[House Report 111-103]
[From the U.S. Government Printing Office]


111th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    111-103

======================================================================



 
                         LUMBEE RECOGNITION ACT

                                _______
                                

  May 12, 2009.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

  Mr. Rahall, from the Committee on Natural Resources, submitted the 
                               following

                              R E P O R T

                             together with

                    ADDITIONAL AND DISSENTING VIEWS

                         [To accompany H.R. 31]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Natural Resources, to whom was referred the 
bill (H.R. 31) to provide for the recognition of the Lumbee 
Tribe of North Carolina, and for other purposes, having 
considered the same, report favorably thereon with an amendment 
and recommend that the bill as amended do pass.
  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Lumbee Recognition Act''.

SEC. 2. PREAMBLE.

  The preamble to the Act of June 7, 1956 (70 Stat. 254), is amended as 
follows:
          (1) By striking ``and'' at the end of each clause.
          (2) By striking ``: Now, therefore,'' at the end of the last 
        clause and inserting a semicolon.
          (3) By adding at the end the following new clauses:

``Whereas the Lumbee Indians of Robeson and adjoining counties in North 
Carolina are descendants of coastal North Carolina Indian tribes, 
principally Cheraw, and have remained a distinct Indian community since the 
time of contact with white settlers;

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

``Whereas in 1956 the Congress of the United States acknowledged the Lumbee 
Indians as an Indian tribe, but withheld from the Lumbee Tribe the 
benefits, privileges and immunities to which the Tribe and its members 
otherwise would have been entitled by virtue of the Tribe's status as a 
federally recognized tribe; and

``Whereas the Congress finds that the Lumbee Indians should now be entitled 
to full Federal recognition of their status as an Indian tribe and that the 
benefits, privileges and immunities that accompany such status should be 
accorded to the Lumbee Tribe: Now, therefore,''.

SEC. 3. FEDERAL RECOGNITION.

  The Act of June 7, 1956 (70 Stat. 254), is amended as follows:
          (1) By striking the last sentence of the first section.
          (2) By striking section 2 and inserting the following new 
        sections:
  ``Sec. 2.  (a) Federal recognition is hereby extended to the Lumbee 
Tribe of North Carolina, as designated as petitioner number 65 by the 
Office of Federal Acknowledgement. All laws and regulations of the 
United States of general application to Indians and Indian tribes shall 
apply to the Lumbee Tribe of North Carolina and its members.
  ``(b) Notwithstanding the first section, any group of Indians in 
Robeson and adjoining counties, North Carolina, whose members are not 
enrolled in the Lumbee Tribe of North Carolina as determined under 
section 3(c), may petition under part 83 of title 25 of the Code of 
Federal Regulations for acknowledgement of tribal existence.
  ``Sec. 3.  (a) The Lumbee Tribe of North Carolina and its members 
shall be eligible for all services and benefits provided to Indians 
because of their status as members of a federally recognized tribe. For 
the purposes of the delivery of such services, those members of the 
Tribe residing in Robeson, Cumberland, Hoke, and Scotland counties in 
North Carolina shall be deemed to be residing on or near an Indian 
reservation.
  ``(b) Upon verification by the Secretary of the Interior of a tribal 
roll under subsection (c), the Secretary of the Interior and the 
Secretary of Health and Human Services shall develop, in consultation 
with the Lumbee Tribe of North Carolina, a determination of needs to 
provide the services to which members of the Tribe are eligible. The 
Secretary of the Interior and the Secretary of Health and Human 
Services shall each submit a written statement of such needs to 
Congress after the tribal roll is verified.
  ``(c) For purposes of the delivery of Federal services, the tribal 
roll in effect on the date of the enactment of this section shall, 
subject to verification by the Secretary of the Interior, define the 
service population of the Tribe. The Secretary's verification shall be 
limited to confirming compliance with the membership criteria set out 
in the Tribe's constitution adopted on November 16, 2001, which 
verification shall be completed within 2 years after the date of the 
enactment of this section.
  ``Sec. 4.  (a) The Secretary may take land into trust for the Lumbee 
Tribe pursuant to this Act. An application to take land located within 
Robeson County, North Carolina, into trust under this section shall be 
treated by the Secretary as an `on reservation' trust acquisition under 
part 151 of title 25, Code of Federal Regulation (or a successor 
regulation).
  ``(b) The tribe may not conduct gaming activities as a matter of 
claimed inherent authority or under the authority of any Federal law, 
including the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.) or 
under any regulations thereunder promulgated by the Secretary or the 
National Indian Gaming Commission.
  ``Sec. 5. (a) The State of North Carolina shall exercise jurisdiction 
over--
          ``(1) all criminal offenses that are committed on; and
          ``(2) all civil actions that arise on, lands located within 
        the State of North Carolina that are owned by, or held in trust 
        by the United States for, the Lumbee Tribe of North Carolina, 
        or any dependent Indian community of the Lumbee Tribe of North 
        Carolina.
  ``(b) The Secretary of the Interior is authorized to accept on behalf 
of the United States, after consulting with the Attorney General of the 
United States, any transfer by the State of North Carolina to the 
United States of any portion of the jurisdiction of the State of North 
Carolina described in subsection (a) pursuant to an agreement between 
the Lumbee Tribe and the State of North Carolina. Such transfer of 
jurisdiction may not take effect until 2 years after the effective date 
of the agreement.
  ``(c) The provisions of this section shall not affect the application 
of section 109 of the Indian Child Welfare Act of 1978 (25 U.S.C. 
1919).
  ``Sec. 6.  There are authorized to be appropriated such sums as are 
necessary to carry out this Act.''.

                          Purpose of the Bill

    The purpose of H.R. 31 is to provide for the recognition of 
the Lumbee Tribe of North Carolina, and for other purposes.

                  Background and Need for Legislation

    The ancestors of the Lumbee were mainly Cheraw and related 
Siouan-speaking Indians who have, since the 1700s, lived in the 
area of what is now Robeson County, North Carolina. While they 
have been referred to under many different names, the Lumbee 
take their name from the river known as Lumbee River to the 
tribe and Lumber River to others. This river flows through 
Robeson County.
    The issue of the status of the Lumbee Tribe of North 
Carolina comes to the Committee with a voluminous congressional 
and administrative record. The beginning of the Lumbee Tribe's 
struggle for federal recognition dates back over 100 years to 
1888, when 44 tribal leaders signed a petition seeking federal 
assistance for their people and more specifically for funding 
the tribe's schools. After Congress referred the petition to 
the Department of the Interior, the Commissioner of Indian 
Affairs ultimately denied the tribe's request, claiming the 
agency had insufficient resources. The Commissioner of Indian 
Affairs responded in 1890 as follows: ``While I regret 
exceedingly that the provisions made by the State of North 
Carolina are entirely inadequate, I find it quite impractical 
to render any assistance at this time. So long as the immediate 
wards of the Government are so insufficiently provided for, I 
do not see how I can consistently render any assistance to the 
Croatans, or any other civilized tribes.''
    Beginning in 1899, numerous bills have been introduced in 
Congress to recognize the tribe.\1\ Hearings were held and 
reports filed on several of these bills.\2\ In addition, 
Congress requested and obtained several reports from the 
Department of the Interior on the tribe's history and 
status.\3\ These hearings and studies consistently concluded 
that the Lumbees were a distinct, self-governing Indian 
community, descended from Siouan speaking tribes, principally 
the Cheraw. The various bills to recognize the tribe failed 
generally due to the opposition of the Department of the 
Interior. The Department's opposition was typically based on 
either the cost of providing services to the Lumbee, or the 
fact that recognition ran counter to the prevailing federal 
Indian policy, but not on questions related to the tribe's 
Indian ancestry or tribal governmental status. For example, the 
1956 Lumbee Act was passed during a period of federal Indian 
policy known as the Termination Era, during which Congress 
terminated its relationship with 109 Indian nations.
---------------------------------------------------------------------------
    \1\See H.R. 4009, 56th Cong., 1st Sess.; H.R. 19036, 61st Cong., 2d 
Sess.; S. 3258, 62d Cong., 1st Sess.; [House companion H.R. 20728]; 
H.R. 8083, 68th Cong., 1st Sess.; S. 4595, 72d Cong., 2d Sess.; H.R. 
5365, 73d Cong., 1st Sess. [Senate companion S. 1632]; H.R. 4656, 84th 
Cong., 1st Sess.; H.R. 5042, 100th Cong., 1st Sess. [Senate companion 
S. 2672]; H.R. 2335, 101st Cong., 1st Sess. [Senate companion S. 901]; 
H.R. 1426, 102d Cong., 1st Sess. [Senate companion S. 1036]; H.R. 334, 
103d Cong., 1st Sess; S. 420, 108th Cong., 1st Sess. [House companion 
H.R. 898]; S. 660, 109th Cong., 1st Sess.
    \2\See Hearing before the Senate Committee on Indian Affairs on S. 
3258, 62d Cong., 2d Sess., April 4, 1912; Hearing before the Committee 
on Indian Affairs, House of Representatives, on S. 3258, Feb. 14, 1913; 
H. Rep. No. 1752, 73d Cong., 2d Sess.; S. Rep. No. 204, 73d Cong., 2d 
Sess.; H. Rep. No. 1654, 84th Cong., 2d Sess.; S. Rep. No. 84-2012, 
84th Cong., 2d Sess.; S. Rep. No. 100-579, 100th Cong., 2d Sess.; H. 
Rep. No. 102-215, 102d Cong., 1st Sess.; H. Rep. No. 103-290, 103d 
Cong., 1st Sess.; S. Rep. No. 108-213, 108th Cong., 1st Sess.; S. Rep. 
No. 109-334, 109th Cong., 2d Sess.; and H. Rep. No. 110-164, 110th 
Cong., 1st. Sess.
    \3\See Indian School Supervisor Pierce Report, filed with the 
Senate on April 4, 1912; Special Indian Agent McPherson report, Doc. 
No. 677, 53d Cong., 2d Sess., prepared in 1914; Report of J.R. Swanton, 
Smithsonian Institution, at request of Bureau of Indian Affairs and 
submitted to Congress at the 1933 hearing; and Fred A. Baker Report on 
the Siouan Tribe of Indians of Robeson County, July 9, 1935.
---------------------------------------------------------------------------

Lumbee ancestry

    The evidence establishes that the tribe descends from the 
historic Cheraw and related Siouan-speaking tribes. 
Historically, the Cheraw were located on Drowning Creek in 
North Carolina. Drowning Creek was renamed the Lumber River by 
the State of North Carolina in 1809. The ancestors of the 
modern day Lumbee Tribe have been located on and around 
Drowning Creek/Lumber River ever since the first contact with 
Europeans in the early 1700s. Modern day Lumbee Indians share 
the same distinctive surnames as families linked historically 
to the known Cheraw territory, e.g. Locklear, Chavis, Grooms 
and others.
    Because of the precarious position of Indians in the early 
1800s due to the removal of many tribes to Oklahoma, the 
Indians of Robeson County hid their Indian identity. However, 
incidents during and after the Civil War showed much activity 
in the Indian community, including recognition by local 
governmental authorities of this community as an Indian 
community.
    Congress' deliberations on the tribe's history produced 
authoritative reports by the Department of the Interior. Eleven 
studies done on the Lumbee Tribe by personnel from the Bureau 
of Indian Affairs express no doubt that the ancestors of the 
modern day Lumbee Tribe were Indian. For example, in 1914, 
Special Indian Agent O.M. McPherson, sent to investigate the 
history and condition of the tribe, concluded that the tribe 
was descended from the Cheraw Tribe. Further, in 1934 the 
Department expressed to Congress, based upon a report by the 
eminent John R. Swanton of the Bureau of Ethnology, that the 
Lumbees descend from the Cheraw and related Siouan speaking 
tribes of coastal North Carolina. This conclusion has since 
been corroborated by leading historians in the field, including 
Dr. William Sturtevant, editor in chief of the Smithsonian 
Institution's Handbook of North American Indians and Dr. James 
Merrell, professor of colonial history at Vassar College. Dr. 
Jack Campisi, the tribe's ethnohistorian who testified before 
the Committee, also confirmed the Cheraw origins of the Lumbee.

Lumbee school

    In 1885, the State of North Carolina recognized the tribe 
and established a separate school system for Lumbee children, 
run by the tribe itself. Enrollment in the school was 
restricted to Lumbee children who could demonstrate Lumbee 
descent four generations back, or into the 1770s. Lumbee tribal 
leaders were authorized to determine eligibility to enroll in 
the school. These enrollment records, along with federal census 
records, form the base roll from which all present day tribal 
members must demonstrate descent. On March 26, 1913, State 
Attorney General Bickett issued an opinion that the county 
board of education could overrule tribal decisions in the 
Lumbee schools. Lumbee tribal leaders objected to this 
infringement on their independence. Under pressure from the 
Lumbee leadership, the State of North Carolina enacted 
legislation subsequently setting aside the Attorney General's 
opinion. The Indian Normal School established by the State in 
1888 to train Lumbee teachers for the Tribe's school system has 
been in continuous operation and is today the University of 
North Carolina at Pembroke.

State recognition and name changes

    In its recognition acts, the State of North Carolina 
imposed various names on the Tribe, based on the 
representations of local historians and members of the 
legislature regarding the tribe's history. These included 
Croatan [1885 to 1911], Indians of Robeson County [1911 to 
1913], Cherokee Indians of Robeson County [1913-1953], and 
finally Lumbee Indians [1953 to present]. In the early 1950s, 
the tribe became dissatisfied with its name under state law. 
Under pressure from the tribe, the state authorized the tribe 
to conduct a referendum on its name. In 1951, by a margin of 
2,169 to 35, the Robeson County Indians voted to adopt the name 
``Lumbee Indians of North Carolina.'' The General Assembly of 
North Carolina passed a bill in 1953 designating them as 
``Lumbee Indians of North Carolina'' and the State continues to 
recognize the Tribe by this name. This was the only opportunity 
the tribe had to name itself rather than have a name foisted 
upon them by the state.

Senate Resolution 344 (1914)

    This resolution called for an investigation into the status 
and conditions of the Indians of Robeson County and adjoining 
counties. As a result, Special Indian Agent O.M. McPherson 
visited Robeson County and afterwards issued a 252-page report 
which covered all aspects of the tribe's history and condition 
and confirmed the tribal characteristics of the Lumbee Indians. 
Furthermore, he declared that they were eligible to attend the 
federal Indian schools. Congress, however, failed to take 
action on the McPherson report.

Lumbee Act 1956

    As it had in the past, the tribe in 1955 sought federal 
recognition based on the recently amended state law. Again, the 
Department of the Interior opposed the bill and recommended 
that Congress amend the bill by denying eligibility for the 
benefits and services available to Indians because of their 
status as Indians, consistent with the then-prevailing federal 
Indian policy of termination. This amended bill was enacted by 
Congress in 1956 (Pub. L. 84-570, Act of June 7, 1956, 70 Stat. 
254). Thus, Congress simultaneously acknowledged the Lumbee 
Indians but effectively terminated the tribe by denying them 
federal Indian services and benefits.

1968 Tiwa Act (82 Stat. 93)

    The 1956 Lumbee Act was a model for the Tiwa Act of 1968 
and served nearly the same purpose in that it recognized the 
Tiwa as Indians but terminated any federal trust relationship 
with the tribe. Yet in 1987, Congress enacted the Ysleta del 
Sur Pueblo Restoration Act that restored the federal trust 
relationship and extended full federal recognition to the 
Ysleta del Sur Pueblo of Texas, previously known as the Texas 
Tiwa. This restoration Act acknowledged that the 1968 Tiwa Act 
had recognized the Tiwa (S. Rep. 100-90, 100th Cong., 1st 
sess.) and therefore many argue, its model--the 1956 Lumbee 
Act--must have recognized the Lumbee and that it is in the 
hands of Congress to restore the federal relationship with the 
Lumbee.

Federal acknowledgment process

    Pursuant to the Department of the Interior's regulations, 
the Lumbee Tribe prepared an extensive petition for federal 
acknowledgment. The petition was submitted by the tribe on 
December 17, 1987. It consists of a two volume narrative 
report, one and one-half file boxes of documentary evidence and 
a 16 volume membership roll. There is a consistent historical 
record of the presence of the Lumbees and of tribal activity, 
but during certain periods the documentation is sporadic. Dr. 
Jack Campisi, who is the principal author of the Lumbee 
petition, explained that non-Indian settlement around the 
Lumbee community occurred relatively late, circa 1830, so that 
no literate individuals or organized governments were present 
continuously before that time to record tribal activity. The 
Committee has been advised that the tribe has exhausted all 
research avenues and that the documentation before the 
Committee and the Department of the Interior is all that 
exists. In the end, the Department of the Interior informed the 
tribe that it was ineligible to participate in the Federal 
Acknowledgment Process because Congress has terminated its 
relationship with the tribe, therefore, only Congress could 
restore the relationship.

Problems with the Federal acknowledgment process

    It is also noteworthy that the administrative 
acknowledgment process has been criticized by the Congress and 
tribes. This Committee has conducted many oversight hearings on 
the administrative process and found it to be expensive, 
inordinately lengthy and too heavily dependent upon formal 
documents on Indian tribes even though such documents do not 
exist or were not generated due to a variety of historic 
circumstances. Given the nature of the process, it is 
conceivable that a legitimate Indian tribe could be denied 
recognition administratively for reasons beyond its control if 
it could not produce the degree and detail of documentation 
required by the Department. The Committee believes that the 
Lumbee Tribe is such a tribe.

Congressional authority

    It is clear that in some cases, recognition of an Indian 
tribe is a matter that should be left for the Congress to 
address. Congress plainly has the constitutional authority to 
recognize Indian tribes. In fact, the overwhelming majority of 
federally recognized Indian tribes were recognized by Congress 
either through treaty or statute. The present administrative 
process was established under general authority delegated by 
the Congress to the Department of the Interior, but there is no 
specific statutory authority for the process. In other words, 
the process is wholly administrative in origin. Obviously, 
Congress is not bound by those regulations in determining 
whether to recognize a particular Indian tribe. Especially 
where the Department has so often analyzed a tribe in the past, 
Congress can take those past departmental determinations and 
the general view of anthropologists into account. The record 
here is adequate for a congressional determination and the 
circumstances support the appropriateness of recognition 
legislation.
    In United States v. Sandoval, 231 U.S. 28 (1913), the 
Supreme Court has held that Congress' authority to recognize an 
Indian tribe is limited to ``distinctly Indian communities.'' 
The eleven reports done on the Lumbee Tribe by the Bureau of 
Indian Affairs and the congressional record of H.R. 31 all 
establish that the Lumbee Tribe constitutes a distinct Indian 
community.

Membership and governing structure

    Native nations have the inherent authority to determine 
their membership. In Santa Clara v. Martinez,\4\ the Supreme 
Court stated, ``A tribe's right to define its own membership 
for tribal purposes has long been recognized as central to its 
existence as an independent political community.''
---------------------------------------------------------------------------
    \4\436 U.S. 49, 72 n. 32 (1978)
---------------------------------------------------------------------------
    Approximately 55,000 Lumbee Indians are enrolled in the 
Lumbee Tribe. Eligibility for tribal enrollment is limited to 
persons who were identified as Indian on source documents from 
the early 1900s, including the 1900 and 1910 federal census, 
the list of 44 individuals recognized by the State of North 
Carolina as Croatan Indians, and those who signed an 1888 
petition to Congress by which the Lumbee ancestors first sought 
federal recognition. The Lumbee service population is 
identified as those members residing in Robeson, Cumberland, 
Hoke, and Scotland Counties, North Carolina. CBO estimated the 
Lumbee service population at 39,700 members. The Lumbee tribal 
membership rolls are now closed as their status is being 
considered by Congress. This is common practice for tribes 
seeking federal recognition, whether from Congress or from the 
Department of the Interior under 25 CFR Part 83. Tribes 
typically re-open their rolls after recognition to allow for 
enrollment of newly born tribal citizens.
    The Lumbee Indians have never had a reservation or received 
services from the Bureau of Indian Affairs or the Indian Health 
Service though they are eligible for and do receive funds from 
other federal Indian programs because of their recognition by 
the State of North Carolina. On November 21, 2001, the Lumbee 
Tribe voted overwhelmingly to organize under a tribal 
constitution. The constitution sets out the requirements for 
tribal membership, including descent from an individual on a 
base roll consisting of tribal members identified in federal 
censuses, Indian school records, and other documents dated 
around 1900. The constitution creates the Office of Tribal 
Chairman, elected by all voting tribal members, and twenty-one 
tribal council members, elected from districts within the 
Lumbee communities.
    In summary, the historical record is persuasive and 
compelling that for the last 200 years the Lumbees have 
functioned as an Indian tribe and have been recognized as such 
by state and local authorities.

Gaming

    The Lumbee Tribe agreed to a prohibition on gaming and has 
repeatedly stated that they have no intention of pursuing 
gaming at this time. Accordingly, the tribe is prohibited by 
H.R. 31 from conducting, licensing, or regulating gaming 
pursuant to any inherent authority they may possess, the Indian 
Gaming Regulatory Act, or any other federal law.

Lumbee recognition legislation (100th-110th Congresses)

    During the 100th Congress, companion bills to recognize the 
Lumbee Tribe (H.R. 5042 and S. 2672) were introduced and 
hearings were held on the bills. The Senate bill was reported 
favorably out of the Senate Committee on Indian Affairs, but no 
further action was taken on it. In the 102nd Congress, H.R. 
1426 passed in the House with 240 yeas, 167 nays, but the 
Senate failed to invoke cloture on debate and the bill died. In 
the 103rd Congress, H.R. 334 passed the House but was never 
acted on in the Senate. Rep. McIntyre introduced H.R. 898 
during the 108th Congress and hearings were held on the bill 
but no further actions were taken. Rep. McIntyre introduced 
Lumbee recognition legislation (H.R. 21) once again during the 
109th Congress but no major actions were taken. Rep McIntyre 
yet again introduced H.R. 65 in the 110th Congress with a 
companion bill, S. 333 introduced in the Senate. H.R. 65 passed 
the house on June 6, 2007 with 256 yeas and 128 nays but the 
Senate failed to act on either H.R. 65 or S. 333.

                            Committee Action

    H.R. 31 was introduced by Rep. Mike McIntyre (D-NC) on 
January 6, 2009. The bill was referred to the Committee on 
Natural Resources and has 185 cosponsors. On March 18, 2009, 
the Committee on Natural Resources held a hearing on H.R. 31. 
The Committee received testimony from the Hon. Mike McIntyre 
(D-NC); the Hon. Heath Shuler (D-NC); the Hon. Patrick McHenry 
(R-NC); the Hon. Walter B. Jones (R-NC); Chairman James Ernest 
Goins, Lumbee Tribe of North Carolina; Mr. Gerald Danforth; Ms. 
Arlinda Locklear; and Mr. Michael Cook. Mr. George Skibine, 
Acting Deputy Associate Secretary for Policy & Economic 
Development, Department of the Interior, Bureau of Indian 
Affairs, also testified on behalf of the Administration in 
support of the bill.
    On April 22, 2009, the Committee met to consider the bill. 
Chairman Rahall (D-WV) offered an en bloc amendment to clarify 
the right of the Secretary of the Interior to take land into 
trust for the Lumbee Tribe and delete the requirement that the 
Secretaries of the Interior and Health and Human Services 
provide a budget to Congress to meet the needs of the Lumbee 
Tribe. It was adopted by voice vote. The bill, as amended, was 
then ordered favorably reported to the House of Representatives 
by voice vote.

                      Section-by-Section Analysis


Section 1. Short title

    Section 1 provides the short title of the bill as the 
``Lumbee Recognition Act.''

Section 2. Preamble

    Section 2 contains findings that the Lumbee Indians are 
descendants of coastal North Carolina Indians; that the State 
of North Carolina has recognized the Lumbees since 1885; that 
Congress acknowledged the Lumbee Indians as an Indian tribe in 
1956 but withheld the benefits, privileges and immunities that 
normally extend to Indians because of their status as Indians; 
and that Congress now finds that the full benefits, privileges, 
and immunities should be extended to the Lumbee Tribe.

Section 3. Federal recognition

    Section 3 deletes the prohibition in the 1956 Act of 
eligibility for federal services and benefits and instead 
extends federal recognition to the Lumbee Tribe of North 
Carolina, as designated Petitioner Number 65 by the Office of 
Federal Acknowledgment. All federal law and regulations of 
general applicability to Indians and Indian tribes apply to the 
Lumbee Tribe and its members. Section 3 also clarifies that any 
Indians who are not enrolled in the Lumbee Tribe but reside in 
Robeson and adjoining counties may continue through the Federal 
Acknowledgment Process as a separate Indian petitioner.
    All services and benefits provided to Indians because of 
their status as Indians are extended to the Lumbee Tribe. The 
Tribe's service area is specified as four counties in North 
Carolina. The Secretary of the Interior and the Secretary of 
Health and Human Services are required to consult with the 
Lumbee Tribe to develop a statement of needs and budget. The 
statement shall be submitted to Congress.
    Further, this section provides that the Lumbee Tribe is 
prohibited from conducting, licensing, or regulating gaming 
pursuant to any inherent authority they may possess, the Indian 
Gaming Regulatory Act, or any other federal law.
    This section also provides that the tribal roll in effect 
on the date of enactment shall define the tribe's service 
population. The Secretary of the Interior shall verify the 
tribe's roll within two years after the date of the enactment 
of this section. Lands in Robeson County to be held in trust 
for the Secretary shall be considered as ``on-reservation'' 
trust acquisitions under part 151 of the Code of Federal 
Regulations. The State of North Carolina shall exercise civil 
and criminal jurisdiction over all actions arising on lands 
held in trust for the tribe. The State of North Carolina may 
transfer its civil or criminal jurisdiction to the United 
States. The application of the Indian Child Welfare Act of 1978 
is not affected by this subsection. Finally, this subsection 
authorizes appropriations in the amount of such sums as are 
needed.

            Committee Oversight Findings and Recommendations

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Natural Resources' oversight findings and 
recommendations are reflected in the body of this report.

                   Constitutional Authority Statement

    Article I, section 8 of the Constitution of the United 
States grants Congress the authority to enact this bill.

                    Compliance With House Rule XIII

    1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. However, clause 3(d)(3)(B) 
of that Rule provides that this requirement does not apply when 
the Committee has included in its report a timely submitted 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974.
    2. Congressional Budget Act. As required by clause 3(c)(2) 
of rule XIII of the Rules of the House of Representatives and 
section 308(a) of the Congressional Budget Act of 1974, this 
bill does not contain any new budget authority, spending 
authority, credit authority, or an increase or decrease in 
revenues or tax expenditures.
    3. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this bill is to provide for the recognition of the 
Lumbee Tribe of North Carolina, and for other purposes.
    4. Congressional Budget Office Cost Estimate. Under clause 
3(c)(3) of rule XIII of the Rules of the House of 
Representatives and section 403 of the Congressional Budget Act 
of 1974, the Committee has received the following cost estimate 
for this bill from the Director of the Congressional Budget 
Office:

H.R. 31--Lumbee Recognition Act

    Summary: H.R. 31 would provide federal recognition to the 
Lumbee Tribe of North Carolina, thereby making the tribe 
eligible to receive funding from various federal programs. CBO 
estimates that implementing this legislation would cost $786 
million over the 2010-2014 period, assuming appropriation of 
the necessary funds. Enacting H.R. 31 would not affect direct 
spending or revenues.
    H.R. 31 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would impose no costs on state, local, or tribal 
governments.
    Estimated cost to the federal government: The estimated 
budgetary impact of H.R. 31 is shown in the following table. 
The costs of this legislation fall within budget functions 450 
(community and regional development) and 550 (health).

----------------------------------------------------------------------------------------------------------------
                                                               By fiscal year, in millions of dollars--
                                                    ------------------------------------------------------------
                                                       2010      2011      2012      2013      2014    2919-2014
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Bureau of Indian Affairs:
     Estimated Authorization Level.................        28        29        29        30        30        146
    Estimated Outlays..............................        21        28        29        30        30        138
Indian Health Service:
    Estimated Authorization Level..................       126       129       132       135       139        661
    Estimated Outlays..............................       113       129       132       135       139        648
    Total Changes:.................................
        Estimated Authorization Level..............       154       158       161       165       169        807
        Estimated Outlays..........................       134       157       161       165       169        786
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that H.R. 
31 will be enacted near the end of fiscal year 2009. The bill 
would provide federal recognition to the Lumbee Tribe of North 
Carolina. Such recognition would allow the Lumbee, with 
membership of about 54,000 people, to receive benefits from 
various programs administered by the Bureau of Indian Affairs 
(BIA) and the Indian Health Service (IHS). Based on the average 
expenditures from those agencies for other Indian tribes, CBO 
estimates that implementing H.R. 31 would cost $786 million 
over the 2010-2014 period, assuming appropriation of the 
necessary funds.
    Bureau of Indian Affairs: BIA provides funding to federally 
recognized tribes for various purposes, including child welfare 
services, adult care, community development, and general 
assistance. A portion of this funding (classified in the BIA 
budget as tribal priority allocations) is awarded solely on the 
basis of population in the tribe's service area. (A service 
area is where BIA services are generally provided.) Based on 
information from BIA, CBO expects that the Lumbee Tribe would 
receive approximately $6 million per year in such funding, 
assuming that about 75 percent of the total membership lives 
within the tribe's designated service area. In addition to the 
tribal priority allocation, the Lumbee Tribe would likely 
receive BIA funding based on other needs and characteristics of 
the tribe's members.
    In total, CBO estimates that providing BIA services would 
cost $138 million over the 2010-2014 period, assuming 
appropriation of the necessary funds. This estimate is based on 
per capita expenditures for other federally recognized tribes 
located in the eastern United States.
    Indian Health Service: H.R. 31 also would make members of 
the Lumbee Tribe eligible to receive health benefits from the 
IHS. Based on information from the IHS, CBO estimates that 
about 56 percent of tribal members--or about 31,000 people--
would receive benefits each year. CBO assumes that the cost to 
serve those individuals would be similar to funding for current 
IHS beneficiaries--about $4,000 per individual in 2009. 
Assuming appropriation of the necessary funds and adjusting for 
anticipated inflation, CBO estimates that IHS benefits for the 
Lumbee Tribe would cost $648 million over the 2010-2014 period.
    Other Federal agencies: In addition to BIA and IHS funding, 
certain Indian tribes also receive support from other federal 
programs within the Departments of Education, Housing and Urban 
Development, Labor, and Agriculture. Based on their status as a 
tribe recognized by North Carolina, the Lumbee are already 
eligible to receive funding from those departments. Thus, CBO 
estimates that implementing H.R. 31 would not add to the cost 
of those programs.
    Intergovernmental and private-sector impact: H.R. 31 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would impose no costs on state, local, or 
tribal governments.
    Estimate prepared by: Federal Costs: Leigh Angres--Bureau 
of Indian Affairs, Robert Stewart--Indian Health Service; 
Impact on State, Local, and Tribal Governments: Melissa 
Merrell; Impact on the Private Sector: Marin Randall.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                    Compliance With Public Law 104-4

    This bill contains no unfunded mandates.

                           Earmark Statement

    H.R. 31 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9(d), 9(e) or 9(f) of rule XXI.

               Preemption of State, Local, or Tribal Law

    This bill is not intended to preempt any State, local, or 
tribal law.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

                          ACT OF JUNE 7, 1956


                             (Chapter 375)

        AN ACT Relating to the Lumbee Indians of North Carolina.

Whereas many Indians now living in Robeson and adjoining counties are 
descendants of that once large and prosperous tribe which occupied the 
lands along the Lumbee River at the time of the earliest white settlements 
in that section; [and]

Whereas at the time of their first contacts with the colonists, these 
Indians were a well-established and distinctive people living in European-
type houses in settled towns and communities, owning slaves and livestock, 
tilling the soil, and practicing many of the arts and crafts of European 
civilization; [and]

Whereas by reason of tribal legend, coupled with a distinctive appearance 
and manner of speech and the frequent recurrence among them of family names 
such as Oxendine, Locklear, Chavis, Drinkwater, Bullard, Lowery, Sampson, 
and others, also found on the roster of the earliest English settlements, 
these Indians may, with considerable show of reason, trace their origin to 
an admixture of colonial blood with certain coastal tribes of Indians; 
[and]

Whereas these people are naturally and understandably proud of their 
heritage, and desirous of establishing their social status and preserving 
their racial history[: Now, therefore,];

Whereas the Lumbee Indians of Robeson and adjoining counties in North 
Carolina are descendants of coastal North Carolina Indian tribes, 
principally Cheraw, and have remained a distinct Indian community since the 
time of contact with white settlers;

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

Whereas in 1956 the Congress of the United States acknowledged the Lumbee 
Indians as an Indian tribe, but withheld from the Lumbee Tribe the 
benefits, privileges and immunities to which the Tribe and its members 
otherwise would have been entitled by virtue of the Tribe's status as a 
federally recognized tribe; and

Whereas the Congress finds that the Lumbee Indians should now be entitled 
to full Federal recognition of their status as an Indian tribe and that the 
benefits, privileges and immunities that accompany such status should be 
accorded to the Lumbee Tribe: Now, therefore,

  Be it enacted by the Senate and House of Representatives of 
the United States of America in Congress assembled, That the 
Indians now residing in Robeson and adjoining counties of North 
Carolina, originally found by the first white settlers on the 
Lumbee River in Robeson County, and claiming joint descent from 
remnants of early American colonists and certain tribes of 
Indians originally inhabiting the coastal regions of North 
Carolina, shall, from and after the ratification of this Act, 
be known and designated as Lumbee Indians of North Carolina and 
shall continue to enjoy all rights, privileges, and immunities 
enjoyed by them as citizens of the State of North Carolina and 
of the United States as they enjoyed before the enactment of 
this Act, and shall continue to be subject to all the 
obligations and duties of such citizens under the laws of the 
State of North Carolina and the United States. [Nothing in this 
Act shall make such Indians eligible for any services performed 
by the United States for Indians because of their status as 
Indians, and none of the statutes of the United States which 
affect Indians because of their status as Indians shall be 
applicable to the Lumbee Indians.]
  [Sec. 2. All laws and parts of laws in conflict with this Act 
are hereby repealed.]
  Sec. 2.  (a) Federal recognition is hereby extended to the 
Lumbee Tribe of North Carolina, as designated as petitioner 
number 65 by the Office of Federal Acknowledgement. All laws 
and regulations of the United States of general application to 
Indians and Indian tribes shall apply to the Lumbee Tribe of 
North Carolina and its members.
  (b) Notwithstanding the first section, any group of Indians 
in Robeson and adjoining counties, North Carolina, whose 
members are not enrolled in the Lumbee Tribe of North Carolina 
as determined under section 3(c), may petition under part 83 of 
title 25 of the Code of Federal Regulations for acknowledgement 
of tribal existence.
  Sec. 3.  (a) The Lumbee Tribe of North Carolina and its 
members shall be eligible for all services and benefits 
provided to Indians because of their status as members of a 
federally recognized tribe. For the purposes of the delivery of 
such services, those members of the Tribe residing in Robeson, 
Cumberland, Hoke, and Scotland counties in North Carolina shall 
be deemed to be residing on or near an Indian reservation.
  (b) Upon verification by the Secretary of the Interior of a 
tribal roll under subsection (c), the Secretary of the Interior 
and the Secretary of Health and Human Services shall develop, 
in consultation with the Lumbee Tribe of North Carolina, a 
determination of needs to provide the services to which members 
of the Tribe are eligible. The Secretary of the Interior and 
the Secretary of Health and Human Services shall each submit a 
written statement of such needs to Congress after the tribal 
roll is verified.
  (c) For purposes of the delivery of Federal services, the 
tribal roll in effect on the date of the enactment of this 
section shall, subject to verification by the Secretary of the 
Interior, define the service population of the Tribe. The 
Secretary's verification shall be limited to confirming 
compliance with the membership criteria set out in the Tribe's 
constitution adopted on November 16, 2001, which verification 
shall be completed within 2 years after the date of the 
enactment of this section.
  Sec. 4.  (a) The Secretary may take land into trust for the 
Lumbee Tribe pursuant to this Act. An application to take land 
located within Robeson County, North Carolina, into trust under 
this section shall be treated by the Secretary as an ``on 
reservation'' trust acquisition under part 151 of title 25, 
Code of Federal Regulation (or a successor regulation).
  (b) The tribe may not conduct gaming activities as a matter 
of claimed inherent authority or under the authority of any 
Federal law, including the Indian Gaming Regulatory Act (25 
U.S.C. 2701 et seq.) or under any regulations thereunder 
promulgated by the Secretary or the National Indian Gaming 
Commission.
  Sec. 5. (a) The State of North Carolina shall exercise 
jurisdiction over--
          (1) all criminal offenses that are committed on; and
          (2) all civil actions that arise on, lands located 
        within the State of North Carolina that are owned by, 
        or held in trust by the United States for, the Lumbee 
        Tribe of North Carolina, or any dependent Indian 
        community of the Lumbee Tribe of North Carolina.
  (b) The Secretary of the Interior is authorized to accept on 
behalf of the United States, after consulting with the Attorney 
General of the United States, any transfer by the State of 
North Carolina to the United States of any portion of the 
jurisdiction of the State of North Carolina described in 
subsection (a) pursuant to an agreement between the Lumbee 
Tribe and the State of North Carolina. Such transfer of 
jurisdiction may not take effect until 2 years after the 
effective date of the agreement.
  (c) The provisions of this section shall not affect the 
application of section 109 of the Indian Child Welfare Act of 
1978 (25 U.S.C. 1919).
  Sec. 6.  There are authorized to be appropriated such sums as 
are necessary to carry out this Act.

                    ADDITIONAL AND DISSENTING VIEWS

    H.R. 31 extends recognition to the Lumbee Indians of North 
Carolina. If recognized, the Lumbees would be one of the 
largest tribes in the U.S. in terms of their membership. 
According to the Congressional Budget Office, this would cost 
$786 million over the FY 2010-14 period, assuming appropriation 
of the necessary funds. Perhaps the Democratic Leadership no 
longer suffers from sticker shock in light of the trillions of 
taxpayer dollars it has spent, borrowed, and taxed in just a 
few months, but three-quarters of the billion dollars is 
nevertheless a significant sum of money and recognizing an 
enormous new tribe may stretch budgets thin for services 
provided to tribes everywhere else. Legislative proposals to 
recognize the Lumbee have surfaced numerous times over the last 
century, yet none were enacted. No new information has come to 
light to justify passing it today; thus, further action on H.R. 
31 seems premature. Simply put, more justification is needed to 
recognize the Lumbee Tribe.
    First, the Obama Administration testified in support of 
H.R. 31, reversing the stance of the Bush Administration. In 
the Committee hearing on the bill held on March 18, 2009, the 
witness from the Department of the Interior was unable to 
explain why the Obama Administration supports legislative 
recognition of the Lumbees. The witness testified:

          There are rare circumstances when Congress should 
        intervene and recognize a tribal group, and the case of 
        the Lumbee Indians is one such rare case. We support 
        H.R. 31 with amendments as discussed below.

    What are these ``rare circumstances''? The witness did not 
describe them. What if any standard did the Obama 
Administration use to decide the Lumbees warrant federal 
recognition in light of the opposition of previous 
Administration's? None were provided. The witness could not 
even identify who in the Administration made the recommendation 
for the President to endorse Lumbee recognition, or whether 
there were any objective criteria and standards on which the 
endorsement was based. Perhaps the President used ``empathy'' 
rather than rule of law to make his decision. Perhaps the 
decision was a political one. Maybe it is purely arbitrary. In 
any case, it would help the Congress to be informed as to why 
the Executive Branch shifted its historic stance.
    In spite of a number of hearings in the House and Senate 
over the years, there are nevertheless some unanswered 
questions. To date, the Committee does not seem to have 
reliable information as to how many members are in the tribe. 
In the Committee hearing on H.R. 31, the Interior witness 
estimated the Lumbee tribe includes ``over 40,000'' members. 
The Lumbee Chairman subsequently testified there are about 
55,000 members. Why is there a difference of 15,000 between 
what is recognized by Interior and the Tribe? This disparity 
alone is larger than the enrollment of many whole tribes.
    According to a recent news article that was submitted for 
the hearing record, some Lumbees want to open the rolls and 
increase the membership of the tribe even more, but the tribe 
is holding off doing so until Congress passes H.R. 31.
    The House should obtain a certain membership number on 
which to estimate the cost of the bill and its impact on 
resources available to all recognized tribes. The CBO bases its 
dramatic cost estimate of $786 million over five years on an 
assumed enrollment of 54,000 members. If the Lumbee does change 
its enrollment criteria to expand membership after recognition 
is extended, the costs could swell to more than a billion 
dollars over the same five-year period.
    This leads to a related concern. As written, the bill does 
not require members of the Lumbee tribe to be individuals 
possessing Indian ancestry. There is no reason to question the 
intentions of the tribe, which wants to enroll only Indian 
people. But as the Constitution reserves only to Congress the 
power to recognize a tribe, then it is the duty of the Congress 
to ensure that a tribal recognition bill provides a means to 
verify that it is recognizing a tribe of Indian people. To do 
otherwise undermines the whole notion of tribal recognition and 
thereby dishonors all validly recognized tribes.
    On this point, H.R. 31 limits the Secretary only to 
``confirming compliance with the membership criteria set out in 
the Tribe's constitution adopted on November 16, 2001, which 
verification shall be completed within 2 years after the date 
of the enactment of this section.'' This language actually 
prohibits the Secretary from confirming whether all Lumbee 
members descend from historic Indian tribes of North Carolina 
as described in the findings section of the bill. This is 
inappropriate and unreasonable.
    The membership criteria of the tribe, according to the 
Lumbee chairman, consist of two things: proof of descent from 
an ancestor on the tribe's base roll, and maintaining contact 
with the tribe.
    There is no mechanism in H.R. 31 providing that anyone--
other than the Lumbee Tribe itself--to verify that individuals 
listed on the tribe's base roll are, in fact, Indian people. 
The tribe has testified that its members are descendants of 
coastal North Carolina tribes. At a minimum, the Secretary 
should verify that every member of the tribe descends from such 
historic tribes. Such verification has not been done and it is 
not required under H.R. 31.
    Verification of Indian ancestry is justified for the simple 
reason that it is a tenet of Indian law. A number of laws 
enacted over many years provide clear requirements that Indian 
people must be members of Indian tribes. H.R. 31 should be no 
different.
    A final and broader concern with H.R. 31 is that what 
Congress does with this bill could well affect the Committee's 
ongoing work to address the Supreme Court decision in Carcieri 
v. Salazar. Members of the Committee who were present for the 
April 1 hearing on this matter learned that the Supreme Court 
held that the Secretary of the Interior has no authority to 
acquire lands into trust for tribes not under federal 
jurisdiction in 1934, except when authorized by a specific Act 
of Congress. As a result, the Secretary can no longer acquire 
lands in trust without a specific Act of Congress for tribes 
recognized after 1934, and the trust status of the lands of 
such tribes might be open to challenge.
    The Lumbee Tribe was not under federal jurisdiction in 
1934. Thus, anything done with H.R. 31, could set a precedent 
for resolving Carcieri. Under H.R. 31, lands placed in trust 
for the Lumbee Tribe will be secure; meanwhile, lands held in 
trust or proposed for trust by other tribes recognized many 
years ago, are not secure. This kind of inconsistency in 
federal Indian policy is the kind that led to the Carcieri 
controversies in the first place.
    If the solution to Carcieri is to deal with each and every 
post-1934 tribe's trust land application separately in 
Congress, then H.R. 31 is appropriate. If the solution is to 
provide the Secretary of Interior with appropriate authority to 
acquire lands in trust, then H.R. 31 is not appropriate.
    While the Committee has held a hearing on Carcieri, there 
seems to be no consensus on how to resolve it. We have received 
no testimony from the Department, and none of the tribes, 
states, counties, cities, private land owners and other 
concerned interests have had an opportunity to testify in the 
Committee as of the time the report for H.R. 31 is filed.
    It would be wise to postpone Floor action of any 
recognition bills until the Committee acquires a better 
understanding of the impacts of Carcieri and what to do about 
it.
                                                      Doc Hastings.