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Prior to the founding of the firm, Charles Hobbs successfully litigated early court rulings that led to a Supreme Court decision that the Tribe retained its treaty hunting and fishing rights after Congress terminated the Tribe. Menominee Tribe v. United States, 391 U.S. 404 (1968).

General Memorandum 18-006

General Memorandum 18-006
President Signs Virginia Tribes Recognition Bill

On January 29, 2018, the President signed HR 984, the Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act of 2017 into law as PL 115-121. It extends federal recognition, with gaming restrictions, to six state-recognized tribes from the Commonwealth of Virginia, namely: the Chickahominy Indian Tribe; the Chickahominy Indian Tribe--Eastern Division; the Upper Mattaponi Tribe; the Rappahannock Tribe, Inc.; the Monacan Indian Nation; and the Nansemond Indian Tribe. Enactment of PL 115-121 is a landmark event that was years in the making.

Context. As the Report (S. Rept. 115-123) accompanying the Senate companion bill (S 691) explains, these six tribes were some of the first to come into contact with early English settlers but, because of events specific to Virginia history that resulted in the destruction of important records, they ultimately lacked the necessary documentation to successfully navigate the Department of Interior's (DOI) document-intensive federal acknowledgement process. There are a variety of avenues by which the federal government recognizes a government-to-government relationship with an Indian tribe, including treaties (prior to 1871) as well as legislation, executive orders, and administrative decisions. The Report further explains that federal courts may clarify the status of an Indian group. Of the 567 other tribes that are currently federally recognized, only 18 were recognized under DOI's administrative acknowledgement process, commonly referred to as the "Part 83 process" (see 25 C.F.R. Part 83).

Content. Each of the six tribes is the subject of a separate title in PL 115-121, which:
• Sets forth findings which detail the history unique to the tribe;
• Extends federal recognition to the tribe;
• Establishes that all laws applicable to federally recognized tribes will extend to the tribe;
• Creates a service area for the tribe;
• Makes the tribe and its members eligible for federal services and benefits provided to federally recognized tribes;
• Establishes that DOI will accept the last membership roll submitted by the tribe prior to enactment of PL 115-121 as the tribe's membership roll;
• Establishes the governing body of the tribe;
• Authorizes, at the request of the tribe, the Secretary of Interior to take land into trust for the tribe to establish a reservation, defines the counties where the land may be taken into trust and creates a three-year deadline to take the land into trust;
• Prohibits the tribe from conducting gaming activities "as a matter of claimed inherent authority or under the authority of any Federal law, including the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.) or under any regulations thereunder promulgated by the Secretary or the National Indian Gaming Commission"; and
• Establishes that nothing in the Act expands or reduces hunting, fishing, trapping or water rights enjoyed by members of the tribe.
• Finally, PL 115-121 limits the use of eminent domain to acquire lands in fee or trust for any of the six tribes recognized by the Act.

Eligibility for Federal Funding. The Bureau of Indian Affairs (BIA) budget, under the Tribal Government budget activity includes a sub-activity titled New Tribes. This sub-activity provides both minimum funding for BIA Regions or Agencies to provide support services for newly federally recognized tribes and provides each newly recognized tribe with $160,000 in tribal priority allocation (TPA) base funding per fiscal year for a period of three years "to establish and carry out the day-to-day responsibilities of a tribal government." With regard to funding for federal services from DOI (which includes the BIA budget), the Senate Report provides a Congressional Budget Office estimate that providing services to the six newly recognized tribes will cost DOI $30 million from FY 2018-2022. The estimate for services from the Indian Health Service (IHS) is $37 million for that same period. Finally, the Report explains that in addition to assistance from DOI and IHS, certain Indian tribes also receive support from other federal programs within the Departments of Education, Housing and Urban Development, Labor and Agriculture. The Report explains that because the six tribes in the Act were already recognized by Virginia, they were already eligible to receive support from these federal departments.

Legislative History. Before final passage and submission to the President for signature, HR 984 had been considered under Suspension of the Rules in the House, passed via a voice vote and then passed in the Senate without amendment via a voice vote. HR 984 was co-sponsored by the following Representatives: Wittman (R-VA-1st); Beyer (D-VA-8th); Scott (D-VA-3rd); Connolly (D-VA-11th); Taylor (R-VA-2nd); and McEachin (D-VA-4th). The Senate companion bill, S 691 was cosponsored by both Virginia Senators: Kaine (D-VA) and Warner (D-VA). Iterations of this legislation had been introduced, without success, since the 107th Congress.

Other Federally Recognized Tribes. On July 2, 2015, DOI issued a final determination recognizing the Pamunkey Indian Tribe in Virginia under the Part 83 process. See 80 Fed. Reg. 39144 (July 8, 2015). Enactment of PL 115-121 brings the total number of federally recognized tribes in the Commonwealth of Virginia to seven and the total number in the country to 573. These six newly recognized tribes, however, do not appear in the DOI's recent publication of the list of federally recognized tribes, which was published in the FEDERAL REGISTER the day after their recognition, but they will appear on any updated published list.

Please let us know if we may provide additional information about the Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act of 2017.

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Inquiries may be directed to:
Moriah O'Brien (mobrien@hobbsstraus.com)

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