WEST virginia
legislature
2017 regular session
By
[
to the Committee on Government Organization then the Judiciary.
A BILL to amend the Code
of West Virginia, 1931, as amended, by adding there to a new article,
designated §5-30-1, §5-30-2, §5-30-3, §5-30-4, and §5-30-5, all relating to
state recognition of Native American tribes; defining terms; designating
certain tribes as recognized by the state; establishing criteria for state
recognition of additional tribes; authorizing unique trademarks for certain
arts and crafts; prohibiting gambling; and providing penalty for unauthorized
use of trademark.
Be it enacted by the
Legislature of West Virginia:
That the Code of West
Virginia, 1931, as amended, be amended by adding thereto a new article,
designated §5-30-1, §5-30-2, §5-30-3,
§5-30-4 and §5-30-5, all to read as follows:
ARTICLE
30. WEST VIRGINIA NATIVE AMERICAN TRIBES
UNIQUE RECOGNITION, AUTHENTICATION AND LISTING ACT.
§5-30-1. State
Recognition of Native American Tribes.
(a) The Legislature of West Virginia finds and declares
that the recognition by the state of Native American Tribes is necessary to
protect and preserve the cultural heritage of certain citizens of this
state. State recognition of official
tribes would allow Native American citizens of West Virginia access to certain
educational opportunities, and certain economic development assistance and
would aid in the protection of certain unique cultural activities.
(b) This article shall be known as the "West
Virginia Native American Tribes Unique Recognition, Authentication and Listing
Act."
(c) This article should be liberally construed to
encourage and enhance state recognition of Native American Tribes where
recognized status is required to determine eligibility for educational,
cultural and economic development opportunities, incentives and programs,
including, but not limited to, applicable programs, grants, awards and
trademark recognition as required or recognized pursuant to the Indian Arts and
Crafts Act of 1990 and the subsequent revisions to Public Law 101-644.
§5-30-2. Definitions.
(a) As used in this article:
(1) "Executive Director" means the Executive
Director of the Herbert Henderson Office of Minority Affairs as appointed by
the Governor pursuant to article twenty-nine, chapter five of this code.
(2) "Indian" means an individual who:
(A) Is a member of an Indian tribe;
(B) Is certified as an Indian artisan by an Indian
tribe; or
(C) Is a direct lineal descendant of a person listed on
the base roll of an Indian tribe, whether or not such individual qualifies for
membership in the Indian tribe; or
(D) Is a direct lineal descendant of a person listed on
a judgment fund distribution list, roll or census of Indians or other document
prepared and approved by the Secretary of the Interior or his or her authorized
representative, whether or not such judgment fund distribution list, roll, census
or document is used by an Indian tribe to determine membership; or
(E) Is certified as a member of a recognized Indian
tribe by an Indian Organization recognized by this state pursuant to the
provisions of this article.
(3) "Indian Organization" means the Native
American Indian Federation Incorporated, the Appalachian American Indians of
West Virginia Incorporated, or other nonprofit Native American organization
that:
(A) Is chartered as a 501(c)(3) with the state in which
the organization is headquartered;
(B) Is dedicated to preserving Native American
principles, traditions, culture, history, language and arts;
(C) Performs free genealogical research to verify that
an individual meets the definition of "Indian" as defined in this
article; and
(D) Retains genealogical information collected on its
members; or
(E) Is recognized by a state legislative body as an
Indian Organization or group, in which a majority of its members are recognized
as Indians, or such organization is federally recognized as an Indian
Organization, shall be considered to have satisfied the requirements of this
article.
(4) "Indian Tribe," "Native American
Tribe", or "Tribe" means any Native American Indian Tribe, band,
nation or other organized group or community which:
(A) Is recognized by the United States Secretary of the
Interior; or
(B) Is recognized by any state in these United States
as enacted by Legislative action; or
(C) Is recognized by this state, or is seeking
recognition pursuant to the provisions of this article.
(5) "Office" means the Herbert Henderson
Office of Minority Affairs pursuant to article twenty-nine, chapter five of
this code.
(6) "State Recognized Tribe" or "West
Virginia Recognized Tribe" means any Native American Indian Tribe, band,
nation or other organized group or community as designated by this article or
as recognized in the initial enactment of this article or as recognized
pursuant to the provisions for recognition as proscribed by this article.
(7) "Secretary" means the West Virginia
Secretary of State.
(8) "Trademark", or "West Virginia
Native American Trademark" or "Native American Trademark" means
any word, name, symbol, mark or any combination thereof used by a person or
tribe to identify and distinguish a unique product, service or good, made or
provided exclusively in West Virginia by persons affiliated with or belonging
to any recognized tribe in this state. Notwithstanding any other provisions of
this code to the contrary and unless otherwise specifically implied in
connection with this article, the term "trademark" may not reduce or
restrict the authority of the Secretary of State to issue such trademarks and
require such application and fees as required pursuant to the provisions of
article two, chapter forty-seven of this code.
§5-30-3. Recognized Native American Tribes of West
Virginia.
(a) Upon enactment of this article the tribes and
qualified members of such tribes may be recognized as Native American Tribes of
West Virginia and Native American peoples of West Virginia including, but not
limited to, the purposes of:
(1) Establishing eligibility for various educational
opportunities, including, but not limited to, grants, loans and scholarships;
(2) Establishing eligibility for various economic
development and other incentive programs including, but not limited to, grants,
loans and gifts;
(3) Establishing eligibility for the issuance and
possession of unique trademarks for certain arts and crafts; and
(4) Establishing eligibility for participation or
affiliation in any sanctioned or recognized activity including as such may be
established pursuant to this article.
(b) The following tribes shall be officially recognized
as Native American Tribes of West Virginia unless added to or removed from this
list pursuant to the provisions of this article:
(1) Adena;
(2) Cayuga;
(3) Cherokee;
(4) Conoy;
(5) Delaware;
(6) Iroquois, including Mingo, Oneida, Onondaga and
Seneca;
(7) Ottawa;
(8) Shawnee;
(9) Sioux, including Blackfoot and Lakota;
(10) Susquehannock including Honniasont;
(11) Tutelo including Monacan and Saponi;
(12) Tuscarora;
(13) Uninh; and
(14) Wyandot.
(c) The following Indian organizations shall be
officially recognized as Native American Tribes of West Virginia:
(1) Native American Indian Federation Incorporated; and
(2) The Appalachian American Indians of West Virginia
Incorporated.
§5-30-4. Application for recognition of tribes.
(a) After the enactment of this article, Native
American Tribes may apply for and petition for recognition of additional tribes
as specified pursuant to this article:
(1) The burden of proof is on the petitioning group,
not the evaluators;
(2) The executive director may propose rules for
legislative approval in accordance with the provisions of article three,
chapter twenty-nine-a of this code for the purpose of requiring forms and
describing the process for the evaluation and approval of Native American
Tribes;
(3) The executive director shall review all requests
for recognition of Native American Tribes;
(4) The executive director shall propose state
recognition of Native American Tribes in the form of a rule, for legislative
approval in accordance with the provisions of article three, chapter
twenty-nine-a of this code;
(5) The executive director may recommend approval of a
request for the recognition of a Native American Tribe or Native American
people, if:
(A) The tribe or people are recognized by another state
or by the United States Secretary of the Interior;
(B) The groups members have retained a specific Indian
identity through time;
(C) The group demonstrates descent from a historical
Indian group that lived within West Virginia's
current boundaries at the groups first contact with Europeans; or
(D) The group traces the continued existence within
West Virginia for four generations to the present.
(6) Criteria to be used in the evaluation of a request
for recognition may include:
(A) Affidavits from elderly group members that the
group has identified internally as "Indian;"
(B) Affidavits by local area residents of descendants
testifying that the group or individual members identified themselves as
"Indian;"
(C) Local, state or federal records that show the group
or individual members identified themselves as "Indian;"
(D) Accounts by anthropologists that mention or
describe the group or individual members as "Indian" or by the name
of the group or individuals seeking such recognition;
(E) Colonial, local, state or federal records that show
the group, or individual members of it were identified as Indian or as their
ancestral tribe;
(F) Documents evident of the formation of an
organization, corporation, school, church or such institution that identified
the group as Indian or by the tribal name;
(G) Historical accounts including letters, reports,
diaries or other documentation describing encounters with the tribe;
(H) Letters or diaries from a government official
describing the group as Indian or by the tribal name;
(I) Treaties, resolutions, agreements or other
governmental records or correspondence pertaining to the groups lands or
activities, including any record of encroachment on such lands or activities;
(J) Census records, tax records, land deeds, land
patents, plat books or other records mentioning the groups location, members
living nearby or otherwise describing such community structures; and
(K) Genealogy records of any current member or living
ancestor appearing in public records as "Indian" or by group name.
(7) A petitioning group may be recognized if it has:
(A) A formally organized system of governance, with
established bylaws and with membership criteria restricting membership to
people proving genealogical descent from the historic tribe or from a historic
membership roll;
(B) A formal petition or letter of intent signed by a
simple majority of the members of the group seeking recognition; and
(C) Supporting documentation as described in this
section.
(8) When the executive director approves a request to
recognize a Native American Tribe, he or she shall include a description of the
application and documentation supporting the approval in the annual report
required pursuant to section one, article twenty-six, chapter five of this
code.
(9) A Native American Tribe may not be recognized until
such recognition is adopted by an Act of the Legislature or pursuant to the
provisions of this article.
§5-30-5. Prohibiting gambling activity; unauthorized
use of name or trademark; and penalty.
(a) Nothing in this article shall be construed to imply
or permit gambling or gaming as regulated by the West Virginia Lottery
Commission pursuant to the provisions of article twenty-two, article
twenty-two-a, article twenty-two-b or article twenty-two-c of chapter
twenty-nine of this code.
(b) No person may use a trademark as issued pursuant to
this article nor hold themselves out to be a member of a recognized tribe in
this state unless such trademark or membership is authorized and issued
pursuant to the provisions of this article.
(c) A person engaging in unauthorized use of any
trademark or the unauthorized use of the name or reference to any recognized
Native American Tribe of this state, is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not more than $2,500 or confined in a
regional jail not more than six months, or both fined and confined.
NOTE: The purpose of this bill is
to create the West Virginia Native American Tribes Unique Recognition,
Authentication and Listing Act.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.