http://seattlepi.nwsource.com/local/356762_makah28.html

3 Makah whalers plead guilty in deal to avert jail
Two others refuse, opt for jury trial
By PAUL SHUKOVSKY
P-I REPORTER

TACOMA -- Three members of a five-man team of rogue whalers from the Makah Tribe pleaded guilty Thursday to killing a gray whale without a federal permit.

The Coast Guard took the men into custody Sept. 8 during an unauthorized hunt. The whalers went hunting out of a sense of frustration over legal delays in getting the tribe a permit to resume its ancient practice of whaling.

The tribe legally took a whale for the first time in more than 70 years in 1999. But the tribe, at the extreme Northwest tip of the continental United States, has been unable to hunt again because of court challenges by animal-rights activists that forced the government to conduct lengthy environmental reviews of the hunt.

All five whalers were poised to plead guilty Monday as part of an agreement with federal prosecutors. But the deal collapsed because the government asserted that it might seek to prohibit them from engaging in legal whaling during their probation.

That was a "deal breaker" for at least three of the whalers. And when the court reconvened Thursday afternoon, it was unclear whether the government would relent on having the option of prohibiting whaling during probation.

But U.S. Attorney Jeff Sullivan decided that if the Makahs receive a government permit to whale, it's up to the tribe to decide which of its members can participate, said Sullivan's spokeswoman, Emily Langlie.

Frankie Gonzales, William Secor Sr. and Theron Parker pleaded guilty Thursday to a single misdemeanor count of taking the whale in violation of the Marine Mammal Protection Act. The government agreed not to recommend a sentence of jail time to Magistrate Judge J. Kelley Arnold. Arnold could impose up to one year behind bars. The charge also carries a fine of up to $100,000. But it's unlikely that such an amount would be imposed on the men who come from the impoverished fishing village of Neah Bay.

Without the imposition of jail time, the men could receive up to five years of probation and be ordered to perform up to 100 hours of community service.

Even though prosecutors took the no-whaling-while-on-probation issue off the table, Andy Noel and whaling captain Wayne Johnson declared that they would stand trial as a matter of principle.

"It's principle and mistrust," said Johnson, who is fed up with what he sees as government interference with Makah whaling -- a right reserved by the tribe in 1855 in a treaty with the United States.

Attorney Jack Fiander, who represents Noel, said a key to defending the two men will be an argument that the government's glacial pace in permitting a whale hunt violates their religious liberty. Whale hunting is an integral part of Makah culture and spirituality. Not allowing the men to whale since 1999 is "like someone telling you that you can't go to church for 10 years," Fiander said.

The decision by Johnson and Noel to proceed to trial on April 8 puts the Makah Tribal Council in a difficult position. The council has been concerned that a legal opinion could emerge at trial or in subsequent appeals that would give federal agencies new authority to regulate treaties without direct authorization from Congress.

The council had hoped that all five men would agree to a plea bargain and remove the threat that legal decisions could water down the treaty.

Secor, Gonzales and Parker will be sentenced June 6.

The probability that the men will get probation without time behind bars is disconcerting to D.J. Schubert of the Animal Welfare Institute.

"The death and suffering of this gray whale should mean something," said Schubert. "If the worst they get is probation, it's a severe disappointment."

Schubert said his organization would seek to derail Makah efforts in Congress to obtain an exemption from the Marine Mammal Protection Act.

P-I reporter Paul Shukovsky can be reached at 206-448-8072 or paulshukovsky@seattlepi.com