Now that the federal government has recognized the Pamunkey tribe, do Virginia state and local police lose their authority to enforce the law on the Pamunkey reservation?

Plain-English summary

In October 2015, the U.S. Department of the Interior officially recognized the Pamunkey Indian Tribe as a federally recognized Indian tribe. That recognition raised a question for Virginia law enforcement: on land that belongs to a federally recognized tribe, do state and local police lose their normal authority to enforce state law? In federal Indian law, tribal lands that are "Indian country" are generally outside state jurisdiction.

State Police Superintendent Colonel W.S. Flaherty asked the Attorney General whether the Pamunkey recognition changed the 2001 AG opinion that had said state and local police had full authority on the Pamunkey and Mattaponi reservations.

Attorney General Herring concluded that the 2001 opinion remained correct. Federal recognition of the Pamunkey tribe did not transform the Pamunkey reservation into federal "Indian country," because the land doesn't meet the federal-law test.

The U.S. Supreme Court in Alaska v. Native Village of Venetie Tribal Government (1998) settled the federal test for "Indian country." Tribal land qualifies only if (1) the federal government set the land apart for Indian use, and (2) the land remains under federal superintendence. Neither requirement applies to the Pamunkey or Mattaponi reservations. The lands were set aside by the British Crown in the Indian Treaty of 1677, with the Commonwealth of Virginia standing as the successor. The lands remain under the superintendence of the Commonwealth, not the federal government.

Venetie itself rejected the argument that "Indian country exists wherever land is owned by a federally recognized Tribe." The Supreme Court was clear that "it is the land in question, and not merely the Indian tribe inhabiting it, that must be under the superintendence of the Federal Government." Federal health, education, and welfare benefits to a federally recognized tribe don't count as "active federal control over the Tribe's land sufficient to support a finding of federal superintendence."

So Virginia state and local law enforcement keep their authority on both reservations. The 2001 AG opinion's reasoning, anchored in state law and the Indian Treaty of 1677, survives the federal recognition of the Pamunkey tribe.

The Mattaponi tribe was not federally recognized as of 2016. The analysis applies the same way to Mattaponi.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Federal recognition statuses of Virginia tribes have continued to evolve since 2016. Verify the current legal landscape before relying on any specific rule mentioned here.

Common questions

So Virginia state troopers can still arrest people on the Pamunkey reservation?

Under this opinion, yes. They retain the same authority on the reservations as elsewhere in the Commonwealth to serve legal process, arrest warrants, subpoenas, and to investigate misdemeanors and felonies.

Does the Pamunkey tribe have its own police force or court?

Federal recognition can come with tribal sovereignty powers, but those don't displace state jurisdiction over land that isn't federal "Indian country." Internal tribal governance is separate from state law enforcement on the same land.

What's the legal test for "Indian country"?

From Venetie: (1) the federal government must have set the land apart for Indian use, and (2) the land must remain under federal superintendence. Without both, federal "Indian country" status doesn't attach, and state jurisdiction applies.

What about the Mattaponi tribe?

The Mattaponi tribe was not federally recognized as of 2016. The reservation was set aside by the same 1677 treaty and is also under state superintendence. The analysis is identical.

Could things change?

Yes, in two ways. First, if federal recognition status changes for additional Virginia tribes. Second, if the federal government took new action to bring the reservation lands under federal superintendence, that would change the analysis. Neither was true as of the opinion's issuance.

Background and statutory framework

The 1677 Indian Treaty between the British Crown (Virginia's predecessor sovereign) and the Pamunkey and Mattaponi tribes set aside reservation lands. The treaty has continued to govern the lands ever since, with the Commonwealth of Virginia standing in the Crown's role. The lands are held in fee simple by the Commonwealth, subject to the exclusive use and occupancy of the tribes.

The Commonwealth's obligation under the treaty is to extend "the same protections of the law . . . to members of the tribes as are extended to nonmembers." That obligation was the basis for the 2001 AG opinion (2001 Op. Va. Att'y Gen. 36) concluding that state and local law enforcement had full authority on the reservations.

The federal statutory framework for "Indian country" is 18 U.S.C. § 1151, which defines the term:

"(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same."

Cohen's Handbook of Federal Indian Law notes that the modifying phrase "under the jurisdiction of the United States Government" in subsection (a) was likely added to exclude state-governed Indian reservations from federal protection.

Venetie (1998) is the controlling Supreme Court decision. The Court unanimously rejected the argument that federal recognition alone makes land "Indian country." It tied the definition to historical Supreme Court precedents (Donnelly, Sandoval, Pelican, McGowan) requiring both federal set-aside and federal superintendence.

The Pamunkey reservation, set aside by the Crown rather than by federal action, and superintended by the Commonwealth rather than the federal government, fails the Venetie test even after federal tribal recognition.

Citations

• Va. Code Ann. § 2.2-505 (AG advisory opinions)
• 18 U.S.C. § 1151 (definition of "Indian country")
• 18 U.S.C. §§ 1152, 1153, 3242 (federal criminal jurisdiction in Indian country)
• 80 Fed. Reg. 39,144 (July 8, 2015) (Pamunkey federal recognition determination)
• Indian Treaty of 1677
• Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998)
• United States v. Ramsey, 271 U.S. 467 (1926)
• Donnelly v. United States, 228 U.S. 243 (1913)
• United States v. Sandoval, 231 U.S. 28 (1913)
• United States v. Pelican, 232 U.S. 442 (1914)
• United States v. McGowan, 302 U.S. 535 (1938)
• 2001 Op. Va. Att'y Gen. 36
• Cohen's Handbook of Federal Indian Law § 3.04 (LexisNexis 2015)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2016/15-049_Flaherty_Issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

June 3, 2016

202 North Ninth Street
Richmond, Virginia 23219
804-786-2071

Colonel W.S. Flaherty
Superintendent, Department of State Police
Post Office Box 27472
Richmond, Virginia 23261-7472

Dear Colonel Flaherty:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether federal recognition of the Pamunkey Tribe alters the analysis and conclusions of a 2001 Opinion of the Attorney General relating to the authority of state and local law-enforcement to serve legal process, arrest warrants, and subpoenas, and investigate alleged misdemeanors and felonies, on the Pamunkey reservation. You also ask about law-enforcement authority for the Mattaponi reservation. The federal government has not recognized the Mattaponi Tribe.

Background

As you note, in 2001 this Office issued an opinion concluding that the King William Sheriff's Office has the same law-enforcement authority on these reservations as elsewhere in the county.[1] That opinion was premised, at least in part, on the fact that neither tribe at the time had been granted federal recognition. Because the tribes had a relationship with the Commonwealth only, the opinion found that state law governed the inquiry, and federal laws such as the Indian Country Crimes Act and the Indian Country Major Crimes Act did not apply.

The opinion noted that the Commonwealth's relationship with the tribes is rooted in the Indian Treaty of 1677, to which the Commonwealth stands as successor to the British Crown. Pursuant to the Treaty, lands within the reservations are held in fee simple by the Commonwealth, subject to the exclusive use and occupancy of the tribes. The Treaty, as well as subsequent actions of the General Assembly, imposes an obligation on the Commonwealth to "extend the same protections of the law . . . to members of the tribes as are extended to nonmembers."[2] Furthermore, nothing in the Treaty or other state law serves to limit the authority of law-enforcement on lands within the reservations. Accordingly, the opinion found that local law-enforcement has the same authority on the reservations as elsewhere in the locality.[3]

On October 6, 2015, the United States Department of the Interior officially acknowledged the Pamunkey Tribe as an Indian tribe within the meaning of federal law.[4] You ask whether this federal recognition limits the authority of state and local law-enforcement agencies on the Mattaponi and Pamunkey Indian reservations.

Applicable Law and Discussion

Generally, primary jurisdiction over land classified as "Indian country" rests "with the federal government and the Indian tribe inhabiting it, and not with the States."[5] Under federal statute, the term "Indian country" includes

(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.[6]

This statutory definition of "Indian country" originated in early twentieth-century United States Supreme Court decisions.[7] In these cases, the Supreme Court "relied upon a finding of both a federal set-aside and federal superintendence in concluding that the Indian lands in question constituted Indian country," and, as a result, "that it was permissible for the Federal Government to exercise jurisdiction over them."[8]

Congress's codification of the Supreme Court's definition of the term "does not purport to alter this definition of Indian country, but merely lists the three different categories of Indian country mentioned in [the Court's] prior cases: Indian reservations; dependent Indian communities; and allotments."[9] Therefore, lands occupied by Native Americans qualify as "Indian country" under federal law only in cases where 1) the land was set aside for Indian use by the federal government, and 2) the land remains subject to "federal superintendence."[10] The Mattaponi and Pamunkey Indian reservations meet neither of these requirements. The lands were set aside by the Crown in the Indian Treaty of 1677, and the lands themselves remain under the superintendence of the Commonwealth, not the federal government.[11]

Importantly, in Alaska v. Native Village of Venetie Tribal Government, the Supreme Court unanimously rejected the argument that "Indian country exists wherever land is owned by a federally recognized Tribe."[12] According to the Court, "[t]his argument ignores [the Court's] Indian country precedents, which indicate both that the Federal Government must take some action setting apart the land for the use of the Indians 'as such,' and that it is the land in question, and not merely the Indian tribe inhabiting it, that must be under the superintendence of the Federal Government."[13] In addition, the Court noted that the "health, education, and welfare benefits" available to federally recognized tribes do not alone constitute "active federal control over the Tribe's land sufficient to support a finding of federal superintendence."[14]

Conclusion

Accordingly, it is my opinion that the Pamunkey Indian reservation does not qualify as "Indian country" for federal purposes, despite federal recognition of the Pamunkey Tribe. My opinion is the same for the Mattaponi Indian reservation, where there has not been federal recognition of that tribe. Thus, Virginia state and local law-enforcement agencies retain the same authority on the Pamunkey and Mattaponi Indian reservations as elsewhere in the Commonwealth to serve legal process, arrest warrants, and subpoenas, and to investigate misdemeanors and felonies.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] 2001 Op. Va. Att'y Gen. 36.

[2] Id. at 38.

[3] Id. at 39.

[4] Final Determination for Federal Acknowledgment of the Pamunkey Indian Tribe, 80 Fed. Reg. 39,144 (July 8, 2015) (final determination eff. Oct. 6, 2015).

[5] Alaska v. Native Vill. of Venetie Tribal Gov't, 522 U.S. 520, 527 n.1 (1998); see also 18 U.S.C. §§ 1151, 1152, 1153, 3242 (2015); 1-3 COHEN'S HANDBOOK OF FEDERAL INDIAN LAW § 3.04[1] (LexisNexis 2015) [hereinafter, COHEN'S HANDBOOK].

[6] 18 U.S.C. § 1151; see also COHEN'S HANDBOOK, supra note 5, at § 3.04[2][c][ii] (stating that the modifying phrase "under the jurisdiction of the United States Government" in subsection (a) was "likely added to exclude from the scope of the statute Indian reservations governed by certain states and thus not under federal protection") (emphasis added); United States v. Ramsey, 271 U.S. 467, 470-72 (1926) (discussing the two types of Indian allotments, neither of which applies here).

[7] Venetie, 522 U.S. at 528-30 (citing Donnelly v. United States, 228 U.S. 243 (1913); United States v. Sandoval, 231 U.S. 28 (1913); United States v. Pelican, 232 U.S. 442 (1914); United States v. McGowan, 302 U.S. 535 (1938)).

[8] Id. at 530 (emphasis added).

[9] Id. (citations omitted).

[10] Id.

[11] See 2001 Op. Va. Att'y Gen. 36, 37-38.

[12] Venetie, 522 U.S. at 530 n.5.

[13] Id. (citing McGowan, 302 U.S. at 539, and Pelican, 232 U.S. at 449).

[14] Id. at 534.