A judge dismissed charges against a Makah tribal police officer accused of roughing up anti-whaling protesters at Neah Bay in November 1998, saying the matter falls within federal jurisdiction. Eric Svenson fired after a stint as police chief was a patrol officer when activists mounted a campaign against the Makah seeking to resurrect their whaling tradition. The tribe killed its first gray whale in 70 years last spring. Because Svenson is not a tribal member, county prosecutors argued the state could pursue charges against him. "There's a difference between charging a non-Indian and charging a tribal officer who's a non-Indian ?,'' Svenson's criminal lawyer, Allen Ressler of Seattle. Both sides agree it's the first time a court attempted to address whether the state can prosecute non-Indian employees for acts committed on reservation land. "Theoretically, this could end up in the U.S. Supreme Court,'' Chris Melly, Clallam County's chief civil deputy prosecutor, said. Svenson was fired as police chief by the Tribal Council after complaints about his conduct, which included jailing a pair of young children for an hour for trespassing. Lt. Bill Mahone has been named acting chief.