Contingent Proprietorship: an American Indian Approach to Resilience

CONTINGENT PROPRIETORSHIP: AN AMERICAN INDIAN APPROACH TO RESILIENCE

By

RONALD L. TROSPER, Ph. D.

Applied Indigenous Studies

Northern Arizona University, Box 15020

Flagstaff, AZ 86011-5020, USA

928-523-6653

fax 928-523-6706

Presented at the Second World Congress of Environmental and Resource Economists

Monterey, California, June 26, 2002

JEL Codes: Q15, D70, H23, Q22

Abstract

On streams in Kootenai lands in the Pacific Northwest, a Guide Chief allowed the construction of fish weirs subject to weir operators sharing their catch and not harming the stream. The Federal Power Act allowed licensing hydroelectric dams; section 4(e) declared that federal reservations were to be protected. In 1930, the Montana Power Company received a license authorizing construction of Kerr Dam on the Flathead Indian Reservation. The license expired in 1980. When the Company applied for renewal, the Confederated Salish and Kootenai Tribes insisted the license address environmental concerns. Consequently, the Interior Department began to use its section 4(e) enforcement powers, which the Federal Energy Regulatory Commission had to accept. After starting litigation, the parties reached settlement in 2000. This paper examines the extent to which the settlement’s governance structure approximates governance principles used by Northwest Indians in managing fisheries and other resources. In addition to a land ethic, these principles included exchange systems based on public reciprocity. Chiefs and titleholders had to be generous facilitators. Leadership authority over land was contingent upon adherence to ethical and generous behavior as well as good management. Parts of these ideas are at work in the new Kerr license. Contingent proprietorship required the dam operator to comply with restrictions to protect the lake and river as well as mitigate effects of the dam. Reciprocity was not present; indigenous leadership rules existed to an extent. The experience of relicensing Kerr Dam shows that contingent tenure provided leverage to move ecosystem management toward resilience, even in the absence of all the indigenous governance rules.

CONTINGENT PROPRIETORSHIP: AN AMERICAN INDIAN APPROACH TO RESILIENCE[1]

Searching for Sustainability and Resilience

Because humans are so important in ecosystems, understanding resilience requires analysis of human institutions. To be resilient, an ecosystem requires mechanisms, institutions or processes that bring the system back to normal conditions when it strays far from those conditions. In response to an extreme shock or a series of small decisions that create problems, more resilient ecosystems are able to absorb larger perturbations without changing primary structures and processes. In a dynamic system with an adaptive cycle, a resilient system perpetuates the current cycle.

This paper focuses upon an institution, contingent proprietorship, one of the rules used by indigenous societies in the Pacific Northwest of North America in dealing with problems. A proprietor controls a parcel of land or a key harvesting site, may exclude others, may assign the land or site to another person, but may not sell. If he misuses the property, a contingent proprietor may have his proprietorship removed or he may be punished. Misuse of the property can be defined as actions that harm an ecosystem or the land itself. Because contingent proprietorship was one of many rules used in the Pacific Northwest Coast, this paper also briefly describes the other rules as well.

Many are skeptical about the applicability of indigenous rules to today’s problems. The purpose of this paper is to examine an example that shows that a rule like one of those used by some American Indians has been used in contemporary conditions to improve some people’s relationship to their environment. In particular, Section 4(e) of the Federal Power Act (1920) allows the Secretary of Interior to modify hydroelectric licenses:

Provided, that licenses shall be issued within any reservation only after a finding by the Commission that the license will not interfere or be inconsistent with the purpose for which such reservation was created or acquired, and shall be subject to and contain such conditions as the Secretary of the department under whose supervision such reservation falls shall deem necessary for the adequate protection and utilization of such reservation.(16 U.S.C.A.§ 797 (e))

Because of this law, operation rules for Kerr Dam were changed and the operator of the dam was required to engage in mitigation measures in order to protect river and lake ecosystems on the Flathead Indian Reservation in western Montana. When the original license for Kerr Dam was issued in 1930, this provision was not enforced; but when the Montana Power Company applied for a new license in 1980, after the 50 year term of the original license, the contingency of this provision was applied. The Montana Power Company’s proprietorship of Kerr Dam was a case of contingent proprietorship.

The Federal Power Act’s 4(e) conditions place the Secretary of the Interior in a position similar to that of a Guide Chief of the Upper Kootenai, some of whom now live on the Flathead Indian Reservation. Kerr Dam occupies a major fishing site used by the Kootenai. An anthropologist reported the following rules for use of fishing sites:

An Upper Kutenai could build a fish trap only after obtaining permission from the chief. No one could build more than one. The fisher was given a definite franchise for a specific stream, in return for which he entered into a contractual relation with the band in the person of its chief. The chief guaranteed him exclusive right to the site, but the owner had to share the product of the weir with some eight or nine families. Since he got the lion’s share of the trout per diem in the right season, this sharing worked no hardship on the fisher. . . . But they [the fishermen] did not own the stream. This was the property of the people at large under the direction of their principal socio-economic functionary, the Guide Chief. The stream could not be abused or the fishermen were punished. As a rental, so to speak, of the resources on the public domain, they had to provide for the public. (Turney-High 1941, 47, 52)

This quotation contains reference to many of the elements of fishery management that contributed to the success of Indians in the Pacific Northwest: contingent proprietorship; the contingency depended upon a concept of not abusing a stream; exclusive use of sites when granted by a chief; and a requirement to share the catch with other members of the community. Although the quotation does not describe the public accountability or other characteristics required of chiefs, it does describe the role of chiefs in knitting together the system of ecosystem caretaking.

This paper grows out of a larger project by the author in pursuit of the answers to the following four questions: (1) Which societies in aboriginal North America had a record of sustainable relationships to their ecosystems? (2) What political and economic institutions characterized those societies? (3) Are there good reasons to think that the institutions created incentives that contributed to sustainability? (4) If so, might use of those institutions contribute to contemporary efforts to achieve sustainability? Although this paper is about the answer to question 4, it provides brief answers to the first three questions.

Understanding the institutions used by peoples of the Northwest Coast of North America to maintain themselves in balance with the resources of their region, principally salmon, contributes to knowledge about resilience of linked social and ecological systems. While some are skeptical about the idea that Indians in North America managed to have sustainable relationships with their homelands, archeologists have provided clear evidence that such was the case on the Northwest Coast. This paper begins with a summary of the archeological evidence and continues with information about fishing technology and population levels that suggest resources could have been abused. The paper then summarizes the institutional rules observed in those societies after contact with Europeans, indicating why the rules make sense. Next, the paper examines the impact of the Federal Power Act’s 4(e) rule on the relicensing of Kerr Dam. The final section examines the extent to which all the rules like those in the Pacific Northwest were applied in the Kerr Dam case.

Evidence from the Pacific Northwest Regarding Sustainable Use

The Archeological Record

Because nothing has endured forever, Constanza and Patten (1995) recommend that a definition of sustainability contain a description of the time period that is reasonable. A society was sustainable that survived to old age, that persisted as long as other societies have lived in balance with their environments. To apply this standard, one needs to have a baseline for comparison. The peoples of the Northwest Coast of North America set a high standard for the criterion of persisting for a long time with an unchanged way of life. The archeological chapters of volume 7 of the Handbook of North American Indians suggest that many of the cultures of that area established the patterns of their pre-contact cultures around 500 B. C. Donald Mitchell, for instance, summarizes the Kwakiutl evidence as follows:

In most important respects, this late (post-500 B. C.) culture type is recognizably like the way of life described for the Kwakiutl people. (Mitchell 1990, 355.)

Just to the south, the Strait of Georgia period is given the dates 400 A.D. to 1800 A.D., and in the Lower Fraser River Canyon area, the last culture type is given the time period 500-1800 A.D. (Ibid., 340,349)

On the Queen Charlotte Islands, the evidence shows an even longer period of continuity:

The Graham tradition begins about 3000 B.C. and lasts until European contact, A.D. 1774 for the Queen Charlotte Islands . . . (Fladmar, Ames and Sutherland 1990, 235).

Wesson (1990) reports that evidence from the Ozette site on the Olympic Penisula suggests that cultural continuity extended over 2,500 years.

The chapter on the Lower Columbia River reports the evidence as follows:

Although the cultural chronologies for the Lower Columbia area clearly show stylistic change in artifact styles, as well as some probably functional additions or replacements of artifact classes, no fundamental change in the lifeway seems indicated for the last 3,000 years. (Pettigrew 1990, 522)

In their book reviewing the prehistory of the Northwest Coast, archeologists Ames & Maschner summarize as follows:

Most archeologists working on the coast feel that the cultures of the Late Pacific [AD 200/500 to AD 1775] differed little, if at all, from those observed and recorded by the first European visitors to the coast. … As we have seen, there is reasonably strong evidence for cultural continuity on the coast overall for at least the last 3,000 years. (Ames and Maschner 1999, 95)

The archeological record reveals that the institutions in place upon contact with outside explorers were probably those that contributed to the long record of cultural continuity that has been observed. That this continuity can be identified with the current idea of “sustainability,” however, requires attention to the size of the human economy in relation to the ecosystems of the area.

Fishing technology

Some may doubt that the Indians of the Northwest Coast had the technology or the population levels necessary to make sustainability a serious policy issue for them; but recent evidence on both counts suggests that they had the technology to harvest more salmon than they did, and population levels were high enough to make excessive harvest a possibility.

Fishing technology consists of boats and fishing equipment, knowledge of the runs, and storage techniques. Much evidence exists that native technology was sufficient to lead to over-harvest if population and consumption levels were high enough. Along the Columbia River, in Puget Sound, along the Fraser River, on the coast of present-day Canada, and in Alaska, white settlers learned their fishing techniques from the natives. These were the techniques that the settlers (and natives they hired) used to exhaust the runs in the early twentieth century.

In his study of the fishing industry on the Columbia River, enthohistorian Courtland Smith describes the technical situation as follows:

Having this assortment of gear, Native American fishers were well equipped to catch salmon in the various conditions of the river. In fact, their gear encompassed a range of variability comparable to that of the white fishers who exploited the salmon resources as a commercial enterprise. (Smith 1979, 11)

In her expert testimony for United States v. Washington, anthropologist Barbara

Lane summarized the situation for the tribes that were party to the case:

Traditional Indian fishing methods were highly efficient. These methods survived where Indians were allowed to maintain them; that is, where they were not outlawed or where Indians were not prevented access to areas where the methods were feasible. (Lane 1973a, 40-41)

Lane’s report provides detailed information for each of the tribes that were party to this suit, which led to the well-known “Boldt Decision” that the treaty tribes of western Washington had rights to half of the salmon and steelhead fishery in that state (Cohen 1986). Robert Higgs (1996) describes how fishing in Washington State became less and less efficient as it moved away from the mouths of rivers, into Puget Sound and eventually into the ocean. He argues that traditional Indian methods were the most efficient.

As with the Indians living on the Columbia River and living in what was to become western Washington State, Indians in British Columbia were also excellent fishermen:

The technology of commercial fishing was developed from the expertise of Indians, and it was their equipment that helped start and build the industry. Especially important was their knowledge of fish movement and small boat navigation in the uncharted tidal channels of the coast. Indian women were skilled in fish cleaning and preservation and needed little or no training to work in canneries . . . and salteries. (Kew 1990, 162-163)

In Alaska, use of a key technique by natives, the fish trap, was outlawed in 1889 and by the 1930s the use of fish traps by non-natives was the cause of excessive harvest:

In 1889 federal legislation was enacted that outlawed aboriginal traps and weirs. A few years later, legislation was adopted that permitted commercial fish traps to be placed in the mouths of salmon streams. . . . The fish traps accounted for 70 percent of all salmon taken in southeast Alaska during 1925 to 1934. ... It was quite evident that the salmon stocks were decreasing and that fish traps were responsible for the decline. By 1953, President Dwight Eisenhower declared the fishing communities in southeast Alaska disaster areas. (Worl 1990, 153)

The characteristics of gear and boats are not the whole story regarding fishing success. Fishermen need to know the locations and times that are most important, particularly for a migratory species. As Kew (1990) reports, the non-native fishermen who maintained an unsustainable harvest for the canneries of the early twentieth century did so using the knowledge gained from native fishermen. Many of the canneries, in fact, employed native fishermen. Non-Indians required more than ten years to learn how to successfully employ reef nets after finding that salmon traps taken from other regions did not work in the Strait of Juan de Fuca (Lane 1973d, 12-13). Reef nets are still in use today.

Canneries thrived on a preservation technique that allowed sale of salmon throughout the world. Native peoples had stored salmon in quantities that allowed preservation for their own use throughout the year. The native techniques were based on drying salmon rather than canning it, and are extensively documented by Hilary Stewart (1977) in her book on Indian fishing, and by Barbara Lane (1973a-d) in her expert testimony. Ames and Maschner (1999, 146) report that drying techniques have been used since at least 1800 B.C.

Given that the technology existed to harvest and store fish in great amounts, what remains to be shown is that population levels on the Northwest Coast were great enough to cause potential stress on the fishery resources.

Population

The latest data on aboriginal population levels, combined with assumptions about levels of consumption, give estimated harvests for the Columbia River and the Fraser River that are approximately the size of an estimated level of sustainable catch. The uncertainties are large, however, for all three components: population, consumption per capita, and the sustainable catch.

Per capita levels of consumption matter for an accurate estimate of the impact a society places on its fisheries. All authors who have considered the issue have used 2000 calories per day as estimated human subsistence requirements. Weinstein and Morrell (following Schalk 1986) point out that fish were used to feed dogs, provide oil for cooking, and to serve as trade goods with other Indian communities. For these reasons, estimates based only on human consumption are probably too small.

Smith (1979, 5) cites Hewes’ estimate that the native population of the Columbia River would have harvested 18 million pounds of salmon a year. Smith gives pounds caught per year for all species from 1866 to 1973. The high seems to be 49.5 million in 1911. The modern low is 5.2 million in 1960. The harvest during the main canning period, 1874-1948, is 21 million to 45 million pounds per year (Smith 1979, Appendix B). It appears that the population estimated by Hewes was harvesting a substantial amount which was less than the levels which led to decline in the salmon resource but greater than the modern lowest levels of harvest.