A football field is defined by its goalposts. They are not supposed to move. In the contest between the Lummi Nation and Whatcom County, the goalposts have been up for a long, long time. But one of them keeps moving.
On one end of the field there's Bellingham, Whatcom County's seat of government and principal center of services. Before European settlers moved in, the noisy waters of "Whatcoom" were a seasonal fishing camp and an important landmark for crossroads connecting various communities and regional destinations. This goal is fixed and anyone can rely on getting to town or back home.
At the other end is Gooseberry Point and Hales Pass. A ferry has run from Gooseberry Point to Lummi Island for a century, but people have ferried between Lummi Island and the mainland at this point for millennia. It's the safest place to cross. This goal keeps moving, causing Lummi Islanders to wonder if they will be able to get to work and back home, whether their children will be able to get to school, whether emergency services will be available and if island businesses will survive.
Back in the day, the trails were hard traveling. Folks were eager for improved infrastructure. In 1919, Whatcom County applied to the Department of the Interior for a right-of-way for a road to Lummi Island. Early the next year, Commissioner Ellis of the Tulalip Indian Agency forwarded his recommendation for approval to the Department of the Interior. His report states the road is "necessary to give an outlet to the people of Beach, Washington, on Lummi Island," that it would be connected "by means of ferries across Hales Pass," that it "is badly needed and will be of great benefit to the Indians," and "will enhance the value of all allotments that it touches," that it will "provide an outlet for the Indians" and "be a convenience to the Government in the administration of the reservation."
A month later, the department transmitted the application to the Secretary of the Interior with the advice that "the County Commissioners have complied fully with the regulations" and recommended departmental action "not be delayed." Soon after, the Department of the Interior sent Notice of Approval to Whatcom County Commissioners for a right-of-way for "the proposed road across Lummi Reservation to Hales Pass."
That was then, but this is now. Things change, even when they shouldn't.
The road to Lummi Island was described only to the shores of Hales Pass because that was all that was necessary. The principle of Navigational Servitude reserves federal authority over navigable waters to the high water mark. One of Congress' earliest acts was to prohibit any obstruction of navigable capacity.
However, courts later ruled that the reservation boundary extends to the low water mark. The Lummis claim this ruling subverts the road's earlier approval and supercedes federal authority over navigable capacity - that the goalpost has moved a few yards beyond the legal description of the road to Lummi Island - rendering it useless.
Since then, they have pushed and pushed to move it ever farther away. In the 1960s the County entered into a lease with the Lummi for the tidelands. They didn't concede that their rights weren't already sufficient, but entered into the lease as an expedient to end otherwise interminable negotiations. In the eighties the Tribe, again dissatisfied, brought a civil action in federal court that resulted in another lease. This agreement provided that the County would transfer substantial lands to the Tribe, and that renewal would be based on an appraised value of the contested land. The terms were stipulated by a federal consent decree.
Earlier this year, the Tribe got busy moving the goalpost again. Instead of renewing under the federally stipulated terms, they unilaterally declared the lease invalid. Under the terms of the lease, payments for the ferry would have been about $5,500 per month. They charge a business with a similar sized pier next to the ferry only $150 per month. Instead of sticking to their agreement, they threatened to blockade the ferry and forced the County into an interim agreement at $16,667 per month. Now they have delivered another ultimatum: Pay $310,000 per year plus an annual cost of living adjustment and a one time charge of $4,000,000 for a 35 year lease. Lumped together, escalated at 3% annually and amortized, this amounts to about $57,000 per month - 380 times what the business next door pays. Otherwise, they assert, ferry service to the island must end by October 15th.
Fooey!
For one, it's not clear the Tribe actually owns the tidelands under federal navigable waters. Other court cases have ruled that the federal government retains ownership and authority, that tribes have only certain rights, such as fishing and harvesting shellfish. Second, it isn't logical that redefining reservation boundaries should reverse the road's prior approval. There is no point to a federally approved right-of-way that can't achieve its destination. If the changes created a gap in the right-of-way, then federal administrators should have amended it - or vacated it. The right-of-way has never been unapproved and the Lummi have no authority to negate federal permissions. Next, a ferry has navigated this route, serving the public, for a hundred years. The Lummi have no authority to obstruct the navigable capacity of federal waters. Finally, demanding payment under color of sovereign authority to avert a blockade is, by international definition, an act of war. That seems like a bad strategy for the Lummi. We built our first federal navy and fought a war to oppose just such belligerence.
In fact, only one thing is clear: Leasing from the Lummi is not a viable option. The Point Elliot Treaty allows roads to be built on the reservation for the public's convenience. It provides that anyone affected be justly compensated. Charging 380 times the going rate is not just compensation. Whatever title the Tribe holds in the right-of-way's missing link should be purchased, once and for all, and the right-of-way made whole and unencumbered. This should not be Whatcom County's responsibility. The federal government should do it to compensate for the administrative oversight that originally created the problem. Besides, Whatcom County already bought the contested parcel twice, once from tribal members and once from the State.
In fairness to the Lummi, no one predicted the consequences of the ferry's right-of-way. Today, Haxton Way is the most dangerous road in Whatcom County. The ferry queue periodically clogs Gooseberry Point. During the ferry's annnual dry dock, parking creates a mile of blight, literally obstructing any rational land use. The Tribe has development goals at Gooseberry Point that are adversely affected, including a pressing need for safe harbor for their fishing fleet. These are mostly problems of bad management and the County must share some blame for failing to address them. Most of these issues could be solved in one fell swoop. Fares could be adjusted to charge private vehicles a premium. Inexpensive fares could encourage remote parking and a shuttle bringing foot passengers to the ferry. Voila! Less traffic on Haxton, shorter ferry queues, no parking blight, plus parking and security revenues, and shuttle jobs for the Tribe. That's just one possible approach.
But these options won't be considered while the Tribe is holding the County over a barrel and demanding all negotiations be secret. Done in secret, we are left to wonder if solving the problems is really as much of a priority as simply getting the money.
It is time for the County to quit playing football with the Lummi Nation. It's time for hardball. Whatever beefs the Tribe has with the County, it's the lives of islanders that are getting kicked around. That's unneighborly, unkind, unnecessary and unconscionable.
The County's overly generous counter offer of $200,000 per year has been rejected by the Tribe. Good. Take it off the table, officially. The County should adversely possess the contested right-of-way and operate the ferry under it's prior approval until federal authorities arrive to sort this thing out. That's federal policy. It is against federal policy to leave local jurisdicions to settle historic disputes with tribes. Everyone knows it takes too long, costs too much, deteriorates social relations and destabilizes planning and invesment. A federally negotiated settlement is the only avenue for an outcome that is fair to all.
And it won't take place in secret!
