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Koqqwaja'ltimk : Mi'kmaq legal consciousness McMillan, Leslie Jane 2002

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Koqqwaia'ltimk; Mi'kmaq Legal Consciousness By r  Leslie Jane McMillan BA, St. Francis Xavier University, 1995 MA., Dalhousie University, 1997 A Thesis Submitted in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy in THE FACULTY  OF G R A D U A T E  STUDIES  Department of Anthropology The University of British Columbia December 2002 We accept this thesis as conforming to the required standard  UBC Rare Books and Special Collections - Thesis Authorisation Form  Page 1 of 1  In p r e s e n t i n g t h i s t h e s i s i n p a r t i a l f u l f i l m e n t o f t h e requirements f o r an a d v a n c e d d e g r e e a t t h e U n i v e r s i t y o f B r i t i s h C o l u m b i a , I a g r e e t h a t t h e L i b r a r y s h a l l make i t f r e e l y a v a i l a b l e f o r r e f e r e n c e and s t u d y . I f u r t h e r a g r e e t h a t p e r m i s s i o n f o r e x t e n s i v e c o p y i n g o f t h i s t h e s i s f o r s c h o l a r l y p u r p o s e s may be g r a n t e d b y t h e h e a d o f my department o r by h i s o r h e r r e p r e s e n t a t i v e s . I t i s understood t h a t copying or p u b l i c a t i o n of t h i s t h e s i s f o r f i n a n c i a l gain s h a l l not be a l l o w e d w i t h o u t my w r i t t e n p e r m i s s i o n .  The U n i v e r s i t y o f B r i t i s h V a n c o u v e r , Canada  Columbia  http://www.library.ubc.ca/spcoll/thesauth.html  3/24/2003  11  Abstract This thesis examines the principles and concepts of Mi'kmaq folk law, and Mi'kmaq legal consciousness, chronicling the concepts, symbols, and methods, of Mi'kmaq justice over time, from early contact, through colonization, to the present. The main thrust of this research examines legal consciousness as a site of struggle and as articulations of Mi'kmaq identity, through an investigation of the local lived law of the Mi'kmaq. Social constructions of legal consciousness, referring to how people come to think about, understand, create, and act upon, formal and informal laws that define social relations in everyday life, were examined using field based ethnographic methodologies. Research indicates the Mi'kmaq have competing discourses ranging from, the utility of pre-contact social order traditions, to sophisticated power struggles over identity and treaty rights, to the validity of distinct and separate justice systems in fulfilling the goals of self governance. These discourses are framed in concepts such as authenticity, continuity, tradition, cultural appropriateness, distinctiveness, community empowerment, harmony, forgiveness, and healing. Additionally, the concepts and the discourses framing and articulated as Mi'kmaq legal consciousness, provide insight to the impact of colonization on Mi'kmaq culture. The stories told by the Mi'kmaq participants in this research illuminate all manners of conformity, contest, and resistance, as they combat the alienation and marginalization of their culture within and between their communities and the larger Canadian society. The constitutions of legal consciousness are historically situated, fluid and dynamic processes, often contested, within and between societies, as individuals and collectivities give meanings to their juridical experiences and beliefs, and thus provide information for analysis of the sources of solidarity, crisis, conflict and contradiction within the production of Mi'kmaq culture.  Table of Contents ABSTRACT T A B L E OF CONTENTSPREFACE PREFACE ACKNOWLEDGEMENTS  II HI V XIV  CHAPTER ONE: INTRODUCTION  1  FIGURE ONE: MAP OF M P K M A Q COMMUNITIES IN NOVA SCOTIA  9  CHAPTER TWO: T H E T H E O R E T I C A L FRAMES  10  The Anthropology of Law and the Current Conundrum  16  Conclusion  21  CHAPTER T H R E E : L'NUWEY TPLUTAQAN (MI'KMAQ LAW)  25  Introduction Mi'kma'ki: Subsistence Technologies and Social Organization Sociopolitical Organization: Local Chiefs, Elders and Families Mi'kmaq Grand Council: A National Political Organization Warfare and Revenge Koqqwaja 'Itimk: Early Legal Consciousness Teachings, Oratory and Oral Traditions Mi 'kmaq Cosmology and Cosmogony - How to Live Right Feasting Protocols and Rituals - Instilling Mi'kmaq Values and Tplutaqan Respect and Reciprocity Conflict in Early Mi 'kmaq Culture Seeking Revenge - Fights, Feuds and Peace Declarations Spiritual Practitioners - The Early Justice Entrepreneurs Conclusion CHAPTER FOUR: CONFRONTING M I ' K M A Q L E G A L CONSCIOUSNESS  25 29 33 42 47 52 53 55 62 66 68 71 75 75 83  Theorizing Colonial Processes Contact and Colonization of Mi'kmaq Law Ways British/Mi'kmaq Relations: Treaty Making and Shifting Legal Consciousness CHAPTER FIVE: COLONIZING M I ' K M A Q L E G A L CONSCIOUSNESS LEGISLATED ALIENATION, CENTRALIZATION AND RESIDENTIAL SCHOOLS Residential Schools Centralization Policing Mi'kmaq Communities Conclusion  85 87 100 113 H9 128 135 137  CHAPTER SIX: DONALD M A R S H A L L AND CONTEMPORARY L E G A L CONSCIOUSNESS144 Introduction The Context: Aboriginal and Non-Aboriginal Relations in Cape Breton Donald Marshall's Case The Trial The Release: More Apparent than Real The Royal Commission on the Donald Marshall, Jr. Prosecution  144 148 152 153 156 160  iv  The Recommendations: Mi 'kmaq Legal Consciousness Gains a New Discourse  / 69  CHAPTER SEVEN: ABORIGINAL JUSTICE - T H E NATIONAL C O N T E X T  174  The Rise of Contemporary Political Organizations in Mi 'kma 'ki  177  Aboriginal Justice at the National Level  /82  CHAPTER EIGHT: AFTER THE M A R S H A L L INQUIRY  191  A New Era in Mi 'kmaq Justice Alternative Justice Programs in Mi 'kma 'ki. Shubenacadie Band Adult Diversion Band By-laws CLIF - The Community Legal Issues Facilitators Demonstration Project The Aboriginal Court Worker Program - Conservative Programming Fighting for Implementation CHAPTER NINE: T H E M I ' K M A Q JUSTICE INSTITUTE  191 199 200 212 216 228 231 232  A 'Breach' Birth A Brief History of the Mi'kmaq Justice Institute Translators and Court Workers Certificate Training and First Nations Governance Too Many Puppet Handlers MJI - Gone But Not Forgotten Unama'ki Tribal Police Service and Eskasoni Court Eskasoni Court CHAPTER TEN: CONTEMPORARY URBAN LANDSCAPES Membertou First Nation Snapshots: Community Perceptions of Trouble Sociocultural and Spiritual Milieu - Informal Juridical Practices The Catholic Church and Mi'kmaq Spirituality - Competing Traditions Governance and Juridical Discourses The Problem of Justice in Membertou CHAPTER E L E V E N : CONTEMPORARY RURAL LANDSCAPES Waycobah First Nation Location and Description Relations with Other Communities Governance and Juridical Discourses The Problem of Justice in Waycobah The Problem with Policing An Example of Family Feuding Conclusions CHAPTER T W E L V E : K O Q Q W A J A ' L T I M K - MI'KMAQ L E G A L CONSCIOUSNESS Mi 'kmaq Justice Concepts Oral Traditions and Family Law Ways Healing and Forgiveness Elders and Justice Legal Consciousness in Action - The Mi'kmaq Young Offender Project [MYOP] Mi 'kmaq Justice Circles Conclusions  233 245 249 253 256 260 263 269 278 279 285 289 292 298 308 321 321 321 326 328 337 343 347 351 354 354 354 359 370 378 388 397  CHAPTER THIRTEEN: CONCLUSIONS  402  REFERENCES  424  V  Preface On October 1 2002, the Mi'kmaq Nation and the Province of Nova Scotia joined st  to commemorate the 250 anniversary of the signing of the 1752 Treaty of Peace and th  Friendship. In his annual address at Province House, Alex Denny, Grand Captain of the Mi'kmaq Mawio'mi stated: Ladies and Gentlemen, respected Elders and Guests, today marks another landmark in the relations between the Mi'kmaq Nation and the Crown, representing the nation of Canada. Today we celebrate 250 years. Yes, 250 years ago the 1752 treaty of Peace and Friendship was signed .... It gives me great pleasure at this time to personally thank Premier Hamm and his government for finally attempting to address two long and outstanding issues. One being the steps taken most recently to return gasoline taxes collected from Mi'kmaq consumers. Second, along with the Federal government of Canada, the Province of Nova Scotia has initiated a process with the Mi'kmaq to tackle issues relating to lands and marine systems .... It not only pleases me that we are heading down this path, but it reminds me of the many who have brought us to this point in our history. It is important to remember, at this time, the people who have led us here. The Mi'kmaq know who they are and it is the Mi'kmaq that must not forget. A person that comes to mind is Donald Marshall Junior. Junior is without a doubt a figure that has marked our history with victories. Victory from a justice system that was blinded by racism. Victory in the form of reaffirmation of our fundamental rights as laid out by our forefathers in the treaty of 1760-61. As long as I have known Junior, not once have I seen a young man so dedicated to ensuring that we the Mi'kmaq do not forget the hundreds of years of pain and suffering encountered, yet stay true the words penned between the Mi'kmaq Nation and the Crown. Historical processes of cultural production shape legal consciousness. Symbols and events, embedded in legal consciousness, are interwoven in the social structures and contextualize the networks of social relations in which the Mi'kmaq live and act. This thesis examines constructs and contests of Mi'kmaq legal consciousness from the early seventeenth century to the present. Legal consciousness represents the location of particular Mi'kmaq struggles and expressions of Mi'kmaq identity. On a late August evening in 1991, a full moon was lighting up the sky in Rivieredu-Loup, Quebec. M y mother and I stopped for the night at a country-side motel that had  vi  a big pond, copious yard ornaments, and several varieties o f animals meandering about. We were driving from Southern Ontario to Halifax, N o v a Scotia, where I would begin my university studies in marine biology. The air felt charged that night and the moon was so huge and insistent i n the sky, I could not avoid its attractive forces. It was unsettling. I joined my M o m in the room, where she was watching the only English language channel available, on a remote-less television set. I asked her what was on and she replied, ' A depressing movie. A horrible story about a Native boy sent to prison for a murder he did not commit.' W e suffered through the darkness o f the film called "Justice Denied". It turned out to be a true story about the wrongful conviction o f Donald Marshall Jr. a member o f the M i ' k m a q First Nation from Cape Breton Island, N o v a Scotia. The Canadian Criminal Justice System incarcerated Marshall eleven years for a murder he did not commit. H i s conviction was due in large part to the fact that he is M i ' k m a q . H i s identity disqualified him from due process, a fair and just trial. The movie showed how he survived prison riots, daily violence, inmate deaths, and how he endured years of proclaiming his innocence to no avail. He was trapped in a system that would not release h i m unless he said he was guilty and showed remorse. H o w do you do that when you are innocent? The film made clear his alienation from the legal system and his inability to correct the outrageous miscarriages of justice he lived with daily. It was rough to watch. C B C was broadcasting the film to commemorate M i ' k m a q Grand Chief Donald Marshall Sr., the wrongfully convicted man's father. The Grand Chief, the traditional spiritual and political leader of the M i ' k m a q nation, had died a few days earlier. The Grand Chief and his wife Caroline had cameo roles in the film, reenacting the event o f  Vll  their son's release. Donald Marshall Jr., the Grand Chiefs namesake and eldest son, was sentenced to life in prison when he was just seventeen years old. It was a conviction that denied Donald Marshall Jr. the opportunity to complete the apprenticeship required for his potential ascension to the hereditary position as Grand Chief, when the time came, at the death o f his father. After the presentation o f "Justice Denied", the news footage showed the Grand Chiefs stately funeral attended by people from across the country. During the procession members the Grand Council wore their regalia, special status sashes and amulets, signifying the importance o f the occasion, as they walked behind the casket, alongside the Marshall family, carrying their father, grandfather, godfather and husband. There were many First Nations' Chiefs wearing headdresses and formal ceremonial attire, venerating their leader. Warriors marched beating drums and singing honour songs. The Knights o f Columbus were also there in their feathered caps and cloaks, representing the fact that the Grand C h i e f had crossed social boundaries between town and First Nation, making many friends from different culture groups. Hundreds o f community members walked through the streets o f Membertou First Nation honoring the late M i ' k m a q Grand Chief and his family. I was fascinated by the procession, the sounds, colours and emotions, captured on the screen, and made more palpable by the movie just shown. I felt such sorrow, and then anger, that something so horrible could happen i n Canada. I felt outraged at the failings of the justice system, that it could put innocent people in prison, that aboriginal people be so poorly treated. I realized justice is not blind or equal for all. I saw the terrible consequences o f racism. It was overwhelming. I viewed all o f it from a distance that day.  Vlll  I was a stranger to N o v a Scotia. About three weeks after that big bright moon shone in Quebec, and the viewing o f the "Justice Denied", I found myself i n the old 'Misty M o o n , ' a large venue for live acts in downtown Halifax. I went to see Jeff Healey 1  sing about 'Angel Eyes' and it is there where I met Donald Marshall Jr. From that moment my life changed. He had been out o f prison almost ten years, and it was one and a half years after the release the infamous Marshall Inquiry Reports, a list o f eighty-two recommendations derived from the Royal Commission on the Donald Marshall Jr. Prosecution, designed to prevent such miscarriages of justice from reoccurring. The Marshall Inquiry became the driving force and justification for judicial reform in N o v a Scotia, a powerful political tool for the M i ' k m a q , and has important implications in the formation o f M i ' k m a q legal consciousness and is a central theme o f this thesis. After a memorable year in Halifax, I moved with Donald to Cape Breton Island, to his home in the countryside along the Bras D ' O r Lake, nestled between two First Nation communities. O n my first visit to Waycobah First Nation, I drank homebrew and ate moose meat pie with some o f the gentlest giants I had ever met. I transferred universities and switched disciplines from marine biology to anthropology, just as Donald and I began an eventful career in commercial eel fishing. In my first two major anthropological projects with the M i ' k m a q , I avoided writing directly about Donald's life in prison or the impact o f his wrongful conviction. M y Honors thesis addressed the alienation and marginalization of the M i ' k m a q in the commercial eel fishery i n N o v a Scotia. The impetus for that paper came after Donald and I were charged with illegal selling o f eels i n 1993, a case which turned out later to be as significant a Supreme Court Decision for the M i ' k m a q Nation as the Royal Commission,  1  The Misty Moon no longer exists but Jeff Healey still tours.  ix  but for different reasons. When I wrote that paper we had just finished the first round o f court, my charges were dropped, and Donald was carrying the treaty test case forward to appeal. The Marshall Decision o f 1999 was years away. The outcome and consequences of that case far surpassed any that we imagined the day the agents o f the Department o f Fisheries and Oceans served the summons. M y direct involvement in this case positively affected my status within the communities and opened further research avenues. I met many people while sitting for hours in court and in strategy meetings. Taken together, the Marshall Inquiry and the Marshall Decision are the two most significant juridical events to take place within the M i ' k m a q Nation during the last two decades; their places within M i ' k m a q legal consciousness are analyzed here. M y Master's thesis examined the changing roles o f the M i ' k m a q Grand Council from the early seventeenth century to the present. A s noted above, Donald's father was the Grand Chief, leader o f the Grand Council and head o f the M i ' k m a q Nation's traditional territories spanning the Atlantic Provinces. It seemed fitting to write up this important aspect o f M i ' k m a q sociopolitical culture. I had never met Donald's father, and Donald himself was not a part o f the Council, but accessing the people for the research was certainly made easier for the historical connections, as well as Donald's and his father's popularity in the communities. More people came to know me as Donald's friend doing her studies on something or other, and they were very generous with their thoughts and stories. I ran into some limited resistance about writing on what some people perceived as a sacred organization, once my purposes and methodologies were presented, people tended to feel more comfortable, and perhaps trusting, o f my work. I made mistakes in my pronunciations o f M i ' k m a q words and people began to correct me.  X  Regularly someone will point out my whiteness. Several people start off interviews by saying they don't want their children taught their traditions by a blonde haired, blue eyed, white woman, indicating a caution against appropriation. However, once they make clear that there are differences between us, and that I remain an outsider, they usually proceed to generously share with me their thoughts and concerns, their memories and interpretations, of what has happened in their communities, and what they would like to see happen in the future. A s a person studying anthropology and trying to do ethnography of the Mi'kmaq, I am in a very privileged position. Being Donald Marshall's partner opened numerous doors, as well as offered certain challenges. I am certain my relationship with Donald, the fact that I am of European ancestry, and female, influenced how people talked with me, what they chose to articulate or silence. Donald is well known across the country, particularly within the Mi'kmaq nation. The very public process of overturning his wrongful conviction, the Royal Commission, and the newsworthy shattering of the hegemony of the Canadian Criminal Justice system as infallible, as wel