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Washington tribe sues to rebury hundreds of ancestors
Monday, August 15, 2005

A Washington tribe whose ancestors were removed from an historic cemetery filed suit against the state on Friday, demanding that the remains be reburied.

The Lower Elwha Klallam Tribe said the lawsuit was not an attempt to break negotiations with the state over the Tse-whit-zen Village. The two sides have been trying to come to an agreement about the future of site, considered one of the most important in the Pacific Northwest.

Instead, Chairwoman Frances Charles said the tribe brought the case because the statute of limitations in a law protecting Indian graves was about to run out. "The clock was running and we did what we had to, to protect our rights," Charles said in a statement.

Charles, however, noted that the talks with the state "weren't getting anywhere." "We never expected that the state would have this much trouble returning burials to a cemetery," she said.

In the lawsuit, the tribe cites the state Indian Graves and Records Act. Under the law, tribal attorneys say the state is responsible for all damages to the cemetery, including the removal and destruction of tribal ancestors, artifacts and other materials.

In total, the tribe says at least 335 ancestors were removed from the cemetery and placed in coffins that are currently being held by the state. More than 2,000 truckloads of material that were taken to a landfill should be returned to the site, the tribe adds.

The Tse-whit-zen Village became the focus of controversy last year when the state halted work at the site as part of a $275 million construction project. By that time, hundreds of remains and tens of thousands of artifacts had already been uncovered.

Tribal members had been working with state archaeologists to excavate the village in Port Angeles. But the effort took an extremely high emotional and spiritual toll on the tribe, whose leaders were frustrated that the state chose the site despite knowing it was home to Klallam ancestors for more than 1,700 years.

"This case proves the adage that history repeats itself," the tribe's complaint in Thurston County Superior Court states. In the early 1900s, tribal ancestors were removed and used as landfill during the construction of a mill at the village.

The tribe's stance has been supported by other Washington tribe and the Affiliated Tribes of Northwest Indians. Just last week, representatives of dozens of tribes from Washington, Alaska, Oregon and Canada came to Tse-whit-zen Village for the annual Canoe Journey.

Some local officials in Port Angeles, however, have been upset about the loss of jobs associated with the construction. They blame Gov. Christine Gregoire, a Democrat, for stopping the work. The $275 million Hood Canal Bridge project will go on as planned, but without the use of Tse-whit-zen Village as a docking site on Port Angeles.

The tribe isn't the first to use the Indian Graves and Records Act. The Lummi Nation filed suit under the law for the destruction of a tribal cemetery in 1999. A $4.25 million settlement was reached in April 2004 to pay for the reburial of tribal ancestors and for damages to individual tribal families.

The Lower Elwha Klallam Tribe's lawsuit was filed on behalf of the tribe and on behalf of individual tribal members. The tribe wants the case treated as a class action in order to determine what damages may be owed.

In a separate August 10 letter, an attorney for the tribe said the state must bear all the costs associated with the reburial and not ask the tribe to seek federal appropriations or use its own money. The tribe wants the state to enter into an agreement under the National Historic Preservation Act to protect the Tse-whit-zen Village.

The 9th Circuit Court of Appeals, which includes Washington, ruled on August 9 that the law doesn't include a private right of action for tribes to sue for desecration of sacred sites, burial grounds and other important places.

Tribal Complaint:
Lower Elwha Klallam Tribe v. Washington (August 12, 2005)

Relevant Laws:
Indian Graves and Records Act (State of Washington)

Relevant Links:
Tse-Whit-Zen Village News - http://tse-whit-zen.elwha.nsn.us
Lower Elwha Klallam Tribe - http://www.elwha.org
Washington State Department of Transportation - http://www.wsdot.wa.gov