1855 treaty trumps law in Makah whaling, defense will argue in hearing for five whalers

TACOMA — The names and faces will be different, but the issue will stay the same: Does a federal treaty trump federal regulations?

The Treaty of Neah Bay in 1855 guaranteed the Makah tribe the right to hunt and kill whales and other marine mammals in the Pacific Ocean and the Strait of Juan de Fuca.

The Marine Mammal Protection Act that Congress passed 117 years later protects the same species.

On Tuesday, lawyers for five Makah men who killed a gray whale Sept. 8 will argue pretrial motions in front of U.S. Magistrate J. Kelley Arnold in federal district court in Tacoma.

The issues are so complicated that the federal attorney Friday asked to file a 19-page brief — seven pages longer than the 12-page limit imposed by the court’s guidelines.

“Defendants’ motions raise complex legal issues involving international treaties, conventions, agreements and domestic statutes,” said the motion by Assistant U.S. Attorney James Oesterle.

The five men charged in federal court are Andy Noel, Wayne Johnson, Frankie Gonzales, Theron Parker and William Secor Sr.

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