Coal port faces huge obstacle in Lummi opposition

Lummi Nation then-Chair Cliff Cultee (left) and Hereditary Chair Bill James with the check they will burn at Cherry Point. Credit: Photo: Floyd McKay

Lummi master carver Jewell James is taking another ceremonial totem pole on a long trip, but this time it won’t be going as a healing pole — like those he carved for the three 9-11 sites — this pole is a political and cultural statement aimed at the export of coal from ports in the Pacific Northwest.

The pole is taking shape only a few miles from the proposed site of the largest coal terminal in the region, at Cherry Point north of Bellingham on Georgia Strait.

It’s a site that James and other Lummis regard as sacred; their ancestors lived, fished and died at Cherry Point through the centuries before white men discovered the area, imposed treaties on the natives and pushed them onto reservations.

The reservations are still there, as are the natives, and pressure continues to bring industry with its economic development, jobs, shipping, railroads, pollution, threats to native fishing areas and trampling of ancient grounds. Over the last two centuries, Cherry Point has seen two oil refineries, an aluminum plant and now plans for yet another giant industry.

Now, the Lummis appear to be well-positioned to play a key, perhaps the most critical role, in determining the fate of a huge proposal to export coal to China from Cherry Point. If the tribe's objections to the port hold and their treaty rights under federal law withstand any legal questions, the path to approval of the port planned by SSA Marine of Seattle faces a giant obstacle. Company officials, for their part, say they believe the plan can win support from the tribe.

SSA Marine wants to export 48 million tons annually of Powder River Basin coal, and this time the Lummis are deeply dug in. Their line was first drawn a year ago when Lummi elders burned a ceremonial million-dollar check on the beach at Cherry Point and declared no compromise or financial offer would change their opposition to the Gateway Pacific Terminal (GPT).

Lummi speakers were forceful at seven public meetings last year hosted by public agencies charged with reviewing the proposal. Tribal leaders have hosted public events in Whatcom County, where the fate of two key permits will be decided. They even wrote a play, “But What About Those Promises?” to dramatize exploitation of their ancestors.

Up next is the totem pole, which begins its journey about Sept. 19 at the Powder River Basin coalfield in Wyoming and follows by truck the long and winding rail route to Cherry Point. Ceremonies and rallies along the way will reach Seattle and Cherry Point about Sept. 27 to 29.

The Lummis, with regional tribal support, are mounting a two-pronged attack on GPT: the cultural side, headed by James and associates in the Lummi Sovereignty and Treaty Protection Office; and a resource side, relying on key federal court decisions protecting “Usual and Accustomed” fishing rights granted in treaties dating to 1855.

Lummis are quick to say the two items are inseparable because salmon is integral to every aspect of their — and all Salish tribes' — life. Scholars support that claim and note that Salish tribes have never deviated from their relationship with salmon.

“Prior to and following the arrival of Euro‐Americans, the shorelines of Cherry Point were used as fishing villages and the tidelands and waters of Georgia Strait were used to harvest fin‐ and shellfish for commercial, subsistence, and ceremonial purposes,” Lummi chairman Tim Ballew II said in 24-page letter to the U.S. Army Corps of Engineers in January. "Although the Lummi Nation still fishes the waters of Georgia Strait, the resources have been degraded by human activities and shoreline development has precluded the use of traditional hunting, fishing, and gathering sites along the shorelines.”

The Corps has jurisdiction over wetlands and piers and it must deal directly with the 5,000-member tribe in a “government to government” manner honoring tribal sovereignty.

Corps officials said in July that if the Lummi and SSA Marine can’t agree on ways to mitigate damages caused by GPT, then the Corps would need to consider halting the proposal.

In a short but emphatic response, Lummi chairman Ballew told District Engineer Col. Bruce Estok: “The Lummi Nation cannot see how the proposed projects could be developed in a manner that does not amount to significant impairment on the treaty fishing right and a negative effect on the Lummi way of life. Please recognize this letter as a clear statement of opposition to these projects from the Lummi Nation.”

Ballew left open the door for talks with the Corps, and Estok will meet with tribal leaders later this month, a Corps spokesperson says. No mention was made of talks with SSA Marine, however.

“We understand the importance of fishing to the Lummi people,” SSA Vice President Bob Watters said in an emailed comment to Crosscut.  “Our approach will be to avoid, minimize, and mitigate any potential impacts to the fishers.  We are prepared to work cooperatively with the Lummis and other tribes to address some of the current significant challenges and problems in their fishing areas in order to off-set our impacts.”

Tribal leaders in the region have been buoyed recently by the latest in a series of cases that began with the “Boldt decisions” of the 1970s, which recognized treaty rights to fish in usual and accustomed places in the region. In March, federal District Judge Ricardo S. Martinez cited Boldt when he ruled that the state must “maintain, repair or replace culverts which block passage of anadromous fish.”

Martinez’ ruling has been appealed by Attorney General Bob Ferguson, but some culvert replacement is already underway. Martinez ordered state culverts to be fixed by 2030; cost is estimated at nearly $3 billion.

Northwest tribes got little from the 1855 treaties negotiated by Territorial Gov. Isaac Stevens, described recently by historian Lissa K. Waddewitz as “heavy-handed and questionable . . . (which) ultimately forced Indians to relinquish title to more than 65 million acres of land and created reservations to which they were expected to retreat.” But tribes did keep their right to fish in "usual and accustomed places.”

Those ancient treaties are back on the table, after Boldt and now Martinez emphasized the language in their rulings. “The Corps understands the Lummi Nation opposes the proposed bulk commodity terminal in many regards,” Corps spokesperson Patricia Graesser said in a recent email. “Most significant to the Corps' regulatory decision-making authority and process are the Lummi Nation's concerns about impacts to Usual and Accustomed fishing rights reserved by treaty.”

While the Corps (and perhaps SSA) talks with tribal leaders, James and his team ramp up pressure on the cultural front, making their case in an insert in Whatcom Watch, a monthly publication in Bellingham.

Although the treaty language about fishing grounds is perhaps the Lummis’ strongest case — it is obvious that any project the size and nature of Gateway Pacific will impact fishing and marine life in the area — tribal concerns over cultural damage on the GPT site are also significant. There is no question that Salish tribes, including the Lummi, habituated Cherry Point, which the Lummis call "Xwe' chi' eXen," long before the arrival of whites; tribes consider it sacred ground.

Cherry Point and environs contain dozens of archeological sites and some have been extensively studied. Bitter memories remain of Lummi ancestors dug up during a sewer project at nearby Semiahmoo Spit, despite the presence of an archeologist at the site. Disturbance of cultural sites has long angered tribal leaders.

Of current concern is an archeological site recognized as 45WH1 by the Washington Department of Archaeology and Historic Preservation (DAHP). Site 45WH1 lies near the water and has been studied by archeologists for half a century; it contains middens, animal remains and tools for fishing and hunting (no human remains have been found). The site is directly in the path of major GPT structures, and when an SSA contractor used heavy equipment to clear and drill on 45WH1 in July 2011, Lummi opinion began to shift against the terminal.

The Lummi governing council originally took a neutral position on GPT and in March 2011 named a study team to spend $400,000 from SSA Marine for tribal research and education. Such an arrangement is normal in these situations, tribal members were told. Eighteen months later, after a series of carefully balanced monthly reports to the community, Lummi Nation leaders convened the gathering at Cherry Point where they declared tribal opposition to GPT. 

Project developers soldier on in the wake of Lummi developments. Watters insists SSA can set matters right: "Working with the Lummi cultural leaders, we see opportunities to protect the historic village site, to engage in a program of natural land restoration which can provide opportunities for natural cultural use, vegetation, cultural teaching areas, and sources of food and medicine gathering.”

Ultimately, the Corps of Engineers must rule on Lummi cultural and fishing objections and be prepared for a federal judge regardless of which side prevails.

With cultural heritage at Xwe' chi' eXen in one hand and “Usual and Accustomed” in the other, the Lummi obviously have weapons their ancestors did not possess when dealing with Gov. Stevens in 1855. But Stevens didn’t have the backing of the likes of Peabody Coal, Goldman-Sachs, SSA Marine and the BNSF Railway.

Washington was yet to become a state in 1855 but the language of Stevens’ treaties, so devastating to Native Americans at the time, remains 158 years later. It could determine the fate of what would be the largest coal port in the United States.

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