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Nomination of Michelle T. Friedland to Be US Circuit Judge for the Ninth Circuit

Floor Speech

Location: Washington, DC


Madam President, I rise today to speak on behalf of S. 1074, the Thomasina Jordan Indian Tribes of Virginia Federal Recognition Act of 2013. This is a bill granting Federal recognition to six Indian tribes. The bill has recently been reported out of the Senate Committee on Indian Affairs, and I want to thank Chairman Tester, the former chairwoman, Senator Cantwell, and all members of the Committee for this action.

These six Indian tribes--the Chickahominy, Chickahominy Eastern Division, Upper Mattaponi, Rappahannock, Monacan, and Nansemond--are among the best known tribes in American history, but they have never received Federal recognition. Madam President, 566 tribes have received Federal recognition--the vast majority by congressional action--but these tribes have not been recognized.

The story of these tribes and why they have never been recognized is why I take the floor.

It is an amazing story but it is also a deeply tragic story. But the tragedy can be redeemed if Congress acts to correct a gross historical injustice that has deprived these tribes of their rightful place. This is about a full accounting of our past, but it is also about a fair and truthful recognition of living people who have maintained their own tribal identity, customs, and traditions against unbelievable odds for hundreds of years.

The English settlers who arrived at Jamestown in 1607 established a settlement on an island, on land that was already under the control of the Powhatan Indians. The Powhatan Indians were a confederation of numerous Eastern Algonquian Indian tribes who had organized in the Chesapeake region.

The interaction among these Powhatan Indians and these six tribes that were part of this Powhatan Confederacy and the English is known to virtually every American. The original settlement of England in the United States was on the verge of failure numerous times and had to be rescued by a commoner who was part of that group, John Smith.

Only John Smith could keep this little settlement alive. Early after the arrival of the English, John Smith was captured by the Powhatan Indians and was on the verge of being executed by Chief Powhatan because they were unsure about what they thought of these English settlers. In this wonderful story, as he was about to be executed, Pocahontas, the daughter of Chief Powhatan, saved his life. By saving his life, that act paved the way for the survival of this very struggling colony. That colony then grew into English-speaking America, as we know, with the arrival of later groups of English at Plymouth Rock and thereafter.

That act by Pocahontas is known to virtually all Americans. Over the course of the next few decades, they went back and forth in the relationship between these tribes and the English colonists and then between these tribes and African slaves. The first Africans who came to the new world also came to Jamestown Island in 1619.

But after Pocahontas' act, it was generally a peaceful relationship. There were some times of hostility, but in treaties in the 1640s and then again in a final treaty in 1677, the Treaty of the Middle Plantation, the Powhatan Confederacy and these six tribes basically said to their English colonist neighbors: We want to live in peace with you.

Pocahontas got married to John Rolfe, an English tobacco planter. That was a seminal event in early Virginia colonial history. So by the 1680s, 75 years after the settlement of Jamestown Island, the Powhatan Confederation was no more. But these Virginia Indians continued to live and maintain their tribal identity, but they lived in complete peace with the settlers that were their neighbors. The Treaty of Middle Plantation was signed 100 hundred years before the Declaration of Independence. That peace that was made between the Indians and the settlers paved the way for modern Virginia and modern English-speaking America. It has been continuous since 1677--the peace of these tribes. The relations between Virginians and the tribes have been strong. They have endured significant adversity. Their numbers of population have dwindled from 25,000 down to about 3,000 or 4,000 enrolled tribal members today. They converted to the religion of the English settlers, Christianity. They fought as American patriots in every war this country has been in, from the Revolutionary War to the wars in Iraq and Afghanistan. They faced discrimination as Indians, often kept out of schools in Virginia because of the color of their skin, because they were not deemed to be ``Caucasian'' by State leaders at the time.

But the relationship is a peaceful one, and these tribes still exist. Two tribes in Virginia have small reservations, and the other tribes own land in common. They have tribal churches, tribal cemeteries, and community centers where they still gather. There is a wonderful tradition if you are the Governor of Virginia. On the day before Thanksgiving Day every year, the Virginia tribes come to the Governor's mansion and they present to the Governor deer, turkey, fish, and gifts as a tribute to the peaceful relationship between these tribes and the Commonwealth of Virginia since 1677. It was a beautiful aspect of my time as Governor. It was something we looked forward to every year. The members of these tribes look forward to it as well. Tribal members who have moved all across the country and all across the world come home for a homecoming, and it begins at the Virginia Governor's mansion.

Now I get to the injustice. The interactions between these Indians and the first English settlers is known to everybody--that story about Pocahontas and John Smith, and then Pocahontas' wedding to John Rolfe and her moving to England and dying there. You can go to Pocahontas' grave at Gravesend, which is where the Thames River dumps into the sea. She died coming back to Virginia. The English tend her grave with reverence at a small Episcopal church in that seaside community.

This is the most archetypal story of the interaction between European settlers and the Indians who were our native inhabitants. But despite the importance of this interaction, despite the fact that the tribes have lived and maintained their existence intact since before the settlers arrived here, the tribes have never been recognized along with the 566 tribes who have.

Why? Why have they never been recognized? Well, unbelievably, the first reason they have not been recognized is: They made peace too soon. They made peace with the English. If they had waited until 1780 and made peace with the Americans, that treaty, a treaty with the Americans, would have been the basis immediately for Federal recognition. But they became peaceful too soon with their European neighbors.

Tribal recognition often begins with a treaty. But the treaties are treaties with the American government. All historians acknowledge that the treaties of 1646 and 1677 happened. There are copies of the treaties. The originals are still maintained. All acknowledge that these treaties and the Indians' decision to live in peace with their neighbors was a precondition for the modern Virginia. If there had not been peace, our history may well have been very different.

I will tell you something else. These treaties are recognized by a government, the English government. When our tribes, which have never been recognized by the United States go to visit England, they are given a royal welcome

and treated as the sovereign people they are by the government with which they made a treaty in 1646 and 1677. So that was the first ``mistake'' that was made: These tribes made peace too quickly.

There is a second mistake that is in some ways even more difficult to acknowledge. Many of these tribes live in six counties in Virginia. Five of the county courthouses where all their birth, death, and marriage records were stored were burnt during the Civil War. But there were still some records that existed--some.

But in a bizarre bit of our 20th century history, Virginia passed a law, the Racial Integrity Act, in the 1920s. Under a misguided and bizarre notion of ``racial purity,'' the eugenics movement, State officials determined that you were either white or you were colored. There was no such thing as an Indian. The leader of the State Bureau of Vital Statistics, a man named Walter Plecker--this is well documented--sadly held the position of head of the Bureau of Vital Statistics from 1924 to 1967, 41 years.

Remaining records such as they were in that 41-year period, he undertook what is known in Virginia as the ``paper genocide.'' He systematically went into every remaining record he could find and recharacterized anybody who had claimed a descent and a tribal connection as an Indian to ``colored.'' Records were destroyed or altered in a very significant way.

Both of these reasons have made tribal recognition through the BIA process--the Bureau of Indian Affairs--very difficult. Of the 566 tribes that have been recognized, only about one-fifth have gone through the administrative process. That process usually requires heavy documentation.

But the treaty was with the wrong government, and the birth, death, and marriage records were destroyed because of a racist State policy and the burning of courthouses during the Civil War. These six tribes should be rewarded, not punished, for making peace with their neighbors in the 1640s and 1670s, and they should not be held back because of a horribly misguided State policy that stripped them of the means to easily demonstrate by paper what all historians acknowledge to exist--the continuous history of these tribes.

We started, in Virginia, to correct this in the 1980s. In 1983, Virginia began a process of State recognition of all of these tribes. The six tribes have all been recognized by the State in the 1980s. All tribes that are part of this bill are now recognized by Virginia.

A full effort to finally receive Federal recognition began in 1999, supported overwhelmingly by all Virginians, including the current entire Virginia congressional delegation, Democratic and Republican, House and Senate, and all 10 living Virginia Governors. Recognition bills have passed out of the House for these tribes twice. In the 112th Congress, a bill passed out of the House and then came to the Senate, and it passed out of the Senate committee, only to die because of inaction on the Senate floor.

It is my deep hope that the 113th Congress will finally see the realization of this long-held dream. We should pass this bill because it is right. These tribes exist. They still live in Virginia and uphold their tribal traditions. They deserve to have their existence acknowledged just like the hundreds of other tribes in this country.

But there is a final reason why recognition has a very immediate importance to these Virginia tribes. If you walked 3 blocks from here down the Mall, you arrive at the National Museum of the American Indian. It is part of the Smithsonian, America's National Museum. The Smithsonian is every bit as much a part of our American Government as Congress is.

It is a marvelous museum. It tells the story of our Indian tribes and their amazing history of adversity and triumph. The Smithsonian curators recognize what Congress has failed to do. Go to the second floor. There is a permanent exhibit on the second floor of the museum. The title of the exhibit is, ``Return to a Native Place: Algonquian Peoples of Chesapeake.'' That permanent exhibit in the museum, with the plastic dioramas, highlights the Powhatan tribes that are the subject of this bill.

Here is how the museum describes the permanent exhibit dedicated to these tribes:

Thru photos, maps, ceremonial and everyday objects, this display provides an overview of the history of the Native Peoples of the Chesapeake region from the 1600's to the present day.

So we do recognize these tribes--in a museum. We acknowledge that they are not just a part of history, but in the words of the museum display description, that the people continue to maintain their tribal identity to the present day. But while we recognize the tribes in the museum three blocks from the Capitol, we will not, we have not, and we do not yet recognize these tribes in law.

Finally, the failure to recognize these tribes in law has an unusual and very tragic consequence. It also deals with the Smithsonian. There is another department in the Smithsonian that is far out of the prying eyes of tourists on the mall. It is the warehouse of the Smithsonian where they hold remains of archaeological exhibits. They hold all kinds of remains and all kinds of artifacts from archaeological exhibits from all over the United States and all over the world.

One set of remains that the Smithsonian is holding is the bones of about 1,400 Virginia Indians that were disturbed and unburied during the course of archaeological expeditions in Virginia.

The tribes that we are talking about today, the bones of their ancestors are held in a warehouse by the Smithsonian. For years, these tribes have gone respectfully to the Smithsonian, and they have asked them: Please return to us the bones of our ancestors. We want to bury the bones of our ancestors in accord with our tribal customs. We want to rebury the bones of our ancestors in accord with the customs of Christianity, which we embraced under the tutelage of the English settlers.

But the Smithsonian will not return these bones to the tribes. It seems like such a reasonable request. It seems so reasonable, but the Smithsonian will not return the bones of these tribes for one reason: They are not federally recognized. The law governing the antiquities and objects held by the Smithsonian leads the Smithsonian to conclude that they can't give these bones back for reburial unless the tribes are federally recognized.

Our great national museum recognizes the tribes in a great display behind plastic glass and talks about these tribes, but at the same time we recognize them for one purpose, we will not hand the bones back to these folks in a manner they deserve.

To conclude, it is long past time that these tribes receive the tribal recognition that hundreds of other tribes have received. It is long past time that these tribes be accorded the same respect in America--for which they fought since the Revolutionary War--that they receive in England when they go visit. It is long past time that the bones of these Powhatan ancestors be returned to Virginia so that they can be buried by their families in the only land they ever knew as home.


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