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General Assembly updates relationships with federal Virginia Indian tribes

Red Hawk “Teerheer” aka Walt “Red Hawk” Brown, Chief of Cheroenhaka (Nottoway) Indian Tribe presents Gov. Glenn Youngkin with the Three Indian Peace Arrows during the 311th year Spotswood Treaty Tribute on Tuesday, April 23, 2024. (Photo via Gov. Youngkin's administration)
Red Hawk “Teerheer” aka Walt “Red Hawk” Brown, Chief of Cheroenhaka (Nottoway) Indian Tribe presents Gov. Glenn Youngkin with the Three Indian Peace Arrows during the 311th year Spotswood Treaty Tribute on Tuesday, April 23, 2024. (Photo via Gov. Youngkin's administration)

Two bills passed by the General Assembly this year will affect the commonwealth’s relationship with Native American tribes, after yearslong policy delays.

This story was reported and written by VPM News

As a result of the legislation, Virginia will consult with federally-recognized tribes on projects with environmental, cultural or historical impact, after the General Assembly accepted amendments from Gov. Glenn Youngkin on legislation. State lawmakers will also have more time to explore how to update Virginia law in light of federal recognition.

Recognition codifies a special government-to-government relationship with tribes and acknowledges their rights and sovereignty. It also opens up opportunities for federal funds to flow. Seven Virginia Indian tribes, as they are officially known, were only recognized in the past decade and Virginia law is out of sync with federal regulations, creating two sets of rules to follow.

“Virginia has a lot of catching up to do,” said Andy Block, a professor at the University of Virginia School of Law. Block said that the federal government’s recognition of tribes was “long overdue.”

The consultation bill,  HB 1157, brings the commonwealth in line with federal rules — and has its origin in a 2021 executive order issued by former Gov. Ralph Northam. In a statement, chiefs of six federally recognized Virginia tribes called it “a big, positive step forward in improving the working relationship between the Commonwealth and our Tribal Nations.”

Another bill,  HB 200, extended the term of a  commission searching the Code of Virginia for possible revisions “to reflect the government-to-government relationship” between the commonwealth and “sovereign, self-governing, federally recognized Tribal Nations.”

“Now, we need to do all we can to recalibrate the relationship between the Commonwealth of Virginia and the sovereign entities, which are Virginia's tribal nations,” said Block.

This year Youngkin’s administration took a much more active role than in the past, said Del. Paul Krizek (D–Fairfax), who sponsored the consultation bill.

“This session the administration did a good job of taking the lead and consulting with tribes on potential changes. The executive agencies had thought a lot about this bill, and I worked on my own colleagues in the house and Senate,” he said. “There was a feeling that we needed something that reflects the state and federal government consultation process vis-à-vis those situations where it’s a federal and state project, and its something the feds do already.”

At the 311th Spotswood Treaty Tribute on Tuesday, Youngkin said he wanted a very senior person in the ombudsman’s role.

“I also want to make sure that we have a very senior person who is in charge of the relationship with the Virginia Indian tribes,” he said. “I hope it's reflective of the fact that I have a personal relationship with the Virginia Indian tribes as well and it's important to me.”

The establishment of both the consultation framework and the code commission began running into hurdles soon after they were introduced into the public debate a few years ago. Their passage finishes off a yearslong process marked by bipartisan delays in the commonwealth’s legislative and executive branches

In the last days of his administration, Former Gov. Ralph Northam issued  Executive Order 82, which directed four state agencies to develop consultation policies with the federally-recognized tribes.

With a short time left in the administration, officials from the affected agencies hurried to work on a consultation policy.

At least one state agency learned of the change through the press announcement, according to a freedom of information request.

“All, This came out of left field, would have been nice if someone would have given us a heads up,” wrote Jeff Steers, the Department of Environmental Quality’s director of central operations, while forwarding the press announcement to DEQ staff in November 2021.

Another state official wrote they weren’t getting email responses.

Once Youngkin took office, officials first wrote they weren’t sure if the Executive Order was still in effect, and later that wrote that they wanted to await the results of the 2022 legislative session before finalizing a draft consultation policy. But after that year’s tribal consultation bills in the Republican-controlled house died in the agriculture committee, they weren’t picked up again by the agencies after the session ended.

“Governor Youngkin and the administration have consistently and actively engaged with Tribal Nations and their leaders,” said Christian Martinez, Youngkin’s press secretary, on Thursday. “Throughout the implementation of the executive order and the legislative process, the administration remained committed to the principles of communication and cooperation with Tribal government by codifying the need for a dedicated ombudsman and consultation with the Tribal Nations.”

Several records were withheld under the exemption governor’s working papers have under Virginia’s public records law.

The 2022 General Assembly was the first to establish the Commission on Updating Virginia Law to Reflect Federal Recognition of Virginia Tribes.

“In lots of ways, Virginia could and should treat tribal nations like they do other government entities,” said Block. “But the code is silent in many places about that recognition, and about that status.”

But that commission had vacancies that were never filled by former House Speaker Todd Gilbert (R–Shenandoah) and remain vacant under the current Speaker Don Scott (D–Portsmouth).

Those vacancies have meant the commission cannot reach a quorum to conduct its business.

A spokesperson for Gilbert said his office didn’t have recommendations from the tribes when he was speaker. A spokesperson for Scott didn’t return a request.

In February 2024, the chiefs of six tribes wrote Scott to urge him to appoint representatives of tribes to the commission to fill the vacancies. Law requires that seven of the eight non-legislative members of the commission come from each of the federally-recognized tribes.

Krizek, who also sponsored the 2022 bill establishing the code commission and the 2024 bill extending it, said that the difficulties Gilbert had contacting the tribes speaks to the importance of the ombudsman position in this year’s bill.

“He let me know he was trying. Having something like that [the ombudsman] will really help,” he said.” Rather than going to several tribes, the legislature can go through the ombudsman.”

Krizek said he understood Scott would appoint people to the vacancies “very, very soon,” and the speaker is “100% on board” with getting the vacancies filled.

The new code commission sunset date is July 1, 2026.

In 2015 the Pamunkey Tribe became the first Virginia Indian Tribe, as they are officially known in the state, to be recognized by the federal government. The federal government recognized six more tribes in 2018: Chickahominy Indian Tribe, the Chickahominy Indians Eastern Division, the Monacan Indian Nation, the Nansemond Indian Nation, the Rappahannock Tribe and the Upper Mattaponi Indian Tribe.

Virginia recognizes 11 tribes, rather than the seven that are federally recognized. Those with state recognition only are the Cheroenhaka (Nottoway), Nottoway, Mattaponi and Patawomeck.

Colonial era-treaties had served as recognition of tribes in the past, like the Spotswood Treaty with the Cheroenhaka (Nottoway) Indian Tribe.

“This is a great honor for us. We do this annually every year,” said Red Hawk “Teerheer” aka Walt “Red Hawk” Brown, Chief of Cheroenhaka (Nottoway) Indian Tribe, on Tuesday. “I might add also that we're the last tribe in Virginia to sign a treaty agreement with the crown of England.”

Some, like the  Patawomeck, have been  seeking federal recognition. Three members of Virginia's delegation in Congress have  sponsored legislation to do so.