For 17 years, the Makah, a tribal nation in northwestern Washington State, have waited for the federal government to decide whether they can resume hunting whales, which is central to their culture. Laws that protect endangered species and marine mammals have prevented them from whaling—even as the population they want to hunt has recovered.
On July 1, the federal government released a draft environmental impact statement suggesting that permission will be likely be granted as early as next year. The report lays out a “preferred” decision that waives the prohibitions on whaling in the Marine Mammal Protection Act for up to 12 whales over six years. Additional restrictions on the timing and place of the hunt are also included. The final decision, however, is still months away.
In some ways, the fierce opposition the Makah have encountered in their quest to resume whaling reflects the success of the conservation movement; the “Save the Whales” slogan of the 1970s rallied support to prevent their extinction but also turned cetaceans into minor cultural deities. Many conservationists, however, are now enthusiastic about respecting Indigenous rights and relying on Indigenous knowledge. With this change, the Makah are hoping conservationists will back their right to whale—a right they negotiated to keep in their 1855 treaty.
I visited the Makah Reservation this spring. It’s arguably one of the most beautiful places on Earth, fern-draped and mossy, with towering sea cliffs, wave-battered islets, conifers with their tops tangled in low clouds, and the ever-present smell of salt in the air. The Makah have no casino; their economy is based on fishing.
They have always looked to the sea for their needs—material and spiritual. When territorial governor Isaac Stevens asked the tribe what areas they wanted to reserve, Chief Ćaqa·wiƛ (pronounced “tsuh-ka-wihtl”) famously replied, “I want the sea. That is my country.” Before Europeans arrived, the Makah traded halibut, seal skins, and whale oil throughout the Pacific Northwest. Whale oil was measured by the pelican beak. Makah whalers sang to whales they pursued, asking for them to give themselves to the people. When a whale was killed and towed ashore, it was welcomed and thanked with ceremony. Eagle feathers were laid upon its head.
Once Europeans got into the whaling business, though, hunting dramatically reduced whale populations. In response, the Makah voluntarily quit whaling in 1928, nearly two decades before many countries agreed to abide by the International Convention for the Regulation of Whaling, which banned commercial whaling and set catch limits on subsistence hunts.
It was the right thing to do, but it came at a price.
“When you break those connections that define who you are, people struggle,” Makah Chairman Timothy J. Greene says. “Being disconnected from our spiritual practices has a negative impact. Imagine a Catholic person not being able to go to Mass. The training and spiritual preparation we go through [to prepare for a hunt] helps make our community whole and really be who we are.”
Joshua Reid is a registered member of the Snohomish Indian Nation and an associate professor of American Indian studies and history at the University of Washington in Seattle. He served as an expert witness for the tribe during various hearings on the issue. Reid characterizes the Makah’s desire to resume hunting as less an attempt to “live in the past” than an attempt to create a “traditional future.” Just as watermen in the Chesapeake Bay continue to find strength and community around crabbing, even though they use modern gear; just as American ranchers base their identify around rearing cattle for consumption, even though they use modern biotechnology and computers—so too Makahs seek to connect with their culture, create a sense of community cohesion and pride, and enact their longstanding spiritual relationship with the whale, in an evolving, contemporary way.
When gray whale numbers had recovered to around 20,000 in 1995, the tribe was eager to introduce a new generation to whaling. They notified the U.S. government of their intention to resume the whale harvest for ceremonial and subsistence purposes.
In 1999, despite attempts by animal rights activists to disrupt the hunt, tribal members killed a single whale, which they harpooned in the traditional manner from a canoe named the Hummingbird. The only major deviation from tradition was that after it was harpooned, the whale was also shot, so it would die quickly. On the beach, Makah people ate fresh blubber. A 13-year-old boy was quoted in the Seattle Times, saying, “I've heard so many stories about this from my grandpa. Now I finally know what he meant." In a celebratory potlatch, a ceremonial feast, the whale was shared with Indigenous people from around the world.
Then in 2002, a judge ruled in a case brought by anti-whaling activists that the tribe had to apply for permission to hunt whales under the Marine Mammal Protection Act. The Makah did so on February 14, 2005, seeking to take up to five whales a year.
In a recent letter to the Makah, a representative from the National Oceanic and Atmospheric Administration (NOAA)—the agency that administers the Marine Mammal Protection Act—estimated a final decision would come by “early 2023.” “We understand this has been a lengthy administrative process and appreciate your patience,” she added.
NOAA officials declined to be interviewed, citing “legal requirements under the Administrative Procedures Act,” which a spokesperson said “prohibit agency officials that are involved in the decision-making process from discussing the merits of the case.”
Fighting for treaty rights
The idea that nation-to-nation treaty obligations should be subject to federal regulations at all seems legally dubious, according to Reid. “Most non-natives misunderstand treaty rights,” Reid says. “The treaties don’t give Native peoples rights. Native people reserved rights and extended rights to non-natives.” In other words, the 1855 treaty didn’t create the Makah’s right to hunt whales; it protected a right that already existed and was held by select tribal members before Europeans arrived. Thus in Reid’s view, the idea that this right should be superseded by a whale-protection law passed in 1972 seems absurd. “Treaties are the supreme law of the land,” he says, referring to Article 2 of the U.S. Constitution.
Despite this, Greene says the Makah are happy to accept some “reasonable guidelines,” backed by science, around the exercise of their treaty rights. “We have a strong interest in making sure that the stocks we do target are sustainable,” he says.
But 18 years of administrative review stretches the meaning of “reasonable.” Greene has spent much of his 12 years on the Tribal Council fighting for whaling rights and other treaty rights. It’s a shame, he says, because treaty rights could be a “powerful tool” for protecting nature. As early as the late 1970s, a federal judge wrote that if the species that Indigenous people harvest are driven extinct, “the right to take fish would eventually be reduced to the right to dip one’s net in the water … and bring it out empty.”
In effect, Greene says, the treaty doesn’t just protect a resource like salmon. “It protects the habitat that supports that salmon.” He’d like to see Native people and conservationists working together to use treaty rights as a way to protect land and sea ecosystems.
Conservation versus preservation
Shi Shi beach, famous for its beauty, is in Olympic National Park, but the trailhead to access it is on the Makah Reservation. Alongside the trail, many of the cedar trees bear long, neat, pale orange indentations on their trunks—signs that their bark was harvested to make baskets and other traditional goods. If only a portion of the bark is taken, it doesn’t harm the tree. If preservation is leaving other species untouched—never harvesting bark, never fishing, never hunting whales, then conservation is interacting with other species—planting them, tending them, hunting them, and harvesting them—in such a way that they will thrive in perpetuity.
“We manage them long-term, not for shareholders, not for board bonuses, but for future generations,” Greene says. “That's essentially a conservation mindset.”
When whale numbers were dangerously low, a moratorium on whaling made sense from both a conservation and preservation perspective. But as whales have begun to recover, preservationists continue to oppose killing whales, on principle. The Sea Shepherd Conservation Society, one of the most vocal opponents to the hunt, released a statement on the proposed Makah hunt waiver in 2019: “Sea Shepherd opposes the intentional killing of cetaceans, no matter the circumstances. From the Faroe Islands to Iceland, from Japan to Norway, Sea Shepherd’s opposition to whaling is categorical and uncompromising.”
Will Anderson, who was the lead plaintiff in the 2002 case that kicked off the current process, is still opposed to the hunt. Now running a nonprofit in Seattle called Green Vegan, Anderson says his reasons have to do with animal welfare, species conservation, and his own personal connection to the species. In the late 70s and early 80s, Anderson spent several winters in the Baja California lagoons where gray whales give birth.
“I would go out with my kayak and just float amongst them. I listened to them at night. I would wake up and go to sleep with the whale blows just 50 feet away,” he says. “Gray whales and whales in general opened me up to larger environmental issues, which became my life.”
Through the “Save the Whales” campaign, extensive reporting on whales and their culture, and the growth of the whale-watching industry, whales have become sacrosanct in a way that other animals hunted in America—from elk to salmon—have not. Many opposed to the whale hunt also oppose all hunting and view their opposition simply as the right thing to do to protect animal welfare.
But others see whales as different from other animals. Public comment on the proposed Makah hunt is filled with examples: “These whales have names, have been studied for years by many in the marine biology fields, and are well loved by many people all over the world,” one commentator wrote. They are, another added, “the intelligent gentle giants of our world oceans.” A third wrote: “Please protect these whales, they are special.”
One could also argue that by building a conservation movement through rallying opposition against whaling, conservationists now have an obligation to protect the Makah from the blowback when they want to hunt a population that is no longer endangered.
In recent years, some leading conservation nonprofits have begun to do just that, coming out publicly behind the Makah’s quest to resume whaling. In 2021, the Sierra Club wrote: “While the Sierra Club generally opposes hunting and harassment of marine mammals, we recognize the importance of supporting subsistence hunting by Indigenous people. Hunting whales is an essential part of Makah cultural identity and is necessary for the Tribe to realize their ceremonial, spiritual, and subsistence needs.”
In 2020, Sally Jewell, the interim CEO of the Nature Conservancy and a former U.S. secretary of the interior, wrote: “The Makah people have been good stewards of their resources—the forests, coastlines and Pacific Ocean have shaped their culture and sustained them for thousands of years. I respectfully request that you honor the Makah Tribal Nation’s treaty right to hunt grey whales.”
“We are very pleased that we have gotten to a point where they are actually willing to support us in writing,” Greene says. Greene wishes that members of the public who stand for social justice would also support the Makah’s rights as well. “If you really believe in racial equality and environmental justice, those treaties need to be honored,” he says.
These days it is trendy for conservationists to talk about tribal sovereignty. But true support of the right of Indigenous nations to run their own affairs means doing so even when they do things that the conservation establishment would not—such as killing and eating an immensely charismatic and popular marine mammal.
And the Makah are asking permission for a cultural hunt of only a few whales a year. Back in 1855, when Chief Ćaqa·wiƛ made sure to reserve the right to whale, he wasn’t doing so for purely spiritual reasons.
According to Reid, who researched the tribe’s history for his 2015 book The Sea Is My Country: The Maritime World of the Makahs, “the Makahs were trading 30,000 gallons of whale oil to non-natives every year in the 1850s and they were reserving another 30,000 gallons for their own use and trading with neighboring tribes.” That works out to about 26 whales a year. That is what Ćaqa·wiƛ thought he was protecting.
More broadly, government authorities making treaties made racist assumptions about their negotiating partners, seeing all Native Americans as living in “subsistence” economies. Treaty rights have thus been interpreted as protecting “subsistence” levels of harvest. But many tribes, including the Makah, were very much regional economic actors, harvesting enough for themselves and for trade or sale. They weren’t barely eking out a living. They were doing well. “They took enough to have a good life,” Reid says.
Tribes generally harvested more than mere “subsistence” levels of resources but not so much that they wouldn’t be able to continue harvesting in the future. “They did that within an entirely different system driven by relationality: They will feed us, if we will take care of them,” Reid says. “I imagine that some time back in history there was a steep learning curve to get to that system of reciprocity.” A more “originalist” interpretation of many treaties would be to read them as protecting rights to commercial harvest of natural resources. But to be clear, the Makah are absolutely not seeking to hunt whales commercially. Their goal is to simply be Makah.
Bureaucracy and justice
The new NOAA report—technically a “supplemental draft environmental impact statement”— builds on a previous draft by folding in information about an “unusual mortality event” in 2019 that saw more than 100 gray whales strand and die on the U.S. West Coast. It also takes into consideration a recommended decision by administrative law Judge George J. Jordan, which was released in 2021 after a 2019 hearing on the matter. In his decision, Jordan recommended that NOAA grant the tribe an exemption from the Marine Mammal Protection Act. Taking such a limited number of whales would, the judge wrote, have “no meaningful impact” on the gray whale population in question and “little effect on the ecosystem.”
Now that the report has been released, a public comment period will be followed by a final environmental impact statement, and after that the final rulemaking. The permit to hunt whales will likely be renewed every three years, and this entire process will probably have to be repeated every 10 years for the exemption to stay valid. The tribe would like a legislative exemption added to the law, like the one already in place for Alaskan Native peoples, which allows them to hunt marine mammals for subsistence or “for purposes of creating and selling authentic native articles of handicrafts and clothing.”
At the far end of the Shi Shi trail, I emerge from the trees and find a crescent of sand and driftwood, and beyond that, the sea: a great blue-green expanse, the skin of a cold realm of kelp, halibut, and whales. If this once was the Makah’s undisputed country, it is now also a place of clashing values about humanity’s relationships–nation to nation and species to species.