Wednesday, November 12, 2014

Still More (sort of) on "Representing an Indian Tribe."

Devoted readers of this blog (both of them) will recall that on June 25, 2014 I posted a piece about “representing” an Indian tribe.  The Seattle District Engineer of the U.S. Army Corps of Engineers had falsely alleged that I had – well, represented myself as representing the Lummi Nation, something I could not do, and had not done.  I believe that the District Engineer’s allegation was designed to turn the Lummi Nation – my client – against me, and I asked the Department of Defense’s Inspector General to look into the matter.  On June 28th I posted a further discussion of some of the issues raised by the District Engineer’s action.

Eventually – as expected, because why should the Inspector General trouble himself with what is merely the dishonest and abusive action of a DOD official visited upon a taxpayer and veteran small business owner, potentially depriving a federally recognized Indian tribe of expert advice? – the IG sent me a brief letter saying, in effect, “tough shit,” but he did refer the matter to the Corps’ own IG.

From whose office, in the person of Kevin Elliott, Chief of the Assistance and Investigations Division, I received the following Email on September 9:

The US Army Corps of Engineers IG (EIG) received this case from DAIG where it was referred to from DoD IG.  I have read your statement and have spoken to COL Estok concerning your allegations.  While COL Estok may have said that you "represented" the Lummi Nation, the context in which it was used did not mean that you were a "representative of" the Lummi Nation.  The Lummi Nation gave you permission to call the Corps and speak to them concerning the boundaries of the Xwe'chi'eXen landscape and as such COL Estok said that you were "representing" the Lummi Nation.  In a subsequent letter from the Lummi Nation, Mr. Timothy Ballew II, Chairman and Business Council; dated June 3, 2014 stated that they investigated and that they learned "conclusively that [you] did not make that assertion; rather [you] said [you] were "working with" them.  Since the Lummi Nation has stated their view and fully know that you did not say that you "represented" them you should have no concern to the impact on you business.  It is the EIG opinion that COL Estok may have used the wrong word but it was not done in a defamatory manner nor was it vindictive and intentional to interfere in your business activities.

As for your impression that the Seattle District's approach to the proposed Gateway Pacific Coal Terminal project has been and continues to be disingenuous and prejudicial to Lummi interests, there are processes that are statutorily mandated with regard to this matter.  The Corps of Engineers is currently considering issuing a Clean Water Act (CWA) permit for the proposed Gateway Pacific Coal Terminal at Cherry Point near Bellingham, WA and it is currently being studied and an Environmental Impact Statement (EIS) is being prepared to better aid the Corps in making a final decision.  Additionally, you and the Lummi Nation have had and continue to have opportunities to voice your concerns and opinions in this matter.  It is inappropriate for the IG to insert itself into these processes at this time.

Finally, if you believe the Xwe'chi'eXen is eligible for the National Register of Historic Places (NRHP) then the process to have it designated should be followed to have it approved and listed.  Until this has been done, it cannot be treated or considered as such.

There is nothing appropriate for the IG at this time and no further action will be taken.

In other words, the Colonel really didn’t mean to do it, and it didn’t matter anyway, and – well, it was the last paragraph (highlighted above) that rather raised my eyebrow, since it suggested that the IG didn’t understand the relevant law. 

So for what it’s worth (precious little, I imagine) I replied:

Mr. Elliott --

Without addressing the rest of your email just received, let me suggest to you that your understanding of federal agency responsibilities under Section 106 of the National Historic Preservation Act is a bit dated.

You say:  "Finally, if you believe the Xwe'chi'eXen is eligible for the National Register of Historic Places (NRHP) then the process to have it designated should be followed to have it approved and listed.  Until this has been done, it cannot be treated or considered as such."

That suggests that you have the impression that a place must be "designated" -- that is, included in the National Register of Historic Places -- in order to be considered by a federal agency in its compliance with Section 106 of the National Historic Preservation Act (NHPA).  If you will trouble yourself to check, I think you will find that this has not been true since 1972, when President Nixon in Executive Order 11593 directed all federal agencies to treat places that were eligible for the Register as though they were listed therein.  A few years later Congress underscored this requirement by amending the NHPA to expressly extend consideration under Section 106 to eligible properties.  The pertinent regulations of the Advisory Council on Historic Preservation and National Park Service have reflected this requirement of law ever since; the whole matter is discussed in some detail in several of my textbooks, notably Cultural Resource Laws and Practice (4th edition; Altamira Press 2013: 21-22, 238-9).  The pertinent regulatory requirements to identify and evaluate the eligibility of properties as part of Section 106 review have been upheld by courts on innumerable occasions.

If you are advising the Corps that it need not -- or even, as you suggest, "CANNOT" consider places like Xwe'chi'eXen under Section 106 until and unless someone else goes through the process to have them "designated," you are giving your clients very seriously erroneous advice.  This will lead not only to the destruction of historic properties but to endless litigation and delays to the projects with whose environmental review the Corps is charged.  I encourage you to improve your understanding of the law.  The Advisory Council and the National Preservation Institute, among others, provide training from which you might benefit.

Of course, I’ve received no response.

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