AR-News: Makah whaling review denied / Court rebuffs Makah's appeal over whaling

[jim robertson]

Makah whaling review denied


By Christopher Dunagan Sun Staff


The Makah Indian Tribe will be required to write an environmental impact 
statement and obtain federal permits before tribal members can go hunting 
again for a gray whale, a court has confirmed.

The Ninth Circuit Court of Appeals Monday denied the Olympic Peninsula tribe 
a hearing before the full appeals court. It left in place a ruling by a 
three-member panel of the court in San Francisco.

The ruling said the tribe is subject to federal environmental laws, 
including the Marine Mammal Protection Act. The issue is contentious, 
because a treaty between the Makah Tribe and the federal government 
guarantees the right to hunt whales.

National Marine Fisheries Service supported the tribe's request to take as 
many as four gray whales a year for five years. Tribal whalers took one 
whale in 1999, and now the five-year period has expired.

John Arum, attorney for the tribe, said the ruling could set an unwelcome 
precedent for other tribes in the West where the Ninth Circuit Court has 
jurisdiction. If the tribe were to appeal further and lose before the U.S. 
Supreme Court, the precedent would be nationwide. He said the tribal council 
will have to determine its next move.

Tribes often contend that their treaty rights trump environmental laws, but 
the appeals court apparently does not see it that way. The court ruled that 
the Marine Mammal Protection Act applies to all people in the United States 
except for Native Alaskans with subsistence needs. If the tribe were not 
subject to review under the law, it could one day threaten populations of 
gray whales or other marine mammals, the court said.

In its original ruling two years ago, the court noted that the tribe showed 
"admirable restraint" in proposing a level of whaling that would not 
threaten the overall population, but "the intent of Congress cannot be held 
hostage to the goodwill or good judgment or good sense of the particular 
leaders empowered by the tribe at present."

Reach Christopher Dunagan at (360) 792-9207 or e-mail 
cdunagan at thesunlink.com.



http://www.thesunlink.com/redesign/2004-06-08/local/20040608615.shtml

Court rebuffs Makah's appeal over whaling
Ruling may put tribe's next hunt off for years

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."



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.

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 at seattlepi.com
http://seattlepi.nwsource.com/local/176853_makah08.html

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"The sneakiest form of literary subtlety, in a corrupt society, is to speak 
the plain truth. The critics will not understand you; the public will not 
believe you; your fellow writers will shake their heads." -- Edward Abbey