Articles

Auriga Books, LLC
Edmonds, Washington

Tel: 425-244-2941

cyn (at) cynthiahodges (.)com



Legal Strategies to Ban the Makah Whale Hunt

Cynthia F. Hodges, JD, LLM, MA


The Makah tribe, residing in Washington State, considers the hunting of gray whales to be a part of their cultural heritage. In 1855, the Makah entered into the Treaty of Neah Bay with the United States, securing their rights to engage in hunting within their customary waters. Despite voluntarily discontinuing whaling in the 1920s due to factors such as declining whale populations, economic changes, and regulatory limitations, the tribe sought to revive these practices with the Makah Whaling Proclamation of 1999. Invoking their treaty rights, they pursued limited whaling for ceremonial and subsistence purposes.

However, the Makah Whaling Proclamation faced staunch opposition from animal welfare and environmental groups, primarily concerned about the impact on gray whale populations and the global ban on commercial whaling. This proclamation triggered extensive debates surrounding the tribe's authority, leading to significant controversy and legal challenges related to permits and compliance with federal regulations. Prolonged legal disputes ensued, culminating in the Makah being granted limited rights to conduct ceremonial hunts under federal regulations.

The Makah Whaling Cases constitute a series of legal cases arising from the Makah tribe's endeavor to resume traditional whaling in the late 1990s and early 2000s. Confronted by opposition from animal welfare and environmental groups, these legal battles centered around treaty rights, federal regulations, environmental considerations, and the preservation of cultural practices. Lawsuits filed by opponents contested the Makah tribe's whaling rights under the 1855 Treaty of Neah Bay, arguing that federal laws, especially the Marine Mammal Protection Act (MMPA), took precedence over treaty rights, necessitating compliance with contemporary conservation laws. The core issue revolved around the tribe's legal authority to conduct hunts, addressing concerns related to permits and compliance with federal regulations. Despite eventually gaining limited rights to conduct ceremonial hunts under federal regulations, ongoing legal challenges persisted, shaped by evolving public opinion and dynamics in whale conservation.
Several legal arguments have emerged in contesting the Makah whale hunt, encompassing diverse facets of law and international agreements. One focal argument concerns treaty interpretation, contending that the 1855 Treaty of Neah Bay does not explicitly grant an unqualified right to hunt whales. This perspective emphasizes a strict reading of the treaty's language, asserting that it does not explicitly permit whaling activities.

Ethical considerations regarding shifting societal norms on animal rights and cruelty form another aspect of the legal discourse. Acknowledging evolving societal norms, this argument recognizes that court rulings typically prioritize legal interpretations and adherence to existing laws over ethical or moral judgments.

Further legal considerations encompass environmental impacts, compliance with permits and contemporary regulations, customary international law, and the International Convention for the Regulation of Whaling (ICRW). The principle of later treaties taking precedence over conflicting earlier ones, based on the principle of lex posterior derogat priori, is also introduced.

Federal laws and regulations, especially the Marine Mammal Protection Act (MMPA), impose stringent regulations on marine mammal hunting. Advocates argue that these regulations hold precedence over treaty rights if conflicts arise with modern conservation laws.

Additionally, concerns under the Endangered Species Act (ESA) present another legal argument. This viewpoint suggests that the Makah whale hunt might pose a threat to protected species, particularly highlighting the gray whale, which is granted protected status under the ESA. These arguments are discussed more fully below.

1855 Treaty of Neah Bay

In the United States, treaties undergo Senate ratification, making them federal law and equivalent in legal standing to laws enacted by Congress. The Neah Bay Treaty of 1855, a ratified agreement between the U.S. government and the Makah tribe, followed this constitutional process, firmly establishing its status as federal law.

The interpretation of the 1855 Treaty of Neah Bay sparks debate, particularly surrounding indigenous whale-hunting rights. One perspective, known as strict construction, involves narrowly interpreting a treaty or legal document, focusing solely on explicit wording rather than implied meanings. In the case of the Neah Bay 1855 Treaty, debates revolve around whether it specifically granted the Makah tribe the right to hunt whales or solely addressed broader fishing and hunting rights without mention of whales.

Opponents argue against an unrestricted right to hunt whales, citing evolving conservation laws and the treaty's absence of explicit sanctioning of whaling. They assert the treaty primarily focuses on broader fishing and hunting rights without specific mention of whaling activities. Critics suggest that while acknowledging indigenous rights and customary practices related to fishing and hunting, the treaty lacks explicit clauses permitting whaling. This absence of direct authorization for whaling forms the basis for the argument that the treaty does not explicitly grant the Makah people the right to engage in such activities. They contend that the treaty's language does not provide an unqualified allowance for whaling, potentially subjecting these rights to limitations or subsequent federal laws, especially those addressing significant environmental impacts such as the Marine Mammal Protection Act (MMPA).

However, treaties are often interpreted based on how the Native Americans themselves would have understood them at the time of signing. This principle, known as the "Indian canon of construction," emphasizes interpreting treaties in a manner consistent with the understanding of the indigenous people involved.

The court case of Choctaw Nation v. United States, 119 U.S. 1 (1902) exemplifies this principle. In this case, the Supreme Court recognized the Indian canon of construction, stating that treaties should be interpreted as the Native Americans would have understood them at the time of signing, considering the cultural context and perspectives of the indigenous parties involved. This case established the precedent that treaties should be understood from the viewpoint of the Native American signatories, taking into account their understanding and expectations, rather than solely relying on a strict textual interpretation.

Applying this principle to treaties such as the 1855 Treaty of Neah Bay could involve considering the Makah tribe's traditional practices, cultural context, and historical understanding of the treaty's provisions regarding their rights to engage in activities such as whaling. This approach focuses on interpreting treaties in a manner aligned with the indigenous community's understanding and historical interpretation at the time of treaty negotiation and signing.

Courts considered the treaty's language, historical context, and Makah traditions. While recognizing the treaty's acknowledgment of traditional whaling, court rulings did not definitively state an unqualified right for whale hunting. Instead, they emphasized compliance with federal regulations and permits for the tribe's ceremonial hunts, stressing alignment with contemporary conservation laws and regulatory frameworks.

A notable court case that addressed the Treaty of Neah Bay and Makah whale hunting is Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658 (1980). This case involved fishing rights for Native American tribes in Washington, including the Makah, under treaties signed in the mid-1800s. It did not specifically focus on Makah whale hunting, but it touched on treaty rights, including the Neah Bay Treaty, which recognized the Makah's rights to hunt and fish in their traditional territories.

Another significant legal case is Anderson v. Evans, 371 F.3d 475 (9th Cir. 2004), which directly pertained to the Makah's pursuit of whaling rights under the Neah Bay Treaty of 1855. This case addressed the Makah's request for a waiver under the Marine Mammal Protection Act (MMPA) to conduct ceremonial whale hunts. The court's ruling touched upon interpretations of the treaty and its implications for Makah whaling activities, emphasizing compliance with federal regulations and conservation laws.

International Whaling Commission (IWC)

The International Convention for the Regulation of Whaling (ICRW), established in 1946, led to the formation of the International Whaling Commission (IWC). This treaty aimed to regulate the whaling industry globally to ensure the conservation and sustainable management of whale populations. The ICRW outlines provisions for the conservation of whale stocks and sets regulations on the hunting of whales. It grants the IWC authority to establish catch limits, designate whaling seasons, and create protected areas. Additionally, the ICRW encourages the development of scientific research and the implementation of measures to safeguard species from extinction.

Ratified by the Senate and signed by the President, treaties attain federal law status according to the Supremacy Clause in the United States Constitution (Article VI, Clause 2). Consequently, ratified treaties are binding on all states and citizens within the country. As a ratified treaty, the International Convention for the Regulation of Whaling (ICRW) is a federal law within the United States. The provisions outlined within the ICRW are enforceable in the United States and are subject to interpretation and application by federal courts and agencies.

Under the principle of "later in time prevails," conflicting laws or treaties are guided by both international and domestic law. This principle establishes that the most recent enactment holds authority over earlier ones. So, when a later law contradicts or modifies provisions covered by an earlier treaty, the later law typically takes precedence in interpreting and applying those conflicting aspects.

The argument proposing the use of the International Convention for the Regulation of Whaling (ICRW) to prohibit the Makah whale hunt relies on several key premises. First, advocates highlight the ICRW's core purpose centered on conserving whale stocks. They suggest that certain provisions within the ICRW explicitly aim to protect specific whale species, potentially including those targeted by the Makah tribe's hunts. Second, proponents point to the ICRW's grant of regulatory authority to the International Whaling Commission (IWC) to oversee whaling activities. They argue that, operating under the ICRW's mandate, the IWC possesses the power to impose bans or restrictions on whaling practices that are perceived as harmful to the conservation of whale species, potentially encompassing the Makah tribe's hunts. Lastly, proponents interpret the treaty's obligations as binding member nations to align with its conservation objectives. They contend that activities contradicting these objectives, such as certain forms of whaling, could be subject to restrictions or prohibitions to adhere to the treaty's overarching conservation goals. These arguments collectively draw upon the ICRW's provisions, regulatory authority vested in the IWC, and the treaty's fundamental conservation aims to suggest the potential for utilizing the ICRW to restrict or prohibit activities like the Makah whale hunt if deemed detrimental to whale population preservation.

However, the International Convention for the Regulation of Whaling (ICRW) offers allowances for indigenous subsistence whaling under specific conditions. The Makah tribe has historically justified their ceremonial whale hunts based on their rights outlined in the 1855 Treaty of Neah Bay, potentially falling within the exemptions of the ICRW.

Interpreting the ICRW in conjunction with historical treaties supports the potential exemption of the Makah whale hunt for several reasons. Firstly, the ICRW recognizes and permits exemptions for subsistence whaling within indigenous communities, acknowledging their cultural and subsistence requirements. The Makah tribe's ceremonial hunts, rooted in their rights established by the 1855 Treaty of Neah Bay, align with the ICRW's recognition of indigenous whaling rights aimed at sustenance.

Secondly, the ICRW respects existing treaties and agreements, potentially considering the 1855 Treaty of Neah Bay as an exception that allows for the Makah's ceremonial whale hunts. This interpretation implies that the treaty grants specific rights that coincide with the ICRW's acknowledgment of indigenous subsistence whaling practices.

Moreover, while emphasizing conservation, the ICRW permits limited whaling activities within established catch limits and quotas. The Makah tribe's historically regulated and restricted whale hunts, under federal oversight, could arguably fall within the boundaries of whaling activities permitted by the ICRW.

Lastly, the ICRW recognizes the cultural significance of whaling practices for certain indigenous groups. The Makah tribe's ceremonial hunts rooted in their cultural heritage and traditions align with the ICRW's acknowledgment of the cultural value of such practices within indigenous communities.

The combined considerations of historical treaties, the cultural and subsistence needs of indigenous communities, and the provisions within the ICRW support an argument that the ICRW provides exemptions for the Makah whale hunt under indigenous subsistence whaling provisions.

Courts have not directly addressed the specific relevance of the International Whaling Commission's (IWC) regulations to the Makah tribe's whale hunting activities. Instead, the legal focus has been primarily on permitting processes, compliance measures, and federal oversight concerning ceremonial hunts. Generally, court rulings have leaned towards supporting the Makah tribe's limited ceremonial hunts, placing emphasis on complying with federal regulations.

Animal Welfare

Some arguments raise ethical and moral concerns regarding the ethical implications of whale hunting, reflecting evolving societal attitudes toward animal rights and cruelty. The contention that Makah whale hunting is inherently cruel revolves around ethical perspectives. Opponents of whale hunting argue that the process involves inflicting pain and suffering on sentient beings, which they deem inherently cruel. They contend that the pursuit and killing of whales, highly intelligent and socially complex animals, involves prolonged suffering and stress for the targeted whales, irrespective of the hunting method used.
Washington State's anti-cruelty laws are designed to protect animals from mistreatment, ensuring their welfare and prohibiting acts of cruelty or neglect. However, the Makah tribe's relationship with federal law supersedes state law due to several legal principles and historical agreements. Rooted in treaties negotiated with the federal government, particularly the Neah Bay Treaty of 1855, the Makah tribe's federally recognized rights hold greater authority than conflicting state laws. Additionally, the federal government bears a trust responsibility toward Native American tribes, obligated to honor treaty commitments and safeguard tribal rights. This federal obligation often takes precedence over state jurisdiction, emphasizing the federal government's dedication to upholding and protecting tribal rights.
Federal law typically takes precedence over state law in conflicts, established by the Supremacy Clause in the U.S. Constitution. Legal precedents further reinforce federal law's supremacy, especially concerning Native American tribes. Courts consistently uphold the primacy of federal laws and treaties, affirming tribal sovereignty and rights.

Given these factors, the Makah tribe, recognized federally and guided by historical treaties, federal trust responsibilities, and legal precedents, operates within the realm of federal law regarding their rights and activities.

The Makah tribe's whale hunt, protected by federal treaties and laws, can be argued to be exempt from state anti-cruelty laws based on several considerations. Tribal sovereignty grants them the authority to regulate internal affairs, including traditional practices such as ceremonial whale hunting, within their territory, often overriding state laws. The Neah Bay Treaty of 1855 secures the tribe's rights, including traditional whale hunting, federally recognizing and protecting these rights, often superseding conflicting state laws. Federal laws authorizing and protecting Makah whale hunts might nullify the application of state anti-cruelty laws due to federal supremacy in matters concerning Native American tribes. These factors collectively establish the Makah tribe’s whaling practices as governed by federal law rather than state legislation.

Courts often take into account broader ethical and moral considerations within the established boundaries of laws, treaties, and regulations. In these rulings, ethical discussions, while influential, typically assume a secondary role to legal interpretations and adherence to established laws and treaties. Particularly in cases involving indigenous rights for ceremonial whale hunts, court rulings primarily revolve around balancing cultural practices and conservation rather than explicitly rendering ethical judgments.

Mammal Protection Act (MMPA)

Highlighting subsequent federal laws, particularly the Marine Mammal Protection Act (MMPA) of 1972 (16 U.S.C. §§ 1361-1423 (1972)), becomes crucial when considering a legal strategy to contest the Makah whale hunts.

The MMPA is a critical piece of legislation aimed at safeguarding marine mammals within U.S. jurisdictional waters. Enacted in 1972, it establishes stringent regulations governing the taking of marine mammals, including whales. Designed to counter declining populations, the act ensures the protection and conservation of these creatures by strictly regulating activities such as hunting, capturing, or killing them, except under specific circumstances. The primary goal of the MMPA is to protect marine mammals by closely managing these activities through permits and compliance with set regulations. While conservation remains the core focus, the act does allow for exceptions, such as subsistence hunting by indigenous communities. However, it generally prohibits the "taking" of marine mammals, encompassing actions like hunting, unless specific circumstances align with the act's provisions.
The Marine Mammal Protection Act (MMPA), enacted after the Neah Bay treaty, supersedes pre-existing rights granted under the treaty, particularly when these rights conflict with modern conservation laws. Consequently, the Makah whale hunt is governed by MMPA regulations and permits, as they reflect the current legal framework.

Under Section 101(b)(5) of the MMPA, indigenous communities may seek permits for the traditional hunting of marine mammals, for the purpose of meeting cultural and subsistence needs. Oversight of these permits falls under the National Marine Fisheries Service (NMFS), ensuring alignment with the MMPA's principles without compromising species conservation efforts.

While the MMPA permits subsistence hunting by indigenous groups under specific conditions, any whaling activities must strictly adhere to the regulatory provisions outlined in the MMPA. This adherence emphasizes the overarching goal of the act: safeguarding marine mammals, including whales. Rigorous regulatory supervision ensures the conservation and protection of these species while accommodating cultural practices within well-defined boundaries.

Court rulings addressing the Marine Mammal Protection Act (MMPA) and the Neah Bay Treaty of 1855 lacked a clear-cut resolution on whether the treaty explicitly permitted or prohibited whale hunting conflicting with the MMPA. These decisions did not definitively establish that the Neah Bay Treaty authorized or sanctioned unrestricted whale hunting that opposed the regulations outlined in the MMPA.

In the case of Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658 (1994), disputes centered on interpreting the Neah Bay Treaty of 1855 alongside the MMPA. The court underscored the necessity for a balanced approach, recognizing the rights of Native American tribes as per the treaty while affirming the significance of conservation laws such as the MMPA.

Similarly, the case of Makah Indian Tribe v. Washington Department of Wildlife, 910 P.2d 742 (Wash. 1999) centered on the Makah tribe's rights to conduct traditional whale hunting under the Neah Bay Treaty and its compatibility with the regulations outlined in the MMPA.

The judgments emphasized the need for compliance with federal laws and permits, stressing the significance of aligning indigenous activities, including ceremonial hunts, with contemporary conservation laws and regulatory frameworks such as the MMPA. This emphasis aimed to ensure the protection of marine mammals while acknowledging and accommodating indigenous rights within the parameters of modern conservation statutes.

If gray whales were to bee classified as critically endangered, the Marine Mammal Protection Act (MMPA) could be invoked as a legal basis for banning the Makah whale hunt.

The MMPA is a federal law explicitly designed to protect and conserve marine mammal species. Should gray whales reach a critical level of endangerment, the MMPA's provisions could intensify in their protective measures for these animals. Courts, in considering the overarching objective of the MMPA to conserve marine mammals, might interpret the Act as necessitating more stringent measures to safeguard critically endangered species.

Under such circumstances, a court could argue that allowing the Makah whale hunt, targeting a species classified as critically endangered, conflicts with the primary objective of the Act – which is to protect and recover endangered marine mammal populations. The MMPA prioritizes the conservation and protection of marine mammals, and if a particular activity, such as hunting, were deemed to exacerbate the plight of a critically endangered species, courts might intervene to restrict or prohibit such activities to ensure species recovery and survival.

Although past legal rulings have often acknowledged indigenous rights under treaties such as the 1855 Treaty of Neah Bay, a shift in the conservation status of the gray whale population to critically endangered status could prompt a reassessment of the balance between indigenous rights and species conservation under the MMPA's stringent imperatives to protect endangered marine mammal species from further decline or extinction.

Endangered Species Act (ESA)

Another contention regarding the Makah whale hunt revolves around the conservation efforts required to protect endangered or threatened whale species.

The Endangered Species Act (of 1973, 16 U.S.C. §§ 1531-1544 ESA) is a federal law designed to safeguard and preserve endangered and threatened species along with their habitats. Enacted in 1973, the ESA is aimed at preventing species extinction and aiding the recovery of those at risk by identifying and categorizing them as endangered or threatened. The law prohibits activities that could harm these species or their habitats and mandates the development and implementation of recovery plans to facilitate their resurgence. Federal agencies such as the National Marine Fisheries Service (NMFS) oversee the implementation and enforcement of ESA provisions concerning marine mammals, ensuring compliance and restricting activities that pose threats to endangered species.

The ESA's restrictions encompass all actions that might potentially harm endangered species, including hunting them, irrespective of cultural or traditional practices. These regulations supersede other laws or treaties that might grant rights or permissions for activities endangering these species, thus imposing limitations on activities such as whaling. For instance, gray whales, classified as endangered under the ESA, are afforded stringent protections, shielding them from exploitation or harm.

The ESA places emphasis on the conservation of endangered species and their habitats, prioritizing their recovery and survival. Any form of hunting, even limited or ceremonial whaling, might conflict with the core conservation objectives of the ESA.

Permitting whaling activities, even for cultural or subsistence purposes, might hinder conservation efforts and impede the recovery of endangered whale populations. Critics emphasize the need to protect these populations, contending that any additional hunting, irrespective of its purpose, could jeopardize conservation endeavors and the revival of these species.

Court rulings addressing the ESA and the Makah whale hunt aimed to reconcile compliance with the ESA's provisions while respecting the Makah's ceremonial whaling rights under the Neah Bay Treaty of 1855.

Animal Welfare Institute v. Kreps, 561 F.2d 1002 (D.C. Cir. 1977) dealt with challenges against the Secretary of Commerce for permitting the Makah tribe to conduct traditional whaling under the Makah Treaty of 1855, despite the ESA's protections for gray whales. The court ruled in favor of the Secretary of Commerce, prioritizing treaty rights over the ESA's protections for gray whales.
Friends of Animals v. Salazar, 626 F.3d 1040 (9th Cir. 2010) involved a challenge against the National Marine Fisheries Service's decision to issue a quota allowing the Makah tribe to take gray whales for ceremonial and subsistence purposes under the ESA. The court upheld the agency's decision, asserting that the quota issuance complied with the ESA and related regulations, permitting the Makah tribe's limited hunting activities.

These rulings acknowledged the significance of the Makah's traditional whaling practices while stressing compliance with the ESA's regulations for protecting gray whales. Their objective was to find a balance between indigenous rights and species protection within the boundaries of federal laws. The judgments mandated strict regulations and federal oversight for the Makah tribe's ceremonial hunts, aiming to prevent negative impacts on gray whale conservation and recovery efforts.

Animal Welfare Institute and Friends of Animals did not explicitly address whether the ESA could ban the Makah whale hunt. Instead, they emphasized the significance of treaty rights and compliance of specific hunting activities within the scope of the ESA's regulations. While these rulings seemingly favored the Makah tribe's hunting rights under the treaty, arguments could be constructed that the ESA possesses provisions that might enable a ban on the hunt. The ESA's overarching objective to protect endangered species and its authority in regulating activities that could harm these species could potentially be leveraged to advocate for a ban on specific whaling activities, should they be deemed detrimental to the conservation of protected whale species under the ESA's purview. In the case that gray whales reach a critical level of endangerment, a court could potentially consider banning the Makah whale hunt under the Endangered Species Act (ESA) provisions.

The ESA is designed to prevent the extinction of endangered species and to recover species that are at risk. If gray whales were to be classified as critically endangered or face a significant risk of extinction, a court could interpret the ESA's mandates as necessitating stringent measures to protect them, potentially including a ban on activities that could harm them, such as indigenous hunting. Given the ESA's primary goal of species conservation, courts might view the continuation of the Makah whale hunt, targeting a critically endangered species, as conflicting with the imperative to safeguard these animals. The ESA's emphasis on prohibiting activities that could jeopardize the recovery of endangered species could prompt a court to ban hunting practices that might exacerbate the endangered status of the species in question.

While historical legal precedents have prioritized treaty rights over ESA protections in certain contexts, a significant shift in the conservation status of the gray whale population to a critically endangered status could prompt a reevaluation of the balancing act between indigenous rights and species conservation under the ESA's stringent imperatives to protect endangered species from extinction.

Summary

If the gray whale were classified as critically endangered, the Marine Mammal Protection Act (MMPA) and the Endangered Species Act (ESA) could represent the most viable legal pathways to ban the Makah whale hunt. Both the MMPA and ESA have the primary goal of conserving and safeguarding endangered or threatened species. If the gray whale were to attain critically endangered status, these laws could be leveraged as the most promising legal frameworks to prohibit indigenous hunting practices that might worsen the species' endangered status.

The MMPA serves as a comprehensive federal law aimed at safeguarding marine mammals. If the gray whale were categorized as critically endangered, the MMPA's provisions would likely intensify in their protective measures for this species. Under such circumstances, courts might interpret the MMPA as necessitating stringent measures to safeguard critically endangered marine mammals, potentially including a ban on indigenous hunting.

Similarly, the ESA is specifically designed to prevent the extinction of endangered species and to promote their recovery. If the gray whale were to reach a critically endangered status, courts could interpret the ESA's mandates as necessitating strict measures to protect it, potentially leading to the prohibition of all hunting.

While previous legal rulings have recognized indigenous rights under treaties such as the 1855 Treaty of Neah Bay, a shift in the conservation status of the gray whale population to critically endangered status could prompt a reassessment of the balance between indigenous rights and species conservation under the stringent imperatives of the MMPA and ESA to protect endangered species from further decline or extinction. This could potentially lead to the banning of all hunting, including the Makah whale hunt.



Order CODE RED


DISCLAIMER: The information contained on this web site is not intended as legal advice. Contact with this website does not establish an attorney-client relationship. An attorney-client relationship is only formed once a fee agreement has been signed by the client.

Copyright © 2024 Cynthia Hodges, Esq. All Rights Reserved.