Sinixt hunting case heard in Canada’s top court

Photo: Joe Whittle/High Country News

Linda and Rick Desautel sit outside their home near Inchelium, Wash., as Rick describes his legal battle and his adventures as a hunter, trapper and game warden.

A Sinixt hunter’s decade-long fight for his rights and the recognition of his people has had his day in Canada’s highest court.

The Supreme Court of Canada heard arguments in the Rick Desautel hunting case on October 8.

Desautel, 68, shot and killed an elk near Castlegar in 2010, then purposely turned himself in to conservation officers so that his people’s hunting rights and very existence in Canada could be decided in a court of law. 

Desautel is a member of the Lakes Tribe – descendants of the Sinixt – now part of the Confederated Tribes of the Colville Reservation in Washington State. As a member of an American tribe, Desautel was charged with hunting in BC without a licence and hunting as a non-resident.

Desautel says he was exercising his traditional hunting rights as a member of the Sinixt – a right protected by Section 35 of the Canadian Constitution.

The Sinixt lived in the area for thousands of years, but through various circumstances most moved south of the border to Washington State more than a century ago. About 3,000 people of Sinixt descent live as part of the Confederation. In Canada, the band was declared extinct for the purposes of the Indian Act in 1956.

The trial judge had acquitted Desautel, recognizing the man’s right to hunt. That decision was upheld by both the Supreme Court of BC and the Court of Appeal, landing it before the nation’s top legal panel for a ruling.

The Supreme Court judges don’t rule on the facts of the case, but whether the law was properly applied by lower courts. 

In their opening arguments, the Province of BC’s lawyers said the matter came down to whether non-Canadians could be afforded the rights and protections guaranteed by the Canadian Constitution.

“The question before you is, is the Lakes Tribe an Aboriginal people of Canada?” said Glen R. Thompson, the lawyer representing the BC government. “The claimant group… is the Lakes Tribe of Washington State. The respondent wants to broaden that designation, they want to broaden the identification of the group to include the Sinixt people generally. That was not a finding of the courts below.”

“If you go as far as the respondents are suggesting, …and say ‘Aboriginal people of Canada’ can live in the United States, or really anywhere… then you have effectively said the common law issue of the border, the Canadian nation state does not matter, it does not exist…,” Thompson continued. “So what happens is you kind of end up with an erasure of Canadian sovereignty. This becomes an Aboriginal or an Indigenous solution and not a Canadian solution… and we need something that is workable to all Canadians.”

But Desautel’s lawyer, Mark Underhill, said they are seeking a specific protection for a specific right – not seeking sweeping Section 35 protections for all Sinixt living in the US. The person in this case is seeking the right to hunt, has historical connections to the land, people and culture of the members of the collective living in Canada. He also has the support and permission from those members to engage in that practice.

Intervenors said the concept of reconciliation should very much be considered when ruling on this case, and the history of relations between Indigenous people and colonizers should not be ignored.

“I would urge this court to reject a vision of reconciliation that defines the concept narrowly and ahistorically, and excludes from its purview some Indigenous peoples, with enduring connections to Canadian lands, who are now based on reserves outside of Canada,” said Jessica Orkin, representing the Grand Council of the Cree. “Their enduring connection to Canadian lands must be recognized and ought to be part of the project of reconciliation.”

A lawyer for the Indigenous Bar Association group agreed, saying the government was trying to use the international boundary to “lessen the burden of reconciliation.”

“It’s not as you’ve heard from the appellant… it’s not a question of a foreign rights-holder group asserting rights in Canada,” said Bruce McIvor. “The way I would phrase it, the question is, is a person from Indigenous ancestry, who is a resident of the United States, entitled to exercise an Aboriginal right in their people’s ancestral territory in Canada?

“Once we keep that question in mind, a lot of the arguments we heard today are for another day.”

The judges listened to arguments from nearly 20 intervenors, as provincial governments, First Nations and aboriginal groups from across Canada and the US outlined their concerns and interests in the outcome of the case.

The judges took the arguments under advisement. It’s not known when they’ll hand down their ruling.