Whaling trial could begin soon
NEAH BAY, Wash. – A new chief judge of the Makah Tribal Court has been hired, which means a trial could begin soon for five men accused of hunting a gray whale without permits.
Makah Chairman Micah McCarty said the new judge will be on the job ”by the end of the month.” McCarty said he hopes the trial will be held before the defendants go to trial on related charges in U.S. District Court in Tacoma.
”It is in our best interests to have our own court decide this before the federal court does,” McCarty said.
The trial was scheduled to begin in Makah Tribal Court Jan. 22, but was postponed after Makah’s contract with its judge was not renewed and another judge recused herself, citing strong feelings about the case.
Meanwhile, the U.S. District Court trial has been moved from March 18 to April 8.
Frankie Gonzales, Wayne Johnson, Andrew Noel, Theron Parker and William Secor Sr., all of Neah Bay, are accused of harpooning and shooting a gray whale in the Strait of Juan de Fuca on Sept. 8, 2007, without tribal permission and without a federal waiver to hunt a whale under the Makah’s treaty with the United States.
Makah prosecutors say the hunt violated Makah’s marine mammal management plan. The National Marine Fisheries Service says the hunt violated the U.S. Marine Mammal Protection Act.
While the men allegedly committed one offense – hunting a whale without permits – the alleged offense violated different tribal and federal laws and therefore the men can be tried in different courts without violating the double-jeopardy protections in the Fifth Amendment to the U.S. Constitution.
The men have pleaded innocent.
Conviction in tribal court carries a maximum penalty of a year in tribal jail and a $5,000 fine. Conviction in federal court carries a maximum penalty of a year in jail and a $100,000 fine, but U.S. Attorney’s spokesman Emily Langlie said in an earlier interview that federal prosecutors will ”take tribal sanctions into account” when the case goes to District Court.
The trials may put the spotlight on Makah’s treaty rights and historic relationship with gray whales as it does on the alleged incident.
Article 4 of the Treaty of Neah Bay, signed in 1855, allows the Makah people ”(t)he right of taking fish and of whaling or sealing at usual and accustomed grounds and stations …” Historically, whales provided the Makah with meat and oil, as well as bone and sinew for other useful products. The period before the hunt was a time of physical and spiritual preparedness.
The Makah discontinued whale hunting in 1920 because of declining whale populations, the result primarily of the so-called golden age of whaling in the 19th century.
The 1946 International Convention for the Regulation of Whaling provided for regulation of the commercial whaling industry but provided an exception ”when the meat and products of such whales are to be used exclusively for local consumption” by indigenous people.
In 1994, the National Marine Fisheries Service determined the gray whale’s population had sufficiently rebounded and removed it from the Endangered Species List. Makah hunted a whale in 1999 for the first time in almost 80 years.
But in 2004, the U.S. Ninth Circuit Court of Appeals ruled that the Makah, to pursue any treaty rights for whaling, must comply with a process prescribed in the Marine Mammal Protection Act. On Feb. 14, 2005, the National Marine Fisheries Service received a request from Makah for a limited waiver allowing them to hunt. That waiver has been opposed by several groups, among them the Humane Society of the U.S. and Sea Shepherd Conservation Society.
In May 2007, the International Whaling Commission renewed the Makah’s quota for the harvest of up to 20 gray whales over the next five years for subsistence purposes. Still, the tribe’s waiver request was not resolved by the time of the alleged incident.
While the defendants have pleaded innocent, several said in other published reports that they were frustrated by delays in obtaining permits to exercise their treaty rights and practice a hunt that is central to Makah culture.
McCarty called the illegal hunt ”a very visible attempt to raise a treaty rights issue through civil disobedience.”
He said a recent survey showed ”at least a high 60 percent or low 70 percent” of Makah people want to have whale reintroduced into their diet. Of those that aren’t interested in eating whale meat, most believe in Makah’s treaty right to hunt.
”It was a much higher favorable response to something like that,” McCarty said. ”It’s an issue of self-determination. It’s tribal patriotism.”
Richard Walker is a correspondent reporting from San Juan Island, Wash. Contact him at rmwalker@rockisland.com.
