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October 2020
Living Treaties
by Rebecca Thomas


They said they were irrelevant,
not worth the paper they were written on.
They were simply pawns to bond us to the monarchy,
to control the anarchy,
to establish a patriarchy and take away our unceded lands,
confine us to bands that were set aside and reserved.
The legality of those agreements was deferred,
preserved and archived,
but like us, they survived the passage of time
until they were once again spied by Mi’kmaw eyes.
 
Learning about our histories is long overdue.
Much like a refracted pebble in a pond,
the perspective has always been slightly askew.
What we believed to be crystal clear, an affirmation,
our best intentions,
to secure the future of the next seven generations,
was written down in a foreign language—
not our Native communication—
and thus, the intended meaning of our words was lost
in translation.
 
And therein lies the keystone of this cultural bridge:
there were treaties that were signed in peace and friendship,
but they were treaties that implied a Mi’kmaw stewardship,
a reciprocal relationship.
1752 needs to be annually revisited and reaffirmed to confirm that
we are the original inhabitants of this land,
our ancestral hood.
Because it’s not just what was written on parchment,
but how it was meant to be understood.
 
The treaties still matter!
They are not simply smatterings of ink,
they are promises, words to make you think and take you
to the brink of your privilege.
 
Time after time, our treaties were denied,
and perhaps they could have died
if not for the individuals who took up the fight
to assert our Indigenous rights.
 
Grand Chief Gabriel Sylliboy* was not to be toyed with.
Armed with only his knowledge and poor English,
he took to the courts.
The reports say it didn’t end well.
That as a savage, he was at a disadvantage when entering his plea.
But from what I know, I disagree.
He fought for what he believed.
I heard that when he spoke,
there was total silence.
His voice would move even the leaves on the trees.
He was the spark that ignited our fire.
Our cases we took to the courts,
higher and higher!
 
In 1982 the constitution recognized,
then made them into law in 1985.
See, we knew all along that Sylliboy committed no crime.
What he started set the stage for 1999:
enter Donald Marshall Junior.
 
DMJ took on the Crown twice.
The first time stole eleven years of his life.
Once again, a Mi’kmaw man was asserting his rights,
and Marshall became an unlikely hero to the treaty plight.
With his actions came the Marshall Decision—
but not without certain conditions.
Because we still live in a colonized world,
there was an unprecedented second decision,
a “clarification” and “elaboration,”*
but still, an historical occasion.
 
Because before him, it was a case-by-case basis.
And with each victory taken, the province preferred negotiations
to litigation.
They still continued on with intimidation.
And while they were hoping for Mi’kmaw pacification and
placation, we were beefing up Mi’kmaw education.
And once those floodgates were opened,
there was no stopping the Mi’kmaq Nation.
Because we understand there is no such thing as
Mi’kmaw standardization.
We quit playing games the moment Cornwallis signed
that proclamation.
 
Flashback to 1990 when the province retreated.
Before they began, they were completely defeated.
They walked straight out of the courtroom;
it had charged the wrong group of L’nus
for traditionally hunting some traditional food.
A little birdie informed them and told them they would lose,
that their argument was hollow.
(In fact it was a msikue’j,
otherwise known as a sparrow.)*
 
The treaties are still alive.
They continue to help us thrive.
They are built into our family dynamic.
They’ve imprinted themselves on our Native genetics.
They are prophetic in their esthetic,
charismatic, democratic, and systematic,
but never meant to wreak havoc.
It isn’t our fault that many of you find them so traumatic.
 
Most importantly of all,
they are not solely ours to rise up beyond
the level of equal.
You tend to forget,
two sides signed those sacred documents.
We are all treaty people.

 
*Gabriel Sylliboy was the first elected Grand Chief of the Mi’kmaq Grand Council (1918). In 1927 he was arrested in Unama’ki, otherwise known as Cape Breton Island, Nova Scotia, for off-season hunting and possession of pelts outside of the Whycocomagh reserve where he lived. He argued that the 1752 Peace and Friendship Treaty recognized the right of his people to freely hunt and fish on traditional territories. The judge in this case stayed the conviction, arguing that the Mi’kmaq “were never regarded as an independent power” and for this reason the treaty had no authority. In 2017, the Supreme Court of Canada issued Sylliboy a free pardon posthumously.

In August 1993, Donald Marshall Jr. was arrested and charged under the Federal Fisheries Act for “illegal” eel fishing in the offseason. He was found guilty on three charges in provincial court. The Supreme Court of Canada reversed the charges in September 1999, in recognition of the hunting and fishing rights promised in the Peace and Friendship Treaties, signed between the Mi’kmaq, Wolastoqiyik, and Peskotomuhkati in 1760–1761. These treaty rights, which apply to Mi’kmaq in Nova Scotia, New Brunswick, PEI, the southern coast of Newfoundland, and Quebec’s Gaspé region, are protected today under the Constitution of Canada, section 35.
 
In the second decision the court elaborated the extension of Aboriginal treaty rights, stating that they are still subject to Canadian law. The second decision, which was claimed to be an “elaboration,” was seen as a retreat from the first decision and angered Aboriginal communities. The second decision was issued on a motion for re-hearing the case brought by fishermen’s associations in which the court elaborated in particular about such things as the relationship between treaty rights and conservation that had been more implicit in the first decision.

* R. vs Sparrow, 1990, was the first Supreme Court of Canada case to try section 35 of the Constitution Act (1982). Musqueam commercial fisherman Ronald Edward Sparrow of the Fraser Valley, British Columbia, was charged with using a net longer than his license allowed. After six years of impassioned arguments through every court in the province, in what became known as the Sparrow Decision, Sparrow was cleared of illegal fishing charges by the Supreme Court, which upheld his ancestral right to fishing. The case also led to the creation of criteria, “the Sparrow test,” to interpret section 35, providing a method for lawmakers to determine what qualifies as an “Indigenous right.”
PRE-ORDER THE BOOK
 © Rebecca Thomas 2020. Published in I Place You into the Fire (Nimbus Publishing) - release date October 31, 2020
I Place You into the Fire
Rebecca Thomas
Nimbus Publishing
ABOUT THE BOOK:  In Mi’kmaw, three similarly shaped words have drastically different meanings: kesalul means “I love you”; kesa’lul means “I hurt you”; and ke’sa’lul means “I put you into the fire.” In spoken-word artist and critically acclaimed author Rebecca Thomas’s first poetry collection, readers will feel Thomas’s deep love, pain, and frustration as she holds us all to task, along the way mourning the loss of her childhood magic, exploring the realities of growing up off reserve, and offering up a new Creation Story for Canada. 

ABOUT THE AUTHOR: Rebecca Thomas is an award-winning Mi’kmaw poet and the author of I'm Finding my Talk (Nimbus Publishing) and Swift Fox All Along (Annick Press) and former poet laureate of Kjipuktuk (Halifax). She coordinated the Halifax Slam Poetry team from 2014 to 2017, leading them to three national competitions with the Canadian Festival of Spoken Word. 

NIMBUS PUBLISHING is the largest English-language publisher east of Toronto. Nimbus produces more than fifty new titles a year on a range of subjects relevant to the Atlantic Provinces— children’s picture books and fiction, literary non-fiction, social and cultural history, nature photography, current events, biography, sports, and cultural issues. 

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