"Representing" an Indian Tribe: Part One

Text of a letter sent yesterday (6/24/14):

June 24, 2014

The Honorable John T. Rymer

Inspector General

U.S. Department of Defense

4800 Mark Center Drive
Alexandria, VA 22350-1500

Dear Mr. Rymer:

I write as a taxpayer, voter, veteran, and owner of a small business to request that you investigate what I believe to be at least negligent, and quite possibly intentional, interference in my business activities by personnel of the Seattle District, U.S. Army Corps of Engineers, including District Engineer Colonel Bruce A. Estok. 

Besides being objectionable to me as a small businessperson, the District’s behavior concerns me because it suggests a bias in favor of the applicant for a Corps Clean Water Act (CWA) permit,  calling into question the District Engineer’s ability to make the public interest decision required under 33 CFR §§ 320-330.

By way of background:  I am an independent contractor who consults, writes, and teaches about historic preservation and environmental impact assessment.  My specialty is federal agency compliance with the National Historic Preservation Act (NHPA).  Although I sometimes teach and consult for DOD and other federal agencies, much of my work today is done for Indian tribes.  I assist tribes in making sure that their traditional cultural places are recognized as eligible for the planning consideration guaranteed by the NHPA for places that are eligible for the National Register of Historic Places (NRHP); I also support tribes in consulting with federal agencies and others under Section 106 of the NHPA.  I am the author of most contemporary textbooks on such matters, and am generally recognized as expert in dealing with them.

I am under contract with the Lummi Nation, a federally recognized tribe in Washington State, to assist that tribe in consultation with the Seattle District in connection with the Corps’ potential issuance of a CWA permit for the proposed Gateway Pacific coal terminal at Cherry Point near Bellingham, Washington.  The project is currently the subject of an environmental impact statement (EIS) being prepared for the Corps.

I have been critical of the District’s handling of this case.  My strong impression is that the District’s approach has been and continues to be disingenuous and prejudicial to Lummi interests, as well as  to the integrity of a cultural landscape called Xwe’chi’eXen by the Lummi.  I believe Xwe’chi’eXen is eligible for the NRHP.

On May 28, after repeated efforts by the Lummi to prevail upon the Corps to pay attention to their concerns, Lummi leadership met with Col. Estok and members of his staff.  In the course of their conversation, Col. Estok informed the tribal leaders that I had contacted staff of the EIS contractor, purporting to “represent” the Lummi nation.

Of course, no one can “represent” a sovereign Indian tribe without the express permission and direction of the tribal government.  Because unscrupulous whites have pretended to such representative status over the last few centuries, with disastrous results, tribes are universally and understandably very sensitive about such pretensions.

I have never suggested to anyone that I “represent” the Lummi.  What I in fact did, with the permission of the Lummi leadership, was to telephone a representative of the EIS contractor – a company for which I formerly provided training – to tell them that I was working with the Lummi and to encourage them to address the Tribe’s actual concerns with impacts on the Xwe’chi’eXen landscape.  The District and project proponent have tended to ignore this landscape, instead focusing solely on an externally defined archaeological site called 45WH1.  Naively perhaps, I thought the EIS contractor was in the business of collecting data from a wide range of sources in order to assess objectively the project’s environmental impact and inform the Corps’ public interest decision.  This is apparently not the case; rather than taking my call or responding to my voicemail message by contacting the Lummi, the EIS contractor apparently reported the contact directly or indirectly to Col. Estok.

Exactly how my voicemail message came to be misinterpreted as a statement that I “represented” the Lummi is not known to me.  However, it would clearly be in the interests of the Gateway Pacific project proponent to deprive the Lummi of access to expert advice, and by casually reporting that I had said I “represented” them, Col. Estok – whether negligently or intentionally – advanced those interests.

Whatever Col. Estok’s intention, his statement inappropriately and improperly raised questions in the minds of the Lummi leadership about my actions.  They contacted the EIS contractor and ascertained the actual content of my voicemail message (See attached letter of June 3), so it is my hope that Col. Estok’s action will not have a serious impact on my relationship with the Tribe.  However, Col. Estok has not formally corrected the record, which continues to reflect his untrue allegation.  As you may be aware, such allegations can take on lives of their own; if the false and defamatory rumor were spread that I was in the habit of purporting to “represent” tribes with whom I work, it would have a serious and deleterious impact on my business, and on my ability to help tribes make sure that their cultural environments are properly considered in environmental impact assessment.

I ask that you investigate this matter, and if you find – as you will – that my account of the matter is accurate, you exercise your authorities and responsibilities to ensure that the Corps immediately issues a formal statement correcting the record. 

Thank you for your attention to this request.

/S/ Thomas F. King