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A desire to hold power to account led Mike to journalism and he’s been asking...
Rick Desautel, Shelly Boyd and Derrick Lamere stood on the steps of the Supreme Court of Canada in Ottawa on a chilly October morning. They are Sinixt, or ‘people of the place of the bull trout,’ and members of the Arrow Lakes Tribe. Inside, nine supreme court justices heard arguments from a slew of lawyers about whether or not the Sinixt hold rights in Canada, since the federal government declared them ‘extinct’ in 1956.
Sinixt territory stretches from Kettle Falls in Washington to Revelstoke, B.C., but the Sinixt were pushed south due to the impacts of colonization. They were confined to a reserve in Washington and called the Arrow Lakes Tribe. They are now seen by the United States and Canada as an ‘American’ tribe.
Sinixt, according to Boyd is pronounced “sin-eye-ch-kiss-ta, going long on the ‘eye’ and fast on the ‘kiss-ta.’ ”
The tribe has been looking for ways to gain recognition in B.C. for decades. They finally seized their chance to test their rights in court by sending Desautel to harvest an elk in Sinixt traditional territory near Vallican, B.C., in the Slocan Valley, where he was charged (but never arrested) for hunting in Canada as a ‘non-resident.’
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On that cold October morning, lawyers representing the Crown argued the Sinixt do not have the right to practice traditional hunting on their ancestral territory in B.C. because they are ‘foreign’ — a word that strikes Boyd and Desautel as deeply ironic to hear from settlers as Indigenous people.
As the non-Indigenous justices listened to mostly non-Indigenous lawyers to decide what rights the Sinixt have within Canada’s borders, the living, breathing Sinixt people waited outside in the cold. They had travelled from Washington to be there, but the group of three was told that due to COVID-19 restrictions “non-essential” people were kept out of the court, Desautel said. They live-streamed the proceedings partway-through to hear their own lawyer, Mark Underhill, but they were never present in the room with the Crown’s lawyers.
Those were the people they had hoped to lock eyes with.
“Ironically, we’re here in a case about extinction, and we’re not allowed to be seen,” Boyd said. “We waited, and had that hope that maybe at least they’ll look out the window.”
It was not the scene they’d pictured when they heard they would be going to the Supreme Court last year. Desautel was disappointed to not be in the court while the Crown and intervenors presented their arguments.
“I had to be there in person for these proceedings,” he said.
“I wanted to show them I wasn’t extinct.”
In 2010, when Desautel travelled to Canada to harvest the elk, he made sure to keep conservation officers informed every step of the way.
The hunt was no accident. The Arrow Lakes Tribe planned it as a way to launch a case to test their Indigenous rights. Desautel was eventually charged with hunting without a licence and hunting as a non-resident — a price he and other Sinixt were willing to pay.
“We have to do something, or we just might as well accept extinction.”
“It was a hard call because we knew that we only had one chance to bring it to this level of court,” Boyd said. “It was a really scary decision. But at the same time, it just felt like, what do we do? We have to do something, or we just might as well accept extinction. There’s never going to be a perfect chance.”
But they succeeded, and the provincial supreme court affirmed Desautel’s right to practice hunting on his ancestral land. The Crown challenged him in the B.C. Court of Appeal, where he won again. The Crown appealed yet again, taking him to the highest court, where it continues to argue that Sinixt being allowed to exercise Indigenous rights in Canada is “incompatible with Canadian sovereignty.”
Boyd said it could be six months to a year until the court reaches its decision.
The question at hand is whether the Sinixt are an ‘Aboriginal people of Canada’ as described in the Constitution Act in section 35, which reads, in part:
To Boyd, being of Canada means being “literally from the land,” not from a country.
“Canada is a place, but it’s also an idea,” she said.
For the Sinixt, it’s about the literal land and waters their ancestors lived upon and which they still have a connection with today, and their ability to be stewards of their territory.
“It has nothing to do with being American or Canadian,” she said.
If successful, Desautel and Boyd want to see the exclusion clause thrown out.
“This was placed on us. It should be removed. This is not truth and reconciliation,” Boyd said.
Sinixt is spelled sn̓ʕaýckstx in their language, n̓səl̓xcin. According to Boyd, Sinixt literally means place, spotted fish and people. The Arrow Lakes Tribe is often used synonymously with the Sinixt, though others identify as Sinixt as well. Some people from the Syilx/Okanagan Nation identify as both Sinixt and Syilx.
Desautel said the Sinixt were destabilized from first contact, with the arrival of pandemics like smallpox, which “decimated” the population that had once been thousands strong.
As the colonial powers industrialized, he said their dwindling population was further displaced by mining, logging and construction of the Canadian Pacific Railway. In the late 1800s, the Arrow Lakes Tribe joined the Colville Confederated Tribes in Washington, pushed by the United States. The U.S. then pushed them to cede the northern portion of their reservation in 1890.
In 2017, before the Supreme Court of British Columbia, the Crown had an anthropologist testify, who said the Sinixt had relocated to the United States “enthusiastically.” But the trial judge concluded that, in fact, the evidence showed they did not leave their territory voluntarily.
“It was a matter of making the best choice out of a number of bad choices,” concluded Justice Robert Sewell.
“Through regulation, they confined us in a smaller box,” Desautel explained. “Then, they took that box and put it into a smaller box. The plan was, get them all to that side of the border. Then like a magician, poof. They’ve disappeared.”
In 1956, Canada declared the last living member of the Arrow Lakes Tribe dead and the tribe extinct. But Sinixt continued to live, and continued to remember their territory up north where they once travelled through the seasons.
Underhill, lawyer for Desautel, reminded the court that Indigenous Peoples relocating during colonization does not mean they willingly deserted their territories.
“Abandonment has no place in Indigenous law,” he said. “The court is well aware of the state of history at that time on both sides of the border. … It was, to be blunt, a dark time for Aboriginal people.”
The arguments in the court were complicated. The Arrow Lakes Tribe was referred to as a ‘foreign’ group by the Crown, and as a ‘collective’ or ‘successive’ group of the Sinixt by Underhill and the interveners. All parties referenced landmark cases like R. v. Delgamuukw and R. v. Sparrow and debated what the intent of the constitution was in protecting the rights of the ‘Aboriginal people of Canada.’
Desautel emphasized the Canadian and American judicial systems are imposed on Indigenous Peoples, and the Sinixt have had their own legal systems since before contact. By their law, they remain stewards of the land and the border is an artificial line. But they hope the court may also act as an imperfect tool to affirm pre-existing Indigenous rights when the ruling government is not doing so.
“Now we have to abide by their judicial system, and we may kick and scream and say we’re not being judged right, but we are still going to step back in and plead our case to open [people’s] eyes and ears to see our plight,” Desautel explained.
In the lower courts, judges applied the Van der Peet test, which originated from the 1996 case R. v. Van der Peet to see if Desautel was exercising entitled Indigenous rights in the eyes of Canadian law. The test stipulates that an Indigenous practice or tradition must be integral to the culture of the Indigenous People claiming that right and must originate from pre-contact. The courts concluded he passed the test.
The Crown argued the test was not relevant because the Stó:lō woman at the centre of that case, Dorothy Van der Peet, was a Canadian citizen, and Desautel is not.
While the Crown and interveners acknowledged the border was drawn with “little regard to the boundaries of Indigenous people,” as one attorney put it, they argued acknowledging Sinixt Indigenous rights would lead to “practical” problems addressing those rights.
Underhill said the Sinixt’s absence in B.C. was due to colonial forces, and the central question in the case is not whether they ever stopped hunting in Canada. Instead, he said the important question is “does it still matter to these people, to their culture, to be able to hunt in Canada?”
“We do not have a ‘foreign Indigenous group,’ in the words of the Attorney General of British Columbia, or a group of foreign nationals. What you have is the same collective that was here at contact, and has people residing on both sides of the border,” Underhill said.
“The question becomes, ‘is that collective an Aboriginal people of Canada?’ And we say, unequivocally, yes.”
Paul Williams, a Haudenosaunee lawyer representing Peskotomuhkati Nation as an intervener, told the court in a wry tone that the case was about “how nine non-Indigenous judges interpret four words: Aboriginal People of Canada.”
He pointed out how even the word of could mean significantly different things from a colonial or Indigenous worldview, either acknowledging the “timeless connection of Aboriginal people and land” or acting as “a possessive term” to differentiate “our Indians and somebody else’s Indians.”
He argued “the key to reconciling and the first step for any treaty relationship is respect,” in particular “respecting the relationship between people and the land.”
Boyd took part in a virtual salmon ceremony hosted by First Nations along the upper Columbia River in Washington this summer. Fish have been blocked from the upper reaches of the river for decades due to the Grand Coulee Dam, which led to the loss of 1,770 kilometres of salmon and steelhead habitat. First Nations still host ceremonies to call the salmon home.
The river’s headwaters are in B.C. and it runs through Washington and Oregon to the Pacific Ocean. Those headwaters in the Rocky Mountains are at the centre of the Sinixt creation story.
A beautiful woman, Rain, fell in love with Coyote. He promised her a gift if she shared a gift with him.
“Knowing that she was irrevocably in love with Coyote and that there was nothing she could do about it, Rain reached into her chest, tore her heart from her breast and cast it down. Where her heart landed and her heart’s blood seeped became the headwater of the Columbia River,” reads a condensed version of oral history told by Sinixt elder Marilyn James.
They eventually meet Rain’s cousin, Ocean, and Coyote is smitten by both. Angry, Rain demands her gift from Coyote. He began “taking bites of himself” and laying them by the water running from her heart, and they became beings intricately tied to the water: “all species of flora and fauna, all species of fish, resident and anadromous.”
“After that, Coyote reached into his heart and set down a small piece of it on the land. This piece of his heart became the Sinixt peoples. The responsibility of the Sinixt was to live with Rain’s heart, to show reverence to the land every single day, to show respect and love to the source of the Columbia River, Rain’s heart,” reads the story.
The Sinixt have been releasing salmon above the Grand Coulee Dam to continue that work, but have been excluded from policy discussions.
As a cross-border nation, Boyd wants the Sinixt to have a seat at the table in Canada-U.S. negotiations to renew the Columbia River Treaty, a 1961 agreement on managing dams in the river. But they “aren’t allowed a seat on either side,” she said.
“It’s not just blocking our voice, it’s … it’s blocking the voice of salmon.”
The court heard from a number of interveners. Provinces intervened with the Crown, while Indigenous Peoples and organizations intervened with Desautel, including the Okanagan Nation Alliance, the Indigenous Bar Association in Canada and the Assembly of First Nations. The case has the potential to impact multiple Indigenous Peoples whose territories cross borders.
“The implications are so much larger than us. This is an international issue that we face as Indigenous people,” Boyd said.
Whitecap Dakota First Nation, whose territory crosses the border close to Saskatoon, acted as an intervener as well. Its counsel, Keith Brown, told the court that dismissing Desautel would render Indigenous rights under the constitution “illusory and impossible to vindicate” if they are not affirmed in the face of evidence demonstrating ancestral occupation of and forceful removal from lands.
Brown said demanding Indigenous Peoples occupy the same territories as they did historically in order to maintain their inherent Indigenous rights, despite colonial intrusions, could threaten Indigenous Peoples who are “entirely within Canada” but were displaced from their ancestral lands.
“The law should not become a tool for severing an Indigenous nation’s bond with ancestral land,” he said.
Jack Woodward, representing Nuchatlaht First Nation on Vancouver Island, told the court B.C. was also not acting in accordance with its own statute that brought the United Nations Declaration on the Rights of Indigenous Peoples into law. The declaration specifically acknowledges Indigenous Peoples divided by international borders.
“They are wrong to advance those arguments in the face of this statute,” he said.
The case may have wide implications for First Nations north and south of the 49th parallel. But Desautel’s purpose remains very focused, he told The Narwhal from Vallican, B.C., close to a Sinixt village site. He’s near the same spot where he participated in a blockade in 1989, protesting the destruction of Sinixt remains during road construction. He is staying there for the winter, as he says his ancestors did.
“My long-term goal is for my people, my children, and for the children upcoming, to come to this traditional territory that I’m sitting on right now,” he said.
“And to say, this is your grandfather’s ancestral grounds. If it wasn’t for these people right here, you wouldn’t be here today. That forty-ninth parallel is not a stopping point in your history. They didn’t find you under a rock someplace in the state of Washington. You started here.”
Updated Oct. 31, 2020, at 1:54 p.m. PST: This article was updated to note Desautel, Boyd and Lamere did not enter the court to hear lawyer Mark Underhill present his arguments as previously stated. Instead, the group live-streamed the lawyer’s arguments from outside the courtroom. A second update was made to correct reference to the Columbia River Treaty, which the article incorrectly stated expires in 2024. The U.S. or Canada can choose to unilaterally terminate the treaty in 2024 but are required to give 10 years notice to do so.
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