Aboriginal subsistence whaling and the right to practice and revitalize cultural traditions and customs

Journal of International Wildlife Law and Policy

Volumn 8, Issue 2-3, 2005, Pages 177-219

  Firestone, Jeremy ^a   Lilley, Jonathan ^a  

^a UNIVERSITY OF DELAWARE   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CULTURAL TRADITION; INDIGENOUS POPULATION; WHALING;

EID: 31344467583     PISSN: 13880292     EISSN: 15481476     Source Type: Journal    
DOI: 10.1080/13880290590965339     Document Type: Article

References (356)

1. Felix S. Cohen, The Erosion of Indian Rights, 1950-1953, 62 Yale Law Journal 348, 390 (1953).
2. In 2003, the Makah Indian Nation had approximately 2,390 members, with slightly more than half living on the Makah Indian Reservation: http://www.makah.com/community.htm (accessed on August 11, 2003);
3. Ann M. Renker, "Whale Hunting and the Makah Tribe: A Needs Statement," submitted by the United States to the IWC, IWC/54/AS2, Agenda Item 5.2 (December 4, 2002). The Indian reservation is composed of slightly more than 27,000 acres in the northwestern corner of the Olympic Peninsula, 719 acres in and around the Ozette village, and two offshore islands.
4. U.S.C. § 1531-1544.
5. Fed. Reg. 31094 (June 16, 1994).
6. The rising population of the eastern North Pacific stock of gray whales led to conversations within the Makah Indian tribe about resuming whaling even before the delisting process, both of which led to the controversy. See Jennifer Sepez, Political and Social Ecology of Contemporary Makah Subsistence Hunting, Fishing and Shellfish Collecting Practices, at 72-73 (2001; unpublished Ph.D. dissertation, University of Washington. On file with University of Washington and the authors).
7. See Matthew Dennis, Makahs and Gray Whales: Not Black and White, The Ecotone 3, 4 (1999), available at http://www.uoregon.edu/~ecostudy/ resources/publications/ecotone/Web%20PDF%20Versions/ Ecotone%20Fall%20%2799.pdf
8. We also would note that we support the existing moratorium on commercial whaling, which has allowed whale stocks to recover, and soundly reject whaling that uses "scientific" study as a pretext.
9. Serena Nanda, Cultural Anthropology (5th ed., 1994), at 50.
10. The literature review that yielded these definitions was conducted in the late 1950s by A.L. Kroeber and Clyde Kluckhorn: William A. Haviland, Cultural Anthropology (1993), at 30.
11. Edward Burnett Tylor, Primitive Culture: Researches into the Development of Mythology, Philosophy, REeligion Language, Arts and Customs. (1871)
12. cited by Haviland, supra note 9 at 30.
13. Id. at 30.
14. Id. at 29.
15. Charlotte Cote, It's Who We Are. Makah and Nuu-chah-nulth Whaling - A History, at 27 (2002) (unpublished Ph.D. dissertation, University of California, Berkeley. On file with University of California, Berkeley and the authors). A member of the Nuu-chah-nulth tribe - a tribe located on Vancouver Island closely related to the Makah - Cote states how she grew up with this legend and how it has been passed down through generations by word of mouth. She notes how the story connects the mythical Thunderbird with the whale and comments how both are important to the Makah and Nuu-chah-nulth cultures.
16. Sepez, supra note 5 at 69. The headmen of elite families held whaling rights, while positions relating to the hunt (e.g., harpooner) were inherited.
17. Id. at 68.
18. Id.;
19. NOAA-NMFS, Final Environmental Assessment on Issuing a Quota to the Makah Indian Tribe for a Subsistence Hunt on Gray Whales for the Years 2001 and 2002, at 46, available at http://www.nmfs.noaa.gov/pr/PR2/ Conservation_and_Recovery_Program/makah_EA.html.
20. Robert J. Miller, Exercising Cultural Self-Determination: The Makah Indian Tribe Goes Whaling, 25 Am. Indian L. Rev., 165 (2000/2001).
21. See also Renker, supra note 2.
22. Id. at 6.
23. See Miller, supra note 17 at 187. Much of our current knowledge of traditional Makah whaling practices stems from this archaeological treasure trove.
24. Renker, supra note 2 at 6, citing David Huelsbeck, Whaling in the Precontact Economy of the Central Northwest Coast, 25 Arctic Anthropology, 1-15 (1988).
25. citing David Huelsbeck, Whaling in the Precontact Economy of the Central Northwest Coast, 25 Arctic Anthropology, 1-15 (1988).
26. Miller, supra note 17 at 175.
27. Id. Very little of a landed whale was wasted. The whale meat was consumed, the blubber was either eaten or rendered into valuable oil, which was both consumed and served as a valuable trading commodity, tools and weapons were crafted from the bones, the intestines and stomach made useful storage containers for the oil, and the sinew was skillfully transformed into harpoon ropes.
28. Id.
29. The seminal article on Makah whaling equipment is T.T. Waterman, The Whaling Equipment of the Makah Indians, 1(1) U. Wash. Publicaitons in Pol. Soc. Sci. 1-67 at 9 (1920), available at http://content.lib.washington.edu/cgi-bin/htmldoc.exe?CISOROOT=/ lctext&CISOPTR=1564.
30. Id. at 43;
31. Miller, supra note 17 at 176.
32. Renker, supra note 2 at 7.
33. Miller, supra note 17 at 177.
34. Renker, supra note 2 at 9.
35. Miller, supra note 17 at 177.
36. Renker, supra note 2 at 9.
37. During the early part of the twentieth century, Edward Curtis provided a first-hand account of Makah whaling practices and noted that before a hunt "the whaler and his wife observe a long and exacting course of purification, which includes sexual continence and morning and evening baths at frequent intervals from October until the end of the whaling season . . . about the end of June" Edward Curtis, The North American Indian: Being a Series of Volimes Picturing and Describing Indians of the United States, the Dominion of Canada, and Alaska 20 vols. (Frederick W. Hodge, ed., 1911).
38. Reprinted 1970, cited by Renker, supra note 2 at 8. Renker continues by stating that when the crew was at sea, one of the duties of the wife of the chief whaler was to lie perfectly still. Failure to do so could result in an undersized whale being caught or the whale heading out to sea when harpooned rather than toward land.
39. Miller, supra note 17 at 185.
40. An alternative spelling - tumanos - is provided by Cote, supra note 13 at 42.
41. Miller, supra note 17 at 186.
42. Id. at 5.
43. Sepez, supra note 5 at 76.
44. Cote, supra note 13 at 42.
45. Renker, supra note 2 at 9.
46. Id.
47. Id.
48. Sepez, supra note 5 at 69.
49. Renker, supra note 2 at 9.
50. Cote, supra note 13 at 45.
51. Renker, supra note 2 at 9.
52. Miller, supra note 17 at 174.
53. Id.
54. Sepez, supra note 5 at 120.
55. Renker, supra note 2 at 17.
56. Id. at 18.
57. Id.
58. Miller, supra note 17 at 271.
59. Madonna Moss, Whale Hunt Honors Makah Way of Life, The Ecotone 4, at 4 (1999) available at http://www.uoregon.edu/~ecostudy/resources/ publications/ecotone/Web%20PDF%20Versions/Ecotone%20Fall%20%2799.pdf.
60. Jennifer Sepez, Treaty Rights and the Right to Culture: Native American Subsistence Issues in US Law, 14(2) Cultural Dynamics 143, 151 (2002). The recent study by Jennifer Sepez demonstrated that many contemporary Makah adhere to the traditions of old. In describing part of his hunting ritual one Makah commented, "usually there's a little saying you say as you're pulling the trigger. You say, 'Forgive me, I must take you.' They're always saying it. And if you say it right, or you just remember to say that every time, the deer or whatever you're going after will sit still."
61. Miller, supra note 17 at 272.
62. Renker, supra note 2 at 10. However, given the variety in the Makah subsistence diet, it is unlikely that this was the case, although it does appear clear that gray whales provided an important food source.
63. Sepez, supra note 5 at 81.
64. Id. at 85, Figure 1.
65. Id. at 85-86.
66. Id. at 82.
67. Id.
68. Id. at 129.
69. See also Renker, supra note 2 at 11 and 19. Renker found that 93.3 percent of those surveyed thought the tribe should continue to hunt whales, with 85.5 and 73.4 percent, respectively, wanting their households to have whale meat and whale oil.
70. Id. at 18.
71. In a 1988 study, Renker notes how 80.4 percent of the households receive fish which someone else caught; 85.3 percent of households give fish away to other tribal members; and 35.3 percent of households are given money or other goods by a fisherman when there is a good season.
72. Sepez, supra note 5 at 120. The total yield of the whale is generally agreed upon, although there is some discrepancy between the ratio of meat to blubber. At the time of landing the whaling captain estimated that there were 2,000 pounds of meat and 5,000 pounds of blubber, whereas NMFS put the figures at 3,000 and 4,000, respectively.
73. Id.
74. Renker, supra note 2 at 18 (citations omitted).
75. Sepez, supra note 5 at 130.
76. Id. at 132.
77. Renker supra note 2 at 22.
78. Moreover, Indians of the Pacific Northwest have the highest rate of digestive illnesses of all American Indians.
79. Id. More generally, American Indians have a statistically higher chance of succumbing to a number of food-related illnesses and have the highest rates of diabetes in the world.
80. Id. at 21. Renker's data are based on studies by the Indian Health Service and the National Institutes of Health (citations omitted).
81. Id. at 22-23.
82. Renker also notes that research conducted with the Pima Indians of Arizona has demonstrated that isolated populations in particular environments can evolve a genetic code that is uniquely suited to the food resources of that environment. This genetic code regulates the biological processes in the body that produce proteins, fatty acids and enzymes as well as thousands of other chemicals. This distinctiveness may help explain why the members of the Pima tribe who have adopted a Western diet are more likely to succumb to illnesses such as diabetes and obesity.
83. Id. at 22. Clinical studies also have suggested that there may be a link between the lack of essential fatty acids in the Makah diet and the high levels of Attention Deficit Disorder, Attention Deficit Hyperactive Disorder, reading disabilities, and dyslexia in Makah children, which approach a rate almost double that of the general population.
84. Id.
85. Sepez, supra note 5 at 133. Sepez notes how many tribal members believe that local foods contain fewer contaminants than those produced commercially.
86. United States v. Winans, 198 U.S. 371, 381 (1905).
87. Felix S. Cohen, Handbook of Federal Indian Law 122-23 (1942).
88. Charles F. Wilkinson: American Indians, Time and the Law: Native Societies In a Modern Constitutional Democracy 14 (1987).
89. Renker, supra note 2, quoting George Gibbs, Treaty of Neah Bay [Transcript of Journal Proceedings]. (U.S. National Archives, Records Relating to the Negotiation of Ratified and Unratified Treaties with Various Tribes of Indians, 1801-1869; microcopy No. T-494, roll 5 (1855).
90. See also United States v. Washington, 730 F.2d 1314, 1315 (9th Cir. 1984).
91. Governor Stevens, the U.S. representative who negotiated the Treaty of Neah Bay, "found the Makah not much concerned about their land, apart from village sites, burial sites, and certain other locations, but greatly concerned about their marine hunting and fishing rights." United States v. Washington, 384 F. Supp. 312, 363 (W.D. WA 1974), aff 'd, 520 F.2d 676 ((9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976) (hereinafter, the 'Boldt decision').
92. Id.
93. Id.
94. See also Miller, supra note 17 at 195-199.
95. 12 Stat. 939, 940 (1855; emphasis added).
96. Anderson v. Evans, 314 F.3d 1006, 1012 (9th Cir. 2002), rehearing en banc denied and opinion amended, 350 F.3d 815, 825 (9th Cir. 2003), 2nd request for rehearing en banc denied and second amended opinion, 371 F.3d 475, 483 (9th Cir. 2004). Page citations herein will be to the second amended opinion unless our purpose is to highlight the procedural history of the case or a change in the reasoning of the panel over the course of its opinions. In the second amended opinion, the court rejected the U.S. and the Makah's contention that the case was moot because the opinion had been issued after the whaling quota at issue had expired. 371 F.3d at 502, fn. 27.
97. See e.g. Treaty with the Yakimas, 12 Stat. 951, 953 (1855) (securing the "right" of fishing and "privilege" of hunting);
98. Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658 (1979).
99. 371 F.3d at 483.
100. Id.
101. Metcalf v. Daley, 214 F.3d 1135, 1137 (9th Cir. 2000).
102. See also Sepez, supra note 5 at 70.
103. 371 F.3d at 483.
104. Sepez, supra note 5 at 37-39;
105. Renker, supra note 2 at 12-15.
106. For further amplification of the ideas expressed in this section, see Jeremy Firestone, Jonathan Lilley, and Isabel Torres de Noronha, Cultural Diversity, Human Rights and the Emergence of Indigenous Peoples in International and Comparative Environmental Law, 20(2): 219-292, American University International Law Review (2004).
107. Benjamin J. Richardson, Indigenous Peoples, International Law and Sustainability, RECIEL 10(1): 1-12, 1 (2001).
108. Id. Richardson notes how for indigenous peoples, environmental justice "may be interpreted as requiring, at a minimum; the recognition of ownership of land and other resources traditionally utilised; allowing for their effective participation in resource management decision-making; and securing an equitable share of the benefits arising from the use of environmental resources."
109. Id. at 2. Richardson comments how the Maori people in New Zealand, Australia's aboriginal communities, and the Saami people of Scandinavia have all had success in reasserting their traditional rights to hunt and fish.
110. See also discussion of the United Nations Charter infra note 22.
111. 60 U.N.T.S. 195 (1966).
112. International Covenant on Economic, Social and Cultural Rights (ICESR), Part I, art. 1, 993 U.N.T.S. 3 (1966). The United States has signed but not yet ratified the ICESR.
113. International Covenant on Civil and Political Rights (ICCPR), art. 27, 999 U.N.T.S. 171 (1966).
114. The United States ratified the ICCPR in 1992, albeit with a number of reservations; see Selected Human Rights Treaties and U.S. Status for a list of the reservations, available at http://academic.udayton.edu/ race/06hrights/UnitedNations/USStatus.htm (last accessed October 10, 2003).
115. Declaration of the UN Conference on Environment and Development, Rio de Janeiro, 3-14 June 1992, UN Doc. A/CONF.151/5/Rev.1 (1992), Principle 22.
116. See also Agenda 21, Ch. 26, Recognising and Strengthening the Role of Indigenous People and Their Communities, available at http://www.unep.org/Documents/Default.asp?DocumentID=52.
117. E/CN.4/Sub.2/1994/2/Add.1. This draft, initially developed by experts and indigenous organizations, is being negotiated by an intergovernmental, intersessional UN working group in 2004, with the aim of having it adopted by the United Nations General Assembly in 2005.
118. Id. at art 12.
119. Id. at arts. 21, and 25.
120. William Bradford, Save the Whales, Save the Makah: Finding Negotiated Solutions to Ethnodevelopmental Disputes in the New International Economic Order, 13 ST. Thomas L. Rev 155, 212, fns. 232 and 235 (2000).
121. Richardson, supra note 86 at 3.
122. Convention between the United States, Great Britain, Russia, and Japan for the Preservation and Protection of Fur Seals (7 July 1911) (no longer in force), 37 Stat. 1542 available at http://fletcher.tufts.edu/ multi/sealtreaty.html.
123. International Convention for the Regulation of Whaling (ICRW) 161 U.N.T.S .72, Dec. 2, 1946, 62 Stat. 1716. The IWC website is found at http://www.iwcoffice.org/. For a comprehensive history of the global effort to conserve and regulate the hunting of great whales, see Patricia Birnie, International Regulation of Whaling: From Conservation of Whaling Toconservation of Whales and Regulation of Whale-Watching 2 vols. (1985).
124. For a comprehensive history of the global effort to conserve and regulate the hunting of great whales, see Patricia Birnie, International Regulation of Whaling: From Conservation of Whaling Toconservation of Whales and Regulation of Whale-Watching 2 vols. (1985).
125. For a detailed history of the ASW exemption see Alexander Gillespie, Aboriginal Subsistence Whaling: A Critique of the Inter-Relationship between International Law and International Whaling Commission, 12 COLO. J. Int'l Envtl. L & Pol'y 77 (2001).
126. Richardson, supra note 86 at 5. Richardson notes how the two most important concepts of the Charter with regard to indigenous peoples' rights are Articles 1(2) (which, in pertinent part, addresses the need to show respect for the principles of equal rights and self-determination of people) and 1(3) (which, in pertinent part, discusses the issue of human rights and fundamental freedoms for all, without discrimination as to race, sex, language or religion).
127. Repr. 31 I.L.M.(1992) 818. See http://www.biodiv.org/ (last accessed on October 12, 2003);
128. See also Patricia Birnie & Alan Boyle, International Law and the Environment 568 (2002).
129. Resolution E/RES/2000/22, available at http://www.un.org/esa/socdev/pfii/ mandate.htm.
130. See e.g., World Bank Operational Policies, Involuntary Resettlement Policy (O.P. 4.12), available at http://wbln0018.worldbank.org/ Institutional/Manuals/OpManual.nsf/tocall/ CA2D01A4D1BDF58085256B19008197F6?OpenDocument (Revised April 2004);
131. World Bank Operational Policies, Draft Operational Policy on Indigenous Peoples (OP 4.10), available at http://lnweb18.worldbank.org/ESSD/ sdvext.nsf/63ByDocName/PoliciesDraftOP410March232001 (March 23, 2001);
132. World Bank Operational Directives, Indigenous Peoples (OD 4.20) available at http://wbln0018.worldbank.org/Institutional/Manuals/ OpManual.nsf/ODirw/0F7D6F3F04DD70398525672C007D08ED?Open-Document (September 1991);
133. World Bank Operational Policies, Environmental Assessment (O.P. 4.01), available at http://wbln0018.worldbank.org/Institutional/Manuals/ OpManual.nsf/OPolw/9367A2A9D9DAEED38525672C007D0972?OpenDocument (January 15, 1999).
134. Arctic Council, available at http://www.arctic-council.org (accessed on October 11, 2003).
135. For an elaboration on role of indigenous peoples in the CBD, Permanent Forum, World Bank, and the Arctic Council and more generally in international environmental law see Firestone, et al., Cultural Diversity, Human Rights, and the Emergence of Indigenous Peoples supra note 86.
136. Rio Declaration, Principle 22.
137. Draft Declaration, Arts. 4 and 19. See also id at Art. 20.
138. International Convention for the Regulation of Whaling (ICRW) 161 U.N.T.S. 72, Dec. 2, 1946, 62 Stat. 1716. The IWC website is found at http://www.iwcoffice.org/.
139. ICRW, art. III.1.
140. Id. at arts. III.4. and V.
141. Id.at art. I.1.
142. ICRW Schedule, Section III, paragraph 10. Under the ICRW's objection procedure, ICRW, Art. V.III., Norway, despite being an ICRW member, has continued to engage in commercial whaling. See footnote to ICRW Schedule Section III, paragraph 10, available at http://www.iw coffice.org/ Schedule.htm#FOOTPARA10e.
143. Japan conducts "scientific research" whaling pursuant to Article VIII of the ICRW. On August 6, 2003, Iceland announced its intention to resume scientific research whaling. See http://news.bbc.co.uk/2/hi/science/nature/3128863.stm (accessed on August 11, 2003) and on August 18, 2003, harpooned a whale. See http://www.nytimes.com/2003/08/19/international/europe/ 19BRIE1.html?ex=1062385274&ei=1&en=c50db361965cec7a.
144. 16 U.S.C. § 916-9161, 64 Stat. 421 (1950).
145. 16 U.S.C. §916c(a)(1).
146. 50 C.F.R. §230.1.
147. Convention between the United States, Great Britain, Russia and Japan for the Preservation and Protection of Fur Seals, (July 7, 1911) (no longer in force), 37 Stat. 1542 available at http://fletcher.tufts.edu/ multi/sealtreaty.html. Art. IV provides that: "It is further agreed that the provisions of this Convention shall not apply to Indians, Ainos, Aleuts, or other aborigines dwelling on the coast of the waters mentioned in Article I, who carry on pelagic sealing in canoes not transported by or used in connection with other vessels, and propelled entirely by oars, paddles, or sails, and manned by not more than five persons each, in the way hitherto practiced and without the use of firearms; provided that such aborigines are not in the employment of other persons or under contract to deliver the skins to any person."
148. Convention for the Regulation of Whaling, Sept. 24, 1931, I.N.T.S. CLU. No. 3586, Art. 3, available at http://www.oceanlaw.net/texts/ whales31.htm. There were 21 signatory nations to the 1931 Convention (also known as the 1935 Convention, as it did not become effective until 1935)
149. See also National Task Force on Whaling "A Universal Metaphor: Australia's Opposition to Commercial Whaling, Ch. 3" available at http:/ /ea.gov.au/coasts/species/cetaceans/whaling/index.html.
150. ICRW Preamble. See also The 1937 International Agreement for the Regulation of Whaling, June 8, 1937, 52 Stat. 1460, Ts No. 933, 190 LNTS 79, Article 4 (forbidding, in pertinent part, the taking or killing of gray whales), available at http://www.oceanlaw.net/texts/whales37.htm. Only nine nations were signatories to the 1937 Convention;
151. National Task Force on Whaling, supra note 128.
152. ICRW at art. I.1.
153. However, the Final Act of the Washington Conference that led to the ICRW suggests that provision was included at the behest of the Soviet Union of behalf of the aborigines of Chukotsk and Korjaksk areas within the Soviet Union. Final Act of the International Whaling Conference (December 2, 1946), art. X, reprinted in Birnie, International Regulation of Whaling Vol. 2, supra note 103 at, 695, 697.
154. ICRW Schedule, paragraph 2. The ICRW, including the Schedule as ratified and as it was when that convention was first binding international law, are reproduced in Proclamation of President Harry S. Truman, 62 Stat. 1716 1723 (November 10, 1948).
155. Gillespie, supra note 103 at 80.
156. G.P. Donovan, International Whaling Commission, International Whaling
157. Report of the Thirty-Fifth Meeting of the International Commission on Whaling 38, app. III, Office of the Commission (1983).
158. For the purposes of Alaska natives, Congress has defined "subsistence uses" to mean the "customary and traditional uses by rural Alaska residents of wild, renewable resources for direct personal or family consumption as food, shelter, fuel, clothing, tools, or transportation; for the making and selling of handicraft articles out of nonedible byproducts of fish and wildlife resources taken for personal or family consumption; for barter, or sharing for personal or family consumption; and for customary trade." Alaska National Interest Lands Conservation Act (ANILCA), 16 U.S.C. §3113.
159. IWC Thirty-Fifth Meeting Report, supra note 135.
160. (emphasis added). The U.S. State Department uses a slightly different formulation: ASW is "whaling which is conducted by native whalers with a long history of whaling for cultural and nutritional purposes." U.S. Department of State, U.S. International Whaling Policy 9 (1995) quoted in William Bradford,
161. supra note 100 at 181, fn. 99 (2000).
162. Curiously, according to Anderson v. Evans, 371F.3d at 496, the United States represented that the IWC adopted the definition espoused by the ASW ad hoc workgroup, supra at note 134, even though that definition requires a "continuing traditional dependence" on whaling.
163. Report of the Aboriginal Subsistence Whaling Sub-Committee (hereinafter ASW Report), 55-Rep3.doc, at 9. (June 15, 2003) (emphasis added), available at http://www.iwcoffice.org/2003%20Documents/Reports/ 55-Rep3(AS).pdf, citing Rep. Int. Whal. Commn, 48: 31.
164. 16 U.S.C. § 1531 et. seq.
165. 16 U.S.C. § 1361 et seq. Under the MMPA, marine mammals receive some degree of protection irrespective of the health of the population of a given marine mammal stock. "Depleted" marine mammals stocks, which by definition include those that are listed as threatened or endangered under the ESA, receive heightened protection. 16 U.S.C. § 1362(1).
166. Metcalf v. Daley, 214 F.3d 1135, 1138 (9th Cir. 2000).
167. But cf. Joe Roman & Stephen R. Palumbi, Whales Before Whaling in the North Atlantic, 301 SCIENCE 508-510, 510 (2003), available at http://www.sciencemag.org/cgi/reprint/301/5632/508.pdf (July 25, 2003) (finding that the "genetic diversity of humpback, minke, and fin whales is inconsistent with the low historical population sizes currently assumed."). The authors do note, however, that genetic and historic estimates "could both be true" if whale populations were "unusually low" when commercial whaling commenced. Id. at 509.
168. Id. at 509.
169. 214 F.3d. at 1138.
170. See also 58 FED. REG. 3121 (1993).
171. For a discussion of the current status of the stock see infra note 158. Because the "estimated annual level of human-caused mortality and serious injury" is less than the potential biological removal (PBR) level, NMFS does not classify the stock as a "strategic stock" under the MMPA. NMFS, 2002 Stock Assessment Reports,
172. Gray Whale (Eschrichtius robustus), Eastern North Pacific Stock, Stock 141, p. 6, available at http://www.nmfs.noaa.gov/prot res/PR2/ StockAssessmentProgram/Cetaceans/Gray_Whale_(Eastern_N._Pacific)/ AK02graywhale E.N.Pacific.PDF (March 20, 2002).
173. See also 16 USC 1362(19).
174. National Marine Fisheries Service, Endangered and Threatened Wildlife and Plants: 90-Day Finding for a Petition To List Eastern North Pacific Gray Whales as Threatened or Endangered Under the Endangered Species Act (ESA), 66 FED. REG. 32305, 32309 (June 14, 2001).
175. 66 FED. REG. at 32310.
176. Metcalf v. Daley, 214 F.3d at 1138.
177. Id.
178. Id. at 1139, quoting Agreement between Makah and NOAA (March 22, 1996).
179. Id.
180. In 1949, Congress enacted that Whaling Convention Act, 16 U.S.C. § 916 et seq., to implement the ICRW.
181. NOAA and NMFS have promulgated implementing regulations at 50 C.F.R. Part 230.
182. Japan's attempt to win authorization for such local, albeit commercial, whaling was rejected at the 55th Annual Meeting of the IWC. IWC, Final Press Release (2003), available at http://www.iwcoffice.org/ FinalPressRelease2003.htm. Japan, did however, persuade the IWC to adopt a resolution at the 2004 Annual Meeting, reaffirming the IWC's commitment to "work expeditiously to alleviate the continued difficulties caused by the cessation of minke whaling to the communities of Abashiri, Ayukawa, Wadaura and Taiji." IWC, Resolution on Japanese Community-Based Whaling, Res. 2004-2 (2004), available at http://www.iwcoffice.org/meetings/resolution2004.htm#2.
183. Anderson v. Evans, 371 F.3d at 484.
184. The NGOs are Australians for Animals and BEACH Marine Protection. 214 F.3d. at 1139.
185. 42 U.S.C. §4332.
186. 214 F.3d at 1139.
187. Id.. at 1139-40.
188. Id. at 1140.
189. National Marine Fisheries Service, Whaling Provisions: Aboriginal Subsistence Quotas, 63 FED. REG. 16701, 16703 (April 6, 1998).
190. "Last year, the Committee agreed that a take of up to 463 whales per year is sustainable for at least the medium term (∼30 years) and no information was presented this year to change that advice." ASW Report, supra note 138 at 4.
191. See also IWC, Report of the Scientific Committee, 56th Annual Meeting, p. 28 (2004), available at www.iwcoffice.org/_documents/sci_com/ SCRepFiles2004/56SCrep.pdf [after reviewing the most recent survey information and calf estimates, concluded that "a take of up to 463 whales per year is sustainable for at least the medium term (∼30 years)"]. In an effort to improve management of whales stocks, the Scientific Committee has begun move from more ad hoc management of whales stocks subject to aboriginal subsistence whaling to a more scientific approach. Of particular pertinence here, is the Scientific Committee's effort to develop a Strike Limit Algorithm (SLA) for the eastern north Pacific gray whale.
192. Id. at 17-21.
193. NMFS best estimate of the population size of the stock is 26,635 animals (with a minimum population estimate of 24,477 and the potential biological removal level of 575 animals, or even higher than that estimated by the ASW Committee). 2002 Gray Whale Stock Assessment Report, supra note 143 at 137-38. "Moreover, the annual subsistence take averaged 97 whales during the 5-year period from 1996-2000. This level of take is well below the 1968-93 average of 159 whales per year (IWC 1995b), during which time the population size increased."
194. Id. at 141.
195. Gillespie, supra note 103 at 88.
196. "The taking of gray whales from the Eastern stock in the North Pacific is permitted, but only by aborigines or a Contracting Government on behalf of aborigines, and then only when the meat and products of such whales are to be used exclusively for local consumption by the aborigines whose traditional aboriginal subsistence and cultural needs have been recognised." ICRW Schedule, Section III, Paragraph 13.b (2). Presently, the IWC has established a quota for the eastern stock of the North Pacific gray whale for 2003-2007 of 620 whales, with the total also not to exceed 140 whales in any given year. Id., available at http://www.iwcoffice.org/Schedule.htm#CAPTUREIII (last visited August 11, 2003).
197. See Gillespie, supra note 103 at 88-89.
198. 63 Fed. Reg. 16, 701 (1998).
199. For a more detailed analysis of the NEPA issue, see Jeremy Firestone & Jonathan Lilley, An Endangered Species: Aboriginal Whaling and the Right to Self-Determination and Cultural Heritage in a National and International Context, 34 Env'tl L. Rep. (Env'tl l. Inst.) 10763-10787 (2004).
200. Alex Dark, The Makah Whale Hunt (1999), National Council for Science and the Environment, http://www.cnie.org/NAE/cases/makah/m3.html (accessed on August 7, 2003). The economic interest of some organizations is clear. For example, the State of Washington whale-watching industry is an $8-$10 million industry. Id. Nor is whale-watching benign. Motorized vessel traffic can lead to collisions with whales, alter whale migration pathways and swim velocities, disrupt whale behavior as a result of noise, and diminish the experience of others seeking solitude and contribute air and water pollution.
201. See e.g. Gisela Heckel, Ileana Espejel, & David W. Fischer, Issue Definition and Planning for Whalewatching Management Strategies in Ensenada, Mexico, 31 Coastal Management, 277-296 (2003);
202. National Parks and Conservation Association v. Babbitt, 241 F.3d 722 (9th Cir. 2001);
203. National Park Service, Final Environmental Impact Statement, Vessel Quota and Operating Requirements, Glacier Bay National Park and Preserve, Alaska (October 2003), available at http://www.glba.ene.com/ feis2003.htm.
204. "Ironically, in 1999, protestor boats hit two gray whales and possibly injured them." Miller, supra note 17 at 266.
205. Id. See also WWF, Whales, Whaling & The International Whaling Commission (June 2003) available at http://www.panda.org/downloads/species/wwfiwcposition2003final2.pdf ("WWF recognises the human need for aboriginal subsistence whaling where it is carried out by aboriginal, indigenous, or native peoples with long-standing, strong social or cultural ties to whaling; where products are for local consumption only; and with a precautionary management scheme in place to ensure such activities are sustainable and do not threaten whale populations."
206. For Sierra Club's and Greenpeace's, positions of aboriginal whaling, see http://www.sierraclub.org/policy/conservation/marinemammals.asp (last visited October 21, 2004);
207. http://www.sierraclub.org/marine/mammals/whaling.asp (last visited October 21, 2004);
208. and http://whales.greenpeace.org/whaling/subsistence.html (accessed on August 11, 2003).
209. Supra note 141. Representative Jack Metcalf, the lead plaintiff, has long opposed tribal treaty rights and referred to such rights as 'special rights' Dark, The Makah Whale Hunt, http://www.cnie.org/NAE/ cases/makah/m3.html (last visited August 7, 2003).
210. 214 F.3d at 1143-44.
211. Anderson v. Evans, 371 F.3d at 485.
212. Id. One, among many reasons that Makah whaling provoked controversy, is that the hunt location includes ocean space within the boundaries of the Olympic Coast National Marine Sanctuary (OCNMS). The OCNMS runs from the U.S./Canadian Border to the Copalis River 135 miles south and extends on average 30 miles from shore: http://www.sanctuaries.nos.noaa.gov/oms/ omsolympic/omsolympic.html (accessed on August 5, 2003). Although the use of the word "sanctuary" suggests that Congress and NOAA have created a protected zone for living marine resources, in actual fact, multiple uses of the OCNMS are encouraged, including recreational and commercial uses.
213. 16 U.S.C. § 1431(b)(6); http://www.sanctuaries.nos.noaa.gov/oms/ omsolympic/omsolympicmanag.html#Mult (accessed on August 5, 2003).
214. Moreover, although the taking of marine mammals is generally prohibited within the OCNMS, NOAA explicitly authorized takings by Indian tribes that have treaty rights provided that any such right is "exercised in accordance with the MMPA, [and] ESA... to the extent that they apply." 5 C.F.R. §922.152(5).
215. Anderson v. Evans, 371 F.3d at 485.
216. The court appears to be using the term "take" in this context to mean "landed." Both the MMPA ["take" means to "harass, hunt capture or kill" or attempt the same. 16 USC 1362(13)] and the ESA ["take" means to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 USC 1532(19)] define "take" considerably broader.
217. 371 F.3d at 485.
218. 66 Fed. Reg. 64,378 (December 13, 2001).
219. 371 F.3d at 486.
220. 42 U.S.C. §4332(2)(C).
221. 371 F.3d at 489.
222. Id. at 489-90.
223. Byrelying on the difference in opinion between government scientists and those employed by the plaintiffs as its basis for "uncertainty, the court appears to have substituted its judgment for that of NOAA's, as the "decision to prepare an EA rather than an EIS is reviewed under the APA's arbitrary and capricious standard." Wetlands Action Network v. Army Corps of Engineers, 222 F.3d 1105, 1116 (9th Cir. 2000).
224. See also, Anderson 371 F.3d at 489 (stating that the court "must defer to the expertise of the agency in evaluating the scientific evidence.").
225. Id. at 493.
226. See also 40 C.F.R. §1508.27(b)(6) (requiring consideration of the precedential effects of a proposed action). There are 14 bands (tribes) in western Canada (for the most part on Vancouver Island), all of which are part of the Nuu-chah-nulth people, each of which may have an interest in whaling.
227. Alma Soongi Beck, Comment: The Makah's Decision to Reinstate Whaling: When Conservationists Clash with Native Americans over an Ancient Hunting Tradition, 11 J. ENVTL L. & LITIG. 359, 399 (1996).
228. However, the total population of the Nuu-chah-nulth people is only 7,517 so that even in the event that Canada recognizes such a right in the context of treaty negotiations, which are presently ongoing with the Nuu-chah-nulth, a limited hunt would not upset the sustainability of eastern North Pacific gray whale population. http://www.gov.bc.ca/tno/ negotiation/process/six_stage_process.Htm#stage_4 (accessed on November 20, 2003);
229. Indian Affairs and Northern Development, Registered Indian Population by Sex and Residence 2001, http://www.ainc-inac.gc.ca/pr/sts/rip/rip e.pdf. It should be noted that Canada is not a member of the IWC. While two Washington state tribes also have expressed an interest in whaling - the Quileute (approximate population of 500) and the Quinalt (2,200) - their historical connection to whaling is much less pronounced than that of the Makah Tribe's, and thus, to the extent either gains a quota, that quota presumably would be smaller than the Makah quota.
230. Beck at 400. Finally, the IWC has had little difficulty distinguishing small-scale, community-based coastal whaling from aboriginal indigenous whaling such as that engaged in by the Makah in that the former is for commercial purposes while the latter is not. See Gillespie, supra note 103 at 77, 84-85.
231. Anderson, 371 F.3d at 501.
232. Id. at 501 and fn. 26.
233. 622 F.2d.1010, 1015 (9th Cir 1980).
234. 371 F.3d at 501.
235. Id. at 500. As for the Treaty of Neah Bay, Judge Gould, construed the Makah Tribe's reservation of hunting rights "in common with all citizens of the United States," to support the inference that "the conservation purpose of the MMPA requires it be applied to the Tribe."
236. Id. In Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 684-85 (1979) the Supreme Court discussed what "in common with" meant. After a lengthy analysis, it concluded by stating that both tribal fishers and citizens of Washington State "have a right, secured by treaty, to take a fair share of the available fish. That, we think, is what the parties to the treaty intended when they secured to the Indians the right of taking fish in common with other citizens." In other words, "neither party may deprive the other of a 'fair share' of the runs."
237. Id. at 684. Judge Gould noted that, while "the 'fair share' formula might be read to suggest that the Tribe's treaty right gives the Tribe a right to a 'fair share' of whales that are to be taken, ... [it] does not provide a ready answer in this case, which involves now-protected marine mammals rather than salmon and other fish available, within limits, for fishing."
238. Anderson, 371 F.3d at 500. More specifically, he concluded, "[T]he Makah cannot, consistent with the plain terms of the treaty, hunt whales without regard to processes in place and designed to advance conservation values by preserving marine mammals or ... whale watching, scientific study, and other non-consumptive uses.... [T]o the extent there is a "fair share" of marine mammal takes by the Tribe, the proper scope of such a share must be considered in light of the MMPA through its permit or waiver process.... The procedural safeguards and conservation principles of the MMPA ensure that marine mammals like the gray whale can be sustained as a resource for the benefit of the Tribe and others."
239. Id. at 500-01. The fact that United States decided to forego a "fair share" on behalf of its non-Indian citizens (as evidenced by the enactment of the MMPA and the agreement to be bound by the IWC commercial whaling moratorium) cannot serve to deprive the Makah of its treaty right to a "fair share" of gray whales absent the treaty being modified. If treaty tribes in the Pacific Northwest decided through tribal ordinances to forego fishing, one would not expect, for example, the Ninth Circuit to enjoin Washington state commercial fisherman solely on that basis. So it should be with the Makah.
240. 16 U.S.C. §1372(a)(2).
241. Anderson, 371 F.3d at 494-497.
242. ICRW Schedule, paragraph 2. See Proclamation of President Harry S. Truman, 62 Stat. 1716 1723 (November 10, 1948).
243. BIRNIE, supra note 103, Vol. 1, at 190.
244. See also SCRW, art. I.1.
245. ICRW Schedule, Section III, paragraph 13(b)(2), available at http://www.iwcoffice.org/Schedule.htm#CAPTUREIII. While the schedule does not identify home countries by name for other aboriginal subsistence rights (e.g., the West Greenland stock of minke whales, id, the IWC's webpage devoted to aboriginal catch limits, http://www.iwcoffice.org/ Catches.htm#Aboriginal (last accessed July 31, 2003), it does mention the home country by name, and in one instance identifies more than one aboriginal group - "Alaskan Eskimos and native peoples of Chukotka" (Russian Federation) - as the quota recipients.
246. The Russian Federation has advanced the proposition within the IWC that the disparity in treatment violates "human rights and discriminates against the native peoples of Chukotka," and as a consequence should be deleted from the Schedule. IWC, Report of the Subcommittee on Aboriginal Subsistence Whaling, IWC/56/Rep 3, p. 9 (2004), available at http://www.iwcoffice.org/_documents/meetings/reports/56RepAboSub.pdf.
247. See also IWC, Chair's Report, 55th Annual Meeting, p. 17 (2003) available at http://www.iwcoffice.org/_documents/meetings/reports/ ChairsReport2003forWeb.pdf. Although the discussion in subcommittee suggested general support for the proposition, consensus has yet to be reached.
248. ASW 56th Annual Meeting Sub-Committee Report, supra this note, at 10.
249. Letter from Dr. Nicky Grandy, IWC Secretary (on behalf of the Chair of the IWC) to Mr. C.W. Bill Young, Congress of the United States, December 12, 2000, appended in Appendix 10.1, Responses to Comments on the January 12, 2001, Draft EA, Environmental Assessment on Issuing a Quota to the Makah Indian Tribe for a Subsistence Hunt on Gray Whales for the Years 2001 and 2002, available at http://www.nmfs.noaa.gov/pr/PR2/ Conservation_and_Recovery_Program/makah_EA.html.
250. See also, ICRW, art. 5, ¶2(c) (providing that the IWC shall not "allocate specific quotas to any factory or ship or land station or to any group of factory ships or land stations"). As noted earlier, the initial Schedule to the ICRW did not identify by name those aboriginal people who were entitled to the gray whale quota. The current practice in that regard is wholly consistent with historic practice.
251. See also, e.g., 1983 Schedule as Amended, ¶13, reprinted in BIRNIE, supra note 103, Vol. 2 at 707, 717.
252. Moreover, at the time the gray whale quota was considered by the IWC, the United States and the Russian Federation "circulated a written explanation and delivered oral statements demonstrating the [underlying] basis for" quota. National Oceanic and Atmospheric Administration, Notice of Aboriginal Subsistence Whaling Quotas, 63 Fed. Reg. 16701-04, 16703 (April 6, 1998).
253. Grandy Letter, supra note 192 (emphasis in original). Moreover, international environmental law would suggest that it is the coastal state - the U.S.- and not the relevant intergovernmental organization - in this instance the IWC - that has the power to recognize aboriginal subsistence needs. Indeed, as recognized by Principle 21 of the Stockholm Declaration of the United Nations Conference on the Human Environment (1972), "States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction (emphasis added).
254. See also Principle 2 of the 1992 Rio Declaration on Environment and Development (same); 2002 Johannesburg Declaration on Sustainable Development, ¶8 (reaffirming RIO principles); 2002 World Summit on Sustainable Development (WSSD) Plan of Implementation, ¶6 ("each country has the primary responsibility for its own sustainable development and poverty eradication and the role of national policies and development strategies cannot be overemphazized...);
255. U.N. Convention on the Law of the Sea (LOS), arts. 56 and 61(coastal states have "sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living... [and] shall determine the allowable catch of the living resources").
256. But see 50 C.F.R. §230.1 (suggesting that only ASW that is "allowed" by IWC will be permitted under the Whaling Convention Act). Cf. LOS, art. 65 ("States shall cooperate with a view to the conservation of marine mammals and in the case of cetaceans shall in particular work through the appropriate international organizations for their conservation, management and study."). It should be noted that the U.S. has yet to ratify the LOS.
257. 16 U.S.C. § 916-916l.
258. 50 C.F.R. §230.1
259. See also 50 C.F.R. §230.2-230.8.
260. For a more detailed discussion of conservation necessity and treaty abrogation, see Firestone and Lilley, An Endangered Species, supra note 163.
261. Puyallup Tribe v. Dept. of Game (Puyallup I), 391 U.S. 392, 398 (1968).
262. See United States v. Eberhardt, 789 F.3d 1354, 1361 (9th Cir. 1986).
263. 16 U.S.C. §1361(2).
264. 314 F.3d 1006 (9th Cir. 2002). On March 3, 2003, the Makah Indian Tribe filed for a petition for a Rehearing En Banc. On March 12, 2003, the United States filed a similar request. As noted earlier, that request was denied and the opinion amended on November 26, 2003, and a second request was denied and a second amended opinion issued on June 7, 2004.
265. 68 Feg. Reg. 10703-10704 (March 6, 2003).
266. "Unlike other persons applying for a permit or waiver under the MMPA, the Tribe may urge a treaty right to be considered in the NMFS's review. . ." 371at 501, n.26.
267. See also 16 U.S.C. §1371(a)(3) and (5).
268. Personal Communication with Cheri McCarty, NOAA-NMFS (October 29, 2004).
269. See Beck, supra note 179 at 394-398 [Noting that while some fear the implications of a decision in favour of Makah whaling on Japan's advocacy for small-type coastal whaling, such whaling is readily distinguishable as it has an economic component; has a history of only 50 years; and Japan has conceded that such whaling is not aboriginal and that the crews of the vessels involved would not be Ainu (native peoples of Japan)];
270. The Government of Japan, Small-Type Whaling In Japan's Coastal Seas, 2, TC/38/AS2, The 38th Annual Meeting of the IWC, Malmö, Sweden (1986), available at http://homepage2.nifty.com/jstwa/pdf/hardcover/HC_38th.pdf (acknowledging that, although whaling has a long history in Japan, small-type coastal whaling for minke whales commenced in 1933);
271. IWC, Chairman's Report of the Forty-First Annual Meeting, San Diego, June 12-16, 1989, Section 15, Small-Type Whaling, available at http://luna.pos.to/whale/iwc_chair89_15.html ("meat from these operations enters the commercial arena in a highly industrialised country");
272. Beck, supra note 179 at 399-400 (while concern has been raised over the precedent Makah whaling would set for other Pacific Northwest tribes, for many whaling was not central to their culture, and in any event, the total number of whales that might be taken would be small);
273. Id. at 389-390 (while some conservationists fear that the U.S. may be forced to compromise on other matters that come before the IWC, concerns are overstated).
274. Memorandum from Michael Tillman, Deputy Commissioner, Southwest Fisheries Center,NMFS(April 3, 1995), available at http://www.safepassing.org/govt/foia1_1.gif (accessed on August 11, 2003).
275. Notes from the discussion of treaty rights during the April 1995 Pacific Scientific Review Group meeting" and hand-addressed and faxed "To: MFT (Michael F. Tillman) From: RLB (Robert L. Brownell, NMFS Region 4) (April 27, 1995), available at http://www.safepassing.org/govt/ foia1_2.gif (accessed on August 11, 2003).
276. http://www.cnie.org/NAE/cases/makah/m5.html (citations omitted).
277. "We will abide by federal laws which prohibit commerce in whale meat. Our tribal law also prohibits any sale of whale meat or whale products, except for artefacts made by Makah carvers out of whale bone." Whaling Questions and Answers, http://www.makah.com/whalingfaqs.htm (accessed on August 7, 2003).
278. See also "Although our Treaty guaranteed a commercial right, we have agreed to limit ourselves to non-commercial whaling. We are bound by Federal Law and our own Tribal Law not to sell any whale meat. We have no plan to sell whale meat in the future. We also believe the Sea Shepherd [Conservation Society] is well aware of this but chooses to continue to accuse us of planning to sell whale meat... We are committed to this [whaling] because it is our connection to our Tribal culture and because it is a treaty right - not because we see the prospect of money. We are willing to risk our lives for no money at all. The only reward we will receive will be ... spiritual satisfaction." Keith Johnson, An Open Letter to the Public from the President of the Makah Whaling Commission (August 6, 1998) at pp. 2 and 6, available at http://www.cnie.org/NAE/docs/makaheditorial.html.
279. "Whale products taken pursuant to this management plan shall be used exclusively for local consumption and ceremonial purposes and may not be sold or offered for sale. No member may receive money for participation in whaling." Management Plan For Makah Treaty Gray Whale- Hunting For The Years 1999-2002, As Amended April 2001 (Hereinafter Makah Management Plan), Section VIII.A., page 9, available at http://www.nmfs.noaa.gov/pr/PR2/Conservation_and_Recovery_Program/ App%2010.3%20%20MAKAHPLAN.pdf (May 30, 2001).
280. Letter from Hubert Markishtum (Chair, Makah Tribal Council) to National Marine Fisheries Service, May 5, 1995.
281. Id..
282. Id.
283. See http://www.cnie.org/NAE/cases/makah/m5.html, citing Sea Shepherd Conservation Society, "Makah Gray Whale Hunt to be First Step in Commercial Enterprise." Last access: 3/2/99.
284. Wilkinson, supra note 74 at 23 (discussing the task facing the judiciary given the opening of reservations to non-Indians).
285. Metcalf v. Daley, 214 F.3d at 1137. The demise of the California gray whale thus arose from causes unlike that of the Cook Inlet stock of Beluga Whale, which has been designated as 'depleted' under the MMPA. The most significant factor leading to the population decline of the Cook Inlet stock of Beluga Whale was Native Alaskan hunting.
286. See Cook Inlet Beluga Whale v. Daley, 156 F.Supp.2d 16 (D.D.C. 2001). The Beluga Whale, a small cetacean, is not regulated at the present time by the IWC. Despite its depleted status (and a belief on the part of at least some conservationists that it should be regulated under the Endangered Species Act, id,) and the absence of any treaty, an agreement was reached that allocates to indigenous Alaskans a maximum of six Beluga strikes over a four-year period, provided that any such strikes must be authorized by a comanagement agreement.
287. See In the Matter of: Proposed Regulation Governing the Taking of Cook Inlet, Alaska Beluga Whales by Alaska Natives, Docket No. 000922272-0272-01, Recommended Decision of Administrative Law Judge Parlen L. McKenna, March 29, 2002, available at http://www.fakr.noaa.gov/ protectedresources/whales/beluga/belugapr.htm;
288. Taking of Cook Inlet (CI), Alaska Stock of Beluga Whales by Alaska Natives, Final Environmental Impact Statement, available at http://www.fakr.noaa.gov/protectedresources/whales/beluga/eis2003/ final.pdf.
289. Miller, supra note 17 at 257;
290. Int'l Whaling Comm'n, Forty-Eighth Report of the International Whaling Commission 93-94.
291. http://www.cnie.org/NAE/cases/makah/me.html#18;
292. Beck, supra note 179, at 397.
293. Gillespie, supra note 103, at 115 (citations omitted).
294. Renker, supra note 2 at 15.
295. Id. at 14.
296. Id. at 15.
297. Sepez, supra note 5 at 70, citing Philip Drucker, The Northern and Central Nootkan Tribes, Bureau Of American Ethnology Bulletin 144 (1951).
298. Wilkinson, supra note 74 at 37-38.
299. Id. at 38-39, 164;
300. Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658(1979);
301. United States v. Washington, 384 F. Supp. 312, 358, 393 (W.D. Wash. 1974). The Makah's treaty fishing rights, among other tribes' treaty fishing rights were at issue in that litigation.
302. Jeremy Bentham, A Introduction To The Principles Of Morals And Legislation 311 (1789).
303. Tom Regan, The Case For Animal Rights, at 336 (1985).
304. See also Christopher Stone, Should Trees Have Standing? Towards Legal Rights For Natural Objects (1974) (ascribing legal rights to animals);
305. See also Anthony D'Amato and Sudhir K. Chopra, Whales: Their Emerging Right to Life, Am. J. Int'l L. 85(1) 21-62, 27 (1991). (arguing for an international legal entitlement to inure to whales and be recognized as opinio juris).
306. But see Bradford, supra note 100, at 212. ("If the primary lesson to be drawn from the ASW issue is that the international legal regime is content to place Makah collective rights at the mercy of NGOs and establish the privilege of charismatic animal over indigenous human species as the guiding principle for state-indigenous relations, the future of the indigenous rights regime is less than bleak.");
307. Sepez, Treaty Rights and the Right to Culture, supra note 51 at 154 (the Makah see the "right of humans and other animals to hunt for food" as "an inherent part of the order of nature in which the prey willingly succumbs to those hunters who demonstrate worthiness by their behavior." For the Makah, moral behavior is not displayed by recognizing a whale's right to life, but rather, in the honor and respect accorded the whale).
308. Peter Singer, Practical Ethics (2nd ed., 1993), at 64 (Suffering during the process of dying may work against the Makah to the extent that whales die more slowly or painfully than other sentient animals that the Makah would otherwise consume in the absence of whale meat and blubber.)
309. Id. at 120. The Makah Management Plan, supra note 210, does require the use of methods such as a high-powered rifle after the initial strike in order to minimize suffering. Yet, the time till death in the 1999 Makah hunt was still eight minutes. Environmental Assessment, supra note 16 at 50-51.
310. There also may be negative effects of the death of a whale on members of the that whale's social group. Singer, Practical Ethics at 120.
311. Id. at 305. Regan terms this the "Miniride Principle." This is not to suggest that Regan is pro-whaling. He long ago set forth his anti-whaling position.
312. See e.g., Dale Jamieson and Tom Regan, Whales are Not Cetacean Resources in Advances In Animal Welfare Science 1984, pp. 101-111 (M.W. Fox & L.D. Mickley eds., 1985).
313. Pounds of available meat were obtained from Sepez, supra note 5 at 120 and Appendix I.B.;
314. Holly Born, Alternative Meat Marketing, Livestock Technical Note, at 6 (May 2000) available at http://attra.ncat.org/attra-pub/PDF/Altmeat.pdf (last accessed July 31, 2003);
315. Alaska.com, Big-game Weights, http://www.alaska.com/akcom/trivia/trivcom/ bio/story/786154p-860512c.html (accessed on July 31, 2003); and http://www.askthemeatman.com/deer.htm (last accessed July 31, 2003).
316. For a description of the super-whale, see Arne Kalland, Whale Politics and Green Legitimacy, 9(6) Anthropology Today 3, 4 (1993). Kalland notes how by creating this concept of a super-whale, the diversity that exists among the various species is hidden. He continues by commenting that "we are told that 'the whale' is the largest animal on earth (this applies to the blue whale); that it has the largest brain on earth (the sperm whale); that it has a large brain-to-body-weight ratio (the bottlenose dolphin); that it sings nicely (the humpback whale); that it has nurseries (some dolphins); that it is friendly (the gray whale); that it is endangered (the blue and right whales); and so on. By talking about the whale, an image of a single whale possessing all these traits emerges (emphasis in original).
317. See, e.g., Howard Scott Schiffman, The Protection Of Whales In International Law: A Perspective For The Next Century, 22 Brooklyn J. Int'l L. 303, 320-323 (1996).
318. Volker Deecke, quoted in Tom Clarke, Seals Learn Killers' Clicks, Nature, November 14, 2002, available at http://www.nature.com/nsu/021111/ 021111-6.html.
319. See also V. B., Deecke, P. J. B., Slater & J. K. B. Ford, Selective Habituation Shapes Acoustic Predator Recognition in Harbour Seals. 420 Nature 171-173 (2002)(documenting the ability of harbour seals to distinguish between genetically distinct populations of killer whales: one which hunts seals; the other which hunts fish).
320. HSUS, Seals, http://www.hsus.org/ace/11735 (accessed on October 31, 2003).
321. Seal Conservation Society, Harbour Seal (Phoca vitulina), http://www.pinnipeds.org/species/harbour.htm (last visited October 31, 2003).
322. Id.
323. HSUS, Seals, supra note 256.
324. Singer began to set forth his view in a book review in The New York Review Of Books (April 5, 1973).
325. Singer does contend nonetheless that to the extent an animal such as a whale is self-aware and sees itself as "existing over time and thus ... aspire[s] to a longer life," it would be worse to kill a whale than another animal that lacks that capacity. Singer, supra note 250 at 125.
326. Peter Singer, The Animal Liberation Movement: Its Philosophy, Its Achievements, And Its Future, (1985) available at http://www.utilitarian.org/texts/alm.html (accessed on June 26, 2003). Compare Statement of Dr.William Aaron, Debate Continues over Commercial Whaling as International Whaling Commission Puts off Voting to Lift 12-Year Ban, National Public Radio, May 27, 1999 (transcript available from NPR), quoted in Bradford, supra note 100, 197, footnote 161 ("We do feel...that killing a whale is not very different than killing a human being. In fact, to some people it's much worse").
327. Anderson Plaintiff HSUS has large picture of a cow on its web homepage, with the motto: "Promoting the protection of all animals" See www.hsus.org (emphasis in original); (accessed on October 30, 2003).
328. Peter Singer, Animal Liberation (2nd ed., 1990), at 170.
329. Regan, supra note 240 at 342.
330. See e.g., Sepez, supra note 5 at 117-119 (suggesting that demand for seal products outstrips supply).
331. Makah Management Plan, supra note 210.
332. For the safety officer to authorize the rifleman to shoot, the barrel of the rifle needs to be above and within 30 feet of the whale and the rifleman's field of vision must be clear from "persons, vessels, buildings, vehicles, highways and other objects of structure that if hit by a rifle shot could cause injury or harm to human life." In addition, "[t]he whaling captain will suspend the hunt if the safety officer determines that visibility is less that 500 yards in any direction." Makah Management Plan, supra note 210 at 6.
333. For example, the Whale and Dolphin Conservation Society states "The use of such a rifle highlights the incongruity of the customary with the contemporary" available at WDCS Briefing on the Hunt of Gray Whale by the Makah, http://www.wdcs.org/dan/news.nsf/webnews/ 8A415D66D6E27ADA802568FB0063 443F (accessed on October 9, 2003). Breach Marine Protection voice similar concerns and suggest that the use of the rifles may not be limited to shooting only whales; indeed, they note that "The Makah Tribe of Western Washington will now use high-calibre military firearms against Gray whales during their planned 'ceremonial' whale hunt in the spring of 1998. Recent reports indicate that members of the Makah Tribal Whaling Commission have obtained at least 4 of these weapons. It is believed that the military-grade ordinance could also be used to intimidate or threaten National Marine Fisheries Service (NMFS) enforcement officers - and other environmentalists - from attempting to prevent any subsequent illegal whale hunting... The Makah tribe claims they will simultaneously spear Gray whales with stainless steel harpoons, while also shooting at their skulls with these massive, .50-caliber assault rifles. Coincidentally, these are the weapons normally mounted on military assault helicopters and Navy gunboats - they can efficiently shatter a ship's hull a mile away. There isn't a trace of 'ceremonial aboriginal whaling' in this plan - it's blatant, undeniable whale warfare!" available at Breach Marine Protection, http://www.breach.org/page32.html (accessed on October 9, 2003). Finally, The West Coast Anti-Whaling Society comments that, "the news often fails to even show the weapon (a .50 calibre rifle) that these traditional hunters intend to use. This hunt is not traditional, it is not cultural, and it is not even necessary. There is nothing romantically ceremonial about the intentions of severing an animals (sic) spinal cord with a high powered rifle." Available at A Foreword by Anna Hall, http://www.anti-whaling.com/foreward.htm (accessed on October 9, 2003).
334. Renker, supra note 2 at 8.
335. Id.
336. Länsman et al. v. Finland, Communication No. 511/1992, U.N. Doc. CCPR/ C/52/D/511/1992 at ¶9.3 (1994) (emphasis in original), available at http://www1.umn.edu/humanrts/undocs/html/vws511.htm.
337. Id. (emphasis in original).
338. Id.
339. Interestingly, as noted by Miller supra note 17, at 198, when negotiating with the Makah on behalf on the United States, Governor Stevens promised that the United States would provide the Makah "with newer, modern equipment" to assist the Makah in becoming even more effective whalers.
340. See also Boldt Decision, 384 F. Supp. at 363. Richardson, supra note 86, at 8, contends, albeit without any supporting reference, that environmental organizations "have commonly expressed concerns that use of more efficient harvesting technologies may result in resource depletion."
341. Lubicon Lake Band v. Canada, Communication No. 167/1984 (26 March 1990), U.N. Doc. Supp. No. 40 (A/45/40), Appendix I (individual opinion of Nisuke Ando) (1990) (emphasis in original), available at http://www1.umn.edu/humanrts/undocs/session45/167-1984.htm.
342. Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, Report No. 31, Vol. 2 (1986), ¶977, available at http://www.austlii.edu.au/au/other/alrc/publications/reports/31/.
343. Renker, supra note 2 at 9. Renker cites writings from Frances Densmore, who in 1939 reported that the Makah told him that, during the hunt, a long lance was used to "attack the whale, making it bleed profusely" and that the whole process could last "three to four days."
344. Sepez, supra note 51 at 152.
345. Miller, supra note 17 at 264.
346. See also IWC, Resolution on Whale Killing Issues, Res. 2004-2003 (2004) (requesting the IWC Working Group on Whale Killing Methods and Associated Welfare Issues to advise the IWC on, among other things, "reducing the time of death and other associated welfare issues," available at http://www.iwcoffice.org/meetings/resolution2004.htm#3.
347. Gillespie, supra note 103 at 98.
348. See also fns. 103 where Gillespie continues by stating that the panel also commented that "there is good reason to recommend improvement in weapons, powder and bombs currently employed to further reduce the struck but lost rate."
349. "The treaty commissioners were aware of the commercial nature and value of the Makah maritime economy and promised the Makah that the government would assist them in developing their maritime industry. Governor Stevens found the Makah not much concerned about their land, apart from village sites, burial sites, and certain other locations, but greatly concerned about their marine hunting and fishing rights. Much of the official record of the treaty negotiations deal with this. Stevens found it necessary to reassure the Makah that the government did not intend to stop them from marine hunting and fishing but in fact would help them to develop these pursuits. Article 13 of the Treaty with the Makah, however, did prohibit the tribe from trading at Vancouver Island. By his promises of kettles and fishing apparatus to the Makah, Governor Stevens clearly indicated that the treaty commissioners had no intention to restrict the Indians to aboriginal equipment or techniques. The Government's intent to aid the Makah in their whaling, sealing and other fisheries continued after the treaty." Boldt decision, 384 F. Supp at 363-64 (emphasis added).
350. Lani Guinier, The Tyranny Of The Majority (1994), at 3. Guinier continues by noting that Madison was concerned with the fact that in a heterogeneous community the assumption that the majority view is representative of the minority is "altogether fictitious."
351. Bradford supra note 100 at 169-170.
352. Franz Boas, who is widely considered to be the father of American anthropology, coined this term in describing how culture affects the way in which people view an event. As people wear different cultural glasses, two people can interpret one event in two very different ways. John Monaghan & Peter Just, Social And Cultural Anthropology: A Very Short Introduction (2000), at 38.
353. It could be argued that we are being inconsistent in objecting to one form of domination - majority culture over indigenous culture - which, if eliminated would allow a segment of a dominant species - indigenous peoples - to impose its values on another species - whales. Yet, as we stated at the outset, regardless of our personal beliefs regarding the rightfulness or wrongness of whaling, we feel it is for the Makah people to decide for themselves whether or not to engage in subsistence whaling. See infra, Introduction.
354. See Report of the IWC Scientific Committee, IWC/55/Rep1 (2003);
355. William C.G. Burns & Alexander Gillespie, The Future Of Cetaceans In a Changing World, (2003). For example, climate change could result in a trophic cascade, where a decline in sea ice in the Antarctic results in decreased productivity of algae, which is the primary winter food source for krill, which in turn is the primary prey of whales in the Antarctic.
356. William C.G. Burns, Climate Change And The International Whaling Commission in the 21ST Century, 339-379, 349-50 in Id.