Court memos suggest on eve of sentencing that Makah Tribal Council OK'd whale kill last year
By Jim Casey, Peninsula Daily News
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Theron Parker, 45, provided U.S. District Court in Tacoma with statements to that effect as he sought leniency in the sentence he will receive on Monday.
Theron Parker and four other Neah Bay men — Wayne Johnson, Frankie Gonzales, William Secor and Andy Noel — are scheduled to appear for sentencing at 3 p.m. Monday in the federal court in Tacoma for their parts in the Sept. 8 hunt.
In one of five statements supporting Theron Parker's bid for a shorter sentence, a witness said then-Tribal Chairman Ben Johnson Jr. told council members, "I think it's time to go fishing."
"He was referring to getting a whale," wrote Luke Warkishtum of Port Angeles, who said he heard the comment almost two months before the hunt.
"The whole tribal council nodded in agreement."
Warkishtum sent his statement to the hunter about a month after a gray whale, wounded by harpoons and high-powered bullets, sank in the Strait of Juan de Fuca.
Another witness, Paul Parker of Neah Bay, wrote about what he said was an exchange between Theron Parker and Ben Johnson:
"Theron asked Chairman Johnson, 'What if I went out and got a whale?' The chairman's response was 'Go ahead, get one.'
"Theron asked if he would have the Makah Tribal Council's support.
"Ben [Johnson] said they would support the whale hunt if Theron decided to go out for a whale."
New chairman 'not aware'
Neither Ben Johnson nor the tribe's Seattle attorney, John Arum, could be reached for comment.
The tribe's current chairman, Micah McCarty, said, "I'm not aware of this."
Paula Olson, Theron Parker's court-appointed lawyer, provided Markishtum's and Paul Parker's hand-written statements as exhibits for her sentencing memorandum.
It asks that Theron Parker receive a sentence of one year's unsupervised probation with 100 hours of community service
Federal prosecutors have recommended that Theron Parker and two more defendants who pleaded guilty to one count of violating the Marine Mammal Protection Act receive two years' probation.
The others who pleaded guilty are Gonzales and Secor.
Two more defendants, Wayne Johnson and Noel, refused the plea bargain and were found guilty in a brief bench trial of two violations of the marine mammal act.
Prosecutors have recommended that they receive six-month sentences in a federal facility, and a year's probation.
Filed last week
Olson filed the letters as part of a memorandum to the court on Tuesday.
"I've been holding those letters from Day 1," Olson said Friday.
"I got those letters right after they were written."
One was dated Sept. 9; another, Oct. 4. Two more were written Sept. 21, and a fifth letter was not dated.
Blaming the council wouldn't have helped the whalers in court, Olson said, because it lacked key legal elements for a successful defense.
Her memorandum on Theron Parker's behalf said tribal council members "privately and individually told some of the defendants that . . . the council would back them up and ensure that, if they were arrested, they would be protected by the tribe."
Tribal case disintegrates
The Makah Tribal Council condemned the hunt the day after it happened, and promised to prosecute the men.
The five men received deferred prosecution
In May the Makah Tribal Court decided upon deferred prosecution, saying that if the five men abided for a year by conditions set the federal court, then tribal charges that include animal cruelty and discharging a firearm would be dropped.
The Sept. 8 hunt also was governed by "unwritten law," one defense lawyer said.
According to a memorandum by Jack Fiander, attorney for Noel, "if a chief tells you to do something or to perform a task, the unwritten law requires you to perform it unquestioningly."
Theron Parker was to be the harpooner, and made spiritual preparations for the task, Fiander said, adding that the hunt started when whales were observed in the Strait that Saturday morning.
According to Fiander, another Makah rifleman thought the hunt was scheduled for Sept. 9.
"Trained Makah marksman Donnie Swan . . . was heard to say . . . that he wondered why the five men decided to go out, because he was supposed to go out with them the following day," Fiander wrote.
Hundreds watched hunt
About 200 tribal members watched from shore as the hunt went awry, Olson said.
"Once the Coast Guard arrived, the council abandoned Theron and the other four defendants, leaving them to take the blame," said Olson's memorandum.
"Instead of the support they were promised, they received national media disparagement, [were] labeled as "rogue" hunters and [were] accused of disgracing their tribe."
Olson said hat Theron Parker, member of a generations-long line of whalers, trusted the tribal council's direction to kill a whale.
"The blessing and encouragement of his tribal leaders was as important to him as a permit," Olson wrote.
"He truly believed he was carrying out a lawful tribal order.
"The betrayal of his tribal leaders, the tragic and unnecessary death and waste of the whale, and Theron's inability to help his tribe haunts him."
Tribe pursuing permit
Meanwhile, the Makah continue their pursuit of a waiver from the marine mammal act that would allow them to return legally to whaling.
Their proposal is to kill a maximum of four whales a year over a five-year span.
The tribe hunted whales as a staple of the Makah diet and mainstay of its social system, ceasing when gray whales nearly were extirpated but killing a 30-ton female in 1999 after grays were dropped from the Endangered Species List.
A hunt in 2000 was unsuccessful, and anti-whalers' legal challenges finally made the tribe subject to the marine mammal act, despite the guarantee the tribe could continue whaling in the 1855 Treaty of Neah Bay.
The draft environmental impact statement on the proposed resumption of whaling can be viewed at www.nwr.noaa.gov, and at all branches of the North Olympic Library System.
The National Marine Fisheries Service will take comments on the plan through Aug. 15.
To make a comment, e-mail makahdeis.nwr@noaa.gov.
Coast Guard upset tribe's whale plans
NEAH BAY — The Makah plan for the Sept. 8 whale kill called for hunters to harpoon and shoot a whale, then pull it into Neah Bay, according to an attorney who is requesting leniency for one of the five men involved in the hunt.
Lookouts on the shore were to warn of activity at the nearby Coast Guard station, and the strategy was for the whale to be ashore before the Coast Guard could intervene, said Paula Olson, attorney for Theron Parker — one of the five men who will be sentenced Monday for their parts in the hunt — in statements submitted to U.S. District Court.
"Part of their deal was that the tribal council would run interference with the Coast Guard," Olson said.
Instead, a non-tribal boater east of Neah Bay alerted the Coast Guard, and its patrols impounded the whale, arrested the hunters, and seized their equipment, she said.
The wounded whale floated for at least 9½ hours because the Coast Guard could not obtain permission from the National Marine Fisheries Service to euthanize it. It finally died and sank.
Coast Guard personnel prevented marksman Donnie Swan from killing the animal as then-Tribal Chairman Ben Johnson Jr. had ordered, according to three witnesses.
According to a written statement by Ted Noel, Swan asked Johnson via cell phone, "What do you want me to do?"
"Shoot it," Johnson is reported as saying.
Swan then said, "Just tell us what you want to do with it."
"Shoot it, cut it loose," Noel said Johnson ordered.
"We don't want it shown that we are supporting these five guys."
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Reporter Jim Casey can be reached at 360-417-3538 or at jim.casey@peninsuladailynews.com.
Last modified: June 28. 2008 9:00PM