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 Patawomeck and Doeg/Taux in Northern Virginia plus 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.
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. 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.
Today, there are 11 tribal groups officially recognized today by the Commonwealth of Virginia:
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. A person who "habitually" resides on a reservation or a member of one of the state-recognized tribes who resides in the Commonwealth does not have to obtain a state hunting or freshwater fishing license from the Department of Game and Inland Fisheries.
A saltwater license issued by the Virginia Marine Resources Commission is still required for the state's three mile zone in the Atlantic Ocean, the Chesapeake Bay, and the downstream portion of tidal rivers. Only a freshwater license is required to fish in the Mattaponi and Pamunkey rivers upstream of the Route 33 bridges at West Point, so residents on the two state-recognized reservations do not need licenses to fish where they live.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 2014 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
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 Pamunky 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:5
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. In particular:6
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 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.7
The Bureau of Indian Affairs (BIA) description of the Federal recognition process includes these answers to Frequently Asked Questions:8
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.9
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.10
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) 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:11
In 2014, the MGM corporation objected to Federal recognition of the Pamunkey tribe. MGM held a State of Maryland license to operate the gambling casino at National Harbor on the Potomac River. It feared that Federal recognition would lead to a competing casino on the Pamunkey reservation in King William County, halfway between Hampton Roads and Richmond.
Though the tribe conceivably could negotiate with Virginia officials and ultimately open a competing casino on the Pamunkey River, there is no guarantee it would succeed. The Colonial Downs racetrack, located on I-64 halfway between Hampton Roads and Richmond, offered gambling on horse races. Gambling at the racetrack was not popular enough to draw customers out of the urban areas and keep Colonial Downs in business; it surrendered its unlimited parimutual license in 2014. MGM may have feared a political deal in the Virginia General Assembly might allow a tribal gambling casino would open at the racetrack, and in that scenario fewer Central Virginia customers would drive to Maryland.
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."12
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."13
To obtain state recognition, three tribes bypassed the administrative process in Virginia's executive branch and went directly to the General Assembly. 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:14
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.15
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.16
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.17
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:18
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.19