Sovereignty at Sandy Point

Proposed dredging and active home development at Sandy Point on the Lummi Nation Reservation threatens more than the beaches and the animals who call them home.

Large groups of various birds including Seagulls, Great Blue Heron and Canada Geese sit on the shores of Sandy Point, Wash., under the watchful eye of the NGPE signs on May 10, 2024. The land protected by these signs is under threat from increased development. // Photo by Ben Stainbrook

Story by Jules Robichaux // Photos by Ben Stainbrook

June 13, 2024

The Lhaq'temish, or Lummi people, have lived in what is now Washington state since time immemorial. They continue to protect the lands and waterways of their treaty-protected territory. 

Before the arrival of settlers in the 1800s, the Lummi ancestral homeland was a large swath of land that included the San Juan Islands, and later encompassed territory further east along the lower Nooksack River.  Now, the Lummi Nation manages around 13,000 acres of tidelands.

Part of those lands include Sandy Point, a spit that reaches out into Lummi Bay. Spits like Sandy Point grow longer over millennia as sand along coastlines is gradually deposited by waves. 

The Lummi have fished and clammed at Sandy Point since time immemorial. But alleged misuse of Sandy Point by private developers has found both parties locked in legal conflict since the 1960s. The conflict pits the owners of a large swath of shorefront homes built inside the reservation against the Lummi and their efforts to regain control over their ancestral territory.

Typically, land inside reservations is a checkerboard of different ownership statuses that reflect decades of changes in U.S. policy towards Native Americans. The Lummi Reservation is held in trust by the United States government. Other land within the reservation is fee simple land, meaning that the federal government deeded sections of traditional homelands to individual Lummi Nation members that could keep or sell the land. 

Parts of Sandy Point were first leased to the Sandy Point Improvement Company (SPIC) by the federal government for the tribe in 1965. One lease covered access to Sandy Point’s tidelands, referring to the beaches of the spit. The other lease covered a future entrance channel to be dug through the spit. Other land on Sandy Point was bought outright over time, and is now owned by the SPIC or its affiliated residents. 

It’s unclear under what circumstances Sandy Point was first leased to the SPIC. Henry Cagey, a senior council member of the Lummi Indian Business Council (LIBC), explained that a fire wiped out government records that contained the relevant meeting minutes. The LIBC acts as the governing body of the Lummi Nation and considers Sandy Point a priority, according to Tim Ballew, head of the LIBC in 1999. 

While the original lease was to dig a channel 200 feet across, the initial excavation was approximately 400 feet wide.This concerned the LIBC due to the potential biological and geological degradation of the land.

“I am not in favor of the dredge myself,” Ballew said, adding that the SPIC did nothing to ease LIBC concerns.

Excavating sediments can cause a myriad of issues for the species that call an area home. A geologic review of Sandy Point written by the environmental consulting firm Coastal Geologic Services in 1999 revealed a cease to natural growth of the spit, accelerated erosion of the beaches and habitat destruction.

Surf smelt and sand lance are two kinds of fish that once laid their eggs on the fine-grained beaches of Sandy Point. But construction of the channel resulted in the sand becoming too pebbly for the fish to lay their eggs according to the geologic review. Both species feed Chinook salmon and seabirds.

Sediments have accumulated where the channel opens to the ocean. The SPIC has aimed to dredge the channel of sediments for decades, despite the potential destruction of shellfish and eelgrass habitat, according to Ballew. 

Whatcom County approved the dredging process in 2017, but the Lummi Nation appealed the decision. The SPIC and LIBC had been negotiating a settlement agreement for years, but the Lummi Nation is no longer willing to negotiate, according to an update from the SPIC last month. 

The SPIC are  dredging the entrance to the channel to ensure boat access, according to Ballew. 

The SPIC did not respond to repeated attempts to contact them. 

“[Dredging] is going to cause a problem for everything, not just fish, not just shellfish,” Ballew said.

Cagey listed other animals impacted by the tideland's development including crabs, clams, ducks and oysters. Brant, a kind of small goose, have also shifted their habitats northward away from Sandy Point. 

A Lacking Lease

Between 1971 and 1993, the SPIC sold plots of land with well water access without having legal rights to the Lummi Nation’s aquifer, according to Lummi Nation documents. Some 770 homes were developed with water access during this time.

In 1985, a reappraisal of the tidelands lease concluded it was worth $186,000 per year, almost 25 times the $7,500 the SPIC had paid in rent the previous year.

Such reappraisals were part of the original contract and expected to occur every five years. The SPIC paid the LIBC $186,000 per year for tidelands access until their lease expired in 1988. 

At the same time, the channel lease was reappraised in value at almost $150,000, but no rent increase was ever applied. The SPIC paid only $2,000 per year until the lease expired in 1988. 

After 1988, the SPIC refused to negotiate a new lease, claiming that the residents of Sandy Point no longer used the tidelands. Documents from the Lummi Nation claim otherwise, stating that SPIC homes have direct access to the beaches and that residents use the channel. 

In the ’90s and into the early 2000s, Lummi boats were prevented from using the channel, including in emergencies when boats needed harbor, according to Cagey. Lummi Nation members were also prevented from accessing the Sandy Point tidelands.

“People were arrested, people were cited for trespassing, they were kicked out of that area,” Cagey said.

Ballew also recalled multiple instances during his time as a Lummi commercial fisherman where SPIC-affiliated residents accused him of trespassing on Sandy Point.

“It wasn’t the first time. It’s probably not going to be the last time,” Ballew said. 

No new leases have been agreed upon since their expiration almost 40 years ago. However, the SPIC has continued to use and develop Sandy Point without paying rent for the tidelands or the channel, according to Cagey. 

Sandy Point, as seen in 1943 (left), 1966 (middle), and 1975 (right) // Photos courtesty of Whatcom County Public Works [archival], https://wacds.maps.arcgis.com/apps/webappviewer/index.html?id=071f9238f7ff42c8b70cb9e5ed08d0a5

Had the SPIC secured new leases in 1988 at their reappraised rent values, the cost of rent would have totaled over $12 million.

Windermere Property Management signs line Saltspring Drive at the tip of Sandy Point, Wash., on May 10, 2024. Photo by Ben Stainbrook

To dredge or not to dredge

A decade after the lease expired, Cagey submitted an application to the U.S. Army Corps of Engineers to block the channel on behalf of the Lummi Nation. They hoped the immediate action, in addition to rehabilitation efforts from Nation members, would eventually reverse the physical and biological impacts on the spit.

“If the Sandy Point Improvement Company is unwilling to pay for use of our property, then the property will be put to a use that benefits tribal interests,” Cagey wrote in a 1998 letter. 

At the same time, the SPIC petitioned the Corps to dig the channel deeper after sediment accumulation had made the channel shallower. The SPIC argued that for the channel to remain navigable it would require maintenance. 

The Corps could not legally block the channel on behalf of the LIBC, according to the SPIC. As navigable waters, or coastal areas that are deep and wide enough for the safe passage of vessels, the channel is protected by the U.S. Rivers and Harbors Act. 

Corps officials were also unable to dredge the channel deeper, as the Lummi Nation cited treaty-protected fishing rights that would be violated by dredging efforts.

Without dredging, the channel will likely become unusable for boats as sediment continues to accumulate, according to Cagey.

Development continues on Sandy Point. Large portions of mudflats, or the land that lies between the coasts of the spit, are also up for sale. 

As the LIBC continues to negotiate with the SPIC over leases, tensions remain between Lummi Nation members and the SPIC-affiliated residents of Sandy Point. 

“Residents up there feel that that’s their tidelands and that we [Lummi Nation members] have no right to walk on the beach or use the beach for our needs,” Cagey said.

Jules Robichaux is a junior environmental science student at Western with a background in narrative journalism.

Ben Stainbrook is a third-year Visual Journalism student at Western, passionate about music and documenting the world.