Makah Whaling Prosecution in Both Tribal and Federal Courts


Makah tribal members seek postponement of federal trial for illegal whale hunt

Seattle Times staff reporter


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This grey whale was illegally harpooned, shot and killed by five Makah tribal whalers.



Defense attorneys for Makah tribal members accused of illegally hunting a gray whale last September are seeking to postpone a federal trial at least until March so they have more time to prepare their case.

And despite Makah leaders’ earlier vows of swift tribal justice for the men, a trial in tribal court has been slowed because the tribal prosecutor has family and business ties to two of the accused.

The five whalers were indicted on violations of the Marine Mammal Protection Act by a grand jury in U.S. District Court in October. The misdemeanor charges could mean up to a year in jail and a $100,000 fine.

No date has been set for a trial yet, but the defense request for a delay means early March or even April, said Assistant U.S. Attorney Jim Oesterle.

“We would just as soon do this sooner than later,” Oesterle said. The five men harpooned and shot a gray whale in the Strait of Juan de Fuca Sept. 8. The tribe did not have a necessary waiver to hunt a whale under its treaty with the U.S. The case has hampered efforts by the tribe to get that waiver, and that makes tribal leaders eager to put the case behind them.

But Neah Bay is a small town, and the tribe needs to find someone other than its usual tribal prosecutor to try two of the defendants because she is related to one of them and had a family business relationship with the other.

Like many cases, this one may actually never see trial. Members of the Makah tribal council have been discussing the benefits of a settlement, in which a single plea agreement could be negotiated between the federal and tribal governments, said Micah McCarty, a tribal council member.

“I believe it would be better for the federal and tribal government to keep this from going to trial,” McCarty said. “We would lean favorably toward that, we have had discussions just recently among the council, and I think my colleagues would concur if this is a possibility. A trial could be turned into a media circus that we don’t want to be a part of.”

John Arum, an attorney for the Makah Nation, said such a discussion is premature. But he agreed taking the case to trial was not the best outcome for anyone.

“We are doing what we can to make it less likely that will happen,” Arum said. McCarty said the tribe remains committed to prosecution. “We have a sense of urgency in light of our reputation that we are a government that respects the rule of law,” he said.