Fish, Law, and Colonialism: The Legal Capture of Salmon in British Columbia

Published by EH.NET (January 2003)

Douglas C. Harris, Fish, Law, and Colonialism: The Legal Capture of Salmon

in British Columbia. Toronto: University of Toronto Press, 2002. ix + 306

pp. $27.95 (paperback), ISBN: 0-8020-8453-2; $65 (cloth), ISBN: 0-8020-3598-1.

Reviewed for EH.NET by D. Bruce Johnsen, George Mason University School of Law.

This book is the culmination Professor Harris’s graduate research at the

Faculty of Law at the University of British Columbia. Harris clearly took

advantage of his location in writing this carefully researched addition to the

large and still growing scholarly literature on the Northwest Coast tribes. He

draws on government records, statute books, case reports, newspaper reports,

missionary papers, and the secondary anthropological literature to trace the

conflict between Canadian law and the native fishery from roughly 1860 to the

1930s. This is an important piece of research, especially given the Canadian

Supreme Court’s recent decision affirming tribal claims to vast tracts of

Canadian land.

One important question for this review is whether and to what extent Fish,

Law, and Colonialism is a useful source for economic research. The answer

is that for those interested in studying the Northwest Coast tribes it may well

be invaluable, thanks to Professor Harris’s very thorough and very careful

inquiry into the historical record. The story he tells is extremely well

document, and the book contains a long and very useful bibliography.

The second important question is whether economic research on the Northwest

Coast tribes is worth pursuing. Having spent a good portion of my time on this

subject over the past decade and a half, I can confidently say that the tribes

provide a fascinating look into the economics of property rights, evolutionary

psychology, and marine fisheries, among other things. When Europeans arrived on

the Northwest Coast in the late eighteenth century, the tribes had established

exclusive property rights to all but the largest rivers such as the Columbia,

the Fraser, and the Skeena. Lacking effective ocean means to harvest pacific

salmon — the region’s main source of wealth — this allowed them to exclude

others from the salmon stocks that spawned in these rivers. They did not chase

around the ocean after salmon; instead, they waited for the salmon to enter the

rivers on their cyclical spawning migrations and harvested them with fish

weirs, a deceptively sophisticated harvesting technology.

Generations of anthropologists, most of whom have shown little interest in the

tribes’ methods of production or patterns of resource ownership, have

characterized them as “hunter gatherers.” Some, seeing that the tribes were

quite wealthy and economically sophisticated, have gone so far as to

recharacterize them as “advanced hunter gatherers.” These characterizations are

ridiculously simplistic. Salmon are born in a stream, make their way to the

ocean where they grow large, then return to their natal streams to spawn and

die. My research leaves little doubt that the tribes understood the life-cycle

of Pacific salmon and consciously sought to husband their salmon stocks. As I

showed in my 1986 Journal of Legal Studies paper, this was possible due

to their strong system of private property rights enforced through

sophisticated reciprocity relations known as potlatching. Far from being

hunter-gatherers, they were fish farmers.

Here is where the tribes’ use of fish weirs becomes critical, and why Professor

Harris is to be applauded for focusing on the repeated and ultimately

demoralizing conflicts between the tribes and the Canadian state over their

use. With fish weir technology, it is completely plausible that the tribes

engaged in purposeful biological selection of salmon with preferred

characteristics such as larger average size, earlier or later run timing, more

concentrated or more dispersed runs, etc. Native weirs consisted essentially of

a fence stretched across a river with a few gateways leading to holding tanks.

To pass upstream, salmon were forced to enter the holding tanks, where the

native workers by necessity had to select some for harvesting and allow others

to continue their journey. If they harvested the smaller salmon, those

succeeding in spawning would necessarily be larger than average and would give

birth to larger-than-average offspring. If they harvested all the salmon early

in the run and then took down the weir to let the remaining fish continue

upstream, then the next generation would arrive later during the season. This

shows exactly how one would want to manage a salmon fishery in an ideal world.

As Professor Harris shows, however, the actual world is far from ideal. On

reaching British Columbia in numbers, Europeans soon began to build commercial

canneries and to use their net-based technology to trump the natives by fishing

in the ocean or inland estuaries, thereby intercepting the salmon before they

moved upstream. In many cases, whites attempted to use the legal system to

prevent the natives from erecting weirs, claiming that this threatened to wipe

out the salmon. The tribes were not completely powerless in resisting, and on

several occasions Harris documents their surprisingly adept use of the legal

system to their advantage. They certainly made the case publicly and in court

that they had no intention of wiping out the salmon, as evidenced by their long

history of successful weir-based fishery management prior to European arrival.

Sadly, the crush of western civilization, along with its perplexing legal

doctrine that the fishery should be available to all, eventually overwhelmed

the native system, which, in a narrow sense, was clearly superior to the open

access system on which Europeans relied. In understanding native institutions,

Professor Harris is correct in choosing the fish weir, and conflicts over it,

as the focus of this analysis. To an economist, however, his

“colonialism”-based analysis is excessively simplistic and disingenuously

normative. Among mainstream legal anthropologists and historians, a group that

apparently includes Professor Harris, “colonialism” is a euphemism for “the

exploitation of indigenous peoples by western Europeans.” Indigenous peoples

are innocent and good, Europeans are corrupt and evil. Even if this Pollyanna

view of cultural conflict were true – and I’m not buying that it is — it

doesn’t make for an especially penetrating analysis.

I should say that Professor Harris shows modest discomfort with this view of

the world, in which wealth transfer rather than wealth creation drives every

outcome, but he seems powerless to swim against the tide of his discipline. He

notes, for example, that the tribes were at times quite effective in resisting

white intrusions through the court system and even in the public press. But he,

and certainly others in his discipline, accept uncritically statements to the

effect that Europeans used law to wrest resources from indigenous peoples. The

law is thus seen as a shadowy and suspect institution. But, as always,

economists will tend to ask the harder and more interesting question: What was

the next best alternative? Had Europeans not used law to wrest resources from

indigenous peoples, and instead used mob violence or unrestrained hegemony, the

Northwest Coast tribes may have suffered a far more serious fate. What is more,

it was open access as a manifestation of egalitarianism that undermined the

native fishery, and not a system of well defined and enforced private property

rights.

D. Bruce Johnsen is author of “The Formation and Protection of Property Rights

among the Southern Kwakiutl Indians,” Journal of Legal Studies 15: 41-67

(1986).