New Supreme Court Case Threatens Legal Protections for Animals
Law & Policy•5 min read
Before the oldest orca in captivity died earlier this month, advocates and researchers argued over the plan for her release.
Words by Grace Hussain
As a little girl, I loved to sit in the splash zone, a smile plastered to my face. I was thrilled to be watching the massive black and white orca as she leapt from the water and seemed to smile back at the audience. Like the other children in the crowd, I knew nothing of her small tank and the efforts underway to return the 3.5 ton performer to her native waters and pod.
The orca, who is known by many names — Lolita, Toki, Tokitae, Sk’aliCh’elh-tenaut — thrilled hundreds of thousands during the more than five decades she spent at Miami Seaquarium. On August 18, 2023, the marine park announced on X, formerly Twitter, that she had passed away. According to Friends of Toki, one of the major players in her release plan, veterinarians suspect she died from a kidney condition.
Just a few months prior, it was announced that after extensive efforts by various organizations and individuals, she would be returning to the Salish Sea. Though her death came before she could be returned home, the initiative included work from a diverse group of stakeholders including Sacred Sea, The Dolphin Company, Friends of Toki, and Jim Irsay, owner of the Indianapolis Colts.
Not everyone was in favor of her return to her native waters. A group of professionals who have worked with Toki in the past, Truth 4 Toki, had posted on their website that “she does not do well with change,” and saw the move as little more than a public relations stunt for the marine park. Whereas for others, the move was a way to give the orca time in her native waters, and unite her with family.
Advocates had hoped that her release would accelerate the relocation of other cetaceans from marine parks to sea sanctuaries. The animal sanctuary accrediting organization, Global Federation of Animal Sanctuaries (GFAS), launched what are the first standards for marine cetacean sanctuaries earlier this summer. While the standards came too late for Toki, they may help serve the hundreds of dolphins and whales still kept as entertainers in marine parks.
Prior to her death, Truth 4 Toki — an organization made up of Toki’s current and former trainers, veterinarians and caretakers — had argued against her release, saying that the move could prove detrimental.
Their concerns attracted public support, with a petition to keep the whale in Florida garnering more than 43,000 signatures. Despite the objections, a site was selected for her relocation, which advocates hoped would be by the end of the year.
Toki’s road to release was a long one. In June 2021, a USDA inspection report revealed several welfare concerns and instances in which facility trainers made unilateral decisions without consulting — or in direct contradiction to — veterinary recommendations.
Despite her veterinarian’s objections, the report revealed, her daily feed was reduced by 30 pounds and she was still compelled to perform big jumps and fast swims during both training and shows, all at the behest of the facility’s training coordinator.
The report also made note of several problems with her environment, including bad water quality, excessive sun exposure and a pool that was breaking down around her, with a broken water pump.
After these numerous issues were revealed by the inspection, her owners at the time, MS Leisure Company, Inc. — a subsidiary of The Dolphin Company, opted to close off her stadium and remove her from public display — a move that strategically exempted her from protection under the Animal Welfare Act and future USDA inspections.
Once The Dolphin Company announced that she was not going to perform anymore, negotiations over her future ensued, providing an opening for the diverse coalition to effectively advocate for her return to the seas — even though it never came to be.
The announcement that she would be heading home came in March 2023. The Dolphin Company had entered into an agreement with Friends of Toki, allowing the nonprofit to orchestrate her release. Jim Irsay, owner of the Indianapolis Colts, had pledged to fund the endeavor. “It’s time for her to go home, and I will do whatever it takes to get her there,” Irsay said on X, formerly known as Twitter.
However, the famous orca faced several setbacks. She fell severely ill in October of 2022 and again in June 2023. In both instances she made a swift recovery. Her swift rebound was undoubtedly helped by the improvement in her care and housing, including improved water quality. For the months that followed,Toki was undergoing training to help prepare her for life outside of a marine park, including introducing her to the sling that would have carried her to her new home.
Among the coalition working on Toki’s final release was Ellie Kinley, a Lummi tribal member and president of Sacred Sea, an organization that was fighting to bring Toki back to her home waters.
As part of her efforts, Kinley — who considers herself a protector, not an activist — held numerous ceremonies for Toki, including spreading cedar in the water outside the intakes for Toki’s tank. According to Lummi belief, salmon are able to navigate home by smelling the cedar along the way. By spreading the cedar there too, Kinley hoped that Toki would “know home again.”
“I can’t wait until she’s in a nice cold rainy day,” said Kinley, just last month.
In Toki’s case, it was clear the new housing wouldn’t meet GFAS standards, Lori Marino, a neuroscientist and animal behavior expert, who worked on the standards told Sentient Media. “They had to rush to find a place for her,” Marino says, but her handlers could at least try to meet as many of the guidelines as possible.
Setting up a cetacean sanctuary is no small feat. The Whale Sanctuary Project, where Marino works, runs a Nova Scotia facility that has been in the works for six years as the organization identifies the perfect site and works through the extensive, but necessary, permitting processes.
According to poll data, people don’t like to see orcas in captivity. Valerie Taylor, Executive Director of GFAS told Sentient Media, “there is a lot of public support” for the creation of seaside sanctuaries right now. Experts from various backgrounds collaborated on the new GFAS standards in hopes of providing a happy retirement for cetaceans. Among them are representatives from the National Aquarium, Sea Life Trust and Marino with The Whale Sanctuary Project, all entities in the process of creating or updating sea sanctuaries.
There are plenty of challenges, including “more structural elements to look at [with] a cetacean sanctuary,” said Kristin Leppert Wildlife Director at GFAS, like water quality and UV rays. “I’m learning a whole new vocabulary,” she said.
Currently there are no facilities accredited under the new standards. However, that could soon change as the sanctuaries that helped develop the standards may soon be candidates.
For Marino, seaside sanctuaries are becoming “part of the landscape,” but it’s important for there to be strict standards in place. “Zoos and marine parks love to talk about accreditation from different organizations,” she says, and it’s important that sanctuaries also have standards they can point to.
Though these came too late for Toki, the standards will hopefully help pave the way for future animals in entertainment to be released.
Throughout their efforts to bring her home, Sacred Sea has told the story not only of a whale in captivity but also of a fractured family, a framing that Kinley believes helped win over public support and the rest of the coalition involved with her release to bring about their success.
For the Lummi Nation, the Southern Residents aren’t simply whales, says Kinley, but “people that live under the waves“ and more than that, “they’re family.” That’s why Sacred Sea fought so hard to bring Toki home, says Kinley, repeating: “because she’s family.”
For many Indigenous people, Tokitae’s story echoes their own, and those of their children who were kidnapped from their communities in the name of education.
It’s the same thing that happened “to my grandparents’ generation when the kids were taken away and put in boarding schools, and the savage was taken out of them before they got to return to the reservation,” says Kinley. “She was stolen from the wild, and the wild was taken out of her.”
Kinley worried that even after her release, Toki would have had to be fed to survive, but she was still “looking forward to the day…when her pen is opened” and she’s allowed to leave with an escort and “do what she wants to do.” Kinley hoped that one day the orca wouldn’t have needed to come back, instead choosing to stay out in open water.
Tokitae’s likely mother, Ocean Sun, still swims their native waters, and Kinley had hoped that the two would be reunited before Toki’s death. “We don’t know how close [Toki] is to the end of her life,” said Kinley last month, and she deserved to be back home.
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