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Attorney: Fishermen should get first go at kings

Posted: February 13, 2013 - 1:04am

ANCHORAGE — An attorney for Alaska Natives cited for illegal fishing is renewing his religious protection defense, saying the state could conserve king salmon runs on the Kuskokwim River while granting Yup’ik Eskimos a subsistence fishing priority to accommodate their long-held spiritual views.

James J. Davis Jr. says in a court brief that Yup’ik people believe animals have “yua” — or spirits — offered to worthy hunters. He says fishing bans could cause a scarcity of kings.

“If Yupik people do not fish for King Salmon, the King Salmon spirit will be offended and it will not return to the river,” Davis wrote.

The brief filed Monday in Bethel elaborates on a November filing that claimed religious protection rights for the 21 fishermen, whose trials are set to begin April 15. In the November filing, Davis said two specialists on Yup’ik culture would testify how and why defendants’ beliefs are protected by the Alaska and U.S. constitutions, as well as the federal Religious Freedom Restoration Act of 1993.

State prosecutors did not immediately respond to a request for comment. In a January court filling, however, they disputed the religious protection claims, saying the state cases are not subject to the federal religious law. Prosecutors also said the fishermen failed to support their arguments of First Amendment protections under the U.S. Constitution.

“They do not cite any cases which would support their position, leaving the state and the court to guess at their argument,” prosecutors wrote.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.”

Davis said Tuesday that he now intends to focus on the state’s constitutional protections, as noted in Monday’s filing.

Three other fishermen tried separately in October were found guilty of violating strict fishing restrictions for kings during a weak run last summer. The men were each fined $250.

In his court brief, Davis said the state can protect king runs and still allow Yup’ik fishermen a subsistence priority over non-Yup’ik residents, even for a short fishery. He said the state also could take action against the commercial Pollock trawlers that catch thousands of kings each year as bycatch off Alaska’s coast.

“The defendants concede there’s a compelling interest in protecting king salmon, but the bottom line is, is whenever there’s a compelling interest — like a shortage in moose or shortage in salmon — the state has to do everything it can to reduce other uses before infringing on a religiously protected use,” Davis told The Associated Press. “What’s clear in this case, the state hasn’t done that.”

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

Most charges were later reduced to minor violations. Many of the fishermen 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 the greater priority, and last year’s king numbers were severely low. The dismal runs led to federal disaster declarations for the Yukon-Kuskokwim area and Cook Inlet.

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