The Lummi Nation has filed a preliminary injunction to cease all construction operations at Point Roberts during an ongoing lawsuit against Whidbey Telecom, Whatcom County, the United States Department of Agriculture and the United States Department of Commerce.
The lawsuit alleges that the defendants all played a role in the continuous disturbance and damage to ancestral remains on the peninsula. The events, the lawsuit states, occurred over the course of three multi-year and multi-million federally funded broadband projects that Whidbey Telecom conducted in Whatcom County.
“The nation spent three years trying to resolve this largely with the actors it ended up needing to sue,” said Jessie Barrington, an attorney at Cultural Heritage Partners, PLLC, and counsel for the Lummi Nation. “Litigation was the only viable alternative left at this point."
The lawsuit, filed on April 27, states that Whidbey Telecom repeatedly ignored archaeological indicators when disturbing burial grounds, failed to notify the corresponding authorities and consult the Lummi Nation, and the latest disturbance “permanently lost a Lummi cranial fragment that can never be recovered or reinterred.”
“This didn’t have to happen,” Elizabeth Horton, archaeologist and cultural resources specialist for Cultural Heritage Partners, said. “It’s not as if consulting with the nation means you’re not going to be able to do the project you want to do; it means you’ve done it right.”
Lena Tso is the Lummi Nation tribal historical preservation office manager and compliance manager. Tso noted that they are a long way away from being able to care for the disturbed sites and their ancestors.
“Disturbance to sacred sites is not new, however, I would hope devastating cases like this would cease or lessen,” Tso said. “I would hope agencies would build better working relationships with tribes and technical staff receive more training.”
“It is a failure to not follow the law, and then upon realizing that the law had not been followed, there is a failure to not rectify it,” Horton said.
The lawsuit alleges that Whidbey Telecom is guilty of breaching its statutory duty to consult the Lummi Nation, gross negligence of Washington common law and violating the Indian Graves and Records Act.
“A lawsuit is a blunt instrument,” Barrington said. “No remedy a court can order will fully undo what has already been done at Point Roberts. Some things, once lost, are lost for good.”
The preliminary injunction, an emergency motion to halt all work Whidbey Telecom is conducting at Point Roberts, will be heard on June 18.
A tribal citizen in the Pacific Northwest noted shock around the seemingly unwillingness of Whidbey Telecom to cooperate and to try to streamline the projects for convenience, even though tribes have a historic precedent of working collaboratively with companies.
This person requested to remain anonymous in this article to maintain their privacy because of their role in the case.
“Looking at the facts of the case, it's very shocking to me,” they said. “They try to work together and to see a company disregard that, it results in these really bad scenarios.”
They also noted that sometimes the only way to make people pay attention to the disregard for cultural sites is to put a dollar value on the damage.
The current Lummi Nation lawsuit is not seeking financial compensation.
“There is no better way to end up with a project being stalled out for years and years on end by doing first and asking for forgiveness later,” Horton said. “It doesn't work like that.”
In a statement provided to The Front, Donna Hilty, the CEO of Whidbey Telecom, noted that the principal fiber optic projects have been paused for three years and will continue to be suspended.
“In the meantime, Whidbey Telecom will continue to serve customers in Point Roberts to the best of its ability with existing infrastructure,” Hilty said.
Whatcom County was unable to provide a comment on the current litigation.
“The nation is asking for one thing, which is that the federal government, Whidbey Telecom and Whatcom County follow the federal and state laws that have governed this work all along,” Barrington said.
Tso noted that many resources, like the land shorelines and waterscapes at Point Roberts, need to be managed and protected, as not all resources can be replaced, and indicated that the simple act of reflecting on how actions will affect them is crucial to the continued preservation of these areas.
“These are significant disturbances; however, there are hundreds if not thousands of projects that have happened and were successful because someone took the time to follow the federal regulation and ask, ‘Will this have impacts (on) your people,’” Tso said.
River Martinez (he/him) is a city news reporter for The Front this quarter. He is a first-year visual journalism and political science major. River spends his time doing model United Nations, climbing and tinkering on his film camera. You can reach him at marti722@wwu.edu.
