August 19, 2020

Environmental, Natural Resources, & Energy Law Blog

Whether the Federal Government should Allow Makah Tribe to Resume Hunting Whales - Manase Salema


                                                                Manase Salema - LLM Student


Whaling is a symbol of the culture, heritage, and identity of the of the Makah Tribe. In

their culture, whalers were the most honored and respected tribal members. The Makah tribe

were well known for distributing large quantities of whale meat and oil.1

Whale oil, blubber and meat was the primary food of the Makah, and constituted up to 80% of their diet. The Makah used whale oil like butter or gravy on their food. The best piece of

whale meat was saved to be served at feasts and ceremonies. Whale meat and oil were also used

as gifts at holidays and celebrations. Makah believe a traditional diet that includes whale can help

improve health. The rituals and ceremonialism of whaling played a large role in everyday

Makah life; whaling to the Makah people is also physically and spiritually nourishing.2

Hunting and fishing rights are some of special rights that Native Americans reserved as a result of the treaties signed between their tribes and the federal government. However, animal rights activist have protested and believe the Makah should no longer hunt the whales. I recommend that the federal government allow the Makah tribe to resume hunting whales because the Endangered Species Act delisted gray whales from the Endangered Species List in 1994.Also by doing that, the federal government will be honoring the treaty between the tribe and the United States.

This essay explores where the federal government should allow Makah Tribe to resume hunting whales; Part II describes the reserved treaty rights doctrine that holds tribes retain right to

hunt and fish, that are not explicitly abrogated by treaty or statute which has been a corner-stone

for controversy and protest from state government and non-Indians hunters and fishers. Part III

indicates the potential source for the protection of gray whales. Part IV describes recent efforts to

resume hunting of whales. Part V concludes with recommendations for the proposed regulations

governing the hunting of the whales by the Makah tribes.


In 1855, the Makah Nation and the United States signed the treaty of Neah Bay.3 The Treaty negotiation took place in Chinook and English. The purposes of this treaty were to gain cessions and guarantee of peace. The treaty states,” The right of taking fish and of whaling in all common ground is further secured.”4 The Makah were willing to make a great sacrifice to preserve their culture and traditions. Eventually, the tribe ceded 91% of their land to the U.S in order to retain their whaling rights.5 This is the only treaty the U.S signed with Native American that specifically retains the right to whale.6

The Indian tribes insisted on retaining in the treaties various rights that were crucial to their

culture and religion. The treaties were not gift to the tribes but were a negotiated trade of rights

between the sovereigns; they were not a grant of rights to the Indians, but grant of rights from



The International Whaling Convention. In the 1920s, international consensus found the gray whale was near extinction. In recognition of the consensus and out of respect for the species, the Makah tribe voluntarily ceased whaling. The international community soon followed suit.8 In 1937, the international whaling community convened to manage whaling. In 1946, forty-two nations signed an agreement to ‘provide for the proper conservation of whale socks and thus make possible the orderly development of the whaling industry.9 The nations created the international convention for the regulation of whaling (ICRW) and established the internal whaling commission (IWC) as the sole governing body.10The ICRW organizes whaling practices into commercial, scientific and aboriginal subsistence.11 Two decades later, United States passed a series of environmental statutes including, the Marine Mammal Protection Act in 1972 and the Endangered Species Act in 1973.12 Congress idea was to help protect the environment, but not necessarily at expense of the Indian Treaty Rights.13

The Marine Mammal Protection Act was enacted in 1972.14 The MMPA protects all marine mammals in U.S waters regardless of population status.15 The MMPA charges NOAA with ensuring stocks do not, fall below their optimum sustainable population”.16 The Act also creates the Marine Mammal Commission, an independent agency that provides oversight of marine mammal conservation policies carried out by NOAA.17 If an entity wishes to take whales, the entity must apply for a waiver to the Act’s no-take prohibition. The application is assessed by NOAA and the Commission.18 In the 1994 MMPA amendments, Congress insisted that the MMPA does not in any way diminish or abrogate protected Indian treaty fishing or hunting rights.19 NEPA is a procedural Act that requires all federal government agencies to assess the environmental effects of the proposed federal agency actions by preparing an Environmental Impact Assessment.20

The Endangered Species Act of 1973 was enacted to replace the Endangered Species Conservation Act of 1970 (ESCA).21 In 1970, under the ESCA the gray whale was

listed as endangered.22This recognition carried on ESA. However, in 1994, NOAA delisted the gray whale after determining the population recovered.23

Nevertheless, NEPA, IWCA, MMPA and ESA are relevant regulations of gray whales.24 In that sense, they consequently relate to the Makah tribe’s eagerness to practice its treaty right hunting gray whales. However, only IWCA and MMPA provide a clear path for the Makah Tribe to resume whaling. The rest are ambiguous in relationship to Makah tribe whaling.25


By 1994, gray whales in the Eastern Pacific Ocean had rebounded and ESA delisted gray whales

from the Endangered Species list. Seeing an opportunity in the early 1990’s Makah tribe members showed interest in resuming their traditional whaling and announced plans to reclaim its heritage and hunt again.26 The hunt caused protest from animal rights activists, who mercilessly threw smoke bombs at the whalers and sprayed fire extinguishers into their faces.27 Also, other groups veered motorboats between the whalers and tribal canoes to disrupt the hunt. The authorities seized several vessels and made arrests.28

After the hunt, animal rights activists sued, and the Ninth Circuit Court of Appeals overturned the federal approval of the tribe’s whaling plans.29 The court determined that the Makah tribe needed to obtain a waiver under the1972 Marine Mammal Protection Act.30Due to that fact and in an effort to resume to exercise its treaty rights, on February 14, 2005, Makah tribe sent a request to the NOAA Fisheries for a waiver of the MMPA’S take moratorium.31

On February 27, 2020 , in accordance with the National Environmental Policy Act (NEPA), NMFS is preparing a Daft Supplemental Environmental Impact Statement (DSEIS) to supplement information in the 2015 Draft Environmental Impact Statement (DEIS) on the Makah Tribe request to hunt Gray whales, which was prepared in response to the Makah Indian Tribe’s request that NMFS authorize a limited ceremonial and substance hunt of Eastern North Pacific (ENP) gray whales in the Makah Tribe’s usual and accustomed fishing grounds off the coast of Washington States.32

Some Animal Rights groups make claims to challenge NOAA decision to grant the waiver. For instance; the Sea Shepherd Conservation Secretary and Animal Welfare Institute oppose the hunts.33 They argue that NOAA environmental review has been inadequate, its not clear to what extent the whales’ recent die die-off has hurt the population, and the Marine Mammal Protection Act may have voided the Tribe’s right.34

They also said in statement that the Makah’s family and tribal traditions and rituals associated with its whaling history can continue without the resumption of whaling.35


  From my perspective, the most important thing is honoring the Makah’s treaty rights. I would recommend that, the number of gray whales that may be ‘taken’ should be not more than eight annually, and not more than 40 in any five-year period. In addition to that, the tribe regulations should limit the number of injured and lost whales to be no more than three in a year (out of, a population of 28,000 whales.)36 Also, the number of gray whales takes and struck should be subject to reduction if it is deemed necessary to meet the International Treaty Obligations of the United States under the International Convention for the Regulation of Whaling (ICRW).37Tribal regulations should not allow the taking of any other species of whales except gray whales.38


1 Watters & Dugger , at 325; see also Colson, supra note 10, at 5 (stating that whaling, “for which theyhad elaborate techniques and ritual played a central role in their culture”).


The Makah relied on whales for their subsistence. 7 Smithsonian Institution Handbook of NorthAmerican Indians, Northwest Coast 391-97 (Wayne Suttles ed., 1990); Indians of Cape Flattery, supranote 10, at 19, 22 (stating that the principal food of the Makahs was whale and halibut); Taylor, supranote 9, at 53, 74 (stating that the Makah main food in “prehistoric times” was shellfish “and sea mammal,particularly whale”); Hewes, supra note 10, at 132 (“Whale and halibut formed the chief subsistence ofthe Makah.”); Egan, supra note 69 (quoting Hubert Markishtum, tribal chairman, as statingthat whaleproducts were 80% of the Makah diet); Makah Indian Tribe v. United States, 23 Ind. Cl.Comm. 171, 174 (Docket No. 60-A, 1970), aff’d, 195 Ct. Cl. 539 (1971) (stating that 75-90% of theTribe’s subsistence in 1855 came from the sea, including whales); David R. Huelsbeck, The Utilization

of Whales at Ozette, in 2 Ozette Archaeological Project Research Reports 267 (Stephan R. Samuels ed.1994) (stating that whale bones found in Ozette Village could have accounted for 70-85% of all meat andoil consumed by inhabitants).

3 Treaty of Neah Bay, Jan. 31, 1985, 12 Stat. 939.


4 Treaty of Neah Bay, supra note 1, at art. 4.


5 Makah Culture & Research Center, Our Culture: Our History (2005),; See generally Russell D’Costa, Reparations as a Basis for the Makah’s Right to Whale, 12 Animal L. 71 (2005). (Last visited March 25, 2020)


9 International Convention for the Regulation of Whaling (ICRW), Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 72.


10 Ibid


11 IWC, Conservation & Management, http:// (last visited March 25, 2020) (last visited March 25, 2020 ).


12 Marine Mammal Protection Act (MMPA), 16 U.S.C. §§ 1361-1423 (2006).


13 See, e.g., Hearings on H.R. 1450 Before the Subcomm. on Fisheries and Wildlife Conservation of the H. Comm. on Merchant Marine and Fisheries, 87th Cong., 1 (1962); Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 587 (1997); Andrus v. Allard, 444 U.S. 51, 56 (1979). Part B.2 discusses how the Dion abrogation standard was used by the court U.S. v. Dion, 476 U.S. 734 (1986).


14 MMPA, supra note 12.


15 MMPA, 16 U.S.C. § 1371(a), (2006).


17 MMPA,at 1402.


19 MMPA Amendments of 1994, Pub. L. No. 103-238, § 14, 108 Stat. 532, 558-59 amended by 16 U.S.C. § 1361 (2000).


20 40 C.F.R. §§ 1500-08 (2008).


21 Endangered Species Act (ESA), 16 U.S.C.§§1531-1544 (2006).


22 Ibid

24 William H. Rodgers, Environmental Law in Indian Country 106 (West 2005).


25 Ibid

27 Shukovsky (quoting Paul Watson of the Sea Shepherd Conservation Society) (“We will directly intervene to protect the whales. [Makah whaling boats] will be sunk.”).


28 Peggy Andersen, Associated Press, Melee During Anti-WhalingDemonstration Shakes Both Sides, Columbian, Nov. 2, 1998; Sullivan, at 139-42.


30 Ibid

31 Ibid

34 Ibid

35 Ibid

37 ibid

38 U.S. Dept. of Commerce et al., Environmental Assessment on Issuing a Quota to the Makah Indian Tribe for a Subsistence Hunt on Gray Whales for the Years 2001 and 2002 40 (2001).