Date: Sat, 29 Apr, 2000

Legality of Makah Whale Hunt a Gray Area

By Lucy Chubb - ENN News

For the second successive year, members of the Makah Indian Nation this month embarked on a hunt for gray whales off the coast of Washington. And for the second year in a row, the legality of the hunt is causing heated debate and radical action.

The Makah maintain that their right to hunt gray whales is spelled out in a treaty with the U.S. government drawn up in the mid-19th century.
"Under the treaty made by the United States with Makahs in 1855, the United States promised to secure to the Makahs the right to engage in whaling," the Makah web site notes.
"The treaty, which was ratified by the United States Congress in 1855, is the law of the land under the U.S. Constitution and has been upheld by the federal courts and the U.S. Supreme Court."

"The treaty language is crystal clear," said Brian Gorman, public affairs officer for the U.S. National Marine Fisheries.

Conservation groups fighting to stop the whaling claim the Makah are acting illegally because the tribe has not received permission from the International Whaling Commission to hunt gray whales.
"To us, the legal situation surrounding the issue of Makah whaling is very clear. It is illegal," said Paul and Helena Spong of Orcalab, a whale research station on Hanson Island in British Columbia, Canada.

"The only 'law' applicable is that of the International Whaling Commission which has been given the responsibility, by international agreement, for regulating whaling. The IWC has not approved Makah whaling."

Ocean Defense International, a group that is actively trying to halt the hunt, shares this view.
"IWC did not sanction the hunt," said ODI representative Jonathan Paul.

Based in Great Britain, the IWC is an international coalition of countries that oversee the whaling industry. When the commission was established in 1946, whaling was legal. The original purpose of the group was threefold: to conserve whale stocks, develop the whaling industry and take into account the consumers who use whale goods.
"The job of the IWC was to conserve whale stocks with a view to making the largest possible catch," said Martin Harvey of the organization.
"But the emphasis has moved from catching whales to conserving them."

The method by which the IWC conserves whale stocks is by establishing quotas. "IWC is only permitted to set total catch limits," said Harvey. Countries with quotas are responsible for any legal situations that might arise from their whaling, he said.

The IWC had long protected the gray whale, according to Harvey, after overhunting had reduced its numbers drastically to less than 2,000 animals. Russia's Chukotka tribe, which lives on the Siberian coast, was allowed to hunt whales and assigned a quota through the Russian Federation.

In the past several decades, gray whale numbers have recovered to an estimated 21,000 individuals. The animal was removed from the U.S. endangered species list in 1994.

In 1997, the United States on behalf of the Makah and the Russian Federation on behalf of the Chukotka proposed a catch limit that, between the two countries, would not exceed 140 whales per year for the years 1998 through 2002, and no more than a total 540 during that period.

The whales that the two tribes were to hunt come from the same migration corridor in the northeastern Pacific Ocean.

"At our annual meeting in 1997," said Ray Gambell, secretary of the IWC, "after extensive discussion, the IWC granted the catch of gray whales requested."

The United States and the Russian Federation agreed that the Makah could have 20 whales out of the five-year limit, said Gorman, with a catch of no more than five whales per year over that period.

The schedule for the International Convention for the Regulation of Whaling states that the taking of gray whales is permitted "when the meat and products are to be used exclusively for local consumption by the aborigines whose traditional aboriginal subsistence and cultural needs have been recognised." The wording has since been updated but the essence of the decree remains the same.

The issue now is whether this language constitutes "approval" for the Makah to take gray whales.
"This decision implicitly recognized that the Makah Indian Tribe would want to utilize part of this quota," said Gambell, "since the IWC received the needs statement and supporting arguments from the government of the USA on its behalf. However, you will not find anywhere a formal statement from the IWC that the Makah whale hunt is legal, since it has not made such a determination."

Gorman asserts that the IWC's inaction to change catch limits after last year's gray whale kill by the Makah constitutes consent for the take of gray whales.
"There is thus a de facto acceptance of this hunt as falling within the IWC's requirements for aboriginal subsistence whaling," he said, "but with a degree of hesitation by some of our members as reflected in the discussions which took place in setting the original catch limits. It was precisely for that reason that the recognition of the aboriginal subsistence character of the hunt was left deliberately vague, with the onus ultimately falling on the government of the U.S.A."

Spong does not buy this argument. "No matter how much some maintain that the IWC gave ... permission by stating that it's up to the parties to settle issues that arise over quotas, the fact remains the IWC did not approve a quota for the Makah."

Spong's position is shared by other environmentalists and conservation organizations, many of which signed a document supporting this opinion at the 1999 IWC meeting in Grenada.

The paper says, "We the undersigned observers at the 51st meeting of the International Whaling Commission in Grenada wish to point out that the IWC has not formally approved the killing of gray whales by the Makah tribe of Washington State, U.S.A." Groups that support the document include the International Wildlife Coalition, Humane Society International, Cousteau Society and the Canadian Marine Environment Protection Society.

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