Court rebuffs Makah appeal over whaling

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Registered: 03-23-2003
Court rebuffs Makah appeal over whaling
14
Tue, 06-08-2004 - 6:00pm
SEATTLE POST-INTELLIGENCER
http://seattlepi.nwsource.com/local/176853_makah08.html

Court rebuffs Makah's appeal over whaling

Ruling may put tribe's next hunt off for years


Tuesday, June 8, 2004


By LEWIS KAMB
SEATTLE POST-INTELLIGENCER REPORTER


For the third time, a federal appeals court ruled yesterday the Makah Tribe must comply with more stringent environmental procedures before seeking to hunt gray whales -- a decision likely to mean years of process before tribal whalers will know whether they can ever legally hunt again.


The decision from a three-judge panel of the 9th U.S. Circuit Court of Appeals essentially echoed two previous rulings by the court:


The Makah Tribe cannot hunt gray whales until the U.S. government conducts a full-blown environmental analysis; and the tribe and the federal agency that sponsors its hunts also must win an exception to the Marine Mammal Protection Act before any tribal whaling can take place again.


Animal rights activists who took the U.S.-sponsored Makah hunts to court hailed yesterday's ruling as the latest sign that America's legal system doesn't support the killing of whales.


"The Court of Appeals has been emphatic on this point ... and it's obviously something the American public doesn't want," said Michael Markarian, director of the Fund for Animals, a group among a coalition that sued to stop the tribe's hunts off the Olympic Peninsula.


Reached by telephone yesterday, a tribal councilman at the Makah Indian Nation in Neah Bay was stunned by the ruling, saying tribal officials had not yet been made aware of it.


Councilman Micah McCarty, who also is on the tribe's Whaling Commission, added tribal officials have not had a chance to contemplate how to respond to the ruling.


After hearing the news, tribal member Wayne Johnson vowed yesterday that his tribe would whale again.


"It's another treaty broken by the United States, " said Johnson, who was the tribe's whaling captain during the tribe's successful whale hunt in 1999. "I am going whaling again."(me:  WHY?  Why do they need to hunt a sentient being just because of 'tradition'?  Don't whales already face enough manmade dangers in their quest to survive?)


John Arum, a Seattle lawyer who prepared the tribe's unsuccessful appeals to the court's rulings on the matter, called yesterday's opinion "obviously a bad decision for the tribe."


In order to pursue whaling, Arum said, the tribe -- the only Indian group in the United States with an explicit treaty right to hunt whales -- now essentially has two options:


It can petition to have the case heard by the U.S. Supreme Court -- an unlikely prospect given that the court accepts very few cases each year.


Or, the tribe can simply comply with the court's ruling -- a process that likely will take "several years, at least," Arum said.


The ruling requires the National Marine Fisheries Service to do an environmental impact study to ensure that the tribe's whale hunts would not hurt gray whale populations.


It also calls for the tribe to seek a waiver to the federal Marine Mammal Protection Act, which generally outlaws anyone in the United States from harming or killing marine mammals.


Lawyers for both sides have said they know of no American Indian tribe ever to seek such a waiver, and few non-Indians who've applied for the exception to the law have ever won one.


Even if the tribe ultimately decides to appeal the case to the nation's highest court, Arum said, "no doubt, we'd also move forward in the MMPA process" as well.


"The tribe wants to get out whaling as soon as possible."


Even as the tribe has sought to appeal the three-judge panel's ruling on the issue -- twice unsuccessfully seeking to win a review by the full 9th Circuit -- federal marine officials have been conducting the environmental study called for by the court.


That upsets activists like Markarian, who yesterday again called the government's support of the Makah whale hunts a waste of tax dollars.


"We hope the Bush administration finally understands the meaning of the word 'No,' " Markarian said. (me:  Not likely, hasn't happened yet...  The OXe Writing The Message Is Winking )


Although the court panel previously said its ruling on the case in no way addresses abrogating -- or abolishing -- guarantees afforded to the tribe in its treaty, some Indian law experts say it essentially does just that.


Robert Anderson, director of the University of Washington's Native American Law Center, said yesterday that by tacking restrictions onto the tribe's treaty right to hunt whales, the court essentially is telling the Makah "you can exercise your right, but only if you have our preapproval."


"I would say that's an abrogation in my view," said Anderson, who fears the case could be used as a precedent to assail Indian treaty rights across the nation.


But Eric Glitzenstein, a Washington, D.C., lawyer for the anti-whaling opponents, yesterday called suggestions the case could have sweeping implications on treaty rights "a sky-is-falling type of argument."





P-I reporter Lewis Kamb can be reached at 206-448-8336 or lewiskamb@seattlepi.com


© 1998-2004 Seattle Post-Intelligencer


I just don't get it.  They don't need to kill any whales...why do it just for "tradition's" sake?  To me, it seems like some macho right-of-passage thing that should have been updated a century or so ago.  Oh, and it's not like they are hunting with 'traditional weapons'...no...they have power boats, 'power' harpoons (not the traditional hand thrown type), radios, etc.  I can see some of those items for safety's sake because just being out there is dangerous, but if they want to hunt whales because "it's traditional", then they should have to use the "traditional" weapons.





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iVillage Member
Registered: 03-18-2000
Wed, 06-09-2004 - 10:46am

I hope they don't receive permission. I agree this is probably a macho rite of passage.


Humans are destroying our oceans...... coral reefs are dying,

 


Photobucket&nbs

iVillage Member
Registered: 03-18-2000
Thu, 07-22-2004 - 11:54am

A Couple More Whale tales...............

 


Photobucket&nbs

iVillage Member
Registered: 03-23-2003
Thu, 07-22-2004 - 12:04pm

We have NO NEED TO HUNT WHALES....arrgghhh!!!


iVillage Member
Registered: 04-03-2003
Thu, 07-22-2004 - 12:08pm
I agree with you fully on this... "... but if they want to hunt whales because "it's traditional", then they should have to use the "traditional" weapons." But I also feel that the requirements now being put in place do indeed constitute a violation of the treaty the US signed with the Makah regarding their hunting of whales.

If the US wants to renegotiate the treaty or construct a new one for submission to the Makah for their approval, fine, no problem with that. But trying to litigate or legislate changes into a treaty which has already been signed by both parties, over the objection of one of those parties isn't proper, not if you (generic of course) want any semblance of trust and good faith between the parties.

~mark~

iVillage Member
Registered: 03-23-2003
Thu, 07-22-2004 - 8:10pm

It was a different world when those treaties were written.


iVillage Member
Registered: 04-03-2003
Thu, 07-22-2004 - 8:32pm
If current conditions don't apply as they did when the treaty was signed, then you draft a new one for both parties to consider. What you don't do is allow one party in a signed treaty to change that treaty unilaterally.

I agree that hunting whales is no longer necessary for them. No argument. But a treaty is a treaty, or at least it is if you want to maintain any sort of legitimacy with the group in question. That's my point... not that whaling should be allowed, but that treaty obligations should be observed and a new treaty drafted if necessary to address the changed situation.

~mark~

iVillage Member
Registered: 03-23-2003
Thu, 07-22-2004 - 8:52pm
But, despite the treaty, as US citizens are they not obligated to follow the same laws that the rest of us do?

iVillage Member
Registered: 04-03-2003
Thu, 07-22-2004 - 10:07pm
Yes and no. As US citizens they are of course bound by our laws, but the treaty in question makes certain legal exceptions for them... that's why there's a treaty in the first place, to document those exceptions as they apply to the Makah people.

"Contracts can be invalidated by changes in legislation...I would assume treaties would be the same."

In which case the contract would require renegotiation, and the same should legally and logically apply here. But the US isn't playing by that game, and is instead simply trying to modify the existing treaty unilaterally.

"However, in the meantime, allowing them to do something that is illegal for all other US citizens is wrong as well."

Morally wrong perhaps, but not legally wrong. The treaty our government and their people signed spells out the exceptions granted to the Makah, and whale hunting is one of those exceptions.

~mark~

iVillage Member
Registered: 04-03-2003
Thu, 07-22-2004 - 11:28pm
Some further information on the issue of native tribes (though still US citizens) being exempted from some of the laws which apply to the rest of us.

http://www.bloch.umkc.edu/natpp/fedexecsummary.html

I realize it's nowhere near the same issue (taxation rather than whale hunting) but it does illustrate the reality of legal exemption from standard US law for various groups to include Native Americans. In recent decades these exemptions have been incorporated into US Code and Congressional legislation, prior to this they were enacted through treaties with the tribes in question.

Don't get me wrong, I'm not arguing the merits of these exemptions either way, merely noting that they do exist on a number of issues.

~mark~

iVillage Member
Registered: 03-23-2003
Thu, 07-22-2004 - 11:36pm

And I honestly don't see the Makah being willing to amend the treaty...so where does that leave us?


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