QUEST FOR CASINO MAY HINGE ON ‘AN­CES­TRAL LAND’ CLAIM

Daily Press (Sunday) - - Front Page - By Joanne Kim­ber­lin and Gor­don Rago Staff writ­ers

NOR­FOLK — Add an­other hur­dle to the Pa­munkey tribe’s am­bi­tion to build the state’s first casino in down­town Nor­folk:

The Nanse­mond tribe is ob­ject­ing, say­ing the Pa­munkey are try­ing to re­write his­tory by claim­ing the par­cel they’re ne­go­ti­at­ing to buy from the city was once a part of Pa­munkey

“a n c e st r a l land.”

T h a t ’s a n im­por­tant des­ig­na­tion — a cru­cial piece of any tribe’s pe­ti­tion to get prop­erty ac­cepted into a fed­eral trust, a re­quire­ment for gam­ing or other tribal uses.

The prob­lem here, say the Nanse­mond, is the par­cel where the Pa­munkey in­tend to make their an­ces­tral claim — 20 acres of wa­ter­front next to Har­bor Park — is part of Nanse­mond traditional ter­ri­tory.

And if the Pa­munkey of­fi­cially claim it, the Nanse­mond prob­a­bly can’t.

Casino envy has noth­ing to do with it, the Nanse­mond say. By law, their tribe can’t en­gage in gam­ing any­way. Their com­plaint is more about her­itage and a de­sire to pro­tect their own fed­eral trust

dreams — the hope of some­day ac­quir­ing land for other com­mer­cial en­ter­prises or hous­ing, maybe even a clinic.

“The Pa­munkey In­dian Tribe’s claims are a threat to lo­cal his­tory as well as the in­tegrity of the process for putting land into trust,” the Nanse­mond wrote in an email to the news­pa­per.

Nanse­mond Chief Sa­muel Bass says no one con­sulted with his peo­ple be­fore Nor­folk Mayor Kenny Alexan­der pub­licly an­nounced the casino plans last month.

“When we heard the Pa­munkey were com­ing here,” Bass said, “it was like drop­ping a bomb on us.”

Now, the tribe has fired off protests to politi­cians, fed­eral ad­min­is­tra­tors, gam­ing di­rec­tors and the Pa­munkey — a swarm of let­ters that could hold con­sid­er­able sway in the world of fed­er­ally rec­og­nized tribes and In­dian gam­ing.

It’s a com­pli­cated uni­verse, thick with reg­u­la­tions and poli­cies, lit­tered with ex­cep­tions — any one of which could tilt the odds of a Pa­munkey casino ma­te­ri­al­iz­ing in Nor­folk.

When it comes to Vir­gin- ia na­tives, that world can also spin on some par­tic­u­larly dusty his­tory: the of­ten hazy writ­ings and maps of European colonists, and the du­el­ing in­ter­pre­ta­tions of those 400-year-old jot­tings to­day.

More hur­dles

The an­ces­tral claim is only one ob­sta­cle for the casino. Even with­out op­po­si­tion, a fed­eral trust ap­proval can be a log­jam. And per­mis­sion to game must be sought from the feds af­ter that. The whole process can take a decade.

None in Vir­ginia have ever man­aged it be­fore. To even be el­i­gi­ble, tribes must first at­tain the cov­eted sta­tus known as fed­eral recog­ni­tion — which opens the door to a host of ben­e­fits, in­clud­ing eco­nomic de­vel­op­ment op­por­tu­ni­ties like gam­ing, even in states where such gam­bling is nor­mally pro­hib­ited.

Vir­ginia has seven tribes who’ve got­ten fed­eral recog­ni­tion, but only re­cently. Six, how­ever — Nanse­mond in­cluded — ob­tained it through an act of Congress last year, which re­quired a con­ces­sion: No gam­ing.

Only the Pa­munkey have achieved it through the stan­dard route at the Bu­reau of In­dian Af­fairs — in 2015 — which makes them the only Vir­ginia tribe cur­rently in po­si­tion to even at­tempt open­ing a casino.

They’ve found fi­nan­cial back­ing through Ten­nessee bil­lion­aire Jon Yar­brough, but they’re in need of a suit­able lo­ca­tion.

Their reser­va­tion — one of only two in Vir­ginia — just won’t do for a casino. Its 1,200 acres, lo­cated in the coun­try­side about 40 miles east of Rich­mond, are al­ready in a state trust, which means no gam­bling is al­lowed there. Be­sides, it’s too far off the beaten path to draw enough cus­tomers.

The work-around is to pur­chase prop­erty in a prime lo­ca­tion, but that land must meet the stip­u­la­tions for a fed­eral trust: It must be a place his­tor­i­cally in­hab­ited by the Pa­munkey.

And there’s the rub. With no writ­ten his­tory of their own, tribal lega­cies must lean on the records of the early colonists. Those old maps place Pa­munkey turf in the gen­eral vicin­ity of their present-day reser­va­tion, more than 80 miles from Nor­folk. The south side of Hamp­ton Roads was marked as the land of the Nanse­mond and Ch­e­sa­peake tribes. Of those two, only the Nanse­mond re­main.

“This is our an­ces­tral land, our com­mu­nity and the foun­da­tion of our fu­ture,” the Nanse­mond chief wrote to the Nor­folk mayor.

But the Pa­munkey hang their claim on a broader view. Early set­tlers at Jamestown wrote that tribes in the re­gion were united un­der a fed­er­a­tion run by a para­mount chief named Powhatan whose realm, known as Tse­na­com­maca h, en­com­passed nearly all of east­ern Vir­ginia.

By ex­ten­sion — the same way all of to­day’s U.S. cit­i­zens are Amer­i­cans no mat­ter where in the coun­try they re­side — all na­tives in Tse­na­com­maca h were Powhatan, and able to lay claim to the en­tire re­gion.

The Pa­munkey take their ar­gu­ment even a few steps fur­ther, in­sist­ing their spe­cific tribe lived, farmed, hunted and left its foot­prints all across Powhatan’s em­pire, which riles the Nanse­mond.

“They have never had a pres­ence in this area,” the tribe wrote. “Is the his­tory of the whole state of Vir­ginia up for re­vi­sion?”

Ar­chae­ol­ogy can’t set­tle the dis­pute. A stone ar­row­head or piece of na­tive pot­tery un­earthed in Nor- folk looks much the same as any found in Rich­mond, said Mike Clem, an ar­chae­ol­o­gist with Vir­ginia’s Depart­ment of His­toric Re­sources.

“The tribes all had a sim­i­lar cul­ture,” Clem said. “They used the same kind of tools and ma­te­ri­als and pat­terns. There’s no way to tell if an ar­ti­fact is Pa­munkey or Nanse­mond.”

‘Mat­ter of his­tory’

A lot of money is rid­ing on the ques­tion of ex­actly who lived where four cen­turies ago. The Pa­munkey en­vi­sion a $700 mil­lion re­sort, spa and casino with a $200 mil­lion pay­roll and a bil­lion-dol­lar eco­nomic im­pact.

“We are ex­cited about the in­ter­est of the Pa­munkey In­dian Tribe in Nor­folk,” Mayor Alexan­der said in his an­nounce­ment Dec. 19.

Schol­ars are weigh­ing in. The mayor and the Pa­munkey point to Cas­san­dra Newby-Alexan­der, a his­tory pro­fes­sor at Nor­folk State Univer­sity. Her niche is African-Amer­i­can stud­ies, but she has done some re­search on colo­nial his­tory.

“I do not at all con­sider my­self to be an ex­pert on Vir­ginia In­di­ans,” she said, “but from my read­ing, the tribes did a lot of in­ter­min­gling. They traded with each other all over this re­gion. They shared the wa­ter­ways and hunt­ing grounds and trav­eled through the land­scape.”

Un­der that sce­nario, Newby-Alexan­der said, she can un­der­stand why the Pa­munkey con­sider the en­tire re­gion their home range, even if the tribe’s lit­eral home was only a small part of it.

“I guess it’s all in how you de­fine it,” she said, “but I be­lieve the gov­ern­ment rules call for look­ing at both.”

He­len Roun­tree’s re­search is more ex­ten­sive. A pro­fes­sor emer­i­tus of an­thro­pol­ogy at Old Do­min­ion Univer­sity, Roun­tree has been study­ing Vir­ginia In­di­ans since 1969, pro­duc­ing nu­mer­ous aca­demic books on the sub­ject.

“I’ve scoured the records,” she said, and found noth­ing that in­di­cates the Pa­munkey ever strayed far from their own ter­ri­tory, near their head­wa­ters of the York River.

Even com­mon lore of­ten has no solid roots, she said. An ex­am­ple: Mon­key Is­land in the Cur­rituck Sound. It’s long been held that the is­land got its name be­cause Pa­munkey In­di­ans fre­quented the place, but Roun­tree has never found any men­tion of such vis­its in au­then­tic records.

Crit­ics point out that Roun­tree is an hon­orary mem­ber of the Nanse­mond and could be bi­ased on that tribe’s be­half. She coun­ters that she’s also an hon­orary mem­ber of the Up­per Mat­taponi.

“I will not lie for any­body,” she said. “I call the records as I see them and let the chips fall where they may.”

One thing seems cer­tain: the far­ther land is from a tribe’s reser­va­tion, the harder it is to make a suc­cess­ful pitch for a fed­eral trust.

“It’s rare,” said Kathryn Rand of the In­sti­tute for the Study of Tribal Gam­ing Law and Pol­icy at the Univer­sity of North Dakota. “Legally and po­lit­i­cally, it’s very dif­fi­cult for a tribe to gain ap­proval for an off-reser­va­tion casino and it’s even rarer for the casino to come to fruition.”

Since the In­dian Gam­ing Reg­u­la­tory Act in 1988, fewer than 30 ap­pli­ca­tions have been sub­mit­ted by tribes for off-reser­va­tion casi­nos. Of those, less than a dozen got ap­proval to move for­ward and only a hand­ful are op­er­at­ing casi­nos, Rand said.

There are ways around the ad­min­is­tra­tive process. Congress can di­rect the in­te­rior sec­re­tary to ap­prove a trust ap­pli­ca­tion. Or a fed­eral court can rule the tribe has a valid claim to the land.

But typ­i­cally, Rand said, “there’s no doubt we’re talk­ing years.”

And then there’s the Nanse­mond’s griev­ance. In the past, the feds have given weight to such things.

So far, the Nanse­mond say, they’ve had no re­sponse from Nor­folk’s mayor. Sen. Tim Kaine, how­ever, has agreed to a meet­ing.

“We’re not at­tack­ing the Pa­munkey,” said Bass, the chief. “It’s a mat­ter of what’s recorded in his­tory.”

LI­BRARY OF CONGRESS

With lit­tle else to go on, Vir­ginia tribes must de­pend on the writ­ings and maps of early European colonists to doc­u­ment their own his­tory. This one is a copy of a map sketched by Capt.John Smith in the early 1600s.

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