July 14, 2009
This document provides a summary of the importance of marine resources to the Makah Indian Tribe and the Tribe’s role in managing and conserving those resources. Because of its dependence on the resources of the sea, the Tribe has a unique interest in the work of the White House ocean policy task force. At the conclusion of this paper the Tribe presents specific recommendations to help insure that its legal rights and its ocean-oriented culture and economy are considered and protected by the task force.
The Tribe’s ancestral home and permanent reservation is located on the northwest corner of the Olympic Peninsula in the State of Washington, at the entrance to the Strait of Juan de Fuca from the Pacific Ocean. For centuries, the Makah have managed and sustainably harvested the resources of the sea from this strategic vantage. In 1855, they told United States treaty negotiators that the sea was their country and that without it they would be poor. In the Treaty of Neah Bay, the Tribe agreed to cede most of its lands to the United States, but reserved “the right of taking fish and of whaling and sealing at usual and accustomed grounds and stations.”
The ocean and its resources remain the foundation of Makah economy, culture and subsistence today. The Tribe has the largest treaty fishery for marine species in the United States. More than 70 marine fishing vessels participate in the Makah fishery, including 40 longline vessels and twelve trawlers. Makah’s adjudicated fishing areas extend 40 miles into the Pacific Ocean and east about 50 miles into the Strait of Juan de Fuca, although much of the Tribe’s traditional marine territory is now in Canadian waters and not available to the Tribe. Makah fishermen commercially harvest salmon, halibut, many species of groundfish (including whiting, black cod, flatfish and a variety of rockfish), and shellfish, which collectively provide approximately fifty percent of household income on the Makah Reservation.
As interpreted by the Federal courts, the treaty right of taking fish guarantees to the Tribe not just the right to harvest fish but the right to manage marine resources consistently with sound conservation principles and the right to protection and preservation of the marine environment. At the same time, the treaty right imposes a trust responsibility on the Federal government to consult with the Tribe and preserve and protect the Tribe’s treaty resources and management rights.
The Tribe’s extensive involvement in management forums and marine resource protection initiatives, which is briefly summarized below, demonstrates the central importance of marine resources to the Tribe and its commitment to their conservation and protection. The Tribe looks to the Federal Government as a partner and trustee to preserve and protect these resources and the Tribe’s ability to harvest them sustainably for generations to come.
In order to implement its management rights and responsibilities, the Tribe has a fisheries management department that employs professional fisheries managers and fisheries. Through its fisheries department, the Tribe is actively involved in international, federal and state management processes, including those of the International Pacific Halibut Commission, the Pacific Salmon Commission, the developing U.S.-Canada Pacific Whiting Management Committee, and the Pacific Fishery Management Council (PFMC). A member of the Makah Tribe currently serves as a representative of treaty tribes on the PFMC, and the Tribe participates extensively on the PFMC’s panels and committees. The Tribe consults regularly with the National Marine Fisheries Service (NMFS) on the development of marine fishing regulations, and NMFS has formally recognized the Tribe as a co-manager of marine fisheries.
The Tribe makes important contributions to and seeks to protect its unique interests in these management forums. For example, the PFMC and NMFS have established broad-based closed areas and depth restrictions to protect overfished rockfish species and ESA-listed chinook salmon in the non-treaty Pacific coast groundfish fisheries. Because the Makah fisheries are restricted to the Tribe’s usual and accustomed grounds, the imposition of such broad closures and depth restrictions would largely shut down its fisheries. As an alternative, the Tribe, in consultation with PFMC and NMFS, has developed a series of intensive management measures that have enabled the Tribe to prosecute its groundfish fisheries while limiting bycatch of rebuilding rockfish species and chinook salmon to the same – or to a greater – extent than in non-treaty fisheries. These measures include targeted time and area restrictions based on real-time fishing conditions, a full retention requirement, and gear restrictions and modifications. The success of these measures is illustrated by the use of salmon excluder devices in the Tribe’s whiting fishery. These devices have reduced salmon bycatch by nearly fifty percent without employing the depth restrictions in the larger, more mobile non-treaty fishery. And, because of their success, the Tribe’s salmon excluder devices as well as other Tribal management measures are now being studied for use in non-treaty fisheries.
The Tribe is also a partner with the Olympic Coast National Marine Sanctuary (OCNMS), serving on the Sanctuary’s Advisory Council and its Intergovernmental Policy Council (IPC). A primary focus of the Tribe’s work with the OCNMS is coordination of and collaboration on research regarding the many marine resources in the Sanctuary, which overlaps significant portions of the Tribe’s usual and accustomed fishing grounds. In addition, the Tribe employs marine mammal biologists, has participated with the U.S. delegation to the International Whaling Commission, and is seeking to exercise its treaty whaling right within the framework of international and federal law.
In order to protect the marine environment, the Tribe has played a substantial role in oil spill prevention, response and clean-up efforts. After the Tenyo Maru spill, the Tribe contributed $400,000 from its damage assessment funds for the initial stationing of a response tug in Neah Bay. The Tribe has since established an Office of Marine Affairs, which participates extensively in federal and state maritime safety forums. The Tribe served as a Tribal On-Scene Coordinator in the Incident Command for a 2008 outer coast oil spill drill, and has been invited by Coast Guard District 13 and EPA Region 10 to participate in the Regional Response Team/Northwest Area Committee as a formal voting member. The Tribe is working with the Coast Guard, EPA, and the Washington Department of Ecology to develop a Tribal Annex to the Northwest Area Plan, to include the emergency response system for the entrance to the Strait of Juan de Fuca, the Neah Bay Staging Area and Tribal cultural concerns. Through its Office of Marine Affairs, the Tribe is working to obtain certification as a Primary Response Contractor from the Washington Department of Ecology, establish a Basic Ordering Agreement with the Coast Guard for response resources and services, acquire equipment and resources from the Navy to apply for and achieve Oil Spill Response Organization status from the Coast Guard for the Cape Flattery area, and develop a model tribal fishing vessel response team, to bring to bear the resources of the large Makah fishing fleet to respond to a spill. In addition, the Tribe is working with the National Oceanic and Atmospheric Administration and the OCNMS to integrate tribal interests into an oil spill pollution program.
The Tribe has also participated in Coast Guard marine safety rulemakings and is working with the Coast Guard and the Department of Homeland Security to develop a tribal consultation policy, to ensure that tribal treaty rights and the Federal trust responsibility are fully protected and implemented in such rulemakings.
Through all of this, the Tribe has endeavored to sustain its marine resources-based economy and culture, while preserving for future generations the tradition of harvesting the sea that was treasured by the generation that signed the Treaty of Neah Bay in 1855. In order to protect its legal rights and insure that its ocean-oriented culture and economy are considered and protected in the work of the White House ocean policy task force, the Tribe respectfully requests the following be articulated in the Task Force recommendations:
(1) A clear statement that nothing in the National Ocean Policy or Task Force framework recommendations is intended to alter the treaty between the United States and the Makah Tribe or any other federally-recognized Indian Tribe with a proven marine resource-dependent economy and culture; and
(2) A specific requirement that all agencies represented on the task force consult with affected Indian tribes regarding the development and implementation of ocean policy, to ensure that Tribal treaty rights and the Federal trust responsibility are fully protected. For marine policy issues affecting the Pacific Northwest region we recommend the Task Force designate a representative of the Makah Tribe with whom federal agencies should consult, coordinate and collaborate in developing, implementing and enforcing components of the National Ocean Policy.