KAHNAWAKE’S NEW ADOPTION LAW DEFIES CHILDREN AND PARENTS’ RIGHTS
Montreal, March 22, 2016 — The Kahnawà:ke Mohawk Council’s proposed change to its already contentious Membership Law may fly in the face of the International Convention on the Rights of the Child and other international and domestic human rights laws.
The Kahnawà:ke Legislative Coordinating Commission announced on March 9 that “full consensus was reached on the final clause of a section on adoption of the Kahnawà:ke Membership Law”, at a hearing where over twenty community members participated (see http://www.kahnawake.com/news/pr/pr03092016b.pdf ).
The clause in question that was accepted at the hearing, “with a proviso added for clarity” (in italics characters) to the original provision of the Membership Law reads as follows:
“A child who has no Kanien’keháka or Onkwehonwe lineage adopted by a Kanien’keháka of Kahnawà:ke parent(s) after the enactment of this law on November 10, 2003 is not eligible to be recognized as a Kanien’keháka of Kahnawà:ke or be an Approved Kahnawà:ke Resident and, therefore, the parent(s) who chose to commit this offense will have their recognition (as a Kanien’keháka of Kahnawà:ke) suspended and not be eligible to reside in the territory of Kahnawà:ke.”
The added provision applies retroactively, meaning that Mohawk parents who are full members of the Kahnawà:ke community and who have adopted children without any Kanien’keháka or Onkwehonwe (i.e. Aboriginal) lineage since November 10, 2003, will be stripped of their membership and eventually expelled from the community. This provision applies to Mohawk parents who plan to adopt any children without Kanien’keháka or Onkwehonwe lineage in the future as well.
Membership, which is determined by the Kahnawà:ke Mohawk Council in accordance with the contentious and racially exclusionary Membership Law, allows community residents full and equal access to a wide range of rights (including land and voting rights), programs and services. In recent years, the Council has engaged in plans to expel residents who are not considered members due to their biracial backgrounds, or due to their marriage or relationship with non-members.
There should be great public concerns about this new law. Such a provision violates the equality rights of both the adoptive parents and the adopted child, as guaranteed by the Equality Clause of the Canadian Charter of Rights and Freedoms, because it discriminates on the basis of race and family status.
Most critically, the new punitive provision goes against the core principles of the International Convention on the Rights of the Child, including the obligation to act in the “best interest of the child”, to ensure a “standard of living adequate for the child's physical, mental, spiritual, moral and social development”, to protect the adopted child’s cultural identity and to guarantee that the child shall not “be denied the right, in community with other members of his or her group, to enjoy his or her own culture.”
The retroactive nature of the new provision is particularly disturbing because it unfairly subjects parents who did not “choose to commit this offense” between November 10, 2003 and March 8, 2016, to sanctions that deprive them of acquired membership rights as full members of the Kahnawà:ke community.
The new provision also adversely impairs the rights of Kahnawà:ke members who, for medical or personal reasons, choose to adopt children out of love, compassion and humanitarian reasons, regardless of race or family ancestry. It limits personal choice and need, and leaves open the door to more division and discrimination.
“The new clause suddenly punishes adoptive Mohawk parents because of the child’s race,” said CRARR Executive Director Fo Niemi. “It has the effect of making an adopted child “who has no Kanien’keháka or Onkwehonwe lineage” an orphan again, and Mohawk parents who adopt out of love, ‘offenders’.”
CRARR assists five Mohawk individuals of Kahnawà:ke in their complaints before the Canadian Human Rights Commission to challenge the inherent discriminatory nature of the Membership Law that is based on race and family status. These individuals have been denied membership and equal access to rights, services and programs because of their biracial backgrounds and family ties.