Makah Legal Battle may yet be won

According to an Associated Press report (byline Matthew Daly on Thursday, October 20) it appears that the Makah Indian Nation, a tribe in northwest Washington State, is making progress in its argument that its 1855 Treaty of Neah Bay between the Makah Nation and the US Government is a legally binding and meaningful document. Progress for the Makah came today as a majority of the Resources Committee in the House of Representatives issued a resolution supporting the tribe's efforts to overcome a lawsuit brought by animal rights activists against resumption of Makah whaling.

"The panel approved a non-binding resolution Wednesday urging the Bush administration to uphold whaling rights guaranteed to the tribe under an 1855 treaty with the federal government. The resolution, sponsored by the panel's chairman, Rep. Richard Pombo, R-Calif., calls a waiver process required by the National Marine Fisheries Service "burdensome, costly and ... tantamount to a denial of the tribe's treaty rights." The resolution goes on to urge Congress to express "its disapproval of the abrogation of the tribe's treaty rights, and that the government of the United States should uphold the treaty rights of the Makah Tribe. The Republican-led panel approved the measure 21-6, with five Democrats joining 16 Republicans to vote in favor."

Those on the Resources Committee who disagreed with the resolution are siding with activist groups that oppose whaling on cultural grounds, rather than on scientific evidence that the gray whale has recovered from the industrial whaling of the 19th century. The International Whaling Commission has given approval to the US to allow the Makah to take a quota of 20 gray whales over a five-year period. Only one animal of this quota was taken (in 1999) before the HSUS and others brought suit against the tribe on grounds that their harvest was a violation of the Marine Mammal Protection Act.

Incidentally, American Eskimos have a waiver from the MMPA to take the (still endangered) bowhead whale in a similar IWC indigenous whaling quota. It appears that some politicians think that Americans are more apt to approve of the Eskimo waiver because they are familiar with and sympathetic to Eskimo people, and that to deny Eskimos the waiver would have been politically risky. The lesser-known Makah tribe is being denied its legal right to whale for reasons of cultural continuity in a blatant denial of their identical legal standing with Eskimo whalers.

The House Resources Committee resolution urges the Congress to "stand behind the promises given to tribes over the years." Activist lawsuits, in contrast, were brought in the 9th District Court of Appeals and that court held that the suits could be pursued, with Makah whaling halted pending final judgment.

In the United States, treaties have legal precedence over domestic law. Clearly, the activist lawsuits against the Makah tribe should not be honored in US courts. Rick Marks, lobbyist for the Makah, congratulated the Resources Committee for its position. Incidentally, this committee also "oversees Indian issues in the House" according to the AP writer, and Chairman Pombo noted, "Congress has an obligation to uphold the Makah treaty rights." The AP writer notes that Indian tribes have contributed some $221,000 to Pombo's PAC since 1999, a political situation that is neither illegal nor unusual, but which was surely brought to his attention by activists who oppose resumption of any whaling. The AP writer notes, "Federal records do not list any contributions to Pombo or his leadership committee by the Makah."

IWMC congratulates Congressman Pombo on his role in convincing the House Resources Committee to take this stand. We believe that the Makah must be given the same level of consideration as has been afforded Eskimo whalers, for both legal reasons and for reasons of respect for their indigenous rights. No damage to gray whales shall result when Makah hunters take their full quota of these abundant animals. The cultural prejudices of animal activists must not be allowed to prevail in any way that ignores the legal mandates of treaty law in the United States. The denial of Makah treaty rights is a case of social injustice that must be corrected.