Introduced Version
House Bill 2779 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2779
(By Delegates Stephens, Fleischauer,
Perdue and Young)
[Introduced March 1, 2013; referred 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 of 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 in, 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 of 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, 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 county or 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.
This article is new; therefore, it has been completely
underscored.