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Thursday, May 15, 2008 - Page updated at 08:55 PM

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Makah court defers prosecution for 5 who killed gray whale

NEAH BAY, Wash. —

A Makah tribal judge has deferred prosecution for five tribal members who killed a gray whale last September in an unsanctioned hunt off the Washington coast.

Wednesday's decision came months after the Makah Tribal Council had publicly promised to prosecute those responsible and had called the hunt "a blatant violation of our law."

Tribal Judge Stanley Myers had called more than 200 potential jurors but was unable to seat a jury since most either had strong opinions on the case or were related to the defendants, said one of the five, Wayne Johnson.

According to Johnson, Myers indicated he would dismiss the tribal charges, including animal cruelty and discharging a firearm, in a year if the five have abided by conditions that will be set next month in U.S. District Court in Tacoma, where the men will be sentenced on federal misdemeanor counts. The tribal court also fined the men $20 each.

Associated Press messages left for tribal leaders were not immediately returned Thursday.

In addition to Johnson, the five included Theron Parker, Andy Noel, William Secor Sr. and Frankie Gonzales.

In April, U.S. Magistrate Judge J. Kelley Arnold convicted Johnson and Noel of conspiracy to violate the Marine Mammal Protection Act and unlawfully taking a marine mammal, both misdemeanors.

In March, Parker, Secor and Gonzales accepted a federal plea deal, admitting that they violated the Marine Mammal Protection Act, also a misdemeanor, after prosecutors agreed they would not recommend jail time or seek to curtail the men's hunting rights.

The federal plea deal had included the tribe waiving prosecution in tribal court, but last month the tribal judge refused to honor that portion of the deal and ordered all five whalers to stand trial in Neah Bay, on the northwest tip of the Olympia Peninsula.

The tribal court's decision to defer prosecution was seen as backpedaling by animal welfare activists.

"Where is the justice that the Tribal Council promised to the citizens of Clallam County and the state of Washington for the horrendous attack on a gray whale?" asked Chuck Owens, founder of Peninsula Citizens for the Protection of Whales. "This ruling should cause the National Marine Fisheries Service to reassess the tribe's credibility to co-manage the killings of whales."

The men harpooned the whale four times and shot it at least 16 times last Sept. 8. The animal died nine hours after the attack.

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The men did not have the tribe's permission for the hunt, nor did they have a federal permit to kill the whale, which eventually sank and was not harvested.

The Makah, who have been whalers for centuries, have sought to resume their hunts as part of their cultural heritage. But their treaty rights to hunt whales have been tangled in the courts for several years.

The killing was a public relations disaster for the tribe, which had been working with federal authorities to obtain a permit for a legal hunt, and Makah officials rushed to Washington, D.C., shortly after the hunt to assure the government they did not approve.

The federal government removed the gray whale from the endangered species list in 1994. Tribal members legally killed a whale in 1999.

Copyright © 2008 The Seattle Times Company

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