Court Orders Halt to Makah Whale Hunt

In a case likely to end up in the Supreme Court, a three judge panel of the 9th Circuit Court of Appeals halted a planned Makah whale hunt. The panel ruled that the National Marine Fisheries Service had failed to provide an adequate environmental assessment in allowing the whale hunt to go forward.

The Fund for Animals and the Humane Society of the United States had sued the NMFS to overturn a lower court’s ruling allowing the hunt to go forward. Fund for Animals president Michael Markarian told the Seattle Post-Intelligencer that he was,

. . . elated that the court has put a stop to this illegal and inhumane whale hunt. This court decision upholds the MMPA, which is a sweeping conservation measure to protect marine mammals in the U.S.

This victory, however, is likely to be short lived. The Makah intend to appeal the decision to the full 9th Circuit Court and to the Supreme Court if necessary.

And they are likely to succeed. There’s a reason the 9th Circuit Court of Appeals is overwhelmingly the most overturned circuit court in the nation — because it consistently issues rulings like this that completely ignore its own and the Supreme Court’s established precedents.

As Bob Anderson, professor of law at the University of Washington, told The Post-Intelligencer,

It [the decision] is an unprecedented break with how every other court has analyzed general statutes and treaty rights. It seems flatly wrong on the Indian-law component of the analysis. They are definitely stretching to find federal regulatory authority to limit treaty rights when the Supreme Court has said that you have to find clear evidence that Congress intended to do so.

And, as Anderson points out, Congress made the Makah case for it in 1994 when it amended the Marine Mammal Protection Act to read, among other things, that “nothing in this act . . . alters or is intended to alter any treaty between the U.S. and one or more Indian tribes.”

Only the 9th Circuit Court would infer from that that Congress meant to limit the Makah’s treaty rights.


Court stops Makah whale hunt. Paul Shukovsky, Seattle Post-Intelligencer, December 21, 2002.

Court stops Makah whale hunt. Fund for Animals, Press Release, December 20, 2002.

Animal Rights Groups Fail to Stop Makah Whale Hunt

For the second time in recent months, animal rights activists have failed to get a permanent injunction to prevent the Makah tribe from conducting a whale hunt this summer.

In May, U.S. District Court Judge Franklin Burgess denied efforts by The Fund for Animals, Humane Society of the United States, and other groups to obtain an injunction against the whale hunt. Among other things, the groups claim that the hunt violates the National Environmental Policy Act and the Marine Mammal Protection Act.

At the recent meeting of the International Whaling Commission, the Makah were granted the right to kill up to four whales per year.


Court Again Rejects Effort To Prevent Whale Hunt. David Fisher, Seattle Post-Intelligencer, June 8, 2002.

Judge Issues Temporary Restraining Order in Makah Whale Hunt Dispute

A federal judge granted a 10-day restraining order barring the Makah Indians from hunting any gray whales pending a May 15 hearing on the matter.

At that hearing, U.S. District Judge Franklin D. Burgess will hear arguments from The Fund for Animals on their request for a preliminary injunction barring the Makah whale hunt until a lawsuit it has filed has been settled one way or the other.

Under the provisions of a treaty the Makah signed with the United States in 1855, the Makah retain rights to hunt whales. After the gray whale was removed from the Endangered Species List in 1994, the Makah sought to resume hunting them.

In 1999, they resumed hunting and managed to kill a whale. The tribe also hunted in 2000, but did not manage to kill any whales.

In 2001, Makah whale hunting was suspended for a year after anti-whaling forces successfully sued and a court ordered the National Marine Fisheries Service to draw up a study of the environmental impact of the limited Makah whale hunt. That initial success turned into a nightmare for anti-whaling forces when the report not only said that hunting five whales would not impact the population of 26,000 gray whales, but also extended the area where the Makah could hunt.

The Fund for Animals and other groups are now challenging that report in court, arguing that the study was not done properly.


Federal judge grants temporary restraining order against whale hunt. Elizabeth Murtaugh, Associated Press, May 4, 2002.

Makah ordered not to whale for at least 10 days. KomoTV.Com, May 3, 2002.

Makah Might Receive Quota-Free Whaling

Back in July the Makah tribe won an important victory when the National Marine Fisheries Service released the results of a study of the gray whale population — a study which was conducted only because of a successful lawsuit by anti-whaling opponents. While anti-whaling activists hoped the study would find a smaller-than-expected gray whale population, what it found was the species population was larger than it had been since commercial whaling began in the 18th century. Now the Fisheries Service is beginning plans to set a new quota for the Makah for 2003-2007, which might end up being no quota at all.

Brian Gorman, a spokesman for the Fisheries Service’s Northwest regional office, said there were four alternatives that would be assessed. The first three alternatives would give the Makah a quota of five whales per year for five years, with the differences between the three alternatives being what, if any, restrictions there would be on the time and place that the whales could be killed.

The fourth alternative being assessed is simply allowing the Makah to hunt without any quota or restrictions at all (and considering the tribe has managed to kill only one whale since it resumed hunting in 1998, it’s not like the tribe is going to be seriously threatening whale numbers).


U.S. sets stage for whaling through ’07. Brenda Hanrahan, Peninsula Daily News, November 27, 2001.

PETA: Eat The Whales

People for the Ethical Treatment of Animals launched its latest campaign in London over the weekend, urging people to eat more whale meat.

PETA’s Bruce Friedrich showed up at the 23rd International Whaling Commission meeting, where the international ban on whaling was the topic of much heated discussion. Iceland, Japan and Norway want to abandon the ban and threatened to begin commercial whaling with or without international agreement.

Which would be fine with Friedrich who said he would prefer that people converted to vegetarianism, “but meat addicts who won’t try to kick their habit would cause a lot less misery by abandoning their cultural aversion to eating whales.”

According to Friedrich, “If you’re not vegetarian you are responsible for far more suffering and deaths than one Japanese or Norwegian whaler.” Friedrich also suggested that people should stop eating “chicken nuggets and haddock fillets in favor of whale whoppers.”

Anti-whaling groups weren’t amused, with The Times (London) quoting an unnamed whaling opponent as calling the PETA protest an “irresponsible publicity stunt” (which is the best three word summary of PETA I’ve seen yet).

No word on what whaling representatives from Iceland, Japan and Norway thought about PETA’s claims, but at least the Makah will now have PETA in its corner when animal rights activists try to disrupt their upcoming whale hunt.


Outrage at ‘eat whales’ campaign. Chris Bunting, The Times (London), July 23, 2001.

People urged to eat whale meat. Hugh Muir and Peter Gruner, This Is London, July 23, 2001.

Whaling ban under threat. CNN, July 23, 2001.

The Makah Get Their Whale, Endure Invective from Activists

The long-running controversy
over the Makah‘s efforts to restore tribal traditions by Hunting a whale
ended recently when the tribe finally managed to get its whale. The Makah
had voluntarily abandoned whale hunting earlier this century, but reserved
the right to resume the practice under provisions of a treaty with the
United States.

The fascinating thing about
the controversy was how quickly environmentalist and animal rights activists
devolved to threats and racist slurs against the Makah. Usually environmentalists
extol the virtues of indigenous cultures, contrasting them with the evil
patterns of consumption and exploitation supposedly unique to Western
culture. But once the Makah deviated from this New Age fantasy, they were
shown little mercy from activists.

There were the death threats
against individuals as well as bomb threats called in to the Makah reservation
school. T-shirts were sold with the slogan “Save a whale, kill a Makah.”
At protests against the hunt, activists were heard calling the Makah “savages.”

The Seattle Times published
a lengthy story printing about a dozen of the more-racist anti-hunting
letters it received. One letter concluded, “these people want to rekindle
their traditional way of life by killing an animals that has probably
twice the mental capacity they have.” Another suggested that, “we should
also be able to take their land if they can take our whales.” Or consider
this gem of a letter that complained, “Natives were often referred to as
‘savages,’ and it seems little has changed.”

As Alexandra Harmon, an assistant
professor at the University of Washington American Indian Studies Center
put it, “Again and again in American history, non-Indian Americans have
demanded that Indians act or live in some way other than Indians have
chosen. The current Makah story is a lesson about how had it is to recognize
and resist that same ethnocentric impulse today.”


E-mails, phone messages full of threats, invective. Alex Tizon, Seattle Times, May 23, 1999.