Grand jury indicts 5 Makahs in illegal whale hunt

A federal grand jury returned indictments today against all five men arrested in the killing of a gray whale in early September.

The charges are all misdemeanors.

According to the indictment, the whalers allegedly sought weapons and ammunition from the Makah Tribe the day before the hunt, claiming they wanted them for practice, according to the indictment. The whalers also got permission to get a 12-foot boat from the tribe and obtained a large buoy from a Makah tribal employee.

The next morning the five men set out in two boats, encountered a gray whale and struck it with at least four harpoons, the indictment said. They then attached four buoys to the whale and shot it at least 16 times with high-powered weapons obtained from the Makah Whaling Commission.

According to the indictment, the fatally injured whale swam nine miles. About 12 hours after it was struck, it died and sank in about 700 feet of water.

The five men have been summoned to appear in federal court in Tacoma Oct. 12.

The men charged are: Frankie Gonzales, Wayne Johnson, Andrew Noel, Theron Parker and William Secor. All are charged with conspiracy, unlawful taking of a marine mammal, and unauthorized whaling.

"The charges brought today are the most serious available to the government in this case," U.S. Attorney Jeffrey Sullivan said in a prepared statement.

"We were waiting for the shoe to drop for a long time," said Naomi Rose, marine mammal scientist for the Humane Society of the United States. "We welcome these charges, we think they are what should have happened. These are strong charges, with the maximum penalty the law allows. What we need to do now is wait and see what happens.

"These are just potential penalties. We will withhold our judgment on what the prosecution actually is."

Rose said the whalers took a huge risk, not only with the whale, which suffered 12 hours before dying, but with the public, which could have been hurt by the firing of a high powered rifle.

The federal prosecution does not take the place of tribal action against the whalers, said an attorney for the tribe, John Arum. "The tribe has promised prosecution to the fullest extent of the law, and it intends to do that," Arum said.

If convicted under federal law, the whalers could face up to a year in jail and a fine of up to $100,000. Under tribal law, the whalers could do up to a year in jail, pay up to a $5,000 fine and face suspension of their treaty right to fish for up to three years.

Makah Tribal Council member Micah McCarty said the tribe is eager to get on with trying the case, but it has been held up, waiting for federal officials to finish their work. Federal authorities have all the most pertinent evidence in the case and won't turn it over to the tribe until the federal case is concluded.

"Any jury of their peers would say, OK, where is the evidence?" McCarty said. "We are kind of in a catch-22 situation."

Jim Oesterle, assistant US attorney for environmental crimes, said the investigation is continuing, and he was not sure when it would conclude.

The tribe has sent divers in search of one of the guns that went overboard during the illegal hunt. But so far the weapon, a. 577 caliber rifle belonging to the tribe, remains at the bottom of the Strait of Juan de Fuca.

Tribal leaders have been impatient to get on with the case, McCarty said, because of pressure in Washington, D.C., from anti-whaling interests arguing the tribe isn't really going to prosecute its own.

"Our timelines are connected at the hip with the federal timelines. Initially we thought we would be in lock step cooperation and it became a one-way street pretty quickly. Evidence and first hand accounts were not shared with tribal authorities, so our investigators had to duplicate that, and may not have been as fresh as the federal authorities. It just became much more difficult for our authorities to proceed, missing key evidence and important information."

The tribe needs political support in Washington, where it is seeking a federal waiver from the Marine Mammal Protection Act to allow legal hunts in the future. The illegal hunt has set that effort back, Arum said. "This isn't good. I wish it hadn't happened."

Vicki Nomura, special agent in charge for the National Marine Fisheries Service, confirmed the rogue hunt could delay the tribe's press for a waiver.

That, McCarty said, is unfair. "A tribal government and its people are being victimized.

"This just puts further pressure for holding a treaty right hostage until these five Makah men see their day in court, with special interests unabashedly defaming a law-abiding tribe because of the actions of five individuals.

"It reflects on the integrity of the U.S. trust responsibility. This just wraps a whole people in a situation that shouldn't have had to come to this."

The tribe has a right to whale guaranteed in its treaty of 1855 with the U.S. government. But a 9th circuit court decision in 2005 ruled that the tribe must obtain a waiver from the Marine Mammal Protection Act before it can legally hunt whales again. The tribe legally took its first whale in 1999, promoting a suit by animal rights groups.

Whaler Wayne Johnson has said he was tired of waiting for the permit, and decided to go out and hunt a whale, as his ancestors always had, and as the treaty allows.

Johnson has said repeatedly since the hunt that he didn't regret his actions. But he was more circumspect Thursday.

"I got three counts against me," Johnson said. "I'm a little worried, of course."