You may have heard that the US government will now allow the Makah Tribe to hunt whales again.

Not quite.

The US will now allow the Tribe to “enter into a cooperative agreement under the Whaling Convention Act.” After that, they still must “apply for and receive a hunt permit.” This comes after an excruciating 29-year process in which the Tribe has been seeking permission to hunt whales.

The 1855 Treaty of Neah Bay is clear. The Makah Tribe has “the right of taking fish and of whaling and sealing at usual and accustomed grounds and stations…” It was whale oil from Neah Bay that lubricated the early lumber mills built by British and European pioneers. You can read about this in Indians of the Pacific Northwest by Vine Deloria Jr., one of the best books on the topic – and it takes you right up to the Fish Wars in the 1970s, when tribes fought – both via violent confrontations with law enforcement and in the courts – for their fishing rights, also granted by treaty, denied to them for over a century.

Located along the rocky beaches and wave-crashed sea stacks of the northwest corner of the Northwest, a five-hour drive northwest of Seattle, the Makah may seem as remote as their Alaska Native relatives, yet they are well within the web of the white man, both with respect to natural resource exploitation and bureaucracy. 

The Eastern North Pacific Gray Whales – their target species – was hunted to near extinction, mostly by American whalers, beginning in 1845. By 1874, they were getting so hard to find that hunting them was scarcely worth it. That’s 29 years – the same length of time during which the Makah have been allowed to kill exactly one whale.

Most of the historic whaling took place off Baja California, where they breed. Additional gray whaling occurred from California to Alaska. The Makah took a few whales up into the 1920s. Then they stopped. In 1936, with only a tiny fraction of the original population left, the US protected them. Like so many Indigenous treaty rights regarding hunting and fishing, the Makah’s rights were near worthless because the white man had decimated the stock.

Over the ensuing decades, the whales were further protected by international treaties and federal laws, such as the Marine Mammal Protection Act (MMPA). In 1994, the Eastern North Pacific Gray Whale was removed from the Endangered Species List because it had “recovered to near its estimated original population size.” The next year, the Makah sought permission to resume hunting, asking to take five per year.

This initial request went relatively smoothly, though it took time, passing through both international and federal processes. Permission was granted in 1998. On May 17, 1999, the Makah took their first whale in generations. Though no living Makah could remember the last time they landed a whale, they knew that whaling was integral to their culture and tribal identity – and they celebrated as such. For more on their perspective, here is their website about Makah whaling. I also recommend the book Whale Snow by Chie Sakakibara (not the same as the children’s book by the same title), which explores how the entire social calendar of the Inupiat in Utqiaġvik revolves around whaling.

Natives are used to their destinies being decided by white peoples’ culture wars. This time there was a twist. Likely influenced by the overwhelming whiteness of the environmental movement, even more evident in the animal rights movement, “save the whales” trumped liberal sympathies for Native treaty rights. The 1999 whale hunt was accompanied by protests, racist taunts, and death threats against the Makah. The Humane Society and other animal rights groups sued the US government, arguing that the environmental review for Makah whaling was insufficient. Twice, judges supported the Makah, only to have their opinions reversed on appeal.

The legal challenges raised the bar in terms of permitting. In the world of environmental law, as defined by the federal National Environmental Protection Act (NEPA), there are several levels of possible review for projects using federal funds or subject to federal laws. They are:

• Categorical Exclusion – Known as a “Cat Ex,” this is for projects that “do not have a significant effect” on the environment. This might apply to things like education programs, routine maintenance of small equipment, or small habitat restoration projects. A Cat Ex is basically a stamp of approval – nothing to see here; go ahead with your project.
• Environmental Assessment (EA) – This is for larger projects that might have an environmental impact. An EA can result in: 1) A Finding of No Significant Impact, known as a FONSI, or 2) a recommendation to do an EIS.
• Environmental Impact Statement (EIS) – This is the granddaddy of them all. Typically requiring outside consultants and several years, it requires extensive analysis, a review of multiple alternatives, and two public comment periods. In my decades working in habitat restoration, we had to do this a couple times – when we were using rodenticide to eradicate non-native mice or rats from an island (because the rodents were wiping seabirds to extinction).

Over the course of 29 years, the Makah and NOAA Fisheries ended up doing two EAs and nearly three EISs to get to where we are today. There was also the issue of receiving quota from the International Whaling Commission (IWC). One of the Makah’s’ main concerns was the loss of cultural knowledge and traditions with each passing generation without a whale hunt. In the past 29 years, just asking permission from settler colonists cost them another generation.

Here’s a graphic of the bureaucratic path they have followed to date:

The current waiver and associated regulations include several limitations on Makah whale hunting:

1. They are limited to no more than five whales per year. Their quota is shared with the Chukotkan Natives of Russia. This level of take is anticipated to have “no effect on the overall population of ENP gray whales,” according to the regulations issued on June 18, 2024.
2. The permit is only for ten years, after which the population status of the whales will be reviewed.
3. They may only hunt in offshore waters, not within the Strait of Juan de Fuca. The Makah argued against this, pointing out how much more difficult and dangerous it can be.
4. There are a number of other details concerning strike limits, monitoring, etc. For a full list of the regulations, see NOAA’s FAQ here.

Let’s compare the Makah’s permitting journey to that of the Deepwater Horizon oil rig in the Gulf of Mexico, the one that exploded in 2010, spilling 210 million gallons of oil, oiling beaches from Texas to Florida, killing thousands of birds and hundreds of dolphins. The initial explosion killed 11 workers, whose bodies were never found.  

The Deepwater Horizon oil rig was drilling 18,000 below the surface in 5,100 feet of water. What kind of permitting and environmental compliance goes along with this?

It was approved with a Cat Ex.

In fact, thousands of oil rigs in the Gulf were approved with a Cat Ex, thanks to their political influence. Their permitting process hardly needs a diagram, but here it is:

Nothing to see here; you’re good to go.

~~~

For more examples of bureaucratic double standards affecting Natives, see my blogpost:

Double standards: How white bureaucracy ramps up when Native Americans are involved

For examples of white insensitivity to Makah whaling culture, see my analysis of a Facebook discussion from 2015.

For a little bit more about Neah Bay, see my “land acknowledgement” from a few years ago.