FEDERAL RECOGNITION OF NATIVE AMERICAN TRIBES IN THE UNITED STATES AND THE INTERNATIONAL RIGHT TO SELF-DETERMINATION: WHY CONGRESS SHOULD ...
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KRISTI FIX JAMES(DO NOT DELETE) 1/20/2023 1:26 PM
FEDERAL RECOGNITION OF NATIVE
AMERICAN TRIBES IN THE UNITED STATES
AND THE INTERNATIONAL RIGHT TO SELF-
DETERMINATION: WHY CONGRESS SHOULD
EXERCISE ITS CONSTITUTIONAL AUTHORITY
TO FEDERALLY RECOGNIZE THE LUMBEE
TRIBE
James Ennis Street*
Native American tribal nations covet state and federal tribal
recognition. The Lumbee Tribe is one of those tribes. Though North Carolina
has granted the Lumbee Tribe State recognition, the Lumbee Tribe’s 134-
year-long quest for Federal recognition has not been successful. Neither of
the two types of Federal Recognition – Administrative and Congressional –
have permitted the Lumbee Tribe to benefit alongside the other federally-
recognized Tribes from increased respect, sovereignty, and resources.
Instead, the Lumbee Tribe has been spun around by the regulatory
recognition rigmarole.
In this article, I first explore arguments for and against federal
recognition of the Lumbee Tribe. Next, I investigate the long-standing debate
between Congressional and Administrative recognition. Finally, against this
backdrop, I propose two solutions. First, Congress could independently
recognize the Lumbee Tribe. Or second, Congress or the BIA could modify
the federal recognition process to ensure that Native American tribes, like
the Lumbee Tribe, have a fair and just opportunity to petition for and receive
recognition.
I. INTRODUCTION ............................................................................................ 122
II. RELEVANT BACKGROUND ....................................................................... 124
A. Lumbee Tribe History and General Context ....................................... 124
B. Two Types of Tribal Recognition ....................................................... 126
1. State Recognition ......................................................................... 126
2. Federal Recognition ..................................................................... 127
C. The Lumbee’s Historic Fight For Federal Recognition ....................... 129
Copyright © 2022 James Ennis Street.
*
James Ennis Street is a J.D. Candidate at Duke University School of Law (expected 2023).
121KRISTI FIX JAMES (DO NOT DELETE) 1/20/2023 1:26 PM
122 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW [Vol 33:121
1. Congressional Failure to Recognize the Lumbee Tribe ............... 129
2. Administrative Failure to Recognize the Lumbee Tribe .............. 134
III. ARGUMENTS FOR AND AGAINST FEDERAL RECOGNITION OF THE
LUMBEE TRIBE ..................................................................................... 135
A. Opposition ........................................................................................... 135
B. Support ................................................................................................ 137
IV. THE DEBATE BETWEEN CONGRESSIONAL RECOGNITION AND
ADMINISTRATIVE RECOGNITION ................................................... 138
A. Arguments Made by Proponents of Administrative Recognition........ 138
B. Arguments Made by Proponents of Congressional Recognition ......... 142
V. CONGRESS SHOULD RECOGNIZE THE LUMBEE TRIBE AND THE
ADMINISTRATIVE PROCESS SHOULD BE MODIFIED .................. 146
A. Congress Should Independently Recognize the Lumbee Tribe ........... 146
B. Congress or the BIA Should Change BIA Procedures ........................ 147
VI. CONCLUSION.............................................................................................. 148
I. INTRODUCTION
Indigenous tribes and nations across the world have struggled to reclaim
sovereignty after countries colonized their territories. In what is now known
as the United States of America, the governments of France, Spain, Great
Britain, and the United States conquered Native American tribes and nations
and forced them into submissive and dependent positions. In exchange for
their lives, Native American tribes compromised with the United States
government to become dependent subnations. This compromise is ongoing,
both in the United States and abroad. The global community has developed
both a legal basis and a norm of indigenous tribal recognition. In the United
States, Congress and the Department of the Interior (“the Department”)
federally recognize tribes through the administrative and the congressional
recognition processes. Federal recognition provides critical financial
support, respect, and avenues for economic, cultural, and political self-
determination. Federal recognition also grants governmental sovereignty to
tribes, whereby they can establish legal systems, schools, and other key
government functions.
Unsurprisingly, the federal recognition that most tribes seek is hard to
obtain. In North Carolina, the group of Native Americans now called the
Lumbee Tribe has been petitioning unsuccessfully for federal recognition for
over 130 years. Though the State of North Carolina has recognized the Tribe,
neither Congress nor the Department has granted the Lumbee Tribe federal
recognition. At every turn, through both the administrative recognition
process and the congressional recognition process, the avenues toward
federal recognition have been barricaded.KRISTI FIX JAMES(DO NOT DELETE) 1/20/2023 1:26 PM
2022] MODIFICATION OF RECOGNITION PROCESS 123
The Bureau of Indian Affairs (BIA) in the Department manages the
administrative recognition process. Administrative recognition is guided by
the regulations the BIA has promulgated in 25 C.F.R. Part 83. These
regulations include criteria, listed in 25 C.F.R. § 83.11, that tribes must meet
for the BIA to act favorably on a tribe’s petition. The criteria require the
Lumbee to produce historical evidence that is unavailable to them, due
largely to wars, violent colonization, and the removal of Native Americans
from the East Coast. Even though the threshold of meeting these obligations
is relatively permissive under the BIA criteria, the Lumbee struggle still to
hurdle the high historical bar. Additionally, a congressional act that arguably
terminated the Lumbee Tribe’s eligibility for federal services and benefits
makes the Lumbee Tribe’s administrative recognition process more
complex, potentially extinguishing all Lumbee claims to full federal
recognition.
Because of these obstacles, the Lumbee Tribe and its allies have favored
congressional recognition. The Lumbee Tribe has been unsuccessfully
petitioning Congress for federal recognition since 1888 – for 134 years.
Opponents of congressional Lumbee recognition argue that the
administrative recognition process is the only legitimate recognition process.
On the other hand, the Lumbee and many Congresspeople argue that the
Constitutional and international legal authority to federally recognize tribes
remains with Congress and that as a matter of justice, it should recognize the
Lumbee no later than now.
Congress has three options. First, it can pass two bills currently
pending, H.R. 2758 and S. 1364, which grant full federal recognition to the
Lumbee Tribe through the congressional recognition process. Second, it can
reject these bills, amend 25 C.F.R. § 83.4 to enable certain tribes to re-
petition for administrative recognition, and require the Lumbee to re-
petition. Or third, it can adopt the second option and additionally modify the
most burdensome criteria established in 25 C.F.R. § 83.11(a), (b), (c), and
modify either § 83.11(g) or the Lumbee Act, to ensure that the Lumbee will
be recognized through the administrative recognition process. Because these
options are not mutually exclusive, Congress should adopt the first and third
options: Congress should federally recognize the Lumbee as a matter of
justice and amend the recognition process to ensure that no other tribe must
suffer what some US Representatives have called the “trail of years.”
This paper will proceed with an exploration of Lumbee tribal history,
the levels of tribal recognition, and the Lumbee Tribe’s history in pursuing
federal recognition. The paper will then detail general arguments in favor of
and against Lumbee recognition, including input from the international
community, and then explore arguments in favor of and against theKRISTI FIX JAMES (DO NOT DELETE) 1/20/2023 1:26 PM
124 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW [Vol 33:121
administrative and congressional recognition processes. The paper will end
by asserting normative arguments and maintaining that Congress should
recognize the Lumbee Tribe and modify the administrative recognition
process.
II. RELEVANT BACKGROUND
A. Lumbee Tribe History and General Context
The Lumbee Tribe’s 55,000 members live mostly in Robeson,
Cumberland, Hoke, and Scotland counties in North Carolina.1 “The tribe is
descendent aboriginally from the Cheraw and other Sioux speaking tribes in
the area, and is currently named for the Lumbee River, which bisects the
Indian community.”2 Following Indian wars, colonization, and epidemics of
smallpox, malaria, and influenza, the Lumbee River and its nearby swamp
lands provided protection and refuge for uprooted Indians of many tribes,
creating a multitribal Indian community.3
The Lumbee Tribe has taken on different names throughout its history.
In 1885, State Senator Hamilton McMillan sponsored state legislation to
recognize the group as “Croatan.”4 Though the bill passed, as Senator
McMillan himself acknowledged in his later book, The Lost Colony Found,
the Indians rejected this name. According to Senator McMillan, upon
reading the 1885 Act recognizing the Tribe as Croatan, “an intelligent Indian
remarked that he had always heard that they were called Hatteras Indians.”5
In 1911, after the name “Croatan” took on derogatory connotations, these
Indians called themselves the “Indians of Robeson County.”6 Just two years
later, state legislation was introduced to change the Tribe’s name to the
1. Lumbee Recognition, THE LUMBEE TRIBE OF NORTH CAROLINA,
https://www.lumbeetribe.com/history—culture (last visited Oct. 23, 2022).
2. 138 CONG. REC. 3886 (1992) (statement of Sen. Inouye).
3. Origins and Migrations, LUMBEE TRIBE OF N.C.,
https://www.lumbeetribe.com/_files/ugd/1b5843_444a9c2bf112479eb85987c0f8823fb4.pdf. See also
KAREN I. BLU, THE LUMBEE PROBLEM: THE MAKING OF AN AMERICAN INDIAN PEOPLE 40–43
(Cambridge Univ. Press ed. 1980). See generally MALINDA MAYNOR LOWERY, LUMBEE INDIANS IN THE
JIM CROW SOUTH: RACE, IDENTITY, AND THE MAKING OF A NATION (2010) (discussing the history of the
Lumbee Tribe).
4. Naming the People, LUMBEE TRIBE OF N.C.,
https://www.lumbeetribe.com/_files/ugd/1b5843_2e4184cc8db14f6aa7e3a9265f44ba0b.pdf; Letter
from Orlando M. McPherson, Secretary of the Interior, in response to a Senate Resolution of June 30,
1914, a Report on the Condition and Tribal Rights of the Indians of Robeson and Adjoining Counties of
North Carolina, 40 (Jan. 13, 1915) (on file with the Academic Affairs Library of the University of North
Carolina at Chapel Hill); The Croatan were a Native American ethnic group that lived in Coastal North
Carolina.
5. HAMILTON MCMILLAN, SIR WALTER RALEIGH’S LOST COLONY 20 (photo. reprt. 2017) (1907).
6. Naming the People, supra note 4.KRISTI FIX JAMES(DO NOT DELETE) 1/20/2023 1:26 PM
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“Cherokee Indians of Robeson County.”7 North Carolina Governor Angus
McLean, against the opposition of the Lumbee, concluded that the Lumbee
were primarily of Cherokee descent.8 It was only in 1953 that the Tribe was
able to name itself and chose “Lumbee.”9
Though the names of the people changed, the Tribe remained a single
Indian community. Newspapers have recognized these Indians as a distinct
population since the 1700s.10 The Tribe is marked by “a distinct appearance
and manner of speech and the frequent recurrence among them of family
names . . . [also] found on the roster of the earliest English settlements.”11
The history of the United States and its legal systems, however, incentivized
the Lumbee to “bec[o]me quiet about their Indian identity” to avoid
removal.12
Concurrent legal regimes also “complicated the relationship between
Indians and blacks.”13 As Jim Crow was at its apogee, “[t]he end of the
nineteenth century and beginning of the twentieth were one of the most
coercive and racist periods in Indian law,” involving land theft and the
creation of federal boarding schools designed to destroy tribal culture.14 The
Lumbee Tribe was particularly impacted by these dynamics, as its population
included “free and runaway Africans and Scotch Colonists.”15 North
Carolina labeled the Tribe “the mulattoes of Robeson County” and enacted
laws restricting the rights of “free persons of color” to target the Tribe.16
Faced with the threat of miscegenation, segregation, and intense
pressure to assimilate, the Lumbee Tribe sought to maintain its identity,
engaging in anti-Black behavior in the process.17 The Lumbee decided to
build their own schools to avoid sending their children to Black schools.18 In
1887, State Senator McMillan sponsored legislation for a separate school for
the Indians.19 The name of the school, like the name of the Indian people
7. Id.
8. Id.; Harold W. Elliott, The Colorblind Turn in Indian Country: Lumbee Indians, Civil Rights,
and Tribal State Formation 142 (2019) (Ph.D. dissertation, University of Michigan).
9. Naming the People, supra note 4; see also The Lumbee Act of 1956, Pub. L. No. 570, 70 Stat.
254 (1956) (“The Lumbee Act”).
10. 137 CONG. REC. at 24204 (1991).
11. 139 CONG. REC. at 26544 (1993) (statement of Rep. Thomas).
12. 137 CONG. REC. at 24204 (1991).
13. Bethany Berger, Red: Racism and the American Indian, 56 UCLA L. REV. 591, 595 (2009).
14. Id. at 637.
15. Id. at 625.
16. Id.
17. Id.
18. Education, LUMBEE TRIBE OF N.C.,
https://www.lumbeetribe.com/_files/ugd/1b5843_a386bd5064fb4194a65655c34fd3d5bf.pdf.
19. History, UNIVERSITY OF NORTH CAROLINA PEMBROKE, https://www.uncp.edu/about/history.KRISTI FIX JAMES (DO NOT DELETE) 1/20/2023 1:26 PM
126 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW [Vol 33:121
who went to the school, changed often. At its inception, the school was called
the “Croatan Normal School.”20 In 1911, state officials changed the school’s
name to “Indian Normal School of Robeson County,” before changing it
again in 1913 to “Cherokee Indian Normal School of Robeson County.”21
The school then became “Pembroke State College for Indians” in 1941.22
Just eight years later, in 1949, the N.C. General Assembly renamed the
school “Pembroke State College,” which would only last until 1969, when it
became “Pembroke State University.”23 The school took its current name,
the “University of North Carolina at Pembroke,” in 1996.24
B. Two Types of Tribal Recognition
On the strength of this history, the Tribe has petitioned for both state
and federal recognition. The scale of the benefits offered through state or
federal recognition is markedly different. Because federal recognition
provides tribes with the most resources, some tribes use state recognition as
a steppingstone towards that end, while also appreciating the support from
individual states.
1. State Recognition
There are four main methods of obtaining state recognition: state law
recognition, administrative recognition, legislative recognition, and
executive recognition.25 North Carolina, which has “one of the nation’s most
sophisticated regulatory schemes for tribal-state relations,”26 has followed
the state law recognition mechanism.27 This mechanism “unquestionably
binds [North Carolina], constitutes a political act, [and] establish[es] a
government-to-government relationship with [the Lumbee] [T]ribe through
the force of law.”28
In 1885, on petition from the Lumbee Tribe, North Carolina formally
recognized the Lumbee Tribe as the Croatan Tribe.29 In 1953, the General
Assembly of North Carolina updated their recognition of the Lumbee Tribe,
20. Id.
21. Id.
22. Id.
23. Id.
24. Id.
25. Alexa Koenig & Jonathan Stein, Federalism and the State Recognition of Native American
Tribes: A Survey of State-Recognized Tribes and State Recognition Processes Across the United States,
48 SANTA CLARA L. REV. 79, 102–08 (2008).
26. Id. at 132; see also N.C. GEN. STAT. § 71A-7.1 (2005).
27. Koenig & Stein, supra note 25, 103.
28. Id.
29. S. REP. NO. 111-116, at 8 (2010).KRISTI FIX JAMES(DO NOT DELETE) 1/20/2023 1:26 PM
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officially designating the Lumbee Tribe as the “Lumbee Indians of North
Carolina.”30 State recognition, like federal recognition, provides tribes with
financial resources, sovereign respect, and avenues for economic, political,
and cultural self-determination. However, the state benefits are provided on
a smaller scale than federal benefits. Consequently, many tribes petition the
federal government for recognition to gain access to more political,
historical, and legal legitimacy, as well as for increased access to government
funding.
2. Federal Recognition
“[A]ll three branches of the United States Government can recognize
Indian nations.”31 Congress has the authority to legislatively recognize a
tribe under the Indian Commerce Clause and Congress’s plenary power over
Indians.32 The Executive Branch can administratively recognize a tribe
through the BIA’s Office of Federal Acknowledgement, which is a part of
the Department of the Interior.33 And courts can recognize tribes through
decisions on adjudicated questions under federal statutes, though judicial
recognition is not always respected by the Executive and Legislative
branches.34 “[W]hether a group constitutes a ‘tribe’ is a matter that is
ordinarily committed to the discretion of Congress and the Executive
Branch, and courts will defer to their judgment.”35
Senator Schatz, the Chairman of the Senate Committee on Indian
Affairs, noted during the 2021 hearings on the new Lumbee Recognition
Acts that Congress is the branch “in possession of the Constitutional plenary
authority of tribal . . . recognition.”36 He also recognized that congressional
recognition “authority is also . . . in an attenuated way, delegated to the
Departments but . . . [Congress] has a perfect right to [recognize tribes], and
30. N.C. GEN. STAT. § 71A-3.
31. Kirsten M. Carlson, Congress, Tribal Recognition, and Legislative-Administrative Multiplicity,
91 IND. L. J. 955, 965 (2016).
32. Koenig & Stein, supra note 25, at 98 (citing COHEN’S HANDBOOK OF FEDERAL INDIAN LAW §
3.02[4] at 140–41, 159 (2005)).
33. See Procedures for Federal Acknowledgement of Indian Tribes, 25 C.F.R. § 83 (2015).
34. Carlson, supra note 31, at 52; see Koenig & Stein, supra note 25, at 98; see generally New York
v. Shinnecock Indian Nation, 280 F.Supp. 2d 1 (E.D.N.Y. 2003) (stating that the Judicial Branch should
defer to Congress’s plenary power over Indian matters and to the Executive Branch’s expertise in Indian
affairs).
35. Maynor v. United States, No. CIV. 03CV1559(SBC), 2005 WL 1902907, at *2 (D.D.C. July
11, 2005) (quoting Cherokee Nation of Oklahoma v. Babbitt, 117 F.3d 1489, 1496 (D.C. Cir. 1997)).
36. Lumbee Tribe of North Carolina Recognition Act: Hearings on S. 1364 Before the S. Comm. on
Indian Affs., 117th Cong. (2021) (statement of Sen. Brian Schatz, Chairman, S. Comm. On Indian Aff.),
at 1:14:00, https://www.indian.senate.gov/hearing/business-meeting-consider-s-648-legislative-hearing-
receive-testimony-s-1364-hr-1975-hr-2088 [hereinafter Senate Lumbee Recognition Hearings].KRISTI FIX JAMES (DO NOT DELETE) 1/20/2023 1:26 PM
128 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW [Vol 33:121
in fact it is the more common way, historically, of achieving [tribal]
recognition.”37
It is through this congressional delegation to the Executive Branch that,
in 1978, President Jimmy Carter’s administration created a Federal
Recognition Process with Indian tribes.38 For the BIA to recognize a tribe, a
tribe must fulfill the seven requirements set out in 25 C.F.R. § 83.11(a)–(g):
(a) The petitioner has been identified 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 the present.
(d) A copy of the group’s present governing document including its
membership criteria.
(e) The petitioner’s membership consists of individuals who descend from
a historical Indian tribe or from historical Indian 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
Indian tribe.
(g) Neither the petitioner nor its members are the subject of congressional
legislation that has expressly terminated or forbidden the Federal
relationship.39
“Procedurally, the burden of proof is on the petitioning tribe, which
presents evidence to rebut a presumption against a tribe being Indian.”40 The
Department considers each criterion met if the tribe “establishes a reasonable
likelihood of the validity of the facts relating to that criterion[;]”41 conclusive
proof is not required.42 When evaluating a petition, the Department will take
into account “historical situations and time periods for which evidence is
demonstrably limited or not available,”43 and “limitations inherent in
demonstrating historical existence of community and political influence or
authority.”44
37. Id.
38. Procedures for Establishing that an American Indian Group Exists as an Indian Tribe, 43 Fed.
Reg. 39361 (proposed Aug. 24, 1978) (to be codified at 25 C.F.R. § 54); 25 C.F.R. § 83.
39. Cindy D. Padget, The Lost Indians of the Lost Colony: A Critical Legal Study of the Lumbee
Indians of North Carolina, 21 AM. INDIAN. L. REV. 391, 406 (1997).
40. Id. at 407.
41. 25 C.F.R. § 83.10(a) (2022).
42. Id. § 83.10(a)(1).
43. Id. § 83.10(b)(2).
44. Id. § 83.10(b)(3).KRISTI FIX JAMES(DO NOT DELETE) 1/20/2023 1:26 PM
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“Absent federal recognition, tribes do not enjoy the same status, rights,
and privileges accorded federally recognized tribes.”45 ”Federally
recognized tribes are ‘acknowledged to have the immunities and privileges
available to [them] by virtue of their government-to-government relationship
with the United States as well as the responsibilities, powers, limitations and
obligations of such tribes.’”46 As Representative Thomas noted,
“‘Recognized’ is more than a simple adjective; it is a legal term of art. . . .
[I]t . . . imposes on the Government a fiduciary trust relationship [between
the United States and] the tribe.”47 “Special benefits of federal recognition
of tribal sovereign status include the provision of health care for individual
tribe members, right to operate gaming enterprises, and the ability to convert
fee land to trust status, among other things.”48 North Carolina Senator
Richard Burr, in a November 17, 2021 hearing held by the Senate Committee
on Indian Affairs, testified that “federal recognition will help the Lumbee
people not only improve their economy, but enhance their health care
systems and schools.”49
Federal recognition also provides tribes with the ability to exercise
sovereignty to protect their culture, religion, and identity,50 and places a tribe
on equal standing in the community of Indian tribes.51 As Representative
Taylor of North Carolina said, federal recognition means a tribe “takes on
sovereignty or at least quasi-sovereignty in the eyes of the world. It means
one has the power of taxation. It means one has the power to establish a
judiciary, a police force, the right to treatment as a sovereign nation.”52
C. The Lumbee’s Historic Fight For Federal Recognition
1. Congressional Failure to Recognize the Lumbee Tribe
In 1888, three years after North Carolina recognized the Lumbee Tribe,
the Lumbee Tribe began seeking federal recognition.53 Fifty-four Lumbee
45. Kahawaiolaa v. Norton, 386 F.3d 1271, 1273 n.1 (9th Cir. 2004); see 25 C.F.R. § 83.2.
46. Lorinda Riley, When A Tribal Entity Becomes A Nation: The Role of Politics in the Shifting
Federal Recognition Regulations, 39 AM. INDIAN. L. REV. 451, 451 (2016) (alteration in original)
(quoting Notice of Indian Entities Recognized and Eligible to Receive Services, 79 Fed. Reg. 4748 (Jan.
29, 2014)).
47. H.R. Rep. No. 103-781, at 2 (1994); 139 CONG. REC. 8612 (1993) (statement of Rep. Thomas).
48. Riley, supra note 46, at 451.
49. Burr, Tillis reintroduce Lumbee Federal Recognition bill, NORTH STATE JOURNAL (Apr. 29,
2021), https://nsjonline.com/article/2021/04/burr-tillis-reintroduce-lumbee-federal-recognition-bill/ (last
visited Oct. 25, 2022).
50. 138 CONG. REC. 3886 (1992) (statement of Sen. Inouye).
51. Id.
52. 137 CONG. REC. 24200 (1991) (statement of Rep. Taylor).
53. S. Rep. No. 111-116, at 1–2 (2010).KRISTI FIX JAMES (DO NOT DELETE) 1/20/2023 1:26 PM
130 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW [Vol 33:121
tribal leaders petitioned Congress for “aid . . . to be used for the sole and
exclusive purpose of assisting [the Lumbee Tribe] and other Croatans . . . to
educate their children and fit them for the duties of American citizenship.”54
The impetus for the federal recognition was a desire to “seek educational
assistance” to “compensate for the state’s unequal funding of the Normal
School.”55 After the House Committee on Indian Affairs forwarded the
Tribe’s petition to the Department of the Interior, the Commissioner of
Indian Affairs declined to recognize the Tribe and cited financial concerns:
While I regret exceedingly that the provisions made by the State of North
Carolina are entirely inadequate, I find it quite impractical to render any
assistance at this time. The government is responsible for the education of
something like 36,000 Indian children and has provision for less than half
that number. 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.56
In 1924, Representative Lyon introduced H.R. 8083 in Congress to
federally recognize the Tribe as the Cherokee Indians of Robeson and
Adjoining Counties.57 Although the Secretary of the Interior recommended
passage of H.R. 8083, the bill failed after Charles H. Burke, the
Commissioner of Indian Affairs, opposed the legislation.58 In 1932, North
Carolina Senator Josiah W. Bailey introduced a bill that would have federally
recognized the Robeson County Indians as Cherokees.59 Notably, the bill
denied the Lumbee any tribal rights or monies due to the Eastern Band of
Cherokee or the Western Cherokee in Oklahoma.60 C.J. Rhoads, the
Commissioner of Indian Affairs, gave an unfavorable report on the bill and
left the question of the Lumbee’s specific tribal affiliation to Congress.61
This bill likewise died.
After years of the Lumbee Tribe and its allies petitioning Congress,62
54. O.M. McPherson Report on Condition and Tribal Rights of the Indians of Robeson, Doc. No.
677, at 36 (2d Sess. 1914).
55. MALINDA MAYNOR LOWERY, LUMBEE INDIANS IN THE JIM CROW SOUTH: RACE, IDENTITY, &
THE MAKING OF A NATION 42 (Univ. of N.C. Press: Chapel Hill, 2010).
56. S. Rep. No. 108-213, at 2 (2003) (quoting O.M. McPherson Report on Condition and Tribal
Rights of the Indians of Robeson, Doc. No. 677, at 40 (2d Sess. 1914)).
57. To Provide for the Recognition of the Lumbee Tribe of North Carolina: Hearing on H.R. 898
Before the H. Comm. on Resources, 108th Cong. 63 (2004) (statement of Jack Campisi).
58. Id.
59. Id. at 71 (statement of Arlinda Locklear, Attorney for the Lumbee Tribe of North Carolina).
60. Id.
61. 72 CONG. REC. 3641 (1933) (statement of C.J. Rhoads, Commissioner of Indian Affairs).
62. See Federal Recognition: Lumbee Tribe’s One Hundred Twenty-Two Year Quest, LUMBEE
SOVEREIGNTY COALITION,
https://lumbeesovereigntycoalition.files.wordpress.com/2010/04/lumbee_recognition_timeline4.pdf
(last visited Sept. 15, 2022).KRISTI FIX JAMES(DO NOT DELETE) 1/20/2023 1:26 PM
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Congress partially recognized the Lumbee Tribe in 1956,63 after
Congressman Carlyle introduced the bill to recognize the “Lumbee Indians
of North Carolina” in 1955.64 This partial recognition granted the Lumbee
Tribe only the power to name itself – it failed to provide any of the resources
or sovereignty that full federal recognition provides. It is no surprise, then,
that when Representative Wayne N. Aspinall asked Representative Carlyle
about whether the bill would extend federal funding and benefits to the
Lumbee Tribe, Carlyle responded no and that “[t]heir [only] purpose in this
legislation is to have a name that they think is appropriate to their group.”65
Upon introduction, the Department objected to this bill, saying:
We are . . . unable to recommend that the Congress take any
action which might ultimately result in the imposition of
additional obligations on the Federal Government or in placing
additional persons of Indian blood under the jurisdiction of this
Department. The persons who constitute this group of Indians
have been recognized and designated as Indians by the State
legislature. If they are not completely satisfied with such
recognition, they, as citizens of the State, may petition the
legislature to amend or otherwise to change that recognition . . ..
If your committee should recommend the enactment of the bill, it
should be amended to indicate clearly that it does not make these
persons eligible for services provided through the Bureau of
Indian Affairs to other Indians.66
The Senate heeded the Department’s recommendation and added a
caveat that denied the Lumbee Tribe benefits that every other Federally
recognized tribe receives.67 The Lumbee Recognition Act (the Lumbee Act)
reads:
“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
63. The Lumbee Act, at 254–55.
64. Id. at 255.
65. 139 CONG. REC. 8616 (1993) (statement of Rep. Richardson) (quoting Rep. Carlyle); see
Maynor v. Morton, 510 F.2d 1254, 1259 (D.C. Cir. 1975) (“The whole purpose of the [final] clause [of
Section 1] . . . was simply to make sure that a simple statute granting the name ‘Lumbee Indian’ to a
group of Indians, which hitherto had not had such designation legally, was not used in and of itself to
acquire benefits from the United States Government.”).
66. Process of Federal Recognition of Indian Tribes: Hearing Before the S. Comm. on Indian
Affairs, 110th Cong. 8 (2007) (statement of Hon. James Ernst Goins, Chairman, Lumbee Tribe of North
Carolina).
67. William Trapani, Re/Cognizing Native American Sovereignty in An Age of Manifest Manners,
3 J.L. SOC’Y 1, 7–8 (2002) (“They would not enjoy the standard federal relationship conferred upon other
recognized tribes, they would not receive any of the federal aid or assistance packages that generally
follow recognition, and they would not garner the same degree of legitimacy and social status among
Native Americans that other recognized tribes enjoy.”).KRISTI FIX JAMES (DO NOT DELETE) 1/20/2023 1:26 PM
132 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW [Vol 33:121
because of their status as Indians shall be applicable to the Lumbee
Indians.”68
Consequently, though Congress recognized the Lumbee Tribe as a
distinct Indian tribe, it denied them full recognition as a tribal nation.69
In 1988, the Lumbee Tribe picked up the mantle for congressional
action anew. The Lumbee Tribe was unsatisfied with partial recognition.
Congressman Charles Rose and Senator James Terry Sanford introduced
legislation that would provide full federal recognition in the House70 and the
Senate.71 The Senate Committee on Indian Affairs requested that the
Congressional Research Service (CRS) review the history and various
interpretations of the 1956 Lumbee Act.72 The CRS Report concluded that:
“[w]ithout a court decision squarely confronting the issue of whether the
1956 statute confers federal recognition on the Lumbee, there is insufficient
documentation to determine if the statute effects federal recognition of the
Lumbees.” However, it noted that the 1956 Lumbee Act is “a step toward
recognition and would be a factor that either the Department of the Interior
or a court would have to weigh along with others to determine whether the
Lumbees are entitled to federal recognition.”73 The 1988 bills ultimately
died.74
In 1991, a House bill to grant the Lumbee Tribe full federal recognition
was passed by roll call vote.75 The Senate Committee on Indian Affairs
favorably reported the same bill to the entire Senate.76 The bill failed a
cloture motion and died in the Senate.77 Representative Rose, in 1993 and
1996, introduced two bills for federal recognition in the House, both of which
died in the House.7879 In 2003,80 2005,81 and 2007,82 North Carolina
68. The Lumbee Act, at 255.
69. Trapani, supra note 67, at 7 (“[T]he Lumbee were acknowledged as Indians but barred from
seeking federal recognition as an officially ‘sanctioned’ tribe.”).
70. H.R. 5042, 100th Cong. (1988).
71. S. 2672, 100th Cong. (1988).
72. Lumbee Recognition Act and Thomasina E. Jordan Tribes of Virginia Federal Recognition Act
of 2009: Hearing on H.R. 31 and H.R. 1385 Before the H. Comm. on Natural Resources, 111th Cong. 83
(2009) (statement of Arlinda Locklear, Attorney for the Lumbee Tribe of North Carolina).
73. Id.
74. Id.
75. H.R. 1426, 102d Cong. (1991).
76. S. 1036, 102d Cong. (1991).
77. H.R. 1426, 102d Cong., Roll Vote No. 35 (1991),
https://www.senate.gov/legislative/LIS/roll_call_votes/vote1022/vote_102_2_00035.htm.
78. H.R. 334, 103d Cong. (1993).
79. H.R. 3810, 104th Cong. (1996).
80. H.R. 898, 108th Cong. (2003); S. 420, 108th Cong. (2003).
81. H.R. 21, 109th Cong. (2005); S. 660, 109th Cong. (2005).
82. H.R. 65, 110th Cong. (2007); S. 333, 110th Cong. (2007).KRISTI FIX JAMES(DO NOT DELETE) 1/20/2023 1:26 PM
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Representatives again introduced bills for full federal recognition for the
Lumbee Tribe. Like the other bills, these died, due likely to political and
financial opposition. In 2007, the House and Senate adopted an amendment
to a bill for federal recognition that prohibited the Lumbee Tribe from
operating gaming activities, but this attempt to mitigate political opposition
to the recognition was not enough for it to survive the congressional
process.83 The 2009 version of the bill retained the gaming prohibition but
died nonetheless.84 Bills in 2010, 2011, 2012, 2013, 2015, 2016, 2017, 2019,
and 2020 were also unsuccessful,85 despite support from President Joe
Biden,86 and former Presidents Donald Trump87 and Barack Obama.88
Most recently, on April 22, 2021, Democrat Representatives G.K.
Butterfield, David Price, and Deborah Ross joined Republicans Dan Bishop,
Richard Hudson, Tedd Budd, David Rouzer, and Gregory Murphy to
introduce bipartisan legislation in the House to recognize the Lumbee
Tribe.89 Senators Burr and Tillis, two Republican North Carolina Senators,
have championed the bill in the Senate.90 In all, 29 Lumbee recognition bills
have been introduced in Congress to recognize the Lumbee Tribe – 15 by
83. H.R. Rep. No. 110-164, at 2 (2007) (“The tribe may not conduct gaming activities as a matter
of claimed inherent
authority or under the authority of any Federal law . . . or under any regulations thereunder promulgated
by the Secretary or the National Indian Gaming Commission.”).
84. H.R. 31, 111th Cong. (2009).
85. S. 1735, 111th Cong. (2010); H.R. 27, 112th Cong. (2011); S. 1218, 112th Cong. (2012); H.R.
1803, 113th Cong. (2013); S. 1132, 113th Cong. (2013); H.R. 184, 114th Cong. (2015); S. 2285, 114th
Cong. (2015); H.R. 3650, 115th Cong. (2017); H.R. 2352, 115th Cong. (2017); S. 1047, 115th Cong.
(2017); S. 1368, 116th Cong. (2019); H.R. 1964, 116th Cong. (2020).
86. Lumbee Tribe in NC gets Biden support for federal recognition, NEWS & OBSERVER (Oct. 8,
2020), https://www.newsobserver.com/news/politics-government/election/article246311535.html. See
also Charles Duncan, Sen. Kamala Harris Says Biden Pledges To Support Lumbee Tribe Recognition,
SPECTRUM LOCAL NEWS (Oct. 28, 2020),
https://spectrumlocalnews.com/nc/charlotte/politics/2020/10/28/politics (“‘For 132 years, your tribe has
fought for the recognition you have long deserved and I am humbled by your fight, your tenacity and
your long struggle,’ Harris said in a video released Wednesday.”).
87. Trump adds support to Lumbee Tribe federal recognition bill, A.P. NEWS (Oct. 22, 2020),
https://apnews.com/article/election-2020-donald-trump-bills-north-carolina-
0985d74c0d2a4a9b055d44718dec9314 (“‘For more than a century, the Lumbee Tribe of North Carolina
has sought federal recognition, but has been met with indifference and red tape,’ Trump said in a White
House statement released Wednesday announcing his support for the bill. ‘Lumbee Nation is forgotten
no more!’”).
88. Michael Futch, ‘It’s been a long time coming’: Lumbees closing in on full federal recognition,
THE FAYETTEVILLE OBSERVER (Dec. 2, 2020),
https://www.fayobserver.com/story/news/2020/12/02/lumbee-tribe-closing-full-federal-
recognition/6345662002/.
89. H.R. 2758, 117th Cong. (2021).
90. S. 1364, 117th Cong. (2021).KRISTI FIX JAMES (DO NOT DELETE) 1/20/2023 1:26 PM
134 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW [Vol 33:121
Democrats and 14 by Republicans.91 None have granted the Lumbee Tribe
full recognition.
2. Administrative Failure to Recognize the Lumbee Tribe
After the Executive Branch created the administrative acknowledgment
process in 1978, the Lumbee Tribe began petitioning the BIA for full federal
recognition. In 1985, the BIA issued a “Final Determination that the Lumbee
Nation of North Carolina and America Inc. Does Not Exist as an Indian
Tribe.”92 According to John Fritz, the Deputy Assistant Secretary of Indian
Affairs, the Lumbee Tribe “does not satisfy five of the seven mandatory
criteria set forth in 25 C.F.R. § 83.[11] and, therefore, does not meet the
requirements necessary for a government-to-government relationship with
the United States.”93 The BIA also noted that “[t]he United Lumbee Nation
of North Carolina and America, Inc. is a group which can be characterized
as a voluntary organization” and that “[t]he group has accepted as members
individuals who do not meet the blood degree requirement.”94 The Assistant
Secretary also determined that the Bureau’s determination was final “due to
the group’s mixed and uncertain Indian ancestry, the geographical dispersion
of its membership, and the group’s lack of inherent social and political
cohesion and continuity.”95
In 1987, the Associate Solicitor for Indian Affairs, William Lavell,
further concluded in a formal opinion that the Lumbee Act of 1956 precludes
the Tribe from participating in the Department’s acknowledgment process
for Indian tribes.96 Lavell concluded that the Lumbee Act “is legislation
terminating or forbidding the Federal relationship within the meaning of 25
C.F.R. §§ 83.3(e) and 83.7(g) [now §§ 83.4(c) and 83.11(g)] and that,
therefore, [the Assistant Secretary was] precluded from considering the
application of the Lumbees for recognition.”97
In 2016, the Department, led by Solicitor Hilary Tompkins,
reconsidered whether the Lumbee Act precluded the Department from
recognizing the Lumbee Tribe under 25 C.F.R. § 83.11(g).98 Tompkins
91. Senate Lumbee Recognition Hearings, supra note 36, (statement of Sen. Richard Burr), at 26:48.
92. Padget, supra note 39, at 414.
93. Id.
94. Id.
95. Id.
96. Memorandum from William G. Lavell, Associate Solicitor, Indian Affairs (1988) [hereinafter
1988 Assoc. Solic. Mem.].
97. Memorandum from William G. Lavell, Associate Solicitor, Indian Affairs, at 5 (Oct. 23, 1989)
[hereinafter 1989 Assoc. Solic. Mem.].
98. Memorandum from Hilary Tompkins, Solicitor, Officer of the Solicitor, U.S. Dep’t of the
Interior, Reconsideration of the Lumbee Act of 1956, at 1 (Dec. 22, 2016).KRISTI FIX JAMES(DO NOT DELETE) 1/20/2023 1:26 PM
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concluded that based on “the Act’s text, its legislative history, the case law
concerning the Act, the Department’s varying interpretations of the Act, and
decisions made pursuant to the relevant provisions of Part 83,” “the Lumbee
Act does not terminate or forbid the Federal relationship and, therefore, does
not bar the Department from recognizing the Lumbee Indians by application
of the Part 83 acknowledgment process.”99 The Department did not assess
how § 83.4(d), which denies acknowledgment to “[a]n entity that previously
petitioned and was denied Federal acknowledgment under these regulations
or under previous regulations in part 83 of this title[,]” would apply to any
future administrative recognition petition by the Lumbee Tribe.
III. ARGUMENTS FOR AND AGAINST FEDERAL RECOGNITION OF
THE LUMBEE TRIBE
History and current tribal practices prove that the Lumbee Tribe is an
authentic Indian tribe and thus should be fully recognized by the United
States Federal government. Concerns about funding are not sufficient to
justify prohibiting federal recognition, especially when the Lumbee Tribe is
deserving of the funding and could use it to improve its community.
A. Opposition
The strongest opposition to Lumbee federal recognition comes from
already-recognized tribes, who often argue that the Lumbee Tribe is not an
authentic tribe but instead are appropriating Native American culture.
Another insidious, yet realistic, concern may also be driving opposition: that
federally recognizing the Lumbee would significantly threaten federal tribal
funding for already recognized tribes.
The Eastern Band of Cherokee Indians (EBCI), located in Western
North Carolina, is extremely vocal in its opposition to granting the Lumbee
tribal recognition. Richard Sneed, the Chief of the EBCI, posits that the
Lumbee are not an authentic Native American tribe and do not have a
longstanding unique history.100 The administrative recognition process seeks
to establish authenticity, but Chief Sneed’s position seems to go further than
the recognition process itself requires. Chief Sneed and others are opposing
Lumbee recognition out of long-established desires to protect their
authenticity and oppose appropriation. Chief Sneed has argued that “[t]he
99. Id.
100. Holly Kays, N.C. Senator, Cherokee chief spar in opposing op-eds, SMOKY MOUNTAIN NEWS
(June 26, 2019), https://smokymountainnews.com/archives/item/27167-n-c-senator-cherokee-chief-spar-
in-opposing-op-eds.KRISTI FIX JAMES (DO NOT DELETE) 1/20/2023 1:26 PM
136 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW [Vol 33:121
Lumbee . . . have tried to appropriate our Cherokee culture and identity, and
the Eastern Band and other established tribes have opposed this
appropriation.”101 This argument is not new. Cherokee Vice Chief Gerard
Parker, in opposition to Lumbee recognition in the past, asked, “[i]f the
Lumbees are Indians, where is the culture, the language?”102
In addition to these cultural and historical challenges, detractors base
their opposition on financial grounds, including taxpayer concerns, splitting
already limited BIA tribal funding, and protecting Tribal businesses.
Taxpayers and their representatives are concerned about the increased tax
obligation that federal recognition would impose on their bank accounts.
Based on CBO estimates, “providing services to the [Lumbee] tribe and its
members as a result of federal recognition could cost the federal government
$110 million to $120 million annually.”103 Representative Inouye suspected
that
[T]he [Presidential] administration continues to object [to Lumbee
recognition] because they consider it a matter of money. . .. The Lumbee
Tribe is the largest tribe seeking Federal recognition, and will, when
recognized, be the third largest Indian tribe in the Nation. In my view that
is why recognition of the tribe has been so difficult to accomplish.104
It appears that taxpayer concerns drive opposition, but not all
representatives agree that taxpayer funding is a concern. Representative
Rhodes, for instance, responded that he “personally, rejected any
consideration of size and cost” when voting on Federal recognition.105
Another funding concern – raised by Congresspeople rather than tribes
– is that if the Lumbee Tribe is recognized, the federally recognized tribes
will have to split the already limited BIA funding with another tribe. The
Lumbee are 40,000 members strong, which means that their recognition may
result in a financial strain on BIA funding. Senator Burr, for example,
characterized the EBCI’s rejection of Lumbee recognition as fear of “a threat
to [the EBCI’s] federal benefits.”106 Representative Rhodes, however,
disclaimed any “aware[ness] of any Indian tribe or organization . . . rais[ing
funding] as a concern.”107
101. Id.
102. Padget, supra note 39, at 402 (quoting Lumbees Face uphill Battle Proving Identity,
GREENSBORO NEWS & REC. (June 10, 1994), https://greensboro.com/lumbees-face-uphill-battle-proving-
identity/article_0620d990-344a-5149-9773-4857dc931f03.html).
103. 138 CONG. REC. 3888 (1992) (statement of Sen. Terry Sanford).
104. Id. at 3886 (statement of Sen. Daniel Inouye).
105. 137 CONG. REC. 24199 (1991) (statement of Rep. John Rhodes).
106. Cherokee bullying other tribes, including Lumbee, THE ROBESONIAN (June 19, 2019),
https://www.robesonian.com/opinion/124346/cherokee-bullying-other-tribes-including-lumbee.
107. 137 CONG. REC. 24199 (1991) (statement of Rep. John Rhodes).KRISTI FIX JAMES(DO NOT DELETE) 1/20/2023 1:26 PM
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The third issue is that when a tribe is recognized, the nearby tribes face
increased competition in casinos, medical marijuana, and other business
endeavors that are unique to tribal nations. Senator Burr suggested that the
EBCI is “willing . . . to disenfranchise other tribes in order to protect their
own lucrative gaming monopoly.”108 Likewise, Senator Burr frowned upon
the EBCI’s “aggressive tactics” towards the Lumbee and characterized the
EBCI’s response as fear of “a threat to [the EBCI’s] gaming business.”109
B. Support
Those in favor of full federal recognition for the Lumbee Tribe point
chiefly to the fact that the Lumbee comprise an authentic Indian community
that deserves and needs funding to support its disadvantaged community.
Supporters of federal recognition acknowledge the injustice and inequitable
funding that have plagued the Lumbee community and posit that recognition
and attendant resources would be a great benefit to Lumbee schools,
businesses, and government. They also argue that the history of the Lumbee
Tribe and its longstanding public ancestral record, discussed supra Section
II.A., completely undercuts criticism that the Lumbee are cultural
appropriators. Additionally, supporters also note that federal recognition
would grant sovereign respect to the Lumbee Tribe and allow it to determine
its own future. Senator Burr testified in the Legislative Hearing on S. 1634
that “[t]he time for excuses is over. The time for action is now. It’s time to
finally do what should’ve been done over 130 years ago. It’s time for the
Federal government to fully recognize the Lumbee tribe.”110
As an additional legal backbone for their support, supporters cite the
UN Charter, which binds the US and all other UN member nations.111 The
Charter states that one of its purposes is “[t]o develop friendly relations
among nations based on respect for the principle of equal rights and self-
determination of peoples.”112 A relevant form of self-determination includes
“a people’s pursuit of its political, economic, social and cultural
development within the framework of an existing state.”113 Accordingly, by
granting the Lumbee Tribe federal recognition and the freedom of self-
determination, the United States would be fulfilling its UN Charter
obligations.
108. Cherokee bullying other tribes, including Lumbee, supra note 106.
109. Id.
110. Senate Lumbee Recognition Hearings, supra note 36, at 33:06.
111. Clare Holtzman, Tribal Sovereignty and the Right to Life 32 DUKE J. COMP. & INT’L L. 457,
478 (2022).
112. U.N. Charter art. 1, ¶ 2.
113. Reference re Secession of Quebec, [1998] 2 S.C.R 217, 282 (Can.).KRISTI FIX JAMES (DO NOT DELETE) 1/20/2023 1:26 PM
138 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW [Vol 33:121
Relatedly, the United Nations’ 2007 Declaration on the Rights of
Indigenous Peoples (UNDRIP) provides a modern foundation for renewed
support of Lumbee federal recognition and the attendant self-determination
that recognition provides.114 The UNDRIP notes that the right to self-
determination includes “the right to autonomy or self-government in matters
relating to their internal and local affairs” and also that “indigenous peoples
have the right to participate in decision-making in matters which would
affect their rights, through representatives chosen by themselves in
accordance with their own procedure, as well as to maintain and develop
their own indigenous decision-making institutions.”115 Federal recognition
of the Lumbee would grant the tribe resources and political power to regulate
and effectuate their own policies and other internal and local affairs, thus
satisfying the principles espoused in the UN Declaration.
IV. THE DEBATE BETWEEN CONGRESSIONAL RECOGNITION
AND ADMINISTRATIVE RECOGNITION
Those who debate whether recognition authority should rest with
Congress or the BIA are generally in two different and mutually exclusive
camps. One group – the proponents of congressional recognition – disfavor
the administrative recognition process because of its extreme rigidity. They
argue that the administrative recognition process is inefficient, costly, and
prohibitively time-intensive, and that Congress should step up and fully
recognize the Lumbee as a matter of justice.
The other group – proponents of administrative recognition – argue that
the congressional process is unanchored by the legal process. They argue
that acknowledging a federal tribe by legislative action is antithetical to the
rule of law, unfair, and would be in derogation of the administrative
recognition process and the intertribal compromise that created it.
A. Arguments Made by Proponents of Administrative Recognition
Those in favor of administrative recognition argue primarily that the
BIA established a procedure to recognize tribes and that all government
actors should respect and abide by such procedure. According to these
proponents, the process ensures accuracy in acknowledging tribes, maintains
fairness by giving no preference to wealthier or more politically connected
tribes, protects the sanctity of federal recognition, and ensures that tribes
114. G.A. Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples (Oct. 2,
2007) [hereinafter UNDRIP]. “While the UNDRIP is not legally binding, the Special Rapporteur on the
Rights of Indigenous Peoples has asserted that ‘[the UNDRIP]’ . . . reflects a wide consensus at the global
level on the minimum content of the rights of indigenous peoples.” Holtzman, supra note 111, at 480.
115. UNDRIP, supra note 114, arts. 3–4.KRISTI FIX JAMES(DO NOT DELETE) 1/20/2023 1:26 PM
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with weaker claims to legitimacy do not clog up the recognition process.
Without an objective administrative recognition process, “Indian identity
disappears in a puff of New Age smoke; con artists become minority
contractors, and respect for tribal sovereignty crumbles.”116
Representative Nickles, among other representatives, has couched his
support of the administrative recognition and his disagreement with
congressional recognition of the Lumbee as a principled desire to follow the
executive recognition process established in 1978. According to him,
because Congress worked with tribal leaders to establish an administrative
recognition process that obviated congressional bias in recognizing certain
tribes but not others, ignoring the process and the tribes who created it would
be disrespectful to tribal efforts and issues.
Some representatives also argue that Congress does not have the
constitutional authority to recognize a tribe in the way that the Lumbee are
seeking. Representative Carlyle, for example, argued that “[d]espite
[Congress’s] plenary power over Indians, Congress may not arbitrarily
confer Federal recognition as an Indian tribe on any group claiming to be a
tribe.”117 “If [Congress were] to recognize the Lumbee . . . in the absence of
any set guidelines, then it seems to me that [Congress would be] act[ing]
ultra vires – outside the bounds of what is constitutionally permissible.”118
Thus, Richardson argued that if Congress were to decide whether a tribe was
worthy of recognition, that congressional decision, like a BIA decision, must
remain criteria-based. And because Congress does not have a set of criteria
or guidelines, congressional recognition would be unconstitutional.
Chief Sneed, the Chairman of the Eastern Band of Cherokee Indians
(EBCI), stated that he is opposed to congressional recognition of the Lumbee
because it would circumvent Federal Indian law. The EBCI’s rule-of-law
concerns are not uniquely directed at the Lumbee tribe, as the EBCI also
opposes other tribes’ actions that occur outside of established governance
processes. Specifically, the Cherokee actively opposed South Carolina
Senator Lindsay Graham’s proposed legislation, co-sponsored by North
Carolina Senators Burr and Tillis, that would pave the way for a Catawba
Indian Nation Casino in Kings Mountain, North Carolina.119 The Catawba
Indian National Lands Act, S. 790, “ratifies and confirms the actions of the
Department of the Interior to take into trust approximately 17 acres of land
116. J. Anthony Paredes, In Defense of the BIA and the NPS: Federal Acknowledgment, Native
American Consultation, and Some Issues in the Implementation of the Native American Graves Protection
and Repatriation Act in the Southeastern United States, 10 ST. THOMAS L. REV. 35, 38 (1997).
117. 139 CONG. REC. H8619 (1993) (statement of Rep. Robert Carlyle).
118. Id.
119. Kays, supra note 100; S. 790, 116th Cong. (2019).KRISTI FIX JAMES (DO NOT DELETE) 1/20/2023 1:26 PM
140 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW [Vol 33:121
in Cleveland County, North Carolina, for the benefit of the Catawba Indian
Nation” and “allows gaming on the land.”120 Chief Sneed said that S. 790,
“exempts the Catawba Nation from going through the federal consultation
and approval process.”121 Under S. 790, Chief Sneed argues, “the Governor,
the North Carolina Senate, the North Carolina House, counties in North
Carolina and the Eastern Band [would be prevented] from having a voice in
the proposed project.”122 Ultimately, Chief Sneed argues that this bill would
allow the Department of the Interior to bypass the formal consultation with
state, county, and tribal governments required by federal law.123
Another critical concern is that if Congress were to wade back into
congressional recognition disputes, it could make mistakes and erroneously
recognize tribes that are undeserving. Representative Nickles argued that
“Congress . . . do[es] not really have expertise [in determining which tribes
should be federally acknowledged]” and that Congress “might not make
some of the right decisions concerning eligibility.”124 Representative Nickles
also acknowledged that “Congress has recognized tribes in the past[,]” but
also admitted that “Congress has made mistakes in the past.”125 In the
specific case of Lumbee recognition, for instance, Representative Nickles
argued that Congress might make a mistake by recognizing the Lumbee
because no “report[s] or other research . . . prove[s] beyond a reasonable
doubt that Lumbee are in fact American Indians with a history of self-
government apart from a state-chartered corporation.”126 Representative
Nickles argued that “all groups should go through the” administrative
process127 to ensure that all tribes are treated and recognized fairly and to
respect the “administrative process that was designed to eliminate the need
for ad hoc determinations through legislation.”128
A related issue is that recognizing tribes through congressional action
would benefit tribes that have better political connections and more money
because they would be able to force themselves to the top of the recognition
pile and also prevent smaller, weaker tribes from being recognized. On this
point, Representative Nickles noted that the purpose of creating an
administrative recognition process was to ensure fairness in acknowledging
120. S. 790, 116th Cong. (2019).
121. Kays, supra note 100.
122. Id.
123. Id.
124. 138 CONG. REC. 3894 (1992) (statement of Sen. Nickles).
125. Id. at 3895.
126. Id. at 3896. Notably, Representative Nickles’s articulated beyond-a-reasonable-doubt standard
is much higher than the reasonable likelihood standard that 25 C.F.R. Part 83 requires.
127. Id.
128. Id. at 3895.You can also read
