On June 7, 2004 the Ninth Circuit Court of Appeals denied the Makah tribe a hearing before the full appeals court. The ruling by the three-member panel of the court in San Francisco stands.
The panel had ruled that the tribe must be required to write an environmental impact statement and obtain federal permits before hunting for gray whales.
The Court ruling states that the tribe is subject to federal environmental laws, including the Marine Mammal Protection Act.
The Makah claimed that the International Whaling Commission granted them a five year permit to kill five whales each year. The IWC did not grant such a permit despite claims by the Makah and in fact IWC regulations clearly state that the Malah hunt is illegal because there is no need for a subsistence hunt by the Makah and the Makah had long ago abandoned their whaling activities.
In 1999, the Makah illegally slaughtered one juvenile Gray whale. The five year permit that the Makah claimed to have has now expired.
John Arum, the attorney for the Makah, said the ruling has set an unwelcome precedent for other tribes in the West where the Ninth Circuit Court has jurisdiction. If the tribe were to appeal further and lose before the U.S. Supreme Court, the precedent would be nationwide. He said the tribal council will have to determine its next move.
American Indian tribes contend that their treaty rights trump environmental laws, but the appeals court disagrees. The court ruled that the Marine Mammal Protection Act applies to all people in the United States except for Native Alaskans with subsistence needs. If the tribe were not subject to review under the law, it could one day threaten populations of gray whales or other marine mammals, the court ruled.
The Sea Shepherd Conservation Society aggressively opposed the Makah whale hunt between 1995 and 2000 and was the first organization to do so. The Society was viciously criticized and accused of racism for daring to challenge a native hunt.
Captain Paul Watson said at the time, "we are color blind on the issue of illegal whaling. The laws apply equally to all peoples and cultures. To discriminate would be racist. We oppose this illegal hunt just as we oppose the illegal killing of whales by the Japanese, Norwegians and Icelanders. The Makah are in violation of international conservation law and they are in violation of U.S. law and the courts will determine that this is so."
The courts have indeed made such a ruling and Sea Shepherd was correct in opposing the whale hunt on the grounds that it was illegal.