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Court case weighs relationship between subsistence and spirituality

By Rhonda McBride 7:23 AM August 27, 2014
ANCHORAGE –

The Alaska Court of Appeals in Downtown Anchorage was crowded with Alaska Native leaders Tuesday, including the president of the Alaska Federation of Natives, Julie Kitka, who said it was a shame some of the Kuskokwim River fishermen convicted of illegal fishing weren’t sitting in the benches alongside her, so the judges could see for themselves that they are people of limited means.

Instead it was an arena dominated by two attorneys — Jim Davis, a civil rights lawyer who works for the Northern Justice Project and Laura Fox, an assistant attorney general.

Davis is fighting to overturn the convictions of 13 Yup’ik fishermen who took part in a protest — or what some called a “survival” fishery — in June 2012.

The 13 are the holdouts from the approximately 60 fishermen who were originally cited. Many pleaded guilty and had their fines reduced.

An emotional cell phone video from Akiak documented one of the protest fisheries. Voices can be heard telling the officers the fish in their boats were intended to be given to elders.

“We just remember very closely what was going on that summer on that,” Kitka said. “We just thought it was unfair that the system couldn’t adapt to it.”

But like the following two seasons, in 2012 fishery managers faced some difficult choices; a failed king salmon run and a need to make sure enough salmon returned to their spawning grounds upriver. Escapement goals were not met in 2012, nor the following year.

The emergency restrictions, including a ban on king salmon fishing, were unprecedented — but fishery managers said they were necessary to protect the future of the run.

The state’s attorney told the court there were two important reasons to let the convictions stand.

Fox said it’s important to protect the state’s authority to manage fisheries, while at the same time uphold the public trust.

But the fishermen’s defense attorney argued the state had failed to consider Yup’ik spirituality before imposing harsh restrictions.

Davis also said civil disobedience was sparked in part by poor communication and the state’s lack of flexibility.

Davis told the judges it’s a long-held belief in the Yup’ik culture that the Universe, or God, gets angry when the fish are running and people waste an opportunity to catch them.

He also argued that there are protections for the Yup’ik fishermen in a 1979 Alaska Supreme Court ruling, Frank vs. State, in which a Minto man was charged with taking a moose out of season for a funeral potlatch. The court sided with Carlos Frank, who claimed he was exercising his constitutionally guaranteed right to practice his religion.

The judges raised many questions about whether religious rights were a factor in the case of the Kuskokwim  fishermen, who chose civil disobedience to defend their rights. They pointed out there was nothing in the record prior to the protest fishing about religious freedoms being exercised.

Judge David Mannheimer wanted to know how many people would be able to go out fishing and how many fish they would be entitled to take, if they were given a religious exemption. He said the Frank case was only about one moose and did not have the potential to decimate an entire population.

“Yup’ik people haven’t extinguished any species they’ve been stewards of for thousands of years,” Davis said.

“Will granting this exemption hurt the state’s compelling interest?” asked Judge Marjorie Allard. “That’s really the test.”

The state’s attorney argued the exemption clearly wasn’t in the state’s interest — that it could lead to uncontrolled fishing, which might threaten future salmon returns.

“It doesn’t make any sense to say the criminal defendant can escape liability by showing the state could have given him an inch,” Fox said.

Davis countered by pointing out that three days after the illegal fishing, the state allowed an opening on the Kuskokwim River in which 20,000 kings were caught.

“The state’s position in this case, ‘We couldn’t let your guys, your Yup’ik fishers catch any because there were none to be caught,’” said Davis. “Well how were the 20,000 caught on June 23?”

The state said fishery managers were trying to give fishermen opportunity to catch other species of salmon, but their king projections were off. They had expected fewer of them in the river.

Allard asked if there needed to be a formal process to provide for a religious exemption.

“The conduct is here,” she said. “Because there is no such mechanism in the context of fishing.”

It may be six months or more before the appeals court issues its ruling on the case. But it appears to have already had an impact on this past season.

In an unusual move, the federal government stepped in to manage the subsistence king salmon fishery in waters adjacent to the Yukon Delta National Wildlife refuge — between Aniak and the mouth of the Kuskokwim, about a 200 mile stretch of river. It used authority under the Alaska National Interest Lands Conservation Act, a law Congress passed in 1980.

Napaskiak, a small community below Bethel, requested the special action, which went into effect May 20 and lasted about two months. Tribal leaders felt the federal government would be more flexible.

Federal fishery managers, who also worked in cooperation with state managers, allowed a limited king harvest to federally qualified subsistence users; those who live along the river with a history of traditional and customary use.

Many tribal leaders were disappointed in the small numbers of kings that were allocated to each community, some as few as 30.  But others were glad there was at least some opportunity to maintain their spiritual and cultural ties to the fish.

Most abided by fishing restrictions and used smaller gauge nets to avoid catching kings.

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