In 1999 and 2000, after a hiatus of seven decades, Makah Indian whalers again hunted gray whales from their ancestral lands around Cape Flattery on the Olympic Peninsula. The Makah, whose whaling tradition dates back thousands of years, are the only tribe in the United States with a treaty guaranteeing the right to hunt whales. Makahs had not whaled since the 1920s, when commercial whaling nearly wiped out whale populations, but the tribe announced it would resume whaling after the gray whale was removed from the Endangered Species List in 1994. The decision ignited worldwide controversy. Some animal rights activists bitterly denounced the Makah, but other groups, from advocates for indigenous rights to the United States government, supported the tribe's right to hunt. Following legal battles and physical confrontations with protestors, Makah whalers landed their first whale in more than 70 years on May 17, 1999. A 2000 hunt was not successful, and court decisions put further authorized hunts on hold (although five whalers killed a whale without permission in 2007) as the Makah, who continue to assert their treaty right to hunt whales, seek federal approval to continue their tradition.
People of the Cape
In their language, the Makah are "people of the cape" (Sullivan, 23). For generations, they inhabited a large portion of the Olympic Peninsula, extending from Cape Flattery at the tip of the Peninsula for many miles south along the Pacific coast and east along the Strait of Juan de Fuca. Archeological research has documented well over 2000 years of Makah life and culture at the village of Ozette, about 15 miles south of Cape Flattery.
Traditions passed down to contemporary Makahs, reports of early visitors to Makah territory, and the discoveries at Ozette all confirm that pre-contact Makah had a well-developed technology and economy based largely on resources from the ocean, principally halibut, fur seals, and whales. These are usually obtained far out to sea, and the Makah were renowned for their seafaring tradition. Paddling large cedar canoes carved from the trunk of a single tree, Makahs regularly hunted and fished 30 or 40 miles, and sometimes more than 100 miles, out to sea. Early white observers commented on the Makahs' great skill as canoeists and as whale hunters.
Hunting the Gray Whale
The Makah hunted several varieties of whale, but concentrated on the gray whale. These baleen whales, which feed by passing water and mud through large baleen plates in their mouths to strain out food, average 35 to 45 feet in length, and 20 to 35 tons in weight. Pacific gray whales make the longest migration of any mammal. After feeding off the coast of Alaska during the summer, the whales travel up to 5,000 miles from the Bering Sea to the coastal lagoons of Baja California, where the females give birth. In the spring, they return to Alaska. These twice-yearly migrations historically brought thousands of gray whales past the Makah hunting grounds off Cape Flattery every spring and fall.
Since even a single whale supplied many needs, and because a whale hunt required substantial resources, whalers occupied positions of high prestige in Makah society. Only certain families were eligible to lead hunts, and whaling crews were led by the heads of those families. All whalers underwent rigorous spiritual training, including prayer and ritual cleansing and purification, as well as practice in techniques of the hunt.
Makah whaling canoes carried eight men -- a harpooner in front, one to steer in the rear, and six paddlers. The harpoon consisted of a copper or iron head, with horn barbs, tied to a rope of whale sinew and fastened to a wooden staff. When the whale was harpooned, numerous buoys made of inflated sealskins and tied to the rope were thrown in the water to slow the wounded whale and prevent it from diving. More harpoons and buoys were attached until the whale tired and could be killed with lances. The whale was then towed to shore where it was carved and distributed among the crew and other tribe members according to custom.
Virtually every part of the whale was used. The oil, blubber, and flesh were eaten, sinews were used for ropes, cords and bowstrings, and the stomach and intestines were dried and inflated to hold oil. Even the bones were occasionally used in house construction. The Makah frequently produced a surplus of whale oil and blubber, which they traded to other tribes, and to white settlers when they arrived.
The Treaty of Neah Bay
Like all American Indians, the Makah were devastated by contact with whites and the resulting epidemics, which killed more than two thirds of the Makah population. As their population declined, white settlement increased and the Makah, like other tribes, were pressured to sign treaties with the U.S. government ceding most of their ancestral land. However, while they agreed to give up many thousands of acres -- all their territory except a small reservation centered around Neah Bay and Cape Flattery -- the Makah insisted on retaining the rights to whale and fish that were central to their culture. As a result, the Treaty of Neah Bay, signed in 1855, specifically guarantees that "The right of taking fish and of whaling or sealing at usual and accustomed grounds and stations is further secured to said [Makah] Indians in common with all citizens of the United States" (Treaty of Neah Bay).
Makahs continued to hunt whales until the 1920s, when commercial whaling decimated the gray whale population. In 1855, the same year the Makah signed their treaty, Charles Scammon, a whaler from New England, discovered the gray whales' birthing lagoons in Baja California. White commercial whalers crowded the lagoons, and within a short time the gray whale was nearly extinct, its population dropping from an estimated 30,000 to only a few thousand.
Gray Whales Return
In 1946, the International Whaling Commission (IWC) was formed, initially to conserve whales for continued commercial harvest. Later, the U.S. government placed the gray whale on the Endangered Species List. By 1986, with worldwide sentiment against whaling rising, the U.S. and other nations persuaded the International Whaling Commission to adopt a moratorium on commercial whaling. The moratorium allowed hunts by some indigenous groups to continue. Gray whale populations rebounded, reaching 23,000 in 1994, with an annual growth rate of 2.5 percent. That year, the whale was removed from the Endangered Species List.
Meanwhile, like other Indians, Makahs were engaged in revitalizing their culture and defending treaty rights restricted by state laws and regulations. Through "fish-in" demonstrations in the 1960s, and landmark federal court cases in the 1970s, Northwest tribes including the Makah won the right to a substantial percentage of salmon, halibut, and other fisheries based on their treaties. In the mid-1960s the Makah Tribe hired a returning college graduate to apply for funding from the federal Office of Economic Opportunity, part of President Lyndon Johnson's "War on Poverty," to launch the Makah Community Action Program and Headstart Program. The programs were able to use anti-poverty funds to help further cultural renewal by pushing the boundaries for defining "poverty" to also include a loss of language and traditions. Elders were employed to teach Makah language and stories to children in Headstart and early elementary grades, summer cultural classes were initiated to help children learn traditional songs and dances, and organized classes in basket-making, carving, and weaving were begun.
The discoveries at Ozette, which began in 1970 after a winter storm revealed a long-buried village, were important for some tribal members, including the youth who worked on the excavations and elders whose knowledge was validated and affirmed by the thousands of well-preserved artifacts that they helped identify and discuss. The Makah also participated in the revival of the traditional Northwest carved cedar canoes. Carvers on Vancouver Island made the tribe a 35-foot canoe called the Hummingbird. In 1993, the crew of the Hummingbird joined canoes from many other tribes on a journey to Bella Bella in northern British Columbia, paddling 340 miles over the Pacific Ocean from Neah Bay.
The Makah Decide to Resume Whaling
For many Makahs, the next step was to resume hunting the no longer endangered gray whale. As one Makah put it:
"We quit whaling because we were told to. The whales are back. Whaling is what we do, it's what our songs and stories are all about" (The Seattle Times, September 12, 1997).
The tribe planned to hunt traditionally, by harpooning whales from a cedar canoe manned by eight men prepared according to the traditional holy rituals. The only change was using a powerful .50-caliber rifle to kill the whale instantaneously after it was harpooned, avoiding the prolonged death that resulted when only harpoons and lances were used.
Starting in 1996, the Makah sought permission from the International Whaling Commission to take up to five gray whales annually. Honoring the 1855 treaty, the U.S. government strongly supported the tribe's request. Doing so put the United States in an awkward position, given its long-standing opposition to increased whaling. The Makah request and U.S. support generated a storm of protest from anti-whaling and animal rights groups around the world.
Many Groups Oppose the Hunt
More than 350 groups from 27 countries opposed the tribe's plans. Most opponents conceded that taking only five whales per year would not threaten the gray whale population, but condemned the precedent that would be set by allowing the Makah to resume whaling after 70 years. Some feared that other indigenous peoples with a whaling tradition would try to follow suit, or that U.S. support for the Makah hunt would weaken efforts to end commercial whaling by other countries. However, some of the most prominent environmental and conservation groups, including Greenpeace and the Sierra Club, made deliberate decisions not to oppose the Makah whale hunt.
One of the most vocal critics of the Makah was the Sea Shepherd Conservation Society. The group, which had gained notoriety for using its fleet to attack whaling boats, threatened to physically disrupt the Makah hunt. Sea Shepherd head Paul Watson accused the Makah of acting as a front for Japanese commercial whaling interests, which the tribe denied. Among other organizations opposing the proposed hunt were the Progressive Animal Welfare Society (PAWS) and the Humane Society of the United States.
Despite the opposition, the U.S. won International Whaling Commission agreement in October 1997, for a deal between the U.S. and Russia allotting the Makah four gray whales per year from the 124-whale quota for native groups in the North Pacific. Even before the IWC decision, the Makah hunt was challenged in federal court by plaintiffs -- including Republican U.S. Representative Jack Metcalf (1927-2007) of Whidbey Island, animal rights groups, tour-boat operators and kayakers -- who argued that the government had not properly assessed the environmental impacts of the hunt. A year after the International Whaling Commission ruling, federal judge Franklin Burgess rejected the plaintiffs' claims.
Confrontations in Neah Bay
With the hunt cleared to begin October 1, 1998, protestors vowing to stop the Makah and reporters hoping to cover the action descended on Neah Bay, the principal town on the reservation. However, there was no hunt that fall. The whaling crew continued to prepare and practice, paddling the canoe Hummingbird out to sea almost daily. There were confrontations between protestors and Makahs in the harbor and on the road to the reservation. But the gray whale migration was late, and as the weather worsened protestors departed and the whalers put the hunt on hold until spring.
The first Makah whale hunt in more than 70 years took place on May 10, 1999, off Ozette, where numerous gray whales were passing on their spring migration. As the whalers in the Hummingbird approached the whales, speedboats and Zodiacs from the protest group Sea Defense Alliance tried to stop them. Protestors threw things at the canoe and fired fire extinguishers. Twice harpooner Theron Parker threw the harpoon at a whale but missed. The whalers hunted again on May 15, but did not harpoon a whale. Each time a protest boat entered the 500-yard "exclusion zone" established around the canoe, the Coast Guard detained it. The Sea Shepherd ship Sirenian left the area to pick up replacement boats.
The Whale Is Caught
On the morning of Monday, May 17, 1999, there were no protest boats around when, after praying together, the Makah whalers paddled the Hummingbird off Cape Alava near Ozette. With TV cameras broadcasting live from a helicopter overhead, the 35-foot canoe approached a 30-foot gray whale. As the whale surfaced, Theron Parker thrust the harpoon into it. The whale was harpooned a second time from the support boat that accompanied the canoe, and then shot and killed with the rifle. Only then did Sea Shepherd's Sirenian reach the scene, blasting its horn in protest. After the whalers prayed in their canoe, crewmember Donnie Swan, a diver, attached additional lines to the whale, which was towed back to Neah Bay by a Makah fishing boat. The Hummingbird, accompanied by canoes from visiting tribes, brought the dead whale to the beach where Makahs and many visitors waited to celebrate. The whaling crew and then other Makahs stood triumphantly on the whale. Following tradition, harpooner Parker sprinkled eagle feathers on the body.
The whale was carved on the beach in preparation for a potlatch feast. Makahs of all ages ate fresh blubber, many for the first time. A 13-year-old said "I've heard so many stories about this from my grandpa. Now I finally know what he meant" (The Seattle Times, 5/18/99). The potlatch, attended by members of native groups from the northwest and around the world, was held the following weekend to celebrate the successful hunt as a rebirth of Makah culture and a victory for treaty rights of all indigenous peoples.
Protestors quickly condemned the whale's death and the Makahs' celebration. A candlelight vigil was held in Seattle the evening of the kill. Newspapers throughout the state were deluged with letters and e-mails denouncing the hunt and the Makah. The outrage among some animal rights activists was so great that within a few days religious leaders in Seattle called for tolerance, expressing dismay at death threats against the Makah and the racist tone of some protests.
Makah Leaders See Culture Revitalized
The protests and controversy continued in May 2000, when Makah whalers again set out in pursuit of gray whales, pursued in turn by protest boats. The level of confrontation remained high, and the Coast Guard continued to seize boats violating the exclusion zone. In one instance, an inflatable Coast Guard "safe boat" ran over a protestor on a Jet Ski who had been buzzing the Makah canoe. Although Makah families made nine hunts, throwing seven harpoons, no whales were caught.
Despite the controversy, Makah leaders saw lasting positive effects from the successful hunt. The tribal chairman said in 2001 that "no one is the same" since the crew brought in the whale (Post-Intelligencer, July 14, 2001). Helma Ward, one of the few remaining elders who grew up speaking Makah, reported that attendance at language classes swelled after the hunt. Enough young people spoke Makah sufficiently to pass the language on to another generation. Makah high school students assembled the bones of the whale for display in the museum at the Makah Cultural and Research Center. John McCarty, first chairman of the tribe's whaling commission, stated:
"The interest of the people in our culture was sparked by the whale. It brought a lot of talk about the culture and how the Makahs were in the past. That was our aim: to revitalize the culture" (Seattle Post-Intelligencer, July 14, 2001).
Litigation Leaves Hunts on Hold
Then on June 9, 2000, the 9th Circuit Court of Appeals reversed Judge Burgess and ordered that hunts cease until a new environmental assessment was prepared. The new assessment was issued in July 2001, again approving the hunt. In 2002, the International Whatling Commission approved the Makah request to renew its quota of whales for an additional five years, and Makah whalers began to prepare for a hunt that year. As they did, some of the most ardent anti-whaling groups said they would not try to obstruct the hunt. PAWS decided not to return in part because its campaign was interpreted as a slur against treaty rights. And Sea Shepherd, leader of the anti-whaling fleet, announced it would not oppose the Makah hunt directly, although it would continue to support local opponents. Paul Watson of Sea Shepherd said the Makah hunt was a distraction from efforts to oppose large-scale whaling by nations such as Japan, Norway, Iceland, and the Danish Faroe Islands.
However, whaling opponents including the Humane Society of the United States and the Fund for Animals had appealed the new environmental assessment. Judge Burgess rejected the challenges, but on December 20, 2002, a three-judge panel of the 9th Circuit again reversed him, placing the hunt on hold indefinitely. The panel ruled that although the hunt would not have any significant impact on the overall gray whale population, the assessment did not adequately address possible impacts on the whale population in the local area of the northern Washington coast and Strait of Juan de Fuca. The court halted the hunt until a full fledged environmental impact statement evaluating those impacts is prepared. Moreover, in a ruling seen as having sweeping implications for all Indian treaty rights, the panel announced that the hunt cannot proceed unless Makah whalers obtain a permit or exemption under the Marine Mammal Protection Act (MMPA).
Hunt opponents celebrated the decision. Fund for Animals president Michael Markarian said "We are elated that the court has put a stop to this illegal and inhumane whale hunt" (The Seattle Times, December 21, 2002). For their part, the Makah, other Indians, and experts in Indian law were all stunned by the ruling that the Marine Mammal Protection Act applied despite the treaty guaranteeing the Makahs’ right to hunt whales. Legal experts said that the ruling appeared to conflict with the long-standing principle that Indian treaties are the supreme law of the land and cannot be overridden by general statutes.
Makah leaders lamented the decision’s effect on the tribe’s efforts at cultural revitalization. Tribal chairman Nathan Tyler said the ruling
"will hurt across the board. That day the whale was on the beach, the whole town was down there. People were happy and looking forward to getting some of that whale meat. Everybody is going to feel it here. They are not going to be happy with the decision" (Seattle Post-Intelligencer, December 21, 2002).
Compliance and Defiance
The tribe made two attempts to get the appeals court to change its ruling, but the panel judges rejected the requests and the rest of the 9th Circuit declined to hear the case. Rather than appeal to the U.S. Supreme Court and risk a further weakening of treaty rights, tribal leaders decided to comply with the procedures that the court said were necessary. In February 2005, seven months after the 9th Circuit’s final ruling, the Makah tribe submitted a formal request to the National Marine Fisheries Service for a waiver of the MMPA allowing them to hunt whales. The tribe and Fisheries Service also began work on the full environmental impact statement that the court required prior to any whale hunt.
The administrative process proved to be a lengthy one. Three years of public hearings and drafting followed before the Fisheries Service completed a first draft of the environmental impact statement. As the years passed with no authorization for a hunt, some Makah whalers grew impatient with what they considered the on-going violation of their treaty rights.
On September 8, 2007, five whalers, including several who had participated in the successful 1999 hunt, again harpooned a gray whale. They acted without permission from the Makah whaling commission or the federal government and the Coast Guard immediately seized the whale, which then sank without being harvested. This time the chorus of condemnation from anti-whaling forces was joined by tribal leaders, who shared the whalers’ frustration over the delays but feared that the unauthorized hunt would undermine their efforts to obtain the MMPA waiver. Makah authorities immediately announced plans to prosecute the whalers, who were ultimately convicted in federal court.
The Fisheries Service finally released a draft of the environmental impact statement in May 2008. However, three more years followed without issuance of a final statement or a decision on the waiver request. With more litigation likely to follow once a decision is issued, it remains uncertain, as of 2011, when or if Makah whalers will once more launch carved cedar canoes in search of gray whales, as they did for generations until the 1920s and again briefly at the turn of the twenty-first century.