By D. Bruce Johnson
Tensions run high between native and commercial fishermen in British Columbia. One reason is that the Pacific salmon fishery is being depleted. Another is the case law determined by the Canadian Supreme Court, which gives First Nations tribes priority to a fixed claim over commercial fishermen for the seasonal salmon catch.
Unfortunately, the legal discourse on these issues is framed by the Canadian courts’ reliance on cultural anthropology. Cultural anthropologists have traditionally regarded the British Columbia First Nations as “hunter-gatherers” who had the good fortune to reside in an environment naturally “superabundant” with salmon. But this view is contrary to an economic interpretation of the ethnographic record.
In this essay, based on a longer one (Johnsen 2006), I will paint with a broad brush a picture of how tribes managed Pacific coast salmon before the arrival of white settlers and will present a plan that is culturally consistent with past tradition, one that can end the disputes over tribal salmon rights and lead to a sustainable fishery. For more detail, see my longer essay.
When Europeans made first contact on the Pacific coast, many tribes had exclusive property rights to salmon streams (Johnsen 1986, 2001).1 Because Pacific salmon return to their natal streams to spawn, tribal ownership of streams provided secure ownership of native salmon stocks. Rather than being the fortunate beneficiaries of a naturally rich environment, the coastal tribes actually created an abundance of salmon through centuries of purposeful husbandry and resource management.
Tribes in British Columbia lost exclusive ownership of their salmon stocks with the arrival of commercial canneries, the first appearing at the mouth of the Fraser River in 1871. Commercial fishermen began intercepting salmon in the ocean rather than in streams, beginning the long downward trend in salmon stocks. Government regulation has been unable to stop this decline. Between 1950 and 1997, nearly fifty percent of the salmon populations in British Columbia were wiped out due to overfishing and other intrusions. Degradation of spawning habitat also occurs through industrial pollution, erosion from logging roads, silt deposits due to clear-cutting, organic wastes, dams, changes in water temperature, and changes in water flows owing to real estate development. In the absence of public outcry, federal and provincial governments apparently lack the incentives to properly protect the stocks.
THE ROLE OF SALMON
The importance of salmon to the pre-contact native economy cannot be overstated. Most coastal tribes’ livelihood revolved around the yearly cycle of salmon runs. Except on larger rivers such as the Fraser, each tribe normally claimed a large territory oriented around one or more rivers small enough to be owned throughout their entire length. The tribe consisted of several shifting subdivisions, sometimes called clans, which in turn were divided into local group houses. These tribal groups took much of the salmon harvest in tidal or fresh water with elaborate fish weirs (small dams or fences) and traps, or with dip nets, harpoons, and spears, primarily at upstream summer villages controlled by local clan-house leaders. Almost uniformly up and down the coast, wealthier title holders were known by a name that translated roughly into “river owner.”
It would be difficult to find a genus in the animal kingdom better suited to husbandry than Pacific salmon. The time between generations is short enough, and the struggle to reproduce keen enough, that during a person’s lifetime the characteristics of a given salmon stock can evolve dramatically in response to minor environmental changes, whether induced by nature or by human influences.
The tribes’ fishing technology was suited to salmon husbandry. Many tribes relied on fish weirs. During a run, salmon entered a holding trap, and the attendants could select which salmon could continue to the spawning beds. To increase the average size of fish, a chief could have required the attendants to harvest the smaller fish, leaving the larger fish to spawn and, in turn, to reproduce larger offspring. It is plausible that the tribes engaged in purposeful genetic selection of stocks this and other ways.
Tribal organization was also suited to knowledge accumulation. Tribal chiefs held title to streams and other resources on behalf of their tribe. A tribal leader’s reputation was part of his payoff from superior salmon husbandry, and tribal chiefs were known to possess a corpus of “secret” knowledge about how best to use their resources to create wealth (Drucker and Heizer 1967, 7).
Potlatching evolved as a way to define and enforce exclusive tribal property rights to salmon streams and stocks. This ceremonial gift-giving has been described as “the ostentatious and dramatic distribution of property by the holder of a fixed, ranked, and named social position to other position holders” (Codere 1950, 63). The practice redistributed wealth both within and between tribes and seems to have increased at the time of European contact.
Tribal ownership of streams
provided secure ownership of
native salmon stocks. Rather than
being the fortunate beneficiaries
of a naturally rich environment,
the coastal tribes actually created
an abundance of salmon through
purposeful husbandry and
The famous ethnographer Franz Boas (1966) and the students of cultural anthropology who followed him deserve much of the credit for recording tribal culture on the Paciï¬c coast of the northern United States and southern Canada. But Boas and his followers misunderstood potlatches (Suttles 1990, 85). In Boas’ view, they were primarily a means of establishing social rank. In contrast, Suttles (1960, 1968) and Piddocke (1968) proposed that potlatching provided a form of social insurance against local hardship such as the occasional failure of salmon runs. Donald and Mitchell (1975) supported this hypothesis with empirical evidence.
The coastal tribes were extremely protective of their streams, with trespassers often summarily executed. Potlatching was an alternative to violence in enforcing tribal property rights. Tribes that experienced unexpectedly high productivity would make protection payments—gifts—to those whose productivity was unexpectedly low. Given that all tribes faced the possibility of a poor salmon run at one time or another, all faced the possibility that others would encroach on their salmon rivers. Gift-giving kept potential encroachers away and avoided mutually destructive warfare.
A POTLATCH ANALOGUE TODAY
Giving tribes exclusive ownership of salmon stocks, including the option to manage them for commercial purposes, would be possible within Canadian law, but the Canadian Supreme Court will probably be reluctant to restore salmon stock ownership to the tribes in a way consistent with their pre-contact customary rights. The social upheaval from such a judicially orchestrated transfer of wealth would be devastating.
An alternative is available in a return to the concept underlying the potlatch. When tribes experienced disputes over the title or ownership of streams, the rival claimants resolved the dispute with a “rivalry potlatch.” As Drucker outlines it (1955, 128), “When two chiefs claimed the same place, the first one would give a potlatch, stating his claim; then the second would try to outdo him.” At some point, one of the chiefs either “gave away or destroyed more property than his opponent could possibly equal.” This ended the contest for ownership because he and his tribe had shown that they had fewer resources.
We can go back to the “rivalry” potlatch to solve today’s problems. The modern analogue of the rivalry potlatch is a second- price sealed-bid auction, but one in which the winner pays the loser an amount equal to the loser’s bid.
In a standard auction, the winner pays the amount of the bid to the seller. In a second-price sealed-bid auction, the winner pays an amount equal to the loser’s bid. In this proposal, the proceeds would go to the loser, rather than the seller or a third party. The idea is that each party to the auction calculates the value of the asset to him (or her or, in this case, an organization). The party that wins the bid obtains a permanent right of ownership, but must compensate the loser for the value that the loser placed on the asset.
Although the details of conducting such an auction are best left to investment bankers, basically the auction would require the Canadian government (the Crown) to recognize those with vested interests in the mobile ocean fishery (commercial fishermen) as an “incumbent” class of claimants and British Columbia’s tribes as a “rival” class. Each tribe interested in an exclusive claim to a salmon-spawning river system would create a tribal corporation jointly owned by the tribe and a central British Columbia First Nations holding company. Collectively, the tribes would control the holding company, and each tribe would individually control its own tribal corporation. With the Crown’s mandate, the incumbent class (commercial fishermen) could also be organized as shareholders in a corporation.
After arranging financing, these corporations would then submit sealed bids for the exclusive and perpetual right to control and collect the residual income (the excess above the tribes’ total current fixed claims) from the British Columbia salmon fishery, with the winner paying the loser the amount of its losing bid. (Current fixed claims by Indian tribes would not be threatened or invalidated.)
If the incumbent fishermen were to win the auction, they would pay the amount of the tribes’ losing bid to the tribes and thereafter hold the exclusive right as a group to commercially harvest salmon (which would still be regulated by the government). The tribes would relinquish any residual claim to the ï¬shery beyond their total current fixed claims and would continue with their subsistence fishery.
If the tribes were to win the auction—which is more likely—they would pay the commercial ï¬shermen their losing bid. They could then abolish the mobile ocean fishery, by assigning exclusive stream-based tribal rights to salmon stocks in accordance with each tribe’s traditional lands and subsequent inter-tribal negotiations.
There is no guarantee that the tribes would win the auction. But the reason to expect them to win is that the capitalized returns from husbanding selected salmon stocks in a system of streambased tribal rights would dramatically exceed the returns under the present system, which is based on the rule of capture and a government-regulated open-access fishery.2 Thus, the expected increase in the tribes’ wealth would easily allow them to prevail. The fishermen would be compensated according to their revealed valuation of their residual claim to the British Columbia salmon fishery under its current and expected institutional structure.
Taking the case law at face value, the goal of the Crown is not simply to hand aboriginal peoples an entitlement, but to bring them into the modern era with a reasonable prospect of achieving prosperity through reliance on their distinctive cultural rights. Because tribal ownership of salmon stocks represents the core of these rights, the Crown’s fiduciary duty requires that the tribes be given the opportunity to reclaim them. By compensating incumbent fishermen to voluntarily relinquish their cliams, British Columbia’s tribes can once again aspire to prosperity while contributing to the Commonwealth of Canada.
Boas, Franz. 1966. Kwakiutl Ethnography. Chicago: University of Chicago Press. Codere, Helen. 1950. Fighting with Property: A Study of Kwakiutl Potlatching and Warfare, 1792–1930. American Ethnological Society Monographs 18 New York: J.J. Augustin.
Donald, Leland, and Donald Mitchell.1975. Some Correlates of Local Group Rank among the Southern Kwakiutl. Ethnology 14: 325–46.
Drucker, Philip. 1955. Indians of the Northwest Coast. New York: McGraw-Hill (published for the American Museum of Natural History).
Drucker, Philip, and Robert Heizer. 1967. To Make My Name Good. Berkeley, CA: University of California Press.
Johnsen, D. Bruce 1986.The Formation and Protection of Property Rights among the Southern Kwakiutl Indians. Journal of Legal Studies 15(1):41-67.
———. 2001. Customary Law, Scientiï¬c Knowledge, and Fisheries Management among Northwest Coast Tribes. New York University Environmental Law Journal 10(1): 1–69.
———. 2006. A Culturally Correct Proposal to Privatize the British Columbia Salmon Fishery. In Self-Determination: The Other Path for Native Americans, eds.Terry L. Anderson, Bruce L. Benson, and Thomas E. Flanagan. Stanford, CA: Stanford University Press.
Piddocke, Stuart. 1968. The Potlatch System of the Southern Kwakiutl: A New Perspective. In Economic Anthropology: Readings in Theory and Analysis, eds. Edward LeClair Jr. and Harold Schneider. New York: Holt, Rinehart, and Winston.
Suttles, Wayne. 1960. Aï¬ƒnal Ties, Subsistence, and Prestige among the Coast Salish. American Anthropologist 62: 296–305.
———. 1968. Coping with Abundance: Subsistence on the Northwest Coast. In Man the Hunter, eds. Richard Lee and Irvin DeVore. Chicago: Aldine, 56-68.
———. 1990. History of Research in Ethology. In Handbook of North American Indians 7. Washington, DC: Smithsonian Institution.
1. Throughout this essay, I borrow freely from my earlier work to keep citations to a minimum.
2. The creation of individual ï¬shing quotas could increase the potential value of the present system.
D. BRUCE JOHNSEN is a professor of law at George Mason Law School. This article is based on his chapter, “A Culturally Correct Proposal to Privatize the British Columbia Salmon Fishery,” in Self-Determination: The Other Path for Native Americans, eds. Terry L. Anderson, Bruce L. Benson, and Thomas E. Flanagan.