Nov. 19, 2021
The Rappahannock Tribe is a sovereign indigenous nation with political, geographic, and cultural roots in the Chesapeake region that date back thousands of years. When the English arrived on this continent, the Rappahannock were self-governing, and the formation of the United States did not abolish the Rappahannock’s inherent right to exercise sovereignty over its people, land, and resources.[1] Through treaties and agreements, however, the Tribe ceded certain rights to the English, which later passed on to the United States.[2] In return, the United States has a trust responsibility to the Rappahannock that includes an obligation to consult with the Tribe on actions that may affect the Tribe’s aboriginal lands, resources, and exercise of self-government. This responsibility is recognized under both domestic and international law.[3]
The U.S. Supreme Court has said that the trust responsibility charges the United States with “moral obligations of the highest responsibility and trust” and, therefore, its conduct in dealing with tribal nations should “be judged by the most exacting fiduciary standards.”[4] The trust responsibility obligates the United States to avoid actions that negatively affect tribal resources, even when the federal action takes place off-reservation.[5] Out of this trust responsibility arises the duty to consult with tribes to determine whether and how federal actions will affect them.[6] The federal government has recognized its consultation responsibility through the enactment of various statutes, regulations, policies, and executive orders.
As a successor to the English Crown, the Commonwealth of Virginia also has recognized a trust relationship with the Rappahannock Tribe.[7] Consequently, state agencies have a similar responsibility to consult with the Tribe to ensure maximum protection of the Tribe’s resources and sovereignty. Consultation will ensure that the Commonwealth and the Tribe maintain a harmonious relationship and effectively manage limited resources.
Consultation with federally-recognized tribes regarding their cultural patrimony and impacts of projects on contemporary tribal populations is also legally required for federal agencies under a variety of legislation, including the National Historic Preservation Act, the National Environmental Policy Act, Section 4(f) of the Department of Transportation Act, and a series of other laws and regulations. Depending on the specific legislation, federal agencies are required to avoid, minimize, and/or mitigate adverse effects. The extent and manner of this consultation has been enumerated in a series of Executive Orders and court cases.
This policy proactively addresses the procedures and approaches that the Rappahannock Tribe would like federal and state agencies to follow when engaging with the Tribe and describes the context needed for consulting parties to adequately consider the Tribe’s perspective and relationship towards any proposed project. Elements of this policy are based on a review of the National Council of American Indians’ 2012 Updated Tribal Consultation Policy Report and existing consultation policies of federal agencies, particularly the Department of Interior, the Department of Housing and Urban Development, and the Environmental Protection Agency.
The Tribe asks that project proponents, overseeing agencies, and state historic preservation offices review the following background material as an early step in engaging with the tribe on their project, in order to fully understand the Rappahannock Tribe’s potential interests.
The Rappahannock Tribe has 500 enrolled tribal citizens and is governed by a Tribal Council of ten members. The Tribe was incorporated in 1921, was recognized by the Commonwealth of Virginia in 1983, and was recognized by the United States in 2018 via the Thomasina E. Jordan Tribes of Virginia Federal Recognition Act. . The service area of the Tribe, defined in the Thomasina E. Jordan Act as the places eligible for the delivery of federal services to tribal members, is comprised of King and Queen County, Caroline County, Essex County, and King William County, Virginia. Counties where the Tribe is eligible to have land in fee held in trust by the federal government (and therefore establish a reservation) include King and Queen County, Stafford County, Spotsylvania County, Richmond County, Essex County, and Caroline County if the land was owned on or before January 1, 2007; and any land owned by the Tribe in King and Queen County, Richmond County, Lancaster County, King George County, Essex County, Caroline County, New Kent County, King William County, and James City County. King and Queen County awarded the Rappahannock Tribe tax-exempt status on land associated with our Tribal Center in 1997.
Ancestral lands and areas of concern to the Tribe include a much broader area than the recognized federal service area or areas where the Tribe is eligible to have lands in trust. The Tribe has a complex pre- and post-Contact history, and it has an interest in a variety of regions within and beyond Virginia based on this history and the location of its contemporary tribal citizenship. Compared to the James River watershed, much less is known regarding the Rappahannock River valley’s occupation during the Paleo-Indian, Archaic, and Early Woodland periods. By the end of the Middle Woodland period, populations of native people in the Rappahannock River valley appear to have grown more extensive and coalesced into persistent occupations. When John Smith explored the Rappahannock River in 1608, he found at least 43 Indigenous communities along the watershed, most located along the river’s northern shore[8]. Many Rappahannock towns are listed on the John Smith map. In addition, it is clear that members of the Rappahannock also traveled with some frequency to towns on the James River, such as Quiyocohannock upstream from Jamestown, where the Rappahannock werowance met with Christopher Newport.[9]
Limited archaeological evidence suggests that the ancestors of the current tribe were in the Rappahannock River valley by 10-12,000 years ago. Temperatures were cooler, sea level lower, and the rich resources so characteristic of the river valley today were still off in the future. The distribution of diagnostic projectile points in the river valley from this early period suggests that the river valley was populated by people arriving from the west. These early groups made a living through plant gathering and foraging and hunting. By 1200 BCE, population was much higher and, while gathering, foraging, and hunting remained important, domesticated crops were also being planted and harvested (although not corn, an import from Mexico ca. 900 CE). Sometime ca. 200 CE, another migration appears to have happened in the Chesapeake region, with migrants arriving from the east, presumably from what is now the Northeast US. These migrants are believed to be the ancestors of the region’s Algonquian groups, although these migrants no doubt mixed with people already in the river valley. By now, the river valley was looking not unlike it does today, with rich, extensive marshes that would have been attractive to people. Based on an increase in the number of sites, population appears to be increasing and especially so after the presumed arrival of corn in the region. By 1200 CE, new decision-making structures were evolving – evident in the archaeological patterning of houses, ceramics, lithics, ceremonial places, and town settlements.
While the seventeenth century was a period of great removal and disruption for Virginia’s native people, the Rappahannock River valley became a location where, for a time, Rappahannock tribes and tribes from the Potomac River inhabited and lived separately from colonizers as a means of maintaining our own lifeways. By the middle of the seventeenth century, English colonists were moving into the river valley, displacing existing groups. During the seventeenth through nineteenth centuries, native cultural groups combined and reformed several times. Tribal oral history also references that some segments of the Rappahannock Tribe moved northwards into southern Maryland, where they encountered the Piscataway. Between the 1650s to the 1690s, the Rappahannocks were moved once by the British government and moved themselves several times. These relocations took the Tribe from a patented reserve on the border of King and Queen and Essex counties, to a ridgeline reservation in the area of present-day Indian Neck, to Portabago in northern Essex County, and back to Indian Neck.[10] The contemporary citizens of the Rappahannock Tribe are the descendants of multiple Contact-era tribes including the Rappahannock, Morattico (Moraughtacund), Portobacco, and perhaps the Doeg. Most live in Essex, Caroline, and King and Queen Counties.
Themes important to the Rappahannock include our traditional watershed along the Rappahannock River, and also periodic travels to the James River watershed. The Rappahannock River is of paramount importance to the Tribe’s history, traditional cultural practices, and connection to the land of our ancestors. The name Rappahannock means “the people who live where the water rises and falls.” Early English accounts refer to the native people along the Rappahannock River fishing, collecting oysters, making use of animals and plants in the marshes, using the river as a connector to other places, harvesting during warm months and making greater use of inland camps during the winter. The Rappahannock River was not only an important region of subsistence, it was also an area where tribal members gathered medicinal plants and held feasts and celebrations. The River served as the focal point of the tribal community, with settlements and ceremonial places, including Native cemeteries, situated in view of towns and therefore part of a town’s everyday life. This connection continues to the present day. The Tribe stewards the River and strengthens its connection to the River through programs such as Return to the River, which brings tribal youth to historic sites along the river and teaches Traditional Ecological Knowledge (TEK).
There has also been limited documentation, in need of further investigation, regarding Rappahannock travels to the Mattaponi and James Rivers. As a result, the tribe is particularly concerned with any projects or developments which threaten the health of waterways and streams within the watersheds of the Rappahannock, Mattaponi, and James Rivers but also potentially in other areas of the mid-Atlantic. The Tribe also understands our pre- and post-Contact tribal history to be understudied, and areas of consultation interest may shift or expand in response to new information.
Of particular concern for the Tribe are sites associated with human remains, village/town habitation, and sacred or ritual sites. The Tribe believes that unearthing our ancestors from the ground represents a violation of the wishes of our ancestors, their human dignity, and the connection between the Rappahannock and our traditional lands. Archaeological investigation of sacred or ritual sites, impacts to critical viewsheds, or ongoing construction and development impacts around these sites, represents a similar violation to Rappahannock cultural patrimony and spiritual practice.
Another issue vital to the Tribe’s interests is the collection and treatment of herbal treatments and the practice of traditional herbalism. The Tribe’s practices regarding plant-based medicine was observed by Frank Speck in the 1920s-1940s during his extensive work with the tribal community[11]. Stewardship of native local flora and the transmission of this knowledge to younger generations is another strong tribal priority.
Issues that impact the Tribe today include many challenges common to rural areas. Lack of communications infrastructure including broadband wireless, transportation funding for nearby roads, and the need for adequate investment in schools are all critical issues of importance to the tribe. The Tribe is also concerned about industrial and agricultural pollution in the area of modern tribal members. Finally, many of the roads in Indian Neck are historic and are routes along which tribal members were forced to move in response to English encroachments, so road improvements should consider these tribal removals when analyzing and assessing historic properties and significance.
Depending on the significance, time period, and particulars of a given consultation project, the Rappahannock’s geographic area of interest is variable and must take into account a project’s potential to impact the three watersheds of interest to the Tribe, historical and prehistoric migrations, trade routes, contemporary tribal concerns, and spiritual beliefs. In many cases, one or several meetings are necessary to determine the project’s impacts on the Tribe.
The Tribe asks that, prior to a face-to-face meeting with our representatives, representatives of federal agencies or project proponents familiarize themselves with the tribe through review of the following documents, which provide important historical and modern context into the Tribe and provide a common frame of reference for future discussions:
The Tribe has additional materials they are willing to share with qualified researchers, including the dissertation that Ed Ragan wrote on tribal history, and the text of his forthcoming book, Where the Water Ebbs and Flows: Place and Self among the Rappahannock People. The Tribe also has contacts with several other researchers and has access to other sources, and is happy to provide additional recommended sources with which to refer as is appropriate for specific projects.
Consultation requires more than the transmission of letters and notifications to tribes regarding ongoing projects. The Rappahannock Tribe prefers that communications be proactive, ongoing, and relationship-based. The Tribe has the following requests for communicating important information regarding projects that impact Tribal interests, including but not limited to federal or state consultation regarding project impacts during environmental review, outreach involving legislation with impacts to Virginia native communities, and other issues that require consultation.
Tribes have broad discretion regarding identification of projects of interest to them or that have impacts on modern tribal communities or historic tribal resources. As discussed in the background section of this policy, the Rappahannock Tribe has a variety of geographic areas of interest and our consultation practices in these areas may change over time.
We welcome the opportunity to discuss whether particular projects might be in the geographic area of interest for the tribe and invite federal agencies to review the materials provided in the background section above as additional context regarding Rappahannock interest in their project.
Because the Tribe has a clear interest in reviewing some types of environmental and cultural mitigation projects, the Rappahannock Tribe is in the process of developing a tribal monitoring program. Such cultural resource monitoring programs are at the discretion of federal agencies, and have commonly been embraced by infrastructure projects, private project proponents, and similar entities as a way of clarifying ongoing relationships and handling tribal engagement on substantial endeavors. The Rappahannock Tribe seeks federal or private partners in developing this type of program, which will provide more clarity within the review process, build corporate social responsibility, and increase project proponents and consultants’ understanding of Tribal priorities. Such a monitoring program would:
Tribal monitors might assist cultural resources review for resources like traditional cultural landscapes, which are often challenging to identify and record without considerable experience with tribal oral history and spiritual practices. In addition, they are essential in some cases for developing a robust consultation practice on certain types of projects, particularly given the tribe’s finite capacity as it undergoes the federal recognition transition. Monitoring programs recognize that tribes and tribal members have unique expertise and perspectives which should be engaged within the project mitigation process in the way that other forms of environmental consultants are.
The Tribe asks federal and state agencies to consider the potential role of tribal monitors in facilitating consultation for their projects, especially for substantial projects with considerable impacts. Development and utilization of such a tribal monitoring program would be highly valued by tribes as an approach to mitigating impacts and demonstrating a commitment to government-to-government consultation.
To a considerable degree, legal documents and guidance govern the experiences tribes have in the consultation and mitigation processes. The Rappahannock would like to see these documents developed along the following principles:
The Tribe welcomes engagement from the Commonwealth of Virginia and from local governments regarding projects that have the potential to affect the Tribe, particularly in Lancaster, Richmond, and King William, Essex, Caroline, and King and Queen Counties. The following types of initiatives are of particular focus for the Tribe as important for consultation, regardless of their federal involvement:
The Tribe is interested in working with State and local governments on partnerships that elevate capacity and services in core tribal areas.
[1] See Worcester v. Georgia, 31 U.S. 515, 559 (1832).
[2] See Treaty of Middle Plantation (1677) listed in the Thomasina E. Jordan Act; Treaty with Lancaster County (1653); Treaty with [Old] Rappahannock County (1656).
[3] See, e.g., United Nations Declaration on the Rights of Indigenous Peoples.
[4] Seminole Nation v. United States, 316 U.S. 286, 297 (1942).
[5] See Pyramid Lake Paiute Tribe of Indians v. Morton, 354 F. Supp. 252, 256 (D.D.C. 1972).
[6] Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707, 721 (8th Cir. 1979).
[7] See Op. of the Va. Attorney Gen., No. 00-076 (Sept. 28, 2001).
[8] Strickland, Scott M., Julia A. King, G. Anne Richardson, Martha McCartney, and Virginia Busby. 2016. Defining the Rappahannock Indigenous Cultural Landscape. Report prepared for the National Park Service Chesapeake Bay, the Chesapeake Conservancy, and the Rappahannock Tribe of Virginia. St Mary’s College of Maryland.
[9] Thomasina E. Jordan Act of 2018, S 691 17-23.
[10] Strickland, Scott. 2019. Reconstructing the Neighborhood of Indian Neck, Virginia. Presentation at the Mid-Atlantic Archaeological Conference. Ocean City, MD. March 23, 2019.
[11] Speck, Frank, Royal B. Hassrick, and Edmund S. Carpenter. 1942 Rappahannock Herbals, Folk-Lore and Science of Cures. Proceedings of the Delaware County Institute of Science, Vol. X, No. 1.
