NBC hit piece on Trump’s support of Lumbee reveals bias towards unrecognized tribes

BY CHARLENE NIJMEH

The recent NBC article by Laken Kincaid, titled “Trump’s push for Lumbee recognition causes concern among other Native tribes,” highlights a critical issue in Indian Country: the persistent bias against unrecognized tribes and the flawed federal acknowledgment process. The article’s framing, particularly its use of the term “loophole” to describe alternative pathways to recognition, perpetuates a narrative that undermines the legitimacy of tribes like the Lumbee and exposes deep flaws in the Office of Federal Acknowledgment (OFA) process under Part 83.

This rhetoric and the system it defends demand scrutiny.

The term “loophole” implies deceit or exploitation, casting suspicion on the Lumbee Tribe’s pursuit of federal recognition outside the OFA. This language is not neutral; it suggests that seeking alternatives to a broken system is inherently illegitimate. The Lumbee, with over 55,000 members and a documented existence since 1725, have been recognized by North Carolina for over a century. Yet, the federal government, through the Lumbee Act of 1956, explicitly denied them the benefits of recognition, blocking access to critical resources like healthcare, education, and economic development. To label their pursuit of justice through congressional or executive action as a “loophole” dismisses their historical and cultural legitimacy and ignores the barriers imposed by a flawed bureaucratic process.

The OFA’s Part 83 process, established in 1978, is often portrayed as a rigorous, fair standard for federal recognition. In reality, it is a labyrinthine system that places undue burdens on unrecognized tribes, many of which lack the resources to navigate its complexities. To gain recognition, tribes must meet seven stringent criteria, including proving continuous existence as a distinct polity since before 1900, demonstrating political authority, and providing genealogical evidence tying members to a historically recognized tribe. These requirements assume access to extensive documentation, which colonial policies—such as forced displacement, cultural erasure, and destruction of records—often obliterated. For tribes like the Lumbee, whose history involves amalgamation and survival through centuries of colonial disruption, these criteria can be nearly impossible to satisfy, not because they lack legitimacy, but because the process demands evidence that systemic oppression destroyed.

The NBC article quotes Chief Michell Hicks of the Eastern Band of Cherokee Indians, who questions the Lumbee’s identity, suggesting they may not be a “sovereign nation” but rather “remnants of something else, and not necessarily Native.” Such statements reflect a broader bias within Indian Country, where some federally recognized tribes view unrecognized tribes with skepticism, often fueled by fears of resource competition and emerging competitors in Indian gaming. This perspective overlooks the historical realities of tribes like the Lumbee, whose ancestors survived war, disease, and forced assimilation, maintaining their identity despite federal policies designed to erase it. The article’s emphasis on these voices, while sidelining the Lumbee’s own narrative, reinforces a hierarchy that privileges recognized tribes and established tribal gaming corporations while marginalizing those still fighting for acknowledgment.

The Part 83 process is further flawed by its glacial pace and susceptibility to political influence.

Since its inception, only 18 tribes have been recognized through the OFA, while many others languish in limbo for decades. The process is resource-intensive, requiring tribes to hire anthropologists, historians, and legal experts to compile thousands of pages of documentation. Smaller or less wealthy tribes are at a significant disadvantage, perpetuating inequities rooted in historical disenfranchisement. Moreover, the OFA’s decisions are not immune to political pressures, as evidenced by past controversies over inconsistent application of criteria. To criticize alternative pathways, like congressional action or executive orders, as “bypassing” a supposedly impartial process ignores these systemic shortcomings.

The article also raises concerns about financial implications, citing a Congressional Budget Office estimate that Lumbee recognition could cost over $350 million. This framing pits tribes against one another, suggesting that resources are a zero-sum game. Instead of addressing the underfunding of Indian programs overall, it fuels division within Native communities, distracting from the real issue: the federal government’s failure to honor its trust responsibilities to all Native peoples, recognized or not.

The use of “loophole” and the defense of the OFA process reflect a broader misunderstanding of the federal government’s relationship with Tribes.  Historically, tribes were often recognized by Treaty, executive edict, or other dealings with the federal government.  Constitutional scholars argue that the power to recognize sovereigns is vested in the President, and it’s not a power that he shares with Congress.

Congress, however, has long asserted “plenary jurisdiction” over Indian Affairs.  The power to recognize Tribes has always been seen by the Courts as a power of the Congress.  Indeed, Congress has recognized 26 tribes since 1978, the year it established the administrative recognition process.  Congress claims that this power stems from the Commerce Clause (which gives Congress the power “to regulate commerce with foreign nations, among states, and with the Indian tribes”).  In 2016 in US v Bryant, Justice Clarence Thomas lambasted this assertion:

“Congress’ purported plenary power over Indian tribes rests on even shakier foundations. No enumerated power—not Congress’ power to “regulate Commerce . . . with Indian Tribes,” not the Senate’s role in approving treaties, nor anything else—gives Congress such sweeping authority… the Court has searched in vain for any valid constitutional justification for this unfettered power.”

There are other ways for Tribes to obtain recognition, too.  Of course, the Courts have the ability to affirm a Tribe’s federal status or, slightly short of that, to affirm a Tribe’s retention of sovereign immunity despite not being on the Bureau of Indian Affairs’ 1978 list of officially recognized tribes – as a federal district court judge in the Northern District of California did for the Muwekma Ohlone Tribe in May of 2022.

The most forward thinking of Indian Law experts also make the case that the Secretary of the Interior has been vested by Congress with powers to recognize tribes under various clauses of the Indian Reorganization Act of 1934.  This includes Section 7, granting the Secretary the power to “proclaim new reservations,” and Section 17, granting the Secretary the power to charter federal corporations that are capable of asserting the jurisdictions and immunities of the Tribe, for any Tribe (like Muwekma Ohlone) that was federally recognized at the time of the Act.

And of course, the Secretary of the Interior and Assistant Secretary for Indian Affairs have the authority to take corrective action when he discovers his agency made a mistake.  My Tribe has been asking the federal government for more than five decades to correct the mistake that it made in 1978 when it wrongly omitted us from the first draft of its list of recognized tribes. 

For our people, we were previously recognized as the Verona Band of Alameda County – and we’ve never been terminated by an act of Congress – but the BIA erred in excluding us in 1978.

Alternative pathways to recognition, such as congressional action, are not shortcuts but necessary correctives to a system that has failed too many for too long. President Trump’s executive order urging a plan for Lumbee recognition is a step toward rectifying this injustice, not a threat to the integrity of tribal sovereignty. 

In fact, President Trump could issue an Executive Order affirming the Lumbee Tribe’s status – and assert the constitutional power of his office to recognize sovereigns.

It’s time to reframe the conversation. Federal recognition is not a privilege to be gatekept but a right owed to tribes that have endured centuries of genocidal policies and survival against colonial odds.  The OFA process must be reformed to prioritize fairness, accessibility, and historical context over bureaucratic rigidity.  And the media must stop using loaded terms like “loophole” that undermine the legitimacy of the struggle. 

The Lumbee, like all Native peoples, deserve recognition not as a political favor but as a matter of justice.

Charlene Nijmeh has served as Chairwoman of the Muwekma Ohlone Tribe of the San Francisco Bay since 2018, following her mother’s 43-year tenure.  The Tribe has called on President Trump to rematriate the Presidio, once the site of two Ohlone villages and a Spanish fortress where the Ohlone were once held captive before being enslaved at Mission Delores, Mission Santa Clara, and Mission San Jose.  The Tribe was previously federally recognized and never terminated by an Act of Congress.