An Endangered Species: Aboriginal Whaling and the Right to Self-Determination and Cultural Heritage in a National and International Context

摘要

While the procedural hurdles (NEPA) to its whaling tradition can be overcome, to the extent that the Makah's treaty rights have been abrogated or modified—either de jure or de facto—the promise to the Makah in 1855 (as well as to In-dian tribes more generally) of a "measured separatism"has been compromised. Indeed, the panel's analysis of the MMPA and the conservation necessity doctrine has broad implications: it would impair not only the Makah Nation's prerogative to hunt whales, but also its sealing rights. Moreover, given the broad reach of the MMPA, the decision, as it stands, has ramifications for the wider Indian community as well. In our view, the tribal treaty rights and the trust relationship established between the federal government and Indian tribes should require more than mere advocacy of tribal treaty rights. Moreover, while we acknowledge the nation-states' recognition in the first half of the 20th century of indigenous peoples' use and dependence on marine wildlife, we must not forget that instruments such as the ICRW were conceived and crafted by dominant societies and imposed on indigenous peoples based on the values, interests, and norms of those societies. We believe that the Arctic Council and the CBD begin to move society in the right di-rection—toward a recognition of indigenous peoples' I self-determination and sovereignly—and provide more principled models of how a pluralistic society and one based on the norm of culture diversity should accommodate indigenous culture, rights, and knowledge. Finally, we believe that the great whales would be better served by those advocates seeking their preservation and protection—the broad objective we wholeheartedly endorse—if they focus their energies, talents, and worldwide attention on large anthropogenic threats to whales, namely climate change, habitat destruction, marine pollution, and fishing by-catch, rather than on preventing the Makah people from exercising their cultural heritage. Indeed, whaling conservationist and preservationist camps should see Indian treaties and tribes as allies in, not impediments to, the quest for the conservation of biological diversity.