The International Whaling Convention (IWC)
and Legal Issues Related to Aboriginal Rights
Kristina Alexander
Legislative Attorney
July 22, 2013
Congressional Research Service
7-5700
www.crs.gov
R40571
The International Whaling Convention and Legal Issues Related to Aboriginal Rights
Summary
The International Whaling Commission (IWC) has 88 members divided almost evenly between
countries that condone whaling and those that favor whale conservation. This situation leads to
contentious votes and accusations that decisions are not based on science but on politics, in
particular, whether or not a country favors whaling. Members of Congress have introduced
measures to advance U.S. policy within the Commission to respond to IWC actions. One area of
contention is the right of aboriginal groups to hunt whales (sometimes referred to as indigenous
whaling). Aboriginal subsistence whaling catch limits are set by the IWC for aboriginal peoples
in four countries: the United States (bowhead and gray); Denmark (Greenland) (fin, minke,
bowhead, and humpback); Saint Vincent and the Grenadines (humpback); and Russia (gray and
bowhead).
The International Convention for the Regulation of Whaling (the Convention) has addressed
aboriginal whaling since it was signed on December 2, 1946, by the United States and 14 other
countries. The Convention limits how many bowhead or gray whales U.S. aboriginal groups may
harvest by setting catch limits for five-year periods. The parties could not agree to limits for the
current period of 2013 through 2018 for all aboriginal groups, but the United States’ catch limits
were set at 336 for the period, with no more than 67 strikes per year.
Whaling also is restricted in the United States by three domestic laws: the Marine Mammal
Protection Act (MMPA); the Endangered Species Act (ESA); and the Whaling Convention Act
(WCA). The MMPA prohibits all whaling except for subsistence use by Alaska Natives.
Similarly, the ESA prohibits taking listed whales except for subsistence use by Alaska Natives.
The WCA, the enabling act for the Convention, allows whaling by aboriginal peoples to the
extent it does not conflict with the Convention. Despite these statutory exceptions allowing
aboriginal whaling, the Secretary of Commerce can restrict such whaling by adopting specific
regulations under either the MMPA or the ESA. Currently, only the Cook Inlet stock of beluga
whales is protected under such regulation. The Makah Tribe (in the state of Washington) is the
only non-Alaska indigenous group in the United States with the legal right to kill whales. This
right is based on treaty, but the Makah must still comply with the MMPA by receiving a permit
that allows whale harvest. Compliance with U.S. law and the Convention determines the types
and numbers of whales and where and when they are killed.
More recent legislation regarding whaling typically is done by resolution. The only legislation
proposed in the 113th Congress is an amendment to end the tax deduction allowed to Alaska
Native whaling (S.Amdt. 414 to S.Con.Res. 8). It was withdrawn. Legislation proposed in the
111th and 112th Congresses addressed ending all nonaboriginal whaling, including scientific
whaling (H.Res. 714 (112th Congress); H.R. 2455, S. 3116 (111th Congress)), and would have
made the U.S. representative to the IWC a federal employee (H.R. 2955 (111th Congress)).
Previous Congresses have addressed whaling in general, and aboriginal whaling in particular.
Legislative measures, primarily in the form of concurrent resolutions, have been proposed in four
categories: protesting commercial, scientific, or community (nonaboriginal) whaling; ensuring
aboriginal whaling rights; providing a tax break for aboriginal whaling captains; and addressing
the United States’ policy at the annual meetings of the IWC.
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The International Whaling Convention and Legal Issues Related to Aboriginal Rights
Contents
Structure and Organization of the International Convention for the Regulation of Whaling .......... 1
Evolution of the IWC ....................................................................................................................... 5
Drawbacks and Benefits of the United States’ Continued Membership in the Convention............. 6
The Convention and U.S. Law ......................................................................................................... 7
The Whaling Convention Act .................................................................................................... 7
Other U.S. Law Related to the IWC .......................................................................................... 8
Pelly Amendment ................................................................................................................ 8
Packwood-Magnuson Amendment ..................................................................................... 9
Aboriginal Whaling Under Domestic Law ...................................................................................... 9
MMPA and ESA Regulations Restricting Aboriginal Whaling ............................................... 10
Makah Tribe Whaling Rights .................................................................................................. 11
Subsistence Hunting Catch Limits .......................................................................................... 12
Aboriginal Hunting Tax Deduction ......................................................................................... 13
Figures
Figure 1. Catches of Whales Taken Under Scientific Permit ........................................................... 2
Figure 2. Whale Takes by IWC Members ........................................................................................ 4
Figure 3. New Members of the International Convention for the Regulation of Whaling .............. 6
Tables
Table 1. Member Nations and Date of Entering Convention ......................................................... 13
Table 2. Cetaceans Listed Under the Endangered Species Act or Categorized as Depleted
Under the Marine Mammal Protection Act ................................................................................ 15
Appendixes
Appendix A. Catches by IWC Member Nations in the 2010 and 2010/2011 Seasons .................. 16
Appendix B. Catches by IWC Member Nations in the 2009 and 2009/2010 Seasons .................. 17
Contacts
Author Contact Information........................................................................................................... 18
Acknowledgments ......................................................................................................................... 18
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Structure and Organization of the International
Convention for the Regulation of Whaling
The International Convention for the Regulation of Whaling (the Convention) was signed
December 2, 1946, by the United States and 14 other countries.1 The purpose of the Convention is
to restore and maintain a sustainable whale population by regulating whaling.2 The Convention
established the International Whaling Commission (the Commission or the IWC), made up of one
representative from each member country. The Commission is chaired by a member state,
typically following service as Vice Chair. The Chair is held by Jeannine Compton-Antoine from
St. Lucia for a two-year term. The Commission has several committees: Conservation, Scientific,
Technical, and Finance and Administration. Aboriginal subsistence whaling is addressed by a
subcommittee of the Technical Committee.
The Convention also includes a Schedule, described within the Convention as providing
“regulations with respect to the conservation and utilization of whale resources.”3 The Schedule
includes the more operational provisions of the Convention, such as definitions, classifications of
whales, limits on factory ships, jurisdictional limits on captures, information for scientific
permits, and catch limits for aboriginal subsistence use (sometimes known as indigenous
whaling). It is regularly amended by the parties, as allowed by Article V(1) of the Convention.
The Schedule has the same force and effect as the Convention.
Some of the duties of the Commission are described in Article IV of the Convention, which
requires the Commission to do the following: encourage, recommend, or organize studies and
investigations relating to whales and whaling; collect and analyze statistical information
concerning whale stocks and the effects of whaling activities thereon; and study, appraise, and
disseminate information concerning methods of maintaining and increasing the populations of
whale stocks.
Article V of the Convention authorizes the Commission to set catch limits for aboriginal
subsistence whaling. These limits require a three-fourths majority to pass.4 The catch limits
become effective on the member countries 90 days after notification, unless a country objects.
The catch limits establish a five-year quota depending on the stock. The aboriginal subsistence
whaling catch limits applicable to United States’ aboriginal peoples are for bowhead whales and
gray whales. In addition to the United States, indigenous whaling is also conducted in Denmark
(Greenland) (fin, minke, bowhead, and humpback), Saint Vincent and the Grenadines5
(humpback), and Russia (gray and bowhead). At its last meeting, in 2012, the parties were unable
to reach a decision as to catch limits for the five-year period 2013-2018 for Greenland, but
consensus was reached for the other aboriginal groups. The United States’ catch limit is 336
1 TIAS 1849; Protocol amending 1956, TIAS 4228. Those countries were Argentina, Australia, Brazil, Canada, Chile,
Denmark, France, the Netherlands, New Zealand, Norway, Peru, South Africa, the Soviet Union, and the United
Kingdom. Some have withdrawn, some have rejoined, and some unions have split into multiple countries. There are
now 89 members. See Table 1 for the list of parties (also called member states) to the Convention.
2 Preface, Art. V.
3 Art. V(1).
4 Art. III(2).
5 Saint Vincent and the Grenadines is located in the Caribbean Sea southeast of Puerto Rico.
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whales landed during that five-year period, with not more than 67 strikes per year. Denmark has
indicated it will use proposed catch limits for Greenland until the IWC reaches an agreement.6
The Schedule to the Convention describes date, location, and maturity limits on killing whales,
based on the type of whale stock. Since 1986, commercial whaling has been banned.7 The
Convention allows certain types of whaling, however, if done under a scientific permit: “any
Contracting Government may grant to any of its nationals a special permit authorizing that
national to kill, take and treat whales for purposes of scientific research subject to such
restrictions as to number and subject to such other conditions as the Contracting Government
thinks fit.”8
The only requirement for the scientific exemption is that the member state must report how many
permits it issues.9 Scientific permits are a divisive issue among members. Only four countries
have used the permits since a moratorium on commercial whaling went into effect in 1986: Japan,
Iceland, Norway, and South Korea. Only Japan continues to use scientific permits for their
whaling activities. Since 1985, Japan has killed more than 14,000 whales under scientific permits.
Figure 1. Catches of Whales Taken Under Scientific Permit
1986-2011
Source: Congressional Research Service, based on data from the International Whaling Commission, available at
iwc.int/table_permit.
6 Letter from the Denmark Minister of Foreign Affairs to IWC Commissioners and Contracting Governments,
Greenland Aboriginal Subsistence Whaling (July 1, 2013), available at http://iwc.int/cache/downloads/
c0mqq34ohp4ck8ccko084ko0k/Letter%20from%20Denmark%20to%20IWC%20Greenland%20asw.pdf.
7 The Schedule, III, 10(e). The Convention covers the 13 species of large whales, but does not cover small cetaceans,
such as beluga whales. Therefore, while the IWC limits how many bowhead or gray whales aboriginal groups may
harvest, aboriginal small cetacean harvest is not similarly restricted by the Convention.
8 Art. VIII.
9 Art. VIII(1).
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Some Members of Congress have indicated displeasure over the practice, introducing resolutions
expressing opposition to killing whales under scientific permits.10 Only S.Res. 226 (105th
Congress) has passed, although the House passed a concurrent resolution in the 110th Congress.11
No such legislation has been introduced in the 113th Congress. H.Res. 714, in the 112th Congress,
expressed support to end all commercial whaling, even when done under scientific permit,
pointing to the number of whales killed since the commercial ban went into place. H.R. 2455, in
the 111th Congress, would have directed the U.S. representative to the IWC to refuse to condone
lethal scientific whaling.
Also, despite the commercial whaling ban, Norway and Iceland hunt whales for commercial use
under either an objection or reservation to that ban. Norway filed an objection at the time the ban
was proposed and so is not bound by it.12 Iceland quit the IWC after the ban went into place, but
returned to membership in 2002, filing a reservation to the commercial ban.13 In the 2011 and
2011/2012 season, Norway killed 533 whales under objection, and Iceland killed 58 whales under
reservation.14
10 See, e.g., H.Con.Res. 350 (110th Congress); S.Con.Res. 86 (110th Congress); H.Con.Res. 164 (109th Congress);
S.Con.Res. 33 (109th Congress).
11 That resolution stated in pertinent part: “That it is the sense of the Senate that at the 50th Annual Meeting of the
International Whaling Commission in Oman the United States should ... oppose the lethal taking of whales for
scientific purposes unless such lethal taking is specifically authorized by the Scientific Committee of the Commission.”
12 See The Schedule, III, 10(e), footnotes.
13 See IWC Status of the Convention, footnote 39, available at http://iwcoffice.org/_documents/commission/
convention_status.pdf.
14 IWC, Annual Report of the International Whaling Commission 2011, Annex I, available at http://iwcoffice.org/
_documents/meetings/jersey/AnnexI-Catches.pdf.
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Figure 2. Whale Takes by IWC Members
2011 and 2011/2012 Season
(data from previous seasons are available in Appendix A and Appendix B)
Source: Congressional Research Service, compiled from data from IWC, iwc.int/table_objection.
Each member state regulates its own compliance and enforcement under the Convention. Under
Article IX, each party is required to take “appropriate measures to ensure the application of the
provisions of [the] Convention.” There is no independent enforcement arm of the Commission.
Article IX also provides that each member state must take enforcement action against vessels or
persons under its jurisdiction that have violated the Convention.
The following infractions were reported for the 2011 whaling season:
• United States—take of one bowhead calf; and
• South Korea—take of 21 minke whales.15
15 IWC, Report of the Infractions Sub-committee (IWC/64/Rep4rev1) (March 7, 2012), p. 7, available at http://iwc.int/
cache/downloads/3aouz5nplyqs08oo88wcks8c8/64-Rep4rev1.pdf.
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Evolution of the IWC
Some have argued that the thrust of the Convention has nearly reversed since its inception,
pointing out that the Convention initially allowed killing tens of thousands of whales, but now
only allows several hundred takes and only by aboriginal hunters.16 This has been described as a
move “from an institution aimed at preserving whaling to an institution seeking to preserve
whales.”17
The Commission is divided almost evenly between pro-whaling and anti-whaling countries,
leading to contentious votes and accusations that decisions are not based on science, but on
politics, in particular whether a country favors commercial whaling. Because amendments to the
Schedule require a three-quarters majority vote, decisions can be thwarted by either side. When
this has happened, diplomacy has been the answer. For example, when the decision to set the
2008-2012 aboriginal subsistence quota for bowhead and gray whales was threatened with defeat
(meaning no aboriginal whaling would be allowed), diplomatic action by the United States
allowed the vote to go through, and the quota was established.
The fact that there is a division between pro-whaling and anti-whaling countries is worth
reviewing, considering that very few countries actually hunt whales. Only seven member
countries to the Convention kill whales,18 but the Convention has 88 members.19 Membership has
surged as whaling has become more restricted. Each side accuses the other of “buying” countries’
memberships to stack votes in their favor. For example, landlocked countries that lack a whaling
culture, such as Mongolia, Luxembourg, and Mali, have joined in the last decade. Of the 88
members, only 35 have submitted legislation regarding marine mammal management, as
required, perhaps an indication of the importance of whales to those members.20
16 John K. Setear, Can Legalization Last?: Whaling and the Durability of National (Executive) Discretion, 44 Va. J.
Int’l L. 711, 732 (2003-2004).
17 Id. (emphasis in original).
18 Denmark (Greenland), Iceland, Japan, Norway, Russia, Saint Vincent and the Grenadines, and the United States. See
Figure 2 for data on whaling by these countries.
19 Greece withdrew from the IWC effective June 30, 2013. See Circular Communication to Commissioners and
Contracting Governments, Withdrawal of Greece from the Convention, IWC.CCG.1063 (July 2, 2013), available at
http://iwc.int/cache/downloads/dgofwnmucu804cscogswwck04/IWCCCG1063.pdf.
20 IWC, Report of the Infractions Sub-committee (IWC/64/Rep4rev1) (March 7, 2012), p. 3, available at http://iwc.int/
cache/downloads/3aouz5nplyqs08oo88wcks8c8/64-Rep4rev1.pdf.
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Figure 3. New Members of the International Convention
for the Regulation of Whaling
(1950-2013)
Source: Congressional Research Service, based on data from the IWC, available at http://www.iwcoffice.org/
commission/iwcmain.htm.
Drawbacks and Benefits of the United States’
Continued Membership in the Convention
The United States plays a unique role in the IWC. The United States allows indigenous takes of
whales but is a strong opponent of commercial whaling. This may give the United States a
centrist role between the two factions of pro-whaling and anti-whaling member countries. The
United States also provides significant financial support and scientific expertise to the IWC.
The future of the IWC has been a topic of discussion among its members for many years. Some
argue that the Convention plays a significant role in whale management, not just by setting
quotas, but by its research through the Scientific Committee. The IWC is the primary
international body for the worldwide study of whales. This may be seen as a benefit to the
aboriginal hunters. By using scientific data as the underlying basis for the aboriginal subsistence
quotas, the political pressures to stop that whaling are perceived as neutralized.
On the other hand, if the United States were no longer a member, its aboriginal people might not
be limited by a quota, and could take whales under the Marine Mammal Protection Act (MMPA)
and the Endangered Species Act (ESA), provided the takes were for subsistence use and not
wasteful. The United States could control the taking by exercising its regulatory authority under
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the MMPA and ESA for depleted stocks and/or listed species.21 (See “Aboriginal Whaling Under
Domestic Law,” below, for more discussion on these acts.)
The IWC appointed a Small Working Group on the Future of IWC to address the issues facing the
Commission. The Small Working Group produced a progress report in February 2009, noting the
IWC’s uncertain future: “the international whaling regime as embodied in the [Convention] is at a
crossroads, beset by seemingly fundamental disagreements between Contracting Governments as
to its nature and purpose.”22
The Convention and U.S. Law
The Whaling Convention Act
The International Convention for the Regulation of Whaling was approved by the Senate and
ratified by the President as a treaty. In the United States, for the purposes of domestic law, this
and any other treaty is as legally binding as the Constitution. Article VI of the U.S. Constitution
provides that “this Constitution ... and all Treaties made, or which shall be made ... shall be the
supreme Law of the Land; and the Judges in every State shall be bound thereby.” Not only is a
treaty the supreme federal law, but provided that it is otherwise constitutional, it also is binding
on states.23 As a Convention party, the United States is bound by its Convention obligations
internationally and is expected to carry out Convention obligations in good faith.
The Senate found that the Convention was not entirely self-executing, meaning that implementing
laws were required: “legislation is needed to enable the United States to discharge the obligations
assumed under the agreement.”24 The Whaling Convention Act of 1949 (WCA) implements the
Convention under U.S. law.25 The WCA makes it illegal to engage in whaling in violation of the
Convention, or to purchase, sell, import, or export any whale product taken in violation of the
Convention. Convictions can result in up to a year in prison, or a fine of up to $200,000 for
corporations and $100,000 for individuals.26 Enforcement is shared among many agencies,
including the National Oceanic and Atmospheric Administration (NOAA), the Coast Guard, and
Customs and Border Patrol.27 As a procedural matter, the WCA authorizes the Secretary of State
to make any objections to amendments to the Schedule on behalf of the United States, with the
21 MMPA—16 U.S.C. §1371(b) (providing that where a stock is depleted, NOAA may set regulations for the taking of
marine mammals); 16 U.S.C. §1539(e)(4) (providing NOAA may regulate the taking of whales listed under the ESA
where NOAA determines that the taking may materially and negatively affect the species).
22 Report on the Small Working Group (SWG) on the Future of the International Whaling Commission, Chairs’
Suggestions on the Future of the International Whaling Commission, p. 3 (February 2, 2009). Document available from
CRS. In 2010, the Commission considered the Chairs’ report as part of this process, but failed to reach consensus and
the process was “paused.” The Commission decided to continue the “pause” at its 2011 meeting.
23 Missouri v. Holland, 252 U.S. 416, 434-35 (1920).
24 1950 U.S. Code Cong. & Admin. News 2943 (H.Rept. 81-2514) (repeating in substance the Senate Report).
25 16 U.S.C. §§916-916l.
26 16 U.S.C. §916f (providing that violations may be punished by up to one year in prison). See also, 18 U.S.C. §§3559,
3571 (designating violations punishable by up to one year in prison as Class A misdemeanors with a criminal fine of up
to $100,000 for individuals, and $250,000 for corporations). The whale parts and products are subject to forfeiture. 16
U.S.C. §916f.
27 16 U.S.C. §916g. Also, state employees may be authorized to enforce the act. 16 U.S.C. §916j(c).
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concurrence of the Secretary of Commerce.28 This eliminates any need for re-ratification of an
amended Schedule.
Other U.S. Law Related to the IWC
Pelly Amendment
Two other statutes address the Convention. Under 22 U.S.C. Section 1978(a)(2), if another
country is violating the Convention, the United States may impose sanctions: “When the
Secretary of Commerce determines that nationals of a foreign country, directly or indirectly, are
conducting fishing operations in a manner or under circumstances which diminish the
effectiveness of an international fishery conservation program, the Secretary of Commerce shall
certify such fact to the President.” Sanctions are addressed by Section 1978(a)(4):
Upon receipt of any certification made under paragraph (1) or (2), the President may direct
the Secretary of the Treasury to prohibit the bringing or the importation into the United
States of any products from the offending country for any duration as the President
determines appropriate [as allowed by the World Trade Organization and other applicable
trade law].29
This law is referred to as the Pelly Amendment (to the Fisherman’s Protective Act of 1967). The
Supreme Court describes the amendment as Congress’s reaction, in part, to “the IWC’s inability
to enforce its own quota.”30 It applies to the Convention because international fishery
conservation program is defined within the statute as including any multilateral agreement “the
purpose of which is to conserve or protect the living resources of the sea, including marine
mammals.”31
In 2004 and 2011, the Secretary of Commerce certified to the President that Iceland was
undermining the effectiveness of the Convention.32 Among the reasons for the 2011 certification
were Iceland’s continued harvest of endangered fin whales and Iceland’s participation in
commercial whaling by exporting whale meat. The Iceland Ministry of Fisheries and Agriculture
responded that fin whales were abundant and that Iceland’s harvest of fin whales was as
sustainable as the United States’ aboriginal harvest of bowhead whales.33 The 2011 Certification
indicates that Japan is under three certifications for its use of scientific permits for whale
hunting.34 However, the history of the Pelly Amendment is one of certifications without
28 16 U.S.C. §916b.
29 Prior to 1992 the embargo was limited to fish and wildlife products, but was amended to include any products. P.L.
102-582 §201(a)(1).
30 Japan Whaling Association v. American Cetacean Society, 478 U.S. 221, 225 (1986).
31 22 U.S.C. §1978(h)(3).
32 See Letter to the President of the United States from the Secretary of Commerce (July 19, 2011), available at
http://www.noaanews.noaa.gov/stories2011/pdfs/pellygrantsignedletter_final.pdf. The 2004 Certification was retained
in 2006.
33 Iceland Ministry of Fisheries and Agriculture, Press Release, Surprise over Pelly Amendment Certification of Iceland
by the US Department of Commerce (July 20, 2011), available at http://eng.sjavarutvegsraduneyti.is/news-and-articles/
nr/10580.
34 See Letter to the President of the United States from the Secretary of Commerce (July 19, 2011), at 3.
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sanctions.35 In response to the 2011 Iceland Certification, President Obama directed federal
agencies to “raise concerns regarding commercial whaling,” among other administrative
evaluations and diplomatic pressures, but did not impose any sanctions.36 In the season following
the certification, Iceland did not catch any fin whales.37
Packwood-Magnuson Amendment
The Packwood-Magnuson Amendment (to the Magnuson Fishery Conservation and Management
Act) allows a similar certification by the Secretary of Commerce: “that nationals of a foreign
country, directly or indirectly, are conducting fishing operations or engaging in trade or taking
which diminishes the effectiveness of the International Convention for the Regulation of
Whaling.”38
Such a certification acts procedurally the same as one made under the Pelly Amendment.
However, the sanctions are different. While the Pelly Amendment speaks of discretionary import
bans, if a certification is made under the Packwood-Magnuson Amendment, the Secretary of State
is directed to reduce the allowable level of U.S.-permitted fishing by not less than 50%.39
However, since no foreign countries have fishing rights in U.S. waters, this sanction is no longer
used.
Aboriginal Whaling Under Domestic Law
Three U.S. laws that otherwise prohibit most whaling allow aboriginal groups to kill whales: the
MMPA, the ESA, and the WCA. The MMPA,40 passed in 1972, prohibits killing or harassing
whales, unless otherwise permitted under the statute.41 Taking whales may be permitted for
scientific research, enhancing the survival or recovery of the species, and when incidental to an
otherwise lawful activity. The MMPA also provides that any “Indian, Aleut, or Eskimo” who lives
on the coast of Alaska may take a marine mammal for subsistence purposes or for native
handicrafts and clothing, provided the take is not wasteful.42
The ESA43 also prohibits whaling, to the extent that whales are listed under the act. (Bowhead
whales are an endangered species; the stock of gray whales hunted by U.S. indigenous peoples is
not. See Table 2 for a list of whales and whether they are listed under the ESA.) Generally
speaking, the ESA prohibits killing or harming listed species, and prohibits the trade, possession,
or transport of listed animal species or products made from them. Like the MMPA, it has an
35 See Japan Whaling Association v. American Cetacean Society, 478 U.S. 221, 225 (1986).
36 Memorandum from President Barack Obama to Cabinet Secretaries, et al., Memorandum Regarding Pelly
Certification and Icelandic Whaling (September 15, 2011), at http://www.whitehouse.gov/the-press-office/2011/09/15/
memorandum-regarding-pelly-certification-and-icelandic-whaling.
37 See IWC, Catches Under Objection Since 1985, at http://iwc.int/table_objection.
38 16 U.S.C. §1821(e)(2)(A).
39 16 U.S.C. §1821(e)(2)(B).
40 16 U.S.C. §§1361-1384.
41 16 U.S.C. §1372.
42 16 U.S.C. §1371(b).
43 16 U.S.C. §§1531-1544.
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exception for Alaska natives, but the ESA exception applies not just to Indians, Aleuts, and
Eskimos, but also to any permanent resident of an Alaskan native village.44 The exception allows
those parties to take listed species when the taking is “primarily for subsistence purposes,” which
may include selling authentic native handicrafts.
These two statutes, if viewed by themselves, would allow Alaskan Natives to kill any whale, even
an endangered one, provided the harvest is for nonwasteful subsistence use (and that no special
regulation restricts harvest, as discussed below).45 However, aboriginal groups must also comply
with the WCA. The WCA states that it is illegal to kill whales in violation of the Convention.46
The Commission sets subsistence whaling catch limits for bowhead and gray whales.47
Accordingly, while subsistence whaling by Alaskan groups has few restrictions under the MMPA
and the ESA, it is limited by the IWC catch limits, although, as noted above, the IWC regulates
only large whales, and not small cetaceans such as beluga.
MMPA and ESA Regulations Restricting Aboriginal Whaling
Despite exceptions allowing subsistence harvest, both the MMPA and the ESA authorize
regulations preventing Alaskan natives from killing protected species where that killing would
undermine the acts’ purposes.
The MMPA allows regulations to limit taking “any species or stock of marine mammal” by
Alaska Natives under 16 U.S.C. Section 1371(b). The regulations may restrict the subsistence
harvest based on “species or stocks, geographical description, ... season, or any other factors ...
consistent with the purposes of this chapter.”48 Under 16 U.S.C. Section 1373, the regulations
must be based on the “best scientific evidence available” and follow a formal agency hearing.
The ESA authorizes the Secretary to restrict aboriginal takes where the harvest “materially and
negatively affects the threatened or endangered species.”49 Following notice and hearing required
by 16 U.S.C. Section 1539(e)(4), the regulations may be based on “species, geographical
description of the area included, the season for taking, or any other factors ... consistent with the
policy of [the ESA].”
Regulations adopted pursuant to the MMPA restrict subsistence whaling of the Cook Inlet stock
of beluga whales. Aboriginal harvest of those whales has been controversial. The Cook Inlet stock
of beluga whales is an endangered species, and is also protected under the MMPA. In 1999,
Congress temporarily prohibited killing Cook Inlet beluga whales under an MMPA exemption
44 16 U.S.C. §1539(e)(1).
45 16 U.S.C. §1371(b), and 16 U.S.C. §1539(e)(4), respectively.
46 16 U.S.C. §916c(a)(1). To the extent that whale products were sold or moved across state or international boundaries,
subsistence whaling could also violate the Convention on the International Trade of Endangered Species of Wild Fauna
and Flora (CITES), which prohibits trade without the appropriate permit(s), and the Lacey Act, which prohibits the
transport across federal or state lines of species that were taken in violation of a state, federal, or international law.
47 The catch limits are set by whale species, not by country. Any nation with aboriginal hunting rights could take
bowhead and gray whales, but the countries have agreed that the United States’ aboriginal hunting will be of bowhead
while the Russian aboriginal hunting will be of gray whales. Once permitted, the Makah would hunt gray whales from
the same stock as the Russians.
48 16 U.S.C. §1371(b).
49 16 U.S.C. §1539(e)(4).
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unless done via a cooperative agreement between NOAA and the “affected Alaskan Native
organizations.”50 In 2008, following a formal rulemaking procedure, which included hearings
before an administrative law judge, public comments, and environmental reviews, NOAA issued
regulations under the MMPA to limit aboriginal harvest.51 Under the regulation, NOAA will set
harvest levels every five years based on current population levels as well as 10-year growth
levels. A five-year abundance average of more than 350 is required for any harvest to be
conducted.52
Makah Tribe Whaling Rights
The MMPA and the ESA allow subsistence whaling only by Alaska Natives. Therefore, Indian
tribes outside of Alaska are not authorized under these statutes to engage in subsistence use
hunting. However, the United States has recognized the right of the Makah Tribe’s right to
continue its traditional practice of whaling under the Treaty of Neah Bay in 1855. The Makah, of
Washington State, hunt gray whales from the eastern Pacific stock, which are no longer protected
under the ESA. However, in 2004 the Ninth Circuit held that the treaty right alone was not
enough to authorize whaling.53 According to the court, the Makah treaty rights had to be regulated
under the MMPA to achieve the “conservation necessity” of protecting whales.54 The Ninth
Circuit held that the Makah must still obtain a waiver under the MMPA from NOAA, and that
NOAA must prepare an environmental impact statement under the National Environmental Policy
Act (NEPA).
A waiver provision within the MMPA is used to authorize Makah whaling activities. Section
1371(a)(3)(A) of the MMPA allows NOAA to waive portions of the statute to allow taking
whales, provided it is “compatible” with the conservation principles of the statute’s overall
moratorium, in consideration of the distribution, abundance, and breeding habits of the whales.
This is done using a formal rulemaking procedure, including a NEPA review.55 The quotas set by
the rulemaking match those designated by the Convention Schedule.
The Makah waiver is still pending. According to NOAA, there is scientific uncertainty regarding
the gray whale stock which the Makah would hunt.56 New information suggests members of the
endangered western Pacific gray whale stock migrate into Makah hunting grounds on their way to
50 P.L. 106-31, §3022.
51 73 Fed. Reg. 60976 (October 15, 2008).
52 As of 2008, there were fewer than 350 Cook Inlet belugas. 73 Fed. Reg. at 60978.
53 Anderson v. Evans, 371 F.3d 475 (9th Cir. 2004).
In a different case, five Makah Tribesman were charged with violating the MMPA and the WCA for killing a gray
whale in 2007. On February 19, 2008, a U.S. Magistrate Court Judge found the WCA was too vague, and dismissed the
charges. No written decision is available. United States v. Gonzales, 3:07-cr-05656 (W.D. Wash. 2008). However, the
judge refused to dismiss the MMPA charges against another defendant, holding that whatever the treaty agreements,
killing whales required a permit. United States v. Noah, 2008 WL 916973 (W.D. Wash. April 2, 2008). According to a
news report, three of the defendants pled guilty and received community service; two underwent a bench trial and were
sentenced to imprisonment; and all were fined between $25 and $50 each. Lynda V. Mapes, 2 Makahs to Serve Time
for Illegally Killing Whale, Seattle Times (July 1, 2008).
54 Anderson, 371 F.3d at 497-501.
55 A draft EIS was available May 9, 2008. See 73 Fed. Reg. 26375 (May 9, 2008).
56 Telephonic communication with Steve Stone, NOAA, Protected Resources Division, and the author, August 18,
2011.
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Baja, Mexico, and also that Eastern Pacific whales may halt their Arctic migration along the
Pacific Coast in Makah hunting grounds.57
Subsistence Hunting Catch Limits
The number of whales allowed to be killed under the Convention depends on the catch limit set
by the Schedule. The five-year catch limit (2008-2012) for bowhead whales is 280 takes and 67
strikes (meaning a whale is hit but not harvested).58 The five-year quota for gray whales is no
more than 620 takes, with no strike limits. The United States and Russia share the aboriginal
quotas for these whales, with U.S. native groups taking almost all of the bowhead whales, and the
Russian groups taking almost all of the gray whales. After a five-year catch limit is set by the
Commission, NOAA acts to set a yearly quota,59 based on data from previous years. The notice of
the one-year catch limit is published in the Federal Register. According to the most recent IWC
report on aboriginal whaling, the 2010 Alaska bowhead hunt resulted in 71 strikes from which 45
whales were landed.60 The 2010 total of takes for aboriginal hunting from all four countries
engaged in indigenous whaling (United States, Russia, Denmark (Greenland), and Saint Vincent
and the Grenadines) was 406.61
IWC sets catch limits for a whale species. Aboriginal groups of the United States could violate
the WCA by hunting those species for subsistence.62 It is possible that future quotas could be
severely reduced or eliminated altogether as the number of bowhead whales continues to shrink
and as political issues occupy the IWC membership. In 1977, the IWC banned bowhead whaling.
Notwithstanding U.S. aboriginal dependence on bowhead hunting, the United States abstained
from supporting this amendment to the Schedule, but did not file an objection despite a lawsuit
brought by Alaskan subsistence hunters to force the United States to object.63 In choosing not to
challenge the bowhead ban, the State Department noted that if the United States became the first
nation to challenge the catch limit, the United States’ role as an advocate for the conservation of
whales could be jeopardized.64 The United States was eventually able to negotiate a bowhead
catch limit.65
57 Id.
58 The bowhead quota allows some carry-over for the strikes. While the strike limit is 67 for the stock, the Schedule
allows carrying forward up to 15 whales to the next year’s strike quota, should the total not be met for the year. For
2010, the U.S. reported 26 strikes that were not landed. IWC, Report of the Aboriginal Subsistence Whaling Sub-
Committee, IWC 63, 5.1.1 (July 6, 2011), available at http://iwcoffice.org/_documents/commission/IWC63docs/63-
Rep3.pdf.
59 50 C.F.R. §230.6(a).
60 IWC, Annual Report of the International Whaling Commission 2011, Annex I, available at http://iwcoffice.org/
_documents/meetings/jersey/AnnexI-Catches.pdf. Other 2010 takes were reported as follows: Russia—118 gray
whales, 2 bowhead; Greenland—195 minke, 5 fin, 3 bowhead, and 9 humpback whales; and Saint Vincent and the
Grenadines—3 humpback whales. For data on the 2009 takes, see Appendix B.
61 Id.
62 See United States v. Nusunginya, No. A88-063 CR, 1988 WL 142333 (D. Alaska November 15, 1988).
63 Adams v. Vance, 570 F.2d 950 (D.C. Cir. 1978) (reversing the lower court’s order to enter an objection, holding that
the court could not intrude into the core concerns of the State Department regarding foreign policy absent an
extraordinarily strong justification).
64 Statement of John D. Negroponte, Deputy Assistant Secretary of State for Oceans and Fisheries, as quoted in Hopson
v. Kreps, 462 F. Supp. 1374, 1378-80 (D. Alaska 1979).
65 See M.S. Wilson and E.H. Buck, Changes in Eskimo Whaling Methods, Carnivore, Vol. 2, No. 1, pp. 35-42 (1979).
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The WCA authorizes licenses for aboriginal hunting via a licensing procedure provided under the
WCA regulations.66 Under this procedure, certain qualified individuals may obtain a license from
NOAA to conduct whaling in compliance with the Convention. The same regulations impose
reporting requirements.
Aboriginal Hunting Tax Deduction
The federal government supports aboriginal whaling through tax policy. The tax code allows
aboriginal hunters to claim a charitable deduction of up to $10,000 per year for whale hunting
expenses.67 The deduction applies only to sanctioned bowhead whale hunting, and allows
deduction of reasonable and necessary expenses such as acquisition and maintenance of whaling
boats, weapons, and gear; food for the crew; and storage and distribution of the catch. The only
legislation proposed in the 113th Congress was an amendment to end that tax deduction (S.Amdt.
414 to S.Con.Res. 8). It was withdrawn.
Table 1. Member Nations and Date of Entering Convention
Date of
Date of
Nationa
Entry
Nation
Entry
Antigua & Barbuda
07/21/82
Kiribati
12/28/04
Argentina
05/18/60
Republic of Korea
12/29/78
Australia
11/10/48
Laos
05/22/07
Austria
05/20/94
Lithuania
11/25/08
Belgium
07/15/04
Luxembourg
06/10/05
Belize
06/17/03
Mali
08/17/04
Benin
04/26/02
Republic of the Marshal Islands
06/01/06
Brazil
01/04/74
Mauritania
12/23/03
Bulgaria 08/10/09
Mexico
06/30/49
Cambodia
06/01/06
Monaco
03/15/82
Cameroon
06/14/05
Mongolia
05/16/02
Chile
07/06/79
Morocco
02/12/01
People’s Republic of China
09/24/80
Nauru
06/15/05
Colombia 03/22/11
Netherlands
06/14/77
Republic of the Congo
05/29/08
New Zealand
06/15/76
Costa Rica
07/24/81
Nicaragua
06/05/03
Côte d'Ivoire
07/08/04
Norway
03/03/48
Croatia
01/10/07
Oman
07/15/80
Cyprus
02/26/07
Republic of Palau
05/08/02
Czech Republic
01/26/05
Panama
06/12/01
66 50 C.F.R. Part 230.
67 26 U.S.C. §170(n).
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Date of
Date of
Nationa
Entry
Nation
Entry
Denmark
05/23/50
Peru
06/18/79
Dominica
06/18/92
Poland
04/17/09
Dominican Republic
07/30/09
Portugal
05/14/02
Ecuador
05/10/07
Romania
04/09/08
Eritrea
10/10/07
Russian Federation
11/10/48
Estonia
01/07/09
St. Kitts and Nevis
06/24/92
Finland
02/23/83
St. Lucia
06/29/81
France
12/03/48
Saint Vincent & The Grenadines
07/22/81
Gabon 05/08/02
San
Marino
04/16/02
The Gambia
05/17/05
Senegal
07/15/82
Germany
07/02/82
Slovak Republic
03/22/05
Ghana 07/17/09
Slovenia
09/20/06
Greece
w/drew
Solomon Islands
05/10/93
6/30/13
Grenada
04/07/93
South Africa
11/10/48
Guatemala
05/16/06
Spain
07/06/79
Guinea-Bissau
05/29/07
Suriname
07/15/04
Republic of Guinea
06/21/00
Sweden
06/15/79
Hungary
05/01/04
Switzerland
05/29/80
Icelandb 10/10/02
Tanzania
06/23/08
India
03/09/81
Togo
06/15/05
Ireland
01/02/85
Tuvalu
06/30/04
Israel
06/07/06
United Kingdom
11/10/48
Italy
02/06/98
United States of America
11/10/48
Japan
04/21/51
Uruguay
09/27/07
Kenya
12/02/81
Source: IWC website: http://www.iwcoffice.org/commission/members.htm (as of 12/03/09).
a. Canada was an original signatory but withdrew from the Convention in 1982, and now acts as an observer.
b. Iceland withdrew from the Convention in 1992 in opposition to the whaling moratorium, and rejoined in
2002 with an objection to the moratorium. Some countries do not recognize Iceland’s reservation, including
the United States.
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Table 2. Cetaceans Listed Under the Endangered Species Act or Categorized as
Depleted Under the Marine Mammal Protection Act
Common Name of Cetacean / stock
(if applicable)
ESA Status
MMPA Status
beluga whale / Cook Inlet
endangered
depleted
blue whale
endangered
depleted
bottlenose dolphin / Western N. Atlantic coastal
not listed
depleted
bowhead whale
endangered
depleted
Chinese River dolphin
endangered
depleted
fin whale
endangered
depleted
gray whale / Western N. Pacific
endangered
depleted
gray whale / Eastern N. Pacific
delisted
Gulf of California harbor porpoise
endangered
depleted
humpback whale
endangered
depleted
Indus River dolphin
endangered
depleted
killer whale
endangered
depleted
North Atlantic right whale
endangered
depleted
North Pacific right whale
endangered
depleted
sei whale
endangered
depleted
spinner dolphin / Eastern
not listed
depleted
Southern right whale
endangered
depleted
sperm whale
endangered
depleted
Source: NOAA website: http://www.nmfs.noaa.gov/pr/species/mammals/cetaceans/.
Note: Bryde’s whales are not protected under the ESA nor categorized as depleted under the MMPA.
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Appendix A. Catches by IWC Member Nations in
the 2010 and 2010/2011 Seasons
Source: Congressional Research Service, compiled from data at IWC Chair’s Report 2011, Annex I (IWC 63),
available at http://iwc.int/catches.
Notes: These data include whales struck and lost.
a. Fin—5; minke—195; bowhead—3; humpback—9;
b. Bowhead—2; gray—118;
c. Bowhead—71;
d. Humpback—3;
e. Fin—148; minke—60;
f. Minke—468;
g. Fin—2; sei—100; Bryde’s—50; minke—290; sperm—3;
h. Bryde’s – 1; minke – 11.
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Appendix B. Catches by IWC Member Nations in
the 2009 and 2009/2010 Seasons
Source: Congressional Research Service, compiled from data at IWC Chair’s Report 2010, Annex K (IWC 62),
available at http://iwcoffice.org/_documents/meetings/agadir/AnnexK.pdf.
Note: Data include whales struck and lost.
a. Fin—10; minke—168; bowhead—3;
b. Gray—116;
c. Bowhead—38;
d. Humpback—1;
e. Fin—125; minke 81;
f. Minke—484;
g. Sei—101; Bryde’s—50; minke—672; sperm—1;
h. Minke—16.
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Author Contact Information
Kristina Alexander
Legislative Attorney
kalexander@crs.loc.gov, 7-8597
Acknowledgments
The author would like to thank Eugene H. Buck, former CRS Specialist in Natural Resources Policy, for
sharing his expertise.
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