By James (Sákéj) Youngblood Henderson

James (Sákéj) Youngblood Henderson is a Research Fellow at the Indigenous Law Centre of Canada and teaches Aboriginal law at the College of Law, University of Saskatchewan. He was born to the Bear Clan of the Chickasaw Nation and Cheyenne Tribe in Oklahoma in 1944 and is married to Marie Battiste, a Mi’kmaw educator. During the constitutional process in Canada (1978-1993), he served as a constitutional advisor for the Míkmaw nation and the NIB-Assembly of First Nations. He has helped to draft and author many legal documents and works which protect Indigenous heritage, culture, and legal rights, including the UN Declaration on the Rights of Indigenous Peoples. 

Published in “Rooted Constitutionalism” | (2021) 1:1 Rooted
Download Full Issue (PDF) here.

Since the Mi’kmaw worldview exemplifies a changing biosphere of form-in-flux (pema), the inherent constitutionalism of the Mi’kmaw can best be understood in terms of process, as a way of thinking in terms of actions rather than things. The flux of a biosphere is reflected in the verb systems of their languages, which are built on evidentiality. Evidential verbal systems represent a cognitive linguistic framework and code that reveals how the speaker and the person spoken to came to experience and know of their knowledge. The emphasis is not on the thing or event, but on how one comes to know the spirit or force of an event. This is very different from the verbal systems of many of the Indo-European languages, which set up a cognitive focus on coding an event (an entity) within a timeframe of past or future.

Bernie Francis, a Mi’kmaw linguist, says that “weji-sqalia’timk” expresses the Mi’kmaw comprehension that “they sprouted from the land.”[i] This concept is the foundation of Mi’kmaw knowledge system and law. It is a Mi’kmaw verb infinitive in the polysynthetic verb stems or roots and inflectional prefixes and suffixes of the Mi’kmaw language.[ii] The inflectional prefixes-weji—relate the context of the appearance to the energy, motion or verb stem, and the suffixes—timk—relate the process involved with the motion. This relationship is generated in an exclusive form, “weji-sqalia’tiek”, which translates roughly into English as “we sprouted from the land,” much like the rest of the forest ecology.

“Wejiaq” is translated as “comes from it.”[iii] This concept reveals that the standing peoples, their knowledge, language and law grew from within the embodied environment. The people are rooted in the “langscape” of territory that informs the language and law. In Mi’kmaw thought, sprouting or coming up from the earth is vital to the relatedness and dependency of the Earth lodge to Mi’kmaw knowledge, humanity and law. Mi’kmaw knowledge, language and law have always been connected to the place from which they sprouted and through which they created a holistic network of relations.

This concept of rootedness as the heart of Creation is related to how Kluscap was bound to the land for a long time before becoming the guardian spirit of the Mi’kmaw, according to Hereditary Chief of Siknikt district or tribe (now New Brunswick) and Kep’tin of the Santé Mawio’mi of the Mi’kmaw Nation Stephan Augustine’s description of their “Creation Story.” Augustine’s Creation Story has many parts.[iv] The first part of the teachings of the Creation Story establishes the paramount, energetic covenants (l’nuapskun) and relations between the Mi’kmaq and their ecology (or Mi’kmaw science). The last part of the covenants generates Mi’kmaw knowledge, humanities, and law. I have condensed the creation story for the purposes of this article.

The first part of the Mi’kmaw Creation Story took place on the other side of the Path of the Spirits, in ancient times. The force that created Mi’kmaw or Life-giver (kisu’lk) originated the firstborn energy, the day star or sun (niskam), who was brought across the spirit road or milky way (skite’kumujawti) to light the earth. Kisu’lk also sent a bolt of lightning across the sky that created the dry earth lodge (ws’tqamu) to form the keeper of life forces. Legends recount that the keeper of life lay in the earth, generating the emerging respiratory system (kamlamink) of the green growing energy (plants), and then other life energies were created. Like the various plants that sprouted from the earth, the different life processes of creation are contained in different sounds that generated the atmosphere that gave life. Kluskap was the original concept of the atmosphere and gradually became a guardian spirit, then interpreted as a standing human form. This part of the creation story reveals how the Mi’kmaw are rooted to the land and sprouted from the earth.

In many other stories, Kluskap is depicted in human form, arose from the ground and asked the Life-giver how to live in the land of the rising Sun and sister moon. In response, Kluskap was taught to give thanks to all the forms of life and to respect them. Equally important, the Life-giver told Kluskap to learn to respect the abilities and energies within the human form. The Life-giver sent various knowledge keepers to Kluskap to learn about the forces of the territory and the ecological covenants. These different energies of creation are illustrated by the changing seasons of the Atlantic forest and rivers. One of the last life forms generated was the standing human (kaqmik) that arose from the earth, bringing a sacred energy or spirit that signifies the gifts or abilities that lie within. The highest expression of this sacred energy that is placed within all forms of life is love.

As part of the covenant, and integral to the teachings of the knowledge keepers, the people are taught to respect the spiritual force of love (kesaluek) in their community and nation. The adherence to the teachings of the intimate ordering of loving, and of proper bonds of relationships (kesalimkewey), informs the laws. The way of love is not entirely understood, however. Rather, it is conceptualized as similar to the energy exchanges of plants, which in English is called photosynthesis. The energy exchange of love (kesaluek) exists in all living forms in different but related ways. Love teaches the primacy of heart-knowledge (wijaqami) over mind-knowledge. It generates the communion, loyalty, and fidelity relations among nature and Mi’kmaq, thereby creating cohesion, belonging, friendship, solidarity, empathy, and kindness. It generates the inner strength of acceptance, nurturing, protection, caring, and healing. It generates the concept of respect, gentleness, kindness, honesty, fairness, cleanliness, sharing, and helping. Similarly, it fosters the idea of peace, harmony, and law through familial relationships and seeking to have a good mind in order to generate beautiful relations (kelu’lk) and live a good life (e’plewek). It creates the implicit law that urges everyone to conduct themselves such that they generate positive or good relations in all their interactions and makes one feel good inside (welkwija’luek), even in times of conflict or sadness. It provides direction and guidance for achieving self-worth, dignity, integrity, cooperation, empathy, and transformation.

Other lightning bolts created the Great Spirit fire, which generated from the ground the Spark people. This process was similar to the creation and sprouting of Kluskap as a standing person (kaqmik). These sparks are embodied in the people as the inherent spirits of living, especially the learning spirit. These sparks are often called the Creator’s flame, or soul-flames. The sparks of fire created seven couples and they developed seven families.  Kluskap taught the original people who carried the spirit, called Spark people, their lessons about the duty of learning through language and loving as the way to practice of the sacred way of life. Thus, Kluskap became known as the “one who is speaking to you” or the “teacher creator.” Kluskap taught a spiritual way of life, not a religion.

The Life-giver sent the sacred knowledge keepers to teach the Spark people how to learn the covenants of the Earth lodge. The covenants are the first treaties with the guardian spirits and the animate forces of the Earth lodge. The stories say the knowledge keepers lived with many generations of the Spark people. They taught them how to learn and live cooperatively with the life forms and energies of the many lodges within the Earth lodge, and the Spark people learned the potency and fragility of their humanity (skwijinu’s).

As each newborn of the Spark families sprouted and awoke in a certain environment or place, they, like Kluskap when he awoke, were unaware of everything in the Earth lodge. They had to learn how to live with the covenants and to respect the intrinsic energies of the Earth lodge. Under the terms of the covenants, the Earth lodge provides the gifts of life to the people. These covenants expressed in the language are weaved into a pattern of human conduct and performance that explain Mi’kmaw constitution and law. The Mi’kmaw language is embedded with the notion of right relationships, proper conduct and persuasive law of how to maintain and restore communal balance and harmony among the families.

In the last part of the Augustine Creation story, after the passing of seven winters, the seven families that comprised the Lnu’uk – defined as “the people” in Mi’kmaw – were taught the necessity of gathering together to renew the covenants. This ceremony generated the mawio’mi (gathering). The seven families were told to return with their seven fires (puktew) to rekindle the sparks of the original Great Fire. To renew the covenants and teachings of the Life-giver and the knowledge keepers, seven hereditary leaders represented the seven original families. These renewal ceremonies invigorated the Lnu’uk consciousnesses, knowledge and versions of the language, and were repeated for generations. Each family generated different ceremonies as they dwelled with and comprehended the different forces of the living lodge.

The seven families were told to return, with their seven fires, to rekindle the sparks of the Great Fire. In order to renew the covenants and teachings of the Life-giver, seven hereditary leaders, representing the seven original families, begin the renewal ceremony by smudging with sweet grass lit from the Great Fire. These renewal ceremonies generate the Lnu’uk consciousnesses, knowledges, versions of the language, as well as jurisprudence. The Lnu’uk search for peace, justice, righteousness, and balance is seen as occurring within the consciousness and heart knowledge of the people and is revealed in part by the ceremonies.

The families collaborated in the symbolic reanimation of the creation of the Earth lodge by the construction of a lodge of seven saplings according to teachings. The constructed lodge represents the womb of Earth lodge. After the lodge ceremony, the leaders of the gathering offered the sacred pipe ceremony and renewed covenants and treaties. The concept of fire (puktew) among the descendants of the Spark people came to represent the concept of sovereignty and nationhood. Every fire has a beginning, but always spreads outward from its origin.

The Mi’kmaw civilization was one of the seven civilizations of Lnu’uk. The other six civilizations that sprouted from the Lnu’uk civilization,^[v] following the path of the sun and moon, are as follows: to the northwest of the Mi’kmaw, the Inuit; to the north, Innu (Montagnais, Naskapi, Attikamekw); to the southwest, the Wabanaki confederacy (Penobscot, Passamaquoddy, Maliseet, Abenaki), the Wampanoag confederacy, the Narragansett confederacy, and the Lenapi confederacy(Delaware); and to the west, the Anishinaabe confederacy (Anishinaabe, Anishinabek, Ojibwa, Chippewa), the Iynu (Cree or Eeyouchi), and the Nitsi-pol-yiksiconfederacy (Blackfoot) among others.

This concept of the rooted constitution appears, in translated form, in the Mi’kmaw expression found in the British archives. In the Sɨpekne’katik Declaration (1720), the Sɨpekne’katik chiefs explained to the British Governor Phillips of Nova Scotia that they “believe that this land that God gave us, on which we could be counted even before the trees were born, does not appear to us to be disputed by anyone.”[vi]

The Governor of Ile Royale, Saint-Ovide, in 1730, attempted to explain the French King’s cession of Mi’kmaw lands to the English king in the Treaty of Peace and Friendship. When the Mi’kmaw responded, they wrote: “[L]earn from us, that we are on this earth that you tread and on which you walk, before the tree which you see began growing, it is ours and nothing can ever force us to abandon it.”[vii]

L’Abbé Antoine Simon Maillard relates Arguimaut (L’kimu or Augustine)’s version of the origins of Mi’kmaw life: “[I]n these parts [is] where God decreed we should be born and where we have grown like the grasses and the trees you see around you.”[viii] This concept of sprouting from the land is integral to the Mi’kmaw prayer recorded by L’Abbé Antoine Simon Maillard, which says to the moon: “[T]hou haft concurred to make us spring out of that earth we have inhabited from the first ages of the earth.”[ix]

Throughout the Mi’kmaw territory, the landscape is embedded with thousands of stories and shared meanings of the ecosystems that inform the unwritten constitution and laws of the Mi’kmaw nation. The role of language in maintaining the constitutional and legal order cannot be over-stressed. These grounded visions of continuity and change continually moves the allied Mi’kmaw to remember, renew, and revisit the rooted lifeways and laws endlessly and to create new visions.[x]

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[i] Trudy Sable & Bernie Francis, The Language of this Land, Mi’kma’ki (Sydney, NS: Cape Breton University Press, 2012) at 17.

[ii] See Silas Tertius Rand, Legends of the Micmacs (New York, NY: Longmans, Green, 1894) at xxxiv and xxxvii; Stephanie Inglis, “400 Years of Linguistic Contact Between the Mi’kmaq and the English and the Interchange of Two World Views” (2002) 14 Can J Native Stud 389 at 390–91.

[iii] Sable & Francis, Language, supra note 1 at 17.

[iv] See Stephen J Augustine, “Mi’kmaw Creation Story” & James [Sa’ke’j] Youngblood Henderson, “L’nu Humanities” in Marie Battiste, ed., Visioning a Mi’kmaw Humanities: Indigenizing the Academy (Sydney, NS: Cape Breton University Press, 2016).

[v] Olive Patricia Dickason, Canada’s First Nations: A History of Founding Peoples form Earliest Times (Norman, OK: University of Oklahoma Press, 1992) at 63–67.

[vi] Letter from Indians of Les Mines to Governor Phillipps of Nova Scotia (2 October 1720), London, Public Record Office, Colonial Office 217/3, No 18 Enclosure 13, item # 241(xiv).

[vii] Charlevoix Papers, Discours fait aux Sauvages (1720), Ottawa, Library and Archives Canada, Manuscript Group 18, E-29.

[viii]  “Lettre de M L’Abbé Maillard Sur les Missions de l’Acadie et Particulièrement Sur les Missions Micmaques,” in Les Soirées Canadiennes, Margaret Anne Hamelin, vol 3 (Québec: Brosseau et frères, 1863) at 299 [translated by author].

[ix] Abbé Maillard, An Account of the Customs and Manners of the Micmakis and Maricheets Savage Nations (London, UK: S Hooper and A Morley, 1758) at 47.

[x] Russel L Barsh, “Grounded Visions: Native American Conceptions of Landscapes and Ceremony” (2000) 13:1 St Thomas L Rev 127.