The collective right to cultural preservation cannot be presented as justification for depriving individuals of their basic human rights.
So says Julius Grey, the highly respected constitutional lawyer at Grey Casgrain who is representing seven members of the Kahnawake Mohawk band being evicted from their homes on the reserve for having married non-natives.
The suit demands $50,000 in damages for each plaintiff as well as a declaration by Mohawk Kahnawake Council that members are entitled to live on the reserve with their spouses and bequeath property and rights to their children.
The band’s membership law — commonly referred to as the “marry out, stay out” policy — was established in 1981, although the band has rarely enforced it.
That changed in 2008 with the introduction of the Family Homes on Reserves and Matrimonial Interests or Rights Act. The new federal law stipulates that band councils that have not passed their own laws with respect to non-native matrimonial rights by December 2014 would be subject to federal laws.
That lit a fire under the Kahnawake council, which started to more strictly enforce its membership laws and, in 2010, began sending out eviction letters to members with non-native spouses.
“All we are trying to do is preserve, not only culture and language and identity, but who we are as a people," Grand Chief Michael Delisle told CBC News at the time. “It needs to be controlled by us, and not by outside entities.”
Plaintiffs in the case have been subject to intimidation and threats by members of the band, including anonymous petitions, vandalism, and protests in front of the homes of families with young children, with protesters screaming racial slurs and obscenities.
Although Kahnawake band council has publicly condemned these incidents, the lawsuit alleges it has done little to prevent them.
“Anybody can send anybody an anonymous letter,” says Grey. “However, what the council clearly is responsible for is creating the atmosphere and creating the policy.”
Grey says the case “raises the most fundamental questions,” pitting fundamental Charter rights against aboriginal autonomy — but he’s quick to point out that this is not the first time a group has said mixed marriage jeopardizes the survival of a culture.
“At the time of Confederation, Quebec strongly argued against mixed religious marriage [between Protestants and Catholics] and got art. 127 of the Civil Code — fortunately long gone — which basically prevented mixed marriage in Québec.
“Imagine how that article would be treated in a post-Charter era. I’m certain it would be struck down without a single dissent anywhere by any judge in the Quebec Court of Appeal or the Supreme Court of Canada.”
The counter-argument will be that the Native reserve system in Canada is itself a legal and acceptable form of discrimination, and that the Kahnawake council’s policy is merely an extension of the institution.
Grey agrees in part, but says there must be limits. Private groups, for instance, are not held to the same standard as public institutions that receive public subsidies. He points to Muslim schools in Quebec, for instance, that are funded by the province and therefore must accept Christian Lebanese students.
“There’s no doubt that a private organization can do that,” he says. “A private religion can say, ‘If you marry out, you’re no longer with us.’ But if it’s an institution that’s subsidized, then I don't think they can.”
The more important issue, however, may be the sacrifice of individual Charter rights for the sake of the collective rights of a people — even a people who have faced grave historic injustice.
“We are at the heart of the controversy about right and wrong,” says Grey. “It's clear that there was a terrible injustice committed that we would like to repair — but that repair in my view will have to be done within the Charter limits.”
Where Charter rights conflict, however, higher courts may be called upon — and Grey says he’s prepared to take this case to the highest one in the land.
“If the matter continues, then the Supreme Court will be an inevitable result of a resolution. I cannot see it as the type of case where leave would be denied.”