Whales, Native Alaskans and Environmentalists

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By Professor Victoria Sutton

July 21, 2024

Guest Opinion. Alaska Natives have a unique status in Federal Indian Law, in part, due to their entry into the Union in a later and much different policy period.

The U.S. Army going to war with Tribes and then signing a one-sided peace treaty that involves giving up a lot of land, has been replaced with the more deceptively civil sounding “settlement act.” As I was once told, when you see the word “settlement” in a statute concerning Native America, that means that Native Americans just got cheated (they used a different word, but I will substitute for this forum). So the Alaska Natives got a “settlement” act.

The Alaska Native Claims Settlement Act (ANCSA) in 1971 recognized 43.7 million acres of land was aboriginal land and extinguished Alaskan Native land claims for a payment of $962.5 million.

ANCSA also structured the Alaska Native population into 13 corporations based on geographic regions with more than 200 village corporations. These corporations administer federal and state funds for providing health, housing, and other services to Alaska Natives. An “Alaska Native” is defined in the Code of Federal Regulations as:

“Native” means a citizen of the United States who is a person of one-fourth degree or more Alaska Indian. . . Eskimo, or Aleut blood, or combination thereof. The term includes any Native as so defined either or both of whose adoptive parents are not Natives. It also includes, in the absence of proof of a minimum blood quantum, any citizen of the United States who is regarded as an Alaska Native by the Native village or Native group of which he claims to be a member and whose father or mother is (or, if deceased, was) regarded as Native by any village or group. Any decision of the Secretary regarding eligibility for enrollment shall be final;”

A couple of differences with regard to American Indians in the continental U.S., there is a criteria of simply “regarded as an Alaska Native” by the “Native village” (25 or more) or “Native group” (less than 25) of which they belong. This can be done without a minimum blood quantum or other documented list. Second, the inherent sovereignty to determine a Tribe’s own members or citizens seems displaced by the final decision of the Secretary (Department of the Interior).

A lot of misunderstanding about the status of Alaska Natives has led to a legal challenge by American Indian tribes seeking to deny COVID-19 resources to Alaska Natives because they are “corporations,'' as opposed to the “Tribes or Nations” of American Indians in the continental U.S. The lawsuit claimed because they were not officially “federally recognized” they did not qualify for the CARES Act of 2020 funding. Fortunately, the U.S. Supreme Court recognized the wordplay and opined in Yellen v. Confederated Tribes of the Chehalis Reservation that the Alaska corporations were equivalent to federally recognized.

But much like American Indian Nations in the continental U.S., there are traditions that clash with environmentalists that end up in national and even international conflict for decades. Just a few weeks ago, I wrote about the eagle feather controversy in high school graduation ceremonies which also took a long view of the conflict between Native America and environmentalists over the eagle’s protection.

Environmentalists and Native Alaskans

There are many clashes between environmentalists and Native Alaskans, even the issue of drilling for oil in the pristine Prudhoe Bay. However, the environmentalists and Native Alaskans have mostly aligned together against drilling in the truly pristine Arctic Wildlife National Refuge. It is complicated when heat and food are at stake with protecting one of the wildest refuges in the U.S.

Whaling and the Makah

The U.S. signed a treaty with the Makah tribe in 1855 allowing whaling (Art. 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.

—-Treaty of Neah Bay, 1855, Article 4.

The U.S. is a member of the International Whaling Commission that had a zero limit on whaling. The CITES treaty listed gray whales as endangered and protected, to which the US is a party. Traditional killing and IWC guidelines for humane killing conflict with traditional hunts. Japan and other whaling nations object to the Makah breaking the moratorium. The Makah have gone through the Administrative Law process for a permit to harvest one or two whales per year.

The International Whaling Commission allows tribes to hunt whales for "aboriginal subsistence" if they have a continued tradition of whale hunting. The tribe has not hunted whales for over 70 years, and few tribal members remember how. But in 1997, the Makah government argued successfully to the commission that a whale hunt was necessary to the tribe's cultural survival. In 1998, the Makah were allowed to take 4-5 gray whales. A moratorium was called when environmental groups objected to the taking as well as the means of killing the whales; while Norway and Japan objected loudly to the perceived unfairness to their commercial whaling industry which was subject to a moratorium although there was vast cheating on the restriction by Japan. Japan used the scientific exception in the International Whaling restrictions to harvest more than a 1,000 whales a year, only to find them advertised for sale as whale meat on Japan’s amazon (warning, the photo is disturbing). 

In 2019, the U.S. NOAA, Fisheries office proposed regulations to allow the Makah to resume gray whale hunting. After going through the lengthy regulation process, known as “notice and comment” from public input and agency consideration, on June 23, 2024 the regulations were final to allow the Makah to resume hunting 25 Eastern North Pacific Gray Whales over a 10-year period. They would still need to go through the permitting process for each hunt.

Comments were many on denying the exception to the take permit, even for the sake of indigenous culture. Lisa Distefano of the Sea Shepherd Conservation Society was quoted as once saying,"We're just wondering when people are going to wake up and realize this isn't about native rights." Opponents also complain that the Makahs and their supporters are bending the definition of subsistence, opening the door to possibly for-profit whale hunts.

Meanwhile, Japan dropped out of the International Whaling Commission compromising any ability to negotiate further with an already defiant Japan.

The International Whaling Commission had workshops on how to humanely kill a whale, criticizing the brutal death of a whale when a traditional harpoon was used in the Makah hunt. They developed a set of 11-points to guide nations on the humane efforts. These two points indicate the difficulty of regulating indigenous hunts:

4. RECOGNISES the difficulty in some aboriginal subsistence hunts of obtaining time to death information; and notes that, where it can be assessed, the lack of information regarding time to death on aboriginal subsistence hunts prohibits an assessment of any improvement in these hunts.

• 5. ENCOURAGES all Contracting Governments to provide appropriate technical assistance to reduce time to unconsciousness and death in all aboriginal subsistence whaling.

The regulations were further delayed due to an “unusual mortality event” (UME) declared by NOAA when hundreds of gray whales were washing up on shores on the west coast of the U.S., devastating the already fragile and low population. The event ran from 2019 to 2023, and an investigation revealed the whales were dying of malnutrition on their migratory path from Mexico back to Alaska, failing to calve as a result of that, further decreasing the recovery effort. The gray whale has started to show some recovery, in 2024.

An interesting story I would like to share was when I had the honor of teaching high school age intertribal students at the Native American Fish & Wildlife Camp and Workshop in Colorado a number of years ago. The students had been asked to bring a story and some articles for showing something about their culture and traditions. A Makah student explained this complicated political story about her Tribe’s effort to resume their traditional whaling, and like many other non-Natives, some of the students asked her why they had to kill a gray whale — why not kill some other whale that was not endangered? She explained that the gray whale’s behavior is that it swims closer to shore than the other whales and this is necessary to involve the entire tribe in the traditional harvesting process—those in the water as well as the majority who participant from the shore. That was a good example of how traditions cannot always be understood from looking from the outside and making conclusions about them or the participants.

The world the Makah once lived in was in balance, and unfortunately the world they have inherited through globalization and colonization has threatened their traditions and culture. Because this culture is so integrated with the gray whale they are in many ways tied to its fate. They are not alone. Many other Pacific coastal tribes have whaling traditions, as do indigenous people from Russia, also in conflict over the international politics that have overwhelmed their way of life.

There is reason to be optimistic with the recovery of the gray whale population, the focus of the International Whaling Commission on Indigenous whale hunting, and decades of diplomacy that has worked (for all but Japan). Traditional hunting has amassed a wealth of indigenous knowledge about whales, their behavior and their survival. Ultimately, sharing knowledge from both indigenous and western scientific perspectives may ultimately prove the answer to ensuring the gray whale continues to exist.

To read more articles by Professor Sutton go to:  https://profvictoria.substack.com/ 

Professor Victoria Sutton (Lumbee) is a law professor on the faculty of Texas Tech University. In 2005, Sutton became a founding member of the National Congress of American Indians, Policy Advisory Board to the NCAI Policy Center, positioning the Native American community to act and lead on policy issues affecting Indigenous communities in the United States.