This week, Quebec Superior Court will hear an important case, with 16 plaintiffs challenging a membership policy in the Mohawk Kahnawake reserve, part of their ancestral home, across the St. Lawrence River from Montreal.
The Mohawks’ “marry out, move out” policy precludes non-aboriginals, even those married to Mohawks, from living on the reserve. The plaintiffs are arguing that the discriminatory rules have created a hostile atmosphere for the implicated couples.
One plaintiff, Christopher Fragnito, son of an aboriginal mother and an Italian father, says the Mohawk band council has created “an atmosphere of hate,” making it socially difficult for people in his situation to live peacefully on the reserve. He points to acts of vandalism and picketing as evidence of the tensions he and others in his situation endure.
The plaintiffs want the rule reversed, and they are asking for financial compensation as well. Representing them is well-known Montreal constitutional rights lawyer, Julius Grey, who claims the policy was never properly adopted into law and, therefore, violates his clients’ Charter rights. In an interview with the Montreal Gazette, Grey argued, “It’s clear that it’s illegal to discriminate based on family relationships.”
For his part, Joe Delaronde, spokesman for the Mohawk Council of Kahnawake, does not deny that there have been some negative incidents, but insists “there is a law,” adopted in 1984, although a moratorium on mixed marriages existed before that date.
Asserting that most community members support the rules, he justifies them with this explanation: “In this very little land we have, we’re surrounded by every kind of Canadian, American, Quebec culture and it can be overwhelming. We’ve almost lost our language, we’ve lost a lot of the ceremonies that are now coming back, and this is part of the community’s effort to maintain identity.”
This is not the first kick at the Kahnawake can for mixed-race couples. In 2014, Waneek Horn-Miller, a Mohawk former Olympian and aboriginal activist, who is partnered with a white man, was ordered to leave the reserve, and protested vigorously. At that time, then-executive director of the Canadian Constitutional Foundation, Marnie Soupcoff, expressed dismay at the policy, writing, “It will be very hard to take this country’s equality rights seriously in the future if they are deemed to be inapplicable to certain classes of Canadians.”
My own reaction was very different. Canada’s indigenous peoples have always lived as societies that exist parallel to white societies, but they have never been run on democratic principles, nor have we ever asked them to. If it had been the policy of the Canadian government to ensure that all Canadians were equal under the law, the reserve system would have been forcibly dismantled long ago. But that would have been considered cultural genocide. For better or worse, the reserve system accords cultural sovereignty to First Nations.
Soupcoff speaks of different “classes” of Canadians. But the difference between First Nations and other Canadians is about more than “class.” First Nations are tribes. Canada is a nation-state. Politically speaking, they are two entirely different phenomena.
What binds non-aboriginal Canadians together is a creed, a set of beliefs. Anyone from anywhere can become Canadian. But what binds tribes together is a shared history and culture, plus – whether or not the expression makes us cringe – blood quantum. Citizenship in a nation-state can be acquired via a statement of belonging. Tribal membership is kinship-based. Democracies are oriented toward individual rights. Tribes are oriented toward collective interests.
The Mohawk policy looks racist on its face, but that is a simplistic perspective. Racism implies hatred. This policy is not based in hatred. If it were, the Mohawks would condemn intermarriage. They do not. They are not objecting to Mohawks marrying “out.” They are only objecting to a creeping dilution of the characteristics that make Mohawks distinctive as a people, and their sacred space distinctive as a home.
At issue, as Joe Delaronde noted, is the survival of a small tribal island in a sea of otherness. If intermarried couples enjoyed the exact same rights as born Mohawks, where would the incentive be to preserve the Mohawk distinction?
We must look at the Mohawks with ecological eyes. Canadians are like one of the Great Lakes, which can absorb a great many new kinds of fish or flora without its character changing. The Mohawks are like a tiny pond. Any environmentalist knows how fragile and in need of protection such small bodies of water are. Even a few foreign plants can drastically alter a pond’s ecological character. As Kahnawake Mohawk Chief Michael Delisle said in 2014: “All we are trying to do is preserve, not only culture and language and identity, but who we are as a people.”
I sympathize with him. And he has precedent on his side. Quebec itself has been accorded assymetrical language rights through Bill 101 – rights that privilege French and place burdens on anglophones, even though both French and English are official Canadian languages, because the Quebec government felt, and the Supreme Court agreed, that extraordinary measures were needed to protect the health of French in our distinct French-majority society, surrounded by an ocean of English.
Why, simply because the idea of blood quantum is repellent to them, should an infinitely smaller and more fragile community, recognized as a distinct people by all Canadians, be forced to place their cultural identity in harm’s way in order to satisfy standards of inclusiveness that preoccupy white Canadians, who are themselves in no danger of “disappearing”?
The plaintiffs in the current Quebec case knew what the Mohawk reserve rules were when they intermarried. It’s late in the day to complain about them. Muddying the waters is the fact that tax and other benefits accrue to reserve residents, so an observer might be forgiven if he questions the purity of the motivation in bringing this legal challenge.
The court must respect the fact that the word “tribe” implies a social and political structure that is existentially different from the nation-state. When a tribe’s survival is at stake, membership has its privileges. And that is how the court should rule.