Yup’ik Fishermen Case Likely Headed for Alaska Supreme Court, Federal Court

The Alaska Court of Appeals has affirmed a lower court’s decision that Yup’ik fishermen who fished for King salmon during a state closure should be convicted. The decision was issued Friday.

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The Attorney for the Yup’ik Fishermen is James Davis with the Northern Justice Project. He says the court asked the wrong question.

Salmon strips drying on a rack in Bethel, 2015. Photo by Daysha Eaton
Salmon strips drying on a rack in Bethel, 2015. Photo by Daysha Eaton

“The court asked ‘should the Yup’ik fishers be allowed to be allowed to catch any fish when there are not fish to be caught?’ and therefore got the wrong answer which is, ‘no they shouldn’t be allowed to catch any fish,” said Davis.

In 2012, dozens of Yup’ik Alaska Native fishermen living a subsistence lifestyle were charged with violating the Alaska Department of Fish and Game’s emergency orders when they fished for king salmon on the Kuskokwim River. Thirteen defendants are appealing.

The defendants moved for dismissal of the charges, asserting that their fishing for king salmon was a religious activity, and that they were entitled to a religious exemption from the emergency orders under the free exercise clause of the Alaska Constitution.

Davis says there are two right questions he asked the court to consider and they ignored:

“If there were no king salmon to be caught by the Yup’ik fishers, why did the state open up the fishery to allow 20,000 king salmon to be caught the very next week after citing the Yup’ik fishers for catching any king salmon? And the second question which the court ignored as if it hadn’t been asked is, if there were declining runs of  king salmon on the river over the last few years, why did the state continually vote for high salmon bi-catch by the pollock fleet?, which the court of appeals effectively ignored,” said Davis.

Davis says he plans to appeal the case to the Alaska Supreme Court. Myron Naneng is President of the Association of Village Council Presidents, the regional tribal non-profit. He says their organization is pleased the case will be appealed but they are also considering taking the case to federal court.

“We should have gone to the federal court in the first place because the feds did not do their responsibility under title 8 of ANILCA section 807 where they’re required to give priority to rural Alaska and they’re supposed to have federal management first instead of requiring the state of Alaska to issue citations like they did in 2012. That’s something that we’re gong to be looking into,” said Naneng.

Federal managers took over the Chinook fishery in 2014 and have requests to take over management again this season. Naneng cites a case from the 1970’s upon which Attorney Davis’s case for the fishermen was built: Frank versus the State of Alaska, 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.

“When there’s a death in families, there’s a law in the state of Alaska that currently exists where families can go harvest a moose for religious purposes. And we feel that being able to harvest salmon for food as well as for the well being of, to feed our families that’s part of our life and has been our livelihood,” said Naneng.

Naneng and Davis reason that the Yup’ik Alaska Native fishermen’s spiritual connection to the salmon as their primary food source, should be reason enough for the exemption.
Laura Fox is the Assistant Attorney General with the state who argued the case before the Court of Appeals. She says the decision is sound.

“It will allow the state to continue to protect threatened fisheries by enforcing fishing restrictions when necessary, when there’s a shortage like there was on the Kuskokwim in 2012,” said Fox.

The District Court said the state’s responsibility to protect the declining species of fish outweighed the men’s claim of religious rights. The Court of Appeals decision affirms the lower court’s decision.

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Daysha Eaton is the News Director at KBBI in Homer. Daysha Eaton holds a B.A. from Evergreen State College, and a M.A. from the University of Southern California. Daysha got her start in radio at Seattle public radio stations, KPLU and KUOW. Before coming to KBBI, she was the News Director at KYUK in Bethel. She has also worked as the Southcentral Reporter for KSKA in Anchorage. Daysha's work has appeared on NPR's "Morning Edition" and "All Things Considered", PRI's "The World" and "National Native News". She's happy to take assignments, and to get news tips, which are best sent via email. Daysha became a journalist because she believes in the power of storytelling. Stories connect us and they help us make sense of our world. They shed light on injustice and they comfort us in troubled times. She got into public broadcasting because it seems to fulfill the intention of the 4th Estate and to most effectively apply the freedom of the press granted to us through the Constitution. She feels that public radio has a special way of moving people emotionally through sound, taking them to remote places, introducing them to people they would not otherwise meet and compelling them to think about issues they might ordinarily overlook.