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New rule requires consultation with Virginia tribes about development

Indian leaders say it’s a step toward fulfilling the commonwealth’s centuries-old obligations

Leaders of Virginia’s seven federally recognized Indian tribes look on as Gov. Ralph Northam (D) signs an executive order in Richmond on Nov. 18 directing state agencies to consult with tribal nations in Virginia when making permitting decisions. (Jack Mayer/Office of the Governor of Virginia)

Gov. Ralph Northam (D) on Thursday signed an order requiring state agencies to consult with Virginia Indian tribes before making decisions that affect land, waterways and other natural sites important to Indigenous peoples.

That means tribal leadership will have a say in development that could disturb, for example, ancient burial grounds before showdowns between bulldozers and protesters, as played out near the Standing Rock Sioux Reservation in North Dakota over the Dakota Access pipeline.

The executive order, among the governor’s last before he leaves office in January, stops short of granting tribes the power to veto permits, but leaders in the national Indigenous communities rights movement say it is an important first step in their fight for self-determination.

“This executive order is a historic step forward in advancing the government-to-government relationship between Tribal Nations and states in this country,” Fawn Sharp, president of the National Congress of American Indians, said in a statement. She said the order honors “the inherent right to free, prior, and informed consent,” an international human rights principle.

For seven Virginia tribes, the order is the latest acknowledgment of their status as sovereign nations within the state’s borders since they achieved federal recognition, a designation that makes them eligible for housing, education and health-care funding, as well as coronavirus relief dollars.

In three years, tribes — Chickahominy, Eastern Chickahominy, Rappahannock, Upper Mattaponi, Monacan and Nansemond and, previously, the Pamunkey — have set up offices and hired professionals to administer the funds, but they have at times struggled to be taken seriously by state and local officials.

Northam’s order requires state agencies — such as the departments of conservation and recreation, environmental quality and historic resources — to set up a process to formally consult with the tribes in certain localities when considering permit applications that could affect environmental, cultural and historic resources.

Before signing the order in Richmond on Thursday afternoon, Northam acknowledged that most tribes in the state had their land seized and reservations disbanded, forcing them to spend centuries trying to maintain their identities despite discriminatory policies.

The racist Racial Integrity Act of 1924, which said birth certificates could be labeled only “white” or “colored,” effectively erased Indians from the public record, and later segregation separated families as some sent their children to public school in northern states.

“It is an understatement to say the United States and state governments have too often failed to live up to the terms of agreements made with the tribes who were here first,” Northam said. “But we continue working to do a better job in treating Virginia’s tribes with the respect they deserve.”

At the signing, G. Anne Richardson, the fourth-generation chief of the Rappahannock Tribe, said the order represents a new start after centuries of hardship.

The order affirms the state’s long-standing obligations, including a peace treaty with the English government in 1677 that was ignored after independence.

“This order helps advance the relationship between the Commonwealth and our tribes, after the United States recognized our sovereignty in 2018, and it affirms the Commonwealth’s obligations under treaties stretching back more than 300 years,” Richardson said in a statement.

Known as “first contact tribes,” the Powhatan Nation tribes were the first to meet the Europeans who landed in Jamestown in 1607 and are descendants of Pocahontas, the daughter of Chief Powhatan.

After receiving federal recognition, tribal leaders had to quickly learn to administer multimillion-dollar budgets. They have used federal funds to set up emergency operation centers, open health centers, distribute food, provide rent and mortgage payment assistance, and establish potable water systems for people with faulty sewer systems.

Unlike the sprawling reservations home to many Native Americans in the West, most Virginia tribal members are concentrated among rural and suburban counties northeast of Richmond, in the Hampton Roads region along the Chesapeake Bay and in the Shenandoah Valley. Others are scattered across the country.

At least 13 states require tribal consultation, but the order would create a tribal ombudsman and process to recommend permits that the state could deny without consent from the tribes, which Marion Werkheiser, an attorney at Cultural Heritage Partners who represents six of the Virginia tribes, said is a first in the United States.

One such project could be a water pump station the James River Water Authority seeks to build on top of Rassawek, the Monacans’s capital city, which was designed by the National Trust for Historic Preservation as one of the most endangered historic landmarks in the country. The onetime trading center, probably home to several hundred Native Americans, was placed on a map by Capt. John Smith at what is now the village of Columbia in Fluvanna County.

The Monacan are seeking to move the project to an alternative location — a request that under the new rule could have been broached at the onset of the process several years ago.

The order applies to a list of actions, including environmental reports for major state projects and oil or gas drilling operations in Tidewater, burial permits for relocation of human remains and cave collection permits as well as major federal air, waste and water permits.

Even with a formal process established, however, it’s unclear how the incoming administration of Gov.-elect Glenn Youngkin (R) will view the order.

A spokesman for Youngkin did not immediately respond to a request for comment.

Del. Paul E. Krizek (D-Fairfax), who is general counsel for the nonprofit Running Strong for American Indian Youth, said lawmakers may not know where Youngkin stands until legislation reaches his desk.

Krizek, who will be in the minority next year, would also like to see a state Secretariat for Tribal Affairs, and a state law enshrining the right to deny a permit without the tribes’ consent.

“I don’t think you’ll be able to get anywhere if there isn’t consent,” he said in an interview Thursday. “We’ll see. That’s another reason maybe we need legislation in the future.”

The order signing comes during Native American Heritage Month.

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