Justifying Injustice: Law and "Tradition" as Moral Argument?
This article is a response to an article in Cultural Survival Quarterly 12(3), by Fay G. Cohen and Vivian L. Bowden, entitled "A Legacy Restored." It is part of an ongoing dialogue on the Boldt Decision, a landmark ruling on fishing rights in Washington State.
Fifteen years have passed since Federal Judge George Boldt passed the "Boldt Decision," splitting the Washington State salmon fishery between common property fishermen and certain Indian tribes of the region. For those tribes, signatories to 1855 treaties with the US government, the decision provided legal vindication of a continuing struggle to affirm their fishing rights after a century of discriminatory state policies. In the wake of the decision, however, a disproportionate share of the treaty-tribe salmon catch has been claimed by a small class of private entrepreneurs who operate capital-intensive fishing gear - often at the expense of traditional tribal inshore and river fisheries. As the treaty Indian fleet expanded its catch from 5 to 50 percent of the harvest, common property fishing communities, which had existed for at least three generations prior to the ruling, suffered economic hardship.
Writing in Cultural Survival Quarterly 12(3) in 1988, Fay G. Cohen and Vivian L. Bowden hail this process as "A Legacy Restored." Arguing that private property and hierarchy are "traditional" in Northwest Coast culture, they refuse to criticize stratification and inequity in the distribution of the treaty-Indian salmon harvest. Moreover, they reduce those cultural and economic impacts of the Boldt Decision, which I briefly discuss in my article in Cultural Survival Quarterly 11(2), "The Unintended Consequences of the Boldt Decision," to issues of legality. The fishing rights issue should be strictly understood as the "enforcement of a contract concerning rights to property."
Lacking rights to private property in the salmon fishery, common property fishing communities are denied cultural status and voice in the legalistic frame through which Cohen and Bowden perceive the Washington state salmon fishery. They variously categorize common property fishermen as "non-Indians," "white," and "other resource users." Ironically, many of these "non-Indians" are members of Tlingit, Haida, Tsimshian, and other Native American groups who do not possess treaty rights in the salmon fishery. "White" is an equally imprecise description of common property fishermen, obscuring the creole character of the fishery that has Native American, Arctic European, Mediterranean, and Vietnamese roots. Neither in their CSQ article nor in their 1986 book (Treaties on Trial) do Cohen and Bowden seriously explicate the identity and perspectives of these "other resource users." They completely ignore the formative historical context of class struggle against enclosure of the marine commons.
In CSQ 11(2), and more extensively in the book A Sea of Small Boats, I maintain that fishing communities are not blank slates upon which a more "just" social order can be written by the state. Social engineering that suppresses preexistent cultural conceptions of sea tenure leads directly to social splintering, new forms of inequity, and a legitimation crisis for state policy. For that reason, I explore the cultural context of treaty-tribe and common property fishing communities and contrast the legal and moral rationales for federal intervention with the unintended consequences that have ensued. Against a background of continuing contentiousness and litigation, I argue for greater self-management of fishing communities, intercultural dialogue, and a consensus-building process.
Misrepresenting my article as an assault "by implication" on the treaty Indian fishing community, Cohen and Bowden choose to insinuate bigotry rather than face the ironies involved in the use of state power to refashion the social order. They contend that by criticizing post-Boldt economic stratification and the move to a capital-intensive treaty-tribe fishery, I "emphasize the greed of treaty fishermen" and hold that Indians are "corrupted by profits."
Cohen and Bowden do no service to the region's fishing communities by refusing to address concrete cultural realities and to hear associated moral arguments that are not premised upon the assumed validity of state power. Both treaty-tribe and common property fishermen act and speak in terms of the way things ought to be. It is these contrasting "ought"s which must be explored in pursuing a consensus. Sheer legality is not a moral justification.
If there is to be a secure future for the fishery, common property and treaty-tribe fishermen must develop a consensus, just as alliances have developed between Indians and rubber tappers in their common use of the Amazon rain forest. The regional fisheries face real problems of common concern to both treaty-Indian and common property fleets, none of which surface in Cohen and Bowden's uncritical brief for current management.
Industrial and timber interests chafe against the legal protections guaranteed to the salmon resource by treaty right in Phase Two of U.S. v. Washington (1974). Taiwanese and Japanese high-seas gillnet fleets, operating illegally in the North Pacific, hammer returning stocks. Explosive commercial and residential development of the Puget Sound Basin threatens spawning habitat. Powerful interests push to enclose many areas of Puget Sound used for common property and treaty-tribe fishing in order to pen-rear salmon and farm nori - despite ecological dangers. The state government gives priority to these projects.
Simultaneously, recreational and tourism interests, backed by Washington State's governor and his fisheries agencies, now clamor for drastically restricting - and ultimately eliminating - common property commercial fishing. Arguing that it is irrational to maintain common property commercial fishing communities given their marginal incomes in the post-Boldt era, these interests believe salmon should be dedicated to drawing fishing tourists through the state's seaside motels and gift shops.
Consensus and Law in the Fishery
All fishing communities of the region must develop a consensus around common threats and needs. Such a consensus evolves through active alliances among the communities themselves, not simply as a result of "the enforcement of a contract." Without some social consensus regarding fisheries, the rights of the treaty-Indian minority will become a "legal victory and political defeat" (Bruun 1981). Likewise, the livelihoods of common property fishermen, the recreational needs of the general population, and the life of the region itself will be damaged as industrial and development prerogatives are claimed by the highest bidder in the absence of a united salmon constituency.
Viewing the Puget Sound salmon fishery with legal and managerial blinders, Cohen and Bowden do not understand the need for consensual process in sustaining fishing communities. They mistake bureaucratic jurisdiction for democratic expression, asserting that state "agencies represent non-treaty fishermen." Responding to my work, they hold that notions such as "popular legitimacy" and "self-regulation" cannot be consensually defined in relationship to people and salmon. Failing agreement on values, they maintain we must accept laws and state policies as intrinsically valid. My argument for consensus building is therefore "disconcerting" because "it suggests change to a system that has been established within the legal context."
This is a dangerously narrow argument. How can one evaluate a law without a moral position? Legalities of private property and contract frequently justify acts of enclosure against indigenous peoples. The justice of U.S. v. Washington does not derive from the legal text itself, but from a moral argument based upon rights of indigenous communities to self-determination.
Treaty-tribe and common property fishermen speak out of particular historical and cultural experiences. It is imperative that these contending voices be heard and understood in cultural context, and not reduced to correct and incorrect interpretations of law.
The Tribal "Ought"
Cohen and Bowden attack Wiley's statement introducing my first Cultural Survival Quarterly article, which says that the Boldt Decision was "a well-intentioned federal attempt to preserve tribal integrity." They call this a "basic misconception" of the "implementation of legal rights secured by treaty." Even in a narrowly legalistic frame, this criticism is questionable. Although the justices did not, it is true, act out of benevolence, the US Supreme Court did make clear that the tribal property right was contingent on the needs of "tribal livelihood" (US Law Week 4985). Moreover, in a larger sense, the Boldt Decision did come about as a result of moral appeals for indigenous rights, which justified the tribal fishing rights struggle to the larger public.
In a moral appeal to the settling population, Chief Sealth, at the 1855 signing of the Treaty of Point Elliot, called for justice for his people and the nature of which they were a part:
Every part of this soil is sacred in the estimation of my people... the very dust upon which you now stand responds more lovingly to their footsteps than to yours, because it is rich with the dust of our ancestors... The White Man will never be alone. Let him be just and deal kindly with my people, for the dead are not powerless. (quoted in Cohen 1986:31)
More than a century later, advocates for tribal fishing rights wrote:
The real issue is the attitude of the society towards difference…
The Indians look at fishing and fishing rights differently, and they fish in different ways…
Indians, insisting on their rights to a unique tribal existence, including fishing, are asserting the right to a freedom of choice - asking to stay out of certain aspects of American society. (AFSC 1986: 193-194)
These are moral appeals for justice. They do not depend on law and the violence of state institutions for their validity, but aim to shape a popular consensus. The salmon stands at the core of a culture complex. Tribal fishing rights are morally just because humans have an intrinsic right to create and maintain a culture based upon an indigenous relationship to the earth.
The Common Property "Ought"
Common property fishermen of Puget Sound argued for the commons and against private property in fishing resources. They understood the Boldt Decision as a basic violation of the notion that "there should be equity in the distribution of rights to compete for, if not share in, marine resources (McCay 1989:204). This idea of "rights of the commoners" (McCay 1989) arose in resistance to the attempted enclosure of marine resources by powerful economic nad political interests in Western Europe and on the North American continent. It was squarely within this history of class conflict that Puget Sound common property fishermen perceived the federal decree. They saw the Boldt Decision as a privatization of the commons, which would ultimately eliminate their class for the benefit of tribal elites and multinational corporate fish farmers.
Branding common property resistance to enclosure as an "outlaw fishery" (1986:91), Cohen and Bowden deny moral voice to common property fishermen and refuse to acknowledge these roots of the common property moral appeal. Understanding culture as ethnicity and morality as legality, they reject my call to recognize common property cultural conceptions - equity, for example - in the management of the fishery, holding that "other fishing groups, even with their ethnic traditions, do not have the same legal status as Indian tribes in the US."
Capitalism: A "Traditional" Way of Life?
Capitalist economic development promotes a logic in which nature is a "resource" evaluated in terms of "exchange value." Within the bounds of this logic, indigenous commitments to specific locales are irrational.
This logic has been promoted by a Washington State fisheries management policy that favors capital-intensive, mobile modes of salmon harvest. By allowing the expansion of capital-intensive modes of harvest that could intercept the salmon in open water before they return to the natal stream, state management policy constitutes de facto discrimination against tribal set-net and small boat fisheries, which generally occur in the river or estuary. In this sense, state policy discriminates against most Indian fishermen both as indigenous people with relations to place and as members of an economic class without capital.
In the aftermath of the Boldt Decision, a capital-intensive model of fisheries harvest is now being adopted within the treaty-tribe fleet, producing gross inequities of distribution to the detriment of tribal set-net and skiff fisheries. This development represents the penetration of a capital-intensive mode of production; it contrasts with traditional river fishing, which "assures a sharing of the community resource,... reinforces community social ties and geographic contiguity, and... provides a focal point for cultural and social identity" (Walter 1978:3).
Cohen and Bowden attempt to naturalize this development by contending that the private property and attendant inequities which "may" exist are features of "traditional" tribal life. "Traditional culture," they write, "had parallels for the present."
Apparently referring to my statement that "traditional tribal fishing has been characterized by strong collective, redistributive and ecological commitments" (1987:44), they castigate me for supposedly ignoring basic ethnography demonstrating the existence of private property among precontact tribes. They retort that Northwest Coast tribes have always "been highly oriented toward private property and distinctions in wealth and prestige."
Cohen and Bowden fail to distinguish between private property in a kin-ordered society and capitalist private property. In the former case, private property is family or clan property; in the latter, it is individual property. In the former case, private property is based upon usufruct and custom; in the latter, upon legal paper validated by the state. There is a significant difference between a salmon harvest conducted by a clan or residence group in place (e.g., Lane 1972:20) and a salmon harvest conducted by individual entrepreneurs operating mobile, capital-intensive (750K) purse seiners financed by a powerful financial institution. Disregarding "trickle-down" ideology, capitalist private property does not imply redistribution or reciprocity, as does kin-based private property - as illustrated, for example, in the potlatch.
Overlooking this qualitative change, Cohen and Bowden assert a specious continuity of "marine fishing":
Although making a firm estimate of the relative economic contribution made by marine and freshwater resources is impossible, the significance of the marine fishery prior to and at the time of the treaties is well-documented. Therefore it is not surprising nor "unintended" that marine fishing is important now.
There were important marine water sites before the treaties, particularly at Point Roberts: fixed sites tied to members of kinship and residence groups. In contrast, dominant elements in the treaty-tribe fishery tend toward a qualitatively different pattern, one liberated from restraints of the kinship site and tied to financial institutions.
The obliteration of indigenous "difference" is not addressed by Cohen and Bowden's citation of marine water continuity and their leveling of past and present. This development is significant not only in terms of its implications for economic survival within native communities but also because it undermines aspects of the original moral appeal justifying a forced income transfer to the broader nontreaty public - that is, "fishing differently," maintaining a "tribal livelihood," and "staying out" of American culture.
Even if one were to grant Cohen and Bowden's formalist reading of present economic relations into the past as accurate, it would be no justification for current practice. "Tradition" could be cited as a defense for slavery. Is that a valid argument for its existence?
Although the Boldt Decision represented the culmination of a just struggle to regain Indian fishing rights, is consequences are hollow if not accompanied by a regional consensus regarding cultural pluralism, economic justice, and ecological vigilance. Such a consensus does not arise through mere obedience to law and does not simply consist of bureaucratic cooperation between tribal and state agencies. It can only develop cultural roots through a mutual process of communication and joint action among fishing groups, including tribal and common property fishermen. Those who wish to contribute to this evolution should be prepared to hear critical voices, including those in the tribal and common property communities for whom the Boldt Decision has not been a "legacy restored."
Indigenous struggles must be understood in their cultural context and specificity. This does not imply a relativistic acceptance of "tradition" or "culture" as a rationale for injustice. These concepts are analytic inventions that only exist in the choices and reinventions of particular people leading particular lives. It is no contribution to indigenous rights to simplify a complex social milieu in order to ratify developing inequities or to ignore hardships wreaked on "non"-people in the pursuit of historical justice. Such reductionism inhibits effective action by obscuring actual developments, obstacles, and possibilities.
1 In 1982, approximately 30 treaty-tribe purse seiners harvested about $6.6 million of salmon, or one-third of the total treaty harvest. That year treaty-tribe purse seine vessel owners averaged more than $200,000 of gross income, a figure eight times larger than that of similarly situated common property fishermen. Such information regarding income stratification between and within the treaty-tribe fleet is difficult to obtain directly. I was able to use Washington State catch statistics and values to work out an approximate breakdown for the 1982 season (see Knutson 1989). Cohen writes that "such information would be difficult to present" because "tribes are concerned that any data on income at whatever level might be used by the state to argue for reducing the Indian share of the catch" (1986:216).
2 Cohen and Bowden feel free to quote out of context in order to construct a straw man. Consider two examples:
(1) I describe the views of common property fishermen, writing: Non-treaty fishermen had, from the beginning of the litigation charged that the moral arguments used to justify a private treaty share in the fishery were simply smokescreens behind which certain Indian individuals would become extremely wealthy.
Cohen and Bowden represent this description of a perception as the perspective of the author:
The author's portrayal of the process as a federal intervention and the litigant's efforts as "simply smokescreens behind which certain Indian individuals would become extremely wealthy" is a disturbing perception that does little justice to the nature of the controversy.
(2) Referring to the precontact social context in which salmon harvesting occurred, I wrote:
[limiting the salmon harvest] was in their interest; under the system of common property rights specific to a kin or village, overharvest would only damage the same group in future cycles. With a subsistence and barter economy, limited means of food preservation and small population, there was no incentive to overharvest.
Cohen and Bowden turn this into a condemnation of treaty fishing rights, writing: "Knutson implies that the current system contains an `incentive to overharvest'. Several factors mitigate against overharvest by any parties in the case area."
3 These projects pose substantial threats to the existing marine ecology. See, for example, Whitely, Brookbank, and Johnstone 1989. The scale and impact of these projects on the marine commons should not be underestimated. A proposed American sea vegetable project near Guemes Island would cordon off one square mile of navigable water. According to an Environmental Impact Statement cited by Whitely et al., the biological oxygen demand of 100 proposed pens would be 150 percent higher than that of Seattle's primary sewage plant.
4 Read the statement by Trout Unlimited executive Jerry Pavletich (1989).
5 A 1989 legislative bill to the effect was finally stopped by commercial common property fishermen and their communities, despite the support of the governor, the Department of Fisheries, and the signatures of a majority of the state's legislators. The bill would have given priority to sports fisheries and permitted the wastage of salmon. This last feature was necessary to justify eliminating common property fishing, sine wastage of food fish is currently illegal. In a November 1989 Seattle meeting, Washington State Fisheries Director Joseph Blum announced to the Purse Seiner's Association, a common property group, that he foresaw a complete elimination of common property commercial salmon fishing in the state within 10 years.
For a satirical treatment of the sport lobby proposal, see Knutson 1988.
6 The 1989 formation of Salmon For All united historically warring constituencies within the common property fleet: gillnetters, trollers, seiners, some sport fishermen, and processors. This organization, formed initially in response to sport priority legislation, is an example of alliance building. As of this writing, board membership has been offered to treaty-tribe groups.
7 U.S. v. Washington has a good deal more to do with reasons of state than with reasons of conscience. In overriding the Washington State Supreme Court, the federal justices held that the federal government's treaty-making powers supersede legal claims of the Fourteenth Amendment.
8 They refuse to acknowledge a moral aspect to he resistance of common property fishermen, writing: "In an action that fishermen called civil disobedience, but that others saw as an opportunity for `outlaw' fishing ..." (1986:92). In such an opportunity, in 1975 an unarmed common property fisherman was shot in the head by a state fisheries officer, a functionary of the agency which, according to Cohen and Bowden, represented his interest. In similar such opportunities, common property fishing vessels were set afire with tear gas canisters launched by police units.
9 Berry (1977) examines this process in detail, focusing on the creation and eradication of indigenous relationships to land.
10 Indian fishermen were never excluded on racial grounds from capitalizin their fishing operations and participating in the common property fishery as trollers, drift gillnetters, or purse seiners. Lummi, Tlingit, and Haida fishermen, and others of native descent, were among the most skilled common property fishermen prior to the Boldt Decision. Most tribal fishermen did not, however, have access to capital.
AFSC (American Friends Service Committee)
1975 Uncommon Controversy: Fishing Rights of the Muckleshoot, Puyallup and Nisqually Indians. Seattle: University of Washington Press.
1977 The Unsettling of America: Culture and Agriculture. New York: Avon.
1981 The Boldt Decision: Legal Victory, Political Defeat. Paper presented at the 1981 annual meeting of the American Political Science Association, New York City.
Cohen, F.G. (with J. LaFrance and V. Bowden)
1986 Treaties on Trial: The Continuing Controversy over Northwest Indian Fishing Rights. Seattle: University of Washington Press.
1988 Sport Logging? Seattle Post-Intelligencer. 3 March.
1989 The Unintended Consequences of the Boldt Decision. In J. Cordell, ed A Sea of Small Boats. Cultural Survival Report 26. Cambridge, MA: Cultural Survival.
1972 Summary of Anthropological Report in US vs. Washington. Seattle: Northwest Collection, University of Washington.
1989 Sea Tenure and the Culture of the Commoners. In J. Cordell, ed. A Sea of Small Boats. Cultural Survival Report 26. Cambridge, MA: Cultural Survival. Pavletich, J.
1989 They Profit in Loss. The Trout and Salmon Leader (May/June).
US District Court of Western Washington
1974 United States v. Washington. 384 F. Supp. 312.
US Supreme Court
1979 State of Washington v. Washington State Commercial Passenger Fishing Vessel Association and Washington Kelpers Association: State of Washington et al. v. United States et al.; and Puget Sound Gillnetters et al. v. United States District Court of the Western District of Washington. 443 U.S. 658.
1978 The Effect of the Boldt Decision on the Nisqually Indian Fishery. Paper presented at the Colloquium for Puget Sound Area Anthropologists, Tacoma, Washington.
Whitely, A.H., J.W. Brookbank, and A.K. Johnstone
1989 De Yonge was right on fish-farm perils. Seattle Post-Intelligencer. April.
Article copyright Cultural Survival, Inc.