Mohawk community’s ‘marry out, get out’ law ruled unconstitutional

MONTREAL — A judge has ruled the so-called ”marry out, get out” provisions of a membership law on the books of a Mohawk community near Montreal are unconstitutional.

The sections, which Kahnawake authorities said were designed to preserve Mohawk culture, are discriminatory and violate the federal Charter of Rights and Freedoms, Quebec Superior Court Justice Thomas Davis wrote in a ruling. 

The case was heard in court last year over provisions commonly referred to as “marry out, get out,” which state anyone who marries a non-Indigenous person can no longer live on the reserve just south of Montreal.

In his ruling, the judge said federal government actions over the years have disadvantaged the Mohawks because they had lands expropriated and for many years were discouraged from practising their own culture.

But Davis noted that none of the chiefs who testified were able to provide objective evidence that mixed marriages have an impact on land use or erosion of Mohawk culture.

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“The evidence allows the court to draw the conclusion that sections of the KML (membership law) are 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 this will have a negative impact on the ability of the band to protect its culture and its land,” Davis wrote.

“However, this belief is not supported by any empirical evidence.”

A group of 16 plaintiffs banded together to challenge the membership policy they called discriminatory.

Some left the community, while others remained. They told the court they were exposed to protests, threats and expulsion notices.

“At first glance, I think we’re very happy this rule was deemed unconstitutional because it was quite problematic,” Genevieve Grey, one of the lawyers who represented the plaintiffs, said in an interview.

The membership rule has existed for more than three decades and the council argued in court it was “theoretical” because no one has ever been removed by force from the territory.

But Davis wrote it was clearly demonstrated that people’s lives had been affected and he ordered the council to pay seven complainants a total of $35,000 in moral damages.

The judgment gives the Mohawk Council of Kahnawake a certain level of autonomy in dealing with the matter as well as the possibility of finding another measure to protect lands, language and culture — but one that respects the Charter.

“The court notes that in many of its sections the KML recognizes the importance of commitment to language and culture by people applying to be members,” the judge wrote.

“Perhaps going forward, the (Mohawk Council of Kahnawake) should consider placing more importance on that commitment than on the origins of one’s spouse.”

In response to Monday’s ruling, the Mohawk council said in a statement its legal team is reviewing the judgment and will present its findings later this week.

“Obviously we maintain the position that matters that are so integral to our identity have no business in outside courts,” said 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.”

Grey said the plaintiffs recognize the matter remains a very emotional issue on all sides.

“Our hope is that eventually things will change,” she said. “I think that right now everyone is stuck with their own perspective. With this judgment, we hope attitudes will change.”

Sidhartha Banerjee, The Canadian Press