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Incident over whale shot by Makah members angers tribal judge

Neah Bay, Washington (AP) 9-07

Jean Vitalis isn’t feigning impartiality when it comes to the case of five Makah tribal members who hunted – and killed – a gray whale without permission during September.

“We have a treaty right to hunt and fish,” the chief judge of the tribe’s court said. “But by God, that doesn’t mean you go after king salmon when it is out of season.

Nor is Emma Doulik, the 73-year-old associate judge.

“Right now I am just so angry because they hurt the tribe so blatantly,” she said.

These are the judges the five men could face, perhaps in addition to a U.S. District Court judge. Federal prosecutors say they might 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 10 hours, the whale died and sank to the bottom of the Strait of Juan de Fuca.

Tribal leaders rushed to Washington, D.C., where they apologized and tried to do damage control in an effort to keep the killing from hurting their efforts to hunt legally again. In 1999, they killed their first whale in 70 years.

Vitalis and Doulik are lifelong residents of Neah Bay and leaders among the Makah. They don’t have law degrees, but they have had legal training. They are traditional judges, trained in Makah tribal culture, customs, and ordinances passed by the tribal council.

And they’ll be the first to tell you: Reservation justice is not blind.

“I look them right in the eye,” Vitalis, 58, told The Seattle Times 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.”

Tribal law requires the judge to consider not only what happened to the whale but damage done to the entire community. Possible penalties could include up to a year in jail in Neah Bay and a $5,000 fine.

“Of course I’m worried about what could happen,” Wayne Johnson, one of the whalers, said. “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.”

But Johnson, who is unapologetic about the hunt, insists that the whalers can fall back on their treaty rights – an argument Vitalis and Doulik reject out of hand.

“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,” Doulik said.

Is it problematic for Doulik and Vitalis to sit on cases about which they have already formed opinions? They said they always offer to find a substitute if a defendant doubts their fairness.

“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.

No tribal charges have been filed 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.

On the Net:
Makah Nation: www.makah.com/
NOAA Fisheries: www.nmfs.noaa.gov/
Information from: The Seattle Times, http://www.seattletimes.com

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