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Whatcom Watch Online
What Would Corporations Do? Native American Rights and the Gateway Pacific Terminal


January 2014

Cover Story

What Would Corporations Do? Native American Rights and the Gateway Pacific Terminal

by Sandra Robson

Sandra Robson moved to Whatcom County from California about four years ago. She is passionate about protecting and preserving the environment we all enjoy and need. She is actively engaged in educating herself and others about all things Gateway Pacific Terminal.

In Whatcom County, there are some people who harbor resentment about treaty rights of Indian Tribes and Indian Nations, and their resentment sometimes is being shouted publicly for all to see and hear. Case in point is the opening sentence in a letter to the editor entitled, “Wants Indians to Choose One Nation,” written by Lynden berry farmer, Darryl Ehlers, published on October 12, 2012 in The Bellingham Herald.1 That letter was published only a couple of weeks following the September 21, 2012 gathering of members of the Lummi Nation at Cherry Point for a ceremony showing their ardent opposition to the proposed Gateway Pacific Terminal (GPT) at Cherry Point. Ehler’s opening paragraph of that letter was: “I believe now is the time to pick on North American Indians. The present Indians are many years away from the world of their ancestors. For the present Indians to lay vast claims for water, land and coastal properties is not fair, nor equal. Treaties or not, they are far removed from generations they came from.”

In contrast, support for the Lummi Nation and its unequivocal opposition to the proposed GPT at Cherry Point, has been pouring in from residents of Whatcom County since the news a couple years ago that Pacific International Terminals (PIT), a subsidiary of SSA Marine/Goldman Sachs (Goldman Sachs owns 49 percent of SSA Marine) proposed to build and operate the 48 million ton coal terminal, and BNSF Railroad proposed the Custer Spur project needed to service the terminal in transporting the coal along the railways from the Powder River Basin.

Also, standing steadfastly with the Lummi Nation in opposition to the GPT, are the 57 Affiliated Tribes of Northwest Indians (ATNI), which adopted a resolution on May 16, 2013, opposing the proposals for the transportation and export of fossil fuels in the Pacific Northwest. The resolution demonstrates and summons support for safeguarding the Lummi Nation’s treaty-protected fishing rights and sacred areas at Cherry Point that would be impacted by GPT if it were permitted and built. 2

Now that the EIS (environmental impact statement) scoping phase for GPT is completed, and the EIS is underway in terms of the studies required, this is when PIT and BNSF need to remove obstacles from their path to acquiring the needed permits. Arguably, most environmental review experts would say the two most difficult obstacles to overcome are: the federal Endangered Species Act (ESA) which protects endangered species like the orca killer whales and Chinook salmon, (both of which are known to be located in the Puget Sound in and around the Cherry Point area), and the Indian Tribes and Indian Nations which stand to be adversely impacted by the proposed project.

Time to Engage in a Game of “Let’s Pretend”

Let’s pretend we are big corporations like SSA/PIT and BNSF, who desperately want this coal terminal to be permitted and built. What would we do? We could depend on legal petitions from legal organizations like the Pacific Legal Foundation (PLF). According to Sourcewatch.org, published by the Center for Media and Democracy,3 a watchdog organization that investigates and exposes the undue influence of corporations and front groups on public policy, PLF is a key right-wing public interest litigation firm that supports the kinds of capitalism that oppose environmental and health activism and government regulation, and the firm is partially funded by a number of corporations and conservative foundations including a Koch family foundation. PLF takes on particular cases in an attempt to establish legal precedents that corporations can use to lessen or block regulations. Think of PLF as a snowplow trying to clear the way for corporations (their donors) to come into areas where there are environmental protection regulations that icily block their path.

PLF, on behalf of a group of farmers, had petitioned in 2012 for the delisting of Puget Sound killer whales (orcas) from their current protection under the federal ESA. Lucky for the Puget Sound killer whales, NOAA’s National Marine Fisheries Services rejected the arguments in the petition brought forth by PLF, declaring the Puget Sound killer whales are a distinct population segment and therefore should retain their endangered status.4 It is still possible that a lawsuit could come about, if PLF and its client/s decide to continue their quest to de-list killer whales. Killer whales are listed on PIT’s permit application for GPT as a federally protected Endangered Species, (so are the Chinook salmon that killer whales depend on for survival) which stand to potentially be adversely impacted by GPT if it were built.

Next, what could our pretend corporations do about the roadblock that the Lummi Nation presents to the proposed GPT?

1) We could offer to pay the Lummi Nation a large sum of money for their willingness to support the idea of a 48 million ton coal terminal along the Salish Sea, where salmon are that their sovereign nation depends on for survival, and on the land at Cherry Point that is home to their culturally significant sacred burial grounds. However, a wrinkle in that plan would be that on September 21, 2012, members of the Lummi Nation gathered on the beach at Cherry Point and ceremoniously rejected any possible pay-off from SSA/PIT by burning a mock check which showed the words “Not Even Millions Unlimited’ with the words, “Non Negotiable” stamped in deep blood-red color across the check, driving home the point that no amount of money would ever buy their acceptance of the proposed coal terminal [see article in Whatcom Watch, Oct/Nov 2012, page 2].

2) We could go ahead and arrogantly begin to clear the land in the area at Cherry Point as we try to get a head-start, figuring after the damage is done we could just pay the fine and say mea-culpa. That’s what PIT did in 2011, close to a year before their permit application was even submitted. Without ever obtaining the required permits and permission to do so needed from local, state, and federal authorities, PIT destroyed 2.5 acres of wetlands, illegally filled 1.2 acres of wetlands, and bulldozed and drilled in a registered Lummi historical area known to contain sacred burial sites. PIT received the equivalent of getting its knuckles rapped by Whatcom County, getting fined a nominal $4,400 and instructed to repair the damages — as if the damages done could ever be fully repaired. Since that time, in July 2013, PIT settled a lawsuit with RE Sources for Sustainable Communities for $1.65M after RE Sources had filed suit against PIT for violating the federal Clean Water Act.5 SSA/PIT Project Manager for the GPT project, Ari Steinberg, recited the words "I don't recall," a grand total of 40 times throughout the legal questioning and testimony about the violations.6

3) We could try to get the candidates elected into office who will potentially have decision-making responsibilities on the permitting of GPT and the Custer Spur project, trying to ensure those candidates who are most likely to support the proposed GPT and Custer Spur project are elected into office. These elected offices include Whatcom County Council seats, the office of the Governor of WA state, and even the Public Lands Commissioner for WA.

4) We could try to fuel and even organize the already present resentment from some non-Native American community members about treaty rights of Indian Tribes and Indian Nations, trying to capitalize on that ignorance that is inherent in some people. And in those who may not already have a tendency toward resentment, we could try to create that — we could also try to weaken tribal treaty rights and even encourage people and government officials to ignore treaty rights.

A Crucial Race for Governor

Real life happenings related to numbers 3 and 4 on our list follow:

In the November 2012 election race for Washington State Governor, Jay Inslee, our current governor, won, by defeating then Washington State Attorney General (AG), Rob McKenna. When Jay Inslee won that election, it must have dealt a significant blow to the GPT proponents, as Governor Inslee is known for his pro-conservation/pro-environment thinking. Without much time to recover from suffering that defeat, GPT proponents must have then gotten a case of “the vapors,” sending them looking for the nearest fainting couch, when in March 2013, Governor Inslee and Oregon Governor John Kitzhaber sent a letter jointly to the President’s Council on Environmental Quality, calling on the federal government to examine the consequences of global air quality and climate impacts if the Pacific Northwest were to start exporting millions of tons of coal to Asia. Then when Governor Inslee gave his support this past summer for the Washington State Department of Ecology’s decision to use the full extent of its authority demanding the broadest environmental review possible for GPT, that surely delivered a powerful gut-punch to GPT proponents.

Another reason GPT proponents were most likely grieving due to McKenna losing the race for Governor is that former AG McKenna has been no great supporter of the treaty rights of Native Americans. Had McKenna become governor, it could have produced quite a different scenario in terms of the permitting path GPT proponents would have to travel in their quest for their coal export terminal, and whether the proposed terminal would be permitted or not.

An independent research report compiled in 2012 by Chuck Tanner and Leah Henry-Tanner, entitled, Trampling on the Treaties, Rob McKenna and the Politics of Anti-Indianism 7 gives some insight on why that path to GPT permitting could have turned out differently. Tanner and his wife, Leah, are longtime human and civil rights activists who have worked for many years to support the right of indigenous peoples to self-determination. The Tanners’ report points out that “The picture of Rob McKenna that emerges in this report is not one of an active and fanatically driven anti-Indian activist wholly dedicated to ending tribal self-determination.” The report clearly illustrates, however, that “When the Republican leader perceives a state interest at issue, and ambiguities exist in the law, Rob McKenna will actively oppose the treaty rights and sovereignty of Indian tribes to accomplish his goals.”

The authors of the report explain it is important to understand what their report means by the term “anti-Indian.” The authors write,

"Crow Creek Sioux scholar Elizabeth Cook-Lynn describes cultural anti-Indianism in the United States as ‘that which treats Indians and their tribes as though they don’t exist, the sentiment that suggests that Indian nationhood (i.e., tribalism) should be disavowed and devalued.’ Cook-Lynn captures the political core of the modern anti-Indian movement — groups and individuals who ultimately deny the independent nationhood of indigenous peoples and seek to terminate tribal governments and break federal treaties signed with tribes. The modern anti-Indian movement has focused on overturning on reservation tribal jurisdiction and off-reservation treaty-reserved resource rights. These groups’ writings often betray an ultimate goal of ending tribal self-governance and continuing nationhood.”

Perhaps the most familiar group in terms of its continued attempt to end tribal self-governance and continuing nationhood is the Citizens Equal Rights Alliance (CERA). CERA is considered an anti-Indian group. An October 2, 2000 article entitled, “The Last Indian Fighter, Slade Gorton is American Indians’ Public Enemy No. 1,” written by Jeffrey St. Clair and published online by In These Times.com8 states, “Among CERA’s objectives, two stand out: to ‘ensure the right to own private property on or near Indian reservations’ and to ‘ensure the fair administration of natural resources on public lands for the general welfare.’ Thus, it’s not surprising that more than 50 percent of CERA’s member organizations have an interest in mining, timber or oil and gas, and that the organization itself is closely affiliated with the anti-environmental Wise Use movement. These corporations and businesses want a return to the old days, with unfettered access to tribal lands, free from pesky environmental regulations or noisome requirements that they hire tribal workers."

Wouldn’t it be great for the corporations involved in the proposed 48 million-ton coal terminal at Cherry Point if they had “unfettered access to tribal lands, free from pesky environmental regulations?”

A Telling Conference

On April 6, 2013, CERA/CERF (Citizens Equal Rights Foundation), a sister group to CERA, held a conference at the Lakeway Inn in Bellingham. One of the event organizers, former chair and current board member of CERA, Elaine Willman, was a featured guest on the local KGMI radio show, Saturday Morning Live (SML), hosted by Tea Partier Kris Halterman, first appearing on SML on November 3, 2012. She came back to SML to school listeners, giving them a dose of anti-Indianism on March 30, 2013, so that she could promote the April 6, 2013 CERA/CERF conference.

In an article written by author Jay Taber published on May 5, 2013 in Intercontinental Cry Magazine, entitled “White Power on the Salish Sea,” Taber reported that during Willman’s SML November 3, 2012 appearance she declared that, “tribalism is socialism, and has no place in our country;” during her March 30th SML appearance, Willman touted the CERA/CERF conference as one that would teach citizens “how to take on tribal governments.”9 Willman has said, “The tiresome myth that inherent tribal sovereignty is pre-Constitutional needs a little sunshine. This misplaced theory has unfortunately succeeded a bit too often. It’s my belief that anything ‘pre-Constitutional’ in this country was in fact, nullified by the U.S. Constitution.”10

KGMI’s Kris Halterman and fellow KGMI radio show host, Dick Donahue, a local financial planner, who hosts the radio show, Wealth Wake Up, attended the CERA/CERF conference — the earlier KGMI broadcast of Halterman’s KGMI/SML interviews with CERA leaders was piped in rather like a special CERA-brand of elevator music to the attendees as they filtered into the venue.

Human rights activist Chuck Tanner’s article entitled “Take These Tribes Down — The Anti-Indian Movement Comes to Washington State,” published for Institute For Research & Education On Human Rights (IREHR) on April 26, 2013, says “CERA/CERF’s conferences appear aimed at boosting ties with local activists and that it is asserting itself as ‘the’ national anti-Indian umbrella.”

Tanner went on to say, “The conference served up a combination platter of anti-Indian ‘legal-theory’ 101 and pep rally with a side of movement strategy … a movement aimed at ending tribal nationhood.” Tanner reported, “Speakers at the conference espoused a recurring strategic theme: anti-Indian activists should mine federal laws and court cases for anti-tribal language that can be used to seek termination in the courts and ‘educate’ local and state officials. CERA’s ‘legal theory’, in the end, combines anti-tribal ideas drawn from federal Indian law and false claims that tribes have no political sovereignty or treaty rights.”11

CERA members seem to ignore that tribal sovereignty (self-rule) is rooted in the fact that Indian nations pre-existed the United States, and that sovereignty is recognized and protected by the U.S. Constitution, treaties, and legal precedent.

CERA/CERF conference attendees and KGMI radio show hosts Halterman and Donahue, are very vocal GPT supporters and are very involved with Whatcom County conservative politics. As evident on the WA Public Disclosure Commission website records, Halterman and Donahue are listed on the Political Committee Registration forms for the controversial dual and affiliated political PACs, Save Whatcom/Whatcom First. Also listed are Bellingham locals and fellow vocal GPT supporters; SML blog writer and Whatcom Tea Party Board Member Lorraine Newman, Northwest Business Club Board Member Chet Dow, and Commercial Real Estate Broker Steve Moore. Orphalee Smith is listed as treasurer for both PACs. Halterman was often quoted in the media as the seeming spokesperson for the Save Whatcom/Whatcom First PACs.

These affiliated political PACs were formed in August and September 2013 for the November 2013 elections. They were backed with $149,000 from coal companies, BNSF, and SSA/PIT, and were focused on attempting to get the four conservative county council candidates elected.

They centered most of their messaging on the Whatcom County Democrats’ Resolution to Honor the Lummi Nation’s Sacred Lands and Waters at Cherry Point, which the group had passed in July 2013. This resolution was intended to show the Whatcom Democrats’ support for the Lummi Nation in protecting its sacred lands and waters, but Save Whatcom/Whatcom First wielded it as the lynchpin weapon in its advertising seemingly to strike fear in people.

Save Whatcom/Whatcom First stated on its election mailers that the four progressive Whatcom County Council candidates were “backed by groups that want to de-industrialize Cherry Point and make it harder for local farms to survive.” Why is a harmless honorary resolution supporting the Lummi Nation, a respected member of our community, viewed as such a negative by the people behind the Save Whatcom/Whatcom First PACs, and some of the supporters of these PACs’ candidates?

Whatcom County Notables Attend

Former Whatcom County Council member Marlene Dawson (1994–2001) spoke, continuing her call for working to diminish the Lummi Reservation on behalf of non-Indian tideland lease holders. Dawson said, “All of Washington State reservation lands, or treaty lands, were subject to appropriation for public use. The majority of reservations in this state, while originally held in trust, were intended to be transitioned out of trust. They were not intended to be permanent reservations.”12

Dawson was also featured on Halterman’s SML radio show on August 31, 2013 to talk about her presentation she calls, “The Grand Deception,” trying to educate listeners on her special views about treaty rights and trying to inspire those like-minded listeners to become involved. She also presented “The Grand Deception” on August 14, 2013 at the Bellingham Business Club.13

Presenting at the conference was Bellingham resident Skip Richards, a property rights activist and leader in the 1990s local Wise Use group, Coalition for Land Use Education. He presently is the owner of a local consulting business called Catalyst Consulting. Richards, professing he knew nothing about the topics discussed at the conference that day said he takes no position on them, and agreed with the groups’ concept that tribal sovereignty is “fiction.” When referring to his water negotiation experiences, he said, “We were told we if we were going to sit down in this process, we had to accept the state’s, whatever you call it, fiction, its position, on tribal rights, sovereignty and all that. That was a given.”14 Isn’t calling the concept of tribal rights and tribal sovereignty “fiction” indeed taking a position?

Everson resident Tom Williams, a CERA board member, was the lead organizer of the conference, and is a vocal supporter of GPT. He said, “The federal government, through federal Indian policy, and Washington State, through the Centennial Accord … have created rights and governance authority … for themselves that does not exist. And they have created rights and governance authority for the federal government and for tribal governments that does not exist.”15

Williams was also a featured guest on KGMI’s Wealth Wake Up show hosted by Dick Donahue on March 30, 2013. Williams advanced the erroneous concept that Native Americans have citizenship privileges without paying taxes. By promoting the CERA conference, KGMI, through radio shows like Halterman’s and Donahue’s, offers a platform for those wanting to air their resentment toward tribal sovereignty and treaty rights, as the guests encourage listeners to join their cause.

In attendance was Ferndale resident and vocal GPT supporter, Greg Brown. Brown “received some interest in opposing a proposed fee-to-trust transfer by the Lummi Nation of a parcel [land] near Slater Road and Interstate 5 in Whatcom County.”16

Toward the conclusion of the conference the leaders and attendees discussed potential targets and goals for local activists. CERA legal counsel Lana Marcussen stated, “I’ll tell you, I think the water rights issue being number one …. We start representing communities, citizens groups. I guess what I’m going to tell you is start getting organized.” The treaty rights conversation focused on the Nooksack River watershed where the Lummi and Nooksack tribes hold senior water rights under the 1855 Point Elliott Treaty. In the words of a handout distributed by Marlene Dawson, however, “It is my opinion that the Point Elliott treaty groups have no authority to seek ‘tribal’ water rights.”17

The conference in Bellingham concluded with CERA/CERF committing to help revive what many see as anti-tribal activism in Washington State and with Whatcom County’s smoldering embers of anti-Indianism stoked.

Water Is an Issue Too

In Whatcom County, a subject that can be affected by CERA/CERF’s instigation and mobilization of resentment toward Native Americans and their treaty rights is water, as water supply is a much-debated topic. That debate has heated up even more after PIT submitted its GPT permit application which showed it would use millions of gallons of precious Nooksack River water daily needed by PIT to spray on the 60ft. coal storage piles that would be at the terminal. PIT currently has a contract (through the year 2042) with the Whatcom County Public Utilities District (PUD) for a capacity of 5.33 million gallons per day of Nooksack River water.

A June 3, 2013 Bellingham Herald article18 entitled, “Water Dispute Clouds Future for Whatcom County Farms, Factories,” began with quite a mouthful, “Representatives of Lummi Nation have made it clear they will not sacrifice Nooksack River salmon to benefit farms, industries, or cities.” The article, while recognizing the Lummi Nation’s treaty rights to fish for salmon in the Nooksack (which depends greatly on the Nooksack’s instream flow) seems to pit the Lummi Nation against local farmers. Quoted in the article, local berry grower Marty Mayberry said, “Putting farmers out of business because of tribal water and fishing rights would embitter the community.” The article further points out that more than half of the water withdrawn by farmers is not authorized by state law. Wouldn't this unauthorized use embitter our community?

Two More Recent Coal Terminal Developments

First, The Bellingham Herald reported in a November 21, 2013 Politics Blog story19 entitled, “Former Washington AG McKenna Hired to help Coal States Fight for Export Terminals.” The story reported that Rob McKenna, while working for Orrick law firm in Seattle, prepared a formal comment (on Orrick’s letterhead) for the Millennium Bulk Terminal EIS scoping process for the proposed 44 million ton coal terminal in Longview Washington on behalf of the states of Montana and North Dakota. McKenna included the proposed GPT at Cherry Point in his comment saying, “Ecology’s EIS scope for the Cherry Point project is unrealistically broad, includes speculative impacts, requires impossible assessments of foreign environmental impacts, and appears to have been designed to hinder the development of that terminal.”

The second development was that the Alliance for Northwest Jobs and Exports (ANWJE), a front group created by Edelman PR originally for SSA Marine/PIT’s GPT project) has fired Alliance spokesperson Lauri Henessey. Mariana Parks was hired to replace her.20 Ms. Parks has worked closely with both McKenna and former Republican Washington Senator Slade Gorton. She was the spokesperson for McKenna when he ran for Washington State Governor in 2012. According to Parks’ LinkedIn page, she was Deputy State Director under Senator Gorton from 1989-1993, and then was President of the Gorton Legacy Group from 2000-2009. Under McKenna, the Office of the Attorney General led Washington State’s opposition to treaty fishing rights during Phase II of the Boldt decision (stemming from the 1855 Point Elliot Treaty) which addressed the issue of the state’s obligation to protect fish habitat, ensuring the tribes’ rights to fish in perpetuity. 21

Former Washington State AG and former Republican Senator (WA) Slade Gorton has had a reputation for his anti-Indian zealotry trying to abrogate and abdicate treaty responsibilities and battling to destroy tribal rights and sovereignty. In 1997, as a Senator, Gorton championed anti-Indian legislation, based on an HR 2107 rider that would have diminished, if not totally destroyed, the validity of Indian tribes as sovereign nations.22

So, Rob McKenna surfaces from out of nowhere to write an EIS scoping comment as an employee of Orrick, and Mariana Parks is hired as the new spokesperson for ANWJE. Out of all the possible communications talent to choose from in today’s marketplace, ANWJE selects someone who has worked for two Washington State politicians who both have a history of having been on the wrong side of supporting the concepts of treaty rights and tribal sovereignty for Native Americans.

Could our “let’s pretend” corporations have chosen to hire someone with Parks’ resume as part of their larger strategy?

Uphold Tribal Rights and Dignity in Ongoing Fight Against GPT

If any or all of this is part of the actual strategy of SSA/PIT and BNSF, it’s even more important than ever for people to stand with the Lummi Nation and other Indian Tribes and Indian Nations in opposition to the proposed 48 million ton coal terminal along the Salish Sea shoreline.

Whatcom Watch has made minor changes to the above article in the interest of community collegiality.

Footnotes

1. The LTE is no longer available on The Bellingham Herald website, but can still be found on microfilm at the Bellingham Public Library

2. https://nbharbinger.wordpress.com/tag/fossil-fuels/

3. http://www.sourcewatch.org/index.php?title=Pacific_Legal_Foundation

4. http://www.komonews.com/news/local/NOAA-Puget-Sound-killer-whales-to-stay-protected-218107071.html

5. http://www.whatcomwatch.org/php/WW_open.php?id=1604

6. http://www.bellinghamherald.com/2013/08/09/3133349/wetlands-destruction-breaks-trust.html

7. http://turtletalk.files.wordpress.com/2012/09/trampling-on-the-treaties11.pdf

8. http://inthesetimes.com/issue/24/22/stclair2422.html

9. http://intercontinentalcry.org/wall-street-tea-party-convergence-19421

10. http://www.programs.irehr.org/issue-areas/treaty-rights-and-tribal-sovereignty/item/478-take-these-tribes-down

11. http://www.programs.irehr.org/issue-areas/treaty-rights-and-tribal-sovereignty/item/478-take-these-tribes-down

12. http://www.programs.irehr.org/issue-areas/treaty-rights-and-tribal-sovereignty/item/478-take-these-tribes-down

13. http://whatcomworks.blogspot.com/2013/08/the-grand-deception.html

14. https://www.irehr.org/news/latest-news/item/478-take-these-tribes-down

15. https://www.irehr.org/news/latest-news/item/478-take-these-tribes-down

16. https://www.irehr.org/news/latest-news/item/478-take-these-tribes-down

17. http://www.programs.irehr.org/issue-areas/treaty-rights-and-tribal-sovereignty/item/478-take-these-tribes-down

18. http://www.bellinghamherald.com/2013/06/03/3033006/water-dispute-clouds-future-for.html

19. http://www.bellinghamherald.com/2013/11/21/3329824/former-washington-ag-mckenna-hired.html

20. http://blogs.seattletimes.com/politicsnorthwest/2013/12/03/pro-coal-alliance-fires-spokeswoman-after-hot-mic-incident

21. http://www.seattlepi.com/local/article/Boldt-Decision-very-much-alive-30-years-later-1136821.php#page-

22. http://lenapelady.tripod.com/termination1.html


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