Makah plans to resume whaling - many hurdles to overcome

[Makah Whaling]

BACKGROUND
Makah Tribe and Whaling . . .
http://www.makah.com/whaling.htm


October 2005
Congressional committee support for upholding Makah Tribe Treaty Rights . . .
http://www.turtleisland.org/discussion/ ... =6204#6204

Public Hearings . . .
http://www.peninsuladailynews.com/sited ... tml/219340
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Turtle Island Native Network has learned that the *Sea Shepherd Conservation Society will be among those protesting against the possible resumption of tribal whaling in the Eastern North Pacific.

The group has begun rallying support to challenge the Makah, by attending upcoming public hearings in Washington State.

" . . . the Makah Tribe has a documented whaling tradition and has depended on whaling as the basis of its economy, subsistence, and culture for at least 1,500 years." Makah Tribe's 2005 Resolution seeking a waiver on the moratorium on whaling.

"The International Whaling Commission (IWC) specifically allows aboriginal whaling only when there is an unbroken tradition and only for subsistence purposes. The whales must be a necessity for food. The Makah do not qualify because they voluntarily broke their tradition and they have no need for whale meat for food purposes. They argue that the need is cultural. This is not a recognized need by the IWC." The Sea Shephard Conservation Society

News and Comment
by Tehaliwaskenhas
Bob Kennedy, Oneida
Copyright
Turtle Island Native Network
http://www.turtleisland.org

September 17, 2005

The Makah Tribe of the Pacific Northwest, plans to exercise their treaty rights and return to ceremonial and subsistence whale harvesting off the coast of Washington State. However, the government approval process could take a year, and then of course there will be more legal challenges.

But in the interim, another drama, likely of international proportions will unfold, involving the pros and cons of killing whales.

When the Makah Indian Tribe harvested a whale six years ago, it sparked a major debate, not only involving conservation and humane society protestors, governments and the public, but the issue also created some divisions within its own community, as well as other Tribes and First Nations.

If they receive a federal government waiver on the whaling Moratorium, the Makah could harvest as many as five gray whales in a one year period, for a total of 20 in any five year period.

One of the Sea Shepherd Society's arguments against the Makah harvesting whales includes, "If the Makah establish a quota for whales and are permitted to kill whales by the USA, it will motivate the tribes on Vancouver Island in Canada to develop whaling plans of their own. In 1998, thirteen native communities on Vancouver Island said that they would be interested in establishing whaling operations should the Makah do so."

As a matter of fact, the Makah whaling controversy did wash ashore into Canada, and became part of the emotional debate in the BC Treaty Process, with the suggestion the Nuu chah nulth would consider harvesting whales.

The importance of Nuu chah nulth whaling was clearly explained during a 2001 presentation by Tom Mexsis Happynook, Founding Chairman, World Council of Whalers, "Whaling within Nuu chah nulth society was the foundation of our economic structure. It provided valuable products to sell, trade and barter. In essence it was our national bank.

Whaling strengthened, maintained and preserved our cultural practices, unwritten tribal laws, ceremonies, principles and teachings. All of these elements were practiced throughout the preparations, the hunt and the following celebrations. Whaling strengthened and preserved our spirituality and is clearly illustrated through the discipline that the Nuu chah nulth hereditary whaling chiefs exemplified in their months of bathing, praying and fasting in preparation for the hunt.

The whale strengthened our relationships with other nations and communities. People came from great distances and often resulted in intertribal alliances, relationships and marriages.

The whale strengthened the relationships between families because everyone was involved in the processing of the whale, the celebrations, the feasting, and the carving of the artifacts that can still be seen today in many museums around the world.

The whale strengthened the relationships between family members since everyone shared in the bounty of the whale. And the whale strengthened our people spiritually, psychologically and physically."

In their 2005 application for a waiver from the Moratorium on whaling, the Makah promise to implement measures that will ensure, "that the hunt is as humane as practicable consistent with the continued use of traditional hunting methods, and . . . to protect public safety".

In this case, humane killing means, "that method of taking which involves the least possible degree of pain and suffering practicable to the mammal involved".

The Makah Tribe has at least a 1,500-year-old whaling tradition and secured an express right to take whales under "Article IV of the 1855 Treaty of Neah Bay".

In their request for a waiver, the Makah make it clear they have a right to harvest gray whales, "The Tribe’s Treaty whaling rights have not been abrogated by the MMPA or any other federal statute".

Since the Makah killed and feasted on a gray whale in May, 1999, their whaling activities have been shut down by legal decisions of the 9th U.S. Circuit Court of Appeals. In the last ruling from 2004, the Court ruled that the Makah must comply with the law and obtain a waiver from the National Marine Fisheries Service (NMFS) before any further whaling can take place.

In making their case for this current waiver, the Makah state their legal position, " Under wellestablished case law, these rights are subject to restriction only where necessary to prevent demonstrable harm to a particular stock or species of whales. Nevertheless, in Anderson v. Evans, 371 F.3d 475 (9th Cir. 2004), the Ninth Circuit Court of Appeals decided that the Tribe must obtain a waiver of the MMPA’s take moratorium before it may exercise its Treaty whaling rights.

The Tribe strongly disagrees with the Court’s holding, but is filing this application to provide a legal framework that will allow for long-term exercise of its Treaty whaling rights consistent with the conservation needs of the gray whale. Approval of this waiver request is needed to meet the Tribe’s cultural and subsistence needs and to fulfill the United States government’s Treaty and trust obligations to the Tribe."

This formal waiver of the moratorium on whaling, will be the subject of public hearings to be held by the United States Federal Government.

A key point being made by the Makah is that the whale population will not be seriously threatened by their exercising of their treaty right to harvest gray whales, "The population of Eastern North Pacific stock of gray whales is at its historic levels and within its optimum sustainable population (OSP)
. . . Because there is no likelihood that the Makah whale hunt will cause the Eastern North Pacific stock to fall below OSP in the foreseeable future, the Tribe’s waiver request is well within the Tribe’s rights under the Treaty of Neah Bay and is consistent with the policies and requirements of the MMPA".

The public hearings in October are a part of the review process required in federal environmental law that are necessary for the preparation of an environmental impact statement being prepared by the National Marine Fisheries Service (NMFS). NMFS is a branch of the National Oceanic and Atmospheric Administration (NOAA), an agency of the U.S. Commerce Department.

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BACKGROUND DETAILS
September 9, 2005

FROM: National Marine Fisheries Service (NMFS), Northwest Region

RE: Comment Period and Public Scoping Meetings on NMFS’ Intent to Prepare an Environmental Impact Statement (EIS) Related to the Makah Tribe’s Continuation of Treaty Right Hunting of Gray Whales

The National Oceanic and Atmospheric Administration’s (NOAA’s) National Marine Fisheries Service (NMFS), Northwest Region, is currently evaluating the Makah Indian Tribe’s request for a waiver of the moratorium on take under the Marine Mammal Protection Act, to allow for continued treaty right hunting of gray whales. As the first step in this evaluation, NMFS has
started the environmental review process required by the National Environmental Policy Act (NEPA)http://www.nwr.noaa.gov/mmammals/graywhales/index.html

We would like to invite all interested parties to participate in public comment opportunities, open to October 24, 2005, 5:00 p.m. PDT.

We are receiving written comments at the physical and e-mail addresses listed below, and are also holding three public scoping meetings in Washington State during October at the following locations and times:

October 5 Neah Bay, WA Makah Tribal Council Community Hall
6:30 – 9:30 p.m. 81 3rd Avenue (Makah Passage)

October 6 Port Angeles, WA Vern Burton Memorial Community Center
6:30 – 9:30 p.m. 308 East 4th Street (corner of 4th and Peabody)

October 11 Seattle, WA South Lake Union Park
6:30 – 10:00 p.m. 860 Terry Avenue North (The Naval
Reserve Building)

These public meetings have been set up as part of our commitment to provide ample opportunities to inform the public about this NEPA process, as well as to provide a formal, constructive comment forum to assist us in developing a draft EIS.

Format of the Public Scoping Meetings

The public scoping meetings will be designed in “workshop” format so that the public may have an opportunity to interact with NMFS staff in small group discussions. The meetings will begin at 6:30 p.m., with a fifteen minute introduction of the staff, facilities, and meeting ground rules
by a facilitator.

NOAA employees will then review the NEPA process and the proposed action (15 minutes), gray whale biology (15 minutes), and objectives for the small group discussions (15 minutes). After a break, meeting attendees will divide into small groups, which will have an hour to discuss 1) resources that may be affected by the proposed action and should be analyzed in the EIS and 2) ideas for alternatives to the proposed action.

NMFS staff will facilitate each small group discussion, and will record issues and comments on a flip chart. Following the discussions and a break, the entire group will reconvene and NMFS staff will summarize the major themes discussed in the small groups.

Also during the break-out session and the breaks, NMFS personnel will be available for questions about the NEPA and MMPA process and the biology of gray whales. The public is free to interact with NMFS staff during those times.

The meetings are scheduled to end at 9:30 p.m. at the Neah Bay and Port Angeles venues, and 10:00 p.m. at the Seattle venue. The discussions
from the small groups (summarized on each group’s flip charts) will be summarized in the scoping report, and the information will be considered in the development of the EIS. Comment forms will also be provided at the meetings for those who wish to submit public comments for the record at that time.

How to Attend

All public scoping meetings will be open to the public. Information about the public scoping meetings will be posted on our website at http://www.nwr.noaa.gov/mmammals/graywhales/index.html.

For those persons needing reasonable accommodations, please contact Kassandra Brown at 206-526-4348 at least 10 business days prior to your meeting or meetings of choice.

Additional Opportunity to Comment

We would like to emphasize that the public meetings are not the only opportunity to provide input.

Written or electronic comments from all interested parties are encouraged, and must be received by no later than 5:00 p.m. PDT on October 24, 2005. Comments sent via mail should be addressed to: Kassandra Brown, NMFS Northwest Region, Building 1, 7600 Sand Point Way NE, Seattle, WA 98115. Comments may also be sent via fax (206) 526-6426 Attn: Makah Tribe Whale Hunt EIS, or by email to MakahEIS.nwr@noaa.gov with the subject line containing the document identifier Makah Whale EIS.

For more information, or to obtain background materials, including the Makah’s request for a waiver of the MMPA take moratorium or the relevant Federal Register notice, please visit the links to the websites.

Request for a waiver of the moratorium on the taking of marine mammals which would allow the Tribe to conduct a Treaty ceremonial and subsistence (C&S) harvest of up to 20 gray whales from the Eastern North Pacific (ENP) stock in any five-year period, with a maximum of five whales per year. http://www.nwr.noaa.gov/mmammals/graywh ... cation.pdf

Moratorium in Section 101 of the Marine Mammal Protection Act . . .
http://www.nwr.noaa.gov/mmammals/graywhales/mmpa101.pdf

BACKGROUND
Makah Tribe and Whaling . . .
http://www.makah.com/whaling.htm

DATE ENACTED: 02-03-05
RESOLUTION NO. 17-05 OF THE MAKAH TRIBAL COUNCIL

WHEREAS, the Makah Tribal Council is the governing body of the Makah Indian Tribe of the Makah Indian Reservation, Washington, by authority of the Constitution and Bylaws of the Makah Indian Tribe as approved on May 16, 1936,by the Secretary of the Interior; and

WHEREAS, the Makah Tribe has a documented whaling tradition and has depended on whaling as the basis of its economy, subsistence, and culture for at least 1,500 years; and

WHEREAS, the 1855 Treaty of Neah Bay secures in perpetuity the Tribe's right of taking fish and whaling and sealing at all usual and accustomed grounds and stations; and

WHEREAS, the June 7, 2004 second amended opinion by the Ninth Circuit Court of Appeals on Anderson v. Evans 371 F.3d 475 (9th Cir. 2004) requires the Makah Tribe to seek a waiver and/or permit under the Marine Mammal Protection Act (MMPA) in order to exercise the whaling rights secured in the Treaty ofNeah Bay.

NOW THEREFORE BE IT RESOLVED the Chairman of the Makah Tribal Council is authorized to submit the attached application under Section 101(a)(3) of the Marine Mammal Protection Act (MMPA), 16 U.S.C. § 1371(a)(3), to the National Oceanic and Atmospheric Administration for a waiver of the moratorium on the taking of taking of marine mammals which would allow the Tribe to conduct a Treaty ceremonial and subsistence (C&S) harvest of up to 20 gray whales from the Eastern North Pacific (ENP) stock in a five-year period, with a maximum of five whales per year.
MAKAH TRIBAL COUNCIL
Ben Johnson Jr.
Chairman

Previous reports on this subject . . .
http://www.turtleisland.org/news/news-makah.htm

*Sea Shepherd has 12 primary reasons for opposing the plan to slaughter whales by the Makah:

1. The International Whaling Commission (IWC) specifically allows aboriginal whaling only when there is an unbroken tradition and only for subsistence purposes. The whales must be a necessity for food. The Makah do not qualify because they voluntarily broke their tradition and they have no need for whale meat for food purposes. They argue that the need is cultural. This is not a recognized need by the IWC.

2. The Makah say they have a treaty right with the United States to slaughter whales. However, the USA effectively abrogated this treaty in 1946 when they joined the IWC and did not represent the Makah as they did the Yupik and other Alaskan native communities. The Makah have a legal right to sue the U.S. for not representing them, although they did not request representation at the time and have never made a protest about this lack of representation. Whaling is governed by international law and falls under the authority of the IWC, and therefore, the USA no longer has the legal right to grant permission to any peoples to slaughter whales within or outside the territory of the United States.

3. If the Makah establish a quota of gray whales they will seek to establish a quota for humpbacks, minkes, and orcas in the future because gray whale meat is not considered to be palatable as a food animal. Most of the whale meat that came from the killing of the young whale name “Yabis” (killed on May 17, 1997) was discarded and wasted. Initially, the Makah admitted to having this objective of seeking additional quotas.

4. If the Makah establish a quota for whales and are permitted to kill whales by the USA, it will motivate the tribes on Vancouver Island in Canada to develop whaling plans of their own. In 1998, thirteen native communities on Vancouver Island said that they would be interested in establishing whaling operations should the Makah do so.

5. If the Makah establish a quota for whales it will further strengthen the positions of Japan, Norway, and Iceland to escalate their illegal whaling activities and it will weaken the United States, as it has already done so, as an international voice for whale conservation.

6. The original plans by the Makah were to establish commercial whaling activities to sell whale meat to Japan. We must ensure that this must not happen. Sea Shepherd Conservation Society does not wish to see the United States become a commercial whaling nation or a pirate whaling nation.

7. There is no quota granted to the Makah by the IWC and there never was. There is a quota given to native communities in Siberia. The Makah and the United States traded bowhead quotas from Alaska with gray whale quotas from Siberia. This was a horse-trading deal outside of the IWC.

8. If a whale quota is established at Neah Bay, it will threaten the local populations of resident whales that will surely be targeted by the Makah unless specifically protected by legislation.

9. The resumption of whaling by the Makah will cause stress in the migratory and resident populations and this could lead to dangerous situations for whale-watching participants that could be exposed to wounded or stressed animals.

10. Sea Shepherd notes that there are many Makah opposed to the resumption of whaling, and the whaling initiatives have been advanced by elite Makah families without full democratic tribal participation.

11. Tradition and culture must not be the basis for slaughter. The ancestors of the Makah killed whales because they had to do so for survival. There is no survival necessity today to justify such killing. The treaty that the Makah cite as evidence of their right to whale specifically states that they have the right to whale "in common with the people of the United States." When the treaty was signed, all Americans had the right to kill whales. When whaling was outlawed for all Americans it included the Makah as the rights are "in common" and not separate. There cannot be unequal rights granted in a system that promotes equality under the law. This is tantamount to extra special rights for a group of people based on race and/or culture and is contrary to the guarantee of equality under the law as guaranteed by the U.S. Constitution.

12. Whales should not be slaughtered anytime or anywhere by any people. These are socially complex, intelligent mammals whose numbers worldwide have been diminished severely.

Sea Shepherd Conservation Society . . .
http://www.seashepherd.org