In a new effort to release the last surviving southern resident orca in captivity, two Lummi Nation tribal members have notified a Miami theme park they will sue if the whale is not released and repatriated to her home waters within 90 days.

The Miami Seaquarium, which has held the orca in captivity since August 1970, declined to comment on the notice of intent to sue.

Lolita, also known as Tokitae, was recently renamed Sk’aliCh’elh-tenaut by the tribe for the village at Penn Cove in Puget Sound where she was captured. She still performs twice daily for food for paying customers at the Seaquarium where she lives in the smallest tank of any orca in North America.

It is possible that L25, or Ocean Sun, estimated to have been born in 1928, and the oldest of the southern residents, is Tokitae’s mother, though that has never been scientifically proven. To be sure, she has many living relations among the southern residents that frequent Puget Sound.

The Lummi also regard all the southern residents as family, with whom they have shared the same waters for thousands of years.

Because of that connection, two Lummi tribal members, Ellie Kinley and Raynell Morris on Saturday announced the filing of their notice of intent to sue the Seaquarium to get her back. The Lummi — who are hosting the annual intertribal canoe journey, also declared Saturday International Tokitae Day.

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The suit would be brought under the federal Native American Graves Protection and Repatriation Act (NAGPRA), passed in 1990 without objection from Congress and  signed by President George H.W. Bush. The statute has been used ever since by tribes and first nations to repatriate human remains and culturally important items from museums and other institutions.

Under the law, a tribe may seek repatriation from any institution which receives federal funds — which the Seaquarium has on multiple occasions. A cultural connection must also exist between the tribe and what is sought to be returned, and it must be something that no one had a right to alienate from the tribe.

Tokitae fits on all fronts, Kinley and Morris argue in their letter to the Seaquarium, because she was taken without the consent or even awareness of the tribe in 1970. The tribe also has shared a deep connection with the southern residents for as long as can be remembered.

Tim McKeown recently retired after working for 29 years for the Department of the Interior including 18 years writing the regulations to implement NAGPRA. He was hired by the Lummi Nation to assess the possibility of a lawsuit to free the orca under the impetus of the law.

“This one is pushing the envelope a little,” McKeown said. But it also fits the purpose of the law, which is to return to cultural use tribal possessions now in commercial venues.

“In terms of a situation where people pay to see something and putting it back in its cultural context, that is exactly what NAGPRA is for,” McKeown said.

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For Kinley, every day Tokitae remains in captivity at the Seaquarium is painful.

“They are literally part of our family that lives under the sea; they are us, and we are them,” Kinley said.

The capture era that began in the mid-1960s cost a generation of orcas mostly taken from the Puget Sound. All of those whales are dead today but one: Tokitae.

“It’s our last chance to do what is right, and bring her home,” Kinley said.

The Lummi have made numerous requests to the Seaquarium and visited in person and even trailered a totem pole all the way to Miami and back, advocating for the return of the orca to her family. But each time the tribe has received no direct response, said Morris, senior policy adviser in the Sovereignty and Treaty Protection Office of the Lummi Indian Business Council.

In earlier public statements, the Seaquarium general manager has stated the Lummi’s proposal to retire Tokitae to a netted off cove in her home waters is a dangerous “experiment.” The Seaquarium maintains she is better off under its care than in her home waters, where the southern residents are endangered.

“They choose to make statements that are derogatory to me and my family, that we would not know how to take care of her, that she would not survive, that she is better off staying with them … It is hurtful,” Morris said.

Bringing Tokitae back home is part of healing the Salish Sea, Kinley said, and restoring the southern residents to health.

“If she could hear her family again, and they could hear her, it might just be enough, to give them the will to keep on going until we can get them increased chinook,” Kinley said.

The southern residents suffer from multiple, intertwined threats, including lack of adequate, available salmon, and toxics in the environment.

With the biggest native fishing fleet on the West Coast, the Lummi also have suffered from the declining health of the waters their people have always relied on.

“She is of the same generation,” Kinley said of the orca, whose grandmother, like her own, lived during a time of abundance now imperiled.

“This is about the whole big picture,” Kinley said. “She is a really important part of healing the Salish Sea.”