Trial could cast spotlight on treaty rights as well

NEAH BAY, Wash. - Five Makah men were scheduled to go to the first of two trials on charges they hunted a gray whale without a permit in September 2007.

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 Sept. 8 without tribal permission and without a necessary waiver to hunt a whale under Makah;s treaty with the United States.

The five pleaded innocent in December in Makah Tribal Court. Trial was expected to begin Jan. 22. Conviction carries a maximum penalty of a year in tribal jail and a $5,000 fine.

They are also scheduled for trial March 18 in U.S. District Court in Tacoma on charges the hunt violated the Marine Mammal Protection Act. Conviction carries a maximum sentence of a year in jail and a $100,000 fine.

While the men are accused of committing one offense - hunting a whale without a permit - that offense is in violation of 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 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 ''(t)he right of taking fish and of whaling or sealing at usual and accustomed grounds and stations.''

Because of declining whale populations, the result primarily of the so-called golden age of whaling in the 19th century, the Makah discontinued whale hunting in 1920.

In 1946, the United States signed the International Convention for the Regulation of Whaling to provide for regulation of the commercial whaling industry. While the convention placed a ban on gray whale hunts, it 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 that the gray whale population had rebounded to a level sufficient to remove it from the Endangered Species List. Makah hunted a whale in 1999 for the first time in almost 80 years.

In 2004, the U.S. 9th 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 U.S. Humane Society and Sea Shepherd Conservation Society.

In May 2007, at the 59th annual meeting of the International Whaling Commission in Anchorage, Alaska, Makah received the renewal of a quota for the harvest of up to 20 gray whales over the next five years for subsistence purposes.

Still, Makah's waiver request was not resolved by the time of the September 2007 incident. Several defendants 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.

The relationship between Makah and whales is old; humpback and gray whale bones and barbs from harpoons dating 2,000 years have been found at the Makah village at Ozette.

''The conduct of a whale hunt requires rituals and ceremonies which are deeply spiritual,'' according to a history on the official Makah Web site, www.makah.com.

''They are the subject and inspiration of Makah songs, dances, designs and basketry,'' the site explains. ''For the Makah, whale hunting imposes a purpose and a discipline which benefits their entire community. It is so important to the Makah that in 1855, when the Makah ceded thousands of acres of land to the government of the United States, they explicitly reserved their right to whale within the Treaty of Neah Bay.

''Whales gave oil, meat, bone, sinew and gut for storage containers: useful products, though gained at a high cost in time and goods. To get ready for the hunt, whalers went off by themselves to pray, fast and bathe ceremonially. Each man had his own place, followed his own ritual and sought his own power. Weeks or months went into this special preparation beginning in winter and whalers devoted their whole lives to spiritual readiness.''

Makah Chairman Micah McCarty said the U.S. attorney's office, National Marine Fisheries Service Enforcement and Makah have been working cooperatively as the case moves to trial.

''There is a new sensitivity,'' McCarty said. ''We have a cooperative relationship. We had hoped the U.S. Attorney would transfer this case to tribal jurisdiction, but there was too much national political pressure.''

Emily Langlie, spokesman for the U.S. attorney's office in Seattle, said federal prosecutors will ''take tribal sanctions into account'' when the case goes to district court.

''Our intention has been to pursue this case because federal statutes are involved. But some of the sanctions available to Makah, such as loss of fishing rights for three years, are significant.''

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