505-17-007605-142PAGE : 1
Miller c. Mohawk Council Of Kahnawà:ke / 2018 QCCS 1784SUPERIOR COURT
CANADA
PROVINCE OF QUEBEC
DISTRICT OF / LONGUEUIL
No: / 505-17-007605-142
DATE: / April30, 2018
______
PRESIDING: / THE HONOURABLE / THOMAS M. DAVIS, J.S.C.
______
WANEEK MILLER
and
KEITH MORGAN
and
TERRI MCCOMBER
and
MARVIN MCCOMBER
and
JOHN JOSEPH BARRY STACEY
and
NANCY MONTOUR
and
JOSEPH LANNY DELISLE
and
MARIE STACEY
and
NEKA MCCOMBER
and
OMELIS RIVERO LOPEZ
and
BRENDA FRAGNITO
and
CHRISTOPHER FRAGNITO
and
SKAWENNATI TRICIA FRAGNITO
and
NICHOLAS FRAGNITO
and
LOUIE FRAGNITO
and
ELIZABETH CUROTTE
Plaintiffs
v.
MOHAWK COUNCIL OF KAHNAWÀ:KE
Defendant
and
ATTORNEY GENERAL OF CANADA
and
ATTORNEY GENERAL OF QUÉBEC
Impleaded parties
______
JUDGMENT
______
1.OVERVIEW
[1]The Mohawk people of Kahnawà:ke are divided over membership. This Court is charged with determining at least some of the legal issues surrounding the Kahnawà:ke Membership Law (“KML”) (Exhibit D-1). Unfortunately its judgment will likely not resolve the internal conflict over membership in the Kahnawà:ke Community(Community). As the members of the Community have said themselves, the resolution of the conflict is ultimately a task for the people of Kahnawà:ke, all of them, working within the framework of the present judgment.
[2]That being said, contrary to the position of the Mohawk Council of Kahnawà:ke (“MCK”), if Plaintiffs’Charter rights have been violated, the intervention of the Court is necessary, as the Charter rights of all Canadians, including indigenous Canadians, should be protected.
[3]The KML requires members ofthe Mohawk Nation of Kahnawà:ke, who marry a non-indigenous person to leave the Kahnawà:ke Reserve or Territory.[1] Does it breach the rights of these individuals under either the Québec Charter of Human Rights and Freedoms[2] (“Québec Charter”) or the Canadian Charterof Rights and Freedoms[3](“Canadian Charter”), or, perhaps, both?
[4]In the event that the Court concludes that the Charter rights of some or all of the Plaintiffs have been breached, is the MCK liable in damages toward these individuals? Even if no Charter violation is found is the MCK responsible for the harassment that certain of the Plaintiffs allege to have suffered?
[5]Is this Court competent to reinstate the memberships of certain Plaintiffswho have been excluded from the Band or denied membership in it?
[6]Finally by way of introduction, the MCK did not argue in the present matter that it has the right to autonomous government nor did the MCK adduce into evidence facts in support of its historical inherent right to autonomy and to control membership. It requested that the Court not adjudicate upon these issues.[4]
2.CONTEXT
2.1The Admissions and the Membership Law
[7]The parties have agreed on a number of admissions. Some of these warrant discussion in order to better comprehend the dispute.
[8]The First Nation is governed by the Band Council, a body duly recognized under the Indian Act(the “Act”).[5] It is made up of 11 Chiefs and one Grand Chief, elected for a three year term[6] by members duly registered on the Kahnawà:keKanien'kehá:kaRegistry (“KKR”). About 25% of eligible voters cast their ballots.
[9]In 1981, the Community passed a moratorium on marriagesbetween natives and non-natives as of May 22, 1981(“Moratorium”)(Exhibit D-26). The Moratorium confirmed that those in mixed marriages were unable to benefit from a significant number of services including residency in the Territory.
[10]The Moratorium set May 22, 1981 as the date after which marriage to a non-native would disqualify a member from receiving benefits administered by the MCK. It refers to the loss of one’s Band number and the loss of the right to reside in Kahnawà:ke, among other lost services.
[11]The Kahnawà:ke Mohawk Law (Exhibit D-27) was adopted in 1984 and is much less detailed than the 2003 law, now before the Court. It provides for the loss of residency, land allotment and land rights for those who marry non-natives. It does not specifically refer to their membership being revoked.In effect, it confirmed the conditions set out in the moratorium
[12]Then in 2003 the current Kahnawà:ke Membership Law was adopted. The impugned provisions, sections 20.1 and 20.2 read as follows:
20.1A member who:
a)married, or marries, a non-Indigenous person after May 22, 1981, or
b)commenced, or commences, after May 22, 1981, a common-law relationship with a person who has no Kanien'kehá:ka or Indigenous lineage,
will have their entitlement to receive any of the benefits and services to which they would otherwise be entitled as a member of the Kanien'kehá:ka of Kahnawà:ke, suspended for so long as they remain married or in a common-law relationship with the non-Indigenous person.
20.2Notwithstanding section 20.1, when the non-Indigenous person referred to in section 20.1 was raised in the community of Kahnawà:ke, the member's right to reside within the Territory will not be suspended.
[13]It is common ground that the MCK has not applied to have control of its own membership registry as permitted under the Indian Act.
[14]In fact the registry under the Indian Act contains almost twice the number of Kahnawà:keMohawks as the KKR.
2.2Other Relevant Sections of the KML
[15]To fully understand and decide on the issue before it, the Court cannot limit itself to a review of sections 20.1 and 20.2. Other sections are relevant.
[16]Children from mixed marriages are treated differently than children from indigenous marriages in the KML. Section 11.1 governs the situation of children born to indigenous parents:
11.1Every child, through their parent or guardian, is eligible to apply to become a member at birth if he or she is identified as a Kanien’kehá:ka of Kahnawà:ke and if he or she satisfies all of the following criteria:
a)is born of one member,
b)is born of the other person who has Indigenous lineage,
c)has four (4) or more Indigenous great-grandparents,
d)is identified as having, or is willing to avail themselves of the established Kahnawà:ke process of seeking a Kanien’kehaka clan, and
e)who is not on another Indigenous community membership list.
[17]Section 11.4 governs those born of mixed marriages:
11.4 A person who is not born of two (2) members, is eligible to apply for membership of the Kanien'kehá:ka of Kahnawà:ke, at the age of eighteen (18) if he or she satisfies the following criteria:
a)has at least four (4) Kanien'kehá:ka great-grandparents,
b)speaks, or is committed to learning Kanien’keha,
c)respects mother earth,
d)is identified as having, or is willing to avail themselves of the established Kahnawà:ke process of affiliation in seeking a Kanien'kehá:ka clan,
e)has and maintains ties with the community of Kahnawake, and
f)honors the customs and traditions, and must comply with the codes, laws and regulations of the Kanien'kehá:ka of Kahnawà:ke.
[18]Other sections relevant to the debate include:
15.1Subject to Kahnawà:ke's laws, regulations and policies, members of the Kanien'kehá:ka of Kahnawà:ke have the following, entitlements, and privileges with regards to benefits and services:
a)to reside within the Territory,
b)to participate in the selection of Kahnawà:ke leaders,
c)to seek and hold a leadership position,
d)to own and transfer to other members, interests in lands within the Territory,
e)to receive education services,
f)to own and operate a business,
g)to receive housing assistance,
h)to receive services from social, health, welfare and economic departments or programs of the Mohawk Council of Kahnawà:ke,
i)to be buried on land within the Territory.
[…]
20.6A member who commits a material breach of:
a)any of the criteria on which his or her membership is based,
b)any of his or her responsibilities as a member, as set out in this Law,
c)the conditions, limitations or restrictions that are attached to his or her membership, if any,or,
d)their Member's Pledge,
may have their membership suspended or revoked.
2.3The Application of the KML
[19]The KML has been applied inconsistently since its adoption and is now under review. Former Grand Chief Michael Ahrihron Delisle explained that the real focus has been to encourage compliance, but that up to the present no one has been forcibly removed from the Reserve.
[20]Requests to be instated or reinstated onto the KKR are also a subject of controversy. Section 8 of the KML provides that the Council of Elders is the authority charged reviewing and deciding these applications, as well as those related to revocation of membership. Its role was suspended in 2007, although the KML was not modified, with the result that the requests of several people to be reinstated onto the KKR are in abeyance. By the same token, no one has been removed from the KKR since 2007.
[21]Another effect is that former members, who have been removed from the KKR have been denied services for members of their families. Exhibit D-26, an undated document, sets out the consequences of marriage to a non-native:
As of that date, any Indian man or woman who marries a non-Indian man or woman is not eligible for any of the following benefits that are derived from the Kahnawake Mohawk Territory and/or as administered by the Mohawk Council of Kahnawake. As well, status cards will not be issued to divorced non-Indian women or renewed if lost.
Band number
Residency (to live in Kahnawake)
Land allotments
Housing assistance – loan or repair
Welfare – in Kahnawake only
Education – in Kahnawake only
Voting privileges – in Kahnawake only
Burial
Medicine – in Kahnawake only
Tax Privileges – in Kahnawake only
[22]One way that compliance with the KML has been encouraged is through letters to “offending” parties. Letters were sent to several people in 2010, including Waneek Miller. Others were sent in 2014 and 2015 (Exhibit P-5), based on a list of about 70offending residents. People were advised that they had no right to live in the Territory. Some were put on notice to vacate.
[23]Some Mohawks, Krissy Goodleaf and Amanda Deer being two examples, have left of their own volition. Others like Marvin and Terri McComber have decided to stay and face the consequences.
[24]The consequences of non-compliance, as of yet, have not been formally determined by the MCK. However, to some degree the Community has taken matters into its own hands. Within the Community there is a “Grassroots”organization that has organized protests, largely peaceful, to encourage non-compliant members to leave the Territory.
[25]Protests took place at the homes of Krissy Goodleaf, Marvin McComber, and Amanda Deer in 2014. These protests involved a degree of vandalism which was not sanctioned by the Kahnawà:kePeacekeepers.
[26]The Grassroots also organized a letter campaign. Mohawks in mixed marriages, including many long term residents of Kahnawà:ke were delivered letters “insist[ing]that your Non-Native partner, co-habitant or tenant vacate the territory no later than May 1st, 2015” (Exhibit P-2).
[27]The MCK does not appear to have been aware of the content of these letters, but was aware of the campaign, as it encouraged that the letters be sent by registered mail rather than by hand delivery (Exhibit D-22).
[28]In 2014 there was also a sign campaign, perpetrmélangeated by unidentified Community members. The signs reiterated that Mohawk Land was for Mohawks, imploring non-natives to leave Kahnawà:ke (Exhibit P-29).
[29]Social media has also been used to target natives married to non-natives. A pungent example is the post targeting Waneek Miller, relating the reason for the law suit to a vulgar sexual reference to Ms. Miller’s partner (Exhibit P-27).
[30]The issue of children in mixed marriages gives rise to both practical and legal issues. There is a degree of bullying that occurs in the schools as some children refer to these children as half-breeds. Many children of mixed marriages have been denied services available to other indigenous children on the Reserve. One area where services are denied is education. Children from mixed marriages have been denied funding and apparently are unable to attend Mohawk language schools.
2.4The Kahnawà:ke Reserve
[31]The original land grant to the Mohawks of Kahnawà:ke encompassed a much larger territory than the current Reserve. Land was expropriated for theSt.Lawrence Seaway and for other purposes. The Nation is now negotiating with Canada to regain some of its original territory. If there is an agreement, it would be subject to referendum, which could be difficult to manage given the discrepancies between the KKR and the membership list administered under the Indian Act.
[32]The Reserve is also criss-crossed by a number of roads and the South end of the Honoré-Mercier Bridge is on the Reserve.
[33]The socio-economic climate is challenging. However, the approximately 90,000cars that pass throughthe Reserve every day do generate a certain economic benefit. The people like to have their own businesses, though many males still work as iron workers in the construction trade.
[34]An important part of the socio-economic climate are the institutions operated by the MCK. These include a hospital and some schools.
[35]About 1,000 people from outside the Reserve have jobs on it.
[36]The language is in a resurgence. Mohawk immersion classes are being offered to members.
[37]The beginnings of the resurgence perhaps date back to 1978. At that time all native children were pulled out of Howard S. Billings High School and repatriated to the Kahnawà:keSurvival School.
[38]The Reserve has undergone a major infrastructure upgrade, working with grants under the Indian Act.
[39]The legal system is somewhat of a mélange of Canadian law and Mohawk law. Some of the Chiefs believe that Mohawk law would prevail over international law. Certain Canadian laws are followed, including the Criminal Code, although for some matters, such as gaming, local law is applied. Divorce and family law matters follow Québec and Canadian law as do certain property matters.
2.5The Affected Individuals
2.5.1Brenda Fragnito
[40]Mrs. Fragnito does not live on the Reserve, although she was born there in 1946. She married a non-indigenous manin 1968 and they left Kahnawà:ke in 1972. Her loss of membership was not initiated by the Band. Rather, she lost it due to a provision of the Indian Act, whereby indigenous women who married non-indigenous men lost their status under the Act. This legislation was amended in 1985 to give women back their status under the Act.
[41]Following this Mrs. Fragnito attempted to be reinstated into the Kahnawà:ke Band. On September 16, 1986, she was advised that her application would be deferred and kept on file, pending review of the KML as it then existed. She made a new application in 2001 and received essentially the same response (Exhibit P-7).
[42]Despite not being a member of the Band, Mrs. Fragnito and her husband operated a furniture store on the Reserve, beginning in 1994 and lasting for approximately 12 years.
[43]She owns family land on the Reserve and fearful of expropriation encouraged her son Christopher to obtain his membership in the Band in order to protect the title. He did obtain it and has built a home on this land.
[44]For many reasons Mrs. Fragnito would like to regain her status; one important factor would be to have the chance to be buried in the indigenous burial ground. She has requested a meeting with the Council of Elders, but it has not occurred.
2.5.2Christopher Fragnito
[45]He applied for membership, having heard through an uncle of the possibility that the family land might be expropriated. Ironically, his mother attended the hearing before the Elders with him, but her situation was not discussed.
[46]Christopher is categorical that he should not have been required to go through the process to be recognized as a member of the Band, as it goes without saying, given that his mother is Mohawk.
[47]He now lives on the Reserve in relative peace, although he has been called a half-breed.
2.5.3Skawennati, Nicholas and Louie Fragnito
[48]They are the sister and brothers of Christopher. None of them live on the Reserve at this time, nor have they attempted to obtain membership status in the Band. All express the view that they should not have to apply to be members, as they identify as Mohawk and having a Mohawk mother they should be on the KKR without any questions being raised.
[49]Skawennati’s outlook on the situation is different, in that she has made significant efforts to immerse herself in the culture and to become more familiar with it. With her children, she participated in the Peacemakers’ Journey in 2012, visiting the Five Nations. She has worked teaching Mohawk youth.
[50]She has never felt unsafe on the Reserve, but was refused money for education. Skawennati was able to get money from Indian Affairs. She does not benefit from other services.
[51]Skawennati is interested by the membership situation and has attended at least one meeting in 2013, where it was discussed. She was not permitted to speak.
[52]She would like to move back to the Reserve, but is concerned, due to her spouse being non-native. The communications between the Band and her mother (Exhibit P-7) are perplexing for her and seem to be a part of her reasons for not returning. Though the media (Exhibit P-8), Skawennati is also aware of the protests in front of the homes of Amanda Deer and Mrs. and Mr. McComber. Again these situations allow her to consider that a return to live on the Reserve would entail a degree of risk for her and her family. Her partner has also indicated that he would not be comfortable moving to the Reserve.
2.5.4JohnBarry Stacey
[53]He is a Mohawk who was willed the family home. He moved back to the Reserve in 2012.