ABOARD a small boat in Biscayne Bay, Florida, Raynell Morris (Squil-le-he-le) beats a steady rhythm on a handheld drum. , her voice cracks with emotion. 鈥淵our people are here,鈥� she says. 鈥淲e鈥檒l bring you home.鈥�
Morris鈥檚 call is directed at the Miami Seaquarium where an animal she considers her kin is kept in captivity. Sk鈥檃liCh鈥檈lh-tenaut 鈥� also known as Tokitae or Lolita 鈥� is a Southern Resident orca. It is the last week in September, and Morris has travelled 5500 kilometres from her home in Washington state to mark the 50th anniversary of the whale鈥檚 capture. Sk鈥檃liCh鈥檈lh-tenaut鈥檚 incarceration remains an open wound for Morris and the rest of the Lummi Nation, the Native American people in whose territory the whale was taken. Various groups have been fighting for her release for decades. Now, the Lummi are leading a new approach.
The latest bid to free Sk鈥檃liCh鈥檈lh-tenaut centres on her cultural significance, striking at the heart of questions about how to recognise Indigenous rights and make amends for historical harms. Morris and another Lummi tribal elder, Ellie Kinley (Tah-Mahs), intend to sue the Miami Seaquarium to release Sk鈥檃liCh鈥檈lh-tenaut under the Native American Graves Protection and Repatriation Act (NAGPRA), the federal US law governing the return of objects of cultural importance to Native Americans. If they do, it would be the first time the law has been applied to a living being. Those involved believe it is the best hope yet of getting Sk鈥檃liCh鈥檈lh-tenaut released.
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Southern Resident orcas are a single clan of whales, consisting of three interrelated matriarchal pods found in the Salish Sea, off the coast of the Pacific Northwest. To the Lummi, who have lived on the shore alongside them for thousands of years, they are sacred: they call them qwe鈥檒hol鈥檓echen, 鈥渙ur relations under the water鈥�. To scientists, who have studied them intensely for a decade, they are a trove of information about orca social life and communication. But the population is highly precarious due to habitat degradation, noise pollution and declining numbers of Chinook salmon, which make up 85 per cent of their diet. Last year, there were just 73 individuals 鈥� with Sk鈥檃liCh鈥檈lh-tenaut making 74.
In 1970, she was one of seven calves taken from their pod at Penn Cove in the Salish Sea and transported across the US for display in marine parks. Today, Sk鈥檃liCh鈥檈lh-tenaut is the sole survivor. Her mother is believed to be Ocean Sun, the 92-year-old matriarch of one of the pods. For most of Sk鈥檃liCh鈥檈lh-tenaut鈥檚 life, home has been a small tank that is as deep as she is long 鈥� 6 metres 鈥� which she shares with two Pacific white-sided dolphins. When the Miami Seaquarium wasn鈥檛 closed to the public by the coronavirus pandemic, she performed to visitors twice daily.
鈥淵ou can hardly call it a life,鈥� says Ingrid Visser at the in New Zealand, who has spent 25 years studying orca behaviour in the wild and campaigning for an end to their captivity. In 2016, she was an expert witness in PETA鈥檚 unsuccessful lawsuit against the Miami Seaquarium under the US Animal Welfare Act. In her report, Visser described Sk鈥檃liCh鈥檈lh-tenaut鈥檚 tank as 鈥済rossly inadequate鈥� and noted that the orca displayed signs of a compromised immune system, extreme stress and deprivation.
For the Lummi, who draw no distinction between what they call their 鈥渂lackfish鈥� and human kin, Sk鈥檃liCh鈥檈lh-tenaut鈥檚 captivity is nothing short of imprisonment. 鈥淲e are one and the same,鈥� says Morris. 鈥淲e call ourselves a pod.鈥� Nevertheless, she also recognises that these ancestral spiritual ties aren鈥檛 enough to secure Sk鈥檃liCh鈥檈lh-tenaut鈥檚 freedom. 鈥淵ou have to walk in the white world,鈥� says Morris. Before returning to the Lummi Reservation in 2007, she worked for more than 22 years in corporate banking, and then as a White House staffer under Bill Clinton. It is this experience, she believes, that led her ancestors to task her with the 鈥渟acred obligation鈥� of bringing Sk鈥檃liCh鈥檈lh-tenaut home.
To that end, Morris and Kinley have enlisted help from the , a Colorado-based non-profit organisation that aims to transform laws worldwide so that they protect, restore and stabilise ecosystems. In July, they informed the Miami Seaquarium and its parent companies The Miami Seaquarium, having received federal funds, meets the definition of a museum, so is subject to this legislation, they argue. Their aim is for Sk鈥檃liCh鈥檈lh-tenaut to be repatriated as 鈥渃ultural patrimony鈥�, defined by NAGPRA as 鈥渁n object having ongoing historical, traditional or cultural importance central鈥� to a Native American group or culture.
鈥淚 think it is unique,鈥� says Jan Bernstein of Bernstein & Associates NAGPRA Consultants in Denver, Colorado, who isn鈥檛 involved in the case. She believes the argument is convincing and, if successful, would set a precedent in terms of applying the law to a living animal. However, she adds, filing a lawsuit would be the last step of many to reaching an agreement.
鈥淚n 1970, she was one of seven calves taken from their pod in the Salish Sea鈥�
Indeed, it may not come to that. Grant Wilson, executive director of the Earth Law Center, is hopeful that the Miami Seaquarium can be persuaded to partner with the Lummi on Sk鈥檃liCh鈥檈lh-tenaut鈥檚 release. There is mounting opposition to keeping cetaceans in captivity, he says. Other marine parks have already taken the initiative. For instance, the National Aquarium in Baltimore, Maryland, has been working towards 鈥� since 2016. Similar enclosures are springing up around the world, including in , and Australia. Wilson suggests this trend, along with the financial strain of the pandemic, should be an incentive to bring about a 鈥減ositive end to this decades-long story鈥�.
Plans for Sk鈥檃liCh鈥檈lh-tenaut are already in the works. With funds raised over the years for her release, the Lummi have contracted the Whale Sanctuary Project 鈥� a non-profit organisation working to create a permanent refuge for captive cetaceans off Nova Scotia in Canada 鈥� to draft a proposal for how she might be returned to the Salish Sea. Executive director Charles Vinick, who helped reintroduce Free Willy star Keiko to the wild in Iceland two decades ago, says Sk鈥檃liCh鈥檈lh-tenaut鈥檚 resilience would need to be evaluated in stages, starting with a health assessment. She also needs to be taught survival basics, such as how to catch live fish and how to swim at speed, before there is any possibility of reintegration with her pod. 鈥淭he key to this is doing it responsibly 鈥� for her, for her family and for the other Southern Resident orcas in the area,鈥� says Vinick.
Nevertheless, he believes that of all the attempts to free Sk鈥檃liCh鈥檈lh-tenaut over the decades, this one has the greatest chance of success because it is a 鈥渟piritual endeavour鈥� led by the Lummi. For Morris, the cooperation across worlds is creating unstoppable momentum for Sk鈥檃liCh鈥檈lh-tenaut鈥檚 release. 鈥淲e have the culture, they have the science, and now we have the law,鈥� she says. 鈥淲e are going to complete our sacred obligation.鈥�
One party, however, has yet to come to the table. A Miami Seaquarium spokesperson declined an interview with New 杏吧原创, saying the organisation didn鈥檛 comment on pending or threatened litigation. However, in September, curator Chris Plante reiterating the Seaquarium鈥檚 previous position, that the 鈥減erilous move鈥� could endanger the life of Lolita鈥�.
Vinick, Visser and others accept that Sk鈥檃liCh鈥檈lh-tenaut鈥檚 advanced age and half-century in captivity mean she isn鈥檛 a strong candidate for release. A supported 鈥渞etirement鈥�, such as the open sea pen where Keiko settled in Norway after failing to embrace the wild, may be the most likely outcome. That, they say, would be a marked improvement on her current situation.
鈥淭he Lummi draw no distinction between their 鈥榖lackfish鈥� and human kin鈥�
Indigenous knowledge
As for Plante鈥檚 suggestion that energy would be better spent protecting the Southern Resident orcas, Vinick says: 鈥淚t鈥檚 not a question of 鈥榚ither/or鈥�, it is a question of 鈥榖oth/and鈥�. You have to do it all.鈥� The Lummi Nation already supports the Southern Resident orcas in a range of ways, from providing ceremonial offerings of live Chinook salmon to . They see bringing Sk鈥檃liCh鈥檈lh-tenaut home as equally important to their work protecting and restoring the Salish Sea 鈥� a view that reflects a deeply felt connection to that ecosystem, not readily accounted for by Western frameworks of science or law.
鈥淚ndigenous people have different knowledge 鈥� of animals, the water, sky and land 鈥� that have to be honoured,鈥� says Morris. 鈥淲e鈥檙e starting to be heard, but we feel like there鈥檚 a lot more work to do to build that awareness.鈥� The Earth Law Center recognises that such knowledge is essential to navigating the rapidly looming ecological collapse, says Wilson. However, at Anglia Ruskin University in the UK reveals that Indigenous knowledge is regularly underutilised or misunderstood when it comes to environmental decision-making. There is a common misconception among non-Indigenous scientists that it is limited in scope or needs 鈥渧erifying鈥� to be useful, precluding productive and equitable partnerships, she says.
Wheeler believes that developing methods to work with both systems while respecting the needs of Indigenous peoples could be a win-win for advancing common environmental goals. Wilson shares this view. He hopes that Sk鈥檃liCh鈥檈lh-tenaut鈥檚 case will prove 鈥渙ne of many where we can listen to Indigenous voices and world views, and apply them in a way that is beneficial for all of us鈥�.
The Earth Law Center isn鈥檛 letting up the pressure. In September, at a , it alleged that by holding her, the Miami Seaquarium is in breach of the United Nations Declaration on the Rights of Indigenous Peoples. Indigenous leaders from New Zealand, North America and Central and East Asia , with many invoking the destruction of their own sacred animals. The Seaquarium hasn鈥檛 responded publicly.
Morris also sees parallels between Sk鈥檃liCh鈥檈lh-tenaut鈥檚 separation from her family and the experience of the Lummi under colonialism. From the late-19th century, hundreds of thousands of Native American children were taken from their parents to be raised in boarding schools. 鈥淲e know how Ocean Sun feels with her daughter still being enslaved,鈥� she says. 鈥淲e feel that the healing can begin when she鈥檚 brought home, and she鈥檚 free.鈥�
