American Indian Law Review Volume 25 | Number 2 1-1-2001 Exercising Cultural Self-Determination: The Makah Indian Tribe Goes Whaling Robert J. Miller Arizona State University School of Law Follow this and additional works at: https://digitalcommons.law.ou.edu/ailr Part of the Indian and Aboriginal Law Commons, and the Natural Resources Law Commons Recommended Citation Robert J. Miller, Exercising Cultural Self-Determination: The Makah Indian Tribe Goes Whaling, 25 Am. Indian L. Rev. 165 (2001), https://digitalcommons.law.ou.edu/ailr/vol25/iss2/9 This Article is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in American Indian Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information, please contact [email protected]. EXERCISING CULTURAL SELF-DETERMINATION: THE MAKAH INDIAN TRIBE GOES WHALING Robert J. Miller* Save a Whale, Harpoon a Makah' Table of Contents I. Introduction .........................................166 II. The Makah Whaling Culture, Religion, and Treaty ........... 170 A. Culture and Religion ............................... 171 B. Makah Whaling .................................. 175 1. Whaling Methods and Trade ....................... 176 2. Whaling Culture and Way of Life ................... 180 3. Whaling Spirituality ............................ 184 4. Ozette Village ................................ 187 C. The Makah Treaty ................................ 189 1. Introduction to American Indian Treaties .............. 190 a) Treaty Negotiations .......................... 190 b) Treaty Interpretation .......................... 192 2. Governor Stevens .............................. 193 3. The Makah Treaty Negotiation ..................... 195 D. Federal Cultural Oppression and Assimilation ............. 199 1. Cultural and Religious Oppression ................... 201 2. Attacks on Makah Families ....................... 204 *Assistant Professor, Northwestern School of Law of Lewis & Clark College; B.S., 1988, Eastern Oregon University; J.D. 1991, Northwestern School of Law of Lewis & Clark College; Judge Pro Tern, Northwest Intertribal Court System; Board Member National Indian Child Welfare Association, Inc. and Oregon Native American Business Entrepreneurial Network. Member, Eastern Shawnee Tribe of Oklahoma. The author thanks Professors Ed Brunet, Bill Funk, and Holly Doremus for reviewing drafts of this Article and Steve Wehling for his research assistance. This Article is dedicated to Hazel L. Miller. 1. The slogan was worn by whale hunt protesters and carried on placards at demonstrations in Washington. Patrick O'Callahan, Whales vs. People, NEws TRiBuNE (Tacoma, Wash.), May 26, 1999, at El0; Alex Tizon, E-mails, Phone Messages Full of Threats, Invective, SEATrLE TIMs., May 23, 1999, at B4 (stating that protesters entreated people to "Save a whale, harpoon a Makah"). This saying is similar to the "Save a Fish, Spear a Squaw" slogan used by groups fighting tribal fishing rights in the Great Lakes region in the 1970s. See Weston Kosova, Race Baiting, NEw REPUBUc, June 11, 1990, at 16; DONALD L. FIXICO, THE INVASION OF INDIAN COUNTRY IN THE TWENTIETH CENTURY: AMERICAN CAPITALISM AND TRIBAL NATURAL RESOURCES 117 (1998) (stating that bumper signs and posters in the Great Lakes protests read "Spear an Indian" and "Spear a Squaw"). Published by University of Oklahoma College of Law Digital Commons, 2001 166 AMERICAN INDIAN LAW REVIEW [Vol. 25 3. Oppression of Makah Government .................. 206 I. Cultural Determination .............................. 206 A. W hat Is Culture? . ... .. ... ... .. ... ... .. ... ... ... 207 B. Federal Indian Policies and Self-Determination ............ 209 1. Early Federal Indian Policies Affecting the Makah ....... 210 2. Modem Federal Indian Policies Affecting the Makah ..... 212 a) Allotment and Assimilation Policy ................ 212 b) Termination Policy ........................... 213 c) Self-Determination Policy ...................... 214 C. The Federal Trust Responsibility ...................... 216 D. Modem Day Federal Support for Native American Cultures ... 218 1. Tribal Cultural Practices ......................... 219 a) Indian Child Welfare Act ...................... 219 b) Native American Language Act .................. 220 c) Other Culturally Relevant Federal Actions ........... 222 d) Alaska Native Whaling ........................ 225 2. Tribal Religious Practices ........................ 230 E. Cultural Self-Determination ......................... 233 1. W haling Cultures .............................. 233 a) Community and Culture ....................... 234 b) Spirituality ................................ 237 c) Economic Importance ......................... 238 d) Nutrition and Health .......................... 240 2. Hunting Cultures or Animal Preservationists - Who Gets to Decide? . .. .. .. .. .. ... .. .. .. .. .. ... .. .. .. .. 242 IV. The Makah Reassert Their Whaling Culture ............... 247 A. The ICRW and the IWC ........................... 250 B. Gray Whales ................................... 253 C. United States/Makah Application for a Gray Whale Quota .... 255 D. Gray Whale Quota Approved ........................ 258 E. Makah Gray Whale Hunts .......................... 261 1. 1999 Hunt ................................... 262 2. 2000 Hunt ................................... 263 3. Modern Equipment ............................. 263 4. Protests .................................... 265 F. Ninth Circuit June 2000 Decision ..................... 267 V. Conclusion ....................................... 269 Postscript .......................................... 273 L Introduction American Indian tribes and Alaskan and Hawaiian natives have long suffered under the cultural oppression of European and American societies. As a result many tribal traditions, cultures, and languages have disappeared from the North American continent and Hawaiian Islands. Today, American https://digitalcommons.law.ou.edu/ailr/vol25/iss2/9 No. 2] THE MAKAH TRIBE GOES WHALING Indian tribes and native individuals are still forced to fight to preserve and to exercise their remaining traditions and cultural practices.2 These entities are fighting to overcome the influence of the dominant American society and to avoid being assimilated into the American "melting pot." This struggle will continue into the foreseeable future as these native societies and individuals try to maintain their cultures and strive to set the agenda for their own cultural practices, or in other words, as they strive to exercise cultural self- determination. The challenge to preserve a practicing tribal culture on its own terms is well exemplified by the recent Makah Indian Tribe whale hunts. In recent years, the Makah Tribe determined to renew its long dormant cultural, religious and legal rights regarding whales by reviving its traditional hunts. The Makah plan to continue this cultural tradition into the future. In this effort, the Tribe has become an excellent example of a culture which preserved its important ancient traditions within its own culture and withstood the effects of time, assimilation by American society, and outright official federal oppression, and then revived its cultural, religious, and legal rights by resuming its traditional whale hunting. In May 1999, after years of legal, cultural and religious preparations, a Makah tribal whaling crew harpooned and killed a California gray whale. The 1999 hunt was the first for the Tribe in over seventy years. The uproar of media coverage, the outrage of some animal rights groups, and the outpouring of support for the Makah was intense. The Tribe continued to hunt gray whales, albeit unsuccessfully, in the spring of 2000. A federal appeals court decision in June 2000, however, raised some question whether the Tribe would be allowed to continue whaling? The Makah situation demonstrates that the effort to exercise cultural self- determination is an ongoing struggle. Tribes and native peoples have to remain ever vigilant and always ready to defend and to exercise their cultural practices and to preserve them by teaching them to their children and grandchildren if their cultures are to survive. This Article examines Makah whaling to study how a tribe or separate people can keep a dormant cultural 2. See, e.g., Robert J. Miller, Speaking with Forked Tongues; Indian Treaties, Salmon, and the Endangered Species Act, 70 OR. L. REV. 543, 544 nn.6-7, 556-63 (1991) [hereinafter Miller, Speaking with Forked Tongues] (discussing seventy years of litigation about tribal treaty fishing rights in the Pacific Northwest, which included violent demonstrations, threats against Indian fishers, and political actions, and years of litigation, demonstrations, and violence in the Great Lakes region about tribal treaty fishing rights). 3. Metcalf v. Daley, 214 F.3d 1135 (9th Cir. 2000). On July 13, 2001, the United States issued an environmental assessment which will allow the Makah whaling to proceed on an expanded scale. Natl Oceanic & Atmospheric Ass'n, U.S. Dep't of Commerce, Marine Mammals: Environmental Assessment on Allocating Gray Whales to the Makah Tribe for the Years 2001 and 2002, 66 Fed. Reg. 37,641 (July 19, 2001); see also Postscript at infra text accompanying notes 562-63. Published by University of Oklahoma College of Law Digital Commons, 2001 AMERICAN INDIAN LAW REVIEW [Vol. 25 practice alive over time and how it