The 1885 Treaty of Neah Bay granted the Makah Tribe the right to subsistence hunting of gray whales, but a complicated and frustrating legal history has continuously undermined those rights. Its time the tribe received their rights back. VSHS: WHALE TAIL AFF: 2
Cultural 1. the Makah Tribal Council 99 The Makah received heaps of hate mail, harassments in restaurants and on ferries, and even death threats. Internet forums regularly carried vehement anti-Makah or anti-Indian postings, equating the Indians with drunken welfare cheats. Local and regional newspapers (for instance the Peninsula Daily News, the Seattle Times, the Seattle Post-Intelligencer) and radio and TV stations were deluged with letters, phone calls, e-mails and faxes generally opposing the hunt. There was talk of the Makahs vicious, sick behavior, the senseless massacre of a beautiful, peaceful creature, the cold-blooded murder of a magnicent, gentle and trusting animal, barbaric activity, carnage, horrible ordeal, a thoroughly arcane and disgusting tradition or simply evil. Someone referred to the Makah whale killing atrocities.31 Many messages were laced with hateful, ethnocentric or racist remarks (Erikson 1999:560). A man wanted to apply for a license to kill Indians so that he could restore his forefathers tradition (ibid.:563). The discourse had turned ugly. Bumper stickers with the slogan Save a Whale, Kill an Indian became popular. One protestor carried a banner reading Save a Whale, Harpoon a Makah! Whilst under siege of anti-whalers, a Makah carried a sign with the text Go Home Eco-Colonialists. Responding to the commotion after the successful hunt, tribal council Chairman Ben Johnson said: We recognize that because of differences in cultural values and knowledge many people do not understand our need to continue with the tradition of whale hunting, thus creating a conict between them and the Makah.32 In the wake of the environmental and animal rights groups opinion, many remarks were made as regards the validity of reviving tradition, especially in the days following the successful hunt. Some dismissed it as pure bunk, others made deriding comparisons. Someone said that any culture that regains its pride by killing is, at best, primitive.33 Another wrote: These peoples want to rekindle their traditional way of life by killing an animal that has twice the mental capacity they have. These idiots need to use what little brains they have to do something productive besides getting drunk and spending federal funds to live on (quoted in Erikson 1999:563). In a letter to the editor of theSeattle Times, a woman declared: The white man used to kill Indians and give them smallpox-infected blankets. Is this a tradition we should return to?34 In the same newspaper, a couple stated Natives were often referred to as savages, and it seems little has changed (quoted in Dougherty 2001). What does it matter if tradition is killing indigenous people in the name of white culture or killing whales in the name of Makah culture? The mind- set is the same, only the victims differ, wrote a woman to the Peninsula Daily News. 35 A reader of the Seattle Post-Intelligencersent a letter to the editor, reading: The excuse of tradition does not justify this act. Not all traditions are appropriate behavior. It is sad that a once proud group of people have lost so much heritage, pride and self-respect that they actually believe killing an intelligent, warm-blooded creature will some how make them more Indian.36 Another reader volunteered the following: If the Makah tribe wants to embrace their traditions, they should: give up welfare, (they got whale blubber who needs money?); give up modern medicine (they got a tribal medicine man forget the antibiotics and let him cure their tribe with chants!) and by all means, cut off their electricity and running water. Traditionally, they did not have these luxuries [sic]. Also, take those Nikes off those Makah kids and put them back in their traditional moccassins *sic+!37 Many traditions become antiquated, irresponsible and outright wrong, a woman submitted.38 On radio talk shows, statements like white people should renew their tradition of killing Indians could be heard.39 Examples of traditions that should not be revitalized abounded, including cannibalism, human sacrice, widow burning, foot binding, genital mutilation, head hunting and scalping. A typical example is from a letter to the editor of theSeattle Post-Intelligencer, stating: Indeed, an authentic cultural revival would require the resurrection of inter-tribal warfare, slavery and the occasional human sacrice. So why do they insist on whaling, but not launching a return to these other practices that also dened them as a people? ::: Its no wonder the Makah still feel justied in considering whales their property to sacrice as they once did their slaves.40
Rob van Ginkel, University of Amsterdam, The Makah Whale Hunt and Leviathans Death: Reinventing Tradition and Disputing Authenticity in the Age of Modernity //RJ 2. In the face of colonization, the Makahs ability to whale and trade with powerful Eurasian countries stood as a symbol of autonomy and resistance against cultural absorption. The Makahs indigenous environmental spirituality offers a cultural alternative to environmental colonial systems of thought. The Pluralism Project 06 (Harvard University, Makah Whaling, WA (Makah) (2006), http://pluralism.org/reports/view/131, accessed 7/13/14 //RJ) VSHS: WHALE TAIL AFF: 3
When explorers, Vitus Bering and James Cook were first introduced to the Makah community in the late 18th century, they immediately recognized its potential as an extremely lucrative trading partner. The Makah are avid fishermen and whalers and the Europeans began trading copper for whale oil and bone as soon as they came into contact. For these explorers, the Makah were an incredible and valued resource, one whose goods they traded with nations as powerful and distant as Russia and China. This interaction was also beneficial for the Makah, for whom whaling had been a central cultural practice as long as the community had existed, who used the trade to protect the land they inhabited from European settlement and to protect the political authority of their community. Whaling was the very first point of negotiation between European colonizers and the Makah, one commemorated in the original Treaty of Neah Bay, written and signed in 1885. It is entirely appropriate that the Makah be distinguished in the United States' jurisprudence by their ability to whale, for indeed, much of the community's cultural and spiritual coherence comes from the long tradition of whaling. From both oral and archeological evidence, it is clear that the Makah have been hunting whales for at least 2,000 years. As the Makah community website puts it, "More than anything else, whaling represents the spiritual and technological preparedness of the Makah people and the wealth of culture." For whaling, as many sacred practices of Native communities, is significant in many ways at once. Whales, for instance, are physically sustentative for the Makah. One whale can feed an entire village, not only for one community-wide feast or potlach, but for many weeks. Furthermore, the Makah use the oil for burning, bone for tools and carving, sinew and gut for storage. The practice of hunting, slaughtering, and preparing whales for these purposes are also spiritually sustaining. Men going on hunts prepare for years, ensuring that they are physically and spiritually purified. The fasting, training, bathing, and prayer involved in this preparation have been carried on even in recent years, embodying a traditional continuity between the past and present. In the early 1900's the Makah community gradually stopped whaling. There are many explanations for this, most of them having to do with increasing poverty and a subsequent focus on physical survival and thus a decreasing interest in religious rituals, the frequent and often unlawful discouragement by the U.S. government, and the rapid decline in whale populations in the Neah Bay area owing to American, European, and Japanese commercial whaling. The latter reason, the population loss, led the U.S. to help establish the IWC (International Whaling Commission) to regulate global, commercial whaling, and to put the Grey Whale on the Endangered Species List in 1969. The Makah did not hunt while the Grey Whale was classified this way, despite their theoretical legal ability to do so, as specified in the Fish and Wildlife Service Secretarial Order #3206 sections 3c and 4. When, in 1994, the Grey Whale was taken off the Endangered Species list, because of a very healthy recovery of the population to nearly 30,000, the Makah tribe notified government authorities of their interest and intention in resuming traditional whale hunts. The decision to resume the practice of this tradition was a major, positive step for the Makah community, which had, for many years, been suffering from poverty, unemployment, and cultural dislocation. Not only did it connect Makah youth, who had never personally experienced a whale hunt, to the elders, who were the last living links to this central cultural and spiritual event, but it became a ideologically defining issue for the community. Again, the tradition of whaling would be a central aspect of survival for the Makah. For, whereas whaling had originally been a practice which demonstrated the community's determination to survive physically, it was now a practice which demonstrated its determination to maintain the right to cultural and religious autonomy. In both cases communal identity and survival were clearly at stake. In this sense, the resumption of this ancient tradition is explained by the necessity of the community to respond to threats to the independence and distinctiveness of their way of life. Current Legal Battle The tribe, working in conjunction with the US government and the political organizations which regulate international whaling, primarily the IWC, drafted a management plan to ensure that the whaling that would take place be completely legal. The primary grounds upon which the collective parties established this legal claim to hunt was not based on the Treaty of Neah Bay, but on provisions in the IWC and National Oceanic and Atmospheric Administration (NOAA) policy designed to allow an "aboriginal subsistence" quota of whales to be taken by the tribe. The quota established for the Makah is shared with the Chukotka natives of far eastern Russia. The Makah were granted 4 gray whales per year, and the Chukotka, 120. The quota was granted to the tribes in conjunction because the tribes are hunting from the same stock. By conforming to these policy changes, the Makah willingly revised many of the very central features of the traditional hunt, including where they could hunt, how many "strikes" (defined as successful or unsuccessful strikes of whales by the hunters' harpoons) they were allowed, the role of the captain of the whale hunt, and many others. These were all provisions established because of the decline of the grey whale population, which had nothing to do with traditional Makah hunting. In 1999, after receiving approval from the United States government and the IWC, the Makah had its first whale hunt in decades. Robert Sullivan, a journalist, recorded the event in his popular book, A Whale Hunt. Sullivan's work documented not only the disciplined work of the crew to prepare themselves properly, according to both traditional and contemporary judicial codes, but also the immense, highly controversial, and very aggressive opposition mounted against the Makah's hunt by animal rights organizations. The Opposition Since the beginning of the 1999 hunt, opposition to the Makah VSHS: WHALE TAIL AFF: 4
tradition has been led by animal rights groups like the the Sea Shepard, the Humane Society of the United States, the Cetacean Society International and the West Coast Anti-Whaling Society. As quite diligently outlined by the National Council for Science and the Environment, the specific reasons for opposition are typically centered around the idea that whales are more highly intelligent mammals and thus ought not be killed, that the Makah seek to profit from whaling, that allowing the Makah to hunt has set a legal precedent that might allow countries like Japan and Norway to pursue the right to hunt Grey Whales commercially, that the Makah, because of their temporary hiatus from whaling have lost the right to hunt specified in the Treaty of Neah Bay, or that because the IWC has not sanctioned the hunt specifically, that the hunt is illegal. As the NCSE article elaborates, many of these arguments are either legally unfounded, or represent extra- legal concerns. Generally speaking, none of the opposition groups express understanding of the culturally central role whaling has in the Makah community or even attempt to see the issue through the lens of religious freedom. Furthermore, their complaints that the Makah community is threatening the environmental integrity of the area do not mention the costly efforts of that community to research declining deer and elk populations, to remove a dam harmful to local fish, to invest in alternative 'wave energy', to work against toxins in local water, or to restore lagging salmon populations, all of which have been initiated in the last two years. The limited perspective of these groups, so absolutely focused on the well-being of the whales, is not one adopted by more major environmental organizations like Sierra Club and the Wilderness Society, neither of which has opposed the Makah whale hunt. The Future of the Hunt In July 2004 the 9th District Court of Appeals upheld the Makah treaty rights to take whales, however the court ruled with plaintiffs (organizations like the Humane Society, the Cetacean Society, and the West-Coast Anti-Whaling society) by agreeing that the Environmental Assessment prepared by the Makah and the United States government in 1994, after the California Grey Whale had been taken off the Endangered Species list, did not take into account some more subtle threats the Makah hunt could have on the Grey Whale population. Specifically, the suit claims that the whales in Neah Bay are a sub-grouping of the larger, migrating Grey Whale population. It is unknown how this sub-group is established and how or if it is refilled by whales of the migrating population, if its members are lost. The judge in the case, though he admitted that there was significant evidence suggesting that the Neah Bay group is indeed refreshed by the larger population, maintained that the Environmental Assessment did not take into account this and other details. The ruling invalidates the original EA and creates an injunction against further Makah hunting until a new Environmental Assessment can be drafted. Beyond this, the Makah must also reapply for an exemption from the Marine Mammal Protection Act (MMPA) drafted in 1972 in an effort to curb the disastrous effects of over-fishing around the United States. The Makah and the United States argued in the 2004 decision that they were already exempted from the restrictions on hunting in the act, because of sub-section 1372(a)(2), which states that parties whose right to hunt is protected when it is "expressly provided for by an international treaty [established]...before the effective date [of the MMPA]." And though the Makah do have an agreement with the IWC and the US government that grants them a 4 whale per two year quota, it does not pre-date the MMPA. In February 2005, the Makah applied for an exemption from MMPA, which the NOAA's National Marine Fisheries Service is at the currently reviewing at the time of this updating (Summer, 2006), in conjunction with a reissued Environmental Impact Survey, and will begin a formal rule making process. The Makah could also, but have not yet, argued that the 1885 Treaty of Neah Bay fulfilled the MMPA's exemption, largely because of the rather troublesome latter half of the most relevant clause in that treaty: "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 with all citizens of the United States." Since all citizens of the United States do not, currently, have the right to receive this kind of exemption from the MMPA, neither do the Makah, strictly speaking. This case demonstrates the absence of and need for consideration of tribal cultural preservation in a wide range of U.S. federal policy governing issues from treaty rights to the stewardship of the nation's environmental resources. It also demonstrates that though U.S. environmental policy can often be used as an umbrella of protection for tribal claims it remains a rather problematic protection. And finally, it is a clear example of cultural and political autonomy lost to a community once it has ceased to be an economic beneficiary of the United States government. 3. The Makah whaling is emblematic of a larger trend of American cultural imposition on indigenous peoples. For over 1500 years, the Makah tribe depended on the ocean as a way of life. Using treaties and legal rulings the United States dictated by legislative fiat the totality of Makah affairs. Stevens 12 (Jeremy, American Indian Law Journal, OF WHALING, JUDICIAL FIATS, TREATIES AND INDIANS: THE MAKAH SAGA CONTINUES, Volume 1, Issue 1 Fall 2012, pg 1-3 //RJ) VSHS: WHALE TAIL AFF: 5
*O]ur treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith. Here, as in other parts of the world, the undermining of that faith begins with the glorification 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.3 At the northwestern-most corner of the continental United States, on a 27,000 square acre reservation, reside the Makah.4 Currently the only group of the Nuu-chah- nulth people within the realm of the United States of America,5 the Makah once exerted dominion over a territory that consisted of all that portion of the extreme northwest part of Washington Territory . . . between Flattery Rocks on the Pacific coast, fifteen miles south from Cape Flattery, and the Hoko *R+iver . . . eastward from the cape on the Strait of *Juan de+ Fuca.6 The Makah also claimed Tatoosh Island, and indeed still today retain Tatoosh Island and the cluster of land masses which the appellation has come to represent.7 But the whole of the Makah ancestral lands is of a mountainous character, and is the termination of the Olympic range, [covered with+ an almost impenetrable forest.8 The inhospitable climatethe winds, the rains, the rocky crags, the clay dirt and sandstone, and the occasional boulder of graniteis not suitable for cultivation. Owing to the terrain and the climate, the Makah engaged in very limited amounts of agriculture, cultivating potatoes at a hill on Flattery rocks9 and picking berries, naturally resident to the terrain. It is thus not difficult to understand that the Makah were primarily a seafaring people who spent their lives either on the water or close to the shore;10 sprinkled with the occasional tuber, nut, berry or sea fowl, most of the Makah subsistence came from the sea where they fished for salmon, halibut and other fish, and hunted for whale and seal.11 But paramount to the Makah of all the fecund oceans largesse was the California Gray Whale.12 As the Makah themselves assert, whale hunting is the symbolic heart of their culture.13 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 dances16 of the Makah. Whaling has not only been a source of subsistence to the Makah as they have learned to survivethrive, even, before westward expansion squeezed them onto their current reservationatop their clump of clay, rock, and dirtwhaling has been an expression of religious faith and community cohesion.17 Nowhere else is this reverence, this sense of cultural inter-dependence, 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 Indiansthe 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 tribes19 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 voluntarily22 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 Makahs 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.25 Nevertheless, Governor Stevens was sufficiently intuitive and well enough informed to recognize the primacy of the whale. But in Anderson v. Evans,32 the Ninth Circuit abrogated that right, and did so through applying an eminently improper analytical framework of its own making.33 Part I of this article will chart the unhappy sequence of events leading up to the Anderson decision as the Makah soughtand continue to seek todayto re-establish their long- customary and treaty-reserved practice of whaling. Next, this article will consider the canons of United States-Indian treaty interpretation relevant to the Anderson courts failings. Included in this proposition is identifying the source of federal power over Indians, identifying the source of state power over Indians, and identifying what are referred to as the state conservation necessity test and the federal weight and consideration test. As each appellation suggests, the former is used to assess the effects a states regulation imposes upon an Indian treaty-reserved right while the latter is used to assess the effects a federal regulation imposes upon an Indian treaty- reserved right. This article will then address in Part III why the Anderson decision was incorrectly decided and in conclusion, this article will present the current state of the Makahs efforts to resume their treaty-reserved right of whaling or sealing at usual and accustomed grounds and stations34 in exercise of their treaty right to do so. VSHS: WHALE TAIL AFF: 6
4. Whaling is key to preservation of Makah culture and against Western society that unites the tribe in opposition to cultural imperialism. Van Ginkel, Anthropology Senior Lecturer at University of Amsterdam, 2004 (Rob, The Makah Whale Hunt and Leviathans Death: Reinventing Tradition and Disputing Authenticity in the Age of Modernity, Etnofoor, Volume 17, No , 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.
5. 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/wp- content/uploads/Wiessner_final_7.pdf, accessed July 11, 2014, DVOG) VSHS: WHALE TAIL AFF: 7
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, ones 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 ones individual and cultural experiences arise inner worlds, or each persons 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 others 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.189 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 spiritualitythat is their distinctive humanity. Without an opportunity to determine, sustain, and develop that integrity, their humanityand 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 othersno 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 peoples 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 behavior193like 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 self-determination. 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 VSHS: WHALE TAIL AFF: 8
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 systemssuch 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 societys 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.
6. 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.
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Colonialism
1. Refusal to let the Makah people execute their cultural whaling practices is a violent form of Western colonialism Keshena 13 Canada-based Indigenous comrade of the Menominee Nation of Wisconsin and a member of the Uhuru Solidarity Movement. (Enaemaehkiw Tpac, The Makah Whaling Conflict and Eco-Colonialism, http://bermudaradical.wordpress.com/2009/07/09/the-makah-whaling-conflict- and-eco-colonialism/)//ED To a disturbing extent, whaling opponents have relied on colonialist or even racist arguments to develop opposition to the Makah whale hunt. These arguments follow themes that have existed since colonial times to maintain unequal power relationships between native and non-native peoples. Colonialism is not the immediate goal of anti-whaling organizations, and such arguments do not invalidate the other points raised by whaling opponents. As well, the actions and rhetoric of a few individuals and organizations cannot represent the beliefs and attitudes of an entire movement. However, I raise these arguments for criticism because I have not in my research come across a condemnation of the use of such colonialist arguments by whaling opponents, or even an indication that these arguments will not be used in the future.Native American political activity must be incited by outsiders because they cannot act by themselves. Whaling opponents such as the Sea Shepherd Conservation Society have frequently suggested that the Japanese are responsible for the Makah whale hunt. The only Japanese involvement in west coast whaling has been a $20,000 start-up grant for a Nuu-chah-nulth whaling organization, the World Council of Whalers. The Makah are not members of this organization. Ben Johnson (Makah Tribal Council) has said that Japan wanted to give us money, to help us buy boats, to show us how to kill the whales, everything.We said no because we knew it would be very controversial, and we want to do everything by the book. However, this lack of involvement has not stopped Sea Shepherds Paul Watson from explaining: The truth is that it is not the Makah who are our enemy. We were in Neah Bay to oppose the Japanese and the Norwegians, who manipulated the Makah into this situation. Sometimes strategy means having to fight an elusive enemy that takes on another guise in order to benefit the primary opposition. In this case, the Makah are pawns in a global Japanese chess game. Watson has not even accorded the Makah the status of co-conspirators in his chess match, instead drawing directly on an image of the Makah as a passive people easily manipulated by non-natives. This contradicts the statements of many Makah people, including Makah opponents of the hunt, about the importance of whaling and the reasons the Makah desire to hunt. Native American society can be reduced to a conflict between tradition and assimilation. Whaling opponents have extended their arguments about subsistence versus commercial whaling by speaking of a division between the Makah into traditional and assimilated camps. They suggest that Makah traditionalists oppose the hunt as something non-traditional, while the tribal council reputedly wants the hunt only for its economic potential. The Progressive Animal Welfare Society writes that though the tribe is divided over whaling, pro-whalers are in control of the tribal government. Opposition to whaling includes tribal elders. Strictly speaking, this is true, but the failure to note that elders also support the hunt clearly intends to feed into romantic stereotypes about traditional versus assimilated Indians. Non-natives know better than Native Americans what counts as authentic Indian culture. Whaling opponents have also opposed the hunt by suggesting that Makah cultural aspirations are inauthentic, usually in the process of telling the Makah what their culture was, is or ought to be. I really doubt that *the Makahs+ ancestors would respect this modern day version of whale hunting, one woman writes. She continues: It is my understanding that native americans [sic] in the past have always taken (killed) animalsOnly *sic+ as needed for survival and then in great respect and deep appreciation of the animal. This wanton act of killing certainly does not seem to be motivated by survival, respect for all of earths life forms, nor spirituality. This kind of romantic condemnation has been common historically in colonialist discourse about Native Americans. This opponent of the Makah hunt dismisses what the Makah say about themselves and their own experiences as if she possessed superior knowledge about the values and motivations of Native Americans. Technological change is cultural assimilation. Another favorite theme among animal rights activists is the assumption that technological change demonstrates the cultural assimilation of indigenous peoples. Speaking of the Makah, one whale tour operator writes: If they are so hell bent on going back to their roots, why the hell do they insist on: driving cars, using internal combustion engines, fibreglass, aluminum, roads, shopping centres, all the other stuff that has VSHS: WHALE TAIL AFF: 10
improved their lives since the coming of the White Man. Few people would confuse Americans and Japanese just because we share a fondness for Sony Playstations, yet the Makah are told their modernity proves they are no longer authentically Makah. More importantly, 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. If Native Americans disagree with non-natives, it is because they are barbaric. Whaling opponents often explain that the Makah must accept the progress and evolution of society. By this they mean the Makah must accept the forced end of whaling as the natural outcome of social evolution along with fibreglass and shopping centers. Sea Shepherd explains: A society can never evolve by adopting archaic or inhumane rituals. Progress affects everyone living in this new era of the Global Village. No legitimate argument can be made that the Makah, or any other ethnic group, can move their culture forward through ritual killing. This argument would be quite familiar to nineteenth century Americans, or to the European colonizers of any continent. It is exactly the same argument made under the banners of Manifest Destiny, assimilation policies, white supremacy and social Darwinism. Non-natives set a standard for cultural behavior in these arguments that only a small fraction of westerners follow (one estimate of vegetarians in the US places them at 12 million out of 248 million Americans). To lecture the Makah on ritual killing, while our society thinks nothing of killing chickens, cattle and pigs (with all the ritual precision of factory farms) seems hypocritical. Keith Johnson, President of the Makah Whaling Commission, calls this moral elitism. In short, whaling opponents frequently make colonialist arguments that delegitimize the Makahs right to whale by comparing the Makah unfavorably to an ahistorical and idealized portrait of Native Americans. Many non-natives appreciate in vague terms that Native Americans were in harmony with their environment. With our concern to create a environmentally sound culture and society, Native Americans form a ready target for the projection of our fears and fantasies. Just as long, of course, as real Native Americans with real needs do not intrude on these representations. Then an elaborate arsenal of colonialist arguments can be raised to suggest that it is not our own stereotypes but modern Native Americans who are wrong. Whatever one believes about the morality of whale hunting, these arguments are themselves an injustice to the Makah. 2. The United States imposition of sovereign domination and imperialism onto the Makah stems from the colonial logic of expansion Western exceptionalism is embodied through the death of Makah culture and the sacred practice of whale hunting, stemming from a larger racist political system. Tanner 9 (Charles Jr., Institute for Research and Education for Human Rights, Keeping our Word: Indigenous Sovereignty and Treaty Rights, https://www.irehr.org/issue-areas/treaty-rights-and-tribal- sovereignty/319-keeping-our-word-indigenous-sovereignty-and-treaty-rights //RJ)
The struggle for equality in the United States is most identified with the heroic battles of the Civil Rights Movement. As African Americans fought for equal protection under the law and full participation in society, Americans and people around the world were inspired. Our most noble pursuits have been inspired by the genuine call to equal rights and justice for all: the struggle for womens equality, the stand against white nationalists and anti-Semites, the battle for full Constitutional rights for people of all sexual orientations, the voices that rose against the persecution of Arabs and Muslims after the attacks of September 11, 2001, the fight for immigrant rights, and many more. Alongside these movements for equal rights under U.S. law, the indigenous peoples of the continent have waged a 500 year struggle for equality between nations. While civil rights activists have worked for equal treatment under our laws and in our institutions and civil society, the indigenous struggle for self-determination has sought a distinct goal: to secure the inherent rights of the continents original inhabitants to maintain their land and resource base, their cultures and their political sovereignty. Two concepts are important in understanding indigenous self- determination: tribal sovereignty and treaty rights. By understanding these ideas, and taking action together, Indians and non-Indians can build communities in which all people are respected and their human rights upheld. Tribal Sovereignty, a Right of Nations The concept of "sovereignty" is not of native origin. Rulers of ancient states claimed ultimate authority over their territories. In Europe the concept extends back to the Roman Empire, the papal claim to universal power in medieval times, and the "divine right" of monarchs. The idea of "popular sovereignty" spurred the impulse toward democracy that eventually pushed aside many crumbling monarchies. Eons before European contact, the indigenous peoples of the Americas routinely defined and enforced territorial boundaries. These boundaries often included overlapping areas in which two or more tribes shared resources and were understood by tribal members as relationships between both land and peoples. However, the concept of sovereignty is now commonly used to describe tribal rights and can help inform respectful relations between non-indigenous and indigenous peoples. In this respect, sovereignty refers to a collective body or government holding the ultimate political authority in a geographic area. The "sovereign" is empowered to make collective decisions concerning group membership and economic practices; the choice of institutions and external relationships; and socio-cultural and other matters. Because this concept has its VSHS: WHALE TAIL AFF: 11
origins in the history of states, it also has limitations when applied to tribal nations. While it correctly conveys the political authority of tribes, it understates the importance of understanding tribal sovereignty as an inherent right of indigenous communities to self-determination even when tribal institutions and practices look different than traditional American conceptions of government. Anti-Indian activists often claim that tribal sovereignty is an invention of the U.S. government, granted to tribes through legislation, executive order or court decree.Nothing could be further from the truth. No act of the U.S. government ever gave, or justly took way, the right of indigenous peoples to govern their lands and resources and the populations living in their territories. Tribes are, in fact, nations self-identified groups sharing cultural traditions and history in a common territory where they seek to maintain collective self-determination. It is this history of living in their homelands and governing the life of the nation that created tribal sovereignty. While it did not create these rights, the U.S. government has long recognized inherent tribal sovereignty. Supreme Court Chief Justice John Marshall expressed this in 1832 when he wrote that "Indian nations had always been considered as distinct, independent political communities, retaining from their original natural rights, as the undisputed possessors of the soil, from time immemorial." Marshall continued that Indian tribes "rank among those powers who are capable of making treaties." The "words treaty and nation," he wrote, have been "appliedto Indians, as we have applied them to other nations of the earth."[1] In Marshalls words, tribes are nations, just like England and the United States. While nationhood and sovereignty are facts of indigenous political existence, and despite Marshalls 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 Stateshave unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this countryThey 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 Courts 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 non-Indians 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 self- determination. 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. Keeping Our Word: Treaty Rights and Tribal Sovereignty 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: "[T]he treaty was not a grant of rights to the Indians, but a grant of rights from them a reservation of those not granted And the right was intended to be continuing against the United States and its grantees as well as against the State and its grantees." [8] 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 treaty-making from the colonial period to 1871 coincided with VSHS: WHALE TAIL AFF: 12
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 continents 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: "Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the governmentThe power exists to abrogate the provisions of an Indian treaty."[12] 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 actionand 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 tribes 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] 3. The history of colonialism is the history of relentless genocide and imperialism. It creates social hierarchies and economic exploitation, which steals the subjectivity of natives through cultural superiority which inflicts structural violence against the indigenous body. Sciullo 08 (Nick J., A Whale of a Tale: Post-Colonialism, Critical Theory, And Decontruction: Revisiting the International Convention for the Regulation of Whaling Through a Socio-Legal Perspective, HEINOnline //RJ)
Post-colonialism The arrival of non-Indians here led to multiple tragedies that have continued long after the non-Indians should have known better, and these clashes have called forth from many Indian people and tribes so multifarious an array of creative transfor- mations of themselves that no single book, and not even a multi- volume set of books, could chronicle them all." No alleged effect of colonization evokes greater moral indigna- tion or fretful nostalgia than fragmentation. Colonialism breaks things. It shatters an imagined wholeness. Colonialism's will to power creates binaries where a unified field and healthy singularity of cultural purpose once existed. The self of the colonizer explodes a native cultural solidarity, producing the spiritual con- fusion, psychic wounding, and economic exploitation of a new and dominated other. Colonization imposes evil, fear, and igno- rance on the innocent native landscape.97 The post-colonialism debate is very much about robbery-a spiritual theft of subjectivity that manifests itself through practices of cultural superiority, xenophobia, and the oppressor's lack of humynity. What was once whole, striated, expansive and indefinite is now smoothed by a larger discourse of dominance. The develop- ment of colonialism and its refinements VSHS: WHALE TAIL AFF: 13
and rebirths have perpetu- ated a psychology of control that has injured, actually and metaphorically, indigenous populations. Post-colonial critiques are often multifaceted, but all center on a rejection of imperialism and/or a rejection of the blanket con- cept of "Enlightenment Thinking."" Post-colonial critiques have also been termed "radical anti-imperialism" by Patrick Callahan.99The argument that the United States has or is an empire is hotly debated, mostly because parties focus on indicia of formal em- pire-control over cultures, sovereignties, economic strength, etc. To be sure, there is a compelling case to be made that the United States is an empire when considering its relationship to the indige- nous peoples of the United States. With the recent events of Sep- tember 11, 2001 deployed as a call for a new imperialism, the post- colonialism critique is relevant to today's political and philosophi- cal discourses. 00 However, perhaps the most palpable example of the United States' empire is indirect empire.'0 ' Indirect empire often arises out of advantages in international trade, popular culture indoctrination, and the spread of a country's commercial interests and objectives-Starbucks, McDonalds, etc. Both types of empire are serious problems for subalterns of all varieties.10 2 These "serious" problems pose serious threats to the existence of the Makah.'os There is clearly a war of words over the appropri- ateness of whaling. However, what is particularly stressing is the threat to Makah identity. Anti-whaling arguments are made in a manner that challenges the subjectivity of the Makah by debasing various cultural claims about the relationship between the Makah and whaling.' 0 4 The denial of subjectivity is the most unfortunate philosophical turn toward destruction. Post-colonial critiques often rely on historical and sociological analysis, paying special attention to the impacts of international re- lations not only on nation-states and large bodies, but also on the individual.o Here post-colonial critiques pick up where standard deconstruction fails. The Makah have a long history of contact with the forces of colonization through the nineteenth century.1 0 6 Because post-colonial critiques involve a critique of imperialism, they are particularly effective tools in discussions of international relations and international law. They also offer important insights in the analysis of indigenous populations. There is a long history of U.S. imperialism and a clear exercise of cultural genocide with respect to the United States' indige- nous populations. Even though Sumner Wells, Franklin Delano Roosevelt's Undersecretary of State, famously declared "the age of imperialism is ended," 0 that notion has not resonated with the colonized within the United States' borders. The Makah have been no exception to the deplorable treatment of indigenous peo- ple by the U.S. government.'09 The ban on whaling is not a policy solely against the Makah, it is the support of a convention that desires to ban whaling across the globe, denying the cultural and historic practices of many people. This is an example of interna- tional relations no longer being about East versus West, but at a deeper level being about Michael Hardt and Antonio Negri's no- tions of empire.'1 o Although this Article focuses largely on the Makah, arguments could be made that incorporate post-colonial criticisms as they relate to a number of other countries and cultures. Imperialism is a particularly naughty tactic that reinforces itself through the oppressive cycle. Once a country is in, it is hard to get out."' Imagine indigenous peoples in the United States re- jecting all federal government assistance or imagine Venezuela not shipping oil to North America and Europe. Those situations are simply not feasible in a practical sense. However, imperialism is inherently unstable.' 12 The risk of constant social rebellion is a real threat to the established order."' Because the goal of imperi- alism is dominance, individuals are always placed in a disadvanta- geous position against the system. Furthermore, the United States and its leadership enjoy making declarations that the United States has broken free of the Western world's colonial traditions, reifyingthe goodness of the system being critiqued. Richard Nixon, during a campaign speech, famously declared, "For the first time in history we have shown independence of Anglo-French policies toward Asia and Africa which seemed to us to reflect the colonial tradition. That declaration of independence has had an electrifying effect throughout the world.""' This assertion would prove to be wrong in the years to come and does not take into account the continued domestic imperialism practiced against indigenous people of the United States. What can whaling countries do? They might resume whaling temporarily, knowing that they might be able to whale for at least a short time before pressure from other countries becomes too great. That would never solve anything and would only give whal- ing countries a small glimpse at their previous way of life. As men- tioned previously, the cultural exemption debate tops the list of post-colonial critiques. This Article, however, is more about the need to open up the space for post-colonial critique than it is to define the specifics of place. The cultural exemption rests on the IWC's use of the term "subsistence whaling," which is "whaling, for purposes of local ab- original consumption carried out by or on behalf of aboriginal, in- digenous or native peoples who share strong community, familial, social and cultural ties related to a continuing traditional depen- dence on whaling and on the use ofwhales.""' The exemption is a logical compromise designed to promote a better understanding of different cultures. It is an attempt to be responsive to the needs of societies and to recognize many of the constituent parts of cul- ture."'6 It provides some hope. Geert Hofstede, one of the preem- inent sociologists in the field of intercultural relations, found culture to be "the collective programming of the mind which dis- tinguishes one hum[y]n group from another... . Culture is to a hum[y]n collectivity what personality is to an individual.""' Whal- ing is a programmed activity,1 18 a characteristic of certain cultures, similar to how certain jobs are characteristic of different regions of the United States-farming in the Midwest, for example.
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4. Under the framework of colonialism, the racialized, exploited, annihilated other is violently expelled from political spaces; indigenous and sub-ontological cultures are automatically assumed to be inferior, incessantly creating a death ethics of war that results in genocide. Maldonado-Torres 8 (Nelson, Against War: Views from the Underside of Modernity, p. 217-21)
Dussel, Quijano, and Wynter lead us to the understanding that what happened in the Americas was a transformation and naturalization of the non-ethics of warwhich represented a sort of exception to the ethics that regulate normal conduct in Christian countriesinto a more stable and long-standing reality of damnation, and that this epistemic and material shift occurred in the colony. Damnation, life in hell, is colonialism: a reality characterized by the naturalization of war by means of the naturalization of slavery, now justified in relation to the very constitution of people and no longer solely or principally to their faith or belief. That human beings become slaves when they are vanquished in a war translates in the Americas into the suspicion that the conq uered people, and then non-European peoples in general, are constitutively inferior and that therefore they should assume a position of slavery and serfdom. Later on, this idea would be solidified with respect to the slavery of African peoples, achieving stability up to the present with the tragic reality of different forms of racism. Through this process, what looked like a "state of exception" in the colonies became the rule in the modern world. However, deviating from Giorgio Agarnben's diagnosis, one must say that the colony--long before the concentration camp and the Nazi politics of extermination--served as the testing ground for the limits and possibilities of modernity, thereby revealing its darkest secrets." It is race, the coloniality of power, and its concomitant Eurocentrism (and not only national socialisms or forms of fascism) that allow the "state of exception" to continue to define ordinary relations in this, our so-called postmodern world. Race emerges within a permanent state of exception where forms of behavior that are legitimate in war become a natural part of the ordinary way of life. In that world, an otherwise extraordinary affair becomes the norm and living in it requires extraordinary effort." In the racial/ colonial world, the "hell" of war becomes a condition that defines the reality of racialized selves, which Fanon referred to as the damnes de la terre (condemned of the earth). The damne (condemned) is a subject who exists in a permanent "hell," and as such, this figure serves as the main referent or liminal other that guarantees the continued affirmation of modernity as a paradigm of war. The hell of the condemned is not defined by the alienation of colonized productive forces, but rather signals the dispensability of racialized subjects, that is, the idea that the world would be fundamentally better without them. The racialized subject is ultimately a dispensable source of value, and exploitation is conceived in this context as due torture, and not solely as the extraction of surplus value. Moreover, it is this very same conception that gives rise to the particular erotic dynamics that characterize the relation between the master and its slaves or racialized workers. The condemned, in short, inhabit a context in which the confrontation with death and murder is ordinary. Their "hell" is not simply "other people," as Sartre would have put it-at least at one point - but rather racist perceptions that are responsible for the suspension of ethical behavior toward peoples at the bottom of the color line. Through racial conceptions that became central to the modern self, modernity and coloniality produced a permanent state of war that racialized and colonized subjects cannot evade or escape. The modern function of race and the coloniality of power, I am suggesting here, can be understood as a radicalization and naturalization of the non-ethics of war in colonialism." This non- ethics included the practices of eliminating and enslaving certain subjects-for example, indigenous and black-as part of the enterprise of colonization. From here one could as well refer to them as the death ethics of war. War, however, is not only about killing or enslaving; it also includes a particular treatment of sexuality and femininity: rape. Coloniality is an order of things that places people of color within the murderous and rapist view of a vigilant ego, and the primary targets of this rape are women. But men of color are also seen through these lenses and feminized, to become fundamentally penetrable subjects for the ego conquiro. Racial- ization functions through gender and sex, and the ego conquiro is thereby constitutively a phallic ego as well." Dussel. who presents this thesis of the phallic character of the ego cogito, also makes links, albeit indirectly, with the reality of war. And thus, in the beginning of modernity, before Descartes discovered ... a terrifying anthropological dualism in Europe, the Spanish conquistadors arrived in America. The phallic conception of the European-medieval world is now added to the forms of submission of the vanquished Indians. "Males," Bartolome de las Casas writes, are reduced through "the hardest, most horrible, and harshest serfdom"; but this only occurs with those who have remained alive, because many of them have died; however, "in war typically they only leave alive young men (mozos) and women.""5 The indigenous people who survive the massacre or VSHS: WHALE TAIL AFF: 15
are left alive have to contend with a world that considers them to be dispensable. And since their bodies have been conceived of as inherently inferior or violent, they must be constantly subdued or civilized, which requires renewed acts of conquest and colonization. The survivors continue to live in a world defined by war, and this situation is peculiar in the case of women. AsT. Denean Sharpley-Whiting and Renee T, White put it in the preface to their anthology Spoils oJ War: Women oJ Color, Cultures, and Revolutions: A sexist and/or racist patriarchal culture and order posts and attempts to maintain, through violent acts of force if necessary, the subjugation and inferiority of women of color. As Joy James notes, "its explicit, general premise constructs a conceptual framework of male [and/or white] as normative in order to enforce a politicaljracial, economic, cultural. sexual] and intellectual mandate of male [and/or white] as superior." The warfront has always been a "feminized" and "colored" space for women of color. Their experiences and perceptions of war, conA ict, resistance, and struggle emerge from their specific racial-ethnic and gendered locations ... Inter arma silent leges: in time of war the law is silent," Walzer notes. Thus, this volume operates from the premise that war has been and is presently in our midst. The links between war, conquest, and the exploitation of women's bodies are hardly accidental. In his study of war and gender, Joshua Goldstein argues that conquest usually proceeds through an extension of the rape and exploitation of women in wartime." He argues that to understand conquest, one needs to examine: I) male sexuality as a cause of aggression; 2) the feminization of enemies as symbolic domination; and 3) dependence on the exploitation of women's labor-including reproduction." My argument is, first, that these three elements came together in a powerful way in the idea of race that began to emerge in the conquest and colonization of the Americas. My second point is that through the idea of race, these elements exceed the activity of conquest and come to define what from that point on passes as the idea of a "normal" world. As a result, the phenomenology of a racial context resembles, if it is not fundamentally identical to, the phenomenology of war and conquest. Racism posits its targets as racialized and sexualized subjects that, once vanquished, are said to be inherently servile and whose bodies come to form part of an economy of sexual abuse, exploitation, and control. The coloniality of power cannot be fully understood without reference to the transformation and naturalization of war and conquest in modern times. Hellish existence in the colonial world carries with it both the racial and the gendered aspects of the naturalization of the non-ethics of war. "Killability" and "rapeability" are inscribed into the images of colonial bodies and deeply mark their ordinary existence. Lacking real authority, colonized men are permanently feminized and simultaneously represent a constant threat for whom any amount of authority, any visible trace of the phallus is multiplied in a symbolic hysteria that knows no lirnits.?" Mythical depiction of the black man's penis is a case in point: the black man is depicted as an aggressive sexual beast who desires to rape women, particularly white women. The black woman, in turn, is seen as always already sexually available to the rapist gaze of the white, and as fundamentally promiscuous. In short, the black woman is seen as a highly erotic being whose primary function is fulfilling sexual desire and reproduction. To be sure, any amount of "penis" in either one represents a threat, but in his most familiar and typical forms the black man represents the act of rape- "raping" -while the black woman is seen as the most legitimate victim of rape- "being raped." In an antiblack world black women appear as subjects who deserve to be raped and to suffer the consequences-in terms of a lack of protection from the legal system, sexual abuse, and lack of financial assistance to sustain themselves and their families-just as black men deserve to be penalized for raping, even without having committed the act. Both "raping" and "being raped" are attached to blackness as if they form part of the essence of black folk, who are seen as a dispensable population. Black bodies are seen as excessively violent and erotic, as well as being the legitimate recipients of excessive violence, erotic and otherwise." "Killability" and "rapeability" are part of their essence, understood in a phenomenological way. The "essence" of blackness in a colonial anti-black world is part of a larger context of meaning in which the death ethics of war gradually becomes a constitutive part of an allegedly normal world. In its modern racial and colonial connotations and uses, blackness is the invention and the projection of a social body oriented by the death ethics of war." This murderous and raping social body projects the features that define it onto sub-Others in order to be able to legitimate the same behavior that is allegedly descriptive of them. The same ideas that inspire perverted acts in war--particularly slavery, murder, and rape--are legitimized in modernity through the idea of race and gradually come to be seen as more or less normal thanks to the alleged obviousness and non-problematic character of black slavery and anti-black racism. To be sure, those who suffer the consequences of such a system are primarily blacks and indigenous peoples, but it also deeply affects all of those who appear as colored or close to darkness. In short, this system of symbolic representations, the material conditions that in part produce and continue to legitimate it, and the existential dynamics that occur therein (which are also at the same time derivative and constitutive of such a context) are part of a process that naturalizes the non- ethics or death ethics of war. Sub-ontological difference is the result of such naturalization and is legitimized through the idea of race. In such a world, ontology collapses into a Manicheanism, as Fanon suggested."
5. Beginning with the Native populations of North America as a starting point to dismantle colonialism is key because of how they have been represented historically as discursively and ontologically Other. Friedberg 2K, author and political activist with a master's degree in the humanities from the University of Chicago and is currently a doctoral candidate in Germanic Studies at the University of Illinois at Chicago. (Lillian, Dare to Compare: Americanizing the Holocaust, http://www.operationmorningstar.org/A_Holocaust_The_American_Brand.htm)//ED Katz argues that the Nazi Holocaust is "phenomenologically" unique based on the "merciless, exceptionless, biocentric intentionality of Hitler's 'war against the Jews.'"[ 22] Katz's argument centers on documented intentionality and governmental policy in the Nazi period. What Katz does not take into account is that a twelve-year period in a twentieth- century industrialized society lends itself more readily to documentation than a five-hundred-year period, most of which is historically and geographically situated in the midst of a preindustrial "virgin wasteland," nor does he significantly engage the discourse generated by Native American scholars in recent years. It does not, however, take a paragon of intellectual prowess to deduce an implied intent to "destroy, in whole or in part, a national, ethnic, racial or religious group," from the events that transpired in the process of"depopulating" the New World--a slaughter that Katz patently refuses to define as "genocide" even though it conforms precisely to the definition of the phenomenon as outlined by Raphael Lemkin, who coined the term in his 1944 Axis VSHS: WHALE TAIL AFF: 16
Rule in Occupied Europe.[ 23] The murder of 96 percent of any given population does not occur "inadvertently," especially when members of that group are viewed by their assassins as belonging to a separate (and inferior) national, ethnic, racial and religious order. Furthermore, there is evidence to suggest that the introduction of diseases to the Native populations of North America was anything but an incidental byproduct of "westward expansion." In what is likely the world's first documented case of genocide accomplished by bacterial means, Lord Jeffrey Amherst suggested that smallpox-infected blankets be distributed to the Ottawa and Lenape peoples, stating in a 1763 letter to his subordinate, Colonel Henry Bouquet, "You will do well to [infect] the Indians by means of blankets as well as to try every other method that can serve to extirpate this [execrable] race."[24] This statement indicates that the annihilation of the Indian population by way of disease was neither arbitrary nor incidental to the aims of the European settler population and its government. Even as early as 1763, the settler population and its sovereign representatives acted in full cognizance of the impact their introduction of disease would have on the Native populations. Stannard points out, with regard to the "enemy microbe" argument, that by focusing almost entirely on disease, by displacing responsibility for the mass killing onto an army of invading microbes, contemporary authors increasingly have created the impression that the eradication of those tens of millions of people was inadvertent--a sad, but both inevitable and "unintended consequence" of human migration and progress. This is a modern version of what Alexander Saxton recently has described as the "soft side of anti-Indian racism" that emerged in America in the nineteenth century and that incorporated "expressions of regret over the fate of the Indians into narratives that traced the inevitability of their extinction. Ideologically," Saxton adds, "the effect was to exonerate individuals, parties, nations, of any moral blame for what history had decreed." In fact, however, the near-total destruction of the Western Hemisphere's Native people was neither inadvertent nor inevitable.[25] Survivor testimony and statistical records from the Nazi death camps reveal that the uncontrolled spread of disease among inmates was also a major factor contributing to the death toll during the Nazi Holocaust, but that argument has never been forwarded in favor of exonerating the perpetrators--at least not in serious scholarship on the subject. If, as Yehuda Bauer contends, "[t] here was no governmental intention to exterminate the victim population" in the Americas, how else are we to understand the now well-known statement attributed to General Philip Henry Sheridan at Fort Cobb in January of 1889: "The only good Indian is a dead Indian?"[26] While Bauer concedes that "important figures in the U.S. administration expressed genocidal hopes and intentions," he still insists that "there was no clear governmental policy of total murder."[27] It would seem redundant, in this context, to point to the innumerable studies that have been conducted since 1945 in the attempt to ascertain whether or not Adolf Hitler himself had issued the order for the Final Solution. The introduction of diseases to indigenous populations was accompanied by a systematic destruction of "the indigenous agricultural base [in order to] impose starvation conditions upon entire peoples, dramatically lowering their resistance to disease and increasing their susceptibility to epidemics."[28] What is more, the ideology of Manifest Destiny is itself founded on an implied intent to kill--it is the "central constituent ideology translated into action" that Bauer posits as the defining characteristic that sets the Nazi Holocaust apart from all other genocidal campaigns in the history of humanity. Fortunately, pseudoscholarly revisionists who would deny the Nazi atrocities have been properly (and legally) excluded from legitimate academic and public discourse in many countries--Germany, Austria, France and Canada among them. But, As Ward Churchill has argued in A Little Matter of Genocide: Holocaust and Denial in the Americas 1492--Present: "the ugly enterprise of Holocaust denial has a flip side--indeed, a mirror image--which is equally objectionable but which has been anything but marginalized by the academy, popular media, or the public at large."[29] According to Churchill, exclusivists insisting on the uniqueness of the Nazi Holocaust succeed in "outstripping the neonazis" in terms of denial: Whereas the latter content themselves with denying the authenticity of a single genocidal process, exclusivists deny, categorically and out of hand, the validity of myriad genocides. Yet, unlike the neonazis, those holding to the postulates of Jewish exclusivism are not only treated as being academically credible, but are accorded a distinctly preferential treatment among the arbiters of scholarly integrity.[30]
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6. Defense of treaty rights is VITAL to reclaiming indigenous sovereignty here and around the world and is the *cornerstone* of any effective struggle against other forms of oppression Churchhill 97, (Ward, Suppression of Indigenous Sovereignty in 20th Century United States, Z MAGAZINE, http://www.zmag.org/ZMag/articles/may97churchill.html)//ED The route leading to an alternative destiny for native people is just as clear as that prescribed for us in the newly revised Draft Convention. By relentless and undeviating assertion of the basic rights of treatied peoplesat all levels, through every available venue, and excluding no conceivable means of doing sowe can begin to (re)secure them, restoring to ourselves and to our posterity our/their rightful status as sovereign and coequal members of the community of nations, free of such pretense as IRA-style "self-governance" and subterfuges like the 1975 "Indian Self-Determination" Act. Only by achieving success in this enterprise can we eventually position ourselves to tangibly assist our relatives in other quarters of the globe , untreatied and thus presently unrecognized as being imbued with the same self-determining rights as we, to overcome the juridical/diplomatic quandary in which this circumstance places them. Any such progression, of course, serves to incrementally disempower nation-states even as it steadily (re)empowers those upon whose subordination statism depends most heavily and directly for its very existence. This, for its part, undermines a cornerstone on which that rapidly metastasizing malignancy described by U.S. President George Bush in 1991 as constituting a "New World Order" is designed to rest. The inestimable benefit to all humanity deriving from a trajectory of this sort should be readily evident to anyone not already vested in the perpetuation of planetary business as usual, and may serve to explain why the agenda of indigenous liberation deserves the broadest imaginable prioritization and support among those who profess commitment to constructive sociopolitical and economic change.
7. The aff sparks global decolonization movements that are critical to averting environmental collapse and extinction Tinker 96 (George, Iliff School of Technology, 1996, Defending Mother Earth: Native American Perspectives on Environmental Justice, ed. Jace Weaver, p. 171-72)//ED My suggestion that we take the recognition of indigenous sovereignty as a priority is an overreaching one that involves more than simply justice for indigenous communities around the world. Indeed, such a political move will necessitate a rethinking of consumption patterns in the North, and a shift in the economics of the North will cause a concomitant shift also in the Two-thirds World of the South. The relatively simple act of recognizing the sovereignty of the Sioux Nation and returning to it all state- held lands in the Black Hills (for example, National Forest and National Park lands) would generate immediate international interest in the rights of the indigenous, tribal peoples in all state territories. In the United States alone it is estimated that Indian nations still have legitimate (moral and legal) claim to some two-thirds of the U.S. land mass. Ultimately, such an act as return of Native lands to Native control would have a significant ripple effect on other states around the world where indigenous VSHS: WHALE TAIL AFF: 18
peoples still have aboriginal land claims and suffer the ongoing results of conquest and displacement in their own territories. American Indian cultures and values have much to contribute in the comprehensive reimagining of the Western value system that has resulted in our contemporary ecojustice crisis. The main point that must be made is that there were and are cultures that take their natural environment seriously and attempt to live in balance with the created whole around them in ways that help them not overstep environmental limits. Unlike the Wests consistent experience of alienation from the natural world, these cultures of indigenous peoples consistently experienced themselves as part of the that created whole, in relationship with everything else in the world. They saw and continue to see themselves as having responsibilities, just as every other creature has a particular role to play in maintaining the balance of creation as an ongoing process. This is ultimately the spiritual rationale for annual ceremonies like the Sun Dance or Green Corn Dance. As another example, Lakota peoples planted cottonwoods and willows at their campsites as they broke camp to move on, thus beginning the process of reclaiming the land humans had necessarily trampled through habitation and encampment. We now know that indigenous rainforest peoples in what is today called the state of Brazil had a unique relationship to the forest in which they lived, moving away from a cleared area after farming it to a point of reduced return and allowing the clearing to be reclaimed as jungle. The group would then clear a new area and begin a new cycle of production. The whole process was relatively sophisticated and functioned in harmony with the jungle itself. So extensive was their movement that some scholars are now suggesting that there is actually very little of what might rightly be called virgin forest in what had been considered the untamed wilds of the rainforest. What I have described here is more than just a coincidence or, worse, some romanticized falsification of Native memory. Rather, I am insisting that there are peoples in the world who live with an acute and cultivated sense of their intimate participation in the natural world as part of an intricate whole. For indigenous peoples, this means that when they are presented with the concept of development, it is sense-less. Most significantly, one must realize that this awareness is the result of self-conscious effort on the part of the traditional American Indian national communities and is rooted in the first instance in the mythology and theology of the people. At its simplest, the worldview of American Indians can be expressed as Ward Churchill describes it: Human beings are free (indeed, encouraged) to develop their innate capabilities, but only in ways that do not infringe upon other elements called relations, in the fullest dialectical sense of the word of nature. Any activity going beyond this is considered as imbalanced, a transgression, and is strictly prohibited. For example, engineering was and is permissible, but only insofar as it does not permanently alter the earth itself. Similarly, agriculture was widespread, but only within norms that did not supplant natural vegetation. Like the varieties of species in the world, each culture has contributed to make for the sustainability of the whole. Given the reality of eco- devastation threatening all of life today, the survival of American Indian cultures and cultural values may make the difference for the survival and sustainability for all the earth as we know it. What I have suggested implicitly is that the American Indian peoples may have something of values something corrective to Western values and the modern world system to offer to the world. The loss of these gifts, the loss of the particularity of these peoples, today threatens the survivability of us all. What I am most passionately arguing is that we must commit to the struggle for the just and moral survival of Indian peoples as peoples of the earth, and that this struggle is for the sake of the earth and for the sustaining of all life. It is now imperative that we change the modern value of acquisitiveness and the political systems and economics that consumption has generated. The key to VSHS: WHALE TAIL AFF: 19
making this massive value shift in the world system may lie in the international recognition of indigenous political sovereignty and self-determination. Returning Native lands to the sovereign control of Native peoples around the world, beginning in the United States, is not simply just; the survival of all may depend on it .
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Epistemology
1. The United States control over Makah whaling rights is based on a Western scientific approach that shuts out native viewpoint from wildlife management. This tramples the rights of native culture and ensures species loss that will be detrimental to biodiversity everywhere Sepez 2 Former anthropologist at the NOAA, has worked with people in the Makah Tribe on and off for almost 20 years, former professor at the University of Washington (Jennifer, TREATY RIGHTS AND THE RIGHT TO CULTURE: Native American Subsistence Issues in US Law Cultural Dynamics http://www.sagepub.com/healeystudy5/articles/Ch7/Treatyrights.pdf)
Hunting and fishing rights have been a major source of conflict for indigen- ous groups seeking to maintain or regain access to natural resources. The right to culture is one of the bases for asserting these rights, but frequently it has been insufficient to protect them from encroachment by state and national governments. This article compares the controversy over whaling by the Makah Indian tribe with similar conflicts to elucidate some of the common difficulties Native American resource users face in enacting the right to culture, and the treatment these issues have received under US law. It also examines some issues specific to Makah whaling that reveal how cultural revival is an important aspect of the right to culture which presents special challenges. Treaty rights emerge as a powerful legal force in shaping subsistence rights for tribes in the United States, with strong influences on and interplay with the concept of cultural rights. Subsistence hunting and fishing involve the harvest of local resources for local consumption. These activities are extremely important to many Native American groups, for whom they provide a critical source of food, connec- tion to the land, maintenance of traditions and cultural institutions, econ- omic benefits, and strong sense of identity. Unfortunately, many resources which have been relied upon for thousands of years are in decline because of a variety of pressures unrelated to subsistence use. Management and regu- lation are needed to ensure the long-term viability of certain species and associated cultural practices. Native American groups have a vested interest in maintaining populations of the species they utilize, but their needs have not always been recognized in natural resource management efforts.The intuitive appeal and analytical vagueness of a right to culture, as noted by Robert Winthrop (2000), bump headlong into each other when limited resources are at stake. The management of many wide-ranging animal species, essential to fostering biodiversity in the modern world, is an arena in which conflicts over cultural diversity issues are particularly likely to arise. In this context, the framework of cultural rights can become a tool for inserting native concerns that might otherwise be ignored into policy- making processes. It can also become a new battleground for competing claims over allocation, tradition, and sovereignty. Because migrating and other wide-ranging animal species occur in a variety of territories, the possibility for culturally based conflicts over use and management is greater than with other types of organisms. This article will examine conflicts over three types of migrating animals which are utilized by Native Americans: geese, salmon, and whales. Biologists and politicians entrusted with making decisions regarding wildlife management are not always sensitive to the concerns of minority cultural groups. Policy decisions based on biological considerations alonemigration patterns, reproductive seasons, sustainable yield, etc.can, at best, overlook the legitimate concerns of regional cultural groups, and can, at worst, be employed intentionally to undermine a groups cultural integrity (Winthrop, 2000) under the guise of science-based management. In addition, attempts to eliminate the subsistence practices of minority cultural groups, whether they are challenges to treaty rights or to more general cultural rights, can generate increased conflict, which ultimately may be more detrimental to the sustainability of the resource.
2. Makah whaling is based on an alternative human nature relations that values nature and is opposed to Western anthropocentric thought Sepez 2 Former anthropologist at the NOAA, has worked with people in the Makah Tribe on and off for almost 20 years, former professor at the University of Washington (Jennifer, TREATY RIGHTS AND THE VSHS: WHALE TAIL AFF: 21
RIGHT TO CULTURE: Native American Subsistence Issues in US Law Cultural Dynamics http://www.sagepub.com/healeystudy5/articles/Ch7/Treatyrights.pdf)
If one can consider this perspective to be a culturally-based understand- ing of the nature of the biological world and human relations with it, what transpired in the Makah whaling debate is partly a result of conflicting ethnobiological paradigms. Interestingly, the conflict is not based on a Makah belief that whales lack the traits that elevated them to superstatus in the eyes of whale rights advocates, but rather on a different view of the proper relationship between humans and whales, and the parameters of appropriate action. Hunter-gatherer societies frequently ascribe human-like qualities to most animals and Makahs were no exception, as evidenced by their rich oral tra- dition. The idea that such ascriptions were unfounded and constituted unscientific anthropomorphism has its roots in the European Enlighten- ment. Thus the idea that whales, like humans, have thoughts, feelings, and family ties appears to be a new and radical rethinking of animal existence, but it actually corresponds to long-held beliefs of Makah tribal members. The key difference then is not in the characterization of whales. Where the ethnobiological paradigms truly conflict is on the issue of rights, rather than on the issue of attributes. For whale rights advocates, the human- like qualities of some whales give them a kind of right to life. Historically, for Makahs, as with many hunter-gatherer societies, the right for humans and other animals to hunt for food is an inherent part of the order of nature in which the prey willingly succumbs to those hunters who demonstrate worthiness by their behavior (Tanner, 1979). As expressed by Makahs on the 1999 whaling crew, the whale gave itself up to them when the time was right and was treated as the Guest of Honor when landed on the beach (Johnson, 1999).
3. The affirmative is based on a new political epistemology that resists the colonizing effect of Western discourses. This is the only form of ethical politics that can recognize non-human agency. Kennedy 7 Ph.d in philosophy from Murdoch Univesrity (Ocean Views: An investigation into human-ocean relations http://researchrepository.murdoch.edu.au/123/2/02Whole.pdf)
In this dissertation I chart several meanings attributed to oceans in modern Western societies that are highly influential in shaping human-ocean relations and highlight ethical and political issues to which we should respond. In so doing, the examination of conceptions of oceans I carry out throughout this dissertation does not provide a complete narrative of the historical development of meanings attributed to oceans in Western societies. Rather, this dissertation plots a particular course through the great, though insufficiently explored, expanses of Western conceptions of oceans. My approach examines meanings attributed to oceans that are anchored in the Western discourses of law, science and aesthetics.5 I seek out these three discourses of law, aesthetics and science because they are productive dimensions for illuminating human-ocean relations in Western societies. Moreover, as these three discourses are complex, I deal with only a fraction of their possible scope. But to limit is sometimes to reveal and thus I hope the limited scope of my engagement has resulted in a purposive analysis of the way certain Western discourses have produced particular norms that influence the way the Western subject relates to the oceans. I suggest that the contemporary discourses of oceanic lives I am concerned with have been totalising, leaving little room for diversity. They have also been colonising, leaving little room for non-human flourishing. I argue that totalising and colonising practices in relation to oceans need to be resisted in order to facilitate just existences for oceans. My focus on the facilitation of just existences for oceans will beelaborated upon further in this dissertation. But to briefly indicate here how just existences for oceans may be facilitated, I argue for inclusive knowledge production and decision-making processes in which there is a capacity for a diversity of views to influence outcomes. Part of my task in valuing and vouching for just ocean existences in this wayfor humans and non-humansleads me to argue in this dissertation that some conceptions of oceans are better than others. I concur with Haraway when she writes: We exist in a sea of powerful stories: They are the condition of finite rationality and personal and collective life histories. There is no way out of stories; but no matter what the One-Eyed Father says, there are many possible structures, not to mention contents, of narration. Changing the stories, in both material and semiotic senses, is a modest intervention worth making. (1997, 45) Accordingly, my thesis is that particular conceptions of oceans developed and perpetuated in the Western discourses of law, aesthetics and science are highly influential in structuring contemporary human-ocean relations. Moreover, the conceptions that I discuss unnecessarily constrain possibilities for imagining and VSHS: WHALE TAIL AFF: 22
understanding human-ocean relations in Western societies. Consequently, just ocean existences are being hindered for identifiable reasons. Improving the prospects of just ocean existences can be achieved through the use of politically generated knowledges about oceans to shift policy towards a set of social-environmental goals that are not widely imagined by the Western mind. As will become clear in the course of my discussion, the scope of my thesis does not provide for sustained engagement with specific marine environmental disputes or policy initiatives. My concern is with the discourses that frame debates and policymaking more generally, and then with a model in which specific disputes and policymaking activities can take place. In arguing my thesis, I take on board and travel with a number of philosophical, social and political theories. Principally, the insights of feminist and ecological feminist thinkers into forms of oppression and social and environmental justice have stirred the analysis I carry out. The conceptual analysis and theoretical insights of avariety of thinkers across a range of disciplines assist me to develop a critique targeted toward the social and cultural dimensions of human exploitation and degradation of oceans. I also go beyond critique to explore ways of acknowledging non-human agency that work toward addressing the abuse. It is important to add that in going beyond critique I advocate for a view in which policy debates and outcomes are driven, at least in part, with forms of political epistemology that de-centres the expertsscientists in particular. Political epistemology is a term I use to conceptualise democratic reciprocal knowledge making (Fawcett 2000, 136). I also advocate for ocean policy that centres both the non-human realm (which is often backgrounded) and our active construction of reality (which is often overlooked). A theme in my interventions in this dissertation is to advocate for understandings of oceans that acknowledge both our active construction of reality and natures role in these negotiations (Cheney 1994, 175). Political epistemology that is inclusive of a diversity of perspectives and roles human and non- humanand takes seriously the possibilities of a democratic process is, for me, the basis of ethical politics. My concern with democratic political epistemology is discussed in detail in my final Chapter. However, the central themes in my dissertation of democratic process and ethical politics bear further elaboration prior to introducing the contents of each chapter. The following preamble establishes the background against which much of my discussion of the Western discourses of law, aesthetics and science can be read. That is to say, much of what is considered the reality of oceans through these discourses is a social construction wherein rarely, if ever, do these discourses take seriously the possibility that oceans have agency. 4. Opening up to alternative non-Western relationships to nature is critical to solve extinction. The current anthropocentric mindset guarantees unsustainable development. Avelar 14 (Idelber Avelar is a Full Professor specialized in contemporary Latin American fiction, literary theory, and Cultural Studies. He received his Ph.D. from Duke University in 1996, March 2014, Contemporary Intersections of Ecology and Culture: On Amerindian Perspectivism and the Critique of Anthropocentrism, http://muse.jhu.edu.proxy.lib.umich.edu/journals/revista_de_estudios_hispanicos/v048/48.1.avelar.pdf.) //ky
To think the contemporary according to this logic is to identify and think through the presents locus of non-coincidence with itself, its blind spot, so to speak. The contemporary thus fundamentally names a relationship with the present, but the relationship takes place with that which remains hidden and repressed in the present as its condition of possibility. An epoch in which the contemporary can be thought is, then, necessarily one in which the present lodges within itself some seeds of discord with itself. Agamben rephrases that energylet us understand the untimely as an energy, an intensity, in Deleuzes sense of the wordas the ability to stare at the present in the face so as to see its darkness, not its light.1 In order to think through the contemporary, therefore, the question to be posed is not so much what is the difference between our age and previous ages, but what is our ages difference with itself, what is, so to speak, its point of non-coincidence with itself, what is its untimely ground. I will develop in this essay the hypothesis that such a blind spot, unique to our times relationship with itself, must be understood in the context of what geologists have called the Anthro- pocene Era. This is a period marked by our ability to do such severe damage to the environment that humans have now become geological agents, equipped with the concrete possibility of extinguishing our own species and most others, no longer as a result of one single catastrophic event, as it was commonly feared when a possible nuclear explosion loomed behind the Cold War, but as an unintended, long-term conse- quence of an unsustainable model of development. In a piece entitled The Climate of History: Four Theses, in my estimation one of the great papers of our time, Indian historian Dipesh Chakrabarty offers the historical background for the concept of the Anthropocene: The period of human history usually associated with what we today think of as the institutions of civilizationthe beginnings of agriculture, the founding of cities, the rise of the religions we know, the invention of writingbegan about ten thousand years ago, as the planet moved from one geological period, the last ice age or the Pleis- tocene, to the more recent and warmer Holocene. The Holocene is the period we are supposed to be in; but the possibility of anthropogenic climate change has raised the question of its termination. Now that humansthanks to our numbers, the burning of fossil fuel, and other related activities have become a geological agent on the planet, some scientists have proposed that we recognize the beginning VSHS: WHALE TAIL AFF: 23
of a new geological era, one in which humans act as a main determinant of the environment of the planet. The name they have coined for this new geological age is Anthropocene. (20809) Chakrabarty has drawn a brilliant set of conclusions from the premises underlying the concept of the Anthropocene. In short, Chakrabarty argues that it is no longer possible to write the histories of globalization, of capital, of culture without taking into account, at the same time, the history of the species. There are so many of us cutting down so many trees and burning so many fossils that the history of our culture can no longer be separated from the history of nature such as it once was. Whereas *f+or centuries scientists thought that earth processes were so large and powerful that nothing we could do could change them. . . . that human chronologies were insignificant compared with the vastness of geological time (Oreskes qtd. in Chakrabarty 206), we have now become agents of devastation to the environment who are capable of changing the most basic physical processes of the earth, of which global warming and the acidification of the oceans are but two of the most terrifying components. Our time is then characterized by an unprecedented convergence between ecology and culture, whereby it is no longer possible to separate human history and natural history. As Chakrabarty states, it is only recently that humans have become geo- logical agents to the extent that the dynamic of human history has be- gun to impact natural history. We must, therefore, put global histories of capital in conversation with the species history of humans (212). The concept of the Anthropocene, coined by ecologist Eugene Stoermer and later widely used by Nobel Prize winner atmospheric chemist Paul Crutzen, inaugurates for Chakrabarty a period that puts in crisis the separation between human history and natural history, a relatively stable one at least since Hobbes and Vico. Given their trajec- tory in recent decades, this places the humanities in a particular bind: if we could single out the major feature that traverses these disciplines in the twentieth century, it would be the culturalization that has accom- panied the so-called linguistic turn. The culturalist critique of natural- ization has been one of the distinctive features of the humanities (and to a certain degree, the social sciences) over the past century, if not the structuring one. The unveiling as cultural of traits assumed or mistaken as natural has been the bread and butter of humanistic disciplines. In that operation, nature occupies the position of a receding horizon, a limit that keeps being pushed back toward a realm that is never really present, never embodying a positive existence. In that model, we never really know what nature is, only what it is not and what the mistaken other has taken it to be. In the humanities, throughout the twentieth century, nature has been a constant presence, but only negatively, i.e. as the object of an operation of denaturalization. The renewed insepa- rability of natural history and human history pointed out above and experienced today challenges the humanities to understand nature in ways other than simply through the lens of a culturalist critique of naturalization. It is no longer enough to unveil the cultural ground of concepts, notions, and habits hitherto taken to be natural. In the ur- gency of the ecological crisis we live today, we can no longer afford not to face the question of a nature as positivity. To be sure, there are recent examples of how the relationship between nature and culture has been recast on a new basis. Cultural studies, anthropology, Legal Studies, and other disciplines have all been led to rethink paradigms that implicitly assumed nature and human history to be separate spheres. Michel Foucaults concept of biopolitics as well as Giorgio Agambens notion of thanatopolitics crossed that divide by inaugurating an understanding of governmentality as a tech- nology for the administration and disciplining of life. In the concept of biopolitics, nature is no longer a receding horizon or an illusion to be unmasked. Foucaults use of the term biopolitics has very little in common, of course, with earlier usages, either in German thinking of the 1920s, characterized by the understanding of the state as a living organism, or in French thinkers of the 1960s such as Starobinski and Jean Morin, who attempted to explain human history from life. Bio- politics for Foucault is not only a method for population control, but also a technology for the production and reproduction of life. The era of biopolitics is, then, the era of the biological regulation of popula- tion. Especially suggestive to me among the heirs of Foucault has been Argentinean philosopher Fabin Luduea, who in a book entitled La comunidad de los espectros argued against Agambens conception of politics as a supplement to bios simply added a posteriori on to a realm of raw zoe. As Brazilian essayist Alexandre Nodari noted in his review, Ludueas questioning of the opposition between bios and zoe grounds his choice for the term zoopolitics, rather than biopolitics, to des- ignate the primary substance of human politics (Nodari, Fabricar 2). What is stake in the production of humanity for Luduea is not simply an exclusion of zoos, of the animal. Politics has set itself, from the be- ginning, el arte de la domesticacin del animal humano, in a process where politics is always coextensive with eugenics (Luduea Romandini 21).2 It is not by chance, then, that Nodari sees a li nk between census and censorship, insofar as the counting of properties and of popula- tion, its redistribution according to governmental calculations in classes, the registry of births and deaths etc. allowed for a better organization of the republic, facilitating the detection and correction of unproductive elements (the vagabonds) by the censor (Nodari, Fabricar 3).3 Both in the Aristotelian response to Platonic eugenics as well as in Christianity, Luduea reads different attempts at producing an anthropotechnique that demands life to be separated away from its in- tensity, its force, its animality, which must then be measured, confined, calculated, and framed. Christianity would later, of course, think of immortality as the essential attribute that separates the human from the animal. For Thomas Aquinas, for example, the non-human animals had no place in the Kingdom of God (Nodari, Fabricar 4). The Christian invention of man, then, draws upon a methodical elimina- tion of the primordial animal. Socratic Greece and Christianity shared an attempt to purge animality out of man, to abolish the animalitas proper to man. uduea traces a continuity between the anthropo- techniques of Christianity and of modern humanism: from Descartes to Heidegger, animals tend to appear in the philosophical text precisely when the essence of humanity is being defined. Luduea is rightfully skeptical of some of the alternatives to this anthropotechnique that have been proposed, from the project of an affirmative biopolitics to the illusory attempt to void Christian patriarchalism by returning to its Pauline foundations, such as exemplified by Alain Badiou or Slavoj iek (Luduea Romandini 224). Ludueas book does not quite get there, but the conclusion seems ineluctable that a line of flight away from Christian-Western anthropocentrism imposes itself. According to what has been presented so far, what is, then, the contemporary in Agambens sense, i.e. what is the zone of untimeliness that would allow us to see the darkness of the present? In this sense, our times find their limit and their blind spot in the very project of the primacy of the human, the special and unique nature conferred on the homo sapiens. This is certainly not a fresh and unthought-of idea: from Montaigne to Nietzsche, there is a distinct critique of anthropo- centrism running parallel to the main tradition of Western philosophy. But learning what we have learned from Chakrabartys analysis of the cultural and political consequences of the Anthropocene Era, it is dif- ficult to refrain from the conclusion that the expansion and domination of man, the full realization of his power (and I use the gender-specific form deliberately here), can only mean the complete extinction of all biodiversity in the planet, much like Thomas Aquinas had imagined the Kingdom of God without any animals. What is contemporary to us and therefore most invisible, in a very literal sense, is precisely that the realization of the human project to its fullest extent can only lead to the destruction of his natural surroundings and, along with them, of course, the destruction of the very conditions of possibility in which man can exist as such. Here is the crux of the contemporary, or to use Walter Benjamins famous phrase, the index to a memory that flashes up in a moment of danger (255). It seems clear that we must think outside the anthropocentric paradigm, or pretty soon we will not be thinking anymore. An internal deconstruction of this paradigm will not suffice. Amerindian societies have, in fact, a wealth of knowledge ac- cumulated in what we might call a non- VSHS: WHALE TAIL AFF: 24
anthropocentric understand- ing of the world. My firm belief is that one of the inalienable ethical tasks for Latin American intellectuals today is to come to terms with that knowledge to the fullest extent possible. Its most sophisticated ac- count in contemporary anthropology has coalesced around the theory of Amerindian perspectivism, developed by Brazilian anthropologist Eduardo Viveiros de Castro over the past two decades. It should be pointed out at the outset that perspectivism here is not reducible to relativism, subjectivism, or any of the other correlate terms within the Western philosophical tradition. In fact, Amerindian perspectivism, Viveiros de Castro has argued, should be understood as orthogonal to the opposition between universalism and relativism (Os pronomes 115), such as it will become clear with an anecdote told by Lvi-Strauss in Race et histoire and Tristes tropiques.
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Plan: The United States federal government should fulfill its 1885 Treaty of Neah Bay obligations to the Makah Indian Tribe in the area of cultural whaling. VSHS: WHALE TAIL AFF: 26
Solvency 1. The discursive site of treaties offers unique space for resistance by indigenous groupswe 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, overly-metaphorical 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. VSHS: WHALE TAIL AFF: 27
2. Questioning the history of the Makah whale and investigating the underlying social structures allows for better policies. Focusing on establishing a framework for intercultural relations and cultural relativism first is key it is your role as an educator to question modern Eurocentric relations to natives. Sciullo 08 (Nick J., A Whale of a Tale: Post-Colonialism, Critical Theory, And Decontruction: Revisiting the International Convention for the Regulation of Whaling Through a Socio-Legal Perspective, HEINOnline //RJ)
This Article will weave critical theory,' deconstruction, and post-colonial' critiques into a tapestry of analysis of the International Convention for the Regulation of Whaling.' Central to this endeavor will be considering the numerous and unique cultures intimately affected,' their problems, their heritage and their his- tory.' The Article will focus, however, primarily on the Makah of North America-not because their whaling experience is more in- teresting or more worthy of attention, but because it is the most relevant to a critical inquiry into U.S. domestic law and policy. This Article will develop the whaling debate's background, but with an eye to opening up rhetorical space, not closing it. The goal here is not to rehash the excellent scholarship on the specific pro- visions, pitfalls, and successes of the laws, treaties, and other miscel- lanea that have colored the whaling debate's history.' Instead, this Article will consider post-colonialism, critical theory, and deconstructionism and how they can encourage scholars to ask questions that lead to better policies and a greater appreciation of different cultures. The very act of questioning will, in turn, lead to better policymaking.8 The Article will present a venue where ideas can exist peacefully together with little attention paid to the constraints of form and style.' It seeks not only to speak to academia, but to the masses. It will focus on the issues of cultural property and cul- tural identity, to international law," and historicism.12 In short, it will argue that the ban on whaling is a culturally imperialistic policy designed to assert the superiority of the non-whaling world over a host of cultures, including but not limited to the Makah, viewed as "other." This, the Article proceeds, is indicative of a decidedly post-colonial era where poorly conceived public policy, denigration of minority groups, and ethnocentrism reign supreme.1 3 Instances of post-colonialism abound,' but the whaling de- bate continues coming back to the forefront. Once maligned as an esoteric issue, the whaling debate has now become a serious matter for a diverse group of actors.'" The Article will avoid, for the most part, discussions of U.S. imperialism with respect to treaty negotiations and ratification or accession' 6 to the extent that those argu- ments devolve into a "he said, she said" battle amongst conservative and liberal forces pushing broad policy platforms, economic arguments for and against whaling," and most of the environmental arguments related to whaling.'" Those are all important argu- ments that figure greatly into the broader discussion of whaling, but to give each its due would exceed this Article's scope and pur- pose. Furthermore, a treatise on treaty history would not encourage a forward-looking, more modern intercultural relations. The Article will conclude with arguments in favor of cultural relativism and an ethic of critical inquiry. It will call for public policy that is more responsive to groups of divergent backgrounds and less imperialistic. 3. Through our method of indigenous affirmation, we open up avenues to understand a multiplicity of cultures at once rather than viewing philosophies or ontologies through the lens of competition, understanding whaling creates a political space of inclusion rather than exclusion. Sciullo 08 (Nick J., A Whale of a Tale: Post-Colonialism, Critical Theory, And Decontruction: Revisiting the International Convention for the Regulation of Whaling Through a Socio-Legal Perspective, HEINOnline //RJ) Indigenous peoples of what is now the United States are diverse and distinct from White culture. 2 They existed free from the influences of Christianity, Europe, and the powerful oppression of manifest destiny. Indigenous peoples had thriving economies that rivaled the efficiency and success of more storied European econo- mies.3 ' They advanced powerful ideas of philosophy, science, agriculture, and VSHS: WHALE TAIL AFF: 28
religion.34 Indigenous people are not alike, nor are all members of a particular culture, tribe, clan, or other group alike. Their diversity is one of the most interesting aspects of indig- enous studies. Steven L. Newcomb argues that "we as Indigenous peoples must be extremely cautious and discriminating when it comes to conceptualizing ourselves in terms of the non-Indian society's dominating categories, concepts, and metaphors, and other cognitive operations."3 While clearly arguing for resistance by native peo- ples, Newcomb's call for caution may be applied to all. Our historical understanding should be characterized by the active inclusion of competing views, especially those of native peoples who have been particularly and carefully removed or "otherized" in discus- sions about their history and the importance of that history in shaping current cultural practices. Whaling has been a historical reality for many groups over the years. Much of the whaling debate in the United States focuses on the cultural/historical significance of whaling to the Makah, but this discussion is shrouded in disdain, if not absolute disgust, for whaling." For the Makah, whaling is a culturally significant prac- tice, and not simply an exploitation of resources." The Makah began whaling, roughly 4000 years ago, and have done so continuously for the past 1500 years. 3 9 They are an ocean peo- ple,40 having long depended on the ocean to maintain their soci- ety."1 Whaling has provided valuable resources beyond supplying food,4 2 including providing heat,4 3 tradable goods," spiritual sig- nificance," and other necessities. The Makah is "the only tribe in the United States with an explicit treaty right to hunt whales."" Whaling is not a practice unique to the Makah. New Zealand has a long history of whaling.4 7 Japan also has a long history of whaling that dates back to its earliest coastal communities." The Basque people whaled in the 13th century.49 To understand the cultural significance of whaling, one must understand that whaling is an historical practice that dates back thousands of years,50 and is not a new invention, trend, or exploitive behavior. Without a his- torical understanding of whaling, the scholar is unable to appreci- ate the nuances of the arguments for cultural whaling. Failing to understand its history inevitably leads to a failure to understand cultural claims. Cinnamon Carlarne, an author who has written extensively on whaling, is one such scholar who has failed to fully explore the traditions of the Makah while thoroughly analyzing other whaling cultures.5 ' In a recent law review article,5 2 Carlarne, who has an impressive record of publication and scholarly achievement5, 3 does not give so much as a nod to the continuing debate surrounding the Makah. The history of the International Whaling Commission ("IWC") in her article is self-described as brief, but manages to list multiple other cultures who have participated in whaling.54 When discussing an issue that is of tremendous international importance, there is a danger of forgetting the many groups inside a country that may have different and competing stakes in the issues and pol- icies at hand. This is truly an error or omission that speaks to the tendency of scholars to ignore or conveniently forget the discus- sion of a country's indigenous populations. Whales are important both as a source of food and as an essen- tial component of ocean ecosystems.55 Ecosystem management is not a one-way street. The call to halt whaling is not a reaction to recent events, but is instead positioned against a long history. The problem with many modern environmental movements is that they take a tragically extreme worldview-one that seeks not compro- mise, but victory. That very ethic of victory seems counterproductive for an environmentalist agenda, because it is indeed the capitalist desire for victory that many environmentalists attack. It is in this rhetorical space that we see division amongst environmen- talists into at least two camps-preservationists"6 and conservation- ists.57 In order to manage effectively the many competing interests in an ever-changing and increasing complex environment, we must rise to the challenge and promote an enlightened discussion focused on compromise and understanding, rather than a competitive engagement. What can be said of the post-critical legal scholar? Both noth- ing and everything simultaneously. As the field of critical legal studies" expands, so too does the resistance to expansion."o The journey beyond traditional understandings of law-natural law," positivism, 2 and realism"6 -has been difficult. Scholars in the new school, who grew up in an era radically different from the formalis- tic 1940s and 1950s, exhibit the characteristics of the traditional drama's tragic hero. 4 At a more basic level, they bring new exper-iences to the table. Applied to whaling, this means we may be able to develop ways of thinking about an ancient practice that moves beyond polarizing rhetorical battles. VSHS: WHALE TAIL AFF: 29
4. You have an ethical responsibility as an educator to investigate the colonial histories of policies specifically regarding indigenous people nuclear war impacts via of ridiculous internal link scenarios is not probable, but our imperialistic attitude towards natives is a constant question of survival for the Makah culture and people. Our discursive presentation of indigenous narratives offers a counterhegemonic approach to politics. Roberts 10 (Treaty Rights Ignored: Neocolonialism and the Makah Whale Hunt, Author(s): Christina Roberts, Source: The Kenyon Review, New Series, Vol. 32, No. 1 (WINTER 2010), pp. 78-90, Published by: Kenyon College, Stable URL: http://www.jstor.org/stable/40600263 . Accessed: 14/07/2014 21:55 //RJ)
Indigenous peoples of the Pacific Northwest practiced traditions that have been dramatically affected by aggressive settlement and the commodification of natural resources, and they now must confront attempts to challenge their traditions and rights through the use of pervasive neocolonialism. The fact that the Makah Nation is placed in a position where it has to obtain permission from local, national, and even international systems to hunt a whale is an indication of the current complexities of maintaining treaty rights and certain cultural traditions. The often-extreme responses to the Makah whale hunt directly threaten the Makah Nation's tribal sovereignty, and their treaty rights are targeted by blatant neocolonialism and anti-Indigenous sentiments. Indigenous communities have beliefs and narratives distinct to their own histories and traditions, and yet they are still held to the standards of other nations and individuals. In addition to expertly navigating the legal system in order to maintain certain cultural beliefs and traditions, many Indigenous communities face added pressures to conform to the ideological structures of dominant cultures and succumb to hegemony. In order to continue practicing cultural tradi- tions that do not resonate with beliefs of dominant cultures, Indigenous communities are also under pressure to validate their cultures through ongoing Indigenous tribal narratives that demonstrate the importance of specific traditions and practices. Indigenous tribal narratives are precious and vital to a collective understanding of the world and its history, and these narratives need to be more visible and available to deflect neocolonialism. While ceremonial knowledge should be respected, it cannot be respected by individuals who do not understand its importance. By either ignoring or being unaware of the value of these narratives, individuals perpetuate the colonialist agendas of the past and embrace forms of neocolonialism. Neocolonialist rhetoric will continue to manifest whenever a majority culture does not approve of Indigenous customs. Yet, indi- viduals who reside within the United States of America must see themselves as participants in a global world, now more than ever before. The U.S. and its citizens have an obligation to the Indigenous peoples within the United States and its territories who are still experiencing the effects of colonization. Neocolonialism and the use of blatant neocolonialist rhetoric further reinforce the wounds of colonization and marginalize Indigenous populations through economic, legal, cultural, and political oppression. It is time that neocolonialism is exposed so that Indigenous communities can be freed from colonialism in all of its forms, and Indigenous tribal narratives offer one possible defense against neocolonialism in all of its forms.