Procedure for Petitioning

According to the Code of Virginia, § 2.2-401.01, the “Secretary of the Commonwealth may establish a Virginia Indian advisory board to assist the Secretary in reviewing applications seeking recognition as a Virginia Indian tribe and to make recommendations to the Secretary, the Governor, and the General Assembly on such applications and other matters relating to recognition.” 

Step 1.  Letter of Intent to Petition

Petitioners file a letter of intent to petition. The letter of intent should consist of a statement, signed by all the members of the group’s governing body, declaring that the group plans to apply for recognition by the Commonwealth of Virginia and intends to submit a petition to the Virginia Indian advisory board.  The letter of intent should be uploaded on the board’s website. The letter of intent can also be sent by mail to the:

Virginia Indian advisory board
Board Administrator
Post Office Box 2454
Richmond, Virginia 23218

Upon receipt of the letter of intent, the board administrator will send an acknowledgment to the group, notify in writing the group’s state Senator and Delegate, and post a notice of the group’s letter of intent on the board’s website. The board will record its receipt in the minutes of the next board meeting.

Step 2.  Submitting the Petition

The petition should consist of (a) a resolution, (b) an overview, and (c) supporting documentation. 

(a) The resolution, signed by all members of the group’s governing body and identifying the group’s lawyer (if any), should state that recognition is being sought.  The resolution should be uploaded to the board’s website. The resolution should contain the addresses and names of all the members of group’s governing body.

(b) The overview should be approximately ten pages, explaining (criterion by criterion) why the group should be recognized as an Indian tribe by the Commonwealth of Virginia. 

(c) Within the overview should be references to the “supporting documentation” contained within the petition. The supporting documentation should be grouped by the criterion they support.  When one group of records speaks to more than one criterion, they should be placed with the records for the lower-numbered criterion and cross-referenced in the overview to other relevant criterion.

An original copy of the petition including the resolution, the overview, and supporting documentation, should be submitted by mail to the Virginia Indian advisory board. The original copy will be kept in the Secretary of the Commonwealth’s office.

Any group petitioning the Virginia Indian Advisory Board is responsible for duplicating all the papers they submit and also for insuring they are complete and properly labeled.  “Properly labeled” means that each photocopied record has a full reference written or typed on it (e.g., U.S. Census 1850, Virginia, X County, Y District/Township, page ___, or for multi-paged accounts, e.g., Gilbert 1948, p. ___). The board or the workgroup may ask the petitioners for or accept additional documents at any time during the evaluation process. 

A petition for state recognition may be submitted at any time.  The review process may take a year or more. Petitioners wishing for recognition in a certain session of the General Assembly are advised to allow ample lead-time for the evaluation process and to find a patron for their resolution. The board’s process does not guarantee the General Assembly will vote on a resolution. The final decision is at the discretion of the General Assembly.    

A group may withdraw its petition, without prejudice, at any time.  To do so, a resolution signed by all members of their governing body must be sent to the Virginia Indian advisory board by email.  Upon receipt of that resolution, the petition will be considered withdrawn.

Step 3.  The Workgroup on State Recognition

After the board records its receipt of a letter of intent to petition, the board will appoint workgroup on state recognition composed of nonlegislative citizens at large who have knowledge of Virginia Indian history and current status, as stipulated in § 2.2-401.01(2)(c), to evaluate the petition for recognition.  The workgroup shall include at a minimum a genealogist and at least two scholars with recognized familiarity with Virginia Indian tribes. The workgroup must consist of at least three members but may not be more than five members. No member of the workgroup shall be associated in any way with the applicant. Upon appointment, each workgroup member will sign a conflict-of-interest statement, affirming that he or she will not serve in a recognition case if he or she has a bias for or against the petitioning organization. If workgroup members or members of the Virginia Indian advisory board identify a workgroup member as having any appearance of a conflict of interest in or bias against the recognition case currently being studied, that workgroup member must be asked to resign or must be removed by the Chair or a majority of the board. A replacement will be nominated by the Chair and ratified by the board. 

All board members and all members of the workgroup will sign a confidentiality agreement at the time a petition is submitted.  The merits of the contents of a petition will not be discussed by workgroup members outside of the public committee meetings until the committee recommendation goes to the Virginia Indian advisory board. The workgroup may engage experts, who may aid in the evaluation, but have no vote in recognition cases. In reviewing petitions, such consultants must agree in writing they will keep all material reviewed and reports rendered to the workgroup strictly confidential.  Petitions are subject to the Virginia Freedom of Information Act; as such, they are open to the public and are available for inspection and copying upon request, per § 2.2-3700 et seq. However, certain information may be included in Petitions, which will be held confidential by the board and the workgroup, when permitted and specifically excluded from the provisions of the Virginia Freedom of Information Act or by other federal or state statutes (see generally, § 2.2-3705.1 et seq. § 32.1-1 et seq). Documents in the group’s petition not open to the public as outlined in the Virginia Freedom of Information Act will not be open for public inspection. The board administrator will contact the Virginia Freedom of Information Advisory Council if a question arises over whether a document is open to public inspection.

The workgroup will normally evaluate only one petition at a time, unless competing petitions have been presented.  Newly received non-competing Petitions will be put into a queue, and the petitioners will be notified of their standing in the queue by notice of receipt.  Petitions will be numbered, examined, and voted upon in the order in which they are received.  If another petition is already in the review process, review of other petitions will be delayed until the workgroup completes its review of the earlier petition.  When the workgroup begins evaluating the subsequent petition, it will notify those petitioners.

If a subsequent, competitive petition is submitted from another group claiming to represent the same Indian community, during the time the first six months the workgroup is reviewing a petition, the workgroup may table both petitions and request the Virginia Indian advisory board notify the two groups and ask they resolve their differences and reach an accord and submit one petition. If the matter is settled resulting in a new petition, or if one group withdraws its petition, the new or remaining petition will become active and be placed at the end of the queue and the petitioning group will be so notified. If the competing groups cannot resolve their differences and reach an accord, the workgroup may consider both petitions simultaneously, or it may proceed with the first submitted petition. When evaluation of its petition begins anew, the groups will be so notified by the workgroup.

After ninety (90) days from the start of evaluation of a petition, the petitioning group may request a meeting with the workgroup to discuss the progress of their petition.  The workgroup will review the petition and make a recommendation to the Virginia Indian advisory board within 360 days from the time the workgroup convenes, unless extraordinary circumstances intervene. The burden of asserting extraordinary circumstances shall be upon the Virginia Indian advisory board, and failure of the board to timely assert extraordinary circumstances shall allow a Petitioning entity to seek direct recognition action by the Virginia Legislature. In such circumstances the board shall not take a position for or against such direct action for recognition. The vote will be decided by a simple majority of the board members. The Committee may recommend: (a) acceptance, (b) rejection, (c) tabling without prejudice, or (d) that the full board review the workgroup minutes and the petition, and vote directly without a workgroup recommendation being made. 

Step 4.  Workgroup Recommendation to the Board

A detailed written report on the recommendation will be prepared by the workgroup. This report will be sent to all members of the board, with notice to the petitioning group, at least thirty (30) days prior to the board meeting at which the recommendation will be presented.  The workgroup will choose a spokesperson, who will make an oral presentation and answer questions of the written report at the board meeting. The petitioning entity will be given an equal amount of time for written and oral presentation(s) before the full board regarding the recommendation.

If the workgroup recommends that the board reject the petitioning group, the workgroup must explicitly explain why they are making that recommendation.

After it reaches a decision, the workgroup will present its recommendation to the Virginia Indian advisory board at the next board meeting.  The board will notify the group seeking recognition when its Petition will be discussed. Discussion of the petition and recommendation may extend to two or more board meetings.  In addition, advice from the Office of the Attorney General may be sought before a vote is taken.

Step 5.  Voting by the board

The board may agree or disagree with the recommendation of the workgroup.  The board may vote to recommend, to reject, to table the petition without prejudice, or to advise the Secretary of the Commonwealth that board chooses not to make any recommendation for or against the petition. Within ten (10) workdays of the board’s vote on a petition: (1) the petitioners will be sent a notification in writing by email and (2) the Delegate and the Senator, from the petitioners’ district, will each be sent a copy of the notification.

If the board chooses to recommend or not recommend the petitioning group be granted state recognition, a copy of the workgroup’s report with personal information redacted will be included with the official recommendation to the House and Senate Clerk, the Governor, and the Secretary of the Commonwealth.

After any petition has been voted upon, the original copy of the petition will remain on file, absent any information the Attorney General’s office determines is legally shielded from continued public disclosure, at the office of the Secretary of the Commonwealth until it is scheduled for permanent retention at the Library of Virginia. 

Resubmission

If the vote for recognition by the Board is negative, the petitioning group may submit a new petition, if new and substantively different documentation has been discovered. There is no deadline on such a resubmission.

Recognition Criteria

In carrying out its mandate from the General Assembly, the Virginia Indian advisory board will utilize the following criteria.

All criteria will be considered and reviewed as guidance, but no single criteria standing alone will be the basis for granting or denying a recommendation from the Virginia Indian advisory board to the Governor and the General Assembly. All criteria must be addressed in some fashion.

  1. Demonstrate descent from an historical Indian group(s) that lived within Virginia’s current boundaries at the time of that group’s first contact with Europeans.
  2. Show that the group’s members have retained a specific Indian tribal identity.
  3. Trace the group’s existence within Virginia from first contact to the present.
  4. Provide a complete genealogy of current group members, traced as far back as possible.
  5. Show that the group has been socially and culturally cohesive Indian community, at least for the twentieth century and farther back if possible, by organizing separate churches, schools, political organizations, businesses, cultural groups or the like.
  6. Provide evidence of contemporary formal organization, with full membership restricted to people genealogically descended from the historic tribe(s).

Learn more

Contact

Benjamin Hermerding

Secretary of the Commonwealth’s office
Post Office Box 2454
Richmond, Virginia 23218

benjamin.hermerding@governor.virginia.gov
804-692-0102