If the Mohawk community of Kahnawake wanted a way to end up on the six o’clock news, attempts to evict 26 non-Natives from their reserve was the perfect way to do it. As most readers now know, those not meeting the Kahnawake reserve’s community membership code– many are involved in romantic relationships with Mohawks and some are long-time caregivers for resident members — were given 10 days to leave.
As of this writing, only 12 of the 26 have responded. Now the band council says they will publicly post the names of those who have not left if they fail to meet this deadline.
The core, obvious problem in Kahnawake is that Pierre Trudeau’s famous admonition that the “state has no business in the bedrooms of the nation,” has been tossed out as Mohawk leaders openly discourage Mohawks from entering into relationships with non-Mohawks.
What’s the justification? After all, it’s not as if a non-Native community could or should say to Aboriginals married to Caucasians “you don’t belong here.” But the Mohawk Council pointed to its Kahanawake Membership Law, adopted in 2003, which only allows for non-Mohawk members who have lived on the reserve since before 1981.
The Mohawks could do that because of a 1985 change in federal policy which allowed local reserves to set “membership” criteria; Ottawa separated federal Indian status from band membership so membership has been determined by local First Nations ever since.
So, should the debate end there?
No. The Kahnawake council has indicated they will change their membership law, although whether it will conform to human rights norms is unclear. The Mohawk membership code should respect human rights standards in the manner as must other any municipality. The premise that government bodies may do whatever they wish to residents living on a given territory is unacceptable. In an international context, a state cannot use “national sovereignty” to trump human rights. So, why are human rights violations allowed in Canada under the “trump card” of Aboriginal self-government?
Regrettably, the national Aboriginal leadership has been silent. The Assembly of First Nations does not mention the Mohawk eviction issue. No major announcements have been made by the AFN or even the Congress of Aboriginal Peoples (CAP), which traditionally supports band governance reform.
The AFN only mentions Aboriginal education funding issues and one of the last releases by CAP is about the Vancouver Olympics. These organizations are out of touch. The only organization courageously leading on the issue is Quebec Native Women, a more obscure organization with little clout in the policy-making sphere.
Herein lies another problem: Aboriginal leaders and band governments hardly ever criticize the bad actions of other Aboriginal bodies. There is a “circle the wagon” phenomenon that occurs where it is considered bad form to air dirty laundry. But that allows bad policies to go unchecked.
There are plenty of First Nation leaders doing the right thing. They should stand up for what is right and others may well follow, this as opposed to the habit of the Assembly of First Nation which makes bold statements in favour of the Universal Declaration of Human Rights when it suits them, but ignores those instruments in their opposition to evictions.
First Nations need a balanced solution that first respects the inherent civil rights of members and resident non-members alike and only after that, deals with the question of local citizenship.
Some hope new human rights legislation may help solve this issue. The Canadian Human Rights Act will apply to First Nation bands in June 2011. One can only guess whether non-Native residents living on Indian reserves will receive adequate protections through this mechanism. But don’t hold your breath given the legislation includes an “interpretive” clause required courts and tribunals to take Aboriginal collective interests into consideration in applying the law; that big escape clause could require those bodies to shield these edicts from challenge on grounds of “community survival.”
Another possibility is First Nation human rights codes, an idea worthy of exploration. But in the meantime, First Nation leaders should be out in front of this. The national leadership, as well as individual band leaders, should state band membership codes should always be subject to the Charter of Rights and Freedoms and international human rights norms.
Instead of being silent on the Mohawk affront to basic civil rights, Aboriginal leaders must oppose the actions of any band that engages in such behaviour, behaviour which most of us thought disappeared in the American south decades ago, and never thought it would reappear north of the 49th parallel.