Pamunkey federal recognition as 567th Indian tribe on hold, casino or not

Native American group battles for long-awaited rights, amid dispute over Virginia gaming facility plans

Pamunkey Councilmen Jeff Brown, left, and Gary Miles, hold a deer as their former Chief, Kevin Brown, presents it to Gov. Tim Kaine, second from left, during the annual tax tribute from the Virginia Indians in Richmond, Nov. 25, 2009.
Alexa Welch Edlund/AP/Richmond Times-Dispatch

At the White House Tribal Nations Conference in November, representatives from the 567 federally recognized American Indian and Alaska Native tribes mingled with President Barack Obama.

Chief Robert Gray of the Virginia-based Pamunkey tribe was among those in attendance at the annual government-sponsored meeting, which serves as a way to get issues on the Obama administration's policy radar, as well as allow officials from each tribe to meet one another.

But one thing differentiated Gray from his fellow chiefs: Bureau of Indian Affairs recognition is on hold for the Pamunkey.

Members of the group greeted settlers at Jamestown, and count Pocahontas as an ancestor. Their 1,200-acre reservation 40 miles east of Richmond was established by the English in the 17th century. While acknowledged by the state of Virginia, U.S. recognition for the Pamunkey is in limbo.

The Pamunkey push for federal recognition as a Native American tribe will unlock a slew of additional legal privileges for the group. Yet one of those rights — to build and run a casino — is also proving a sticking point in the long battle for full acceptance as a distinct people.

On Oct. 6, an appeal by an anti-gambling nonprofit — Stand Up for California— with the Interior Board of Indian Appeals (IBIA) froze the process just moments before the final determination issued in July would have taken effect. The request for reconsideration cited a lack of tribal authenticity and distinct Pamunkey identity.

New status could allow them to open a new gambling facility in Virginia, one of just 10 states without any casinos. The tribal leadership itself has been embroiled in controversy with the tribe’s 208 members, disagreeing about whether a casino would be good for economic development. Former chief Kevin Brown even lost his job over the dispute, for reportedly resisting calls by the tribal council to sign a casino deal with developers.

Meanwhile, MGM Resorts is said to fear the success of their new $1.3 billion National Harbor casino project in Maryland, across the Potomac river from Alexandria, could be jeopardized.

‘Look at any opportunity’

Stand Up for California and its director Cheryl Schmit have argued that the Pamunkey, whose land is surrounded by the Pamunkey River, have never functioned as a political unit, and are not descended from Indian ancestors. Their website says the group's mission is to “educate lawmakers, law enforcement, local governments and citizens about the cultural, economic and political impacts of state and tribal government gaming.”

The IBIA said the appellant is required to provide documentation of its “interested party” status — explain its own relevance to the case — before any ruling is issued that would either uphold or reverse recognition of Pamunkey federal status.

Within the Department of the Interior but separate from the Bureau of Indian Affairs (BIA), the IBIA hears appeals on wide-ranging legal issues concerning Native American tribes, land and administration. Its decisions can be appealed to U.S. district courts.

The state of Virginia has recognized 11 tribes, with a combined total of some 5,000 members. Only the Pamunkey and the Mattaponi have designated reservations, and no other Virginia tribe has federal recognition.

While recognition is indefinitely delayed pending IBIA proceedings, Chief Gray is confident the board will rule in the tribe’s favor. “The appeal has no substance,” Gray, who took over in late June, told Al Jazeera. “Our petition is one of the strongest they’ve ever seen.”

When asked whether the tribe would open a casino if given federal recognition, as suggested by documents uncovered by the Washington Post, he responded: “We’ll look at any opportunity we’re eligible to pursue. But I don’t know yet whether or not that’s a viable option,” he added, saying it would need to be discussed with the tribe’s members.

He stated that “health care, education, and help with pursuing economic opportunities” were the main benefits of recognition.

However, Chief Gray said that Schmit had filed earlier formal comments in partnership with MGM, adding he wasn’t sure why MGM was no longer involved in the process.

MGM Resorts spokesperson Yvette Monet said the company supports tribal gaming, and explained MGM’s change of heart: “We raised a concern about the Pamunkey recognition to urge careful study of all important factors in consideration of new applications for acknowledgment. The Pamunkey subsequently addressed that concern.”

Stand Up for California's Schmit has continued to press forward in opposition, arguing, “Why wouldn’t a tribe seek to open a casino? It is an economic engine that greatly enhances a tribal government's self-determination.”

“In the case of the Pamunkey, Interior did not follow its own requirements. Failure to do so creates an inequitable practice,” Schmit told Al Jazeera via email. “Moreover, it creates the potential of creating tribes for the sole purpose of a casino ‘for gaming investors.’”

‘Authority over its members’

In the original July recognition ruling, the Department of the Interior’s Assistant Secretary of Indian Affairs Kevin K. Washburn certified that the Pamunkey had “submitted more than sufficient evidence to satisfy each of the seven mandatory criteria for acknowledgment set forth in the regulations … meets the requirements for a government-to-government relationship with the United States.”

But prior third-party comment as a part of the long process for recognition included a joint statement in 2014 by Stand Up for California and MGM calling for standards that “are sufficiently 'objective' for establishing that an American Indian group exists as an Indian Tribe.” The government rebuked such arguments, declaring that the tribe does indeed have a history of functioning as a single polity.

The document states that “evidence in the record is voluminous and extraordinary...shows external observers identified the Pamunkey petitioner as an American Indian entity on a substantially continuous basis.”

Like many other tribes, many Pamunkey members have traditionally lived off of the reservation, and not all descendants of the tribe are registered as members today. However, the government rejected claims that assimilation by some Pamunkey people in any way lessened the group’s basis for federal recognition.

“The extensive record provided significant evidence of regular elections of chiefs and councils throughout the 19th and 20th centuries,” the determination reads. “The highly detailed records from the 20th century also demonstrate that the group managed its own affairs and exercised political influence and authority over its members.”

The Pamunkey reservation was historically referred to as “Pamunkey Island,” “Indian town,” and “Indian Island,” even if a significant contingent of non-Indians resided in the area. Non-Pamunkey Indians often intermarried with the group, but Pamunkey leaders maintained control in the settlement.

The government also said evidence “demonstrates that all of its current 208 members (100 percent) document descent from members of the historical Pamunkey Indian tribe.”

Nedra Darling, spokesperson for the Bureau of Indian Affairs, said her department had given the final determination but would not discuss the case pending the appeal.

‘A piece in the history’

Another BIA official, speaking to Al Jazeera on condition of anonymity because he was not at liberty to discuss the case, said that the ultimate question would concern whether the tribe would be able to put land into a trust for a future casino.

Citing National Indian Gaming Commission statistics, he said barely a dozen Indian tribes earned the vast majority of profits from tribal gaming nationwide, adding that the industry was far from a guarantee of instant wealth.

The Indian Gaming Regulatory Act of 1988 mandates federal recognition in order to open a gambling facility. But local governments sometimes fear the negative social impact, or the potential loss of property tax revenue on the land being used.

Tribal gaming can bring much-needed jobs to Indian communities, but the overall profitability often depends on location and is subject to competition from other facilities. Local media have speculated that the Pamunkey could possibly re-open the Colonial Downs racetrack facility with full casino operations.

Since 1978, when the current system of recognition began, the federal government has newly recognized 17 tribes and rejected petitions by 34. But the arcane bureaucratic gauntlet can take many years to navigate, delaying any expected benefit from Tribal Priority Allocation funds. This can be devastating for a small tribe struggling to survive.

“You had the power of the federal government aligned against you to eliminate your language, culture and way of life,” the BIA official said of Pamunkey heritage. “These were the tribes that met the Pilgrims and colonials, and had a piece in the history.”

In an annual Virginia tradition of Indian gifts in lieu of taxes over Thanksgiving, the Pamunkey and Mattaponi bring the governor two deer and a turkey. This year was no different.

“We are and always have been an Indian tribe,” said Chief Gray. “We’re proud of that fact and for all these years laid low but decided to seek federal recognition [even] when the process was difficult.”

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