Feds Hold Hearing on Makah Whale Hunt in Seattle

On October 11, the National Marine Fisheries Service held its third public comment session in Seattle, Washington, to hear opinions about the request by the Makah tribe to once again begin harvesting small numbers of whales.

The Makah killed their first whale in 70 years in 1999, but subsequently the Ninth Circuit Court ruled it needed a formal exemption from the Marine Mammal Protection Act. The Makah have filed for such an exemption, and the NMFS has held public comment sessions as part of that process.

More than 100 people showed up for the session, most of the opposed to resumption of even small scale whaling. Animal rights activist Carol Janes, for example, told the Seattle Post-Intelligencer,

I travel a lot for my work, and it means something when I say I’m from Seattle. [People] know about Mount St. Helens and the Mariners. I don’t want that meaning to change to: ‘That’s the place where they kill whales.’

The Humane Society of the United States’ Kitty Block told the Seattle Times,

We are worried about the precedent this would set. This law has saved millions and millions of animal lives.

We don’t want to come across as anti-tribal. And I am not denying their treaty right. But what does this do to our marine-mammal protection? And it is not just conservation; it is a humane issue. There is no humane way to kill a whale.

. . .

We have developed relationships with these animals [through whale watching tours]. It’s like a bait-and-switch: We go out there to see them — I’ve seen footage where people are leaning over and touching them — and now they are leaning over with a harpoon. It breaks a trust relationship.

Makah and Native American activists appealed to their long history of hunting whales, and the treaty they signed with the U.S. government guaranteeing the tribe the right to hunt whales (the tribe voluntarily refrained from hunting whales for decades after commercial whale hunting caused a drastic decline in the number of whales).

David Sones, vice chairman of the Makah Tribal Council, told the Seattle Post-Intelligencer,

The animal rights groups would rather just see our culture disappear and that’s their right. But we really believe that we will get this waiver.

Bob Anderson, director of the Center for Native American Law at the University of Washington, noted that the current Makah predicament is a largely result of the tribe electing to work with federal officials in the mid-1990s instead of going its own way. Anderson told the Seattle Times

If they had gone out and just gone whaling, that would be allowed. By doing something they didn’t have to do, they triggered this federal action, and that resulted in the 9th Circuit ruling. Now the Makah are bound.

A final decision on the resumption of whaling by the Makah is likely years away, as once the National Marine Fisheries Service makes its decision on whether or not to grant a waiver that decision will be litigated for years regardless of which side the Fisheries Service comes down on.


Hearing shows Makahs, public divided over whaling rights. Claudia Rowe, Seattle Post-Intelligencer, October 12, 2005.

Makah Tribe seeks federal waiver to let it once again hunt for whale. Lynda Mapes, Seattle Times, October 11, 2005.

Third Makah whaling hearing draws 120 in Seattle. Jim Casey, Peninsula Daily News, October 12, 2005.

Makah Tribe Asks Congress for Exemption from Marine Mammal Protection Act

In February, the Makah tribe filed a request for a wavier from the Marine Mammal Protection Act so that it can legally hunt whales as its 1855 treaty with the United States guarantees it the right to do so. Apparently wanting to hedge its bets, the tribe has also approached at least one U.S. Senator and Representative asking for legislation that would exempt the tribe from the MMPA.

Makah Chairman Ben Johnson told the media in March that the tribe had contacted U.S. Sen. Maria Cantwell (D-Washington) and U.S. Rep. Norm Dicks (D-Washington) inquiring about the possibility of legislation that would exempt the tribe from the requirements of the MMPA.

Johnson told the Seattle Post-Intelligencer,

We’ve just talked to them a little at this point. Whether anything will come of it, who knows?

For opponents of the Makah, however, the MMPA is beside the point — they just don’t ever want to see a resumption of whaling, regardless. As The Humane Society of the United States’ Naomi Rose told the Post-Intelligencer,

For us, it’s a real simple equation: We do not want them hunting gray whales again, period.

Remember this the next time the HSUS claims it doesn’t oppose hunting on principle.


Makah try long shot: asking Congress to allow whale hunts. Lewis Kamb, Seattle Post-Intelligencer, March 21, 2005.

Makah officials ask Cantwell, other officials to waive marine mammal act for whaling, but no bill on table. Raul Vasquez, Peninsula Daily news, March 11, 2005.

Makah Files for Waiver to Hunt Whales

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.

Makah Loses Appeal

Last month this site noted that the Makah Indian Tribe was awaiting a judgment on its latest appeal in its quest to once again hunt whales. Earlier this month the Ninth Circuit Court of Appeals denied the tribe’s request for a hearing before the full court, leaving in place a decision by a three judge panel of the court halting the whale hunt.

The three judge panel ruled that the whale hunt is subject to the Marine Mammal Protection Act despite the tribe’s treat with the U.S. government guaranteeing it the right to hunt whales.

Obtaining a permit to hunt whales under the Marine Mammal Protection Act will requires a full-scale environmental analysis of the hunt and years of delay.

Fund for Animals director Michael Markarian told the Seattle Post-Intelligencer that,

The Court of Appeals has been emphatic on this point . . . and it’s obviously something the American public doesn’t want.

Makah tribal member Wayne Johnson, however, said of the ruling that,

It’s another treaty broken by the United States.


Court rebuffs Makah’s appeal over whaling. Lewis Kamb, Seattle Post-Intelligencer, June 8, 2004.

Makah whaling review denied. Christopher Dunagan, TheSunLink.Com, June 8, 2004.

Makah Await Result of Latest Appeal on Whale Hunt

In November 2003 a three-judge panel of the U.S. Ninth Circuit Court of Appeals ruled that the Makah would not receive a rehearing of the court’s December 2002 decision barring the hunt. In that decision, a three-judge panel of the court ruled that the Makah must apply for a permit to hunt whales under the Marine Mammal Protection Act.

In December the Makah filed an appeal asking the case to be heard by the full court of appeals. That appeal was rejected, but the court said the Makah could file another appeal, so on February 10 it formally requested that the court reconsider the decision blocking the whale hunt.

The answer to that appeal should come in the next month or two.


Tribe’s whalers await chance to hunt again. Lewis Kamb, Seattle Post-Intelligencer, May 17, 2004.

Makah whaling: Five years, it’s a court case. Peninsula Daily News, May 16, 2004.

Judge Dismisses Activist's Lawsuit Over Makah Injuries

In April 2000, Erin Abbott was one of a number of activists who used watercraft to dart in and out of an exclusion zone set up by the Coast Guard during the Makah whale hunt. Abbott’s watercraft collided with a Coast Guard boat that attempted to shield a Makah canoe in the exclusion zone.

Activists at the time likened the collision to attempted murder on the part of the Coast Guard and, incredibly, Abbott sued the Coast Guard over the injuries.

Not surprisingly, the Seattle Post-Intelligencer reports that a judge has dismissed Abbott’s lawsuit saying that she was “wholly responsible” for the injuries she sustained.

According to the Post-Intelligencer, Judge Franklin Burgess said in his ruling that,

Ms. Abbott thus not only intentionally violated the MEZ (exclusionary zone), which she knew was in effect, and pled guilty to negligent endangerment of life at sea, and violated the rules of the road, but she violated safe operating practices, good seamanship, federal regulation and common sense in making high-speed passes with a personal watercraft in the vicinity of a canoe, a vessel engaged in a completely lawful activity in the open ocean with little freeboard.

Abbott was sentenced to just 120 hours of community service on the negligent endangerment charge.


Judge throws out whaling protester’s lawsuit against Coast Guard Seattle Post-Intelligencer, September 6, 2003.