109th Congress. United States Senate. Committee on Indian Affairs. "Hearing on S. 660: To provide for the acknowledgment of the Lumbee Tribe of North Carolina, and for other purposes." First Session. July 12, 2006.
This hearing discusses S. 660, introduced on March 17, 2005, which would amend the 1956 Lumbee Act and provide full federal recognition for the Lumbee Indians.
• Mr. Lee Fleming, Director of the Office of Federal Acknowledgment, U.S. Department of Interior
• The Honorable Jimmy Goins, Tribal Chairman, Lumbee Tribe of North Carolina
• Dr. Jack Campisi, anthropologist, consultant to the Lumbee Tribe, and author of the 1987 Lumbee Petition
• The Honorable Michell Hicks, Principal Chief, Eastern Band of Cherokees
The following is an outline of the hearing based primarily on the Webcast and quoting occasionally from the speakers' prepared remarks. It presents informal notes on points made by the primary speakers and by members of the Senate committee. For the fullest and most specific understanding of the hearing, readers should watch the Webcast, read the PDF files of the speakers' full testimony, and download the full transcript of the hearing when it becomes available from the committee's Web page. Note that the file Goinsexhibit is the Constitution of the Lumbee Tribe.
Senator John McCain, chairman of the committee, opened the hearing with brief remarks. He noted that, for the record, his position has generally been to oppose to Congressional recognition. The BIA acknowledgement process provides a rigorous review of tribes, and he is usually in favor of relying on that process; but he understands that the 1956 Lumbee Act was passed at a time when many Indian tribes were treated unfairly. He also understands that the Lumbee completed a petition only to be informed later that the 1956 Lumbee Act made it impossible for them to be a candidate for the BIA process.
Sen. Elizabeth Dole, sponsor of the bill, noted that in 1987 Congress passed special legislation to recognize the Tiwa, whose original recognition act, passed in 1968, was modeled on the 1956 Lumbee Act. The Lumbee are the only tribe left unrecognized who were barred by 1950s termination legislation. She stated that there was no need to waste the tribe's or the government's time with the petition process. She urged that S. 660 be reported out of committee as expeditiously as possible.
Rep. Mike McIntyre, who introduced H.R. 21, a companion bill, in the House, stated that his bill has 211 cosponsors from many regions of the country and from both parties. He noted a number of local and regional organizations in North Carolina that have expressed support of his bill, including the Chamber of Commerce and the Southeastern Regional Medical Center. He stated that the "evidence is clear, cogent, and convincing" for providing full recognition for the Lumbee. He urged, "It is time for discrimination to end and recognition to begin."
Mr. R. Lee Fleming, Director of the Office of Federal Acknowledgement of the U. S. Department of Interior, provided "the administration's testimony" on S. 660. [Download Mr. Fleming's full testimony.] He reviewed the seven mandatory criteria provided in 25 CFR Part 83 for federal acknowledgement of tribes through the BIA's petition process, and he also discussed the 1956 Lumbee Act. He said the BIA recognizes that Congress has the authority to recognize a tribe; however, the BIA feels it is important that all parties first have the opportunity to review all the evidence about the tribe, and the BIA's process provides a "deliberate, uniform mechanism" for doing so. He stated that if Congress decides to grant the Lumbee full recognition, his office has several comments on S. 660 as currently drafted. The comments concerned the following issues:
• "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." [Quoted directly from Mr. Fleming's prepared statement, pages 2-3].
• Fleming commented on the process set forth in S. 660 for the Lumbee Tribe to set aside fee land that might later be used for gaming under the Indian Gaming Regulatory Act (IGRA) and on the sequence of approvals that would be required to use the land for gaming (including a compact with the State of North Carolina).
• Fleming expressed concern that S. 660 does not address the State of North Carolina's civil regulatory jurisdiction in regard to the tribe's activities.
• There was concern about S. 660's requirement that the BIA verify the tribal roll and come up with a budget for delivery of services within one year of passage of the bill.
• "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." [Quoted directly from Mr. Fleming's prepared statement, pages 3-4].
Mr. Fleming concluded his prepared remarks with a recommendation that if Congress does not enact S. 660, it should, at a minimum, submit legislation to amend the 1956 Lumbee Act to allow the tribe to go forward with the petition process. He then responded to questions from the committee.
In response to a question from Senator McCain, Mr. Fleming estimated that, if the 1956 Lumbee Act were amended to allow the Lumbee Petition to be acted on, it would take the BIA's staff at least four years to get to the Lumbee Petition, given the current size of their staff and the tribes ahead of the Lumbee in the queue.
In response to a question about the other Native American groups from Robeson and adjoining counties who are petitioning the BIA or have materials in the BIA's correspondence files: Fleming noted that if S. 660 is enacted, and there is found to be overlapping of membership, governing bodies,or ancestry of these other groups with the Lumbee, then members of the other groups could claim that they, also, have been federally acknowledged.
Fleming said that the BIA staff could not verify the approximately 53,000 members on the Lumbee tribal roll in one year. Even with small tribes, it takes the BIA three or four years to verify the tribal roll. He added that verification must be done carefully because individuals are certified for government services.
In response to a question from Senator Thomas, Fleming explained that the weakness that had emerged when the BIA had considered the previous bills for Lumbee recognition and the previous government reports on the Lumbee was a "lack of pinning down the historical tribe from 1585 and up--a lack of evidence."
Senator Burr asked Mr. Fleming what was meant in the BIA mandatory criteria by "historical times." Mr. Fleming explained that this means "first sustained contact with Europeans." Senator Burr noted that most tribes don't have or didn't keep documented records of having existed from historical times to the present. He asked whether the tribes that currently have federal recognition but obtained it before the BIA criteria were written could meet the BIA criteria requiring documentation from historical times until the present. Mr. Fleming noted that there are currently 561 federally recognized tribes. He said that records exist on the federal, state, county, local, and tribal/group level, and that there is tremendous research that can be found. He believes that of the 561 federally recognized tribes, all would be able to gather enough documentation to meet all 7 mandatory BIA criteria. Senator Burr then asked what types of evidence tribes could use when the federal government didn't go into their area until after our country was created. Mr. Fleming replied that tribes use colonial records, documents showing there were leaders of the tribe, and documents showing that individuals followed those leaders.
Senator Burr restated Mr. Fleming's statement: "You said you are not opposed to the bill but that it needs clarification and improvement so that it doesn't reach out further than the intent was in relation to potential petitioners." Mr. Fleming replied: "I believe my statement did not present a position of opposition and it did not present a position of support."
Senator Burr asked Mr. Fleming about the Indian Reorganization Act period, when the Office of Indian Affairs recommended that the tribe put land in trust in preparation for possible reorganization. He inquired about whether this recommendation suggested that the Office of Indian Affairs thought the Lumbee were a tribe that might be recognized. Mr. Fleming stated that many tribes were being looked at for recognition during that period, but he did not know the details.
Senator Burr noted, with dates, the many periods since 1888 when "the Lumbee followed the appropriate process," doing what was required to obtain federal recognition. Then the federal government rewrote the criteria and instituted the BIA petition process. Burr then asked Mr. Fleming if he believed the Lumbee had been treated equitably and fairly. Mr. Fleming replied that the Lumbee had in fact submitted a petition to the BIA, and it was during the BIA's process of preparing its technical assistance review letter (in order to understand any deficiencies in evidence in meeting the seven mandatory criteria) that the problem with the 1956 act was discovered and a solicitor's opinion was asked for. The solicitor's opinion stated that the Lumbee were ineligible to continue with the petition process. Mr. Fleming added that this is why the BIA has consistently recommended that the 1956 Lumbee Act be amended to allow the Lumbee the same equitable action that has been provided to other petitioners. Senator Burr then amended his question, explaining that what he wanted to know was whether Mr. Fleming felt, as a fellow Native American, that the Lumbee had been treated equitably and fairly in comparison to other tribes who had been caught in the same situation with termination language in their recognition acts. He said he understood that it was not fair to expect a personal reply to such a question from a federal employee, so he thanked Mr. Fleming for his remarks and yielded his time.
• The Honorable Jimmy Goins, tribal chairman of the Lumbee Tribe, presented testimony. [Download Chairman Goins's complete testimony.] He noted that his kinsmen signed a petition in 1888 asking for financial assistance. This was also the first time the tribe requested federal recognition. The request was referred to the Department of Interior but was turned down because of the cost. Goins explained that at every request since then, the Department of Interior has opposed recognition of the Lumbee--because of the cost of the service, not because the Lumbee are not Indians. Goins noted that he served in Vietnam, earning a Purple Heart and a Bronze Star. His enlistment and discharge papers listed him as Indian. He served his government, but when he came home, his government refused to acknowledge his people as what they are. He expressed the pain that he and other Lumbee veterans feel at having fought for their country but now having to fight against it [in trying to obtain federal recognition.] He discussed "myths" relating to the Lumbee that are used by people who oppose their recognition. In terms of size of the tribe and cost of service, he said that estimates are usually inflated. He noted that 34,000 Lumbees reside in the service area specified by S. 660, so the actual cost of recognition would be for those members, not for all 53,000 members on the tribal roll. He noted that opponents of Lumbee recognition say the Lumbee should go through the BIA, not through Congress; yet the majority of tribes that are now recognized were recognized by Congress. He noted that people criticize the Lumbee because they have had different tribal names during their history. He explained that those names were given to the tribe by the state legislature and that the tribe itself didn't choose those names. The only name chosen by the people was the name "Lumbee." Goins said the "most insulting" myth is that "some say we're not even Indian." He said that "the people who say this haven not been in our community and do not know us." He replied, "We will match the strength of our history and community against any Indian tribe."
• The Honorable Michell Hicks, Principal Chief of the Eastern Band of Cherokees, presented the following arguments in opposition to passage of S. 660. [Download Chief Hicks's complete testimony.] He explained that the Eastern Band has a living, breathing culture. His tribe has long defended its identity, which has been threatened by many other groups who claim, or have at some point claimed, to be Cherokee and whose legitimacy as such is questionable at best. He implied that Lumbee efforts to obtain federal recognition constitute a threat to Cherokee identity because from 1913 until 1953, the tribe's name, based on state legislation, was "Cherokee Indians of Robeson County." He added, as further evidence, the fact that the tribe sought federal recognition from Congress as Cherokee Indians in 1924 and again in 1932. Another argument Hicks presented is that the Lumbee have pursued federal recognition through Congress thirteen times under four different tribal names. He said that experts say the Lumbee claims using these names don't make sense because the tribes represent different linguistic groups. Hicks argued that it undermines the integrity of his tribe's long-standing government-to-government relationship when politics and emotion, rather than facts about tribal identity, drive federal recognition decisions. He further asserted that Congress is not equipped to make decisions on federal recognition of the Lumbee, but the BIA's Office of Federal Acknowledgement is. Hicks also pointed out that the Lumbee submitted their petition to the BIA on December 17, 1987 [date corrected; misstated as Jan. 7, 1980] and received notice on October 23, 1989 [date corrected; misstated as Nov. 20, 1989] that the 1956 Lumbee Act prevented the BIA from completing the processing of the petition. Hicks stated that in the 17 years since that notice in 1989, the Lumbee have not sought legislation amending the Lumbee Act to allow them to continue through the BIA's process. He wondered "whether the Lumbee want to avoid the BIA process because they feel it is unfair or because they know it would truly examine the factual issues about Lumbee tribal identity." He said that if the Lumbee had sought legislation allowing them to go through the BIA process, they "would have an answer today." Finally, Hicks stated that the Eastern Band of Cherokees, its sister tribes of the Cherokee Nation, the United South and Eastern Tribes, and various other tribes strongly oppose S. 660. He added, "Alternatively, the Eastern Band would support legislation that would clear the way for the Lumbee petition filed with the OFA to be considered. This is the only fair way to resolve this issue" [quoted from Chairman Hicks's prepared statement, page 1].
• Dr. Jack Campisi, anthropologist and consultant to the Lumbee Tribe, presented testimony. [Download Dr. Campisi's complete testimony.] Dr. Campisi has worked with the Lumbee for more than 20 years. He stated that the Lumbee tribe exists as an Indian tribe and has done so since sustained contact. Dr. Campisi then presented three main points to justify this statement:
(1) The historical record is clear that the Lumbee descend from the historical Cheraw tribe. The Cheraw were located precisely where the Lumbee are today. Dr. Campisi showed the committee a 1725 map with the location of the Cheraw tribe. A 1771 newspaper account identifies a Cheraw settlement on Drowning Creek. In 1809, a North Carolina law changed the name of Drowning Creek to Lumber River. A 1773 document lists members of the Cheraw community; the list includes some of the same uncommon names (such as Locklear, Groom, Dees, and Chavis) found among the Lumbee today. Today's Lumbee tribe descends directly from these same families. The oldest Lumbee community, Prospect, is located on Cheraw tribal lands. Every expert who has examined Lumbee tribal history (including John R. Swanton in 1933, James H. Merrill in 1989, and William R. Sturtevant, chief ethnologist of the Smithsonian Institution and general editor of the Handbook of North American Indians) has said that the Lumbee are a tribe, regardless of changes in tribal name.
(2) The strength of the Lumbee community. Campisi said he has never seen a stronger Indian community than the Lumbee's. He presented data from random-sample research he conducted, showing that the Lumbee have a 70% rate of tribal in-marriage, or marriage between tribal members, and a high rate of tribal members living in the same geographic area. He stated that the Lumbee have a remarkable rate of social cohesion--higher than many federally recognized tribes.
(3) The tribe's long history of tribal governance and intense political activity. The Lumbee have, over their long history, vigorously defended their tribe. A few examples of their tribal activity include their ongoing relations with the state of North Carolina; their efforts to gain federal recognition; and the 1958 routing of a Ku Klux Klan rally in the heart of the Lumbee community. Campisi notes that Lumbee churches have long been at the core of Lumbee identity. There are over 130 all-Indian churches in Lumbee country. Leadership of the tribe has frequently come from church leaders, and the tribal constitution process is a recent example. Campisi concluded by stating that in regard to the BIA's seven mandatory criteria, the Lumbee fail only on the last criterion [Criterion (g) The petitioner has not been the subject of a federal termination act]; thus Congress can act on S. 660 with full confidence that the Lumbee are indeed an Indian tribe.
In the questions that concluded the hearing, the following points were made:
• Chairman Goins stated that the Lumbee are not afraid of the BIA process but do not trust the BIA, because in 1934 the BIA said the Lumbee were descendants of the Cheraw tribe, yet the Lumbee are still fighting for recognition as descendants of the Cheraw tribe. He added that the previous bills failed not because of the tribe's identity but due to input to Congress from the BIA. Congressional bills preceding the 1956 Lumbee Act were introduced without termination language, but Congress was influenced by the Interior Department to add the termination language. Arlinda Locklear, attorney for the Lumbee Tribe, added on the latter point that the legislative history shows that Congressional bills from 1899-1956 failed because of opposition by the Interior Department. Senator McCain replied that Congress does not carry out the dictates of any department. In his more than 20 years in Congress, he has never followed the dictates of any branch of government. He explained that Congress receives advice, counsel, and recommendations from other branches, but they do not dictate to Congress.
• Senator McCain asked Chief Hicks how the Eastern Band of Cherokee achieved federal recognition. Hicks replied, "by a federal process." After further questioning, Hicks clarified that his tribe was in fact recognized in 1868 by a legislative process (by Congress)--but his tribe had a long history of relations with the federal government, and at that time there was not a BIA process. He reiterated, "There has never been a question about the Cherokee people."
• Senator McCain asked Chairman Goins if the Lumbee have given any consideration to gaming. Chairman Goins replied, "Gaming is not an issue with us. We started this process in 1888. We're interested in jobs, health care, and just doing what's right for the Lumbee people. It's about hope and dignity." Senator McCain then asked, "Has it [gaming] been a consideration as you've moved through this process?" Chairman Goins replied, "No."
• Senator McCain noted that Chairman Goins said, in his formal testimony, that if legislation were passed allowing the Lumbee to go through the BIA process, the tribe would feel that this would be too long and difficult a process. He asked Chairman Goins if this is still his feeling. Chairman Goins replied, "Yes."
• Senator Burr then asked several questions and made several comments to the witnesses. He began by stating, "I personally think we're long past the point of a normal process" [meaning the BIA petition process]. "Fifteen years is an additional injustice at the hands of Congress." Burr noted that since 1960, 15 tribes had been recognized by the BIA petition process and 16 by Congressional action.
• Senator Burr asked Chief Hicks why the Eastern Band of Cherokee did not object to the recognition of the Tonto Apache Tribe of Arizona, the Modoc of Oklahoma, the Cow Creek Band of the Umpqua Tribe of Oregon, or even, in 1987, the Tiwa tribe, all of whom were recognized by Congressional action. Burr noted that the Tiwa's original Congressional recognition act was modeled on the 1956 Lumbee Act. He added that some of the points Chief Hicks made about Congressional recognition of the Lumbee could have been made about any of the 16 tribes that have been recognized by Congress since 1960. Chief Hicks replied that each situation was different, and the Eastern Band decided its position on each based on the merits of that case. Burr stated that Chief Hicks has argued that the cost of recognizing the Lumbee is too significant. He asked Chief Hicks, "What was the cost of Cherokee recognition?" He noted that Congress did not put a cost to the American taxpayer on recognition of the Cherokee. When the Cherokee were recognized, Congress looked at the Cherokee and said, "We made a mistake." Congress looked at righting an injustice, not at the cost. Congress should do the same now, with the Lumbee. Hicks replied that the Congressional Budget Office has estimated the cost of Lumbee recognition to be over $700 million over a 4-year period. Burr replied that Chief Hicks wants the Lumbee to go through the BIA petition process, which has seven mandatory criteria, none of which involves the cost of services to the tribe. Yet Hicks argues that Congress should consider cost in its decision on whether to pass S. 660. Burr stated that if S. 660 is not passed, "We may go 15 to 20 or 25 more years to get an answer," adding that he feels it's an injustice to go that long.
• Arlinda Locklear, attorney for the Lumbee Tribe, added clarification about the 1934 Wheeler-Howard Indian Reorganization Act. She noted that there is an extensive administrative record of the Lumbee Tribe's interaction with the Department of Interior about this. She also added clarification about the statement that the tribe has asked for recognition through Congress with bills for four different tribal names. She explained that "the tribe was never asked what they wanted the name to be until 1953." She stated that as soon as the state of North Carolina passed a law recognizing the tribe by a name, the tribe's Congressional delegation then introduced a federal bill for recognition under that same name.