The Mattaponi tribe asserts a deal struck with King Charles II's representatives gives it rights to oppose the Newport News plan -- The Virginia Supreme Court may soon hear arguments on the validity of a 1677 American Indian treaty in a case that could be a landmark for the legal rights of Virginia's tribes. The case could also slow efforts by Newport News to pull water from the Mattaponi River into a pipeline leading to a 12.2 billion-gallon reservoir. The Virginia Marine Resources Commission recently gave Newport News a permit to proceed with those plans. An Aug. 31 Virginia Court of Appeals opinion upheld on environmental grounds the state's approval of permits for the King William Reservoir that Newport News plans to build. That court ruling forwarded the treaty issue to the state Supreme Court. At stake is the meaning of a treaty signed 327 years ago between Indian tribes that have since clung to their historical and cultural identities and a government that's no longer in existence on Virginia soil - the colonial authority of the Crown of England. The Mattaponi Indian tribe is asserting its treaty rights to fight the reservoir. The tribe's attorneys believe it's the first time in Virginia history that a tribe tried to protect its treaty rights in a post-colonial courtroom. Gloria Valencia-Weber, a professor and an expert in Indian law at the University of New Mexico's American Indian Law Center, said colonial treaties are considered binding by international as well as U.S. law. Bruce Duthu, a professor of law and expert in Indian law at the University of Vermont School of Law, said a 1985 New York case that went to the U.S. Supreme Court is a recent example of the courts establishing the U.S. as successor to the crown, validating the treaties. The state of Virginia would have had to expressly cancel the treaty to invalidate it, he said. The Treaty of 1677 was signed May 29 at Middle Plantation, which became present-day Williamsburg. It concluded negotiations between representatives of King Charles II and several Virginia tribes, among them the Mattaponi, Pamunkey and Nansemond. A provision in the treaty called for a three-mile boundary around Indian villages, a territory where English could not encroach by building homes or planting crops. And, the treaty says, "whosoever hath made, or shall make an Incroachment upon their Lands, shall be removed from thence ..." The tribe argues that the infrastructure that would pump water from the river to the reservoir should not be allowed because it falls within this three-mile buffer. Another article in the treaty calls for any disputes between Indians and the English to be settled by the colonial governor. According to the Court of Appeals opinion, the Mattaponi presented its treaty claim to the Virginia Attorney General because the tribe considered the state a successor to King Charles II. The tribe sought to have the state enforce its treaty rights. But the state attorney general's office replied that the relevant portions of the treaty had long been ignored, in effect canceling the tribe's enforceable legal rights. To back its claim, the state showed how much development has occurred in the three-mile buffer around the Mattaponi's 150-acre reservation. In that zone stands more than 150 homes and other structures, several churches, a school and the King and Queen County Courthouse, according to the Court of Appeals opinion. Additionally, there are 13 public roads, 10 millponds, several boat landings, cultivated fields, cemeteries, a gravel pit and a landfill. Tim Murtaugh, the spokesman for Attorney General Jerry Kilgore, said that the state respects the heritage of the Mattaponi. But, he said, the reservoir is not being built on land covered by the treaty. "Even if it were," he said, "the treaty does not grant them rights to the land." The Mattaponi argue the reservoir will have a detrimental effect on their culture and threaten the shad fishing on the Mattaponi River that has been a hallmark of the tribe's existence for centuries. Eric Albert, an attorney from the Georgetown University Law Center who is representing the tribe, said there's evidence that Indian tribes had access to colonial courts. But over the years, the tribes have not tried to enforce the three-mile boundary issue. "The Mattaponi have historically turned the other cheek when their rights have been infringed upon," Albert said. Although the tribe hasn't asserted its treaty rights, the tribe has conducted its affairs in accordance to the treaty, Albert said. Every year on the fourth Wednesday in November, the Mattaponi pay tribute to the Virginia governor - as required in the treaty - by presenting the governor with game, typically a deer. The governor has always accepted the tribute, Albert said, in effect stepping into the shoes of the colonial government that preceded the state government installed at the creation of the United States of America. Briefs from the Mattaponi's attorneys are due at the end of the month. The state attorney general has 30 days to respond, and the Supreme Court will then decide whether to hear the case. |
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