Makah judge fails to empanel jury to prosecute whalers

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@seattletimes.com