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Supporting Meaningful Consultation: A Common Sense Legacy for Virginia Whose Time Has Come

Updated: Apr 23

Note: HB 1157 was enacted as Chapter 830 on April 17, 2024. The bill that passed the General Assembly was amended by the Governor to remove consent in favor of consultation only. The new legislation will go into effect on July 1, 2024 and a Tribal Ombudsman will be hired to provide dedicated capacity to support consultation processes between Tribal Nations and the Commonwealth.

An evergreen tree on the shores of a river
A view of the Chickahominy River at Mamanahunt

With the wrap-up of the Virginia’s 2024 General Assembly Regular Session, the passage of VA HB1157 was a huge step forward for reinforcing sovereignty and Indigenous care of ancestral landscapes by mandating government-to-government consultation with the seven federally-recognized tribes of the Commonwealth of Virginia.  While federal recognition has supported formal consultation with the US federal government for more than five years, this new law mandates consultation in perpetuity between federally-recognized tribes and the Commonwealth’s Department of Conservation and Recreation, the Department of Environmental Quality, the Department of Historic Resources, and the Virginia Marine Resources Commission to protect sacred sites.

At its heart, this new legislation now awaiting the Governor’s signature emphasizes the importance of "looking before you leap" or, in this case, “looking before you dig.” Embedding Indigenous Knowledge of the landscape in advance of making decisions is simple common sense. Who better to ask where the ancestors are buried than their descendants?

“HB1157 is a giant step towards establishing a working relationship between the State and the Federally Acknowledged Tribal Nations of the Commonwealth,” said Chief Frank Adams (Upper Mattaponi Indian Tribe) and vice-chair of the Indigenous Conservation Council (ICC).  “Since 2018, Tribes have started developing their own economic venues. We are certainly not against economic development; it just makes sense to notify us early about projects that may affect sacred sites. It will save everyone time and money.”

What Does Meaningful Consultation Look Like in Virginia? We don’t need to look far in Virginia to see the costly consequences of failing to meaningfully consult with tribal nations. The painful four-year process to protest a poorly sited project at Rassawek, a sacred site to the Monacan Indian Nation and its historical capital city, could have been entirely avoided. Meaningful and upfront consultation could have saved taxpayer money, improved project design, and advanced government-to-government relationships in productive ways. 

Thankfully, there is a better path forward, and government-to-government consultation between tribes and states has emerged as a bipartisan solution in Virginia and in other states around the nation.  It’s important to note that the UN Declaration of the Rights of Indigenous Peoples affirms the importance of Free, Prior, and Informed Consent for all Indigenous Peoples for decisions affecting their ancestral landscapes and livelihoods. Consultation, when done well, upholds these international rights and supports consent as the best outcome. 

Good consultation is built on respect and trust for sovereign governments with a mutual interest in caring for communities, public health, and sacred sites. Creating a stepwise process as laid out in the new law demystifies how consultation should be done in meaningful ways, rather than just an unfulfilling “box-checking” exercise for all parties. Legislators, with input from tribal leadership, also created an Ombudsman, a dedicated tribal liaison, to ensure both Tribal Nations and the Commonwealth have support to respectfully navigate consultation processes successfully with the goal of avoiding sensitive and sacred areas up front.

The good news is, according to Valerie Grussing, the executive director of the National Association of Tribal Historic Preservation Officers, generally speaking agencies and Tribes agree on what constitutes good consultation and how it should be conducted. “They tell us that mutual respect must be the basis upon which successful consultation builds…Successful consultation begins early in the planning stages, and is predicated on each party being knowledgeable about the project and the priorities and desires of the other parties.” Most importantly, successful consultation results in better and lasting final agreements.

When Consultation Works Well: Lessons from States Around the Nation

When consultation works well, it WORKS. And it centers around building relationships, an inherently human process that makes all parties feel seen and respected. This is good for governance and good for the land which requires long-term caretaking partnerships.

In 2000, archaeologists at the North Dakota State Dept of Transportation, did exactly this–start at the beginning with respect and relationships at the front. They began working with tribal elders to better understand sacred sites that needed to be avoided in project planning for Highway 2. That consultation proved so fruitful, that this model led to the use of tribal citizens as paid monitors, a new tribal consultation committee expanding tribes engaged in the project, and bringing the model to other transit projects in North Dakota.

States like Michigan that have made commitments to consultation that are decades old. In 2002, Republican Governor John Engel (R-MI) signed the Government to Government Accord with federally recognized tribes in the State of Michigan laying out the importance and commitments of consultation to support mutual respect for sovereignty. Adhering to that agreement and resulting policies have persisted across four different administrations--with both Republican and Democratic administrations in the executive branch of government. This has successfully led to the present day consultation policy between 17 state agencies and 12 federally-recognized tribes in Michigan which persist to this day.

A Call to Action During the Centennial Year of the Racial Integrity Act:

During the centennial year of the Racial Integrity Act of 1924, which created a full-scale assault on American Indians in Virginia, Governor Youngkin now has a golden opportunity to show what supporting sovereignty really looks like.

“This bill passed with flying colors because supporting meaningful consultation makes sense," said Chief Anne Richardson of the Rappahannock Tribe and Chair of the Indigenous Conservation Council (ICC) of the Chesapeake Bay. "This is not about partisanship, it’s about acting in the best interest of our tribes, the people of Virginia, and the Commonwealth. We urge Governor Youngkin to take the last and necessary step by signing VA HB1157.”

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