On September 8, 2007, five Makah whalers harpoon and then shoot a gray whale in the Strait of Juan de Fuca off their reservation on the Olympic Peninsula. The whale hunt, conducted without permission from the Makah tribe or the federal government, comes eight years after a Makah whaling crew, including some of the same men, conducted a successful, and legal, whale hunt for the first time since the 1920s. Since that brief success, court challenges by whaling opponents have stymied the Makahs' efforts to exercise the right to hunt whales guaranteed by the 1855 Treaty of Neah Bay. Frustrated by the delays and what they see as violation of their treaty rights and religious freedom, the five whalers succeed in catching the whale, but are detained by the Coast Guard before they can bring it to shore. The dead whale is allowed to sink to the bottom of the strait and the hunters are condemned not only by animal-rights activists but also by tribal leaders.
Whaling Tradition
For centuries, the Makah hunted gray whales that migrated in the thousands past their homeland around Cape Flattery every spring and fall. In the Treaty of Neah Bay, they became the only tribe in the United States with a treaty expressly guaranteeing the right to whale. However, Makahs did not hunt gray whales after the 1920s, when commercial whaling decimated the population.
By 1994, after the gray whale's population rebounded and it was removed from the Endangered Species List, the Makah decided to resume whaling. The U.S. government supported the tribe's request and helped win approval from the International Whaling Commission. The Makah decision generated a storm of protest from anti-whaling and animal-rights groups. Opponents’ initial court challenges were rejected and the first Makah whale hunt in more than 70 years took place in May 1999.
Whalers in the carved cedar canoe Hummingbird, backed up by a motorized support boat, sought whales while protestors in speedboats and Zodiacs tried to stop them. On May 17, 1999, the whalers harpooned a 30-foot gray whale, which was shot and killed by a rifleman on the support boat, then towed to Neah Bay. A potlatch was held the following weekend to celebrate the successful hunt, while protestors condemned the whale's death.
Legal Obstacles
Then in 2000 the 9th Circuit Court of Appeals sided with whaling opponents and suspended the hunt. Several years later, the court ruled that, despite the treaty, both a full environmental impact statement evaluating the hunt's potential impacts and a waiver of the federal Marine Mammal Protection Act were required before the Makah could hunt gray whales in their traditional waters. In 2005 the Makah tribe began the lengthy process of attempting to comply with the court ruling.
Many Makahs disagreed with the stringent restrictions that the court had placed on their right to hunt whales, and some did not want to wait years for the uncertain process of obtaining federal permission to play out. By 2007, a group of whalers, including Wayne Johnson, a Makah whaling commission member who had headed the authorized hunt in 1999, were making plans to harvest another whale, plans that they kept secret from tribal authorities and even from their own families and friends. The group decided to act after a meeting in which a lobbyist for the tribe predicted that it would take two more years to win permission for a whale hunt (a prediction that in the end proved to be overly optimistic).
Hunting Again
Early on the morning of Saturday, September 8, 2007, five whalers set out from Neah Bay in two motorized boats. Besides Johnson, they were Theron Parker, the harpooner on the 1999 whaling crew; Andy Noel, who steered the canoe in 1999; Frankie Gonzales; and William Secor Sr. Johnson later explained that the whalers did not use the canoe in the new hunt to limit the number of people subject to arrest and to avoid having the canoe impounded.
Spotting a 40-foot gray whale, the hunters harpooned it with multiple harpoons with floats attached, to keep the whale afloat while towing it to shore. Then, as in 1999, they attempted to kill it with a high-powered rifle (a procedure used to ensure a quick death). However, according to a report later prepared by the tribal biologist, the hunters lost the large caliber rifle overboard and were unable to kill the whale with the other guns they had. A Coast Guard boat arrived about 45 minutes after the whale was harpooned, detained the whalers, and refused their request to allow them to finish killing the animal. When tribal officials learned that the whale had been shot, they requested federal approval to euthanize it, but by the time approval was received hours later the whale had already died. Because the hunt was illegal, federal officials refused to permit the whale to be harvested. It was allowed to sink deep beneath the Strait of Juan de Fuca.
Prosecution and Conviction
When news of the whale's death broke, anti-whaling activists condemned the killing and demanded that the hunters be prosecuted. This time, in sharp contrast to 1999, the hunt was also denounced by tribal leaders, who criticized the whalers for harming the tribe's image and jeopardizing its request for legal permission to hunt whales. While acknowledging, indeed sharing, the whalers' frustration over the delays, Makah officials insisted that the men, who were briefly jailed in Neah Bay after the Coast Guard turned them over to tribal police, would be prosecuted in tribal court.
In addition to the tribal charges, the five were indicted in federal court. Despite the condemnation and criminal charges, the whalers defended their hunt. Johnson said, "The five of us did this to protect the kids ... If nobody exercises their treaty right -- we don't have one" (P-I, "Makah 'Treaty Warriors'..."). Defense attorney Jack Fiander, who cited religious freedom in an unsuccessful effort to get the charges dismissed, called the hunt civil disobedience and explained:
"These folks haven't been able to harvest a whale and conduct all the ceremonies that their whaling culture is tied to since 1999 ... It's like someone telling you that you can't go to church for 10 years" ("Makah 'Treaty Warriors'...").
Three defendants -- Parker, Gonzales, and Secor -- ultimately accepted a plea deal in federal court. They pled guilty to the misdemeanor of violating the Marine Mammal Protection Act in return for the prosecutor recommending probation rather than jail and the tribe waiving the charges in tribal court. Johnson and Noel were convicted of the same misdemeanor after federal magistrate Kelley Arnold rejected their religious freedom defense. Arnold sentenced Johnson to five months in jail and Noel to three months, and stunned the men and their families when he ordered them into custody immediately.
Despite the jail time, animal rights activists, who had criticized the plea bargain with the other defendants, called the sentences light. Although whaling opponents cited the 2007 hunt in their efforts to block the Makah waiver request, the federal government continued to process the request. The National Marine Fisheries Service released a draft of the environmental impact statement in May 2008, and public hearings began shortly before the whalers were sentenced.
