Makah Tribal Council Comments on the Interim Report of The Interagency Ocean Policy Task Force 16 October 2009

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Makah Tribal Council


on the

Interim Report


The Interagency Ocean Policy Task Force

16 October 2009

This comment letter on the Interim Report by the Interagency Ocean Policy Task Force complements the Makah Tribal Council’s Marine Resources Statement submitted to the Council on Environmental Quality (CEQ) on July 14th 2009. The Makah Tribal Council (MTC) would like to acknowledge the Ocean Policy Task Force for their inclusive process in framing their recommended priority objectives for developing a National Ocean Policy.

In our previous policy statement the MTC emphasized the importance of the sustainable use of the marine environment to our cultural and economic wellbeing and provides the policy foundation to the multiple marine resource and management efforts we are involved with at the federal and state level. We also stress the importance of our engagement at the highest level of this significant national policy development. The 1855 Treaty of Neah Bay imposes a trust responsibility on the Federal government to consult with the Tribe to preserve and protect the Tribe’s treaty resources and management rights. CEQ’s engagement of the MTC at the highest level of this policy development effectively reflects the unique trust obligations the United States shares with federally recognized tribal governments. We would also underscore the importance that nothing in this Ocean Policy development could be interpreted as altering or abrogating any treaty rights. Our treaty with the federal government reserves the right of taking fish at our usual and accustomed places, guaranteeing to the Tribe the right to harvest fish, as well as the right to manage marine resources consistently with sound conservation principles, which includes the right to protection and preservation of the marine environment.
The Makah people, as inherent sovereigns of our traditional territories, have been an ocean going people for thousands of years with treaty reserved rights to access the ocean and its marine resources. To assist in building assurances that our treaty reserved rights are recognized at the highest level of government the MTC supports the call for a National Ocean Policy. The MTC, as the duly elected tribal governing body of the Makah Tribe, deals with multiple federal and state agencies as a resource trustee on an ongoing basis to ensure our reserved treaty rights are being adequately considered in the development of policy actions that may impact our treaty resources. The lack of a synchronized national ocean policy remains problematic to the Makah Tribal Council’s ability to execute its fiduciary responsibilities to its tribal membership. Developing a coordinated and comprehensive national management plan is the most efficient way to address this existing lack of coordination. The MTC supports a governance structure based on ecosystem science as a national priority.

Meaningful coordination between federal, state and tribal governments acknowledges our respective resource trustee status and is fundamental to the success of any proposed management structure.

The MTC supports the creation of a National Ocean Council that is made up of principal and deputy-level members. The MTC views this governance structure as central in ensuring resource trustee participation at the highest level on ocean policy issues. Establishing clear operational definitions and procedural direction and identifying comprehensive guiding principles to direct its decision-making process should be a driving factor in the formation of this council. Mutually developed operational principles and procedures will effectively support consistency and compatibility in management actions promoted by the council.
The Makah Tribal Council supports the recommendation for tribal representation on the Governance Advisory Committee to the National Ocean Council. This recommendation acknowledges the federal government’s treaty trust responsibility to tribal governments in that much of the National Ocean Council’s work will affect tribal trust resources and related marine habitats and ecosystems directly.
Because of the direct affects national ocean policy will have on Makah and other Northwest Treaty Tribal resources, inclusive tribal participation in developing these policies is essential. The MTC feels strongly that two seats are insufficient and problematic to effectively represent tribal issues from across the United States and requests an increase in the number of tribal seats that will allow for enhanced tribal involvement. These appointments should have funding provided to address administrative support needs for meeting preparation and inter-tribal policy coordination that will be required of these positions.
We support the nine priority objectives for developing a National Ocean Policy by the Task Force. The Ecosystem Based Management approach with the related prioritization of ocean monitoring, assessment and research activities makes sense to the MTC. Their general descriptions are charting a positive course forward. We look forward to further discussing these objectives as they continue to be developed.
While the nine recommended priority objectives chart a positive course forward and make sense the MTC would strongly recommend including marine transportation safety issues as a priority objective. Because the United States’ economy is dependent on foreign trade that maritime transportation is a primary vehicle, we believe it would be appropriate to have a thorough discussion of potential marine transportation related impacts to the marine environment which includes oil spills, invasive species, wastewater discharges and air emissions as well as unique management challenges posed by the primarily foreign fleet. The MTC has made substantial progress in maritime transportation policy development by participating in drafting tribal consultation policy documents with the Department of Homeland Security/US Coast Guard and US Navy Region Northwest to ensure tribal treaty interests are accounted for in their respective rule making procedures and program management. The MTC has also achieved substantial progress in safety rule making and emergency response with the US Coast Guard, US EPA, FEMA, the State of Washington and related stakeholders such as the Oil and Shipping industry. We look forward to including further discussion of these objectives as they continue to be developed.

The MTC believes the membership limitation that may exist for the Ocean Research and Resources Advisory Panel (ORRAP) should be addressed. The Interim Report explains the current ORRAP membership may be reviewed to decide if additional representation is reasonable to expand the level of expertise on the panel. Tribal professional staff and scientists should be eligible to participate on this panel, if membership were to be open to these representatives. The definition in the report is not entirely clear on this point.

The MTC is particularly interested in how the Coastal and Marine Spatial Planning objective is carried out. Given adequate representation, we view this as an opportunity to gain improved recognition of our treaty rights status associated with the identification of our ocean area defined as our: “usual and accustomed treaty area”, thereby reducing the potential to create or maintain use conflicts. A fundamental priority of the Makah Tribe is the ability to maintain our right to hunting, fishing, and gathering of our natural resources and the access and long-term management of our trust resources is a priority for the MTC. The MTC believes the Northwest Treaty Tribes desire a process that comprehensively balances onshore, nearshore and offshore activities. To be effective the process needs to be structured to involve the tribes in substantial and meaningful consultation on a government-to-government basis and resource trustees, and not merely relegate tribal comments to the same level as non-tribal stakeholders.
One of our experiences with marine spatial planning has been with NOAA and the Olympic Coast National Marine Sanctuary (OCNMS) to recognize our treaty-reserved rights in their management decision-making. NOAA and the OCNMS have addressed our treaty status through the establishment of an Intergovernmental Policy Committee comprised of the four coast tribes, the Governor’s Office and the Sanctuary. The effectiveness of this effort will be measured by the outcome of the Sanctuary Management Plan update that is underway.
We view our participation in the Ocean Policy Task Force effort as an opportunity to have our unique relationship to the management of the environment recognized at the highest levels of government. It is critical for the Task Force to recognize that the Makah’s right to fish in our Usual and Accustomed areas was adjudicated following the Boldt Decision thereby delineating the geographic extent of our Treaty rights. Therefore we do not have the luxury enjoyed by commercial fishermen to follow the fish as climate change alters migratory behaviors. It is from this perspective that we have worked tirelessly to uphold our ancestors’ hard-fought efforts to conserve the marine resources and supporting habitats that sustain our culture and economy.

The Makah Tribal Council considers the Federal Government as a partner and trustee charged with the conservation and protection of ocean resources and the Tribe’s treaty reserved right to harvest those resources sustainably for generations to come. We look forward to working with the Obama Administration to collaboratively advance this essential effort of developing a National Ocean Policy that provides a national framework for comprehensive management of the marine environment that is also responsive to unique regional issues like we enjoy in our treaty area.

Michael Lawrence, Chairman

Makah Tribal Council

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