Vol. 24, No. 1 January 6, 2016

Virginia's Pamunkey Tribe Almost Gains
Federal Recognition

On July 2, 2015, the Pamunkey Indian Tribe cautiously celebrated as they became the first tribe in Virginia to receive federal recognition by the U.S. Bureau of Indian Affairs (BIA) after spending $2 million and 35 years in the process; however, on October 6, a one-person non-profit organization in California appealed the designation on the last day of a 90-day window. An independent board within the Department of the Interior has an indefinite amount of time to review the appeal. Opponents of the Pamunkey's recognition note that it will set a precedent and make the application process easier for numerous smaller tribes, including 81 in California and 14 in Virginia.

The Pamunkey Tribal Lands as defined in Section 301 (14) of the National Historic Preservation Act (NHPA) includes 1,200 acres, 500 of which are wetlands, located on the northwest side of the Pamunkey River 25 miles east of Richmond in King William County. According to the designation petition, the tribe includes 203 registered members who live on the reservation, in Richmond, Newport News, and other parts of the U.S.

The Pamunkey Reservation is located in eastern Virginia on the Pamunkey River.
What does federal designation mean for land development projects?

While the NHPA encourages consultation with all Indian tribes who may have a "demonstrated interest" in a project area with federal funding or permitting, the NHPA requires consultation with federally recognized tribes on Tribal Land or lands that may be ancestral homelands of an Indian tribe and may contain historic properties of religious and cultural significance to them.

Of potential greater consequence, if the Pamunkey establish a Tribal Historic Preservation Office (THPO), it will assume the role of the State Historic Preservation Office (SHPO) for the reservation and either serve as a consulting or signatory party more regularly on land important to their cultural heritage beyond the reservation. Chief Robert (Bob) Gray anticipates that area might include "a good section of Virginia - from the mountain foothills to the ocean and from the Potomac to the North Carolina line" or roughly what was the Powhatan Paramount Chiefdom.

State Recognition by the Commonwealth of Virginia

When Europeans first arrived in Virginia, the Pamunkey lived in the Coastal Plain province and came to be the most powerful of 35 tribes in the Powhatan Paramount Chiefdom led by Chief Powhatan (father of Pocahontas). The King of England, acting through the Governor of Virginia, signed treaties in 1646 and 1677 to establish Articles of Peace and a land base for several of these tribes. The 1677 Treaty of Middle Plantation signed by the Pamunkey is considered the most important in describing the Commonwealth's relationship with Indian land. During the 18th century, the Pamunkey fought to retain their reservation when many others were forced to disband or move west. After the General Allotment Act of 1887, only the Gingaskin, Mattaponi, Nottoway, and Pamunkey retained reservations. Today, only the Pamunkey and Mattaponi do.

In 1982, the Virginia General Assembly established the Virginia Council on Indians, a formal body to study and identify tribal groups and to advise the General Assembly and the Governor on Indian affairs. The Council also served as the point of contact for federal agencies seeking consultation as encouraged by the NHPA. Between 1983 and 2010, the Commonwealth formally recognized the Pamunkey, Mattaponi, Chickahominy, Eastern Chickahominy, Rappahannock, Upper Mattaponi, Nansemond, Monacan Indian Nation, Cheroenhaka (Nottoway), Nottoway of Virginia, and Patawomeck. In 2012, the Governor and the General Assembly eliminated the Council with the Executive Reorganization Plan (HJ49ER) at the request of a majority of the tribal leaders, thereby requiring the federal government or the applicant's consultant to contact each interested tribe individually as opposed to the Council. In 2014, the General Assembly passed HB 903 directing the Secretary of Virginia to serve as liaison to the Virginia Indian Tribes.

Federal Recognition by the Bureau of Indian Affairs

The Indian Reorganization Act of 1934 laid the groundwork for modern-day federal recognition. Currently, there are 566 tribes with hundreds more seeking designation as it opens tribes up to a slew of federal benefits and allows them to operate as sovereign nations. Despite state recognition, Virginia tribes have been denied by the federal government for decades, due in part to a variety of opposing interests and to the 17th-century treaties signed with the English government as opposed to the United States.

Pamunkey Chief Gray said his tribe began its petition decades ago. In 2009, it stalled due to the tribe's ban on interracial marriage that according to reports related to Virginia's 1924 Racial Integrity Act. In 2012, the ban was lifted, and the petition moved forward again, garnering opposition from groups in the gambling industry, anti-casino constituents, and the Virginia Petroleum and Grocery Association, who fear competition from sovereign nations who don't tax. When finally granted recognition this year, Assistant Secretary Washburn said in a release that the "Pamunkey Indian Tribe has occupied a land base... shown on a 1770 map as 'Indian Town' since the Colonial Era in the 1600s" and easily met the seven mandatory criteria set forth in 25 CFR Part 83.7. A spokesperson for the BIA dismissed the basis of the October appeal.

In hopes of bypassing the BIA application process, the Chickahominy, the Eastern Chickahominy, the Upper Mattaponi, the Rappahannock, the Monacan and the Nansemond gained support from Republican and Democratic Virginia legislators who proposed the Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act (S.465), which would grant official federal recognition to them by an act of congress. Sponsored by Senator Tim Kaine, the bipartisan bill is back under consideration by the 114th U.S. Congress.

Establishing a Tribal Historic Preservation Office

In 1992, Congress adopted amendments to the National Historic Preservation Act (P.L. 102-575) allowing federally recognized tribes to establish a THPO to assume some or all of the duties of the SHPO. "Responsibilities may include conducting a comprehensive survey of tribal historic properties and maintaining an inventory of such properties, preparing and implementing a tribal-wide historic preservation plan, and assisting federal agencies in the Section 106 review of undertakings on tribal lands" (Advisory Council on Historic Preservation). From 1996 to 2012, the number of THPOs in the U.S. grew from 12 to 140.

According to Chief Gray, the governmental body of the Pamunkey Tribe (the chief and seven council members) has for many years received Section 106 consultation invitations as a courtesy, but with limited financing and reliance on volunteers, the tribe has not engaged in all invitations. Chief Gray noted, "We currently have no funding to pay for any of our tribal infrastructure (Chief, Council, Museum/Cultural Center, THPO, etc.) so we pick and choose what seems most important to us that we can do with volunteer resources."

If the appeal of their federal recognition is overturned and having a THPO becomes a priority, the process will not be as arduous as seeking recognition, however, it requires another application through the Tribal Preservation Program of the National Park Service (NPS). Among the requirements, the tribe must submit an official request from its governing authority, select a Tribal Historic Preservation Officer, and prepare a Program Plan identifying an advisory board and staff or go-to consultants who meet the Secretary of the Interior's professional qualifications standards. They must also submit maps and acreage of tribal lands, and explain how interested parties and other tribes with ties to their land will be involved.

WSSI cultural resources staff are prepared to assist our public and private clients with understanding the ramifications of federal recognition for Virginia tribes on their projects. For more information, please contact Anna Maas, Boyd Sipe, or John Mullen.

For more history on Virginia's Indians, visit the National Park Service.