http://seattletimes.nwsource.com/html/localnews/2004415609_makah16m.html

Makah judge fails to empanel jury to prosecute whalers

By Lynda V. Mapes

Seattle Times staff reporter

They promised tough prosecution, but in the end the Makah Nation couldn't
put together a jury to try five whalers who were charged with illegally
killing a gray whale off Neah Bay last fall.

Tribal Judge Stanley Myers on Wednesday instead granted the men one-year
deferred prosecution and promised to dismiss the charges if they committed
no offenses during that time. The whalers also were each ordered to pay a
$20 fine.

The deferral came after the judge summoned more than 200 people from the
remote village of Neah Bay on the Olympic Peninsula to serve as potential
jurors. But the judge gave up on empaneling a jury because just about
everyone was either related or said they had strong feelings about the
case, according to one of the whalers, Wayne Johnson.

It was a far cry from last fall, just after the five men shot and harpooned
a gray whale in the Strait of Juan de Fuca. The animal slowly bled to death
and died some nine hours later.

Then, a tribal council held a news conference and flew to Washington, D.C.,
to promise swift and sure prosecution. With a request pending before the
federal fisheries service for a waiver to enable the tribe to whale
legally, the rogue hunt was a major embarrassment.

"We are a law-abiding people and we will not tolerate lawless conduct by
any of our members," they said in a prepared statement at the time.

The men also were indicted in federal court with crimes that could have
meant up to a year in jail and $100,000 fines. In the end, federal
prosecutors offered a plea deal that meant no jail time as part of a
settlement that included the tribe waiving its prosecution in tribal court.

Three of the whalers took the deal, and sentencing in federal court is set
for June. Two other whalers refused to plead guilty and were found guilty
by the judge in Tacoma. They are appealing the conviction but face
sentencing in June, including fines and possibly community service, but
very likely no jail time.

Last month, the tribal judge surprised many when he refused to honor the
federal plea deal and instead ordered all five whalers to stand trial in
Neah Bay.

Johnson said yesterday he would have gladly faced trial and would have
appealed all the way to the U.S. Supreme Court to defend his treaty rights
to kill a whale. Asked whether he'd do it any differently if he could do it
over, he answered, "I'd land the whale on the beach."

Animal-rights activists were dismayed at the tribal judge's ruling
Wednesday.

"There should have been a better show of discipline here," said Naomi Rose,
lead scientist with the Humane Society of the United States in Washington,
D.C.

Meanwhile, a public comment period is now under way on a federal draft
environmental-impact statement on the tribe's proposal to legally whale
under their treaty. A public hearing is scheduled in Seattle on June 2.

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