When is Fishing a Crime?
Photo: National Geographic
“If I got the means to do it, I will do it,” Phillip said.
“Even if you are breaking the law?” asked his lawyer, James Davis Jr.
“Well, if it comes down to feeding my family, yes,” Phillip answered.
A radio report from KYUK in Bethel made me pull over the Subaru this week. I was listening to the story of Bethel fishermen being prosecuted by the state of Alaska for subsistence fishing during a state-ordered closure.
This was Les Misérables, Alaskanized. Last summer these Native fishermen defied a fishery closure to catch salmon to feed their families. The Yup’ik believe it’s their duty to harvest the fish, that salmon (and all animals) present themselves to the people, and will be offended if they are rejected. It’s a religious philosophy centered on Ellam Yua, the spirit of the universe.
Translators were needed for some testimony, but the men’s defense boiled down to freedom of religion. It wasn’t their words about the value of subsistence that struck me as much as it was the emotion in their voices. They were defending thousands of years of life — a really tough life in a place a long way from Costco.
The judge agreed that the men had a religious connection to the fish, but found them guilty because the state’s interest was more important. They were fined and sentenced to probation. They are appealing.
The state has pushed this case. God knows how much time and money has been spent to prosecute a couple dozen rural Alaskans trying to feed their families. This is a priority for law enforcement?
The decision to put the burden of poor salmon returns on the backs of susbsistence users seems misplaced, to put it mildly.
Now, don’t get me wrong, there are real fish pirates in Alaska. We’ve even caught one or two.
For example, Sen. Lisa Murkowski kept fish rustler Arne Fuglvog on the job — helping make federal fish policy — even after he pleaded guilty. She defended that decision by saying he was innocent until proven guilty. I’m not a lawyer like her, but it seems to me that once someone pleads guilty, we can stop presuming their innocence.
So Fuglvog was fined and did some time in prison. He got out and started a business. Doing what, you ask. Making license plates or running a laundry? No, he’s a lobbyist for some big Seattle-based fishing companies. (Note that Arne reversed the usual progression from lobbyist to inmate.)
Earlier this month, the National Oceanic and Atmospheric Administration’s enforcement office charged American Seafoods, a Seattle-based operator of catcher/processors, with fixing the scales on which they weighed fish.
Last year they were issued a Notice of Violation and Assessment for the same thing. The penalty? It may run about $1.3 million — considerably less than they made by cheating.
In the meantime, Cora Campbell, our commissioner of Fish and Game, nods and smiles and “what-me-worries?” about the 60,000 king salmon “accidentally” caught in the Bering Sea — 60,000 king salmon, folks, not 60,000 pounds of king salmon.
Think about that. The traditional Alaska subsistence take of Yukon kings is about 50,000 fish. Corporations are allowed to waste more kings than that. But we prosecute First Alaskans for trying to put them on the dinner table.
In an attempt to make the waste seem benevolent, Bering Sea processors passed on almost half a million pounds of the fish to food banks in Washington.
The bycatch bypassed Alaskans. So maybe you’re saying to yourself, “Hey, just give the bycatch salmon to the folks on the river and it’s all good!”
But that won’t fill the need described by the fishermen on trial in Bethel. It’s not just about food, it’s about purpose and family and connection to the land.
The state sees the salmon as “a resource” to be “managed” and sold. First Alaskans see salmon as one reason they’ve been able to exist here. Salmon may not have a special place in my religion, but that doesn’t mean they aren’t spiritually important for others.
Subsistence fishermen shouldn’t be prosecuted for gathering food that corporations are allowed to waste
In Luke 24:40-43 the resurrected Jesus eats a piece of grilled fish.
In John 21:9-14 the resurrected Jesus serves the disciples bread and fish grilled over a charcoal fire.
Okay, not salmon. Fish from the Sea of Galilee. But grilled fish is indisputably the preferred food of the resurrected Jesus. The religious connection with fishing in the Yupik tradition and in my tradition are not really very different.
As far as I’m concerned Indigenous (and, I suppose, non-indigenous) Alaskans and Canadians who live in rural areas should have primary claim to harvest of fish and game. However, there is one management goal that needs to trump subsistence harvest, and that management goal is ensuring that adequate populations are allowed to successfully spawn.
If somebody wants to protest policy by being arrested for fishing for Kings, that’s a valid protest. But, if somebody simply wants to harvest critical spawners for their dinner table, that’s unacceptable, no matter what their religious beliefs are.
I’m pretty hardline on this. Fisheries have to be managed, and even subsistence users need to act in a way that preserves the resource.
This was a willful and important act of disobedience . I applaud these men and while it has caused them much pain, perhaps we can now have some conversations we need to have in this state.
Perhaps.
Fish management here is more complex than many know. Alaska Native subsistence has not been dealt with properly at any level and has no voice in parity at the larger table really, ANILCA be damned.
The problems with federal management of the EEZ, state management of state waters and waterways, US management of federal river sections, the goods and bads of LE, IFQ, and the like, management of transboundary rivers…
We all need to know more and I personally would like to see a revamping of federal fishing mgt of the EEZ as per the problems cited here :
http://www.aae.wisc.edu/dbromley/pdfs/fisheriesifq.pdf
If you can’t choke the whole thing down, at least take a speed read through.
I took that speed read. The issue is so complex, and the rules seem arbitrary at best and profit uber alles at worst. I am so tired of the lip service paid to First Americans, while laws always give them the shaft. Maybe, as you say, this can start a much-needed conversation.
I’m glad you did Zyx! The fisheries policies Mr Bromley skewers there are the underpinnings of current Federal policies and laws in federal waters off the coast of Alaska in the form of the Sustainable Fisheries Act. Historical participation was/is the basis of quota allocation so the “biggies” of Outside harvesters and processors have scooped up most quota. With the view of quota being “property” it seems to be hardening into ever larger factory type fishing groups. The CDQ quota, a good idea gone astray, was an attempt to allow Native peoples who were historically shut out of commercial fisheries on the Bering Sea a chance to benefit economically from this program way of divvying up allowable catch. It is a mess and could be argued ( and is) that it is now a vector point for a clash of values as regards subsistence and commercial/corporate ways of life.
All this before one even gets to a discussion of state fishing law and policies !!!
THAT is messy, messy as regards subsistence .
http://www.alaskool.org/projects/subsistence/timeline/default.htm
An all too brief , for the complexities involved, history but useful nonetheless.
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The view here stated by now-gone Rep Ogan is STILL very, very common, though time, court rulings ,and new federal law affecting Federal lands, and the like have shown him wrong :
(from the link to the Alaska Native Claims Settlement Act in the timeline)
Scott Ogan, Representative in the Alaska State Legislature: This act paid nearly one billion dollars and gave millions of acres of land to the Native People of Alaska as a full and final settlement. This act is similar to a treaty, therefore taking precedence over any previous or consequent laws of Congress. “Section 4 of the Act, which was a contract or settlement between the Native people of Alaska and the State and Federal governments, said that by accepting the settlement, all claims of the Native people to special hunting and fishing rights were forever extinguished! Section 4 (b) of the Act states that: ‘All aboriginal titles, if any, and claims of aboriginal title in Alaska based on use and occupancy, including submerged land underneath all water areas, both inland and offshore, and including any aboriginal hunting and fishing rights that may exist, are hereby extinguished.'”
This is an uphill battle and has been for a long, long time. The State of Alaska has a very split-personality as regards dealing with Native issues. And that is the nice way to put it…
The so-called owner-state dealie makes (and refuses to change ) no provision for first peoples – we need to be careful when we invoke that notion.
Also , too- while there are plenty of points of intersection where the State and Fed work together on fisheries policies, they also work in completely partitioned ways that clash too.
The Fed , within the quota setup, is even partitioned from pieces of itself.
It is a mess, mess, mess.
I don’t need to school most of the people on here, but it is good to remember that Alaska’s fight for statehood was primarily driven by the desire to control our own fisheries and eliminate the fish traps that were decimating the runs in SE. Fishing was controlled by outside interests and local rights to fish as a food source were threatened. That is why we are an ‘owner state’. Unfortunately we are an owner state that is now governed by industry-owned politicians and not by Alaskans.
This trial, the struggle of these people, is proof that we need to be vigilant in vetting our elected officials. We need to elect only those who would protect our resources from damage by outside interests.
No one can argue that the bycatch is a tremendous waste of resources and a big concern when the numbers of king salmon are so low that it does take fish away from subsistence fishers and reduces the numbers that would have returned to the spawning grounds.
But as far as not allowing people to put food on the table, the closure was principally for king salmon…that point needs to be made clear. Other fish species (i.e, other salmon and sheefish) are available and many fishers in the middle Kuskokwim, myself included, do catch more of the other species (the sheefish are available before the kings enter the river).
Sure giving up a few days of fishing is an inconvenience, but it’s to allow more kings to reach the spawning grounds. I’ve heard one fisherman Several of the elders I’ve talked to have said that they never targeted kings, they went after what was there.
I’m a subsistence fisherman but I’m also a fish biologist. The king salmon populations across the state have experienced a substantial downturn. The Kuskokwim has seen some of the lowest escapements on record the past three years…but apparently people don’t believe the data. In times like these everyone must do their part to conserve so that future generations will have the opportunity to harvest what they need.
“The Kuskokwim has seen some of the lowest escapements on record the past three years…but apparently people don’t believe the data.”
Some people do not believe the data but many, many feel powerless to affect the political/governmental process , State and Federal , which has , so far, been largely unresponsive to their concerns about whether and how much Chinook bycatch in Federally managed EEZ trawl fisheries affects these poor returns. The NPFMC has been very, very slow to deal with this, though an 4.8.13 staff task memo shows some promise.
As an act of willful civil disobedience, these fishermen must accept that they broke important law but it is also important to note that at present the State does not even entertain notions that bycatch might contribute to the problem publically.
What is causing low returns of Chinook salmon in Alaska?
http://www.adfg.alaska.gov/index.cfm?adfg=hottopics.federalchinookdisaster
If we learn bycatch is a negligible contributor to failed returns, fine. However, it is legitimate to expect our governmental fisheries management bodies to address the issue.
” In times like these everyone must do their part to conserve so that future generations will have the opportunity to harvest what they need. ”
Most agree with you but many, many want to see more work done to understand the decline of returns.
The State must do its part as well. And the Fed. They are part of the “everyone”.
I did not think indigenous peoples actually considered themselves owners of their lands and resources. I thought it was more like they belonged to the land and were stewards of the resources to ensure sustenance for future generations. Maybe trustees of the natural world would work better.
Mike…With respect to our indigenous claim to Alaska, there are two paradigms that needs to be understood and considered. One is, our claim to Alaska lands under the “Aboriginal Title” law supposedly adopted by the Russians when they occupied less than 10-acres of coastal Alaska from 1741 through 1867, when Russia sold “Alaska” to the United States. The second has to do with the United Nations precept of “Absolute Title”. The Aboriginal Title law required the “use and occupancy” of the lands by our indigenous people, which, by the way, encompassed the entire 375,000,000 acres that Alaska is, plus parts of Canada. The U.N.’s precept of “Absolute Title” provides for land ownership by indigenous people, with no strings attached, and lands to be owned in “fee simple title”. This being the case, and with the support of the actual use and occupancy of ALL of Alaska, Alaska’s indigenous people owned the entire landscape that is Alaska. Under the Alaska Native Claims Settlement Act of 1971 (ANCSA), people retained title to 44,000,000 acres of the 375,000,000 acres, meaning that we have lost 331,000,000 acres in that Settlement!
Thanks for the clarification.
mikey- I think part of your question might better be answered here :
http://www.alaskool.org/projects/ancsa/WLH/WLH66-All-BigType.pdf
Mr Hensley was a prime mover in the passage of ANCSA. Much of what is here sets the scene of post-contact relations and how and where Native peoples have landed and responded to the challenges they faced and still face . Please remember there are multiple cultural groupings of Alaska Natives, some peoples were more fixed, others more nomadic pre-contact.
I am anti- ANCSA as the bulk of lands and their management were settled on for-profit Regional Corporations and to my mind that has created multiple problems , not the least of which is the undercutting of the best of what traditional so-called subsistence culture offers both the individual and community. Mine is a minority view , as usual 🙂
Well……it is exactly clear as mud and from this article and the earlier Bromley article,the confusion(for me) rests with varying definitions of different words. What’s the legal difference between civilized and uncivilized tribes in Alaska? How do you give inalienable rights if they are subject to the whims of congress? Isn’t there a Hippocratic Oath for government-first do no harm?
P.S. I did learn a new word from the Bromley papers. Never heard of Nugatory before today. Thanks for continuing my enlightenment.
welcome to the club mikey! 🙂
There are various threads here.
1- ignore the uncivilized tribes crap. Major colonialist ‘tude there and nothing more.
2- As per Congressional powers in relation to American indigenous peoples :
Section 8
The Congress shall have Power …
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
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http://www.law.cornell.edu/wex/american_indian_law
teeny , tiny overview of some of the legal and stipulated language. which has grown out of that- of the mower-blade-set-on-high-to-blaze-over-the-weeds-at-high-speed variety .
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3-The land settlement here came out of Federal legislation . The timing was such that the oil pipeline was on the horizon and settling was to various groups’ advantage . The settling had to be done with the Fed under constitutional law.
The settlement was read by the state and fed to settle EVERYTHING in relation to Native claims and rights . It did not .
4-There is a lot of stipulated language and definitions under law to learn to plow your way through Native issues.. Have been pecking away at it myself for many, many years.
Tribes has a legal definition and a set of definitions in common use language. You have to know how it is being used in the context of a given argument. There are many more examples. Subsistence is another and the legal definition in realtion to Native peoples is truly different than the common use one- causes all kinds of problems and too often results in the devaluation of Native cultural values in relation to fishing, hunting, and food gathering,
Too many Alaskans don’t get it . Still.
Not going off on that rant tangent for now.
5- Fisheries management is split . Off the coast, in federal waters, it is the fed. In AK waters near shore it is the state. Depending on who owns the river waterways and/or what pieces of them, you will see state and federal fishery management, sometimes in concert and sometimes in opposition to each other.
Salmon being anadromous move through all jurisdictions and management schemes.
I could say more but you might start throwing rocks at me 🙂
The way I see it is there is not much difference between Alaska its fish and the large native population that are still connected in a large part to the land and the elimination of the buffalo upon the native population in the 1800s to control them…eliminate the food source and you control people the last thing the system wants is a man feeding his family with out needing any help, and if you stand back far enough who did America buy Alaska from Russia who never owned it in the first place to sell it…the native people were never asked can we buy you out, and now that we have ownership by another land lord who sees the land through the lens of profit over culture and a sustainable way of life my mind has to side with the indigenous people that were here long before it was stole from them.
Brian,,,thanks for your fb post on “When is Fishing a Crime”. To supplement (or supplant) your statement on the elimination of food resources of the Alaska indigenous community, I recall our people in my village community being busy, industrious and happy, before the anti-poverty act of 1964 (?) came into existence. What occurred then, when this law was adopted by the Congress, we did not know we were living in poverty…because our people weren’t earning wages or monies over some $13,000 per year. When that law came into being, our people were suddenly “in poverty”, thereby requiring federal and state assistance…in the form of welfare! The majority of our people…because of this law, have been made dependent of governments…not good!