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.

Study Calls for End to Ban on Commercial Whale Hunting

A study published in the journal Science in January called for an end to the 19-year-old ban on commercial whaling.

The International Whaling Commission asked biologists Leah Gerber of Arizona State University, David Hyrenbach of Duke University, and Mark Zacharias of the University of Victoria to determine whether or not existing whale sanctuaries would be adequate to protect whales if commercial hunting resumed. The three received no funding from any entity for the study, however.

The study looked specifically at the Southern Ocean Sanctuary, which is one of two sanctuaries created by the International Whaling Commission.

The argument the three make in their paper is this: significant numbers of whales in the sanctuaries are already killed under provisions allowing nations to kill whales for scientific study. Moreover, if commercial whaling is not restored, nations could end up taking more whales for scientific purposes than would be ideal for managing the whale population.

The study argues for ending scientific permits and replacing it with a tightly controlled system of commercial whaling that would ban hunting during certain times of the year, such as when whales are breeding. The scientific permit system currently in place has no such restrictions.

Zacharias was quoted by the Canadian Press as saying that the sanctuaries are political rather than scientific in nature and are less than ideal given the reality of ongoing hunting for scientific purposes,

The moratorium has really done its purpose. It has allowed a lot of stock to recover. However, the problem now is that most of the world and the public believe there is no commercial and aboriginal whaling going on, but whaling under scientific permit is continuing and is continuing in the sanctuary.

. . .

We full expect to take a lot of heat for this . . . People are going to say, ‘You’re suggesting that we’re resume global whaling?’ Yes, we are suggesting that, but it’s better than the alternative, which is pretending it doesn’t happen.

I imagine, however, that Zacharias and his fellow researchers will be very popular in Japan.

It will be interesting to see what, if any, this report has on the next IWC meeting when Japan and other nations again attempt to end the commercial whaling moratorium.


Replace ban on whaling, study urges. Steve MacLeod, Canadian Press, January 28, 2005.

Japanese Fisheries Official Says Whaling Is a 'Right'

Masayuki Komatsu, a senior Japanese Fisheries Agency official and delegate to the International Whaling Commission, said in September that whaling is a right and an important part of Japan’s cultural heritage.

Reuters reported that Komatsu told a gathering of journalists,

Eating whale is a key part of Japanese culture. . . . There are so many robust whales stocks, such as minke whales, the sei whale, the Bryde’s whale. . . . Sperm whales are rampant. They may be around twice the number of minke whales.

Komatsu has previously referred to minke whales as “cockroaches of the sea” and explained to his statement to journalists thusly,

There are two characteristics. One is that there are so many of both of them. And the reproduction rate for those two animals is very rapid. That’s why I said a minke whale is like a cockroach.

Komatsu noted that the Japanese government has already commissioned studies on what the impact would be if Japan decided to abandon the International Whaling Commission which so far has refused Japanese efforts to overturn the two decade ban on commercial whaling, but that no decision had been made yet on whether Japan would withdraw from the organization if it should again fail to overturn the ban at the 2005 IWC meeting.


Japan says whaling a right. Elaine Lies, Reuters, September 15, 2004.

CITES Rejects Japan's Whale Appeal

The Convention on International Trade in Endanger Species (CITES) this month rejected a request by Japan to remove minke whales from the CITES Appendix I list of threatened species in which international trade is prohibited.

Japan had filed an appeal with CITES seeking to have minke whales moved to the CITES Appending II, in which highly regulated trade of an endangered species is permitted.

In a news conference, CITES secretary general Willem Wijnstekers said that the proper place to take up whale-related issues was the International Whaling Commission and that as long as the IWC’s ban on commercial whaling remains in place, so will the Appendix I listing of whales.

Wijnstekers said,

As long as the International Whaling Commission maintains a zero-catch quota for commercial reasons in its management of minke whales, then the best way to coordinate that level of protection within CITES is by maintaining the species in appendix I.


CITES rejects Japanese call for partial end to ban on whale trade. Agence-France Presse, June 14, 2004.

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.