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Distributive Justice Against Lumbee Recognition

WASHINGTON - By any standard of abstract justice, the Lumbee of North
Carolina answered critics of their case for full federal recognition at a
packed hearing of the Committee on Resources in the House of
Representatives April 1. The occasion was H.R. 898, the Lumbee Recognition
Act.

Not only did the Lumbee refute every argument brought against them on the
merits, but they also had to argue their way into the hearing room. With
space limited, the Eastern Cherokee delegation, principal opponents of full
federal recognition for the Lumbee, hired people to hold them a place in
line, according to an attorney for the Lumbee, Arlinda F. Locklear, and
others present at the pre-hearing dispute. For a while it seemed that the
very subjects of the hearing, Lumbee people, would not be allowed in the
room because of overcrowding. But here at least, justice prevailed and the
Capitol Police spent an hour enforcing it.

With that small struggle for distributive justice won, much larger ones
loom for the Lumbee. From the testimony April 1, H.R. 898 will boil down to
a simple question of distributive justice. As opposed to the body of
reasoned argumentation that determines our view of what is just in the
abstract, distributive justice asks how resources are most fairly
distributed. The simple question of distributive justice in the Lumbee case
is this - can Indian country afford the full federal recognition of 50,000
Lumbee, making it the third-largest tribe in the nation?

The Eastern Cherokee and their allies in North Carolina think not. They
fear the Lumbee will install a casino along Interstate 95, the primary
north-south artery of the eastern seaboard. An I-95 complex in Robeson
County, N.C., home of the Lumbee, would be within easy reach of Fort Bragg,
Raleigh-Durham, Chapel Hill, Pinehurst, Myrtle Beach, S.C., and South
Carolina's military installations. Even without the lure of a casino,
39,000 vehicles a day use I-95 in Robeson County. A casino there is apt to
be a billion dollar operation annually, according to one expert. The Lumbee
deny any plans ... a casino, but no future federally recognized council
would be bound by the deliberations of its predecessor councils; and so
many consider a Lumbee casino a foregone conclusion if Congress confers
recognition.

"This is a major concern in my state," said William J. Brooks Jr.,
president of the North Carolina Family Policy Council. "North Carolina
remains one of 11 states in the nation without a state lottery, and our
citizens and state lawmakers have traditionally resisted gambling at almost
every opportunity. The only forms of gambling that are legal in North
Carolina are bingo, limited video gambling with no cash payouts, and the
Harrah's Cherokee Casino in the mountains of western North Carolina, which
offers only bingo and video-based machines.

"In fact, the Cherokee casino ... is somewhat difficult to get to, not
being on an interstate or other major highway. Nevertheless, this facility
boasts about 3.3 million annual visits, making it the largest private
tourist attraction in North Carolina."

The council is neutral on full Lumbee federal recognition, Brooks said. It
favors a moratorium on gambling expansion in the United States, and Brooks
testified to that effect at the hearing.

Eastern Cherokee Chairman Michell Hicks soft-pedaled any concern over a
Lumbee threat to the tribe's monopoly on North Carolina casino gambling.
His concern was with the federal budget. H.R. 898 "could cost more than 682
million in taxpayer dollars over four years and further decrease the funds
existing tribes and Indians receive."

United Southern and Eastern Tribes, a 24-tribe coalition, joined the
Eastern Cherokee in opposition to H.R. 898. Tim Martin, USET executive
director, cited a recent Congressional Budget Office study documenting the
adverse budgetary impact a Lumbee-sized tribe would have on other tribes.
Like most tribes east of the Mississippi River, the USET tribes tend to
have small populations and a limited land base. Like small tribes and many
other tribes and tribal organizations nationwide, the organization has
already expressed concerns about cutbacks in the BIA direct-service budget.

Non-financial arguments against the Lumbee claim fell by the wayside under
questioning from Lumbee allies on the committee, chiefly Reps. Nick Rahall,
D-W.Va., and Eni Faleomavaega, at-large member for American Samoa. (Sen.
Elizabeth Dole, R-N.C., a leading advocate of Lumbee recognition, testified
in favor of H.R. 898, but as a senator in the House forum she could not
pose questions.)

The Lumbee, recognized by the state of North Carolina in 1885, are already
a federally recognized tribe, but the 1956 congressional legislation came
without the financial and other entitlements enjoyed by other federally
recognized tribes. The Lumbee have described themselves under other names
than Lumbee, but they have done so only on the initiative of the Interior
Department, according to Locklear.

To recognize the Lumbee now by an act of Congress would indeed constitute
an exception to the BIA recognition process established in 1978. But how
much of an exception can it be when only 16 tribes have ever been
recognized by that process? Martin admitted under questioning that only six
USET tribes have been through the federal recognition process. Also under
questioning, Hicks acknowledged that the Eastern Cherokee were federally
recognized by an act of Congress.

In any case, the Lumbee are considered worthy of exception due to unique
circumstances - the 1956 legislation that recognized them also barred them
from federal benefits, including the right to seek recognition under the
1978 process. Without any other way open to them, the Lumbee seek an act of
Congress.

An alternative remedy would be to enact legislation enabling the Lumbee to
seek federal recognition within the system dating from 1978. Charles
Taylor, R-N.C., the committee chairman, said he will introduce such
legislation, despite a companion hearing March 31 that found tribe after
tribe complaining about the red tape, expense, longevity and arbitrariness
of the recognition proceedings. The Lumbee themselves resist this remedy,
contending they've proved their case again and again since 1888, when the
tribe first petitioned for federal recognition.