Metcalf v. Daley: The Makah Get Harpooned by NEPA

Thomas P. Rowland, Metcalf v. Daley: The Makah Get Harpooned by NEPA, 36 Gonz. L. Rev. 395 (2001).

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Americans began to hunt whales in the eighteenth century.[1] Only a century later, the United States had developed premier whaling practices and had nearly depleted the whale population to extinction.[2]  Although whales were a critical source of oil for Americans, the practice of whaling stopped when the United States tapped the petroleum industry as an alternate source of oil.[3]

While the United States hunted whales rather recently for a fairly brief period, other cultures began hunting whales thousands of years ago, using the whale for food, oil, clothing, and tools.[5] One such culture that began whale hunting thousands of years before the Americans is the Makah Tribe, located along the Olympic Peninsula in the northwestern corner of Washington State. The whale hunt is an ancient Makah tradition.[7] Gray and humpback whales once provided up to eighty percent of the tribe’s subsistence needs and the strenuous training and preparation demanded an entire community effort.[8]

The practice of commercial whaling was placed under a moratorium by the International Whaling Commission (“IWC”) in 1986.[9] This moratorium created a conflict, since the Makah were guaranteed the “right of taking fish and of whaling” under the 1855 Treaty of Neah Bay (“Treaty”)[10] signed by the United States.[11]  The Treaty recognizes the Makah’s sovereign rights and is treated as an agreement between the United States and a foreign nation.[12] However, the Makah voluntarily ceased all whale hunts around 1920 because commercial practices had virtually decimated the whale population.[13] This decimation caused the United States to list the gray whale as endangered under the Endangered Species Conservation Act of 1969, which led to the Endangered Species Act of 1973 (“ESA”).[14] However, in 1994, the gray whale was removed from the endangered species list, and the Makah decided to reinstate the traditional practice of hunting with the assistance of the United States government.[15]… Read more

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