Advocates for the Rule of Law
Seven members of the Kahnawake Mohawk band have brought a lawsuit, alleging that they were evicted from their homes on the reserve for having married non-natives. The plaintiffs each claim damages of $50,000 and also seek a declaration that “non Native spouses are entitled to reside within Kahnawake with their spouses and children, and that the children retain native status in the band notwithstanding the fact that one of their parents is not a member.”
The background of the lawsuit is discussed here. The band has long practiced a policy of “marry out, stay out,” and it has recently begun to enforce this policy with vigor. According to Grand Chief Michael Delisle, the policy is necessary to preserve “not only culture and language and identity, but who we are as a people.”
While the Constitution recognizes certain Aboriginal rights, those rights must be read in harmony with the individual rights that all Canadians enjoy, native and non-native alike. A government policy that tacitly permits this kind of discrimination should not be able to withstand Charter scrutiny. Canadians courts have broadly interpreted section 15 of the Charter, which guarantees equality before and under the law, and it stands to reason that a policy which strikes at the very heart of what section 15 was designed to protect would likewise be struck down.
Equality before the law is more than just a Charter right; it is an essential feature of the rule of law, which dictates that everyone must be subject to the same laws. The ARL will follow this lawsuit with great interest.
