2 Makahs to serve time for illegally killing whale

TACOMA — A federal judge Monday decided to lock up two Makah tribal members for illegally killing a gray whale last fall, while three others received two years' probation.

As part of the plea deal reached with federal prosecutors, whalers William Secor, Theron Parker and Frankie Gonzales also will have to perform community service in Neah Bay ranging from 100 to 150 hours, according to the sentence imposed by United States Magistrate Judge Kelley Arnold in U.S. District Court in Tacoma.

Two other whalers, Andy Noel and Wayne Johnson, did not take the deal and were found guilty in a bench trial of the same misdemeanor charge of violating the Marine Mammal Protection Act. They have appealed their convictions.

Johnson received the longest sentence, five months at the federal detention center in SeaTac — more than double what prosecutors had requested. Noel is to serve 90 days. Prosecutors had recommended 60 days' imprisonment for each. Each also will serve a year of probation and perform community service.

The judge also prohibited all five men from taking part in any whale hunt while on probation. "They've had their whale hunt," the judge said.

He fined the men from $25 to $50 each, citing an inability for them to pay higher fines.

In imposing the heavier jail time on Noel and Johnson, the judge said he saw them as the leaders. He also said he did not believe they undertook the hunt with the implied permission of the Makah Tribal Council, as some of the whalers claimed in documents provided to the court.

"I don't believe it, and if they did it's no excuse," Arnold said. He added that he believed Johnson felt "not an ounce of remorse."

"A conspiracy of silence"

The judge made his displeasure plain from the bench, stating that while Sherman Alexie is his favorite author and his interest in tribal matters intense — he referenced a personal library full of books about Indian affairs — he could not sympathize with what the whalers had done.

"They decided to take the law into their own hands. They defied their own community and the laws of this country, which they well knew."

He said Johnson's attorney was "disingenuous" for suggesting there was no difference in the role played by the whalers in the hunt, and accused the whalers of "a conspiracy of silence" to protect each other. "The Court didn't just fall off the turnip truck," he snapped. "I can make an independent judgment as to who is more responsible."

The judge also accused Johnson of "thumbing his nose at the court" for declining to address him and explain himself. He ordered the men taken into custody immediately after the sentencing.

Noel caught his father's eye and waved goodbye. Johnson, in a dress shirt and tie, looked stunned as the bailiff took away the men's keys and cellphones and led them out of the courtroom.

In September, the five men killed a gray whale in the Strait of Juan de Fuca, shooting it at least 16 times and sinking at least four harpoons into its flesh. The animal bled for some 12 hours before dying and sinking to the bottom.

The poaching was a black eye for the Makah Tribe, which is seeking a waiver from the federal government to allow it to legally hunt gray whales. A decision is years away on the tribe's proposal to kill up to 20 whales over five years.

The Makah are the only tribe in the country with a treaty right to whale, and the tribal council in 1998 entered into an agreement with the federal government allowing the tribe to legally hunt and kill its first whale in more than 70 years, in May 1999.

But last September, the whalers had no permit from either the tribe or the federal government. The whalers were indicted by a federal grand jury in October and charged with conspiracy, unlawful taking of a marine mammal and unauthorized whaling, misdemeanors punishable by up to a year in jail and a $100,000 fine.

Some say sentence too light

Some animal-rights activists were disappointed with the sentence imposed.

"I think it's light, given the grave injury that was done," said Will Anderson, of Friends of the Gray Whale. "It's sad all the way around."

Naomi Rose, senior scientist with the Humane Society of the United States, called jail time for Johnson and Noel "appropriate.

"I'm glad they got jail time. They didn't express remorse," she said. "There's no point in any of this if they don't learn something. I find this whole thing really sad. It divided a tribe and a community."

Other wildlife crimes have brought stiffer punishment. In June, a Grays Harbor County man lost his hunting privileges for two years after pleading guilty to illegally killing a blacktail deer. He also was fined $2,700, sentenced to two years probation, and had to pay a $3,000 fee for the return of his hunting rifle seized during the poaching investigation.

The defendants originally faced punishment on tribal charges of a year in the Neah Bay jail, $5,000 fines and temporary suspension of their treaty right to hunt and fish. In a news conference after the rogue hunt, the tribal council called for punishment to the fullest extent of the law.

In the end, the tribal prosecutor asked tribal judge Stanley Myers to defer any punishment and drop all charges in return for a year's good behavior. When the tribal judge insisted on going to trial, the court struggled to impanel a jury, despite subpoenaeing 200 people. The judge then went with the prosecutor's plan. Myers has since been dismissed.

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