Tribal Code Commission Meets To Update Virginia Laws

Del Paul Krizek

 

By Del. Paul Krizek

As the oldest lawmaking body in the Western Hemisphere, Virginia boasts a rich legislative history through its Constitution and Code. These living documents are updated each legislative session to reflect the evolving needs of our society. Since its first adoption in 1776, the Virginia Constitution has undergone six comprehensive revisions, the latest in 1971. This landmark revision introduced environmental protections, established compulsory education as a constitutional right, ensured compliance with the Voting Rights Act of 1965, and prohibited governmental discrimination based on religious conviction, race, color, sex, or national origin.

Instead of full revisions, recent changes to the Constitution have come through amendments, such as lowering the voting age to 18 and creating the Virginia Lottery. Similarly, the Code of Virginia, first compiled in 1819, has been fully revised four times, with the current version dating back to 1950. In 1953, the Virginia Code Commission advised that the General Assembly revise laws title-by-title rather than through complete overhauls, a method akin to how Congress updates the United States Code. Notably, the Commission can independently make minor changes to the code without General Assembly ratification, including correcting spelling errors and updating obsolete references.

Due to the Code of 1950 remaining in effect, the General Assembly occasionally establishes commissions to recommend specific updates. This session, following the successful passage of my bill HB 200, I traveled to Richmond on July 1st for the inaugural meeting of the Commission on Updating Virginia Law to Reflect Federal Recognition of Virginia Tribes. I was honored to be chosen to serve as Chairman of this Commission, tasked with reviewing Virginia law to ensure it aligns with the government-to-government relationship we must maintain with the sovereign, self-governing, federally recognized Tribal Nations within the Commonwealth.

Each of Virginia’s seven federally recognized tribes—Chickahominy, Chickahominy-Eastern Division, Monacan, Nansemond, Pamunkey, Rappahannock, and Upper Mattaponi—has a representative on the Commission. Additionally, Virginia recognizes four other state tribes: Cheroenhaka (Nottoway), Mattaponi, Nottoway, and Patawomeck. Federal recognition for Virginia Tribes is relatively new, with the Pamunkey gaining recognition in 2015 and six others in 2018 through the Thomasina E. Jordan Act.

Why are changes to our Code necessary? Morgan Faulkner, representing the Upper Mattaponi Tribe, provided a comprehensive presentation on the history of Virginia’s tribes and the key differences between state and federal recognitions. Federal recognition acknowledges the inherent sovereignty of tribal governments, allowing them to govern themselves according to their own traditions, laws, and leadership structures. Federally recognized tribes have a government-to-government relationship with federal, state, and local governments, whereas state recognized tribes do not legally have a government and are often organized as 501(c)3s (nonprofits). Unlike state recognized tribes, federally recognized tribes also have sovereign immunity, and legislative, judicial, taxation, and law enforcement powers. They can also access federal funding for services like healthcare and environmental regulation and place lands into trust with the federal government.

Preliminary research by the University of Virginia’s State and Local Government Law Clinic, the Commission’s pro-bono research arm, indicates that revisions are needed in almost every Title of the Virginia Code. Professor Andy Block, the clinic's director, outlined potential review topics for the Commission, including revising language definitions for Native Americans, adding tribal representation to state commissions, ensuring tribal government eligibility for municipal and state grants, and aligning state law with the Indian Child Welfare Act, to name a few.

This Commission represents a crucial step in acknowledging and rectifying past oversights while paving the way for a more inclusive and respectful legal framework that honors and recognizes the sovereignty and heritage of Virginia's Tribal Nations. Over the next several meetings this year, the clinic will present possible revisions to the Code for the commission to consider that we can introduce in the General Assembly and pass into law in 2025.