Description of the USA Aboriginal Subsistence Hunt:

Introduction

The Makah Indian Tribe’s cultural and subsistence need includes an average of four gray whales per year with a maximum of five gray whales in any one year.  This level, which is based on one whale for each traditional Makah village and a calculation of the per capita amount of meat, oil and blubber that five whales would provide for the Makah community, has been approved by the IWC in 1997, 2002, 2007, 2012, and 2018.  It is essential to note, however, that the Tribe’s hunt is subject to additional domestic legal requirements and limitations imposed by the United States government.

The Makah Tribe occupies a reservation located on the remote, northwestern tip of Washington State where the Strait of Juan de Fuca meets the Pacific Ocean. Historically, Makahs lived in five permanent villages – Neah Bay (di·ya), Biheda (bi?id?a), Tsoo-yess (c׳u.yas), Waatch (wa?ač׳), and Ozette (?use∙?iɫ),  – with several seasonal or temporary locations situated to access a wide variety of traditional foods. Since time immemorial, the Makah people have depended on the reliable and abundant resources from the ocean for their subsistence, culture and economy.  Hunting whales, seals and other sea mammals and catching halibut, salmon and other marine fish have always been integral and essential to Makah life. The centrality of marine resources led the Makah Tribe to insist on retaining a perpetual right to harvest whales, seals and fish when it signed a treaty with the United States in 1855.  During the negotiation of the Treaty of Neah Bay, a tribal leader declared, “I want the sea. That is my country.” This statement is a testament to the inherent connection of Makahs to the ocean and reliance on its bounty for their survival.  The treaty is unique in another way – of the hundreds of treaties the United States made with tribes, it is the only one that expressly secures the right to hunt whales.

Makah Tribe’s Marine Usual and Accustomed (U&A) Areas in United States Waters

The Makah Indian Reservation is approximately 47 square miles and is more than a four-hour drive from Seattle and an hour from the nearest stoplight. Makah culture and traditions, in conjunction with the remoteness of the reservation, make the Tribe especially reliant on subsistence resources, with 99% of households relying on fishing and hunting for a portion of their diet. The Tribe has 3,349 enrolled members, with 1,471 members living in the reservation community of Neah Bay. Life on the reservation presents many challenges for Makahs, including high rates of poverty and unemployment due to limited economic opportunities and the seasonality of fisheries and tourism, alcohol and drug abuse, and crime.  Although the Tribe’s traditional whaling, sealing and fishing areas in the Pacific Ocean and Strait of Juan de Fuca (see map above) are part of a highly productive ecosystem that has sustained the Makah people for thousands of years, changing ocean conditions, freshwater habitat degradation, and variations in international and domestic management requirements have affected the reliability of and access to the ocean resources on which the reservation community depends. 

Makahs have hunted whales for subsistence purposes for at least 1,500 years.  The historic, ethnographic and archaeological record conclusively demonstrates that whale products formed a central – and likely the dominant – component of Makahs’ traditional diet for over two thousand years.  Makah whale hunting was disrupted in the late 19th and early 20th centuries by the devastating effects of European diseases, forced assimilation, and the near extirpation of gray, humpback and other whales by non-Native commercial whalers.  The Tribe resumed exercising its treaty right to hunt gray whales in the late 1990s after the Eastern North Pacific stock had recovered from commercial exploitation and landed its first whale in seventy years in 1999.  Consistent with international and domestic law, the Tribe’s hunt is for subsistence and cultural purposes only and prohibits the commercial sale of edible whale products. 

Whaling remains essential to Makah culture, identity, ceremonies and subsistence and is, simply put, part of who the Makah are.  Gray whales are a predominant component of the ocean resources that have always sustained the Tribe and cannot be replaced by other resources.  In addition to providing for the Tribe’s subsistence needs, whale hunting and the associated activities of physically, mentally, and spiritually preparing for a hunt and processing, preparing, and eating whale products had – and continue to have – important ceremonial and social functions in the Makah community.  The central importance of whaling to Makahs over time is illustrated and confirmed by the pervasive presence of whaling in Makah life:  songs and dances specific to whaling; basketry, carving and other artwork featuring whale images; deeply spiritual ceremonies; and the Tribe’s historical and contemporary whaling practices reflected in displays at the Makah Cultural and Research Center.  The cultural and social aspects of whaling benefit households and extended families and can provide the reliable community structure and cohesiveness necessary to overcome societal challenges present on the reservation.  The Makah people continue to express strong support for the Tribe’s pursuit of whaling in the 21st century, and the vast majority of Makahs want whale meat, oil, and blubber as well as bone and baleen in their households on a regular basis.

Information on the History, Culture, and Nutritional Significance of the Hunts 

The Makah people are the southernmost of the Nuu-chah-nulth tribes and are the only member of the Wakashan-speaking people within the United States. The traditional name for the Makah Tribe is qwidiččaʔa·tx̌ which means “People who live by the Rocks and Sea Gulls.” The name "Makah" was given by neighboring tribes and means "generous with food."

The relationship between the culture and subsistence of Makah people and whales is one of great antiquity.  For at least 1,500 years, whale hunting and the associated activities of processing, preparing and eating whale products have had important ceremonial and social functions in the Makah community, in addition to their more obvious subsistence benefits.  The Makah whale hunt established a social order for Makah society, governing wealth, status, marriage preferences and ceremonial displays.  Makah whalers, or headmen, were at the top of the social order because they could offer prestige, protection and resources to kin and non-kin members of their longhouses.  Their prominent role in Makah society was fortified by the rigorous physical and spiritual preparations necessary to successfully hunt a whale.  The community-at-large also contributed to the success of the hunt by processing, preserving and preparing whale products for use by the Tribe.

On January 31, 1855 the Makah Tribe entered into the Treaty of Neah Bay with the United States. In the Treaty, which is the “supreme law of the land” under the U.S. Constitution, the Makah Tribe reserved its inherent sovereign rights to natural resources and cultural practices in exchange for ceding 469 square miles (1,215 km²) of Makah territory to the United States. The Treaty reaffirmed Makahs’ longstanding cultural tradition of resource ownership and of stewardship of the ocean by reserving, in Article IV, “the right of taking fish and of whaling or sealing at usual and accustomed grounds and stations.” 

The Makah Tribe continued whaling, and whales continued to provide a substantial portion of Makah subsistence after the Treaty and into the early 20th century when non-Native commercial whaling nearly extirpated gray whales. The depletion of gray whales necessitated a harmful and disruptive hiatus in Makah whale hunts from the 1920s to the 1990s.  When the Eastern North Pacific (ENP) gray whale population had recovered sufficiently to be removed from the U.S. Endangered Species Act list, the Tribe immediately sought to resume whaling and worked with the United States government to obtain IWC approval of a gray whale catch limit based on the Tribe’s cultural and subsistence need.  Through joint requests submitted by the United States (on behalf of the Tribe) and the Russian Federation (on behalf of the Chukotka Natives), the IWC has approved five aboriginal subsistence whaling (ASW) catch limits covering the period 1998-2025 and reflecting the cultural and subsistence needs of both Makahs and Chukotkans to hunt gray whales.

Following IWC approval of the Tribe’s first catch limit in 1997 (for the period 1998-2002), the Tribe conducted its first successful hunt in seventy years when a Makah whaling crew landed a gray whale in Neah Bay on May 17, 1999.  The Makah community joined in celebration of this event and welcomed the use of whale products back into their homes, communal ceremonies, and daily lives. More detail on the history of Makah whaling from pre-contact times through the 1999 hunt can be found in the 2018 Needs Statement, Renker, A.M. 2018, Whale Hunting and the Makah Tribe: A Needs Statement, IWC/67/ASW/03 (p. 16 (History), p. 36 (Pre-contact), and p. 48 (1998-2002 Quota Period)).

The Tribe’s resumption of hunting whales was short-lived due to legal challenges from animal welfare NGOs and complex administrative processes under United States law.  Soon after the 1999 hunt and notwithstanding the express “right of … whaling” in the Makah Treaty, a United States federal court ruled that the government must issue a waiver from the moratorium on taking marine mammals in the Marine Mammal Protection Act (MMPA) and, before issuing such a waiver, must complete a comprehensive environmental review of the hunt.  The domestic legal processes for issuance of a waiver and completion of the required environmental review are complex, impose exacting standards for the protection of marine mammals and other resources, and entail extensive scientific review and opportunities for public input and participation.  The Tribe has been working diligently with NOAA to comply with these requirements since 2005, but, as a result of the protracted bureaucratic process it has been unable to undertake a hunt for more than 20 years.

Makah elders and professional anthropologists trace the decline of the social and physical health of the Tribe to the elimination of the whale hunt and its associated ceremonial and social rigors. The revitalization of the hunt in the 1990s provided Makahs with an additional mechanism to connect traditional tribal values about health and spirituality to modern life.  This was particularly important after generations of Makahs had been subjected to government policies – commonly implemented through boarding schools – designed to separate tribal members from their community, language, culture, traditional foods, and ceremonial and subsistence practices.  The restored hunt helped to reestablish and strengthen the connection between Makahs and their traditional foods, ceremonies, and way of life and assisted young and old in dealing with the challenges of modern life. 

Whaling remains an integral part of Makah life on the reservation even though the last hunt occurred in 2000, nearly twenty-five years ago.  Whale images are everywhere on the reservation. They are the dominant icon in Neah Bay and adorn T-shirts, jackets, jewelry, and signs. A good deal of the public art in the village, including images inside and outside of the public school and tribal buildings, depicts whales. People adorn their homes with photos of their whaling ancestors and whaling canoes full of gear.

This connection between Makah people and the Tribe’s whaling traditions is an enduring one. Parents, grandparents, and extended family sing Makah songs to infants, tell family histories and stories, and bring children to potlatches and other Native gatherings. If children do not learn any Makah language from their family members, instruction in school begins in their preschool years and continues through high school. Lessons on Makah language and culture in the public school include learning the terms for whales and whaling equipment. Children also learn about the Tribe’s whaling practices, personalities involved in historic whaling activities, and in middle school and high school learn about the treaty right to hunt whales as well as the IWC and domestic legal processes. Field trips to the Makah Cultural and Research Center are common, where the Tribe’s historical and contemporary whaling pursuits are on display for Makahs and the many other visitors to this facility.  More information on the cultural and ceremonial aspects of Makah whaling is found in the 2018 Needs Statement, IWC/67/ASW/03 (p. 15) 

Makahs have drawn their subsistence from the ocean since time immemorial.  Gray whales are a predominant component of the ocean resources that have always sustained the Tribe and cannot be replaced by other resources.  This was true for thousands of years and, if anything, is even more true today.  For example, halibut, salmon and other ocean fisheries fluctuate in abundance and are subject to national and international management restrictions and the demands of other harvesters.  The increasing variability, and in some cases long-term declines, in catch limits diminishes the reliability of these and other marine resources on which Makahs have always depended.  Other environmental pressures, such as changing ocean conditions (ocean acidification, hypoxia, and temperature increases), harmful algal blooms, pollution, increasing vessel traffic (and the associated increase in noise and risk of a catastrophic oil spill), and other factors beyond the control of the Tribe exert additional pressure on the ability of the ocean to meet the Tribe’s subsistence, economic and cultural needs.  And, for many in a community suffering from high unemployment rates, alternative sources of subsistence remain limited.  Gray whales are an abundant and reliable resource that have provided substantial nutritional benefits for millennia and that cannot now be replaced by other traditional marine resources.

Regular availability of whale products would provide significant nutritional benefits to Makahs.  For at least 2,000 years, Makahs have relied on whales to provide the cornerstone of their diet, with whale meat, blubber and oil constituting a significant percentage of their food in pre-contact and historic times. Whale oil in particular was extensively utilized with dried fish, other traditional foods, and, after contact with Euro-Americans, for dressing and dip on potatoes, bread and processed foods.  As James Swan observed from his time with the Tribe in the mid-1800s, “all their other food is usually greased with a plentiful supply of whale oil.”

Whale products can help Makahs, many of whom have low incomes and struggle to provide food for their families, ensure that more of their fundamental nutritional needs are met with a traditional, local food source.  A combination of whale meat, blubber and oil will assist Makah families (including their non-Makah household members) in meeting caloric and nutrient requirements with a healthier food source that costs them less than the western foods they would replace.  This nutritional benefit also has profound implications for Makah identity and culture, as it allows Makahs to connect with their ancestors’ food traditions and fulfill the guarantee secured in the Treaty of Neah Bay of continued utilization of whales.

Whale products also provide a natural means of combating many of the health problems linked to diet that have plagued Makahs and other Native American populations since the American government introduced processed western foods such as refined sugar and flour, beef, and lard to reservations in the historic period and interrupted their traditional pattern of food use heavy in fish and marine mammal oils.  Research has indicated a genetic link between Native people and their traditional diet, and this may be a contributing factor to many of the diet-related health issues facing Makahs in the 21st century. Reintroduction of whale products, particularly whale oil, presents an opportunity to improve health results because marine mammal oil is high in n-3 polyunsaturated fatty acids (also called omega-3 fatty acids), which have been demonstrated to have beneficial effects on cardiovascular and metabolic health.  More information on the nutritional benefits of Makah whaling is in the 2018 Needs Statement, IWC/67/ASW/03 (p. 81). 

When they are available, Makahs utilize whale products such as meat, blubber, and oil rendered from blubber for food and non-edible parts like bone for carving and other artwork. Modern Makahs have rediscovered their ancestral appetite for whale products, expressing a strong desire for more access to whale products in a 2018 survey of Makah Reservation households:  80.4% of surveyed households would like whale oil on a regular basis; 85.7% would like whale meat on a regular basis; and 88.1% would like access to whale bone on a regular basis.  Most Makahs also indicated they wanted more information on preparing meat, blubber, and oil and working with whale bone.  The most recent household whaling survey, conducted in 2018, also demonstrated that Makahs overwhelmingly view whaling as having positive effects on culture and language, sense of community, pride in being Makah, and interactions with other Native people.  Therefore, it is unsurprising that, overall, nearly 96% of Makahs surveyed in 2018 support the Tribe’s continuing efforts to hunt whales and secure the subsistence and cultural benefits that would accompany more frequent gray whale hunts.  More information on the 2018 household whaling survey (and previous surveys) is in the 2018 Needs Statement, IWC/67/ASW/03 (p. 74). 

Despite not being able to hunt for more than two decades, the Makah Tribe has also remained committed to responsible management of and scientific research on gray whales and other marine mammals in its traditional ocean territory.  In 2003 the Tribe established a Marine Mammal Program (MMP) with a goal of developing scientific expertise and obtaining the scientific information necessary to conduct Makah whale hunts in a sustainable manner.  The MMP conducts research on most cetaceans and pinnipeds in the Tribe’s traditional hunting area, manages a stranding network for the area, is a responder for large whale entanglements as a member of the NOAA West Coast Region Large Whale Disentanglement Network and assists the Makah Fisheries Management Department with studies of non-marine mammal species.  This work has resulted in more than 20 peer-reviewed publications and numerous unpublished papers presented to the IWC‘s Scientific Committee or NOAA.  The MMP’s marine mammal biologists have actively engaged in intersessional, plenary and sub-committee meetings of the IWC Scientific Committee since 2004.  More detail on the research and other activities of the MMP can be found in the 2018 Needs Statement, IWC/67/ASW/03 (p. 54).  A list of research papers and publications can be found here.

Information on Recent Catches 

The IWC Table of Catches is updated annually and published here. 

In the mid-1990s, after the recovery of the ENP gray whale population, the Makah Tribe immediately sought to resume whaling and worked with the United States to obtain IWC approval of a gray whale catch limit.  Consistent with the International Convention for the Regulation of Whaling and the United States Whaling Convention Act, the Tribe’s hunt is for subsistence and cultural purposes only and prohibits the commercial sale of edible whale products.  Following IWC approval in 1997 of a five-year gray whale catch limit, the Tribe conducted its first successful hunt in seventy years. 

On May 17, 1999, the Tribe celebrated a pivotal moment in its long history.  At 6:54 am, the Creator allowed a Makah whaling crew to realize a collective dream that Makahs had stored in their minds and hearts for seventy years: they brought a whale home to the Makah people.  This event riveted the Makah community and energized Makah Tribal members who believed in, and worked toward, the restoration of this significant cultural and subsistence practice protected by their ancestors in the Treaty with the United States.  Five days later, the Makah Tribe paid tribute to the whale which provided so much to the community and celebrated a new chapter in its history.  Thousands of people attended a parade through the village and a feast in the high school gymnasium afterward.  In addition to the local Makahs who attended these events, many Makahs made the long journey home to participate.

Unfortunately, the revival of the Makah whale hunt was put on hold shortly after the successful hunt.  Despite IWC authorization to hunt gray whales since 1998, the Tribe has not been able to exercise the right under its Treaty to hunt whales for most of those years, including the entire period since 2002 because of complex – and highly protective – domestic legal requirements.  While important progress has been made between 2019 and 2024, including approval of the long-sought waiver, the Tribe will not be able to resume its hunt until it satisfies all the applicable requirements.  More information on the legal impediments to the Tribe’s hunt from 2002 to the present is provided below and in the 2018 Needs Statement, IWC/67/ASW/03 (p. 62). 

Under current United States law, the Secretary of Commerce, acting through the National Oceanic and Atmospheric Administration (NOAA), must authorize the Makah hunt before it may take place.  In a decision first issued in 2002, and finalized in 2004, a United States appellate court held that NOAA must prepare an Environmental Impact Statement (EIS), the highest level of environmental review under American law, before authorizing the hunt. In addition, the court held that NOAA must waive the take prohibition in the MMPA and issue a permit to the Tribe before a Makah harvest of gray whales can take place.  The MMPA imposes exacting standards for the protection of marine mammals and requires thorough scientific review and analysis before NOAA may issue a waiver.  Moreover, the process requires an on-the-record hearing before an administrative law judge, and allows opponents of Makah whaling to participate, present witness testimony, and submit other evidence that must be considered by the administrative law judge in issuing a recommendation to NOAA on the waiver.

Although the Makah Tribe strongly disagreed with this court decision, the Tribe stopped hunting whales in order to comply with it. Nearly 20 years ago, the Tribe began the administrative process to obtain an MMPA waiver by submitting an Application for a Waiver of the MMPA Take Moratorium to Exercise Gray Whale Hunting Rights Secured in the Treaty of Neah Bay to NOAA in February 2005. As required by the court, NOAA began preparing an EIS after it received the waiver application from the Tribe. The preparation of an EIS is an involved process, often taking multiple years to complete.  However, as a result of several scientific discoveries relevant to gray whales in the Tribe’s hunting area, the EIS process for the Tribe’s hunt has been extraordinarily lengthy, resulting in two draft EISs, the most recent of which was published in March 2015. Over 1,200 pages in length, the 2015 draft EIS evaluates potential impacts of the Makah whale hunt on the environment (including impacts to local populations of gray whales, the ENP stock as a whole, and whales migrating between the western and eastern Pacific Ocean).  The draft EIS evaluated not only the hunt proposed by the Tribe in its 2005 waiver application, but several alternative hunt plans developed by NOAA, in part as a response to public comment. Numerous comments were submitted on the 2015 draft EIS by whaling opponents and others.

The administrative process that must reach completion before Makah can hunt again is ongoing, but important steps have been taken over the past five years toward that objective.  In 2019, NOAA formally proposed to grant the waiver and issue federal regulations that would govern key aspects of the hunt, including season and area restrictions, the number of whales that may be approached and struck, and additional procedures for obtaining a hunt permit from NOAA.  NOAA’s proposed waiver and regulations, which are described in greater detail here and here, were the subject of a six-day on-the-record hearing before an administrative law judge in November 2019.  NOAA, the Tribe, and the Marine Mammal Commission, an independent agency created by the MMPA, participated, as did three NGO opponents of the hunt – Animal Welfare Institute, Sea Shepherd, and Peninsula Citizens for the Protections of Whales.  Testimony at the hearing and hundreds of pages of written testimony filed before the hearing are available at the hearing docket website here.  Witnesses for Makah included four Tribal members who testified about their connection with the 1999 hunt and the impact it had on their lives and the Makah community as a whole.  The tribal member testimony is available here:  G. Arnold; P. DeBari; M. Pascua; and D. Greene.  In addition, the Tribe offered expert testimony about Makah whaling history and culture with an emphasis on Makahs as ocean-going people dependent on marine resources and how that identity and the relationship with whales shaped a constellation of practices that collectively constitute Makah whaling. Finally, the Tribe’s marine mammal biologist and two other tribal expert witnesses testified about many scientific issues underlying the proposed waiver.

The parties submitted post-hearing briefs in March 2020, just as the global pandemic was shutting down nearly every aspect of society.  Eighteen months later, the administrative law judge issued a 156-page decision which held that the core aspects of the proposed waiver and regulations were consistent with the requirements of the MMPA and recommended NOAA approve the waiver and issue the regulations with limited modifications.  Notwithstanding this significant development, the proceedings continued into 2024.  In June 2022, nine months after the recommended decision was issued, NOAA published a supplemental draft EIS.  This environmental review document supplemented the 2015 draft EIS and focused on the gray whale unusual mortality event (UME), which had been declared in 2019 when significantly elevated numbers of gray whale strandings occurred along the Pacific Coast of North America. The 2022 supplemental draft EIS, which is available here, also analyzed a preferred hunt alternative consisting of the parameters that were proposed by NOAA in 2019 and evaluated by the administrative law judge.  As with the 2015 draft EIS, NOAA accepted public comment on its supplemental environmental review.  Finally, in November 2023, NOAA published a final EIS, which incorporated the 2015 draft EIS, the 2022 supplemental draft EIS, and NOAA’s response to public comments on all of these documents, into a single, 2,364-page analysis of the proposed Makah hunt and its potential impacts on gray whales and a wide range of other natural resources and the environment. 

The culmination of nearly 20 years of the Tribe waiting for a decision on the waiver occurred on June 18, 2024, when NOAA published a final decision approving the waiver and adopting final regulations governing the hunt.  The final decision, regulations, and supporting information can be found here and are discussed in the section below.   While the waiver is a milestone in the Tribe’s efforts to resume whaling, more steps in the process (including obtaining a hunt permit from NOAA required by the MMPA), more waiting by the Tribe, and more legal challenges lie ahead before the next Makah whale hunt can take place. 

Based on the Tribe’s experience, it is highly likely that NOAA’s decision to grant the waiver and any future decisions that would authorize a Makah hunt will be challenged in court by the small group of animal welfare NGOs that have sought for decades to prevent the Tribe from hunting a limited number of gray whales for ceremonial and subsistence purposes.  All of the Tribe’s efforts to increase tolerance and understanding of its whale hunt, a hunt which is a spiritual manifestation of the connection between Makahs and their Creator and a realization of the right their ancestors secured through the Treaty of Neah Bay, have not prevented continued opposition to Makah whaling.  This opposition to the hunt increasingly reflects a narrow, ideological interest, as many mainstream environmental NGOs have expressed support for the Tribe’s proposed hunt and exercise of its treaty-protected right to hunt whales.   Thus, despite the substantial adverse effects on the Tribe from the hiatus in whaling caused by the depletion of gray whales by non-Native whalers, despite the fact that the Tribe delayed exercising its Treaty right until the ENP gray whale population returned to healthy numbers, despite the Tribe’s efforts to limit the scope of its hunt and comply with all IWC humane kill requirements, despite the Tribe’s diligent efforts to comply with the extraordinarily complex and time-consuming domestic management process, despite the Tribe’s compliance with additional restrictions resulting from that process, and despite the Tribe’s contributions to the body of scientific knowledge about gray whales, opponents of Makah whaling will likely ensure that the recently issued waiver and any subsequent decisions by NOAA to authorize a Makah hunt – no matter how limited – will be reviewed by United States federal courts.

Information on Hunting Methods 

The Tribe’s hunt includes measures that will ensure that the hunt is conducted in the most humane, safe, and efficient manner practicable while also accomplishing the Tribe’s objective of providing opportunities for a traditional ceremonial and subsistence hunt. To achieve the blending of traditional and modern methods, the whaling team will approach the whale in a large cedar canoe, and all whales will be harpooned with a toggle-point harpoon with floats attached before being dispatched with a high-powered rifle targeting the central nervous system (brain and upper spinal cord). The rifleman will approach the harpooned whale in a motorized chase boat and will be accompanied by a safety officer applying strict protocols on shooting to ensure safety of the public and efficiency of dispatch.  One or more motorized support boats will secure and tow the whale to shore, where it will be butchered, processed and distributed to members of the whaling team and the Makah community.  The activities of the whaling team in the canoe and chase boats will be overseen by a whaling captain.  More information on the Tribe’s hunting method is in IWC/58/WKM&AWI 15, which describes the Tribe’s traditional hunting methods and development of the method utilized in the 1999 hunt.  Additional information on the Tribe’s hunting methods can be found in the written testimony (5/17/2019 p. 13) submitted by the Tribe’s marine mammal biologist in the administrative law judge hearing.

As explained above, while domestic legal process has not yet resulted in full authorization of the Tribe’s hunt, NOAA’s 2024 waiver decision and final regulations provide substantial information about the limits placed on a Makah hunt.  The limits that the waiver and regulations establish for the hunt supersede the Tribe’s proposal when it applied for a waiver in 2005.  However, it is important to note that while the 2005 proposal was developed to ensure a safe, humane and efficient hunt that would conserve gray whale populations in the Tribe’s hunting area and was determined by the Scientific Committee to satisfy the IWC’s conservation objectives in the 2010-2013 implementation review, the waiver places additional limits on the Tribe’s hunt which restrict the Tribe’s ability to satisfy its ceremonial and subsistence need.

NOAA’s waiver imposes more constraints on the Makah hunt than the Tribe’s 2005 proposal.  In particular, the waiver further restricts the number of strikes and landed whales to limit the hunt’s potential impact on two groups of gray whales: (1) Pacific Coast Feeding Group (PCFG) whales; and (2) Western North Pacific (WNP) gray whales that migrate through the Tribe’s hunting area but which primarily feed at Sakhalin Island, Russia, in the western Pacific Ocean.  The new protections for these groups are centered on two different hunting seasons.  The hunt would alternate between years in which hunting is limited to the migratory season (when impacts on the PCFG would be minimized but WNP whales could be present) and years when hunting would only occur during the feeding season (when PCFG whales would be present but WNP whales would not). In addition, the feeding season (summer/fall) hunt would have lower strike and landing limits than the migratory season (winter/spring) hunt. Critically, the waiver is limited to ten years (rather than the unlimited duration proposed by the Tribe in 2005), so the Tribe would need to seek additional authorization to continue hunting when the current waiver expires. 

To further protect PCFG whales, under the waiver the hunt could only occur in years in which the PCFG was above minimum abundance thresholds, only two whales could be struck and only one whale could be landed in a hunt during the feeding season (July 1 – October 30), only three whales could be struck in a hunt during the migratory season (December 1 – May 31), and fixed limits for the total number of PCFG whales and PCFG females that could be killed over a ten-year period would be imposed. 

The alternating season hunt and three-strike limit during the migratory season would also protect any whales migrating to or from the western North Pacific. Those whales would not be vulnerable to the hunt in years in which the hunt was limited to the feeding season (when they are not present in the Tribe’s hunt area), and the three-strike limit during the migratory season would further reduce the already very low chance that they would be struck during a migratory season hunt.  In addition, if a western whale were struck during a migratory season hunt, hunting would cease until all risk to western whales could be eliminated. 

The hunt limits in the waiver are more conservative than the Tribe’s 2005 waiver application in order to reduce the already low probability of striking western whales and to further reduce the limited impacts to PCFG whales, while still providing annual (albeit very limited) hunting opportunities for the Tribe.  In advance of the catch limit extension at IWC67, NOAA submitted the same limits included in the waiver to the Rangewide Workshop and Scientific Committee in 2018 as a proposed hunt management plan.  In providing favorable management advice in 2018 on the ASW hunt of gray whales (Section 8.2.2 of the 2018 Scientific Committee Report, IWC/67/Rep01(2018)), the Scientific Committee also reviewed the proposed Makah management plan and concluded that “the performance of the Management Plan was adequate to meet the Commission’s conservation objectives for the Pacific Coast Feeding Group, Western Feeding Group and Northern Feeding Group gray whales.” (Section 7.1.3.2 of the 2018 Scientific Committee Report, IWC/67/Rep01(2018)).  Thus, the same limits contained in the approved waiver were found to satisfy the IWC’s conservation objectives for all affected populations of gray whales (eastern, western and PCFG).  This conclusion was reaffirmed by the Scientific Committee in 2024.

Most recent IWC Scientific Committee Advice on the Eastern North Pacific (ENP) Gray Whale Population 

The general approach to the provision of scientific advice to the IWC for all ASW hunts is through the use of a Strike Limit Algorithm (SLA).

Information on International and National Regulations

he 1855 Treaty of Neah Bay between the Makah Tribe and the United States expressly secures the Tribe’s right of whaling in addition to the right to take fish, engage in sealing, and hunt land animals. Under Article 6 of the U.S. Constitution, treaties between the U.S. Government and sovereign nations are the “supreme law of the land.” 

The IWC is charged with the conservation of whales and the management of whaling under the 1946 International Convention for the Regulation of Whaling (ICRW). The IWC establishes catch limits for ASW hunts in paragraph 13 of the Schedule pursuant to advice of the Scientific Committee.  From 1998 through the present, the IWC has approved five separate multi-year ASW catch limits for hunting gray whales based on joint requests from the United States (Makah Tribe) and Russian Federation (Chukotka Natives).  The catch limits for the periods 1998-2002, 2003-2007, 2008-2012, and 2013-2018 authorized the taking of an average of 124 gray whales per year, with a maximum of 140 in any one year.  In 2018, the IWC approved a gray whale catch limit for 2019-2025 which authorized the landing of an average of 140 gray whales per year, with a maximum of 140 strikes per year subject to a carryforward provision (paragraph 13(b)(2) of the Schedule). The catch limit is typically split and monitored through a bilateral arrangement between the United States and the Russian Federation.

The United States has implemented the ICRW through the Whaling Convention Act (WCA), 16 U.S.C. § 916 et seq. Pursuant to the WCA, NOAA has adopted aboriginal subsistence whaling regulations which are set out at 50 C.F.R. Part 230. The regulations permit whaling captains designated by a Native American whaling organization which has been recognized by NOAA to engage in subsistence whaling in accordance with IWC catch limits and regulations.  

Domestically, whales are protected and managed by NOAA under the Marine Mammal Protection Act (MMPA) and WCA.  The MMPA prohibits the take (harassment, hunting, capturing, collecting, or killing) of marine mammals in U.S. waters, but authorizes NOAA to grant waivers and permits authorizing take (e.g., incidental take for commercial fisheries, scientific research, capture for public display, Department of Defense operations, etc.).  The MMPA exempts subsistence hunting by Alaska Natives from the take moratorium.  See 16 U.S.C. § 1371(b).  The Marine Mammal Commission provides science-based oversight of the domestic and international policies and actions affecting marine mammals and their ecosystems. Several whale species are listed as threatened or endangered under the U.S. Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq., including the Western North Pacific stock of gray whales.  Potential adverse effects of the Makah hunt on ESA-listed species would require additional review by NOAA under the ESA. As discussed above, the MMPA waiver is also subject to the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., which requires federal agencies to assess the environmental impact of their proposed actions, such as the waiver and any MMPA permit issued by NOAA for the Makah hunt, and to inform the public about such impacts prior to making a final decision. The scope of NEPA also extends beyond marine mammals and considers impacts on other species and resources, including human health, public safety, the local economy, and cultural resources. 

More information on the Tribe’s whaling right under the Treaty of Neah Bay and the regulation of whaling under international and United States law is available in the Tribe’s 2005 waiver application (pp. 6-8 and 13-20) and the 2023 Final EIS prepared by NOAA (pp. 1-7 to 1-29).  In addition, much of the regulatory history following the 2005 waiver application is available at NOAA’s website on Makah whaling. 

Despite IWC authorization to hunt gray whales since 1998, the Makah Tribe has not been able to exercise its treaty right to hunt whales for most of those years, including the entire period from 2002 to the present because of the complex – and highly protective – domestic legal requirements described above.   Even if the Commission extends the status quo gray whale catch limit beyond 2025 at IWC69, the Tribe must still satisfy all these domestic requirements before resuming its hunt.  And, it is likely that, even if the Tribe receives full domestic authorization to hunt gray whales, there will be a legal challenge filed to stop the hunt in United States court.  For additional details regarding these matters, see the above section entitled Information on Recent Catches.