[Dryerase] The Alarm!--Whaling in the Pacific, Part 1

[Alarm!Wires]

Whaling in the Pacific
PART I: Court Rules Indian Treaty Rights Take Precedent over Federal Law

By Michelle Stewart
The Alarm! Newspaper Collective

On Thursday, August 8, history was made in Washington State. In a court 
ruling, US District Judge Franklin Burgess cleared the way for the Makah 
Indian tribe of Washington State to resume whaling. The ruling is a 
precedent-setting case regarding Indian treaty rights in the United 
States.

The plaintiffs included special interest groups such as the Humane 
Society of the United States, the Fund for Animals, Australians for 
Animals, Cetacean Society International, the West Coast Anti-Whaling 
Society and the Peninsula Citizens for the Protection of Whales as well 
as eleven individuals from across the nation—one of whom resides in 
Monterey.  The suit filed by the litigants against the National Oceanic 
and Atmospheric Administration (NOAA) and the National Marine Fisheries 
Service (NMFS) charged that these agencies, through the Department of 
Commerce, violated the National Environmental Policy Act (NEPA) and the 
Marine Mammal Protection Act (MMPA) by allowing the Makah to hunt whales 
in  the Pacific Northwest.

Speaking from Seattle, John Arum, attorney for the Makah said, “We were 
really pleased with this most recent decision. Especially the way the 
judge handled the issue of the Marine Mammal Protection Act, stating 
that the tribe’s treaty rights take precedent over the MMPA.”

Excited about both the ruling and the precedent it sets, Arum 
continued, “We had the rulings in our favor for fishing but this is the 
first verdict of its kind for whaling rights.” According to Arum, from a 
legal perspective, it was already understood that Indians with treaty 
rights could use their treaty to counter federal, state or local 
fisheries laws. However, this is the first such ruling on whaling, which 
has been a particularly controversial subject for politicians, 
conservationists and Indians.

According to Brian Gorman of NMFS, “they [litigants] based their 
standing on pleadings of proof of harm: psychological, physical and 
financial.” Expanding on the notion of harm, Gorman explained that some 
litigants believed injured whales from the hunt could present a physical 
threat to whale enthusiasts, while others pled that the thought of an 
injured or suffering whale would cause them psychological harm. For 
litigants who run whale-watching businesses, or make a living creating 
art illustrating whales, their claim was that the hunt would have 
adverse financial effects on them. The contention is that tourists and 
art buyers might not look to that local market if it is tainted by the 
issue of regional whaling.

A major point in the case was the potential effect of hunting on the 
so-called “resident population” of whales in the Strait of Juan de Fuca. 
Speaking from Maryland, Michael Markarian, Executive Vice-President of 
the Fund for Animals, described this group as, “a behaviorally distinct, 
and possibly genetically distinct, population of whales who do not 
migrate.” According to Markarian the resident population in the area 
ranges from thirty to fifty whales. “The government failed to analyze 
the potential harm to this whale population, a potential that was 
severely increased when the government expanded the whale hunt to be 
allowed during any time of year,” claimed Markarian.

This expansion of the hunt Markarian refers to is what Brian Gorman of 
NMFS calls “the unintended effect” of the lawsuit. Gorman continues, 
“Well, the irony of the lawsuit is that, originally, the Makah only had 
the right to hunt migrating whales [during migration] in certain areas.” 
In the initial case, litigants won an appeal that demanded a new 
Environmental Assessment be drafted to assess the effects the hunt could 
have on the whale population.

The case was the result of actions taken by NMFS and NOAA whereby the 
agencies created a whale management plan with the tribe before 
conducting an assessment of the action. According to John Arum,  “They 
won at the Ninth Circuit, but in the end if they hadn’t won that case 
forcing a new EA, then we wouldn’t have this victory that expands the 
scope of the hunt.”

It was while the Federal agencies prepared the new EA “that new evidence 
came to light which allowed us to broaden the area and timing of the 
hunt,” said Gorman of NMFS. According to Gorman, the new area for the 
hunt includes portions of the greater Puget Sound and the Strait of Juan 
de Fuca, and the hunt is now open year-round rather than just when the 
whales are migrating.

Michael Markarian of the Fund for Animals comments on the scope of the 
hunt, “the fall migration of whales will begin in late September, and if 
tribe members hunt whales before that time they will be all but 
guaranteed to kill resident whales.”

Gorman responded to this discussion of harm to the resident whale 
population saying, “the issue of resident populations has been settled 
by a few courts, and there isn’t any way to describe them [the whales in 
question] biologically as a resident population.” Gorman further 
clarified, “we consider some of the population to be a ‘feeding 
aggregation’. As I understand it, there is a small segment of the 
overall population that spends a larger portion of time in the Strait of 
Juan de Fuca and the greater Puget Sound, and we describe them as 
‘feeding aggregations,’” Gorman explained. “When the migrating 
population migrates north to Alaska some of the males will never make it 
all the way—they stay in the Sound or Strait. When the greater 
population comes along they will rejoin the group in its migration 
south,” Gorman concluded.

Although John Arum characterizes the ruling as a “significant and maybe 
the final blow” to litigation attempts by those opposed to the hunt, 
Mike Markarian of the Fund for Animals contends, “we completely expected 
this decision, and have just been waiting for our chance to appeal our 
case to the Ninth Circuit Court of Appeals.” Citing the success his 
group had in 1999 when they won in the court of appeals, Markarian seems 
optimistic. “We are anxious for the Ninth Circuit Court of Appeals to 
hear our case on its merits.” However, Arum seems confident that the 
summary judgment released by Judge Burgess last week will stick. “Their 
allegation of harm was bogus, and the merits of our case were stronger,” 
Arum said.

Whatever the future might hold for this issue of the right to whale, 
Brian Gorman reiterates NFMS’s position quite simply, “Look, they have 
treaty rights. It has always been our contention that the Makah had a 
treaty right to hunt and there was not a biological threat.”

It has been a long five years for the Makah in their bid to whale. 
Despite international sanction and the backing of the US courts, the 
Makah continue to face a battle in Neah Bay for the right to whale. With 
hundreds of protestors disturbing the hunt, and only one whale taken 
since the permit was authorized, it continues to be an uphill battle—
with a long legacy.

This is the first of a three part series that explores the issues 
surrounding historical whaling in the Pacific Ocean and the rights of 
Indians to resume whaling. Next week, I will write a historical piece on 
the rise and fall of commercial whaling in the Pacific—specifically in 
the Pacific Northwest in the nineteenth and twentieth century. The 
following week, I will take a much closer look at the issues surrounding 
the history of Makah whaling and the continuing struggle to assert their 
rights under the 1855 Treaty of Neah Bay.

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noted otherwise, this material may be copied and distributed freely in 
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