A US jury has charged five American Indians with misdemeanor counts in the killing of a protected gray whale without a permit last month.

The indictment charges the men, all members of the Makah tribe, with conspiracy, unlawful taking of a marine mammal and unauthorised whaling, all punishable by up to a year in jail and a $100,000 fine.

The men did not have permission for the hunt from the government or leaders of the tribe but still took two motorboats into the Strait of Juan de Fuca off the tribe's reservation at the tip of Washington's Olympic Peninsula on the morning of September 8 and harpooned the whale. They then shot it at least 16 times with a high-powered rifle. The Makah, who have been whalers for centuries, have sought to resume the hunts as part of their cultural heritage but their treaty rights to hunt whales have been tangled in the courts for several years.

The gray whale was removed from the endangered species list in 1994 but in 1999, with a permit from the National Marine Fisheries Service, Makah tribal members killed their first whale in more than 70 years. Makah member, Wayne Johnson was involved in both kills and proudly told reporters at the weekend that he wasn’t sorry for the recent kill and wished he had done it earlier. They will all be back in court on October 12.

The tribe itself still hopes to prosecute the men under its own laws.