In mid-November 2019, administrative hearings in Seattle, Washington wrapped up in the latest stage of the Makah Tribe’s nearly 25 year struggle to exercise their treaty-reserved right to hunt whales. The hearings were held to address a waiver under the Marine Mammal Protection Act (MMPA) proposed by the National Marine Fisheries Service of the National Oceanic and Atmospheric Administration (NOAA-NMFS).
If a waiver is ultimately approved, the Makah Tribe can once again exercise an inherent and Constitutionally-protected treaty right that should never have been impeded in the first place.
As has been the case since the Makah notified the United States of its intent to resume whaling in 1995, a coalition of animal rights and recreational industry groups has mobilized in an effort to abrogate at least a portion of the tribe’s 1855 Treaty of Neah Bay.
As has also been the case since the 1990s, groups and individuals opposing Makah treaty rights have distorted basic facts about treaties and pressed “legal” ideas that would threaten tribal rights well beyond the case of the Makah. Opponents of Makah whaling rights have spewed bigotry towards tribes and harassed Makah tribal members attempting to exercise their rights. One group currently leading the anti-Makah effort – the Sea Shepherd Conservation Society – has in the past allied its cause with an anti-Indian movement dedicated to the outright termination of tribal governments and the wholesale abrogation of treaty rights.
This article is the first in a series by Last Real Indians and the Institute for Research and Education on Human Rights (IREHR) that will examine the nature of this anti-treaty coalition and its drive to overturn rights rooted in eons-old hunting practices and protected by the U.S Constitution.
And it is a call for people of good will to press the U.S. government to fully uphold treaties and establish good-faith nation-to-nation relationships with indigenous nations.
Before we can look at the anti-treaty mobilization, however, we should start at the beginning.
The Treaty of Neah Bay, Colonialism and the End of Whaling
The homelands of the Makah Tribe lie along rocky shorelines in the northwest corner of the Olympic Peninsula inside the boundaries of what is now Washington State. Evidence of whaling dates back some 2,000 years at the Makah village of Ozette. Whaling has been central to Makah culture and subsistence since time immemorial.
In the wake of U.S. colonialism and the threat it posed to their lands and people, Makah leaders on January 31, 1855 signed the Treaty of Neah Bay with a U.S. delegation led by Washington Territorial Governor Isaac Stevens. The Makah ceded more than 90% of their land (some 300,000 acres), in return being assured that,
“[T]he right of taking fish and of whaling and sealing at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the United States.”
In treaty negotiations Makah leaders stressed the importance of securing their access to marine hunting and fishing. Makah Chief Klachote told Governor Stevens that “he thought he ought to have the right to fish and to take whales and get food where he liked,” as University of Washington Professor Charlotte Cote (Nuu-chah-nulth) describes in her book Spirits of Our Whaling Ancestors. Designated head chief Tse-kaw-wootl told Stevens that “he wanted the sea. That was his country.” In 1974 federal court Judge George Boldt wrote in U.S. v. Washington, that,
“Stevens found it necessary to reassure the Makah that the government did not intend to stop them from maritime hunting and fishing but in fact would help them develop these pursuits.
As made clear in Article VI of the United States Constitution “treaties made…under the Authority of the United States, shall be the supreme Law of the Land.” The U.S. Supreme Court wrote in 1942 that “In carrying out its treaty obligations with the Indian tribes the Government is something more than a mere contracting party…[I]t has charged itself with moral obligations of the highest responsibility and trust.”
The United States did not live up to its promise.
Subsequent years saw the well-worn patterns of colonial expansion, coerced assimilation and the destruction and theft of long-used tribal resources. Boarding schools cast Makah culture as “barbarous,” missionaries sought to undermine Makah spiritual practice and the tribe’s potlatch was suppressed, as Professor Cote describes.
The colonial assault on Makah sovereignty took place alongside the decimation of the gray whale by a white American capitalist whaling industry. Between 1856 and 1876 estimated gray whale populations fell from some 30,000 to between 8,000 and 10,000. The placement of non-Indian whaling stations along the coast in the early 20th century would contribute to further decline.
In the face of these factors, the Makah Nation voluntarily stopped whaling in the 1930s.
Makah Whaling Revival and the Anti-Treaty Campaign
The early 1970s passage of the Endangered Species Act (ESA) and Marine Mammal Protection Act (MMPA) would shape subsequent efforts by the Makah to exercise a treaty right violated through a combination of economic exploitation and colonial hubris. In 1970 the gray whale (Eschrichtius robustus) would be listed as endangered under a precursor to the ESA, and later as threatened under the ESA. By 1994 the Eastern Northern Pacific stock of gray whales had sufficiently recovered to be removed from the endangered species list.
In 1995 the tribe notified the U.S. of its intent to resume hunting. Rightfully representing the Makah before the International Whaling Commission – the international body charged with regulating global whaling – the U.S. in 1997 completed a joint request with the Russian Federation for a whaling quota of 120 animals – a maximum of five annually for the Makah and the remainder for the Chukchi people at the far northeastern end of the Asian continent.
On May 17, 1999 the Makah successfully hunted a gray whale for the first time since they had voluntarily ceased hunting.
From 1995 to the time of the hunt, and through to the recent administrative hearings, the ability of the Makah to exercise their treaty right has been hindered, and their treaty violated, by an animal rights and recreational industry mobilization that has included both direct action and legal strategies. On at least two separate occasions prior to the 1999 hunt, anti-treaty activists harassed Makah whalers by driving water vessels in their path. Sea Shepherd would boast about blocking Makah hunters alongside whale watching boats. Following the successful hunt, Sea Shepherd posted its ship, Sirenian, in Neah Bay, blasting a harassing horn at a community celebration.
In 1997 far right U.S. Representative Jack Metcalf (R-WA) joined animal rights and recreational industry groups in filing a lawsuit to block Makah whaling. Further hunts would be suspended when the 9th Circuit Court of Appeals ruled in 2000 in Metcalf v. Daley that NOAA-NMFS was required to produce a new Environmental Assessment. Groups joining Metcalf (R-WA) in the lawsuit included Australians for Animals, Beach Marine Protection, The Fund for Animals and Deep Sea Charters.
In April 2002 anti-treaty activists filed a separate lawsuit. This time the parties included Will Anderson of the Progressive Animal Welfare Society (now with Green Vegans), the Humane Society of the U.S., Australians for Animals, the Cetacean Society International, the West Coast Anti-Whaling Society and the Peninsula Citizens for the Protection of Whales.
In October 2002 the same court ruled in Anderson v. Evans (2002) that NOAA-NMFS was required to prepare a more detailed Environmental Impact Statement (EIS) instead of an Environmental Assessment (EA). The court also held that the Marine Mammal Protection Act (MMPA) applied to the Makah’s treaty-reserved whaling rights. The MMPA placed a moratorium on taking and importing marine mammals and required a federal permit for exemptions.
The federal court ruling imposing the MMPA on the Makah took place despite whale hunting being a treaty-reserved right, treaties being the highest law of the land under the U.S. Constitution, and 1994 amendments to the MMPA stating that,
“Nothing in this Act, including any amendments to the Marine Mammal Protection Act of 1972 made by this Act… alters or is intended to alter any treaty between the United States and one or more Indian tribes.”
While the Anderson decision clearly violated the 1855 Treaty of Neah Bay, the Ninth Circuit wrote that “we need not and do not decide whether the Tribe’s whaling rights have been abrogated by the MMPA.”
In light of Anderson v. Evans, in 2005 the Makah requested a waiver under the MMPA. NOAA-NMFS moved forward, publishing a Draft EIS in May 2008. In February 2015, after reviewing some 4,000 comments, the agency issued the current Draft EIS. The November 2019 hearings in Seattle were a continuation of this process, centered largely around a detailed examination of NOAA-NMFS’s proposed parameters for a Makah hunt and their potential effect on gray whales.
A decision by the administrative court will likely take place at some point in 2020.
Animal Rights Wrongs: The Anti-Makah Mobilization
From the 1990s to the present, the anti-Makah mobilization has exhibited a number of features. While these will be discussed in greater detail in future installments of this series, several points are worthy of observation at the outset.
First, the anti-Makah mobilization can be understood as a social movement that engages in a wide variety of actions intended to overturn the laws that support Makah treaty rights and to abrogate at least part of the 1855 Treaty of Neah Bay. As such, organizations and individuals involved in the anti-treaty effort have engaged in direct action, legal action, agency and grassroots lobbying, and “educational” efforts.
In the current stage, agency-centered strategies are led by the legal wing of the Alexandria, Virginia-based Sea Shepherd Conservation Society (SSCS), the Washington D.C.-based Animal Welfare Institute (AWI) and the Clallam County (Washington)-based Peninsula Citizens for the Protection of Whales (PCPW) – the latter, recall, a party to the Anderson v. Evans lawsuit. While Sea Shepherd founder Paul Watson currently claims that it will not engage in direct action unless asked to do so by a Makah tribal member, any favorable ruling by the administrative judge and permit waiver by NOAA-NMFS would certainly result in stepped up protest by at least some segment of this movement.
Second, the Sea Shepherd Conservation Society has demonstrated a troubling willingness to ally its cause with the organized anti-Indian movement. The Sea Shepherd’s most prominent far right ally during the late 1990s was the late Jack Metcalf. At the time of Sea Shepherd’s alliance with Metcalf, the far right figure was a U.S. Representative (R-WA) who had come to office amidst the 1994 congressional elections associated with then-Representative Newt Gingrich’s (R-GA) Contract for America.
Before gaining a seat in the U.S. House, Metcalf was a Washington State legislator known for stumping at white supremacist events, spewing far right conspiracy theories, and helping lead the organized anti-Indian movement. The latter included a stint in the leadership of Salmon-Steelhead Preservation Action for Washington Now (S/SPAWN) and its spawn, the United Property Owners of Washington. Such anti-Indian organizations seek the outright abrogation of treaty rights and the termination of Indian tribal governments – effectively seeking an end to tribal nationhood in the U.S.
Sea Shepherd worked closely with Jack Metcalf, holding meetings with the far right legislator and ferrying him to a 1997 meeting of the International Whaling Commission where he would represent the cause. The veteran anti-Indian leader would also join Sea Shepherd in a press conference. As we saw above, Metcalf v. Daley was also jointly filed by Metcalf and animal rights and recreation industry groups.
Third, each of the organizations leading the current legal phase have shown a willingness to distort the nature of treaty rights and make arguments that would harm tribes well beyond the Makah case. These distortions and bigotry have been echoed in even more shrill terms in the broader public.
IREHR and Last Real Indians will have much more to say about these facts in coming parts of this series.
Distortions of treaty rights and ideas that could undergird broad-scale assaults on tribes have already been visible in the lead-up to the administrative hearings. A couple examples suffice to illustrate this bigotry. In response to a November 7, 2017 Sea Shepherd Facebook post encouraging “Sea Shepherds and other members of the public” to attend the Seattle hearings, at least two people offered the spurious view that treaty rights are only legitimate if the Makah use 19th century technologies to hunt:
Such thinking would be as absurd as saying that American citizens can only exercise free speech rights if they wear white, powdered wigs or the triangular tricorne hats of the early Republic. This colonial and racist nonsense is compounded by Margaret Luna’s utterly unfounded claim that the Makah have “sold the bulk of the whale meat to the Japanese…anchored not far away in Vancouver, BC, Canada.” In actual fact, Vancouver, BC is more than 240 miles away from Neah Bay along a route that crosses a highly regulated international border.
Similar ideas appeared in response to an April 9, 2019 Facebook post by the Animal Welfare Institute announcing an appearance by AWI biologist D.J. Schubert on National Public Radio:
In the “logic” of such comments tribes could only exercise their treaty-reserved resource rights if they conform to non-Indians’ images of 19th century Indians – likely the variety they have seen on television. None of these comments were challenged by AWI or Sea Shepherd.
In the context of the longer mobilization, such comments are the tip of the anti-Indian iceberg.
This anti-Indian campaign is a radical assault on the fundamental and inherent treaty-reserved right of the Makah Tribe to hunt whales. The distortions of fact and accompanying bigotry are part and parcel of that campaign. In fact, it is likely not possible to overturn a group’s Constitutionally-protected rights without denigrating the people and belittling their culture and legal rights.
This has always been the case in racist and bigoted mobilizations. It is as true of this campaign to curtail treaty rights as it is of anti-immigrant, anti-Muslim and anti-LGBTQ campaigns; as it is of attempts to gut the 14th Amendment led by groups ranging from the Tea Party to white nationalists.
It is also true that throughout these anti-Indian mobilizations, people of good will have spoken up in support of treaty rights. Tribes and tribal members across the region and country voiced support for the Makah. In 1999 the American Friends Service Committee helped form the July 7 Coalition which brought together diverse groups and individuals to address racism in the anti-Makah effort. The Washington State Association of Churches called for respect for the Makah and expressed dismay at the racism that permeated the anti-treaty campaign.
The anti-Makah campaign is also wrong-headed for environmental reasons. Indigenous peoples have played as large a role as any single group in the U.S. and internationally in pressing for environmental justice and ecological restoration. Tribal treaty rights have provided a strong legal foot in the door to protect fisheries habitat in the Pacific Northwest; defend against ecological damage caused by the energy industry from the lands of the Lummi Nation to the lands of the Standing Rock Sioux; and fight for clean and healthy waters here in Washington State.
Tribes have put their treaty rights to the test and have won victories for all of us. Upholding the 1855 Treaty of Neah Bay would strengthen the Makah Tribe’s ability to advocate for the restoration of habitat critical to the gray whale and other marine species.
If you genuinely value ecological health, strong fisheries, clean waters and positive community relations, you should support treaty rights.
Full and genuine respect for indigenous sovereignty and treaty rights are also fundamental to the broader struggle for multi-racial democracy in the United States and abroad. The struggle for treaty rights and tribal sovereignty is part and parcel of the struggle for civil rights and economic and environmental justice.
It is time to come together once again and stand in support of the Makah Nation’s treaty rights.
 Makah Tribe. The Makah Whaling Tradition. https://makah.com/makah-tribal-info/whaling/; Cote, Charlotte. 2010. Spirits of Our Whaling Ancestors. Seattle, WA: University of Washington Press; 1855 Treaty of Neah Bay.
 Cote, Charlotte. 2010. Spirits of Our Whaling Ancestors. Seattle, WA: University of Washington Press; 1855 Treaty of Neah Bay.
 U.S. v. Washington. 384 F. Supp. 312; 1974 U.S. Dist. LEXIS 12291.
 Seminole Nation v. United States. 316 US 286 (1942).
 Cote, Charlotte. 2010. Spirits of Our Whaling Ancestors. Seattle, WA: University of Washington Press; 1855 Treaty of Neah Bay, p.42-61.
 Cote, Charlotte. 2010. Spirits of Our Whaling Ancestors. Seattle, WA: University of Washington Press; 1855 Treaty of Neah Bay, p.64-66.
 The Western Northern Pacific stock of gray whales continues to be listed as endangered. See National Marine Fisheries Service. Draft Environmental Impact Statement on the Makah Tribe Request to Hunt Gray Whales. February 2015. U.S. Department of Commerce National Oceanic and Atmospheric Administration National Marine Fisheries Service, West Coast Region. https://www.uscg.mil/Portals/0/Headquarters/Administrative%20Law%20Judges/NOAA%20files%202019/100.6%20ALJ_Ex_006_2015%20DEIS%20and%20Memo.pdf?ver=2019-11-15-142017-673.
 Eyewitness account by the author.
 Metcalf v. Daley. United States Court of Appeals, Ninth Circuit. 214F.3d.1135. June 9, 2000.
 Anderson v. Evans. United States Court of Appeals, Ninth Circuit. 314 F.3d 1006. October 28, 2002.Under the 1970 National Environmental Policy Act any federal action (such as permitting a hunt) is required to produce an Environmental Assessment (EA) to determine if there will be a “significant” impact on environmental and social resources. If the lead agency issues a Finding of No Significant Impact (FONSI), the action moves forward. It the agency determines that “significant” impacts may occur, a more detail Environmental Impact Statement must be produced and a substantial public comment process undertaken. See Environmental Protection Agency. Summary of the National Environmental Policy Act. https://www.epa.gov/laws-regulations/summary-national-environmental-policy-act.
 Marine Mammal Protection Act of 1972 as Amended 2007. Marine Mammal Commission. Bethesda, Maryland.
 Marine Mammal Protection Act of 1972 as Amended 2007. Marine Mammal Commision. Bethesda, Maryland.
 Anderson v. Evans. op cit.
 National Marine Fisheries Service (NMFS). Draft Environmental Impact Statement on Makah Tribe Request to Hunt Gray Whales. NFMS, West Coat Region. Seattle, WA. February 2015.
 Department of Commerce. Announcement of Hearing and Final Agenda Regarding Proposed Waiver and Regulations Governing the Taking of Marine Mammals. Federal Register. November 4, 2019. Vol. 84 (213):59360-59362.
 Watson, Paul. Sea Shepherd’s view on Makah whale hunt. Seattle Times. December 9, 2019. https://www.seattletimes.com/opinion/letters-to-the-editor/sea-shepherds-view-on-makah-whale-hunt/
 For more on these groups and Metcalf’s place in them, see Tanner, Chuck and Leah Henry-Tanner. Trampling on the Treaties: Rob McKenna and the Politics of Anti-Indianism. An Independent Research Report. 2012. https://turtletalk.files.wordpress.com/2012/09/trampling-on-the-treaties11.pdf
 Sea Shepherd. 1997. https://seashepherd.org/announcement/1997-2/. Accessed December 2, 2019; Animal People. Makah Don’t Get Quota: Sea Shepherds Find Republican Friends. August/September 1996. https://newspaper.animalpeopleforum.org/1996/08/01/makah-dont-get-quota-sea-shepherds-find-republican-friends/; Watson, Paul. The 1988 Gray Whale Protection Campaign. Sea Shepherd. http://www.seashepherd.org/wh/us/mk98sum.html. Accessed June 12, 1999.
 Sea Shepherd Conservation Society. Facebook. November 7, 2019. https://www.facebook.com/SeaShepherdConservationSociety/?__tn__=%2Cd%2CP-R&eid=ARD6CHNJOygjUUEj1X3dPBN6VJZ-siplvM2nJy0rbSyOTY4tgSfY-GM_SL6FvQ5QUrceD3dl2jPgXpT2
 Animal Welfare Institute. Facebook. April 9, 2019. https://www.facebook.com/animalwelfareinstitute/?__tn__=%2Cd%2CP-R&eid=ARD2PiW1FfnlMNvwZm7DkR-J07F5SVMWja6ULy1I3PzwZWAyvLWgf70TBi8BbYuGXKQuvHswWJTExdzW
 Associated Press. Whale Hunt: Religious, community leaders urge respect for Makah Tribe. Kitsap Sun. May 22, 1999. https://products.kitsapsun.com/archive/1999/05-22/0052_whale_hunt__religious__community_.html. This author was honored to have taken part in the July 7 Coalition.