State and Federal Recognition of Native American Tribes in Virginia

When the English first explored Virginia, they discovered that the paramount chiefdom controlled by Powhatan included over 30 tribes. Other tribes were identified outside of Powhatan's control, including the Doeg in Northern Virginia and the Monacans and Manahoacs west of the Fall Line.

As explorations extended westward, colonists identified additional tribes such as the Tutelo, Saponi, Meherrin, Nottoway and Cherokee. Fur traders, government officials, and frontier settlers learned the distinctions between different groups, in order to negotiate for food, furs, land, and peace.

Today, there are 11 tribal groups officially recognized today by the Commonwealth of Virginia:

Formal treaties between Virginia and today's Pamunkey/Mattaponi tribes date from the 1600's, a century before establishment of the Federal government. In the 1700's, colonial officials in London asserted more-centralized control over Native American affairs, but still struggled to control trade between Native American groups and colonists. The Proclamation of 1763, issued by King George III after the French had ceded their North American claims, was a blunt tool intended to minimize expensive conflicts over land claims. The proclamation identified "Indian territory" and banned new settlement west of the Alleghenies, at least in theory.1

Since its creation in 1788, the Federal government of the United States has taken the role of the sovereign and signed treaties with various tribes to establish reservations and manage land "in trust," define the boundaries of hunting and fishing rights, and provide some social services. In Virginia, however, tribal relations with the government have involved state rather than Federal agencies.

For example, the 1677 Treaty of Middle Plantation formalized a dedicated state reservation, and today's Mattaponi and Pamunkey reservations date back to that treaty (and some preceding agreements). The US Congress had no role in creating those two Virginia reservation; another century would go by before the US Congress itself was created.

Virginia tribes began a concerted effort for state recognition after a 1900 law required separate railroad coaches for white vs. colored passengers, local officials during World War One sought to draft tribal members as blacks, and anthropologists James Mooney and Frank Speck initiated professional anthropological studies that spurred tribal organization.2

Virginia provides special fishing and fishing rights to members of recognized tribes. Any Indian who "habitually" resides on an Indian reservation or a member of the Virginia recognized tribes who resides in the Commonwealth is not required to have a hunting or freshwater fishing license, though a saltwater license is needed.3

A push for formal Federal recognition of individual tribes in Virginia began in the mid-1990's. That effort received heightened attention during the 400th commemoration of the settlement of Jamestown in 2007. Still, at the end of 2013 no Virginia tribe had been recognized by the Federal government, though 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:4

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

The lack of Federal recognition limits the ability of all 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.5

In particular:6

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...

within Region 3 of EPA, there are no Federally-recognized tribes
within Region 3 of EPA, there are no Federally-recognized tribes
Source: Environmental Protection Agency

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. The Bureau of Indian Affairs regulations require extensive documentation of continuous tribal existence throughout time. As of 2012, 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.7

The Bureau of Indian Affairs (BIA) description of the Federal recognition process includes these answers to Frequently Asked Questions:8

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

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 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.9

Since 2007, both Republican and Democratic legislators from Virginia have sponsored Federal recognition bills. Some have been approved by the House of Represenatives, 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.

Rep. Frank Wolf (10th District) has stated that 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 notes, 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:10

"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."

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."11

The Virginia Petroleum, Convenience And Grocery Association has also 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."12

Mattaponi Reservation on Mattaponi River
Mattaponi Reservation on Mattaponi River
Source: US Geological Survey 1:24,000 scale topographic map, 1949 - King And Queen

To obtain state recognition, three tribes bypassed the administrative process in the executive branch and went directly to the legislature. The Virginia Council on Indians, which was responsible for the administrative process and recommending approval or rejection by the General Assembly, had defined six criteria in 2006 for recognition:13

1. Show that the group’s members have retained a specifically Indian identity through time
2. Demonstrate descent from an historical Indian group(s) that lived within Virginia’s current boundaries at the time of that group’s first contact with Europeans
3. Trace the group’s continued existence within Virginia from first contact to the present
4. Provide a complete genealogy of current group members, traced as far back as possible
5. Show that the group has been socially distinct from other cultural groups, at least for the twentieth century and farther back if possible, by organizing separate churches, schools, political organizations or the like
6. Provide evidence of contemporary formal organization, with full membership restricted to people genealogically descended from the historic tribe(s)

In 2010, the General Assembly granted recognition directly to the Cheroenhaka (Nottoway), Nottoway of Virginia, and Patawomeck tribes, using the legislative process to bypass the Virginia Council on Indians and its six criteria for recognition. The Virginia Council on Indians had recommended against recognition of the Nottoway Indian Tribe of Virginia, and the other two tribes never submitted petitions to the council.14

Legislators from the state legislative districts of those three tribes advocated for recognition in 2010, despite concerns that abandoning the administrative process could encourage other groups with less cohesion through time to seek recognition as an official tribe. News media highlighted the legislative hearing when entertainer Wayne Newton testified in support of Patawomeck recognition.15

After the 2010 General Assembly recognized the three tribes, the Virginia Council on Indians stopped meeting. In 2012, the General Assembly abolished the council, as part of the governor's reorganization of the executive branch of state government.

When the Virginia Council on Indians was abolished, it had received "letters of intent" but no formal petitions for recognition from the Appalachian Intertribal Heritage Association, Inc.; United Cherokee Indian Tribe of Virginia, Inc.; Blue Ridge Cherokee, Inc.; Tauxenent Indian Nation of Virginia; and Bear Saponi Tribe of Clinch Mountain Southwest Virginia.16

Virginia now relies purely upon a political processs for recognizing new tribes; there is no executive branch administrative review process to validate proposals. There is only one path for groups to obtain recognition by the Commonwealth of Virginia as a tribe - passage of a law by the Virginia legislature.

In 2012, 2013, and 2014, the legislature postponed action on the request for state recognition of the Appalachian Cherokee Nation. In colonial times, the Cherokee were an Iroquoian-speaking tribe based in the Tennessee River watershed, including southwestern Virginia. In 1838, the tribe was forced to relocate to Oklahoma, following a "Trail of Tears." The Eastern Band of Cherokee Indians avoided expulsion, and today are a Federally-recognized tribe with a reservation near Great Smoky Mountains National Park.

The Appalachian Cherokee Nation is a group based in Westmoreland County, in Tidewater Virginia east of Fredericksburg. In 2013, the widow of the former chief of the Appalachian Cherokee Nation expressed her opposition to state recognition, in a letter published in the Fredericksburg Free Lance-Star:17

I just found out that the Appalachian Cherokee Nation or Appalachian Nation Cherokee will try for state approval. This is not a real tribe. It's more like a club. I should know. I'm the widow of Chief Raymond Lonewolf Couch. Ray believed that if a person had just one drop of Cherokee blood, he or she was Cherokee. Ninety-eight percent cannot prove blood.
dancers at 2012 powwow (Riverbend Park, Fairfax County)
dancers at 2012 powwow (Riverbend Park, Fairfax County)

Virginia's approach, relying upon just a political processs for recognition, is comparable to Tennessee - where there are no state-recognized tribes.

The Tennessee Indian Affairs Commission proposed to recognize six tribes in 2010, but that decision was voided after the federally-recognized Cherokee Nation of Oklahoma sued. The commission was then eliminated by the state legislature. The debate in Tennessee involves whether six groups are remnants of organized tribes with clear ties to the past, or just recently-formed "culture clubs" seeking legitimacy and access to Federal programs.18

Links

References

1. Charles D. Bernholz, Brian T. O’Grady, "Insights from editions of The Annual Register regarding later variants of the Royal Proclamation of 1763: An application of Levenshtein’s edit distance metric," University of Nebraska-Lincoln, Center for Digital Research in the Humanities, http://annualregister1763.unl.edu/ (last checked May 27, 2012)
2. Helen C. Rountree, Pocahontas's People: The Powhatan Indians of Virginia Through Four Centuries, University of Oklahoma Press, 1996, pp.212-218
3. "Fishing License Information & Fees," Virginia Department of Game and Inland Fisheries, http://www.dgif.virginia.gov/fishing/regulations/licenses.asp (last checked March 5, 2014)
4. "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 (last checked April 5, 2014)
5. "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 (last checked May 27, 2012)
6. 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)
7. 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)
8. "Frequently asked Questions," Bureau of Indian Affairs, http://www.bia.gov/FAQs/index.htm (last checked September 9, 2012)
9. 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)
10. "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)
11. Senate Hearing 109–576. p.95, http://www.indian.senate.gov/public/_files/June212006.pdf (last checked May 27, 2012)
12. "Hunting Licenses & Fees," Virginia Department of Game and Inland Fisheries, http://www.dgif.virginia.gov/hunting/regulations/licenses.asp; "Fishing License Information & Fees," Virginia Department of Game and Inland Fisheries, http://www.dgif.virginia.gov/fishing/regulations/licenses.asp (last checked May 27, 2012)
13. "Tribal Recognition Criteria," Virginia Council on Indians, May 16, 2006, http://indians.vipnet.org/resources/tribalRecognitionCriteria.pdf (backup copy) (last checked June 3, 2012)
14. "Annual Executive Summary on the Interim Activity and Work of the Virginia Council on Indians," Virginia Council on Indians, 2011, http://leg2.state.va.us/dls/h&sdocs.nsf/0/59f493fd3ea78725852576ce005f87aa?OpenDocument; "Recognition Committee Report to the VCI - Nottoway Tribe of Virginia Petition for State Recognition," Virginia Council on Indians, April 17, 2009, http://indians.vipnet.org/docs/NottowayRecComReport042109.doc backup copy) (last checked June 3, 2012)
15. "Wayne Newton advocates for Virginia state recognition of Patawomeck Indian tribe," Washington Post, February 3, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/02/02/AR2010020203562.html (last checked June 3, 2012)
16."State vs. federal recognition for Indian tribes," The Virginian-Pilot, June 10, 2009, http://hamptonroads.com/2009/06/state-vs-federal-recognition (last checked March 5, 2014); "State Recognition of Indian Tribes," Virginia Council on Indians, http://indians.vipnet.org/stateRecognition.cfm (no longer online - last checked June 3, 2012)
17. "No celebrity in tow, Va. Cherokee tribe is told to wait", The Virginian-Pilot, March 4, 2014, http://www.freelancestar.com/2013-02-08/articles/593/letter-appalachian-cherokees-a-club-not-a-tribe/; "Letter: Appalachian Cherokees a 'club,' not a tribe," Fredericksburg Free Lance-Star, February 8, 2013, http://www.freelancestar.com/2013-02-08/articles/593/letter-appalachian-cherokees-a-club-not-a-tribe/ (last checked March 5, 2014)
18. "House bill recognizing six groups as Indian tribes shuttled off for summer study," Chattanooga Times Free Press, April 10, 2012, http://timesfreepress.com/news/2012/apr/10/house-bill-recognizing-six-groups-indian-tribes-sh/?breakingnews; "State Recognition of Six Indian Tribes 'Void and of No Effect'," Nashville News-Sentinel, September 4, 2010, http://blogs.knoxnews.com/humphrey/2010/09/state-recognition-of-six-india.html; "New Effort to Recognize Tennessee Indian Tribes Underway," Nashville News-Sentinel, March 9, 2012, http://blogs.knoxnews.com/humphrey/2012/03/a-renewed-effort-to-grant.html (last checked October 6, 2013)


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