
DATE: Sunday, April 6, 1997                 TAG: 9704070376

SECTION: FRONT                   PAGE: A1   EDITION: FINAL 

SOURCE: BY ROBERT LITTLE, STAFF WRITER 

                                            LENGTH:  192 lines

`WE'VE HAD ENOUGH' MATTAPONI TRIBE CITES 320-YEAR-OLD TREATY TO THWART COUNTY'S RESERVOIR PLANS

You can read the years in Webster Custalow's crooked fingers like lines in a tree trunk.

Time was he struck a formidable pose, Custalow will tell you, hauling railroad ties off the saw mill or hoisting 100-pound bags of salt around the cucumber-pickling plant during the Great Depression. Now he stands about chest-high to a door knob, coiled under as if all 85 of his birthdays were in a sack tied around his shoulders.

Even the shad and the terrapin in the river out back don't fear him much anymore. These days, Custalow says, strength comes from his family.

That family is Virginia's Mattaponi tribe of American Indians, of which he is chief. And it's so strong that a $200 million development project could derail because of it, thwarting the King William County government and the Newport News City Council.

Citing a 1677 treaty, the Indians who live on Virginia's Mattaponi reservation are challenging plans for a 1,400-acre reservoir nearby. They say it would kill the fish spawning in tribal waters and violate a guarantee from England's King Charles II that nothing would be built within three miles of their land.

Government officials are investigating the claim, and they aren't sure what to make of it. The treaty had always made for nice Thanksgiving Day storytelling, but no one has ever tried to enforce it as a matter of law. The courts might ultimately have to decide whether it can still be enforced.

If the 20 families on the Mattaponi reservation succeed, they will have won a battle their ancestors forever lost. And they will do it armed only with a 320-year-old pact with the King of England and a few thousand years of heritage.

I've been thinking about it a long, long time,'' Chief Custalow said Friday, standing in a corner of the 150- acre reservation, on the banks of the Mattaponi River.

``I'm a person that from my youngest days God always showed me visions, and I have had a vision on that reservoir. I see terrible things.

``I'm sure you've read in books that wind and water are the most powerful things on the face of this Earth. We know that from living. And when you try to cage that up, man has no method of stopping what can happen.''

King William County officials are planning to build the reservoir about two miles from the edge of the Mattaponi reservation. With a peak capacity of 75 million gallons a day, the reservoir would supply the city of Newport News with drinking water through 2040.

The benefits to the surrounding rural county of 11,000 could be enormous. Newport News would pay $150 million or more over the next 50 years. King William could draw as much water as it needs, assess acres of new waterfront property and get five recreation centers and boat landings for its residents.

For a government with annual revenue of about $20 million, the deal is like finding a diamond mine. County officials have worked on the project since 1987, and are willing to buy all the land around the small Cohoke Creek.

They hope to have a permit from the Department of Environmental Quality soon after the public comment period closes April 15. The Army Corps of Engineers would be next. The new lake won't yield a glass of water until 2005 at the earliest.

``Nobody involved in this project expected it to be a free ride,'' King William Administrator David Whitlow said. ``But this is a tremendous opportunity. It's not like it's going to be an eyesore and a detriment to property values.''

The Mattaponi don't care so much about eyesores. The reservoir won't flood any of their reservation, but they dispute government claims that increased salinity won't affect fishing on the Mattaponi River.

And property values aren't even worth discussing. Their property has value because the Mattaponi have lived there 1,000 years or more.

``All through the years, this is how we lost our land - because we don't have the numbers, or the political clout,'' said Assistant Chief Carl Custalow, Webster Custalow's son and the manager of most tribal affairs.

``But just because you're small, you don't have to let people walk all over you. For years we've never exercised our treaty rights. Well, now we've had enough.''

Virginia has eight recognized Indian tribes, but only the Mattaponi and the Pamunkey have designated reservations. The Pamunkey reservation is a few miles from the Mattaponi, but its boundaries would not be encroached by the reservoir.

The tiny Mattaponi reservation is two miles of wooded backroad from Route 30, a main artery through King William County. It is marked by a faded, plywood sign reading ``See Mattaponi Indian Museum. Stone Age Relics 1,000 Years Old.''

The community is a cluster of old cars and picnic tables around trailers, brick houses and rickety wooden shacks with rusty tin roofs.

The government has been consis- tent in honoring one aspect of the Indians' treaty rights: Residents don't have to pay real estate tax for their land, or personal property tax for their vehicles. But they also don't actually own their land; It's kept in trust and passed down to new generations. The houses are modest because no one can get construction loans without a deed for collateral.

There are other privileges still extended the Indians. They can hunt and fish without a license, and hook into community power lines and phone lines tax-free.

If they make a living on the reservation they are exempt from income tax. If they buy and sell goods among themselves, they are exempt from state sales tax, too.

But reservation life is not one of luxury. The village is nearly indistinguishable from any low-income community in eastern Virginia. Only the scattered tepees - largely for the tourists - stand out.

Few Indians earn a living on the reservation any more. Carl Custalow, who still makes some money fishing the river, works for an insurance agency in Mechanicsville, for instance. His two children have moved away. He hopes they'll come back.

But the river doesn't yield barrels of terrapin or a net full of catfish from shore to shore anymore. And the state's restrictions on shad or rockfish make things even tougher. Some residents sell art or beadwork, a tough way to make a buck when you're miles from the nearest ATM.

``All my life, I've fished out there. From a little boy on up,'' said Chief Custalow. ``You had to eat the fish, you had to get out here and dig in the earth to get what you needed to live. We couldn't go to a place and buy fancy stuff.< ``A lot of that's changed, I know, but I saw something with these two eyes I hope I never see again. I saw people starving. Children, little ones, that looked like old people the way the skin was hanging on their bones. We wouldn't be here today without that river.''

The reservoir - and whatever it does to Indian burial grounds, campsites or to the water on the river - is just the latest of government's indignities, tribe members say.

``We always look seven generations ahead,'' Carl Custalow said. ``You take somebody like Newport News, they're looking right now - for the business. For the dollar.''

Two months ago, the Mattaponi sent a letter to the state attorney general's office announcing their intention to invoke colonial treaty rights to block the reservoir.

State lawyers have been looking into the issue, but don't know when they'll have something to say.

``This touches on at least three areas of law and several state agencies,'' said Don Harrison, spokesman for Attorney General Jim Gilmore. ``It deals with treaty law, historic preservation, water rights - this is fairly complex.''

According to a peace treaty between 12 Virginia Indian chiefs and King Charles II, signed May 29, 1677:

``Noe English shall seate or plant nearer than three miles of any Indian Towne, and whosoever hath made or shall make any encroachment upon their lands shall be removed from thence.''

The Mattaponi and Pamunkey are descendants of the chiefs who signed the pact. The three-mile buffer was created so colonists and Indians would stop killing each other, the treaty suggests.

In return, the Indians swore allegiance to the British crown. And they promised to return the children and horses they'd taken, to stop killing cattle and hogs and to refrain from any other injustice ``which hath involved this Country into soe much Ruine & misery.''

Their annual payment, ``in Liew of a Quitrent,'' would be three Indian arrows and 20 beaver pelts.

That tradition has continued. Every Thanksgiving, members of the Mattaponi and Pamunkey tribes leave some turkeys, some beaver pelts or a deer or two outside the governor's mansion as payment in full.

The attorney general might weigh in soon, but the issue could take years to resolve if the Indians take it to court. They have little money, but are trying to build a coalition of native Americans L throughout the country to pitch in.

``The people, the heritage have been there since before this country was even founded. Why would anyone want to take that away?'' asked Thomasina Jordan, head of the state Council on Indians, a governor-appointed committee that oversees Indian affairs.

``It's not so much the treaty that matters, it's beyond that. There's so little left of the American Indians that to take away any more would be a real tragedy.''

ILLUSTRATION: NORM SHAFER color photos/The Virginian-Pilot

Two members of the Mattaponi tribe bring in their morning catch

after fishing in the Mattaponi River in King William County. Members

of the tribe oppose plans for a nearby reservoir that would supply

water to Newport News because they fear it will harm fish-spawning

in tribal waters.

Chief Webster Custalow

Map

The Virginian-Pilot

SOURCE: Staff research

NORM SHAFER photos/The Virginian-Pilot

Assistant Mattaponi Chief Carl Custalow says his tribe has lost land