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Will Virginia tribes finally get their say? • Virginia Mercury [1]

['Samantha Willis', 'More From Author', 'April']

Date: 2024-04-02  

Amid the partisan polarization that defined much of Virginia’s 2024 General Assembly session, a measure that would codify the state’s commitment to consult with federally recognized Native American tribes before issuing permits for projects that could impact their cultural and historic resources won bipartisan support in both chambers and made it into the legislature’s budget.

House Bill 1157 cements actions laid out in a 2021 executive order by former Gov. Ralph Northam, including: creating an ombudsman to facilitate dialogue between the tribes, the governor and state agencies; establishing a process to notify tribes of projects requiring permits from the state; and requiring state leaders to seek and consider the tribes’ input on those projects.The Department of Environmental Quality and the Department of Conservation and Recreation, among others, would need to consult with tribes before permitting projects, under the legislation.

This bill could save everyone — developers, businesses, state agencies and the tribes — a lot of time and money, Chief Frank Adams of the Upper Mattaponi tribe told me. Adams is one of the tribal leaders who have been pushing this effort forward for the past two years. A bill to give Virginia tribes consultation rights was shot down by House Republicans in 2022, although it won unanimous support in the Senate.

“We’re not asking for power to stop the permitting process. We are asking to be notified when departments in Virginia, like [the Department of Environmental Quality], are considering permitting a development or project. We need to be brought into the process early on, so we can speak up about any potential conflicts we see,” Adams said.

Imagine finding out secondhand, through TV or newspaper reports, that a state agency gave the OK for a mineral mine to be built bordering your backyard. (Side note: Some of us don’t have to imagine, since our communities of color, historically, have been the usual spots where projects fraught with environmental risks that white people don’t want in their neighborhoods develop.) Before many of us could even consider whether the mine would be profitable, or what it would mean for our environment and quality of life, we’d want to know why no one consulted us about it when the plan was first hatched. Shouldn’t the people who stand to be impacted most deeply by projects get a say in their development?

Virginia’s tribes know their lands and sacred sites far more intimately than developers and regulators do. Of course they should be afforded the opportunity to weigh in on what happens there, before the first permit is issued or the first shovelful of dirt is dug.

Adams emphasized that the Mattaponi and other federally recognized tribes are “not anti-development, not anti-business.” Their goal is not to block projects that could boost local and state revenues or create jobs.

“It’s actually the opposite. We don’t mind development but we want the opportunity to say, ‘This project is on or near our burial ground, but if you try to move it a mile down the road it won’t be a problem.’”

When that conversation doesn’t happen, and projects end up encroaching on sites of special meaning and memory, Adams said “yes, we will eventually protest, and it would cost developers and others lots of money and time. We don’t have to do it that way.”

Perhaps the most striking example of the backwardness of Virginia’s current process of notifying tribes after a project is well underway is Rassawek.

When the James River Water Authority, led by Louisa and Fluvanna Counties, announced its plans to build a pump station, water pipeline, and water treatment plant at Point of Fork in 2014, it sent shock waves through the Monacan Indian Nation. Carbon dating showed that the Monacan’s ancestors had occupied the capital town of Rassawek as early as 3,000 B.C. and Captain John Smith marked it in his 1612 map of Virginia. By the 1930s, researchers determined that the ancient Rassawek was likely located at present-day Point of Fork, and all doubts were removed when the Department of Historic Resources in 1980 officially pinpointed Rassawek’s location, after a gas pipeline’s construction at Point of Fork disturbed Native American burials there.

The Monacans weren’t given the human remains revealed by the pipeline’s construction, according to a report by Cultural Heritage Partners, PLLC. At this moment in Virginia, “If you’re a developer that needs to move a burial ground, you can go to the Department of Historic Resources to get a permit, or go to a circuit court judge to get an order to move the cemetery,” Cultural Heritage Partners attorney Marion Werkheiser said. The more some things change, the more others stay the same.

DEQ issued a permit for the James River Water Authority’s project in 2015. The Water Authority didn’t notify the Monacan Nation of its plans for Rassawek until 2017. What followed was a protracted battle between the tribe and local and state authorities that finally concluded in 2022, when the Water Authority gave up their project plans at Rassawek and instead chose to develop a water intake and pump station on an alternative site.

Just how long have Virginia Native American communities been asking for the type of consideration and respect that HB 1157 is designed to give them?

“I don’t want to be cute about it, but this goes back to the treaty the tribes made with the governor of Virginia in 1677,” answered Werkheiser.

Adams said, “We’ve always wanted the state to consider our beliefs and our traditions more. That goes back to the beginning, for many of us.”

It shouldn’t take that amount of time and the eyes of the world watching for Virginia agencies to take culturally competent, decently human actions to preserve sites that are extraordinary in their rareness and importance to Native American nations and Virginia history.

I hope, mightily, that Gov. Glenn Youngkin — who now wields the power to reject this long-sought measure or sign it into law — agrees.

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