Struggle To Exercise A Treaty Right: An Analysis Of The .

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The Struggle to Exercise a Treaty Right:An Analysis of the Makah Tribe's Path toWhaleEmily Brand*TABLE OF CONTENTS. 287TABLE OF CONTENTS .289IN TRO DUCTION .291I. M AKAH W HALING H ISTORY .A.B.C.D.291The Treaty of Neah Bay .292A Brief H istory of W haling .293The Gray Whale (Eschrictus robustus) .294Laws Passed During Voluntary Makah Whaling Hiatus .2961I. THE MAKAH NATION GOES WHALING .A.B.296The First Hunt in Seventy Years .297The Makah Try to Exercise the Right to Hunt Again .2971. Metcalf v. Daley .2992. A nderson v. Evans.3033. The Makah Submit an MMPA Waiver Application .4. A Resolution By the Congressional Committee on Natural305R esources .3065. Five M akah Whale in Protest .3076. NOAA's Duty Under Anderson: The Draft EIS .III. WHAT HAPPENS NEXT: THE DIFFERENT BRANCHES TO EXERCISING THE307TREATY RIGHT TO W HALE .A.B.C.308The Administrative Path: The Plan For Now .309The Criminal Court Path: Injudicious or Ingenious? .tThe 9 hCircuit Court of Appeals and Supreme Court Review:311All R oads Lead H ere .3121. Factors the Court Could Re-Consider: .312a. Technical Elements of the Anderson Decision .J.D., University of California, Davis, 2009; B.S., Tufts University, 2002. The author wishes tothank Professor Arturo Gandara for his guidance and the Environs staff for their support.*

288University of California,Davisb.[Vol. 32:1Conflation of Tests and Limited Consideration ofC ertain F acts .3 13c. Dependence on Distinguishable Cases . 3142. The Elephant in the Room: The WCA Abrogation Theory . 316D . Future Considerations .317C O N C LU SION . :. 3 18

2009]Analysis of the Makah Tribe's Path to WhaleINTRODUCTIONThe Makah Nation secured its right to hunt gray whales over 150 years agowhen the Tribe signed the Treaty of Neah Bay with the U.S. government.1Hunting gray whales (Eschrichtius robustus) was so imperative to the Tribe'scultural, religious and subsistence needs, the members were willing to give uptheir land in the Northwest corner of Washington State to secure their ability towhale.2 Out of over 400 treaties the United States made with tribes, the Makahis the only tribe to have a treaty that specifically stipulates a right to whale.3For seventy years after signing the Treaty of Neah Bay (Treaty), the Makahexercised their treaty right to hunt whales in the Pacific Ocean. In 1915, theTribe made a critical decision to voluntarily cease whaling in order to revive thedecimated gray whale population that had been hunted to near-extinction by thecommercial whale industry.4 While the Makah waited for the population torecover, whaling and environmental regulations changed dramatically. The5international community created the International Whaling Commission (IWC)to regulate whaling and the United States passed several domestic environmentallaws, including the Whaling Convention Act (WCA), the Marine MammalProtection Act (MMPA), the Endangered Species Act (ESA), and the NationalEnvironmental Policy Act (NEPA).6 In 1970, the National Oceanic andAtmospheric Administration (NOAA), the agency responsible for marinemammals, listed the gray whale on the Endangered Species List (ESL).7In 1994, NOAA removed the gray whale from the ESL and the Makahdecided to once again exercise their treaty right to whale the species.8 Duringthe whaling hiatus, the Makah replaced the whale meat as the center of theirdiet, but the Tribe could not replace the whale as the center of their culture.With the gray whale population thriving again, the Tribe was eager to reinstateI Treaty of Neah Bay, Jan. 31, 1985, 12 Stat. 939.2"The right of taking fish and of whaling . is further secured . "Id. at art. 4.3 Anderson v. Evans, 314 F.3d 1006, 1012 (9th Cir. 2002). [Anderson I].4 William Bradford, "'Save the Whales " v. "Save the Makah ": Finding Negotiated Solutions toEthnodevelopment Disputes in the New International Economic Order, 13 ST. THOMAS L. REV. 155,173 (2000).5 International Convention for the Regulation of Whaling (ICRW), Dec. 2, 1946, 62 Stat.1716, 161 U.N.T.S. 72.6 Whaling Convention Act (WCA), 16 U.S.C.A. §§ 916-9161 (2006); Marine MammalProtection Act (MMPA), 16 U.S.C. §§ 1361-1423 (2006); Endangered Species Act (ESA), 16U.S.C. §§ 1531-1544 (2006); National Environmental Protection Act (NEPA), 42 U.S.C. §§ 43214370(a) (2000).List of Endangered Foreign Fish and Wildlife, 35 Fed. Reg. 18,319 (Dec. 2, 1970).The gray whale exists in two subpopulations in the Pacific Ocean. The Eastern North Pacificgray whale population lives along the west coast of North America and it was de-listed. The othersubpopulation, the Western North Pacific gray whale, is still endangered. For the purposes of thispaper, the term "gray whale" will refer to the Eastern North Pacific subpopulation. The Final Ruleto Remove the Eastern North Pacific population of Gray Whale from List of Endangered Wildlife,59 Fed. Reg. 31,094 (June 16, 1994).

University of California,Davis[Vol. 32:1important cultural traditions and religious ceremonies that revolve aroundwhaling. Through the support of NOAA and the IWC, the Makah hunted theirfirst whale in seventy years in 1999. 9Unfortunately, the 1999 hunt may have been the Tribe's last. Animal rightsactivists sued NOAA twice over Makah whaling, alleging the Agency did notmeet its responsibilities under NEPA, MMPA, and WCA. I0 In Anderson v.Evans, the Ninth Circuit held NOAA violated NEPA and the MMPA." Thisdecision effectively abrogated the Makah treaty right to whale by holding theMakah must get a MMPA waiver to exercise the right.1 2 Despite losing inAnderson, the Makah did not appeal the decision to the U.S. Supreme Court.Instead, the Tribe followed the Ninth Circuit's direction and submitted a MMPA3waiver application to NOAA in 2005.1The Tribe has been waiting for the last three and a half years for NOAA'sdetermination of the MMPA waiver application. In 2007, five Makah felt theyhad waited long enough and illegally hunted a whale. This fall, the UnitedStates criminally convicted the men, in U.S. v. Gonzales, and the decision iscurrently on appeal. 14 The decision will go before the Ninth Circuit in early2009 and a civil suit over NOAA's application decision, regardless of thefinding, will likely occur in 2009 as well.At the heart of this conflict are the actors who are all trying to do what theythink is right.The animal rights activists want to participate in theadministrative system to ensure marine mammal protection, the Makah Tribewants to exercise its treaty right to continue focal cultural and religioustraditions, and NOAA wants to fulfill its administrative duty, including itsfiduciary duty under the Neah Bay Treaty. Unfortunately, the combination ofgood intentions created a momentum that is no longer controllable by any oneparty and left the Makah with an indefinitely suspended treaty right.The Tribe now faces a complex legal road, juggling the administrative action,the criminal case, and an imminent civil suit. The Tribe must act carefully in9 See Metcalf v. Daley, 214 F.3d 1135, 1139 (9th Cir. 2000); Also MAKAH TRIBE, THEMAKAHINDIAN . TRIBE&WHALING:QUESTIONS&ANSWERS3 (2005),http://www.makah.com/makahwhalingqa.pdf.'0 Animal rights activists sued NOAA first in Metcalf v. Daley, 214 F.3d 1135 (9th Cir. 2000)and again in Anderson v. Evans, 314 F.3d 1006 (9th Cir. 2002). The plaintiffs in the suits includedlocal, national, and international animal rights organizations, Washington State representative JackMetcalf, and a whale watching company.I Anderson 1, 314 F.3d at 1030.12 Id. "[F]ederal defendants did not satisfy NEPA. [T]he Tribe must undergo the MMPApermitting process." Id. at 1009,1030.13 MAKAH TRIBAL COUNCIL, APPLICATION FOR A WAIVER OF THE MMPA TAKE MORATORIUMTO EXERCISE GRAY WHALE HUNTING RIGHTS SECURED IN THE TREATY OF NEAH BAY, submitted toNOAA (Feb. I1, 2005) [hereinafter WAIVER APPLICATION].14 [Order Affirming Judgments and Sentences at 1, United States v. Gonzales, No. 3:07-CR-05656 (W.D.Wash. 2008). ; Notice of Appeal at 1, United States v. Gonzales, No. 3:07-CR-05656(W.D. Wash. 2008).

2009]Analysis of the Makah Tribe's Path to Whalemanaging its actions and arguments so as not to foreclose any way to exercise itstreaty right. The Makah have three main avenues of action: 1) follow theadministrative agency MMPA waiver process defined by Anderson v. Evans; 2)re-assert issues from Anderson in criminal court; or 3) re-visit Anderson'schallenges after NOAA's waiver determination in a civil suit. Each pathinvolves a different strategy and risk. However, all paths lead to the NinthCircuit and ultimately the Supreme Court, the only place where this issue couldfinally be put the rest.I. MAKAH WHALING HISTORYThe Makah Nation has lived on the Northwest corner of Washington State forover 1,500 years. 15 Cornered by the Pacific Ocean and the Strait of Juan deFuca, the Tribe built a life around the bounty of the sea. Historically, the Makahwere highly skilled mariners, proficient in fishing, sealing, and whaling.' 6 Theyidentified especially with whales and depended on whales for "providing aprimary means of subsistence as well as essential social and culturalfunctions."' 17 When Europeans came to the area, the Makah depended on theirwhaling skills to trade for goods or profit.Whale hunting is the "symbolic heart of Makah culture."'1 8 The Tribemaintains that whaling is a more than 1,500-year tradition that is imperative totheir religion and culture. "Whaling and whales have remained central toMakah culture. They are in our songs, our dances, our designs, and ourbasketry. Our social structure is based on traditional whaling families. Theconduct of the whale hunt requires rituals and ceremonies which are deeplyspiritual."' 19 Further, the purpose and discipline that whaling gives the Tribe isirreplaceable. "The importance of whaling to the Makah culture, religion,economy, and way of life cannot be overstated."20A. The Treaty of Neah BayIn 1855, the Makah Nation and the United States signed the Treaty of NeahBay. 2 ' The treaty negotiation took place in Chinook and English22 to ensure15 Robert J. Miller, Exercising Cultural Self-Determination: The Makah Indian Tribe GoesWhaling, 25 AM. INDIAN L. REV. 165, 170 (2000).16 See Ann M. Renker, The Makah Tribe: People of the Sea and the Forest, in University eat"7 WAIVER APPLICATION, supra note 13, at 5.18 WAIVER APPLICATION, supra note 13, at 8.'9MAKAH TRIBE, THE MAKAH INDIAN TRIBE & WHALING: QUESTIONS & ANSWERS 5 (2005),http://www.makah.com/makahwhalingqa.pdf.20 Miller, supra note 15, at 176.21 Treaty of Neah Bay, supranote 1.22 Chinook was the language used on the West Coast by non-Indians and Indians to

University of California, Davis[Vol. 32:1certain tribal traditions like whaling were specifically defined. The Treatystates, "The right of taking fish and of whaling., is further secured., 23 TheMakah were willing to make great sacrifices to protect their way of life.Ultimately, the Tribe ceded 91% of their land (300,000 acres) to the U.S. inorder to retain their whaling rights.24 This is the only treaty that the U.S. signedwith a Native American tribe that specifically retains the right to whale.25B. A BriefHistory of WhalingAround the world, whaling is an ancient tradition dating back to prehistorictimes. 26 The Makah maintain their people have whaled since the beginning oftheir time, at least 2,000 years ago.27 When Europeans established trading alongthe West Coast of North America, the Makah Tribe used whale meat and bonesas tradable commodities. When Europeans started whaling off the Pacific coastin the 18 th century, the Makah competed in business with them as well.European and American whaling ventures in the Pacific Ocean expandedrapidly in the 19 th and 2 0 th centuries, as the "transcontinental railways allowed28for quicker access to the large markets of Europe and the eastern U.S.,Whaling boomed until the early 2 0 th century, when two factors brought theindustry to a near stand-still. First, the market for whale products weakened asmetals and petroleum replaced baleen and whale oil. Second, and moreimportant, whaling methods had become so proficient and aggressive thatprocessing ships "increased the slaughter to such a degree that world-wideattention began to focus on the possibility of hunting several species of whalesto extinction. 29In the 1920s, international consensus f6und the gray whale was nearextinction. In recognition of the consensus and out of respect for the species, theMakah Tribe voluntarily ceased whaling. "The fact that the tribe responsiblymade this self-imposed decision about an issue as significant as whaling furthercommunicate. It was the official treaty language, but not a language traditionally spoken by any onetribe. The Makah spoke the Makah Language, or Qwiqwidicciat. See Makah.com, MakahLanguage, http://www.makah.com/language.htm (last visited Feb. 26, 2009).23 Treaty of Neah Bay, supra note 1, at art. 4.24 2005),http://www.makah.com/history.html; See generally Russell D'Costa, Reparations as a Basis for theMakah's Right to Whale, 12 ANIMAL L. 71 (2005).25 Anderson 1, 314 F.3d at 1012.26 University of Alaska Fairbanks, Prehistoric Cultures Were Hunting Whales at Least 27 Makah.com, Makah Whaling Tradition, http://www.makah.com/whalingtradition.html (lastvisited Feb. 26, 2009).21 Murray Lundberg, Thar She Blows! Whaling in Alaska and the Yukon, EXPLORENORTH(2008), ing.htm.29 Id.

Analysis of the Makah Tribe's -Pathto Whale2009]exemplifies the Makah's sincere desire to preserve the animals."3 Theinternational community soon followed suit.In 1937, the international whaling community convened to manage whaling.In 1946, forty-two nations signed an agreement to "provide for the properconservation of whale stocks and thus make possible the orderly development ofthe whaling industry.",31 These nations created the International Convention forthe Regulation of Whaling (ICRW) and established the International WhalingCommission (IWC) as the sole governing body.32 The ICRW 33organizes whalingpractice into commercial, scientific, & aboriginal subsistence.The IWC adopted a moratorium on commercial whaling in 1986, forty yearsafter its inception. 34 The moratorium allows the opportunity to petition for anexception to the moratorium for scientific and aboriginal subsistence whaling.35The IWC meets annually to review and consider whaling requests. 36 TheCommission is comprised of one voting representative commissioner from eachmember nation.37 The annual meeting includes the Commissioners as well asothers, such as non-party 3 representatives, experts, advisors, andintergovernmental organizations. 8The petitioning country submits its request at the annual IWC meeting for themember nations to vote on the proposal. If the IWC approves the whalingactivity, a whaling quota is issued specifying the type and amount of whales fora certain period of time. Currently the IWC allows Alaskan Natives to huntbowhead whales (51 bowhead whales/year) and Makah to hunt gray whales (20gray whales/year) in 2008-2012.C. The Gray Whale (Eschrictusrobustus)The gray whale is a baleen whale, or filter feeder. The whale spends most ofits time moving slowly through shallow coastal waters feeding on plankton.This slow movement made the species attractive to hunters. Adult whalesaverage 45 feet in length, 35 tons, and can live for up to forty years. The speciesreaches maturity in five to eleven years and females bear a single calf aboutevery two years. NOAA currently estimates the population at a healthy 30,00030 Russell D'Costa, Reparations as a Basisfor the Makah 's Right to Whale, 12 ANIMAL L. 7 1,79 (2005).31 ICRW, supra note 5.32Id.33 rg/commission/iwcmain.htm#conservation (last visited Feb. 26, 2009).- wcoffice.org/documents/schedule.pdf35 Id. § llI.13.a.36 Id. § Il.b.l.i.31 ICRW, supra note 5, § 111.138 Id. § III.

University of California,Davis[Vol. 32:1individuals.39The Makah hunt the Eastern North Pacific gray whale population. The graywhale originally lived in both the Atlantic and Pacific Ocean and existed in threeseparate sub-populations: North Atlantic, Western North Pacific, and EasternNorth Pacific. 40The North Atlantic population is now extinct due tocommercial whaling and the Western North Pacific population is criticallyendangered. NOAA listed the Eastern North Pacific stock as endangered in1970, but de-listed it in 1994 when the population fully recovered. 41 TheEastern North Pacific population migrates along the West coast of NorthAmerica, from Alaska to Mexico every year (hereinafter "gray whales").Some gray whales forage in the Straits of Juan de Fuca between WashingtonState and Canada instead of traveling further north to Alaska. This population iscalled the "Pacific Coast Feeding Aggregation" (PCFA).42 Although someanimal rights activists argue this is a separate population, research indicates nogenetic difference between these whales and the rest of the stock. 43 NOAA andthe IWC treat this group as the same stock, but recognize the existence of thePCFA. The Makah's whaling plan requires the Tribe to take measures to avoidhunting those whales. 44D. Laws PassedDuring Voluntary Makah Whaling HiatusOver the seventy years the Makah voluntarily restrained from whaling toenable the gray whale population to recover from commercial whaling, theUnited States and international whaling community passed several rules toprotect ocean species. In 1946, the international whaling community, includingthe United States, created the International Whaling Convention Act .(IWCA)and the International Whaling Commission (IWC). 45 To recognize the IWCAdomestically, the United States passed the Whaling Convention Act in 1949(WCA).46 Two decades later, the United States passed a series of environmental39 NOAA Fisheries Office of Protected Resources, Gray Whale , Population /cetaceans/graywhale.htm#status (last visited Mar. 1,2009).40 reServe?searchName Eschrichtius robustus(lastvisited Mar. 1, 2009).4' List of Endangered Foreign Fish and Wildlife, 35 Fed. Reg. 18,319 (Dec. 2, 1970); FinalRule to Remove the Eastern North Pacific population of Gray Whale from List of EndangeredWildlife, 59 Fed. Reg. 31,094 (June 16, 1994).42 CALAMBOKIDIS ET AL., GRAY WHALE PHOTOGRAPHIC IDENTIFICATION FROM 1998-2003:COLLABORATIVE RESEARCHIN THE PACIFIC NORTHWEST (2004), available at p-ER-98-03rev.pdf.43

Analysis of the Makah Tribe's Path to Whale INTRODUCTION The Makah Nation secured its right to hunt gray whales over 150 years ago when the Tribe signed the Treaty of Neah Bay with the U.S. government.1 Hunting gray whales (Eschrichtius robustus) was so imperative to the Tribe's

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