Dawnland Voices: An Anthology of Indigenous Writing from New England

Jaime Battiste

93 more handshakes dry palms wet again. Saunter out the old Indian Day School now band office, boxes go out with white blisterless hands clutching pens like Cornwallis trophies Black ink slowly drying with red splatters here, there . . . Jaime Battiste (b. 1979) Jaime Battiste has a bachelor of arts in Mi’kmaw studies and bachelor of law from Dalhousie Law School. He is a First Nations and Mi’kmaq advisor, a constitutional and human rights advocate, and an advocate for First Nations youth. He has been on the national executive council of Assembly of First Nations and an assistant professor of Mi’kmaq studies at Cape Breton University and is now the legal advisor of the Grand Council of the Mi’kmaw Nation. He has published law review articles about Mi’kmaq law and Aboriginal and treaty rights and a book looking at the four-hundred-year history of Mi’kmaq diplomacy titled Honoring 400 years: Kepmite’tmnej. He was honored as a national role model by the National Aboriginal Health Organization. The following essay excerpt originally appeared in the Dalhousie Law Journal. From “Understanding the Progression of Mi’kmaq Law” Since the Court’s recognition of aboriginal and treaty rights has affirmed the contemporary jurisgenesis of the Mi’kmaw creation story, the Crown and its agencies must acknowledge and establish a mechanism to implement treaty rights and constitutionally reconcile aboriginal rights of the Mawi’omi.¹² This process should be guided by Mi’kmaw oral teachings, legal traditions, and the constitutional framework, rather than be shaped by a policy framework developed unilaterally by the Crown. These teachings , traditions, and treaty are the origin of the constitutional relationship 94 mi’kmaq between the Mawio’mi and the Crown. They generate a sui generis relationship that is empowered by the core precepts of the honour of the Crown. This constitutional relationship has three distinct but often converging components: a respect for aboriginal law and tenure of the Mawio’mi, a mutual treaty relationship, and a fiduciary relationship embedded in imperial law. Any of these relations give rise to distinct constitutional obligations of the Mawio’mi and the Crown that inform the obligation of honourable governance. Our history as Mi’kmaq has showed us that we have persevered through many obstacles and many misfortunes. As Mi’kmaq in Atlantic Canada we have our own indigenous laws, yet for a few centuries, as today, the courts and politicians have tried to persuade our people that these are not valid and must be abandoned. However, recent cases such as Simon, Marshall, and Sappier-Gray have helped to paint a different picture of our future. At the same time this trilogy of Mi’kmaq Supreme Court victories affirms our sacred teaching in the Mi’kmaq creation story. Recent cases have pointed out that our laws, embedded in our languages, are important keys to advancing our rights. While the courts have accepted the arguments put forward by Mi’kmaw people regarding the meaning of sui generis treaty and aboriginal rights, it is for us, as Mi’kmaq leaders, now and in the future, together with Mi’kmaq people, to truly define who we are for ourselves and what laws we seek to hold. In the past the Mawio’mi has asked elected leadership at the band and organizational level to work together as a nation and not be divided by Canada’s strategy of using Indian Act bands to carry out a band-by-band approach to negotiating. This advice was supported in the report of the Royal Commission on Aboriginal Peoples, which advanced a nationhood approach to problem solving as an answer to the multiple economic and political issues. That said, it must be stated that there are many Indian Act chiefs who have urged working together and gaining capacity as chiefs working together on behalf of their nation. They, along with the Mawio’mi, argue that temporary solutions that ignore long-term problems will continue to lead us down the wrong path. The Harvard Project on American Indian Economic Development is one example of research conducted, Jaime Battiste 95 showing how short-term nonstrategic decision making is characteristic of the standard approach of Native Nations. This approach has resulted in failed enterprises, highly dependent economies, and continued poverty and cultural stress. This is why different approaches must be taken that take into consideration long-term strategies that decrease dependency on year-to-year...