Tribes, community groups push back against "move toward cultural erasure"
SEATTLE — Attorney General Bob Ferguson and a legal coalition of 40 tribes, states, and community organizations filed a motion late yesterday for preliminary injunction to halt the federal government’s planned sale of the National Archives building in Seattle. The motion includes 586 pages of declarations from tribal officials, heads of community organizations and historians from across the Pacific Northwest and Alaska. The 79 declarations include deeply personal stories of connection to the archives and statements of outrage against "cultural erasure."
The motion, filed before Judge John Coughenour in the U.S. District Court for the Western District of Washington, seeks an immediate court order blocking the sale. Ferguson asserts that federal agencies failed to comply with the legal requirements for such a sale. If the building is sold, the federal government plans to move its un-digitized records over a thousand miles away to facilities in Southern California and Missouri.
“The bureaucrats at these federal agencies never bothered trying to understand how selling this building would impact our region and our heritage,” Ferguson said. “Congress never intended research facilities like the National Archives to be eligible for expedited sale. The personal stories detailed in the declarations we filed provide overwhelming evidence that this facility should not be lumped in with abandoned warehouses in an expedited sale with no public process.”
The Archives building in Seattle hosts original and un-digitized tribal and treaty records, as well as Chinese Exclusion Act case files and records regarding the internment of Japanese Americans during World War II. The records are invaluable resources for researchers, historians and individuals seeking information about their family history or heritage.
“Removing a sacred photo album”
The motion before Judge Coughenour is supported by 79 declarations affirming the Archive’s profound importance to communities in this region.
Here are a few examples that show the breadth of the concern about the sale:
- A member of the Klamath Tribes and history teacher wrote: “The relocation of the Archives away from the Pacific Northwest would be equivalent to someone removing a sacred photo album that has been passed down through generations from one's home. It does not mean that the family photo album would not be safe, but it would no longer be accessible to enjoy and share among the family. The chance to come together and look at the album and hear stories and learn collectively would be lost.”
- An enrolled Tlingit tribal member began researching in 2015 and wrote, “I opened the file and looked. Tears came, for I was staring into my father's face. He was 23, about to go volunteer in China with the Chinese Air Force, and become a mechanic for the Flying Tigers. This was 2015, just before Father's Day, 100 years since his birth, and 50 years since he had died.”
- Cathy Lee, the president of the Chinese American Citizens Alliance of Seattle wrote about volunteers’ efforts to index the Chinese Exclusion Act files, “There are still thousands of files to review. If the Chinese Exclusion Act records were moved elsewhere, this effort to preserve and index the Chinese Exclusion Act files is at serious risk of never being completed.”
- Delano Saluskin, chairman of the Yakama Nation, wrote that the Archives became a key tool in legal challenges regarding the Yakama Nation’s land ownership: “Enrolled Yakama Members researching their ancestors and their lands will have to overcome significant financial hurdles to access their records into the future. Given the United States' significant record management failures in the past, we are concerned that the transfer of these records will result in further misplaced Yakama Nation documents that may never be found again.”
- Donald Gentry, chairman of the Klamath Tribes, wrote the archives contain the culture of his tribe along with records and documents: “Our way of life goes beyond just the physical world we live in and interact with, beyond our reservation, water, and natural resources. We need access to our songs and ceremonies to reconnect with our traditions, our ancestors, our way of life, and the world around us.”
- Brian Carter, the executive director of 4Culture, a Seattle non-profit that organizes programs to study cultural history in King County, wrote: “As the largest public cultural funding agency in the State with a stated commitment to racial equity, we oppose this move toward cultural erasure, especially for communities whose histories are the most suppressed and least documented and interpreted.”
- Marcellus Turner, chief librarian for the Seattle Public Library, wrote, “People from marginalized groups who are not well-resourced will be further marginalized as they will not be able to afford travel expenses or, barring that, research or copy fees. For others — students, new media, authors, professor and amateur historians, genealogists, etc. — removal of these records to a distant region will have a chilling effect on research and, therefore, on our collective ability to understand and connect with our past.”
- Ken House, former senior archivist at the Seattle Archives wrote, “During my time working at the National Archives, I worked with a number of researchers who were homeless, including veterans, and some who were living in their cars in the NARA parking lot while doing research. Most of these were attempting to establish their right to benefits or redress harms done to them by the federal government, their tribe, or others.”
- Andrew Fisher, a historian, wrote that he once spent a total of seven months working at the archives on behalf of the Yakama Nation. He wrote, “There is great value in being able to sit and browse through boxes and folders by hand. Many of the discoveries a historian makes in the archives are serendipitous, as pieces of evidence crop up unexpectedly in folders where you would not necessarily have looked for them, and you begin to develop a sense of patterns and of how different parts of the collection relate to others.”
- Robert Kentta, a council member and treasurer of the Siletz Tribe in Oregon, noted the tribe had spent $1 million and hundreds of hours at the archives to compile “the history of all these component tribes and bands and individuals, and to try to create a comprehensible and comprehensive history of the Siletz Tribe and its members.” He wrote, “It would be impossible to complete the research that needs to be done by the Siletz Tribe, if these records were moved.”
Ferguson filed a lawsuit earlier this week asserting the sale violates the conditions Congress placed on agencies’ ability to sell federal properties on an expedited basis and fails to appropriately account for the records’ importance to the Pacific Northwest region. Further, the federal government refused to consult or cooperate with local stakeholders, including tribal governments, in deciding to sell the property. Twenty-nine federally recognized tribes, Alaskan tribal entities, and tribal communities from Washington, Oregon, Idaho and Alaska, as well as nine community organizations, historical preservation societies and museums and Oregon joined Ferguson’s lawsuit.
Ferguson’s lawsuit asserts the Archives building was never legally eligible for the Public Buildings Reform Board’s (PBRB) accelerated sale process. The law granting the PBRB authority to sell these federal properties specifically excludes buildings used for “research in connection with federal agricultural, recreational or conservation programs.” The Archives building is exempt from expedited sale by law because it is used for research in connection with federal agricultural, recreational and conservation programs. In other words, the Archives building legally never should have been included in the portfolio of buildings the federal government has put out for bid.
The lawsuit also alleges significant administrative procedural violations. For example, the Office of Management and Budget (OMB) failed to develop the standards, criteria and recommendations required by Congress. Additionally, the federal government failed to consult or coordinate with the tribal governments in violation of federal-tribal consultation law and policy.
Nearly a year ago, Ferguson sent a letter urging the federal government to reconsider the decision to move the records at the Archives. The letter details the regional historical significance of the records. At the same time, Ferguson sought public records related to the proposed sale. For nearly six months, the agencies refused to produce the public records. In fact, the PBRB demanded that taxpayers pay more than $65,000 for records redaction before producing them. In response to the agencies’ refusal to comply with Ferguson’s records request, Ferguson filed three Freedom of Information Act (FOIA) lawsuits in August 2020 and a fourth in September.
After litigation commenced, the PBRB dropped its demand for $65,000. However, it requested until March 31 to produce its responsive documents — a date by which the Archives building may have already been sold. In response, Ferguson filed a motion asking the court handling his FOIA lawsuits to accelerate the case schedule. A judge ruled in favor of Ferguson on Jan. 5, ordering PBRB to turn over previously identified, non-exempt documents within 14 business days and all other responsive non-exempt records within 21 business days.
In October 2020, the PBRB decided that it would sell the Archives building in Seattle early this year as part of a bundled sale along with 11 other federal properties around the country. It buried the details of this dramatic decision deep in a 74-page document on its website from that meeting. The federal government did not inform any interested stakeholders of this decision, including tribal governments or the Attorney General’s Office — despite Ferguson’s letter, public records requests and FOIA lawsuits. The Attorney General’s Office only discovered it when an assistant attorney general happened across PBRB’s website in late November 2020 while conducting separate research. PBRB had previously planned on selling the properties individually over the next year.
Decision to sell Seattle’s National Archives building
In 2019, PBRB identified a dozen federal properties around the U.S. as “High Value Assets” and recommended their sale in a manner that will “obtain the highest and best value for the taxpayer” and accomplish the goal of “facilitating and expediting the sale or disposal of unneeded Federal civilian real properties.” Among those properties — many of which are unused warehouses or buildings, vacant land and properties already planned for sale — was the National Archives building in Seattle. No local, state or tribal officials were consulted in its initial selection. A month later, OMB approved PBRB’s list.
In October 2020, PBRB officials claimed COVID-19’s effects on the commercial real estate market justified an accelerated bundled sale of a “portfolio” of 12 federal properties across the country. The Seattle building is included with a mishmash of federal properties, including what PBRB called an “obsolete and largely vacant” group of eight warehouses in Auburn. PBRB seeks to sell all 12 properties at the same time to a single real estate developer.
DNA of the region
The Seattle archives houses a significant collection of tribal and treaty records relating to the 272 federally recognized tribes in Alaska, Washington, Oregon and Idaho. The archives contain original drafts of tribal treaties and original copies of correspondence from treaty negotiations during the mid-19th century.
Tribal members use federal archive records for many reasons, including to establish tribal membership, demonstrate and enforce tribal rights to fishing and other activities, trace their lineage and ancestry, and access native school records. If these historical records are removed from the Pacific Northwest, many tribal members will be prevented from exercising these important rights.
The federal government did not consult with Northwest tribal leaders before deciding to move these significant pieces of tribal history thousands of miles away from the Northwest, depriving local tribes of access to these critical historical documents.
(Photographs of Metlakahtla (Tsimshean) Children in Metlakahtla, Alaska. Available at the National Archives at Seattle (Box 276).)
The Seattle archive facility houses original case files for people who entered the country through ports in Portland and Seattle. These case files includeThe National Archives in Seattle also contains 50,000 case files related to the Chinese Exclusion Act of 1882, which was passed to limit the number of Chinese laborers entering the United States. Individuals applying for entry into the United States under the Chinese Exclusion Act had to go through an extensive application process.
(Photograph from the Chinese Exclusion Act case file of Soong May Ling (National Archives at Seattle, RS Case File 1483). As an adult, Soong May Ling, also known as Madame Chiang Kai Shek, played a role in the repeal of the Chinese Exclusion Act.)
The Seattle archive facility houses original case files for people who entered the country through ports in Portland and Seattle. These case files include identification photographs, biographical information, interrogation notes, copies of federal and local court records, as well as personal letters and photographs. These files, created to discriminate against Chinese workers, have become a critical resource to Chinese Americans looking for information about their ancestors.
One person who used these records to map his family tree with the help of archives volunteers said, “it’s all there on paper, so you can literally recreate a picture of the village and family tree through these documents.”
A dedicated group of volunteers has been working to index these files, creating an extensive database of family history. If the federal government moves these files, the volunteers will not be able to complete their work or help people learn about their family history. The Seattle Times profiled these volunteers in a video called, “It’s like reading someone’s life: Seattle’s Chinese Exclusion Act Files.”
Lawsuits against the Trump Administration
Assistant Attorneys General Lauryn Fraas, Kristin Beneski, Spencer Coates, and Brian Sutherland and Nathan Bays are handling the National Archives cases for Washington.
Ferguson has filed 85 lawsuits against the Trump Administration. Forty-six of these cases are awaiting a judicial ruling. Ferguson has 37 legal victories against the Trump Administration. Twenty-two of these cases are finished and cannot be appealed. There have been two adverse decisions on the merits, one of which is currently on appeal.
The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions. Visit www.atg.wa.gov to learn more.
Brionna Aho, Communications Director, (360) 753-2727; Brionna.firstname.lastname@example.org
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