Frank v. State

FRANK, Appellant, Carlos Alaska, Appellee.

STATE of

No. 3689.

Supreme Court of Alaska.

Dec.

taking a moose. It was their belief that was moose there insufficient meat available proper potlatch. One cow moose was for a shot, in transporting Frank assisted people Minto. to 250 attended Some final feast. of one of the hunt- passerby A took note officials, reported it to ing parties and state subsequently charged investigated who transportation of Frank with unlawful taken, in violation of AAC game illegally 81.140(b).1 hunting for The season was any in event there no was closed and open cow moose 1975. AAC season for 5-136, 1975). (Register July 54 at 81.320 Middleton, Wagstaff, Robert H. R. Collin Frank admitted In district court Middleton, Anchorage, ap- Wagstaff for & He transporting the moose. raised de- pellant. regula- application game of fense that him, circumstances, under tion Gen., Atty. Av- Geoffrey Haynes, Asst. abridgment an of his freedom amounted to Juneau, Gross, Gen., ap- for Atty. rum M. religion. evidentiary After extensive of an pellee. Clayton found that “the hearing, Judge fu- n J., of RABINOWITZ, integral part C. and CON- neral Before BOOCHEVER, of the central NOR, MAT- belief Alas- cultural BURKE He Indian.” found further THEWS, ka Athabascan JJ. part integral is an of diet “that moose life’ to these Athabascan and ‘the staff of OPINION Indians;” for a that food such MATTHEWS, Justice. food;” required to be native primarily “is Charlie, a Delnor October for such a is “more desirable” that moose Minto, Immediately young man from died. food; any other native but celebration than made a that preparations were for ritual required for “specifically it is Min- performed had countless times in been however desirable it ceremonial occasion other Athabascan Central Alaska Judge Clayton be.” thus concluded potlatch, It is a villages. called his reli- had not been denied that Frank days’ duration culmi- ceremony several thereupon Frank was con- gious privileges. feast, nating in a eaten after burial day jail forty-five a sentenced to victed and deceased, by members of which is shared suspended, a thirty days $500 term with village come from some- proba- others who suspended, year one fine with $250 tion, hunting locations. license suspension times distant of his and a Clayton at sen- year. Judge noted for one traditional, burial, Charlie’s as Delnor his be- tencing that Frank was sincere liv- delayed friends and relatives until beliefs which had and it was these liefs ing reach Minto and until elsewhere could him into criminal violation. carried necessary could the foods preparation Judge Van prepared. Superior With the food Court appeal On pot- way, twenty-five Frank and also determined “that under Carlos Hoomissen activity belief village formed is an rooted thirty other men from the latch integral part of the very parties purpose for the hunting several 81.140(b) states: 1. 5 AAC game illegally No or person may taken. possess transport parts needs, stringent of the Athabascan . social a moral tenets Indian. constitutes sincerity itself, of Minto- of the natives in and of wrong far more than their beliefs is not doubted.” impairment would his freedoms However, agreed Judge Clayton he speech, press argument or assembly. The fresh moose not such merely meat was avoiding compulsion is not necessity “absolute . as to over- produces greatest conscience man’s the compelling ride state interest of good greatest number, the for but that management Alaska in the and compulsion State such is itself unfair to the of its control for benefit of all its individual concerned. The moral condem- white,” people, native and and affirmed the implicit nation in the criminal threat of conviction. likely very painful sanctions is to be to Furthermore, by one motivated belief. We have free concluded that the exercise principled to a the cost individual fail- of the to the clauses first amendment Unit- ing do his moral duty generally to Constitution,2 I, ed States and article sec- severe, supernatural in terms of sanction Constitution,3 4 protect tion of the Alaska loss self-respect. or the of moral Frank’s conduct and that the state has not costs, face these refus- individual’s justify prohib- demonstrated reasons which inevitable, obey may al to the law iting it. We therefore reverse convic- perhaps in some sense therefore unusual tion. Our reasons follow. word, involuntary. Clark, I J. Guidelines for the Free Exercise Clause, 327, (1969). 83 Harv.L.Rev. Be- 337 place No value has higher a in our relationship cause of close con- between system government constitutional than high duct belief and because of the that of freedom. The freedom to beliefs, assign value we to reli- protected believe Cantwell absolutely. v. impelled giously actions can be forbidden Connecticut, 303, 296, 900, 310 60 U.S. S.Ct. they pose where “some substantial 903, 1213, 84 L.Ed. The 1218 free public order,” safety, peace threat or dom to act on one’s beliefs is also Verner, 398, 403, v. Sherbert U.S. protected, but protection such be over 1790, 1793, 965, (1963), 10 L.Ed.2d S.Ct. by compelling come state interests. Sher or there are competing governmental where Verner, 406, 398, v. bert U.S. highest interests that are “of the order and 1790, 1795, 965, (1963).4 10 L.Ed.2d A not otherwise served . . .” [are] imposing penalties law criminal or other Yoder, v. Wisconsin U.S. performance of acts which conscience 1526, 1533, L.Ed.2d 15 compels, pressures underlying beliefs infringes to that extent the freedom to It has been clear at least since Sherbert believe. As one commentator has stated: in certain Verner cases the free exer- religion The violation of a requires man’s or con government cise clause accom- exceptional science often works an religious practices harm by creating modate ex- which, justified to him unless the most emptions general from laws. Sherbert part: regarding 2. U.S.Const. amend. I states in from Oliver Cromwell’s reli- directive gious liberty for Catholics in Ireland: Congress respecting shall make no law religion, prohibiting conscience, establishment of or As to freedom of I meddle with conscience; free you exercise thereof. no man’s if mean but that, liberty Mass, I celebrate the would I, 3. Art. 4§ states: you place have understand that in no where power pre- England of the Parliament of respecting No law shall be made estab- permitted. vails shall that be religion, prohibiting lishment of the free Paty, n. McDaniel exercise thereof. S.Ct. (1978) 1330 n. 55 L.Ed.2d 604 n. 2 recently questioned (citation omitted). (concurring opinion) Mr. Justice Brennan has Tribe, sharp whether a be made L. distinction can be- See also Law Constitutional practices, quoting (Supp.1979). tween beliefs and 79 80 presented impressive appellant work on evi- she would not Satur- fired because concerning religion dence her Her the Central religion. claim day, sabbath people. Alaskan Athabascan Several Atha- compensation was de- unemployment expert anthropologists bascans and testified courts there was a nied in the state because anthropological were works received in eligibility condition of worker be unrefuted, evidence. The evidence was Monday through Satur- available for work summary following. it shows held day. Supreme Court exception duty highly had to make an state Athabascan culture is individual- system indi- policy complex that Sherbert’s exercise of her ized. From belief so is tolerated and is the norm. penalized. 374 vidual selection religion not be would Yet, system recog- is a distinct belief there 406, 83 at 10 L.Ed.2d at 971. villages many miles nizable in Athabascan was followed Wisconsin Sherbert comfort- apart. These beliefs blended 92 S.Ct. ably Christianity which was intro- In 15 Yoder there was in- L.Ed.2d century. 19th duced in the respondents’ between be- volved conflict receiving crisis Death is the life lief, religion of the old rooted in the order in current Athabascan greatest attention Amish, pub- not that children should attend it may culture. While be awaited grade, beyond eighth lic school and a predominant is equanimity, it an event requiring Wisconsin all children to statute long significance, repercussions whose are public through age attend schools village. felt in the exemption held sixteen. The court potlatch impor- The funeral is the most granted. must be Id. at 92 in is tant institution Athabascan life. It courts, 32 at 37. L.Ed.2d Other fol- John, seventy-six, mandatory. Peter a for- Sherbert, lowing required excep- have also Minto, mer in could not remem- tribal chief in facially tions to neutral laws order by ber not followed a death based conduct.5 protect religiously an ob- apparently It is funeral suggest possibility. While a scenity to II may be secular potlatch held to celebrate occasions, potlatch the funeral is distin- may The free exercise clause be in fundamentally aspect. guished by its sacred religion only voked where there is a in it origins antiquity has its ritual volved, question only where conduct changed any important respect has not based, religiously is where began anthropologists since first to describe claimant is sincere. Wisconsin v. it. 205, 215, 216, 92 1533- 25 32 These re the cornerstone of the ritual. Food is of, readily here. is quirements present are We moment the death learned From the People begin to preparation begins. shall examine them in order. food Defense, See, Jenison, (D.D.C.1976) Sec’y F.Supp. g., 16 e. 84 423 In re (Jewish curiam) (state chaplain permitted (per wear 11 must be L.Ed.2d 39 court beard); Woody, light People v. 61 40 Cal.2d decision vacated and of Sher remanded remand, (1964) bert), (exempting Cal.Rptr. 125 394 P.2d 813 on 267 Minn. N.W.2d drug (Minn.1963) (exemption jury duty Navajo peyote from criminal re sect’s 588 quired from addition, belief); laws). numerous courts to accommodate Na unnecessarily States, prison regulations found various tive Amer. of New York v. United Ch. prisoners’ religious (S.D.N.Y.1979) F.Supp. (exemption re on beliefs restrictive garding: Carlson, diet, see, g., peyote v. e. Kahane use of available to 1975); Chapman (2nd organization); Klein v. fide Michaelson F.2d 492 Cir. bona 1974); Booth, dienst, (7th (D.R.I. F.Supp. observ 507 F.2d 1246 Cir. ex rel. Lewis v. holy days, Brierley, 1977) (municipal see X v. election held on ance of hair, see, (E.D.Pa.1978); g., day); Berger, F.Supp. e. holy Stevens Burns, 1975) (8th (E.D.N.Y.1977) (religious F.Supp. F.2d 357 Teterud v. Cir. believers Raines, (native braids); Wright obtaining exempted requirement American’s from social (D.Kan.1978) (beard). children); F.Supp. security for their Geller numbers village arrive in the from nearby served, and re- the most desirable of foods to be it places. mote brought by partici- Food is all requirement.” is not “an essential pants to one or several houses associated finding The district court’s that moose with the deceased and is shared in several was not essential for a funeral pre-burial body meals. The will not be primarily following testimony based on the buried quantity until a sufficient of the of Chief Peter John: proper prepared food is post for the burial Q. there be Could without feast. In the case of Delnor Charlie this wild meat? took four to five days. Well, be, A. maybe, it could I but then Athabascans believe that the pot- enjoy don’t think I’ll it. latch is the last meal shared the living However, John also stated that he had been with the deceased. It is a communion meal. potlatches to hundreds of and had never The deceased is songs discussed and of eulo- attended one in which there was no moose gy sung. The deceased thought meat, a recollection shared Catherine partake of the meal and helps spirit this his Attla, fifty-two, and Carlos Frank. Bar- journey.6 its Lane, anthropologist, provided bara The funeral serves other func- gloss on John’s statements: grief tions. The family is to be A. priest If a Roman Catholic were in eased. community becomes involved up some bush area here and found sharing of food is the communal tie. himself proper without wafers Prayers are said for the dead living. and the wine, perform he could still his All who have come and contributed are substitute, function with some but it It hoped thanked. is pot- funeral wouldn’t do in the sense —If at all follow, latch and one that is to often more possible foods, proper to have the later, than year potlatch, memorial you that’s what would use. will assuage spirits prevent future Q. deaths. But' nevertheless it could be accom- plished? clear, From the foregoing it is and con- A. I strait, believe so. As a dire sistent with in some findings of the courts be- low, unusual that the circumstance. funeral is a ceremony. The role of. moose meat in that Other witnesses stated that moose meat is á ceremony must next be examined. necessary requirement having the sacra- equivalent mental to the wine and wafer in Native comprise foods almost all of the Christianity. Frank and all of the Athabas- foods served at the funeral In a witnesses, John, can including Peter testi- culture without many formal rules this is an they fied that showing could not risk requirement. absolute disre- Native food means spect moose, bear, by failing to the dead caribou, fish, provide porcupine, duck post moose for the burial berry ritual. dishes. Of the native foods Thus we would be apex. moose is at the inclined to hold big game most common that the district court clearly animal is re- erroneous quired, and in in concluding Central Alaska this that moose is moose. meat was not es As found, the district court it is sential for the pot- the staff of observance of a funeral life; However, it is the meat people regard which the necessity latch. absolute is a important as most for their sustenance. standard stricter than that which the law However, the district court found that imposes. al- It is practice sufficient though the evidence indicated that moose is be deeply rooted in bring belief to 6. As the district partakes court found: the funeral where he of the communal feast food which is burned and sharp No separates line of demarcation where he is honored those who knew him living from the dead. It is believed that the help journey yoyeet (“like him on his (“similar kunkubidza to dead but still sky”). up in the same”) person present who died is at occupy place in the sources of Alaska the free exercise of it within ambit is unparalleled which lifestyle burden of Alaskans place the state its clause and Rural the United States. of reli elsewhere justification. The determination acutely natives are aware of this. a Alaska the business of orthodoxy is not gious Valley noted As we in State Tanana Burns, F.2d court. Teterud secular : Sportsmen’s Association 1975); v. Wil (8th Cir. Moskowitz (D.Conn. kinson, 949-50 F.Supp. years, many of the Na- For hundreds of Defense, depended 1977); Secretary of on hunt- people Geller v. tive of Alaska To (D.D.C.1976); ing Monroe to obtain the necessities of life. F.Supp. Bombard, (S.D.N. day, those of despite 215 n. 4 incursions of F.Supp. Eskimos, cultures, many Alaska Y.1976). different Aleuts, eke out a livelihood Indians inescapable is We think the evidence game. by reliance on fish and at a of moose meat the utilization prime importance is Not rooted practice deeply is a life, bare furnishing necessities religion. While moose in the Athabascan hunting is the core of but subsistence sacred, proper it is needed for itself is not many of these the cultural tradition ritual must sacred observance their It has been claimed that people. Moose soon death occurs.7 place take after lifestyle they if very is threatened important centerpiece of the most is the deprived of this traditional method equiva life and ritual in Athabascan is obtaining wherewithal for existence. religions.8 sacred in other symbols lent of (Alaska 1978) (cita- n. 18 sincerity no ex- requires question omitted). impor- Illustrative of the tions found discussion. The district court tended fact that of wildlife in Alaska tance his That Frank to be sincere in beliefs. re- specific contains state constitution our abundantly supported in the conclusion manage- governing its quirements record. Constitution, article Alaska ment. See VIII, sections 3 and Ill however, simply to con- enough, It is not inter- protected compelling reli- a state Having that that there is established clude involved, healthy popula- maintaining we to in a moose turn next est gious conduct is interest, question is whether that competing state inter- tion. The an evaluation the of other, exemption if suffer any but that will question There can be no est. prac- under- to accommodate very strong granted is a state interest there Thus, in Wisconsin re- tice at issue.9 hunting game restrictions. The lying However, except which for the moose of meals. take a moose out 7. course need to Of transported, village meat there was no moose Frank season arises deaths in a because only year part witness- place feast. The subject not for the final at time of and it is available take By spoke there plan that who to this stated Athabascan to for them. es of contrast, culture potlatch, timing enough for a meat available of the memorial was not moose proper potlatch. be this it would often On record which follows the funeral contrary year, clearly inappropriate not to a a it does for us take more than is controllable and exigency give the funeral .rise to the same as view. potlatch. 9.Congress’ of 42 U.S.C.A. recent enactment provides part (Supp.1979), that which colleague suggested dissenting that has 8. Our enough village policy States to of United to it shall was meat in the there moose officer, symbolic arresting protect preserve for Indians and The fulfill a role. believe, old, Minto, right of freedom to upon their inherent express, did note some his arrival in religions out, hanging out- exercise traditional moose meat somewhat dried doors, Indian, Eskimo, Aleut, this was of the American but was no evidence that there Hawaiians, including limited not but Native who would make it availa- owned someone sites, possession addition, of sa- potlatch. access to there to ble for use worship objects, freedom to piece and the a of moose cred through was evidence there was that rites[,] pre-burial and traditional ceremonials which at one of the meat was served 205, 1526, urge S.Ct. L.Ed.2d 15 The does state not that an (1972), exemption granted not to the to inquiry needing was limited Athabascans importance compulsory school meat a attendance moose funeral will re generally. Also was an examina- in so many jeopar needed sult taken as objectives “the impediment appropriate tion of to those population dize levels. tri recognizing that flow question. would from al record is silent We are 221, exemption.” many pot- claimed . . . at advised how funeral Id. not as to 1536, year, many 32 L.Ed.2d at each how latches held nor taken, legally moose are nor the level of widespread The state contends that civil population which cause a de harvest would disobedience will if result Athabascans are All cline. the record reveals is there out of allowed take moose season when but one in Minto in for a funeral As the necessary 1975, and that one moose was needed for it. puts colorfully state’s brief it: “Alaskans demonstrating compelling The burden of tendency seem to a marked to come justifies curtailing state interest which unglued over fish and wildlife allocation practice religiously lies with based result, gen- predicts issues.” state as a record, this state.10 On that burden has not laws, eral non-observance of the been met. spiral anarchy”, “poaching “downward into robbing,” “tragic and creek confronta-

tions” between recreational hunters and IV Athabascans. we Finally, turn to the state’s

giveWe no argument. argument credence granting exemption is, all, It supported by any first this case would amount to an establishment Moreover, prediction gen evidence. religion contravening its the establishment eral lawlessness is an extreme and unwar clauses of the to the first amendment Unit general I, ranted comment on the character of ed States Constitution article section the state’s citizens. Interests justify Alaska Constitution.11 These claus religious practices limitations on designed prevent must be es are “sponsorship, far definite more than these. “Justifica support, financial and active involvement of tions founded on fear and apprehen sovereign religious activity.” Walz Commission, 664, sion are rights 668, insufficient to overcome as v. Tax serted under the First Amendment.” Teterud L.Ed.2d Burns, (8th v Bonjour Bonjour, F.2d 361-62 Cir. See 1975). Indepen 1979). Tinker v. Des (Alaska See Moines Accommodating 1241-42 Community District, dent by per School beliefs Athabascans mitting killing a moose for a funeral 739 potlatch does rise to not the level of these largely Congress abridging motivated laws that make such as those shall no laws the seeking preserve endangered species. to religion.” The free exercise of Id. at 1262. See also report .accompanying House 42 U.S.C.A. (Supp.1979), 16 U.S.C.A. which § 668a autho- 1996, peoples long 912, 913, Cal.Rptr. chotomy governmental between actions ar- guably (even beyond doubt) compelled if not (West Supp. by clause, 29.106 1978- governmental 15. Wis.Stat.Ann. the free exercise 79). regulations, pro- supportive religion ways clearly Detailed administrative actions mulgated prior by the statute had achieved not mandated free Actions “ar- exercise. Resources, Dep’t. guably compelled” by Nat. same end. See Wis. Sec’y’s Directive, free exercise are not by “Taking of Deer Winneba- forbidden clause. establishment (Dec. Tribe, Purposes” go Religious L. (1978) (emphasis Indians for Constitutional Law 822 1976). original). Wond See also potlatch. conduct the funeral While it is many

traditional that as native foods as CARMAN, Appellant, Michael served, possible should it has not been established the evidence in this case that Alaska, Appellee. STATE of fresh indispensible moose meat is for such a ceremony.1 merely It is desirable that such No. 3619. meat be served at those functions.2 For Supreme Court of Alaska. particular potlatch already there was meat,

on hand quarter, a moose hind bear Dec. 1979. ducks, porcupine,

and fish. No rabbit or used,

caribou although they were are also

considered native food which be served a funeral To the extent

moose meat was desirable because it had e.,

magico-religious, symbolic, signifi- i.

cance, it already available.

Unless the use of fresh moose meat rises

to the level of a principle, cardinal

unless it religious observance, is central to a qualify practice

it cannot as a protected by

the “free exercise” clauses of either

state or federal constitutions. See Wiscon 205, 219,

sin v.

1526, 1535, (1972); Sher Verner, 398, 406,

bert v. 83 S.Ct.

1790, 1795, 10 L.Ed.2d

Because there was not a sufficient show-

ing made application here a case for the

those clauses was not made out. reasons,

For these I would affirm the

judgments of superior district

courts. Although anthropologists presented by 2. Former Tribal Chief Peter John testified that that, appellant meat, testified on the basis of their there could be a without wild personal observations, they enjoy believed the use of “but then I don’t think I’ll it.” He also fresh moose meat at a although is an testified that “it would be best to have important culture, meat,” tradition of the Athabascan fresh it would not be ó dis- they grace were not aware of documentation serve frozen meat. showing required. that it is essential or notes § sought protective legislation that Indian taking eagles religious rizes the bald “for the species for certain tribes,” purposes of 25 Indian C.F.R. yet (1978), 11.87H which declares it to be lawful sell, § laws, such when combined with more restric- “buy, possess, peyote one to or regulations, pro- tive insensitive enforcement religious prac- form in with connection the directives, policy cedures and administrative tices, sacraments or services of the Native severely have interfered with the (1979) 21 1307.31 § Church.” C.F.R. religion culture and of American Indians. religious peyote. exempts also use of 3, H.R.Rep.No.1308, Cong., 95th 2nd Sess. re- printed Cong. in 1978 U.S.Code & Ad.News Verner, 398, 407, Sherbert 374 U.S. 83 10. 1262, suggested by report 1263. It is the House 1790, 965, 1795, 10 L.Ed.2d 972 S.Ct. impacts “upon that such of tradi- exercise religious practices” tional Indian supra. See notes 2 3 11. “compliance injunction with the constitutional 1075 religious purpose of such an accom models for similar interests. accommoda- merely permit modation is the observ example, 16 tions. For U.S.C.A. 668a § ance of the ancient traditions of the Athab (Supp.1979), authorizes the Secretary of the such, exemption As “reflects ascans.12 eagles Interior to allow to be taken “for nothing governmental than the obli more tribes,” religious purposes upon of Indian gation neutrality religious in the face of taking finding compatible that differences, represent in and does not preservation species. Regula- volvement of with secular institu published implementing tions have been object tions which it is the of the Establish (1978). Similarly, this. 50 C.F.R. 22.22 ment Clause to forestall.” Wisconsin v. Yo legislature recently the Wisconsin has en- der, 205, 234, 22, 1526, 406 n. 92 U.S. S.Ct. taking permitting acted a statute 22, 15, 36, (1972), 1543 n. 32 L.Ed.2d n. 22 by Winnebago deer Indians for Verner, 398, 374 quoting Sherbert v. ceremonies, and has directed the state De- 1790, 1796, 83 S.Ct. 974 partment of Natural promul- Resources to (1963).13 Arguments similar to the state’s gate appropriate regulations,15 plainly wrong were dismissed as in Sherbert In view the result we have reached we and Yoder.14 appellant’s have no occasion to consider the other claims. V urge If the reason the state did not judgment reversed and case is exemptions potlaches will for funeral en- remanded with instructions to dismiss danger populations is that such a complaint. made, showing cannot be the state adopt regulations governing well advised to CONNOR, J., dissents. taking purposes. of moose for such Carefully designed regulations would have Justice, CONNOR, dissenting. guarding against the effect of abuses and respectfully I must dissent. keeping, aid in record which would be of I am unable to conclude determining impact value of the ex- On record emption populations. freshly necessary on moose There exist that a killed moose was See, Products, Inc., Butz, g., F.Supp. e. Jones v. zell v. Alaska Wood 584, 601 P.2d aff’d. mem., (S.D.N.Y.), Opn. (Alaska, 1979). 419 U.S. No. 1720 (1974), holding 42 L.Ed.2d 36 part argument concerning 1902(b) 14. As a its (Supp.1979), exempts §C.A. cer religiously establishment clause the state contends prescribed tain methods of animal state, courts, unduly will become slaughter requirements and the from the of the Hu religion by necessity sepa- Act, entangled Slaughter mane to be consistent with the rating spurious genuine claims from ones. establishment clause. judicial is correct can While it that there be no belief, of the truth of a examination suggested 13. One that no ac- commentator has Ballard, 78, 86-87, United States v. “arguably commodation which is even pelled” by com- 882, 886-887, (1944), L.Ed. the free exercise clause can violate sincerely belief is held is a whether the establishment clause: subject adjudication. proper States United attempting distinguish between situa- 163, 185, 850, 863, Seeger, 380 U.S. accommodating programs to reli- tions where (1965); People Woody, 13 L.Ed.2d gious needs has been held excessive and 69, 77, Cal.Rptr. 61 Cal.2d permissible those where it has been held (1964); Grady, In re Cal.2d mandatory, helpful posit even it is a di-

Case Details

Case Name: Frank v. State

Court Name: Alaska Supreme Court

Date Published: Dec 21, 1979

Citation: 604 P.2d 1068

Docket Number: 3689

Court Abbreviation: Alaska