May 17th marked the 10th anniversary of Makah tribal whalers pulling ashore the body of a 32-ton gray whale, taken in the first formal hunt in 70 years, at Neah Bay, on Washington state's Olympic Peninsula. Legal challenges since have prevented another such hunt, in spite of the deep cultural ties observed by members of the Makah tribe, and the life-changing nature of the 1999 hunt.

This is a complex issue because the 1855 Treaty of Neah Bay signed both by the federal government and the tribe specifically gives the Makah the right to hunt and kill marine mammals. The Makah culture's whaling tradition is as old as the tribe's memory—over a thousand years of traditional whaling—and they're the only tribe in the continental U.S. to have a specific concession for the right to continue whaling, by article 4 of the Neah Bay Treaty. The Makah ceased hunting whales in the 1920s, then the gray whale was on the brink of extinction because of commercial over-hunting. In 1994 the gray whale was removed from the Endangered Species List, and the Makah leadership began the long and laborious process of obtaining the necessary federal permits to once again hunt gray whales.

A US federal appeals court acknowledged that the treaty grants the Makah a right to hunt whales. However, the court ruled that the Makah are required to comply with the regulations set forth by the US Marine Mammal Protection Act and obtain a waiver before the tribe can proceed with another whale hunt. The Tribe apparently applied for such a waiver in February 2005, but animal rights activists, environmentalists, marine ecologists, and other groups have fiercely opposed a return to legal tribal hunting of gray whales off the Washington coast.

In addition, the illegal torture and killing of a gray whale in 2007 by five self-pronounced Makah whalers stirred up a great deal of public outrage and opposition to legalizing another such whaling expedition. It should be noted that the 1999 hunt was done with a federal permit, using traditional methods. The hunters were members of the tribe who were culturally and lineally designated as tribal whalers. That wasn't apparently the case with the men arrested in connection with the 2007 killing, in spite of their publicly-expressed frustration with the lengthy and complicated legal process necessary for the tribe to obtain the required permits and waivers to hold another hunt. In essence, the 2007 incident was five men completely  unsanctioned by the tribe, taking illegal potshots at a gray whale. They spent hours essentially torturing a protected marine mammal. All five men involved were prosecuted.

This anniversary is marked by somewhat discouraging numbers in this spring's gray whale count. The final number of gray whales in the 2009 census of the northern migration, by the way, is only 540 animals. That includes the 38 calves counted during the survey period for the Channel Islands, off the coast of California. That makes 2008-2009 the second-lowest calf-count in 26 seasons of monitoring for northbound gray whales.

Gray whales aren't out of danger, and that being the case, how do we balance sacred cultural traditions with preserving these amazing marine mammals?