PORT ANGELES — An impasse over three words in the 2006 Tse-whit-zen settlement agreement is holding up progress on building a curation facility and museum on Marine Drive, federal and tribal officials said.
The agreement — signed by the Lower Elwha Klallam tribe, the city of Port Angeles, the Port of Port Angeles and the state Department of Transportation — brought “positive closure to a difficult and painful experience,” Gov. Chris Gregoire said at the signing ceremony.
The agreement came about as a result of the state Department of Transportation’s failed $100 million Marine Drive graving yard project, during which Tse-whit-zen was uncovered beginning in 2003.
The pact, under which the tribe agreed to settle its lawsuit against the state of Washington over Transportation’s graving yard project, gave $2.5 million to the tribe and $7.5 million each to the city of Port Angeles and Port of Port Angeles.
The tribe also received 10 acres to rebury human remains that had been unearthed during excavation.
The reburials of hundreds of skeletons and other remains have largely been accomplished.
But six years later, more than 67,000 Native American artifacts unearthed from 2003 to 2005 at the ancient Klallam village site — estimated to be some 2,700 years old — still need a permanent home.
Development of a curation facility is at an impasse because the federal Bureau of Indian Affairs won’t provide trust status for the site as long as a “subject to reversion” clause remains in the 2006 settlement agreement and the deed.
Trust status is needed to get grants to build the curation-museum, Lower Elwha Klallam Tribal Chairwoman Frances Charles said last week.
Of the settlement agreement, the tribe has $400,000 left, Charles said.
She doesn’t know how much the design and construction of the facility would cost but knows it will be more than the tribe has, she said.
All four signatories to the agreement would have to agree to deleting the clause.
An environmental assessment of the proposed site for the facility also must be conducted, but state and tribal environmental officials are optimistic the site will pass muster.
The environmental assessment won’t be started until the trust status issue is settled, Charles said.
So, for the time being, the “subject to reversion” clause is front and center.
The problematic three-word penalty clause would — under certain land-use restrictions — return the 10-acre Klallam burial ground at Tse-whit-zen.
Not only is the clause contained in the agreement that governs all 16 acres of the site, it also covers the deed under which the tribe received 10 acres from Transportation for burying hundreds of ancestral remains and six acres the tribe leases from Transportation where the curation-museum facility would be built.
The reversion clause says the burial ground property can be taken away from the tribe and returned to Transportation if the tribe uses the site for more than “cultural and historic preservation.”
The agreement also specifically precludes gaming activities, meaning a casino is not allowed.
Once notified by the state of a land-use violation, the tribe would have 120 days to end the violation.
If the activities are not terminated, “then title to the [tribe’s] parcel shall automatically revert to the state,” according to the settlement agreement.
The reversion clause has had a negative ripple effect on plans for the site, said the BIA and tribal officials.
It’s an impediment to the tribe receiving ultra-protective, reservation-like federal trust status for the burial ground, said Stan Speaks, northwest regional director for the federal Bureau of Indian Affairs.
Under trust status, the parcel “essentially becomes Indian Country under federal law, which means the tribe has more authority there, criminal jurisdiction over Indians there, more regulatory authority,” Charles said.
“We want to get that curation facility, but it gets back to the land issue,” Charles said last week as she walked the village site, once pockmarked with excavated holes, now peacefully covered with grass.
Transportation would continue leasing the six acres to the tribe.
The same land-use restrictions would remain on both parcels if the tribe gains trust status, Speaks said.
But the settlement agreement must “be free of any encumbrance” for the parcel to come under federal jurisdiction, he said.
That means the reversion clause must be taken out of the original agreement, Speaks said.
The reversion clause is contained in the same paragraph of the agreement that says trust status has the “written support” of the signers of the agreement.
“To the extent there is any contradiction within the agreement, there should be no doubt that it was the intent of tribal, state, city and port officials to jointly support the U.S. acquisition of the village in trust for the benefit of the tribe and in turn for the benefit of the entire Port Angeles and Clallam County community,” said Seattle lawyer and Port Angeles High School graduate Gabe Galanda, who negotiated the agreement on behalf of the tribe.
Port Angeles lawyer Trent Crable, who represents the tribe now but didn’t when the agreement was signed, conceded that in hindsight, the wording of the agreement does seem odd.
“No one quite recognized the reversion clause would be so problematic going forward,” he said Friday.
He said past attempts to remove the reversion clause have been resisted by city of Port Angeles and Port of Port Angeles officials.
But a change may be considered.
Port Angeles Mayor Cherie Kidd said last week that discussing the clause’s removal with the rest of the City Council “would be a fair thing to do.”
And state Assistant Attorney General Bryce Brown, chief counsel for Transportation, said the agency is willing to remove the clause.
“If the port and the city are on board, there is no problem,” Brown said.
John Calhoun, port commission president, said Thursday he was reluctant to reopen negotiations on the agreement, even though the port, as a signer of the agreement, supports trust status for Tse-whit-zen.
“It’s the principle of opening that agreement again,” Calhoun said, adding he was worried other signers of the agreement would come forward with more changes.
“It was such a traumatic situation for all parties involved that opening that up and renegotiating that in any way is not very attractive to me,” he said.
But he described his reluctance as not “an absolute.”
Speaks was confident the BIA could overcome that kind of hesitation as the Tse-whit-zen parcel moves closer to gaining federal trust status.
“We will work with him,” Speaks responded.
“We will get it done for the tribe.”
It’s “very possible” the land could achieve trust status by June if the clause issue is resolved and the largely paved leased area of the former logging yard-mill site passes environmental review, Speaks said.
Jeff Sawyer, Transportation’s Olympic Region environmental manager, said the leased area appears to be a good spot for building the curation-museum.
An environmental assessment judged the 10-acre burial area, which contains new fill, as clean enough for residential use, tribal Environmental Coordinator Matt Beirne said Friday.
“I would hope that would mean [the leased site] would be well-suited for developing the facility,” Beirne said.
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Senior Staff Writer Paul Gottlieb can be reached at 360-417-3536 or at paul.gottlieb@peninsuladailynews.com.
