Lummi Island Softball

Fri, Aug 20, 2010, 3:26 pm  //  Tip Johnson

The Lummi Island community is scheduled to disintegrate, commencing immediately.

Under the Lummi Nation's threat to interupt ferry service in October, parents must now consider how their children will get to school. Island residents with mainland jobs will need to rethink how they might get to work and back home. Elderly with medical conditions will want to know how they will see their doctors in town, and whether emergency services will be available. Many may be forced to consider moving off the island, and wonder how the value of their homes will fare. Island businesses will have to project how many customers they will lose and if they can continue operating. Folks with weddings planned at the island's premier inn might need to change venues or arrange private transportation for their guests. Year round residents will not know if propane can be delivered or garbage picked up. The ramifications are boggling. You'd think they would be hopping mad, but they're not. They're confused.

It's not surprising. Despite the impacts it will have on their community, they have been categorically excluded from any discussion of the problems and potential solutions. They have no idea what's going on or what to expect. The Lummi Nation has demanded all negotiations proceed in secret.

The County had a contract with the Tribe that should have provided for 25 years of ferry service. But earlier this year the Tribe decided not to renew according to the contract's terms. The contract would have established payment for crossing tribal tidelands at $5,500 per month. The Tribe's current demands, lumped together, escalated at 3% annually and amortized over the 35 year term, amount to about $57,000 per month. An adjacent pier is charged only $150 per month. Time is running out. The Lummi Nation wants a committment by September 1st, or a plan for discontinuing the ferry by October 15th.

Islanders met recently to discuss their options in advance of a County Council session scheduled on-island next week. During an open forum discussion, residents expressed frustration. They have been working with attorneys neither the Tribe or County will talk to. They have been writing their elected federal representatives to no avail. They are still being kept out of the loop on developments, and seem unable to gain any traction on the issue. Several discussed the possibility of foot ferries to Bellingham, concern for ferry impacts on the reservation, and a sense that they need to infuse more power into their effort - and quick! As a group, however, their position is perhaps overly moderate under the circumstances.

They want to continue promoting a long term lease, even though no previous leases have stabilized the situation and the right-of-way was approved back in 1920. They encourage "support of process and measured restraint", asking everyone to "avoid conflict", and want to "avoid public statements that could adversely affect Whatcom County’s and Lummi Nation’s ability to negotiate a favorable resolution". Many cannot decide whether to focus their angst on the Tribe, who has imposed the demands, or the County Council which is feebly trying to help - albeit without any authority. That's softball.

I have been following this issue since January and can sympathize with their frustration. No one in authority will touch this issue. Even the local media give it little press. You can continue reading and assemble related articles in the center column by clicking here.

I think islanders are being too nice. In any number of analagous asymmetrical government affairs, I have observed that when those with the power to take it get their eyes on a big pot of money, no amount of being nice will turn them away. Once they start drinking the Kool Aid and believing their own most unlikely stories, it takes much, much more.

In a nutshell, Lummi Islanders are hostages in the Lummi Nation's bid to exact discriminatory and injurious payments from the County. The Lummi gambit is among the flimsiest scams I have ever seen in government. They are exploiting bureaucratic oversights, quirks of legislation and their infinite legal resources to fabricate a claim that simply can't hold up.

They claim that a court ruling on reservation boundaries allows them to negate decades of government approvals, to restrain trade and commerce, to obstruct navigation and public facilities on navigable waters, to restrict federally licensed vessels, to charge extortive tolls unrelated to improvements - esentially to usurp the authority of Congress and the federal administration, and to ignore the law. They claim that a missing signature on a signature block (that inexplicably appears in a different type face than the rest of the document) grants them the authority to abrogate a lease and defy a federal consent decree that was in force for 25 years - without return of the generous land conveyances that now support several tribal facilities. It's a lot of hooey.

The right-of-way was federally approved for the purpose of a ferry. The ferry dock was approved by the U.S. Army Corps of Engineers. The vessel is enrolled and licensed by the federal government. The land in dispute is owned by the federal government, in trust for the Tribe. The ferry has supported this community for a century, but Lummi leaders now believe they have the authority to curtail its operation and wreak destruction on an entire community.

In Harmon v. City of Chicago, the court found that such vessels, "cannot be obstructed, or impeded so as to impair, defeat or place any burden upon a right to their navigation granted by Congress." In Charles River Bridge v. Warren Bridge, the court waxed philosophically on the principle that abandonment of the State's "power of improvement and public accommodation...ought not be presumed" when "the deliberate purpose of the State to abandon does not appear." This ruling continues, "While the rights of private property are sacredly guarded, we must not forget that the community also have rights, and that the happiness and wellbeing of every citizen depends upon their faithful preservation." In Port Richmond, etc., Co, v. Hudson County, the decision states, "[A ferry] presents a situation essentially local. It has never been supposed that because of an absence of federal action the public was unprotected from extortion." But this has to be a political fight, not a legal one. The federal government is bound as trustee to defend the Tribe's position. Lummi Islanders, much less Whatcom County, can not afford to mount a legal action against that force.

Politically, things look much better for the islanders, except that their elected federal representatives will not respond. U.S. policy calls for the intervention of a federal negotiator to seek mutually beneficial settlements with tribes over historic disputes. It discourages local jurisdictions from squabbling over such issues with tribes. Even getting these talks out in the open and on a level playing field would be a huge improvement. But when representatives would rather receive contributions from Indian gaming facilities than address constituent crises, what's an island to do?

O.K., here's a freebie: Get hopping mad and squeak, squeak, squeak! Quit writing your lazy represenatives with a host of hairbrained ideas and disparate concerns. It's obviously a waste of time.  Send talking points to their opponents. Punctuate your position and discipline your message in a petition like this. Mount a massive email campaign to have every resident, family, friend, visitor and customer download a copy and get at least ten signatures. Collect ten thousand signatures in a matter of weeks. Take pictures of all the island school children and append them to the petition. Deliver it with theatrical fanfare. Cook up some stunts. Do a bottle drop with "Help! Trapped on Lummi Island" notes inside. Invite finders to download a petition. Make some T-shirts along the same theme. Stage a protest on the ferry dock, or form a picket in front of the casino and get some media attention. That is how you get traction on an issue, not by being nice.

That's it! Forgive me for venting my own frustration with a community that for eight months has failed to muster the gumption to oppose a serious and imminent threat and ridicule the ridiculous. The Chinese have a saying, "One can accomplish whatever one desires, in the absence of a countervailing force." It's time to directly address the force countervailing islanders desires, and to become a countervailing force to these peculiar aims of the Lummi Nation. It's time for hardball!

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