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Swinomish Tribe lawsuit names Oak Harbor and job’s contractors

Swinomish Indian Tribal Community filed a class-action lawsuit this week against the city of Oak Harbor and three contractors over the desecration of an ancient burial ground during the Pioneer Way road-construction project two years ago.

Nobody was surprised at the lawsuit, which came after a $9-million complaint for damages and an offer to settle for $3.9 million and a piece of city property.

However, the lawsuit’s inclusion of the three contractors — Strider Construction, Perteet and KBA — raises questions about their liability for the first time in the ongoing saga.

It also raises another question: Why is the city alone paying for the $4 million, ongoing recovery effort with ratepayer and taxpayer dollars if the contractors are also liable?

The companies signed contracts indemnifying the city.

“We have encouraged the city and its insurance company to bring the contractors and their insurance companies to the table,” said Michael Withey, a Seattle attorney who’s representing the Swinomish.

Jim Gebhardt, president of Strider, said Friday that he wasn’t aware of the lawsuit, but received information earlier relative to the claim for damages. He said the company’s insurance company is investigating the case. He said it “remains to be seen” what the indemnification clause will mean.

Withey has experience with similar cases. He represented Lummi Nation when ancient graves were dug up during a project to expand a sewage treatment plant. The case was settled when Golder Associates agreed to pay $4.25 million to the tribe and the city of Blaine paid $1.3 million.

Withey said he was also involved in a Lower Elwha lawsuit against the state over the grave yard and ancient village unearthed in the 2004 Hood Canal Bridge project. The state settled that case for $11.5 million.

The 30-page lawsuit argues for class action status.

Withey said the 900 members of the tribe would divide any award for emotional damages. The Tribal Community would receive compensatory damages related to actual economic loss. The Washington State Department of Archaeology and Historic Preservation would receive any punitive damages for violations of law.

Withey said emotional damages for tribal members are very real.

“They believe their ancestors are still around and are upset with the current tribal members” for allowing the desecration of their graves, he said.

Withey explained that the Swinomish believe their ancestors aren’t “dead and gone,” but reside in a spiritual world that’s not far removed from everyday life. It’s vital to their beliefs that the bones of their ancestors aren’t removed or scattered.

The lawsuit states that dirt containing human remains was scattered among hundreds of piles, some of which were offered to residents as “free dirt.”

Withey said one resident found a femur in his yard.

The lawsuit begins with the history of the Swinomish people on Whidbey Island. It states that a native village and burial ground was located in the area that’s now downtown Oak Harbor until the native people were forced to leave under a 1855 treaty.

The suit claims the archaeological site is well documented. A 1983 Whidbey News-Times article reported Indian remains were unearthed during Pioneer Way work.

Prior to the 2011 construction, the state Washington State Department of Archaeology and Historic Preservation warned the city about the likelihood of cultural remains and recommended that the city hire an archeologist and create a plan to deal with inadvertent discoveries of cultural materials.

The city promised to follow the recommendation in the State Environmental Policy Act checklist, said the lawsuit.

The recommendations, however, were not followed. The lawsuit claims that email exchanges show that city staff members knew about the Indian burial ground on March 8, 2011, but didn’t take any of the necessary steps.

The project came to a halt on June 16.

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