[Senate Hearing 109-610]
[From the U.S. Government Printing Office]
S. Hrg. 109-610
LUMBEE RECOGNITION ACT
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
TO PROVIDE FOR THE ACKNOWLEDGMENT OF THE LUMBEE TRIBE OF NORTH CAROLINA
JULY 12, 2006
S. Hrg. 109-610
LUMBEE RECOGNITION ACT
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
TO PROVIDE FOR THE ACKNOWLEDGMENT OF THE LUMBEE TRIBE OF NORTH CAROLINA
JULY 12, 2006
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2006
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COMMITTEE ON INDIAN AFFAIRS
JOHN McCAIN, Arizona, Chairman
BYRON L. DORGAN, North Dakota, Vice Chairman
PETE V. DOMENICI, New Mexico DANIEL K. INOUYE, Hawaii
CRAIG THOMAS, Wyoming KENT CONRAD, North Dakota
GORDON SMITH, Oregon DANIEL K. AKAKA, Hawaii
LISA MURKOWSKI, Alaska TIM JOHNSON, South Dakota
MICHAEL D. CRAPO, Idaho MARIA CANTWELL, Washington
RICHARD BURR, North Carolina
TOM COBURN, M.D., Oklahoma
John Tahsuda, III, Majority Staff Director
Sara G. Garland, Minority Staff Director
C O N T E N T S
S. 660, text of.................................................. 3
Burr, Hon. Richard, U.S. Senator from North Carolina......... 13
Campisi, Jack, anthropologist consultant, Lumbee Tribe of
North Carolina............................................. 28
Dole, Hon. Elizabeth, U.S. Senator from North Carolina....... 9
Dorgan, Hon. Byron L., U.S. Senator from North Dakota, vice
chairman, Committee on Indian Affairs...................... 9
Fleming, R. Lee, director, Office of federal Acknowledgment,
Department of the Interior................................. 13
Goins, James Ernest, tribal chairman, Lumbee Tribe of North
Hicks, Michell, principal chief, Eastern band of Cherokees... 26
McCain, Hon. John, U.S. Senator from Arizona, chairman,
Committee on Indian Affairs................................ 1
McIntyre, Hon. Mike, U.S. Representative from North Carolina. 11
Locklear, Arlinda F., attorney, Lumbee Tribe, North Carolina. 24
Thomas, Hon. Craig, U.S. Senator from Wyoming................ 9
Campisi, Jack................................................ 37
Fleming, R. Lee.............................................. 45
Goins, James Ernest (with attachment)........................ 54
Hayes, Hon. Robin, U.S. Representative from North Carolina... 47
Hicks, Michell............................................... 74
Locklear, Arlinda F.......................................... 83
Additional material submitted for the record:
Easley, Mike, Governor, North Carolina, letter (with
Summary of Concerns of Tuscarora Nation of Indians........... 48
Tuscarora History............................................ 53
Magnotta, Katherine, chairwoman, Tuscarora Nation of Indians,
Siouan Indians of Lumbee River, report 204................... 104
Public Law 570............................................... 110
Hearing before the Committee on Interior and Insular Affairs,
Subcommittee on Indian Affairs, July 22, 1955.............. 111
Congressional Record, February 20, 1956...................... 134
United States Code, 84th Congress Second Session, 1956....... 136
Brooks v. United States; Case No. 29-73...................... 139
The Croatan Indians of Robeson County, North Carolina, James
E. Henderson, superintendent, Cherokee Nation, December 11,
Probable Identity of the Croatan Indians, Dr. J.R. Swanton,
Smithsonian Institution, Washington, 1933.................. 168
Indians of Robeson County, D'Arcy McNickle, Washington BIA,
May 1, 1936................................................ 175
Baker Report, 1935........................................... 189
Pearlman Report, November 1935............................... 280
Seltzer Report, 1936......................................... 362
Indians of North Carolina, Report No. 677, September 19, 1914 389
LUMBEE RECOGNITION ACT
WEDNESDAY, JULY 12, 2006
Committee on Indian Affairs,
The committee met, pursuant to notice, at 9:30 a.m. in room
106, Senate Dirksen Office Building, Hon. John McCain (chairman
of the committee) presiding.
Present: Senators McCain, Dorgan, Thomas, and Burr.
STATEMENT OF HON. JOHN McCAIN, U.S. SENATOR FROM ARIZONA,
CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
The Chairman. Good morning. The committee will come to
This morning the committee will receive testimony on S.
660, the Lumbee Recognition Act, which was introduced by
Senators Dole and Burr. The Lumbees have pursued Federal
recognition for their community as an Indian tribe for over 100
years, and it appears they have garnered significant support
for those efforts within their State. In 1956, Congress
recognized the long history of the Lumbee Tribe and individual
Lumbees, but instead of welcoming the tribe into the family of
federally recognized tribes, in one statute Congress both
recognized the tribe and terminated it.
For the record, my position has generally been to oppose
Congressional recognition. There is an administrative process
at the Department of the Interior providing a rigorous review
of groups seeking to be recognized as Indian tribes, and I am
usually in favor of relying on the expertise of that process to
establish the legitimacy of these groups. Nevertheless, I
understand that the 1956 Lumbee Act was enacted during the
termination period of the 1950's, a time when many of our
Indian tribes were not treated fairly.
I also understand the Lumbee Tribe submitted a petition
with the Department of the Interior some years ago, and were
told that they are statutorily barred from that process by this
1956 act. The frustration felt by this community in being
unfairly caught in no man's land is also entirely
understandable. S. 660 would address this injustice by amending
the 1956 act to provide full Federal recognition to the tribe.
However, Congressional recognition of tribes usually engenders
some controversy, and this situation appears to be no
The witnesses today will provide testimony both pro and con
as to the unique history of the Lumbee. I also welcome our
colleagues from the Senate and House who have sponsored this
legislation. Vice Chairman Dorgan.
[Text of S. 660 follows:]
STATEMENT OF HON. BYRON L. DORGAN, U.S. SENATOR FROM NORTH
DAKOTA, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
Senator Dorgan. Mr. Chairman, thank you very much.
When reading the briefing material for this hearing, I
asked for a time line to be prepared for me. So over 3 pages
came to me with a time line, starting back in the early 1700's,
and it goes on and on and on. This is a very unusual, very
interesting and in some ways controversial issue. I am
interested in learning as much as I can from this hearing, as
much as is available. We want to know about the Lumbee Tribe
and its history and what it has been confronted with with
respect to the 1956 act and other related issues.
So we recognize this is a controversial issue. We think the
best way to address it is to have a hearing, have all the sides
come and present testimony. We are very appreciative that many
of you have done so today. And I welcome our colleagues as
The Chairman. Senator Thomas.
STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM WYOMING
Senator Thomas. Thank you, Mr. Chairman. I don't have a
statement, really. I appreciate your having this hearing.
However, there was some talk about bringing this to the floor
directly, and I think it should properly have a hearing, and I
appreciate that. Thank you.
The Chairman. Thank you very much, Senator.
We now would like to welcome our dear friend and colleague,
the Honorable Elizabeth Dole, and our friend from the House of
Representatives, the Honorable Mike McIntyre. Welcome, Senator
Dole, and thanks for being here.
STATEMENT OF HON. ELIZABETH DOLE, U.S. SENATOR FROM NORTH
Senator Dole. Thank you, Mr. Chairman.
Mr. Chairman, Mr. Vice Chairman, thank you very much for
holding this important hearing today. Senator Thomas, Senator
Burr, delighted to be with you and to have an opportunity to be
with you and to have an opportunity to express my deepest
thanks to each of you for your leadership on so many issues
affecting Native Americans.
We are here this morning to discuss tribal recognition. The
Lumbee Tribe of North Carolina has waited, Mr. Chairman, more
than 100 years for full Federal recognition and 50 years in
order to right a wrong that denied them the benefits granted to
every other recognized tribe. I introduced the legislation we
are considering today, the Lumbee Recognition Act, because I
deeply believe that it is the right thing to do. In fact, it
was the very first bill that I introduced as a new member of
the U.S. Senate.
With more than 50,000 members, the Lumbee Tribe is the
largest east of the Mississippi River, as well as the largest
non-federally recognized tribe in America. Joining us today are
Lumbee Chairman Jimmy Goins and other members of the Lumbee
Tribe who have journeyed here to make their case yet once
As many of you will remember, this committee held a hearing
on the Lumbee Recognition Act on September 17, 2003, the very
same day that Hurricane Isabel was bearing down on North
Carolina and moving up the East Coast. Undeterred, members of
the Lumbee Tribe traveled in the face of that powerful storm,
determined to make it to their Senate hearing.
It is this resolve of the Lumbees, even after years of
struggles and disappointments, that inspires me to take up this
fight alongside them and to advocate for the recognition they
rightfully deserve. I welcome the support of my good friend,
Senator Richard Burr, who has joined me in introducing the
Lumbee Recognition Act. And I greatly appreciate the hard work
Congressman Mike McIntyre is doing in the House on this issue.
I thank you both for the opportunity to join together today in
In addition, I would like to note the endorsement, Mr.
Chairman, of North Carolina Governor Mike Easley, who wrote
last week to this committee to express his strong support for
Lumbee recognition. Mr. Chairman, I request that the Governor's
comments be included in the record.
The Chairman. Without objection, so ordered.
[Referenced information appears in appendix.]
Senator Dole. For more than a century, the Lumbees have
been recognized as American Indians. North Carolina formally
recognized the tribe in 1885, and 3 years later, in 1888, the
tribe began what has become a very long quest for recognition
and assistance from the Federal Government. Over the years,
many bills were introduced in Congress to provide the Lumbees
with Federal recognition. But these bills were never acted upon
or were passed by only one chamber.
Finally, in 1956, Congress passed the Lumbee Act. But there
was a caveat: The Lumbees were denied the full benefits that
every other federally recognized tribe received. Refusing to
accept this partial nod to their legitimacy and their proud
heritage, the Lumbees and their allies in Congress have been
unrelenting in the request for what the tribe deserves: To be
treated by the Federal Government like every other recognized
There are some who argue that the Lumbee should be required
to go through the Bureau of Indian Affairs [BIA], rather than
through legislation. However, the Lumbee Act of 1956 actually
prohibits the tribe from going through the BIA process. As the
law now stands, the Lumbee Tribe can only be recognized by an
act of Congress. Just one other tribe, the Tiwas of Texas, face
a similarly unfair situation, following the passage of a
comparable bill in 1965.
But in 1987, Congress enacted special legislation to
recognize them. This makes the Lumbees the only tribe in the
country still trapped in this legal limbo and ineligible for
the administrative acknowledgment process because of an earlier
act of Congress.
The BIA process is reserved for tribes whose legitimacy
must be established. As we know, that is certainly not the case
with the Lumbees. Their legitimacy has been established time
and time again. There have been numerous studies by the
Department of the Interior, beginning as early as 1913, then
again in 1914, and yet again in 1933. Each time, it has been
determined that the Lumbees are indeed an Indian tribe,
descended from the historic Cheraw Indians. There is no need to
waste the tribe's or the Government's time and money again.
Let me also underscore, it has been documented by GAO that
getting through the BIA process can be arduous, to say the
least, and lengthy. A 2001 GAO report revealed it can take up
to 15 years to resolve petitions for recognition. And a 2005
follow-up report underscored that even with some improvements
to the BIA process, it would still take years for BIA to work
through its current backlog of recognition petitions and even
longer to consider new petitions. It is clear that even if the
Lumbee could legally go through BIA, this would only impose yet
another lengthy delay on this tribe.
Over the last several years, I have had many opportunities
to visit with the Lumbees. One occasion in particular stands
out in my mind, a 2003-rally in Robeson County with my good
friend, Congressman McIntyre. This rally brought together the
entire community, uniting people of all ages, all races, all
backgrounds for a common goal: Getting the Lumbee Indians the
full recognition and benefits they deserve.
In the last Congress, this committee unanimously approved
the Lumbee Recognition Act. I urge you to once again report
this bill out of the committee as expeditiously as possible.
Simply put, this is about fairness. It is about righting a
wrong and allowing future generations of Lumbees to benefit
from the recognition for which their ancestors have fought
Following Congressman McIntyre, this committee will hear
testimony from several other distinguished panelists, including
Chairman Goins, a dear friend and determined advocate for his
tribe. And Arlinda Locklear, a very talented attorney and
nationally recognized expert on Indian tribes. In 1984,
Arlinda, a member of the Lumbee Tribe, became the first Native
American woman to appear before the U.S. Supreme Court.
Dr. Jack Campisi will testify once again. He is a professor
at Wellesley College and an expert on tribal and Lumbee issues.
Dr. Campisi has actually lived among the Lumbee in Robeson
County while conducting his research.
In closing, let me thank you again, Mr. Chairman, Mr. Vice
Chairman, for holding this important hearing. And I thank you
for the privilege of presenting my heart-felt views on the
issue of fairness for the Lumbee people. Thank you.
The Chairman. Thank you very much, Senator Dole.
Congressman McIntyre, welcome.
STATEMENT OF HON. MIKE McINTYRE, U.S. REPRESENTATIVE FROM NORTH
Mr. McIntyre. Thank you, Senator McCain, good to be with
In addition to Governor Easley's remarks that Senator Dole
pointed out, we would like to have in the record and we would
like to ask unanimous consent to submit the remarks of
Congressman Robin Hayes, who was an original cosponsor of this
bill in the U.S. House.
The Chairman. Without objection, so ordered.
[Prepared statement of Mr. Hayes appears in appendix.]
Mr. McIntyre. Thank you, Senator.
Mr. Chairman and members of the committee, thank you for
this opportunity to testify before you today regarding Federal
recognition for the Lumbee Indians. And a special thanks to my
colleagues, Senators Dole and Senator Burr, for their
leadership and their work on this important effort.
In the late 1500's, when English ships landed on the shores
at Roanoke Island on the North Carolina Coast, the Englishmen
discovered Native Americans. Included among those Native
Americans were both the Cheraw and Pee Dee Indians, who are
direct ancestors of the Lumbee Tribe. Later, in 1888, the
Lumbees made their first effort at Federal recognition. For at
least 500 years, Lumbee Indians have been inhabitants of this
land. And for over one-half the time that our country has been
in existence, 119 of the 230 years, the Lumbee Indians have
been seeking the recognition and respect that they deserve. As
the largest tribe east of the Mississippi and the largest non-
recognized tribe in America, it is unfathomable that this tribe
of 55,000 people has never been fully recognized by our own
Mr. Chairman, the time for Lumbee recognition has come. It
was Congressional action that put the Lumbees in this situation
in 1956, and it will take Congressional action to resolve it.
As my friend, Senator Dole, pointed out, we have a direct
precedent, the Tiwa Tribe of Texas, who was in a similar
situation and that was resolved by Congress, leaving the
Lumbees as the only tribe in this unresolved position.
Mr. Chairman and members of the panel, I was born and
reared in Robeson County, North Carolina, the primary home of
the Lumbee people. I go home there every weekend, and I have
the high honor of representing approximately 40,000 Lumbees who
live in my home county. In fact, there are more Lumbees in
Robeson County than any other racial or ethnic group. The
Lumbee Indians, many of whom, Mr. Chairman, are here in the
audience with us today and traveled throughout yesterday and
the night to be here, are my friends, many of whom I have known
all my life.
They are important to the success of everyday life in
southeastern North Carolina, and their contributions in our
society are numerous and endless. From medicine and law to
business and banking, from the farms and factories to the
schools and churches, from government, military, and community
service, to entertainment and athletic accomplishments, the
Lumbees have made tremendous contributions to our county, our
State, and indeed, our Nation.
In fact, in my home county, the former sheriff and the
current clerk of court, registrar of deeds, chairman of the
county commissioners, superintendent of the public schools, and
the representative in the State legislature of the area where I
live, as well as two of our district court judges and one of
our superior court judges, are all Lumbee Indians, obviously
engendering great respect in our local community and throughout
Mr. Chairman, those contributions are being recognized by
our colleagues. In the U.S. House, through the support of H.R.
21, legislation that I introduced on the day that we were sworn
into the Congress of this session, they have supported the
opportunity to grant Lumbees Federal recognition. I am pleased
to report to the Senate Indian Affairs Committee that 211
members of the U.S. House have cosponsored this recognition.
These cosponsors come from different parts of the country and
from both political parties. But they all agree that the time
for recognition has come.
Lumbee contributions are also being recognized back home by
both the public and private sector, from city councils to
county commissions, from the chamber of commerce to
Southeastern Regional Medical Center, all have endorsed the
effort to grant the Lumbees Federal recognition.
Mr. Chairman, in conclusion, let me urge this committee and
the U.S. Congress not to delay any more on this issue. Justice
delayed is justice denied. As you will hear from the next
panel, the evidence is clear, cogent and convincing. It is time
to say yes, yes to dignity and respect, yes to fundamental
fairness, yes to decency, yes to honor, yes to Federal
recognition. It is time for discrimination to end and
recognition to begin.
Thank you again for this opportunity to testify. I look
forward to working with you and the committee for this long
overdue recognition. May God grant that justice will finally be
done. With your help, I am confident it will.
[Prepared statement of Mr. McIntyre appears in appendix.]
The Chairman. Thank you both very much. We appreciate your
taking the time to appear before the committee, and we will
look forward to hearing the other witnesses. Thank you very
Our next panel is R. Lee Fleming, director, Office of
Federal Acknowledgment, Department of the Interior. Before we
begin with Mr. Fleming, I note that Senator Burr is here. Would
you have an opening statement or comment, Senator Burr?
STATEMENT OF HON. RICHARD BURR, U.S. SENATOR FROM NORTH
Senator Burr. Mr. Chairman, thank you.
After the testimony from my colleagues, Senator Dole and
Congressman McIntyre, I think everything has been said. But I
would like to take this opportunity to urge my colleagues on
this dias that they concentrate on two words that they heard:
Equity and fairness. I believe that is at the root of why this
hearing is being held, why Senator Dole has been so passionate
at pursuing a legislative remedy. It is to achieve equity and
fairness. And I believe that if you look at the history of this
issue in detail, you will find that this Government has not met
that threshold as it relates to this issue.
I thank the Chair.
The Chairman. Thank you very much, Senator Burr.
Mr. Fleming, welcome. Please proceed.
STATEMENT OF R. LEE FLEMING, DIRECTOR, OFFICE OF FEDERAL
ACKNOWLEDGMENT, DEPARTMENT OF THE INTERIOR
Mr. Fleming. Good morning, Mr. Chairman and members of the
committee. My name is Lee Fleming, and I am the director of the
Office of Federal Acknowledgment at the Department of the
Groups seeking to be acknowledged as Indian tribes are
reviewed through the office that I direct, and I am here today
to provide the Administration's testimony on S. 660, the Lumbee
The acknowledgment of the continued tribal existence of
another sovereign is one of the most solemn and important
responsibilities delegated to the Secretary of the Interior,
which the Department administers through its acknowledgment
regulations at 25 C.F.R. Part 83. Federal acknowledgment of
tribal status enables Indian tribes to participate in Federal
programs and services and establishes a government-to-
government relationship between the United States and the
Indian tribe. Acknowledgment carries with it certain immunities
and privileges which may include exemptions from State and
local jurisdiction and the ability of newly acknowledged Indian
tribes to undertake unique economic opportunities.
Under the Department's acknowledgment regulations,
petitioning groups must demonstrate that they meet each of the
seven mandatory criteria. The petitioner must first,
demonstrate that it has been identified as an American Indian
entity on a substantially continuous basis since 1900; second,
show that a predominant portion of the petitioning group
comprises a distinct community and has existed as a community
from historical times until the present; third, demonstrate
that it has maintained political influence or authority over
its members as an autonomous entity from historical times until
the present; fourth, provide a copy of the group's present
governing document, including its membership criteria; fifth,
demonstrate that its membership consists of individuals who
descend from an historical Indian tribe or from historical
Indian tribes that combined and functioned as a single,
autonomous political entity, and provide a current membership
list; sixth, show that the membership of the petitioning group
is composed principally of persons who are not members of any
acknowledged North American Indian tribe; and last, seventh,
demonstrate that neither the petitioner nor its members are the
subject of Congressional legislation that has expressly
terminated or forbidden the Federal relationship.
The Department recognizes that under the U.S. Constitution,
Congress has the authority to recognize a distinctly Indian
community as an Indian tribe. But along with that authority, it
is important that all parties have the opportunity to review
all of the information available before recognition is granted.
That is why the Department of the Interior supports a
transparent recognition process that requires groups to go
through the acknowledgment process.
The Department's regulations provide a deliberative,
uniform mechanism to review and consider groups seeking Indian
tribal status. Notwithstanding that preference, the Department
recognizes that some legislation is needed, given the unique
status of certain Indians in North Carolina.
In 1956, Congress designated Indians then residing in
Robeson and adjoining counties of North Carolina as the Lumbee
Indians of North Carolina. Congress went on to note the
Nothing in this Act shall make such Indians eligible for
any services performed by the United States for Indians because
of their status as Indians and none of the statutes of the
United States which affect Indians because of their status as
Indians shall be applicable to the Lumbee Indians.
In 1989, the Department's Office of the Solicitor advised
that the 1956 act forbade the Federal relationship within the
meaning of the acknowledgment regulations and that the Lumbee
Indians were therefore precluded from consideration for Federal
acknowledgment under the administrative process. Because of the
1956 act, legislation is necessary for the Lumbee Indians to be
afforded the opportunity for tribal status under the
Department's regulations. The Department would welcome the
opportunity to assist the Congress in drafting such
If Congress elects to bypass the regulatory process in
favor of legislative recognition of the Lumbee in a manner
granting full sovereign rights, then the Department makes the
following comments on S. 660: S. 660 extends Federal
recognition to the Lumbee Tribe of North Carolina and permits
any other group of Indians in Robeson and adjoining counties
whose members are not enrolled in the Lumbee Tribe to petition
under the Department's acknowledgment regulations. The Office
of Federal Acknowledgment has received letters of intent to
petition from six groups from Robeson and adjoining counties.
These groups may overlap with each other in governing bodies,
membership and ancestry.
In addition, we have identified over 80 names of groups
that derive from these counties and all are affected by the
1956 Lumbee Act. Some of these groups also claim to be the
Lumbee Tribe. Therefore, we recommend Congress clarify the
Lumbee group that would be granted recognition under this bill.
One of the benefits or privileges available to recognized
Indian tribes is the ability to conduct gaming under the Indian
Gaming Regulatory Act. Under S. 660, any fee land that the
Lumbee seeks to convey to the United States to be held in trust
shall be considered an off reservation trust acquisition if the
land is located within Robeson County, North Carolina, and
gaming will be allowed on those lands under the provisions of
Under S. 660, the State of North Carolina has jurisdiction
over criminal and civil offenses and actions on lands within
North Carolina owned by or held in trust for the Lumbee Tribe
or any dependent Indian community of the Lumbee Tribe. This
bill, however, does not address the State's civil regulatory
jurisdiction which includes jurisdiction over gaming, zoning
and environmental regulations.
We are concerned with the provision requiring the
Secretary, within 1 year, to verify the Lumbee membership and
then to develop a determination of needs and budget to provide
Federal services to the Lumbee group's eligible members. In our
experience, verifying a tribal role is an extremely involved
and complex undertaking that can take several years to resolve
with much smaller tribes. Moreover, S. 660 is silent as to the
meaning of verification for inclusion on the Lumbee group's
In addition, S. 660 may raise a constitutional problem by
purporting to require the President to submit annually to the
Congress as part of his annual budget submission a budget that
is recommended by the head of an executive department for
program services and benefits to the Lumbee. Under the
recommendations clause of the U.S. Constitution, the President
submits for the consideration of Congress such measures as the
President judges necessary and expedient.
Should Congress choose not to enact S. 660, the Department
feels that at a minimum, Congress should amend the 1956 act to
afford the Lumbee Indians the opportunity to petition for
tribal status under the Department's acknowledgment
regulations. This concludes my prepared statement. I would be
happy to answer any questions the committee may have.
[Prepared statement of Mr. Fleming appears in appendix.]
The Chairman. Thank you very much, Mr. Fleming.
If legislation were enacted to repeal the 1956 act, so that
the Lumbees can proceed through the normal process, can you
estimate how many years it would take to make a final decision
on a Lumbee petition from the date of enactment until final
Mr. Fleming. Currently, the Office has a workload of 9
groups on active and 10 groups that are ready. We have 4 teams
that work on these decisions; 19 divided by 4 gives you an idea
of the number of years that it will take to eliminate the
workload. So we are looking at at least a wait of 14 into 19 is
4 years, plus, before we begin an actual review of the Lumbee
The Chairman. You mentioned that there are other entities
out there that under this bill would be somehow addressed, is
that correct? In other words, according to your statement, as I
understand it, you say we have identified over 80 names of
groups that derive from these counties and are affected by the
1956 act. Some of these groups claim to be the Lumbee Tribe.
Elaborate a little bit on that.
Mr. Fleming. We have six formal petitioning groups from
Robeson and adjoining counties. Under the 1956 act that
Congress enacted, any individuals or groups from Robeson and
adjoining counties is designated as Lumbee Indian. So when a
petitioning group submits a petition from Robeson and adjoining
counties, then we know that the 1956 act prohibits us from
moving forward in reviewing those petitions.
Six groups, the Cherokee Indians of Robeson and Adjoining
Counties, the Lumbee Regional Development Association, the
Cherokee Indians of Hoke Count, Inc., the Tuscarora Nation of
North Carolina, the Tuscarora Nation East of the Mountains, and
the Tuscarora Nation of Indians of the Carolinas, those are
groups that are in Robeson and adjoining counties that are
affected by the Lumbee Act.
In our administrative correspondence files, we have
identified the names of other groups that have sent in
correspondence claiming that they are an Indian tribe located
in Robeson and adjoining counties. And as I mentioned in my
testimony, that there is an overlapping of membership, there is
an overlapping of some of the governing bodies and there is an
overlap of the ancestry of these groups with the Lumbee.
The Chairman. How do you address that issue, given, if we
passed S. 660, how would we address these multiple conflicting
names and groups?
Mr. Fleming. This is the complex issue. Under our
regulations, we have a thorough review of the membership lists.
We have a review of the ancestries and we would know who is
who. If this is enacted, sure enough, the Lumbee Tribe of North
Carolina would be acknowledged. But then you would have a lot
of these groups saying, perhaps our group was acknowledged. So
there needs to be a clearer definition of who is actually being
acknowledged in the bill.
The Chairman. And you also mentioned that the legislation
requires that within 1 year there would have to be, 40,000
people would be listed and authenticated, have access to the
Lumbee's tribal roll. Do you think you could accomplish that in
Mr. Fleming. Honestly, I do not think it could be
accomplished in 1 year. At one hand, 34,000 members was a
figure that was provided. The 2000 Federal census has 51,913
members. And then we heard earlier around 53,000 members. Even
with smaller tribes, we have estimated that it would take 3 to
4 years to verify the membership rolls. Because the membership
rolls are representative of the enrolment files of each and
every individual of the tribe.
And so it is critical that it be well defined and in the
case where we have so many other groups that may be involved,
we have to review their records and a clear definition has to
be made. Because ultimately there are programs and services
that are going to be afforded to the individuals who are
members of a federally-recognized tribe.
The Chairman. And the issue of, with recognition of course
would come the normal process if the tribe decided to engage in
Indian gaming, is that true?
Mr. Fleming. That is right. There is a regulatory process
for Indian gaming.
The Chairman. Thank you very much, Mr. Fleming.
Senator Dorgan. Mr. Fleming, thank you very much.
The groups that you now say or you now recognize are
prohibited from petitioning would all be groups considered part
of the Lumbee Tribe, is that correct? I mean, you have named
disparate groups, or maybe not disparate groups, but they all
think that they are a tribe. All of them would be prohibited at
this point, as I understand you, from seeking to petition for
Mr. Fleming. They would be prohibited from being reviewed
under our acknowledgment regulations.
Senator Dorgan. So whatever that universe is, that is what
you describe to be the Lumbee Tribe?
Mr. Fleming. That is correct.
Senator Dorgan. But
Mr. Fleming. The potential. The potential.
Senator Dorgan. The definition of that universe is not very
clear at this point.
Mr. Fleming. The 1956 act was not clear. But it was clear
in that individuals located in Robeson and adjoining counties
are considered Lumbee individuals.
Senator Dorgan. Mr. Fleming, in the briefing that I had
read last evening from the staff, it said that between 1899 and
1956, there were a number of attempts made to provide Federal
recognition for the Lumbees. The Congressional hearings were
held, the Department of the Interior investigated prepared
reports in 1912, 1914, and 1933. And the summation of all of
that indicated a belief that the Lumbee tribal group or
Cherokee Indians of Robeson County, as they were known, were
probably descended from an historic Indian tribe. However, the
Department of the Interior also indicated an inability to
establish with absolute certainty with which historic Indian
tribe the group was affiliated.
Have you gone back and reviewed the attempts in 1912, 1914,
and 1933 to seek recognition? And that was at a time prior to
the 1956 act when they were not prohibited from seeking
recognition. Have you reviewed that at all and have any
understanding of what difficulties were encountered then
relative to what you would encounter now?
Mr. Fleming. Yes, Senator Dorgan; I have looked at the
previous bills and reports. And there have been approximately
26 bills introduced since 1899. These bills and the associated
reports have provided possible historical tribes and there are
quite a number of them. I do have a list of the different names
of historical tribes that have appeared in these bills, as well
as the associated reports.
Senator Dorgan. Mr. Fleming, I am really inquiring more
about the Department of the Interior investigations that
occurred as a result of the Lumbees back at that point, prior
to 1956, on several occasions seeking recognition through a
process that would have been available to them. Have you
reviewed the Interior Department's evaluations and
investigations at that point?
Mr. Fleming. Yes; I have.
Senator Dorgan. What is your conclusion on that?
Mr. Fleming. I would say that a lot of the previous reports
were identifying historical tribes that may be associated with
the Lumbee. One report indicated that they descend from the
Cherokee, another report from the Cheraw, another report from
the Croatan. One report included a whole group of different
historical tribes, such as the Eno, the Hattaras, the Keowee,
the Shakori. Even John R. Swanton, who is a renowned
anthropologist, in a 1946 report for the Bureau of American
Ethnology, stated that there were several possibilities that
the Lumbee could descend from either the Cheraw, the Siouan
Indians of Lumber River, the Keowee, and another group known as
the Waxhaw. There is a whole number of possibilities. But in
his report, he felt that there was a strong connection perhaps
to the Cheraw or the Keowee.
Senator Dorgan. Just a couple of other brief questions. If
recognized, would this be one of the larger Indian tribes in
the country, in your opinion?
Mr. Fleming. It would be one of the larger Indian tribes in
the United States.
Senator Dorgan. And if recognized, prior to recognition,
with respect to the issue of gaming, I assume there are two
issues here, first, is the ability to engage in a compact for
gaming, and the second, is the ability to access for tribal
members the Indian health service and housing and other things
that are available to recognized tribes. Fee land that would be
purchased prior to recognition in any part of that county could
be turned over to the Federal Government to be held in trust,
and then that land would be a part of the gaming opportunities,
provided that it would be acceptable in a compact with other
officials, would that be correct?
Mr. Fleming. That is my understanding.
Senator Dorgan. Mr. Chairman, I thank Mr. Fleming for his
background. It was very helpful.
The Chairman. Senator Thomas.
Senator Thomas. Thank you, Mr. Chairman.
You know, this is kind of confusing. Apparently this tribe
is very old, 100 years, I think she said something about that.
And then it went through the 1956 thing, that is 50 years ago.
And maybe you touched on this, but I still don't understand.
There have been lots of tribes that go through lots of problems
and get listed and so on. What has been unique and peculiar
about this? Why hasn't this gone through the regular process?
Mr. Fleming. It is because of the 1956----
Senator Thomas. Well, what about before that? Didn't they
ever try before that?
Mr. Fleming. Yes; there are considerable bills that have
been submitted to Congress prior to 1956, the first being in
1899. And as you had heard earlier, even North Carolina had
acknowledged the Croatan Indians in----
Senator Thomas. But Wyoming didn't recognize the Arapahos.
What is unique about this whole thing? Why isn't this done like
Mr. Fleming. I think the uniqueness is the lack of pinning
down the historical tribe. And as you heard, there were quite a
number of possibilities. You even heard that there was contact
with the early colonists, as early as 1585. But from 1585 to
1885, 300 years, there is a considerable period of time where
evidence would be needed to fully understand who this group was
Senator Thomas. So you still can't identify this as a
tribe, is that right, based on what you know now?
Mr. Fleming. We have not been able to review the evidence
to come out with a determination.
Senator Thomas. And would you be able to do that, given the
Mr. Fleming. If the 1956 act is amended to allow the
thorough review, we would be able to come out with a proposed
finding, share that finding with all parties concerned, invite
public comment and then review those comments and then
eventually come out with a final determination.
Senator Thomas. I see. So did you say there has just been
one tribe authorized by Congressional action, such as is being
asked for here?
Mr. Fleming. There have been other tribes that have had
Congressional recognition. And we can provide you a list of all
Senator Thomas. Do you mean they have not gone through the
process that you are talking about?
Mr. Fleming. There have been a few, yes.
Senator Thomas. What has been the basis for that?
Mr. Fleming. Some of them have been involved in Indian land
settlement claims and as a result, they were recognized by
Congress as Indian tribes.
The Chairman. When was the last time there was legislation
such as this passed, Mr. Fleming?
Mr. Fleming. I believe it was in the Omnibus Bill. It was
the Shawnee, which is located in Oklahoma. And that was in
2000, I believe, December 2000.
Senator Thomas. But that was a land controversy, is that
Mr. Fleming. In that case, it was multi-complex, the
Shawnee were a group that was incorporated in with the Cherokee
Nation. There were previous treaties involved that had grouped
the historical Shawnee with the historical Cherokee. In order
for it to be recognized outside the Cherokee Nation, then that
legislation was introduced.
Senator Thomas. I see. Okay. Thank you very much, Mr.
Chairman. This is a confusing thing, to say the least.
The Chairman. Thank you, Senator Thomas.
Senator Burr. Thank you, Mr. Chairman.
I was just looking at the chart of the tribes that have
been recognized since 1960, either by the process or by
Congressional recognition. I didn't have time to count them
all. I think there are more that have been recognized by
Congressional recognition than by the administrative process.
Mr. Fleming, I would ask you to supply for the committee the
precise numbers in every category.
And let me try to clarify Senator Thomas' question. There
were a number of folks that were caught in the 1956 act,
recognized and then in the same act, their ability to go
through a formal process taken away. Who, other than the
Lumbees, are still waiting to have that resolved?
Mr. Fleming. There are several groups, several tribes that
were terminated during that period of time where there was the
national policy that Congress held and that affected a great
number of tribes in California and Oregon and other parts of
the country. A good number of those tribes have been restored.
In fact, in 1994, Congress passed the Federally Recognized
Indian Tribe List Act, which repudiated the termination policy,
and also had a statement that it would put a priority on
restoring a terminated tribe.
Congress has the authority to terminate a tribe, and
Congress has the authority to restore that tribe. So if a tribe
had been terminated by Congress, then only Congress may restore
that tribe. There are still a few that have not yet been
restored, either in California or Washington.
Senator Burr. Let me restate that. Any tribe that Congress
chooses to terminate only Congress can re-recognize that tribe,
is that what you said?
Mr. Fleming. Restore, correct.
Senator Burr. Okay. I think that is important for my
colleagues up here to understand why we have been asked to be
involved. Is it not the case that other tribes that were caught
in the 1956 termination having in fact been Congressionally
Mr. Fleming. A good number have been restored.
Senator Burr. Okay. Let me go, if I could, to sort of the
BIA criteria, if one were to go that route. The BIA considers
from historical times until present. What is historical times?
Mr. Fleming. Historical times is first sustained contact
with the Europeans.
Senator Burr. Considering that most tribes in the United
States don't have or didn't keep documented evidence of having
existed, political influence, going out of the criteria down
the list, from historical times until present, how many tribes
that were recognized before we had a BIA process would be
recognized under the criteria established today?
Mr. Fleming. There are 561 federally recognized tribes.
Each of these tribes have unique histories. They come from
various parts of the country. There are records that are
available on the Federal level, the State level, the county
level, the local level, the tribal level or group level. On all
of those levels, there is tremendous evidence that can be
researched and found for this process. And we do have a lot of
groups that have been successful in documenting the histories.
Of the 561 federally recognized tribes, I would venture to
say they would all be able to demonstrate meeting all the seven
Senator Burr. All the seven criteria. So for Senator
Thomas, and I don't even know if he has tribes, I assume that
he does, where the U.S. Government didn't go to until several
years after this country was created, how do they prove a
historical political influence when the U.S. Government didn't
Mr. Fleming. There are a lot of colonial records that are
available. You have documents that will demonstrate that there
were leaders of these tribes. There are documents that will
show that there are individuals who followed the leadership.
Those are the types of documents that are provided in this
process to demonstrate political authority.
Senator Burr. But everybody has to meet all seven?
Mr. Fleming. All seven must be met.
Senator Burr. Let me go to 83.7(g), the last one. Neither
the petitioner nor its members are the subject of Congressional
legislation that has expressly terminated or forbidden the
Federal relationship. Is that not what we did in the 1956 act?
Mr. Fleming. Exactly.
Senator Burr. Are the Lumbees not, will they not flunk
Mr. Fleming. This is the criterion that has been the
subject of discussion. This is the one that we have
Senator Burr. So we would have to change the BIA criteria
for the Lumbees to have any chance of going through BIA review
and being accepted?
Mr. Fleming. The Department has recommended amending the
1956 act to allow all groups of Robeson and adjoining counties.
True, we could
Senator Burr. Rather than change the BIA criteria, we would
just go back in history and say, you know, we really didn't
mean it in 1956 that you couldn't participate in this. So we
are going to give you 83.7(g).
Mr. Fleming. We look forward to the opportunity to working
with the committee staff, as I stated in the testimony, in
crafting legislation to allow for an amendment to the 1956 act.
Senator Burr. You are actually a tribal member, aren't you?
Mr. Fleming. I am.
Senator Burr. Which tribe?
Mr. Fleming. The Cherokee Nation in Oklahoma.
Senator Burr. I don't think that anybody questions your
commitment. You and I have met several times. I think that your
knowledge is incredible for Native Americans. I feel fortunate
that we have you in the capacity that we do.
You said that you are not opposed to the bill, but that it
needs clarification and improvement, so that it doesn't reach
out further than what the intent is as it relates to potential
petitioners. Is that accurate?
Mr. Fleming. The Department's position is that the group go
through the process.
Senator Burr. Correct me if I am wrong, I heard in your
statement you are not opposed to the bill, but believe it needs
clarification, if that were the choice that Congress chose.
Mr. Fleming. I believe my statement did not present a
position of opposition and it did not present a position of
Senator Burr. Okay. I might have written it as a paraphrase
versus a quote.
Through the BIA process and anybody who has petitioned
through it and been recognized as a tribe, have any of those
petitioners faced the situation where additional groups have
filed petitions at the same time they were going through
recognition, or is this just unique to the Lumbees?
Mr. Fleming. There are many groups that have, groups that
are possibly related. Some groups, when they get into the
process, they may even splinter because of a political conflict
that occurs. We have several groups that are from the same
region. There could be the possibility of overlapping of
membership. There are a lot of complexities and the answer to
your question, yes, there are other groups that
Senator Burr. So this is not unusual. It just so happens
that the name of potentially a petitioner would be the Lumbee,
but as more people see that that might be an option, they have
decided to file petitions on their behalf, their interest. And
that is not unusual in applications that have come in in the
Mr. Fleming. Correct.
Senator Burr. Good. In the 1930's, we had the Indian
Reorganization Act. Is it true that the Office of Indian
Affairs recommended that the tribe put land in a trust to set
up for resettlement? Are you aware of that?
Mr. Fleming. I believe in some of the reports there had
been Indian Reorganization Act activities that took place
during that time period. I am not well versed in the details.
Senator Burr. Would that not suggest that the Office of
Indian Affairs believed that this was a tribe that was going to
be recognized, or would they have gone through that process?
Mr. Fleming. I believe that there were many groups
throughout the United States that were being looked at at that
time for the Indian Reorganization Act. There was a whole
process involved. But I do not know precisely all the details
that may have been affected to some of these groups.
Senator Burr. Mr. Chairman, I realize that the committee
has been very patient with me. I think at the heart of this is
that there is from 1888 up until 1956 where the Lumbees did
follow the appropriate process in this country. Office of
Indian Affairs reviewed, 1912, Government went down, as a
matter of fact, the folks who went down and did that review
came back and made a recommendation that they are a tribe, they
should be recognized. The Department of the Interior ignored
it, in 1915 the same thing happened. In 1930 the Office of
Indian Affairs, based upon the Reorganization Act suggested
that resettlement land might be put in a trust. In 1956,
everybody on the committee knows what happens.
In the 1960's, we rewrote what the criteria was going to be
for that point forward for recognition. Everything that we look
at is sort of thrown out the window. I would only ask you one
last question. The results of the 1956 act, as it relates
specifically to the Lumbees and the fact that they were
recognized and terminated in the same legislation, that that
termination denied them the ability at any point between then
and today to go through the BIA process and what happened to
others who were caught in that same 1956 recognition and
termination but recognized by Congress, do you believe that the
Lumbees have been treated equitably and fairly?
Mr. Fleming. I believe that the Lumbee have had an
opportunity, since 1978, to go through the process. And in
fact, they did initiate a letter of intent and submitted a
documented petition. As the Department was preparing the
technical assistance review letter to understand any
deficiencies in the evidence under the seven mandatory
criteria, this is when the question of the 1956 act appeared.
And there was a concern over 83.7(g).
Because of that, then the Office of the Solicitor of the
Department of the Interior was asked to review the 1956 act.
That is when the opinion came through that the Department could
not move forward in the review of the Lumbee Petition, as well
as other groups of Robeson and adjoining counties. That is why
the Department has consistently advised or recommended that the
1956 act be amended to allow the same equitable action that has
been provided to the other petitioners that have gone through
Senator Burr. I appreciate the answer on behalf of the BIA.
I really asked the question from the standpoint of you, Mr.
Fleming, as a Native American. Do you believe that the Lumbees
have been treated fairly and equitably in comparison to
everybody else that went through the 1956 act? It is probably
unfair to ask for a personal observation from a Federal
employee, so I will not solicit the answer, I will only say to
the chairman, thank you for your accommodation of time. I yield
The Chairman. Mr. Fleming, on several occasions you have
appeared before this committee. I appreciate your informed and
unbiased opinion that you have provided this committee numerous
times in the past, including today. I know that Senator Dorgan
shares my view. Thank you very much. Thank you for being here.
Mr. Fleming. Thank you.
The Chairman. The next panel is Jimmy Goins, tribal
chairman, Lumbee Tribe of North Carolina. He is accompanied by
Arlinda Locklear, attorney for the Lumbee Tribe. Michell Hicks,
principal chief, Eastern Band of Cherokees, and Dr. Jack
Campisi, Anthropologist Consultant to the Lumbee Tribe of North
I would like to welcome the witnesses. We will begin with
Chairman Goins. Your complete written statements will be made
part of the record, without objection. Please proceed, Chairman
STATEMENT OF JAMES ERNEST GOINS, TRIBAL CHAIRMAN, LUMBEE TRIBE
OF NORTH CAROLINA, ACCOMPANIED BY ARLINDA F. LOCKLEAR, ESQUIRE,
ATTORNEY FOR THE LUMBEE TRIBE OF NORTH CAROLINA
Mr. Goins. Good morning, Chairman McCain and Vice Chairman
Dorgan, Senator Thomas. Thank you for the opportunity to
express my people's strong support for S. 660.
I bring the Lumbee Tribe's greetings and appreciation to
our great friends, Senator Dole and Senator Burr. The tribe and
the members who are here today express our gratitude for this
I have with me this morning Dr. Jack Campisi, an
anthropologist who is a nationwide expert on non-federally
recognized tribes, and who has years of experience with us
Lumbees; and Arlinda Locklear, the tribe's lawyer on the
recognition effort and also a member of the tribe.
I am Jimmy Goins, chairman of the Lumbee Tribe. All three
of us have written statements that I request be made part of
the hearing record.
The Chairman. Without objection.
Mr. Goins. Dr. Campisi will orally summarize his statement
and all three of us will be available for questions from the
My kinsmen signed a petition that first sought Federal
recognition for our people in 1888. The State had just
recognized the tribe and set up a school system for the Lumbee
children. But the tribe had too little funding and asked
Congress for help. Congress referred our petition to the
Department of the Interior, and the Department said no to our
people. The Department said it would cost too much.
Ever since, the Department has opposed recognition of the
Lumbee Tribe because of the cost of service, not because we are
not an Indian tribe. Since 1888, our people have repeatedly
sought Federal recognition from Congress directly and from the
Department of the Interior.
The most insulting process we were subjected to came from
the Department of the Interior. After the passage of the Indian
Reorganization Act, the Department told our people that if we
could be certified as one-half or more Indian blood we would be
able to organize under a constitution and become recognized. In
1936, the Department sent anthropologists down to our community
to check blood quantum. Only 209 of our people agreed to submit
themselves to this examination. He checked the blood, he
measured their teeth, he looked at the appearance of their
cheek bones, then he performed the famous pencil test to test
the texture of their hair.
Out of the 209, he certified 22 individuals that now whose
descendants, hundreds of their descendants, are now enrolled
with the Lumbee Tribe, and two of their descendants have
previously served on our tribal council. But in the end, the
Department refused to allow these individuals to organize, once
again denying the recognition of the tribe.
In 1956, Congress finally did pass and act for the Lumbees.
But it gave with one hand and took with the other hand. The
bill started out as a recognition legislation. But when the
Department of the Interior asked Congress to amend the bill to
include termination language, the Congress did so, putting the
tribe half in and half out of the Federal relationship.
Because of the 1956 Lumbee Act, only Congress can now
extend full Federal recognition to the tribe. S. 660 would do
The tribe has waited long enough to be treated just like
all other Indian tribes. It has been more than 120 years now.
The tribe has been processed and studied enough. I have here a
stack of studies on Lumbee history, all done by Congress and
the Department. I ask the committee to make these a part of the
record here today. It is time for all this to end and for
Congress to complete what they started in 1956 by enacting S.
When my Government needed me in Vietnam, I was ready to go.
And I was acknowledged as an American Indian. My enlistment and
discharge papers identified me as such. I did faithful service
and was awarded the Purple Heart and the Bronze Star. But on my
return to my country, to my country, my Government refused to
acknowledge my people for what they are. This pains me and
every other Lumbee veteran that fought for our country. Now we
find ourselves having to fight against our country.
Finally, let me put to rest some of the myths about our
people, myths that some use to oppose our recognition effort.
Let's start with the State of North Carolina recognized us in
1885, but under different names. We did not choose those names.
Let me repeat that. We did not choose those names. The State
legislature of North Carolina chose those names. The only name
we ever chose was Lumbee, derived from the name of the river
where we always lived, which is not uncommon among Indian
people. But whatever the name, we have always been there and
are the same people today.
Second, some say Congress should not recognize a tribe,
only the Department should. But this denies reality. The
majority of tribes recognized today, including the Eastern Band
of Cherokee, were recognized by Congress, not the Department of
the Interior. Why shouldn't Congress recognize the Lumbee?
Now, some worry about the cost of recognizing the Lumbee
Tribe, the same reason that the Department of the Interior has
always used to oppose us. That is really not a fair recognition
for opposing recognition of the tribe. And even if it was fair,
the costs are usually inflated. We have used the number of
members who residing in the service area, about 34,000, not the
entire membership of 53,000, to determine the cost of service.
This is accurate, since services are usually available only to
those in the service area. And the Lumbee Tribe has always
indicated willingness to work with the Congress, as only the
Congress can do, to deliver those services in a responsible
And finally, the most insulting basis for some who oppose
our bill is to say we are not even Indian. They don't know us.
They haven't been in our communities. And yet they dispute
every Congressional and Federal record on our people.
We will match the strength of our history and community
against any other Indian tribe. As Dr. Campisi will testify, we
are in fact an Indian tribe. Gentlemen, the truth is that we
are an Indian tribe. The Tribe knows this truth, and we believe
Congress' records on us demonstrate this truth.
Now on behalf of the Lumbee people, I urge this committee
to report our bill out favorably. Thank you.
[Prepared statement of Mr. Goins appears in appendix.]
The Chairman. Thank you very much.
Chief Hicks, welcome.
STATEMENT OF MICHELL HICKS, PRINCIPAL CHIEF, EASTERN BAND OF
Mr. Hicks. [Greeting in native tongue.] Hello and good
morning, Chairman McCain, Vice Chairman Dorgan, members of the
Committee on Indian Affairs, and with deepest respect to our
Senator Dole and Senator Burr from our home State of North
Thank you for allowing me to testify today on behalf of the
Eastern Band of the Cherokee. The Eastern Band is a federally-
recognized tribe based on the Qualla Boundary in Cherokee, NC.
We have 13,500 members, and we are the largest federally
recognized tribe east of the Mississippi River. We share a
common language and deeply held cultural identity with two
other Federally recognized tribes, the Cherokee Nation and the
Keetowah Band of Cherokee based in Oklahoma.
The Cherokee tribes have a long history of dealings with
the United States. Of course, some of that history, Mr.
Chairman, with all due respect, was less than honorable. In the
1830's, thousands of Cherokees, both young and old, died when
the U.S. Army rounded up tribes in the east and forced them to
the west. We call that travesty The Trail Where They Cried. The
Eastern Band's ancestors were the Cherokees who resisted that
trail of tears and some who found their way back to the Great
For centuries, the Cherokee people have fiercely protected
our identity. We have a living, breathing culture with unique
spoken and written language. Many have tried to take our
language. Many have tried to take our culture. But none have
succeeded. Our long-defended identity is threatened by several
groups throughout the southeast, the east and the north, who
claim or have at some point claimed to be Cherokee, as we have
heard today, and whose legitimacy as such is questionable at
We believe that the Lumbee are one of many groups who fall
into this category today, again as we have heard. Since 1913,
over 90 years ago, the Eastern Band has been concerned about
this issue of recognition. Long before gaming, in 1913, long
before they took the name Lumbee, this group sought recognition
from the State of North Carolina as the Cherokee Indians of
Robeson County. Over our opposition, that recognition was
granted, and for more than 40 years they were State recognized
as a Cherokee tribe.
In 1924, the Lumbee sought Federal recognition from the
United States Congress as ``The Cherokee Indians of Robeson and
Adjoining Counties.'' And in 1932, they sought once again to be
recognized by Congress as a Cherokee tribe. Congress rejected
both of those attempts. Today, all three of the federally
recognized Cherokee tribes who make up the greater Cherokee
Nation strongly oppose this legislation. Furthermore, the
United South and Eastern Tribes and other tribes from across
the country oppose today's legislation.
Mr. Chairman, let me give two specific reasons why we
oppose this bill. Then I would like to offer a fair solution
for the Lumbee. First, the integrity of our long government-to-
government relationship with the United States is undermined
when politics and emotion, rather than the facts about tribal
identity, drive the Federal recognition decisions.
And second, Mr. Chairman, the Office of Federal
acknowledgement at the Interior Department, not the Congress,
has the experts to make determinations based on the facts about
tribal identity and tribal recognition. And Mr. Chairman, there
are several facts that I would like the committee to consider
First, the fact is that the Lumbee group has pursued
legislation like this at least 13 times over the last 100
years. And Congress has rejected every attempt. But here we are
again. The fact is they have sought recognition as four
different tribes, self-identifying themselves as the Croatan,
the Siouan, the Cheraw and again we have heard today, the
Cherokee people, the Principal People. The fact is that experts
say those claims don't make sense, because those tribes
represent three completely different linguistic groups. The
fact is, Mr. Chairman, those experts say the claimed ties to
the historic Cheraw Tribe are tenuous at best.
Mr. Chairman, there is an established administrative
process to review these issues and make a fact-based decision.
For these reasons, we strongly oppose the passage of S. 660,
and we urge you to consider another approach, one that will
give the Lumbee a fair and equitable and timely chance to meet
the established criteria at the Office of Federal
Acknowledgment. If they can meet those standards, which are
reasonable, but they are complete, then they will be recognized
as a tribe and will have earned all the benefits of Federal
recognition, as the other 561 tribes have.
Mr. Chairman, please remember that the Lumbee submitted a
petition for acknowledgment to the Interior Department on
January 7, 1980. On November 20, 1989, the Interior Solicitor
determined that they could not complete the process because of
the 1956 Lumbee Act. But Mr. Chairman, that was over 17 years
ago. If the Lumbee had agreed to legislation giving them a fair
shot at the administrative process, then I am sure that they
would have an answer today.
The question we ask is whether the Lumbee want to avoid the
administrative process because they believe it is unfair, or
because they know it will truly examine the factual issues
about Lumbee tribal identity. The Eastern Band of Cherokee
Indians and its sister tribes of the Cherokee Nation urge you
to protect the integrity of all Indian nations and oppose this
Mr. Chairman and committee, I want to thank you for the
opportunity to testify today. It is a privilege to be here. May
God bless each of you and your families. [Remarks in native
[Prepared statement of Mr. Hicks appears in appendix.]
The Chairman. Thank you.
STATEMENT OF JACK CAMPISI, ANTHROPOLOGIST CONSULTANT, LUMBEE
TRIBE OF NORTH CAROLINA
Mr. Campisi. Good morning, Mr. Chairman and members of the
committee. I have worked with the Lumbee Tribe for more than 20
years, conducting field research and analyzing historical
records. It is my professional opinion that the Lumbee Tribe
exists as an Indian tribe, and has done so from first sustained
I based my conclusion on three main factors that I will
summarize from my more detailed written statement. First, the
historical record is clear that the Lumbees descend from the
historic Cheraw Tribe. John Herbert, the commissioner of Indian
Trade, drew a map in 1725 that placed the Cheraw Tribe in the
same location as the modern day Lumbee Tribe. As you can see on
this map, land records dating back to the 1730's show the sale
of Cheraw tribal land as marked where Cheraw old field is
located. A newspaper account from 1771 identifies a Cheraw-
settlement located on Drowning Creek. In 1809, the State of
North Carolina changed the name of Drowning Creek to Lumber
Finally, a 1773-document lists members of the Cheraw
community showing the same uncommon surnames typical of the
Lumbee Tribe today, including Locklear, Grooms, Chavis, and
Dees. In the first Federal census of 1790, these same family
names appear in the same place on Drowning Creek. Today's
Lumbee Indians trace descent directly from these families. In
fact, the oldest continuously documented Lumbee community, now
known as Prospect, is located on the Cheraw tribal lands.
Every expert who has examined Lumbee history has come to
the same conclusion, that the Lumbees descend from the Cheraw
and related tribes. Dr. John Swanton, of the Bureau of American
Ethnology, did so in 1934. Dr. James Merrill, Professor of
History at Vassar College and an expert on southeastern
Indians, did so in 1989, as did Dr. William C. Sturdivant, the
editor of the Smithsonian Handbook on North American Indians
and the chief ethnologist at the Smithsonian Institution, all
of this regardless of changes in names imposed by the State.
Second, in my experience, I have never seen a stronger
Indian community than exists among the Lumbee. To demonstrate
this, I did a 1 percent random sample of Lumbee tribal members
in 2002. The roll at that time consisted of approximately
53,000 members. This sample revealed that 64.6 percent of the
members live in the geographical core area defined as within a
15 mile radius of Pembroke, NC. The evidence clearly shows that
the majority of the Lumbee Indians live in communities that are
exclusively or nearly exclusively Lumbee.
I used the same random sample to determine an in-marriage
rate of Lumbees. The random sample showed that 70 percent of
Lumbee marriages are between tribal members. The historical
record shows comparable high levels of geographic concentration
and in-marriage. From these data, it is fair to conclude that
the Lumbee Tribe demonstrates a remarkable rate of social
cohesion, higher than many federally recognized tribes.
Third, the tribe has a long history of tribal governance
and intense political activity. Since 1885, the tribe has
maintained an active political relationship with the State of
North Carolina. For nearly 100 years, the tribe operated its
own school system, established by the State legislature. Its
leaders have persistently sought to secure Federal recognition
since 1888 and they has over its long history vigorously
defended the tribe.
Let me give a couple of examples. In 1888, 54 tribal
members signed a petition to Congress seeking Federal
assistance in the funding of the tribe's school system.
Virtually every Lumbee present today behind me descends from
one or more of those tribal leaders. On another occasion, and
also in defense of their schools, Lumbee tribal leaders lobbied
the State of North Carolina to set aside a 1913-attorney
general's opinion that held that Robeson County Board of
Education could overrule the tribal leaders' decisions about
enrollment in the Lumbee schools. In 1921, the State
legislature confirmed the tribe's authority to decide
enrollment in its schools.
One last example of tribal leadership occurred in 1958 when
the Ku Klux Klan announced a rally in the heart of Lumbee
community. Lumbee leaders led a protest of the rally and
dispersed the Klan.
Lumbee churches have been and remain at the core of Lumbee
leadership. There are more than 130 all-Indian churches among
the Lumbees in Robeson County, the overwhelming majority with
Lumbee ministers. Historically, leadership of the tribe arose
out of the Lumbee churches. Most recently, the church leaders
directed the effort to adopt a formal tribal constitution.
Following a church-organized constitutional assembly, the tribe
adopted its constitution in a special referendum in 2001.
The churches continue to be the wellspring of political
leadership and the central feature in continuing tribal
identity. The extensive record of the tribe's history in the
18th, 19th, and 20th centuries establish that the Lumbee
Indians constitute an Indian tribe, even as that term is
defined in the Department of the Interior's regulations. The
tribe fails only on the last criterion in those regulations.
That is, Congress has prohibited the Department from acting on
the tribe's petition in the 1956 Lumbee Act. Thus, Congress can
enact on S. 660 with full confidence that the Lumbees are in
fact an Indian tribe.
Thank you, Mr. Chairman.
[Prepared statement of Mr. Campisi appears in appendix.]
The Chairman. Thank you very much, Doctor.
Chairman Goins, would you like to respond to Chairman
Mr. Goins. The first thing I would like to say is that the
implication was, were we afraid of the BIA process. When I
finish, I am going to ask Arlinda to sum it up.
But we don't trust the BIA. In 1934, they said themselves
that we were descendants of the Cheraw Tribe. Then in 1956, if
it wasn't for the Department of the Interior, we wouldn't be
here today. It was the very insistence of putting the
termination language in the 1956 act that we are here.
So why would we trust that they have changed their mind
The Chairman. Wasn't it the Congress that passed the 1956
act that called for termination?
Mr. Goins. Yes; but it was----
The Chairman. Then why do you trust the Congress?
Mr. Goins. But it is our understanding that Congress was
influenced by the Department of the Interior to add the
termination language, not the Congress itself.
Ms. Locklear. If I may, Mr. Chairman, the chairman is
correct that the legislative history of the 1956 Lumbee Act
shows that as introduced, it did not contain termination
language. It was intended as a straightforward recognition
bill. It was amended in the Senate at the request,
recommendation of the Department of the Interior to include the
termination language expressly for the purpose of precluding
the delivery of services to the tribe.
And if I may add very briefly, Mr. Chairman, that is
consistent with the entire history of the Lumbee's effort.
Several witnesses have spoken today about the number of bills
that have been introduced during the period 1899 to 1956 for
the purpose of achieving recognition, the suggestion being made
that those bills failed for the reason that the tribe simply
didn't qualify as a tribe. That is not in fact the case. The
legislative history demonstrates that those bills failed
principally because of the persistent opposition of the
Department of the Interior.
The Chairman. Well, in all due respect, the Congress does
not carryout the dictates of any department of Government. We
are appointed as a separate body to deliberate and decide with
the input of various agencies of Government. I have been here
for more than 20 years and I have never followed the dictates
of any branch of Government. We have received their advice,
their counsel and their recommendations. But they do not
dictate to us.
Chairman Hicks, how did the Eastern Band of Cherokee become
Mr. Hicks. Mr. Chairman, I would like to respond by saying
first of all, there has never been a question about the
Cherokee people. It is true that the Cherokee were recognized
in 1868 by a Federal process. But you may recall, as in my
testimony, that the Cherokee have had long dealings with this
Federal Government. And again, I want to highlight that there
has never been a question about the Cherokee people.
The Chairman. Well, my question was, how did they become
Mr. Hicks. Through the Federal process. And I also want to
highlight, Mr. Chairman
The Chairman. Not through a legislative act?
Mr. Hicks. Through a legislative act. But I also want to
highlight that at that point in time, there was not an
The Chairman. Chairman Goins, have you thought about the
issue of gaming operations in the event of recognition?
Mr. Goins. Senator McCain, we started this process in 1888.
That has never been an issue. Gaming came about almost 100
years later. This is not about gaming. This is about jobs,
health care and just doing what is right for the Lumbee people.
This is about honor and dignity. No, gaming is not an issue
The Chairman. I would appreciate an answer to the question.
Has it been a consideration as you have moved forward with this
Mr. Goins. No, sir.
The Chairman. Thank you very much.
As I understand your testimony, Chairman Goins, you have a
membership roll. How many do you have on that roll at this
Mr. Goins. We can give you----
The Chairman. Roughly.
Mr. Goins. Roughly around 53,000, total membership.
The Chairman. Thank you.
I understand that if legislation were passed giving you an
opportunity to go through the process, your review on that, at
least according to your opening statement, would be that it is
too long and too difficult a process, is that correct?
Mr. Goins. Yes, sir.
The Chairman. Thank you. Senator Burr.
Senator Burr. Thank you, Mr. Chairman. I am not sure that
anybody up here has ever accused the chairman of following any
dictate from any of the agencies. His record is intact on that.
Chief Hicks, welcome.
Mr. Hicks. Thank you, Senator.
Senator Burr. I find it unfortunate that we have two North
Carolina entities that don't necessarily find agreement. And
let me say this for Chairman McCain's point, I personally
believe we are long past the point of a normal process. Because
to suggest that we took any entity and put them through a
criteria that was established well after the Congress spoke,
that even if they were prioritized to the top of the line would
take 15 years I think is just an additional injustice that
would be at the hands of the Congress. So my hope is that
members will look at this in the context of the precedent that
we as a body have done in the past. And as you said, the
Cherokees were the result of recognition, legislative
recognition of the Congress of the United States.
Since 1960, we have had 15 recognitions by the
Administration, administrative process. We have had 16
recognitions by Congressional action. Chief Hicks, in 1972,
when the Tonto Apache Tribe of Arizona was Congressionally
recognized, did the Cherokees object to that, to your
Mr. Hicks. To my knowledge, Senator Burr, I don't believe
the Cherokees objected to that. However, I would like to say
that each one of these individual situations that you may bring
to light today is based on its own merits.
Senator Burr. And clearly, the points that you raised
relative, two of them, to the Lumbees, could be applied to any
of the 16 that I just referred to. In 1978, the Modoc Tribe of
Oklahoma, you didn't object to. In 1982, the Cow Creek Band of
the Umpqua Indians of Oregon, you didn't disagree with
As a matter of fact, in 1987, what was the original Tiwa
Tribe, recognized and terminated in the same legislation as the
Lumbees, were Congressionally recognized but the Cherokees did
not object to that recognition. In 1988, the Lac Vieux Desert
Band of Lake Superior Chippewa Indians of Michigan,
Congressionally recognized, no objection. The Coquille Tribe of
Oregon in 1989, the Pokagon Band of the Potowatomi Indians of
Michigan in 1994, Little River Band of Ottawa Indians of
Michigan, Little Traverse City Band of Indians, all in 1994. No
objections. There are objections as it relates to Congressional
recognition of the Lumbees.
Now, you raised three points of objection. The third point
I find somewhat unique, because you said the cost was just too
significant. What was the cost of Cherokee recognition? Do you
have any idea?
Mr. Hicks. The cost of Cherokee recognition, when thousands
of the people, thousands of people died on the Trail of Tears,
with all due respect, Senator. That is the cost of the Cherokee
Senator Burr. But you put the objection to the Lumbees, the
cost to the American taxpayer. We didn't, I don't think, as a
Congress, apply a cost to Cherokee recognition, a cost to the
American taxpayer. We looked at what we thought was an
injustice and we tried to correct the injustice. I think that
is what we are here today to do. I think we look at a mistake
in 1956 and we look back and we say, had in 1960 Congress been
smart enough to recognize the mistake they had made in
recognition and termination all in the same piece of
legislation, they would be done today. Had they recognized in
I am not here to try to second guess why brilliant people
weren't here then. And I am also here to recognize the fact
that brilliant people aren't here today. But as Chairman McCain
has proven over and over again, sometimes you are at a certain
place in time and you are asked to deal with things from an
equality standpoint. I think that is where we are, as it
relates to this.
I think I would ask you, do you think the Lumbees, since
1956, have been treated fairly and equitably?
Mr. Hicks. Mr. Chairman, can I respond?
Senator Burr. The question was to you.
Mr. Hicks. I want to just point out in regards to your
argument with the 1956 act, I think it was very clear at that
point in time, with the other transactions that took place, and
as your example with the Tiwa, it was very clear and Congress
was very clear in regard to recognition and termination at that
point. In regard to the 1956 act as it applies to the Lumbee,
again, that act, as I interpret it and many others have, is
that it only commemorated a name change and did not recognize,
nor did it terminate an Indian tribe.
The second point, Senator, is the CBO has calculated the
effect of potentially the third largest Indian tribe in the
United States to be close to, over a 4-year period, $700
million to the budget of this U.S. Government.
Senator Burr. But you, Chief Hicks, have suggested that
what Congress should do is to follow the BIA process, seven
steps of criteria, of which cost is not one of them. But you
suggest that we should incorporate cost into whether we get
involved or not.
My only point is to point out that Congress will have to
make a decision of the chairman, the vice chairman, both of
whom, I trust their experience in this extremely much. If in
fact the Congress of the United States chooses the BIA process,
they may be recognized. I will still, as a member, look back
and say that we did an injustice to a group who sought
recognition and we may go then, not just since 1956 to the year
2006, but 15, 20, or 25 years from now, before they might even
find out yes or no. I think it is an injustice today, I think
it would be an injustice to go that long.
Let me, if I could, Mr. Chairman, just turn to Ms. Locklear
for a second. I would like you to fill in any blanks that may
have been left open by Mr. Fleming as it related to the Indian
Reorganization Act in the 1930's, the Indian Affairs
recommendation that Lumbee set land aside. Can you shed any
light on that whole transition?
Ms. Locklear. Yes, Senator; there is an extensive
administrative record in that regard. Shortly after the passage
of the Indian Reorganization Act, Mr. Fleming is correct, the
Department did make an effort to outreach to groups all over
the United States, including the Lumbee Tribe. There was
correspondence between Commissioner Collier at the time where
Commissioner Collier encouraged the tribal leadership, to the
Lumbee tribal leadership, to contact the Solicitor's office at
the Department of the Interior with regard to the possibility
of obtaining recognition under the Indian Reorganization Act.
They did so and received a letter from Felix Cohen who was
the Solicitor of the Department of the Interior at the time,
and of course, the preeminent author of the leading handbook on
Federal Indian law. And Mr. Cohen wrote directly to the Lumbee
leadership advising that the Indian Reorganization Act was
available to the tribe, that if they were able to obtain
certification of members of the tribe, as one-half or more
Indian blood, those individuals could request the Department to
take land into trust, adopt a constitution and thereby become
The tribe immediately did so and the Department dispatched
Dr. Seltzer to the community in 1936 to engage in the process
that Chairman Goins described. That did result in the
certification of some individuals as half blood in the
community. Only some, because very few Lumbees decided to
subject themselves to that intrusive examination.
At the end of the day, though, that failed as well, because
the Department declined to take land into trust for the tribe,
so that the tribe could not adopt a constitution. So that is
yet again another administrative process that the tribe
attempted to take advantage of, but failed because the
Department opposed recognition of the tribe.
Senator Burr. And can you, Ms. Locklear, shed any light on
the 1912 and 1915 visits by the individuals?
Ms. Locklear. Yes, Senator Burr; those came in response to
bills that had been introduced by Congress to recognize the
tribe. And let me add as a footnote there that if you look at
the history of those bills, and much has been made about the
various names that the tribe sought recognition under, or had
been denominated by. Those were not names that were selected by
the tribe. Those were names that were imposed on the tribe by
the State of North Carolina. And the history of the recognition
effort by the Lumbees shows that as soon as the State of North
Carolina passed a State law recognizing the tribe under a
certain name, then the delegation, the Congressional delegation
introduced virtually the identical bill that the State had
passed to obtain Federal recognition on the same terms.
The tribe was never asked itself what its name would be
until 1953, when it finally adopted the name Lumbee. Those
studies followed two of those bills that had been introduced by
the Congressional delegation to obtain recognition from the
Congress shortly after recent legislation by the State. And at
the Congress' request, the Department of the Interior
dispatched special Indian agents to Robeson County to conduct
an investigation of the tribe. Both of those investigations,
which are included in the material that Chairman Goins asked to
be made a part of the record, clearly demonstrate the Indian
ancestry of the community, the strong ties of the community,
the political authority and leadership within the community. In
fact, one of those reports says that in the opinion of that
investigator, the majority of the Indians in Robeson County are
probably three-quarters or more Indian blood.
Some of those reports actually recommended the Department
support recognition of the tribe. But again, largely because of
reasons of cost, the Department declined to do so. They opposed
those bills and the bills were defeated.
Senator Burr. Ms. Locklear, thank you for the
clarification. It is incredibly apparent that Congress has had
more involvement in this process of Lumbee recognition than
just the 1956 act. It dates back quite a ways.
Mr. Chairman, let me point out that we are blessed in North
Carolina both with the Lumbees and the Eastern Band of the
Cherokees, more importantly with the leadership of Chief Hicks
and of Chief Goins. These two organizations are represented in
an incredibly effective way, and I would like to thank both of
them for being here as well as Mr. Campisi.
Mr. Chairman, I yield.
The Chairman. Thank you.
Chief Hicks, how many people died in the trail of tears?
Mr. Hicks. Estimates are about 5,000 people, sir, about
one-third of the Cherokee Nation at that point in time.
The Chairman. Senator Dorgan.
Senator Dorgan. Mr. Chairman, thank you.
First of all, thanks to those of you who have come today to
appear as witnesses. I know that many have driven some ways to
be a part of this. As I indicated when I gave an opening
statement, when I tried to get a time line of what all this
means, it goes back centuries. So might I ask how many are here
from the Lumbee Nation, Lumbee Tribe?
[Show of hands.]
Senator Dorgan. Let me say that obviously there is some
controversy here. These are not easy issues, but I think all of
our witnesses have presented some very significant information
to us with which Senator McCain, myself and other members of
this committee can begin to evaluate what the proper response
is. And I thank Senator Burr and our colleagues who have
appeared, the Congressman and Senator Dole.
So I think rather than ask a series of questions, I am
scheduled to speak to an Indian education summit that is
occurring now, so rather than ask a series of questions, I just
want to say a special thank you for the presentations you have
made. I think they are heart-felt and they address a very
important issue and one that we will consider seriously. Thank
you very much.
The Chairman. I thank the witnesses. This hearing is
[Whereupon, at 11:15 a.m., the committee was adjourned.]
A P P E N D I X
Additional Material Submitted for the Record
Prepared Statement of Jack Campisi, anthropologist consultant, Lumbee
Tribe, North Carolina
I hold a doctorate in anthropology, have dedicated my career to
research in tribal communities, and have taught these subjects as an
adjunct professor at Wellesley College. Between 1982 and 1988, I
conducted a number of studies for the Lumbee Tribe of North Carolina.
Each of these included fieldwork in the community for periods of time
varying from 1 week to 3 weeks. In all, I spent more than 20 weeks in
Robeson County carrying out a variety of research projects. Besides
being responsible for synthesizing the thousands of pages of
documentation collected during the 10 years it took to carryout the
archival research, and for designing and carrying out the community
research, I had the honor of writing the petition that was submitted on
December 17, 1987, to the Branch of Acknowledgment and Research [now
the Office of Federal Acknowledgment] under the Federal regulations
that govern acknowledgment of eligible Indian tribes, 25 C.F.R. Part
183. Specifically, I drafted the Historical Narrative section, and
researched and wrote the sections dealing with community and political
continuity. Subsequent to the completion of the petition, I continued
research with the Lumbee Tribe, most recently in 2002. The material
that follows is based on my 20 years' research on the tribe's history
Over the course of the past 25 years, I have worked on 28 tribal
petitions for Federal acknowledgment. None has exceeded the Lumbee
petition in documentation and no group has exhibited more evidence of
community cohesion and political continuity than the Lumbee Tribe. It
is my professional opinion that the Lumbee Tribe exists as an Indian
tribe and has done so over history. I will outline below the main
arguments and evidence in support of this conclusion.
At the time of sustained white contact, there existed a Cheraw-
Indian community precisely where the Lumbees reside today. A 1725 map
made by John Herbert showed the Cheraw Tribe between the Pee Dee River
and Drowning Creek. In 1737, John Thompson purchased land in the same
general area from the Cheraw, and in 1754, Governor Arthur Dobbs of
North Carolina identified on ``Drowning Creek on the head of Little
Pedee 50 families a mix Crew [or Breed] a lawless people filled the
lands without patent or paying quit rents shot a surveyor for coming to
view vacant lands being enclosed by great swamps.'' A document written
in 1771 refers to ``the Charraw Settlement'' on Drowning Creek, and
another document dated 1773 contains a list of names that connect this
community to the Cheraw in 1737. Some of the same surnames as today's
Lumbee population appeared on the list: Ivey, Sweat, Groom, Locklear,
Chavis, Dees, and Grant (see Dr. James H. Merrill letter to Congressman
Charlie Rose, October 18, 1989 for further discussion), attached to
this statement. The 1790 Federal census identifies families with these
same surnames around Drowning Creek and modern day enrolled Lumbees can
prove genealogical descent from those Indians. Thus, the community
mentioned in the references cited in above and the community of Indians
described in 19th century documents were the same, and were the
antecedents of today's Lumbee Tribe.
The Federal census records are by far the best source of evidence
concerning the early Lumbee community. It is clear from the names of
the heads of households that the area of Robeson County around Drowning
Creek, renamed the Lumber River in 1809 by the State legislature, was
occupied almost exclusively by tribal members. Based on the 1850 census
(the first census to provide the names of the individual's resident in
each household), it is possible to describe the residency patterns of
the Lumbee community. Thus, there can be no doubt that there was an
Indian community present along Drowning Creek from the mid-1700's,
separate from other communities in the area. It is also certain that
this community had a well-established leadership structure and that it
managed its affairs with relative autonomy.
The oldest Lumbee community that can be continuously documented was
called Long Swamp, now called Prospect and located within the core area
in Pembroke and Smith townships the heart of the modern day Lumbee
community. It is also located right in the heart of the so-called old
field of the Cheraw, documented in land records between 1737 and 1739.
The earliest census records show the presence in this community of an
extended Locklear family continuously since 1790. Members of this
extended family appeared among the tribal leaders, both by descent and
marriage, who petitioned Congress for Federal recognition in 1888.
Members of this extended family were also among those who were tested
by physical anthropologist Carl Seltzer in 1936 for blood quantum. This
includes Duncan Locklear and Henry Locklear, whose pictures are
attached. The tribe's attorney, Arlinda, Locklear, is also descended
from this extended family.
Federal census and State court records document the continued
existence of a separate Indian community meeting in Robeson County
during the ante-bellem period. Although generally classified as free
non-whites during the post-Revolutionary War years, the Lumbees appear
to have been treated more generously than free blacks, being allowed to
vote without challenge and to own property. However, in the 1830's two
seemingly unrelated actions--one by the national government and the
other by the State of North Carolina--converged, with disastrous impact
on the Indians of the State. In 1830, Congress passed legislation
providing for the removal of all Indian tribes east of the Mississippi
River to land set aside in the ``Indian Territory'' in Oklahoma. Tribes
such as the Cherokee and Creek were forced to leave. In the climate of
removal, it did not benefit a tribe to overtly manifest its identity.
Lumbees, like other Indians in the State, held their land in severally,
but often without patents. Thus, they were in a precarious position.
Added to the problem of tribal survival was the steadily worsening
relationship between whites and ``people of color'' in North Carolina
following Nat Turner's uprising in 1831. In 1835, the State passed a
constitutional amendment denying tribal members rights they had
previously enjoyed. Many refused to abide by the changes and some were
charged with violations. One case, in particular, went far toward
recognizing the Lumbees as Indians. In 1857, a William Chavers was
arrested and charged as ``a free person of color'' with carrying a
shotgun, a violation of State law. He was convicted, but promptly
appealed, claiming that the law only restricted free Negroes, not
persons of color. The appeals court reversed the lower court, finding
that ``Free persons of color may be, then, for all we can see, persons
colored by Indian blood, or persons descended from Negro ancestors
beyond the fourth degree.'' The following year, in 1859, in another
case involving a Lumbee, the appeals court held that forcing an
individual to display himself before a jury was tantamount to
compelling him to furnish evidence against himself. These cases
generally resulted in the Lumbees establishing a special status under
the law as Indians, one outside the limitations placed on others who
were classified as ``free persons of color.'' From 1860 on, there is
abundant evidence of tribal activity. During the Civil War the Lumbee
Indians were prohibited from serving in the Confederate Army and were,
instead, conscripted into labor gangs and assigned to build the
fortifications at the mouth of the Cape Fear River to protect the city
of Wilmington. The conditions were harsh and the treatment brutal. Many
Lumbee men escaped and returned home where they hid out in the swamps
of Robeson County. Besides Lumbees, the swamps provided a refuge for
Union soldiers who had escaped from nearby Confederate camps. Because
of their treatment by the Confederacy, and more particularly the Home
Guard, the Lumbees gave assistance and protection to the Union
soldiers. As the number of Lumbees and Union soldiers ``laying out''
increased, so did the burden of feeding them. With so many men in
hiding or conscripted, there were few to do the farm work. Gradually,
the attitude of the Lumbees changed from a passive one to one marked by
belligerence. In short order, a band emerged, led by the sons of Allen
Matters came to a head in 1864 when members of the Allen Lowrie
family and the local authorities came into armed conflict and a number
of individuals on both sides were killed. In March 1865, the Home Guard
captured Allen Lowrie and his son, William, and after holding them for
a short time, executed them in a field near the father's house. This
was followed by a virtual reign of terror during which the Home Guard
tortured members of the Lowrie family and their kinsmen in order to
learn the whereabouts of the band. With the death of his father and
brother, Henry Berry Lowrie, who was barely 20 years old, took over the
leadership of the band. For the next decade, led by Henry Berry Lowrie,
and with the Indian community's support and protection, the band fought
against local authorities who sought by a variety of means to oppress
the Indian population in Robeson County. The Lowrie Band led a struggle
that ended only after the disappearance of its leader in 1872, and the
capture and death of the last of the band members in 1874. Henry Berry
Lowrie remains a folk hero to the Lumbee Indians and his story is told
every year in an outdoor drama called ``Strike at the Wind.'' By the
1870's, the Lumbees were openly acknowledged to be Indians. While the
Lowrie Band was carrying out its defense, others in the tribe were
taking equally effective actions to assert their independence. Lumbees
were denied access to the white schools in the county and they refused
to attend the schools for blacks. This impasse was broken in 1885.
In 1885, the State of North Carolina formally recognized the tribe
as the Croatan Indians as a means of addressing the school issues. The
State statute established a school system for the children of tribal
members only. Tribal leaders exercised complete control over who could
attend the schools. Each Lumbee settlement had a school committee that
determined eligibility. In order to be eligible, an individual had to
prove Lumbee ancestry back through the fourth generation, that is, back
to the 1770's. Because of the rigorous manner in which these rules were
enforced in the 19th century, school enrollment records provide an
accurate basis for determining present day membership.
In 1887, tribal members petitioned the State legislature again,
requesting the establishment of a normal school to train Indian
teachers for the tribe's schools. Permission was granted, tribal
members raised the funds, and along with some State assistance, the
normal school began training teachers for the expanding Lumbee school
system. That normal school has been in operation continually since,
evolving into Pembroke State University and, recently, the University
of North Carolina at Pembroke.
The tribe had difficulty, though, in supporting the Indian normal
school financially. In 1888, the tribe petitioned Congress for
assistance for its normal school. The request was sent by the House
Committee on Indian Affairs to the Commissioner of Indian Affairs, but
no action was taken for nearly 2 years. Finally, in 1890, Commissioner
Morgan responded to the tribe, telling them that, ``So long as the
immediate wards of the Government are so insufficiently provided for, I
do not see how I can consistently render any assistance to the Croatans
or any other civilized tribes.'' There is no doubt that the
Government's rejection of assistance was based solely on economic
considerations, the commissioner implying that if sufficient funds had
been available, services would have been provided to tribes he referred
to as ``civilized.''
The Lumbees made frequent attempts over the course of the next 50
years to receive assistance from the United States. In 1899,
Congressman John D. Bellamy introduced legislation to provide
educational assistance for the Croatan Indians (as the Lumbees were
then called). Again, in 1910 and 1911, legislation was introduced in
Congress to change the tribe's name and to establish ``. . . a school
for the Indians of Robeson County, NC.'' To secure information on the
tribe, the Indian office sent Charles F. Pierce, supervisor of Indian
schools, to investigate. He reported favorably on the tribe, finding
``. . . a large majority as being at least three-fourths Indian.''' He
described them as being law abiding and industrious and ``crazy on the
subject of education.'' Pierce had no doubt that the Lumbees were
Indians, or that they were a tribe. Nor did he doubt that Federal
educational assistance would be beneficial. He opposed the legislation
because, in his words, ``[a]t the present time it is the avowed policy
of the Government to require States having an Indian population to
assume the burden and responsibility for their education, so far as is
possible.'' After lengthy deliberations, the bill passed the Senate,
but not the House, because the chairman of the House committee felt
that the Lumbees were eligible to attend the various Indian boarding
The tribe continued its efforts to secure Federal educational
assistance, and in 1914, sent a delegation to Congress. Another
investigation was carried out by the Indian Office at the direction of
the Senate. Among other things, Special Indian Agent, O.M. McPherson
found that the tribe had developed an extensive system of schools and a
complex political organization to represent its interests. He noted
that the Lumbees were eligible to attend Federal Indian schools, but
doubted that these schools would meet their needs. His recommendation
was that if Congress saw fit to establish a school, it should be one
emphasizing agricultural and mechanical skills. Again, Congress took no
action. Parenthetically, it should be noted that during this period
tribal activity was generally at a low level across the United States.
Not so for the Lumbees, who actively involved their congressmen in
their efforts to achieve Federal recognition.
During the 1930's, the tribe renewed its efforts to achieve Federal
recognition. In 1932, the BIA asked the eminent anthropologist at the
Bureau of American Ethnology John Reed Swanton for his professional
opinion on the Lumbees. Swanton was emphatic concerning their Indian
ancestry, specifying a Cheraw and other eastern Siouan Tribes as their
ancestry. A later report by Indian Agent Fred Baker , who had
visited the Lumbee community, gave further support that they
constituted a tribe. Baker discussed a resettlement project with the
tribe in which the Government would acquire land for the Lumbees'
support, an alternative to the share-cropping and credit system then
the predominant means of Lumbee livelihood. Baker reported to Congress:
It may be said without exaggeration that the plan of the Government
meets with practically the unanimous support of all of the Indians. I
do not recall having heard a dissenting voice. They seemed to regard
the advent of the U.S. Government into their affairs as the dawn of a
new day; a new hope and a new vision. . . I find that the sense of
racial solidarity is growing stronger and that the members of this
tribe are cooperating more and more with each other with the object in
view of promoting the mutual benefit of all the members. It is clear to
my mind that sooner or later Government action will have to be taken in
the name of justice and humanity to aid them.
However, the Bureau of Indian affairs did not support recognition
of the tribe, despite four studies that all found the Lumbee to be
Indian. The apparent reasons were the size of the tribe and the costs
to the Government.
Following the First World War, the Lumbees renewed their efforts,
both in the State and with Congress, to improve their educational
system. At the State level, they were able to get an appropriation of
$75,000 for capital improvements at the Indian Normal School. The issue
of the tribe's name had become a concern, and tribal leaders sought
legislation in Congress to recognize the name adopted by the state
legislature--The Cherokee Indians of Robeson and Adjoining Counties in
North Carolina. Such a bill was introduced in the Senate in 1924, and
at first received favorable support from the Secretary of the Interior,
although Commissioner of Indian Affairs Charles H. Burke opposed the
legislation. The Secretary later dropped his support and the bill died.
The efforts to obtain congressional recognition were resumed in
1932. Senator Josiah W. Bailey submitted a bill designating the Indians
of Robeson and adjoining counties as ``Cherokee Indians,'' but this
effort also failed. The following year another bill was proposed, this
time designating the tribe as the ``Cheraw Indians,'' at the suggestion
of Dr. Swanton. This name caused a split in the tribe, with those
tribal members led by Joe Brooks favoring it, while others, led by D.F.
Lowry opposing it, fearing it would jeopardize the tribe's control over
its schools. Because of the split in the tribe, the effort failed.
With the passage of the Indian Reorganization Act, Brooks and his
supporters attempted to organize the tribe under a Federal charter.
Because the tribe did not possess a land base, it was advised by
Assistant Solicitor Felix Cohen to organize under the half-blood
provision of the act. Cohen urged that the tribe apply for land and a
charter under the name of the ``Siouan Indian Community of Lumber
River.'' Brooks immediately submitted a proposal that mirrored Cohen's
recommendations. Over the course of the next 2 years, the two projects
of establishing recognition under the IRA and receiving land through
the Bureau of Indian Affairs proceeded, when suddenly, in 1936, the
land acquisition proposal was shifted from the BIA to the Rural
Resettlement Administration, and the land that was to be purchased
solely for Lumbee use, was opened to non-Indians. After a lengthy
struggle, Brooks was able to have a part of the land set aside for
tribal members, and incorporated under the name of the Red Banks Mutual
The tribe was no more successful in achieving recognition under the
IRA. The BIA formed a commission of three to investigate the blood
quantum of the Lumbees. In 1936, Dr. Carl C. Seltzer, an anthropologist
and member of the commission, visited Robeson County on two occasions
and took physical data on 209 Indians applying for recognition as one-
half or more Indian blood. He found that 22 met the criteria. They were
certified by the Secretary of the Interior. What made Seltzer's work so
ludicrous was that in several cases he identified full siblings in
different ways, one meeting the blood quantum requirement and the other
After the second World War, the Lumbees again tried to achieve
Federal recognition of their status as an Indian tribe. The issue of
their name continued to cause them problems so, in 1952, the Lumbee
leadership conducted a referendum on the name; at the tribe's request,
the State funded and provided other assistance for the conduct of the
referendum. Of 2,144 tribal members who voted, all but 35 favored the
use of the name ``Lumbee,'' derived from the Lumber River upon which
they had always dwelled. Armed with this overwhelming support, the
leader of the movement, D.F. Lowry, asked the State legislature to
adopt the change. The legislature approved the name change in 1953. The
Lumbee Tribe then took its case to Congress, which in 1956 passed the
There can be no doubt that for more than 200 years the Lumbees have
been continuously and repeatedly recognized as American Indians. This
was made explicit by the State in the 1880's and by the Federal
Government from at least the beginning of the 20th century on. Federal
and State officials have, on numerous occasions, reviewed the evidence
and at no time have they questioned the fact that the tribe consisted
of people of Indian descent. Federal reluctance to acknowledge the
tribe centered on questions involving the extension of services. It was
unfortunate that each effort by the Lumbees to clarify their Federal
status and to receive services coincided with Federal Indian policy
shifts away from the trust relationship: The General Allotment Act in
1887; the Citizenship Act of 1924, and the termination policy of the
1950's. The exception, the Indian Reorganization Act, which could have
provided a means to recognition, was subverted by bad anthropology and
Since the passage of the Lumbee Act, the tribe has faced a steady
string of problems, beginning with an attempt by the Ku Klux Klan to
intimidate tribal members in 1958 by a rally held within the Lumbee
community. The tribe's reaction to this threat was a spontaneous
gathering that drove the klansmen from the field and broke up their
rally, a confrontation that focused national attention for a time on
the Lumbee community. The tribal members have exerted their influence
in other ways. In the 1960's they organized voter registration drives
that made their influence felt on local politics, electing members of
the tribe to State, county, and local public offices. When the local
school authorities attempted to integrate only the black and Indian
schools in the county, tribal members staged sit-ins and filed lawsuits
to prevent the loss of tribal control over the schools. It must be
understood that the school system was and is a key and integral part of
tribal identity, and any threat to the tribe's control would be
resisted. And resisted it was!
While the tribe was struggling to maintain its schools, it was
actively opposing the so-called ``double voting'' system, which allowed
whites in the towns [which had separate school districts] to vote with
whites in the county, who were in the minority, to maintain white
control over the county school system. The students in the county
school system were predominantly Indian and black. Tribal leaders took
the case to Federal court, and after losing at the district court, won
a reversal at the court of appeals, thus ending double voting.
At about the same time, tribal leaders became involved in an issue
with high symbolic value to the tribe. In 1972, the Board of Trustees
of Pembroke State University decided to demolish the main building on
the campus and replace it with another structure. Very quickly, a group
formed to ``Save Old Main.'' The group waged a statewide and national
campaign to save the building, and just at the point when it seemed
that they would be victorious, the building was burned to the ground.
The tribe overcame this blow and campaigned hard for the reconstruction
of Old Main, which they eventually accomplished. The building was
completed in 1975 and is now the site of the University of North
Carolina at Pembroke's Native American Resource Center.
Since the end of World War II, the tribe has grown in stature and
influence. It was a primary mover in the establishment of North
Carolina Commission of Indian Affairs, an organization that has become
a model for state Indian commissions. The Lumbees have played an
instrumental role in county affairs, where they have represented a
The Lumbee history is one of continual resistance to outside
domination, beginning in the 18th century. In 1754, the ancestors of
the Lumbees were described as a community of 50 families living on
Drowning Creek, ``mixt Crew [or breed] a lawless people.'' In 1773,
they were identified as ``A List of the Mob Railously Assembled
together in Bladen County [later subdivided to create Robeson
County].'' In the 1830's, Lumbees opposed the laws limiting their
freedoms, and in the Civil War and Reconstruction years, under the
leadership of Henry Berry Lowerie, they actively opposed, first the
Confederate government, and later the United States.
The Lumbees are held together by the same mechanisms and values
that have kept them together for the past 100 years or more, mechanisms
and values that are typically Indian. First and foremost is the family,
which serves as the center of Lumbee social activities. There is
continual and widespread visiting among adults, particularly in the
homes of parents and grandparents. Often, children live near their
parents on land that was part of the family homestead. Members of
families speak to and visit each other on an almost daily basis.
The knowledge that the average Lumbee has of his or her kin is
truly astounding. It is very common for individuals to be able to trace
their parents' genealogies back five or more generations. Not only are
individuals able to name their grandparents, great grandparents, great
great grandparents et cetera, but often they can name the siblings of
their ancestors, the spouses of their ancestors' siblings, relate where
they lived in Robeson County, the church they attended, and the names
of their offspring. It is common for an individual to name 200 or 300
individuals as members of the immediate family. Every year there are
family reunions that attract members from all over the country. They
vary in size from small gatherings of a few 100 close kin to reunions
involving 1,000 or more persons.
This kinship pattern is well illustrated by the mapping of all
Lumbee heads of household based upon the 1850 Federal census that I
prepared for the tribe's petition for Federal acknowledgment. I
identified 168 households headed by Lumbees in 1850. These heads of
household are the ancestors of present day Lumbees and include
descendants of the Locklear extended family documented on the old
Cheraw field in 1790. The households were clustered in what is the core
area today of the Lumbee Tribe; in some areas, such as the Prospect
community, the area was almost exclusively Lumbee. The households
showed an extremely high rate of in-marriage, resulting in complex and
multiple kinship and marriage ties among the members--a pattern that
continues today, as discussed below.
The same kinship pattern is reflected in the list of tribal leaders
who appeared on the 1887 petition to the State and the 1888 petition to
the Congress. When these individuals' relationships, both marital and
kin, are mapped, it again reveals a remarkably tight community. There
are multiple ties, as shown by the chart submitted by the tribe with
its petition for Federal acknowledgment. Thus, the high rates of
marriage and geographic concentration of tribal members shown today, as
discussed below, were evident in 1790 and 1850.
Religion also serves to maintain the social boundaries of the
Lumbee Tribe. By social boundaries, I mean that there are membership
rules, special beliefs and values, a unique history, and a system of
political authority and decisionmaking that marks the Lumbees as a
separate community. There are more than 130 Lumbee Indian churches in
Robeson County, and with one or two exceptions, each has a Lumbee
minister. Church membership crosses family lines and settlement areas,
thus drawing together different sectors of the tribe.
For the Lumbees, church is more than a religious experience; it is
one of their most important social activities. It involves many of them
on a daily basis. The churches have Sunday schools, youth
organizations, senior citizens' programs, Bible study programs, and
chorus practices, to mention but a few of the activities available. It
is common for members of the same household to attend different
churches, and this behavior further acts to bring the tribal membership
An additional and important activity of the churches is to hold an
annual ``homecoming'' during the fall. The event is well advertised and
individuals come from great distances to attend. Homecomings are held
on Sundays after church service and are open to all Lumbees. Families
and friends gather in a church's fellowship hall and share a leisurely
meal together. Commonly, there are several hundred tribal members in
attendance. Homecomings are informal gatherings which offer
opportunities for members of a family from different congregations to
join with other families.
The family and the churches also provide the main avenues for
political participation. In studying the Lumbee community, it is clear
that leadership over the years has tended to surface in the same
families from generation to generation, something like a system of
inherited leadership. These leaders have gained prominence through
their participation in the educational system and as church leaders. In
the past, many of the tribe's most dynamic leaders were ministers and
teachers. Today, there are other avenues for the demonstration of
leadership qualities, but family, education and religious values still
The importance of the role played by the Lumbee churches in the
political life of the tribe cannot be overstated. During the 1990's, it
was the leadership from the churches that initiated and sustained the
process for preparing a tribal constitution. The delegates to the
constitutional convention were selected by the churches and represented
every segment of the tribe. After nearly 10 years of meetings,
negotiations, court actions, and re-drafts, the constitution was
presented to the tribal members for their approval. On November 6,
2001, the tribal members voted on the constitution. Eighty-five percent
of those voting voted in favor of adoption. The approved constitution
is recognized by the State of North Carolina, and it is the tribe's
To determine the level of geographic concentration of modern day
Lumbees, a random sampling of tribal members was prepared. This is a
methodology approved by the BIA in its analysis of a tribe's community
in the administrative acknowledgment process. A 1 percent systematic
sample was drawn from the Lumbee membership files as of December 2002.
Of the 543 files drawn, 29 were found to contain the name of deceased
individuals, or were missing from the files, leaving a balance of 514
files. This corresponds closely with the number of active members
[52,850] as reported to the Lumbee Tribal Council in December 2002.
The residency pattern of the Lumbee tribal members is divided into
three categories: Core area where the tribal members live in either
exclusively or nearly exclusively Lumbee geographical areas; those
living somewhere in North Carolina; and those living elsewhere.
Included in the first category are the following communities in Robeson
County: Pembroke, Maxton, Rowland, Lumberton, Fairmont, St. Paul's, and
Red Springs. Within these communities are areas that are exclusively
[or nearly so] occupied by Lumbees. These areas are reflected on the
The data show that of the 511 for whom there was residency data,
330 [64.6 percent] live in the core area, 102 [19.9 percent] live in
the State of North Carolina, and the 79 [15.4 percent] live elsewhere,
almost all of them in the United States. This high degree of geographic
concentration establishes the existence of a Lumbee community, even
without any further evidence. See discussion below. Based on census and
other data, the Tribe demonstrates the same high level of geographic
concentration going back well into the nineteenth century, or as far as
there are data available.
A second indication of community is the level of in-marriage within
a community. Using the same sample, there were 276 records that
provided information on the age and marital status of individuals. Of
these, 49 were younger than 16, the age selected as marriageable.
Another 23 were identified as single, leaving 204 with known marriage
partners. Of this number 143 [70 percent] were married to another
Lumbee tribal member. Of the remaining 61, 59 were married to non-
Indians and 2 were married to members of other tribes. Again, this high
in-marriage rate establishes the existence of a Lumbee community, even
without any further evidence. See discussion below. As with residency,
based on census and other data, it is certain that the Tribe can
demonstrate comparably high in-marriage rates for the preceding
periods, going back well into the nineteenth century, or as far as
there are data available.
As discussed above, the Lumbee Tribe of North Carolina organized,
ran, and largely financed its own school system and teacher's training
college for nearly 100 years. It has had and continues to have a
complex network of churches that exclusively or nearly exclusively
serve the tribal members. Many of these churches are tied together by
three exclusively Lumbee 10 organizations--the Burnt Swamp Baptist
Association [60 churches], the North Carolina Conference of the
Methodist Church [12 churches], and the Lumber River Holiness Methodist
Conference [9 churches]. The others are non-affiliated. All of these
demonstrate clear political authority within the community that is
accepted as such by the outside world.
A specific example of tribal political authority in the education
context is illustrative. In 1913, State Attorney General Thomas Bickett
issued an opinion that the Robeson County Board of Education, then
controlled by non-Indians, had authority to overrule a Lumbee Indian
school committee's decision to exclude a child who did not meet the
tribe's eligibility requirements from an Indian school. This was
unacceptable to the tribe. Tribal leaders sought and obtained State
legislation in 1921 that reaffirmed the tribe's authority to determine
eligibility to attend the Lumbee schools.
Another example of Lumbee political autonomy outside the context of
education involved the ultimate political control--the ability to
directly elect leadership for the Town of Pembroke located in the heart
of the Lumbee community and occupied almost exclusively by Indians. At
the time of its incorporation in 1895, State law required that public
officials of the town be appointed by the Governor rather than
elected--the only incorporated town in the State so governed. Under
pressure from Lumbee tribal leaders, this State law was changed in 1945
to allow for direct election of town officials by the residents there,
just as in all other incorporated towns in the State. Since then, the
mayor and town council of Pembroke have all been Lumbee Indians.
From the 1960's on, the Lumbee leadership sought to maintain
control over their schools and college, and when that was no longer
possible, to share political power in Robeson County. They instituted
lawsuits to abolish double voting, fought to save the college's main
administration building, and when that burned down, to have it rebuilt,
and elect Lumbee leaders to county positions. The tribe submitted a
petition for Federal recognition under 25 CRF 83. Finally, beginning in
1993, the tribe began the process that eventually led in 2002 to the
present constitution and tribal government. The process started with
funds from a Methodist Church grant, the delegates were chosen from the
participating churches, and the process was deeply influenced by church
leaders. The results were overwhelming endorsed by the tribal
population in two referenda--1994 and 2001.
In 1978, the Department of the Interior established a regulatory
process for the acknowledgment of Indian tribes. 25 C.F.R. Part 83. The
Department has determined that the Lumbee Tribe is not eligible for
this administrative process because of the 1956 Lumbee Act. However,
the history and data establish that the tribe nonetheless meets the
seven mandatory criteria used in the Department's regulations to define
an Indian tribe. Those seven mandatory criteria are:
(a) identification as an American Indian entity on a substantially
continuous basis since 1900;
(b) a predominant portion of the petitioning group comprises a
distinct community and has existed as a community from historical times
until the present;
(c) the petitioner has maintained political influence or authority
over its members as an autonomous entity from historical times until
(d) a copy of the group's present governing document including its
(e) the petitioner's membership consists of individuals who descend
from a historical Indian tribe or tribes which combined and functioned
as a single autonomous political entity;
(f) the membership of the petitioning group is composed principally
of persons who are not members of any acknowledged North American
(g) Neither the petitioner nor its members are the subject of
congressional legislation that has expressly terminated or forbidden
the Federal relationship.
Criterion (a) Identification as an Indian entity
This criterion can be met by showing evidence of Federal, State, or
county relationships, or identification by historians or social
scientists, in books or newspapers, or by relationships with other
tribes or national, regional or state Indian organizations since 1900.
There are repeated and numerous identifications of the Lumbee Tribe as
an Indian entity since 1900, as shown in the summary of the tribe's
efforts to obtain Federal recognition above. There can be no serious
question that the Lumbee Tribe can and has demonstrated this criterion.
Criterion (b) Community
This criterion provides a number of ways to demonstrate community,
foremost among these are rates of marriage and residency patterns. The
regulations provide that an Indian group has conclusively demonstrated
this criterion by proof that 50 percent or more of its members reside
in a geographical area composed exclusively or almost exclusively of
tribal members, or that at least 50 percent of its members are married
to other tribal members. These are the so-called high evidence
standards. As established above, the Lumbee Tribe meets both these high
evidence standards, both historically and in modem times. This means
that the Lumbee Tribe has conclusively demonstrated community as
defined by the regulations, typically the most difficult part of the
administrative process for petitioning tribes.
Criterion (c) Political
The regulations provide that if community is proven by high
evidence as exhibited by the Lumbee community, this is considered
conclusive proof of political authority as well. In other words, the
same high evidence of community exhibited by the Lumbee also
conclusively demonstrates political authority for the Lumbee Tribe,
both historically and in modern times. In addition, the actual evidence
of political authority summarized above--from the substantial and
active political relationship maintained with the State of North
Carolina since 1885, repeated efforts organized by tribal leaders to
obtain Federal recognition, and persistent resistance to challenges to
tribal independence--show vibrant and effective political leadership
within the tribe, both historically and in modern times.
Criterion (d) Governance
This criterion requires that a petitioner submit either a statement
describing its system of governance or its governing document. By the
adoption of a tribal constitution, one that has been recognized by the
State of North Carolina, the tribe clearly demonstrates this criterion.
Criterion (e) Descent from a historical tribe or tribes
As to criterion (e), Dr. John R. Swanton, a member of the staff of
the Bureau of American Ethnology, a Federal Government agency, and one
of the Nation's foremost anthropologists and experts on American Indian
tribes, particularly in the southeast, concluded in the early 1930's
that the Lumbees are descended predominantly from Cheraw Indians. The
Department of the Interior adopted this position in its 1934 statement
to Congress on one of the proposed recognition bills, relying on Dr.
Swanton's report. This has also been confirmed and supported by
scholars such as Dr. William C. Sturtevant, Chief Ethnologist of the
Smithsonian Institution and general editor of the Handbook of American
Indians and Dr. James Merrell, Professor of History, Vassar College,
and a leading authority on the colonial Carolinas. Both of their
statements are attached.
Criterion (f) Petitioner's members are not members of any federally
The members of the Lumbee Tribe of North Carolina are not members
of any federally recognized tribe. This can be demonstrated by a review
of the tribe's genealogical data.
Criterion (g) The petitioner has not been the subject of a Federal
The Solicitor for the Department of the Interior has determined
that the 1956 Lumbee Act is an act forbidding the Federal relationship.
Typically, Indian tribes petitioning for acknowledgment under the
administrative process have most difficulty with criteria (b) and (c),
community and political authority respectively. Every tribe that has
been denied acknowledgment through the process to date has failed
because of the inability to prove these criteria, and perhaps others.
As demonstrated above, the Lumbee Tribe's case on these criteria is so
strong as to be conclusive. In light of the heavily documented history
of the tribe since 1900, neither can there be any doubt about the
Tribe's ability to demonstrate the other criteria.
In the past few years, the BIA has opposed bills to recognize the
Lumbee. The Bureau has complained that there is too little data,
specifically that a genealogical link between the Cheraw Tribe on
Drowning Creek and the present-day Lumbee Tribe on the renamed Lumber
River cannot be made, despite the occurrence of shared and uncommon
surnames. Of course, the failure of the dominant society to record the
births and deaths of Lumbees before 1790 is no fault of the tribe; nor
does this absence suggest that the Lumbee Tribe is not descended from
the Cheraw Tribe. In fact, the Department testified in 1934 that the
tribe was descended from the Cheraw Tribe, based upon the work of the
eminent Dr. Swanton. The Department's earlier opinion is also
corroborated by the professional opinions of Drs. Sturtevant and
Merrill. Thus, the Department's more recent view should be taken as
more intellectual curiosity than serious doubt about the origins of the
tribe. And this new found curiosity should be judged in the context of
the Department's long-standing determination to oppose recognition of
the tribe, even in the face of its past judgment that the Lumbees truly
are an Indian tribe.
The extensive record of the tribe's history in the 18th, 19th, and
20th centuries establish that the Lumbee Indians constitute an Indian
tribe as that term is defined in the Department of the Interior's
acknowledgment regulations. The tribe fails only on the last criterion,
that is, Congress has prohibited the Department from acting on the
Tribe's petition in the 1956 Lumbee Act. Thus, the Congress can act on
S. 660 with full confidence that the Lumbees are, in fact, an Indian
Prepared Statement of R. Lee Fleming, Director, Office of Federal
Acknowledgment, Department of the Interior
Good morning, Mr. Chairman and members of the committee. My name is
Lee Fleming and I am the director of the Office of Federal
Acknowledgment at the Department of the Interior [Department]. I am
here today to provide the Administration's testimony on S. 660, the
Lumbee Recognition Act. The recognition of the continued existence of
another sovereign is one of the most solemn and important
responsibilities delegated to the Secretary of the Interior, which the
Department administers through its acknowledgment regulations at 25
C.F.R. Part 83. Federal acknowledgment, or recognition, of tribal
status enables Indian tribes to participate in Federal programs and
establishes a government-to-government relationship between the United
States and the Indian tribe. Acknowledgment carries with it certain
immunities and privileges, which may include exemptions from State and
local jurisdiction and the ability of newly acknowledged Indian tribes
to undertake unique economic opportunities.
Under the Department's acknowledgment regulations, petitioning
groups must demonstrate that they meet each of the seven mandatory
criteria. The petitioner must:
(1) demonstrate that it has been identified as an American Indian
entity on a substantially continuous basis since 1900;
(2) show that a predominant portion of the petitioning group
comprises a distinct community and has existed as a community from
historical times until the present;
(3) demonstrate that it has maintained political influence or
authority over its members as an autonomous entity from historical
times until the present;
(4) provide a copy of the group's present governing document
including its membership criteria;
(5) demonstrate that its membership consists of individuals who
descend from an historical Indian tribe or from historical Indian
tribes that combined and functioned as a single autonomous political
entity and provide a current membership list;
(6) show that the membership of the petitioning group is composed
principally of persons who are not members of any acknowledged North
American Indian tribe; and
(7) demonstrate that neither the petitioner nor its members are the
subject of congressional legislation that has expressly terminated or
forbidden the Federal relationship.
A criterion is considered met if the available evidence establishes
a reasonable likelihood of the validity of the facts relating to that
The Department recognizes that under the U.S. Constitution Indian
Commerce Clause, Congress has the authority to recognize a ``distinctly
Indian community'' as an Indian tribe. But along with that authority,
it is important that all parties have the opportunity to review all the
information available before recognition is granted. That is why the
Department of the Interior supports a recognition process that requires
groups go through the Federal acknowledgment process because it
provides a deliberative uniform mechanism to review and consider groups
seeking Indian tribal status. Notwithstanding that preference, the
Department recognizes that some legislation is needed given the unique
status of certain Indians in North Carolina.
In 1956, Congress designated Indians then ``residing in Robeson and
adjoining counties of North Carolina'' as the ``Lumbee Indians of North
Carolina'' in the Act of June 7, 1956 (70 Stat. 254). Congress went on
to note the following:
Nothing in this act shall make such Indians eligible for any
services performed by the United States for Indians because of
their status as Indians, and none of the statutes of the United
States which affect Indians because of their status as Indians
shall be applicable to the Lumbee Indians.
In 1989, the Department's Office of the Solicitor advised that the
1956 Act forbade the Federal relationship within the meaning of the
acknowledgment regulations, and that the Lumbee Indians were therefore
precluded from consideration for Federal acknowledgment under the
administrative process. Because of the 1956 Act, legislation is
necessary for the Lumbee Indians to be afforded the opportunity to
petition for tribal status under the Department's regulations. The
Department would welcome the opportunity to assist the Congress in
drafting such legislation.
If Congress elects to bypass the regulatory process in favor of
legislative recognition of the Lumbee in a manner granting full
sovereign rights, then the Department makes the following comments on
S. 660, as currently drafted.
S. 660 extends Federal recognition to the ``Lumbee Tribe of North
Carolina'' and permits any other group of Indians in Robeson and
adjoining counties whose members are not enrolled in the Lumbee Tribe
to petition under the Department's acknowledgment regulations. The
Office of Federal Acknowledgment has received letters of intent to
petition from six groups that may overlap with each other. In addition,
we have identified over 80 names of groups that derive from these
counties and are affected by the 1956 Lumbee Act. Some of these groups
claim to be the ``Lumbee'' Tribe. Therefore, we recommend Congress
clarify the Lumbee group that would be granted recognition under this
bill. Not doing so could potentially expose the Federal Government to
unwarranted lawsuits and possibly delay the recognition process.
One of the benefits or privileges available to recognized Indian
tribes is the ability to conduct gaming under the Indian Gaming
Regulatory Act [IGRA]. Under S. 660, any fee land that the Lumbee seeks
to convey to the United States to be held in trust shall be considered
an ``on-reservation'' trust acquisition if the land is located within
Robeson County, North Carolina, and gaming will be allowed on those
lands under the provisions of IGRA. Prior to conducting class III
gaming, the Lumbee Tribe of North Carolina would need to negotiate a
gaming compact with the State of North Carolina. In addition, the
Lumbee Tribe of North Carolina must have lands taken into trust.
Generally, if a tribe wants to game on land taken into trust after the
passage of IGRA, it must go through the two-part determination
described in 25 U.S.C. Sec. 2719(b)(1)(A). This process requires the
Secretary to determine, after consultation with the tribe and the local
community, that gaming is in the best interest of the tribe and its
members and not detrimental to the local community. If the Secretary
makes that determination in favor of allowing gaming, then the gaming
still cannot occur without the Governor's concurrence.
Under S. 660, the State of North Carolina has jurisdiction over
criminal and civil offenses and actions on lands within North Carolina
owned by or held in trust for the Lumbee Tribe or ``any dependent
Indian community of the Lumbee Tribe.'' The legislation, however, does
not address the State's civil regulatory jurisdiction, which includes
jurisdiction over gaming, zoning, and environmental regulations.
We are concerned with the provision requiring the Secretary, within
1 year, to verify the tribal membership and then to develop a
determination of needs and budget to provide Federal services to the
Lumbee group's eligible members. Under the provisions of this bill, the
``Lumbee Tribe'', which the Department understands includes over 40,000
members, would be eligible for benefits, privileges and immunities that
are similar to those possessed by other federally recognized Indian
tribes. In our experience verifying a tribal roll is an extremely
involved and complex undertaking that can take several years to resolve
with much smaller tribes. While we believe there are approximately
40,000 members, we do not currently have access to the Lumbee's tribal
roll and thus do not have the appropriate data to estimate the time to
verify them nor do we know how many Lumbee members may be eligible to
participate in Federal needs based programs. Moreover, S. 660 is silent
as to the meaning of verification for inclusion on the Lumbee group's
In addition, section 3 may raise a constitutional problem by
purporting to require the President to submit annually to the Congress
as part of his annual budget submission a budget that is recommended by
the head of an executive department for programs, services and benefits
to the Lumbee. Under the Recommendations Clause of the United States
Constitution, the President submits for the consideration of Congress
such measures as the President judges necessary and expedient.
Should Congress choose not to enact S. 660, the Department feels
that at a minimum, Congress should amend the 1956 Act to afford the
Lumbee Indians the opportunity to petition for tribal status under the
Department's acknowledgment regulations.
This concludes my prepared statement. I would be happy to answer
any questions the committee may have.
Prepared Statement of Hon. Robin Hayes, U.S. Representative from North
Chairman McCain and Vice Chairman Dorgan, I appreciate you taking
the time to hold this hearing on the Lumbee Recognition Act, S. 660.
Since I have been in Congress, I have worked hard to see that the
Lumbee Tribe receives full Federal recognition.
As you know, this past June marks the 50th anniversary of the 1956
Lumbee Act, which acknowledged the Lumbee Tribe as an Indian tribe;
however, Congress withheld giving the tribe full Federal recognition. I
know Senator Dole and Senator Burr are working hard to garner strong
support the Lumbee Recognition Act, and I appreciate their leadership
on this issue in the Senate.
I am a proud original cosponsor of the House companion bill, H.R.
21, which was sponsored by my friend and colleague Congressman Mike
McIntyre. Mike has been a tireless advocator of the Lumbee Tribe and it
has been a pleasure working with him on this issue as well.
The Lumbee Indian Tribe has an extensive history in North Carolina
ranging back to 1724 on Drowning Creek, which is now referred to as the
Lumbee River. The Lumbee Tribe has been recognized by the State of
North Carolina since 1885. The Lumbee Tribe has over 40,000 members and
is the largest tribe in the State of North Carolina.
The 8th District, which I serve, is home to many of the Lumbees
that reside in North Carolina, primarily in Hoke, Scotland, and
Cumberland counties. I strongly believe that these important members of
my constituency deserve Federal recognition so they are able to receive
various Bureau of Indian Affairs and other Federal Government services
and programs they rightly deserve.
The heritage of the Lumbee Tribe is as strong today as when first
recognized by North Carolina and the tribe should be proud of the rich
and valued cultural contribution they have given to our communities. It
is my hope that we as a Congress do what the Federal Government should
have done decades ago and give the Lumbee Tribe the distinction of a
federally recognized tribe.
Thank you all again for holding this hearing. I look forward to
continuing to work with you all on this important issue.
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