Makah Whalers

The first Territorial Governor of the then Washington Territory, Isaac I. Stevens, was not a nice man. Even his aide referred to him as "the bandy-legged tyrant" in later years, and history shows that by the time he was done he'd pretty well gotten into a hissing match with most everyone available in the Territory to get into a hissing match with from the Indians, to the Army, and back to his own Chief Justice of the Territorial Supreme Court. He kind of topped out by rolling a loaded cannon up on the lawn of the Territorial Supreme Court with the bench in the line of fire....when he was concerned the Chief Justice might rule against him. (Ref. Sons of the Profits; Doc Maynard - Bill Speidel)

One thing he did like doing was signing treaties with the local tribes, and once he got a bee in his bonnet there was no stopping him - not even the advice or unmitigated hostility of his advisors or the local Army commander of the era. This would be a later cause for regret, once the courts finally got around to honoring those treaties, beginning with the Boldt decision that revolutionized salmon harvesting (Essentially the court said "You signed the treaty, you live with the treaty. Deal."), an ongoing party since '74.

One of the more intriguing treaty cases had the Puyallup Tribe looking to repossess the cities of Tacoma and Puyallup, with a darned good chance of doing it, before the senior GOP Senator from Washington worked some heavy political mojo and managed to find a compromise leaving everyone equally unhappy.

And now, the Makah. Stevens had sort of a boilerplate treaty he shopped around to the tribes, scraping out what didn't fit and adding the occasional fillip as needed. The Makah's amendment was the treaty-protected right to hunt seals, fish, and whale with no mention made of restriction or regulation.

ARTICLE 4
The right of taking fish and of whaling or sealing at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the United States, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting and gathering roots and berries on open and unclaimed lands: Provided, however, That they shall not take shell-fish from any beds staked or cultivated by citizens.

The last hunt of the Makah was in 1920. Until 1998 when tribe members re-read the treaty in light of the Boldt decision and subsequent rulings, and realized that they indeed had an enforceable right to whale that superceded federal and state regulation, and arguably, subsequent treaties to which the Makah nation had not been a party.

Whether because the Makah are essentially kindly folk, or for other reasons, for that first hunt they jumped through the various federal hoops and played nicely with the various animal rights and and environmental types. They didn't pull their trump card all the way out and waltz all the way to the Supremes back in DC.

The Makah were "allowed" one hunt. Subsequently the 9th Circuit held the Makah must be held to a more stringent standard before being allowed to whale in 2004, and the tribal treaty right to whale has been in limbo since, with no new permits issued.

In 2007, several Makah men, without Federal or Tribal authorization set forth upon a whale hunt, found their quarry, and took it...before the authorities swept in and allowed the whale to founder, going to a watery grave.

Read the latest here.

This has the potential to be another Boldt sort of case, pitting treaty rights against environmental law. The Justice Department is eager to deal because if the case goes forward, while it may take years and dollars to resolve, if it ends up before the Supreme Court of the United Sates...there's a more than fair chance that the defense position that the Treaty allows no regulation of Makah Whaling by the government of the United States would open a Pandora's box, and incidentally cut a loophole you could drive a truck through in wildlife management laws.

The Tribal Council is eager to deal because if the whaling/seal hunting/fishing rights are held to be individual to each member of the tribe, and not dependent on or regulated by decisions of the Tribal Council...a whole second set of doors will be blown right open.

And to think, we can thank a tiny bandy legged tyrant...