Two Makah whalers get prison time

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TACOMA, Wash. - Two Makah whalers received prison sentences June 30 for their part in hunting a whale without a federal permit, a violation of the U.S. Marine Mammal Protection Act.

Judge J. Kelley Arnold, chief magistrate of the U.S. District Court in Tacoma, sentenced Wayne Johnson, a former Makah whaling commissioner, to five months in prison, one year of probation and 175 hours of community service.

Andrew Noel, also a whaling commissioner at the time of the hunt, received three months in prison, one year of probation and 200 hours of community service.

Frankie Gonzales, Theron Parker and William Secor Sr. agreed April 7 to plead guilty in exchange for probation and community service. On June 30, they each received two years of probation. In addition, Parker received 150 hours of community service; Gonzales and Secor each received 100 hours.

The defendants and Noel's attorney were surprised by the sentences, which exceeded the federal prosecutor's recommendation.

Attorney Jack Fiander, Yakama, said he had expected Johnson and Noel would receive no jail time, one year of probation and 150 hours of community service. The defendants could have each received a one-year sentence and a $100,000 fine.

''The penalty was quadruple what was expected,'' Fiander said. ''Part of why the judge threw the book at them was they didn't show enough remorse. If you have been prevented from exercising a treaty right for nine years, I don't expect you'd be inclined to show remorse.''

Johnson and Noel had admitted to hunting the gray whale without required permits. However, they declined a plea bargain and intended to appeal their sentences to put the spotlight on Makah's treaty rights and historic relationship with gray whales. But Fiander said both men cannot afford attorneys; Fiander handled Noel's defense pro bono, and Johnson had a federal public defender.

Fiander said he believed Johnson and Noel were being held in the Federal Detention Center in SeaTac, between Seattle and Tacoma. It was not immediately known whether the men would appeal.

All five men could still face prosecution in Makah tribal court for hunting without a tribal permit, a violation of Makah's marine mammal management plan.

The men hunted a gray whale Sept. 8, 2007, saying they were frustrated by delays in obtaining a federal permit to exercise their treaty rights and practice a hunt that is central to Makah culture.

Article 4 of the Treaty of Neah Bay, signed in 1855, allows the Makahs ''[t]he right of taking fish and of whaling or sealing at usual and accustomed grounds and stations.''

Makah voluntarily stopped hunting gray whales in 1926 because whale populations had been depleted due to non-Native commercial whaling. The International Whaling Commission declared a moratorium on all whaling 20 years later.

The gray whale was removed from the U.S. endangered species list May 5, 1995, and the Makahs hunted their first whale in more than 70 years May 17, 1999. But subsequent court decisions, in response to lawsuits filed by animal rights groups, required an environmental impact assessment before hunts could resume.

Makah filed a request for a federal permit Feb. 14, 2005. Four months before the Sept. 8 hunt, the International Whaling Commission renewed Makah's quota for the harvest of up to 20 gray whales over five years for subsistence purposes.

On May 9, the National Marine Fisheries Service released its draft environmental impact study of Makah's permit request; the study determined that Makah's proposal to hunt gray whales would have fewer negative impacts than five of six alternatives considered in the study.

Makah Chairman Micah McCarty feared the unauthorized hunt would not only jeopardize Makah's request for a waiver, but would ''set a precedent for usurping the treaty.'' In addition, the court struck down the defense's attempt to defend the right to hunt whales - with all of its spiritual ceremonies, preparation and rituals - under the American Indian Religious Freedom Act.

According to NMFS, the case had no bearing on the draft environmental impact study.

''Legal proceedings against the individuals are a separate matter for the federal and tribal criminal justice systems,'' the study states.

Darrell Markishtum, who was on the Makah whaling crew in 1999, said the U.S. has a treaty obligation to Makah.

The defendants ''should have never been in this situation in the first place,'' he said. ''The judges failed to uphold the U.S. Constitution and our treaty. Article VI of the Constitution protects our treaty. The government officials and their judges took an oath to uphold the Constitution. Many of us are tired of waiting for the EIS.''

Richard Walker is a correspondent reporting from San Juan Island, Wash. Contact him at rmwalker@rockisland.com.

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