Going to jail for giving someone the finger? Mattaponi governance dispute deepens.
Connie and Gloria Custalow, sisters and members of the Mattaponi Indian Tribe, stand on Capitol Square Wednesday after the annual tax tribute ceremony to protest the exclusion of women from tribal politics. (Ned Oliver/Virginia Mercury)
What if you could do time for flipping somebody off?
It’s not a classy move, but the middle-finger salute has been deemed by the courts as free expression protected by the First Amendment.
When Steven Custalow was accused of doing it a month ago to the chief of the Mattaponi Indian Reservation, it landed him in a jail cell for two nights and could possibly result in up to 12 months behind bars if he’s convicted in a Feb. 3 trial.
Custalow, exiled from residency on the Mattaponi Reservation in King William County where he is better known as “Wahoo” and his family’s roots go back centuries, unequivocally denies making such a gesture.
It’s the latest flash point in a bitter intra-tribal conflict among Mattaponi factions, one of which claims the other has assumed totalitarian control of the sovereign reservation where an unelected patriarchy has imposed its will for decades. Now, that faction is demanding free elections, including – believe it or not – the right for women to vote.
Mattaponi women lost their right to vote on tribal matters nearly a century ago – ironically, about the same time the ratification of the 19th Amendment enfranchised American women for the first time. That stands as a powerful political force driving organized efforts to democratize Mattaponi tribal government, according to Claire Guthrie Gastañaga, a longtime Richmond lobbyist, lawyer and former executive director of the Virginia ACLU who is advising the democracy movement pro bono.
But the current Mattaponi ruling regime has shown no sign of loosening its iron grip on nearly every aspect of life on the reservation, including who is or is not a member of the tribe and who is allowed to reside on the reservation.
In December, more than a dozen members of the tribe appeared in King William County General District Court to answer a complaint charging them with assault by mob and trespassing lodged by Mattaponi Chief Mark Custalow (no immediate relation to Wahoo).
The chief filed that complaint after some members of the tribe walked to his home on the reservation in late October with a petition saying they no longer recognize the self-appointed, all-male government and announcing their intent to hold the first open election since the mid-1970s. The group left the petition on the chief’s property and departed peacefully.
In that December trial, the court declined to convict the protesters and took the matter under advisement for a year, after which the charges will be dismissed, according to former Virginia Attorney General Tony Troy. He and his law partner, state Sen. Bill Stanley, R-Franklin County, represented the Mattaponi dissidents last month and are also counsel for Wahoo in his Feb. 3 trial – all of it pro bono.
The Mattaponi schism goes back ages, rooted in a fork in the Custalow family tree dating to the 1800s, said Ginger Ragan, an ally of and advocate for the democracy movement who sat down with Wahoo and fellow tribal democracy advocate Lonnie Custalow recently for an interview. One branch of the family assumed effective control of the reservation, they said, and now exercise sweeping authority in what amounts to a patriarchal monarchy. Challenges to that authority, as many dissidents have learned, can result in criminal charges.
There was no reply to two messages sent last week to email addresses for Chief Mark Custalow and Assistant Chief Leon Custalow that are listed on the Secretary of the Commonwealth website for the Virginia Indian Advisory Board. Both men are listed as Mattaponi Indian Reservation representatives to the board.
After the October free-elections protest, the chief obtained protective orders barring Wahoo and others whom he accused of trespassing on his property and threatening him from coming near him or communicating with him. Evidently, that includes manual gestures.
According to the chief’s affidavit in his complaint, Wahoo was driving around the reservation, about 35 miles northeast of Richmond alongside the Mattaponi River, on Saturday, Dec. 11, while the Tribal Council was meeting. “I look out the window as he was driving by and he gave me the middle finger,” Mark Custalow wrote in the complaint.
Wahoo and Troy said the building where the Council was meeting is set back about 150 feet from the nearest point in the street where Wahoo’s truck could have been, casting doubt on whether any gesture made from within the truck’s darkened cab could have even been visible inside the building as the chief contends.
That evening, according to Wahoo and Troy, a King William County deputy sheriff showed up at his home, arrested and cuffed Wahoo, fingerprinted him and drove him to a regional jail in Saluda.
“He grabbed me by my wrists, told me not to give him a hard time, and I didn’t,” Wahoo said. “I asked him ‘What for?’ and he said it was for flipping the chief off.”
Wahoo remained there, isolated in a cold cell where he said bright lights blazed around the clock until the following Monday, when he was released on his own recognizance. He would have stayed there until a Thursday bond hearing had Troy not heard of his detention, called King William Commonwealth’s Attorney Matthew Kite, arranged for an expedited hearing before a magistrate and his release.
Kite declined to discuss Wahoo’s case when contacted by phone. He noted, however, that the charge did not originate with his office but from a citizens’ complaint, and that his office has a duty to represent the commonwealth in such cases. He unequivocally rejected the opinion by Ragan and Lonnie Custalow that his office does Chief Mark Custalow’s bidding.
It’s clear, however, that proceeding to trial on a case that could result in a jail sentence for allegedly doing something that happens with impunity countless times every day in rush-hour traffic or at sports events when the refs blow a call covers neither the tribal leadership nor King William County law enforcement in glory.
But with 2½ weeks remaining before Wahoo’s court date, nobody’s backing down.
Wahoo says that suits him. He’s convinced he is right and unshakable in his account about the events of Dec. 11. He said he wants to tell his story to the court and anyone else who will listen, so he’s not hoping for a plea deal to make this unpleasantness quietly go away.
“I don’t need a bargain. I just need the truth to be told,” he said. “I don’t want to keep it out of court. You got to be guilty to want to keep something out of court.”
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