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115 State Recognition of American Indian Tribes A Survey of State-Recognized Tribes and State Recognition Processes K. Alexa Koenig & Jonathan Stein This chapter analyzes the legal status of state-recognized American Indian tribes—those tribes that have been recognized by their respective states but not by the federal government. State recognition1 is a widely practiced but poorly understood aspect of the U.S. federalist system that has been increasingly employed in relations between tribal nations and individual states as a counterpart to the unwieldy federal recognition process. Thus, there is a pressing need to clarify and better understand the panoply of state recognition processes and their results as well as their implications for the rights of tribal nations. Internet sources that list state-recognized tribes vary dramatically in quality and too often offer little explanation of their standards or methodology. These sites also do not detail the widely disparate state recognition processes.2 Even a leading Indian law text, Cohen’s Handbook of Federal Indian Law, offers only a cursory overview of state recognition and fails to include a comprehensive list of state-recognized Indian tribes.3 This chapter fills these gaps by documenting the results of one of the first systematic efforts to survey, categorize, and analyze the complexity of state recognition of American Indian tribes. We highlight particular contexts in which tribal-state relations emerged and examine the diversity of state recognition processes to more precisely define state recognition within the context of the federalist system and to address the ways in which it functions to facilitate state-tribal relations. Finally, we consider the ways in which state recognition contributes to indigenous governance and selfdetermination in the international arena. State versus Federal Recognition The federal government recognizes 566 tribes, but dozens of other tribal nations are recognized solely by the states in which they reside.4 According 116 K. Alexa Koenig and Jonathan Stein to our research, twenty-one states—Alabama, California, Connecticut, Delaware, Georgia, Hawaiʻi, Kentucky, Louisiana, Massachusetts, Michigan , Missouri, Montana, New Jersey, New York, North Carolina, Ohio, Oklahoma, South Carolina, Texas, Vermont, and Virginia—recognize a total of 73 tribes that are not federally recognized.5 An additional four states—Florida, Kansas, Maryland, and Tennessee—have considered or recently employed some form of state recognition.6 Because this area of law and practice is changing rapidly, this chapter is meant to be a starting place for further research, not a static overview of recognition states and staterecognized tribes. Over the past few decades, states and tribes have increasingly realized that state recognition can serve as an important albeit limited alternative to federal recognition. State recognition can facilitate communication between state and tribal governments, encourage diversity in state institutions , enable the provision of state services to underserved populations, and increase tourism.7 State recognition can also support tribes’ rights and provide important benefits in their relations with state and federal governments8 as well as clarify which tribes are exempt from the purview of legislation that explicitly excludes “Indians.”9 This emergent state-tribal rapprochement is evidenced by the many states that have recently codified their state recognition processes, are planning to implement new recognitionprocesses ,orareworkingtoenhancetheirstaterecognitionprocesses.10 An important example in analyzing the historical and political significance of state recognition lies within the continuing relationship between tribal nations and what is now the Commonwealth of Virginia. While the region has been a native homeland for at least twelve thousand years, none of the tribal nations within the commonwealth today are recognized by the U.S. federal government. Although the histories of the indigenous peoples of Virginia have been richly documented since the colonial period, they have also been appropriated and obscured by Euro-American conquest mythology and its voracious appetite for caricatures of Pocahontas. Racial ideology and racist legislation in the twentieth century also worked to obfuscate the identities and histories of Indian people in Virginia. The 1924 Racial Integrity Act is a case in point: It declared that only two racial categories—“white” and “colored”—existed in Virginia.11 Until this legislation was declared unconstitutional by the U.S. Supreme Court in 196712 and repealed in 1975,13 Census records identified individual tribal members as “colored” rather than as American Indian.14 Despite the destructive impact ofbothracismandpopularmythology,thetribalnationsinVirginiaendure. State Recognition of American Indian Tribes 117 Members of the Mattaponi Indian nation and the Pamunkey nation, for example, continue to live on their respective reservation lands, which were established in the mid-seventeenth century and are...


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