Makah judges talk tough on whalers

No matter what the federal government decides to do with them, the five Makah tribal whalers who illegally killed a gray whale last weekend will still have to face Jean and Emma.

That's Jean Vitalis, chief judge of the Makah tribal court, and Emma Doulik, the associate judge. They're lifelong residents of Neah Bay and longtime leaders among the Makah. And they'll be the first to tell you this truth: Reservation justice is not blind.

"I look them right in the eye," Vitalis, 58, said of defendants before her court. "They know where I live and I know where they live. I know what kind of car they drive, and whether they have a license. I am a mother in the community, and grandmother, and to say we are blind, that is impossible."

Federal prosecutors said they'll likely decide this week whether to file charges against tribal members Wayne Johnson, Theron Parker, Andy Noel, Billy Secor and Frank Gonzales Jr. for getting into a motorboat Sept. 8, chasing down a gray whale and harpooning and shooting it. After struggling some 10 hours, the whale died and sank to the bottom of the Strait of Juan de Fuca.

The Makah tribal leaders immediately spun into damage-control mode, flying to Washington, D.C., last week to assure politicians and government officials that the hunt was unauthorized and regrettable. And they have assured the federal authorities that in addition to whatever the feds do, the men will face tribal prosecution.

That means tribal court in Neah Bay, where Vitalis and Doulik mete out justice on a first-name basis. They don't have law degrees, though they have had legal training. Instead, Vitalis and Doulik are what is known as traditional judges, trained in Makah tribal culture, customs, and ordinances passed by the tribal council.

Tribal courts are a key part of tribal sovereignty. But non-natives are not subject to their jurisdiction.

Unlike state courts on "the outside," which operate under uniform state laws, tribal courts here and at other reservations all over the state adhere to laws unique to each tribe. Each tribal court also hands out its own styles of sentences.

Those can include traditional penalties such as banishment from the reservation and suspension of a tribal member's treaty right to hunt and fish.

Not presumed innocent

While tribal courts typically use many of the same procedures as other courts, differences can be profound. For example, sometimes defendants don't have lawyers but are represented by another tribal member who is part of a "spokesman's bar."

Vitalis and Doulik are appointed by the tribal council and have 55 years of experience between them. Neither of them makes any pretense of a presumption of innocence for the five whalers. And that's not unusual in tribal court.

"Here it would be extremely difficult to maintain a position on who did what, if everyone knew you didn't do it, or you did," Vitalis said. "For the most part, when people come to court here, they would have a hard time coming to court and lying."

The nowhere-to-hide reality at Neah Bay cuts both ways, though.

"I have to stand in line at the grocery store alongside someone I have to put in jail for three months," Vitalis said.

Small-town justice

Both judges always offer to find a substitute if a defendant doubts their fairness. But Neah Bay, in Clallam County, is a very small town. "If we had to recuse ourselves on the basis of prior knowledge, we would never be able to hear anything or manage anything," Vitalis said.

The judgeship was her first real job out of college, Vitalis said, and she brought her reputation as a tough-love single parent to the bench. There was the time, for instance, that she deliberately rammed her truck — a "rez-runner rig, a big old huge thing," she says — into a car so hard she sent it right through a fence. Her son was in that car, and the driver was drinking.

"When those kids came before me in court, they were terrified of me not as a judge, but as a mother," she said.

Between them, Vitalis and Doulik have handled just about every kind of case, from traffic scofflaws to a woeful parade of drug and alcohol crimes. Tribal judges at Neah Bay handle both civil and criminal cases.

When it comes time for the whalers to stand trial, tribal law requires the judge to consider not only what happened to the whale but damage done to the entire tribal community.

Possible penalties could include up to a year in jail in Neah Bay and a $5,000 fine.

None of this is lost on the men who killed the whale.

"Of course I'm worried about what could happen," Wayne Johnson, one of the whalers, said last week.

"That jail is like a dog pound. I had a friend in there and they fed him the same surplus-commodity TV dinners from Fort Lewis for three months."

Johnson has been unapologetic since the hunt. "To me, I have the treaty to fall back on," he said. "That should be the supreme law. "

Neither Doulik nor Vitalis has any use for that rationale. "We have a treaty right to hunt and fish," Vitalis said. "But by God, that doesn't mean you go after king salmon when it is out of season."

The Makah tribe manages whale hunts closely, with a detailed plan adopted by the tribal council and the tribal whaling commission. Two of the illegal whalers — Johnson and Noel — as members of the tribal whaling commission helped write the very laws they broke. And that's what particularly offends Doulik, a 73-year-old tribal elder and judge for more than 30 years.

"They can't even plead ignorance," she said. "Right now I am just so angry because they hurt the tribe so blatantly."

The way Doulik sees it, the whalers hurt the tribe's efforts to restore legal whaling. "We are just trying to follow today's standards and procedures, and now we have gone back to square one, and it's really sad," she said.

Now Doulik knows the rest of the country will again be watching when the whalers come before the tribal bench. Investigation of the case is continuing, and no charges or trial date has been set. Both judges say they are ready for the responsibility, whenever it comes.

"It's terrible, but we are going to have to show we have the capability of taking drastic action on something like this, because it is wrong," Doulik said.

"The most important thing that will need to be expressed is the wrong that has been committed and how the effect of that wrong is like a chain reaction, and how it is resurfacing all the anger about our whaling.

"We have to show them that we mean business and they can't violate the law."

Lynda V. Mapes: 206-464-2736 or lmapes@seattletimes.com