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Canada Mohawk community’s ‘marry out, get out’ law ruled unconstitutional by Quebec court

It is a court ruling, Tracey Deer says, that asserts the “freedom to love” whomever you choose.

Ms. Deer is a Mohawk woman married to a non-native man, putting her in violation of a long-standing policy that says such couples may not live on the Kahnawake reserve near Montreal. But a Quebec Superior Court judge on Monday declared the rule discriminatory and unconstitutional.

The finding was welcomed as a major step by Ms. Deer and Waneek Horn-Miller, a former Canadian Olympian from Kahnawake also married to a non-native man. Both said Tuesday they hope the decision will lead to reconciliation on an issue that divided Kahnawake and led to protests, vandalism and online threats.

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“It legally documents at this moment in history that this is wrong,” said Ms. Deer, a filmmaker who co-created the show Mohawk Girls. “It’s a validation of all we’ve been saying. This is a human-rights violation.”

The “Marry Out, Get Out” law, first adopted as a policy in 1981, took its current form in 2003 and stipulates that people who marry non-natives must leave the community. The Mohawk Council of Kahnawake defends it as a way of safeguarding Mohawk land and culture.

Justice Thomas Davis showed sympathy for that argument, saying that Kahnawake has lost parts of its territory over the years, and its members were discouraged from practising their culture. But he said the Mohawk council failed to demonstrate how its membership law was helping protect the community’s culture or resources, and he concluded the law violated the Canadian Charter on the basis of family status and civil status.

“There is no one iota of evidence that demonstrates that a family where there is a non-native spouse takes up more land or uses more services than a family where both spouses are native,” the judge wrote.

He said the Mohawk council expressed its commitment to language and culture. “Perhaps going forward the [council] should consider placing more importance on that commitment than on the origins of one’s spouse.”

The ruling is unlikely to end the legal dispute, and some experts say the case could end up at the Supreme Court. Joe Delaronde, a spokesman for the Mohawk council, insisted the community’s membership laws are an internal community matter.

“Our position has been that these types of matters are not to be decided by outside courts,” Mr. Delaronde said in an interview on Tuesday. “We’re very independent here and we say it’s our law and our business.”

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He framed the membership law as part of the Mohawk struggle against assimilation.

“When a place like Kahnawake stands up for itself we seem like radical bad guys when really, all we’re doing is trying to protect what little we have,” he said. “It’s a survival mechanism.”

Julius Grey, the Montreal human-rights lawyer who represented the 16 plaintiffs in the case, says the judgment establishes limits on native autonomy.

“Notwithstanding the judge’s great respect for autonomy and self-government, there are limits: You can’t discriminate against people on the grounds of who they choose to live with,” Mr. Grey said. “You can’t have them choose between their home and their spouse.”

Mixed couples living on the reserve have faced pressures over the years, ranging from eviction notices and protests to signs outside their homes telling non-natives to leave, the court found. The hostility extended to their children, who were bullied in school, called “half breed” and unable to attend Mohawk language schools, according to the court.

The feud also spilled into online threats. According to a ruling, one Facebook post said the plaintiffs had targets on the back of their heads.

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The judge awarded damages to the six of the plaintiffs, ranging from $1,000 to $25,000.

Those at the front-line of the dispute say they hope the ruling will lead to changes inside Kahnawake after years of division. Ms. Horn-Miller, the lead plaintiff in the case, said it was difficult to bring the case before the courts.

“We’re all interrelated in Kahnawake and it was hard,” Ms. Horn-Miller said from Ottawa, where she divides her time with Kahnawake. Ms. Horn-Miller, who represented Canada in the 2000 Summer Olympics in water polo, faced pressures to leave, and her family received hate mail. Still, she pressed on with the legal battle.

“I was raised with a strong sense of human rights, and I was left feeling I had no alternative,” she said. She called the ruling “fair and sensitive,” and said she hoped the next step would be reconciliation within Kahnawake.

“I believe in my people and my community,” she said, “and I look forward to giving back to it.”

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