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Treaty Rights and the Right to Culture: Native American Subsistence Issues in US Law

The National Marine Fisheries Service, Seattle, WA

The interplay of treaty rights with the right to culture has produced a variety of results for Native American subsistence hunting and fishing rights in the United States. Where allocation and conservation measures fail to account for cultural considerations, conflict ensues. This article discusses three examples: waterfowl hunting in Alaska, Northwest salmon fishing, and Inuit and Makah whaling. Each demonstrates that treaty rights are a more powerful force than cultural rights in the law, but that both play important roles in actual policy outcomes. A more detailed examination of whaling indicates how the insertion of needs-based criteria into a framework of cultural rights shifts the benefit of presumption away from indigenous groups. The cultural revival issues and conflicting paradigms involved in Makah whaling policy debates indicate how notions of tradition, authenticity, and self-determination complicate the process of producing resource policies that recognize cultural diversity.

Key Words: cultural revival • hunting • Inuit • Makah • whaling

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