For more than half a century, gray whales have migrated peacefully past Washington state's Olympic Peninsula between their northern feeding grounds in the Bering Sea and southern nurseries in Baja, California. Yet for the past few years, these whales have faced death from whalers in U.S. waters.

Claiming a need to instill cultural pride in its young people, the Makah Indian Tribe of Neah Bay, Washington, has sought to revive its long-dormant whaling tradition. The Makah Tribe has been aggressively pursuing the right to kill gray whales since the species was taken off the Endangered Species List in 1994. (The Makah were one of the principal supporters of the downlisting.)

In the 1855 treaty of Neah Bay with the U.S. government, the Makah reserved the right to whale, but by the mid-1990s, they had not actually killed whales for more than 70 years. In 1998, the U.S. National Marine Fisheries Service (NMFS) signed a management agreement with the Makah that allowed them to kill as many as five gray whales a year until 2002.

In the agreement, the Makah said they would not sell any whale meat and would target only migrating whales. In keeping with tradition, the whalers would paddle a dugout canoe and throw a handheld harpoon. But in a sharp departure from the past, supposedly to make the kill more humane, they would follow the harpoon strike with shots from an anti-tank rifle fired by a tribal member following in a motorized "chase" vessel. In May 1999, a juvenile female gray whale was their first victim. Even after four shots from the rifle, she took eight minutes to die.

A group of animal protection organizations sued the NMFS in 1998 for failing to follow proper procedure when preparing its Environmental Assessment (EA) of the hunt, as required under the National Environmental Policy Act (NEPA). The Makah hunt EA, which found that the hunt would have no significant impact on the gray whale population or the environment, was drafted and finalized after the NMFS and the Makah Tribe had already signed the management agreement. In other words, the EA was a post-hoc analysis, even though NEPA requires an EA to be an assessment designed to assist in decision-making before resources are irretrievably committed to a course of action.

The animal groups lost the original lawsuit and then appealed the lower court's ruling. In June 2000, the appeals court overturned the original ruling and ordered the NMFS to prepare another EA. Prior to this court action, the Makah had gone hunting again (in fall 1999 and spring 2000); although the hunters threw several harpoons, they killed no whales.

The tribe claims that its rights supersede the International Whaling Commission (IWC) and the United States' domestic prohibition of whaling. For centuries the Makah hunted gray whales as they passed the Olympic Peninsula on their migration along the Pacific Coast between Alaska and Mexico. The tribe stopped hunting completely in the 1920s when commercial whaling had nearly driven the gray whale to extinction, but their interest in whaling had already decreased significantly by the turn of the century. No living Makah had ever hunted whales before May 1999, yet the tribe insists whaling is a vital part of its living culture.

When it was noted that the Makah did not perform a traditional whale hunt but instead used motorized boats and whaling guns, tribal elder Hottowe replied, "We can't go back in time any more than the Europeans can go back in their covered wagons." Yet that is exactly what the Makah claimed to be doing with this hunt.

A Tribe Divided

Ironically, the whale hunt itself may threaten the tribe's survival. There is strong opposition to the hunt, even among tribal elders, and the arguments over whaling are causing rifts that even a massive influx of whale meat may not mend. In 1994, seven tribal elders signed a petition against the resumed whale hunt. Some tribal elders have criticized the lack of traditional and spiritual ritual and preparation, mostly through Native American-sponsored media. Elder Alberta Thompson, who went to the IWC in 1996 to persuade the commission to reject the Makah's petition for an aboriginal subsistence quota, called the day of the hunt, "The worst day of my life." Mourned elder Charles Claplanhoo, "It's going to divide us."

Global Politics: The Makah Whale Hunt and the IWC

The International Whaling Commission did not approve the Makah request for an aboriginal subsistence whaling quota. Instead, the U.S. government has unilaterally concluded that the IWC has given tacit approval to the quota request. However, a majority of IWC members have explicitly rejected this interpretation.

At the 1996 IWC meeting in Aberdeen, Scotland, the U.S. delegation submitted a Makah aboriginal subsistence whaling proposal. Several other delegations, including those of China, France, Oman, and Australia, indicated that they did not believe the Makah proposal met the strict IWC definition of aboriginal subsistence whaling. Consequently, the United States withdrew the proposal, realizing it would not receive the three-quarters majority vote necessary for passage.

In 1997, the U.S. delegation never submitted a proposal on behalf of the Makah. Instead, it negotiated a side deal with the Russian delegation for the Makah to share the Eastern Pacific gray whale quota with the Chukotka natives of Siberia (whom the IWC officially recognizes). A majority of delegations, expressing serious misgivings about this unprecedented attempt to subvert the accepted procedure for recognizing aboriginal groups, drafted language for the Eastern Pacific gray whale quota proposal to clarify that no part of the quota should be allocated to the Makah. The IWC delegations subsequently passed a quota amendment that stated only native peoples "whose traditional aboriginal subsistence and cultural needs have been recognised" are authorized to take whales from this stock.

The U.S. delegation chose to interpret the phrase "have been recognised" to indicate recognition by the aboriginal group's national government, even though every other aboriginal group currently whaling has been recognized by the entire IWC. At least 12 other delegations made formal statements for the record that they interpreted the phrase to mean by the IWC, and that the Makah had not been so recognized.

Politics at Home: The U.S. Government's Support of the Makah Hunt

By the time of the 1999 hunt, the federal government had consistently supported the Makah pursuit of a whaling quota. It championed the failed IWC quota petition as well as the successful U.S. application. So strong was the administration's backing that the Commerce Department provided $310,000 to fund the hunt—not to mention the undoubted hundreds of thousands of dollars spent on deploying the U.S. Coast Guard and other enforcement measures to protect the Makah during the 1999 and (unsuccessful) 2000 hunts. These hunts could not have taken place without the support of the federal government.

NMFS issued a new Environmental Assessment for the continuation of the Makah whale hunt in July 2001. This new EA was worse than the old one: The area in which the Makah were allowed to hunt was expanded, and the hunt's seasonal restrictions were lifted. In other words, the Makah could now hunt gray whales almost anywhere and at any time. The small population of "resident" whales who remain to feed in Puget Sound, rather than migrate with the rest of the population to the Bering Sea, would now be targeted by the whalers.

The HSUS, with other animal groups and individuals, filed a lawsuit in January 2002, challenging the second EA. The suit alleged that the government has not only failed to follow the strict standards laid down by the appellate court for environmental analyses of the hunt, but also failed to consider the best available science when determining the hunt's impact on the resident feeding whales.

The U.S. District Court judge issued a temporary restraining order against the federal and tribal defendants in May 2002, prohibiting the Makah from hunting until the court ruled on the lawsuit. However in August 2002, the judge dismissed the suit in favor of the defendants. The plaintiffs filed an appeal, and in December 2002, the lower court's ruling was overturned, and the Makah barred from hunting gray whales.

The U.S. Ninth Circuit Court of Appeals' forceful ruling not only ordered the NMFS to prepare a full Environmental Impact Statement (EIS), focusing especially on the hunt's impact on resident feeding whales, but also ruled that the hunt, while allowed under the Treaty of Neah Bay, would be in violation of the Marine Mammal Protection Act (MMPA) unless and until the Makah were issued an MMPA waiver. In their ruling, the three appellate judges also indicated that the issue of the IWC's sanction was indeed ambiguous, and by no means clear, as the NMFS had reported in the EA.

The revived Makah whale hunt has followed a rollercoaster path, from killing a whale in mid-1999 to being enjoined in late 2002 until an EIS and an MMPA waiver are issued. The HSUS will continue to be involved in this issue and will update members via our web site.