Salmon run’s survival trumps religious rights of Alaska Native fishermen: judge

A defendant wipes away tears after listening to testimony by elder Noah Okoviak. Both were cited after defying an emergency closure last summer. May 20, 2013. (Loren Holmes / Alaska Dispatch)
A defendant wipes away tears after listening to testimony by elder Noah Okoviak. Both were cited after defying an emergency closure last summer. May 20, 2013. (Loren Holmes / Alaska Dispatch)

BETHEL — One by one, Yupik fishermen from along the Kuskokwim River appeared before an Alaska District Court judge here Monday to be judged guilty of violating a state salmon closure nearly a year ago.

What began as a hot protest beneath a warm sun last June had 11 months later, with ice still clinging to the Kusko, become a legalistic ritual in which some decided they no longer wanted to take part.

Fisherman Yago Evan bailed completely. He told the defense attorney trying to make a religious case out of the citations issued against 25 fishermen that he didn’t want to play anymore. No one in court quite knew how to handle that.

Judge Bruce G. Ward finally had his clerk call Evan at home to see what he wanted to do about the case. Evan was frank about his feelings. “It’s just a big waste of time,” the voice transferred into a speakerphone in the court room said, “I’m not going to waste fucking time on that fucking thing.”

A very patient Ward, however, convinced Evan to at least listen in on the phone while Alaska State Trooper Brett Gibbens testified against the fisherman. Gibbens then offered up a story similar to what he’d already repeated many times on the day.

He saw a boat with an illegally long net in the water. He went to investigate. He found illegally large mesh being used. He wrote a citation. End of story.

James Davis, an attorney for the Northern Justice Project, rose to ask Gibbens “the same question I have asked you all day long” — whether the mess of the net had been measured in one of the ways stipulated in state fishing regulations. Gibbens repeated that he had not stretched the mesh with a weight before measuring it. Davis then moved to have the case dismissed, as he had many times before, because the proper procedure had not been followed.

And as Ward had done again and again previously, he ruled against the dismissal, knowing full well that stretching the mesh would only make it bigger and thus make Gibbens’ client even guiltier.

At that point, the judge asked Evan if he wanted to testify.

“What’s going to happen if I testify?” asked the voice from the speaker. “Am I going to have a longer court case?”

Yes, Ward answered, but probably only by a matter of minutes. Then he asked again if Evan wanted to say anything.

“No, I don’t think so,” said the voice from the speaker.

Unhappy with $250 fine

Ward promptly found Evan guilty, and fined him $500 — as he had fined everyone else — with $250 suspended. The latter set Evan off.

“How can I get fined more (than Noah Okoviak),” a suddenly screaming Evan demanded to know. “He only got fined $50. That boat wasn’t even mine. How am I getting an even bigger fine. Fuck!”

And then he hung up the phone.

Word of what had happened to the 67-year-old Okoviak earlier in the day had obviously gotten back to Evan. The old man spent Monday morning on the stand testifying in Yupik, his Native tongue, about how life along the river used to be way before Taco Bell came to visit this remote village and the Subway sandwich came to stay.

It was moving testimony about his deep emotional and spiritual connection to his ancestors and to the living, breathing spirits of the fish that swarm up the Kuskokwim River ever year. The translator started to break down as Okoviak recounted his life along the river and pretty soon the whole courtroom was in tears or close to it.

When Okoviak made his final plea at sentencing, the crowd rose to its feet to support him. He thanked the court system and Alaska State Troopers for giving him a hearing. Then, as with others before, the judge fined Okoviak $500, but obviously moved by the life story of a now-old man out of work, Ward suspended all but $450.

Evan, who’d been a crewman on Okoviak’s boat when a protest fishery began on the Kusko nearly year ago, just couldn’t understand why he wasn’t getting the same deal.

By the time the judge got to him, though, the trials themselves had become little more than a ritualistic legal dance. The fishermen needed to be formally convicted so Davis could appeal their cases to a higher court.

That became necessary after Ward stuck a stake through the heart of the idea that the religious fishing rights of the Yupik Eskimos of far Western Alaska would be argued in his court.

Before a single witness could be called to the stand Monday, the judge ruled that in his reading of the laws the needs of the salmon trump anyone and everyone’s religious rights.

In a carefully crafted, seven-page opinion, Ward held that subsistence fishing might well constitute a religious belief as defined by the Alaska Supreme Court, but added that “the question remains, is there a compelling reason for the limitations placed by the state on the subsistence taking of Chinook salmon?

“The court finds that there is. This finding is based on the testimony of the research biologists who testified at length and in detail that the Chinook salmon run was perilously small. The expressed concern was, ‘is this the year we wipe out the run?'”

Davis, joined by the Alaska chapter of the American Civil Liberties Union (ACLU), had argued that a nearly 35-year-old state Supreme Court decision — Frank v. State — provides religious protection for subsistence fishing. The high court ruled in 1979 that Interior Athabascan Indians had a right to shoot a moose to provide food for traditional funeral potlatches. Davis argued that set a precedent for allowing the harvest of Chinook, or king salmon, by the Yupik as a religious activity.

The judge didn’t see it that way because of differences in how the two resources are managed.

“This is unlike the underlying situation in Frank,” Ward said in a firm, steady voice, reading from his written opinion in a small court room packed with observers and some of about two-dozen defendants awaiting trial on charges of illegal fishing. “The Frank court stated, ‘the state does not urge that an exemption granted to Athabascans needing moose meat for a funeral potlatch will result in so many moose taken as to jeopardize appropriate population levels.’

“However, that is exactly what the state argues, and in the view of this court, has proven in this case. This court finds based on the testimony of the fisheries biologists presented during the evidentiary hearing that the natural consequences of allowing the unfettered taking of Chinook salmon under the religious free exercise exception through subsistence harvest urged by the defendants would result in precisely the opposite of what the Frank court deemed a non-issue — that is the decimation of the species by over fishing.”

Run perilously small

The white judge presented the opinion to two white prosecuting attorneys flanked by a white, civil rights defense attorney with his African-American assistant, in front of an audience almost wholly Yupik. It was an opinion as clearly favoring science over religion as the Scopes Monkey Trail of 1925 at which three-time Democrat candidate for president William Jennings Bryant faced off against noted barrister Clarence Darrow to argue whether Darwin’s theory of evolution or the Christian bible should define for Americans how the world began.

Ward said his decision was “supported by the (salmon) run data, weir data and extensive fisheries expert witnesses. Therefore, this court finds the need to police the Chinook run, to ensure its continuity for future generations of Yupik fishermen and families, overcomes the argued for free-exercise exemption which otherwise would apply.”

The Yupiks packing the courtroom, some of whom doubt the science and would prefer to trust to the wisdom of elders, made not a sound. The attorneys for both the defense and the prosecution were momentarily left wondering what to do next.

Davis rose first to say “thank you for your thoughtful opinion,” and to clarify exactly for everyone what had just happened. Does this mean, Davis asked the judge, that even if the fishermen ticketed for illegal fishing are sincere in their religious beliefs, “they’re going to lose their argument?”

Ward nodded his head.

“This court understands there will be an appeal,” he added, “and frankly I think there should be.”

3-part religious harvest standard

Then, even though every one of the defendants involved here is destined to lose in the end, Ward suggested the trails go forward. There is, he said, the matter of the Frank case with which the court must deal.

Frank set a three-part standard for legal, religious harvest of Alaska resources:

1.) Religion must be involved.

2.) The harvest itself must be “religiously based conduct.”

3.) The person engaged in the harvest must be doing it for religious reasons.

“This court find that the first two parts to the three-part test in Frank have been met,” Ward wrote in his opinion. The third — which he defined as the “individual burden of ‘sincerity’ of belief” — could only be established at trail.

Those trails began shortly after with fisherman Felix Flynn of Bethel testifying that he thought he was fishing legally, but discovered when his monofilament gillnet was checked by an Alaska Wildlife Trooper that he was using an illegally large size mesh that would catch Chinooks commonly called kings and the protected fish, instead of catching smaller and more plentiful chum and sockeye salmon.

Davis and prosecutors then started into the rabbit warren of state fishing regulations with Davis arguing the Alaska Department of Fish and Game’s emergency order restricting mesh size was illegal as written, and assistant District Attorney Chris Carpeneti countering that while a Kuskokwim salmon management plan referred to mesh sizes “no larger than 6 inches,” the state actually had the authority to require smaller mesh sizes to protect king salmon.

When all was said and done, Ward ruled the state had a legitimate case against Flynn, found him guilty and fined him $500 with $250 suspended and put him on probation for year. It was an outcome that would be repeated over and over again throughout the day with sometimes heartbreaking testimony interspersed between.

Davis at one point asked Flynn about how he felt about not being allowed to catch enough kings to meet the needs of his family.

“I felt hurt,” he said, then paused to grab a tissue and wipe his eyes. “That is very painful. I was hurt inside.”

He was not the only one.

Contact Craig Medred at craig(at)

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