Can Virginia state troopers enforce state criminal law on tribal land within the Commonwealth, including the Pamunkey, Mattaponi, and the six federally recognized tribes that gained recognition in 2018?

Plain-English summary

Virginia is now home to eleven state-recognized Indian tribes. Seven of those (the Pamunkey, plus the Chickahominy, Chickahominy Indian Tribe-Eastern Division, Upper Mattaponi, Rappahannock, Monacan, and Nansemond, all recognized federally by the 2018 Federal Recognition Act) also hold federal recognition. The Mattaponi reservation, the Pamunkey reservation, and several other state-recognized tribes do not.

Colonel Gary Settle, the State Police Superintendent, asked Attorney General Jason Miyares a foundational question: do prior AG opinions saying the Commonwealth has full criminal jurisdiction on the Pamunkey and Mattaponi reservations extend to all tribal lands in Virginia? Miyares said no. The right framework is to look at each parcel of tribal land, ask whether it is "Indian country" within the meaning of 18 U.S.C. § 1151, and apply different jurisdictional rules accordingly.

The federal definition of "Indian country" requires two things: (1) the land was set aside for Indian use by the federal government, and (2) the land remains subject to federal superintendence (under the U.S. Supreme Court's 1998 Venetie decision). Federal recognition of the tribe alone is not enough. Health, education, and welfare benefits to a federally recognized tribe alone are not enough. What matters is whether the land itself is set aside and supervised by the federal government, typically through a trust relationship.

The Pamunkey and Mattaponi reservations were set up under colonial and state authority going back to the 1677 Treaty between the colonial governor and Virginia tribes; they were never set aside by the federal government and remain under state superintendence. So they are not Indian country, and Virginia state and local law enforcement have full criminal authority on those lands.

For the other federally recognized tribes, however, the 2018 Federal Recognition Act allows the federal government to take land into trust on the tribes' behalf. Once that happens, the trust land becomes Indian country. The Bureau of Indian Affairs has already taken two parcels into trust for the Upper Mattaponi (the Sharon Indian School site, the tribe's government center, and pow-wow grounds in King William County). Those parcels are Indian country.

On Indian country, federal law sets the rules. The state generally cannot prosecute Indian defendants for crimes committed in Indian country. Under Castro-Huerta (2022), the state can prosecute non-Indians for crimes against Indians or non-Indians in Indian country, concurrent with federal authority. The Major Crimes Act gives the United States exclusive jurisdiction over certain serious crimes by Indian defendants in Indian country. The result is a layered, fact-specific jurisdictional map that varies parcel by parcel.

What this means for you

If you are a Virginia State Police trooper or local sheriff's deputy

Before treating tribal land as ordinary state territory, ask whether it is Indian country. The two-part Venetie test is the right starting point: was the land set aside by the federal government, and does the federal government still supervise it (typically through trust title)? If you cannot answer yes to both, the land is not Indian country and your authority is the same as anywhere else in Virginia.

For the Pamunkey and Mattaponi reservations, the AG concluded the land is not Indian country, so your authority to investigate misdemeanors and felonies, serve process, and execute warrants is the same as in any non-tribal Virginia locality. The 2001 and 2016 AG opinions specifically endorse King William County sheriff authority on those reservations.

For the six tribes federally recognized in 2018 (Chickahominy, Chickahominy Eastern, Upper Mattaponi, Rappahannock, Monacan, Nansemond), check whether the parcel you are working on is held in trust by the federal government. The Bureau of Indian Affairs publishes trust acquisitions; the BIA Trust Quarterly newsletter covers these. The Upper Mattaponi trust parcels in King William County are confirmed Indian country as of this opinion.

If the parcel is Indian country, your jurisdiction is reduced over Indian defendants but generally retained over non-Indian defendants. The Major Crimes Act takes certain serious offenses (murder, manslaughter, certain assaults, sexual offenses, arson, robbery, larceny) by Indian defendants entirely off the state's plate. For lesser offenses by Indian defendants in Indian country, exclusive federal jurisdiction does not apply but state jurisdiction remains restricted. When in doubt, contact federal authorities and tribal law enforcement before pursuing criminal process against an Indian defendant on what may be Indian country.

If you are a tribal government official

This opinion affirms that federal recognition alone does not change the jurisdictional status of the tribe's land. To bring tribal land within Indian country status (and therefore subject it to the Indian-country jurisdictional regime), the tribe needs to pursue trust acquisition through the BIA under the 2018 Federal Recognition Act. Each parcel-by-parcel trust action incrementally expands tribal sovereignty over its lands.

For Pamunkey and Mattaponi land, the historical state-superintendence relationship continues. If your tribe is interested in changing that posture, the federal trust route is the available mechanism but it is parcel by parcel.

If you are a federal prosecutor

The opinion does not change your jurisdiction, which derives from federal statute. It does signal that Virginia's state police and sheriffs are now actively coordinating with the Indian-country jurisdictional regime. If you receive referrals on cases occurring on the Upper Mattaponi trust parcels (or future trust acquisitions), expect the state to defer on Indian-defendant cases that fall under exclusive federal jurisdiction.

If you are a tribal attorney advising members on jurisdiction

When advising members about police interactions on or near tribal land, the answer is now parcel-specific. The general "state has full authority" rule the AG endorsed for Pamunkey and Mattaponi is intact, but Indian country status on Upper Mattaponi trust parcels (and any future trust acquisitions) creates important federal-jurisdiction protections for Indian defendants on those parcels. Castro-Huerta still permits state prosecution of non-Indian defendants for crimes in Indian country.

If you are a defense attorney representing an Indian client

Whether your client's offense occurred in Indian country is now a threshold motion-to-dismiss issue worth investigating. If the offense occurred on a federal-trust parcel and your client is Indian, state prosecution may be jurisdictionally barred. The McGirt and Castro-Huerta line of Supreme Court cases is rapidly evolving the analysis. The trust status of each parcel involved is a verifiable fact through BIA records.

Common questions

Q: What is "Indian country" exactly?
A: 18 U.S.C. § 1151 defines it as (a) reservations under federal jurisdiction, (b) dependent Indian communities, and (c) Indian allotments with unextinguished Indian title. The Supreme Court in Venetie (1998) added that for any of these, the land must have been set aside by the federal government for Indian use and remain under federal superintendence.

Q: If a tribe is federally recognized, is its land automatically Indian country?
A: No. The Supreme Court in Venetie expressly rejected that argument. Federal recognition of the tribe is a status given to the people, not the land. Land becomes Indian country only when separately set aside by federal action and held under federal superintendence (typically as trust land).

Q: What is "trust land"?
A: Land held in trust by the federal government for the benefit of a tribe. Title is in the United States, but the tribe has beneficial use. Under McGowan and Citizen Band Potawatomi, federally held trust land is treated equivalent to reservation land for purposes of federal jurisdiction.

Q: What about the Major Crimes Act?
A: 18 U.S.C. § 1153 gives the United States exclusive jurisdiction over an enumerated list of serious offenses (murder, manslaughter, kidnapping, certain sexual offenses, certain assaults, arson, burglary, robbery, larceny) committed by Indian defendants in Indian country. State courts have no jurisdiction over those.

Q: Can the state still prosecute a non-Indian who commits a crime in Indian country?
A: Yes. The Supreme Court in Castro-Huerta (2022) held that states have jurisdiction over crimes committed in Indian country unless preempted, and that nothing in federal law preempts state prosecution of non-Indians for crimes against Indians or non-Indians in Indian country.

Q: What about the 1677 Indian Treaty?
A: The Virginia Supreme Court has held that the 1677 Treaty is not federal law (Alliance to Save the Mattaponi v. Commonwealth, 270 Va. 423 (2005)). It can be relevant to the historical analysis of how the Pamunkey and Mattaponi reservations came to be, but it does not impose federal jurisdiction on those reservations on its own.

Q: How do I find out if a particular parcel of tribal land is held in trust?
A: BIA publishes trust acquisitions in its Trust Quarterly newsletter. For specific parcels, contact the BIA Office of Trust Services or the tribe's land office. Local recorder of deeds offices may also reflect trust title.

Background and statutory framework

Virginia has eleven state-recognized tribes: Chickahominy, Chickahominy Indian Tribe-Eastern Division, Monacan Indian Nation, Nansemond Indian Nation, Pamunkey Indian Tribe, Rappahannock Tribe, Upper Mattaponi Indian Tribe, Mattaponi Indian Tribe, Cheroenhaka (Nottoway) Indian Tribe, Nottoway Indian Tribe, and Patawomeck Indian Tribe. Seven of these also hold federal recognition.

Federal recognition arrived in three waves:
1. Pamunkey, recognized administratively by the Department of the Interior in 2015.
2. Six tribes (Chickahominy, Chickahominy Eastern, Upper Mattaponi, Rappahannock, Monacan, Nansemond) recognized by Congress in the 2018 Federal Recognition Act (named for Thomasina E. Jordan).
3. Pre-2015 Mattaponi tribe remains state-recognized only.

Federal jurisdictional law treats the land separately from the tribe. Under 18 U.S.C. § 1151, "Indian country" includes all land within reservations under federal jurisdiction, dependent Indian communities, and Indian allotments. The Supreme Court in Alaska v. Native Village of Venetie Tribal Government (1998) held that for any of these, the federal government must have set the land aside for Indian use and must continue to exercise superintendence over it. Health, education, and welfare benefits to the tribe alone do not establish federal superintendence over the land.

Once land is Indian country, federal law dictates jurisdictional rules. The General Crimes Act (18 U.S.C. § 1152) extends federal law to Indian country and creates concurrent federal-state jurisdiction in some cases. The Major Crimes Act (18 U.S.C. § 1153) gives the federal government exclusive jurisdiction over enumerated serious crimes by Indian defendants. Castro-Huerta (2022) preserved state authority to prosecute non-Indians in Indian country.

The Pamunkey and Mattaponi reservations were established by the colonial government under the Indian Treaty of 1677. They remain under Virginia superintendence rather than federal trust. The 2016 AG opinion concluded they are not Indian country, and this 2023 opinion reaffirms that conclusion. The Bureau of Indian Affairs accepted two parcels into trust for the Upper Mattaponi in 2022 (Sharon Indian School, tribal government center, and pow-wow grounds in King William County). Those parcels are Indian country and subject to the federal jurisdictional rules described above.

Citations and references

Federal statutes:
- 18 U.S.C. § 1151 (definition of Indian country)
- 18 U.S.C. § 1152 (General Crimes Act)
- 18 U.S.C. § 1153 (Major Crimes Act)
- Federal Recognition Act of 2017, Pub. L. No. 115-121 (2018)

Cases:
- Alaska v. Native Village of Venetie Tribal Gov't, 522 U.S. 520 (1998) (two-part test for Indian country)
- Oklahoma v. Castro-Huerta, 142 S. Ct. 2486 (2022) (state jurisdiction over non-Indians in Indian country)
- McGirt v. Oklahoma, 140 S. Ct. 2452 (2020) (state lacks jurisdiction over Indian defendants in Indian country)
- Haaland v. Brackeen, 599 U.S. 255 (2023) (scope of congressional power over Indian affairs)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2023/23-020-Settle-issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA

Office of the Attorney General

Jason S. Miyares
Attorney General

202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

December 29, 2023

Colonel Gary T. Settle
Superintendent of State Police
Post Office Box 27472
Richmond, Virginia 23219

Dear Colonel Settle:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You seek guidance regarding Virginia's jurisdiction over tribal lands for certain law enforcement purposes. Referencing prior opinions of this Office that address the Pamunkey and Mattaponi Indian reservations, you more specifically ask whether the Commonwealth's authority to investigate misdemeanors and felonies and to serve legal process, arrest warrants, and subpoenas (collectively referred to herein as "criminal jurisdiction") as elsewhere in the Commonwealth extends to all tribal lands in Virginia.

Response

It is my opinion that the Commonwealth's authority to investigate misdemeanors and felonies and to serve legal process, arrest warrants, and subpoenas on the Pamunkey and Mattaponi Indian reservations as elsewhere in the Commonwealth does not necessarily extend to all tribal lands in Virginia. It is further my opinion that jurisdictional determinations related to tribal land should be evaluated on a case-by-case basis that includes an examination of the lands' status under federal law.

Background

This Office has issued opinions on matters related to Indians on numerous occasions, including the 1977, 2001, and 2016 opinions you cite. Relying on legislative acts of Virginia's colonial government and the Indian Treaty of 1677, the 1977 opinion concluded that Virginia holds a fee simple interest in the Pamunkey and Mattaponi Indian reservations, subject to the exclusive use and occupancy of the two tribes. Highlighting that neither the Pamunkey nor Mattaponi Indian tribe had been recognized by the United States government, the 2001 opinion more specifically concluded that the King William County Sheriff's Office, in accordance with Virginia law, has the same law-enforcement authority on those tribes' respective reservations as elsewhere in the county.

In 2015, however, the United States Department of the Interior officially acknowledged the Pamunkey Tribe as an Indian tribe within the meaning of federal law. Nevertheless, despite the grant of federal recognition, this Office opined in 2016 that, because neither the Pamunkey nor Mattaponi Indian reservations constituted "Indian country" under federal law, "Virginia state and local law-enforcement agencies retain the same authority on the Pamunkey and Mattaponi Indian reservations as elsewhere in the Commonwealth to serve legal process, arrest warrants, and subpoenas, and to investigate misdemeanors and felonies."

In 2018, Congress extended federal recognition to six other Virginia tribes: the Chickahominy Indian Tribe, the Chickahominy Indian Tribe-Eastern Division, the Upper Mattaponi Tribe, the Rappahannock Tribe, Inc., the Monacan Indian Nation, and the Nansemond Indian Tribe. Today, the Commonwealth is home to eleven state-recognized tribes, including the seven that are also recognized by the federal government. You inquire regarding the status of Virginia's criminal jurisdiction over all tribal lands in Virginia.

Applicable Law and Discussion

I first note that, because "there is no rigid rule by which to resolve the question whether a particular state law may be applied to an Indian reservation or to tribal members[,]" jurisdiction over tribal lands is complex and dynamic and must be evaluated with respect to particular tribal lands on a case-by-case basis. Congress's role in regulating tribal affairs is one significant factor that creates special considerations in resolving such jurisdictional questions.

A primary consideration in evaluating the scope of the Commonwealth's criminal jurisdiction over tribal lands in Virginia is whether the land in question qualifies as "Indian country" under federal law. Congress has defined "Indian country" as

(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

Consistent with this statutory definition and applicable case law, the 2016 opinion of this Office explains that tribal lands qualify as Indian country only if "(1) the land was set aside for Indian use by the federal government, and (2) the land remains subject to 'federal superintendence.'"

Importantly, then, it follows that federal recognition alone does not establish tribal land as Indian country. In Alaska v. Native Village of Venetie Tribal Government, the United States Supreme Court unanimously rejected the argument that "Indian country exists wherever land is owned by a federally recognized Tribe." Additionally, the Court noted that the "health, education, and welfare benefits" available to federally recognized tribes do not alone constitute "active federal control over the Tribe's land sufficient to support a finding of federal superintendence." The Court has observed, however, that tribal land held in trust by the federal government for the benefit of the tribe is equivalent to reservation land within the meaning of federal law, and thus subject to the jurisdiction of the United States. And, in general, there is federal superintendence where the federal government holds title to the land.

In accordance with the Supremacy Clause, land qualifying as Indian country is subject to special jurisdictional rules. Generally, primary jurisdiction over land classified as Indian country rests "with the federal government and the Indian tribe inhabiting it, and not with the States." With respect to criminal jurisdiction, however, the United States Supreme Court has held that "Indian country is part of a State's territory and that, unless preempted, States have jurisdiction over crimes committed in Indian country."

With the enactment of The General Crimes Act, Congress extended federal law to Indian country and established concurrent jurisdiction for the federal government and the State. The federal Major Crimes Act, on the other hand, demands "the exclusive jurisdiction of the United States" for certain crimes committed by "Indian" offenders. Accordingly, "State courts generally have no jurisdiction to try Indians for conduct committed in 'Indian country[,]'" but states do have concurrent jurisdiction to "prosecute crimes committed by non-Indians against non-Indians in Indian country," and "to prosecute crimes committed by non-Indians against Indians in Indian country."

Therefore, on any land within Virginia that is Indian country, the State generally does not have criminal jurisdiction over Indians; however, the State does retain such jurisdiction over non-Indians. For tribal lands in Virginia that are not Indian country, state law governs. State jurisdiction over tribal lands is not limited by the laws of the Commonwealth or the Indian Treaty of 1677. Consequently, so long as particular tribal lands are not Indian country under federal law, Virginia state and local law enforcement agencies retain the same authority on those lands as elsewhere in the Commonwealth to investigate misdemeanors and felonies and to serve legal process, arrest warrants, and subpoenas.

Accordingly, the extent to which the Commonwealth can exercise criminal jurisdiction over the tribal lands located in the state depends on the status of the land in question under federal law. Consistent with the prior opinions of this Office, the Pamunkey and Mattaponi Indian reservations do not currently qualify as Indian country. Federal recognition of the Pamunkey Indian Tribe, and the associated benefits available to the Tribe, are not sufficient to establish the Pamunkey Indian reservation as Indian country. The Mattaponi Tribe has not been federally recognized. Moreover, the Pamunkey and Mattaponi Indian reservations were established during the colonial era and the lands were not set aside by the federal government; rather, to my knowledge, the lands remain under the superintendence of the Commonwealth.

Other tribal lands in Virginia, however, may qualify as Indian country. While federal recognition in and of itself does not establish certain tribal land as Indian country, the Federal Recognition Act allows the recognized tribes to request that certain lands be taken into trust by the federal government and provides that, upon that tribe's request, any such land accepted into trust shall be considered part of a tribe's federally designated reservation. Whether any particular land satisfies this condition is a question of fact beyond the scope of this opinion.

Conclusion

Accordingly, it is my opinion that the analysis and conclusions articulated in the previous opinions of this Office relating to the authority to serve legal process, arrest warrants and subpoenas, and to investigate misdemeanors and felonies on the Pamunkey and Mattaponi Indian reservations as elsewhere in the Commonwealth do not necessarily extend to all tribal lands in the Commonwealth of Virginia. State jurisdiction over tribal lands in Virginia is extensive, but such jurisdiction is not static and should be considered on a case-by-case basis. Where tribal lands have been set aside by the federal government and are subject to federal superintendence, state and local law enforcement should abide by the jurisdictional rules applicable to Indian country.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General