Tribal treaty fishing rights give Washington tribes the opportunity to weigh in on, and even block, projects that could impact their fishing grounds.
Dozens of crab pot buoys dot the waters around Lummi tribal member Jay Julius’ fishing boat as he points the bow towards Cherry Point – a spit of land that juts into northern Puget Sound near Bellingham, Wash.
It’s a spot that would be an ideal location to build a coal terminal, according to SSA Marine, one of two companies that hopes to build a terminal here. If the company has its way, up to 48 million tons of coal could move through these waters each year aboard more than 450 large ships bound for the Asian market.
SSA Marine has its eye on Cherry Point because it’s surrounded by deep water with quick access to the Strait of Juan de Fuca and the Pacific Ocean.
But if the Lummi and other tribes exercise their fishing rights, there may not be any coal ships servicing American terminals in these frigid Northwest waters.
“I think they’re quite disgusting,” Julius said when asked how he feels about the terminal backers’ efforts to make inroads with the Lummi. “It’s nothing new, the way they’re trying to infiltrate our nation, contaminate it, use people.”
‘People Of The Sea’
One out of every ten members of the Lummi Nation has a fishing license. Ancestors of the Lummi, or “People of the Sea” as they are known, and other Salish Sea peoples have fished the waters surrounding Cherry Point for more than 3,000 years. Today Lummi tribal officials are sounding the alarm about the impacts the Gateway Pacific Terminal could have on the tribe’s halibut, shrimp, shellfish and salmon fishery, which is worth a combined $15 million annually.
Tribal treaty fishing rights could play a major role in the review process for the Gateway Pacific Terminal. According to the Northwest Indian Fisheries Commission, nine tribes’ treaty fishing grounds would be impacted by the Gateway Pacific Terminal and the vessel traffic it would draw.
In the mid-1800s, tribes in this region signed treaties with the federal government, ceding millions of acres of their land. Native American populations plummeted and the survivors were relegated to reservations.
The tribal leaders of the time did a smart thing, said Tim Brewer, a lawyer with the Tulalip tribe in northwestern Washington: “They insisted on reserving the right to continue to fish in their usual and accustomed fishing areas. It is an extremely important part of the treaty.”
But those fishing rights weren’t enforced in Washington until the Boldt Decision, a landmark court decision in 1974 that reaffirmed tribal fishing rights established more than a century before.
“If a project is going to impair access to a fishing ground and that impairment is significant that project cannot move forward without violating the treaty right,” Brewer said.
Since the Boldt Decision, tribes have been fighting for their treaty rights.
In 1992, the Lummi stopped a net pen fish farm that was proposed for the waters off of Lummi Island by a company called Northwest Sea Farms.
Learn more: Attend a Dec. 6 Town Hall Seattle discussion with KUOW/EarthFix reporter Ashley Ahearn.
But agreements have been made in other situations. The Elliott Bay Marina, the largest, privately-owned marina on the West Coast, was built in 1991 within the fishing area of the Muckleshoot tribe. It took 10 years of environmental review. The Muckleshoot fought the project but ultimately came to an agreement with marina supporters.
When Dwight Jones, general manager of the Elliott Bay Marina, was asked if he had any advice for companies that want to build coal terminals in the Northwest, he laughed.
“I’d say good luck,” Jones said. “There will be a lot of costs and chances are the tribes will probably negotiate a settlement that works well for them and it will not be cheap.”
Jones said the owners of Elliott Bay Marina paid the Muckleshoot more than $1 million up front and for the next 100 years will give the tribe 8 percent of their gross annual revenue.
“Anyone who’s in business can tell you that 8 percent of your gross revenues is a huge number,” he said. “It really affects your viability as a business.”
Starting Negotiations
SSA Marine and Pacific International Terminals – the companies that want to build the terminal at Cherry Point – have lawyers and staff members working to negotiate with the Lummi to build the terminal. The companies declined repeated requests for interviews.
Last summer, Julius and the rest of the Lummi tribal council sent a letter opposing the coal terminal to the US Army Corps of Engineers. The federal agency will have final say over the key permits for the coal terminal.
In the letter the Lummi lay out their argument, which centers around threats to treaty fishing rights and the tribe’s cultural and spiritual heritage at Cherry Point.
But there’s a line at the end of the letter, which legal experts and the Army Corps of Engineers say leaves the door open for continuing negotiation on the Gateway Pacific Terminal: “These comments in no way waive any future opportunity to participate in government-to-government consultation regarding the proposed projects.”
This is the second installment of a two-part series. Read part one here.
Read more environmental coverage at EarthFix.