Russel Lawrence Barsh has published “Coast Salish Property Law: An Alternative Paradigm for Environmental Relationships” in the Hastings West-Northwest Journal of Environmental Law and Policy.
Here is the introduction to this important paper:
In different venues, Pacific Northwest anthropologist and linguist Wayne Suttles and Salish economist Ronald Trosper have argued that the indigenous peoples of Puget Sound and the Gulf of Georgia–the Coast Salish peoples of the ‘Salish Sea‘–achieved a high degree of economic stability and environmental sustainability through a distinctive regional form of social organization, law, and beliefs. This essay focuses on the nature of the Coast Salish legal paradigm and its implications for managing the living resources of the Salish Sea today. An appropriate starting-point is clarification of the nature of the prevailing paradigm of environmental law.
The Western legal paradigm is embedded with perverse incentives to consume resources faster than they can regenerate. Some of these subsidies are relatively easy to identify, such as the classification of most fisheries as commons. Others are hidden in the deepest conceptual structures of Western law, including the concept of property. Legal systems define what can be traded in markets, and thereby determine what people value, acquire, protect and conserve. In the language of economics, things that cannot be traded, whether for legal or innate physical reasons, are externalities (i.e., external to markets). A relatively open market system structured by Western law only optimizes the production and consumption of things that can be secured and defended as property, and traded freely in markets. An open market assigns zero price to externalities and they are consumed without price limitation. The classic example of an externality has been the impact on the quality of the environment.
Until recently, externalities have been the target of non-market protection: rules and regulations prohibiting various kinds of environmental degradation. Restrictions of this kind have grown increasingly controversial and unpopular, not in the least because of the perception that regulatory agencies tend to be expensive, inefficient, and ineffective. Regulatory mechanisms affect the price of property by restricting its use. In certain instances this may create a secondary market for the regulated environmental attributes. For example, the owners of a Superfund site can only realistically sell their property to an entity that is in the business of decontamination, for which federal law also provides direct subsidies. As a general principle, however, regulatory mechanisms do not harness markets.
The search for an alternative paradigm of environmental law has largely focused on two kinds of ‘market corrections‘: (1) market mechanisms that internalize externalities so that they become supply-constrained, such as transferable fishing area quotas (TAQs), transferable pollution rights, or green certification or labeling; and (2) simulating supply-side constraints through taxes on the consumption of resources. Both of these approaches invite criticism under Kenneth Arrow’s theorem that market corrections always cost more than the market failures they address, because they involve additional administrative and enforcement costs (‘transaction costs’).They also run the risk of violating multilateral open market treaties administered by the World Trade Organization and regional bodies such as NAFTA, if they create any preferential effects for domestic producers.
Market correction mechanisms draw upon a particular ethos of human rationality that is historically Western but has long been advanced as universal psychological truth. The ethos of materialism asserts that humans are motivated, above all, to amass material wealth. To achieve this, they must control the means of producing material, which have changed over the centuries from land (agrarianism); to financial capital and mechanical technology (industrialization); to financial options and control of information (the post-industrial ‘weightless‘ economy). Being inherently selfish, humans will not part freely with their accumulated material wealth (means of production as well as products). The state must therefore counteract selfishness through the exercise of centralized, coercive power, as Hobbes argued so influentially in Leviathan. States may nonetheless differ in matters of policy, giving greater or lesser freedom to individuals’ pursuit of material wealth.
For centuries, great philosophical divisions within the West have played out within this shared paradigm. Early liberals such as Locke and Rousseau conceded the necessity of coercive power while insisting that power must be legitimately constituted by collective consent, or contract, while conservative monarchists dismissed the original source of a prince’s power as irrelevant. Mercantilists and early capitalists argued that the state was intruding too much in private economic decisions, thereby stifling trade and innovation. On the other hand, communists reacted to the excesses of early nineteenth century industrialization by arguing that the only way to manage human selfishness is complete state ownership of the means of production. Today, North American Republicans, Democrats, and (in Canada) Liberals and Conservatives continue to argue about the use of state power, but they share the assumption that human beings are selfish materialists who generally must be forced to do any good for others–even for their own children.
It may be argued that Western materialist psychology reproduces itself through the globalization of Western military and economic power. When one party holds most of the cards, everyone learns to play by that party’s rules, lest they be excluded from the game. People do not fail because they are inherently defective (the argument of ‘social Darwinism‘) but rather because they try to play a different game. The strong make the rules, and for the rest, it is a test of survival of the best imitators.
The Western materialist paradigm is contested (albeit weakly) within the West by the more extreme Judeo-Christian religious tendencies, and it is challenged globally by non-Western religions and by the worldviews of tribal, segmentary, or ‘stateless‘ societies that either lack centralized power or eschew its exercise. At the level of the international community represented by the United Nations, it is easy to find expressions of spirituality and environmentalism; one such example may be found in the river of official documents emanating from the 1992 United Nations Conference on Environment and Development and its institutional offspring. Yet Member States continue to employ the same materialistic concepts and tools to protect the environment–if they protect it at all–regardless of their expressed cultural and religious differences. A critical observer may well ask whether there is any genuine, alternative approach to development that goes beyond mere words.
This essay is not an original ethnography of a traditional legal system, but it is instead an effort to synthesize the essential principles and reasoning of a non-Western system of property law for comparison with the underlying spirit of our Western legal inheritance. It draws chiefly on the work of three scholars who conducted fieldwork among the major Coast Salish peoples living in the Salish Sea in the early to mid-twentieth century: Ernst Haeberlin, who worked with Lushootseed-speaking peoples of the South and Central Sound in the 1910s; Sally Snyder, who worked in the Central and North Sound with Lushootseed and Straits-speaking peoples in the 1950s; and Wayne Suttles, who worked in the North Sound, Vancouver Island and Georgia Strait with both Straits and Halkomelem-speaking peoples from the 1940s to his death in 2005. It also draws upon previous critical studies of Western law and comparisons of Native American and Western legal paradigms.
Turtle Talk 
A related line of thinking which deals with some of the issues of this introduction in a creative way is available in my initial essays, Aikido Activism, and Integrated Aikido Entrepreneurship.
There is evidence of increasing game play which involves this theme of winning the game while changing the fundamental nature of gameplay in culture. Such cultural aikido can be seen as durable game play and an evolutionally stable strategy, and also as harmonizable with the teachings of most or perhaps all of the great historical thinkers and social guides.