Clinic Helping To Update State Law To Reflect Tribal Recognition

A new chapter in the centuries-old history of Virginia’s American Indian tribes may soon be written into state law, with help from a University of Virginia School of Law clinic.

The State and Local Government Policy Clinic, under the supervision of Professor Andrew Block, is supporting a new bipartisan commission tasked with conducting a comprehensive review of Virginia law to look for areas where revisions are needed to account for the federal recognition that seven Virginia tribes have received over the last 10 years. Through the clinic, second-year students Mary Guardino and Thomas Ross are serving, in effect, as the commission’s research staff. In that capacity, they have provided legal and policy analysis and helped develop and draft legislative proposals for the commission’s consideration.

“Our work for the commission is, hopefully, a win-win,” Block said, “Thomas and Mary are helping both tribal leaders and legislators on the commission to advance vitally important policy objectives while also learning about the legislative process through real hands-on experience.”

While Virginia has recognized certain tribes at the state level for a number of years, it wasn’t until 2015 that the Pamunkey Indians became the first to be federally recognized.

Three years later, in 2018, six more tribes gained federal recognition: the 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.

However, numerous areas of the state code were not revised to account for this new status. So, in 2022, state Del. Paul Krizek, at the request of tribal leaders, proposed legislation establishing a commission tasked with conducting a comprehensive review of Virginia law to look for areas where revisions are needed. Due to administrative delays, members were not appointed, and the commission never sat, until earlier this year.

The commission, now chaired by Krizek, is comprised of 19 members, including 10 General Assembly members from both chambers and political parties; eight non-legislative citizen members, with seven of those representing each of the federally recognized tribes; and one ex officio member.

The commission, which first met over the summer, now aims to propose legislation for the 2025 General Assembly session to update the state’s code, a historic step for the commonwealth and Virginia’s tribes.

“We have a government-to-government relationship between the state and tribes, and it’s important that that’s reflected,” Krizek said.

Chief Anne Richardson of the Rappahannock Tribe, who serves on the commission, said that the ongoing work to update Virginia law is personally rewarding, given the history of tribes in the commonwealth.

“To understand that the state wants to work with us, wants to create the proper relationship, is really gratifying to me and for the generations before me that did not have that opportunity,” she said.

Richardson recalled applying for funding through the state’s Land and Water Conservation code a few years ago, only to discover that tribes didn’t qualify. While her tribe was able to resolve that specific issue, the experience highlighted how much work was needed to ensure the state code properly acknowledged the recognition of tribes by the U.S. government.

“We realized there were a whole lot of other issues that needed to be addressed and tweaked for the federal tribes,” she said. “And so that was where the advocacy came in for the birth of the commission.”

Code Updates Expected To Benefit Tribes, State

Going into this project, Guardino and Ross said they did not have much knowledge of the intricacies of Indian law but were eager to take on work that could have real impact.

The commission’s work, Ross said, “seemed like a great bipartisan way to make actual change that means something in the commonwealth.”

Block, Guardino and Ross presented before the group at a September hearing, detailing many of the issues that needed to be examined, such as inconsistencies in how tribes were referred to in the Virginia code and how other states handled these matters.

At a subsequent hearing in November, the students laid out a series of proposals to address several points in state law that needed to be updated, such as how to refer to a federally recognized tribe and how to define tribal citizenship.

Also critical, the group said, is to ensure these definitions are used consistently in all relevant areas of the state code.

“The fact that the tribes in Virginia have received federal recognition is really exciting, and it indicates a special legal status and authority,” Guardino said. “Because the Virginia code does not currently reflect that status in many places, our hope is that greater precision and use of definitions will reflect both the authority and opportunity that come with federal recognition.”

At the November hearing, the students also addressed the issue of tribal sovereignty, proposing that the legislature include a statement recognizing the sovereign status of the tribes. They emphasized that while a sovereignty clause would not confer new powers to tribes, it would affirm their inherent status as sovereign nations, a status now officially recognized by the federal government. This recognition and affirmation, the students also said, is long overdue.

In addition, “A lot of people are confused about what that means and how, practically, a sovereign entity can interact with the commonwealth of Virginia,” Ross said. “So having a statement there gives the tribes something to point to when in discussions with other government officials.”

Thomas Badamo, assistant chief emeritus with the Nansemond Indian Nation and a commission member, said he hopes that discussions about sovereignty will help bring about “clarity” in future dealings between tribes and municipalities and government agencies.

“If this is just an exercise in semantics, then we will not have accomplished much. But if people will actually start to grasp what sovereignty is, and it gets written into the state code, that’s really a big step toward reciprocity and a true government-to-government relationship,” he said.

The updates to the code could also provide significant benefits to the commonwealth at large, said attorney Marion Werkheiser of Cultural Heritage Partners. Werkheiser serves as general counsel to several of the tribes and worked on the legislation that established the commission.

For example, she said, federally recognized tribes have more authority to develop businesses on tribal land, which could have a significant economic impact for local communities.

“They’re going to be job creators. They’re going to be bringing business into Virginia which is going to make all Virginians better off,” Werkheiser said of the state’s tribes, citing the example of a company launched by the Nansemond Indian Nation that is helping to provide high-quality health care to Native and non-Native patients. Richardson highlighted the potential of new infrastructure initiatives, including expanding broadband access.

“We want to be able to create a relationship between the state and the tribes that allows that kind of economic development to occur for the benefit of everybody and for the tribes,” Werkheiser said.

A Chance To ‘Get It Right’

In addition to talking with legislative members of the commission in preparing their recommendations for the commission, Guardino and Ross had many conversations with tribal leaders, which, the students said, was a critical aspect of their research.

“They helped to educate us about their priorities and history so that we can best serve them and make sure their interests are actually highlighted in the General Assembly,” Ross said.

The students were also assisted by Professor Michael Doran of UVA Law, an expert in Indian law.

Block said that he and his students see their mission as one of service to the tribes and the commission.

“The tribes, in particular, worked for many years to finally get federal recognition. We feel lucky that we can do this small piece of work to help keep the momentum going,” Block said.

Krizek, who has provided legal services for many years to a Native American youth charity, said he wants the tribes’ interests to drive the commission’s agenda.

“I’m taking my cues from them. I’m not telling them what to do. I’m listening and making sure that we’re responsive to their needs,” he added.

A separate measure introduced by Krizek, which was enacted earlier this year, aims to further strengthen the relationship between Virginia and the tribes by requiring that the state consult with them regarding the impact of certain permits and proposed projects on their communities and resources, a step that Richardson said was “really helpful and really needed.”

“It’s imperative that we have a seat at the table, finally, to learn about those things in advance,” she said.

The commission will now turn its attention to finalizing legislative language, then work to get a bill passed in the General Assembly.

Once the General Assembly session starts in January, and to support the commission’s bills, Guardino and Ross will go to Richmond to lobby members and testify before committees, according to Block.

“It will not only be important work for the tribes and the commonwealth, but hopefully a great learning opportunity for them as well,” he said.

While the upcoming session will be short, Krizek said he thinks the scope of their initial proposals is “not too much to bite off.”

After this initial round of code updates and, the commission members and clinic students hope, getting a bill signed into law, the commission will shift its focus toward additional policy issues in the code affecting the tribes, said Krizek.

For Guardino and Ross, the experience has given them an appreciation for the process, and history, behind the legal codes they are learning.

“We study laws in class, but we don’t always see how they get put on the books in different states. And so, I think I have more questions in my other classes when there are laws that are unclear, and I want to know more of the history,” Guardino said.

For the tribes, the journey to federal recognition, and to state acknowledgment of that status, has been a long, difficult road, but one they hope will lead to a brighter future for the next generations of American Indians in Virginia.

“I think about my own kids and my grandkids — that they won’t have to go through the struggle that we’ve gone through for our recognition,” Richardson said.

Badamo added, “If we get it right now, it should alleviate some of the burden moving forward.”