Mohawk artist Skawennati Fragnito.Roger Lemoyne/Roger Lemoyne
Skawennati Fragnito’s media art often involves playful, positive scenarios for the future of Indigenous peoples. Her text-based piece, Imagining Indians in the 25th Century, includes this entry for 2102: “Senate [of Canada] is reformed on the model of the Clan Mothers.”
Ms. Fragnito’s past and current relations with her Mohawk community at Kahnawake are more painful. She and several in her family aren’t considered members. According to the Mohawk Council of Kahnawake (MCK), that means they can’t live or be educated on the reserve near Montreal, or even be buried there.
Ms. Fragnito was one of 16 plaintiffs in a recent court challenge to a section of the Kahnawake Membership Law that denies residency and services to Mohawks living with non-Indigenous partners. Last week, Justice Thomas M. Davis of the Superior Court of Quebec ruled the provision discriminatory under the Canadian Charter of Rights and Freedoms.
The ruling was widely reported as a blow to the MCK’s attempts to regulate who can live on reserve. But the judge declined the plaintiffs’ request to order the council to put them on its membership list, saying “the MCK has a duty to govern on the reserve” and must be allowed to fix its own law.
It has been working on that for more than a decade, through a laborious process of community consultation. During that time, there has been no procedure for people to apply to be instated or reinstated.
Ms. Fragnito hasn’t lived on the reserve since she was 3. Her mother, Brenda, another plaintiff in the case, left in 1972, after marrying a non-Indigenous man. Under the Indian Act at the time, the marriage erased her Indian status. That sexist provision was reversed in 1985, but Brenda Fragnito failed even to get a hearing about regaining a place on the MCK list.
Skawennati Fragnito has no doubt that she and her mother qualify under the current membership law. She believes the MCK is perpetuating a colonial tradition of defining aboriginal individuals out of their Indigeneity.
“They’re doing exactly what the Indian Act was trying to do to us,” said Ms. Fragnito, who lives in Montreal. “I still consider myself Mohawk, but I have to work at it. It’s not like when you’re growing up near your family on reserve, immersed in the culture.”
Justice Davis’s nod to the authority of the MCK looks like a judicial endorsement of Indigenous self-government. But the MCK isn’t the only body at Kahnawake that claims the right to regulate the community.
The Mohawk Nation at Kahnawake, a more traditional organization, “will not recognize any legislation passed through the MCK Community Decision-Making Process,” according to a statement on its website. “The MCK was born from Canada’s Indian Act and remains an extension of this colonial power, whose only strength stems from Canadian recognition and funding.”
Only about one-quarter of eligible Kahnawake voters participate in MCK elections. A recent community meeting on the membership law drew a dozen residents, which is apparently typical. Community-based decision-making sounds great, but how representative can it be when many people don’t show up or vote, and others deny the legitimacy of the body in charge?
The root of the trouble is not ultimately among the people, but in the history and the land. Kahnawake has lost about half of its former territory. Its riverfront was traumatically expropriated in the late 1950s for the St Lawrence Seaway. Neighbouring municipalities constantly nibble at its boundaries.
“We always feel under attack, that we’re going to be squeezed out of our little postage stamp,” MCK spokesman Joe Delaronde says. A 2011 survey asked residents: “Do you think if non-natives consistently become part of the community that over time this would give the federal government enough power to take away our land and Mohawk status?” Eighty-five per cent said yes.
Justice Miller rightly said that his court “should not interfere” in a matter rooted in cultural survival. He was also on point when he said “the resolution of the conflict is ultimately a task for the people of Kahnawake, all of them.” That last bit will be the hardest, and the most important.