#575
The Lumbee Tribe becomes the #575th federally recognized tribe
Being a federally recognized tribe in the United States officially recognizes the political relationship between the sovereign nation of a tribe and that of the United States of America.
This relationship is the foundation of land ownership in America,1 and it enabled the fledging U.S. government to “buy” land through treaties, with which they used to encourage settlement (manifest destiny) and to pay revolutionary war soldiers with 100 to 1000 acres of land in land bounties because there was little money to pay soldiers. Then they continued to use Indian lands to pay for other wars including the Indian Wars!2
The Tribes of first contact are on the East Coast from New England to Florida, and then New Mexico— all Spanish contact in the 16th Century. Then English colonization and since the English were the victors, the history is written from that perspective, often leaving out the Spanish, completely. The 16th and 17th centuries were periods of enslavement of Lumbee ancestors and it is estimated that 250,000 Natives were enslaved, shipped to other countries, including the Caribbean, Spain and Portugal. Some of the enslaved Natives made their way back to the Virginia and North Carolina colonies.
The tribes of first contact were enslaved, shipped away, died of smallpox or were killed, making land acquisition without treaties, easy. By 1871, Congress in my view, unconstitutionally ended the President’s Art. II treatymaking power with Indian tribes. (See my article on challenging that unconstitutional statute.3)
The Lumbee Tribe survived all of this and found refuge in the swampy areas of North Carolina and South Carolina, and were recognized by the state of North Carolina in 1885. The federal government also made frequent visits to the Tribe and excavations and reports from the Smithsonian accumulated knowledge of the history of the people and their artefacts. Reports were written analyzing the feasibility of state recognition verses federal recognition as early as the 1880s (the McMillian Report). Finally in 1956, the Tribe took the political opportunity to chose their own name and that’s the year the U.S. Congress passed a law, federally recognizing the Lumbee Tribe as Indians. But this was the Termination Era, when the federal government had a policy of eliminating Tribal governments, and so the bill lacked any of the usual benefits and opportunities of fully federally recognized tribes.
Once the Termination Era was over, the Tribe sought full federal recognition, but with legislation that says the Tribe cannot have the benefits of a federally recognized tribe, no amount of Executive rulemaking can overcome Legislative lawmaking. That is the way the Constitution favors the will of the people that comes from the Legislature.
That is why a memo from the Department of Interior which is the cabinet agency to house the Bureau of Indian Affairs, released a memorandum from their Solicitor General in 2016 saying that they interpreted the statue to mean that the Lumbee could seek recognition through the Executive Branch.4 However, as before, no amount of Executive rulemaking can overcome Legislative lawmaking. It was surprising that this memo passed scrutiny from the Department of Interior. Asst. Secretary of Indian Affairs, Kevin Washburn, a fellow law professor who I have great respect for (and in line to become the next President of the law professors associations, AALS). But this was an astonishingly narrow interpretation of the statute, if not outright wrong, but I believe it was an attempt to help us out of an untenable situation— a situation that was a kind of purgatory where you were neither fully recognized but not unrecognized, and no legal pathway to resolve it other than legislatively.
Knowing there was only a legislative solution to the problem, competing interests and tribal enemies, insisted that the Lumbee Tribe go through the Executive Branch’s Office of Federal Recognition (OFR) , knowing full well that was a dead end because legislation precluded full recognition. These dark forces used vast amounts of lobbying and funding to block efforts of the Lumbee Tribe to make a legislative change.5 Since the Office of Federal Recognition was established in 1978, only 18 Tribes have succeeded in getting recognition and decades pass during consideration. To illustrate the absurdity of this process, for example, the tribe of Pocahontas, the Pamunkey Tribe, was not federally recognized until 2015!6
Here is one of my favorite political cartoons that captures the Office of Federal Recognition process precisely, and the fact it is from almost 25 years ago, tells you how long the process has been seen as dysfunctional.
Why Pres. Trump likes the Lumbee Tribe
Pres. Trump ran for President in 2016, and won, in large part due to the Lumbee Tribe which is one of the most bipartisan Tribes in America and can tip decidedly conservative. They also tipped the scales toward Trump in 2020 and 2024, leading to a victory for the Trump team in North Carolina, a key swing state. Seeing this voting profile of the Tribe, Pres. Trump promised to give the Tribe federal recognition. But in seeking votes, a long line of Presidential candidates before him had also promised to give the Lumbee Tribe federal recognition, including Kamala Harris (both as a VP candidate and as a Presidential candidate) and Joe Biden —but no steps were taken to fulfill these promises. On one of the first day of the Trump Administration in 2025, the President signed an Executive Order directing his Administration to find a pathway to federal recognition for the Lumbee Tribe.7 That alone, was the most any President had done to follow through on their promise. This time might be different.
Senators from North Carolina had also promised to introduce legislation to recognize the Lumbee Tribe. This was done multiple times, with well-meaning U.S. Senators. For example, Sen. Elizabeth Dole, made the introduction of this legislation the first act of her Senate service, yet never got the bill out of committee.8
It is surreal
Senator Tom Tillis, the Senator from North Carolina, was the latest to introduce legislation to recognize the Lumbee Tribe in 2024. He was not taking no as an answer, but the bill never got to a vote. Then with the synergy from Pres. Trump, the Lumbee Fairness Act was added to The National Defense Authorization Act of 2026 (NDAA). The NDAA passed the House on December 10, 2025 with a vote of 312-112, yea-nay; and then passed the Senate, unchanged, on December 17, 2025 with a vote of 77-20, yea-nay. The next day, Pres. Trump signed the bill into law, and the Lumbee Tribe, People of the Dark Water, became the 575th federally recognized Native American Tribe.
The phrase I kept hearing from Lumbee Tribal members was “it is surreal” after working for the last 137 years for federal recognition. It is more than benefits, it is about identity and confirming your culture, history and worldview. But the Lumbee Tribe though denied that federal recognition for so long, never lost sight of holding to heritage and unity as a Tribe.
It is a surreal moment.
Johnson v. M’Intosh (1823) at https://supreme.justia.com/cases/federal/us/21/543/
https://www.archives.gov/files/research/military/bounty-land-1775-1855.pdf
https://www.doi.gov/sites/default/files/uploads/m-37040.pdf
See my article on the problems with this federal recognition process.
https://www.nps.gov/jame/learn/historyculture/federal-recognition-for-the-pamunkey.htm
https://www.whitehouse.gov/presidential-actions/2025/01/federal-recognition-of-the-lumbee-tribe-of-north-carolina/
https://www.congress.gov/bill/108th-congress/senate-bill/420/all-actions