[House Report 109-283]
[From the U.S. Government Publishing Office]



109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    109-283

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 EXPRESSING THE SENSE OF THE CONGRESS UPHOLDING THE MAKAH TRIBE TREATY 
                                 RIGHTS

                                _______
                                

 November 10, 2005.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

  Mr. Pombo, from the Committee on Resources, submitted the following

                              R E P O R T

                    [To accompany H. Con. Res. 267]

  The Committee on Resources, to whom was referred the 
concurrent resolution (H. Con. Res. 267) expressing the sense 
of the Congress upholding the Makah Tribe treaty rights, having 
considered the same, report favorably thereon with amendments 
and recommend that the concurrent resolution be agreed to.

  The amendments are as follows:
  Strike out all after the resolving clause and insert the 
following:

That the Congress disapproves of requiring the Makah Tribe to obtain a 
waiver and a permit under the Marine Mammal Protection Act of 1972 
before taking gray whales, and expresses its intent that the Government 
of the United States should uphold the treaty rights of the Makah 
Tribe.

  Amend the preable to read as follows:

Whereas the United States and the Makah Tribe signed a treaty at Neah Bay 
on January 31, 1855, which was ratified by Congress on March 8, 1859;

Whereas under the treaty, the Tribe ceded to the United States 
approximately 300,000 acres of its aboriginal homelands on the Olympic 
Peninsula in the State of Washington;

Whereas in exchange for the cession of land benefiting the United States, a 
reservation was established for the Tribe and several rights were secured 
to the Tribe, including the right under Article 4 of ``whaling'', which had 
been a tradition for more than 1,500 years;

Whereas the Tribe voluntarily and temporarily ceased whaling in the 1920's 
prior to protections being implemented and the gray whale population being 
listed as endangered under the Endangered Species Act of 1973;

Whereas the United States has now scientifically concluded that the gray 
whale population is presently neither threatened nor endangered, in 1994 
the population was removed from the endangered species list, and the 
population has repopulated to a level that can be harvested by the tribe on 
a sustainable basis;

Whereas the Tribe sought to restore its ancient tradition of whaling, and 
took a gray whale in 1999 pursuant to its treaty right;

Whereas the tribe's ability to exercise its treaty rights with respect to 
such takings are being seriously impaired by the Marine Mammal Protection 
Act of 1972;

Whereas the Makah Tribe has been required to apply for a waiver under the 
Marine Mammal Protection Act of 1972, but the procedures under such Act for 
obtaining a waiver are burdensome, costly, and contrary to the letter and 
spirit of the Tribe's treaty rights, and it will take years for the Tribe 
to obtain a waiver; and

Whereas the National Congress of American Indians adopted Resolution #MOH-
04-025 and the Affiliated Tribes of the Northwest Indians adopted 
Resolution No. 98-35 in full support of the Tribe's treaty rights: Now, 
therefore, be it

                          PURPOSE OF THE BILL

    The purpose of H. Con. Res. 267 is to express the sense of 
the Congress upholding the Makah Tribe treaty rights.

                  BACKGROUND AND NEED FOR LEGISLATION

    H. Con. Res. 267 expresses support for upholding the right 
of the Makah Tribe to hunt whales under the Treaty of Neah Bay. 
The Tribe is prevented from enjoying its treaty right by a 
ruling of the Ninth Circuit U.S. Court of Appeals under the 
Marine Mammal Protection Act. The concurrent resolution is 
necessary because the federal government has an obligation to 
honor deals the United States made with Indian tribes under 
treaties.
    During the 19th century, the United States entered into a 
number of treaties with sovereign tribes in the West. The 
government's goal was to acquire the tribes' lands to make room 
for non-Indian settlement and expansion of U.S. territory. 
These treaties of ``cession'' usually involved deals under 
which the tribes gave up significant amounts of land in 
exchange for reservations under the jurisdiction of the tribe, 
and for the protection of certain rights. Such rights often 
included the right of tribal members to hunt and fish in 
certain areas.
    The Makah Tribe resides on westernmost reservation in the 
United States, on the Olympic Peninsula in the State of 
Washington. Under the Treaty of Neah Bay of 1855, the Tribe 
ceded about 300,000 acres of its aboriginal homelands to the 
United States. Article 4 of the treaty secured whaling rights 
to the Tribe, the only such American Indian tribe with whaling 
rights under treaty.
    The Tribe hunted gray whales for subsistence until it 
ceased hunts in the 1920s when the whale population was reduced 
by commercial whaling. However, gray whales were still hunted 
until 1946 when an international commercial harvest ban was put 
into place. Whale populations have rebounded in recent decades 
and a subsistence quota was approved for the Tribe to harvest 
up to 20 gray whales from 1998 through 2002, and for 20 whales 
between 2003 and 2007 (with no more than five allowed to be 
taken in any one year). The quota is implemented in the U.S. 
through the Whaling Convention Act.
    The Tribe took one gray whale until lawsuits by animal 
rights activists blocked additional hunts. In 2004, the Ninth 
Circuit Court of Appeals required the Tribe to seek a waiver 
under the Marine Mammal Protection Act of 1972 (MMPA) to 
harvest a whale, irrespective of the Tribe's treaty right.
    While the Tribe has not conceded its treaty right, in 
February 2005 it requested a MMPA waiver from the National 
Marine Fisheries Service. There is no guarantee the waiver will 
be granted, leaving the Tribe with costly paperwork, studies 
and legal burdens that may last years with no certain outcome.
    More importantly, the Tribe is being forced to pursue a 
process that is contrary to its treaty. The precedent set by 
this decision could affect other treaty rights of other tribes. 
This is why the National Congress of American Indians (NCAI) 
and the Affiliated Tribes of Northwest Indians adopted 
Resolutions #MOH-04-025 and #98-35, respectively, in support of 
the Makah Tribe treaty rights. The NCAI resolution notes that 
the MMPA ruling ``sets a dangerous precedent that threatens the 
Treaty hunting and fishing rights of Tribes across the United 
States and Alaska.''
    Specifically, H. Con. Res. 267 measure expresses the sense 
of Congress that requiring the Tribe to adhere to the MMPA 
waiver process is contrary to the Tribe's treaty. It further 
expresses that the government should uphold the Tribe's treaty 
right to hunt gray whales. During the full committee markup of 
the concurrent resolution, the Chairman offered two amendments. 
The amendment to the resolving clause clarifies that Congress 
disapproves of making the Tribe obtain a waiver under the MMPA 
to pursue its treaty right to hunt gray whales. The underlying 
text of the concurrent resolution expresses disapproval of an 
``abrogation'' of the Tribe's treaty right. While the word 
``abrogation'' was intended to make a strong statement, it is 
not an appropriate term to use in the context of treaty rights, 
and the term is accordingly deleted by the amendment.
    The amendment to the preamble makes technical corrections, 
except for the amendments to the seventh and eighth ``whereas'' 
clauses. The seventh and eight clauses are amended to clarify 
that Congress finds that the Tribe's treaty rights are 
seriously impaired, not legally abrogated as declared in the 
underlying resolution.

                            COMMITTEE ACTION

    H. Con. Res. 267 was introduced on October 17, 2005, by 
Resources Committee Chairman Richard W. Pombo (R-CA). The bill 
was referred to the Committee on Resources. On October 19, 
2005, the Full Resources Committee met to consider the 
concurrent resolution. Chairman Pombo offered an amendment to 
the resolving clause to clarify that Congress disapproves of 
requiring the Makah Tribe to obtain an MMPA waiver. It was 
adopted by voice vote. Chairman Pombo then offered an amendment 
to the preamble to make several technical corrections, and to 
clarify that Congress finds that the Tribe's treaty rights are 
seriously impaired. It was adopted by voice vote. The 
concurrent resolution was then ordered favorably reported to 
the House of Representatives by a roll call vote of 21 to 6, as 
follows:


            COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Resources' oversight findings and recommendations 
are reflected in the body of this report.

                   CONSTITUTIONAL AUTHORITY STATEMENT

    Article I, section 8 of the Constitution of the United 
States grants Congress the authority to enact this bill.

                    COMPLIANCE WITH HOUSE RULE XIII

    1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. This is a sense of the 
Congress resolution and therefore it will have no impact on the 
federal budget.
    2. Congressional Budget Act. As required by clause 3(c)(2) 
of rule XIII of the Rules of the House of Representatives and 
section 308(a) of the Congressional Budget Act of 1974, this 
bill does not contain any new budget authority, spending 
authority, credit authority, or an increase or decrease in 
revenues or tax expenditures.
    3. General Performance Goals and Objectives. This bill does 
not authorize funding and therefore, clause 3(c)(4) of rule 
XIII of the Rules of the House of Representatives does not 
apply.

                    COMPLIANCE WITH PUBLIC LAW 104-4

    This bill contains no unfunded mandates.

                PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

    This bill is not intended to preempt any State, local or 
tribal law.

                        CHANGES IN EXISTING LAW

    If enacted, this bill would make no changes in existing 
law.

                                  
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