Patricia Silbey

Law & Social Inquiry
Journal of the American Bar Foundation
Law & Social Inquiry Volume 36, Issue 1, 171200, Winter 2011
Colonial Traditions, Co-optations, and Mikmaq Legal Consciousness

L. Jane McMillan
In 1996 a provincial court was established at Eskasoni Mikmaq Community in Nova Scotia, Canada, in response to overwhelming evidence conrming the failures of the Canadian legal system to provide justice for Indigenous peoples, and as a specic recommendation of the Royal Commission on the Donald Marshall, Jr., Prosecution. Marshall, a Mikmaq wrongfully convicted of murder, served eleven years of a life sentence before proving his innocence. The importation of provincial legal culture into an Indigenous community creates tensions and contradictions surrounding the legitimacy, authenticity, and efcacy of Indigenous laws. The ontological conicts that arise from the imposition of a justice system integrally linked with colonization, criminalization, and assimilation cannot be resolved through indigenization of court staff and administrative conveniences. The Mikmaq continue to assert their laws and articulate their legal consciousness against the co-optation of dominant system, with mixed results.
INTRODUCTION
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The Mikmaq Nation has occupied Atlantic Canada for thousands of years. For the last four hundred, they have been subject to European colonialism. However imperiled their sense of nationhood and pride, components of their tradition and culture survive. Much, however, has been marginalized or eroded, including the customary laws that governed dispute resolution
L. Jane McMillan is Canada Research Chair of Indigenous Peoples and Sustainable Communities and Assistant Professor of Anthropology at St. Francis Xavier University. The author is indebted to Donald Marshall Jr., the staff of the Mikmaq Legal Support Network and the 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 nancially supported this study. Many thanks to Justice Melvyn Green, the anonymous reviewers, and the Law and Indigeneity Collaborative Research Network of the Law and Society Association for their very insightful comments. Please direct correspondence to L. Jane McMillan at ljmcmill@stfx.ca.
2011 American Bar Foundation.
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172 LAW & SOCIAL INQUIRY
among the Mikmaq people. The model of justice that prevailsthat of the Canadian nation-stateis patently an instrument of alien domination, an irritating symbol of the discrimination and oppression that characterize the colonial experience, and a constant reminder of the injustices routinely suffered by the Mikmaq. Native resistance to their unjust treatment under the law was galvanized by the wrongful murder conviction of Donald Marshall Jr., a seventeenyear-old Mikmaq, in 1971.1 After eleven years of imprisonment, his exoneration was followed by a nationally publicized Commission of Inquiry into this terrible miscarriage of justice.2 Unsurprisingly, racism was found to be the major contributing factor. Remedies, by way of commission recommendations, included the indigenization of criminal justice in Mikmaq communities, support for restorative justice initiatives, the creation of a native criminal court, and comprehensive stakeholder research and policy development dedicated to the cultural reappropriation of the justice enterprise. This article traces the Mikmaq communitys response to these recommendations, the posturing of the government charged with their implementation, and the dynamic by which each progressive initiative was ultimately compromised or defeated. What remains, after twenty years of shattered expectations, is a satellite provincial court in Eskasoni, Nova Scotias largest Mikmaq reserve, which hears matters biweekly. The administration of the court is undoubtedly well intentioned, and its physical location and relative informality are clearly more accommodating to its native clientele. Nonetheless, there is a pervasive sense that nothing of substance in terms of Mikmaq legal sovereignty has been accomplished, that the legacy of the Marshall Inquiry is little more than a fresh coat of paint on the perennially unamused face of Queen Victoria. Following Sally Engle Merry (1990, 2000), Patricia Ewick and Silbey (1998), Laura Beth Nielsen (2000), and Susan Silbey (2005), legal consciousness is a conceptual and analytical tool used here to portray how people come to think, talk about, and understand the formal and informal laws that dene social relations in everyday life. In the context of Aboriginal legal research, it is useful to consider issues of legal hegemony and the challenges made by Aboriginal peoples to counter it.3 These issues are investigated on the premise that people rely on culturally available narratives of justice to interpret their
1. After an extraordinary life committed to ghting for Mikmaq rights, Donald Marshall Jr. died August 6, 2009, from complications following a double lung transplant in 2003, at the age of fty-ve. I had the tremendous privilege of sharing many years with Donald Marshall; my work is dedicated to honoring his tremendous legacy. 2. The Commission found that the criminal justice system failed him at every turn due in part to the fact that he is Native (Royal Commission on the Donald Marshall, Jr., Prosecution 1989, 1). 3. John Borrows (2002) explores challenges to legal hegemony in his work in the resurgence of Indigenous law.
Colonial Traditions, Co-optations, and Mikmaq Legal Consciousness 173
lives and their relationships.4 Legal consciousness reects the ideas and concerns, the contests and contradictions, produced within and between Mikmaq communities and mainstream society. As a conceptual tool, it provides a framework to interpret various narratives of crisis, conict, solidarity, and resistance that are part of the necessary struggles of cultural reproduction inherent in subjugated peoples who resist domination.5 An examination of Mikmaq local knowledge, based on primary research conducted over eighteen years of consultation with hundreds of participants, helps us to understand how local legal sensibilities are generated, maintained, and changed, and how principles of justice are thereby legitimated or delegitimated throughout the history of colonization.6 The accessibility, relative informality, and familiar setting of the Eskasoni Provincial Court have altered Mikmaq legal consciousness in Eskasoni by reducing the remoteness and alienation of the Canadian legal system, but these factors do not necessarily reduce the perceptions of the court as a colonial imposition or provide sufcient opportunities for community justice.
CONTEXT: THE MARSHALL INQUIRY

Aboriginal justice was a topic of fervent discussion in Nova Scotia in the 1990s as the conviction and life sentence of Marshall for a murder he did not commit culminated in the widely publicized report of the Royal Commission on Donald Marshall, Jr., Prosecution. The report dissected the legal processes leading to Marshalls wrongful conviction and challenged all facets of the provincial justice system. The case brought to light fundamental problems in policing, courts, and the judiciary in Nova Scotia, and raised important questions regarding the legitimacy, authenticity, and efcacy of the Canadian criminal justice system, particularly its treatment of Aboriginal peoples.7
4. Lawrence Rosens (2006) excellent Law as Culture argues that law is integral to culture and culture to law. 5. Both Gavin Smith (1999) and Gerald Sider (1997) have been concerned with how social production is organized and how reproduction becomes transformation by examining the intersection of domination and legitimation. For example, If power, like electricity, ows through resistance, then the contestability of its legitimacy can become crucial to both the reproduction and the transformation of the relationships that domination engenders (viii). I merge the endeavors of Sider (1993) and Sider and Smith (1997) with that of Merry (1990) and Ewick and Silbey (1998) and Kostiner, Nielsen, Fluery-Steiner (2006) in my application of legal consciousness. 6. Clifford Geertz (1983) argued that legal thought is constructive of social realities rather than merely reective of them. 7. The discriminatory treatment and overrepresentation of Aboriginal peoples in the Canadian and American justice systems is addressed by Hon. Alvin Hamilton and Hon. Murray Sinclair (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), and James Waldram (1997), to name a few.
The inquiry concluded that the criminal justice system failed Marshall at virtually every turn, from his arrest and wrongful conviction for murder in 1971, up to and even beyond his acquittal by the Court of Appeal in 1983.8 The report, released in 1989, clearly identied Marshalls Aboriginal identity as a signicant contributing factor in the denial of justice: The tragedy of the failure is compounded by evidence that this miscarriage of justice couldand shouldhave been prevented, or at least corrected quickly, if those involved in the system had carried out their duties in a professional and/or competent manner. That they did not is due, in part at least, to the fact that Donald Marshall Jr. is a Native. (Royal Commission on the Donald Marshall, Jr., Prosecution 1989, 1) Marshall served over eleven years in prison; he escaped once, was recaptured, and endured innumerable periods of solitary connement for protesting his innocence.9 Marshall was repeatedly deemed ineligible for parole because he would 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 traditional governing body of the Mikmaq.11 Due to his lengthy incarceration, Marshall was unable to fulll the primogeniture apprenticeship customarily required to inherit his fathers chiey position upon the elders demise. After the death of Grand Chief Donald Marshall Sr. in 1991, the customary leadership of the Mikmaq Nation passed to Benjamin Sylliboy in a ceremony in July 1992, where Donald Jr. handed over the symbols of his fathers leadership to the new Grand Chief.12
8. Marshall was only seventeen when sentenced to life imprisonment. His acquittal some eleven years later was shockingly mean-spirited and defensive, the appellate court casting blame for the systems shortcomings on Marshall himself. Marshall spoke Mikmaq, could not afford effective legal counsel, and was coerced to confess to a crime he did not commit. His case epitomizes the tragic consequences of racism and systemic discrimination for Aboriginal peoples encountering the Canadian justice system. 9. Personal communications and interviews with Donald Marshall (19912009; in possession of author). 10. Richard Weisman (2004) explores expressions of remorse in cases of wrongful conviction. 11. Janet Chute (1999), Harald Prins (1996), and Daniel Paul (2006) examine the signicance 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 with the Catholic Church dating back to the 1600s (Henderson 1997).
The wrongful conviction and exoneration of Marshall is one of the pivotal events that shape Mikmaq legal consciousness.13 The signicance of his case cannot be underestimated. It forms a negotiating space between past injustices 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 regarding Indigenous peoples within the mainstream legal system. It lends concrete support to abstract notions of racism and inequality and thereby justies recognition of Mikmaq demands for legal self-determination.15 In her submission to the Marshall Inquiry, Dr. Marie Battiste, a Mikmaq academic, argued the dilemma of racism in the criminal justice system is at once a sociological reality with political and legal implications and a psychological one 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 justice processes, no Mikmaq lawyers or legal professionals, no Mikmaq police ofcers, and certainly no Aboriginal justice programs authorized or recognized by the state in Mikmaq territory. Courts did not sit in Mikmaq communities, and policing was fraught with racism, oversurveillance, and the criminalization of Mikmaq livelihoods.17 While disputes were usually managed internally by culturally appropriate means, encounters with the mainstream justice
13. L. Jane McMillan (2003) examines Mikmaq legal consciousness, the impact of colonization on Mikmaq laws, and contemporary responses to colonization using legal consciousness as an analytical tool to delineate Mikmaq perceptions of Canadian and Aboriginal approaches to justice. 14. Being on the east coast of Canada, Mikmaq have had the longest period of contact with newcomers into their territory. The rst British Indian treaties applying to Canada were negotiated with the Mikmaq in the 1700s, predating the Royal Proclamation of 1763; these treaties were long ignored by the British and then Canadian governments as Mikmaq were removed from their lands and alienated from their natural resources (Upton 1979; Harring 1998). 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 a Scalping Proclamation offering that a reward of ten Guineas be granted for every Indian Micmac taken or killed (115). 15. The literature detailing of the failures of the Canadian justice system to deal appropriately with Aboriginal offenders is extensive, including two special volumes of the Royal Commission on Aboriginal Peoples (1996a and 1996b) and numerous public inquiries such as Aboriginal Justice Inquiry of Manitoba (Hon. AC Hamilton and Hon. CM Sinclair 1991) and The Ipperwash Inquiry (Hon. S. Linden 2007). 16. Battiste was writing about the 1989 report by the Royal Commission on the Donald Marshall, Jr., Prosecution. This was her commentary on the Mikmaq Union of Nova Scotia Indians 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 in order to move toward the healing of colonized people in projects of decolonization. 17. See Donald Clairmont (1999), Margaret Beare and Tonita Murray (2007) and particularly Gordon Christies article in that collection.
system were largely met with mistrust and trepidation. The majority of Mikmaq persons interviewed for this project (accused, witnesses, and victims) felt alienated from and tried to avoid the Canadian justice system.18 Fears of being mistreated, misunderstood, and being put in jail were commonplace, as was the sense that the mainstream system does not provide meaningful remedies to Mikmaq problems. That system does not take into account Mikmaq ontology, which incorporated seeking justice through consensual decision making, tangible reparations, mutual forgiveness, and balancing relations. The Canadian approach resulted in dispositions that more often than not had little meaning beyond expression of colonial oppression and did little to repair harmed relations. Many people reported that sentences did not provide effective deterrence, particularly in assaults, disturbances, and Liquor Control Act violations.19 According to research participants, people tend not to report crimes due to community pressure, slow or ineffective police response, and a sense that the community will deal with its own problems.20 The restoration of peace and relationships was largely managed internally, often through kinship networks and sometimes through band council interventions, thus diminishing the efcacy and legitimacy of the courts authority.
RESISTING COLONIAL TRADITIONS

Since 1989, the Marshall Inquiry has provided a strategic platform for a politics of embarrassment.21 Mikmaq political organizations utilized it, with varying success, as a powerful negotiating tool to bring about social change in their communities. The eighty-two recommendations that emerged from the lengthy inquiry gave the Mikmaq tangible ways to frame their discourses of resistance to state legal domination and to arrange their demands for the right to control their own justice processes.22 Monitoring the implementation of
18. From 1991 to the present, I have interviewed and surveyed several hundred Mikmaq people in regard to their perceptions of the Canadian justice system and Indigenous justice practices. 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 Scotia by Mikmaq offenders according to the Mikmaq Legal Support Networks court worker aggregate data. In that same period, court worker aggregate data shows that 961 Mikmaq Legal Support Network clients had charges and were provided 3,979 court services, suggesting that system-generated charges are increasing. 20. See Donald Clairmont and L. Jane McMillan (2001, 2006) for an analysis of perceptions 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 the means by which Indigenous people renegotiate with non-Indigenous new ways of understanding the problem. Politics of embarrassment have encouraged action on the part of the Canadian government. 22. The Inquiry heard from 113 witnesses over 14 months at a cost of about $7 million.
the recommendations provided a means by which the Mikmaq could measure their legal entitlements against those that had been removed from them through colonial and contemporary discriminatory legislation and practices.23 Cultural production increased in Mikmaki24 post-Marshall as valued components, ideas of legal entitlement, and senses of rights were articulated internally in opposition to inappropriate concepts imposed upon them from the dominant society. Community members used the situation to respond to these challenges. Their questions were concerned with how to ensure sustainable mobilization of various groups as they competitively articulated their legal consciousness to generate legitimacy, efcacy, and authenticity for their platforms. These articulations were reactions to the pervasive legal hegemony of mainstream justice and attempts to raise the asymmetrical power ratio between the two juridical systems. I agree with Frank Pommersheim (1995), who argues that the unique legal realities created by tribal resistance to the processes of colonization and assimilation create the conditions for past and present Indigenous juridical practices to synthesize in projects of decolonization, but they also create fault lines in the shifting tectonic plates of tribal sovereignty (100) as people position themselves along a spectrum of difference.25 Of the eighty-two Marshall Inquiry recommendations, the majority identied problems with policing Aboriginal and other visible minorities and with the administration of justice. Eleven dealt directly with proposed changes to Mikmaq community-based justice. These included the recommendations that a community-controlled Native Criminal Court be established as a ve-year pilot project to hear summary conviction offenses committed on reserve and to provide diversion and mediation assistance, court worker services, ne option programs and community service orders, community input in sentencing, and postsentence aftercare. A second signicant recommendation was the establishment of a Native Justice Institute to coordinate community needs and the concerns of the Native Criminal Court, to undertake research on customary law, to determine the extent to which 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 all facets of the justice system, more equitable treatment, greater Aboriginal control over service delivery, recruitment of Aboriginal personnel, cross-cultural sensitivity training for nonnatives, and more emphasis on alternatives to incarceration and crime prevention. Between 1975 and 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 encompasses the Atlantic Provinces, the Gaspe Peninsula, and northern Maine. Today there are thirteen Mikmaq reservations in Nova Scotia that are administered by Indian Act chiefs and band councils under the Department of Indian and Northern Affairs. 25. Pommersheim (1995) and Larry Nesper (2007) examine the evolution of tribal court jurisprudence in the United States. The Law Commission of Canada (2007) provides a collection of essays on Indigenous legal traditions in Canada.
applies to Aboriginal people, to train Native court workers for the Native Criminal Court and conventional court, to consult with the government on justice issues, to provide public legal education, to provide legal aid, and to monitor discriminatory treatment. Other recommendations included a tripartite forum on Native issues to mediate Mikmaqprovincialfederal jurisdictions, an on-call interpreter for Mikmaq witnesses or accused, a Native Criminal Court worker program as an immediate rst step in making the criminal justice system more accessible to Native people, and suggested sittings of provincial courts on reserves.26 The Union of Nova Scotia Indians (UNSI) took the lead in responding to the Marshall Inquiry.27 UNSI is a contemporary political organization operated by the chiefs elected under the Indian Act and by persons appointed to 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 their response to the Marshall recommendations, UNSI argued that the Mikmaq have unique systems of social control that are formulated upon principles of fairness and justice different from mainstream societys. The key question for UNSI is how best to harness Mikmaq concepts of justice in order to design and develop a legitimate, authentic, and effective justice system for Mikmaq communities. Mikmaq participation in the dominant justice system was not seen as adequately addressing the aspirations of their communities. Indeed, indigenization of mainstream justice may only facilitate an over involvement of the Canadian justice system in Aboriginal lives.29 The Mikmaq were not demanding a wholesale separate justice system, but they were arguing for control over procedures and processes, and the opportunity to develop new
26. Other recommendations endorsed legal aid funding to assign lawyers with a native specialization and a Native social worker to act as a liaison between community members and legal 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 of a modicum of control postconviction to the community by way of Aboriginal probation ofcers and 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 document that reveals policy that a government intends to pass as law), which proposed wholesale assimilation of Canadas Aboriginal peoples into mainstream society through the dissolution of 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 benets to Aboriginal peoples. Across Canada, many Aboriginal communities formed political organizations such as UNSI to challenge 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 that translates as seeking consensus. 28. Other inuential political organizations include the Confederacy of Mainland Mikmaq, Nova Scotia Native Womens Association, and Native Council of Nova Scotia. 29. Susan Haslip (2002) argues that the Canadian government problematically favors indigenization over the creation of separate justice systems that could better reect the cultural distinctiveness of Indigenous communities. Also see Robert Depew (1996) and Paul Havemann (1988).
practices based on their ontologies.30 At the time, cooperation with, rather than wholesale rejection of, the Canadian criminal justice was seen as necessary. 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, you would be denied justice. The Mikmaq sought alternatives; their assertions were framed as rights discourses, and people began looking to the preconfederation Peace and Friendship Treaties to support their claims to build the capacity to manage their own justice processes.31 As per the Marshall Inquiry recommendations, a tripartite forum was created in 1991 to provide a mechanism to jointly discuss, negotiate, and resolve issues of concern between the Mikmaq of Nova Scotia and the federal and provincial governments. Initially uncertainty, mistrust, infrequent meetings, and hostility about asymmetrical power arrangements racked the forum. These arrangements were further complicated by classic federal-provincial jurisdictional disputes that facilitated the avoidance of responsibility.32 At rst, Mikmaq inclusion was largely symbolic rather than substantive.33 During this process, the number of parties that wanted to address the problem of justice in Mikmaq country expanded to include every major political, social, and cultural organization, representing both on- and off-reserve members. Each had its own ideas, its own political mandates, and justications about who should run Mikmaq justice and how it should be done. Each organization saw the inquirys recommendations as potential legitimation for desperately needed job creation and income initiatives. Divisions quickly emerged around whether or not Indian Actelected chiefs and councils ought to be stakeholders or whether the traditional political organization of the 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 legal system to suggest how their conceptualization and practices of sovereignty might repose on a deeply 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 conicts marking the early days of the tripartite forum. Today the tripartite forum is a productive, collaborative organization tackling jurisdictional issues and development within seven working committees, addressing culture and heritage, economic development, education, health, justice, social development, and sport and recreation. 33. Dale Turner (2006) convincingly argues that meaningful participation generates epistemological and practical problems in reconciling and accommodating indigenous forms of knowledge with Western European philosophy, particularly when the legacy of colonialism and the states unilateral claim of sovereignty are not adequately addressed, as is often the case in Canada. 34. The Mikmaq Sante Mawiomi, or Grand Council, is a precontact sociopolitical organization that managed the affairs of the Mikmaq nation, determined trade, war, resource regulation and dispute management. Through colonization, the Grand Council was reduced to a symbolic spiritual organization with strong ties to the Catholic Church. Recently, sectors of the Mikmaq nation are working to reinvigorate the political and legal legitimacy of the Grand
problems of who rightly held responsibility and control over justice led to irreconcilable debates and proved to be a signicant stumbling block to implementing Marshall recommendations. Indian Actelected chiefs enjoy enormous authority in Mikmaq communities. Among other powers, they control the dispersal of transfer funds and benets, allocate housing and jobs, inuence the provision of health care and education, and negotiate status. They also determine where on the agenda justice should be placed. This power is signicantly ltered through federal and provincial policies and mandates that often contradict Aboriginal community needs, capacities, and empowerment. Competition for scarce resources is the bane of every Aboriginal program and, in the case of the Marshall recommendations, exacerbated fragile relations between organizations 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 order to avoid the costs associated with committing to Mikmaq control of justice. The volatile issue of status and the persistent questions of who are the beneciaries of Aboriginal rights and title further complicated these contests and detracted from reaching consensus in the construction of authentic and legitimate Mikmaq justice practices.
CHALLENGING AND CONTAINING CO-OPTION

Visions of justice were varied. Some argued for a Mikmaq justice system that mirrored the Canadian system. Others called for a codication of customary law, a by-product of colonialism. The idea of setting up a justice system that was neutral, bias free, offender focused, and remote from leadership contradicted much of the early law ways research that suggested Mikmaq justice relied on the intervention and mediation of well-respected leadership and their spiritual helpers. Traditionally, Mikmaq justice was conciliatory and holistically embedded in everyday interactionstalking it out, spiritual sanctions, elder knowledge and kinship networks, and restitution were used to restore balance or improve harmed relations. The impacts of the history of colonization, informed by the experiences of residential schools, economic marginalization, systemic racism, class stratication, altered gender and generational roles, and criminalization of Mikmaq ways of life, all inuence how people talk about, perceive, and experience 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 political structures, namely Indian Act Chiefs and Councils. 35. I follow the important work of John Conley and William OBarr (1998, 1990), Mindie Lazarus-Black and Susan Hirsch (1994), John and Jean Comaroff (1997), Merry (1990), and
contemporary framework will help fulll concerns of cultural appropriateness and fairness and are presented in opposition to the negative impacts of colonization and assimilative practices of the dominant society. Yet, articulating what are the customary practices and how they are made meaningful todayand who decidesare complex and highly contested. Critical questions of what Mikmaq justice is, how it works, and why, are repeatedly asked in a variety of shifting sociopolitical contexts over time, ranging from ideals of precontact governance to colonial treaty making to contemporary rights to control resource management and regulation. The central goals of Mikmaq justice aim to restore individual and community relations to peace and balance altered through wrongdoings. Wrongdoings occur in the realm of peacemaking and moral community rather than the law. The processes of making peace and restoring balance are instigated by transgressions of customary law. Mikmaq moral systems include customary procedures to repair imbalances in the social fabric, to maintain reciprocity, and to ensure obligations are fullled in the maintenance of relations between the human and other-than-human worlds. The restoration of relations lies in kin and community networks informed by value systems that foreground respect, sharing, honor, healing, honesty, and forgiveness, not criminal codes. All citizens, and especially the elders, have to work hard and constantly to ensure peace and good governance in the face of all the disruptions and contradictions of daily life. A core concept in Mikmaq dispute management is apiqsigtoagen, which translates as mutual forgiveness. It is contrary to any adversarial concepts or approaches. To achieve apiqsigtoagen, one has to get to the heart of the matter in the Mikmaq way, which includes an explication of the conict, a calming-down period, a rethinking of behaviors, and a reconnecting through forgiving each other. It is a collective process, in which people are concerned with helping each other become grateful, nd courage, and reintegrate wrongdoers into the community through teachings and talking it out, usually through the counsel of respected elders. It is a exible, oral process, not constrained by time, precedent, or written codes of conduct. Avoidance or nonconfrontation is a common feature of Mikmaq dispute management. The parties to a dispute typically avoid interaction until such time as ongoing relations require attention to the matter, or the cause of the conict has dissipated (calming-down period) and life continues. Intervention tends to occur only when the conict disrupts wider community operations, as there is a pervasive ethic of noninterference for members outside of extended kinship networks where the locus of justice resides. Cosmological intervention is part 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 the experiences of people seeking redress and to inform my analysis of their discourses within the colonial contexts in which they are articulated.
oft-expressed sentiment in the context of disputes, and people rely on spiritual sanctions to sort out problems. In generating alternative justice programs to accommodate these concepts, there emerge competing discourses36 reecting questions of legitimacy, authenticity, and efcacy of practices identied as Mikmaq, both within Mikmaq communities and between Aboriginal communities and mainstream society, and ultimately revealed in the hegemony of Canadian law in Mikmaq consciousness. The Mikmaq have two main goals: to ensure better treatment of their people as they encounter mainstream justice and to create their own system of justice in order to deal meaningfully with problems in their territories.37 Following the release of the Marshall Inquiry report, a number of justice initiatives were implemented in Mikmaq communities, ranging from the indigenization of mainstream programs to attempts at codifying customary law to programs of justice as healing. Initiatives such as Unamaki Tribal Police, Community Legal Issues Facilitators, the Shubenacadie Diversion project, and the Mikmaq Justice Institute were ambitious but conservative projects that have all ultimately failed to achieve the main goals of Mikmaq justice because they were completely co-opted by mainstream justice and trapped in paternalistic duciary relationships. The Mikmaq had little room for innovation against the behemoth of the Canadian justice system. Marshall Inquiry recommendation number twenty-one, Native Justice Institute, held the greatest promise of authentically accommodating Mikmaq justice concepts embedded in language, kinship networks, mutual forgiveness, and spiritual practices. From this recommendation, an umbrella organization known as the Mikmaq Justice Institute was formed. Its mandate was to research, design, and implement community-based Mikmaq justice processes. It was felt to be the forerunner of Mikmaq self-determination and ideally legitimized Mikmaq law ways against the inauthentic and ineffective Canadian system. Due to a lack of government support and imagination, it became a disappointingly understaffed, underresourced, gloried court worker 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 analytical tool to understand the legal consciousness of the subjects of their research. 37. Union of Nova Scotia Indians response paper to the Royal Commission on the Donald Marshall, Jr., Prosecution; n.d., private archives. 38. The court worker program assists Aboriginal accused with understanding their legal rights, options, and responsibilities when appearing before criminal courts. It does not provide assistance to those appearing before family and civil courts, even though similar communication problems and cultural sensitivity issues are also at stake. It is a national justice service program available 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 courts and seeking out people who need help, while others are accessible to clients through a local ofce by appointment or drop-in. Generally, the workers explain court procedures, charges, and
contradictory policy, and disempowered by the morass of bureaucracy that they had to navigate, the limited resources allocated to the justice institute were quickly spent. Unable to focus on the research and design aspects of Mikmaq justice, the Mikmaq Justice Institute had little incentive to initiate and assess the legal consciousness of the Mikmaq, a step essential to the foundation and evolution of legitimizing alternative justice options. The provincial and federal governments mandates and budgets were too restrictive and conservative and raised contentious concerns over human rights violations in the creation of a pluralistic system. In the end, the states limitations on the types of disputes permitted in the restorative process crippled the capacity of Mikmaq justice to meet the changing needs and demands 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 imported from other communities. The government measured success and efcacy by the number of clients and recidivism rates. These metrics simply ignored the efforts of the court workers as they tried to help their communities navigate the mainstream system while simultaneously trying to generate a legitimate customary system. The states band-aid measures woefully failed to answer Mikmaq calls to fully honor the Marshall Inquiry recommendations. As with many Aboriginal social service programs, complicated reporting compliance procedures and the constant pursuit to secure funding absorbed opportunities for innovation and expression of indigeneity on the ground.39 The Mikmaq Justice Institute had to close its doors within three years because of challenges to its identity from the mainstream system, an overwhelming caseload, and community demands that it act beyond its capacity as well as ght for treaty and Aboriginal rights in all forums.40 I agree with Bruce G. Miller (2000) and Wayne Warry (1998) that contemporary Aboriginal justice narratives are largely outward looking, primarily directed to managing relations with the dominant society. Due to state refusal to fully commit to supporting a Mikmaq justice system, the negotiations were structured in ways that forced the Mikmaq to focus on purported periods of primordial harmony or on limiting and articial us versus them dichotomies in the hope of legitimating their demands against the hegemony
the consequences of the charges to their clients and their support networks. Ideally court workers help clients acquire legal representation and act as a referral service for translation and other social programs. 39. Craig Proulx (2003, 11) examines the creation of Aboriginal justice programs in an urban context and considers the colonial consequences of the appropriation by non-Aboriginal people of Aboriginal peoples power to dene themselves and to act as self-determining agents. 40. Donald Clairmont and L. Jane McMillan (2001) conducted the forensic evaluation of the Mikmaq Justice Institute, where we argued that while the political-legal environment in Canada had become more favorable to change, there was modest implication from the point of view of Aboriginal control and that the Marshall recommendations, as implemented, suggested an integrationist ethos.
of the state.41 The need to advance a united front justifying distinctive Mikmaq justice in the face of divide-and-conquer strategies crippled Mikmaq capacity to fully consider issues of internal power and diversity. The state needed to justify any calls for pluralism to its largely conservative electorate, and it did little to support the idea that Mikmaq justice is different and that there is more than one law for all. Unfettered community-based justice processes legitimized by the state did not emerge in Mikmaki at this time. A strong sense of being set up to fail by the state permeated an atmosphere already heavy with mistrust and despair. The mainstream justice system became further entrenched in Mikmaq legal consciousness as an obstacle to, rather than a vehicle of, justice. Valuable energy and resources were dedicated to this particular battle, leaving little energy to devote to internal identity negotiations and the cultural reinvigoration of justice practices that respected the diversity of needs and expectations. A central challenge for justice design in Mikmaq country was how to accommodate those who totally rejected the states justice system, while protecting those who did not have condence in Mikmaq law ways. Community condence in Mikmaq justice weakened through accusations of political interference, nepotism, and incompetence. In order to establish meaningful, culturally employable, localized justice practices, it is necessary to account for internal diversity in terms of cultural interpretation and its application toward juridical expectations.42 The problem of establishing independent Aboriginal service organizations plagued the implementation of the Marshall recommendations. The complexity of sorting out sources of authority is indicative of the challenge of creating systems that meet external stipulations at the cost of internal cultural infrastructure and organizational realities. That the Mikmaq were not able to develop an alternative, stand-alone, Mikmaq justice program was a signicant disappointment to the many people who contributed so much to the dream. What remained was the recommendation that the Chief Judge of the Provincial Court take steps to establish regular sittings of the Provincial Courts on Nova Scotia Reserves (Royal Commission 1989, 29) and to assist Mikmaq people as they encountered the Canadian criminal justice system.43
41. See Emma LaRocques (1997) powerful work, where she cautions us to ensure victims interests are not dismissed or silenced in the name of restoring harmony in Aboriginal communities. 42. Patricia Monture (1999), Ross G. Green (1998), Jane Dickson-Gilmore and Carol La Prairie (2005), and Catherine Bell and David Kahane (2004) all acknowledge that failure to account for diversity often delegitimizes community-based processes and interrupts their efcacy, 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 into the 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 on Mikmaq justice concepts, and the cultural relevance of their practices enabled it to survive
BINGO HALL JUSTICE: THE ESKASONI PROVINCIAL 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 Lakes about 50 km (31 miles) from Sydney, the third largest city in the province. According to Statistics Canada (2008), in 2006 the total population was 2,952 people living in 834 dwellings on a land area of 36.13 square km (14 square 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 youth population. Only 140 people are over the age of 60, suggesting a life expectancy well below the national average of 80.2 years (Statistics Canada 2008).45 A signicant majority of the population, 83.3 percent, identies Mikmaq as their mother tongue and 65.2 percent speak Mikmaq in the home. As of 2006, Statistics Canada reported that the labor force participation rate was 37.5 percent, and the unemployment rate was 28 percent. Among the Mikmaq Nation, Eskasoni is known as a community that has held on to its culture as evidenced by their utilization of traditional hunting and shing territories, the presence of large kinship networks, a high level of language retention, an ongoing Grand Council membership, and the regularity of cultural and ceremonial practices. The provincial court began sitting in Eskasoni in 1996. Eskasoni is the only community to have regular sittings of a provincial court, even though other Mikmaq communities, such as Indian Brook,46 have requested similar courts. For the rst eleven years, Eskasoni Provincial Court was located in the basement of the Mikmaw Lodge Treatment Center, a drug and alcohol rehabilitation facility. In a room sometimes used for talking circles, workshops, and bingo games, temporary partitions maintained a level of privacy between clients of the treatment center and the court proceedings. Storage rooms 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 in a separate article. 44. Statistic Canada numbers tend to be lower that the actual population due to census taking challenges in non-English speaking, rural communities. Anecdotally the real population is closer to four thousand based on Mikmaq Council conguration numbers. Band lists kept by the band council include members who live on and off reserve and indicate a total band population 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 sit at 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 Shubenacadie Indian Residential School that operated from 1929 to 1967, and which hundreds of Mikmaq children were forced to attend (Knockwood 1992).
Denny Memorial Cultural Centre,47 where bingo games and community gatherings are regularly held.48 The walls of the large auditorium are painted with Mikmaq motifs and an eight-pointed star is inlaid in the tile ooring. In the front foyer is a large display of Mikmaq baskets and porcupine quillwork.49 On the walls are portraits of respected cultural leaders. The scents of sweet grass and sage, two of the sacred ingredients used in Mikmaq cleansing rituals, permeate the air. The large, open hall, with its bad acoustics, presents obstacles to the conduct of a regular provincial court. Desks are set up for the judge and the court staff, and chairs are arranged for the participants and onlookers. Security remains a concern for the court staff and victims. With the exception of the location, the court operates in the usual manner. Eagle feathers or other indigenous symbols of truth-telling are not available; hence a bible is used.50 The judge wears his judicial robes, the lawyers and court workers wear business attire, the ofcers wear their police uniforms, and the community members tend to come as they are, in suits and dresses or shing boots and hunting jackets. Interestingly, a male court worker for Eskasoni, who is a legal systemoriented actor wanting to obtain a law degree, calls for the construction of a Canadian-style courthouse: If you build a courthouse there would be appropriate space for everyone, it would add to the legitimacy of it; I would say it would increase the prole.51 The late Grand Keptin of the Sante Mawiomi (Grand Council) shared the sentiment of the importance of having a specialized space for Mikmaq justice. He thought that a Mikmaq Hall of Justice would be an important symbol of the Mikmaq Nations independence and authority and advocated for its creation throughout his life. The court generally sits biweekly; however, additional sittings are increasingly common. The presiding judge is not of the community; he ordinarily sits in Sydney and services Eskasoni as a satellite court. The rst judge retired after two years. His replacement has remained on the Eskasoni bench 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 her large family traveled across Mikmaki teaching Mikmaq songs and dance and the value systems associated with their performance. After the death of this respected elder, the Eskasoni community hall was renamed in her honor. 48. In February and March 2009, the Sarah Denny Memorial Cultural Centre was the location of a makeshift crisis center set up to assist the community in the aftermath of six suicides 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 perceptions on having an eagle feather available for people speaking to the court; however, the researchers decided the appropriate protocol was complicated and controversial. It was determined that the eagle feather was too sacred an object, and its use in a courtroom would be profane. Some Ontario provincial courts, such as Old City Hall and College Park, sorted through the protocol challenges and now have eagle feathers available. 51. February 13, 2008. Eskasoni, Nova Scotia. McMillan interview transcript.
prosecutors in Nova Scotia and very few Aboriginal criminal defense, family, or civil litigation lawyers. Non-Aboriginal legal aid lawyers represent 95 percent of the people who appear in Eskasoni court. There is only one Aboriginal probation ofcer for the entire province; she works primarily with the Eskasoni court, but resides in Membertou, a Mikmaq community adjacent to Sydney. The deputy sheriff is Mikmaq, as are the court workers and the translator who service the court. There have been least seven different court workers in the past ten years. They are trained and employed by the Mikmaq Legal Support Network, a program that assists offenders as they encounter the mainstream system and offers a customary law program consisting of justice circles designed to craft community service orders and to help manage disputes that are diverted from the court. The court workers in Eskasoni are uent Mikmaq speakers who see their roles as providing guidance to offenders through the justice system. At present, Mikmaq court workers are only available for criminal court, but their services are direly needed in family court, which sits in Sydney. In May 2008, Eskasoni launched a Mikmaq Victim Services Program in partnership with the provincial victim service agency to assist Aboriginal crime victims as they proceed through the mainstream court system.52 The Aboriginal victims service ofcer is a Mikmaq resident of Eskasoni, and she attends court regularly to assist her clients. A key feature of the court is its accessibility in terms of location and court staff. Formerly, Eskasoni residents traveled to a Provincial Court in Sydney, some fty kilometers (31 miles) away. Those without vehicles or means to hire transportation found it difcult to attend Sydney Court. The relocation of the court to the community decreased the number of bench warrants issued for failure to appear charges. Court day was originally every other Thursday, but it was switched to Tuesdays to avoid coinciding with the day after welfare Wednesday when, according to one court ofcial, a lot of wildness went on,53 resulting in a number of failures to appear. In Eskasoni, the court administrator does not have an ofce or even a partition separating her from the public. People approach her on recess to ask for information and to pay nes, thus eliminating the cost of travel to Sydney. The administrator knows everyone by name and often admonishes those who are repeaters. The atmosphere is comparatively informal.
52. This important development is currently under analysis. Thus far, the number of victim impact statements received by the courts has increased according to the Victims Services Ofce, but statistical data is not yet available. The new victims services program may work to correct the imbalance in the adversarial system and offer opportunities for talking it out inclusion and healing, but in its current state, it is an indigenization of a mainstream program and may enhance rather than mitigate adversarialism. 53. February 6, 2008. Sydney, Nova Scotia. McMillan interview transcript.
An additional comfort factor is the language. Eskasoni is a community with high language retention as Mikmaq is spoken in most of the homes and taught in the local school. The Marshall recommendations generated the development of the Mikmaq translation service. Before the judge enters the court, everyone is speaking Mikmaq, and people are very animated. The Mikmaq deputy sheriff of the court sits with the accused and those in custody and speaks with them in Mikmaq, often joking and using humor as a way to put people at ease. This is characteristic of Mikmaq culture, as joking, teasing, and laughter are central features of interaction, even when faced with serious 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 do not have vehicles, they have a hard time getting to Sydney Court. Eskasoni Court is not that formal or strict. When you walk in Sydney Court you can hear a pin drop. When you walk in Eskasoni Court, it is like a bingo hall. It is the personality of the culture, I guess. The judge knows. People do whisper. But people dont whisper in Sydney Court because 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 the members of this community.55 While court is in session, the primary language is English; the judge will not allow court to proceed if the interpreter is not available. However, it is the legal language of the courts that is translated into Mikmaq. Mikmaq justice concepts are not translated or adopted by the court. In regard to legal language and understanding, the presiding judge stated: I am always concerned that they understand what exactly is going on. I dont know that they have great appreciation for what it is. I think most of them know why they are in court, but as far as they are concerned they think if you are here in court you could go to jail. That is the reality they associate with and they know, I think most of them know, that they are not going to go to jail unless it was pretty serious, that is always a consequence.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 introduced himself as The Bingo Hall judge; I am ever grateful for the time he shared with me during our interviews for this research. Two interviews were conducted with this judge, one in 2004 (informal) and one in 2008 (formal). 56. February 6, 2008. Sydney, Nova Scotia. McMillan interview transcript.
Moreover, the judge goes through his docket in manner that allows offenders the 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 police will see them on the street and say, Hey there is a warrant for your arrest. Now you can have it one of two ways; I can go back to the station and get the warrant and take you to Sydney or are you going to show up in court Tuesday morning in Eskasoni? Well of those, 95 percent show up because they are afraid that they are going to get arrested. So there is a different dynamic that works there. If they had all those warrants and ran out right away and executed them all, then they would have all kinds of people plugging up the court system with being charged with failure to appear. 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 they going? So they just add it on. That is where perhaps it is a dynamic that works differently with the police and the courts too. They are not going to be there (in court) and that is all there is to it, so go with it. They would only pick up on a regular basis if there is a warrant arrest for somebody who failed to appear for a serious charge. But if it is theft of a guys chainsaw or something like that, well, we got the chainsaw, it is sitting at the police station, so whats the point of hauling that guy in and having him in custody, plus all the paper work, plus all the tying up of the police ofcer, driving him into Sydney, that sort of thing?57 He also demonstrates an appreciation for differences in cultural conceptions of 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. Court is supposed to start at 10 a.m. I could almost absolutely say it has never once started on time. There is no point to it. They all joke about it themselves: 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 their responses, with several people indicating that humor was a major difference between the community court and the formal courts in town (Sydney). A male respondent who had attended the court found the relaxed atmosphere more conducive to repairing harmed relations, something he has not witnessed in his many visits to Sydney Court.
57. February 6, 2008. Sydney, Nova Scotia. McMillan interview transcript. 58. Ibid.
Eskasoni Court is less intimidating. It is a different atmosphere. I was there twice. You can see people making amends to each other right in the court. In the city court you are afraid the cops are watching you, and you 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 sheriff or two there. A lot of the people have been in the rehab [Mikmaw Lodge, the original site of the courtroom]. It is a familiar place, and there is a kitchen there, and it does not feel like you are in a box.59 Despite these modest accommodations, a legal aid lawyer who formerly worked at the court summarizes the reality of the Eskasoni Court: It is a white judge, and a white prosecutor, and white legal aid lawyers, so the language barriers are there.60 Translation is an issue in any court where Mikmaq 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 system to the reserve, and it is not what I think was envisioned by the Marshall inquiry in terms of actual Aboriginal justice.61
MIKMAQ LEGAL CONSCIOUSNESS AND THE ESKASONI PROVINCIAL COURT

Eskasoni is currently policed by the Royal Canadian Mounted Police (RCMP),62 which has a local detachment with a lock-up situated in the middle of the community.63 According to a local Mikmaq ofcer who has worked in the community all of his policing career, the only change he has seen in the last fteen 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 signicantly (over 30 percent) from 2002 to 2004, and leveled off again since then. Property offenses (e.g., theft, breaking and entering) and other criminal code offenses (e.g., disturbing the peace, bail violations), have varied somewhat with no discernible pattern number-wise, as have liquor violations. The 2005 Eskasoni RCMP occurrence statistics indicated youth offending was primarily violation of provincial statutes (liquor and trespassing violations) and of other criminal code (over 90 percent involved disturbing or breaking the peace); overwhelmingly, these offenses did not result in charges being laid (basically one charge laid per 7.5 not charged). There were comparatively 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 did not result in charges being laid (basically one charge laid per 3 not charged). The Eskasoni RCMP data did not allow for an assessment of trends in youth offending (Clairmont and McMillan 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. 64. February 13, 2008. Eskasoni, Nova Scotia. McMillan interview transcript.
After several years of a stable and declining crime rate between 2002 and 2005, in 2007 and 2008 there was a marked increase in the number of liquor control act violations, which shot up from 217 in 2007 to 473 in 2008. Bail violations 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 numbers rebounded upward to over 100. The total number of RCMP case les opened in Eskasoni in 2008 were 3,362, up from 2,579 the year before with disturbances, liquor control act violations, and assaults accounting for the majority of police crime statistic information.65 This same ofcer believes the community is generally more accepting of the court but that there is still a lot of resistance: people are charged but they do not come to court, nor do the witnesses. In part, as he explains, this is because many parties resolve their conicts before they get to court. As he puts it, They are ghting one day but the next day they are walking together; they already have apiqsigtoagen, they already had forgiveness. Some people do not show up because they are intimidated by the system: People do not take justice very well here; the legal jargon of the judge and the lawyers is alienating for the people. The police ofcer points out that the court system does not generate healing; there is no reintegration process. That is why there are so many repeat offenders: there is no help being offered, no healing for themselves. The community is not involved. You do not have to face each other. The court 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 to addressing the issue of responsibility. Court-delivered remedies remove responsibility from the community and interrupt the opportunities for restoring the balance disrupted by the harm done. The crown prosecutor of the Eskasoni Court questions the efcacy and legitimacy of the court for Eskasoni residents: I have been prosecuting there for the last ve or six years. It is interesting that there is very little that goes by way of a trial. I attribute it to the fact that 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 around the matter has been settled, hurt feelings mended, apologies made. No one seems to care about the trial. It could also be, though, that no one wants to show that they care. They may wish to avoid the responsibility of having jailed or punished a member of their community. In their justice, everyone has some responsibility, so it is likely difcult to prosecute if the victim feels they are partly responsible and dont wish to be seen as denying their own responsibility. Maybe two or three trials go ahead per year.66
65. Detailed crime statistic reports for 2007, 2008, and 2009 ( January to April) provided by the Eskasoni RCMP detachment. 66. April 1, 2009. Eskasoni, Nova Scotia. McMillan interview transcript.
The threat of jail is a limited deterrent. Removing people from the community and from facing their responsibilities in the reparation of wronged relations does not usually facilitate the reciprocal nature of apiqsigtoagen. In focus 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, three meals a day, and a warm bed. The court workers have the difcult job of translating the authenticity of the Canadian justice system for their Mikmaq clients. A female court worker for Eskasoni notes as follows: The cultural barrier is still quite strong. A lot of them are not guilty and they just want to plead guilty. Some know the whole process already because they are going back. Some dont have respect; they dont care about anything. They say, I will just go to jail, or I will not pay my nes. They will not show up for court and they dont care, they go to correctional. Some are really embarrassed by what the judge has to say after sentencing, but there are some people who just do not care.67 The court has been in operation for over a decade. As people become familiar with it, there is a sense that some are seen as able to manipulate the court toward favorable legal outcomes without providing any resolution to the conict that put them there in the rst 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 loopholes in programs to try and control the outcomes, thus causing credibility and efcacy concerns. A middle-aged, educated, unemployed, Native rights activist shared her thoughts on the efcacy 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 a couple of times, and it is becoming a joke almost because we are community members, and we hear the stories the lawyers are presenting to the judge as defense, and I hear these stories, and the witnesses stories, and you know they are outright blatant lies because 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 critiques of restorative justice and unpack the rhetoric that produce false dichotomies between restorative and retributive justice to reveal the complexity of power dynamics at play within justice as healing or right-relations discourses.
Q: A:
Q: A: Q: A: Q: A:
it is a bunch of crap from the lawyer, but as a community member I have no say. So, how can you have faith in a system that is so easily manipulated? Are a lot of people using that court? Usually people with peace bonds or impaired driving, assaults, B and Es [breaking and entering] and you see they will get a slap on the wrist most of the time. And then how are we supposed to nd closure in that? My neighbor raped my other neighbor and he gets a slap on the wrist, and I am supposed to feel good about that? I am really disillusioned with that, only because the players are not of this community. The judge, the lawyers, the defense, they are not of this community, so it is just a foreign system. It just saves on Indian people from traveling to Sydney. They are being prosecuted, or defended, or whatever, in a familiar setting. Are they getting less severe punishment here then they are in Sydney? 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? What could be done to resolve that? Getting our own people in there. So having Mikmaq lawyers and judges? 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 is going on here. To be able to understand the context of what we are living here, because it is very different. What is going on here, and how 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 of colonization and its impact on Mikmaq culture. The Canadian justice system embodies colonial relations. The colonization of Mikmaq legal consciousness characterizes their juridical discourses and practices and has since become hegemonic. This is revealed in powerful oppositional discourses of justice as entitlement, justice is just us, and justice as healing and through the work of the Mikmaq Legal Support Network to reproduce customary concepts like apiqsigtoagen. Mikmaq resistance to colonization is signied large in presentday legal consciousness because these events are very much part of Mikmaq identity, lived experiences, as well as shared and contested histories. The eventsframe how Mikmaq people negotiate, enact, and legitimate individual
69. March 28, 2000. Eskasoni, Nova Scotia. McMillan interview transcript.
and collective understandings of themselves and others. The expressions of legal consciousness are part of the process of cultural revitalization and cultural production, because emerging discourses that capture the past and yet are crafted as resistance, rights, and healing dialogues, facilitates their construction. Where the Canadian justice system fails, Mikmaq justice is called upon to answer those failures. These productions are framed as oppositional discourses to domination and are highly politicized. Legal consciousness is embedded in the practical construction of daily life. It is part of the process whereby the person is continually constituted by external sociocultural forms. Legal consciousness is shaped by personal and collective experience, through competing discourses regarding the legitimacy, authenticity, and efcacy of practices identied as Mikmaq, both within Mikmaq communities and between Aboriginal communities and mainstream society. Some people identify with the authority of the court while others identify with the legitimacy of Mikmaq law ways. Legal consciousness, while culturally constituted, also culturally constitutes. Legal consciousness is historically situated, uid, dynamic, and often contested within and between societies as individual and collectivities give meanings to their culturally informed experiences and beliefs. Forms and expressions of legal consciousness are sources of solidarity, crisis, conict, and contradiction, as the Mikmaq identify their law ways both as opposition to mainstream justice and within processes of decolonization. The examples used here demonstrate forms of resistance and co-optation. Mikmaq law ways and those that practice them challenge the structures of hierarchies of authority that have long been sustained by the hegemony of mainstream justice: the power of the judge and the adversarial nature of prosecution. Courts demand a social interaction predicated on deference, respect, constrained emotions, and a sense of seriousness that does not allow much room for humor and, perhaps most important, relies on truth telling. That Mikmaq persons sometimes lie about the problems that brought them to court is no different than other persons going to court wanting to protect 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 court with the power of knowledge, of exclusive truth, held by community members, reversing or refusing to acknowledge the lines of authority held by the court.70 Even though they may be in crisis and conict 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. There is a normative consensus that Mikmaq law ways are better suited to Mikmaq problems, but the hegemony of the Canadian legal system presents signicant challenges to their expression and application in daily life.
court in the community provides a consciousness of opportunity to enact resistance by choosing to participate, or not. Perhaps bolstered by the familiar surroundings, peer support, and in knowing that failure to nd justice in this court 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, reduces co-optation. Ultimately, and sadly, these processes legitimate acts that may lead to further injustices. Opponents in court may shift from being community members in a dispute against each other toward joining forces against the system. Because this system so conspicuously communicates the denitions and labels of domination, court experiences reify the positions of self and other within the Mikmaq community, creating conditions for conscious resistance, 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 the court to remedy their problems or to help them avoid facing their community and cultural responsibilities. When considering the option of a sentencing circle, the Eskasoni Court judge recounts the following exchange with the crown and an offender: I will quote you exactly how I put it to the last one who had a serious offense. The guy said, I would rather take my chances with the white mans justice, and by that he did not mean that he is going to get off easier; I think he felt there is too much personal embarrassment, too much shame within the community environment. He did not want to have 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 door with nothing? He said, No, he just could not handle all of the baggage that comes with the sentencing circle.71 Perhaps it is a result of internal colonization that Eskasoni residents do not see Mikmaq justice alternatives as more legitimate than court, particularly given the emphasis on Mikmaq values and practices within the community at large. A surprising number of research participants indicated that that procedural conicts could be resolved simply if the operation of the Canadian justice system was indigenized, rather than changing the process itself.72 Indigenization schemes touted in the Marshall recommendations have yet to materialize, even though twenty years have passed since the report was released. In fact, there is an increasing voice in Mikmaq communities that 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 community to take responsibility for justice using ancestral traditions and values in an exercise of self-determination.
with afrmative action; however, Canadas behavior does not favor indigenization of Aboriginal justice, as it appears rather that it simply wants to co-opt the community to do part of the states routine grunt work. Some people argue such co-optation is big step backward from the autonomous justice envisioned by those seeking self-determination and demanding overdue restitution of dignity in a context of sovereignty. The Mikmaq Legal Support Network (MLSN) is working to expand its mandate beyond a criminal law, offender-based programming to move toward an inclusive, holistic program utilizing the concepts of healing and of apiqsigtoagen in their customary law approaches to family, civil, and resource regulation. Such expansion holds great promises for cultural sustainability, productivity, and perhaps freedom from 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 community members. The ways that people talk about court indicate that it is far from a perfect solution to the problem of justice in Mikmaq communities. Of all the Marshall Inquiry recommendations, it is perhaps the most conventional and reects more the mainstream legal consciousness than those of Mikmaki.73 Clearly Eskasoni Court does not intentionally accommodate Indigenous dispute management practices, nor does it oblige the Mikmaq legal consciousness that desires the construction and expression of Indigenous legal regimes to govern Indigenous knowledge and experience (see Shawana 2007). The tensions between legal ontologies remain intact. Internal colonization counters the efcacy of both mainstream and Mikmaq approaches to justice, and the consequences are high for the legitimacy and authenticity of Mikmaq justice processes. After decades of state intervention, Indigenous communities accustomed to state control rely more and more on the state; conversely, the state wants to nd ways to shift the costs of this burden back onto the local communities. Eskasoni Court provides a modest venue for exploring the cultural repertoire of law and reveals the heterogeneous, multidimensional, and contradictory nature of the challenges of employing Indigenous values of justice in a world dominated by mainstream legal consciousness.
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Law & Social Inquiry

Journal of the American Bar Foundation

Colonial Traditions, Co-optations, and Mikmaq Legal Consciousness

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Colonial Traditions, Co-optations, and Mikmaq Legal Consciousness 173

CONTEXT: THE MARSHALL INQUIRY

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RESISTING COLONIAL TRADITIONS

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CHALLENGING AND CONTAINING CO-OPTION

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BINGO HALL JUSTICE: THE ESKASONI PROVINCIAL COURT

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MIKMAQ LEGAL CONSCIOUSNESS AND THE ESKASONI PROVINCIAL COURT

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