Frank v. State

CONNOR, Justice,

dissenting.

I must respectfully dissent.

On the record I am unable to conclude that a freshly killed moose was necessary to *1076conduct the funeral potlatch. While it is traditional that as many native foods as possible should be served, it has not been established by the evidence in this case that fresh moose meat is indispensible for such a ceremony.1 It is merely desirable that such meat be served at those functions.2 For this particular potlatch there was already on hand a moose hind quarter, bear meat, and fish. No ducks, porcupine, rabbit or caribou were used, although they are also considered native food which may be served at a funeral potlatch. To the extent that moose meat was desirable because it had magico-religious, i. e., symbolic, significance, it was already available.

Unless the use of fresh moose meat rises to the level of a cardinal religious principle, unless it is central to a religious observance, it cannot qualify as a practice protected by the “free exercise” clauses of either the state or federal constitutions. See Wisconsin v. Yoder, 406 U.S. 205, 219, 92 S.Ct. 1526, 1535, 32 L.Ed.2d 15, 27 (1972); Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 1795, 10 L.Ed.2d 965, 971 (1963).

Because there was not a sufficient showing made here a case for the application of those clauses was not made out.

For these reasons, I would affirm the judgments of the district and superior courts.

. Although the anthropologists presented by appellant testified that, on the basis of their personal observations, they believed the use of fresh moose meat at a funeral potlatch is an important tradition of the Athabascan culture, they were not aware of any documentation showing that it is essential or required.

. Former Tribal Chief Peter John testified that there could be a potlatch without wild meat, “but then I don’t think I’ll enjoy it.” He also testified that although “it would be best to have . fresh meat,” it would not be ó disgrace to serve frozen moose meat.