The Makah Whaling Conflict:
Arguments Against the Hunt

Makah Whaling Conflict
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Many arguments have been made against the Makah whale hunt with new arguments arising all the time as whaling opponents rally opposition to the hunt. Some of these arguments are fundamental to the motives of whaling opponents and some are made out of convenience. To a disturbing extent, whaling opponents have condoned or perpetuated neo-colonialist rhetoric in order to achieve their ends, rhetoric that serves to control and dominate indigenous peoples.

Many peoples from non-whaling cultures oppose the killing of whales because they believe whales are intelligent (comparable in this regard to humans) with sophisticated forms of community and communication. In one conversation with a whaling opponent, I was told that whales are also spiritually enlightened, in the Buddhist sense of being well advanced on the path to Nirvana. These cultural beliefs about whales stress the survival of individual whales rather than the species as a whole. However, these values, when expressed as part of a coherent animal rights worldview, are rejected by a majority of westerners (e.g. vegetarianism is on the rise, but by no means a majority behavior). Perhaps for this reason, animal rights arguments are a strong motivation for activism but less frequently form the basis for public opposition to Makah whaling.[17]

Whaling opponents also fear that Makah whaling will escalate whaling generally, and lead to the decline and possibly the extinction of whale populations. The Nuu-chah-nulth First Nations on Vancouver Island have the same whaling traditions as the Makah and they have already expressed an interest in commercial whaling. Opponents also argue that Japan and Norway, two countries looking for an end to the ban on commercial whaling, will be able to use Makah whaling to return to their own “whaling traditions.” The Makah have essentially expanded the IWC definition of a “subsistence” hunt by returning to whaling after seventy years without it. Japan and Norway might thus attempt to expand the definition further, although other nations of the IWC may refuse to accept this argument. Whaling opponents have legitimate fears about any attempt to manage whaling, at least if one looks at the management of Pacific salmon and Atlantic cod straight into endangered status. Not only must whale hunting be managed, but other threats such as ocean warming or development off the coast of Baja will have to be addressed if whale populations start to drop.[18]

A number of legal objections have been made to the Makah’s return to whaling. Whaling opponents often dismiss the Makah’s treaty and political sovereignty. For example, An Australian group describes the treaty as “a document written 143 years ago which we are now expected to believe is still relevant today.” In fact, Indian treaties have the same standing as treaties with foreign nations in the US (for that is what they are), and treaty rights exist in perpetuity like any other right (unless Congress abrogates these rights, for the purpose of protecting endangered species for example). US responsibilities under the treaty are equal to its responsibilities under the International Convention for the Regulation of Whaling. In addition, the Makah Treaty came first and takes precedence over the ICRW. The courts have also clarified that treaty rights are not “special rights” granted by the United States, but rights the Makah possessed by right of prior use and occupancy. In the treaty of 1855, the US acknowledged the existence of these rights and promised to honor and protect them in exchange for the lands and resources the Makah turned over to the US. Another common misperception is that the Makah are simply US citizens. Makah people are also members of the Makah Indian Tribe and they possess rights particular to that nation, including the right to whale. Again, this citizenship was not granted by another state, so it cannot be revoked at the convenience of the international community.[19]

It is often suggested that the Makah hunt is illegal because it has not been sanctioned by the IWC as a subsistence hunt. While this is true, IWC members did not condemn the quota exchange at the 1998 meetings (in contrast, they pass resolutions opposing Japan’s scientific hunt and Norway’s commercial hunt every year). The Makah might also ask on what authority the IWC presumes to control Makah whaling. The Makah expressly reserved the right to whale at the time of their incorporation in the US; the US did not necessarily possess the authority to sign the ICRW on behalf of the Makah. Since the Makah are not signatory nations to the ICRW they hardly need justify their hunt before the IWC. The Makah made their request before the IWC at the request of the US, to facilitate the US’ ability to pursue its own political interests.[20]

Perhaps more importantly, whaling opponents often claim that whaling is illegal when the IWC has not sanctioned it, but this significantly overstates the power of the IWC. The ICRW allows countries to “opt out” of any regulation with which they disagree and it places enforcement responsibilities with member nations, not the IWC. Non-signatory nations and nations that have withdrawn from the ICRW are not bound in any way by its provisions. As the IWC has pursued stringent conservation measures, some whaling nations have either left the IWC (Iceland) or threatened to leave and assigned their own quotas (Japan and Norway). Nothing in international law makes these hunts illegal. A hunt would be illegal if the hunters were disobeying the laws of their country, whether these laws reflect IWC decisions or not.

Finally, whaling opponents argue that the Makah intend to hunt commercially. They oppose a commercial hunt because of the precedent it would set for other whaling nations. Sea Shepherd cites a statement and two documents from 1995 to support this assertion. Hubert Markishtum (Makah Tribal Council) wrote in 1995 that “[The Makah] continue to strongly believe that we have a right under the Treaty of Neah Bay to harvest whales not only for ceremonial and subsistence purposes but also for commercial purposes.” Sea Shepherd also cites two memos from 1995, the first an acknowledgment from the Makah’s lawyer that the Japanese had spoken to the Makah about purchasing whale meat, and the second a discussion of Makah plans to build an international business selling sea mammal meat (a processing plant was proposed along with hunts of gray and minke whales, seals, sea lions, porpoises and sea otters). When asked to comment, one of the documents’ authors said that “there were many ideas kicked around in those days” but that federal officials told the tribe selling whale meat would be illegal and the Makah agreed not to sell it. The Makah’s lawyer responded that “The tribe never proposed a commercial hunt and only was inquiring about federal rules.” In short, the Makah have agreed not to sell the meat from their hunt, but have not abandoned their right to a commercial hunt.[21]

For most whaling opponents, this raises unacceptable ambiguities about future whaling arrangements. “I would tend to trust the Makah’s close connection with the whales to preserve the species,” one man writes, “but I hesitate when I see the great swath of destruction caused by logging on Makah land. Native American’s are just as susceptible to economic pressure as the rest of us.” To an extent, debate about “subsistence” versus “commercial” whaling goes beyond legal arguments to embrace a non-native moral condemnation of money and commerce. This sharp division of market activities from the rest of life has often been rejected by Native Americans. After all, the Makah have traded the products of whale hunting since time immemorial, often for goods that they depended on for a comfortable subsistence. The division between subsistence and commerce is more salient to urbanites than it is to rural peoples who live off the land.[22]

Jennifer Aradanas (University of Washington Environmental Studies Program) has recently conducted research on the subsistence economy of the Makah Indian Reservation. Her preliminary results indicate that many households received foods from hunters such as meat (50% of households) and fish (90% of households, to name only two of many resources). In her surveys, 82% of Makah households told her they would try whale meat if a whale was caught. Regardless of its commercial potential, this research suggests that gray whale meat will fit into an existing pattern of subsistence hunting.[23]