How Lummi Nation’s Treaty Stand Beat Big Coal

Editor’s note: Sightline commissioned this guest article from Bellingham-based writer Ralph Schwartz. We are honored to share more of the story of how Lummi Nation defeated one of the largest coal export terminals in North America, including exclusive video footage of Monday’s events, below.

LUMMI RESERVATION—The chairman of Lummi Nation couldn’t sit still.

Chairman Tim Ballew II kept checking his phone to make sure he didn’t miss the call. A couple minutes before 9 a.m. on Monday, May 9, when the call was expected, he walked out of his office, phone in hand.

Ballew rallied his staff: “All hands on deck!” People emerged from offices to head down to a “war room,” where key people were on a conference call, or to Ballew’s office, where he waited to hear from Col. John Buck, district commander of the U.S. Army Corps of Engineers in Seattle.

The Lummis had waited 16 months for this phone call, ever since they had asked the Corps to deny an application for a coal terminal at Cherry Point, 13 miles northwest of downtown Bellingham.

Chairman Ballew told the Corps in a January 5, 2015 letter that the project applicant, Seattle-based SSA Marine, could not possibly design the port in a way that could correct adverse impacts to Lummi fishing grounds. The Corps was obligated to reject the permit, Ballew said, through its duty to protect fishing rights guaranteed by an 1855 treaty between Salish Sea tribes and the U.S. government.

Past court cases on treaty fishing rights set a “de minimis” standard: the Corps rejected projects if they affected tribal fishing in any amount that could be considered more than negligible.

Ballew’s desk phone rang at 9:25 a.m. It was Col. Buck. He got right to the point.

“We’ve determined there is a greater than de minimis impact to the Lummi Nation’s usual and accustomed fishing rights based on the Treaty of Point Elliott,” Buck said. “… I’ve gone ahead and issued a decision on the permit, which was a denial without prejudice.”

Ballew thanked Buck for honoring treaty fishing rights.

“Just as importantly, I want to acknowledge that the ancient ones that are still up there at the village site will rest protected,” Ballew told Buck over the phone.

Honoring the ancient ones

Members of Lummi Nation collectively exhaled a sigh of relief on Monday and allowed themselves to cheer and celebrate the decision.

“This is a really good day,” said an emotional Cheryl Sanders, who met in special session with other tribal council members later on Monday morning, to share the news with the community. “These are happy tears. These aren’t sad tears.”

Sanders said she doesn’t fish but comes from a fishing family. Lummi Nation is said to have the largest tribal fishing fleet in the lower 48 United States.

“They taught us never to forget where we come from,” Sanders said. “Treaty rights aren’t for sale. Being on the water is medicine.”

Members of Lummi Nation and the broader community cheer Monday, May 9, 2016, in Lummi council chambers as they hear that the coal terminal has been rejected. Photo by Ralph Schwartz, all rights reserved.

Non-tribal environmentalists warned of the dangers of dust blowing from passing trains and from coal piles at the terminal, which would have shipped up to 48 million metric tons of coal annually. Environmentalists described the health impacts of diesel exhaust, and the potential threats to public safety that would result from additional train traffic at crossings.

“Yes, the coal is damaging. Yes, it will be devastating to the resources, to the health of our tribal members with the wind that blows [off the coal piles] being adjacent to our reservation,” said Jeremiah “Jay” Julius, who has been at the forefront of the fight against the coal terminal since he joined the tribal council 4½ years ago.

Health and environmental impacts aren’t the tribe’s only concerns.

“It’s unique because of the significance of the location itself,” Julius added. Project proponent SSA Marine documented in 2011 what one tribal member called “one of our last, most intact” ancient village sites.

Tribal council member Shasta Cano-Martin also said the coal project was harmful on several fronts. “I think my main motivation was my children,” Cano-Martin said. “How important it is that they know the history, the stories, but also still have a right to fish and be in a healthy environment. The project really threatens every aspect of that, with any sort of development on the sacred site, but also the impact to fishing.”

The treaty at the crux

All that said, there’s more to this fight than being able to cast a net in the water or preserve the resting places of the ancient ones. Those rights are important but are tied to something more fundamental. If descendants of European settlers are to understand why the fight against coal matters so much, they must dig even deeper—back at least to the time the treaty was negotiated and signed.

“Why was it so important to make this transaction, this contract, this business deal with the United States government, giving up every single square inch of our land except for that little reservation that we now call home?” Julius said. “We sacrificed all that we’ve known for thousands of years, and we secured fishing rights amongst other things in that treaty, and it wasn’t that much.”

Not much, but tribal leaders are happy to have what the treaty secures. Julius added that the treaty is important for white people, too. He called the treaty “a significant real estate transaction.”

“We have a lot of (non-tribal) people who are uneducated on the treaty, who say that it is old and should go away,” Julius said. “If that treaty goes away, every square inch of this land goes back to the tribes.”

“We celebrated and thrived and conducted all of our ceremonies on the shores of the San Juan Islands all the way through up to the Cascade Mountains,” Chairman Ballew said. “When the treaty was negotiated, I think it’s unfortunate that we had to cede a lot of our homelands, a lot of the territories that provided us with life.”

“At the time, I want to think that our leadership had the foresight to understand that if we retained the ability to fish, a major part of our Schelangen—our way of life—would continue on,” Ballew continued. “The ability to fish and follow the fish would make sure that there’s always a tomorrow. And I think that’s what’s playing out right now [with the coal terminal].”

Past Cherry Point proposals

Projects have been proposed before for the same undeveloped acreage on Cherry Point between BP’s refinery and Alcoa Intalco Works. Since 1976, the land was considered twice as a site where offshore oil-drilling rigs would be built. Both projects were rejected. Two more proposals, Cherry Point Industrial Park and Gateway Pacific Terminal, arose in the early 1990s. The industrial park idea was abandoned, and Gateway Pacific Terminal languished until coal prices peaked in 2011.

Prospects for the coal terminal looked good initially, with high coal prices and support coming in from the mayors of all the small cities in Whatcom County and even Bellingham Mayor Dan Pike initially. (He later changed his mind.)

Then the tide turned on Gateway Pacific. Coal prices collapsed. The project lost investors. Non-tribal environmental groups ratcheted up the pressure, and then Lummi Nation filed its request with the Corps at the start of 2015.

Larry Kinley, who served as tribal chairman for 12 years in the 1970s and 1980s, said the tribe was the only group in a position to deliver the fatal blow to the coal project.

“The permitting system, the U.S. system, because of how the politics works, it’s really more designed to get a project through. It’s not really designed to protect and make sure the people got their say—even the local people,” Kinley said.

“As usual, it came down to us to stand up and say ‘no,’” Kinley said.

Lummi School students play traditional drums during a lunch the tribe hosted on Monday, May 9, at the Lummi Nation Administration Center to celebrate the U.S. Army Corps of Engineers’ decision to reject a permit for a coal terminal at Cherry Point. Photo by Ralph Schwartz, all rights reserved.

A defiant, lasting stand

Tribal leaders all said the same thing about the Corps’ decision: it was a single victory in a continuing war. Would-be developers are always getting better at trying overcome opposition from Lummi Nation, tribal members said.

Julius acknowledged that the project applicant tried to pit other tribes against Lummi.

“I don’t really want to go too much into this and buy into their division and attempt to divide, but they definitely took that approach. It’s an old tactic,” Julius said.

Lummi stood its ground despite these pressures. The council especially was unified in opposition to the coal terminal.

“It’s that kind of spine that’s required to be on the council,” said, Darrell Hillaire, who served 15 years on the council, including time as chairman. “People look at you long and hard, [to see] if you have that kind of backbone to stick up for our rights, to decide whether they’re going to elect you or not.”

Whether Gateway Pacific Terminal is resurrected in an appeal, or a different proposal takes its place, Lummi Nation won’t let its guard down.

“You know it’s going to come around again,” said Lummi council member Steven Toby at the special council meeting. “But Lummi is strong. Lummi is always out front. We will continue to fight.”

Ralph Schwartz worked for 13 years at newspapers in north-central and northwest Washington. He covered the Gateway Pacific Terminal proposal for The Bellingham Herald, which he left in November 2015. He now works as an environmental consultant and freelance writer, and lives in Bellingham.