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89–476 PDF 2004

S. HRG. 108–336

LUMBEE RECOGNITION

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

ON

S. 420

TO PROVIDE FOR THE ACKNOWLEDGMENT OF THE LUMBEE TRIBE OF

NORTH CAROLINA

SEPTEMBER 17, 2003

WASHINGTON, DC

(
COMMITTEE ON INDIAN AFFAIRS

BEN NIGHTHORSE CAMPBELL, Colorado, Chairman

DANIEL K. INOUYE, Hawaii, Vice Chairman

JOHN McCAIN, Arizona,

PETE V. DOMENICI, New Mexico

CRAIG THOMAS, Wyoming

ORRIN G. HATCH, Utah

JAMES M. INHOFE, Oklahoma

GORDON SMITH, Oregon

LISA MURKOWSKI, Alaska

KENT CONRAD, North Dakota

HARRY REID, Nevada

DANIEL K. AKAKA, Hawaii

BYRON L. DORGAN, North Dakota

TIM JOHNSON, South Dakota

MARIA CANTWELL, Washington

PAUL MOOREHEAD, Majority Staff Director/Chief Counsel

PATRICIA M. ZELL, Minority Staff Director/Chief Counsel

(II)
(III)

C O N T E N T S

Page

S. 420, text of ........................................................................................................... 2

Statements:

Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado, chairman,

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

Campisi, Jack, tribal historian, Lumbee Tribe, North Carolina .................. 32

Dole, Hon. Elizabeth, U.S. Senator from North Carolina ............................. 12

Faleomavaega, Hon. Eni, U.S. Delegate from American Samoa .................. 16

Hunt, Milton, chairman, Lumbee Tribe, North Carolina .............................. 23

Inouye, Hon. Daniel K., U.S. Senator from Hawaii, vice chairman, Committee on Indian Affairs ............................................................................... 11

Locklear, Arlinda, tribal attorney, Lumbee Tribe, North Carolina .............. 36

Martin, Aurene, principal deputy assistant secretary, Indian Affairs, Department of the Interior ............................................................................... 18

Martin, James T., executive director, United South and Eastern Tribes,

Nashville, TN ................................................................................................ 40

McIntyre, Hon. Mike, U.S. Representative from North Carolina ................. 14

APPENDIX

Prepared statements:

Campisi, Jack (with attachment) .................................................................... 48

Hunt, Milton (with attachment) ...................................................................... 83

Locklear, Arlinda (with attachment) .............................................................. 108

Martin, Aurene ................................................................................................. 45

Martin, James T. .............................................................................................. 131

Schierbeck, Helen Maynor, Member, Lumbee Tribe, North Carolina (with

attachment) ................................................................................................... 141

Additional material submitted for the record:

Letters ............................................................................................................... 153

(1)

LUMBEE RECOGNITION

WEDNESDAY, SEPTEMBER 17, 2003

U.S. SENATE,

COMMITTEE ON INDIAN AFFAIRS,

Washington, DC.

The committee met, pursuant to notice, at 10 a.m. in room 485,

Senate Russell Building, Hon. Ben Nighthorse Campbell (chairman

of the committee) presiding.

Present: Senators Campbell, Inouye, and Cantwell.

STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM COLORADO, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

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

This will be our first post-recess hearing. This morning we will

hear testimony on S. 420, the Lumbee Acknowledgement Act of

2003, introduced by our colleague, Senator Dole, who is with us, as

is Congressman McIntyre. I understand that Congressman

Faleomavaega may be here also.

Let me proceed just for 1 minute here. We will hear testimony

from Senator Dole first, and then we will go to Congressman McIntyre and then your colleague. At the conclusion of that, we then go

to the Administration witness because we know people have tight

schedules, but you are welcome to stay here with us throughout the

hearing if you would like, sit at the dais or sit in the audience,

whatever your preference is will be fine with us.

S. 420 will amend the Federal statute relating to the Lumbee Indians of North Carolina, enacted in the termination period of the

1950’s. If enacted, it will provide recognition and benefits of recognition to the 50,000-plus member Lumbee Tribe of North Carolina.

[Text of S. 420 follows:]
2

1

II

108TH CONGRESS

1ST SESSION S. 420

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

and for other purposes.

IN THE SENATE OF THE UNITED STATES

FEBRUARY 14, 2003

Mrs. DOLE 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 Acknowledg5 ment Act of 2003’’.

6 SEC. 2. LUMBEE ACKNOWLEDGMENT.

7 The Act of June 7, 1956 (70 Stat. 254, chapter 375),

8 is amended to read as follows:
3

2

•S 420 IS

1 ‘‘SECTION 1. SHORT TITLE.

2 ‘‘This Act may be cited as the ‘Lumbee Acknowledg3 ment Act’.

4 ‘‘SEC. 2. FINDINGS.

5 ‘‘Congress finds that—

6 ‘‘(1) many Indians living in Robeson County,

7 North Carolina, and adjoining counties in the State

8 are descendants of a once large and prosperous tribe

9 that occupied the land along the Lumbee River at

10 the time when the earliest European settlements

11 were established in the area;

12 ‘‘(2) when the members of that tribe first made

13 contact with the settlers, the members were a well14 established and distinctive people living in Euro15 pean-style houses, tilling the soil, owning slaves and

16 livestock, and practicing many of the arts and crafts

17 of European civilization;

18 ‘‘(3) tribal legend, a distinctive appearance and

19 manner of speech, and the frequent recurrence

20 among tribal members of family names (such as

21 Bullard, Chavis, Drinkwater, Locklear, Lowery,

22 Oxendine, and Sampson) that were found on the

23 roster of the earliest English settlements, provide

24 evidence that the Indians now living in the area may

25 trace their ancestry back to both—

26 ‘‘(A) European settlers; and
4

3

•S 420 IS

1 ‘‘(B) certain coastal tribes of Indians in

2 the State, principally the Cheraw Tribe;

3 ‘‘(4) the Lumbee Tribe has remained a distinct

4 Indian community since European settlers first

5 made contact with the community;

6 ‘‘(5) the members of the Tribe—

7 ‘‘(A) are naturally and understandably

8 proud of their heritage; and

9 ‘‘(B) seek to establish their social status

10 and preserve their ancestry;

11 ‘‘(6) the State has acknowledged the Lumbee

12 Indians as an Indian tribe since 1885;

13 ‘‘(7) in 1956, Congress acknowledged the

14 Lumbee Indians as an Indian tribe but withheld

15 from the Tribe the benefits, privileges, and immuni16 ties to which the Tribe and members of the Tribe

17 would have been entitled by virtue of status as an

18 acknowledged Indian tribe; and

19 ‘‘(8)(A) the Tribe is entitled to full Federal ac20 knowledgment; and

21 ‘‘(B) the programs, services, and benefits that

22 accompany that status should be extended to the

23 Tribe and members of the Tribe.

24 ‘‘SEC. 3. DEFINITIONS.

25 ‘‘In this Act:
5

4

•S 420 IS

1 ‘‘(1) ACKNOWLEDGMENT.—The term ‘acknowl2 edgment’ means acknowledgment by the United

3 States that—

4 ‘‘(A) an Indian group is an Indian tribe;

5 and

6 ‘‘(B) the members of the Indian group are

7 eligible for the programs, services, and benefits

8 (including privileges and immunities) provided

9 by the United States to members of Indian

10 tribes because of the status of those members

11 as Indians.

12 ‘‘(2) INDIAN.—The term ‘Indian’ means a

13 member of an Indian tribe or Indian group.

14 ‘‘(3) INDIAN GROUP.—The term ‘Indian group’

15 means any Indian band, pueblo, village, or commu16 nity that is not acknowledged.

17 ‘‘(4) INDIAN TRIBE.—The term ‘Indian tribe’

18 has the meaning given the term in section 4 of the

19 Indian Self-Determination and Education Assistance

20 Act (25 U.S.C. 450b).

21 ‘‘(5) SECRETARY.—The term ‘Secretary’ means

22 the Secretary of the Interior.

23 ‘‘(6) SERVICE POPULATION.—The term ‘service

24 population’ means the population of the Tribe eligi25 ble to receive the programs, services, and benefits
6

5

•S 420 IS

1 described in section 5(a), as determined by the Sec2 retary under section 5(c).

3 ‘‘(7) STATE.—The term ‘State’ means the State

4 of North Carolina.

5 ‘‘(8) TRIBAL ROLL.—The term ‘tribal roll’

6 means a list of individuals who have been deter7 mined by the Tribe to meet the membership require8 ments of the Tribe established in the constitution of

9 the Tribe adopted November 11, 2000.

10 ‘‘(9) TRIBE.—The term ‘Tribe’ means the

11 Lumbee Tribe of North Carolina, located in Robeson

12 County, North Carolina, and adjoining counties in

13 the State.

14 ‘‘SEC. 4. ACKNOWLEDGMENT OF LUMBEE TRIBE.

15 ‘‘(a) ACKNOWLEDGMENT.—

16 ‘‘(1) IN GENERAL.—The Tribe is acknowledged.

17 ‘‘(2) APPLICABLE LAW.—All laws (including

18 regulations) of the United States of general applica19 bility to Indians and Indian tribes shall apply to the

20 Tribe and members of the Tribe.

21 ‘‘(b) PETITION.—Any Indian group located in Robe22 son County, North Carolina (or any adjoining county), the

23 members of which are not members of the Tribe as deter24 mined by the Secretary under section 5(c), may submit

25 to the Secretary a petition in accordance with part 83 of
7

6

•S 420 IS

1 title 25, Code of Federal Regulations (or a successor regu2 lation), for acknowledgement.

3 ‘‘SEC. 5. SERVICES.

4 ‘‘(a) IN GENERAL.—Beginning on the date of enact5 ment of this section, the Tribe and members of the Tribe

6 are eligible for all programs, services, and benefits (includ7 ing privileges and immunities) provided by the Federal

8 Government to Indian tribes and members of Indian

9 tribes.

10 ‘‘(b) RESERVATION.—

11 ‘‘(1) PROGRAMS, SERVICES, AND BENEFITS.—

12 For the purpose of providing any program, service,

13 or benefit described in subsection (a) to the Tribe or

14 a member of the Tribe, the Tribe, and any member

15 of the Tribe residing in the county of Robeson,

16 Cumberland, Hoke, or Scotland in the State, shall

17 be considered to be residing on or near an Indian

18 reservation.

19 ‘‘(2) FEDERAL LAW.—Beginning on the date of

20 enactment of this section, Robeson County, North

21 Carolina, shall be considered to be the reservation of

22 the Tribe for the purpose of any Federal law appli23 cable to the Tribe.

24 ‘‘(3) NO EFFECT ON FEE OWNERSHIP.—Noth25 ing in this subsection affects the ownership status of
8

7

•S 420 IS

1 any fee land within the State, or the status of any

2 right or easement in the State, in existence as of the

3 date of enactment of this section.

4 ‘‘(c) DETERMINATION OF SERVICE POPULATION.—

5 ‘‘(1) IN GENERAL.—Not later than 1 year after

6 the date of enactment of this section, the Secretary

7 shall—

8 ‘‘(A) using the tribal roll in existence as of

9 the date of enactment of this section, verify the

10 population of the Tribe; and

11 ‘‘(B) determine the population of the Tribe

12 eligible to receive the programs, services, and

13 benefits described in subsection (a).

14 ‘‘(2) VERIFICATION.—The Secretary shall base

15 a verification under paragraph (1)(A) only on a con16 firmation of compliance of members of the Tribe

17 with membership criteria established in the constitu18 tion of the Tribe adopted November 11, 2000.

19 ‘‘(d) NEEDS OF TRIBE.—

20 ‘‘(1) IN GENERAL.—On determination of the

21 service population, the Secretary and the Secretary

22 of Health and Human Services shall develop, in con23 sultation with the Tribe—

24 ‘‘(A) a determination of the needs of the

25 Tribe; and
9

8

•S 420 IS

1 ‘‘(B) a recommended budget required to

2 serve the Tribe.

3 ‘‘(2) SUBMISSION OF BUDGET REQUEST.—For

4 each fiscal year after determination of the service

5 population, the Secretary or the Secretary of Health

6 and Human Services, as appropriate, shall submit to

7 the President a recommended budget for programs,

8 services, and benefits provided by the United States

9 to members of the Tribe because of the status of

10 those members as Indians (including funding rec11 ommendations for the Tribe that are based on the

12 determination and budget described in paragraph

13 (1)) for inclusion in the annual budget submitted by

14 the President to Congress in accordance with section

15 1108 of title 31, United States Code.

16 ‘‘SEC. 6. JURISDICTION.

17 ‘‘(a) IN GENERAL.—Except as provided in subsection

18 (b), the State shall exercise jurisdiction over all criminal

19 offenses that are committed on, and all civil actions that

20 arise on, land located in the State that is owned by, or

21 held in trust by the United States for the benefit of, the

22 Tribe or any member of the Tribe.

23 ‘‘(b) TRANSFER OF JURISDICTION.—

24 ‘‘(1) IN GENERAL.—After consultation with the

25 Attorney General, the Secretary may accept, on be-
10

9

•S 420 IS

1 half of the United States, any transfer by the State

2 to the United States of all or any portion of the ju3 risdiction of the State described in subsection (a).

4 ‘‘(2) AGREEMENT.—A transfer of jurisdiction

5 under paragraph (1)—

6 ‘‘(A) shall be subject to an agreement en7 tered into by the Tribe and the State relating

8 to the transfer; and

9 ‘‘(B) shall not take effect until at least 2

10 years after the date on which the agreement is

11 entered into.

12 ‘‘(c) NO EFFECT ON INDIAN CHILD WELFARE ACT

13 AGREEMENTS.—Nothing in this section affects the appli14 cation of section 109 of the Indian Child Welfare Act of

15 1978 (25 U.S.C. 1919).

16 ‘‘SEC. 7. AUTHORIZATION OF APPROPRIATIONS.

17 ‘‘There are authorized to be appropriated such sums

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

Æ
11

The CHAIRMAN. The act of 1956, as I understand it, was both a

recognition act and also a termination act at the same time. 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, Congress instead basically terminated

it. Also, in looking at some of the notes that have been provided

through staff, I noticed that there have been a number of times

that the Lumbees have been before Congress, going clear back to

the 1870’s, so this is not the first time they have been here on this

issue.

It is an undisputed fact, I believe, that the Lumbees descended

from an historic Indian tribe, and their current situation in terms

of housing, health care, and education is very, very poor. I have a

number of areas that I would like to explore with the witnesses,

and certainly appreciate Senator Dole’s leadership on this issue

here in the Senate.

With that, I would like to refer to my colleague and the vice

chairman, Senator Inouye, for any opening statement he may have.

Senator INOUYE. Thank you very much, Mr. Chairman.

STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM

HAWAII, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

Senator INOUYE. Unfortunately, I have another hearing scheduled for this moment, but I wanted to be here to welcome Senator

Dole and the members of the Lumbee Tribe who have waited so

very long for this day.

For more than a century, the Congress has been deliberating,

sometimes actively, sometimes not, on whether to extend Federal

recognition to the Lumbee Tribe. The first time Congress had occasion to address the status of the Lumbee Tribe was shortly after

the State of North Carolina extended formal recognition to the

tribe in 1885. A few years later, in 1888, the tribe submitted its

first petition to the Congress for recognition and assistance. The

Congress referred the tribe’s petition to the Department of the Interior and the Commissioner of Indian Affairs ultimately denied

the tribe’s request for funding to support the education of tribal

children; 11 years later, following the Commissioner’s determination, the first bill to appropriate funds for the education of tribal

children was introduced in the Congress. Again, the Interior Department recommended against Federal assistance for the tribe,

and thereafter in 1914 the Senate directed the Interior Secretary

to investigate the condition and the rights of Lumbee Indians and

to provide a report to the Congress.

Mr. Chairman, I will not go into the rest of the history of the

tribe’s valiant and persevering efforts to achieve Federal recognition. I am certain that will be done by Senator Dole and the very

capable witnesses who are here this morning. I just wanted to assure the leadership and the members of the tribe that I fully support your bid for Federal recognition, and I will do everything that

I can to assist Senator Dole and Congressman McIntyre in securing

the passage of S. 420.

I thank you very much, Mr. Chairman.

The CHAIRMAN. Thank you, Senator Inouye.
12

I might tell you, since this is the first time you have appeared

before our committee Senator Dole, Senator Inouye and I have almost always spoken with one voice in our support for Indian people

in this country. His guidance to me before I became chairman in

the years he was the chairman have been just invaluable to me.

So I certainly appreciate his endorsement of this bill and his support.

With that, why don’t you go ahead?

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

NORTH CAROLINA

Senator DOLE. Thank you very much, Mr. Chairman, for holding

this important hearing today. You have provided such strong leadership on issues concerning Native Americans, and you have truly

been a visionary in this area, and all have benefitted from your

commitment, your perseverance, and your dedications. So thank

you for all that you do.

Let me thank Ranking Member, Senator Inouye. You have been

a champion as well, working for the betterment of your own State’s

native people and improving the lives of all Native Americans. I am

deeply grateful to you both, and it is a privilege to serve with both

of you in the U.S. Senate.

I certainly want to thank the members of the Lumbee Tribe who

have traveled here in the face of Hurricane Isabel. We meet today

to focus on an issue that I made a top priority once I arrived in

the Senate, the terrible injustice that has been done to the Lumbee

Indians. Full Federal recognition for this tribe has been unfairly

denied for decades. We have a chance, Mr. Chairman, to right this

wrong in the United States Senate. I am passionate about this

matter, the subject of the first legislation I submitted as a U.S.

Senator, the bill before us today.

In visiting with the Lumbees and the residents of Robeson County, where most Lumbees live, one occasion in particular stands out

in my mind, a rally earlier this year with Congressman Mike McIntyre, for whom I have great admiration. It brought together the

whole community with the common goal of getting the Lumbees

the recognition they rightfully deserve. I am so impressed with the

determination of the Lumbees. They are a people of great pride and

I am in awe of their steadfastness on this issue, even after years

of disappointments. Spending time with them has invigorated me

in my effort to end this injustice.

Mr. Chairman, for more than a century the Lumbees have been

recognized as American Indians. North Carolina formally recognized the tribe in 1885. It was just 3 years later, in 1888, that the

tribe began what would become a long quest for recognition and assistance from the Federal Government. 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.

There are more than one-half dozen instances when legislation

was introduced, legislation which remained inactive or was passed

by only one body. Finally in 1956, Congress passed the Lumbee bill

which recognized the tribe, but there was a caveat which brings us

to this hearing today. That legislation denied the tribe the benefits
13

and privileges that every other federally recognized tribe enjoys.

This discrimination must end. The Lumbees deserve full recognition for their tribe, not a partial nod that ignores the history and

the efforts of so many ancestors.

I introduced S. 420 as my first bill in the U.S. Senate because

it is the right thing to do. It is the fair thing to do. This legislation

will reverse that 1956 decision by Congress denying full recognition. Passage will allow the tribe to receive much-needed assistance

in areas like education, health care, and economic development.

I know there are those who have argued and will do so again

today that the Lumbees should go through the Bureau of Indian

Affairs [BIA] for Federal recognition. That process is reserved for

tribes whose legitimacy must be established. That is not the case

with the Lumbees. In fact, the legitimacy of this tribe has been established time and time again, dating back to the late 1800’s. The

Federal Government has already spent the money and concluded

that the Lumbees are an Indian tribe descended from the historic

Cheraw Indians. There is no need to waste the tribe’s or the Government’s time and money again. Congress has never passed a special statute to send a tribe to the administrative process.

It has also been documented by the General Accounting Office

that getting through the BIA can take years. If I may quote from

that 2001 GAO report:

Because of weaknesses in the recognition process, the basis for BIA’s tribal recognition decisions is not always clear, and the length of time involved can be substantial.

That report says it may take up to 15 years to resolve completed

petitions, 15 years. The Lumbees have already waited far too long.

It is wrong to impose yet another lengthy delay on this tribe. It has

been over 100 years, Mr. Chairman. Let’s not make them wait another 15 years

Let us do what is fair, what is right, to resolve this injustice.

This tribe with 53,000 members is the largest tribe east of the Mississippi and the largest non-federally recognized tribe in the entire

United States of America. The Lumbees have contributed so much

not just to North Carolina’s heritage, but to our entire Nation.

They deserve full recognition now.

For weeks, I have heard about the excitement building among

the Lumbees because of the opportunity to come here and to make

their case once again. I spoke earlier of the Lumbees’ dedication to

this issue and how their passion continues to inspire me. Among

us today is Emma Lee Locklear whose grandfather, Hezekiah

Locklear, signed the petition for Lumbee recognition in 1888.

Emma is here to continue the family’s tradition of fighting for the

rights of Lumbees, and I am determined to fight with her for what

is right. I want to ask Emma to stand 1 moment so that we can

recognize here.

[Applause.]

Senator Dole. I urge this committee, Mr. Chairman, to act now.

Pass S. 420 so that Emma’s work and that of her grandfather so

many years ago will not have been in vain.

Congressman Mike McIntyre is a dear friend and colleague from

North Carolina who is sponsor of the Lumbee bill in the House.

Mike has been such a champion of the Lumbee cause and has done
14

an outstanding job in bringing all the parties together on this. I am

so very pleased to work with him.

Following Congressman McIntyre and Congressman

Faleomavaega, you will hear from three additional individuals who

are truly dedicated to the cause of the Lumbees. Milton Hunt has

become a dear friend through our work on recognition for the

Lumbees. He is chairman of the tribe and mayor of Pembroke, and

has led the way in rallying the entire community around full recognition for the Lumbees. Arlinda Locklear is an attorney with Patton, Boggs and is a nationally recognized expert in the area of Indian tribes. She became the first Native American woman to appear before the U.S. Supreme Court in 1984, and she is a member

of the Lumbee Tribe. And Dr. Jack Campisi is an expert on

Lumbee issues after having spent long hours researching the

Lumbees while living among them, right there in Robeson County.

He is a professor at Wellesley College and has done extensive research on tribal communities. They will answer any technical questions that you may have.

Again, Mr. Chairman, thank you very much for the privilege of

being here today. Thank you.

The Chairman. Thank you for that very fine statement. I certainly commend all the people that have come all the way from

North Carolina. I was watching the Weather Channel just a little

while ago and it does not look good for the Outer Banks and further inland, too.

We will now go to Congressman Mike McIntyre. Thank you for

appearing, Mike, and we will then continue with Eni

Faleomavaega.

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

FROM NORTH CAROLINA

Mr. MCINTYRE. Thank you, Senator.

Mr. Chairman, Ranking Member Inouye, and members of the

committee, thank you for the opportunity to testify before you

today regarding Federal recognition for the Lumbee Indians. And

a special thanks to my friends and North Carolina colleagues, Senator Dole and Senator Edwards, and their staffs for their work and

leadership on this critical issue. I especially thank Mrs. Dole for requesting this hearing so that we could move ahead on this process.

I am also grateful to my colleague Eni Faleomavaega, who for

many years has worked on Indian recognition efforts over in the

House.

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

Roanoke Island, right in the area where the hurricane is now headed, on the North Carolina coast, the Englishmen discovered Native

Americans. Included among those Native Americans were both

Cheraw and Pee Dee Indians who are direct ancestors of the

Lumbee Indians. Later, in 1888, the Lumbees made their first effort at gaining Federal recognition. For at least 500 years, Lumbee

Indians have been inhabitants of this land, and over half the time

that our country has been in existence, 115 of the last 227 years,

the Lumbee Indians have been seeking recognition. Over one-half

the history of our Nation, they have been seeking this recognition

and respect that they so well deserve.
15

As the largest tribe east of the Mississippi and the largest nonrecognized tribe in America, it is unfathomable to think that this

tribe of almost 55,000 people has never been fully recognized by

our own government. Mr. Chairman, indeed the time for Lumbee

recognition has come. I was born and reared in Robeson County,

North Carolina, the primary home of the Lumbee people. I go home

almost every weekend and have the high honor of representing approximately 40,000 Lumbees who live in my home county. In fact,

there are more Lumbees in Robeson County than any other racial

or ethnic group. The Lumbee Indians, many of whom are here in

the audience today, are my friends, many of whom I have known

all my life.

Senator, as you pointed out, so many have traveled today with

an impending storm coming, and will be leaving soon hereafter.

With the Senators’ indulgence, I would just like to honor them by

asking them to stand if they have come here today. Would all the

Lumbees please stand?

[Applause.]

The CHAIRMAN. Nice crowd.

Mr. MCINTYRE. Thank you very much.

The CHAIRMAN. I hope their journey home will be safe from this

impending storm.

Mr. MCINTYRE. Thank you, sir.

The Lumbees are important to the success of everyday life in

Southeastern North Carolina, and their contributions to our society

are numerous and endless, from medicine and law to business and

banking, from the farms and factories to the schools and the

churches, from government military and community service to entertainment and athletic accomplishments. The Lumbees have

made tremendous contributions on the county, State and indeed

the national level. In fact in my home county alone, my sheriff, my

clerk of court, registrar of deeds, chairman of the county commissioners, and indeed my representative in the State legislature, as

well as two of my district court judges and one of my superior court

judges are all Lumbee Indians.

Mr. Chairman, those contributions are being recognized by my

colleagues over in the House through their support of H.R. 898, legislation that I have introduced to grant the Lumbees Federal recognition. I am pleased to report today to the Senate Committee on

Indian Affairs that 225 members of the U.S. House, on a bipartisan

basis from every region, both sexes, every race, have cosponsored

Lumbee recognition. The last time a vote occurred on the floor of

the U.S. House to recognize the Lumbees, it had 20 sponsors.

Today, we have more than 10 times that number, in fact more than

11 times that number of cosponsors.

The Lumbee contributions are being recognized at home also by

both the public and the private sector. Mr. Chairman, from city

councils to county commissions to chambers of commerce to our

local medical center, to other organizations throughout North Carolina, we have letters of endorsement and resolutions that have

been passed by these public and private bodies to seek recognition

for the Lumbees.

Mr. Chairman, in conclusion let me urge this committee, and in

fact all of the U.S. Congress, to proceed with recognition for the
16

Lumbee Indians. Justice delayed is justice denied. For too many

years there have been too many delays. As you will hear from the

next panel that will follow Mr. Faleomavaega, the evidence is clear,

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

decency, yes to fundamental fairness, yes to respect, yes to honor,

indeed yes to Federal recognition.

It is time for discrimination to end and recognition to begin.

Thank you for this opportunity to testify. Mr. Chairman, I look

forward to working with you, my colleagues Mrs. Dole and others

here in the Senate, and also with this committee, with Mr. Edwards of North Carolina, with my colleagues from North Carolina

and the other sponsors from across the Nation, for this long overdue recognition.

May God grant that justice will finally be done, and with your

help I am confident it will.

Thank you, Mr. Chairman.

[Applause.]

The CHAIRMAN. Thank you.

Congressman McIntyre, where is the House bill now? What is

the disposition of the bill?

Mr. MCINTYRE. It is pending in the House Resources Committee.

The CHAIRMAN. It has not been heard yet?

Mr. MCINTYRE. Not yet, sir. You are first. [Laughter.]

The CHAIRMAN. We have a number of letters of support, and you

mentioned some of the support from people who are in office. I

know Senator Edwards has been rather busy lately, but I asked

staff before we came in if we have anything from him. We do not

have anything on record. You might ask him if he would submit

a letter of support for the committee for our records.

Now, we go to a really terrific friend of mine, Congressman

Faleomavaega. A lot of people think that I am the only Native

American around here, but he is an honest-to-gosh Native American, too, being a chief of the Samoan Tribe. He has always been

very active in the Native American Caucus, and someone we could

always rely on to help Indian people.

Eni, nice to see you here.

STATEMENT OF HON. ENI FALEOMAVAEGA, U.S. DELEGATE

FROM AMERICAN SAMOA

Mr. FALEOMAVAEGA. Mr. Chairman, I thank you for that kind

recognition. There is probably a sense of curiosity from some of the

people here in the audience as to what in the world a member of

the Samoan Tribe is doing here, living 10,000 miles away from

Washington, DC.

First of all, Mr. Chairman, I want to express my most sincere appreciation to the leadership that Senator Dole and her colleagues

have shown, especially to my good friend and colleague, Mr. McIntyre.

Excuse my being very emotional about this issue. For the past

12 years I have had the privilege of working very closely with the

members of the Lumbee Nation. I have felt such disappointment

over the years, feeling that I had failed in my efforts in trying to

erase the tremendous injustice that has been done to the Lumbee

Nation.
17

Mr. Chairman, I believe it is important to note that the policy

of the United States has been terribly inconsistent with regard to

the first Americans, the original inhabitants of this Nation. Our

first policy was to do battle with them. General Sheridan epitomized the prevailing opinion at the time in 1869 when he said,

‘‘The only good Indians I ever saw were dead.’’

Our next policy was that of assimilation. During this period, the

United States attempted to make Indians part of mainstream

America, forcing the Indians to relinquish ties to their cultures and

their way of life. Since the 1950’s, this country adopted the policy

of termination, followed by reinstatement of the current policy of

administrative recognition.

Throughout this entire period, the Lumbee have fought for Federal recognition, having submitted about 14 petitions. This is the

15th time now, Mr. Chairman. I hope that we will finally put this

matter to rest for this Nation that has tried in every possible way

to comply with our regulations and rules. For over 100 years they

have been denied the recognition that they so deserve.

I should also mention that many of the Lumbee men and women

serve honorably in the military. They have spilled their blood and

have died in defense of this Nation, and still the Congress and the

Federal Government has refused to give them the full recognition

as they deserve. There may be some members of the Administration, Mr. Chairman, that will say that the Lumbee people have not

complied with the rules and regulations that have been established

in the 1970’s. Let me tell you something. We held oversight hearings about 7 or 8 years ago about the current policy of recognition

as is done by administrative procedure. It is not done by congressional statute. I will never forget the day that even the man who

wrote the regulations on administrative recognition of Native

Americans testified and confessed that even he would not have

been able to provide any sense of reasonableness and fairness as

to how an Indian tribe could be recognized through the current administrative procedures.

I must say, Mr. Chairman, recognition is long overdue. Again, I

cannot thank Senator Dole and my good friend Mr. McIntyre

enough for their tremendous hard work in bringing this legislation

forward on a bipartisan basis. We must also remember that the

Congress still has the ultimate authority and its own discretion as

to whether or not to grant Federal recognition to any tribe that petitions the Congress.

I think this is a very historical day for the Lumbee people. I sincerely hope, Mr. Chairman, that your committee will give favorable

consideration to this legislation, as we on the House side will do

everything we can to make this year truly a year rectifying a history of pain and suffering. It is bad enough to say that you are not

an Indian, a first American, but when you are subjected to full examinations to say what kind of teeth you have in order to determine whether or not you are Indian, it is the most insulting thing

that I have ever heard. Some of the Lumbee people have had to

testify in our committee that these are the kinds of procedures that

they had to go through. Where do you get the money to pay the

attorneys and the anthropologists? It is unbelievable what we have

done in the recognition process. I sincerely hope, Mr. Chairman
18

and I look forward in working with you on this so we can improve

the current procedures. Maybe we have to do it statutorily and not

by the administrative process.

With that, Mr. Chairman, again I want to thank Senator Dole for

the tremendous leadership that she has shown in working on this

on a bipartisan basis. This is not a partisan issue. This is not a

Republican or a Democrat issue. This is an issue of doing something about what has been wrong for these people. They deserve

recognition, Mr. Chairman, and I sincerely hope that your committee will give favorable consideration to this proposed bill.

Thank you, Mr. Chairman.

The CHAIRMAN. Thank you, Eni.

[Applause.]

The CHAIRMAN. This is not a partisan committee, either. We

pride ourselves in making sure that it is non-partisan. You know

as well as I do, being here a long time, this is a tough place, but

I have to take exception to one statement you made in your discourse there. Nobody has ever believed you have ever failed Indian

people. Your efforts are well known to them and well known to this

Congress, too. So I want to correct that for the record. You have

been an absolute stalwart leader of the issues here.

As I mentioned before, you are certainly welcome to sit at the

dais or stay, depending on your schedule. We will now go to Aurene

Martin, the principal deputy assistant secretary of Indian Affairs

from the Department of the Interior.

Ms. Martin, welcome before the committee, a former staffer here

on the committee. We still miss your hard work when you were

with us here. I understand we now have a nominee that we will

be hearing shortly for the assistant secretary position, but I know

that you have done a terrific job as the acting assistant secretary

and will continue to do so until there is a new appointee.

With that, why don’t you go ahead and proceed.

STATEMENT OF AURENE M. MARTIN, PRINCIPAL DEPUTY ASSISTANT SECRETARY FOR INDIAN AFFAIRS, DEPARTMENT

OF THE INTERIOR

Ms. MARTIN. Thank you. Good morning, Mr. Chairman. My name

is Aurene Martin and I am the principal deputy assistant secretary

of Indian affairs at the Department of the Interior.

I am here today to present the views of the Administration on

S. 420, the Lumbee Acknowledgement Act of 2003. The recognition

of a sovereign is one of the most solemn and important responsibilities delegated to the Secretary of Interior. Federal acknowledgement of an Indian tribe establishes the government-to-government

relationship between the United States and the tribe and carries

with it certain immunities and privileges. It also establishes responsibilities for the Department of the Interior with respect to the

tribe.

The Department has promulgated rules which outline the process

that must be followed and has established criteria that a petitioner

must meet to become acknowledged. In order to become acknowledged, a petitioner must meet seven criteria. The petitioner must

demonstrate that it has been identified as an American Indian entity on a substantially continuous basis since 1900. The petitioner
19

must also 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, the petitioner must demonstrate that it has maintained

political influence or authority over its members as an autonomous

entity from historical times to the present. The petitioner must also

provide a copy of the group’s present governing document, including its membership criteria. The petitioner must also demonstrate

that its membership consists of individuals who descend from an

historical Indian tribe or from a group of historical Indian tribes

that combined and functioned as a single autonomous political entity, and provide a current membership list.

The petitioner must also show that the membership of the petitioning group is comprised principally of persons who are not members of any acknowledged North American Indian tribe. Finally,

the petitioner must also demonstrate that neither the petitioner or

its members are the subject of congressional legislation that expressly prohibits, terminates or forbids the Federal relationship.

If a petitioner presents evidence which meets all seven of these

criteria, it will be acknowledged.

While Congress clearly possesses the power to recognize tribes,

the Department has traditionally opposed congressional attempts

to recognize tribal groups, largely because the criteria and process

the Department has established provide for thorough analysis and

deliberation and consistency in decisionmaking.

Unfortunately, the Lumbee are unable to avail themselves of the

Department’s acknowledgement process because they have been

barred by participation in Federal programs designed to serve Indians by the Act of June 7, 1956. That act, while clearly identifying

the Lumbee as Indian persons, specifically prohibited them from

accessing services and statutes available to Indians because of

their status as Indians.

Because the Department has interpreted this law as forbidding

them from participating in the Federal acknowledgment process, it

recognizes that some legislation is needed, given the unique status

of the Lumbee. Such legislation could authorize the Lumbee to participate in the Department’s acknowledgement process and the Department stands ready to assist in drafting such legislation.

If, however, Congress determines to recognize the Lumbee legislatively, there are a number of issues the Department believes

should be addressed. The Department is currently devoting a great

deal of time and effort to effecting trust reform and participating

in litigation whose very subject is the trust relationship. Both the

Department and the courts are attempting to define the trust relationship and the specific duties and responsibilities of the United

States with regard to tribes. Much of the confusion over the role

of the United States as trustee stems from the lack of clear guidance as to what the exact roles and responsibilities of both the

trustee and the beneficiary are.

The Department, therefore, recommends setting out the details of

this relationship from the time it is created, either through legislation, or through some other trust instrument.

Also, this bill designates Robeson County as the tribes reservation and several surrounding counties as a service area. Congress
20

has typically identified service areas for a tribe while the initial

reservation is identified later by parcels of land acquired in trust

on behalf of the tribe. While S. 420 specifically confers jurisdiction

on the State within Robeson County, the reservation designation

still raises some issues with respect to the ability of the tribe to

zone in the county, make other land-use decisions, and exercise an

ability to tax within the county.

Finally, the Department has concerns with the provision requiring the secretary to verify tribal membership. In our experience,

this is a time-consuming and work-intensive process. It has taken

several years to complete with even smaller groups. Typically, it requires a review of every individual’s genealogical history, tracing it

from the present back to a person who was a member of the historical tribe from which the person is descended.

In the 1980’s, the Department received a document identifying

the membership of the Lumbee at over 27,000 persons. Current estimates place the membership in excess of 40,000. The Office of

Federal Acknowledgement estimates, based on our current staff

levels and the number of persons involved in the membership, that

verification of the membership will take several years and that it

cannot be effected in less than 1 year.

The Department is willing to work with the committee to work

out these issues. At a minimum, however, we support the amendment of the 1956 Act to authorize the Lumbee to participate in the

Department’s acknowledgment process.

This concludes my testimony this morning. I have provided a

written statement which I would request be made part of the

record.

The CHAIRMAN. Without objection, your complete testimony will

be in the record.

[Prepared statement of Ms. Martin appears in appendix.]

The CHAIRMAN. Let me ask you a few questions, if I may, before

you have to leave.

Have you visited this area, Robeson County, yourself by any

chance, what the Lumbees would call their homeland?

Ms. MARTIN. No; I have not.

The CHAIRMAN. I probably ought to ask them. So you do not

know how much of that land is in private ownership now, would

you?

Ms. MARTIN. I think that all of it is in private ownership, and

none of it is in trust.

The CHAIRMAN. Well, I will ask them, because I was interested

in knowing if it is non-Indian-owned land or Indian-owned land or

what, but I will ask them about it.

Now, as I understand your testimony, as Congressman McIntyre

said, what we are basically dealing with are the regulations, not

statutes. As I understand you, they cannot go through the BAR

process because they were barred from that by the 1956 Act. Is

that correct?

Ms. MARTIN. Yes.

The CHAIRMAN. So it seems to me we have to do one or two

things, either change the BAR or exempt the tribe, one of the two,

otherwise they are never going to get from A to B. We have to

make some changes.
21

I introduced a bill, S. 297, that you might want to look at. Hopefully, we are going to do at least one hearing on it before we adjourn this year. Basically, that is what it does is try and ferret

through some of the problems with BAR and see if we can’t streamline it to make it a little easier for those people who have just run

into this brick wall of recognition.

From a historical perspective, can you give the committee perhaps some background on what legal implications there would be

if we passed this act?

Ms. MARTIN. The tribe has petitioned in the past to become a

tribe through the BAR process. I think by recognizing them legislatively, I have identified a number of concerns. Primarily, we have

some concerns with regard to what the jurisdictional implications

might be, although the bill clearly confers criminal and civil jurisdiction on the State. There are a number of powers that as a sovereign and recognizing the tribe as a sovereign, they might still exercise within the county. It is unclear whether the intent is there

to allow the tribe to go ahead and exercise those powers or not.

The other concern we have, and this is with regard to our ongoing efforts at trust reform, one of the most confusing things about

the trust relationship is that it is not identified in a single document. The parameters of it are not laid out as one, two, three, or

A, B, C. In creating that new relationship with any tribe, one of

the things that we think is important moving forward is to try to

identify the parameters of that relationship when we create it.

Finally, we think that there is a significant amount of work that

needs to be done with verifying the membership and doing research

with regard to the original historical tribe from which the members

are descended. That will be a considerable amount of work as well.

The CHAIRMAN. Okay, thank you.

I understand that in 1988 and again in the 1950’s, one of the rationales, and I know this was long before your tenure, one of the

rationales to deny recognition was what was called insufficient

funds, which in this day and age, it seems to me that insufficient

funds should not fly in the face of justice. We have funds to rebuild

a nation in Iraq. It seems to me we ought to be able to find some

funds.

[Applause.]

The CHAIRMAN. I might mention to the audience you are all certain welcome here, but I would ask you to keep the cheering, boos

or anything else down to a minimum. We try to get through this

as well as we can. I just mentioned that because I know we spend

a lot of money on nation rebuilding.

Does the BAR criteria include a requirement that the United

States have sufficient funds?

Ms. MARTIN. No; the BAR criteria simply sets out a regulatory

process by which we recognize tribes.

The CHAIRMAN. I see.

Has the United States ever refused to recognize a newly independent state overseas or any foreign government because of insufficient funds? I will answer it for you. No. We have not. Has any

other tribe that you know of been denied the process because of insufficient funds?
22

Ms. MARTIN. No; not that I am aware of. I think the unique circumstance here is that the Lumbee are a very large tribe. We estimate their membership to be around 40,000 to 50,000.

The CHAIRMAN. I even heard the number 55,000 a while ago.

Along that line, do you have any kind of an estimate about what

this would cost in terms of BIA, Indian Health Service, whatever,

the Federal Government should provide if this bill was passed? Is

there a ballpark figure of cost to the Federal Government?

Ms. MARTIN. We were not able to pull those numbers together in

time for today’s hearing, but the sheer numbers that we are talking

about would make the Lumbee the third largest tribe in the United

States. In the past, we have loosely estimated the cost of trying to

create a similar structure of services for the Lumbee at approximately 15 to 20 percent of then-existing budgets.

The CHAIRMAN. Was that 15 to 20 percent of the existing budget?

Ms. MARTIN. I do not have any documentation to support that at

this time.

The CHAIRMAN. Could you try to find some of that and provide

it for the committee, some of those numbers?

Ms. MARTIN. Yes, sir.

The CHAIRMAN. The BIA position in 1956, the last time the solicitor weighed in, I understand that the solicitor did recommend some

changes. Is that true, or do you know?

Ms. MARTIN. To the 1956 act?

The CHAIRMAN. Yes.

Ms. MARTIN. Yes; actually, the language that has been at issue

in almost every bill addressing the Lumbee was recommended by

the Department of the Interior, and that is the final clause in the

bill which prohibits the Lumbee from accessing services for Indians

based on their status as Indians.

The CHAIRMAN. Whenever we deal with a new tribe seeking recognition, we get into things you have touched on, jurisdiction, land

in trust, membership. It is always difficult for a newly recognized

tribe or even some that were terminated that we are trying to reestablish. Do you have any concerns dealing with rights granted

under S. 420 to the Lumbee Tribe to take land into trust?

You mentioned jurisdiction. I understand there could be a problem there.

Ms. MARTIN. The bill confers that jurisdiction on the State and

allows for the tribe to transfer, and the State to agree to transfer

jurisdiction back to the tribe. But again, I think our concern would

be with some of the other exercises of sovereignty that the tribe

may want to undertake once it is recognized.

The CHAIRMAN. And maybe last, I have heard numbers of 40,000

up to 55,000 members. Does the Department have any comments

on how they establish their base membership rule?

Ms. MARTIN. At the present time, we do not have a current copy

of the constitution or any of the documents that establish membership for the tribe. That would be something that we would have to

get and look at through the verification process, which as I stated

earlier, could take a significant amount of time.

The CHAIRMAN. Okay. I thank you. I have no further questions,

but Senator Inouye may, and if he does I am sure he will submit
23

them in writing. If you could answer those, we would certainly appreciate it.

Thank you for appearing today, Aurene.

Ms. MARTIN. Thank you very much.

The CHAIRMAN. We will now move to our only panel, that will be

panel two, Milton Hunt, chairman of the Lumbee Tribe; Jack

Campisi, the tribal historian of the Lumbee Tribe, North Carolina,

who resides in New York; Arlinda Locklear, tribal attorney for the

Lumbee; and Tim Martin, executive director of the United South

and Eastern Tribes, Inc.

We will proceed in that order. If you would like to submit your

complete written testimony, that will be included in the record. If

you would like to abbreviate your written testimony, that would be

just fine.

We will start with Chairman Hunt first.

STATEMENT OF MILTON HUNT, CHAIRMAN, LUMBEE TRIBE,

NORTH CAROLINA

Mr.HUNT. Thank you, Mr. Chairman.

I want to at this time ask you to enter this into the record.

The CHAIRMAN. It will be included in the record.

Mr. HUNT. I want to thank you for doing that. I want to thank

the committee for hosting this today and giving us some opportunity to come here and talk to you about our efforts on Federal

recognition for the Lumbee Tribe.

I also want to thank Senator Dole, who introduced our legislation

on the Senate side, and Congressman McIntyre on the House side,

and Senator Edwards and all the other cosponsors we have on the

House side.

We certainly appreciate all the efforts that they have made on

our behalf, and we look forward to working with them in the future. We certainly cherish their support.

I want to start out by saying that we have heard the year 1888

talked about here today a couple of times. I want to start back with

that and talk about it. In 1888, Everette Sampson, along with

other leaders in the Lumbee community, signed a petition and delivered it to Washington to ask for Federal recognition for our people. At that time, we were known as the Croatan Indians of Robeson County.

We also asked for educational help, because in 1887 the Indian

Normal School had been established. You must keep in mind from

1835 until 1885 in Robeson County, an Indian could not go to public school. We were barred from going to public schools. So we came

out of a 50-year blackout period in 1885 when the State recognized

us. But they appropriated only enough money to fund teachers for

2 years. So that was the reason that this group of people came to

Washington in 1888 to ask for help, not only for recognition, but

for help in our schools.

Those schools had been established to teach our kids and even

young adults, who would then go out in the community and teach

others to learn the basic skills. This was started with an appropriation from the State of $500, and teachers for 2 years. The tribe donated the land. They also raised the additional part of the money

to put the first building there. That is the beginning of UNCP,
24

which is now a university campus with 4,800 enrolled students

that are housed in Pembroke. That was the beginning of that university. It began as Indian Normal School to educate our Indian

students that did not have an opportunity for 50 years to be educated.

We have continuously been able to introduce, I have heard it

talked about 14 bills being introduced over the years to have us

recognized, but there have been nine studies. No study has ever

been done that came back that said that we were not Indians.

Every study is that. In the most demeaning study, which was the

last one done, when they came into the communities in the 1930’s

and they measured their cheek bones and the separation in their

eyes and so forth like that, that was a demeaning study that was

done on our people, and a lot of our people did not participate in

that.

So we have studies with that done. We have been studied to

death. It is time for action. We ask you to help us help ourselves.

We need recognition for the Lumbee Tribe. It is very simple. In

1956 when the Act was passed, they gave it to us in one hand and

they took it away in the other hand. I was a young fellow at that

time. I can remember. Pembroke is the center of the Indian activity

in Robeson County. It is a small town of about 3,000 people now,

but in 1956 we had a parade and a festival to celebrate the gaining

of Federal recognition, not knowing that it was being taken away

from us at the same time. We were very, very upbeat at that time.

Can you imagine what happened in the Indian community after

that? It was a complete let-down. There may be people in this

group here today that would attest to that.

Everette Sampson was my great-grandfather. He was one of the

48 signers of the petition in 1888, along with his father William

ahead of him. So a lot of our families have been involved. Many of

these folks that are here today to show their support for Federal

recognition, I am sure many of their families were involved in the

signing and helping to get Federal recognition started. We certainly

appreciate their efforts to come up here and support us at this

today. We are doing everything that we know how to do.

Like I said, we have been studied to death. We did everything

that we know to do. The year 1956 was a turning point. You must

remember that when Congress recognized us, then they took it

away from us, they did another tribe the same way at the same

time. Since then, the government has gone back and righted that

wrong, and they have since given that other tribe their recognition.

Don’t you think it would be fair for us to be recognized the same

way? That is all we are asking, for fairness. We want people to be

fair.

Our tribal government operates under a constitution now. We

have three parts of government. The government is working for us

and we are moving toward doing the things that we need to do to

help our people. We want to continue down that road of helping to

make sure that the Lumbees of Robeson and adjoining counties are

taken care of and that their needs and their efforts are looked at

and accepted. But we want to make sure that my grandchildren

will not be up here 100 years from now and saying their grand-
25

father came up here and talked about this. It is time that Federal

recognition for Lumbees came to pass.

So I would hope and pray that you would have it in your heart

to help us make sure that this happens for the Lumbee Tribe.

Thank you very much.

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

The CHAIRMAN. Thank you.

Some of us have it in our heart. We have to get it into everybody

else’s heart around this place.

Normally, we hear from the whole panel before we ask questions,

but Senator Cantwell is here, so I think I will just go ahead and

start asking a few one-by-one so that she can also participate in

case she has to leave.

Chairman Hunt, let me start with a couple of questions for you.

You mentioned you have been studied to death. It is a sad commentary, unfortunately, with the American government that sometimes they killed Indians to do the studies afterwards. You probably know that the history of the U.S. Government toward Indian

people has not been, you might say, of a sterling character.

You did mention another tribe where their status was taken

away and then recognition was given back. I asked who that was?

Tiwas in Texas. Yes, I am familiar with them. You mentioned that

your youngsters for 50 years did not have the opportunity to attend

any school, and that the State recognized the tribe in 1885. During

that 50-year time, how did you educate your youngsters?

Mr. HUNT. I think it was done basically on homesites. You had

teachers, people that may have set up a little classroom. Basically,

our people did not get educated. It is just that simple. We went

through a 50-year blackout period when there was not must education.

The CHAIRMAN. Do you have any idea what the tribal numbers

were in those days?

Mr. HUNT. I really don’t, it being 100 years ago.

The CHAIRMAN. I am always interested, very frankly, in Indian

people, the difficulty they find themselves in now between modernday types of teaching and traditional ways of teaching their cultural values. Do you know if during that 50-year time or even later

if the things that we consider traditional cultural values such as

language and dance and song and music and all the stories and all

that was kept alive?

Mr. HUNT. As a matter of fact, I can trace back, the last speaker

that we spoke our language. His name is Randall Locklear. He is

from out of my family.

The CHAIRMAN. That is a familiar name.

Mr. HUNT. We can attest to him in the early 1900’s. We have testimony to that fact, from some of his relatives.

The CHAIRMAN. Are there any documents now that have records

of what might be considered an original language?

Mr. HUNT. I can’t answer that. Arlinda will have that.

Ms. LOCKLEAR. If I may, Mr. Chairman.

The CHAIRMAN. Yes; please.

Ms. LOCKLEAR. We were studied by a well-known linguist in the

early 1940’s, Vine Deloria’s aunt, in fact, visited our community
26

and is said to have recorded certain words of the original language

of the Lumbee people.

The CHAIRMAN. There were several linguistic groups in American

Indians. What was it related to? Was it Siouan?

Ms. LOCKLEAR. We are Siouan speaking.

The CHAIRMAN. Siouan speaking.

Ms. LOCKLEAR. Yes, sir.

The CHAIRMAN. I understand from your testimony, your tribe

currently has a membership roll, and I have heard this number

from 40,000 to 55,000. How many members are there on the roll?

Mr. HUNT. Enrolled 54,000.

The CHAIRMAN. 54,000. And what is your criteria? Some tribes

have lineal descendancy; some have blood quantum. There are a

number of other ways.

Mr. HUNT. We have a source document requirement and a contact requirement.

The CHAIRMAN. Would you explain that to the committee? A

source document, what does that mean?

Ms. LOCKLEAR. If I may, Mr. Chairman?

The CHAIRMAN. Yes; go ahead.

Ms. LOCKLEAR. There are two basic membership requirements.

The source documents that the Chairman refers to consist of a set

of documents around the period of 1900 which identifies partial

lists of our members at that time. These include Federal Indian

census records and school records which are known by our community as the Blood Committee records. These committees were vested under State law with the authority to determine the eligibility

of children to enroll in all Lumbee schools. They maintained

records for that purpose. Those, plus church records, because most

of our churches are 100 percent Indian.

Those documents are the base documents from which an individual must prove descent to apply for membership.

The CHAIRMAN. So it is a little like the Cherokees, if they prove

descent it is not based on blood quantum, then. They just have to

prove descent?

Ms. LOCKLEAR. There is an additional requirement. We do not

have a blood quantum requirement because blood quantum records

have never been maintained on our people. However, there is a

tribal contact requirement. As that, as translated in our community, basically means an individual who applies must be known to

the community. His or her family must be in the community and

be known to the tribe or else that person is not allowed to enroll.

The CHAIRMAN. Wilma Mankiller of the Cherokees told me a few

years ago when she was chairman they were getting 1,400 requests

per month for enrollment with the Cherokees from people in Canada and Alaska and South America and everywhere else. Do you

have that problem?

Ms. LOCKLEAR. We have had similar problems. Yes, Mr. Chairman, there is a group in California that purports to sell Lumbee

Nation membership cards and they are not authentic.

The CHAIRMAN. Yes; back to the chairman, and since you already

chimed in Arlinda, you might wish to again, would you be agreeable to having the BIA consult with you in clarifying your member-
27

ship criteria and researching those who might be eligible for membership?

Mr. HUNT. I always turn to Arlinda and ask her.

The CHAIRMAN. Okay, let’s turn to Arlinda.

Ms. LOCKLEAR. There is one fundamental rule that would be very

important to us, Mr. Chairman, and that is as with all tribes we

would expect to have our right to determine our own membership

criteria respected by the Department. Given that rule, however, we

would be happy to work with the Department of the Interior to establish a process for the Department to verify that those individuals who are enrolled actually meet the tribe’s membership criteria.

The CHAIRMAN. I am told that the Lumbees are descended from

the Cheraw Indians, but at one time it appeared that they were related somehow to the Cherokees or the Croatans, and I am not

even familiar with that tribe. When did that change, or what is the

connection now between these other groups?

Ms. LOCKLEAR. Those were designations under State law, Mr.

Chairman. Those were not names that the tribe itself adopted. The

tribe was first recognized by the State in 1885 by the name of the

Croatan Tribe. That was changed in 1913 to the Cherokees of

Robeson County. The tribe itself was dissatisfied with that name

and sought a name change. A referendum was held in 1952 among

the Lumbees, and for the first time the tribe itself indicated to the

State that it wanted the name ‘‘Lumbee’’ to be adopted. As a result

in 1953, legislation to do that was enacted by the State.

The CHAIRMAN. Most tribes, they don’t call themselves what everybody else calls them, as you know.

Ms. LOCKLEAR. That is correct.

The CHAIRMAN. In the other world, they call them the Sioux, but

the Sioux people all themselves Lakota, as you know. Our people

call themselves Sisitas, not the Cheyenne. Is ‘‘Lumbee’’ a name

that is from a tribal reference?

Ms. LOCKLEAR. The simplest way to refer to that is to point to

the picture here. This is a picture of the Lumber River where our

people have always resided.

The CHAIRMAN. The Lumber River.

Ms. LOCKLEAR. The Lumber River. The name ‘‘Lumbee’’ is derived from that. In early colonial records, the Lumber River was

known as Drowning Creek. It was changed by State law in 1807

to the Lumber River. The earliest documentation of the Cheraw

Tribe shows them residing on Drowning Creek where the Lumbee

people still reside today under the name ‘‘Lumbee.’’

The CHAIRMAN. Do the Lumbee have a word in their own language for themselves, like with some tribes? If you interpret what

they call themselves to English, like the Dinae for Navajo, it means

‘‘the people.’’ Is there a word for that in Lumbee?

Ms. LOCKLEAR. We have no surviving language. Unfortunately,

we have lost those words.

The CHAIRMAN. I understand. Unfortunately, a lot of other tribes

have, too, as you probably know.

The Lumbees adopted a constitution in November 2001, just 2

years ago, and yet apparently they have been operating as some

kind of a political unit. Why so late in adopting a constitution?
28

Go ahead, Mr. Chairman.

Mr. HUNT. I will have to give you a long answer to that, Mr.

Chairman.

The CHAIRMAN. Can you do that in short sentences? [Laughter.]

Mr. HUNT. That came about through several methods. We had an

organization that represented Lumbees for about 30 years. The

new tribal government was formed by a commission and a referendum of the people in 2000. We had an election of all our people,

and elected a new tribal government. I am the first elected chairperson of that committee.

It was just a long time coming.

The CHAIRMAN. In that tribal constitution, you have an independent court, as most tribes do.

Mr. HUNT. We do. We have three branches of government, legislative and executive and judicial branch. We do.

The CHAIRMAN. I see. Let me move on a little bit. We know the

BAR process is really complicated, and in some cases takes years

to get through it. Earlier you heard me say we have got to change

the BAR process or go around it somehow. We have to do something about it. We know that. If the BAR process was made available to the Lumbees, would you be supportive of seeking recognition through that route, or have you kind of given up on them?

Mr. HUNT. Arlinda.

Ms. LOCKLEAR. It is more the latter, Mr. Chairman. We have had

this experience with the Department of Interior for more than 100

years now, and I dare say that this tribe would be recognized today

had it not been for the Department’s longstanding opposition to

recognition of the tribe.

Recently, the Department has even changed its position with regard to the ancestry of the Lumbee people. In 1934, the Department testified to Congress that the Lumbee people were indeed

Cheraw Indians. Now, the Department will say there needs to be

more documentation on that point. It seems to us it is a never-ending game of paper-chase with the Department and one that the

tribe is not prepared to engage in any longer.

The CHAIRMAN. I see. If you were provided recognition of, let’s

take the higher number I have heard today, of 55,000 people, what

types of services provided by the Bureau or the IHS would you pursue? What is the most important to the tribal community?

Mr. HUNT. We are receiving some services now, particularly

housing.

The CHAIRMAN. From the Federal Government?

Mr. HUNT. Yes; we are. My policy on that, and I think I can

speak for the Council is, we would not want to be eligible for any

less than any other tribe would be.

The CHAIRMAN. Do you want a casino?

Mr. HUNT. That is not a problem with us right now. That is not

an issue. We started this journey 100 years before legislation.

The CHAIRMAN. It is not a problem with me either, because I

happen to support Indian gaming.

Mr. HUNT. Yes; That came about in 1988. That was exactly 100

years after we started our journey for Federal recognition. So that

is not an issue at this time for us.
29

The CHAIRMAN. Okay. I think I will yield to Senator Cantwell if

she has some questions before we go on to our next witness.

Senator CANTWELL. Thank you, Mr. Chairman. You may have

asked this prior, but it seems like a large attendance here today.

The CHAIRMAN. Yes; we introduced them and most of them have

come from North Carolina, braving the impending storm, to be her

for this hearing. A lot of them are members of the Lumbee Tribe.

Senator CANTWELL. Well, I hope you find safe harbor here in

Washington.

I have a couple of questions. Dr. Campisi.

The CHAIRMAN. The only one who has testified so far is Chairman Hunt.

Senator CANTWELL. Okay. Is it okay to ask questions of the rest

of the panel?

The CHAIRMAN. Would you prefer to hear them first? What is

your time?

Senator CANTWELL. For time, it would be good if I could.

The CHAIRMAN. Okay.

Senator CANTWELL. I have already had an opportunity to read

their written testimony.

The CHAIRMAN. Okay. Why don’t you go ahead and then I will

take testimony from them after and ask some of my questions after

you do.

Senator CANTWELL. Okay.

I was struck by your statement that you said that out of 28 tribal

petitions for Federal acknowledgement that you have worked on,

none have exceeded the Lumbee petition in documentation and evidence, from the perspective of a cohesive political community, as

well as the amount of information that can be documented. So I

wondered if you could elaborate on your statement, juxtaposed to

some of the other tribes that are seeking recognition.

Mr. CAMPISI. I have worked with the Lumbee for 20 years now.

There is an incredible amount of paper documentation on issues

that relate to a community, issues that relate to political continuity. There is an enormous amount of documentation relating to the

kinship system, to the membership. And in that 20 years of work,

I visited many of their churches. I went to many of their social

events. I attended many civic events, tribal events. I am struck by

the cohesiveness of the community.

I did not find, as I have found in other communities, sharp factional divisions as one might expect or sometimes do find. I found

differences of opinion, certainly, and that is a healthy thing, but I

never found a group anywhere near as large who had such a sense

of self, such a sense of direction, and such an understanding of who

they are and who others are. That is to what I was referring.

Senator CANTWELL. The BIA testimony there is a process in sequential logic that is if Congress wants to take action to deal with

the 1956 act that we could do that. To make sure that that had

good legal standing, one of the principles that we would have to address is the historical continuity of a unified community under that

one leadership and government. So as a historian looking at 28

tribes that are seeking a similar process, you have no concern

about our ability to do that?
30

Mr. CAMPISI. None at all. I think the tie to the Eastern Siouan

tribes is clear. I think the connection to the Cheraw is compelling.

I think the work done by John Swanton in the 1930’s and the research continued by Bill Sturtevant, Jim Merrill, and Ray

Fogelson, three eminent researchers, scholars, all confirm what

Swanton came up with in the 1930’s. We have more data now

available to us than Swanton did. So I do not see any legitimate

argument against the argument of dissent from Eastern Siouan

Tribes, particularly the Cheraw.

Senator CANTWELL. And how would you compare that to other

tribes that already have recognition?

Mr. CAMPISI. It is different in the sense that, there is a lot of serendipity operating. Some tribes were passed over; other tribes

formed treaties with the United States because of something they

had. I look at some of the Northeastern tribes that I have worked

with, and I think the argument of the Lumbees is as compelling

as those arguments are, that both Congress and the Department

of the Interior have recognized.

Senator CANTWELL. So you would say that they have as much

historical data and context as some already recognized tribes, and

maybe even more than some that have been recognized?

Mr. CAMPISI. I would say so.

Senator CANTWELL. So again, my point being that if Congress

chose to act dealing with the 1956 act we should not be concerned

about our historical findings as a precedent to move forward.

Mr. CAMPISI. You should not be concerned. I agree.

Senator CANTWELL. Chairman Hunt, I was curious also, the criteria that is listed for recognition. Have you seen that list of criteria of the BIA?

Mr. HUNT. Yes; I have.

Senator CANTWELL. There are a variety of criteria here, such as,

demonstrating the political influence of authority, providing a copy

of the governing documents. You believe that you are in conjunction with those criteria? There are seven.

Mr. HUNT. Yes; I do.

Senator CANTWELL. So again, it seems to me that we are back

to this 1956 act and that what Senator Dole is trying to do is address the fact that we are caught in this cohesiveness of having

met the criteria, having the historical context, but having a previous law on the books that is prohibiting us from moving forward.

Mr. HUNT. I think that is true.

Senator CANTWELL. So then it is a question of whether we have

the will to address that inconsistency that is in the 1956 act.

Mr. HUNT. I hope we have the will and the way.

Senator CANTWELL. I want to turn to Mr. Martin, if I could, because Mr. Martin I understand that you represent the United

South and Eastern Tribes, and have in the past had some written

testimony submitted to this committee in favor of special recognition, but now you, or some of the members, are in opposition. I am

trying to understand what the official position is of the United

South and Eastern Tribes.

Mr. MARTIN. As clarified in my testimony if you have read that,

is the latest resolution that you said did pass, and you said being

the intertribal organization representing 24 federally recognized
31

tribes, we traditionally have supported any Indian group that is

going through the Federal acknowledgement process. We have a

longstanding opposition to any tribe that wishes to circumvent that

system and be recognized legislatively.

Senator CANTWELL. Do you think that the Lumbee meet the criteria that are outlined in the current Federal law for recognition?

Mr. MARTIN. I am not an expert in that area to determine whether they meet that criteria or not. That is the reason we believe that

every Indian group should go through the Federal acknowledgement process. The Bureau of Indian Affairs in the infinite wisdom

of Congress realized that Federal recognition is a complex and tedious process that should not be entered into lightly. So therefore in

the wisdom of Congress, they deferred that to the BIA within the

Department of the Interior, who employ the experts that need to

review and analyze that comprehensive information.

I am certainly encouraged by the representatives of the Lumbees

of North Carolina that they believe that they can meet that criteria. If that is the case, then we, as our testimony says, we should

amend the bar that prohibits them from going through the administrative process. Let the information that they say exists to be reviewed by the experts so that they could be, if reviewed by those

experts and giving a positive determination, to be welcomed openarms by the other federally recognized Indian tribes of this country.

Senator CANTWELL. So you do not think that the 1956 act that

basically said that nothing in this act should make them eligible

for services shouldn’t be the lone determinant in deciding whether

they should get recognition?

Mr. MARTIN. No, ma’am; I think that as far as that, they should

go through the process and meet the criteria just as my tribe has,

and I can speak from that personally. I am a member of the Poarch

Band of Creek Indians. My tribe went through the process. It took

in excess of 20 years for us to go through that process. I cannot

in good conscience sit here and say that I should say a tribe just

should take their word for it and artificially bestow such a prestigious honor on that tribe as Federal recognition in there. We

went through the process. We believe every tribe should go through

that process.

I am encouraged by their statements today that they believe that

they can meet that criteria.

Senator CANTWELL. But did you have a previous law on the

books that had been a roadblock to allowing those criteria to be

judged in your favor?

Mr. MARTIN. No, ma’am.

Senator CANTWELL. So that seems to be one of the distinguishing

differences here is that perhaps this 1956 law, or at least if I read

the BIA testimony correctly, they are saying here is the information, but you have this little stumbling block, Congress. You have

something that is prohibiting this that you put on the books in

1956. I am not 100 percent clear why that was put on the books,

but it seems like BIA has to deal with that inconsistency. I am glad

to hear you say that they should be judged on that criteria because

my guess is they probably do meet the rest of the criteria. It is only

this inconsistency in the previous law that we have to resolve.
32

Mr. MARTIN. Yes, ma’am; as my testimony indicates, a House bill

has been introduced. I think it is House bill H.R. 1408 that would

correct that administrative procedure that bars them from going

through the administrative procedures for Federal recognition. Our

tribes are in support of that correction so that they can then avail

themselves to the BAR process and go through that process and be

judged and determined. Our tribes do not believe we should say if

they are Indian or not. That is something that is ultimately left up

to the Federal Government.

Senator CANTWELL. Thank you.

The CHAIRMAN. Would you yield for 1 moment?

Senator CANTWELL. Yes; thank you.

The CHAIRMAN. I am going to skip around and come back to your

testimony. I am sorry we kind of got a little bit astray.

Mr. Martin, you said, let me speak about a couple of tribes that

did get land claims, and I understand recognition came with some

of the land claims. That included the Alabama Coushatta, the Catawba, the Houlton Band of Maliseets and Mashantucket Pequot,

the Narragansetts, the Passamaquoddy, and the Penobscot. So I

understand all those did not go through the BAR process, but were

a land claim that was passed by Congress, but also got recognition

in the process.

My question is, did USET support any of those or oppose any of

those, or are you familiar with that?

Mr. MARTIN. I am not familiar with whether we took official

stances on those. It has always been our longstanding position that

a petitioning tribe should go through the Federal recognition process.

The CHAIRMAN. I see. Okay. Thanks.

Did you have any further questions?

Senator CANTWELL. No, Mr. Chairman; I just wanted to wish everyone here both good luck with the Isabel storm coming, and this

process.

The CHAIRMAN. We will try to move along here so you can get

out before it hits.

Senator CANTWELL. Hopefully we can resolve these last of the

issues and let the facts lay on the table so that this process can

take place.

Thank you.

The CHAIRMAN. Why don’t we go back now to any comments that

the panel would like to make. If you would like to abbreviate, we

will go ahead with Dr. Campisi. If you have already made some of

them in answers to other questions, you can skip those.

Mr. CAMPISI. Yes; I have. I will skip those parts.

The CHAIRMAN. Good.

STATEMENT OF JACK CAMPISI, TRIBAL HISTORIAN, LUMBEE

TRIBE OF NORTH CAROLINA

Mr. CAMPISI. Mr. Chairman and members of the committee, I

would like to thank the committee for giving me this opportunity

to address the committee on this important legislation. My name

is Dr. Jack Campisi. I have been a member of the Anthropology Department at the State University of New York, and most recently

on the faculty of Wellesley College in Massachusetts.
33

Since the publication of the Federal acknowledgement regulations in 1978, I have worked with 28 tribes on their petitions. I

conducted historical and field research with the Lumbees for nearly

20 years.

In my testimony today, I will describe the basis of my professional opinion that the Lumbee Tribe in North Carolina meets all

but one of the seven criteria specified for Federal acknowledgment

in 25 CFR 83, and in S. 297. A previous speaker has outlined the

criteria. There is no need for me to go through that. Let me say

that there is ample evidence in Federal, State, church, local, school

records, newspapers, anthropological and historical publications to

demonstrate that the Lumbees meet criterion A.

For criterion D there is a written constitution, and before that

we have detailed descriptions of the decisionmaking process. There

is no evidence that any of the present members of the Lumbee

Tribe are members of any federally recognized tribe. That is criterion F. That leaves four criteria: D, community; C, political; E,

tribal origins; and G, congressional termination.

On community, the regulations provide that this criterion can be

met by demonstrating that more than 50 percent of the tribe’s

members reside in an area nearly exclusively. The regulations also

provide that this criterion can be met if more than 50 percent of

the tribe’s married members are married to other tribal members.

In 2002, I conducted a systematic sampling of the tribal membership following a methodology used by the Branch of Acknowledgment and Research in another case. I drew a random sample of 1

percent from the tribal roll, a total of 514 names. This correlated

closely with the number of tribal members. I found that 65 percent

lived in the core areas in Robeson County, Pembroke, Maxton,

Rowland, Lumberton, Fairmont, St. Pauls, and Red Springs.

The CHAIRMAN. Did you do those studies on-site?

Mr. CAMPISI. Yes.

As to marriages, 70 percent of those who are married are married to another Lumbee tribal member.

Two points are important to mention in this regard. If the 70

percent of the tribal members are married to each other, it stands

to reason that at least this percentage was maintained in the past.

This is borne out by analysis of past Federal censuses going back

at least to 1850. Prior to 1850, you do not have the name of the

spouse, so it makes it more difficult.

Second, under the regulations, if the petitioner meets the high

standard for any time period under criterion B, the petitioner also

meets the requirement for criterion C, political, for the same time

period.

As to the political, criterion C, even though the Lumbee Tribe

can demonstrate high evidence under criterion B throughout its

history and thereby satisfy this criterion, it can also demonstrate

continuous political authority. For example, in 1885 the tribe was

successful in getting the State of North Carolina to recognize them

and permit them to establish their own school system, this, after

their refusal to send their children to segregated schools.

This picture here, number 2, is Aaron Locklear, identified as a

Croatan Indian in this photo from the Smithsonian archives. Aaron

Locklear was an influential leader in the early 1900’s
34

Picture number 3 is a picture that shows Anderson Locklear

School in 1910. Anderson Locklear was a highly respected educator

and religious leader. Locklear Hall on the campus of the University

of North Carolina-Pembroke is named for him.

The CHAIRMAN. Is that a grandfather or great-grandfather of

you, Arlinda? Which one? Great-grandfather?

Ms. LOCKLEAR. Not direct lineal, but collateral.

The CHAIRMAN. Yes.

Mr. CAMPISI. Photo number 4. In order to teach their children,

the tribe needed a teacher’s training school. This photo shows a

class at that school, the Normal school which later became part of

the University of North Carolina-Pembroke. This photo shows a

class. In it, it contains a petitioner from the 1887-88 State petitions.

The CHAIRMAN. It looks like a typical Bureau school. They cut all

their hair first thing, didn’t they.

Mr. CAMPISI. Yes; that is right.

Education is a primary tribal cultural value; 19th-century demands for schooling outstripped the resources available. This

caused the tribal leaders to appeal for support to Congress. As stated, no less than nine studies or attempts were made in requests

by Congress for information. These continued from the late 1890’s

to the 1930’s. All reported the existence of a Lumbee Tribe.

In 1936 at the direction of Felix Cohen and Dr. Carl Seltzer of

Harvard conducted a study under the provisions of the Indian Reorganization Act. Dr. Seltzer collected physical and ethnographic

data on 209 tribal members and found 22 met the half-blood standard. I do not condone Dr. Seltzer’s physical anthropological technique. It is outmoded and stupid. But the important part of that

is, this photo is of Duncan Locklear who informed Dr. Seltzer that

according to his grandmother, the last tribal member who spoke

the native language died in the 1890’s. Duncan Locklear’s grandfather was Allen Lowrie, a signer of the 1888 petition.

The State of North Carolina has continuously recognized the

Lumbee Tribe, although under different names. In 1953, the

Lumbees held a referendum on their present name, which they approved by an overwhelming majority.

Number 6. Finally, this is a scene of the Lumber River, which

until 1807 was called Drowning Creek. This is an area where the

majority of the Lumbee members live today. It is the same area

that the Cheraw Indians were located on in the 18th century. In

1934, the Department of the Interior asked Dr. John Swanton, ethnologist at the Bureau of American Ethnology and leading authority on Southern Indian tribes, determined the tribal origins of the

Indians of Robeson County. Dr. Swanton expressed his professional

opinion that the Lumbee Indians were of Eastern Siouan tribal origins, and particularly Cheraw.

This opinion was accepted by the Department of the Interior and

reported to Congress in 1934, along with a copy of Dr. Swanton’s

report. After reviewing the data available, Swanton’s findings have

been supported by such eminent scholars as Dr. William C.

Sturtevant, Curator of Ethnology at the Smithsonian Institution

and General Editor of the Handbook on North American Indians,
35

by Dr. James Merrill of Vassar College, historian and specialist on

Indians in the Carolinas.

The CHAIRMAN. Dr. Campisi, this is a lot of material in the

records here. Was all this used when North Carolina decided to

grant State recognition of this tribe?

Mr. CAMPISI. No.

The CHAIRMAN. It was not?

Mr. CAMPISI. It was not available.

The CHAIRMAN. Is it available now?

Mr. CAMPISI. It is available now.

The CHAIRMAN. Can our committee staff get a copy of that or review it or see that?

Mr. CAMPISI. Absolutely.

The CHAIRMAN. Thank you.

Mr. CAMPISI. By Dr. Raymond Fogelson, anthropologist at the

University of Chicago and specialist on Cherokee ethnology, and by

myself.

In conclusion, the evidence I have reviewed and presented in my

written statement and summarize today convinced me that the

Lumbee Tribe satisfies the first six of the seven criteria. However,

it does not satisfy criterion G, congressional termination. In view

of the long history of the Lumbee Tribe’s efforts to achieve Federal

recognition and the actions of Congress with regard to the 1956

legislation, S. 420 is the appropriate remedy, in my mind.

Thank you.

The CHAIRMAN. Thank you, Dr. Campisi. Your dedication to Indian Country and the long history that you have provided on many

occasions is well known to Indian people. You have been involved

in 28 BAR applications, is that correct, as I understand it?

Mr. CAMPISI. That is correct.

The CHAIRMAN. How many of those were successful in their bids?

Mr. CAMPISI. Let’s see. There was Gay Head, Wampanoags.

The CHAIRMAN. Are you at least batting 500?

Mr. CAMPISI. I would be batting 500 if they ever got around to

completing them. I would be better than 500 if they really followed

the regulations as I think they ought to.

The CHAIRMAN. You heard me ask earlier of the chairman that

as I understand it their governing document, their constitution,

was not adopted until just a couple of years ago. Maybe I should

have asked the chairman. Did they have any document that they

operated under before that?

Mr. CAMPISI. Not as such, but that is an excellent question. They

operated in a community sense through a network of kinship and

a network of religious organizations, and formed consensus through

these two.

The CHAIRMAN. But it was a system of governance of some sort?

Mr. CAMPISI. Absolutely. It was a clear system of governance. In

fact, the constitution convention originated through the churches.

The CHAIRMAN. Do you know if there are any records of that

form of governance, the meetings they had or things of that nature? Were there notes taken?

Mr. CAMPISI. Yes; there are records of meetings. There are

records of groups getting together for specific purposes, specifically,
36

for example, in the 1930’s. There are records of meetings in the 19-

teens.

The CHAIRMAN. Did you have an opportunity to review those

records or see them?

Mr. CAMPISI. Yes; I have.

The CHAIRMAN. Okay. And if you could also provide those for the

committee, we would appreciate that, too.

Mr. CAMPISI. We certainly will.

The CHAIRMAN. Thank you for your appearance.

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

And now we will move to Ms. Locklear. Anything you have already said once or twice, you do not need to repeat again for me.

Ms. LOCKLEAR. I appreciate that. I will keep my remarks brief.

I think the committee has covered a lot of material today.

STATEMENT OF ARLINDA LOCKLEAR, ESQUIRE, TRIBAL

ATTORNEY, LUMBEE TRIBE, NORTH CAROLINA

Ms. LOCKLEAR. Let me begin by saying once again how pleased

the Lumbee Tribe is to have the opportunity to make our case to

the committee, and how gratified we are by the overwhelming support and hard work of our sponsors that have gotten us here today.

That is Senator Dole, she has earned our everlasting gratitude;

Senator Edwards and Congressman McIntyre.

Also, a particular thanks to Delegate Faleomavaega. He has been

a long-time friend of the Lumbee people. As the chairman yourself

indicated earlier, he has not failed. He has helped us succeed. Had

it not been for his efforts and others like his, we would no be here

today. So we say ‘‘thank you’’ to them.

The CHAIRMAN. He is a good one.

Ms. LOCKLEAR. He is a good man.

I will keep my remarks brief. We have written testimony that

the chairman has already accepted into the record.

The CHAIRMAN. Yes; we will read that copiously.

Ms. LOCKLEAR. Probably the most effective thing I could do at

this point is to address some concerns that the chairman has raised

with other witnesses, to try to clarify the position of the tribe with

respect to other tribes and historically.

First of all, with respect to the uniqueness of the Lumbee Tribe,

that cannot be overstated. The committee has already heard today

that it is the largest non-federally recognized tribe in the country.

It has probably the largest documented legislative and administrative record of any tribe in this country. If you compile, as we have,

the legislative history of all of the hearings that have been held on

this tribe’s history since 1899, as well as the nine studies that the

Chairman referred to, you have literally hundreds of pages of testimony and documentation with regard to the history, ancestry and

community of the Lumbee Tribe. I dare say that these pages compare admirably to the extent of work that was done on Poarch

Creek and other tribes that have gone through the administrative

process.

In particular with regard to Poarch Creek, I think it is important

to observe for the committee that we were pleased to have the support of the chairman of the Poarch Creek Tribe in 1988 who in a

letter to this committee specifically noted that the Lumbee has a
37

unique set of circumstances that does justify special legislation for

the Lumbee Tribe, even though USET has repeatedly indicated its

support for the administrative process for other tribes.

There is one final circumstance, of course, which hovers above all

the rest of these, and that is the 1956 Lumbee Act. It is important

to place that act in its context. The Lumbee people, as other witnesses have testified, had been at this task since 1888. There was

a pattern to these bills, the nine or so bills that were introduced

in Congress between 1899 and 1956. This is the pattern.

Every occasion that the State of North Carolina amended its law

to recognize the tribe under a particular name or for a particular

purpose, the tribal leadership came to its congressional delegation

and sought an act of Congress to recognize the tribe on the same

terms that the State had recently done so. You see this with the

1899 statute, which followed on the heels of the 1885 State statute.

You see it with the 1911, 1913 statutes which followed immediately

on the heels of State recognition under different names. You also

see it in 1956 with the Lumbee Act.

The State of North Carolina had just 2 years before recognize the

tribe under the name of Lumbee, which was the first time the tribe

itself had asserted that this is the name we choose to be known by,

the place where we have always resided. After that act, then the

tribal leadership came to Congress with the exact same language,

the exact bill that had been passed by the State of North Carolina,

and asked its delegation to obtain Federal recognition upon the

exact same terms. That bill was introduced, but again at the request of the Department of the Interior, who once again objected

to recognition of the tribe, it was amended in the Senate to include

the termination language.

So what began as one more effort for recognition by the tribe,

ended in termination by the tribe at the hands of the Department

of the Interior.

As the chairman has testified, the tribe nonetheless thought it

had been recognized in 1956. The streets of Pembroke were closed

for celebration. There was a parade through town that many of our

elders today remember clearly. It was a joyous day for us. And it

was only with the passage of time over a few years that we began

to realize that once again we had been tricked. That happened conclusively in the early 1970’s.

As you have heard, the tribe had operated its own school system

under the law of North Carolina since 1885. By court order in the

early 1970s, the State of North Carolina was obliged to desegregate

its schools. The Lumbee Tribe thought our schools were exempt.

We were a recognized Indian tribe, after all. It was only when

Lumbee parents were arrested and charged with truancy for refusing to allow their children to be bussed and to be up their own separate school system that a Federal judge told the tribe, you are not

federally recognized, and because of that you are not allowed by

law to maintain your own school system. It must be dismantled.

We lost it. And that is when our modern effort to achieve Federal

recognition began again.

Those are the unique circumstances, we believe, that justify Congress taking the act of acting completely, completing what it start-
38

ed in 1956 with the partial recognition, finishing that act, and recognizing the tribe fully.

As other witnesses have testified, there has only been one other

tribe in the history of Federal Indian policy that has been in this

precise circumstance. That was what was formerly known as the

Tiwas of Texas. In 1968, this tribe, which had been long-recognized

by the State of Texas, came to the Congress with its own recognition bill. That bill was amended to include the same termination

language that appeared in the 1956 Lumbee Act. In fact, the legislative history of the 1968 Tiwa Act says specifically that that Act

was modeled upon the 1956 Lumbee Act.

The Tiwas were not happy with that situation either. It was done

at the height of termination policy and eventually Congress righted

that wrong. In 1987, the Congress passed the Ysleta del Sur Restoration Act, which extended full Federal recognition to the Ysleta

del Sur Pueblo, formerly known as the Tiwas of Texas.

I would like to observe also that there was no opposition to that

recognition Act by USET or many other tribes, even though they

now profess to have great regard for the administrative process.

The administrative process existed at that time. Congress in its

wisdom understood that a wrong had been done to the Tiwas of

Texas and righted it. For the same reason, Congress needs to realize that the Lumbees have suffered as second-class Indians since

1956. Congress put the Lumbees in that position and Congress

should take it out, as it did with the Ysleta del Sur and extend full

Federal recognition.

If I may, in summary, refer the committee to some of the major

terms of the proposed bill that Senator Dole has introduced, and

address a few of the concerns that have been raised by some of the

witnesses so far.

First of all, the Act does, as it should appropriately, present itself

as an amendment to the 1956 Lumbee Act. It would, as did the

1987 Ysleta del Sur statute, extend full Federal recognition to the

Lumbee Tribe; no more half-measures, but full Federal recognition.

Second, it also bestows civil and criminal jurisdiction on the State

of North Carolina, subject to a change in that situation should the

tribe, the State and the United States agree to do so on a negotiated basis.

This is important because it recognizes the longstanding relationship that the tribe has had with the State of North Carolina. It is

also important because we fear, given the size and concentration of

the Lumbee community, that were it not for that provision, there

may be a lapse of jurisdiction for some period of time. So that provision is important to us.

Those are the key provisions. Some question has been raised,

however, with regard to land acquisition provisions. Let me say a

few words in response to those concerns.

It is not the intent of these bills to establish a reservation per

se. There is language in the bill that refers to reservation boundaries, but for the purposes of the delivery of Federal Indian services. As the chairman knows, many of those services are tied to the

location of reservation boundaries. As part of the effort to ensure

that Lumbees are not again the subject of one-half measure, we put
39

language in the bill to make sure that the Lumbees are eligible for

those services, even though a formal reservation may not exist.

It is also important to point out that because of those differences,

the absence of a formal reservation, the extension of State civil and

criminal jurisdiction to the tribe, it is not fair for cost purposes to

compare this tribe to other tribes in a similar situation.

I think Ms. Martin for the Bureau testified that there may be a

15- to 20-percent participation by the Lumbee Tribe in the existing

BIA budget were they recognized. We think that is not an accurate

figure at all for a number of reasons. First of all, as I indicated,

the Lumbee Tribe because of the State civil and criminal jurisdiction and because of the absence of a formal reservation, would simply not participate in a number of the Federal Bureau of Indian Affairs programs that are geared for those purpose. Law enforcement

programs, trust responsibility programs would simply not apply,

and therefore those costs would not obtain or attach to this bill.

Second, Ms. Martin’s testimony does not take into account the

fact that the Lumbee Tribe presently participate in a number of

the programs that she is concerned about. By virtue of the tribe’s

State recognition, the tribe already participates in the HUD Indian

Housing Program. The tribe already participates in a number of

Department of Labor program, and the tribe already participates

in the LEHAP, or Low Energy Housing Assistance Program.

Those are costs that are presently being borne by the United

States Congress in the appropriations for Indian people, so that

would not be an added item that would come about as a result of

this bill. We think for those reasons the 15 to 20 percent estimate

is a gross exaggeration of the additional costs that the Congress

would bear because of this bill.

In sum, Mr. Chairman, I think you have heard today some eloquent testimony from our leadership. You have seen our people

here. You have sensed the excitement that they feel. We really

think that the time has come. We have been here long enough. We

have been studied enough times. The Congress knows us. The Department of the Interior knows us. We urge the committee to act

favorably as soon as possible on Senator Dole’s bill.

Thank you.

[Prepared statement of Ms. Locklear appears in appendix.]

The CHAIRMAN. Thank you, Arlinda. You are a fine speaker for

the tribe. Let me ask you just a couple of quick questions.

You are going to have to deal with land into trust at some point.

Is there a location now that the tribe wants as a land base?

Ms. LOCKLEAR. There has not been a tribal decision made on that

issue. There are areas that obviously suggest themselves. As I indicated, the tribe currently receives Indian Housing Program. There

are Indian housing units.

The CHAIRMAN. But there are no areas designated that you

would like to get as a land base?

Ms. LOCKLEAR. Not at this point.

The CHAIRMAN. Okay. And maybe the last question, you said

that the linguistic group of the Lumbees was Siouan.

Ms. LOCKLEAR. Yes.

The CHAIRMAN. Was that also the same linguistic group as the

Cheraw?
40

Ms. LOCKLEAR. Yes; the Cheraw were Siouan speakers.

The CHAIRMAN. I think that is all I need to ask you. Oh, maybe

one last question. This number of 40,000 to 55,000 I have heard,

what is it? Where is the number of enrolled people?

Ms. LOCKLEAR. The chairman is correct when he testified that we

have 53,000 enrolled members.

The CHAIRMAN. 53,000. A large group.

Ms. LOCKLEAR. Let me say that have an ongoing process to cull

from that record deceased members.

The CHAIRMAN. How many of those are adults of voting age?

Ms. LOCKLEAR. We have a very young tribe.

The CHAIRMAN. I would be interested in knowing that. I am sure

Senator Dole would be interested in knowing that. [Laughter.]

Okay, thank you. I have no further questions, but we may submit some to have you answer in writing.

Ms. LOCKLEAR. Just to clarify. When we said almost 55,000, we

were saying ‘‘almost,’’ which is the 53,000 figure. The 40,000 is the

40,000 in Robeson County alone, but there are members that live

elsewhere as well in surrounding counties and also some other

places. But there is not really a discrepancy; that is just a clarification for the numbers.

The CHAIRMAN. Okay. Sure. Thank you.

Mike, I am sure you would be interested in knowing the number

of them that can vote too, wouldn’t you?

Mr. McIntyre. You bet. [Laughter.]

The CHAIRMAN. Okay. We will go to our last witness, James T.

Martin from USET, who has appeared many times before the committee. Nice to see you, James. Go ahead.

And as with the other witnesses, you are welcome to abbreviate,

and may have answered a few questions already in earlier dialog.

Mr. MARTIN. Yes, sir; Mr. Chairman, I would submit my written

testimony as the formal testimony.

The CHAIRMAN. It will be in the record.

STATEMENT OF JAMES T. MARTIN, EXECUTIVE DIRECTOR,

UNITED SOUTH AND EASTERN TRIBES, NASHVILLE, TN

Mr. MARTIN. I will touch on some highlights. As I mentioned just

a moment ago, I am certainly encouraged by the information provided by the Lumbees of North Carolina. But it goes more toward

the stance that USET is taking in its formal testimony, that they

should go through the process.

My name, for the record, is James T. Martin. I am an enrolled

member of the Poarch Band of Creek Indians of Alabama, executive director of USET, the intertribal organization representing 24

federally recognized Indian tribes.

USET acknowledges that Federal recognition of Indian tribes is

a formal act creating a perpetual government-to-government relationship, so I can truly understand the sincere desire of this group

to become federally recognized. Federal recognition ensures tribes

the dignity and the deserving of equal opportunity that fellow other

tribes enjoy. Federal recognition is a complex process important to

the sovereign and cultural stability of the tribes, in that Federal

recognition creates that official trustee relationship and fiduciary

responsibilities on the part of the United States.
41

USET affirms that the Federal recognition mandates the obligation by the Federal Government to protect and preserve the inherent sovereign rights of a tribe. Federal recognition enables the tribe

to gain valuable resources to break the yoke of unemployment, low

educational levels, substandard housing and poverty that has

plagued our people. As they have testified, the same things that occurred there. So I am fully aware and appreciative and respect

their desire to gain this recognition, to be able to be welcomed into

the society of other federally recognized Indian tribes.

Federal recognition would shield the tribe from undue Federal

and State encroachments. Without Federal recognition, tribes have

experienced great difficulty in sustaining themselves as independent sovereign and cultural entities. Federal recognition creates the

trust relationship that identifies the Government’s fiduciary responsibility to manage and protect the Indian lands, natural resources and trust assets. The member tribes of USET realize the

affirmative advantage of a proper Federal recognition.

Furthermore, federally recognized tribes enjoy the inherent sovereign powers to be recognized by the United States to exercise

criminal jurisdiction over tribal members and civil jurisdiction over

all people, Indian and non-Indian, within their territory. Federally

recognized tribes have the authority to engage in economic development activities, with certain judicial and tax advantages.

We recognize that Congress has the power to extend certain recognition to groups, but in its infinite wisdom, Congress has deferred this Federal recognition process. Congress has considered

this Federal recognition process a complex and tedious one, and it

is not to be entered into lightly. Congress therefore deferred to the

Department of Interior, which has established a set of regulations,

standardizing the Federal recognition process, and creating administrative procedures to determine whether a particular Indian

group is a federally recognized tribe or not. That was alluded to by

Ms. Martin earlier, and alluded to by Ms. Locklear and other people so I will not restate those areas. But I would state, though, that

this BAR procedure was the result of a 2-year study from the congressionally established American Indian Review Commission, and

requests by tribes calling for standardized criteria in determining

the future relationships of tribes to the United States.

It is the BAR, not Congress, which is staffed with the experts

such as historians, anthropologists, genealogists. It is there responsibility to determine the merits of the group’s claims. I would propose to Congress that this information provided is a complex information. How will Congress look through that, when they, in your

infinite wisdom, have in the past deferred that to the experts to be

able to do that? These procedures were established in 1978. They

were streamlined in 1994.

The seven criteria that were identified are there for a high reason. Our tribe,the Poarch Band of Creek Indians, had to go through

that process. We had to go through it for over 20 years. We believe

in that process. USET believes in that process.

I am here today to reiterate USET’s longstanding tradition of

supporting Indian groups seeking to go through the Federal acknowledgement process. This position is reiterated in our resolution 9315, restating the position on the Lumbee recognition, duly
42

passed by our Board in 1993. This resolution expressly rejects the

concept of legislative recognition of Indian groups in favor of the

participation in the FAP process by the Lumbees of North Carolina

on an equal basis as other petitioning groups.

It is not the intent of USET to encourage the denial of recognition to any tribe, but it is our intent to demand that the FAP process and the BAR procedures for Federal recognition be administered equally for all groups seeking Federal recognition, and that

that group not be allowed to bypass this process.

We recognize that the Interior Solicitor’s opinion states that the

Lumbees cannot access the BAR because of Federal legislation.

USET believes the appropriate remedy is for Congress to clear this

barrier through legislation that would allow the Lumbees to access

the administrative procedures. A bipartisan bill, as I understand it,

H.R. 1408, has been introduced in the House that would allow that

to occur.

Additionally, Federal legislation acknowledging of a group would

unfairly give preferential treatment to that group over all other

groups that are patiently waiting in the BAR process. Moreover,

providing Federal acknowledgment of a group through legislation

invariably leads to inconsistent and subjective results. Without the

use of uniform procedures and criteria, the process of according a

group Federal recognition as a tribe will invariably be based upon

emotion and politics.

The relationship that all federally acknowledged tribes have with

the United States and the public perception of those tribes is diminished if a group is afforded Federal acknowledgement without

serious technical review. Thus Congress should take the politics

out of Federal acknowledgment and allow the experts to do their

job.

I have personal friends in this audience from the Lumbee people.

I have broken bread in their house, probably slept in some of their

beds going to their unity conference and other meeting. It is not

here that I state this as a personal opinion. It is the opinion of all

tribes across the Nation, that there are administrative procedures

that all tribes should go through so that they can be welcomed into,

if they are fortunate enough to pass the process, by all tribes across

Indian country, and not to be welcomed in with an asterisk by their

name. I am certainly encouraged by the information provided that

they believe that they could go through the administrative process

and succeed. Six of the seven criteria, as the gentleman says, that

they can meet.

We would ask this Congress to amend those procedures to allow

the Lumbees of North Carolina to avail themselves to the administrative process and review the information just as all other tribes

have done.

Thank you.

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

The CHAIRMAN. Thank you, Tim.

I want to also by the way thank you on an unrelated issue, the

very strong support that USET gave to our Indian provision of the

energy bill that is in conference now, and hopefully that is going

to come out intact. I think it is going to open up some huge opportunities for Indian tribes who want to avail themselves to it. As
43

you know, it is voluntary, tribe by tribe, but I want to thank your

Board for the help they gave us. I appreciate that.

Mr. MARTIN. Thank you, sir.

The CHAIRMAN. Let me ask you just a couple of things. I understand that some of the members of USET were legislative recognized at one time or another. Is that true?

Mr. MARTIN. Those legislative recognitions were in association

with land claims cases. There was not an outright recognition of

any tribe as a stand alone recognition bill.

The CHAIRMAN. I see.

Mr. MARTIN. All of those recognitions were associated with land

claims.

The CHAIRMAN. So the formal position against legislative recognition was that of the 1993 or so resolution?

Mr. MARTIN. Yes, sir; Now, the other tribes that we have in opposition to outright recognition was the Mowa Band of Choctaw Indians in the State of Alabama, which went through the BAR process

and was denied.

The CHAIRMAN. Well, then you did support a couple of the USET

members that were based on land claims, you said, at least one.

Mr. MARTIN. Yes, sir.

The CHAIRMAN. If the Lumbees filed a land claim and got recognition with it, what would USET’s position be on that?

Mr. MARTIN. We would have to study the legislation as we had

studied each of those legislations before and make a determination

on that, based upon the merits of that legislation.

The CHAIRMAN. You have 23 members. Is that a unanimous decision when you make that, or is it a majority position of the Board

or what?

Mr. MARTIN. Decision by the Board are by majority vote. On particular legislation, we are not bound by if they vote for a position

that is taken by the group as a whole. Individual tribes may on

their own take it upon themselves to support individual legislations. Our motto is that there is strength in unity, but those are

sovereign nations that should be able to make their public stance

known.

The CHAIRMAN. Is there any interaction now between USET and

the Lumbees? You talked about personal friendships, but is there

any interactive tribal things that go on between any of the tribes

in USET and the Lumbees?

Mr. MARTIN. There is no formal interaction between the USET

organization and the Lumbees. We have to draw a line in the sand.

USET is an intertribal organization of 24 federally recognized

tribes.

The CHAIRMAN. The members that did get recognition through

the legislative process for land claims, have you ever heard them

regretting doing it through the legislative route over the administrative route?

Mr. MARTIN. I am not aware of them expressing an opinion in

favor or not, sir.

The CHAIRMAN. Okay.

I have no further questions, but I certainly appreciate your being

here and I am sorry we had you wait so long. I know as that storm

gets closer, some people are going to want to get home, and hope-
44

fully you will all in the audience be able to get out to the airport

if you are flying, and if you are driving be safe.

We are going to keep the record open 2 weeks. If there is any

additional testimony from anybody in the audience or from the people that testified that you would like the committee to study. If you

would get that to us within the next two weeks, we will make sure

that all the members get that.

I thank you, Senator Dole, for bringing this bill to the attention

of the committee.

With that, this committee is adjourned.

[Whereupon, at 11:52 p.m. the committee was adjourned, to reconvene at the call of the Chair.]
(45)

APPENDIX

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

PREPARED STATEMENT OF AURENE MARTIN, PRINCIPAL DEPUTY ASSISTANT

SECRETARY FOR INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR

Good morning, Mr. Chairman and members of the committee. My name is Aurene

Martin and I am the principal deputy assistant secretary—Indian Affairs at the Department of the Interior. I am here today to provide the Administration’s testimony

on S. 420, the ‘‘Lumbee-Acknowledgment Act of 2003.’’ The recognition of another

sovereign is one of the most solemn and important responsibilities delegated to the

Secretary of the Interior. Federal acknowledgment enables tribes to participate in

Federal programs and establishes a government-to-government relationship between

the United, States and the tribe. Acknowledgment carries with it certain immunities

and privileges, including exemptions from State and local jurisdiction and the ability to undertake casino gaming. The Department believes that the Federal acknowledgment process set forth in 25 C.F.R. Part 83, ‘‘Procedures for Establishing that

an American Indian Group Exists as an Indian Tribe,’’ allows for the uniform and

rigorous review necessary to make an informed decision establishing this important

government-to-government relationship.

Before the development of these regulations, the Federal Government and the Department of the Interior made determinations as to which Indian groups were tribes

when negotiating treaties and determining which groups could reorganize under the

Indian Reorganization Act (25 U.S.C. 461). Ultimately there was a backlog in the

number of petitions from groups throughout the United States requesting that the

Secretary officially acknowledge them as Indian tribes. Treaty rights litigation in

the West coast, such as United States v. Washington (384 F. Supp. 312, 279 (W.D.

Wash. 1974), aft’d, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976)),

and land claims litigation on the East coast, such as Joint Tribal Council of Passamaquoddy v. Morton (528 F.2d 370 (1st Cir. 1975)), highlighted the importance of

these tribal status decisions. Thus, the Department in 1978 recognized the need to

end ad hoe decisionmaking and to adopt uniform regulations for Federal acknowledgment.

Under the Department’s regulations, petitioning groups must demonstrate that

they meet each of seven mandatory criteria. The petitioner must:

(1) demonstrate that it has been identified as an American Indian entity on a substantially continuous basis since 1900; (2) show that a predominant portion of the

petitioning group comprises a distinct community and has existed as a community

from historical times until the present; (3) demonstrate that it has maintained political influence or authority over its members as an autonomous entity from historical

times until the present; (4) provide a copy of the group’s present governing document including its membership criteria; (5) demonstrate that its membership consists of individuals who descend from a historical Indian tribe or from historical Indian tribes that combined and functioned as a single autonomous political entity

and provide a current membership list; (6) show that the membership of the petitioning group is composed principally of persons who are not members of any acknowledged North American Indian tribe, and (7) demonstrate that neither the peti-
46

tioner nor its members are the subject of congressional legislation that has expressly

terminated or forbidden the Federal relationship.

A criterion shall be considered met if the available evidence establishes a reasonable likelihood of the validity of the facts relating to that criterion.

Under the Indian Commerce Clause, Congress has the authority to recognize a

‘‘distinctly Indian community’’ as a tribe. Because, of its support for the deliberative

regulatory acknowledgment process, however, the Department of the Interior has

traditionally opposed legislative recognition. Notwithstanding that preference, the

Department recognizes that some legislation is needed given the unique status of

the Lumbee.

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 or their status as Indians

shall be applicable to the Lumbee Indians.

In 1989, the Department’s Office of the Solicitor advised that the 1956 Act forbade

the Federal relationship within the meaning of 25 C.F.R. Part 83, and that the

Lumbee Indians were therefore precluded from consideration for Federal acknowledgment under the administrative process. Because of the 1956 Act, we acknowledge that legislation is necessary if the Lumbee Indians are to be afforded the opportunity to petition the Bureau of Indian Affairs’ Office of Federal Acknowledgement under 25 C.F.R. Part 83. The Department would welcome the opportunity to

assist the Congress in drafting such legislation.

If Congress elects to bypass the regulatory acknowledgement process in favor of

congressional recognition, it may only recognize the Lumbee as a tribe pursuant to

its Indian Commerce Clause authority if a court could decide that Congress had not

acted arbitrarily in implicitly or explicitly finding that the Lumbee constitute a distinctly Indian community. Among other factors, Congress would have to identify or

be relying upon the historical continuity of a unified community under one leadership or government. If Congress made the proper express findings (or implicitly relied on sufficient evidence) and then granted the Lumbee Indians federally recognized status, the Department believes that Congress should be cognizant of several

important issues that Federal recognition raises. As currently drafted, S. 420 leaves

many questions to these issues unanswered.

Under the provisions of this bill, the Lumbee Tribe would be afforded all benefits,

privileges and immunities of a federally recognized tribe. Thus, the Lumbee Tribe

would be authorized to conduct gaming activities pursuant to the Indian Gaming

Regulatory Act (IGRA). Prior to conducting class III gaming, the tribe would need

to negotiate a gaming compact with the State of North Carolina. In addition, the

tribe 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 interest of the tribe and its members and not detrimental to the

local community. If the Secretary makes that determination in favor of allowing

gaming, then the gaming still cannot occur without the Governor’s concurrence. The

bill as drafted does not prohibit gaming.

The Department has devoted a great deal of time to trust reform discussions. The

nature of the trust relationship is now often the subject of litigation. Both the executive branch and the judicial branch are faced with the question of what exactly did

Congress intend when it established a trust relationship with individual tribes, and

put land into trust status. What specific duties are required of the Secretary, administering the trust on behalf of the United States, with respect to trust lands? Tribes

and individual Indians frequently argue that the duty is the same as that required

of a private trustee. Yet, under a private trust, the trustee and the beneficiary have

a legal relationship that is defined by private trust default principles and a trust

instrument that defines the scope of the trust responsibility. Congress, when it establishes a trust relationship, should provide the guideposts for defining what that

relationship means.

Much of the current controversy over trust stems from—the failure to have clear

guidance as to the parameters, roles and responsibilities of the trustee and the beneficiary. In this case, given that we would be taking land into trust in an area in

which there has not previously been Federal trust land, such issues as land use,

zoning, and the scope of the Secretary’s trust responsibility to manage the land

should be addressed with clarity and precision. Congress should decide these issues,

not the courts. Therefore, we recommend the committee set forth in the bill the spe-
47

cific trust duties it wishes the United States to assume with respect to the Lumbee.

Alternatively, the committee should require a trust instrument before any land is

taken into trust. This trust instrument would ideally be contained in regulations

drafted after consultation with the tribe and the local community, consistent with

parameters set forth by Congress in this legislation. The benefits of either approach

are that it would clearly establish the beneficiary’s expectations, clearly define the

roles and responsibilities of each party, and establish how certain services are provided to tribal members.

Another issue we have identified is the designation of a reservation and a service

area for the tribe. S. 420 would designate Robeson County as the tribe’s reservation

and names several other counties as its service area. Typically Congress has designated land held in trust by the Secretary as a tribe’s reservation. Counties are

then appropriately designated as service areas. Under the Act, all of Robeson County would be considered ‘‘Indian Country’’ under 18 U.S.C. 1151. By declaring the entire county as a reservation, the legislation raises law enforcement and other important jurisdictional, taxation, and land use issues for Robeson County. Criminal and

civil jurisdictions are two areas that are required to be addressed under the Department’s land-to-trust regulations under 25 C.F.R. Part 151 precisely because of the

potential impact on the local community and its potential impact upon the relationship between the tribe and local residents. Moreover, designating an area as reservation has implications for other groups in the area that might seek recognition.

We are also concerned with the provision requiring the Secretary, within 1 year,

to verify tribal membership. In our experience this is an extremely involved process

that has taken several years with much smaller tribes. We don’t currently have access to these rolls and have no idea what would be involved to verify them. Moreover, S. 420 is silent as to the meaning of verification. Section 5 also requires the

Department to determine eligibility for services. However, each program has different criteria for eligibility and the Secretary of the Interior cannot determine eligibility for such things as health care. Finally, section 5 may raise a Recommendations Clause 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 Tribe. Under the Recommendations Clause of the 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. 420, the Department feels that at a minimum, Congress should amend the 1956 Act to afford the Lumbee Indians the opportunity to petition the Bureau of Indian Affairs’ Office of Federal Acknowledgment

under 25 C.F.R. Part 83.

This concludes my prepared statement. I would be happy to answer any questions

the committee may have.
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