Kahnawake membership law does not pass human rights test

Go back to the drawing board and find a better way to preserve identity without violating rights

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TRACADIE, NS, July 17, 2015/ Troy Media/ – A Quebec Mohawk community should re-assess its membership rules before the Canadian Human Rights Commission does.

Kahnawake’s Mohawk membership law prohibits any Mohawk who marries a non-Mohawk from living on the reserve. The law was based on a 1981 moratorium on mixed marriages. Throughout its history, the community dealt with mixed ancestries, as well as difficult relations between Mohawks and ethnic Europeans on the reserve over limited lands, housing and resources.

In 2010, the Mohawk Council of Kahnawà:ke (MCK) enforced the law by sending eviction notices to households on the reserve. Members of mixed marriages alleged intimidation and vandalism over the law.

Critics make fallacious and provocative comparisons between the Kahnawake law and historic laws against inter-racial marriage, as in the southern United States. Unlike segregation laws, however, Kahnawake’s law was not based on racial or ethnic superiority.

The law seeks to protect a precarious Mohawk cultural identity. Community leaders wished to limit reserve lands for Mohawks. The legitimate desire among First Nations to preserve fragile identity is as misunderstood as the desire among Quebec nationalists to protect their language.

Not all Mohawks support the law. Ellen Gabriel, a Mohawk activist who ran for national chief of the Assembly of First Nations in 2012, has criticized Kahnawake’s law, arguing Mohawks were traditionally inclusive of adoptees and marriage partners who were not Mohawk. They integrated people into their community while preserving their language and culture.

It is undeniable, however, that something does not sit right about these laws in 2015. Modern First Nations communities are not strangers to human rights norms. The federal government amended the Canadian Human Rights Act so that it applies to First Nations on reserves. Since then, the Canadian Human Rights Commission reported First Nations are filing human rights complaints against the federal government and their First Nation governments. Clearly, First Nations are interested in protecting rights.

Indigenous peoples have not rejected individual rights and freedoms from the Western tradition. Evidence shows that, for many Indigenous communities, there is an attempted co-existence between Indigenous traditions and values and Western rights and freedoms.

Christopher Alcantara and Greg Whitfield, two Canadian political scientists, published a comparative analysis of 14 modern Aboriginal constitutions in Canada in the scholarly Journal of Canadian Studies. They discovered a large majority of Aboriginal constitutions contained what are known as ‘first generation rights.’ These are political, legal, property and conscience rights. Almost all these Aboriginal constitutions contained the right to universal franchise, freedom of political speech, security of person and the rule of law.

Preserving distinct cultural identities has a place in Canadian political discourse. However, there are limits in a free and democratic society to what a community may do to preserve that identity.

In the case of Quebec’s Bill 101, there was a legislative attempt to remove non-French languages completely from commercial signage. In the landmark Supreme Court judgment of Ford V. Quebec (1988), the judges ruled preserving the French language was important, but parts of the law unjustifiably violated freedom of expression.

The judges ruled that the law failed the “minimal impairment” test. This impairment test is part of a larger judicial test to determine if a law found to violate the Charter is demonstrably justified in a “free and democratic society.” The test forces government to consider alternatives that would violate rights the least.

In the case of the sign law, the court found the legislators could have passed a law making French the predominant language on signs without removing English altogether. In other words, the Quebec government could have passed another law that violated rights less to achieve the same objective.

If the minimal impairment test were applied to the Kahnawake case, one could argue removing families from their homes, meddling in private relationships, and dividing communities are traumatic human rights-violating acts and are likely not the least rights-violating ways to preserve Mohawk land for Mohawks.

Kahnawake should go back to the drawing board and find a better way to preserve its identity without violating rights so profoundly.

Troy Media columnist Joseph Quesnel is an Aboriginal policy analyst who focuses on Aboriginal policy, property rights, and water market issues.

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