Deb Cline
The Hunting of the Gray Whale: The Makah Indian Nation’s Continuing Struggle to Maintain Cultural Traditions Within a Modern Global Society

“People of the Cape”
(Sullivan 2000:23)It was a spring evening in 1909 in the tiny village of Neah Bay on the very northwestern tip of the Olympic Peninsula when the young Makah prepared for his ceremonial whale hunt. The moonlight reflected off the icy watersof the Pacific Ocean as the Makah enters the water unaware of the temperature. On the cold, wet ground lie barnacles and mussel shells among twigs and leaves, carefully selected for his ceremonial bath. Ceremonial prayers echoed and whispered into the cool, still evening as the young man chants and rubs his skin raw using the shells and leaves. Skeletons and skulls lined the soft dirt outside of the cedar longhouse nestled within the village. As morning begins, dressed in a coat made of bear skins and braided hair pulled back against his neck, the Makah sets out to join the awaiting crew. Under his arm rested a work of art, a sharpened harpoon made from elk antler and bone fastened to a line of whale sinew coated in cherry bark. The harpoon head covered in spruce tree gum encased in cedar bark is delicately decorated in grass. The Makah sets out 30 miles off shore in his cedar canoe with attached seal skins in pursuit of the gray whale. The chanting of soft prayers by the men of the tribe could be heard over the paddling as the canoe made its way from the village into the ocean. The women of the village wait quietly and in anticipation of ceremonial potlatch.

Over 70 years have passed since the last hunt of the gray whale was celebrated by the Makah Indian Tribe. On May 17, 1999, armed with a .577 high caliber powered rifle, a 30-foot canoe, and a steel harpoon, decedents of the Makah resurrected their cultural tradition of hunting the whale. The gray whale shot and eventually beached was a 30-foot female approximately seven tons. Back on shore, descendents of the Tribe at Neah Bay cheered as they prepared for a ceremonial potlatch and celebration.

Should a 1500-year Native American tradition, unique to a Pacific Northwest tribe, be maintained in a modern day global society even if it means killing a mammal once near extinction? It may be hard to imagine why a Northwest tribe would desire a return to their native tradition of whaling not practiced in over 70 years. To understand the question and the complexities associated with it, would mean to understand the history behind the culture of the Makah Indian Tribe and the strong opposition of the political and environmental concerns.

The history of Makah whaling dates back to somewhere around 1500 years ago. Hunting of the whale is what uniquely identifies and defines the Makah as the “Makah” among all other Northwest tribes living along the northwest coast of Canada. (Sullivan 2000:13) The Makahs have a unique history as “great whalers and fisherman” among indigenous coastal peoples of British Columbia and Washington. (Ringuette and Porter 2000:1)

An abundance of marine life including seals, salmon, halibut, shellfish and most importantly the annual migration of aboriginal whales in the area encompassing Neah Bay and the Straits of Juan de Fuca have long provided and sustained the needs of the Makah for several generations. Ethnography written in 1870 by James G. Swan, who lived among the Makahs for many years said this about the Makahs:

“I have seen them occasionally run foot-races on the beach, climb poles set up for the purpose, and swim and dive in the bay, but they do not excel in any of these athletic exercises. They do excel …in the management of canoes, and are more venturesome, hardy, and ardent in their pursuit of whales, and in going long distances from the land for fish, than any of the neighboring tribes. They are, in fact, to the Indian population what the inhabitants of Nantucket are to the people of the Atlantic coast, being the most expert and successful in the whale fishery of all the coast tribes.” (Sullivan 2000:47 and Swan 1868)

Aside from the subsistence the whale brought to the inhabitants of the village at Neah Bay, the Makahs had well-established themselves in the early 19th Century as the “kingpins of a vast trading network.” (Collins 1998:7) Ancestors of the Tribe became major contributors of maritime trade north and south of the Pacific Northwest because southwestern tribes rarely came across to the Straits, while island tribes did not travel as far south as of Cape Flattery. Therefore, the Makah’s primary wealth remained largely in commercial whaling and whale products, specifically whale oil, thus, finding their “niche” in the network economy. Other important contributions to the trade network were all types of marine life that included large amounts of dried halibut and blubber. While the meat of the whale was dried for the winter, the oil in and of itself played an important role in trade among neighboring coastal peoples. (Collins 1998:7) In fact, it was estimated by Swan in the 1850s that the Makahs produced and sold 30,000 gallons of whale oil yearly to European traders.

They are, in fact, to the Indian population what the inhabitants of Nantucket are to the people of the Atlantic coast, being the most expert and successful in the whale fishery of all the coast tribes.” (Sullivan:47)

Prosperity continued in whaling for the Tribe until the 1920s when the demand for whale oil decreased because sealing became more profitable. Sealing provided another economic resource for the Tribe. Commercial whaling also contributed to the decline in whaling and near extinction of the eastern Pacific gray whale population. (EA 2001:2) Whaling was abandoned for a period of time and the Tribe was then forced to rely on other food sources.

Prior to European domination, the Makahs maintained a high culture. They were a happy contented people, living off forest and sea, making the most of their natural resources and using those resources in creative ways. They stored rations of fish and berries for winter consumption and developed a system of sharing that provided for the entire village. Cedar also served as a major resource for housing, transportation (canoes), and clothing. (Tinkam 1971:20-22)

The establishment of European-American capitalism marked the turning point for the Makah in the struggle to maintain their native ways. To their credit, the Makahs made concerted efforts to adapt themselves into the mainstream society, learning that without conformance, would make them dependent and create deprivation (Collins 1998:2). The Makahs learned English, wore “white man’s clothing” and tried adapting to more modern ways of life. They were put on reservations, forced to have their children attend boarding schools, and abandoned their native language, but they never really lost sight of their native culture. They were given agricultural equipment by the Bureau of Indian Affairs (BIA) to begin farming on land that proved agriculturally unsuitable. Introducing the Tribe to tools proved unsuccessful as a means of transforming the Makah as they “tore tines off pitchforks to make halibut hooks and turned sickles into arrowheads.” (Ringuette and Porter 2000:3)

A history of broken promises and a serious distrust of BIA agents, contributed greatly to distrust between the Tribe and the United States. After the 1855 treaty, Governor Stevens promised to send more modernized equipment for fishing and whaling, but that never transpired. (Collins 1998:4) According to C.A. Hunnington, U.S. Indian Agent, in a report dated Sept 5, 1874, his job was made impossible because of Tribe’s distrust in white man’s promises. Money that was meant to be disbursed for the tribe for agricultural programs was actually embezzled by the previous Indian agent. Therefore, his job was made more difficult because of “the good faith of all white man is doubted.” (University of Washington Library 1874:329-330)

Assimilated into the mainstream, after ceding their land in 1855, the Tribe continued to assert themselves in whaling, sealing, and fishing as their ancestors had, which allowed their self-preservation and maintained their cultural identity.

The Tribe continued to prosper until smallpox nearly decimated the entire population in 1853 leading to economic hardship and social dislocation. According to George Gibbs, ethnologist, in 1805-1806 the Tribe’s population was estimated at 2,000. In 1853, their number was around 500. Other recordings by James G. Swan were reported at 435 in 1905, 407 in 1937, and slightly higher at 550 in 1950. In 1985, tribal membership was recorded at 919. (Ruby and Brown 1992:125-128 and Swan 1868)

Treaty Rights and Cultural Renewal
What initiates a return to the Makah’s native tradition of whaling after so many years, and what are the laws that allow the Tribe to continue that tradition? It was the archeological dig of a whaling village at Ozette uncovered in the 1970s from a mudslide 400 years prior that prompted a return to whaling for the Makahs. Ancient artifacts uncovered “…reawakened the Tribe’s interest in and appreciation for its heritage…especially for the role whaling played in its society.” (EA 2001:47 and Renker 1997) It was hoped that a return to whaling would bring a renewed energy to the Tribe long lost after economic hardship. In 1995, a request was made by the Tribe to the U.S. government of its interest to a return of their native tradition of whaling. The Makahs believe they have a treaty right to commercial whaling, but have limited their request for whaling to ceremonial and subsistence need.

Ariticle 4 of the Treaty of Neah Bay secures the “right of taking fish and of whaling or sealing at usual and accustomed grounds and stations.” (Treaty of Neah Bay 1855, Article 4). In fact, it is the only treaty in the United States of its kind outlining provisions extending a Native American tribe whaling rights.

Well before the treaty was signed, the Tribe’s land actually extended further back on the north side of the peninsula almost to where Port Angeles is today. The land which the reservation occupies today is located on the very northwestern tip of the Olympic Peninsula with an east jetty tip that directly faces the Pacific Ocean. The “Cape” [Flattery] itself belongs to the United States War Department along with neighboring islands. Just east of the Cape and south of the islands, extending six miles in both directions belongs to the reservation. (Colson 1974:27)

The treaty continues today as the main source of law and is used as argument by tribal lawyers and tribal leaders for the Makah’s legal whaling right. From their point of view, “The right to whale was in a way, the final test of the treaty, proof that it was still a valid document.” (Sullivan:22)“

…the Treaty of Neah Bay secures the ‘right of taking fish and of whaling or sealing at usual and accustomed grounds and stations.’”(Article 4, 1855 Treaty of Neah Bay)

Environmental Impact on the State of Washington
Reasserting the whole issue of whaling by the Makahs carries a considerably amount of environmental responsibility on the part of the United States. In maintaining that responsibility and in response to the Ninth Circuit Court’s request for an environmental impact statement on the state of Washington, a report was issued in July of 2001 by the U.S. Department of Commerce National Oceanic and Atmospheric Administration National (NOAA), National Marine Fisheries Service (NMFS). The report summarizes and addresses the environmental impact, safety issues, and any threats to humans in maintaining aboriginal subsistence by the Makahs in the State of Washington.

Basically, there were four environmental alternatives proposed before the final decision was articulated. Listed below is the preferred alternative by the NMFS:

Alternative 1 grants the Makah Tribe by “the International Whaling Commission (IWC) quota of five whales a year for ceremonial and subsistence purposes in 2001-2002, however, with restrictions up to and including limiting the hunt only to the “Pacific coast feeding aggregation.” (EA NOAA 2001, p. 10).

The most influential body outlining the final factors of the quota of the gray whales to the Makahs is the International Whaling Commission (IWC). The U.S. Commission established in 1946, is the delegating authority on protection rights of commercial whaling. Governments who contract with the Commission also serve on the IWC. The IWC acknowledges aboriginal whaling as a “distinct category of its own separate from commercial whaling and exempt from the current moratorium on commercial whaling.” (EA Report, p.2).

Quotas used by the IWC for aboriginal subsistence whaling are based on the premise of cultural and subsistence need as long as the supply is plentiful. However, no formal definition of aboriginal subsistence currently exists within the Commission only “working group guidelines” used as a framework. (EA Report p.2).

The preferred alternative specifically outlines the Makahs’ actions on hunting the gray whales to five whales or seven whale strikes, whichever comes first in one calendar year. Regulations established by the IWC and NMFS prohibit the killing of a whale calf or female within proximity by a “mother – calf.” Distribution of the whale meat is limited to the Makah’s ceremonial and subsistence use only with commercial use strictly forbidden. Alternatives 2 and 3 had similar outcomes, however, with targeted migration of whales within certain areas of the Pacific Coast and without federal restrictions of time and place. Alternative 4 denied the Tribe completely. (EA 2001:10)

Past environmental assessment (EA) reports were conducted by the NMFS which analyzed the environmental effects on whether a decision to support whaling and the effects of issuing a quota of up to five North Pacific gray whales would have a negative impact on the human environment. Findings of the Final EA Report dated October 17, 1997 revealed no significant impact to the state of Washington. (EA Report 2001 p. 8-9).

Following this report, and in that same month, a lawsuit was filed by U.S. Congressman Jack Metcalf of the Breach Marine Protection department (Metcalf v. Daley) along with several others claiming violation of the National Environmental Policy Act (NEPA) and other statute violations. The outcome of the lawsuit ruled in favor of the U.S. government followed by a decision by the U.S. District Court. An appeal however, was filed in the Ninth Circuit Court. Consequently, the overturning of the decision of the EA report severed the agreement with the Makah Tribe on August 11, 2000.

Legal Aspects and Federal Responsibility
The United States has the federal responsibility for finding a balance between preservation of wildlife and maintaining Indian treaty rights. The 1855 Treaty of Neah Bay and the 1946 International Convention for the Regulation of Whaling (ICRW) adopted by the IWC hold the U.S. accountable to the Makah’s whaling rights. The U.S. must meet its obligation to the Makahs and ensure that whaling activity does not cause harm to the existing stock of gray whales. Such groups such as the Marine Mammal Protection Act (MMPA) along with the NMFS maintain the responsibility of marine mammals. These two groups have the responsibility of overseeing 147 stocks of whales, in particular, the eastern North Pacific gray whales, and other sea mammals such as seals, sea lions, fur seals, and porpoises. (EA 2001, p. 7). However, the MMPA does not have the authority to adjudicate Indian treaty rights.

The NMFS has no objection to Indian tribes harvesting marine mammals so long as there are no conservation issues at that time. The eastern North Pacific gray whales were removed officially from the Endangered Species Act (ESA) list of Endangered and Threatened Wildlife and Plants in 1994. (EA 2001:8) Following the removal from the list, the NMFS was charged with follow up responsibility on the stock over a five-year period. In August of 1999, the report of the NMFS’s Gray Whale Monitoring Task Group completed their five-year report and recommended continuance of the stock’s classification as “non-threatened.” (EA 2001, p.8). A petition was filed by D.J. Schubert in response to the NMFS’ report requesting the eastern North Pacific gray whale be listed again as threatened endangered species under the ESA. In spite of the petition, the NMFS could find no substantial reason to re-list the eastern North Pacific gray whales.

An important part of the Makah Tribe’s Usual and Accustomed (U&A) environmental grounds is the Olympic Coast National Sanctuary located just south of their reservation on the Olympic Peninsula. This area is designated as the most pristine area of water essential to biological and marine life and connects with Olympic National Park and U.S. Fish and Wildlife Refuges (USFWS). It also serves as a wonderful resource of Indian culture and history that encompasses Indian village sites, ancient canoe runs, and Indian artifacts. The Sanctuary is within proximity of four Native American Indian Tribes: Quileute, Hoh, Quinault, along with the Makah Indian Tribe’s U&A. The Sanctuary is protected by federal agencies such as the NMFS and the USFWS, and also recognizes and honors the pre-existing treaty rights of whaling by the Makah Indian Tribe.

The responsibility of public safety and whaling participants relies and is addressed by the Coast Guard. The Coast Guard has established a regulated navigation area on the northwest Washington Coast that places restriction on various vessel activities. In the case of the Makah whaling activities, the issue of public safety and potential danger and loss of life are addressed by the regulated navigated area (RNA) under the direction of the Coast Guard. Interruption of routine naval activity is not affected unless it falls within the immediate proximity of the whale hunt. A zone is established during whaling called the moving exclusionary zone (MEZ) for the entire time a whale is hunted. During a whaling hunt, with the exception of the media and Coast Guard authority, all vessels and persons are prohibited. (EA 2001:15)

Management Plan by the Makah
The Makah Tribal Council maintains a very responsible management plan as outlined by the IWC together with Article 4 of the Treaty at Neah Bay and in compliance with the International Convention for the Regulation of Whaling (ICRW)

Schedule Amendment.
The Tribe will maintain some of the traditional methods for hunting the whale with the exception of a .50 caliber rifle and a stainless steel harpoon mounted on a wooden shaft. Before arriving at the decision of using a rifle, the Makahs had worked with Dr. Allen Ingling, a veterinarian at the University of Maryland and representatives of the National Marine Fisheries Service and the National Marine Mammal Laboratory. The rifle provides a quick death and is a more humane eliminating suffering to the whale. (Makah Management Plan 1998-2002:D6)

The Tribe intends to share their “five-year aboriginal subsistence quota of 620 whales with the indigenous people of Chukotka, Russia.” (Makah Management Plan 1998-2002:1) The overall success of the Tribe in obtaining the quota is due to the cooperation and support of whalers from not only Russia, but Alaska as well, who agreed to reduce to their shared amount of gray whales in an effort to reduce worldwide quotas. (Tweedie 2002:139)

The Opposition
Does the issue of whaling seem to fit within a global society? There are the usual animal rights groups such as Greenpeace and PAWS that object to the whole idea that killing an intelligent mammal is brutal and inhumane. And, too, critics of Makah whaling say that a return to whaling is no longer justifiable for the purpose of subsistence in providing for the Tribe at Neah Bay. However, one of the most compelling political issues facing the Makah’s return to whaling, is that it may reopen the case of international whaling once again by whaling countries such as Russia, Japan, Norway, and Iceland who would love to expand whaling globally. These whaling nations use the term “scientific research” to disguise commercial hunting and may use the Makah’s return to whaling as political exploitation for adding “cultural need” to their agenda. Japan, along with other countries, have pressed hard internationally for some type of management whaling plan since some whale populations are no longer endangered -- although some scientists would disagree. However, current moratorium established by the IWC in 1946 prevents commercial whaling worldwide. An important point made by Japan at the 1999 annual IWC meeting was that United States had endorsed the continuance of the Makah’s current hunt in May 1999 and subsidizing it with $310,000 in grant money, but continued to oppose the tradition of Japanese whaling. Japan offered the Tribe financial assistance in support of the May 1999 hunt, however, members of the tribe respectfully declined. (Walker 1999:1)“…the Makah and their situation is being exploited by the cynical forces of industrial whaling.”(Greenpeace 1999:2)

Some important points brought forward by Peter Walker, Assistant Professor of Cultural and Political Ecology and Human Environmental Relations at the University of Oregon’s, Department of Geography, is whether the tradition of whaling should be continued. Examples, he notes are that slavery was a long standing tradition among Europeans until it was viewed as unacceptable by society. The Chinese as part of their ancient tradition, bound the feet of women, and that some African societies mutilate female genitalia as part of their long-standing traditions. (Walker 1999:2) While these examples cannot compare to the Makahs treaty rights of whaling, is the Tribe willing to let go of traditions that may no longer have relevance in today’s society? Cultural traditions are sometimes faced with modern realities. The Japanese chose isolation until Commodore Perry forced them to accept trade agreements. This eventually led to modernization during the Meiji era. The Japanese chose to discard thousand of years of strong cultural traditions and become an industrialist nation. (Source: Interview, local historian, Steve O’Neill)

Conclusions
Where does the whole issue of Makah whaling stand now? On December 20, 2002, a three-member panel of the Ninth Circuit Court has placed the whole issue on hold indefinitely. The court recognized that while the overall environmental effects and removal of the eastern North Pacific gray whale off the endangered species list did not impose a great impact on the state of Washington, the court found that the Environmental Assessment Report of 2001 did not adequately address the whale population in the local area of the northern Washington coast and Strait of Juan de Fuca. Further, the court has asked the Makahs to obtain a permit or an exemption from the Marine Mammal Protection Act (MMPA). (Kamb, Seattle Times, 2001:8) The Tribe plans an appeal to the panel, and may take it as far as the Supreme Court, if warranted. (Seattle Post-Intelligencer, December 2002). Legally, “Native American Treaty Rights are subject to judicial review and can be suspended when found to be in conflict with the rights of other groups.” (Ringuette 2000:9, Gupta 1999:L/N) In this case, the right to whale by the Tribe may be in violation with the “environmental community” risking the extinction of a specific whale population in the area surrounding Neah Bay. (Ringuette 2000:9)
It today’s society, it is perfectly acceptable to fish and hunt within required limits. The Makahs have a responsible management plan and have made a sincere effort in working within established guidelines of the IWC, the Treaty of 1855, and in all other areas outlined by the U.S. Should the Treaty be broken with the Tribe? And, what can the Tribe hold on to that is exclusively their unique tradition as a whaling people?

The whaling hunt of May 1999 was the Tribe’s most recent attempt in renewing their cultural traditions and in maintaining their treaty rights. To take away their treaty rights might very well mean losing their cultural identity. The Makahs take an active part in maintaining their traditions and culture and have a history of resisting integration into a global society. In addition, the history between the United States and adjudicating Native American treaty and fishing rights has not always shown an easy relationship.

Whether the Tribe continues their native ceremonial tradition of whaling remains open for political controversy. The issue of whaling may very well be one of the last few historical traditions over which the Tribe has control. To have their landed ceded to the U.S. government in return for fishing and whaling rights and have the whole issue reversed, may very well be one of the most important turning points within the history of the United States and Native American treaty rights of the 21st Century.