- Case Study:

Makah Whaling, WA (Makah) (2006)

For current information on the status of Makah whaling, visit NOAA Northwest Regional Office or Makah Nation Whaling. History When explorers, Vitus Bering and James Cook were first introduced to the Makah community in the late 18th century, they immediately recognized its potential as an extremely lucrative trading partner. The Makah are avid fishermen and whalers and the Europeans began trading copper for whale oil and bone as soon as they came into contact. For these explorers, the Makah were an incredible and valued resource, one whose goods they traded with nations as powerful and distant as Russia and China. This interaction was also beneficial for the Makah, for whom whaling had been a central cultural practice as long as the community had existed, who used the trade to protect the land they inhabited from European settlement and to protect the political authority of their community. Whaling was the very first point of negotiation between European colonizers and the Makah, one commemorated in the original Treaty of Neah Bay, written and signed in 1885. It is entirely appropriate that the Makah be distinguished in the United States' jurisprudence by their ability to whale, for indeed, much of the community's cultural and spiritual coherence comes from the long tradition of whaling. From both oral and archeological evidence, it is clear that the Makah have been hunting whales for at least 2,000 years. As the Makah community website puts it, "More than anything else, whaling represents the spiritual and technological preparedness of the Makah people and the wealth of culture." For whaling, as many sacred practices of Native communities, is significant in many ways at once. Whales, for instance, are physically sustentative for the Makah. One whale can feed an entire village, not only for one community-wide feast or potlach, but for many weeks. Furthermore, the Makah use the oil for burning, bone for tools and carving, sinew and gut for storage. The practice of hunting, slaughtering, and preparing whales for these purposes are also spiritually sustaining. Men going on hunts prepare for years, ensuring that they are physically and spiritually purified. The fasting, training, bathing, and prayer involved in this preparation have been carried on even in recent years, embodying a traditional continuity between the past and present. In the early 1900's the Makah community gradually stopped whaling. There are many explanations for this, most of them having to do with increasing poverty and a subsequent focus on physical survival and thus a decreasing interest in “religious” rituals, the frequent and often unlawful discouragement by the U.S. government, and the rapid decline in whale populations in the Neah Bay area owing to American, European, and Japanese commercial whaling. The latter reason, the population loss, led the U.S. to help establish the IWC (International Whaling Commission) to regulate global, commercial whaling, and to put the Grey Whale on the Endangered Species List in 1969. The Makah did not hunt while the Grey Whale was classified this way, despite their theoretical legal ability to do so, as specified in the Fish and Wildlife Service Secretarial Order #3206 sections 3c and 4. When, in 1994, the Grey Whale was taken off the Endangered Species list, because of a very healthy recovery of the population to nearly 30,000, the Makah tribe notified government authorities of their interest and intention in resuming traditional whale hunts. The decision to resume the practice of this tradition was a major, positive step for the Makah community, which had, for many years, been suffering from poverty, unemployment, and cultural dislocation. Not only did it connect Makah youth, who had never personally experienced a whale hunt, to the elders, who were the last living links to this central cultural and spiritual event, but it became a ideologically defining issue for the community. Again, the tradition of whaling would be a central aspect of survival for the Makah. For, whereas whaling had originally been a practice which demonstrated the community's determination to survive physically, it was now a practice which demonstrated its determination to maintain the right to cultural and religious autonomy. In both cases communal identity and survival were clearly at stake. In this sense, the resumption of this ancient tradition is explained by the necessity of the community to respond to threats to the independence and distinctiveness of their way of life. Current Legal Battle The tribe, working in conjunction with the US government and the political organizations which regulate international whaling, primarily the IWC, drafted a management plan to ensure that the whaling that would take place be completely legal. The primary grounds upon which the collective parties established this legal claim to hunt was not based on the Treaty of Neah Bay, but on provisions in the IWC and National Oceanic and Atmospheric Administration (NOAA) policy designed to allow an "aboriginal subsistence" quota of whales to be taken by the tribe. The quota established for the Makah is shared with the Chukotka natives of far eastern Russia. The Makah were granted 4 gray whales per year, and the Chukotka, 120. The quota was granted to the tribes in conjunction because the tribes are hunting from the same stock. By conforming to these policy changes, the Makah willingly revised many of the very central features of the traditional hunt, including where they could hunt, how many "strikes" (defined as successful or unsuccessful strikes of whales by the hunters' harpoons) they were allowed, the role of the captain of the whale hunt, and many others. These were all provisions established because of the decline of the grey whale population, which had nothing to do with traditional Makah hunting. In 1999, after receiving approval from the United States government and the IWC, the Makah had its first whale hunt in decades. Robert Sullivan, a journalist, recorded the event in his popular book, A Whale Hunt. Sullivan's work documented not only the disciplined work of the crew to prepare themselves properly, according to both traditional and contemporary judicial codes, but also the immense, highly controversial, and very aggressive opposition mounted against the Makah's hunt by animal rights organizations. The Opposition Since the beginning of the 1999 hunt, opposition to the Makah tradition has been led by animal rights groups like the the Sea Shepard, the Humane Society of the United States, the Cetacean Society International and the West Coast Anti-Whaling Society. As quite diligently outlined by the National Council for Science and the Environment, the specific reasons for opposition are typically centered around the idea that whales are more highly intelligent mammals and thus ought not be killed, that the Makah seek to profit from whaling, that allowing the Makah to hunt has set a legal precedent that might allow countries like Japan and Norway to pursue the right to hunt Grey Whales commercially, that the Makah, because of their temporary hiatus from whaling have lost the right to hunt specified in the Treaty of Neah Bay, or that because the IWC has not sanctioned the hunt specifically, that the hunt is illegal. As the NCSE article elaborates, many of these arguments are either legally unfounded, or represent extra-legal concerns. Generally speaking, none of the opposition groups express understanding of the culturally central role whaling has in the Makah community or even attempt to see the issue through the lens of religious freedom. Furthermore, their complaints that the Makah community is threatening the environmental integrity of the area do not mention the costly efforts of that community to research declining deer and elk populations, to remove a dam harmful to local fish, to invest in alternative 'wave energy', to work against toxins in local water, or to restore lagging salmon populations, all of which have been initiated in the last two years. The limited perspective of these groups, so absolutely focused on the well-being of the whales, is not one adopted by more major environmental organizations like Sierra Club and the Wilderness Society, neither of which has opposed the Makah whale hunt. The Future of the Hunt In July 2004 the 9th District Court of Appeals upheld the Makah treaty rights to take whales, however the court ruled with plaintiffs (organizations like the Humane Society, the Cetacean Society, and the West-Coast Anti-Whaling society) by agreeing that the Environmental Assessment prepared by the Makah and the United States government in 1994, after the California Grey Whale had been taken off the Endangered Species list, did not take into account some more subtle threats the Makah hunt could have on the Grey Whale population. Specifically, the suit claims that the whales in Neah Bay are a sub-grouping of the larger, migrating Grey Whale population. It is unknown how this sub-group is established and how or if it is refilled by whales of the migrating population, if its members are lost. The judge in the case, though he admitted that there was significant evidence suggesting that the Neah Bay group is indeed refreshed by the larger population, maintained that the Environmental Assessment did not take into account this and other details. The ruling invalidates the original EA and creates an injunction against further Makah hunting until a new Environmental Assessment can be drafted. Beyond this, the Makah must also reapply for an exemption from the Marine Mammal Protection Act (MMPA) drafted in 1972 in an effort to curb the disastrous effects of over-fishing around the United States. The Makah and the United States argued in the 2004 decision that they were already exempted from the restrictions on hunting in the act, because of sub-section 1372(a)(2), which states that parties whose right to hunt is protected when it is "expressly provided for by an international treaty [established]...before the effective date [of the MMPA]." And though the Makah do have an agreement with the IWC and the US government that grants them a 4 whale per two year quota, it does not pre-date the MMPA. In February 2005, the Makah applied for an exemption from MMPA, which the NOAA's National Marine Fisheries Service is at the currently reviewing at the time of this updating (Summer, 2006), in conjunction with a reissued Environmental Impact Survey, and will begin a formal rule making process. The Makah could also, but have not yet, argued that the 1885 Treaty of Neah Bay fulfilled the MMPA's exemption, largely because of the rather troublesome latter half of the most relevant clause in that treaty: "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." Since all citizens of the United States do not, currently, have the right to receive this kind of exemption from the MMPA, neither do the Makah, strictly speaking. This case demonstrates the absence of and need for consideration of tribal cultural preservation in a wide range of U.S. federal policy governing issues from treaty rights to the stewardship of the nation's environmental resources. It also demonstrates that though U.S. environmental policy can often be used as an umbrella of protection for tribal claims it remains a rather problematic protection. And finally, it is a clear example of cultural and political autonomy lost to a community once it has ceased to be an economic beneficiary of the United States government. Updated on January 14, 2015