Tribe urges members of Senate Indian Affairs Committee to honor treaty rights

BELLINGHAM, WA–Today, Lummi Nation Chairman Tim Ballew II, sent a letter to U.S. Senator Steve Daines (R-Montana) responding to the Senator’s efforts to influence the U.S. Army Corps of Engineers in favor of the Gateway Pacific Terminal. The proposed project would result in the construction of North America’s largest coal terminal in Lummi fishing waters. Last week, Daines, along with 32 members of the Senate and House, sent a letter to U.S. Assistant Secretary of the Army Jo-Ellen Darcy urging the Corps to ignore the Lummi Nation’s treaty rights as an independent basis for denying a permit for the project.

The letter also follows three separate efforts by Senator Daines in recent weeks to attach an amendment to unrelated legislation moving through Congress that would prevent the Corps from analyzing Indian treaty rights on an independent basis from the overall Environmental Impact Study (EIS) required for the project.
“Senator Daines and his colleagues seem to ignore the fact that the Tribe’s treaty rights are paramount,” said Ballew. “By attempting to ignore these rights, the senator and his colleagues are proposing a vast waste of federal resources that could cost the taxpayers millions. The bottom line is that the terminal would impede Lummi’s treaty-protected fishing rights—rights that the U.S. government has a constitutional obligation to uphold.”
“Senator Daines has repeatedly sought to interfere in the Army Corps’ regulatory review process by seeking to attach legislative amendments to various bills moving through Congress,” said Ballew. “It’s unconscionable that, as a member of the Senate Indian Affairs Committee, he chooses to ignore treaty rights. He has repeatedly tried to diminish the rights of the Lummi Nation using ‘middle-of-the-night’ stealth legislative tactics that have prevented stakeholders from weighing in. Senator Daines and his allies in Congress should respect existing law and allow the Army Corps to do its job without political interference.”
August 3, 2015
The Honorable Steve Daines
United States Senate
Washington, D.C.  20510

Re: Response to Your Letter to the U.S. Army Corps of Engineers in Support of the Gateway Pacific Terminal

Dear Senator Daines:

I am in receipt of a copy of the letter that you and other members of the Congress sent to the U.S. Army Corps of Engineers (the “Corps”) arguing that the Lummi Nation’s treaty rights to harvest fish not be given priority consideration by the Corps in its review of the Gateway Pacific Terminal (“GPT”) planned for construction in our aboriginal waters.  Because I believe your letter misstates the regulatory review process currently underway, and reflects a fundamental misunderstanding of the significance of the Indian Treaty Rights at stake, I write in an effort to improve your understanding in order to avoid further attempts to undermine the Corps’ regulatory responsibilities. 

Background on the Corps’ “Two-Prong” Regulatory Process. As we both know, the GPT project, if constructed, would be the largest deepwater port in the Northwest.  I am also aware that your state also stands to gain significant economic benefit from the mining of coal within its territory and hopes that the Gateway Pacific Terminal would connect its resource to Asian markets.  As the National Environmental Policy Act (NEPA) requires, the Corps has been conducting an environmental review of the proposed project which is expected to be concluded in 2017.  Lummi has been an active participant in the environmental review.

The Corps is also engaged in a separate and independent analysis, at our request, of whether the proposed project will have more than a de minimis impact on the Usual & Accustomed Treaty Fishing Rights of the Lummi Nation.  

Your Recommended Approach Promotes Potentially Wasteful Agency Review.  The “two-prong” approach serves at least two purposes.  First, it allows the Corps to independently and clearly assess the impact of the project on Treaty Fishing Rights.  And second, it serves to promote regulatory efficiency and reduce environmental review costs. 

The Corps must assess the impact of the Gateway Pacific Terminal on our Treaty Fishing Rights regardless of the timing of that approach.  Under the course of action you recommend in your letter, the Corps could come to the conclusion that there is more than a de minimis impact on our Treaty Fishing Rights and deny the permit after years of NEPA review and expenditure of millions of dollars of agency costs.  Under the approach currently being pursued by the Corps, a finding of more than a de minimis impact of the Project on our Treaty Fishing Rights would result in immediate denial of the permit before completing an arguably superfluous environmental review process. 

The path chosen by the Corps’ best serves the interests of all affected parties and is the least wasteful of time and resources.  

Treaty Fishing Rights Have Superior Priority.  Unfortunately, you fail to fully appreciate the U.S. government’s obligation to protect and preserve our Treaty Fishing Rights.  These rights cannot be easily ignored by the Federal government.  In exchange for relinquishing our aboriginal lands we negotiated the guarantee of certain rights.  Among other things, we retained the right to fish in our Usual and Accustomed waters. 

For the Lummi and other tribes in our region, the preservation of Treaty Fishing Rights in our treaties with the United States was, and is, extremely important.  We are, and always have been, a fishing people.  We rely on fish for our survival.  We rely on fish for our culture. We rely on fish for our Schelangen — our traditional way of life.

For over 100 years following our treaty with the United States our Treaty Fishing Rights have been systematically deprived and jeopardized.  Eventually the U.S. courts recognized the Treaty Fishing Rights of the Washington Tribes.  The Treaty Fishing Right guarantees both harvest of fish and access to our usual and accustomed fishing grounds and stations. The proposed development of the Gateway Pacific Terminal would gravely deny access to our fishing resources.  

The United States’ trust responsibility to uphold the Treaty Fishing Right requires that the Corps analyze the impacts of the Gateway Pacific Terminal independent of the NEPA process. As a member of the Senate Indian Affairs Committee you should be an advocate for honoring treaty rights.
Efforts to Direct Congressional Interference into the Corps’ Regulatory Process by Stealth Amendments Should Be Stopped.  In addition to your Letter, I am aware of your repeated attempts to attach amendments to various unrelated legislation in an effort to achieve your goal of supporting the Gateway Pacific Terminal (see e.g. your proposed amendment to the Internal Revenue Code addressing Affordable Care Act employer mandates).  Any effort to affect the scope or administrative relevance of any Indian treaty rights should be addressed — if at all — in open meetings of the Senate and House Indian Affairs committees with full and fair engagement of the Lummi Nation and other affected tribes.  If you are so compelled, I urge you to take the more honorable path of pursuing any of your proposed changes to the Corps’ regulatory process through standard practice as opposed to “middle-of-the night” legislative changes.

The Inevitability of Litigation and Potential Damages Claim Against the U.S. Government if Treaty Fishing Rights are Sacrificed.  At this stage in the process, it seems inevitable that litigation will arise regardless of the Corps’ decision to allow or reject the Gateway Pacific Terminal.  I can assure you, that if the Lummi Nation’s Treaty Fishing Rights are jeopardized by any efforts to allow the project to proceed, we will fight vigorously by all means necessary.  In times past, our Nation and its leaders did not have the resources and were unable to stop prior efforts to construct commercial terminals in our region.  That day is no more.  While we may not like it, we are committed to fully utilizing the Federal agency review process and the Federal courts to address our concerns.    
Conclusion.  I am hopeful that this letter helps clarify your understanding of the Lummi Nation’s position and encourages you and your colleagues to pursue a more respectful approach to the U.S. government’s treaty obligation to protect our Treaty Fishing Rights.

If you have any questions or comments on this issue, please do not hesitate to contact me.

Timothy Ballew II

Senate Indian Affairs Committee
House Resources Committee
Other Senators and Representatives on July 28, 2015 Letter
H.R. 22 amendment: 
EDW15757                                                                                                                  S.L.C.
AMENDMENT NO.__________                                                           Calendar No.__________
Purpose: To ensure proper review of certain Indian treaty rights by the Corps of Engineers.
H. R. 22
To amend the Internal Revenue Code of 1986 to exempt employees with health coverage under TRICARE or the Veterans Administration from being taken into account for purposes of determining the employers to which the employer mandate applies under the Patient Protection and Affordable Care Act.
Referred to the Committee on ____________________and ordered to be printed
Ordered to lie on the table and to be printed
AMENDMENT intended to be proposed by __________________to the amendment (No. _________) proposed by _________________
1      At the appropriate place, insert the following:
4      (a) DEFINITION OF INDIAN TRIBE.—In this section,
5      the term ‘‘Indian tribe’’ has the meaning given the term
6      in section 4 of the Indian Self-Determination and Edu-
7      cation Assistance Act (25 U.S.C. 450b).
1      (b) REVIEW PROCESS. —The Corps of Engineers shall
2      not make any determination of treaty rights of Indian
3      tribes regarding usual and accustomed fishing grounds
4      and stations in connection with the proposed Gateway Pa-
5      cific Terminal project at Cherry Point in the State of
6      Washington until after the Corps issues a final environ-
7      mental impact statement required under the National En-
8      vironmental Policy Act of 1969 (42 U.S.C. 4321 et seq.)
9      that includes review of any impact of the project on treaty
10     rights of Indian tribes. 

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