Lummi Nation requests emergency injunction to recover disturbed remains
Lummi Nation filed a motion for an emergency injunction in federal court on Thursday requesting a judge to halt construction by Whidbey Telecom that the Nation alleges has disturbed ancestral remains.
The initial lawsuit was filed April 28 against Whatcom County, Whidbey Telecom, the U.S. Department of Agriculture and the U.S. Department of Commerce over allegations that a series of federally funded construction projects repeatedly cut through known burial grounds at Point Roberts.
The court order requested by Lummi Nation would force Whidbey Telecom to pause construction and require the developer and county to give Lummi Nation full access to the sites to document damage and recover and rebury ancestors.
“The new evidence we provide the court today makes clear that the harm is not hypothetical or historical — it is ongoing,” Lummi Nation Chairman Anthony Hillaire said in a statement. “Each day that passes without intervention risks the permanent loss of Lummi ancestors and the Tribe’s ability to fulfill our sacred obligations.”
Whidbey Telecom dug trenches at known archaeological sites, according to the initial lawsuit, destroying and disturbing remains. Lummi Nation learned basic information about the destruction in mid-2023 and “repeatedly” warned Whidbey Telecom about the damage to burial grounds.
Many of the new documents submitted to the court are under seal to prevent possible looting by revealing “sensitive site locations.” However, some are still publicly available, including a sworn declaration from archaeologist Robert Whitlam in support of the preliminary injunction.
Whitlam wrote that since 2023, while he was serving as state archaeologist for the Washington Department Archaeology and Historic Preservation, he was actively involved in trying to bring Whidbey Telecom’s construction projects at Point Roberts into compliance with local, state and federal law.
He said he repeatedly recommended a comprehensive damage assessment of the construction sites, and a preliminary report of an incomplete damage assessment was produced in August 2024. It reported that 17 fragments of human remains and 1,194 artifacts — including those commonly found in burials — at the site, according to court documents.
Tribal Historic Preservation Officer Lena Tso wrote in her sworn declaration about similar difficulties getting information about the construction projects and the alleged damage to ancestral remains. She compared the disturbances to one’s child suddenly going missing, and not knowing whether they’ve been hurt or where they are.
A disturbance has the same effect on Tribal people and communities, differing only because some feel it directly, and others feel it indirectly, but everyone experiences the feeling that someone, a family member, is missing,” Tso said. “Tribal people have long memory and deep connection to our ancestors, because we still sing their songs, dance their dances, and carry their names and responsibilities with us.”
Greg Werkheiser of Cultural Heritage Partners, PLLC, counsel for Lummi Nation, said it’s possible that hundreds of remains may have been damaged by the construction. He also said Whatcom County admitted in writing that it “repeatedly failed” to properly use a software program that warns against issuing permits for digging near known archaeological sites.
“As terrible as the known facts are, we know even worse revelations are yet to come, and only when compelled by a court,” Werkheiser said in a statement. “The Nation must place its faith in the judiciary because it has been unable to trust the defendants.”
As of Thursday afternoon, none of the defendants had responded to the court summons.
Whatcom County officials said that as a policy they do not comment on pending litigation. Whidbey Telecom did not respond to requests for comment.