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Sunday, December 10, 2023 | Back issues
Courthouse News Service Courthouse News Service

Tribe Outraged at City’s ‘Free Dirt’ Offer

SEATTLE (CN) - The Swinomish Tribe sued the Seattle suburb of Oak Harbor, claiming it refused to stop a road project after uncovering a burial ground and outrageously offered the excavated soil, filled with bones and grave goods, as "free dirt."

The Swinomish Indian Tribal Community filed the federal class action against Oak Harbor and three construction firms: Strider Construction Co., Perteet Inc. and KBA Inc.

The federally recognized tribe in Skagit County has just under 3,000 members. Their historical lands include areas near the San Juan Islands, including tourist mecca Whidbey Island.

Oak Harbor has a population of 23,000.

The tribe claims the defendants offered the "free dirt" for landscaping projects, though state law requires stopping construction if grave goods or remains are found. But the city has a "financial incentive" to complete the project, according to the complaint.

The tribe claims that city officials knew the road project would traverse the site of an ancient village that had existed "for hundreds if not thousands of years."

The Swinomish left the village, called Tequcid, to move to their reservation in 1855, "leaving behind generations of their ancestors who were buried there," according to the complaint.

"The location and nature of Tequcid is well known and well documented," the complaint states. "Archaeologists or anthropologists documented the village and burial ground in the 1920s, 1950s, and 1980s. In 1953, the site was formally registered as a state archaeological site. In 1988, an updated state archaeological site form was prepared. Firsthand or press accounts of the presence of Indian burials at the site were made in the 1850s, 1910s, 1920s, 1940s, 1960s, and 1980s. In 1983, the Whidbey News Times published pictures of Indian burials being removed from the site after construction work along SE Pioneer Way had disturbed them."

The city began road improvements at the site in 2008 and consulted with the Washington Department of Archaeology and Historic Preservation (DAHP) before construction.

The tribe says DAHP presented a long list of recommendations the city should follow to assure that no burial remains or cultural artifacts were damaged, and that officials agreed to hire an on-site archaeologist who would monitor activities and consult with the tribe.

But the city reneged to save money, the trice claims.

"Defendants knew that if human remains or cultural or archaeological resources were discovered, the project would likely be shut down at a considerable financial loss to the defendants. This knowledge gave the defendants a financial incentive not to employ an archeologist at the site to ascertain the presence of shell midden, burial artifacts and human remains there prior to large scale construction and digging activities," the complaint states.

Major demolition at the site started March 7, 2011 and the next day the city engineer reported encountering a "native burial ground."

Instead of stopping work, as contractually and legally required, workers continued to "uncover, remove, and desecrate human remains, artifacts, and other sacred cultural resources associated with plaintiffs' ancestral burials," the complaint states.

The tribe says it was not notified of the discovery of remains and neither were the coroner or law enforcement, until June 16, 2011. Several days later, the DAHP ordered the city to stop work. By then, the excavated dirt had been removed to various locations, including a dump site.

"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 goods with which they were laid to rest in sacred ceremonies, and scattered among hundreds of piles of 'dirt' the City took to its 'disposal sites,' which are or were unsecured and exposed to the elements. Some of the 'dirt' was advertised by the City as 'free dirt' and delivered to private landowners for use in landscaping projects. Other ancestors laid exposed in the middle of a road in downtown Oak Harbor for weeks, next to passing traffic during the day and directly in front of a busy tavern at night," the complaint state.

Since then, tribal members have been working "daily with the broken remains of their ancestors, have had to hire a coffin maker to make new cedar boxes in which to reinter their ancestors, and have had to consider acquiring land suitable for reburial," according to the complaint.

The tribe seeks damages for violation of Washington's Indian Graves and Records Act, breach of contract, violation of the Shoreline Management Act, negligence, tortious interference with a dead body and emotional distress and outrage.

They are represented by Michael Withey.

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