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Mattaponi's 1677 treaty rights under court review

RICHMOND, Va. - Unresolved questions over Virginia courts' power to
interpret and enforce a 1677 treaty that protects the Mattaponi Indian
Tribe from development on or near its reservation have been forwarded to
the Virginia Supreme Court.

A well-known document signed by Virginia Indians and the English in the
17th century just may provide the relief that the Mattaponi Indians need in
their fight against a 1,524-acre reservoir that would flood sacred sites,
harm their shad hatchery as well as affect their cultural and religious
practices.

The Court of Appeals of Virginia, in its opinion of the tribe's second
appeal of a state permit issued to Newport News, wrote it couldn't resolve
the 1677 Treaty at Middle Plantation issues because it didn't have
jurisdiction. It wrote that the Virginia Supreme Court alone has
jurisdiction, and it transferred that part of the tribe's appeal to the
Supreme Court.

Again, though, the Court of Appeals wrote that the State Water Control
Board followed state statutes in granting Newport News a permit in 1997.
This permit will allow the city to withdraw water from the Mattaponi River
for the reservoir, which is to be constructed next to the tribe's
reservation.

Even though the lower courts have continued to dismiss the tribe's treaty
claims, the Mattaponi Indians, too, have requested that the Supreme Court
review these claims.

"We will be affecting that transfer asking the Supreme Court of Virginia to
take the case," said David Bailey, attorney for the Mattaponi. "It's
discretionary with them."

The tribe's members, descendants of Pocahontas, argue that the State Water
Control Board, as an agency of the Commonwealth of Virginia, has to
consider the tribe's treaty rights, and the board declined to do so, Bailey
said.

"And the Court of Appeals said that was 'OK,'" he said. "The second part of
the tribe's appeal was the board was required to determine and protect the
existing uses of the Mattaponi River by the tribe."

The Court of Appeals, Bailey said, wrote in its opinion that the State
Water Control Board balanced the needs of the reservoir with the needs of
the tribe. But the tribe argues that the board couldn't achieve a balance
because the tribe's shad hatchery and cultural uses of the river would be
affected.

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"We think the law requires the State Water Control Board to protect the
tribe's uses period," Bailey said.

In 2003, the tribe and others opposed to the reservoir received a victory
when the Virginia Marine Resources Commission denied Newport News a permit
to place an intake pipe in the Mattaponi River. This would allow the city
to pump up to 75 million gallons of water a day to the reservoir. But the
city sued the VMRC, requested a formal hearing, and in August, the VMRC
granted the city that permit.

Before this action, the Mattaponi and numerous environmental groups sought
to intervene in the suit on behalf of the VMRC. A Norfolk Circuit Court
judge, who was appointed to review the case, however, dismissed their
request and granted Newport News a second hearing.

The tribe then appealed the intervention denial to the Court of Appeals,
which dismissed its claim - because the judge hadn't issued a final order
in the case before the appeal was filed. The dismissal, however, came after
the VMRC held a second public hearing in August this year.

"We're appealing the Court of Appeals' first decision on the intervention
because the tribe had a right to the claim and the Court of Appeals should
have heard it immediately," Bailey said. "When the courts denied the
tribe's appeal and made them wait, the tribe lost all of the rights it had
had it been allowed to intervene."

The Mattaponi Tribe maintains that the State Water Control Board in 1997
ignored the tribe's treaty issues when it issued the water withdrawal
permit, and this was devastating to the tribe, Bailey said.

The board's action prompted the tribe to present its treaty claims to the
Virginia Attorney General's Office. But the Attorney General said the
tribe's treaty rights had been abolished. It also noted that development
had been made around the reservation over the years with more than 150
homes, the King and Queen County courthouse, a landfill, boat landings,
public highways and cemeteries, according to the Court of Appeals' opinion.

With these in mind and because the treaty had been written to prevent
violence between the Indians and the English, "the Attorney General
concluded that the tribe had no enforceable legal right arising out of the
treaty that would preclude the proposed water project," the Court of
Appeals wrote.

The tribe then appealed the State Water Control Board permit, explaining
its treaty claims to the Newport News Circuit Court, but the court
dismissed its claims. The Court of Appeals upheld the Circuit Court's
decision, which the Virginia Supreme Court reversed in 2001. The Supreme
Court sent the case back to the Newport News Circuit Court. But last year,
the Circuit Court dismissed the tribe's treaty claims again, stating that
courts had no jurisdiction to act on the tribe's treaty.

"For the moment, the tribe is yet to have its day in court on the treaty,"
Bailey said. "It's been a slow and difficult process in Virginia. It
reflects the political power Newport News has. So far, it has squashed the
tribe's treaty."