Judge rules Kahnawake's 'marry out, get out' law is unconstitutional

A Quebec judge has ruled that Kahnawake's "marry out, move out" law violates the Canadian Charter of Rights and Freedoms.

The 1981 law automatically strips native-born Mohawks of both their membership in the band and ability to live on the territory if they marry a non-Mohawk.  The intention of the law was to preserve Kahnawake for the Mohawk people.

Last year, 16 plaintiffs took the Mohawk Council of Kahnawake to court, arguing that the policy is discriminatory.  Today, Judge Thomas M. Davis agreed in a 48-page ruling that could have implications on First Nations communities across Canada.  Davis ruled that the band council's policy violated section 7 of the Charter of Rights & Freedoms and must be re-written to comply with the constitution.

He further ruled that the council owes a relatively small amount of damages to some of the plaintiffs, and that the plaintiffs must now be allowed to re-join Kahnawake.

Lawyer Genevieve Grey, who represented the plaintiffs in court, says that the ruling has widespread implications. "It shows that laws and regulations, even [ones] made by a band, would also be subject to certain Charter limitations," she said in an interview with CJAD 800.

Given the relative autonomy that First Nations have in policymaking, the scope of the ruling will likely prove somewhat controversial.  Indeed, it was for that reason that the judge ruled Quebec's provincial Charter of Human Rights did not apply to the band council's bylaws.  Further, as Grey says, "The Mohawks of Kahnawake do have an inherent right to govern the territory, and also to make decisions to preserve their culture and their language."  She added, however, that "in this case, there is no proof to show that denying a native member of the band status based on who they marry has any effect on that whatsoever."

It is unclear if Kahnawake's band council plans to appeal the ruling.  The attorneys-general of Quebec and Canada are also named in the case, though Grey advised that it would be "highly unusual" if they chose to appeal given the "distance" they took from the case while it was heard at the Longueuil courthouse last fall.  Kahnawake Counci's spokesperson has not returned requests for comment.