Are citizens of the
Lumbee Tribe considered "Indians" under federal law? A federal employee is trying to get that question answered once and for all.
Heather McMillan Nakai who currently works as a staff attorney for the
National Indian Gaming Commission, sparked debate when she sought
Indian preference when applying for a job at the
Indian Health Service. Doing so required going through the
Bureau of Indian Affairs, which promptly rebuffed her request, citing the Lumbee Tribe's lack of federal recognition.
But Nakai wasn't satisfied with that answer. She filed an administrative appeal within the
Department of the Interior and, when that didn't pan out, she
went to federal court.
“When I’m pushed, I don’t run,” Nakai tells The Washington Post. “I want to push back.”
Pushing back seems to have worked. Though a federal judge
dismissed her lawsuit as "moot" last August, it was because of a new legal development.
An Obama-era opinion from the
Solicitor at the Department of the Interior opened the door for Nakai to seek Indian preference, the judge concluded. After submitting 80 pages of documents to support her case, the 38-year-old mother is waiting for the BIA to come up with a new decision on her
"Verification of Indian Preference for Employment."
“That’s a terrible feeling,” Nakai tells The Post, “to have somebody say to you, ‘You’re so not Indian that you need somebody to send you a pamphlet.’ ”
The BIA had sent Nakai a
pamphlet titled “Guide to Tracing Indian Ancestry” when it initially rejected her first application, The Post reported.
The Lumbee Tribe lacks federal recognition as a result of the
Lumbee Act of 1956. The law, which was enacted during the
disastrous termination era, identifies the residents of Lumbee homelands in North Carolina as "Indians" but denies them any benefits associated with federal status.
The
Obama-era legal opinion, however, shifted longstanding interpretation of the law. The Lumbee Act does not preclude the tribe from seeking federal recognition through the BIA and likewise does not bar Nakai from seeking Indian preference, the judge in her case concluded.
A key portion of the opinion, which has not been rescinded or suspended by the Trump administration, states that the Lumbee Act "does not deny to Lumbees benefits accorded Indians if they are otherwise entitled under the requirements of another act."
Despite the change in federal policy, the tribe continues to seek federal recognition through Congress.
H.R.3650,
the Lumbee Recognition Act, awaits movement in the
House Committee on Natural Resources, which has so far advanced three legislative recognition bills since January 2017. One of them was even
signed into law by President Donald Trump.
Read More on the Story
What Makes Someone Native American?
(The Washington Post August 20, 2018)
Department of the Interior Solicitor Opinion
Reconsideration of
the Lumbee Act of 1956 (December 22, 2016)
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