Breaking into the intergovernmental matrix: the Lumbee Tribe's efforts to secure federal acknowledgment.

Record Number: 
WILK007
Citation: 

Wilkins, David E. "Breaking into the intergovernmental matrix: the Lumbee Tribe's efforts to secure federal acknowledgment." Publius: The journal of federalism 23. 4 (Fall 1993): 123-142. Key source

Annotation: 

For readers who want a detailed—yet clear and understandable—guide to the many issues involved in the Lumbee "Trail of Many Years," this article is required reading. Cogently argued and copiously documented, it is as relevant—and as helpful an aid to grasping what true federal acknowledgment would mean for the Lumbee—as it was when it was published fourteen years ago. Federal acknowledgment of Indian tribes is a substantial topic of scholarship, as is—more specifically—the Lumbee Tribe's efforts to obtain it. This article is good grounding prior to reading other scholarly sources. It also aids in understanding current news articles on the topic.

Wilkins, in this article, focuses his attention on ". . . two broad questions: (1) Why do the Lumbee want federal recognition when they already have a measure of state recognition and (2) what major factors have precluded federal acknowledgment after more than 100 years of concerted, though punctuated, effort?" (p. 123).

Before addressing these key questions, Wilkins provides some useful background information on federal acknowledgment:

• Acknowledgment, rather than recognition, is the more accurate term and the term generally used by the federal government itself. Acknowledgment creates a political relationship between the federal government and the tribe; affirms the sovereignty of the tribe; and delineates the federal government's responsibilities to the tribe.

• Acknowledgment gives tribes privileges and immunities (such as exemption from state tax laws and freedom from the constitutional constraints on federal and state governments), but it also ". . . subject(s) the Indian tribe to the same authority of Congress and the United States to which other federally acknowledged tribes are subjected" (p. 126).

• The administrative process for acknowledging tribes was created by authority delegated from Congress to the Interior Department, but there is no specific statutory authority for it.

• Since the creation of the administrative process for federal acknowledgment, there has been much debate over which process is the most appropriate one. The U.S. administration always contends that the administrative process should be followed. However, Wilkins quotes Vine Deloria's 1988 testimony to the Senate Select Committee on Indian Affairs, at their hearing during the 100th Congress on Lumbee federal recognition, that it is unfair to expect tribes to apply to the BIA for acknowledgment because "the BIA must stand in an adversarial role to the [petitioning] Indian community and force the Indian community to prove itself to the Bureau. The Bureau then would certify it as an Indian tribe and turn around and ask it to be in a trust relationship with it" (p. 127).

• Wilkins raises the question of whether the federal government has a responsibility to all Indian groups, or only to those groups that can demonstrate previous political involvement with the federal government. He concludes the former, based on a 1790 act passed by the first Congress; the Synder Act of 1921; and the facts that (a) Congress has continued to enact recognition legislation, and (b) the BIA has created procedures for establishing relationships with nonrecognized tribes.

Wilkins summarizes the history of the Lumbee Tribe's relationship with the state of North Carolina, beginning with the 1885 statute acknowledging them as the Croatan Indians of Robeson County and establishing a separate school system for their children. The 1953 state statute designating them Lumbee Indians of North Carolina is often pointed to as extending state recognition, but Wilkins argues that it does not spell out the services the state will provide, the self-government the tribe can assume, and the immunities to which the tribe is entitled.

In discussing reasons the Lumbee continue to pursue true federal acknowledgment, Wilkins identifies three categories:

(1) Political/legal: True federal acknowledgment would afford the Lumbee a degree of sovereignty. The tribe would have authority over its members, self-governance, and a buffer against intrusion by state and local governments. Wilkins notes that state recognition cannot provide sovereignty because, in Indian affairs, this is the province of the federal government.

(2) Fiscal: Federal acknowledgment would entitle the Lumbee to federal services such as educational support, legal aid, eligibility for housing loans, medical care, and dental care. The federal recognition bill under consideration when this article was written [and H.R. 65, under consideration in July 2007] specifies that the BIA and the IHS would work with the tribe to determine its specific needs, then ask Congress to appropriate the funds. The implication is that this process would be separate from the appropriations already set aside for other federally acknowledged tribes.

(3) Normative: Referring to Robert K. Thomas's Report on research of Lumbee origins, Wilkins explains that the Lumbee desire federal acknowledgment as validation of their Indian identity; to settle, once and for all, their descent from a historical Indian group; for respectability; and to end the decades of neglect by the federal government.

In his discussion of why the Lumbee have not been able to obtain true federal acknowledgment, Wilkins designates four categories:

(1) Political/administrative: 
Lumbee efforts to obtain true federal acknowledgment have been clustered in three eras, two of which were marked by federal policies of detribalization. The 1956 Lumbee Act, still in force, was passed during the termination era, when Congress was introducing measures designed to end services to Indians. Although the Lumbee Act initially mirrored the North Carolina statute passed in 1953 to recognize the Lumbee, the Department of Interior successfully added an exclusionary clause making the Lumbee ineligible for the federal services normally performed for Indians. Wilkins quotes testimony from the Secretary of Interior when the Lumbee Act was being considered by Congress, stating his opposition to ". . . the imposition of additional obligations on the Federal Government or in placing additional persons of Indian blood under the jurisdiction of this Department" (p. 136).

Wilkins also discusses Lumbee efforts to obtain services through the 1934 Indian Reorganization Act (IRA). As evidence of federal intentions to reduce services to Indians, he quotes testimony by Burton K. Wheeler, chairman of the Senate Committee on Indian Affairs, when Congress was trying to determine the degree of Indian blood required of nonrecognized tribes to obtain services under the IRA: "If you pass it to where they are quarter-blood Indians, you are going to have all kinds of people coming in and claiming they are quarter-blood Indian and want to be put up on the Government rolls. . . What we are trying to do is get rid of the Indian problem rather than add to it" (p. 137).

(2) Fiscal/demographic: Wilkins discusses longstanding objections to Lumbee acknowledgment, from BIA officials as well as from other recognized and nonrecognized tribes, because of the perceived financial impact. When this article was published (1993), the Lumbee were the largest nonfederally recognized tribe, comprised 60% of the Indians seeking federal acknowledgment, and were three times the size of the next largest petitioning tribe. Wilkins quotes the Congressional record (1991): "BIA officials often privately acknowledge that, had it not been for the size of the tribe, [they] would have been recognized long ago" (pp. 138-139). Wilkins reiterates that bills for Congressional acknowledgment of the LUmbee have contained provisions that federal services for the Lumbee would be funded by a separate appropriation.

(3) Administrative/legislative: Here Wilkins discusses the Federal Acknowledgment Process (FAP), the administrative process requiring that a tribe's petition be approved by the BIA. There have been criticisms of the FAP's criteria for acknowledgment, especially that they require nonrecognized groups to resemble, culturally and politically, groups that are already recognized; and that the review process is sometimes "inconsistent and often injudicious" (p. 140). Amendments to the criteria were under discussion when this article was written and have since been enacted (to view the latest criteria, go tohttp://www.gpoaccess.gov/cfr/index.html and, in the Quick Search blank, type in: 25CFR83). Some Congressional leaders; BIA staff; and some recognized tribes (especially the Eastern Band of Cherokees) argue that the FAP is the best way for the Lumbee to pursue true federal acknowledgment. Other Congressional leaders and other recognized tribes have supported Lumbee efforts at Congressional acknowledgment.

(4) Cultural: Wilkins summarizes arguments (noted by Robert K. Thomas in his report) that the Lumbee should not receive federal acknowledgment because they do not have a distinctive aboriginal language, a distinctive tribal religion, or are not perceived to have genetic purity. Other arguments levied against Lumbee acknowledgment are: (a) other Indian groups in Robeson County are also petitioning for federal acknowledgment; and (2) the Lumbee have never signed treaties with the federal government or lived on a reservation. In response to these objections, Wilkins notes the numerous nationally known historians and social scientists who have studied the Lumbee extensively and support federal acknowledgment, as well as the resolutions of support submitted during hearings to Congress by other tribes and by the National Congress of American Indians.

Wilkins concludes by noting many unanswered questions about how the Lumbee will fit into the intergovernmental matrix once they receive true federal acknowledgment. Although they will, legally and theoretically, have sovereign status, several Supreme Court cases have held that, since tribal rights are not constitutionally guaranteed, the various branches of the federal government can exert power over those rights. Tribes have a status higher than that of states, according to a federal court case. Still, the Congressional bills for Lumbee acknowledgment have given the state of North Carolina civil and criminal jurisdiction over tribal lands. Wilkins asserts, "The passage of a federal law explicitly acknowledging the tribe, if it ever occurs, will have an unpredictable impact on intra-tribal, inter-tribal, and intergovernmental relations" (p. 142).

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