Kahnawake's controversial 'marry out, get out' policy violates Charter, judge rules

Justice Thomas Davis determined the portion of law, which requires residents of the Mohawk reserve south of Montreal to move out if they marry a non-Indigenous person, is discriminatory based on their family and civil status.

Rule denying residency for members with non-Indigenous spouse deemed unconstitutional

A Quebec Superior Court ruling has deemed Kahnawake's so-called 'marry out, get out' policy contained in its band membership law unconstitutional. It has been on the band council's books since 1981, but was rarely enforced. (CBC )

Quebec Superior Court has struck down part of a controversial membership law in Kahnawake, Que., saying it violates Canada's Charter of Rights and Freedoms.

Justice Thomas Davis determined the rule — which requires residents of the Mohawk reserve to move away if they marry a non-Indigenous person, as well as suspending their other membership entitlements — discriminatory based on social status.

"It's basically an attack on the basic dignity of everybody," said lawyer Julius Grey, who represented the 16 plaintiffs.

In the 48-page judgment, Davis said the policy was based on "stereotypical beliefs" about mixed marriage, 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."

But, Grey pointed out, the judge was not unsympathetic to the other side and acknowledged the challenges faced in the community just south of Montreal. He invited the two parties to reconcile and try to come to an agreement.

In a statement, the Mohawk Council of Kahnawake (MCK) said its legal team is reviewing the judgment, which came down Monday, and will present a report to the chief and council on Thursday.

"Obviously, we maintain the position that matters that are so integral to our identity have no business in outside courts," stated Grand Chief Joe Norton.

"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."

Saga going on for decades

Joe Delaronde, spokesperson for the MCK, said many people in the community are also upset the issue went to an outside court, when they have voiced their opinion "loud and clear" on the policy for almost 40 years.

"No one says you can't marry who you want. All it says is if you do that, you can't live on this territory," he said.

"For this community, they look at it as a matter of survival, the only place where we can be us. And that's where it comes from."

The so-called "marry out, get out" policy began as a moratorium, first passed in 1981. It has officially been on the band council's books since 1984, but has rarely been enforced.

The membership law sets criteria for who is considered to be a member of the First Nation and determines which non-members can become residents. The current version was enacted in 2003.

In 2010, the band council began sending out eviction letters. Some plaintiffs in the lawsuit claim they were cut off from access to services in Kahnawake because their partner is not Indigenous.

Others say they were the targets of violent protests or shaming on social media, and that mixed-race children were referred to as "half breeds" and were denied funding to go to school.

This sign was posted on a telephone pole in Kahnawake when tensions started to flare over the membership law. (submitted by anonymous Kahnawake resident)

Grey says the band council has no choice but to appeal or abide by the ruling — because they cannot argue the right to self-governance.

He gave the example of the provinces, which also have self-governance.

"It doesn't mean you can violate basic rights," he said.

So while the band council can't ignore the ruling, they can add sections to the law that changes the rights people are entitled to, or the process to become a member, Grey said, pointing out that the ruling does not grant membership rights to the non-Indigenous spouse.

When asked whether the community is obliged to follow the decision, Delaronde deferred, saying that question will be answered at a later date, once the analysis stage is done.

The MCK has said the law is a tool with which to protect the community's culture, traditions and language.

Hopes for dialogue, reconciliation

The lead plaintiff in the case is Waneek Horn-Miller, who grew up in Kahnawake.

She married a white man and they have three children, but she and her family cannot live together in her home community. Horn-Miller now lives in Ottawa but has said she wants to move back to Kahnawake. 

Waneek Horn-Miller says she would like to return to Kahnawake so her three children can access to the culture. (Submitted by Waneek Horn-Miller)

She told CBC in an interview Tuesday that she found the judgment fair, and that it leaves room for dialogue and reconciliation.

"I've always been a very strong believer in human rights. I don't believe human rights have to be in conflict with Indigenous rights," she said.

"I believe strongly that my community is a place full of loving and caring people, and I don't believe we inherently act this way, I think it's something that's been a learned process, the impacts of colonization."

Read the Quebec Superior Court judgment here:Mobile users: View the document
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With files from Lauren McCallum and Melissa Fundira