Makah Nation whale hunt up for public comment

Environment | Law

Monday, May 12, 2008

The federal government is once again asking the public to comment on the Makah Nation's controversial whale hunt.

The tribe is the only one in the U.S. with a treaty-protected right to hunt whales. "The right of taking fish and of whaling or sealing at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the United States," the 1855 Treaty of Neah Bay states.

The tribe, however, suspended the hunt in the 1920s due to worldwide exploitation of the gray whale. The whale was later placed on the endangered species list.

In May 1999, after the gray whale population rebounded, the tribe resumed the hunt and successfully landed a whale. But environmental activists went to court to block future hunts.

The anti-whaling effort culminated in a key decision from the 9th Circuit Court of Appeals. In a final ruling from June 2004, the court said the Marine Mammals Protection Act applies to the hunt even though the law doesn't mention the Makahs or their treaty.

"We simply hold that the tribe, to pursue any treaty rights for whaling, must comply with the process prescribed in the MMPA for authorizing a 'take' because it is the procedure that ensures the tribe's whaling will not frustrate the conservation goals of the MMPA," Judge Marsha S. Berzon, a Clinton nominee, wrote for the majority

"The tribe has no unrestricted treaty right to pursue whaling in the face of the MMPA," Judge Ronald M. Gould, another Clinton nominee, wrote elsewhere in the opinion

The decision prompted the tribe, in February 2005, to apply for a waiver to hunt a whale under the MMPA. The National Marine Fisheries Service, an agency of the Department of Commerce, has been working on the issue for more than three years.

The already controversial process became more so last September when five tribal members took to the waters in Neah Bay and shot and killed a gray whale. The tribe and the federal government charged the men with violating tribal and federal laws.

The incident again spurred calls to end the tribe's hunt once and for all. Tribal leaders, in fact, were worried that the federal review process would come to an end.

But the NMFS on Friday issued a draft environmental impact statement that moves the agency towards a final decision on the matter. The lengthy document identifies six alternatives, including a "no hunt" option.

Under the remaining options, the tribe would be able to hunt up to four whales a year over a five-year period. The draft EIS identifies ways in which the hunt could be limited.

As part of the process, the NMFS will hold three public meetings on the draft EIS. They take place May 28 and June 2 in Washington state and June 5 in Silver Spring, Maryland.

Written comments are also being accepted until July 8. The NMFS will then decide whether to issue a permit to the tribe. A similar one has been granted to Alaska Natives, who don't have a treaty protecting their hunt.

As for the five rogue hunters, three pleaded guilty in federal court and two were found guilty in federal court for hunting without federal approval. The five still face punishment in tribal court, though the most serious charge against them was dismissed last month.

Relevant Documents:
Draft EIS on Makah Whale-Hunting Request | Q&A

9th Circuit Decision:
Anderson v. Evans (June 7, 2004)