lumbee community, it is clear that leadership over the years

has tended to surface in the same families from generation to generation, something

like a system of inherited leadership. These leaders have gained prominence

through their participation in the educational system and as church leaders. In the

past, many of the tribe’s most dynamic leaders were ministers and teachers. Today,

there are other avenues for the demonstration of leadership qualities, but family,

education and religious values still command attention.

The importance of the role played by the Lumbee churches in the political life of

the tribe cannot be overstated. During the 1990’s, it was the leadership from the

churches that initiated and sustained the process for preparing a tribal constitution.

The delegates to the constitutional convention were selected by the churches and

represented every segment of the tribe. After nearly 10 years of meetings, negotiations, court actions, and re-drafts, the constitution was presented to the tribal members for their approval. On November 6, 2001, the tribal members voted on the constitution. Eighty-five percent of those voting voted in favor of adoption. The approved constitution is recognized by the State of North Carolina, and it is the tribe’s

governing document.
43

To determine the level of geographic concentration of modern day Lumbees, a random sampling of tribal members was prepared. This is a methodology approved by

the BIA in its analysis of a tribe’s community in the administrative acknowledgment

process. A 1 percent systematic sample was drawn from the Lumbee membership

files as of December 2002. Of the 543 files drawn, 29 were found to contain the

name of deceased individuals, or were missing from the files, leaving a balance of

514 files. This corresponds closely with the number of active members [52,850] as

reported to the Lumbee Tribal Council in December 2002.

The residency pattern of the Lumbee tribal members is divided into three categories: Core area where the tribal members live in either exclusively or nearly exclusively Lumbee geographical areas; those living somewhere in North Carolina; and

those living elsewhere. Included in the first category are the following communities

in Robeson County: Pembroke, Maxton, Rowland, Lumberton, Fairmont, St. Paul’s,

and Red Springs. Within these communities are areas that are exclusively [or nearly

so] occupied by Lumbees. These areas are reflected on the attached map.

The data show that of the 511 for whom there was residency data, 330 [64.6 percent] live in the core area, 102 [19.9 percent] live in the State of North Carolina,

and the 79 [15.4 percent] live elsewhere, almost all of them in the United States.

This high degree of geographic concentration establishes the existence of a Lumbee

community, even without any further evidence. See discussion below. Based on census and other data, the Tribe demonstrates the same high level of geographic concentration going back well into the nineteenth century, or as far as there are data

available.

A second indication of community is the level of in-marriage within a community.

Using the same sample, there were 276 records that provided information on the

age and marital status of individuals. Of these, 49 were younger than 16, the age

selected as marriageable. Another 23 were identified as single, leaving 204 with

known marriage partners. Of this number 143 [70 percent] were married to another

Lumbee tribal member. Of the remaining 61, 59 were married to non-Indians and

2 were married to members of other tribes. Again, this high in-marriage rate establishes the existence of a Lumbee community, even without any further evidence. See

discussion below. As with residency, based on census and other data, it is certain

that the Tribe can demonstrate comparably high in-marriage rates for the preceding

periods, going back well into the nineteenth century, or as far as there are data

available.

As discussed above, the Lumbee Tribe of North Carolina organized, ran, and

largely financed its own school system and teacher’s training college for nearly 100

years. It has had and continues to have a complex network of churches that exclusively or nearly exclusively serve the tribal members. Many of these churches are

tied together by three exclusively Lumbee 10 organizations—the Burnt Swamp Baptist Association [60 churches], the North Carolina Conference of the Methodist

Church [12 churches], and the Lumber River Holiness Methodist Conference [9

churches]. The others are non-affiliated. All of these demonstrate clear political authority within the community that is accepted as such by the outside world.

A specific example of tribal political authority in the education context is illustrative. In 1913, State Attorney General Thomas Bickett issued an opinion that the

Robeson County Board of Education, then controlled by non-Indians, had authority

to overrule a Lumbee Indian school committee’s decision to exclude a child who did

not meet the tribe’s eligibility requirements from an Indian school. This was unacceptable to the tribe. Tribal leaders sought and obtained State legislation in 1921

that reaffirmed the tribe’s authority to determine eligibility to attend the Lumbee

schools.

Another example of Lumbee political autonomy outside the context of education

involved the ultimate political control—the ability to directly elect leadership for the

Town of Pembroke located in the heart of the Lumbee community and occupied almost exclusively by Indians. At the time of its incorporation in 1895, State law required that public officials of the town be appointed by the Governor rather than

elected—the only incorporated town in the State so governed. Under pressure from

Lumbee tribal leaders, this State law was changed in 1945 to allow for direct election of town officials by the residents there, just as in all other incorporated towns

in the State. Since then, the mayor and town council of Pembroke have all been

Lumbee Indians.

From the 1960’s on, the Lumbee leadership sought to maintain control over their

schools and college, and when that was no longer possible, to share political power

in Robeson County. They instituted lawsuits to abolish double voting, fought to save

the college’s main administration building, and when that burned down, to have it

rebuilt, and elect Lumbee leaders to county positions. The tribe submitted a petition

for Federal recognition under 25 CRF 83. Finally, beginning in 1993, the tribe began
44

the process that eventually led in 2002 to the present constitution and tribal government. The process started with funds from a Methodist Church grant, the delegates

were chosen from the participating churches, and the process was deeply influenced

by church leaders. The results were overwhelming endorsed by the tribal population

in two referenda—1994 and 2001.

In 1978, the Department of the Interior established a regulatory process for the

acknowledgment of Indian tribes. 25 C.F.R. Part 83. The Department has determined that the Lumbee Tribe is not eligible for this administrative process because

of the 1956 Lumbee Act. However, the history and data establish that the tribe

nonetheless meets the seven mandatory criteria used in the Department’s regulations to define an Indian tribe. Those seven mandatory criteria are:

(a) identification as an American Indian entity on a substantially continuous basis

since 1900;

(b) a predominant portion of the petitioning group comprises a distinct community

and has existed as a community from historical times until the present;

(c) the petitioner has maintained political influence or authority over its members

as an autonomous entity from historical times until the present;

(d) a copy of the group’s present governing document including its membership

criteria;

(e) the petitioner’s membership consists of individuals who descend from a historical Indian tribe or tribes which combined and functioned as a single autonomous

political entity;

(f) the membership of the petitioning group is composed principally of persons who

are not members of any acknowledged North American Indian tribe;

(g) Neither the petitioner nor its members are the subject of congressional legislation that has expressly terminated or forbidden the Federal relationship.

Criterion (a) Identification as an Indian entity

This criterion can be met by showing evidence of Federal, State, or county relationships, or identification by historians or social scientists, in books or newspapers,

or by relationships with other tribes or national, regional or state Indian organizations since 1900. There are repeated and numerous identifications of the Lumbee

Tribe as an Indian entity since 1900, as shown in the summary of the tribe’s efforts

to obtain Federal recognition above. There can be no serious question that the

Lumbee Tribe can and has demonstrated this criterion.

Criterion (b) Community

This criterion provides a number of ways to demonstrate community, foremost

among these are rates of marriage and residency patterns. The regulations provide

that an Indian group has conclusively demonstrated this criterion by proof that 50

percent or more of its members reside in a geographical area composed exclusively

or almost exclusively of tribal members, or that at least 50 percent of its members

are married to other tribal members. These are the so-called high evidence standards. As established above, the Lumbee Tribe meets both these high evidence standards, both historically and in modem times. This means that the Lumbee Tribe has

conclusively demonstrated community as defined by the regulations, typically the

most difficult part of the administrative process for petitioning tribes.

Criterion (c) Political

The regulations provide that if community is proven by high evidence as exhibited

by the Lumbee community, this is considered conclusive proof of political authority

as well. In other words, the same high evidence of community exhibited by the

Lumbee also conclusively demonstrates political authority for the Lumbee Tribe,

both historically and in modern times. In addition, the actual evidence of political

authority summarized above—from the substantial and active political relationship

maintained with the State of North Carolina since 1885, repeated efforts organized

by tribal leaders to obtain Federal recognition, and persistent resistance to challenges to tribal independence—show vibrant and effective political leadership within

the tribe, both historically and in modern times.

Criterion (d) Governance

This criterion requires that a petitioner submit either a statement describing its

system of governance or its governing document. By the adoption of a tribal constitution, one that has been recognized by the State of North Carolina, the tribe

clearly demonstrates this criterion.

Criterion (e) Descent from a historical tribe or tribes

As to criterion (e), Dr. John R. Swanton, a member of the staff of the Bureau of

American Ethnology, a Federal Government agency, and one of the Nation’s foremost anthropologists and experts on American Indian tribes, particularly in the

southeast, concluded in the early 1930’s that the Lumbees are descended predominantly from Cheraw Indians. The Department of the Interior adopted this position

in its 1934 statement to Congress on one of the proposed recognition bills, relying
45

on Dr. Swanton’s report. This has also been confirmed and supported by scholars

such as Dr. William C. Sturtevant, Chief Ethnologist of the Smithsonian Institution

and general editor of the Handbook of American Indians and Dr. James Merrell,

Professor of History, Vassar College, and a leading authority on the colonial Carolinas. Both of their statements are attached.

Criterion (f) Petitioner’s members are not members of any federally recognized tribe

The members of the Lumbee Tribe of North Carolina are not members of any federally recognized tribe. This can be demonstrated by a review of the tribe’s genealogical data.

Criterion (g) The petitioner has not been the subject of a Federal termination act

The Solicitor for the Department of the Interior has determined that the 1956

Lumbee Act is an act forbidding the Federal relationship.

Summary

Typically, Indian tribes petitioning for acknowledgment under the administrative

process have most difficulty with criteria (b) and (c), community and political authority respectively. Every tribe that has been denied acknowledgment through the

process to date has failed because of the inability to prove these criteria, and perhaps others. As demonstrated above, the Lumbee Tribe’s case on these criteria is

so strong as to be conclusive. In light of the heavily documented history of the tribe

since 1900, neither can there be any doubt about the Tribe’s ability to demonstrate

the other criteria.

In the past few years, the BIA has opposed bills to recognize the Lumbee. The

Bureau has complained that there is too little data, specifically that a genealogical

link between the Cheraw Tribe on Drowning Creek and the present-day Lumbee

Tribe on the renamed Lumber River cannot be made, despite the occurrence of

shared and uncommon surnames. Of course, the failure of the dominant society to

record the births and deaths of Lumbees before 1790 is no fault of the tribe; nor

does this absence suggest that the Lumbee Tribe is not descended from the Cheraw

Tribe. In fact, the Department testified in 1934 that the tribe was descended from

the Cheraw Tribe, based upon the work of the eminent Dr. Swanton. The Department’s earlier opinion is also corroborated by the professional opinions of Drs.

Sturtevant and Merrill. Thus, the Department’s more recent view should be taken

as more intellectual curiosity than serious doubt about the origins of the tribe. And

this new found curiosity should be judged in the context of the Department’s longstanding determination to oppose recognition of the tribe, even in the face of its past

judgment that the Lumbees truly are an Indian tribe.

The extensive record of the tribe’s history in the 18th, 19th, and 20th centuries

establish that the Lumbee Indians constitute an Indian tribe as that term is defined

in the Department of the Interior’s acknowledgment regulations. The tribe fails only

on the last criterion, that is, Congress has prohibited the Department from acting

on the Tribe’s petition in the 1956 Lumbee Act. Thus, the Congress can act on S.

660 with full confidence that the Lumbees are, in fact, an Indian tribe.

PREPARED STATEMENT OF R. LEE FLEMING, DIRECTOR, OFFICE OF FEDERAL

ACKNOWLEDGMENT, DEPARTMENT OF THE INTERIOR

Good morning, Mr. Chairman and members of the committee. My name is Lee

Fleming and I am the director of the Office of Federal Acknowledgment at the Department of the Interior [Department]. I am here today to provide the Administration’s testimony on S. 660, the Lumbee Recognition Act. The recognition of the continued existence of another sovereign is one of the most solemn and important responsibilities delegated to the Secretary of the Interior, which the Department administers through its acknowledgment regulations at 25 C.F.R. Part 83. Federal acknowledgment, or recognition, of tribal status enables Indian tribes to participate

in Federal programs and establishes a government-to-government relationship between the United States and the Indian tribe. Acknowledgment carries with it certain immunities and privileges, which may include exemptions from State and local

jurisdiction and the ability of newly acknowledged Indian tribes to undertake

unique economic opportunities.

Under the Department’s acknowledgment regulations, petitioning groups must

demonstrate that they meet each of the 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;
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(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 is considered met if the available evidence establishes a reasonable

likelihood of the validity of the facts relating to that criterion.

The Department recognizes that under the U.S. Constitution Indian Commerce

Clause, 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 the Department of the Interior supports a recognition process that requires groups go through the Federal acknowledgment process because it provides

a deliberative uniform mechanism to review and consider groups seeking Indian

tribal status. Notwithstanding that preference, the Department recognizes that

some legislation is needed given the unique status of certain Indians in North Carolina.

In 1956, Congress designated 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,

legislation is necessary for the Lumbee Indians to be afforded the opportunity to petition for tribal status under the Department’s regulations. The Department would

welcome the opportunity to assist the Congress in drafting such legislation.

If Congress elects to bypass the regulatory process in favor of legislative recognition of the Lumbee in a manner granting full sovereign rights, then the Department

makes the following comments on S. 660, as currently drafted.

S. 660 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. Not doing so could potentially expose

the Federal Government to unwarranted lawsuits and possibly delay the recognition

process.

One of the benefits or privileges available to recognized Indian tribes is the ability

to conduct gaming under the Indian Gaming Regulatory Act [IGRA]. Under S. 660,

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, and gaming will be allowed on those lands

under the provisions of IGRA. Prior to conducting class III gaming, the Lumbee

Tribe of North Carolina would need to negotiate a gaming compact with the State

of North Carolina. In addition, the Lumbee Tribe of North Carolina must have lands

taken into trust. Generally, if a tribe wants to game on land taken into trust after

the passage of IGRA, it must go through the two-part determination described in

25 U.S.C. §2719(b)(1)(A). This process requires the Secretary to determine, after

consultation with the tribe and the local community, that gaming is in the best in-
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terest of the tribe and its members and not detrimental to the local community. If

the Secretary makes that determination in favor of allowing gaming, then the gaming still cannot occur without the Governor’s concurrence.

Under S. 660, 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 gaming, zoning, and environmental regulations.

We are concerned with the provision requiring the Secretary, within 1 year, 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 tribal roll 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, S. 660 is silent as to the

meaning of verification for inclusion on the Lumbee group’s tribal roll.

In addition, section 3 may raise a constitutional problem by purporting to require

the President to submit annually to the Congress as part of his annual budget submission a budget that is recommended by the head of an executive department for

programs, services and benefits to the Lumbee. Under the Recommendations Clause

of the United States Constitution, the President submits for the consideration of

Congress such measures as the President judges necessary and expedient.

Should Congress choose not to enact S. 660, the Department feels that at a minimum, Congress should amend the 1956 Act to afford the Lumbee Indians the opportunity to petition for tribal status under the Department’s acknowledgment regulations.

This concludes my prepared statement. I would be happy to answer any questions

the committee may have.

PREPARED STATEMENT OF HON. ROBIN HAYES, U.S. REPRESENTATIVE FROM NORTH

CAROLINA

Chairman McCain and Vice Chairman Dorgan, I appreciate you taking the time

to hold this hearing on the Lumbee Recognition Act, S. 660. Since I have been in

Congress, I have worked hard to see that the Lumbee Tribe receives full Federal

recognition.

As you know, this past June marks the 50th anniversary of the 1956 Lumbee Act,

which acknowledged the Lumbee Tribe as an Indian tribe; however, Congress withheld giving the tribe full Federal recognition. I know Senator Dole and Senator Burr

are working hard to garner strong support the Lumbee Recognition Act, and I appreciate their leadership on this issue in the Senate.

I am a proud original cosponsor of the House companion bill, H.R. 21, which was

sponsored by my friend and colleague Congressman Mike McIntyre. Mike has been

a tireless advocator of the Lumbee Tribe and it has been a pleasure working with

him on this issue as well.

The Lumbee Indian Tribe has an extensive history in North Carolina ranging

back to 1724 on Drowning Creek, which is now referred to as the Lumbee River.

The Lumbee Tribe has been recognized by the State of North Carolina since 1885.

The Lumbee Tribe has over 40,000 members and is the largest tribe in the State

of North Carolina.

The 8th District, which I serve, is home to many of the Lumbees that reside in

North Carolina, primarily in Hoke, Scotland, and Cumberland counties. I strongly

believe that these important members of my constituency deserve Federal recognition so they are able to receive various Bureau of Indian Affairs and other Federal

Government services and programs they rightly deserve.

The heritage of the Lumbee Tribe is as strong today as when first recognized by

North Carolina and the tribe should be proud of the rich and valued cultural contribution they have given to our communities. It is my hope that we as a Congress

do what the Federal Government should have done decades ago and give the

Lumbee Tribe the distinction of a federally recognized tribe.

Thank you all again for holding this hearing. I look forward to continuing to work

with you all on this important issue.
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Æ