CHALLENGES AND OPPORTUNITIES FOR THE MAKAH TRIBE AND OLYMPIC COAST NATIONAL MARINE SANCTUARY

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1 CHALLENGES AND OPPORTUNITIES FOR THE MAKAH TRIBE AND OLYMPIC COAST NATIONAL MARINE SANCTUARY Vincent Cooke, Makah Tribe George Galasso, Olympic National Marine Sanctuary The Makah Tribe is a self-governing treaty tribe, with co-management responsibility for natural resources within their usual and accustomed fishing, hunting and gathering areas. The Olympic Coast National Marine Sanctuary (OCNMS or Sanctuary) is a nationally designated marine protected area, whose boundaries are within the Makah s Usual and Accustomed area. The Makah supported the Sanctuary s designation in 1994 as a means to protect their resources from the threats of oil spills and offshore drilling. Since designation the Makah and the Sanctuary have worked on a number of projects of mutual interest; however, there has also been some uncertainty on how to proceed on certain initiatives, the proper way to conduct government-to-government consultations and concerns related to potentially conflicting responsibilities. The authors will share some lessons learned and make recommendations on how the Sanctuary and the Tribe can have an appropriate and meaningful dialogue during the Sanctuary s upcoming management plan review. These views are those of the authors and not necessarily those of the Tribe or the Sanctuary. In January 1855 the Makah Tribe signed a treaty with the United States government ceding much of their territory but reserving certain lands and the right of taking fish and of whaling or sealing in usual and accustomed areas. It is an important distinction that natural resource rights were not exchanged for lands, since these rights existed prior to the negotiation of the treaty. The treaty guaranteed the protection and reservation of these rights. While the Tribe has successfully fought in court to protect and reaffirm these rights, many tribal members believe these rights have diminished over time. Some Tribal members believe that the Sanctuary s actions are undermining the Tribe s reserved treaty rights. Many tribal members would likely look more favorably on the Sanctuary if, in carrying out its mandate, it strengthened and enhanced the Tribe s sovereign treaty rights. The usual and accustomed area rights of the Stevens Treaties (signed by governor Isaac Stevens in the mid 1800 s) are unique in the Pacific Northwest. The Makah ancestors were more apt to give up land rights versus water rights because, as was said by Makah elders during treaty making times, the water is our land. There is an old story about the farming equipment the U.S. government gave to the Tribe many years ago to try and encourage Makahs to be farmers. The farming gear rotted and the Makahs used the pitchforks to make halibut fishing gear. The economy of Neah Bay is severely depressed and the Tribe currently faces serious poverty and other social problems. The Tribe will continue, as they always have, to look to the ocean for prosperity and

2 subsistence. Any restrictions that are put in place by other governments that limit the Tribe s ability to prosper will be seen as a violation of the promises made during the signing of the treaty. Olympic Coast National Marine Sanctuary s relationship with federally recognized tribes is unique within the National Marine Sanctuary Program. The trust responsibility and relationship of OCNMS, as well as other agencies, to the Makah, Quileute, Hoh and Quinault tribes is articulated in the Treaty with the Makah Tribe, several judicial decisions, Sanctuary regulations and in Executive Orders. Many Tribal members believe that the Sanctuary is often conflicted between their federal trust responsibility and the Sanctuary s mandate for resource protection. During the Sanctuary s designation process; wording of certain regulations was modified based on comments from the Makah Tribe. While regulatory language varies slightly from one site to another, typically a permit to conduct a prohibited activity within a National Marine Sanctuary can only be issued if the activity will not substantially injure Sanctuary resources and will promote research, education, and salvage or recovery efforts. Olympic Coast National Marine Sanctuary is unique in that it can issue a permit if the activity will not substantially injure Sanctuary resources and qualities and will promote the welfare of any Indian tribe adjacent to the Sanctuary. In addition where the issuance or denial of a permit is requested by the governing body of an Indian tribe, the Director shall consider and protect the interests of the tribe to the fullest extent practicable in keeping with the purposes of the Sanctuary and his or her fiduciary duties to the tribe (15 CFR (c)). Just prior to Sanctuary designation in 1994, the Makah Tribe suffered the consequences of two major oil spills, the Nestucca in 1988 spilling 230,000 gallons of fuel oil and the Tenyo Maru in 1991 spilling 354,800 gallons of fuel oil and 97,800 gallons of diesel fuel. These oil spills as well as potential development of offshore oil leases were in the minds of many who supported the designation of the Sanctuary. Efforts taken by the Sanctuary to reduce the potential of oil spills have been supported and appreciated by the Makah Tribe. These efforts include the designation of an area to be avoided, routing ships further offshore, the closure of an anchorage in Makah Bay, and support by the Sanctuary for the positioning of a rescue tug in Neah Bay. Other efforts undertaken by the Sanctuary that have been viewed favorably by the Makah are joint efforts to provide interpretive programming on the Makah Reservation. The Sanctuary has a small interpretive station in Neah Bay that is seasonally staffed by tribal members. Additional joint research and resource protection programs are at various stages of development. When the Sanctuary was first designated an advisory council was established. Membership included seats for each of the four treaty tribes adjacent to the Sanctuary, as well as other agencies and non-governmental interest groups. While the council was not the only means of communicating with the tribes, discussing issues of importance to the tribes in this venue, without previously

3 discussing them in a government to-government setting, caused some difficulties. It is the general view of the Tribe that, as more seats have been added to the advisory council, the opportunity for direct communication with the Sanctuary Superintendent has diminished. When advisory council recommendations are being made about the management of marine resources, the Tribes have everything at stake and everything to lose. No other advisory council participants have an equal proportion of their economy, culture and future at stake every time recommendations are made. This has forced Tribes to be defensive and put up barriers to protect their resource rights. One possible remedy would be to have a tribal advisory council that would be briefed on issues prior to them being discussed before the larger advisory council. They would also brief the Sanctuary on issues related to their usual and accustomed areas. The important distinction between the groups would be the governmentto-government nature of the discussions of the tribal group. In 2000 a working group of the OCNMS advisory council was formed to evaluate marine zoning as a management tool within the Sanctuary. The Makah Tribe was very concerned with how the work of the group proceeded. Of particular concern were early recommendations by a technical advisory panel, consisting of a group of coastal ecologists with local knowledge. This group identified sections of shoreline that have extraordinary ecological significance focusing on habitat and ecological considerations. Despite the fact that the working group did not consider zoning options for tribal lands, the recommendations of the panel were made regardless of land ownership. Because some of the recommendations for increased protection were located on the Makah reservation, the report of this group was highly controversial and offended the Makah Tribe. In addition the panel did not include tribal members or staff that could have contributed substantially to the decision process. Many Tribal members believe that these sections of shoreline are pristine because the Tribe has managed these areas for thousands of years. The lessons learned from this process provide an opportunity for the Tribe and the Sanctuary to better plan for future policy development processes. The Makah Tribe depends on treaty secured fishing rights in marine waters to sustain culture and economics. Because the Tribe s rights are geographically restricted to their usual and accustomed areas, they were very concerned with the precedent of restricting harvest in some zones with their usual and accustomed areas. No-take areas could deprive the Tribe of the most important part of their livelihood and way of life. Some marine protected are proponents suggest that harvest restrictions would not apply to Indian treaty harvest; however, this would put treaty harvesters in the untenable position of harvesting resources within an area restricted to others. The Makah tribe fears that this situation could be used to attack and limit their rights. The National Marine Sanctuary Act requires that Sanctuaries periodically review their management plans. OCNMS is planning to review its management

4 plan beginning in the fall of The review will examine OCNMS s existing programs and regulations to determine if they adequately protect Sanctuary resources. The National Marine Sanctuary Program has been conducting a number of these reviews since 1998 and has provided guidance on how these reviews may proceed. Given the unique nature of OCNMS s relationship with treaty tribes, this process will need to be modified accordingly. Given recent experiences that the Makah and the Sanctuary have had related to the work on marine zoning, it is clear that it would be of mutual benefit to both parties if this modified process can be agreed upon ahead of time. Prior to formally initiating the process the Sanctuary should brief the Makah Tribal Council on the Management Plan Review and a Memorandum of Agreement (MOA) should be negotiated on how to conduct government-to-government consultations throughout the review. The MOA could document the modifications to the management plan review, along with agreed upon methods and timelines for implementation and communication. In addition if resources are available the Sanctuary should fund a position of tribal liaison for the duration of the review process. If at all possible the method of selection and the duties of the tribal liaison should be agreed upon by the Makah, Quileute, Hoh and Quinault. The Sanctuary needs to communicate on a number of different levels not all of which rise to the level of government-to-government consultations. Meetings of the Sanctuary Superintendent (or more senior NOAA officials) with the elected Makah Tribal Council may constitute a government-to-government consultation if agreed to by both parties, but tribal participation in OCNMS s Advisory Council or a working group does not. That being the case, it is still of enormous value to the Sanctuary to have the advice of the Makah in these venues. Another area of communication that could use improvement is that between the Sanctuary and tribal members. The Makah Tribal Council could facilitate this by inviting the Sanctuary to hold community open houses and public scoping meetings on the Reservation. Despite occasional setbacks the relationship with the Makah Tribe and the Sanctuary has been very positive. The Makah Tribe has been gracious in working with OCNMS, a newcomer to Olympic Coast resource management issues. Relationships between staff members have been rewarding both on a professional and personal level and the protection of the Olympic Coast s ecosystem is of mutual importance to the Makah Tribe and to the Sanctuary. While we have much in common, the potential for disagreements related to future projects and management issues will continue to exist. The dynamic between the Sanctuary s responsibility to consider and protect the interests of the Makah Tribe and their responsibility to protect Sanctuary resources is a challenging one that requires not only improved institutional arrangements, but hopefully, over time, an increased level of trust as well. Coming to an understanding on how to work through these issues is of great importance to both groups. The Makah and the Sanctuary have an opportunity to learn from

5 recent mistakes and to improve the necessary dialogue that will occur during the review of the Sanctuary s management plan. Vincent Cooke Makah Tribe P.O. Box 115 Neah Bay, WA Ph (360) Fax (360) George Galasso NOAA Olympic Coast National Marine Sanctuary 115 East Railroad Ave Port Angeles, WA Ph (360) extension 12 Fax (360)

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