What’s Next – Native Religions

On April 5, 2019, the National Marine Fisheries Service (NMFS, also known as NOAA Fisheries) proposed a waiver under the Marine Mammal Protection Act and hunt regulations, bringing the Makah whaling fight into administrative territory once again. This proposal would permit the Makah to take an average of two and a half Eastern North Pacific grey whales a year for the next 10 years. This would be the first-ever waiver of the MMPA.¹

“It was an amazing feeling, it was beautiful…it isn’t that we are going out there to slaughter something – it’s that we’re going out there to take part in a practice, an Indigenous belief that we always feel, felt was essential to our identity, essential to who we are,” says Patrick DePoe, Makah Tribal Council member.²

On November 14, 2019, during proceedings around this proposal, then-democratic presidential candidate Elizabeth Warren stated her support for the Makah Tribe’s right to whale. No other candidate directly supported their struggle.³

Government scientists agree that the Eastern North Pacific grey whale population is healthy enough that the Makah exercising their treaty right would not negatively affect the species. However, biologist DJ Schubert of the Animal Welfare Institute says that the issue is “not a matter of numbers, it’s a matter of need; we don’t believe that the Makah have a need for these whales.”⁴. Grey whales have been washing up dead on beaches and are losing feeding ground in the Arctic. Scientists have not agreed upon the cause, though many cite the whale population reaching carrying capacity and the warming of the Arctic as primary potential reasons.⁵ This adds fuel to animal rights activists’ fight against the Makah by saying that the whales are dying even though the reason for the mass beachings could be an unsustainably high population of whales.

After November 2019 public hearings on the MMPA waiver, NMFS began a Draft Suppplemental Environmental Impact Statement (DSEIS) on the Unusual Mortality Event (UME) affecting Eastern North Pacific grey whales since the DEIS from 2015 predated the UME. Following this announcement, the self-designated Conservation Parties of the Animal Welfare Institute, Sea Shepard, and the Peninsula Citizens for the Protection of Whales filed a motion asking administrative law judge George J. Jordan presiding over the case to stay the proceeding and postpone his decision until the DSEIS is published. The Makah and NMFS filed responses opposing this motion.⁶The Makah Tribe wrote:

What the NGO Parties truly propose is an endless loop of process, in which waiver proceedings develop information which requires more review under the National Environmental Policy Act (NEPA), and NEPA review then triggers more waiver proceedings, ad infinitum. The
NGO Parties’ approach has no legal support and would deprive the Makah Tribe of its Treaty rights, conflict with the Marine Mammal Protection Act (MMPA) authorization of a waiver from the take moratorium, and fail to follow the detailed instruction of NMFS’s hearing regulations.
Makah Tribe’s Response to Motion to Stay Waiver Proceedings⁷

Judge Jordan denied the motion to stay due to procedural rules not requiring the completed DSEIS since the DEIS was included in briefings and because prolonging the process would prejudice the Makah Tribe. Judge Jordan issued this order on May 4, 2020, and that is the latest action in the ongoing struggle to resume whaling once again.⁸