The story of Makah whale hunting is a complex tapestry woven with threads of ancient tradition, treaty rights, conservation concerns, and modern legal challenges. For centuries, the Makah Indian Nation, residing on the northwestern tip of Washington State, has held a deep cultural and spiritual connection to the gray whale. Whale hunting wasn’t simply a means of sustenance; it was a cornerstone of their identity, social structure, and spiritual beliefs.
The Makah’s relationship with the gray whale is documented in their oral histories and solidified in the Treaty of Neah Bay, signed in 1855 with the United States government. Article 4 of this treaty explicitly grants the Makah "the right of taking fish and of whaling or sealing at usual and accustomed grounds and stations." This provision recognized and affirmed their pre-existing right to hunt whales, a practice integral to their way of life.
A Tradition Interrupted
The Makah voluntarily ceased whale hunting in 1926. This decision wasn’t due to a change of heart, but a response to the drastic decline in gray whale populations caused by commercial whaling operations undertaken by non-Native interests. The International Whaling Commission (IWC) further solidified this pause with a global moratorium on whaling in 1946, aiming to protect depleted whale stocks worldwide.
However, conservation efforts proved successful. The gray whale population rebounded significantly, leading to its removal from the U.S. Endangered Species List in 1995. This milestone reignited the Makah’s desire to resume their ancestral practice, a desire deeply rooted in their cultural identity and treaty rights. On May 17, 1999, the Makah successfully hunted a gray whale, marking their first hunt in over 70 years. The event was met with jubilation within the tribe and sparked immediate controversy.
Legal Challenges and the Marine Mammal Protection Act
Animal rights groups quickly challenged the hunt, arguing that it violated the U.S. Marine Mammal Protection Act (MMPA). Subsequent court decisions sided with the plaintiffs, requiring the National Marine Fisheries Service (NMFS) to conduct an environmental impact assessment (EIA) before any future hunts could proceed. This assessment aimed to evaluate the potential impacts of Makah whale hunting on the gray whale population, the marine ecosystem, and other relevant factors.
The NMFS initiated a comprehensive study, considering various alternatives to the Makah’s proposal to hunt gray whales. These alternatives ranged from allowing the hunts to proceed under specific regulations to denying the Makah’s request altogether. The draft federal study, released on May 9, analyzed the potential impacts of each alternative.
One key finding of the study highlighted the potential negative consequences of denying the Makah’s request. According to the study, "divorcing" the Makahs from whaling would erode their cultural identity and exacerbate tensions between the tribe and the federal government. Conversely, allowing the Makah to hunt in accordance with their proposal could reinforce their cultural identity through the revival of whale-hunting rituals, spiritual training, songs, dances, and ceremonial activities. The study also noted that the opportunity to harvest, process, share, and consume whale products could strengthen the tribal members’ sense of community and contribute to social and spiritual stability.
The Makah proposed hunting up to four gray whales annually for five years. Their regulations included measures to minimize the impact on the whale population, such as prohibiting the hunting of calves or whales accompanied by calves. They also proposed avoiding hunts between June 1 and November 30 to protect any whales that might be part of a seasonal resident gray whale herd. Furthermore, the Makah planned to implement detailed photographic monitoring of all landed whales, comparing these images with existing photo-identification catalogs to track the local population. Whale products would be restricted to local consumption and ceremonial use.
The 2007 Unauthorized Hunt and its Aftermath
Despite the ongoing legal processes, five Makah men conducted an unauthorized gray whale hunt on September 8, 2007. They cited frustration with the delays in obtaining a permit to exercise their treaty rights and practice a hunt that is central to their culture. The IWC had previously renewed the Makah’s quota for the harvest of up to 20 gray whales over five years for subsistence purposes, but the necessary federal waiver remained elusive.
Frankie Gonzales, Wayne Johnson, Andrew Noel, Theron Parker, and William Secor Sr. faced charges in U.S. District Court for violating the MMPA and conspiring to violate the act. Each charge carried a potential penalty of a one-year jail sentence and a $100,000 fine.
Ultimately, Gonzales, Parker, and Secor agreed to plead guilty to harpooning and shooting a gray whale without the required federal waiver. In exchange, the U.S. attorney dropped the conspiracy charge and recommended probation and community service. Johnson and Noel pleaded no contest, preserving their right to appeal the decision. All five men faced further prosecution in Makah Tribal Court for hunting without a tribal permit, a violation of the tribe’s marine mammal management plan, carrying a potential penalty of a year in tribal jail and a $5,000 fine.
Tribal Perspectives and Legal Interpretations
Makah Chairman Micah McCarty characterized the unauthorized hunt as "a very visible attempt to raise a treaty rights issue through civil disobedience." He pointed to a survey indicating that a significant majority of Makah people supported the reintroduction of whale into their diet, even among those who might not personally consume it, underscoring the broader support for upholding the tribe’s treaty rights.
McCarty expressed concern that the unauthorized hunt could jeopardize both the Makah’s waiver request and their treaty rights. He feared that a trial could set a precedent for prioritizing the MMPA over the treaty, despite the Constitution’s designation of treaties as the "supreme Law of the Land."
Jack Fiander, a Yakama attorney representing the defendants, described the outcome as "very lenient." However, the court rejected the defense’s attempt to justify the hunt under the American Indian Religious Freedom Act (AIRFA). A spokesperson for the U.S. attorney’s office emphasized that the case was not about a tribe’s right to hunt, but rather about an illegal hunt under the MMPA.
The court’s decision regarding AIRFA was considered "problematic" by McCarty. He stressed that the case had no direct bearing on the draft environmental impact study, as legal proceedings against the individuals were separate from the federal and tribal criminal justice systems.
The NMFS study continued to analyze the potential impacts of whale hunts on various aspects, including the whale population, the Makah people, the local marine ecosystem, public safety, public sentiment towards whales, and tourism/whale-watching activities.
The Ongoing Debate: Makah Whale Hunting
The story of Makah whale hunting remains a complex and evolving issue. It highlights the tension between indigenous treaty rights, conservation concerns, and evolving societal values. The Makah’s pursuit of their ancestral traditions is deeply intertwined with their cultural identity and self-determination. However, the legal and ethical considerations surrounding whale hunting continue to fuel debate and require careful consideration of all perspectives.