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Ancient remains become bone of contention

By Meg Olson

Close to half a dozen projects along Point Roberts shorelines are on hold because they either have, or might have, a Native American grave under ground. Cultural resources staff members and volunteers from the Lummi Nation have been on the Point most of the summer excavating graves found in foundations and swimming pools, and sparking a swarm of rumors and worries about where the property owners’ rights stop and the tribe’s start.

“All I’m getting is gobbledy-gook,” said property agent Heather McPhee, after Lummi tribe members visited the site of a septic replacement in Maple Beach in the last week of September and told the contractor to stop work. Contractor Jeff Peltier said he had found no indications of human remains or artifacts. He asked tribal members to leave the property, as they weren’t covered under his insurance policy for the job site. “They aren’t above the law,” Peltier said. “I said if you don’t have a court order get out of my way.”

McPhee said the tribe did not contact her but called the county health department. Chris Chessom of that department, after consulting with legal staff, told McPhee and Peltier they could be legally liable if work continued prior to an agreement with the tribe. “Now it’s up to me to hire a lawyer who will contact the Lummi who will probably come out here and charge me to tell me there are no Lummi secrets on a 50 by 100 lot that’s had a house on it since 1920, in a hole that already had a septic in it,” McPhee said, adding she still has not learned what regulatory authority covers the situation. “As far as I’m concerned if there is Lummi stuff there now it belongs to the people who bought the land.”

June Meikle and her husband were digging a swimming pool on their beachfront property in Maple Beach when they found human remains. They also had permits from the county and called the land use division. Lummi cultural resource staff came to the site. “I’ve talked to some people who dealt with it by digging their heels in and it got them nowhere,” Meikle said. “We didn’t do that and once they knew we would cooperate with them fully they have been wonderful: cooperative, pleasant, helpful.” The Meikles were offered the option of retaining Lummi tribal staff to do the work of obtaining a state permit to remove the remains or hiring their own archaeologist. “They left it up to me and there was never a question of the pool not going in.”

Rather than swimming this summer, the Meikle family joined Lummi archaelogists and volunteers screening the fill removed from the site of the pool excavation. “Yes, the pool didn’t go in but we had a wonderful time. They wanted it to be an educational experience and my family and friends were drawn into the fold."

Meikle and McPhee are at different poles in dealing with the tribe, but their understandings of what just happened in a regulatory sense are similar. “The county issued all the permits for it and nowhere does it say I need to contact the tribe,” McPhee said. “Am I getting anything on whose job it is to regulate this? None whatsoever.”

Meikle also had county permits for the pool project in place. “Whatcom County should have told me I needed an archaeological permit,” Meikle said. “They were remiss. No one said a thing.”

John Guenther with the county land use division said the rules for dealing with cultural finds are foggy. “It’s not a lack of law. There’s plenty of law. There’s just a lack of process.”

In the maze of bits of law covering protection for historic and cultural resources, there are volumes of provisions protecting Indian burial sites, punishing those who knowingly disturb them and providing for their return to the tribe most closely linked to them. Federal laws only apply to federal and Indian lands and artifacts already in collections. State law, and its reflection in county laws, covers artifacts and burials found on private property. According to the Revised Code of Washington (RCW 27.44.040) anyone who disturbs Indian graves inadvertently through construction, mining or any other activity is compelled to reinter them under the supervision of the appropriate tribe. RCW 27.53.060 also provides for a permit to remove remains once they are discovered after guidelines have been developed in consultation with the affected tribe. Disturbing a grave knowingly or defacing remains is a felony, punishable by up to five years in jail and a fine up to $10,000.

Neither state nor federal law contain provisions that compel private property owners to consult with tribal authorities prior to beginning a project, allow them on to their property for inspection, or pay for excavation and reinterment.

However neither the state or the county appear to know who, outside of the courts, has jurisdiction to enforce the law. “We have no authority to stop a project and the tribe has no authority to stop a project,” said state historic preservation officer Allyson Brooks. “The city or the county or the courts would. Property owners should coordinate with the county and they would talk to our office about monitoring or permits.”

The county, however, doesn’t see it that way. “The county does not have regulatory authority, the state does,” Guenther said. “The only two state regulations the county administers are the state environmental policy act and shoreline management.” He also thought that tribal members did have authority if they observed cultural resources at a site, but he was unsure what authority, how it was bestowed or how it was administered. His advice to property owners was to contact the tribe.

“There has been a lot of jurisdictional confusion between the county and the state and it seems they just leave it as a battle between the property owner and the tribe,” Meikle said.

Brooks said her office became involved after an archaeologist had assessed the site and the tribe had been consulted to issue a permit to remove remains from a site. “You want to document it and remove it properly. It’s a delicate situation for everyone,” she said. “You can’t just jump in with a bucket.”

Archaeologists don’t work for free. Brooks said the cost of archaeological assessment, monitoring and excavation usually fell to the property owner. “I’ve seen tribes share the cost with the landowners but you have to case by case,” she said. While the state code states that the office of archaeology and historic preservation will pay for reinterment of remains when the legislature allocates funding, Brooks said they never have. “We’ve never been given funds to do this but if we were we have the authority to use funds for that purpose,” she said.

In Meikle’s case the archaeologists were from the tribe, which offered to pick up part of the tab. She still expects a bill though, and she doesn’t know how much. “I know it won’t be $20,000 and I know it won’t be $1,000, but somewhere in between,” she said. “Some people say so, but this isn’t a money making scheme for them. They put in a lot of hours and use mostly volunteers. This isn’t about money or power. It’s cultural and it’s spiritual. A lot of myths have been dispelled for me.”

McPhee isn’t so sure. To her, it looks like the tribe was looking for another hole to pull some money out of. “If it was undisturbed land, like a swimming pool on the beach, I could understand it,” she said. “The property owner here is just trying to do the right thing and upgrade the septic and what’s it going to cost him? It’s ridiculous.”

Aaron Thomas, Lummi Nation media representative said that the tribe has specific procedures they follow to deal with culturally sensitive sites on private property, that were best explained by members of the cultural resources staff. They were not available for comment.

Meikle said she has changed how she looks at her properties near the beach. “I know now I’m restricted in how I can use my property, but no more than someone by a salmon stream,” she said. She recommends skipping all the intermediaries and calling the tribe before starting a project, “Just like you call the phone or gas company before you dig so they can come and mark the lines.”

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