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Volume 2, (Winter 2016) Article 1 UNRAVELLING THE TWO-ROW WAMPUM: LIMITING FIRST NATIONS’ MEMBERSHIP RULES IN CANADA Amy Barrington Copyright © Windsor Review of Legal and Social Issues 2016 All rights reserved. No part of this journal may be reproduced in any form or by any electronic or mechanical means, including information storage and retrieval systems, without permission from the editors. Reproduction of this material without authorization is a violation of copyright. Citation Information Amy Barrington, “Unravelling the Two-Row Wampum: Limiting First Nations’ Membership Rules in Canada” (2016) 2 Windsor Rev Legal Soc Issues—Digital Companion 1.

Volume 2 Unravelling the Two-Row Wampum 1

UNRAVELLING THE TWO-ROW WAMPUM: LIMITING FIRST NATIONS’ MEMBERSHIP RULES IN CANADA Amy Barrington*

I. INTRODUCTION

How important is community acceptance? For Canada’s First Nations peoples whose band governments are the gatekeepers to benefits and services, it might seem desperately important. The criteria by which Canada’s First Nations determine community membership is differentiated. Even if one self-identifies as being a member of a First Nation, there remains the question of whether they will be recognized as belonging to that community, such that they receive benefits and services provided under section 35 of the Constitution Act, 19821 and the Indian Act.2

While the Supreme Court of Canada has not explicitly affirmed the right to self-government as a freestanding right protected under section 35 of the Constitution Act, 1982, the court has affirmed elements that might comprise such a right.3 Other Canadian courts and tribunals have also produced a substantial body of case law in support of its existence. The right to self-government is empty unless Aboriginal communities participate in acts of such governance that were integral to their culture prior to European contact. It could be argued that the determination of community membership is one such expression of the right to self-government.4 Many First Nations exercise that right through the Indian Act. The issues are whether and how that right is limited by Canadian common law.

This essay seeks to address how Canada can reconcile discriminatory First Nations membership codes administered under the Indian Act with Canadian anti-discrimination laws. This essay will (1) introduce this tension and demonstrate what is at stake through consideration of a case currently before the Canadian court system; (2) review how the Canadian Human Rights Tribunal (CHRT) resolved a pertinent claim against the Mohawk Council of the Kahnawake (MCK) in 1998; (3) compare theoretical approaches that offer explanations of, and prescriptions for, how Canadian courts and the CHRT should reconcile First Nations’ section 35 rights in relation to acts of self-government, exercised through the Indian Act, with the liberal ideals underlying the Canadian Charter of Rights and Freedoms5 and the Canadian Human Rights Act,6 assessing the 1998 CHRT decision through these lenses; and (4) provide a

* Amy Barrington graduated from the University of New Brunswick, Faculty of Law in 2015. She holds a Master of Arts degree in Journalism (2009) and a Bachelor of Arts with an Honours Specialization in Political Science from Western University (2008). She extends her sincere thanks to her Multiculturalism and the Law professor, Dr. Howard Kislowicz, for his academic guidance and support in the development of this essay. 1 Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), c 11 [Constitution Act, 1982]. 2 RSC 1985, c 1-5 [Indian Act]. 3 R v Pamajewon, [1996] 2 SCR 821, 1996 CanLII 161 at para 24. 4 John Borrows, “Tracking Trajectories: Aboriginal Governance as an Aboriginal Right” (2005) 38:2 UBC L Rev 285 at 291-92 [Borrows]. 5 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. 6 RSC 1985, c H-6 [CHRA].


conclusion regarding how aspects of these theories can be synthesized to produce a constructive and just mechanism for the reconciliation of Canadian law and First Nations’ law going forward.

In this essay, I advocate for the use of a modified justificatory approach to assess whether a First Nation’s discriminatory membership code is justifiable under Canadian law. If the law purports to infringe on women’s equality rights, Canadian law should impose a limitation on a First Nation’s autonomy in order to protect these rights, as such discrimination cannot be justified in light of Canada’s historical context.

II. AT STAKE: WANEEK HORN-MILLER’S EVICTION Waneek Horn-Miller is a Mohawk rights activist and former Olympian from the Kahnawake First Nation, located on the south shore of the St. Lawrence River near Montreal. She is in a domestic relationship with a non-Mohawk man with whom she has two children. Horn-Miller says she has been the subject of harassment from members of her community because of her relationship and has been the target of an anonymous petition demanding she move away from the reserve.7 On October 30, 2014, Horn-Miller and six other members of the Kahnawake Mohawk community served the MCK with a notice of action in the Quebec Superior Court in relation to the provisions of the MCK’s membership law banning Mohawk members married to non-members from living on the reserve.8 By mid-January 2015, an additional nine plaintiffs joined the action.9 The plaintiffs seek several declarations, including an admission that the membership law violates section 15 of the Charter, abolition of the law, and $50,000 in damages for each plaintiff.10 The trial is not expected to begin before 2017.11 Horn-Miller says that the 1981 law, a product of the Indian Act, is designed to destroy Mohawk culture by distracting members with entitlements. Kahnawake Grand Chief Michael Delisle told CBC News, “[a]ll we are trying to do is preserve, not only culture and language and identity, but who we are as a people.”12 This case demonstrates that the question of how Canada should balance First Nations’ governance rights against those protected under Canada’s anti-discrimination laws is live in both a political and legal sense, and goes to the core of how the country chooses to define Canadian liberalism. I now turn to a 1998 CHRT decision to illustrate how adjudicators have previously balanced these apparently conflicting rights.

7 Kate McKenna, “Former Olympian Waneek Horn-Miller among Mohawks suing Kahnawake council” CBC News (2 November 2014), online: [McKenna]. 8 Mohawk Council of Kahnawake, News Release, “MCK served with lawsuit concerning the eviction of members and their non-native spouses” (31 October 2014), online: [MCK’s 31 October 2014 Press Release]. 9 Mohawk Council of Kahnawake, News Release, “MCK updates community on status of ‘Membership lawsuit’” (30 April 2015), online: [MCK’s 30 April 2015 Press Release]. 10 MCK’s 31 October 2014 Press Release, supra note 8. 11 MCK’s 30 April 2015 Press Release, supra note 9. 12 McKenna, supra note 7.


III. IN REVIEW: JACOBS V MOHAWK COUNCIL OF KAHNAWAKE

Parliament created the Canadian Human Rights Commission (CHRC) in 1977 to administer the CHRA. This independent body accepts and investigates complaints made in relation to CHRA. In some cases, the CHRC refers such matters to the CHRT, a tribunal that Parliament created the same year to issue binding decisions on matters relating to the CHRA.13

In the 1998 decision of Jacobs v Mohawk Council of Kahnawake, the CHRT deliberated on a complaint lodged by Peter and Trudy Jacobs, alleging that the MCK discriminated against them and their children by refusing benefits and privileges on the basis of national or ethnic origin, race, colour, and family status, in violation of section 5 of the CHRA.14 Peter was an adoptee who was raised as a Mohawk, attended Mohawk school, married a Mohawk woman with whom he had children, and generally lived a Mohawk lifestyle. However, he was removed from the band list administered by MCK under the authority of section 10 of the Indian Act due to his failure to satisfy the 50% Mohawk blood quantum requirement, set out under the membership code. His wife, Trudy, was struck off the band list because she had married a non-Mohawk pursuant to the membership code. The membership code provided that their children would be able to apply for reinstatement on the band list, subject to approval by the council, following a review of their ancestry. Since their children satisfy the blood quantum requirement, the children could feasibly gain band membership status. Having been struck off the band list, the family was barred from accessing benefits and privileges administered by the MCK, despite all of them holding “Indian status” as administered by the Department of Indian Affairs and Northern Development (DIAND). However, due to funding arrangements between the MCK and the DIAND, only those on the MCK list were entitled to the rights and privileges provided for under the Indian Act. As a result, the Jacobs could not seek relief from the DIAND.15

In finding that the MCK “engaged and is engaging in acts of direct discrimination against [the family] by denying them services and access to services that are ordinarily available to members of the public,” and that “the defence of bona fide justification fails,”16 the CHRT ordered the MCK to allow the family access to “band number; residency; land allotment and land rights; housing assistance - loan, repair, servicing or related services; welfare; education; burial; medicines; and, tax privileges.”17 This order included everything that the Jacobs and the CHRC had requested, except for access to voting privileges in MCK elections, which the CHRT refused to include in its remedy. The CHRT notes that while it could make a declaration that the MCK acted in contravention of the CHRA and compel the MCK to administer services under a mandatory order, it could not force the community to accept the family. The CHRT considers that belonging is “a matter for the mind, the soul and the spirit” and beyond the reach of Canadian law.18

13 Canadian Human Rights Tribunal, “Jurisdiction - Canadian Human Rights Act”, online: ; Canadian Human Rights Commission, “About Us”, online: . 14 [1998] 3 CNLR 68, 1998 CanLII 3994 at 1 [Jacobs]. 15 Ibid at 5. 16 Ibid at 37. 17 Ibid at 38. 18 Ibid.


IV. THEORETICAL PERSPECTIVES: RECONCILING CANADIAN LIBERALISM WITH ABORIGINAL LAW (a) JUDICIAL APPROACHES

There is a range in academic opinion about the degree to which the Canadian government should refrain from interfering in the Aboriginal right to self-govern (or exercise self-governance) when membership rules appear to infringe on the anti-discrimination laws that protect non-Aboriginal Canadians. In particular, different frameworks are emerging regarding how courts and the CHRT should reconcile section 35 with these laws. This affirms and protects Aboriginal and treaty rights with liberal values enunciated in the Charter, especially those protected under section 15, which guarantee protection against any form of discrimination under the law on the basis of “race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”19 These frameworks can be applied by both the CHRT in adjudicating on complaints made under the CHRA, as well as by judges in Canadian courts, as we begin to see cross-pollination of interpretive principles.20

Dr. Howard Kislowicz, assistant law professor at the University of New Brunswick, suggests that courts (and presumably the CHRT) confronted with this clash of rights are left in a “double bind”:

Judges may feel that if they endorse a group's exclusionary practices, the court and state become complicit in what would clearly be considered discrimination if carried out by a public agency. On the other hand, a court that prohibits a particular membership practice may interfere with group members' constitutional rights in a way that impacts members of some religious or cultural communities more than others.21

Kislowicz provides three judicial strategies emerging from Canadian, American, and

British case law for deliberating on such issues. The first strategy is group-based autonomy, which promotes a hands-off approach to group membership codes, thus providing for an environment where illiberal rules can thrive.22 Citing American case law, Kislowicz highlights the judicial justification for such an approach: any interference with the authority of the tribal court is an infringement on the right to self-government and interferes with the group’s capacity to maintain its cultural identity.23 This non-interventionist approach, which favours autonomy of the self-governing tribe, is steeped in the international law doctrine of state sovereignty and the principle of equality of states.24 This approach yields results that appear incompatible with Canadian ideals of liberalism as captured in Canadian anti-discrimination laws. The majority of the United States Supreme Court took this approach in Santa Clara Pueblo v Martinez in ruling that Native American tribes will enjoy sovereign immunity in the absence of an explicit grant of jurisdiction.25 The United States Supreme Court went one step further in Mississippi Band of 19 Supra note 5, s 15(1). 20 Kirsty Gover, “When Tribalism Meets Liberalism: Human Rights and Indigenous Boundary Problems in Canada” (2014) 64 UTLJ 206 at 239 [Gover]. 21 Howard Kislowicz, “Judging the Rules of Belonging” (2011) 44:2 UBC L Rev 287 at 289 [Kislowicz]. 22 Ibid at 295. 23 Ibid at 293, citing Santa Clara Pueblo v Martinez, 436 US 49, 98 S Ct 1670 at 1674 (1978) [Martinez]. 24 Ibid at 292. 25 Kislowicz, supra note 21 at 293, citing Martinez.


Choctaw Indians v Holyfield, in which Justice Brennan, writing for the majority, wrote, “[t]ribal jurisdiction…was not meant to be defeated by the actions of individual members of the tribe.”26 This statement suggests that the interests of the tribe as a cultural entity override those of its members, even if they attempt to exit the jurisdiction in a certain arena.

The second approach that advocates for group-based autonomy with procedural conditions also allows decision makers to bypass making normative judgments about the substance of the membership code in question. This approach focuses on ensuring fairness by setting up procedural conditions which Kislowicz says impose rules of two forms: (1) the community members must consent to their community’s membership rules; and (2) prior to expulsion of a member, communities must adhere to basic principles of natural justice: “notice, opportunity to make representations, and an unbiased trial.”27 Kislowicz points out that this approach allows courts to protect some rights of band members as they relate to exiting the jurisdiction without wading into the norms of a community. However, he notes that this concept of procedural fairness is developed through a liberal Anglo-Saxon legal tradition.28

Jeremy Webber, dean of the Faculty of Law at the University of Victoria, appears to support this approach in at least one context. He advocates for a parallel system of Aboriginal justice, emphasizing the “right to exit” the jurisdiction of the Aboriginal government. I suggest that maintaining a separate justice system is arguably one of the more pronounced expressions of self-government, given that liberty can be at stake. Webber may also consider it inappropriate and perhaps unjust for Canadian courts and tribunals to interfere with Aboriginal membership codes in at least some cases. He points to the federal nature of Canada to suggest that laws were never meant to apply uniformly to all Canadians and that equality in the Canadian context means recognizing differences. He further notes that criminal law is a matter of state jurisdiction in the United States.29 The issue arises, Webber concedes, in relation to the grounds of distinction between members: a provincial membership is determined on territorial considerations, while Aboriginal community membership is based on cultural grounds. Webber dismisses the idea that group membership is formed on biological or racial grounds, pointing to incidences of historical openness between groups.30 The stringency with which the MCK enforced their blood quantum membership code, notwithstanding the wealth of evidence suggesting Peter Jacobs was a “practicing” Mohawk, suggests that perhaps Webber’s theory of group membership focusing on culture, not race, may be more applicable in considering pre-colonial Aboriginal governance.

Webber’s idea that being a part of an Aboriginal group or First Nation was traditionally more about culture than race is supported by the evidence presented to the CHRT in Jacobs. Professor Elizabeth Jane Dickson-Gilmore, an assistant law professor at Carleton University, pointed to historic evidence that the Mohawk adopted non-Indians into their community.31 Waneek Horn-Miller, a Mohawk from Kahnawake, corroborates this concept, suggesting that the racial component of membership was a device of the Indian Act, serving to oppress and control a

26 Ibid at 294, citing Mississippi Band of Choctaw Indians v Holyfield, 490 US 30 at para 49, 109 S Ct 1597 (1989). 27 Lakeside Colony of Hutterian Brethren v Hofer, [1992] 3 SCR 165 at 195, 1992 CanLII 37. 28 Kislowicz, supra note 21 at 303. 29 Jeremy Webber, “Individuality, Equality and Difference: Justifications for a Parallel System of Aboriginal Justice” in Aboriginal Peoples and the Justice System: Report of the National Round Table on Aboriginal Justice Issues (Ottawa: Royal Commission on Aboriginal Peoples, 1992) 133 at 152 [Webber]. 30 Ibid at 153. 31 Jacobs, supra note 14 at 6.


cultural community. She says membership codes that rely on blood quantum criteria are antiquated and these membership provisions should be removed.32

Most, if not all, contemporary membership codes emphasize descent as a key component to group belonging. It is no longer merely “an undeniable coincidence between culture and race,” as Webber points out was the traditional norm,33 but colonial frameworks that led First Nations band councils to emphasize descent, and in particular, blood quantum requirements, as a mechanism to protect their nations under cultural attack. Webber’s suggestion that race or biology has nothing to do with Aboriginal group membership and rather, that membership is a matter of cultural particularity is problematic in a modern context, avoiding the difficult task of reconciling the Charter with the CHRA when different rules apply to Aboriginal peoples and non-Aboriginal peoples on the basis of race, nationality, or ethnic origin. Moreover, Webber notes that Aboriginal peoples can exercise consent to subjection to Aboriginal laws by opting out of Aboriginal institutions,34 a concept to which I will return. This notion of “consent” is fundamental to the first of the two forms of what Kislowicz identifies as the group-based autonomy with a procedural conditions approach outlined above.

The third approach that Kislowicz presents calls for substantial engagement with membership norms. This approach, demonstrated by the CHRT in Jacobs, goes far beyond the natural justice requirement of the second approach in making substantive judgments about acceptable community norms. Kislowicz juxtaposes two English cases to demonstrate that legal principles are not applied through a neutral lens, but through that of the cultural or religious tradition of the jurisdiction. In the example he provides, Kislowicz notes that consent is successfully used as a justification for an exclusionary decision of a public institution. In contrast, a religious school is not permitted to rely on traditional rules of membership as a justification for exclusionary admission practices.35 This incongruity demonstrates the problem of the inconsistent use of legal principles when decision makers engage with the third approach. This difficulty remains, notwithstanding strong reasons for limiting the scope of group autonomy, including respecting the right to Aboriginal self-government. Such reasons may include, according to Kislowicz, “access to vital public goods such as education; concerns for basic fairness and avoidance of unjustly discriminatory practices...”36 However, he warns that attempts to liberalize cultural norms through court orders may have the effect of more deeply entrenching the group’s conservatism, preventing the community from adopting more contemporary values through a natural evolution.37

Kislowicz argues that when courts are able to avoid normative judgments about Aboriginal membership codes, they steer clear of “overstepping the state’s role in choosing the good life for its citizens and provoking an entrenched conservative view in minority communities.” 38 The risks in engaging with normative aspects of membership codes are associated with the decision maker’s potential lack of status and expertise in appreciating the cultural importance of the rule at issue.39 The CHRT acknowledges this risk in Jacobs: 32 McKenna, supra note 7. 33 Webber, supra note 29 at 154. 34 Ibid. 35 Kislowicz, supra note 21. 36 Ibid at 314. 37 Ibid at 315. 38 Ibid at 327. 39 Ibid at 291.


… [W]e were told by Grand Chief Norton, by Professor Alfred and in the submissions of counsel for the MCK that should this Tribunal make an adverse finding against the MCK, its Order would be ignored… the intrusion of any outside authority such as this Tribunal on the membership issue, would likely harden the resolve of the community to exclude rather than include the Jacobs family. This, in itself, underscores the political context surrounding this entire matter.40

If First Nations resort to a position similar to that which the CHRT describes, community

laws may be paralyzed in their most traditional expression and unable to respond to the changing values of their memberships. Further, a hardened resolve against the imposition of Canadian liberal values could stigmatize vulnerable community members who might otherwise be inclined to seek recourse for discrimination against them, for fear of being cast out as a cultural traitor. To avoid this polarizing and potentially destructive effect, Kislowicz posits that adjudicators ought to refrain from engaging substantively in community norms where possible.41

In circumstances that call for judges to engage substantively with the community’s membership rules, Kislowicz suggests that an alternative model may help them avoid the pitfalls of weighing in on cultural norms about which they have little expertise. He endorses Ayelet Shachar’s “Joint Jurisdictional Governance Model,” which prescribes that jurisdiction be shared between a First Nation and the Canadian state, with exit points through which citizens can migrate from one jurisdiction to the other as required to express their cross-cultural identities.42 Kislowicz suggests that decisions made in this framework would ideally prompt legislative initiatives developed with the concurrent authority of First Nations and Canadian state lawmakers, which would, in turn, restore power to those directly affected by such policy.43

(b) JOINT JURISDICITIONAL GOVERNANCE MODEL

Shachar’s approach aims to strike an equitable balance between collective and individual rights. Her proposed Joint Jurisdictional Governance Model would see the subdivision of jurisdiction between First Nations governments and the Canadian state along the lines of governance matters, which are either demarcating or distributive in nature.44 She says those with a demarcating function relate to status and should be under the authority of the cultural community, while those with a distributive function, relating to property, should generally fall under the state’s jurisdiction.45 This guarantees that neither the state nor the community would have a monopoly over all aspects of governance. Further, she suggests that her model encourages “transformative accommodation,” which will provide a measure of protection to vulnerable members of the community (women and children), provided there are many exit points at which a community member may opt out of community governance and come under the jurisdiction of the state.46

40 Supra note 14 at 39. 41 Supra note 21 at 290-91. 42 Ibid at 291, 316. 43 Ibid at 291. 44 Ibid at 316-17. 45 Ibid, citing Ayelet Shachar, Multicultural Jurisdictions: Cultural Differences and Women's Rights (New York: Cambridge University Press, 2001 at 119-20 [Shachar]. 46 Ibid at 318.


Shachar argues that the option to opt out provides a competition between jurisdictions to evolve on their own terms and strive for the loyalty of members, which empowers the individual and encourages responsiveness to the values of community members. 47 This fosters accountability and provides an incentive for communities to continually adapt their practices to reflect the ever-evolving social and cultural values of those under their governance, abandoning those practices no longer compatible with consensus community viewpoints. Thus, transformative accommodation is realized through the mere existence of the option for members to opt out of their Aboriginal community’s jurisdiction. Importantly, Shachar notes that members would be able to opt out of community jurisdiction over any individual demarcating matter, so the degree to which each individual is governed by either jurisdiction would be subject to that person’s consent.48

Kislowicz argues that this subdivision of power by “concept” rather than the division of power by subject matter (the latter model exemplified by sections 91 and 92 of the Constitution Act, 1867), contributes to an allocation of authority that is more just and wise. He suggests it is more just because it advances interests that cannot be realized individually and more wise because it allows the state to avoid the risks associated with attempting to intervene in community norms of which it has a limited understanding and legitimacy for executing in the eyes of the community.49 These risks of the state interfering to protect women, for example, include the potential for xenophobic arguments to be made under the guise of feminism.50 Further, the state may not know how best to access and aid vulnerable members of a community.51 Lastly, there is a potential for community leaders to punish vulnerable members (women and children) whom they deem disloyal by engaging in a state-sanctioned recourse, which may actually have the effect of erecting a barrier to a remedy outside the community.52 An example of this scenario could be similar to Horn-Miller on the Kahnawake First Nation who “marries out” of the community and then seeks to retain her formerly held rights and benefits of band membership. However, other women in Horn-Miller’s situation may not have the means or prestige in the community to challenge the membership code through the Canadian court system due to fear of further alienation, punishment, and homelessness. This woman would not have recourse either inside or outside her community due to her feeling of helplessness in asserting her position.

Kislowicz departs slightly from the joint jurisdictional aspect of Shachar’s model by suggesting that state interference with distributive interests, like the allocation of communal property, may be inappropriate. This is because there are state welfare mechanisms in place to assist members who have been expelled and denied access to communally held property.53 Still, Kislowicz says he does not dismiss Shachar’s suggestion that jurisdiction should be subdivided in accordance with demarcating and distributive principles. Instead, he suggests that jurisdictional boundaries are best determined with regard to the community’s values.54

47 Ibid at 317-18. 48 Ibid at 317. 49 Ibid at 318. 50 Ibid at 318-19, citing Oonagh Reitman, “On Exit” in Avigail Eisenberg & Jeff Spinner-Halev, eds, Minorities within Minorities: Equality, Rights and Diversity (Cambridge, UK: Cambridge University Press, 2005) 189 at 204-06 [Reitman]. 51 Ibid at 319. 52 Ibid . 53 Ibid at 322-23. 54 Ibid at 323.


I experience difficulty applying Shachar’s model in the context of the Indian Act. Community membership is directly related to one’s status and is thus a demarcating matter over which Shachar suggests the state should have no jurisdiction. However, as in Jacobs, MCK band membership determines eligibility to receive access to all other distributive matters, including most of those enumerated in the CHRT’s order. Further, there are matters on the CHRT’s list of benefits and services that the CHRT orders the MCK to provide the Jacobs family that may be both demarcating and distributive. For example, receiving the benefit of education does not only provide skills that promote future economic success, but it also appears to have a distinctly traditional Mohawk character in the Jacobs case, thus rendering it both demarcating and distributive. Burial would most likely be framed as a matter of spiritual identity (demarcating), rather than one of economics (distributive). However, there may be high costs involved in an off-reserve burial, which may pose a negative financial impact on friends and family members of the deceased who wish to visit the gravesite. Further, it may be more expensive to secure a burial plot off reserve. The right to take up residence on the reserve may have a demarcating value to members who derive significance from living on their traditional lands. However, having the right to that land in a proprietary sense renders it distributive in nature. This difficulty in categorizing matters in the way Shachar suggests is somewhat remedied by Kislowicz’s suggestion that the classification of these matters should be assessed on a case-by-case basis, with regard to what value and connotation the First Nation in question associates with each.55

As I noted, the CHRT did not include voting privileges in the list of benefits and services to be afforded to the Jacobs family. Voting privileges are often viewed as a badge of community belonging and thus, on their face, demarcating. The exclusion of this benefit in the CHRT’s mandatory injunction is consistent with its statement that it could not force the community to accept the Jacobs family. However, because one cannot separate community belonging from entitlement to distributive components of life on a reserve (at least not in the Jacobs case), it seems conceptually irreconcilable to force the band government to add the Jacobs family to the band list (a demarcating matter). This would materially provide for the Jacobs family on the one hand, while, on the other hand, deny the Jacobs a democratic voice regarding how the resources to which they are entitled are distributed through the election of MCK leadership.

Under Shachar’s model, many of the matters enumerated in the order (perhaps with the exceptions to which I alluded) were inappropriately placed in the jurisdiction of the band. However, a direct application of her theory is thwarted by the funding arrangements in place between the DIAND and the MCK. These arrangements, Shachar may suggest, should be renegotiated such that they are within the jurisdiction of the state. If that were the case, the Jacobs family would not have fallen through the cracks between the DIAND and the MCK. The MCK, under this approach, should retain its right to determine membership, but not administer matters that are distributive in nature.

Kislowicz might say that the Jacobs family should have applied for welfare through regular channels rather than through DIAND or the MCK. In addition, if communal property is conceptually integral to the Mohawk way of life, it is not appropriate for the state to wade into community norms when it comes to the reallocation of communal property to those effectively expelled from the territory and denied access to its communally held property. Such was the case in Jacobs, where the family sought land allotment and rights, residency rights, housing assistance, and welfare money from the MCK. However, since the CHRT conceded that seeking

55 Ibid at 327-28.


a legal remedy was the Jacobs’ only option,56 perhaps other avenues of receiving welfare were foreclosed to the family.

Kislowicz suggests that dialogue between each First Nation and the state is critical in developing the appropriate power-sharing framework to be renegotiated from time to time, given a differentiated classification of matters that may be demarcating to some First Nations and distributive to others.57 Indeed, it seems possible for a matter to straddle these categories. Negotiations are thus required to determine a jurisdiction-sharing model that is appropriate in the circumstance of the First Nation in question.

Shachar’s jurisdiction sharing model may, in theory, resolve many of the issues associated with balancing communal autonomy with individual rights and freedoms in an age when interactions between First Nations and the state are increasing in frequency and covering a broader subject matter. Practically speaking, however, I have reservations about the feasibility of this model due to political barriers. Kislowicz suggests that it may defy the political sense of those from both sides to engage or be seen to engage in these kinds of power-sharing negotiations due to fear of political fallout.58 Beyond that, I have difficulty imagining what would incentivize First Nations leaders to relinquish control of property matters on their reserves to the state. Furthermore, critics of the Indian Act First Nations governance framework, like Horn-Miller, may suggest that the current regime is set up to regulate the distribution of resources. Lamenting her experience in dealing with her First Nation’s government, Horn-Miller states, “[w]e’re not just useless sacs of DNA that are counted for federal transfer dollars.”59 I have little confidence that there is the political will to bring about the kind of wholesale change described above because those benefitting from the status quo power structure would be those negotiating with the state under the joint jurisdictional model, not the vulnerable community members adversely affected by a discriminatory regime.

In light of political considerations, Kislowicz suggests that the delineation of jurisdiction will often fall to the courts, which are not in a position to broker power-sharing agreements. With this in mind, Kislowicz recommends that decision makers remain aware of the jurisdictional allocations in any relevant legislation arising out of a state-community negotiation. Additionally, Kislowicz suggests that state politicians should take notice of litigation of this kind and interpret it as a sign that the existing framework requires renegotiation.60 The Jacobs case could have served as an indication to lawmakers to renegotiate the governance framework to prevent similar issues going forward, but it did not, as was evidenced by the current discrimination claim challenging the MCK’s rule preventing mixed-race couples from living on the reserve.61

Regarding the transformative accommodation element of Shachar’s Joint Jurisdictional Governance Model as it relates to exiting from aspects of community jurisdiction, Kislowicz canvasses several compelling criticisms. While the economic barriers to exit are, in theory, not in play because the state would govern distributive affairs, Oonagh Reitman argues that Shachar’s model does little to account for the “socio-psychological” barriers to exit, including those bound up in one’s spiritual beliefs, for example.62 Moreover, Reitman argues that these costs would be

56 Jacobs, supra note 14 at 5. 57 Supra note 21 at 321. 58 Ibid at 326. 59 McKenna, supra note 7. 60 Supra note 21 at 326-27. 61 McKenna, supra note 7. 62 Kislowicz, supra note 21 at 319-20, citing Reitman, supra note 50 at 195.


borne disproportionately by women.63 Next, Reitman points to the potential for leaders to refuse reform as a way of further defining their community, rather than compete for members’ loyalty.64

Shachar’s distinction between demarcating and distributive jurisdictions may be useful in protecting vulnerable community members in the First Nations context, since many communities are located in remote locations, with the federal government providing economic resources directly to band councils to support those living on reserves.65 As a result, we see that the vast majority of the fiscal resources go to on-reserve members, despite the fact that, as of the 2011 Census, only about half of First Nations peoples with registered Indian status live on-reserve. This is, arguably, inequitable because the money allocated to the First Nation is only reaching, on average, about half the membership: those who live on-reserve.66 The fact that about 50% of First Nations peoples live off-reserve67 at least partially undermines Reitman’s critique, since there does not seem to be a robust socio-psychological barrier preventing these members from leaving the on-reserve community. However, the census information does not reveal whether the population of First Nations peoples living off-reserve is disproportionately male. If it is, then that fact might lend support to Reitman’s suggestion that this barrier is more pronounced for women than men.

In summary, I have difficulty applying the Joint Jurisdictional Governance Model to the First Nations context because the key demarcating matter (whether an individual satisfies the membership code) effectively determines whether that individual is eligible, in the eyes of the band council, to receive benefits and services under that jurisdiction. It is important to note that both Kislowicz and Shachar apply this model to religious and cultural communities for which distributive matters do not rely solely upon the demarcating matter of acceptance. Therefore, it may serve us to examine an alternative theory designed specifically to address illiberal First Nations’ membership codes in Canada: one that focuses on employing interpretative principles to the existing Canadian-First Nation legal framework.

V. JUSTIFYING DISCRIMINATION IN FIRST NATIONS MEMBERSHIP CODES: A MODIFIED APPROACH

Dr. Kirstie Gover, an associate professor of law at the University of Melbourne, provides an interpretative methodology for settler states struggling to reconcile “tribal” forms of governance with the imposition of liberal constitutionalism. 68 She argues for a modified justificatory test adapted to the First Nations governance model in light of the historical context of the settler state. Gover suggests that the appropriate test is whether the First Nation’s descent- 63 Ibid at 320, citing Dwight G Newman, “Exit, Voice, And ‘Exile’: Rights to Exit and Rights to Eject” (2007) 57 UTLJ 43 at 58. 64 Ibid at 320, citing Reitman, supra note 50 at 207. 65 Calvin Helin, Dances with Dependency: Indigenous Success through Self-Reliance (Vancouver: Orca Spirit Publishing & Communications, 2006) at 242. 66 Statistics Canada, “Table 3 Distribution of First Nations people, First Nations people with and without registered Indian status, and First Nations people with registered Indian status living on or off reserve, Canada, provinces and territories, 2011”, online: ; Statistics Canada, “Aboriginal Peoples in Canada in 2006: Inuit, Métis and First Nations, 2006 Census” (January 2008), online: (shows 60% of the total First Nations population in 2006 lived off-reserve); See also Statistics Canada, “Figure 7 Percentage of First Nations people living on and off reserve, Canada, 1996 and 2006” (22 September 2009), online: . 67 Ibid. 68 Gover, supra note 20 at 209, 241-42.


based exclusionary rule is reasonable in the context of a free and democratic First Nation community. This adaptation, she contends, is appropriate in addressing the importance of racial boundaries in communities where kinship is valued, a value seemingly amplified against the backdrop of the settler state.69

Gover points out that discrimination of some kind is required for a political organization to exercise democratic governance effectively. In other words, there must be some kind of conceptual border distinguishing members from non-members.70 States discriminate against non-members in a variety of ways, for example, by excluding those who do not happen to be born in a certain territory. Birthplace is an immutable characteristic of a person, because an individual cannot do anything to change where they were born, nor could they have consented to being born there. For this reason, she points out that the birthright citizenship rule is distinctly illiberal.71 Nonetheless, this rule underpins statehood all over the world. Therefore, we seem to accept, in principle, some illiberalism when it comes to determining group membership. Gover concludes that the institutional legitimacy of settler societies relies on finding “a way to express a form of statehood that includes ascriptive, kinship-based polities within a liberal, consent-based constitutional order, and this necessitates the adaptation of liberal principles, including those that underpin non-discrimination law.”72

In contemplating how section 35 relates to Aboriginal self-government and, more specifically, First Nation membership codes, Gover notes that:

The application of section 35 to First Nations’ membership codes or the Indian Act’s status provisions has not yet been fully argued in litigation, but several membership disputes have begun to percolate through the court system, and these will shape the way Indigenous boundary disputes are conceived and approached in Canadian public law and policy. As the British Columbia Court of Appeal observed in McIvor:

The interplay between statutory rights of Indians and constitutionally protected aboriginal rights is a complex matter that has not, to date, been thoroughly canvassed in the case law. It seems likely that, at least for some purposes, Parliament’s ability to determine who is and who is not an Indian is circumscribed.

This indeterminacy is compounded by the fact that, while First Nations exercise authority that has been conferred on them by the Indian Act, they may also exercise authority that does not derive from that Act or from any other statute. Where First Nations exercise law-making powers that do not have a basis in legislation, are legislatively recognized but not mandated, or do not otherwise ‘originate’ from other Canadian governments, they may be exercising powers of inherent self-government.73

69 Ibid. 70 Ibid at 208. 71 Ibid at 218. 72 Ibid at 227. 73 Gover, supra note 20 at 228-29 [citations omitted].


Section 10 of the Indian Act allows for the enactment of membership codes among the 641 groups currently recognized under the legislation.74 Gover notes that if a First Nation exercises section 10 power, it is a “federal board, commission or other tribunal” and subject to the Federal Court.75 Aboriginal governments are not listed in section 32 of the Constitution Act, 1982, so it is not clear whether the Charter applies to them.76 Importantly, section 25 of the Charter provides that Charter rights “shall not be construed as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the Aboriginal peoples of Canada.”77 Section 25 has been described as protecting “Aboriginal rights from an over-zealous application of individual rights that might erode their collective rights.”78 In R v Kapp, the majority of the Supreme Court of Canada noted that the question of whether section 25 shields section 35 rights from Charter application or, alternatively, whether it is merely an interpretive provision, is still live.79

Of the 617 First Nation groups subject to the Indian Act, 241 govern their own membership through section 10.80 Most membership codes include a form of descent criteria. Gover distinguishes between descent rules employed by the state for the purposes of determining entitlements and descent rules employed by groups themselves. To achieve Indian status under the Indian Act, Gover notes that the government is concerned with the number of Indigenous ancestors, while groups are concerned with the number of ancestors from that group.81 Further, she notes that the interplay between membership rules that discriminate on the basis of gender and the appointment of “Indian” status has been subject to much litigation and legislative reform in Canada.82

The Indian Act has seen two waves of amendments that have addressed rights provisions differentiating between men and women. Until 1985, Indian women would lose their status if they married a non-Indian83 and whether a child would retain Indian status used to depend on the status of the child’s father, unless the Indian woman was unmarried.84 The 1985 amendments resulted in a 19% increase in the number of status Indians within five years of enactment,85 putting a strain on many First Nation communities. Gover observes that these amendments have allowed for Indianness to be a status allocated only by descent and legal Indianness to look more like a racial category. 86 The federal government has suggested that the goal behind an amendment that would preclude children of status Indians who are the product of two “out-marriages” from retaining status was to ensure that status Indians are sufficiently connected to the First Nations peoples to whom the Indian Act was originally directed.87

Gover argues that this second-generation cut-off rule in the Indian Act resembles the

74 Supra note 2, s 10. 75 Supra note 20 at 229. 76 Ibid. 77 Supra note 5, s 25. 78 Borrows, supra note 4 at 290. 79 Gover, supra note 20 at 230, citing R v Kapp [2008] 2 SCR 483 at para 64. 80 Ibid at 210. 81 Ibid at 210-11. 82 Ibid at 211. 83 Indian Act, RSC 1952, c 29, s 12(1)(b). 84 Ibid, s 12 (1)(a)(iv). 85 Gover, supra note 20 at 215, citing Megan Furi & Jill Wherett, Indian Status and Band Membership Issues, revised ed (Ottawa: Library of Parliament, 2003) at 7. 86 Ibid. 87 Ibid at 216.


descent rules employed by most “Section 10 First Nations,”88 which similarly count one’s Indian ancestors to determine membership. Further, Gover notes that “[i]n 2002, of the 240 ‘Section 10 First Nations’ that then existed, approximately 64 percent excluded some descendants of original members by applying rules that are equivalent to, or more restrictive than the second-generation cut-off rule. This includes most of the 15 percent of ‘Section 10 First Nations’ who used blood-quantum rules.”89 It is therefore evident that membership rules employed by First Nations tend to be more restrictive, given that the Indian Act counts all Indian ancestors, while many groups only count ancestors of that particular community.90 These rules are regarded by some as illiberal as they distinguish on the basis of race. It follows that Gover sets out to reconcile acceptance of their role in the Canadian liberal democratic model and offer pragmatic solutions. She concedes, in a similar fashion to Kislowicz, that in the context of our liberal democratic values, some solutions will be favoured over others, sometimes at the expense of another community norm.91

Gover argues that whenever a First Nation uses section 35 as a defence against a section 15 claim on the basis of racial discrimination, the dispute does not look like an assertion of a collective right as a defence of that community's jurisdiction.92 She says that the courts would be required to consider the reasonableness of the exclusionary rule for that particular group in question, paying attention to the intent and purpose of the rule, “along with consideration of the material circumstances and histories of the community…including the central importance of descent as the constitutive principle of Aboriginal communities.”93 She suggests that this brings to section 35 a justification analysis similar to that used in section 1 of the Charter, keeping in mind that neither section 1 nor section 15(2) (which would justify Aboriginal membership rules with an ameliorative purpose) can be applied to section 35, which resides outside of the Charter.94 Gover argues that exclusion on the basis of blood quantum, as exercised by First Nation governments, can be justified as a reasonable limit on the right of those excluded given their kinship-based nature. She justifies this allowance in light of the historical backdrop of colonialism and its impact on First Nations as they created membership rules out of a desire to protect their culture and identity from the invasion of a new racial group and its political organizations. However, she argues that there is no contextual or historical justification for exclusion on the basis of another prohibited ground, such as gender.95

(a) GENDER DISCRIMINATION

Gover credits Sawridge Band v Canada96 with providing useful instruction into how a section 35 claim may be structured by First Nations in the future.97 Sawridge First Nation, located in northern Alberta, along with six other Alberta section 10 First Nations, sought to bring in a membership code that would exclude those reinstated under Bill C-31. Many opposed the amendments on the grounds that the influx of new members, which totaled around 26,700, would

88 Ibid at 217. 89 Ibid. 90 Ibid at 218. 91 Ibid at 221-23. 92 Ibid at 235. 93 Ibid at 236. 94 Ibid. 95 Ibid at 208. 96 [1996] 1 FCR 3, 1995 CanLII 3521. 97 Gover, supra note 20 at 231.


threaten the First Nations governments’ capacity to distribute land and services on reserves, as well as disrupt the groups’ cultural integrity, violate the existing members’ freedom of expression, and interfere with the right to Aboriginal self-government. They argued that the overpopulation would be exacerbated when reinstated members had children, who would be similarly entitled.98 Sawridge First Nation argued that sections 8 to 14 of the Indian Act violated its right to determine its own membership protected under section 35, which it claimed was a stand-alone right, or, in the alternative, incidental to the right to self-governance. The trial judge found that even if either right could be established under section 35, the right to discriminate on the basis of gender had been extinguished under section 35(4), which guarantees equal application of such rights to men and women. Similarly, the judge found that any freedom of association claim made out under section 2(d) of the Charter would be limited by section 28, which ensures equal Charter protections for both genders. In 2004, the Crown secured a mandatory interlocutory injunction compelling compliance with the Indian Act, and forcing the band to enroll those whom it sought to exclude.99

I note here that, notwithstanding the state enforcing the liberal ideal of gender equality on Aboriginal groups in a legal sense, the question of community acceptance remains out of the state’s hands. Similar to the situation in Jacobs, the court, in interfering substantively with community norms, created a risk that Sawridge First Nation leadership would adopt a more conservative approach. I suggest that continued, more deeply entrenched discrimination may not emanate from a traditional norm, but rather, out of concern for scarcity of resources on the reserve. Such discrimination would largely go undetected by the state, where vulnerable individuals on the reserve (e.g. women) would lack recourse for fear of further alienation from their community, representing another risk propounded by Kislowicz.100 Such a risk could be mitigated if the state were in control of the distributive matters and administered resources directly to band members, with the matter of membership left to the band pursuant to Shachar’s model.101 This would theoretically remove the risk that vulnerable members would be materially disadvantaged by a discriminatory membership norm that may or may not be traditional, but rather, could be more accurately identified as a cultural defence mechanism developed by band governments to protect against colonial incursion.

As discussed, the determination of membership in the First Nations context doubles as an instrument of resource distribution. Gover points out that the majority of the litigation relating to section 35 rights relate to land and natural resources, and that claims to self-governance rights explicitly engage the relationship between Aboriginal governments and persons in a way that jurisprudence on collective Aboriginal property rights so far has not addressed.102 Therefore, the application of Shachar’s Joint Jurisdictional Governance Model made on the basis of distinguishing between distributive and demarcating matters does not fit comfortably in the First Nations context. Gover’s interpretative approach is a more accessible and appropriate tool for Canadian courts and the CHRT.

98 Ibid at 231-32. 99 Ibid at 232-33. 100 Kislowicz, supra note 21 at 316. 101 Ibid at 316-17, citing Shachar, supra note 45 at 119-20. 102 Gover, supra note 20 at 233.


(b) RACIAL DISCRIMINATION

Gover finds a promising evaluation of a descent-based membership boundary in the Federal Court’s decision in Grismer v Squamish Indian Band, in which the band’s membership code, exercised under section 10 of the Indian Act, precluded two people from enrolling as members because they were adopted and only had one parent on the band register.103 Paralleling Jacobs, the two applicants, who were claiming the membership code was invalid because it violated section 15 of the Charter, were status Indians under the Indian Act. Children adopted by status Indians are not barred from achieving status from their parents simply because they were adopted, which is why Peter Jacobs retained Indian status. The judge found that the membership code violated section 15 because the blood quantum rule demeaned the dignity of the adoptees, thus constituting discrimination. However, he reasoned that the nation had made an effort to balance the individual rights of adoptees and others in the community with the community’s values, history, and context (being surrounded by non-Aboriginal influences) by allowing for some adopted children to enroll if their adoptive parents were both members. The court saw this as a compromise that minimally impaired the rights of adoptees while allowing the band to maintain its object of preserving Squamish culture through traditional means of limiting group membership to those of a common bloodline. As such, the Charter infringement was justified under section 1.104

Gover takes from this decision that “the ‘reasonableness’ of Indigenous membership law in a ‘free and democratic’ settler society must be understood in the context of settler-state history, which is, crucially, a history of colonization.”105 This decision demonstrates that the appropriate tools and precedents are already available to balance competing First Nation and individual rights through the interpretive principle propounded by the Federal Court in Grismer.

Gover further supports this conclusion with reference to amendments made to the CHRA, which draw on the same concepts as those articulated in the Grismer decision. Prior to 2011, First Nations were shielded from the CHRA by virtue of section 67, in respect of, “any provision made under or pursuant to [the Indian] Act.”106 Falling in line with the approach in Grismer, amendments to the CHRA provide that “First Nations legal traditions and customary laws, particularly the balancing of individual rights and interests against collective rights and interests, to the extent that they are consistent with the principle of gender equality.”107 Gover anticipates that, in light of the flood of CHRA complaints filed against First Nations governments in the wake of these recent amendments (i.e. 162 by early 2014), there is potential to witness development and refinement in how First Nations’ communal rights, as exercised through band governments, interact with the individual rights of their members.108 Gover concludes:

In effect, racial difference marks the boundaries between the descent-based polities of tribes and the descent-based polity of the settler state. Second, while discrimination against non-descendants can be justified as a concomitant of tribalism, distinctions made between tribal descendants are suspect to the extent that they are based on immutable personal characteristics other than descent.109

103 2006 FC 1088 (CanLII), [2007] 1 CNLR 146 [Grismer]. 104 Gover, supra note 20 at 237-38. 105 Ibid at 239. 106 CHRA, supra note 6, s 67. 107 An Act to Amend the Canadian Human Rights Act, SC 2008, c 30, ss 1.1, 1.2. 108 Gover, supra note 20 at 240. 109 Ibid at 241.


If the CHRT had used Gover’s approach in Jacobs, I expect that the outcome would have

been entirely different. The CHRT may have reasoned that excluding Peter Jacobs on the basis of race would be reasonable in the context of a free and democratic First Nations community. Even though there was evidence suggesting that descent was not of central importance to traditional Mohawk culture, the blood quantum rule would be interpreted in light of the historical context of a settler state, such that the MCK justifiably imposed the requirement as a protection mechanism from the hegemonic settler culture. Similarly, if the blood quantum rule is deemed justifiable, the Jacobs children would be worthy of reinstatement because they are 50% Mohawk. On the other hand, Trudy Jacobs’ exclusion on the basis of family status may be reasonable if there were additional evidence to suggest that keeping marriages inside the community was important to the Mohawk in light of the historical context, and that this rule was connected to the objective of cultural maintenance. However, the rule may have a disproportionate effect on women such that it would be deemed unjustifiable under section 35(4) of the Constitution Act, 1982.110

VI. CONCLUSION

How do we reconcile discriminatory First Nations membership codes administered under the Indian Act with Canadian anti-discrimination laws, and how should we? While a Joint Jurisdictional Governance Model would reduce the potential for vulnerable members to be materially disadvantaged at the hands of band governments, anticipated First Nations resistance to forfeiting control over distributive matters makes the model seem unfeasible in the Canadian context. However, the interpretive adjustments Gover endorses would help adjudicators balance First Nations’ rights with Canadian liberal values. Shachar and Kislowicz might accept Gover’s limit on group autonomy in protecting women’s equality rights, because Shachar’s concern, seemingly endorsed by Kislowicz, is in developing a framework that fosters a proliferation of individual choice by allowing the right of exit from particular governance matters and eliminating a jurisdictional monopoly. The fact that the Jacobs family, Waneek Horn-Miller, and many others have brought their grievances to the CHRT and Canadian courts lends legitimacy to Shachar’s transformative accommodation theory with respect to the importance of jurisdictional exit points. Nonetheless, the Canadian legal system is equipped to employ the modified interpretative approach endorsed by Gover, as the Federal Court already has in Grismer. Meanwhile, we must continue to recognize the inherent limits of courts and tribunals in that true community acceptance exists beyond the scope of the law.

110 Supra note 1, s 35(4).

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