Native American Subsistence Issues in US Law

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 paper 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 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 paper 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