Mattaponi fight flooding of cultural sites and gathering grounds

MATTAPONI INDIAN RESERVATION, Va. - From his living room window, Carl Custalow watches the tides of the Mattaponi River, ebbing in and out. On a clear day, he can see thousands of acres of woodland stretch across what is now King William County, Va., a place where Algonquin Indians hunted, fought and buried their ancestors.

Before the English arrived in the early 1600s, the Great Chief Powhatan governed a confederacy of many nations that relied on the shad in the Mattaponi River for their sustenance. Back then, the river belonged to them.

Now, Custalow, assistant chief and spokesman for the Mattaponi Indian Tribe, and other descendants of Pocahontas reside on what is left of their reservations, established before the United States became a nation.

For a decade the Mattaponi Tribe has directed its energy at fighting the city of Newport News from flooding thousands of acres of land near the reservation for a reservoir.

The Mattaponi filed a lawsuit against the State Water Control Board of Virginia several years ago for granting a permit to Newport News for the reservoir. A 1677 treaty the tribe signed could help it protect the reservation from encroachment - movement on or near their lands.

"The tribe has asserted its treaty rights," said Michael Beach, staff attorney with the Institute for Public Representation of Georgetown University Law Center representing the Mattaponi. "The tribe was to be free from unwanted encroachment, and the treaty gave them even more broad geographic rights to fish and gather. Both of these are violated."

Their lawsuit was dismissed in Newport News Circuit Court as well as the Virginia Court of Appeals, which said the tribe had no standing to bring its claims. However, the Virginia Supreme Court in 2001 reversed the Court of Appeals' decision, allowing the tribe's case to proceed in Circuit Court. The Mattaponi's case could go to trial in October.

What's at stake for the Mattaponi, the Upper Mattaponi and the Pamunkey tribes are their cultural heritage and identity, fisheries, historic hunting and gathering grounds, 437 acres of wetlands, cultural sites as well as protection of their reservations - things they say money can't replace.

For Newport News, the proposed reservoir would allow the city to pump thousands of gallons of water to potential customers of Newport News Waterworks, which according to some critics is in the business to make money.

Approving the reservoir project

The issue of halting construction of a 1,500-acre reservoir remains more complicated than just suing the state.

The final approval for the reservoir, which would withdraw up to 75 million gallons of water a day from the Mattaponi River, rests with the U.S. Army Corps of Engineers' North Atlantic Division office in New York.

Political maneuvering sent the project to New York two years ago after the Army corps' Norfolk District engineer, Col. Allan B. Carroll, announced his intention to deny the reservoir permit. Carroll cited a lack of need for the additional water as the primary reason.

But six months ago, Brig. Gen. M. Stephen Rhoades of the North Atlantic Division office reversed Carroll's decision. In fact, Rhoades gave Newport News the chance to complete several requirements before the Army Corps would consider final permit approval.

"The Corps denied this thing. Then, the Corps came later and supported it," Custalow said. "We haven't given up hope, and we are going to fight this to the end since it has been proven that Newport News doesn't need the water."

Virginia politics played a significant role in getting the Army Corps to reverse its decision. When the Norfolk District office engineer made known his intentions to deny the permit, Newport News sought help from state officials.

"We told Newport News that we had information that their need was not there," said Pamela Painter, Norfolk District environmental scientist.

On June 8, 1999, just four days after Carroll wrote a letter to the city stating he planned to deny the permit, he received a letter from then-Gov. James Gilmore, asking the Army Corps to change its decision.

"The receipt of his opposition to the district's opinion invoked a Corps regulation that states if a district office decision conflicts with a governor's opinion, then the project must go to the Corps' division headquarters," Painter said. "It appears that the governor accepted what Newport News submitted at face value without critical scientific review."

Although Painter said Gilmore had no knowledge of this regulation, supporters of the Mattaponi say Newport News was told to seek help from the governor to have the case moved to the New York office.

David Morris, Newport News Waterworks natural resources manager, said the city, which began working on the project in the early 1990s, had never been told before June 1999, that it was going down the wrong path until Carroll said the permit was going to be denied.

Carroll's recommended denial and the reasons for it were published in a 355-page report March 20, 2001.

But Rhoades reversed the Norfolk District's opinion Oct. 1, 2002, and gave support of the project in his 13-page report. This decision indicated to the Mattaponi that the Army Corps intended to side with Newport News, and it was a decision that some scientists in the Norfolk District office didn't expect.

This reversal came as a tough blow to the Mattaponi Indians and their supporters.

"While we are discouraged with the October decision, we haven't given up the fight, and we're continuing to explore all legal and political options in our ongoing efforts to stop a project that would be devastating to the tribes' culture and way of life," Beach said.

The reservoir's future

For now, Newport News Waterworks has a number of requirements before the Army Corps will even consider permitting the reservoir.

The city must complete a plan to relieve any wetland destruction, obtain a certificate from the Virginia Marine Resources Commission and complete a historic preservation plan that would provide compensation to the tribes.

"Of all the places in the Commonwealth, the city picked the one spot that is in the middle of the only two reservations in the state," Beach said. "This will flood and inundate hundreds of acres of wetlands, cultural sites and traditional fishing and gathering grounds, and worse yet, the project will withdraw water up 75 million gallons of water per day from the Mattaponi River. This will negatively impact the tribes uses of the river, both for shad fishing and religious purposes."

The Mattaponi and Pamunkey Indians, Powhatan's descendants who reside on a reservation also near the proposed reservoir site, have relied on the shad in the Mattaponi and Pamunkey rivers for centuries for their sustenance, and they replenish the rivers with shad raised in their hatcheries. They say the withdrawal of water from the river could harm the shad and other fish.

Custalow said the water withdrawal from Newport News' proposed reservoir, a 1,500-acre creation, could increase the Mattaponi River's salinity, killing the fish. Army Corps scientists noted the potential for increased salinity in their report.

"Over time, it will harm the ecosystem," Custalow said. "This river will become a creek. They fail to use common sense in understanding that the Mattaponi live here off of the river, and we don't want to see the reservoir destroy this area."

But Morris said the city would withdraw a limited amount of water, depending on the amount in the river. The river, he said, has an average flow of 500 million gallons a day at the intake site, and the amount of water the city proposed to take would be regulated by the state.

Cultural and historical losses

The Norfolk District office stressed in its report that the Mattaponi, Upper Mattaponi and Pamunkey tribes stand to lose culturally. Newport News must compensate them in some way, but the tribes argue that there is no just compensation for their losses.

"Prior to the Norfolk decision, we had been asked by the Environmental Protection Agency to make deals with each tribe," Morris said. "That didn't go well. That was a lesson learned."

The tribes were each offered an undisclosed amount of money, but all declined the offer.

The city also needs to investigate archeological sites, curate any artifacts found and explain how it will provide compensation for "real or perceived impacts," Morris said. It conducted 3,000 shovel tests on various locations at the proposed reservoir site.

"We did find campsites of early people," Morris said. "We may find other things. We found Colonial sites; we have to determine how significant are they."

After determining the significance of these sites, the U.S. Advisory Council on Historic Preservation, the Virginia Department of Historic Resources and the Army Corps have to decide if the city can provide just compensation to the tribes for their losses.

Newport News has rebuffed some of the Mattaponi's claims that sacred sites would be lost on the reservoir site.

In meetings with the Army Corps, the tribal members and others involved in the project, Newport News officials have also accused the Mattaponi of fabricating stories about sacred sites located on the property where the reservoir would be constructed, according to the Army Corps' Norfolk District report.

The city also argued that a potential lack of water to the larger minority African-American communities on the lower Peninsula is more significant than the cultural and economic losses of the tribes, according to the Norfolk District Army Corps' record of decision.

"This reservoir project is no different than what we've experienced from the 1600s through today," Custalow said. "It all stemmed from greed, and people wanting to control."