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.

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“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 long-standing 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.

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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 positive 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.”

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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.

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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 thought 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 connection to each other that are integral to their own personal identities as beings in the world. Their togetherness defines them as persons.

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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.”

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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 long 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.

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“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 in to the legal realm, actually giving animals rights of their own for the first time. Their first campaign involves giving four 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.”

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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 ground 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.

“The slavery lawsuit didn’t succeed for a simple reason, and that was that they wanted the judge to interpret the Constitution in a way that even if he wanted to, he couldn’t, which was to see orcas as human salves,” says Lori Marino.” Clearly the 13th Amendment did not provide for orcas. You can go there, but the first thing you have to do is, orcas have to be persons—nonhuman persons.”

The backlash against orca captivity created by Blackfish, however, has revived a national discussion of the topic. Increasingly, the public is awakening to the reality that the scientific ethicists have been raising for many years, namely that the more we learn about killer whales, the more we realize that their continued captivity, especially as it is practiced today, is the wrong thing.

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. . .

Among the many things we have learned about killer whales in the forty years since we began capturing them and putting them in concrete tanks, probably the most striking is their extremely social natures. The lifelong bonds between mothers and their calves, as well as their fellow pod members, are deep and profound in ways we can only glimpse like fleeting shadows. There is almost no respect for those bonds for orcas in captivity, however, especially when it comes to their breeding program. Young calves are routinely separated from their mothers shortly after birth, in large part because so many of the females in captivity were either captured quite young or were themselves born in captivity and never learned proper nursing skills from their mothers, as they would have in the wild, and so most newborns have to be hand-fed by humans if their owners wish to see them reach adulthood.

Neither is there any respect for the profound cultural differences among orcas. At marine parks, orcas from ecotypes around the globe—some of them fish-eating resident whales, some of them mammal-eaters—are thrown in together, usually with no consideration fro their ecotype of origin, let alone their home pod.

Perhaps most egregious, though, is the stultifying reality of their confinement. Not only are they prevented from swimming the vast distances to which they are accustomed, their pools are invariably featureless concrete thanks, the likes of which, for creatures used to perceiving the world through sound, is essentially the same as imprisoning humans in small white featureless rooms.

All of these stresses add up to shortened lifespans, unhealthy animals, and most of all unhappy animals, capable of acts of aggression that are unseen among wild killer whales, especially toward their human handlers. Tilikum is far from the only psychologically unstable orca among the ranks of the captives, nor the only one who has acted aggressively against trainers, a reality that Blackfish illustrated vividly. The only logical and ethical conclusion is that a new program, creating a new business model, should be undertaken at marine parks: retirement, rehabilitation, and potentially a return to the wild for some whales. It would include captive-born as well as wild-born killer whales, and it would mean an end to all further captive breeding programs.

Naomi Rose, herself a onetime Northwest orca researcher who helped oversee Keiko’s final years while with the Humane Society and is now a lead scientist at the Animal Welfare Institute, has proposed a new paradigm for the SeaWorlds of the world: to relinquish their continued use of these animals for entertainment and to instead embrace education and conservation as the centerpieces of their business. “These facilities can work with experts around the world to creature sanctuaries where captive orcas can be rehabilitated and retired,” explains Rose. “These sanctuaries would be sea pens or netted-off bays or coves, in temperate to cold-water natural habitat. They would offer the animals respite from performing and the constant exposure to a parade of strangers (an entirely unnatural situation for a species whose social grouping are based on family ties and stability; “strangers” essentially do not exist in orca society). Incompatible animals would not be forced to cohabit the same enclosures and family groups would be preserved.”

There are many wild-animal sanctuaries in operation around the globe for a variety of species, operating on a nonprofit business model, and Rose argues that such an operation would fit in well even with a business such as SeaWorld, which is driven by profits and ticket sales, so long as it was willing to move to the locales where the rehabilitation was taking place. “Wildlife sanctuaries are sometimes open to the public, although public interaction with the animals is usually minimized,” says Rose. “A visitor’s center can offer education, real-time remote viewing of the animals, a gift shop, and in the case of whales and dolphins can even be a base for responsible whale watching if the sanctuary is a suitable location for that activity.”

SeaWorld, of course, has so far ignored such importuning as ridiculous and idealistic, while defending its continued practices of holding the animals in captivity. Mostly it does so on dubious grounds. It claims its programs are educational and inspire children, but in reality children are fed a heavy dose of misinformation at these facilities. It claims it gives the animals better and longer lives in captivity, which while true for some species, is decidedly a falsehood when it comes to killer whales; and it claims it contributes to conservation and rescue efforts, but it has done not a single meaningful thing to help restore the Southern Resident population in the Salish Sea on which its industry was founded.

When SeaWorld guides talk about those wild populations at all, it is to offer a stark contrast with the “safe” and sterile environment in which the orcas they possess now live, as though it were obviously preferable to be fed dead herring all day rather than chasing down salmon with one’s pod in native waters. They make the oceans out to be scary places rather than the natural and free environments in which these creatures were always meant to live.

There is a powerful element of truth in their observations. Wild killer whales indeed face all kinds of challenges to their sheer survival out there in the ocean. However, that does not mean captivity is a better place for them than the wild. It only means that the people who fear for their well-being in captivity, and wish to see it ended, also need to be engaged in helping killer whales to thrive in the wild.

. . .

Killer whales around the world face a variety of threats. Crozet Island orcas are still being killed by fishermen from whose lines they mischievously steal a whole day’s catch. In Russian waters, orcas are being captured and hauled off to inland aquariums, including eight who were captured for display during the 2014 Winter Olympics. Alaskan killer whales are still recovering from the effects of the Exxon Valdez oil spill. A shrinking fishery in the North Atlantic continues to stress the populations there.

However, the only known endangered population is the Southern Residents; they have not yet recovered from the effects of losing a generation’s worth of young orcas during the capture period of the ’60s and ’70s. The declining salmon runs, the buildup of toxins and pollutants, the increase in vessels and their accompanying noise have all played a role in increasing their vulnerability and keeping their numbers low. Looming future threats, such as increasing the possibility of a toxic oil spill in their home waters, make their future very cloudy indeed.

Brad Hanson, the NMFS whale scientist, is concerned about the precarious position in which the Southern Residents now find themselves, some of it an outcome of their evolution. “To me, it’s fascinating—this adaptation where we see these small, social odontocete populations,” Hanson says. “You see it with pseudorca, with killer whales, with belugas, with Baird’s beaked whales. When you think about the populations of other animals, which number in the hundred of thousands or millions or whatever—to me, what it shows is the fragility of these populations. Because there aren’t very many of them. And yet they’ve come to exist in these very small groups and enclaves. The point being, the fact that they do exist in very specialized environments and there are a small number of animals, it’s a very fragile situation. And I think the public has a really hard time trying to comprehend all the insults to the environment that we inflict, and in doing so inflict them on these animals and make them even more fragile.”

Paul Spong sees the same precarious sate: “It’s very unfortunate for the Southern Residents that they are in a place that we have chosen to occupy so heavily,” he says. However, he fears for the future of both the Southern and Northern Resident whales. “I am concerned for what the future holds for all these orcas, and for all kinds of marine life. I just know that we impact them in all kinds of ways. A lot of it is inadvertent, and a lot of it is quite deliberate.

“Just looking at the issue of pollution, and looking at what it would take to change things around to the point where there would be a significant difference for the orcas, and for other marine mammals. It’s massive, because there are so many entry points for toxins into the ocean system.”

As Spong explains, these are all issues in which every person who lives in the Northwest can play a role. “You need to start at the personal level,” he says. “People in their own ordinary lives can pretty easily make decisions about things that are appropriate and not appropriate.”

Hanson aggress, but also sees the complexity: “It’s hard for people to understand how to make a difference. They want to help the animals, but they really don’t know how,” he says. “It’s hard to tell people when they say, ‘What do we do?’ And it’s a hard question, because there’s so much stuff going on at so many different levels.”

For the Southern Residents, those issues run from prey availability to toxins to vessel noise. Do you use yard fertilizers that run off into local waters and harm salmon? Do you go out to see whales in a boat that ignores the self-enforced 100-yard regulatory distance from the orcas? Or do you make conscious choices to do otherwise?

“How does your daily behavior connect to that?” wonders Hanson. “We all have an impact, and it’s hard to be conscious of what those impacts are. You go home and you fire up the furnace or you flush the toilet, and it’s water from a river system that salmon once depended on. You know, we live in a heavily altered system that sort of marginally supports salmon stocks. But does it make sense to rip out whatever to do stuff to make them strong again? We have to figure out the tradeoffs.”

Some of these tradeoffs involve difficult land-use issues. In the Skagit River valley, where a restored river system would probably yield one of the largest bounties of salmon for Puget Sound orcas to devour, in the longtime feuding between farmers, who now occupy much of the river’s delta, and tribal and conservationist interests trying to restore salmon runs, a stalemate has ensured that few improvements are in the offing.

That, if anything, reflects the greatest difference between men and orcas, and the trait we would be wisest to learn from them: cooperation. Killer whales are deeply wired to cooperate with one another, to assist each other, to join forces in order to achieve their goals. Our lack of the same trait, ironically, is what in the end most engages them, and should we ever heed their example and learn that trait, conversely, it could be their salvation.

“There are a lot of ways the killer whales are an indicator species,” says San Juan Island naturalist Monika Wieland. “They can tell us a lot about what’s going on out there. I mean, the salmon are so crucial for the entire ecosystem here, and the whales are sort of a visual indicator for us of what might be going on out there. You just hope that people are listening to that message—if the whales are not here, especially.” She knows that there are reasons, including the whales’ disappearing act in the summer of 2013, for pessimism, too. “There’s been a lot of doom and gloom,” she says. “I know of a lot of naturalists who say things like, ‘I don’t want to just stay here and watch them die.’ People are almost ready to give up on them.” She smiles. “I’m not giving up on these guys just yet. Just like the salmon on the Elwha, we know that nature is incredibly resilient. I think if we give them any sort of opportunity, they will take advantage of it.”

Excerpted from "Of Orcas and Men: What Killer Whales Can Teach Us" © 2015 David Neiwert. Published by the Overlook Press, www.overlookpress.com. All rights reserved.