Spiritual Whaling Rights: A Case Study of Legal Discrimination Against The Makah Tribe
Millholland Family and Amelia Smeatlum at Makah Indian Reservation. Photo: J.W. Thompson
Who Are The Makah?
The Makah people, a Native American tribe based in Washington state, have lived with the gray whale as their central energy source for thousands of years. From dietary staples to ceremonial rituals, the Pacific gray whale’s physical and spiritual essence is firmly anchored to the Makah identity. The whale hunts establish the social order of the community – everyone comes together to play a role in their preparation, as well as the process of preserving the whale products afterwards. The whale hunt provides households with extra community support in navigating the harsh challenges of living on the reservation, including unemployment, homelessness, and addiction.
Currently, the Makah Tribe has 2,692 enrolled members, just over a thousand of whom live on the Makah Indian Reservation, which rests on the tip of the Olympic Peninsula. Due to the remote location of the reservation, 99% of Makah households rely on hunting and fishing for a portion of their regular diet. The Makah Tribe’s healthy working relationship with the environment allows them to depend on subsistence hunting without disrupting local ecosystems.
The very ethos of subsistence is deeply ingrained in all their cultural practices because like other indigenous peoples, they understand how to live with the land, rather than just on the land.
Makah men pulling a canoe on shore, Neah Bay, ca 1900. Photo: Museum of History & Industry (MOHAI) Seattle
Over the last 30 years, the Makah nation has been subjected to legal discrimination barring them from hunting gray whales in subsistence.
Their lawful right to hunt whales has been repeatedly revoked and reinstated by various entities, from the International Whaling Committee to animal rights organizations’ legal defense teams. Whaling has always been an essential pillar of social stability for the Makah, so the criminalization of the practice deprives this community of a physical and spiritual need.
Wa’atch River Feeds Into Neah Bay (18 Feb 2008). Photo: Sam Beebe
Neah Bay Treaty (1855)
After generations of supporting themselves without federal recognition, the Makah Tribe entered into the Neah Bay Treaty of 1855 with the United States. This legislation officially classified the Makah Tribal Council as a functioning government with land rights over the Makah Reservation. It also initiated the sequence of legal actions protecting Makah subsistence whaling under U.S. law.
Aside from offering more political structure, the Neah Bay Treaty assigned the Makah Tribe the sovereign right to their cultural practices and the land’s natural resources in exchange for giving up 469 square miles of Makah territory to the U.S. government.
These cultural practices, as stated in Article IV, explicitly include:
“the right of taking fish and of whaling or sealing at usual and accustomed grounds and stations.”
The Neah Bay Treaty has since become a significant legal reference point for the protection of Makah whaling rights, especially after the introduction of more contradictory environmental protection laws.
Commercial Overfishing of the Gray Whale (1900s-1960s)
Following the Neah Bay Treaty of 1855, the Makah maintained their legal promise to only hunt whales for dietary and cultural necessities. Unfortunately, in the early 1900s, several commercial fishers on the West Coast realized the immense monetary value of whale products, in particular, oil concentrated from blubber.
The Pacific gray whale made the perfect target, as they prefer warmer waters and their migration patterns bring them near the coast. These commercial fishers made extremely irresponsible choices with no regard to population dynamics nor ecological preservation, including killing pregnant and nursing mothers and calves. Mothers only birth one calf at a time, so this unsustainable fishing model depleted the Pacific gray whale population to near extinction by 1950.
The commercially-driven, drastic population decline of the Pacific gray whale in the 20th century caused the enactment of two major legislative acts, both of which the Makah wholeheartedly supported in the name of repopulating their sacred animal.
National Environmental Policy Act (1970)
After the political activism movement began to gain momentum in the 1960s, 1970 kicked off a decade of significant development in American environmental policy. Alongside the establishment of the first national Earth Day, the year also marks the introduction of the National Environmental Policy Act (NEPA). NEPA outlines a series of federal environmental regulations required for official Environmental Impact Assessments (EIAs), or Environmental Assessments (EAs). Federal agencies must follow NEPA’s guidelines and submit an EIA for approval before making any decisions that could impact the environment, from accepting permit applications to implementing federal land management actions.
This piece of legislation comes into play later, when animal rights groups were looking for legal weaknesses in the Makah’s federally-granted whaling catch limit.
Marine Mammal Protection Act (1972)
On October 21, 1972, Congress enacted the Marine Mammal Protection Act (MMPA) to implement stricter wildlife management policies, including the criminalization of:
“the ‘taking’ of marine mammals – …harassment, hunting, capturing, collecting, or killing … in U.S. waters and by U.S. citizens on the high seas.”
Endangered Species Act (1973)
One year later, the Pacific gray whale was officially added to the Endangered Species List as a result of the Endangered Species Act (ESA) of 1973. The ESA created a framework for the federal identification of current threatened and endangered species, as well as protections that prohibit:
“the unauthorized taking, possession, sale, and transport of endangered species.”
The ESA also granted the U.S. government the right to prosecute any violations of this act and to assess the appropriate civil and criminal punishments. The addition of the Pacific gray whale to the Endangered Species List added yet another layer of legal protection against all whale hunting.
Since the 1920s, the Makah voluntarily suspended their sacred whaling traditions throughout this crisis without any external legal enforcement. This decision was an extremely difficult one to make, as ceasing to participate in this unifying practice would inevitably disrupt the social bindings of their tribe. Regardless, it was a temporary sacrifice they were willing to make for the long-term benefit.
Grey Whale Spy Hop With Eye Above Water. Photo: Joe McKenna
Delisting of the Gray Whale from the ESA (1994)
After federal intervention, the gray whale population finally began to recover after decades of overfishing. In 1994, the gray whale was removed from the Endangered Species List. It was after this celebratory moment that the Makah sought out to resume their whaling ceremonies.
However, the process of reclaiming their subsistence whaling rights proved to be more difficult to navigate than expected. They would come to find out there were contradicting legal allowances granted to them in the Treaty of Neah Bay (1855), the Marine Mammal Protection Act (1972), and the Endangered Species Act (1973).
IWC Approval of an Indigenous Gray Whale Catching Limit (1997)
The Makah Tribe worked in conjunction with the U.S. government and the Russian Federation, who represented the Chukotka Natives, the indigenous people of the Chukchi Peninsula in Northeast Asia. Together, they lobbied for the International Whaling Committee’s (IWC) approval of a gray whale catching limit for indigenous peoples.
They successfully managed to receive approval of the Makah’s first subsistence whaling catch limit, which allowed them to hunt four to five gray whales per year for the period of 1998 to 2002.
Makah’s First Whale Hunt in 75 Years (1999)
Finally, on May 17, 1999, a Makah whaling crew landed a gray whale in Neah Bay for the first time in over seventy years.
This ceremonious moment spurred a transformation within the tribal community – a complete renewal of ancestral energy. The event not only reintegrated whale products back into their daily lives, but also reduced the cultural gap between the older and younger generations. Decades of oppressive government policies, like residential schools, were designed to isolate tribal members from their language, community, and ceremonial practices.
These natives didn’t even cause the whale population decline in the first place, yet they, as the greatest economic and cultural stakeholders of the Pacific gray whale’s health, were punished for it. Ironically, the very legislative actions that the Makah initially supported were eventually used as ammunition against them.
They had no idea that their first legal whale hunt, after a painfully long hiatus, would also be their last.
In May 1999, the Makah Nation conducted its first successful whale hunt in over 70 years. Photo: Larry Workman
Anderson v. Evans (2002)
Despite overcoming the restrictions placed on them by the Endangered Species Act, the Makah Tribe’s battle for justice doesn’t end there.
Animal conservation groups hired legal counsel to appeal the U.S. government’s approval of the Makah whale hunting quota. In Anderson v. Evans (2002), the plaintiffs argued that the decision violated the National Environmental Policy Act of 1970 due to the government’s failure to provide an Environmental Impact Statement before approving the whale quota.
The court also ruled that Makah whale hunts violated the Marine Mammal Protection Act because whale “takings,” deemed illegal under the MMPA, were authorized in the Neah Bay Treaty – even though the treaty was written 117 years prior.
Although written law itself is relatively clear-cut and inflexible, the interpretation of law is fluid and can be manipulated with the right lawyers, argumentative delivery, political correctness, and price tag. For example, lawyer David L. Roghair published a 2005 comment, “Anderson v. Evans: Will Makah Whaling Under the Treaty of Neah Bay Survive the Ninth Circuit’s Application of the MMPA?,” effectively arguing in favor of the reverse decision. Just because a Western court of law ruled Makah whaling rights as illegal, doesn’t mean that the practice is inherently unethical, nor should it be criminalized.
Potential Legal Loopholes (Current Day)
To this day, indigenous subsistence whaling remains a prohibited practice under the Marine Mammal Protection Act. The International Whaling Committee has continuously renewed their approval of a five-whale annual catch limit in 2002, 2007, and 2012, but pluralistic legal powers have prevented the Makah from whaling again since 1999.
Not all hope is lost though. On September 23, 2021, Administrative Law Judge George J. Jordan drafted a 156-page recommendation to the U.S. Department of Commerce that argues for a Makah waiver under the MMPA. He argued that indigenous subsistence whaling would have a “negligible” impact on the overall gray whale population, so there is no legitimate reason as to why it should continue to be illegal. He outlined a schedule allowing the Makah to land up to three Eastern North Pacific gray whales every other year, over a 10-year period. This temporal alternation pattern would reduce the chance of Makah whalers accidentally wounding or killing an endangered Western North Pacific whale, as they follow different migratory patterns than their Eastern counterparts.
Ultimately, the final decision belongs to the National Marine Fisheries Service, a branch of the U.S. Commerce Department.
Emma Jimmicum, Ralph LaChester and Nora Barker at Makah Indian Reservation. Photo: J.W. Thompson
Charlie Swan, Sadie Johnson and Dicie Swan with a baby at Makah Indian Reservation Photo: J.W. Thompson
The Future of Indigenous Legal Rights
The majority of environmental policy committees at the local, federal, and international levels lack a key component: the indigenous perspective. Historically, their oral histories of ancestral knowledge and lived experiences passed down over millennia has been incompatible with the Western world’s definition of valid information. Native peoples understand subsistence on a much deeper level than Western societies, in a way that cannot be scientifically articulated. Despite having never produced peer-approved research on gray whale population ecology, the Makah have existed in harmony with local whale populations for over 3,800 years, Iong before Francis Bacon popularized the scientific method in the 16th century.
The larger issue here is governing bodies’ refusal to acknowledge that the evaluation of indigenous knowledge by Western standards is impossible and unproductive.
The institutional acceptance of this notion, paired with the implementation of indigenous representation on every land and ocean management executive board, will positively transform the environmental law and policy sector as a whole.