Frank v. State

• Decision Date: 21 December 1979
• Docket Number: No. 3689,3689
• Citation: 604 P.2d 1068
• Parties: Carlos FRANK, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 1068

604 P.2d 1068

Carlos FRANK, Appellant, v. STATE of Alaska, Appellee.

No. 3689.

Supreme Court of Alaska.

Dec. 21, 1979.

R. Collin Middleton, Robert H. Wagstaff, Wagstaff & Middleton, Anchorage, for appellant.

Geoffrey Haynes, Asst. Atty. Gen., Avrum M. Gross, Atty. Gen., Juneau, for appellee.

Before RABINOWITZ, C. J., and CONNOR, BOOCHEVER, BURKE and MATTHEWS, JJ.

OPINION

MATTHEWS, Justice.

In October of 1975, Delnor Charlie, a young man from Minto, died. Immediately preparations were made for a ritual that had been performed countless times in Minto and other Central Alaska Athabascan villages. It is called the funeral potlatch, a ceremony of several days' duration culminating in a feast, eaten after burial of the deceased, which is shared by members of the village and others who come from sometimes distant locations.

Delnor Charlie's burial, as is traditional, was delayed until friends and relatives living elsewhere could reach Minto and until the foods necessary for the potlatch could be prepared. With the food preparation under way, Carlos Frank and twenty-five to thirty other men from the village formed several hunting parties for the purpose of taking a moose. It was their belief that there was insufficient moose meat available for a proper potlatch. One cow moose was shot, which Frank assisted in transporting to Minto. Some 200 to 250 people attended the final feast.

A passerby took note of one of the hunting parties and reported it to state officials, who investigated and subsequently charged Frank with unlawful transportation of game illegally taken, in violation of 5 AAC 81.140(b). ¹ The season for moose hunting was closed and in any event there was no open season for cow moose in 1975. 5 AAC § 81.320 (Register 54 at 5-136, July 1975).

In the district court Frank admitted transporting the moose. He raised the defense that application of the game regulation to him, under the circumstances, amounted to an abridgment of his freedom of religion. After an extensive evidentiary hearing, Judge Clayton found that "the funeral potlatch is an integral part of the cultural religious belief of the central Alaska Athabascan Indian." He found further "that moose is an integral part of the diet and 'the staff of life' to these Athabascan Indians;" that the food for such a potlatch "is primarily required to be native food;" that moose is "more desirable" for such a celebration than any other native food; but that it is not "specifically required for this ceremonial occasion however desirable it may be." Judge Clayton thus concluded that Frank had not been denied his religious privileges. Frank was thereupon convicted and sentenced to a forty-five day jail term with thirty days suspended, a $500 fine with $250 suspended, one year probation, and a suspension of his hunting license for one year. Judge Clayton noted at sentencing that Frank was sincere in his beliefs and it was these beliefs which had carried him into a criminal violation.

On appeal Superior Court Judge Van Hoomissen also determined "that the potlatch is an activity rooted in religious belief and a very integral part of the religious tenets of the Athabascan Indian. . . . The sincerity of the natives of Minto in their religious beliefs is not doubted." However, he agreed with Judge Clayton that fresh moose meat was not such an "absolute necessity . . . as to override the compelling state interest of the State of Alaska in the management and control of its game for the benefit of all its people, native and white," and affirmed the conviction.

We have concluded that the free exercise clauses of the first amendment to the United States Constitution, ² and article I, section 4 of the Alaska Constitution, ³ protect Frank's conduct and that the state has not demonstrated reasons which justify prohibiting it. We therefore reverse the conviction. Our reasons follow.

I

No value has a higher place in our constitutional system of government than that of religious freedom. The freedom to believe is protected absolutely. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213, 1218 (1940). The freedom to act on one's religious beliefs is also protected, but such protection may be overcome by compelling state interests. Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 1795, 10 L.Ed.2d 965, 972 (1963). ⁴ A law imposing criminal or other penalties on the performance of acts which conscience compels, pressures the underlying beliefs and infringes to that extent the freedom to believe. As one commentator has stated:

The violation of a man's religion or conscience often works an exceptional harm to him which, unless justified by the most stringent social needs, constitutes a moral wrong in and of itself, far more than would the impairment of his freedoms of speech, press or assembly. The argument is not merely that avoiding compulsion of a man's conscience produces the greatest good for the greatest number, but that such compulsion is itself unfair to the individual concerned. The moral condemnation implicit in the threat of criminal sanctions is likely to be very painful to one motivated by belief. Furthermore, the cost to a principled individual of failing to do his moral duty is generally severe, in terms of supernatural sanction or the loss of moral self-respect. In the face of these costs, the individual's refusal to obey the law may be inevitable, and therefore in some perhaps unusual sense of the word, involuntary.

J. Clark, Guidelines for the Free Exercise Clause, 83 Harv.L.Rev. 327, 337 (1969). Because of the close relationship between conduct and belief and because of the high value we assign to religious beliefs, religiously impelled actions can be forbidden only where they pose "some substantial threat to public safety, peace or order," Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 1793, 10 L.Ed.2d 965, 970 (1963), or where there are competing governmental interests that are "of the highest order and . . . (are) not otherwise served . . . ." Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972).

It has been clear at least since Sherbert v. Verner that in certain cases the free exercise clause requires government to accommodate religious practices by creating exemptions from general laws. Sherbert was fired because she would not work on Saturday, the sabbath of her religion. Her claim for unemployment compensation was denied in the state courts because there was a condition of eligibility that a worker be available for work Monday through Saturday. The Supreme Court held that the state had a duty to make an exception to this policy so that Sherbert's exercise of her religion would not be penalized. 374 U.S. at 406, 83 S.Ct. at 1795, 10 L.Ed.2d at 971.

Sherbert was followed in Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). In Yoder there was involved a conflict between respondents' belief, rooted in the religion of the old order Amish, that children should not attend public school beyond the eighth grade, and a Wisconsin statute requiring all children to attend public schools through the age of sixteen. The court held that an exemption must be granted. Id. at 236, 92 S.Ct. at 1543, 32 L.Ed.2d at 37. Other courts, following Sherbert, have also required exceptions to facially neutral laws in order to protect religiously based conduct. ⁵

II

The free exercise clause may be invoked only where there is a religion involved, only where the conduct in question is religiously based, and only where the claimant is sincere. Wisconsin v. Yoder, 406 U.S. 205, 215, 216, 92 S.Ct. 1526, 1533-1534, 32 L.Ed.2d 15, 25 (1972). These requirements are readily present here. We shall examine them in order.

The appellant presented impressive evidence concerning the religion of the Central Alaskan Athabascan people. Several Athabascans and expert anthropologists testified and anthropological works were received in evidence. The evidence was unrefuted, and in summary it shows the following.

Athabascan culture is highly individualized. From a complex belief system individual selection is tolerated and is the norm. Yet, there is a distinct belief system recognizable in Athabascan villages many miles apart. These beliefs have blended comfortably with Christianity which was introduced in the 19th century.

Death is the life crisis receiving the greatest attention in current Athabascan culture. While it may be awaited with equanimity, it is an event of predominant significance, whose repercussions are long felt in the village.

The funeral potlatch is the most important institution in Athabascan life. It is mandatory. Peter John, seventy-six, a former tribal chief in Minto, could not remember a death that was not followed by a funeral potlatch. It is apparently an obscenity to suggest that possibility. While a potlatch may be held to celebrate secular occasions, the funeral potlatch is distinguished by its fundamentally sacred aspect. The ritual has its origins in antiquity and it has not changed in any important respect since anthropologists first began to describe it.

Food is the cornerstone of the ritual. From the moment the death is learned of, food preparation begins. People begin to arrive in the village from nearby and remote places. Food is brought by all participants to one or several houses associated with the deceased and is shared in several pre-burial meals. The body will not be buried until a sufficient quantity of the proper food is prepared for the post burial feast. In the case of Delnor Charlie this took four to five days.

Athabascans believe that the funeral potlatch is the last meal shared by the living with the deceased. It is a communion meal. The deceased is discussed and songs of eulogy are sung. The deceased is thought to partake of the meal and this helps his spirit on its journey. ⁶

The funeral potlatch serves other functions. The grief of the...