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Judge to decide Alaska Native religious defense in fishing trials

With salmon beginning their annual migration back from the sea into Alaska waterways, nearly two dozen fisherman from Western Alaska return to a Bethel courtroom Monday, still caught up in a legal net that entangled them last summer.

The Alaska Native fisherman say they had a religious right to be on the water with their nets, and a judge must now decide whether they can use that argument as a defense at trial. This new posture has been backed by passionate supporters and become increasingly politicized as Alaska Natives continue to define their relationship with the state of Alaska.

In summer 2012, the fishermen defied river closures enacted by state officials to conserve a poor run of Chinook, or king salmon on the Kuskokwim River.

King salmon, one of Alaska's most-prized fish, have been declining in rivers statewide for several years, prompting fishery managers to balance conservation of the run for future generations against the needs of people who must have food today. Amid a dismal start to the 2012 fishing season, the Alaska Department of Fish and Game enacted a series of closures on the Kuskokwim that affected village fishermen -- traditionally the last group of fisherman to lose access when restrictions are deemed necessary.

Frustrated at thwarted fishing opportunities, several communities revolted in what came to be known as a "fish in" -- an act of civil disobedience that, with the blessing of village leaders, sent fishermen onto the river. State and federal law enforcement agents heard about the fish-in ahead of time, and on the day of the protest, they patrolled the river, seizing nets and salmon while also writing tickets.

By fall, the fishermen were headed for trial in state court. The first to test their luck lost the gamble, but the inaugural wave of defendants hadn't attempted to raise the religious freedom aspect of their disobedience.

Now a judge must decide if the tradition that has sustained generations of Native villagers -- catching the large, nutritious early-run fish on which much of their culture centers -- should be considered a protected spiritual pursuit.

Some fishermen settle

The tension over the river closure has lingered well beyond last summer's fishing season. It became a focal point for political activism and rallies related to food security, full recognition of Native hunting and fishing rights, and Native sovereignty overall.

In late 2012, many of the Kuskokwim fishermen had settled their cases. Several others, though, chose to fight the charges. But when the initial proceedings didn't go their way -- a judge essentially told them he didn't buy their excuses -- another group that hadn't yet gone to trial came up with a new tactic.

With a civil rights attorney from Anchorage leading the charge, the group sought permission from the court to argue a new defense -- the free exercise of religion. Fishing for king salmon, the argument goes, is inextricably linked to the spiritual core of the Yupik people who inhabit the region.

Attorney James Davis is with the Northern Justice Project and represents the fishermen. He's argued that the state could have turned to other management techniques before taking the extreme measure of telling villagers to keep their nets dry as king salmon swam by.

Trials for the 22 remaining defendants began in April, with the judge first taking up the matter of whether they will be allowed to raise the religious defense. Before each fisherman could testify about his individual case, the defense and state wrangled over whether the religious freedom defense was applicable.

The defense used an anthropologist and other experts, including a Yupik elder, to explain the fundamental spiritual connection between fishing and the Yupik people. The state called river managers to the stand to explain the difficult predicament they were in and why they considered the river closures essential.

Were other options available?

At issue for the defense is whether the state could have pursued other conservation measures before resorting to restricting the fishermen such as:

• Curtailing a small, in-river commercial fishery.

• Finding a way to limit salmon bycatch by commercial fisherman pursuing pollock and other species in the open sea. The challenge is that the state doesn't regulate bycatch -- the Feds do. But the defendants argue the state could have been more persuasive with its federal counterparts.

• More reasonably forecasting the amount of fish needed to get to spawning grounds to ensure future runs; if fewer fish are needed to preserve the run, then in theory more should be available to catch.

Before the cases move forward, Magistrate Bruce Ward of Bethel, who is presiding, will decide whether the religious defense applies. He had hoped to announce a decision before Monday, when the trials are scheduled to resume, but by the end of Friday had not done so.

A decision in favor of the defendants, one that allows them to raise the religious-freedom defense, will move the cases into a phase where the sincerity of each individual fisherman is tested. The defendants will get a chance to have their say on the stand, and the judge must decide if he believes they were motivated to defy the closure by a compulsion to go fishing as part of a religious ritual or tradition.

If the judge prohibits use of the religious freedom defense, the cases may move along much quicker. The trials from last fall demonstrated that the judge was not sympathetic to other defenses presented by the men.

Those defenses included the fishermen either weren't aware of or didn't fully understand the rules that were imposed, rules that seemed to change frequently as river managers attempted to adapt river regulations to the most recent information about a weak salmon run.

Contact Jill Burke at jill(at)alaskadispatch.com

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