Possible plea deal crumbles in Makah whaling case
Five Makah Indian whalers accused of illegally killing a gray whale last September came to Tacoma on Monday ready to plead guilty – so long as they didn’t have to do any jail time.
But after U.S. Attorney Jeff Sullivan raised the possibility that the federal government might try to curtail their individual whaling rights, three of the accused balked and the judge declared a recess.
U.S. Magistrate Judge J. Kelley Arnold said he would hold off proceedings against Wayne Johnson, Theron Parker, Bill Secor, Frankie Gonzales and Andrew Noel until at least Thursday.
In court, Sullivan told the judge he wants to find out whether hunting restrictions could be a condition of probation for the five. Outside the courtroom, Sullivan told reporters, “I believe these men’s rights should be limited.”
He also said he was uncertain whether the U.S. government can exercise that authority. He will decide how to proceed within a day or two, he said.
In court, Johnson, Parker and Noel told the judge they were surprised to hear Sullivan talking about their hunting rights. Because their lawyers were absent, Secor and Gonzales were not part of the proceeding.
“Mr. Johnson, is this news to you?” Arnold asked.
“Yes,” replied a startled Johnson, “it’s big news for me.”
Parker told Arnold he needed time to talk to his lawyer.
“You guys are far beyond where my knowledge lies,” he said.
Jack Fiander, a lawyer representing Noel, told Arnold the proposed hunting ban “might have been a deal killer.”
The Makahs are the only indigenous people in the Lower 48 states who claim a treaty right to hunt whales. In 1999, with the support of the U.S. government, the tribe killed its first whale in 70 years. Because of continued legal wrangling, tribal leaders have not authorized another.
In September, a gray whale died after it was harpooned and shot multiple times in a hunt that took place without the tribe’s approval.
The five men blamed for killing the whale are accused of violating the Marine Mammal Protection Act, which prohibits whaling. They were arrested in September after the U.S. Coast Guard disrupted an unauthorized whale hunt in the Strait of Juan de Fuca.
After the 1999 hunt, animal rights activists sued to prevent the U.S. government from backing the tribe’s 1855 treaty. In 2002, the U.S. Circuit Court of Appeals said the Makahs could not conduct another authorized hunt without a Marine Mammal Protection Act waiver.
At the time of the September hunt, the tribe was seeking a waiver.
Outside the Tacoma courtroom Monday, lawyer Fiander disputed Sullivan’s suggestion that the federal government has the power to regulate the individual rights of members of treaty tribes.
“Only the tribe can do that,” said Fiander, who is a Yakama Indian. “The tribe reserved that right.”
Also outside the courtroom, Johnson, the whaling captain and perhaps the most outspoken of the crew, said he’s prepared to stand trial rather than consider another plea bargain.
“I’ve no chance but to go all the way now,” he said.
In addition to the federal action, the five men face tribal charges of hunting without a permit.
Earlier Monday, John Arum, who represents the Makah Indian Tribe, said the tribe had promised the men they would not be prosecuted in tribal court if they pleaded guilty in U.S. District Court.
In court, Sullivan said attorneys in his office had not talked to the tribal prosecutor.
“This plea is not contingent on anything that happens in tribal court,” he said.
The maximum penalty for violating the Marine Mammal Protection Act is up to a year in jail and a $100,000 fine.
Sullivan and assistant U.S. attorney Jim Oesterle told Judge Arnold they would not recommend jail time or a fine, but would suggest up to five years of probation and community service.
Susan Gordon: 253-597-8756
susan.gordon@thenewstribune.com
