WAYNE JOHNSON KNOWS what you think of him. He knows that you think he’s a killer, a bum, a drunk, a thug, a savage. He knows because he reads his press, trolling the internet at night for any mention of himself. “I worry about him, actually,” one of his lawyers said. “Some of the comments can get pretty nasty.”
For his part Johnson is stoic. “Yeah, I get death threats,” he told me. “Comes with the territory, I guess.” He ascribes most of them to “whackos” and says that he doesn’t give them — the threats, the whackos — too much thought. But the attention also seems to thrill him. “Google ‘Wayne Johnson’ and ‘whale,'” he said at one point. “See what you get.” So I did. What I got gave pause to the polite indifference with which I tend to read most online commentary. I don’t know how I would hold up if I were on the receiving end of so much vitriol. But then, I’ve never killed a whale.
THE BARE FACTS are known, and for the most part are uncontested: On the evening of September 7, 2007, on the Makah Reservation in Washington State, tribal whaling commissioner Andy Noel checked out buoys and weapons (five harpoons and a .577-caliber modified elephant gun nicknamed “Tyrannosaurus”) from the tribe’s inventory. The next morning, Noel, Johnson, Theron Parker, Frankie Gonzales, and William Secor Jr. took two boats onto the glass-smooth waters of Neah Bay. A little before 10 a.m., they saw a gray whale near the shore. In a nod to the spiritual relationship between man and manna, Johnson would later claim, “It chose us.” Others would hew to a less mystical interpretation in which the whale was one of the area’s nonmigratory residents, was therefore used to humans and their sightseeing ways, and so wouldn’t think to swim away when approached by a boat. But resident or no, the men harpooned the whale several times and, as Noel clung to the rope attached to a harpoon embedded in the animal, went to shoot it with the big gun. This procedure was in accord with the internationally sanctioned hybrid of traditional and modern hunting methods: first, the whale is harpooned the old-fashioned way, and then it is shot in the brainstem.
But here things started to go badly. The big gun misfired and fell overboard, and the only other means of quick dispatch at hand were a shotgun and a rifle. These lacked the strength to pierce the whale’s thick skull, though, and anyway the men shot at the wrong spot. Then they ran out of bullets.
Gunshots in Neah Bay are uncommon enough to alarm, and nearby boaters alerted the U.S. Coast Guard, which has a base on the reservation. The Coast Guard dispatched a boat and detained the men, taking custody of the whale by attaching the harpoon line to their own vessel. The men pleaded to be allowed to deliver a coup de grâce, but Coast Guard personnel wouldn’t let them — the goings-on were by then firmly trussed in chains of command and other bureaucratic contingencies. In the afternoon, the tribe’s marine mammal biologist, Jon Scordino, was brought out to assess the whale’s condition. The whale was by then barely moving, listless and insensate. Scordino knew it should be euthanized. Again the Coast Guard declined to do so because they lacked the proper tools. The Makah tribal council said they would, but first they wanted written permission to protect the tribe from what was likely to be further prosecution. By the time that permission arrived around 7:15 p.m., the whale had died, more than ten hours after it was first struck. The Coast Guard then allowed Joe McGimpsey, a Makah tribal member, to recite prayers over the carcass as they cut it loose. It drifted a little, then sank in the Strait of Juan de Fuca, in waters over seven hundred feet deep.
In the days after, as details of the incident and the identities of those involved spread, condemnation rained down on the Makah. The region was still smarting from 1999 when, attended by an armada of protesters as media helicopters swirled overhead, members of the tribe had paddled out and harpooned, then shot and killed, a gray whale — their first legally sanctioned hunt in over seventy years. Now, nearly a decade later, latent rage found new voice. Although a few of the letters that swamped area newspapers pleaded for temperance, most did not. Wrote one: “The world has just witnessed ‘the pride of the reservation,’ led by Wayne Johnson, essentially use a magnificent gray whale for target practice. So brave. So courageous and so important for their cultural identity. Enough of this nonsense.” Wrote another: “The idea that because their ancestors hunted whales, they therefore should be allowed to hunt whales, is silly. Our European ancestors hunted whales in the eighteenth and nineteenth centuries; but guess what? Our modern world has a revolutionary new concept: grocery stores! We’ve adapted, and the Makah need to, also.”
Amid this froth of opinion, a group of tribal members flew to Washington DC to reassure restive federal officials and the state’s skittish congressional delegation, both of which had provided crucial legal, logistical, and financial support for the 1999 hunt, that Johnson and his ilk by no means represented the intent of the tribe. Micah McCarty, a tribal councilman at the time, elected chairman in 2008 (and vice-chairman in 2009), was part of that group. McCarty is the great-grandson of Hishka, one of the last Makah whaling chiefs. He carves cedar masks in his garage — it took him a little more than a day to transform a block of cedar into the eerie, white, hollow-eyed gape of a drowned whaler that hangs next to his front door — and he’s well versed in the history of American Indian struggles. History has made him cynical. At a press conference in DC, he was asked what impact the hunt might have on the tribe’s legally sanctioned whaling aspirations, which at that time were in a bureaucratic stall. “It’s a public relations setback,” he answered. He later elaborated to me on what he had meant: “I hear a lot about how treaty rights are barbaric and archaic and have no place in a modern society. I mean, I’m sorry that people don’t like our philosophically inconvenient rights, but they need to understand just how deep it is for us as a people.”
Indeed, few things go as deep as the whale, that most charismatic of megafauna. Whenever I talked to a scholar of American Indian law — and when the Makah are involved, one ends up talking to a lot of legal scholars, it seems — there was one question I liked to ask because I thought it got bluntly to the heart of the matter: Isn’t this a straightforward case? The Makah signed the Treaty of Neah Bay in 1855. The treaty guarantees them the right to whale, and they are the only American Indian tribe to have secured themselves such a right. They stopped for a time when the gray whale was endangered, but, after it was delisted in 1994, they asked to start again. And while one may not like it, the treaty should be honored, shouldn’t it? Isn’t that all there is to it?
Each time the answer was something to the effect of: Are you kidding? That’s hardly all there is to it. Not by a long shot.
To which I’d say: Oh.
The legal scholar would continue: This isn’t just about treaty rights. It’s about people and some of their most strongly held beliefs. On both sides. It’s about how they try to explain their beliefs when they feel they shouldn’t have to, because when it’s your belief, it’s always obvious and self-evident. And it’s about how a society accommodates promises it made to protect traditions and beliefs that now conflict with its present values, and how it balances clashing moralities, especially when the traditions and beliefs that make it so squeamish happen to be what make a tribe a tribe, and go to the very core of its identity. All of which raises uncomfortable questions about how much of a right we, as that society, have to ask the tribes to behave in certain ways. And beyond that, it’s about how the tribes fit themselves into the world today, when they have more power to define themselves now than they have had for a long time. There are questions for the tribes, too: How does bringing back the old give us new life? What place should it have in our modern story?
These are not simple things to figure out at all.
DEPENDING ON the number of washouts or large tree branches sprawled across the road, Neah Bay is about a four-hour drive north of Seattle, on the northwesternmost tip of Washington State. The last stretch of the drive, from Port Angeles on, is beautiful but not exactly pleasant, as the narrow dipping state highway hugs the coast and its accompanying cliffs, and the white ribboned surf below beckons one to overcorrection if not outright ruin. The reservation itself, home to two thousand people or so, is also beautiful, or is at least surrounded by beauty — by hills dense with evergreens, jagged basalt headlands, and the waters of the bay and the strait and the dull pounding pulse of the Pacific that you can feel in your soles. But it, too, is not exactly pleasant. The community has a weary atmosphere, and its material poverty is sadly evident, made all the more so by the small, defiant efforts at civic renewal: a newly varnished war memorial on a gravel verge; a drive-through espresso stand festooned with Christmas lights.
This is where Wayne Johnson makes his home most of the time. It was April 2008 when I finally caught up with him. (He’s hard to get ahold of, and the tribe doesn’t go out of its way to make him available.) The day was sunny but also cold and a little windy, and we sat on the outside deck at the Warmhouse over cups of coffee. Over Johnson’s shoulder I could see the marina, with masts of seiners that stuck up like toothpicks on a crowded tray of hors d’oeuvres. Around them, two sea lions were flippering amid a raucous scrum of gulls. Every so often a bald eagle swept past. The tableau was so photogenic that I wondered if all the animals had been trained somehow.
Johnson’s mind was elsewhere, back when he was leading the training for the first hunt, long before this latest round of troubles. “In 1999, the crew would paddle back into the bay after a day of training, and kids would be crowding the docks,” he recalled. “They were like seagulls, watching, looking to get involved. I thought, wouldn’t it be nice to do something for these kids, to give them some pride in who they were.” A whale would have done that, he had hoped, would have transformed a community that was just trudging along. But look around now, almost ten years later. There’s no bowling alley, no place for the kids to hang out except under the street lamps or at the bus stop. Drugs and alcohol are still a problem, unemployment is way too high, and a lot of folks make it through the winter on commodity surplus cheese and canned goods. Better to have whale meat in their freezers to go with other healthy native foods.
This never came to pass, though, because soon after that first whale hunt, the tribe and the U.S. government were sued by environmental and animal rights groups. In 2002, the Ninth Circuit Court ruled that the U.S. had erred in allowing the Makah to hunt in the first place. If the tribe wanted to hunt again, it would first have to obtain a waiver from the Marine Mammal Protection Act (MMPA), which regulates, among other things, the conditions under which a marine mammal may be justifiably hunted.
The Makah were outraged. They felt betrayed. “It’s another treaty broken by the United States,” Johnson said angrily after the ruling, even though the U.S. had been a codefendant. “I’m going whaling again.”
The aforementioned legal scholars were also surprised.
“That ruling overturned decades of precedent,” says Charles Wilkinson, a professor of law at the University of Colorado. “The MMPA should not properly have been ruled to override their treaty.” To override it, he explained, the MMPA would have needed language that expressly countermanded the Makah’s treaty, or any other treaty. Since treaties are, at least on paper, the “supreme law of the land,” they take precedence, even over laws passed years later that prohibit certain actions.
Nowhere in the MMPA does it say anything about abrogating treaty rights. Nonetheless, something about whaling seemed to lessen the weight of the legal past. “There was a lot of emotion,” Wilkinson says. “I think the court felt that killing whales is kind of icky, kind of, you know, savage. That just flat-out comes into it.”
Whatever the feelings that the killing of a powerful environmental signifier evinces, which can run anywhere from a general distaste (my own reaction) to a visceral, almost violent revulsion (Paul Watson of the Sea Shepherd Conservation Society comes to mind, but others, too, of a less combative spirit), it is worth remembering that, although the Makah are the only tribe in the U.S. with a treaty right to whale, they are not the only tribe in the U.S. that whales. Alaska Natives have hunted bowhead for thousands of years; Thule culture, from which modern Inuit culture is descended, is structured almost entirely around the bowhead and its consumption.
Like the Makah, the Alaska Natives once found their subsistence pathway threatened by hands other than their own. In 1946, the year that the International Whaling Commission (IWC) was formed, the bowhead was one of the rarest whales in the world due to decades of overhunting by Europeans and Russians. To stay its extinction, the IWC instituted a moratorium on all bowhead whaling, save for a handful of aboriginal hunters, including the Alaska Natives. But in 1977, alarmed by further bowhead declines, the IWC called for a halt to all hunting. The Alaska Natives, who were at the time in the midst of a cultural revival that placed renewed emphasis on whaling, contested the decision, and the U.S. government, after some minor squabbling, backed them. In December of that year, the two groups asked that the ban be modified, couching their request in terms of cultural integrity as well as subsistence. In 1978, that request was granted, and Alaska Natives have had a small bowhead quota ever since.
Opposition to the Alaska Natives’ hunt is nowhere near as intense as it has been to the Makah’s, even though the bowhead is still critically endangered while the gray whale, depending on whom you ask, is not. “It’s one of those things I don’t get,” Micah McCarty says. “Maybe there’s a different recognition of the Freedoms of the Noble Savage, or something?” Charles Wilkinson also has to cast around for a clear reason. “There’s the geographic aspect, that’s probably part of it,” he says. “Another thing could be that, elsewhere, natives already have the right to whale, and the Makah are trying to get it. The delay makes them an easier target.” Perhaps. One other explanation could be the perceptions of modernity, or of its lack, that surround the Alaska Native and the landscape in which he hunts. Accurately or no, the Alaska Native of the popular imagination inhabits a premodern frontier, one of the last ones on the planet, and his hunt is an artifact from an unbroken nativity. It is not a photo of Wayne Johnson cradling an obscenely large gun in a canoe as it cruises in vulgar proximity to major urban centers. Miles from anywhere, standing on the sea ice in a sealskin parka as he scans an endless Arctic horizon, harpoon in hand, the Alaska Native is at once old and ageless. The whale he will kill has already been dead for a thousand years.
Most American Indians, though, are not so distant in space or time. If they wish to revive quiescent traditions, they often must do so in full view, which can lead to a lot of public comment, most of it unsolicited. Such was the case with the Makah. When they first tried to revive their whaling tradition in the 1990s, they were told that they lived in a modern age, that civilized people don’t kill whales, and so on. Also, the tribe hadn’t hunted for decades, so what was the big deal? Whaling was no longer a part of the contemporary Makah identity.
With this, most members of the Makah agreed. They said: That’s right, it isn’t. But it used to be. And yes, we haven’t gone whaling since the 1920s, when we stopped after the white man’s insatiable appetite for the gray whale almost drove it extinct; when we were herded onto the postage stamp that is our reservation; when our children were made to attend Indian schools where they were taught to be ashamed of who they were; when the Bureau of Indian Affairs threatened to arrest us if we performed our whaling ceremonies or had our potlatches; when our language became an academic curio; when the last of our whalers died. So yes, we don’t have a feel for the knowledge anymore. That doesn’t mean we feel nothing.
With this in mind, and to get another view of how the Makah might feel about claims of whaling’s obsolescence, I visited the Makah Cultural and Research Center — not, I was told, to be confused with that warehouse of departed cultures, a museum. This place celebrated a vital past rather than dead certainties. It was a quiet afternoon, and I was the only visitor. I walked up the hall, past the old maps and daguerreotypes, and into a spacious, vaguely sepulchral room. In its center, two canoes sat on stands. They were handsome craft, sturdy and high-prowed, both carved from cedar logs. The larger one, used for whaling, was thirty feet long.
Surrounding the canoes were display cases full of objects. Each had a small card with its Nuu-chah-nulth name and English equivalent, often more phrase than word, and itself a kind of lethal poetry. There, a section of the whale harpoon, a thick shaft of yew whittled to a point: yew-dupu•yak, or “tool that injures severely.” Coiled beneath, a cord of sinew, used to tie a dead whale’s mouth shut so it wouldn’t sink and be lost: subuqa•it, or “long line to hold and make mute.”
Most of the things in the room were old, but one item conspicuously was not. This was the large skeleton suspended over the two canoes, the remains of the gray whale from the 1999 hunt. Interred in dim space with the other relics, it was as still and silent as they were, with no mention of where it came from or what it might have meant. There are a number of possible reasons for this. Perhaps, given the skeleton’s turbulent history, the tribe didn’t want to draw undue attention to it. Or perhaps they wanted to place it within a larger, calmer historical frame, joining the present more seamlessly to the past. Or perhaps the museum staff simply hadn’t gotten around to labeling it yet. (When I asked the woman at the front desk, she shrugged. It was 4:57 p.m. — almost closing time.)
But the skeleton and its discontents stayed with me. Earlier, I had asked McCarty what the differences were between the event of 1999 and the incident in 2007 — between the austere gloom of the skeleton in the cultural center and the pile of bones and flesh on the seafloor.
“One of the main things is how we reacted as a people,” McCarty had said. “In 1999, there were certainly tribal members who didn’t think we should whale, but when the media and the protesters showed up, that did a lot to bring everyone together. Now, things are a lot more fractious. That whole thing made us look stupid and ridiculous, like we couldn’t control our own people. It was hard to take. We as a tribe didn’t choose this battle, remember.”
In fact, the tribe had assiduously avoided it, spending the intervening years between 1999 and the present working with the government to obtain the necessary MMPA waiver, writing cover letters and formal applications on handsome tribal letterhead depicting the mythical Thunderbird carrying a whale. It was Wayne Johnson who had had enough of what he saw as a bureaucratic neutering. “I’m proud of what we did,” he had said in September 2007, reading from a statement. “Some people are calling what I did an act of civil disobedience. I don’t know much about that, but if civil is what the government is, then call my part savage disobedience.”
These were poignant words, for a number of reasons. The annals of American Indian civil disobedience are rich and varied, but for men who considered themselves treaty warriors in the Pacific Northwest, one episode seems especially apt: the salmon wars of the 1960s and ’70s. At that time, members of the Salmon Nation became fed up with the state of Washington limiting their access to the fish, as well as the methods by which they could catch the few they were allotted, so they decided to test the valence of the Medicine Creek Treaty, signed in 1854. One of the prime movers in the conflict was the current chair of the Northwest Indian Fisheries Commission, a Nisqually tribesman named Billy Frank Jr. Fourteen years old at the time, Frank started to fish illegally, sometimes at night so the state fish wardens who prowled the riverbanks wouldn’t see him, and sometimes during the day so they would. They did, and after more than forty years of fish-ins, arrests, beatings, and the occasional shooting, Frank and his case ended up in federal court. A three-year battle resulted in the 1974 Boldt decision, a landmark ruling that allotted the tribes half of all the salmon caught in Puget Sound waters.
That history of deliberate, ritualized transgression using a treaty as a shield is the lens through which Wayne Johnson sees his whale hunt. “We can use [Frank’s] help and example to get other tribes involved because it’s a treaty right for all Indians, really,” he argues. “We lose, everybody loses.”
But Johnson’s reading on the proper employ of tribal sovereignty is at odds with convention. “In terms of the Indian experience,” says Charles Wilkinson, “sovereignty and civil disobedience have been in large part mutually exclusive. Major civil disobedience has not been widespread, and most of it has been off-reservation.” That is, it has been outside of the tribal councils, which is where sovereignty is located on the reservations. Marching against another sovereign doesn’t come easily to the councils. For one thing, as Micah McCarty notes, if one were to do so it would upset the notion that the relationship between the U.S. and the tribes is government-to-government, rather than government-to-strident-but-largely-powerless-indigenous-collective. So if Johnson views the Salmon Wars in terms of resistance, persecution, and eventual concession, then McCarty, although he shares that view in part, takes away a lesson in negotiation and intergovernmental dealings. Engaging, he feels, is just as much an assertion of sovereignty as resistance.
“In the wake of the Boldt decision,” McCarty said, “adversaries became comanagers of a resource. That’s really what this is about.” The current arrangement is far from ideal, and the Treaty of Neah Bay may have been “negotiated in a framework of extortion,” as he put it, but it’s what the tribe has to work with, and it means Wayne Johnson wasn’t simply flouting federal laws on that calm September morning. “Five individuals defamed the lawful intentions of a tribal government,” McCarty said.
Wayne Johnson seemed to acknowledge as much. “We’ve put them all in a tough spot,” he said, referring to the tribal council and its newest chairman. “They wanted to keep everything in Neah Bay, to keep it out of federal court. But whether they agreed to it or not, there’s still the treaty right. They’ve got to back me up.” He felt bad for Micah, for making his life more difficult, but it was a collateral sympathy. The council had, after all, been more or less content to work through the proper channels. It was willing to be patient where he and his crew were not. Maybe, then, he was thinking of two governments that were all too civil, even as he called himself savage.
Such conflicts — in this case a private one that was obscured by its more sensational public components — will only become more common. “Tribes are approaching a point in their evolution as modern polities that is leading to some real growing pains,” says David Wilkins, a professor of American Indian Studies at the University of Minnesota. “Freedoms and liberties almost always used to be couched in a framework of what was good for the nation. It was rare for an individual to go against the tribe.” But that is happening more and more now. “No one really has a road map for where we’re going,” Wilkins says. “We’re nervous, we’re uncomfortable, we go back and forth in a real tug of war. What do you do when individuals feel they have rights that clash with a tribe’s aims? How is that resolved? Who gets to decide what it means to be a good Indian?”
With this rejuvenated capacity for self-determination, the Makah, and tribes in general, are pushing up against philosophical boundaries that they have not approached before. Just how they negotiate them will do much to determine how often we on the outside will find ourselves asking whether we’re entitled to have a say in the identity politics of American Indians. Such a say we may be loath to relinquish. After the 2007 incident, it was hard to miss the whiff of disapproving patronage from an otherwise bilious commentariat. “I hoped that having won their rights and lifted their spirits, the Makah would not pursue another whale,” wrote Seattle Times columnist Jerry Large. “It’s not in the Makah’s long-term interest to be seen as whale-killers.” This echoed the consensus after the 1999 hunt, when most people figured that a live whale would never again be harpooned in U.S. waters: The tribe had had their fun. They got to paddle around in their canoes and relive their traditions and kill a whale. A grudging public winced, but didn’t fuss all that much. It was a compromise of sorts between the Makah and everyone who hadn’t sued them.
Few seem to have considered that the Makah might not be attracted to this kind of compromise, in which a won right is reduced to a single dramatic exercise of it, and then put back in its case. It is possible they have other ideas about what is in their own long-term interest. And part of that interest, some of the Makah say, may lie in moving past a single identifier — and, with that, away from the attentions of people like me — as the tribe focuses on the more workaday needs that accompany the rise of this more modern Indian nation.
“I don’t want to trivialize it,” McCarty said after I’d called him yet again to get his take on this or that minor development, “but as a tribe, we’re more than just the whale. I mean, we’re trying to get a new health center, and that’s important for the community. Sometimes, I wish people would think about that stuff, too.”
When he said this, though, I have to confess that I thought instead of something else. I thought of a wall at the cultural center, one behind the two enormous canoes and the whale skeleton. The wall is covered by an enlarged photograph, which serves as a backdrop for the whole hushed space. Taken in 1910, it was until the past ten years or so the only known picture of Makah whalers in action. It shows two men in a canoe, and a whale in front of them. One of the men clings to a rope attached to a harpoon that is embedded in the whale, which is towing the canoe in its boiling wake. Near the prow, the other man is poised to plunge a second harpoon into the whale’s back, and he does not look like he is going to miss. It is an arresting image, all the more so because, save for the canoe and the men and the whale, the scene is shrouded in fog and is thus almost entirely, appropriately gray. There is no horizon, no sense of a world outside of this taut, intimate struggle. Just a blur of frozen action — of two men bound, one throwing and the other clinging, and a whale, powerfully churning through the water, unable to get away.