BETHEL, Alaska — A Bethel judge has ruled against some of nearly two dozen Yup’ik Eskimo fishermen cited for illegally fishing king salmon in the Kuskokwim River during a poor run last year.
Several of the fishermen were found guilty Monday after their trials by judge resumed. Magistrate Bruce Ward adjourned the cases last month until he could determine whether the fishermen have a spiritual right to fish for king salmon when restrictions are in place, as they claim.
Ward found the state’s need to restrict kings supersedes the fishermen’s religious rights, according to KYUK.
“The court wants all parties to know that this was a very difficult decision to make,” Ward said. “This was not easy.”
Fishermen are being fined $250 and placed on probation for a year. The trials for the remaining fishermen continue.
The trials began in April with specialists on Yup’ik culture testifying for the fishermen, who say bans on their subsistence lifestyle violate their religious freedoms.
The fishermen’s defense is based on a free exercise clause of the Alaska Constitution. Defendants argued that subsistence fishing is a spiritual practice.
Ward said he did a lot of research, including reviewing the Frank vs. the State case decided by the Alaska Supreme Court in 1979. The case shows that the free exercise clause may work when religion is involved, the conduct is religiously based and the person is sincere.
Ward said the fishermen met the first two requirements, and that the sincerity question would be addressed in individual trials.
The judge, however, decided that there is a compelling need to restrict the Kuskokwim king run based on recent data. The Frank case was about taking one moose for a ceremonial potlatch, which wouldn’t have affected the population of moose. In the fishermen’s case, harvesting kings could have had an adverse effect.
“Therefore, this court finds the need to police the Chinook run to ensure its continuity for future generations of Yup’ik fishermen and families overcomes the argued-for free exercise exemption which would otherwise apply,” Ward said.
Ward said the sincerity of the fishermen won’t sway his guilty verdicts. That held true in the first trials against fishermen Felix Flynn and Peter Heinz, who were among those found guilty Monday.
On the stand, Flynn wiped away tears and said that it had been hard answering questions from his young grandson.
“He asked me, ‘When are we going to check the net?”’ Flynn said. “I couldn’t say nothing … because we didn’t have no net out there … because he witnessed me when we set the net. And that’s really painful.”
The fishermen’s attorney, James J. Davis Jr., plans to appeal.
Davis maintains 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 press for action against the commercial Pollock trawlers that catch thousands of kings each year as bycatch off Alaska’s coast.
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.
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