Tribal trial ties whalers to federal sentence terms
By Jim Casey, Peninsula Daily News
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All five must abide for a year by conditions that will be set June 30 in U.S. District Court in Tacoma, where they either have pleaded guilty or have been found guilty of federal misdemeanors.
If they do so, tribal charges that include animal cruelty and discharging a firearm will be dropped, said Wayne Johnson, one of the five defendants.
The attempt to try the men by jury collapsed when only 13 of 200 potential jurors had not been dismissed for bias or kinship with one of the defendants — and attorneys had yet to exercise any challenges, Johnson said.
Chief Tribal Judge Stanley Myers, who initially had resisted any outcome short of a trial, granted the deferral and charged each man $20 in court costs.
"It could have been better, but it could have been worse," Johnson said.
Johnson and the others — Andy Noel, Frankie Gonzales, Theron Parker and William Secor Sr. — killed the whale in the Strait of Juan de Fuca near Neah Bay.
The whale, harpooned four times and shot at least 16 times, died more than nine hours later before the Coast Guard received permission to euthanize it.
It sank and did not resurface.
Promise to prosecute
The Makah Tribal Council initially promised to prosecute the five, adding in a prepared statement:
"We are a law-abiding people, and we will not tolerate lawless conduct by any of our members.
"We hope the public does not permit the actions of five irresponsible persons . . . to harm the image of the entire Makah tribe."
Plans for a tribal trial slackened after the five were indicted on federal charges of conspiring to violate and violating the Marine Mammal Protection Act.
Early attempts to find a disinterested judge were unsuccessful. Even after the tribe hired Myers, the trial was repeatedly delayed, and the tribal prosecutor said she was unable to locate witnesses.
Johnson, who with Noel was found guilty in a quick federal bench trial April 7, said he thought a tribal trial was unjust.
"It's really not fair getting tried both places for the same crime," he said.
Anti-whaler outraged
He and Noel face sentences of up to a year in prison, a $100,000 fine and a year's parole on each of the two federal counts.
Gonzales, Parker and Secor all pleaded guilty March 27 to a single count each of violating the marine mammal act.
As part of their plea agreement, they received a recommendation from Assistant U.S. Attorney James Oesterle that they serve no jail time, although they face fines and five years' probation.
Anti-whaling activist Chuck Owens, founder of Peninsula Citizens for the Protection of Whales, greeted the tribal court's deferred prosecution with outrage.
"Where is the justice that the tribal council promised to the citizens of Clallam County and the state of Washington for the horrendous attack on a gray whale?
"This ruling should cause the National Marine Fisheries Service to reassess the tribe's credibility to co-manage the killings of whales.
"The felony charges of animal cruelty and violations of public safety laws must now be prosecuted by the state of Washington."
Johnson has said the hunters acted out of frustration with the slow progress toward a permit to resume legal whaling.
Public meeting May 27
That process moved forward Friday when the National Marine Fisheries Service, enforcement agency for the marine mammal act, released a draft environmental impact statement on the tribe's request.
The statement outlines six alternatives — ranging from no whaling to unrestricted hunting — but gives preference to none of them.
Tribal members will receive a fisheries service briefing May 27, Johnson said, and the agency will host a public meeting on the statement from 6:30 p.m. to 9:30 p.m. May 28 in the Vern Burton Center, 208 E. Fourth St., Port Angeles.
Other meetings are set for 6:30 p.m. to 9:30 p.m. June 2 in the Lake Union Park Armory, 860 N. Terry Ave. N., Seattle, and for 10 a.m. to 1 p.m. June 5 at the National Oceanic and Atmospheric Administration Auditorium, 1301 East-West Highway, Silver Spring, Md.
At issue is the tribe's right — promised in the 1855 Treaty of Neah Bay — to hunt and kill marine mammals.
The Makah say the treaty should be supreme, but a federal court has held that the tribe is subject to the marine mammal act.
Saturday will be the ninth anniversary of the last legal killing of a whale by the Makah, a 30-ton female harpooned and shot off Cape Flattery on May 17, 1999.
Parker and Noel harpooned that whale, and Johnson shot it.
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Reporter Jim Casey can be reached at 360-417-3538 or at jim.casey@peninsuladailynews.com.
Last modified: May 14. 2008 9:00PM