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Court to decide damages in '99 grave desecration

SEATTLE - The Lummi Nation and an engineering firm are headed to U.S. District Court over the desecration of ancient human remains.

The case stems from the City of Blaine's excavation for a wastewater treatment plant in 1999 on Semiahmoo Spit, where many Lummi Indians claim their ancestors lived.

Blaine hired Udilhoven General to do the excavation and Golder Associates to monitor the work. Udilhoven, however, was not sued.

U.S. District Court ruled in December that Golder violated an agreement by which it would stop excavation and notify tribal, state and federal authorities if human remains were discovered during excavation.

The court ruled that Golder transported remains to its office in Denver, without notifying the tribe, and removed more than 13,500 cubic meters of "cultural deposits" - soil from the site - to other locations, including a landfill in the Blaine area.

In January, the court will determine compensatory emotional distress and punitive damages.

"The removed materials contain thousands of ancestral remains that the archaeologists failed to recognize or simply ignored," Lummi historic preservation officer Isaac Blum and consultant Mary Rossi wrote in a summary of events for the Lummi Nation.

Only a small number of the ancestral remains found during excavation were delivered, the nation reported.

"If they (the Lummi) had been notified (about the other findings), it would have done everything in its power to shut this (project) down," said Judy Bush, attorney for the Lummi.

Aaron Thomas, Lummi public affairs director, said the tribe was notified by a construction company employee that human remains had been removed from the site. Former Udilhoven General President Barry Dunn, whose company was hired by Blaine to do the excavation, doubted Thomas was notified by one of his employees.

On Aug. 5, 1999 - one month after construction began - the U.S. Department of Agriculture's Rural Development office issued a "Stop Work Order." USDA was the lead agency because it had funded the project.

Lummi first sued Blaine for $40 million; the lawsuit was settled when Blaine agreed to move its wastewater treatment plant and pay $1.25 million.

According to the summary by Blum and Rossi, in February 2000, human remains from one and a half burials were recovered from the property of Freeman Trucking, where 50 cubic meters of dirt had been taken during construction. Freeman had been hired to haul dirt from Semiahmoo Spit. Freeman was closed after the discovery.

The Lummi saw this recovery as evidence that entire burials may have been missed during monitoring of construction. They filed a grievance with the Register of Professional Archeologists; that grievance will be heard by the Register of Professional Archeologists in July.

On July 2, 2001, the tribe sued Golder for violating the state Indian Graves and Records Act and for breach of contract and asked for compensatory emotional distress and punitive damages.

On Nov. 10, 2001, the Lummi reinterred 60 remains in the first reburial ceremony at Semiahmoo.

On Jan. 2, 2002, the tribe and Blaine began collaborating on the Northwest Whatcom County Wastewater Management Plan and Semiahmah Restoration and Memorial Project. Both are seeking federal money to "ensure the recovery and reburial of ancestral remains, a regional wastewater solution, and the protection of the local environment."

On Dec. 2, the U.S. District Court ruled that Golder had breached its contract and violated the state Indian Graves and Records Act.

As of March, 27 percent of the total volume of cultural deposits had been sifted by the Lummi Nation, according to Blum and Rossi. More than 3,600 human bone fragments, varying in size and condition, and more than 1,000 artifacts had been recovered by Lummi workers.

Thomas said many of the remains appeared to have been crushed by construction equipment. Carbon dating placed some of the remains at between 3,000 and 5,000 years old according to Steve Kinley, a recovery team leader.

Unaware of remains

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Golder attorney Michael J. Bond said Golder and Udilhoven did not know remains were contained in the soil that had been hauled away from Semiahmoo.

Bond said Semiahmoo was a known archeological site and that Golder was hired by Blaine to "gather information about the site" to establish a historical record "before the site was destroyed" by the excavation.

"Previous archeological work showed evidence of human habitation there," Bond said. Golder's carbon dating shows the age of remains to be between 500 and 3,500 years old. He estimates remains from six individuals were removed from Semiahmoo.

After the initial data collection was completed, Golder archeologist Gordon Tucker monitored the excavation.

"We were totally at his control," Dunn said of Tucker's presence at the excavation site. "If he saw anything, he would stop the excavation, and collect and bag what he found." Dunn described some of the remains as "bits and pieces."

Bond said Lummi did not respond to invitations to monitor excavation, and "responded occasionally and infrequently" to other communications.

Bond claims Tucker notified the Lummi Nation about his findings of remains, but admitted that Tucker "didn't notify Lummi for several days" about one finding. He said Golder and Tucker sent letters of apology to Lummi, to which Lummi responded with a claim for damages.

"If Lummi were present during construction, there would be no claim," he said.

Seeking accountability

Thomas said the desecration sparks painful, emotional responses from the Lummi people, one-third of whom claim Semiahmah ancestry.

According to Blum and Rossi, Lummi's "desired outcome is to complete the recovery effort, rebury (its) ancestors, restore the site area, improve water quality in the area." Lummi is also taking steps to ensure no other tribe is faced with gravesite desecration.

"Lummi continues to seek accountability at the federal level in terms of trust responsibilities, and compliance and enforcement of federal policies related to cultural resource protection," Blum and Rossi wrote.

In October 1999, the National Congress of American Indians wrote a resolution calling for laws that "create equal treatment concerning Indian graves, cemeteries, burials, burial sites or areas."

In the resolution, the Lummi Nation protested "unfair and unequal laws which give a lower degree of protection to Indian graves than is given to non-Indian cemeteries."

The National Congress agreed, saying federal, state and local laws do not provide "the protection, preservation, and proper respect that our ancestors need or require.

"? the National Antiquities (Act) do(es) not adequately require projects that remove or desecrate Indian graves, cairns or traditional cultural properties to clearly access, identify and equally view such properties."

The resolution added, "?it is vitally important to future Lummi generations that the Lummi Indian Nation does not lose its unique and historic identity and one way to preserve this cultural identity is to maintain its oral history, oral language, specified written interpretation of Lummi Language and of its traditional area called Tsi-li-tch, the area where the treatment plant disturbed the ancestral remains."

Thomas said Semiahmah Memorial Heritage Park will open at Semiahmoo within the next two years. "We can educate a lot of people about the wrong that was committed there," he said.

Kinley, whose great-grandfather lived on Semiahmoo Spit, said the Lummis feel an obligation to their ancestors to ensure such desecration doesn't happen anywhere.

"The old people sacrificed themselves so this doesn't happen again," Kinley said. "We are responsible for the execution of such a message."

Richard Walker is a correspondent reporting from San Juan Island, Wash. Contact him at