Does North Carolina's Commission of Indian Affairs have the authority to recognize a newly organized 'Lumbee Tribe of Cheraw Indians' tribal council as the official government of the Lumbee Tribe, or to take sides between that council and the Lumbee Regional Development Association?
Plain-English summary
Gregory Richardson asked the AG to weigh in on the Lumbee tribal governance dispute that landed at the North Carolina Commission of Indian Affairs in 1994-1995.
The background: The Lumbee Tribe of North Carolina has been recognized by state statute since 1953 (§ 71A-3) but has lacked a formal written constitution and tribal government for over four decades. The Lumbee Regional Development Association (LRDA), a private non-profit, had assumed a leadership role for the community, maintained a tribal membership roll of over 45,000 members, and was identified in the Commission's by-laws as the body that administered Lumbee elections to the Commission.
In 1994, a group of Lumbees promulgated a written constitution and conducted an election to adopt it. They styled themselves the "Lumbee Tribe of Cheraw Indians" and selected a new tribal council under the new constitution. That council asked the Commission to recognize it as the government of the Lumbee Tribe. The Commission adopted a resolution that purported to do so.
The tribal council then used the Commission's resolution to argue to federal agencies that it (rather than LRDA) should be the recipient and manager of federal resources for the Lumbee people. LRDA disputed that and the conflict spilled into the federal funding arena.
Attorney General Michael Easley, Chief Deputy AG Andrew Vanore, Special Deputy AG T. Buie Costen, and Assistant AG D. David Steinbock answered: the Commission had no statutory authority to do what it did.
Administrative agencies have only the powers conferred by statute. The opinion lays out the standard administrative-law principle, citing 1 Strong's N.C. Index 4 and Am Jur 2d. The Commission of Indian Affairs is a creature of the General Assembly. Its powers come from § 143B-404 (creation), § 143B-406 (duties), and § 143B-407 (composition). The duties enumerated in § 143B-406 are study, procedures for state recognition of unrecognized groups, state recognition of groups, and initiating procedures for federal recognition. None of those duties includes recognizing or adjudicating tribal governments of already-recognized tribes.
The Commission seats, it does not select. § 143B-407(b) says "Members representing Indian tribes and groups shall be elected by the tribe or group concerned. Vacancies shall be filled by the tribal council or governing body concerned." This is a seating-only role, not a selection role. The tribes pick their representatives; the Commission gives them their seats.
The 1994 constitution and the new tribal council. The opinion identifies several problems with the new tribal council's recognition request:
- It is the "Lumbee Tribe of Cheraw Indians," a name distinct from the statutorily recognized "Lumbee Tribe of North Carolina."
- It has not been statutorily recognized by the General Assembly under § 71A-3 or any successor.
- It has not sought recognition through the Commission's established procedures.
- The 1994 election that adopted its constitution used no tribal membership roll, raising questions about whether the constitution speaks for the tribe as a whole.
Federal courts refuse to intervene in tribal elections. The opinion cites Williams v. Lee (1959), Rosebud Sioux Tribe v. Driving Hawk (8th Cir. 1976), and Goodface v. Grassrope (8th Cir. 1983) for the principle that federal courts should infringe as little as possible on tribal self-government. If federal courts will not step in, a state administrative commission with limited statutory authority certainly cannot.
The federal recognition path. Federally recognized tribes can call constitutional elections through the Secretary of the Bureau of Indian Affairs under 25 C.F.R. § 83.1 et seq. Neither the "Lumbee Tribe of North Carolina" nor the "Lumbee Tribe of Cheraw Indians" is federally recognized. North Carolina law confers no parallel authority on the Commission to conduct or supervise tribal constitutional elections.
Conclusion: the Commission cannot serve as a quasi-judicial forum. The Commission has no authority to resolve the dispute between the new tribal council and LRDA. The opinion stops just short of saying the Commission's resolution was void, but the implication runs throughout: the Commission acted outside its statutory power when it adopted the resolution acknowledging the new constitution and tribal council.
Currency note
This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Lumbee Tribe's governance history has continued to evolve substantially since 1995. The Lumbee Tribe of North Carolina ratified a constitution in 2001 and operates under that document today. Federal recognition has been the subject of repeated congressional bills (the Lumbee Recognition Act). The roles of LRDA, the Lumbee Tribal Government, and the Commission of Indian Affairs have shifted. Anyone working in this area should consult current Lumbee constitutional and statutory materials.
Background and statutory framework
The Lumbee community is the largest tribal community east of the Mississippi River and one of the largest in the United States. Centered in Robeson County, the community has a complex history with both state and federal recognition. The General Assembly recognized the "Lumbee Tribe of North Carolina" under the 1953 statute now codified as § 71A-3. Federal recognition has been pursued in fits and starts since the 1880s; the federal government has periodically extended limited recognition (the Lumbee Act of 1956 recognized the tribe but specifically barred BIA services).
Without a written constitution between 1953 and the mid-1990s, internal governance was informal. LRDA, organized in 1968, became the de facto leadership organization, holding the membership roll and acting as the interface with state and federal authorities. By 1995, LRDA's roll had over 45,000 members.
The 1994 constitutional movement reflected a long-running internal debate over whether LRDA was the right vehicle for tribal governance. Critics argued LRDA was a private nonprofit with no governmental legitimacy. The constitutional drafters tried to establish a formal tribal government with elected officials, judicial bodies, and a clear separation from LRDA. The "Lumbee Tribe of Cheraw Indians" name reflected a historical claim that the Lumbee descend from the Cheraw and related groups.
The Commission's 1994 resolution recognizing the new tribal council was politically significant but legally vulnerable. The opinion exposes the legal vulnerability without addressing the political merits. By 1995, the Commission was being asked to serve as a quasi-judicial forum, picking winners between the new tribal council and LRDA. The AG firmly closed that role.
The opinion's reliance on federal precedents (Williams v. Lee, Rosebud Sioux, Goodface) is important. Those cases stand for the proposition that the federal courts have stayed out of tribal governance disputes even when the tribes were federally recognized. The implication: a state administrative commission, with no governance role over federally unrecognized tribes, has even less authority than the federal courts. The opinion's deference to tribal self-determination is, in this context, a refusal to use state administrative power to favor one faction over another.
The Lumbee constitutional and governance picture has since evolved substantially. The Lumbee Tribe ratified a constitution in 2001 and operates under it. LRDA continues to exist as a separate non-profit. Federal recognition remains an active subject of federal legislation. The 1995 opinion is a snapshot from one moment in a long, contested history.
Common questions
What was the practical effect of the AG's opinion on the Commission's 1994 resolution?
The opinion did not formally rescind the resolution but undercut its authority. The AG signaled that the Commission acted ultra vires. Subsequent federal agency decisions about whether to direct Lumbee resources through LRDA or the new tribal council would not have been bound by an ultra vires state administrative resolution.
Did the General Assembly ever clarify the Commission's role?
The opinion does not say. § 143B-406 has been amended multiple times since 1995. Whether any amendment expanded the Commission's role in tribal governance recognition would need to be researched against current statutory text and session law history.
Did this opinion address the Eastern Band of Cherokee Indians?
No. The Eastern Band is a federally recognized tribe with its own treaty-based government, BIA-approved constitution, and full tribal sovereignty. None of the issues in the Lumbee dispute applied to the Eastern Band. The Commission's relationship to the Eastern Band is fundamentally different from its relationship to state-recognized-only groups like the Lumbee.
What other state-recognized tribes does North Carolina have?
The Commission's enabling statute reaches several state-recognized groups, including the Coharie, the Haliwa-Saponi, the Meherrin, the Occaneechi Band of the Saponi Nation, the Sappony, and the Waccamaw Siouan. Each has its own internal governance structure and its own relationship with the Commission. The opinion is specific to the Lumbee situation but its general principles apply across all state-recognized tribes.
Could a tribal member sue the Commission to vacate its 1994 resolution?
A judicial review proceeding under the APA could have been brought, arguing the Commission exceeded its statutory authority. Standing might have been a threshold issue (only a person with a particularized injury could sue). LRDA, which the resolution effectively displaced from administering federal funds, would have had standing. The opinion does not say whether such a suit was filed.
Has the Lumbee Tribe achieved federal recognition?
As of this opinion's authoring (2026), federal recognition has been pursued through repeated congressional bills (the Lumbee Recognition Act) and through the Department of the Interior's federal acknowledgment process. The status has been contested. Anyone asking this question today should check the current federal recognition status as of the moment.
Source
- Landing page: https://ncdoj.gov/opinions/commission-of-indian-affairs/
Citations
- N.C. Gen. Stat. § 71A-3
- N.C. Gen. Stat. § 143B-404
- N.C. Gen. Stat. § 143B-406
- N.C. Gen. Stat. § 143B-407
- 25 C.F.R. § 83.1
- Williams v. Lee, 358 U.S. 217 (1959)
- Golden Hill Paugussett Tribe of Indians v. Town of Southbury, 231 Conn. 563, 651 A.2d 1246 (1995)
- Rosebud Sioux Tribe of South Dakota v. Driving Hawk, 534 F.2d 98 (8th Cir. 1976)
- Goodface v. Grassrope, 708 F.2d 335 (8th Cir. 1983)
Original opinion text
N.C.G.S. 143B-406 provides in pertinent part that the North Carolina Commission of Indian Affairs has the duty "to study the existing status of recognition of all Indian groups, tribes and communities presently existing in the State of North Carolina; to establish appropriate procedures to provide for legal recognition by the State of presently unrecognized groups; to provide for official State recognition by the Commission of such groups; and to initiate procedures for their recognition by the federal government." (Emphasis added)
N.C.G.S. 143B-407 (a) provides that the Commission shall consist of "eighteen representatives of the Indian community. These Indian members shall be selected by tribal or community consent from the Indian groups that are recognized by the State of North Carolina … ."
N.C.G.S. 143B-407(b) further provides that "(m)embers representing Indian tribes and groups shall be elected by the tribe or group concerned. Vacancies shall be filled by the tribal council or governing body concerned."
Administrative agencies, such as this Commission, are creatures of the General Assembly. Their power derives from the General Statutes. They have only such power as is conferred upon them by law. 1 Strong's N.C. Index 4, Administrative Law and Procedure 1 (1990); 1 Am Jur 2d, Administrative Law §70 (1962).
The General Assembly has conferred no authority on the Commission to select the individuals to represent a State recognized tribe on the Commission. The various tribes and organizations select the individuals they wish to represent them. The Commission seats the people that have been selected by the tribes or organizations.
The Lumbee Regional Development Association (LRDA) is a private, non-profit corporation that has assumed a leadership role in the community through its efforts to secure federal recognition and procure federal resources for the benefit of the Lumbee Tribe. Accordingly, LRDA has, for a number of years, been named in the Commission by-laws as the organization to administer election of Lumbee members to the Commission in accordance with election procedures on file with the Commission. Over its 25 year existence, LRDA has developed an extensive roll which has been generally recognized as the Lumbee tribal membership roll containing over 45,000 members.
Although the "Lumbee Tribe of North Carolina" has been statutorily recognized by the State of North Carolina since at least 1953, N.C.G.S. 71A-3, for the last forty-two years, the Lumbee Tribe has had no written constitution or any formal government structure of which we are aware. In 1994 a group of Lumbee indians promulgated a constitution and conducted an election to adopt that constitution as the "Lumbee Tribe of Cheraw Indians." A part of that constitution provided for the selection of a new tribal council as their governing body. That tribal council sought Commission recognition as the tribal government of the "Lumbee Tribe."
Indian tribes have historically been recognized as sovereign entities by the federal government. A tribe stands outside the federal government structure and deals with the federal government as a separate political entity. Golden Hill Paugussett Tribe of Indians v. Town of Southbury, 231 Conn 563, 651 A.2d 1246 (1995).
Tribal governments have existed since time immemorial and have always taken shape in response to the needs and desires of the group. Determining membership in a tribe, that is establishing who has the fundamental rights and obligations of citizenship – is a basic function of any government. Because membership requirements and enrollment procedures are so fundamental, they act as pressure points in the political life of a tribe. In the election held to approve the constitution of the "Lumbee Tribe of Cheraw Indians," no tribal membership roll was used. See, Basic Indian Law, Falmouth Institute (1994).
Indian tribes have the right to make their own rules and to be governed by them. Williams v. Lee, 358 U.S. 217, (1959). To the extent that a state attempts to assert jurisdiction over Indians belonging to federally recognized tribes and their transactions and property, state jurisdiction has generally been denied unless expressly permitted by Congress.
We must note at this point that neither the "Lumbee Tribe of North Carolina" nor the "Lumbee Tribe of Cheraw Indians" is a federally recognized tribe.
The federal court system has been very reluctant to interfere or intervene in tribal matters. In Rosebud Sioux Tribe of South Dakota v. Ed Driving Hawk, 534 F.2d 98, 100 (8th Cir. 1976), the court said:
The federal courts should infringe as little as possible upon the authority of an Indian tribe to govern itself. … it is incumbent upon each Indian tribe to establish a system whereby election contests can be fairly tried and fairly resolved in compliance with the guarantees of equal protection and due process of law. [Emphasis supplied] The federal courts should not be called upon to supervise and decide a multitude of issues raised in tribal elections.
Federal courts are uniformly holding that tribes have self-determination at their disposal and the federal courts will not get involved in tribal election disputes unless it is absolutely necessary.
Goodface v Grassrope, 708 F.2d 335 (8th Cir., 1983) concerned a dispute over a tribal election held by the Lower Brule Sioux Tribe. The Court stated: It is essential that the parties seek a tribal remedy for, as previously noted, substantial doubt exists that federal courts can intervene under any circumstances to determine the rights of the contestants in a tribal election dispute. 704 Fed. 2d at 339.
With federally recognized tribes, the Secretary of the Bureau of Indian Affairs can authorize the calling of an election on adoption of a constitution and by-laws upon request by the tribal governing body or an authorized representative committee or upon petition filed by at least one-third of the adult members of the tribe. 25 CFR 83.1 et seq. This is the method by which Indian tribes organize themselves under federal law. North Carolina law confers no similar authority on the Commission.
In the case of the "Lumbee Tribe of North Carolina," it is not clear that any tribal government has been established in accordance with constitutional guarantees of equal protection of the laws with due process afforded to all tribal members.
The "Lumbee Tribe of Cheraw Indians" has not been statutorily recognized as a tribe or group by the General Assembly of North Carolina nor has it sought such recognition through established procedures of the Commission. Instead, its tribal council requested, and the Commission adopted the resolution attached as Exhibit 1 which purports to acknowledge its constitution and tribal council as the government of the "Lumbee Tribe."
We find nothing in North Carolina statutes nor in any recorded court decisions which would confer authority on the Commission to acknowledge the new constitutional document as the governmental structure of the "Lumbee Tribe" nor the tribal council as representatives duly authorized to conduct tribal relations for all governmental purposes including the conduct of all relations with the Commission.
We are informed that the resolution is being furnished by the tribal council to federal agencies as part of an effort to displace LRDA as recipient manager of federal resources for the benefit of the Lumbee people, thus creating a present dispute between the tribal council and LRDA. (See Exhibit 2.)
We find no authority in law for the Commission to serve as a quasi-judicial forum for the determination of the present dispute between the new tribal council and LRDA.
MICHAEL F. EASLEY
Attorney General
Andrew A. Vanore, Jr.
Chief Deputy Attorney General
T. Buie Costen
Special Deputy Attorney General
D. David Steinbock
Assistant Attorney General