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Treaty trumps all

Northwest coal-to-China port hits a major snag

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In 1832, when Supreme Court Chief Justice John Marshall was pondering the fate of Baptist missionary Samuel Worcester, who’d been jailed by Georgia state militia for preaching the Christian gospel to Cherokee Indians, little did Marshall know that his ruling would one day reroute rivers, legalize hundreds of Indian casinos from coast to coast and derail a $242 million coal-to-China project on the Columbia River in the 21st century.

Worcester had been jailed for challenging Georgia authorities with a question that went to the heart of the conflict between states and the federal government. He dared to ask: Are treaties with Indian tribes the “supreme law of the land?” If so, how could the governor of a state deny Worcester’s right to preach to the Indians?

Justice Marshall, as they like to say in Indian Country, was a man with “long eyes.” Daniel Webster once quipped that Marshall’s brain could sever any legal knot it encountered, and the knot presented by Worcester v. Georgia had been vexing the chief justice for three decades.

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He, more clearly than anyone in early America, realized that the founders left a gaping hole in the U.S. Constitution when they neglected to address the role of sovereign Native American governments in the scheme of federalism. Worcester, at last, was the right case to patch that hole. If he could make the patch stick and give it some elasticity, this case would have profound implications in years to come for the rapidly evolving, semi-United, States of America.

Eventually, Marshall’s distant future became our present. This September, when the Oregon Department of State Lands denied a dock permit to Ambre Energy, an Australian company, Marshall’s federalism patch not only stretched in every direction, it held firm. Ambre had been hoping to build a new coal port near the town of Umatilla to export 8.8 million tons of coal annually to China. But its ambitious plans posed a clear and present threat to recovery efforts for endangered salmon in critical Columbia River habitat protected by treaties with Columbia River tribes. Therein lay the reeds of contention.

“Salmon tribes” in the Pacific Northwest were united in opposition to the deal, and that trumped all of Ambre Energy’s rhetoric about creating jobs and future profits. What John Marshall made inviolate in Worcester v. Georgia was this: In any contest between treaty rights and states’ rights, treaty rights must prevail.

The Oregon Department of Lands did not cite Worcester v. Georgia in rejecting the coal-port proposal, but Marshall’s ghost was present in the room when the decision was announced. As Marshall told the Georgia governor who ordered Samuel Worcester’s arrest 182 years ago for preaching to the Indians, sovereign-to-sovereign negotiations are protected by Article VI, Clause 2, of the Constitution, as “the supreme law of the land.” Therefore, no state or corporate power has the legal authority to violate provisions of treaty agreements once the agreements have been ratified by the federal government.

The effort to ship coal out of Northwest ports was born out of hubris and miscalculation. Company attorneys either ignored, or misjudged, the long shadow of Worcester. Preferring to go mano-a-mano with environmental organizations, they suddenly found themselves face-to-face with treaty tribes.

After reading more than 20,000 public comments and carefully analyzing technical documents, the Oregon Department of Lands announced that its decision to kill the project “at the Coyote Island Terminal ... is the right one.” And treaty rights played a pivotal role in the outcome of this contest.

The state’s decision sent shock waves through the industry. Coal producers had launched their coal-to-China campaign with seven likely ports on the West Coast, and to paraphrase Mark Twain, the industry approached the deal “with the calm confidence of a Christian holding four aces.”

Now, the coal companies are down to two choices—the Gateway Pacific Terminal at Cherry Point, north of Bellingham, Wash., and the Millennium Terminal at Longview, Wash.—and suddenly, 19th century energy solutions are faced with daunting legal and public relations challenges in the 21st. Rep. Reuven Carlyle, D-Seattle, summarized the emerging politics of coal: “You can’t privatize benefits (for the coal industry) and socialize the costs (pollution, climate change, and an extinct fishery).”

The media summed up the decision as “Coal-to-China project gets nixed.” But a more accurate storyline might have read: “Treaty rights prevail, tribal sovereignty honored in coal port decision.”

Of course, no one in the media mentioned John Marshall, or Worcester v. Georgia, or the long-standing sanctity of the trust relationships between Indian nations and the federal government. People seldom do. But Marshall was there in the shadows, a faint smile bracketing his piercing black eyes.

Paul VanDevelder is a contributor to Writers on the Range, a column service of High Country News (hcn.org). His book, Savages and Scoundrels (Yale University Press), documents the role of treaties in the formation of the United States. He lives in Portland, Ore.

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