Federal Recognition of Native American Tribes in Virginia - and Gambling

As of 2015, only one Virginia tribe - the Pamunkey - has received Federal recognition. That tribe, plus 10 others, had been officially recognized previously by the state of Virginia in a separate, state-controlled process.

The Pamunkey tribe first requested formal Federal recognition in 1982. The efforts of several tribes received heightened attention during the 400th commemoration of the settlement of Jamestown in 2007. The Department of the Interior announced in early 2014 that the Pamunkey tribe with 203 members had "met all seven mandatory criteria for Federal acknowledgment." As one reporter has noted about the Native Americans in Virginia:1

They were here before Virginia was called Virginia, but the federal government still doesn't recognize them.

In late 2014, the Congressional Black Caucus objected to plans by the US Department of the Interior to grant Federal recognition to the Pamunkey tribe because the Pamunkey tribal law had allowed new spouses married to a tribal member to live on the reservation - but not if the spouse was black. Until 2012, the law said:2

No member of the Pamunkey Indian Tribe shall intermarry with anny (sic) Nation except White or Indian under penalty of forfeiting their rights in Town.

The lack of Federal recognition limited the ability of Virginia tribes to rely upon Federal protections for cultural heritage, or obtain $10-12 million/year from certain social programs for education, housing and health care. In particular:3

Federal recognition would enable these nations to strengthen their communities with increased federal protections for religious freedom (1978 American Indian Religious Freedom Act), child welfare (1978 Indian Child Welfare Act), and return of ancestral remains (1990 Native American Graves and Repatriation Act) and make them eligible for federal assistance in the areas of education and health care (1975 Self-Determination and Educational Assistance Act, 1988 Self-Governance Project) and housing programs...

The Pamunkey and Mattaponi initially relied upon the administrative recognition process for Federal recognition. That process is based in the Executive Branch, and relies upon Bureau of Indian Affairs (Department of the Interior) regulations issued in 1978 after lawsuits over fishing rights in the Pacific Northwest and for land ownership in Maine.

until the 2015 decision on the Pamunkey Tribe, there were no Federally-recognized tribes within Region 3 of the Environmental Protection Agency (EPA)
until the 2015 decision on the Pamunkey Tribe, there were no Federally-recognized tribes within Region 3 of the Environmental Protection Agency (EPA)
Source: Environmental Protection Agency, Environmental Protection in Indian Country

The Bureau of Indian Affairs regulations require extensive documentation of continuous tribal existence throughout time. As of 2015, the Federal government had recognized 566 tribes, but roughly 400 other groups claimed tribal status. The Federal administrative recognition process was so slow, it would require over 100 years before the backlog of petitions was eliminated.4

To compensate for the lack of historical documentation that would meet the Bureau of Indian Affairs requirements, the Chickahominy, Eastern Chickahominy, Monacan, Nansemond, Rappahannock, and Upper Mattaponi sought special legislation directly from Congress for Federal recognition of those six Virginia tribes.

The Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act was introduced yet once again in 2015, to bypass the administrative process and legislatively grant Federal recognition to those six tribes. The bill would authorize the Secretary of Interior to take "into trust" as Federal reservations lands owned by those tribes within defined geographic boundaries.

Both US Senators supported a recognition bill in the US Senate. In the House of Representatives, the sponsor of H.R.872 was Rep. Rob Wittman. His 1st District included much of the territory in Tidewater Virginia once controlled by Powhatan's paramount chiefdom.

Rep. Wittman's bill was co-sponsored by a fellow Republican from the 2nd District, which included the Eastern Shore and Virginia Beach. Both US senators advocating for a parallel bill were Democrats, and other co-sponsors in the House were the Democratic Representative from the 3rd District (which included much of the James River watershed downriver from Richmond) plus two Democratic Representatives representing the 8th and 11th districts in Northern Virginia.

Four Republican members who represented Congressional districts affected by recognition of those six tribes were not co-sponsors at the time of the 2015 hearing. The Representatives from the 4th and 7th Districts (which included territory once controlled by the Nansemond, Rappahannock, and Upper Mattaponi) were not co-sponsors. The Representatives from the 5th and 6th Districts, including territory once occupied by the Monacan, also declined to co-sponsor the bill.5

To justify action by the US Congress, Virginia tribes highlighted how written documentation was unreliable in their circumstances. For example, many county records were burned in the Civil War, and then the General Assembly's 1924 Racial Integrity Act and forceful action by the registrar of Virginia's Bureau of Vital Statistics (Dr. Walter Plecker) suppressed, modified or purged the remaining historical records. As far back as 1923, the Rappahannock chief George Nelson had appealed directly to Congress to appropriate $50,000 to establish an Indian school in Virginia.6

The Bureau of Indian Affairs (BIA) description of the Federal recognition process includes these answers to Frequently Asked Questions:7
What is a federally recognized tribe?
A federally recognized tribe is an American Indian or Alaska Native tribal entity that is recognized as having a government-to-government relationship with the United States, with the responsibilities, powers, limitations, and obligations attached to that designation, and is eligible for funding and services from the Bureau of Indian Affairs.

Furthermore, federally recognized tribes are recognized as possessing certain inherent rights of self-government (i.e., tribal sovereignty) and are entitled to receive certain federal benefits, services, and protections because of their special relationship with the United States. At present, there are 566 federally recognized American Indian and Alaska Native tribes and villages.

How is federal recognition status conferred?
Historically, most of today’s federally recognized tribes received federal recognition status through treaties, acts of Congress, presidential executive orders or other federal administrative actions, or federal court decisions.

In 1978, the Interior Department issued regulations governing the Federal Acknowledgment Process (FAP) to handle requests for federal recognition from Indian groups whose character and history varied widely in a uniform manner. These regulations – 25 C.F.R. Part 83 – were revised in 1994 and are still in effect.

Also in 1994, Congress enacted Public Law 103-454, the Federally Recognized Indian Tribe List Act (108 Stat. 4791, 4792), which formally established three ways in which an Indian group may become federally recognized:
- By Act of Congress,
- By the administrative procedures under 25 C.F.R. Part 83, or
- By decision of a United States court

the US Representative from the 1st District sponsored a bill in 2015 for recognizing six Virginia tribes and the US Representatives from the 2nd, 3rd, 8th, and 9th districts joined as co-sponsors (area colored green), but the US Representatives from four other Virginia districts that would be affected (4th, 5th, 6th, and 7th) did not join in co-sponsoring H.R.872
the US Representative from the 1st District sponsored a bill in 2015 for recognizing six Virginia tribes and the US Representatives from the 2nd, 3rd, 8th, and 9th districts joined as co-sponsors (area colored green), but the US Representatives from four other Virginia districts that would be affected (4th, 5th, 6th, and 7th) did not join in co-sponsoring H.R.872
Source: ESRI, ArcGIS Online

Since 2007, both Republican and Democratic legislators from Virginia sponsored Federal recognition bills. Some have been approved by the House of Representatives, but the US Senate has never voted approval. "Recognition" would establish a government-to-government relationship between each tribe and the United States, making members of the tribe eligible for funding and services from the Bureau of Indian Affairs.

Executive Branch officials have recommended that all Virginia tribes must go through that agency's administrative process to grant recognition. The director of the Office of Federal Acknowledgement at the Department of the Interior objected to the Thomasina Jordan Indian Tribes Of Virginia Federal Recognition Act in 2006, since a decision by Congress would allowing the Virginia tribes "to avoid the scrutiny to which other groups have been subjected."8

Rep. Frank Wolf (who represented the 10th District between 1981-2015) claimed Federal recognition could lead to casino gambling authorized under the Indian Gaming Regulatory Act of 1988, even though tribes recognized after 1988 must comply with state laws and Virginia bans such gambling. He did not block passage in the House of Representatives, but his opposition may have led to the bills stalling in the Senate. As Wolf noted, his objections would disappear if the Virginia tribes would accept Federal legislation that permanently banned casino gambling on tribal lands, within or outside of the boundaries of a reservation and independent of any future loosening of Virginia's state restrictions on gambling:9

"Virginia does not have casino gambling, and because we do not, we have avoided the crime, corruption and scandal that a number of other states have fallen victim to... My concern is not with the federal recognition of Virginia's Indian tribes. My concern is with the explosive spread of gambling and the potential for casino gambling to come to Virginia."

In 2014, the MGM corporation objected to Federal recognition of the Pamunkey tribe. The tribe occupied a 1,200-acre reservation, the oldest in Virginia, halfway between Hampton Roads and Richmond in King William County.

Pamunkey Neck was reserved for Native Americans after the Anglo-Powhatan wars in the 1600's
Pamunkey Neck was reserved for Native Americans after the Anglo-Powhatan wars in the 1600's
Source: ESRI, ArcGIS Online

MGM held a State of Maryland license to operate the gambling casino at National Harbor on the Potomac River. It feared that Federal recognition of the Pamunkey tribe would lead to a competing casino on the Pamunkey reservation.

Late in 2015, the Washington Post revealed that the tribe was negotiating with a casino developer as the Department of the Interior was making the final decision on Federal recognition. The chief and council prepared a new tribal budget with costs increasing from $30,000/year to $500,000/year. No source of new funding was documented to provide a new $100,000/year salary for the chief of the tribe and a $25,000/year salary for each of the six council members. The tribe responding by ousting the chief from his elected position.

The only logical source for funding the proposed increase in the tribal budget was a corporation making a speculative investment, planning to shape a future decision to allow casino gambling on the Pamunkey reservation. As one member of the tribe noted:10

You ain't gonna get that kind of money by opening up a little store on the reservation...

Though the tribe conceivably could negotiate with Virginia and Federal officials, ultimately opening a competing casino on the Pamunkey River, there is no guarantee that the site could attract enough customers to be profitable. The reservation is a 40-minute drive from I-64, much of it on poor 2-lane roads. A different gambling operation, located right on an I-64 interchange halfway between Hampton Roads and Richmond, shut down in 2014.

The Colonial Downs racetrack had a monopoly for horse race gambling in Virginia. It was the only racetrack in the state with an unlimited pari-mutuel license authorizing gambling throughout the year, and generated most of its revenue from Off Track Betting (OTB) kiosks highlighting races at tracks in other states.

Gambling at the racetrack was not popular enough to draw enough customers out of the urban areas, and the profits from OTB operations did not offset the costs of hosting races at Colonial Downs. In 2014, the racetrack surrendered its unlimited pari-mutuel license and closed the OTB facilities.

the reservation of the Pamunkey Tribe is north of  I-64, and visitors must drive an additional 45-60 minutes longer on 2-lane roads than is required to reach Colonial Downs
the reservation of the Pamunkey Tribe is north of I-64, and visitors must drive an additional 45-60 minutes longer on 2-lane roads than is required to reach Colonial Downs
Source: ESRI, ArcGIS Online

MGM may have anticipated the tribe could open a casino not at the reservation on the Pamunkey River, but at a location more convenient for customers. The Federal government has authority to designate Colonial Downs as part of the Pamunkey Reservation. In what may have been MGM's worst-case scenario, the tribe could then arrange a political deal with the Virginia General Assembly and open a tribal gambling casino at the site of the racetrack. Any Virginia casino would reduce the number of customers willing to drive to MGM's casino's in Maryland.

Opposition to Federal recognition of the Pamunkey Tribe came from non-gambling sectors as well. The Virginia Petroleum, Convenience And Grocery Association testified in opposition, fearing that convenience stores located on reservations would not charge state tobacco, gasoline, or sales taxes and could therefore undercut the competition. At the time, the state excise tax was 17.5 cents/gallon for gasoline, and the lobby group portrayed the option of a sovereign Native American tribe to set and collect its own taxes on reservation lands as "tax evasion."11

The US Department of the Interior revised the regulations for considering evidence of historical tribal integrity. The Bureau of Indian Affairs announced on July 2, 2015 that the Pamunkey tribe had met the criteria because it has:12

- Continuously identified as an American Indian body since 1900;
- Existed as a distinct community and maintained political influence over its members since historical times;
- Provided governing documents describing its governance procedures and membership criteria;
- Provided a list of its current members who descend from a historical Indian tribe and who are not also members of another federally recognized tribe;
- Never been subject to congressional legislation that expressly terminated or forbade the federal relationship.

In October, 2015, a non-government organization called Stand Up for California filed an appeal with the Interior Department to block the decision to recognize the Pamunkey tribe. Stand Up for California, which opposes gambling on Indian lands, resubmitted the same arguments it made during the administrative process. During the time required for the Interior Board of Indian Appeals to consider the appeal, the tribe will be unable to access any Federal programs that might have been made available after recognition.13

Slot Machines (and Casino Gambling?) on the Maryland-Virginia Waterfront

State Recognition of Native American Tribes in Virginia

Links

References

1. "Virginia Indian tribes fight for federal recognition," Virginia Statehouse News, September 3, 2010, http://virginia.statehousenewsonline.com/682/virginia-indian-tribes-fight-for-federal-recognition/ (no longer available); "Assistant Secretary Washburn Issues Proposed Findings for Two Federal Acknowledgment Petitioners," press release issued by US Department of the Interior - Indian Affairs, January 17, 2014, http://bia.gov/cs/groups/xofa/documents/text/idc1-024798.pdf; "Pamunkey nation looks to future after gaining federal recognition," Tidewater Review, July 7, 2015, http://www.tidewaterreview.com/news/va-tr-kw-pamunkey-0708-20150707-22,0,6801614.story (last checked July 29, 2014)
2. "Black lawmakers against recognition of Va. tribe," The Virginian-Pilot, November 28, 2014, http://hamptonroads.com/node/736635 (last checked November 29, 2014)
3. "Report to accompany S. 1178, Extending Federal Recognition To The Chickahominy Indian Tribe, The Chickahominy Indian Tribe-Eastern Division, The Upper Mattaponi Tribe, The Rappahannock Tribe, Inc., The Monacan Indian Nation, And The Nansemond Indian Tribe," US Senate, December 23, 2009, p.19, http://www.indian.senate.gov/upload/Report-111-113.pdf; Jeff J. Corntassel and Reeva G. Tilley, "Virginia’s Indian nations: Policy issues and solutions for future generations," Virginia Issues and Answers, Vol. 8 No. 2 (Spring 2002), http://www.via.vt.edu/spring02/feature3.pdf (last checked May 27, 2012)
4. Government Accountability Office, "Federal Funding for Non-Federally Recognized Tribes," GAO-12-348, April 12, 2012, http://www.gao.gov/products/GAO-12-348; House Report 105-737 - Indian Federal Recognition Administrative Procedures Act Of 1998, http://www.gpo.gov/fdsys/pkg/CRPT-105hrpt737/pdf/CRPT-105hrpt737.pdf, September 23, 1998 (last checked May 27, 2012)
5. "Bipartisan Virginia Delegation Introduces Bill To Grant Federal Recognition Of Virginia Indian Tribes," news release from Senator Tim Kaine, February 11, 2015, http://www.kaine.senate.gov/press-releases/bipartisan-virginia-delegation-introduces-bill-to-grant-federal-recognition-of-virginia-indian-tribes; "H.R.872 To extend Federal recognition to the Chickahominy Indian Tribe, the Chickahominy Indian Tribe—Eastern Division, the Upper Mattaponi Tribe, the Rappahannock Tribe, Inc., the Monacan Indian Nation, and the Nansemond Indian Tribe," Government Printing Office, 114th Congress First Session, 2015, http://www.gpo.gov/fdsys/pkg/BILLS-114hr872ih/pdf/BILLS-114hr872ih.pdf (last checked October 1, 2015)
6. Senate Hearing 109–576 Before The Committee On Indian Affairs, S. 480 "To Extend Federal Recognition To The Chickahominy Indian Tribe, The Chickahominy Indian Tribe—Eastern Division, The Upper Mattaponi Tribe, The Rappahannock Tribe, Inc., The Monacan Indian Nation, And The Nansemond Indian Tribe," June 21, 2006, p.48, http://www.indian.senate.gov/public/_files/June212006.pdf (last checked May 27, 2012)
7. "Frequently Asked Questions," Bureau of Indian Affairs, http://www.bia.gov/FAQs/index.htm (last checked September 9, 2012)
8. "The Thomasina Jordan Indian Tribes of Virginia Federal Recognition Act and the Grand River Band of Ottawa Indians of Michigan Referral Act" Hearing 109–576 Before the Committee on Indian Affairs, United States Senate, p.95, http://www.indian.senate.gov/public/_files/June212006.pdf (last checked May 27, 2012)
9. "Wolf: Federal Recognition for Virginia Indian Tribes Could Open Door for Casino Gambling," http://wolf.house.gov/index.cfm?sectionid=34&parentid=6§iontree=&itemid=72 (last checked May 27, 2012)
10. "Pamunkey Indians wanted to open Virginia’s first casino, letter shows," Washington Post, October 23, 2015, https://www.washingtonpost.com/local/pamunkey-indians-wanted-to-open-virginias-first-casino-letter-shows/2015/10/23/c60bda3c-71e1-11e5-8d93-0af317ed58c9_story.html (last checked October 23, 2015)
11. "A renowned Virginia Indian tribe finally wins federal recognition," Washington Post, July 2, 2015, http://www.washingtonpost.com/local/a-renowned-virginia-indian-tribe-finally-wins-federal-recognition/2015/07/02/40cc0dd4-200a-11e5-aeb9-a411a84c9d55_story.html (last checked July 2, 2015)
12. "Interior Department Issues Final Determination for Two Federal Acknowledgment Petitioners," news release from the Office of the Assistant Secretary – Indian Affairs, July 2, 2015, http://www.bia.gov/cs/groups/public/documents/text/idc1-030832.pdf (last checked October 31, 2015)
13. "Federal recognition put on hold for Virginia’s Pamunkey Indian tribe," Washington Post, October 8, 2015, https://www.washingtonpost.com/local/federal-recognition-put-on-hold-for-virginias-pamunkey-indian-tribe/2015/10/08/479dd9e0-6dcf-11e5-b31c-d80d62b53e28_story.html (last checked October 31, 2015)


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