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Under NOAA's initial plan for managing Makah whaling, the Makah were restricted to hunting migrating whales in the open ocean. They could not hunt gray whales that spend the summer feeding in the shallower and more accessible Strait of Juan de Fuca, which borders the northern edge of the reservation.
For some unknown reason, 200 to 300 of the 26,000 gray whales that migrate to feeding grounds in the Bering Sea split off and spend some or all of the summer feeding in waters from Northern California to southeastern Alaska. Some scientists and animal rights activists say those are "resident" whales.
While most -- if not all -- of these whales join the annual winter migration to the Baja lagoons, some return year after year to the Washington summer feeding grounds.
The Makah, wanting to avoid a public relations fiasco for hunting a whale that has been returning to the same area year after year, initially agreed to hunt whales only in the open ocean and during times when migrations are taking place.
Animal rights groups, lead by Ocean Defense International, are now arguing that any gray whale actively feeding in Pacific Northwest waters -- including those in the ocean during migratory periods -- are "resident" whales and should be protected.
"It was clear that many of the whales targeted by the Makah were resident whales, evidenced by "mud plumes' present," ODI said in a statement to last year's IWC meeting. "The mud plumes are only present when whales are feeding. Migrating whales do not stop to feed."
Mud plumes are created when gray whales forage on the sea floor for food.
The Makah say there is no such thing as a "resident" whale because all the whales eventually migrate to Baja each winter. The "resident" whale issue has been drummed up to interfere with their hunt, the Makah say.
Keith Johnson, chairman of the Makah Whaling Commission and no relation to Wayne Johnson, says it doesn't matter where the whales stop to eat. He says it's impossible to determine how many whales spend time feeding exclusively in Pacific Northwest waters and how many feed there before continuing up to the Bering Sea.
Rather than trying to figure out whether a whale is a "resident" or a migratory whale, Johnson says the tribe's future approach will be more straightforward.
"If they stop here, watch out," he says.
NOAA is also taking the official stance that there is no such thing as "resident" whales.
"They might show up in the same place every year for three or four years running, but then they are not seen again," says NOAA's Scordino. "It is better to say they are feeding where food is available."
Even if the Makah exclusively hunted "resident" whales, scientists say it is unlikely that taking four or five each year would harm the population.
Calambokidis, however, cautions that if Canadian tribes that are closely related to the Makah begin hunting gray whales in significant numbers, it could damage the whale population in Pacific Northwest waters.
Several Canadian tribes have publicly stated that they would like to resume whaling. But unlike the Makah who have a treaty right to whale, the Canadian Indian tribes do not expect to have treaties signed with the Canadian government for several more years.
And the Canadian government is not likely to approve commercial whaling. Canada is not a member of the International Whaling Commission, but it banned commercial whaling in 1972.
Anti-whaling groups filed suit last winter in Washington state alleging the Makah hunt is endangering "resident" whales.
And more legal action is promised in the wake of the expected NOAA decision that the Makah hunt poses no significant threat to the gray whale population and that the Makah may hunt in areas frequented by "resident" whales.
Andrew Christie of the Sea Shepherd Conservation Society says, "The grounds for a lawsuit based on tainted process and bias will be present, and legal action a certainty."
The final arm of the animal rights propaganda campaign against the Makah was to claim the tribe intended to begin commercial whaling.
Once again, there is a sliver of truth to the allegation.
The Makah take a very aggressive stance to defending their treaty rights. They have engaged in numerous lawsuits for several decades to secure their fishing rights and title to property. Article IV of the 1855 treaty that ensures the Makah the right to fish, whale, and seal places no limits on how those resources are used -- whether for personal consumption or for commercial gain.
At the time of the treaty, the Makah conducted commercial whaling by trading whale products with neighboring tribes and Western enterprises, including the Hudson Bay Co.
The Makah made clear they didn't intend to conduct commercial whaling when they applied for an aboriginal whaling quota with the IWC and NOAA. But they also said they weren't giving up that treaty right for the future.