Posted on May 1, 2018

Mohawk Community’s Law Against Mixed Couples on Reserve Ruled Unconstitutional

Graeme Hamilton, Montreal Gazette, April 30, 2018

A controversial membership law that requires residents of the Mohawk reserve of Kahnawake to move out if they marry a non-native violates the Canadian Charter of Rights and Freedoms, a court ruled Monday.

The ruling by Quebec Superior Court Justice Thomas Davis declares that a 37-year-old rule invoked to preserve Mohawk culture discriminates against Kahnawake members on the basis of family status and civil status.

The judge acknowledged that Kahnawake, just south of Montreal, has been disadvantaged by the actions of the federal government. “An important part of their land was expropriated for the (St. Lawrence) Seaway. The reserved lands have shrunk in size. For many years, the Mohawks were actively discouraged from practicing their culture,” Davis wrote.

But that does not justify an internal law that has sown division and sparked vandalism and online abuse as residents turned against each other.

The judge said the “Marry Out, Get Out” provision of the Kahnawake Membership Law is “largely (if not solely) grounded in a stereotypical belief that non-native spouses will use the resources and land of the Band in a way that is detrimental to it and that will have a negative impact on the ability of the Band to protect its culture and its land.”

The Mohawk Council of Kahnawake, the defendant, said it needs time to study the decision.

“Obviously, we maintain the position that matters that are so integral to our identity have no business in outside courts,” Grand Chief Joseph Norton said in a statement. “However, a decision on the case has been rendered. We are now taking the time to analyze the decision and will inform the community further in the coming days.”

Julius Grey, who represented the 16 plaintiffs, said he is optimistic the ruling can lead to reconciliation. The judge concluded there was “a clear violation” of Charter rights, but he left room for discussion, Grey said.

The lead plaintiff was Waneek Horn Miller, who represented Canada in the 2000 Summer Olympics, where she met her future husband, Keith Morgan. They have been a couple since 2002 and have three children.

When they were building a new home in Kahnawake in 2010, a petition began circulating demanding that the construction stop. In 2014, she learned her name was on an eviction list, and when she went to a band meeting to defend herself, she was verbally attacked and later received online abuse.

“Despite all of this, Ms. Miller would like to return to Kahnawake and would like her children to have access to the culture,” the ruling said. “She believes that she can contribute to the Kahnawake community. However, she is fearful of the consequences of moving back to Kahnawake for her family.”

In 2014, former Olympian Waneek Horn Miller, whose husband is non-native, learned her name was on an eviction list from the Kahnawake reserve. She was verbally attacked when she tried to fight the eviction. Tyler Anderson/National Post/File

The decision documents the verbal abuse suffered by the children of mixed marriages, who have been called “half-breeds” or “white bastard.” Tensions got particularly high in 2014 when a “grassroots” campaign began to persuade mixed couples to leave.

Marie Stacey, who lives on the reserve with her non-native partner, testified she received a notice telling her to leave. She attended a public meeting where one participant suggested a return to the 1970s, when “we burned their (non-natives’) houses,” she told the court.

“Ms. Stacey is scared of what is happening on the Reserve, scared that people might come to her home,” the decision reads. “Being a plaintiff in the present lawsuit has given her little comfort, as at least one Facebook post referred to the plaintiffs as having targets on the back of their heads.”

The plaintiffs had been seeking $50,000 damages each, but the judge said the sum was excessive. He awarded a total of $35,000 to be divided among seven plaintiffs who he said were harmed.

The judge disputed the Mohawk Council of Kahnawake’s contention that “Marry Out, Get Out” is theoretical because the council has not forcibly evicted anyone. “People’s lives have been affected,” he wrote.