Waneek Horn-Miller had just begun construction on a house for her young family on the Kahnawà:ke Mohawk Territory near Montreal when she received a troubling letter.
Signed by the band council, it requested that she “respect the law and the will of the people in the community by leaving the territory”.
The territory had long been her home. She had bled for it: as a youth, Horn-Miller nearly died after sustaining a stab wound on the front lines of the Oka Crisis, a 1990 land dispute that grew into a standoff between Canadian soldiers and Mohawk protesters. And she had competed for it: as a Canadian Olympic athlete, she often wore traditional clothing to represent the Mohawk Nation.
But her husband, Keith Morgan, is not Mohawk. And in marrying him, she had breached a longstanding rule of the community, informally known as “marry out, get out”.
As tensions grew and her name appeared on an eviction list in 2014, she acceded to the demands of the community. She and her family moved to Ottawa.
This week, a judge in Quebec struck down the controversial order which had snared Horn-Miller and 16 other plaintiffs. The province’s superior court found that the rule violates Canada’s Charter of Rights and Freedom.
“This is a kind of rule that wouldn’t be acceptable anywhere else in Canada, because it’s very clearly unconstitutional,” said Geneviève Grey, who was part of Horn-Miller’s legal team.
Justice Thomas Davis rejected arguments that the rule – originally implemented in 1981 – was an effective way to preserve Mohawk culture. Instead, he found the it was “grounded in stereotypical belief that non-native spouses will use the resources and land” of the community.
“In fact, most, if not all, of the non-native spouses or the family members who have been denied membership … have embraced the Mohawk culture,” he wrote.
“Marry out, get out” is rarely enforced, despite being codified as law. But a number of plaintiffs told the court they were harassed and often feared for their personal safety.
Terri McComber said the intimidation became “unbearable” after she married Marvin McComber, a member of the band. She testified that protests were held outside the family home; she was known as “the white woman”, her children were called “half-breeds”.
The judgment also exposed difficult questions surrounding federal jurisdiction and indigenous autonomy. “Indigenous groups really push back against jurisdiction that is unilaterally imposed upon them,” said Naiomi Metallic, a law professor at Dalhousie University. Such clashes over jurisdiction are often the result of communities grappling with rapidly diminishing lands, resources and disappearing traditions, she said.
The Kahnawà:ke reserve on the southern banks of the Saint Lawrence river has 8,000 members on 53 sq km of land, – about a third of its original territory.
Metallic said roughly a third of First Nations in Canada have rules of some kind to determine who enjoys benefits of treaties.
The Mohawk Council of Kahnawà:ke is currently reviewing the decision.
“Obviously we maintain the position that matters that are so integral to our identity have no business in outside courts,” said Grand Chief Joseph Norton in a statement. “However, a decision on the case has been rendered. We are now taking the time to analyze the decision and will inform the community further in the coming days.”
The law remains divisive within the community, and some residents strongly support it. Others simply comply.
Terry McComber (no relation to Terri McComber), is a Mohawk woman who recently married a non-native man. “He would never be able to live here. And I wouldn’t want him to live here. We belong on the outside now.”
The decision wasn’t easy, she said: “Kahnawà:ke is still my home in my heart.”