Editorial: Kahnawake evictions: sovereignty v. Constitution

At first blush, the expulsion of non-natives from a Quebec reserve appears an obvious affront to human rights.Controversy, in fact, has been swirling ever since the band council in Kahnawake moved to evict non-natives living on the reserve southeast of Montreal. The evictions, officials there argue, are about preserving Mohawk identity by limiting the presence of outsiders.

The key targets of the evictions are non-natives in relationships with band members. The council, then, is essentially taking a shot at mixed marriages.

The band does, of course, have points to make. Fighting against assimilation is a legitimate goal. At the same time, under federal law, First Nations have the right to decide who is eligible for band membership, a key element of self-government. As a result, federal officials have so far kept their distance from the issue.

Nevertheless, the evictions are disturbing. Mixed marriages are a reality in our society, which makes any effort to fight against them a fruitless task. The Kahnawake council could, of course, argue that rather than battling against that tide, it’s simply exercising its right to decide who gets band membership, but of course the effect of the evictions is to punish those who marry outside native bloodlines.

At the same time, it’s questionable whether those efforts are the best way to preserve Mohawk culture anyway. The mere presence of non-natives doesn’t necessarily imperil Mohawk identity. Obviously, we live in a pluralistic society where culture is about more than bloodlines and ancestry. There are other less disturbing ways to promote it than reverting to race-based policies.

The legal issues are trickier, however. The evictions have raised the prospect of a constitutional challenge given their clearly discriminatory nature. But governments typically take a hands-off approach to these issues given the sensitivity around native sovereignty and self-government, both of which band councils have a legitimate interest in protecting.

Nevertheless, the Kahnawake move is yet another example of the continuing clouds that linger over those very issues. On the one hand, it raises questions about the ways in which the Constitution applies to native reserves while on the other hand evoking concerns over sovereignty and cultural rights.

Of course, the whole area of native rights has been a murky one for some time, especially since politicians veered away from dealing with constitutional issues following the Meech Lake and Charlottetown Accord battles of the 1990s. Once again, we’re left with few answers.

It would be nice to think cases such as the Kahnawake evictions will prompt a search for clarity in that area. But, given other examples of similarly tricky disputes - Caledonia comes to mind - it seems likely we’ll be waiting a long time for that. Still, that doesn’t mean we shouldn’t hope things were different.

- Glenn Kauth

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