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H:\SKAROREH NATION\NOTICE OF
PETITION 2.0.doc
NOTICE OF PETITION
FOR THE SECRETARY
OF THE U.S. DEPARTMENT OF THE
INTERIOR
IN THE MATTER OF
THE
SIOUAN INDIANS OF LUMBER
RIVER
___________________________________
Application: Request to take
land in Columbus County, North
Carolina into trust for the
Siouan Indian Community of
Lumber River; declare such land
a reservation; organize
the Siouan Indian Community of
Lumber River under the
Indian Reorganization Act; and
formally approve the
Tribe’s Constitution and
Bylaws.
Submitted to: Mr. Carl J.
Artman, Assistant Secretary, Indian Affairs
U.S. Department of the
Interior
Bureau of Indian
Affairs
1849 C Street, NW
Washington, DC
20240
Mr. Franklin Keel, Regional
Director
U.S. Department of
Interior
Bureau of Indian
Affairs
Eastern Agency
MS: 260-VASQ
Arlington, VA 22203
Phone: 703-235-2571
Fax: 703-235-8610
Submitted by: Siouan Indian
Community of Lumber River
By, Thomas W. Fredericks,
Esq.
Fredericks and Peebles,
LLP
1900 Plaza Drive
Louisville, CO
80027
Telephone: (303)
673-9600
Fax: (303) 673-9155 or (303)
673-9839
2
SUMMARY OF PETITION
This Petition sets forth the
Claims of the Siouan Indian Community of Lumber River
Specifically, this Petition
requests the Secretary of the Interior (“Secretary”)
to:
(1) Take land into trust for the
Siouan Indian Community of Lumber River, as
permitted by Title 25, Code of
Federal Regulations, Part 151 and by 25
U.S.C. § 4651
(2) Request that the Secretary
declare said land a reservation pursuant to 25
U.S.C. § 467 – New Indian
Reservations.2
(3) Organize the Siouan Indian
Community of Lumber River residing on the
reservation under the IRA
pursuant to 25 U.S.C. § 479.3
(4) Formally approve the Tribe’s
Constitution and Bylaws4.
I. INTRODUCTION
The key facts and factors that
support the Claims in this Petition are as follows:
A. The Siouan Indian Community
of the Lumber River (herein Nation) request
that the United States take the
Nation’s land in trust for the twenty-two (22)
individuals
(commonly referred to as the
“Original 22”) that were recognized by the Bureau of
Indian Affairs (BIA) in 1938
pursuant to 25 U.S.C. § 465 and Part 151 of 25 CFR.
Today there is only one
remaining member of the “Original 22”, Mr. Paul Brooks,
who,
as a half-blooded Indian, meets
the definitional standard for “Indians” under 25 U.S.C.
§
4795
B. The Nation formally requests
to have such lands declared an Indian
Reservation pursuant to 25
U.S.C. § 467.
C. Third, the Nation requests
assistance from the Department of Interior to
organize as an Indian tribe
under the Indian Reorganization Act. Members of the
Nation
have a right to formally
organize as an Indian tribe pursuant to the Indian
Reorganization
Act of 1934, as amended, 25
U.S.C. § 461 et seq.
1 “The Secretary of the Interior
is hereby authorized, in his discretion, to acquire . . . any
interest in lands . .
.within or without existing
reservations . . . for the purpose of providing land for
Indians.”
2 “The Secretary of the Interior
is hereby authorized to proclaim new Indian reservations on lands
acquired
pursuant to any authority
conferred by [the IRA].”
3 “The term "tribe" wherever
used in this Act shall be construed to refer to any Indian tribe,
organized band,
pueblo, or the Indians residing
on one reservation.”) and 25 U.S.C. § 476(a)(“Any Indian tribe
shall have
the right to organize for its
common welfare, and may adopt an appropriate constitution and
bylaws. . . [.]”
4 25 U.S.C. § 476
5 (“The term "Indian" as used in
[the IRA] . . . shall further include all other persons of one-half
or more
Indian blood.”) (all emphases
added).
3
D. Finally, the Nation wishes to
obtain Bureau of Indian Affair’s approval of
their Tribal Constitution and
Bylaws.
The Nation has retained our law
firm, Fredericks, & Peebles, LLP, to provide
necessary legal assistance to
the Nation’s goals.
II. BACKGROUND
A. History of the Siouan Indians
of Lumber River (1600s-1800s)
1. 1600s
Ethnohistorical research shows
that the present-day Siouan Indians of Lumber
River are composed of the
modern-day descendants of the Tuscarora Indians, who
were
the largest group of Indians
occupying the Virginia-North Carolina coastal plain cut
by
the major rivers of the Roanoke,
Tar and Neuse during the early 1600’s. See Douglas W.
Boyce, Iroquoian Tribes of the
Virginia-North Carolina Coastal Plain, in Handbook of
North American Indians, Vol. 15
(William C. Surtevant & Bruce G. Trigger, eds.,
Smithsonian Institution 1978)
282. Several thousand Tuscaroras were said to be living
in
the colonies of Virginia and
North Carolina when the first Europeans arrived in the
late
1650’s. During this time,
colonial settlements were established in North Carolina
along
the Albemarle Sound. By the late
1660’s, colonists and the Tuscarora were engaged in
raids against one another. Id.,
citing Anonymous, The Indians of Southern Virginia,
1650-1711: Depositions in the
Virginia and North Carolina Boundary Case, 7(4)
Virginia
Magazine of History and
Biography 346, 348 (1900). Relations between the
Tuscarora
and the colonists became ever
more tense as the Tuscarora saw both their land taken
without proper compensation and
their people captured for slaves and cheated by
traders.
2. 1700s
In 1711, Christoph von
Graffenried, leader of large numbers of Swiss and
Palatine
settlers, and John Lawson, a
provincial surveyor-general, made an unannounced
expedition through Tuscarora
territory. See David Landy, Tuscarora Among the
Iroquois, in Handbook of North
American Indians, Vol. 15 (William C. Surtevant &
Bruce G. Trigger, eds.,
Smithsonian Institution 1978) 518 citing John Lawson, History
of
North Carolina [1714] (Frances
L. Harriss, ed., Garrett and Massie 2d ed. 1952).
Graffenried and Lawson were
subsequently captured by men loyal to the Tuscarora
leader, Hancock (also known as
Hencock), taken to the principal town of Catechna, and
tried before a council of
chiefs. Graffenried persuaded his captors to free him by
forming
a mutual non-aggression pact
with them, but Lawson was condemned to death and
executed. Soon after, the
Tuscarora, along with several allied Indian tribes— the
Coree,
Pamlico, Mattamuskeet, Bear
River, and Machapunga—struck successfully at settlers
located along the Trent and
Pamlico rivers. Landy supra citing J.N.B. Hewitt,
Tuscarora
in Handbook of American Indians
North of Mexico, Vol. 2 842, 843 (Frederick W.
Hodge, ed., 1910). Later, these
Indian groups became angered upon realizing that
Lawson had sold to them land for
which he did not have title and subsequently attacked
Graffenreid’s
settlers.
4
Believing that he lacked the
manpower and the resources to mobilize sufficiently,
Governor Edward Hyde of North
Carolina sought aid from Virginia. However, Virginia,
which was then itself involved
in border disputes with neighboring North Carolina,
sent
little assistance. Hyde also
appealed to South Carolina, which sent Colonel John
Barnwell with a small number of
Whites and about 500 Indians. Barnwell defeated the
Tuscarora and exacted a peace
agreement in 1711. Soon afterward, angered at
receiving
neither pay, supplies or
adulation from the North Carolinians, as had been
promised,
Barnwell violated the peace
agreement by killing hundreds of Tuscaroras and
selling
many into slavery. In 1712, the
outraged Tuscarora struck back at several settlements
along the Neuse, Pamlico and
Trent rivers but, after nearly two years of fighting,
were
put down in 1713 by Colonel
James Moore of South Carolina with about 1,000 Indians
and 33 Whites.
The Tuscarora suffered extreme
losses through death, the capture of more than
950 men, women and children and
been capable of mustering not more than 1,200
fighting men. Landy supra citing
Hugh T. Lefler and William S. Powell, Colonial North
Carolina: A History 78 (1973)
John R. Swanton, The Indians of the Southeastern
United
States, Bureau of American
Ethnology Bulletin 137199 (1946), John R. Swanton, The
Indian Tribes of North America,
Bureau of American Ethnology Bulletin No. 145
87(1952). Starved into
submission, their power broken, the Tuscarora experienced
the
end of hostilities. Some were
forced onto a small reservation in North Carolina while
the
rest fled north, with some
settling in Virginia where a Tuscarora chief named Tom
Blunt,
or Blount, was now the
English-recognized Tuscarora leader. Over the next ninety
years,
North Carolina Tuscarora
migrated in clusters of families and small bands into
Virginia,
Pennsylvania, and ultimately to
the homeland of their linguistic and cultural relatives,
the
Iroquois in New York. In 1722,
the League of the Iroquois formally admitted the
Tuscarora as its sixth member
nation. The Tuscarora settled in a village located
between
the Oneida and Onondaga villages
and also on the Susquehanna River.
In 1797, under the Treaty of Big
Tree, the Seneca Indians in New York sold much
of their land to Robert Morris,
who subsequently sold his interest in it to the
Holland
Land Company. Although Robert
Morris had reserved for the Tuscarora one square mile
to be located near the present
Lewiston where they had built a village, this provision
was
not included in the Treaty.
Shortly thereafter, the Tuscarora took up the matter
with
Thomas Morris, who, on behalf of
Robert Morris, granted the square mile, which was
later confirmed by the Holland
Land Company. In 1798, the Indians requested and
received another square mile,
and in 1799 this two-square mile reservation was laid
out
so that it included the
Tuscarora village. In 1808, the Seneca executed a deed giving
a
square mile to the Tuscarora,
stating that this tract had been reserved from the sale
of
Seneca lands in 1797. Thus, the
original Tuscarora Reservation in New York consisted
of three square
miles.
3. 1800s
In 1801, a delegation of
Tuscarora traveled from New York to North Carolina to
try to obtain payment for the
Tuscarora lands there and in the following year the
North
Carolina legislature passed an
act authorizing the lease of these lands. For these
leases,
the Tuscarora received $13,722,
which they used to purchase 4,249 acres in New York
5
from the Holland Land Company in
1804. Landy supra at 521 citing E. Elias Johnson,
Legends, Traditions, and Laws of
the Iroquois, or Six Nations, and the History of the
Tuscarora Indians 77 (1881);
Hewitt (1910) supra at 848; Frank R. Johnson, The
Tuscaroras: Mythology, Medicine,
Culture, Vol. 2 at 218(1967-1968), ; William
Chazanof, Joseph Elliott and the
Holland Land Company, 74-75 (1970). Thus, the
Tuscarora’s total reservation in
New York came to comprise 6,249 acres or just under 10
square miles.
At the same time that the
Tuscarora delegation was in North Carolina arranging
for this payment, some
Tuscaroras living there decided to move north and join
their
brethren in New York. About 10
years later, after the War of 1812, the British burned
the
Tuscarora village in North
Carolina. The matter of the land in North Carolina
continued
to be one of concern to the New
York Tuscarora. In 1828, the North Carolina
legislature
authorized the sale of these
lands. The transaction was completed in 1831with the
Tuscaroras receiving $3,250 for
conveying these lands by deed to the State of North
Carolina. The lands issue came
up again after the leases expired in 1916, but in 1956
all
claims were determined to have
been settled. Landy supra at 521 citing Johnson supra
at
227; Frank H. Severance, Our
Neighbors the Tuscaroras, 22 Buffalo Historical
Society
Publication 330-331 (1918). All
land transactions involving the sale of Indian lands by
a
state would be voidable to the
extent that they violated the nonintercouse act of 1790,
25
U.S.C. § 177. See Federal Power
Commission v.Tuscarora Indian Nation, U.S. Dist. Ct.
1960, 80 S.Ct. 543, 362 U.S.
99.
B. Passage of the
IRA
In 1934, Congress enacted the
seminal Indian Reorganization Act (IRA), 25
U.S.C. § 461 et seq.. As
preeminent legal scholar Felix Cohen noted in his
treatise
Handbook of Federal Indian Law
(1982 Ed.) (“Cohen”), the period of the “late 1920s
and
early 1930s marked a change in
Indian policy and departure from [earlier]
assimilationist
policies [of the federal
government].” Cohen at 144. To that end, the IRA was
enacted
in order “to encourage economic
development, self-determination, cultural plurality,
and
the revival of tribalism.” Id.
at 147.
Four significant IRA provisions
are codified at 25 U.S.C. §§ 465, 467, 476(a) and
479 respectively and they
provide in relevant part as follows (all emphases added
unless
otherwise noted) :
25 U.S.C. § 465 - Acquisition of
lands, water rights or surface
rights; appropriation; title to
lands; tax exemption:
The Secretary of the Interior is
hereby authorized, in his
discretion, to acquire through
purchase, relinquishment,
gift, exchange, or assignment,
any interest in lands, water
rights, or surface rights to
lands, within or without existing
reservations, including trust or
otherwise restricted
allotments whether the allottee
be living or deceased, for
the purpose of providing land
for Indians.
6
* * *
Title to any lands or rights
acquired pursuant to this Act . . .
shall be taken in the name of
the United States in trust for
the Indian tribe or individual
Indian for which the land is
acquired, and such lands or
rights shall be exempt from
State and local
taxation.
25 U.S.C. § 467 – New Indian
Reservations:
The Secretary of the Interior is
hereby authorized to
proclaim new Indian reservations
on lands acquired
pursuant to any authority
conferred by this Act, or to add
such lands to existing
reservations: Provided, That lands
added to existing reservations
shall be designated for the
exclusive use of Indians
entitled by enrollment or by tribal
membership to residence at such
reservations.
25 U.S.C. § 476(a):
Any Indian tribe shall have the
right to organize for its
common welfare, and may adopt an
appropriate
constitution and bylaws. . .
[.]
25 U.S.C. § 479 –
Definitions:
The term "Indian" as used in
[the IRA] shall include all
persons of Indian descent who
are members of any
recognized Indian tribe now
under Federal jurisdiction, and
all persons who are descendants
of such members who
were, on June 1, 1934, residing
within the present
boundaries of any Indian
reservation, and shall further
include all other persons of
one-half or more Indian blood. .
. . . The term "tribe" wherever
used in this Act shall be
construed to refer to any Indian
tribe, organized band,
pueblo, or the Indians residing
on one reservation. The
words "adult Indians" wherever
used in this Act shall be
construed to refer to Indians
who have attained the age of
twenty-one years.
As Cohen notes, the above IRA
definitions make three classes of Indians eligible
to organize under the
[IRA]:
(1) Members of any recognized
Indian tribe now under
federal
jurisdiction;
7
(2) Descendants of members of
any such recognized
Indian tribe, who resided on any
reservation on June
1, 1934; and
(3) Persons of one-half or more
Indian blood.
Cohen at 15.
Among such IRA rights for
Indians, i.e., for those individuals certified as being
of
one-half or more Indian blood,
is the right to have the Secretary of the Interior
(“Secretary”) take land into
trust for them under 25 U.S.C. § 465. Id. As Cohen
notes,
“[o]nce these individuals become
the beneficiaries of land held in trust they can
organize
themselves as a government and,
as a ‘reservation’ tribe or band, become eligible for
organization under the IRA.”
Id.
C. Federal Certification of the
“Original 22” as Indians Under the IRA
Following Congress’ enactment of
the IRA in 1934, an individual named
Lawrence Maynor and 208 other
individuals, all of whom self-identified as Indians
and
resided in Robeson County, North
Carolina, petitioned the Secretary for recognition by
the federal government as
persons of one-half or more Indian blood. See Maynor
v.
Morton, 510 F.2d 1254, 1256
(D.C. Cir. 1975). The Department of the Interior (DOI)
subsequently hired
anthropologist Carl Seltzer and several other specialists to
examine
the 209 individuals and
determine whether each individual was of one-half or
more
Indian blood and qualified as an
“Indian” under the IRA, 25 U.S.C. § 479. Seltzer and
the
specialists ultimately concluded
that twenty-two (22) people out of the 209 individuals
were one-half degree or more
Indian blood. See Venita Jenkins, Siouan kin contest
Lumbee recognition, Fayetteville
Observer, April 25, 2004; see also Maynor supra, 510
F.2d at 1256.
These twenty-two individuals,
which included Lawrence Maynor, subsequently
became known as the “Original
22.” The DOI notified the Original 22 that they were
“entitled to benefits
established by the Indian Reorganization Act.” See Letter
dated
January 28, 1939 from
Commissioner John Collier to Lawrence Maynor. In his
1939
letter, Collier also stated that
Maynor’s enrollment as an “Indian” under the IRA
“would
not apply to any children
[Maynor] may have, unless they were born of a mother who
had
likewise been determined to be
one-half or more Indian.” See also Maynor, 510 F.2d at
1256; Letter dated December 12,
1938 from William Zimmerman, Assistant
Commissioner of Indian Affairs
to Joseph Brooks (Letter informing Brooks that the
Original 22 were certified as
Indians but not entitled to any rights and status as
members
of an Indian tribe, since the
government was not holding land in trust “for the Siouans.”)
6
D. Overturning of the DOI’s
Erroneous Interpretation of the Lumbee
Act in Maynor v. Morton, 510
F.2d 1254 (D.C. Cir. 1975)
6 See Cynthia L. Hunt, Looking
back while walking forward: Maynor v. Morton, Part
III,
Carolina Indian Voice, April 20,
2000:10. This firm has the abstract of article, which
was
taken from the website <
http://linux.library.appstate.edu/lumbee/17.5/HUNT013.htm>
.
8
In 1956, Congress passed the
Lumbee Act of June 7, 1956, Pub. L. 84-570, 70
Stat. 254 (1956). The Lumbee Act
provided that the Indians in Robeson and surrounding
counties would be known as
“Lumbee Indians.” The Lumbee Act further provided that
“[n]othing in this Act shall
make such Indians eligible for any services performed by
the
United States for Indians
because of their status as Indians, and none of the statutes of
the
United States which affect
Indians because of their status as Indians shall be applicable
to
the Lumbee Indians.” Thus,
through enactment of the Lumbee Act, Congress
attempted
to deal with the “problem” of
various self-identified North Carolina Indian groups
seeking federal recognition by
“recognizing” them as “Lumbees” while simultaneously
cutting them off from the
federal financial support and program services
generally
provided to federally recognized
Indian tribes. On November 28, 1972, the BIA Deputy
Solicitor issued a letter
setting forth the BIA’s position that the Lumbee Act
“clause
concerning eligibility for
federal Indian services . . . terminated the rights of
[the
Original 22] obtained in 1938 by
virtue of their certification as Indians of more than
fifty
percent blood.” Maynor, 510 F.2d
at 1257.
The position taken by the BIA in
the 1972 Solicitor opinion, which attempted to
nullify the rights of the
Original 22 under the IRA, was soon subsequently
challenged,
held to be legally erroneous,
and dispositively discarded by a federal appellate court
in
Maynor v. Morton, 510 F.2d 1254
(D.C. Cir. 1975). In the early 1970s, Lawrence
Maynor – the same Lawrence
Maynor who initially petitioned the DOI for recognition
as
an Indian under the IRA – filed
a complaint in the United States District Court for
the
District of Columbia against the
Secretary seeking a declaratory judgment of Maynor’s
rights under the IRA. The
District Court dismissed Maynor’s complaint on summary
judgment. However, on appeal,
the federal appellate District of Columbia Circuit
Court
ruled that Maynor was entitled
to declaratory judgment against the Secretary on the
issue
of Maynor’s rights under the IRA
as one of the Original 22. The Court held that there
was nothing in the Lumbee Act
that was inconsistent with the rights previously granted
to
the Original 22 under the IRA
and that the Lumbee Act did not indicate any
congressional intent to take
away any previously recognized IRA rights. Maynor, 510
F.2d at 1258. The Maynor Court
found that “[i]n 1934-38 plaintiff Maynor was not a
‘Lumbee Indian,’ because the
Lumbee Indians were not a legally recognized group . . .
.
[rather Maynor] was simply
certified as an ‘Indian,’ and it is as such that he seek
a
declaratory judgment of his
rights.” Maynor, 510 F.2d at 1258. It was under the IRA
–
and not the Lumbee Act – “that
[Maynor] lays claim to whatever rights he might have.”
Id. at 1259. These IRA rights,
as further explained in this Petition, include the right
to
file this petition with the
Secretary to acquire land in trust and, if such land is declared
to
be a reservation by the
Secretary, to organize with other one-half or more blood
Indians
residing on the same land as a
tribal government.
9
III. PURPOSE OF THIS
PETITION
A. The Siouan Indians of Lumber
River Request that the Secretary
Acquire Land in Trust for the
Tribe under the Indian Reorganization
Act.
The Siouan Indian Community of
Lumber River submits this application to the
Secretary of Interior for
placement of land currently held in fee by the Nation in
trust
status pursuant to Section 5 of
the Indian Reorganization Act (IRA), 25 U.S.C. § 465
and
25 C.F.R. part 151. This
application is made as an “off-reservation” acquisition
pursuant
to 25 CFR §151.11 because
despite years of persistent effort, the Nation still has
no
reservation and no land in
trust.
1. Applicant and Project
Information (25 C.F.R. §151.9)
The applicant is the Siouan
Indian Community of Lumber River, which consists
of one living member, Paul
Brooks. Currently the Siouan Indian Community of
Lumber
River has no reservation land
and no land held in trust for its benefit. As outlined
in
further detail above, the
Secretary has the authority to take land into trust for the
benefit
of the Siouan Indian Community
of Lumber River and to proclaim that land the
reservation of the Tribe. The
land to be acquired consists of 20.228 Acres in
Columbus
County, North Carolina. The
Siouan Indian Community of Lumber River has
continuously used and occupied
lands located in Columbus County and the surrounding
areas as part of their
traditional territory since time immemorial.
a. Authority of the Secretary to
Acquire Land in Trust.
(25 C.F.R. §151.10
(a))
The authority for the Secretary
to acquire land into trust for the Siouan Indian
Community of Lumber River is
Section 5 of the Indian Reorganization Act (IRA), 25
U.S.C. § 465. Pursuant to 25 CFR
§ 151.4, unrestricted land owned by an individual
Indian or a tribe may be
conveyed into trust status, including a conveyance into trust
for
the owner, subject to the
provisions of 25 CFR Part 151. The IRA gives the authority
to
approve non-gaming related
acquisitions to the Secretary of the Interior.
25 U.S.C. § 465, supra,
indicates that the Secretary has discretionary authority
to
acquire lands “in the name of
the United States in trust for the Indian tribe or
individual
Indian for which the land is
acquired, and such lands or rights are exempt from State
and
local taxation.” However, with
respect to tribes or individual Indians recognized
under
the IRA, the BIA has indicated
on multiple occasions that such Indians are entitled
to
have land purchased for their
benefit:
1. Memorandum from Nathan R.
Margold to the Office of Indian
Affairs, Purchases Under
Wheeler-Howard Act (Aug. 31, 1936), in
Opinions of the Solicitor of the
Dept. of Interior Relating to Indian
Affairs: 1917-1974, Vol. 1, 668
(U.S. Govt. Printing Office
1975)(“Opinions, Vol. 1”)(“The
Wheeler-Howard Act [IRA] . . .
authorizes the purchase of land
for Indians and defines the term
10
‘Indian’ to include those
persons of one-half or more Indian blood
regardless of membership in a
recognized Indian tribe under
Federal jurisdiction and
regardless of residence on an Indian
reservation . . . . . In so far
as the Indians in Mississippi fall within
this definition as to degree of
blood, purchases may be made for
their benefit. Moreover, these
Indians may be organized under the
provisions of the Wheeler-Howard
Act after land has been
acquired for
them”);
2. Memorandum from Nathan R.
Margold to the Office of Indian
Affairs, IRA-Acquisition of Land
(Jan. 4, 1937), in Opinions, Vol.
1 at 706 (“An examination of the
file reveals that the Indians in
question are scattered over a
wide area in the northeastern quarter
of Nevada and apparently are not
affiliated with any recognized
tribe or band. But they fall
within the class defined as to the
degree of Indian blood, and
insofar as they do, purchases may be
made for their
benefit.”);
3. Memorandum from Nathan R.
Margold to the Commissioner of
Indian Affairs, Status of St.
Croix Chippewas (Feb. 8, 1937), in
Opinions, Vol. 1 at 724 (“[T]he
title to the land purchases being
made in certain of the larger
Indian groupings should be taken for
the St. Croix Chippewa Indians
of the half blood or more who may
be designated by the Secretary
until such time as they organize
under section 16 of the
Reorganization Act and then for the benefit
of such organization. After the
land purchase is completed, the
Indians who come to reside upon
this land would then be entitled
to organize as Indians residing
on a reservation.”)
As indicated above, the IRA
provides that an "Indian . . . shall . . . include all
other persons of one-half or
more Indian blood.” 25 U.S.C. § 479. The accompanying
regulations governing the
acquisition of land in trust under the IRA are found in 25
CFR,
Part 151. As under the IRA,
under 25 CFR § 151.2(c)(3), an “Individual Indian”
includes
“[a]ny other person possessing a
total of one-half or more degree Indian blood of a
tribe.”
In a letter dated November 29,
1971, the Acting Chief for the DOI Division of
Tribal Operations, R.M.
Pennington, confirmed that both the children and full siblings
of
the Original 22 would also be
identified as “Indian” under the IRA. Specifically,
Pennington stated
that:
It should be noted that all of
the full brothers and sisters of
those twenty-two persons would
be considered one-half or
more Indian. Further, all of the
children of persons
considered one-half or more
Indian are automatically
considered at least
one-quarter-Indian.
See Letter from R.M. Pennington
to Carnell Locklear, Tribal Operations at 2 (November
29, 1971).
11
There is one living member of
the Original 22, Paul Brooks. It is our legal
opinion that this one living
Tuscarora Indian satisfies the statutory and
regulatory
definition of “Indian”. This
individual has the right to have the Secretary take his
lands
into trust for him pursuant to
the above authority, including the 1936 and 1937 BIA
Memoranda and the 1971 BIA
letter.
b. Purpose and Need for the Land
(25 C.F.R. §151.10 (b))
The purpose of the contemplated
acquisition of land is to develop economic
infrastructure and housing for
purposes of facilitating Tribal self-determination,
economic development and
self-sufficiency. The Siouan Indian Community of
Lumber
River wishes to establish a
governmental revenue base in order to provide for
governmental infrastructure to
assist its Tribal members. Since 1935, it has been
formally established that
members of the Nation are entitled to and deserve to have
land
taken in trust to use as their
reservation. Despite years of effort and initiative by
the
Nation and numerous attempts to
wade through the bureaucratic red tape, the Nation
still
has no reservation and no land
in trust. The Nation has been unable to provide for
its
people in ways similar to the
surrounding community and surrounding Indian tribes
because the Tribe has no
sustainable economic base. The Nation continues to
suffer
economic and social inequities.
Without trust land, the Tribe has had little opportunity
at
economic development and little
chance at true self-governance.
Revenues are needed from diverse
sources to provide the Nation with an ongoing
independent economic base to
support Tribal governmental functions. The Nation
wishes
to provide essential
governmental services, sufficient infrastructure such as water
supply
and wastewater treatment,
administrative facilities, and sufficient housing for
Tribal
members. Increased revenues
would help the Siouan Indian Community of Lumber
River establish governmental
responsibilities and would provide resources to
improve
social, cultural, recreational,
housing, and community development programs.
c. Location and Description of
the Land to be Acquired
(25 C.F.R. § 151.9 and §151.11
(b))
1. Site Description
There are two (2) parcels
involved in the acquisition. The parcels are in the
aboriginal territory of the
Siouan Indian Community of Lumber River and are located
in
an area of historical and
cultural significance to the Nation. Both parcels are located
in
Columbus County, North Carolina.
The two (2) parcels total approximately 20 acres and
are located in Waccamaw
Township, Columbus County, North Carolina, and being
more
particularly described as
follows:
TRACT ONE:
Being all of Tract #3 containing
10.693 acres, as shown on a plat of survey entitled
“Division of Property Surveyed
for: Iron Horse Auction Co.” made by
12
Dixie Land Surveying, PLLC,
dated March 31, 2005 and recorded in Plat Book 78,
Page
32, of the Columbus County
Registry, reference to which is hereby made for a more
complete description by metes
and bounds.
See Deed Book 751, Page
76