Tribal trial ties whalers to federal sentence terms
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By Jim Casey, Peninsula Daily News
NEAH BAY — Five men who killed a gray whale on Sept. 8 received
deferred prosecution Wednesday from the Makah Tribal Court.
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.
________
Reporter Jim Casey can be reached at 360-417-3538 or at
jim....@peninsuladailynews.com.