Thomas A. Martin has posted “Whaling Rights of the Makah” on SSRN.
Here is the (incredibly, far too long) abstract:
The Makah Indian Tribe (‘Makah’ or ‘Tribe’) is a federally recognized tribe located on the northwestern tip of the Olympic Peninsula, with a current population of 1,356. The Makah have hunted whales for over two millennia.
In 1855, the Makah entered into a treaty with the United States in which the Makah reserved their whaling rights. Yet by the turn of the 19th century, gray whale stocks suffered a drastic decline, as did the demand for whale oil. These external forces, combined with internal difficulties, such as economic and social dislocation within the tribe, caused the Makah to cease whaling.
In 1994, the United States removed the gray whale from the endangered species list. Generations had passed, and the Makah looked at their treaty rights with renewed interest. Not ignorant to the federal and international regulatory scheme that had developed since the Tribe’s last whale hunt, the Makah consulted with the National Oceanic and Atmospheric Association (“NOAA”) regarding the issuance of an aboriginal subsistence whaling permit from the International Whaling Commission (‘IWC’).
The NOAA entered into an agreement with the Makah in 1996 obligating the United States to seek a permit with the IWC. The United States did seek a permit on behalf of the tribe, but withdrew its request after opposition from several IWC members.
After this withdrawal, the NOAA and the Makah entered into a modified agreement which required the tribe’s management plan to include, inter alia, time and area restrictions, ‘including . . . confining hunting activities to the open waters of the Pacific Ocean outside the Tatoosh–Bonilla Line.’ The National Marine Fisheries Service (‘NMFS’), a division of the NOAA, issued an environmental assessment (‘EA’) and a finding of no significant impact (‘FONSI’) concerning the proposed whale hunt.
The following year, the United States and the Russian Federation presented a joint proposal to the IWC. In response to this proposal, a majority of the IWC delegates voted in favor of a new Schedule, limiting the use of the California gray whale quota to aboriginal groups ‘whose traditional aboriginal subsistence needs have been recognized.’ The NMFS then announced a quota allowing the Makah to take five whales in a one-year period.
A group of conservation organizations quickly brought an action in federal district court against the NOAA and the Makah, alleging, inter alia, violations of the National Environmental Policy Act (‘NEPA’). In Metcalf v. Daley, the district court judge granted summary judgment for the United States and the Makah, holding that the NOAA did not violate NEPA.
Finally, in 1999, after waiting patiently for the requisite governmental permission, the Makah harvested their first whale iover seventy years. This victory was shortlived, however, as the plaintiffs appealed the decision in Metcalf to the U.S. Court of Appeals for the Ninth Circuit, where the Court reversed and remanded, holding that the NOAA violated NEPA because the agency’s prior agreement with the Makah tainted the objectiveness of the EA. As a result of this decision, the Makah’s whaling endeavors have been indefinitely postponed, though the Tribe continues to work with the NOAA in reaching a management plan that satisfies the requirements of NEPA and the Marine Mammal Protection Act of 1972 (‘MMPA’).
The public outcry following the Makah’s 1999 expedition has prompted several interest groups to examine or reexamine whaling rights of indigenous peoples. In this paper, I examine these different stakeholders, covering both legal and moral arguments of the following groups: the Makah and other indigenous peoples who hold ancient whaling traditions; the conservationist groups who oppose whaling; and governmental bodies, including the United States and the International Whaling Commission (‘IWC’).
In Part I, subpart A, I examine the law behind the Makah’s interest in whaling, starting with the Treaty of Neah Bay (‘Treaty’). Using the three theories of interpreting Indian treaties, I conclude that the Treaty recognized a definitive right that obligates the United States to respect the Makah’s continuous right to hunt whales. I also examine, in subpart B, whether Congress abrogated this treaty right, thus terminating native whaling rights held under the Treaty.
In Part II, I examine the moral and cultural aspects of this dispute. Whether whaling is ultimately ‘right’ depends on the paradigm through which one sees the issue. To the Makah, whaling is an important cultural practice passed down for generations – a vital link to their ancestors. While the Makah recognize the importance of conservation, the harvesting of a whale takes on a different meaning from that held by conservationists. Killing a whale is a sacred rite, an integral part of the Makah heritage that should not be deprived. For conservationists, hurting any sentient being, especially one from a recognized endangered or threatened species, constitutes a moral wrong. To this group, old religious practices such as whaling should give way to societal progress.
In Part III, I discuss the guardian – ward relationship between the United States and the Makah. Federal agencies, most notably the NOAA, have advocated for Makah whaling rights before the IWC and in federal court. The IWC’s response to these federal efforts was a poorly drafted revised schedule to the International Convention for the Regulation of Whaling (‘ICRW’). The NOAA’s litigation efforts to fight off conservationist groups were unsuccessful, as the Ninth Circuit’s Anderson decision ordered the NOAA to prepare a full Environmental Impact Statement (‘EIS’). Moreover, Anderson held that the Tribe must obtain a MMPA waiver before resuming rights held under the treaty. While the Makah and conservationist groups may have certain ideals (that happen to be in direct conflict with each other), the reality is that the federal government will have the last word, with some influence from the International Whaling Commission (‘IWC’). In short, this amounts to striking a middle ground – whaling will be allowed but inevitably the United States will attach strings. The Makah’s response is an understanding, willful compliance. The majority of conservationist groups will accept nothing less than a complete ban, and so they will likely be disappointed.