Search warrant issued over Mattaponi Council recordings will be dropped, prosecutor says

A search warrant King William County authorities obtained in August for records from online giant Google relating to covert recordings of closed Mattaponi Tribal Council meetings will be voluntarily rescinded, an official said Tuesday.

“We’re not pursuing it,” said King William Commonwealth’s Attorney Matt Kite.

The warrant, issued by a magistrate in James City County and served on Google’s Mountain View, California, headquarters, sought to identify who provided surreptitious audio recordings of three Tribal Council meetings late last winter to the Mattaponi Voice, a YouTube channel that serves as an independent, online publication serving the Mattaponi people which made the recordings public. Google owns YouTube.

The Voice was unaware that the source of recordings of Tribal Council meetings on Feb. 6, Feb. 20 and March 20 of this year was the subject of a search warrant until November, more than two months after the warrant was issued, said Claire Guthrie Gastañaga, a lawyer and former Virginia ACLU executive director representing the Voice pro bono.

The effort by the King William Sheriff’s Office to gather a wide array of data about how the secret recordings were made public comes amid deepening tensions within the tribe over the unelected and secretive governance of the sovereign Mattaponi reservation.

Opponents of the current men-only governing body headed by the tribal chief say no elections for seats on the council have been held since the 1970s. Information about the council’s meetings is not made public and women have never been allowed to vote on tribal leadership or policy matters, they contend.

After a group of protesters left a petition at the home of Chief Mark Custalow on the reservation notifying him that they would no longer recognize the council’s authority and would hold open elections, Custalow filed misdemeanor charges of trespassing and assault by mob against 13 people. Their cases are scheduled for trial on Dec. 16 in King William General District Court.

In an affidavit filed in support of the search warrant, a King William sheriff’s detective whose name has been redacted from the document states that the recordings were made “without the authorization of the Mattaponi Tribal Council.” The recordings, the affidavit attests, included “confidential information such as tribal member names, projects and financial information involving the Mattaponi Tribe, which is a Sovereign Government.”

Because Virginia is a “one-party state,” any person who is a party to a conversation or present at a meeting can record it without the consent of others, Gastañaga said. The affidavit raises the possibility that the recording may have been made illegally by someone not present – a violation of the state wiretapping statute.

“All tribal members present (at the Council meeting) during the dates listed … denied recording or giving permission to record. Four recordings were found posted on social media sites without any type of tribal council authorization,” the affidavit read.

The Voice YouTube channel posted two versions of the March 20 meeting.

Gastañaga said there is no evidence that an absent third party obtained the recording. She also said that the Voice could publish the recordings as long as it did not illegally obtain them regardless of whether the source of the recordings obtained them through legal or illegal means under U.S. Supreme Court precedents in its Pentagon Papers and Bartnicki v. Vopper rulings among others.

Neither Gastanaga nor Kite knew how long it would take to void the search warrant or the precise process for it as of Tuesday.