Coast Salish Property Law: an Alternative Paradigm for Environmental Relationships Russel Lawrence Barsh

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Hastings Environmental Law Journal Volume 12 Article 1 Number 1 Fall 2005

1-1-2005 Coast Salish Property Law: An Alternative Paradigm for Environmental Relationships Russel Lawrence Barsh

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, 41 26- ]. have 1 2 SSAYS SSAYS 243-249 E E ROCEEDINGS RCHAEOLOGICAL ALISH : P A ALISH ALGARY S S THE

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OAST OF

C , C , C This essay focuses 3 Northwest Coast Indigenous AND

UTTLES UTTLES S Cultural Diversity within the Coast ONFERENCE NIVERSITY C THNICITY U AYNE E in THE . 329 (2002). , NNUAL ]; W

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E In different venues, Pacific Northwest venues, Pacific In different IGHTEENTH 2. Ronald L. Trosper, 2. Ronald L. Trosper, 3. The term “sustainability” is often seen and rarely * Harvard Law School, 1974; Director of the Center * Harvard Law School, 1974; Director of 1. Wayne Suttles, E SSOCIATION COLOGICAL THE 44 (1987) [hereinafter S 44 (1987) [hereinafter A Margaret Glass, Scott MacEachern (Reginald Auger, & Peter McCartney eds., 1987) [hereinafter Suttles, Cultural Diversity Institutions that Supported Resilience and Sustainability defined. It is used here to mean a relatively constant, albeit dynamic ratio between humans and the biophysical resources upon which humans depend. Annual fluc- tuations and long-term trends are inevitable, due to the climate at all time scales; dynamic nature of the earth’s between the short (annual) term and the long (millennial) their activities in humans may organize term, however, ways that reduce oscillations in the supply of food, energy and materials, and maintain human populations at relatively constant levels of well-being. anthropologist and linguist Wayne Suttles and linguist anthropologist Trosper economist Ronald and Salish peoples of Puget argued that the indigenous Gulf of Georgia—the Coast Sound and the of the “Salish Sea”— Salish peoples degree of economic stabil- achieved a high sustainability through ity and environmental form of social organi- a distinctive regional and beliefs. zation, law, the Coast Salish legal para- on the nature of Samish Com- for the Study of Coast Salish Environments, Nation), munity Preservation Fund (Samish Indian State Bar Anacortes, WA; member (inactive), Washington Wayne Association. Special thanks are due to Professor on Coast Salish Suttles for his exhaustive pioneering work and his cheerful social organization and human ecology, me. Grate- readiness over the years to advise and correct elders that ful thanks are also due to the Coast Salish the past 30 have discussed values and law with me over Victor years, in particular Mary McDowell Hansen, Isidore Tom, Laura Edwards, Jack Kidder, Underwood Jr., as Sr.; Underwood, and Victor Chet Blackinton, Sr., Sr., Kenneth C. well as my Salish friends and colleagues and Ronald Trosper. Hansen and Sharon Kinley, Salish Continuum E By Russel Lawrence Barsh* Environmental Relationships Environmental

Coast Salish Property Law: Coast Salish Property Paradigm for An Alternative Fall 2005 West

Russel Lawrence Barsh Volume 12, Number 1

Northwest digm and its implications for managing the external to markets).7 A relatively open living resources of the Salish Sea today. An market system structured by Western law appropriate starting-point is clarification of only optimizes the production and con- the nature of the prevailing paradigm of sumption of things that can be secured and environmental law. defended as property, and traded freely in markets. An open market assigns zero price 4 The Western legal paradigm is embed- to externalities and they are consumed with- ded with perverse incentives to consume out price limitation. The classic example of resources faster than they can regenerate. an externality has been the impact on the Some of these subsidies are relatively easy quality of the environment.8 to identify, such as the classification of most fisheries as commons.5 Others are hidden Until recently, externalities have been in the deepest conceptual structures of the target of non-market protection: rules Western law, including the concept of prop- and regulations prohibiting various kinds of erty. Legal systems define what can be environmental degradation. Restrictions of traded in markets, and thereby determine this kind have grown increasingly controver- what people value, acquire, protect and con- sial and unpopular, not in the least because serve.6 In the language of economics, things of the perception that regulatory agencies that cannot be traded, whether for legal or tend to be expensive, inefficient, and inef- innate physical reasons, are externalities (i.e., fective.9 Regulatory mechanisms affect the

4. I use the term “Western” here to distinguish OF THE DESIRABLE SCOPE OF GOVERNMENT 176-184, 196- ideas and institutions that were introduced to North 209 (1970); COASEAN ECONOMICS: LAW AND ECONOMICS AND America by European nations; many Native Ameri- THE NEW INSTITUTIONAL ECONOMICS (Steven G. Medema can scholars prefer terms such as “Euro-American.” ed., 1998). 5. H.S. Gordon, The Economic Theory of a Common 8. Bromley, supra note 7; Tullock, supra note 7, at Property Resource: The Fishery, 62 JOURNAL OF POLITICAL 176-184; Posner, supra note 6, at 33-34 (using wildlife ECONOMY 124, 124-142 (1954); JAMES ARTHUR CRUTCHFIELD as an example); Elinor Ostrom, Property Rights Regimes & GIULIO PONTECORVO, THE PACIFIC SALMON FISHERIES: A STUDY and Common Goods: A Complex Link, in COMMON GOODS: OF IRRATIONAL CONSERVATION 32-36 (1969); WILLIAM E. HALE REINVENTING EUROPEAN AND INTERNATIONAL GOVERNANCE 29-57 & DAG FASMER WITTUSEN, WORLD FISHERIES: A “TRAGEDY OF (Adrienne Héritier ed., 2002); JONATHAN M. HARRIS, ENVI- THE COMMONS?” (1971); RUSSEL L. BARSH, THE WASHINGTON RONMENTAL AND NATURAL RESOURCE ECONOMICS: A CONTEMPO- FISHING RIGHTS CONTROVERSY: AN ECONOMIC CRITIQUE 11-27 RARY APPROACH (2002); IAN R. WILLS, ECONOMICS AND THE EN- (1979); LEE G. ANDERSON, THE ECONOMICS OF FISHERIES MAN- VIRONMENT: A SIGNALING AND INCENTIVES APPROACH (1997). AGEMENT 32, 143-145 (1977); James M. Acheson, The 9. Neoclassical theory suggests that regulatory Lobster Fiefs Revisited: Economic and Ecological Effects of mechanisms are inevitably less efficient and less ef- Territoriality in Maine Lobster Fishing, in THE QUESTION OF fective than markets, because they involve creating a THE COMMONS; THE CULTURE AND ECOLOGY OF COMMUNAL RE- costly bureaucracy to try to do what markets already do SOURCES 37-65 (Bonnie J. McCay & James M. Acheson tolerably well without a bureaucracy: gather informa- eds., 1987). tion about products and deprive cheaters of their busi- 6. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 30-33 ness. Regulation adds additional costly steps to regu- (3rd ed. Aspen Publishers 1986) (1972); UGO MATTEI, lated transactions. Tullock, supra note 7, at 68; Coase, BASIC PRINCIPLES OF PROPERTY LAW: A COMPARATIVE LEGAL AND supra note 7; Ronald H. Coase, The New Institutional ECONOMIC INTRODUCTION 3-6 (2000). Economics, 88 AMERICAN ECON. REVIEW 72-74 (1998); The 7. Ronald H. Coase, The Problem of Social Cost, 3 J.L. Economics of Transaction Costs (Oliver E. Williamson & Scott E. Masten eds., 1999); YORAM BARZEL, PRODUCTIV- & Econ. 1, 1-44 (1960); see also DANIEL W. B ROMLEY, NATURAL ITY CHANGE, PUBLIC GOODS, AND TRANSACTION COSTS: ESSAYS AT RESOURCE ECONOMICS; POLICY PROBLEMS AND CONTEMPORARY ANALY- THE BOUNDARIES OF MICROECONOMICS (1995); see also Russel SIS (1986); HUGH H. MACAULAY & BRUCE YANDLE, ENVIRONMEN- L. Barsh, The Red Man in the American Wonderland, 11 TAL USE AND THE MARKET 27 -29, 39-45 (1977); GORDON Human Rights 14-17, 36-44 (Winter 1984) (transac- TULLOCK, PRIVATE WANTS, PUBLIC MEANS: AN ECONOMIC ANALYSIS tion cost analysis of Indian Affairs regulation).

2 West Northwest TH 3 18 They 12 TO

11 ERSPECTIVE TH P 151 (C.B. , 15 HE Coast Salish Property Law Coast Salish Gordon Tullock, Brazil—Export Financing EVIATHAN APITALISM C see also , Live Swine from Canada: , L AND

See, e.g. OBBES H , WT/DS70/AB/R (Aug. 2, 1999), para- IVILIZATION : C HOMAS The ethos of materialism asserts The ethos of materialism ORLD 623-625 (Siân Reynolds trans., 1984) (capi- 13 Market correction mechanisms draw Market correction W note 7, at 33; Fernand Braudel, T note 7, at 33; Fernand Braudel, 13. T THE

ENTURY C talism as a culture). the World Trade Organization in Program for Aircraft action graphs 7.13 and 156, to prohibit any government exporters. or rule that confers an advantage on domestic The U.S. has applied the same broad principles to NAFTA disputes with Canada. forcement costs (“transaction costs”). costs (“transaction forcement multilateral the risk of violating also run the by treaties administered open market regional bod- and Organization Trade World create any prefer- if they ies such as NAFTA, domestic producers. ential effects for ethos of human rational- upon a particular Western but has long ity that is historically as universal psychological been advanced truth. motivated, above all, to that humans are achieve this, they wealth. To amass material mate- must control the means of producing centuries rial, which have changed over the capital from land (agrarianism); to financial and mechanical technology (industrializa- of in- tion); to financial options and control formation (the post-industrial “weightless” humans economy). Being inherently selfish, will not part freely with their accumulated as material wealth (means of production therefore well as products). The state must the exercise counteract selfishness through as Hobbes of centralized, coercive power, Preliminary Results of Countervailing Duty Administra- tive Review, 61 Fed. Reg. 52,426 (Oct. 7, 1996); Notice of Final Affirmative Countervailing Duty Determination and Final Negative Critical Circumstances Determination: Certain Softwood Lumber Products from Canada, 67 Fed. 2, 2002). Reg. 15,545 (Apr. MacPherson ed., Penguin Books 1968) (1651) (“The Value, or WORTH of a man, is as of all other things, so much as would be given his Price; that is to say, for the use of his Power.”); supra OF - 10 HE F. RO THE

: T OCIAL P ESULTS OF

S (1980) R A Social ANUEL OF

HE GENCIES EETING A EGOTIATIONS note 10; Ken- M CONOMICS ARADOX N E P OF 279, 282-84 (2002). HE

supra RADE NNUAL T : T AW A EGULATORY L TH R A Difficulty in the Concept of 389, 389-403 (William J. 96 AN HILOSOPHY HEOREM , C T P THE ULTILATERAL

S ’ OF THE M note 7; Russel L. Barsh,

sources cited OF IN TIGLER NTERNATIONAL

CONOMICS RROW I see supra OF E , A J. S

TUDY ? 6 (1971); The Essence of Stigler 243- OUND The Organization of Economic Activity: Issues AY S , 58 Journal of Political Econ. 328-346 R K ROCEEDINGS AC (Geneva: GATT, 1994), interpreted broadly by 1994), (Geneva: GATT, ASE EORGE OCIETY ELFARE P S RUGUAY in EXTS W , F. M : A C & G The search for an alternative paradigm The search for an ONSUMERS T U in 12. Especially under the Subsidies and 10. Coase, 11. Kenneth J. Arrow, C , THE

OHEN LFRED MERICAN HOICE EGAL Countervailing Measures (SCM) Agreement, T OF L Theory of Fair Trade, with Special Reference to Indigenous Theory of Fair Trade, Peoples Baumol & Charles A. Wilson eds., 2001); M TECT 264 (Kurt R. Leube & Thomas Gale Moore eds., 1986); A C A Social Welfare “Impossi- (1950) (The original statement of Arrow’s bility Theorem”); neth J. Arrow, C Pertinent to the Choice of Market versus Nonmarket Alloca- tion Both of these approaches invite criticism Both of these approaches invite theorem that mar- under Kenneth Arrow’s than the ket corrections always cost more they market failures they address, because and en- involve additional administrative of environmental law has largely focused on of environmental corrections”: (1) mar- two kinds of “market externali- ket mechanisms that internalize ties so that they become supply-con- fishing area strained, such as transferable transferable pollution rights, quotas (TAQs), and (2) or green certification or labeling; through simulating supply-side constraints resources. taxes on the consumption of price of property by restricting its use. In its use. property by restricting price of create a second- this may certain instances environmental for the regulated ary market of a the owners For example, attributes. only realistically sell their Superfund site can that is in the business property to an entity for which federal law of decontamination, subsidies. As a general also provides direct mechanisms regulatory principle, however, markets. do not harness Fall 2005 West

Russel Lawrence Barsh Volume 12, Number 1

Northwest argued so influentially in Leviathan.14 States ally must be forced to do any good for oth- may nonetheless differ in matters of policy, ers—even for their own children.18 giving greater or lesser freedom to individuals’ pursuit of material wealth. It may be argued that Western materialist psychology reproduces itself through For centuries, great philosophical divi- the globalization of Western military and sions within the West have played out within economic power. When one party holds this shared paradigm. Early liberals such most of the cards, everyone learns to play as Locke and Rousseau conceded the ne- by that party’s rules, lest they be excluded cessity of coercive power while insisting that from the game. People do not fail because power must be legitimately constituted by they are inherently defective (the argument collective consent, or contract, while con- of “social Darwinism”) but rather because servative monarchists dismissed the origi- they try to play a different game. The strong nal source of a prince’s power as irrelevant.15 make the rules, and for the rest, it is a test Mercantilists and early capitalists argued of survival of the best imitators.19 that the state was intruding too much in private economic decisions, thereby stifling The Western materialist paradigm is trade and innovation.16 On the other hand, contested (albeit weakly) within the West by communists reacted to the excesses of early the more extreme Judeo-Christian religious nineteenth century industrialization by ar- tendencies, and it is challenged globally by guing that the only way to manage human non-Western religions and by the 20 21 selfishness is complete state ownership of worldviews of tribal, segmentary, or the means of production.17 Today, North “stateless” societies that either lack central- American Republicans, Democrats, and (in ized power or eschew its exercise. At the Canada) Liberals and Conservatives con- level of the international community repre- tinue to argue about the use of state power, sented by the United Nations, it is easy to but they share the assumption that human find expressions of spirituality and environ- beings are selfish materialists who gener- mentalism; one such example may be found

14. HOBBES, supra note 13, at 364-368; see also recent emergence of the “faith-based” paradigm in IMMANUEL WALLERSTEIN, THE MODERN WORLD SYSTEM: CAPITAL- U.S. politics, which draws upon Judeo-Christian spiri- IST AGRICULTURE AND THE ORIGINS OF THE EUROPEAN WORLD- tual traditions of personal sacrifice and service. How- ECONOMY IN THE SIXTEENTH CENTURY 144-145 (1974); FERNAND ever, it is premature to conclude that the trend towards BRAUDEL, CAPITALISM AND MATERIAL LIFE, 1400-1800 444- deregulation and redistribution of tax burdens in Con- 445 (Miriam Kochan trans., 1973). gress is driven by confidence in human kindness, or 15. Social Contract Theory (Michael Lessnoff (more likely) a more selfish desire to protect the purses ed., 1990); Social Contract: Essays by Locke, Hume, of the more fortunate amongst us. and Rousseau (Ernest Barker ed., 1948). 19. SIR RABINDRANATH TAGORE, NATIONALISM 38-39 16. Jacob Viner, English Theories of Foreign Trade Be- (1917). fore Adam Smith, 38 JOURNAL OF POLITICAL ECON. 404, 432- 20. Tribal societies are organized around kin- 436 (1930). ship rather than residence or citizenship. See ESSAYS ON THE PROBLEM OF TRIBE (June Helm ed., 1968); JOHN H. 17. VLADIMIR I. LENIN, THE STATE AND REVOLUTION 84 (International Publishers 1943) (1917) (“The whole MOORE, THE CHEYENNE NATION: A SOCIAL AND DEMOGRAPHIC of society will have become one office and one fac- HISTORY 7-14 (1987). tory, with equal work and equal pay.”). 21. Segmentary societies are comprised of many small autonomous groups such as clans or villages. 18. ROBERTO M. UNGER, KNOWLEDGE AND POLITICS 152- 153 (1975); Vine Deloria, Jr., Circling the Same Old Rock, in See JOMO KENYATTA, FACING MOUNT KENYA: THE TRIBAL LIFE OF THE GIKUYU 179-189 (1965) (describing the Kikuyu gov- MARXISM AND NATIVE AMERICANS 113-136 (Ward Churchill ed., 1983). An exception could be claimed for the ernment).

4 West Northwest : : - - UNE ASH PPER Cen- 169 5 MERI ILLIAM J NDIANS W U Sally I (1960); 1 A It also HE 24 41 (1974) in 26 : T 28 ONTEMPORARY NTHROPOLOGY ULTURE MERICAN ORTHWEST and Wayne Coast Salish Property Law Coast Salish C (1974); W NDIANS A PIRITS & C I N & A 25 S See generally AW OF ]. Other important

AW The Nature and Spirit of WANA ORTH ]; Wayne Suttles, ALISH THE T

N , 10 Am. Indian Q. 181 ECHTSANTHROPOLOGIE S (unpublished Ph.D. dis- OF OF OF

, 40 L , 6 L

ASHINGTON NDIANS I OAST The Economic Life of the Coast Navajo Tribal Courts, Property Navajo Tribal W FÜR

: C ALLEY UMMI Economic Life ANDBOOK L TRUCTURE , V UMI Microfilm No. 61-1905. ESTERN S HE on 453-475 (William C. Sturtevant ed., 7 H 7 AHRBUCH

W HE Central Coast Salish , T , Russel L. Barsh & James Youngblood , Russel L. Barsh, J in OF , OLLINS

, T Tribal Courts, the Model Code, and the Police Tribal OAST THNOHISTORY TERN C and comparisons of Native Ameri- C E 25 (1976). 27 See, e.g. See, e.g. J. S NDIANS (1934). I microformed ORMICK NDIAN LMENDORF 27. 28. 26. Wayne Suttles, I C C ORTHWEST ERNARD KAGIT ROBLEMS NTERNATIONALES sertation, University of Washington, 1951) sertation, University of Washington, 1951) [hereinafter Suttles, I (1991). Salish of Haro and Rosario Straits CAN Sound) [here- 1990) (overview of the cultures of Puget inafter Suttles, M S W. E B INGTON Henderson, Idea in American Indian Policy P North American Political Systems (1986); Russel L. Barsh, Snyder, who worked in the Central and North who worked Snyder, and Straits-speak- Sound with Lushootseed the 1950s; ing peoples in in the North Sound, Suttles, who worked Strait with both Island and Georgia Vancouver peoples Straits and Halkomelem-speaking from the 1940s to his death in 2005. of West- draws upon previous critical studies ern law can and Western legal paradigms. ton), tral Coast Salish N published Coast Salish ethnographies have been law to as well, although none explore customary the extent that Suttles did. 1940-1972 and Probate Law, heritance. It draws chiefly on the work of three It draws chiefly heritance. the fieldwork among who conducted scholars living in the Salish Salish peoples major Coast century: early to mid-twentieth Sea in the who worked with Ernst Haeberlin, peoples of the South Lushootseed-speaking in the 1910s; and Central Sound , - IN

A. OLI AND

AW : P AW L DAMSON OSPISIL IO TUART L A and its R ASE but it is AT 22

J. P C 23 IRURAY DWARD AND

T UMMIT S EOPOLD & E (1958); S 19-21, 76-81 (1997). ARTH AW ONFLICT E L : C HE RADITIONAL LEWELLYN AY , T ; T HEIR (1941); L NVIRONMENT W T E N. L ANJABI USTICE AND THE ARL

J , K AND HEYENNE K.L. P , C IRURAY APUANS URISPRUDENCE HE ANEE , T . at 317-322 (reproducing the “Principles on . at 317-322 (reproducing the “Principles (1970). J See, e.g. P , T id

This essay is not an original ethnogra- This essay is not CONOMICS 24. Haeberlin’s original field notebooks have original field notebooks Haeberlin’s 24. field notes and transcripts have been 25. Snyder’s 22. R 23. , E ORALITY OEBEL APAUKU RIMINAL CHLEGEL K S H C M been preserved at the National Anthropological Ar- chives, National Museum of Natural History, Smithsonian Institution, Washington DC [hereinafter Haeberlin notes]. Each notebook is numbered and paginated. preserved in the Melville Jacobs Collection, Univer- sity of Washington Libraries, Seattle [hereinafter Snyder notes]; scholarly access is restricted. Notes are arranged by box and folder (e.g., 108(2) is box only work 108, folder 2) and are paginated. Snyder’s drawing on this rich body of original material was her doctoral dissertation at the University of Wash- Skagit Society and its Existen- ington. Sally Snyder, tial Basis: A Folkloristic Reconstruction (1964) (unpublished Ph.D. dissertation, University of Washing- TICS See also by United Environment and Development” adopted Nations Member States at the Earth Summit). institutional offspring. Yet Member States Member Yet offspring. institutional the same materialistic continue to employ to protect the environ- concepts and tools it at all—regardless ment—if they protect cultural and religious dif- of their expressed observer may well ask ferences. A critical any genuine, alternative whether there is that goes beyond approach to development mere words. phy of a traditional legal system, in the river of official documents emanating of official documents in the river Conference 1992 United Nations from the and Development on Environment Fall 2005 essential instead an effort to synthesize the principles and reasoning of a non-Western with system of property law for comparison legal in- the underlying spirit of our Western West

Russel Lawrence Barsh Volume 12, Number 1

Northwest I. THE COAST SALISH WORLD scale (e.g., the El Niño Southern Oscillation) or over several centuries (warming and cool- A. Biophysical setting ing trends generally accompanied by 32 The Salish Sea is a network of drowned changes in precipitation and sea level). valleys or troughs between two relatively Glacial scouring and early postglacial young mountain ranges, the Cascades and floods probably obliterated any evidence of the Olympics. During the last glaciation of pre-glacial human activity in the Salish Sea. the Northwest region, the Vashon stade (ca. The earliest documented human occupa- 29 15,000-12,000 Before Present (“BP”)), a tions of the area are roughly 9,000 BP.33 The mile of ice covered most of what today is biophysical world of these postglacial an- 30 the Salish Sea. The weight of the ice sheet cestors of the Coast Salish was very differ- depressed the earth’s crust by as much as ent from the present-day Salish Sea land- several hundred feet relative to its pre-gla- scape. Climate continued to grow warmer cial contours. As the ice melted, the crust and drier as the land re-emerged from the rebounded at a decelerating rate. The land ice and then from the sea. Mosses and li- continues to rise slowly. Combined with the chens gave way to herbaceous meadows, dynamic plate tectonics and volcanism of and eventually gave way to deciduous for- the Pacific Rim as a whole, isostatic crustal ests dominated by oak and maple trees.34 rebound contributes to a highly dynamic Cedar and other familiar Pacific Northwest physical environment in the Salish Sea, in conifers were relatively late arrivals, appear- which bays, beaches, rivers, and islands ing only after the shift to cooler and wetter appear and disappear over the centuries— conditions about 4,000 BP.35 The early post- sometimes, in the case of a major earth- glacial landscape resembled today’s central 31 quake or a tsunami, within minutes. Cli- California coast, and archaeological evi- mate oscillation is an additional dynamic dence suggests that early postglacial inhab- force, whether it is operating at a decadal itants of the Salish Sea relied heavily on

29. Biologists and geologists reference age us- K. STEIN & LAURA S. PHILLIPS, VASHON ISLAND ARCHAEOLOGY; A ing the terms “Kya” (thousands of years ago) and “Mya” VIEW FROM BURTON ACRES SHELL MIDDEN (2002), and DALE R. (millions of years ago) while archaeologists gener- CROES, THE HOKO RIVER ARCHAEOLOGICAL SITE COMPLEX (1995) ally use the abbreviation BP (“before present”). The with ALAN D. MCMILLAN, SINCE THE TIME OF THE TRANSFORMERS: archaeological reference system is adopted here. THE ANCIENT HERITAGE OF THE NUU-CHAH-NULTH, DITIDAHT, AND MAKAH 109-130 (1999) (discussing the Nootkan speak- 30. ROBERT BURNS, THE SHAPE AND FORM OF PUGET ing Coastal peoples immediately to the west of the SOUND 39-44 (1985); ARTHUR R. KRUCKENBERG, THE NATU- Salish Sea). RAL HISTORY OF PUGET SOUND COUNTRY 20-23 (1991); THO- MAS A. TERICH, LIVING WITH THE SHORE OF PUGET SOUND AND 34. Frequent fires favor deciduous trees and her- THE GEORGIA STRAIT 3, 6-9 (1987); JOHN DOWNING, THE baceous meadows in the Northwest, while fire sup- COAST OF PUGET SOUND: ITS PROCESSES AND DEVELOPMENT 2- pression tends to produce oligarchic coniferous for- 4 (1983). ests. Jennifer S. Turner & Pamela G. Krannitz, Conifer 31. Kruckenberg, supra note 30, at 18-19; Down- Density Increases in Semi-Desert Habitats of British Columbia ing, supra note 30, at 4-5; Terich, supra note 30, at 8. in the Absence of Fire, 75(2) NW. SCI. 176-182 (2001); DONALD W. SPURBECK & DAVID S. KEENUM, WENATCHEE FORESTRY SCI. LAB, 32. On climate oscillations, see Vaclav Smil, THE FIRE HISTORY ANALYSIS FROM FIRE SCARS COLLECTED AT ICEBERG EARTH’S BIOSPHERE: EVOLUTION, DYNAMIC, AND CHANGE 251-256 POINT AND POINT COLVILLE ON LOPEZ ISLAND, WASHINGTON STATE (2002). On sea level rise, see id. at 128; Downing, supra (2003); see generally JAMES K. AGEE, FIRE ECOLOGY OF PACIFIC note 30, at 4-5; Terich, supra note 30, at 9-10. NORTHWEST FORESTS (1993); JERRY F. F RANKLIN & C. T. DYRNESS, 33. Compare JULIE K. STEIN, EXPLORING COAST SALISH NATURAL VEGETATION OF OREGON AND WASHINGTON (rev. ed., PREHISTORY; THE ARCHAEOLOGY OF SAN JUAN ISLAND 16-19 Oregon State University Press 1988) (1973). (2000) [hereinafter STEIN, COAST SALISH PREHISTORY], JULIE 35. STEIN, COAST SALISH PREHISTORY, supra note 33, at 21.

6 West Northwest 42 7 , 27 J. , 27 795 (2000) note 33, at 17- Coast Salish Property Law Coast Salish CIENCE 43 supra Dana Lepofsky, , See note 2, that there was , 290 S , 290 REHISTORY supra Assessing Variability in Northwest P ALISH Between 4,000 and 2,500 Between 4,000 , 50 Evolution 401, 401-416 (1996); S 41 note 30. note 36. . 725 (2000) (providing evidence of con- CI OAST S The expansion of coniferous for- of coniferous The expansion , C 40 , while I think it more likely involved taking TEIN Aubrey Cannon, See supra See supra Bruce. P. Finney, Irene Gregory-Eaves, Jon. Finney, Bruce. P. id. Two, possibly three, new technologies three, possibly Two, 40. 41. 42. S 43. My interpretation of the archaeological but see RCHAEOLOGICAL 20; Sampling of Coast Salmon and Herring Fisheries: Bucket-auger Shell Midden Sites on the Central Coast of British Columbia A advantage of new forms of abundance that resulted from the change in climate regime. We nevertheless both agree with Trosper, little fundamental change in Coast Salish environmental relationships from 2,500 to 250 BP. (attempting to tease apart the climate and human ef- (attempting to tease apart the climate Sound). fects on salmon in Alaska, not in Puget tinued diversity of subsistence regimes in the region). record is somewhat different than proposed by my colleague Dana Lepofsky. Ecological Resilience, and Culture Biocomplexity, Change (February 16, 2004) (unpublished paper presented at the American Association for the Advance- ment of Science 2004 Annual Meetings, on file with author). Lepofsky views the emergence of a regional network of villages as response to climate-induced stress, ests probably reduced the supply of terres- reduced the ests probably the distribution and changed trial mammals for the ancestors of Coast of food plants while the cooling of rivers Salish peoples, of shorelines made the sea and stabilization of relatively accessible fish more productive and shellfish. of in- there is archaeological evidence BP, marine resources, as well tensified use of of cedar carpentry. as the development of increasing long There is also evidence suggesting the growth of distance trade, socioeco- permanent villages and of strong nomic ties between villages. large facilitated the growth of population, Oncorhynchus nerka) see also Smol, Douglas, & John P. Sweetman, Marianne S. V. Pacific Salmon Impacts of Climatic Change and Fishing on Abundance Over the Past 300 Years helping to stabilize shorelines and shorelines to stabilize helping beaches. , - - A OF 36 in

, N OAST RADI supra URNER C OAST : T ANADIAN AND

C J. T C IVING Keeping It OF

L ANCY T Solving the Pe- I (1991); Sandra ORTHWEST OODS SE ORTHWEST ); Wayne Suttles, IODIVERSITY : N F U N B EEPING Cultural Antecedents IVING AND Salmon, which K LANT THE

, L in P T NDIANS 38 , ON “Just Like a Garden” Tradi- I I

Intensification of Food Pro- OTANY , B EEPING MERICAN RADITIONAL ULTIVATION , at 181-193. A , T C 37 UTRITION Cooler conditions also sta- (“blue” or “common” camas) and (“great” camas), as well as tiger lily, (“great” AND : N ORTH 39 supra

, N SE 101-150 (Douglas Deur & Nancy J. Turner note 38, at 67-100; Kruckenberg, UHNLEIN U OF

(Paul E. Minnis & Wayne J. Elisens eds., IVING EOPLES . at 21; Roy L. Carlson, P L V.K Id LANT T supra MERICA I P Several factors caused profound Several factors A MERICA OF 38. Kenneth M. Ames, & Chris C. Wood, Chris J. Foote 39. Eric B. Taylor, 37. Salish Sea peoples used two species of camas, 37. Salish Sea peoples used two species 36.

ANDBOOK ARRIET A ORTH H EEPING NDIGENOUS duction on the Northwest Coast and Elsewhere, in Living, Coast Salish Resource Management: Incipient Agriculture? note 30, at 24-25. Molecular Genetic Evidence for Parallel Life-history Evolution within a Pacific Salmon (Sockeye Salmon and Kokanee, N eds., 2005) (hereinafter K K tional Resource Management and Biodiversity Conservation on the Interior Plateau of British Columbia, in TIVE TIONS & H I L. Peacock & Nancy J. Turner, & Sandra Peacock, 2000); Nancy J. Turner rennial Paradox: Ethnobotanical Evidence for Plant Resources Management on the Northwest Coast 60, 65 (William C. Sturtevant ed., 1990). Camassia quamash Camassia leichtlinii in fern, and many other brodiaea, bracken chocolate lily, have grown members of meadow communities that and Euro- scarcer since the introduction of livestock N pean grasses in the nineteenth century. bilized the polar ice sheet and cordilleran bilized the polar ice sheet and levels and glaciers, slowing the rise of sea changes in the human ecology of the Salish changes in the human the climate grew cooler As Sea of 5,000 BP. to invade oak conifers began and wetter, threatening the sup- forests and meadows, foods. ply of wild plant proliferated rap- cannot tolerate warm water, colonizing a growing number of rivers idly, and streams. hunting terrestrial and marine mammals. terrestrial and marine hunting of took advantage that they also It is likely plants, gathering abundant food naturally forests (like more the growing oak acorns in Indians) and digging up the recent California flowering meadow plants starchy bulbs of such as camas. Fall 2005 West

Russel Lawrence Barsh Volume 12, Number 1

Northwest settlements, and extensive trade ties: large Samish Indian reef-net fishermen interviewed scale fishing operations; food and plant culti- in 1895 reported landing up to several thou- vation; and, possibly, clam harvesting. sand sockeye salmon on each turn of the Salmon follow distinct migration paths, mak- tide.48 Once cleaned, split, and dried in the ing it possible to harvest very large numbers summer sun, such abundance could last the of salmon with relatively little effort by placing winter and be traded widely without spoiling. a substantial barricade of some kind in their Hence, the florescence of Coast Salish culture way, such as a trap or weir.44 Building such a can be attributed at least in part to industrial- structure depended on mobilizing a consider- scale fishing technology. able amount of labor. Locating, installing, and operating it successfully demanded special- The second new technology was culti- ized individual expertise, particularly in the vation; strictly speaking, a system of shift- 49 case of the Northern Straits Salish (San Juan ing horticulture using fire, weeding, and and Gulf Islands) reef-net.45 Reef-nets were hoeing to promote the growth of food (and still are) set in deep nearshore rip chan- plants. As conifer forests engulfed oak for- nels, where the movements of the fish are pre- ests and meadows, Coast Salish people dictably guided by currents and tides.46 Until learned to set clearing fires that killed coni- the twentieth century, the large nets were wo- fer seedlings, suppressed the growth of un- ven of cedar and nettle twine, which was a desirable grasses and herbs, and recycled 50 laborious task but yielded a durable product.47 nutrients. Frequent burning would have

44. Compare Russel L. Barsh, The Economics of a Fishery Commission.” NARA Record Group 22, Entry Traditional Coastal Indian Salmon Fishery, 41 HUMAN ORGA- 44: “Records of the Joint Committee Relative to the NIZATION 171 (1982) with Ashahitaro Nishimura, Cul- Preservation of the Fisheries in Waters Contiguous tural and Social Change in the Ownership of Stone Tidal Weirs, to Canada and the United States, 1893-95,” Boxes in MARITIME ADAPTIONS OF THE PACIFIC 77-88 (Richard W. 22-23 (four bound volumes of typed transcripts of Casteel & George I. Quimby eds., 1975) (Japanese interviews with Dick Edwards and Joseph Cagey). customary use of weirs and customary fishing rights). 49. Horticulture refers to gardening that packs a di- 45. Suttles, Economic Life, supra note 26, at 152-180; versity of useful plants into a very small space, rather than DANIEL BOXBERGER, TO FISH IN COMMON: THE ETHNOHISTORY OF LUMMI growing a single crop (a “monoculture”) over a very large INDIAN SALMON FISHING 14-18 (Univ. of Washington Press area. Agriculture is land-intensive and when mechanized, 1999) (1989); Russel L. Barsh, Northern Straits Salish energy intensive, while horticulture is relatively labor-in- reef netting as habitat enhancement: Human coupling tensive. Roy A. Rappaport, The Flow of Energy in an Agricul- of upland and aquatic ecosystems in the Salish Sea (Feb- tural Society, 225 Sci. Am. 117, 117-132 (September 1971). ruary 16, 2004) (unpublished paper presented at the 50. On the instrumental use of fire to alter North- American Association for the Advancement of Science west forest ecosystems, see generally ROBERT BOYD, INDI- 2004 Annual Meetings, on file with author). ANS, FIRE, AND THE LAND IN THE PACIFIC NORTHWEST (1999). For 46. Interview with Cleve Vandersluys, in Friday the archaeology of Coast Salish burning, see Dana Harbor, WA (Jan. 28, 2004,) (Vandersluys set reef-net Lepofsky, Emily. K. Heyerdahl, Ken Lertzman, Dave anchors for the fleet in the 1940s-1950s); interview Schaepe & Bob Mierendorf, Historical Meadow Dynamics with Malcolm Lee, in Shaw Island, WA (Aug. 12, 2002) in Southwest British Columbia: A Multidisciplinary Analysis, (Lee was a highly successful “watcher” on reef-net 7(3) CONSERVATION ECOLOGY 5 (2003), available at http:// boats for 18 years). Unlike river traps and weirs, which www.consecol.org/vol7/iss3/art5 (last visited Sep. 26, take advantage of the confinement of migrating 2005); Dana Lepofsky, Douglas Hallett, Ken Lertzman, salmon by the banks of the stream, reef netting takes Rolf Mathewes, Albert (Sonny) McHalsie, & Kevin advantage of the fact that migrating salmon follow Washbrook, Documenting Precontact Plant Management on invisible underwater currents. the Northwest Coast; An Example of Prescribed Burning in the 47. Suttles, Economic Life, supra note 26, at 234-237. Central and Upper Fraser Valley, British Columbia, in KEEPING IT LIVING, supra note 37, at 218-239. For a broader geo- 48. Richard Rathbun, “Fraser River & Puget Sound, graphical perspective, see Fire, NATIVE PEOPLES, AND THE 1895; Interviews & Field Notes; Investigation by Joint NATURAL LANDSCAPE (Thomas R. Vale ed. 2002).

8 West Northwest 9 Dou- See Whether 56 note 26, at 65- Coast Salish Property Law Coast Salish can apply to 59 supra , 58 note 38, at 296-327. Assuming that clam gar- Assuming that Economic Life 57 [L] “in-law”)

supra , [L] “relative or friend” (compare IVING Suttles,

Tending the Garden, Making the Soil: Northwest the Garden, Making the Soil: Tending L T See I s’yá?ya? The Coast Salish world was an ocean The Coast Salish world was an Fixed gear fisheries, camas cultivation, w 57. 58. Unless otherwise stated, the “ethnographic When Coast Salish terms are introduced, 59. e x EEPING

glas Deur, glas Deur, Coast Estuarine Gardens as Engineered Environments, in K of actual and potential relatives. One term, of actual and potential relatives. s’yá?ya? c of everyone that has a social connection Coast Salish people also constructed “clam people also Coast Salish but it seems plau- is not known, gardens” Coast Salish because northern sible, if only direct contact with Kwakiutl villages were in in large quantities from and harvested clams similar habitats. widespread in the Salish Sea, dens were more a means of greatly in- they also represent by combining technical creasing production and alignment of rock jet- expertise (design to meet high labor de- ties) with the ability hoeing, harvesting). mands (construction, important and clam gardens share a third consistent characteristic: all benefit from sites on supervision or control of specific words, the land or in the sea, or in other something akin to ownership. B. The Social Universe Clam Gardens Ocean Research, University of Victoria, Pre-contact, of the Broughton Archipelago: A Case for Strait (Dec. Large-scale Mariculture in Queen Charlotte 14, 2005). Douglas Deur has also reported the use of rock jetties by Kwakiutl to create wetland gardens for the production of food and medicinal plants. 69. The author has surveyed parts of the San Juan Islands for clam gardens at the suggestion of John thus far unsuccessfully. Harper, present” here is the nineteenth century Coast Salish world described to observers 50-150 years ago. The to a spirit behind these practices persists today, greater extent than the practices themselves. they are followed by [L] for Lushootseed and [S] for northern limit of the Salish Sea. limit of the Salish northern - 55 53 NTHRO A C. quamash ORTHWEST note 26, at 65-69; at note 50. , 32 N supra , In any event, camas supra 54 (Baker) Wats., 133 (1998). Camas dries and stores Camas note 37. 51 The Ethnohistory and Archaeology of OTES N supra Economic Life sources cited Recent research indicates that ESEARCH 52 R See Camassia leichtlinii Investigations of a possible third tech- Investigations of a possible third note 25, at 108(2): 90, 109(2): 55, 109(3): 92. 56. John Harper, President, Coastal and Ocean Re- President, 56. John Harper, 53. Brenda R. Beckwith, The Queen Root of this 51. 52. Suttles, 54. Sally Snyder collected evidence of transplant- 55. Suttles, POLOGICAL sources, Inc., Presentation at the Center for Earth and Clime: Ethnoecological Investigations of Blue Ca- mas ( Shellfish Utilization in Puget Sound William R. Belcher, William R. Belcher, Kwakiutl people built long rock jetties to Kwakiutl people built long rock beaches on protect and enlarge their clam at the the Broughton Archipelago, located nological innovation have only just begun. nological innovation have only on a large Clam harvesting, drying, and trade and scale was reported by early explorers century. practiced well into the twentieth (Pursh) Greene; Liliaceae) and its Landscapes on Southern Vancouver Island, British Columbia (2004) (unpublished Ph.D. dissertation, University of Victoria) (on file with the University of Victoria). ing camas from mossy “balds” (rock outcrops) in the islands to gardens close to settlements. Snyder notes, supra Coast Salish camas gardens were observed Coast Salish camas but the nineteenth century, and described in intensely cultivated and it is not clear how extensive they were. scale pro- could be produced on a very large local exper- vided that there was sufficient tise (burning) and adequate peak-season labor (hoeing, weeding, harvesting). annual hoeing and periodic burning would annual hoeing and significantly and sup- have increased yields camas production. ported large-scale maintained oak savanna, parkland maple oak savanna, maintained thereby and open meadowlands, forests, as habitat as well deer and elk promoting gardens. space for as potatoes; once roasted at least as well it can be stored even and caramelized, longer. Fall 2005 West

Russel Lawrence Barsh Volume 12, Number 1

Northwest some kind with the speaker. The fundamen- lated. The question in Coast Salish law was tal ethos of social life was accumulating more generally not whether two people are related, friends and socializing with more of the uni- but the quality or strength of their connec- verse around us.60 Friends were made by: tions to a particular ancestor. This may de-

61 marriage; initiation into the “smokehouse” terminee which of them had a better claim together; business partnerships, such as joint (st’áy d [L]) to something of value. ownership of a fishing site or trade broker- age;62 the giving of a name; and, alliances The Coast Salish social world extended between families forged in the feast hall. beyond humans to other visible, as well as Coast Salish kinship was broad, inclusive, invisible, beings. People formed relation- gender-blind, and unconcerned with biologi- ships with (visible) animals such as dogs, cal descent, unlike Western kinship with its which were often given names and lived in 65 historical emphasis on patrilineal ancestry human houses. They also formed relation- and inheritance, and its more recent focus ships with powerful “wild” animals such as on the nuclear family.63 Coast Salish kinship killer whales, cougars and wolves, which were may seem paradoxical. People went to ex- also sometimes raised at home as evidence 66 traordinary lengths at social gatherings to of a person’s power. Invisible beings in- recount, explain, compare, and sometimes cluded: the spirits of all the humans and ani- debate their individual ancestries,64 which in mals that had lived before (skáyu [L] the end demonstrated that they were all re- “ghosts”); beings that could confer gifts of

Northern Straits. These adjacent Coast Salish languages people wanted dried meat. The Swinomish never are mutually unintelligible; however, there are cognates journeyed upriver farther than Mount Vernon since in all Coast Salish languages. See LUSHOOTSEED DICTIONARY they could not handle shovel-nose canoes, and (Dawn Bates, Thomas Hess, & Vi Hilbert eds., rev. ed. the river was much swifter then. 1994) (Coast Salish language of South-Central Puget Snyder notes, supra note 25, at 108(5): 8 (Inter- Sound). There currently is no comparable work on Straits view with Amelia Dan). Salish, although the first comprehensive work on the 63. FERNAND BRAUDEL, AFTERTHOUGHTS ON MATERIAL CIVI- Halkomelem language of the lower Fraser River and LIZATION AND CAPITALISM 68-71 (Patricia M. Raynum trans., southern Vancouver Island is in press. WAYNE SUTTLES, 1977); Elsie Clews Parsons, The Family 327-336 MUSQUEAM REFERENCE GRAMMAR (forthcoming 2006). (1906). No less a figure than Alexis de Tocqueville 60. SUTTLES, COAST SALISH ESSAYS, supra note 1, at 20. recognized the relationship between inheritance 61. On the smokehouse religion and its signifi- laws, family structure, and the emergence of capital- LEXIS cance in Coast Salish cultural life see PAMELA AMOSS, ism and liberal democracy in Western society. A DE OCQUEVILLE EMOCRACY IN MERICA COAST SALISH SPIRIT DANCING: THE SURVIVAL OF AN ANCESTRAL T , D A 51-54 (J.P. Mayer RELIGION (1978); Russel L. Barsh, Banishing the Spirits: ed., George Lawrence trans., 1969). Indian Agents and the Pacific Northwest Winter Dance Reli- 64. In this respect, Coast Salish kinship is not strictly gion, 39 Journal of the West 54 (2000). genealogical. Social ties (where a person was born, who 62. As Snyder relates, raised them, whom they treat as their parents or siblings) are important, while evidence of maternity and paternity

Two men customarily handled exchange of in the biological sense are rarely considered. This makes food for their ‘relatives.’e The Upper Skagit man it very difficult to convert a Coast Salish family history was daxa’lx d who lived in the village of s- into a conventional “family tree,” posing difficulties for ba? lixw near Concrete on Lake Shannon at the groups trying to prove they are “Indian” to the satisfaction present Baker River. The Lower Skagit was of federal bureaucrats. Russel L. Barsh, Political Recogni- ? at ? who handled negotiation keke’ ’ dL b bza zale tion: An Assessment of American Practice, in WHO ARE CANADA’S to upriver for the people of Penn Cove. If a person ABORIGINAL PEOPLES? RECOGNITION, DEFINITION, AND JURISDICTION had 50 strings of clams he wished to trade he 230-257 (Paul L.A.H. Chartrand ed. 2002).

contacted ? to make the transaction with kekee ’’ dL b 65. Suttles, Economic Life, supra note 26, at 102-105. daxa’lx d for some commodity of his people. Upriver people wanted dried clams and downriver 66. E.g., ELMENDORF, supra note 26, at 114-115.

10 West Northwest , w e OAST 11 C ]. n 73 él x w x Affiliated ORTHWEST 74 Coast Salish Property Law Coast Salish : N note 25, at 108(2): 44. note 26, at 256-260; Southern Coast Salish note 24, at 28:21. The NDIANS They enjoyed the They enjoyed . at 1:13, 37:15. supra I supra Id Southern Coast Salish 71 , supra MERICAN Up to a hundred family Up to a hundred A 72 note 70. Economic Life ORTH N [L], a cattail house mat. OF

See supra átaq Neighboring houses often affiliated w 71. 72 . Haeberlin notes, 73. The owner and residents of a house decided whether 74. Coast Salish houses were typically several hun- k 70. Suttles, ANDBOOK H house as a whole was common property in the sense only of a condominium apartment building; however, the owner carved or painted the symbols of his spirit power on the house posts. to accept newcomers; if the house frame had to be extended to accommodate newcomers, all of the residents helped with construction. Snyder notes, houses shared a reach of a river, a bay or fjord, a reach of a river, houses shared and more a group of islands, or even larger alliance complex territories. The Snohomish of the extended from the headwaters Mountains Snohomish River in the Cascade Is- across the bay to Whidbey to its estuary, shores land, and from there to the opposite Peninsula. of Puget Sound on the Olympic and Wayne Suttles and Barbara Lane, 485-502 (William C. Sturtevant ed., 1990), at 491-492 [hereinafter Suttles & Lane, privileges of carving or painting their per- painting their of carving or privileges and main posts on the sonal symbols and counseling hosting feasts, doorframe, the residents. shared the use of a groups (“households”) was responsible house. Each household cedar board to cover their for providing split Boards were tied to section of the house. easily moved. A house- the frame and thus choose to leave one house hold could freely simply took their boards for another; they were also moved sea- with them. Boards temporary camps. sonally for use at the through marriage ties and trade amongst owners, forming aggregations ( affiliated [S]). Each house or cluster of closely city-state, houses was a relatively autonomous population ranging from a with a year-round few hundred to several thousand. in “owners” of the house. “owners” THE

AKES [S] [S])

e OF L

flower. , which n e [L] or REAT bua e RIBES ám t ? l G

T X Emalu 68 THE

protecting spirit ’ ` NDIAN OF A

I , a “house section,” note 26, at 272-274, s álq b s e HE note 24, at 38:22. In The house was a , T EGION supra personal A considerable la- , 69 ám t R w supra 70 x ERROT AND

P [L]); and, beings that were [L]); and, ALLEY Economic Life V ICHOLAS e [S]). Relationships with non-hu- with [S]). Relationships [L] “room”). w [L]), and the household ( e Thus everyone from the Snohomish Thus everyone sq lálitut ISSISSIPPI 67 ? ? e Before Coast Salish people built Euro- Before Coast Salish people built M 68. Haeberlin notes, 69. Suttles, 67. Anthropologists use “totem” to refer to the

ál tx ?

ál al X ’ ` PPER A 259-260 (Emma Helen Blair trans., 1996). “Chippewa” refers to the same cultural and linguistic group as “Ojibway” or “Anishinabe.” the Fijian mountains, where I did fieldwork in 1970, I was a member of a patrilineal clan, the was associated with a salamander and the 494. A household may be compared to a present-day Compare nuclear family. U or guardian spirit of a kin group such as a lineage or clan, but this term has no Coast Salish equivalent. The term “totem” itself was originally borrowed from nindódem, an Chippewa word that refers to the family and his/her speaker’s or guardian. N or and peg to- bor was required to cut, shape, formed the gether the cedar posts that people frame. As a result, only influential the la- with many “friends” could mobilize the builders bor to raise a house frame, and as the (often as a partnership) were viewed mans, whether or not they were visible, or not mans, whether and did not extend to tended to be personal relatives human in and friends the person’s There at least one was any functional way. certain non-human be- important exception: as patrons of entire vil- ings were regarded lages. in towns pean style frame houses and lived gradu- or reserves (a change that took place the basic ally between the 1850s and 1910s), ( units of society were the house operated large post-and-beam structure that like a condominium. s l q s l m present-day city of Everett village near the the killer whale, and ev- was associated with Snohomish village at Priest eryone from the with moss. Point was associated power ( Fall 2005 ( or dangerous terrifying West

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Northwest

House affiliations secured a variety of birth or early childhood. Hence ?ál ?alt de resources. The Snohomish feast hall near [L] (“homeland”) is literally “one’s own present-day Everett, for example, could draw house,” and an individual will self-identify on exotic animal hides and wool from the using the term tul ?ál [L], which, like the Ger- mountains, year-round upriver supplies of man von, means to come from a particular meat and freshwater fish, and an abundance place.76 By contrast, “tribe” is a relatively of shellfish and salmon from salt water. Bio- recent policy instrument of European ad- logically connected ecosystems were so- ministration that contradicts the traditional cially connected through house alliances. Coast Salish social paradigm.77 Anthropo- Through wider networks of kinship and logically, a “tribe” is a bounded social unit; trade, widely separated and diverse ecosys- there is some genealogical separation be- tems throughout the Salish Sea and beyond tween tribes and a number of real or imag- were linked socially as well. Enmeshed in a ined cultural distinctions between their regional web of social relationships, each members.78 Historically, Coast Salish Coast Salish household could assert claims people were divided by fiat into geographi- to widespread, highly diverse biological re- cally distinct “tribes” for the purpose of set- sources. Diversification of resource use was tling them on reservations (U.S.) or “Indian arguably an effective response to the bio- reserves” (Canada).79 “Tribal” boundaries physical vagaries and “patchiness” of the crosscut Coast Salish kinship ties and es- Salish Sea.75 Households responded to tablished a different equation between kin- annual variations in patch richness by as- ship and territory. Under customary law, serting claims to the use and product of stronger kinship ties meant a stronger, but patches controlled by “friends.” never exclusive, claim to territory. Under post-contact U.S. and Canadian “Indian Conceptions of personal identity were law,” tribal membership not only became lin- traditionally anchored in the house of one’s eal and restrictive,80 but it also became the

dred feet long, winding along the beach if they could 77. Boxberger, supra note 45, at 12; ALEXANDRA not be rectangular. Surrounding the main residence HARMON, INDIANS IN THE MAKING; ETHNIC RELATIONS AND IN- were outbuildings such as the women’s menstrual house, DIAN IDENTITIES AROUND PUGET SOUND 7-8, 204-205, 248 storage sheds, and smaller homes for lower class (1998). people (closer to the water, and hence less protected). 78. Morton H. Fried, On the Concepts of “Tribe” and “Tribal

A very influential house might grow into a village of Society,” in ESSAYS ON THE PROBLEM OF TRIBE 3, 11 (June Helm,

’ several residencese and (like the great. Snohomish house, ed. 1968). A tribe is a kinship group and a cultural group hébol b) surrounds itself with c altkw [L], defensive but not necessarily a contiguous geographical unit. trenches like a medieval European castle. Suttles & Lane, Southern Coast Salish, supra note 70, at 291-292. For 79. Canada used the anthropological term “bands” descriptions of particular fortified villages and redoubts, (connoting a lower level of organization than tribe) un- see Snyder notes, supra note 25, at 108(10): 36-41 (Skagit til the 1980s, when the term “First Nations” came into fortifications at Snaetlum Point near Coupeville); 108(7): wide public use—although the Indian Act still refers to 93 (Nuwhaha fort on Bow Hill); 108(10): 86-87 and “bands.” See, e.g., R.S.C., c. I-5, § 28 (1985) (Can.). 109(3): 79 (Upper Skagit fortified village near present- 80. Federal bureaucrats administered tribal day Mount Vernon); 109(1): 28-29 (Swinomish palisade membership until the 1930s in the U.S. and the 1980s on Sullivan Slough). in Canada. Control of membership has shifted gradually to tribal bureaucrats under the provisions of con- 75. SUTTLES, COAST SALISH ESSAYS, supra note 1, at 45-63. stitutions and legislation enacted by elected tribal 76. The root ?al [L] simply connotes a location in leaders. In both countries, and all but a handful of time and space, so it would be reasonable to translate Indian communities, a person must prove lineal de- ? ? the word for “house,” ál al [L], literally “place-place,” scent from a tribal member, and some minimum as a “real place.” Bates et al., supra note 59, at 6.

12 West Northwest 86 88 13 feasts 85 Id. Coast Salish Property Law Coast Salish note 25, at 109(1): 48 Because generosity [S]. w ‘ 84 supra “It is a real debt.” ? 87 a uk [L] or s w at 109(1): 48 (Amelia Dan). McLeod). Thus when at 109(3): 59 (Tom at 108(2): 62 (Alfonso Sampson). [L], which sounds similar, refers to similar, [L], which sounds ig Id. Id. Id. is simply a possessive. Therefore, a possessive. is simply something. that possess are people terms of amassing is conceived in The Indians never gave something for noth- . at 58. 88. Id 84. “Things” in the sense of personal posses- 84. “Things” in the sense of personal 85. Snyder notes, 86. 87. –abš ing. Every time they give something, like if a girl was getting married and took some beaver hides, my beaver hides would be counted and then later if I needed help, the party would return the hides and add more. And going back and forth helping people, you become indebted to them because of the additional payments that they make back just like a revolving fund. to you. It’s at 109(2): 51 (Andrew Joe). Dick Edwards’ wife died, his brothers gave him enough money to hold a memorial feast and give a few dol- lars to each invited guest; the guests eventually helped him raise another $700 in gifts. “Wealth,” then, consists of having many in- “Wealth,” then, consists of having laws and debtors. ing rights are inherited as family property. sions are “fine people,” or “noblemen,” but the root but the or “noblemen,” “fine people,” ?abs- sii?áb but not be material, possess need What they such as intellec- it also can be intangibles spiritual powers. The suf- tual property and fix ties rather than amass- widespread kinship ing material wealth. potential in-laws, attracts allies and are important impor- as a way of witnessing greater tant transactions and building even 50 wealth. Of feasts, elders interviewed revolved years ago explained that “things back.” and then in time they get the things obligation” The recipients of gifts are “under to reciprocate. alliance[s]”). (Interview of Amelia Dan: “good will and Generosity is also regarded as proof of spiritual power. Id. the people that belong to, or come from, a the people that Indeed, the “wealth” of particular place. sii?áb A

”: ? supra How- sii?áb 93, 95-96 ANDBOOK , that fish- 81 , H infra ITIGATION OHEN L C Who Is “Indigenous ELIX IGHTS R . 1, 20 (1982). [S], and it is most of- Backfire from Boldt: The Judicial EV Indian Land Claims Policy in the BORIGINAL 349-372, 612-632 (1982). A 83 . 85, 98-99 (1991). In other words, AW and treaty rights (such as and treaty rights in ?i?ém , include “high-class people,” IST .” “Wealth” can be rendered 82 [S], a polite form of address L H . This necessarily leads to overlapping Id , 58 N.D. L. R EGAL NDIAN [L] or sii?áb Wealth I sii?ém Core concepts of Coast Salish law are Core concepts of 1. “ , 4 W. L , 4 W. 82. Russel L. Barsh, 81. Both U.S. and Canadian law restrict the right to 81. 83. Russel L. Barsh, ?i?áb EDERAL United States (Joseph E. Magnet & Dwight A. Dorey eds., 2003). (Joseph E. Magnet & Dwight A. Dorey the members of live on parcels of reserved Indian land to Indian Act, specified tribes or bands. 25 U.S.C. §§ 179-180; the U.S., but not R.S.C., c. I-5, §§ 20, 30-31 (1985) (Can.). In in Canada, parts of territories originally reserved for Indi- ans were subsequently opened to settlement or sale, re- sulting in a characteristic “checkerboard” of relatively more and less protected tracts of land; and the extent to which the tribe retains jurisdiction over parcels acquired by non- Indians remains hotly contested. F of Coast Salish Proprietary Fisheries into a Com- Transformation mons all members of Tribe A have the right to fish wherever any ancestor of any of the members of Tribe A customarily fished. “usual and accustomed fishing grounds,” and breaks down the traditional principle, discussed F note 54, at 245-246; Russel L. Barsh, Survey of State Practice proportion Many tribes of “Indian blood” or Indian ancestry. Barsh, and bands also have residence requirements. [L] or transla- at ceremonial gatherings. Popular tions of ever, to make matters more confusing, land matters more confusing, to make ever, based on lineal have been claim payments present-day tribal regardless of descent membership, of Humanity and Porperty II. Conception A. Elemental concepts Salish languages. Four embedded in Coast to English speakers are concepts familiar study: particularly relevant to the present wealth; class; ownership; and, cleanliness. as form ten heard in its nominal plural exclusive basis for territorial claims. basis for territorial exclusive on the aggregate ances- fishing) are based try of each tribe. Fall 2005 West

Russel Lawrence Barsh Volume 12, Number 1

Northwest Wealthy people traditionally arranged aristocracies and new, meritocratic family marriages for their children, taking “careful networks that derived their wealth (like Coast consideration of the possibility of gain from Salish peoples) from production and trade.94 the alliance.”89 The family of a particularly desirable woman, on account of her lineage 2. “Class.” In Coast Salish culture, 95 and skills, would condition their approval on wealth arose from “class” because “class”

a substantial payment.90 Many women was the source of family ties and of family

e earned renown in trades such as herbal medi- teachingse . or “advice.” Family teachings, ’ 96 ‘ cine, basket making and weaving,91 and pay- x c ?usadad [L] or sn ps [S], included ment as a condition of marriage was regarded proprietary knowledge of the family’s history,

as compensation for the loss a woman’s con- traditions, and genealogy, as well as certain

e tribution to household production. A man arts and skills that are not shared withe out-

with a good name could have expected to siders. Low-class people are s?q yíq l?

e e [L] (“ignorant,”e or more literally “know-noth- marry well, and he might have been offered ‘ wives without having to pay for them, just to ings”) or áw n sn ps [S] (“without teach- make him an in-law.92 Even people from ings”). The parents and grandparents were humble origins could advance socially to blame: “They didn’t give their children 97 through marriage, if they acquired a reputa- advice” in the form of family stories. tion for being skilled, “hard workers.”93 In “Those stories have to have a meaning; this regard, Coast Salish society was argu- they’re where advice really comes out. The ably more oriented toward individual effort warning comes right out in those stories, and achievement than middle-class Euro- and the other guys who think they know so pean society, which suffered from a precari- much don’t bother to evaluate those sto- 98 ous balance of power between old landed ries.” “Unlike the higher-ups,” low-class people “didn’t get an education.”99

89. Id. at 109(1): 14 (Amelia Dan). Families “ar- 94. DE TOCQUEVILLE, supra note 63, at 51-54; Braudel, ranged marriages into tribes where hunting and fish- supra note 63, at 68-71. ing was [sic] better than in one’s own territory. . . . 95. When Coast Salish people speak of “class,” or Marriages were also arranged with up-river people of someone being “high-class,” they employ a term such

with practicality in mind, mountain-goat wool being as a ? kw [L], which refers to a category or group of people. ´ e

an object in these cases.” Id. at 109(1): 2, 17. Families . . 96. This is derived frome x c [L] “mind” or con- also arranged marriages with neighboring settlements . . scious thought; compare x ´ c ádad [L] a spell or “mind to form a defensive perimeter: their in-laws “took care over matter.” The same root appears in Lushootseed of trouble” headed their way. Id. at 108(2): 53-64. Simi- words referring to reasoning and counting. larities between upper class marriages in Europe and the Salish Sea were not lost on Coast Salish people; 97. Snyder notes, supra note 25, at 108(2): 11-12 one elder explained to Haeberlin that the “Chief would (Andrew Joe). try to marry his children to chiefs of other tribes (like 98. Andrew Joe called lower-class people

[the] Kaiser).” Haeberlin notes, supra note 24, at 28:11 tu? lase lád, “out of the way people,” which he trans- (Henry Sicade); see also id. at 28:32, 30:6-9, 36:25-6. lated as “low down people,” and added “[t]hey’re 90. The traditional doctor Little Sam paid 40 blan- lower-grade with ignorance in public.” Id. Such kets, 2 slaves, and a canoe for his wife Annie. Id. at 10:8. people were viewed as idlers and comprised the low- est class of Coast Salish villages. SUTTLES, COAST SALISH 91. “That’s why they had so many wives, a differ- ESSAYS, supra note 1, at 17-23. ent wife in each department.” Snyder notes, supra note 25, at 180(2): 34. 99. Snyder notes, supra note 25, at 108(2): 16 (Joseph Joe); see also JUNE MCCORMICK COLLINS, VALLEY OF 92. Haeberlin notes, supra note 24, at 35:4. THE SPIRITS; THE UPPER SKAGIT INDIANS OF WESTERN WASHING- 93. Snyder notes, supra note 25, at 108(2): 15 TON 125 (1974). (Joseph Joe).

14 West Northwest e 15 e t st dul (“I am of e . at 108(2): 16. Coast Salish Property Law Coast Salish Id . c , “I am one of the X , “it’s mine”) de- , “it’s [L], and the gifts l [L] (“one’s own,” [L] (“one’s c . a? l . at 29. a? w w note 59, at 244. A varia- Id [L] (“to be”). Thus in [L] (“to be”). Thus g [L] refers to ancestry, l , referring to a member of a yáyus l supra ?a? comes to people through -u .” There is no conceptual .” There inheritance: as in ti dsg –a text accompanying note 97. sduhúbšu d sduhúbša d [L], a “dreaming” or spirit Distinctions are also made for 104 Ownership See supra e 3. “ and Fishing grounds, shellfish beds, 102. As Joseph Joe explained, “to get that spirit to 104. Bates et al., 103. s’q lálitut Coast Salish discourse, things just “are” con- Coast Salish discourse, his canoe” people; “it’s nected with certain that canoe.” This may rather than “he owns scholars an absence of suggest to legal On the con- property. much concern about is the basis for asserting “mine-ness” trary, in specific ways. For ex- often expressed ample, the suffix the fruits of “work,” of be high-class, and try in this way to bury one side (the low ancestry) of the lowness down.” tion uses the suffix category or class: poorest and most unhappy children. and most unhappy poorest as such. Salish for “ownership” term in Coast term The possessive as in the phrase rives simply from or family origins, from [his] (“power to run the pole derived ancestors”) or [descended from] the Snohomish people”). Property power. are incom- different kinds of relationships that is funda- mensurable. Having a spirit power property mentally different than earning privileges through hard work or acquiring rights through kinship in terms of derivative and responsibilities. fiercely de- other productive places are “Should any- fended as exclusive property. one come in and fish and create any kind of trouble, he would be ordered off the pre- mises,” one elder has explained, “and such persons using the territory would not be Snohomish,” but this does not imply the basis or source of the association. Since claims 100 note 25, at 109(2): 88 supra 101 Another escape from low-class Coast Salish family teachings in- 102 103 Coast Salish class was not a caste sys- Coast Salish class was not a caste A family preserved its wealth and sta- preserved its wealth A family 100. Snyder notes, 101. I use the past tense here because class is no (Alfred Edwards). longer as salient in Coast Salish society as it was a century ago. Elders I know frequently refer to the low- class background of tribal politicians and bemoan the fact that people today are too ignorant to appreciate the significance of good breeding and traditional advice. status was the marriage of an exceptionally house- skilled young woman into a high-class hold. cluded “Cinderella” stories to make the point, like their middle-class European counter- skill and hard work led parts, that honesty, to wealth and good marriages for even the tem, however. A low-class person could al- tem, however. his ways gain social status by demonstrating which usu- or her merit through productivity, of a pow- ally involved seeking the patronage gain great erful spirit that could help them feasts to wealth and hosting four successive earned demonstrate the extent of their wealth. to share the use of productive property to share the use sites must be based on kin- such as fishing in greatership, as described detail below, was better able to set a high-class person claim than a low-class out a convincing a high-class person knew person because connections his family’s the stories about of the site and how he with the custodian fami- was related to them. Furthermore, lies avoided liaisons with “know-nothings,” so- thereby isolating low-class households ties cially and depriving them of marriage useful through which they might gain knowledge. tus by keeping teachings within the family. teachings tus by keeping tell of people and your class “If you know you are not sup- (family trees), histories outside your own posed to tell anything secret.” line. It is their own Fall 2005 West

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welcomed unless he had a family tie with with the concept of holiness or sacredness, 105 the owners [or] was invited.” It is not al- xá?xá?’ ’ [L]. Sacredness is associated with ways easy to determine who may be ex- the power of spirits, while spiritual cleanli- cluded. Wide-ranging kinship ties mean that ness is something that humans are capable everyone is related to some degree, and has of making and destroying through their ac- a claim, however remote or weak, to the prop- tions. The root xá?-’ simply means vast, erty of everyone else. However (as discussed abundant, awesomely numerous, hence in greater detail infra), a person’s knowledge xá?xá?’ ’ implies boundlessness or infinity. of the names, stories, songs and ceremonies associated traditionally with property such B. Categories of property as a fishing site is evidence of an inherited Intangibles such as knowledge and tech- and therefore legitimate claim. nical skills occupy a much larger place in 4. “Cleanliness.” There is likewise no spe- Coast Salish law than tangible forms of prop- cific Coast Salish term for “stewardship” or erty. This focus is reflected in the number of “management” in the sense used today in Coast Salish terms used to classify intangibles relation to environmental issues. However, such as songs and spirit powers, as well as the Coast Salish concept of cleanliness, by the frequency, intensity, and persistence kwi?át [L], is arguably synonymous with of disputes over claims to intangibles, which stewardship. It conveys the sense of spiri- may persist for generations. tual purity, and isolation from noise or con- The following classification draws heavily on tamination. Before someone seeks a pow- Suttles’s effort to systematize Coast Salish prop- erful spirit helper, does traditional “work” or erty law a half-century ago.107 Some categories “doctoring,” or goes to sing in the are explicit in Coast Salish law and are associated smokehouse, it is necessary to bathe and with distinctive terms of art. Suttles proposed ad- fast because spirit beings are repelled by the 106 ditional categories on functional grounds, i.e., by smells of people and human food. Un- grouping things that tend to be treated similarly, derstandably, one can only bathe properly although they do not form an explicitly named and become clean in a clean place. In the category in Coast Salish languages. case of a fishing or shellfish harvesting site, cleanliness can mean a minimum of human Personal property. This group proposed disturbance of the landscape, apart from by Suttles includes food, tools, clothing, than respectful activities that enhance the houses, household furnishings, and health and abundance of wildlife and plants. dogs.108 Articles of personal property are individually owned, and can be used, Although the concept of cleanliness shared, donated, or sold freely to others.109 has spiritual implications, it is not identical

105. “And this kind of thing was about the only kind were shorn for making yarn. Dogs were given names of thing they ever quarreled about because it was their and treated with much the same sense of family mem- livelihood,” she added, noting that “[f]amilies would bership as “pets” amongst Europeans. Id. at 103; Russel sometimes use intermarriage as a means of reducing L. Barsh, J. Megan Jones & Wayne Suttles, History, Eth- tension and possible friction” over valuable resource sites. nography, and Archaeology of the Coast Salish Woolly-Dog, in Snyder notes, supra note 25, at 109(1): 25, 32 (Amelia People and Dogs (Lynne Snyder ed., forthcoming 2006). Dan); see also id. at 108(2): 58-60 (Alfonso Sampson). 109. Haeberlin notes, supra note 24, at 2:29-30

106. Suttles, Economic Life, supra note 26, at 327-328. (William Shelton). To sell is w [L], as distin- e x uyub 107. Id. guished from w š [L], to “distribute” or give away for some purpose, for example at a feast. To pay what

108. Two kinds of dogs were considered valuable: ? e you owe for trade or social debtse is t ás [L]; to give a hunting dogs, and a special breed of “woolly dogs” that handshake or pay a doctor q ? lús d [L].

16 West Northwest - Id. 116 17 rather NTERNA I EW N separate HIRD Coast Salish Property Law Coast Salish T S ’ EBSTER W See , s.v. “inspiration.” Like Western law, Coast law, “inspiration.” Like Western , s.v. . As described above, Coast Salish or spirit, at first a god(dess) and later the Holy [L] (“slave”) implies being socially ICTIONARY e Power D spiritus 115. A hybrid form of legal tender frequently seen 116. It may be appropriate to observe here that West- TIONAL Salish law distinguishes between skills that arise from hard work and talents or gifts that defy material expla- nation, and treats both as (intellectual) property. pay a social debt, for example; its status can its status debt, for example; pay a social the circumstances. from only be determined are items whole, the highest-value On the An as legal tender. for use more appropriate tee shirt can be given away attractive printed guests at a feast, but to re- as a souvenir to creating or paying a social gard the gift as bring shame on the debt would certainly Distributing expensive name of the host. or deerskin cedar-bark hand-made traditional feast guests or busi- clothing to important comparison, would meet ness partners, by with public approbation. with invis- peoples conceive of a world teeming had gone to ible beings, human (ancestors that The invisible the other side) and non-human. and visions, world can be contacted in dreams on humans and invisible beings can take pity as stamina, and confer special gifts on them such skills. abundance, and artistic and technological of pat- Power shares some of the characteristics licensing in ents, trademarks, and professional law. mainstream intellectual property s’túd q to have than owned. Perpetual chattel slavery appears British Colum- been more typical of the Pacific Coast of “Northern” bia and Alaska than the Salish Sea; these Sea for slaves, peoples frequently raided the Salish of Africa. much as Europeans raided the west coast today in the feast hall is a blanket with dollar bills pinned to it. Distributions at contemporary feasts include valuable articles (such as blankets) for important guests, who are thereby placed under obligation to repay them, as well as more ordinary gifts (beads, tee shirts, inexpensive shawls or for the audience as a and even Tupperware) throw-rugs, personal observations, 1974-present. whole. Author’s ern philosophy also attributes many extraordinary skills, musical and artistic including scientific as well as literary, genius, to “inspiration,” which has its linguistic roots in Latin term Spirit of Christian philosophy. See note 112 Haliotis (Denta- supra Remov- . at 5: 27-8. Id 110 personal, it personal, , 1827-1830, at Legal tender too On the other note 26, at 473-475. 115 that are distrib- OURNALS 111 J 114 supra note 25, at 108(2): 43-44. , the currency of Coast ANGLEY supra . Haeberlin notes, L e 113 . This group by proposed ORT ? F Economic Life HE , or imported dentalium shells s- úl x The Ethnographic Significance of the Fort Lan- , ) was also valued greatly. ) was also valued greatly. T until they were either ransomed, or earned ? in . at 34:13-14, 37 (Sam Cassimere). Burial , Id ? ’ tcaú ai sii áb Legal tender 114. A clarification of Coast Salish “slavery” is 111. For this reason, when the author’s research 111. For this reason, when the author’s 112. Snyder notes, Shell money was made from local clamshell 113. 110. 24, at 5: 17-8, 23-6. A shell brought from the north coast (probably the northern or pinto abalone, kamtschatkana appropriate here. Captives taken in raids, and people of very low social status, were expected to do the bid- ding of their freedom through skill, hard work, or marriage. Wayne Suttles, gley Journals 163-210 (Morag Maclachlan et al. eds., 1998). The term was typically in a box or “canoe” that was suspended was typically in a box or “canoe” that was placed in the in the branches of a tree, rather than ground. Suttles, very personal program conducts archaeological studies, items such as beads are left where found, whether or not they are physically associated with human remains. beads, lium pretiosum) Salish society before the arrival of Europe- Salish society before the arrival currency. ans, as well as European coins and charged It also includes certain symbolically fine clothes goods such as blankets, drums, and (in the past) slaves as uted at feasts to satisfy social obligations opposed to business debts. may be is contextual: an article of clothing or used to given or sold as personal property ing personal property such as beads from a ing personal property because the owner will burial is dangerous for them. come looking houses that were shared hand, boats and not destroyed but by a family are generally within the family. instead redistributed goods that are acceptable Suttles comprises of debts incurred in trade or for the payment strings and in the feast hall. It includes shell shell ornaments, Upon the death of the owner, personal prop- personal death of the owner, Upon the is while the body distributed erty is either if “it was house, or, still in the Fall 2005 body.” or buried with the is burnt West

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e e

Coast Salish peoples distinguish two e Spirit beings known as sk lálitut [L],

? w

classes of power. Spirit beings collectively s li [S] or sk iná n t [S] confer other kindse

w w e known as xe nX m [S] or x dáb [L] confer of songs known as siú n. Some siú n skw nás n [S] songs that empower the guarantee the singer success and wealth in

singer to see and manipulate the invisible pursuits such as fishing, hunting, gambling, world, and thereby to heal or to kill. An “In- or fighting; others simply identify thee spirit

dian doctor” can acquire more than one of that made the gift.124 Different sk lálitut these potentially dangerous powers, and not only have different songs,e but individu- sometimes “steal” a power from others.117 als who have the same sk lálitut may also “A doctor had to learn patience and self-con- sing differently.125 “The same spirit does not

118 trol, in order not to harm people.” It act in the same way to eache person whom should be understood that “Indian doctors” he meets.”126 Some sk lálitut tend to re- deal largely with spiritual illnesses, such as appear from generation to generation within the theft of people’s souls by “monsters”119 the same family or geographical area, while or being “stung” by another Indian doctor.120 others can be obtained by anyone that

127

Although spirit doctors are generally men, workse hard for them. In either case,

e womene have been known to acquire sk lálitut must be earned and cannot sim-

skw nás n.121 Women more frequently be- ply be inherited. If someone repeats a spirit come herbal healers and midwives by study- song they have heard, it does note transfer ing with older practitioners rather than ac- the power of the particular sk lálitut.128 quiring spirit power, and usually pay for the knowledge.122 Like spirit doctors, however, People earn power by working hard and midwives and other organic healers must making themselves spiritually “clean” by be paid for their remedies.123 swimming, bathing, diving, and fasting.

117. Suttles, Economic Life, supra note 26, at 333-339. different powers, while others were quite specialized in z ? 118. Id. at 347. “It was a dangerous affair to get their gifts. For example, only a person with tcád’ u spirit could make cedar duck decoys for catching seals xwdáb. A person had to have great courage.” Haeberlin and ducks; if made by someone else it wouldn’t work. notes, supra note 24, at34:20. A xwdáb might appear to him, and kill him if he ran away or did not do as he was told. Haeberlin notes, supra note 24, at 35:2 (Sam Cassimere); Id. Even if a person had received spirit power as a youth, he see also Collins, supra note 99, at 151-153. or she might wait until middle age to convene a “telling” of 125. Haeberlin notes, supra note 24, at 7:11-12.

the experience and become a doctor. Id. at 31:17-18. e 126 Id. at 1:2-5.

? ’ e 119.e Monsters are known as s A `álq b [L] or ’ 127. Id. at 10:9-10; Suttles, Economic Life, supra note sA ` X l q m [S]. The implication is something that 26, at 327, 371. It is also widely held that some spirits has a strange or uncanny sound. only come to people that belong to certain “tribes,” which 120. Doctors are each specialized, according to their is another way of suggesting that the ancestors tend to powers. Haeberlin notes, supra note 24, at 1:10, 28:35-6, 31:8- confer power on their own descendants. Haeberlin notes, 9, 33:12, 35:11-12; Snyder notes, supra note 25, at 108(2): 84. supra note 24, at 35:8-11 (Sam Cassimere). “When a per- 121. Haeberlin notes, supra note 24, at 30:31-2, son dies his powers stay here and follow them (his people) 31:33-5, 33:27-8. around.” Snyder notes, supra note 25, at 108(2):77, 87. Great power is only found among individuals who “come 122. Id. at 40:27 (Little Sam); Snyder notes, supra from that kind of family,” and is gained “partly through note 25, at 180(2): 82. Abortifactant teas have been “the training . . . and partly through being looked upon with secret of certain women [who] would not impart the favor by that spirit.” Id. at 109(1):10-11 (Amelia Dan). knowledge of this medicine without being paid well.” Haeberlin notes, supra note 24, at 37:20 (Little Sam). 128. Haeberlin notes, supra note 24, at 4:7 (Frank LeClair). In any case, the deceased’s song should only be sung by 123. Id. at 36:29. someone that actually has the same power lest the spirit 124. Some spirit patrons could grant a variety of cause trouble. Snyder notes, supra note 25, at 108(2): 77.

18 West Northwest e 19 But The smíl? 133 [L] or note 24, at [L] or Coast Salish Property Law Coast Salish Successful supra e note 26, at 371 note 25, at 109(1): d 132 While power [S] refer to fam- w e 134 supra supra note 25, at 109(1): 10- Inheritances. at 30:33. Such a person , píg note 25, at 109(2): 4. n you really had it and Id. X . c supra . c could back it up,” for example, by effecting cures or calling fish into your nets. comes from the invisible world, it must be demonstrated in public, in ceremonial as well as practical ways, before it is legally acknowledged. Coast Salish terms s ’a3acebs il n supra knew Snyder notes, Economic Life

Snyder notes, People claiming some kind of power People claiming see 134. Snyder notes, would gain a bad reputation: “He has no power; he just bluffs.” Collins, supra note 99, at 173. For stories of how Doctor Joe had to “prov[e]” his power to heal, hurting people. a design could be conveyed or inher- 10. However, ited. Suttles, spirit power Bobb “inherited” Billy Edwards’ (Tommy and used power boards of the same design). 11. Henry Sicade explained that a doctor had to gain “lots of experience and success in curing before he was recognized.” Haeberlin notes, 28:35. People doubted that a particular person really had spirit power if they “never saw him do anything” to substantiate the claim. someone could conceivably simply copy someone could claiming a power they songs and dances, there is a do not actually possess. Thus to ad- “strict tradition that you were never or any vertise that you had a certain spirit spirit unless you battle but also at feasts. battle but wealth songs, acquire personal people often the other residents share with which they can Wealth songs house or village. of their identify a community on also be sung to important occasions. spirit The it publicly. must also demonstrate dance, dance or winter forum for the performance [S], is a seasonal with spirit power. of songs associated , , c . L In- e MOSS níllc 130 UTTLES w 129 . sk [S], function [L] or e

c . w note 26, at 366-380. e díli note 25, at 109(1): 31. sk lálitut w supra , sk supra note 1, at 200-203; A note 99, at 183-189; S siwén q ; a weaver may advise her ; a weaver may advise supra e , supra Economic Life SSAYS e Snyder notes,

E nás n . at 108(2): 38-39. . at 423. w Id Id ALISH sk (“power poles”) and Not all songs are power songs. So- Not all songs are power songs. Suttles identified a number of “clusters” Suttles identified S note 41. The most dramatic displays of power note 61. These performances were punished by 131. Suttles, 133. Collins, 129. Parents may “inspire” their children to attract the 130. 132. 131 e OAST [S] (“power boards”). Tools used by dancers are hid- used by dancers are [S] (“power boards”). Tools den away in a safe place when they are idle or fol- to prevent them from lowing the death of the owner, C supra Barsh, U.S. officials in the early twentieth century. supra at dances involve special ceremonial tools such as t stid same power. same power. like a flag: they are sung to identify the song- like a flag: they are sung to identify village, not only in house, or family, owner’s called war songs, daughter about finding a daughter about like educa- required.struction is also “It’s an elder explained, “you tion nowadays,” unless you have it.” can’t do anything that Coast Salish peoples of power songs although there is no simple consider related, types of songs, types correlation between (Table spirit beings and particular of power, 1). Families have traditionally sent both boys have traditionally Families they for power so to fast and bathe and girls at something. be “successful” can eventually son try to help his doctor may An Indian find a Fall 2005 West

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Northwest ily inheritances; they are also used nowa- where important plants such as camas, ber- days to refer to the cultural legacy or patri- ries, and nettles are gathered or culti- mony of a “tribe.” Inheritances in the nar- vated.138 Although it is the general rule that rower sense include: the personal or “legal” people inherit from both their maternal and names used at ceremonial events; certain paternal kin, certain categories of property ritualized performances or cx´ wt X n [S], includ- tend to be gendered. Hunting and fishing ing some healing and initiation ceremo- places tend to pass to male relatives,139 for nies;135 traditional designs, including symbols example, while sxwáixwe masks140 and painted on houses136 and masks;137 and, re- spindle whorls141 tend to pass through own- source-harvesting sites or estates such as fishing ers’ female kin. grounds, shellfish beds, and meadows Personal names continue to be particularly valuable inheritances. Names tend to be associated with particular places and families, but may pass through other family lines and “tribes” from generation to generation.142 A name is the property of the person who bears it. It can be bestowed on another, but the transfer must be paid for and wit-

135. Cleansing or crisis-resolution rituals are per- Suttles, Central Coast Salish, supra note 26, at 468. formed by small groups of dancers carrying distinctive 138. “Fishing and camping places belonged to w w regalia such as the sx áix e mask. They are family prop- families” and were “family inheritance” according to erty but spoken of as belonging to the individual family Joseph Joe. Snyder notes, supra note 25, at 108(2): 44. members that hold custody of the regalia and know the songs. Suttles, Economic Life, supra note 26, at 407-409. 139. “Fishing and camping places and other

means of livelihood passed to a man’s sons.” Id. at

e e 136. For example, the co-ownerse of the last Samish 109(1): 10 (Interview of Amelia Dan). longhouse on Guemes Island, qw n ?q n X l , each painted one of the two posts supporting the main roof 140. Suttles, Economic Life, supra note 26, at 408-413; . Haeberlin notes, supra note 24, at 10: 17-9 (Johnny Will- beam: one symbol is the skwdíli c , the “power boards” used in spiritual healing and communicating with the iams). At a February 14, 2003 meeting of the Samish spirit world; the other is a rainbow representing the un- Tribal Council that I attended, my friend Rita Louis, of der-the-water power to grow rich from fishing. Both sym- Samish and Musqueam ancestry, was able to identify the bols are regarded today as the property of the direct de- matrilineal ownership of a sxwáixwe mask that I had pho- scendants and of the Samish “tribe,” more or less jointly. tographed at the American Museum of Natural History The one surviving post is in the custody of the Samish (New York City) based on the elements of its design. Indian Nation, after being rediscovered in the collection 141. Suttles, Central Coast Salish, supra note 26, at 460-462. of the Washington State (Burke) Museum, Seattle, by the 142. Suttles, Economic Life, supra note 26, at 399. author and collections manager Laura Phillips. “They gave names so people could remember where 137. Certain healings societies, such as they’re from.” Snyder notes, supra note 25, at 108(2): sxwáixwe, perform costumed and masked. Each 36-7. Thus, for example, a Duwamish name would sxwáixwe mask has a story and genealogy. See remind the bearer of his or her Duwamish ancestors.

20 West Northwest supra 21 at 108(2): ) is tradi- id. Coast Salish Property Law Coast Salish infra [S] or family teach- e ‘ inheritance, however, sn ps This in turn underscores Free access to resource Free access to at 28:18. In his interview notes, 151 149 Id. individual . at 109(2): 88 (Interview of Alfred Edwards, Id More attenuated kinship connec- 150 150. “Should a man die and leave property, like 150. “Should a man die and leave property, 151. from another tribe to fish [or] pick in their territory. This in their territory. another tribe to fish [or] pick from was permission was hardly ever refused. If permission and might not asked, it was regarded as an invasion” trigger conflict. or “house Haeberlin used the term “tribe” when “family” group” would have been more accurate. It is likely that informants used “tribe” when speaking En- Haeberlin’s glish (Haeberlin took his notes in English rather than in Coast Salish and apparently did not understand any Coast Salish languages) because it was a word they thought “Bostons” (white Americans) would understand. a family fishing or hunting site, it becomes the joint property of the surviving children who were obliged Snyder notes, to care for an ageing mother.” resource-harvesting sites. According to Wil- According to sites. resource-harvesting a family or in a 1915 interview, liam Shelton and fish anywhere free to hunt people was while others customaryin their territory, and fish there “if they had could also hunt If in the other country. friends or relatives then it may mean that they were strangers, for trouble and the they were looking but due to into danger,” stranger might get “there was no widespread intermarriage, line between the countries sharp dividing of two tribes.” sites is an the strongest claim to in the sense that a rightful rightful use is lineal descent from user. the im- tions require explanations, hence permission: portance of formally asking for justified the request must be stated and genealogically. the importance of formulate ings. An ignorant person cannot The require- a convincing claim to anything. im- ment of asking permission necessarily of kinship plies the existence of an arbiter claims, which (as described note 25, at 109(1): 10 (Amelia Dan). emphasizing that it was important to know one’s own emphasizing that it was important to know one’s genealogy and keep it a family secret); 58 (Interview of Alfonso Sam, discussing the importance of intermarriage to gain access to resources through stronger kinship ties). Id. “It 146 note 25, at supra note 26, at 404. More than one note 24, at 21:15; note 24, at 28:5. supra Id. 145 , supra The name of a de- The name note 26, at 403, 405. Un- supra At a naming feast, At a naming 144 Id. 143 supra , This has not changed. If Economic Life 148 “Bitter quarrels sometimes at 40: 35-36. 147 at 1: 11. According to Henry Sicade, Id. Id. Id. Economic Life After great names, the most valuable 149. 148. 144. “A man, before he dies, might in a way give his 146. Haeberlin notes, 147. 145. Suttles, 143. Haeberlin notes, “[p]icking [and] fishing-grounds were [the] property of different tribes . . . [b]ut one tribe could ask permission like formal or “legal” names, names given casually like formal or “legal” names, names could not be inherited. name to a son, and the son would have to give a potlatch grandfather or to make his name legal after his father, uncle (predecessor) dies.” Snyder notes, 108(2): 35. The gift may be challenged if it appears inappropriate to the guests at the feast; for example, a name should be given to a warrior. warrior’s Just as the inheritance of name is bilateral, names themselves are not gendered: a man could take a name, or vice versa. woman’s Suttles, arose between two people who wanted the arose between two people who settled by a same name” and could only be big payment. signifi- anything, the loss of other culturally prop- cant forms of tangible and intangible of erty has increased the social significance acquiring important names. are and potentially contentious inheritances ceased may be bestowed by his direct deceased may be may be held in trust for as- scendants, or it yet unborn descendants. person may receive the same name, al- person may receive in the same community. though usually not ago, Henry Sicade ex- Nearly a century sharing of great names plained that this the “tribes” together. helped link all of to take the name of the an- was an offence other family” without their cestor of some a row” consent, and if the other family “made by feast- the dispute could only be settled ing them. nessed at a feast. nessed Fall 2005 be- right to host’s challenge the guests may can- of the name or the worthiness stow the receive it. didate to West

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Northwest tionally an individual steward representing nent nineteenth century Snohomish leader, the family with the strongest historical as- possessed a spell and charm for protection sociations with the estate. from sharks. The story was public, but the actual spell was a secret, and the charm was Private knowledge. A great deal of useful kept in a secret hiding place.154 A descen- proprietary knowledge is acquired by learn- dant of Letsqé ?d X b carved a copy of the ing from other humans, rather than coming shark-proof charm for Haeberlin to place in as spirit gifts. This secular knowledge in- a museum, but it is presumably useless be- ? ? ’ cludes dá adad [L] or siú in? [S] or “spells,” cause the spell was not recorded.155 including the secret names of things, which when spoken compel them to obey.152 In The practical as well as ritual expertise the past, spells were often used in hunting involved in harvesting technologies such as and fishing. Spells are ordinarily family se- reef nets, duck nets, or tidal weirs is also crets that are taught to children, and rarely private knowledge.156 Access to technology shared with others, although some may be has traditionally begun by finding a relative sold or performed for a payment.153 For ex- “who knew how to do it,” and was agree- ample, the family of Letsqé ?d X b, a promi- able to sharing know-how in exchange for apprenticeship labor.157 A “handshake” is

152. Spells have been described as the “origi- vided he paid heavily for this instruction. But in nal” language shared by all beings, first taught to such a case the magic would not ‘stick’ the way humans by the Transformer, X X ? ls. Suttles, Economic it would if it was passed on from father to son. Life, supra note 26, at 390. The root in Lushootseed is In case of the paid instruction the person would dá ?, “a name,” with a transitive suffix that implies gradually forget the words of the formulas after “acting on something.” Examples include charms for say 10 years or so. love, to make someone else’s paddle break, to win a Haeberlin notes, supra note 24, at 38: 19-21. race, to avoid falling in the mountains, to slow down 154. Id. at 35:6, 37:21, 39:1-5. the sun to get home on time, or to manage the rain. Haeberlin notes, supra note 24, at 38:19-21. Many spells 155. Id. Similarly, Little Sam produced a scale were used with physical “charms,” but elders are ada- model of a “power pole” for Haeberlin, now in the mant that they only work if the spell is properly enun- custody of the American Museum of Natural History, ciated. Id. Other spells, known as c’ X -li n [S], were New York City, AMNH Catalog Number 50.2/522, sung. Suttles, Economic Life, supra note 26, at 387. which I was assured is totally harmless because it was never actually used by someone with power. In- 153. Suttles, Economic Life, supra note 26, at 390. terview with Victor Underwood, Jr., Samish elder and Little Sam, a Snohomish healer of wide renown a cultural teacher, in Anacortes, WA (Feb. 28, 2004). century ago, explained that: 156. Suttles, Economic Life, supra note 26, at 391. Best medicine was kept secret. Only 2 or 3 Weaving and basketry are also treated as proprietary people in tribe know about such medicine. Each skills that must be learned from a willing relative. tribe would have different medicines. This type Collins, supra note 99, at 67-71; NETTIE KUNEKI, ELSIE THO- of ‘strong’ medicine was called dáhadad. This MAS & MARIE SLOCKISH, THE HERITAGE OF KLICKITAT BASKETRY; A was different from xwdáb. The latter was not HISTORY AND ART PRESERVED 13-15 (1982); interview with transmitted in the proper sense of the word from Irene Bjerky, Lower Fraser River basket-maker, in father to son, but dáhadad was. . . . The main Anacortes, WA (Feb. 28, 2004) (discussing how de- thing in dáhadad were the magic formulas. signs are associated with particular families). An- People who have never been instructed in drew Joe told Sally Snyder the story of one wealthy do not know these formulas. A woman dáhadad Skagit leader who married low-status women that were might have . It was handed down from dáhadad famous mat-weavers, not only to create wealth for him generation to generation. A person might get but also presumably to train his daughters. See Snyder some instruction in dáhadad from an old per- notes, supra note 25, at 108(6): 4, 108(6): 11. son who was not his father & grandfather, pro-

22 West Northwest Id. [S] supra e 23 ´ High- 165 sn p note 59, at 83. Coast Salish Property Law Coast Salish note 26, at 395; supra note 1, at 8-9. note 24, at 28:27. In supra , supra supra , SSAYS . at 28:28; 33:28. [L]. Bates et al., E w Id Economic Life dik ALISH w x S . at 38:23. . at 34:6, 37:6. . at 36:29-30. This term shares a common root Id Id [L], including family history, gene- family history, [L], including OAST Id Although Suttles described private Although Suttles , C Family teachings or “advice,” Family teachings 166 164. 165. Suttles, 166. “I suspect that restricting the knowledge of 159. Interview with Victor Underwood, Jr., Underwood, Jr., 159. Interview with Victor 160. In practice, therefore, the customary law of 161. Haeberlin notes, 162. 163. sniw UTTLES S or the names of ancestors enabled those who knew to control their bestowal on their own descendants.” alogy, the origins and genealogy of formal and genealogy the origins alogy, versions names, and family-specific or legal constitute the most im- of stories, arguably knowledge. portant kind of private their estates by status people maintained children to teach the determining which by which means they lim- names and stories, to the use and inheritance ited future claims and intangible prop- of all valuable tangible erty. from inheritances, knowledge as distinct conceptual and prac- there is considerable categories. tical overlap between the two public and Inheritances are somewhat more knowledge collective in nature, while private both tend is more individual and secret, but A fish- to be acquired by virtue of kinship. number of ing site may be shared by a large the use of lineal and collateral kin, while at the same specialized fishing technology small sub- site is likely to be restricted to a closely related individuals that set of worthy, as well as have recognized skills and power note 165. similar to the private technological knowledge is intellectual treatment of know-how in mainstream property law: a combination of secrecy and restrictions on the use or transmission of the know-how for some period of time as a limitation on competition with the teacher. turn, the Nisqually reputedly made better baskets than the Klickitat. with “wisdom,” 163 164 “The Control 160 159 Apprentices Coast Salish 158 162 Likewise, the 161 note 25, at 109(2): 111-112. supra [L], “forefather” or “ancestor.” w ix z d Since the people had different ways of fish- Since the people had different ways of 158. In my personal experience as a participant in feasts, 157. As Snyder related, Snyder notes, ing they wouldn’t know how to fish in very strange ing they wouldn’t know how to fish in very Skagit couldn’t For example, the Lower territory. have fish up-river very well because they didn’t the proper equipment, and vice versa for the upriver people; the Upper Skagit couldn’t fish in the San Juans because they can’t use Samish equipment. Like the up-river people could never catch halibut or they couldn’t use (didn’t know how to use) the kind of canoe that they have down here. That is why a young man presents a lot of blan- family when he wishes to marry. kets to the girl’s he stays with the girl’s If he can’t afford to pay, all the new and so then he has to learn family, from his father-in-law. ways, probably, healing ceremonies and “burnings” (feasts for departed ancestors), a handshake is routinely conceived of as a donation, a gift of gratitude freely given in recognition for something done by a respected elder who has not discussed a price. Some useful knowledge is not owned, how- Some useful knowledge is not owned, bitter such as the use of willow or ever, “Everybody cherry bark teas to treat colds. these.” [from] different tribes knew about people have always valued useful inventions people have always valued useful The and treated the knowledge as property. useful is first person to discover something called Snohomish bought their flint arrowheads Snohomish bought Range from the Snoqualmie in the Cascade to the and sent slaves and shell money seacoast Makah at Neah Bay on the Pacific to buy superior canoes. of know-how by families and house-groups of know-how by maintaining competitive was the basis of trade networks. advantage in was highly prized by salmon of the Klickitat for instance, “since it was the [Nisqually],” to give the salmon a cer- dried in a way as the [Nisqually] were not tain flavor which able to produce.” usually expected as well. usually Fall 2005 they have mas- teach what may eventually their teachers, acknowledging tered, always teachers’ active only after their and usually to an end. lifetimes have come West

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Northwest a claim to access rights. The result is to up to, and renews the repute of a formal tradi- broaden the benefit of resources to a wide tional name.170 There is a term for someone circle of relatives, and to restrict the control “who had a big name but pulled it down,” of the manner of use of resources to a few in- xá ?tcn’ [L],171 in social terms a kind of prodi- dividuals who demonstrate particular spiri- gal child that dissipates the wealth of a family tual and ethical merit. by failing to keep up with obligations. Some- one that lives in material poverty but keeps a III. Ownership and Responsibility good name can command wide influence and A. Social obligations allegiance; someone that hoards goods and lives in material comfort but is stingy in meet- In Coast Salish philosophy, the accu- ing social obligations becomes a pariah.172 mulation of property is not an end in itself, rather, it is the means of acquiring capital— If a good name is the standard of wealth social capital—the true source of personal in Coast Salish society, social obligations are status and wealth. Wealth is measured in the savings bank of social capital. Obliga- people (as described supra): a wealthy per- tions must be distinguished from “debts” in son has many “friends” in many places.167 Western legal systems. “Debt” implies a le- Wealth consists not so much in the accu- gally enforceable duty to pay a fixed sum at a mulation of goods or money, but in the ac- prearranged time. While debts in this sense cumulation of potential future claims on are not unknown to Coast Salish customary others’ goods and services.168 By analogy law, in my experience they are relatively un- 173 to Western economics, a wealthy Coast common and insignificant. Social obliga- Salish person holds many people in debt. tions are less explicit, by comparison, and As Suttles has argued, Coast Salish eco- less precise with respect to amount and time. nomic organization manages risk by promot- They arise from social situations, such as an ing broader social networks and diversify- invitation to a feast, rather than contract. Yet ing households’ resource harvesting op- their satisfaction must be witnessed in the tions.169 Greater production of property feast hall, and has an immediate effect on 174 (growth) takes a back seat to greater den- the good name and status of the debtor. sity of social ties and obligations (mobility). Failure to satisfy an obligation publicly and generously, in a way that attracts public ap- The arbiter of wealth in Coast Salish so- probation, has severe consequences for the ciety is the individual’s good name, that is, debtor’s family and community.175 the extent to which an individual earns, lives The spirit of Coast Salish obligations is

167. See supra text accompanying note 60. 173. Fur traders reported debts with relatively 168. See supra text accompanying note 84. explicit terms and conditions among Coast Salish peoples, see, e.g., Suttles, supra note 118, at 194-195, 169. When a man marries his children far and wide but the nature of these legal arrangements may have it “raises him up.” Haeberlin notes, supra note 24, at 5:5- been influenced by the practices of the Hudson Bay 6 (Charlie Jules). Marriage ties diversify the family’s Company and American Fur Company. portfolio of skills and physical assets, including safe harbors in far-flung villages. SUTTLES, COAST SALISH ESSAYS, 174. Snyder notes, supra note 25, 109(3): 58 (In- supra note 1, at 20-24; Suttles, supra note 114, at 197. terview of Tom McLeod). 170. Suttles, Central Coast Salish, supra note 26, at 175. Likewise, it was considered appropriate to settle 464-465; Collins, supra note 99, at 220-221. all disputes, including homicide, through payment of compensation negotiated by the affected families’ 171. Haeberlin notes, supra note 24, at 1:18 (Wil- ’ spokesmen or “lawyers.” Id. at 35:5 (Sam Cassimere); see liam Shelton). Compare xícil’ [L], “shame.” also Suttles, supra note 114, at 197-206 (synthesis of early 172. Id. observations of Coast Salish dispute resolution).

24 West Northwest 25 Every- 183 note 1, 18-19. at 108(2): 58. Coast Salish Property Law Coast Salish [L]. supra , note 24, at 31:33 In the case of a of the property note 24, at 36:29-30. ? 184 SSAYS ? i áb note 25, at 108(2): 37. supra see also id. E . at 108(2): 39. supra Id control supra ALISH S note 25, at 108(6): 77 (Alfred OAST . at 34:15 (Sam Cassimere). , C supra id . at 109(2): 68; Id UTTLES Inheritances are inchoate until relatives 184. “Wherever they had a hunting-ground they 180. Haeberlin notes, 181. Snyder notes, 182. Haeberlin notes, 183. S 183. must pass to individuals. always had a man living there to hold it for the tribe.” Snyder notes, Edwards). “Families might own special fishing grounds, but you had to ask the owner to let someone fish there.” one within a reasonable genealogical prox- one within a reasonable genealogical an interest imity to the former owner shares but in the property, descen- hunting or fishing site, a great many wildlife but dants may share the use of the as the ac- one or two persons are regarded law, tual owners. By analogy to Western Western contract law. The adequacy and The law. contract Western nature is not deter- the consideration of to but is left contract, however, mined by the secured by will of the debtor, the free has an important name. This good debtor’s In the court of Coast Salish leveling effect. social debtor must be gen- public opinion, a say that everyone pays in erous, which is to or her means. The rich proportion to his more, rather than pro- pay proportionately to meet their social respon- portionately less of taxing the rich by mean sibilities. Instead levy and redistributing to of a standardized institutionalized aid, the the poor through equivalent Coast Salish system places the on all pay- of a steeply progressive sales tax ments for services. B. Merit, status and stewardship living or recently deceased, of the owner, marriage assert claims. Since long-distance households is encouraged, a multitude of property of are potential claimants to the an important person or fore charging for services. (John Seattle); Private 181 177 Likewise, in- . at 38:19-21 (Little Id note 24, at 9:14-15. 180 note 25, at 108(2): 19 By the same logic, supra supra If a healer is not paid 179 doctor was not paid for his 178 The wolf went on its way, The wolf went on 176 dáhadad power into it. Then the medicine would The general rule, then, is that Snyder notes, . at 12:25-36 (outlining several stories Id 182 Id. see also Although the most important obliga- Although the most important 176. Haeberlin notes, 177. 178. 179. “If a 179. dáhadad herited names “were the only legal names” herited names “were the only legal because they were for. paid payment effectuates the transfer or use of like the rule of consideration in property, services, then he would apply the herbs without putting the than water.” not be more effective well, the cure will fail. should if a cure fails, payment already made be returned by the healer. that emphasize the importance of paying for others’ expertise: “I will do well for what I have been paid.”). knowledge such as fishing skills and charms knowledge such as fishing skills not work, but if it does must also be paid for, of the a partial refund may be expected teacher. Sam); tions arise from public feast hall transactions tions arise from public feast hall memori- such as marriages, namings, and apply to als, the same general principles knowl- private transactions involving power, Salish edge, and inheritances. Coast may be peoples believe that unpaid work faulty or ineffective. but Josephine’s grandmother found a deer grandmother but Josephine’s same place for the next five left for her at the terms, both human and years. In traditional leaving well; generously, wolf had behaved when, free to choose how, the other party to reciprocate. and in what coin (“They give [the healer] valuable[s] for his work, be- it endangers his cause if there is a mistake for a singer, life.”). A doctor must be established be- [the patient’s] expressed in a story told by Josephine LeClair in a story told expressed had grandmother century ago. Her nearly a its a bone stuck in wolf that had found a the free, saving pulled the bone throat and the wolf of- When in agony. wolf from dying need not “You she said fered to repay her, but remember me and give me pay me now, something later.” Fall 2005 West

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Northwest these individuals hold the property in trust custodian’s offspring,187 together with the for the rest of the kin group that can make site-specific teachings that would give them legitimate claims as heirs. As trustees for favorable odds of acquiring a spirit power, their relatives, “owners” avoid limiting the and eventually inheriting the site. use of the property by other heirs. How- ever, an “owner” that is generous185 and a In this way good stewardship is re- good steward can manage the property in a warded with high social status and consid- way that earns renown, makes “friends” and erable economic security in the form of so- attracts advantageous marriages. Everyone cial obligations (calls on others’ resources), that uses the property comes under obliga- and these rewards can be inherited by de- tion to reciprocate in some way. serving offspring. Although productive resources such as hunting and fishing sites The choice of an individual owner or are conceptualized as the joint property of custodian for an inheritance is based broadly large kinship groups, they have individual on merit. What constitutes merit may de- managers with strong incentives to conserve pend on the particular property. A fishing as well as share. site is likely to be entrusted to someone with

C. Principles into practice

e e an “undere the water” spirit. power such as

w Yáx me l [S], Tíyúl bàxad [L], or dx - It is difficult to ascertain the long-term ? ? Hí id [L] that is good for getting wealth by sustainability of Coast Salish economies or 186 catching fish. Evidence of possessing such the extent to which customary law contrib- a power must be demonstrated by using the uted to sustainability. Archaeological evi- fishing site very productively. A valuable fish- dence from scattered excavations around ing site is therefore entrusted to an excep- the Salish Sea suggest a significant shift in tional fisherman—someone possessing the focus from hunting large terrestrial and ma- skills, knowledge, social influence, and pro- rine mammals to large-scale harvesting and fessional self-interest to manage the fishery processing of fish, waterfowl, and shellfish sustainably. Indeed, the custodian of a valu- about 2,500 years ago, after which there was able fishing site may be said to labor under little apparent change in diet or procure- two mutually reinforcing kinds of self-inter- ment methods until the arrival of Europe- est in the site’s long-term productivity: con- ans in Mexico.188 One focused study of a tinuing to be able to harvest large quantities number of adjacent occupations on Geor- of fish to distribute at feasts and continuing gia Strait suggests continued variability in to be able to share the use of the site gener- diet and human numbers over the past ously with relatives who ask to fish there. 2,500 years, however.189 Lepofsky observes Feasting and sharing will both make the that the appearance of large-scale fishing custodian’s name great, and make the cus- technology was preceded by a change in the todian wealthy in social obligations. Further- regional climate regime towards cooler, wet- more, a great name can be bequeathed to a ter conditions, and suggests that Coast

185. Sometimes the custodian demands pay- 187. The term “offspring” is used here to under- ment for the privilege, whereas others may be “good- score the fact that a custodian might favor grandchil- hearted” and consent out of generosity, which makes dren, the children of siblings, or even the children of their names even greater. Id. at 109(2): 68, 73. cousins, over his or her own.

188. Trosper, supra note 2; STEIN, COAST SALISH PRE- 186. Haeberlin notes, supra. note 24, at 34:e 17-19,. 35: 4. “Power boards,” skwdíli c [L] or skw níl L c [S], HISTORY, supra note 33, at 16-24. are also said to be good “for getting salmon and other 189. Cannon, supra note 42. fish.” Id. at 10: 17-18.

26 West Northwest IN OF

195 39-67 RISIS OLICIES ANGS 27 P , C note 5, at RISIS G OMMISSIONER note 11, at C AND C , supra , OODWIN Report of observa- Coast Salish Property Law Coast Salish THE OBSTER supra

G , C ISHERIES L OF

F HE ROBLEMS , T R. M , P EPORT OURNALS note 45, at 61-102; ONTROVERSY R J C in AMES ORTHWEST , J EOPLE N supra TCHESON IGHTS : P ANGLEY R THE A

L see also OF 1889-91, at 343-372 (1893).

ORT AMES ISHING ISHERIES J , F F ISTORY S ’ ISHERIES See H ARSH & F (1988) (classic study of customary law pro- ORLD 194. Washington Department of Fish and Wild- 195. ISH MENTAL W AINE F (1999); B tions respecting the oyster resources and oyster fishery of the Pa- cific Coast of the United States M prietary fishing); 123-142 (1991). By comparison, a fish or wildlife regulator is By comparison, a fish or wildlife and does not promoted for conserving fish, his/her not give away the fish saved from system, own stock. In our “modern” legal wealth bureaucrats give away other people’s little in- but not their own, hence they have centive to conserve; indeed, bureaucrats often try to satisfy all of their constituents by giv- (that is, user groups or “stakeholders”) ron 37, 125, 155; Charles H. Townshend, life, Species of Concern in Washington State, http:// wdfw.wa.gov/wlm/diversty/soc/soc.htm (last visited July 1, 2005) (status of Washington wildlife under the state and federal Endangered Species Acts). do not make the connection explicitly. The explicitly. the connection do not make are family living resources most important individual “own- but they have inheritances de- good names whose ers” or custodians, that Hence a place pend on their generosity. feed hundreds of people may employ and a single manager for a life- is entrusted to marriage prospects, and time, whose status, prospects of his/her entire the status and will turn on the continued extended family wildlife, food flow of products—fish, estate. Unlike a public plants—from the identity is obscure and em- servant, whose a Coast Salish custo- ployment is secure, visible, and dian is motivated to be very custodian therefore very accountable. A generous must continue to be personally behind bu- to all comers, and cannot hide every- reaucratic procedures or rules: nearly claim one can make some kind of plausible own personal wealth. on the custodian’s 23-50; Boxberger, MacClachlan, F OF THE in vi- 191 194 192 , N E (2003), N 267-293 ; A note 1. ALMON ONFERENCE NTIQUITY Shell Middens Yield S C supra A , and that many 311 (2003). AKING 193 The Importance of Human ESEARCH Climate Change and Culture MERICAN R COLOGY III, M and by organizing the and by E OUND 190 , 70 A , 70 S AYLOR Cultural Diversity UGET P E. T ESTORATION Norman A Easton, The Underwater Ar- Russel L. Barsh, THE

http://www.psat.wa.gov/Publications/ OF

OSEPH See , 21 R , 21 see also In principle, Coast Salish law rewards Until finer-scale data on changes in Until finer-scale 193. J 191. Suttles, 190. Dana Lepofsky, Ken Lertzman, Douglas Ken Lertzman, 190. Dana Lepofsky, 192. ROCEEDINGS available at 03_proceedings/PAPERS/ORAL/1a_bars.pdf (last visited Sept. 23, 2005); Russel L. Barsh, Rich Cultural Deposits for Fine-scale Modeling of Pre-industrial Ecosystems P Change on the Southern Coast of British Columbia 2400-1200 An Hypothesis cal. B.P.: chaeology of Straits Salish Reef-netting (1985) (unpublished M.A. thesis, University of Victoria) (on file with the author) (discussing the antiquity of reef nets). individual skill and hard work; motivates individual skill and hard work; abun- individuals to produce and share kinship dance; promotes an all-inclusive freeload- amongst peoples; and discourages design for ing. By inference, it is also a Salish elders although Coast sustainability, Hallett, and Rolf Mathewes, (2005); Intervention in the Evolution of Puget Sound Ecosystems IV. CONCLUSION IV. traditionally important food species such as traditionally important food species oys- Chinook salmon and native “Olympia” ters are today threatened or endangered. wider regional scale social and trade net- and trade scale social wider regional refers to as the Coast works that Suttles and regards as the de- Salish Continuum, of Coast Salish cultures. fining institution sustainability the social and environmental civilization must remain of Coast Salish It is difficult to ignore largely conjectural. and the fact that early European explorers of fish settlers enjoyed a great abundance of years of and shellfish, after thousands Coast Salish harvesting, Coast Salish population and harvesting over Coast Salish population scale are available, time at the decadal Salish peoples adapted to the more vola- adapted Salish peoples new technologies by developing tile climate reef-nets, such as Fall 2005 West

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Northwest ing away more fish than they have.196 Treating each individual must also earn and publicly fish as shared or common property creates per- demonstrate personal merit, including the verse incentives for harvesters to catch more skill and “inspiration” (spirit power) to make fish than they are likely to eat or sell. Further- estates sustainably profitable. more, since a harvester cannot “save” fish for the next season: any fish she leaves uncaught The importance of the incentive system will be caught by another harvester.197 embedded in traditional law is highlighted by the fate of Puget Sound salmon fisheries Intellectual property forms the basis of after judicial implementation of Coast Salish Coast Salish property law. Without family treaty fishing rights in 1974.198 The federal teachings, a person does not know which court rejected arguments that fishing sites estates to claim, or how to use them. With- are individually or family-owned, and chose out a close kinship connection with the tra- instead to allocate fishing areas by “tribe.”199 ditional owners of an estate, a person can- By court order, then, traditional custodians not acquire the teachings that pertain to it. were divested of their control of access to In this way intellectual property controls fishing sites, and replaced by elected tribal access to all real property in Coast Salish leaders, tribal government bureaucrats and law. The primacy of intellectual over real biologists. Freed from kinship restrictions property means that a person must be part on their access to particular sites, Coast of a respected family, and must be hard Salish fishermen moved their gear to the working and intelligent, as a pre-condition of most productive sites (highest catch per unit acquiring access to real property. “Ignorant” of effort), regardless of their kinship relations persons are excluded from managing or us- with the traditional custodians, and these ing realty, except as the employees or sites were fished more heavily.200 Valuable “slaves” of people of substance and educa- traditional reef-net sites in the San Juan Is- tion (sii ?em´ ). Social class, in the special lands historically had one or at most two sense that it exists in Coast Salish cultures, “owners” and supported up to a dozen determines who holds responsibility for the “gears” (nets); after the court’s decision, conservation of living resources. But class purse seine boats from seventeen different is not a static grouping. Birth into a high- “tribes” descended on each of these sites.201 class family confers definite advantages, but Reef-net harvests fell from thousands of fish

196. See BARSH, FISHING RIGHTS CONTROVERSY, supra note Passenger Fishing Vessel Association, 443 U.S. 658 (1979). 5, at 12-16; Barsh, supra note 83, at 85-102. Similarly, 199. United States v. Washington, 520 F.2d at 690-691 Canada set quotas for the North Atlantic cod fishery (citing Whitefoot v. United States, 293 F.2d 658, 693 (1961)). unsustainably high to satisfy fishers and industry. Jef- frey A. Hucthings & Ransom A. Myers, What Can Be 200. Barsh, supra note 5, at 77-102; Barsh, supra Learned from the Collapse of a Renewable Resources? Atlantic note 83, at 99-101; Russel L. Barsh, Common Goods and Cod, Gadua morhua, of Newfoundland and Labrador, 51 the Economics of Salmon Escapement Goals, in INTEGRATION: CANADIAN JOURNAL OF FISHERIES AND AQUATIC SCIENCES 2126- PROMISES AND PROBLEMS IN THE NORTHWEST SEAFOOD INDUSTRY 2146 (1994); Jeffrey A. Hutchings, Carl Walters & Rich- 56, 61-62 (Rodner R. Winget ed., 1982). ard L. Haedrich, Is Scientific Inquiry Incompatible with Gov- 201. Russel L. Barsh, Ethno-genesis and ethno- ernment Information Control?, 54 CANADIAN JOURNAL OF FISHER- nationalism from competing treaty claims (May 13- IES AND AQUATIC SCIENCES 1198-1210 (1997). 14, 2005) (unpublished manuscript presented at the 197. Gordon, supra note 5; CRUTCHFIELD AND University of Washington, Conference on Pacific North- PONTECORVO, supra note 5, at 12. west Indian Treaties in National and International His- torical Perspective, on file with the author) (describ- 198. United States v. Washington, 384 F.Supp. 312 ing evidence submitted by various tribes to justify their (W.D. Wash. 1974), aff’d, 520 F.2d 676 (9th Cir. 1975), claims to fishing rights in the San Juan Islands). aff’d sub nom. Washington v. Washington State Commercial

28 West Northwest 29 Coast Salish Property Law Coast Salish avail- at 2. The point Id. Past and Present:

203 , 37 J. CANADIAN and they contrib- Netukulimk 204 This is not to lay the blame for not to lay the blame This is Russel L. Barsh, 202 See http://www.psat.wa.gov/Publications/ 202. Russel L. Barsh, field notes 2002-2004 (on 202. Russel L. Barsh, field notes 2002-2004 the Office of 203. Puget Sound Action Team, 204. file with the author) (including interviews with Jack file with the author) (including interviews all Trenens, and John Ralph Lilly, Giard, Pete Granger, of whom fished traditional reef-net sites on Lopez and Stuart Islands, and with Cleve Vandersluys, who set anchors for the reef-net fleet from the 1940s to 1960s). 2005-2007 Puget State of Washington, Governor, Sound Conservation & Recovery Plan 27 (2005), able at biennialplan/pscrp_05-07_final-web.pdf (last visited Dec. 21, 2005) (“The causes of salmon declines have been broadly categorized as habitat destruction, harvest management, hatchery management, and hy- dropower projects.”). The plan gives highest priority to habitat protection and restoration. Míkmaw Ethics and the Atlantic Fishery STUDIES 15 (2002) (comparing recent changes in the Canadian lobster fishery). is simply that tribal fishermen were no is simply that longer self-regulating of salmon stocks that uted to the decline to conserve for centu- they had managed confiscated nets at tribal ries—as piles of attest poignantly. offices fishery department per tide per gear, to a few hundred fish per to a few hundred per gear, per tide season. the entirely at stocks and harvests declining fishermen. Habi- Salish treaty door of Coast failure of state regulators to tat loss and the fishing adequately to scale back non-treaty the treaty harvest are un- accommodate major factors. doubtedly also Fall 2005 West

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Northwest