Of Orcas and Men

  Lolita appears to have an affectionate relationship with her trainers, but, until recently, they have ridden her for years. There was a ride on her side, gripping the right pectoral, around the pool; a ride on her chest, also around the pool; a straight-up breach with the trainer athletically balancing atop her rostrum, high into the air; a similar straight-up-and-down breach with the trainer draped down the whale’s chin, gripping the rostrum; and then a standing surfer-style ride around the pool on her back, completed by a brief ride in front of her pectoral onto the pool’s slide-out for the show’s finale. None of these is a natural behavior for an orca (unlike her breaches, which are commonly seen in Southern Residents like Lolita). Lolita would cap off the show with a giant breach, straight out of the water, with her trainer standing astride her two pectoral fins. However, in the summer of 2014, OSHA, following up on its ruling for SeaWorld, fined the Seaquarium more than $7,000 for permitting the “water work” with Lolita. The Seaquarium says its trainers continue to have physical contact with Lolita, but now that won’t occur during performances.

  Recent changes notwithstanding, Lolita’s routine has remained largely the same for more than forty years. Her original veterinarian, the late Jesse White, described her best: “So courageous and so gentle.”

  At Miami Seaquarium, they’re self-assured that they are doing the right thing for Lolita. Certainly, they deserve credit for having maintained her health well for all these years, although the whale herself also deserves much of the credit for that, too. Nearly everyone who comes in contact with her comes away impressed with her immense internal strength and patience. I was deeply moved by the mutual affection she clearly shared with her trainers, but everyone at the park was reluctant to talk to a reporter from Seattle, perhaps mindful of how their work is depicted in Blackfish.

  In 2010, Robert Rose, the facility’s curator, gave a terse response when an audience member asked him about whether Lolita was happy in that tiny tank as a McClatchy reporter listened: “This is her home. It’s the only home she’s known for 40 years.” Rose sees a whale’s home as a place, but off Kanaka Bay in the summer of 2013, L pod whales, Lolita’s pod, including her mother, spent a number of days chatting and milling and munching on Chinook, more or less in the total area of the bay, and they always stayed together. Because for orcas, home isn’t just a place. These creatures’ home is each other. Wherever their mothers and brothers and aunts and uncles go, usually in search of salmon, that is home. It shifts and drifts with the tide and the fish, but they always have a home.

  It’s Lolita’s real home, too. After forty years and counting, there’s still no place like it.

  CHAPTER Nine

  Orcinus Ethics

  THREE KWAKWAKA ’WAKW BOYS WERE OUT IN THEIR CANOES. THEY were of that age when the idea of manhood dangled before them tantalizingly. Not far from the shore near their village, they were out practicing their skills at shooting arrows with a bow and throwing a spear. While they were playing, a pod of killer whales, Mi’Max’inuxw, came past, frolicking, splashing. The boys watched in awe for a while, and then one of them started thinking about his manhood.

  “I bet I can shoot one of them with my arrow!” he declared to his two friends.

  “Me, too!” his friends shouted.

  They got out their bows and talked among themselves, deciding to take aim at the orcas’ dorsal fins. The other boys missed, but the first boy’s arrow found its mark, striking an orca and piercing its dorsal fin. The orca gave a loud chuff! and disappeared underwater. Now the whole family of killer whales was angry and charged at the three boys. Suddenly stricken with fear, they paddled madly in to shore, arriving one after the other. The boy whose arrow had hit the orca was last, and just as his canoe came to shore, so did a huge killer whale in hot pursuit.

  A rising orca blows bubbles as it surfaces.

  Magically, the whale’s dorsal fin transformed into a large man, and he was angry. He reached out and grabbed the boy as he clambered out of his canoe, seizing him by the heel at his Achilles tendon and picking him up. He dangled him that way, pinching the tendon.

  “I am Max’inuxw! You, boy, as long as you live, will never be able to walk properly, and you will always suffer in pain from the muscles in your heel being pulled out. This is what you did to us. I am Max’inuxw.”

  With that, he let the boy back down, went back to the water and into his canoe, and transformed back to a killer whale. The three boys grew up to lead families that honored the Max’inuxw, engraving his image on their doorways and totems and honoring the whales at feasts and potlatches with songs and dances. Most of all, they never allowed anyone to bother or harass the killer whales again. The boy whose arrow struck the whale’s fin always walked with a limp after that. Even his descendants paid a price.

  “The killer whales are one of the most highly respected creatures in Kwakwaka’wakw culture,” says storyteller Andrea Cranmer of Alert Bay, who told this story for a CBC radio audience. “They can take sickness away, guide you to safety, and are regarded as being the same spirit as man. But because of that arrow, that boy’s descendants will always have pain in one of their heels, and they will always walk with a limp.”

  • • •

  Can an animal be a person?

  That is the essence of the challenge the killer whales pose to humans, especially those humans who hold them captive. But it is also a larger challenge to all of us, especially if we endeavor to take our role as stewards of the world in which we live seriously. It is a strange and alien concept in a world dominated by Western thought, in which humans have historically been regarded as exceptional beings apart from nature and in which all nonhuman occupants of the world are considered animals, at best property and at worst vermin, the extermination of which is required for the sake of human well-beings.

  “Right now, there is no one besides a human who is a person,” says dolphin scientist and ethicist Lori Marino. “They’re all property, no matter how complex they are, no matter how much we love them. They have no inherent rights of their own.”

  Yet the more we learn about dolphins in general, and killer whales in particular, the more that our assumption of innate superiority looks like a presumption. Orcas, with their big brains, complex social structures, mysterious communications, and mind-boggling sixth sense, by their very existence, challenge the longstanding belief that human beings are the planet’s only intelligent occupants. Social life for killer whales, as we have seen, is deeper and more omnipresent than it is for humans; their identities are defined by their families and tribal connections; and their empathy is powerful enough to extend to other species. If orcas have established empathy as a distinctive evolutionary advantage, it might behoove a human race awash in war and psychopathy to pay attention.

  We’ve also learned that these creatures have rich emotional lives. Their brains are extremely developed in the areas associated with emotional learning, and their tight social arrangement, in which family bonds remain for life, is complex and sophisticated. They also have a demonstrated capacity for empathy. Nor, for that matter, is this only true of dolphins and cetaceans generally. The more we learn about a number of creatures that have always been deemed non-persons by dint of their nonhuman status, the more their emotional lives are being revealed: chimpanzees and all the great apes, elephants, even cats and dogs and pigs and cattle, all have more developed emotional centers than we had previously supposed.

  Gregory Berns, an Emory University neuroeconomist, has concluded that dogs, for example, provide plenty of food for human thought even beyond what we all thought we knew. “The ability to experience positive emotions, like love and attachment, would mean that dogs have a level of sentience comparable to that of a human child,” writes Berns, “and this ability suggests a rethinking of how we treat dogs.” Berns, like an increasing number of animal ethicists, contends that this rethinking should take the shape of “a sort of limited personhood for animals that show neurobiological evidence of po
sitive emotions.” In other words, the more closely we study animals, the more we find much of what we think of as constituting personhood. It is not exclusive to humans.

  This is, of course, sheer craziness to many people. “The whole concept of non-human personhood is fraught, and people respond differently to it,” says Lori Marino. “I’m not even sure if personhood is the right word to say, but it’s the word we have right now.” The high intelligence of certain species—particularly orcas, dolphins, and chimpanzees—has been the driver of the ethicists’ own evolution in their views. Most of all, it has forced us to recognize that our definition of intelligence is self-servingly geared to place us on top.

  “We ignore the inconvenient fact that we choose to define and measure intelligence in terms of our greatest strengths,” observes marine biologist and ethicist Jeff Schweitzer. “We arbitrarily exclude from the definition of intelligence higher brain functions in other animals. Enter the compelling interest in communicating with dolphins. We would be low on the list of smart animals if we included in our basic definition of intelligence the ability to use self-generated sonar to explore the environment and to communicate.”

  Because personhood has always been associated with intelligence, a less anthropocentric definition of intelligence yields a slightly reconfigured understanding of personhood as well. Marino’s dolphin-science colleague, Thomas White, has proposed a definition of personhood that includes being alive, aware, being capable of feeling positive and negative sensation as well as emotions, having a sense of self, having control over one’s own behavior, and having the ability to recognize other people and respond appropriately. Most of all,

  A person has a variety of sophisticated cognitive abilities. It is capable of analytical, conceptual thought. A person can learn, retain, and recall information. It can solve complex problems with analytical thought. And a person can communicate in a way that suggests thought.

  As White explains, dolphins fit this definition more than adequately, as demonstrated in a variety of experiments. Their creativity and inventiveness, for example, were brilliantly exhibited by a female dolphin named Malia at a facility in Hawaii. Malia was rewarded for exhibiting new behaviors and developed an expansive repertoire of stunts beyond anything her trainers had thought possible.

  The dolphins’ ability to control their behavior and to recognize other individuals is embodied in the interactions with humans observed by dolphin scientist Denise Herzing in southern Florida; those dolphins, in fact, seem to eagerly seek out humans, even though they are not being fed or stroked or otherwise interfered with, and engage them in a variety of play behaviors.

  Even more striking is the social dimension of dolphins’ and orcas’ faculties of perception, especially their echolocation. Just as when that calf I encountered off Kaikash Creek seemed to be listening in on the echolocation bullets from its mother that were striking my kayak, scientists have found that dolphins, too, “eavesdrop” on the echolocation sounds made by their fellow pod members. Brain specialist Harry Jerison observes:

  Intercepted echolocation data could generate objects that are experienced in more nearly the same way by different individuals than ever occurs in communal human experiences when we are passive observers of the same external environment. Since the data are in the auditory domain, the “objects” they generate would be as real as human seen-objects than heard “objects,” that are so difficult for us to imagine. They could be vivid natural objects in a dolphin’s world.

  The “social cognition” that arises from this kind of richly shared experience of the world would even lead to a different sense of self than humans experience. Jerison argues: “The communal experience might actually change the boundaries of the self to include several individuals.” This clearly indicates that dolphins—and particularly killer whales, in whom we have observed the most highly developed acoustic skills, as well as the most elaborate social and communicative structures in the delphinid family—have powerful emotional and empathic connections to each other that are integral to their own personal identities as beings in the world. Their togetherness defines them as persons.

  White’s observations about the personhood of dolphins applies as well, naturally, to orcas, perhaps at an even higher level—meaning that, logically speaking, they qualify for personhood, as do dolphins, and indeed, the same logic thereby opens the door for consideration of the same status for a number of other species of animals.

  When we define intelligence in a way that is appropriate to a species, its capabilities, and its environment, that likewise applies to our definitions of personhood. Our traditional definition of personhood is also deeply anthropocentric, based on an experience of the self that encourages highly individualized behaviors. Cetaceans, on the other hand, experience self in a completely different way, one encouraged by an aquatic environment that produces highly social and empathic beings. However, when we start redefining personhood in a less anthropocentric way, there are deep ramifications. That road inevitably leads to the realm of law and legal rights, nominally the province of every person.

  “So the rights that proceed from intelligence are species appropriate,” says Marino. “You know, dolphin rights are not the same as human rights, and dolphins don’t need to have the same rights as humans. So you look at what you can deduce to be what the individual animal needs for a healthy, productive life. And whatever those things are, that is what their needs, their rights are.”

  The implications proceed beyond just captive cetaceans, however. Many primates are held in captivity in zoos and research facilities around the world. Dogs and cats are considered the property of their owners, to be disposed of as they see fit. So are agricultural animals such as pigs and cows. When we talk about giving them rights, what does that portend for the people who breed and raise the former, and slaughter and eat the latter?

  The ethicists say that the rights are naturally limited to what the animals’ needs are. Recognizing such animals as “nonhuman persons” doesn’t necessarily mean people have to stop eating them or using products from them. It does mean, however, that people would be required to give the animals in their care decent lives in which their daily needs are met. If these ethics were to gain cultural currency, facilities such as the gigantic “pig cities” where animals are raised and die in tiny pens, locked up with thousands of their fellow hogs, would no longer exist.

  “I mean, clearly, no one is saying that pigs should have the right to go to college,” says Marino. “But they do have the right to be able to move around at will, and be able to have their babies in a way that they like, and those kinds of things. It runs counter to a lot of traditional views, especially the view of animals as property,” she acknowledges.

  But the science underlying our understanding of them impels a shift in ethics. That shift, she says, is embodied in the growing scientific consensus that captivity is not an appropriate state of being for killer whales. “The bottom line really comes down to the scientific data, which will tell you if these animals can thrive in captivity,” Marino says. “And they don’t. People ask my opinion all the time, and I say my opinion is irrelevant. Here are the papers that led to my accepting the conclusion that they cannot thrive in captivity. And I always try to impress that upon people.

  “They are big and strong and so impressive. But stop and think about how little you really know about them from captivity. What’s really impressive about orcas is all the stuff they do in their natural environment—their social life, the way they hunt, the way they travel, the way they partition resources, their cultures—all that stuff, you get no sense of that in captivity. You just get basically the very superficial kind of big giant strong animal splashing in the water.”

  Marino and a number of her colleagues have joined forces to create the Nonhuman Rights Project (NhRP), an attempt to bring their ethical considerations into the legal realm, actually giving animals rights of their own for the first time. Their first campaign involves giving fo
ur captive chimpanzees held at various locales in New York State their relative freedom and moving them to a sanctuary where they could live out their days in a semi-wild environment.

  “No one has ever demanded a legal right for a nonhuman animal, until now,” said Steven M. Wise, the founder and president of the project, when the lawsuit was announced. “When we go to court on behalf of the first chimpanzee plaintiffs, we’ll be asking judges to recognize, for the first time, that these cognitively complex, autonomous beings have the basic legal right to not be imprisoned.”

  Initially, the lower courts rejected the plaintiffs’ arguments, as expected. The attorneys at the project are more hopeful that they can gain traction in the appeals courts. “These were the outcomes we expected,” said Wise, after the December 2013 initial ruling in the lawsuit. “All nonhuman animals have been legal things for centuries. That is not going to change easily…. The struggle to attain the personhood of such an extraordinarily cognitively complex nonhuman animal as a chimpanzee has barely begun.”

  Says Marino: “The NhRP is trying to take the first step, which is just to establish common-law legal personhood. It’s not even legislative or constitutional. It’s just trying to get one judge to say that one chimpanzee is a legal person with a right to bodily liberty. And that’s going to be a tall order, but I think eventually we’ll get there.”

  Something similar had been attempted the year before, but instead with orcas. A variety of animal activists, led by People for the Ethical Treatment of Animals, went to court to order SeaWorld to release its killer whales on the grounds that they were being held in “slavery,” and thus were in violation of the Constitution. Among the plaintiffs listed were Tilikum, as well as Corky, the last surviving Northern Resident captive orca. However, it was swiftly dismissed by the federal courts, with prejudice.