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Tribal Rights and development: Understanding Corps of Engineers’ requirements

Updated: Jun 5, 2020

D&A Senior Advisor John Eisenhauer

D&A Senior Advisor John Eisenhauer

This week, the Seattle District of the Army Corps of Engineers rejected a bid by Pacific International Holdings to build a coal-export terminal near Bellingham, WA. The Corps upheld a claim by the local Lummi Tribe that the $700 million project would have a greater than de minimis impact on its Cherry Point treaty fishing rights, which the Tribe reserved in an 1855 treaty with the U.S. Government.

Monday’s decision, announced by Col. John Buck, Seattle District Commander, sparked immediate and angry attacks against the Corps, including several from elected officials.

This case brings to mind a few important aspects of Corps operations, in particular when dealing with U.S. Government treaties involving Native American Tribes:

  1. As Commander of the Corps’ Portland District from 2011-2013, I sympathize with Col. Buck’s situation. I had to deal with these same issues, and they’re never easy. It’s certain that no matter how you rule, someone will not be pleased with your decision.

  2. Several accusers, including elected officials, have claimed that the Corps’ decision was “political.” Unfortunately, this misreads the real issue. Once the Corps determined a greater than de minimis impact to Lummi treaty rights, the Corps had no choice but to reject the proposal, in keeping with Article 6 of the U.S. Constitution (“…all treaties made [under U.S. authority] shall be the supreme law of the land….”)

  3. This legal status undercuts claims by several project advocates that the Corps should have continued its work on the plan’s Environmental Impact Statement (EIS) and finished the National Environmental Policy Act (NEPA) process. Because Corps determined that the project interfered with U.S. treaty obligations, the results of these two processes became immaterial. The permit application had to be denied. It would be a waste of taxpayer resources to finalize a process that had no impact on the final outcome.

  4. The Corps’ decision is an important lesson for anyone proposing a project that might impact Tribal treaty rights. Early on, proponents are well-advised to identify potential Tribal rights issues and open a dialogue. This can identify levels of support, build trust and often mitigate Tribal opposition, though compromise.

  5. Pacific Northwest Tribes are very watchful over their treaty rights, which they see as granted by their Creator. Tribes rarely expose their reserved rights to litigation, so if a Tribe is willing to do so, it likely has a solid record to support its claims and is likely to prevail. Likewise, the Corps has an exhaustive process for determining whether a project’s impact meets the de minimis treaty threshold.

John Eisenhauer Senior Advisor

A member of the Dawson team since 2014, John Eisenhauer was the 59th Commander and District Engineer of the Army Corps of Engineers Portland District.


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