NC NC AG Advisory Opinion (1998-10-15) 1998-10-15

Can a NC county officially 'recognize' a Native American tribe, and if so, does the county's recognition force the state to recognize the tribe too?

Short answer: No on official state recognition; yes on supportive resolutions. Orange County had adopted a 1995 resolution recognizing the Occaneechi Band of the Saponi Nation as a Native American tribe indigenous to Orange County and supporting their request for state and federal recognition. The AG concluded that only the NC Commission of Indian Affairs (housed in the Department of Administration) has statutory authority under G.S. § 143B-406 to grant official state tribal recognition. Counties may pass resolutions expressing recognition or support, but those resolutions have no binding effect on the Commission. The Commission may consider such a resolution as one factor under 1 NCAC 15.0209(b)(1) and give it whatever weight it deems appropriate. The Orange County resolution did not purport to grant state recognition; it supported the tribe's separate request to the Commission, which was the legally correct framing.

Disclaimer: This is an official North Carolina Attorney General advisory opinion. AG opinions are persuasive authority but not binding precedent like a court ruling. This summary is for informational purposes only and is not legal advice. Consult a licensed North Carolina attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

Plain-English summary

The Occaneechi Band of the Saponi Nation, a Native American group indigenous to the Piedmont region, was working through the formal state-recognition process in the mid-1990s. As part of that effort, supporters obtained a December 4, 1995 resolution from the Orange County Board of Commissioners. The resolution recognized "the Occaneechi Band of the Saponi Nation as a Native American tribe indigenous to Orange County" and supported their pending requests for state and federal recognition.

The NC Commission of Indian Affairs, through its administrative parent the Department of Administration, asked the AG whether local governments had any authority to grant tribal recognition and whether such resolutions affected the Commission's process. Senior Deputy AG Reginald L. Watkins, Special Deputy AG Roy A. Giles, Jr., and Assistant AG D. David Steinbock answered with a clean distinction.

Official state tribal recognition is statutorily reserved to the Commission of Indian Affairs. G.S. § 143B-406 vests the Commission with 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." The Commission had promulgated administrative procedures at 1 NCAC 15 § .0200 et seq. that any group seeking recognition had to follow.

The AG was emphatic that this was a Commission-exclusive process. "Only the North Carolina State Commission of Indian Affairs has the statutory responsibility and duty to establish procedures for legal recognition by the State of presently unrecognized Indian groups and to provide for official State recognition by the Commission of such groups." No local unit of government had statutory authority to grant tribal recognition that would bind the state.

That said, the AG drew a careful line between official recognition and supportive resolutions. As a matter of local policy, a county could adopt a resolution recognizing an Indian group as a tribe. Such a resolution would have no binding impact on the Commission's process. But under the Commission's own procedures (1 NCAC 15.0209(b)(1)), a local resolution could be considered as part of the Commission's evaluation and given whatever weight the Commission deemed appropriate. So the Orange County resolution was permissible as a statement of local recognition and supportive evidence, but not as a parallel route to state recognition.

The Occaneechi Band ultimately received state recognition from the Commission in 2002, four years after this opinion.

Currency note

This opinion was issued in 1998. 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 Commission's recognition procedures have been refined since 1998, and several tribes (including the Occaneechi Band, recognized in 2002) have completed the formal process.

Background and statutory framework

State-recognized tribes versus federally-recognized tribes. Federal recognition is a separate process administered by the U.S. Department of the Interior's Bureau of Indian Affairs. NC has one federally-recognized tribe (the Eastern Band of Cherokee Indians) and several state-recognized tribes (Lumbee, Coharie, Sappony, Waccamaw Siouan, Meherrin, Haliwa-Saponi, and Occaneechi Band post-2002). State recognition carries certain benefits under NC law (representation on the Commission, access to state programs) but is distinct from federal recognition.

The Commission of Indian Affairs. Established under Chapter 143B, the Commission is the state agency responsible for Native American affairs in NC. Its membership combines tribal representatives and state officials. Its duties include facilitating government-to-government relations, administering programs benefiting NC Indians, and managing the state-recognition process for unrecognized groups.

The 1 NCAC 15 process. The Commission's administrative procedures for state recognition required documentary evidence of continuous tribal existence, lineage, and community organization. The process was deliberate and could span years. Factors considered under 1 NCAC 15.0209 included community documentation, expert opinions, historical records, and (under (b)(1)) supportive resolutions from local governments or other bodies.

Why exclusive Commission authority makes sense. Tribal recognition affects more than the locality where the tribe is concentrated. It implicates state programs, federal interactions, intertribal relations, and historical claims. A patchwork of county-by-county "recognitions" would fragment the state's posture and create inconsistent standards. Centralizing the process in the Commission ensures uniform criteria and a single point of authority.

The Orange County resolution's actual language. The opinion noted that Orange County's 1995 resolution did not purport to grant state recognition. It recognized the Occaneechi Band as a Native American tribe indigenous to Orange County (a statement of local fact) and supported their request for state and federal recognition (a supportive statement to other governments). That framing was within local authority.

The line the AG drew. A county may state, by resolution, what it observes and what it supports. A county may not, by resolution, do the legal work the legislature has assigned to the Commission. Other counties or local bodies considering similar resolutions should be careful to use supportive language rather than language that purports to confer recognition.

Common questions

Q: Can a NC city pass a resolution recognizing a tribe?

A: Yes, as a supportive resolution. The same analysis applies: no binding effect on state recognition, but possible weight in the Commission's process.

Q: What is the practical effect of a county resolution on Commission proceedings?

A: The Commission can consider it under 1 NCAC 15.0209(b)(1). Weight depends on the Commission's evaluation of the overall recognition package.

Q: Does this opinion limit a tribe's ability to operate as a community group?

A: No. The opinion is about official state recognition, not about a tribe's right to exist, organize, or engage in cultural and civic activities. Tribes operate without state recognition all the time.

Q: Can a county provide programs or services tailored to a Native American community without state recognition of the tribe?

A: The opinion does not directly address that. Counties have general authority to provide services to constituents. A program targeted by ethnicity or ancestry would raise its own legal questions, but identifying a local Native American community is distinct from granting tribal recognition.

Q: Does this analysis change if a county hosts a federally-recognized tribe?

A: The opinion was about state recognition. The Eastern Band of Cherokee (federally recognized) has a separate legal status; counties interact with the Band through different frameworks.

Q: Are county resolutions still useful for tribes pursuing recognition?

A: Yes. They serve as evidence of community presence and local acknowledgment. The Commission's process explicitly allows their consideration.

Citations from the opinion

N.C. Gen. Stat. § 143B-406
Article 9, Part 15, Chapter 143B
1 NCAC 15 § .0200 et seq.
1 NCAC 15.0209(b)(1)

Source

Landing page: https://ncdoj.gov/opinions/recognition-of-indian-tribes-by-local-governments-in-north-carolina/

Original opinion text

October 15, 1998

Mr. R. Glen Peterson General Counsel North Carolina Department of Administration 116 West Jones Street Raleigh, North Carolina 27603

Re: Advisory Opinion; Recognition of Indian Tribes by Local Governments in North Carolina; N.C.G.S. 143B-406

Dear Glen:

On December 4, 1995, the Orange County Board of Commissioners adopted a resolution which recognized "the Occaneechi Band of the Saponi Nation as a Native American tribe indigenous to Orange County," and which supported "the Occaneechi Band of the Saponi Nation in their request for State and Federal recognition." See Attachment A. The resolution adopted by Orange County did not purport to grant State recognition as an Indian tribe to the group. It merely supported the request of that group for State and Federal recognition.

The North Carolina Commission of Indian Affairs ("Commission"), through the General Counsel for the Department of Administration, has requested an opinion from the Attorney General as to whether units of local government in North Carolina have the authority to "recognize" Indian tribes located in the State. If so, how does such recognition impact official State recognition by the Commission? For the reasons hereinafter stated, it is the opinion of this office that local units of government do not have the authority to grant official recognition to an Indian group as a State recognized tribe. However, as Orange County did in 1995, counties may adopt a resolution recognizing an Indian group as a tribe and urging the State to grant such recognition.

The Commission was established as an agency of the State of North Carolina within the Department of Administration. See Article 9, Part 15, Chapter 143B of the North Carolina General Statutes. N.C.G.S. 143B-406 provides in pertinent part as follows:

It shall be the duty of the Commission … 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.

To comply with these directives, the Commission has established recognition procedures which have been made a part of the North Carolina Administrative Code. See 1 NCAC 15, § .0200, et seq. These procedures have been utilized by the Commission in the recognition efforts undertaken by various Indian groups, including the self-styled "Occaneechi Band of the Saponi Nation," which itself utilized these rules in a formal request for recognition.

Only the North Carolina State Commission of Indian Affairs has the statutory responsibility and duty to establish procedures for legal recognition by the State of presently unrecognized Indian groups and to provide for official State recognition by the Commission of such groups. N.C.G.S. 143B-406. There is no statutory authority for any local unit of government to grant official recognition to an Indian group as a State recognized Indian tribe.

A local unit of government, as a matter of policy, could adopt a resolution recognizing an Indian group as a tribe. Such action would have no binding impact on the Commission's statutory duties or its process for recognition. Under the criteria for recognition as an Indian tribe currently adopted by the Commission, such a resolution, if presented by an Indian group in support of a request for recognition, could be considered by the Commission and afforded such weight as it deems appropriate. See 1 NCAC 15.0209(b)(1).

In summary, actions by local units of government purporting to "recognize" Indian groups as Indian tribes have no binding impact on the Commission with regard to its statutory duties or its process for official State recognition of Indian tribes.

signed by:

Reginald L. Watkins, Senior Deputy Attorney General

Roy A. Giles, Jr., Special Deputy Attorney General

D. David Steinbock, Assistant Attorney General