After failing in its efforts to get its whale hunt exempted from the provisions of the Marine Mammal Protection Act, the Alaskan tribe has decided to take a new tack and comply with the MMPA by filing a request for a waiver under the MMPA.
The Makah tribe’s 1855 treaty with the United States allows it to hunt whales, but the tribe voluntarily abandoned the practice early in the 20th century. About six years ago it began hunting whales again, and members of the tribe managed to kill a whale in 1999.
After a series of lawsuits by animal rights activists, however, federal courts ruled that the Makah needed to comply with the provisions of the Marine Mammal Protection Act. Last June the Makah lost an appeal in the matter and apparently rather than go on to a higher court have decided to comply with the MMPA and file a request for a waiver to kill a small number of whales.
In February the Makah filed a 55 page application with the National Oceanic and Atmospheric Administration requesting a waiver. This is likely a long, uphill effort as apparently such a waiver has never been granted for hunting whales since the MMPA went into effect in 1972. The state of Alaska and a North Carolina company are the only two entities who have apparently ever applied for a waiver, and both withdrew the waiver request before the request had reached the approval stage.
On the other hand, the NOAA is emphatically behind the Makah’s right to hunt a small number of whales. NOAA spokesman Brian Gorman told the Seattle Post-Intelligencer that,
The bottom line is, we support the tribe’s treaty right to hunt whales. [But] It’s going to be a long process. I don’t think anyone is fooling themselves about that. We have to take this very carefully. There’s almost a certainty that we’ll be sued.
Animal rights activists are likely to make an argument that the Humane Society of the United States was already hitting — since no one has ever received an exemption under the MMPA to hunt whales, granting the Makah such an exemption would set a dangerous precedent. The HSUS’ Naomi Rose told The Seattle Post-Intelligencer,
This could absolutely be precedent-setting. If they win (a waiver to the law), it’s not just the Makah that will be impacted. This will lay the ground rules for anyone who tries to seek an exception to go whaling in the future. So yes, we’ll definitely dog the process.
While the waiver application is wending its way through the approval process, the NOAA will be simultaneously conducting an environmental impact study, which is required by the MMPA. I don’t think the issue is whether or not the NOAA will approve the waiver. The NOAA clearly believes that the small number of whales the Makah plan to take won’t come close to harming the gray whale population. The long-term issue will be whether or not such approval can survive the inevitable lawsuits.
Makahs will seek whaling waiver. Lewis Kamb, Seattle Post-Intelligencer, February 14, 2005.