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Why We Fight for Nonhuman Rights: Sk’aliCh’elh-tenaut’s Story Part 2

By Emily Gambone

UPDATE (8/18/23): Sk’aliCh’elh-tenaut, also known as Lolita, has died in captivity in the Miami Seaquarium. In March of 2023, after activists spent years fighting for her freedom, the Miami Seaquarium announced it would work with Friends of Lolita to release Sk’aliCh’elh-tenaut to her home waters in the Pacific Northwest. We lament that she passed away still a prisoner, never again knowing the open ocean or the joys of being with her pod, and we hope the story of her life will help bring an end to the terrible injustice that is orca captivity.

In Part I of our story, we followed the events that led to an orca’s capture and arrival at the Miami Seaquarium. Here, little Sk’aliCh’elh-tenaut’s story continues. She is also known as Tokitae to many advocates, and Lolita to her captors and others, but we will call her by the name Lummi Nation has given her, linking her back to her home. Here is a video about her naming, including how to say Sk’aliCh’elh-tenaut. 

When Sk’aliCh’elh-tenaut arrives at the Miami Seaquarium, a month and a half after being torn from her family in the Penn Cove capture, she is desolate. Pat Sykes—a young show assistant—will later recount Sk’aliCh’elh-tenaut’s first days in Miami: “She had a very hard time—she just barely floated. The skin on her back cracked and bled from the sun and wind exposure. She wouldn’t eat the diet of frozen herring. At night she cried.”

For eight months, she is kept separate from the Miami Seaquarium’s other orca, Hugo, though they call to each other in the shared language of the Southern Resident community to which they both belong. Hugo is now five years old, and two years have passed since he was taken from his mother and family in the Salish Sea, but he has not adjusted to life in captivity. He never will. He rams his head repeatedly into the side of his tank, a behavior he will continue for the rest of his life. During the time he and Sk’aliCh’elh-tenaut are kept separate, he breaks through the viewing window of his enclosure, severing the tip of his rostrum.

Once he and Sk’aliCh’elh-tenaut are brought together in what the Seaquarium calls the “Whale Bowl,” Hugo’s personality changes, and he starts to exhibit aggression towards his trainers. With the exception of a temporary retirement for Hugo due to his aggression, he and Sk’aliCh’elh-tenaut will perform as many as four shows a day until he dies in March of 1980 from a brain hemorrhage after years of ramming his head into his tank. At the time of his death, he is fifteen years old, just half the average life expectancy of male orcas in the wild, some of whom have been known to live into their fifties. 

Although the Miami Seaquarium announces that Sk’aliCh’elh-tenaut shows no signs of mourning her orca companion, a study of her behavior before and after Hugo’s death, which will be published in 1986, reports that she spends more time swimming at night rather than her previous floating at the surface with respiration indicative of sleep. And during the day, she spends significantly more time submerged at the bottom of her tank. The study’s authors describe her behavior as “not unlike bereavement.” This is a brave statement for 1986. The scientific recognition of grief in nonhuman animals is not yet widely accepted as it will be decades later. The world has not yet watched a mother orca carry her dead baby’s body for seventeen days over a thousand miles, which in 2018 will bring an orca’s grief onto primetime news and social media feeds. Relatively few people heard the cries of Sk’aliCh’elh-tenaut and her family as they were separated in 1970. Fewer people still see Sk’aliCh’elh-tenaut floating alone on the bottom of her tank in 1980. 

The decades following Hugo’s death will be bereft of the companionship of other orcas, though she continues to call out to them. 

But we are jumping ahead in our story. What is happening outside of the Whale Bowl in the decade Sk’aliCh’elh-tenaut swims with Hugo around and around, performing daily shows for crowds of people under the hot Miami sun? 

The changing tides dredge up the bodies of drowned orca calves in the months after the Penn Cove roundup—the ones Ted Griffin and Don Goldsberry instructed divers to fill with rocks. One still has an anchor attached to his tail. And with the discovery of their mutilated bodies, with the memory of the orcas’ cries still fresh in the minds of many residents, another tide begins to turn, and public opinion shifts against the capture of orcas in the Salish Sea. 

In 1971, Washington State begins requiring permits of $1000 per orca as well as regulating capture methods and placing size limitations on the orcas captured. In 1972, Congress passes the Marine Mammal Protection Act (MMPA), which prohibits the “take” of marine mammals, including orcas. “Take” is defined as the successful or attempted harassment, hunting, killing or capturing of a marine mammal. Although the MMPA makes an exception for taking marine mammals for the purpose of exhibition, the days of hunting orcas off the coast of Washington are rapidly coming to an end. 

In 1976, Sk’aliCh’elh-tenaut’s captor, Goldsberry, is still at work in the Salish Sea, hunting orcas for SeaWorld. Ralph Munro, who at the time is a staff aide to Governor Dan Evans but will later be Secretary of State for Washington, is out sailing when he spots orcas fleeing from Goldsberry’s crew. As he tells the Seattle Times more than four decades later, “It was gruesome. As they closed the net there was a guy on the back of the boat with a torch, and he was lighting and dropping these explosives as fast as he could light them, boom, boom, boom, the orcas were screaming … I can still hear them, screaming back and forth… They had parts of the pod inside the net, and parts of the pod outside the net. It was just panic, totally disgusting. Sickening.”

But Ralph Munro doesn’t wait four decades to tell the story of the Budd Inlet capture. He alerts the press right away, and protestors surround the orcas trapped in nets and march to the courthouse where Attorney General Slade Gorton takes SeaWorld to court. The case is dismissed after the state of Washington and SeaWorld reach a settlement in which SeaWorld agrees to free the remaining orcas from the Budd Inlet capture and never hunt orcas off the coast of Washington again. They don’t stop hunting orcas, but they move their capture operations to Iceland, out of sight of the people they hope will pay to see their orca shows and believe the stories they tell, that the orcas’ lives are better and safer in a tank than in the sea with their families. 

By 1976, we have learned a great deal more about the orcas who live in the Salish Sea. Thanks to the work of Canadian marine biologist Michael Bigg, we have learned we can identify individual orcas by the saddle patch markings and dorsal fin shape and scars unique to each individual, including the bullet scars seen on 25% of orcas captured through 1970 off the coast of Washington. We have also learned, through Bigg’s census, which will be continued by Kenneth Balcomb of the Center for Whale Research, that there are far fewer orcas in the Salish Sea than the thousands presumed to swim there, especially among Sk’aliCh’elh-tenaut’s Southern Resident pod and community, comprised not only of L pod, to which she belongs, but also J and K pods. 

From 1974 to 1980, as the capture era ends, the Southern Resident community’s population increases from seventy to eighty-three orcas before decreasing from 1981 to 1984 in the years many of the captured babies would have begun to reach reproductive age. There will be no babies for Sk’aliCh’elh-tenaut, who spends her days performing tricks amid booming rock music and the screams of humans who have paid to see her perform, to swim in circles, to splash them.

Here is what we will learn about orcas in the years to come. We will learn that different populations of orcas have distinct cultures, distinct vocalizations, distinct food and habits. The Southern Residents live in matrilineal groups within J, K and L pods who share a recent maternal ancestor. Each matrilineal group, composed of a mother, her sons and daughters, and her daughters’ children, stay together for life, rarely spending more than a few hours apart. The matrilineal groups within a pod spend the majority of their time together, but sometimes, all three pods gather together as the Southern Resident J clan in what researchers call a superpod event, like the one happening at the time of the Penn Cove capture.

During a superpod, all three pods come together and line up facing each other. After a time of quiet stillness, they intermingle, vocalize, breech, mate. Observers describe superpods as unmistakably exciting and joyful events for these intensely social, deeply connected beings. Sometimes humans are lucky enough to witness the superpod events, but it’s impossible to know just how many Sk’aliCh’elh-tenaut has missed in the over half a century since the superpod during which she was taken from her family.

Here is what else we will learn. 

The Southern ResidentsSk’aliCh’elh-tenaut’s family—spend 50 to 67% of their time foraging for the fish they eat. Sk’aliCh’elh-tenaut is fed dead fish from a bucket like other captive orcas, most of whom are also given pounds and pounds of gelatin in an attempt to counteract dehydration caused by the inadequate water content of frozen fish. She cannot forage, she cannot echolocate to find her food and hunt her prey to the dark depths of the Salish Sea. She cannot share her food with members of her family. 

Let’s look at what her family is doing as she floats in her tank and performs two shows a day. Her family spends most of their time under water, between the surface and a depth of 98 feet, but every hour or so, individuals dive deeper than that, and every five hours, they may dive deeper than 490 feet. At about four years old when she was captured, Sk’aliCh’elh-tenaut would have known what it feels like to dive deep—even the 3-year-old orcas in the dive study dove to a mean maximum depth of 440 feet, meaning a 3-year-old orca dives twenty-two times the depth of Sk’aliCh’elh-tenaut’s tank. Her family only very rarely ventures into water less than sixteen feet deep. Sk’aliCh’elh-tenaut’s tank is twenty feet deep at its deepest, less than the length of her body. But the tank is called the Whale Bowl for a reason—the depth is not uniform and the tank is only twelve feet deep as it slopes towards its edge. 

Her family swims an average of seventy-five miles a day, with an average speed of eight miles per hour, though they can swim as fast as thirty miles per hour. Sk’aliCh’elh-tenaut’s tank—the smallest and oldest orca tank in North America—is eighty by sixty feet, if you ignore the concrete island obstructing the middle, as APHIS repeatedly does when renewing the Miami Seaquarium’s license. If you don’t ignore the concrete island, which spans forty-five feet, with approximately ten foot openings between each end and the tank wall, the practical width is reduced to thirty-five feet, making Sk’aliCh’elh-tenaut’s tank illegal by even the inadequate Animal Welfare Act (AWA) requirements. 

Her tank is less than four of her body lengths long, less than 1/66th of a mile, approximately 1/4950th of the average distance her family swims each day. To swim the length of her tank, Sk’aliCh’elh-tenaut needs at most five small flicks of her tail flukes. If she swam as far as her family, she would have to swim around the perimeter of her tank over 1,800 times a day. That is, if the gates between the island and the sides of the tank are open and she has access to the full circumference of her small enclosure. 

In former SeaWorld trainer John Hargrove’s deposition, he describes his reaction to seeing Sk’aliCh’elh-tenaut’s tank: 

“Walking into Lolita’s stadium I was shocked by the size and shallow depth of her tank, and the absolute absence of any enrichment to her enclosure. As discussed in this report, I have worked with orcas at three leading facilities and observed the animals’ poor welfare as a result of their too-small tanks and conditions of captivity. Yet Lolita’s tank at Miami Seaquarium is without question the smallest and most barren I have ever seen an orca forced to live in.” 

But it is not just depth and distance that have been taken from her. We know already if Sk’aliCh’elh-tenaut were swimming in the Salish Sea, she would be with her mother and the rest of her family, and with any children who may have been hers in a different life. And what would she see? She would see her family, but she would also see fish and crabs and seagrasses and rocks. She would see other marine mammals and the different depths and textures of the sea floor instead of the monotony of sunlit concrete, broken only by interactions with her trainers and the crowds of people attending her performances. Her eyes would not be damaged by sun and chlorine, she would not need to keep one eye closed during performances or receive eye drops to treat her painful eye condition pterygium, first diagnosed in the 1980s—a condition that causes inflammation, foreign body sensation, dryness and itchiness in the eye.

What would she feel? She would feel the changing temperatures of the water rushing past her, the touch of seaweed. Her environment would be tactile, varied. She would not scrape her flukes against the shallow concrete bottom of her tank and develop rubs and abrasions on her body. She would feel the frequent touch of her family members against her highly innervated skin, instead of the tooth rakes she sustains from the Pacific White-Sided Dolphins the Miami Seaquarium claims are an appropriate replacement for the companionship of other orcas. Instead, in her tank, the dolphins harass her. According to the animal behavioral records, she sustains frequent rakes, in which the dolphins cut her with their teeth, causing bleeding and scarring and necessitating the use of antibiotics. 

In addition to the animal records, we again have the observations of John Hargrove. In just the one morning he observes her, he sees the dolphins harassing her numerous times while she shows obvious signs of distress and attempts to tuck her pectoral flippers and tail flukes to protect them from the dolphins. At times, she lashes out, chasing the dolphins open-mouthed with teeth showing. She is not part of an orca community that hunts dolphins, and yet, at least one dolphin over her years of captivity is found dead in her tank of blunt force trauma. According to the AWA, she is supposed to be housed with at least one other orca or with a compatible companion of a biologically related species. The regulations go on to say, “However, marine mammals that are not compatible must not be housed in the same enclosure. Marine mammals must not be housed near other animals that cause them unreasonable stress or discomfort or interfere with their good health.”

What would Sk’aliCh’elh-tenaut hear, aside from the sounds of the sea, if she lived with her pod as companions instead of dolphins? We have learned that orcas have complex vocalizations, consisting of echolocation clicks, whistles, and pulsed calls. They use discrete pulsed calls to stay in contact with other pod members, even when they are out of sight of each other, and although clans share many calls, there are others which are unique to a specific pod. In 2002, this fact helps scientists identify the pod of Springer, a Northern Resident orphan found four hundred miles away from her family. After months of effort, she is transported north and reunited with her extended family. Nearly two decades after her reunion with her pod, she continues to swim with her family, along with two calves of her own.

Newborn orca calves already share a number of their pod’s calls, though their repertoire expands as they learn from their mothers and podmates. Sk’aliCh’elh-tenaut, in the years she swam with her mother, learned the dialect unique to L pod. According to A Puget Sound Orca in Captivity, Kenneth Balcomb of the Center for Whale Research repeatedly requests and even offers money to the Miami Seaquarium to be allowed to set up acoustic contact between Sk’aliCh’elh-tenaut and her family. Although his requests are denied each time, in 1996 Dateline NBC plays Balcomb’s recording of L Pod greeting each other to Sk’aliCh’elh-tenaut. As we can see in the footage of this moment, Sk’aliCh’elh-tenaut rises up out of the water and tilts her head close to the sounds of her family, more than a quarter century after she last saw or heard them. Since then, another quarter century has passed. 

What is life like for Sk’aliCh’elh-tenaut in the smallest orca tank in North America, as the only orca in the United States without another orca companion? As Ric O’Barry, dolphin trainer turned activist, explains in Liberating Lolita, “When [orcas] get together, they get together for life. We get together for birthdays and Christmas and stuff, they get together for life. And they live in a world of sound. So when we capture them like Lolita, we take away from them the two most important aspects of their life—the world of sound and their family.” 

Springer swims with her children, answering their calls as they answer hers. She has a constant acoustic reminder she is no longer alone like she was in the hard months of separation from her pod. But no one answers Sk’aliCh’elh-tenaut’s calls, and the only sounds she hears every day are the planes flying overhead, the stomping of feet on the stands surrounding her tank, the loud rock music accompanying her two performances, and the screams of the people who have bought tickets to watch her do tricks—people who believe the Miami Seaquarium’s claims that Sk’aliCh’elh-tenaut is happy here in her concrete tank, three thousand miles away from the sounds and touch of her family and the vast waters of the Salish Sea.

Read Part 3 here.

The Nonhuman Rights Project (NhRP) is the only civil rights organization in the United States dedicated solely to securing rights for nonhuman animals. Our work challenges an archaic, unjust legal status quo that views and treats all nonhuman animals as “things” with no rights. As with human rights, nonhuman rights are based on fundamental values and principles of justice such as liberty, autonomy, equality, and fairness. All of human history shows that the only way to truly protect human beings’ fundamental interests is to recognize their rights. It’s no different for nonhuman animals.

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