Latest News: Seeking Recognition

WASHINGTON (Map, News) - As the 400th anniversary of the English arrival in Jamestown approaches, descendants of the Virginia Indian tribes who helped the colonists survive are seeking recognition from the federal government.

The House Natural Resources committee discussed a bill Wednesday that would recognize seven tribes, comprised of 2,500 members, living mainly in the Hampton Roads area. (The seven tribes are: Pamunkey, Tutelo, Chickahominy, Rappahannock, Monacan, Weapemeoc and Mattaponi.)

“It is almost criminal to be celebrating [the anniversary] without recognizing these tribes,” said U.S. Rep. Jim Moran, the Democrat representing Alexandria, Arlington and Fairfax counties who sponsored the bill.

Federal recognition would elevate the tribes to sovereign status, placing them on a government-to-government relationship with Washington. It would also allow them to receive money from the Bureau of Indian Affairs, which funds recognized tribes’ schools, health centers and economic development projects.

The process can take as long as 20 years and cost each tribe as much as $1 million, according to the committee staff’s notes.

History in Brief

 The name Tutelo, although by the English commonly used to designate a particular tribe, was by the Iroquois applied as a generic term for all the Siouan tribes of Virginia and Carolina, being applied more particularly to the allied tribes gathered at Ft Christanna (see Christanna Indians). They are first mentioned by Capt. John Smith in 1609 under the names of Monacan and Mannahoac. Lederer, in his exploration from Virginia into North Carolina in 1670, passed through their territory and mentions the names of Nahyssan (Monahassanough) and Sapon (Saponi). In their frontier position at the base of the mountains the Saponi and Tutelo were directly in the path of the Iroquois.
     Unable to with stand the constant attacks of these northern enemies, they abandoned this location some time between 1671 and 1701, and removed to the junction of Staunton and Dan rivers, where they established themselves near their friends and kinsmen, the Occaneechi, occupying two of the islands in the Roanoke immediately below the forks, the Tutelo settling on the upper one. How long they remained here is unknown; it is certain, however, that in 1701 Lawson found the Saponi on Yadkin river, N. C., and says that the Tutelo were living in the neighboring mountains toward the west, probably about the headwaters of the Yadkin. At this time, according to Lawson, the 5 Siouan tribes, the Tutelo, Saponi, Keyauwee, Occaneechi, and Shakori, numbered together only about 750 souls. Soon after Lawson's visit they all moved in toward the white settlements, and, crossing the Roanoke, occupied a village called Sapona town, a short distance east of the river, about 15 miles west of the present Windsor, Bertie county, N. C. Soon after this they removed and settled near Ft Christanna.
     In 1722, through the efforts of the Colonial governments, peace was finally made between the Iroquois and the Virginia tribes. In consequence the Saponi and Tutelo some years later moved to the north and settled on the Susquehanna at Shamokin, Pa., under Iroquois protection, later moving up the river to Skogari. Their chiefs were allowed to sit in the great council of the Six Nations. In 1763 the two tribes, together with the Nanticoke and Conoy, numbered, according to Sir Wm. Johnson, 200 men, possibly 1,000 souls. In 1771 the Tutelo were settled on the east side of Cayuga inlet, about 3 miles from the south end of the lake, in a town called Coreorgonel, which was destroyed in 1779 by Gen. Sullivan.
     The last surviving full-blood Tutelo known was Nikonha, from whom Hale obtained the linguistic material by which he determined the relation of the tribe to the Siouan stock. He died in 1871. It is believed there are still a few mixed-bloods in Canada, but the last one who could speak the language was John Key, or Gostango ('Below the Rock'), whose Tutelo name was Nastabon ('One Step'), and who died in 1898, aged about 80 years (Chadwick, People of the Longhouse, 19, 1897; Boyle in Ann. Archmol. Rep. Ontario, 55, pl. xviii, b, 1898). Lawson describes the Tutelo as "tall, likely men, having great plenty of buffaloes, elks, and bears, with every sort of deer amongst them, which strong food makes large, robust bodies." Nevertheless the evidence is clear that they were cultivators of the soil and relied thereon to a large extent for subsistence.

For centuries, tobacco has been considered essential to the practice of American Indian religions as well as to the preservation of Native American culture and tribal identity. In order to protect this religious exercise from government interference, religious use of tobacco by members of federally recognized tribes should be exempted from any comprehensive tobacco legislation.

The Supreme Court "has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause."⁽⁵⁾ The accommodation doctrine permits the government to single out religion for special treatment under certain circumstances, usually in order to lift a generally applicable regulation, such as tobacco regulation, that significantly burdens the exercise of religion. Such accommodation is currently required by the Federal Government under the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb. The accommodation doctrine ordinarily prohibits the government from creating exemptions that prefer one religion over others -- in other words, exemptions that cover one religious group or sect but not others. However, this general prohibition does not apply to regulations that accommodate the religious practices of federally recognized Indian tribes. Rather, the federal government has broad latitude to accommodate the religious practices of such tribes because of the special government-to-government relationship between the federal government and federally recognized tribes.⁽⁶⁾ This special relationship provides Congress with broad authority to enact legislation in furtherance of its obligations to Indian tribes, including measures recognizing and protecting the unique aspects of Indian tribes as "separate peoples." See White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 141 (1980). Tribal religious practices reflect one such aspect of tribes. In light of this, the federal government may ensure that its actions do not interfere with or destroy Indian religion and culture.

The special relationship between the United States and Indian tribes provides the underpinning of elements of a number of federal statutes, such as the American Indian Religious Freedom Act Amendments, 42 U.S.C. 1996a, National Historic Preservation Act, 16 U.S.C. 470, and the Native American Graves Protection and Repatriation Act, 25 U.S.C. 3001. These statutes, and others, recognize the singular characteristics of Native American culture and, therefore, contain provisions tailored to protect Native American cultural artifacts. A legislative exemption for the religious use of tobacco similarly recognizes some of the differentiating characteristics of Indian religion. The Department believes therefore that the special Federal-tribal relationship -- in conjunction with the accommodation doctrine -- empowers Congress to protect the religious use of tobacco by members of federally recognized tribes.

Finally, the history of attempts by the United States to curtail Indian religious exercise provide an important justification for Congress to exercise its authority to accommodate Indian religious exercise. The mandate to protect religious liberty is deeply rooted in this Nation's constitutional heritage. American Indian religions, regrettably, have not always enjoyed freedom of religion. For example, from 1894 through the 1930s, the federal government banned "[t]he 'sun-dance' . . . and all other so-called feasts assimilating thereto," as well as "[t]he usual practices of so-called 'medicine men.'" Regulations of the Indian Office 106 (1894). Against this background, it is important to incorporate protections for American Indian religious uses of tobacco in order to prevent unintended infringement on American Indian freedom of religion.

Mr. Chairman, that concludes my testimony. Again, thank you for inviting me to testify today.

1. An Indian tribe may also retain civil authority over the activities of non-Indians on non-Indian lands within its reservation, if the activities threaten the tribe's political integrity, economic security, or health and welfare. Montana v. United States, supra.

2. This certification process should focus on tribal governmental infrastructure, and not a comparison to state and local governments, because Indian tribes have distinct tribal government institutions based on their own unique histories.

3. Indeed, the States have often been hostile to tribal self-governance. United States v. Kagama, 118 U.S. 375 (1886); see also Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831).

4. In contrast, where Indian tribes market prepackaged goods, without adding reservation value, non-Indian consumers may be required to pay non-discriminatory state sales taxes. Washington v. Colville, 447 U.S. 134 (1980) (prepackaged cigarettes).

5. Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 334 (1987) (quoting Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136, 144-45 (1987)).

6. Morton v. Mancari, 417 U.S. 535 (1974) (preferences for federally recognized Indian tribes are subject to less exacting scrutiny under the Equal Protection Clause than racial or ethnic preferences because of the historical and political relationship between tribes and the federal government). Two Courts of Appeals have extended Morton's logic to the Establishment Clause context. In Rupert v. Director, U.S. Fish and Wildlife Service, 957 F.2d 32 (1st Cir. 1992) (per curiam), the First Circuit upheld an exemption for federally recognized Indian tribes from the federal criminal prohibition on the possession of eagle feathers. The Fifth Circuit, in Peyote Way Church of God, Inc. v. Thornburgh, 922 F.2d 1210 (5th Cir. 1991), similarly upheld exemptions for the Native American Church from federal and state laws prohibiting peyote possession.