James [sákéj] Youngblood Henderson, Míkmaw Tenure in Atlantic Canada

[Excerpted from: James [sákéj] Youngblood Henderson, Míkmaw Tenure in Atlantic Canada 18(2) Dalhousie Law Journal 196. Published under a Creative Commons Attribution 4.0 International License (CC BY 4.0)]

Míkmaq Tenure in Prerogative Treaties #

Míkmaq attitudes toward sharing of the sacred space are evident in almost every treaty with the British Crown. The prerogative Treaties reserve their land tenure and beneficial interest under the protection of the Crown and separate from the provinces. These Treaties were forged from the ancient ecological covenants with the Keepers of the Mntu and from their Nikmanen law. The context for the prerogative Treaties was the ancient Nikmanen [Míkmaw transnational legal] Order.

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The Nikmanen Order illustrates the development of a voluntary transnational law that was not based on the family structure. Instead the order was based on consensual agreements among the Indigenous federations and European monarchies. The Europeans were careful to record the Míkmaq’s Nikmanen or transnational confederations. Confronted with a well-populated land, an organized government and an elegant economic order, the Europeans were forced to develop new concepts of law and rights to deal with the allied people and their vast system of “friends”. From a Nikmanen perspective, relations with the Europeans or guests were part of a continuous process of trying to make peace or staying neutral in European conflicts.

Sometimes the allies cooperated in raids (called “wars” by Europeans) against common enemies, particularly against the Mohawk and the “Armochiquois”. The purposes of these raids were not for territorial acquisition or wealth, but rather they were seen as means to end a conflict or enforce customary international trading laws. The Nikmanen order was not based on a negotiated peace, but rather maintaining and strengthening the peace. They saw peace as a state of mind calling for self-discipline and forgiveness. They understood that a crisis-based council could not implement a policy of disengagement. Presents and satisfactions for the military raids and the loss suffered encouraged good feelings, amity, and international harmony.

A united Confederacy emerged from these conflicts, and created the Nikmanen Order. At the time of the arrival of the Europeans, the Wabanaki Confederacy comprised the Penobscot, Passamaquoddy, Malecite, and the Míkmaq. It was united with the Ottawa Confederacy, comprising the Mohawk of Caughnawaga and Oka, the Têtes de Boule, and the Ottawa. The extended confederacy of more than fourteen nations had several descriptions. This continental Confederacy, usually called Great Council Fire by the Wabanaki, was renewed in 1701 and 1749, and extended the alliance to the Lakes Confederacy of the Obijwa and the Cree (Nehiywaw) Confederacy, who were related to the Blackfoot and Lakota Confederacies. This interconnectedness was continued in the treaty process with the Crown.

The extension of indigenous transnational law to include the British Sovereign is reflected in the Treaties. The early Treaties can be viewed as an extended Aboriginal system of tensions or bridges linking different worldviews to a consensual order. The Georgian treaties typically were made according to Aboriginal, rather than European, protocols. The Aboriginal Nations conceived of Treaties as living agreements rather than mere documents. Often the cordiality of the annual meeting and discussion was seen as more important than the substance of the terms. Propositions were made orally at conferences and agreed to one by one with the exchange of symbolic gifts or wampum. Beyond the particular framework of obligations or rights agreed upon, the agreements created a permanent, living relationship. Typically this relationship was expressed in terms of an extended kinship-the King as “father” and the colonist as “brothers”. This is consistent with an indigenous worldview.

To preserve the kinship, as within a natural family, the Aboriginal nations and the representatives of the King were obliged to meet from time to time to renew the friendship, to reconcile misunderstandings, and to share with each other understandings, experiences and wealth. Thus most of the treaties were in reality renewal ceremonies of subsisting relationships. In documentary form these ceremonies mostly consisted of a transcript of the proceedings and the substance of the agreement summarizing the nature of the international kinship. This was often characterized by the metaphor of the chain. By European standards the agreements were often unnervingly succinct, even vague, but this was not the result of failure to agree, nor of naiveté. It was the result of abiding by tribal protocol and worldviews, the acceptance by the British Sovereign of the aboriginal flexible, kin like nature of the confederation. These treaties were never intended to locate the Aboriginal nations under the Crown’s direct authority or under the immigrant governments, since they had no concept of rules from above and did not tolerate such a conception of rule. The treaties were a partnership. They merely created a consensual order and a protective relationship reflecting both an Aboriginal view of order and procedure, and a Eurocentric view of order.

The prerogative Treaties enabled the two worldviews and different societies to make a new normative world using the irony of jurisdictions, obligations and rights. To live in the new legal world required each culture to know not only the meaning of the alliance and its terms, but also the connections or transformations that resulted when one normative system passed through another. The prerogative Treaties constructed, through mutual consent, a new normative system out of the various constructions of reality and visions of what the world might be.

For example, the Wabanaki and Míkmaq applied the customary concept of harmony and forgiveness to the English. Specifically, article 2 of the Mikmaw Compact, 1752, stated that “all Transactions during the Late War on both sides be buried in Oblivion with the Hatchet.” This fragile quest for an explicit order between the diverse federations through consensual Treaties provided the foundation upon which developed the first British Empire and their colonies, and eventually the United Kingdom.

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The relationship between the Míkmaq and the land embodies the essence of the intimate sacred order. As humans, they have and retain an obligation to protect the order and a right to share its uses, but only the future unborn children in the invisible sacred realm of the next seven generations had any ultimate ownership of the land. In the custom of the Míkmaq, the Santé Mawíomi was and is the trustee of the sacred order and territory for the future generations. Part of its duty is to regulate the natural resources of Míkmáki among the allied people and through the Nikmanen trading customs increase the bio-diversity. This is more of a management right to ensure discipline in consumption of the resources, rather than the concept of ownership.

Inherent in this sacred order is the conviction that the resources had to be renewed as well as shared. Rather than managed, which implied human domination, the Míkmaq developed rituals for sharing or harmonizing the human and spiritual realms. These renewal rituals and ceremonies brought the people and the land into balance thereby achieving basic subsistence and material well-being. These rituals and ceremonies created a harmony which emphasized stability and the minimization of risk for the harvesting of the resources rather than growth and the accumulation of wealth. The quest for harmony also created the need for diversification by trade and modification of habitats, thereby developing surplus capacities and sharing.