"An act of savage disobedience":
Makah Whaler Defines His Illegal Hunt

By Kate O'Connell, CSI Board

It had been more than eight years since members of the Makah tribal nation killed a gray whale in the waters off Neah Bay, Washington. Since then, whaling by the tribe has been suspended, as the hunt faced a series of legal challenges by conservation groups, including CSI. Based on a ruling by the 9th Circuit Court of Appeals in 2002, the Makah legally cannot hunt gray whales unless the tribe obtains a waiver under the Marine Mammal Protection Act (MMPA). No such waiver has been given.

Yet on the morning of September 8th, five tribal members - Wayne Johnson, Theron Parker, Andy Noel, Billy Secor and Frank Gonzales - brazenly climbed into two motorboats and proceeded to shoot and kill a gray whale in open violation of the 9th Circuit ruling. The animal died after more than ten hours, and sank to the bottom of the Juan de Fuca Strait, about a mile off the rugged seacoast at Cape Flattery.

According to witnesses who had been fishing in the area, the hunt began around 9:30 in the morning, when the motorboats began to chase the gray whale. Some 21 gun shots were heard being fired, and the Coast Guard was called in to the incident. Three vessels from the Neah Bay Coast Guard station maintained a safety perimeter around the whale until it sank, and the Guard took the five whalers into custody for questioning. Their gear, including a high-powered rifle, was confiscated and the five were eventually handed over to the Makah Tribal Police that same evening.

It is difficult to comprehend the hunt, which broke so many regulations at one shot (or more accurately, 21 shots). The five "rogue" whalers not only violated the MMPA by hunting without having received the aforementioned waiver, they also had not obtained permission to hunt from the Makah Tribal Council nor from the Makah Whaling Commission (MWC). Further, they killed the whale in the Strait of Juan de Fuca, an area that has been strictly forbidden to Makah whalers in order to protect the so-called "resident" gray whales.

All this makes a mockery of the promises that the Tribe had made in January 2005 just prior to their notification to the National Marine Fisheries Service (NMFS) that they would be seeking the waiver under the MMPA. In a detailed Q-and-A on their hunt, the Tribe stated that their whaling activities would be tightly regulated, and that they would permit hunting only in a way that would be "at least as restrictive as the plans previously approved by the National Marine Fisheries Service."

Yet somehow, the five "whalers" were able to engage in an illegal hunt in full view of the public. Andy Noel, a Makah Whaling Commissioner, was able to take the whale gun and a boat by suggesting that the five were simply going out for a practice run. The hunt did not involve using the traditional whaling canoe, and according to reports in the local press, Arnie Hunter, who stores the whaling commission's guns and harpoons, said that the traditional harpoons had not been taken out either.

Micah McCarty, a former member of the Makah Whaling Commission, put the situation best when he responded to press queries about the hunt saying that, "...we look ridiculous, like we can't manage our own people, we can't manage our own whale."

Wayne Johnson, who captained the five in attacking the gray whale, remains absolutely unrepentant for his actions. In a September 14th statement to the press, Johnson - who has since been removed from the MWC - said that he was proud of what he had done, and that he considered his to be an act of "savage disobedience" as opposed to civil disobedience, and stated in reference to the US government that "If they don't want to uphold their part of the treaty, then give me back my land."

The treaty to which Johnson referred is the 1855 Treaty of Neah Bay, under which the Makah have claimed a right to hunt whales. Since 1995, when the Makah first indicated their interest in exercising a right to whale, the proposed hunt has been controversial. The controversy has only been exacerbated by this latest hunt, and many groups, including CSI, are now calling on the US government to take the strongest possible actions against the crew, who face civil penalties of up to $20,000 each and up to a year in jail under the MMPA rules.

At press time, the National Marine Fisheries Service was still investigating the incident, and a decision as to whether to charge the men under the MMPA has not yet been finalized. As for tribal law, a decision to file criminal charges against the whaling crew is undertaken by the tribal Prosecutor, Ruth Hahn. Tribal penalties can also involve some jail time, a fine of up to $5000, and the potential loss of fishing rights. Again, by press time there had yet to be any announcements on actions taken by the Makah tribe.

This incident has caused many tribal members to question the whaling issue, even formerly staunch supporters. Ed Claplanhoo, a tribal Elder and member of a whaling family said to the Seattle Times that he did not support the September 8th hunt, nor did he agree with the crew's actions. He also said that he feared that the episode could hurt the tribe's attempts to exercise its treaty rights.

The September 8th debacle had nothing to do with culture or subsistence. It was, if Wayne Johnson's words are to be believed, an act of frustration and defiance. Laws, both tribal and Federal, were clearly broken.

The Makah first requested permission to hunt gray whales in 1995, only months after the US government had removed the species from the endangered species list. The gray whale was touted as the great success story for whale conservation, and the Makah based their petition on the fact that the grays had supposedly rebounded to near historic levels after decades of over-hunting.

Ironically, just as the illegal Makah whale hunt was being plotted, a new scientific study was being released questioning the recovery of the Pacific gray whale. Researchers E.A. Alter, E. Rynes and S. R. Palumbi published a paper in the Proceedings of the National Academy of Sciences on DNA evidence on population size and ecological impacts on gray whales. In the paper the authors state that, "gray whales may not have fully recovered from whaling because the size gap between historic and current populations is larger than was previously estimated".

The paper suggests that the historic population size for gray whales in the Pacific could be 3 to 5 times more than the current population - which has major implications for the listing of the eastern gray whale under the Endangered Species Act (ESA). If what the paper asserts is correct, the gray whale stock targeted by the Makah merits greater protection than it is currently afforded through the ESA.