Do descendants of tribes living in the United States in Canada have rights north of the border?

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Rick Desautel comes from a long line of members of the Sinixt tribe who once lived in southern British Columbia.

He lives in Washington State, on the Colville Indian Reservation, along with thousands of other Sinixt members, many of whom were forced to leave their ancestral lands in Canada decades ago.

Desautel wanted to open a discussion on this subject. So years ago he went hunting north of the border where he shot down a ceremonial elk. Desautel did not have a license to do so, but he claims that since he was on the traditional hunting grounds of Sinixt, it was not illegal.

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Desautel was acquitted of the charges in the case in 2017, but several appeals took him to the Canadian capital, Ottawa, for the Supreme Court hearing last Thursday.

For Desautel, drawing on the momentum was an act of protest. He wants Canada to open up its traditional lands to hunting and fishing “and other rights and things that we have on our traditional territory for future generations of the Sinixt people,” he declared in front of the courthouse. last week.

Whether Sinixt members in the United States have rights in Canada is up for debate. The final decision in this case could set a precedent for reconciliation and tribal sovereignty across the country.

The Sinixt tribe of Canada is officially extinct – something the federal government declared after the death of the last Canadian member in 1956. But thousands of Sinixt descendants like Desautel still live across the border in the state of Washington.

At the start of the Supreme Court’s one and only hearing in the case – which involved in-person court appearances and others on video, due to the pandemic – Justice Malcolm Rowe summed up the matter at the heart of Desautel’s fight.

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“Isn’t it simple, what the BC Court of Appeal said?” Rowe asked during the hearing, directing the question to prosecutor Glen Thompson.

“The communities and nations encountered by Europeans in contact had rights… and whether they are on one side or the other of the border, they are successors and as successors, they hold the rights… Is- what is more complicated than that?

Judge Malcolm Rowe

“These communities and nations encountered by Europeans in contact had rights… and whether they are on one side or the other of the border, they are successors and as successors, they hold the rights… Is- what is more complicated than that? Said Judge Rowe.

“The issue is not whether the Sinixts exist or have rights in Canada,” Thompson said. “The question is whether the Washington Lakes State in the United States has constitutional rights despite clear words recognizing and affirming… the existing aboriginal and treaty rights of the indigenous peoples of Canada.

The rights accorded to Indigenous peoples in Canada were established in 1982 under section 35 of the Canadian Constitution.

“Attorneys General representing five Canadian provinces and one territory argue that since the current members of the Sinixt tribe do not reside in Canada, they have no rights there.

Christopher Rupar, who represents the federal government of Canada, said that in order to be recognized under Canadian law, a tribal member would not only have to have Canadian roots, but the members would also have to currently reside in the country.

“The individual has to say it’s the ancestral community, and it’s the contemporary community and I have a connection with both,” Rupar explained. “That way you have the involvement of the contemporary community in how their rights under section 35 are being treated.”

Defense attorney Mark Underhill said that whether people like Desautel are considered Sinixts in Canada or members of the Lake Tribe in the United States, if they do not have access to their lands traditional hunting grounds, they are simply cut off from their cultural identity.

“To be Sinixt and be able to practice your culture, they must be able to hunt in Canada.

Defense lawyer Mark Underhill

“To be Sinixt and to be able to practice your culture, they have to be able to hunt in Canada,” Underhill said.

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British Columbia has argued in the past that the Sinixts left Canada to go into farming in Washington, but previous rulings in the case have not substantiated this claim.

Underhill told the judges it was unlikely the Sinixts would have left Canada voluntarily. He said the argument has no place in Canadian law: “Because what he does is completely erase the concept of Indigenous identity that is tied to place and thus suggest that a move would never be voluntary, that an indigenous people would abandon their identity. ”

A dozen First Nations also spoke in favor of Desautel.

“You clearly understand that this case is about how nine non-Native judges interpret four words: Native Canadians,” Williams told the judges on a video conference call from his home in Ontario.

Williams is the Peskotomuhkati Nation’s Senior Negotiator, responsible for negotiations with the Crown on Aboriginal and treaty rights and title to land in Canada.

“Either these words recognize the timeless connection between an Indigenous people and their land in Canada, or the word ‘of’ is a possessive term, a word of control that allows Crown governments to distinguish between ‘our Indians’ and “Someone else’s Indians”. “”

Paul Williams, Nation Peskotomuhkati

“Either these words recognize the timeless connection between an Indigenous people and their land in Canada, or the word ‘of’ is a possessive term, a word of control that allows Crown governments to distinguish between ‘our Indians’ and “Someone else’s Indians”. “”

In the United States, the Sinixts are also known as the Arrow Lakes, or simply the Lake Tribe. They speak a dialect of Salish. Puti kwu ala7 means “We’re still here” – a phrase Shelly Boyd says she’s used a lot lately.

Puti Kwu ala7 WE ARE ALWAYS HERE!

Posted by Shelly Boyd on Thursday, October 8, 2020

Boyd was broadcasting on Facebook live from a hotel room in Ottawa during a short break.

Boyd and hundreds of Sinixt members from Washington went to the border on Thursday to show their support for Desautel. Due to COVID-19, they were unable to enter Canada.

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“I’m an Arrow Lakes Indian, and I’m not extinct,” Boyd said into his phone camera Thursday morning.

A final decision in the case is not expected for at least six months.



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