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Originally published Wednesday, February 20, 2008 at 12:00 AM

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Judge dismisses 1 charge against Makah whalers

The federal prosecution of five Makah tribal members who killed a gray whale last September will go forward, though part of the case against...

Seattle Times staff reporter

TACOMA — The federal prosecution of five Makah tribal members who killed a gray whale last September will go forward, though part of the case against them has been dismissed.

Chief U.S. Magistrate Kelley Arnold granted a motion Tuesday to dismiss a charge against the whalers brought under the Whaling Convention Act, ruling the act did not appropriately apply to a criminal case.

But Arnold let stand charges against the whalers brought under the Marine Mammal Protection Act.

The tribe has a treaty right to kill gray whales and legally did so in 1999, when it secured a permit.

But the five whalers did not have a permit for the hunt on Sept. 8, when they harpooned and shot a whale in the Strait of Juan de Fuca near Neah Bay. The whale died slowly before sinking.

The whalers have pleaded not guilty to the charges, arguing that treaty rights are the supreme law of the land.

Defense attorney Jack Fiander had sought to have the entire case against them dismissed. He argued that Alaska natives are allowed to hunt whales, while Makah whalers are being criminally charged for hunting the same species, violating the Makahs' constitutional right to equal protection under the law.

But the magistrate said the two groups are not similar because Congress created an exemption to the Marine Mammal Protection Act for Alaska natives — but not for the Makah. The Makah Tribe is in the process of seeking an exemption.

The whalers listened intently but silently to the court proceedings, backed by family members who made the trip from Neah Bay to support them.

Tribal Chairman Micah McCarty, a former whaling crew member, also attended the hearing. "I feel like I can breathe half a sigh of relief," McCarty said after the hearing, referring to the magistrate's dismissal of the one charge, which the tribe saw as a further infringement on its treaty rights.

The federal trial is to begin in April.

The five whalers also face prosecution soon by the tribe for violating tribal restrictions on whale hunts. McCarty said the tribe would rather settle its case against the five than see it go to trial.

Will Anderson, of Friends of the Gray Whale, an animal-rights group, said he wants a trial. "The public needs to see what it takes to kill a whale. They are trying to keep it out of the light of day."

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

Copyright © 2008 The Seattle Times Company

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