Three judges with the Alaska Court of appeals are now weighing whether Yup’ik Fishermen, who targeted Chinook or king Salmon during a closure on the Kuskokwim River in 2012, were wrongfully convicted. Their attorney based their defense on a 1970s moose-hunting case. The fishermen say state fisheries managers interfered with their religious rights and they want new regulations to insure it won’t happen again.
Attorney James Davis with The Northern Justice Project, an Anchorage-based private civil rights law firm, represented the fishermen. He said that the state should have tried to accommodate the fishermen’s religious beliefs and that the state of Alaska had a duty under the free exercise clause to accommodate the Yupik fishermen’s spiritual practices.
The precedent Davis cited was Frank versus the state a case from the 70s in which a judge ruled an Athabascan man from the Minto area could take moose out of season for a funeral potlatch, on religious grounds.
One judge hearing the appeal, asked if Yup’ik people were consulted through the advisory working group. Davis said the working group did include some Yup’ik members, who recommended managers open the subsistence fishery, but the state did not listen to them.
“And you’ll see that whatever the working group says, if the state doesn’t like it the state says, ‘never mind we’re gonna keep it closed for another five days,’ so it’s another one of those advisory committees that the state doesn’t have to abide by,” said Davis.
Due to a reduced run of king salmon the state closed the lower Kuskokwim River subsistence fishery in June 2012. Davis argued that traditional Yup’ik fishermen believe their God, ‘Ellam Yua’, will be offended if they do not pursue kings and that fewer fish will return.
Dozens of people fished in defiance of the state closure. Many were given fines and some nets were confiscated. A few days later the state opened the area to fishing for other species of salmon, which allowed about 20-thousand king salmon to be caught as by-catch.
The trial court agreed that king salmon fishing is integral to the Yup’ik religion but convicted the fishermen and decided that Alaska’s need to protect king salmon overrode the fishermen’s religious rights. Thirteen decided to pursue an appeal.
Attorney Laura Fox with the State Attorney General’s Office argued that issuing citations for fishing during an ‘emergency closure’ was necessary to protect king Salmon.
Fox also argued the Minto moose case shouldn’t apply because subsistence fishing would result in unfettered taking of fish, which would prevent the state from managing the fishery. Fox addressed the decision to allow an opening.
“We have to be looking at this from the perspective of an in-season manger, who’s – you know, not with 20/20 hindsight about exactly, what would have been in hindsight the optimal way to manage the fishery, which might have been not to open it to six-inch gear, which wouldn’t have been helpful to these defendants or anybody else who needed to meet their food needs in 2012, but maybe in hindsight the state shouldn’t have allowed that opening,” said Fox.
Fox said there is not mechanism in state law for making a religious exemption for Natives to subsistence fish. Davis said that’s what the Yup’ik fishermen are asking for. Alaska Federation of Natives president, Julie Kitka, attended the hearing. She said that the state needs to begin taking other points of view into consideration.
“The pivotal role that this could play would be for the state to finally realize that you have to respect Native people and their cultural beliefs … and it is okay to adjust the regulatory system to accommodate that doesn’t have to destroy and turn the regulatory systems upside down, but that you can accommodate. That’s I think the pivotal issue of this case and other cases like this is that it’s okay to have flexibility in your system,” said Kitka.
This summer federal managers took over management of the Lower Kuskokwim River fishery at the request of tribes. Federal managers did allow a small cultural and social harvest of king salmon. The ACLU, the Association of Village Council Presidents and the Alaska Federation of Natives have filed amicus briefs in the case. A panel of three judges will weigh the arguments in the case of David Phillip v. the State of Alaska and issue a decision, likely sometime later this year or early next year.