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Colonial Traditions, Co-optations,and Mikmaq Legal Consciousness

L. Jane McMillan

In 1996 a provincial court was established at Eskasoni Mikmaq Com-munity in Nova Scotia, Canada, in response to overwhelming evidenceconfirming the failures of the Canadian legal system to provide justice forIndigenous peoples, and as a specific recommendation of the Royal Commis-sion on the Donald Marshall, Jr., Prosecution. Marshall, a Mikmaq wrong-

fully convicted of murder, served eleven years of a life sentence before provinghis innocence. The importation of provincial legal culture into an Indigenouscommunity creates tensions and contradictions surrounding the legitimacy,authenticity, and efficacy of Indigenous laws. The ontological conflicts that

arise from the imposition of a justice system integrally linked with colonization,criminalization, and assimilation cannot be resolved through indigenization ofcourt staff and administrative conveniences. The Mikmaq continue to asserttheir laws and articulate their legal consciousness against the co-optation ofdominant system, with mixed results.

INTRODUCTIONlsi_1228 171..200

The Mikmaq Nation has occupied Atlantic Canada for thousands of

years. For the last four hundred, they have been subject to European colo-nialism. However imperiled their sense of nationhood and pride, componentsof their tradition and culture survive. Much, however, has been marginalizedor eroded, including the customary laws that governed dispute resolution

L. Jane McMillan is Canada Research Chair of Indigenous Peoples and SustainableCommunities and Assistant Professor of Anthropology at St. Francis Xavier University. Theauthor is indebted to Donald Marshall Jr., the staff of the Mikmaq Legal Support Network andthe Eskasoni Provincial Court, the residents of Eskasoni, and the members of the Mikmaq

Nation who participated so generously in this research. The Canada Research Chairs Program

and Social Science and Humanities Research Council of Canada financially supported thisstudy. Many thanks to Justice Melvyn Green, the anonymous reviewers, and the Law andIndigeneity Collaborative Research Network of the Law and Society Association for their very

Law & Social Inquiry

Volume 36, Issue 1, 171200, Winter 2011

Law &Social Inquiry

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among the Mikmaq people. The model of justice that prevailsthat of theCanadian nation-stateis patently an instrument of alien domination, anirritating symbol of the discrimination and oppression that characterize thecolonial experience, and a constant reminder of the injustices routinely

suffered by the Mikmaq.Native resistance to their unjust treatment under the law was galva-

nized by the wrongful murder conviction of Donald Marshall Jr., a seventeen-year-old Mikmaq, in 1971.1 After eleven years of imprisonment, hisexoneration was followed by a nationally publicized Commission of Inquiryinto this terrible miscarriage of justice.2 Unsurprisingly, racism was found tobe the major contributing factor. Remedies, by way of commission recom-mendations, included the indigenization of criminal justice in Mikmaq com-munities, support for restorative justice initiatives, the creation of a native

criminal court, and comprehensive stakeholder research and policy develop-ment dedicated to the cultural reappropriation of the justice enterprise.

This article traces the Mikmaq communitys response to these recom-mendations, the posturing of the government charged with their implemen-tation, and the dynamic by which each progressive initiative was ultimatelycompromised or defeated. What remains, after twenty years of shatteredexpectations, is a satellite provincial court in Eskasoni, Nova Scotias largestMikmaq reserve, which hears matters biweekly. The administration of thecourt is undoubtedly well intentioned, and its physical location and relativeinformality are clearly more accommodating to its native clientele. Nonethe-less, there is a pervasive sense that nothing of substance in terms of Mikmaqlegal sovereignty has been accomplished, that the legacy of the MarshallInquiry is little more than a fresh coat of paint on the perennially unamusedface of Queen Victoria.

Following Sally Engle Merry (1990, 2000), Patricia Ewick and Silbey(1998), Laura Beth Nielsen (2000), and Susan Silbey (2005), legal conscious-ness is a conceptual and analytical tool used here to portray how people cometo think, talk about, and understand the formal and informal laws that definesocial relations in everyday life. In the context of Aboriginal legal research, it

is useful to consider issues of legal hegemony and the challenges made byAboriginal peoples to counter it.3 These issues are investigated on the premisethat people rely on culturally available narratives of justice to interpret their

1. After an extraordinary life committed to fighting for Mikmaq rights, Donald MarshallJr. died August 6, 2009, from complications following a double lung transplant in 2003, at theage of fifty-five. I had the tremendous privilege of sharing many years with Donald Marshall; mywork is dedicated to honoring his tremendous legacy.

2. The Commission found that the criminal justice system failed him at every turn due inpart to the fact that he is Native (Royal Commission on the Donald Marshall, Jr., Prosecution1989, 1).

3. John Borrows (2002) explores challenges to legal hegemony in his work in thef I di l

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lives and their relationships.4 Legal consciousness reflects the ideas and con-cerns, the contests and contradictions, produced within and betweenMikmaq communities and mainstream society. As a conceptual tool, it pro-vides a framework to interpret various narratives of crisis, conflict, solidarity,

and resistance that are part of the necessary struggles of cultural reproductioninherent in subjugated peoples who resist domination.5 An examination ofMikmaq local knowledge, based on primary research conducted over eigh-teen years of consultation with hundreds of participants, helps us to under-stand how local legal sensibilities are generated, maintained, and changed,and how principles of justice are thereby legitimated or delegitimatedthroughout the history of colonization.6 The accessibility, relative informal-ity, and familiar setting of the Eskasoni Provincial Court have alteredMikmaq legal consciousness in Eskasoni by reducing the remoteness and

alienation of the Canadian legal system, but these factors do not necessarilyreduce the perceptions of the court as a colonial imposition or providesufficient opportunities for community justice.

CONTEXT: THE MARSHALL INQUIRY

Aboriginal justice was a topic of fervent discussion in Nova Scotia in the1990s as the conviction and life sentence of Marshall for a murder he did not

commit culminated in the widely publicized report of the Royal Commissionon Donald Marshall, Jr., Prosecution. The report dissected the legal processesleading to Marshalls wrongful conviction and challenged all facets of theprovincial justice system. The case brought to light fundamental problems inpolicing, courts, and the judiciary in Nova Scotia, and raised importantquestions regarding the legitimacy, authenticity, and efficacy of the Canadiancriminal justice system, particularly its treatment of Aboriginal peoples.7

4. Lawrence Rosens (2006) excellentLaw as Cultureargues that law is integral to culture

and culture to law.5. Both Gavin Smith (1999) and Gerald Sider (1997) have been concerned with howsocial production is organized and how reproduction becomes transformation by examining theintersection of domination and legitimation. For example, If power, like electricity, flowsthrough resistance, then the contestability of its legitimacy can become crucial to both thereproduction and the transformation of the relationships that domination engenders (viii). Imerge the endeavors of Sider (1993) and Sider and Smith (1997) with that of Merry (1990) andEwick and Silbey (1998) and Kostiner, Nielsen, Fluery-Steiner (2006) in my application of legalconsciousness.

6. Clifford Geertz (1983) argued that legal thought is constructive of social realities ratherthan merely reflective of them.

7. The discriminatory treatment and overrepresentation of Aboriginal peoples in theCanadian and American justice systems is addressed by Hon. Alvin Hamilton and Hon. MurraySinclair (1991), Michael Jackson (1989, 1992), Royal Commission on Aboriginal Peoples(1993), Carol LaPrairie (1994), Patricia Monture (1995, 1999), Jeffry Ian Ross and Larry Gould(2006) d J W ld (1997) f

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The inquiry concluded that the criminal justice system failed Marshallat virtually every turn, from his arrest and wrongful conviction formurder in 1971, up to and even beyond his acquittal by the Court ofAppeal in 1983.8 The report, released in 1989, clearly identified Marshalls

Aboriginal identity as a significant contributing factor in the denial ofjustice:

The tragedy of the failure is compounded by evidence that this mis-carriage of justice couldand shouldhave been prevented, or atleast corrected quickly, if those involved in the system had carried outtheir duties in a professional and/or competent manner. That they didnot is due, in part at least, to the fact that Donald Marshall Jr. is aNative. (Royal Commission on the Donald Marshall, Jr., Prosecution1989, 1)

Marshall served over eleven years in prison; he escaped once, was recaptured,and endured innumerable periods of solitary confinement for protesting hisinnocence.9 Marshall was repeatedly deemed ineligible for parole because hewould not demonstrate remorse for a crime he did not commit.10 Furthermore,the adverse consequences for Marshall extended well beyond the legal system.He was the eldest son of the Grand Chief of the Sante Mawiomi, the tradi-tional governing body of the Mikmaq.11 Due to his lengthy incarceration,Marshall was unable to fulfill the primogeniture apprenticeship customarily

required to inherit his fathers chiefly position upon the elders demise. Afterthe death of Grand Chief Donald Marshall Sr. in 1991, the customary lead-ership of the Mikmaq Nation passed to Benjamin Sylliboy in a ceremony inJuly 1992, where Donald Jr. handed over the symbols of his fathers leadershipto the new Grand Chief.12

8. Marshall was only seventeen when sentenced to life imprisonment. His acquittal someeleven years later was shockingly mean-spirited and defensive, the appellate court casting blamefor the systems shortcomings on Marshall himself. Marshall spoke Mikmaq, could not affordeffective legal counsel, and was coerced to confess to a crime he did not commit. His caseepitomizes the tragic consequences of racism and systemic discrimination for Aboriginal peoplesencountering the Canadian justice system.

9. Personal communications and interviews with Donald Marshall (19912009; inpossession of author).

10. Richard Weisman (2004) explores expressions of remorse in cases of wrongfulconviction.

11. Janet Chute (1999), Harald Prins (1996), and Daniel Paul (2006) examine thesignificance of the cultural, spiritual, and geopolitical roles and structure of the Grand Council.Also see William C. Wicken (2002).

12. This event occurred at the annual St. Annes Mission on Chapel Island on Sunday,July 26, 1992. St. Anne is the patron saint of the Mikmaq, who have a historical relationship

i h h C h li Ch h d i b k h 1600 (H d 1997)



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The wrongful conviction and exoneration of Marshall is one of thepivotal events that shape Mikmaq legal consciousness.13 The significance ofhis case cannot be underestimated. It forms a negotiating space between pastinjustices of Mikmaq colonial experiences and their opportunities for future

success.14 It continues to frame a powerful rights discourse in Mikmaq society.Marshalls wrongful conviction symbolizes all that is corrupt regardingIndigenous peoples within the mainstream legal system. It lends concretesupport to abstract notions of racism and inequality and thereby justifiesrecognition of Mikmaq demands for legal self-determination.15 In her sub-mission to the Marshall Inquiry, Dr. Marie Battiste, a Mikmaq academic,argued the dilemma of racism in the criminal justice system is at once asociological reality with political and legal implications and a psychologicalone for the people within the situation. The justice system has made race

instead of legal rights the overriding principle of organization.16

Prior to Marshalls wrongful conviction, there were no restorative justiceprocesses, no Mikmaq lawyers or legal professionals, no Mikmaq policeofficers, and certainly no Aboriginal justice programs authorized or recognizedby the state in Mikmaq territory. Courts did not sit in Mikmaq communities,and policing was fraught with racism, oversurveillance, and the criminaliza-tion of Mikmaq livelihoods.17 While disputes were usually managed inter-nally by culturally appropriate means, encounters with the mainstream justice

13. L. Jane McMillan (2003) examines Mikmaq legal consciousness, the impact ofcolonization on Mikmaq laws, and contemporary responses to colonization using legal con-sciousness as an analytical tool to delineate Mikmaq perceptions of Canadian and Aboriginalapproaches to justice.

14. Being on the east coast of Canada, Mikmaq have had the longest period of contactwith newcomers into their territory. The first British Indian treaties applying to Canada werenegotiated with the Mikmaq in the 1700s, predating the Royal Proclamation of 1763; thesetreaties were long ignored by the British and then Canadian governments as Mikmaq wereremoved from their lands and alienated from their natural resources (Upton 1979; Harring1998). Additionally the Mikmaq endured centuries of assimilation policies; residential school(Milloy 1999); centralization; and the criminalization of their spiritual, social, political, and

sustenance practices under the Indian Act of 1867. Daniel Paul (2006) notes that there was aScalping Proclamation offering that a reward of ten Guineas be granted for every IndianMicmac taken or killed (115).

15. The literature detailing of the failures of the Canadian justice system to deal appro-priately with Aboriginal offenders is extensive, including two special volumes of the RoyalCommission on Aboriginal Peoples (1996a and 1996b) and numerous public inquiries such asAboriginal Justice Inquiry of Manitoba (Hon. AC Hamilton and Hon. CM Sinclair 1991) andThe Ipperwash Inquiry (Hon. S. Linden 2007).

16. Battiste was writing about the 1989 report by the Royal Commission on the DonaldMarshall, Jr., Prosecution. This was her commentary on the Mikmaq Union of Nova ScotiaIndians response submission to the Marshall Inquiry.

Battiste (2000) also writes of the traumatic impact of colonization on Indigenous cultures,encouraging scholars to map colonialism and diagnose the consequences of those experiences inorder to move toward the healing of colonized people in projects of decolonization.

17. See Donald Clairmont (1999), Margaret Beare and Tonita Murray (2007) and par-i l l G d Ch i i i l i h ll i



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system were largely met with mistrust and trepidation. The majority ofMikmaq persons interviewed for this project (accused, witnesses, andvictims) felt alienated from and tried to avoid the Canadian justice system.18

Fears of being mistreated, misunderstood, and being put in jail were com-

monplace, as was the sense that the mainstream system does not providemeaningful remedies to Mikmaq problems. That system does not take intoaccount Mikmaq ontology, which incorporated seeking justice through con-sensual decision making, tangible reparations, mutual forgiveness, and bal-ancing relations. The Canadian approach resulted in dispositions that moreoften than not had little meaning beyond expression of colonial oppressionand did little to repair harmed relations. Many people reported that sentencesdid not provide effective deterrence, particularly in assaults, disturbances, andLiquor Control Act violations.19 According to research participants, people

tend not to report crimes due to community pressure, slow or ineffectivepolice response, and a sense that the community will deal with its ownproblems.20 The restoration of peace and relationships was largely managedinternally, often through kinship networks and sometimes through bandcouncil interventions, thus diminishing the efficacy and legitimacy of thecourts authority.

RESISTING COLONIAL TRADITIONS

Since 1989, the Marshall Inquiry has provided a strategic platform for apolitics of embarrassment.21 Mikmaq political organizations utilized it, withvarying success, as a powerful negotiating tool to bring about social change intheir communities. The eighty-two recommendations that emerged from thelengthy inquiry gave the Mikmaq tangible ways to frame their discourses ofresistance to state legal domination and to arrange their demands for the rightto control their own justice processes.22 Monitoring the implementation of

18. From 1991 to the present, I have interviewed and surveyed several hundred Mikmaqpeople in regard to their perceptions of the Canadian justice system and Indigenous justicepractices.

19. The high number of offenses against the administration of justice supports these views.In 20082009, there were 890 breaches of or failures to comply with court orders in Nova Scotiaby Mikmaq offenders according to the Mikmaq Legal Support Networks court worker aggre-gate data. In that same period, court worker aggregate data shows that 961 Mikmaq LegalSupport Network clients had charges and were provided 3,979 court services, suggesting thatsystem-generated charges are increasing.

20. See Donald Clairmont and L. Jane McMillan (2001, 2006) for an analysis of percep-tions of crime, fear and victimization patterns and community perceptions on reporting crimes.

21. Noel Dyck (1985) examines the formulation of the Indian problem and explores themeans by which Indigenous people renegotiate with non-Indigenous new ways of understandingthe problem. Politics of embarrassment have encouraged action on the part of the Canadiangovernment.

22 Th I i h d f 113 i 14 h f b $7 illi



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the recommendations provided a means by which the Mikmaq couldmeasure their legal entitlements against those that had been removed fromthem through colonial and contemporary discriminatory legislation and prac-tices.23 Cultural production increased in Mikmaki24 post-Marshall as valued

components, ideas of legal entitlement, and senses of rights were articulatedinternally in opposition to inappropriate concepts imposed upon them fromthe dominant society. Community members used the situation to respond tothese challenges. Their questions were concerned with how to ensure sus-tainable mobilization of various groups as they competitively articulated theirlegal consciousness to generate legitimacy, efficacy, and authenticity for theirplatforms. These articulations were reactions to the pervasive legal hegemonyof mainstream justice and attempts to raise the asymmetrical power ratiobetween the two juridical systems. I agree with Frank Pommersheim (1995),

who argues that the unique legal realities created by tribal resistance to theprocesses of colonization and assimilation create the conditions for past andpresent Indigenous juridical practices to synthesize in projects of decoloniza-tion, but they also create fault lines in the shifting tectonic plates oftribal sovereignty (100) as people position themselves along a spectrum ofdifference.25

Of the eighty-two Marshall Inquiry recommendations, the majorityidentified problems with policing Aboriginal and other visible minorities andwith the administration of justice. Eleven dealt directly with proposedchanges to Mikmaq community-based justice. These included the recom-mendations that a community-controlled Native Criminal Court be estab-lished as a five-year pilot project to hear summary conviction offensescommitted on reserve and to provide diversion and mediation assistance,court worker services, fine option programs and community service orders,community input in sentencing, and postsentence aftercare. A second sig-nificant recommendation was the establishment of a Native Justice Instituteto coordinate community needs and the concerns of the Native CriminalCourt, to undertake research on customary law, to determine the extent towhich customary law should be incorporated into criminal and civil law as it

23. In Canada, an agenda was set forth calling for the provision of better access to allfacets of the justice system, more equitable treatment, greater Aboriginal control over servicedelivery, recruitment of Aboriginal personnel, cross-cultural sensitivity training for nonnatives,and more emphasis on alternatives to incarceration and crime prevention. Between 1975and 1990, more than twenty government reports reiterated these types of recommendations(Clairmont and Linden 1998, 45).

24. Mikmaki is the Mikmaq name for their territory, which traditionally encompassesthe Atlantic Provinces, the Gaspe Peninsula, and northern Maine. Today there are thirteenMikmaq reservations in Nova Scotia that are administered by Indian Act chiefs and bandcouncils under the Department of Indian and Northern Affairs.

25. Pommersheim (1995) and Larry Nesper (2007) examine the evolution of tribal courtjurisprudence in the United States. The Law Commission of Canada (2007) provides a collec-i f I di l l di i i C d



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applies to Aboriginal people, to train Native court workers for the NativeCriminal Court and conventional court, to consult with the government onjustice issues, to provide public legal education, to provide legal aid, andto monitor discriminatory treatment. Other recommendations included a

tripartite forum on Native issues to mediate Mikmaqprovincialfederaljurisdictions, an on-call interpreter for Mikmaq witnesses or accused, aNative Criminal Court worker program as an immediate first step in makingthe criminal justice system more accessible to Native people, and suggestedsittings of provincial courts on reserves.26

The Union of Nova Scotia Indians (UNSI) took the lead in respondingto the Marshall Inquiry.27 UNSI is a contemporary political organizationoperated by the chiefs elected under the Indian Act and by persons appointedto carry out administrative duties; it was one of the most powerful lobby

groups in Mikmaq country at the time of the Marshall Inquiry.28

In theirresponse to the Marshall recommendations, UNSI argued that the Mikmaqhave unique systems of social control that are formulated upon principles offairness and justice different from mainstream societys. The key question forUNSI is how best to harness Mikmaq concepts of justice in order to designand develop a legitimate, authentic, and effective justice system for Mikmaqcommunities. Mikmaq participation in the dominant justice system was notseen as adequately addressing the aspirations of their communities. Indeed,indigenization of mainstream justice may only facilitate an over involvementof the Canadian justice system in Aboriginal lives.29 The Mikmaq were notdemanding a wholesale separate justice system, but they were arguing forcontrol over procedures and processes, and the opportunity to develop new

26. Other recommendations endorsed legal aid funding to assign lawyers with a nativespecialization and a Native social worker to act as a liaison between community members andlegal aid services, improved relations with Nova Scotia Barristers Society, the recruitment of

Native constables, the input of community leaders in sentencing Natives, and the allocation ofa modicum of control postconviction to the community by way of Aboriginal probation officersand aftercare services on reserves (Royal Commission on Marshall 1989, 29).

27. UNSI is a political lobby group formed in response to the 1969 Department of

Indian Affairs White Paper (Dept IAND, 1969) (a white paper is a parliamentary documentthat reveals policy that a government intends to pass as law), which proposed wholesaleassimilation of Canadas Aboriginal peoples into mainstream society through the dissolutionof the Department of Indian Affairs and the Indian Act and the elimination of reservations,as well as the end of all transfer payments and special benefits to Aboriginal peoples. AcrossCanada, many Aboriginal communities formed political organizations such as UNSI to chal-lenge the White Paper, resulting in national Aboriginal political alliances (see Asch 1993,1997). Currently UNSI manages the modern tripartite treaty negotiations in Nova Scotia,through a process called Kwilmuk Maw-klusuaqn, which is a Mikmaq rights initiative thattranslates as seeking consensus.

28. Other influential political organizations include the Confederacy of MainlandMikmaq, Nova Scotia Native Womens Association, and Native Council of Nova Scotia.

29. Susan Haslip (2002) argues that the Canadian government problematically favorsindigenization over the creation of separate justice systems that could better reflect the culturaldistinctiveness of Indigenous communities. Also see Robert Depew (1996) and Paul Havemann(1988)



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practices based on their ontologies.30 At the time, cooperation with, ratherthan wholesale rejection of, the Canadian criminal justice was seen asnecessary. Yet, to use the system was interpreted by some as turning white,only to be employed as a last resort, or, ultimately, when you had no choice.

The consensus was if you were Mikmaq and brought before the courts, youwould be denied justice. The Mikmaq sought alternatives; their assertionswere framed as rights discourses, and people began looking to the preconfed-eration Peace and Friendship Treaties to support their claims to build thecapacity to manage their own justice processes.31

As per the Marshall Inquiry recommendations, a tripartite forum wascreated in 1991 to provide a mechanism to jointly discuss, negotiate, andresolve issues of concern between the Mikmaq of Nova Scotia and the federaland provincial governments. Initially uncertainty, mistrust, infrequent meet-

ings, and hostility about asymmetrical power arrangements racked the forum.These arrangements were further complicated by classic federal-provincialjurisdictional disputes that facilitated the avoidance of responsibility.32 Atfirst, Mikmaq inclusion was largely symbolic rather than substantive.33

During this process, the number of parties that wanted to address the problemof justice in Mikmaq country expanded to include every major political,social, and cultural organization, representing both on- and off-reservemembers. Each had its own ideas, its own political mandates, and justifica-tions about who should run Mikmaq justice and how it should be done. Eachorganization saw the inquirys recommendations as potential legitimation fordesperately needed job creation and income initiatives. Divisions quicklyemerged around whether or not Indian Actelected chiefs and councilsought to be stakeholders or whether the traditional political organization ofthe Mikmaq Grand Council should revitalize its juridical roles.34 The

30. This is in contrast to the expressions of indigenous sovereignty in Justin Richlands(2011, in this symposium) work in which he uses examples from the Hopi tribe and its legalsystem to suggest how their conceptualization and practices of sovereignty might repose on adeeply autochthonous understanding of Hopi tradition.

31. See William C. Wickens (2002) for an account of this rights discourse.32. Clairmont and McMillan (2001) detail the challenges and political conflicts markingthe early days of the tripartite forum. Today the tripartite forum is a productive, collaborativeorganization tackling jurisdictional issues and development within seven working committees,addressing culture and heritage, economic development, education, health, justice, socialdevelopment, and sport and recreation.

33. Dale Turner (2006) convincingly argues that meaningful participation generates epis-temological and practical problems in reconciling and accommodating indigenous forms ofknowledge with Western European philosophy, particularly when the legacy of colonialism andthe states unilateral claim of sovereignty are not adequately addressed, as is often the case inCanada.

34. The MikmaqSante Mawiomi, or Grand Council, is a precontact sociopolitical orga-nization that managed the affairs of the Mikmaq nation, determined trade, war, resourceregulation and dispute management. Through colonization, the Grand Council was reduced toa symbolic spiritual organization with strong ties to the Catholic Church. Recently, sectors ofh Mik i ki i i h li i l d l l l i i f h G d



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problems of who rightly held responsibility and control over justice led toirreconcilable debates and proved to be a significant stumbling block toimplementing Marshall recommendations.

Indian Actelected chiefs enjoy enormous authority in Mikmaq

communities. Among other powers, they control the dispersal of transferfunds and benefits, allocate housing and jobs, influence the provision ofhealth care and education, and negotiate status. They also determine whereon the agenda justice should be placed. This power is significantly filteredthrough federal and provincial policies and mandates that often contradictAboriginal community needs, capacities, and empowerment. Competition forscarce resources is the bane of every Aboriginal program and, in the case ofthe Marshall recommendations, exacerbated fragile relations between orga-nizations such as UNSI and those representing other sectors of the Mikmaq

Nation, such as the Native Council, which represent non-status Mikmaq.The federal and provincial parties appeared to facilitate the discord in orderto avoid the costs associated with committing to Mikmaq control of justice.The volatile issue of status and the persistent questions of who are thebeneficiaries of Aboriginal rights and title further complicated these contestsand detracted from reaching consensus in the construction of authentic andlegitimate Mikmaq justice practices.

CHALLENGING AND CONTAINING CO-OPTION

Visions of justice were varied. Some argued for a Mikmaq justice systemthat mirrored the Canadian system. Others called for a codification of cus-tomary law, a by-product of colonialism. The idea of setting up a justicesystem that was neutral, bias free, offender focused, and remote from leader-ship contradicted much of the early law ways research that suggested Mikmaqjustice relied on the intervention and mediation of well-respected leadershipand their spiritual helpers. Traditionally, Mikmaq justice was conciliatoryand holistically embedded in everyday interactionstalking it out, spiritualsanctions, elder knowledge and kinship networks, and restitution were usedto restore balance or improve harmed relations.

The impacts of the history of colonization, informed by the experiencesof residential schools, economic marginalization, systemic racism, classstratification, altered gender and generational roles, and criminalization ofMikmaq ways of life, all influence how people talk about, perceive, andexperience justice.35 It is widely held that using customary practices in a

Council and present it as a viable, culturally appropriate alternative to state-generated politicalstructures, namely Indian Act Chiefs and Councils.

35. I follow the important work of John Conley and William OBarr (1998, 1990), MindieL Bl k d S Hi h (1994) J h d J C ff (1997) M (1990) d



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contemporary framework will help fulfill concerns of cultural appropriatenessand fairness and are presented in opposition to the negative impacts ofcolonization and assimilative practices of the dominant society. Yet, articu-lating what are the customary practices and how they are made meaningful

todayand who decidesare complex and highly contested. Critical ques-tions of what Mikmaq justice is, how it works, and why, are repeatedly askedin a variety of shifting sociopolitical contexts over time, ranging from idealsof precontact governance to colonial treaty making to contemporary rights tocontrol resource management and regulation.

The central goals of Mikmaq justice aim to restore individual andcommunity relations to peace and balance altered through wrongdoings.Wrongdoings occur in the realm of peacemaking and moral communityrather than the law. The processes of making peace and restoring balance are

instigated by transgressions of customary law. Mikmaq moral systems includecustomary procedures to repair imbalances in the social fabric, to maintainreciprocity, and to ensure obligations are fulfilled in the maintenance ofrelations between the human and other-than-human worlds. The restorationof relations lies in kin and community networks informed by value systemsthat foreground respect, sharing, honor, healing, honesty, and forgiveness,not criminal codes. All citizens, and especially the elders, have to work hardand constantly to ensure peace and good governance in the face of all thedisruptions and contradictions of daily life.

A core concept in Mikmaq dispute management isapiqsigtoagen, whichtranslates as mutual forgiveness. It is contrary to any adversarial concepts orapproaches. To achieve apiqsigtoagen, one has to get to the heart of thematter in the Mikmaq way, which includes an explication of the conflict, acalming-down period, a rethinking of behaviors, and a reconnecting throughforgiving each other. It is a collective process, in which people are concernedwith helping each other become grateful, find courage, and reintegratewrongdoers into the community through teachings and talking it out, usuallythrough the counsel of respected elders. It is a flexible, oral process, notconstrained by time, precedent, or written codes of conduct. Avoidance or

nonconfrontation is a common feature of Mikmaq dispute management. Theparties to a dispute typically avoid interaction until such time as ongoingrelations require attention to the matter, or the cause of the conflict hasdissipated (calming-down period) and life continues. Intervention tends tooccur only when the conflict disrupts wider community operations, as there isa pervasive ethic of noninterference for members outside of extended kinshipnetworks where the locus of justice resides. Cosmological intervention ispart of the restoration of balance; what goes around comes around is an

June Starr and Jane Collier (1989) and Nader (1990) to frame my understanding of theexperiences of people seeking redress and to inform my analysis of their discourses within the

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oft-expressed sentiment in the context of disputes, and people rely onspiritual sanctions to sort out problems.

In generating alternative justice programs to accommodate these con-cepts, there emerge competing discourses36 reflecting questions of legitimacy,

authenticity, and efficacy of practices identified as Mikmaq, both withinMikmaq communities and between Aboriginal communities and mainstreamsociety, and ultimately revealed in the hegemony of Canadian law inMikmaq consciousness. The Mikmaq have two main goals: to ensure bettertreatment of their people as they encounter mainstream justice and to createtheir own system of justice in order to deal meaningfully with problems intheir territories.37

Following the release of the Marshall Inquiry report, a number of justiceinitiatives were implemented in Mikmaq communities, ranging from the

indigenization of mainstream programs to attempts at codifying customarylaw to programs of justice as healing. Initiatives such as Unamaki TribalPolice, Community Legal Issues Facilitators, the Shubenacadie Diversionproject, and the Mikmaq Justice Institute were ambitious but conservativeprojects that have all ultimately failed to achieve the main goals of Mikmaqjustice because they were completely co-opted by mainstream justice andtrapped in paternalistic fiduciary relationships. The Mikmaq had little roomfor innovation against the behemoth of the Canadian justice system.

Marshall Inquiry recommendation number twenty-one, Native JusticeInstitute, held the greatest promise of authentically accommodating Mikmaqjustice concepts embedded in language, kinship networks, mutual forgiveness,and spiritual practices. From this recommendation, an umbrella organizationknown as the Mikmaq Justice Institute was formed. Its mandate was toresearch, design, and implement community-based Mikmaq justice processes.It was felt to be the forerunner of Mikmaq self-determination and ideallylegitimized Mikmaq law ways against the inauthentic and ineffectiveCanadian system. Due to a lack of government support and imagination, itbecame a disappointingly understaffed, underresourced, glorified courtworker program.38 Complying within the constraints of the states culturally

36. Conley and OBarr (1990), Carol Greenhouse (1989), Merry (1990), and Bruce G.Miller (2000) each discuss the cultural nature of discourse and rely on discourse as an analyticaltool to understand the legal consciousness of the subjects of their research.

37. Union of Nova Scotia Indians response paper to the Royal Commission on theDonald Marshall, Jr., Prosecution; n.d., private archives.

38. The court worker program assists Aboriginal accused with understanding their legalrights, options, and responsibilities when appearing before criminal courts. It does not provideassistance to those appearing before family and civil courts, even though similar communicationproblems and cultural sensitivity issues are also at stake. It is a national justice service programavailable for all Aboriginal peoples regardless of where they live or their status (Inuit, Mtis,nonstatus, on or off reserve). Some programs operate proactively with workers attending courtsand seeking out people who need help, while others are accessible to clients through a local

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contradictory policy, and disempowered by the morass of bureaucracy thatthey had to navigate, the limited resources allocated to the justice institutewere quickly spent. Unable to focus on the research and design aspects ofMikmaq justice, the Mikmaq Justice Institute had little incentive to initiate

and assess the legal consciousness of the Mikmaq, a step essential to thefoundation and evolution of legitimizing alternative justice options. Theprovincial and federal governments mandates and budgets were too restric-tive and conservative and raised contentious concerns over human rightsviolations in the creation of a pluralistic system. In the end, the stateslimitations on the types of disputes permitted in the restorative processcrippled the capacity of Mikmaq justice to meet the changing needs anddemands of its diverse communities.

The state strategy was to minimize costs by working with other justice

models, such as low-harm offense and youth diversion strategies importedfrom other communities. The government measured success and efficacy bythe number of clients and recidivism rates. These metrics simply ignored theefforts of the court workers as they tried to help their communities navigatethe mainstream system while simultaneously trying to generate a legitimatecustomary system. The states band-aid measures woefully failed to answerMikmaq calls to fully honor the Marshall Inquiry recommendations. As withmany Aboriginal social service programs, complicated reporting complianceprocedures and the constant pursuit to secure funding absorbed opportunitiesfor innovation and expression of indigeneity on the ground.39 The MikmaqJustice Institute had to close its doors within three years because of challengesto its identity from the mainstream system, an overwhelming caseload, andcommunity demands that it act beyond its capacity as well as fight for treatyand Aboriginal rights in all forums.40

I agree with Bruce G. Miller (2000) and Wayne Warry (1998) thatcontemporary Aboriginal justice narratives are largely outward looking, pri-marily directed to managing relations with the dominant society. Due to staterefusal to fully commit to supporting a Mikmaq justice system, the negotia-tions were structured in ways that forced the Mikmaq to focus on purported

periods of primordial harmony or on limiting and artificial us versus themdichotomies in the hope of legitimating their demands against the hegemony

the consequences of the charges to their clients and their support networks. Ideally courtworkers help clients acquire legal representation and act as a referral service for translation andother social programs.

39. Craig Proulx (2003, 11) examines the creation of Aboriginal justice programs in anurban context and considers the colonial consequences of the appropriation by non-Aboriginalpeople of Aboriginal peoples power to define themselves and to act as self-determining agents.

40. Donald Clairmont and L. Jane McMillan (2001) conducted the forensic evaluation ofthe Mikmaq Justice Institute, where we argued that while the political-legal environment inCanada had become more favorable to change, there was modest implication from the point ofview of Aboriginal control and that the Marshall recommendations, as implemented, suggested

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of the state.41 The need to advance a united front justifying distinctiveMikmaq justice in the face of divide-and-conquer strategies crippledMikmaq capacity to fully consider issues of internal power and diversity. Thestate needed to justify any calls for pluralism to its largely conservative

electorate, and it did little to support the idea that Mikmaq justice is differentand that there is more than one law for all. Unfettered community-basedjustice processes legitimized by the state did not emerge in Mikmaki atthis time.

A strong sense of being set up to fail by the state permeated anatmosphere already heavy with mistrust and despair. The mainstream justicesystem became further entrenched in Mikmaq legal consciousness as anobstacle to, rather than a vehicle of, justice. Valuable energy and resourceswere dedicated to this particular battle, leaving little energy to devote to

internal identity negotiations and the cultural reinvigoration of justice prac-tices that respected the diversity of needs and expectations. A central chal-lenge for justice design in Mikmaq country was how to accommodate thosewho totally rejected the states justice system, while protecting those whodid not have confidence in Mikmaq law ways. Community confidence inMikmaq justice weakened through accusations of political interference,nepotism, and incompetence. In order to establish meaningful, culturallyemployable, localized justice practices, it is necessary to account for internaldiversity in terms of cultural interpretation and its application toward juridi-cal expectations.42

The problem of establishing independent Aboriginal service organiza-tions plagued the implementation of the Marshall recommendations. Thecomplexity of sorting out sources of authority is indicative of the challenge ofcreating systems that meet external stipulations at the cost of internal culturalinfrastructure and organizational realities. That the Mikmaq were not able todevelop an alternative, stand-alone, Mikmaq justice program was a signifi-cant disappointment to the many people who contributed so much to thedream. What remained was the recommendation that the Chief Judge of theProvincial Court take steps to establish regular sittings of the Provincial

Courts on Nova Scotia Reserves (Royal Commission 1989, 29) and to assistMikmaq people as they encountered the Canadian criminal justice system. 43

41. See Emma LaRocques (1997) powerful work, where she cautions us to ensure victimsinterests are not dismissed or silenced in the name of restoring harmony in Aboriginalcommunities.

42. Patricia Monture (1999), Ross G. Green (1998), Jane Dickson-Gilmore and Carol LaPrairie (2005), and Catherine Bell and David Kahane (2004) all acknowledge that failureto account for diversity often delegitimizes community-based processes and interrupts theirefficacy, forcing people to resort to the Canadian justice system to manage their disputes.

43. The Mikmaq Young Offenders project, which was a diversion program, evolved intothe Mikmaq Youth Options Program (MYOP) under the umbrella of Mikmaq Justice Institute(MJI). At the dissolution of MJI, the future of MYOP was uncertain. The MYOP processes rely

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BINGO HALL JUSTICE: THE ESKASONIPROVINCIAL COURT

Eskasoni is the largest of the thirteen reserves in Nova Scotia. It is

situated in the countryside of Cape Breton Island along the Bras dOr Lakesabout 50 km (31 miles) from Sydney, the third largest city in the province.According to Statistics Canada (2008), in 2006 the total population was2,952 people living in 834 dwellings on a land area of 36.13 square km (14square miles).44 In all, 1,855 residents are over the age of 15. Since 2001,there was a population change of 7.7 percent leading to an expanding youthpopulation. Only 140 people are over the age of 60, suggesting a life expect-ancy well below the national average of 80.2 years (Statistics Canada 2008).45

A significant majority of the population, 83.3 percent, identifies Mikmaq as

their mother tongue and 65.2 percent speak Mikmaq in the home. As of2006, Statistics Canada reported that the labor force participation rate was37.5 percent, and the unemployment rate was 28 percent. Among theMikmaq Nation, Eskasoni is known as a community that has held on to itsculture as evidenced by their utilization of traditional hunting and fishingterritories, the presence of large kinship networks, a high level of languageretention, an ongoing Grand Council membership, and the regularity ofcultural and ceremonial practices.

The provincial court began sitting in Eskasoni in 1996. Eskasoni is theonly community to have regular sittings of a provincial court, even thoughother Mikmaq communities, such as Indian Brook,46 have requested similarcourts. For the first eleven years, Eskasoni Provincial Court was located in thebasement of the Mikmaw Lodge Treatment Center, a drug and alcoholrehabilitation facility. In a room sometimes used for talking circles, work-shops, and bingo games, temporary partitions maintained a level of privacybetween clients of the treatment center and the court proceedings. Storagerooms were transformed into a judges chambers and prisoner holding cells.Security was minimal. More recently, the court has moved to the Sarah

MJIs downfall and set the groundwork for the current Mikmaq Legal Support Network(MLSN). MLSN is both a court worker and a customary law service and deserves attention ina separate article.

44. Statistic Canada numbers tend to be lower that the actual population due to censustaking challenges in non-English speaking, rural communities. Anecdotally the real populationis closer to four thousand based on Mikmaq Council configuration numbers. Band lists kept bythe band council include members who live on and off reserve and indicate a total bandpopulation over four thousand.

45. The average life expectancy in Nova Scotia, based on the 2005 data, is 79.3 years.46. Indian Brook is the second largest Mikmaq community in Nova Scotia, with a

population of 2,204 according to Statistics Canada (2006). Requests for a provincial court to sitat Indian Brook are denied due to cost and security issues. The closest court is at Shubenacadie,eleven kilometers (seven miles) away. Shubenacadie was the location of the ShubenacadieIndian Residential School that operated from 1929 to 1967, and which hundreds of Mikmaq

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Denny Memorial Cultural Centre,47 where bingo games and communitygatherings are regularly held.48 The walls of the large auditorium are paintedwith Mikmaq motifs and an eight-pointed star is inlaid in the tile flooring. Inthe front foyer is a large display of Mikmaq baskets and porcupine quill-

work.49 On the walls are portraits of respected cultural leaders. The scents ofsweet grass and sage, two of the sacred ingredients used in Mikmaq cleansingrituals, permeate the air. The large, open hall, with its bad acoustics, presentsobstacles to the conduct of a regular provincial court. Desks are set up for thejudge and the court staff, and chairs are arranged for the participants andonlookers. Security remains a concern for the court staff and victims. Withthe exception of the location, the court operates in the usual manner. Eaglefeathers or other indigenous symbols of truth-telling are not available; hencea bible is used.50 The judge wears his judicial robes, the lawyers and court

workers wear business attire, the officers wear their police uniforms, and thecommunity members tend to come as they are, in suits and dresses or fishingboots and hunting jackets. Interestingly, a male court worker for Eskasoni,who is a legal systemoriented actor wanting to obtain a law degree, calls forthe construction of a Canadian-style courthouse: If you build a courthousethere would be appropriate space for everyone, it would add to the legitimacyof it; I would say it would increase the profile. 51 The late Grand Keptin of theSante Mawiomi(Grand Council) shared the sentiment of the importance ofhaving a specialized space for Mikmaq justice. He thought that a MikmaqHall of Justice would be an important symbol of the Mikmaq Nationsindependence and authority and advocated for its creation throughouthis life.

The court generally sits biweekly; however, additional sittings areincreasingly common. The presiding judge is not of the community; heordinarily sits in Sydney and services Eskasoni as a satellite court. The firstjudge retired after two years. His replacement has remained on the Eskasonibench for over a decade. He is not Aboriginal. There are no Aboriginal

47. Sarah Denny was one of the leaders in Mikmaq cultural revitalization. She and herlarge family traveled across Mikmaki teaching Mikmaq songs and dance and the value systemsassociated with their performance. After the death of this respected elder, the Eskasonicommunity hall was renamed in her honor.

48. In February and March 2009, the Sarah Denny Memorial Cultural Centre was thelocation of a makeshift crisis center set up to assist the community in the aftermath of sixsuicides and drug overdoses that occurred between December 2008 and February 2009.

49. The Mikmaq are world-renowned basket makers. The tradition continues today(Whitehead 1982, 1991).

50. Researchers for the Mikmaq Legal Support Network examined peoples perceptionson having an eagle feather available for people speaking to the court; however, the researchersdecided the appropriate protocol was complicated and controversial. It was determined that theeagle feather was too sacred an object, and its use in a courtroom would be profane. SomeOntario provincial courts, such as Old City Hall and College Park, sorted through the protocolchallenges and now have eagle feathers available.

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prosecutors in Nova Scotia and very few Aboriginal criminal defense,family, or civil litigation lawyers. Non-Aboriginal legal aid lawyers represent95 percent of the people who appear in Eskasoni court. There is only oneAboriginal probation officer for the entire province; she works primarily with

the Eskasoni court, but resides in Membertou, a Mikmaq communityadjacent to Sydney.

The deputy sheriff is Mikmaq, as are the court workers and the trans-lator who service the court. There have been least seven different courtworkers in the past ten years. They are trained and employed by theMikmaq Legal Support Network, a program that assists offenders as theyencounter the mainstream system and offers a customary law program con-sisting of justice circles designed to craft community service orders and tohelp manage disputes that are diverted from the court. The court workers in

Eskasoni are fluent Mikmaq speakers who see their roles as providing guid-ance to offenders through the justice system. At present, Mikmaq courtworkers are only available for criminal court, but their services are direlyneeded in family court, which sits in Sydney. In May 2008, Eskasonilaunched a Mikmaq Victim Services Program in partnership with the pro-vincial victim service agency to assist Aboriginal crime victims as theyproceed through the mainstream court system.52 The Aboriginal victimsservice officer is a Mikmaq resident of Eskasoni, and she attends courtregularly to assist her clients.

A key feature of the court is its accessibility in terms of location andcourt staff. Formerly, Eskasoni residents traveled to a Provincial Court inSydney, some fifty kilometers (31 miles) away. Those without vehicles ormeans to hire transportation found it difficult to attend Sydney Court. Therelocation of the court to the community decreased the number of benchwarrants issued for failure to appear charges. Court day was originally everyother Thursday, but it was switched to Tuesdays to avoid coinciding with theday after welfare Wednesday when, according to one court official, a lot ofwildness went on,53 resulting in a number of failures to appear. In Eskasoni,the court administrator does not have an office or even a partition separating

her from the public. People approach her on recess to ask for information andto pay fines, thus eliminating the cost of travel to Sydney. The administratorknows everyone by name and often admonishes those who are repeaters. Theatmosphere is comparatively informal.

52. This important development is currently under analysis. Thus far, the number ofvictim impact statements received by the courts has increased according to the Victims ServicesOffice, but statistical data is not yet available. The new victims services program may work tocorrect the imbalance in the adversarial system and offer opportunities for talking it outinclusion and healing, but in its current state, it is an indigenization of a mainstream programand may enhance rather than mitigate adversarialism.

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An additional comfort factor is the language. Eskasoni is a communitywith high language retention as Mikmaq is spoken in most of the homes andtaught in the local school. The Marshall recommendations generated thedevelopment of the Mikmaq translation service. Before the judge enters

the court, everyone is speaking Mikmaq, and people are very animated. TheMikmaq deputy sheriff of the court sits with the accused and those in custodyand speaks with them in Mikmaq, often joking and using humor as a way toput people at ease. This is characteristic of Mikmaq culture, as joking,teasing, and laughter are central features of interaction, even when faced withserious matters.

Question (Jane McMillan):What do you think of Eskasoni Court?

Answer (community member):It is great. It is convenient. A lot of people are on welfare and they donot have vehicles, they have a hard time getting to Sydney Court.Eskasoni Court is not that formal or strict. When you walk in SydneyCourt you can hear a pin drop. When you walk in Eskasoni Court, it islike a bingo hall. It is the personality of the culture, I guess. The judgeknows. People do whisper. But people dont whisper in Sydney Courtbecause they are looked at with shame.54

The judge also recognizes this feature and is very grateful for the role the

deputy plays in helping reduce the formality of the court process for themembers of this community.55 While court is in session, the primary languageis English; the judge will not allow court to proceed if the interpreter is notavailable. However, it is the legal language of the courts that is translated intoMikmaq. Mikmaq justice concepts are not translated or adopted by thecourt. In regard to legal language and understanding, the presiding judgestated:

I am always concerned that they understand what exactly is going on. Idont know that they have great appreciation for what it is. I think mostof them know why they are in court, but as far as they are concerned theythink if you are here in court you could go to jail. That is the reality theyassociate with and they know, I think most of them know, that they arenot going to go to jail unless it was pretty serious, that is always aconsequence.56

54. April 15, 2001. Membertou, Nova Scotia. McMillan interview transcript.55. After making a presentation at the National Judicial Institutes Aboriginal Law

seminar for Canadian judges, the judge presiding in Eskasoni approached me and introducedhimself as The Bingo Hall judge; I am ever grateful for the time he shared with me during ourinterviews for this research. Two interviews were conducted with this judge, one in 2004(informal) and one in 2008 (formal).

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Moreover, the judge goes through his docket in manner that allows offendersthe greatest opportunity to appear before needing to issue a bench warrant.

If they did not appear, I issue the warrant for their arrest, and often as

not, because it is Eskasoni, and everybody knows everybody, the policewill see them on the street and say, Hey there is a warrant for yourarrest. Now you can have it one of two ways; I can go back to the stationand get the warrant and take you to Sydney or are you going to show upin court Tuesday morning in Eskasoni? Well of those, 95 percent showup because they are afraid that they are going to get arrested. So there isa different dynamic that works there. If they had all those warrants andran out right away and executed them all, then they would have all kindsof people plugging up the court system with being charged with failure toappear. Now often they charge them with failing to appear in court, but

they do not just arrest them for that charge alone because where are theygoing? So they just add it on. That is where perhaps it is a dynamic thatworks differently with the police and the courts too. They are not goingto be there (in court) and that is all there is to it, so go with it. Theywould only pick up on a regular basis if there is a warrant arrest forsomebody who failed to appear for a serious charge. But if it is theft of aguys chainsaw or something like that, well, we got the chainsaw, it issitting at the police station, so whats the point of hauling that guy inand having him in custody, plus all the paper work, plus all the tying upof the police officer, driving him into Sydney, that sort of thing?57

He also demonstrates an appreciation for differences in cultural conceptionsof time and punctuality.

You do not go out there with the clock and say court starts at 10 oclock.If you want to do that, you might as well get someone else to do it. Courtis supposed to start at 10 a.m. I could almost absolutely say it has neveronce started on time. There is no point to it. They all joke about itthemselves: it is Indian time.58

Most Eskasoni residents favor these conveniences of the local court.There is a sense of ownership, and some residents refer to it as our court.Many of the people I asked about Eskasoni Court laughed during theirresponses, with several people indicating that humor was a major differencebetween the community court and the formal courts in town (Sydney). Amale respondent who had attended the court found the relaxed atmospheremore conducive to repairing harmed relations, something he has not wit-nessed in his many visits to Sydney Court.

57. February 6, 2008. Sydney, Nova Scotia. McMillan interview transcript.58 Ibid



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Eskasoni Court is less intimidating. It is a different atmosphere. I wasthere twice. You can see people making amends to each other right inthe court. In the city court you are afraid the cops are watching you, andyou are not supposed to be talking to this person. But in Eskasoni I have

seen them laughing and making amends to each other. There is a sheriffor two there. A lot of the people have been in the rehab [MikmawLodge, the original site of the courtroom]. It is a familiar place, and thereis a kitchen there, and it does not feel like you are in a box.59

Despite these modest accommodations, a legal aid lawyer who formerlyworked at the court summarizes the reality of the Eskasoni Court: It is awhite judge, and a white prosecutor, and white legal aid lawyers, so thelanguage barriers are there.60 Translation is an issue in any court whereMikmaq people are present. She adds that in terms of dealing with the court

in general, it is a bit of a fallacy, because we are still bringing our justice systemto the reserve, and it is not what I think was envisioned by the Marshallinquiry in terms of actual Aboriginal justice.61

MIKMAQ LEGAL CONSCIOUSNESS AND THE ESKASONIPROVINCIAL COURT

Eskasoni is currently policed by the Royal Canadian Mounted Police

(RCMP),62 which has a local detachment with a lock-up situated in themiddle of the community.63 According to a local Mikmaq officer who hasworked in the community all of his policing career, the only change he hasseen in the last fifteen years of the court is the fact that there is more court.64

59. September 18, 2006, Membertou, Nova Scotia. McMillan interview transcript.60. March 15, 2002. Sydney, Nova Scotia. McMillan interview transcript.61. March 15, 2002. Sydney, Nova Scotia. McMillan interview transcript.62. RCMP data for Eskasoni for the period 2002 through 2005 indicated that person

offenses (primarily assault level one) declined steadily and significantly (over 30 percent) from2002 to 2004, and leveled off again since then. Property offenses (e.g., theft, breaking andentering) and other criminal code offenses (e.g., disturbing the peace, bail violations), havevaried somewhat with no discernible pattern number-wise, as have liquor violations. The 2005Eskasoni RCMP occurrence statistics indicated youth offending was primarily violation ofprovincial statutes (liquor and trespassing violations) and of other criminal code (over 90percent involved disturbing or breaking the peace); overwhelmingly, these offenses did notresult in charges being laid (basically one charge laid per 7.5 not charged). There werecomparatively modest numbers of assaults and breaking and entering reported for youths and,not surprisingly, charges were more frequent for these offenses, although the majority again didnot result in charges being laid (basically one charge laid per 3 not charged). The EskasoniRCMP data did not allow for an assessment of trends in youth offending (Clairmont andMcMillan 2006).

63. The history of policing in Eskasoni is rich and complex. Donald Clairmont (1999,2000, 2004) has followed the rise and fall of the Unamaki Tribal Police Service.

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After several years of a stable and declining crime rate between 2002 and2005, in 2007 and 2008 there was a marked increase in the number of liquorcontrol act violations, which shot up from 217 in 2007 to 473 in 2008. Bailviolations increased from 34 in 2007 to 71 in 2008; breaches of court orders

decreased from 102 in 2007 to 87 in 2008, but in 2009 the numbersrebounded upward to over 100. The total number of RCMP case files openedin Eskasoni in 2008 were 3,362, up from 2,579 the year before with distur-bances, liquor control act violations, and assaults accounting for the majorityof police crime statistic information.65 This same officer believes the commu-nity is generally more accepting of the court but that there is still a lot ofresistance: people are charged but they do not come to court, nor do thewitnesses. In part, as he explains, this is because many parties resolve theirconflicts before they get to court. As he puts it, They are fighting one day but

the next day they are walking together; they already have apiqsigtoagen, theyalready had forgiveness. Some people do not show up because they areintimidated by the system: People do not take justice very well here; thelegal jargon of the judge and the lawyers is alienating for the people.

The police officer points out that the court system does not generatehealing; there is no reintegration process. That is why there are so manyrepeat offenders: there is no help being offered, no healing for themselves.The community is not involved. You do not have to face each other. Thecourt puts on protection orders and they are all breached in a week or two.He is in favor of creating more healing circles as the strategy best suited toaddressing the issue of responsibility. Court-delivered remedies removeresponsibility from the community and interrupt the opportunities for restor-ing the balance disrupted by the harm done.

The crown prosecutor of the Eskasoni Court questions the efficacy andlegitimacy of the court for Eskasoni residents:

I have been prosecuting there for the last five or six years. It is interestingthat there is very little that goes by way of a trial. I attribute it to the factthat everyone is related and has to get along. If someone pleads not

guilty, there is a nine-month lag to trial and by the time that rolls aroundthe matter has been settled, hurt feelings mended, apologies made. Noone seems to care about the trial. It could also be, though, that no onewants to show that they care. They may wish to avoid the responsibilityof having jailed or punished a member of their community. In theirjustice, everyone has some responsibility, so it is likely difficult to pros-ecute if the victim feels they are partly responsible and dont wish to beseen as denying their own responsibility. Maybe two or three trials goahead per year.66

65. Detailed crime statistic reports for 2007, 2008, and 2009 ( January to April) providedby the Eskasoni RCMP detachment.

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The threat of jail is a limited deterrent. Removing people from thecommunity and from facing their responsibilities in the reparation of wrongedrelations does not usually facilitate the reciprocal nature of apiqsigtoagen. Infocus groups, I often hear youth talk about going to jail as a rite of passage. For

some members, jail is a favorable alternative to a life mired in poverty,insecurity, and violence because it offers predictability and structure, threemeals a day, and a warm bed.

The court workers have the difficult job of translating the authenticity ofthe Canadian justice system for their Mikmaq clients. A female court workerfor Eskasoni notes as follows:

The cultural barrier is still quite strong. A lot of them are not guilty andthey just want to plead guilty. Some know the whole process already

because they are going back. Some dont have respect; they dont careabout anything. They say, I will just go to jail, or I will not pay myfines. They will not show up for court and they dont care, they go tocorrectional. Some are really embarrassed by what the judge has to sayafter sentencing, but there are some people who just do not care.67

The court has been in operation for over a decade. As people becomefamiliar with it, there is a sense that some are seen as able to manipulate thecourt toward favorable legal outcomes without providing any resolution tothe conflict that put them there in the first place. This is a phenomenon that

has been noted in restorative justice programs, particularly when dispositions,such as conditional sentences, are viewed as inadequate.68 People seek loop-holes in programs to try and control the outcomes, thus causing credibilityand efficacy concerns.

A middle-aged, educated, unemployed, Native rights activist shared herthoughts on the efficacy and legitimacy of the court:

Question (McMillan):What do you think of the Eskasoni Court?

Answer (activist):I dont know. I have been to Eskasoni Court with a few people acouple of times, and it is becoming a joke almost because we arecommunity members, and we hear the stories the lawyers are pre-senting to the judge as defense, and I hear these stories, and thewitnesses stories, and you know they are outright blatant liesbecause I know the individual, I live in the same community. I know

67. February 13, 2008. Eskasoni, Nova Scotia. McMillan interview transcript.68. Annalise Acorn (2004), James Zion (2006), Dickson-Gilmore and LaPrairie (2005),

Green (1998), and Heather Strang and John Braithwaite (2001) all provide valuable critiquesof restorative justice and unpack the rhetoric that produce false dichotomies between restor-ative and retributive justice to reveal the complexity of power dynamics at play within justice

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it is a bunch of crap from the lawyer, but as a community member Ihave no say. So, how can you have faith in a system that is so easilymanipulated?

Q: Are a lot of people using that court?

A: Usually people with peace bonds or impaired driving, assaults, B andEs [breaking and entering] and you see they will get a slap on thewrist most of the time. And then how are we supposed to find closurein that? My neighbor raped my other neighbor and he gets a slap onthe wrist, and I am supposed to feel good about that? I am reallydisillusioned with that, only because the players are not of thiscommunity. The judge, the lawyers, the defense, they are not of thiscommunity, so it is just a foreign system. It just saves on Indianpeople from traveling to Sydney. They are being prosecuted, ordefended, or whatever, in a familiar setting.

Q: Are they getting less severe punishment here then they are inSydney?A: I have no comparison. When I have been there I just did not agree.

The decisions were based upon lies, so how could the thing be just,or the punishment just?

Q: What could be done to resolve that?A: Getting our own people in there.Q: So having Mikmaq lawyers and judges?A: Having Mikmaq lawyers and judges that are part of the community;

that live in the community. You have to be here, you have to be

spiritually, physically, emotionally linked to understand what isgoing on here. To be able to understand the context of what we areliving here, because it is very different. What is going on here, andhow it is going on, is nothing like what is going on in the outside. 69

CONCLUSION

One of the key contemporary discourses in Mikmaq society is that ofcolonization and its impact on Mikmaq culture. The Canadian justice system

embodies colonial relations. The colonization of Mikmaq legal consciousnesscharacterizes their juridical discourses and practices and has since becomehegemonic. This is revealed in powerful oppositional discourses of justice asentitlement, justice is just us, and justice as healing and through the workof the Mikmaq Legal Support Network to reproduce customary concepts likeapiqsigtoagen. Mikmaq resistance to colonization is signified large in present-day legal consciousness because these events are very much part of Mikmaqidentity, lived experiences, as well as shared and contested histories. Theeventsframe how Mikmaq people negotiate, enact, and legitimate individual

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and collective understandings of themselves and others. The expressions oflegal consciousness are part of the process of cultural revitalization and cul-tural production, because emerging discourses that capture the past and yetare crafted as resistance, rights, and healing dialogues, facilitates their con-

struction. Where the Canadian justice system fails, Mikmaq justice is calledupon to answer those failures. These productions are framed as oppositionaldiscourses to domination and are highly politicized.

Legal consciousness is embedded in the practical construction of dailylife. It is part of the process whereby the person is continually constituted byexternal sociocultural forms. Legal consciousness is shaped by personal andcollective experience, through competing discourses regarding the legitimacy,authenticity, and efficacy of practices identified as Mikmaq, both withinMikmaq communities and between Aboriginal communities and mainstream

society. Some people identify with the authority of the court while othersidentify with the legitimacy of Mikmaq law ways. Legal consciousness, whileculturally constituted, also culturally constitutes. Legal consciousness is his-torically situated, fluid, dynamic, and often contested within and betweensocieties as individual and collectivities give meanings to their culturallyinformed experiences and beliefs. Forms and expressions of legal conscious-ness are sources of solidarity, crisis, conflict, and contradiction, as theMikmaq identify their law ways both as opposition to mainstream justice andwithin processes of decolonization.

The examples used here demonstrate forms of resistance andco-optation. Mikmaq law ways and those that practice them challenge thestructures of hierarchies of authority that have long been sustained by thehegemony of mainstream justice: the power of the judge and the adversarialnature of prosecution. Courts demand a social interaction predicated ondeference, respect, constrained emotions, and a sense of seriousness that doesnot allow much room for humor and, perhaps most important, relies on truthtelling. That Mikmaq persons sometimes lie about the problems that broughtthem to court is no different than other persons going to court wanting toprotect themselves from punishment. However, in small-scale communities

like Eskasoni, where people are more likely to know what has happened,cooperating in lies may be seen as an inversion of the authority of the courtwith the power of knowledge, of exclusive truth, held by communitymembers, reversing or refusing to acknowledge the lines of authority held bythe court.70 Even though they may be in crisis and conflict with each other,when faced with a common enemy, in this case the dominant legal system,community members can and do act in concert against the law. Having the

70. Ewick and Silbey (1998) might call this resistance to the arbitrary power of law. Thereis a normative consensus that Mikmaq law ways are better suited to Mikmaq problems, but thehegemony of the Canadian legal system presents significant challenges to their expression and

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court in the community provides a consciousness of opportunity to enactresistance by choosing to participate, or not. Perhaps bolstered by the familiarsurroundings, peer support, and in knowing that failure to find justice in thiscourt is not the fault of the participants, but rather the failure of the foreigners

for trying to impose that system where it does not belong, reducesco-optation. Ultimately, and sadly, these processes legitimate acts that maylead to further injustices. Opponents in court may shift from being commu-nity members in a dispute against each other toward joining forces against thesystem. Because this system so conspicuously communicates the definitionsand labels of domination, court experiences reify the positions of self andother within the Mikmaq community, creating conditions for consciousresistance, both individual and collective.

This is not to say that every case that goes before this court is an act of

resistance. Indeed some members of the community actively seek out thecourt to remedy their problems or to help them avoid facing their communityand cultural responsibilities. When considering the option of a sentencingcircle, the Eskasoni Court judge recounts the following exchange with thecrown and an offender:

I will quote you exactly how I put it to the last one who had a seriousoffense. The guy said, I would rather take my chances with the whitemans justice, and by that he did not mean that he is going to get offeasier; I think he felt there is too much personal embarrassment, too

much shame within the community environment. He did not want tohave to deal with all of the baggage involved. I [judge] said to the crown,Are you sure the guy does not think he is going to walk out the doorwith nothing? He said, No, he just could not handle all of the baggagethat comes with the sentencing circle.71

Perhaps it is a result of internal colonization that Eskasoni residents donot see Mikmaq justice alternatives as more legitimate than court, particu-larly given the emphasis on Mikmaq values and practices within the com-

munity at large. A surprising number of research participants indicated thatthat procedural conflicts could be resolved simply if the operation of theCanadian justice system was indigenized, rather than changing the processitself.72 Indigenization schemes touted in the Marshall recommendationshave yet to materialize, even though twenty years have passed since the reportwas released. In fact, there is an increasing voice in Mikmaq communitiesthat demand indigenization and the employment opportunities associated

71. February 6, 2008. Sydney, Nova Scotia. McMillan interview transcript.72. Ted Palys and Winona Victor (2007) describe the fruitless attempts to indigenize

Aboriginal justice in Sto:lo Nation (British Columbia) and the work done in that communityto take responsibility for justice using ancestral traditions and values in an exercise of

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with affirmative action; however, Canadas behavior does not favor indigeni-zation of Aboriginal justice, as it appears rather that it simply wants to co-optthe community to do part of the states routine grunt work. Some peopleargue such co-optation is big step backward from the autonomous justice

envisioned by those seeking self-determination and demanding overdue res-titution of dignity in a context of sovereignty. The Mikmaq Legal SupportNetwork (MLSN) is working to expand its mandate beyond a criminal law,offender-based programming to move toward an inclusive, holistic programutilizing the concepts of healing and of apiqsigtoagen in their customary lawapproaches to family, civil, and resource regulation. Such expansion holdsgreat promises for cultural sustainability, productivity, and perhaps freedomfrom the state structural attenuation of local initiatives.

Eskasoni Court offers a venue that appears more sensitive to Mikmaq

needs and allows for the reparation of some relations between communitymembers. The ways that people talk about court indicate that it is far from aperfect solution to the problem of justice in Mikmaq communities. Of all theMarshall Inquiry recommendations, it is perhaps the most conventional andreflects more the mainstream legal consciousness than those of Mikmaki.73

Clearly Eskasoni Court does not intentionally accommodate Indigenousdispute management practices, nor does it oblige the Mikmaq legal con-sciousness that desires the construction and expression of Indigenous legalregimes to govern Indigenous knowledge and experience (see Shawana2007). The tensions between legal ontologies remain intact. Internal colo-nization counters the efficacy of both mainstream and Mikmaq approaches tojustice, and the consequences are high for the legitimacy and authenticity ofMikmaq justice processes. After decades of state intervention, Indigenouscommunities accustomed to state control rely more and more on the state;conversely, the state wants to find ways to shift the costs of this burden backonto the local communities. Eskasoni Court provides a modest venue forexploring the cultural repertoire of law and reveals the heterogeneous,multidimensional, and contradictory nature of the challenges of employingIndigenous values of justice in a world dominated by mainstream legal

consciousness.

REFERENCES

Acorn, Annalise. 2004. Compulsory Compassion: A Critique of Restorative Justice.Vancouver: UBC Press.

73. Wayne Warry (1998) discusses the conservative approach of the government and theAboriginal Justice Directorate that funds and monitors only minor projects in aboriginalcommunities. Warry argues, The lack of progress in this area is partially explained by the factthat the criminal justice system is inherently conservative, and a primary instrument of colonial

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Asch, Michael. 1993.Home and Native Land: Aboriginal Rights and the Canadian Constitu-tion. Vancouver: UBC Press.

. 1997.Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect forDifference. Vancouver: UBC Press.

Battiste, Marie. 2000.Reclaiming Indigenous Voice and Vision. Vancouver: UBC Press.Beare, Margaret, and Tonita Murray. 2007.Police and Government Relations: Whos Calling

the Shots?Toronto: University of Toronto Press.Bell, Catherine, and David Kahane. 2004. Intercultural Dispute Resolution in Aboriginal

Contexts. Vancouver: UBC Press.Borrows, John. 2002. Recovering Canada: The Resurgence of Indigenous Law. Toronto:

University of Toronto Press.Christie, Gordon. 2007. Police-Government Relations in the Context of State-Aboriginal

Relations. In Police and Government Relations: Whos Calling the Shots? ed. MargaretBeare and Tonita Murray, 14771. Toronto: University of Toronto Press.

Chute, Janet. 1999. Frank G. Specks Contributions to the Understanding of MikmaqLand Use, Leadership, and Land Management. Ethnohistory 46 (3): 481540.

Clairmont, Donald. 1999. Community Perceptions of Policing and Justice Issues: A SurveyConducted on Behalf of the Unamaki Tribal Police. Halifax: Atlantic Institute ofCriminology.

. 2000. Policing in Indian Brook. Ottawa: Aboriginal Policing Directorate, SolicitorGeneral of Canada.

. 2004. Case Studies of Effectiveness in First Nations Policing. Ottawa: AboriginalPolicing Directorate, Solicitor General Canada.

Clairmont, Donald, and Jane McMillan. 2001. Directions in Mikmaq Justice: An Evaluationof the Mikmaq Justice Institute and Its Aftermath. http://www.gov.ns.ca/just/publications/docs/TriparFor.pdf (accessed August 26, 2010).

. 2006. Directions in Mikmaq Justice: Notes on the Assessment of the Mikmaw LegalSupport Network. Halifax: Atlantic Institute of Criminology. http://www.sociologyandsocialanthropology.dal.ca/Files/DIRECTIONS_IN_MI%27KMAQ_

JUSTICE_-_NOTES_ON_ASSESSMENT_OF_MI%27KM.pdf (accessed August26, 2010).

Clairmont, Donald, and R. Linden. 1998. Developing and Evaluating Justice Projectsin Aboriginal Communities. Ottawa: Aboriginal Corrections, Aboriginal PeoplesCollection.

Comaroff, John, and Jean Comaroff. 1997. Of Revelation and Revolution: The Dialectics ofModernity on a South African Frontier. Chicago: University of Chicago Press.

Conley, John, and William OBarr. 1990. Rules versus Relationships: The Ethnography ofLegal Discourse. Chicago: Chicago University Press.

. 1998. Just Words: Law, Language, and Power. Chicago: Chicago University Press.Department of Indian Affairs and Northern Development. 1969. Statement of the Govern-

ment of Canada on Indian Policy 1969. Ottawa: Queens Printer.Depew, Robert. 1996. Popular Justice and Aboriginal Communities. Journal of Legal

Pluralism and Unofficial Law 36:2167.Dickson-Gilmore, Jane, and Carol La Prairie. 2005. Will the Circle Be Unbroken? Aboriginal

Communities, Restorative Justice, and the Challenge of Conflict and Change. Toronto:University of Toronto Press.

Dyck, Noel. 1985. Negotiating the Indian Problem. Culture1:3141.Ewick, Patricia, and Susan S. Silbey. 1998. The Common Place of Law: Stories from Everyday

Life. Chicago: University of Chicago Press.

Geertz, Clifford. 1983. Local Knowledge: Fact and Law in Comparative Perspective. InLocal Knowledge: Further Essays in Interpretive Anthropology, 167234. New York: BasicB k



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Green, Ross G. 1998.Justice in Aboriginal Communities Sentencing Alternatives. Saskatoon:Purich.

Greenhouse, Carol. 1989.Praying for Justice. Ithaca, NY: Cornell University Press.Hamilton, Honorable Alvin, and Honorable Murray Sinclair. 1991. The Report of the

Aboriginal Justice Inquiry of Manitoba. Winnipeg: Public Inquiry into the Administra-tion of Justice and Aboriginal People.

Harring, Sidney L. 1998. White Mans Law: Native People in Nineteenth-Century CanadianJurisprudence. Toronto: Osgoode Society for Canadian Legal History, University ofToronto Press.

Haslip, Susan. 2002. The (Re)Introduction of Restorative Justice in Kahnawake: BeyondIndigenization E Law: Murdoch University Electronic Journal of Law. 9 (1). http://www.murdoch.edu.au/elaw/issues/v9n1/haslip91.html (accessed September 10,2010).

Havemann, Paul. 1988. The Indigenization of Social Control in Canada. In IndigenousLaw and the State, ed. Bradford Morse and Gordon Woodman, 71100. Dordrecht,Holland: Foris Publications.

Henderson, James Sakej Youngblood. 1997. The Mikmaw Concordant. Halifax: FernwoodPress.

Jackson, Michael. 1989. Locking Up Natives in Canada.University of British Columbia LawReview23:215300.

. 1992. In Search of Pathways to Justice: Alternative Dispute Resolution in Aborigi-nal Communities. University of British Columbia Law Review Special Edition:Aboriginal Justice 147238.

Kostiner, Idit, Laura Beth Nielsen, and Benjamin Fleury-Steiner. 2006. New Civil RightsResearch: A Constitutive Approach. Surrey, UK: Ashgate.

Knockwood, Isabelle. 1992.Out of the Depths: The Experiences of Mikmaw Children at theIndian Residential School at Shubenacadie, Nova Scotia. Lockeport, Nova Scotia:Roseway Publishing.

LaPrairie, Carol. 1994. Seen But Not Heard: Native People in the Inner City. Ottawa:Department of Justice.

LaRocque, Emma. 1997. Re-examining Culturally Appropriate Models in Criminal JusticeApplications. Aboriginal and Treaty Rights in Canada, ed. Michael Asch, 7596.Vancouver: UBC Press.

Law Commission of Canada. 2007. Indigenous Legal Traditions. Vancouver: UBCPress.

Lazarus-Black, Mindie, and Susan Hirsch. 1994. Contested States: Law, Hegemony andResistance. New York: Routledge.

Linden, Hon. Sidney. 2007.

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