August 23, 1995
Gregory A. Richardson Executive Director Commission of Indian Affairs 325 N. Salisbury Street, Suite 579 Raleigh, North Carolina 27603-5940
RE: Advisory Opinion; Commission of Indian Affairs; N.C.G.S. 143B-404, et seq.; Authority of the Commission of Indian Affairs to acknowledge a particular form of tribal government for any State recognized tribe.
Dear Mr. Richardson:
You request our opinion whether the Commission of Indian Affairs (Commission) has the authority to acknowledge the "Lumbee Tribe of Cheraw Indians" as the official tribal government of the "Lumbee Tribe of North Carolina."
For reasons which follow, it is our opinion that the Commission does not have the authority to acknowledge any particular form of tribal government for any State recognized tribe. Therefore, the Commission may not acknowledge the "Lumbee Tribe of Cheraw Indians" as the official tribal government of the "Lumbee Tribe of North Carolina."
- N.C.G.S.
- 143B-406 provides in pertinent part that the North Carolina Commission of Indian Affairs has the duty "to study the existing status of recognition of all Indian groups, tribes and communities presently existing in the State of North Carolina; to establish appropriate procedures to provide for legal recognition by the State of presently unrecognized groups; to provide for official State recognition by the Commission of such groups; and to initiate procedures for their recognition by the federal government." (Emphasis added)
- N.C.G.S.
- 143B-407 (a) provides that the Commission shall consist of "eighteen representatives of the Indian community. These Indian members shall be selected by tribal or community consent from the Indian groups that are recognized by the State of North Carolina … ."
- N.C.G.S.
- 143B-407(b) further provides that "(m)embers representing Indian tribes and groups shall be elected by the tribe or group concerned. Vacancies shall be filled by the tribal council or governing body concerned."
Administrative agencies, such as this Commission, are creatures of the General Assembly. Their power derives from the General Statutes. They have only such power as is conferred upon them by law. 1 Strong’s N.C. Index 4, Administrative Law and Procedure 1 (1990); 1 Am Jur 2d, Administrative Law §70 (1962).
The General Assembly has conferred no authority on the Commission to select the individuals to represent a State recognized tribe on the Commission. The various tribes and organizations select the individuals they wish to represent them. The Commission seats the people that have been selected by the tribes or organizations.
The Lumbee Regional Development Association (LRDA) is a private, non-profit corporation that has assumed a leadership role in the community through its efforts to secure federal recognition and procure federal resources for the benefit of the Lumbee Tribe. Accordingly, LRDA has, for a number of years, been named in the Commission by-laws as the organization to administer election of Lumbee members to the Commission in accordance with election procedures on file with the Commission. Over its 25 year existence, LRDA has developed an extensive roll which has been generally recognized as the Lumbee tribal membership roll containing over 45,000 members.
Although the "Lumbee Tribe of North Carolina" has been statutorily recognized by the State of North Carolina since at least 1953, N.C.G.S. 71A-3, for the last forty-two years, the Lumbee Tribe has had no written constitution or any formal government structure of which we are aware. In 1994 a group of Lumbee indians promulgated a constitution and conducted an election to adopt that constitution as the "Lumbee Tribe of Cheraw Indians." A part of that constitution provided for the selection of a new tribal council as their governing body. That tribal council sought Commission recognition as the tribal government of the "Lumbee Tribe."
Indian tribes have historically been recognized as sovereign entities by the federal government. A tribe stands outside the federal government structure and deals with the federal government as a separate political entity. Golden Hill Paugussett Tribe of Indians v. Town of Southbury, 231 Conn 563, 651 A.2d 1246 (1995).
Tribal governments have existed since time immemorial and have always taken shape in response to the needs and desires of the group. Determining membership in a tribe, that is establishing who has the fundamental rights and obligations of citizenship – is a basic function of any government. Because membership requirements and enrollment procedures are so fundamental, they act as pressure points in the political life of a tribe. In the election held to approve the constitution of the "Lumbee Tribe of Cheraw Indians," no tribal membership roll was used. See, Basic Indian Law, Falmouth Institute (1994).
Indian tribes have the right to make their own rules and to be governed by them. Williams v. Lee, 358 U.S. 217, (1959). To the extent that a state attempts to assert jurisdiction over Indians belonging to federally recognized tribes and their transactions and property, state jurisdiction has generally been denied unless expressly permitted by Congress.
We must note at this point that neither the "Lumbee Tribe of North Carolina" nor the "Lumbee Tribe of Cheraw Indians" is a federally recognized tribe.
The federal court system has been very reluctant to interfere or intervene in tribal matters. In Rosebud Sioux Tribe of South Dakota v. Ed Driving Hawk, 534 F.2d 98, 100 (8th Cir. 1976), the court said:
The federal courts should infringe as little as possible upon the authority of an Indian tribe to govern itself. … it is incumbent upon each Indian tribe to establish a system whereby election contests can be fairly tried and fairly resolved in compliance with the guarantees of equal protection and due process of law. [Emphasis supplied] The federal courts should not be called upon to supervise and decide a multitude of issues raised in tribal elections.
Federal courts are uniformly holding that tribes have self-determination at their disposal and the federal courts will not get involved in tribal election disputes unless it is absolutely necessary.
Goodface v Grassrope, 708 F. 2d 335 (8th Cir., 1983) concerned a dispute over a tribal election held by the Lower Brule Sioux Tribe. The Court stated: It is essential that the parties seek a tribal remedy for, as previously noted, substantial doubt exists that federal courts can intervene under any circumstances to determine the rights of the contestants in a tribal election dispute. 704 Fed. 2d at 339.
With federally recognized tribes, the Secretary of the Bureau of Indian Affairs can authorize the calling of an election on adoption of a constitution and by-laws upon request by the tribal governing body or an authorized representative committee or upon petition filed by at least onethird of the adult members of the tribe. 25 CFR 83.1 et seq. This is the method by which Indian tribes organize themselves under federal law. North Carolina law confers no similar authority on the Commission.
In the case of the "Lumbee Tribe of North Carolina," it is not clear that any tribal government has been established in accordance with constitutional guarantees of equal protection of the laws with due process afforded to all tribal members.
The "Lumbee Tribe of Cheraw Indians" has not been statutorily recognized as a tribe or group by the General Assembly of North Carolina nor has it sought such recognition through established procedures of the Commission. Instead, its tribal council requested, and the Commission adopted the resolution attached as Exhibit 1 which purports to acknowledge its constitution and tribal council as the government of the "Lumbee Tribe."
We find nothing in North Carolina statutes nor in any recorded court decisions which would confer authority on the Commission to acknowledge the new constitutional document as the governmental structure of the "Lumbee Tribe" nor the tribal council as representatives duly authorized to conduct tribal relations for all governmental purposes including the conduct of all relations with the Commission.
We are informed that the resolution is being furnished by the tribal council to federal agencies as part of an effort to displace LRDA as recipient manager of federal resources for the benefit of the Lumbee people, thus creating a present dispute between the tribal council and LRDA. (See Exhibit 2.)
We find no authority in law for the Commission to serve as a quasi-judicial forum for the determination of the present dispute between the new tribal council and LRDA.
MICHAEL F. EASLEY Attorney General
Andrew A. Vanore, Jr.
Chief Deputy Attorney General
T. Buie Costen
Special Deputy Attorney General
D. David Steinbock
Assistant Attorney General