Indigenous Self-Government under State Recognition: Comparing Strategies in Two Cases

Item Type text; Electronic Dissertation

Authors Hiraldo, Danielle Vedette

Publisher The University of Arizona.

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INDIGENOUS SELF-GOVERNMENT UNDER STATE RECOGNITION: COMPARING STRATEGIES IN TWO CASES

by

Danielle V. Hiraldo

______

A Dissertation Submitted to the Faculty of the

GRADUATE INTERDISCIPLINARY PROGRAM IN AMERICAN INDIAN STUDIES

In Partial Fulfillment of the Requirements

For the Degree of

DOCTOR OF PHILOSOPHY

In the Graduate College

THE UNIVERSITY OF ARIZONA

2015

THE UNIVERSITY OF ARIZONA GRADUATE COLLEGE

As members of the Dissertation Committee, we certify that we have read the dissertation prepared by Danielle Hiraldo, titled Indigenous Self-Government under State Recognition: Comparing Strategies in Two Cases and recommend that it be accepted as fulfilling the dissertation requirement for the Degree of Doctor of Philosophy.

______Date: 11/12/15 Robert Hershey

______Date: 11/12/15 Benedict J. Colombi

______Date: 11/12/15 Stephen Cornell

______Date: 11/12/15 K. Tsianina Lomawaima

Final approval and acceptance of this dissertation is contingent upon the candidate’s submission of the final copies of the dissertation to the Graduate College.

I hereby certify that I have read this dissertation prepared under my direction and recommend that it be accepted as fulfilling the dissertation requirement.

______Date: 11/12/15 Dissertation Director: Robert Hershey

2 STATEMENT BY AUTHOR

This dissertation has been submitted in partial fulfillment of the requirements for an advanced degree at the University of Arizona and is deposited in the University Library to be made available to borrowers under rules of the Library.

Brief quotations from this dissertation are allowable without special permission, provided that an accurate acknowledgement of the source is made. Requests for permission for extended quotation from or reproduction of this manuscript in whole or in part may be granted by the head of the major department or the Dean of the Graduate College when in his or her judgment the proposed use of the material is in the interests of scholarship. In all other instances, however, permission must be obtained from the author.

SIGNED: Danielle V. Hiraldo

3 TABLE OF CONTENTS LIST OF ILLUSTRATIONS ...... 6 CHAPTER ONE: INTRODUCTION ...... 8 NATIVE NATIONS AND THE EXCLUSIVE FEDERAL RELATIONSHIP ...... 11 FEDERALISM: THE DIVISION OF POWER AND AUTHORITY IN THE UNITED STATES ...... 18 A WAVE OF NEW FEDERALISM ...... 22 STATE RECOGNITION: AN EXAMPLE OF TRIBAL-STATE RELATIONSHIPS ...... 24 CASE STUDIES: LUMBEE AND WACCAMAW INDIAN PEOPLE ...... 28 RESEARCH QUESTIONS ...... 33 METHODOLOGY ...... 33 DEFINITIONS ...... 38 CHAPTER TWO: RESTRUCTURING THE GOVERNMENT-TO-GOVERNMENT RELATIONSHIP ...... 40 WHO DECIDES? ...... 41 THE ARGUMENT REMAINS THE SAME: FEDERAL ACKNOWLEDGMENT OPENS DOORS ...... 45 NATIVE NATION/STATE RELATIONSHIPS: DEVOLUTION OF AUTHORITY ...... 49 CHAPTER THREE: STATE RECOGNITION ...... 53 FEDERALISM: ALTERNATIVE ARENAS FOR STATE RECOGNITION ...... 53 STATE RECOGNITION: A NEW PHENOMENON? ...... 58 LUMBEE RECOGNITION IN NORTH CAROLINA ...... 62 WACCAMAW INDIAN PEOPLE RECOGNITION IN SOUTH CAROLINA ...... 66 ISSUES FACING STATE-RECOGNIZED NATIVE NATIONS ...... 70 SURVEY OF OTHER RELATIONSHIPS ...... 75 CHAPTER FOUR: LUMBEE TRIBE OF NORTH CAROLINA ...... 81 WHO ARE THE LUMBEES? ...... 81 HISTORICAL ANALYSIS OF LUMBEE INVOLVEMENT IN NORTH CAROLINA POLITICS ...... 89 “IF YOU ARE NOT AT THE TABLE, YOU ARE ON THE MENU”: GETTING THINGS DONE THROUGH LUMBEE SOCIAL AND POLITICAL ORGANIZATION ...... 100 AN EXAMPLE: LUMBEES AND INDIAN CHILD WELFARE ...... 109 CHAPTER FIVE: THE WACCAMAW INDIAN PEOPLE ...... 121 WHO ARE THE WACCAMAW? ...... 121 THE DIMERY SETTLEMENT: HISTORICAL ANALYSIS OF THE WACCAMAW INDIAN PEOPLE ...... 124 WACCAMAW SOCIAL AND POLITICAL ORGANIZATION ...... 127 CONTEMPORARY POLITICAL RELATIONSHIPS IN SOUTH CAROLINA ...... 133 CHAPTER SIX: WHAT CAN WE LEARN FROM THE LUMBEE AND WACCAMAW CASE STUDIES ...... 139 EXTERNAL VARIABLES ...... 140 Time ...... 141 Population ...... 141 Relations ...... 142 LUMBEE STRATEGIES: WHAT WORKS ...... 146 Voting ...... 148 Serving as Political Actors ...... 150

4 Engaging All Levels of Government ...... 153 Political “Friends” ...... 154 Pushing Political Agenda ...... 155 Lumbee Keys to Success ...... 155 Lumbee Challenges ...... 157 WACCAMAW STRATEGIES: WHAT WORKS ...... 160 Political “Friends” ...... 162 Pushing Political Agenda ...... 163 Internal Capacity ...... 164 Waccamaw Keys to Success ...... 165 Waccamaw Challenges ...... 165 UNEXPLORED OPPORTUNITIES ...... 167 HOW HAVE THEY SURVIVED: BY THE SEAT OF THEIR PANTS ...... 169 CONCLUDING REMARKS ...... 170 BIBLIOGRAPHY ...... 173

5 LIST OF ILLUSTRATIONS

FIGURE 1: SOVEREIGNS IN THE UNITED STATES ...... 14 FIGURE 2: U.S. DISTRIBUTION OF POWERS ...... 18 FIGURE 3: NATIONAL FEDERALISM ARENAS ...... 20 FIGURE 4: TRIBAL-STATE FEDERALISM ARENAS ...... 23 FIGURE 5: INTERVIEW TOPICS AND THEMES ...... 37 FIGURE 6: STATE-RECOGNIZED/NATIONAL FEDERALISM ARENAS ...... 57 FIGURE 7: STATE-RECOGNIZED TRIBAL-STATE RELATIONSHIPS FEDERALISM ARENAS ...... 69 FIGURE 8: LUMBEE MIGRATION (MAP FROM LOWERY, MALINDA MAYNOR. LUMBEE INDIANS IN THE JIM CROW SOUTH: RACE, IDENTITY, AND THE MAKING OF A NATION. FIRST PEOPLES: NEW DIRECTIONS IN INDIGENOUS STUDIES. CHAPEL HILL: UNIVERSITY OF NORTH CAROLINA PRESS, 2010.) ...... 83 FIGURE 9: EXAMPLES OF LUMBEE POLITICAL INVOLVEMENT ...... 90 FIGURE 10: LUMBEE SOCIAL AND POLITICAL ORGANIZATION ...... 106 FIGURE 11: NC ICWA TIMELINE OF EVENTS ...... 112 FIGURE 12: NC PROVISIONS COMPARED TO ICWA ...... 118 FIGURE 13: WACCAMAW INDIAN PEOPLE OF SOUTH CAROLINA (MAP FROM SOUTH, STANLEY.“THE UNABRIDGED VERSION OF TRIBES OF THE CAROLINA LOWLANDS: PEDEE- SEWEE-WINYAW-WACCAMAW-CAPE FEAR-CONGAREE-WATEREE-SANTEE.”RESEARCH MANUSCRIPT SERIES. BOOK 16. (1972).) ...... 122 FIGURE 14: WACCAMAW INDIAN PEOPLE SOCIAL AND POLITICAL ORGANIZATION ...... 131 FIGURE 15: EXTERNAL VARIABLES ...... 140 FIGURE 16: LESSON LEARNED: LUMBEE ...... 148 FIGURE 17: LESSONS LEARNED: WACCAMAW ...... 162

6 ABSTRACT

Contemporary events frequently call into question the status of state-recognized Native nations. For example, the National Congress of American Indians (NCAI) failed to pass a resolution dissolving state-recognized membership; and the Government Accountability Office

(GAO) has reported on the reality of federal funds awarded to non-federally recognized Native nations. Although state-recognized Native nations are handicapped in their strategies and the availability of resources to assert their right to self-determine, some have persevered despite the inability to establish a direct relationship with the national government. Reconsidering federalism as it pertains to Native nations reveals opportunities for non-federally recognized

Native nations to access resources and assert self-governing authority in alternative arenas outside the exclusive tribal-national government-to-government relationship.

My research analyzes how two state-recognized Native nations, the Lumbee Tribe of

North Carolina and the Waccamaw Indian People of South Carolina, have operated as political actors; have maintained their communities; have organized politically and socially; and have asserted their right to self-determine by engaging state—and at certain times federal—politics to address needs within their communities. I used a qualitative case study approach to examine the strategies these two state-recognized Native nations have developed to engage state relationships.

I argue that state-recognized Native nations are developing significant political relationships with their home states and other entities, such as federal, state, and local agencies, and nonprofits, to address issues in their communities.

7 CHAPTER ONE: INTRODUCTION

State-recognized Native nations have been marginalized in the debate over asserting sovereignty in the American federalist system. Discourse within Indian Country and among those working with federal Indian policy suggests that state-recognized Native nations are inferior because they are not “recognized” and, therefore, are incapable of operating as sovereigns. I argue that tribal sovereignty in the context of recognition is viewed incorrectly.

Sovereignty is not granted by the national government, but only recognized and thus, establishes a government-to-government relationship through federal recognition. Federal Indian policy scholar David E. Wilkins argues, “[q]uestions around whether a tribe is federally recognized, state-recognized, nonrecognized, or terminated have a direct bearing on the internal and external political dynamics of tribes, and directly affect intergovernmental relations.”1

In 2012, the status of state- recognized (and non-federally recognized) Native nations became a topic of discussion on several occasions. At the annual meeting of the National

Congress of American Indians (NCAI), an organization with the purpose of “serving the broad interests of tribal governments and communities,” the membership was presented with a resolution to ban state-recognized Native nations as members of the organization. 2 The membership rejected the resolution with an overwhelming majority vote, but submission of the resolution demonstrates that the question of state recognition status remains open. The United

States Government Accountability Office (GAO) also conducted an analysis of federal funding for non-recognized Native nations questioning the use of federal dollars to fund state-recognized

1 David E. Wilkins, American Indian Politics and the American Political System (Lanham, MD: Rowman & Littlefield, 2002), 28. 2 Information received from the NCAI website. National Congress of American Indians. About NCAI. Washington, DC: NCAI, 2013. http://www.ncai.org/about-ncai (accessed April 23, 2013)

8 and non-recognized communities. Both occasions imply that there are crucial questions of legitimacy attached to the status of state-recognized Native nations.3

The system of shared sovereignty known as federalism in the United States provides an opportunity for non-federally recognized Native nations to access resources and assert self- governing authority. Whereas federally recognized Native nations have been forced to interact with states, resulting in historically contentious relationships, state-recognized communities have developed successful (and some not so successful) strategies to engage state politics in their self- determination efforts. Moreover, state-recognized Native nations have participated in the United

States political system at varying levels to get things done. Self-determination for Native peoples is the right to control or manage affairs on their own terms. In the broadest sense of the term, self-determination should not connote a certain status, such as federal recognition, but should refer to acts of assertion through a variety of strategies including creating nonprofits, negotiating memorandums of understandings, participating in the United States’ political system (e.g. intergovernmental relations), partnering with private corporations, and so on. In the United

States there are three different recognition classifications assigned to Native nations: federal, state, and non-recognition. For the purpose of this research, I have chosen to focus on state recognition, but I have included one example of efforts to politically participate by non- recognized nations in Chapter Three.

Common assumptions about tribal-state relations lead many to argue that states have no business in the tribal-national government-to-government relationship. Critics of states often refer to states as Native nations’ “deadliest enemies.” Chief Justice John Marshall set a precedent

3 Concerns around state recognition status are somewhat warranted because of the inconsistent criteria requirements adopted by each state. In addition, the opportunistic nature of some groups to self-identify as Native, but are in no way affiliated with a historically indigenous community or have direct ties that community. These people, for all intents and purposes, are “playing Indian” with the hopes of acquiring resources that accompanies such designation.

9 in the 1832 Supreme Court case, Worcester v. Georgia4 decision, excluding states from interacting directly with Native nations and upholding national authority concerning Indigenous affairs. Then in 1886, in United States vs. Kagama,5 Justice Samuel Miller expounded on Chief

Justice Marshall’s decision stating that:

They [Native nations] owe no allegiance to the states, and receive from them no

protection. Because of the local ill feeling, the people of the states where they are found

are often their deadliest enemies. From their very weakness and helplessness, so largely

due to the course of dealing of the federal government with them, and the treaties in

which it has been promised, there arises the duty of protection, and with it the power.6

The deadliest enemy concept affirms state exclusion and upholds national authority, maintaining the exclusive tribal-national government-to-government relationship. This tension exists with good reason. States have actively sought to undermine Native nations’ sovereign rights, completely ignored their sovereign authority, and engaged in illegal land and resource takings.7

For these reasons, states have garnered the reputation as the enemy in Indigenous affairs. I am proposing a different way to view tribal-state relations, not as a critique of these assumptions

(because they are warranted), but to offer a new perspective that demonstrates the potential for

Native people to leverage political authority over competing agendas found among national and state governments. It is important to note that the deadliest enemy concept implies that national relationships are not highly contentious and contested. Both relationships are problematic, but

4 Worcester v. Georgia, 31 U.S. 515 (1832) 5 United States vs. Kagama, 118 U.S. 375 (1886) 6 Ibid, Kagama, [emphasis added] 7 See also Matthew L. M. Fletcher, "Retiring the 'Deadliest Enemies' Model of Tribal-State Relations," Tulsa Law Review 43, no. 1 (2007). Fletcher provides an interesting argument that supports intergovernmental relationships with states as an exercise of sovereignty.

10 using state-recognized Native nations as examples of political navigation through the federalism landscape provide strategies that any Indigenous nation could employ.

My research demonstrates that state-recognized Native nations are political actors and have created geographical, physical, and political spaces conducive to address the needs within their community.8 My dissertation provides two examples of how two state-recognized Native nations, the Lumbee Tribe of North Carolina and the Waccamaw Indian People of South

Carolina, have maintained their communities despite racially-charged state policies seeking to eradicate them; have organized their communities politically; and have exercised their right to self-determine by engaging state—and at certain times national—politics to address needs within their communities. Both communities faced the challenge of maintaining a separate identity in a racially divided South, more specifically, a South that worked very hard to remove the Native population. Despite the states’ attempt to erase the Native presence, these communities were able to resist those efforts by carving out spaces through their dynamic leaders, social institutions, and political influence. My findings suggest that state-recognized Native nations have employed successful strategies to survive by navigating their way through and in-between the United

States’ federalist system in their pursuit of self-determination to meet the needs of their people.

Native Nations and the Exclusive Federal Relationship

Extensive scholarship on the federal acknowledgement process (FAP) has largely noted its failures.9 The literature describes federal recognition in its simplest term as the United States

8 I have defined political actors as U.S. political system participants. 9 See Brian Klopotek, Recognition Odysseys: Indigeneity, Race, and Federal Tribal Recognition Policy in Three Louisiana Indian Communities (Durham [N.C.]: Duke University Press, 2011).; Malinda Maynor Lowery, "Telling our Own Stories: Lumbee History and the Federal Acknowledgment Process," American Indian Quarterly 33, no. 4 (2009), 499-522.; Anne Merline McCulloch and David E. Wilkins, "'Constructing' Nations within States: The Quest for Federal Recognition by the Catawba and Lumbee Tribes," American Indian Quarterly 19, no. 3 (1995), 361-

11 recognizing a Native nation as a separate sovereign entity. Wilkins defines federal recognition as

“a formal act that establishes a political relationship between a tribe and the United States.”10

Scholars Alexa Koenig and Jonathan Stein explain, “Federal recognition, as the name implies, is a gestalt reflection of the inherent power of state tribes; federal acknowledgement is neither its creation nor its source.”11 Most scholars agree that federal acknowledgement recognizes a Native nation’s inherent ability to self-govern, which includes making and enforcing its own rules, defining citizenship and maintaining/promoting culturally significant practices for self- preservation, and determining the educational curriculum of relevant schools and colleges. David

E. Wilkins and K. Tsianina Lomawaima state:

A sovereign nation defines itself and its citizens, exercises self-government and the right

to treat with other nations, applies it jurisdiction over the internal legal affairs of its

citizens and subparts (such as states), claims political jurisdiction over the lands within its

borders, and may define certain rights that inhere in its citizens (or others).12

These are all things that the United States recognizes federally recognized Native nations can do.

The government-to-government relationship acknowledges that Indigenous peoples were governing bodies prior to the creation of the United States and have maintained that governing authority. As with any governing body, federally recognized Native nations can make and enforce laws, establish a dispute resolution mechanism, define citizenship, assert jurisdiction over a prescribed territory, manage resources, build an economy, and so on. However, scholars

388.; Bruce G. Miller, Invisible Indigenes: The Politics of Nonrecognition (Lincoln ; London: University of Nebraska Press, 2003), 248.; Jr Quinn William W., "Federal Acknowledgment of American Indian Tribes: The Historical Development of a Legal Concept," The American Journal of Legal History 34, no. 4 (Oct., 1990), pp. 331-364. 10 Wilkins, American Indian Politics and the American Political System, 13. 11 A. Koenig and J. Stein, "Lost in the Shuffle: State-Recognized Tribes and the Tribal Gaming Industry," University of San Francisco Law Review. 40, no. 2 (2006), 346. [Emphasis in original] 12 David E. Wilkins and K. Tsianina Lomawaima, Uneven Ground: American Indian Sovereignty and Federal Law (Norman Okla.: University of Oklahoma Press, 2001), 4.

12 have argued that federal Indian law and policies have sought to constrain or expand the recognition of self-governing authority in U.S federalist system.13

As federal Indian policies and practices have changed over time, so have the ways in which Native nations have asserted their sovereignty. Wilkins and Lomawaima acknowledge that

“the political realities of relations with the federal government, relations with state and local governments, competing jurisdictions, complicated local histories, circumscribed land bases, and overlapping citizenships all constrain their [Native nations’] sovereignty.”14 Therefore, tribal sovereignty is a constant negotiation among sovereigns depending on the circumstances. Kevin

Bruyneel posits, “In resistance, indigenous political actors speak against and across the boundaries of colonial rule by articulating and fighting for a third space: a space of sovereignty and/ or citizenship that is inassimilable to the modern liberal democratic settler-state and nation.”15 Consequently, according to Bruyneel, political leaders are constantly negotiating tribal sovereignty to ensure an expression of collective autonomous actions in the American federalist system. Although Bruyneel discusses tribal sovereignty in the realm of Native nations holding a position of power or leverage to negotiate, he does not address how they are operating (e.g. negotiating sovereignty) outside of the literature’s portrayal of the government-to-government relationship.16

13 See Deloria, Vine., Lytle, Clifford M., American Indians, American Justice (Austin: University of Texas Press, 1983).; Vine Deloria, Custer Died for Your Sins: An Indian Manifesto (New York: Macmillan, 1969).; Robert A. Williams, Like a Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal History of Racism in America (Minneapolis, MN: University of Minnesota Press, 2005). 14 Wilkins and Lomawaima, Uneven Ground: American Indian Sovereignty and Federal Law, 5. 15 Kevin Bruyneel, The Third Space of Sovereignty: The Postcolonial Politics of U.S.-Indigenous Relations (Minneapolis: University of Minnesota Press, 2007), 217. 16 According to Article I, Section 8, Clause 3, also known as the Indian Commerce Clause, of the United States Constitution, Congress has the power “To regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes;” U.S. Const. Art. I,§8, cl.3. The Supreme Court interpretation of this clause identifies the government-to-government relationship that exists between Native nations and the federal government. The United States specifically recognizes “Indian Tribes” within this clause as a separate entity suggesting the unique status that exists for Native nations, thus recognizing the three separate sovereigns (federal and state governments, and Native nations) in the United States Constitution.

13 It is a common understanding within the American Indian Studies discipline that Native nations are equal, if not slightly higher, than states’ standing in the federalist system. Scholars, including Bruyneel, have argued that the sovereignty of Native nations is beyond the scope of the

American political system. According to Wilkins, “Tribal nations stand, then, as preconstitutional and extraconstitutional polities situated alongside, but not constitutionally subject to, the federal government.”17 Considering the federalism construct, Native nations have historically held a position higher than states because of their pre-and extra-constitutional status.

Native Nations

National States

Figure 1: Sovereigns in the United States Figure 1 illustrates the sovereigns in the United States and how they talk to one another. Because

Native nations are pre- and extra-constitutional, I placed them higher than the national and state governments. “However, since indigenous nations existed well before the formation of the U.S. government, their powers of self-determination are not derived from federal or state constitutions.”18 Because Native nations’ inherent sovereignty is not derived from the

Constitution, the U.S Supreme Court and Congressional legislation have interpreted the government-to-government relationship as existing exclusively with the national government and not states.

17 Wilkins, American Indian Politics and the American Political System, 64. 18 Jeff Corntassel and Richard C. Witmer, Forced Federalism: Contemporary Challenges to Indigenous Nationhood, Vol. 3: 3. (Norman: University of Oklahoma Press, 2008), xiv-xv.

14 The foundational Supreme Court cases known as the Marshall Trilogy (Johnson v.

M’Intosh,19 Cherokee Nation v. Georgia,20 and Worcester v. Georgia21) further established the relationship.22 These three cases emphasized that states are not included in this exclusive relationship. Further, the Supreme Court cases affirm a trust responsibility originating from negotiated treaties and extending to all federally acknowledged Native nations. Stephen Pevar explains, “The Supreme Court has held that treaties of this nature create a special relationship between Indian tribes and the federal government—a unique bond— that obligates the government to keep its end of the bargain, now that the tribes have kept theirs.”23 Reality shows that the U.S. has not always, or even often, fulfilled the fiduciary and other obligations of a trust relationship with Native nations.

The structures of federalism have offered points of leverage for Native nations to assert their position or space since the founding of the United States, even when the system has not

19 Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823) 20 Cherokee Nation v. Georgia 30 U.S. (5 Pet.) I (1831) 21 Worcester, see supra note 4. 22 The Marshall trilogy, referencing Chief Justice John Marshall, includes three cases that have established a foundation for the Native nation- United States relationship; Johnson v. McIntosh, Cherokee Nation v. Georgia and Worcester v. Georgia. Johnson. Johnson v. McIntosh created the notion of “Indian occupancy” which recognizes the United States as owner of the land because of their “colonizer” status and the Native nations maintaining their right to occupy their own land until the federal government extinguishes that right. Cherokee Nation v. Georgia declared Native nations “domestic dependent.” Considering that tribal land resides within the United States’ jurisdiction, the Supreme Court deemed Native nations as domestic dependents within the boundaries of the United States territory thus resembling a guardian-ward relationship. The Court reasoned that the framers of the Constitution did not recognize Native nations as foreign nations because of the separate listing in the Indian Commerce clause. Although the first two out of three cases restrict tribal sovereignty, the final Supreme Court case establishes a unique government-to- government relationship between Native nations and the federal government. The final case, Worcester v. Georgia, holds that state law does not apply in Native nation’s jurisdiction. Marshall continues his opinion by stating that tribal communities are sovereign and treaties represent their sovereignty, validating the negotiations between Native nations and the United States as official legally binding agreements. He also explains that the doctrine of discovery does not suggest the weaker sovereign “surrender its independence” to the stronger sovereign; in fact, Marshall suggests that the stronger sovereign places the weaker sovereign under its protection just like a guardian to its ward. This status establishes the trust responsibility of the United States for Native nations. 23 Stephen L. Pevar, The Rights of Indians and Tribes: The Authoritative ACLU Guide to Indian and Tribal Rights (New York, NY: New York Univ. Press, 2004), 32. Pevar suggests that negotiating treaties on behalf of the United States with Native nations was an economic strategy to avoid warfare and accumulate land. During the establishment years of the United States of America, most treaties with Native nations were treaties of peace and cessions of land.

15 always recognized Native standing.24 Frank Pommersheim argues, The United States’

Constitution recognizes tribal sovereignty, “but not as sovereigns who participated in its creation, its ratification, or its compact for governance.”25 Bruyneel theorizes that Native nations have constantly negotiated a “third space” which exists neither inside nor outside of the American political system.26 Federally recognized Native nations have constantly tried to create this space by negotiating their sovereignty. Wilkins describes federal Indian policy as being schizophrenic toward Native nations, which I suggest has created an atmosphere of contention that has required

Native nations to figure out how to operate both inside and outside of the American political system. 27

K. Tsianina Lomawaima and Teresa McCarty also employ a theoretical model to describe federal Indian policies and practices known as “safety zones.” According to Lomawaima and

McCarty, the safety zones represent “an ongoing struggle over cultural difference and its perceived threat, or benefit, to a sense of shared American identity.”28 Simply put, federal Indian policy has differentiated safe and dangerous Native life ways and reconstructed those boundaries

24 See Will Kymlicka, "Transitional Justice, Federalism, and the Accommodation of Minority Nationalism," in Identities in Transition: Challenges for Transitional Justice in Divided Societies, ed. Paige Arthur (Cambridge; New York: Cambridge University Press, 2011). Kymlicka argues that multinational federalism opens opportunities for self-determination, but states that Indigenous peoples have largely contested state jurisdiction legitimacy. Therefore a clear answer to whether transitional justice with impact Indigenous legal and political positions does not exist. Martin Papillon, "Adapting Federalism: Indigenous Multilevel Governance in Canada and the United States," Publius 42, no. 2 (2012). Comparing the Indigenous political position in the United States and Canada, Papillon argues that the foundation of each federal system has not changed rather a multilevel governance practice has been employed. With the Indigenous peoples in the U.S. not formally integrated into the federalism system, they have asserted self-determination rights through political arenas unlike in Canada, where they are integrated in the constitutional structure. See also Alexander Reilly, "A Constitutional Framework for Indigenous Governance," Sydney Law Review 28, no. 3 (2006). ; 25 Frank Pommersheim, Broken Landscape: Indians, Indian Tribes, and the Constitution (Oxford; New York: Oxford University Press, 2009), 38. 26 Bruyneel, The Third Space of Sovereignty: The Postcolonial Politics of U.S.-Indigenous Relations 27 Wilkins, Patterns in American Indian Constitutions, argues, “And why they’ve always maintained a schizophrenic position and attitude toward us, sometimes saying they support our right to be self-governing and sovereign and so on, while at the same time maintaining that they have the power to terminate us, to eclipse us, to dominate us, to confiscate, to do whatever they want.” 28 K. Tsianina Lomawaima and T. L. McCarty, "To Remain an Indian": Lessons in Democracy from a Century of Native American Education (New York: Teachers College Press, 2006), 6.

16 over time. Using Indigenous educational policy as evidence, the authors posit the safe zones were permitted to be a part of American life, such as, incorporating basket weaving and other variations of arts and crafts, and at other times using Indigenous language in educational materials to teach American values. The dangerous zones threatened American nationalism, such as, challenging federal control of Native education; displaying culture diversity counter to

American culture, and the asserting self-determination rights; thus, policies were adopted to marginalize Indigenous peoples. However, Native peoples challenged those safety zones in a variety of ways to impact change.

The Self-Determination policy has proven to be the most successful Indigenous initiative that the national government has adopted. President Richard Nixon signed the 1975 Indian Self-

Determination and Educational Assistance Act; also known by its legislative title, Public Law

(PL) 93-638, into law featuring the opportunity for Native nations to control the administration of services/ programs delivered to their citizens. The Act encourages federally recognized tribes to participate in self-governance through contracting/compacting services with minimal restraints from the Bureau of Indian Affairs (BIA). Specifically, the Harvard Project on American Indian

Economic Development (HPAIED) and the Native Nations Institute (NNI) have found that self- determination policies and a paradigm shift in self-governing practices among Native nations have led to successful (re)building efforts. Predominantly focusing on federally recognized

Native nations in the United States, HPAIED and NNI have found that five principles characterize nation building efforts: self-rule; effective institutions; culture match; strategic orientation; and dynamic leadership.29 Initially interested in why some nations were doing better

29 Stephen E. Cornell and Joseph P. Kalt, "Two Approaches to Economic Development on American Indian Reservations One Works, the Other Doesn’t," Joint Occasional Papers on Native Affairs (2005). HPAIED and NNI have also worked with First Nations in Canada, Aboriginal peoples in Australia, and Indigenous peoples in New

17 economically than others and after decades of research, Stephen Cornell and Joseph Kalt have found these nation-building principles transcend economics and include all aspects of good

Native governance. I believe my research builds on these principles demonstrating that state- recognized Native nations can engage in nation building efforts through a variety of strategies utilized in federalism arenas. State-recognized Native nations are limited in their ability to operate within the construct of the United States’ federalist system; however, it provides interesting arenas for state-recognized Native nations to have a voice that probably would not exist in any other political structure.

Federalism: The Division of Power and Authority in the United States

Federalism is the foundation to the United States’ political system. In every Introduction to Political Science or American National Government course taught on college campuses in the

U.S., federalism is discussed as a vertical distribution of power between national and state governments as illustrated in Figure 2.

National

State

Figure 2: U.S. Distribution of Powers Affirmed by the U.S. Constitution, neither national nor state governments derive their sovereign authority from the other. Framers of the Constitution conceived federalism as a mechanism to

Zealand all places where the concept of “federal recognition” does not exist, but have varying degrees of status that resemble federal-, state-, and non-recognition.

18 provide adequate checks and balances between governments to prevent tyranny.30 More importantly, the Founders utilized federalism as a structural strategy to balance power among states.

As federalism has developed over the centuries, however, two important facts about the

system have become clear. First, federalism’s very strength comes from its enormous

flexibility—its ability to adapt to new problems and political cross-pressures. Second, it

creates alternative venues for political action. Interests that fight and lose at the state

level have been able to find clever ways of taking their battles to the national

government. Losers at the national level have been able to refight their wars in the

states.31

Critical to this analysis, federalism provides political actors with various arenas to address, and hopefully, remedy political issues. According to Donald F. Kettl, federalism is a set of arenas

“equipped to broaden participation in the political process.”32 One strategy the national government has actively employed to extend across governments and push its agenda is to provide funding opportunities to local governments. If local governments oppose national agendas, local governments are perceived as refusing to access funding opportunities, providing more incentive to adopt the agenda despite contrary political convictions. As a contrast, states have presumably countered this extension by setting their own policies that filter up to the national government.33 Separate governments and strategies allow policies to be filtered down in a “top-down approach” or filtered up in a “bottom-up approach.” Therefore, as Kettl argues, we

30 "The Federalist Papers," Library of Congress, 2014, https://www.congress.gov/resources/display/content/The+Federalist+Papers. 31 Donald F. Kettl, "Federalism: Battles on the Front Lines of Public Policy," in Principles and Practice of American Politics: Classic and Contemporary Readings, eds. Samuel Kernell and Steven S. Smith, 3rd ed. (Washington, D.C.: Ringgold, Inc, 2006), 91. [Emphasis added] 32Donald Kettl, "Federalism: Battles on the Front Lines of Public Policy," in Ibid. Kettl identifies three federalism arenas: political, fiscal, and administrative. 33Ibid., 101.

19 must not view federalism as a set of rules or prescribed method of engaging governments, rather a set of arenas.34 I build on Kettl’s argument to include the exclusive tribal-national government- to-government relationship. We should not view this exclusivity as rules to engage one another, but identify federalism as providing sets of arenas where multiple levels of governments can engage to pursue specific interests. Government-to- Government Relationship Treaty Obligations Federally Recognized

National State

State Recognized

Figure 3: National Federalism Arenas Figure 3 represents four groups I have identified in the federalism structure. State-recognized

Native nations are often ignored, but I am arguing that we should pay more attention of how they are operating outside of the federal acknowledgement designation. One way to identify these arenas is by examining political actors who have managed to participate in them to push their own agenda, such as state-recognized Native nations.

Unfortunately, Native nations’ historical participation in establishing the federalism structure in the United States is routinely left out of the Introduction to Political Science and

American National Government literature. Indigenous peoples were instrumental in forming and

34 Ibid.

20 negotiating the federalist system, according to K. Tsianina Lomawaima.35 Lomawaima traces the conflict between national and state authority concerning Native peoples to the Proclamation of

1763 issued by the British Crown. Among the many things the Proclamation prohibited, including settlement on Indigenous land without permission and taxation, it placed the sole authority to acquire land with the Crown. Since its inception, Native nations have been at the center of legitimizing the United States governance system because of land and resources,

Lomawaima argues, all the while, the national government has tried to erase Native nations existence. Using two cases where the conception of federalism was contested the most, the events leading to the Revolutionary War and the Civil War, Lomawaima demonstrates that claims to Indigenous land and resources and the mechanisms that recognized such claims were the catalyst in establishing “federal and state standing as federalism’s partners.”36

The Revolutionary War was predicated on the imposition of taxes to regulate trade with

Indigenous peoples. The events leading up to the Indian Removal, which foreshadowed similar tensions that led to the Civil War, were entrenched with national contradictions relating to Native affairs. On the one hand, President Andrew Jackson and the state of Georgia refused to recognize national treaties with Native nations, which eventually led to the passage of the 1830 Indian

Removal Act that sent Native nations west of the Mississippi to “Indian Territory”, present-day

Oklahoma. On the other hand, President Jackson’s opposition to South Carolina’s threat to secede and nullify national policies was based on the state’s violation of the Supremacy Clause in U.S. Constitution, the very clause that upholds national law and treaties as the supreme law of the land; the very clause he neglected to defend when he was pushing for Indigenous removal.

35 K. Tsianina Lomawaima, "Federalism: Native, Federal, and State Sovereignty," in Why You Can't Teach United States History without American Indians, ed. Susan Sleeper-Smith (Chapel Hill, NC: The University of North Carolina Press, 2015). 36 Ibid., 278.

21 These events demonstrate how the tug-of-war between the competing interests of national, state, and Native governments has exploited varied arenas within federalism to get things done. We cannot discuss federalism in the United States without addressing how Native nations played a role in developing its structure. Moreover, we should not assume that Native nations are excluded from participating in a system founded on Indigenous affairs. The question then becomes: In what ways, can Native nations serve as political actors to build their communities by recognizing competing interests and working within various arenas of federalism to get things done? I think some answers lie within strategies used by state-recognized communities, because non-recognized Native nations have not been prescribed to an exclusive relationship; therefore, they have had to participate in political arenas in their exercise of self- determination. Serving as political actors, state-recognized Native nations have exploited the flexibility of federalism arenas and have not based their interactions solely on the hierarchy and verticality of the structure.

A Wave of New Federalism

The national government has used its plenary power to insert states into the exclusive tribal-national government-to-government relationship on various occasions, creating a wave of

“new federalism” or “forced federalism” where states are relating to Native nations in more ways than they in the past.37 Forced federalism has occurred on a variety of occasions, for example,

Public Law 83-280 and the Indian Child Welfare Act, but the passage of the Indian Gaming

Regulatory Act initiated the “institutionalization” of tribal-state relationships, which requires each party to negotiate a compact agreement.38 “As a result of IGRA [Indian Gaming Regulatory

37 The term “new federalism” is often referred to as the devolution of power from the national government to states. 38 Corntassel and Witmer, Forced Federalism: Contemporary Challenges to Indigenous Nationhood, 16.

22 Act] in 1988 and the subsequent transfer of federal powers to state governments, indigenous nations have now been forced into dangerous political and legal relationships with state governments that challenge their cultures and nationhood status.”39 Even though Supreme Court cases, the U.S. Constitution, and federal polices have affirmed that an exclusive relationship exists, Native nations, in an effort to assert their sovereignty, are interacting with states, counties, and other governments to address their own needs. Government-to- P.L. 280 Government ICWA Relationship IGRA Treaty Obligations Federally Intergovernmental Recognized Agreements

National State

State Recognized

Figure 4: Tribal-State Federalism Arenas Scholars are arguing that this level of engagement is a systemic approach of forced federalism.

Figure 4 provides a few examples of arenas in which federally recognized and states are participating in outside the exclusive government-to-government relationship. As more federal legislation includes tribal-state collaboration, the exclusive relationship parameters are muddled.

The changing landscape of federalism has prompted the development of various strategies to exercise tribal sovereignty outside the exclusive government-to-government relationship. Erich Steinman declares, “Conversely, it [legal and political ambiguity regarding tribal status and rights] also has provided an opportunity for states and tribes to experiment and

39 Ibid., 5. [Emphasis in original]

23 innovate politically, thereby exploiting one of the strengths of federalism.”40 Federalism provides an opportunity for Native nations to leverage competing agendas to rearrange what they can accomplish. When we study state-recognized relationships more carefully, we may find strategies that federally recognized Native nations have employed and may offer other possibilities where conflicts exist.41

State Recognition: An example of tribal-state relationships

Although state-recognized Native nations are perceived to be handicapped compared to federally recognized Native nations in their strategies and the availability of resources to assert their sovereignty, some have persevered despite an inability to establish a direct relationship with the national government. Frequently, state-recognized Native nations are developing significant relationships with their home states and other entities to provide social and educational services, and economic development opportunities. I examine the various strategies implemented by state- recognized Native nations to assert their rights to self-determination.

Historically, Native nations have actively asserted the exclusive government-to- government relationship, while insisting that the states do not interfere. During the early national period, states insisted that Native communities within state boundaries be removed altogether.

According to Deborah A. Rosen, “[i]n their [states’] view, the presence of separate Indian communities within the state impeded white settlement, migration, use of natural resources, and

40 E. Steinman, "American Federalism and Intergovernmental Innovation in State-Tribal Relations," Publius- Philadelphia then Denton TX- 34, no. 2 (2004), 96. 41 See David E. Wilkins, "Reconsidering the Tribal-State Compact Process," Policy Studies Journal 22, no. 3 (Autumn, 1994).; Susan Johnson et al., Government to Government: Models of Cooperation between States and Tribes (Denver, Colorado; Washington, D.C.: National Conference of State Legislatures; National Congress of American Indians,[April 2009]).; Susan Johnson et al., Government to Government: Understanding State and Tribal Governments (Denver, Colorado & Washington, D.C.: National Conference of State Legislature & National Congress of American Indians,[June 2000]).

24 implementation of transportation projects.”42 Rosen recognizes that the states were actively pursuing the removal of Native nations because of what was perceived to be a hindrance of

“progress.” Moreover, the ability of the national government to maintain and assert authority over Native nations within the boundaries of states was seen as a restriction of state power. This tug-of-war for power created an atmosphere of contentious relationships between states and

Native nations leading to the deadliest enemy notion.

Some Native nations and states have not always been deadly enemies. Some Native nations have developed a political relationship with states in order to maintain their system of self-governance and to ensure provisional services to their communities. However, much of the literature does not accurately reflect what exactly state-recognized Native nations are doing for their communities outside the purview of federal recognition. Brian Klopotek recognizes the gap in the research addressing federally recognized Native nations and those nations in a quasi- acknowledged status.43 “While federal Indian policy occupies many uneasy spaces between tribal sovereignty and plenary power, the significant issue to contemplate is the implication of semi- sovereign trust status for tribes trying to achieve recognition.”44 Because the national government has not established a government-to-government relationship with all Native nations, some Indigenous communities have taken the opportunity to establish working relationships with their home states to address their concerns. Examining this relationship offers the opportunity to extend the literature of tribal-state relationships. This examination does not suggest, nor am I arguing, that all state relationships are created equal. State-recognized Native

42 Deborah A. Rosen, American Indians and State Law: Sovereignty, Race, and Citizenship, 1790-1880 (Lincoln: University of Nebraska Press, 2007), 15. 43 Klopotek, Recognition Odysseys: Indigeneity, Race, and Federal Tribal Recognition Policy in Three Louisiana Indian Communities 44 Ibid., 22.

25 nations do not occupy a space of utopia with local and state governments.45 It is a constant struggle to be acknowledged or included to make decisions affecting their people, but communities have successfully accomplished it—which is the focus of this research. Koenig and

Stein assert:

While opponents argue that state recognition cannot stand in as a relevant political

classification because it is not as ‘formal’ as federal recognition (in part because criteria

for state recognition vary dramatically from state to state), even the federal government

has recognized that states have the authority to officially recognize tribes. By extending

some federal benefits to state-recognized tribes on the basis of their classification as

state-recognized, the federal government has arguably legitimized state recognition, and

thereby validated state recognition as a classification.46

This devolution of power created a situation in which state-recognized Native nations have had to adapt and adopt various strategies to ensure the well being of their communities.47

Koenig and Stein in their survey of state recognition processes argue that state recognition is an alternative to federal recognition with its obvious limitations but neglect to show how state recognition works in practice. The few studies of state-recognized Native nations suggest that non-federally recognized Native nations are seeking state recognition as an alternative form of the exclusive tribal-national government-to-government relationship. In 2008,

45 See Colin Woodard, "An Unlikely Handshake Alters the Course of Maine’s History," Portland Press Herald. May 19, 1964. 46 Koenig and Stein, "Lost in the Shuffle: State-Recognized Tribes and the Tribal Gaming Industry," 368. 47 Cultural adaptation is not unique to state-recognized communities. Benedict J. Colombi and Courtland L. Smith, "Insights on Adaptive Capacity: Three Indigenous Pacific Northwest Historical Narratives," Journal of Northwest Anthropology 48, no. 2 (2014), 189–202. Colombi and Smith provide three examples of how Native nations have culturally adapted to change exemplifying adaptive capacity. “The stories reveal strategies of developing portfolios with multiple sources of economic support, using sovereignty, vision, and leadership, building trust and partnerships, and gaining knowledge to confront surprises and unanticipated futures” (189). These strategies are among those used by state-recognized Native nations. See also Benedict J. Colombi, "Salmon and the Adaptive Capacity of Nimiipuu (Nez Perce) Culture to Cope with Change," American Indian Quarterly 36, no. 1 (2012).

26 the authors identified 62 state-recognized Native nations and argued, “[m]uch like federal recognition, it [state recognition] operates as a means for states to acknowledge the longstanding existence of tribes within their borders and to establish a government-to-government relationship to coordinate and communicate with tribes.”48 Koenig and Stein propose that the complications of the federal recognition process have forced tribes to negotiate a government-to-government relationship with other entities, like various states. State-recognized Native nations continue to develop sophisticated avenues to assert tribal sovereignty outside the parameters of federal recognition. Moreover, some state-recognized Native nations are reframing the government-to- government relationship. Nevertheless, the literature does not focus on the actual on-the- ground—de facto sovereignty—that state-recognized Native nations are asserting within their state relationships.

The criteria of state recognition differ from state to state. Koenig and Stein explain, “In the last few years, states and tribes have increasingly realized that state recognition can serve as an important, albeit limited, alternative to federal recognition.”49 State-recognition forces Native nations to reinforce their systems of governance to build or maintain their community within the tribal-state relationship model. Koenig and Stein note the various recognition processes adopted by states to identify a Native nation and suggest that the recognition process in North Carolina,

South Carolina and Virginia serve as ideal models. 50 However, the authors do not address why.

Critics of the state acknowledgement process argue that recognition is a national function and states should be excluded from the process based on the United States Constitution.

48 Alexa Koenig and 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," Santa Clara Law Review. 48, no. 1 (2008), 86. 49 Ibid., 83. 50 Ibid., The authors document that states have recognized tribes through state law, administrative recognition, legislative recognition or executive recognition.

27 According to Koenig and Stein, the national government recognizes state authority by providing benefits to those state-recognized Native nations.51 The Indian Commerce Clause asserts that the national government has a direct relationship with Native nations, which completely and systematically preempts states and their authority to influence federally recognized Native nations. “State recognition of tribes is an important experiment in federalism that allows states to respond to the needs of its tribal inhabitants and establish government-to-government relationships for mutual benefits.”52 Analyzing the efficacy of state recognition should happen on an individual state and Native nation basis. The question remains, how do non-recognized and/or state-recognized Native nations in the U.S. build community? I have provided two examples of state-recognized Native nations, the Lumbee and Waccamaw, and how they have developed a relationship with their home state over time to build their community.

Case Studies: Lumbee and Waccamaw Indian People

Many scholars have documented the Lumbee Tribe of North Carolina’s quest for federal recognition.53 The Lumbees are located in the Southeastern region of North Carolina and form the largest non-federally recognized nation east of the Mississippi River with 55,000 enrolled members. The Lumbees are the descendants of an amalgamation of various small

Indigenous communities throughout the region. Anne Merline McCulloch and David E.

Wilkins state, “According to Robert K. Thomas, the noted Cherokee anthropologist,

51 Ibid., 93. 52 Ibid., 149. 53 See Karen I. Blu, The Lumbee Problem: The Making of an American Indian People, Vol. 5 (Cambridge; New York: Cambridge University Press, 1980).; Lowery, "Telling our Own Stories: Lumbee History and the Federal Acknowledgment Process," 499-522; Malinda Maynor Lowery, Lumbee Indians in the Jim Crow South: Race, Identity, and the Making of a Nation (Chapel Hill: University of North Carolina Press, 2010).; McCulloch and Wilkins, "'Constructing' Nations within States: The Quest for Federal Recognition by the Catawba and Lumbee Tribes," 361-388; Gerald M. Sider, Lumbee Indian Histories: Race, Ethnicity, and Indian Identity in the Southern United States, Vol. 2 (Cambridge England ; New York, NY, USA: Cambridge University Press, 1993), 309.

28 genetically the Lumbee people are the descendants of remnants of several small Southeastern tribes: the Hatteras, Saponi, and Cheraw, who from the 1780s through the 1840s worked their way into Robeson County where they intermarried and gradually developed a distinctive tribal identity."54 McCulloch & Wilkins suggest because the Lumbees did not negotiate treaties with the colonies and later the United States, their legitimacy as a Native nation is often questioned.

Even though the Lumbees developed a political relationship with the state of North Carolina in

1885, the scholarship does not adequately examine the contemporary consequences of this historical relationship.

Most of the Lumbee literature focuses on identity and federal acknowledgement and pays little attention to the Nation’s ability to accomplish things with the state recognition designation. In 1790, the United Stated census considered Lumbees as among "all other free persons of color.” 55 The term "free persons of color" classified the Lumbees as neither white nor black. Once segregationist policies intensified at the end of the nineteenth century, the white schools denied Indian children access and the Lumbee parents refused to send their children to the black schools. They sought redemption in a petition for state recognition to establish a separate school system for their children. This remedy is just one example of the

Lumbees utilizing alternative arenas within federalism to get things done. The local school district neglected to provide suitable educational opportunities for Lumbee children; therefore, the parents serving as political actors negotiated with the state to provide a separate school system. Their petition to create a separate system also identified the Lumbees as a separate

54 McCulloch and Wilkins, "'Constructing' Nations within States: The Quest for Federal Recognition by the Catawba and Lumbee Tribes," 371. 55 “Origins.” 2009. Lumbee Tribe of North Carolina. (http://www.lumbeetribe.com/History_Culture/History_Culture%20Index.html#Reports accessed 12 May 2009). The website no longer feature portions of the reports.

29 “Indian” community. The 1885 legislation recognized the Lumbee community and began the tribal-state relationship.

In the South, the white community, to perpetuate racial subordinate statuses used a black-white binary to group all non-whites into the black category with any drop of blood, also known as the “one-drop rule”.56 Patrick Wolfe argues that the black and Indigenous racialization experience is comparable in that both are redefined when social spaces are

“threatened to be shared”, but always to maintain white privilege.

The analogy ends here, however, since, though their sharing of social space with

whites led to both being (re-)racialized, the forms that the respective racializations took

were diametrically opposed, in a manner that reflected and preserved the foundational

distinction between land and labor. For, whereas race for black people became an

indelible trait that would survive any amount of admixture, race for Indians became an

inherently descending quantity that was terminally susceptible to dilution.57

Indigenous populations sought to resist the white-black binary by distinguishing themselves from either community through social institutions. Creating parallel institutions was a common strategy to create such distinction. This strategy was not solely Native specific. During the

Reconstruction Era, “Chinese immigration was encouraged as a means of increasing white political power by displacing voting Negroes; for the Chinese, it was expected, would not vote, as he did not in California.”58 The Chinese who immigrated to the Mississippi Delta for economic purposes found themselves in the same classification as the black community.

However, the whole purpose for Chinese immigrants in Mississippi was to displace black

56 Patrick Wolfe, "Land, Labor, and Difference: Elementary Structures of Race," The American Historical Review 106, no. 3 (2001), 866-905. 57 Ibid., 887. 58 James W. Loewen, The Mississippi Chinese: Between Black and White, Vol. 63 (Cambridge, Mass.: Harvard University Press, 1971), 23.

30 voters and maintain white control. This binary system facilitated a need for “others” (anyone outside of the binary) to establish “distinctiveness” in these communities. Because the white community viewed the Chinese as having the same status as the black community, to differentiate themselves the Chinese began to create their own social institutions, e.g. schools and churches. 59 For the Chinese, this strategy served as a social acculturation process. The

Lumbees, on the other hand, I would argue employed this strategy to assert their right to self- determine.

Lumbees as political actors have developed the tribal-state relationship to pursue specific agendas to meet the community’s needs. The relationship has not always been successful given the race politics of the South, but Lumbees continued to assert themselves in local, state, and federal politics to attempt to ensure their needs are met. One successful contemporary strategy to address a need within the community was the adaptation of the pre- existing North Carolina Juvenile code to acknowledge state-recognized communities concerning Native children welfare. Lumbees were able to assert their political influence in the state General Assembly to have their children considered by coordinating efforts to provide for the welfare of the children that are neglected in the federal legislation (the Indian Child

Welfare Act/ICWA) because they are not federally recognized. This strategy highlights the complexity and flexibility of federalism because of the hybrid bottom-up/ top-down approach.

Federally recognized Native nations fought for the passage of ICWA as part of a bottom-up approach. The problem, at least only considering its constituency, is that the legislation neglects other Indigenous peoples. Lumbees worked with local, state, and national agencies to pass the North Carolina legislation; and other state-recognized Native nations using a multi- tiered approach, and applying strategies available through federalism arenas.

59 Ibid., 83.

31 The experience of the Waccamaw Indian people was slightly different from that of the

Lumbee. Little research exists on the Waccamaw Indian People.60 Historian Forest Hazel’s historical account of the Waccamaw people includes a similar story of Native communities creating a space in a racially segregated Southeast. The Waccamaw Indian People are located outside of Aynor, South Carolina, historically residing in what is known as the “Dimery

Settlement” in Horry County. In 2005, the State of South Carolina acknowledged the Waccamaw

Indian People as one of the first state-recognized Native nations in the state.

Hazel’s account suggests the Waccamaw Indian People have pursued a form of collective action similar to that taken by to the Lumbees in North Carolina. A man named “John Dimery first appears on the Horry County Census in 1820 as a ‘free person of color.’”61 Identical to the

Lumbee designation of “free person of color,” this designation also allowed the Waccamaw people to navigate their position in the South. “A school also existed in the Settlement at least since 1909. It was apparently referred to as the Dimery School in its early years, although the official name in the county records was Pine Level School.”62 According to Hazel, the local school district attempted to classify the school as “colored,” but when the parents living in the

Dimery settlement found out, they withdrew their children from the schools and requested to have the county board fix the classification.63 Unlike the Lumbees, the Waccamaw people did not have a formally established school system for their children, but the Waccamaw still contested the classification of their children as “colored.” Even though there are parallels between the Lumbee and Waccamaw examples, there are significant differences between the two political relationships with each state. Waccamaw have been able to pursue political agendas to

60 See Forest Hazel, "The Dimery Settlement: Indian Descendants in the South Carolina Low Country," The Independent Republic Quarterly 29, no. 4 (Fall 1995). 61Ibid. 62Ibid. 63Ibid.

32 influence state legislation as well, but have not been able to successfully utilize alternative arenas as a strategy to advance their interests yet. One example of the state relationship is the exception made for a state-recognized artist to use and sell wild turkey feathers in their arts and crafts, which state law otherwise prohibits.

Both of these case studies demonstrate persistence within these communities to ensure the state not only recognizes the Native population, but also makes accommodations to perpetuate their right to self-determine as an alternative to the exclusive tribal-national relationship. These communities are able to get things done because of their state recognition status and their active efforts to engage state politics and federalism arenas.

Research Questions

• My research question focus on how state-recognized Native nations develop relationships

with their respective state outside the purview of federal recognition and the Federal

Acknowledgement Process (FAP) to engage in nation building efforts?

• In what ways have state-recognized Native nations created functional political

relationships with federal and non-federal entities, including states and counties?

• How do Indigenous peoples accumulate and exercise political influence, absent federal

recognition?

• How has federalism provided alternative arenas where state-recognized peoples can

negotiate political agendas?

Methodology

33 My dissertation utilizes a qualitative research method designed as a comparative case study of state/ state-recognized Native nation relationships. I used an ethnographic and historic approach to address the basic questions about state-recognized Native nations’ governing structures and strategies, such as the historical relationship with each home state as well as the evolution and the assessment of that relationship. Koenig and Stein illustrate in their survey of state recognition processes that these relationships have taken place in three distinct periods: pre- revolution, post-revolution, and modern.64 My research examines and compares two state- recognized Native nations and their relationships in North Carolina and South Carolina respectively through two of the three periods. 65 The Lumbees’ political relationship with the state of North Carolina in 1885 fits the post-revolution period, whereas the Waccamaw Indian

People’s formal political relationship with South Carolina in 2005 matches Koenig and Stein’s classification of the modern period.

My data gathering required archival research in state and local archival repositories in addition to consulting state and local newspaper articles and public records, which included state legislation and appropriations. In an effort to respect the sovereign status of each Native nation, I have followed tribal protocol, requesting and receiving formal letters from both the Lumbee

Tribe and the Waccamaw Indian People agreeing to collaborate with me for my research. The most culturally appropriate way to document best practices implemented by Native nations is to allow the people to tell their stories, struggles, and strategies to address the needs of their community and to consider the advantages and disadvantages of these relationships. My

64 Koenig and Stein, "Federalism and the State Recognition of Native American Tribes: A Survey of State- Recognized Tribes and State Recognition Processes Across the United States," 96. The authors define the modern period as the latter half of the twentieth century. 65 Initially, I proposed to examine another nation that was recognized in the pre-revolution period to have examples representing each of the three periods. After several attempts to reach the Chief, I was able to speak with him on the phone and he informed me that they were in the process of submitting a petition for federal acknowledgement. Our conversation ended with him offering to send my proposal to their attorney. The Chief eventually declined to participate in my research because of the possibility of it interfering with their federal acknowledgement petition.

34 questions were structured around, but not limited to, how the state-recognized Native nations and their home states viewed their relationships; how they define sovereignty; how they define community (from a state perspective and a Native nation); how and in what ways the Native nations functioning; and how the states and state-recognized Native nations view the differences between federal and state recognition?

Participation was completely voluntary and participants were asked to sign the

University of Arizona’s Institutional Review Board (IRB) consent forms. I interviewed 17 people representing Lumbee, Waccamaw, South and North Carolina. Because of the disproportionate size of the Lumbee and Waccamaw tribal membership, I have a larger interview set from the Lumbee/North Carolina relationship than the Waccamaw/South Carolina. In addition, being from the Lumbee community, people were willing to talk with me because of my familial connections. Although I think I created a strong rapport with the Chief of the

Waccamaw Indian People and state officials, without having those connections within the community it was difficult to recruit people to participate. I knew it would be a challenge to solicit participants because of my position as an outsider of the community. I believe I have accurately represented the Waccamaw leadership and state officials within the Waccamaw/South

Carolina relationship, nonetheless.

My method consisted of a three-phase data collection process:

Phase one: Public information was gathered from the State of North Carolina and South

Carolina websites, and the Lumbee Tribe’s and Waccamaw Indian People’s websites, North and

South Carolina executive orders/ agreements, inter-tribal councils/ organizations, archival material in the North and South Carolina State Libraries, and local libraries in Pembroke, North

Carolina and Conway and Aynor, South Carolina. Archival research in state and local

35 repositories included policies, hearings, court cases and newspaper articles, as well as state and local newspaper articles and public record data. I conducted semi-formal audio-recorded interviews from the local community members to identify relevant non-public office holding community leaders.

Phase two: I conducted interviews with key personnel and officials of both North and

South Carolina and the Lumbee Tribe and Waccamaw Indian People. I interviewed at least one tribal official to represent the Native nation’s perspective of the relationship, at least one community leader, and at least one state official to identify the state’s experience with the relationship. I provided a copy of the transcripts to each of the participants for their review.

Phase three: The questions I asked were categorized into five topic areas: tribal-state relationships, sovereignty, recognition, community, and leadership. Figure 5 illustrates the topic areas. The individual columns identify the themes generated from each of these topic areas. My document analysis consisted of coding for keywords such as church/spirituality, community, culture, education/schools, family, federal, hybrid, leadership, political influence, race, and state as illustrated in Figure 5.

36 Tribal-State Sovereignty Recognition Community Leadership Relationship

Schools Education Community State

Spirituality

Race Hybrid Schools

Family

Political Federal Influence Church • Size Culture • Voting

Figure 5: Interview Topics and Themes I constructed a list of correlating systems of tribal governance, strategies and additional information on the programs and services available for each Native nation.

I do not presume that this study is exhaustive of all state-recognized Native nations in the

United States, but I hope to provide a better picture of how they are functioning within the

American federalist system. I think that my research will be significant for Native communities

(both federally and state-recognized) in a number of ways. I emphasize state-recognized Native nations taking control of their communities versus petitioning for federal acknowledgement to highlight actions that reflect an assertion of rights to self-determine.

My dissertation is organized as followed: Chapter Two examines the historical nature of federal recognition and the definition of government-to-government relationship. Because so much research focuses on federally recognized Native nations and since the main objective of my research is to analyze state recognition, I limited my discussion in this chapter to only establish a foundation for comparing state recognition to federal recognition. Chapter Three

37 addresses state recognition by analyzing the processes for achieving state-recognition in North and South Carolina; the advantages of this classification; and then I provide a snapshot survey of three other state-recognized, and one non-recognized, Nation nations. Chapters Four and Five provide case study analyses of the Lumbee Tribe of North Carolina and Waccamaw Indian

People of Aynor, South Carolina. Each case includes sections on the history of the Native nation, the development of the political relationships with each state, and what these nations have accomplished with these relationships. Chapter Six includes an analysis of my data, which examines the commonalities and differences with each relationship. I also identify strategies, keys to success, challenges, and unexplored opportunities for the two cases. I provide two success stories of how state-recognized Native nations have developed relationships with their respective home state outside the purview of federal recognition and have created functional political relationships with federal and non-federal entities, including states and counties; and have asserted the same rights to self-determine as federally recognized Native nations.

Definitions

Throughout this dissertation, I consciously use the words Native nation or community in place of tribe because of the negative connotations that suggest that “tribes” are primitive or uncivilized. I utilize the phrase Native nation when referencing state-recognized peoples to emphasize (despite their classification) that they are inherently sovereign. There is one exception where I use “tribal-state relationships” only to associate the reader with the well documented literature that defines the phrase as a representation of intergovernmental cooperation and collaboration. When discussing the federal government, I chose to use national and federal interchangeably just to break up the monotony especially when discussing federalism. My

38 interview participants used tribe and Indian in their stories and to ensure the integrity of their accounts, I did not alter their words.

39 CHAPTER TWO: RESTRUCTURING THE GOVERNMENT-TO-GOVERNMENT RELATIONSHIP

Native nations have sought to maintain their political identity separate from the United

States since European contact. Wilkins describes Native nations’ political position as both pre- and extra-constitutional to the United States because of their sovereign status.66 According to

Stephen Pevar, “[t]ribal governments have the same powers as the federal and state governments to regulate their internal affairs, with a few notable exceptions.”67 Federal acknowledgement establishes a political relationship (government-to-government) recognizing a Native nation’s ability to self-govern.68 On multiple occasions, the Supreme Court has affirmed the national government’s authority to “recognize” or “acknowledge” an indigenous community as a separate political entity.69 Federal acknowledgement has evolved over time to varying degrees, all reinforcing the concept of Congressional plenary power.70 However, the strategy to relate with and across governments has changed for Native nations. Traditionally, states did not engage with

Native nations because of their exclusive relationship with the national government. A shift has occurred in this relationship. States are relating with tribal governments more than they have previously. This chapter will discuss the historical context of federal acknowledgement, the current FAP process, how non-federally recognized indigenous people view the classification, and the shift in relations between federally recognized Native nations and states.

66 Wilkins, American Indian Politics and the American Political System, 64. 67 Pevar, The Rights of Indians and Tribes: The Authoritative ACLU Guide to Indian and Tribal Rights, 88. Pevar explains Native nations self-government limitations as expressed and implied, “Congress has expressly prohibited tribes from exercising certain powers, such as selling tribal land without the federal government’s permission and incarcerating someone in tribal jail for more than a year for any one offense.”67 Implied limitations center on the implications of doctrine of discovery and “domestic dependent” status. 68 United States, Executive Order No. 13175: Consultation and Coordination with Indian Tribal Governments, November 9, 2000. 69 Both terms are used interchangeably. 70 Wilkins and Lomawaima, Uneven Ground: American Indian Sovereignty and Federal Law The authors explain plenary power implemented by the United States as exclusive with Congress and not the states.

40 Who Decides?

Early on in U.S. history, the Supreme Court asserted that the process of recognition fell within the jurisdiction of the national government. As William W. Quinn, Jr. explains,

"Recognition of tribes by the United States, and what criteria determined such recognition, were issues in U.S. Supreme Court cases immediately following the Civil War."71 In the 19th Century, the Supreme Court held that ability to engage in a government-to-government relationship lies with the legislative and executive branches. In the 1865 case involving the criminal prosecution of an American citizen for selling liquor to a “Michigan Chippewa,” U.S. v. Holliday,72 the Court stated that, “If by them [the executive and legislative branches] those Indians are recognized as a tribe, this court must do the same.”73 Ultimately, the Court ruled that the national government has the authority to enact laws that regulate liquor traffic among Indigenous people and, as a result, has the authority to determine which communities are or are not recognized.

Holliday set a recognition precedent for the In re Kansas Indians74 case in 1866. In the

Kansas Indians case, the state sought to tax individual members of the Shawnee, Wea, and Miami nations. While both the state and the Supreme Court recognized the communities as “Indian,” the issue raised was whether the Office of Indian Affairs (now the Bureau of Indian Affairs) acknowledged them. The court ruled that, “If the tribal organization of the Shawnees is preserved intact, and recognized by the political departments as existing, then they are a ‘people distinct from others,’ capable of making treaties, separated from the jurisdiction of Kansas, and to be governed exclusively by the government of the Union.”75 Both cases upheld federal jurisdiction and the

71 Quinn, Federal Acknowledgment of American Indian Tribes: The Historical Development of a Legal Concept, 334. 72 U.S. v. Holliday 70 U.S. 407, 18 L.Ed. 182 (1865) 73 Holliday, quoted in Ibid., 345. 74 In re Kansas Indians 72 U.S. 737, 18 L.Ed. 667 (1866) 75 In re Kansas Indians 72 U.S. 737, 18 L.Ed. 667 (1866), quoted in Ibid., 346.

41 inherent sovereignty of Native nations documented in the Cherokee Nation v. Georgia76 case.

Therefore, once the national government recognizes Native nations, neither the state of Kansas nor any other state has jurisdiction over them. The exclusive authority to interact with Native nations was established as a federal function that continues to be adhered to today.

During most of the settlement period, European countries and the United States interacted with Native nations in part through treaty negotiations. Those treaties served as a form of recognition. 77 Some Native communities, especially in California, negotiated treaties with the

Executive or its representative without Senate ratification. In some instances, the unratified treaties have equaled non-recognition status in the eyes of the national government. However, not all Indigenous people negotiated treaties. In 1871, Congressional legislation automatically placed Indigenous communities that lacked political and legal relationships into the general framework of American citizenship. “Throughout the nation federal officials often overlooked many viable Indian tribes and peoples, seeing them as simply too weak, dependent, or numerically insignificant to bother with.”78 It would appear that Native nations without treaties are disenfranchised because of Congress’s unilateral legislation to end treaty making with all

Native nations; however, Indigenous communities continue to relate with the federal government using other methods. While Congress decided it would no longer negotiate treaties, Executive

Branch orders and agreements were utilized to force Native peoples to cede land.

Federal policy between 1871 and 1934 promoted the destruction of indigenous culture to assimilate Natives into mainstream society. In 1887, the United States tried to rid itself of the

“Indian problem” by forcing the adoption of Western-farming techniques on individually allotted

76 Cherokee, see supra note 20 77 Mark Edwin Miller, Forgotten Tribes: Unrecognized Indians and the Federal Acknowledgment Process (Lincoln: University of Nebraska Press, 2004), 26. Miller explains that treaties are a “confirmation of self-government” for Native nations. 78 Ibid., 27.

42 lands. The main goal behind the Allotment Act, also known as the Dawes Act, was to break up communally held land into individual fee allotments of uniform acreage. In return, the “surplus” land was sold for non-Native use. An effort to stop the devastating effects of allotment culminated in the passage of the Indian Reorganization Act (IRA) of 1934. The IRA provided a way for Indigenous communities to request the BIA place land into trust. The Act also established a process for non-recognized Indigenous communities to petition for recognition. The

BIA would measure “Indianness” according to a ½ blood or more criterion in order to confer federal acknowledgement status.

Until the mid-20th century, there was no defined process to establish a political relationship between Native nations and the federal government. The BIA adopted regulations in

1978 to assist non-recognized communities to petition for federal acknowledgement. Since then,

Native nations have been acknowledged through the Legislative Branch via Congressional legislation; the Judicial Branch via court order; or the Executive Branch via the Federal

Acknowledgement Process (FAP) administered by the BIA. Under FAP guidelines, the following seven criteria must be met by petitioning parties to receive federal recognition:

(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. In the absence of a written document, the petitioner must provide a statement describing in full its membership criteria and current governing procedures; (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; and

43 (g) Neither the petitioner nor its members are the subject of congressional legislation that has expressly terminated or forbidden the Federal relationship.79

Over time, amendments to the criteria have been adopted in an attempt to provide an accurate model of the diversity among Native communities. The most recent amendments change the baseline “start date” to 1900 for all petitioners to demonstrate Native identification, community existence, and political authority.80 The previous regulations were unevenly applied depending on settler contact.

Despite the different ways to petition for recognition, the three branches still use the FAP criteria as a guide. Challenges to the FAP have occurred since inception. Much of the federal acknowledgement literature criticizes the criteria as overgeneralizing Native people.81 Scholar

Mark Edwin Miller argues, “The general process of acknowledging tribes has always been based in part on legal fictions and cultural stereotypes about Native Americans. Because it relies on judgments of fallible individuals, subjectivity is at the bedrock of the process.”82 In other words,

FAP remains in the hands of people with a lot of power and discretion to interpret the regulations without fully taking into account the historical experiences of the diverse communities petitioning for recognition. Mashpee filed suit arguing the unlawful taking of land during 1834 and 1870.83 The U.S. Court of Appeals in Mashpee v. New Seabury et al. required that the

Mashpee identify as a distinct Indian community over six different periods (1790, 1834, 1842,

1869, 1870, & 1976) to demonstrate the continuity as required by the criteria. The jury in the

79 Mandatory Criteria for Federal Acknowledgment, Code of Federal Regulations, Title 25 (2008): Section 83.7 80 Information Fact Sheet, Final Rule for 25 CFR Part 83: Acknowledgment of American Indian Tribes, 2015. 81 McCulloch and Wilkins, "'Constructing' Nations within States: The Quest for Federal Recognition by the Catawba and Lumbee Tribes," 361-388 ; David E. Wilkins, "Breaking into the Intergovernmental Matrix: The Lumbee Tribe's Efforts to Secure Federal Acknowledgment," Publius 23, no. 4 (1993), 123-142. 82 Miller, Mark Edwin. Forgotten Tribes: Unrecognized Indians and the Federal Acknowledgment Process (Lincoln: University of Nebraska Press, 2004), 8. 83 In 1790, Congress passed legislation Indian Nonintercourse Act making it illegal to negotiate a land exchange without a treaty pursuant to the United States Constitution. The U.S. Constitution grants the President the authority to negotiate a treaty and the Senate ratifies such treaty.

44 preliminary trial to determine tribal status found that the Mashpee constituted an “Indian tribe” in

1834 and 1842, but did not meet the “tribe” standards in the other aforementioned years. The

Mashpee holding stated, “the evidence and inferences were sufficient to support a jury finding that what was a tribe in 1842 had voluntarily assimilated into the general society by 1869.”84 The jury in the Mashpee case assumed that indigeneity meant all or nothing in terms of continuity of culture and tradition.

The acknowledgement process ensures that the federal government decides who can identify as Native and, as a result, be placed in the tribal-national government-to-government relationship. There are advantages to establishing such relationship and reasons why Indigenous communities continue to support such a flawed process. Brian Klopotek analyzes the pursuit of federal recognition for three Louisiana Native communities and explains that, “[the] Tunica-

Biloxi and Jena Choctaw histories suggest that the federal acknowledgement process, despite being burdensome to tribes and loaded with ideological assumptions, roadblocks, and political agendas, can also lead to an array of generally positive outcomes if the United States recognizes a tribe at the end of the process.”85 Federally recognized Native nations gain access to resources that others do not. These resources often mean creating opportunities in communities where otherwise, do not exist.

The Argument Remains the Same: Federal Acknowledgment Opens Doors

Despite the flawed process, many state- and non-recognized Native nations and their members continue to view federal acknowledgement as the ultimate status to achieve. So, what are Native nations able to do with federal recognition? In addition to the list I included in

84 Mashpee v. New Seabury et al, 592 F.2d 575 (1979) 85 Klopotek, Recognition Odysseys: Indigeneity, Race, and Federal Tribal Recognition Policy in Three Louisiana Indian Communities, 197.

45 Chapter One, federally recognized Native nations have several advantages, including, but not limited to: treatment as states under the Clean Air and Water Acts, and for tax purposes with the

Internal Revenue Service (IRS); tax; sovereign immunity; ability negotiate compacts with states to engage in gaming activities;86 and access to federal programs such as Indian Health Services,

PL 638 contracting, Federal Emergency Management Agency (FEMA); to name a few. All of these advantages explicitly recognize Indigenous self-governing authority and create a way to bypass any interaction with states, except in the case of gaming. A former South Carolina state official provided an interesting insight on how federally recognized Native nations are positioned in the federalist system.

Former South Carolina State Official: You go straight to the trough, directly to Washington.

Therefore, federal recognition provides advantages directly related to the national government.

Some federally recognized nations have been systematically placed in a direct relationship with states as a compromise for acknowledgment. The Narragansett Tribe in Rhode

Island through the Rhode Island Indian Claims Settlement and the Passamaquoddy Tribe, the

Penobscot Nation, and the Maliseet Tribe with the Maine Indian Claims Settlement all agreed to restrictive language stating state civil and criminal jurisdiction in their land claims settlement.87

The Narragansett prior to the BIA extending recognition settled a land claim with the state of

Rhode Island concerning traditional territory and the illegal land takings by the state. In addition to placing the land into trust, the state maintained criminal and civil jurisdiction in the territory.

After federal recognition the state has argued, it continued to maintain civil and criminal jurisdiction to enforce state laws in the Narragansett territory, the nation has maintained that the

86 Koenig and Stein, "Lost in the Shuffle: State-Recognized Tribes and the Tribal Gaming Industry," 327-380 . The authors argue that state-recognized nations could in fact engage in gaming legally under state law. 87 See Rhode Island Indian Claims Settlement, Code of Federal Regulations, Title 25 (1980): Section 1701-1716 and Maine Indian Claims Settlement, Code of Federal Regulations, Title 25 (1980): Section 1721-1735.

46 state no longer has jurisdiction since the tribal-national relationship was established. The

Massachusetts Indian Claims Settlement extended municipal jurisdiction for the town of Gay

Head, in addition to state jurisdiction, into the Wampanoag Tribe of Gay Head (Aquinnah territory).88 These settlements serve as another example of forced federalism where the national government has unilaterally included states into the exclusive relationship and, subsequently resulting in disputes with the Native nations arguing for tribal and federal jurisdiction and the states contending jurisdiction.

The purpose of my research is to propose a different way to view tribal-state relations.

However, my interviews suggest even with identifying distinct problems with being federal recognized, each person clearly values the federally acknowledgement classification because of the tangible and intangible benefits that accompany it. I do not want to neglect to underscore the sense of desperation within these communities. Often times, state-recognized peoples live in the poorest counties of the state, Lumbee is a good example of this, and the federal resources would assist in alleviating those disparities.89 An overwhelming majority of my interviewees agreed that federal recognition would bring in additional resources albeit with strings attached.

Cheryl Sievers, 2nd Chief Waccamaw Indian People of South Carolina: I think, this is my understanding, that first of all there would be more doors opened for funding, at least, when I was looking into researching for grants. So many of the grants are for federal recognized at least it would put us…not that we would get it, but at least it would open doors for applications for it. There is not much at all for state tribes.

North Carolina Commission of Indian Affairs Executive Director: Naturally with federal recognition, you have more resources coming to the table.

2nd Lumbee Community Member:

88 See Massachusetts Indian Claims Settlement, Code of Federal Regulations, Title 25 (1987): Section 1771-1771i. 89 According to U.S. Census Quick Facts, the median income for Robeson County from 2009-2013 was $29,806 compared to the entire state of North Carolina at $46,334. “Robeson County, North Carolina.” State and County Quick Facts. U.S. Census, http://quickfacts.census.gov/qfd/states/37/37155.html, accessed October 30, 2015.

47 A lot. A hell of a lot. I’d rather have the idea knowing, the knowledge of knowing, that we are federally recognized than not because of the opportunity for education, for housing, for healthcare.

Native American Affairs Coordinator, South Carolina Commission of Minority Affairs: You do get monies when federal recognition comes into play. You are able to access more programs and things like that.

2nd Former Lumbee Tribal Council Member: The advantages would be better healthcare, helping with the children’s education, funds for them to go to school.

Robeson County Manager: Healthcare and the possibilities, of course you would know, educating our kids. The possibility of education and healthcare it would be great for the county with the responsibilities on our DSS. We are one of the poorest counties in the state. If we had federal recognition, it would relieve some of that.

Lumbee Tribal Government Counsel: If you’re not recognized by the federal government any of the amenities or benefits of being Indian are not extended to you until you are federally recognized. And that’s the benefit of being federally recognized. You access, you know this as well as I do, you access services from Indian Health Services, BIA, and other federal agencies.

2nd Lumbee Elder: Just a stamp of the federal government for federally recognized tribes. Federal recognition is a political term put into place by politicians to control resources.

The pursuit of federal recognition is a little more than just the possibility of additional resources. Throughout my interviews there was an unwavering sense that federal acknowledgement would support “Indianness” or “Indian” identity to outsiders.

Lumbee Tribal Government Employee: But, you have non-benefits and I always use myself as an example because one of the things in working with legislative recognition and having to go out to tribes that you know did not like you, that you know did not support you, that did not believe you were Indian. They questioned your identity. I’ve developed a recognition psychosis and I’ve always made the statement, ‘I don’t care if they’d recognize us and not give us a dime.’ Just so I can walk in that room and say, ‘I am a federally recognized Indian.’

1st Lumbee Elder: Recognition to me finally says from the larger community, ‘we recognize who you are. You have been saying that all the while and it’s not something that you have to keep

48 proving.’ Recognition to me kind of settles the question of our identity as far as them accepting that.

Chief Harold Hatcher, Waccamaw Indian People of South Carolina: The federal government sees all of us in one bucket. Not all of us, but all the federal ones in one bucket. The state government sees all its state Indians in one bucket. They don’t differentiate between the Waccamaws, and the Santees, and the Pee Dees, and the Edistos, and all that kind of stuff. Now I think tribally, we do if the Edistos and the Waccamaws are together; we both know that we are members of different tribes. But, the government as far as it knows all the cultures and all everything is the same and it’s not.

Federal acknowledgement continues to be the ultimate objective for non-federally-recognized

Indigenous communities. Access to resources is the main concern for these communities and achieving federal recognition can address issues that are difficult to address without it. However, the political landscape is changing and federally recognized Native nations are interacting with states more. So, what does that mean for the coveted exclusive relationship?

Native Nation/State Relationships: Devolution of Authority

Even though an exclusive relationship exists, that does not suggest that federally recognized Native nations are not relating with state and local governments. This shift in government relations is often referred to as “new federalism” or devolution of power.90 Several acts by the national government have created a situation where federally recognized Native nations are required to relate with their states. An example of such efforts is the Termination

Policy- Public Law 83-280 (1953) when Congress terminated the government-to-government relationship with several Native nations. Termination included the withdrawal of federal assistance and allowed the states to assume primary civil and criminal jurisdiction over Native

90 Stephen E. Cornell, Jonathan B. Taylor and Harvard Project on American Indian Economic Development. Malcolm Wiener Center for Social Policy. Malcolm Weiner Center for Social Policy., "Sovereignty, Devolution, and the Future of Tribal-State Relations" Harvard Project on American Indian Economic Development, Malcolm Wiener Center for Social Policy, John F. Kennedy School of Government, Harvard University, Cambridge, MA, 2000).

49 nations. Then in the late twentieth century, Congress compelled Native nations that entered into the high-stakes gaming industry to negotiate gaming compacts with the states where those nations were located.

Immediately after the Supreme Court case, California v. Cabazon Band of Mission

Indians (1987)91 upheld tribal sovereignty and a Native nation’s right to establish gaming within its jurisdiction, in 1988 Congressional leaders passed the Indian Gaming Regulatory Act (IGRA).

This Act, among other things, required Native nations pursuing Class III gaming to negotiate compacts with their home state.92 This requirement has reconstructed the way in which Native communities and states relate with one another. Historically, states and Native nations for the most part either have ignored each other or have seen each other as adversaries.93 They remain adversaries in many cases, but now they have to negotiate with each other for gaming purposes, but are finding other spaces to carve out intergovernmental agreements. “As tribes and states negotiate the legal, political, and economic dynamics of Indian gaming, it is important to understand how tribal–state IGR [intergovernmental relationships] generate opportunities for and constraints on potential political partnerships.”94 Gaming revenue provides opportunities for

Native nations to actively influence state and local politics.

Faced with a host of new proposals, tribes sought to achieve favorable outcomes on

Indian gaming by working within the state’s political and electoral systems. To stabilize

shifting political terrain and maintain the continued viability of tribal gaming as a means

91 California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987) 92 IGRA defines Class III as “high stakes” games “commonly played at casinos, such as slot machines, blackjack, craps, and roulette” United States., An Act to Regulate Gaming on Indian Lands. (Washington, D.C.: U.S. G.P.O., 1988). 93 Except for the instances when Native nations and states have competing interests, especially concerning natural resources such as water rights. See Winters v. United States, 207 U.S. 564 (1908). 94 Light S.A., "Indian Gaming and Intergovernmental Relations: State-Level Constraints on Tribal Political Influence Over Policy Outcomes," American Review of Public Administration 38, no. 2 (2008), 227-228. Light descries IGR as intergovernmental relationships

50 of job creation and reservation economic development, tribes strategically used gaming

revenue to underwrite special interest tactics designed to maintain or build goodwill

among external constituencies.95

Steven A. Light’s analysis of whether Native nations are functioning as special interest groups demonstrates the enlarged role that federally recognized communities are taking on within the state political landscape.96 Federally recognized nations engaging in strategies to circumvent the exclusive tribal-national government-to-government relationship is not new, especially, concerning land and resource management. Using private land trusts mechanisms to conserve land and resources, Native nations are acquiring land through a conservation title or “fee title” rather than the land into trust option. The other mechanism Native nations are using to protect resources is obtaining a conservation easement to protect the property. The fee title provides these nations with unrestricted ownership to the land unlike the trust land status; on the other hand, they are subject to conservation mandates. More importantly, the conservation titles protect the land in perpetuity from development.97 Private land ownership risks severing trust ties, but loosens the restrictions on land and resources that accompanies trust land status. This shift in power is a departure from the exclusive relationship recognized in the United States’

Constitution, affirmed by federal legislation, and upheld by the Supreme Court. However, the devolution of federal programs has occurred across the federal government and outside Native affairs.

State recognition provides a different perspective on the Native nation-state relationship.

This relationship was not established as a means of inclusion, but as a means of survival.

95 Ibid., 236. 96 Although Native nations may behave like special interest groups in some instances, as Light points out, that model is insufficient because of the sovereign status of indigenous communities. 97 Wood M.C. and Welcker Z., "Tribes as Trustees again (Part I): The Emerging Tribal Role in the Conservation Trust Movement," Harvard Environmental Law Review 32, no. 2 (2008), 373-432.

51 Understanding how and why this relationship has worked (or not) could provide possible models for interacting with state governments and strategies to facilitate the strengths of federalism by negotiating competing interests through alternative arenas. In the following chapter, I will discuss how state recognition functions outside the exclusively tribal-national government-to- government relationship.

52 CHAPTER THREE: STATE RECOGNITION

State-recognized Native nations are creating ways to relate with other governments to address the needs within their communities. My intention in this chapter is to provide another perspective that reconsiders the state recognition process and thus, state-recognized status, not as an arbitrary non-authoritative way to acknowledge a Native community, but as an example of the alternative arenas in the American federalist system, therefore, extending federal acknowledgement outside the purview of the FAP criteria. I am not arguing that recognition

(federal or state) grants sovereignty to indigenous peoples because sovereignty is inherent.

However, I am arguing that federalism provides a space for Native nations to exercise self- determination.

Although state recognition is not a necessity to receive federal recognition, many

Indigenous communities are organizing and developing significant relationships with their home states with the intention, some explicit and others not, to petition for federal recognition. State recognition has provided a way for non-federally recognized communities to relate to other governments, but it has, more importantly, created a political space for Indigenous issues to be placed on the state’s agenda that has otherwise tried to ignore their existence. This chapter will discuss how state recognition is used as a tool for pursuing tribal agenda and a way of building effective intergovernmental relationships, the state recognition criteria for both North and South

Carolina, the advantages/disadvantages of being state recognized, and a survey of other state- recognized/state relationships.

Federalism: Alternative Arenas for State Recognition

53 State recognition demonstrates an interesting aspect of federalism that scholars have not examined extensively. Viewing state recognition through the lens of federalism spotlights the states’ capacity to recognize indigenous political entities and further epitomizes the system’s authority in the U.S. This position is a complete contrast to the traditional view of federalism concerning Native nations. As mentioned previously, Indigenous nations are typically discussed as having a position slightly higher than that of states because of their inherent sovereignty.

Including state recognition into the discussion, which does not fit exactly into the exclusive tribal-national government-to-government framework, creates skepticism because the effect is unclear. Opponents have questioned the status of state-recognized Native nations in the United

States, such as Kerry Holton, President of the Delaware Nation of Anadarko, Oklahoma, who argued that, "Tribes are blurring the line between state recognition and federal recognition.”

Holton’s reaction to the 2012 proposed resolution to continue to include state-recognized Native nations as members of NCAI suggests that there is uncertainty about their position compared to federally recognized Native nations. Those opponents argue that states do not have the authority to extend recognition to indigenous communities and that authority should remain with the national government.98 Considering how the federal government has continued to trend toward devolution of authority in the 21st Century, state recognition should not be viewed as an act outside of this new federalism framework.

The federalist system serves as a mechanism for the national government to acknowledge states’ ability to extend recognition by providing federal funds to state recognized Native nations and expanding on how indigenous communities (federal and/or state recognized) interact with various governments in the United States. States’ recognition of Native nations reinforces the

98 ICTMN Staff, "Delaware Nation President: State-Recognized Tribes Cutting into Federal Funding 'Pie'," Indian Country Today Media Network.2012. http://indiancountrytodaymedianetwork.com/2012/05/08/delaware-nation- president-state-recognized-tribes-cutting-federal-funding-pie-111770. , accessed December 12, 2014.

54 distribution of governmental powers creating a longer extension of federal recognition. The 2012

GAO report reviewing federal funding received by non-federally recognized Native nations between 2007 and 2010 illustrates how federal agencies are interpreting federal laws to include state-recognized communities, thus confirming the ability of state-recognized Native nations to actively engage in the American political system. Although the report placed many non-federally recognized Native nations on high alert concerning their funding eligibility, the agencies’ justification for granting such awards provides insight on how federal agencies are widening their scope of what it means to be “Indian” or a “tribe.”

The GAO reported the Department of Education (ED) as awarding American Indian

Vocational Rehabilitation Services Program funding to four state-recognized Native nations between 2007 and 2010. The American Indian Vocational Rehabilitation Services Program eligibility requirements include, “The governing body of an Indian tribe or consortia of such governing bodies located on federal and state reservations may apply.”99 According to the report, all of the awardees were state recognized without reservations. The GAO questioned the

Department’s distribution of funds because neither of the four met the reservation eligibility requirement. The Department’s response cited the Supreme Court case, Montana v. Blackfeet

Tribe, 471 U.S. 759 (1985) where the Court held: “one, States may tax Indians only when

Congress has manifested clearly its consent to such taxation; and two, statutes are to be construed liberally in favor of Indians.”100 Therefore, the statute, 29 U.S.C. 741, authorizing the vocational rehabilitation services grants available for “The governing body of an Indian tribe or

99 U.S. Department of Education. “Eligibility.” Vocational Rehabilitation Services Projects for American Indians with Disabilities, 2008. 100 Montana v. Blackfeet Tribe, 471 U.S. 759 (1985) [Emphasis added]. See Government Accountability Office. Federal Funding for Non-Federally Recognized Tribes, 2012. The Department of Education awarded American Indian Vocational Rehabilitation Services Program funding to the United Houma Nation, the Lumbee Tribe of North Carolina, and a consortium consisting of the Choctaw-Apache Tribe of Ebarb and the Four Winds Cherokee.

55 consortia of such governing bodies located on federal and state reservations may apply,” was liberally construed by ED based on case law that has been traditionally applied to federally recognized indigenous peoples. More importantly, ED construed the “reservation” requirement to incorporate “State designated tribal statistical areas” (SDTSAs), which are areas identified by the state and recognized by the federal government in U.S. Census data. These liberal interpretations by the Department of Education illustrate how agencies are relating to state- recognized Native nations outside the federal acknowledgement status. The funding also shows how federalism arenas, for the purpose of this example, a financial arena, provides an opportunity for two governments (national government providing funding to the non-federally recognized nation) to talk to one another, which would otherwise not occur because of the lack of an exclusive relationship further demonstrating its flexibility.

Other agencies have embraced including state-recognized and non-recognized into the

Indigenous or “Indian” definition. The Environmental Protection Agency (EPA) has recently defined “indigenous peoples” as individuals from federally recognized Native nations, state- recognized Native nations, and non-recognized Native nations in its consultation and coordination policy.101 Federal agencies are interpreting the state recognition designation as a legitimate exercise in acknowledging a government-to-government relationship in the U.S and state-recognized Native nations are eligible to receive federal funds because of such status, creating a way to communicate with the federal government without federal acknowledgement.

One could argue that state recognition is an extension of federal acknowledgement because of the federal funding made available to state recognized communities without having to directly deal with the Bureau of Indian Affairs. This extension is a perfect example of federalism

101 U.S. Environmental Protection Agency. “Definition: Indigenous Peoples (for the purposes of this Policy).” Policy on Environmental Justice for Working with Federally Recognized Tribes and Indigenous Peoples, 2014.

56 arenas. Because of the political relationship with the state, one would traditionally view state- recognized Native nations as the state acting as an intermediary to talk to the national government. Government-to- P.L. 280 Government ICWA Relationship IGRA Treaty Obligations Federally Intergovernmental Recognized Agreements

National State

Consultation (EPA) State Recognized Department of Ed Small Business Contracts 8A HUD Figure 6: State- Recognized/National Federalism Arenas Federalism arenas allow state-recognized communities to bypass the state to directly deal with the national government. Figure 6 provides a few examples of how state-recognized and the national government are talking directly to one another outside of federal acknowledgement. Just as states have the power—acknowledged by the federal government— within state constitutions to charter municipalities, we should view state recognition in that same vein of authority. I am not suggesting that states create Native nations by recognizing them. Those indigenous communities were collectively organized prior to contact and statehood. However, I am arguing that federal agencies are interpreting federal law to expand their purview to include state- recognized Native nations, and that is the effective use of federalism arenas. More importantly, it reflects the devolution trend of states engaging with Native nations on a more frequent basis. In addition, if states are relating with Native nations more, state recognition should not be viewed

57 as not having a space within system, but as a paradigm shift that is occurring across all facets of national-state-Native nation relations.

State Recognition: A New Phenomenon?

States and Native nations have historically interacted with one another for better or worse. In the late 18th Century, the passage of the Trade and Intercourse Act (1790) sought to regulate trade and placed all the power with the national government to trade with indigenous peoples. The purpose of the Act was to control the sale of “Indian land” to states and individuals, which reaffirmed the exclusive relationship between the national government and Native nations.

This exclusivity did not necessarily stop all interactions between Native nations, individuals, and states.

State recognition is not a new trend taking shape because Native communities are unable to receive acknowledgement by the federal government. Often times, these communities have interacted with the state on a variety of levels since statehood, but only recently created enough political pressure for states to formally acknowledge them as indigenous peoples. Maryland is an excellent example of the most recent state-recognized case. In 2012, the state of Maryland acknowledged the Piscataway people through an executive order.102 The Piscataway people did not just reappear in 2012. They have remained in Maryland since contact and after statehood, as stated in the executive order, but have been unsuccessful in garnering enough political interest to create a meaningful political relationship.

Just as politics mire the federal acknowledgement process, the same is true with state recognition. Each state and the federal government have a different baseline in determining

102 The State of Maryland, Executive Department. Executive Order 01.01.2012.02: Recognition of Maryland Indian Status of the Piscataway Indian Nation, 2012.

58 ancestry. The Office of Federal Acknowledgement (OFA) located in the Bureau of Indian Affairs requires petitioners to provide documentation of Native ancestry from historical times defined as since 1900. North Carolina requires a petitioning community to be able to trace surnames

“commonly identified as being American Indian since 1790.”103 Indigenous peoples of South

Carolina must demonstrate their “historical presence in the State for past 100 years.”104

North Carolina adopted recognition criteria in 1980 and in 2006 amended it to remove the requirement to trace “Indian ancestry” to North Carolina specific Indigenous communities within the last 200 years. North Carolina’s criteria include a phrase “demonstrate continuous American

Indian identity on a historic basis.” 105 The problem with the “historic basis” requirement is that it is not definitively defined. The amendment does, however, allow Indigenous peoples who cannot prove the continuous existence to submit a narrative explaining why the break occurred.106

State Recognition Criteria North Carolina South Carolina Five of the recognition criteria listed in Item (2) Petitioners must meet 1-9 requirements; 10 must be satisfactorily met and 11 requirements are optional (a) Located in North Carolina who can trace their (1) Located and indigenous to South continuous American Indian identity from an Carolina. Must provide evidence of tribal historical basis; organization and/or government and tribal rolls for a minimum of five years; (b) Documentation of organizational status and (2) Historical presence in the state for the structure. past 100 years and meets the state’s definition of a "tribe" as defined in South Carolina Code of Regulations, 39-102 (D) (1) Demonstrate on a historical basis continuous (3) Organized to preserve culture and American Indian identity traditions, and reflected in governing documents (a) Traditionally North Carolina indigenous (4) Exist for the purpose of meeting names “spiritual, social, economic, or cultural

103 Criteria for Recognition as an American Indian Tribe, North Carolina Administrative Code. 01 Chapter 15- Commission of Indian Affairs (1980 amended 2006): Section .0212. [Emphasis added]. 1790 was also the first year the United States began collecting census data. 104 Criteria for State Recognition, South Carolina Code of Regulations, Chapter 139-Commission for Minority Affairs (2004 amended 2006): Article I, Section 105. 105 The original guidelines required petitioners to provide documentation of their “Indianness” since “historical times.” Common practice required providing documentation since 1790 to the present day of the petition. 106 Proposed Rules. North Carolina Register. (August 1, 2005): Volume 20, Issue 03, pgs. 109 – 151.

59 needs” (b) Kinship relationships with other recognized (5) Official records documenting “claims” of indigenous communities indigenous identity including birth certificates, church records, school records, U.S. Bureau of the Census records, and other pertinent documents; (c) Documentation of indigenous identity (6) Documentation of kinship relationships with other indigenous communities within and outside the state (d) State or federal documents recognizing (7) Anthropological or historical petitioners as “American Indian” documentation of “Indian ancestry” (e) Anthropological, historical, or genealogical (8) At least 100 living descendants 18 years documents recognizing the petitioner’s or older who can trace “Indian ancestry” indigenous identity through lineage (f) Federal or state recognition affirming (9) Documented traditions, customs, legends, petitioner’s indigeneity either through historic or etc., that signify the specific group's Indian contemporary relationships heritage;

(g) Other documentation of customs and (10) Letters, statements, and documents from traditions that are distinct to the petitioner state or federal authorities, that document a history of tribal related business and activities that specifically address Native American Indian culture, preservation, and affairs; and (h) Recipient of grants from resources (11) Letters, statements, and documents from specifically labeled as “American Indian only” tribes in and outside of South Carolina which attest to the Indian heritage of the group.

North and South Carolina have very similar criteria. Petitioners must be indigenous to the either state; must be organized politically as a community; must have documentation of customs and traditions; must have maintained an indigenous identity; and must have documentation of others outside the community acknowledging indigenous identity. Comparably, each process resembles the federal acknowledgement process. The concern with state recognition is that not all states have the same standards. Using the Piscataway as an example, Maryland’s Governor recognized the community through an executive order. There is no reference to any rigor applied in the proclamation process and that frightens people, especially other Indigenous peoples. The

Executive Order does mention that the state’s Commission of Indian Affairs recommended

60 recognition through a petition process, but it is safe to say opponents do not read the fine print.

Opponents of state recognition only see an executive order recognizing a community and in their minds, potentially any community (“real” or not) with enough political support could become recognized by the stroke of a pen. People falsely claiming Indigenous affiliation has occurred throughout history and the ability for states to exercise their authority in granting recognition status without clear criteria cause others to be skeptical of state recognition authenticity.

The varying state recognition processes also creates opportunities for different status depending on the state. South Carolina is currently dealing with second thoughts about including state-recognized indigenous groups into the recognition process. As the regulation reads now, the

Commission of Minority Affairs allows petitioners to apply for three different state-recognized statuses: tribe, group, or special interest. In my conversation with the Chief of the Waccamaw

Indian People, he explained to me that initially including state-recognized groups created enough political support to pass the recognition criteria. Now, Chief Hatcher worries that if the group category remains, eventually the state-recognized groups will out number state-recognized

Native nations. Chief Hatcher explains,

Matter of fact, one of the issues that’s going on right now; when they set up the Commission, they have groups. We’re the only state in the country that has groups and it’s very confusing because if you are chartered as the ‘House Cat Tribe of South Carolina’ through the Secretary of State’s Office and you get recognized as a group then you are recognized as the ‘House Cat Tribe of South Carolina.’ People don’t know the difference between a tribe and a group. So it’s kind of confusing, but the problem with it according to the law, a group is made up of Indians and any other ethnic group.107

In other words, the line between a “tribe” and a “group” becomes blurred when outsiders do not understand how they differ. North Carolina also has urban Native groups recognized within its state but repealed the group recognition process in 1999. The dispute sounds a lot like what

President Holton was arguing against allowing state-recognized Native nations to remain

107 Personal interview, Chief Harold Hatcher, July 8, 2013.

61 members of NCAI. His argument suggests that eventually you would not be able to distinguish state-recognized and federally recognized peoples.

The amendments to the North Carolina recognition criteria and the reconsiderations currently taking place in South Carolina reflect a larger, broader issue that is happening on the federal level with the efforts to change the federal recognition criteria. These movements show the complexities in drafting recognition requirements that must be general enough to account for varied indigenous communities. As tempting as it is to dissect recognition complications and how the process is used to perpetuate an image of indigenous peoples that is inaccurate and creates a class system, I will simply acknowledge that that is outside the scope of this chapter.

The problem resonates with my research and creates future research possibilities, but for the purpose of this section and chapter, I will continue to focus on the fact that criteria exist. In other words, state recognition does not occur because Native “enthusiasts” organize and states will simply recognize them without scrutiny. There are standards that have to be met and North and

South Carolina have attempted to tailor requirements to each states’ experience despite their inequities.

Lumbee recognition in North Carolina

The state recognized Lumbees before criteria were crafted in 1980. In North Carolina, the

1885 Act creating a separate school system for Lumbees provided clear instructions on how the system should function on a local level. Nothing in the Act addressed how the designation of being “Croatan Indians” creates a trust responsibility for North Carolina outside of providing separate educational opportunities. Even though the relationship was not specifically defined, the

62 community understands the Act as recognizing an exclusive quasi-trust relationship between the state of North Carolina and the Lumbee people.

Lumbee Tribal Government Employee: But when you look historically the relationship that the Lumbee have with the state is a very unique relationship that most tribes across the United States don’t have with the states they are in. North Carolina has always taken care of the Lumbee. In 1885, when the school system was instituted and then a separate school system for Lumbee Indians that was exclusive to Lumbee tribal members in 1887 with the establishment of the Croatan Indian Normal School the first appropriation came from the State.

Then in 1953 when North Carolina’s General Assembly enacted a bill acknowledging the people as “Lumbee Indians of North Carolina,” a caveat was included that states, “[Lumbees] shall continue to enjoy all rights, privileges and immunities enjoyed by them as citizens of the State as now provided by law, and continue to be subject to all the obligations and duties of citizens under the law.”108 In other words, the legislation provided recognition in name only. Whereas, the 2013 U.S. Congressional Lumbee bill, H.R. 1803, recognizes the “special status” of a government-to-government relationship stating, “Congress finds that the Lumbee Indians should now be entitled to full federal recognition of their status as an Indian tribe and that the benefits, privileges and immunities that accompany such status should be accorded to the Lumbee

Tribe.”109 North Carolina’s lack of acknowledging a trust responsibility in a piece of legislation did not go unnoticed. In 2013, a bill was introduced to the General Assembly requesting to strike the aforementioned general language and insert new language,

They shall continue to enjoy all their rights, privileges, and immunities as an American

Indian Tribe with a recognized tribal governing body carrying out and exercising

substantial governmental duties and powers similar to the State, being recognized as

108 North Carolina General Assembly. An Act relating to the Lumbee Indians of North Carolina, 1953. 109United States House of Representatives. H. R. 1803. To provide for the recognition of the Lumbee Tribe of North Carolina, and for other purposes, 2013.

63 eligible for the special programs and services provided by the United States to Indians

because of their status as Indians.110

This bill died in committee. Informal talks suggested that North Carolina legislators were concerned about the bill’s potential to open gaming opportunities for state-recognized Native nations.

Despite not having the language that recognizes the Lumbee as a “tribal governing body,”

North Carolina continues to function on a government-to-government basis with the Lumbee, which Chapter Four: Lumbee Tribe of North Carolina discusses. The Lumbee people understand the recognition status as being between two sovereigns.

Lumbee Tribal Government Counsel: The advantage of state recognition is a recognition of the sovereignty of a tribe. State recognition basically says that the State of North Carolina recognizes that the Lumbee Tribe is a sovereign Indian nation bound within the geographic jurisdiction of the state of North Carolina.

The state has merely neglected to recognize the de facto relationship in writing. Without having the relationship embodied through legislation from either entity, there is a lot of room for interpretation without a clear mandate on how and under what parameters to define the relationship. In its current state, state leadership at any point can decide to no longer deal with the Lumbee as a tribal governing body. Although the 1885 Act and the 1953 Lumbee state legislation precede North Carolina’s recognition process passed in 1980, the criteria do not explicitly define what state recognition will look like once a petitioner becomes recognized by the state. This is unlike the federal acknowledgement process that specifically states the purpose of the recognition designation as, “such acknowledgement shall also mean that the tribe is

110 North Carolina General Assembly. H.B. 844, Indian Tribe Recognition, 2013. The bill also included five of the other state-recognized Native nations located in North Carolina inserting that same language. It went to committee but no further action was taken. Haliwa-Saponi is the only state-recognized nation in NC to have that language written in an act.

64 entitled to the immunities and privileges available to other federally acknowledged Indian tribes by virtue of their status as Indian tribes as well as the responsibilities and obligations of such tribes.”111 However, the general North Carolina statute language is viewed as a positive way to engage within the state.

North Carolina Commission of Indian Affairs Executive Director: General Statute 143B really puts in place some broad parameters that we can work from and gives us broad authority within state government. For example, our Indian members that serve on the Commission they are selected by tribes and organizations. They are not selected by the Governor.

State recognition, for Lumbees, is usually perceived as being advantageous, but most people understand that the relationship with the state can be restricting.

1st Former Lumbee Tribal Council Member: We are limited because if someone commits a crime, we would have to go to the state courts.

2nd Lumbee Community Member: In the State of North Carolina, in my mind’s eye, we have a good relationship when it doesn’t cost the State any money.

1st Lumbee Elder: Well I think there is an advantage in that state recognition and the organization of state recognized tribes does give us kind of a negotiating platform. It does give us a united voice to say to the greater population there is a segment of this state that are Native.

Lumbee Tribal Official: Well…let me put it this way, ‘if you are not at the table, you are on the menu.’ So by virtue of being at the table, we are able to change things, move things in the right direction, keep people informed in relation to what’s going on. If there’s a need out there, we can publicize it, we can get involved with it and, hopefully, change some of things that are pressing to our people.

2nd Former Lumbee Tribal Council Member: I think one of the advantages of being state recognized is when we try for federal recognition we’ve always got the state of North Carolina in our corner to support us, to help us for any issue that we need from the state level. But, basically for federal recognition they’re always there in our support even though monetary they don’t have the

111 Procedures for Establishing that an American Indian Group Exists as an Indian Tribe, Code of Regulations, Title 25 (1978 revised 1994): Chapter I. Subchapter F. Part 83. .

65 monies there to help us with that, but at least anything the state could do they’re there to support us. I think that is the one advantage.

Robeson County Manager: With us [Robeson County] there’s not a whole lot advantage of state recognition, but I’m sure it is for the Tribe. It’s probably the reason they’ve got the HUD money now because of the state recognition. That’s an advantage to anybody because the homes being built and the work [job opportunities associated with it]. There’s a large amount of work the Tribe provides for the county, which is always good because money turns over.

2nd Lumbee Elder: Yeah, there are some advantages. You don’t have to adhere to all of the federal red-tape that you would have to deal with and the politics, but it’s best to be federally recognized.

Lumbee Tribal Community Member: And state-recognized tribes versus federal, I think the challenges for state-recognized is definitely funding and just finding it. But, they [state-recognized communities] have to be more innovative.

North Carolina and Lumbees have a unique relationship mainly because of its historical nature and Lumbees have been active players in the state’s political landscape since its conception.

When Lumbees developed a relationship with North Carolina, a federal recognition process did not exist. The relationship with the state was established out of necessity and was a strategy available within the federalist system for the Lumbee to ensure their community’s needs were addressed. I will discuss this point in more detail in Chapter Four, but it is important to recognize that Lumbees refusing to be ignored in a state that attempted to lump them into the non- white/black category provided for the longevity of the North Carolina-Lumbee relationship. State recognition was a strategy used to contest the white-black binary and required the state of North

Carolina to acknowledge Lumbee existence by developing a political relationship.

Waccamaw Indian People Recognition in South Carolina

The Waccamaw Indian People went through a process established under the Commission of Minority Affairs created in 2003 by state legislation. Once the Waccamaw were recognized,

66 South Carolina’s General Assembly passed a bill in 2005 congratulating the Waccamaw Indian

People “on receiving the high honor of being recognized as a ‘tribe’ by the South Carolina

Commission of Minority Affairs”.112 Unlike the North Carolina process, South Carolina recognition criteria have explicit limitation provisions that include: Native nations are subject to civil, criminal, and regulatory jurisdiction of the state; they have no authority “to take any action that would establish, advance or promote any form of gambling” in the state; they have no basis for land or real estate claims. Those provisions provide federally recognized Native nations retain their sovereign rights; that state-recognized Native nations who subsequently are recognized by the federal government are not bound by these limitations; and finally, that

“Splinter groups, political factions, communities or groups that separate from the main body of” the current state-recognized Native nation will not be acknowledged under the state’s recognition regulations.113 Just as the North Carolina criteria neglects establishing a trust responsibility, so does the South Carolina criteria. Although South Carolina includes provisions addressing what state-recognized Native nations cannot do, the legislation does not state what the recognition entails.

South Carolina and the Waccamaw Indian People are in a precarious situation because of the relative newness of the relationship. North Carolina and Lumbee have had a political relationship with each one on a continuous basis since 1885. South Carolina and Waccamaw established a relationship in 2005. Prior to that, the Waccamaw had relatively minimal success in building a relationship with the state.

Native American Affairs Coordinator, South Carolina Commission of Minority Affairs: Well I would say it depends really on state-to-state. South Carolina is a fairly young program as far as some of the other states. I think Alabama has been around for

112 South Carolina General Assembly. H. 4183, A Concurrent Resolution, 2005. 113 Criteria for State Recognition, South Carolina Code of Regulations, Chapter 139-Commission for Minority Affairs (2004 amended 2006): Article I, Section 105.z

67 something like thirty some years, North Carolina has had a really long established program so we are new to the game. We have gotten to the point where we have finally gotten our recognition status pretty well established.

Cheryl Sievers, 2nd Chief Waccamaw Indian People of South Carolina: It is something to think about at some point we are pursuing federal recognition. The fact is that I guess one of your questions is as far as the state and our relationship with the state is that I don’t think it really benefits us right now. There is not much at all for state tribes.

During my interviews, Chief Hatcher told me an interesting story of how states are not mandated to relate with one another by acknowledging state recognition. States do not have to extend reciprocity to a person from a state-recognized Native nation from another state.

Chief Harold Hatcher, Waccamaw Indian People of South Carolina: We have run into problems with reciprocity where in Florida. For example, I had a kid try to go to college in Florida and it [scholarship] had to be state-recognized or federally recognized Indians. Since they didn’t recognize South Carolina recognition they didn’t want to fund our people. By the same token, if their people were here [South Carolina], we would’ve funded them. We won that too, but it’s an issue. Reciprocity ought to be a high priority. The federal people don’t really have to worry about reciprocity because they’re state and federal.

Federalism provides opportunities for state-recognized Native nations to access resources across governments, but each government has to recognize the other in order for it to be successful. As the Chief pointed out, federally recognized Native nations do not have to worry about reciprocity in terms of acknowledgement. This example demonstrates the strength and weakness of the federalist system. Ann O’M Bowman explains the states’ position in the federalist system as,

“States have lost the ability to first, set the standard, and second, to decide without penalty whether to adopt the federal standard. States are simply charged with customizing the administrative apparatus to fit the state context.”114 States and Native nations have historically had a very contentious relationship, but state recognition provides a different perspective of this

114 Ann O'M Bowman, "American Federalism on the Horizon," Publius 32, no. 2 (2002), 14.

68 relationship. Adding to the previous federalism arena illustration, Figure 7 shows how states and state-recognized Native nations are interacting with one another. Government-to- P.L. 280 Government ICWA Relationship IGRA Treaty Obligations Federally Intergovernmental Recognized Agreements

National State

Consultation (EPA) Statutes/legislation Department of Ed State Recognized Commissions of Small Business Indian Affairs Contracts 8A Nonprofits HUD

Figure 7: State-Recognized Tribal-State Relationships Federalism Arenas

One interviewee I spoke with suggested that state-recognized Native nations have successfully placed items on the South Carolina General Assembly agenda and were then able to produce significant legislation. In 2010, an act was passed by the General Assembly making it illegal to disturb or attempt to remove “archeological resources” defined as artifacts and burial objects at least 100 years old.115

Former South Carolina State Official: The advantage of state recognition is exactly what they wanted with state recognition. They brought their remains to the front and if they knew what they wanted to have done, they could get it done right now. […] You are recognized by the state that means you have some right that means you can sell your artwork like all the others legally.

The reburial of human remains for state-recognized communities is just as an important issue on the state level as it is with federally recognized peoples. The former South Carolina state official

115 Prohibition on entering certain lands to discover, uncover, move, remove, or attempt to remove archaeological resource; definitions; penalty; exception, South Carolina Code of Laws, Title 16- Chapter 11-Offenses Against Property (2010): Article 7, Section 16-11-780.

69 views state-recognized Native nations as being politically influential on the state level and as succeeding in passing legislation specific to the communities.

Even with standards established by North and South Carolina processes, a common understanding of what state-recognized Native nations “do” or function as remains blurry. States are not bound to trust responsibilities as indicated by Congress for federally recognized Native nations nor is there a declaration that exists or an assumption that states will extend the same type of trust responsibilities once an indigenous community is acknowledged by their process.

This lack of a trust responsibility statement is noticeable to state-recognized communities.

Lumbee Tribal Government Counsel: And the distinction between state recognition and federal recognition is that the federal government, through the Constitution, has established a trust relationship between tribes and the United States has further analyzed that trust relationship and only extended that trust relationship to those tribes that have recognized as Indian.

Clear and common parameters not established by states appear to be the cause of confusion for outsiders. The U.S. Constitution upholds this type of autonomy. Both states have established processes of recognizing indigenous communities as political entities; however, those processes do not explicitly state either North or South Carolina’s responsibility once a relationship is established. Whether those parameters are written or not, state-recognized Native nations continue to engage their home states to get things done. One way they can engage across the federalism boundaries is through arenas as noted in my previous examples of the EPA regulations or the ED funding stream.

Issues Facing State-Recognized Native Nations

The underlining case behind federal recognition is the fact that the United States stole land and resources from Native nations. In some instances, theft occurred without

70 acknowledging Indigenous peoples occupying the lands. The recognition status acknowledges that Native nations occupied the land prior to contact and the United States did not enter into any type of agreement for the land; therefore, the federal acknowledgement process provides an opportunity to reacquire a land base and recognition of inherent sovereign authority.

Despite the inability to place land into trust (an option solely for federally recognized nations), state recognized Native nations have acquired land of significance through a 501(c)(3) nonprofit status. Lumbees, for instance, were able to purchase land through the Lumbee Regional

Development Center and then enter into a 99-year lease in 1989 with the state in the annual amount of $1.00 to preserve land of cultural importance. Formerly known as the North Carolina

Indian Culture Center (NCICC) is located in the Red Banks and Pembroke community just north of the Lumbee River. The NCICC was to serve all of the North Carolina Native population, but was located in a place of significance for the Lumbee people. The lease agreements required the establishment of a board of directors to represent each of the Indigenous communities in North

Carolina. The project initially proposed a recreation center to hold community gatherings, and community members could fish and swim, along with other recreational activities. The state recently terminated the lease, but gave the Lumbee Tribe first right of refusal. In 2013, the

Lumbee Tribal Administration purchased the land from the state to continue its preservation efforts of the site. The North Carolina Commission on Indian Affairs provides the option to place land into trust for state-recognized communities, but no community has taken advantage of it yet.

Even though land into trust is a way of acquiring traditional land or sacred land for federally recognized Native nations, state communities are identifying ways within the system to produce the same outcome.

71 In 2004, the Waccamaw Indian People also acquired 20 acres of traditional land with the help of private donations. The land is held in fee and a part of the original 300 acres purchased by John Dimery in 1813, also known as the Dimery Settlement.116 The tribal government was able to receive a tax-exempt status for the tribal grounds through the state. A community member is in charge of the day-to-day maintenance of the grounds in which the tribal government provides a residence for the caretaker, but as Waccamaws consider themselves stewards, taking care of the land is also considered a collective effort. The grounds are used for recreational purposes and a place where the Waccamaw host their annual powwow. The revenue generated from the powwow and donations are used to manage the grounds. The lack of resources to effectively manage the property creates a daunting task that relies heavily upon the work of volunteers.

State-recognized Indigenous communities are dealing with issues that are beyond their current access to resources. These issues expand across recognition classification, social or political status. Addressing these issues is at the center of why they are active in their state and it boils down to the community health and wellness. The people within the communities have the best advantage because they understand their needs and best ways to address those needs.

Chief Harold Hatcher, Waccamaw Indian People of South Carolina: I did a fact sheet back in year 2000 and I updated it in 2010. Yeah, I updated it in 2010. Indian people in South Carolina this is true now and I don’t know why, but I know it’s true because it still shows up in the census status data. Indian people earn about twenty- seven percent less than white people do in the same job, with the same education, [...] Something wrong with that. Our high school dropout rate is five times higher as white folks. Black and Indian are about the same. Our poverty level about five times as high as white folks. Unemployment rate is almost six times as high and there’s reasons these things happen.

Lumbee Tribal Government Counsel:

116 Depending on whom you speak with, the tribal grounds are on or at least in close proximity the original settlement.

72 Biggest concern is lack education and lack of self-confidence, for lack of a better term, self-confidence and self-awareness and lack of self-esteem. I think it goes back to lack of education and drug abuse to be quite honest. Not necessarily just alcohol, but even heavier substance abuse. I think we are seeing now more prescription drug use than other illicit drugs.

North Carolina Commission of Indian Affairs Executive Director: Economy, right now, and health care. Being able to pay the bills, being able to put food on the table, for families to protect their family, provide for their family.

1st Lumbee Elder: We have a lot of violence in this community and our kids are learning violence.

Native American Affairs Coordinator, South Carolina Commission of Minority Affairs: And being in Aynor, as well, medical services. I think the closest medical is probably a good bit a way. They may have a doctor’s care or something locally, but having a major hospital is probably a good bit away. And then jobs too. That’s always an issue for most communities. Most folks, I think that are members of the Waccamaw and I can’t speak for everybody, but I think that most of them are farmers probably or are folks that work in some of the small community shops that are there maybe from some of the larger farms that are around. But, I think most of them have that rural background like a lot of people and are probably in business for themselves in a good many of cases.

2nd Former Lumbee Tribal Council Member: We can get federal recognition. We can have health benefits. Our children could have monies to go to school. We are a very poor county and we need federal recognition. I think that was my main goal was to get there and make a government out of it. Something that our young people would be proud of one day and also that we would get federally recognized.

Robeson County Manager: Recognition. […] We are one of the poorest counties in the state. If we had federal recognition, it would relieve some of that.

1st Lumbee Community Member: Prescription drug problems. The drug issue that’s the 800-pound gorilla in the room everywhere you go cause we know we all know there’s an issue down there and people aren’t talking about it. They’re kind of just wasting away. I’ve had family members that have died as a result of prescription overdose or abuse, basically, prescription medicine abuse between that and diabetes, our health issues in the communities as well.

2nd Lumbee Elder: Employment, education, health care.

73 The voter participation strategy has proven successful for the Lumbee community as discussed further in Chapter Six. Being able to identify and develop a strategic plan to influence state politics demonstrates an advantage of understanding how to impact change for the Lumbee community.

1st Former Lumbee Tribal Council Member: I would love to see a point in time and we’ve come a long way from the time of voter registration. We have, of course, a lot of our people are registered to vote, but they just don’t get out and vote. I think there needs to be a heavy campaign that our people would understand how important it is for them to exercise their right. I think that would be something that if we could ever get to the point, iron out some of the issues of internal issues that the Council along with the Chairman could begin to look at coming together to start campaigning to make that happen. And education. I’m so proud of where we have come from and it is highly important. As the Tribe, we need to get that message out as much as possible too among our people. There’s a lot that we could do and with federal recognition that would be helpful to do these things because you maybe get more funding that would help there.

In the South, indigenous peoples, just as other people of color, were restricted from participating in the American political system, e.g. voting, through discriminatory policies. State recognition provided a strategy to combat those types of policies. Indigenous communities in the

Southeast have historically challenged their race classification and status within their home state; therefore, state recognition was and continues to serve as a strategy to contest the white-black binary in the South. As I will illustrate in Chapters Four and Five, most Native communities in the South organized collectively around social institutions that did not threaten white communities; therefore, the recognition of the collective body was not important. Nevertheless, those social institutions were important factors within the Lumbee and Waccamaw strategies to combat the white-black binary.

The Lumbee and Waccamaw have developed a relationship with North and South

Carolina, respectively, at different points in time, but wanted the same outcome—recognition as

74 a distinct Indigenous community. State recognition provides an interesting perspective of how

Native communities have sustained without a direct relationship with the federal government.

State-recognized Native nations are engaging the federal government outside the FAP purview and federalism provides arenas for this happen.

Survey of Other Relationships

Non-federally recognized Native nations are working across governments in unique ways. Because of their classification, one would presume that they are limited in their strategies, but participating in the federalist system as political actors has afforded them the possibilities that are not necessarily obvious to outsiders. The Lumbee and Waccamaw are located in the

Southeast region of the United States and while most state-recognized Native nations are along the east coast, state recognition exists in other regions. The MOWA Band of Choctaw Indians

(state recognized in 1979) located in Alabama, Shinnecock Indian Nation (federally recognized in 2010) located in New York, Fernandeño Tataviam Band of Mission Indians (non-recognized) located in California, and Pamunkey Indian Community (federally recognized in 2015) located in Virginia all established relationships with state and local governments and private organizations to address community concerns. Regardless of classification, Native nations are actively trying to exercise self-determination rights through various strategies.

MOWA Band of Choctaw Indians is located in southern Alabama situated between

Mobile and Washington Counties. They are descendants of the Choctaws who remained after the majority of the nation was removed west to “Indian Territory” (present-day Oklahoma) during the 1830’s Removal Era. Provisions in the 1830 Treaty of Dancing Rabbit Creek provided 640 acres of land allotments to only 69 family heads of households who wanted to remain in their

75 traditional territory (Alabama, Mississippi, and Louisiana).117 Removal occurred in several phases allowing the ones who left first to send word to those waiting of the dire conditions, discouraging them from taking the journey. This process left many Choctaws landless in the traditional territory and led some to seek refuge in the Alabama swamps. Once the Civil War began, the national government was no longer interested in Choctaw removal because its resources were allocated to the War. After the War, the Choctaws who remained continued to use the swamps as a barrier and isolation mechanism to the outside world. The remaining

Choctaw constantly challenged Alabama jurisdiction and early on the state by way of the judiciary established jurisdictional boundaries for the remaining Choctaws. An 1847 Alabama

Supreme Court decision suggested that state laws would not apply to the remaining Choctaws “at least as long as they continue a distinct and independent community.”118 When companies began to extract the timber of the area in the 1880s, the state of Alabama began to refer to those who remained as “Cajun,” a way to reclassify them as people to not uphold any rights to the land they may have as Indigenous peoples.119 The MOWA did not become state-recognized until 1979 when the state of Alabama created the “Mowah Band of the Choctaw Indian Commission.”

Alabama continues to recognize Choctaw jurisdiction on 600 acres of state trust land. The state has sanctioned tribal police officers and the tribal court maintains jurisdiction on the reservation.

MOWA police officers are recognized by the state with the same authority of state or municipal police officers.120 The Tribal Council has the sole authority to appoint or employee the officers.

Once the police department was established, the Tribal Council entered into an agreement with

117 Jacqueline Anderson Matte, "Extinction by Reclassification: The MOWA Choctaws of South Alabama and their Struggle for Federal Recognition," Alabama Review 59, no. 3 (2006), 174. 118 See Wall v. Williams, 11 Ala. 826, 839 (1847), quoted in Brief in support of Motion to Dismiss of All Defendants- State of Alabama v. 50 Serialized JLM Games (S.D. Ala.), No. 14-00066-CG-B (District Court. February 24, 2014). 119 Ibid. 120 Police Officers of MOWA Band of Choctaw Indians, Alabama Code, Title 36: Police Officers and Employees (1999): Article 6, Section 36-21-123.

76 the U.S. Department of Interior to receive an Originating Agency Identification (ORI) number to access fingerprinting cards and training aids.121

Shinnecock had a similar jurisdiction acknowledgement by the state of New York prior to becoming federally recognized. In 1703, the Town of Southampton and the Shinnecock people entered into an agreement where the Shinnecock signers agreed to relinquish claims to the certain portions of the land in exchange for 1,000-year land lease of a defined territory separate from the town. In addition, state legislation as early as 1792 recognized the Shinnecock people.

The statute that New York continues to uphold recognized Shinnecock jurisdiction to the reservation it created and reorganized political leadership into an imposed governance system of three males elected every year known as the Shinnecock Trustees. The Trustees were responsible for land assignments, intergovernmental agreements, policing access to territory, as well as issuing hunting and fishing licenses within the reservation boundaries.122 For the Shinnecock, not only was their reservation maintained, state officials continued to recognize Shinnecock criminal and civil jurisdiction. Often the state police force and the Town of Southampton received permission to enter into their land. It was common practice for utility companies to enter into agreements with the leadership in order to enter the reservation. The community continued to hold the land in common without having to pay state or property tax.123 Both the MOWA and

Shinnecock communities demonstrate the ability to exercise obvious assertion of self- determination, specifically jurisdiction. Most importantly, outside political units are recognizing and respecting their jurisdiction, to an extent.124

121 State of Alabama v. 50 Serialized JLM Games (S.D. Ala. 2014) 122 The Shinnecock Indian Tribe, New York Consolidated Laws, Indian Law (1792): Article 9, Section 120. 123 Summary under the Criteria and Evidence for the Proposed Finding for Acknowledgment of the Shinnecock Indian Nation (Petitioner #4), Secretary of Interior of Federal Acknowledgement, (2009). 124 Both nations attempted to establish gaming facilities on their reservations and in each instance, the state argued the inability for such development to occur citing the reservation was not considered “Indian Country” as defined in the Indian Gaming Regulatory Act.

77 The Fernandeño Tataviam Band of Mission Indians is a non-recognized Native nation located in northern Los Angeles County, California. The Mexican government originally recognized Fernandeño Tataviam leadership and land rights after land held in trust by the

Catholic Church was transferred in the form of land grants. U.S. settlers later disposed families during the 19th Century with the discovery of gold; however, traditional leadership and kinship ties remained intact despite the national government’s neglect in formally recognizing the people. Most notably in a contemporary context, the Tataviam have been able to serve as representative on the Los Angeles City/County Native American Indian Commission, negotiate agreements with the state, and private entities. As many state commissions serve as an advocate for Native populations in the states, the establishment of the only city and county commission of its kind, Los Angeles City/County Native American Indian Commission, created a platform for an “Indigenous voice” in policy and service/program delivery areas.125 Fernandeño Tataviam association with the Commission and other state and local entities have played an active role in the state’s construction efforts to identify traditional burials and then later repatriate any objects or remains found.

Organized in 1971 as a nonprofit within the city of Los Angeles, the Fernandeño

Tataviam were able to access financial resources including service delivery programs. The political leadership during the time successfully won reparations for stolen traditional lands through lobbying efforts.126 In a recent article addressing research and collaboration with Native nations, Duane Champagne, a leading Indigenous governance scholar, explained the dynamic relationship in California, specifically the L.A. area, where local governments actively engage

Native nations regardless of their recognition classification. According to Champagne, the city

125 Joan Weibel-Orlando, Indian Country, L.A: Maintaining Ethnic Community in Complex Society, Rev. ed. (Urbana, Illinois: University of Illinois Press, 1999). 126 Ibid., 90.

78 and county of Los Angeles encourage the Tataviam to establish fees for advising services to contractors concerning traditional sites. They were also able to negotiate agreements to preserve oak trees and assist in establishing state parks for preservation purposes.127 In one collaboration effort, the nation in an attempt to reach a comprise with the Newhall Land And Farming

Company, Fernandeño Tataviam signed a Memorandum Of Agreement (MOA) with the company to serve as a consult for Newhall Projects on lands in their traditional territory. The

MOA also conveyed one-acre to the nation for a culture center.128 These types of outcomes are the result of meaningful collaboration efforts asserted by the nation and supported by the local governments.

Natural resources and ecological preservation is a concern with any community. For non- recognized Native nations having a seat at the table to manage resources, it requires active collaboration and communication efforts by all parties. The Pamunkey established relationships with state and federal governments to preserve shad in the Pamunkey River. Pamunkey was the largest tribe of the Powhatan Confederacy during the time of the Jamestown settlement.129 A

1677 treaty negotiated between the Pamunkey and the British government created a reservation held in fee by the Commonwealth of Virginia, but it is not subject to state taxes. The treaty that continues to be recognized by the state ensures that the Pamunkey could reside on the reservation in exchange for providing beaver skins to the Governor, a practice that remains each year during the Thanksgiving holiday. Due to over fishing in the Pamunkey River the shad fish were in danger of being extinct. The Pamunkey originally established the hatchery in 1918 and received

127 Duane Champagne, "Centering Indigenous Nations within Indigenous Methodologies," Wicazo Sa Review 30 (Spring, 2015). 128 Memorandum of Agreement. The Newhall Land and Farming Company and Fernandeño Tataviam Band of Mission Indians, 2007. 129 John Garland Pollard, The Pamunkey Indians of Virginia (Washington, D.C.: Government Printing Office, 1894).

79 financial assistance from the Virginia Marine Resources Commission and the Department of

Game and Inland Fisheries.

Creating environments where non-federally recognized communities are able to build their communities is difficult considering the lack of resources. Many use the strategy of creating a nonprofit in order to access resources across governments. The resources provide a space for capacity building. Once a relationship is established and other governments recognize the importance of providing a seat at the table for those communities, the interaction becomes institutionalized. Many do not collaborate with negotiated intergovernmental agreements, but rely on state statutes. A way they are able to hold state officials and others accountable is by participating within the political arena.

80 CHAPTER FOUR: LUMBEE TRIBE OF NORTH CAROLINA

The Lumbee people developed a long-standing relationship with the state of North

Carolina by using state and local politics to their benefit. This relationship has not always been a mutual partnership. From its conception, Lumbee leadership has approached the state for various reasons to address community concerns. By maintaining a distinct community through schools and churches, Lumbees have created an environment where they have developed strategies to negotiate race politics of the South based on arenas. The “North Carolina Indian Child Welfare”

(NC ICWA) as one of the services administered by the North Carolina Commission of Indian

Affairs offers an excellent example of how Lumbee and North Carolina have collaborated to meet the needs of the community. In an effort to demonstrate the advantages of state recognition, I provide an historical overview of the Lumbee people, their involvement in North

Carolina politics, and how those factors contributed to the passage of the NC ICWA legislation.

Lumbees used racial segregation to their advantage by establishing Lumbee-only schools and churches to maintain their identity. Lumbees’ historical relationship with the state and their ability to engage and assert political influence on the local and state level demonstrates how one state-recognized Native nation has created a space to get things done without the federal acknowledgement designation.

Who Are the Lumbees?

The Lumbee Tribe of North Carolina is located in the southeastern region of the state in and around the town of Pembroke. The tribal government defines its service territory as

Robeson, Hoke, Cumberland, and Scotland counties (areas where historically and currently the

81 majority of the community resides) that surround the Lumbee River.130 With 55,000 enrolled members, the Lumbee Tribe is the largest non-recognized Native nation east of the Mississippi

River.131 Their quest for recognition has been well documented; however, not enough attention has been devoted to how the Lumbee people have survived given their ability to strategically utilize their relationship with the State of North Carolina.132

The Lumbees have lived in and around the Southeast region of the United States for hundreds of years. According to Malinda Maynor Lowery, “The Lumbee and Tuscarora populations are the offspring of nearly 300 years of migration and cultural exchange between the varied Indigenous communities that inhabited Virginia, North Carolina, and South Carolina.”133

Oral stories highlight the various family migration patterns mainly from the Cheraw, Hatteras, and Tuscarora communities to present-day Pembroke, North Carolina. Figure 8 illustrates the migration patterns to present-day Lumbee communities.

130 The Lumbee River, formally known to non-Lumbees as the Lumber River, is located in Robeson County, the area where the majority of the Lumbee people resides. Minor references in the 1700s of Cheraw people existing along Drowning Creek connect the present day Lumbees living in the area. In 1753, the Carolina Governor Rowan proclaimed Drowning Creek as the "frontier to the Indians.” In the later 1700s, there were accounts of fifty Indian deedless settlements living along Drowning Creek. “Lumbee Timeline.” Lumbee Tribal website. 2012. (Accessed April 30, 2014, www.lumbeetribe.com). The tribal government passed an ordinance in 2009 to reclaim the ancestral name of the river and will only refer to its designation, Lumbee, in tribal documents. Reclamation of the Lumbee River’s Ancestral Name, Lumbee Tribe of North Carolina Tribal Ordinance, (2009): CLLO-2009-0625-01. 131 “Who are the Lumbee.” Lumbee Tribal website. 2012. (Accessed September 12, 2013, http://lumbeetribe.com/index.php?option=com_content&view=article&id=135&Itemid=115) 132 See the following for scholarship on recognition: Lew Barton, The most Ironic Story in American History: An Authoritative, Documented History of the Lumbee Indians of North Carolina. (Charlotte, North Carolina: Associated Printing Corporation, 1967).; Blu, The Lumbee Problem: The Making of an American Indian People; Adolph L. Dial and David K. Eliades, The Only Land I Know: A History of the Lumbee Indians (Syracuse, N.Y.: Syracuse University Press, 1996).; Lowery, "Telling our Own Stories: Lumbee History and the Federal Acknowledgment Process," 499-522; Gerald M. Sider, Living Indian Histories: Lumbee and Tuscarora People in North Carolina (Chapel Hill; London: University of North Carolina Press, 2003).; Wilkins, "Breaking into the Intergovernmental Matrix: The Lumbee Tribe's Efforts to Secure Federal Acknowledgment," 123-142 133 Lowery, Lumbee Indians in the Jim Crow South: Race, Identity, and the Making of a Nation , 4.

82

Figure 8: Lumbee Migration (Map from Lowery, Malinda Maynor. Lumbee Indians in the Jim Crow South: Race, Identity, and the Making of a Nation. First Peoples: New Directions in Indigenous Studies. Chapel Hill: University of North Carolina Press, 2010.)

“Oral tradition consistently points to their origins in three regions: the Roanoke River in northeastern North Carolina and southern Virginia, the Pamlico Sound, and Outer Banks of

North Carolina, and the piedmont region south and west of present-day Robeson County.”134

These migration stories connect contemporary families directly or indirectly through kinship ties to these various historic indigenous communities. McCulloch and Wilkins state that "According to Robert K. Thomas, the noted Cherokee anthropologist, genetically the Lumbee people are the

134 Ibid., 5

83 descendants of remnants of several small Southeastern tribes: the Hatteras, Saponi, and Cheraw, who from the 1780s through the 1840s worked their way into Robeson County where they intermarried and gradually developed a distinctive tribal identity."135 J. Cedric Woods offers an analysis of the amalgamation process by examining the family line of Thomas Kearsey originally from the Weyanoke community who married an Algonquin woman from North Carolina and had children, including a son named Thomas Kearsey, Jr. Thomas Kearsey, Jr. married an unknown

Tuscarora woman and had a daughter by the name of Celia Kearsey. By 1764, the Kearsey’s have migrated to the area of Drowning Creek, the location of Cheraw and Waccamaw villages, the present-day Lumbee community, where Celia marries James Lowrie, Sr. Celia becomes important in Lumbee history due to her infamous grandson Henry Berry Lowrie. Historical records document Celia as a “half-breed” Tuscarora (the Lumbee community recognizes her as

Tuscarora), which is where Woods argues that because of Tuscarora matrilineal custom there was no need to recognize the Kearsey-Weyanoke connection.136 Woods surveyed U.S. Census records, state records, other public documents outside of the Robeson County area, and family stories, to trace the migration pattern of Thomas Kearsey and his family. Importantly, he places certain classifications and identification markers into historical context by considering how they were applied during the time period, for example, the broad and ambiguous use of the terms

“free persons of color,” “mulatto,” and other race markers that were utilized in the South in the

1600s, 1700s, and 1800s.

135 McCulloch and Wilkins, "'Constructing' Nations within States: The Quest for Federal Recognition by the Catawba and Lumbee Tribes," 371 136 J. Cedric Woods, "Lumbee Origins: The Weyanoke-Kearsey Connection," Southern Anthropologist 30, no. 2 (2004): 29. Thomas Kearsey was the great-great grandfather of Henry Berry Lowrie, a hero and folk legend among the Lumbee people. See also Mary C. Norment, The Lowrie History (Weldon, N.C: Harrell’s Printing House, 1875). for mentions of Celia Kearsey’s status as a “half-breed Tuscarora.”

84 The most interesting aspect of Woods’ analysis is his use of the term “spin off,” applied by Helen Rountree in her study of the Nottoway Indians of Virginia .137 Rountree posits that the

Nottoway became “detribalized” or “disappeared” by being absorbed into the local white and black communities.138 Woods proposes that absorption into those two communities is not the entire story: “the Lumbee community may not have resulted from one migration from Virginia.

Instead, this process of ‘spin-off’ described by Rountree could have added Native families from

Virginia Native communities to the Lumbee community until the late nineteenth century.”139

Applying the spin off theory and considering distinctive surnames that appear in both communities, Woods attests that other Virginia Indigenous peoples, including Gingaskins and

Pamunkeys, migrated and became members to the remaining Cheraw and Waccamaw villages on

Drowning Creek “passing along their sense of Indian identity and group cohesion.”140 Woods analysis only traces one prominent family within the Lumbee community, but his method is applicable to other families to accurately depict the migration patterns of Native peoples in the

South. It is important to note that Woods describes the Indian families in Virginia as “distinct political communities that had separate political rights to certain territories that varied from that of whites and blacks, at least until their reservation was terminated.”141 It is reasonable to believe that migrating families brought with them experience with and understanding of how political relationships with the state functioned as they settled in what is known today as the Lumbee community.

137 Helen C. Rountree, "The Termination and Dispersal of the Nottoway Indians of Virginia," The Virginia Magazine of History and Biography 95, no. 2 (1987): 197. Rountree defines “spin off” as a process “by which members of one group leave and join other groups, changing their ethnic identity as they do so” (197). 138 Ibid.,197, 198. Rountree notes that both blacks and whites began to marry into the Nottoway community in the early 19th Century and in some instances, white families adopted Nottoway children disconnecting them from the indigenous community. 139 Woods, "Lumbee Origins: The Weyanoke-Kearsey Connection," 33. 140 Ibid., 28. 141 Ibid., 34.

85 The amalgamation of various tribes has shaped the modern Lumbee community. The complexity of Lumbee identity required the family and community units to organize under a common entity. By the middle to late 1800s, that entity was a western influenced tradition.

Lumbees are arranged through social institutions, mainly schools and churches. “More than being a core feature of Lumbee political organization, the separate elementary and high schools have been crucial to an Indian cultural and social life: schools and churches are the places where

Indians become connected to other Indians. They are not simply the center of the community; in fundamental ways they are the community.”142 There is a common understanding among the

Lumbee people (and people outside of the community) agree that a Lumbee community consists of families oriented around spirituality with an emphasis on education.143

Lumbee Tribal Government Employee: If you’re in a leadership position and you’re only doing it for your ego and your own personal gain, that’s not a tribal leader to me. […] Now Prospect, Indian business is still talked about. It’s talked about in worship service. I can think of some other churches. White Hill, for example, you talk about Indian business, people are comfortable talking about it in the churches. […] Because one of the things that you look at when you look at the constitutional assembly one of the things that we went to get delegates where we went was the churches and that’s the reason we done that because, historically, you couldn’t say a religious leader and a political leader because they were one and the same. D.F. Lowry was a religious leader, but he was a political leader, he was an educational leader.

Robeson County Manager: Our leadership came out of our churches, yeah. […] It is. I don’t think they’re as strong as they once were and part of that is really that our schools aren’t centered as they used to be since the merger. We don’t have the local community schools that go all the way to high school. We still have our local community schools, but most the Native American community centered around school because I’m from Prospect and everybody is centered around Prospect. Magnolia and the other schools have theirs, but the churches are the center of the population.

1st Lumbee Community Member: I think it is Christian leadership, our pastors is what I would think is our leaders. Our elders, for sure, and that ties back to family because those elders are typically from large

142 Sider, Living Indian Histories: Lumbee and Tuscarora People in North Carolina, 71 [Emphasis in the original] 143 Almost all of my personal interviews conducted with tribal and community leaders as well as state officials agreed that spirituality and education are important characteristics of a Lumbee community.

86 families and family names, family ties down there, especially, communities. Community- based leaders. Prospect, these communities stand out. Mt. Airy, you’ve got Prospect, you’ve got Union Chapel, and then the folks that kind of lead those areas. It’s undocumented lead, they have respect in those areas. It’s all about respect and more of moral values, that’s the huge thing.

2nd Lumbee Elder: Well because the churches, the churches, are the places where our spiritual leaders come from in the community. It had to do with leadership. Leadership came from the churches. […] Yeah, they came from the churches and I still believe that’s where the key leaders come from. They come out of the churches because that’s where they are trained, educated, and informed about what the needs of the community are. It’s a little different now because of status and education. You’ve got an institution in the community. People are getting an education and that helps to define it as well.

Christopher Oakley describes three characteristics that bounded Lumbee communities from the

1880s to 1920s: a strong attachment to their land and community; extended networks of families determining Lumbee identity; and the “establishment of Indian only schools and churches."144

After the 1950s and once the people adopted the official name “Lumbee,” the community began to organize an elected leadership system to serve as a collective decision-making mechanism; however, some of the leaders elected continue to come out of the schools and churches.

1st Lumbee Elder: The Burnt Swamp Association the leaders who helped organize this association a hundred and twenty-five, thirty years ago were also the community leaders who helped bring this University here. They were the community leaders who were in charge of businesses in the Indian community. […] For us, all of our churches their leadership is indigenous leadership. It’s right out of that community. The community built that church. The community sustains that church. The leadership is from that community. Indian churches, Lumbee churches here did not import their leaders in. Their leaders came from their own community. It has been my experience that Lumbee life has been basically life revolving around our faith, our farm, and our families. […] Even more than that, when I was growing up these community leaders were almost like gatekeepers. They allowed and disallowed what could or could not go on. Our schools were in the early days maybe when I was in elementary school or before these little school committees, I would hear stories on how these school committees were deciding on which families’ kids could come here to school and who couldn’t come here to school. […] That kind of leadership came usually from men who were older and who had kind of earned that kind of respect and that kind of favor from the people. […] So when I think of community leaders, I

144 Christopher Arris Oakley, Keeping the Circle: American Indian Identity in Eastern North Carolina, 1885-2004 (Lincoln, Neb: University of Nebraska Press, 2005), 35.

87 think of them in the church, but it’s also true among Lumbee people that a lot of our community leaders, our civic leaders, business leaders were also church leaders. They were both.

Unlike the Lumbee and North Carolina experience in the 19th Century, other states in the

South and those along the east coast declared their territories vacant of the “Indian problem” by simply no longer recognizing that indigenous peoples were still living there. Jean O’Brien examines the process whereby non-Natives in Southern New England attempted to eliminate

Natives from the states’ population between 1820-1880: “Even though non-Indians had Indian neighbors throughout the region, and even when they acknowledged that these neighbors were of

Indian descent, they still denied that they were authentic Indians.” 145 Virginia, for instance, began to adopt the notion that the Native people in the state, specifically, the Nottoway, had disappeared and the only non-whites in the State were of black descent. While the rest of the southern states were vigorously attempting to write Natives out of their populations, North

Carolina was indifferent to the Native community that would not disappear.

North Carolina’s political stance towards ethnic identification, according to Woods, was apathetic for those Native families leaving Virginia to settle in the state. “North Carolina had no particular reason to care what their ethnic identification was, as long as they did not pose a threat to safety of the state. In other words, there was no ethnic affinity recorded in the North Carolina records because it was irrelevant to those records.”146 As other states consistently applied the one-drop rule for non-whites in their jurisdiction, the Lumbees, on the other hand, were deemed for a variety of reasons (either the possibility of another violent retaliation or political

145 Jean M. O’Brien, Firsting and Lasting: Writing Indians Out of Existence (Minneapolis: University of Minnesota Press, 2010), xv. See also Rountree, "The Termination and Dispersal of the Nottoway Indians of Virginia," 209 Rountree describes this process in Virginia: the State passed a law that would grant descendants of Nottoway females a share of tribal land “(and thus become detribalized). Once they ceased to be Indians, however, most of the Nottoway would be considered free Negroes because of their African ancestry.” 146 Woods, "Lumbee Origins: The Weyanoke-Kearsey Connection," 34

88 opportunities) as a significant indigenous community for local political leaders to interact with and thus created a political relationship worth investing in.

Historical Analysis of Lumbee Involvement in North Carolina Politics

Locally, a Lumbee has been elected as the mayor of Pembroke since 1947 when the governor stopped appointing a white person to that office. Lumbees have frequently served in various capacities, such as the Pembroke Town Council, county manager, three of the eight

County Commissioners, the superintendent for the Public Schools of Robeson County, four of the eleven school board members, the Robeson County Clerk of Superior Court, the Register of

Deeds, Sheriff, and others. On the state level, a Lumbee has filled the Robeson County district seat since the 1970s. They also represent several appointments by the Governor. The most recent is the appointment in the Governor’s Office as an Outreach Liaison in the Office of Community and Constituent Services to communicate with the Native communities in the state. Lumbees even made a conscious effort to actively participate on the federal level; during the 1960s and

1970s, many Lumbees migrated North to the nation’s capitol seeking federal positions in the hopes of influencing federal policy.147 There is a common understanding within the community, if a Lumbee is running for an elected position; they will likely win especially if they are running against a white or black candidate.148

How did such active participation occur considering the race politics of the South? For the Lumbee, it was a strategy developed out of necessity over the years to resist the black-white

147 Personal communication with J. Cedric Woods, July 8, 2014. In a 1972 interview with W. J. Strickland, he discusses a federal government program under Nixon’s Administration to train Natives for management positions and Lumbees were eligible for the program. “Interview with W. J. Strickland.” December 30, 1972. Samuel Proctor Oral History Program. Department of History, University of Florida. (accessed July 17, 2014, http://ufdc.ufl.edu/UF00007036/00001/25j?search=washington). 148 Personal interview, July 11, 2013.

89 binary by being assertive in the North Carolina political landscape and not settling for a prescribed status. In addition, I believe the ability for Lumbee leaders to identify arenas to talk across the spaces of federalism has made them successful political actors. For instance, these arenas include having access to Indian Housing funds available through the U.S. Department of

Housing and Urban Development (HUD). In addition, collaborating with the Indian Education program in the Office of Indian Education located within U.S. Department of Education (ED) and the state of North Carolina to create one of the largest Indian Education programs in the

United States. Leveraging state and federal interest has not always been successful, mainly considering the inability to achieve full federal recognition, but North Carolina has maintained an extensive historic relationship with Lumbees and tracing their political involvement and strategy of resistance goes as far back as statehood. Figure 9 provides a synopsis of key events I have identified in Lumbee history to portray the tribal-state relationship.

Lumbee Timeline of Historical Events 1864- c.1872 Lowrie War 1885 NC Act establishing a separate school system 1887 NC Act creating Indian Normal School 1888 Petition for educational support (National) 1930s Farm Security Administration (National) 1952 Lumbee referendum 1950s KKK counter attack 1960s Robeson County Double Voting Figure 9: Examples of Lumbee Political Involvement The Lumbee story is different in many ways because of their early recognition, but the

Lowrie War offers a distinctive example of how they were able to resist racial discrimination in the state. In 1790, the United Stated Census considered Lumbees among "all other free persons of

90 color,” which classified them as neither white nor black.149 This classification left the Lumbee people in limbo and the white population opposed the Lumbee right to vote in state and local elections. During the Civil War, the Lumbees became entangled in a continued fight to maintain a separate identity in a racially divided South.

Throughout and after the Civil War, race relations in Robeson County were strained and many of the Natives began resisting unequal treatment by their white neighbors. Outside of the several Lumbees who served in the artillery infantry for the Confederate Army under their own will, many indigenous people were assigned manual labor during the war as other “free persons of color” rather than serving in a military regiment.150 Many of the men found their assignments to be demeaning, vocally opposed the designation, and fled the camp and assignment posts to return home.

While the men were away, the Home Guard, an organized militia charged with the responsibility to capture and return the Confederate Army’s escapees, led by the area’s conscripting officer James Brantley Harris antagonized the Lumbee women and families left behind. In addition, the Home Guard frequently stole livestock, crops, and land from the Lumbee community. The tension created by being away from home and knowing that their families were harassed, led to an organized Lumbee resistance in the form of guerilla warfare. The War led by

Henry Berry Lowrie sought retribution for the cruel and in some instances violent treatment of

Lumbees in the community. From 1864 to 1874, “Reacting to the violence against the Indians in like fashion, blood for blood, Henry Berry Lowrie and his ‘gang’ became the scourge of

149 “Origins.” 2009. Lumbee Tribe of North Carolina. (accessed 12 May 2009, http://www.lumbeetribe.com/History_Culture/History_Culture%20Index.html#Reports). The website no longer features portions of the reports. 150 Personal communication with Historian Forest Hazel, June 26, 2014.

91 Robeson County for a decade.”151 Although Henry Berry never publicly named the war as political resistance, all of the victims, except for two Republicans, were conservative Democrats who opposed Indian and black voting.152 Lumbee opposition displayed during the Lowrie War threatened the hierarchy of race relations in North Carolina at both the local and the state level.

In 1885, North Carolina extended state-recognition to the Lumbee Tribe.153 The Act begins with the declaration, “Whereas the Indians now living in Robeson County claim to be descendants of a friendly tribe who once resided in Eastern North Carolina on Roanoke River, known as Croatan Indians.”154 The 1885 Act that identified them as an “Indian” community was the result of Lumbee leaders resisting local segregation after the Civil War. Once segregationist policies began at the end of the nineteenth century, the white schools in Robeson County denied

Indian children access, the Lumbee parents refused to send their children to the black schools, and they petitioned for the establishment of a separate school system for their children. The education arena allowed Lumbees to participate across political spaces. The Act created an opportunity for Lumbees to continue to maintain a distinct community through the establishment of a separate school system. An 1887 Act that established the Indian Normal School, now the

University of North Carolina at Pembroke, appropriated $500 for the land and the building. The leaders found the appropriations insufficient, which led to community members donating the land and building the actual structure for the original school. This level of community involvement and ownership continued to the subsequent individual community schools. One way

151 Dial and Eliades, The Only Land I Know: A History of the Lumbee Indians, 58 152 Lowery, Lumbee Indians in the Jim Crow South: Race, Identity, and the Making of a Nation, 16. 153 Originally recognized by the State under the name the Croatan Indian people then several other name changes designated by the State General Assembly of North Carolina until the 1953 tribal referendum authorizing the adoption of the Lumbee name. 154 North Carolina General Assembly, An Act To Provide for Separate School for the Croatan Indians in Robeson County, (Raleigh, NC: McMillan, 1885). It should be noted that once Honorable Hamilton McMillan read the proposed bill to community leaders they objected to the name “Croatan.” Arguing that they are “Hatteras” people and that “Croatan” is a location. See also Barton, The most Ironic Story in American History: An Authoritative, Documented History of the Lumbee Indians of North Carolina., 4. [Emphasis added]

92 the leaders, acting as political actors, attempted to leverage state and federal interest was the

1888 petition to the Bureau of Indian Affairs to provide funds for the school because of the state’s unwillingness to appropriate additional resources.155 The petition was unsuccessful, but demonstrates how Lumbees have developed a strategy to participate in a federalism arena, for this instance educational financial assistance, to remedy a problem the state would not address.

Establishing the separate school system also acknowledged an important aspect of self- governance through student admissions to their schools. The admissions Committee, also known as the “Blood Committee,” comprised community members who determined the eligibility of each child to attend the schools as well as selected the teachers. The Committee’s scope of powers included determining whether the students and their families were members of the community. An amendment to the 1885 Act excluded “all negroes ‘to the fourth generation’ from the privilege of attending said schools.”156 Even though the Lumbee community adopted the racial classifications determined by whites, the most essential expression of sovereignty is the ability to determine community membership, and the Act recognized that ability and authority.

The separate school system—and churches—allowed the Lumbee community to establish definitional boundaries that physically and figuratively separated the people from the white and black communities. Although those boundaries are not as tightly controlled today, as during segregationist eras, many people in Robeson County believe the geographical spaces continue to distinguish and separate the white, black, and Lumbee communities.

The rationale why the General Assembly extended state recognition to the Lumbee is unclear, but many presume that the Democratic Party was trying to garner voter support.

155 This petition is considered by the tribal government and the community at large the first attempt to receive federal recognition. 156 Quoted in Nathan McMillan v. The School Committee of District No. 4 (Croatan), 1890.

93 “Following a political revolt in 1878 that sent a Greenback157 candidate to Congress from the adjoining district, the Democrats, as the Conservatives were now called, sharply reversed their policy toward the Indians. Now they began making concessions to the Indians and soliciting their votes.”158 Another possibility is that the Lowrie War was still fresh in the minds of state officials.

The retaliation that occurred during that period could very well happen again. Possibly a less cynical justification lies in the friendship between Lumbee leaders and Honorable Hamilton

McMillan. North Carolina’s State Representative McMillan became an advocate for the Lumbee people and sponsored the 1885 Act.

The reasons for this political courtship deserve more research to better understand

Hamilton McMillan’s acknowledgment of the Lumbee people as a distinct group. Whether it is the romantic notion of the Lost Colony descendants or the potential political capital that these

“free persons of color” possessed, I believe both arguments are really at the heart of this relationship dynamic. Bruce Barton explains, “Mr. McMillan, who had the best interests of the

Indians at heart, however, believed that this designation [Croatan] would serve to draw attention to the glorious ancestry of the Indians.”159 Why is the romanticized Lost Colony theory important? How does emphasizing this theory benefit the Lumbee people? Does it suggest as descendants of the Lost Colony that European blood contradicts their “Indianness” and inability to create a space in modern society? In the Northeast, according to O’Brien,

Not only did ideas about racial and cultural purity disqualify Indians of mixed descent for

Indianness in the New England imaginary, but legal and bureaucratic processes operated

against Indian ‘recognition’ as well. Connecticut, Massachusetts, and Rhode Island all—

157 The Greenback political party was formed as supporters of the “greenback” currency used by the North during the Civil War. 158 William McKee Evans, to Die Game (Syracuse: Syracuse University Press, 1995), 253. 159 Barton, The most Ironic Story in American History: An Authoritative, Documented History of the Lumbee Indians of North Carolina., 4

94 in complex ways—took measures to ‘terminate’ their recognition of the political status of

tribes within their boundaries in the mid- to late nineteenth century.160

The image of Natives during the 19th Century became more race-based insisting that the degree of “Indian blood” determines the ability to function within a modern society. Even describing the community as a “friendly tribe” in the 1885 Act suggests that the Lumbee people were an exception to what the rest of white America understood as being indigenous during that time. If they were “unfriendly”, would it discredit their ability to engage with the state? It is hard to tell whether that argument took place, but I think it created an opportunity for the Lumbees to establish a seat at the table within state politics and it is intriguing especially considering that other Southern states (and those on the east coast) were eagerly trying to erase the Native presence.

Most Southern states purposefully created a white-black binary. The Lumbees refused to be classified within the binary or ignored and prompted the leaders to play an active role in the

North Carolina political system. Where other Native communities resisting termination had land recognized through treaties and/or reservations, the Lumbees did not face such termination due to their land holding status. According to O’Brien, “Recognizing Indians entailed fulfilling obligations to them with regard to protecting their lands and other resources and attending to their needs under the system of guardianship that had organically developed over more than two hundred years of colonialism.”161 By the late 19th Century, some Lumbees held their land in fee and their pursuit of a separate school system did not seem to jeopardize their status or create

160 O’Brien, Firsting and Lasting: Writing Indians Out of Existence, xxii . Termination occurred at two different periods in United States’ history in the late 1700 & 1800s mainly with eastern Native communities and their home states and then in the 1950s as an official Act passed by the federal government. 161 Ibid., 148.

95 friction because it would require little investment by the state.162 The dynamic leadership also played a key role in this relationship.

Each Lumbee community has its own leaders who range from heads of families, teachers, preachers, deacons of churches, and other elders within the community. Lowery describes

Lumbee leadership as “decentralized” and “contested.”163 I would add that leaders are also well respected across the various Lumbee communities and non-Lumbee members. Traditionally, the eldest community member made decisions and when outside forces threatened the Lumbee people at large, those leaders came together to make a decision for all of the Lumbee communities. Those decisions and discussions often took place in the church because it served as a common place for the people to meet, and more importantly, it was their space, created and sustained by the people. In an effort to mitigate outside forces, many of the Lumbee leaders became involved in North Carolina politics, holding offices on the local level as well as supporting friendly white local politicians.

The white community in North Carolina was not always accepting of Lumbee political involvement in the state that led to many competing interests. Evans argues, “The Democrats did not believe that the Indians should have the same rights as whites, but merely that they should have more rights than Negroes.”164 When the Town of Pembroke was incorporated in 1895, the citizens were allowed to vote for a mayor and the town’s commissioners. Although the white population was the minority, they continued to control the town government. “This arrangement prevailed until 1917. By that year the composition of the town’s population had become

162 The Act mandated that the state appropriate $500 for salaries. Community leaders found the money to be inadequate, so they donated the land and built the school. 163 Lowery, Lumbee Indians in the Jim Crow South: Race, Identity, and the Making of a Nation, 60. 164 Evans, to Die Game, 253.

96 overwhelmingly Indian, and they began to demand a voice in the town government.”165 The white community refused to relinquish control over the town and sent a delegation to the state to change the method by which political officials were chosen. As a result, the governor appointed town officials, “thus insuring white control of the municipal government for the next thirty years.” 166 Through those years, North Carolina appeared to support or uphold Lumbee political involvement in town affairs as long as it did not interfere with or threaten the political power of the white community in the area.

Lumbees resisted efforts to classify them within an overarching non-white status and adapted by adopting a political actor strategy that included actively participating in state and local politics. O’Brien describes the Native communities in New England resisting their effacement by adapting to the changing world around them.167 The Lumbees recognized their political involvement as a resource to resist racial discrimination in the South. Since the 1885

Act, the Lumbee community has organized politically in a variety of ways. “Power within these

Indian localities, for the first half or more of the twentieth century, was rooted in the school system.” 168 Once desegregation began, the power to self-determine through the separate school system was threatened. Lumbees seem to come together for collective decision-making when there is an external threat to the entire Lumbee community. Outside of external threats, families and individual Lumbee communities serve as important decision makers in a decentralized fashion. When important matters needed to be addressed, each community met at the local church to make those decisions, for instances, appointing a person to serve on the Blood

165 Dial and Eliades, The Only Land I Know: A History of the Lumbee Indians, 143. 166 Ibid. Even though the majority composition of the town officials were white, Indians were appointed as Commissioners, however, they were never the majority and did not serve as a mayor until 1947. Confirmed in personal interview with the author, July 16, 2013. 167 O’Brien, Firsting and Lasting: Writing Indians Out of Existence, 145. 168 Sider, Living Indian Histories: Lumbee and Tuscarora People in North Carolina, 31.

97 Committee. This practice of organizing through the church continues today. The process of drafting a constitution began with each community sending a delegate to serve on the constitution’s committee chosen by members of the churches. Voting for those delegates took place during Sunday worship as a part of church business. Lumbees knew the risk of being absorbed into the non-white population and narrative. The way to resist was through political activism, which created cohesiveness in the community.

It has been, in important ways, an expression of Indian political skill to get such work

done in the Indian areas, and in the two or three decades after World War II it seems to

have been done most efficiently and effectively in the core areas of the Indian regions of

the county- places where the Indian population was substantial, community institutions

strong, and the Indian leadership effective in delivering votes and mobilizing people.169

Double voting was a contentious practice in Robeson County during the 1960s. Used as a tool to allow the white community to maintain control in the County, double voting meant rights to vote for school boards for town schools and for county schools. Town schools mainly served the white and black populations, while the majority of county schools were made up of Indian children. “When town residents voted, they voted both for their own school board members and also for the members of the county school board, thus giving Whites control of the county schools as well as those in town.”170 Double voting also ensured white control of allocated funds to the schools. This practice was not the only way the white community attempted to control the elections in Robeson County.

Another practice included Board of Elections workers requiring potential Native voters to read a Chinese newspaper upside down in their effort to register to vote or mandate they recite

169Ibid., 13. 170Ibid., 42. [Emphasis in original]

98 and interpret the United States Constitution.171 After the successful disbandment of double voting, the number of Lumbees registered to vote doubled. With an active campaign to increase

Native registered voters, Lumbee political influence began to rise. Resisting the discriminatory tactics employed in Robeson County allowed leaders to become more involved in both the local and state offices.

Lumbee political activism and resistance created an opportunity to build a relationship with the state of North Carolina. One example that many refer to as illustrating the uniqueness of the relationship is the 1952 Lumbee referendum. In the 1950s, the community came together to formally adopt the Lumbee name and organize as a collective body by a tribal referendum. The people did not have access to the financial resources to conduct the vote, so the state provided the county election board services by opening and running the polling site and counting the results. Lumbees recognize that the state did not have to provide assistance for their tribal referendum. Another unlikely ally came during the 1950s, when the Ku Klux Klan (KKK) planned a rally in the nearby town of Maxton. The Sherriff of Robeson County understood the chaos that this rally would cause because of race tensions in the area so he warned the leader,

James “Catfish” Cole, not to come to town. Cole held the rally on the night of January 18, 1958 despite the Sherriff’s warning with the intentions “‘to put the Indians in their place, to end race mixing.’”172 Before the rally convened, in a matter of minutes approximately 350 Lumbees swarmed the rally site and shot out the single light bulb that lit the dark and vacant field. That night Catfish Cole and his KKK gang discovered the power of the Lumbee people in a counter attack documented not only in Robeson County, but also around the nation as both Life and

171 Personal interview, July 17, 2013. 172 Quoted in Ibid.

99 Time Magazines featured the event. The night that the Lumbee drove out the Klan reinforced the sense of power within the community to act collectively against discriminatory forces.

Lumbee active political involvement progression has led to organized efforts to develop a relatively productive relationship. North Carolina politics tend to represent a moderately progressive ideology compared to the rest of the South, but continue a tradition of conservative values. “North Carolinians often split their votes between national-level Republicans and state- level Democrats, typically supporting Republican presidential candidates but electing

Democratic governors and state legislators.”173 Democrats in North Carolina tend to lean toward a more conservative identity than elsewhere in the United States. North Carolina is known for its progressive support of industry, public education, and race relations. To outsiders looking in, it may seem that North Carolina was more progressive than the rest of the South, but the state continued to support racial segregation and white supremacy policies in the 19th and 20th centuries. “Despite North Carolina’s history of racism and white male dominance, many scholars have argued that by the early twentieth century, the state was actually quite enlightened.”174

Many credit the contemporary progressive or enlightened attitude to the influx of the non-native

North Carolinian population from other states, mainly northern states, through the research and banking industries. Its progressive ideology has a created environment where the state’s Native population, especially Lumbee, can actively participate in the political landscape to create change and ensure that their voices are being heard.

“If You Are Not at the Table, You Are On the Menu”: Getting Things Done Through Lumbee Social and Political Organization

173 Christopher A. Cooper and H. Gibbs Knotts, eds., the New Politics of North Carolina (Chapel Hill: The University of North Carolina Press, 2008), 5. 174 Eamon, Thomas F. “The Seeds of Modern North Carolina Politics”, The New Politics of North Carolina, 17.

100 Community members know whether you are from the community by your connection to families, schools, and/or churches. Ryan Anderson describes the community: “Among Indians, kinship was essential and the reciprocal obligations created by kinship allowed destitute

Lumbees to survive. Kinship ties consisted of social obligations created by exchanging gifts.

These ties gave a sense of identity to Indians that enabled them to distinguish themselves from other people.”175 Within the umbrella of Lumbee identity, Maynor Lowery (2010) separates the people in two groups, “town” and “swamp” Indians as starting to take shape during 1900 and

1930. The “town Indians” were considered the more progressive of the two because of their interaction with the white community in town (Pembroke); the “swamp” Indians had less contact with outsiders and continued to organize around traditional kin and land settlements.176 These groups created factions within the larger Lumbee community and contention remains today between those who live in the town of Pembroke and those who live in the “country”, outside the town limits. Although there is still a sense of knowing who is a part of the community, people have become more mobile causing them to move to and from the area, whereas before, many members remained in the same place, especially if they owned land.

Land has played an important role in maintaining Lumbee identity and standing among the people. Land holdings, particularly, have connected the community with families, churches, and schools. M. Lowery describes the first record of Lumbee landholdings in three forms from the 1730s to the 1790s: first, as land grants from the English monarch prior to the Revolutionary

War; second, given a right to purchase by a settler; or third, Lumbee families occupied the land prior to settlement and continued to do so.177 Traditionally, Lumbee land settlements were kept

175 Ryan K. Anderson, "Lumbee Kinship, Community, and the Success of the Red Banks Mutual Association," American Indian Quarterly 23, no. 2 (1999), 43. 176 Lowery, Lumbee Indians in the Jim Crow South: Race, Identity, and the Making of a Nation, 59. 177 Ibid., 7.

101 in the family. “Settlements consisted of several extended family groups linked through marriage.

Typically, the dominant families owned land, and children, spouses, grandchildren, and great- grandchildren clustered around the family’s holdings and worked the farms as a cooperative unit.”178 This cooperative unit continues to a lesser degree in contemporary Lumbee communities; however, families maintaining land holdings remain a significant bastion of community leadership. These leaders are vocal about the importance of keeping land within the family and avoiding selling it to non-Lumbees. Of several distinct Lumbee communities in

Robeson County, Prospect is considered to be the core of the Native community and has the reputation of Lumbee landowning that exceeds other communities. Prospect has maintained a significant amount of Lumbee land holdings among the main families within the community.

Traditionally, the land was not sold to non-Lumbees, but passed down through generations or sold to family members to control the community cohesion.179 The practice of familial land holdings maintains a physical space for Lumbees to assert who they are. Driving down a street, members are able to identify families within the communities as well as non-community members. Whereas, white landowners typically live in the town of Lumberton, the county seat, approximately 20 miles from Pembroke, there are a couple of small pockets (consisting of two- to-three houses) of black and white landowners throughout the traditional territory surrounded by

Lumbee families. Each community knows exactly where those pockets are located and how they came to exist.

White creditors foreclosing on land and illegally acquiring much of the land threatened community cohesion. Although foreclosures during the early 20th Century left many Lumbee families landless, others found a way to maintain their connection to their home place by

178 Ibid., 11. 179 Anderson, "Lumbee Kinship, Community, and the Success of the Red Banks Mutual Association," 53-54.

102 becoming sharecroppers. In the 1930s, the Farm Security Administration (FSA) as a part of the

New Deal era created a program to assist Indigenous sharecroppers during difficult economic times. With the county sanctioning these illegal practices and the state unwilling to provide relief, Lumbees again found an arena to petition the national government for assistance, this time as a way to (re)acquire traditional land. The FSA incorporated the Red Banks Mutual

Association (RBMA), located on the outskirts of the Prospect and Pembroke communities, in

1938 to settle families on a large tract of land leased from the federal government for shares of the crops.180 Just as the Blood Committees served as a board surveying admissions to the schools, a selection committee determined which families would live in the Red Banks settlement. RBMA lasted approximately thirty years, before the remaining families requested to dissolve the association of its 99-year lease with the federal government and became individual fee parcels, which was their initial intention in creating such an agreement. Anderson describes the outcome of the Association:

The RBMA did not give the members a substantial amount of cash flow, but it gave them

a means of subsistence and kept them out of the influence of those who would hinder

their progress on a racial basis. It allowed them to strengthen their kinship ties within

their community, which benefited the Lumbees as a whole because it supported cultural

stability.

The Red Banks experience perpetuated Lumbee culture through kinship practices of assistance and resource exchange. Cultivating large tracts of land required assistance from individual families and extended family members in each community creating a reciprocity system that

180 Lowery, Lumbee Indians in the Jim Crow South: Race, Identity, and the Making of a Nation, 173. According to several people I spoke with from the Prospect community, Red Banks would be considered a part of the Prospect or Pembroke community depending on which school a person attended, but when asked they refer to being from Red Banks.

103 allowed resources to be shared. That philosophy continues today with smaller farms and families. A common saying in the community is, “you never know if you’ll need help with your own crops;” or “we’ll help take care of your crop, help us with our big crop.” This philosophy extends the physical spaces of scattered Lumbee communities.

I have argued throughout this chapter that Lumbee leadership and organization was traditionally decentralized in the form of individual communities made up of families. Maynor

Lowery indicates, “An Indian’s sense of ‘Indianness’ stemmed first from his family and locality and second from the group as a whole. At the end of the nineteenth century, their identity as a people did not reside in a governmental body that exercised influence over all group members.”181 Therefore, a centralized government was a foreign concept to Lumbee organization.

Lumbee Tribal Government Employee: Kinship, Lumbee community is based on kinship. Religion, that’s one of our greatest, one of things that has kept us together is kinship and religion. And one thing that is interesting in describing, in the acknowledgement process one of the criteria requires you to demonstrate political autonomy and what they look at historically is that they want you to be able to have a governmental structure like we have now. Historically, we didn’t have that. Historically, a lot of Indian tribes didn’t have that, federally recognized and non-recognized. Because what you had was, you had the heads of households that came together in the different communities and you could argue…You could go to different churches. You could be a Methodist, you could be Lumbee River Holiness Methodist, you could be free-will Baptist, but when a problem arose those heads of households came together in those communities and came together as a tribe to address those issues, like 1958 when the Klan came. You had Indian communities from Rowland, the Fairgrove area, the Saddletree area, Pembroke they all came together for one cause. When we are threatened, we will come together and put those differences aside.

The Red Power Movement taking place on the national scale in the 1960s and 1970s influenced and empowered Lumbee communities on the local level to collectively organize on a larger scale in a more centralized fashion. In 1968, the leaders organized a non-profit that exists today, the

Lumbee Regional Development Association (LRDA) to serve as a collective voice for the

181 Ibid., 60.

104 Lumbee people, develop a tribal roll, and administer the United States Department of Housing and Urban Development (HUD) funds. LRDA functioned as a governing body in the form of a board of directors’ structure until adopting a constitution in 1994 created a tribal government.

Throughout my interviews, many referred to the Tribal Council as functioning more as a non- profit because of the LRDA era frame of reference.

A common strategy for many state- and non-recognized Native nations is creating a nonprofit to serve as a collective body within the state. The nonprofit status allows these communities access to resources that otherwise would not be available. For instance, the Lumbee tribal government land purchased I discussed in Chapter Three was originally incorporated with a 501(c)(3) status by the state, which allowed the community to acquire it and not suffer the tax burden that would accompany fee simple title—without the status it is unlikely the land acquisition would take place. The nonprofit status required the creation of a board of directors; the board with the help of community members managed the land and resources.182

Organizing to create a collective voice and a point of contact for an outsider to negotiate with was an important aspect for the leaders. I would argue the collective body does not accurately represent Lumbee decision makers because they still reside in individual Lumbee communities and families; however, a collective body made interacting with the state and the federal government easier. Figure 10 provides a comparison chart of Lumbee traditional and contemporary collective organization.

Lumbee Social and Political Organization Traditional Contemporary Kinship Lumbee Regional Development Association

182 North Carolina General Assembly, Joint Legislative Program Evaluation Oversight Committee, An Act to Terminate Leases at the Indian Cultural Center Site and Then Sell or Allocate Certain Portions of the Property, as Recommended by the Joint Legislative Program Evaluation Oversight Committee: Report (to Accompany H. 60), North Carolina General Assembly, Session 2013, 2012, Report No. 2012-13, 3.

105 (LRDA) “Town” and “swamp” Indians Lumbee Tribe of North Carolina Constitution Decentralized & autonomous communities Three-branch system Only came together as a collective for external • 21-elected council representing 14 threats districts • An elected Chairperson • Supreme Court with five judges Figure 10: Lumbee Social and Political Organization Today, the Lumbee Tribe of North Carolina has a constitutional form of government with a three-branch system with a 21-elected council representing 14 districts, an elected Chairperson, and a Supreme Court with five judges. The majority of my interviewees agree that the Tribal

Government functions as a hybrid of a nonprofit organization and a national government.

The nonprofit strategy serves to build the community, access, and acquire resources. “In

2008, the Tribe leveraged $400,000 of NAHASDA [Native American Housing Assistance and

Self Determination Act] funds [with private dollars] to create a $7.5 million low income housing tax credit project. The project is comprised of 50 single-family energy star certified units with three bedrooms and two baths. This was the first project of its kind in North Carolina.”183 In

2009, The Fayetteville Observer reported that the Lumbee tribal government owned more than

“$51 million in new homes, rental properties, Boys & Girls Clubs and Community Centers and a

$4.5 million housing complex.”184 The tribal government was able to open a free health clinic to its members through a community block grant as well.185 These assets and others have allowed the tribal government to obtain a loan to purchase land and develop other things to meet the needs of the people. The problem with depending on government grants is another entity holds the purse strings—some of the HUD money Lumbee receives is in the form of community block

183 Oversight Hearing: Identifying Barriers to Indian Housing Development and Finding Solution, Before the Senate Committee on Indian Affairs, 113th Cong. (2013) (statement of Paul Brooks, Chairman of the Lumbee Tribe of North Carolina). 184 Venita Jenkins, "Lumbee Tribe Builds Capital, Success," The Fayetteville Observer.2009. 185 The health clinic has since closed due to the lack of funds to sustain it.

106 grants where there is more flexibility to spend—and although there are aspects of self- determination in a nonprofit strategy, it restricts actual nation building.

One new tool the tribal government has recently explored to develop an economy is through 8(a) Business Development Program certification. The Small Business Administration lists state-recognized individuals and governments as eligible to apply for federal contracts. The process includes certifying tribally owned corporations.186 Building a sustainable economy— along with the other tools of nation building—would really allow the Lumbee tribal government to exercise self-determination rights outside of a nonprofit strategy. One participant explained to me that he thinks building an economy is the way to achieve federal recognition.

Lumbee Tribal Official: We have never been able to promote federal recognition in the proper way in relation to what it will mean. The reason I say that, we always talk about federal recognition in relation to being federally recognized as a tribe doing things and most people think of it as a gambling situation or that kind of stuff. See, we have never been able to publicize ourselves as an economic movement and sell it that way. […] If they would get behind federal recognition the same way, you are talking about the economic effect in relation to this region, not just with the Lumbee people because you are talking about money grows when you put it out there to work. And it would grow to an enormous amount that would help alleviate some of the problems that we have in budgeting in the state of North Carolina.

The Tribal Official views the previous petitioning the national government for federal recognition strategy as misinformed. His argument is to build a Lumbee economy as an economic incentive for outsiders to fully support federal recognition for the Lumbee people. This is completely different strategy from what other leaders have pursued in the past. Previous efforts focused on petitioning the national government for federal recognition to become economically self-sufficient, which are compelling considering the resources available to federally recognized Native nations. However, some of the resources now available to state-

186 Lumbee Tribe of North Carolina, "8(a) Certification and Economic Development," Lumbee Ledger. December 2014.

107 recognized peoples, especially, 8(a) contracting provides opportunities for federally and state- recognized Native nations to build their communities. The 8(a) tool is another example of arenas provided within the federalist system.

Economic and political arenas have opened the doors to an interesting partnership between the Lumbee tribal government and the federally recognized Catawba Nation of South

Carolina. South Carolina regulations prohibit the Catawba from establishing a gaming casino in the state; however, traditional Catawba territory stretches over into the present-day North

Carolina boundaries. The Catawba tribal government purchased land in the Kings Mountain area of western North Carolina not too far from the Eastern Band of Cherokee Indians, the only federally recognized Native nation in the state and happens to operates a very lucrative casino of its own. The Eastern Band has publicly opposed the construction of a Catawba facility, just as some of its citizenry have publicly opposed Lumbee federal recognition. Catawba political leaders have recently openly supported Lumbee federal recognition and participated—the only federally recognized nation represented at the meeting—in a state-recognized Native nations meeting held in Pembroke to discuss the North Carolina political landscape.187 One could probably infer that this new relationship has a lot to do with the Lumbees ability to participate in the state’s political arena and, moreover, exert political influence for Catawba interest all the while the Lumbees receive a local federally recognized friend and vocal supporter for Lumbee recognition.

Despite the success with the nonprofit strategy and participating in financial arenas, many would agree the Tribal Council is experiencing growing pains. I would argue the tribal government is trying to figure out how to govern internally in a more centralized fashion

187 Gale Courey Toensing, "NC's Newest Voting Bloc: State Tribes Support Hagan," Indian Country Today Media Network.2014.

108 compared to the traditional decentralized structure that families are more accustomed to, but tools are becoming available to explore self-determination and nation building options.

An Example: Lumbees and Indian Child Welfare

Lumbees petitioning the state of North Carolina to provide an exception for their children in the foster system demonstrates the ability of utilizing federalism arenas in a way to promote self-determination. Over the past 10 years, the Native communities in North Carolina have demanded more cooperation from the state to address the welfare of their children. Native child welfare issues have garnered a lot of attention especially since the Adoptive Couple vs. Baby Girl

(2013)188 case that challenged the application of the 1978 Indian Child Welfare Act by the State of South Carolina. The 1978 Indian Child Welfare Act (ICWA) seeks to keep Native children with Native families, but the legislation only serves federally recognized Native nations.

Collaboration efforts with the state of North Carolina and the state-recognized Native nations in the state, especially Lumbees, created a way to address the need to place state-recognized Native children in state-recognized Native homes, a factor neglected in the federal policy. This remedy demonstrates how Lumbees are active in addressing community needs without the federal acknowledgement classification by using federalism to their advantage.

Prior to the passing of ICWA, public and private organizations placed Native children in non-Native homes by at a high rate. ICWA acknowledges the cultural importance of Native children raised in Native homes, as well as recognizing exclusive tribal jurisdiction over child custody proceedings including foster care placement, termination of parental rights, pre-adoption

188 Adoptive Couple vs. Baby Girl, 133 S.Ct. 2552 (2013)

109 and adoption placement.189 The legislation declares the federal government through ICWA seeks to protect the interests of Native children, Native nations, and Native families through removal and placement federal standards.190 Many view this legislation as an affirmation of Indigenous rights to control what happens to their children. “The positive results of the Act are many, including greater respect for tribal authority over the placement of Indian children and an expansion of tribal family preservation programs.”191 Having the authority to determine placement of Indian children is an assertion of sovereignty and recognition of tribal jurisdiction.

In its simplest terms, ICWA appreciates the importance of familial connections in Native communities, “’the dynamics of Indian extended families,’ which play a central role in Indian childrearing, and its determination that state courts had badly ‘misunderstood’ that dynamic.”192

Under federal Indian policy; however, state-recognized Native nations are limited in their efforts to protect their children even though they are placed in non-Native homes just as frequently as federally recognized children are.

The concern to keep state-recognized Native children within their communities is just as strong as it is for federally recognized children. Common factors among many state-recognized

Native nations are the importance of kinship and place. The community comprises extended families, churches, and schools that have enabled them to maintain a strong sense of identity in a particular place. “Most Native Americans, including those in North Carolina, place tremendous

189 Brown, E. F., Casey Family Programs., & National Indian Child Welfare Association. Tribal/state Title IV-E intergovernmental agreements: Facilitating tribal access to federal resources (Seattle, WA: Casey Family Programs, 2000). 190United States. Indian Child Welfare Act (Washington, D.C.: The Office, 1978). 191 Barbara Atwood, "The Voice of the Indian Child: Strengthening the Indian Child Welfare Act through Children’s Participation," Arizona Law Review 50, no. 1 (2008). See also Ryan Seelau, "Regaining Control Over the Children: Reversing the Legacy of Assimilative Policies in Education, Child Welfare, and Juvenile Justice that Targeted Native American Youth," American Indian Law Review 37, no. 1 (2012), 63-108. 192 “Brief for the United States as Amicus Curiae Supporting Affirmance.” Adoptive Couple v. Baby Girl, A Minor Child Under the Age of Fourteen Years, et al. Supreme Court of the United States. (http://sct.narf.org/documents/adoptivecouplevbabygirl/us_amicus_brief.pdf, accessed April 9, 2013)

110 importance on a sense of place—they came from here, whereas everyone else came from somewhere else. Therefore, their identity is intertwined with the local geography.”193 The importance of place represents something literal, as Oakley explains in geography, e.g. Robeson

County, Pembroke, Prospect, or the Back Swamp community, but it also operates figuratively as an identifying marker of the community including holding the same values, and a common understanding of what it means to be Lumbee. “Therefore, one’s identity is not completely ascribed at birth but it is, at least partially, a matter of choice.”194 “Are you from here?” is a common question posed in the Lumbee community to people who are deemed outsiders. The question magnifies the distinct connection the community has with place. Many community members identify the Lumbee place as “home,” the “home place,” or being “from the house.”

The community has been able to sustain its distinctiveness through the establishment of Lumbee schools and churches in a racially divided South. Just as the leaders were worried about their children’s well being during the segregation era and generated separate schools for Lumbee children taught by Lumbee teachers, today’s leaders are concerned with where their children are being placed once they are taken from Lumbee homes. Connecting to the children transfers and maintains Lumbee identity; children placed outside of the community jeopardize the maintenance of Lumbee identity.

The North Carolina Commission of Indian Affairs has received an overwhelming number of inquiries and complaints over the years concerning Native child welfare practices for both state-recognized and federally recognized children. Without a formal protocol to address these inquiries and the pressure to recognize the cultural distinctiveness of Native children in North

Carolina, set the stage for legislative action. In 2001, a statute requiring collaboration between

193 Oakley, Keeping the Circle: American Indian Identity in Eastern North Carolina, 1885-2004, 12. 194 Ibid., 10.

111 the Division of Social Services, the Commission of Indian Affairs, and the North Carolina

Directors of Social Services Association was enacted and led to the Commission creating an

Indian Child Welfare Task Force that has since become a standing committee. The agencies view the legislation as an attempt to create relationships so the nations would receive notice when a

Native child is placed in foster care or for adoption, to recruit more North Carolina Native foster and adoptive parents, and train social workers on North Carolina indigenous culture and history.195 The statute created a way to communicate and address needs with the State of North

Carolina, however, the state Department of Social Services and local DSS agencies neglected to provide meaningful collaboration with the Native communities. Just as I was surprised to find the statute when I began my research, others working within these agencies did not know the statute exists. Figure 11 summarizes the key events that shaped the NC ICWA legislation.

NC ICWA Timeline of Events 2007 Tribal government initiative to increase Lumbee foster homes 2009 NC bill submitted to General Assembly “House Study Committee to Preserve the Culture and Customs of Indian Children.” Lumbee Tribe collaboration with the Robeson County Department of Social Services developed an intake form 2011 National Child Welfare Resource Center on Legal and Judicial Issues and the National Child Welfare Resource Center for Tribes (NRC4Tribes) hosted a “Training/ Technical Assistance” conference Figure 11: NC ICWA Timeline of Events In 2007, the Lumbee tribal government initiated efforts locally to increase Native foster parents with the help of community churches. These efforts were part of a larger project with the

School of Social Work at the University of North Carolina to recruit Native foster families for

Native children placement.196 Outside of the tribal government’s organized efforts to recruit

195 “Section B. State Recognized Tribes.” Family Services Manual. Volume 1: Children’s Services. 1201- Child Placement Services. E. Special Legal Considerations in Placement Decision Making. North Carolina Department of Health and Human Services. (Raleigh, North Carolina, 2009). (http://info.dhhs.state.nc.us/olm/manuals/dss/csm- 10/man/CSs1201c4-06.htm, accessed April 2, 2013) 196 Knight Chamberlain, "Sutton, Council Bump Heads," The Robesonian, sec. News, April 17, 2009.

112 Native foster families, tribal members were engaging North Carolina legislators to introduce legislation to include state-recognized communities and enforce federal child welfare policy.

“Lumbee leaders want the Robeson County Department of Social Services to do more to ensure that Indian foster children are placed with Lumbee families. The Lumbee leaders say they are concerned the foster children may lose their cultural identity if they are placed in non-Indian homes.”197 The pressure to address the placement of Lumbee children in Lumbee homes led

Honorable Ronnie Sutton (Lumbee) to introduce a bill in 2009 to the North Carolina General

Assembly House of Representatives establishing a “House Study Committee to Preserve the

Culture and Customs of Indian Children.”198 The Committee of thirteen was charged to gather information on “any issues or matters that would impact the preservation of the customs and culture of Indian children who are not covered under the Indian Child Welfare Act (ICWA) and who are the subject of legal proceedings in state courts, including adoption, custody, and visitation.”199 The Lumbee community argued that a child’s Native ancestry should not be limited to only federally recognized Native nations. Even though the statute called for collaboration and the introduction of subsequent bills to study the nature of state-recognized

Native children in the foster care system continued, no real action took place to ensure that collaboration occurred.

In Robeson County, the Lumbee Tribe continued to collaborate with the local

Department of Social Services to develop an intake form that identified Native ancestry, either federal- or state-recognized, early in the process during the initial visit. Initial visits are conducted when social workers visit the home for the first time once an incident has been filed

197 Venita Jenkins, "Lumbee Foster Families Scarce," The Fayetteville Observer., sec. Local & State, May 20, 2007. 198 “House Study Committee to Preserve the Culture & Customs of Indian Children.” Report to the 2011 General Assembly of North Carolina. (Raleigh, North Carolina, 2011). 199 Ibid.

113 with the Department. Considering that Lumbees represent the largest population in Robeson

County, their children are also approximately 40% of the children population in the County.200

Even with the large Lumbee population there is a disparity between children in the foster care system and Lumbee foster care homes. In 2012, the Robeson County Department of Social

Services noted 64 Native American children in the foster care system, but only 13 licensed

Native American parents by the Department.201 The tribal government has attempted to recruit more foster parents by holding informational sessions informing the community of the requirements to participate.

The momentum to adequately collaborate with state-recognized Native nations and create significant relationships shifted after the state underwent a federally mandated Program

Improvement Plan (PIP) in 2007. Each state undergoes a periodic Child and Family Service

Review of its child welfare system. Upon completion of the review and if the state is found to have areas of nonconformity set by federal standards, it is required to develop a PIP. The PIP highlighted the state’s inadequacies in properly identifying Native children (federal and state) early and consistently in the process. In an effort to educate all parties involved about the Native perspective of family and community, the National Child Welfare Resource Center on Legal and

Judicial Issues and the National Child Welfare Resource Center for Tribes (NRC4Tribes) hosted a “Training/ Technical Assistance” conference in September 2011 that sponsored the eight

Native nations in the state, Child Welfare and Court Partners.

200 “Children Characteristics.” 2008-2012 American Community Survey 5-year Estimates. American Fact Finder. U.S. Census, http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_12_5YR_S0901 201 Conan Gasque, "Lumbee Leaders Seek Qualified Foster Parents," SC Now. December 28, 2012. (http://www.scnow.com/news/state/article_3b490775-9bd3-5c5c-8776-ba1367fb0233.html, accessed March 27, 2014.

114 In an interview I conducted in 2013 with the Associate Counsel of the North Carolina

Guardian ad Litem program and Co-Chair of the Court Improvement Project, she stated that the

2011 conference provided answers to many questions concerning issues involving Native children from not only the perspective of federally recognized Native nations, but those from state-recognized as well.202 After the conference, each of the parties involved saw a need for meaningful discussions to begin to address possible partnerships ensuring good practices for

Indian children and state Native nations who are involved in the child welfare system. The strategy developed was to propose legislation through the Court Improvement Project because of its success and well-established vetting process.

The biggest implication of the National Indian Child Welfare Act is that it upholds and recognizes exclusive tribal jurisdiction over child placement. State-recognized Native nations in

North Carolina are considered within state jurisdiction; therefore, the state’s attempt to collaborate with these communities could not contradict federal legislation. All states are bound by the 1994 Multiethnic Placement Act (MEPA) that declares a child cannot be delayed or denied a home (foster care) based on their heritage, except race can be considered during the initial placement of children. MEPA provides specific exclusions for ICWA placement cases.203

The Court Improvement Project and the Indian Child Welfare Committee recognized that state legislation could not contradict federal legislation, i.e. MEPA, and had to negotiate with state- recognized communities to guarantee that their children were considered.

With the assistance of the Commission’s Indian Child Welfare Committee, the Court

Improvement Project identified a piece of legislation that could assist in coordinating with state

Native nations. In North Carolina once the state removes a child from the home, a placement

202 Personal interview, Deana Fleming, April 5, 2013. An interdisciplinary program to review state statutes, improve courtroom practices and procedures, cases from appellate courts, etc. 203 42 U.S. Code § 674 - Payments to States

115 hearing is held. Trying to expand state-recognized collaboration as well as keeping within federal regulations, the committee determined that ethnicity could be considered at the onset of placement as long as the child is not withheld from placement or taken away from a home because of race. North Carolina considers a hierarchy of instances to determine child placement.

The ideal placement of a child who is removed from one parent would be with the other parent.

If the other parent is not available or both the parents were together during the incident, then they are no longer considered and a relative is the next in the priority hierarchy. The committee considered if a relative is unavailable then the next in the hierarchy would require a new definition, a ‘non-relative kin.’204 The new definition sought to comply with the MEPA exception and was introduced in House Bill 350: Court Improvement Project Juvenile Changes

(a consensus bill), which proposed modifications to General Statute 7B-505 of the Juvenile

Code. The proposed changes to Section 13: Placement while in nonsecure custody, inserted a new subsection:

(c) If the court does not place the juvenile with a relative, the court may consider whether

nonrelative kin is willing and able to provide proper care and supervision of the juvenile

in a safe home. Nonrelative kin is an individual having a substantial relationship with the

juvenile. In the case of a juvenile member of a State-recognized tribe as set forth in G.S.

143B-407(a), nonrelative kin also includes any member of a State-recognized tribe or a

member of a federally recognized tribe, whether or not there is a substantial relationship

with the juvenile. The court may order the Department to notify the juvenile's State-

recognized tribe of the need for nonsecure custody for the purpose of locating relatives or

nonrelative kin for placement. The court may order placement of the juvenile with

204 Personal interview, Deana Fleming, April 5, 2013.

116 nonrelative kin if the court find the placement is in the juvenile's best interests. [Emphasis

added]205

Section 14. “Hearing to determine need for continued nonsecure custody,” includes a new subsection 2(a) with the same language in Section 13 requiring the courts to consider

“nonrelative kin” when placing members of state-recognized Native nations. The new definition resembles ICWA provisions for placement hierarchy considering family members first, other tribal members second, and then other non-member Native families. The Governor signed the bill into law in June 2013. The statute acknowledges the significance of community for state- recognized Native children. The state has since formerly adopted the intake form created in collaboration with Lumbee tribal officials and the Robeson County Department of Social

Services. It also creates a way for state-recognized Native nations to coordinate with local DSS agencies to address recruitment efforts for more Native foster families and coordinate child placement with similar background families. All of the credit should not be given to Lumbees because members of other state-recognized Native nations actively contributing in this effort; however, I do believe the political influence of Lumbees forged a way to ensure that the state would act.

Many members of the Lumbee community recognized that the statute lacks teeth for enforcement and a lot of the authority remained with the courts to determine the “best interest of the child.” The current statute also presumes that there are adequate resources for state- recognized Native nations to carry out these functions. Because communities are limited in their ability to assert tribal jurisdiction, this statute does not equate to ICWA, but it does provide a distinctive example of Lumbee participation within the state to get things done (see Figure 12).

205 Court Improvement Project Juvenile Law Changes. House Bill 350. General Assembly of North Carolina (Raleigh, North Carolina, Session 2013).

117 NC Provisions Compared to ICWA NC ICWA ICWA Placement consideration hierarchy: Adoptive placement consideration “a preference 1) Parent; shall be given, in the absence of good cause to 2) Family member; the contrary, to a placement with: 3) “Nonrelative” kin also includes any (1) A member of the child’s extended family; member of a State-recognized tribe or a (2) Other members of the Indian child’s tribe; or member of a federally recognized tribe.” (3) Other Indian families.” (NC SL 2013-129) (25 U.S.C. 1915(a). Figure 12: NC Provisions Compared to ICWA The statute continues an ongoing conversation with the state to address the needs of Native communities in this arena. More importantly, it encourages the crafting of a more collaborative relationship with the North Carolina Department of Social Services through continuing education, webinars, and workshops, all dedicated to identifying Native children in state- recognized communities and the importance of being a part of that community.

The North Carolina Indian Child Welfare statute is just one example of how the Lumbees have actively participated in the North Carolina political landscape. As the former Court

Improvement Plan Program Director and Lumbee member declared, “it’s not a perfect answer, but it’s a start.” The ‘non-relative kin’ definition applies to state courts and state jurisdiction.

Robeson County courts have usually deferred to the Lumbee Supreme Court when it comes to internal governance matters. Nothing in this collaboration creates a way for the state courts to eventually shift jurisdiction over to the tribal court, something not necessarily prohibited, but only unexplored. There are several assumptions that must be addressed to make this shift possible, for instance, the nation’s capacity to hear the influx of cases; state judges’ willingness to transfer jurisdiction; and the proper protocol to share these matters.

There are several examples of Native nations providing child welfare services that can serve as a model for Lumbees. The Fond du Lac Foster Care Licensing and Placement Agency is an example. Fond du Lac was struggling with recruiting and licensing Native foster homes

118 outside of its jurisdiction. “By establishing a separate non-profit entity, chartered under state laws, which then contracted the Fond du Lac government’s Division of Human Services to provide all programmatic and administrative services, the Band could legitimately work toward expanding the availability of Indian foster homes in northeastern Minnesota.”206 Since the

Lumbee Tribe does not have its own Division of Human Services to contract with there appears to be a possibility to contract with local DSS to recruit and license Native families. The creation of a Department of Child Welfare Services within the Tribe’s Administration services to develop policies and procedures is also another strategy to advocate for and protect Lumbee children, as the Houlton Band of Maliseet Indians located in Maine has done. There the local courts still hear

ICWA cases, but the nation has partnered and collaborated with the state on culturally relevant material for training and educating non-Maliseet providers.207 The Lumbee can use case studies like these to further develop their collaboration efforts for child welfare issues. There are ways to adapt what other Native nations have done to protect their children just as Lumbees adapted legislation to meet child welfare concerns not addressed in ICWA. This adaptation strategy can be extended beyond child welfare issues and implemented across other areas of concerns.

The child welfare example demonstrates how state-recognized Native nations and their home state can collaborate with each other on a government-to-government basis through various arenas. One beneficial aspect of this relationship is that the state is willing to listen to the

Lumbee tribal government. That dialogue allows each party to participate in addressing needs in a culturally specific way. According to the Executive Director of the North Carolina Commission

206 "Fond du Lac Off-Reservation Indian Foster Care." Honoring Nations: 1999 Honoree. The Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. 2000. Report. 207 "Indian Child Welfare Services." Honoring Nations: 2006 Honoree. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. 2007. Report.

119 of Indian Affairs, members of a state-recognized Native nation are also tax-paying citizens in the states and they should benefit from those taxes as well. Being members or citizens of a Native nation does not negate the state’s responsibility to meet their needs. This on-going collaboration is just one way Lumbees have continued to assert their distinct identity outside the white-black racial system in North Carolina. The Lumbees have provided a unique perspective on native/state relationships.

This example does not get to the heart of why Lumbee children are being taken from their homes including the social issues that are causing Lumbee parents to lose their children. What this case study does demonstrate is that the Lumbees have been able to work within the political system of North Carolina to address an issue critical to their survival as a people and as a community. The successful resolution of this issue was a product both of state recognition and of the Lumbee ability to take advantage of that recognition. The federal government played a role in this—it encouraged North Carolina to treat Native child welfare issues appropriately—but

Lumbee success was not dependent on federal recognition.

120 CHAPTER FIVE: THE WACCAMAW INDIAN PEOPLE

The Waccamaw Indian People developed ways to maintain a distinct community in a state that did not recognize their existence as a political entity until 2005. Social institutions, such as schools and churches, were used to sustain their identity separate from the “white” and

“black” designations in the South. Although South Carolina did not establish regulations to recognize a Native nation until 2003, the Waccamaw continue to push their political agenda in the state. The Waccamaw experience is vastly different from—but still bears some similarities to—the Lumbee story. The Lumbee have worked to assert their political influence within local and state politics for over 100 years. The South Carolina-Waccamaw political relationship was established 10 years ago. Developing a political relationship where a community, such as the

Waccamaw, can influence politics takes time. Today, as one of the first state-recognized Native nations in South Carolina, the Waccamaw are grappling with how to (re)define, maintain, and assert their voice in a political relationship that has finally acknowledged they have remained.

Who are the Waccamaw?

The Waccamaw Indian People are located in the Northeast region, commonly referred to as the Pee Dee region, of South Carolina. The Waccamaw tribal government has approximately

400 members enrolled who largely reside near Dog Bluff, an area outside of Aynor, South

Carolina. The Waccamaw Indian People have inhabited the state since prior to European contact.

During Spanish expeditions in 1521, Francisco de Chicora, an indigenous interpreter for Lucas

Vasquez de Ayllón, recognized one of the regions they visited in South Carolina as “Guacaya,” translated by anthropologist John R. Swanton as Waccamaw, a historical Native community.208

They have lived around the Waccamaw River that runs from Lake Waccamaw in North Carolina

208 John Reed Swanton, The Indians of the Southeastern United States (Washington: U.S. G.P.O., 1946).

121 to Conway in Horry County, SC for hundreds of years.209 Figure 13 illustrates the location of traditional Waccamaw villages in South Carolina.

Figure 13: Waccamaw Indian People of South Carolina (Map from South, Stanley.“The Unabridged Version of Tribes of the Carolina Lowlands: Pedee-Sewee-Winyaw-Waccamaw- Cape Fear-Congaree-Wateree-Santee.”Research Manuscript Series. Book 16. (1972).) Swanton explains that in 1670 when the English settled in SC, the Waccamaw were living in separate villages along the Waccamaw and Pee Dee Rivers in close proximity to the “Winyaw” and “Pedee” people. There are two separate Waccamaw populations in the Southeast: one, the

Waccamaw Siouan people situated in North Carolina near Lake Waccamaw and the other in

South Carolina. This chapter focuses on the remnant Waccamaw community, formally known as the “Dimery Settlement,” located near Aynor in Horry County, South Carolina.

“It is a historical fact that there was a late Woodland Period Indian village site located near Jordanville containing examples of pottery from the Pee Dee period, which is generally

209 Ibid., 203.

122 thought to cover the 1200-1650 A.D. period,”210 local historian Forest Hazel explains, “So it is possible that there may have been a vague recollection in Dimery’s family of their people having once lived in that region. It is an interesting thought, but one which is unfortunately not supported by any hard evidence at this point.”211 Creating a clear connection from the historical

Waccamaw village to the people who remain today is a challenging task. Sorting through such connection is beyond the scope of this case study.

The lack of documentation is a common misfortune for many Native communities in the

South. Much of the time, oral stories and traditions are passed down through generations. “As they struggled to survive, most of these [South Carolina] Indian people lost any connection to the

212 tribes from which they descended, even forgetting the tribes’ names.” In a personal interview with 2nd Chief Cheryl Sievers, she spoke of her own experience with this uncertainty.

For me, I was raised knowing that I was Indian, knowing that we were from this area Indians. I remember my grandmother telling me that we were Sioux because I said, ‘what kind of Indian are we?’ She said, ‘you’re Sioux.’ Then my fourth grade teacher said that, ‘well your grandmother’s probably wrong and just saying that because there are no Sioux Indians in South Carolina.213

What her fourth grade teacher failed to understand was that many of Southeastern Natives are from historically Eastern-Siouan language communities. It is possible overtime the language association of eastern Siouan became synonymous with Sioux. On the other hand, some people consciously chose to no longer recognize their Native ancestry because of the discriminatory repercussions. Personal stories piece together much of what state records such as deeds and race affidavits do not tell. The people within the community know and understand their own

210 Hazel, "The Dimery Settlement: Indian Descendants in the South Carolina Low Country.” Jordanville is approximately 8 miles from the Dimery Settlement site. 211 Ibid. 212 Theda Perdue, "American Indian Survival in South Carolina," The South Carolina Historical Magazine 108, no. 3 (2007), 219. 213 Personal interview, Cheryl Sievers, June 18, 2013.

123 conception of what it means to be indigenous and that conception may or may not suffice for outsiders.

The Dimery Settlement: Historical Analysis of the Waccamaw Indian People

As with most Indigenous communities in the Southeast, documentation by external entities demonstrating continuous Native identity is difficult to gather. For the Waccamaw, little documentation exists through the eighteenth, nineteenth, early twentieth centuries. War, disease, and the slave trade wreaked havoc on Indigenous communities, especially on the east coast. It is highly probable that these events caused the Waccamaw population to decline considerably resulting in the community being invisible to outsiders. European settlers rarely knew exactly how many Native communities existed outside of their trade areas. Therefore, to provide a realistic before and after picture of the Waccamaw population is nearly impossible.

Breaking up communities through either war, disease, and/or the slave trade forced

Indigenous people to relocate and adapt to sustain. Once European settlers began to acquire land in South Carolina, many of the Waccamaw sought refuge by allying with other Native communities in the region during the “Indian wars.”214 Waccamaw are said to have migrated with the Catawba, Cheraw, Pee Dee and other indigenous peoples during and after the wars for protection. After South Carolina statehood, those who remained struggled to survive because of the changing environment and disease.215 Disease and war destroyed Native populations across the United States, but the Southeast was particularly affected. Contact precipitated a series of shocks to these indigenous communities. Historian Theda Perdue describes the self-identified

214 Yamassee War of 1715, Tuscarora War in North Carolina lasting from 1711 to 1715. 215 Diseases include small pox, measles, and other foreign viruses introduced to Native communities through European contact.

124 South Carolina Native population in 2000 as approximately 41,000.216 She uses this figure to argue that in 1670 during Charleston’s settlement the total indigenous population was probably drastically less than what remains today because of disease, land loss, and genocide.

The Native population obliteration occurred on the east coast in drastic numbers, but the

Indian slave trade crushed communities just as severely as the introduction of foreign diseases.

South Carolina, Charleston specifically, became the hub of the slave trade as Silver explains approximately 12,000 Natives were sent as slaves to the West Indies and other European colonies in 1710.217 In 1715, there was an estimate of 600 Waccamaw living in four different villages.218 Waccamaw villages were roughly 115 miles from Charleston and settlers considered the Indigenous people living in those areas as “settlement Indians,” isolated from continuous

European contact. Allan Gallay proposes that “laying low” was a strategy that many of the

Indigenous peoples employed to survive in the South.

Once the indigenous population was no longer a threat or a concern, South Carolina identified the Waccamaw Indian People (and other indigenous peoples) as “free persons of color.” The designation says little about the Waccamaw as a people and more about how the state continued a “black-white” discourse. Perdue recognizes that in the 20th century, “All

Indians avoided racial classification as ‘colored,’ yet they usually did not seek to pass for white.

In the era of segregation, they struggled to establish schools and churches to serve Indian people.”219 Due to the lack of documentation, outside of oral histories, there is relatively little known about the Waccamaw in the late 18th and early 19th centuries. John Evans, a goods trader

216 Ibid., 215. 217 Timothy Silver, A New Face on the Countryside: Indians, Colonists, and Slaves in South Atlantic Forests, 1500- 1800 (Cambridge; New York: Cambridge University Press, 1990), 74. 218 Quoted in Alan Gallay, Indian Slave Trade: The Rise of the English Empire in the American South, 1670-1717 (New Haven, CT: Yale University Press, 2002), 206. These numbers are not completely accurate because settlers had less contact with the Waccamaw other than those who traveled to trade with them. 219 Perdue, "American Indian Survival in South Carolina,” 217.

125 in the region, in 1755 described in his journal “the Cherokees and Natchez Indians killed some

Pee Dees and Waccamaw ‘in the white people’s settlements.’” Hazel references this account as one of the last mentions of the Waccamaw people.220 From 1755 to 1813, Waccamaw remained invisible to South Carolina until John Dimery purchased tracts of land that eventually became known as the Dimery Settlement.

The Dimery settlement was named after John Dimery, the owner of several tracts of land near the Dog Bluff Township in Horry County in 1813.221 According to S. Pony Hill, John appears on Robeson County tax and census records from 1780 to 1795 among “other free persons.”222 Sometime between 1795 and 1813, John Dimery and his wife migrated to the Dog

Bluff area. As explained in the previous chapter, the spin off process for Native communities, especially in the Southeast, was very fluid. Migration from one community to another occurred at varying times and often because of familial connections, which created cohesion within Native communities. John’s movement from one community to another exemplifies how Natives in the

South migrated and interacted with each other. Oral stories suggest that John allowed the Indians already living in the area to remain on the purchased tracts of land.223 By 1850, the Dimery settlement listed approximately four families, John Dimery, Willis Thompkins, Cockran

Thompkins, and Sara Cook, consisting of 27 individuals.224

220 Hazel, "The Dimery Settlement: Indian Descendants in the South Carolina Low Country.” Hazel explains the actual location of this event is unknown, but some believe it occurred near Moncks Corner, a present-day town in South Carolina. Moncks Corner is approximately 90 miles from the present-day town of Aynor. 221 Some people in the community say that the Indians living in the area as well as John Dimery put their money together to purchase the land and John merely served as a point of contact for them. The tracts of land included 300 acres. See Waccamaw Indian People of South Carolina, directed by Stan Knick and Michael Spivey (Pembroke, N.C. : Native American Resource Center, UNC Pembroke: 2012) 222 S. Pony Hill, Strangers in their Own Land: South Carolina's State Indian Tribes. (Palm Coast: Boxes & Arrows, Incorporated, 2013). , 63. Hill explains that John lived at Drowning Creek during this period. 223 Gene J. Crediford, Those Who Remain: A Photographer's Memoir of South Carolina Indians (Tuscaloosa: University of Alabama Press, 2009), 104. 224 Hazel, "The Dimery Settlement: Indian Descendants in the South Carolina Low Country"

126 Although marrying outside of one’s race was common, the miscegenation laws in South

Carolina prohibited such acts. Perdue describes marrying within your own race or with someone within your community as a way for South Carolina Natives to maintain family units. “Indians also frequently married whites and, far more rarely, free people of color, but the next generation usually married back into one of the Indian communities, which, by marrying among themselves, became interrelated.”225 Intermarriages are exhibited by the predominant surnames in the Native communities, for the Waccamaw: Hatcher, Cooper, Dimery, and Cook are prominent families that remain today. The Waccamaw Indian People considers the Dimery Settlement the epicenter of who they are as a community today.

Waccamaw Social and Political Organization

Reminiscent of the Lumbee community, the Waccamaw organized around an Indian school and a church in an effort to maintain a distinct indigenous identity. The Dimery school, officially known as the Pine Level School, is said to have existed at least since 1909.226 The school was officially designated as a white school by the state, but only children from the settlement attended it. The local school district attempted to classify the school as “colored,” but when the Dimery settlement parents learned about those intentions they began to withdraw their children from the school and requested to have the county board amend the designation.227 As a resolution, the county allowed the Dimery settlement children to attend the white Aynor schools and eventually reopened Pine Level labeled as a “white school.” The school board’s willingness to change its designation attests to the inability to place the Dimery Settlement into either the white or black classification. Common practice in South Carolina prohibited the intermixing of

225 Perdue, "American Indian Survival in South Carolina,” 219. 226 Hazel, "The Dimery Settlement: Indian Descendants in the South Carolina Low Country" 227 Ibid

127 schools unless there was a selected white teacher for a black school.228 Had the children been considered of black descent, considering South Carolina’s stance on race, there is no reasonable explanation as to why the board would attempt to designate the school as “colored” and then turn around and label it as a white school other than the inability to differentiate the settlement as either white or black.

The Dimery school provided a voice for the Waccamaw living in the Dimery settlement.

The resistance by the settlement’s leaders proved to be a catalyst for organizing in a racially charged environment. The school served as a source of political organization and influence in local politics. Even though the Waccamaw did not have the level of control over the school as the Lumbee had in North Carolina, it served as a layer of separation from the non-Native communities in the area. Unfortunately, the school officially closed in 1955 when the student enrollment dropped to nine students. After the Dimery school closed, Waccamaw were forced to attend all-white schools. Chief Hatcher recalled his personal experience as not enjoying school because the other children mocked his skin color. The Chief remembers his childhood as constantly having to fight because he was called “Croatan,” “Cro,” “brass ankles,” and other derogatory names.229 He recollects not knowing why he did not like those terms, but understood that those terms were used to degrade him. The school experiences served as a reminder for the

Waccamaw highlighting whites did not accept them nor did they fit into the black community.

The Waccamaw responded by withdrawing into a relatively isolated community where they

228 The South Carolina 1895 Constitution Article XI, Section 7 read as, “Separate Schools shall be provided for children of the white and colored races, and no child of either race shall ever be permitted to attend a school provided for children of the other race.” 229 Personal interview, Chief Harold Hatcher, July 8, 2013. The name Croatan became synonymous with “Cro” during the Jim Crow Era and was used to offend the indigenous people in Robeson County and other native populations in the South.

128 could protect themselves from outside forces and maintain their kinship and community ties through the church.

The church served as another layer of separation from the black and white communities in the area. Founded by the settlement’s leaders, the congregation was made up of prominent

Waccamaw families. Similar to Lumbee, the Bethel Missionary Baptist Church served as the community center that generated leadership. Although the first preacher was a white man, the following preachers were all Waccamaw. The church burnt in 1987; however, the cemetery connected to the church remains today and Waccamaws consider it a prominent feature within the community representing their Native ancestry. 230 Most of all, it serves as a reminder of an uneasy, not-so-distant-past, that they have overcome and survived as people. “Although many members of the communities married whites and even ‘looked’ white, they lived in Indian communities, went to Indian churches, traded at Indian stores, and drank at Indian bars.”231

Perdue argues that intermarriage and assimilation did not detribalize South Carolina natives, but only enhanced their ability to survive by creating segregated institutions. Without those institutions, just being a separate community no longer satisfied the membership.

The current leadership, including the Chief, derives from the same line of leaders who established the Dimery settlement. Chief Harold “Buster” Hatcher has been the backbone of the

Waccamaw community in creating a space within South Carolina politics. After returning home from serving in the Vietnam War, Chief Hatcher quickly realized that discriminatory racial practices had not changed since his departure.

I was still sore in the stomach [from being shot three times]. I had been in the hospital for a good while. I was recovered fairly well, but I was still sore. I couldn’t move well. Went into Mammy’s Kitchen [a diner in Myrtle Beach, SC], I sat down with my white

230 Although the Church no longer exists, the church’s cemetery remains a connector to the Waccamaw community and its historical past. 231 Perdue, "American Indian Survival in South Carolina," 224

129 girlfriend, and ordered a meal. A big fat guy, I guess he was the manager, came over to the table where we were. He said, ‘Miss.’ He said, ‘you can sit here at the table, but the nigger is going to have to sit at the counter.’ Then he looked at her and said, ‘What are you doing in here with a half nigger anyway?’ And when he did, I mustered all strength I had. I was going to kill him, but I couldn’t get to him.

His experience at Mammy’s Kitchen in conjunction with his inability to register his start-up company as a minority-owned business in the state rejuvenated his efforts to actively engage his community to create a stronger voice in South Carolina.

It was not easy to gain momentum to organize because for generations Waccamaws were taught to go unnoticed in order to survive or suffer the discriminatory repercussions that would ensue. Racial discrimination created an environment where many of the current elders were taught to deny their Native ancestry to survive in a racially divided society. Cheryl recalls her mother’s struggle as, “My mom wouldn’t talk about being Indian because she grew up with a lot of shame and she actually would get mad when I would bring it up and tell me to stop asking questions, to leave it alone.”232 In a film documenting the Waccamaw community, an elder,

Reverend Elwood Ammons describes his childhood experience as elders teaching him “to deny being Indian” because of the fights that would follow with outsiders.233 Without an early political relationship and the advantages that it entails, the Waccamaw were forced to navigate local and state race politics in a way unlike the Lumbee. The only way to formally organize that the state acknowledged was through a nonprofit charter. In 1992, the Chief and other community leaders received a nonprofit charter for the Waccamaw Indian People. Chartering a nonprofit was used as a tool to participate in federalism arenas to access resources. Figure 14 highlights the differences between traditional and contemporary Waccamaw collective organization.

232 Personal interview, Cheryl Sievers, June 18, 2013. 233 Knick and Spivey, Waccamaw Indian People of South Carolina

130 Waccamaw Social and Political Organization Traditional Contemporary Kinship Waccamaw Indian People nonprofit charter in 1992 Leaders descend from original settlement Annual powwow families Spirituality Waccamaw Constitution Three-branch government • Executive Branch includes a Chief and up to three 2nd Chiefs • Legislative Branch consists of 7 elected Tribal Council at-large representatives • Council of Elders Figure 14: Waccamaw Indian People Social and Political Organization Since South Carolina did not have a formal mechanism to extend state recognition, a series of bills from 1995 to 2002 were introduced to the General Assembly to extend state recognition to the Waccamaw. Each time the bill died in committee. In addition, during that same timeframe, bills were introduced to create a Commission of Indian Affairs, but the Native communities could not garner enough political support to move the bills out of committee. It was not until 2003 that the Native communities established a seat at the South Carolina Commission of Minority Affairs. Then in 2004, a bill was passed by the General Assembly to approve state recognition regulations administered by the Commission of Minority Affairs. Shortly after adopting the recognition regulations, the Commission extended state recognition to the

Waccamaw Indian People. Being recognized provided a formal avenue for the Waccamaw and the state to interact on a government-to-government basis.

The Waccamaw have adopted a three-branch government structure. The Executive

Branch includes a Chief and up to three 2nd Chiefs. The Waccamaw Constitution requires the

Tribal Chief to be a member with genealogical ties to the Dimery Settlement. The Chief nominates the 2nd Chiefs and the Tribal Council confirms them. The Legislative Branch consists of seven elected Tribal Council at-large representatives. The Council of Elders under the Judicial

131 Branch oversees the Chief and the Tribal Council. Seven elders and two tribal judges form the

Council of Elders. The Chief appoints and the Tribal Council confirms the members of the

Council of Elders. The current governance structure explicitly defines roles and responsibilities with how leaders are chosen as well as offers a system that resembles a checks and balances system where no one person has too much power.

Since recognition, the Waccamaw have had success with state legislation despite it being a new relationship. Prior to recognition, the older generation was forced to refrain from displaying their “Indianness.” They also rejected being classified in either the black or the white category. Their recognition did not come easy because of the fear of advertising their

“Indianness” to outsiders and the repercussions that would accompany that proclamation. The community credits Chief Hatcher as the person who led the community to resist the threat of discrimination and embrace their Waccamaw history with pride. For many of the older generation, state recognition created a sense of freedom they had not experienced before.

Leading up to recognition and following it, there has been Waccamaw resurgence among the elders and the younger generation to embrace who they are as a people and work toward addressing the needs of the community that has been invisible to outsiders for so long.

The current leadership has created a rebellion of sorts for the community to welcome its heritage and to finally be proud of being Waccamaw. This revival includes efforts to incorporate

Eastern Woodland traditions involving a fire ceremony where the fire keeper maintains a fire burning throughout the weekend at the annual powwow or “pauwau” (Waccamaw preferential spelling). The pauwau has become a staple in the community serving as a homecoming for

Waccamaw people and creating an opportunity for others to learn about their traditions and culture. An event known as School Days take place a few days leading up to the pauwau and it

132 includes busing local school children on to tribal grounds for storytelling, basket making, and other activities significant to the Waccamaw people. Educating the outside community has become a main emphasis among Waccamaw leaders. Reflecting on his own childhood, Chief

Hatcher wants to make sure that the children, both Waccamaw and others, receive a complete education by incorporating the history of the local Native community, something previously left out of the school textbooks. The hope is that these efforts will continue to mend race relations and create an enhanced sense of pride for the Waccamaw youth. For the Waccamaw, state recognition acknowledged the historical ties to the area and more importantly, it generated a sense of success among the community as they were finally documented as remaining.

Contemporary Political Relationships in South Carolina

My research on the political relationship between the Waccamaw and South Carolina led me to the state capitol. As I approached the Capitol Building in Columbia and personally witnessed the Confederate flag flying on state grounds, I quickly realized that the imaginary line separating North from South Carolina was not the only thing dividing the two. If North Carolina is considered a Southern progressive state, then South Carolina politics are more traditionally conservative. “In no state had the politics of color prevailed longer than in South Carolina.”234 It is widely known, historically, for seceding from the Union over federal tariffs several years prior to the 1830 Indian Removal Act, and nullifying federal law, a decision that became the catalyst for the Civil War dividing the country on the issue of race and slavery in the 19th Century. The common story of South Carolina reveals cotton was king delivering an economic boost off the backs of slaves. What is not widely known is that its first inhabitants played a role in the state’s

234 Bass, Jack and W.Scott Poole, The Palmetto State: The Making of Modern South Carolina (Columbia: University of South Carolina Press, 2009). , xiv.

133 narrative and continue to exist today in a state that is marred with such a checkered past of white- black relations.

During my visit with Chief Hatcher, he showed me around their community. We stopped by the tribal grounds where they host their annual “pauwau”, the tribal office where they govern internal affairs, and the Dimery cemetery where previous generations of the Waccamaw are buried. I noticed a chain-linked fence wrapped around the cemetery and a few burial plots outside that fence. Initially, I found it quite odd, but waited for an opportune time to bring it up.

As we walked around the cemetery he pointed out his family plots and the distinctive objects left on the tombstones by community members. The objects represent, according to Hazel, “One custom formerly practiced by members of the Settlement was that of decorating graves with seashells such as whelk and clamshell. This is a practice found among many coastal Indian tribes, and probably represented one of a very few cultural survivals.”235 It appears that the cemetery reinforces the Waccamaw presence to both outsiders and insiders, but some people do not widely accept their existence.

As the Chief and I proceeded to exit, he acknowledged the tombstones located on the outside of the fence, explaining that the cemetery has always been considered as a part of the

Dimery settlement. However, this designation did not go unchallenged. The local newspaper,

The Sun News, ran a story describing vandalism that occurred and referenced it as an American

Indian cemetery.236 According to the Chief, a local woman whom he described as “white” and a descendent of one of the people buried there, wrote a letter to the editor demanding they retract that designation, insisting that the cemetery was not American Indian, but a white cemetery.

When the newspaper stood by its designation and refused to retract the article, she threatened to

235 Hazel, "The Dimery Settlement: Indian Descendants in the South Carolina Low Country" 236 Lauren Leach, "Graves Disturbed in Indian Cemetery," The Sun News, sec. Front, September 17, 1998.

134 sue the Waccamaws for the land. Chief Hatcher revealed that the “white lady’s” family has been buried on the outside of the fence ever since. The tombstones outside the fence epitomize the racial boundaries that continue to exist and how tense race relations continue to be in the South.

After hearing that story and visiting the community, I realized that the cemetery account is just one significant example of Waccamaw efforts to cement their place in the Aynor and greater

South Carolina community.

Recognition created an avenue for the Waccamaw to actively engage South Carolina as a strategy to address needs within the community. Chief Hatcher described in the local newspaper the value of state recognition as, “It's not recognition of a tribe that is important, it's that the state recognizes the state's Indian population. We need to make them realize that there are Indians in this state.''237 After pursing recognition for over a decade, Chief Hatcher understands the implication of this political relationship as, “‘State recognition should be a tool, and not an end result,’”238 Hatcher believes his duty, as a leader, is to make the state legislators aware of the issues in the community. The Chief had several items on his agenda once Waccamaw established a political relationship with the state. Among them was the ability for a spiritual leader or a Chief to perform wedding ceremonies. Although most Waccamaws are Christian and attend church, not everyone holds those beliefs. It was important for the Chief to have that bill pass the General

Assembly before he was married himself. Acknowledging the ability for state-recognized Chiefs or spiritual leaders to sanctify a marriage is just another way for the state to recognize the indigenous existence in South Carolina. That recognition includes the acknowledgement of authority, for this instance, it is officiating marriage ceremonies.

237 Wilson, Zane and Joaquin Siopack, "Recognition," The Sun News, sec. Front, February 13, 2005. 238 Jim Largo, "Former Chief Continues Work on Issues in South Carolina," Indian Country Today Media Network. November 22, 2006.

135 It was important for the Waccamaw to ensure that state recognition was more than a formal acknowledgement, but also a way to actively address the community’s needs by participating in federalism arenas. Without the state recognition designation, Waccamaw artists were unable to sell their arts and crafts as authentic Native American made. Creating a sustainable economy for the community is a necessity. Becoming state-recognized authenticated

Waccamaw artists under the Indian Arts and Craft Act (IACA) because the legislation defines an

“Indian” as a member of a state- or federally recognized Native nation. Using this administrative arena of federal designation, the Chief pushed South Carolina to expand on these efforts. Under

South Carolina state law, it is illegal to sell any wild turkey parts. Chief Hatcher was able to influence state politics to provide an exception for Native artists in the Protection of Game

Chapter in the Fish, Game, and Watercraft Code. South Carolina permits state recognized artists to use and sell wild turkey feathers in their arts and crafts. I would argue the leverage garnered through the IACA definition legitimizes state-recognized artists and influenced the state of South

Carolina—along with Chief Hatcher’s efforts—to designate an exception for these same peoples in state law.

Currently, Chief Hatcher has been petitioning for the return of human remains that were either dug up or stored in South Carolina museums for a proper reburial. The Chief states in reference to how the state can address Waccamaw issues, “I think the only thing I could do because I’m not smart enough to know all the right answers is to make my legislators aware of it and they don’t want to be aware of it.”239 Getting state leaders to acknowledge the uniqueness of

South Carolina Indigenous peoples has proven to be difficult. Unlike Lumbee, the Waccamaw have approximately 400 members a substantially smaller population size. Garnering enough political influence with a smaller voting bloc is not an easy achievement. South Carolina has

239 Personal interview, Chief Harold Hatcher, July 8, 2013.

136 appeared to act on specific cultural matters for state-recognized communities, but the Chief would contend is not a top priority in state politics. I would argue and I think Waccamaws would agree that Chief Hatcher has been the backbone of the Waccamaw political involvement with the state. Through his leadership and political influence, much of the relationship that exists today has generated successful results. He created and developed the current Waccamaw Constitution; he has prepared their federal recognition petition; and has continued to lobby the state concerning Waccamaw interest. The Waccamaw with the Chief’s leadership have worked to include Native communities into the South Carolina narrative.

The Waccamaw strategy to interact with the state reflects what Albert Hirschman would consider as “voice.” Hirschman argues that members of society or consumers can exit or voice when they are no longer satisfied with the quality of service provided. Voice, according to

Hirschman, “is for the customer or member to make an attempt at changing the practices, policies, and outputs of the firm from which one buys or of the organization to which one belongs.”240 Economics have long studied the “exit” approach of consumers/members who are dissatisfied with service provided. By exiting the relationship, they have the option to go over to the competition. In this case, the Waccamaws’ exit option or strategy may be petitioning for federal recognition or the United Nations; however, these options are not guaranteed. Hirschman posits that members/ consumers have an alternative option to exiting and that is by using their voice or as he states, “kick up a fuss,” thereby improving the quality of service. The political relationship with the state is new and for so long the Waccamaws did not have a voice in state politics to address issues within their community. The Chief has found moderate victories by participating in a relatively few arenas including the ability to acquire traditional land as

240 Albert O. Hirschman, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States (Cambridge, Mass: Harvard University Press, 1970), 30.

137 discussed in Chapter Three, but the “voice” strategy should extend beyond the state legislature.

The challenge with serving as political actors beyond the state and local political spaces is there has to be enough political leverage to acquire what one needs. The Waccamaw tribal government is just beginning to participate in such ways that, I believe, will take time to create enough political influence beyond the state.

Waccamaw leadership has successfully introduced several pieces of legislation that have passed through South Carolina General Assembly recognizing the distinction of Native communities. They are at a slight disadvantage because of the small population size, but there appears to be a ripe opportunity to develop an engaging relationship with the state by asserting their voice into the political landscape. By asserting their voice into the South Carolina political landscape through petitioning state legislators to introduce bills such as creating a recognition process; recognizing spiritual leaders to officiate marriages; permitting the use of wild turkey feathers for state-recognized artists; and returning human remains, Waccamaws are attempting to change the awareness of state officials concerning Native communities. Moreover, they are participating in arenas available through federalism to get things done.

138 CHAPTER SIX: WHAT CAN WE LEARN FROM THE LUMBEE AND WACCAMAW CASE STUDIES

State recognition provides an interesting perspective of how Native nations are developing strategies by identifying federalism arenas to participate in to address the needs within their communities. This research is not representative of all state-recognized communities, but it does provide two distinct experiences: one, a historical relationship; and the second, a new evolving relationship. Both examples I provide demonstrate how each community has engaged the state to alter pre-existing legislation or has influenced state legislators to draft new legislation that creates exceptions for Indigenous people in the state. This level of interaction demonstrates successful and effective political influence on behalf of each community. They also demonstrate how state-recognized, or non-recognized, Native nations have been able to use the federalism landscape for resources or leverage.

Instead of viewing state recognition as illegitimate, we should identify the strategies these communities employ to get things done. Understanding the recognition classification as a tool provides fodder for how other communities, federally recognized or non-recognized, may engage other governments. Typically, federally recognized Native nations use a common set of political strategies distinctly available under the tribal-national government-to-government exclusive relationship assumption. These strategies tend to focus on Congressional legislation, Executive decisions, and/or lawsuits heard by the Supreme Court. However, the Lumbee and Waccamaw cases illustrate that there are specific and diverse strategies that work depending on the arenas, and specifically, local variables. Serving as political actors helped influence legislation (local, state, or federal) in political arenas, acting as a nonprofit benefited the Lumbee and Waccamaw in obtaining resources in either financial or administrative arenas, e.g. traditional land acquisition, and status classification, thus demonstrating that federalism arenas provide the

139 flexibility to move and talk across various governments without the exclusive tribal-national government-to-government relationship. Moreover, having a significant relationship with one or more of the governments represented in a federalist system provides leverage to operate. There are lessons for other state-recognized, federally recognized, and non-recognized communities to learn from in the Lumbee and Waccamaw experience.

External Variables

I have argued that federalism arenas allow state-recognized Native nations to engage various governments at different levels and periods. These arenas then provide opportunities for a diverse set of strategies to be employed. Outside of these arenas, there are certain conditions or variables that impact the strategies examined. When examining the Lumbee/North Carolina and

Waccamaw/South Carolina relationship, there are several variables that should be considered: length of time for each relationship, population, and the state’s race relations (See Figure 15). It is quite possible that the state’s race relation is a variable dependent on both time and population, but the people I interviewed from the South Carolina Communities distinctively identified the difference; therefore, I want to ensure that perspective is articulated within this analysis.

Populaon

Time Relaons

Arena Strategies

Figure 15: External Variables

140 Each of these three variables has played a significant role in the nation’s ability to develop strategies.

Time The length of time each relationship has existed is an important variable that should not be overlooked when examining these strategies. While the Waccamaw have only recently established a political relationship with South Carolina in 2005, the Lumbee have engaged the state of North Carolina, politically, since 1885. The longer the relationship, one would presume the more familiar each entity would be with one another; therefore, the more time to negotiate a political space. I documented this assumption in Chapter Four’s “Historical Analysis of Lumbee

Involvement in North Carolina Politics” section. The relationship began with the state identifying the Lumbee as a distinct Indigenous community in. Eventually, Lumbees took over local town offices and that strategy flowed into county offices, then to the state General

Assembly. This type of cross representation did not happen over night, but took place over a century of pursuing a Lumbee political agenda.

Population North Carolina is considered to have the largest Indigenous population east of the

Mississippi. In 2000, the North Carolina Commission of Indian Affairs reported that the state had approximately 70,091 citizens identified as members of state-recognized Native nations. There were approximately 9.5 million people living in the state with 122,110 self-identifying as

American Indian alone in the 2010 U.S. Census and 184,082 as American Indian in combination with another race.241 These numbers may include members of federally, state, and non- recognized Native nations residing in the state. The data for specific recognition categories is sparse considering it is not a U.S. Census question. Out of the 100 counties in North Carolina,

241 “North Carolina.” 2010 Demographic Profile Data. American Fact Finder. U.S. Census, 2010. (http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=bkmk, accessed November 19, 2015, 2015).

141 Robeson County maintains the largest Native (Lumbee) population in the state. In 2010, the

Indigenous population in Robeson County represented 38% of its citizens.242 McCulloch and

Wilkins argue one reason the national government has not extended federal recognition to

Lumbees is their population.243 “The sheer size of the Lumbee Tribe, and the implications of that size for the federal budget, has been a critical factor in the denial of their petition.”244 I am arguing the Lumbee population is one reason they have been so successful within various arenas.

The Waccamaw, on the other hand, have roughly 400 members. In Horry County, 1, 279 people self-identified “American Indian” in the 2010 Census.245 The total South Carolina population, according to the 2010 U.S. Census, was approximately 4.6 million with 19,524 self- identifying as American Indian alone, and 79,935 self-identifying American Indian in combination with another race.246 Population becomes a challenge at the state level because the community is small enough that the state could possibly feel less pressure to respond to

Waccamaw issues. However, the total Indigenous population represented in the state could generate political pressure if actions are collectively organized in their strategic approach.

Relations As I mentioned previously, the race relation’s variable is more suitably dependent on time and population; however, it is important to examine the differences between both states. In

Chapter Four, I provided an historical analysis illustrating North Carolina as viewing Indigenous

242 “Robeson County, North Carolina.” 2010 Demographic Profile Data. American Fact Finder. U.S. Census, 2010. (http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=DEC_10_SF1_SF1DP1&prodTyp e=table, accessed November 19, 2015) 243 McCulloch and Wilkins, "'Constructing' Nations within States: The Quest for Federal Recognition by the Catawba and Lumbee Tribes," 361-388 See also Mark Edwin Miller, Claiming Tribal Identity: The Five Tribes and the Politics of Federal Acknowledgment (Norman: University of Oklahoma Press, 2013). 244 McCulloch and Wilkins, "'Constructing' Nations within States: The Quest for Federal Recognition by the Catawba and Lumbee Tribes," 384. 245 Horry County, United States Census Data. 2010. (http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=bkmk, accessed March 27, 2015) 246 “South Carolina.” 2010 Demographic Profile Data. American Fact Finder. U.S. Census, 2010. (http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=bkmk, accessed November 19, 2015).

142 peoples, politically, in a more progressive manner than other states in the South, including South

Carolina. Except for the period during the Civil War, North Carolina’s Indigenous people were allowed to vote and it was later supported by the state’s amended constitution. In 1866, the North

Carolina passed an Act that authorized Cherokees to remain in the state and extended state citizenship after the majority of the nation removed to present-day Oklahoma. Cherokees who did not participate in the mass exodus to Indian Territory remained in the western region of

North Carolina. They are now politically organized as the Eastern Band of Cherokee Indians.

Congress attempted to persuade North Carolina to permit the Cherokees to stay on several different occasions. Finally, a state act passed in 1866 “recognized” the Cherokees who remained.

One would view this legislation as establishing a precedent for “recognizing” Indigenous communities in North Carolina. Twenty years later, the state recognized the Lumbees as a

“distinct Indian community” by the state. North Carolina’s early recognition of Indigenous peoples living within the state counters the white-black binary commonly told within the South.

Having that type of recognition that other communities exist outside the black-white binary established a way for outsiders to take notice of the potential influence within the state. As I explained in Chapter Four, North Carolina was not bound by any responsibilities, especially land claims, which created a scenario with little strings attached to such relationship. In other words, the state saw no harm in recognizing Indigenous peoples because it was at low cost.

South Carolina did not have the same race recognition sentiment. Using the separate schools as an example, South Carolina opened schools for children who were neither black nor white such as the Waccamaw, but the school was labeled as a white school.

Cheryl Sievers, 2nd Chief Waccamaw Indian People of South Carolina:

143 How do you overcome obstacles like that? Here is what I know of the history is this: North Carolina has even though there has been more racism in the South there is something different in North Carolina because if you look why is it back in the day that North Carolina would even call and recognize someone as an Indian. Whereas that same person could come to South Carolina, we didn’t even exist as an Indian. There was a denial.

One possible reason for resisting the inclusion of Native identity is South Carolina’s fear of land claim suits. The only federally recognized Native nation in the state, Catawba, originally negotiated a treaty in 1840 with South Carolina ceding their reservation land. South Carolina’s intention was to remove the Catawba from the state and relocate them to North Carolina.

However, the land purchase in North Carolina never materialized and South Carolina eventually assigned 630 acres of the original 144,000 to the Catawba who returned. There is a belief that

South Carolina purposely refused to recognize Indigenous status because of potential land claims.

Chief Harold Hatcher, Waccamaw Indian People of South Carolina: All the government, federal and state, documents did not have Indian on them. You had to be an other or a white or a black. It was very hard to find Indian on a birth certificate or any legal documents. If you’re tracking your genealogy and you find a community of white people with one free person of color living there, something ain’t right. If that person had been black, in those days, he would have to been called black. If there was any indication that he was black, he would’ve been called black. They didn’t call him white and they didn’t call him black, the BIA would accept that now as evidence that it was an Indian person. Although you couldn’t call them Indian either. They [South Carolina] wouldn’t put that on there either. The reason they [South Carolina] didn’t want that to happen they were trying to make sure you don’t ever have any evidence for lawsuits for land.

Land claims continue to be a concern for South Carolina as illustrated in the recognition provisions that restrict any claims for communities recognized by the state.247 “Nothing in this act recognizes, creates, extends, or forms the basis of any right or claim of interest in land or real

247 J. Anthony Paredes, Indians of the Southeastern United States in the Late 20th Century (Tuscaloosa: University of Alabama Press, 1992), 90. The authors argue that South Carolina legislators were afraid of recognition because of the possibility of land claim suits. “The legislature is afraid that recognition will make it easier for these groups to claim land as well.”

144 estate in this State for any Native American Indian entity recognized by the State.”248 North

Carolina, on the other hand, has a provision for state-recognized Native nations to place land into trust with the state. “To hold land in trust for the benefit of State-recognized Indian tribes. This subdivision shall not apply to federally recognized Indian tribes.”249 Although both North and

South Carolina are in the same region of the South and merely separated by an invisible line, each state approaches relations with Native communities differently, which can be expected given their sovereign status recognized in the U.S. Constitution.

Maintaining political and social organization in an era of United States’ history where

Indigenous peoples were marginalized and state sanctioned racially discriminatory practices were endorsed to minimalize any non-white population, meant in some instances adopting those same practices used to dehumanize others. To combat segregated policies that intended to combine all non-whites into an inferior status both the Lumbee and Waccamaw communities’ organized social institutions, such as churches and schools, to maintain a separate identity outside the black-white binary of the South. Obviously, one community is not better than the other. One just happens to have a longer relationship and a larger population than the other does.

The commonalities and differences have shaped each community and its strategies used to be effective. The political relationship did not create the Lumbee or Waccamaw community, but it did provide a way for outsiders to acknowledge each community’s indigeneity and shape a political space to assert a voice.

Since my research focuses on state recognition and tribal-state relationships, I included a couple of questions throughout my interviews concerning federal recognition to have a base for

248 South Carolina Code of Regulations. “139-104 Limitations.” Chapter 139-Commission for Minority Affairs, Article I, Section 105. Criteria for State Recognition, 2004 (amended 2006). 249 North Carolina General Statute. “143B-405 North Carolina State Commission of Indian Affairs– Purposes for Creation.” General Statute 143B. North Carolina State Commission of Indian Affairs, 1977 (amended 2006).

145 comparison. Much of the time participants introduced federal recognition as a strategy to improve the communities’ social issues before I initiated the discussion. Interview participants often expressed federal recognition as a tool for resources that they do not have access to or not enough access to in their current recognition status. Federal recognition continues to be the ultimate objective for these communities, but at the same time, the interviewees expressed the strategy to build effective relationships with the state was important regardless of federal recognition.

Lumbee Tribal Official: We have a good relationship, a very good relationship with the state. The state statute gives us from the Indian Commission standpoint the right to have the advocacy, movement among all Indians across the state. You have to have a good relationship with the state or the state can make it hard for you. But, we’ve been fortunate enough to work with no matter if its Democrat or Republican, we’ve always been able to work with that relationship very well, especially with the Governor whom ever that person might be.

The tribal official recognizes that there is a caveat to working with the state and the alternative could be worse. More importantly, the official recognizes the kind of leverage a community can gain by maintaining a good relationship. Tribal-state relationships in North Carolina or South

Carolina have not always worked well. The discriminatory practices committed by each state created an everlasting impression of how bad it could be and shaped the strategic approach for each relationship. Engaging state legislators is a common strategy that has proven successful for each community. Strategies to counteract the blatant discrimination include, for Lumbees, voting their own leaders into local and state offices; and for Waccamaw, in a more contemporary fashion, pursuing state legislators to impact change.

Lumbee Strategies: What Works

146 The Lumbee case teaches us that there are diverse strategies used to get things done in federalism arenas. When examining these strategies, we have to bear in mind the three previously described variables: time, Lumbees were recognized in 1885; population, there are approximately 55,000 enrolled Lumbees; and relations, North Carolina is considered a

“progressive” state in the South when it comes to race relations. Understanding these external variables, I have identified five strategies that emerge from the Lumbee case: voting; serving as political actors; engaging all levels of government; political “friends”; and pushing a political agenda. Within each of these various strategies, there are several “keys to success” that have worked; challenges to exercising these strategies; and unexplored opportunities (see Figure 16).

Strategies Keys to Challenges Unexplored Success Opportunities Lumbee Voting Reciprocal Heavy reliance on Standing Committee Relationship external relationships on Indigenous Affairs Serving as Voting Risk of acting Native State Cabinet Political Education independently and not as Advisory board Actors a collective Self-rule vs. Special Interest Engaging All Leadership Self-rule vs. Special Intergovernmental Levels of Voting Interest agreements Government Adopting a MOAs constitution NC Bar Association Indian Law Political Voting Leadership StandingCommittee Committee or “Friends” onDivision Indigenous Affairs Youth Council Advisory board Pushing a Voting Focus on external ICWA Jurisdiction Political Reciprocal legislation and not Advisory board Agenda Relationship internal Leadership Broad application

147 Figure 16: Lesson Learned: Lumbee

Voting For the Lumbee, the North Carolina General Assembly through legislation supported a separate school system that served as a mechanism for recognition of the community. Lumbees learned early on in this relationship that their political participation could initiate change.

Community members often view the relationship with the state of North Carolina as mutually beneficial. One participant tells the story as state politicians having something to gain by recognizing Lumbees.

Lumbee Tribal Government Employee: So in 1885, when we were establishing our own school system and politicians were looking at us and saying, ‘hmm, them people vote. We’ve got a bloc there to vote.’

The 1885 Act acknowledged Lumbees as a separate community and Democrats inherited a voting bloc. Thus, began an organic reciprocal relationship that has led to, as I explained in

Chapter Four, Lumbees actively supporting and voting for Democratic candidates since the passage of the 1885 Act. This support included the state of North Carolina providing exceptions for Lumbees in state legislation, such as the separate school system and most recently, although it addresses all Indigenous state-recognized communities in the state, Lumbees pushed the agenda, the North Carolina Indian Child Welfare legislation.

Having over 55,000 members, with approximately 40,000 concentrated in the Robeson

County area and an estimated 30,000 eligible to vote provides a large voting bloc not only in the county, but the state political landscape and extends to the national level. Karen Blu states,

“Among the Southeastern nonreservation, non-BIA affiliated Indians, the Lumbee have always been in the forefront, leading the struggle for legal recognition and improved educational

148 opportunities.”250 Most importantly, Lumbees know and understand what a difference a population that large can make within the state.

Lumbee Tribal Official: State, we don’t have the impact with the state like we do with the County, but we do have an impact with the state now as well. Right now, you are looking at just our moving here with the Tribe, there’s almost right at 60,000 people that’s enrolled here with this Tribe. I am sure that we have the influence of moving a bloc of votes in relation to whomever is running and if we can organize that bloc of votes it makes a difference to who’s running.

This type of awareness puts pressure on any politician running in North Carolina. For the past ten years, North Carolina U.S. Senator candidates have campaigned for Lumbee votes by promising to submit a bill for federal recognition. Moreover, each time a candidate wins, a bill is submitted to extend full federal recognition, thus continuing the reciprocal relationship.251

2nd Lumbee Community Member: You asked the question about political [influence] locally, we are strong. Statewide we’re strong. We could always increase our numbers, but this last election we didn’t participate. But you go back to when Glenn Maynor [Lumbee] was Sheriff and running for Sheriff, our people participated, I mean, big time. It was said across the state that Lumbee was the seventh largest bloc vote in the state. Politicians if you were running you came to Pembroke because we pretty much voted pretty monolithic. National, we have input because we are politically astute. We may not act like it all the time, but we can rally people to the polls to vote and it’s been shown for Democrats and Republicans.

Recently, a shift has occurred in Lumbee voting behavior with a significant portion of the population supporting the Republican Party and affirming the political influence in the state.

Lumbees are demonstrating by their votes that if one party does not meet their needs then they can influence another.

1st Lumbee Community Member: Democrats have developed programs that kind of give back to the Native communities and that’s why they [Lumbees] frequently associate themselves as Democrat. But, there’s been a movement in our community recently for supporting Republican candidates because they see the value of economic development through the Republican Party and as

250 Blu, Karen. The Lumbee Problem: The Making of an American Indian People (Cambridge; New York: Cambridge University Press, 1980), 4. 251 Since 2003, a bill to extend full federal recognition to the U.S. House of Representatives (H.R. 1803, 113th Congress, 2014; H.R. 184, 114th Congress, 2015)

149 a result, we are seeing a shift in power. We’re seeing Native American leaders now being appointed to high positions within state government. I think you are seeing the strengthening of that Native/state relationship right now and it’s really starting to show.

The 2012 gubernatorial election featured the best example of Lumbee influence. The then candidate, Pat McCrory, featured a highly respected Lumbee elder in a commercial ad supporting his candidacy. Although there is no direct correlation between the ad and Lumbees voting for Governor Pat McCrory, the Lumbee leader featured in the commercial has since been appointed the Chair of the North Carolina Commission of Indian Affairs, thus continuing the reciprocal relationship.252 The shift in party allegiance demonstrates the political astuteness the

Lumbee community member described in the previous passage.

Serving as Political Actors

As explained in Chapter Four, the Lumbee have strategically sought political positions within the state to ensure their community needs were addressed. The degree of influence that has been accumulated over the years has not gone unnoticed within the Lumbee and non-Lumbee communities.

North Carolina Commission of Indian Affairs Executive Director: Then back to North Carolina, you know we have had consistently now going on twenty years or more an American Indian [Lumbee] in the General Assembly. So that puts a person at the law-making level, General Assembly level, who serves to provide us a voice. […] We have a Lumbee and a [Eastern Band] Cherokee. I would say our influence is growing at the state level. Another way that we have gained influence at the state level is the Indian Housing Authority, well that’s legislation, that’s law to create an entity, which put us in a position where we can tap into those Indian housing resources. […] The other way we have done that is through the State Advisory Council on Indian Education. We have a committee or a council that is statutory. The Commission meets quarterly and at certain times of the year, we have statutory responsibilities. One responsibility is the appointments for the State Advisory Council on Indian Education. We hang our hat on statutes that can put people in place to speak for us. Those are our Indian educators at the state level. Now that council comes under the umbrella of the North Carolina Department

252 A Lumbee holding that office is not new. A Lumbee has chaired the Commission for approximately 15 years. There is nothing to suggest that the relationship between the Lumbee leader and Governor McCrory was a quid pro pro either, rather the Governor respects the leader enough to feature her in his campaign and then appoint her to that position.

150 of Public Instruction, which answers to the State Board of Education. […] We rely on the State Advisory Council to advise the state Board of Education on matters. The State Advisory Council also produces an annual Indian education report, which shows the dropout rate and the level of attainment for our students in our state. They are right there with the Department of Public Instruction under the state Board of Education. That is pretty strong. You have a direct connection with the State Board of Education. So we have taken that to another level now, we’ve for this cycle, we have Olivia Oxendine [Lumbee] appointed to state Board of Education. So not only do we have the advisory group advising, we have an official seat that can help us to keep on track. […] We have a lot of people speaking up about issues, speaking up for our students, and that’s the way we gain influence and get things done.

That same political influence continues as the North Carolina Commission of Indian Affairs

Executive Director explains the various Lumbees holding official state positions. The Lumbee political participation evolved over time, mainly because of discriminatory practices. Despite being the majority population in the Town of Pembroke, Lumbee did not control the town council until 1947 when the Governor no longer appointed its members. A tribal government employee explains that the political participation was a product of Lumbees being active in armed services and experiencing a world outside of Pembroke, North Carolina.

Lumbee Tribal Government Employee: And the other thing about World War II that was interesting for Lumbee, Pembroke was the only municipality in the United States that was not allowed to vote for their Town Council and their Mayor. It [Town Council] was picked by the Governor because it [the town] was dominantly Indian and they did not want us to vote because they knew we would put an Indian in there [office]. But, when the people came back from World War II, they said, ‘no.’ They had been exposed and ‘I fought for my country. I’ve been exposed to these different things and I will demand that we have the right.’ So it was after World War II that was the first time that we ever…we only had one Indian appointed prior to being able to vote, but that was the first time that we elected our first Indian mayor. Since then, we’ve never had a non-Indian mayor and we’ve never had but one non-Indian on the town council.

Lumbee Tribal Government Counsel: My mom was very influential in the civil rights movement that actually broke double voting and you know all about double voting. As a result of that, I think that incident, the Governor and the State and local politicians have really been very cognizant and cautious about who gets into what seat and it’s highly politicized. I don’t know of any other county who has the same political dynamic that we do here because there are three substantial races in Robeson County and those races have to co-exist. To do that, each are very cognizant of what the other will do because they realize if one gets more powerful

151 than the other two, those other two are going to come together and take you out of power. We have to maintain an equilateral triangle, if you will, because if not you could find yourself outside the triangle looking in. Great example of that is the Superior Court seat. Back, I can’t remember whether it was Governor Hunt or Governor Martin, but when Judge Brooks, Judge Dexter Brooks, went into the Superior Court that seat was actually created with a gentleman’s agreement that it would always be for an American Indian. And if you look at it since Judge Brooks there has always been an American Indian in it. Gary Locklear succeeded Judge Brooks and Judge Bell succeeded Gary Locklear. There’s always been a gentleman’s agreement among the Bar and among the Governor that this will always be an American Indian seat. But, then if you look at the County Commissioners, the County Commissioners it’s by populous. If you look on there, I think there’s four American Indians on there now and I think there’s, community politics, since the census the population has shifted to a higher American Indian. There’s actually a discussion in County, ‘Well, should the Lumbees have another seat on the County Commissioners because they’re a higher population.’

Gaining control over local politics created an opportunity for Lumbees to exert political influence in the state. Fighting for such recognition demonstrated to outsiders as well as community members the type of things they could accomplish by participating in state politics and placing Lumbee people into influential jobs throughout the state.

North Carolina Commission of Indian Affairs Executive Director: Well, we know the community. We know the issues, we know the problems, we know the needs, and as far as a public policy standpoint, if you have that information out on the table you are already way ahead of the game in terms of resolving the problem or the issue. To leave us out, certainly, you’re not going to know. If you left out American Indian teachers, as far as Indian education, then you are not going to know the issues related to any of the students in the school. I think we’ve gone a long way in North Carolina in terms of resolving that, we have in Robeson County the largest Indian Ed program. You have Indians on the county board of education. The superintendent is American Indian. You’ve got Olivia Oxendine in the State Board of Education. You’ve got SACIE, State Advisory Council on Indian Ed. That’s the model that I’d like to see in each state agency.

As illustrated above, Lumbees have been very successful at strategically placing Lumbee leadership into state offices. In the 1970s, that strategy flowed to the national government level with Dr. Helen Maynor Scheirbeck who influenced federal policy, such as Indian Education and tribally controlled community colleges; W.J. Strickland who served as the Executive Director for

152 the Coalition of Eastern Native Americans (CENA) an organization for non-federally recognized

Native nations; and Adolph Dial who assisted in crafting federal recognition criteria.

In addition to voting members into key political positions, through educational opportunities Lumbees have been able to qualify for mid- and top-level positions. Once they obtain those positions, they push an agenda that influences change for the Lumbee community.

The most recent example of holding key positions is with the former Court Improvement Plan

Program Director. Her involvement with the program created a way for the General Assembly to adopt legislation that addresses Indigenous children in the state.

Engaging All Levels of Government

Throughout Chapter Four, I have identified ways in which the Lumbee have engaged all levels of government. In 1885 when the school system was established, it was a reaction to the local school system discriminatory practices (supported by the state). Three years later Lumbee leadership petitioned the national government for financial assistance with their schools. The same strategy occurred in the 1930s with the Farm Security Association example where leaders petitioned the national government to regain land lost (an initiative the national government was supporting for federally recognized Native nations under the IRA).

North Carolina Commission of Indian Affairs Executive Director: Then on the national level, the strategy has been I will attend the National Congress of American Indians annual conference annually. Then there are committees within NCAI (National Congress of American Indian) and we’ve been able to get some of our people into leadership roles within the National Congress of American Indians. […] On the national level, you have NIEA [National Indian Education Association]. A lot of our leaders in North Carolina go to the conference on the national level. We have 17 Indian Ed programs in North Carolina and we have the largest Indian Ed program in North Carolina, which is in Robeson County. That connects the dots in a lot of directions as far as Indian education. That spreads out that influence across the gander. We’ve got a lot of people speaking up about issues, speaking up for our students and that’s the way we gain influence and get things done.

153 With the ICWA example, the tribal government worked with the local DSS to develop an intake form to track Indigenous children. At the same time, Lumbee leaders worked with the General

Assembly House Representative to submit a bill. The strategy to engage all levels of government reflects Donald Kettl’s description of federalism. If Lumbees were not successful at one level

(local, state, or national), then they sought retribution at another. One could argue that Lumbees have been unsuccessful in obtaining federal recognition; thus, their fight at the state and local levels are ways in which federalism should work.

Political “Friends”

Even though Lumbees have served in political positions, they maintain a significant level of influence with non-Native political actors, or political friends. In 1885, House Representative

Hamilton McMillan who submitted a petition to establish the separate school system was considered a political friend. Recently, some community members view Governor Pat McCrory a friend.

2nd Former Lumbee Tribal Council Member: We’ve got good political influence on the state level. Right now we’ve got several Republicans that I feel that they could go to the Governor at anytime they please and ask for certain things and they would be able to get it. So, politically, we are still in a good situation even though it is a Republican controlled Governor.

Robeson County Manager: I think the tribal administrators and the local legislators are in touch. We have Mr. Graham who is a [Lumbee] member of the legislature and I’m sure Senator [Michael] Walters works with the Tribe on issues. I think they have a good working relationship with the local legislators. […] We have three [Lumbees] on an eight-member board so there’s divided responsibilities and they are influential.

1st Lumbee Elder: I’m not aware of that, but just being Indian in North Carolina the politics of North Carolina, the [non-Native] leaders, the whole government, the working of government in North Carolina certainly respects and pays attention to Indians in North Carolina. […] Lumbees are doggedly Democratic, but some of the best friends we’ve had politically have been Republican.

154 Others recognize the resources available because of the Lumbee state recognition status and the political involvement within the state.

Lumbee Tribal Official: The state can help you do a lot of things that you couldn’t do otherwise. Look at the grants that come in, they come in because of how we are associated with the state.

Pushing Political Agenda

Lumbees are aware of the level of influence they have within the state political landscape, as one participant who was very candid in her response stated:

Lumbee Tribal Government Employee: Now we set the tone for state politics. Anything that goes on in Indian business, Lumbees are going to be the first to be consulted.

With Lumbees obtaining influential positions or serving political offices, a space is created to push their own agenda. Placing Lumbee people in local and state offices to push a Lumbee agenda has been a successful strategy for the nation. For instance, the NC ICWA example I provided in Chapter Four. A Lumbee recognized that the general welfare of Native children was not a priority for the North Carolina General Assembly. After a follow-up bill to take action from the findings of the “House Study Committee to Preserve the Culture and Customs of Indian

Children” was not introduced to the Assembly, another route was taken. The direct connection with the Court Improvement Project created a channel of communication with the State

Department of Social Services, the local DSS, and the eight Native nations represented in North

Carolina to initiate discussions around including state-recognized children and homes in the foster placement process. The ability to identify state-recognize Native children in existing legislation that provides similar exceptions as ICWA, a national policy, is a significant example demonstrating the reach of Lumbee political influence.

Lumbee Keys to Success

155

Being active participants in the federalism landscape has been a very important key to the various strategies working for Lumbees. Their consistent ability to vote in large numbers has created a political environment where outsiders are acknowledging Lumbee concerns. Once an arena has been identified to pursue a political agenda, Lumbees have been able to expand the agenda to include all Native communities in the state. Acknowledging that broad policy implication has an even greater political influence, leaders identify arenas where the impact extends across communities and not just one, for example, the NC ICWA legislation. The legislation is not specific to Lumbees, but recognizes all children from North Carolina state- recognized communities.

Another key to success is community leaders serve as activist to get things done in the community. Leaders recognized that education would serve as a tool to put Lumbees in positions of influence.

1st Lumbee Elder: The Burnt Swamp Association the leaders who helped organize this association a hundred and twenty-five, thirty years ago were also the community leaders who helped bring this University here. They were the community leaders who were in charge of businesses in the Indian community. […] It was just in the 19th century that education of Indians was basically a communities’ responsibility because the state of North Carolina was not helping us educate. They weren’t building our schools. So communities had to do that. The Lumbee people, it appears to me, have been a very responsible people through the years of just taking initiative to look after their own, develop their own, and grow their own.

Organizing politically and adopting a constitution created a successful avenue to assert self- governing authority. A constitution articulates a nation’s values and rules to internal members and to outsiders. Writing those rules down demonstrates to outsiders that a government structure exists and there are specific rules to follow. According to the Executive Director for the NC

156 Commission of Indian Affairs, Lumbees are the only state-recognized Native nation to create a judicial branch within the constitution.

2nd Lumbee Elder: A constitution is designed for governance and guidance and direction. Also, identifying why the tribe exist. […] It [tribal court] deals specially with tribal issues and it wasn’t set up to replace the court system, the state or the federal. It was specifically designed to address those concerns and issues that were indigenous to the tribe that could only be adequately adjudicated through a court system.

Lumbee Tribal Government Employee: And one of the reasons for that is because in 1960s when we started out as a nonprofit corporation because that was a way to get funding in the area with LRDA. And that was the whole purpose of the movement to adopt a tribal constitution because the people had no control over our own affairs. Because when you were functioning as a private nonprofit corporation in the laws of the State of North Carolina that’s you, your people don’t have any input in that unless you put that in there and still at any given point in time that board of directors can go in there and take that out.

Just as voting is a strategy for the Lumbee people, voting is also a key to success. The sheer size of the Lumbee and the active voter participation ensures that their concerns will be heard.

Lumbee Challenges

Even though Lumbees have political influence in local and state politics, specifically,

Indigenous affairs, I think there is a heavy reliance on that relationship and not enough internal institutions to address issues in the community. One respondent recognizes the reliance on North

Carolina politics as:

2nd Former Lumbee Tribal Council Member: The only thing I could say is that sometimes we have this sovereignty, we think we have, say we have, and I believe we have internal sovereignty, but you are still going to be under the North Carolina law. Even being state recognized that is the way it is. I think that is some of the issues that are going on internally because if law is not written by the government then you go with the common law, then you look at North Carolina state law. Sometimes I think what’s happening now by us being state recognized is they are looking at North Carolina law more so than trying to handle internal sovereignty that we can handle within ourselves here.

The former Council member offers a valid point, if the community knows that internal sovereignty exists, why rely on North Carolina law rather than building their own laws according

157 to Lumbee custom and tradition. This argument is not to suggest that Lumbees have not crafted their own ordinances because a substantial amount of ordinances have been adopted since the first elected Tribal Council was sworn in. However, returning to the NC ICWA example, the

Tribal Council has yet to pass a child welfare ordinance. The North Carolina code states that the court may order DSS to notify the juvenile’s state-recognized community for placement.

Considering state-recognized Native nations are under civil and criminal jurisdiction, the state courts have jurisdiction concerning child welfare. State jurisdiction should not prevent the

Lumbee tribal government from designing its own child welfare code reflecting how the government will approach Lumbee responsibilities concerning their children. As I suggested in

Chapter Four, there are other ways the tribal government can become proactive in ensuring there are licensed Lumbee foster parents for children to be placed rather than relying on the local DSS to license foster families.

The Lumbee tribal government has effectively exercised self-rule in some areas, such as adopting a constitution with defined roles and responsibilities; however, I would argue that the government does not accurately represent Lumbee traditional governance. In Chapter Four, I explained that, traditionally, Lumbee communities were autonomous and only came together as a collective when an external threat emerged. One could argue that autonomy continues to exist today even though their constitution created a centralized government. It is common practice for a Lumbee from one community to stay out of another community’s affairs. For instance, a

Lumbee leader in Pembroke would not tell Prospect how to address a problem. This centralized political structure is problematic for the tribal government and is noticeable through the constant bickering among the tribal council. My participants credited the tribal political divisiveness within the legislative branch, and between the legislative branch and executive branch to

158 “growing pains” with the new constitution. I am not completely convinced that is the reason there is so much dissention, but rather the centralized government simply does not accurately distribute Lumbee communities enough political autonomy and authority as they were traditionally.

Many leaders from various Lumbee communities act independently (with the blessing or encouragement of the community members) to reach out to the state or national government if an issue arose. Although Lumbee leaders are aware of ways to leverage their political influence in federalism arenas, it would appear at times these leaders are acting independently and not necessarily communicating with others about their strategy or approach. One could argue—and many Lumbee leaders have said—that the scattered approach to participating in these arenas has been the demise of Lumbee political unity and, more importantly, the reason they are not federally recognized. You often hear in the community, "we're our own worst enemy." These alternative arenas provided a political space to negotiate resources for the people, but also pitted one community against the other concerning who had the proper decision-making authority.

Since the beginning of the state relationship, Lumbees have contested national and state interests in various ways. Two years after establishing a separate school system through the state of North Carolina, Lumbee leadership began petitioning the national government for financial support for their schools. During the Indian New Deal era when the Lumbees attempted to reorganize under the Indian Reorganization Act, one community of Lumbee leaders, the “town

Indians,” sought state and local—white—support for federal recognition, while another group,

“the swamp Indians,” or “country Indians” went straight to the Bureau of Indian Affairs for assistance.253 The group that sought assistance from the BIA was the driving force behind creating Pembroke Farms in the Red Banks community, but neither recognized the authority of

253 See Lowery, Lumbee Indians in the Jim Crow South: Race, Identity, and the Making of a Nation

159 the other. Even using the NC ICWA example, in 2009, the tribal government was working with

Lumbee churches to increase the number of available foster homes while a Lumbee executive director of a local nonprofit approached a former NC Representative to submit a bill to the general assembly to enforce the national Indian Child Welfare Act. The Council was not aware of the Representative’s actions until the bill passed a house committee and he presented it at a monthly tribal council meeting. At the meeting, the Council was upset with the lack of consultation concerning the bill and the Representative was unaware of the government’s local efforts.254 No one communicated to the other to present a unified effort. There is an inability to collective organize to push a unified agenda because much of the time the issues pursued are on an individual basis and not by the tribal government.

I believe Lumbee leaders have acted independently for so long with varying degrees of success that they have not focused enough attention at organizing their efforts under the tribal government umbrella. The Lumbee tribal government has not really internalized the self-rule component of nation building. Whether it is because of the limited arenas to pursue in exercising self-rule or if it is the effects of leadership focusing on specific strategies, there seems to be more efforts in self-administration and less in self-government.255 Without clearly articulated strategies to people within the community and outsiders, some of these approaches resemble actions of a special interest group rather than an exercise of self-determination. There are opportunities to exercise self-rule, but capable institutions are the foundation to nation building.

Waccamaw Strategies: What Works

254 Chamberlain, Sutton, Council Bump Heads 255 Miriam Jorgensen, ed., Rebuilding Native Nations: Strategies for Governance and Development (Tucson: University of Arizona Press, 2007). The Harvard Project and Native Nations Institute define self-administration as running programs of someone’s design. Self-government, on the other hand, is an assertion of rights by developing laws, strategic community development, and others.

160 The Waccamaw too have influenced South Carolina politics by soliciting support from state legislators; however, the relationship does not have the same historical ties as the

Lumbee/North Carolina experience. Although a school existed for the Waccamaw, it was recognized more by a de facto approach rather than a state supported separation. According to state documents, the Dimery School was classified as a white school, but only children from the

Dimery Settlement attended it because of its proximity. The state’s attempt to re-classify the school as serving black students presented an opportunity for the community to assert a unified voice to counter the re-classification. The Waccamaw strategy to resist continued re- classification and discrimination resulted in isolation from interacting with the state in a very

“exit” strategy. Contemporarily, the current leadership has made connecting and asserting a

“voice” with the state legislators a priority. That level of political influence too has not gone unnoticed. Many in the Native community on the state and local levels recognize the level of influence of the leadership.

Native American Affairs Coordinator, South Carolina Commission of Minority Affairs: I know Chief Hatcher, in our conversations; he’s very well connected with a lot of the political leaders here in the state. A lot of the agencies, he’s able to get meetings in when most other people cannot. So, I feel like he has a good working relationship with most other agencies in the state.

Chief Harold Hatcher, Waccamaw Indian People of South Carolina: I get along well with the politicians.

The Chief’s ability to establish those political connections has led to the passage of significant legislation such as the use of wild turkey feathers, the Native American marriage law, and the introduction of legislation to support the return of Native remains.

Strategies Keys to Challenges Unexplored Success Opportunities Waccamaw Political Leadership Charismatic leader Standing Committee on “Friends” to sustainable Indigenous Affairs nation building Youth Council

161 Pushing Leadership Leadership Expanding Legislation Political identifies agenda to Focus Agenda pursue Serving as Political Actors Inter-tribal Collaboration Internal Leadership Population Expanding Legislation capacity Focus Youth Council Figure 17: Lessons Learned: Waccamaw Both communities vary on the level of influence in political arenas, but I would argue that has a lot to do with the length of time for each relationship and the population. Each community has similar approaches in engaging the state to provide solutions for community issues: political

“friends”; pushing a political agenda; building internal institutional capacity (see Figure 17).

These solutions also highlight the uniqueness of these Native communities in each state and the state’s recognition of such unique status.

Political “Friends” Waccamaw have an estimated 400 members, a significantly smaller population compared to Lumbee. Because of the small size, Waccamaws have relied on leadership to pursue their political agendas. Despite the relatively small population size, the Waccamaw are still able to influence state legislation as I illustrated in Chapter Five.

Cheryl Sievers, 2nd Chief Waccamaw Indian People of South Carolina: So again we are still at a point because we’re such a minority, we don’t really have a voice. So how can you…it is really difficult to get, even with state recognition, to have any power. I think Chief Hatcher has done a tremendous job because he pushes to get things done in our state and not just for the Indians in the state; he tries to do that for all the Indians. If he is doing something, he is setting precedence. That is going to change and it’s the ripple effect. Using animal parts in Native American crafts, that’s a big thing. That is something he would like to see happen. It shouldn’t be the way it is. Then the marriage ceremonies being able to have a chief, tribal chief, or like the fire keeper, maybe not an elder, but a spiritual leader to do marriage ceremonies.

162 Even though the entire Native population in South Carolina, let alone the size of Waccamaw, is smaller than the population in North Carolina—and the entire Lumbee Tribe population—the numbers are significant enough to impact legislation change for the state.

Former South Carolina State Official: I don’t think there are any [disadvantages]. I think it’s a win-win in every way for them. The fact that they got themselves involved methodically in the state legislative process, the fact that we have about 30,000 Indians in South Carolina is more important than they give themselves credit for.

Having a population to influence and pursue political agendas is an important factor when considering any political relationship. The former South Carolina state official recognizes that a large population can impact change within state politics and reinforces the voice strategy discussed in Chapter Five.

Pushing Political Agenda

Waccamaw is an interesting case study because of the newness of the South Carolina political relationship. Just as Lumbees, Waccamaws have effectively pushed their agenda to the state General Assembly to get things done. Chief Hatcher understood the power of leveraging political support. Often in our discussion, he spoke of his strategy as being most effective because of his constant contact with state officials, especially during campaign season.

Chief Harold Hatcher, Waccamaw Indian People of South Carolina: See I knew [former] Governor Hodges and I had been bugging him about trying to do something for Indians when he was running for Governor. He ran against David Beasley; I don’t know if you remember him or not. I knew David too. Both of them were good guys. David was a Republican. Hodges was Democrat. David was the Governor and David, he would meet with me and talk with me and promise me things and never do them. The National Congress of American Indians was coming through Myrtle Beach for a convention. I remember it must’ve been year 2000 or something like that. I asked the Governor [Beasley] if he would go down and greet those Chiefs that came in. [Beasley said] ‘Ain’t got time.’ I felt like that was pretty ridiculous you know. The Chiefs coming from all over the country to Myrtle Beach and you ain’t got time. He had time to go help George Bush run for President. So anyway, we were doing a parade in Loris [South Carolina]. David was coming in on a helicopter. We were standing in the street waiting for the parade to start, and the Governor came in by chopper and that was the day they were meeting in Myrtle Beach. He got off the chopper and came walking over to where

163 we were and I asked him. I said, ‘Governor, we need to talk.’ He said, ‘We’ve already talked Chief.’ I said, ‘We ain’t talked enough cause you ain’t done anything you said you would do.’ He said, ‘We’ll talk after the election.’ I said, ‘I don’t think so. I think you ain’t going to be here after the election.’ [He said,] ‘Oh yeah, I’ll be here.’ I said, ‘Well, you know these guys are meeting at Myrtle Beach. You need to come down there and see them.’ [He said,] ‘I ain’t got time.’ So, I said, ‘alright.’ After the parade, I called Hodges campaign number and told him about them. He said, ‘I’ll be down there this afternoon.’ I said, ‘Meet me there.’ So, he came in and talked to them and sure enough, he was the next Governor. I told him I said, ‘you need to do something for Indians.’ He said, ‘what do I need to do?’ I said, ‘well there’s no recognition in the state and we need a process to do that.’ He said, ‘Well, I’ll see what we can set up.’

Under Governor Hodges’ administration, the criteria for state recognition was established within the state. The Chief understood the opportunity as a means to push a political agenda for state officials to notice. It is a political game in most instances, but these leaders understand how that game works because they have been involved in the political arenas.

Internal Capacity

Waccamaw have also had success internally. I explained in Chapter Five that obtaining state recognition placed Waccamaw artists within the parameters of the Indian Arts and Crafts

Act of 1990. In compliance with the Act, the Waccamaw government instituted a certification process for their artists. The certification process is not mandatory, but Waccamaw artists who wish to certify their art as “Waccamaw arts and crafts” may apply. Certification includes a committee to jury the art and then label it either traditional or contemporary piece of art.

Waccamaw categorize traditional art as pieces made out of natural items, for instance, wood, clay, etc. Whereas, websites, paintings, and other like pieces characterize contemporary art.256

This process ensures that Waccamaw arts and crafts properly represent who they are as a people.

When I spoke with Chief Hatcher, he was concerned with Waccamaw artists being able to sell their work. Many Waccamaw artists rely on their arts and crafts to make a living. State recognition provided a resource to authenticate Waccamaw artists, but the tribal government

256 Knick and Spivey, Waccamaw Indian People of South Carolina

164 pushed that notion a little further to include a Waccamaw standard. This example, to me, is an effective use of internal institutions.

Waccamaw Keys to Success

Waccamaw keys to success are similar to Lumbee examples. However, the leadership has been the driving force to ensure that the state meets the needs of the Indigenous population.

Chief Hatcher has been that person for the Waccamaw community. He has poked and prodded the political leaders in South Carolina to acknowledge not only the Waccamaw people, but also the Indigenous population throughout the state. His persistence led to the passing of key pieces of legislation, such as the marriage law, use of wild turkey feathers, and state recognition. This is a success with limitations because as I will discuss in the next section, over relying on one person can hinder community building.

Waccamaw Challenges

In Chapter Five, I argued that Waccamaw leadership, specifically Chief Hatcher, has pushed South Carolina legislators to act on behalf of the Native population in the state. The

Chief’s perseverance and tenacity to make non-Indigenous legislators notice Indigenous issues has resulted in passing of several pieces of legislation. However, what happens when the Chief is no longer serving in his official capacity? How are those networks maintained or strengthened?

Just as I believe Lumbees have developed an overreliance on the political relationship with the state of North Carolina, it would appear the Waccamaw rely on the Chief to push their agenda at the state level.

Cheryl Sievers, 2nd Chief Waccamaw Indian People of South Carolina: I would probably say that is the biggest issue. The only other thing is that we have gotten to a point of depending so much on Chief Hatcher. He has led, he led, he’s led. He’s a great leader. For me anyways, I think it is probably unspoken. What happens when he is gone? He has talked about it. He wants to step down. He wants to retire. He’s tired. I am thinking who is going to continue, who is going to be able to be effective.

165 Having a dynamic leader is an important aspect to getting where you want to go as a people. To continue the direction and method to achieve those goals requires having a leader that the community supports and trusts to accomplish such tasks. The challenge of having such a dynamic leader is his or her own agenda may become priority over the community as a whole, or the leader sets the agenda for the community.

Another challenge is leadership sustainability. The ability to build external and internal relationships does not occur overnight, but one person should not monopolize the process. One of the principles in Native nation building requires a dynamic leader, someone who can think strategically for the nation, someone who can move the nation toward its goals. Native nation building literature addresses this key issue, if a nation is relying on one person to get the job done then the nation is vulnerable.257 In other words, how do you transition from a dynamic leader able to get things done to a well-operating organization with the same outcome? There have been previous efforts to develop a formal apprenticeship program for the Waccamaw firekeeper. Maybe use the same approach and develop a leadership apprenticeship or create a youth council that will help cultivate Waccamaw leaders. More importantly, leadership extends beyond the person. Good leadership requires establishing strong governing institutions that will not waver regardless who is in charge. Establishing a way for a community to sustain regardless of leadership is an important aspect of nation building.

The Waccamaw population is an obvious challenge. The problem with having such a small population is the state can easily ignore a community as South Carolina did in the past.

257 Jorgensen, Rebuilding Native Nations: Strategies for Governance and Development, 87. See also "Past and Present: Charismatic Authority and its Routinization. “From Max Weber: Essays in Sociology, trans. H. H. Gerth and C. Wright Mills (New York: Oxford University Press, 1946), 220. Sociologist Max Weber would argue for an institutionalization of the leadership rules. “The prince or the hierocrat no longer rules by virtue of purely personal qualities, but by virtue of acquired or inherited qualities, or because he has been legitimized by an act of charismatic election. The process of routinization, and thus traditionalization, has set in.”

166 Finding a way to push an agenda despite having the political influence with voting numbers is a significant hurdle to overcome. Chief Hatcher has been able to counter this issue by constantly pushing an agenda in favor of all South Carolina Indigenous peoples.

Unexplored Opportunities

The most successful strategy for both communities is the ability to garner support from state legislators to introduce legislation to the General Assembly. A common challenge would be the heavy reliance on the external political landscape. A heavy reliance distracts from not enough strengthening of internal institutions to address issues within the communities. In other words, each community has played the rules established by the state and heavily relied on that political landscape to operate within rather than focusing on internal infrastructure to address issues. For the Lumbees, ever since state recognition a group of representatives contacted the national government, especially the BIA, for any issues they were experiencing. The success of the serving as political actors’ strategy suggests that the Lumbee government has yet to fully develop its own institutional capacity.

The other examples of state-recognized Native nations I provided in Chapter Three illustrates an assertion of jurisdiction, managing resources, and exercising self-determination rights outside of the exclusive tribal-national government-to-government relationship.

Jurisdiction is a main component of self-government and thus, nation building. Jurisdiction demonstrates an authoritative governance system where people within the prescribed boundaries recognize and understand the laws. The MOWA Band of Choctaw and the Shinnecock Nation were able to successfully establish jurisdictional boundaries recognized by the state and other outsiders to assert some form of rule of law. Both had state recognized “reservation” boundaries

167 consisting of contiguous pieces of land, which may have made it easier to recognize jurisdiction, whereas, both Lumbee and Waccamaw have mainly individual fee lands with the exception of the lands held by the tribal government. However, possibly, there is a strategy of asserting jurisdiction within the tribally owned tracts of land.

The Pamunkey Nation and to a lesser extent the Fernandeño Tataviam Band of Mission

Indians were able to partner with local governments to manage resources or at least have a say in how resources would be managed. Both Lumbee and Waccamaw traditional land surround the

Lumbee and Waccamaw rivers respectively and both communities are known to traditionally hunt and fish. I think models are available in the Pamunkey and Tataviam examples that the

Lumbee and Waccamaw can both expand their self-governing reach outside of the housing and small assistance funds they are currently receiving.

Indigenous peoples participating in federalism arenas have found ways to highlight the system’s flexibility. State-recognized Native nations have actively participated in the arenas because an exclusive tribal-national government-to-government relationship does not exist. To better utilize the system’s flexibility more state-recognized tribal governments may start negotiating intergovernmental agreements, outside of state and local legislation, to exercise true self-governing authority. Other possibilities include adopting a cabinet model incorporated in the

New Mexico Governor’s Office. This model pushes the advocacy component seen in

Commission of Indian Affairs Departments or Agencies further. Under the cabinet model, not only are the cabinet personnel advocating for Indigenous issues, but also that person is influencing other legislation that may appear peripheral to Indigenous affairs by having a seat in the Governor’s Office.

168 After the revised Juvenile Code passed in 2013, I followed up with my some of the people I interviewed on this topic to examine its implementation. My conversation highlighted the typical bureaucratic process, when I was repeatedly referred to another department because the other did not have the answer in this endless email chain. Nevertheless, I also witnessed this very organic exchange where the Executive Director of the Commission of Indian Affairs asked a state official whether the North Carolina Bar Association had an Indian Law Committee or

Division. The official quickly offered that the state does not have such options and the Executive

Director extended an offer to meet to discuss the possibilities. This example goes to show having one or two people advocating on your behalf is nice, but having a collective body carries more weight.

How Have They Survived: By the Seat of Their Pants

As I began to conclude my interviews I recognized that these communities are not waving their flag saying “we’re state recognized, you must treat us as such.” They are simply trying to survive. Moreover, their resistance to be classified as anything other than Lumbee and

Waccamaw is really at the heart of this research. State recognition has allowed these communities the opportunity to assert a voice on issues they face as they try to survive as a community.

2nd Lumbee Elder: It’s survived off of sheer will. A will to survive. A will to not give in to the demise and the powers and the oppressiveness of a racist community, a racist government.

1st Lumbee Community Member: I think the Lumbees are too mean for people to come down there and bother them. […] And the family is always, they’re taking care of the kids. If the dad is out of the home or if the mom is strung out on drugs, the family members pick up those kids so they don’t go into foster care. So again, it’s the family unit that kind of holds things together for the community.

169

2nd Lumbee Community Member: Family, kinship, community. It goes right back to that we fuss, fight, shoot each other in the feet, but at the end of the day we’ll come right back together.

Lumbee Tribal Government Employee: And that pride. We have a sense of pride because we have fought so hard to maintain our identity and to maintain that separateness from the non-Indian community. When you look back and look at what our people went through to get us where we are today, it’s hard.

Cheryl Sievers, 2nd Chief Waccamaw Indian People of South Carolina: Well the first thing that you said is family because family does hold things together. When you know that person next to you, you may not like them all the time okay just like family. But you know that come good or bad they’re going to be there hopefully to support what it is the right thing.

Lumbee Tribal Official: By the seat of their pants, realizing that it hurts when you get whipped, and when you get whipped you do something about it. That’s how we survived.

State-recognized Native nations are active players in each state’s political landscape. This strategy is typically considered taboo for some federally recognized Native nations because of the well-established tribal-national government-to-government relationship. However, as federally recognized Native nations are engaging local and state governments more than before perhaps state-recognized Native nations may provide strategies for effective and successful relationships. These strategies include voting in local and state elections, holding state and local offices, and actively petitioning legislators for new or revised state legislation to address their needs. It may behoove scholars and practitioners alike to acknowledge and approach state recognition as an alternative government-to-government relationship rather than an arbitrary classification.

Concluding Remarks

170 Federalism is often viewed as a colonial system that Native nations should not have to engage in because of their sovereign position outside of U.S. foundation. The U.S. Constitution,

Supreme Court cases, and years of legislation and policy established an exclusive government- to-government relationship with the national government. This assessment is completely accurate, Native nations are both pre- and extra-constitutional sovereigns within the United

States. However, the political landscape has changed. The U.S. national government has changed. Tribal governments have changed. Participating in the federalism landscape should not be viewed as illegitimate, but should offer other arenas of possibilities to engage in self- determination practices. In no way do I intend for my research to dismiss any previous work and encourage acts of assimilation, but only provide a different view of how to use federalism to a

Native nation’s advantage. In the end, all nations regardless of their classification want to survive as a people. My hope is to provide a small piece of the state-recognized story documenting how they have survived and used the flexibility of federalism to their advantage.

There are several areas for future research concerning how we view federalism and

Native nations. I have begun identifying variables that could inform a tribal-state relationship model based on federalism arenas. Another possibility is identifying how and in what ways can federally recognized and state recognized Native nations use federalism arenas in a collaborative effort. The rejection of NCAI resolution demonstrates the willingness for federally recognized

Native nations to include other classifications in their circle, but how are they relating with one another as governments. In a 2014, the Arizona State University’s Sandra Day O’Connor

College of Law hosted a conference, “Who Decides You’re Real? Fixing the Federal

Recognition Process” attended by a couple of hundred Native leaders representing both non- and federally-recognized Native nations. At the end of the conference, a ceremony was held where

171 several Indigenous leaders representing the groups in attendance signed a “Declaration on the

Exercise of Inherent Sovereignty and Cooperation” to serve as a diplomatic expression of relations; moreover, it provided recognition between non-and federally recognized Native nations. How and in what ways does federalism provide arenas for such exchange? Another area for future research is trust land. Tribal trust land status is engrained in the exclusive tribal- national government-to-government relationship. One could argue Lumbee and Waccamaw have had varying degrees of individual success because of their ability to use fee land as collateral.

Trust land prevents that in Indian Country. What are the benefits that can be maintained using federalism arenas without having such restrictive outcomes?

172 Bibliography

"The Federalist Papers." Library of Congress2014. https://www.congress.gov/resources/display/content/The+Federalist+Papers.

"Past and Present: Charismatic Authority and its Routinization." In From Max Weber: Essays in Sociology. Translated by Gerth, H. H. and C. Wright Mills. New York: Oxford University Press, 1946.

Anderson, Ryan K. "Lumbee Kinship, Community, and the Success of the Red Banks Mutual Association." American Indian Quarterly 23, no. 2 (1999): 39-58.

Atwood, Barbara. "The Voice of the Indian Child: Strengthening the Indian Child Welfare Act Through Children’s Participation." Arizona Law Review 50, no. 1 (2008).

Barton, Lew. The Most Ironic Story in American History: An Authoritative, Documented History of the Lumbee Indians of North Carolina. Charlotte, North Carolina: Associated Printing Corporation, 1967.

Bass, Jack and W.Scott Poole,. The Palmetto State: The Making of Modern South Carolina. Columbia: University of South Carolina Press, 2009.

Blu, Karen I. The Lumbee Problem: The Making of an American Indian People. Vol. 5. Cambridge; New York: Cambridge University Press, 1980.

Bowman, Ann O'M. "American Federalism on the Horizon." Publius 32, no. 2 (2002): 3-22.

Bruyneel, Kevin. The Third Space of Sovereignty: The Postcolonial Politics of U.S.-Indigenous Relations. Minneapolis: University of Minnesota Press, 2007.

Chamberlain, Knight. "Sutton, Council bump heads." The Robesonian,April 17, 2009, sec. News.

Champagne, Duane. "Centering Indigenous Nations within Indigenous Methodologies." Wicazo Sa Review 30, (Spring, 2015).

Colombi, Benedict J. and Courtland L. Smith. "Insights on Adaptive Capacity: Three Indigenous Pacific Northwest Historical Narratives." Journal of Northwest Anthropology 48, no. 2 (2014): 189–202.

Colombi, Benedict J. "Salmon and the Adaptive Capacity of Nimiipuu (Nez Perce) Culture to Cope with Change." American Indian Quarterly 36, no. 1 (2012).

Cooper, Christopher A. and H. Gibbs Knotts, eds. The New Politics of North Carolina. Chapel Hill: The University of North Carolina Press, 2008.

173 Cornell, Stephen E. and Joseph P. Kalt. "Two Approaches to Economic Development on American Indian Reservations One Works, the Other Doesn't." Joint Occasional Papers on Native Affairs (2005).

Cornell, Stephen E., Jonathan B. Taylor, and Harvard Project on American Indian Economic Development. Malcolm Wiener Center for Social Policy. Malcolm Weiner Center for Social Policy. "Sovereignty, Devolution, and the Future of Tribal-State Relations."Harvard Project on American Indian Economic Development, Malcolm Wiener Center for Social Policy, John F. Kennedy School of Government, Harvard University, Cambridge, MA.

Corntassel, Jeff and Richard C. Witmer. Forced Federalism: Contemporary Challenges to Indigenous Nationhood. Vol. 3: 3. Norman: University of Oklahoma Press, 2008.

Courey Toensing, Gale. "NC's Newest Voting Bloc: State Tribes Support Hagan." Indian Country Today Media Network.,2014.

Crediford, Gene J. Those Who Remain: A Photographer's Memoir of South Carolina Indians. Tuscaloosa: University of Alabama Press, 2009.

Deloria, Vine., Lytle, Clifford M.,. American Indians, American Justice. Austin: University of Texas Press, 1983.

Deloria, Vine. Custer Died for your Sins: An Indian Manifesto. New York: Macmillan, 1969.

Dial, Adolph L. and David K. Eliades. The Only Land I Know: A History of the Lumbee Indians. The Iroquois and their neighbors. Syracuse, N.Y.: Syracuse University Press, 1996.

Evans, William McKee. To Die Game. Syracuse: Syracuse University Press, 1995.

Fletcher, Matthew L. M. "Retiring the 'Deadliest Enemies' Model of Tribal-State Relations." Tulsa Law Review 43, no. 1 (2007): 73.

Gallay, Alan. Indian Slave Trade: The Rise of the English Empire in the American South, 1670- 1717. New Haven, CT: Yale University Press, 2002.

Gasque, Conan. "Lumbee Leaders Seek Qualified Foster Parents." SC Now.,December 28, 2012.

Hazel, Forest. "The Dimery Settlement: Indian Descendants in the South Carolina Low Country." The Independent Republic Quarterly 29, no. 4 (Fall 1995).

Hill, S. Pony. Strangers in Their Own Land: South Carolina's State Indian Tribes. Palm Coast: Boxes & Arrows, Incorporated, 2013.

Hirschman, Albert O. Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States. Cambridge, Mass: Harvard University Press, 1970.

174 ICTMN Staff. "Delaware Nation President: State-Recognized Tribes Cutting Into Federal Funding 'Pie'." Indian Country Today Media Network.,2012.

Jenkins, Venita. "Lumbee Foster Families Scarce." The Fayetteville Observer.,May 20, 2007, sec. Local & State.

———. "Lumbee Tribe Builds Capital, Success." The Fayetteville Observer.,2009.

Johnson, Susan, Jeanne Kaufmann, John Dossett, and Sarah Hicks. Government to Government: Understanding State and Tribal Governments. Denver, Colorado & Washington, D.C.: National Conference of State Legislature & National Congress of American Indians, June 2000.

———. . Government to Government: Models of Cooperation Between States and Tribes. Denver, Colorado; Washington, D.C.: National Conference of State Legislatures; National Congress of American Indians, April 2009.

Jorgensen, Miriam, ed. Rebuilding Native Nations: Strategies for Governance and Development. Tucson: University of Arizona Press, 2007.

Kettl, Donald F. "Federalism: Battles on the Front Lines of Public Policy." In Principles and Practice of American Politics: Classic and Contemporary Readings, edited by Kernell, Samuel and Steven S. Smith. 3rd ed. Washington, D.C.: Ringgold, Inc, 2006.

Klopotek, Brian. Recognition Odysseys: Indigeneity, Race, and Federal Tribal Recognition Policy in Three Louisiana Indian Communities. Durham [N.C.]: Duke University Press, 2011.

Waccamaw Indian People of South Carolina. Directed by Knick, Stan and Michael Spivey. Pembroke, N.C. : Native American Resource Center, UNC Pembroke: 2012.

Koenig, A. and J. Stein. "Lost in the Shuffle: State-Recognized Tribes and the Tribal Gaming Industry." University of San Francisco Law Review. 40, no. 2 (2006): 327-380.

Koenig, Alexa and 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." Santa Clara Law Review. 48, no. 1 (2008).

Kymlicka, Will. "Transitional Justice, Federalism, and the Accommodation of Minority Nationalism." In Identities in Transition: Challenges for Transitional Justice in Divided Societies, edited by Arthur, Paige. Cambridge; New York: Cambridge University Press, 2011.

Largo, Jim. "Former Chief Continues Work on Issues in South Carolina." Indian Country Today Media Network., November 22, 2006.

175 Leach, Lauren. "Graves Disturbed in Indian Cemetery." The Sun News,September 17, 1998, sec. Front.

Light S.A. "Indian Gaming and Intergovernmental Relations: State-level Constraints on Tribal Political Influence Over Policy Outcomes." American Review of Public Administration 38, no. 2 (2008): 225-243.

Loewen, James W. The Mississippi Chinese: Between Black and White. Harvard East Asian series. Vol. 63. Cambridge, Mass.: Harvard University Press, 1971.

Lomawaima, K. Tsianina. "Federalism: Native, Federal, and State Sovereignty." In Why You Can't Teach United States History Without American Indians, edited by Sleeper-Smith, Susan. Chapel Hill, NC: The University of North Carolina Press, 2015.

Lomawaima, K. Tsianina and T. L. McCarty. "To Remain an Indian": Lessons in Democracy from a Century of Native American Education. Multicultural Education Series. New York: Teachers College Press, 2006.

Lowery, Malinda Maynor. Lumbee Indians in the Jim Crow South: Race, Identity, and the Making of a Nation. First peoples: New Directions in Indigenous Studies. Chapel Hill: University of North Carolina Press, 2010.

———. "Telling Our Own Stories: Lumbee History and the Federal Acknowledgment Process." American Indian Quarterly 33, no. 4 (2009): 499-522.

Lumbee Tribe of North Carolina. "8(a) Certification and Economic Development." Lumbee Ledger.,December 2014.

Matte, Jacqueline Anderson. "Extinction by Reclassification: The MOWA Choctaws of South Alabama and Their Struggle for Federal Recognition." Alabama Review 59, no. 3 (2006): 163.

McCulloch, Anne Merline and David E. Wilkins. "'Constructing' Nations within States: The Quest for Federal Recognition by the Catawba and Lumbee Tribes." American Indian Quarterly 19, no. 3 (1995): 361-388.

Miller, Bruce G. Invisible Indigenes: The Politics of Nonrecognition. Lincoln ; London: University of Nebraska Press, 2003.

Miller, Mark Edwin. Claiming Tribal Identity: The Five Tribes and the Politics of Federal Acknowledgment. Norman: University of Oklahoma Press, 2013.

———. Forgotten Tribes: Unrecognized Indians and the Federal Acknowledgment Process. Lincoln: University of Nebraska Press, 2004.

Norment, Mary C. The Lowrie History. Weldon, N.C: Harrell’s Printing House, 1875.

176 O’Brien, Jean M. Firsting and Lasting: Writing Indians Out of Existence. Minneapolis: University of Minnesota Press, 2010.

Oakley, Christopher Arris. Keeping the Circle: American Indian Identity in Eastern North Carolina, 1885-2004. Lincoln, Neb: University of Nebraska Press, 2005.

Papillon, Martin. "Adapting Federalism: Indigenous Multilevel Governance in Canada and the United States." Publius 42, no. 2 (2012): 289-312.

Paredes, J. Anthony. Indians of the Southeastern United States in the Late 20th Century. Tuscaloosa: University of Alabama Press, 1992.

Perdue, Theda. "American Indian Survival in South Carolina." The South Carolina Historical Magazine 108, no. 3 (2007).

Pevar, Stephen L. The Rights of Indians and Tribes: The Authoritative ACLU Guide to Indian and Tribal Rights. New York, NY: New York Univ. Press, 2004.

Pollard, John Garland. The Pamunkey Indians of Virginia. Washington, D.C.: Government Printing Office, 1894.

Pommersheim, Frank. Broken Landscape: Indians, Indian Tribes, and the Constitution. Oxford; New York: Oxford University Press, 2009.

Quinn, Jr, William W. "Federal Acknowledgment of American Indian Tribes: The Historical Development of a Legal Concept." The American Journal of Legal History 34, no. 4 (Oct., 1990): pp. 331-364.

Reilly, Alexander. "A constitutional framework for Indigenous governance." Sydney Law Review 28, no. 3 (2006).

Rosen, Deborah A. American Indians and State Law: Sovereignty, Race, and Citizenship, 1790- 1880. Lincoln: University of Nebraska Press, 2007.

Rountree, Helen C. "The Termination and Dispersal of the Nottoway Indians of Virginia." The Virginia Magazine of History and Biography 95, no. 2 (1987): 193-214.

Seelau, Ryan. "Regaining Control Over the Children: Reversing the Legacy of Assimilative Policies in Education, Child Welfare, and Juvenile Justice that Targeted Native American Youth." American Indian Law Review 37, no. 1 (2012): 63-108.

Sider, Gerald M. Living Indian Histories: Lumbee and Tuscarora People in North Carolina. Chapel Hill; London: University of North Carolina Press, 2003.

177 ———. Lumbee Indian Histories: Race, Ethnicity, and Indian Identity in the Southern United States. Culture and class in anthropology and history. Vol. 2. Cambridge England ; New York, NY, USA: Cambridge University Press, 1993.

Silver, Timothy. A New Face on the Countryside: Indians, Colonists, and Slaves in South Atlantic Forests, 1500-1800. Cambridge; New York: Cambridge University Press, 1990.

Steinman, E. "American Federalism and Intergovernmental Innovation in State-Tribal Relations." Publius-Philadelphia Then Denton TX- 34, no. 2 (2004): 95-114.

Swanton, John Reed. The Indians of the Southeastern United States. Washington: U.S. G.P.O., 1946.

United States. An Act to Regulate Gaming on Indian Lands. Washington, D.C.: U.S. G.P.O., 1988.

Weibel-Orlando, Joan. Indian Country, L.A: Maintaining Ethnic Community in Complex Society. Rev. ed. Urbana, Illinois: University of Illinois Press, 1999.

Wilkins, David E. American Indian Politics and the American Political System. Lanham, MD: Rowman & Littlefield, 2002.

———. "Breaking into the Intergovernmental Matrix: The Lumbee Tribe's Efforts to Secure Federal Acknowledgment." Publius 23, no. 4 (1993): 123-142.

———. "Reconsidering the Tribal-State Compact Process." Policy Studies Journal 22, no. 3 (Autumn, 1994).

Wilkins, David E. and K. Tsianina Lomawaima. Uneven Ground: American Indian Sovereignty and Federal Law. Norman Okla.: University of Oklahoma Press, 2001.

Williams, Robert A. Like a Loaded Weapon: the Rehnquist Court, Indian Rights, and the Legal History of Racism in America. Indigenous Americas. Minneapolis, MN: University of Minnesota Press, 2005.

Wilson, Zane and Joaquin Siopack. "Recognition." The Sun News,February 13, 2005, sec. Front.

Wolfe, Patrick. "Land, Labor, and Difference: Elementary Structures of Race." The American Historical Review 106, no. 3 (2001): 866-905.

Wood M.C. and Welcker Z. "Tribes as Trustees Again (Part I): The Emerging Tribal Role in the Conservation Trust Movement." Harvard Environmental Law Review 32, no. 2 (2008): 373- 432.

Woodard, Colin. "An unlikely handshake alters the course of Maine’s history." Portland Press Herald.,May 19, 1964.

178 Woods, J. Cedric. "Lumbee Origins: The Weyanoke-Kearsey Connection." Southern Anthropologist 30, no. 2 (2004).

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