The Bulletin

Obscene gesture violated Mattaponi chief’s protective order, court finds

By: - February 4, 2022 12:02 am

A member of Virginia’s Mattaponi tribe who has protested tribal government was convicted Thursday of violating a court-issued  protective order by giving the tribal chief the finger in December.

Steven “Wahoo” Custalow was sentenced to five days in jail and fined $200 plus court costs by King William County General District Court Judge Stephen A. Hudgins on the single misdemeanor count, said his attorney, Tony Troy.

Troy, a former Virginia attorney general who is representing Steven Custalow pro bono, immediately appealed the case to King William County Circuit Court. The sentence is stayed pending a hearing on the appeal tentatively set for Feb. 16.

According to Chief Mark Custalow’s affidavit in a complaint on which the charge is based, Steven Custalow was driving his pickup truck around the Mattaponi reservation about 35 miles northeast of Richmond on Dec. 11 and raised his middle finger toward the building where the chief and tribal council were meeting as his truck passed by — a distance of approximately 150 feet.

Steven Custalow was arrested that night by a King William County deputy sheriff and spent two nights in a regional jail in Saluda before being granted a bond hearing. 

On Thursday, Steven Custalow denied making any gesture, but admitted that he and Mark Custalow are not on friendly terms.

“The judge asked him, ‘You don’t like the chief, do you,’ and Steven’s response was, ‘He doesn’t like me and I don’t like him, and I just try to stay away from him,’” Troy said.

Mark Custalow and Steven Custalow are not immediately related.

The conviction is part of a protracted feud between Mark Custalow and a group of Mattaponi dissidents who accuse him of perpetuating a secretive, un-elected tribal government. 

Going to jail for giving someone the finger? Mattaponi governance dispute deepens.

Steven Custalow is part of the dissident group that has clashed with the chief and council in publicly pressing their demands for open and free elections and to restore the right of women tribal members to vote in them.

The U.S. Supreme Court has held that obscene gestures are free speech protected by the First Amendment. Thursday’s case, however, was restricted to whether the alleged gesture violated a protective order the chief was granted after Mattaponi dissidents demonstrated in support of open elections outside his home last fall and left a petition calling for the elections outside. 

The chief charged more than a dozen of the protesters with trespassing and assault by mob in King William General District Court.

In a December trial, the judge took the cases under advisement for a year after which they will be dismissed.

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