Whaling in Circles: The Makahs, the International Whaling Commission, and Aboriginal Subsistence Whaling

Monder Khoury

Volume 67, Issue 1, 293-322

In Anderson v. Evans, the Ninth Circuit held that the International Whaling Commission (“IWC”) Schedule’s approval of a quota to hunt whales for the Native American Makah Tribe (“Makahs”) violated the Marine Mammal Protection Act. The implications of this holding were troubling: despite the U.S. government and the IWC approving, on domestic and international levels, the Makahs’ whaling proposal in the 1990s, the Makahs were still unable to hunt whales legally. The Makahs’ right to whale stemmed from the 1855 Neah Bay Treaty, an agreement between the Makahs and the U.S. government in which the government promised the Makahs the right to whale. However, the enactment of a domestic law called the Whaling Convention Act in 1949 superseded the treaty, rendering it void.

Yet, enforcement of these domestic and international approvals presents problems. First, allowing the Makahs to resume whaling risks setting a dangerous precedent that will trigger a “domino effect,” causing other countries to resume whaling as well. Further, the international community might perceive the IWC’s approval of the Makahs’ whaling as favoritism to the United States. Such a perception might lead to further fragmentation of the global community regarding whaling. Accordingly, this Note suggests that the moratorium on whaling be lifted for specific whale stocks because oftentimes, a complete ban results in unnecessary and avoidable violations of the law. Further, this Note suggests that other countries be allowed to whale under science-based IWC regulations to achieve international consensus and yield better compliance.

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