The Mi'kmaq people have lived under colonial oppression for centuries. They have pursued the right to self-determination for decades and yet it has been consistently denied to the Mi'kmaq people by the very colonizers that have usurped it in the beginning of their relationship. Several obstacles constructed by states have curbed the struggles for self-determination undertaken by Indigenous peoples all over the world. At the center of the conflict has been establishing a proper definition of the word 'peoples' as it applies to international law. This essay looks at who or more specifically what "natural political unit" best constitutes peoplehood. In this examination of peoplehood, ongoing nation v. state conflicts will be addressed and the relatively new concept of "peoplehood" will be analyzed regarding its potential applicability to Mi 'kmaq.

At the Dawn of man, the Creator (Kisulk) granted the Mi'kmaq life and the right to freewill (right to self-determination). The Mi'kmaq were to live on Mother Earth and enjoy the gifts of her lands and waters. In exchange the Mi'kmaq were to protect and preserve Mother Earth. It was a divine obligation delegated to the Mi'kmaq. Kisulk gave us these rights and responsibilities and no government can take them away.
•  As taught to me by Mi'kmaq Traditional Elders

This paper will demonstrate that the Mi'kmaq people have a right to self-determination. It will look at how this right has long been denied to the Mi'kmaq by the colonizing states of Britain , France and currently Canada . To argue this point I will analyze which "natural political unit" is the best suited to express self-determination and then will apply this analysis to see if the Mi'kmaq can legitimately say that they do have a right to self-determination.

This paper will look beyond the discourse of the "nation vs. state" in the legitimate application of self-determination argument that exists in current literature. I intend to first demonstrate that the Mi'kmaq do have the right to national self-determination [1] but since that argument is so problematic I will also introduce into the discourse the concept of "Peoplehood" and how that can be applied to the right of self-determination.

Historical Self-determination of the Mi'kmaq

" All peoples have a right to self determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. " [2]

The Mi'kmaq people once existed as a free people with the inherent inalienable right to self-determination. A Mi'kmaq chief said of our ancestral time: "...we had plenty of good land, we worshipped Kesoult, the Great Spirit, we were free and we were happy." [3]. This existence of freedom was brought to a sudden, horrible halt with the introduction of colonialism to the Americas .

The Mi'kmaq have fought six wars against British imperialism to maintain their freedom. Resulting in a series of peace and friendship treaties (the 1725, 1749, 1752, 1760-61, 1779 Treaties) that are still in effect today. However, the struggle for freedom played out in the international arena under the label of self-determination is still being waged. A survey of contemporary Mi'kmaq political efforts can demonstrate the ongoing nature of this struggle.

In 1969, the Canadian government tried to push the White Paper into legislation as a means of furthering assimilation. The Indigenous people of Canada , including the Mi'kmaq, rallied together and responded with the Red Paper. The Red Paper listed a series of rights that the Indigenous people felt were to be asserted, among them the right to self-determination. [4]

The Mi'kmaq, through the traditional governing system of the Mi'kmaq Grand Council, continued in this line of thinking and in 1982 submitted a human rights complaint as a means of protecting their right to self-determination: "...Acting as a sovereign power, it lodged complaints against Canada with the Human Rights Commission of the United Nations declaring that Canadian policies were racist and violated Mi'kmaq aboriginal rights to self-determination." [5] Unfortunately, the complaint was rejected, but this did not deter the Mi'kmaq people.

In 1984, the Mi'kmaq produced a declaration of sovereignty that said "... (the declaration of sovereignty) will be recorded in history as the moment when Micmacs were reunited into a strong nation... We will remain united for as long as the sun and moon shines." [6] This declaration was intended to be a tool for the Mi'kmaq people to freely exercise the right to self-determination.

The Canadian government responded to the Mi'kmaq claims to self-determination by dismissing the complaints and "stating that the Mi'kmaq were just another minority group." [7] This response set the tone for upcoming political fights over the application of self-determination. The Mi'kmaq have insisted that they are a nation that has the right to self-determination while the Canadian government has said that only a "peoples" have such a right meaning that the Mi'kmaq was a "minority group" therefore do not qualify. The point of contention was and still is who has the legitimate right to exercise self-determination: a nation or a state.

Determining the political unit to exercise Self-Determination

In the book "Secession" Buchheit addresses the problem of who has the legitimate right to exercise self-determination. He uses the proposition that "natural political units" [8] are the basis for understanding this issue. A natural political unit is a legitimate political body because it derives its legitimacy from the consent of the governed. It had to be a naturally occurring self-governing political entity. It is his belief that to be governed without consent will only lead to unrest. [9]

The question then is which political entity is the natural political unit, because it is this political unit that should legitimately exercise self-determination.

The State

Hannum writes that "The State as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states." [10]

A key element in the state's self definition existence is the claim that sovereignty is the one critical factor separating states from other political units. From the state point of view, "sovereignty is the cornerstone of international rhetoric about state independence and freedom of action." [11] It is this freedom of action that the state would label self-determination. Sovereignty and self-determination go hand-in-hand in the doctrine of states. A state must have the power to exercise political freewill (self-determination) and sovereignty provides that principle it.

Sovereignty has gone through an evolutionary process as sovereignty is derived from the sovereign. The concept of the sovereign has changed. "...development of the notion of sovereignty partly reflected a shift from the sovereignty of the rulers to the sovereignty of the state..." [12] This newer concept reflects the political will of a democracy rather than what used to be accepted as a legitimate ruling body: a monarchy.

The state's claim to self-determination can be expressed in the idea that self-determination is the desire for self-rule, the desire not to be ruled by others. Self-rule implies that there is a political participation of the people governed; what ideally manifests in a democracy. The state lays claim to be the highest political body that is representative of people for democracy. From this point of view the connection of self-determination to democracy is what has empowered the state to be the legitimate political unit to exercise self-determination. [13]

Many have argued the idea that states are the only political body that can exercise self-determination. One example is Rosalyn Higgins, who conducted a study for the UN concerning Bangladesh crisis. In addressing the issue of states, nations and self-determination, she argues that the latter "refers to the right of a majority within a generally accepted political unit to exercise power...[T]here can be no such thing as self-determination for the Nagas." [14]

In "The Dynamics of Secession" Bartkus makes a good point when he explains that the international community, through international protocols, protects the territorial integrity, and therefore sovereignty, of the state at the expense of expressing self-determination at a level other than the state. Bartkus cites two protocols for proof: (1) Article 2(4) of the UN charter, which states that: "All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state."; and (2) Article 6 of the General Assembly Resolution 1514, which declares that "Any attempt aimed at the partial or total disruption of national unity and territorial integrity of a country is incompatible with the Purposes and principles of the Charter of the United Nations."

Bartkus explains this state desire to jealously guard territorial integrity in the following way: " Many governments decisions have been based upon the perception, widely held before the twentieth century and currently still prominent in many parts of the world, that the deprivation of territory would necessarily damage three separate state interests security, wealth and prestige." [15] These three interests associated with territorial integrity still grounded in the desire of states to preserve their territorial integrity by denying self-determination to other political units.

It should be made clear though that a state's sovereignty is not absolute and can be questioned especially when witnessed in the exercise with other states. There is a limitation upon states sovereignty, as it exists with other states that have equal status as sovereign states.

"For the practical purposes of the international lawyer sovereignty is not a metaphysical concept, nor is it part of the essence of statehood; it is merely a term that designates an aggregate of particular and very extensive claims that states habitually make for themselves in their relations with other states. To the extent that sovereignty has come to imply that there is something inherent in the nature of states that make it impossible for them to be subjected to law it is a false doctrine which the facts of international relations does not support." [16]

To question state sovereignty is also to question the very nature of the state. For if the concept of state sovereignty is a flawed, artificial concept then the idea of the state, built upon the principle of sovereignty, may also be flawed.

The Nation

What is a nation? Barrington , in his article "Nation and Nationalism" provides one response to this question. He presents some of the accepted definitions of a nation, dissects them and then he arrives at his own meticulously constructed definition, namely: " ...nations are groups of people linked by unifying traits and the desire to control a territory that is thought of as the group's national homeland." [17]

In his analysis to determine who is a "group of people linked by unifying traits", Barrington uses two methods to determine group distinctiveness as a means of identifying a nation. The first one is "self-identifying". It is the condition where a group has a 'group consciousness". There is a self-identification by the group by themselves, not so much as by others. The second method is identifying characteristics that distinguish the group from the ambient group, such as religion, language, historic, geographic, and racial characteristics. [18]

The importance of using Barrington 's methods to identify group distinctiveness is to identify whether or not a group can lay claim to being a nation and more specifically for this paper can the Mi'kmaq lay claim to being a nation. This analysis will be applied later.

Does this definition of a nation fit the "natural political unit" criterion better than a state does? I suggest it does. In order for the political body to be legitimate, a "natural political unit" needs the consent of the governed. The unifying traits that Barrington discusses, such as religion, language, history, geography and race, provide a far greater foundation for unity and therefore consent of the governed. In poly-ethnic or multinational states there is a diversity of these unifying characteristics to the point that some may be distinct when compared together, such as here in Canada when comparing Mi'kmaq people to European people. The nation poses a better political body as a "natural political unit" than the state.

Having determined this, do nations have the right to self-determination? There was a time when the international community had accepted that idea. Self-determination has, however, gone through an evolution. It has gone from national self-determination, to colonial self-determination, to self-determination of the state. [19]

It was accepted in the 19 th century that self-determination could be applied to a people even if they were without a state. That way of thinking allowed for the emergence of new states. [20]

The political aftermath of WW I began to restrict self-determination and it was no longer accepted by the international community that all nations have this right. The Allied powers only allowed the defeated nations of the central powers to exercise self-determination. This carved up the old empires of Europe . [21]

The Atlantic Charter of 1941 further developed the use of self-determination by accepting and re-introducing national self-determination as a policy of countering the communist threat. [22]

The United Nations General Assembly resolution 1514 put an end to the 1941 Atlantic Charter, restricting national self-determination to colonial self-determination. The Allied empires were breaking up as they lost control of their overseas colonies. The General Assembly resolution 1514 recognized that overseas imperialism and colonialism would not be accepted in the "new" international community. However, the acceptance of self-determination at this time period did not accurately reflect national self-determination as colonies were allowed to de-colonize and become states of their own. The problem is that they were reflections of the colonially imposed state borders, which were not drawn upon national lines. [23] This produced a political condition of Neo-colonialism for those "states" that de-colonized by the principle of colonial self-determination.

National self-determination was still viewed as a threat to empires. [24] Neo-colonial states became the bastard sons in the international community.

This de-colonization period did not apply to many Indigenous nations; as they did not meet the "salt water" test of colonialism. The "salt water" test prescribed that the colony be 'external' to the 'mother country' (e.g. as Canada is to Great Britain ). Places such as United States , Canada , Mexico and many more colonial states were exempt for this de-colonization period despite the fact that Indigenous nations in these states suffered under the same conditions as the overseas colonies. The international understanding was "Apart from colonies and other similar non-self-governing territories, the right to self-determination is extended only to territories under occupation (note the legal claim of the Baltic states or of East Timor) and to majorities subjugated to institutionalized racism (segregation, apartheid) but not to minorities that are victims of similar policies." [25]

Although the United Nations does not apply this colonial self-determination to Indigenous peoples in the Americas, this does not mean that Indigenous nations do not exist: "The contemporary reality is that Indigenous nations do continue to exist, though greatly weakened, while nation-states have grown larger, more powerful, and more threatening to the Indigenous nations." [26] There is simply an unspoken international policy of non-recognition of Indigenous nations, as can be evidenced by the 1982 Canadian response to the Mi'kmaq claim to self-determination.

The evolutionary process of self-determination thus arrives at the state's exclusive claim to self-determination, which denies the right of self-determination to any other political unit other than a state. This argument was previously outlined. In the current United Nation's policy Indigenous nations, such as the Mi'kmaq, are not entitled to the right, as they are not recognized as a "people". To gain self-determination, under international law, the Mi'kmaq will have to prove that they are a "people" and in order to do so a first step may be to have to prove they are a nation and then fight the "nation vs. state" argument for self-determination.

So are the Mi'kmaq a Nation? If we look back at Barrington 's definition then we see that there are two parts to it. The first part is that nations are "groups of people linked by unifying traits" and the second part is that these groups of people have "the desire to control a territory that is thought of as the group's national homeland."

To demonstrate that the Mi'kmaq are groups of people linked by unifying traits I will use Barrington 's two methods of identifying group distinctiveness. First, is there a condition of self-identification by the Mi'kmaq? This is easily addressed just by the very fact that there is a self-identifying name for the people: Mi'kmaq. The group's consciousness is best illustrated in the unifying factors of the second part of this "distinctiveness test": identifying characteristics that distinguish them from the ambient group. To use Barrington 's list of possible characteristics the Mi'kmaq could demonstrate distinctiveness in each one of them. In the case of religion the Mi'kmaq have an animistic spiritualism that places Kesulk at the center not Jehovah or Yahweh. It is not European Christianity. In the case of language the Mi'kmaq have their language derived from an Algonquin base, not English. Historically, the Mi'kmaq are different in the sense that 1492 was not the dawn of the Mi'kmaq people. Thousands upon thousands of years of history exist prior to European contact. Geographically the Mi'kmaq occupied a separate land base from the Europeans. It is called Mi'kma'kik and it extends from northern Maine , USA to north eastern Quebec , Canada and as far east as Newfoundland . Racially, the Mi'kmaq have no genetic connection to the European people. This would meet Barrington 's group distinctiveness test for the first part of his definition of a nation. As for the second part of the definition I have demonstrated in the beginning of this paper the historical struggle for the Mi'kmaq to control their homeland. I submit that according to Barrington 's definition the Mi'kmaq are a nation.

Understanding now that the Mi'kmaq are a nation then should they not have the right to national self-determination? It is clear that they should, but as illustrated before states presently do not recognize national self-determination. Historically they did but that past with the enactment of the UN General Assembly Resolution 1514. However, this recognition of self-determination was considered colonial self-determination. There were two criteria for colonial self-determination. The first was to be under occupation by another power and the second was to be subjugated to institutional racism. The Mi'kmaq can lay claim to both. The Mi'kmaq nation is occupied by the Canadian state. To understand the historic Peace and Friendship treaties between the Mi'kmaq and the British Crown is to realize that there was no surrender of Mi'kmaq lands and resources. Still, the Canadian state lays claim to sovereignty over all of Mi'kmaq lands and resources. The Mi'kmaq can also point to institutional racism by simply pointing out the existence of Mi'kmaq reserves. This sort of physical segregation is a geographic manifestation of this racism. The Mi'kmaq nation can therefore argue that they have a right to self-determination, but as mentioned before the problems lies with the fact that the application of colonial self-determination rests on the 'salt water" thesis, which denies the Mi'kmaq nation the right to self-determination. It would seem then that the Mi'kmaq nation cannot legitimately exercise the right to self-determination in the current international context unless another argument is used. The "nation vs. state" argument is at a current standstill in favor of the state so another argument has to utilized if the Mi'kmaq nation wants to open up the discourse to find a solution.

The solution may lie in the concept of "Peoplehood." In the essay "Peoplehood:... A Model For American Indian Studies", three authors, Holm, Pearson and Chavis present an alternative to the state perception of the political and social arrangement of Indigenous communities. Their intention is introduce a new paradigm for American Indian studies, but their work opens new political doors for the fight for self-determination for Indigenous peoples. They show that using the label "nation" could present some problems for Indigenous people since there is a state defined connection to the land. [27] There is a concern that states can argue that Indigenous peoples do not "own" a land base or are dispersed far and away from their "homeland"; that they cannot be a "nation" without a "homeland" and cannot, therefore, even enter into the argument for self-determination. These authors present the idea that the identifier "Peoplehood" can exist without the state perceived political connection to the land of territorial integrity. A peoples can exist when a nation does not.

There are other criteria for what constitutes a people. The authors introduce the four criteria for "Peoplehood." They are: language, sacred history, religion, and land. It is important to understand that these criteria are not mutually exclusive they are "interwoven" and must exist together in symbiotic state. Although land is mentioned as one of the criteria it should not be mistaken for the western political concept of territorial integrity. It is the cultural, spiritual and intellectual connection to the land that is important here.

If we apply these criteria to the Mi'kmaq nation we can determine if the Mi'kmaq have qualities of "Peoplehood." The first is language and, as has been discussed earlier the Mi'kmaq have a language based on the Algonquin language. Second is sacred history. The Mi'kmaq have an extensive oral tradition that is spiritually based and Mi'kmaq history begins the with creation stories. [28] This is a sacred history that goes back to the beginning of time, which the Mi'kmaq refer to as the El time. The third criterion is religion, which was discussed earlier when proving that the Mi'kmaq were a distinct group of people that constitute a nation. Finally there is the criterion of land and the Homeland of the Mi'kmaq is referred to as Mi'kma'kik. Now the question that would arise is: "Are these criteria interwoven in the Mi'kmaq context?" For proof of this I will provide a condensed version of the story about the creation of Mi'kma'kik.

A long time ago, Kesulk said to Sebaneese that world would be flooded and Kesulk instructed Sebanese to blow a whistle. The whistle would produce an iceboat. He was to keep blowing the whistle until the iceboat was large enough to fit many people and animals. Sebanese did as instructed and blew the whistle for a long time. The boat fit every one and all the animals that were supposed to come on it. After a very long time of floating around, the iceboat bumped into land and settled there with all its people, animals and the dirt and rocks it had gathered in its creation. It had come to settle on the area now know as Prince Edward Island. This explains why the dirt and rocks on the island are different from the other provinces. [29]

What does this story have to do with "Peoplehood"? Everything. It demonstrates that Mi'kmaq have the qualities of "Peoplehood". The story was originated in the Mi'kmaq language, and contains a sacred history that referred to Kesulk (the Creator). It is placed in the context of a religious event and it relates primarily to the creation of the Mi'kmaq, land; Mi'kma'kik. Moreover, all four of these components are interwoven and cannot exist without each other. Therefore the Mi'kmaq constitute a "People" in the context of this "Peoplehood" model.

States, and perhaps even some nations, may not be able to fit these criteria for "Peoplehood". For example, if we apply the same criteria to a state or a nation, there will be many instances were they do not have a sacred history or a language. This inability to prove that they meet the criteria for "Peoplehood" is significant in the political context. It would appear that a better political body to fit the concept of "natural political unit", than a state or nation, is "Peoplehood". The reliance upon sacred history and the specific context to land is a stronger conceptualization for criteria for a "natural political unit". The authors describe "Peoplehood" not just as self-governing but also as self-containing. [30] They also state that "Peoplehood serves to explain and define codes of conduct, civility, behavior within a given environment and relationships between people. What we term "law" and the enforcement thereof, is unquestionably a part of peoplehood." [31] The authors then equate this condition to sovereignty and it "is inherent in being a distinct people." [32]

This is an important concept that the Mi'kmaq can adopt, as the Mi'kmaq are good examples of "Peoplehood" and states and some nations may not be. This will allow the Mi'kmaq to re-enter into the self-determination discourse from another angle without getting caught up in the weakened argument of being "just" a nation. It is also important because it places the emphasis on the term "people" and after all, does not Article 1.1 of The International Covenant on Civil and Political Rights and The International Covenant on Economic, Social and Cultural Rights state:

"All peoples have a right to self determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." [33]

This passage says nothing about states or a nations.

Conclusion

I have demonstrated that the Mi'kmaq indeed do have a right to a variety of qualified forms of self-determination. They can apply to the form of national self-determination, colonial self-determination and the self-determination of peoples through the context of the "Peoplehood" definition provided here. Despite this ability to prove the argument we have seen that there have been a variety of obstacles placed in the way of the path to freedom for all non-state actors, including the Mi'kmaq. Given that the evolutionary process of the principle of self-determination has left the Mi'kmaq people out of the argument, a new argument must be produced. To adhere to the old argument of "nation vs. state" will most likely leave the Mi'kmaq in a political position where they are "checked" at every turn of the political game. It would be better for the Mi'kmaq to change the game board and play by another set of rules, ones they might be able to influence.

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Barrington , Lowell W., Nation and Nationalism: The Misuse of Key Concepts in Political Science, Marguette University , December 1997

Buchheit, Lee C. Secession , New Haven and London , Yale University Press, 1978

Heraclides, Alexis, Secession, Self-Determination and Non-Intervention ,

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Anaya, S. James, Indigenous Peoples In International Law, New York , Oxford University Press, 1996

1. The argument of "internal vs external" self-determination will not be addressed in this essay.

2. The International Covenant on Civil and Political Rights and The International Covenant on Economic, Social and Cultural Rights

3. Ruth Holmes Whitehead, The Old Man Told Us: Excerpts from Micmac History 1500-1950 (Halifax: Nimbus Publishing Ltd., 1991) Foreword [Hereinafter Old Man]

4. Harald E.L.Prins, The Mi'kmaq: Resistance, Accommodation, and Cultural Survival (Fort Worth: Harcourt Brace College Publishers, 1996) 199. [Hereinafter Resistance]

5. Prins, Resistance p. 215 and James S. Anaya, Indigenous Peoples In International Law (New York: Oxford University Press, 1996) pp. 99-100 [Hereinafter International Law]

6. Prins, Resistance p. 215

7. Ibid

8. Lee C. Buchheit, Secession (New Haven and London, Yale University Press 1978) p.4 [Hereinafter Secession]

9. Buchheit, Secession p. 4

10. Hurst Hannum, , Autonomy, Sovereignty and Self-determination ed. Hurst Hannum (Philadelphia, University of Pennsylvania Press, 1990) p. 16 [Hereinafter Autonomy]

11. Hannum, Autonomy p. 14

12. Hannum, Autonomy p. 23

13. Hannum, Autonomy p. 30

14. Alexis Heraclides, Secession, Self-Determination and Non-Intervention p.406 [Hereinafter Secession, sd and non]

15. Viva One Bartkus, The Dynamic of Secession Comp. and ed. Viva One Bartkus (Cambridge: Cambridge University Press, 1999) p. 54 [Hereinafter Dynamics]

16. Hannum, Autonomy p. 14-15

17. Lowell W. Barrington , Nation and Nationalism: The Misuse of Key Concepts in Political Science (Marguette University, December 1997) p. 713 [Hereinafter Nationalism]

18. Buchheit, Seccession p. 9-10

19. Bartkus, Dynamics p. 111-112

20. Ibid p. 65

21. Ibid p. 110

22. Ibid p. 111

23. Ibid p111

24. Ibid

25. Heraclides, Secession, sd and non p. 404-405

26. Leroy, Little Bear, Menno Boldt and J. Anthony Long, Pathways to Self-Determination: Canadian Indians and the Canadian State eds. Leroy, Little Bear, Menno Boldt and J. Anthony Long (Toronto: University of Toronto Press, 1984) P. 28 [Hereinafter Pathways]

27. Tom Holm, Diane J. Pearson, and Ben Chavis, Peoplehood: A Model For American Indian Status p 17 [Hereinafter Peoplehood]

28. A very large collection of oral traditions and the stories they hold can be viewed in the book "The Old Man Told Us."

29. Whitehead, Old man p. 5-6

30. Holm, Pearson and Chavis, Peoplehood p 18

31. Ibid

32. Ibid

33. The International Covenant on Civil and Political Rights and The International Covenant on Economic, Social and Cultural Rights