Lumbee Tribe of Cheraw Indians, et al., vs. Lumbee Regional Development Association, Inc. Robeson County Superior Court, 95 CVS 02047. Filed in open court, 4:50 pm on June 11, 1999. Memorandum of Decision and Order by Howard E. Manning, Jr., Superior Court Judge. 96 pages.
The case came to trial without a jury, in civil session of the Robeson County Superior Court on 9 November 1998. The memorandum of decision and order first gives a procedural history of the case. Essentially, both parties claim to be the governing body of the state-recognized Lumbee Tribe. The civil action was filed by the “Lumbee Tribe of Cheraw Indians” (LTCI) on 15 September 1995. LTCI “claims it is the lawfully constituted government of the Lumbee Tribe and seeks to have its status recognized” (p. 2). It also asks the court to enjoin LRDA from presenting itself as the tribe's government. LRDA contends that LTCI is not the tribe's government, but LRDA is and should remain so until the Tribe achieves true federal recognition. The case went to the North Carolina Court of Appeals and was remanded by unpublished opinion on 5 May 1998. The opinion notes that “Counsel for the parties have advised the court that this dispute is the first of its kind that they are aware of in the United States” (p. 3). The opinion then provides a brief factual and political history of the Tribe, with details on establishment of LRDA and its Articles of Incorporation and By-Laws. It also discusses LRDA's work on federal recognition, particularly establishing a Tribal Enrollment Office in 1980. A referendum was held by LRDA on January 31, 1984, to “give LRDA authorization to make decisions concerning Federal recognition and not any other matter concerning the Lumbee Tribe” (p. 21). 9.2% of enrolled members voted - less that the 10% goal the Tribal Enrollment Committee had set, and less that 3% of the 35,000 tribal members. There are also details on a grant proposal to the United Methodist Church, which was funded to organize a constitutional assembly and produce a draft of a tribal constitution, as the congressional bills for federal recognition seemed to require. The Constitutional Assembly wrote a draft constitution and held a referendum to adopt it between June 27 and July 2, 1994. The results were 8,010 in favor, 223 against, and 32 spoiled ballots. The LRDA tribal rolls listed over 40,000 members as required by the constitution. The officials were sworn into office on October 2, 1994. After a review of the legal issues involved, the memorandum then discusses each group's claims to be the lawful tribal government. It found that “the 1984 referendum did not grant LRDA the status of interim tribal government” (p. 68) and that LRDA has not “been the de facto government of the Lumbee people because it has sought and obtained federal funding for social and other purposes on their behalf.” (p. 80). The Constitutional Assembly was created in order to draft a proposed constitution which would be in place and ready for adoption and submission if the congressional bill for true federal recognition (at that time, HR 334) was passed. The Constitutional Assembly was told by its legal counsel that once federal recognition was granted, the draft constitution would be voted upon in a secretarial election administered by the Department of the Interior. Since LRDA was authorized by the tribe to represent it in matters regarding federal recognition, LRDA also was authorized to control the Constitutional Assembly and the draft constitution project. However, the Constitutional Assembly, some time between July 31 and October 23, 1993 declared itself independent of LRDA and, without LRDA's approval, drafted the constitution and put it to the vote of the Lumbee people. Since these actions were not mandated by the Lumbee people, the constitution “did not vest the Tribe [LTCI] with the mantle of the lawful government of the Lumbee Tribe or the Lumbee People” (p. 73). Moreover, the Constitutional Assembly did not follow its own written procedures because it did not obtain a vote of 2/3 majority on the draft constitution on March 24, 1994, and it did not obtain a vote of 20 delegates to approve a substantive change to the draft constitution on May 14, 1994. The opinion further stated that, because of the substantial number of tribal members who voted for the draft constitution, the LTCI must be viewed as “an organization that has standing as an organized body politic within the Lumbee Community among the Lumbee people and the Lumbee Tribe” (p. 76). The LRDA retains limited authority to act on behalf of the tribe in “terms of federal funding, recognition, administration of programs or representing the Lumbee Tribe on various Indian organizations...until such time as the Lumbee Tribe selects, by the vote of the Lumbee People, a tribal council or other form of government...through its own self-determination” (p. 81-82). Thus, in sum, the opinion concluded that neither LRDA nor LTCI is the tribe's lawful government. The tribe is without a standing government, except for the limited functions still retained by LRDA (see above). The Lumbee people have “the power and right to select the type and form of government they wish” (p. 85). The court will lend assistance to the tribe, with consent of the people and its parties, in conducting a referendum regarding governance of the tribe.