Affirmative
1AC:
Observation 1 is Inherency:
The Makah’s last legal whale hunt was in 1999—while they have permission from the
IWC to take up to 20 whales, their federal permit has not been renewed and
participants in a 2007 whale hunt were convicted of a federal crime and imprisoned.
Peninsula Daily News, 2014
(“Makah Whalers Commemorate 15th Anniversary of Last Legal Whale Kill”,
http://www.peninsuladailynews.com/article/20140518/NEWS/305189969/makahwhalers-commemorate-15th-anniversary-of-last-legal-whale-kill, accessed July 10,
DVOG)
NEAH BAY –– Fifteen years after returning from their tribe's last legal whale kill, some members of the
crew of Makah whale hunters who led that hunt set out again into the bay aboard the Hummingbird
whaling canoe Saturday.
“It gives me chills. It just gives me chills,” said Charlotte Williams King.
Descended from a long line of whalers, King thought of her ancestors as she watched the canoes paddle
in Neah Bay.
Her great-grandfather, John “Hiska” McCarty, dove underwater to tie closed the mouths of harpooned
whales.
“I didn't really realize it, but 15 years is a long time,” she said.
Saturday's paddle, which included a chase canoe, was organized by the Makah Whaling Commission.
It commemorated the anniversary of the tribe's successful whale hunt on May 17, 1999. It was the first
time in 50 years that the Makah had harpooned a whale, and it happened aboard Hummingbird.
Members of the 1999 hunt crew led by Capt. Wayne Johnson were Theron Parker, Mike Steves, Darrell
Markishtum, Glenn Johnson, Keith Johnson, Arnie Hunter, Franklin Wilson, Bruce Gonzelas, Dan Greene,
Gordon Parker, Andy Noel, Donald H. Swan and Greg Arnold.
Most were aboard Hummingbird on Saturday.
Keith Johnson, president of the whaling commission, recalled the controversy that surrounded the 1999
kill of a gray whale, nicknamed “May,” whose skeleton now hangs in the Makah Cultural and Research
Center in Neah Bay.
“Last time we had a whaling crew in that [canoe], those terrorists, those eco-terrorists, that were out
there in their Zodiacs waking our boat and throwing smoke canisters at us,” Keith Johnson remembered.
The last whale killed by Makah tribal members was in 2007, when a group of five illegally shot dead a
gray whale.
Members of the 2007 crew were Wayne Johnson, Parker, Noel, Gonzales and William Secor Sr.
Wayne Johnson served five months in federal prison and Noel 90 days for their roles in the kill.
Hummingbird was retired in 2006 after it capsized, killing Joseph Andrew “Jerry” Jack, a hereditary chief
of the Mowachaht/Muchalaht tribe of Vancouver Island, during an InterTribal Canoe Journey.
Some had called for Hummingbird to be burned, Keith Johnson said, saying it had been cursed.
“You don't burn a whaling canoe,” he said Saturday. “You bless it.”
The Makah voluntarily stopped hunting gray whales in the 1920s when populations diminished. Gray
whales were listed as endangered species in 1970.
When the species was taken off the list in 1994, the Makah worked to resume subsistence hunting.
In the 15 years since the legal kill, the tribe's right to hunt whales, guaranteed in the 1855 Treaty of
Neah Bay, has been embroiled in court reviews over science.
After being allowed to hunt in 1998 and 1999,which ended in the killing of one whale, whale hunts were
stopped shortly thereafter by a federal court order saying the Makah needed an environmental impact
statement to obtain a waiver from the federal Marine Mammal Protection Act.
The International Whaling Commission in 2007 granted the tribe the right to kill as many as 20 whales
over five years — with no more than five in a single year — but it still must get a federal waiver to
conduct a hunt.
“We have judges that are animal rights activists that will do anything to put a road block in front of our
treaty right to hunt whales,” Keith Johnson said.
“Just leave us alone.”
Plan:
The United States Supreme Court should grant certiorari to Anderson v Evans and rule
that the Makah’s whaling rights under the Treaty of Neah Bay exempts them from the
Marine Mammal Protection Act permit requirements.
Observation 2 is Sovereignty:
The Makah have a right to hunt whales, granted to them by the Treaty of Neah Bay in
1855.
Stevens, 2012 (Jeremy, JD from Seattle University School of Law, American Indian Law Journal,
Volume 1, Issue 1, Fall 2012, “Of Whaling, Judicial Fiats, Treaties, and Indians: The Makah Saga
Continues”,
http://www.law.seattleu.edu/Documents/ailj/Fall%20Issue/Whaling%20Jeremy%20Stevens%20Final.pd
f, accessed July 10, 2014, DVOG)
And the Makah have been hunting whales for 1,500 years.14 Makah religion in fact instructs that
Thunderbird, a “flying wolflike god, delivered a whale to their shores to save them from starvation.”15
For at least 3,000 years since, the “gray whales have been sacred icons in the petroglyphs, jewelry, art,
carvings, songs, and dances”16 of the Makah. Whaling has not only been a source of subsistence to the
Makah as they have learned to survive–thrive, even, before westward expansion squeezed them onto
their current reservation–atop their clump of clay, rock, and dirt–whaling has been “an expression of
religious faith and community cohesion.”17 Nowhere else is this reverence, this sense of cultural interdependence, more illustrated than in the Treaty of Neah Bay.18
The Treaty of Neah Bay is the constitutionally binding source of federal plenary authority and dominion
over the Makah Indians–the exercise of the Indian Commerce clause which grants the congressional
right to dictate by legislative fiat the totality of Makah affairs. Effectuated in 1855, it is but one of the
“eleven different treaties, each with several different tribes”19 produced by Governor Isaac Stevens.20
Congress’ chosen method of opening up vast swaths of Pacific Northwest land for white westward
expansion was through the negotiation of treaties, as an instrument of conquest.21
And to clear the way for white settlement onto Indian lands, to accommodate the increasing flow of
American settlers pouring into the lowlands of Puget Sound and the river valleys north of the Columbia
River, Governor Isaac Stevens was tasked with inducing the Indians of the area to move“voluntarily”22
onto reservations. Indeed, Governor Stevens was well-suited for the undertaking. He recognized in the
Makah not much concern for their land (save for their village, burial sites, and other sundry locations),
but recognized great concern for “their marine hunting and fishing rights.”23
The Governor therefore reassured the Makah that the United States government did not “intend to
stop them from marine hunting and fishing but in fact would help them to develop these pursuits.” 24
But Governor Stevens did not speak the Makah’s language, nor did the Makah representatives speak
English. Instead, the Treaty of Neah Bay was negotiated in English and an interpreter translated English
into “Chinook Jargon” which then a member of the Clallum Tribe translated into Makah: English into
Chinook into Makah, and back.25Nevertheless, Governor Stevens was sufficiently intuitive and well
enough informed to recognize the primacy of the whale in Makah culture; indeed the man “promised
United States assistance in securing a treaty-based right for the Makah to whale and promote Makah
whaling” because in his own words, “The Great Father knows what whalers you are”.27 Much of the
official record of the treaty negotiations thus deals with securing the right to whale; and as
consideration for that treaty-reserved right, the Makah ceded 91% of their land—a full 300,000 square
acres—and retained only a 27,000 square acre wind-swept, crag-ridden, “mountainous, forest covered
region, with no arable land except the low swamp and marsh”.28 The Makah were not interested in
becoming tillers of soil or hunters of the elk, deer, and bear which dwelt among them. Yes, the Makah
grew their potatoes and gathered berries when the season was proper, but no culture can survive on
tubers and berries alone; a people requires “animal food, and [the Makah] prefer[red] the products of
the ocean to the farina of the land.”29 As a testament to the importance of the whale to every aspect
of Makah culture and as an illustration of the extent to which the act of whaling was more important to
the Makah than it was to any other tribe with which the Government negotiated a treaty, the Treaty of
Neah Bay is the only United States-Indian treaty which secures for the Indians the express right to
whale: the “right of taking fish and of whaling or sealing at usual and accustomed grounds and stations
is further secured to said Indians in common 30 with all citizens of the United States.”31
NOAA recognized that treaty right when they advocated for the exemption to the
IWC, which was granted in 1998.
Stevens, 2012 (Jeremy, JD from Seattle University School of Law, American Indian Law Journal,
Volume 1, Issue 1, Fall 2012, “Of Whaling, Judicial Fiats, Treaties, and Indians: The Makah Saga
Continues”,
http://www.law.seattleu.edu/Documents/ailj/Fall%20Issue/Whaling%20Jeremy%20Stevens%20Final.pd
f, accessed July 10, 2014, DVOG)
Happily, by June of 1994, the Eastern North Pacific (ENP) population of the California Gray Whale had
“recovered to near its estimated original population size and [was] neither in danger of extinction
throughout all or a significant portion of its range, nor likely to again become endangered within the
foreseeable future throughout all or a significant portion of its range.”48 This steady, stable population
of approximately 20,000 California Gray Whales 49 leisurely roaming the seas was delisted under the
ESA that same year, and the Makah decided to resume its hunting of those “who migrated through the
Sanctuary.”50 To accomplish this end, the Makah sought the assistance of the Federal government’s
Department of Commerce: specifically, the NOAA which Congress had tasked with the promulgation of
regulations to implement the Whaling Convention Act. Indeed, on March 22, 1996, the Makah and the
NOAA entered into a formal written agreement by which the “NOAA, through the United States
Commissioner to the IWC, will make a formal proposal to the IWC for a quota of gray whales for
subsistence and ceremonial use by the Makah Tribe.”51
But in response to this agreement, in June of 1997, two organizations–Australians for Animals and the
BEACH Marine Protection–submitted a letter to NOAA “alleging that the United States Government had
violated National Environmental Policy Act (NEPA) by authorizing and promoting the Makah whaling
proposal without preparing an”52 Environmental Assessment (EA) or an Environmental Impact
Statement (EIS). The NOAA responded by distributing an EA for public comment, in compliance with the
National Environmental Policy Act, on August 22, 1997.53 A short time later, on October 13, 1997,
NOAA and the Makah entered into a new written agreement which “required the Makah to confine
hunting activities to the open waters of the Pacific Ocean.”54 After the signing of this new agreement,
the NOAA issued a Finding of No Significant Impact (FONSI) four days later, on October 17, 1997.55
One day later at the IWC’s annual meeting the United States on behalf of the Makah, and the Russian
Confederation on behalf of a Siberian aboriginal group called the Chukotka, submitted a “joint proposal
for a five-year block quota of 620 whales. The total quota of 620 assumed an average annual harvest of
120 whales by the Chukotka and an average annual harvest of four whales by the Makah.”56 Yet some
delegates “expressed doubts about whether the Makah qualified for the quota under the ‘aboriginal
subsistence’ exception,”57 and therefore suggested “amending the joint proposal to allow the quota to
be used only by aboriginal groups whose traditional subsistence and cultural needs have been
recognized by the International Whaling Commission.”58 The United States rejected this amendment,
arguing that the IWC had no “established mechanism for recognizing such needs.”59 The proposal
submitted by the United States and the Russian Federation was thus amended to allow the block quota
of 620 whales to be used only by aboriginal groups “whose traditional subsistence and cultural needs
have been recognized.”60 This quota shortly thereafter was approved, and on April 6, 1998, NOAA
issued a Federal Register Notice allocating a quota to the Makah for limited hunts in 1999. This allowed
the Makah, in lawful exercise of its re-established expressly-reserved treaty right, to engage in whaling
“pursuant to the IWC-approved quota and Whaling Convention Act regulations.”61
Unfortunately, the Ninth Circuit court of appeals incorrectly requires the Makah to
comply with the MMPA, which abrogates that treaty right.
Stevens, 2012 (Jeremy, JD from Seattle University School of Law, American Indian Law Journal,
Volume 1, Issue 1, Fall 2012, “Of Whaling, Judicial Fiats, Treaties, and Indians: The Makah Saga
Continues”,
http://www.law.seattleu.edu/Documents/ailj/Fall%20Issue/Whaling%20Jeremy%20Stevens%20Final.pd
f, accessed July 10, 2014, DVOG)
Anderson arose in the wake of the NMFS and the NOAA response to Metcalf. Complying with that
court’s directive, in January of 2001 NMFS and NOAA published another Draft Environmental
Assessment. The whale quota in this Draft, and in the Makah Management Plan which accompanied it,
targeted migrating whales. This meant that whaling would be allowed only in the “open waters of the
Pacific Ocean which are outside the Tatoosh-Bonilla Line,”155 thus targeting migratory whales. But the
Makah revised their management plan; the amended plan, in contrast to the Tribe’s earlier
management plan, did “not contain any general geographic limitations on the whale hunt.”156 This
amendment was not incorporated into the Draft Environmental Assessment and there had thus “been
no opportunity for public comment on the important” 157 change. Additionally, none of the scientific
studies relied upon in the Draft EA evaluated the impact of the revised management plan. 158
Nevertheless, the NOAA and the NMFS issued a FONSI, thereby obviating the need to proceed, under
NEPA, with an EIS. 15 The next “step in the administrative saga took place when NOAA and the NMFS
issued a Federal Register notice on December 13, 2001 announcing a quota”160 of five gray whales in
2001 and 2002, and in approval of the Makah management plan.161
It should come as no surprise, then, that citizens and animal welfare groups filed another complaint in
January 2002, alleging violations of both the National Environmental Policy Act and the Marine Mammal
Protection Act. Once again, the Makah Tribe intervened as a defendant, and once again, on the district
court level, summary judgment was granted to the defendants, whereupon the plaintiffs, once again,
appealed.162 The saga took its most relevant and unhappy turn when the Ninth Circuit considered the
plaintiffs’ appeal from the district court’s summary judgment, and reversed the lower court. The court
held in Anderson v. Evans that the government’s failure to prepare an EIS violated NEPA and the
MMPA’s take moratorium and permitting process was binding upon the Tribe’s exercise of its treatyreserved right to hunt whales. On November 26, 2003 163 and June 7, 2004,164 the Ninth Circuit Court
of Appeals denied en banc rehearings and issued amended opinions which clarified the (faulty) legal
reasoning of its decision, but did not alter the conclusion.
Having held that the Marine Mammal Protection Act proscribes the Makah Tribe’s treaty-reserved
whaling rights, the Anderson Court stated that they were not overruling the Treaty of Neah Bay’s
explicitly-reserved right to whale; this however is in essence the practical impact of the decision. In
reaching its conclusion, the Court used the state conservation necessity test which the United States
Supreme Court in Puyallup I, II and US v. Washington used to assess the constitutionality of state laws
which infringe upon Indian treaty rights, while the MMPA is a federal law. Regardless of the United
States Supreme Court’s clear intention to promulgate two distinct tests to assess a federal or a state
statute’s constitutionality when the statute infringes upon a treaty-reserved right, it is this latter test,
this state conservation necessity test, which the Ninth Circuit followed in applying the MMPA in
Anderson v. Evans.
The satisfaction of the state conservation necessity test was instrumental in the Ninth Circuit’s ruling
against a Tulalip Indian who shot and killed a bald eagle on the Tulalip reservation in United States v.
Fryberg.165 In Fryberg, the Ninth Circuit faced in 1980 the same issue the Supreme Court would address
in 1986 in Dion: whether the Eagle Protection Act modified or abrogated Indian treaty-reserved rights. In
deciding the matter, the Ninth Circuit took its cue from the Puyallup cases, applying the state
conservation necessity test, this time to a federal statute, which the United States Supreme Court in
Puyallup I and Puyallup II etched into judicial granite. Yet each Puyallup case involved state conservation
laws, not federal statutes. Further illustrative of the fact that the United States Supreme Court in Dion
was developing a distinct test to be used for determining the relevance of federal statutes to treatyreserved rights, is the incontrovertible fact that not once–not in the text, not in a footnote–in its Dion
opinion did the United States Supreme Court six years later mention either Fryberg or any of the
Puyallup cases. Indeed, there was no need to mention either because neither was relevant. Instead,
there was to be a distinction between manner of determining the relevance of a state’s conservation
statute to treaty-reserved tribal rights and determining the relevance of a federal statute to treatyreserved tribal rights because the provenance of state authority over Indian tribes differs from the
provenance of federal authority over Indian tribes.
The Ninth Circuit was careful to note in Anderson, however, that they were not deciding whether or not
the MMPA actually abrogated the Makah treaty-reserved right to whale, holding only that satisfaction of
the state conservation necessity test bound the Makah to MMPA regulations.166 But hearkening to the
distinction between regulation and abrogation as a way to avoid the larger abrogation analysis is
intellectual sophistry which skirts the issue of whether Congress intended a federal statute to even apply
to–and in this way to limit–an Indian treaty-reserved right. Applying the state conservation necessity
test to determine the effects of a state statute violates a sacrosanct tenet in the field of Federal Indian
Law and a Supreme Court admonition: congressional intent to
modify or abrogate Indian treaty-rights “is not to be lightly imputed.”167 Having used the state
conservation and necessity test to bind the Makah to the MMPA, the Ninth Circuit has subjected the
Makah’s treaty-reserved right to whale to the academics and the “‘expert administrators’ whose powerdrives” may very well “reflect the rise and fall in our democratic faith.”168
Whaling is key to preservation of Makah culture—it is a critical transgression against
Western society that unites the tribe in opposition to cultural imperialism and
assimilation.
Van Ginkel, Anthropology Senior Lecturer at University of Amsterdam, 2004 (Rob, “The
Makah Whale Hunt and Leviathan’s Death: Reinventing Tradition and Disputing Authenticity in the Age
of Modernity”, Etnofoor, Volume 17, No ½,
http://www.jstor.org/discover/10.2307/25758069?uid=24956&uid=3739960&uid=2&uid=3&uid=67&ui
d=24955&uid=62&uid=3739256&sid=21104306615977, accessed 7/11/2014, DVOG)
This may be so, but in the process of authenticating Makah tradition, a vast majority of the tribe chose
to single out, mobilize and articulate what they perceived to be an essential cultural element. No less
than ninety-four per cent of the respondents of a 2001 survey among Makah households believed that
resuming the hunt had affected the tribe positively. The political process of ‘strategic essentialism’
provided an angle to restore cultural pride. To achieve this, Leviathan offered its life (at least, in the
Makah perception), dividing-reuniting-dividing the tribal community, sending scorn from the world
without on it, but also – for better or for worse – giving a blood-infusion to its culture. In this sense, a
major objective the Makah had with recreating the whale hunt was realized against all odds, despite
overwhelming opposition and largely on their terms.
Of all possibilities, reclaiming and reenacting the cultural practice of the whale hunt could define the
Makah much more saliently than, say, basket weaving, wood carving or most other ‘native’ activities
that are far less controversial to the world without.
In the final analysis, the degree to which reinstating the tribal tradition of the whale hunt was
‘authentic’ in the sense of a return to some genuine and pristine cultural stage is untenable and
irrelevant because culture is always complex, multiple, fluid and in flux (Munn 2000:352). ‘Authenticity’
in this regard is a particular cultural construct of the modern Western world (Handler 1986). There is,
however, another view of ‘authenticity’ or ‘being authentic’ that does have a bearing in the present
case. Authenticity is often regarded as a stance against the dominant cultural norms of mass society, the
ordinary and everyday (Handler and Saxton 1988:243; Lindholm 2002:336). Thus, conformism is
inherently inauthentic. Ultimately, being Makah is constituted through practice and experience. It does
not really matter whether the Makah whale hunt as it was conducted in 1999 harks back in every detail
to history, tradition or cultural ‘fact’ at a particular point in time. What does matter is that the Makah
feel they live their perception of being Makah through their actions: ‘an authentic experience : : : is one
in which individuals feel themselves to be in touch both with a “real” world and with their “real” selves’
(Handler and Saxton 1988:243). This is not a fixed reality that can be established once and for all, but it
must be produced over and over again. And it is here that authenticity and identity become intimately
connected. As Handler argues, ‘assertions of authenticity always have embedded within them
assertions of identity’ (2002:964). Consequently, authenticity refers to ‘the recognition of difference’
(Fine 2003:155).Authentic behavior is distinctive behavior. In this regard, the act of killing one gray
whale was authentic enough. By transgressing a taboo of mainstream Western society, the Makah
showed the world without that they are ‘different’. In doing so, they found their ‘true selves’ and
reinvented themselves as Makah.
Independently, the discursive site of treaties offers unique space for resistance by
indigenous groups—we re-appropriate treaty discourse to provide for indigenous
rights and reject attempts by the USFG to place treaty rights in the past.
Allen, English Professor at Ohio State, 2000 (“Postcolonial Theory and the Discourse of
Treaties”, American Quarterly, Volume 52, No 1,
https://muse.jhu.edu/journals/american_quarterly/v052/52.1allen.html, accessed July 11, 2014, DVOG)
For many American Indian individuals and communities, treaties had, by the late 1960s, come to be
regarded as a significant public record and the clearest hard evidence of the sovereign nature of
indigenous American nations; as such, treaties were seen as valid before the international
community. 34 Moreover, like Maori in New Zealand, many--though certainly not all--American Indians
had long regarded treaties as sacred covenants, solemn pledges between their [End Page 70] ancestors
and the U.S. government made before the eyes of the Creator. 35 And increasingly--but especially
during and after attempts in the 1950s to terminate several tribes' federally protected status--treaties
became important symbols of American Indians' continuing distinctiveness as nations and
peoples. 36 By the late 1960s, therefore, local, ongoing histories of treaty violations acquired political
and moral connotations that resonated far beyond the reservation boundaries established in specific
documents. During the Alcatraz occupation, for example, the Treaty of 1868, signed at Fort Laramie by
representatives of various Sioux bands and their allies the Arapaho, was held up as symbolic of the
sovereignty and rights of all American Indian nations and of the continuing responsibilities of the federal
government toward its treaty partners. 37 This same treaty was evoked again in 1973 during the armed
occupation at Wounded Knee, South Dakota to declare an independent Oglala nation. 38
The Alcatraz Proclamation makes clear that American Indian appropriations of treaty discourse easily
conflate a popularized version of treaties and treaty-making--in which the government pledges to
uphold promises "for as long as the sun shall rise and the rivers go down to the sea"--with the less
colorful provisions of specific documents. Such conflation strategically counters typical deployments of
treaty discourse by the dominant Euro-American culture. For inevitably, both the U.S. government and
white U.S. citizens have had to argue that treaty promises are politically retrograde, a contemporarily
meaningless discourse designed in the past to pacify Indians or to ameliorate their inevitable
subjugation. In discussing mid-nineteenth-century treaties, the dominant culture has had to foreground
the ideas that these documents were little more than bothersome formalities, or that they were ruses
designed to deceive, or that, whatever the federal government's intentions at the time of signing, treaty
promises are no longer practical for the nation. These ideas are held up as the important truths hidden
behind the facades of actual treaty documents. Clearly, such arguments are intended to undermine the
sovereignty of American Indian nations. To counter this dominant ideology, as I suggest above, activist
texts like the Alcatraz Proclamation foreground instead precisely those surface features of treaties that
the dominant culture wishes to ignore. Though deployed as a parody, the treaty discourse of the
Alcatraz Proclamation draws attention to the ideas that treaties are the founding discourse for peaceful
relations between American Indian [End Page 71] nations and the United States, and that treaties are
undeniable records of binding agreements, whatever the U.S. government may have intended at the
time of signing or may desire today. As I demonstrate in the next section, like the activists at Alcatraz
and Wounded Knee, a number of American Indian writers invite their audiences to re-recognize the
discourse through which the United States both acknowledges their nations as sovereign and solemnly
pledges to uphold that sovereignty.
Promises Paper Thin: Treaty Discourse as Metaphor and Metonymy
Comprehensive studies of contemporary American Indian literature emphasize this body of work's
overwhelming concern with themes of personal identity and sense of place, articulation and
inarticulateness, and commitment to community. 39 The redeployment of treaty discourse can be
situated within this thematic matrix as one of the many strategies American Indian writers employ to
represent recovery of self, place, voice, and community--specifically, as a strategy employed to
rearticulate indigenous nations as sovereign. American Indian writers mobilize treaty discourse to create
metaphors for Indian-white relations and inscribe treaty documents in their texts as metonyms for those
promises made--and most often broken--by the federal government. The title of Thomas King's 1993
comic novel Green Grass, Running Water, for example, refers explicitly to the over-determined, overlymetaphorical language popularly associated with historic treaties. 40 In King's hands this language
acquires significant contemporary meaning. The novel's title announces its central theme, the
contemplation of the idea that treaties were supposed to remain in force "in perpetuity." Settlers may
forecast (and hope) that Indians will simply vanish--and with them, all treaty claims disappear--and
there may be periods of real peril. But King's novel argues that, like the forces of moving water or plant
growth evoked in the discourse of treaties, Indian peoples and their traditions tenaciously return.
Thus, the affirmative functions as a subversive act that mocks white narratives of
dominance and subjugation.
Allen, English Professor at Ohio State, 2000 (“Postcolonial Theory and the Discourse of
Treaties”, American Quarterly, Volume 52, No 1,
https://muse.jhu.edu/journals/american_quarterly/v052/52.1allen.html, accessed July 11, 2014, DVOG)
In recounting their peoples' struggles against settler domination, the American Indian writers discussed
above, like their Maori counterparts, engage the discourse of treaties as one of the sanctioned
discourses for inscribing such stories. But--and here is the critical maneuver--they refuse to engage, and
even mock, the subsequent rules of recognition that have enabled the dominant culture to (mis)read
treaty discourse as an enduring sign of Indian subjugation rather than as an enduring sign of
compromise between mutually respected sovereignties. Their hard won subversion is manifest in their
re-recognition of a treaty discourse that acknowledges Indian sovereignty and in their insistence on the
continuing authority of that original recognition. Given demographic and political realities, in which
American Indians make up less than one percent of the U.S. population and have little say in the design
or enforcement of U.S. laws, such maneuvers represent a deft tactics of activist occupation of significant
sites of colonial discourse. As on the tiny island of Alcatraz or at the embattled site of Wounded Knee,
literary occupations of treaty discourse do not seek to disrupt or displace the dominant colonial
narrative but to realign its contemporary consumption with the terms of the relevant past, to assert that
it has an ongoing rather than a narrowly situated authenticity. 55
Because treaties recognize indigenous nations as sovereign, they continue to offer strong legal and
moral bases from which indigenous peoples can argue land and resources rights, as well as cultural and
identity politics. Moreover, because the discourse of treaties is simultaneously pragmatic and idealistic,
imposing one group's expectations upon the other even as it envisions their reconciliation, it offers [End
Page 82] indigenous activists and writers a widely recognized symbol and a set of widely recognized
statements through which they can not only express anger over past and present acts of colonial
violence but, simultaneously, continue to imagine the possibility of future peace. 56
Self-determination of cultural values is key to check back dehumanization and is even
more critical than political sovereignty.
Wiessner, Law Professor at St Thomas University, 2007 (Siegfried, “Indigenous Sovereignty: A
Reassessment in Light of the UN Declaration on the Rights of Indigenous Peoples”, Vanderbilt Journal of
Transnational Law, Volume 41, http://www.vanderbilt.edu/jotl/manage/wpcontent/uploads/Wiessner_final_7.pdf, accessed July 11, 2014, DVOG)
As law, in essence, ought to serve human beings, any effort to design a better law should be conceived
as a response to human needs and aspirations. These vary from culture to culture, and they change over
time. As Michael Reisman has explained, humans have a distinct need to create and ascribe meaning
and value to immutable experiences of human existence: the trauma of birth, the discovery of the self as
separate from others, the formation of gender or sexual identity, procreation, the death of loved ones,
one’s own death, indeed, the mystery of it all. Each culture . . . records these experiences in ways that
provide meaning, guidance and codes of rectitude that serve as compasses for the individual as he or
she navigates the vicissitudes oflife.185 Thus, from the need to make sense of one’s individual and
cultural experiences arise inner worlds, or each person’s inner reality. The international human rights
system, as Reisman sees it, is concerned with protecting, for those who wish to maintain them, the
integrity of the unique visions of these inner worlds, from appraisal and policing in terms of the cultural
values of others. This must be, for these inner world cosmovisions, or introcosms, are the central, vital
part of the individuality of each of us. This is, to borrow Holmes’ wonderful phrase, “where we live.”
Respect for the other requires, above all, respect for the other’s inner world.186 The cultures of
indigenous peoples have been under attack and are seriously endangered. One final step is the death of
their language. As George Steiner wrote in 1975: Today entire families of language survive only in the
halting remembrances of aged, individual informants . . . or in the limbo of tape recordings. Almost at
every moment in time, notably in the sphere of
American Indian speech, some ancient and rich expression of articulate being is lapsing into irretrievable
silence.187
Reisman concluded that political and economic self-determination in this context are important, “but it
is the integrity of the inner worlds of peoples—their rectitude systems or their sense of spirituality—that
is their distinctive humanity. Without an opportunity to determine, sustain, and develop that integrity,
their humanity—and ours— is denied.”188 Similarly, the late Vine Deloria, Jr., revered leader of the U.S.
indigenous revival, stated that indigenous sovereignty “consist[s] more of a continued cultural integrity
than of political powers and to the degree that a nation loses its sense of cultural identity, to that degree
it suffers a loss of sovereignty.”189 “Sovereignty,” explains another great Native American leader, Kirke
Kickingbird, “cannot be separated from people or their culture.”190 In this vein, Taiaiake Alfred appeals
for a process of “de-thinking” sovereignty. He states: Sovereignty . . . is a social creation. It is not an
objective or natural phenomenon, but the result of choices made by men and women, indicative of a
mindset located in, rather than a natural force creative of, a social and political order. The reification of
sovereignty in politics today is the result of a triumph of a particular set of ideas over others—no more
natural to the world than any other man-made object.
Indigenous perspectives offer alternatives, beginning with the restoration of a regime of respect. This
ideal contrasts with the statist solution, still rooted in a classical notion of sovereignty that mandates a
distributive rearrangement but with a basic maintenance of the superior posture of the state. True
indigenous formulations are nonintrusive and build frameworks of respectful coexistence by
acknowledging the integrity and autonomy of the various constituent elements of the relationship. They
go far beyond even the most liberal Western conceptions of justice in promoting the achievement of
peace, because they explicitly allow for difference while mandating the construction of sound
relationships among autonomously powered elements.191 June McCue, Director of First Nations Studies
at the University of British Columbia and member of the Neduten tribe, says: I can connect sovereignty
and self-determination within the distinct context of my people by making an analogy to the trees on my
Clan or house territory. The roots, trunk, and bark of the trees represent sovereignty to me. The special
sap, food, medicines and seedlings that come from our trees are symbiotic with the life force or energy
of my people and the land, united in a consciousness and connected through the web of life. . . .
Indigenous conceptions of sovereignty are found in the respective traditions of Indigenous peoples and
their relationships with their territories. The power to exercise sovereignty flows from their laws,
customs, and governing systems and their interconnectedness with theEarth. . . .
My people’s power is sourced or rooted in our creation stories, our spirituality and our organic and
peaceful institutions. Sovereignty requires the energy of the land and the people and is distinct about
locality.192 Creation stories, in particular, are much more than accounts of the genesis of the Earth.
They are essentially normative, as they portray appropriate, model behavior193—like the hadith, the
traditions of the Prophet in Islam. As the Western Shoshone say, decisions are made by consensus; the
whole community thus has ownership of the decision made.194 Those decisions are ultimately based on
natural laws that are not written by humans but imposed by the Creator, variously referred to as Mother
Earth and Father Sky.195 There is no separation between church and state. McCue explains: From an
Indigenous prospective, sovereignty is not just human-centered and hierarchical; it is not solely born or
sustained through brute force. Indigenous sovereignty must be birthed through a genuine effort to
establish peace, respect, and balance in this world. Indigenous sovereignty is interconnected with selfdetermination. Non-Indigenous formulations of sovereignty treat states as artificial entities that hold
sovereign rights such as territorial integrity or sovereign equality. Self-determination is severed as a
right possessed by peoples which can limit state powers. Finally, Indigenous sovereignty is sacred and
renewed with ceremonies that are rooted in the land. . . .
In this sense, sovereignty can be seen as the frame that houses the life force or energy that can flow at
high or low levels depending on how the people are living at any given particular moment in their
territories. Such sovereign attributes are renewed each and every time we use our potlatch system and
when clan members choose to fulfill their roles and responsibilities to each other and to their neighbors.
These attributes are renewed when we act as stewards for our ecological spaces. These sovereign
attributes do not negate the fact that my people also exercise attributes of sovereignty similar to those
upon which Western societies found their state systems—such as protecting and defending territorial
boundaries, and engaging in external foreign relations with trade and commerce. I would add
peacemaking, possessing governing institutions for the people, a citizenry or permanent population with
a language, and powers of wealth and resource redistribution amongst our clans. The comparative
inquiry is rather one of the priorities and whether or not conduct or behaviors of the people are
coordinate with our principles of living a good life and maintaining and securing peaceful good
relations.196
Taiaiake Alfred, even more focused on culture, has called for a physical and spiritual self-renewal of
indigenous communities, a radical “indigenous resurgence.”197 Self-help and re-empowerment are,
thus, key to the survival and the flourishing of indigenous communities. These gains cannot be achieved,
however, if indigenous peoples and their cultures are crushed by the constant onslaught of modern
society’s influences. While it is impossible and undesirable to imprison indigenous peoples in a living
museum of their culture, the world community at large ought to support their choice to live according to
the codes of their inner worlds.
Dehumanization allows us to see people as disposable and thus extinguishable, setting
up a chain of events that terminates in endless war and genocide.
Dillon, Professor at the University of Lancaster, 1999 (Michael, “ANOTHER JUSTICE”,
POLITICAL THEORY VOL. 27, NO. 2, APRILL 1999, JSTOR)
Otherness is born(e) within the self as an integral part of itself and in such a way that it always remains
an inherent stranger to itself." It derives from the lack, absence, or ineradicable incompleteness which
comes from having no security of tenure within or over that of which the self is a particular
hermeneutical manifestation; namely, being itself. The point about the human, betrayed by this
absence, is precisely that it is not sovereignly self-possessed and complete, enjoying undisputed tenure
in and of itself. Modes of justice therefore reliant upon such a subject lack the very foundations in the
self that they most violently insist upon seeing inscribed there. This does not, however, mean that the
dissolution of the subject also entails the dissolution of Justice.Quite the reverse. The subject was never
a firm foundation for justice, much less a hospitable vehicle for the reception of the call of another
Justice. It was never in possession of that self-possession which was supposed to secure the certainty of
itself, of a self-possession that would enable it ultimately to adjudicate everything. The very indexicality
required of sovereign subjectivity gave rise rather to a commensurability much more amenable to the
expendability required of the political and material economies of mass societies than it did to the
singular, invaluable, and uncanny uniqueness of the self. The value of the subject became the standard
unit of currency for the political arithmetic of States and the political economies of capitalism. They
trade in it still to devastating global effect. The technologisation of the political has become manifest
and global.Economies of evaluation necessarily require calculability. Thus no valuation without
mensuration and no mensuration without indexation. Once rendered calculable, however, units of
account are necessarily submissible not only to valuation but also, of course, to devaluation.
Devaluation, logically, can extend to the point of counting as nothing. Hence, no mensuration without
demensuration either. There is nothing abstract about this: the declension of economies of value leads
to the zero point of holocaust. However liberating and emancipating systems of value-rights-may claim
to be, for example, they run the risk of counting out the invaluable. Counted out, the invaluable may
then lose its purchase on life. Herewith, then, the necessity of championing the invaluable itself. For we
must never forget that, "we are dealing always with whatever exceeds measure. But how does that
necessity present itself? Another Justice answers: as the surplus of the duty to answer to the claim of
Justice over rights. That duty, as with the advent of another Justice, is integral to the lack constitutive of
the human way of being.
Observation 3: Precedent
The US federal courts have moved from the last bastion of hope for redress of Native
concerns to the most oppressive branch of government—plan takes the first step in
reversing the last 25 years of oppression.
Young, Professor of Communication at Wayne State, 2005 (Kelly, “The Ghost of Moby-Dick
and the Rhetorical Haunting of the Ninth Court’s Anderson v. Evans Decision”, Communication Law
Review, Volume 10, Issue 1, http://commlawreview.org/Archives/CLRv10i1/PDFs/The_Ghost_of_MobyDick_and_the_Rhetorical_Haunting.pdf, accessed July 11, 2014, DVOG)
Historically, federal courts have been viewed as champions of civil rights and progressive social change.1
Particularly in Native American2 affairs, the federal judiciary—due to the legacy of landmark decisions
made by the Marshall court—were perceived to be the only branch that respected and protected Indian
sovereignty.3 For example, the judiciary was the first branch to boldly address the status of preexisting
tribal political and property rights, giving the courts an “air of sanctity” and legitimacy in defining the
scope and meaning of Indian sovereignty.4 As a result, the courts began to exercise their own plenary
power over matters of Native American affairs, especially in the last 25 years.5 Subsequently, the legal
system has attributed itself with a sense of authority over Native American legal rights and sovereignty.6
However, the courts regularly downplay their increasingly influential role in Indian affairs.
For example, courts regularly argue that they would prefer to have clear congressional or executive
guidance to assist them in resolving sovereignty disputes.7 Yet, even when they receive clear direction
from the other branches, the courts are unwilling to follow this guidance. 8 Additionally, while their
authority and influence over Indian affairs has dramatically increased, the courts have become more
fearful of creating broad rulings that might make them appear to be interventionist. 9 Consequently, the
courts have severely diminished Indian sovereignty over the last 25 years without acknowledging their
role in the process.10
Yet, this legal anxiety is not solely confined to matters of Native American affairs. The legal system has
historically been viewed by minoritarian groups as an authoritative forum where matters of
multicultural difference can be properly resolved, even when the courts’ rulings have had detrimental
effects on ethnic minority rights.11 Here too, much like in their handling of tribal sovereignty cases, the
courts strive to appear impartial and non-interventionist. Despite their efforts, they haphazardly use
selective precedence and unjustified interpretations of statutory language and decisions that establish
new doctrines that undermine important cultural and legal rights.12 In light of these legal patterns, this
essay explores how courts discursively negotiate and reproduce their political authority to curtail Native
American self-determination and sovereignty. To do so, the written opinion of the Ninth Circuit Court of
Appeals’ 2002 Anderson v. Evans13 decision about the legality and environmental impact of the Makah
tribe’s efforts to reclaim a sovereign right to hunt gray whales is examined. This decision was chosen for
close examination because it addresses highly controversial and complex conflicts between federal
environmental regulations, international law and tribal sovereignty.14 In particular, the decision asks
the court to afford the Makah a treaty-based right to engage in an activity U.S. law has deemed
dangerous and threatening to global whale populations and the ocean ecosystem. As a result, the case
forces the court to confront the conflict that is created when treaty rights clash with national and
international norms and laws. While the Makah example is a rather narrow instance, the conflict of
issues before the court are ones that speak to a host of issues that affect the courts’ ability to recognize
and respect racial difference in a globalized era.15 Marshalling fundamental tenets of Critical Tribal Race
Theory (Tribal Crit), this essay examines how the discourse of the Anderson decision forecloses an
important opportunity for the Ninth court to recognize its colonialist authority to restrict Native
American sovereignty. What is of particular interest is the way in which European American16 cultural
fears about the loss of legal authority and the sublime force of nature, as discussed through allusions to
the terrifying whale in Herman Melville’s Moby Dick, call forth and mask the operation of whiteness as a
governing ideology throughout the decision. Specifically, Tribal Crit and rhetorical analysis are utilized in
this essay to expose how the law discursively deploys European American fears of Moby-Dick and the
sublime to constrain Native American beliefs, values and cultural practices in order to maintain legal
legitimacy.
Anderson sets a precedent—the case allows courts to ignore treaty rights.
Young, Professor of Communication at Wayne State, 2005 (Kelly, “The Ghost of Moby-Dick
and the Rhetorical Haunting of the Ninth Court’s Anderson v. Evans Decision”, Communication Law
Review, Volume 10, Issue 1, http://commlawreview.org/Archives/CLRv10i1/PDFs/The_Ghost_of_MobyDick_and_the_Rhetorical_Haunting.pdf, accessed July 11, 2014, DVOG)
Furthermore, the court’s discourse sets dangerous precedent for Native American rights and
sovereignty. In making its decision, the court can ignore consideration of sovereign rights and specific
treaty language because the deployment of Moby-Dick allows the justices to privilege the underlying
“conservation necessity” of the Marine Mammal Protection Act as their overriding reason to reject the
cultural and religious reasons for the hunt. By deciding the case based on conservation principles made
exceptionally visible by the literary allusion to Moby-Dick, issues of treaty abrogation were never fully
considered. As the court explained, “because of our conclusion that the MMPA applies in light of the
conservation purpose of the statute and the literal language of the treaty, we need not consider
plaintiffs’ alternative arguments that the MMPA applies by virtue of treaty abrogation.”82 As this
statement makes clear, the court considered the question of treaty abrogation irrelevant once
presumption was made in favor of species conservation. Illuminated by Tribal Crit, this shift in
presumption is dangerous for Native American sovereignty. Due to its plenary power over all Native
American issues, Congress can abrogate or amend existing Federal-Indian treaties. However, the
Supreme Court has held that courts should adopt a strong presumption that federal laws generally do
not veto treaty rights unless Congress expressly discussed the issue and chose to modify the treaty
right.83 Despite these measures to protect Native American sovereignty, in reaching its decision, the
Anderson court ignored specific statements from members of Congress that outlined how the MMPA
did not abrogate treaty rights.84 Thus, once the court concluded that this was an issue of conservation
necessity and not treaty rights, they were able to disregard a rather strong precedence in favor of treaty
rights while increasing colonial interference and their authority to act against Native American interests.
Additionally, the discourse of the court exposes how little Native American values and traditions are
considered by the court. When the court explains the background of the case, they limited their
description to the mechanical process through which the Makah made their request. There is only one
paragraph that mentions the treaty-based reasons justifying why the Makah wanted to hunt. In this
section the court stated,“ The Treaty…is the only treaty…that specifically protects the right to hunt
whales suggests the historic importance of whaling to the Makah.”85 Note here that whaling is cast as a
historic and past need. Thus, even when the Makah have an opportunity to present their own voices and
beliefs before the court, Makah culture is constituted as counter to the natural progression of European
American culture and time.86 In this particular instance, the court reaffirms whiteness as the basis for
its decision and uses the law as a silencing agent fueled by racism when the Makah tribe and Native
American culture are discursively situated as remote, distant and thus unimportant in comparison to the
contemporary, eco-friendly and civilized culture of European America.
Lastly, the only other substantive discussion of the treaty examined the treaty language “on its face”
to conclude that the treaty gave equal rights to all citizens of the U.S. to use whale resources.87 Because
all citizens enjoy this right, the court concluded that it could not grant “special privilege” to the Makah
to hunt when all other (European American) citizens are restricted from whaling. However, what the
court fails to explain in this argument is that the “special privilege” is not something that the court
would be creating as a result of its decision. Instead, the right to whale was given to Makah in exchange
for their territory and sovereign independence. Thus, the privilege cannot be “special” when European
Americans have not made similar sacrifices for this right. Here whiteness surfaces as a marker of
racialized dismissal in that the underlying assumption in the decision is that everyone is equal, despite
the long history of colonial relations between European and Native Americans that have relegated
Native American identity and culture to a position of legal and social inferiority.88
The USFG has a legal and moral obligation to uphold treaties signed with Native
Americans
Tanner, co-coordinator of Borderlands Research and Education, 2009
(Charles Tanner Jr, 9-18-09, “Keeping our Word: Indigenous Sovereignty and Treaty Rights”,
https://www.irehr.org/issue-areas/treaty-rights-and-tribal-sovereignty/319-keeping-our-wordindigenous-sovereignty-and-treaty-rights, 6-9-14, DMM)
Treaty rights are inherent legal and moral rights held by indigenous nations. A treaty is a legal contract
between sovereign nations. European colonizers used treaties to legitimize the transfer of land from
tribal peoples. Treaties were also means of achieving peaceful relations and creating boundaries. Tribal
leaders often saw treaties as bringing about multi-cultural unity and relations of support and alliance.
Under the U.S. Constitution, the president can sign treaties with the advice and consent of the U.S.
Senate. Once approved by the Senate, Article 6 Section 2 of the Constitution states that "[A]ll Treaties
made, or which shall be made, under the authority of the United States shall be the supreme law of the
land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any
state to the contrary notwithstanding."
By signing treaties with tribes, the U.S. government recognized their existence as sovereign nations. This
was stated clearly in 1979 when the Supreme Court explained that "A treaty, including one between the
United States and an Indian tribe, is essentially a contract between two sovereign nations." [7]
Anti-Indian activists and politicians often describe treaties as giving rights to Indian tribes. Likewise, they
claim that treaty rights are "special rights" and that Indians are "supercitizens" as a result of treaties.
Such ideas are simply wrong.
In reality, treaties reserved rights long held by tribes. In exchange for land and other commitments
tribes secured recognition of their status and a federal commitment to encroach no further on the rights
made explicit and implied in treaties. The idea of treaty rights as reserved rights was recognized by the
Supreme Court in 1905 in U.S. v. Winans:
That is, treaties gave nothing to tribes, only to the U.S. government and its citizens. By entering into
treaties the United States obtained the land and resource base that have allowed it to become the
wealthiest society on earth.
It is important to recognize the unequal context in which treaty-making occurred. The era of treatymaking– from the colonial period to 1871 – coincided with aggressive westward expansion by
Americans, forced Indian removal and repeated wars of aggression by the United States against
indigenous peoples. While not all treaties were signed under threat of forced removal and warfare,
many were. Treaties were negotiated in English and limited inter-tribal languages, a fact used to the
advantage of U.S. treaty negotiators.[9] Treaties were sometimes altered by the Senate without tribal
approval and the United States often used treaties to "divide and conquer" tribes.[10] White settlers
also repeatedly rushed into Indian Country, with the support of the U.S. military, in express violation of
treaties – some of the continent’s first "illegal aliens."
The unequal relationship between tribes and the U.S. government during treaty-making is recognized by
the Supreme Court. As a result of this inequality and the federal "trust" obligation to act in the interests
of tribes, the Court has developed "canons of construction" used to interpret treaty cases. These canons
hold that treaties should be interpreted as they would have been understood by tribes; that ambiguities
in treaty language be interpreted liberally in support of tribes; and that treaties must be liberally
interpreted in favor of tribes. While these rules have produced favorable rulings for tribes, courts have
also ignored them in order to rule against tribes or limit tribal rights.
While the United States has legal and moral obligations to uphold treaty rights, treaty violations by
federal and state governments and U.S. citizens have been frequent. In part, these violations stem from
the fact that a legacy of colonialism continues to influence U.S. relations with Indian tribes.[11] In Lone
Wolf v. Hitchcock (1903) the Supreme Court described a congressional plenary power over tribes that
can be used to violate treaties:
The Court ruled that Congress can abrogate agreements with tribes even when doing so is a result of
fraud and misrepresentation and takes place without tribal consent.
Based on Lone Wolf and cases like it, the Supreme Court has expanded the "legal" means used to violate
treaties. While earlier cases required "explicit statutory language" to rule that a treaty had been
abrogated, in U.S. v Dion the Court ruled that Congressional abrogation can be inferred if there is
evidence that Congress "considered the conflict between its intended action…and an Indian treaty," and
then chose to resolve the "conflict by abrogating the treaty."[13] While treaty violations are often
considered wrongs committed in the distant past, the U.S. government has created both congressional
and judicial mechanisms for continuing to violate treaties with indigenous nations.
Not surprisingly, treaties continue to be violated by federal and state governments and U.S. citizens.
Treaties can be abrogated outright, as in U.S. v Dion, or violated when federal laws are imposed on
tribes and interfere with the exercise of treaty-reserved rights. The latter occurred when the 9th Circuit
Appeals Court imposed the Marine Mammal Protection Act (MMPA) on the Makah nation despite the
tribe’s treaty-reserved right to hunt whales. When five Makah men, frustrated with the pace of federal
permitting under the MMPA, hunted a gray whale in 2007, the federal government compounded this
violation by arresting them. The federal government has also allotted lands in express violation of treaty
terms (1868 Treaty of Fort Laramie with the Lakota) and assumed control of lands never ceded by treaty
(1863 Treaty of Ruby Valley with the Western Shoshone).[14]
Treaties have also been violated when treaty-reserved resources are destroyed by federal or state
governments or U.S. citizens. Washington State is presently in violation of six treaties signed in the
1850s with Pacific Northwest tribes. These treaties reserved a "right of taking fish at usual and
accustomed grounds…in common with all citizens." In 1974 inU.S. v Washington a federal district court
recognized a treaty-reserved right to one-half the fish passing through these "usual and accustomed"
tribal fishing grounds.[15] However, the ongoing collapse of Pacific salmon stocks, a result of multiple
non-Indian economic practices, violates the treaties by destroying the treaty-reserved fishery. In 2001,
twenty tribes sued Washington State over hundreds of state-constructed culverts that cut off hundreds
of miles of salmon habitat. A 2006 sub-proceeding of U.S. v Washington upheld a state obligation to
"refrain from building or operating culverts under State-maintained roads that hinder fish passage and
thereby diminish the number of fish that would otherwise be available for Tribal harvest."[16] Because
negotiations between tribes and the state failed to resolve the issue, the implementation phase of the
case will be heard in federal district court in October.
Solvency:
All is not lost—the Supreme Court can review the case for errors of law and correct
the precedent.
Stevens, 2012 (Jeremy, JD from Seattle University School of Law, American Indian Law Journal,
Volume 1, Issue 1, Fall 2012, “Of Whaling, Judicial Fiats, Treaties, and Indians: The Makah Saga
Continues”,
http://www.law.seattleu.edu/Documents/ailj/Fall%20Issue/Whaling%20Jeremy%20Stevens%20Final.pd
f, accessed July 10, 2014, DVOG)
But the Ninth Circuit for its part seems to have corrected itself and embarked upon a path destined to
either proscribe the applicability of Anderson’s use of the conservation necessity test only to assessing
the relationship between “state regulations and treaties with ‘in common’ rights,’”194or ridding itself
altogether of the Makah’s tragic, crushing millstone. Addressing a pre-trial motion195 in a case involving
whether or not the Migratory Bird Treaty Act abrogated hunting rights reserved by the Yakama Treaty,
on August 13, 2009, federal judge Edward F. Shea of the Eastern District of Washington addressed
squarely the Anderson court’s errors. “[A] court analyzing the impact of federal legislation on treaty
rights must determine whether Congress clearly and plainly intended to modify or abrogate an Indian
treaty right.” 196
Judge Shea then addressed the series of cases – Puyallup I and II and Fryberg – which develop and chart
the application of the conservation necessity test to state statutes that would infringe upon Indian
treaty-reserved rights. Judge Shea then described the weight and consideration test implemented by
Dion, noting that “while Congress has the authority to abrogate an Indian treaty right, a state does
not.”197 Although “the Ninth Circuit [in Anderson] was analyzing a federal [statute], not a state statute
or regulation, the Ninth Circuit failed to use congressional treaty abrogation analysis. This failure
conflicts with . . . basic principles of Indian treaty analysis.”198 Judge Shea noted that the Anderson
court, despite its intellectual prestidigitations, did recognize that Dion did not discuss the conservation
necessity test but the Anderson court erroneously concluded “that the conservation necessity test . . .
has not been undermined by later cases and is supported by the Supreme Court authorities.”199 This
“conclusion,” Judge Shea asserted, “was reached without analysis and is wrong. The Supreme Court
cases alluded to [in Anderson] involved state regulations and treaties with ‘in common’ rights. When the
Supreme Court has explicitly used congressional treaty abrogation analysis to interpret federal statutes,
the same analysis should be used when interpreting the same federal statutes and treaty rights.”200
Judge Shea is not alone in this belief. Writing for the District Court from the District of Nevada and
similarly called upon to address the extent to which the Migratory Bird Treaty Act may have abrogated
Indian treaty-reserved rights, Magistrate Judge Lawrence R. Leavitt similarly criticized the Anderson
fiat.201 “In assessing whether Congress implicitly abrogated a treaty right, what is essential, is clear and
convincing evidence that Congress considered the conflict between its intended action on the one hand
and Indian treaty rights on the other. [After undergoing this analysis, if Congress subsequently] chose to
resolve the conflict by abrogating the treaty . . . the proper approach,” continued Magistrate Leavitt,
“would be clear but for the Ninth Circuit’s 1980 decision in United States v. Fryberg and the application
of Fryberg’s analysis [– the conservation necessity test –] in Anderson v. Evans.”202 Magistrate Leavitt
then went on to repeat that in developing its conservation necessity test, the Ninth Circuit based its
“doctrine on various Supreme Court cases, all of which involve state conservation statutes or
regulations, and not congressional treaty abrogation power.”203 In recognizing that the Dion Court used
the weight and consideration test to determine the applicability of a congressional enactment to a
treaty-reserved right, Magistrate Leavitt was similarly careful to note that in Dion the Supreme Court
“employed an abrogation analysis in reaching its holding, without once referring to Fryberg or the statebased conservation necessity analysis [from the Ninth Circuit]. Nevertheless, eight years after Dion, the
Ninth Circuit in Anderson v. Evans applied the conservation necessity doctrine to a federal statute
without recognizing or engaging in an abrogation analysis.”204 As categorically as Judge Shea had,
Magistrate Leavitt then concluded that the “Ninth Circuit’s decision in Anderson cannot be reconciled
with the Supreme Court’s decision in Dion.”205 The Anderson Court’s conclusion that its own
conservation necessity test ought to be applied in determining the applicability of congressional
enactments to Indian treaty-reserved rights “was reached without analysis.”206
The Anderson court clearly conflated the state conservation necessity test with the federal weight and
consideration test in holding the Makah’s exercise of their treaty-reserved right to whale bound by the
MMPA. But the great tragic irony of the matter is that in defense of four whales per year of the
estimated 20,000 global beasts, three circuit judges have embarked upon a course which further erodes
tribal sovereignty and cultural identity when the absence of whaling presents devastating consequences
on Makah health and their collective psyche.207 Particularly illustrative of the ridiculousness of this fact
and the decided, intuitive injustice of it all is the quota of 120 whales per year granted by the IWC–the
recognized global expert administrative body on the California Gray Whale–to the Russian
Confederation on behalf of the Chukotka while three circuit judges sitting on a domestic American court
have prohibited the Makah from hunting four whales per year in exercise of its treaty-reserved right to
do so. Compounding the maddening injustice is that in doing this, these circuit judges have chosen to
ignore United States Supreme Court precedent in favor of applying the test the Ninth Circuit itself
developed, even when the United States Supreme Court has held that the Ninth Circuit’s test is to be
applied in determining the effect state statutes–not federal statutes–have on Indian treaty-reserved
rights. As Indian Law scholar Felix S. Cohen presciently penned 60 years ago, stifling the exercise of
much of what it means to be Makah “reflects the rise and fall in our democratic faith”208 as the Ninth
Circuit brings the Makah under the heel of “expert administrators whose power-drives are always
accompanied by soft music about the withering away of the state or the ultimate liquidation of this or
that bureau.”209
The aff also functions on a rhetorical level—criticizing court decisions and calling for
revision of bad case law is critical to understanding how the courts operate as
oppressors. The plan begins the process of reversing courts’ undermining of Native
sovereignty.
Young, Professor of Communication at Wayne State, 2005 (Kelly, “The Ghost of Moby-Dick
and the Rhetorical Haunting of the Ninth Court’s Anderson v. Evans Decision”, Communication Law
Review, Volume 10, Issue 1, http://commlawreview.org/Archives/CLRv10i1/PDFs/The_Ghost_of_MobyDick_and_the_Rhetorical_Haunting.pdf, accessed July 11, 2014, DVOG)
While other Tribal Crit accounts of the law have noted how the law stabilizes and evokes whiteness to
defend contemporary European-Native American relations, the analysis of the Anderson decision
elucidates how important it is to reveal how whiteness infiltrates the court in seemingly small and
unexpected ways. For instance, Tribal Crit scholars such as Robert Clinton and Robert Porter contend
that the entire foundation of federal policy is rooted in white colonialism, which suggests a certainty and
intentionality of racism within the legal system.90 Yet, the reasoning found in the Anderson case and
many other Native American decisions demonstrate that the courts act in very incremental, confusing
and contradictory ways that “appear” far more accidental and hesitant.91 In the presence of such
confusion and uncertainty, whiteness emerges in a seemingly innocent fashion as a sense of normality
that guides the courts’ decisions. While Tribal Crit provides powerful means to evaluate the white
colonial effects of broad and new judicial doctrine changes, it has yet to explicate the more subtle ways
that Native American law is transformed through rhetorical maneuvers masked as sensible precedence
and presumption. Furthermore scholars must avoid the common problem of treating the courts as
impartial and politically-insulated entities. For too long, as Lucaites points out, the communication
studies discipline has treated the law as a sacred cow.92 In other words, communication studies has
often failed to appreciate how the courts’ discourse legitimates and masks its role in undermining Native
American sovereignty. Instead, our discipline tends discipline tends to examine the courts as a context in
which certain speakers or genres of speech operate.
Until we incorporate a more critical interrogation of the political nature of the legal system,
communication studies’ analyses of the law and its impact will be, at best, ineffective and, at worst,
counterproductive.
These shortcomings found in Tribal Crit and Communication Studies suggest why a combined
rhetorical/Tribal Crit approach, such as the one used in this study, is important to elucidate how the
courts and the law undermine Native American sovereignty. In examining the discursive maneuvers
made in Anderson v. Evans, we observe how whiteness appears and becomes legitimized within the
courts’ rhetoric. What makes the Anderson decision quite fascinating is that whiteness in this court’s
decision is not hidden at all in actuality; instead, it surfaces as a large, terrifying (white) whale in the
opening epigraph of the court’s written opinion. While it could be tempting to dismiss the literary
allusions to Moby-Dick as mere rhetorical embellishment, the analysis offered here demonstrates that
the sublime discourse of Moby-Dick seems to be the only clear logic that the court is following.
Furthermore, while the Anderson decision is a rather unique and narrow example of this type of
discourse because it is only about one Native American controversy in one decision, it offers a rare and
highly illustrative opportunity to see the court’s response to multicultural difference in a globalized era.
Obviously, not all courts or justices will utilize the same rhetorical technologies, but signs of allusions,
metaphors, and other cultural references within legal decisions may give important clues as to how the
court privileges whiteness to undermine Native American and other minoritarian attempts to secure
legal remedies.
Sovereignty Extensions
Compliance with the MMPA requires the NOAA and the Makah to file Environmental
Impact Statements and to continually re-apply for permits, binding the Makah to
bureaucratic obstacle courses which result in denying them access to whaling.
Stevens, 2012 (Jeremy, JD from Seattle University School of Law, American Indian Law Journal,
Volume 1, Issue 1, Fall 2012, “Of Whaling, Judicial Fiats, Treaties, and Indians: The Makah Saga
Continues”,
http://www.law.seattleu.edu/Documents/ailj/Fall%20Issue/Whaling%20Jeremy%20Stevens%20Final.pd
f, accessed July 10, 2014, DVOG)
And so in September of 2003, having worked closely with federal agencies “on marine mammal issues
for over fifteen years, the Makah Tribe formally instituted a Marine Mammal Management Program” of
its own.170 The Tribe intended to monitor marine mammal populations, particularly the Eastern North
Pacific stock of gray whales, within its usual and accustomed whaling areas171 and to develop
regulations “regarding marine mammals that might be stranded in Makah territory or be caught as
incidental bycatch in the Tribe’s fisheries.”172 Paramount among the program’s motives was to “reduce
incidental mortality of marine mammals . . . and look at ways to reduce harm to gear.”173 The program
scheduled and oversaw “marksmanship training”174 for hopeful whaling crews and for the next three
years would participate in survey operations, charged with identifying gray whales by visual
observations and aerial photographs.175
In 2004, the Makah Program began to participate in the IWC Scientific Committee meetings–sending its
marine biologist to participate in the meetings as a United States delegate–and this collaboration
“continued in 2005 and 2006.”176 In 2004, the Makah marine biologist was invited to join a “research
project that documented and monitored contaminants in marine mammals collected” in the Makah’s
usual and accustomed whaling grounds.177 Having become of its own accord entirely satisfied that
resuming its treaty-reserved whaling practice yet again would pose absolutely no deleterious effects on
the global California Gray Whale population, on February 14, 2005, the Makah sent NOAA Fisheries a
request for a limited waiver of the MMPA take moratorium, including the issuance of regulations and
any necessary permits. The application submitted explicitly explained the Makah’s request, the
applicable law, the international California Gray Whale populations, and the impact Makah whaling may
have on the California Gray Whale population.178 In response, NOAA published a notice of availability
of the waiver request on March 3, 2005 179 and the process began anew for the third time. On August
25, 2005, NOAA Fisheries published a Notice of Intent to conduct public scoping meetings and to
prepare the EIS required under NEPA, the MMPA and Anderson, related to the Makah Tribe’s request to
resume its treaty-reserved practice of whaling.180
Initially, NOAA proposed that its updated draft EIS would be ready for public comment in December of
2006 and that the final draft EIS would be complete “in August or September” 181 of 2007; the
comment period would then begin and a final document, and a final decision, would “follow eight to ten
months later, in the summer of 2008.”182 But not until nearly three years later, on May 9, 2008, did
NOAA Fisheries announce the release of a draft EIS, and the comment period began.183 And even now,
more than four years after the comment period began, NOAA has still failed to make a final
determination.
Of particular importance to NOAA’s consideration of the Tribe's request is information on the genetic
structure of the Eastern Northern Pacific Stock of Gray Whales. Three “Technical Memorandums”184
currently under consideration implicitly argue that the 2008 Draft EIS is insufficient for failing to address
the possibility that the Eastern North Pacific stock185 of the California Gray Whale is sufficiently isolated
from the rest of the global population to merit a new Draft EIS. The majority of California Gray whales
migrate north to “summer feeding grounds in the Bering, Chukchi, and Beaufort Seas [while] a small
number of individuals [of about 200] spend the summer feeding in the waters ranging from northern
California to southeast Alaska.”186 The scientific/academic community commonly regards the former
constituency as the northern feeding group and the latter as the southern feeding group. A California
Gray whale learns from its mother “site fidelity to different feeding grounds.”187
Because California Gray whale calves have through the ages learned from their mothers what and
where a feeding ground is, one memorandum contends that “knowledge of specific feeding areas is only
present within certain matrilines. Therefore, if whales are extirpated from a specific feeding ground,
they will not be ‘replaced’ (or the area will not be repopulated) by others.”188 The memorandum also
demonstrates that there are very slight mitochondrial differences extant between the northern and
southern feeding groups and argues that these differences predate whaling.189
Accordingly, because with the extirpation of the 200 whales which the authors presume comprise the
southern feeding group, the strain of whales possessing that slight mitochondrial distinction will not repopulate. The authors themselves concede that there is some degree of migration between the
northern and southern feeding groups, but assert that “although reliable estimates of migration rates
could not be obtained here, the data clearly show that rate of migration is low enough for the two
groups to represent independent demographic entities.”190 The authors then conclude that the
southern feeding group consequently “qualifies as a separate management unit, and requires separate
management considerations.”191While the Memorandum does not state exactly what these
considerations should compel, all they can compel is another EIS.
Taking the authors’ contentions to be true, the authors still fail to address the near extirpation of the
species and the geographic size of the southern feeding group’s southern feeding grounds. Consider the
following: if the southern feeding group is a distinct “management unit,” as the authors contend, and if
once extirpated cannot repopulate, then the near extinction of the entire global population of California
Gray Whales failed to eliminate that small southern feeding group. But somehow the Makah’s hunting
of four whales per year–not necessarily killing four whales per year–when the northern feeding group is
also passing through the Makah’s usual and accustomed whaling areas bound for their winter feeding
grounds is a sufficiently grave threat to the population of a presumed amount of 200 whales, is enough
to merit an entirely new Draft EIS. Further, by the author’s own admission, the southern feeding
grounds of the southern feeding group extends from “northern California to southeast Alaska.”192 But
the Makah’s usual and accustomed whaling areas is an area that does not extend south of the Olympic
Peninsula.193
Still more maddening is that to combat this kind of scientific speculation and murkiness, courts past
have fashioned the Canons of Treaty Construction and developed from them the federal weight and
consideration test. The recent “Technical Memorandums,” are stultifying the current NOAA process. The
potential result of yet another Draft EIS demonstrates just a handful of consequences attending three
judges’ decision to bind the Makah’s treaty-reserved right to whale to the rubric of the conservation
necessity test, in defiance of Supreme Court precedent.
The USFG has repeatedly oppressed Native Americans, threatening their culture
Tanner, co-coordinator of Borderlands Research and Education, 2009
(Charles Tanner Jr, 9-18-09, “Keeping our Word: Indigenous Sovereignty and Treaty Rights”,
https://www.irehr.org/issue-areas/treaty-rights-and-tribal-sovereignty/319-keeping-our-wordindigenous-sovereignty-and-treaty-rights, 6-9-14, DMM)
While nationhood and sovereignty are facts of indigenous political existence, and despite Marshall’s
high-sounding words, the U.S. government has never fully respected tribal sovereignty – an unfortunate
legacy of its colonial origins. A cornerstone of federal Indian law remains the so-called Discovery
Doctrine, an 11th century papal "theory" by which Christian states justified extending their reach into
the lands of "heathens" and "infidels."[2] This doctrine was written into U.S. law in 1823 when John
Marshall wrote:
The United States…have unequivocally acceded to that great and broad rule by which its civilized
inhabitants now hold this country…They maintain, as all others have maintained, that discovery gave an
exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest…"
(emphasis added)[3]
Congress claims a "plenary power" over Indian nations that it has used to terminate tribes, violate
treaties and expropriate tribal lands. Under this assumed "power," Congress began seizing jurisdiction
over "major crimes" on reservations in 1885 and, in the 1950s, terminated more than 100 tribes and
imposed some states’ laws on Indian Country.
Alongside the Marshall Court’s recognition of tribal political status, and a ban on extending state law
into Indian Country, Marshall termed tribes "domestic dependent nations" whose relationship with the
United States "resembles that of a ward to his guardian." [4] The designation of tribes as "dependent"
has since been used by the Supreme Court to strip tribal governments of criminal jurisdiction over nonIndians and civil jurisdiction over non-Indians on non-Indian owned property on reservations.[5] The
Supreme Court continues to use the 1887 Allotment Act – a law that opened tribal lands to white
settlement – to justify extending state jurisdiction over Indian lands.[6]
This legacy of colonial law and practice has placed serious obstacles in the path of tribal selfdetermination. It undermines tribal efforts to protect tribal members from violence by non-Indians,
defend Indian lands from damage by profit-seeking corporations and develop healthy economies.
Environmental racism persists as tribal peoples and lands face threats from ongoing and past mining
operations; destruction of habitat for species important to tribal sustenance and culture; nuclear testing
and storage; and threats to tribal water rights. Tribes continue to fight for the return of the remains of
their ancestors and preserve important religious and cultural sites from destruction.
Despite such injustices, tribes continue to exercise and fight for political sovereignty. As a result of tribal
sovereignty tribes work to manage and protect their natural resources and lands; develop their
economies; defend their cultures and spiritual practices; hunt, fish and gather traditional foods and
medicines; and promote the preservation of tribal languages, among other things.
U.S. citizens also benefit from tribal sovereignty when jobs are created by tribal enterprises and
governments or when the power inherent in tribal sovereignty is used to protect the environment. By
exercising tribal sovereignty, tribes have improved fisheries management in Washington State through
co-management with state agencies and engage in numerous habitat restoration projects with local
governments and non-Indian community members. Tribes exercising political sovereignty have been a
driving force in efforts to save collapsing salmon populations in the Pacific Northwest.
Respecting tribes sovereignty is critical to securing the rights of indigenous peoples
throughout the world:
Dean B. Suagee, 1992 (J.D., University of North Carolina, University of Michigan Law School,
University of Michigan Journal of Law Reform, 25 U. Mich. J.L. Reform 671, Lexis, Accessed July 6, 2009)
Knowledge of this historical context is also needed if the United States government or the American
people or both are to become forces for securing the human rights of indigenous peoples throughout
the world. Two important lessons from the United States' experience that should be shared with the
rest of the world are that (1) policies of forced assimilation, such as the policies of the allotment and
termination eras, have yielded disastrous results; and (2) policies that support tribal self-government
can work, especially when they include the basic legal principle that tribes possess inherent sovereignty.
After more than two hundred years of relations with both federal and state governments, Indian tribal
governments have earned the right to be treated as permanent features in the American political
landscape.
By preventing the Makah from whaling, animal rights activists are subjugating the Makah culture to
their views, condemning them to further cultural decimation
Weinbaum, 2000 (Michael, scholar at University of Michigan, 2000, “Makah Native Americans Vs.
Animal Rights Activists” http://www.umich.edu/~snre492/Jones/makah.htm
For nearly two thousand years, the Makah Native American tribe of the Pacific Northwest based its
cultural existence on the gray whale. The whale was a form of sustenance, used for clothing and the
making of fine handicrafts. Although the Native Americans hunted the gray whale, they respected the
power and beauty of the large beast. The hunter was seen not only as strong and daring; he was
honored for a relationship that would allow him to kill a whale. (Goddard 1) The Makah used all parts of
the whale including its oil, which was often used as a determinant of wealth. The whale was also used as
bride price for the making of gifts and trade between other tribes. Rituals, customs and monetary value
were all reasons for the necessity of the whale hunt. The whale hunt was the foundation of Makah
culture (Johnson 4). In 1855, the United States territorial governor, Isaac Stevens, recognized the Makah
when attempting to annex the Olympic Peninsula. In exchange for their land, Stevens agreed to the
demands of the indigenous people. He respected the Makah. The great father knows what whalers you
are-how you go far to sea to take whale. (Johnson 2)Stevens promised the tribe United States assistance
in promoting whale commerce. He helped ratify the Treaty of Neah Bay in 1855, a treaty protecting the
Makah right to whale. Unfortunately, by the early 1900s, commercial whaling became a profitable
business. Recognizing the reduction in whale population, the Makah gave up whaling in the 1920s when
commercial whaling was at its peak. This was done out of respect for the species well being. By 1946, an
international agreement placed the gray whale on the endangered species list. Without the whale in
their life, the Makah culture suffered and it was difficult to teach the songs and dances to the
generations that have not whaled. (Stevens 2) From the 1920s until the late 1990s, the Makah
experienced the decimation of their way of life. Many of the tribe became alcoholics and lost the sense
of community that hunting the gray whale helped provide. In the late 1990s, when the gray whale was
removed from the endangered species list, the Makah people wanted to reclaim the tradition that was
lost to them since the 1920s. The 70 year break of non-whaling left a hole in our traditional circle. Now
the circle is complete, said Arnie Hunter, vice president of the Makah Whaling Commission (Stevens 1).
The Makah people believe that the problems affecting the younger members of their tribe today is a
result of lacking discipline and cultural continuity (Johnson 1). The tribe is hopeful that whaling will
restore this. The tribe also believes that the deterioration of the health of many community members is
a result of the loss of their traditional seafood and sea-mammal diet, which has debilitated with the end
of Makah whaling in the 1920s (Johnson 1). Today, the Makah deem they have a responsibility to fulfill
their heritage and restore a part of their culture elusive to them for over seventy years. Back to Table of
Contents Problem: In 1998 the Makah, seeking to resume their tradition of whaling, faced fierce
opposition from environmental and animal rights groups such as the Sea Shepherd Conservation Society
and The Progressive Animal Welfare Society (PAWS). These organizations claim that the Makah intend to
sell whale meat on the open market and do not have a need to hunt the gray beast because the animal
is not necessary to the survival of the people (Rossiter 1). The Makah nation refutes this wholeheartedly.
In a letter printed in the Seattle Times, the president of the whaling commission, Keith Johnson, explains
that the claims of these groups are unfounded due to the tribe being bound to tribal and federal law not
to sell any whale meat. The tribe whales only for cultural need and because it is their right under the
treaty they signed in 1855 (1). In addition to staking their claim as a whaling nation, the Makah use
concrete scientific evidence to back-up their belief that hunting gray whales will not harm the
population at large (See Demographics). Through hunting a maximum amount of five gray whales per
year, the Makah stress that they will be doing no harm to the worlds whale population. These activists
make persistent claims regarding the Makah planned slaughter of five whales. However, what these
protestors fail to acknowledge in their written statements is that these Native Americans do not
necessarily plan to kill five whales, but rather take only what is needed in order to survive and continue
their way of life (Johnson 1).Animal rights activists also claim that the hunt is done in a manner that is
inhumane. However, the Makah argue that their hunting methods will lead to almost instantaneous
death of the whale, causing as little pain as possible for the creature. The tribe refutes the notion that
they are killing the animal for the power. Despite all of the claims made by groups opposing the hunt,
the most damaging of these attacks is the refuting of Makah culture. The Makah people believe this
attack, in particular, is unwarranted and that they are being harassed for any connection to modern life
the tribe wishes to aspire to; they [the activists] cite our lighted tennis courts Federal Express...and
other amenities Well, excuse me! I want to tell PAWS [Progressive Animal Welfare Society] that the two
tennis courts on our high school grounds have no lights. How about the fact that Federal Express makes
deliveries to our reservation? Does that mean we have lost our culture? (Johnson 4) The problem
resulting from all of the claims made by animal and environmental activists is that organizations such as
Sea Shepherd and PAWS want the Makah to rise to a higher level of culture through not partaking in a
practice that, until the 1920s, was on-going within the tribe for almost two millennia. The activists are
basically saying that the Makah are a lesser race of people because they choose to whale. This
statement has a racist underlying assumption that attacks not just the present day Makah people but
their culture, history and forefathers as well. Through berating and attacking the Makah people, animal
rights activists are out of line in their assaults on these indigenous Native Americans for wanting to
whale after a nearly 80 year hiatus (Johnson 4). This is an environmental justice issue because activist
groups are disallowing the Makah to reach their full potential. They are subjecting these people to the
isms of society (Bryant 6). Environmental Racism against the Makah is taking place. The indigenous
people living in an area, overtaken by a white-European based government 150 years ago, are subjected
to the beliefs of left-wing activists today. These activists fail to take into account the decimation of these
Native peoples sustenance because of commercial whaling around the world. Now, seventy years later,
protestors fail to recognize the need for cultural continuation of the Makah and attack these native
people.
Whaling is an important cultural and spiritual ritual for the Makah Tribe, but is currently restricted by
court rulings
Schabner, 2002 ( Dean, weekend manager and editor at ABC news, May 29 2002, “Save the Whales,
Kill a Culture?”, http://abcnews.go.com/US/story?id=90125&page=1&singlePage=true)
For the Makah, whaling is a tradition dating back centuries, but one animal protection group says that in
the modern world, there is no place for such "recreation." The Fund for Animals, the Humane Society of
the United States and other groups have been waging a legal battle to keep the Makah, an American
Indian tribe who live along the coasts of the Olympic Peninsula in Washington state, from rowing out
from the shore in traditional dugout canoes and hunting whales in a manner very much the way their
ancestors did. Opponents of the hunt say the Makah should not be allowed to kill whales because,
unlike some tribes in Alaska and northern Canada and the indigenous people of parts of Russia, they do
not need whale meat to survive. They characterize the Makah hunt as sport or recreation, and discount
the tribe's claim that whaling is culturally important to them. "That's incredibly insulting and racist," said
Janine Bowechop, the director of the Makah museum. "For them to determine what it means to us
brings us back to the last century when it was thought that Indians could not speak for themselves and
determine what things mean to us. I would not pretend to determine what something means to another
culture." She said that despite the 70 years when the tribe did not have a whale hunt, it is still "a regular
and important part of our lives." "There are lots of strengthening values associated with whaling," she
said. "There are lots of spiritual values that feed sharing and cooperation among our community. And it
connects us with the ocean in ways that Makahs have always been connected with the ocean."
Navigating Legal Waters While commercial whaling has come a long way since the days of Moby Dick,
when men took their lives in their hands trying to harpoon whales and drag them down from small
boats, the Makah hunt is in many ways unchanged. The biggest difference, the Makah say, is that now
they use high-powered rifles instead of harpoons to kill the whale — a change they made to limit the
suffering of the whales they catch. If, that is, they catch one. In the five years since the Makah have
been allowed to resume their hunt, they have caught one whale, and have spent more time navigating
turbulent legal waters in the courts than fighting ocean waves in their dugout canoes. The Makah may
be nearing the end of their legal fight, though. On May 17, a federal judge in Tacoma, Wash., refused to
issue a restraining order to stop the Makah from whaling until a decision is reached in the animal rights
groups' lawsuit against the National Oceanic and Atmospheric Administration and the National Marine
Fisheries Service, and the Commerce Department — agencies that cleared the way for the tribe to
resume the hunt. In the suit, the groups claim that the agencies did not do a thorough job of assessing
the potential impact of Makah whaling — both on the whale population and on public safety, because of
the risk of stray bullets as the whalers try to shoot their prey. Judge Franklin Burgess said in his ruling
that the lawsuit is unlikely to succeed, since there is no evidence that the Makah hunt will have any
impact, other than the "aesthetic, emotional" effect on the animal rights groups.
Whaling is an important cultural experience to the Makah tribe, and was even
protected by the USFG in 1855
Official Website of the Makah People, no date ( makah.com is the official website of the
Makah tribe, no date, “Makah Whaling – A Gift from the Sea”, http://makah.com/makah-tribalinfo/whaling/)
Whaling and whales are central to Makah culture. The event of a whale hunt requires rituals and
ceremonies which are deeply spiritual. Makah whaling the subject and inspiration of Tribal songs,
dances, designs, and basketry. For the Makah Tribe, whale hunting provides a purpose and a discipline
which benefits their entire community. It is so important to the Makah, that in 1855 when the Makah
ceded thousands of acres of land to the government of the United States, they explicitly reserved their
right to whale within the Treaty of Neah Bay. Makah whaling tradition provides oil, meat, bone, sinew
and gut for storage containers: useful products, though gained at a high cost in time and goods.
NEAH BAY — A 7-year-old study on the potential environmental impact of Makah whaling is being
ditched, the federal government announced. The National Oceanic and Atmospheric Administration,
National Marine Fisheries Service and Department of Commerce issued a “notice to terminate” the draft
environmental impact statement Monday. This is the latest development in lengthy legal battles over
the Makah tribe's treaty right to hunt whales — and comes only days after the 13th anniversary of a
Makah whaling crew legally killing a gray whale off Neah Bay. The agencies said they will start again,
based on new evidence indicating that what opponents call “resident” gray whales off the Washington
coast may be a genetically distinct, smaller cetacean subpopulation that needs to be managed — and
protected — separately from the overall population of Eastern North Pacific gray whales. A new study
will be prepared in light of “substantial new scientific information,” the notice said. The new draft
environmental impact, which will replace a draft begun in 2005 and completed in 2008, likely will not be
completed until 2013, NOAA spokesman Brian Gorman said Tuesday. “I'm sure the Makah are tapping
their feet, saying, 'When is this going to end?'” Gorman said. Tribal Chairman Micah McCarty said
Monday the Neah Bay-based tribe may release a prepared statement about the federal notice.
Scrapping the draft EIS may further delay a determination on the tribe's 2005 request for a limited
waiver of a whaling moratorium imposed under the Marine Mammal Protection Act. The waiver would
allow the tribe to exercise its right to hunt whales under the 1855 Treaty of Neah Bay. The Makah are
the only tribe in the United States with a treaty expressly guaranteeing the right to whale. The tribe's
whaling tradition dates back at least 1,500 years. Tribal members voluntarily stopped hunting whales in
the late 1920s when they became endangered. When the animals came off the endangered species list
in 1994, the tribe again sought to exercise its right to whale. On May 17, 1999, Makah tribal members in
a cedar canoe successfully harpooned a 30-foot gray — the tribe's first whale in more than 70 years —
amid anti-whaling demonstrations. There was an unsuccessful whale hunt in 2000 before court cases
put the tribe's hunts on hold indefinitely. The 9th U.S. Circuit Court of Appeals ruled in 2002 that in
order to hunt again, the tribe needed a waiver from the Marine Mammal Protection Act. The ruling was
reaffirmed in 2004. An illegal hunt in September 2007 resulted in the death of gray whale, federal prison
sentences for two Makah tribal members and demands by some wildlife and animal-rights groups that
the tribe be forever banned from whaling. The new federal notice includes five alternatives: no action;
waive the moratorium; allow hunting in offshore waters at least 3 miles from shore; a June 1-Nov. 30
hunt only; and an “adaptive management hunt” that would allow flexibility in permit terms, hunting
seasons, allowable levels of whales struck and lost, and flexibility in landed whales up to the levels
proposed by the tribe. NOAA's notice “is simply giving more information to the public on how the
agency is going to respond to the waiver application,” Seattle attorney Brian Gruber, representing the
tribe, said Tuesday. The notice “does not make any conclusions about any of the science,” he added. But
whaling opponent Margaret Owens of Joyce, a co-founder of Peninsula Citizens for the Protection of
Whales, said the new studies prove there are resident whales that ply the Washington coast that must
be protected. “They are genetically distinct, which means those mothers have been bringing their calves
here for so many untold generations,” Owens said. “They are a legitimate subpopulation that needs to
be managed separately from the main group,” she said. New scientific evidence regarding the whale
population that would be hunted by the Makah also might force the tribe to reapply for the whalingmoratorium waiver, Gorman said. The tribe wants to harvest up to 20 gray whales from the Eastern
North Pacific gray whale population in any five-year period to a maximum of five whales annually. But a
new feeding group has entered the picture: the Pacific Coast Feeding Group of whales. It is a subgroup
of Eastern North Pacific whales that Gorman said was not known to exist in 2005, when the Makah
applied for the waiver. The Pacific Coast Feeding Group “may warrant consideration as a separate
management unit,” the federal notice said. “More recently, researchers tracking and sampling gray
whales discovered that at least some individuals from summer feeding grounds utilized by the
endangered western stock migrate across the Pacific and into areas used by [Eastern North Pacific] gray
whales,” including in the Makah's usual and accustomed hunting areas, the notice added. Fewer than
100 western gray whales are known to exist, according to the Natural Resources Defense Council.
Included in the new EIS will be a review of a June 2010 study by Canadian scientists Jim Darling and Tim
Frasier, Gorman said. The study concluded that 200 gray whales that annually feed during the summer
in areas that include the Washington coast and Clayoquot Sound off Vancouver Island “have a separate
identity” within the approximately 20,000 whales in the Eastern North Pacific group. DNA tests showed
that the offspring of those whales return to feeding grounds visited by their mothers. “When it comes
time to declare a quota, we are going to scream bloody murder,” Owens said, claiming that a subgroup
of the approximately 200 resident whales cited by the Darling-Frasier study “is faithful to our waters.”
The federal government gave the Makah permission to hunt, and the tribe received its quota from the
International Whaling Commission, whose International Scientific Committee is scheduled to meet this
summer and conclude its review of gray whales by June 23, a review that will be considered at the IWC
annual meeting that ends July 6. The new EIS will include information from the IWC meeting and public
input. “We don't know if there are resident whales,” Gorman said, adding that even if there are, the
Makah still may be allowed to hunt them. “We are taking the assertions that this is a resident
population seriously, and we will incorporate all of that into our final EIS.”
AT: Anthro
The environmental movement privileges whales over other animals—turns the alt.
Van Ginkel, Anthropology Senior Lecturer at University of Amsterdam, 2004 (Rob, “The
Makah Whale Hunt and Leviathan’s Death: Reinventing Tradition and Disputing Authenticity in the Age
of Modernity”, Etnofoor, Volume 17, No ½,
http://www.jstor.org/discover/10.2307/25758069?uid=24956&uid=3739960&uid=2&uid=3&uid=67&ui
d=24955&uid=62&uid=3739256&sid=21104306615977, accessed 7/11/2014, DVOG)
Whales have become potent symbols of environmentalism as is evidenced by the successful 1970s ‘Save
the Whales’ Greenpeace campaign. Whales turned into the poster child for conservation. The antiwhaling rhetoric of many environmentalist organizations is an important source of revenues. Whales are
powerful fundraisers. They are invoked ‘as a metaphor for all that is sublime in nature’ (Gupta
1999:1742).Whales have increasingly become ‘charismatic’ or ‘flagship’ species (Kinan and Dalzell 2003).
The environmental movement has totemized cetaceans that have come to represent the ‘goodness’ of
nature. Though not all whale species are threatened with extinction, they are often lumped together as
the endangered whale that needs human protection. Moreover, certain characteristics – including
intelligence and sentience – are often attributed to this mystified ‘super whale’ (Kalland 1992, 1993,
1994) and supposedly make it akin to human animals. Some traits of differentwhale species are lumped
together and projected onto this fictive marine mammal that is believed to be at or near the apex of a
symbolic hierarchy in the animal world. The iconic status of whales and dolphins that evolved out of the
environmentalists’ campaigns led to anthropomorphizing cetaceans. They were incorporated in human
society first by keeping them in oceanariums, then by turning them into film and TV heroes
(Flipper,Willy the killer whale) and stuffed toys. Whales became ‘pets’. Individual whales were also given
names. For example, several so-called ‘resident’ gray whales in the Strait of Juan de Fuca became known
among activists as Buddy, Monica or Neah (Sullivan 2000:125). The assumption that several whales were
‘resident’ was in itself an important issue in contesting the whale hunt.
In short, environmentalists, whale-watchers, whale-huggers, and the public at large have come to see
whales not as a source of food and other products, but as sacrosanct gentle giants, representing a better
kind of near-humanity. ‘My family, not your dinner!’ were the words on a protest banner. Some even
regard whales as being superior to human beings. For instance, an opponent of the Makah whale hunt,
computer expert Roedy Green, wrote this on his Website: ‘Killing a whale is a more serious sin than
killing a human because whales are superior beings to us. They have brains much larger than ours. They
are simply better creatures. [: : :] Killing whales is more barbaric than cannibalism.’48 Though this is a
rather extreme example, many believe that there is a very thin line that divides human beings from
whales. Nature is thus incorporated into the cultural realm. What we have here is a special case of
speciesism (cf.Dunayer 2004), the notional act of assigning different values or rights to beings on the
basis of their biological species where usually human beings take top rank positions. The species that are
imbued with special rights and moral values nowadays certainly include whales. With a variation on
George Orwell’s Animal Farm: animals are equal, but some animals are more equal than others.
But nature is only partly incorporated in the cultural realm; in some respects, it is at the same time
relegated a place outside it. The direct human relationship to nature has been repressed thoroughly.
Western urbanites are disconnected and alienated from the killing and butchering of animals (Vialles
1994). What goes on in abattoirs is meticulously kept from the public eye and the vacuum-sealed chunks
of meat and fish sold in supermarkets are hardly recognizable as parts of once life animals. For example,
Seattle Post-Intelligencer columnist Susan Paynter wrote: ‘I felt queasy seeing self-righteous protesters –
most of them non-Indian urbanites removed from nature and the process that results in Big Macs. Sternlipped, they scolded the Makah to find another, less barbaric way to recapture their pride.’49 Some
Makah also referred to the disengagement of Western urbanites from food procurement and raised the
question of whether killing a whale was worse than fattening calves, confining them in stalls, so that
restaurants can offer a tender piece of veal.50
Links to our sovereignty advantage—culture is an evolving process and the Makah can
both be linked to the past and use modern conveniences; failure to understand this
leads to cultural genocide and western imperialism.
Van Ginkel, Anthropology Senior Lecturer at University of Amsterdam, 2004 (Rob, “The
Makah Whale Hunt and Leviathan’s Death: Reinventing Tradition and Disputing Authenticity in the Age
of Modernity”, Etnofoor, Volume 17, No ½,
http://www.jstor.org/discover/10.2307/25758069?uid=24956&uid=3739960&uid=2&uid=3&uid=67&ui
d=24955&uid=62&uid=3739256&sid=21104306615977, accessed 7/11/2014, DVOG)
Apart from the above-mentioned issues, a considerable part of the debate relates to matters of tradition
and authenticity. Whereas whales were made human, whale hunters were demonized as savage brutes.
Opponents of the whale hunt believe that traditional subsistence is at odds with modernity and should
be restricted to people wholly dependent on it. They often refer to ‘barbarism’ and ‘barbaric traditions’,
to some extent harking back to the dogmas of evolutionism (not a particularly modernist epistemology
for that matter). For example, geographer PeterWalker raises the question of ‘whether killing whales is
indispensable for revitalizing Makah culture, and whether this goal outweighs the moral and political
costs’ (1999:8). He clearly does not think so, alluding to the ‘inevitability’ of cultural change which ‘calls
into question the idea of an unbreakable, unchanging cosmological circle between whaling and Makah
culture’ (ibid.:9). Others, however, think that cultural change – for example by adopting conveniences
and gadgets from the outside world – has compromised the ‘purity’ of Makah culture (cf. Martello
2004:270). Another aspect that has received much criticism is the use of contemporary equipment and
gadgets of modernity, which in the view of environmentalists ‘prove’ that the gray whale hunt is not
traditional. The utilization of new technology – even though this may only be auxiliary – is considered a
breach of tradition that deprives the Makah of still being ‘true’ Makah. Traditions are thus trivialized and
restricted to a toolkit, rather than associated with a complex of beliefs, symbolic meanings, social
structures, and practices that are culturally significant. It is not the tools that count, but the goals
pursued with the whale hunt.
Exact replication is not a necessary condition to produce authenticity (Sepez 2002:153). Moreover,
‘[e]xpecting cultures to remain static and cling to traditional methods is both presumptuous
(demeaning) and unrealistic’ (Reeves 2002:98). The environmentalists’ perception is rooted in romantic
notions of Indian-ness. At the heart of the controversies vis-`a-vis the Makah whale hunt are the
processes of authenticating and discrediting identity: ‘Who gets to control the expression of Makah
identity – both its legitimacy and legality? Who gets to decide what is “cultural,” “traditional,” or
“necessary?”’ (Erikson 1999:564). As Gupta relates, ‘most critiques of “tradition” as an insufficient
justification for sidestepping international norms ignore the importance of the way in which “barbaric”
traditions are exercised’ (1999:1755, n.72). Most societies have traditions that may be regarded as such,
and it is problematic when ‘traditions are forcefully quelled by an extraneous majority’ (ibid.). The
Makah are well aware of the manner in which their cultural claims are berated and do not acquiesce.
For instance, when some environmental organizations depicted the whale hunt as sport or recreation,
Janine Bowechop said to a reporter: ‘That’s incredibly insulting and racist. : : : For them to determine
what it means to us brings us back to the last century when it was thought that Indians could not speak
for themselves and determine what things mean to us. I would not pretend to determine what
something means to another culture.’51 Part of the opponents’ argument is that if a society has partly
adapted culturally to modernity, it should do so wholly and give up its traditional aspects. Indeed, the
whole idea of what the tradition should be was appropriated by some of the contestants of the Makah
whale hunt. Paul Watson, for example, said after the Makah killed the gray whale: ‘People are dancing
and cheering. That’s a far cry from 150 years ago when their ancestors were more sad and somber after
a whale hunt. : : : They can celebrate and dance in the streets. We’ll do what their ancestors did. We’ll
mourn for the whale.’52 From the very onset of the Makah’s attempts to hunt whales, Watson disputed
the authenticity of their pursuit, saying their ancestors hunted to survive not out of ‘cultural or
traditional impulse’.Without the survival issue, ‘the hunt is an act of make-believe, an empty gesture
toward a vanished past with only one component that will have a real, immediate meaning: The violent
death of a living creature that has every right to be left alone.’53 Watson and his compatriots seemingly
attempt to legitimate a moral stance (‘killing whales is wrong’) by invoking a moral image of how natives
ought to behave according to their culture (‘adapt to modernity completely or wholly return to your
traditions’). The message conveyed seems to be that once you have assimilated, you have lost your right
to maintaining or revitalizing a tradition.
Again, the Makah responded. Keith Johnson, President of the Makah Whaling Commission, wrote that
the Makah ‘don’t take kindly to other people trying to tell us what our culture should be. [: : :] To us the
implication that our culture is inferior if we believe in whaling is demeaning and racist.’54 Tribal Council
Chairman BenJohnson got tired of the criticism that the hunt was not traditional and said to a reporter:
“’Liberals” seem always to want to fit Indians into a safe, acceptable ideal of the noble savage, and are
uncomfortable when modern methods can be adopted to achieve ancient aims. : : : Times change and
we have to change with the times. : : : They want us to be back in the primitive times. We just want to
practice our culture.’55 The Makah received widespread support from other Indian tribes, and from the
Coalition to End Racial Targeting of American Indian Nations (CERTAIN). For example, James Michael
Craven of the Blackfoot Nation wrote: ‘Watson simply and summarily arrogates to himself the right to
define and declare what cultures and practices are worth preserving, what treaties are worth respecting
and defending, what Faustian bargains with the forces of evil are defensible and yes, even what forms of
life are worth any sacrifice to protect. Apparently Indians are not on Watson’s “close-to-extinction”
list.’56
Environmentalists force the Makah into a Noble Savage double bind—either they
must give up their culture or remain totally locked in the past. The alternative is the
affirmative’s vision of culture which allows for ties to the past to coexist with
modernity in cultural evolution.
Van Ginkel, Anthropology Senior Lecturer at University of Amsterdam, 2004 (Rob, “The
Makah Whale Hunt and Leviathan’s Death: Reinventing Tradition and Disputing Authenticity in the Age
of Modernity”, Etnofoor, Volume 17, No ½,
http://www.jstor.org/discover/10.2307/25758069?uid=24956&uid=3739960&uid=2&uid=3&uid=67&ui
d=24955&uid=62&uid=3739256&sid=21104306615977, accessed 7/11/2014, DVOG)
The normativism, cultural imperialism and ethnocentrism of some environmental organizations and
animal rights activists capture the Makah whalers in essentialized images of culture and tradition and
puts pressure on them to conform to the formers’ worldviews and standards. The image of the
‘ecological Indian’, a culture hero created to a large extent by the environmentalist movement, seems to
have been replaced once more by an image of the not so noble savage. The criticism directed against
the whale hunt became focused on the authenticity of the Makah’s way of reinventing tradition:
‘Notions and essentialized theories on traditional Indian-ness becamemarkers of authority; the nonIndian was deciding and valuing what it was to be an Indian.’57
Apparently, the Makah had to authenticate themselves as ‘genuine’ Makah. In the American case,
popular culture is replete with representations of what a ‘real Indian’ is and what ‘authentic’ behavior
should be (Erikson 1999:575).Alx Dark, who has studied the Makah whaling conflict in detail, states that
the comments of opponents of the hunt ‘have frequently drawn from general, romantic and neocolonial ideologies aboutNative Americans’.He adds: ‘This ideological framework allows whaling
opponents to dismiss any Makah claim of cultural continuity by citing evidence of cultural change. : : :
whaling opponents have at times suggested that Makah cultural aspirations are “inauthentic”,usually in
the process of telling the Makah what their culture was, is or ought to be.’58 Dark further remarks:
‘[T]he Makah are told their modernity “proves” they are no longer “authentically” Makah.’ He takes the
stance that ‘the Makah have a right to perpetuate their culture, adapting it to meet new needs. The
Makah should not have to choose between putting their culture under glass, or abandoning it entirely in
order to participate in American society and the world economy.’59 But any contemporary culture is
forged or manufactured to the extent that actors play with a reservoir of available sets of cultural
repertoires, deriving meaning from the selected elements. To achieve this end, they can select from a
contingent and open field of symbols, objects, and experiences (Miller 1994:321-322). In the sense that
any culture, identity or tradition is constructed, reconstructed, invented or reinvented, it is impossible to
argue that there is such a thing as an ‘authentic’ culture, identity or tradition (Turney 1999:424) – at
least if we take authenticity to mean genuine, original, pure, uncorrupted, pristine, untouched, real, true
(Handler 1986:2). Such a mistaken perception sees authenticity as fixed essence, persistent over time.
Here we enter the domain of identity politics and the politics of representation. Environmentalists see
cultural heritage as something static, as a ‘snapshot’ version of culture at some point in time not as a
dynamic force with multiple meanings. This ‘strategic projection of non-Indian stereotypes regarding
indigenous lifeways’ went along with ‘deeply ethnocentric visions of what qualifies as authentic culture’
(Sepez-Aradanas and Tweedie 1999:48).Makah whalers regard some traditions worth pursuing or
revitalizing as part of an articulated bricolage that is important in identity formation. Doshi argues that
‘the Makah framed their whale hunt as an integral part of their culture – implying, then, that tribal
culture is something static that must be recovered and restored for the psychic health of the
community’ (2002:95). To some extent, there is indeed an element of essentializing the cultural aspect
by the Makah. However, shemisses the point that it is an element of their culture that the Makah wish
to articulate in their identity politics. It is a ‘strategic essentialism’ (Gaard 2001:17) in the political
struggle for self-determination in a postcolonial context. Moreover, the Makah have always adapted and
accommodated their culture to economic and political change. For instance, after contact with
Europeans, the Makah traded their whale and seal products with them and incorporated new materials
such as metal in their harpoons (Dougherty 2001).They even provided the oil to lubricate the machinery
in industrializing west coast America. More to the point is Greta Gaard’s criticism that ‘the whale
hunting practices of a certain elite group of men have been conflated with the practices and substituted
for the identity of an entire culture’ (Gaard 2001:17). Indeed, archeological evidence would seem to
indicate that whaling was the preserve of ‘big men’ seeking prestige behavior.60 But appropriation and
articulation of this particular aspect of Makah history and culture would seem to have provided the tribe
with a charter for cultural resurrection or even cultural survival.
AT: Ecofem/Fem
Women played an integral role in the whaling ritual.
Renker, Executive Director of the Makah Cultural and Research Center, 2012 (Ann M,
PhD, NOAA Report to the International Whaling Commission, “Whale Hunting and the Makah: A Needs
Statement”, http://iwc.int/private/downloads/ds5fzaq2p14w88ocko00o4gcw/64-ASW%204.pdf, DVOG)
These ceremonial rigors extended to the wives and relatives of the whaling crew, the chief’s wife in
particular. “Therefore, 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” (Curtis 1911:16). This woman was expected to
observe a strict set of behaviors while the crew was hunting on the ocean, or else cause havoc with the
crew at sea. For example, the whaler’s wife was required to lie still and utterly motionless the entire
time the crew was hunting on the ocean. Lack of attention to this and other proscribed behaviors could
also result in the capture of a whale that was not fat or large enough, or cause the harpooned whale to
run out to sea instead of in toward the shore (Gunther 1942).
Women enacted their critical cultural role during the 1999 whale hunt.
Van Ginkel, Anthropology Senior Lecturer at University of Amsterdam, 2004 (Rob, “The
Makah Whale Hunt and Leviathan’s Death: Reinventing Tradition and Disputing Authenticity in the Age
of Modernity”, Etnofoor, Volume 17, No ½,
http://www.jstor.org/discover/10.2307/25758069?uid=24956&uid=3739960&uid=2&uid=3&uid=67&ui
d=24955&uid=62&uid=3739256&sid=21104306615977, accessed 7/11/2014, DVOG)
Early in the morning of Monday May 17, 1999, after several fruitless attempts may have failed because
of the intimidations of angry protestors who attempted to scare away the whales, the Makah whaling
crew succeeded in taking a juvenile gray whale. The protestors were not there at the moment supreme ˆ
because some were away refueling their vessels while others slept in after partying all night. The
whalers knewthere was a window of opportunity and the previous evening Makah elders had come to
the whalers’ camp and performed sacred ceremonies (Dougherty 2001). The whalers used a 32-foot
cedar dugout canoe, called the Hummingbird, hand-carved paddles and a hand-held harpoon, and
modern equipment as well (a point to which I shall return). A TV crew hovering over the scene with a
helicopter covered the event, which was broadcast live. The crewmembers prayed. Harpooner Theron
Parker performed a ritual to release the soul of the whale to the sea, sprinkling the whale with eagle
feathers. He sang his family’s sacred whaling song, which outraged captain Wayne Johnson (Dougherty
2001). The Sea Shepherd crew blew the Sirenian’s horn for half an hour in protest. The Neah Bay
community and members from supporting tribes welcomed the whale and the whalers with prayers and
sacred songs, an honor guard escort and ceremonies. As tradition required, women whose husbands or
sons were in the canoe had lain down whilst their beloved ones were at sea. ‘This is about a great
tradition. It’s about calling out to our ancestors. It’s all about who we are as a people,’ Theron Parker
told a reporter.11 He added: ‘We prepared for about a year. We prayed to our creator. Yesterday, was a
pretty proud day for all the Makah nation.’12 Butchering the animal took hours. The whale meat was
distributed in the ancient Makah way, apportioning whale meat and parts according to their culturally
based division of whaling labor. But it was not done in the exact traditional manner. Harpooner Parker –
and not captain Wayne Johnson – received the first and choicest cut of the dorsal lump. The Makah
hosted a large potlatch celebration the next Saturday, inviting other tribes to participate and thus
showing their prestige and status.
The Makah whaling ritual recognized the unique connection of women with the
natural realm—the Makah queen used her power to control and bring the whale to
shore.
Cote, University of Washington Professor of American Indian Studies, 2010 (Charlotte,
Spirits of Our Whaling Ancestors, page 26,
http://www.ubcpress.ca/books/pdf/chapters/2010/SpiritsOfOurWhalingAncestors.pdf, accessed July
12, 2014, DVOG)
The whaling chief and his haquum (queen) underwent the same rigid and complex rituals and spiritual
preparation and obeyed similar taboos to demonstrate their connected spirituality and power. Husband
and wife abstained from sex during their ritual preparation. Sometimes the husband even moved into
another house during the whaling season. Within these complex and elaborate ritual ceremonies was
the underlying concept of imitative power, meaning that the whaling chief’s and his wife’s actions
during their preparation affected how the whale would act during the hunt as well as after it was
caught.
An aspect of the rituals that the whaler conducted before the hunt involved performing certain
movements while bathing that imitated a whale’s movements or actions. The whaler would begin his
ritual bathing early n the morning in a freshwater lake or pond. He submerged himself four times and
afer each time rubbed himself with hemlock branches. As the whaler emerged from the water, he
would blow mouthfuls of water toward the center of the lake or pond, emulating the way a whale
moved in the ocean. He performed these movements very slowly and quietly in the belief that his
actions would induce the whale to act in the same way. While the whaler conducted the rituals, his wife
held a rope tied to her husband’s waist, which represented the harpoon line. As the chief sang his
whaling songs, he walked calmly around his wife, making slow movements, that mimicked the
movements of the whale. In turn, the wife sang her songs, repeating over and over, “this is the way the
whale will act”.
Once the whale hunt commenced, the wife also had to take great care in her actions, because even after
her husband left for the hunt her movements affected how the whale acted while being pursued. After
the whaler and his crew left the shore, the wife returned to her home and did not go out for the
duration of the hunt. She lay very still in a dark room. Any movements she made had to be calm and
slow. It was believed that her power was so strong at this point that she could actually become the
whale. If she made any quick or shaky movements, she would cause the whale to become unruly,
making it difficult to catch. The wife was not allowed to comb her hair because it was thought that if the
comb broke it would cause her husband’s whaling harpoon line to snap. It was believed that the wife
exerted such a “special influence over the whale” that she could actually “call it” to the shore.
Although all crew members were expected to observe intense rituals, training, and taboos, it was only
the whaler and his wife who went through the most elaborate rituals and ceremonial bathing that
influenced the whale’s spirit and induced the whales to allow themselves to be captured.
AT: Ban Whaling
The debate is purists vs pragmatists—without compromise like the plan, Japan will
pull out of the IWC and more whales will die.
Hoare, 2010 (Philip, cultural historian and author of several books about whales, 6/21/2010, The
Guardian, “Whales Will be the Losers if Talks Collapse”,
http://www.theguardian.com/commentisfree/cif-green/2010/jun/21/iwc-whaling-stalemate-must-notcontinue, accessed 7/12/14, DVOG)
It is a question of the purists versus the pragmatists. Organisations such as the Whale and Dolphin
Conservation Society (which has just released a visceral anti-whaling video narrated by Christopher
Eccleston to a soundtrack by The Horrors) are lobbying vehemently against the US proposal.
But delegates from countries such as New Zealand, who support the compromise, are equally
determined. "More whales will die if this proposal isn't accepted," said one adviser. He offers the
nightmare scenario of Japan simply walking away from the negotiations "and killing as many humpback
and fin whales as they like".
With the NGOs unable to agree among themselves (the WWF and Greenpeace support the proposal),
the UK, Australia and, perhaps surprisingly, Brazil, stand accused of deliberately trying to wreck the US
solution by refusing to give way. Meanwhile, Iceland has declared a self-imposed quota of 200 fin
whales – 90% of which will find their way to Japan as whale meat.
It is precisely this situation that the proposal seeks to stop. But as this crucial week gets under way, we
may well face the doomsday scenario. By Friday, when the IWC meeting concludes, no one will have
won, and the greatest losers will be the whales, once again.
AT: T Development
Development in the context of whaling means the management and maintenance of
the species including limits on the numbers taken. Aff functions to increase those
limits which means we’re topical under the international legal understanding of
whaling development.
International Whaling Commission, no date (“History and Purpose”, http://iwc.int/history-andpurpose, accessed July 12, 2014, DVOG)
The International Whaling Commission (IWC) was set up under the International Convention for the
Regulation of Whaling which was signed in Washington DC on 2nd December 1946 (Click HERE to view
full text). The preamble to the Convention states that its intention is to provide for the proper
conservation of whale stocks and thus make possible the orderly development of the whaling industry.
The main duty of the IWC is to keep under review and revise as necessary the measures laid down in the
Schedule to the Convention which govern the conduct of whaling throughout the world (Click HERE to
view the full text). These measures, among other things, provide for the complete protection of certain
species; designate specified areas as whale sanctuaries; set limits on the numbers and size of whales
which may be taken; prescribe open and closed seasons and areas for whaling; and prohibit the capture
of suckling calves and female whales accompanied by calves. The compilation of catch reports and other
statistical and biological records is also required.
Negative
Cultural Sovereignty Answers
One tradition doesn’t represent the entire identity of the Makah—the aff makes
assumptions and insults the encompassing value of the Makah by implying that they
aren’t the same tribe without whaling
Mapes ’98 (Lynda, writer for the Seattle Times, “Some Makahs oppose whale hunt”,
http://www.orcahome.de/makah.htm, CL)
NEAH BAY , Clallam County - This yew harpoon, hand-carved more than a century ago, is at home in
Charles "Pug" Claplanhoo's weathered hand. Claplanhoo knows the courage behind every one of the
131 tacks that stud the family heirloom, each one marking a whale killed for the Makah by one of his
ancestors. But despite his link to a heritage of whaling, the hunt planned by his tribe this fall - the first in
70 years - will happen without Claplanhoo's blessing. On the eve of this disputed hunt, now planned to
begin Sunday, some among this seafaring tribe murmur a chorus of quiet dissent. They say there is no
need to return to old hunting traditions to be fully Makah. They say the elders weren't consulted. They
say the hunt is a distraction from more important work. They say, in voices both angry and sad, that the
tribe has little to gain and much to lose by going back to sea - this time with an elephant gun and a
harpoon. Their dissent is not active; tribal members all say they support their legal treaty right to hunt.
Their dissent is not loud; this remote reservation town can be both a sanctuary and a prison for its 2,000
residents. Those who speak out are criticized for disloyalty to their leaders, for airing the tribe's laundry
to the outside world. But, when asked, some, like Claplanhoo, say they cannot bless this hunt.
Claplanhoo is not opposed to whaling. Indeed, he holds dear the family heirlooms - the yew harpoon,
the cedar-bark basket that holds the seal-gut harpoon line, the long pointed stick used to stab into the
whale's blowhole. But he thinks the energy is misplaced. "Let's move on, take care of the tribe," he said.
"If they fought like they are fighting for this whale for our fishing rights, maybe there would be more
jobs." His cousin, "Sonny" Wilbur Claplanhoo, doubts the whaling crew is skilled enough to hunt safely;
his family's harpoon was last used to kill a whale in 1910. He says he wouldn't want his son on the
whaling canoe. Alberta Thompson has stood alone among tribal members in her vocal and visible
opposition to the hunt. A 1997 boat trip among the whales in the Baja, paid for by animal-rights
activists, convinced her whaling is wrong. "They are such wonderful, gentle giants, so intelligent, and
they have such a spirit of trust," said Thompson, 74. "I've paid dearly for standing up, but if I had it to do
over again, I would." In recent weeks, she lost her tribal job of 15 years and discovered her dog dead in a
field. "You could never prove that's why these things happened," Thompson said of her steadfast
opposition. "But I believe it." Her dismissal letter from the tribal council says she was fired for using
office time and telephones to call whaling opponents. And her sincerity has been questioned by whaling
supporters, who scoff at a $10,000 award for bravery offered her by Paul Mitchell Systems, a hair-care
corporation, and a paid job as "ambassador to the whales" offered her by the Sea Shepherd
Conservation Society. Thompson rejected the job on the advice of her attorney. It is a testament to how
things work on the reservation that Thompson's public stance has actually hurt her cause; some tribal
members who have misgivings about the hunt have grown more quiet to distance themselves from her,
and from trouble. Constitutional rights of free speech and freedom of assembly don't carry the same
weight on the reservation, where tribal law rules. The tribal police are authorized to throw anyone off
the reservation deemed an enemy of the tribe. Supporters of the hunt have stepped into that silence
with their own message: The discomfort of individuals must not overshadow the value of the hunt for
the whole tribe. The commitment to honor history has been a unifying force, they say, drawing together
long-feuding factions of the tribal community. "It's really pulled everyone together," says whaler Wayne
Johnson. "I had enemies here before I was even born because of disagreements in the past." Kids toting
"Kill the Whales" signs are greeted with smiles. Some hunt protesters are booted out of town, left to
camp down the road, across the reservation border. Boats operated by protesters are not allowed to
moor at the tribal marina. Tribal leaders speak with pride of the support they say the hunt enjoys in
Indian Country. Tribes from throughout Washington and coastal Canada will travel to Neah Bay
tomorrow for a pre-hunt celebration of feasting and traditional dances. The gathering is expected to be
a joyous show of solidarity for the Makah, who are standing up to worldwide opposition to claim their
treaty rights and reclaim their whaling heritage. The hunt has been sanctioned by some tribal elders;
Helma Ward, mother of the vice chairman of the tribal whaling commission, has lent important and
prestigious endorsement. But other tribal elders, like Margaret Irving, 83, and her two sisters, Isabell
Ides, 98, and Ruth Claplanhoo, 96, have withdrawn from the tribe's public conversation over a return to
whaling. Time changes things, Irving said. No living Makah has ever whaled, and she worries someone
will be killed in the hunt. "I don't go for it myself. But I keep out of it," she said. "They are doing what
they want to do. All I can do is pray for them." She said she has been gratified that some of the younger
members of the tribe have questioned the hunt. And she was hurt that, despite her standing as a tribal
elder, she was not consulted. "To me, they didn't get any knowledge from the elders, and that's what's
made me very unhappy," she said. "They can't get enough fish for the potlatches, but they are only after
the whale. It makes me sad." Her eldest sister, Isabell Ides, is the oldest living Makah. Ides and their
middle sister, Ruth Claplanhoo, live in adjacent houses on the reservation and are the last two fluent
speakers of the tribal language. Their grandmother, Susie Napoleon, had seven brothers, all of them
whalers. Ruth Claplanhoo said her grandmother was drafted to paddle a whaling canoe when the crew
was a person short. So they know the value of tribal culture. But the sisters say whaling is not how they
wish to preserve their heritage. "It stirred up a can of worms," Ruth Claplanhoo said. "It brought up the
white people's true feeling toward us. Now they are giving us all this trouble about the whale." She
reserves her strongest criticism for the Sea Shepherd Conservation Society, which she says is
threatening the tribe's whaling canoe with its two big ships parked outside the breakwater of the tribal
marina. The international attention and outrage focused on the whale hunt will only grow worse if there
is a confrontation at sea, she said. "I'm afraid someone is going to get hurt," Claplanhoo said. "We have
lost enough. We lost our land. We lost our language. We've lost most of our songs." Ides remembers her
father butchering a great Grey on the beach, and the taste of whale meat in her hungry mouth. But she
wants no part of this hunt. "I don't care about the whale," Ides said. "We went without the whale all this
time. . . . Nobody even knows how to prepare (the meat)." Sidney Bowechop, 58, a retired logger,
worries that the whale will be wasted, drawing even more criticism. "These people around here aren't
going to eat it," he said. "If McDonald's fixes it or Burger King makes a whale burger, they will eat it. But
they don't have the foggiest idea how to eat what the old people used to eat." Many here believe that
gaining approval to hunt whales was an important test of treaty rights. But many, like Jesse Hax-Sta Ides,
don't think the tribe has to actually kill a whale to demonstrate that right. "As long as the sun comes up
and sets in the West and the grass is still green, that's how good that treaty is," said Ides, 58. "Our elders
taught us not to give any of that up. "But they don't have to prove it by killing a whale. . . . In these new
modern computer times, it's wrong. I think the guys doing it are trying to make an identity within."
Vivian "Kibby" Lawrence, a former tribal chairman, also is content to see her family's whaling traditions
reside in the past. Tribal identity needs no boost from a harpoon, she said. "I don't understand all the
hoopla that's going on. We have always been simply Makah," said Lawrence, whose great-grandfather,
James Claplanhoo, was one of the tribe's great whaling chiefs. "We have never lost our culture. Whaling
won't make a difference in my life." At a recent family birthday party, Lawrence and her sister, Linda
Moss, sang old tribal songs in Makah. They know so many, they say they can sing for hours without ever
repeating a single one. As Moss took up a drum, the living room furniture was shoved aside to clear the
floor for the children, who stepped and giggled their way through ancient family dances on the wall-towall carpeting. The dances, passed on from generation to generation, depict the antics of sea serpents,
snipes, whales and horses. An ancient tribal chief's hat made from cedar bark was brought out of a back
bedroom, and Wilbur Claplanhoo clapped it on his head. Lawrence's grandson Michael, 16, put on a
ceremonial shawl and cedar wolf mask, then spun and high-stepped as his relatives sang and drummed,
and the Seattle Seahawks played on TV in the background. The wolf mask barely cleared the fan hanging
from the low living-room ceiling. The family doesn't need whaling to tell them they are Makah,
Lawrence said. "We know who we are and what we are," Lawrence said. "I don't need a whale killed to
be any more Makah than I have been my entire life."
Cultural Pretense to Kill Whales is no longer valid—The Makah have a variety of noncultural underlying motives
Watson ’12 (Paul, leader of the Sea Shepherd Conservation Society, “Makah Tribe - Fighting to Kill
More Whales”, http://www.seashepherd.org/whales/makah-tribe.html, CL)
In October of 2005, the Makah Tribe of Washington state and their plans to return to whale killing were
the subject of three public hearings that were held by the United States Federal Government. The
hearings were a part of the review process required in federal environmental law that is necessary for
the preparation of an environmental impact statement being prepared by the National Marine Fisheries
Service (NMFS). NMFS is a branch of the National Oceanic and Atmospheric Administration (NOAA), an
agency of the U.S. Commerce Department. Since the Makah murdered a young gray whale in May, 1999,
their whaling activities have been shut down by legal decisions of the 9th U.S. Circuit Court of Appeals.
In the latest ruling from 2004, the Court ruled that the Makah must comply with the law and obtain a
waiver from the NMFS before any further whaling can take place. The public meetings occurred on
October 5th, 2005, at the Makah Tribal Council Community Hall in Neah Bay, October 6th at the Vern
Burton Memorial Community Center in Port Angeles, and October 11th, 2005, at the Naval Reserve
Building in South Lake Union Park in Seattle. Makah tribes people yell at Sea Shepherd and the other
conservationists in the harbor who are there to show their support for and to protect gray whales. Sea
Shepherd has 12 primary reasons for opposing the plan to slaughter whales by the Makah: 1. The
International Whaling Commission (IWC) specifically allows aboriginal whaling only when there is an
unbroken tradition and only for subsistence purposes. The whales must be a necessity for food. The
Makah do not qualify because they voluntarily broke their tradition and they have no need for whale
meat for food purposes. They argue that the need is cultural. This is not a recognized need by the IWC.
2. The Makah say they have a treaty right with the United States to slaughter whales. However, the USA
effectively abrogated this treaty in 1946 when they joined the IWC and did not represent the Makah as
they did the Yupik and other Alaskan native communities. The Makah have a legal right to sue the U.S.
for not representing them, although they did not request representation at the time and have never
made a protest about this lack of representation. Whaling is governed by international law and falls
under the authority of the IWC, and therefore, the USA no longer has the legal right to grant permission
to any peoples to slaughter whales within or outside the territory of the United States. 3. If the Makah
establish a quota of gray whales they will seek to establish a quota for humpbacks, minkes, and orcas in
the future because gray whale meat is not considered to be palatable as a food animal. Most of the
whale meat that came from the killing of the young whale name "Yabis" (killed on May 17, 1997) was
discarded and wasted. Initially, the Makah admitted to having this objective of seeking additional
quotas. 4. If the Makah establish a quota for whales and are permitted to kill whales by the USA, it will
motivate the tribes on Vancouver Island in Canada to develop whaling plans of their own. In 1998,
thirteen native communities on Vancouver Island said that they would be interested in establishing
whaling operations should the Makah do so. 5. If the Makah establish a quota for whales it will further
strengthen the positions of Japan, Norway, and Iceland to escalate their illegal whaling activities and it
will weaken the United States, as it has already done so, as an international voice for whale
conservation. 6. The original plans by the Makah were to establish commercial whaling activities to sell
whale meat to Japan. We must ensure that this must not happen. Sea Shepherd Conservation Society
does not wish to see the United States become a commercial whaling nation or a pirate whaling nation.
7. There is no quota granted to the Makah by the IWC and there never was. There is a quota given to
native communities in Siberia. The Makah and the United States traded bowhead quotas from Alaska
with gray whale quotas from Siberia. This was a horse-trading deal outside of the IWC. 8. If a whale
quota is established at Neah Bay, it will threaten the local populations of resident whales that will surely
be targeted by the Makah unless specifically protected by legislation. 9. The resumption of whaling by
the Makah will cause stress in the migratory and resident populations and this could lead to dangerous
situations for whale-watching participants that could be exposed to wounded or stressed animals. 10.
Sea Shepherd notes that there are many Makah opposed to the resumption of whaling, and the whaling
initiatives have been advanced by elite Makah families without full democratic tribal participation. 11.
Tradition and culture must not be the basis for slaughter. The ancestors of the Makah killed whales
because they had to do so for survival. There is no survival necessity today to justify such killing. The
treaty that the Makah cite as evidence of their right to whale specifically states that they have the right
to whale "in common with the people of the United States." When the treaty was signed, all Americans
had the right to kill whales. When whaling was outlawed for all Americans it included the Makah as the
rights are "in common" and not separate. There cannot be unequal rights granted in a system that
promotes equality under the law. This is tantamount to extra special rights for a group of people based
on race and/or culture and is contrary to the guarantee of equality under the law as guaranteed by the
U.S. Constitution. 12. Whales should not be slaughtered anytime or anywhere by any people. These are
socially complex, intelligent mammals whose numbers worldwide have been diminished severely. Sea
Shepherd is dedicated to the objective of ending the killing of all whales in all the world's oceans
forever. In this effort, we speak for the whales as citizens of the Earth whose right to live and survive on
this planet must be defended.
The cultural tradition of whaling doesn’t apply to the Makah anymore
Blow ’98 (Richard, Sep/Oct, contributing writer to Mother Jones and a senior editor at George
magazine, “The Great American Whale Hunt”, http://www.motherjones.com/politics/1998/09/greatamerican-whale-hunt, CL)
Now the Makah are preparing to send a canoe of eight men into the bay this October to hunt the Pacific
gray whale during its fall migration. One hunter will carry a gun that shoots massive, .50-caliber bullets
and will put the harpooned whale out of its suffering. Tracking the Makah's every move will likely be a
swarm of media helicopters, a flotilla of protesters, and an even larger phalanx of law enforcement and
government officials trying to ensure that whales are the only ones that get hurt. Away from the
desolate bay, the hunt, which is being challenged in court by a Washington state congressman, also
raises questions about whether it will lead to an erosion of international bans on whaling, and about the
White House's curious role in supporting -- and funding -- it. This year the government gave the Makah
$75,000 in aid for the hunt, adding up to a total of $335,000 over the past three years. "Selling the
whale was a thought," concedes McCarty. "And I'll be honest with you. Selling the whale could be very,
very advantageous to the tribe." Thompson says the whale hunt was Greene's idea: "He decided that
we should go whaling because there would be money in it." Greene did not return phone calls for this
story. The only other exceptions granted were for "aboriginal subsistence," which exempted specific
aboriginal peoples, such as Alaskan Eskimos and Siberian Chuktchis, who have a history of eating whale
meat and a clear need for the food. Even to environmentalists who hated the thought of any whales
being killed, the logic was hard to refute: These aboriginal communities couldn't take enough whales to
harm whale populations, and they needed the meat to survive. At the turn of the century, the Makah
would surely have met the IWC criteria for an aboriginal whaling quota. But at the moment, they clearly
do not. First, the Makah have survived for most of this century without whale meat. Second, the
traditional IWC definition of aboriginal subsistence whaling requires that a community have a
"continuing" tradition of hunting and eating whales. The Makah have had at least a 70-year period
without such activity. Surely, they don't qualify for the exemption. The National Oceanic and
Atmospheric Administration (NOAA), a branch of the Commerce Department, helps set U.S. policy
toward whaling and represents the United States with the IWC. For decades, it has been sympathetic to
anti-whaling groups, working closely and sharing information with their representatives at annual
meetings. Yet NOAA was receptive to the Makah's request -- with just one qualification. "We made it
very clear from the very beginning of their discussions that we could never support any proposal that
had a commercial element," says D. James Baker, the head of NOAA. The Makah agreed to the
stipulation: They would not hunt whales in order to sell the meat -- though they insist they have the
right to do so, and might revisit the prospect in the future.
The Makah do not actually need to kill the whales for a cultural tradition
Markarian ‘03 (Michael, February, the president of The Fund for Animals, which is based in New York
City, and Naomi A. Rose is the marine mammal scientist for The Humane Society of the United States,
based in Washington, D.C, “Makah Whaling is Illegal”, http://www.whales.org.au/alert/makah/, CL)
In May 1999, a young female whale slowly died off the Washington coast after being shot three times once with a harpoon and twice with a high-powered .50-caliber rifle. Although her species, the Eastern
Pacific gray whale, was removed from the endangered list only nine years ago, the Makah tribe had
sought for most of that time to resume hunting these majestic mammals. But in December, the U.S.
Court of Appeals ruled that the whale hunt was flagrantly illegal, and could have devastating impacts on
the resident whales of Puget Sound, as well as set the stage for additional whale killing around the
world. In response to a lawsuit filed by The Fund for Animals, The Humane Society of the United States,
and other plaintiffs, the court determined that the federal government violated environmental laws
when it granted a quota for the Makah to kill up to five whales per year. Moreover, the Makah went
more than 70 years without hunting whales, and do not have a true subsistence need to hunt these
animals. The International Whaling Commission, which bans commercial whaling but allows some Native
subsistence hunts, has a very strict definition of aboriginal subsistence whaling - and has never
recognized the Makah's subsistence-whaling claim. Americans decided long ago that hunting whales for
commercial, recreational and other non-subsistence purposes is simply unacceptable. Allowing the
Makah tribe to hunt even a small number of whales for "cultural" reasons sets a dangerous precedent
for allowing other "cultural" whale hunts around the world. Japanese, Norwegian and some Native
hunters are just waiting for the chance to reopen commercial whaling under the guise of culture, and
the Japanese have already pointed to the Makah hunt as illustrative of American duplicity on this issue.
We must oppose all non-subsistence whale hunting, regardless of whether the whale hunters are
European, Asian, Native American or any other ethnicity.
Because of modern circumstances, the Makah are mainly interested in the profit of
commercial whaling
Greene No Date (Roedy, Canadian Mind Products, “Makah Whale Sacrifice,
http://mindprod.com/animalrights/whale.html, CL)
The Makah appeared on BCTV and CHEK TV many times in the spring of 1999. Every time they floated
yet a new justification for the hunt. They started claiming it was essentially a religious rite to revive the
old spiritual ways. Then it was then a means to improve self esteem, cure alcoholism and drug addiction.
To me, this sounds as off the wall as trying to cure alcoholism by covering themselves in dog feces, but
they presented this justification seriously. The Makah only succeeded in having environmentalists from
all over the planet and even some tribal elders spit on them. So much for unity. If they really need to
hunt to feel like real men, how about hunting deer or seals with hand-made bows? Reviving whale
sacrifice sounds like a scheme hatched in a beerhall. It makes even less sense than reviving the Aztec
rites of human sacrifice. That was an aboriginal right too. White people not that long ago hunted the
Makah for sport. Should that right too be revived in the name of tradition, self esteem and unity? Surely
not. If the Makah are having esteem problems because of rampant alcoholism and drug addiction, it
would make more sense to attack the alcoholism and drug addiction directly rather than trying
something so off the wall as killing whales. The Makah have said they will stop the whale hunt if
environmentalists pay them $350 million American dollars in ransom. Yet their representative on CHEK
TV had the gall to say it was not about money because they had refused a $12 million offer. The
representative went on to claim the protesters were not serious — just in it for the money, — a case of
projection if there ever was one. The Makah don’t believe the protesters are serious about considering
whales intelligent beings, so they ascribe inaccurate motives to the protesters. Many people, including
Greenpeace, have defended the Makah’s right to behave in a traditional manner. Since the Makah have
negotiated a treaty right to kill whales, Makah supporters consider racism the true motive for interfering
with the hunt. Supporters refuse to consider the possibility that whales are highly intelligent and hence
ought not to be killed or eaten. Further, they refuse to believe that protesters consider whales highly
intelligent. Finally, they refuse to extend the privileges of man to whales, no matter how intelligent
whales are. Racism is the motive for a minority of the protesters, but certainly does not apply to most of
them. The people who accuse me of racism would likely have little trouble understanding my
oppposition had the Makah instead decided to revive ancient rites of human sacrifice and cannibalism.
Morally, though not legally, sacrificing and eating whales is a far more serious crime. Whales are a
superior species to humans. It is as if they murdered and ate the Dalai Lama. Those who consider whales
giant cows are of course baffled at the intensity of my opposition, and can only explain it to themselves
in terms of racism. If there were a seal hunt instead of a whale hunt, many protesters, myself included,
would support the Makah. The key issue is: Are whales highly intelligent?. If they are, killing them is
equivalent to murder and eating them is equivalent to cannibalism. If not, this protest is so much
silliness.
Even Makah elders—ones from when whaling was still legal—denounce the whale
hunting
Earth Island Institute (Jun 16, “Makah Elders Speak Out Against Whale Hunt”,
http://www.earthisland.org/immp/melders.html, CL)
In the June 16, Sunday edition of the Peninsula Daily News, several Makah elders, including the eldest
living Makah, spoke out in a one-half page ad against the Makah Tribal Council's plan to kill five gray
whales per year. The Makah Tribal Council (MTC), the corporate representatives of the Makah Nation, is
petitioning the International Whaling Commission (IWC) for an annual quota when it meets in Aberdeen,
Scotland on June 24. The MTC has stated that it retains an option to enter into commercial whaling, and
may whale regardless of the IWC decision. Will Anderson, working in the Advocacy Department of the
Progressive Animal Welfare Society (PAWS), traveled to the Makah village of Neah Bay after requests by
PAWS and several other organizations to meet with MTC officials and representatives were met with
silence for over a year. "After spending time in Neah Bay, I discovered the whaling proposal is very
controversial among the Makah. When it became obvious that elders were among the opposition, PAWS
offered to coordinate the funding for a newspaper ad that the elders could use whatever they wished.
The words are theirs", stated Anderson. The nine organizations sponsoring the ad are: Animal Protection
Institute, Animal Welfare Institute, Cetacean Society International, Chicago Animal Rights Coalition,
Friends of Animals, The Humane Society of the US, International Wildlife Coalition, Progressive Animal
Welfare Society, and the Whale and Dolphin Conservation Society. A pervious ad, Open Letter to the
Makah Nation, requested the Makah to not fulfill the 1855 Treaty that explains Makah whaling rights. It
was signed by 240 organizations from around the world [including Earth Island Institute International
Marine Mammal Project]. The signature list has grown to be in excess of 300 environmental and animal
welfare groups.Whale Hunt Issue: We are elders of the Makah Indian Nation (Ko-Ditch-ee-ot) which
means People of the Cape. We oppose this Whale hunt our tribe is going to do. The opposition is directly
against our leaders, the Makah Tribal Council, Tribal Staff, and the Bureau of Indian Affairs, which is an
arm of the United States Government. The Makah Indian Nation has been functioning without a
quorum; two Councilmen are off on sick leave for very serious reasons, cancer. How can any decision be
legal when our by-laws state the Treasures shall be present at every meeting? The Vice Chairman is the
other man out. The Whale hunt issue has never been brought to the people to inform them and there is
no spiritual training going on. We believe they, the Council, will just shoot the Whale, and we think the
word "subsistence" is the wrong thing to say when our people haven't used or had Whale meat/blubber
since the early 1900's. For these reasons we believe the hunt is only for the money. They can't say
"Traditional, Spiritual and for Subsistence" in the same breath when no training is going on, just talk:
Whale watching is an alternative we support. [Ed: I'm typing from a fax, so I may have misspelled the
following names. My apologies.] Isabell Ides. Age 96; Harry Claplonhoo. Age 78; Margaret Irving. Age 80;
Ruth Claplanhoo. Age 94; Viola Johnson. Age 88; Alberta N Thompson. Age 72; Lena McGee. Age 92.
Allowing the Makah to whale leads to commercial whaling all over the world—cultural
traditions are not a justification for slaughter
Metcalf 2000 (Jack, Feb 8, an American politician who served as a member of the United States House
of Representatives from 1995 to 2001, “Allowing Whale-Hunting By Makah Indian Tribe Will Promote
Commercial Whaling Worldwide”, http://capitolwords.org/date/2000/02/08/H239-10_allowing-whalehunting-by-makah-indian-tribe-will-/, CL)
Madam Speaker, last year I filed an appeal, along with several co-plaintiffs, to overturn the decision
made by U.S. District Court Judge Franklin Burgess to allow whaling by the Makah Indian tribe. Today a
three-judge panel from the Ninth Circuit United States Court of Appeals in Seattle heard the case, and I
hope they will make the correct decision and stop the outdated and unnecessary practice of whaling by
the Makahs .Everyone who understands this issue knows that this is the first step toward returning to
the terrible commercial exploitation of these marine mammals. In the papers filed by the Makahs with
NOAA, they refused to deny that this was a move toward renewal of commercial whaling.It is important
to understand that the International Whaling Commission has never sanctioned the Makah whale hunt.
Under the International Whaling Convention, of which the United States is signatory, it has only been
legal to hunt whales for scientific or aboriginal subsistence purposes. The tribe clearly has no nutritional
need to kill whales. In the face of strong IWC, the International Whaling Commission, opposition to the
original Makah proposal, the U.S. delegation ignored years of opposition to whale-killing and cut a deal
with the Russian government in a backdoor effort to find a way to grant the Makah the right to kill
whales. The agreement is to allow the Makah tribe to kill four of the whales each year, that is, to allow
the tribe, the Makah tribe to kill four whales each year from the Russian quota, under the artifice of
cultural subsistence. Before this back room deal, the United States has always opposed any whaling not
based on true subsistence need. Cultural subsistence is a slippery slope to disaster. It will expand whalehunting to any nation with an ocean coastline and any history of whale-killing. Much to the delight of
the whaling interests in Norway and Japan, who have orchestrated and financed an international
cultural subsistence movement, America's historic role as a foe of renewed whaling around the world
has now been drastically undercut. In fact, there are hundreds of ethnic groups, tribes, and bands
around the world who have a history of hunting whales. To allow a cultural past as a qualification for
hunting whales would drastically increase the number of whales killed worldwide. Almost all cultures on
seacoasts engaged in some whale-hunting historically. The treaty signed by the Makah tribe in 1885 only
gives them the right to hunt in common with the citizens of the territory, now the citizens of the United
States. This provision was to ensure equal rights, not special ones. The Makah tribal government should
not be allowed to kill whales when it is illegal for anyone else in the United States to do so. Besides, it is
just plain dead wrong. It is shameful that the current administration supports a proposal that flies in the
face of the values, interests, and desires of the majority of U.S. citizens. As I have been saying for years,
allowing the Makah tribe to continue whaling will open the floodgates to commercial whaling
worldwide. Just count on it. Whales do have commercial value, and there are interests just waiting to
cash in, as they did in the glory days of worldwide commercial whaling, when the whales were hunted
practically to extinction. Now that we have allowed whaling to begin again, what can we say to Japan
and Norway, whose whaling we have opposed for years but who definitely have aboriginal rights going
back many centuries? I support the Makah elders and others who oppose this hunt, and will continue to
fight in the courts and in Congress to stop the spread of the barbaric practice of killing whales.
Makah whaling aims to undermine U.S. credibility in the IWC
Hoffman ’99 (Mary T. & Frank L., Jun 2, Animal Rights, “Makah Whale Hunt Follow-Up”,
http://www.all-creatures.org/aro/nl-19990602-mak.html, CL)
Last Sunday's special issue of Animal Writes that focused on the killing of the baby gray whale brought a
gratifying return of comments showing the concern our readers have about this issue. There was also a
reprint in another animal-related, online newsletter - AnimalTalk by Nyppsi@aol.com . Nyppsi added the
following editorial which we believe to be worth noting by our readers: This issue is about more than
the killing of a whale, which, in and of itself, is cruel and totally unnecessary. The Makah did not kill this
whale for subsistence, they did not need it for food or survival. For the Makah, this was a totally
senseless and unnecessary murder of an animal to satisfy a cultural "need." This is not a bit different
than the practice of Santeria, the sacrifice of live animals in the name of religion -- an equally disgusting
"tradition." But there's more to this than meets the eye. It has been not-so-quietly intimated that this
was a carefully orchestrated effort on the parts of a number of countries/organizations that support the
worldwide slaughter of whales for profit, and wish to undermine the United States' position as primary
objector to that practice by encouraging this clear violation of the premise that whales should only be
killed when absolutely necessary for subsistence. The current administration, which talks a good
environmental line, fails, once again, to deliver, and fell right into the trap. The whale killers, and those
who support them, have done their job well. This whale didn't die because the Makah tribe is starving
and needs food. This whale didn't have to die for Makah tradition -- the administration could have easily
said NO, based on the greater need of the nation to maintain credibility in the international community.
We could say to ourselves "Why all the fuss, this is just one whale?", but there's much more to this than
meets the eye. Notwithstanding the fact that this was a life, and life is always precious and important, it
is clear that this whale, this living, breathing creature, was a pawn, and really died in the name of human
political nonsense. Think about it. Get angry. Do something.
Precedent Answers:
Turn—shifts in Supreme Court precedent are more likely to hurt Natives than to help
them.
Al Jazeera, May 28, 2014 (“Courts Challenge Native American Land Rights”,
http://www.aljazeera.com/indepth/features/2014/05/courts-challenge-native-american-land-rights201452593531175649.html, accessed July 13, 2014, DVOG)
On an unmarked country road in New England, a faded sign welcomes visitors to the Narragansett
Indian Wetuomuck Community Village. But what lies ahead is more akin to a graveyard. Instead of the
community promised by the sign, 12 empty homes sit in a field swallowed up by weeds. The only hint of
life is the dull hum of a distant highway.
It was on this patch of land that, in 2009, the US Supreme Court crippled the socio-economic aspirations
of the Narragansett Indian tribe - and others across the country. The legal battles started when Rhode
Island state authorities objected to the Narragansett tribe's plan to build a low-income housing complex
on 31 acres of land adjacent to its modest reservation.
In response, the tribe moved to place the land into federal trust, which would have freed it from most
local regulations and taxes. Rhode Island tied up the application with lawsuits, saying the Narragansetts
would eventually build a casino on the land - a claim the tribe denies.
"If you cut off resources to a group, that's how you conquer them," Narragansett tribal councilman
Cassius Spears Jr told Al Jazeera. "That's been the state of Rhode Island’s policy for hundreds of years:
They want to dissolve the tribe."
The Narragansetts held off the state until the case reached the Supreme Court. In its 2009 Carcieri v.
Salazar ruling, the court decided that the government could only put land into trust for tribes that were
"under federal jurisdiction" in 1934 - the year the procedure was established. Since the Narragansett
tribe was federally recognised only in 1983, the government's decision to accept their land trust
application was ruled invalid.
The Carcieri ruling denied the Narragansetts and potentially scores of other tribes’ access to one of their
most effective tools for development. Five years later, the results are being felt across Indian country.
Millions spent on legal fees
Matthew Thomas packs a wooden pipe, takes a puff, and raises the smoky offering up to the sky. The
Narragansett chief's feathered headdress sways as he repeats the blessing. Beside him, dancers decked
in traditional regalia wait for the pow-wow drumming to start.
This is how many outsiders picture an Indian chief's duties. But during his 16-year tenure as leader of the
Narragansetts, Thomas has spent far more time battling for his tribe in courtrooms. By now, he said, the
tribe has spent millions of dollars on legal fees.
“If we could utilise the money that we had to take to fight the state and everyone else, we probably
could've done very well with other forms of economic development," he told Al Jazeera. "The states and
the towns have deeper pockets than us, so it's easy for them."
The Narragansetts are not the only ones struggling with litigation. The Carcieri decision has
been followed by more than 15 federal lawsuits challenging Indian land rights.
"The court's ruling has been at the bottom of much delay in the trust land acquisition process," Robert
Anderson, an Indian law expert at the University of Washington, told Al Jazeera. "Uncertainty and delay
is the enemy of economic development."
No one knows how many tribes could be impacted by the Carcieri decision, as there is no agreement on
what it means for a tribe to be "under federal jurisdiction". Some courts have taken it to be synonymous
with being formally recognised as a sovereign tribe by the federal government. If that view persists,
dozens of tribes could be excluded from the land trust system. Earlier this year, a federal court
effectively prevented the Big Lagoon Rancheria tribe from building a casino on trust land because the
tribe was not federally recognised in 1934.
"Under the constitution, the courts should defer to Congress on its views of Indian affairs and its
relationships with Indian tribes," John Dossett, an attorney with the National Congress of American
Indians, told Al Jazeera. "Part of the concern is that the Supreme Court's becoming a little bit unmoored
from that and is kind of making up its own ideas about what it thinks federal Indian policy ought to be."
Turn: Supreme Court more likely to harm than help.
Tribal Supreme Court Project, 2010 (“Ten Year Report”, http://sct.narf.org/updatememos/tsct10-year-report.pdf, page 46, accessed 7/13/2014, DVOG)
This snapshot of data relating to recent Indian law petitions before the U.S. Supreme Court shows mixed
results. Tribal interests have met with success in many areas. Tribes have largely prevailed against Indian
and non-Indian individuals in asserting their sovereign immunity and civil jurisdiction. When they have
sought to preserve policies that benefit Indians against outside challenges, the federal and state and
local governments have also been very effective defenders of Indian interests. Tribes and their allies,
however, have been much less successful when contending with federal, state and local governments.
Courts have generally, although not invariably, denied their trust responsibility, taxation and lands
claims against the federal and state governments.
The role of the Supreme Court in this process has generally harmed tribal interests.
During this period, the Court largely refused to grant certiorari to petitioning tribes and individual
Indians. It did, however, frequently grant certiorari to federal and state governments who sought to
overturn lower court rulings that favored tribes. The result was that tribal interests lost in the Supreme
Court at a higher proportion than they did in the general population of cases.
Japan Relations Links:
Japan has accused the U.S. of its hypocritical standing for whaling in the IWC
previously
Walker ’99 (Peter, Jun 2, an assistant professor of geography and environmental studies at the
University of Oregon, “Commentary: Makah whaling also a political issue”,
http://us.whales.org/news/1999/06/commentary-makah-whaling-also-political-issue, CL)
IN THE DEBATE over the recent killing of a gray whale by the Makah Tribe of Washington state, both
animal rights advocates and defenders of Native American culture present strong moral arguments. But
the debate has largely ignored the important political implications of the hunt. Specifically, will the
Makah hunt be used as a wedge to break international protections against whaling? And what does the
Makah hunt say about the role of "tradition" and culture in our social choices? No reasonable person
denies that the Makah have suffered deep cultural losses, nor that the whale is an important part of
their culture. The question is whether killing whales is indispensable for revitalizing Makah culture and
whether this goal outweighs the moral and political costs. There is much more at stake than the five
whales per year that the Makah have permission to kill. Makah whaling provides a powerful tool for
Japanese, Norwegian, Icelandic and Russian whalers who want to expand whaling globally. At the annual
meeting of the International Whaling Commission that opened last week, Japan accused the U.S.
government of hypocrisy for endorsing the Makah hunt and even subsidizing it with a $310,000 grant
while rejecting Japan's petition to allow "traditional" Japanese whaling. The two are not the same: The
Makah have a responsible management plan based on cultural needs, whereas Japan barely disguises its
commercial motives. But these distinctions are lost in the global politics of whaling. The Makah hunt
plays perfectly into the hands of the Japanese and other whaling countries who use loopholes such as
"scientific research" to continue commercial hunting. The whaling nations believe the Makah case will
add "cultural need" to the list of loopholes they can exploit. That's why the Japanese offered financial
support for the Makah hunt (which the Makah, mindful of being perceived as pawns of the Japanese,
declined). Moreover, the Makah hunt is being used by the Japanese and others as evidence that whale
populations globally are strong enough to end the ban on commercial whaling (scientists disagree).
Japan and others have lobbied hard for "managed" commercial whaling. These management plans send
shivers down the spines of those who have seen the same kind of "management" contribute to the
decimation of Atlantic cod and Pacific salmon populations. In addition to this political fallout, another
question raised by the Makah case is how "tradition" should shape our public choices. Proponents
suggest that the cultural needs and traditions of the Makah outweigh political and moral objections. But
traditions and political rights have always had an uneasy relationship, and for good reasons. Europeans
had a long tradition of slavery until society declared it unacceptable. The Chinese bound and crippled
women's feet. Some African societies practice female genital mutilation. These are practices that our
society condemns, regardless of their being traditional. Many people believe that whales are such
intelligent, social beings that their killing cannot be justified by tradition. The time for whaling, like these
other traditions, has passed. Defenders of Makah whaling will reject the comparisons, but they should
not dismiss the fact that killing whales is profoundly offensive to many people. Those who take a stand
against native whaling are easy targets for charges of racism and neocolonialism. We must respect
Makah culture, but we also should not devalue, in the name of cultural correctness, the deeply held
views of millions of Americans. Moreover, the passionate defense of Makah "tradition" by some nonMakah is naive and even demeaning to the Makah themselves. All cultures change. The Makah have not
actively whaled since the turn of the century. Pre-European Makah culture cannot be re-created, nor is
that necessarily desirable. The Makah take offense at those who want to make them "museum pieces"
to fit a romanticized vision of the Native American. Recognizing that cultural change is inevitable calls
into question the idea of an unbreakable, unchanging cosmological circle between whaling and Makah
culture. Some Makah, including many of the tribe's elders, believe that times have changed and that
there are better ways to revitalize Makah culture. Non-Makah cannot tell the Makah what to do. The
disrespectful behavior of some anti-whaling activists has only deepened feelings of hostility. But we can
hope the Makah will recognize that today they are key players in the global politics of whaling. Gray
whale populations are strong, but others are not. A voluntary suspension of Makah whaling would be a
powerful blow against those who will surely exploit Makah tradition for their own profit and would
bolster the precarious international sanctions that stand between whales and extinction. The Makah
should have faith that they can be a proud culture without killing whales. The whales, on the other
hand, may not survive without help from the Makah.
An exemption for the Makah undermines American credibility and highlights their
hypocrisy towards Japan
Murphy ’95 (Kim, Aug 2, LA Times Staff Writer, “WILDLIFE : Makah Tribe Seeks to Take to the Seas on
the Trail of the Whale : Northwest Indians plan to gain international approval to resume hunt, the last
one occurring in 1926. Some environmental groups protest move.”, http://articles.latimes.com/199508-02/news/mn-30657_1_makah-whale-hunt/2, CL)
"The treaty between the Makah and the United States is simply that. A U.S. treaty. Whales come under
international treaty, and they're not the property of the United States to give to the Makahs," said
society founder Paul Watson. "The most serious problem is the United States having been one of the
strongest voices at the IWC for years, and this will effectively undermine the credibility of the U.S.
position and will give Japan, Norway, Iceland and Russia what they want, to be able to continue to get
away with their illegal whaling activities," Watson said. A variety of animal rights organizations also have
opposed the hunt, raising particular fears that the hopes voiced by some Makah to launch the hunt by
traditional methods will doom many more whales than five to a slow, painful death. Many groups are
urging at least the use of modern, explosive harpoons. Greene and other Makah said they've received
vitriolic communiques from across the United States by whale advocates, some of whom say they
worship the whale.
Anthro Links:
Whales are intelligent and have intrinsic value
Department of Conservation, 1999 [XMT the department of conservation is a New Zealand government
conservation group, http://www.doc.govt.nz/publications/conservation/native-animals/marinemammals/conservation-of-whales-in-the-21st-century/whales/the-intrinsic-value-of-whales/,
“Conservation of whales in the 21st century—the intrinsic value of whales”]
Aside from the value that we attach to a particular species, it is also valuable in itself. International law
accepts that all biodiversity has an intrinsic value. Being large marine mammals, whales occupy a special
place in marine ecosystems. Many species of whales have unique characteristics. Many species are now
but remnants of a time when whales were plentiful. At the beginning of the 20th century, baleen whales
were the major vertebrate group in the Southern Ocean in biomass terms, but hunting during the last
century, when over two million large whales were slaughtered, probably reduced their biomass to onetenth or less. There has been a major international debate on whale conservation for the last 30 years.
Ensuring their protection is one way of showing that humans are capable of protecting biodiversity for
the benefit of future generations and of using it in a non-consumptive way.
Whales and their behaviour
There is much still to be learned about whales and their behaviour. According to new research, many
whale and dolphin species exhibit complex social patterns, including:
Family life
A calf may stay with its mother for 10 years or more, or throughout its whole life in the case of some
dolphin species. Adult sperm whales will stagger their dives so that one adult is always looking after the
calves. Adults will help each other defend their calves against predators.
Cultural behaviour
Sperm whales, humpbacks and orca have regional song dialects. Specific pods of orca have specific
migration patterns. Female orca teach their young how to beach themselves to catch sealion pups and
how to get off the beach again without becoming stranded.
Memory
Male humpbacks sing one of the animal kingdom’s longest and most complex songs during the breeding
season, and the songs continually change in structure. After a break of several months at the end of the
season, they take up where they left off on their return to the breeding grounds, and continue. Over
time they modify their individual songs without ever reverting to a previous song pattern. Annual
changes in the song of humpback whales in Tonga mirror the changes of song in eastern Australia, but
with a year’s time delay - another example of cultural transmission.
Language
Orcas and dolphins are able to communicate their individual identity to other members of their pod.
Specific categories of sperm whale clicks establish recognition by the members of a pod. Southern right
whales emit specific calls to establish contact with other whale groups. In 1986 a scientist taught
bottlenose dolphins a simple sign language and a computer-generated sound language with a subjectverb-object sentence structure.
Whale hunting is amoral—whales as an order are valuable and humanlike traits
DEFRA, accessed 7/13/14 [XMT, UK Department of Environment Food and Rural Affairs, “Protecting
Whales, a Global Responsibility” no cited date
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/183344/protectingwhales__1_.pdf]
We value whales because they are complex, advanced creatures. Blue whales can measure up to 30
metres long and weigh up to 150 tonnes. Fin and bowhead whales can live for over 100 years. The gray
whales’ migration between their winter breeding grounds off Mexico and feeding area in the Bering Sea
is a round distance of about 10,000 kilometres – one of the longest migrations by any mammal. We also
value whales because they are highly intelligent and social animals. Many whales are known to
cooperate in finding food and have been seen to defend themselves by forming a circle surrounding
calves and wounded animals. Some whales also help injured individuals of the same species, even lifting
them to the surface to breathe. Whales can communicate across vast distances – it is believed that
some species can hear each other as much as 800 kilometres apart. Individuals have their own unique
signature calls and many people enjoy and are inspired by hearing whale ‘songs’. Whilst considerable
research effort goes towards estimating the numbers of whales in the oceans, science is only just
beginning to understand the enigmatic lives of the largest animals on earth and the impact of our
activities upon them.
Scientists accept that whales have intrinsic value
Discovery UK, 2014 [XMT, Discovery UK is a nature channel. This was taken from their website.
http://www.discoveryuk.com/web/whale-wars/about/the-whale-debate/, “The Whale Debate, Whale
Wars”]
In the 1960's, when whale stocks were crashing and undersea exploration was on the rise, a new breed
of scientists began to express concern for whales. Instead of simply warning about the depletion of a
natural resource, these scientists spoke about the intrinsic value of whales, something that made many
of their peers uncomfortable. As whales were increasingly watched, filmed and studied, their high
intelligence, rich social lives, and ability to feel emotion and experience pain became apparent. These
revelations galvanized activists like Paul Watson, who helped start the anti-whaling movement in the
1970's. They also influenced scientists, policy makers, the public — in fact, entire nations — leading to
an international moratorium on commercial whaling in 1986.
Cetaceans have inherent VTL
Prideaux, 2010 [Margi Prideaux, on BBC news’ opinion section,
http://news.bbc.co.uk/2/hi/science/nature/8703043.stm, “Whales and Dolphins—Resource or Right”]
Despite long held preconceptions of human pre-eminence, scientists are discovering sophisticated
intelligence beyond the boundaries of our own species. It may surprise us, but dolphins and whales have
such qualities. Is it possible that 2010 could be remembered as the year when we faced our insecurities
and embraced other highly evolved species, with all the responsibility that entails? This year, which is
set to be an eventful one, started with a physical clash between whalers and activists in the Southern
Ocean. Perhaps our unfulfilled anticipation of action on climate change late last year made us reach for
progress somewhere else - namely biodiversity. The confrontation between whalers and campaigners
sparked a global debate about how we regard other species on the planet. In this case, it was asked
whether whales and dolphins exist as a resource for humans, or whether they have an inherent right to
their life, their liberty and their home.
Meeting of minds
In February, the 2010 Meeting of the American Association for the Advancement of Science (AAAS)
addressed the unprecedented subject of "intelligence in dolphins: ethical and policy implications". A
panel of three well-regarded academics discussed whether the emerging scientific knowledge about the
cultural and cognitive processes of whales and dolphins should influence international policy decisions
and ethical considerations for their treatment. Their conclusions were that yes, it should.
The intrinsic value of whales outweighs their commercial value
Orth, 98 [XMT, Donald J.Orth, Thomas Jones Professor, Fish & Wildlife Conservation, Ph.D.- Oklahoma
State University, M.S. - Oklahoma State University, B.S. - Eastern Illinois University
http://fishwild.vt.edu/orth/pfwm/marinemammals.pdf]
The case against whaling – Although historically the case against whaling has centered on the ethics of
contributing to the extinction of whales, the rebound in whale populations has forced whale
protectionists to develop an alternative position. Whales have intrinsic values apart from their human
uses. This value can only be protected by recognizing cetacean rights and preventing inhumane
treatment and killing. The intrinsic values far exceed the economic value of whale products. Whales are
unique in their intelligence level, playfulness, and grace. As sentient beings it is morally wrong for
humans to unnecessarily cause them pain and suffering. Furthermore, there are alternatives for most
products derived from whales and it is not necessary to kill whales to fulfill essential human needs.
Other non-consumptive uses of whales are more acceptable to our society and contribute to economies.
For example, in 1991 over 4 million people spent over $300 million on whale watching activities.
Whales have the same mental capabilities and complex social structures as humans,
and should be granted the same moral rights
The Economist 12
(Magazine covering world politics, economics, business and finance, and scientific and technological
developments, February 25th, 2012, “Whales are people, too”,
http://www.economist.com/node/21548150)
The proposition that whales have rights is founded on the idea that they have a high degree of
intelligence, and also have self-awareness of the sort that humans do. That is a controversial suggestion,
but there is evidence to support it. Lori Marino of Emory University, in Atlanta, Georgia, reviewed this
evidence.
One pertinent observation is that dolphins, whales and their kind have brains as anatomically complex
as those of humans, and that these brains contain a particular type of nerve cell, known as a spindle cell,
that in humans is associated with higher cognitive functions such as abstract reasoning. Cetacean brains
are also, scaled appropriately for body size, almost as big as those of humans and significantly bigger
than those of great apes, which are usually thought of as humanity's closest intellectual cousins.
Whales and dolphins have complex cultures, too, which vary from group to group within a species. The
way they hunt, the repertoire of vocal signals and even their use of tools differs from pod to pod. They
also seem to have an awareness of themselves as individuals. At least some can, for example, recognise
themselves in a mirror—a trick that humans, great apes and elephants can manage, but most other
species cannot.
Thomas White, of Loyola Marymount University, in Los Angeles, then discussed the ethical implications
of what Dr Marino had said. Dr White is a philosopher, and he sought to establish the idea that a person
need not be human. In philosophy, he told the meeting, a person is a being with special characteristics
who deserves special treatment as a result of those characteristics. In principle, other species can
qualify. For the reasons outlined by Dr Marino, he claimed, cetaceans do indeed count as persons and
therefore have moral rights—though ones appropriate to their species, which may therefore differ from
those that would be accorded a human (for example, the right not to be removed from their natural
environment).
Whales have been recognized by the scientific community as “persons” – treating
them as disposable property is morally wrong
White 12
(Thomas, Fellow of the Oxford Centre for Animal Ethics and holds the Hilton Chair in Business Ethics at
Loyola Marymount University, January 16th, 2012, ABC Environment, “Whales are people too”,
http://www.abc.net.au/environment/articles/2012/01/16/3406990.htm)
There is now ample scientific evidence that capacities once thought to be unique to humans are shared
by these beings. Like humans, whales and dolphins are 'persons'. That is, they are self-aware beings with
individual personalities and a rich inner life. They have the ability to think abstractly, feel deeply and
choose their actions. Their lives are characterized by close, long-term relationships with conspecifics in
communities characterized by culture. In short, whales and dolphins are a who, not a what.
However, as the saying goes, there is good news and there is bad news.
The good news is that the scientific community is gradually recognising the importance of these ethical
issues. For example, more marine mammal scientists are steering away from doing research on captive
dolphins. More significantly, a small group of experts who met at the Helsinki Collegium for Advanced
Studies in the spring of 2010 to evaluate the ethical implications of the scientific research on cetaceans
concluded that the evidence merited issuing a Declaration of Rights for Cetaceans: Whales and Dolphins.
This group included such prominent scientists as Lori Marino and Hal Whitehead. Particularly important
in this declaration was the recognition that whales and dolphins are persons who are "beyond use".
Treating them as 'property' is indefensible.
Whales have similar self-awareness and intellectual capability to that of apes and
humans – hunting them is immoral
Keim 09
(Brandon, Science Blogger for Wired Magazine, June 25th, 2009, Wired Magazine, “Whales Might Be as
Much Like People as Apes Are”, http://www.wired.com/2009/06/whalepeople/)
As the annual International Whaling Commission meeting stumbles to a close, unable to negotiate a
compromise between whaling opponents and people who’ve killed more than 40,000 whales since
1985, scientists say these aquatic mammals are more than mere animals. They might even deserve to be
considered people.
Not human people, but as occupying a similar range on the spectrum as the great apes, for whom the
idea of personhood has moved from preposterous to possible. Chimpanzees, gorillas and bonobos
possess self-awareness, feelings and high-level cognitive powers. According to a steadily gathering body
of research, so do whales and dolphins.
In fact, their capacities could be even more ancient than our own, dating to an evolutionary explosion in
brain size that took place millions of years before the last common ancestor of the great apes existed.
“If an alien came down anytime prior to about 1.5 million years ago to communicate with the ‘brainiest’
animals on Earth, they would have tripped over our own ancestors and headed straight for the oceans
to converse with the dolphins,” said Lori Marino, an evolutionary neurobiologist at the Yerkes National
Primate Research Center.
The idea of whale personhood makes all the more haunting the prospect that Earth’s cetaceans, many
of whom were hunted to the brink of extinction in the late 19th and early 20th centuries, are still
threatened.
At the annual International Whaling Commission being held this week in Portugal, officials failed to curb
the continuing killing of some 1,000 whales every year, mostly by hunters from Japan, Norway and
Iceland. Many scientists say populations are still too fragile to support commercial hunting or, in the
case of Japan, “scientific research” that appears to kill an especially high number of pregnant females.
Whales have brains as or more complex than those of humans and higher levels of
social communication
Warren 14
(Jeff, Award-winning journalist for work on whales, March 2014, Psychology Tomorrow, “The Case for
Animal Personhood”, http://www.psychologytomorrowmagazine.com/case-animal-personhood/)
But the most game-changing research may be the reappraisal of the whale brain currently underway.
Lori Marino has spent 20 years studying the cetacean brain’s structure and evolution, and found that it
is not only large (second only to a human’s in its brain-to-body ratio) but also contains many braided cell
structures and areas of dense connectivity. Whale brains are also highly “convoluted”—the cortex folds
in on itself to increase its surface area inside the skull thus giving the brain its ridged appearance (the
brains of less intelligent animals are much smoother). What’s more, the history of the whale brain has
been very different from those of primates and other mammals. It represents what Marino calls “an
alternative evolutionary route to complex intelligence.”
The most intriguing part of the whale brain for Marino is the limbic system, which, in mammals, handles
the processing of emotions. In some respects, she found this part of the whale brain is actually more
convoluted than our own. In fact it is so large it erupts into the cortex in the form of an extra
“paralimbic” lobe. The location of the paralimbic lobe suggests it is involved in a unique integration
between emotional and cognitive thinking, perhaps some combination of social communication and
self-awareness that we do not currently understand (we’re not smart enough – not in that way).
“Whales are arguably the most socially connected, communicative and coordinated mammals on the
planet, including humans,” says Marino. “Killer whales, for instance, do not kill or even seriously harm
each other in the wild, despite the fact that there is competition for prey and mates and there are
disagreements. Their social rules prohibit real violence, and they seem to have worked out a way to
peacefully manage the partitioning of resources among different groups. That is something we humans
haven’t done yet.”
Whales have intrinsic value – they’re highly advanced and intelligent creatures that
science has only just begun to understand
UK Department for Environment Food and Rural Affairs 07
(December 20th, 2007, “Protecting Whales – A Global Responsibility”,
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/183344/protectingwhales__1_.pdf)
We value whales because they are complex, advanced creatures. Blue whales can measure up to 30
metres¶ long and weigh up to 150 tonnes. Fin and bowhead¶ whales can live for over 100 years. The gray
whales’¶ migration between their winter breeding grounds off¶ Mexico and feeding area in the Bering
Sea is a round¶ distance of about 10,000 kilometres – one of the¶ longest migrations by any mammal.
We also value whales because they are highly intelligent and social animals. Many whales are known to
cooperate in finding food and have been seen to defend themselves by forming a circle surrounding
calves and wounded animals. Some whales also help injured individuals of the same species, even lifting
them to the surface to breathe.
Whales can communicate across vast distances – it is believed that some species can hear each other as
much as 800 kilometres apart. Individuals have their own unique signature calls and many people enjoy
and are inspired by hearing whale ‘songs’. Whilst¶ considerable research effort goes towards estimating¶
the numbers of whales in the oceans, science is only just beginning to understand the enigmatic lives of
the largest animals on earth and the impact of our activities upon them.
Whales are highly intelligent and empathetic, and their killing is ethically unacceptable
Connor 12
(Steve, Science Editor of the Independent, February 21st, 2012, The Independent, “Whales and dolphins
are so intelligent they deserve same rights as humans, say experts”,
http://www.independent.co.uk/environment/nature/whales-and-dolphins-are-so-intelligent-theydeserve-same-rights-as-humans-say-experts-7237448.html)
Marine biologists and philosophers have joined forces to support a controversial declaration of rights for
whales and dolphins on the grounds that their astonishing intelligence and emotional empathy puts
them on a par with humans.
Research into the complex behaviour of cetaceans – whales, dolphins and porpoises – is revealing that
these sea mammals are so highly evolved and complex in terms of their behaviour that they deserve
special protection with a universal bill of rights, they said.
Dolphins and whales have complex vocal communications and are able to learn an astonishing variety of
behaviours when they come into contact with humans, such as cooperative fishing with native
fishermen. The proponents of the bill of rights argue the cetacean mind is so advanced and self-aware
that whales and dolphins should be classified as "non-human persons" who deserve the right to life,
liberty and wellbeing. "A person needs to be an individual," said Tom White, a philosopher at the Hilton
Centre for Business in Los Angeles. "If individuals count then the deliberate killing of individuals
of this sort is ethically the equivalent of deliberately killing a human being.
"The captivity of beings of this sort particularly in conditions that would not allow for a decent life is
ethically unacceptable, commercial whaling is ethically unacceptable. You can't say its all about the size
of the population. We're saying the science has shown that individuality, consciousness, self-awareness
is no longer a unique human property. That poses all kinds of challenges."
Whales have a highly developed sense of self and morality – hunting them is ethically
unacceptable
Doyle 10
(Alister, Reuters Environmental Correspondent, May 23rd, 2010, Reuters, “"Human rights" urged for
whales and dolphins”, http://www.reuters.com/article/2010/05/23/us-whalesidUSTRE64M0UC20100523)
Whales and dolphins should get "human rights" to life and liberty because of mounting evidence of their
intelligence, a group of conservationists and experts in philosophy, law and ethics said Sunday.
Japan, Norway and Iceland, the main whaling nations, oppose such arguments that would outlaw
hunting or even keeping the mammals in marine parks. They have long said there is no real evidence
that they are smarter, for instance, than cows or pigs.
Participants at a University of Helsinki conference said ever more studies show the giant marine
mammals have human-like self-awareness, an ability to communicate and organize complex societies,
making them similar to some great apes.
"We affirm that all cetaceans as persons have the right to life, liberty and wellbeing," they said in a
declaration after a two-day meeting led by the Whale and Dolphin Conservation Society (WDCS).
Thomas White, director of the Center for Ethics and Business at Loyola Marymount University in
California who was at the Helsinki talks, said dolphins can recognize themselves in a mirror, an ability
rare in mammals that humans only acquire at about 18 months of age.
"Whaling is ethically unacceptable," he told Reuters. "They have a sense of self that we used to think
that only human beings have."
Hal Whitehead, a biology professor at Dalhousie University in Canada and an expert on deep-water
whales, said there was more evidence that whales have human-like culture.
SPERM WHALES
He said that sperm whales have sonars to find fish that are so powerful that they could permanently
deafen others nearby if used at full blast. Yet the whales do not use sonars as weapons, showing what
Whitehead called a human-like "sense of morality."
"It's like a group of human hunters armed with guns," he told Reuters. "There's a clear sense of how the
sonar can be used."
Whales are second only to humans in mental and behavioral complexity – they qualify
as “people”
Angier 10
(Natalie, Science Journalist for the New York Times, June 26th, 2010, New York Times, “Save a Whale,
Save a Soul, Goes the Cry”,
http://www.nytimes.com/2010/06/27/weekinreview/27angier.html?pagewanted=all&_r=0)
Yet many biologists who study whales and dolphins view such a compromise as deeply flawed, and
instead urge that negotiators redouble efforts to abolish commercial whaling and dolphin hunting
entirely. As these scientists see it, the evidence is high and mounting that the cetacean order includes
species second only to humans in mental, social and behavioral complexity, and that maybe we
shouldn’t talk about what we’re harvesting or harpooning, but whom.
“At the very least, you could put it in line with hunting chimps,” said Hal Whitehead, who studies sperm
whales at Dalhousie University in Halifax. “When you compare relative brain size, or levels of selfawareness, sociality, the importance of culture, cetaceans come out on most of these measures in the
gap between chimps and humans. They fit the philosophical definition of personhood.”
How much more personable can you get than to wave the flag for tribe or team? Among sperm and
killer whales, Dr. Whitehead said, “there’s a feeling of what one might call ethnicity or cultural identity,
of saying, ‘This is my clan, and it’s different from the others.’ ” One way whales express their ethnicity is
through dialect. Every clan has its signature call, and in regions of the ocean where two clans overlap,
the differences between calls become exaggerated. “It’s like if you’re Irish and you run across someone
who is Scottish or Welsh,” said Dr. Whitehead. “You’ll speak with an even stronger Irish accent to make
it really clear whose group you belong to.”
Whales have brain cells that make their mental abilities similar to those of humans
Coghlan 6
(Andy, New Scientist Reporter, November 27th, 2006, New Scientist, “Whales boast the brain cells that
'make us human'”, http://www.newscientist.com/article/dn10661-whales-boast-the-brain-cells-thatmake-us-human.html#.U8MSovldVHY)
Whales may share our kind of intelligence, researchers say after discovering brain cells previously found
only in humans and other primates.
They were touted as the brain cells that set humans and the other great apes apart from all other
mammals. Now it has been discovered that some whales also have spindle neurons - specialised brain
cells that are involved in processing emotions and helping us interact socially.
Spindle cells, named after their long, spindle-shaped bodies, are the cells that are credited with allowing
us to feel love and to suffer emotionally. Their discovery in whales will stimulate debate both on the
level of whale intelligence and on the ethics of hunting them.
The cells occur in parts of the human brain that are thought to be responsible for our social
organisation, empathy, speech, intuition about the feelings of others, and rapid "gut" reactions (see The
cell that makes us human).
Anthropomorphic angle
Now it turns out that these spindle cells also exist in the same brain areas in humpback whales, fin
whales, killer whales and sperm whales.
What is more, whales appear to have had these cells for at least twice as long as humans, and early
estimates suggest they could have three times as many spindle cells as us, even accounting for the fact
that whale brains are larger than ours.
"It's absolutely clear to me that these are extremely intelligent animals," says Patrick Hof of the Mount
Sinai School of Medicine in New York, and co-discoverer of the whale spindle cells with Estel van der
Gucht of the New York Consortium in Evolutionary Primatology, both in the US.
"We must be careful about anthropomorphic interpretation of intelligence in whales," says Hof. "But
their potential for high-level brain function, clearly demonstrated already at the behavioural level, is
confirmed by the existence of neuronal types once thought unique to humans and our closest relatives."
"They communicate through huge song repertoires, recognise their own songs and make up new ones.
They also form coalitions to plan hunting strategies, teach these to younger individuals, and have
evolved social networks similar to those of apes and humans," Hof says.
Whales are sentient and capable of experiencing complex emotions
WDC, Whale and Dolphin Conservation, 2011 (WDC, non-profit organization,
http://us.whales.org/issues/sentient-and-sapient-whales-and-dolphins, 7/13/14 JH)
If the recognition of sentience in other species results in the moral imperative to ensure that we protect
their welfare by avoiding activities which inflict either physical or psychological suffering; recognising
sapience in some of these species must be the clarion call for us to go further.
WDC believes that as sentient and sapient individuals, whales and dolphins have an entitlement to have
their homes, families and cultures protected as well as being protected as individuals. We argue that
their intelligence and understanding of the world around them is such that protecting their physical and
basic psychological wellbeing is insufficient and that beyond a basic ‘right to life, liberty and wellbeing’,
they also have the right to freedom of movement and residence within their natural environment; the
protection of their natural environment; and not to be subjected to the disruption of their cultures.
These are some of the principles enshrined in the Declaration of Rights for Cetaceans: Whales and
Dolphins.
Science now demonstrates that whales and dolphins are sapient individuals, that at least some are
capable of experiencing complex emotions such as grief and empathy and that some even live in
complex cultural societies. This knowledge requires us to do more than simply protect the conservation
status of species or populations or protect individual welfare. It is the revelation of sapience in our
aquatic cousins, brought about through scientific research, that requires us to recognise their rights.
Complex neurons and cortical spindle cells suggest empathic behaviour, learning, and
emotional processing in whales
Boyle, PhD in Neuroscience, 2009 (Eleanor Boyle, B.A. Behavioural Sciences, University of
Chicago; Neuroscience and Animal Sentience, pg. 2, http://www2ciwf.doteditor.net/includes/documents/cm_docs/2009/b/boyle_2009_neuroscience_and_animal_senti
ence.pdf, 7/13/14 JH)
Neurons, the brain’s building blocks, are also similar across species. Some complex neurons have been
considered unique to humans, but even this is questionable following studies demonstrating that
humpback whales possess cortical spindle cells (Hof and Van der Gucht, 2006) specialized for emotional
processing and that macaque monkeys have mirror neurons that assist in empathic behaviour and
learning (Damasio and Meyer, 2008). Some scientists caution against overstatement of human-animal
similarities, however, and Premack (2007) points to structures and connections that may still suggest
humans are unique.
Echolocation, auditory, communicative abilities, and complex social organization in
whales suggests sentient evolution
Van der Gucht, New York Consortium in Evolutionary Primatology, 2006 (Estel van der
Gucht of the New York Consortium in Evolutionary Primatology, 2006,
http://www.ncbi.nlm.nih.gov/pubmed/17441195, 7/13/14 JH)
Cetaceans diverged from terrestrial mammals between 50 and 60 million years ago and acquired, during
their adaptation to a fully aquatic milieu, many derived features, including echolocation (in
odontocetes), remarkable auditory and communicative abilities, as well as a complex social
organization. Whereas brain structure has been documented in detail in some odontocetes, few reports
exist on its organization in mysticetes. We studied the cerebral cortex of the humpback whale
(Megaptera novaeangliae) in comparison to another balaenopterid, the fin whale, and representative
odontocetes. We observed several differences between Megaptera and odontocetes, such as a highly
clustered organization of layer II over the occipital and inferotemporal neocortex, whereas such pattern
is restricted to the ventral insula in odontocetes. A striking observation in Megaptera was the presence
in layer V of the anterior cingulate, anterior insular, and frontopolar cortices of large spindle cells,
similar in morphology and distribution to those described in hominids, suggesting a case of parallel
evolution. They were also observed in the fin whale and the largest odontocetes, but not in species with
smaller brains or body size. The hippocampal formation, unremarkable in odontocetes, is further
diminutive in Megaptera, contrasting with terrestrial mammals. As in odontocetes, clear
cytoarchitectural patterns exist in the neocortex of Megaptera, making it possible to define many
cortical domains. These observations demonstrate that Megaptera differs from Odontoceti in certain
aspects of cortical cytoarchitecture and may provide a neuromorphologic basis for functional and
behavioral differences between the suborders as well as a reflection of their divergent evolution.
Sentience is directly observable in whales through both neurological discoveries and
behavioral observations, directly questions ethics of whale hunting
Coghlan, Sustainability Specialist, 2006 (Andy Coghlan, reporter for newscientist, Sustainability
Specialist at University of California, http://www.newscientist.com/article/dn10661-whales-boast-thebrain-cells-that-make-us-human.html#.U8L8iLEt2f8, 7/13/14 JH)
Spindle cells, named after their long, spindle-shaped bodies, are the cells that are credited with allowing
us to feel love and to suffer emotionally. Their discovery in whales will stimulate debate both on the
level of whale intelligence and on the ethics of hunting them.
The cells occur in parts of the human brain that are thought to be responsible for our social
organisation, empathy, speech, intuition about the feelings of others, and rapid "gut" reactions (see The
cell that makes us human).
Now it turns out that these spindle cells also exist in the same brain areas in humpback whales, fin
whales, killer whales and sperm whales.
What is more, whales appear to have had these cells for at least twice as long as humans, and early
estimates suggest they could have three times as many spindle cells as us, even accounting for the fact
that whale brains are larger than ours.
"It's absolutely clear to me that these are extremely intelligent animals," says Patrick Hof of the Mount
Sinai School of Medicine in New York, and co-discoverer of the whale spindle cells with Estel van der
Gucht of the New York Consortium in Evolutionary Primatology, both in the US.
"We must be careful about anthropomorphic interpretation of intelligence in whales," says Hof. "But
their potential for high-level brain function, clearly demonstrated already at the behavioural level, is
confirmed by the existence of neuronal types once thought unique to humans and our closest relatives."
"They communicate through huge song repertoires, recognise their own songs and make up new ones.
They also form coalitions to plan hunting strategies, teach these to younger individuals, and have
evolved social networks similar to those of apes and humans," Hof says.
Evidence suggests cognitive, behavioural, and social parallels between whales and
humans
Coghlan, Sustainability Specialist, 2006 (Andy Coghlan, reporter for newscientist, Sustainability
Specialist at University of California, http://www.newscientist.com/article/dn10661-whales-boast-thebrain-cells-that-make-us-human.html#.U8L8iLEt2f8, 7/13/14 JH)
"The discovery of spindle neurons in cetaceans is a stunning example of neuro-anatomical convergence
between cetaceans and primates," says Lori Marino of Emory University in Atlanta, Georgia, US. "The
common ancestor of cetaceans and primates lived over 95 million years ago, and such a highly specific
morphological similarity as the finding of spindle cells is clearly due to evolutionary convergence, not
shared ancestry," she says.
"This is consistent with a growing body of evidence for parallels between cetaceans and primates in
cognitive abilities, behaviour and social ecology."
However, many highly intelligent but smaller cetaceans examined by Hof and van der Gucht did not
have the spindle cells. The explanation could be that these smaller cetaceans, including bottlenose
dolphins, evolved different but equally complex alternatives to the spindle cells. "In this respect, it will
be interesting to discover what mental capacities might distinguish humpback whales from dolphins,"
says Keith Kendrick of the Babraham Institute in Cambridge, UK.
AT: Environmental Pragmatism (Makah Specific)
If we accept that whales are sentient and highly evolved, there is no justification that
would allow us to kill them. It would be as immoral as allowing the Makah to hunt
humans.
Light, 2004 (Andrew, Animal Pragmatism: Rethinking Human-Nonhuman Relationships, page 138
DVOG)
But as a methodological pragmatist not facing convergence on this issue I am unconvinced. Try as I
might I can’t be persuaded that the gray whale killed by the Makah in 1999 accepted its fate. While this
is a view steeped in a long tradition, it does not make it correct. Such anthropomorphic claims represent
a metaphysical view which I find no more convincing than the traditional spiritual metaphysics produced
by my own culture. And while I do find the argument for the cultural right of the Makah plausible and
important, I find the case for the moral worth of cetaceans equally important. As highly evolved
mammals it would be difficult to find a better example (short of the other great apes) of a being that
has robust interests, a sense of itself, of what it means to be harmed and for members of its kin to be
harmed, and other criteria which animal liberationists have argued are the basis for a rejection of
speciesism.
At this point many would insist on a protracted debate over the competing claims of the two positions.
Will whaling really save the Makah culture? Are cultures intrinsically valuable? Are grays as intelligent as
other whales and thus deserving of approximately equal moral status to humans? But I do not find much
utility in trying to answer these questions given their highly speculative nature. I don’t actually think that
I need to. For even if I grant maximal moral significance to the claims of those supporting the hunt and
those opposing it, I still cannot see the hunt as morally permissible. On the one hand,
let us assume that the claim of the Makah is correct both in terms of their right to whale and the
consequences of whaling. If they are allowed to whale then this will preserve and maintain their culture
into the future and not only protect its value in and of itself but also go a long way to creating a more
cohesive social environment which will mitigate their sometimes dire problems. On the other hand, let
us assume that the whale that was killed was a being fully worthy of our moral consideration and
protection, even that it had a right to exist. Then, if we fully accept the rejection of speciesism, we
should be prepared to offer a substitution case to test the veracity of these assessments of maximal
moral significance. If a native tribe requested permission to kill five humans from another tribe each
year in order to maintain its cultural integrity and alleviate its social problems would we find it
permissible? Even with the possible good consequences I can’t imagine that we would. I am left with an
abiding feeling of discomfort over this hunt.