Can the elected mayor of a North Carolina town also serve as Tribal Chairman of the Lumbee Indian Tribe, or does North Carolina's dual office holding rule force the mayor to give up one of the positions?

Plain-English summary

Representative Ronnie Sutton asked whether Milton R. Hunt, the elected mayor of Pembroke, could also serve as Tribal Chairman of the Lumbee Indian Tribe. Hunt had been elected chairman through an election conducted by the Lumbee Self-Determination Commission under a 1999 Robeson County court order. The AG concluded that North Carolina's dual office holding rules did not prevent him from taking the tribal position.

The opinion quotes Article VI, Section 9 of the North Carolina Constitution, which restricts concurrent holding of specified elective and appointive offices. It explains that the question turns on whether the second position is an elective or appointive office to which part of the sovereignty of North Carolina or the national government attaches. Pembroke's mayor was such a state office. The AG said the Lumbee Tribal Chairman exercised no sovereign power of North Carolina or the United States.

The 1999 court order recognized the Lumbee Tribe's and its members' "inherent and sovereign right of self-determination" to choose their form of government. The opinion says the resulting tribal offices were chosen by the Lumbee people and were not mandated by state or federal law. That was the basis for its answer concerning Hunt's two positions.

Currency note

This opinion was issued in 2000 and addresses the circumstances and offices described then. Check current law and the current status of any position before using its analysis for a present-day office-holding question.

What this means for you

If you hold a North Carolina elective office: The opinion shows how the AG analyzed one proposed combination with a Lumbee tribal position. It identifies whether state or national sovereignty attaches to the second position as the relevant office test. It does not decide every combination of state, federal, and tribal positions.

If you serve in Lumbee tribal government: The AG concluded that the particular Tribal Chairman position created through the process described in the 1999 court order was outside North Carolina's dual office holding prohibitions in Hunt's case.

Common questions

Why was Pembroke's mayor subject to the dual office rules?
The AG called the mayor an elective office exercising North Carolina's sovereignty. It then examined whether the second position also counted as a covered office.

Why did the AG reach a different conclusion for Lumbee Tribal Chairman?
The court order left the form of Lumbee self-government to the Lumbee people. The AG said the resulting chairman position exercised no sovereign power of North Carolina or the United States.

Did the opinion decide current federal recognition status?
No. It described the commission's work as occurring pending federal recognition at the time. It offers no account of later recognition efforts or their outcome.

Does the conclusion automatically cover another tribe's officers?
No. The request and conclusion concern Hunt's service as Pembroke mayor and Lumbee Tribal Chairman under the governance process described in this opinion.

Citations

• N.C. Constitution, Article VI, Section 9: restrictions on concurrent elective and appointive offices quoted in the opinion.
• G.S. §§ 128-1, 128-1.1 and 128-1.2: statutes implementing that rule.
• Lumbee Tribe v. LRDA, Inc., No. 95 CVS 2047 (Robeson County April 15, 1999): court order quoted concerning Lumbee self-determination and the commission.
• State ex rel. Wooten v. Smith, 145 N.C. 476, 59 S.E. 649 (1907): test for whether state or national sovereignty attaches to a position.

Source

• Landing page: https://ncdoj.gov/opinions/dual-office-holding/

Original opinion text

Re: Advisory Opinion; Dual Office Holding; N.C. CONST. Art. VI, § 9 and N.C. GEN. STAT. §§ 128-1, 128-1.1 and 128-1.2

Dear Rep. Sutton:

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

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

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

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

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

These rules are pertinent, however, only if an elected official accepts, or considers accepting, a second elective or appointive office. The test of whether a position is an elective or appointive office is whether part of the sovereignty of the State or national government attaches to the position. See, e.g., State ex rel. Wooten v. Smith, 145 N.C. 476, 59 S.E. 649 (1907). The position of mayor of the Town of Pembroke is clearly an elective office exercising the sovereignity of the State. Conversely, the position of Tribal Chairman exercises no sovereign powers of either the State of North Carolina or of the United States. Thus, we conclude that dual office holding prohibitions do not apply to prevent Mr. Hunt from assuming the position of Tribal Chairman of the system of governance chosen by the Lumbee people.

Signed by:

Ann Reed
Senior Deputy Attorney General

Susan K. Nichols
Special Deputy Attorney General