INTRODUCTION

So stated Felix Cohen in his seminal article, The Erosion of Indian Rights (1953). It is through Cohen's lens that we examine the domestic and international controversy over the resumption of whaling by the Makah Indian Nation following the recovery of the eastern North Pacific stock of gray whales (Eschrichtius robustus or “California gray whale”). The controversy raises issues of considerable significance: treaty obligations, subsistence and cultural rights versus majoritarianism, contested conservation assessments, animal rights, and politics within multilateral environmental institutions.

We explore these issues independently of our personal views about whaling. Although we support the Makah Tribe's right to decide for itself whether to engage in subsistence whaling, we reject the label “pro-whaling.” We likewise do not reflexively label all of those who come to a different conclusion than we do with the pejorative label “anti-indigenous” or “anti-Indian.” We fully recognize that principled people may weigh the interests at hand and come to different conclusions. The aim of this article is thus broader than the Makah and whales.