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Soundings Archive

Makah Whale Hunt Controversy Continues
The Makah are a Native American tribe in the Northwest United States. Traditionally, they hunted whales. In 1920 they stopped.

In the 1990s, the Makah decided to hunt whales again as part of a general cultural revival for the tribe. Specifically, they planned to hunt gray whales off the coast of Washington State and in the Strait of Juan de Fuca.

The Makah are the only Native American tribe that has a treaty with the United States, the 1855 Treaty of Neah Bay, that specifically guarantees them the right to hunt whales. Nevertheless, the tribe's efforts to resume hunting have been attacked at every turn by various interest groups.

In particular, any whale hunt must now be approved by and comply with quotas set by the International Whaling Commission. The Makah spent several years mired in domestic and international politics before they finally obtained such an "aboriginal subsistence quota" in 1998.

Any Makah whale hunt would also have to be approved by the National Marine Fisheries Service ("NMFS"), which is part of the US National Oceanic and Atmospheric Administration ("NOAA"). The NMFS has to review the proposed hunt under the US National Environmental Policy Act ("NEPA") and under the US Marine Mammals Protection Act ("MMPA"). In 1998, after a NEPA Environmental Assessment ("EA"), the NMFS issued a NEPA Finding of No Significant Impact for the Makah hunt.

The matter has been in and out of the agencies and court ever since.

The Makah provided the following description of the status quo, and of the most recent court decision (by the United States Court of Appeals for the Ninth Circuit), in the tribe's application to NOAA/NMFS for a waiver under the MMPA to hunt gray whales:
    "The Ninth Circuit held that, notwithstanding the Tribe's whaling rights under the Treaty of Neah Bay, the Secretary of Commerce must waive the MMPA moratorium on taking marine mammals and issue a permit under the MMPA before NOAA can authorize a tribal harvest of gray whales for ceremonial and subsistence purposes. In addition, the court held that NOAA should have prepared an Environmental Impact Statement (EIS) before authorizing a Makah gray whale quota because there were questions over the local impacts of the hunt on the gray whales that feed off of the Washington coast. The Court emphasized that it was not holding that the Tribe's treaty right to take whales had been abrogated, but only that NOAA must follow the MMPA waiver and/or permit process before permitting the Tribe to exercise that right."
The Makah's very well-written waiver application further states:
    "[T]he Treaty of Neah Bay has not been abrogated and provides the Makah Tribe with special whaling rights not shared by other United States citizens. NOAA may regulate the exercise of these rights only if it can demonstrate that its regulations are necessary for conservation. To satisfy the ‘conservation necessity' standard, federal regulations restricting the Tribe's whaling rights may be promulgated only where necessary to preserve a particular species or stock of whales and, taking existing Tribal regulations into consideration, where they are the least restrictive means available to achieve this purpose."
With regard to the current health and status of the relevant gray whale population, the tribe's waiver application explains:
    "Gray whales were first given international protection from commercial whaling in 1937. By 1993, NOAA determined that the Eastern North Pacific (ENP) stock of gray whales had recovered to near its estimated original population size. 58 Fed. Reg. 3121 (Jan. 7, 1993). NOAA removed the ENP stock from its list of endangered and threatened species on June 16, 1994. 59 Fed. Reg. 21,094."
On August 25, 2005, NMFS published a Federal Register notice of the Agency's intent to prepare a NEPA EIS and to conduct public scoping meeting for the EIS in connection with the Makah waiver request and MMPA permit application.

The Makah's right to hunt gray whales, is still uncertain. There will likely be further litigation regardless of what action the federal agencies take on the tribe's permit application and waiver request. It remains to be seen whether the United States will violate still another treaty with the American Indian.
  • Click here for for Makah waiver request
  • Click here for Federal Register notice of public meetings on EIS scoping
  • Click here for court opinion requiring EIS and waiver
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