Alaska COA Rejects Yup’ik Free Exercise Defense to Criminal Prosecution for Salmon Fishing

Here is the opinion:

Phillip v. State

An excerpt:

In June 2012, the thirteen defendants in this case — all Yup’ik fishermen living a subsistence lifestyle — were charged with violating the Alaska Department of Fish and Game’s emergency orders restricting fishing for king salmon on the Kuskokwim River. The defendants moved for dismissal of the charges, asserting that their fishing for king salmon was religiously based activity, and that they were entitled to a religious exemption from the emergency orders under the free exercise clause of the Alaska Constitution.

Briefs are here.

The Atlantic Article on Climate Change and Yup’ik Fishing


“Subsistence is living from the land,” said Flynn. “It’s what we’ve always done. We go hunt ducks and seals in the ocean in the springtime. Ptarmigan. Salmon. My great-grandfather and grandfather told us we have to be very careful what we catch. God made them for everyone. I was living subsistence even when I was in the military. My whole life. I make a fish camp every year and dry 30, 40 kings. I set a net last summer but there was too much closure. Things have been rough.”

“And how did it feel not to be able to catch enough?” Davis asked him.

“I have a grandchild, 2 years old—” He paused and rubbed his eyes. Several other men in the gallery also began to cry. “My grandson said to me, ‘When we gonna go check the net?’ And I couldn’t say anything.”

Michael Cresswell, a state trooper, leaned over and whispered in my ear: “This is momentous. This is climate change on trial.”

Via J.S.

Briefs in Phillip v. State of Alaska — Yup’ik Fishers Case


Appellants Opening Brief

ACLU Alaska Amicus Brief

AVCP and AFN Amicus Brief

State Brief

Appellants Reply Brief

Victoria Sweet posted the Atlantic Monthly profile of this case here.

“When Global Warming Kills Your God,” 23 Yup’ik Men Defying a Fishing Ban for Their Traditional Beliefs

This well-written article (link) paints a powerful picture about the devastating impact that a warming climate is having on Alaska Natives. Cited is the fact that an estimated 86% of Alaska Native villages will require relocation over the next 50 years because of climate changes.

In addition, the article looks at the case of 23 tribal members who were punished for defying a fishing ban. Briefs available here. Their case will be heard in the Alaska Court of Appeals, possibly sometime this summer. According to the article, “the fishermen’s civil disobedience has been framed as a First Amendment issue: The Yup’ik believe they have an obligation to continue their ancestral traditions.” In an amicus brief, the ACLU stated

A Yup’ik fisherman who is a sincere believer in his religious role as a steward of nature, believes that he must fulfill his prescribed role to maintain this ‘collaborative reciprocity’ between hunter and game. Completely barring him from the salmon fishery thwarts the practice of a real religious belief. Under Yup’ik religious belief, this cycle of interplay between humans and animals helped perpetuate the seasons; without the maintaining of that balance, a new year will not follow the old one.

While the trial judge appeared sympathetic, he still felt the state had sufficient reason for imposing the ban. It will be interesting to see how the court of appeals deals with this defense, particularly under current changing conditions.

There, [in the Court of Appeals] state-appointed judges will grapple with the same question the court faced in 1979, when an indigenous hunter named Carlos Frank was charged with illegally transporting a newly slain moose. Frank argued that he had needed the animal for a religious ceremony. Two lower courts found him guilty, but the Alaska Supreme Court reversed the verdict, calling moose meat “the sacramental equivalent to the wine and wafer in Christianity.”

This, in the end, is what’s at stake for the Yup’ik fishermen. Their villages may be swallowed up by the sea, but the people themselves won’t float away. They’ll relocate en masse or drift into the urban diaspora of Anchorage. But if they stop fishing king salmon, the Yup’ik believe they’ll lose something far more fundamental than their homes.

H/T to TH.

Washington and Oregon Governors Ask for Review of Coal Export Consequences

This week, the governors of Washington and Oregon asked the Obama Administration to review proposed coal export terminals. The Seattle Times article is here and the Huffington Post article is here. The letter linked in the Seattle Times article is here.

An excerpt from the Seattle Times

Western coal producers, saddled with low prices and weak demand in U.S. markets, are eager to send more coal from the Powder River Basin in Montana and Wyoming to Asia. Much of that coal is on federal lands, but some is on tribal, private or state lands.

The proposals include two export terminals in Washington to be in Cherry Point, which is near Bellingham, and in Longview. There are also proposals for terminals in Oregon.

The prospect of using the Pacific Northwest as a launch point for coal exports has triggered intense controversy in both Oregon and Washington.

Seattle Human Rights Commission’s official comments are here. The Commission’s resolution on coal and the impact on Indian tribes is here. (Thanks to C.S.)

Finally, here is a Northwest Public Radio story about the potential effects of the proposed export plans on the Lummi Tribe.

Previous posts are here and here.

Water Pollution Regulations Ignore Native Community Fish Consumption

Huffington Post article is here. An excerpt:

For many communities, the consequences also go beyond just health concerns.

“Traditional families are still very active in the smokehouse. They are still fishing for their primary source of living,” says Jamie Donatuto, an environmental specialist for the Swinomish Indian Tribal Community, in La Conner, Wash. “Fish are not just a source of nutrients, they have cultural and spiritual meaning for these people.”

Donatuto has been working with the Swinomish tribe for more than a decade on the issue. She recently conducted a survey and found that if tribal members had access to as much safe seafood as they wanted, they would consume more than 100 times the state’s estimate.

“In the Pacific Northwest, fish consumption is a way of life. It’s an important cultural hallmark of tribal nations that live here,” adds Elaine Faustman, a professor of environmental and occupational health studies at the University of Washington.

In fact, as she points out, it’s not uncommon to find kids “teething on salmon jerky.”

Leave To Intervene Granted In Kwicksutaineuk/Ah-Kwa-Mish First Nation v. British Columbia

The British Columbia Salmon Farmers Association was granted leave to intervene in an appeal from an order certifying a class action involving the Kwicksutaineuk/Ah-Kwa-Mish First Nation.  Here’s the decision.   Below is an excerpt.

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