It’s in Our Treaty: the Right to Whale 1 By

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It’s in Our Treaty: the Right to Whale1


Jovana J. Brown,2 The Evergreen State College
Abstract: The Makah people have lived on the northwest part of the Olympic Peninsula for thousands of years and utilized the bounty of the seas. Their historical tradition of whaling can be traced back at least 1,500 years. When they signed the Treaty of Neah Bay in 1855 the Makah reserved the right to hunt whales. The Makah Nation resumed this whaling tradition in 1999 by harvesting a gray whale. Since this successful hunt the Tribe has had to continue to confront and overcome many involved legal and political obstacles to continue hunting whales. This case details the Makah’s continuing efforts to resume whaling.

A Tradition of Whaling
The northwest Olympic Peninsula, in what is now Washington State, has been the home of the Makah people for well over 2,000 years. With a homeland adjoining the Straits of San Juan De Fuca which connects the Puget Sound with the Pacific Ocean, they have always lived from the wealth of the sea. The marine riches of the area provided for the Makahs’ spiritual and physical needs (Collins, p. 180). Whaling was central to the Tribe’s way of life. The Makah people hunted gray, humpback, finback and right whales (Renker, 2007, p. 11). Whaling was not only an essential subsistence and commercial activity for the Makah, but it also “formed one of the most important organizing aspects of Makah culture” (Firestone and Lilley, p. 10766).
Both archeological and written evidence of the Makah’s history of whaling exists in abundance. When the historical Makah village of Ozette was excavated in the early 1970’s evidence of their tradition as a whaling people was uncovered. Archeological evidence shows that the Makah practiced whale hunting for subsistence purposes for at least 1,500 years. Renker states: “Documented use of whale products for subsistence purposes extends another 750 years before this date, since Makahs used drift and stranded whales long before hunting technology developed”(Renker, 2007, p. 4).3 Europeans coming to the Pacific Northwest coast in the early 1800’s left written commentaries about Makah whale hunting (Renker, 2007, p.13). James Swan served as a school teacher on the Makah Reservation in the early 1860’s. In his Indians of Cape Flattery he states: “The principle subsistence of the Makahs is drawn from the ocean, and is formed of nearly all its products, the most important of which are the whale and halibut” (p. 19). T.T. Waterman also describes Makah whaling in detail in his 1920 The Whaling Equipment of the Makah Indians. In addition to the drawings of the whaling equipment, the monograph includes photographs of Makah whaling.
Whaling was an arduous and dangerous task. Before a hunt all the crew members went through a rigorous ceremonial and spiritual preparation period. ”The success of the hunt depended as much on the observance of ritual as the strength and talent of the hunters” (Renker, 2007, p. 16). The Makah hunted whales from giant canoes, 36 feet long and 5 feet wide. A whaling crew consisted of a chief, or “whaler,” and seven crew. Whaling equipment and methods continually evolved, after contact with Euro-Americans, the Makah whalers used metal harpoon heads on their wood harpoons (Makah Tribal Council, p. 6). Once the whale reached the shore, it was ceremonially thanked and blessed, then processed for food and raw materials, such as bone (Renker, n.d). The entire whale was utilized. Whale oil was rendered from the blubber and was an important food product. Meat could be used if it hadn't spoiled before the animal could be towed ashore. The bones were used for tools and weapons, the intestines and stomach for oil containers, and the sinew for harpoon ropes. The oil and blubber were also important trade goods for the Makah (Renker, 2007, p. 20).
Isaac I. Stevens, governor and superintendent of Indian affairs for the Washington Territory came to Neah Bay in January of 1855 to negotiate a treaty with the Makah. Before and during these negotiations the Makah told Stevens and his entourage about their dependence on whaling. Accordingly, during the treaty council Stevens told the Makah: “(The Great Father) knows what whalers you are – how you go far (out) to sea to take whales. He will send you barrels in which to put your oil, kettles to try it out, lines and implements to fish with” (Center for the Study of the Pacific Northwest). Thus the Treaty of Neah Bay, Article IV states: “The right of taking fish and of whaling or sealing at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the United States” (Treaty with the Makah, Kappler, Treaties, v. II, p. 682). This is the only treaty in the United States that permits Indian whaling (Renker, 2007, p. 27).
One goal of the Federal Indian policy of assimilation in the second half of the 19th century was to turn Indians from self-sufficient hunters and gatherers into farmers.4 Indian agents attempted to implement this policy in the Pacific Northwest, even though some reservations, such as that of the Makah, were not suitable for raising crops (Renker, 2007, p. 27). Thus the Indian agents at Neah Bay were forced to recognize the Makahs continued dependence on whaling, sealing, and fishing. Samuel Morse, the Indian Agent at Neah Bay stated in his 1897 annual report: “These Indians are expert seamen and often sally forth in their canoes and capture whales, going out from 50 to 100 miles at sea... In fact, whale oil is one of their chief articles of diet” (Morse, p. 292, Collins, p. 183). Though the population of gray whales declined dramatically during the last half of the 19th century due to commercial whaling, the Makah’s annual yield of whales remained fairly constant: 9 whales in 1888, 12 in 1891, 3 in 1892, 2 in 1893, and 10 in 1897 (Collins, p. 183).
Gray whales are medium size whales reaching up to 45 feet in length. They have one of the longest migrations of any mammal, and they migrate about 5,400 miles a year north to their summer feeding grounds. During the summer they live in the Arctic oceans rich in their food, bottom-dwelling organisms. When fall arrives and the weather is cold they begin their migration to the south. In the summer months they live and breed in the lagoons of Baja California until their migration north again in the spring (Marine Mammal Center). Because gray whales migrate fairly closely to the coast line it was easy for American commercial whalers to hunt them in the middle to late 19th century (Scammon, p. 23, 32). As early as 1855 shore whale processing stations were set up on the California coast (Sayers, pp.127-148). American commercial whalers pursued gray whales into their berthing lagoons in Baja California (Scammon, pp. 259-260). By 1873 gray whales were so scarce that some of the California shore processing plants had closed, although some whaling continued on the California coast until 1901 and along the coast of Baja California until 1935 (Sayers, p. 150, Dedina & Young, p. 8). A whale processing station operated in Grays Harbor on the Washington coast from 1911 to 1925. During this time 2,698 whales were brought in, of this number only one was a gray whale (Crowell, p 7). Thus by the early 20th century the gray whale had been hunted almost to extinction.
The Makah stopped whaling in 1928. Though they had been whalers for centuries they were, by the early 20th century, in a social, ecological, and political situation that prevented them from continuing this tradition. Renker states: “The combined effects of massive epidemics, boarding schools, and government acculturation policies had drastically changed the delicate and complex social dynamic which had supported the traditional whale hunt” (Renker, 2007, p. 33). These factors combined with the decimated whale population meant that even the small subsistence whale hunts of the Makah could not be maintained. The Makahs shifted toward ocean fishing for their subsistence and commercial needs (Renker, 2007, p. 33).5
The Legal Context
By the 1930’s and 1940’s the international community was concerned about the impact of commercial whaling on whale populations (Fletcher, p. 219). In 1946 an agreement, the International Convention for the Regulation of Whaling, was signed by fifteen whaling countries to set up the International Whaling Commission (IWC). The IWC website states: “The purpose of the Convention is to provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry” (IWC).

Since its inception, the IWC has recognized that aboriginal subsistence whaling is different than commercial whaling. In 1981 an IWC committee provided definitions for aboriginal subsistence whaling:

“Aboriginal subsistence whaling” means whaling, for purposes of local aboriginal consumption carried out by or on behalf of aboriginal, indigenous or native peoples who share strong community, familial, social, and cultural ties related to a continuing traditional dependence on whaling and the use of whales.

“Local aboriginal consumption” means the traditional uses of whale produces by local aboriginal, indigenous or native communities in meeting their nutritional, subsistence, and cultural requirements. The term includes trade in terms which are byproducts of subsistence catches.

“Subsistence catches” are catches of whales by aboriginal subsistence whaling operations (IWC/ Ad Hoc Technical Committee).6

In the 1970’s with the rise of the environmental movement, a strong anti-whaling campaign began (Heazle, pp 169-174). A number of non-whaling and anti-whaling countries joined the IWC and eventually gained a majority. In 1982 the IWC passed a moratorium on commercial whaling, effective in 1986 (Fletcher, p. 220). This ban has been maintained for 20 years despite scientific evidence that some whale stocks are rebounding sufficiently to allow sustainable harvest (Friedheim, p. 6). Thus the mandate of the IWC to oversee a sustainable whaling regime has been changed to an outright ban on whaling. In fact, the IWC controls only a part of the whaling that goes on around the world today. Canada and Iceland have dropped out of the IWC because of the whaling ban. Japan and Norway conduct “scientific” hunts, and aboriginal subsistence hunts continue (Friedheim, p 11).

The gray whale was designated as endangered on June 3, 1970, under the federal

Endangered Species Conservation Act of 1969, and retained that designation under the Endangered Species Act (ESA) of 1973 (Richardson, p. 7). In response to a petition from the Northwest Indian Fisheries Commission, the National Marine Fisheries Service (NMFS)7 removed the gray whale from the endangered list in 1994 because the population of gray whales had recovered to its estimated original size (US. Dept of Commerce, NOAA/NMFS, Environmental Assessment, p. 17, hereafter EA). In addition to the ESA another U.S. law that includes whales is the Marine Mammal Protection Act (MMPA) of 1972. The MMPA prohibits, with certain exception, the taking of marine mammals in U.S. waters and by U.S. citizens on the high seas and the importation of marine mammal or products into the U.S. The definition of “take” is to harass, hunt, capture, or kill, or to attempt to harass, hunt, capture, or kill any marine mammal (P.L. 92-522, 1972, Sec 3, para. 13, 86 Stat. 10). One of the exceptions to the provision of the MMPA is a marine mammal taken by an Indian, Aleut, or Eskimo for subsistence purposes or for purpose of creating and selling authentic native articles of handicrafts and clothing. In 1994 Congress clarified that the MMPA was not intended to abrogate Indian treaty rights (Pub. L. No 103-238, para. 14, 1994, 108 Stat. 532).

It is difficult to determine how much the various whale populations have recovered, because there is disagreement about what these whale populations were before commercial whale hunting began. Some scientists say various whale populations have increased to the point to allow sustainable harvests. In his Toward A Sustainable Whaling Regime, Friedheim states that the IWC members who want the resumption of sustainable whaling point out that the whale stocks placed on the highest IWC category as Protection Stocks (right, gray, humpback, blue, fin, sei, and sperm whales) are mostly recovering and that the “one whale stock slated for taking – the minke whale – is quite abundant” (p. 6). Other scientists disagree with this assessment of the recovery.
Most observers do agree that the Pacific gray whale population had made a remarkable recovery by the middle of the 1990’s. When the Makah harvested one gray whale in 1999, the gray whale population was estimated at 26,000 whales (EA, 2001 pp. 17 & 55) which may be over their original population size (before commercial whaling began in the 1850’s). The gray whale population may have reached its carrying capacity. During 1999 over 250 dead whales washed up on Pacific Coast beaches. Malnutrition may have been one cause, as well as ocean pollution, ship strikes, and other causes (Le Boeuf, et al, EA, pp 33-38). In 2005 John Calambokidis of Cascadia Research stated that the gray whale population may have settled at 17,000 animals, roughly the pre-whaling total (Seattle Times, March 30, 2005). Scientists are worried about the impact of global warming on the gray whale feeding grounds in the Arctic. In July of 2007 many of the migrating gray whales monitored off the coast of California were observed to be thin and malnourished in appearance (Le Boeuf, et al, Los Angeles Times, July 7, 2007).
The Tribe Moves to Exercise Its Right to Whale
When the gray whale was removed from the Endangered Species Act listing in 1994 the Makah Nation notified NMFS that it wanted to resume a ceremonial and subsistence gray whale hunt. The Tribal Council has noted:
For the past three decades, the Makah have been engaged in a concerted effort to revive their cultural tradition. The Tribe believes that revival of these traditions is needed to combat the social disruption resulting from the rapid changes of the past century and a half….To reverse these disturbing trends, the Makah have reinstituted numerous song, dance and artistic traditions and operated a program to restore the Makah language...Given the centrality of whaling to the Tribe’s culture, a revival of subsistence whaling is necessary for the Makah to complete this spiritual renaissance and repair damage done to the Tribe’s social structure during the years of forced assimilation. …this view is supported by a majority of Makah households (Makah Tribal Council, p. 9).
Though the Tribe has a treaty right to conduct this hunt, it chose to work cooperatively with NMFS to seek IWC approval for an annual subsistence quota of up to five whales per year. A formal agreement was drawn up between the Makah and NMFS in 1996 and again in 1997. In 1997 NMFS issued an Environmental Assessment (EA) under the National Environmental Policy Act (NEPA) which stated that the whale hunt would have no significant environmental impact (EA, 2001, pp 8-9). The United States presented the Makah proposal to the IWC in 1996, but subsequently withdrew it because the Makah delegation knew that there were not enough votes to carry it (Renker, 2007b). The following year the United States again lobbied for the Makah quota. In order to get it passed by the IWC the U.S. joined with Russia for a joint request with the native peoples of the Chukotka region who also hunt gray whales (Miller, pp. 256-7). This combined quota request was formulated to meet the needs of two aboriginal groups hunting whales from a single stock. Under this joint agreement the Makah were granted 20 whales for a five year period, with a limit of 5 whales per year. The IWC approved the joint quota request by consensus in 1997 (Miller, p. 258). The IWC renewed the joint quota for another five years (for 2003 to 2007) at its 2002 meeting, and then for another five years (2008-2012) at its 2007 meeting (Makah Tribal Council, p. 10,
After the IWC approved the Makah whale quota in 1997, the Makah Tribe established a Whaling Commission and adopted a Gray Whale Management Plan that included: “safe, humane, and culturally appropriate whale hunts,” strict reporting requirements, humane hunting techniques,8 a prohibition against the taking of calves or female whales with calves, a prohibition against sale of any whale meat or products except for traditional native handicrafts, NMFS monitoring of the hunt, and prosecution and punishment of any tribal whalers who violate the regulations (Makah Tribe and Whaling, and Makah Tribal Council, p. 10).
A Successful Hunt

Tribal whalers began their ceremonial preparations long before the actual hunt which began in the spring of 1999 (Renker, 2007b). On May 17, 1999 the Makah whaling crew successfully struck and killed a gray whale. The whalers carried out the hunt and kill strictly according to their whale management plan (Dudas, 2000, p. 2). The whale was towed back to Neah Bay to be greeted by the cheers of nearly the entire Makah community gathered on the beach. Arnie Hunter, Vice Chairman of the Makah Whaling Commission, said that the successful hunt "restores a missing link in our heritage" (Kitsap Sun, May 18, 1999). There were prayers and ceremonies to celebrate, again attended by nearly everyone in the community. The whale was butchered and the meat and blubber distributed throughout the community. A thirteen year old tribal member said: "I've heard so many stories about this from my grandpa. Now I finally know what he meant” (History Link). Anthropologist Ann Renker states: “This pivotal cultural event riveted the attention of the Makah community and energized Makah Tribal members who believed in and worked toward, the restoration of this significant cultural and subsistence practice (Renker, 2007, p. 35).9

Later that week, Neah Bay was host to the largest celebration in its history. American Indians from all over the U.S. and Canada, and indigenous people from all over the world came to celebrate the Makahs’ successful hunt. The High School gym was filled to capacity with people from all over the world who came to sample the catch, and the news media from all over the country was present to cover this historic event ( It is estimated that more than 25,000 people attended the celebration.

A survey done of Makah tribal members in 2001 by Ann Renker indicated that 93.3% of the respondents supported the Makah Tribe’s quest to resume whaling. The survey showed that 81.6% were present on the beach when the whale was taken, and 95.4% attended the feast on May 22 to celebrate the hunt (Renker, 2007, p. 37-38). A follow-up survey done by Renker in 2006 found similar support for whale hunting (88.8%). In terms of whale products, the Makah tribal member respondents indicated that 67.1% would like whale oil on a regular basis, 71.7% would like whale meat, and 47.4% would like whale blubber (Renker, 2007, pp. 51-52).

The Whale as Symbol
The Makah carried out their successful hunt in the midst of fierce and sometime vicious opposition from some members of animal rights groups and of some environmental groups. While Greenpeace and the Sierra Club did not oppose Makah whaling, the groups that did such as the Sea Shepherd Conservation society, Stop Whale Kill, Sea Defense alliance and other anti-Makah whaling groups took aggressive and hostile actions. Protestors stood outside Reservation boundaries with signs that said “Save a whale, harpoon a Makah.” The Makah, and other Washington tribes, including tribal schools were inundated with death threats and bomb threats. The media, including, airwaves and editorial pages across western Washington carried anti-Indian vitriol, and the Makah were called “savages, drunkards and laggards” (Seattle Times, May 23, 1999). On the water, protestors tried to disrupt the whale hunting by verbally taunting and harassing the whale crews, and blasting boats and people on shore with air horns, loudspeakers, fire extinguishers, smoke bombs, and rifle shots (Sullivan). The protests became so threatening that Washington State Governor Locke declared a state of emergency and called out the National Guard to protect the August, 1998 Makah Days celebration.
Since the 1970’s the whale has become a sacred, charismatic mega fauna, symbolizing the environmental movement to some. Television and the movies made Flipper the dolphin and Free Willy the whale into special creatures (Friedheim, p. 5). The “save the whales” campaign in the 1970’s and 1980’s became a rallying cry for environmentalists (Heazle, pp. 170-173). The image of the “super whale” has been given human characteristics: it is social and friendly, it sings, it has its own child care system and it is has some mystical connection to humans. Arne Kalland, a social anthropologist who has written about this phenomenon, says that this fiction combines the characteristics found in various whale species into a mythical creation, a “super whale,” which is then given human traits. Such a whale, he states, does not exist in nature, it exists only in the minds of the people who believe and perpetuate this myth (Kalland, p. 3).
The animal rights groups and environmentalists who opposed the Makah whale hunt seem to believe in the image of the “super whale.” Granted that some of the protestors had no understanding of treaty rights, were against treaty rights,10 or racist, there was an additional factor present. The protestors maintained their absolute attitude of cultural superiority toward the Makah, the unshakeable belief in the primacy and importance of their own cultural viewpoints. One American Indian observer who was at Neah Bay in 1999 wrote that the purpose of the protestors was to maintain white privilege, the “right” of white people (and other non-Indians) to write and define the “histories” of Native peoples, and attempt to invalidate the legal, ethical, historical, and moral quality of Native cultures and traditions. Their often virulent and violent protest against Makah whaling reflected their own set of beliefs and their attempt to impose these on to the Makah who had a quite different set of beliefs about human – sea mammal relationships (Two Horses, p. 26, 185). Another American Indian observer who was at Neah Bay in 1999 stated that this was an example of “the refusal of the public to respect a living Indian culture, one that wasn’t in a museum exhibit behind a glass case” (Potts, 2007).
After the hunt, Makah whale Captain Wayne Johnson said: “I am so tired of Paul Watson’s (Sea Shepherd) crew and the long line of missionaries and government Indian people telling us how and how not to be a Makah….My grandfather was proud to be a whaler, and so am I….(There) has always been the assumption of non-tribal people, that tribal culture is backward and needs to be raised up to whatever the Euro-American fad of the century is….(Rodgers, p. 102).
The antipathy of western Euro-American society toward killing whales is so strong that when the Makah began discussions with the Clinton administration in 1995 about resuming whale hunting – their first response was to offer to help the Makah develop a destination resort, so they would not need to whale (Dudas, 2007). The offer was rejected.
In addition to the strong belief on the part of many of the protestors that whales are sentient, intelligent beings that should not be harmed or killed, there were other, perhaps more understandable concerns expressed by those who opposed the Makah. Some genuinely feel that a dangerous precedent is being set in the United States and with the IWC to resume whaling. They say that this provides an opening for the Japanese, Norwegian, and Russian whalers to expand their whaling (Jenkins and Romanzo, p. 89). Some who hold this view go so far as to say that the Makah are the tool of the Japanese, who have manipulated the Makah return to whale hunting so they (the Japanese) can expand their own whale harvests (Russell, p. 102). Part of the reasoning behind this argument is that the IWC did not specifically sanction the Makah hunt, but made the Makah quota part of that of another indigenous group (Fletcher, pp 222-223). These critics say that this means the subsistence need of the Makah has not been recognized by the IWC. The commercial whale watching industry also opposes Makah whaling. Whale watching has become the most rapidly expanding part of ecotourism. Because gray whales migrate fairly close to the shore they are a popular attraction. A 2001 study found that whale-watching takes place in 87 countries and generates $1 billion in revenue (Hoyt). Thus, the argument is that a live whale that can be watched has more “value” than a dead whale, also means that it has more value than Makah cultural and treaty rights in this opinion.11
The Lawsuits Extend the Debate
The Makah right to whale has been continually challenged by opponents through an ongoing series of lawsuits that began almost immediately after the Tribe gave notice that it would invoke its treaty rights. (See timeline of legal proceedings in Appendix I.).
One of the most vocal opponents to the resumption of Makah whaling was Jack Metcalf, Republican member of the U.S. House of Representatives from 1995-2001, representing the 3rd Congressional District (Whatcom, Skagit, and Snohomish Counties). It has been said of Congressman Metcalf that his “love of whales was exceeded only by his antipathy towards Indians” (Rodgers, p. 98).
Lawsuit # 1: Metcalf v. Daley (214 F. 3d 1135 (9th Cir. 2000) In 1997 Metcalf and other animal rights organizations sued NMFS for failing to follow proper procedures in preparing its Environmental Assessment (EA) for the Makah whale hunt Metcalf v. Daley ,( 214 F.3d 1135 (9th Cir.2000):. Metcalf, et. al., argued that NOAA/ NFMS violated the National Environmental Policy Act (NEPA) by making an agreement with the Makah to resume whaling before it had considered its environmental consequences, i.e., prepared the EA.
The Ninth Circuit Court ruled in 2000 that NMFS had violated NEPA by making an “irreversible and irretrievable commitment of resources” to the Tribe before issuing the EA (Metcalf v. Daley, 214 F.3d 1135, 1143). The court concluded that NMFS had prepared the EA too late in the decision making process and therefore NMFS must prepare a new EA.
As a result of the Metcalf v. Daley decision a new Environmental Assessment (EA) was prepared and issued in July, 2001. It stated that:
NMFS’ objective is to accommodate Federal trust responsibilities and treaty whaling rights by fulfilling the Tribe’s cultural and subsistence needs, to the fullest extent possible consistent with applicable law, while ensuring that any tribal whaling activity does not threaten the eastern North Pacific gray whale population (EA, p.1).
The 2001 EA stated that the Makah would have a quota of up to five whales per year which would not significantly impact the gray whale population. “The numbers of gray whales that may be involved in Makah whaling is extremely small in comparison to the overall gray whale population…and will have no detectable effect on the size or status of …gray whale population” (EA, p. 70).
In response to the 2001 EA, Makah Whaling Commission President Keith Johnson stated that “it comes with some restrictions, but it certainly opens up more than before and it’s based on science, which we feel comfortable with” (Seattle Times, March, 29, 2002).
Greig Arnold, Makah Tribal Chairman in 2001, said: “I’m glad it’s done, its taken a long time, so the science should be good. The concerns that people expressed…should be addressed and now we can go about the business of exercising our treaty right” (NWIFC, press release, July 13, 2001).
In the spring of 2002 the Makah were again preparing to resume their whale hunt when a federal district judge issued a restraining order because of another court case filed by animal rights groups.
Lawsuit # 2: In Anderson v. Evans, (314 F. 3d 1006 (2002) the animal rights groups challenged the adequacy of the 2001 EA and asserted that whaling by the Tribe must be authorized under the Marine Mammal Protection Act.
The district court ruled in favor of the Makah and against the animal rights groups. The animal rights plaintiffs appealed. The court of appeals sided with the animal rights plaintiffs. Their decision in this second case (Anderson v. Evans, 2002) was that the EA was not sufficient and that a longer, more detailed Environmental Impact Statement (EIS) was required to examine the possible impact of Makah whaling on the resident, local whale population. The court went further to hold that the Tribe was subject to the “permitting process” of the Marine Mammal Protection Act (Rodgers, p. 104).
In response to this court decision the Makah Tribal Council issued a press release: "The Makah Tribe is deeply concerned about the effect of this ruling on its treaty fishing rights and the treaty fishing rights of all Indian tribes in the Northwest. Today's ruling may lead to new, draconian restrictions being imposed on tribal fishing notwithstanding the tribe's treaty rights and regardless of the actual impact of the tribal fishing on the resource" (Seattle Post-Intelligencer, Dec. 21, 2002).

Makah tribal attorney John Arum called the decision "devastating. It certainly has ramifications beyond whaling. If you apply this literally, the Endangered Species Act takes precedence over treaty rights, and the tribes can't fish" (Seattle PI, Dec. 21, 2002).

The Makah Nation then requested that the case be heard by the entire Ninth Circuit Court of Appeals, e.g., en banc, (“by the full court”) rather than by the original three judge panel who issued the 2002 decision.

Lawsuit #3: Anderson v. Evans, 371 F 3d 475 (9th Cir. 2004). The Makah Nation’s request to have the case heard by the entire Ninth Circuit Court of Appeals was denied and a new three judge panel of the Ninth Circuit issued a further decision. . Anderson v. Evans, 2004, went further than the 2002 decision in its reasoning against the Tribe. Again the 2004 decision stated that notwithstanding the Makah Nation’s treaty right to whale, it must obtain a permit under the MMPA before NOAA/MFS could authorize a tribal harvest of gray whales for ceremonial and subsistence purposes. In addition the decision again said that a full Environmental Impact Statement (EIS) analysis was required by NEPA, rather than the Environmental Analysis (EA) done in 2001.

Though the decision was a harsh one, the Makah Tribal Council has stated: “The Court emphasized that it was not holding that the Tribe’s treaty right to take whales had been abrogated, but only that NOAA (NMFS) must follow the MMPA waiver and/or permit process before permitting the Tribe to exercise that right” (Makah Tribal Council, p. 12).

What Is Next?

In response to the Anderson v. Evans 2004 decision the Makah Tribe again halted its hunting effort to allow NOAA/NMFS to prepare an EIS for Makah whaling (Renker, 2007, p 45). In order to comply with the NEPA process for the preparation of an EIS, NMFS scoping meetings were held in 2005 and 2006.12 In February, 2005 the Makah Tribal Council submitted a request for a limited waiver of the MMPA, including issuance of regulations and necessary permits. “The waiver, regulations, and permit would allow the Tribe to continue treaty right subsistence hunting of eastern North Pacific (ENP) gray whales” (NOAA/NMFS, “Overview of the Makah Indian Tribe’s Waiver Request, 2005).13

The draft EIS was released May 9, 2008 for review and comment. ( Public meetings were held in the Puget Sound area in Washington state in May and June of 2008. As noted above, during the annual IWC meeting in May, 2007, the IWC renewed the Makah quota for subsistence hunting of 20 gray whales for a new five year period. It could take one or two more years for the final EIS to be completed.

The Makah have had to go through an enormous amount of legal and political procedures in order to exercise their treaty right to resume subsistence hunting of gray whales University of Washington Environmental Law Professor William H Rodgers, Jr. has noted that no one else has had to go through such involved and lengthy environmental review processes as have the Makah (Rodgers, 2007). They have prepared numerous legal and social documents, negotiated patiently with NMFS time and again, attended IWC meetings, endured the racism, insults, and contempt of the anti-whaling protestors both on the Reservation and in the world media, put up with three contentious court cases and the resulting decisions, and endured the larger society’s sometimes complete ignorance of their culture and treaty rights.

While Professor. Rodgers describes both of the Anderson v. Evans decisions as “condescending, detached, self-righteous, and ignorant” of Makah knowledge and tradition, he also sees the decision in the 2004 case as a way out. “It should be treated as opportunity in Indian country” he writes (Rodgers, pp. 105-106). When the final EIS is complete, the Makah will again be able to resume whaling. This document will provide the complete scientific, legal, cultural, and treaty rights information necessary for the Makah to resume their traditional cultural practice of hunting whales.

Makah Tribal Council members Ben Johnson and David Sones stated in June, 2005:

The Makah Tribe recently observed the 150th anniversary of our treaty with the U.S. government. One essential component of this solemn observance was missing: whale meat. That’s because our right to harvest whales is systematically being denied purely on the basis of raw emotion, despite our treaty-guaranteed right to harvest whales in our traditional areas . …..

We fulfilled our part of the treaty when we gave up hundreds of thousands of acres of the North Olympic Peninsula. Many Makah men and women have served with valor in the U.S. armed forces to defend the values and integrity American represents. We only ask the same in return. It is morally, ethically and legally imperative that the U.S. government uphold its treaty obligation and remove the barriers preventing us from exercising our treaty right to harvest the whale. (Seattle Times, June 2, 2005)

In 2005, the Tribe celebrated the 150th anniversary of the Treaty of Neah Bay with a large public potlatch. Throughout the recent period the Tribe has persevered in its activities to properly manage the gray whale resource and to sustain its cultural connection to whale hunting (Renker, 2007, p. 39). The Makah Tribe continues to patiently pursue its treaty rights to hunt whales, through the complicated legal channels, anticipating that the long awaited decision will be favorable. As summer turned to fall 2007, the decision had not yet been announced. (As noted above the draft EIS was not released until May, 2008.)

On September 8, 2007 five Makah tribal members carried out an illegal whale hunt. The hunters harpooned and shot a gray whale with a high caliber rifle, but were apprehended by the U.S. Coast Guard before they could bring it to shore. The Coast Guard took the illegal hunters into custody and turned them over to the Makah tribal police. On Monday, Sept. 10, 2007, the Makah Tribal Council issued the following statement:

The Makah Tribal Council denounces the actions of those who took it upon themselves to hunt a whale without the authority from the Makah Tribal Council or the Makah Whaling Commission. Their action was a blatant violation of our law and they will be prosecuted to the fullest extent of the law. We are cooperating with the National Marine Fisheries in their investigation of this incident and will continue to do so.
The individuals who took part in this act were arrested by Makah enforcement officers and booked in our detention facility. They were released only after meeting the bail requirements set by the court. They will stand trial in our court at a future date.
We had a meeting of the general council of the Makah Tribe to discuss this incident and the membership of the tribe supports our action. The tribe has demonstrated extraordinary patience in waiting for the legal process to be completed in order to receive our permit to conduct a whale hunt. We are a law-abiding people and we will not tolerate lawless conduct by any of our members. We hope the public does not permit the actions of five irresponsible persons to be used to harm the image of the entire Makah tribe. (Seattle Times, 9/10/07)14

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Collins, G.C. (1996) Subsistence and survival: The Makah Indian Reservation, 1855-1933. Pacific Northwest Quarterly, 87(4), 180-193.
Crowell, S. A. (1983) Whaling off the Washington coast. Hoquiam, WA: Washington Print.
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Appendix I
Timeline of Court Cases and Events

  • 1994 – Gray whale taken off Endangered Species List

  • 1995 – The Makah Tribe announce decision to resume whaling

  • 1997 – Congressman Metcalf and animal rights organizations sue NMFS for failing to follow proper procedures in the preparation of the Environmental Assessment (EA) in Metcalf v. Daley.

  • Sept., 1998 – A Federal District Court in Washington state rules that the Makah can resume whaling.

  • May 17, 1999 – The Makah successfully harvest one gray whale.

  • Spring, 2000 – Makah resume whale hunt, but no whales taken.

  • June, 2000 – In Metcalf v. Daley the US 9th Circuit Court of Appeals reverses the 1998 court decision and rules that NMFS did violate NEPA in preparation of the 1997 EA. The Court orders a new EA to be prepared before the Tribe can resume whaling.

  • July, 2001 - NMFS publishes a new EA stating that the Makah quota of up to five whales per year would not significantly impact the gray whale population.

  • January, 2002 - Animal rights groups sue to challenge the 2001 EA. The case is: Anderson v. Evans (2002)

  • December, 2002 – Court rules in favor of animal rights groups’ challenge in Anderson v. Evans (2002). The 9th Circuit Court orders NMFS to prepare an Environmental Impact Statement (EIS) instead of an EA and states that the Makah Tribe is subject to the permitting process of the Marine Mammal Protection Act.

  • May, 2002 – IWC renews gray whale quota for Makah for another five years.

  • June, 2004 – U.S. 9th Circuit Court of Appeals issues second decision in Anderson v. Evans (2004). Court upholds findings of 2002 decision.

  • February, 2005 – Makah Tribe submits request to NOAA/NMFS for a waiver of the Marine Mammal Protection Act

  • .August, 2005 – NMFS publishes notice of intent to hold public hearings in order to prepare and EIS on the Makah Tribe’s request to continue treaty right subsistence whaling. Public scoping meetings are held in October, 2005.

  • August, 2007, IWC renews gray whale quota for Makah for another five years.

  • September, 2007 – Five members of the Makah tribe conduct an illegal whale hunt.

  • May 8, 2008 – NOAA/NMFS release draft EIS (DEIS) concerning the Makah Tribe’s request to continue treaty right subsistence hunting of gray whales. The DEIS considers various alternatives to the Tribe’s proposed action and is made available for a 60- day public comment period.

  • June, 2008 – The five Makah tribal members who conducted the illegal whale hunt were sentenced in federal court to a combination of prison time, supervised release and community service.

Appendix II
The News Tribune, Tacoma, WA, Sept 16, 2007.

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