Does Virginia Really Need a “Tribal Consultation” Ombudsman?

by James A. BaconThe Washington Post

takes note today of three bills affecting Virginia’s sovereign Indian tribes moving through the General Assembly. One would update state code to reflect federal recognition of the tribes. One would make tribes eligible for grants from the Virginia Land Conservation Fund. And third would give federally recognized tribes, in the WaPo’s words, “a voice” in the permitting process for development projects affecting their ancestral lands. After clearing the state Senate 40 to 0, the legislation was blocked by a subcommittee in the House of Delegates.

Last year former Governor Ralph Northam issued an executive order requiring state agencies to notify Virginia’s seven federally recognized tribes of projects affecting their lands. State Bill 482 represents an effort to codify the order, which subsequent governors could reverse, in state law.

The logic of Republicans in blocking the measure was less than clear. The WaPo article quotes Delegate Lee Ware, R-Powhatan, as saying “It has the potential, in my judgment, to have a very wide-ranging … effect with a variety of permitting processes with state agencies.”

That’s not much of an explanation, but I expect there was more to Ware’s thinking than made it into the WaPo article. More important than the bureaucratic procedure it proposes to address, the bill raises the issue of what citizenship means for American Indians.

SB 482 called for creating a Tribal Consultation ombudsman to “facilitate communication” with federally recognized Tribal Nations on environmental, cultural, and historical reviews and permits, and require the Department of Environmental Quality to consult with the Tribal Nations regarding permitting policies and procedures. States the bill:

The policy shall define an appropriate means of notifying federally recognized Tribal Nations in the Commonwealth based on tribal preferences, ensure that sufficient information and time is provided for the Tribal Nations to develop informed opinions about the proposed action, and establish procedures for the Department to provide feedback to the Tribal Nations to explain how their input was considered.

It’s hard to get exercised one way or another about notifying tribal authorities of a project — a pipeline, say, or an electric transmission line — that might affect them. The permitting process is so lengthy and the requirements for public notification so extensive that tribal leaders already get a heads-up by availing themselves of the rights due to all American citizens.

But the bill adds yet another procedural step to a ponderous process, and creates another tool for gumming up bureaucratic reviews, which, I conjecture, is Ware’s concern. Environmentalist groups have perfected the art of utilizing lawfare to defeat infrastructure projects by dragging out the permitting approvals endlessly. A rule requiring notification of the Indian tribes — as tribal entities, not indigenous Americans as private citizens — adds one more potential hurdle.

But there’s an even bigger question. As the WaPo wrote in a previous article, Northam’s executive order represented an important step in the tribes’ 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. …

“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,” [G. Anne Richard, chief of the Rappahannock tribe] said in a statement.

Yeah, I know we’re supposed to feel guilty for the sins committed by our ancestors against the ancestors of modern-day Indians. (More about that in another column.) Sorry, but the Indians lost their bid to maintain their independence. Guess what, the Mormons settling Utah lost their bid to maintain their independence, too. So did the Southern states that seceded from the union in 1860. That’s the way it goes. Get over it. Why isn’t it sufficient to say that native Americans are as American as everyone else, and they’re entitled to the full rights of all American citizens — but no more?

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19 responses to “Does Virginia Really Need a “Tribal Consultation” Ombudsman?”

  1. James McCarthy Avatar
    James McCarthy

    JAB – A significant number of indigenous peoples also enjoy sovereignty in addition to citizenship. Overlooking that reality fails to appreciate the troubled history between indigenous people and the colonists who absorbed their lands under policies like Manifest Destiny. Your cavalier dismissal of the interests of Native Americans sounds simply like “elections have consequences.” It is not necessary to feel guilt to be cognizant of broken treaties and dispersal from home lands. Such does not even require critical race theory analysis. The legislation in question might indeed be impractical but the sentiments of the affected tribes are not.

    1. Stephen Haner Avatar
      Stephen Haner

      Clearly the Fourth Circuit and now FERC need even more check points or tools to use to kill off energy projects to keep Virginia a second rate economy. Testimony from Chief Keep It In the Ground will help immensely.

      1. Nancy Naive Avatar
        Nancy Naive

        The interests of those, misaligned to mine, are not interests.

  2. how_it_works Avatar

    “Does Virginia Really Need a “Tribal Consultation” Ombudsman?”

    Does some politically-connected Virginian really need a do-nothing government job that pays well?

  3. Nancy Naive Avatar
    Nancy Naive

    “Yeah, I know we’re supposed to feel guilty for the sins committed by our ancestors against the ancestors of modern-day Indians.” But you don’t.

  4. Nancy Naive Avatar
    Nancy Naive

    Jamestown survivors wrote of being taken in that winter of 1607, “We were never more merry, nor fed on more plenty of good oysters, fish, flesh, wildfowl, and good bread, nor never had better fires in England than in the dry, warm, smoky houses of Kecoughtan.” They so grateful they showed their gratitude with a genocide.

    Victims of genocide could always use an ombudsman.

    1. Lefty665 Avatar

      It is very difficult to communicate with the “victims of genocide”.

      1. Nancy Naive Avatar
        Nancy Naive

        not all victims die. The fact that someone can deliver a “victim impact statement” at murder sentencing affirms that.

        1. Lefty665 Avatar

          “Genocide is the intentional destruction of a people, usually defined as an ethnic, national, racial, or religious group. Raphael Lemkin coined the term in 1944,[1][2] combining the Greek word γένος (genos, “race, people”) with the Latin suffix -caedo (“act of killing”).[3]” Wikipedia

          It ain’t a cide (geno, homo, etc) if it’s not killing, by definition.

          “Victim Impact Statement” is a misnomer that confuses the naive. The indefinite antecedent befuddles the unwitting.

          1. Nancy Naive Avatar
            Nancy Naive

            Since the Neanderthal, how many were 100% effective? Please tell the people with tatooed numbers on their arms that they’re not victims. Of course, on BR the Tutsi weren’t t.

          2. Lefty665 Avatar

            The survivors were victims of the Nazis.

            The dead were victims of genocide because they were targeted as a religious group and killed.

            The victims of genocide are hard to communicate with because they are dead.

            This is simple english, not rocket science. Please try to keep up.

          3. Nancy Naive Avatar
            Nancy Naive

            Depends on whether you’re speaking of the act, or the crime. Go figure it out then come back.

          4. Lefty665 Avatar

            I figured it out in my original comment. You on the other hand are either incapable of figuring it out, or do not want to. Have a naive night nancy.

          5. Nancy Naive Avatar
            Nancy Naive

            Aw, shut up and go to bed. Hard to believe a fine upstanding rightist such as yourself narrowing the victim pool.

            Never mind, I’ll go to bed and you can carry on one handed… as usual.

          6. Lefty665 Avatar

            Tsk, tsk, testy aren’t we? Sweet dreams.

  5. tmtfairfax Avatar

    Alaska did it the best by establishing corporations for members of indigenous groups. Or at least, that’s what a number of corporation owners told me when I was in Alaska last fall.

  6. Lefty665 Avatar

    the Indians lost their bid to maintain their independence.

    Yes they did, and old Bacon himself had a hand in that.

    With the Indian Citizenship Act of 1924 all Indians became US citizens. That changed the relationship of individuals and tribes. It would seem that obviated the need to deal separately with tribes.

    Virginia tribes still pay tribute in game to the Governor pursuant to the treaty of 1646. You can tell how things are going between them by whether they clean the deer before presenting them to the Gov.

  7. Dick Hall-Sizemore Avatar
    Dick Hall-Sizemore

    It is not “it sufficient to say that native Americans are as American as everyone else, and they’re entitled to the full rights of all American citizens — but no more” because federal law, U.S. treaties, and the U.S Supreme Court provide Native Americans a large degree of sovereignty over their recognized tribal lands. See McGirt v. Oklahoma.

    1. tmtfairfax Avatar

      There is a level of sovereignty over recognized tribal lands. It’s real.

      The problem I have is the word “affecting.” One can make all sorts of arguments that something affects something else.

      For example, WMATA and Virginia Tech have been proposing to redevelop the West Falls Church Metrorail Station. The land is in Fairfax County. But it’s right next to the site of the former George Mason HS, which is now in the City of Falls Church. The City has built a new school and is redeveloping the old site. While the County and the City are working together, the City has approved development that seems more dense than the County will approve. There are a number County residents that are upset that the County has no say in what the City allows as the added density could well negatively affect traffic

      But if you were to use the “affecting” standard, Fairfax County would have a veto over what the City of Falls Church allows and vice versa.

      A federally recognized tribe rightfully has a level of control over what’s built on its land. But why should it have control over what is built on land outside the reservation? And that’s the goal of the wild enviros – to have more roadblocks as opposed to allowing tribal governments to function within their boundaries.

      As far as we formerly owned this land goes, I had a significant number of ancestors who lived in Donaghmore in County Tyrone for generations. And a few distant relatives living there now. Applying the formerly controlled logic, I should have a say in what happens in Donaghmore.

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