Author(s): | Harris, Douglas C. |
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Reviewer(s): | Johnsen, D. Bruce |
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).
Subject(s): | Social and Cultural History, including Race, Ethnicity and Gender |
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Geographic Area(s): | North America |
Time Period(s): | 20th Century: Pre WWII |