Verdict against Makah whaling upheld; new rulings on Native hunting rights
From ANIMAL PEOPLE, December 2003:
SEATTLE–The U.S. Court of Appeals for the 9th Circuit on
December 1, 2003 upheld a December 2002 ruling by a three-judge
panel from the same court that the National Marine Fisheries Service
failed to comply with the National Environmental Policy Act in
permitting the Makah Tribal Council of Neah Bay, Washington, to
exercise a claimed treaty right to hunt gray whales.
“The plaintiffs in the case–the Fund for Animals, the
Humane Society of the U.S., and other groups and individuals–argued
that the government failed to adequately study the ways in which the
Makah whale hunt could set a dangerous precedent and adversely affect
the environment,” explained Fund for Animals spokesperson Tracy
The December 2002 ruling required NMFS to prepare a full
environmental impact study, a project of several years’ duration,
if Makah whaling is to resume. NMFS and the Makah Tribal Council
have now lost three successive verdicts on the issue, but Makah
tribal vice chair Michael Lawrence told Seattle Times staff reporter
J. Patrick Coolican that the tribe will appeal again.
Observed Coolican, “The Makah last year slashed their
whaling budget and eliminated the Makah Whaling Commission,” which
had pursued the opportunity to kill whales ever since gray whales
were removed from protection under the Endangered Species Act in
1994. Gray whales had been federally protected since 1936, 30 years
before the U.S. had any blanket form of endangered species law, but
were deemed to have recovered to their historical population level.
Heavily subsidized by federal grants, the Makah killed one
gray whale in May 1999, but have not tried to kill any whales since
The December 1 Court of Appeals ruling was the third recent
appellate verdict of note on aboriginal hunting rights, two of them
rendered in the U.S. and the third in Canada.
The Supreme Court of Canada ruled 9-0 on September 18 that
mixed-ancestry descendants of French settlers and Native Americans,
called Metis, have the same broad-status hunting rights as
full-blooded Native Americans, if they can demonstrate a direct link
to their historical community.
Three weeks later, the U.S. Supreme Court refused to hear an
appeal of a 2002 ruling in the opposite direction by the Montana
Supreme Court. The Montana court upheld the 1997 conviction of
non-tribal member Sandra Shook for illegally shooting a deer on the
Flat-head Indian Reservation, even though she was on her neighbor’s
property with permission, had a hunting license, and killed the
deer during hunting season.
The Canadian verdict reduced the scope of provinces to limit
native hunting, while the Montana verdict affirms the ability of
states to prevent tribes from leasing hunting rights to non-natives.