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

Makahs should recognize it’s time to give up whaling by Charles Bergman

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Makahs should recognize it’s time to give up whaling by Charles Bergman

When I read the news that five Makah whalers illegally killed a gray whale last weekend, I felt sick. But I was not surprised.

For years, the Makah Tribe has been trying to renew its hunt for gray whales, which is part of their cultural heritage. It has been highly controversial, inflaming feelings on both sides. Though I frequently write about wild animals and animal issues, I’ve kept silent on the issue out of respect for the Makah Tribe.

Now, after several Makah whalers have killed a whale illegally, I feel compelled to write. The men who killed this whale acted in full defiance of the law and with no apparent respect for the whale they killed.

Tribal leaders realize they have a public relations disaster on their hands. The tribe promises punishment for the men who committed this outrage and sent a delegation to Washington to try to salvage its petition to resume whale hunting.

The tribe also claims these poachers are isolated individuals. But that is not what the poachers themselves say.

The poachers are experienced whale hunters, not random criminals, and they knew exactly what they were doing. Four of the five poachers were members of the crew that killed a gray whale legally back in 1999. One of them, Wayne Johnson, was the whaling captain of that crew.

Johnson is unrepentant about what he did. “I’m not ashamed,” Johnson told The Seattle Times. “I’m feeling kind of proud. … I should have done it a long time ago. I come from a whaling family.” According to Johnson, whaling is part of the effort to keep the culture alive.

By their own words, these men seem to see themselves not as tribal outliers but as agents in the tribe’s desire to revive hunting. They use the same language to describe what they did as the tribe to justify the hunt: They did it in the name of the tribe’s cultural heritage.

And they did it in the open, on a sunny Saturday morning. They must have known they would get caught with a 40-foot, 40-ton whale, which was left to sink uselessly to the bottom of the strait.

It seems clear that they wanted to make a political statement. And that is exactly the problem with this hunt in general. The whale is not viewed as an intelligent, living creature. It is treated like an expendable object, a symbol in the enactment of cultural identity.

The poachers even claim that the whale is complicit in their crime.

Johnson is reported as saying the whale approached their boat. “It chose us,” Johnson said.

Common in some hunting circles, this idea claims that the animal actually presents itself to the hunter to be killed. It’s also a controversial idea – to claim the victim is asking for it. There’s another way to understand such intimate moments without making the whale culpable of what was, after all, a human crime.

Of my many close encounters with whales, let me tell just one story here. Almost two years ago, I took a group of students to Antarctica. In a bay on the Antarctic Peninsula, a minke whale approached our ship.

For over an hour, the whale repeatedly passed close by our ship, rubbed the ship, even rose out of the water to look at us. Scientists have called whales the “mind in the sea,” and this minke whale was the agent of our long encounter.

One of the great experiences of our lives, it was an unforgettable moment of contact with another intelligent species.

Such intimate encounters help to explain why people have come to love whales so deeply. They also explain why so many people find killing the whale in such a moment so cruel and appalling.

The whale poachers have produced an unfortunate image of the Makah Tribe’s entire whaling project – not the tribe, but the project. It’s hard to understand how the tribe did not realize its whalers might do something like this. It raises real questions about the tribe’s ability to control its own whalers. The tribe needs to show it can clean up its act, which means significant punishment to the poachers.

If Michael Vick gets jail for killing dogs, what is appropriate punishment for illegally killing an animal as smart and spectacular as a whale?

The tribe has been given an opportunity to rethink this ill-conceived hunt. Times change, and so do cultures. The Makah could easily make themselves the protectors and guardians of these whales, not their persecutors. Many other indigenous peoples have made similar changes. The tribe can leave this hunt where it belongs – in the past.

Charles Bergman is a professor of English at Pacific Lutheran University and author of several books including Wild Echoes, a book about endangered species.

Used with permission from The News Tribune, Tacoma WA.

Appendix III

The News Tribune, Tacoma, WA, Sept. 23, 2007

Respect Makah traditions, by David Huelsbeck and Judith M.S. Pine

Was Charles Bergman, who called on the Makah Tribe to give up whaling (Insight, 9-16), writing to support the special nature of whales, or to attack Makah culture?

We’d like to make it clear from the outset that we are not writing to attack those who believe that whales are special, but we do feel that it’s urgent to express support and respect for Makah culture. All humans view things through the lens of culture, and no one has a monopoly on the “right” way of looking at things. Some non-Makah feel that hunting whales is wrong. They have every right to feel that way. In our society, however, we expect vegetarians to accept the dietary practices of those who eat meat. We do not prohibit the consumption of pork or seafood because some of us believe these foods should not be consumed.
Prohibiting Makah whale hunting would be much more extreme than a mere dietary prohibition; it would deny the Makah a central element of their cultural heritage.

For thousands of years, Whale, or “Ch’i-t’uh-pook,” nourished the Makah. Excavation at the Makah village of Ozette revealed that whale accounted for as much as 85 percent of all of the food represented by the recovered food remains.

Few sites older than Ozette’s 1,500 years have been sampled, but whale bones are common in sites of human activity as much as 4,000 years old. Makah culture is alive. The tribe’s identity as whalers is an important part of the living culture. Although more than 70 years had passed since the last whale hunt in the 1920s, members of whaling families knew what they were supposed to do physically and spiritually to prepare for the revived hunt in 1999.
The tribe selected the image of Thunderbird carrying a whale for the tribal flag. Thunderbird hunts whales like an eagle hunts salmon, and in the distant past Thunderbird taught the Makah how to hunt whales. Traditional belief holds that if whale hunters are properly prepared both physically and spiritually, then Whale will give itself to them. To characterize Whale offering this gift as a “victim asking for it,” as Bergman suggested, betrays a complete lack of cultural understanding and is deeply offensive.
For the Makah, Whale is not a subordinate species under the dominion of Man, but rather a powerful, intelligent, generous entity who graciously provides food and material for various uses to the Makah people. The Sept. 8 hunt that attracted wide attention violated tribal law, taking place without the required tribal authorization. It will be dealt with in tribal court, where the penalties for violating tribal hunting regulations can be severe.

The Makah hunt of gray whales is legal. It’s a right that existed before the 1855 treaty with the U.S. and is now guaranteed to the Makah by that treaty.

The 1994 amendment to the Marine Mammal Protection Act states that “Nothing in this Act … is intended to alter any treaty” with Indian tribes.
The gray whale no longer is endangered. The Scientific Committee of the International Whaling Commission estimated in 2002 that more than 400 whales a year could be sustainably harvested annually. The Makah are proposing to take no more than five whales per year. The tribe has a strong record of managing its natural resources to enhance the resource base, including timber, fish and wildlife. The continued practice of many important aspects of Makah culture requires a healthy natural environment. These efforts help to protect the marine environment. It’s not in the Makahs’ interest to harm the gray whale population; they have a detailed management plan based on strong natural resource conservation principles.
Non-Makah are in no way obliged to adopt Makah practices or to become Makah, but neither are the Makah in any way obliged to cease to be Makah. Not all that long ago, Europeans did attempt to oblige the Makah and other native peoples to cease to exist.

The continued existence of Native Americans is powerful evidence of the importance of identity to human beings.

An assertion that the Makah should “change their culture” springs from an assumption that cultural difference is cosmetic, a stage dressing under which lies one universal way of being in the world. Anthropological research has taught us that although we are universally human beings, members of the same species, there is no one universal human way of being in the world.

Pacific Lutheran University anthropology professor David R. Huelsbeck has worked with the Makah for 30 years on archaeology and educational projects. For the past 12 years, he has taken PLU students on January trips to Neah Bay to study Makah culture. Judith M.S. Pine is a visiting assistant professor of anthropology at PLU. In January, she led students in studying the tribe’s effort to restore its ancestral language.

Used with permission from The News Tribune, Tacoma WA.

1 Copyright held by The Evergreen State College. Please use appropriate attribution when using and quoting this case. Cases are available at the Native Cases website at Thanks to Dr. Ann Renker for her careful review and comments, and to Debbie Ross-Preston, Cheree Potts, Dr Linda Moon-Stumpff, Bruce Davies, and Dr David Huelsbeck for reviewing and offering corrections and advice on this case.

2 This case draws on material from “Usual and Accustomed” unpublished manuscript by Jovana J. Brown.

3 There was faunal evidence of sperm whales at the Ozette archeological site. This could represent drift whales. (Renker, correspondence, 9/24/07)

4 “Indian policy was also designed to assimilate Indian people through an education system that prohibited use of Indian languages or cultural rituals” (Makah Tribal Council, p. 8).

5 During the assimilation period of the late 1800’s sealing was the Makahs economic and cultural mainstay. By the 1890’s Makah schooners were hunting seals along the Washington coast and as far north as the Bering Sea. Sealing was suppressed by the federal government in 1897.

6 Under current IWC regulations aboriginal subsistence whaling is permitted for Denmark (Greenland, fin and minke whales), the Russian Federation (Siberia, gray and bowhead whales), St. Vincent and the Grenadines (Bequia, humpback whales) and the USA (Alaska, bowhead and Makah, gray whales). It is the responsibility of the national governments to provide the Commission with evidence of the cultural and subsistence needs of their people. The Scientific Committee provides scientific advice on safe catch limits for such stocks (

7 The National Marine Fisheries Service (NMFS) is a sub-department of the National Oceanic and Atmospheric Administration (NOAA) which is in the U.S. Department of Commerce.

8 A high caliber rifle is used in the hunt. “Makah Indian Tribe Whaling: Questions and Answers” states: The Marine Mammal Protection Act defines “humane” in the context of taking a marine mammal as “that method of taking which involves the least possible degree of pain and suffering practicable to the mammal involved.” 16 U.S.C. § 1362(4). While it is true that use of a high-powered rifle is not a traditional method for the Makah, it is far more humane than the traditional Makah practice of plunging spears into the whale to cause internal bleeding and ultimate death (

9 Dr. Ann Renker anthropologist and linguist is currently Principal of Neah Bay High School and Markishtum Middle School and past director of the Makah Cultural and Research Center. In addition to her scholarly writings (Handbook of North American Indians) she has written the Makah Needs Statements for IWC and NOAA/NMFS, and attended the IWC meetings every five years to present the Needs Statements. She has lived in Neah Bay for over 30 years.

10 Australia and New Zealand are anti-whaling countries. The expression of this by their anti-whaling citizen groups is often to denigrate the importance of American Indian treaties. Some observers believe this is a reaction to their own aboriginal populations and the struggles of these populations for their indigenous rights.

11 Whale watching can harm whales. NMFS statistics report that nineteen of the reported 292 whale- ship strikes between 1975 and 2002 involved whale watching vessels. “The vessels have struck more whales than any other craft expect for Navy ships and cargo freighters over nearly three decades” (Clayton).

12 The NEPA process is designed to “involve the public” and gather the “best available information” for the agency (NOAA/NMFS in this case) to make a decision. A notice of the proposed EIS appears in the Federal Register inviting public comment. In the current Makah EIS process this included public meetings. This is called scoping. A draft EIS is then prepared and issued for public comment. After this is a final EIS with the formal “Proposed Action: is issued. The public is not invited to comment on the final EIS, but they still can protest the EIS to the agency director who is supposed to resolve complaints. Once this is completed a “Record of Decision” is issued and then the proposed action can be implemented.

13 The process to obtain a waiver from the Marine Mammal Protection Act is time consuming and complicated. In addition to the EIS, it involves preparation of a justification for the waiver, gathering information and testimony for a pre-hearing with an Administrative Law Judge (ALJ). Then a hearing is held with the ALJ, a decision is rendered, there is a period for comment on the decision, then a final decision (Parsons).

14 See the Teaching Notes “Additional Background Information” for the disposition of this case.

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