Lummi Island ferry caught in a snag over tribal tideland rights

Uprising at Gooseberry Point: the trouble with running good ferry service to a nice island.
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The 'Whatcom Chief' arrives at Gooseberry Point.

Uprising at Gooseberry Point: the trouble with running good ferry service to a nice island.

If you're uncertain about the geography of the upper left-hand corner of the state, understand that there are two Lummis.

Lummi Nation, centered on a 20-square-mile reservation west of Bellingham, is where the community's ancestors were forcibly placed by the Treaty of Point Elliott in 1855. The Lummis describe themselves as "fishers, hunters, gatherers of nature's abundance." They also own Silver Reef Casino. Unemployment persists at around 16 percent.

Lummi Island, one of the smaller of the San Juans (just over nine square miles), is peopled almost entirely by white settlers who started arriving, by canoe, in 1871. It's a working person's island and a retired person's island, rich in scenic views and artists, writers, and tiny farms. There's one school, a few cafes, and some B&Bs.

The two Lummis are a mile apart, looking at each other across Hale Passage, the saltwater that joins the Strait of Georgia to Bellingham Bay. An ocean separates the island from the peninsula — culturally, financially, and politically — and a growing dispute over ferry service has widened the gap.

To be precise, the fuss is between the Lummi Nation and Whatcom County, with the Lummi Islanders worrying from the far end. The county operates the Whatcom Chief, a 48-year-old, 19-car ferry connecting the two Lummis every 20 minutes or so when it can. Now and then it can't, because 48 is well past middle age in ferry years.

Lummi Nation, being sovereign, controls the tidelands over which the ferry comes and goes at Gooseberry Point, the end of the peninsula nearest Lummi Island. You can't get to or from Gooseberry Point without crossing Lummi Nation tidelands.

Whatcom County pays the Lummi Nation $16,667 a month ($200,000 a year) for the right to operate the Lummi Island ferry and provide some parking space for its riders. Those rental terms are written in an interim agreement that took effect last February, when a 25-year contract expired. That expired document contains language that allows it to be renewed for another 25 years without a lot of fuss. If the two sides can't come to terms, the contract says, a federal mediator will arbitrate the differences.

Wait. Hold on a minute. The contract between the tribe and county was supposed to be witnessed, back in 1985, by the Bureau of Indian Affairs, the federal agency that has the last word concerning long-range Indian agreements. BIG problem: County officers signed it, Lummi Nation officers signed it, but for reasons no one seems to understand, the BIA never did. Although the Lummi lived up to its terms for 25 years, their leaders now say it never was a valid contract. Not without a BIA signature on the paper.

That would mean the renewal language, the section that covers disputes like the one that now boils, has no effect. It leaves the tribe in a position to extract some reparations for the outrages of the Treaty of Point Elliott and some of the insults of the past century and a half. Meet their terms, the Lummis tell the county, or you must stop the ferry by Oct. 15.

On July 30, Lummi Nation Business Council Chair Henry Cagey (pronounced with a hard "g") sent what he called the tribe's "last and final offer" to Whatcom County Council Chair Sam Crawford. (See Cagey's letter and the County's responses here.)

The Lummi Nation's price for continuing to run the ferry:

  • A lump-sum payment of $4 million to help the Lummi Nation build a new marina, payable whenever the tribe gets its federal permits to start building.
  • A basic rent of $200,000 per year for 35 years, with increases tied to the national cost-of-living index, expected to rise as much as 2.5 percent per year.
  • An additional rent payment of $110,000 per year or its equivalent in physical improvements to the docking area and nearby roads.

Crawford, who figures the cost at more than $23 million over the life of the lease, says any counter-offer by the county has to be based on fair market value. He says the tribe is demanding about 58 times the fair market value of the ferry dock, tidelands and other essential acres, as assessed by a professional appraiser chosen by the Lummis. In an Aug. 12 letter to Cagey, Crawford affirmed the county's counter-offer: a fixed payment of $200,000 per year for 25 years.

Neither Cagey nor his vice-chair, Gordon Adams, returned repeated calls. Cagey did talk to Cascadia Weekly Editor Tim Johnson. "We're done negotiating," Cagey told Johnson. "Whatcom County has had more than three years to negotiate this lease, and they have wasted that time. We've waited for them and we are done waiting. Our offer was final."

In his letter to Crawford, Cagey said his people "would like to be good neighbors to the residents on Lummi Island. Yet, we will not expend any additional staff time working on this effort if we are dealing with an unwilling County Council."

The door for bargaining may be barely-cracked-open, however. Adams, the Lummi Business Council's vice-chair, told KING-TV that his council is willing to "sit back down at the table." Cold comfort for alarmed islanders, but it was about as good as anyone brought to a public meeting with the County Council and County Executive Pete Kremen on Lummi Island, Aug. 24.

The "Welcome to Lummi Island" sign says 816 people live there. That works out to about 300 adults. It cannot be that every one of them came to Beach Elementary School Tuesday night (Aug. 24), but that's the way it felt. The gym was packed and dozens who couldn't get in stood around the doors and windows, hoping to hear good news. They heard none.

Meeting the Lummi Nation's demands could double the $10 roundtrip fares, the troubled audience was told. Demographics of the islanders, presently an economically diverse bunch, would shift toward the high end. On the other hand, cuts in service would interfere with mainland jobs and reduce the worth of island real estate. The County might establish a special taxing district, limited to Lummi Island, to levy a property tax of 75 cents per $1,000 valuation just for the ferry service. Or, without a settlement, ferry service could end. One by one, scores of islanders voiced their worries and puzzlement and controlled anger. Whatever it takes, they said, keep the boat running.

"There's a woman I know who has breast cancer," resident Mary Ross told the County officials. "She has to go to town every day for radiation. There are days when walking on is not a solution for her. What would she do without a car ferry?"

There's a public safety problem, Fire Chief Duncan McLane warned the gathering. "We had a fire this afternoon, we had to have help from other fire districts on the mainland." A car caught fire and a small cabin burned, McLane reported, but a nearby house was saved with help from the mainland. "Without the ferry it would have caused a great deal more damage."

There's no alternative to negotiation, islander Bob Morse said. "We have a wonderful service. We don't want any reduction, but we may have to pay more." And don't think about suing, Morse urged the county officials. "A lawsuit would be ruinous and it would poison relationships between the tribe and the island forever."

Kremen and County Council members agreed that legal action against the sovereign Nation of Lummi would be expensive and risky. "Our attorneys advise us against going to court," Kremen said. He voiced sympathy with the islanders and worried about changes that would follow huge fare increases or cuts in service.

"We're concerned about the future of the island," Kremen told the crowd. "We want those who live here now to be able to live here in the future."

There's no way fare increases alone would solve the problem. When fares go up, ferry traffic goes down. The County is supposed to recover 55 percent of the ferry's operating revenue from fares, but it seldom does better than 45 percent. That leaves a budget gap about the size of Hale Passage, paid out of a countywide road fund. Citizens who never leave the mainland help pay for the Lummi Island ferry.

If the county's $10 fare is raised by a couple of dollars, commuters will carpool. If it's doubled, everyone will leave a car on the mainland and walk on. The Whatcom Chief churns back and forth 39 times a day, from 5:50 a.m. until midnight, with cars or without. It costs $2.5 million a year at the present rental rate. It will be twice that if the Lummi Nation gets its way.

The ferry service may be more generous than the county can afford. "We've given them a service level that goes beyond needed capacity with 39 runs a day," Crawford told Crosscut. "We built in so much flexibility, they can respond to any fare increase by adjusting their schedules. At any rate, we can't cover all the costs the tribe would impose, just by fare increases. I don't think there's enough money on the island to do that."

If the Lummi Nation's bargaining position reflects a bit of old score settling, it also includes 21st-century plans for developing Gooseberry Point, where the island cars arrive and leave. The Lummi Business Council wants to build a new marina there, estimated to cost at least $21 million. Plans call for artificial islands to shelter the marina and create new habitat for birds and fish. Damaged tidelands, scoured for decades by the thrust of ferry engines, would be restored. Announcing the marina plan last October, Cagey said he hoped for federal stimulus money, perhaps by the current summer, to begin work on the project. But the money has not materialized.

The best hope for solving the dilemma appears to lie with the Bureau of Indian Affairs, whose failure to sign a document 25 years ago set up the current standoff. The BIA owns the Gooseberry Point tidelands in trust for the tribe, and it can take a hand in this sort of inter-government dispute. Kremen wrote to the BIA Aug. 18, asking for a mediator. But it seems to be a one-sided request; the Lummi Business Council has said nothing publicly about mediation.

If the rental dispute suddenly disappeared, Whatcom County would still face a serious problem with its fleet. The Whatcom Chief's hull is beginning to look like a poor farmer's overalls. "That steel hull looks invincible, but it wears thin," Crawford said. "We bring it in for X-rays every year and put patches on the thin spots. We need another $300,000 to meet operating and maintenance costs, not considering what we have to do to meet the demands of the Lummi Nation." Not considering the cost of a new ferry, either.

Only Whatcom, Skagit, Pierce, and Wahkiakum counties operate their own ferries, and it's a little late to wonder if it's a good idea. Whatcom County's been taking passengers across Hale Passage since the 1920s. The executive's legal counsel, Dan Gibson, says the county may be legally bound to keep it going, but the law doesn't seem to specify any level of service.

The county ferry has nothing to do with the Washington State Ferries, a point some ferry riders seem not to understand. Nice thought, Crawford told the islanders the other night. "I'd like to give it to the state. I wish we could."


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About the Authors & Contributors

Bob Simmons

Bob Simmons is a longtime KING-TV reporter who has been writing news for print and television for 65 years.