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State questions religious protection for Native fishermen

Posted: January 17, 2013 - 1:10am

ANCHORAGE — State prosecutors are disputing religious protection claims by Alaska Native fishermen cited for illegal fishing who say bans on their subsistence lifestyle violate their spiritual freedoms.

The fishermen “raised an issue without adequately briefing it,” the state said in a court filing this week.

Prosecutors were responding to a motion seeking to consolidate the April trials of 21 fishermen to allow two specialists to testify as pro bono experts on Yup’ik Eskimo culture and spiritual matters.

The fishermen were among dozens of Alaska Natives cited last year during a weak king salmon run.

James J. Davis, Jr., the attorney for the fishermen heading for trial, said the ancient tradition of subsistence fishing is considered a sacred activity by many. But the issue ultimately may have to be decided by a higher court, possibly the Alaska Supreme Court, he said Wednesday.

“I’m confident we have a solid argument,” he said. “I’m confident, even if we don’t win in the trial court.”

But first the lower court will have to do two things, Davis said.

It will have to hear from each fisherman and learn how they feel. If someone says the spiritual aspect doesn’t apply to them, that they wanted to catch a king for a barbecue, then the religious argument probably wouldn’t hold in that one case, even if the overall principal is sound. The court also will have to hear what his experts say about Yup’ik culture and religion.

In a November filing, Davis said the experts would testify how and why the Alaska and U.S. constitutions, as well as the federal Religious Freedom Restoration Act of 1993, “protect the defendants’ right to engage in activities for which they have been criminally charged because these activities are related to defendants’ ultimate ideas, metaphysical beliefs and moral and ethical systems.”

Prosecutors said the state cases are not subject to the federal religious law and defendants failed to support their arguments of First Amendment protections.

“They do not cite any cases which would support their position, leaving the state and the court to guess at their argument,” prosecutors wrote. “In general, however, neutral laws — those not targeted at religious practices — which incidentally burden religious activities do not violate the First Amendment.”

Prosecutors also said there is no relevance to the fishermen’s case in a cited state case that involved a limited exception and allowed Athabascan hunters to take a moose out of season for a traditional funeral potlatch. The fishermen are not seeking the same kind of leeway, but want to invalidate any law regulating fishing for salmon in the Kuskokwim River.

Davis said that’s not true. The fishermen just want to prevent a prolonged ban on fishing to retain contact with their tradition, even if it means short subsistence fisheries.

“They want to conserve the species just as much as everyone, maybe even more so,” he said.

In October, three other fishermen tried separately in Bethel were found guilty of violating strict fishing restrictions last summer and were each were fined $250.

In all, 60 fishermen from western Alaska originally faced misdemeanor charges of using restricted gear or fishing in closed sections of the Kuskokwim River in western Alaska during the summer king run.

Most charges were later reduced to minor violations, and a little more than half pleaded guilty to the reduced counts and were ordered to pay $250 fines.

State and federal officials have said ensuring sustainability for future runs is always the overriding priority, and this year’s king numbers were severely low. The poor runs led to federal disaster declarations for the Yukon-Kuskokwim area as well as Cook Inlet.

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