As of 2017, 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
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
That restriction was a relic of the early 1900's. The state adopted numerous "Jim Crow" laws to segregate by race, and state officials tried to classify Native Americans as "colored." In response, the Pamunkey sought to heighten awareness of their distinctive Native American heritage, and to minimize public perception that there was any association with non-whites.
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
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)
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 first in 2007 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. US Senators from Virginia have supported a parallel recognition bill in the US Senate.
Support for Federal recognition has been bipartisan in Virginia. In the House of Representatives, the 2015 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.
In 2015 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
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
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 included these answers to Frequently Asked Questions:7
Since 2007, both Republican and Democratic legislators from Virginia have 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
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
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
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
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 facilitated official recognition by revising the regulations used by the Bureau of Indian Affairs for considering evidence of historical tribal integrity. The Bureau of Indian Affairs then announced on July 2, 2015 that the Pamunkey tribe had met the criteria because it had:12
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 was unable to access any Federal programs that might have been made available after recognition. In early 2016, the Federal agency rejected the appeal and confirmed recognition of the Pamunkey tribe.13
In September, 2016, the Natural Resources Committee in the US House of Representatives approved a bill that would recognize the Chickahominy, the Eastern Chickahominy, the Rappahannock, the Monacan, the Nansemond, and the Upper Mattaponi tribes - but not the Mattaponi, with their own reservation and a strong case for administrative recognition like the Pamunkey. The US Representative from the 1st District commented:14
Once again, committee approval occurred late in the second session of the Congress, just before the election in November. There was not enough time for action by the full House and the Senate and the process for legislative recognition fell short of closure.
In 2017, the two US senators and five Representatives from Virginia introduced the Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act of 2017, starting the process for legislative recognition once again. The 2017 bill also excluded the Mataponi.15
The 2017 bill was also bipartisan, though a court-ordered redistricting of Congressional boundaries for the 2016 election changed which tribes were represented by the members of the US House of Representatives. Much of the territory once controlled by the Chickahominy and the Eastern Chickahominy moved from the 1st to the 2nd District. The same redistricting shifted the ancestral homeland of the Rappahannock and Upper Mattaponi from the 7th into the 1st District.
Rep. Rob Wittman (1st District) introduced the the Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act of 2017 in the US House of Representatives, and fellow Republican Rep. Scott Taylor (2nd District) co-sponsored it. The Republican in the 7th District, whose district lost most of its territory east of the Fall Line and in 2017 represented even less of what was once Tsenacommacah, did not co-sponsor the bill in 2015 or in 2017.
Democrats in Northern Virginia supported the bill even though it affected tribes who had never lived in the 8th or 11th districts, to show support for Native Americans.
Before the 2016 redistricting, the 3rd District had included significant portion of Tsenacommacah once controlled by Powhatan. After the redistricting, the home of the Nansemond tribe shifted from the 4th District into the 3rd District. In 2017, the Democrat representing the 3rd District renewed his previous support for recognition and co-sponsored the bill.
The redistricting resulted in a Democrat replacing a Republican as the US Representative for the 4th District. That district still included some territory once occupied by the Nansemond, but the location where the tribe was developing a cultural center had shifted to the 3rd District. The new Democrat representing the 4th District, Rep. Donald McEachin, did not initially co-sponsor the recognition bill in 2017 but did sign on several weeks later.
The redistricting did not affect the 5th and 6th Districts, home to the Monacan tribe. The newly-elected Republican serving the 5th District and the re-elected Republican incumbent in the 6th District both declined to co-sponsor the Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act of 2017.16
Republicans in the 1st and 2nd districts, and Democrats in the 3rd, 4th, 8th, and 11th districts, supported legislative recognition of six Virginia tribes in 2017
Source: ESRI, Virginia Public Access Project