Swinomish seek $9 million in damages from city of Oak Harbor

The discovery of Native American remains halts the Pioneer Way project in 2011. - Justin Burnett / Whidbey News-Times
The discovery of Native American remains halts the Pioneer Way project in 2011.
— image credit: Justin Burnett / Whidbey News-Times

Swinomish Indian Tribal Community is demanding $9 million in damages from the city of Oak Harbor for the desecration of a burial ground.

The tribe filed a complaint for damages with the city Tuesday. The claim accuses city officials of violating law and breaching their legal duty by digging up the known site of an ancient tribal village and burial ground.

The excavation occurred during the 2011 road project on Pioneer Way.

Oak Harbor Mayor Scott Dudley said he is “perplexed” and “disheartened” by the filing of the claim, which is the first step taken before a lawsuit is filed.

Dudley claims Brian Cladoosby, chairman of the Swinomish Tribal Community, assured him that the city didn’t have to worry about a lawsuit as long as ancestral remains were handled appropriately.

“We were operating under the understanding that we would complete the recovery work and the reburial and that would be sufficient,” Dudley said.

“We were under the impression that it would never come to this.”

The city engineer projected that the city will spend $4 million in the ongoing effort to recover the remains and cultural artifacts. Dudley said it could cost as much as another $2 million to rebury the remains in a newly-created cemetery.

Cladoosby said Thursday the tribal community decided to file the lawsuit this week because of the impending statute of limitations. A lawsuit must be filed within two years from the discovery date of June 16, 2011; the claim for damages must be filed 60 days before a lawsuit.

“Hopefully we’ll be able to sit down with the city and come to a settlement in the next 60 days and avoid going to court,” he said.

Cladoosby said he couldn’t discuss details of the impending litigation.

Swinomish isn’t the first tribe to sue over a grave disturbance.

Lummi Nation sued a firm that dug up a site of a former village to put in a wastewater-treatment plant; Golder Associates agreed to pay $4.25 million in damages in 2004, according to the Seattle Times.

Five years ago, the state paid the Lower Elwha Klallam tribe $2.5 million to settle a lawsuit for the Hood Canal Bridge project that disturbed Native American graves.

The Swinomish Tribe’s claim against Oak Harbor seeks $6 million in general damages and $3 million in special damages. It states that the city already reimbursed the tribe $611,000, the amount the city paid the tribe for work performed by spiritual leaders, monitors and handlers at the archaeological site on Pit Road.

The claim also states that members of the Swinomish community sustained and continue to suffer economic losses and “severe stress, anguish, and spiritual and emotional distress.”

The claim includes a brief history of Indians on Whidbey Island.

“For hundreds, if not thousands of years,” the claim states, “a native village and burial ground was located on the shores of Oak Harbor north of Maylor’s Point at a place called Tequcid.”

The Skagit and Swinomish people lived in the permanent village.

Under the terms of a 1855 treaty, the Native American people were required to move to the Swinomish Indians Reservation, “leaving behind generations of their ancestors who were buried there.”

The claim argues that the location of the ancient village and burial ground in the area of what is now downtown Oak Harbor was well known. The site was documented by archaeologists in the 1920s and the 1950s; it was formally registered as a state archaeological site in 1953. In 1983, the Whidbey News-Times published photos of Native American remains being removed during construction work on SE Pioneer Way.

The city’s big construction project Pioneer Way, which turned the road into a one-way street, began in 2011.

An official from the state Department of Archaeology and Historic Preservation, known as DAHP, warned the city staff prior to construction about the “close proximity” of the archaeological site.

DAHP “strongly recommended” that the city “retain the services of a professional archaeologist to monitor and report on ground disturbing activity along SE Pioneer Way ‚Ķ and help develop and implement an Inadvertent Discovery Plan for cultural materials.”

City officials conceded employees overlooked the warning.

The roadwork came to an abrupt halt on June 16 as a worker discovered human remains in the earth beneath the street.

The city hired an archaeological firm to help with the complex process of dealing with inadvertent discoveries of cultural materials. It turned out that a great deal of dirt was moved from the site and dumped at a gravel pit on Pit Road, the old city shop, three private residences and an environmental clean-up site in Everett.

At the urging of the tribe, the city hired a firm and Swinomish workers to sift through all the dirt.

“The excavated and removed materials contained numerous Indian burials, thousands or prehistoric and historic artifacts and fragments, and other archaeological resources,” the claim states.

The Swinomish claim city employees treated the sacred burial ground with “callous disrespect.”

“As a result of the city’s actions, one of the Tribe’s ancient villages and burial grounds has been partially destroyed and permanently desecrated,” the claim alleges. “Many of the Tribe’s ancestors have been dug up from their final resting places (often by backhoes or other heavy machinery), broken apart, separated from the family members and precious grave good with which they were laid to rest in sacred ceremonies.”

Dudley said the Swinomish wanted all the dirt which was removed from Pioneer Way to be buried together with the human remains and cultural artifacts. He proposed accommodating the request by turning the site of the old city shop into a new cemetery.

Discovery of the Native American remains occurred under former Mayor Jim Slowik. Dudley, who was a councilman at the time, was very critical of the administration and argued that the archaeological warnings were ignored in order to push through the controversial project as quickly as possible.

While admitting mistakes were made, Dudley said city officials did everything in their power to rectify the situation.

The city is currently creating a cultural resources plan and may hire an on-staff archaeologist as the giant wastewater treatment facility project moves closer, he said.

“We’re getting prepared to ensure this never, ever happens again.”


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