House Republicans torpedo bills giving Virginia tribes state consultation rights

State process would have mirrored federal one for sovereign tribal nations

By: - March 7, 2022 12:02 am

Members of the Chickahominy tribe lead a friendship dance during the First Thanksgiving Festival at Berkeley Plantation in Charles City County. (Scott Elmquist/ Style Weekly)

Virginia law will continue to not require state agencies to consult with the commonwealth’s seven federally recognized tribes on projects and plans that could affect them after House Republicans killed two proposals to enshrine the right in statute this session. 

“I just can’t get myself comfortable yet with the legislation as it is at this time,” said Lee Ware, R-Powhatan, during a meeting of the House Chesapeake Subcommittee in February. Del. Chris Runion, R-Rockingham, described the bill as “not quite mature yet.” 

Last week, with little discussion, the same subcommittee struck down the last remaining proposal, from Sen. Jennifer McClellan, D-Richmond, to require tribal consultation at the state level. The vote was deadlocked — five Republicans opposing the bill and one, Del. Buddy Fowler, R-Hanover, joining with Democrats in its favor — but under legislative rules, that was enough to scuttle it. 

Every member of the Senate had supported the idea. 

Proponents of the legislation say that not only is early consultation practical because of its ability to uncover problems linked to projects before millions of dollars and years have been invested in them, but it’s a basic recognition of the sovereignty the seven tribes gained when the federal government recognized them in 2015 and 2018. 

“At the end of the day, it’s a pretty steep learning curve for the commonwealth and the tribes in understanding the full implications of tribal sovereignty,” said Chief Stephen Adkins of the Chickahominy Indian Tribe. 

Marion Werkheiser, an attorney with Cultural Heritage Partners who represented the seven tribes in negotiations over the legislation, said they would be back next year with the same proposal. 

“It would be a no-brainer for the state to notify local governments when they’re planning projects in their backyard and give them a seat at the table, but the House Republicans seem unwilling to extend the same courtesy to the tribal nation governments,” she told the Mercury. 

In the meantime, whether tribal consultation will occur at the state level regardless of the failure of the legislation remains unclear. One of the last executive orders issued by former Democratic Gov. Ralph Northam was November’s EO 82 requiring state consultation and ordering certain agencies to develop policies to do so within three months. 

Gov. Glenn Youngkin has not rescinded that policy, but his office did not answer specific questions about whether the administration still intends to engage in tribal consultation or if the governor intends to keep Northam’s executive order in force. Secretary of the Commonwealth Kay Coles James, after a meeting with tribal chiefs earlier this year, has also indicated she intends to serve as the state’s liaison with the tribes, according to Werkheiser. 

“Secretary James and the entire administration remain dedicated to engaging and relationship building with Virginia’s tribes,” said Macaulay Porter, a spokesperson for Youngkin. “As we work towards mutual understanding, we look forward to continuing this vital relationship.” 

A new era of federal recognition 

Even in the modern era, the relationship between Virginia’s government and the state’s tribes has been checkered. 

Although Virginia’s tribal nations were the first to make contact with English colonists in the early 17th century, they struggled to obtain federal recognition due to the decades-long crusade of former Virginia Bureau of Vital Statistics Chief Walter Plecker

Plecker, a White supremacist who helped pass Virginia’s Racial Integrity Act of 1924, claimed there were “no descendants of Virginia Indians claiming or reputed to be Indians who are unmixed with Negro blood.” In his estimation, every Indian in Virginia was legally Black — and under his orders, their birth and death certificates were altered to classify them as such. 

“Dr. Plecker has compelled an unestimated number of Virginians of mixed blood to be registered, willing or unwilling, as Negroes,” a 1935 profile of Plecker in the Richmond Times-Dispatch noted. “The so-called Indians of Virginia have particularly felt his heavy hand, for he has successfully prevented large numbers of them from attending White schools and marrying into the White race, on the ground of Negro blood.” 

While Virginia has long since abandoned Plecker’s policies, the “documentary genocide” he committed, in the words of a later bureau director, left the state’s tribes bereft of the documentation needed to gain federal recognition. 

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“Through no fault of their own, the records they need to meet the stringent and difficult requirements for federal recognition are simply not available,” then-U.S. Sen. George Allen, R-Va., told a congressional committee in 2002. 

It wasn’t until 2015 that the Pamunkey became Virginia’s first Indian tribe to gain federal recognition. Six more tribes — the Chickahominy, Eastern Chickahominy, Upper Mattaponi, Rappahannock, Monacan and Nansemond — were recognized by act of Congress in 2018

That changed status was present in Adkins’ mind this February when he testified before Virginia’s House Chesapeake Subcommittee on House Bill 715, the House vehicle for a state tribal consultation law from Del. Paul Krizek, D-Alexandria. 

 “This is kind of a signal event in the life of the Chickahominy Indian Tribe,” Adkins told lawmakers. “It’s the first time I’ve addressed this august group as a head of state.” 

Federal recognition, in addition to granting the tribes legal sovereignty, also brought with it the right to federal consultation: the requirement for federal agencies to, in the words of a 2011 U.S. Environmental Protection Agency policy, “ensure meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” 

“What we’re trying to accomplish is having meaningful discussions with the tribes on actions or decisions EPA is going to take and considering their comments during our process, prior to making a final determination,” said Brian Hamilton, the tribal program coordinator for EPA Region 3, of which Virginia is a part. EPA has been consulting with Virginia tribes since 2015, when the Pamunkey gained federal recognition. 

Generally, consultation begins with a letter to a tribal chief, where the EPA briefly explains an action or decision being considered by the agency that could have an impact on a tribe’s resources or interests. If the tribe wishes to consult with the agency, meetings are arranged, and EPA pledges to respond to the nation’s comments and to notify it of any decision ahead of the public. 

There are limits to what consultation can do: The tribal nations cannot unilaterally halt an action or decision, said Hamilton. Instead, consultation is intended to act as a channel of communication so that any problems can be identified early enough to make changes possible.

Jessica Phillips, the environmental director for the Eastern Division of the Chickahominy Indian Tribe, told state lawmakers in February that in her experience with federal consultation, tribes “only request consult on a very small fraction” of projects. 

“Federal consultation with federally recognized tribes has a huge impact to the long-term success of projects,” she said. 

Exactly what changes have been triggered by federal consultation isn’t publicly available: because the tribes have sovereign status, information about specific consultations is confidential. 

In all consultation, “the sovereign nation principle is paramount,” said Hamilton. “That really drives consultation, because consultation is above public comment. It’s really above EPA to state interactions.” Consultation, he said, “is sacred between the federal government and the sovereign nations.” 

Rassawek and a push for state consultation 

In Virginia, much of the push to supplement federal consultation with a state process came from an ongoing conflict over the siting of a pump station in Fluvanna County

In 2015, the Virginia Department of Environmental Quality signed off on a water withdrawal permit for the James River Water Authority, a joint venture between Fluvanna and Louisa counties. 

Officials were eyeing development at Zion Crossroads, a once-sleepy unincorporated community at the intersection of Interstate 64 and Route 250. Over the past decade, Zion Crossroads had boomed. A Walmart distribution center was built, as well as a residential development centered on a golf course and a host of commercial properties. 

The water supply, however, was inadequate to meet the demand officials projected the area would see as it grew. Consequently, the authority hatched plans to construct a pump station and a pipeline to branch off from it at a site known as Point of Fork where the James and Rivanna rivers meet. 

But seven years later, the pump station has yet to be built. 

The reason is Rassawek — the historic capital of the Monacan Indian Nation that appeared on a map drawn by John Smith in 1612 and that the tribal nation says lies at the planned pump station site at Point of Fork. After the Monacan gained federal recognition in 2018, they were included in federal consultation for the project through the U.S. Army Corps of Engineers. 

Their opposition to the project has proved a formidable obstacle. More than 12,000 objections were lodged with the Corps during a public comment period on plans, and in August 2020, the James River Water Authority asked the Corps to halt the project. Since then, it has been evaluating an alternative site.  

The Rassawek saga is the prime exhibit for why the tribes need to be involved with state planning earlier in the process through consultation, Werkheiser has argued. 

“In that case, DEQ permitted that project years before the Monacans even knew about it and had the chance to raise objections,” she told House lawmakers in February. “The water authority would have saved a lot of money and a lot of time if this bill had been in place.” 

Chief Frank Adams of the Upper Mattaponi said consultation wasn’t about being “anti-development,” pointing to tribal efforts to develop some of their land in King William County. And representatives of the tribal nations were adamant that they deserved to have early input on activities that could impact their service areas. 

“We’ve never been at the table before when developers want to do projects, and I think it’s just fair and it’s a respect of our sovereignty to have the tribes present when these projects are being introduced to the state so that we have full and informed information,” said Chief Anne Richardson of the Rappahannock during a hearing last week. 

As with federal consultation, the state consultation proposed this year would not have given the tribal nations veto power, except in a single instance: when the action would result in the disturbance of a burial site of someone culturally affiliated with one of the federally recognized tribes. Werkheiser said the Virginia Department of Historic Resources already seeks consent from tribes in such cases. 

Nevertheless, several House Republicans appeared uneasy with the proposal, which Ware said “has the potential in my judgment to have a very wide-ranging potential effect on a variety of permitting processes with state agencies.” 

After the final defeat of the consultation legislation last week, Adkins said he thought it had failed because of a lack of understanding. 

“I think if folks fully understood it, it would have passed,” he said. “I’ll be back next year, saying, ‘Look, this is the right thing to do, and let me help you understand why it is the right thing to do.’” 

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Sarah Vogelsong
Sarah Vogelsong

Sarah is the Mercury's environment and energy reporter, covering everything from utility regulation to sea level rise. Originally from McLean, she has spent over a decade in journalism and academic publishing and previously worked as a staff reporter for Chesapeake Bay Journal, the Progress-Index and the Caroline Progress. She is the recipient of a first place award for explanatory reporting from the Society of Environmental Journalists and has twice been honored by the Virginia Press Association as "Best in Show" for online writing. She was chosen for the 2020 cohort of the Columbia Energy Journalism Initiative and is a graduate of the College of William and Mary. Contact her at [email protected]

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