Dual Office Holding

N.C. GEN. STAT. §§ 128-1, 128-1.1 and 128-1.2

Dear Rep. Sutton:

You have requested an advisory opinion on whether the elected mayor of the Town of Pembroke may also serve as the Tribal Chairman of the Lumbee Indian Tribe. The mayor, Mr. Milton R. Hunt, was recently elected as the Tribal Chairman in an election conducted by the Lumbee Self-Determination Commission, Inc. (“LSDC”) pursuant to the court’s order in Lumbee Tribe v. LRDA, Inc., No. 95 CVS 2047 (Robeson County April 15, 1999). We conclude that the position of Tribal Chairman is neither an elective nor an appointive office subject to the dual office holding prohibitions of the North Carolina Constitution and related statutes.

It is clear from the Court order referenced above “[t]hat the Lumbee Tribe and its enrolled members possess the inherent and sovereign right of self-determination to select the form and type of government they wished to be governed by.” Slip Op. At 3. Pursuant to the order, the LSDC was established to facilitate a choice of selfgovernment by the Lumbee Tribe pending federal recognition of the Tribe, and the election of officers for the form of government chosen. Slip op. at 12-13. Mr. Hunt has been elected Tribal Chairman as a result of the activities of the LSDC. The form of governance was left up to the Lumbee people, and was not mandated by State or federal law. Thus, the offices of the form of self-governance chosen by the Lumbee people are not State or federal offices.

The N.C. Constitution provides in pertinent part in Article VI, Sec. 9:

no person who holds any office or place of trust or profit under the United States or any department thereof, or under any other state or government, shall be eligible to hold any office in this State that is filled by election by the people. No person shall hold concurrently any two offices in this State that are filled by election of the people. No person shall hold concurrently any two or more appointive offices or places of trust or profit, or any combination of elective and appointive offices or places of trust or profit, except as the General Assembly shall provide by law.

The General Assembly has adopted G.S. §§ 128-1, 128-1.1 and 128-1.2 to implement this general rule.

These rules are pertinent, however, only if an elected official accepts, or considers accepting, a second elective or appointive office. The test of whether a position is an elective or appointive office is whether part of the sovereignty of the State or national government attaches to the position. See, e.g., State ex rel. Wooten v. Smith, 145

N.C. 476, 59 S.E. 649 (1907). The position of mayor of the Town of Pembroke is clearly an elective office exercising the sovereignity of the State. Conversely, the position of Tribal Chairman exercises no sovereign powers of either the State of North Carolina or of the United States. Thus, we conclude that dual office holding prohibitions do not apply to prevent Mr. Hunt from assuming the position of Tribal Chairman of the system of governance chosen by the Lumbee people.

Signed by:

Ann Reed Senior Deputy Attorney General

Susan K. Nichols Special Deputy Attorney General