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Sen. Warner’s Statement before Senate Indian Affairs Committee on September 25, 2008

 Good Afternoon Mr. Chairman and colleagues on the Senate Indian Affairs Committee.  I thank you for holding this hearing today regarding recognition of six Virginia Indian tribes.  For years now I have worked closely on this matter with these tribes and with my colleagues in the Virginia Congressional delegation.

 My message today is a simple one: While I strongly support federal recognition for these Virginia tribes, I do have a serious concern that H.R. 1294, the bill before the Committee, could produce the unintended consequence of allowing Virginia Indian Tribes greater rights to conduct gambling activities beyond the limitations currently established under Virginia’s laws.

 I shared these same concerns about gaming with the Committee at its June 2006 hearing on a similar bill.  At that time, I noted that I strongly believe that Virginia’s Indian tribes deserve federal recognition.  But, I also noted then that I share the concern of some people that federal recognition could - without appropriate court-tested safeguards - unintentionally result in gaming in Virginia that is contrary to the letter and spirit of Virginia’s laws.  At that hearing, I committed to working with the Virginia tribes and others to ensure that a federal recognition bill would not result in such an unintended consequence. 

 Despite my best efforts, the best efforts of the tribes, and the best efforts of others in the Virginia Congressional delegation, a consensus has not been reached on this matter.  I remain concerned that the House passed bill could produce the unintended consequence of allowing Virginia Indian tribes greater rights to conduct gambling activities beyond the limitations currently established under Virginia’s laws.

 Last year, I specifically asked the Congressional Research Service to review the House passed language on gambling.  I respectfully submit for the record the CRS memorandum reviewing this legislation.  In the memorandum, CRS states that the gaming language in H.R. 1294 has never been tested in court and that it is not possible “to predict or assert with any degree of certainty that H.R. 1294 provides ‘iron clad’ protection against gaming.”

 It is important to recognize that Congress has previously passed legislation that has been upheld in court with respect to federal tribal recognition and gaming limitations.  It is my hope that the Committee would work with the Virginia tribes and the Virginia Congressional delegation to examine these statutes and court cases and determine if such language could serve as a model to help move this very important recognition bill forward in an amended fashion. 

 Mr. Chairman, I hold the view that a consensus can be reached to move this legislation forward.  The Virginia tribes deserve recognition, and I believe federal recognition can be achieved while respecting Virginia’s laws on gaming.   Congress has passed similar laws for others tribes in other states, and courts have upheld those laws.  Those efforts should serve as our path forward.

 The case for federal recognition of these Virginia tribes is clear.  To date, the federal government has acknowledged more than 500 Native American tribes, yet the federal government has not done so for six of the tribes that first greeted Captain John Smith upon the shores of Jamestown more than 400 years ago.  While I recognize that there is an administrative process that is also available to obtain recognition, the case is well established that, because Virginia, many decades ago, destroyed vital documents, that this process is not appropriate for these tribes.

 In sum, Mr. Chairman, it is my hope that a federal recognition bill can pass the Congress and be signed into law with court-tested safeguards in place to protect our state laws on gaming. 

 Given the fact that legislative activity in the 110th Congress could come to a close in the coming days, I recognize that a consensus on this matter may not be achieved this year.  If that is indeed the case, it is my hope that you and others on this Committee will help move federal recognition legislation with court-tested gaming safeguards in the next Congress.