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"To fish for themselves" : a study of accommodation and resistance in the Stó:lō fishery Brown, Kimberly Linkous 2005

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"TO FISH FOR THEMSELVES": A STUDY OF ACCOMMODATION AND RESISTANCE IN T H E ST6:LO F I S H E R Y  by KIMBERLY LINKOUS B R O W N  B.A., W e s t e r n W a s h i n g t o n University, 1993 M.A., W e s t e r n W a s h i n g t o n University, 1996  A T H E S I S S U B M I T T E D IN P A R T I A L F U L F I L L M E N T O F THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY in THE FACULTY OF GRADUATE STUDIES ANTHROPOLOGY T H E UNIVERSITY OF BRITISH COLUMBIA January 2 0 0 5  © K i m b e r l y Linkous Brown, 2 0 0 5  Abstract Fisheries regulations, implemented in the 1880s, b a n n e d the sale of Indian 'food fish' a n d resulted in the creation of the categories of "food fishing" a n d "commercial fishing." W h i l e simultaneously accepting a n d rejecting that place in the margins of this fractured fishery, St6:l6 people have consistently maintained that their Aboriginal right to fish c a n n o t be cast in these false categories that separate the e c o n o m i c a n d social c o m p o n e n t s of their w a y of life. St6:l6 fishers h a v e b e e n fighting for their Aboriginal right to fish since the their first e n c o u n t e r s with the Xwelitem.  This thesis a d d r e s s e s that struggle within a context  of a c c o m m o d a t i o n a n d resistance. In this historically situated e t h n o g r a p h y , I offer an examination of a problem, not a people. By selecting three distinct r e s p o n s e s to fisheries regulation o n the part of peoples identifying t h e m s e l v e s as St6:l6, I reveal a link b e t w e e n the histories of the individual St6:l6 communities a n d their specific r e s p o n s e s to regulation, demonstrating that c o n n e c t e d to those histories are as many different St6:l6 fisheries as there are species of s a l m o n . T h e r e s p o n s e s e x a m i n e d in this thesis are, in the w o r d s of the St6:l6 themselves, rooted in tradition; tradition having b e c o m e the short a n s w e r to questions regarding the St6:l6 a n d their Aboriginal right to fish. A s a part of my examination, I s e e k to u n c o v e r the long answer; more specifically h o w tradition has c o m e to support these separate a n d distinct responses to over a century of interference into their w a y of life.  ii  Table of Contents Abstract  ii  Table of Contents  iii  List of Tables  v  List of Figures  vi  Preface  vii  Acknowledgments  x  Dedication  xi  In Remembrance  xii  Chapter One: To Fish For Themselves - Introduction The Creation of Conflict - Locating the Problem The Research Problem - Theory and Context Discussions of Resistance Discussions of Tradition The Research Problem within the Context of an Existing Literature St6:l6 Fishers Respond The Problem of Research The People of the River: Contemporary Times The People of the River: Antiquity and Ethnography Chapter Two: History, Regulation and Resistance Historical Preview The Growth of British Columbia Canneries and the Industrialization of a Fishery An Era of Regulation Emerges Early Struggles With Regulation Fishing For Themselves Summary and Discussion Chapter Three: The Courts Reshape the Fishery Indian Fishers and the Courts The Creation of a Commercial Fishery and the Potential for Shared Management Industrial Fishers and the Pilot Sale Arrangement  iii  1 5 10 16 22 24 32 36 45 50 60 61 65 67 72 75 85 87 89 100 114  Summary and Discussion  118  Chapter Four: Warriors on the Water Community Overview The Battle Lines Are Drawn A Cease Fire of Sorts Life Along the River - the Practice of a Tradition Managing Their Own Fishery Discussion  121 122 123 134 137 139 143  Chapter Five: Would It Have Been Easier to Go to Court? Community overview The Creation of a Community Justice as Healing Mr. R's Day in 'Court' Alternative Justice and the Aboriginal Right to Fish: A Good Fit? Life Lived as Tradition Discussion  151 153 154 156 159 161 165 171  Chapter Six: Highliners and Moneymakers Highliners in the Canyon Bona fide Commercial Fisherman Discussion  176 183 187 192  Chapter Seven: Fishing For Themselves Conclusion Case Studies What Follows  Still: 203 210 222  Reference  225  Appendix: Map of Traditional St6:l6 Territory  243  iv  List of Tables  Table 1. Chronology of Fishery Regulation for the Province of British Columbia  68  Table 2. Fisheries Regulations Impacting Aboriginal Access to Fisheries Resource  70  Table 3. Chronology of Governmental Regulation with Special Emphasis on the Fraser River  71  Table 4. Aboriginal Fisheries Court Cases  92  Table 5. Catch Data For Fraser River Sockeye  118  Table 6. Cheam Reserve  122  Table 7. Seabird Island Reserve  153  v  List of Figures  Figure 1. Notice to Native Fishers How to Mark Salmon  80  Figure 2. Map of St6:l6 Fishing Sites  90  Figure 3. Industrial Fishers Respond  117  Figure 4. "Get Away From My Net " Confrontation at Cheam Beach  132  Figure 5. Black Market Fish  193  vi  Preface "In earlier times this Fraser River resembled an enormous dish that stored up food for the Indians flock here from every quarter to catch the fish that abounded in its waters" ( M a u d 1982).  "Indians throughout British Columbia have always caught, sold or traded their fish and ...changes in technology and equipment or the development of non-Indian exploitation of the fishing resources could not alter the fundamental fact of Indian sovereignty, Aboriginal rights, and the unity of "food" and "commercial" fishing ( W a r e 1983).  Domination and resistance: "No simple dialectic...both may be brutal, but often neither is very clear. Domination even at it's most violent can still be permeated with ambiguity, uncertainty and peculiar mixtures of fantasy and reality; resistance can occur simultaneously with collusion....having both cultural and political-economic dimensions that sometimes develop in conjunction and sometimes run cross-current to each other" (Sider 1987).  "Tradition names processes of continuing cultural and social construction through which they seek to distance themselves from the dominant society" (Sider 1993). "...tradition does not appear as a corpus of statements handed down unchanged from one generation to the next. It is a succession of answers to questions about the resent, and consequently it takes on the status of an always correct answer to the questions asked. The questions are those the society is asking itself at the present time (Mauze 1997).  Fisheries regulations, implemented in the 1880s, b a n n e d the sale of Indian 'food fish' a n d resulted in the creation of the categories of "food fishing" a n d "commercial fishing" - categories that b e c a m e firmly e n t r e n c h e d in the industrial fishery at the m o u t h of the Fraser River a n d actively contested by the Aboriginal p e o p l e s fishing the u p p e r r e a c h e s of the river. Additional regulations in 1888 c o n t a i n e d more c o m p r e h e n s i v e controls over fishing e q u i p m e n t a n d m e t h o d s as well as specific penalties for violations. Protected  in the regulations w a s a n Aboriginal right to fish for  food. Specific l a n g u a g e contained in the regulations u p h e l d t h e Indian f o o d fishery, declaring that "Indians w e r e to, at all times, have liberty to fish for the p u r p o s e of vii  providing food for themselves, but not for sale, barter or traffic" - casting in stone the concept of a separate fishery for food and a separate fishery for commerce. Cast in stone as well were the ideals of the larger population as to the place of Aboriginal peoples in the fishery. While simultaneously accepting and rejecting their place in the margins of this fractured fishery, St6:l6 people have consistently maintained that their Aboriginal right to fish could not be cast in these false categories that separate the economic and social components of their way of life. While industrial fishing interests have worked to maintain a separate commercial fishery confined to the mouth of the river, St6:l6 people have fought to keep intact the social and economic aspects of their fishery - sharing fish with family and friends as a part of ceremonies; selling and trading fish with the new immigrants to their land. As noted by Jimmy George of the Aitchleitz (St6:l6 member band) First Nation: the DFO stopped us from selling fish. We bartered what we had with other nations for what they had. Now we barter for the dollar to use for something else. My father does not ever remember giving the right to fish away - neither does my grandfather. My grandfather used to trade with people two mountains away for things we didn't have here. (Sqwelqwels ye St6:ld. August 1998, Vol. 1, Issue 6) Such were the historical processes that shaped the lives of the St6:l6 in the post-contact years and figured prominently in the production/reproduction of culture as reflected in the varying responses to fisheries regulation. This thesis examines selected, specific responses to fisheries regulation, focusing not only on the larger colonial/post colonial conflict, but also on the internal conflict inherent in the domination/resistance dialectic. Critical to this examination of the Aboriginal right to fish is the role of the 'processes of continuing cultural and social construction' or viii  tradition as it supports specific acts of resistance.  ix  Acknowledgments First I w o u l d like to thank t h e St6:l6 People w h o w e r e s o g r a c i o u s to m e a n d allowed m e to s p e n d s o many wonderful d a y s in their territory. T h e r e a r e a n u m b e r of people w h o s h a r e d a great deal of their time with m e to w h o m I must give a special t h a n k s : G r a n d Chief Clarence Pennier, Chief D o u g Kelly, C l e m Seymour, Corky Douglas, J u n e Q u i p p a n d all t h e people at C h e a m . A special t h a n k s to G r a n d Chief A r c h i e Charles f o r letting m e visit his dry rack c a m p a n d f o r letting m y h u s b a n d take pictures of his family's c a m p . A special thanks to Lester N e d f o r his gracious hospitality a b o a r d his "lazy white man's boat" as well a s in his home. A special t h a n k s t o Isaac A l e c k f o r all t h e time he spent visiting with m e at t h e b e a c h , s h o w i n g t h e important spots along that section of t h e Fraser River, f o r taking m e out drifting a n d f o r all t h e s a l m o n he g a v e me. A very special thanks to K e n Malloway w h o spent s o m u c h time with m e , talking with m e , teaching me, a n d taking m e o n my first fishing trip. O h y e a h , a n d f o r providing m e with my frightening field story! A n d last, but certainly not at all least, Ernie Crey w h o h a s b e e n a t r e m e n d o u s source of information a n d a friend f o r several years now. I k n o w I couldn't have a c c o m p l i s h e d this without his help a n d friendship. T h a n k s to t h e people at Fisheries a n d O c e a n s C a n a d a , in particular Bert lonson a n d Bridget Enevor w h o took time out of their busy days to help m e a n d talk with me. T h a n k s t o Charles M e n z i e s f o r his patience a n d direction in this project. He taught m e s o m u c h a n d m a d e possible many wonderful opportunities t o apply w h a t I've learned. Charles introduced m e to s o many people w h o h e l p e d s h a p e d the w a y I n o w look at t h e world. M a n y thanks to Bruce Miller f r o m w h o m I've learned a n d g a i n e d s o m u c h . His e n c o u r a g e m e n t kept m e g o i n g . A n d finally, many t h a n k s to D a n Boxberger w h o first introduced m e to t h e w o r k s of Karl Marx a n d w h o h a s s h e p h e r d e d m e t h r o u g h my a c a d e m i c life n o w f o r 12 years. T h a n k s to J a n e a n d Patty for sharing this experience with m e . I learned s o m u c h from y o u both. A n d Caroline, I don't k n o w w h e r e to e v e n begin. I w o u l d h a v e never m a d e it this far without that smiling face a n d w o r d s of e n c o u r a g e m e n t . I'm looking f o r w a r d to many more road trips. W h a t ' s next - N e w M e x i c o ? W a i t a minute. O n e of us h a s to stay h o m e to w a t c h Gilmore Girls. T h a n k s to m y family w h o have put up with my grouchiness, especially these last f e w months. A n d finally, thanks to my wonderful h u s b a n d w h o s e love a n d support h e l p e d m a k e this d r e a m a reality. Borrowing a line f r o m my favorite Marxist, I s u m up my a p p r o a c h t o life a n d this w o n d e r f u l , frightening experience. One Two One, Two, Three...JUMP * *Steve Earle, "Steve's Last Ramble" off of Transcendental Blues,  2000,  X  published by Sarangel Music  FOR STEVE WITH ALL M Y LOVE  xi  In Remembrance  During t h e c o u r s e of my fieldwork, two of t h e individuals with w h o m I spent a great of time - individuals contributing significantly to the completion of this d o c u m e n t - lost loved ones. Out of respect for these individuals a n d all that they contributed to this thesis, I w o u l d like to r e m e m b e r their loved o n e s here.  Ernie Crey's sister In memory of D a w n T h e r e s a Crey  Ken Malloway's s o n In memory of Kelly Malloway  xii  Chapter One: To Fish For Themselves - Introduction "It's simple - one line on the page,"says one St6:ld fisher. "Tell them we're going fishing." A response comes from across the room. "Let's go back to our traditional way of fishing - Thursday through  Sunday"  1  July 15, 2 0 0 2 - I sit quietly against the wall at the far e n d of the room a s b a n d fisheries representatives a n d chiefs meet to consider the sales a g r e e m e n t o n the table before t h e m ; a n a g r e e m e n t outlining the federal g o v e r n m e n t ' s parameters for the u p c o m i n g s a l m o n fishery. T w e n t y - o n e b a n d s must sign the a g r e e m e n t before the legal sale of in-river c a u g h t s a l m o n may p r o c e e d . Only eleven b a n d s a g r e e to sign, forcing the sale of Indian c a u g h t sockeye to the margins outside of the law. T h e a b s e n c e of a sale a g r e e m e n t shifts the discussion to "developing a fishing plan of our o w n . " W i t h i n minutes a plan is committed to paper a n d circulated to t h o s e present for signature. Fifteen b a n d s sign onto the plan. Fishing times for m e m b e r b a n d s of the St6:l6 fishery are set: 72 hours e a c h w e e k for the month of July a n d A u g u s t 2 0 0 2 starting the w e e k of July 14, 2 0 0 2 , f r o m T h u r s d a y 1800 hours to S u n d a y 1800 h o u r s .  2  Fisheries a n d  O c e a n s is notified of the St6:l6 fishing plan; their r e s p o n s e - no T h u r s d a y o p e n i n g for the w e e k b e g i n n i n g July 14, 2 0 0 2 . It wasn't as simple as o n e line on a page. A s T h u r s d a y , the first o p e n i n g day outlined in the p r o p o s e d plan, a p p r o a c h e d ,  ' F r o m 1951 t h r o u g h 1 9 6 1 , o p e n periods in the Indian F o o d Fishery w e r e limited to four days per w e e k , year r o u n d - 1 8 0 0 hours W e d n e s d a y to 1800 hours S u n d a y . Beginning in 1962, the n u m b e r of allowable fishing d a y s w a s r e d u c e d f r o m f o u r d a y s per w e e k to three. Over the d e c a d e s further reductions in allowable fishing d a y s w o u l d be w i t n e s s e d . T h e fisher in question w a s referring to the time w h e n the river w a s more accessible to the Indian F o o d Fishery. T h e s e times pertain to the set net fishery only - the primary St6:l6 fishery. T h e drift net fishery w a s limited to Saturday a n d S u n d a y only. T h e dry rack fishery times w e r e also set for T h u r s d a y through Sunday. 2  1  d e b a t e s a n d objections to the o p e n i n g continued. Of c o n c e r n w a s the effect of the 7 2 hour o p e n i n g o n the early Stuart run; a run that has b e e n at the center of the Department of Fisheries a n d O c e a n ' s ( D F O ) conservation c o n c e r n for m a n y years a n d a run that has consistently b e e n f i s h e d by Aboriginal peoples all a l o n g the Fraser from the lower valley to past Prince G e o r g e in the central interior.  3  Citing an "inherent  Aboriginal right to g o fishing," fifteen St6:l6 b a n d s p r e p a r e d to g o fishing with or without D F O a p p r o v a l . Expressing doubt as to the validity of D F O ' s d a t a regarding the position of the early Stuarts in the river, Bob Hall, Fisheries Portfolio holder for St6:l6 Nation, r e m a r k e d at the meeting, " T h e chiefs a n d f i s h e r m e n m a d e the decision [to g o fishing] b a s e d o n our o w n conservation knowledge. T h e early Stuarts h a v e already p a s s e d t h r o u g h our territory." D F O w o u l d agree to the 72 hour o p e n i n g . T h e events of that d a y in July 2 0 0 2 , clearly depict the specific relationship existing b e t w e e n Aboriginal peoples a n d the larger C a n a d i a n society as it relates to the s a l m o n fishery. T h e St6:l6 have b e e n fighting for their Aboriginal rights since the first e n c o u n t e r s with the  Xwelitem.  4  Central to the fight has b e e n the struggle to regain  T h e D F O has had a n u m b e r of incarnations in its illustrious past. 1 8 6 7 - 1 8 8 4 Marine a n d Fisheries - Fisheries Branch; 1 8 8 4 - 1 8 9 2 Department of Fisheries; 1 8 9 2 1914 Marine a n d Fisheries - Fisheries Branch; 1 9 1 4 - 1 9 2 0 Naval Services - Fisheries Branch; 1 9 2 0 - 1 9 3 0 M a r i n e a n d Fisheries- Fisheries Branch; 1 9 3 0 - 1 9 6 9 Department of Fisheries; 1969-1971 Department of Fisheries a n d Forestry; 1 9 7 1 - 1 9 7 6 Department of Environment-Fisheries a n d Marine Service; 1976-1979 Department of Fisheries a n d the Environment Fisheries a n d Marine Service; from 1979 until very recently Department of Fisheries a n d O c e a n s ( D F O ) ; at present it is Fisheries a n d O c e a n s C a n a d a ( D F O Factbook, 1993, Department of Fisheries a n d O c e a n s , Ottawa, Ontario). In this thesis the following designations for Fisheries a n d O c e a n s C a n a d a are u s e d : D F O , Fisheries, Fisheries a n d O c e a n s . T h e designation of D F O is the o n e u s e d most often. 3  *Xwelitem translates  as "hungry people" a n d is the H a l q ; e m e y l e m w o r d u s e d to refer to people of E u r o p e a n ancestry. 2  s o m e m e a s u r e of control over the natural resources of their territory, resources that w e r e essential to the d e v e l o p m e n t of the industrial e c o n o m i e s that n o w d o m i n a t e St6:l6 territory. O n e primary battleground for this fight has b e e n the Fraser River, or more particularly the Fraser River salmon fishery. W h i l e a great m a n y factors h a v e f i g u r e d into the St6:l6's conceptualization of their fishery, it has b e e n fisheries regulations e n a c t e d in the 1 9 century - regulations that created the artificial categories th  of 'food' a n d 'commercial' fisheries - that has r e s h a p e d the St6:l6's relationship to the Fraser a n d its s a l m o n . Collected oral histories refer to stories told by elders of a time w h e n "the St6:l6 w e n t to the river to fish w h e n e v e r they n e e d e d , any time of day, any d a y of the week." However, in the years s u b s e q u e n t to intense regulation, federal m a n d a t e s h a v e d e t e r m i n e d how, w h e n a n d w h e r e Aboriginal p e o p l e s could fish; o u t l a w e d the sale of salmon a n d turned the e v e r y d a y practice of fishing into a criminal act. T h i s thesis a d d r e s s e s the St6:l6's fight for their Aboriginal right to fish within a context of a c c o m m o d a t i o n a n d resistance. In this historically situated examination, I f o c u s my study o n w h a t I have identified a s three separate a n d distinct r e s p o n s e s to g o v e r n m e n t interference into a w a y of life on the part of a peoples identifying t h e m s e l v e s as St6:l6 - Coast Salish peoples with a c o m m o n heritage, c o m m o n mythology a n d ritual - a people a m o n g w h o m social a n d e c o n o m i c ties are established across c o m m u n i t y b o u n d a r i e s through marriage. T h e actions I h a v e identified as r e s p o n s e s to regulation range from overt acts of rebellion to simple acts of f e e d i n g o n e ' s family. W h e t h e r c o n s i d e r e d typical or atypical this range of actions represents directed individual and/or collective actions d e s i g n e d to effect a f u n d a m e n t a l c h a n g e in  3  the relationship b e t w e e n the federal a n d provincial g o v e r n m e n t s a n d the St6:l6 people a n d c a n be c o n s i d e r e d consistent with the history of the St6:l6's r e s p o n s e s to the a d v a n c i n g loss of their fishing rights. T h e actions that I have identified as specific r e s p o n s e s to regulation include: the participation in direct acts of often militant protest o n the part of the C h e a m Band; the initiation of a justice diversion p r o g r a m the Seabird Island B a n d ; a n d the participation in legal sales fisheries c o n d u c t e d u n d e r the auspices of negotiated a g r e e m e n t s or g o v e r n m e n t licensing requirements. Additionally, I s e e k to u n d e r s t a n d h o w tradition, as it w a s d e s c r i b e d to m e by the individuals with w h o m I spoke, s u p p o r t s the specific acts of resistance identified in this study. A n d equally as important, I s e e k to u n d e r s t a n d h o w that tradition has b e e n s h a p e d a n d r e s h a p e d by over o n e h u n d r e d y e a r s of regulation that h a d , as its mandate, the removal of A b o r i g i n a l fishers f r o m the upper reaches of the Fraser River. In order to a d d r e s s these issues a n d others, I offer a n examination of a problem, not a people; a f o c u s that is not so m u c h on a particular place or g r o u p of people, but rather o n forms of resistance in r e s p o n s e to g o v e r n m e n t regulation. T h i s a p p r o a c h , as d e s c r i b e d by D o m b r o w s k i , seeks to demonstrate the relationship b e t w e e n peoples a n d their c u s t o m s within a n historical context, by f o c u s i n g on the d y n a m a c i s m of c e r e m o n i e s , customs, relations a n d patterns of ideas a n d e x a m i n i n g h o w that "stuff of culture" c o m e s to be c a u g h t up with, a n d b e c o m e s part of, the political a n d social c h a n g e s people face (2001:4). Dombrowski, following in the footsteps of s u c h historical anthropologists as Eric W o l f a n d J o a n Vincent notes that: T h i s a p p r o a c h m o v e s a w a y from the classical e t h n o g r a p h i c stance that p r e s u m e d collective identity rather than q u e s t i o n e d it....This a p p r o a c h involves placing the e m e r g e n c e of particular peoples a n d c u s t o m a r y practices in a n e x t e n d e d historical context. (2001:4)  4  A s did D o m b r o w s k i in his examination of the recent e m e r g e n c e of 'radical' Christian c h u r c h e s in Native villages in Southeast A l a s k a , by w o r k i n g b a c k w a r d f r o m the present situation to the context from w h i c h it e m e r g e d as well as f r o m the context against w h i c h it e m e r g e d , I highlight the internal struggles supporting t h e s e very distinct r e s p o n s e s to fisheries regulation.  The Creation of Conflict - Locating the Problem E t h n o g r a p h i c a n d archaeological data support the importance of s a l m o n in the Coast Salish diet a s well as its importance in Aboriginal e c o n o m i e s . Additionally, the importance of s a l m o n socially a n d ceremonially is revealed in the myths a n d legends of the Coast Salish people. Historical accounts refer to a time w h e n St6:l6 fishers actively 'sold' their catch, first to operators of the Hudson's Bay C o m p a n y saltry, a n d later, to commercial c a n n e r s . But the e m e r g e n c e of the industrial fishery in British C o l u m b i a in 1871 a n d the s u b s e q u e n t regulations that followed to ensure the steady growth of the industry w o r k e d to alienate the St6:l6 from the resource on w h i c h they h a v e long relied. Fisheries regulations implemented in British C o l u m b i a in the 1880s restricted Aboriginal fishing, r e s h a p e d Aboriginal fishing practices a n d significantly altered St6:l6 e c o n o m i c activity.  5  A n 1839 c e n s u s c o n d u c t e d by traders of the H u d s o n ' s Bay C o m p a n y post at Fort Langley reflected a total population of 2 0 7 4 for all of the m a i n l a n d Halq;emeylem  T h e importance of fishing a n d fish in the diet of the Aboriginal p e o p l e s of British C o l u m b i a w a s so a p p a r e n t that J a m e s Douglas a g r e e d f r o m the onset that fishing rights be included in the treaties a n d other a g r e e m e n t s with Native g r o u p s . W h i l e n o treaties w e r e negotiated with the St6:l6, the importance of the fishery w a s c o n s i d e r e d w h e n reserve allotments ere m a d e by the Reserve C o m m i s s i o n . 5  5  tribes of w h i c h 1285 w e r e listed as upper St6:l6 a n d 7 8 9 as lower Fraser River tribes (Duff 1952:28-29, 129-130). By 1879 a s e v e n percent population decline w o u l d be o b s e r v e d for the u p p e r St6:l6 tribes, this decline likely the result of the 1862 small pox e p i d e m i c ( G i b s o n 1982/83). Between 1879 a n d 1915 another nine percent decline w o u l d be o b s e r v e d , coinciding with the Spanish flu e p i d e m i c of 1913. T h i s decline in the St6:l6 population w o u l d have h a d s o m e affect on existing e c o n o m i c a n d family relations in regards to the fishery. A n d no doubt, these population declines w o u l d have m a d e the g o v e r n m e n t ' s attempts to regulate the fishery s o m e w h a t easier, in that the s e c o n d decline in 1879 c a m e just as the industrial fishery w a s e x p a n d i n g . It w a s in 1879 that a general Fishery Regulation for C a n a d a w a s a d o p t e d w h i c h prohibited s a l m o n fishing without a Department of Marine Fisheries lease or license. By 1888 n e w regulations w e r e implemented that w o u l d contain more c o m p r e h e n s i v e controls over s a l m o n fishing. St6:l6 fishers f o u n d t h e m s e l v e s at the mercy of the g o v e r n m e n t a n d eventually having to violate fisheries regulations in order to procure h o u s e h o l d staples w h e n they traded s a l m o n for e g g s a n d other f o o d stuffs. A s will be d i s c u s s e d in more detail in the next chapter, St6:l6 fishers w e r e the b a c k b o n e of a c u r e d fish industry at Fort Langley beginning in 1829 a n d continuing until industrial c a n n i n g w a s established on the Fraser. Initially Native fishers figured prominently in that newly e m e r g i n g c a n n e r y fishery, but by the turn of the century they f o u n d t h e m s e l v e s r e p l a c e d by J a p a n e s e fishers. A g a i n , St6:l6 fishers f o u n d t h e m s e l v e s at the mercy of the g o v e r n m e n t a n d again in violation of fisheries regulations a s they bartered, t r a d e d a n d sold their catch to make e n d s meet. A s Native peoples w e r e increasingly being alienated f r o m their land a n d  6  resources, n u m e r o u s other stepts w e r e taken to alienate t h e m f r o m their culture as well. Provisions a d d e d to the Indian Act in 1927 o u t l a w e d Native winter c e r e m o n i e s a n d potlatches in a n attempt to further strip Native peoples of their culture, forcing t h e m to rely o n available w a g e labor j o b s rather than their c u s t o m a r y f o r m s of provisioning themselves. A n o t h e r key c o m p o n e n t in the h e g e m o n i c process that f o l l o w e d in the w a k e of increased white settlement w a s the residential school system w h e r e b y Aboriginal children w e r e r e m o v e d from their h o m e s during the school y e a r a n d placed in white run b o a r d i n g schools. Residential schools w e r e a core instrument in the g o v e r n m e n t ' s attempt to assimilate Aboriginal peoples a n d children p l a c e d in t h e residential schools w e r e s e p a r a t e d from cultural practices a n d f o o d s . St6:l6 children w e r e sent to the C o q u a l e e t z a residential school in Chilliwack before it closed in 1 9 3 9 a n d to St. Mary's Mission school in Mission, British C o l u m b i a . K e n Malloway, in a n interview with reports from the Chilliwack Progress r e m a r k e d : It w a s a w a y f o r the g o v e r n m e n t through the c h u r c h , to steal o u r land a n d m a k e us over in their image....little b r o w n version of themselves. ( W e d n e s d a y , M a y 1 , 1991) St6:l6 in their late forties a n d early fifties with w h o m I spoke, talked of not being able to eat s a l m o n while attending residential schools, salmon being a b s e n t f r o m the school's meals. T h e y talked of missing the f o o d o n w h i c h they w e r e raised; the f o o d that w a s so essential to w h o they are. All of t h e s e factors s h a p e d the w a y the St6:l6 v i e w e d their position in the fishery. W h i l e they never b a c k e d a w a y from their assertion of a right to fish, they w e r e forced to a c k n o w l e d g e their position in the margins of the larger non-Native e c o n o m y . A t the s a m e time, however, Stoilo fishers w e r e aware of a v e n u e s of redress a n d exercised  7  t h o s e options available. St6:l6 leaders protested, testified in front of Royal C o m m i s s i o n s , petitioned t h e g o v e r n m e n t a n d relied o n t h e p o w e r of t h e press to get out their c o n c e r n s regarding t h e fishery. For example in 1 9 1 4 St6:l6 chiefs placed a letter in t h e local Chilliwack n e w s p a p e r indicating that regardless of attempts to halt Indian fishing: W e w i s h it thoroughly understood that w e d o not intend to stop fishing a n d that t h e Fishery Department h a s no right to attempt to stop u s f r o m d o i n g so for o u r o w n use, a s w e are t h e Aboriginal o w n e r s of t h e land a n d t h e w a t e r , w h i c h p r o v i d e d f o o d for us as in t h e past a n d present, a n d for all time to c o m e . (Chilliwack Progress, A u g u s t 6, 1914) In addition to their s u b m i s s i o n in t h e Progress, t h e chiefs also sent a letter protest to O t t a w a a n d hired a lawyer to press for d a m a g e s (Carlson, e d . 2 0 0 1 : 1 8 1 ) . Aboriginal efforts to pursue claims for land a n d resources w e r e halted w h e n in 1927, t h e federal g o v e r n m e n t inserted a provision in t h e Indian A c t preventing Aboriginal p e o p l e from obtaining legal assistance. This provision w a s eventually d r o p p e d from t h e Indian A c t a n d Aboriginal fishing cases m a d e their w a y t h r o u g h t h e courts resulting in significant c h a n g e s in federal policy but not necessarily in t h e attitudes of fisheries authorities or the industrial fishing community. A l o n g with t h e d e c a d e s , conflict p r o g r e s s e d . Incidents of t h e resulting conflict a n d near battle conditions will be d i s c u s s e d in s u b s e q u e n t chapters. Equally important is t h e role of fisheries regulation in t h e creation of a n industrial fishery narrative that, while borrowing heavily o n t h e Aboriginal narrative of fishing a s a w a y of life, d e n i e s t h e legitimacy of a n inherent Aboriginal right to fish. In t h e 1990s federal policy regarding t h e Aboriginal fishery b e g a n to c h a n g e . Prior to t h e Sparrow ruling in 1990, fisheries authorities w e r e u n d e r no obligation to justify closures of t h e  8  Indian F o o d Fishery (IFF) that w a s created in 1888. A s t h e d e c a d e s p r o g r e s s e d from the 1950s t h r o u g h t h e 1990s, Aboriginal fishers w i t n e s s e d significant d e c r e a s e s in t h e n u m b e r of d a y s they w e r e allowed to fish. Sparrow significantly c h a n g e d federal policy in r e g a r d t o w h e n a n d w h y t h e IFF could b e curtailed: establishing t h e criteria for river closures a n d establishing t h e Aboriginal fishery a s having priority over all other fisheries, a n d s e c o n d only to conservation. In t h e years s u b s e q u e n t to Sparrow, industrial fishers realized many of t h e effects previously e x p e r i e n c e d b y Aboriginal fishers in t h e past a n d industrial fishers b e g a n t o utilize m a n y of t h e s a m e tactics used by Aboriginal fishers in their fight for a right to fish. Industrial fishers p l a c e d full p a g e a d s in n e w s p a p e r s pleading their case with pie charts a s visual e x a m p l e s of their s o called "marginalization" in t h e fishery. By w a y of t h e s e a d s they s o u g h t to demonstrate that with t h e implementation of n e w Aboriginal Fisheries Strategy, a n d specifically the Pilot Sale p r o g r a m that w a s a part of that plan, industrial fishing opportunities w e r e lost. A 1 9 9 5 insert in a V a n c o u v e r N e w s p a p e r reported that S t 6 : l 6 / M u s q u e a m fishers w e r e allowed thirty s e v e n d a y s of fishing f r o m t h e period of J u n e 17 t o S e p t e m b e r 12. During t h e J u n e 17 through S e p t e m b e r 12 fishery, industrial fishers c a u g h t 8 8 9 , 0 0 0 s a l m o n in c o m p a r i s o n to t h e Native only pilot sale a n d f o o d fishery catch of 6 1 3 , 0 0 0 out of a total r u n of five million (this figure includes totals for t h e M u s q u e a m pilot sales fishery in addition to t h e St6:l6 fishery. A s noted in a later chapter, t h e total St6:l6 c a t c h for 1995 w a s 326,700). It w a s the contention of t h e industrial fishers that the Aboriginal only fisheries p u s h e d t h e m off the river a n d w o r k e d t o destroy a w a y of life p a s s e d d o w n t h r o u g h t h e generations. A table of catch data in c h a p t e r 3 illustrates the St6:l6 total catch of s o c k e y e salmon for t h e years a sales a g r e e m e n t w a s in place,  9  contrasted with the total allotment dictated by the agreements. For the most part, St6:l6 c a t c h e s did not a p p r o a c h the total allocation, m u c h less e x c e e d it. Industrial fishers also e n g a g e d in protest fisheries a n d their claims of a g o v e r n m e n t s p o n s o r e d r a c e - b a s e d fishery w e r e eventually u p h e l d by a C a n a d i a n court, only to be reversed a year later.  6  Industrial fishers c l a i m e d their w a y of life w a s  e r o d i n g at the e x p e n s e of protecting an Aboriginal right to fish, a familiar narrative as A b o r i g i n a l fishers have long claimed that their w a y of life a s peoples of the river w a s being e r o d e d to support the creation of an industrial fishery. T h e u n a v o i d a b l e conflict resulting f r o m the collision of these two narratives has b e e n p l a y e d out o n the river a n d in the court rooms. For the most part the w e a p o n s for e a c h side h a v e b e e n the same: a r m e d confrontation met with a r m e d confrontation; court c a s e met with court case; press release met with press release; h e g e m o n y met with c o u n t e r - h e g e m o n y . T h e tool box for e a c h side has b e e n the same.  The Research Problem - Theory and Context A n t h r o p o l o g i s t s have e x a m i n e d individual a n d g r o u p actions a s they relate to social c h a n g e a n d the interconnections a m o n g Aboriginal populations, the state, natural resources, social/political organization a n d adaptive strategies f r o m a n u m b e r of theoretical perspectives including (1) d e p e n d e n c y theory models a n d (2) a p p r o a c h e s relying o n processual analysis a n d action theory. D e p e n d e n c y theory a p p r o a c h e s h a v e b e e n u s e d to explain the relationship b e t w e e n the state a n d A b o r i g i n a l peoples t h e s e m o d e l s illustrating the correlation b e t w e e n federal policies a n d the under-  6  T h e Kapp decision, w h i c h is d i s c u s s e d in s u b s e q u e n t sections of this thesis.  10  d e v e l o p m e n t of Aboriginal e c o n o m i e s . Examples of the application of d e p e n d e n c y t h e o r y in regards to the conditions of Aboriginal peoples include J o s e p h J o r g e n s e n ' s examination of the relationship b e t w e e n Native A m e r i c a n e c o n o m i e s a n d the U.S. federal g o v e r n m e n t , primarily in regards to natural resource extraction (1978, 1986, 1990); J a m e s M c D o n a l d ' s (1985, 1994) examination of u n d e r d e v e l o p m e n t a s it exists in the political e c o n o m y of the T s i m s h i a n of Kitsumkalum; a n d Daniel Boxberger's ( 1 9 8 6 , 1 9 8 8 , 1 9 8 9 ) examination of Lummi u n d e r d e v e l o p m e n t a n d the s a l m o n fishing e c o n o m y of W a s h i n g t o n State. In the case of M c D o n a l d ' s a n d Boxberger's e x a m i n a t i o n of Aboriginal fishing, the focus is o n the external factors that contributed to the u n d e r d e v e l o p m e n t of Aboriginal e c o n o m i e s ; u n d e r d e v e l o p m e n t that resulted directly f r o m d o m i n a t i o n by the larger Euroamerican society. Boxberger's examination of the Lummi fishery reveals that the Lummi, as with the St6:l6, p r o v i d e d the labor n e c e s s a r y in the formative years of the c a n n i n g industry as Native people h a d the requisite skills as fishers a n d processors. In the c a s e of the L u m m i , the earliest industrial operations o b t a i n e d the majority of their fish f r o m Indian fishers (Boxberger 1988:169). A s is d i s c u s s e d in a later chapter, historian Dianne Newell e x p o u n d s o n a similar notation regarding Aboriginal fishing labor in British C o l u m b i a ; Boxberger a n d Newell both noting that Indian fishers w e r e eventually f o r c e d out of the industry (1988, 1993). Additionally, processual analysis a n d action theory h a v e b e e n u s e d to examine social c h a n g e a n d the role of individual actors within political a r e n a s as well as to e x a m i n e motives b e h i n d alliances, group formation a n d a d a p t i v e strategies. In his d i s c u s s i o n of the effects of g o v e r n m e n t policy on the Q u e c h a n Indians of Colorado,  11  Robert Bee (1981) describes the individual/group relationship a n d the persistent role of kinship clusters a s units of e c o n o m i c adaptation a n d political action as they relate to the strategies a d o p t e d by the Q u e c h a n Indians during critical periods of transition. C o n s i d e r i n g g r o u p formation as it relates to adaptive strategies a n d social organization a m o n g the Coast Salish, Bruce Miller a n d J e n Pylypa d e s c r i b e Coast Salish g r o u p i n g s as t h o s e of large, e x t e n d e d family h o u s e h o l d s (corporate units) w h e r e b y family m e m b e r s h i p is flexible; noting that "although there is pressure to b e l o n g to only o n e family network at any given time, m e m b e r s may relinquish ties to a network in w h i c h leadership is w e a k a n d affiliate themselves with a n o t h e r family in w h i c h their life c h a n c e s will be improved" (1995:18). Michael K e w a n d Bruce Miller (1999), writing a b o u t the St6:l6, t o u c h on this notion of alignment a n d re-alignment in their discussion of locating Aboriginal g o v e r n m e n t s in the political landscapes; the n e e d for flexibility in any g o v e r n m e n t organization. T h e s e a p p r o a c h e s provide s o m e t h i n g of a f r a m e w o r k w h e r e b y to u n d e r s t a n d individual action in relation to existing alliances a n d future alliances given the family/kin driven social organization of the Coast Salish as well as a context in w h i c h to consider the u n e q u a l relationship between the St6:l6 e c o n o m y a n d the larger C a n a d i a n e c o n o m y . In short, they provide a theoretical 'backdrop' that contributes to my examination of the effects of a century of fisheries regulation a n d recent s u p r e m e court decisions regarding the present day St6:l6 fishery. However, action theory a p p r o a c h e s s p e a k more to q u e s t i o n s of h o w d e p r i v e d people a d a p t e d and/or b e c a m e socially integrated within the colonizing society a n d d e p e n d e n c y theory has t e n d e d to e m p h a s i z e the o v e r w h e l m i n g experience of external factors o n s h a p i n g a n d limiting  12  h o w subaltern people m a k e their o w n history. In order to fully explicate St6:l6 fishers' r e s p o n s e s to regulation, I s e e k to push past t h e b o u n d s of t h e s e a p p r o a c h e s a n d m o d e l s that f o c u s o n adaptation a n d integration, relying instead o n a n a p p r o a c h that provides for a discussion of a g e n c y a s it relates to t h e histories of s u b o r d i n a t e d populations within t h e context of t h e larger dominant history. T h e r e f o r e I rely o n a n a p p r o a c h rooted in t h e notion of historical realism a s d e v e l o p e d by G a v i n Smith a s well as supporting discussions of h e g e m o n y a n d resistance a s offered by W i l l i a m R o s e b e r r y a n d G e r a l d Sider. G a v i n Smith's concept of historical realism reflects t h e n e e d to u n d e r s t a n d society entirely in historical terms, a n d partly reflects t h e n e e d to e m p h a s i z e t h e realness of history over its constructedness (1999:15). For G a v i n Smith, it is necessary to e x a m i n e t h e historical processes a s well a s t h e real w o r l d forces, conditions a n d c o n n e c t i o n s contributing t o t h e reproduction of culture. G i v e n this e m p h a s i s o n t h e realness of history, G a v i n Smith poses questions that e x a m i n e t h e potential of h u m a n action to effect c h a n g e , or more specifically, to contribute t o t h e production of history. A s G a v i n Smith ( 1 9 8 9 , 1 9 9 1 , 1 9 9 9 ) notes in his discussion of peasant resistance a n d rebellion in Peru, h u m a n action cannot be v i e w e d outside t h e creation of culture. A c c o r d i n g to Smith, these acts must be viewed a s m e c h a n i s m s of cultural reproduction or more specifically t h e protection of a livelihood w h i c h is interconnected with a social identity that must be v i e w e d in connection with t h e specific history/prehistory a n d e c o n o m y a s well a s within t h e context of a global history a n d e c o n o m y (1989). W i n n i e L e m (1999), in her discussion of small vine-cultivating farmers in t h e L a n g u e d o c region of France, reveals m u c h t h e s a m e thing a s s h e d e s c r i b e s h o w t h e  13  collective actions of t h e s e small farmers can be s e e n as m e c h a n i s m s of cultural reproduction. Both Smith a n d L e m stress the importance of recognizing the heterogeneity of societies as they relate to cultural reproduction. In his discussion of heterogeneity, Smith discusses h o w a relatively successful rebellion by a peasant c o m m u n i t y in the face of a large ranch pressing t o w a r d capitalist rationalization gives the a p p e a r a n c e of a h o m o g e n e o u s group deriving their solidarity f r o m their s h a r e d c u s t o m s a n d traditions; in e s s e n c e d e v o i d of internal struggles a n d differences ( 1 9 9 1 : 2 0 1 ) . This notion, I believe, has special implications w h e n applied to the e x a m i n a t i o n of the St6:l6 fishery. In the face of treaty negotiations the a p p e a r a n c e of a united front by a h o m o g e n e o u s peoples disguises the differences arising f r o m separate n e e d s within the fishery as well as the external a n d internal struggles e n g a g i n g the St6:l6 people. But w h a t forms the main stage o n w h i c h t h e s e d r a m a s of a g e n c y are played out - d r a m a s that constitute the production of history a n d reproduction of culture? M u c h has b e e n written regarding the colonial d o m i n a n c e of Aboriginal peoples in British C o l u m b i a a n d the processes of h e g e m o n y e n g e n d e r e d within that u n e v e n relationship (e.g. A s c h 1993, 1997; Carstens 1 9 9 1 ; Cole a n d Chaikin 1990; C u l h a n e 1998, 1987; Duff 1965; Fisher 1992; Fournier a n d Crey 1997; K e w 1990; M e n z i e s 1994, 1996, 1999, W a r e 1983). Roseberry problematizes h e g e m o n y a n d p u r p o s e s it be u s e d more a s a concept not to u n d e r s t a n d consent, but to u n d e r s t a n d struggle - the w a y s in w h i c h subordinate populations understand, confront, a c c o m m o d a t e t h e m s e l v e s to, or resist their d o m i n a t i o n are s h a p e d by the process of d o m i n a t i o n itself (1996). R o s e b e r r y asks that w e explore h e g e m o n y not as a finished monolithic ideological  14  f o r m a t i o n but as a problematic, contested political process of d o m i n a t i o n a n d struggle (1996:77). A p p l y i n g Roseberry's axiom, I strive to u n d e r s t a n d the varying r e s p o n s e s of the St6:l6 in regard to the salmon fishery given their "objective formation in the e c o n o m i c sphere, their social a n d cultural relations with other g r o u p s a n d the associations or organizations of kinship..."(1996:79). Roseberry's particular notion of h e g e m o n y w o r k s to illustrate that "what h e g e m o n y constructs, t h e n , is not a s h a r e d ideology but a c o m m o n material a n d meaningful f r a m e w o r k for living t h r o u g h , talking about, a n d acting u p o n social orders characterized by domination" ( R o s e b e r r y 1996:80). It is this c o m m o n material a n d meaningful f r a m e w o r k that f o r m s the stage for the various r e s p o n s e s as played out t h r o u g h the particular configurations of p o w e r existing in, a n d a r o u n d the salmon fishery, as well as t h o s e configurations of power outside the s a l m o n fishery. S a l m o n fishing is not only the basis of e c o n o m i c w e l l - b e i n g for the St6:l6; it is also the basis of spiritual a n d cultural well-being. A century of federal regulation has not n e g a t e d the economic, spiritual a n d cultural importance of s a l m o n fishing for the St6:l6, but it has r e s h a p e d perceptions of the future of that relationship. W h i l e the early years of federal regulation greatly altered a n d r e s h a p e d the St6:l6 fishery, it has b e e n the implementation of a n e w Aboriginal Fisheries Strategy a n d directives imposed in the n a m e of conservation that h a v e contributed most recently to protest fisheries and h a v e placed the r e s p o n s e s of o n e group in opposition to the d e m a n d s of a n o t h e r g r o u p . Indian fishers h a v e f o u n d t h e m s e l v e s not only 'doing battle' with fisheries officers but with e a c h other, or as Sider puts it, "trying not to just u n d e r s t a n d , but to take control of a n d r e s h a p e the multiple connections b e t w e e n past, present, a n d  15  i m p e n d i n g future" ( 1 9 9 3 : x v i i i ) . In his examination of L u m b e e Indian identity a n d the p r o c e s s e s contributing to the creation of that identity, Sider d e s c r i b e s history a s fraught with breaks, disjunctions, punctuated by dramatic incidents a n d e p i s o d e s , or in Sider's w o r d s "far f r o m s e a m l e s s or running u n b r o k e n f r o m past to present" (1993:10). It is a l o n g t h e s e fissures that identity is created, history is p r o d u c e d a n d h u m a n a g e n c y r e v e a l e d . It is this relationship b e t w e e n the production history a n d h u m a n a g e n c y that is central to my examination of the actions a n d reactions of the St6:l6 fishers a n d h o w t h o s e actions a n d reactions reflect different r e s p o n s e s to g o v e r n m e n t authority. A s early a s 1883 the St6:l6 protested federal interference into their fishery w h e n during the 1883 fishing s e a s o n the local fish g u a r d i a n seized a large n u m b e r of nets in the Fraser River a n d Indians from Y a l e to S q u a m i s h protested loudly a n d angrily against the seizures ( W a r e 1983:17). T h r o u g h o u t the late 1 9  th  century a n d early 2 0  t h  century protests c o n t i n u e d as g o v e r n m e n t regulation h e i g h t e n e d . N e w s p a p e r accounts from the 1960s, 1970s, 1980s, a n d 1990s relate acts of d e f i a n c e on the part of the St6:l6 in direct r e s p o n s e to fisheries policies. T h e s e n e w s p a p e r a c c o u n t s reveal actions a n d reactions that constitute overt acts of resistance to g o v e r n m e n t inference o n the part of the St6:l6 ; attempts to affect c h a n g e in g o v e r n m e n t a l policies. W h a t remains h i d d e n are the less overt actions a n d reactions e m p l o y e d t o w a r d that s a m e e n d . I s e e k to reveal those actions. Discussions of Resistance In his study of the Kwaio of the S o l o m o n Islands as regards their struggle for cultural autonomy, Roger Keesing (1992) takes up the discussion of resistance. K e e s i n g notes that t h r o u g h the w o r k s of such scholars as J a m e s Scott a n d J e a n  16  Comaroff ( a m o n g others) w e are s h o w n that for the relatively powerless, resistance m a y a p p e a r in places a n d in forms that are far from dramatic, overt confrontations that s t a n d out in historical records a n d news a c c o u n t s (1992:4-5). C o n t i n u i n g with that discussion, Keesing explains that resistance may be e x p r e s s e d more or less covertly in h u n d r e d s of e v e r y d a y acts a n d may also be e x p r e s s e d indirectly, deflected in "symbolic" a n d religious forms, w h e n overt political action is impossible (1992:5). K e e s i n g a r g u e s that resistance as a concept is prototype b a s e d , iconic-image b o u n d a n d metaphoric, t h u s precluding our defining resistance precisely, or specifying f e a t u r e s c o m m o n to all circumstances that c a n be characterized t h r o u g h this m e t a p h o r (1992:5). Additionally, according to Keesing, resistance is often too g e n e r a l a gloss to put o n c o u r s e s or g r o u p s of action taken by individuals that h a d other motives - often diverse, often h i d d e n f r o m o n e another. He notes that in relation to the Kwaio, rhetoric of collective struggle a n d mutual obligation often serves to disguise the motives a n d ambitions a n d strategems of individuals (1992:5). In the latter c h a p t e r s of his 1992 work, K e e s i n g explores a n u m b e r of the uses of the concept of resistance in explicating relations b e t w e e n d o m i n a t e a n d subaltern groups. But more importantly, Keesing cautions against a generalization of resistance w h e n examining varying actions in different p h a s e s of history. Keesing also notes that it is imperative w e situate events a n d motives in the historical context of their unfolding a n d situate representations of t h e m in the historical context of their telling (1992). In his 1985 w o r k resulting from his fieldwork in Malaysia, Weapons of the Weak, J a m e s Scott notes that subordinate classes t h r o u g h o u t most of history h a v e rarely  17  b e e n afforded t h e luxury of o p e n , o r g a n i z e d political activity. T h e r e f o r e h e f o c u s e s o n w h a t h e calls 'everday' forms of resistance that fall short of outright defiance: foot d r a g g i n g , slander, a r s o n , sabotage, f e i g n e d ignorance a n d false c o m p l i a n c e . He also d e n o t e s other f o r m s of resistance such as backbiting, gossip, character assassination, rude n i c k n a m e s a n d rude gestures. In his w o r k Domination and the Arts of  Resistance,  Scott (1990) defines more clearly his discussions of t h e ' w e a p o n s afforded to the weak'. Scott notes that w h a t may a p p e a r to be acts of d e f e r e n c e are actually acts of resistance; t h e a p p e a r a n c e of a lack of r e s p o n s e is not a n indication of a c c e p t a n c e of domination. H e also elaborates o n w h a t contributes to exploitation. A c c o r d i n g to Scott, exploitation n e e d not be strictly material, but also includes acts of personal humiliation. Scott talks of social s p a c e s in power relations; discussing t h o s e acts of resistance that are r e s e r v e d for private places a n d those exhibited in locations of uninhibited s p e e c h w h e r e h i d d e n transcripts are revealed v i a a p p r o v e d m e d i a ( 1 9 9 0 : 1 7 5 - 6 ) . Additionally Scott d i s c u s s e s h o w resistance is played out or mediated t h r o u g h a n d d i s p l a y e d in folk culture or folktales such a s the trickster stories of R a v e n in Northwest Coast mythology a n d t h e Brer Rabbit stories in the south. A c c o r d i n g to Keesing, J e a n C o m a r o f f s (1985) analysis of t h e Tshidi of South Africa, s u g g e s t s that w e may not w a n t to define resistance solely in terms of c o n s c i o u s a n d collective subaltern strategies of confrontation a n d covert opposition (Keesing 1992:215). Comaroff distinguishes b e t w e e n those f o r m s of resistance m e d i a t e d t h r o u g h political struggle a n d those of religious forms, noting that a m o n g the religious f o r m s political a g e n d a s may remain partially hidden. C o m a r o f f s f o c u s is o n the internal transformations in productive a n d p o w e r relations as well as the pervasive structural  18  c h a n g e s following a century a n d a half of colonialism v i a Christian missionaries (1985:1). A s part of that study, Comaroff e x a m i n e s t h e m a n n e r in w h i c h symbolic s c h e m e s mediate structure a n d practice; how, within a system w h o s e parameters w e r e t h e m s e l v e s redefined in the colonial context, there w a s a c o m p l e x i n t e r d e p e n d e n c e of d o m i n a t i o n a n d resistance, c h a n g e a n d perpetuation (1985:260). Comaroff identifies two d o m a i n s contributing to the d y n a m i c s of Tshidi order: t h e formal a p p a r a t u s of p o w e r a n d the implicit structures of everyday practice. Notes Comaroff, just a s colonization w a s a process w h i c h o v e r - p o w e r e d both indigenous institutions a n d c o m m o n s e n s e categories of the Tshidi world, so resistance lay in t h e struggle to counteract the invasion in all of its aspects (1985:260). W h i l e the discussions of resistance offered by Keesing, Scott a n d Comaroff d o contribute to s o m e d e g r e e to a n understanding of m y discussion of resistance a m o n g St6:l6 fishers, it is G a v i n Smith's less cognitive a p p r o a c h that best serves m y e x a m i n a t i o n of the actions a n d reactions of St6:l6 fishers. In his 1 9 8 9 w o r k Livelihood and Resistance,  Smith begins his discussion of peasant rebellion in Peru by identifying  w h a t h e calls the "blind spots" apparent in existing peasant studies. A c c o r d i n g to Smith, political initiatives have b e e n o v e r l o o k e d in studies f o c u s i n g o n discussions of p e a s a n t s ' livelihoods. Additionally Smith notes, that studies f o c u s i n g o n rebellion a n d p e a s a n t s ' revolutionary potential overlook h o w resistance is interlinked with d e v e l o p m e n t a n d d e v e l o p m e n t policies. Smith seeks to avoid t h o s e blinds spots by carefully constructing the historical context s u r r o u n d i n g p e a s a n t g r o u p s ' livelihoods a n d clearly illuminating h o w that historical context, development, a n d d e v e l o p m e n t policies are linked to peasants' livelihood a n d acts of resistance or rebellion in the  19  production or reproduction of culture. For Smith, two important factors must be c o n s i d e r e d in u n d e r s t a n d i n g peasant culture. First, d r a w i n g on Blanco Muratorio's 1987 discussion of the social history a n d e c o n o m i c s of the H i g h N a p o , Smith stresses t h e importance of not v i e w i n g p e a s a n t culture a s "at first pristine a n d t h e n invaded f r o m without, but rather v i e w e d as from the beginning the assertion (or failure) of will a n d identity under conditions of d o m i n a t i o n a n d resistance." Secondly, it is essential to recognize peasant cultures as h e t e r o g e n o u s - "be it in terms of s o c i o e c o n o m i c differentiation, the f o r m of domestic enterprise, or e n g a g e m e n t in geographically d i s p e r s e d sectors of the e c o n o m y " (1989:27).  Smith chronicles the events s u r r o u n d i n g a c a m p a i g n lasting over a  h u n d r e d years - a w a r of attrition b e t w e e n the H u a s i c a n c h a a n d the haciendas. His w o r k reflects t h e h e t e r o g e n o u s a s p e c t s of the H u a s i c a n c h a t h r o u g h his d i s c u s s i o n of their prehistoric past a n d its connection with their present w a y s of life a n d the radical c h a n g e s e x p e r i e n c e d in the domestic units essential to H u a s c i c a n c h a livelihoods. He d e s c r i b e s h o w H u a s c h i a n c h a social relations, within the domestic h o u s e h o l d units as well as within the larger community, reflect not just the production of a livelihood, but the political protection of the conditions necessary for the c o n t i n u e d reproduction of a w a y of life - this "protection" taking the form of acts of resistance a n d rebellion. Smith d e m o n s t r a t e s that acts of resistance a n d rebellion c a n n o t be v i e w e d as o u t s i d e t h e creation of, in this case, p e a s a n t culture. T h e s e acts m u s t b e v i e w e d a s a m e c h a n i s m of cultural reproduction or more specifically the protection of a livelihood w h i c h is interconnected with a social identity that must be v i e w e d in c o n n e c t i o n with the specific individual H u a s c i c a n c h a history/prehistory a n d e c o n o m y as well as within the  20  context of a global history a n d economy.  A c c o r d i n g to Smith, his task is modest in  s c o p e in that he is not asking 'why' peasants rebel or w h i c h p e a s a n t s rebel, but rather 'how' the rebellion is put together (1989:25). A c c o r d i n g to Smith it is n e c e s s a r y to rethink the role of leadership as well as the role of unity in discussions of resistance. He further notes that the role of the charismatic leader is o v e r e m p l o y e d . A s notes Smith, too often unity a n d solidarity in political resistance are diametrically o p p o s e d to, a n d m a d e to be exclusive of, individualism. Unity is s e e n to rest o n homogeneity, a n d h o m o g e n e i t y is s e e n to d e p e n d on the s u p p r e s s i o n of individual differences (1989:27). St6:l6 fishers h a v e consistently protested g o v e r n m e n t inference into their w a y of life. W h i l e those actions or responses have t a k e n varying forms, all are purported to be rooted in St6:l6 tradition. A s a part of my examination of r e s p o n s e s to fisheries regulation, I s e e k to uncover the links b e t w e e n resistance a n d tradition as regards the St6:l6 fishery. However, discussions of tradition can prove problematic. This is particularly true as regards First Nations peoples in British C o l u m b i a in that the courts h a v e relied on static notions of Aboriginal traditions that disregard c h a n g e s in Aboriginal w a y s of life arising out of e n g a g e m e n t with colonial society. In my examination of St6:l6 r e s p o n s e s to regulation I attempt to sidestep the p r o b l e m of 'tradition' by relying o n a discussion of tradition that implies a c o n n e c t i o n to a real or imagined past as identified by the St6:l6 with w h o m I spoke. By incorporating t h o s e e l e m e n t s identified by the St6:l6 themselves, my discussion of tradition reflects the c h a n g e that c o m e s f r o m the colonial experience. Before examining h o w tradition supports the specific acts of resistance that I have identified in this thesis as r e s p o n s e s to regulation, it is important to first review h o w the concept of tradition has b e e n  21  d i s c u s s e d in the discipline of anthropology.  Discussions of Tradition Discussions of tradition h a v e taken the form of t h o s e regarding the 'invention of tradition' as in H o b s b a w m a n d Ranger's 1983 work. A s a part of this discussion, it is noted h o w s y m b o l s of the colonizer take o n ritual m e a n i n g a m o n g the c o l o n i z e d a n d b e c o m e a part of their tradition, a tradition that has b e e n retooled to reflect the n e e d s a n d a g e n d a s of both sides. C a n n a d i n e , in his s u b m i s s i o n to H o b s b a w m a n d Ranger's collection, notes that during the Victorian a n d Edwardian eras, in r e s p o n s e to the increasing size of the British Empire, the n e e d for symbolic a n d ritual m e a n s to reign over ths far-flung territory, legitimating symbols of tradition w e r e not s o m u c h 'invented' as refined a n d carefully f r a m e d (1983:124). In his discussion of a "Tradition of Invention," Michael Harkin (199 ) f o c u s e s on h o w the r e - e m e r g e n c e of the past is u s e d as a m e a n s of dealing with attempts at s u p p r e s s i n g Aboriginal c u s t o m s o n the Northwest Coast of British C o l u m b i a . Harkin writes of a Heiltsuk potlach held in 19  , the first o n e in 5 0 years as s u c h practices  w e r e o u t l a w e d in 192 . Notes Harkin, only the older community m e m b e r s could r e m e m b e r attending a potlatch in their o w n community, c o n s e q u e n t l y very f e w children s p o k e the Native l a n g u a g e or fully u n d e r s t o o d the m e a n i n g of the potlatch. But it is Harkin's discussion of the c a n o e j o u r n e y or the construction of a n e w traditional p e r f o r m a n c e that t o u c h e s specifically on the a r g u m e n t that n e w traditions are b o u n d to be p e r c e i v e d as inauthentic a n d false. A c c o r d i n g to Harkin, the invented tradition of the c a n o e festival e v o k e d such strong emotion a n d blending of personal a n d collective e x p e r i e n c e that it w a s m a d e authentic. A l t h o u g h it w a s new, it w a s constructed out of  22  cultural f r a g m e n t s in the m a n n e r of a bricolage; individual signifiers all h a d p r e established m e a n i n g s . A c a n o e b e c a m e not an obsolete m o d e of transportation but a symbol of, on the o n e h a n d , historic culture, a n d on the other h a n d , the revitalization of c o n t e m p o r a r y culture (Harkin 1997:110). Marie M a u z e , in the introduction of a collection of e s s a y s regarding the uses of tradition in Native society remarks on h o w tradition has c o m e to be v i e w e d as s o m e t h i n g that is continually being p r o d u c e d a n d nurtured by n e w ideas. In short, a c c o r d i n g to M a u z e , the notion that the present is d e s c e n d e d f r o m a traditional past has given w a y to the opposite notion: the past is r e a c h e d t h r o u g h inductive reasoning that takes place in the present (1997:6). A c c o r d i n g to M a u z e : ...tradition is u s e d to justify the present t h r o u g h r e m e m b e r i n g the past. It interprets the past a c c o r d i n g to the n e e d s of the present. T h u s the past is continually r e a s s e s s e d a n d reconstructed d e p e n d i n g on the c o u r s e of events.... From this point of view, tradition d o e s not a p p e a r as a c o r p u s of statements h a n d e d d o w n u n c h a n g e d from o n e generation to the next. It is a s u c c e s s i o n of a n s w e r s to q u e s t i o n s about the present, a n d c o n s e q u e n t l y it takes on the status of a n always correct a n s w e r to the questions a s k e d . (1997:6-7) Essentially cultural factors (or practices) reified in e t h n o g r a p h i c m o n o g r a p h s not only refer to the past, they b e c o m e the f o u n d a t i o n for present as well as future identities (1997:9). I believe M a u z e ' s discussion of tradition has important implications in my examination of the specific r e s p o n s e s to regulation I have isolated in this study. T h e r e s p o n s e s e x a m i n e d in this thesis are, in the w o r d s of the fishers, rooted in tradition. "Tradition" has indeed b e c o m e the short a n s w e r to questions a s k e d regarding the St6:l6 fishery. M o r e specifically, for St6:l6 fishers, tradition has b e c o m e a m e a n s of justifying the present t h r o u g h r e m e m b e r i n g the past. However, notes Sider (1993,  23  2 0 0 3 ) tradition c a n n o t be v i e w e d in isolation of history or struggles with outside forces a n d often f o r m s the bases of internal antagonisms w h e n set into opposition of continuity. In his discussion of the complex c o n n e c t i o n s a n d oppositions b e t w e e n tradition a n d continuity, Sider notes that it is necessary to look closely at the f o r m s of social relations, particularly a m o n g d o m i n a t e d peoples, to w h i c h the w o r d "tradition" refers - relations that often turn out to express claims for a u t o n o m y or partial a u t o n o m y in the midst of poverty a n d powerlessness m u c h more than they express continuity with a real or imagined past (1993:11). In his discussion of the struggle for history, tradition a n d h o p e a m o n g Native peoples, Sider (1997) discusses the place of experience in that struggle. Drawing on the w o r k s of T h o m p s o n a n d Williams, Sider notes that from (and he insists, against) e x p e r i e n c e c o m e both a g e n c y a n d culture. A c c o r d i n g to Sider, "experience is social a n d relational; it is not only socially f o r m e d a n d continually s h a p e d but also n a m e s a major a r e n a for the c h o s e n a n d unavoidable struggles of all f o r m s a n d p r o c e s s e s of differentiation - i.e. class, g e n d e r a n d ethnicity - for it's both f r o m a n d against one's c h a n g i n g specificity that experiences are constructed (1997:62-3). Sider's discussion of the place of experience as it relates to actions of a d o m i n a t e d p e o p l e s provides a f r a m e w o r k for examining the e m e r g i n g identities arising f r o m a r e m e m b e r e d the past; a past r e v e a l e d in the existing literature regarding the Coast Salish in g e n e r a l a n d more specifically the St6:l6.  The Research Problem within the Context of an Existing Literature In o n e of the most recent discussions of St6:l6 historical identity, Keith Carlson notes the n e e d for the Aboriginal historical experience to be brought "out of the  24  b a c k g r o u n d " (2003:338). Carlson notes that in general, past stories h a v e essentially portrayed w e s t e r n colonialism's impact on Aboriginal people f r o m the colonial perspective. A c c o r d i n g to Carlson: ...within this interpretive framework, Native people are principally foils u s e d to critique a n d expose the e x c e s s e s of w e s t e r n colonialism a n d capitalism....preventing indigenous people f r o m being portrayed a s anything more c o m p l e x t h a n reactive victims in the history of w e s t e r n d e v e l o p m e n t a n d more recently as ecological prophets for a society that e x p e r i e n c e s p a n g s of guilt over its consumptive past. (2003:338) By e x a m i n i n g the historical experiences of St6:l6 fishers within a context of a g e n c y a n d t h r o u g h the d y n a m i c i s m of tradition a s it supports specific r e s p o n s e s to regulation, their historical e x p e r i e n c e s are indeed r e m o v e d f r o m the s h a d o w s . W h a t must not be d i s c o u n t e d , however, is the contribution of these past portrayals to e m e r g i n g identities a n d reconfigurations of power, particularly as regards access, to a n d m a n a g e m e n t of, fisheries resources as St6:l6 fishers h a v e simultaneously a d v a n c e d a portrait of t h e m s e l v e s as the first commercial fishers a n d ultimate g u a r d i a n s of the s a l m o n resource. In her historical account of the circumstance a n d situations that contributed to the past a n d c o n t e m p o r a r y identities of the Indians of the Puget S o u n d , A l e x a n d r a H a r m o n notes that, contributing acutely to this identity is the relationship that d e v e l o p e d b e t w e e n traders a n d Indians (1999). From Harmon's discussion of the partnerships (trading, marriage, etc) that d e v e l o p e d as non-Natives settled in the a r e a , it b e c o m e s clear that a n Indian identity e m e r g e d within the s p a c e w h e r e white e c o n o m i e s intersected with Indian e c o n o m i e s . A s with the St6:l6, a c c e s s to natural resources, primarily fisheries resources, is at the core of that intersection. H a r m o n notes that since at least the 1880s U.S. officials have set the parameters of Indian identity for 25  p u r p o s e s of political a n d property relations, but they have never m o n o p o l i z e d the p r o c e s s of defining 'Indian' or 'tribe.' Such classifications a n d their m e a n i n g s have e v o l v e d f r o m negotiations b e t w e e n classifiers a n d classified. H a r m o n ' s observations of the creation of an Indian identity a m o n g Puget S o u n d Native peoples leaves o p e n the door for contributions to identity construction by Native peoples t h e m s e l v e s .  Harmon's  d i s c u s s i o n regarding the creation of identity directly informs this study in that specific identities arise in c o n n e c t i o n w i t h acts of rebellion a n d resistance o n t h e part of St6:l6 fishers. O n e of the most recent discussion of St6:l6 peoples f o c u s e s on the implementation of Aboriginal justice programs. T h r o u g h his c a s e study of Aboriginal justice p r o g r a m s in three C o a s t Salish communities, Miller p r o b l e m a t i z e s t h e c o n c e p t of traditional justice as it applies to continuity with a primordial past (2001). Miller notes that the communities o n w h i c h he f o c u s e s are not merely linked by an abstract participation in a l a n g u a g e community rather they are m e m b e r s of a broader network of social relations with considerable time d e p t h ( 2 0 0 1 : 7 ) .  7  T h e c o m m u n i t y justice  p r o g r a m s in Miller's study include the Upper Skagit Court, the S o u t h [ V a n c o u v e r ] Island Justice Project a n d the St6:l6 Nation justice initiatives. Examining e a c h c a s e individually, the Upper Skagit Court, the oldest of the three p r o g r a m s e x a m i n e d , w a s established following the legal decision, U.S. v. Washington in 1974. A s a part of this landmark legal decision the Upper Skagit a n d other tribes in w e s t e r n W a s h i n g t o n r e g a i n e d a c c e s s to the s a l m o n harvest as specified under the terms of the w e s t e r n  Bruce Miller's c a s e study includes the s a m e community o n w h i c h I f o c u s my e x a m i n a t i o n of resistance a n d a c c o m m o d a t i o n as it is played out in the s a l m o n fishery. 7  26  W a s h i n g t o n treaties s i g n e d in 1854-56. Explains Miller, the ruling created the n e e d for a v e n u e in w h i c h to try fishing violations in order that the tribe could m a n a g e its o w n fishing interests a l o n g with the state a n d federal g o v e r n m e n t (2001:7-8). T h e s e c o n d p r o g r a m e x a m i n e d is the South [Vancouver] Island Justice Project w h i c h e m e r g e d out of an effort in the 1980s to e d u c a t e m a i n s t r e a m legal personnel a b o u t Coast Salish practices a n d concepts. He notes that the project b e c a m e a diversionary justice project in w h i c h cases could be treated by Coast Salish peoples t h e m s e l v e s (2001:8). A n d finally, Miller f o c u s e s on the St6:l6 Nation justice initiatives that a r o s e in the 1990s out of three primary motivations: 1) to create a justice p r o g r a m that could be put into place following treaty negotiations with the province a n d federal g o v e r n m e n t s a n d thereby assert St6:l6 rights a n d title; 2) to implement St6:l6 cultural practices as they pertain to justice; a n d 3) to begin a process of restoring communities to a state of health, v i e w e d holistically. A c c o r d i n g to Miller the "problem of justice" includes o n e of resolving the pressures a n d difficulties imposed on indigenous communities f r o m the d o m i n a n t A m e r i c a n a n d C a n a d i a n societies in reestablishing internal control over the practices of justice. Miller discusses the problems by first, identifying past justice practices as a p p l i e d to present d a y circumstances a n d t h e n by discussing h o w attempts are m a d e to reconcile the past a n d the present a m o n g the people relying o n t h o s e practices. Rather t h a n providing a primordialist account of justice, Miller's historically a n d politically c h a r g e d account of Coast Salish justice systems f o c u s e s on h o w colonial p r o c e s s e s h a v e t r a n s f o r m e d a n d distorted the politics of indigenous communities, including the w a y s in w h i c h community m e m b e r s u n d e r s t a n d their o w n prior practices  27  of justice (2001:201). Miller notes that his u s e of the term 'tradition' points to its place in the d i s c o u r s e s p r o d u c e d a n d the play of p o w e r in present-day c o m m u n i t i e s ( 2 0 0 1 : 3 5 ) . D r a w i n g o n M a u z e ' s discussion of tradition as it relates the present to the past, Miller e m p h a s i z e s h e r notion that "tradition is primarily a political instrument for regulating both internal a n d external relations" ( M a u z e 1997:12 in Miller 2 0 0 1 : 3 5 ) . It is Miller's e m p l o y m e n t of t h e related c o n c e p t s of resistance a n d a c c o m m o d a t i o n within indigenous communities a s it relates to the implementation of traditional justice p r o g r a m s in Coast Salish communities that informs my examination of S e a b i r d Island's protocol agreement. Additional discussions of Coast Salish a n d specifically the St6:l6 include the non-material discussions of Coast Salish peoples a n d power relations s u c h as J a y Miller's examination of L u s h o o t s e e d culture a n d Crisca Biertwert's poststructural "bricolage" that f o c u s e s o n Coast Salish figures of power a n d p o w e r relations as they relate to Indian agency. In his 1999 work, Lushootseed  Culture and the  Shamanic  Odyssey: An Anchored Radiance, J a y Miller notes that w h e n trying to explain their present condition to outsiders, c o n t e m p o r a r y L u s h o o t s e e d elders often distinguish b e t w e e n culture a n d survival to express the recent c h a n g e s that h a v e greatly impacted their lives a n d communities. A c c o r d i n g to J a y Miller, survival is w h a t p e o p l e d o to keep t h e m s e l v e s a n d their families in f o o d , clothing a n d other necessities including, since 1850, off reservation w a g e labor w h i c h he maintains contributed to the loss a Native c o m m u n i t y a n d a loss of full participation in family life. Survival also m e a n s relinquishing Native elements of life - l a n g u a g e a n d traditions that interfere with e d u c a t i o n . Culture is the quality of a lifeway b a s e d in the land a n d is not t h e s a m e  28  thing a s survival or e a r n i n g a living by exploiting the s a m e terrain. Jay Miller also f o c u s e s on the role of s h a m a n in L u s h o o t s e e d society - lifecycles, death, marriage, puberty, cures. He talks of spirit b o n d s - the hallmark of life w a s the existence of immortals - a n d describes L u s h o o t s e e d life as e x p e r i e n c e d t h r o u g h the s h a m a n i c odyssey. In its full complexities, the s h a m a n i c o d y s s e y involved all of the institutions of L u s h o o t s e e d society, ranging t h r o u g h technology, e c o n o m y , polity, kinship, religion a n d language. A c c o r d i n g to Jay Miller, technological relations with the e n v i r o n m e n t w e r e at the forefront of the rite. A s a part of her discussion of Coast Salish p o w e r relations, Bierwert situates the St6:l6 o n the l a n d s c a p e by attempting to give an historic a n d e c o n o m i c profile t h r o u g h a narrative analysis of cultural complexity. Drawing on the w o r k s of Casey, M y e r s a n d Basso, Bierwert talks of points a n d places in a n d a l o n g the river p o s s e s s i n g spiritual a n d social importance as part of her discussion of place. She d r a w s a Coast Salish parallel to Basso's storied landscape of the W e s t e r n A p a c h e t h r o u g h her discussion of five w a y s to k n o w a place i.e. the fish camp: 1) a natural place - image e v o k i n g l a n g u a g e of the river, the banks, the landscape a n d the fish 2) social place - describing the c a m p physically but also the w o r k that takes place, the a t m o s p h e r e , the family interaction 3) a s o u r c e of d a n g e r - describes the physical characteristics of the river's e d g e , the c a n y o n that m a k e s it d a n g e r o u s , again with image e v o k i n g l a n g u a g e 4) historic place - m a k e s this point by relating the stories of h o w Lady Franklin rock c a m e to be n a m e d by the non-Natives 5) mythic place - stories of the t r a n s f o r m e d rocks that d e n o t e the place a s spiritual. Bierwert takes o n the subject of k n o w l e d g e a n d p o w e r in her discussion of h o w texts are constructed by the Native a n d n o n Native w o r l d a n d  29  w o r l d a n d w h a t the implications are for both. T h e most recent indepth, grassroots examination of the St6:l6 fishery is B i e r w e i f s discussion of the Indian business of fishing (1999). R e g a r d i n g her discussion of the fishery, Bierwert notes that her aim is to illuminate the historical t e n s i o n s created t h r o u g h the reckoning a n d regulation of Indian fishing practices, w h e r e b y she describes the collective s a l m o n runs as contested sites (1999:38). Specifically regarding the b u s i n e s s of fishing, Bierwert describes a river fishery c o n d u c t e d outside the s e n t e n c e of the law. Bierwert writes that: Fishing legally has meant fishing in prescribed places within e n f o r c e d hours with limited technology, cutting off the n o s e s a n d dorsal fins of the catch [to mark t h e m as Indian fish] In fact Indian fishing has long e x c e e d e d these limitations a n d involved a variety of r e n e g a d e practices (keeping alive a c o n s i d e r a b l e k n o w l e d g e of the river), a n d hauling c o n t r a b a n d ( u n m a r k e d ) fish in sacks or plastic g a r b a g e bags for sale to dealers. (1999:224) B i e r w e i f s description of Indian fishing paints a romantic picture of resistance on the part of St6:l6 fishers. W h i l e factually describing a w a y of life, B i e r w e i f s portrayal of the fishery distinguishes the cultural practice of fishing (illegal fishing) f r o m the business of fishing (legally negotiated sales agreements). In my conversations with St6:l6 fishers I h e a r d t h e s e s a m e stories about w h i c h Bierwert writes. However, I also w a s part of discussions regarding the practical business of fishing; profit a n d loss, c r e w payments, capital expenditure, o v e r h e a d , preparation for the prospect of a sale a g r e e m e n t a n d preparation for the prospect of no sale agreement. Bierwert's examination, as with J a y Miller's, separates the material f r o m the cultural. In contrast to Bierwert a n d Miller's less material discussion of Coast Salish a n d St6:l6 life, Daniel Boxberger's examination of the Lummi fishery f o c u s e s on the very real material aspects of Coast Salish life in his discussion regarding Lummi fishers a n d 30  the w a y they h a v e b e e n included a n d e x c l u d e d f r o m t h e c o m m e r c i a l fishing industry. Boxberger's a p p r o a c h to t h e study of internal d e p e n d e n c y e x a m i n e s a c c e s s to resources a s well a s control over productive resources. By d o c u m e n t i n g t h e c h a n g e in fishing t e c h n o l o g y intended to increase harvest, in concert with c h a n g e s in policy, Boxberger provides a point of departure to investigate t h e Lummis a s a specific user g r o u p within t h e salmon industry.  8  A c c o r d i n g to Boxbeger, t h e c h a n g i n g patterns in t h e utilization o f t h e resource a n d t h e concomitant c h a n g e s in t h e society c a n be s e e n a s t h e direct result o f t h e tribe's d o m i n a t i o n b y t h e larger society. Boxberger points o u t that b e s i d e s political a n d e c o n o m i c activities, t h e dominant society brings its o w n technology; dramatically n e w t e c h n o l o g y that t e n d s to redirect m a n y aspects of traditional societies, f o r t h e most part supporting t h e ideology of t h e social system that introduces it. H e notes that s o m e tribal m e m b e r s s a w actions by the tribal council to limit entry a s a m e c h a n i s m f o r protecting their o w n interests, since several tribal council m e m b e r s o w n e d p u r s e siene vessels a n d w e r e successful fishers (after t h e Boldt d e c i s i o n ) .  9  A c c o r d i n g to  Boxberger, b y carefully selecting crew m e m b e r s a n d b y assisting others t o enter t h e fishery, a strong faction w a s created that aided in acquisition of political p o w e r through elected office a n d t h r o u g h support of t h e decision m a k i n g process. Additionally  S t 6 : l 6 fishers with w h o m I s p o k e take exception to a designation o f user g r o u p within t h e s a l m o n fishery. Such a designation d o e s not reflect their place in t h e fishery a s t h e original users, m a n a g e r s or stewards of t h e resource. It also r e m o v e s a n y spiritual c o n n e c t i o n to t h e resource. 8  l n 1 9 7 4 United States Federal District Court j u d g e G e o r g e Boldt h a n d e d d o w n a decision defining Indian fishing rights a n d g u a r a n t e e i n g treaty Indians 5 0 percent o f t h e allowable harvest of s a l m o n (Boxberger 1989:1). T h e case, United States v. State of Washington, is generally referred to a s t h e "Boldt decision." 9  31  a c c o r d i n g to Boxberger, a parallel structure exists at Lummi w h e r e a small faction of the tribe, the purse seine operators w h o take over sixty percent of the total Lummi fish harvest, control the decision-making body of the tribe. Since class relationships are e c o n o m i c relationships, it is important to u n d e r s t a n d the place in the class structure of the society in w h i c h they are a part. Boxberger notes that the the Lummi w e r e part of the capitalist e c o n o m y prior to Boldt, in that the pre-Boldt fishery existed as a s u p p l e m e n t to other f o r m s of income. A c c o r d i n g to Boxberger, w h a t e m e r g e d in the post-Boldt fishery w a s a highly capitalized fishing fleet g e a r e d t o w a r d the market. Notes Boxberger, the growth of this highly capitalized fishery c r e a t e d a distinct economically elite s e g m e n t of Lummi society, a s e g m e n t that did not exist prior to 1974  St6:l6 F i s h e r s R e s p o n d By e n g a g i n g the a f o r e m e n t i o n e d w o r k s , I e x a m i n e selected, specific r e s p o n s e s to fisheries regulation f o c u s i n g , not only o n the larger colonial/post colonial conflict, but also o n t h e internal conflict inherent in t h e domination/resistance dialectic. Critical t o this examination of the Aboriginal right to fish is the role of the p r o c e s s e s of continuing cultural a n d social construction - tradition - as d i s c u s s e d by M a u z e a n d Sider a n d e x p r e s s e d in specifics acts of resistance a n d a c c o m m o d a t i o n . Essential to my discussion is the relationship b e t w e e n experience a n d tradition a n d the m a n n e r in w h i c h that relationship contributes to specific acts of resistance a n d a c c o m m o d a t i o n . G i v e n that tradition is d y n a m i c a n d socially constructed, h o w is it s h a p e d / r e s h a p e d by the histories or experiences of the St6:l6 in the context of the larger C a n a d i a n history is essential to an u n d e r s t a n d i n g of agency. Specifically, I s e e k to identify the particular c o m p e t i n g a n d antagonistic interests s h a p i n g St6:l6 fishers r e s p o n s e s to regulation: 1)  32  T o w h a t extent are they s u p p o r t e d by traditional practices as well as the c o n t e m p o r a r y political structure of the St6:l6 Nation? 2) H o w are they s h a p e d by the e x p e r i e n c e s of the St6:l6? 3) T o w h a t extent do they reflect existing configurations of p o w e r within and outside of the larger St6:l6 collective? State practices regarding Aboriginal fisheries h a v e b e e n , for the most part, products of fisheries regulations imposed over the last century. Recent s u p r e m e court rulings h a v e brought about s o m e c h a n g e s in federal fisheries m a n a g e m e n t plans a n d St6:l6 fishers have r e s p o n d e d to these c h a n g e s in a variety of w a y s that are, at times, in conflict with e a c h other. W h e n examining the r e s p o n s e s to regulation o n the part of St6:l6 fishers, the fact that there are n u m e r o u s r e s p o n s e s must be noted. W h a t is important to note, that while for the p u r p o s e s of my examination of the fishery I focus on three r e s p o n s e s aside from Bierwert's "outlaw fishing" response, the single most visible r e s p o n s e is simply to g o fishing. I f o u n d that a n u m b e r of the fishers with w h o m I s p o k e h a d a non-specific, general k n o w l e d g e of fisheries regulations a n d that u p o n c o m p a r i n g the information I received regarding those regulations, differences in u n d e r s t a n d i n g just w h a t the rules are w e r e apparent. T h e s e differences w e r e e v e n more a p p a r e n t in the lack of understanding of h o w the Pilot Sale A r r a n g e m e n t w o r k e d a n d w h y it c e a s e d . T h e o n e rule about w h i c h there w a s no q u e s t i o n but m u c h debate w a s the fact that the sale of in-river caught salmon w a s against the "white man's law." W h a t h a p p e n s w h e n that "white man's law" is b r o k e n ? St6:l6 fishers say they are the original commercial fishers. T h e sale a n d barter o f f i s h has always b e e n integral to St6:l6 life. W i t h the e m e r g e n c e of the industrial fishery a n d the implementation of fisheries regulations, the e x p e r i e n c e of fishing w a s  33  f o r c e d to the margins outside of the law. Commercial fishing has c o n t i n u e d with the label of commercial fisher b e c o m i n g a b a d g e of h o n o r or tradition. W r i t e s Bierwert: Indian fishers h a v e insisted on selling fish, have f o r c e d t h e m s e l v e s to act counter to enforcement w h e r e no option of an informal e c o n o m i c sector has allowed their subaltern practice a cover to thrive. O u t l a w fishing t h u s has actively e n g a g e d with state power a n d with corporate enterprise, a n d the contests of power that are particular to it reveal cross-cutting intersections of law a n d marketplace that p o s e in political d i s c o u r s e s as intersections of race, culture, a n d e c o n o m y . (1999:243) In e s s e n c e St6:l6 commercial fishing takes place within a s p a c e b o u n d e d by tradition a n d state r e g u l a t i o n .  10  It is o n this s p a c e that I concentrate my e x a m i n a t i o n of St6:l6  commercial fishing, including rather than d e n y i n g , both e d g e s of the space. St6:l6 fishers c o n t i n u e to p u s h for a formal a g r e e m e n t that provides for the legal sale of i n river c a u g h t s a l m o n a n d did s u c c e e d in obtaining a small a g r e e m e n t in the fall of 2 0 0 3 after Fisheries a n d O c e a n s withdrew the sales a g r e e m e n t covering the 2 0 0 3 s u m m e r s o c k e y e run. T h r o u g h my selection of three specific r e s p o n s e s to fisheries regulation I juxtapose w h a t c a n be s e e n as simultaneously c o n v e r g i n g a n d diverging acts of resistance a n d a c c o m m o d a t i o n . I posit a notion that a g e n c y is manifest as two sides of a single coin - resistance a n d a c c o m m o d a t i o n - a n d is not limited to acts c o n d u c t e d  F o r the p u r p o s e s of my examination I limit my study to t h o s e g r o u p s comprising the nineteen H a l q ; e m e y l e m s p e a k i n g b a n d s comprising the St6:l6 Nation. M y f o c u s is o n the "commercial" fishers a m o n g those bands. Initially as a part of the 1992 Pilot Sale A r r a n g e m e n t M u s q u e a m a n d Katzie fishers w e r e included with t h e s e St6:l6 b a n d s in calculating s a l m o n allocations. T h a t c h a n g e d the next year with M u s q u e a m receiving a separate allocation. Katzie c o n t i n u e d to be included with the remaining St6:l6 b a n d s . W h i l e c o n s i d e r e d as St6:l6 in s o m e of the e t h n o g r a p h i c literature, political affiliations in the w a k e of treaty negotiations have shifted identity designations to s o m e d e g r e e . Hence, the M u s q u e a m a n d Katzie peoples are generally referred to as St6:l6 in heritage. T h e M u s q u e a m a n d Katzie b a n d s h a v e fishers w h o hold industrial fishing licenses not held by the fishers comprising my study aside f r o m o n e fisher, Lester N e d . T h i s reality leaves the door o p e n to future examination regarding the relationship b e t w e e n the Native a n d non-Native industrial fishery. 10  34  outside the margins of the law. W h i l e I maintain that the p r e d o m i n a t e r e s p o n s e to fisheries regulation is simply to go fishing, by f o c u s i n g on three differing a n d high profile r e s p o n s e s to regulation, I seek to demonstrate that the St6:l6 r e s p o n s e s to regulation represent more than a s h a r e d ideology, but a c o m m o n material a n d meaningful f r a m e w o r k rooted in tradition for living t h r o u g h , talking about, a n d acting u p o n social orders characterized by domination. In c h a p t e r 4, I examine C h e a m ' s particular position regarding the Aboriginal right to fish a n d the role of tradition in the creation of their p e r s o n a of " W a r r i o r s o n the W a t e r . " I also e x a m i n e h o w that particular stance s h a p e s the band's relationship with the larger St6:l6 community. A s a part of my discussion I chronicle the n u m e r o u s confrontations b e t w e e n C h e a m a n d fisheries officers, confrontations that h a v e on o c c a s i o n resulted in combat on the river a n d in o n e instance brought railway freight traffic b o u n d for the w e s t coast to a halt. In chapter 5, I examine the Justice Protocol A g r e e m e n t initiated a n d s i g n e d by the S e a b i r d Island B a n d in their attempt, in the w o r d s of the individual w h o s p e a r h e a d e d the implementation of the a g r e e m e n t to "build a f o u n d a t i o n of a n e w relationship." A s a part of my discussion I identify the elements of the a g r e e m e n t a n d h o w it is to function. More importantly I pose the question, " C a n a collaboration d e s i g n e d to bring resolution function within a f r a m e w o r k of regulation, that for s o m e inside [and outside] the community has no resolution w h e n set within the context of the Aboriginal right to fish?" Specifically, I seek to establish a link b e t w e e n the justice a g r e e m e n t initiated by the Seabird Island community a n d the u n i q u e history of that c o m m u n i t y a s well as with the fishery that has b e c o m e closely a s s o c i a t e d with t h e m .  35  Additionally I s e e k to uncover to w h a t extent the unique characteristics of the w i n d dry fishery has contributed to the implementation of Seabird Island Justice Protocol. A n d finally in chapter 6, I focus on the those fishers w h o s e e k to m a k e a living f r o m fisheries resource a n d w h o have, over the years f o u g h t for a legal right to sale their fish. A s a part of my examination of the "highliners a n d m o n e y m a k e r s " I a s k the question, "Is B i e r w e i f s outlaw fishing a n d the c o n t i n u e d trade, barter or sell of salmon a n overt act of resistance or simply life, lived?" But more importantly I ask, s h o u l d the participation in the legal sale opportunity be s e e n as less traditional t h a n outlaw fishing? Even more importantly, is participation in that fishery a n y less an act of resistance or rebellion on the part of a people s e e k i n g to control s o m e m e a s u r e of their o w n destiny?  The Problem of Research C o n d u c t i n g a n y research a m o n g h u m a n subjects is a d a u n t i n g task fraught with n u m e r o u s ethical s n a r e s a n d traps. T h e task is m a d e more problematic w h e n the participants and/or their specific goals or aims are put in j e o p a r d y by the mere p r e s e n c e of the researcher. A case in point is A v r a m Bornstein's w o r k a m o n g the W e s t Bank Palestinians. Bornstein notes h o w he, a Jewish A m e r i c a n anthropologist c o n d u c t i n g fieldwork a m o n g Palestinian families in the W e s t Bank, p r e s e n t e d the greater potential d a n g e r to his hosts. A s Bornstein writes, " U m m S a m u d (the mother of the h o u s e h o l d ) w a s always keeping track of my w h e r e a b o u t s a n d w a r n i n g me to be careful  If s o m e t h i n g h a p p e n s to you, the Israelis will put us all in prison" s h e said  (2002:21). Similarly, regarding his w o r k a m o n g the L u m b e e Indians of North Carolina,  36  G e r a l d Sider t a l k e d briefly to m e of the problems of chronicling shifts in identity for Native A m e r i c a n peoples in the process of seeking federal recognition; a process w h e r e b y o n e of the requirements is identification a s a n Indian entity by anthropologists, historians or other scholars. U p o n explaining my o w n research a m o n g a people actively involved in treaty negotiations a n d s e e k i n g to a d v a n c e their Aboriginal rights, in particular their rights to the salmon resources of Fraser River, I a s k e d G e r a l d Sider if his w o r k a m o n g a g r o u p seeking federal recognition h a d b e e n difficult. His reply, "It's a pain in the ass. Y o u h a v e to be very careful." W h i l e I wouldn't g o so far as to characterize my particular situation a s a "pain in the ass," I w a s however, cognizant of the potential effects my p r e s e n c e h a d on my research, striving to always be aware of those times w h e n I w a s being u s e d as a "vehicle for a message." This is not to say that my field experiences w e r e superficial, they w e r e not. However, the folks with w h o m I s p o k e h a d long a g o r e c o g n i z e d w h a t "anthropology w a s c a p a b l e of d o i n g - the g o o d a n d the b a d . " Several of the St6:l6 p e o p l e with w h o m I spoke, talked of the things early anthropologists h a d "gotten w r o n g " a n d m e n t i o n e d by n a m e those anthropologists w h o m they felt h a d actually c a u s e d t h e m h a r m . T h i s w a s particularly important to t h e m w h e n they felt that h a r m had c a m e in the f o r m of court testimony as most recently, the courtroom has b e e n the a r e n a in w h i c h battles regarding Aboriginal fishing rights have b e e n w o n a n d lost. A s Bornstein states, e t h n o g r a p h e r s cannot extricate t h e m s e l v e s f r o m unequal relationships a n d s h o u l d b e careful a b o u t writing texts that attempt t o s t a n d outside t h e w o r l d of struggle, contest a n d competition (2002:viii). In the c a s e of my w o r k with the St6:lo, disassociation or extrication w a s impossible. But this d o e s not m e a n that I  37  s o u g h t a d o p t i o n into a family or the ascription of a n "Indian name." It d o e s m e a n that I did indeed find myself in the position of advocate, not just in the struggle with the C a n a d i a n state over Aboriginal rights, but also as a d v o c a t e for o n e Aboriginal g r o u p over another; a situation that for s o m e time c a u s e d me s o m e m e a s u r e of a n g u i s h . I h a v e since c o m e to the conclusion that my actions in regard to that situation w e r e , while I felt at the time the only thing to do, indeed the right thing to do. T h e goal of my research is a n h o n e s t discussion of the power struggles b e t w e e n the St6:l6 a n d the state as well a s the p o w e r struggles a m o n g the St6:l6 t h e m s e l v e s a n d h o w those struggles a r e inherent to t h e colonial experience. M y relationship with the St6:l6 b e g a n in 1996. T h a t year the S u p r e m e Court of C a n a d a ruled in VanderPeet  that sufficient e v i d e n c e did not exist to support the fact  t h a t a 'commercial' s a l m o n fishery is integral to Sto.lo culture or heritage. T h i s w a s a major blow to St6:l6 fishers. T h r o u g h contacts I m a d e with individuals in the Aboriginal Rights a n d Title Department at St6:l6 Nation I w a s introduced to G r a n d Chief Clarence "Kat" Pennier, St6:l6 Fisheries Executive Director Ernie Crey a n d Fisheries Portfolio Holder Lester N e d . In 1997 I contracted with St6:l6 Nation to p r o d u c e a report on the traditional a n d c o n t e m p o r a r y relationship b e t w e e n the St6:l6 people a n d the salmon resource of the Fraser River. I spent the next 18 months c o m b i n g t h r o u g h the St6:l6 archives a n d talking with St6:l6 people about fishing. A b o u t this s a m e time I w a s a c c e p t e d into the Ph.D. p r o g r a m in anthropology at the University of British C o l u m b i a with the notion of continuing my research o n fishing a m o n g the St6:l6. W h i l e I h a d r e m a i n e d in contact with s o m e of the St6:l6 p e o p l e w h o m I h a d met in 1997, primarily Ernie Crey, my fieldwork for this thesis b e g a n in earnest the s u m m e r  38  of 2 0 0 2 . I relied o n the contacts I established in 1997 to s e c u r e interviews for this r e s e a r c h . At o n e point this proved problematic w h e n Ernie Crey, my main contact in the fishery, w a s d i s m i s s e d from his position with St6:l6 Nation as part of w h a t s o m e e x p l a i n e d to m e as "Nation politics" as well as an effort to shift the direction of the Nation's fisheries a g e n d a . By attending fisheries meetings I w a s able to m a k e n e w contacts. Not only did my presence afford me the opportunity to s e c u r e future interviews, I w a s also able to observe the collective actions of a p e o p l e s asserting their Aboriginal right to fish; actions that w e r e at times contentious. Eric W o l f writes that ultimately in a field study y o u may c o m e to k n o w about fifteen p e o p l e very well, a n o t h e r twenty-five reasonably well, a n d p e r h a p s a h u n d r e d well e n o u g h to k n o w their names, w h e r e they live, a n d h o w they are c o n n e c t e d to others by kinship or marriage. Y o u c o m e to k n o w s o m e people "in the r o u n d " a n d others only a s if typecast into two-dimensional categories (2001:52). A c c o r d i n g to Wolf, it is f r o m this information that o n e constructs maps of social relationships through descent, inheritance a n d marriage or of relations b e t w e e n s t o r e k e e p e r s a n d debtors, o w n e r s a n d tenants, leaders a n d followers, patrons a n d clients (2001:52). A s regards the St6:l6, also m a p p e d are the power relations within the individual St6:l6 communities as well a s b e t w e e n t h o s e communities a n d the larger collective of the St6:l6 community. W h i l e s a l m o n is a f u n d a m e n t a l part of St6:l6 life a n d lifeways, roughly less than one-sixth of the St6:l6 population are active fishers. In general those actively involved in the practice of fishing are also actively involved in the protection of fishing rights. I w a s ever a w a r e of the legal ramifications f a c i n g St6:l6 fishers a n d I t o o k great care to  39  avoid placing t h e m in any adverse situations. Hence, t h o s e fishers already in the public e y e b e c a m e the core contributors to my study. In many c a s e s I included the n a m e s of the St6:l6 fishers with w h o m I spoke. This w a s d o n e with their permission a n d at times at their insistence. I used the n a m e s of only t h o s e people w h o h a v e m a d e public statements, in general to the press, regarding their Aboriginal right to fish, a n d the specific m a n n e r by w h i c h they have a d v a n c e d that right. Essentially, fishing is a St6:l6 practice; not strictly a f e m a l e practice or, as the c a s e of the industrial fishery, strictly a male practice. For that r e a s o n , I use the term "fisher" rather t h a n "fisherman" or "fishermen" in the c o u r s e of my discussion. C o n v e r s a t i o n s with Sto.lo fishers did reveal that in the early days of licensing, it w a s primarily 'the m a n of the h o u s e ' w h o o b t a i n e d the fishing license. However, I w a s also told stories of w o m e n fishing in that s a m e capacity during t h o s e early d a y s , a case in point, the story told to me by G r a n d Chief Archie Charles w h o w a s 8 3 years old at the time of my interview. During the course of my field study I o b s e r v e d both m e n a n d w o m e n actively involved in fishing activities a n d I e n g a g e d both m e n a n d w o m e n in d i s c u s s i o n s regarding all aspects of fishing a n d attitudes t o w a r d fisheries regulations. I also o b s e r v e d w o m e n in leadership roles at fisheries meetings, their a g e n d a being consistent with that of their male counterparts. W h a t s e e m e d to drive the a g e n d a s of all in a t t e n d a n c e - male a n d female - w a s the ever shifting political w i n d . C o n s e q u e n t l y , after two s u m m e r s in the field, w h a t e m e r g e d w a s a predominantly male core of contributors to this study. T h i s is not to say that the contributions of f e m a l e fishers w e r e set aside or not incorporated into the final data analysis. Following Dorothy Smith's call to "problematize the everyday" (1987), the life  40  histories a n d stories collected for this study are not subjected to a n intensive content analysis. Narratives are a n a l y z e d f r o m t h e perspective of t h e r e s p o n d e n t s . T h a t is, f r o m t h e stories a n d t h e "accounts of their everyday experience" I m o v e to exploring from that perspective t h e generalizing a n d generalized relations in w h i c h e a c h individual's e v e r y d a y world is e m b e d d e d " (Smith 1987:185). By e m p l o y i n g this f o r m of analysis, I attempt t o de-center t h e imposed narrative f o r m of t h e r e s e a r c h e r by listening not just t h e form, but to t h e content of t h e narratives of life a l o n g t h e river. T h i s a p p r o a c h w o r k s to 'decolonize' research m e t h o d o l o g y (Linda T u h i w a i Smith 1999).  11  My t w o s u m m e r s a m o n g t h e St6:l6 fishers w e r e , in a w o r d , idyllic. For t h e most part I spent t h e w e e k e n d s alternating b e t w e e n sitting a l o n g side t h e river at C h e a m to braving t h e white w a t e r s of t h e Fraser C a n y o n , setting a n d c h e c k i n g nets. T h e s e a d v e n t u r e s w e r e b r o k e n u p by attending fisheries meetings at St6:l6 Nation a n d trips to libraries a n d archives. O n e of t h e highlights of m y s u m m e r o b s e r v i n g fishers - aside f r o m my near d e a t h experience in t h e c a n y o n - w a s t h e time I spent at G r a n d Chief A r c h i e Charles' dry rack c a m p in t h e c a n y o n . G r a n d Chief Charles, 8 3 in 2 0 0 2 w h e n I interviewed him at his c a n y o n dry rack c a m p , talked of his regular trips to t h e c a m p e a c h July for t h e last 5 8 years. He talked of t h e river closures that p r e v e n t e d his family f r o m fishing during t h e critical early/mid July period w h e n t h e c a n y o n conditions w e r e right for drying. Perhaps o n e of t h e things that m a d e my visit at his family's c a m p so  M y t h a n k s to Dr. Charles Menzies, my P h D advisor, for pointing m e in t h e direction of Dorothy Smith's call to 'problematize t h e everyday.' T h i s p a r a g r a p h borrows f r o m Dr. M e n z i e s ' adaptation of t h e analytic a p p r o a c h e s of Dorothy Smith a n d Linda T u h i w a i Smith. n  41  special w a s the c o m m e n t G r a n d Chief Charles m a d e u p o n r e a d i n g my research release f o r m . After reading over the page a n d signing the f o r m , he r e m a r k e d "It's about time." During my time spent along the river at C h e a m , I o b s e r v e d the activity a l o n g the b e a c h while e n g a g i n g in casual conversation with families fishing - c o n d u c t i n g formal interviews with s o m e . A s with the experience at C h e a m , while attending fisheries meetings, I w o u l d m o v e a r o u n d the room, introducing myself a n d chatting casually with t h o s e in a t t e n d a n c e . At times I w o u l d conduct formal interviews w i t h t h o s e having time to s p e n d with m e before leaving the meeting room. For the most part, my time in the meetings w a s spent o b s e r v i n g the interaction of fishers as attempts w e r e m a d e to force e v e r y o n e ' s a g e n d a into a fishing plan that w a s satisfactory to St6:l6 fishers a n d s o m e w h a t compatible with Fisheries a n d O c e a n s conservation needs. M o r e times than not, Fisheries' n e e d s w e r e discounted as valid for consideration. T h e specific actions on the part of St6:l6 fishers that I h a v e identified as r e s p o n s e s to fisheries regulations 'presented' t h e m s e l v e s to m e after I h a d spent a f e w m o n t h s in the field talking with St6:l6 fishers in different communities a n d after o b s e r v i n g the on g o i n g discussions that took place in the fisheries meetings c o m p o s e d of fisheries representatives from e a c h of the St6:l6 bands. It b e c a m e clear to me, that while for the most part, St6:l6 people simply w a n t e d to 'go fishing,' others h a d very clearly d e f i n e d a g e n d a s a n d n e e d s that defined their particular actions regarding fisheries regulation. In the case of C h e a m , the actions of t h o s e fishers h a v e b e e n front page n e w s for m a n y years. However, s o m e of the aspects of the a g e n d a s or n e e d s b e h i n d t h o s e actions w e r e less apparent. U p o n investigating the less visible aspects of  42  C h e a m ' s particular r e s p o n s e to fisheries regulation, it w a s clear I n e e d e d to e x a m i n e other actions that a p p e a r e d , on the surface, to be vastly different a n d counter to o n e a n o t h e r in a effort to gain insight into this fractured fishery. T h e particular r e s p o n s e s on w h i c h I focus provide insight not only into a fishery fractured by the regulations of the 1880s, but also by the varying w a y s t h r o u g h w h i c h St6:l6 fishers assert their Aboriginal right to fish. A s I've m e n t i o n e d previously, for most St6:l6 the typical a n d single most important form of a g e n c y is simply to go fishing. However, the three different responses o n w h i c h I f o c u s in this w o r k reflect not only the differing expressions of agency, but differing w a y s by w h i c h s o m e St6:l6 fishers w i s h to be identified. T h e s e identities stem from the experiences of the residential school system, the regulatory system that has essentially m a d e t h e m o u t l a w fishers a n d the e c o n o m i c system that s o m e s e e m willing to exploit as a m e a n s of g a r n e r i n g "legitimate" capital. T h e s e identities represent assertions of power as St6:l6 fishers s e e k to w o r k against t h o s e s a m e experiences. W h i l e o n the surface the ties that bind the r e s p o n s e s o n w h i c h I f o c u s m a y not be readily apparent, indeed, all three r e s p o n s e s are profoundly c o n n e c t e d . B a s e d on my conversations with St6:l6 fishers, all three r e s p o n s e s are c o n s i d e r e d by the St6:l6 fishers to be a n affirmation of the Aboriginal right to fish. All are said to be rooted in tradition a n d all w o r k to support a 'St6:l6' identity. Additionally e a c h r e s p o n s e provides a particular insight into the varying facets of a fractured fishery. More importantly, reflected are the r o u g h e d g e s of the fractured pieces that are often forced together. Identified are the fissures a l o n g w h i c h , as Sider notes, "identity is created, history is p r o d u c e d a n d h u m a n a g e n c y is r e v e a l e d (1993). During the s u m m e r of 2 0 0 2 , an inventory of St6:l6 fishing sites w a s c o n d u c t e d .  43  A s a result of that survey over o n e h u n d r e d fishing sites b e l o w the Fraser C a n y o n w e r e m a p p e d . My examination of r e s p o n s e s to fisheries regulation f o c u s e s on a r e a s included in that inventory as well as sites located in the c a n y o n . W h i l e there are correlations b e t w e e n the r e s p o n s e s I identify a n d the locations of the c o m m u n i t i e s a n d fishers o n the river, it w o u l d be too simple to make a direct correlation b e t w e e n sties a n d responses. C h e a m ' s location along the river d o e s indeed m a k e easier the implementation of their particular strategy of defiance. T h e fact that the railway runs t h r o u g h their reserve has b e e n a key factor in their ability to d r a w attention to fight for the Aboriginal right to fish. This w a s evident w h e n in 1993 u n d e r the direction of S a m Douglas, m e m b e r s of the community b l o c k a d e d the railway until the fishery w a s r e o p e n e d . W h e n examining the relationship b e t w e e n site a n d r e s p o n s e in regards to the Seabird Island community, a correlation is indeed evident. T h i s is c o m p o u n d e d by the fact that s o m e of the m e m b e r s of the Seabird Island community are related to m e m b e r s of the C h e a m community a n d C h e a m b a n d m e m b e r s also maintain fishing sites in the c a n y o n alongside Seabird Island members. C h e a m ' s r e s p o n s e to the c a n y o n fishery mirrors that of their fishery along river o n their reserve. Simply stated, they d o not c h e c k their militancy at the doorstep of the c a n y o n . A p p r o x i m a t e l y two thirds of the s a l m o n c a u g h t by St6:l6 fishers are c a u g h t in the c a n y o n ; a n d a large share of that two thirds is caught by Ken Malloway. T h e r e is no q u e s t i o n regarding the correlation b e t w e e n Ken Malloway's a c c e s s to the c a n y o n fishery a n d his ability to profit from that fishery. A l o n g these s a m e lines, there is little q u e s t i o n regarding the correlation b e t w e e n Lester Ned's gillnet operation b e l o w the Mission Bridge a n d his ability to turn a profit in the fishery. W h a t complicates the  44  notion of a direct correlation between site a n d r e s p o n s e is t h e i n t e r c o n n e c t e d n e s s of the St6:l6 community. T h e family connection b e t w e e n m e m b e r s of t h e C h e a m a n d t h e Seabird Island community is just o n e example of s u c h relationships. During t h e s u m m e r of 2 0 0 3 I w a t c h e d a s Lester Ned's s o n f i s h e d along t h e river at C h e a m , his s o n h a v i n g that a c c e s s t o t h e C h e a m b e a c h a s h i s mother w a s a m e m b e r of t h e D o u g l a s family of C h e a m . In that family connections provide a c c e s s to fishing spots, t h e fishing network afforded to fishers c a n be quite extensive. Therefore, a n a r r o w correlation b e t w e e n site a n d r e s p o n s e w o u l d limit t h e d i m e n s i o n of a n y discussion of r e s p o n s e s to fisheries regulation. The People of the River: Contemporary Times ...My history tells me that salmon is the reason I am here. We are salmon people. The history of the salmon in this part of the world is my own people's history. The salmon, and the Fraser River,define who we are. We take our name from the word that we give the river: St6:ld Our history tells us that at the beginning of the world, salmon was given to the St6:ldbyXa:ls, the creator and great Transformer. He taught us how to survive by maintaining a good relationship with salmon. He taught us how to fish for salmon, how to cook it, and how to look after it. (Ernie Crey, 1997 in You Are Asked to Witness, Keith T h o r C a r l s o n ed.) T h e H a l q ; e m e y l e m speaking tribes living a l o n g t h e lower 1 0 5 miles of t h e Fraser River took their n a m e Stalo or Sfd.Vdfrom t h e Halq;emeylem w o r d sta'lu m e a n i n g 'river' (Duff 1952:11). T o d a y , t h e peoples identified a s St6:l6 by Duff, c o n t i n u e to be collectively k n o w a s Sto.lo or River People. However, a s C a r l s o n ( 2 0 0 3 ) notes, w h e t h e r t h e term St6:l6 implies simple cultural similarity, social affiliations o r s o m e d e g r e e of political unity, is hotly d e b a t e d . A c c o r d i n g to Carlson, s o m e Aboriginal people r e g a r d t h e m e a n i n g b e h i n d t h e term St6:l6 a s a construct o f the W e s t e r n intellectual tradition, others "going s o f a r a s to dismiss t h e notion of a St6:l6 collective  45  identity a s a duplicitous fiction created by nefarious a c a d e m i c s a n d C a n a d i a n politicians t o facilitate t h e erasure of more traditional tribal - a n d settlement b a s e d f o r m s of identification a n d political authority" (2003:6). Still others r e g a r d St6:l6 identity a s " a n ancient a n d meaningful affiliation with particular relevance t o t h e c o n t e m p o r a r y racially c h a r g e d political situation" (Carlson 2003:6). In his discussion of St6:l6 political identity, Carlson notes that events of t h e late 19  th  century f o r c e d a rise in a s u p r a tribal St6:l6 identity (2003:41). A c c o r d i n g to  Carlson, this w a s not b e c a u s e of a n y past m a n d a t e f o r such collaboration, but w a s a function of necessity a s groups c a m e together to protest t h e b a n n i n g of t h e potlach a n d ever increasing fisheries regulations that w o r k e d to force Aboriginal p e o p l e s off t h e Fraser (2003:41). A s explained by Carlson, popular perceptions to t h e contrary, t h e history of Aboriginal collective identity is t h e story of a complicated p r o c e s s of c h a n g e , s h a p e d a s m u c h by internal divisions a s external forces (2003:42). T h i s concept is evident w h e n examining t h e collective identity of St6:l6 fishers. T w e n t i e t h century pressures - m a n y of those surrounding fisheries issues - forced t h e c o m i n g together of St6:l6 p e o p l e s a s a single political voice. T h e c o m i n g together o c c u r r e d in 1989 w h e n , in a n effort t o present o n e powerful voice, more than 5 0 representatives f r o m 16 St6:l6 communities g a t h e r e d a r o u n d a table in t h e Seabird Island c o m m u n i t y hall to plot a unified c o u r s e f o r St6:l6 f i s h e r m e n in the face of o n g o i n g conflict with t h e federal g o v e r n m e n t over Aboriginal fishing rights {Chilliwack Progress, M a y 3, 1989). This attempt at bringing t h e b a n d s together to a d d r e s s their c o n c e r n s in a n y kind of formal  46  unified entity d i d not prove s u c c e s s f u l .  12  A n o t h e r attempt resulted in the creation of the entity k n o w n as t h e St6:l6 Nation Society, representing a n aggregate population of a b o u t 6,000 souls identifying t h e m s e l v e s as S t 6 : l 6 .  13  T h i s newly created entity r e p r e s e n t e d a n a m a l g a m a t i o n of the  St6:l6 Tribal Council a n d St6:l6 Nation C a n a d a bringing together 19 of the original 2 4 H a l q ; e m e y l e m s p e a k i n g communities a l o n g the Fraser River. T h e s e b a n d s include:  Aitchelitz, Chawathil, Cheam, Kwantlen, Kwaw-kwaw-a-pilt, Shxw'ow'hamel,  Lakahahmen,  Matsqui,  Popkum, Scowlitz, Seabird Island, Skawahlook, Skowkale,  Soowahlie, Squiala, Sumas, Tzeachten and Yakweakwioose.  Skway,  T h e St6:l6 Nation Society  b e g a n negotiating with C a n a d a a n d British C o l u m b i a o n behalf of 17 of the 19 b a n d s represented.  14  A c c o r d i n g to K e w a n d Miller:  T r i b e s a r e umbrella organizations c o m p o s e d o f several culturally related bands. T h e y exist to create a n e c o n o m y of scale in providing services to b a n d members, to create a more powerful political p r e s e n c e in t h e province, a n d as a recognition of a c o m m o n nationality a m o n g the m e m b e r bands. In  W h e n I talked with K e n Malloway fairly recently a b o u t the possible dismantling of t h e St6:l6 Nation, h e d i s c u s s e d h o w a n attempt w a s m a d e in t h e late 1980s to bring St6:l6 people together in a unified body. He noted that it didn't w o r k t h e n a n d that m a n y of t h e problems existing at that time remain. 1 2  13  l t is this g r o u p that f o r m s t h e collective at t h e core of m y study.  l n July of 2 0 0 4 the St6:l6 Nation g o v e r n m e n t split into t w o rival g r o u p s . Eight of the nineteen St6:l6 b a n d s that m e r g e d in 1994 h a v e 'left the Nation' a n d h a v e f o r m e d t h e St6:l6 Tribal Society in a b i d t o control delivery of their o w n p r o g r a m s a n d services (Chilliwack Progress, July 2 7 , 2 0 0 4 ) . T h e s e eight b a n d s are the s a m e b a n d s that f o r m e d t h e St6:l6 Tribal Council, o n e of the intact groups m e r g i n g with St6:l6 Nation C a n a d a in 1994 to f o r m St6:l6 Nation Society. T h e eight b a n d s c o m p r i s e nearly sixty p e r c e n t of t h e total St6:l6 population. Initially t h e t w o t o p positions will b e filled by G r a n d Chief Clarence Pennier (from Scowlitz) a n d T y r o n e McNeil (from Seabird Island) w h o w e r e elected Y e w a l siyam a n d St6:l6 Siyam respectively in the D e c e m b e r 2 0 0 3 Nation-wide election. Scowlitz a n d Seabird Island being t w o of the eight departing b a n d s . T h e C h e a m Indian B a n d a n d t h e S k w a y First Nation a r e n o t participating in t h e treaty process. 14  47  this s e n s e , b a n d s a n d tribes are creations of contact with non-Natives. T h e largest of the tribes in the region is the St6:l6 Nation. (1999:59) In his discussion of Coast Salish tradition a n d law, Bruce Miller provides a detailed a n d c o m p r e h e n s i v e overview of the Nation as part of its function a s a tribe (2001). A s notes Bruce Miller, the St6:l6 Nation operates u n d e r a constitution a n d is o r g a n i z e d into a political a r m a n d a bureaucratic arm. T h e St6:l6 political a r m is c o m p o s e d of the Lalem Y e St6:l6 Sf:yam or H o u s e of R e s p e c t e d Leaders, the Lalem Y e S'i:yelyo:lexwa or House of Leaders a n d the H o u s e of Justice. T h e H o u s e of R e s p e c t e d Elders is the main political body with its m e m b e r s h i p b a s e d o n modified proportional representation; e a c h b a n d holding at least o n e representative, s o m e as m a n y as three. T h e representatives (chiefs) elect from a m o n g their g r o u p a five-person cabinet called the Special Chiefs' Council (SCC) w h i c h consists of o n e representative for e a c h bureaucratic department (or Portfolio) of the nation. T h e Chief's Representative, or St6:l6 Y e w a l Siyam, is the primary s p o k e s p e r s o n for the nation a n d is effectively the h e a d of state. T h e Y e w a l Siyam chairs the S C C a n d is directly a c c o u n t a b l e to the St6:l6 Special Chiefs. Fisheries issues fall u n d e r the purview of the Fisheries Portfolio a n d the direction of the Portfolio holder. However, it is erroraneous to a s s u m e the Fisheries Portfolio holder has any vested p o w e r or control over the St6:l6 fishery. A s d e s c r i b e d to me by Bob Hall, the Fisheries Portfolio holder in 2 0 0 2 w h e n I c o n d u c t e d my fieldwork, the job is o n e of facilitator. T h e H o u s e of Elders is c o m p o s e d of elders from every m e m b e r b a n d a n d is d e s i g n e d to function in the m a n n e r of the C a n a d i a n Senate. Elders are selected for their k n o w l e d g e of St6:l6 traditions a n d customs, so that, as Bruce Miller notes "St6:l6 w a y s of k n o w i n g a n d u n d e r s t a n d i n g are well represented by the actions of the St6:l6  48  government" ( M c M u l l e n 1998 in Miller 2 0 0 1 ) . T h e St6:l6 constitution stipulates that the H o u s e of Elders must a p p r o v e n e w laws. T h e St6:l6 Nation House of Justice comprises representatives f r o m t h e House of R e s p e c t e d L e a d e r s a n d t h e House of Elders a n d b e g a n functioning in 2 0 0 0 with t h e implementation of Qwi:qwelst6m, the conflict resolution p r o g r a m offering alternatives to t h e m a i n s t r e a m criminal a n d family court systems. It is t h r o u g h Qwi:qwelst6m a n d t h e H o u s e of Justice that resolution is to b e sought a s part of t h e Justice Protocol s i g n e d by S e a b i r d I s l a n d .  15  W h i l e t h e St6:l6 Nation represents t h e various St6:l6 b a n d s in treaty negotiations a n d administers many of t h e g o v e r n m e n t service p r o g r a m s d e s i g n e d to assist First Nations peoples, g o v e r n i n g powers rest within t h e individual Indian b a n d s f o r m e d u n d e r t h e auspicious of t h e Indian Act. Individual b a n d s elect a chief a n d council (Section 7 4 of t h e Indian A c t sets o u t elections p r o c e d u r e s ) w h o preside over b a n d g o v e r n a n c e a s well a s representing b a n d m e m b e r s h i p within t h e larger collective of t h e St6:l6 Nation. Bands hold formal recognition f r o m t h e federal a n d provincial g o v e r n m e n t s a n d a r e t h e entities that have title to a n y assets held in c o m m o n by First Nations ( K e w a n d Miller 1999:59). A case in point is t h e limited p o w e r of t h e St6:l6 Nation Fisheries Portfolio a s regulating St6:l6 fishers. T h e St6:l6 Nation Fisheries Portfolio provides t h e vehicle for collective negotiation with t h e federal g o v e r n m e n t for fishing opportunities however, individual b a n d s determine participation in t h e  l recently s p o k e with C l e m S e y m o u r at Seabird Island about t h e effects of t h e break u p of St6:l6 Nation o n t h e justice program within t h e Nation c h a r g e d with h a n d l i n g t h o s e c a s e s diverted from t h e courts. A c c o r d i n g to C l e m Seymour, c a s e s w o u l d still be referred to Qwi:qwelst6m. W h a t remains unclear, h o w e v e r is t h e effect of the break up o n t h e other areas of t h e structure d e s c r i b e d in this section. 15  49  opportunities. G o v e r n a n c e of the fisheries remains in the h a n d s of the federal government.  The People of the River: Antiquity and Ethnography T h i s c o m p l e x relationship between the river, its salmon resource a n d the St6:l6 p e o p l e has b e e n o b s e r v e d a n d described by ethnographers, archaeologists a n d historians. E t h n o g r a p h i c a n d historic a c c o u n t s d e s c r i b e the large n u m b e r s of Indians traveling to the c a n y o n e a c h year following s e a s o n a l s a l m o n runs ( C r o s b y 1907; Duff 1952; Fort Langley Journal 1827; Lamb 1966). T h e importance of Fraser River salmon as a primary f o o d source is borne out in studies revealing high concentrations of Pacific s a l m o n protein in t h e diet of C o a s t Salish Indians ( C h i s h o l m 1983; H e w e s 1947; K e w 1976). T h i s importance is reflected linguistically with as m a n y as o n e h u n d r e d a n d forty s e v e n w o r d s in the Halq;emeylem l a n g u a g e covering m e t h o d s of catching a n d p r o c e s s i n g fish having b e e n identified (Galloway 1993:587). Myths, legends a n d c e r e m o n i e s illustrate the role of s a l m o n in Sto.lo c o s m o l o g y (e.g. A m o s s 1987; B o a s 1 8 9 1 , 1895; C o d e r e 1948; Duff 1950, 1952; Hill-Tout 1902, 1904; L e r m a n 1976; Teit 1917). S a l m o n as a commodity of e x c h a n g e in affinal relationships a n d formal trade a r r a n g e m e n t s is illustrated in the ethnographic a n d historic a c c o u n t s a n d s u p p o r t e d to s o m e extent by t h e a r c h a e o l o g y of t h e a r e a (e.g. C a r l s o n , R o y 1994; Duff 1 9 5 2 ; C r o s b y 1907; H u d s o n 1993; Fort Langley Journal 1827; K e w a n d Griggs 1 9 9 1 ; L a m b 1966; M c M u l l i a n 1988; M e g g s 1 9 9 1 ; Smith 1950; Suttles 1987, 1960; Teit 1900; W a r e 1977, 1983). R e g a r d i n g t h e antiquity of t h e area, B o r d e n writes that t h e prehistory of t h e A m e r i c a s is the history of the Indian peoples prior to the a d v e n t of E u r o p e a n s (1968:9).  50  Noting further: ...the first w h i t e s to visit the S t a l e . . . w e r e the Spaniards, probably c o m p a n i o n s of J u a n de F u c a , w h o explored this part of the coast in 1592 ( S w a n t o n 1953:600 in B o r d e n 1968). T w o centuries later, 1792, Captain G e o r g e V a n c o u v e r charted the shore of Burrard Inlet. But the first white m e n .... to c o m e into intimate contact with the Indian people a l o n g their route w e r e S i m o n Fraser a n d his crew...the year w a s 1808. ( B o r d e n 1968:9) B e g i n n i n g with the archaeological explorations of Hill-Tout a n d L a z e n b y in 1894 a n d continuing since the 1950s with the w o r k of Borden, Duff, Kidd a n d others, the extent, time d e p t h , complexity a n d intensity of Indian land use a n d o c c u p a t i o n of the U p p e r St6:l6 a r e a has b e e n d o c u m e n t e d (Borden 1968, 1970, 1975; Mitchell 1963, 1965, 1 9 7 1 ; Irvine 1973). In the upper Fraser Valley, Native o c c u p a n c y a s long a g o as 9,000 to 10,000 years is established by the archaeological record ( B o r d e n 1975). T h e ancient b e g i n n i n g s of people in British C o l u m b i a is further noted in M o h s ' s u m m a r y of sites in the vicinity of Y a l e (1990). This includes evidence of o n e of the oldest habitation structures ever f o u n d in British C o l u m b i a dated b e t w e e n 4 , 0 0 0 to 5,000 y e a r s old a n d the structural remains of another feature f o u n d in conjunction with s a l m o n vertebrae d a t e d to about 6 2 h u n d r e d years a g o (Eldridge 1981 a n d LeClair 1976). Additional e v i d e n c e of antiquity is f o u n d in St6:l6 legends a n d folklore.  Stories  of ancient occupation h a v e b e e n noted by several e t h n o g r a p h e r s a n d anthropologists. St6:l6 belief in their ancient ancestry is consistently noted (Boas 1895; Duff 1950, HillT o u t 1902, 1904; J e n n e s s 1934/35; Lerman 1976; Smith 1947; W e l l s 1987).  Early  a c c o u n t s w e r e first o b s e r v e d a r o u n d the turn of the century (Boas 1895; Hill-Tout 1904). Boas d e s c r i b e d the creation of the first ancestors at the sites of the old tribal villages a s told to him by Chief G e o r g e Chehalis (Mohs 1990). In this account, the  51  St6:l6 deity Xa:ls is said to have created and/or transformed St6:l6 tribal ancestors at S o u t h Y a l e , Chehalis, Harrison Lake, Matsqui, L a k a h a h m e n , Chilliwack, Agassiz, Scowlitz, P o p k u m , Ohamil a n d Yale (described in detail in M o h s 1990). Other early a c c o u n t s recall ancestors of t h e Scowlitz a s d e s c e n d i n g f r o m t h e sky or transformed f r o m fish in t h e river. For example, Hill-Tout recounts t h e story: T h e o l d time Scowlitz w e r e divided into three septs, e a c h of w h i c h w a s believed to h a v e h a d a different a n d distinct origin. T w o of t h e s e w e r e tel sweyil 'sky born'; t h e third w a s d e s c e n d e d f r o m t h e Sturgeon of t h e o l d days...the only old m a n n o w left a m o n g t h e m , claims to be d e s c e n d e d f r o m t h e first Scowlitz m a n , w h o w a s called Sumqeameltq. He c a m e d o w n from t h e sky, bringing with him in his a r m s t w o animal-like beings called Skaiaq a n d Cwometsel, Mink a n d Otter. ( M a u d 1978:148) A similar story is f o u n d regarding t h e Chehalis w h o w e r e t r a n s f o r m e d f r o m t h e fish in the river ( M a u d 1982:151). Other e v i d e n c e of antiquity is f o u n d in t h e stories relating o c c u p a t i o n prior to g e o g r a p h i c a n d geological events such as t h e 'Flood Story' (e.g. Duff 1950; J e n n e s s 1934/5; Hill-Tout 1902; L e r m a n 1976; W e l l s 1987). Stories d e s c r i b e o c c u p a t i o n at a time before rivers w e r e free flowing a n d 'there w a s s a l m o n in t h e Fraser River.' T h e s e stories coincide t o s o m e extent with d o c u m e n t e d geological activities of ancient chronology. A r c h a e o l o g i c a l accounts indicate t h e Fraser b e c a m e a free-flowing river, b e t w e e n 10,000 a n d 12,000 years a g o a n d salmon h a v e b e e n a s c e n d i n g t h e river system for t h e past 7,000 to 9,000 years a g o (Borden 1968; C a r l s o n 1983; Fladmark 1975). V e r y early e t h n o g r a p h i c sketches of Coast Salish peoples, of w h i c h t h e St6:l6 belong, include t h e w o r k s of Boas (1889, 1890, 1 8 9 1 , 1894, 1 8 9 5 a , 1895b, 1895c) a n d Hill-Tout(1902). In t h e early 1950s, W a y n e Suttles a n d W i l s o n Duff closely e x a m i n e d  52  Coast Salish life-ways with Suttles f o c u s i n g o n t h e Lummi of w e s t e r n W a s h i n g t o n state a n d Duff o n t h e upper St6:l6. Duff's ethnography, The Upper Stalo Indians, published in 1 9 5 2 provides detailed information regarding upper St6:l6 history, village, place n a m e s , archaeological sites, material culture, fishing, hunting, social order, family times, kinship terminology, marriage customs; nearly every aspect of St6:l6 life. Notes Duff, t h e St6:l6 w e r e divided into a considerable n u m b e r of local g r o u p s or 'tribes,' e a c h of w h i c h claimed a stretch of river-bank or a n important tributary (1952:19). A c c o r d i n g to Duff, t h e socio-political units into w h i c h t h e U p p e r Stalo w e r e divided included t h e e x t e n d e d family, t h e village, a n d t h e 'tribe.' Extended family relationships w e r e important, carrying with t h e m access rights to resources a n d responsibilities t o w a r d s t h o s e resources. Villages varied in size, m a d e u p of o n e to several e x t e n d e d families. St6:l6 tribes consisted of groups of villages w h i c h h a d c o m e to b e thought of as units to t h e extent that they w e r e given n a m e s (Duff 1952:86). Strength of tribal identify varied a m o n g t h e g r o u p s in t h e territory with s o m e of t h e tribes h a v i n g a clearly d e f i n e d tribal identity. However, most of t h e evidence s u g g e s t s that t h e concept of a tribal unit w a s neither clearly defined nor important in t h e Native mind, rather, Stalo tribes w e r e n a m e d clusters of villages g r o u p e d by outsiders for descriptive p u r p o s e s (Duff 1952:87). T h e concept of b a n d identity w a s reinforced with t h e creation of reserves. T h e notion that b a n d identity is a product of t h e creation of reserves a n d t h e implementation of t h e Indian A c t s e e m s to b e held by many of t h e St6:l6 with w h o m I s p o k e . A s o n e individual with w h o m I s p o k e explained: It's hard to u s e t h e concept of "my b a n d " b e c a u s e this w a s all o u r living room here, f r o m o n e e n d of t h e river to t h e other b e c a u s e w e ' r e 53  back a n d forth hunting a n d fishing, traveled different places. T h e r e ' s no "mine" it's all "ours" T h e designation of b a n d s w a s a E u r o p e a n concept. (Sto: 16 fisher f r o m Shxw'ow'hamel) Others e x p l a i n e d to m e that identification w a s with family first a b o v e b a n d . This notion figures into t h e discussion in chapter 6 regarding w e a l t h a c c u m u l a t i o n a s a product of the Pilot Sale A r r a n g e m e n t . Evident in that discussion is t h e responsibility of, a n d to family m e m b e r s a s regards t h e fishery. Fishers with w h o m I spoke, t a l k e d of t h e responsibility to family first over b a n d , mentioning that family m e m b e r s h i p transected b a n d m e m b e r s h i p . This e m p h a s i s o n family is clearly visible in t h e c h a p t e r 6 c a s e study regarding t h e highliners a n d m o n e y m a k e r s a s well a s in regards t o t h e c a s e studies in chapters 4 a n d 5. In chapter four's c a s e study regarding t h e C h e a m , t h e notion of a collective b a n d identity is a d v a n c e d a s a particular " m e a n s to a n e n d " : warriors in a battle for t h e right t o fish. T h e family constitutes o n e c o r p o r a t e / e c o n o m i c unit, a n o t h e r being t h e simple employer/employee relationship e s t a b l i s h e d outside t h e family. In all regards, a s e n s e of community responsibility, aside f r o m t h e simple public p e r s o n a , strongly exists. A s regards t h e Seabird Island c a s e study in c h a p t e r 5, individual families constitute t h e core corporate/economic unit. T h e particular history regarding t h e formation of t h e Seabird Island reserve serves to provide a n additional d i m e n s i o n to t h e family/band dichotomy a s t h e initial Seabird c o m m u n i t y included individuals relocated from s u r r o u n d i n g Sto: 16 a n d N'laka'pamux communities. A s with any Sto: 16 community, family ties stretch across b a n d a n d c o m m u n i t y lines. T h e importance of family a n d family ties essential to m y discussion of t h e St6:l6 is d i s c u s s e d by Suttles in his examination of Coast Salish life p u b l i s h e d contemporarily with Duff's work. Similarly to Duff, Suttles describes Coast Salish organization a s  54  consisting of four levels of discrete units: families, e a c h o c c u p y i n g its o w n section of a c e d a r - p l a n k h o u s e a n d maintaining its o w n domestic e c o n o m y ; h o u s e g r o u p s , e a c h c o m p o s e d of several families (related either through males or f e m a l e s ) o c c u p y i n g a p l a n k - h o u s e a n d co-operating a s hosts of feasts a n d other c e r e m o n i e s ; villages, e a c h c o m p o s e d of a g r o u p of such h o u s e s o c c u p y i n g a short stretch of b e a c h o r river a n d s h a r i n g a c o m m o n n a m e a n d identification with territory; tribes, generally c o m p o s e d of several villages o c c u p y i n g a longer stretch of shoreline or a d r a i n a g e a r e a a n d sharing a c o m m o n n a m e a n d , a n d to s o m e extent, f o r m s of s p e e c h , subsistence methods, a n d ceremonial p r o c e d u r e s (1963:513). Suttles identifies a specific form of social organization or property holding kin-group. It w a s this g r o u p or its h e a d , rather t h a n a n y of t h e residential groups, that o w n e d t h e most important ceremonial rights a n d the most productive natural resources: fishing sites (1963:513). Both Duff a n d Suttles discuss t h e concept of social rank a m o n g t h e Coast Salish. A c c o r d i n g to Duff, social rank a m o n g t h e U p p e r Stalo is m e a s u r e d in terms of respect. Duff n o t e s that individuals a n d families differed in social r a n k b e c a u s e they differed in t h e d e g r e e to w h i c h they p o s s e s s e d t h e qualities w h i c h w e r e a d m i r e d a n d r e s p e c t e d (1952:80). E d m u n d Lorenzetto (E.L.) recalled to Duff h o w these qualities d e t e r m i n e d t h e designation of S i y a m A siya:m w a s a g o o d m a n w h o t a l k e d t o his p e o p l e t o k e e p t h e m straight a n d to settle rows. He didn't really boss t h e people around....but all t h e p e o p l e w o u l d take his advice. He talked to t h e people, telling t h e m w h a t they s h o u l d do, w h e n they should g o hunting o r fishing, a n d t h e d i d it. H e h a d to be a g o o d hunter a n d f i s h e r m a n himself to be a leader. T h e r e might be more t h a n o n e siya.m at a place....(1952:80) Siya:m w e r e usually of upper-class lineage, having h a d a c c e s s t o special training d u e to their high-class status. T h e y a s s u m e d roles of leadership in t h e c o m m u n i t y a s p r e 55  contact St6:l6 society h a d no 'chiefs.' A chief w a s the o n e a p p o i n t e d by the Indian Superintendent to conduct the affairs of a reserve (Duff 1952:81).  A s well, in his  d i s c u s s i o n of social r a n k in C o a s t Salish society, Suttles c o m m e n t s o n t h e existence of a c l a s s e d society. A c c o r d i n g to Suttles, within most communities there s e e m to h a v e b e e n three distinct social classes - a majority identified as "high class," a s o m e w h a t smaller group identified a s "low class," a n d a still smaller class often o c c u p y i n g its o w n section of the c o m m u n i t y (1987:17, originally published in a p a p e r delivered in 1959). A s notes Suttles, this lower class consisted of people w h o "had lost their history" a n d h e n c e p e o p l e w h o h a d no claim to the most productive resources of the areas, s u c h as fishing sites. This w a s reiterated by S o n n y McHalsie in an interview with Bruce Miller in 1995 a n d to m e in my conversations with St6:l6 fishers. In my c o n v e r s a t i o n s with Ken Malloway, Suttles' a n d D u f f s description of the existence of three distinct classes w a s m e n t i o n e d in regards to the fishery. Ken Malloway n o t e d to m e o n more t h a n o n e o c c a s i o n that the fact that s o m e c o n t e m p o r a r y St6:l6 fishers h a d g a i n e d s o m e measure of w e a l t h f r o m the s a l m o n fishery w a s simply a reflection of a past class system that existed prior to white settlement. In his discussion of resource ownership, Duff notes that exclusive tribal or village o w n e r s h i p of resource areas w a s practically u n k n o w n to the Upper Sto:Id except for the c a s e of s a l m o n dip-net stations. T h e s e stations w e r e located predominantly in the lower c a n y o n a b o v e Y a l e a n d w e r e actually rocky points in t h e c a n y o n w a l l t h e a l o n g the water's e d g e . Natural or m a n - m a d e , these fishing platforms w e r e n a m e d a n d family o w n e d . Duff writes that:  56  The usual pattern was for the 'owner' and his sons and younger brothers to use the station together. Under his leadership they built, rebuilt or kept in repair the drying-rack that went with the station, and each was allotted a number of poles on the rack from which to hand his fish to dry. The dip-net was usually made and owned by the owner of the station, who left it at the water's edge for the others to use....(1952:77) Though dip-net stations were 'owned,' use was extended to anyone who could claim the right through kinship as designated by 'names.' For the most part, the stations in the lower canyon were owned by families in the nearby villages, however, kinship webs could bring fishers claiming rights to the station from as far away as Musqueam and Vancouver Island. These 'kinship webs' were formed through intervillage marriage alliances, thereby expanding hereditary access the canyon fishing sites. Drawing on Suttles' work, Carlson and Eustace describe how access to resource sites were procured through marriage when speaking specifically of the St6:l6: Among the most highly valued inherited privileges, and one that undoubtedly motivated many marriages among upper class families, were rights of access to special resource gathering places such as lower Fraser canyon fishing sites... After the initial exchange of material wealth (blankets, canoes, jewelry, slaves) came the exchange of hereditary privileges. Either the bride or groom, or both, were called out individually by their new parents-in-law and told of their new privileges... Names served as a means of tracing access rights. At a wedding, for example, the name the bride or groom inherited for their children, through their in-laws, would formerly have belonged to a deceased relative recognized as having hereditary rights to a lower canyon fishing spot. A 'speaker' hired on behalf of the family would explain which rights accompanied the name. The more genealogical detail the speaker provided, the greater the legitimacy of the privileges associated with the name. In this way, the new namesake acquired the rights associated with the name. Such names did not necessarily imply site ownership, but they did secure rights of preferred access. These rights were extended to all children and extended relatives resulting from the marriage union...for as long as the marriage endured. (Carlson and Eustace, draft 1997: 9-10)  57  K n o w i n g o n e ' s ancestors w a s vital to demonstrating o n e ' s claim to family o w n e d fishing sites. K n o w i n g one's ancestry meant k n o w i n g t h o s e sites to w h i c h one's n a m e s w h e r e a t t a c h e d . S o n n y McHalsie describes the system of a c c e s s t h r o u g h n a m e s as e x p l a i n e d by Carlson a n d Eustace: Family names, individual n a m e s a n d different n a m e s h a d a ranking to either u p p e r class, middle class a n d lower class. T h o s e n a m e s w e r e a t t a c h e d to the land. W h e n y o u got a n a m e y o u h a d to e a r n that name.... T h e n attached to that n a m e w o u l d be a resource b e c a u s e f r o m that n a m e e v e r y o n e w o u l d k n o w from the n a m e that y o u carried w h e r e y o u could fish for instance, w h e r e y o u could pick berries...(1995:6-7) However, a c c e s s t h r o u g h n a m e s did not m e a n exclusive use a s other m e m b e r s of the e x t e n d e d family h a d n a m e s that w e r e attached to the g r o u n d a s well. A g a i n , S o n n y M c H a l s i e notes: ....it's not like just there's only a f e w n a m e s like y o u can't g o to o n e fishing spot a n d say, " W e l l for this fishing spot the p e r s o n that carries this o n e n a m e is the only p e r s o n that c a n fish here." (1995:7) Excerpts f r o m D u f f s field n o t e b o o k s  16  describe the o w n e r s h i p of c a n y o n fishing rocks  a n d fishing g r o u n d s . "Rocks w e r e o w n e d by people from all over the place. Every fishing rock h a d a name; every fishing g r o u n d h a d a name" ( B o o k 5). In his analysis of St6:l6 collective identity, Carlson (2003) d i s c u s s e s the role of the e x t e n d e d family in e c o n o m i c relations traces settlement patterns, d r a w i n g on Suttles' w o r k regarding regional networks that linked settlements a s a m e a n s of procuring f o o d s a n d dealing with times of resource scarcity. C a r l s o n notes Suttles' identification of the family as the core corporate/economic unit. C a r l s o n writes that  N o t e b o o k s 2-6 w e r e u s e d in this section regarding fishing sites a n d fishing t e c h n i q u e s . T h e s e n o t e b o o k s reflect conversations with Patrick Charlie a n d Robert J o e (Books 2 & 3), Patrick Charlie, A u g u s t Jack, Mr. a n d Mrs. E d m u n d Lorenzetto, Harry J o s e p h ( B o o k 4 ) a n d Mr. a n d Mrs. E d m u n d Lorenzetto (Books 5 & 6 ) . 16  58  "according to Suttles, neither the village nor the tribe h a v e necessarily ever b e e n the most important collective units" (2003:56). Rather it w a s the family/kin group, or its h e a d that o w n e d the most important ceremonial rights a n d the most productive natural resources (Carlson 2 0 0 3 : 5 6 f r o m Suttles 1987:210). Suttles' description of Coast Salish resource o w n e r s h i p a n d family control of resources supports D u f f s observations of resource o w n e r s h i p a n d control a m o n g the St6:l6. Suttles' a n d D u f f s analysis of St6:l6 resource e c o n o m i c s form the basis of the a r g u m e n t a d v a n c e d by s o m e St6:l6 fishers a n d c o u n t e r e d by others in r e s p o n s e to fisheries regulation as f o u n d in the discussions that follow. In the chapters immediately following, I focus o n the early years of fisheries regulations a n d the historical circumstances contributing to regulation as well as the roles of the courts regarding the Aboriginal right to fish. A s I continue in my discussion of the fisheries I d e s c r i b e the c h a n g e s that resulted f r o m the implementation of a n e w Aboriginal fisheries strategy in 1992 a n d h o w that "strategy" has contributed to s o m e t h i n g just short of a b r e a k d o w n in the systems that regulated the fishery as d e s c r i b e d by Suttles a n d Duff. How, as o n e C h e a m b a n d m e m b e r noted to me, the D F O c a m e to be Siya:m .  59  Chapter Two: History, Regulation and Resistance "We start when we are kids. We learn how to fish because that's where our parents and grandparents lived, in the camps, in the houses up there in the canyon and even down here. We made our own home, had our own fishing sites, family owned. In the summer the whole family would go to Yale to dry and can and salt salmon. Learning how to fish is like going to school. You go there, first you learn to start packing nets around, then after you're old enough you start setting 'em, after a while you start checking 'em and packing the fish out. The pretty soon you're doing it on your own." (St6:l6 fisher from Shxw'ow'hamel) In his o v e r v i e w of the industrialization of the Pacific Coast s a l m o n fishery a n d w h a t h e calls t h e "legal capture" of the salmon in British C o l u m b i a , D o u g l a s Harris d r a w s o n t h e w o r k of E d w a r d Said to explain h o w that legal c a p t u r e w a s m a d e possible. Notes Harris: In territories claimed f o r the British Crown, particularly t h o s e that b e c a m e settler colonies, establishing English law w a s essential to t h e colonial project. W h e r e necessary, E u r o p e a n colonial p o w e r s used other, blunter instruments of force, including g u n b o a t s a n d infantry, to secure control but it w a s not only violence that s e c u r e d t h e E u r o p e a n position. Less obviously s o u r c e s o f power, t h e n u m e r o u s cultural a s s u m p t i o n s a b o u t family, dress, language, work, a n d t h e apparently m u n d a n e details of ordinary life r e p r o d u c e d particular hierarchical relations b e t w e e n colonial rulers a n d subjects. E d w a r d Said, in his immensely influential study Orientalism, m a n a g e d to portray t h e 'formidable structure of cultural domination' that e n v e l o p e d t h e W e s t ' s relationship with t h e Middle East. It w a s this cultural d o m i n a t i o n - t h e ability to n a m e , to label, to categorize a n o t h r - that p e r m e a t e d t h e relationship..,. Culture w a s not, in Said's study, 'merely decorative or "superstructural,"' but a s o u r c e of great a n d u n d e r - e x a m i n e d p o w e r in t h e W e s t ' s relationship with t h e East. (2001:187-8) Said could h a v e very easily b e e n writing about t h e relationship b e t w e e n t h e British C r o w n a n d t h e First Peoples of British C o l u m b i a , a c o m p a r i s o n s o aptly m a d e by Harris. W h i l e Aboriginal peoples have u s e d this created Indian other a s a m e a n s of 'holding o n ' in t h e face o f the n u m e r o u s c h a n g e s to their w a y of life, it w a s b y w a y of this Indian other that first Colonial g o v e r n o r s a n d eventually D o m i n i o n lawmakers w e r e  60  able to "legally capture" the salmon resource of British C o l u m b i a a n d s u b s e q u e n t l y regulate Indian fishers to the e c o n o m i c margins. This is evident in the o p e n i n g p a r a g r a p h s of a G e r a l d Howard's 1944 report p r e p a r e d for the International Pacific S a l m o n Fisheries C o m m i s s i o n in N e w Westminster, BC. W r i t e s H o w a r d : O n e portion of the total run consists of the valuable c o m m e r c i a l fishery a n d also the relatively less important Indian fishery. In e a c h y e a r the n u m b e r o f f i s h t a k e n by the Indians is actually m u c h smaller t h a n either the n u m b e r c a u g h t by the commercial fishery or the n u m b e r e s c a p i n g to the s p a w n i n g g r o u n d s . However, as it b e c o m e s necessary to give the small a n d nearly extinct race the protection required for their rehabilitation, representative statistics for the Indian fishery must be available if regulation of the commercial fishery is to be carried out intelligently. (1944:65) Undoubtedly, St6:l6 society w a s significantly c h a n g e d by the c o m i n g of w h i t e s to the region. In addition to the fact that white diseases had r e d u c e d village populations long before the first white explorers, trappers, miners, fishers or missionaries visited the Fraser Valley, impacts on the natural resources of the region - in particular the s a l m o n p r o v e d devastating. By this time, d i s e a s e had already significantly r e d u c e d Native populations. M i n i n g activities, settlements, railway construction a n d the introduction of commercial c a n n e r i e s on the Fraser severely infringed on the Aboriginal fishery. In this section I discuss the c h a n g e s experienced by the St6:l6 people a s a result of the influx of w h i t e s into the region. I focus primarily on the growth of c a n n e r y operations in British C o l u m b i a that resulted in various regulatory actions directed at Sto: Id fishers. Historical Preview Most B.C. Indian societies, including the St6:l6, never s i g n e d treaties with the federal g o v e r n m e n t a n d in e s s e n c e never relinquished their claim over the land a n d resources. Control a n d m a n a g e m e n t of the land, rivers, a n d their resources remain, for all t h e s e First Nations peoples, the responsibility of Indian leaders a n d people. 61  Notes  Newell: For thousands of years before Europeans arrived, Indian economies on the Pacific slope centred on marine resources; the sea and coastal rivers were at least as important as the land. There were regular, prolific salmon migrations into fresh-water areas of very Aboriginal society...Aboriginal peoples harvested prodigious quantities of local resources, especially salmon, which they processed and used for personal consumption, trade, and ceremony. Such well-managed enterprises allowed them to support a pre-epidemic population numbering in the hundreds of thousands without destroying the fishery resource. (1993:3) The St6:l6 had extremely effective fisheries strategies in operation when, in 1793, Alexander MacKenzie made his way to the coast in the first overland expedition. These strategies were noted more than fifteen years later, in 1808, by Simon Fraser, after establishing posts at McLeod Lake, Fraser Lake and the south end of Stuart Lake, made his journey down the river later named for him. By 1827 the Hudson's Bay Company post at Fort Langley on the Fraser River was established relying heavily on the fishing expertise of the nearby Indians (Fort Langley Journal 1827/30; Morton 1989). These posts, and others in the region, were the major centers of the fur trade in the area named New Caledonia as well as major centers of trade for the Indians of the region. The fur trade clearly brought change to the Indians of the region, yet it was change that the Indians directed and therefore their culture remained intact (Fisher 1992:47). Through inter-marriage between Sto:Id women and the HBC employees posted at the Fort in Langley, the St6:l6 were able to control many aspects of the Fort's economy (Carlson 1997, Fisher 1992). Beginning around 1829, St6:l6 fishers became the backbone of a major cured fish industry at Fort Langley. Recognizing the expertise of the Indian fishers, HBC employees relied on the St6:l6 to provide the vast quantities of salmon necessary to  62  maintain the n e w industry. S a l m o n , procured from St6:l6 fishers, w a s p r o c e s s e d for export (Carlson 1997, Fisher 1992, Fort Langley Journal 1827/30). T h r e e p e r m a n e n t H B C salting stations w e r e established on the Fraser River w h e r e b y Indian fishers w o u l d "sell" f r e s h salmon to be p r o c e s s e d for shipment to the S a n d w i c h Islands (FLJ 1827/30, Morton 1989). By the late 1850s the discovery of gold a l o n g the Fraser River brought a n ever greater n u m b e r of white miners a n d settlers into the a r e a a l o n g with a c h a n g e in the Indian/white relationship in the Fraser Valley. T h e discovery of gold a l o n g the Fraser River in 1858 not only s a w a n e n d to the fur trade industry but also a n e n d to the cooperative relationship b e t w e e n the newly arrived white population a n d the Indian p e o p l e s of the region. From the beginning there w a s violence b e t w e e n the miners a n d the Indians. T h e influx of miners into the region adversely affected the St6:l6 fishery. Indians a n d miners vied for the use of the waterway, the Indians for their traditional fishery a n d the miners for their alluvial gold mining as literally d o z e n s of creeks w e r e diverted into scores of m a n m a d e ditches for transporting w a t e r (Carlson a n d Eustace 1997). Further affected w e r e traditional St6:l6 fishing sites. Carlson a n d Eustace note the existence of two placer mining c o m p a n i e s directly on fishing sites as s h o w n o n the Indian S u p e r i n t e n d e n t Vowell's 1906 map of Yale fishing sites. Both V a n z a n d t Hydraulic Mining a n d Y a l e Placer Hydraulic Mining h a d twenty y e a r leases to mine at fishing sites w h i c h h a d b e e n recognized a n d reserved by the federal g o v e r n m e n t (Carlson a n d Eustace 1997). Duff notes that the richest gold-bearing bars on the Fraser w e r e f o u n d b e t w e e n H o p e a n d Y a l e (1952:41). Indians p a n n e d gold t h e m s e l v e s or w o r k e d for the miners  63  for $ 2 to $ 4 a d a y a b a n d o n i n g their winter c a n y o n villages. Fisher notes: M a n y Indians w e r e caught by the m a n i a for gold, a n d s o m e probably n e g l e c t e d their traditional s u m m e r f o o d - g a t h e r i n g , either to mine or to provide ancillary services for the white miners....many Indians w e r e able to support t h e m s e l v e s a n d their families by b e c o m i n g w a g e earners. Others, however, obviously miscalculated their winter needs. T h e pressure of starvation f o r c e d s o m e Indians to steal f r o m E u r o p e a n s . Also, Indians of the c a n y o n , attracted by the possibility of trade a n d work, a b a n d o n e d their winter villages a n d b e g a n to congregate a r o u n d the mining towns. ( 1 9 9 4 : 1 0 1 ) W i t h the e x o d u s of miners from the region c a m e the arrival of white settlers. It w a s at this time that J a m e s D o u g l a s b e g a n an Indian policy on the m a i n l a n d that included the creation of Indian reserves. Douglas r e c o g n i z e d the Indian patterns of land a n d resource use a n d attempted to provide s o m e s e m b l a n c e of protection regarding a c c e s s to traditional fishing sites. W h i l e no treaties w e r e s i g n e d , tracts of land t h r o u g h o u t St6:l6 territory w e r e set aside as Indian reserves. However, Douglas' policy w o u l d be greatly altered in years following D o u g l a s ' retirement in 1864 w h e n J o s e p h T r u t c h b e g a n to reduce or eliminate the elements of D o u g l a s ' Indian policy that w e r e beneficial to Indians (Tennant 1992:39). Indian reserves c o n t i n u e d to be created w h e n British C o l u m b i a joined C a n a d a in 1871 a n d crucial decisions over the size a n d n u m b e r of reserves in the coastal a n d inland river areas c o n t i n u e d into the early twentieth century (Newell 1993:55). Contributing to the specific affects of settlement on Aboriginal p e o p l e s w a s the fact that Indians in British C o l u m b i a h a d a g r e e d to the small reserves allocated t h e m on the u n d e r s t a n d i n g that their rights to the fishery w e r e g u a r a n t e e d ( L a n e a n d Lane 1978, as q u o t e d in Pinkerton 1987:251 a n d Notzke 1994:45). A c r e a g e a n d location of reserve lands w e r e d e t e r m i n e d by joint Indian Reserve C o m m i s s i o n s operating f r o m 1876 to 1877, 1879 to 1880, 1880 to 1898 a n d by the joint Royal C o m m i s s i o n operating 64  f r o m 1913 to 1916 (Notzke 1 9 9 4 : 4 5 ) .  17  Federal officials w e r e c o n v i n c e d that Indians in  British C o l u m b i a did not require large reserves s u c h as t h o s e set aside in other provinces, as long a s Native fishing practices remain protected. For the St6:l6 Indians this protection of fishing rights w a s of paramount importance as they h a d already f a c e d significant reductions in reserve land holdings in 1868 w h e n u n d e r J o s e p h Trutch's direction all central Fraser Valley St6:l6 reserves w e r e officially r e s u r v e y e d resulting in a significant reduction in the land base. T h i s reduction a m o u n t e d to ninety-one percent of the St6:l6 reserve land base being alienated from their control (Carlson 1 9 9 7 ) .  18  The Growth of British Columbia Canneries and the Industrialization of a Fishery W h e n British C o l u m b i a joined C a n a d a in 1871 c h a n g e s in the Aboriginal fishery w e r e imminent as the first s a l m o n - c a n n i n g factory a p p e a r e d that s a m e year.  Initially  there w a s no g o v e r n m e n t regulation of any kind over Indian fishing (Newell 1993:46). W a r e refers to this period b e t w e e n 1858 a n d 1880 as a time of non-regulation a n d protection of Aboriginal rights with no restrictions (1983:12). A c c o r d i n g to Newell regulations w e r e minimal so as to allow growth of the s a l m o n - c a n n i n g industry (1993:46). T h e role of Indians in the growth of the s a l m o n - c a n n i n g industry w a s a c k n o w l e d g e d by the g o v e r n m e n t a n d regulations indicated in particular that Indians h a d the right to carry on their traditional fisheries (Newell 1993:46). In addition, a s participants in c a n n e r y operations Indian m e n a n d w o m e n o p e r a t e d the gill net fleets,  l n addition, Carlson a n d Eustace, The Lower Fraser Canyon Aboriginal Fishery: An Historical Analysis of Access and Control, (report p r e p a r e d for St6:l6 Nation 1997) d e s c r i b e the creation of c a n y o n fishing reserves. 17  K e i t h Carlson, in chapter 4 of You Are Asked to Witness, provides a table reflecting the size of St6:l6 reserves in 1864, the a m o u n t of land included in Trutch's 1868 reductions a n d the current reserve a c r e a g e in 1996 (1997:74). 18  65  a n d Indian w o m e n a n d children did most of the handling of raw fish (Newell 1993:47). T h e y e a r 1870 s a w the first commercial c a n n i n g of s a l m o n in British C o l u m b i a (Lyons 1969:142). C o n t i n u o u s c a n n i n g did not begin on the Fraser until 1 8 7 1 , w h e n A l e x a n d e r E w e n launched his operation a n d w e n t into production ( M e g g s 1991:20). A s M e g g s describes: In the first year, Ewen a n d his partners p r o d u c e d 3 0 0 c a s e s for export to the United K i n g d o m . Each c a s e held 100 o n e - p o u n d cans. After 1 8 7 1 , only 4 8 o n e - p o u n d cans w e r e placed in a case a n d a 4 8 - p o u n d c a s e b e c a m e the industry standard. (1991:20) Additional canneries w e r e o p e n e d such as the o n e by T.E. Ladner w h o established his first c a n n e r y o n the south bank of the Fraser near its mouth. In the t e n y e a r s following Ewen's first pack, n e w canneries w e r e established almost every year. A g a i n M e g g s describes: At the e n d of the decade, the province b o a s t e d e l e v e n canneries, including t e n o n the Fraser. T h e pack on the Fraser rose f r o m a f e w h u n d r e d c a s e s in 1870 to 4 2 , 1 5 5 in 1880 a n d 142,516 a y e a r later. (1991:22) By 1919 there w e r e 97 canneries on the coast from the Fraser River to the Nass River, o n V a n c o u v e r Island a n d in the Q u e e n Charlottes, e m p l o y i n g more t h a n 9,000 people, the majority of w h o m w e r e Indians a n d more that one-third of all s a l m o n f i s h e r m e n w e r e Indians ( P e a r s e 1982:151). Initially, Native fishers d o m i n a t e d the c a n n e r y labor force as the majority of early gillnetters w e r e Native people, hired on a daily basis to fish c a n n e r y boats ( M e g g s 1991:22). M e g g s notes, t h o u s a n d s of Native people w e r e d r a w n into c a n n e r y labor, as w o r k w a s available for the w h o l e family (1991:22). Ernie Crey told me h o w his older sister, Mary, h a d w o r k e d in the canneries. A r c h i v e d , oral histories m a k e mention of  66  St6:l6 p e o p l e traveling d o w n river to the canneries to work. After the turn of the century, Indian fishers h a d to struggle to maintain their position as J a p a n e s e fishers b e c a m e more active participants in the c a n n e r y fishery, especially on the Fraser River a n d V a n c o u v e r Island (Newell 1993, Souther 1993). Additionally, a c c o r d i n g to Newell: By 1913 Indian fishers w e r e a minority in the Fraser district: of the 2,359 licenses issued, 1,088 w e n t to J a p a n e s e , 832 to whites, a n d only 4 3 0 to Indians. (1993:85) Not only w e r e Indian fishers replaced by J a p a n e s e fishers, on the Fraser River J a p a n e s e w o m e n w e r e replacing Indian w o m e n on the c a n n i n g line (Newell 1993:85).  An Era of Regulation Emerges W h e n examining the implementation of fisheries regulations it is important to c o n s i d e r h o w regulation altered traditional e c o n o m i c patterns a n d h i n d e r e d the d e v e l o p m e n t of n e w ones. A s described by Newell, the s a l m o n c a n n i n g industry r e p r e s e n t e d a n e w e c o n o m i c opportunity compatible with traditional e c o n o m i c activities (1993:65). However, by the late 1880s Indians w e r e s e e n as a major obstacle to c a n n e r y profits a n d fisheries officials w e r e p r e s s e d by c a n n e r y o w n e r s to introduce n e w regulations to license the industrial fishery. Direct competition for fish b e t w e e n commercial c a n n e r s a n d Indian domestic fisheries w a s evident by the turn of the century (Notzke 1994:45). T a b l e 1 lists s o m e of the early regulations directly affecting the spiritual, social, a n d e c o n o m i c relationship b e t w e e n the St6:l6 p e o p l e a n d the Fraser River s a l m o n resource. Regulation d e s i g n e d to reduce the competition b e t w e e n Native fishers a n d c a n n e r y o w n e r s required Indians to acquire licences to fish commercially (only in tidal waters) but allowed t h e m the f r e e d o m to catch s a l m o n to f e e d themselves. T h i s policy  67  Table 1. Chronology of Fishery Regulation for the Province of British Columbia 1876  1878  1879  1888  1894  1908  1910  The Fisheries Act was made applicable to B.C. Allowed the federal Minister to licence or lease water to 'certain Indians' permitting them to fish for their own use. Fishing manner and timing could be specified and spearing could be permitted. The first Salmon Regulations for the Province of British Columbia were adopted by Order-in-Council. No reference was made to Indians. The Regulations restricted drift netting of salmon in tidal waters, limited the obstruction of rivers by nets and banned salmon fishing during specified weekend hours. A letter from the Minister of Alexander Anderson, the first B.C. Fishery Inspector, gave him authority to suspend the regulation for Indians. A general Fishery Regulation for Canada was adopted which prohibited salmon fishing without a lease or licence from the Department of Marine and Fisheries. New Regulation contained more comprehensive controls over salmon and trout fishing, including prescribed open and closed periods and methods of net fishing. The prohibition remained against net fishing without lease or licence, net fishing in fresh water and obstruction of more than one third of any river. Penalties were how provided for violation. The Indian food fishery was exempt from these Regulations and Indians were to 'at all times have liberty to fish for the purpose of providing food for themselves, but not for sale, barter or traffic by any means other than with drift nets or spearing.' New Regulation prescribed more detailed limits on net size, the use of seine nets and the fishing season. Introduced the distinction between 'commercial' and 'domestic' licences; Indians were prohibited said that 'Indians and take food fish without permit in any place from taking fish by spear, trap or pen on spawning grounds or fish any place reserved for fish propagation and were now subject to the close season. Indians could, with permission, use dip nets for food fishing. All net fishing without licence was prohibited and no net fishing could take place in fresh water. The clause in the 1894 Regulation which allowed Indian food fishing with permission was regulation of fish packing; and a catch reporting requirement, deleted. The only reference to Indians was a clause which required them to report the place, time, quantity and type of fish to the nearest fishery officer. The 1908 Regulations were replaced by the Special Fishery Regulations for the Province of British Columbia, which reintroduced the 1894 controls on the Indian fishery that had been rescinded in 1908 (requirements for permission for food fishery, etc.) One key change - Indians were not required to respect the closed season.  68  Table 1. Continued 1917  1925  1967  1981  1984  More restrictive in an effort to stop the sale of salmon caught under food fish permits. Established principles which are central to the regulation of the Indian food fishery from 1917 until 1977. Empowered inspectors to specify in the food fish permit the location, methods and timing of the fishery. An amendment to the Regulations added that anyone who bought a fish that was caught without permit in an area for which permits were not granted was guilty of an offense. The amendment said that the provision for Indian food fishing under permit applied even where there was a ban on fishing for salmon with commercial gear in the mouth of the Fraser during winter (Dec. 1 - March 31). The 'permit' of earlier regulation became a 'special licence.' Licensee required to carry the food fish licence while fishing in case of inspections. All salmon and steelhead taken under licence were to be marked by the licensee after capture by cutting off the end of the nose and dorsal fin. Gill nets and sets were to clearly display the licence number. It was specified that no person should buy or accept fish unless it was lawfully caught under a commercial licence. Complete revisions were made to the food fishing sections - key features: a food fishing licence could be issued to an Indian or Indian Band; the licence could specify the location, timing, species, quantities, gear and marking methods; the requirements for carrying the licence, marking the fish, identifying nets remained and the prohibition against selling or buying fish caught under food licence was strengthened. Another complete re-drafting of the food fishing provisions 'Indian food fish licence' was defined as 'a licence issued by the Minister to an Indian or a band for the sole purpose of obtaining food for that Indian and his family or the band.' The person fishing was required to produce on demand his licence, a copy of the band licence or band authorization. All nets were to be marked as specified and no one other than an Indian could 'have in his possession fish caught under the food fish licence.  Source: Indian Fishing Rights in British Columbia, Ferguson Gifford, March 18, 1989. c r e a t e d a separate f o o d fishery a m o n g the Aboriginal peoples w h e r e n o n e h a d existed in the past ( W a r e 1983). A s Newell describes: T h e Indian food-fishing regulation e q u a t e d Indian fisheries strictly with subsistence harvesting: 'Indians shall, at all times, Have liberty to fish for  69  the purpose of providing food for themselves but not for sale, barter or traffic, by any means other than with drift nets [floating net that drifts freely with the tide or current], or spearing.' This provision in theory capped production in the Aboriginal fisheries in order to reserve supplies for the fishing industry. (1993:62) It was under this regulation that 'the economic use of salmon by St6:l6 and other Aboriginal peoples was outlawed' (Glavin 1993). Again Newell explains: The Indian food-fishery regulation raised two separate but profound issues....First, it separated Indian harvesting and personal consumption offish from economic, social or cultural purposes... the distinction between fishing for food and fishing for any other purpose was foreign to Indian cultural and practice. Second, it separated production of resources from management of them, officially transferring all management of this crucial food and commercial resource from Indians to the state [the state in this case being the federal fisheries agency]. (1993:62) Subsequent regulation saw significant restrictions on Indian 'food fishing.' Offensives were launched against the use of weirs and fish dams, a permit system was established, attacks on Indian fisheries intensified, and attempts to abolish all nets and even attempts at a total prohibition of Fraser River Indian fishing were instituted (Ware 1983:12). As the needs of the canneries escalated, so did the restrictions on Indian fishing. Tables 2 and 3 summarize the direct effects of regulation on access to fisheries resources in the late 19 and early 20 centuries. th  th  Table 2. Fisheries Regulations Impacting Aboriginal Access to Fisheries Resource  1880 1904 1917 1919  Sale of "food fish" outlawed Fishing weirs banned on Skeena River Purchase of food fish banned Beach seines outlawed  Source: Souther, 1993 Phases 2 - 5 of Ware's chronological framework corresponds directly with Souther's list 70  of fisheries regulation. T a b l e 3 outlines W a r e ' s c h r o n o l o g y regarding fisheries regulations.  Table 3. Chronology of Governmental Regulation with Special Emphasis on the Fraser River Phase 2  1 8 5 8 - 1880s  Phase 3  Early 1880s-1892  Phase 4  1894 - 1 9 1 4  Phase 5  1 9 1 4 - 1922  Non-regulation of BC Indian fisheries. Protection of these Aboriginal rights with no restrictions. First attempt to separate Indian participation in the commercial fisheries from "food fishing." First regulatory clauses in Fisheries Act and BC Regulations. Early attempts to "administer" fishing laws against Indians. Significant regulation and restrictions of Indian "food fishing." Offensive launched on weirs and fish dams. "Permit system" established. Intensified attack on Indian fisheries. Attempts to abolish all nets; then attempts at total prohibition of Fraser River Indian fishing.  Source: Ware 1983 Indian peoples lost control a n d m a n a g e m e n t over the fisheries as n e w w a v e s of regulation w e r e continually introduced.  For the Sto:Id, c o m p l i a n c e with fisheries  regulations meant fishing in prescribed places at prescribed times with prescribed technology. T h e Indian fishery had already b e e n d e s i g n a t e d as strictly a 'food fishery' w h e n a w a v e of regulation b e t w e e n 1894 a n d 1914 o u t l a w e d specific, important t e c h n o l o g i e s such a s trawling, drifting or bag-netting; important fishing t e c h n o l o g i e s u s e d b e l o w the c a n y o n . T r a p s a n d weirs w e r e also o u t l a w e d in this w a v e of regulation as w a s the practice of 'torchlighting' (fishing at night). Set gill nets b e c a m e the only legal t e c h n i q u e b e t w e e n the delta a n d the c a n y o n areas as this t e c h n i q u e m a d e  71  monitoring by fisheries authorities more easy (Bierwert 1997; Newell 1993; W a r e 1983). Regulations required that Indian nets h a d to be t a g g e d m a k i n g t h e m clearly recognizable to fisheries authorities ( W a r e 1983). Ernie Crey s u m s up the circumstances f a c e d by St6:l6 fishers: From 1888 o n w a r d , the great tribal fisheries of the Fraser River w a t e r s h e d w e r e under attack. Fisheries officers w e r e sent t h r o u g h o u t the interior to tear d o w n our fishing weirs, to dismantle our traps, a n d to k e e p us a w a y f r o m the river. (1993)  Early Struggles With Regulation Arising from increased pressure f r o m the nascent c a n n i n g industry, n e w fishing regulations w e r e implemented in 1888 that w o u l d greatly r e s h a p e Aboriginal fisheries a n d t o u c h off conflict that persists to this day. C o m p r e h e n s i v e controls over salmon a n d trout fishing, w e r e put into place, including prescribed o p e n a n d closed periods a n d m e t h o d s of net fishing. T h e prohibition r e m a i n e d against net fishing without lease or licence, net fishing in fresh water a n d obstruction of more t h a n o n e third of a n y river. Penalties w e r e n o w provided for violation. T h e Indian f o o d fishery w a s exempt f r o m t h e s e Regulations a n d Indians w e r e to 'at all times h a v e liberty to fish for the purpose of providing f o o d for themselves, but not for sale, barter or traffic by a n y m e a n s other t h a n w i t h drift nets or spearing.' Jos Dyck, in his discussion of early resistance m o v e m e n t s on the part of Native peoples, notes that St6:l6 fishers r e s p o n d e d almost immediately. In the s u m m e r of 1888, St6:l6 fishers united to express c o n c e r n about the cannery-related fishing that w a s taking place near the river m o u t h . St6:l6 chiefs sent a petition to the Department of Indian Affairs stating that their people w e r e in d a n g e r of not h a v i n g e n o u g h salmon for the winter. A c c o r d i n g to Dyck, the St6:l6 c l a i m e d that f e w s a l m o n w e r e getting past the nets at the river mouth a n d the o n e s that did w e r e  72  rope-marked and spent (1991:28)  19  The 20 century saw a steady growth of confrontations and net seizures on the th  Fraser River. In particular the years 1913-1914 witnessed an escalation in federal attacks on Indian fishing rights as a series of ecological disasters devastated the 1913 and 1914 Fraser River salmon runs. If one single event can be seen as adding fuel to the fire of fisheries regulation, it is the Hell's Gate disaster. The 1913 rock slide at Hell's Gate in the Fraser Canyon proved to be an ecological disaster of immense proportion. Explosions by railway construction crews triggered a massive rock slide effectively blocking the 1913 return migration of Fraser River spring and sockeye salmon. Cannery operators, facing economic crisis at the impending loss of future sockeye runs, exerted increased pressure on fishing authorities to further limit the Indian fishery. Federal officials responded by strictly enforcing previously unenforced clauses of the fisheries regulation banning nets in inland waters and by completely closing the early July Indian fishery between Hope and Lytton (Ware 1983). Over Indian protests, this level of restriction continued for the next few years culminating in the complete closure of the river to 'Indian fishing' for the 1919-1921 fishing seasons. Enforcement of the Fraser River closure was dropped when it was realized that it was unenforceable short of physical occupation of the villages (Ware 1983:33). Ware reports that all the tribes from Chilliwack up river resisted the prohibition. Dip netting at night was one method they used. According to Ware, J.P. Babcock reported:  Canada, Department of Indian Affairs, RG10, NAC- UBCIC. R. C-10140, F. 50341, V. 3802. Petition from the Chiefs assembled at Yale to Indian Agent McTierman, 13 August 1888. 19  73  ...notwithstanding the Dominion's order prohibiting the Indians f r o m taking S a l m o n above.. Mission Bridge, a considerable n u m b e r of S o c k e y e w e r e taken by t h e m in the c a n y o n . (1983:33-4) Prior to the protests over the total closure of the Fraser, St6:l6 fishers protested regulations that targeted traditional fishing technologies. Even after the use of drift or bag-nets (important St6:l6 fishing m e t h o d s for fishing b e l o w Yale) w e r e outlawed, St6:l6 fishers c o n t i n u e d to rely on these traditional fishing t e c h n i q u e s . During the 1883 fishing s e a s o n , the local fish guardian seized a large n u m b e r of nets in the Fraser River a n d Indians from Yale to S q u a m i s h 'protested loudly a n d angrily' against the seizures ( W a r e 1983:17).  A . C . A n d e r s o n , Fishery Inspector, quickly issued an order  to return the nets. T h i s however, w a s not always the r e s p o n s e o n the part of the g o v e r n m e n t a n d net seizures continue to the present. C a m e r o n (1997) notes that in 1916 Aboriginal people in the province united in a n organization called the Allied T r i b e s of B.C. to press Aboriginal claims for land a n d resources. However, in 1927, just before the tribes w e n t to Ottawa to press their claims, the federal g o v e r n m e n t inserted a provision in the Indian Act preventing Aboriginal people f r o m obtaining legal assistance (1997:146). Transcripts of the 1913-16 the Royal C o m m i s s i o n testimonies a n d transcripts of oral histories reveal that many St6:l6 people c o n t i n u e d to sell fish to m a k e e n d s meet a n d to obtain sugar a n d other grocery items. Felix Joe of Seabird Island reported to C o m m i s s i o n e r S h a w in 1914: W h e n a s k e d if they ever sell - "Yes, w h e n s e a s o n s for fishing are g o o d , w e catch fish a n d sell s o m e for other f o o d . Chief W i l l i e G l a d e s of P o p c u m in 1914 reported to C o m m i s s i o n e r M c K e n n a : "Occasionally go out fishing a n d sometimes sell s o m e of the fish in order to  74  exchange it for groceries." Assistant Chief Henry Edwards of Cheam reported to Commissioner McDowell in 1914: "We depend quite a bit on the salmon, and we sell fish also." Chief Charlie of Matsqui reported to Commissioner McKenna in 1915: "Some Indians fish during the fishing season and some do not because have to buy a licence. Some fish for the canneries. Sometimes sell fish to whites to get sugar and tea." Some reported to the Commission that at one time they fished for the canneries, some using cannery boats and outfits, but for the most part the money they made barely covered the expense [of the licence and the gasoline]. Chief Harry of Chilliwack reported to Commissioner Shaw in 1915: "Some Indians go to the canneries to fish." Sub Chief Johnnie Lewis of Kilgard reported to Commissioner McKenna in 1915: "Indians used to go to the canneries to fish, don't now. Catch fish for their own use." Fishing For Themselves  Struggles over fisheries regulations would continue throughout the 20 century th  and into the 21 . The St6:l6 faced restrictions on when and how they could fish. An st  examination of those restrictions and the responses to them by St6:l6 fishers reveals a picture of a hard fought battle for the right to fish. Turning again to Gerald Howard's words from his 1944 report: The Indian fishery on the Fraser River is controlled by the Dominion Department of Fisheries. This department has the power to specify the locations for fishing, the gear to be used, the number of fish to be taken, and the time during which the fishery is pursued. The Indians are permitted to take the salmon only for their own consumption; they are not allowed to sell them. Hence this is not a commercial fishery. (1944:65)  75  T h e Sto: 16 talk of a time w h e n they fished s e v e n days a w e e k . In an interview c o n d u c t e d in 1985, G r a n d Chief P.D. Peters w h o w a s 7 3 at the time of the interview, s p o k e of h e a r i n g his grandfather talk about fishing in the river. Notes G r a n d Chief Peters, " w h e n I w a s a kid, I think they w e r e fishing s e v e n d a y s a w e e k " (St6:l6 Tribal Council Oral History, July 12, 1985, p. 5). Mrs. E d n a D o u g l a s of C h e a m also talks of a time w h e n St6:l6 people f i s h e d s e v e n days a w e e k . Notes, Mrs. D o u g l a s w h o w a s 6 5 at the time of the interview, "...we had s e v e n days a w e e k , w e could fish all w e want" (Oral History J a n u a r y 16, 1985, p. 4). But a s Mr. H o w a r d reminds us, Indian fishing w a s regulated, often strictly. Data regarding the n u m b e r of allowable fishing d a y s is only available for a time beginning in 1 9 5 1 , h o w e v e r it d o e s reflect that the d a y s available to the St6:l6 for fishing w e r e indeed regulated by the federal g o v e r n m e n t .  20  D r a w i n g o n the available data regarding allowable fishing d a y s for the s u m m e r s o c k e y e run, w e find that in the years from 1951 t h r o u g h 1961 o p e n periods in the Fraser River Indian F o o d Fishery ( I F F )  21  w e r e limited to four d a y s per w e e k , year  r o u n d - 1 8 0 0 hours W e d n e s d a y to 1800 hours Sunday. From 1962 t h r o u g h 1966, the n u m b e r of allowable d a y s w o u l d be r e d u c e d to three a s c o n c e r n s b e g a n to mount regarding the early Stuart s o c k e y e r u n .  22  T h e n u m b e r of allowable fishing d a y s w a s cut  T h e more detailed accounting of the fishery that Gerald H o w a r d called for in his 1944 report to International Salmon Fisheries C o m m i s s i o n resulted in the more detailed a c c o u n t i n g of Indian catches f o u n d in the reports after 1 9 5 1 . 20  l n d i a n F o o d Fishery or IFF w a s the official designation of the A b o r i g i n a l fishery prior to 1992 a n d the implementation of a n e w Aboriginal Fishing Strategy ( A F S ) . 21  T h e early Stuart run is the first s o c k e y e salmon run of the year, so n a m e d b e c a u s e they return early in the fishing s e a s o n to s p a w n in the Stuart River system in northern British C o l u m b i a . T h i s run has b e e n a serious conservation c o n c e r n for d e c a d e s a n d limited, if any fishing has generally b e e n allowed. T h i s run is of importance to the c a n y o n w i n d dry fishers in that it occcurs during the period of time 22  76  drastically w h e n , in 1967, the river w o u l d be closed to fishing f r o m July 3 to July 23, a g a i n to protect the early Stuarts. In 1968 there w a s a o n e d a y o p e n i n g the first two w e e k s in July. This pattern of limiting fishing to o n e day a w e e k f r o m late J u n e to early July w o u l d c o n t i n u e t h r o u g h 1973 as part of a m a n d a t e by fisheries officials to c o n s e r v e the early Stuart s o c k e y e run. In 1976, after a brief return to three d a y s a w e e k o p e n i n g s , c o n c e r n s for the early Stuart run w o u l d force a return to the more restricted openings, w h e r e b y o p e n i n g s w o u l d t h e n be limited to o n e d a y per w e e k d u r i n g this critical run time. In 1980 no fishing w a s allowed f r o m the e n d of J u n e until mid July, a g a i n in an effort to protect the early Stuart s o c k e y e run. It has b e e n the restricted fishing o n this run that has led to the n u m e r o u s confrontations a n d protests that c o n t i n u e to present. Not only d o e s this time period in late J u n e mark the arrival of the first s o c k e y e into the river, it is the only time that s o c k e y e c a n be w i n d dried in the Fraser C a n y o n . T h e w i n d dry fishery being an important fishery then a s now. Families, primarily from S e a b i r d Island, h e a d e d to the c a n y o n to take a d v a n t a g e of a very small w i n d o w of opportunity for w i n d drying their s a l m o n . This w i n d o w of drying time is limited to approximately two w e e k s during the month of July. O v e r the years, 'closures' to protect this run h a v e resulted in confrontations b e t w e e n St6:l6 fishers a n d D F O as well a s confrontations b e t w e e n w i n d dryers a n d other St6:l6 fishers. T h e restriction o n allowable fishing d a y s w a s only o n e of the w a y s St6:l6 fishers w e r e assaulted by fisheries regulations. W h e n interviewed in 1985, Mrs. E d n a Douglas of C h e a m talked of the humiliating e n c o u n t e r s with fisheries officers. Mrs. D o u g l a s s p o k e of h o w different fisheries officers [in the c a n y o n ] w o u l d enforce different  w h e n c a n y o n w e a t h e r a n d w i n d conditions are optimal for drying the s a l m o n o n racks.  77  restrictions. Q u o t i n g Mrs. Douglas: T h e r e w a s a time so bad, in a r o u n d , b e t w e e n 4 8 a n d early 50s, there w a s a n officer in the Y a l e district, that w a s so bad that, it w a s just like y o u h a d a tyrant over y o u , or s o m e truant officer. (Oral History transcript, J a n u a r y 16, 1985, p a g e 6) W h e n a s k e d w h a t sorts of things he did, Mrs. D o u g l a s r e s p o n d e d : W e l l he m a d e y o u count your fish in front of him, a n d he'd c o m e , a n d s e e m a y b e in a w e e k he'd c o m e a n d see, w h e r e y o u put it a n d h o w y o u did it or if y o u salted it he'd try a n d count in the barrel a n d he'd see w h e r e y o u put your c a n n i n g w a s , he'd look into your d e e p freezer, s e e if y o u put it there. (Oral History transcript, J a n u a r y 16, 1985, p a g e 6 ) W h e n a s k e d if the officers actually entered her home, Mrs. D o u g l a s r e s p o n d e d in the affirmative: If he s e e n t h e m , say, with, say about 3 0 fish a n d to his estimation y o u only h a d a b o u t 15 in y o u r jars, w h i c h h e f i g u r e d y o u might h a v e h a d 15, h e ' d w a n t to k n o w w h a t y o u did with the other 15 they stop y o u a n y w h e r e if y o u w e r e s h o p p i n g in town they'd c o m e a n d look in your trunk. P e o p l e k n e w that they w e r e looking in your trunk for s o m e t h i n g . (Oral History transcript, J a n u a r y 16, 1985, page 7) Prior to 1967 Indian fishers w e r e only required to have a permit to fish. In 1967 the permit of earlier regulation b e c a m e a special license w h i c h fishers w e r e required to carry while fishing in case of inspection. T h e gill nets - the only allowable g e a r at that time - w e r e required to display the license number. In o n e c o n v e r s a t i o n Corky Douglas of C h e a m ( E d n a D o u g l a s ' son) told m e a story of time w h e n h e w a s very y o u n g fishing with his mother. It s u d d e n l y d a w n e d on his mother that her license n u m b e r w a s not on the net. A s she ran back to the house to get the tag for the net, she instructed Corky not to let the fisheries officers c o m e near the net. N o n - c o m p l i a n c e with the regulation could h a v e resulted in the loss of net a n d any fish caught. Corky D o u g l a s told me that  78  he, while a small child, d e f e n d e d his mother's net. But equally as troubling to St6:l6 fishers w a s the requirement that all salmon t a k e n u n d e r the license w e r e to be m a r k e d by the licensee after capture. T h i s marking took the f o r m of cutting off the e n d of the n o s e a n d dorsal fin before r e m o v i n g the fish f r o m the site (see Figure 1). St6:l6 fishers with w h o m I s p o k e talked of the years w h e n s a l m o n w e r e required to be m a r k e d . S o m e said they refused to cut their fish.  One  fisher w a s quite blunt w h e n he r e m a r k e d to me, "My c o m m e n t to fisheries officers w a s , h o w w o u l d y o u like your n o s e a n d dorsal fin cut off?" A review of court records r e v e a l e d at least o n e conviction of a fisher in 1977 for failure to "mark" his catch. T h e a c c u s e d p l e a d e d guilty o n A u g u s t 7, 1977 a n d w a s placed on probation for a period of o n e year. A s a term of his probation order, he w a s directed to surrender his permit to fish for a period of o n e m o n t h .  23  Other restrictions included a limited transportation a r e a for s a l m o n c a u g h t in the Fraser. Imaginary b o u n d a r i e s w e r e established t h r o u g h o u t St6:l6 territory over w h i c h s a l m o n could not be transported. In 1988 Bruce Crey f r o m C h e a m w a s prohibited from transporting fish he caught at his h o m e reserve at C h e a m w h e n returning to his residence in Burnaby after a day of fishing. Bruce Crey filed a discrimination c a s e with the C a n a d i a n H u m a n Rights C o m m i s s i o n , asking for a n investigation into the regulation that f o r c e d him to "leave his dinner in Chilliwack w h e n he returned to Burnaby" (Valley T i m e s A u g u s t 30, 1988). In Bruce Crey's case, the b o u n d a r y w a s in the vicinity of Matsqui. A fishery officer from the Chilliwack sub-district r e s p o n d e d to Bruce Crey's complaint with a statement published in the V a l l e y T i m e s indicating that the law to  R. v. Gladstone [1978] 40 C.C.C.92nd) 42 79  Figure 1. Notice to Native Fishers How to Mark Salmon Department of Fisheries & O c e a n s Notice, 1977  NOTICE TO INDIANS BRITISH  COLUMBIA  Tftfi British Columbia fishery regulations require that all salmon and stsslhead trout caught under authority of an Indian permit be marked for identification purposes by removal of the dorsal fin and the end e( the nose or snout immediately after capture and before removal ffom the fishing site.  R E M O V A L OF D O R S A L FIN AND E N D OF NOSE WILL BE CARRIED O U T AS ILLUSTRATED BELOW:  END O F NOSE REMOVED  Plar.e  By Order  Dote  M i n i s t e r o f Fisheries f o r C a n a d a This Poster may be Displayed in Post Office Lobbies by Authority of the Postmaster General  F-333; :Rev.l/74l  80  w h i c h Bruce Crey h a d b e e n referring w a s "found to be outside the Federal p o w e r to regulate a n d h a d not b e e n e n f o r c e d for many years" indicating that it w a s lawful for Bruce Crey to transport his fish home. St6:l6 fishers with w h o m I s p o k e talked of this regulation a n d h o w it h a d b e e n u s e d against t h e m . T h e y talked of e n f o r c e m e n t officers following t h e m h o m e to see just h o w they far they w e r e traveling with the s a l m o n they h a d caught. T h e fisheries officer w e n t o n to counter Bruce Crey's remark that he h a d no choice a b o u t w h e r e he w a s to fish, by repeating the department's policy o n the issuance of F o o d Fishing Licenses. A c c o r d i n g to the officer: T h e department's policy respects the traditional fishing a r e a s of the local b a n d s a n d the authority of the Chief of that b a n d to d e t e r m i n e w h o other t h a n b a n d m e m b e r s will fish in that a r e a . S h o u l d a status Indian f r o m a n o t h e r a r e a w i s h to fish in a traditional area, he must first obtain written permission from the b a n d chief to do so, w h e r e u p o n the d e p a r t m e n t w o u l d issue him a license to fish. (Valley T i m e s , S e p t e m b e r 2, 1988) T h e officer further noted, that had Bruce Crey o b t a i n e d the written permission, the Department w o u l d have issued him a license to fish. Presumably, Bruce Crey could h a v e b e e n able to obtain the required permission allowing him a license to fish a w a y from his reserve. However, while claiming to respect traditional fishing areas, the officer's r e s p o n s e to Bruce Crey's complaint reflects a lack of u n d e r s t a n d i n g of the c o n n e c t i o n b e t w e e n St6:l6 people a n d their traditional fishing sites. T h r o u g h o u t the late 1960s - the point in time w h e n early Stuart conservation c o n c e r n s f o r c e d the closure of the river to Indian f o o d fishing in late J u n e to early July St6:l6 fishers b e g a n to protest restrictions o n their right to fish. In July of 1967 Chief Albert D o u g l a s of C h e a m c o m m e n t e d to the press regarding the seizure of Indian fishing nets. Q u o t i n g Albert Douglas: 81  T h e fisheries department is seizing Indian nets a n d running a 2 4 hour patrol off the C h e a m reserve near Rosedale while the lower Fraser is o p e n to c o m m e r c i a l fishers. O u r people are being arrested a n d having their fishing g e a r confiscated while acting within their hereditary rights. All d u r i n g the closure the commercial f i s h e r m e n w e r e allowed to use eight-inch nets. But t h e d e p a r t m e n t ruled w e couldn't use nets of a n y size. T h e g o v e r n m e n t h a s 15 to 2 0 m e n patrolling the a r e a by boat a n d car a n d others are s n e a k i n g t h r o u g h the b u s h . T h i s is nothing but discrimination against Indians. T h o s e w e r e our fish long before the white m a n c a m e a n d w e still h a v e a right to t h e m . (The Province, T h u r s d a y July 2 0 , 1967) Indians protesting the curtailment of their fishing rights s o u g h t relief t h r o u g h t h e 1763 proclamation by King G e o r g e III. A V a n c o u v e r attorney p r e p a r e d a brief sent to O t t a w a by the Indians indicating that the proclamation g a v e t h e m the right to hunt a n d fish o n u n o c c u p i e d C r o w n land. T w e n t y St6:l6 w o r k e d o n the brief, including Chief W i l l i a m Mussell of Chilliwack. Noted Mussell, the straw that broke t h e camel's b a c k w a s not just the reduction to three days of fishing per w e e k , but also t h e complete closure of t h e river to c o n s e r v e the early Stuart run (The Province, O c t o b e r 2 4 , 1967). A g a i n in 1968, Indians p r e s s e d for a n e n d to federal regulation of their fishing rights a n d chiefs w a r n e d that s o m e w o u l d be ignoring t h o s e regulations. Of primary c o n c e r n w a s t h e closure of the river in early July, the time w h e n "there is a g o o d w i n d to dry the fish" (Vancouver  Sun, M a y 3, 1968).  St6:l6 fishing families sought clarification of the fishing regulations affecting t h e m w h e n , in 1 9 7 1 , they requested a meeting the Jack Davis, t h e n federal e n v i r o n m e n t minister. O n e the complaints m a d e by Mrs. E d n a Douglas, s p o k e s p e r s o n for t h e g r o u p of Native peoples meeting with Mr. Davis, f o c u s e d o n t h e fact that fisheries officers w e r e g o i n g onto reserves a n d seizing fish f r o m h o m e s . However, the Native group's pleas fell o n deaf ears, w h e n the Fisheries s p o k e s m a n for Chilliwack  82  indicated that the basis for the complaint was the continuing desire of Indian people to sell fish. Commenting on Mrs. Douglas's specific complaint, the spokesman said that officers had the right to search without a warrant. He also reminded the fishers of their obligation to 'mark' their fish. Such was the relationship between St6:l6 fishers and the government as the 1970s began. By 1978 St6:l6 fishers would protest the imposition of a new IFF license resulting from the implementation of the "Salmonoid Enhancement Program," a project designed to deal with the phenomenon of the mixed stock fishery and to increase British Columbia's salmon resources through the construction of a large number of artificial spawning channels. According to Aboriginal leaders the new IFF license that was to be enforced in relation to this program would transform Indian fishing rights into Indian welfare privileges (St6:ldNation  News, Coqualeetza, August 1978, No. 35). Hostilities  escalated when in 1983 Indian fishers decried the use of raids on their homes in an effort to lay poaching charges. As a result of a 1982 sting operation, raids on Indian homes resulted in seized vehicles and salmon poaching charges against 129 Indian fisherman. Quoting the Native Brotherhood of B.C. president, Ed Newman: They didn't go into the white community and wave money around. They didn't go into white people's homes and seize cars The rights of Indian people in BC are on trial. {Vancouver Sun, January 20, 1983) In 1894 various St6:l6 chiefs presented a letter to the Indian superintendent expressing their concerns about fishing regulations and over-fishing. Over one hundred years later, St6:l6 fishers would find themselves engaged in warfare on the water, protesting those same regulations and the conservation measures necessitated by industrial over fishing. In 1986 violence erupted at Gill Bay near the Cheam reserve  83  b e t w e e n fisheries officers a n d Sto: 16 people w h e n Sto: 16 fishers protested t h e closure of t h e river a n d set their nets. U p to t e n Sto: 16 w o u l d face c h a r g e s of mischief, obstructing a fisheries officer a n d illegal fishing in c o n n e c t i o n with t h e protest fishery at Gill Bay including S a m Douglas of C h e a m a n d Lester N e d of S u m a s . In protest, 6 0 m e m b e r s of t h e C h e a m a n d S u m a s Indian b a n d s returned federal food-fish licenses to the fisheries d e p a r t m e n t (Vancouver Sun, A u g u s t 2 5 , 1986). T h e incident at Gill Bay will b e d i s c u s s e d in more detail in Chapter Four. In 1 9 8 9 t h e St6:l6 Tribal Council a n d St6:l6 Nation C a n a d a c a m e together to plan a strategy to deal with t h e fact that t h e St6:l6 w e r e being continually f o r c e d off t h e river, particularly during t h e very important w e e k s in late J u n e a n d early July. Meeting in t h e S e a b i r d Island community hall, Elders from several St6:l6 b a n d s rose t o s p e a k of the loss of fishing opportunities. R a y Silver, a n d elder of t h e S u m a s b a n d , talked of h o w p e o p l e there h a d suffered b e c a u s e of t h e shortage. Q u o t i n g Mr. Silver: W e ' v e got a long h o u s e o n t h e reservation now. A n d lately w e ' v e h a d a f e w parties a n d w h e n people c o m e they expect to eat s a l m o n . ...It's g o d d a m n e d s a d that w e h a v e t o sit b a c k w h e n t h e fish c o m e u p the river a n d w e can't f e e d o u r guests. It's pretty b a d w h e y y o u h a v e to g o out a n d b u y salmon. (Chilliwack Progress, W e d n e s d a y M a y 3, 1 9 8 9 ) Mr. Silver a d d e d that his b a n d didn't catch fish during their 2 4 - h o u r limit a f e w w e e k s a g o a n d h a d to p u r c h a s e s o m e from a fish c o m p a n y . Other Elders present at t h e meeting s p o k e of t h e o n g o i n g problem. Jimmy Fraser, a n Elder f r o m S e a b i r d Island noted that: W e ' r e lucky if w e have e n o u g h fish to count o n both h a n d s . T h e w a y things are g o i n g n o w it w o u l d be c h e a p e r for us to g o to S a f e w a y a n d b u y o u r [Chinook] s a l m o n . W i t h t h e 2 4 hours w e ' r e just not getting e n o u g h to eat. (Chilliwack Progress, W e d n e s d a y M a y 3, 1 9 8 9 ) Reflecting t h e sentiments m a d e clear w h e n St6:l6 leaders met to negotiate with D F O ,  84  Clarence Pennier (then chairman of St6:l6 Tribal Council and chief of the Scowlitz band) made clear the necessary steps to be taken: The only way we'll ever see any change is through a concerted effort of the people to go fishing. Negotiations aren't going to happen. If we believe that that's our right, then we have to do it because we've exhausted the other avenues. (Chilliwack Progress, Wednesday May 3, 1989) Summary and Discussion  While many factors have contributed to the loss of access to fishing sites, regulation imposed as a result of the industrialization of the fishery has most profoundly shaped the St6:l6 fishery in the historic period. St6:l6 fishers had adopted an array of fishing technologies as part of their traditional fishing strategies. Nearly all of those technologies were banned as a result of pressure from cannery operators. Restrictions were placed on where, when and how fish were to be harvested. Fishing times, sites and techniques were no longer decided upon by Siya:m but by fisheries officers. In essence, Fisheries officers became Siyam  24  As evidenced by oral history testimony, interview data and archival newspaper reports, it is clear that federal fisheries officials worked systematically to remove St6:l6 fishers from the river and push them further to the economic margins. These actions that so clearly echoed the sentiments of Gerald Howard regarding the perceived unimportance of the Indian fishery "hardened the mortar" around a fractured fishery that had been created by regulations more than one hundred years earlier. By the 1990s it would be left to the courts to address the Aboriginal right to fish. In the following chapter I explore how the courts have reshaped the St6:l6 fishery by creating an in-  Described by Ernie Crey as the result of decisions regarding access and management were transferred from Indian leaders to fisheries officers (1998). 24  85  river Indian c o m m e r c i a l fishery. I also e x a m i n e h o w perceptions of an in-river Indian c o m m e r c i a l fishery factor into the r e s p o n s e s of St6:l6 fishers.  86  Chapter Three: The Courts Reshape the Fishery  In 1988 Native f i s h e r m e n f r o m various b a n d s h e a d e d t o t h e Fraser River at R o s e d a l e ( C h e a m territory) with plans to defy t h e regulations g o v e r n i n g t h e so-called Indian f o o d fishery, in w h i c h Native Indians w e r e permitted to catch fish f o r f o o d , but not sell t h e m . A s reported b y t h e Globe & Mail, a coast w i d e protest fishery w a s s c h e d u l e d t o mark t h e 1 0 0 year of food-fishery regulations o n t h e W e s t Coast th  (August, 1988). T h e protest followed a court ruling that u p h e l d several o f t h e regulations Native f i s h e r m e n w e r e protesting that d a y (Globe & Mail, A u g u s t 1988). In 1989 more arrests w o u l d follow a s Aboriginal peoples fished in spite of river closures. In late M a y of 1989, Melvin Malloway w a s arrested near Y a l e after exercising his Aboriginal right to fish. Reports t h e Chilliwack Progress, three people w e r e arrested, including Melvin Malloway, a n d t w o nets w e r e seized a l o n g with six Chinook (spring) s a l m o n , a boat, motor a n d trailer. T h e incident w o u l d be t h e s e c o n d time in less than a w e e k that fisheries officers h a d arrested people f o r alleged fisheries violations ( M a y 2 4 , 1989). It w a s also reported in the Chilliwack Progress, that about ninety percent o f t h e 2 8 0 c h a r g e s laid by Chilliwack Fisheries officers that s e a s o n w e r e f o r fishing during a closed time - Native peoples setting their nets w h e n t h e f o o d fishery w a s c l o s e d ( W e d n e s d a y , S e p t e m b e r 20, 1989). Regulations a i m e d at t h e Native fishery w e r e met with resistance w h e n meetings with fisheries officials in t h e m i d 1980s failed to s e c u r e a n y u n d e r s t a n d i n g o f the e c o n o m i c importance o f the fishery to Sto: Id people. Instead, Aboriginal leaders w e r e informed by fisheries officials that short of relief f r o m t h e courts  87  or direct action o n t h e part of t h e fishers, no c h a n g e in policy w o u l d o c c u r .  25  Aboriginal  leaders t o o k t h e fisheries officials at their w o r d a n d r e s p o n d e d ; not only turning to t h e courts but also relying o n organized acts of civil d i s o b e d i e n c e . T h e protest fishery at Gill Bay, w h i c h resulted in actual combat o n t h e river, w a s t h e direct result of t h e D F O ultimatum. B a n d s w o u l d continue to fish in defiance of regulations a n d c h a r g e s w o u l d c o n t i n u e t o b e laid. It w o u l d be in t h e last d e c a d e of t h e 2 0  t h  century that t h e courts w o u l d b e c o m e a  n e w battleground o n w h i c h t h e Aboriginal right to fish w o u l d be fought. It is clearly evident that t h e years prior to t h e battle m a k i n g its w a y into t h e c o u r t r o o m w e r e w r o u g h t with turmoil for t h e Sto: 16 people. T w o cases w o u l d m a k e their w a y to t h e S u p r e m e Court of C a n a d a in t h e 1990s that w o u l d lay t h e g r o u n d w o r k for future claims regarding t h e Aboriginal right to fish: Sparrow a n d Vander Peet. T h e rulings in Sparrow and Vander Peet w o u l d prove to be important markers in history a s both cases brought to t h e fore t h e question of a n Aboriginal right to fish. In 1990, t h e S u p r e m e Court of C a n a d a ruled in R v Sparrow ( [ 1 9 9 0 ] 1 S.C.R. 1075) that t h e Aboriginal fishery took p r e c e d e n c e over t h e commercial fishery, s e c o n d only to c o n s e r v a t i o n in priority. In Vander Peet ([1996] 2 S.C.R. 507), t h e right to sell in-river c a u g h t s a l m o n w a s again c h a l l e n g e d . W h i l e t h e S u p r e m e Court ultimately s u p p o r t e d t h e b a n o n sales, t h e lower court d i d a c k n o w l e d g e d that a Native right to sell fish h a s existed in t h e past. A s a result of t h e courts' rulings, significant c h a n g e s w e r e m a d e in t h e fishery.  l n a c o n v e r s a t i o n with o n e St6:l6 leader, a particular situation w a s d e s c r i b e d w h e r e a n off t h e record c o m m e n t w a s m a d e to t h e St6:l6 leaders a s s e m b l e d regarding w h a t w o u l d b e necessary to effect a n y c h a n g e in D F O ' s policy. T h i s w a s not t h e only s u c h incident related to me, w h e r e it w a s m a d e clear to St6:l6 leaders that t h e n e e d s of St6:l6 fishers w e r e of less importance than those of t h e industrial a n d sports fisheries. 25  88  In addition t o a c k n o w l e d g i n g that t h e Aboriginal fishery w a s to take priority over all other fisheries, a n e w Aboriginal Fisheries Strategy (AFS) w a s i m p l e m e n t e d that included a Pilot Sale p r o g r a m providing f o r t h e legal sale o f in-river c a u g h t s o c k e y e f o r the first time in over o n e h u n d r e d years. In this chapter I provide a n o v e r v i e w of t h e specific court cases, beginning with Sparrow a n d Vander Peet that directly a n d indirectly r e s h a p e d t h e St6:l6 fishery. I also discuss t h e St6:l6 fishery in t h e y e a r s since Sparrow, f o c u s i n g o n t h e "creation" of a commercial fishery a n d t h e construction of a b u r e a u c r a c y c h a r g e d with m a n a g i n g t h e post-Sparrow fishery. A s a part of that discussion I seek to explicate h o w this bureaucracy not only did little to repair a fishery f r a c t u r e d b y regulation, b u t also contributed t o t h e m a n y fissures w i t h i n t h e "Indian fishery" a s well a s b e t w e e n t h e Indian a n d industrial fisheries. Indian Fishers and the Courts A s in t h e past, fishing remains a critical c o m p o n e n t of St6:l6 life. Marilyn B e n n e t t n o t e d , i n h e r statistical study o f Indian fishing, that in 1972, traditional fishing places w e r e still u s e d b y Indians of t h e Fraser River system. Eighty-nine percent o f the key r e s p o n d e n t s t o h e r study said that t h e b a n d o f w h i c h they w e r e m e m b e r s h a d fishing places that h a v e b e e n in use for many years (1975:16). M a p p i n g projects c o n d u c t e d in t h e 1 9 9 0 s a n d a g a i n i n 2 0 0 2 graphically depict t h e i m p o r t a n c e o f fishing to St6:l6 people ( s e e Figure 2 ) . Supporting t h e m a p d a t a are oral histories describing a time w h e n "Indians could fish s e v e n days a week." Interviews I c o n d u c t e d with elderly fishers describe a time w h e n fewer restrictions w e r e placed o n allowable fishing days. However, a s outlined in t h e previous chapter, fishing b e g a n to b e curtailed in t h e early 1960s. Restrictions o n allowable fishing days w o u l d continue t h r o u g h o u t t h e late  89  J  St6:ld Nation Fishing Site Inventory Projects  Projection: Sole:  UTM  P l o  -  , e c t l  , ^_ 0  l:22S,0OO  Contour Interval DATE  200ro  <j^. ;  2OO3/05.O9  Company Slojfi Valjoo, Aboriginal Right* and Title Dept.  IQOl Fish Jrwerrtory 1977 Fishing Site Study Family Owned Sins "Fishing* LTD  Large Fishing Areas  /\/Roads /\y  Hydrology  /\y  Railroads  I  ' 1 Islands Water  T i  CO c —I  CD  jv)  3 CJ "D  O  cn The St&ld Nation Aboriginal Rights] and Title Dept. (AR&T) accept no responsibility for the accuracy of the data shown on this map. Data is compiled 6 0 m various sources and ^j]the most recent digital files m a y o r may not be stored at A R & T .  ?: O" T l  55" •T  T R I M Data (Terrain Resource Integrated Mapping) Courtesy of W L A P . Date last revised [an. 1992. STO:LO F I S H I N G SITE Data Conducted by Terry Clavin Team members includes Henry Ned. Lester Ned, Ray Silver, Tony Malloway and Vince Busto. July 15th - ajrd, 2002 AH above data translated and compiled by Stolo Nation, Aboriginal Rights and Title Dept. Leeanna Rhodes, GIS Technician A u g 15th, 2002  5" cn 5-' CD  1960s, 1970s, 1980s a n d 1990s as fishers f a c e d significant c h a n g e s in the industrial fishery as a result of policy c h a n g e s directed first, at d e a l i n g with a n o v e r - c r o w e d fishery a n d dwindling resource a n d s e c o n d , at dealing with the implementation of the m a n d a t e s following f r o m Sparrow. W h e n fisheries officials resorted to the curtailment of Aboriginal fishing a s a m e a n s of dealing with c h a n g e s in the industry, Aboriginal fishers protested g o v e r n m e n t interference in their fishery. For example, near Chilliwack d u r i n g the 1970 s a l m o n fishing s e a s o n , 100 y o u n g Indians c o n d u c t e d a 'fish in.' O v e r the years, n e w s p a p e r a c c o u n t s w o u l d chronicle the o n - g o i n g struggle over fishing rights as St6:l6 fishers c o n t i n u e d to maintain their Aboriginal right to fish, that fight given n e w fuel by the court rulings of the 1990s. A s Indian fishers t u r n e d to the courts to settle the struggle over fishing rights, a n u m b e r of court rulings p r o v e d significant regarding Aboriginal rights in general a n d more specifically in regards to the Aboriginal right to fish. Not only did these c a s e s r e s h a p e the Aboriginal fishery, they also s h a p e d a n d r e s h a p e d perceptions of the importance of the Aboriginal fishery a m o n g both St6:l6 fishers a n d commercial fishers. T a b l e 4 lists s o m e of the court c a s e s figuring prominently in regards to Aboriginal rights. T h e s e c a s e s w e r e m e n t i o n e d most often to me by St6:l6 fishers w h e n talking about the role of the courts in protecting the Aboriginal right to fish. In my discussions with St6:l6 fishers regarding the Aboriginal right to fish, the conversations usually b e g a n with a discussion of the role of fishing as a traditional element of St6:l6 life, a n d e a c h conversation e n d e d with that role of tradition d i s c u s s e d within a context of the a d v a n c e s in the courts as well as the protection of Aboriginal rights as part of the C a n a d i a n Constitution Act of 1982. In m a n y instances, the roles of tradition, the courts a n d the Constitution in the  91  affirmation of Aboriginal rights s e e m e d inextricably interconnected, m u c h like t h e m e s h of t h e Sto: 16 fishing nets. W h i l e all of t h e a f o r e m e n t i o n e d cases have h a d s o m e affect o n t h e Sto: 16  Table 4. Aboriginal Fisheries Court Cases Case  Trial Date  Supreme Court Appeal  R v. Guerin R v. Sparrow R v. Jack, John, and John R v. Vander Peet R v. Nikal Delgamuukw v. British Columbia R v Marshall R v. Kapp, Bemi, Neef, Leslie Leslie, McDonald, Nguyen Iran, Iran  1975 1984 1989 1987  1998  1984 1990 1995 1996 1996 1998 1999  1988  2003  1990  26  Sources: Souther 1993; Trial documents 1995, 1996, 1999, 2003. fishery, a s previously noted t h e most important court case w a s t h e Sparrow case ( B o x b e r g e r 1993, C a m e r o n 1997, Glavin 1996, M e g g s 1 9 9 1 , Newell 1 9 9 3 , Souther 1993). In 1984, R o n a l d Sparrow, a m e m b e r of t h e M u s q u e a m b a n d from near t h e mouth of t h e Fraser River, w a s arrested for using a net longer t h a n a l l o w e d under his Indian f o o d fishing licence. R o n a l d Sparrow admitted that his f o o d fishing license d i d not permit h i m t o fish with such a long net; however, he d e f e n d e d his action by arguing that h e w a s exercising a n Aboriginal right t o fish ( C a m e r o n 1997). A t t e m p t s t o d e f e n d Sparrow's action led, six years later, to t h e first S u p r e m e Court decision relying o n Section 3 5 ( 1 ) of t h e Constitution Act of 1982, a c k n o w l e d g i n g existing Aboriginal rights  T h e B.C. S u p r e m e Court ruled July 12, 2 0 0 4 that while t h e existing Native-only commercial fishery p r o g r a m h a d serious flaws it did not discriminate against non-Native fishermen. 26  92  ( C a m e r o n 1997). In M a y 1 9 9 0 t h e S u p r e m e Court of C a n a d a ruled in Sparrow v. The Queen that t h e Coast Salish right to fish w a s a n existing Aboriginal right protected u n d e r Section 3 5 ( 1 ) of t h e Constitution Act of 1982; specifically including t h e 'Aboriginal right t o fish f o r f o o d for social a n d ceremonial purposes, a right taking p r e c e d e n c e over other user groups a n d s e c o n d only to conservation of t h e resource' ( B o x b e r g e r 1993). Immediately, Aboriginal fishers put Sparrow t o t h e test. A s t h e ink w a s drying o n Sparrow, protest fisheries w e r e launched contesting D F O ' s c o n s e r v a t i o n c o n c e r n s a n d their decision to close t h e river to Aboriginal fisheries. In t w o protest fisheries, m e m b e r s of t h e C h e a m a n d S u m a s bands, including Chiefs S a m D o u g l a s f r o m C h e a m a n d Chief Lester N e d of S u m a s , w e r e c h a r g e d with illegal net fishing. Eighteen gill nets w e r e seized over t h e July 7 w e e k e n d a n d twenty-three over t h e previous w e e k e n d . T h e b a n d m e m b e r s f i s h e d in protest w h e n a Fraser River sport fishery f o r C h i n o o k (Spring) s a l m o n w a s r e o p e n e d after a brief closure. T h e river h a d b e e n closed to protect t h e early Stuart s o c k e y e run, a run that enters t h e river in late spring a s t h e first s o c k e y e runs b e g i n .  27  A n d a s noted earlier t h e restrictions placed o n t h e Aboriginal  fishery a s part of D F O ' s plan to conserve t h e early Stuart run, w e r e at t h e center of many, if not all of t h e confrontations o n t h e river. C h e a m Chief S a m D o u g l a s q u e s t i o n e d t h e conservation claims m a d e by t h e g o v e r n m e n t in light of D F O ' s decision to allow a sport fishing o p e n i n g in t h e o c e a n a s well a s in t h e river (Progress, W e d n e s d a y , July 18, 1990).  W i t h i n t w o months of t h e Sparrow decision twenty-one  A s n o t e d earlier, restrictions o n t h e Aboriginal fishery b e g a n in t h e early 1960s as c o n c e r n s over t h e early Stuart run b e g a n to arise. 2 7  93  Native Indian fishers w e r e c h a r g e d with illegal fishing in protest of t h e closure of t h e Indian f o o d fishery. T e s t i n g of t h e Sparrow ruling c o n t i n u e d w h e n Melvin M a l l o w a y w a s arrested by two fisheries officers near Y a l e [where K e n Malloway fishes in t h e C a n y o n ] . A g a i n t h e protests c e n t e r e d o n D F O ' s decision t o close t h e river to Aboriginal fishers d u e to a c o n s e r v a t i o n c o n c e r n . T w o other Native fishers w e r e also c h a r g e d . T h e d e f e n s e c l a i m e d that they w e r e exercising their Aboriginal right to fish a s d e f i n e d in t h e Sparrow ruling. Malloway w a s f o u n d guilty of obstructing a fisheries officer a n d f i n e d for fishing violations {Progress, W e d n e s d a y , S e p t e m b e r 5, 1990). T h e Vander Peet c a s e also h a d significant implications for t h e St6:l6 fishery. In Vander Peet, while accepting t h e fact that t h e history of Aboriginal p e o p l e s is p a s s e d f r o m o n e g e n e r a t i o n to a n o t h e r through oral traditions a n d that testimony regarding practices a n d c u s t o m s m a y c o m e in t h e form of elders' oral accounts, t h e court did not find that sufficient e v i d e n c e existed to support t h e fact that a 'commercial' s a l m o n fishery is integral t o St6:l6 culture or heritage. Examining t h e c a s e , Dorothy V a n d e r Peet, a St6:l6, w a s c h a r g e d with illegally selling t e n salmon c a u g h t by h e r h u s b a n d , C h u c k Jimmie u n d e r a n Indian f o o d licence. A s with Mr. Sparrow, M r s . V a n d e r Peet did not contest t h e c h a r g e s , arguing that s h e w a s exercising a n existing Aboriginal right. T h e first trial j u d g e held that t h e St6:l6's Aboriginal right t o fish for f o o d a n d ceremonial p u r p o s e s d i d include t h e right to sell fish. H o w e v e r this ruling w a s reversed by t h e S u p r e m e Court of C a n a d a in 1996. A great deal of confusion s u r r o u n d e d t h e original ruling in Vander Peet. Originally, t h e court ruled that a Native right to sell fish existed. But t h e ruling w a s not  94  that clear cut. B.C. S u p r e m e Court Justice W i l l i a m Selbie ruled that a Native right to sell fish h a d existed in t h e past, but he left it u p to a lower court to d e c i d e d w h e t h e r that right h a d b e e n extinguished by federal fisheries regulations. M a n y Sto: 16 fishers took this ruling to m e a n that they could sell fish without t h e threat of c h a r g e s . But that w a s not t h e c a s e . Sto: 16 fishers w e r e indeed c h a r g e d for selling t h e fish they c a u g h t in t h e Native f o o d fishery. Notes t h e Chilliwack Progress, d o z e n s of Native w e r e c h a r g e d for selling fish f r o m roadside stands a n d door-to-door. Buyers of t h e fish also f a c e d t h e possibility of being c h a r g e d ( S e p t e m b e r 4, 1991). Referring to t h e c o m m e n t s m a d e by W a y n e Furness, Chilliwack senior fisheries officer to t h e press, " N e w s p a p e r headlines a b o u t t h e S u p r e m e Court ruling w e r e misleading a n d put a lot of p e o p l e in j e o p a r d y of b e i n g c h a r g e d f o r selling fish" (September 4 , 1991). But St6:l6 Tribal Council s p o k e s m a n Clarence Pennier said that until t h e lower court ruled o n t h e question of extinguishment, t h e right to sell fish existed. Quoting Pennier: Y o u c a n sell t h e fish, that's w h a t t h e j u d g e said. W h e n t h o s e c h a r g e d finally c o m e to court, I h o p e t h e j u d g e throws t h e c h a r g e s out." (Chilliwack Progress, S e p t e m b e r 4, 1991) A c c o r d i n g t o Indian Fisheries Coordinator G u s Jaltema, "the federal fisheries' position hasn't c h a n g e d a n d those buying or selling fish c a u g h t in t h e Native f o o d fishery w o u l d be c h a r g e d u n d e r existing laws" (Chilliwack Progress, S e p t e m b e r 4, 1991). In 1 9 9 3 t h e B.C. Court of A p p e a l s ruled that Mrs. V a n d e r Peet d i d not h a v e t h e right to sell fish. St6:l6 fisheries leaders, K e n Malloway a n d Ernie Crey, e x p r e s s e d c o n c e r n over t h e effects of t h e Vander Peet ruling o n t h e existing Pilot Sale A g r e e m e n t , the s e c o n d s u c h a g r e e m e n t a n d legal sale opportunity since t h e implementation of t h e A F S in 1 9 9 2 . W h i l e industrial fishers a n d m e m b e r s of t h e B.C. Fisheries Survival  95  Coalition h o p e d t h e Vander Peet ruling w o u l d signal t h e e n d of t h e pilot sale program, t h e p r o g r a m d i d c o n t i n u e w i t h Sto.lo fishers participating in it o v e r t h e next f o u r years. In 1 9 9 6 t h e S u p r e m e Court of C a n a d a u p h e l d t h e Court of A p p e a l s ruling w h e n it ruled that it w a s not s h o w n that t h e trade in fish w a s integral to St6:l6 culture prior t o E u r o p e a n contact. T h i s concept of "integral to" b e c a m e t h e criterion f o r w h e t h e r or not a b a n d c o u l d sell f i s h (Abbottfords & Mission News, S a t u r d a y A u g u s t , 3 1 , 1996). Additional court c a s e s have h a d a direct impact o n t h e Aboriginal right to fish. In the c a s e of R. v Jack, John, and John ([1995] C A 0 1 4 7 6 6 ) , t h e court held that permitting recreational fisheries at or near t h e location of t h e Aboriginal f o o d fisheries w h i l e prohibiting Aboriginal f o o d fishing violated t h e priority o f t h e A b o r i g i n a l f o o d fisheries a s outlined in Sparrow.  J o s e p h Jack, A r n o l d J o h n a n d Martin J o h n of t h e  village of T a h s i s w e r e c h a r g e d with fishing in a n a r e a a n d at a time not authorized by the Fisheries Act. His H o n o r J u d g e Sarich of t h e Provincial Court of B.C. held that t h e D F O h a d unilaterally i m p o s e d t h e fishing allocation by n o t d i s c u s s i n g t h e closure of Leiner River with t h e Indians. A c c o r d i n g to J u d g e Sarich, this did not reflect t h e special trust-like relationship b e t w e e n t h e C r o w n a n d t h e Indian people. In t h e c a s e of R. v Nikal ([1996] 1 S.C.R. 1013), t h e court ruled that t h e license r e q u i r e d by D F O d i d n o t itself impose a n infringement o f a n A b o r i g i n a l right t o fish. However, t h e conditions imposed o n t h e licensee did constitute a n unjustified infringement of t h e appellant's right to fish. Jerry Nikal a W e t ' s u w e t ' e n Indian a n d m e m b e r of t h e Moricetown B a n d w a s fishing in t h e M o r i c e t o w n c a n y o n , w h e r e W e t ' s u w e t ' e n Indians h a v e f i s h e d since time immemorial. H e w a s c h a r g e d w i t h fishing without a license. Native persons, although required to h a v e a license, w e r e entitled to  96  a free permit to fish for s a l m o n in t h e m a n n e r they preferred. Nikal h a d b e e n gaffing s a l m o n in t h e Bulkley River w h e r e it flows t h r o u g h his reserve. He took t h e position that t h e licensing s c h e m e infringed o n his Aboriginal rights a s p r o v i d e d in Section 3 5 ( 1 ) of t h e Constitution A c t of 1 9 8 2 a n d w a s therefore inapplicable.  In this c a s e t h e Court  d e t e r m i n e d that licensing w a s n o t a n infringement in g e n e r a l , b u t that a n infringement did exist in particular to Mr. Nikal's situation. At least t w o c a s e s f o c u s i n g directly o n Aboriginal rights h a v e figured prominently in t h e c a s e s involving fishing rights. T h e first b e i n g R. v. Guerin ([1984] 2 S.C.R. 3 3 5 ) . T h e c a s e involved t h e lease of 162 acres of t h e M u s q u e a m R e s e r v e t o a c c o m m o d a t e the prestigious S h a u g h n e s s y Golf a n d Country Club. In short t h e D e p a r t m e n t of Indian Affairs leased t h e land to t h e Club o n substantially different terms t h a n t h o s e a g r e e d u p o n by t h e M u s q u e a m B a n d . T h e initial case w a s filed in 1 9 7 5 a n d h e a r d by three levels of courts. Finally, in N o v e m b e r of 1 9 8 4 t h e S u p r e m e Court of C a n a d a ruled in the M u s q u e a m ' s favor a n d reinstated t h e trial a w a r d of $ 1 0 million in c o m p e n s a t i o n . T h e S u p r e m e Court u p h e l d t h e M u s q u e a m ' s claim of a pre-existing Aboriginal title to their reserve, a n d that those rights existed independently of a n y recognition or action by government. Additionally, t h e court a d d r e s s e d t h e fact that t h e g o v e r n m e n t h a d b r e a c h e d its fiduciary duty in accepting a lease contrary t o t h e M u s q u e a m ' s stipulations. A m o n u m e n t a l decision regarding Aboriginal rights a n d title w a s t h e Delgamuukw decision in D e c e m b e r of 1997. Delgamuukw ([1998] 3 S.C.R. 5 0 7 ) a d d r e s s e d t h e issues of extinguishment of Aboriginal title a n d established t h e test for A b o r i g i n a l title. Most importantly, t h e S u p r e m e Court corrected t h e errors of fact m a d e  97  by t h e trial j u d g e , in establishing that oral histories w e r e i n d e e d legitimate for establishing Aboriginal title. A s regards fisheries ( a n d other natural resource issues), Delgamuukw  stipulated that constitutionally recognized Aboriginal rights m a y b e  infringed u p o n by t h e federal government, but that infringement must b e justified a n d c a n n o t c o m e without consultation with First Nations. A n o t h e r pivitol ruling directly regarding fisheries w a s t h e landmark decision in R. v. Marshall ([1999] 3 S.C.R. 4 5 6 ) in t h e Fall of 1999. In Marshall, t h e S u p r e m e Court of C a n a d a r e c o g n i z e d t h e rights of Mi'kmaq Indians in N o v a Scotia to c a t c h a n d sell fish in a c c o r d a n c e with their traditional practices. W h i l e a p p l a u d i n g t h e Courts recognition of M i ' k m a q treaty rights in regards t o their fishery, St6:l6 fishers w i t h w h o m I s p o k e e x p r e s s e d c o n c e r n over the potential effects of R v. Marshall in regard to their ability to profit f r o m a s a l m o n fishery. Of specific c o n c e r n by St6:l6 fishers w e r e t h e limits t h e courts placed o n t h e profitability of t h e M i ' k m a q fisheries. D o n a l d Marshall, a M i ' k m a q Indian, w a s c h a r g e d w i t h t h r e e offenses s e t o u t in t h e f e d e r a l fishery r e g u l a t i o n s - t h e selling of eels without a license, fishing without a license a n d fishing d u r i n g a closed s e a s o n with illegal nets. He admitted that h e h a d c a u g h t a n d sold 4 6 3 p o u n d s of eels without a license a n d with a prohibited net within closed times. A c c o r d i n g to t h e court d o c u m e n t s , t h e only issue at trial w a s w h e t h e r or n o t h e p o s s e s s e d a treaty right t o c a t c h a n d sell fish under t h e treaties of 1760-61 that e x e m p t e d him f r o m c o m p l i a n c e with t h e regulations.  U n d e r close scrutiny w a s t h e trade clause in t h e treaty. A n  o v e r v i e w of t h e history of t h e treaty reveals that during t h e negotiations leading to t h e treaties, t h e Aboriginal leaders a s k e d for t r u c k h o u s e s "for t h e furnishing t h e m w i t h  necessaries,  in E x c h a n g e  for their  Peltry".  The written  98  document contained  only the  promise by t h e M i ' k m a q not to "Traffic, Barter or E x c h a n g e a n y C o m m o d i t i e s in a n y m a n n e r but with such persons, or t h e M a n g e r of s u c h T r u c k h o u s e s a s shall b e a p p o i n t e d b y His Majesty's Governor." In short, t h e p u r p o s e of t h e clause w a s to e n s u r e p e a c e b e t w e e n t h e M i ' k m a q , w h o previously b e e n allied with t h e F r e n c h , a n d the British. T h e clause obviated t h e n e e d of t h e M i ' k m a q t o trade w i t h t h e e n e m i e s of the British. Initially, Marshall w a s convicted o n all three counts. T h e Court o f A p p e a l s u p h e l d t h e convictions, c o n c l u d i n g that the trade clause did not grant t h e M i ' k m a q a n y rights. T h e S e p t e m b e r 1999 ruling by t h e S u p r e m e Court of C a n a d a ruled there w a s more to t h e treaty t h a n t h e merely the right to bring fish a n d wildlife to t r u c k h o u s e s . A b s e n t f r o m t h e treaties w e r e t h e oral promises m a d e a n d all t h e t e r m s a n d conditions mutually a g r e e d u p o n . T h e Court relied heavily o n t h e phrase "securing necessaries" establishing that w h a t is contemplated w a s not right t o trade generally f o r e c o n o m i c gain, but rather a right to trade f o r necessaries. Further t h e Court n o t e d that t h e right could b e c o n t a i n e d b y regulation within its proper limits. Specifically, catch limits that could r e a s o n a b l y b e e x p e c t e d to produce a moderate livelihood for individual M i ' k m a q families at present-day standards c a n b e established b y regulation a n d e n f o r c e d without violating t h e treaty right. It is this phrasing - m o d e r a t e livelihood - in the ruling that troubled St6:l6 fishers. For t h e m , Marshall is not to b e s e e n a s a template f o r o n - g o i n g treaty relations a m o n g t h e Sto: Id a n d t h e federal a n d provincial g o v e r n m e n t s . N o r d o t h e many St6:l6 fishers w i s h f o r Marshall t o b e a template in future negotiations f o r sale agreements. T h e s e fishers c o n t e n d that t h e ability to profit  99  f r o m t h e s a l m o n fishery is indeed a part o f St6:l6 t r a d i t i o n .  28  Finally, turning to t h e Kapp decision, St6:l6 fishers w e r e h a n d e d a devastating blow w h e n t h e sales a g r e e m e n t they h a d negotiated in t h e s u m m e r of 2 0 0 3 w a s w i t h d r a w n b y D F O in the w a k e of J u d g e Kitchen's July 2 0 0 3 ruling that t h e Aboriginal fishery w a s a race b a s e d fishery a n d therefore illegal u n d e r the Charter o f Rights a n d F r e e d o m s . T h i s w a s the first a g r e e m e n t signed since t h e s u m m e r o f 2 0 0 1 .  According  to t h e court d o c u m e n t s : the Aboriginal Communal Fishing Licences Regulations, Sections 8 and 9 of the Regulations Amending Certain Regulations Made Under the Fisheries Act (Miscellaneous Program), SOR/2002-225 (the "Amending Regulation") and the Aboriginal Fishing Strategy in general violate Section 15 of the Chater of Rights and Freedoms in that they authorize exclusive commercial fishing by an organization whose membership is based on race, a prohibited from of racial discrimination. ([2003] B C P C 0 2 7 9 ) Before the court w e r e a n u m b e r of non-Native commercial fishers w h o , in A u g u s t of 1998, f i s h e d in protest of a n Indian fishery o p e n i n g . A t stake w a s t h e constitutionality of the Aboriginal Fisheries Strategy (AFS) a n d t h e s u b s e q u e n t sales a g r e e m e n t s implemented a s a part of that plan. St6:l6 fishers w e r e left that s u m m e r without t h e a g r e e m e n t f o r the legal sale of salmon. T h e Kapp decision w o u l d b e o v e r t u r n e d t h e next year, a n d a sales a g r e e m e n t b e t w e e n Fisheries a n d O c e a n s a n d St6:l6 fishers w o u l d b e r e a c h e d in t h e s u m m e r of 2 0 0 4 . The Creation of a Commercial Fishery and the Potential for Shared Management In t h e mid to late 1980s St6:l6 fishers p r e s s e d f o r a more active role in t h e m a n a g e m e n t of the fishery. Soowahlie Chief D o u g Kelly s p o k e out in 1986 a b o u t t h e n e e d f o r a "Native partnership" in t h e m a n a g e m e n t of the fishery {Chilliwack Progress,  28  M o r e discussion regarding wealth accumulation is f o u n d in c h a p t e r 6. 100  Wednesday, September 10, 1986). Chief Kelly noted that the Native fishery was the last in line and received the least amount of the catch and the most enforcement. Chief Kelly also pointed out the hatchery projects and stream enhancement projects underway by a number of the St6:l6 bands. According to Chief Kelly, "Projects such as these, clearly demonstrated a responsible attitude towards conservation of salmon on the part of the Native people" (Chilliwack Progress, Wednesday, September 10, 1986). In an effort to obtain the goal of co-management, the St6:l6 Tribal Council submitted a formal fisheries co-management proposal to the Department of Fisheries and Oceans in April of 1988. Their proposal was simply filed away, with no action taken. The implementation of a new AFS in 1992 would give St6:l6 fishers hope for an increased role in managing the fishery as a part of the AFS. Originally the AFS was a seven year program charged with a number of specific goals designed to serve all users of the resources: meeting Sparrow obligations to Natives in a manner which supported resource conservation and strong commercial and recreational sectors phasing in the transition to commercial sale of the Aboriginal catch through limited testing in years one and two involving stakeholders in crafting the strategy funding to Natives to promote maximum employment and involvement in resource conservation clarifying the Aboriginal allocation in order to provide greater stability, predictability and profitability to all sectors To accomplish these goals over 80 agreements were reached with groups representing the majority of BC Aboriginal people. As a part of implementing the AFS, Fisheries and Oceans earmarked $140 million dollars nationally over seven years with most of this funding to go to help develop and implement on-the-job-training programs and to increase Aboriginal participation in fisheries management. To offset any reallocations  101  of fish f r o m t h e commercial sector to the Aboriginal communities, D F O introduced a voluntary License Retirement Program (LRP). T h e L R P w a s to e n s u r e n o increase in the total a m o u n t of fish being harvested o n t h e Pacific Coast. T h e federal g o v e r n m e n t m a d e $7 million dollars available for the L R P . A t total of 7 5 commercial license holders voluntarily retired their licenses in the spring of 1993. O n J u n e 2 9 , 1 9 9 2 D F O a n n o u n c e d that a plan w a s to g o f o r w a r d as a m e a n s of p h a s i n g in the transition to a commercial sale of the Aboriginal catch. A 'Pilot Sale A r r a n g e m e n t ' ( P S A ) w a s established as part of the A F S w h e r e b y various Native groups in British C o l u m b i a a n d e l s e w h e r e w e r e permitted to sell fish subject to a g r e e m e n t s specifying allocations a n d m a n a g e m e n t regimes. T h e a r r a n g e m e n t s w e r e intended to test h o w Native sales w o u l d w o r k within specified allocation levels a n d identify potential p r o b l e m s ( G a r d n e r Pinfold 1994). T h r e e g r o u p s w e r e selected to participate in a p r o g r a m allowing t h e sale of Native-caught fish. T e s t sale a g r e e m e n t s w e r e s i g n e d with the following groups: •  •  •  t h e Lower Fraser Aboriginal Fishery C o m m i s s i o n o n the lower Fraser River representing the St6:l6 Indian Bands (St6:l6 Tribal Council a n d St6:l6 Nation C a n a d a ) a n d the M u s q u e a m a n d T s a w w a s s e n Indian Bands; T s u - m a - u s s Fisheries in the Alberni Inlet-Somass River a r e a o n the west coast of V a n c o u v e r Island representing the T s e s h a h t a n d Opetchesaht, two of t h e N u u - C h a h - N u l t h First Nations; a n d , e a c h of the T s i m s h i a n Tribal Council, the Gitksan a n d W e t ' s u w e t ' e n W a t e r s h e d Authorities, the Nat'oot'en First Nations o n the S k e e n a River.  W h i l e the a g r e e m e n t s negotiated in 1 9 9 2 represented t h e first legal sale of s o c k e y e in over o n e h u n d r e d years, the a g r e e m e n t s w e r e s u p e r c e d e d by a small project c o n d u c t e d in 1986 b e t w e e n D F O a n d the Chehalis B a n d . A s n o t e d in the Chilliwack Progress, Chehalis Indians m a d e fishing history after they b e g a n harvesting  102  s a l m o n commercially o n the Harrison River ( W e d n e s d a y , N o v e m b e r 5, 1986). T h e b a n d received a federal permit to harvest 9,000 c h u m s a l m o n by D e c e m b e r 20, 1986 as part of a surplus c h u m s a l m o n fishery. This m a r k e d the first time c o m m e r c i a l fishing h a d b e e n permitted o n an inland tributary of the Fraser River s y s t e m . Ernie Crey, w h o w a s e m p l o y e d by D F O at the time the Chehalis project w a s a p p r o v e d , e x p l a i n e d to m e that w h a t w a s important to note about the Chehalis project w a s that it w a s not a 'rack harvest' ( m e a n i n g a harvest t a k e n at the hatchery) but a harvest t a k e n in the river. In our c o n v e r s a t i o n regarding the Chehalis fishery, Ernie Crey r e m a r k e d on the n u m b e r of serendipitous events leading to the approval of this fishery; s o m e p e o p l e being in the right place at the right time, while others being a w a y at the right time. Ernie Crey also r e m a r k e d a b o u t h o w he "caught hell" from S a m D o u g l a s w h e n w o r d of the project got out; S a m D o u g l a s w o n d e r i n g w h y Ernie Crey w a s not able to obtain s u c h a proposition for the C h e a m b a n d - his o w n b a n d . T h e historical a g r e e m e n t s signed in 1992 by D F O a n d the various Fraser River Aboriginal g r o u p s authorized the commercial sale of s o c k e y e s a l m o n within specified numerical limits, negotiated e a c h year, a n d in 1992, b a s e d on historical catches a n d fisheries authorities Native a c c o m m o d a t i o n s on harvests in recent y e a r s ( G a r d n e r Pinfold 1994). A s a part of this first a g r e e m e n t negotiated by the newly f o r m e d LFFA, 3 2 5 , 0 0 0 s o c k e y e w e r e allocated to the St6:l6 Tribal Council a n d St6:l6 Nation C a n a d a , collectively. St6:l6 fishers believed they w e r e on the t h r e s h o l d of a turning point in history. All that r e m a i n e d for the formal staffing of an Aboriginal a g e n c y d e s i g n a t e d to o v e r s e e the implementation of the agreement. O n J u n e 30, representatives from St6:l6 Nation C a n a d a (Aboriginal leaders  103  G e o r g e C a m p o ; Ken Malloway; Joe Hall a n d Mike W h e l a n a non-Native biologist e m p l o y e d by St6:l6 Nation C a n a d a ) a l o n g with representatives f r o m the St6:l6 Tribal Council (Aboriginal leaders Clarence Pennier, S a m Douglas, Lester N e d a n d D o u g Kelly) met to d e t e r m i n e w h o w o u l d m a n a g e the newly created b u r e a u c r a c y required to o v e r s e e the pilot sale fishery: T h e Lower Fraser Aboriginal Fisheries Authority ( L F F A ) . Prior to c o m i n g together as part of the LFFA, the St6:l6 Tribal Council a n d 29  St6:l6 Nation C a n a d a o p e r a t e d fisheries departments. Chief D o u g Kelly f r o m S o o w a h l i e told m e the story of h o w Ernie Crey c a m e to be hired to o v e r s e e the newly e m e r g i n g fisheries office. A c c o r d i n g to Chief Kelly, it w a s d e c i d e d that the individual to be hired s h o u l d be St6:l6, should be a f i s h e r m a n , s h o u l d have w o r k e d for the g o v e r n m e n t , s h o u l d k n o w the industry a n d should have m a n a g e m e n t experience. July 1, 1992, Ernie Crey a m e m b e r of the C h e a m b a n d w a s h i r e d .  30  On  Just the d a y before  Ernie Crey h a d resigned from his position as Vice-President of the United Native Nations. Ernie Crey h a d b e e n e m p l o y e d by the Department of Fisheries a n d O c e a n s  T h e n a m e of this entity w o u l d c h a n g e the next year to the Lower Fraser Aboriginal Fisheries C o m m i s s i o n and w o u l d eventually b e c o m e the St6:l6 Fisheries D e p a r t m e n t w h e n the two g r o u p s c a m e together in 1994. 29  U p o n taking the position with the LFFA, Ernie Crey w o u l d find himself at home, finally. Forcibly r e m o v e d from his h o m e in H o p e at the a g e of 12 after the d e a t h of his father a n d his mother's decline, Ernie Crey w a s also r e m o v e d f r o m the St6:l6 w a y of life he h a d learned from his parents. O n w h a t c a n only be d e s c r i b e d a s a S a t u r d a y adventure, Ernie Crey took m e by his uncle's h o m e in H o p e as he delivered fish before h e a d i n g to Lester Ned's boat below Mission Bridge. A s w e drove, Ernie Crey told m e about his family; about h o w his father w o u l d sit in the park in H o p e a n d visit, s p e a k i n g fluent H a l q ; e m e y l e m with t h o s e c o m i n g up-river a n d fluent N'laka'pamux with those c o m i n g d o w n river. If the p e r s o n with w h o m he w a s talking s p o k e neither language, he w o u l d c o m m u n i c a t e w i t h t h e m in C h i n o o k j a r g o n . Ernie Crey a s k e d his f a t h e r to t e a c h him 'his' language, but his father insisted on Ernie a n d the children s p e a k i n g English, as English w o u l d be the l a n g u a g e they w o u l d n e e d to get by in the w o r l d . 3 0  104  f r o m 1984 to 1990 as a n Aboriginal extension officer. T h r o u g h this position with Fisheries a n d O c e a n s he h a d b e c o m e well k n o w n to St6:l6 fishers. W i t h i n two w e e k s of taking the position Ernie Crey f o u n d himself d e a l i n g with a chaotic fishery a s well as dealing with a court injunction filed by the Y a l e b a n d protesting St6:l6 fishing in the c a n y o n . A n o n - g o i n g battle has existed b e t w e e n the St6:l6 Nation a n d the Y a l e b a n d regarding fishing in the c a n y o n . Two-thirds of the Sto:Id fishery is c o n d u c t e d in the c a n y o n , w h e r e s u c h highliners a s Ken Malloway have f i s h e d for m a n y years. In my interviews with Sto: Id fishers I w a s told of s o m e the fist fights that h a v e t a k e n place between Sto:Id fishers a n d Y a l e b a n d m e m b e r s over the c a n y o n fishery. Ken Malloway talked to me a b o u t tangling with the H o p e brothers from Y a l e . Crisca Bierwert notes h o w during the Y a l e band's court case, Ernie Crey took a g r o u p of supporters to lunch including several chiefs in a t t e n d a n c e at the trial. W r i t e s Bierwert, "he facilitated a council-like discussion with the chiefs while a n o t h e r m e m b e r of his m a n a g e m e n t t e a m p u m p e d in advice a n d information via the cellular phone" (1999:249). In July of 1992 Yale Indians claimed that the newly f o r m e d L F F A h a d not received permission f r o m the Yale B a n d to fish in the Fraser C a n y o n .  31  O n July 1 6  th  l n 1879 R e s e r v e C o m m i s s i o n e r G.M. Sproat reserved fishing stations in the lower c a n y o n , t h e s e reserves today being held by the Yale Band (aside f r o m the o n e reserve transferred in 1913 to the Ohamil b a n d . M e m b e r s of the Y a l e B a n d h a v e consistently tried to force Sto: Id fishers out of the c a n y o n a n d w h a t they say is their territory, a c c e s s to w h i c h they h a v e not granted to outside fishers. Keith Carlson a n d S a r a h Eustace p r e p a r e d a report for the Sto:Id Nation (while e m p l o y e d with the Nation) t h a t details t h e c o n t e n o u s situation. In July of 2 0 0 2 t h e Y a l e B a n d (or Y a l e First Nation as they refer to t h e m s e l v e s ) signed a m e m o r a n d u m of u n d e r s t a n d i n g with the representatives f r o m the federal a n d provincial g o v e r n m e n t s implementing a land protection treaty-related measure, covering 181 hectares of C r o w n land in the Hills Bar a r e a near the Y a l e First Nation community. I w a s present at the Sto:Id fisheries meeting w h e n a copy of the a n n o u n c e m e n t a n d a c c o m p a n y i n g m a p of the a r e a w a s distributed to the b a n d chiefs a n d fisheries representatives present. T h e r e w a s a great 3 1  105  the b a n d petitioned t h e court for a n injunction preventing other Natives f r o m fishing in w h a t they c l a i m e d w e r e their waters (Province, July 17, 1992). T h e Y a l e b a n d w a s not g r a n t e d their injunction a n d t h e fishery w e n t o n a s s c h e d u l e d t h e next w e e k e n d . T h e Y a l e b a n d w o u l d , a g a i n in 1995, s e e k exclusive fishing rights in t h e c a n y o n . Y a l e b a n d m e m b e r s h a d h o p e d to reach a fisheries a g r e e m e n t in treaty talks with federal a n d provincial negotiators in J u n e of 1995 (Chilliwack Progress, April 1, 1995). T h e Y a l e b a n d took their plea, yet again, to court in 1998 s e e k i n g a n o t h e r injunction to stop t h e D F O f r o m issuing licenses to other St6:l6 b a n d s fishing in their traditional territory. T h e b a n d claimed it h a d o c c u p i e d that territory "from time immemorial" (Chilliwack Progress, M a y 5, 1998). A n d a g a i n in 2 0 0 2 t h e Y a l e B a n d tried to assert a claim over t h e c a n y o n fishery by using a "site specific" fishing claim a s their defense in court w h e n several m e m b e r s of t h e b a n d a p p e a r e d to a n s w e r c h a r g e s laid in t h e  deal of discussion regarding t h e fact that the a r e a under q u e s t i o n contains St6:l6 fishing spots. Reporting o n Yale's actions in t h e October 2 0 0 2 issue of t h e S q w e l q w e l s Y e St6:l6, Chief R o n J o h n from Chawathil noted that t h e Y a l e B a n d w a s laying claim to all t h e c a n y o n fishing sites that h a d b e e n u s e d in c o m m o n "centuries u p o n centuries." Note Chief J o h n , " W e h a v e several grave sites up there t o prove it" (page 9 ) . A g a i n that s u m m e r I w a s present in t h e courtroom in Chilliwack w h e r e m e m b e r s of t h e H o p e family f r o m Y a l e f a c e d c h a r g e s of fishing during a closed time. A s a part of their d e f e n s e , they s e e k to establish they possess a site specific fishing right a n d p r e s e n t e d e v i d e n c e s e e k i n g t o put forth t h e fact that their closest family c o n n e c t i o n s a r e with First Nations p e o p l e in t h e c a n y o n a r e a a b o v e t h e m - N'laka'pamux territory. T h e y w e r e s e e k i n g to disconnect f r o m their St6:l6 relatives in a n effort to nullify a n y St6:l6 fishing rights in t h e c a n y o n . In 1 9 0 5 t h e B.C. superintendent of Indian Affairs met with a large g r o u p of St6:l6 leaders in t h e Fraser C a n y o n a n d m a p p e d f a m i l y - o w n e d fishing sites. Most of t h e o w n e r s of t h e sites resided in d o w n river communities (Carlson 2 0 0 1 : 5 9 ) . T h e n a m e s of t h e c a n y o n highliners d o not a p p e a r o n t h e map, a fact that w a s brought up in court testimony a s part of t h e case I o b s e r v e d . However, e t h n o g r a p h i e s a n d other w o r k s written about t h e St6:l6 make clear t h e privileges e x t e n d e d to family m e m b e r s . T h e r e f o r e t h e fact that t h e last n a m e of Malloway d o e s not a p p e a r o n t h e m a p d o e s not necessarily m e a n he h a s not family connection in t h e c a n y o n . N a m e s a s s o c i a t e d with families in C h e a m d o a p p e a r o n t h e m a p . 106  summer of 2000. At present, the final ruling in that case remains pending. Despite Yale's attempt to halt the sale fishery in 1992, the first legal sale of inriver caught salmon in over one hundred years began in a whirlwind fashion. From their base in the old Tzeachten community hall, Ernie Crey and his team set about processing requests from fishermen for designation cards and information regarding where to fish. A map of the river adorned with stick pins marking fishing spots hung on the wall. Notes Ernie Crey in one of the many discussions we had regarding the PSA, the number of "licensed" fishermen would grow from approximately 800 to over 1500 as a result of the Pilot Sale fishery. Newspaper headlines recorded this monumental moment in time: "Indians fish without fearing the law for the first time" (Vancouver Sun, July, 1992). Scott Simpson, Sun Native Affairs reporter writes that: When Chief Sam Douglas nosed his aluminum punt out into the swirling olive current of the Fraser River at dawn on Friday, it didn't feel like a particularly special morning. Up and down the Fraser he could hear the faint buzz of power boats as dozens of other St6:l6 Indians skittered out at daylight to see if salmon had tangled themselves in the nets laid out the evening before in the shallow eddies Quoting Sam Douglas, "Everyone has asked me the same question, how it felt. I guess I've felt for so long that it was our right that didn't really faze me that on that one day we were going to be able to sell them." Three years ago, an Indian-caught sockeye might have fetched $2 on the black market, bought at the back door by fish markets, small-time processors or pub patrons. This year the same fish is worth $1.60 a pound and for the firsttime in his 51 years, Sam Douglas doesn't have to look over his shoulder when he offers it for sale. Quoting Sam Douglas, "We can load them up in the back of the pickups and we don't really care who sees us with a fish-tote on the back. Before if we drove down the road with a fish-tote, fisheries was right behind us, following us to where we were going." (Vancouver Sun, July, 1992) But the program in 1992 got off to a rocky start as the early Stuart sockeye were already running up-river when the agreements were announced in late June (Pearse 1992). This rocky start was compounded by the fact that the 1991 season had been  107  m a r r e d by conflict a n d tension as a standoff h a d existed b e t w e e n Indian fishers a n d D F O a g a i n , over conservation m e a s u r e s concentrated on the early Stuart run. S o m e Indian fishers refused to obtain licences a n d there w e r e m a n y violations regarding closures, net sizes, net markings a n d illegal gear. Pearse notes that the first year of the P S A w a s p l a g u e d with n u m e r o u s problems, specifically up river in the St6:l6 a r e a f r o m Langley to Sawmill Creek a n d further upstream in the c a n y o n w h e r e no a g r e e m e n t s w e r e in p l a c e .  32  In addition to the u n p r e c e d e n t e d n u m b e r of fishers, this  first year w a s b e s o u g h t with m a n a g e m e n t confusion a n d w e a k surveillance a n d enforcement.  A c c o r d i n g to Pearse there w e r e problems of o v e r c r o w d i n g , intimidation  a n d e v e n violence e n s u e d . T h e r e w e r e many reports of stolen fish a n d fishing g e a r (1992:17). Pearse reported that the peak count of nets in the lower river d o u b l e d f r o m 4 3 4 in 1991 to 8 8 5 in 1992, straining the established system of tenure regarding fishing places (1992:17). A c c o r d i n g to Souther, in her discussion of the A F S , the fishing effort increased by a n estimated seventy-five percent d u e to the influx of individual fishers s e e k i n g to 'make their fortune' in the n e w commercial in-river fishery (1993).  Long-  time fishers e x p r e s s e d c o n c e r n over the c r o w d e d situation o n the river a n d the loss of fish to t h o s e fishing strictly for f o o d a n d to the w i n d - d r i e d fishers at the "Elder's Camps" ( C r a n m e r 1995). In 1992 c a m p o w n e r s w e r e pressured by n e w c o m e r s a n d elders c o m p l a i n e d their fishing sites w e r e be pre-empted by outsiders (Pearse 1992:17). Problems c o n t i n u e d to mount after the first year of the PSA. Reports of 'missing fish' b e g a n to a p p e a r in the n e w s p a p e r s a n d industrial fishers b l a m e d Native f i s h e r m e n  Bands up river from the St6:l6 were not part of the Pilot Sale project and this resulted a contentious relationship between those bands and the St6:l6 bands. 32  108  f i s h e r m e n a n d t h e newly instituted PSA. Notes the Chilliwack  Progress:  A c c u s a t i o n s are almost o u t n u m b e r i n g the s a l m o n as t h e D F O scrambles to account for the alleged " d i s a p p e a r a n c e of h u n d r e d s of t h o u s a n d s of Fraser River Sockeye. Latest g o v e r n m e n t figures estimate about 3 0 0 , 0 0 fish are missing, but the United Fishermen a n d Allied W o r k e r s ' Union ( U F A W U ) h a s said that possibly a s many as 1,000,000 fish h a v e b e e n illegally caught. ( W e d n e s d a y , A u g u s t 2 6 , 1992) Ernie Crey, fisheries m a n a g e r of the Lower Fraser Fishing Authority c h a l k e d the missing fish p h e n o m e o n u p to Mother Nature a n d d e n i e d that illegal fishing by St6:l6 Natives could a c c o u n t for the missing sockeye. Crey noted that patrols of t h e river a n d Native fisheries m a d e it impossible for the Native f i s h e r m e n to h a v e harvested t h o u s a n d s o f f i s h illegally without a n y o n e noticing (Chilliwak Progress,  Wednesday,  A u g u s t 2 6 , 1992). Explains Crey in his letter to the Editor of t h e Vancouver Sun: Federal fisheries m a n a g e r s a n n o u n c e that they are unable to account f o r b e t w e e n o n e million a n d 1.5 million Fraser b o u n d s a l m o n , a n d your n e w s p a p e r of S e p t e m b e r 12 [1992] d e v o t e s s p a c e o n its front p a g e , o n p a g e B1 a n d B2 to allegations about e n f o r c e m e n t p r o b l e m s a n d "Indian Poaching." Forget f o r a m o m e n t that n o w h e r e in your articles d o y o u mention that Reform M P J o h n C u m m i n s , w h o so bravely unveiled t h e "leaked" g o v e r n m e n t d o c u m e n t t o your reporters, w a s o n e of t h e f o u n d e r s of t h e Fisheries Survival Coalition, the single-issue organization o p p o s i n g Aboriginal fishers. Forget for a m o m e n t that it w o u l d take a b o u t 10,000 pickup trucks fully l o a d e d with s o c k e y e in a b u m p e r to b u m p e r c o n v o y f r o m Chilliwack to V a n c o u v e r with c r a z e d Indians at the w h e e l of e a c h truck, in order to steal that m a n y s a l m o n . A n d w e w o u l d h a v e h a d to pull this off without a n y b o d y noticing. A n d forget for a m o m e n t that in t h e brief century since the likes of Mr. C u m m i n s a s s u m e d control of Fraser River salmon m a n a g e m e n t f r o m the lying, c h e a t i n g , stealing, p o a c h i n g Indians, four fifths of the Fraser River's s o c k e y e salmon have "gone missing" a l o n g with four-fifths of the pink s a l m o n , half the c h u m s a l m o n , six-sevenths of the coho, a n d four-fifths of the c h i n o o k s a l m o n . (Ernie Crey, S e p t e m b e r 2 2 , 1994)  109  University of British C o l u m b i a Economics professor Dr. Peter P e a r s e a n d s e m i retired fisheries scientist Dr. Peter Larkin w e r e called u p o n to investigate t h e mystery of the missing fish. A s a result of their investigation, Pearse a n d Larkin a d v i s e d that a n estimated total of 4 8 2 , 0 0 0 s o c k e y e believed t o be in t h e river b o u n d for their natal streams failed to reach their s p a w n i n g grounds; not t h e 1,000,000 alleged b y c o m m e r c i a l fishing groups. T h e report d i d support t h e fact that most of t h e missing fish a p p e a r e d to b e t a k e n b e t w e e n Mission a n d Lytton - w h i c h m a d e up t h e bulk of t h e P S A fishing a r e a . Notes Pearse a n d Larkin: W e are confident t h e bulk of t h e missing fish resulted f r o m intense fishing o n t h e river last summer. Most of these fish w e r e t a k e n in u n r e c o r d e d catches, but s o m e died from stress after fighting their w a y t h r o u g h a gauntlet of nets. W e cannot s a y w h o t o o k t h e s e fish or h o w they w e r e d i s p o s e d of or w h e r e they went. N o r c a n w e s a y they w h e t h e r they w e r e c a u g h t illegally. (Chilliwack Times, T u e s d a y , D e c e m b e r 8, 1 9 9 2 ) Pearse a n d Larkin further r e m a r k e d o n t h e first P S A experimental year, b y noting that the "Indian fishing a g r e e m e n t s , w h i c h allowed t h e L F F A to m a n a g e their o w n fisheries a n d sell their catch commercially for t h e first time ever, w o r k e d well in s o m e places, but poorly in others. T h e report c h a l k e d t h e problems in t h e first year of t h e fishery up to the fact that a r r a n g e m e n t s w e r e m a d e at t h e last minute with insufficient preparation. St6:l6 fishers felt they w e r e indeed vindicated b y t h e Pearse/Larkin report.  Essentially  the report stated that 2 0 1 , 0 0 0 of t h e missing fish w e r e c a u g h t in gillnets, while another 2 4 8 , 0 0 0 died in t h e river, half from natural c a u s e s a n d half f r o m 'gillnet' i n d u c e d stress. A n o t h e r 3 3 , 0 0 0 w e r e a c c o u n t e d for in errors m a d e in t h e s p a w n i n g b e d counts (Vancouver Sun, D e c e m b e r 8, 1992). T h e report w a s indeed critical of t h e w a y t h e fishery h a d b e e n c o n d u c t e d that first year, but t h e report m a d e it clear that far f e w e r  110  fish w e r e missing t h a n s o m e commercial fishing g r o u p s claimed. C h a n g e s w e r e m a d e in the p r o g r a m in a n effort to a d d r e s s the p r o b l e m s present in the first year, such as the problem of u n r e c o r d e d catches. A m o n g the c h a n g e s m a d e w e r e the instituting of a plan to count all salmon immediately u p o n landing, the creation of a Aboriginal enforcement unit a n d a c h a n g e in the structure of the licensing a s part of the A F S . Looking first at the n e w licensing structure, issued on J u n e 16, 1993: His Excellency the G o v e r n o r General in Council, o n the r e c o m m e n d a t i o n s of the Minister of Fisheries a n d O c e a n s , pursuant to section 4 3 of the Fisheries Act, is p l e a s e d to hereby revoke the Aboriginal Fisheries A g r e e m e n t s Regulations, m a d e by Order in Council P.C. 1 9 2 - 1 4 5 6 of J u n e 26, 1992 a n d to make the a n n e x e d Regulations respecting fishing carried o n in a c c o r d a n c e with Aboriginal c o m m u n a l fishing licenses, in substitution therefore. (Fisheries Act S O R / 9 3 - 3 3 2 ) Previously licenses w e r e issued directly by D F O to individual St6:l6 fishers. U n d e r the n e w licensing regulation, c o m m u n a l fishing licenses w o u l d be issued as d e s c r i b e d in the D F O B a c k g r o u n d e r d a t e d March 26, 1993: All Aboriginal fisheries in 1993 will be g o v e r n e d by w a y of C o m m u n a l Licenses g r a n t e d to B a n d s or Tribal Councils. Each b a n d or council will be responsible for issuing designation cards to all fishers in their area. Other significant c h a n g e s w e r e instituted in 1993 as spelled out in the M a r c h 26, 1993 B a c k g r o u n d e r included: controls on fishing effort, such as a limit o n the overall n u m b e r of nets being f i s h e d , w e r e included in negotiation of fishery a g r e e m e n t s , s t a n d a r d i z e d marking required on fishing gear, a n d fishing plans to establish w h e r e a n d w h e n fishing w o u l d be authorized. all fish c a u g h t under A F S agreements, w h e t h e r used for sale, personal c o n s u m p t i o n , c e r e m o n i a l , or social p u r p o s e s will be a c c o u n t e d for in a c o m p r e h e n s i v e catch monitoring program. M a n d a t o r y reporting provisions to be negotiated as a c o m p o n e n t of fisheries agreements. A d h e r e n c e to reporting requirements will be the responsibility of Aboriginal g r o u p s t h r o u g h b a n d a p p o i n t e d observers a n d Native Guardians, a n d to be strictly e n f o r c e d by 111  Fisheries Officers. Aboriginal fishing authorities required to a s s u r e t h e d e p a r t m e n t that all fishers in compliance. delivery of fish c a u g h t under the authority of c o m m u n a l licenses to d e s i g n a t e d landing sites to be required a n d fishers to declare to t h e landings site they intend to u s e w h e n receiving their designation cards (e.g. w h e r e will y o u be fishing). W h e r e sales permitted, fish m a y only be sold to p e r s o n s holding a Provincial buyer's license to e n s u r e full c o m p l i a n c e with reporting o f f i s h , observers to be in place at e a c h landing site during fisheries o p e n i n g s until all fish a r e landed. P a r a m o u n t a m o n g the c h a n g e s in 1 9 9 3 w a s the creation of a n e w enforcement t e a m c o m p r i s e d of Aboriginal fisheries officers. In M a y of ,1993, f o u r t e e n Aboriginal fisheries officers participated in graduation c e r e m o n i e s after being trained by the federal g o v e r n m e n t to monitor a n d enforce fishing regulations.  LFFA-appointed  officers included: W a y n e Bobb, Jr. (Seabird Island), T o d d C h a p m a n ( S k a w a h l o o k ) , Clay Charlie (Chehalis), W a y n e Kelly, Jr. (Soowahile), A n t h o n y M a l l o w a y (Sardis), a n d Lester N e d , Jr. (Sumas). This newly g r a d u a t e d group, w a s believed to b e the first in C a n a d a . T h i s accomplishment w a s heralded as "a start of a n e w b e g i n n i n g for St6:l6 b a n d s a l o n g t h e Fraser River," as reported by W a y n e Bobb, Sr. to the Chilliwack Progress, W e d n e s d a y , M a y 5, 1993. In addition to D F O ' s a d d r e s s i n g the problems of the 1992 fishing s e a s o n , the St6:l6 t h e m s e l v e s s o u g h t to deal with a n u m b e r of c o n c e r n s arising that first year. In 1993 a c o m m u n i t y consultation process w a s instituted in a n effort to d e t e r m i n e the problems a n d n e e d s arising f r o m t h e P S A in a n effort to a d d r e s s those p r o b l e m s a n d n e e d s before the 1993 s o c k e y e fishery. A series of c o m m u n i t y hearings w e r e held t h r o u g h o u t St6:l6 territory w h e r e i n a n u m b e r of issues w e r e a d d r e s s e d including the n u m b e r of nets per fisherman/family; the possibility of habitat restoration projects as part of the A F S ; t h e protection of f o o d fisheries, in particular t h e dry rack fishery;  112  equitable distribution of fish; t h e n u m b e r of n e w c o m e r s o n t h e river; to possible areas of e c o n o m i c d e v e l o p m e n t related to t h e commercial fishery. A c o m p r e h e n s i v e , two-part report w a s p r e p a r e d by T e r r y Glavin in his capacity a s public liaison f o r t h e LFFA. T h e report, entitled Rebuidling St6:ld Fisheries Law: Report of the Community  Consultation,  n o t e d t h e c o n c e r n s e x p r e s s e d within t h e m a n y affiliated St6:l6 b a n d s a n d c o v e r e d a w i d e range of categories: the p r o b l e m s c a u s e d by t h e existence of "signatory" a n d "non-signatory" b a n d s (differing fishing times, conflicts over sales; the dramatic v o l u m e of "new" f i s h e r m e n o n t h e river; the perception that m a n y U.S. citizens w e r e s u d d e n l y a p p e a r i n g o n t h e fishing grounds; difficulties in c o m m u n i c a t i o n between L F F A a n d St6:l6 f i s h e r m e n ; a n d the e m e r g e n c e of volatile a n d w i d e s p r e a d fishing-site disputes; a c c e s s to t h e fishery a n d questions about t h e nature of t h e right to fish; limit o n n u m b e r of nets in t h e river; a n d n e e d to respect a c c u s t o m e d family held fishing sites T h e ultimate goal of t h e process w a s to d e v e l o p a fisheries 'code' or similar statute - in effect St6:l6 fisheries law (Glavin 1993:8). N o authority existed to deal with this issues, a s Ernie Crey explained to m e a n d to countless n e w fishers during his t e n u r e m a n a g i n g the fishery, without a n y collective mandate f r o m t h e n u m e r o u s St6:l6 b a n d s , t h e function of t h e L F F A a n d all of its s u b s e q u e n t incarnations, w a s to prosecute t h e terms a n d conditions of t h e fisheries a g r e e m e n t s not settle disputes arising a m o n g t h e fishers. T h e c o m m u n i t y consultations h a d b e e n d e s i g n e d to establish a n authority to handle disputes, but n o formal c o d e w a s ever d e v e l o p e d . M a n y of t h e s e s a m e c o n c e r n s w o u l d be a d d r e s s e d a g a i n in t h e s u m m e r of 2 0 0 2 . A n d a s in 1 9 9 3 , most, if not all of t h e 2 0 0 2 c o n c e r n s w e n t u n - a d d r e s s e d . St6:l6 fishers f i s h e d under sales a g r e e m e n t s in t h e years 1 9 9 2 t h r o u g h 1997. A n a g r e e m e n t w a s not r e a c h e d a g a i n until 2 0 0 1 . Fraught with p r o b l e m s over allocation 113  a m o u n t s , priorities over the fishing areas a n d fears regarding the extinguishment of Aboriginal rights negotiations failed to p r o d u c e s i g n e d a g r e e m e n t s in the years after 1997. C o m p o u n d i n g the problems just listed, w a s the increase in the t h r e s h o l d n u m b e r of signatory b a n d s m a n d a t e d by D F O . In an effort to bring a s m a n y St6:l6 b a n d s a s possible into compliance, D F O b e g a n to require a greater n u m b e r of b a n d s participating in the a g r e e m e n t s before allowing any of the b a n d s to participate. T h i s p o s e d a significant problem as large b a n d s such as S e a b i r d Island s t o p p e d signing a g r e e m e n t s in 1997 a n d t h e often d e s c r i b e d militant C h e a m b a n d also c e a s e d participation in the program. In 1997 there w e r e approximately 1417 fishers licensed to participation in the "sale fishery." A n o t h e r 124 w e r e licensed as part of a f o o d fish only fishery; including 9 4 fishers f r o m C h e a m .  Industrial Fishers and the Pilot Sale Arrangement T h e Aboriginal Fisheries Strategy a n d the Pilot Sale project, d r e w h e a v y criticism from the commercial fishing sector. By the time of the 1992 A F S , the industrial fishery h a d g o n e t h r o u g h a n u m b e r of c h a n g e s including a b u y - b a c k p r o g r a m as a part of the Davis Plan implemented in 1968 as part of an effort to r e d u c e the n u m b e r of vessels in the fishery. A reduction in the size of the industrial s a l m o n fleet w o u l d c o n t i n u e t h r o u g h the 1970s, resulting in only 4,707 vessels remaining, d o w n f r o m 6,104 in 1969 w h e n the Davis Plan w a s implemented ( M e g g s 1991). In reaction to yet a n o t h e r potential erosion in the industrial fishery, in 1992 the Pacific Fisheries Alliance a n d the B.C. Fisheries Survival Coalition sought an injunction in B.C. S u p r e m e Court to s u s p e n d the A F S in the Lower Fraser o n the g r o u n d s that "1.2 million" s o c k e y e h a d "gone missing" in the Lower Fraser River's tribal fisheries. Notes Ernie Crey in his  114  s p e e c h to the A c t i o n A g e n d a for Self-Government conference, "Their c a s e w a s thrown out of court, but the d a m a g e w a s d o n e " ( N o v e m b e r 7, 1993). In the m o n t h s prior to Ernie Crey's s p e e c h to the S e l f - G o v e r n a n c e conference, municipalities in B.C. including M a p l e Ridge a n d Langley t o w n s h i p had picked up on the B.C. Fisheries Survival Coalition's call for an e n d to special fishing rights for Indians, s e n d i n g letters of protest to Fisheries Minister J o h n Crosbie (Vancouver Sun, Saturday, April 2 4 , 1993). In light of the missing fish p h e n o m e n a of 1992 a n d 1994, additional restructuring of the industrial s a l m o n fleet w a s brought a b o u t in 1996 with the implementation of the Mifflin Plan. Prior to the Mifflin Plan, there w e r e over 4 0 0 0 licensed boats of f o u r gear types: seiners, trailers, gillnetters, a n d combination gillnet-troll vessels ( C o p e s 1997). T h e Mifflin Plan included a p r o g r a m of voluntary retirement t h r o u g h license buy-backs a s well as a p r o g r a m of a r e a licensing. Under this a r e a licensing p r o g r a m fishers could only fish in a limited g e o g r a p h i c a r e a without purchasing or "stacking" additional licenses. U n d e r this plan, 'combination' boats w e r e b a n n e d a n d t h o s e w h o previously f i s h e d both troll a n d gillnet gear w e r e f o r c e d to c h o o s e just o n e unless licenses w e r e 'stacked' (Power 2 0 0 3 ) . A s industrial fishers f a c e d the c h a n g e s incorporated in the Mifflin Plan, they also f a c e d the continuation of the pilot sale p r o g r a m . A s part of what they v i e w e d a s survival tactics, industrial fishers a d o p t e d m a n y of the strategies that h a d b e e n so successful for the Aboriginal fishers. Industrial fishers protested in the streets of d o w n t o w n V a n c o u v e r , placed full p a g e d ads in a r e a n e w s p a p e r s a n d turned to the courts for relief. In J u n e of 1995, industrial s a l m o n fishers s u e d the federal g o v e r n m e n t for mism a n a g i n g the s a l m o n fishery on w h i c h they d e p e n d e d . T h e y alleged that St6:l6 fishers  115  took t h e fish that w e r e lost u n d e r b u n g l e d D F O m a n a g e m e n t {Chilliwack  Progress,  W e d n e s d a y , J u n e 7 1995). In t h e fall of that s a m e year, industrial fishers strung nets a c r o s s a d o w n t o w n V a n c o u v e r street a n d o c c u p i e d D F O ' s fourth-floor offices after ripping t h e d o o r s off t h e federal fisheries department Pacific region h e a d q u a r t e r s (Vancouver  Sun, S u n d a y , September 16, 1995). B.C. Survival Coalition executive  director Phil Eidsvik e x p l a i n e d that "non-Native c o m m e r c i a l f i s h e r s couldn't sit a r o u n d a n y longer a n d w a t c h Natives s c o o p s o c k e y e from t h e Fraser River. Eidsvik also d e m a n d e d t h e e n d to t h e four-year-old (at that time) Aboriginal fishing strategy that h a v e c o m m e r c i a l Native fishers priority over non-Aboriginals (Vancouver  Sun, Sunday,  S e p t e m b e r 16, 1995). In a n effort to drive h o m e their point regarding t h e perceived inequity inherent in t h e A F S , industrial fishers took out a full p a g e a d in t h e Province, a V a n c o u v e r n e w s p a p e r , t o illustrate 'the facts' r e g a r d i n g t h e s a l m o n f i s h e r y a s t h e y s a w t h e m (see Figure 3). A g a i n in 1998, industrial fishers fished in protest w h a t they called t h e c o n t i n u a t i o n o f a "race b a s e d " Aboriginal fishery. A t t h e time t h e fishers put their nets in t h e water, t h e fishery w a s closed to t h e industrial sector but o p e n to the M u s q u e a m , Burrard a n d T s a w w a s s e n Indian b a n d s u n d e r t h e authority of t h e A b o r i g i n a l C o m m u n a l fishing License Regulations. T h e industrial fishers w e r e c h a r g e d with violating federal fisheries regulations. In 2 0 0 3 their conviction w a s o v e r t u r n e d w h e n J u d g e Kitchen ruled that t h e A F S w a s , a m o n g other things, a race b a s e d fishery a n d therefore illegal u n d e r t h e Charter o f Rights a n d F r e e d o m s . Aboriginal sales occur only if industrial sales occur at t h e mouth of t h e river a n d allocations are c a p p e d by a percentage f o r m u l a of t h e industrial catch (TAC).  116  Figure Figure 3. Industrial Fishers Respond The Province, Friday S e p t e m b e r 15, 1 9 9 5 Friday, September IS, 1995  The Province  A2  The Facts about the Fraser River Salmon Fishery Actual Catches to Sept 11795 (total run 5 million)  The Storlo/Musqueam have enjoyed a private commercial fishery since 1992. Other Canadians who attempt to fish in the Sto:Io/Musqueam-onIy commercial fishery are subject to criminal prosecution by the Department of Fisheries.  When the Fraser River sockeye salmon run was reduced from 16.4 million sockeye in 1994 to 5 million in 199S the ailCanadian commercialfleetcut their harvest by 9.5 million sockeye.  The  Storlo/Musqueam  refused to reduce their commercial harvest claiming that their commercial fishery receives the same Constitutional protection enjoyed by the native food fishery.  Days of fishing on the Fraser (.'nne nth to September 12/9S)  The Storlo/Musqueam  claim they haven't had enough fishing time yet (hey fished 37 days since mid-June, including 17 straight days beginning August 16th.  So fax this year, the  Sto:lo/Musqueam-only commercial fishery has caught 36% of the total Canadian Fraser River sockeye harvest. They make up less than 0.2% of B.C.'s population.  Some argue that  this Sto:lo/Musqueam-only commercial fishery is a result of the Supreme Court of Canada decision in Sparrow. They deceive you.  The courts have ruled that there is no aboriginal right to sell fish  Net days of fishing on the Fraser (June 17th to September 12/95) (t net day = 1 net fishing for 24 hours)  but "that is not to say persons of aboriginal ancestry are precluded from taking part, with other Canadians, in the commercial fishery. But they must be subject to the same rules as other Canadians who seek a livelihood from that resource." {Regina v. Van der Peel)  This judgement  was no surprise since over 30% of the participants in the all-Canadian commercialfisheryare aboriginal. This includes many Sto:lo and the majority of the Musqueam who alsofishin the Sto:lo/Musqueam-onIy commercial fishery.  One Canada, One Law*  commercial fishery for all Is that too much to ask? Paid for without taxpayer dollars by concerned Canadians.  117  If there is n o industrial fishery at the mouth then there is no in-river Aboriginal commercial sale. T h e following table reflects t h e actual catch data for t h e St6:l6 s o c k e y e fisheries in t h e years a sale a g r e e m e n t w a s signed c o m p a r e d with negotiated allotment totals. T h e data reflect that t h e fears a n d concerns of t h e industrial sector w e r e b a s e d more o n their specific understanding of entitlement incumbent in t h e regulations of late 1880s than actual catch data. T h e data t a k e n from 'sales' years include totals available for f o o d , social a n d ceremonial uses as well. Table 5. Catch Data For Fraser River Sockeye Year  Aboriginal Catch  Aboriginal Allotment  1992  227,812  325,000 includes Katzie and Yale  1993  430,900  620,000 includes Musqueam.Tsawwassen, Burrard & Kwayhquitlam, Katzie, Chehalis, Yale  1994  358,355  500,000 includes Katzie, Yale, Chehalis  1995  326,700  500,000 includes Katzie, Yale  1996  296,631  *350,000 includes Katzie, Yale  1997  403,716  *350,000 includes Katzie, Yale  2001  215,126  *350,000 includes Katzie, Yale  Compiled from data from Fisheries & Oceans Canada *base amount plus share of Canadian TAC Summary and Discussion In summary, regulations a d o p t e d in 1888 divided t h e Native fishery into t h e  " T o t a l s represent catches for the area a b o v e Mission Bridge to Sawmill Creek; 'traditional' St6:l6 fishing territory w h e r e a s allotments cover a r e a from Port M a n n Bridge to Sawmill Creek. 118  categories of commercial fishery a n d f o o d fishery, m a n d a t e d t h e implementation of a licensing s y s t e m , o u t l a w e d t h e sale of f i s h n o t c a u g h t u n d e r licenses issued f o r t h e tidal a r e a s of t h e river a n d stripped Aboriginal peoples f r o m their role a s m a n a g e r s of the resource. St6:l6 fishers c o n t i n u e d to fish a n d sell their c a t c h a n d looked to t h e courts for relief from t h e e c o n o m i c disenfranchisement imposed by t h o s e early regulations. T h r o u g h t h e courts c h a n g e s in t h e Aboriginal fishery h a v e c o m e . T h e implementation of t h e n e w Aboriginal Fisheries Strategy h a s h a d far r e a c h i n g effects o n t h e profile o n t h e Native fishery, t h e most important being t h e potential for significant c h a n g e s in t h e relationship between Native fishers a n d federal fishing authorities. M a n y St6:l6 fishers continue to hold out h o p e for t h e continuation of a legal sale fishery. Negotiations continue e a c h year for a sale agreement. However, t h e courts h a v e not solved all t h e problems. In fact, o n s o m e level they h a v e i n c r e a s e d t h e p o w e r of t h e g o v e r n m e n t to infringe o n A b o r i g i n a l fisheries in the n a m e of conservation with Sparrow being t h e basis of t h e actions for both sides. In 1998 Elders w e r e c h a s e d a w a y from their drying racks in t h e Fraser C a n y o n by a r m e d fisheries officers w h e n t h e river w a s closed to fishing to protect t h e early Stuart s o c k e y e r u n ( S q w e ' q w e l s Y e St6:l6, 1998:12). Placing their trust in t h e courts, St6:l6 p e o p l e s f i s h e d in d e f i a n c e of D F O ' s decision to close t h e river in a n effort t o provide fish for their Elders. Notes K e n Malloway in a meeting b e t w e e n St6:l6 leaders a n d D F O at t h e c a n y o n fishing c a m p of G r a n d Chief A r c h i e C h a r l e s : W e k n o w Delgamuuku, Sparrow a n d Guerin - this is not a protest fishery, w e are exercising o u r rights! I'm fishing for t h e Elders, t h e Elders haven't got fish for y e a r s ! I h a v e to protect o u r rights, for m y mother, a n d f o r m y boys. W h a t w e are d o i n g is modest, w e a r e out t o catch fish f o r o u r Elders, for drying a n d c a n n i n g . W e p a y every year for "conservation." ( S q w e ' q w e l s Y e St6:l6, 1 9 9 8 : 1 2 ) 119  Ken M a l l o w a y a n d his y o u n g sons f i s h e d f o r the elders in t h e c a n y o n in July w h e n t h e river w a s c l o s e d d u e to conservation concerns over the early Stuart sockeye. K e n M a l l o w a y w a s c h a r g e d f o r his participation in this fishery. His legal bills w o u l d r u n in the t e n s o f t h o u s a n d s to be paid by St6:l6 Nation. T h e c h a r g e s w e r e eventually dropped. Protests to river closures in t h e n a m e o f conservation w o u l d c o n t i n u e t h r o u g h o u t the r e m a i n d e r of the 2 0  t h  century a n d C h e a m fishers w o u l d find t h e m s e l v e s in actual  c o m b a t with D F O officers. M e m b e r s of the Seabird Island c o m m u n i t y w o u l d eventually s e e k a n alternative m e t h o d o f dealing with their o w n community m e m b e r s c h a r g e d with fisheries violations. A n d commercial fishers w o u l d find t h e m s e l v e s fighting not only D F O f o r a legally sanctioned right to sell their catch, but other St6:l6 fishers a s well. In the following c h a p t e r s I examine three specific r e s p o n s e s to fisheries regulations, s h a p e d b y t h e court rulings o f the 1990s a n d arising f r o m t h e c h a n g e s implemented as part of a n e w Aboriginal Fisheries Strategy. T h e specific r e s p o n s e s o n w h i c h I focus depict not only a fishery fractured by regulation but also o n e c o n f o u n d e d b y pressures f r o m within. T w o constants s e e m to bind t h e responses: 1) affirmation of tradition as an  essential part of each response, a n d 2 ) affirmation of the Aboriginal right to fish.  120  Chapter Four: Warriors on the Water  34  It's a sunny day in August as I sit by the Fraser River at Cheam Beach. I watch as fishers take their places in the queue - mother and son, father and daughter, employer and employee - launching their 12 to 18 foot boats in roughly 15 minute intervals. One by one the boats return, their occupants calling out the number of fish caught in their nets. This sequence is repeated throughout the day as children play along the water's edge and the adults share their secrets of 'where the best fishing spots' are. This is the life of these people who have lived along this river since ancient times. Just before 10:00 a.m. o n M a y 13, 2 0 0 3 H e a d B a n d Councilor S i d D o u g l a s w a s violently a c c o s t e d by D F O officers. D o u g l a s w a s p e p p e r s p r a y e d at close range, w r e s t l e d to t h e g r o u n d , r o u g h e d up a n d handcuffed by three D F O o f f i c e r s .  35  In  r e s p o n s e to this action, s o m e 5 0 b a n d m e m b e r s s u r r o u n d e d t h e D F O truck, informed the officers they could leave o n foot a n d also b l o c k a d e d t h e railway track [running t h r o u g h t h e reserve] f o r t h e rest of t h e day. W h i l e this recording of t h e incident is only o n e side of t h e story, it very clearly depicts t h e a c r i m o n i o u s relationship that h a s existed b e t w e e n C h e a m fishers a n d t h e federal fisheries authorities f o r o n e h u n d r e d years.  36  In t h e last fifteen years alone, n u m e r o u s violent incidents involving C h e a m  fishers a n d fisheries officers h a v e erupted o n a n d off t h e river. T h e level of violence w a s s o high b y t h e e n d of t h e s u m m e r of 1999, that before fishing b e g a n in t h e s u m m e r of 2 0 0 0 , Chief J u n e Quipp m a d e a n u n p r e c e d e n t e d m o v e a n d negotiated a safety protocol b e t w e e n D F O a n d the C h e a m Band. A c c o r d i n g t o J u n e Quipp, this action w a s  34  T i t l e t a k e n from A u g u s t 3 1 , 1 9 9 9 Chilliwack Progress front p a g e headline.  U B C I C Joint Policy Council NAIIP News Path, T u e s d a y , M a y 13, 2 0 0 3 . A l s o reported in t h e Chilliwack Times, M a y 15, 2 0 0 3 a n d t h e Chilliwack Progress, M a y 15, 2003. 35  T h e situation resulted in no charges being laid against S i d D o u g l a s a n d n o actions t a k e n against t h e fisheries officers involved in t h e incident (Chilliwack Times, November 4, 2003). 36  121  t a k e n to prevent the certain loss of life that w a s sure to follow if the situation continued without intervention. In this chapter I examine the C h e a m b a n d ' s turbulent history with federal Fisheries authorities. I begin with a brief d e m o g r a p h i c o v e r v i e w of the C h e a m c o m m u n i t y before discussing C h e a m ' s particular position regarding "the Aboriginal right to fish" a n d the role of tradition in the creation of their p e r s o n a of " W a r r i o r s o n the W a t e r " . A s a part of this discussion, I examine h o w C h e a m ' s particular stance regarding the Aboriginal right to fish s h a p e s the band's overall relationship with other St6:l6 bands. Community Overview T h e n a m e C h e a m m e a n s "wild strawberry place." Straddling the Fraser River, the c o m m u n i t y consists of two reserves - C h e a m IR #1 comprising 305.1 hectares a n d T s e a t a h IR # 2 comprising 157.8 hectares (with only 100 hectares actually a b o v e the high w a t e r mark). T h e reserve hectarage is currently under review. Table 6. Cheam Reserve Name  Location  Hectares  CHEAM NO. 1  NEW WESTMINSTER. DIST. IN SECS. 6&7, TP.3, R. 28, SECS 1&12, TP3, R29, W.6M LFT BANK FRASER RVR & N SHORE CHEAM LAKE  305.1  TSEATAH NO. 2  NEW WESTMINSTER DIST. IN TP3, R28, W.6M, ON RIGHT BANK OF FRASER RIVER, 2 MILES SOUTH OF AGASSIZ  157.8  Source: Stats Canada First Nation Profile  T h e most recent c e n s u s data report a total population of 4 3 6 - 1 8 0 o n reserve, another 2 5 6  3 7  residing off reserve (Stats C a n a d a , Registered Population, Oct. 2 0 0 4 ) .  E m p l o y m e n t opportunities on the reserve are limited. T h e majority of t h o s e w o r k i n g on  3 7  0 f this 2 5 6 residing off reserve, 71 reside on other reserves. 122  the reserve are e m p l o y e d by t h e administration office, either directly t h r o u g h t h e office or t h r o u g h t h e reserve landfill o p e r a t i o n .  38  Fishing, hunting a n d various f o r m s of hourly w a g e labor a r e relied u p o n b y m a n y a s a w a y of m a k i n g e n d s meet, with fishing being t h e primary variable in that e q u a t i o n . O n e c o m m u n i t y m e m b e r with w h o m I spoke, Isaac Aleck, d e s c r i b e d to m e h o w h e relied o n all of these methods, primarily fishing, to support "his Mrs." (as h e called her) a n d his t w o d a u g h t e r s .  39  However, a s w a s e x p l a i n e d to be m e b y t h e  c o m m u n i t y m e m b e r s with w h o m I spoke, fishing is more t h a n a w a y to put f o o d o n t h e table o r e a r n a living; fishing is a w a y of life. The Battle Lines Are Drawn T h e Aboriginal right t o fish h a s b e e n hard fought by all t h e families in t h e C h e a m community, including the often high profile D o u g l a s family. In 1988, while attending t h e a n n u a l general meeting of t h e Union of BC Indian Chiefs, C h e a m b a n d Chief S a m D o u g l a s w a r n e d that "Indians m a y have t o resort t o direct action if Native claims - including fishing rights - aren't s o o n settled in t h e courts or at t h e negotiating table" (Chilliwack Times, T u e s d a y , N o v e m b e r 2 2 , 1988). W h i l e D o u g l a s stressed t h e  0 n e b a n d m e m b e r with w h o m I s p o k e noted that most of his c o m m u n i t y ' s people could not maintain regular, long term e m p l o y m e n t off t h e reserve. 3 8  0 n e o f Isaac A l e c k ' s j o b s is a s a fish monitor, collecting c a t c h d a t a for reporting to D F O a s to t h e n u m b e r of salmon t a k e n during e a c h o p e n i n g . During t h e s u m m e r s of 2 0 0 2 a n d 2 0 0 3 , Isaac A l e c k 'monitored' C h e a m b e a c h catches. But in t h e s u m m e r of 2 0 0 4 a sales a g r e e m e n t h a d b e e n negotiated a n d s i g n e d b e t w e e n D F O a n d St6:l6 fishers so h e w o r k e d a landing site designated for collecting catch n u m b e r s a s m a n d a t e d in t h e sales agreement. Interestingly e n o u g h , C h e a m w a s not a signatory b a n d t o that agreement, therefore Isaac Aleck a n d other m e m b e r s of t h e C h e a m c o m m u n i t y w e r e not able to participate in t h e sales fishery f o r w h i c h he w a s c o u n t i n g salmon. 3 9  123  point that support f r o m t h e public t h r o u g h peaceful protest w a s t h e d e s i r e d o u t c o m e , he n o t e d that " w h e n a r m e d fisheries officers c o m e d o w n in force, t h e n that's w h e n it gets militant" {Chilliwack Times, T u e s d a y , N o v e m b e r 2 2 , 1988). D o u g l a s ' c o m m e n t s c a m e t w o y e a r s after a violent incident at Gill Bay d o w n river f r o m t h e C h e a m Reserve. T h e Gill B a y incident marked t h e first violent e x c h a n g e b e t w e e n D F O a n d C h e a m fishers. T h i s incident w o u l d set t h e tone for t h e relationship b e t w e e n t h e C h e a m B a n d a n d federal fisheries authorities for t h e next t w o d e c a d e s . Prior to t h e conflict at Gill Bay C h e a m fishers, f o r t h e most part, h a d o b s e r v e d the o p e n i n g s a n d closings established by D F O . In 1986 violence e r u p t e d w h e n S a m D o u g l a s a n d other m e m b e r s of t h e C h e a m B a n d d e c i d e d they n o longer w a n t e d t o be last in line b e h i n d t h e commercial a n d sports fishers. A s d e s c r i b e d t o me by Corky Douglas, o p e n i n g s f o r t h e Indian F o o d Fishery (IFF) w o u l d b e f r o m T h u r s d a y to S u n d a y e a c h w e e k , however, these o p e n i n g s w o u l d c o m e after t h e commercial sector h a d f i s h e d t h o s e s a m e stocks earlier in t h e w e e k leaving f e w fish in t h e river for most of the IFF o p e n i n g . Meetings with Fisheries officials h a d d o n e little t o alter this pattern. S a m D o u g l a s a n d others f r o m t h e community d e c i d e d to stage a protest against a o n e d a y closure of t h e fishery. M o r e than a d o z e n people w e r e c h a r g e d with fishing during a c l o s e d time a n d obstructing a p e a c e officer. S a m D o u g l a s w a s c h a r g e d a n d convicted of assaulting a Fisheries officer with a boat oar. D o u g l a s ' criminal conviction w a s u n d e r a p p e a l w h e n , in a ruling regarding a civil suit filed by t h e Fisheries officer, the j u d g e f o u n d D o u g l a s w a s justified w h e n he struck t h e fisheries officer  (Vancouver  Sun, T h u r s d a y , July 6, 1989). A s noted in t h e Vancouver Sun article, t h e 1 9 8 6 melee e r u p t e d after said  124  fisheries officer arrived at the s c e n e of the protest fishery with 2 5 a r m e d fisheries officers w h o p r o c e e d e d to confiscate nets set by D o u g l a s a n d m e m b e r s of his family, w h o w e r e protesting the closure. It w a s revealed in the p r o c e e d i n g s of the civil suit, that D o u g l a s w a s justified in his use of force as the fisheries officer h a d s w u n g an oar 12 times in the direction of the D o u g l a s boat, until S a m Jr. w a s struck in the h e a d a n d fell b a c k w a r d s . T h e civil suit also revealed that fisheries officers arrived o n the s c e n e a r m e d with knives a n d .357 m a g n u m revolvers, traveling in s e v e n vessels a n d a helicopter. T h e battle e r u p t e d o n the water after the fisheries officers w e r e a p p r o a c h e d by a n equal n u m b e r of St6:l6 w h o h a d left their knives a n d fish clubs o n the s h o r e before putting out in their boats. T h e Gill Bay incident w a s o n e of m a n y confrontations that o c c u r r e d b e t w e e n the C h e a m c o m m u n i t y a n d fisheries authorities. In the c o m i n g years, t h e a r e a n e w s p a p e r s w o u l d be riddled with reports of fishing disputes involving the C h e a m b a n d . N e w s headlines of b l o c k a d e s a n d p h o t o g r a p h s c a m o u f l a g e d - c l a d Natives w o u l d contribute to C h e a m ' s identity as "warriors o n the water" a n d local n e w s p a p e r s w o u l d be rife with articles describing the often extremely volatile relationship that existed b e t w e e n the federal g o v e r n m e n t a n d the C h e a m b a n d . A s a result of the Gill Bay incident in 1986, two federal Fisheries officers w e r e c h a r g e d with c o m m o n assault a n d a helicopter pilot w a s c h a r g e d with mischief in connection with altercations involving Native Indian f o o d f i s h e r m e n . T h e two officers w e r e c h a r g e d with assaulting Chief C l a r e n c e Pennier (from Scowlitz) a n d C h e a m b a n d m e m b e r s S a m Douglas a n d Albert Chester J o h n s o n . T h e pilot w a s c h a r g e d with mischief in a "life threatening situation." Fisheries officers c h a r g e d 18 Indians with a total of 5 4 offenses, including assault a n d illegal fishing in  125  c o n n e c t i o n with t h e protest fishery [Vancouver  Sun, April 7, 1 9 8 7 ) . By M a y of 1989,  t h e possibility of river v i o l e n c e w a s a g a i n imminent w h e n Fisheries authorities a n n o u n c e d t h e river w o u l d not o p e n to Indian fishing at least three d a y s e a c h w e e k d u r i n g the m o n t h s of J u n e a n d July, the s a m e r e a s o n that p r o m p t e d t h e violence at Gill Bay. In a n interview w i t h a reporter f r o m The Progress, C h e a m Chief S a m D o u g l a s e x p r e s s e d his c o n c e r n that there w o u l d be physical confrontation b e t w e e n Natives a n d Federal Fisheries officers if the Natives w e r e not allowed to fish three d a y s a w e e k in late J u n e a n d July w h e n the early Stuart s o c k e y e are running. Fisheries h a d indicated that, b a s e d o n early estimates, t h e Indian F o o d Fishery ( I F F ) w o u l d b e o p e n just o n e d a y a w e e k t h r o u g h J u n e 2 5 , a n d then t w o days a w e e k after that. T h e St6:l6 Nation Society a n d the St6:l6 Tribal Council notified D F O in writing, saying that Natives w o u l d voluntarily fish only three days e a c h w e e k in order to preserve s a l m o n stocks. R e c o g n i z i n g t h e n e e d f o r conservation, S a m D o u g l a s indicated C h e a m f i s h e r s w o u l d a g r e e to a self-imposed f o u r - d a y - a - w e e k closure e v e n t h o u g h they d i d not recognize Fisheries' authority over Native fishing practices (The Progress, M a y 3 1 , 1989). Fisheries w a s put o n notice that, St6:l6 fisherman w o u l d ignore IFF regulations if they restricted t h e m t o just t w o d a y s ' fishing. By 1 9 9 1 , t h e situation h a d e s c a l a t e d t o t h e point of 'nearly no return' w h e n g u n shots rang out over the water. In July of 1 9 9 1 , "shots w e r e fired in a confrontation b e t w e e n federal fisheries officers a n d C h e a m B a n d m e m b e r s as Natives claim more fishing rights"  (The  Progress, July 2 4 , 1991). T h i s is t h e first line in t h e article chronicling y e t a n o t h e r violent incident b e t w e e n C h e a m fishers a n d fisheries authorities. A s n o t e d in the  126  article, two Natives in a c a n o e w e r e d i s c o v e r e d fishing illegally by a night-time fisheries patrol on the Fraser River on July 17. A third Native on s h o r e fired a rifle in the direction of the c a n o e e v e n t h o u g h another officer on land h a d o r d e r e d him to d r o p the w e a p o n . All three w e r e c h a r g e d with illegal fishing a n d the Native o n s h o r e w a s also c h a r g e d in c o n n e c t i o n with discharging a fire a r m . It is also noted in the article that the Fisheries officer on the shore also fired a shot to the side a n d into the water.  T h e shot  fired f r o m the Native on s h o r e w e n t over the h e a d s of the officers in the patrol boat w h o "instinctively" d r e w their revolvers. Y e t a g a i n , the altercation s t e m m e d f r o m a closure of the IFF to c o n s e r v e the early Stuart s o c k e y e run. A n d a g a i n , C h e a m b a n d Chief S a m Douglas, put the federal g o v e r n m e n t on notice that C h e a m fishers (as well as all St6:l6 fishers) w e r e g o i n g to fish despite the closure of the Native fishery. A s noted by S a m D o u g l a s , "Indians h a v e a constitutional right to f i s h - instead of t h e "privilege" t o fish that others gain by paying for a license. S a m D o u g l a s stated, " W e ' l l go fishing w h e n the fish are there, instead of w h e n the D F O dictates" (The Progress, July 24, 1991). D o u g l a s ' press statement reflected C h e a m ' s standing that restrictions a n d c h a n g e s to license conditions w e r e to be negotiated rather t h a n legislated. T h i s w a s a sentiment r e c o u n t e d to me by his sister, J u n e Quipp, w h e n s h e told m e that "we w e r e not part of the process that w e n t into the decision m a k i n g that resulted in the fisheries regulations i m p o s e d on First Nations peoples." In 1993 tensions escalated dramatically a l o n g the stretch of the Fraser running t h r o u g h the C h e a m Reserve w h e n a blockade erected by the C h e a m B a n d brought C a n a d i a n National (CN) railway freight transport to a standstill. C h e a m b a n d m e m b e r s b l o c k e d the railway with pickup trucks after a w e e k e n d of confrontations with fisheries  127  e n f o r c e m e n t officers that e n d e d with twenty-two Native nets being s e i z e d a n d charges being c o n s i d e r e d against twelve people. C N w a s a w a r d e d a court injunction to h a v e the b l o c k a d e r e m o v e d , however, as stated by Sid Douglas, brother of C h e a m Chief, S a m Douglas, o n e of t h e blockade organizers, "we a r e going to stay until o u r leaders tell us otherwise." O n c e a g a i n , t h e action w a s in direct reaction to Fisheries' decision to close t h e river to Native fishing, albiet this time in t h e face of a n a g r e e d u p o n allocation a s part of a n a g r e e m e n t negotiated b e t w e e n St6:l6 f i s h e r s a n d t h e f e d e r a l government. At t h e center of t h e C h e a m protest w a s D F O ' s decision to close t h e river to Native fishing before Indian fishers r e a c h e d their negotiated allotment of 6 2 0 , 0 0 0 sockeye. In t h e s u m m e r of 1993, C h e a m as well as other St6:l6 Bands, w e r e fishing u n d e r a Pilot Sale a r r a n g e m e n t negotiated a s part of t h e newly i m p l e m e n t e d Aboriginal Fisheries Strategy. Chief S a m D o u g l a s noted that t h e 6 2 0 , 0 0 0 allocation w a s imposed on t h e St6:l6 (Vancouver  Sun, A u g u s t 3 1 , 1993). T h e p r o b l e m e m e r g e d w h e n Pat  Chamut, Pacific region director-general for D F O , m a d e t h e decision t o k e e p t h e river c l o s e d during t h e previous w e e k e n d , saying that t h e allocation w o u l d b e filled o n c e other St6:l6 fisheries w e r e t a k e n into account. D F O c o n t e n d e d that a 4 8 - h o u r o p e n i n g , w h i c h t h e C h e a m fishers w a n t e d , w o u l d have a d d e d up to 100,000 s a l m o n to t h e Aboriginal count, p u s h i n g t h e n u m b e r far over t h e allocation (Vancouver  Sun, A u g u s t  3 1 , 1993). W h i l e fisheries authorities indicated that t h e protest c a m e from C h e a m alone, S a m D o u g l a s stated that all St6:l6 b a n d s w e r e upset over s a l m o n allocations. Fisheries a n d O c e a n s w o u l d find t h e latter to be true w h e n other St6:l6 leaders s p o k e out in support of C h e a m ' s action. G e o r g e C a m p o , president of St6:l6 Nation C a n a d a ,  128  publically b a c k e d S a m D o u g l a s a n d t h e C h e a m b a n d (Vancouver Sun for S e p t e m b e r 1, 1993). In t h e e n d , 10 b a n d s w o u l d s h o w support for C h e a m ' s action, a n action that S a m D o u g l a s stated w o u l d only e n d if t h e deputy fisheries minister w o u l d c o m e to t h e reserve f o r talks {Vancouver Sun, S e p t e m b e r 1, 1993). T h e situation w o u l d b e c o m e markedly w o r s e before a resolution could be a c h i e v e d . St6:l6 Indian leaders met overnight to d e c i d e if t h e barricades o n t h e C N main line t o V a n c o u v e r w e r e t o c o m e d o w n or if t h e track w a s t o be ripped up before a court injunction could be s e r v e d . A bulldozer w a s positioned, ready to tear out t h e tracks passing t h r o u g h t h e reserve; a decision that w a s to be up to all St6:l6 b a n d s , not just C h e a m . (Vancouver Sun, S e p t e m b e r 2, 1993). By Saturday, S e p t e m b e r 4, 1993, t h e R C M P w e r e poised to m o v e in to enforce a previous injunction against t h e Natives (Chilliwack Times, S e p t e m b e r 4, 1993). T h e blockade r e m a i n e d in place f o r five days, e n d i n g only after D F O a g r e e d to t h e d e m a n d s of C h e a m B a n d .  4 0  T h e possibility of violence remained high a s C h e a m fishers c o n t i n u e d to  l n t h e c o u r s e of m y conversations I w a s told that t h e bulldozer u p o n w h i c h S a m D o u g l a s w a s p e r c h e d w a s incapable of actually digging u p t h e railway tracks; it w a s out of g a s . W h e t h e r o r not t h e g a s tank of t h e bulldozer w a s full or empty, o n e fact s e e m s certain. C h e a m fishers w e r e keenly aware of their ability to disrupt t h e larger e c o n o m y t h r o u g h t h e blockade of t h e railway. In his article entitled, '"Shut t h e Province D o w n ' : First Nations B l o c k a d e s in British Columbia, 1984-1995," Nicholas Blomely notes that b l o c k a d e s have b e e n a n effective tool used by First Nations across British C o l u m b i a for a n u m b e r o f y e a r s . Blomely points o u t that major transport routes h a v e also b e e n t h e target of b l o c k a d e s a s well a s access routes to resorts a n d parks. Blomley d i s c u s s e s the vulnerability of t h e provincial transport system, noting that road a n d rail lines frequently pass t h r o u g h reserves, w h i c h w e r e t h e usual locations for m a n y of t h e blockades. Additionally, t h e vulnerability of the transport system is further a g g r a v a t e d by t h e provincial t o p o g r a p h y - t h e r u g g e d terrain e n s u r e s that valley bottoms b e c o m e transport corridors - again placing major transportation corridors in close proximity t o Native reserves a s reserves are also often located in valleys, near rivers (1996:18-19). 4 0  129  exercise their right to fish over the next f e w years. Fishing c o n t i n u e d regardless of closures a n d c h a r g e s w e r e laid. In July of 1998, C h e a m fishers defied a federal b a n a n d f i s h e d in protest. Chester Douglas, a l o n g with his wife a n d s o n w e r e spotted by fisheries officers flying over h e a d in a helicopter. A s d e s c r i b e d by C h e s t e r D o u g l a s in the Chilliwack Progress, "First they brought out a helicopter to shine its lights o n us, a n d t h e n nine fisheries officers c a m e a n d g a v e us a fine" (Sunday, July 12, 1998). A n a g r e e m e n t to r e m o v e their nets w a s r e a c h e d after b a n d m e m b e r s met with Fisheries officers. A t the meeting C h e a m fishers m a d e clear that they e x p e c t e d t h e b a n to b e e n f o r c e d equally against sports f i s h e r m e n . Quoting b a n d m e m b e r Isaac Aleck, "...As long as t h e s p o r t s m e n are off the river f r o m the mouth up, t h e n w e will a b i d e by it. A s long as t h e s p o r t s m e n are out, we'll b e out" (The Province, July 12, 1998). T h i s sentiment w a s e x p r e s s e d over a n d over again a m o n g the C h e a m fishers with w h o m I spoke. Nearly every conversation I h a d with fishers c o n t a i n e d the phrase, "If t h e sporties are out; we'll b e out." T h e prevailing sentiment a m o n g C h e a m fishers is that, if there is a legitimate conservation c o n c e r n , t h e n the sports fishery w o u l d not be o p e n . In r e g a r d to that sentiment, D F O contends that the pressure o n t h e early Stuart run f r o m the rods a n d reels of the sports fishery a r e insignificant w h e n c o m p a r e d to t h e nets of t h e C h e a m fishers. A s the s u m m e r of 1999 blended into fall, violence again e r u p t e d a l o n g the Fraser at C h e a m . A n d a g a i n , this violence s t e m m e d f r o m river closures in the n a m e of c o n s e r v a t i o n . A s they h a d d o n e the previous year, Fisheries a n d O c e a n s b a n n e d fishing o n t h e Fraser in the early s u m m e r months to protect the critical Stuart River s o c k e y e r u n . A c c o r d i n g to the ruling in Sparrow c o n c e r n s over c o n s e r v a t i o n are the  130  only justifications for closing t h e river to Aboriginal fishers. However, d u r i n g t h e b e g i n n i n g of t h e 1 9 9 9 s o c k e y e s e a s o n , Aboriginal f i s h e r s w e r e f o r c e d off t h e river w h i l e sports fishers w e r e allowed to continuing fishing for c h i n o o k s a l m o n , releasing a n y s o c k e y e inadvertently h o o k e d . M a n y fishers, in particular t h o s e at C h e a m , believed D F O ' s w a s acting in t h e s a m e abritrary fashion they h a d in t h e pre-Sparrow  years.  T h e y felt that D F O w a s using t h e l a n g u a g e of Sparrow t o re-prioritize t h e fishery in that sports fishers w e r e required to release a n y inadvertently c a u g h t s o c k e y e , therefore they w e r e not d e e m e d to be contributing adversely to t h e conservation p r o b l e m . C h e a m fishers h a d a different take o n t h e situation b a s e d o n their o w n observations of t h e sports fishery. C h e a m fishers w h o h a d d e f i e d a similar f i s h i n g b a n t h e p r e v i o u s year, (for t h e s a m e reasons) set their gill nets with t h e support of t h e U n i o n of B.C. Indian Chiefs a n d a b o u t 1 0 0 others reportedly f r o m other b a n d s a r o u n d t h e province (Chilliwack Progress, T u e s d a y , July 13, 1999). Fisheries officers, trying t o e n f o r c e t h e river closure, a c t e d m o r e aggressively, traveling t h e river at night cutting a n d confiscating 'illegal' nets ( s e e figure 4 ) . T e n s i o n s c o n t i n u e d t o mount a s fisheries officers, w e a r i n g Flak jackets a n d carrying automatic w e a p o n s d e s c e n d e d o n f i s h e r m e n at their nets - usually elders w o m e n a n d children s e e k i n g out, w h a t J u n e Q u i p p called t h e w e a k e s t link (Chilliwack Progress, T u e s d a y , A u g u s t 3 1 , 1999). A s Quipp reported to t h e press, "...They h a v e p u s h e d us, g r a b b e d our kids, r a m m e d o u r boats a n d always t h r e a t e n e d with s o m e kind of violence" (Chilliwack Progress, T u e s d a y , A u g u s t 3 1 , 1999). By t h e e n d of t h e summer, signs of a possible full-fledged w a r w e r e clearly visible. Fisheries officers f o u n d t h e m s e l v e s face to face with a n a r m y of y o u n g people from a r o u n d British C o l u m b i a a n d Alberta,  131  F i g u r e 4. " G e t A w a y F r o m My N e t " C o n f r o n t a t i o n a t C h e a m B e a c h  Photo by Rick Collins, Chilliwack Progress, September 7, 1999  132  standing firm o n t h e b e a c h . Referring to t h e m s e l v e s a s a security force, this g r o u p of y o u n g people b e l o n g i n g t o t h e Native Y o u t h M o v e m e n t arrived at C h e a m t o lend support f o r C h e a m ' s A b o r i g i n a l right t o fish. Described to t h e press by Fisheries a n d O c e a n s a s " a n a r m e d a n d d a n g e r o u s m e n a c e o n t h e water," they did indeed look t h e part of t h e warrior. D r e s s e d in c a m o u f l a g e fatigues a n d e q u i p p e d with radios, night-vision goggles, maps, flashlights, air horns, whistles a n d h a n d d r a w n plans, this g r o u p of y o u n g people stood w a t c h over t h e b e a c h .  41  By t h e e n d of t h e w e e k e n d , t e n f i s h e r m e n w o u l d b e under  investigation, eight nets a n d o n e h u n d r e d a n d ninety s o c k e y e s e i z e d (Chilliwack Progress, T u e s d a y , A u g u s t 3 1 , 1999). By Fall, both sides w o u l d d e m a n d that charges be laid (Chilliwack Progress, T u e s d a y , S e p t e m b e r 2 8 , 1 9 9 9 ) a n d both sides w o u l d c o m e t o t h e c o n c l u s i o n that a c h a n g e in protocol w a s essential. T h e s u m m e r of 2 0 0 0 f o u n d C h e a m fishers a n d Fisheries officers operating u n d e r a n e w s y s t e m .  42  S o m e m e m b e r s of t h e "security force" w e r e m e m b e r s of t h e C h e a m B a n d , but for t h e most part, t h e g r o u p w a s m a d e u p of y o u n g Aboriginal m e n a n d w o m e n from outside t h e c o m m u n i t y . L a b e l e d criminals, terrorists a n d t h u g s by Fisheries a n d O c e a n s officials, this g r o u p w a s actually c o m p o s e d of e d u c a t e d individuals - most university students at t h e time - highly trained in a variety of military t e c h n i q u e s . T h e y c o n s i d e r e d t h e m s e l v e s f r e e d o m fighters. A l t h o u g h they admitted their military dress w a s meant t o be intimidating, their role w a s strictly defensive (Chilliwack Progress, T u e s d a y , A u g u s t 3 1 , 1999). 41  J u n e Q u i p p r e m a r k e d t o m e o n t h e h o w h e r a p p r o a c h t o fisheries struggles differed from that of h e r brother S a m . S h e explained to m e that S a m D o u g l a s h a d not b e e n h a p p y with t h e p r e s e n c e of t h e 'security force' o n t h e reserve. O t h e r s told m e that S a m D o u g l a s preferred to place himself in t h e direct line of fire w h e n d e a l i n g with fisheries officers, rather than putting others in that spot. W h i l e not a b o v e relying o n forceful f o r m s of direct action, S a m Douglas also relied o n more subtle w a y s of exercising t h e varying forms of power his community p o s s e s s e d . A rather a m u s i n g a n e c d o t e w a s relayed to m e by Ernie Crey. A c c o r d i n g to Ernie Crey, t e m p e r s b e g a n to flair during a meeting b e t w e e n fishers a n d D F O . Ernie Crey, b e c o m i n g c a u g h t up in the heat of t h e moment, joined in with others w h o h a d raised their voices at t h e 42  133  A Cease Fire of Sorts In a n effort to h e a d off the injury or loss of life that w a s certain to occur in the u p c o m i n g s u m m e r s o c k e y e fishery, (then) Chief J u n e Q u i p p negotiated a safety protocol with Fisheries a n d O c e a n s . S u b s e q u e n t l y renegotiated e a c h year, the safety protocol w a s d e s i g n e d to define the principles a n d v a l u e s that informed the relationship b e t w e e n the C h e a m First Nation a n d the Department of Fisheries a n d O c e a n s ( D F O ) .  fisheries official. Notes Ernie Crey, S a m D o u g l a s t a p p e d him u n d e r the table to get his attention. O n c e outside after the meeting S a m D o u g l a s rather loudly a n d colorfully told Ernie Crey he w o u l d be fired if he did that a g a i n . S a m D o u g l a s k n e w that Ernie Crey had w o r k e d for D F O prior to taking up e m p l o y m e n t in the St6:l6 fisheries p r o g r a m . He k n o w that D F O staff w a s comfortable dealing with Ernie Crey. Ernie Crey h a d never b e e n c h a r g e d with so-called fisheries infractions. In addition, Ernie C r e y w a s (at that time) a m e m b e r of the Pacific S a l m o n Commission's Fraser Panel (the panel that d e t e r m i n e s fisheries' openings). S a m D o u g l a s w a n t e d Ernie Crey to k e e p the lines of c o m m u n i c a t i o n o p e n to D F O . He w a n t e d Ernie Crey to remain the diplomat; Ernie Crey w a s to leave the h a r d - n o s e d bargaining to the Chiefs. Notes Ernie Crey, "while m a n y m a y not h a v e w a n t e d to believe it, S a m D o u g l a s h a d a great deal of respect for nearly e v e r y o n e he c a m e in contact with, including negotiators for the D F O . S a m D o u g l a s liked people. H o w e v e r h e k n e w that s o m e t i m e s h e n e e d e d t o b e forceful in his dealings with D F O in order to help the St6:l6 gain a larger share of the fishery." Sadly, S a m D o u g l a s w a s lost in a fishing accident in the river off the C h e a m reserve the s u m m e r of 2 0 0 1 before I h a d a n opportunity to speak with him. His sister J u n e Quipp, Ernie Crey a n d D o u g Kelly very generously s h a r e d their ' S a m stories' with me. T h e protocol a g r e e m e n t negotiated in 2 0 0 3 after the M a y 13 incident in w h i c h Sid D o u g l a s as p e p p e r s p r a y e d a n d arrested, is the most limiting to date. T h e 2 0 0 3 a g r e e m e n t applied to all enforcement activities by fisheries o n land or water. T h e a g r e e m e n t limited w a t e r - b a s e d enforcement to o n e boat with no m o r e t h a n three or four officers o n b o a r d . L a n d b a s e d actions w e r e limited to two vehicles with no more than two officers. T h e a g r e e m e n t required that any fisheries officers h a v i n g b u s i n e s s on the reserve report to the h e a d councillor before going to the b e a c h . C h e a m leaders w e r e s e e k i n g to prevent a n y future situations such as the M a y 13 incident involving Sid Douglas. T h e y w e r e also seeking to prevent m a n y of the incidents that o c c u r r e d o n the water during the extremely volatile s u m m e r of 1999. During o n e of our conversations, J u n e Q u i p p d e s c r i b e d the events of 1999, as C h e a m boats w e r e r a m m e d by D F O vessels. J u n e Q u i p p talked of the eery feeling she e x p e r i e n c e d as s h e looked into the e y e s of o n e of the officers a b o a r d the D F O vessel as it a p p r o a c h e d her boat at full s p e e d . A c c o r d i n g to J u n e Quipp, the potential for the loss of life w a s very real that day. 43  134  4 3  Listed first a n d foremost w a s safety for C h e a m First Nations people, D F O a n d St6:l6 Nation Fisheries personnel. Additionally, a c o d e of conduct for operations w a s spelled out in t h e agreement. A n u m b e r of specific c o n c e r n s w e r e a d d r e s s e d in that c o d e of conduct, s o m e of t h o s e concerns included: safe operation of D F O vessels a n d helicopters identification of s p o k e s p e r s o n for e a c h side specific p r o c e d u r e for dealing with u n a t t e n d e d nets n e e d for c o u r t e o u s a n d respectful behavior o n t h e part of e a c h side notification of fisheries officers' p r e s e n c e prior t o contact with C h e a m f i s h e r s  4 4  T h i s a g r e e m e n t w a s heralded for its s u c c e s s w h e n Fisheries a n d O c e a n s C a n a d a Director Pablo Sobrino, s p e a k i n g at a conflict resolution w o r k s h o p , credited Chief Q u i p p f o r t h e p e a c e o n t h e river that c a m e in t h e s u m m e r of 2 0 0 0 , saying " S h e took t h e risk of entering into a formal a g r e e m e n t with federal fisheries to avoid confrontation" (Chilliwack Progress, T u e s d a y , February 20, 2 0 0 1 ) . W i t h i n three years t h e a g r e e m e n t w o u l d b e touted a s a "special enforcement deal" by Bill Otway, president of t h e Sportsfishing Alliance (Chilliwack Times, J u n e 2 0 , 2 0 0 3 ) . Non-Aboriginal fishing groups have maintained that t h e safety protocol h a s inhibited D F O ' s ability to effectively m a n a g e t h e resource. Sport fishing leaders c o n t e n d that t h e lack of D F O officers o n t h e b e a c h at C h e a m allowed for t h e so-called lawlessness prevalent in t h e C h e a m fishery. In a n interview g r a n t e d to t h e Chilliwack Progress, Bill Otway, of t h e Sports Fishing Defense Alliance, a c c u s e d Fisheries Minister Robert Thibault of being complicit in allowing a n 'illegal' fishery to continue,  A t t h e time of t h e confrontation b e t w e e n Fisheries officers a n d S i d Douglas, s o m e q u e s t i o n arose a s to w h e t h e r t h e safety a g r e e m e n t s i g n e d t h e in 2 0 0 2 h a d carried over until a n e w a g r e e m e n t h a d b e e n s i g n e d . T h e officers that confronted S i d D o u g l a s h a d not c h e c k e d in at t h e b a n d office before attempting to c o m e d o w n to t h e b e a c h ; prompting S i d D o u g l a s ' reaction. 44  135  alleging that C h e a m gillnets h a d b e e n in t h e water for 2 9 d a y s a s of date of his letter to the Solicitor G e n e r a l (July 2 5 , 2 0 0 3 ) . Otway a n d his group also a c c u s e d C h e a m fishers of stockpiling w e a p o n s along t h e beach. In his letter to t h e Solicitor G e n e r a l , O t w a y w a n t e d to m a k e t h e [solicitor general's] office aware of t h e type a n d quantity of firearms b e i n g stockpiled o n the reserve (Chilliwack Progress, July 2 5 , 2 0 0 3 ) . Before it w a s over, O t w a y a n d his g r o u p w o u l d d e m a n d that t h e federal g o v e r n m e n t bring in t h e a r m y t o deal with t h e situation that h e c o n t e n d e d existed o n t h e reserve. In t h e e n d , the R C M P a n d D F O rejected Otway's charges. I spent many w e e k e n d s at C h e a m b e a c h during t h e s u m m e r s of 2 0 0 2 a n d 2 0 0 3 ; I s a w no e v i d e n c e of a w e a p o n s stockpile or of a fishery g o n e wild. C o m m e n t i n g o n t h e absurdity of O t w a y ' s charges, s o m e C h e a m fishers j o k e d with m e of having m a g a z i n e s at h o m e with pictures of g u n s in t h e m . Interestingly e n o u g h , s o m e St6:l6 fishers have m a d e similar c o m m e n t s regarding D F O ' s ability to effectively m a n a g e t h e resource w h e n a c c e s s to t h e b e a c h at C h e a m is essentially d e n i e d . Pointing out that t h e safety protocol s i g n e d b e t w e e n St6:l6 Nation a n d D F O (coming a year or t w o after C h e a m ' s ) d o e s not k e e p D F O officers a w a y f r o m t h e fishing g r o u n d s a s d o e s C h e a m ' s , it w a s posited that C h e a m ' s a g r e e m e n t actually contributes to t h e acrimony o n t h e river rather t h a n alleviating it. A s it w a s explained to me, St6:l6 Nation's a g r e e m e n t w o r k e d to bring D F O into a dialogue of resource c o - m a n a g e m e n t rather than relegating t h e m to t h e side lines in a s m u c h a s that situation c a n actually exist. G i v e n that s o m e legitimacy m a y exist in regards to t h e limits o n resource m a n a g e m e n t inherent in t h e C h e a m safety protocol, it clearly h a s not h a m p e r e d t h e  136  g o v e r n m e n t ' s ability to o b s e r v e fishers a n d lay charges. Both D F O officials a n d m e m b e r s of the C h e a m community told m e that t h e n u m b e r o f c h a r g e s laid e a c h year for so-called illegal fishing h a v e i n c r e a s e d since t h e implementation o f t h e safety protocol. A c c o r d i n g to J u n e Quipp, t h e n u m b e r of c h a r g e s h a v e increased dramatically. Notes b a n d m e m b e r Ernie Crey, h u n d r e d s of c a s e s f r o m t h e 2 0 0 0 a n d 2 0 0 1 fishing s e a s o n a r e still p e n d i n g . Is this t h e cost o f p e a c e ? W a s C h e a m ' s ability to negotiate a p e a c e o n t h e river v i a their safety protocol a result o f direct action o n the part of C h e a m warriors? O n what h a v e t h e m e m b e r s of the C h e a m c o m m u n i t y relied w h e n considering their aggressive stance regarding their Aboriginal right to fish? H a v e t h e s e warriors o n t h e water g a i n e d a n y measure of true a u t o n o m y o n t h e w a t e r ? M a n y q u e s t i o n s remain. Life Along the River - the Practice of a Tradition "See that area over there?" asks Robert Douglas gesturing toward a spot upriver. "My grandfather fished there, my father fished there and now me and my son, we fish there" "It doesn't matter what they decide," says Mr. Douglas. "This is our life. I have to feed my family. As long as there's fish in this river, my family won't go hungry" says Ronnie Douglas, Jr. (Chilliwack Progress, July 12, 1998) A s I sat a l o n g t h e river during t h e s u m m e r s of 2 0 0 2 a n d 2 0 0 3 , only faint e v i d e n c e o f the "wars" of the past years w a s visible. G o n e w e r e t h e f o x holes a n d c a m o u f l a g e d soldiers. W h a t remained w a s t h e matter-of-fact m a n n e r in w h i c h t h e c o m m u n i t y c o n t i n u e d its w a y of life, t h e w a y of life reflected in R o n n i e Douglas' 1 9 9 8 statement. T h e importance of fishing a s a part of that w a y o f life w a s clearly evident, not o n l y b y t h e fact that families lined t h e b e a c h t o fish, b u t a l s o b y t h e e m p h a s i s placed o n c o m m u n i t y responsibility a n d t h e transference of k n o w l e d g e . A l o n g t h e b e a c h s o m e families c a m p e d overnight a s they fished, others returning to their h o m e s  137  across the road, enjoying picnic style mid-day meals while along the river. Children w e r e e v e r y w h e r e o n the b e a c h ; playing at the water's e d g e or a c c o m p a n y i n g their parent(s) in the boats. A s explained to me in my interview with Corky Douglas, "That's h o w w e pass the k n o w l e d g e o n , w e take our kids out a n d s h o w t h e m h o w to fish. If y o u look at our community, w e all bring our kids d o w n . " C h e a m people share their history so that future generations will k n o w that history. A s w e t a l k e d , Corky D o u g l a s s h a r e d bits of k n o w l e d g e that h a d b e e n taught to him g r o w i n g up, a s did his sister J u n e Q u i p p w h e n I talked with her. Isaac A l e c k s h a r e d with me important information about the landscape that his father h a d taught him. O n o n e of my visits to the b e a c h , Isaac A l e c k took me out on the w a t e r a n d s h o w e d me important spots along the river; o n e being the dry rack spot of his greatgreat grandmother.  A c c o r d i n g to Isaac Aleck, she h a d the only dry rack outside of the  c a n y o n ; k n o w l e d g e of o n e ' s past being an essential part of St6:l6 tradition. Isaac A l e c k ' s great-great grandmother's family n a m e - Ollalie - can be f o u n d in the St6:l6 Historical Atlas, listed o n the 1905 map of the St6:l6 C a n y o n Fishery (2001:59). T h e 'passing of k n o w l e d g e ' is also evident in community projects. T h r o u g h c o n v e r s a t i o n s with m e m b e r s of the C h e a m community, I w a s told of the c o m m u n a l c a n n i n g project that takes place every summer. Fish are d o n a t e d by C h e a m fishermen a n d for two w e e k s e a c h summer, salmon is c a n n e d a r o u n d the clock. O n e C h e a m elder w h o o v e r s e e s the project e a c h year, told m e that the practice b e g a n in 1998 a n d still continues. Initially the project just served m e m b e r s of the C h e a m c o m m u n i t y elders or those w h o h a d lost fishing sites, however it has since g r o w n to include all St6:l6 elders. A c c o r d i n g to J u n e Quipp, the s u m m e r c a n n i n g project w a s to provide  138  s a l m o n to a n y elder w h o w a n t s to bring a jar so that those w h o can't fish, c a n obtain s a l m o n . A n elder f r o m the Soowahlie b a n d spoke to me of her participation in the c a n n i n g project, "Elders w o u l d s h o w u p a n d d r o p off their jars to be filled." C o m m u n i t y m e m b e r s w h o d o not fish, help with the c a n n i n g . During the s u m m e r of 2 0 0 2 , 6 0 0 d o z e n jars of s a l m o n w e r e p r o d u c e d . B e t w e e n three a n d four t h o u s a n d p e o p l e participated in the two w e e k c a n n i n g project, with twelve c a n n e r s g o i n g a r o u n d the clock. A c c o r d i n g to the elder, "Jars - half- pints, pints quarts - v a n i s h e d f r o m the store s h e l v e s all over the a r e a . T h e r e wasn't a jar left to sell." A s w e t a l k e d a b o u t the c a n n i n g project, this elder also t a l k e d with m e a b o u t her family a n d fishing. S h e talked of how, w a y back, her parents w e n t up to Y a l e to fish. S h e also talked of h o w c h a n g e s along the river (some natural, s o m e m a n m a d e ) a n d population increases have contributed to the loss of fishing sites; m a k i n g the c a n n i n g project so important. She also talked of h o w St6:l6 people h a d always sold their fish or e x c h a n g e d t h e m for other necessities. A c c o r d i n g to the C h e a m elder, fish is a main s o u r c e of f o o d for St6:l6 people. C o m m e n t i n g o n the regulations that h a v e c o n t i n u e d to limit a c c e s s to that essential source of f o o d , s h e simply n o t e d , " S o m e folks may go with the w a y it is. Others take a stand." T h e choice of the C h e a m c o m m u n i t y is readily apparent.  Managing Their Own Fishery A s a part of their decision to take a stand, C h e a m fishers f o r m e d a fishing c o m m i t t e e in 1 9 9 9 of eight t o t e n m e m b e r s t o d e c i d e w h e n a n d f o r h o w long C h e a m fishers w o u l d fish. Prior to fishing e a c h year, the chief a n d council meet to outline the fishing plan for the c o m i n g year, posting notices to b a n d m e m b e r s advising t h e m of the  139  dates a n d times of o p e n i n g s . This is the s a m e process that takes place e a c h year within the larger Sto: 16 Nation via the fisheries committee c o m p o s e d of representatives of the various Sto: 16 bands. However, the decisions m a d e by the C h e a m community often differ dramatically f r o m those of the larger Sto: 16 Nation in that the "Nation" generally a d h e r e s to conservation restrictions regarding the Early Stuart run, s e e k i n g only dispensation for a limited n u m b e r of 'pieces' for the c a n y o n dry rack fishers. A c c o r d i n g to C o r k e y Douglas, C h e a m ' s committee e x a m i n e s the data f r o m the Pacific S a l m o n C o m m i s s i o n ' s early forecast of s a l m o n runs to plan h o w C h e a m will conduct their fishery. T h e committee d e c i d e s if they are g o i n g to accept D F O ' s run forecasts, then setting the times a n d dates of their fishery b a s e d on their e x a m i n a t i o n of the data. After setting their o w n fishing dates a n d times, C h e a m s e n d s a letter to D F O outlining their fishing plan. C h e a m ' s policy is b a s e d on the fact they h a v e never given up or negotiated a w a y their f i s h i n g rights. M e m b e r s of t h e C h e a m c o m m u n i t y believe t h a t t h e y h a v e priority over any s a l m o n catches, relying on the Sparrow decision to support their claim. In my m a n y conversations with community m e m b e r s , it w a s m a d e clear to me that w h e t h e r or not the individual with w h o m I w a s s p e a k i n g h a d v o t e d for the particular m e m b e r s of council currently seated, they did demonstrate support for the decisions of that chief a n d council in regard to fishing. A s d e s c r i b e d by Corky Douglas, "Here [at C h e a m ] it is a w h o l e community effort. W e support w h a t chief a n d council d o e s a n d they support w h a t w e do. It's kind of a mutual thing b e t w e e n chief a n d council a n d the m e m b e r s h i p on the fishery issue." B a s e d o n my conversations with fishers a n d my o b s e r v a t i o n s of fishing in action, this community c o h e s i v e n e s s w a s true for the most  140  part. At times there w a s s o m e d i s a g r e e m e n t over h o w the fishery w o u l d be c o n d u c t e d . However, in regards to dealing with the public, the unified front remains intact. W h i l e the Aboriginal right to fish remains a constant for both C h e a m a n d St6:l6 Nation, the decisions regarding the practice of that right, more regularly t h a n not, differ f r o m t h o s e of the larger St6:l6 Nation fishery committee. C h e a m ' s a g g r e s s i v e a p p r o a c h to exercising their Aboriginal right to fish c o m e s after d e c a d e s of allowing fisheries authorities to dictate w h e n a n d h o w they w o u l d fish. A s noted earlier, b e g i n n i n g in 1986, C h e a m fishers d e c i d e d to protest fisheries attempts to close the river to c o n s e r v e t h r e a t e n e d s o c k e y e runs. Following the Sparrow ruling in 1990, c a m e the implementation of a n e w Aboriginal Fisheries Strategy, allowing for the sale of in-river c a u g h t s a l m o n for the first time in over 100 years (a right the C h e a m a n d St6:l6 maintain w a s never relinquished). Beginning in 1992, "sales a g r e e m e n t s " establishing fisheries allotments w e r e negotiated. S a m Douglas, w h o h a d led the protests in 1986 a n d 1993, w a s o n e of the principle individuals negotiating the early a g r e e m e n t s a n d establishing the newly created Aboriginal m a n a g e m e n t authority. H o w e v e r after four y e a r s of fishing u n d e r the sales agreements, C h e a m fishers d e c i d e d that the terms b e c a m e s o restrictive that fishers w e r e limited to a f e w days of fishing per year, b e c a u s e of the increasing limits on their fishery. T h e i r r e s p o n s e w a s to pull out of the a g r e e m e n t process. From the time that C h e a m pulled out, St6:l6 Nation a n d the D F O w e r e unable to reach an a g r e e m e n t in all but o n e of the years f r o m 1998 to 2 0 0 2 in part b e c a u s e of D F O ' s insistence that C h e a m sign. A s explained to m e by o n e D F O official, "if C h e a m d o e s not sign, there will be no [sale] a g r e e m e n t . W e ' v e p r o c e e d e d in the past without C h e a m ' s signature, but not any more." C o n s e q u e n t l y , the decisions o n the  141  part of D F O a n d C h e a m prevented t h e legal sale of s a l m o n by Sto: 16 fishers. W h e n interviewed, C o r k e y Douglas m a d e mention of t h e fact that C h e a m ' s refusal to sign the sale a g r e e m e n t s d i d indeed prevent a 'sales' fishery f r o m taking place. C h e a m ' s position in regards to h o w t h e s a l m o n fishery s h o u l d b e c o n d u c t e d is set out in t h e R e a s o n s of J u d g e m e n t a s part provincial court c a s e R. v. Arthur Aleck, et al (/2000] B C P C 0 1 7 7 ) . T h e c a s e of R. v. Aleck involved t h e arrest of s e v e n t e e n m e m b e r s of t h e C h e a m b a n d for fishing within their traditional territory o n t h e Fraser during a time w h e n that fishery h a d b e e n closed by D F O . C o m i n g several years after the priorities established under Sparrow a n d t h e n e w A F S , t h e c a s e clearly reflects C h e a m ' s disdain over t h e post-Sparrow m a n a g e m e n t of t h e s a l m o n fishery.  Cheam  fishers w e r e continuing to fish in a c c o r d a n c e with their o w n m a n a g e m e n t s c h e m e . N o t e d in t h e court d o c u m e n t s is t h e fact that t h e C h e a m b a n d h a d not a g r e e d t o a fishing plan since 1 9 9 6 a n d that t h e C h e a m B a n d d i s a g r e e d with D F O ' s definition of conservation - o n e b a s e d o n stock rebuilding a s required u n d e r t h e Pacific S a l m o n C o m m i s s i o n , a n d o n e that C h e a m c o n t e n d s w a s d e v e l o p e d solely to s e c u r e future industrial fishing opportunities at the e x p e n s e of t h e Aboriginal fishery. This notion is held firmly by t h e C h e a m community a n d by o n e b a n d m e m b e r in particular.  Isaac  A l e c k quite proudly relayed to m e o n e afternoon that a s a part of his d e f e n s e regarding fishing c h a r g e s laid against him he w a s able to get t h e Fisheries official to admit, a s a part of his testimony, that the government did indeed m a n a g e t h e fishery 'to t h e industrial sector.' Isaac A l e c k d i d not tell m e t h e n a m e of t h e individual f r o m w h o m he  142  extracted that statement.  5  A s w a s spelled out in this case, C h e a m did not accept the licensing procedure particularly a s regards the dry rack fishery. C h e a m fishers with a c c e s s to c a n y o n fishing sites informed me that they did not feel they n e e d e d a license to fish the early Stuarts for their dry racks. Their family connections to the dry rack sites w e r e all that w a s n e c e s s a r y for t h e m to 'fish the c a n y o n . ' In r e s p o n s e to c o m m e n t s f o u n d in court d o c u m e n t s o n h o w C h e a m s h o u l d conduct their fishery, C h e a m fishers v o i c e d a reluctance to a d o p t alternative selective fishing m e t h o d s s u c h as b e a c h seines a n d fish traps (one or two being allowed per Band). U n d e r this plan, the n u m b e r of fishers w o u l d be limited. T h i s w a s of serious c o n c e r n to s o m e C h e a m fishers with w h o m I s p o k e . Isaac A l e c k s p o k e of his c o n c e r n regarding the concentration of the fishery into the h a n d s of only o n e or two families should D F O ' s selective, alternative m e t h o d s be a d o p t e d . His c o m m e n t s did not arise from c o n c e r n s regarding a n y particular family, but rather they reflected a c o n c e r n over a n y family's potential loss of a c c e s s to the fishery. Additionally, C h e a m fishers stressed the point that the m e t h o d s s u g g e s t e d by D F O w e r e not traditional fishing m e t h o d s of the C h e a m a n d they w e r e c o n c e r n e d about their ability to catch fish a n d the potential d a n g e r s such m e t h o d s m a y bring to t h e m ( R. v. Aleck, 2 0 0 0 : 5 ) .  Discussion C h e a m fishers, will tell y o u they are following tradition w h e n exercising their Aboriginal right to fish. W h i l e tradition may a p p e a r no d e e p e r t h a n , "we fish a s w e did  l s a a c A l e c k w a s acting as his o w n counsel in that case. Isaac A l e c k told me he did quite often act a s his o w n counsel b e c a u s e he did not feel the lawyers p r e s s e d strongly e n o u g h to get such statements from D F O officials. 45  143  in the past," a s reflected in Robert Douglas's q u o t e "my grandfather f i s h e d there, my father f i s h e d t h e r e a n d n o w me a n d my son fish there," for the C h e a m fishers, tradition has b e c o m e a m e a n s of justifying the present through r e m e m b e r i n g the past. A s M a u z e notes, cultural facts (or practices) reified in e t h n o g r a p h i c m o n o g r a p h s not only refer to the past; they also b e c o m e the f o u n d a t i o n for present a s well as future identities (1997:9). C h e a m ' s on-going a n d high profile battle with the g o v e r n m e n t regarding the Aboriginal right to fish relied o n a past that, at times, included actual warfare; a past that established their identity a s " W a r r i o r s on the W a t e r . " But a s Sider notes, t h e s e cultural facts or practices (and the s u b s e q u e n t identities that e m e r g e ) c a n n o t be v i e w e d in isolation of history or struggles with outside forces; often f o r m i n g the basis of internal a n t a g o n i s m s w h e n set in opposition to continuity (1993, 2 0 0 3 ) . W i t h regard to C h e a m , fishing as a traditional practice has b e e n filtered t h r o u g h over 100 y e a r s of regulation a n d recent court rulings that h a v e u p h e l d the constitutionality of Aboriginal rights as well as establishing a priority of t h o s e rights over others, albeit within strict limits. T h i s 'filtering' has resulted in a complex interconnection of past a n d present in addition to fueling equally complex internal a n t a g o n i s m s . C h e a m fishers will s a y that not only d o they have an Aboriginal right to fish b e c a u s e their ancestors h a v e f i s h e d the Fraser long before the c o m i n g of non-Natives to the region, but also b e c a u s e the S u p r e m e Court of C a n a d a a n d the C a n a d i a n Constitution 'says' that Aboriginal right exists. T h e y will also say that their protection of that right must be vigilantly g u a r d e d , s o m e saying, at all costs. T h i s notion of interconnectedness of past a n d present is e x a m i n e d by Sider in his discussion of the complex connections a n d oppositions b e t w e e n tradition a n d  144  continuity; particularly as regards internal antagonisms. Notes Sider, it is necessary to look closely a t the f o r m s of social relations, particularly a m o n g d o m i n a t e d p e o p l e s , to w h i c h the w o r d "tradition" refers; relations he maintains that often turn out to express claims for a u t o n o m y or partial a u t o n o m y in the midst of poverty a n d p o w e r l e s s n e s s m u c h more t h a n they express continuity with a real or imagined past ( 1 9 9 3 : 1 1 ) . C h e a m ' s position rests not only on the fact that C h e a m fishers h a v e b e e n fishing Fraser stocks o v e r millennia, but also o n the T h u r s d a y t h r o u g h S u n d a y f o o d f i s h i n g s c h e d u l e s allocated by D F O in the 1950s, 1960s a n d 1970s, as well as o n legislative a n d court actions occurring in the last 2 2 years; 1982 Constitution Act a n d the 1990 Sparrow decision. T h i s a p p r o a c h t a k e n by C h e a m reflects the d y n a m i s m of tradition as well a s the a n t a g o n i s m s b e t w e e n past a n d present, that are, as notes Sider, often t a k i n g s h a p e not in dramatic political struggles a n d incipient confrontations, but ordinary m o m e n t s of daily life such as fishing T h u r s d a y t h r o u g h S u n d a y as w a s the c a s e for m u c h of the post regulation era. It w a s the r e p e a t e d disruption of this T h u r s d a y t h r o u g h S u n d a y schedule that, in 1986, p r o m p t e d w h a t could be c o n s i d e r e d the most violent m o m e n t s on the river. For C h e a m the Aboriginal right to fish is manifest not o n l y in t h e exercise of fishing, but in determining w h e n that exercise may take place set within a f r a m e w o r k of this 'filtered tradition.' It also m e a n s positioning their m a n n e r of m a n a g i n g the fishery a b o v e D F O ' s m a n a g e m e n t plan. For d e c a d e s C h e a m (St6:l6) fishers w e r e held to Fisheries a n d O c e a n s conservation regulations d e s i g n e d to rebuild stocks for the industrial fishery, a d h e r i n g t o closures s u c h a s t h e c l o s u r e of t h e IFF for nearly t h e entire month of July in 1967. However in1986, C h e a m fishers d e c i d e d "not to put up  145  with it a n y m o r e , the w a y they determine conservation." A s Corky D o u g l a s d e s c r i b e d to me, " R e g a r d i n g stocks b o u n d for the upper tributaries of the Fraser River, if any fishery is allowed a h e a d of us - industrial, sport or other First Nation - t h e n it s h o w s us there is no conservation c o n c e r n . "  In effect, C h e a m has attempted to m a n a g e the resource,  relying o n a definition of conservation consistent with practices of the past rather than o n e d e s i g n e d to serve the industrial fishing sector. M e m b e r s of the community with w h o m I s p o k e indicated that t h r o u g h their hard f o u g h t battles they believed they h a d g a i n e d s o m e m e a s u r e of a u t o n o m y o n the river. T h e safety protocol has brought p e a c e to the reserve, h o w e v e r at the cost of increases in the n u m b e r of c h a r g e s laid. In the years since 1996, C h e a m has refused to sign sales a g r e e m e n t s negotiated b e t w e e n D F O a n d St6:l6 N a t i o n .  46  A sale a g r e e m e n t w a s  r e a c h e d in 2 0 0 1 without C h e a m ' s participation. I w a s told by Chief Q u i p p in January of 2 0 0 3 that C h e a m h a d not taken a firm stand of automatically refusing to sign the agreements. In w h a t w o u l d a p p e a r to be breaking f r o m their position of allowing Fisheries a n d O c e a n s any say in w h e n they may fish, C h e a m has negotiated it o w n a g r e e m e n t with Fisheries a n d O c e a n s regarding fishing dates a n d times. W h i l e not providing the for the legal sale of s a l m o n , the a g r e e m e n t did offer s o m e protection f r o m prosecution a n d the claims of illegal fishing leveled by fishers in both the industrial a n d sports sectors. C h e a m ' s a g r e e m e n t has also r e n d e r e d allowable established fishing practices, such as drifting, that h a d b e e n outlawed over a century ago. A s w a s spelled out in the  A c c o r d i n g to J u n e Quipp, St6:l6 fishers, including C h e a m fishers, w e r e allowed only 16 fishing days in the 1992 s o c k e y e s e a s o n fishing u n d e r the first sale agreement. 46  146  a g r e e m e n t C h e a m negotiated this past summer, drifting is a l l o w e d in the established fishing a r e a s of the C h e a m . A g a i n , the a g r e e m e n t offers protection f r o m sports fishers w h o protested this summer, a c c u s i n g C h e a m fishers of utilizing o u t l a w e d technologies. T h e 'legal' ability to drift in the w a t e r s off the C h e a m reserve has b e e n a particularly volatile issue a s high concentrations of sports fishing sites are located in the a r e a s u r r o u n d i n g C h e a m B e a c h . S o m e C h e a m fishers h a v e t a k e n issue with the a g r e e m e n t , questioning the ability of the plan to provide a d e q u a t e fishing opportunities d u e to the high concentration of sports fishers a l o n g the river bars off C h e a m B e a c h . I w a s sitting a l o n g the b e a c h at C h e a m w h e n Chief Sid D o u g l a s g a v e Isaac A l e c k his c o p y of the n e w a g r e e m e n t w h i c h h a d just b e e n s i g n e d . After e x a m i n i n g the document, Isaac A l e c k e x p r e s s e d his c o n c e r n over the limited fishing opportunities that w o u l d result f r o m the following this plan. Isaac Aleck r e m a r k e d to Lester N e d ' s s o n w h o had just w a l k e d up to chat, "Hey, tell your uncle (Chief Sid Douglas) t h e s e times aren't g o i n g to w o r k unless the sporties are m o v e d out of the area." Additionally, this a g r e e m e n t may h a v e further distanced the C h e a m community f r o m the remaining St6:l6 communities. C h e a m ' s a g r e e m e n t provided for fishing days a n d times not o p e n to other St6:l6 b a n d s .  47  C h e a m ' s often called 'renegade' activity is a d o u b l e e d g e d s w o r d : a d v a n c i n g the right of all St6:l6 fishers while simultaneously limiting opportunities for the legal sale of in river c a u g h t s a l m o n by those s a m e St6:l6 fishers. T h i s w a s evident in 1998 w h e n  " H o w e v e r , m e m b e r s of the remaining St6:l6 communities w h o h a v e family ties with the C h e a m c o m m u n i t y have fished under C h e a m ' s n e w a g r e e m e n t . Lester Ned's s o n , Henry N e d is a regular face at C h e a m Beach, his mother b e i n g a m e m b e r of the D o u g l a s family. 147  after only 4 8 hours the river w a s closed to Native fishing but not to sports fishing. Fishers f r o m C h e a m f i s h e d to provide f o o d for elders. H o w e v e r C h e a m ' s actions w e r e s e e n as protest fishery by many, including the c a n y o n w i n d dry fishers w h o w e r e calling for the arrest of t h o s e fishing during the closure. C o m p o u n d i n g the p r o b l e m w a s the fact that the so-called illegal fishery forced greater c o n c e r n s over the run. T h e s a m e fishers w h o h a v e rallied to demonstrate support for C h e a m fishers in times of confrontation h a v e at other times railed against the actions t a k e n by C h e a m fishers that resulted in confrontation. C h e a m fishers have readily a c c e p t e d the label of 'warriors on the water' a n d the c o r r e s p o n d i n g role as protectors of a way-of-life for all St6:l6 people. B a n d m e m b e r Isaac A l e c k s p o k e with m e at length of the importance of asserting the Aboriginal right to fish, regardless of any hardship. For his part, Isaac A l e c k has f o u n d himself in court d e f e n d i n g his Aboriginal right to fish, with the assistance of legal c o u n s e l a n d at times, without. In e s s e n c e C h e a m fishers have relied o n their tradition of fishing as m e a n s of differentiation, a m e a n s of resistance to outside forces of o p p r e s s i o n as d e s c r i b e d by Sider in his discussion of the L u m b e e Indians a n d their struggle for identity, or a s M a u z e notes, "tradition has b e c o m e a metaphor for identity" (1997). B e c a u s e the battle lines h a v e b e e n d r a w n a r o u n d their Aboriginal right to fish, or more particularly, the infringement of that right by colonial a n d state g o v e r n m e n t s , acts of direct action o n the part of C h e a m w o r k to further establish their identity as fisher people. C h e a m fishers s e e k to distance t h e m s e l v e s from the industrial fishery that has contributed to the infringement of their Aboriginal right to fish, while at the s a m e time participating in it, on their terms. It is for this r e a s o n that C h e a m fishers discontinued their participation in  148  the sale c o m p o n e n t of the Aboriginal Fisheries Strategy, a right for w h i c h m a n y g e n e r a t i o n s of C h e a m fishers fought tirelessly. A s I sat along the b e a c h at C h e a m over the s u m m e r s of 2 0 0 2 a n d 2 0 0 3 , I listened as fishers e x c h a n g e d c o m m e n t s over the latest 'tricks' pulled by D F O or incidents of near confrontation with the sporties w h o line the bars s u r r o u n d i n g C h e a m ' s stretch of the river. However, for the most part the conversations c e n t e r e d on w h o w a s fishing w h e r e , w h a t they w e r e catching, h o w many they w e r e catching, w h a t length of net is best or m o r e importantly, w h o ' s u p next in line t o drift. T h e latter c o m m e n t generally being followed by "Are y o u going after him?" In short w h a t I o b s e r v e d w a s w h a t has c o m e to constitute a tradition of fishing. C h e a m fishers will tell y o u St6:l6 fishers are the original commercial fishers. In the battle for the fish b e t w e e n D F O a n d C h e a m , both sides claim a u t o n o m y over the river, while neither side has a u t o n o m y over the river. C h e a m leaders say their decision to continue fishing a n d selling fish in d e f i a n c e of D F O regulations is not specifically an act of resistance or rebellion; it is simply lived life a n d their connection to the past. In the next chapter, I examine the Seabird Island band's very different response to fisheries regulation. W h i l e o n the surface Seabird Island's r e s p o n s e a p p e a r s to be in direct opposition of that of the C h e a m b a n d , community leaders, a s well as other St6:l6 leaders, maintain that the steps they t o o k in w o r k i n g out a Justice Protocol a g r e e m e n t with Fisheries a n d O c e a n s is as m u c h an affirmation of the Aboriginal right to fish as C h e a m ' s acts of p r o t e s t . A n a g r e e m e n t of another sort, negotiated b e t w e e n Fisheries officials a n d the Seabird Island Band seeks to lessen the b u r d e n of regulation o n c o m m u n i t y fishers. A n d as with the C h e a m b a n d , Seabird Island leaders consider  149  their specific r e s p o n s e to fisheries regulation to be rooted in tradition. In chapter 5 I discuss the c o m p o n e n t s of this unique a g r e e m e n t a s well as a d d r e s s a n u m b e r of q u e s t i o n s in c o n n e c t i o n with the a p p r o a c h t a k e n by the Seabird Island community. Additionally, I explore the possible connections b e t w e e n S e a b i r d Island's particular r e s p o n s e to regulation a n d their unique history as well as the w i n d dry fishery so closely a s s o c i a t e d with t h e m .  150  Chapter Five: Would It Have Been Easier to Go to Court? We needed an avenue to take care of our own people. So we sat down with Sgt. Emil Spitkoski, Chuck and Tyrone McNeil and DFO to try to prove to the rest of the world that we can sit at the same table, work towards the same goals, and have the same vision. This is giant step for our people. Clem Seymour, Councillor, Seabird Island (Sqwelqwels Ye St6:ld, November 2002). O n O c t o b e r 16, 2 0 0 2 representatives from t h e Department of Fisheries a n d O c e a n s , t h e Department of Justice C a n a d a , Federal Prosecution Service (FPS) a n d the Seabird Island First Nation met to sign a Protocol for a C o m m u n i t y B a s e d Initiative for Fisheries Offenses. T h e occasion w a s m a r k e d by a c h o r u s of d r u m m e r s a n d singers a s well a s over 1 0 0 m e m b e r s of t h e community a n d dignitaries.  Commenting  o n t h e agreement, B a n d Councillor a n d m e m b e r of t h e a g r e e m e n t negotiating t e a m , C l e m S e y m o u r r e m a r k e d that "It used to be that only certain p e o p l e w e r e held a c c o u n t a b l e . W i t h this agreement, all people will be held a c c o u n t a b l e in terms of looking after t h e resource, I felt that w a s important. This is t h e f o u n d a t i o n of a n e w relationship" (2002, Justice C a n a d a , V o l 3 No. 1). C l e m S e y m o u r also e x p l a i n e d that "Fish is a resource. T h e signing of this protocol w a s in h o p e s of preserving this resource for o u r grandchildren. T h e r e is no o n e group that c a n s a v e t h e s a l m o n alone, w e h a v e to w o r k together" (Sqwelqwels Ye St6:l6, November 2002).  Commenting  further o n t h e agreement, J o e Aleck, a n elder a n d facilitator for Qwi.qwelstom,  referred  to t h e a g r e e m e n t a s "win-win situation." Noted J o e Aleck, "In t h e normal court system, o n e c a s e could cost a s m u c h a s $ 1 3 , 5 0 0 to bring to terms. W h i l e o n t h e other h a n d , referring t h e case to Qwi:qwelstom could only cost $ 1 5 0 0 " ( S q w e l q w e l s Y e St6:l6, N o v e m b e r 2 0 0 2 ) . Q u o t i n g Chief Mark Point of Skowkale, "all of u s a r e stakeholders in s a l m o n . T h e s a l m o n a r e in peril. If there are n o s a l m o n , w h a t g o o d is a n Aboriginal 151  right?" (Sqwelqwels Ye St6:ld, November 2002). T h e Seabird Island a g r e e m e n t follows that of the E s k e t e m c First Nation in British C o l u m b i a in 2 0 0 1 . After hearing of the Esketemc First Nations agreement, m e m b e r s of the S e a b i r d Island b a n d council b e g a n meeting with D F O the R C M P a n d , eventually, the D e p a r t m e n t of Justice to d e s i g n an a g r e e m e n t that w o u l d serve their community. A s part of a discussion he a n d I h a d regarding the protocol agreement, T y r o n e McNeil of Seabird Island explained to me that, initially, the a g r e e m e n t w a s to be a w a y of dealing with the c o m m u n i t i e s ' relatively f e w n u m b e r s of i n f r a c t i o n s .  48  W h i l e l a u d e d by s o m e as  "a milestone in the long road of restoring First Nation c o m m u n i t y - b a s e d justice in C a n a d a , " important questions arise regarding the a g r e e m e n t - s o m e r e g a r d i n g the practicality of the a g r e e m e n t a n d others regarding its effects o n Aboriginal fishing rights. Additionally, I q u e s t i o n to w h a t extent h a v e the unique history of the Seabird Island c o m m u n i t y a n d the unique characteristics of the w i n d dry fishery - a fishery s t e e p e d in tradition a n d at the center of conservation c o n c e r n s e a c h s u m m e r contributed to the d e v e l o p m e n t of Seabird Island's Justice Protocol agreement.  Of  particular interest is Seabird's e m p h a s i s o n conservation a n d recognition of the importance of a collective a p p r o a c h to the fishery as spelled out in the agreement. Before a d d r e s s i n g this questions, I begin with a brief d e m o g r a p h i c o v e r v i e w of the S e a b i r d Island community as well as a brief history of the reserve.  N o t e s C l e m S e y m o u r regarding the n u m b e r of Seabird Island infractions are significantly lower t h a n the neighboring Aboriginal community of C h e a m . C l e m S e y m o u r reported that in most years there w e r e usually no more t h a n five c o m m u n i t y m e m b e r s c h a r g e d . Most years, no charges. C o m p a r e that with the h u n d r e d s of c a s e s from the 2 0 0 0 a n d 2 0 0 1 fishing s e a s o n still p e n d i n g in the C h e a m community, a c o m m u n i t y a half of the size of Seabird Island. 48  152  Community overview S e a b i r d Island is the largest of the St6:l6 reserves in h e c t a r a g e a n d is located in the Fraser River about seventy miles east of V a n c o u v e r .  T h e island is cut off from  the m a i n l a n d by M a r i a S l o u g h . Seabird Island consists of o n e reserve, comprising 2,140 hectares of w h i c h approximately 7 3 0 hectares are cultivated. T h e r e m a i n d e r of Table 7. Seabird Island Reserve Name  Location  Hectares  SEABIRD ISLAND  YALE DIST IN TPS 3&4, R28, W.6M ON SEABIRD ISLAND IN FRASER RIVER, 2 MILES EAST OF AGASSIZ  2,140.8  Source: Stats Canada First Nation Profile  the land b a s e is u s e d for residences, community buildings, rights-of-ways a n d e c o n o m i c d e v e l o p m e n t . T h e reserve has its o w n fire hall a n d fire equipment. Additional services provided on the reserve include a postal service a n d n u m e r o u s health a n d social service agencies. M a n y of the social programs are administered directly b y t h e S e a b i r d Island b a n d . T h e population is sufficient e n o u g h t o p r o v i d e f o r a n elementary school located o n the reserve. T h e most recent c e n s u s data report a total population of 7 4 9 - 5 0 3 o n reserve, another 2 2 8 residing off r e s e r v e  49  (Stats  C a n a d a , Registered Population, Oct. 2 0 0 4 ) . E m p l o y m e n t opportunities on the reserve are s o m e w h a t less limited t h a n with the C h e a m community. T h e majority of those w o r k i n g o n the reserve are e m p l o y e d by the administration office a n d various agencies a n d businesses providing services to c o m m u n i t y m e m b e r s . Other e c o n o m i c activities include S e a b i r d Island Cafe, Seabird Island Farms, a gas bar, a truck stop a n d a gift store. Farming, fishing, hunting a n d  'Of this 2 2 8 residing off reserve, 18 reside on a n o t h e r reserve. 153  various f o r m s of hourly w a g e labor are relied u p o n as a w a y of m a k i n g e n d s meet. A g a i n , as w i t h most Sto: 16 communities, including C h e a m , fishing is an essential c o m p o n e n t in individual h o u s e h o l d e c o n o m i e s . The Creation of a Community T h e Seabird Island community has a unique history. T h e n a m e Seabird c o m e s f r o m the A m e r i c a n steamer w h i c h ran a g r o u n d o n this island in 1858. T h e reserve land w a s established in 1879, however, the land w a s held in c o m m o n by the six upriver b a n d s until S e a b i r d Island Indian Band w a s created in 1958. T h e reserve c o m m u n i t y includes individuals relocated from s u r r o u n d i n g St6:l6 a n d N'laka'pamux communities a l o n g the Fraser River in a n attempt to promote agricultural pursuits a m o n g the Native peoples. Initially the residents of Seabird Island did not take easily to the role of farmer ( L e a c o c k 1949:192). Eleanor L e a c o c k notes that w h e n s h e visited t h e island in 1945, 6 6 y e a r s after families w e r e relocated to the a r e a , there a p p e a r e d to be only o n e farm on the island, two other farms having fallen into disrepair. T h e majority of the Indians g a r d e n i n g haphazardly, relying principally o n w a g e labor as loggers, railway w o r k e r s a n d s e a s o n a l h o p a n d berry pickers m u c h the s a m e as most in the valley.  Regardless  of Leacock's observations in the mid 1940s, the Seabird Island reserve has more a c r e a g e d e v o t e d to agriculture than any of the other St6:l6 reserves with approximately thirty-four percent of the reserve land given to agricultural practices. A s with other St6:l6 communities, fishing always b e e n important to their w a y of life. T h e importance of s a l m o n fishing w a s reaffirmed by the m e m b e r s of the Seabird Island c o m m u n i t y with w h o m I spoke. M a n y of the present d a y Fraser c a n y o n wind-dry fishing spots are o w n e d by m e m b e r s of the Seabird Island community. In recent years  154  the w i n d - d r y fishery has c o m e to be c o n s i d e r e d a hallmark of traditional St6:l6 life a n d the dry-rack families the keepers of that tradition. T h e w i n d dry fishery will be d i s c u s s e d in m o r e detail in s u b s e q u e n t sections of this chapter in an effort to explore the link b e t w e e n that 'supra-traditional fishery' a n d the decision o n the part of the S e a b i r d c o m m u n i t y to enter into the Justice agreement. F u n d e d u n d e r the Aboriginal Justice Strategy, a federal initiative of Justice a n d the Department of the Solicitor General, Seabird Island's unique Protocol a g r e e m e n t represents collaboration with the federal g o v e r n m e n t in r e s p o n s e to the g o v e r n m e n t ' s regulation of t h e fishery. T h r o u g h this collaborative effort all parties t o t h e a g r e e m e n t w o r k e d to a c h i e v e the goals e a c h party d e e m e d essential to a successful process. In summary, the Protocol provides for diversion both before a n d after c h a r g e s are laid. Additionally, diversion u n d e r the Protocol is c o n s e n s u a l . If the a c c u s e d , t h e community, D F O or the C r o w n (after c h a r g e s have b e e n laid) do not consent, the matter remains in the court system. If the a c c u s e d d o e s not a g r e e to the disposition r e a c h e d t h r o u g h the circle, the matter is referred back to the C r o w n . A s a part of the agreement, S e a b i r d Island negotiators insisted that the diversion be allowed to take up to o n e year, gaining s o m e c o n c e s s i o n from the g o v e r n m e n t on that point.  Seabird  Island negotiators also stipulated that the preamble to the Protocol contain a reference to the importance of a "collective process" with regard to the c o n s e r v a t i o n o f f i s h , a n d the place of "trust, respect a n d honesty" as the f o u n d a t i o n of healing a n d w e l l n e s s of its citizens. But c a n this collaboration d e s i g n e d to bring resolution function within a f r a m e w o r k of regulation, that, for s o m e in the community (as well as for St6:l6 fishers outside the community) has no resolution w h e n set within the context of the Aboriginal  155  right t o fish? Before addressing this question, I describe t h e p r o g r a m d e s i g n a t e d to h a n d l e individual c a s e s electing t o p r o c e e d under t h e protocol agreement: Qwi:qwelst6m.  A s a part of that discussion I will also a d d r e s s t h e compatibility of t h e  protocol a g r e e m e n t with t h e existing Qwi:qwelst6m structure. I b e g i n , first, with a look  at  Qwi:qwelst6m.  Justice as Healing C o m m e n t i n g o n t h e appropriateness of Qwi:qwelst6m a s a part of t h e Seabird diversion option, G r a n d Chief Clarence (Kat) Pennier r e m a r k e d : If y o u use Qwi:qwelst6m, y o u talk a b o u t t h e incident a n d look at t h e circumstances b e h i n d w h y it h a p p e n e d a n d h o w it impacted o n t h e individual a n d t h e family a s well a s t h e [impact] o n D F O o n o n e side a n d t h e p e r s o n w h o c r e a t e d t h e problem o n t h e other side - a n d c o m e to s o m e kind of resolution. It brings into play t h e individual a n d his family a n d t h e e x t e n d e d family too. (Justice C a n a d a , V o l . 3 No 1 , 2 0 0 2 ) Qwi.qwelstdm is t h e H a l q ' e m e y l e m w o r d that best describes "justice" a c c o r d i n g to Sto: Id worldview. It reflects a "way of life" that f o c u s e s o n relationships a n d t h e i n t e r c o n n e c t e d n e s s of all living life. T h e Qwi:qwelst6m p r o g r a m w a s initiated in 2 0 0 0 as a conflict resolution p r o g r a m rooted in traditional Sto: 16 justice. It is d e s c r i b e d a s being b a s e d u p o n traditional St6:l6 forms of dispute settlement w h e r e b y affected family a n d community m e m b e r s are called together to discuss w h a t h a s h a p p e n e d a n d to r e a c h a n a g r e e m e n t o n h o w to best repair t h e harm a n d restore b a l a n c e a n d h a r m o n y to t h e disrupted relationship. T h e program offers a n alternative t o t h e mainstream criminal a n d family court systems. Individuals w h o qualify c a n h a v e their c a s e s diverted f r o m t h e mainstream court system t o t h e Qwi:qwelst6m system. C a s e s c o m e to Qwhqwelstom from potentially four sources: self referral, c o m m u n i t y referral, R C M P referral or C r o w n C o u n s e l referral. Referrals a r e m a d e to a 156  St6:l6 Nation justice w o r k e r w h o determines h o w t h e case is to p r o c e e d t h r o u g h the system. C a s e s that are either more complex, or in n e e d of moderation only, are referred directly to the Elders council a n d m a y o r m a y not p r o c e e d t h r o u g h the r e m a i n d e r of t h e s y s t e m . O n c e confirmation h a s b e e n received that all parties h a v e c o n s e n t e d to the process, a facilitator is a s s i g n e d . T h e next step involves c o n v e n i n g a "circle" that c a n include the "offender" a n d supporters, victims a n d supporters, c o m m u n i t y m e m b e r s a n d leaders, Elders a n d community resources w o r k e r s . T h e circle m e e t s to d e t e r m i n e a plan of action or resolution. T h e resolution is monitored by a c o m m u n i t y m e m b e r monitor a n d a St6:l6 Nation justice worker. It c a n h a p p e n that more t h a n o n e circle meeting is necessary to obtain resolution, as w a s the c a s e with the S e a b i r d Island b a n d m e m b e r w h o elected to participate in the n e w protocol system. A s spelled out in the protocol agreement, the Seabird Island First Nation with Qwi:qwelst6m, D F O a n d F P S are to participate jointly in t h e d e v e l o p m e n t a n d implementation of this alternative, c o m m u n i t y - b a s e d enforcement. Identified a n d d e f i n e d in the a g r e e m e n t w e r e a n u m b e r of terms s u c h as "defendent" - the p e r s o n w h o is alleged to h a v e committed a n offense a n d "offense" - m e a n i n g a n offense u n d e r the Fisheries Act a n d a n y related legislation. T h e s e t w o terms p r o v e d problematic in the p r o c e s s i n g of the first a n d only case under t h e protocol a g r e e m e n t .  50  A s noted in the  protocol document, a n y citizen of the Seabird Island First Nation is eligible for diversion, however, the citizen or d e f e n d a n t must accept responsibility for t h e act or  T o date only o n e c a s e has b e e n p r o c e s s e d t h r o u g h the joint Protocol/Qwi:qwelst6m system. A c c o r d i n g to Clem Seymour, a f e w others with charges p e n d i n g w e r e considering the diversion process, h o w e v e r c h a r g e s w e r e never officially laid against a n y of those individuals. 5 0  157  o m i s s i o n that forms t h e basis of t h e offense a n d be willing to discuss t h e matter with Qwi:qwelst6m, m a k i n g every effort to reach a n a g r e e m e n t with Qwi:qwelst6m.  A n d as  spelled out in t h e agreement, provisions are m a d e for pre-charge a n d post-charge opportunities f o r diversion to t h e Qwi:qwelst6m system. So, h o w d o e s t h e diversion to the Qwi:qwelst6m system w o r k ? O n c e t h e d e f e n d a n t h a s c o n s e n t e d t o t h e diversion process, Qwi:qwelst6m is c o n t a c t e d to o r g a n i z e a traditional circle. A s spelled out in t h e l a n g u a g e of t h e protocol d o c u m e n t , Qwi:qwelst6m is to conduct sessions at a location that is suitable t o all parties, a s s o o n a s possible a n d in a w a y that integrates S e a b i r d Island First Nation oral traditional k n o w l e d g e in respect of t h e protection o f f i s h a n d wildlife a n d dispute resolution. T h e officer or another representative of D F O is given t h e opportunity to relate information a b o u t t h e impact of t h e offense o n t h e fisheries, t h e habitate a n d t h e c o m m u n i t y t o Q w i : q w e l s t 6 m either orally or in writing. A g a i n d r a w i n g directly from t h e l a n g u a g e of t h e agreement, at t h e e n d of t h e traditional circle, a n a g r e e m e n t is drafted outlining t h e disposition r e a c h e d b e t w e e n Qwi:qwelst6m a n d t h e defendant. T h e disposition of t h e c a s e is to be monitored by t h e St6:l6 Nation justice w o r k e r or c o m m u n i t y m e m b e r a n d is to be c o m p l e t e d within a year. Qwi:qwelst6m is responsible for k e e p i n g records of e a c h case so a s to monitor a n d evaluate t h e diversion program. In a n effort to d r a w conclusions a s to t h e 'fit' of t h e protocol a g r e e m e n t in t h e Qwi:qwelst6m f r a m e w o r k a s well as t h e practicality of utilizing a diversion p r o g r a m to adjudicate fisheries offenses, I will relate t h e particular circumstances of t h e first a n d only fisheries c a s e submitted to Qwi:qwelst6m for resolution. M y information regarding this c a s e c o m e s f r o m my m a n y conversations with C l e m S e y m o u r a n d f r o m my  158  c o n v e r s a t i o n with the individual electing to participate in the newly c r e a t e d diversion program.  Mr. R's Day in 'Court' In D e c e m b e r of 2 0 0 3 , 1 visited with Mr. R in his h o m e on the S e a b i r d Island reserve. A t that time Mr. R w a s making m o n e y by cutting E v e r g r e e n tress to be sold as Christmas trees. Reluctantly, I had to turn d o w n his offer to sell me a tree a s I w o u l d be crossing the border on my trip home. In the c o u r s e of the interview, Mr. R t a l k e d of his fishing e x p e r i e n c e s a n d that this w a s not the first time he h a d b e e n c h a r g e d with selling fish. His story regarding past fishing offense charges mirrored t h o s e related in earlier chapters; Fisheries' officers searching his truck for fish, confiscating fish a n d nets.  He  also t a l k e d of h o w he h a d participated in the Pilot Sale fisheries in the years that Seabird Island h a d s i g n e d a g r e e m e n t s a n d he pointed out the items in his h o m e he w a s able to procure with the f u n d s he received in those f i s h e r i e s .  51  Finally Mr. R  relayed the story of h o w he c a m e to participate in the n e w diversion p r o g r a m . In 2 0 0 2 a m e m b e r of the Seabird Island community - Mr. R - w a s c h a r g e d with illegally selling fish c a u g h t u n d e r a f o o d fish license. Mr. R h a d b e e n laid off f r o m his j o b a n d w a s receiving g o v e r n m e n t assistance checks. O n e m o n t h , he received a smaller c h e c k d u e to the fact that w a g e s e a r n e d in the previous m o n t h h a d b e e n subtracted f r o m w h a t he w a s to receive. Needing t h o s e 'lost f u n d s ' to m a k e e n d s meet, he d e c i d e d to sell fifteen fish he h a d c a u g h t under a f o o d fish license. He w a s c h a r g e d with violating the Fisheries Act for the sale of those fish. In dealing with this specific  S i n c e 1997 the Seabird Island b a n d has refused to sign sales a g r e e m e n t s a n d the present b a n d leadership remains firm in its refusal to sign sales a g r e e m e n t s in that they look u p o n the a g r e e m e n t s as an infringement of the Aboriginal right to fish. sl  159  c h a r g e , Mr. R elected t o utilize t h e n e w option m a d e available u n d e r t h e newly signed protocol a g r e e m e n t a n d divert his c a s e to Qwhqwelstdm rather t h a n g o i n g t o court. A c c o r d i n g to Mr. R it took nine 'circles' to finally settle his case. T h i n g s g o t off to a rocky start w h e n t h e fisheries officer s h o w e d up at t h e first circle meeting in uniform, c o m p l e t e with his side a r m .  A c c o r d i n g to C l e m Seymour, h e a t e d a r g u m e n t s e n s u e d  a n d t h e meeting e n d e d w h e n t h e principals involved w a l k e d out. Mr. R w a s eventually able t o tell his side of t h e story, with his c h e c k stub in h a n d . T h r o u g h o u t t h e n u m e r o u s circle meetings that took place, t h e n u m b e r of individuals involved in t h e circles ranged f r o m nine to twelve, including folks f r o m other Sto: 16 b a n d s . During t h e fourth circle, folks s h o w e d u p to tell Mr. R "he w a s in t h e w r o n g - w h a t he h a d d o n e w a s w r o n g . " T h r o u g h o u t t h e n u m e r o u s gatherings, folks, including elders, s h o w e d u p to challenge t h e appropriateness of w h a t w a s c o n s i d e r e d by t h e m a s "in e s s e n c e " admitting guilt to a n offense they d e e m e d a n Aboriginal right. Mr. R n o t e d that t h e elders w e r e o n his side all t h e w a y t h r o u g h . T h r o u g h o u t t h e entire process, t h e d e b a t e over t h e Aboriginal right to fish a n d t h e authority of D F O t o limit that right c o n t i n u e d . A s Mr. R explained to me, "There really w a s n ' t anything I could do, but sit quietly a n d listen a s it w a s inappropriate to interrupt t h e p e r s o n holding t h e feather." Resolution w a s finally reached, a n d as a part of t h e resolution a g r e e m e n t Mr. R. w a s required t o provide thirty fish to community elders. H e w a s also required to talk with school children about w h a t fishing m e a n s to Sto: 16 people. W h e n I a s k e d Mr. R h o w this process c o m p a r e d to w h a t h e could h a v e e x p e c t e d h a d h e "gone to court," he told me, "This process d r a g g e d o n for eight or nine months. My court date w a s set for four months after I w a s c h a r g e d . T h e fine w o u l d h a v e  160  probably b e e n a r o u n d o n e h u n d r e d dollars a n d I could h a v e paid that over time. W h e n I look b a c k o n it, it might have b e e n easier to just go to court."  However, Mr. R  did tell m e that he felt g o o d about the o u t c o m e of the circles. A n d he especially felt g o o d a b o u t giving fish to the community a n d s p e a k i n g with the school children. He c o n s i d e r e d both requirements to be important contributions o n his part to his community.  Alternative Justice and the Aboriginal Right to Fish: A Good Fit? T h e S e a b i r d Island a g r e e m e n t is not t h e first attempt by St6:l6 p e o p l e s t o h a n d l e so-called fisheries offenses outside the courts. A c c o r d i n g to Ernie Crey, f o r m e r Executive Director of the Lower Fraser Aboriginal Fishery C o m m i s s i o n , just s u c h an attempt w a s m a d e in the early years of the pilot sale p r o g r a m . Ernie Crey notes that a m e m b e r of the S u m a s b a n d w a s c h a r g e d by St6:l6 enforcement officers, the specific c h a r g e being, "fishing not in k e e p i n g with the terms of the Pilot Sale agreement" signed by the S u m a s B a n d . A chief's signature on the sale a g r e e m e n t binds all m e m b e r s to the terms of the a g r e e m e n t for the year in q u e s t i o n . T h e St6:l6 e n f o r c e m e n t officer a p p r o a c h e d the S u m a s chief, then Lester N e d , as to h o w to h a n d l e the situation. D F O a c c e p t e d the Band's proposal that the 'offending b a n d member, D F O a n d the St6:l6 e n f o r c e m e n t officer a p p e a r before the S u m a s b a n d council. T h e b a n d council d e t e r m i n e d that the individual w a s to h a v e his license s u s p e n d e d , a penalty similar to t h o s e o r d e r e d by the courts in past fisheries cases. T h e S e a b i r d Island Protocol is not the first attempt to b y p a s s the court system, but it is the first attempt at a formal a g r e e m e n t with the g o v e r n m e n t a g e n c i e s regulating the fishery as well as the first attempt at instituting a formal justice protocol to deal with  161  fisheries violations b a s e d o n traditional practices. In t h e case of t h e S u m a s b a n d member, t h e offense c o m m i t t e d w a s t e r m e d a violation of t h e terms of a specific a g r e e m e n t s i g n e d by his b a n d rather t h a n a violation of fisheries regulation in general, w h e r e a s in t h e S e a b i r d case, Mr. R w a s c h a r g e d with a violation t h e Fisheries Act. In the c a s e of t h e S u m a s offense, no discussion took place a s t o w h e t h e r o r not t h e d e c i s i o n t o t u r n t h e matter over t o t h e b a n d f o r r e m e d y w a s a n infringement o n t h a t individual's Aboriginal right to fish. W h i l e s o m e in t h e Seabird c o m m u n i t y v i e w e d Mr. R's decision t o use t h e Qwi:qwelst6m program rather than g o i n g t o court a s a n affirmation of Aboriginal rights, "a w a y of s h o w i n g w e c a n take of things ourselves" o t h e r s r e m a i n e d steadfast in their belief that participation in t h e newly i m p l e m e n t e d justice p r o g r a m w a s a n admission of guilt for breaking t h e white man's law; a law not r e c o g n i z e d in t h e context of t h e Aboriginal right to fish. In a n early interview with G r a n d Chief Clarence Pennier in t h e s u m m e r of 2 0 0 2 , at t h a t time in h i s position a s Executive Director o f t h e A b o r i g i n a l R i g h t s a n d Title portfolio for Sto: 16 Nation, I must admit that t h e first q u e s t i o n I p o s e d to G r a n d Chief Pennier regarding t h e Seabird Island a g r e e m e n t dealt with limits o n Aboriginal fishing rights. Specifically, I a s k e d G r a n d Chief Pennier, "Isn't signing a n a g r e e m e n t d e s i g n e d t o d e a l w i t h fisheries offenses a n a c c e p t a n c e of D F O ' s right t o limit that right?" A c c o r d i n g to G r a n d Chief Pennier, it w a s more a n a c k n o w l e d g m e n t t h a n a n a c c e p t a n c e . I w o u l d p o s e this s a m e question to C l e m S e y m o u r o n m o r e t h a n o n e o c c a s i o n a s w e talked over t h e next w e e k s leading up to t h e signing of t h e a g r e e m e n t in t h e fall of 2 0 0 2 . It is o n t h e issue of Aboriginal rights a n d title that s o m e m e m b e r s of the Seabird Island a s well a s other Sto: 16 b a n d s question t h e a p p r o p r i a t e n e s s of such  162  an agreement. W h i l e t h e community w a s s o m e w h a t divided o n t h e a g r e e m e n t , C l e m S e y m o u r n o t e d that c o n c e r n s o v e r t h e a g r e e m e n t in r e g a r d t o A b o r i g i n a l f i s h i n g rights c a m e f r o m outside t h e Seabird community for t h e most part. G i v e n that there is n o m a n d a t e t o participate in t h e diversion option m a d e possible by t h e protocol a g r e e m e n t , t h e decision to sign a n d implement t h e a g r e e m e n t did not h a v e to be put before t h e c o m m u n i t y for a vote. Individuals c h o o s e for t h e m s e l v e s w h e t h e r or not they w i s h to participate. Individuals m a y elect to have their c a s e s h e a r d in t h e courts. T h e courts h a v e b e e n t h e battleground over w h i c h gains h a v e b e e n m a d e in regards to Aboriginal rights, a n d fishing rights in particular. T h o s e c h o o s i n g to affirm their rights t h r o u g h t h e courts are i n d e e d left with that option. Not surprisingly s o m e m e m b e r s of t h e C h e a m c o m m u n i t y with w h o m I s p o k e d o consider participation in t h e protocol a g r e e m e n t a s a n infringement o n t h e Aboriginal right to fish - a n a c c e p t a n c e of regulations that w e r e i m p l e m e n t e d without consultation a n d without benefit t o Aboriginal peoples.  Some  m e m b e r s of t h e C h e a m community w e n t so far a s to state that regardless of t h e hardship - financial or otherwise - o n e did not relinquish t h e fight for t h e Aboriginal right to fish. T h e c o m m e n t s I received from other St6:l6 fishers r a n g e d f r o m , "I don't k n o w a n y t h i n g about t h e agreement" to "I think it's a g o o d thing" to "they c a n d o w h a t e v e r they want, they don't c o m e to the fishing meetings anyway." St6:l6 leader, Soowahlie Chief D o u g Kelly c o m m e n t e d to m e that he believed t h e a g r e e m e n t w a s "a g o o d thing." Additionally, D F O a n d R C M P officers w i t h w h o m I spoke, also p r a i s e d t h e agreement. B e y o n d t h e question of appropriateness in regards t o Aboriginal rights, q u e s t i o n s a r o s e a s to w h e t h e r or not t h e Qwi:qwelst6m p r o g r a m w a s d e s i g n e d to  163  a c c o m m o d a t e c a s e s regarding fishing violations. I s p o k e with Mr. R's justice c a s e w o r k e r over lunch o n e afternoon a n d she talked of s o m e of t h e p r o b l e m s e n c o u n t e r e d in this first attempt t o m e r g e t h e t w o p r o g r a m s . M o s t o f t h e p r o b l e m s s t e m m i n g , of course, f r o m t h e fact that this w a s a n e w situation with w h i c h n o o n e h a d a n y previous experience. Generally t h e cases that are diverted t o Qwi:qwelst6m require that t h e "offender" admit his or her guilt a n d then set about restoring h a r m o n y a n d balance with the aid of t h o s e participating in his or her circle. W h i l e harmony, balance, resolution a n d healing are, all, indeed t h e goals c o n t a i n e d in t h e l a n g u a g e of t h e S e a b i r d Island Protocol agreement, that harmony, balance, resolution a n d healing must c o m e without any a d m i s s i o n of guilt o n t h e part of t h e offender, at least that is h o w it is s u p p o s e d to w o r k a s it w a s repeatedly explained to me. H o w e v e r for s o m e in t h e cold, stark light of d a y it remains p u n i s h m e n t for a crime. T h e philosophy of Qwi:qwelst6m is to bring resolution such a s to prevent t h e offense f r o m occurring a g a i n . Given t h e situation today in r e g a r d to t h e fishery - limits o n fishing, frequent closures a n d t h e inability to participate in legal sales fisheries in that Seabird Island refuses t o sign t h e agreements, h o w c a n there be a resolution? W h a t w a s reiterated to m e w a s t h e importance of t h e a g r e e m e n t in healing o l d w o u n d s a n d establishing a partnership with t h e federal g o v e r n m e n t - a w a y for t h e Seabird Island community to look after itself within t h e context of a traditionally r e c o g n i z e d importance of t h e collective process with respect to t h e conservation of fish. This particular notion of c o n s e r v a t i o n b o u n d in tradition is specifically e x p r e s s e d in t h e Justice protocol agreement. E m b e d d e d in that tradition is also t h e notion of h a r m o n y a n d resolution a n d t h e reliance o n community b a s e d justice t o a c h i e v e that h a r m o n y  164  a n d resolution. Before discussing the a g r e e m e n t within a theoretical context, a trip to a Fraser C a n y o n dry rack c a m p provides the context n e c e s s a r y to explore the role of tradition in the d e v e l o p m e n t a n d implementation of the S e a b i r d Island Protocol. Life Lived as Tradition T h e s o c k e y e fishery that takes place in the c a n y o n e a c h s u m m e r is a swirling contradiction, m u c h the s a m e as the s u m m e r w a t e r s in the c a n y o n . Each s u m m e r a n u m b e r of separate fisheries take place all within the confines of the n a r r o w c a n y o n walls. W i n d dryers c o m p e t e with f o o d fishers as well as t h o s e fishers identified in the various St6:l6 communities as commercial fishers (these fishers will be d i s c u s s e d in following chapter). C o n t i n u e d g o v e r n m e n t interference in the c a n y o n fishery has p l a c e d t h e s e fisheries in opposition to e a c h other. At present the St6:l6 w i n d dry fishery is m a d e up of fifteen families w h o travel to their c a n y o n fishing c a m p s along the Fraser River just a b o v e Y a l e , BC every s u m m e r .  52  T h e fish that are c a u g h t in the  c a m p s are p r o c e s s e d o n site by cutting t h e m into filets a n d h a n g i n g t h e m o n racks to dry in the c a n y o n w i n d s . Quite often there will be more than o n e family " o n " a single rack. W h e n I a s k e d C l e m S e y m o u r about h o w many Seabird Island families h a d w i n d dry c a m p s , he listed s e v e n families from the Seabird Island c o m m u n i t y out of fifteen w i n d dry c a m p s . In her thesis entitled, "Regulating Tradition: Sto: 16 W i n d Drying a n d Aboriginal Rights," Caroline Butler discusses h o w "today, w i n d dried s a l m o n is v a l u e d as  T h e n u m b e r of available w i n d drying licenses has b e e n c a p p e d at the 15 established families w h o o w n / o c c u p y the existing sites. T h e limit o n the availability of a site and/or a license contributes increased 'cultural' significance of the w i n d or dry rack fishery. 52  165  s o m e t h i n g more t h a n f o o d ; it is constructed as a link to the past a n d to the river a n d as s u c h , is c o n s i d e r e d an important cultural activity" (1998:1). Notes Butler, St6:l6 w i n d dryers n o w label dried salmon as traditional f o o d (1988:2). Contributing directly to the increase in cultural significance of the w i n d dry fishery has b e e n the ever increasing g o v e r n m e n t regulation that has limited access to the s a l m o n resource. In her investigation of the w i n d dry fishery, Butler s p o k e to a n u m b e r of the w i n d drying families. O n e w i n d dry fisher with w h o m she s p o k e s u m m e d up the attitude of many, but certainly not all, of the w i n d drying families regarding the fish t a k e n for sale: ...with commercial fishing a n d drying, the o n e that is older, the o n e that is more culturally intact should be prioritized. (Butler 1998:13) Complicating the discussion is the fact that several of the w i n d dryers are also involved in the St6:l6 commercial fishery as well as the fact that s o m e families with dry rack spots h a v e u s e d their spots to fish 'commercially' taking their c a t c h h o m e u n - p r o c e s s e d or slightly p r o c e s s e d , purportedly for s a l e .  53  But I'll c o m e back to that discussion. It is  " T h a t is simply speculation on the part of s o m e fishers w h o take issue w i t h the actions of these fishers. I personally w i t n e s s e d no such activity. T h e story w a s relayed to m e o n e d a y while I w a s at Seabird Island. I w a s told of folks c o m i n g up ostensibly to participate in the dry rack fishery, but rather than processing their catch in a c c o r d a n c e with the stipulations in the dry rack license, they simply h a u l e d their c a t c h a w a y u n p r o c e s s e d . I w a s told of the n u a n c e s of the dry rack fishery a n d h o w y o u could tell w h e n f i s h e r s w e r e serious a b o u t p r o c e s s i n g their f i s h f o r the d r y rack. When p r e p a r i n g the fish to be fileted for the dry rack y o u h a v e to let the blood drain completely out. In order to do that y o u n e e d to 'get cutting' o n the fish right a w a y while the blood will drain out. It takes a certain a m o u n t of time to accomplish this task. S o m e o n e w h o has fish piling up a r o u n d t h e m b e c a u s e he/she is pulling the nets in too fast w a s "is probably not t h e r e to h a n g all their fish" (Referring t o s o c k e y e for this example, w h i c h is t h e critical run for dry a n d the run given the most attention by D F O . Spring s a l m o n that m a y still be r u n n i n g with the early Stuart s o c k e y e w e r e usually c a n n e d . But n o n e t h e l e s s they too h a d to be p r o c e s s e d on site in a c c o r d a n c e with the dry rack license). W h e t h e r any validity can be a s s i g n e d to the story or not, its importance lies in the fact that it clearly illustrates a situation of o p p o s i n g uses in the s a l m o n fishery as well as the varying opinions as to the priority of those uses. S u c h actions are not 166  n e c e s s a r y at this point to focus on the dry rack activities of o n e S e a b i r d Island family in a n effort to u n d e r s t a n d the 'supra'-traditional designation this fishery has received. U p o n revisiting this discussion, I will describe the events of the 1998 fishery o b s e r v e d by Butler as c o m p a r e d to my observations of the 2 0 0 2 c a n y o n fishery. O n July 2 0 , 2 0 0 2 I visited the dry rack c a m p of G r a n d Chief A r c h i e Charles a n d his c o m m o n law wife of thirty-four years, T i n a Jack f r o m the Chawathil First N a t i o n .  54  O n e of the first things I noticed w a s just h o w d a n g e r o u s fishing f r o m the side of the c a n y o n c a n be. Just two w e e k s earlier the water level in the river h a d b e e n at a thirtyyear high a n d w a s quite d a n g e r o u s . Just o n e w e e k before my visit, G r a n d Chief Charles' n e p h e w h a d fallen from the side of the c a n y o n at their c a m p site a n d d r o w n e d . G r a n d Chief Charles w a s born in L a k a h a m e n in 1 9 2 1 , but w a s a d o p t e d by Mary C h a r l e s of S e a b i r d Island in 1924. Mary Charles w a s also mother to E d n a D o u g l a s of C h e a m . During my visit with G r a n d Chief Charles, w h o w a s 8 3 at the time of our interview, he told m e that he had b e e n traveling to his family's dry rack site regularly since 1946. Initially he talked a bit about the loss of fishing opportunities over these last 58 y e a r s a n d h o w conservation c o n c e r n s regarding the early Stuart s o c k e y e have f o r c e d the closure of the river to Aboriginal fishers. A s the early Stuart run coincides with the optimal w i n d drying conditions, the increasing n u m b e r of closures has given  u n c o m m o n with g r o u p s relying on natural resources in crisis. T h e early Stuart s o c k e y e run is the only run that can be w i n d dried b e c a u s e it is the only s o c k e y e run c o m i n g in during the critical period of time w h e n c a n y o n conditions m a k e drying possible. T h i s run has b e e n closely monitored by D F O for several d e c a d e s ; s u c h monitoring often forcing river closures leaving the w i n d dry fishers with no fish to h a n g on their racks a n d no dried s a l m o n in their c u p b o a r d s . C h i e f Archie Charles w a s h o n o r e d as G r a n d Chief on J u n e 1 1 , 1993 for 2 2 y e a r s service to Seabird Island. 54  167  rise to tensions o n the river over the years. At the time of my Friday afternoon visit only a small portion of his very large (as m a n y a s 3 0 m e m b e r s ) e x t e n d e d family w a s there, the r e m a i n d e r d u e in that night a n d the next day. T u r n i n g to a more lighthearted discussions, G r a n d Chief C h a r l e s talked of fishing with his mother in earlier times at the very site w h e r e w e sat chatting, relating a n a m u s i n g story of h o w he h a d left the nets to h e a d d o w n to the p u b since the fish did not s e e m to be running. W h e n he arrived back at the c a m p , he d i s c o v e r e d eighteen fish in the net his mother h a d pulled out of the w a t e r by herself. A s importantly, G r a n d Chief Charles talked of passing the k n o w l e d g e of fishing onto the y o u n g people. He talked specifically of t e a c h i n g the children h o w to cut the fish. T o my a m a z e m e n t I w a t c h e d y o u n g children use knives with great skill. A s s e e m e d to be his way, G r a n d Chief Charles told yet another a m u s i n g story of h o w he h a d t a k e n great care in s h a r p e n i n g a knife for o n e of the youngsters. He h a n d e d the boy the knife w h o p r o c e e d e d to beat the blade o n every rock on his w a y d o w n to the cutting a r e a . Notes G r a n d Chief Charles, "That knife w a s n ' t sharp a n y m o r e , cut like a saw." B e c o m i n g serious a g a i n , G r a n d Chief Charles talked of the restrictions o n the fishery in the n a m e of conservation resulting in the loss of winter stores of dried s a l m o n . Usually arriving at his c a m p the first of July to begin fishing in time to utilize the c a n y o n w i n d s , I noticed that twenty days after being in his c a m p , very f e w pieces of s o c k e y e w e r e h a n g i n g a n d those that w e r e h a n g i n g , h a d not b e e n h a n g i n g very long; their flesh still bright red. G r a n d Chief Charles c o m m e n t e d that D F O h a d shut t h e m d o w n b e c a u s e of conservation c o n c e r n s regarding the early Stuart run (the run critical to the n e e d s of the dry rack fishers a n d the run o n w h i c h D F O has placed the most  168  restrictions as d i s c u s s e d in this a n d previous chapters). T h e dry rack fishers w e r e , again, in d a n g e r of losing the w a r m , dry c a n y o n w i n d s that w o u l d dry their catch before the flies arrived, signaling the e n d of the s e a s o n . G r a n d Chief Charles said he w o u l d probably remain in his c a m p until the middle of August, two w e e k s longer t h a n his family usually stayed in a n effort to get his fish. H o w e v e r the conditions so critical to the w i n d drying process w o u l d probably not hold out that long. G r a n d Chief Charles e x p r e s s e d his disdain for the g o v e r n m e n t policies that f o r c e d dry rack fishers to either fish prior to D F O ' s o p e n i n g the river a n d risk being c h a r g e d , or to wait a n d h o p e that an o p e n i n g w o u l d c o m e in time to utilize the c a n y o n w i n d s . He relayed a story of a n e n c o u n t e r he h a d with a Fisheries official w h o h a d c o m e from O t t a w a . In an effort to get his point a c r o s s in the terms of o n e culture to another, G r a n d Chief C h a r l e s r e m a r k e d to the g e n t l e m a n , "I never tell y o u w h e n to g o to M c D o n a l d ' s a n d get a hamburger. W h a t if I m a d e a law saying y o u can't h a v e h a m b u r g e r s after eight o'clock o n S u n d a y night? H o w w o u l d y o u like it?" G r a n d Chief Charles r e m a r k e d that he got no a n s w e r from the g e n t l e m a n . Returning to the discussion of the events w i t n e s s e d by Butler during her fieldwork in 1998, I c o m p a r e her observations with that of mine in the s u m m e r of 2 0 0 2 in a n effort to bring together the discussion of tradition a s it relates to the fishery as well as S e a b i r d Island's protocol agreement. A s a part of this d i s c u s s i o n I f o c u s o n the St6:l6 dry rack fishing plan for the s u m m e r of 2 0 0 2 ; a plan that d r a w s heavily o n the notion of tradition. Evident f r o m this discussion are reasons G r a n d Chief Charles has r e m a i n e d so c o n c e r n e d regarding fisheries regulation a n d Aboriginal fishing rights for  169  most of his fifty-eight years in the canyon fishery.  55  In the summer of 1998, 48 hours into the wind dry fishery, fishing on the Fraser was halted due to low water levels and record high water temperatures that were expected to significantly increase salmon mortality. Participants in the wind dry fishery pulled their nets in compliance with the DFO closure to protect the early Stuart run, while a sports fishery was still permitted in some areas of the river. This precipitated what has been described by most as a protest fishery, but referred to as a fishery for the elders by those initiating and participating in the fishery. In any event, the pressure placed on the sockeye by the protest/elders fishery was used as a further justification to keep the river closed to Aboriginal fishing, resulting in the denial of any further wind dry openings. Wind dryers from Seabird Island demanded to know why the protest fishery was not shut down and demanded the arrest of their friends and cousins who were protesting for the constitutionally protected rights of the wind dry fishers (Brown and Butler 1999). Fishers from several St6:l6 communities congregated at Archie Charles' fish camp in to talk with fisheries officers about the dire situation. Many present at the meeting spoke of how they were standing up for their elders. Many referred to the court cases that have shaped Aboriginal rights: Delgamuukw, Sparrow, Guerin. Some talked of being able to trace their family history to the Yale fish camps for over 500 years. Some would be charged for their participation in the fishery. But in the end, only a total authorized catch of 1600 sockeye was allowed (Chilliwack Progress, July 14, 1998). Looking at the summer of 2002, once again conservation concerns kept dry rack "Grand Chief Archie Charles had good reason to be concerned. Heightened concern over the early Stuart run forced strict closures in the 1970s. 170  fishers off the river for most of their critical drying time. A n examination of the catch data for the last w e e k of J u n e a n d first w e e k of July reveals no s o c k e y e catches. For the s e c o n d w e e k in July a catch of only 2 0 s o c k e y e w a s r e c o r d e d , but t h e s e w e r e not c a u g h t u n d e r a dry rack license. In short there w e r e no catches for the dry rack fishers until very close to the e n d of the optimal drying time. It's no w o n d e r that w h e n I visited A r c h i e Charles' fish c a m p near the e n d of July, I s a w very f e w fish h a n g i n g . Just the w e e k prior to my visit at the Charles' c a m p I attended a fisheries meeting at Sto: 16 Nation w h e r e fishers w e r e expressing g r a v e c o n c e r n over the fact they h a d not b e e n a l l o w e d on the water. Most h a d lost faith in D F O ' s conservation restrictions, citing their o w n observations a s a r e a s o n to begin fishing. Most w e r e c o n v i n c e d that the early Stuarts h a d p a s s e d t h r o u g h Sto: 16 territory a n d that D F O ' s decision to k e e p t h e m off the river w a s arbitrary a n d counter to the m a n d a t e s of Sparrow.  It w a s a W e d n e s d a y  afternoon a n d by the e n d of the meeting many h a d d e c i d e d they w e r e g o i n g fishing with or without a p p r o v a l from D F O ; "their traditional T h u r s d a y t h r o u g h S u n d a y fishery" a s I h e a r d f r o m a voice across the room. T h e fishery o p e n e d for the first time that s u m m e r on T h u r s d a y , July 18.  Discussion Bringing this back to the Seabird Island Protocol A g r e e m e n t , a s I listened to C l e m S e y m o u r talk about the importance of the conservation of fish for the Seabird Island First Nation - language printed in the first p a g e of the a g r e e m e n t - 1 b e g a n to piece t o g e t h e r a picture in my mind of a connection linking the unique history of the Seabird Island community as well as the struggles f a c e d by the w i n d dry fishers w h o s e fishing opportunities are so closely monitored by D F O . Protection of the closely  171  monitored r u n c o u l d c o m e in t h e f o r m of a protocol a g r e e m e n t that 'establishes itself a s an effective tool for t h e protection a n d conservation of that s a l m o n resource. W h e t h e r rooted in a real or imagined tradition, t h e protocol a g r e e m e n t w o r k s to establish t h e Seabird Island c o m m u n i t y a s t h e ultimate guardians of their s a l m o n resource. In order to u n d e r s t a n d h o w t h e Seabird Island fishery is s u p p o r t e d by tradition, a g a i n w h e t h e r real or imagined, I refer to t h e protocol a g r e e m e n t itself, t h e 2 0 0 2 Dry R a c k fishing plan drafted by Sto: 16 Nation a n d t h e mission statement of t h e Qwi:qwelst6m p r o g r a m ; all three being directly c o n n e c t e d to t h e Seabird Island C o m m u n i t y a n d all three repeatedly affirming a connection with a traditional Sto: 16 past. Examining e a c h , b e g i n n i n g with t h e protocol a g r e e m e n t itself, this a g r e e m e n t seeks to r e m o v e t h e adjudication of fisheries offenses f r o m t h e court room a n d relocate t h e m into a system b a s e d o n a Sto: 16 worldview; a w o r l d v i e w that f o c u s e s o n restoring balance a n d h a r m o n y to disrupted relationship a n d a w o r l d view b a s e d u p o n so-called traditional forms of dispute settlement. R e g a r d i n g t h e 2 0 0 2 dry rack fishing plan, a s I sat in t h e fisheries meeting just prior to my visit t o t h e Charles' fish c a m p , I h e a r d several fishers s p e a k of a reluctance to commit a n y plan, catch total, anything to paper in that D F O h a d a history of casting in stone a n y c o n c e s s i o n s m a d e by Sto: 16 f i s h e r s .  56  H o w e v e r t h e 2 0 0 2 dry rack plan  sets d o w n o n p a p e r very specific limits regarding t h e fishery; a fishery b a s e d o n those guidelines not d e s i g n e d just to fill t h e c u p b o a r d s of Sto: 16 families with dried s a l m o n for  l n t h e late 1970s w i n d dry fishers complied w h e n a s k e d to give up their fishery f o r o n e y e a r o n l y . However, t h e b a n remained in effect for several more years. Notes J u n e Q u i p p , " W e w e r e never allowed to fish at this time of t h e year f o r quite a f e w years" (Chilliwack Progress, July 14, 1998). 56  172  the w i n t e r a s m u c h as to protect a tradition. T h e stated p u r p o s e of the fishing plan: to g u i d e the activities described h e r e u n d e r to be carried out by m e m b e r s of the Sto: 16 people to ensure a n d orderly a n d traditional fishery a n d to allow for the instruction of St6:l6 community m e m b e r s by elders in proper t e c h n i q u e s for processing fish by drying on racks. (Sto: 16 2 0 0 2 Dry R a c k Fishing Plan, page 1) Dip nets c a n only be u s e d after proper instruction by a n elder a n d no o n e m a y participate in the fishery without the permission of family elders having jurisdiction over the fishing a n d processing sites.  A s noted Butler in her 1998 examination of the dry  rack fishery, for m a n y of the fishers the fishery had b e c o m e the hallmark of St6:l6 tradition. This conceptualization of the fishery is indeed reinforced in the fishing plan submitted to D F O that sets out the guideline for h o w the fishery w o u l d be c o n d u c t e d . All three e x a m p l e s have at their core, a connection with the past; tradition. In his examination of the history of the L u m b e e Indians in North Carolina, Sider explains that tradition c a n n o t be v i e w e d in isolation of history or struggles with outside forces. But he also tell us that tradition is a m e a n s of resistance, a w a y of distancing o p p r e s s e d g r o u p s f r o m their o p p r e s s o r s f o u n d in that history of struggle. Notes Sider: Tradition n a m e s processes of continuing cultural a n d social construction t h r o u g h w h i c h they seek to distance t h e m s e l v e s f r o m the d o m i n a n t society. (1993:72) Additionally, M a u z e tells us that "tradition interprets the past a c c o r d i n g to the n e e d s of the present" (1997:6). Both Sider a n d M a u z e ' s notions regarding tradition a n d its function h a v e far reaching implications for examining the m o v e m e n t on the part of S e a b i r d Island to initiate a n d sign a Justice protocol as well a s for establishing a c o n n e c t i o n b e t w e e n that a g r e e m e n t a n d the conceptualization of a traditional fishery. T h e c o n n e c t i o n cannot be d r a w n in bold marker a n d there is no s m o k i n g g u n , it is  173  rather, a subtle c o n n e c t i o n that reflects t h e conceptualization of a fishery; a w a y of life; community, family - a c o n n e c t i o n to a past that m a y well b e m o r e i m a g i n e d t h a n real. T h i s u n d e r s t a n d i n g t h e fishery is created not only by distancing f r o m t h e oppressor, but also f r o m other Sto: 16 communities with o p p o s i n g a g e n d a s , a s regards t h e fishery. A n u m b e r of t h e w i n d dry fishers h a v e sought to distance t h e m s e l v e s f r o m t h e commercial fishery, while at t h e s a m e time participating in it, albeit o n their o w n terms a n d in a f a s h i o n they d e e m more palatable. T h e idea of h a r m o n y also informs t h e narratives of tradition, particularly a s regards Qwi:qwelst6m.  Qwi:qwelst6m m e a n s to live in harmony, help o n e a n o t h e r to  survive, to care a n d share a m o n g s t all people. N a d e r (1990) in h e r e x a m i n a t i o n of indigenous justice m o v e m e n t s rooted in notions of tradition a n d h a r m o n y , notes that t h e s e ideologies h a v e b e e n s h a p e d by t h e colonial encounter, a n d that they reflect a n d m a s k t h e internal struggles that arose a s a c o n s e q u e n c e . T h i s is i n d e e d evident w h e n a p p l i e d t o examinations of justice systems but interactions with d o m i n a n t p o w e r s in regard t o a c c e s s to natural resources - salmon. Drawing o n Nader's d i s c u s s i o n , Bruce Miller explains that using this argument, communities are said to m a n a g e their relations with t h e outside w o r l d by e m p h a s i z i n g a purportedly cooperative, h a r m o n i e s past a n d d e - e m p h a s i z i n g social conflict a n d contradiction in t h e present (2001:13). In t h e case of t h e S e a b i r d protocol, resolution is sought f r o m inside t h e c o m m u n i t y t h r o u g h a n idealized past. T h r o u g h t h e protocol agreement, t h e community is s e e k i n g to establish a partnership with t h e authority that, for t h e past century a n d a half, h a s h a d ultimate control over that past a n d continues, regardless of t h e p r e s e n c e of a n y agreement, to h a v e control over t h e present.  174  In the next chapter a n d final case study, I focus o n the Sto: 16 c o m m e r i c a l fishery, specifically o n participation in fisheries c o n d u c t e d within the b o u n d a r i e s of the law. C o n s i d e r e d in my discussion is the notion held by m a n y that, participation in s u c h fisheries runs counter to their Aboriginal right to fish. A l s o c o n s i d e r e d in my discussion is the intersection of that fishery with other c a n y o n fisheries s u c h as the dry rack fishery. M o r e importantly I examine the Sto: 16 commercial fishery within a context of resistance a n d I specifically s e e k to connect that fishery with Sto: 16 tradition as it is u s e d to affirm an Aboriginal right to fish.  175  Chapter Six: Highliners and Moneymakers It's late July and I'm finally getting a chance to "go fishing" and in the canyon no less. Ken Malloway, his wife and I head out to set the nets. Along the way Ken Malloway points out his mother's now run down dry rack at Lady Franklin Rock and relates stories of fishing in the canyon. In a couple of hours we will return to check the nets and bring them in. Little did I know just how exciting my first fishing trip would be....but that's a story for another time. In early July of 2 0 0 2 , t h e prospect f o r a sales a g r e e m e n t w a s bleak. B y m i d m o n t h it w o u l d b e d e t e r m i n e d - no a g r e e m e n t w o u l d be s i g n e d . T h e sale of a n y Indian c a u g h t s a l m o n w o u l d h a v e to be c o n d u c t e d in t h e s h a d o w s . Flash f o r w a r d t o early July 2 0 0 3 , a n a g r e e m e n t is signed. Sto: 16 fishers w o u l d be able to sell their catch without the fear of prosecution a n d without t h e fear of losing their boats, trucks, nets, totes a n d fish. Fishers awaited w o r d a s to w h e n t h e river w o u l d b e o p e n f o r fishing u n d e r t h e newly s i g n e d sales agreement. But o n July 28, 2 0 0 3 t h e w o r d they got w a s "NO." T h e prospect of a legal, commercial fishery w a s g o n e w h e n J u d g e Kitchen ruled that, a m o n g other things, t h e Aboriginal fishery w a s a race b a s e d fishery a n d therefore illegal u n d e r t h e Charter of Rights a n d F r e e d o m s .  57  Fisheries a n d O c e a n s r e s p o n d e d  by w i t h d r a w i n g t h e agreement. Sto: 16 fishers w o u l d continue to fight f o r a legally s a n c t i o n e d right to sell their catch, in t h e h o p e s that constraints o n t h e disposition of their c a t c h w o u l d be a thing of t h e past. H o w that fight h a s p l a y e d out o n t h e water over t h e y e a r s h a s g e n e r a t e d debate a n d discussion within t h e Sto: 16 fishery a s well as the larger industrial fishery. Paramount to that d e b a t e a m o n g t h e Sto: 16 b a n d s h a s b e e n t h e notion h e l d b y m a n y that participation in s u c h a g r e e m e n t s r u n s c o u n t e r t o their Aboriginal right to fish. For many years, b a n d s w o u l d not sign t h e a g r e e m e n t s  5 7  R v. Kapp et al. 2 0 0 3 B C P C 2 7 9 (Kitchen Prov. Ct. J.). 176  claiming that participation in t h e sale a g r e e m e n t fisheries infringed o n t h e Aboriginal right t o fish. W i t h i n t h e larger industrial fishing community, t h e d e b a t e hinges o n t h e specific l a n g u a g e of t h e fisheries regulation a d o p t e d in 1888 declaring that Native peoples h a d t h e right to fish for f o o d , social a n d ceremonial p u r p o s e s but not for sale or barter outside t h e licensing structure created by that regulation; l a n g u a g e that h a s c r e a t e d a s o m e w h a t narrow understanding of t h e importance of fishing in Sto: Id household economies. A s previously m e n t i o n e d , the Pilot Sale fishery c h a n g e d t h e f a c e of t h e Fraser River s a l m o n fishery in regards to the industrial fishery as well as t h e Aboriginal fishery. T h e c h a n g e h a s b e e n clearly evident in t h e St6:l6 fishery, particularly as regards t h e c a n y o n fishery. A s noted earlier t h e n u m b e r of 'licensed' fishers d o u b l e d immediately u p o n implementation of t h e project. T h o u g h not all of t h o s e w h o obtained a d e s i g n a t i o n card f o r fishing, fished, t h e n u m b e r s of fishers o n t h e river d i d increase significantly. A n d almost as immediately, long established fishers b e g a n t o voice their c o n c e r n over t h e increased pressure o n t h e resource as well as t h e effects of overc r o w d i n g o n t h e water. A s noted in the previous chapter, a m o n g t h e most vocal in that regard w e r e t h e Seabird Island w i n d d r y fishers. A l s o of c o n c e r n w a s t h e increased level of violence o n t h e water as fishers literally fought for fishing space. A n u m b e r of fishers with w h o m I spoke, talked of h o w they did not return to their c a n y o n fishing spots after t h e first c o u p l e of years of t h e P S A b e c a u s e of t h e c r o w d i n g a n d violence. Notes o n e fisher from Shxw'ow'hamel  with w h o m I spoke, "our fishers h a v e b e c o m e  m e a n . " In o n e of o u r m a n y conversations S o n n y McHalsie talked of increased incidences of 'corking' or t h e placing of nets directly in front of other set nets.  177  A c c u s a t i o n s of g r e e d also p e r m e a t e d t h e n e w fishery.  R e m a r k i n g o n her decision not  to fish in 1993, t h e s e c o n d year of t h e PSA, o n e St6:l6 fisher told h e r story t o t h e press. Sherry T s c h e t t e r reported to the Abbottsford/Clearbrook  Times, that s h e w a s shut out  of t h e Aboriginal fishery in 1 9 9 2 (the first year of t h e P S A ) " b e c a u s e t o o many b a n d m e m b e r s b e c a m e greedy" (March 10, 1993). In t h e s a m e article, M s . T s c h e t t e r noted "that since t h e A F S c a m e into effect, t h e concept of fishing t o provide f o o d f o r t h e winter h a s fallen by t h e wayside." Ms. Tschetter reported that others h a d their nets cut a n d they w e r e t h r e a t e n e d . Remarks Ms. Tschetter, "My nets didn't get cut b e c a u s e I couldn't get t h e m in t h e water" (Abbottsford/Clearbrook  Times, M a r c h 10, 1993).  In my  c o n v e r s a t i o n s with K e n Malloway he noted that for some, it w a s i n d e e d all a b o u t t h e money. A c h a n c e to make, what s o m e believed to be, e n o r m o u s profits did lure many to t h e river w h o h a d not f i s h e d in t h e past, driving off m a n y w h o regularly f i s h e d for f o o d a n d sales. H o w e v e r for those fishers w h o s e livelihood w a s already tied to t h e sale of in-river c a u g h t s a l m o n , in particular those fishers k n o w n to t h e St6:l6 c o m m u n i t y as commercial fishers, t h e P S A w a s as m u c h about t h e ability to c o n t i n u e that livelihood no longer at risk f o r losing their catch, boats, vehicles a n d e q u i p m e n t a s it w a s a n opportunity to exercise their Aboriginal right to fish a s traditional St6:l6 fishers.  N o t e s Bruce Miller in his discussion of Coast Salish justice issues, " F o r m a n y elders, g r e e d is a primary issue, including t h e hoarding of money, but, especially, h o a r d i n g of resources available to t h e b a n d as a w h o l e " (2001:132). In more t h a n o n e of o u r conversations, K e n Malloway d i s c u s s e d with me t h e a c c u s a t i o n s of g r e e d leveled at him. Interestingly e n o u g h , w h e n K e n Malloway's n a m e w a s m e n t i o n e d to me, it w a s to tell me a story of h o w "Kenny h a d given fish away." O n e St6:l6 fisher with w h o m I s p o k e told me that, w h e n K e n Malloway d i s c o v e r e d t h e St6:l6 catering business couldn't afford t o serve s a l m o n b e c a u s e they h a d to buy it at t h e g r o c e r y store, " K e n n y picked u p t h e p h o n e a n d called the place w h e r e he stores his (frozen) s a l m o n a n d told t h e m t o give t h e caterers all t h e salmon they n e e d e d a n d only c h a r g e t h e m t h e cost of storage." 58  178  In this chapter I discuss the legal sale of s a l m o n as it has b e e n c o n d u c t e d under the a u s p i c i o u s of sales a g r e e m e n t s a n d commercial licensing. W h i l e e n g a g i n g a n d at times e x p a n d i n g o n Bierwert's discussion of outlaw fishing a n d its role a s a n assertion of a g e n c y , I specifically f o c u s on two St6:l6 highliners a n d m o n e y m a k e r s : Ken M a l l o w a y a n d Lester N e d . By examining 'legal fishing' as it relates to a n opportunity to m a k e a living within a context of resistance a n d a c c o m m o d a t i o n , I s e e k to u n c o v e r the simultaneously c o n v e r g i n g a n d diverging a g e n d a s within the Sto: 16 c a n y o n fishery; the c a n y o n fishery being important to all three of my case study g r o u p s . Further I s e e k to reveal h o w participation in a legal sales fishery represents a f o r m of agency. St6:l6 fishers such as Ken Malloway a n d Lester N e d h a v e b e e n fighting for an Aboriginal right to fish a n d the right to a legal commercial fishery for m a n y years. Both h a v e b e e n active in Sto: 16 politics a n d are leaders in the c a u s e of the Aboriginal right to fish. Lester N e d has fought for an Aboriginal right to fish that includes the ability to legally sell in-river c a u g h t s a l m o n , not only in his role as part of the original negotiating t e a m in 1992, but also a s the first Fisheries Portfolio holder in the newly f o r m e d St6:l6 Nation in 1994. Ernie Crey c o m m e n t e d to me as to w h a t a powerful force Lester N e d w a s in his position of Portfolio holder; pressing for a g r e e m e n t s that w o u l d allow St6:l6 fishers an opportunity to m a k e a living off the fisheries resource. Prior to the formation of the St6:l6 Nation in 1994, Lester N e d w a s the fisheries representative for the St6:l6 Tribal Council, o n e of the entities c o m i n g t o g e t h e r in 1994 to f o r m the St6:l6 Nation. A s a fisher w h o has sold his catch in the y e a r s prior to the Pilot Sale A r r a n g e m e n t in 1992, Lester N e d has w o r k e d to s e c u r e a fishery free of arrest a n d the possible loss of fish a n d equipment. T h i s is very important to Lester  179  N e d , w h o s e capital investment is great w h e n c o m p a r e d with that of most Sto: 16 fishers. However, Lester Ned's commitment to the Aboriginal right to sell fish runs m u c h d e e p e r t h a n that. A n u m b e r of fishers with w h o m I spoke, talked highly of Lester Ned's leadership in the fishery. A s o n e individual r e m a r k e d to me, " T h e f i s h e r m e n respect Lester." A s has Lester Ned, Ken Malloway has f o u g h t hard for the legal right to sell his c a t c h a n d has held leadership positions in regards to the f i s h e r y .  59  Ken Malloway also  participated in the negotiations in 1992 w h e n the first pilot sale fishery w a s i m p l e m e n t e d . Ken Malloway b e g a n fishing o n his o w n as a teenager, a n d he has always sold s a l m o n .  60  Even as a teenager, Ken Malloway w a s o u t s p o k e n regarding an  Aboriginal right to legally sell salmon. He talked to me of his first attempt at public s p e a k i n g , w h e n at the a g e of 18, he a d d r e s s e d a g r o u p regarding the legal sale of Indian c a u g h t s a l m o n . A s Ken Malloway d e s c r i b e d it, "I w a s so nervous. I h a d everything I w a n t e d to say written d o w n , but I w a s too nervous to r e a d it." But that w a s over thirty years ago, a n d since that time, Ken Malloway has c o n t i n u e d to fight for the Aboriginal right to fish, a right that he maintains includes the right to sell his catch. Q u o t i n g Ken Malloway:  A t present, Ken Malloway is co-chairman of the BC Aboriginal Fisheries C o m m i s s i o n , m a n a g e r of the St6:l6 Fisheries Committee a n d a m e m b e r of the Fraser Panel of the Pacific S a l m o n C o m m i s s i o n . 59  ^ K e n M a l l o w a y told m e stories of h o w as a teenager, he h a d m a d e e n o u g h m o n e y by selling s a l m o n at $2.00 e a c h to p u r c h a s e a n u m b e r of cars he h o p e d to eventually 'fix up'. T h e cars b e g a n to clutter Ken Malloway's m o m ' s front yard a n d finally after r e p e a t e d requests to "do s o m e t h i n g about the cars" h a d g o n e u n h e e d e d , she h a d the cars h a u l e d away. Ken Malloway smiled as he noted, "I h a d s o m e real classics, w o u l d a b e e n worth a lot of m o n e y today." 180  I don't m a k e a n y b o n e s about selling fish. I always h a v e a n d always will. I'm not t h e first, my father wasn't t h e first, m y grandfather w a s n ' t t h e first. (Chilliwack Progress, N o v e m b e r 9, 1 9 8 8 ) T h i s fight h a s resulted in t h o u s a n d s of dollars in legal f e e s a n d t h e loss of nets a n d s a l m o n . In F e b r u a r y of 1989, K e n Malloway w a s set t o a p p e a r in court o n c h a r g e s of illegally selling fish. His d e f e n s e hinged o n t h e constitutional right t o fish; t h e challenge b a s e d o n t h e e v i d e n c e that Natives historically sold a n d bartered fish a s r e c o r d e d specifically in t h e Fort Langely Journals, a n d that a s a result, Natives h a v e a n Aboriginal right t o fish. This w a s t h e s a m e defense set forth in t h e V a n d e r Peet case, h o w e v e r ultimately to n o avail. In o n e of our interviews K e n Mallloway told m e that he w a s c h a r g e d with illegally selling fish roughly t h e s a m e time a s Dorothy V a n d e r Peet ( w h o m K e n said h e later f o u n d out w a s a cousin of his). Notes K e n Malloway, rather t h a n using his case or o n e of S a m Douglas', St6:l6 Nation leaders o p t e d to press f o r w a r d in their claim of a n Aboriginal right to fish f o c u s i n g o n t h e c h a r g e s laid against Mrs. V a n d e r Peet. Interestingly e n o u g h , at that time K e n M a l l o w a y w a s c h a r g e d w i t h selling only eighteen s a l m o n , eight more than Mrs. V a n d e r Peet. St6:l6 fishers maintain they are t h e original commercial fishers a n d that their A b o r i g i n a l right t o fish includes t h e right to trade, sell o r barter their catch. Q u o t i n g K e n Malloway again: W e w e r e t h e first commercial f i s h e r m e n of B.C. until w e w e r e s q u e e z e d out by t h e government, the commercial fishing industry a n d t h e canneries. (Chilliwack Progress, N o v e m b e r 9, 1 9 8 8 ) St6:l6 elders a n d others with w h o m I s p o k e talked of their parents trading with t h e m e m b e r s of t h e local communities for g o o d s they could not produce, a practice that w a s illegal after 1888. A S u m a s B a n d elder with w h o m I spoke, t a l k e d of his parents  181  trading or selling fish with the local farmers to obtain eggs, butter a n d milk; the very things w e n o w regularly pick up e a c h time w e pass a grocery store. J u n e Quipp, from C h e a m notes, "As far as I c a n r e m e m b e r my d a d w a s in the b u s i n e s s to buy a n d sell fish w h i c h he p a s s e d on"(Aboriginal Fisheries Journal, O c t o b e r 2 0 0 0 : 3 ) .  In her  discussion of the Sto: 16 fishery within the context of public f o r m s of resistance, Bierwert notes that: O n both sides of the border Salish people f i s h e d on their rivers, outside of permitted o p e n i n g s , often literally in the dark, eluding confrontation a n d public protests alike. (1999:242) Bierwert g o e s o n to p o s e such questions as, " W e r e these actions merely the overt o p p o r t u n i s m of people on the e c o n o m i c margins already, or w e r e they assertions of a g e n c y by people acting witin their rights?" (1999:242). C o n t i n u i n g her discussion, Bierwert asserts that: ...children h a d w a t c h e d the adults having to fish by cover of darkness....Those children g r e w to k n o w fishing as a surreptitious, almost e m b a r r a s s i n g activity f r o m a diminishing culture, better forgotten in the pursuit of more conventional occupations in the larger non-Indian society. (1999:242) T h e q u e s t i o n I pose: is Bierwert's outlaw fishing a n d the c o n t i n u e d trade, barter or sell of s a l m o n an act of resistance or simply life, lived or both? M o r e importantly, is not the participation in that fishery an assertion of a g e n c y on the part of a p e o p l e s s e e k i n g to control s o m e m e a s u r e of their o w n destiny? In her discussion of power relations, Bierwert provides her observations of the St6:l6 fishery within the context of struggle for power, f r o m both within a n d the outside. She notes that the practices a n d conflicts that define outlaw fishing reveal the p r e s s u r e s exercised both from Indian fishers a n d u p o n t h e m . I posit that the s a m e can  182  be said regarding the legal sale fishery.  Participation in the sale a g r e e m e n t s is  t h o u g h t by s o m e - e v e n s o m e participating in t h e m on the o n e h a n d while disputing their validity on the other - to be an infringement on the Aboriginal right to fish. A s e x p l a i n e d to me by Ken Malloway a n d others, the a g r e e m e n t s d o not define or s u s p e n d the right, rather they simply set terms a n d conditions u n d e r w h i c h a particular fishery c a n be c o n d u c t e d . Fishing methods are specified - set gill nets. Fishing times are set. Most importantly, the size of the total catch is limited to a negotiated allotment. It is important to note that these conditions also exist in the n o n - a g r e e m e n t years.  Fishers  supporting the a g r e e m e n t s openly p u s h for the implementation of the a g r e e m e n t s , while simultaneously s p e a k i n g out against the restrictive conditions c o n t a i n e d in the a g r e e m e n t s . A c c o r d i n g to the fishers supporting the a g r e e m e n t s , the Aboriginal right to fish exists w h e t h e r or not sales a g r e e m e n t s are in place. For t h e s e Sto: 16 fishers participation in such fisheries is no less traditional. V i e w i n g participation in sales a g r e e m e n t s as less t h a n traditional, freezes tradition in time a n d s p a c e rendering it useless within a p a r a d i g m of resistance a n d agency. W h i l e c o m m e n t i n g o n h o w restrictive the negotiated a g r e e m e n t s h a v e c o m e to be, both Lester N e d a n d Ken Malloway consider t h e m as important steps in affirming the Aboriginal right to fish. Highliners in the Canyon A s noted previously, nearly two thirds of the Sto: 16 fishery is c o n d u c t e d in the roughly 2 0 miles of river located between the present d a y t o w n of H o p e a n d Sawmill C r e e k located five miles a b o v e the present d a y town of Yale, t h e s e b o u n d a r i e s constituting the c a n y o n fishery. In my conversations while in the field, three families w e r e repeatedly m e n t i o n e d as c a n y o n highliners: C o m m o d o r e , Jimmie a n d Malloway.  183  A c c o r d i n g to Ken Malloway the n u m b e r is four: C o m m o d o r e , Jimmie, M a l l o w a y a n d Malloway. A s explained to m e by Ken Mallowy, a n u m b e r of years a g o he set out o n his o w n ; operating his o w n boat. W h i l e this may a p p e a r as a break in family ties, it is not. Kinship ties f o r m the b a s e of social organization w h e r e b y corporate activity a n d family are linked a n d essential to the business of fishing. T h i s fact is reflected in w a y that the c a n y o n fishery is c o n