Who's on First?

 

There have been no reports of progress in the secret talks between Whatcom County and the Lummi Nation for the Lummi Island Ferry. Absent an agreement, Lummi officials maintain service to the island will end on Valentines Day. County officials agree, saying the prospect of operating under the aegis of "willful trespass" is an unacceptable option.

 

Why can't Lummi and County officials agree on terms for the operation of the Lummi Island Ferry? As earlier discussed, Lummi leaders recently declared the County's long-standing ferry contract invalid due to a missing signature of approval from the Bureau of Indian Affairs (BIA). According to the BIA, neither the County nor the Nation ever bothered to submit the contract for approval.

 

The Point Elliot Treaty specifically provides for roads through Indian land, and 25 U.S.C. Sec. 357 provides authority to condemn land allotted in severalty to Indians, but condemnation of tribal land requires consent of the Secretary of the Interior and tribal officials under 25 U.S.C. Sec. 324. The County therefore lacks authority to condemn tribal land for rights-of-way and is consequently hostage to potentially arbitrary demands of the Nation.

 

Nevertheless, 25 U.S.C. Sec. 323 provides that the Secretary of the Interior "is empowered to grant rights-of-way for all purposes...over and across any lands now or hereafter held in trust by the United States for individual Indians or Indian tribes..." And 25 U.S.C. Sec. 341 reserves for Congress the power to "...grant the right of way through any lands granted to an Indian, or a tribe of Indians..." The President may also have the authority to grant rights-of-way, possibly subject to the approval of Congress.

 

The question of who might intervene on the County's behalf becomes lost in federal bureaucracy somewhere between the Secretary of the Interior, Congress and the President. That's all a long way from Whatcom County, but it is clear that without some outside authority the County lacks the ability to get to first base.

 

Nothing New Under the Sun

 

25 U.S.C. Sec. 1773, the Washington Indians Land Claims Settlement, states that, "It is the policy of the United States to...support the resolution of disputes over historical claims through settlements mutually agreed to by Indian and non-Indian parties," including, "jurisdiction over...navigation, and authority and control in the areas of land use." 

 

Congress found and declared that these issues "...have resulted in difficult community relations and negative economic impacts affecting both the Tribe and non-Indian parties."

 

Congress further recognized that relying upon "...a process of litigation would take many years and entail great expense to all parties; continue economically and socially damaging controversies; prolong uncertainty as to the access, ownership, and jurisdictional status of issues in question; and seriously impair long-term economic planning and development for all parties."

 

Does that sound familiar? In this instance, Congress concluded that, "...it is appropriate that the United States participate in the funding and implementation of the Settlement Agreement." Should we at least ask for federal assistance?

 

Perhaps we are asking. Citizens, whether from the County or the Nation have no way of knowing. Secret negotiations make information scarce, but Lummi proposals are reported to range between $10 & $15 million for a five year extension at the current location, after which the County faces costs of up to $137 million for an alternate location.

 

The ferry made a trial run to Fairhaven last week, but the feasibility of that landing remains uncertain. The trip took an hour in calm seas, but bad weather could prevent regularly scheduled runs. Also, the Alaskan Ferry would block access up to two days a week. Islanders worry that emergency response times will be unacceptably long and wonder how long it will take children to get to which schools, and how often they will be able to go.

 

Block Lummi Aid?

 

Meanwhile, with time running out, the issue heating up on the blogosphere and divisions growing sharper, U.S. Commerce Secretary Gary Locke announced on December 28 a $1.6 million Economic Development grant for the Lummi Nation to help build the Lummi Gateway Center at I-5 and Slater Road. The Nation expects the project to create 200 jobs and generate $4 million in private investment.

 

Lummi Islanders might rightly wonder what's available for them. 23 USC Sec. 129 allows for federal participation in "...an approach to a ferry, whether toll or free, the route of which is a public road..." This adds the Secretary of Transportation to the list of potential federal assistance. However current budget constraints will likely limit the available help.

 

In any case, the County's ability to negotiate is severely hampered by the political subdivision of jurisdiction and interests. If the entire constellation of services - like county roads, schools, fire protection, emergency services, utilities and federal aid - were all on the table, negotiations might be more balanced. Without a comprehensive approach, the County, already lacking jurisdiction, also lacks leverage.

 

Ironically, the Lummi Nation's position on the ferry places some of their best county relations at risk. Lummi Islanders are regular patrons at Lummi businesses. Their kids go to the same schools. Sentiments are likely to deteriorate with the feds dishing out aid while the Nation attempts to extract millions from the County ferry. The Nation's more conservative neighbors, having just won a new majority on the County Council, could easily start making things worse by demanding a reexamination of the terms of many other services.

 

The Road to Lummi Island

 

Gooseberry Point has been the best approach to Lummi Island for thousands of years. Is it realistic for the Lummi Nation to force the ferry to a less suitable location or impose excessive demands? The ferry is an essential public facility and deserves consideration as such. If negotiations today cannot proceed rationally, what can be expected next time? Present circumstances already demonstrate that a permanent solution is needed. Unfortunately, the County has no means to achieve one.

 

The federal policy is clear. Disputes such as these require "settlements mutually agreed to by Indian and non-Indian parties". That's going to require federal participation with everyone's cards on the table. It should mean an end to secret talks. All affected citizens ought to have the opportunity for open discussion of the issues and options, and to witness how elected officials perform. That's a basic tenet of good government. Somebody ought to give a damn about that.

 

Until the Secretary of the Interior, Congress or the President take notice and step up to the plate, it looks like the road to Lummi Island can only run downhill and  Valentine's Day could be a big bust.