Pretrial hearing set Tuesday in Makah Tribal Court for accused whalers
By Jim Casey, Peninsula Daily News
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Meanwhile, a lawyer for one of the men has challenged his client's federal indictment, claiming it violates his freedom of religion.
Attorney Jack Fiander of Yakima also has moved to dismiss the charges because, he claims, the whale was hunted in Makah tribal waters and thus outside the jurisdiction of U.S. District Court.
The federal trial is set to start April 8 in Tacoma.
There are no such cultural or jurisdictional questions for Tuesday's hearing in Neah Bay.
The Makah Tribal Council on the day after the whale died promised to prosecute Wayne Johnson, Andy Noel, Frankie Gonzales, Theron Parker and William Secor Sr., all Makah of Neah Bay.
Too long until trial?
Among issues for the hearing is scheduling their trial for breaking the Makah Gray Whale Management Plan, breaking state and federal laws, and recklessly endangering others by firing a high-powered rifle over water.
Fiander has challenged, however, the timeliness of a trial in tribal court.
The men were charged Nov. 23 and arraigned Dec. 11, so any trial date will be far beyond the tribe's 30-day speedy trial rule.
Fiander, who represents Johnson and Noel in tribal court, has moved to dismiss the charges on that basis.
If convicted on all counts in tribal court, the men could be sentenced to a year in jail and fined $5,000.
In federal court, each man is charged with conspiring to violate and with violating the Marine Mammal Protection Act.
Conviction on any count carries a possible $100,000 fine and one-year prison term.
'Inseparable from religion'
In federal court, where he represents only Noel, Fiander last week alleged the government's requiring the Makah to obtain a permit to hunt whales violated the U.S. Religious Freedom Restoration Act and the First Amendment to the U.S. Constitution.
"It is unquestionable that the exercise of whaling by Makah tribal members was, and is, inseparable from the exercise of their religion," Fiander wrote in a 15-page memorandum to the court.
In support of his second motion, Fiander wrote that the whale initially was hunted close enough to shore as to be in tribal waters as delineated by the extreme low tide mark.
"Jurisdiction over members of the Makah tribe for fish and game violations within the Makah reservation and its adjacent waters is exclusively vested in the Makah tribe, and the indictment should be dismissed," he wrote.
Cultural claim denied
U.S. Magistrate J. Kelley Arnold in Tacoma must rule on the motions.
Arnold on Feb. 19 ruled against Fiander's first motion based on cultural issues.
Fiander argued that the Makah are closely linked to natives of southern Alaska, who are exempt from the Marine Mammal Protection Act.
Arnold, however, cited Anderson vs. Evans, the case which in 2004 the Ninth U.S. Circuit Court of Appeals required the Makah to seek a permit from the act.
All the tribal and federal charges stem from a botched hunt in which the whale was harpooned at least four times, shot at least 16 times and allowed to sink in the Strait.
The killing's largest impact may be on the tribe's pending request for the waiver, a process that started in the fall of 2005 but that federal officials say has been delayed by the events of Sept. 8.
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Reporter Jim Casey can be reached at 360-417-3538 or at jim.casey@peninsuladailynews.com.
Last modified: March 14. 2008 9:00PM