## Facts

- A municipality planned construction work expanding a wastewater-treatment facility on or near an area identified as a historic Native village site where burials had previously been reported.
- As a condition of moving forward, state historic-preservation oversight required a written plan governing what would happen if human remains or burial materials were encountered during excavation.
- The city hired an archaeological consulting firm, Golder Associates, Inc., to monitor ground disturbance and carry out an agreed “treatment plan” developed with tribal participation, including participation by the Lummi Indian Nation.
- The treatment plan set out notice requirements if remains were discovered and contemplated involvement by the Nation and relevant public officials in decisions about excavation, handling, and disposition.
- During excavation in 1999, human remains were encountered on multiple occasions.
- The Nation alleged that Golder did not provide required notice each time remains were found and that remains and related materials were removed and transported without the Nation’s involvement and without required approvals.
- The Nation sued asserting (among other theories) that it could enforce the city–Golder agreement and incorporated treatment plan as an intended third-party beneficiary, and that defendants’ conduct violated Washington’s Indian Graves and Records Act, RCW 27.44.
- Defendants disputed liability and raised defenses including constitutional challenges to RCW 27.44 and an argument that the case should be dismissed for failure to join other entities as required parties under Federal Rule of Civil Procedure 19.

## Issues

1. Whether the Lummi Indian Nation qualified as an intended third-party beneficiary of the city–Golder contract and incorporated treatment plan, with standing to sue for breach.
2. Whether the alleged disturbance, removal, handling, and transport of human remains without required notice and approvals violated Washington’s Indian Graves and Records Act, RCW 27.44.
3. Whether RCW 27.44 was unconstitutional (including under equal protection and the Establishment Clause theories raised by defendants).
4. Whether the case had to be dismissed under Rule 19 for failure to join other entities claimed to be required parties (such as the municipality and certain state actors).

## Decision

- The court resolved cross-motions for summary judgment by granting the Nation partial summary judgment on key liability issues and denying defendants’ contrary request for summary judgment.
- The court held the Nation could sue as an intended third-party beneficiary to enforce obligations in the treatment plan that were incorporated into, or formed part of, the city–consultant arrangement.
- The court concluded that failures to comply with the plan’s notice and handling requirements supported liability for breach of the contractual obligations owed under the plan.
- The court concluded that the challenged handling of remains, as addressed in the order, violated RCW 27.44’s requirements governing Native American graves and remains.
- The court rejected defendants’ constitutional attacks on RCW 27.44.
- The court denied dismissal based on Rule 19, finding the absent entities were not required parties whose absence compelled dismissal.
- The court left damages and any remaining issues for later proceedings.

## Legal Principles

- A non-signatory may enforce a contract as an intended third-party beneficiary when the contract language and surrounding circumstances show the contracting parties intended to confer an enforceable benefit on that non-signatory.
- When a cultural-resources or inadvertent-discovery “treatment plan” is incorporated into the parties’ performance obligations, noncompliance with its notice, consultation, and handling procedures can constitute breach.
- RCW 27.44 creates civil consequences for unauthorized disturbance or removal of Native American human remains and associated burial materials, including when required notice and approval steps are not followed.
- A statute addressing protection and treatment of Native American graves may withstand equal protection review where the classification is rationally related to legitimate governmental objectives tied to burial protection and historic preservation.
- A statute is not invalid under the Establishment Clause simply because it accounts for tribal or religious concerns, where it has a secular purpose and does not primarily advance religion or create excessive governmental entanglement.
- Rule 19 does not require dismissal when the court can award relief among existing parties and absent parties’ interests can be addressed through other mechanisms (including separate claims for contribution or indemnity).

## Conclusion

In this Western District of Washington decision, the court concluded that the Lummi Indian Nation could enforce the excavation treatment plan as an intended third-party beneficiary and that the consultant’s departures from the plan’s notice and handling requirements supported liability, including under Washington’s Indian Graves and Records Act, RCW 27.44; the court also rejected constitutional challenges to the statute and refused to dismiss the case for nonjoinder, leaving remaining issues such as damages for later resolution.


Lummi Indian Nation v. Golder Assocs., Inc., 236 F. Supp. 2d 1183 (W.D. Wash. 2002)