and the statutes and regulations challenged by the defendant 

 provided fair notice of the conduct that they forbade. 



A trial was scheduled for 18 November 1988; however, when 

 the District Court adopted the Magistrate's recommended posi- 

 tions, the defendant entered a guilty plea but reserved the right 

 to appeal the interpretations of the applicable law. The 

 defendant was sentenced on 1 March 1989 to two months in a 

 community treatment center, a fine of $3,000, and three years 1 

 probation, during which time he was forbidden from whaling. 



The defendant filed a notice of appeal on 3 March 1989, 

 arguing that the Federal Government does not have authority to 

 regulate whaling by Alaska Natives. In its brief filed on 21 

 August 1989, the Government argued that the defendant was 

 precluded from challenging the authority of the United States 

 before the appellate court because the issue was not raised at 

 trial. In addition, the Government claimed that the defendant 

 had not made the requisite factual showing to prove that he 

 possesses legally recognizable aboriginal hunting rights. 

 Further, it was argued that, even if such rights are presumed, 

 those rights have been abrogated by subsequent Federal 

 legislation, including the Whaling Convention Act, the Marine 

 Mammal Protection Act, and the Endangered Species Act. Oral 

 argument in the matter was heard on 7 December 1989 by the Ninth 

 Circuit Court of Appeals. At the end of 1989, no decision had 

 been issued. 



United States v. Clark — Another criminal prosecution of an 

 Alaska Native involving the take of marine mammals occurred in 

 1989. The defendant, a Yup'ik Eskimo, was charged with taking 

 marine mammals in a wasteful manner by failing "to salvage for 

 human consumption the edible meat of approximately nine walrus." 

 Prior to trial, the defendant filed a motion to dismiss the 

 charges. He claimed that the Marine Mammal Protection Act's 

 requirement that the taking of a marine mammal by an Alaska 

 Native not be accomplished in a "wasteful manner" was 

 unconstitutionally vague. The motion to dismiss was denied and 

 the trial was held on 19-20 July 1989. The jury found the 

 defendant guilty of illegally taking marine mammals in a wasteful 

 manner. On 24 August, he was sentenced to three months in jail 

 and fined $550. 



A stay of the sentence pending appeal was granted and, on 30 

 August 1989, a Notice of Appeal was filed. The defendant's 

 appellate brief, filed on 1 December 1989, argued that the 

 statutory requirement that Native taking not be wasteful and the 

 Fish and Wildlife Service's regulatory implementation of the 

 provision are unconstitutionally vague because "affected persons 

 must guess at what conduct is proscribed and because arbitrary 

 enforcement is encouraged." 



171 



