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Canadian High Court Urged to Find Native Americans in US Have Rights in Canada

On a cloudy morning a decade ago, Rick Desautel turned himself in for illegally killing an elk that roamed his ancestral hunting grounds. That day, he intentionally launched a decade of legal wrangling that on Thursday landed him in the Supreme Court of Canada.

(CN) — On a cloudy morning a decade ago, Rick Desautel turned himself in for illegally killing an elk that roamed his ancestral hunting grounds. That day, he intentionally launched a decade of legal wrangling that on Thursday landed him in the Supreme Court of Canada.

Desautel, whose Sinixt homelands straddle Canada’s border with the United States, hopes the case will establish Sinixt rights in British Columbia.

In video footage documenting the 2010 hunt, Desautel explains the plan.

“We’re going up north, we’re going to hunt some game on our ancestral hunting grounds,” Desautel, who lives in Washington state, tells the passenger in his truck. High mountains and pine forests whir by in the background. “Up to what is called ‘above the border.’”

The boundaries of Sinixt territory predated Canada and the United States by thousands of years.

“I call it the north-north half,” he adds with a laugh.

Desautel’s strategic hunting trip, planned in advance as a test case by Desautel and other Sinixt leaders, has forced courts in Canada to determine whether the constitutional term “aboriginal people of Canada” includes indigenous groups that lived in what is now Canada before European contact, but now live in the United States. The Sinixt are not alone in this category, because of widespread policies like forced relocation to reservations, mandatory residential boarding schools and laws against the collective holding of land and communal feasting.

The Sinixt are one of the 12 tribes the Canadian and U.S. governments forced onto the Colville Reservation in northeastern Washington state, after creating it in 1872. Eighty-four years later, after requiring their move to a reservation on the other side of the U.S.-Canada border, the Canadian government declared the Sinixt “extinct” in Canada. And in 1982, the Constitution Act laid out which indigenous groups Canada would recognize. The Sinixt were not on the list.

Desautel, a designated ceremonial hunter who, according to Sinixt tradition, is authorized to collect food for the group, was acquitted in 2017 on charges of hunting as a “non-resident.” The government argued Desautel had no indigenous hunting rights, claiming the Sinixt had voluntarily left Canada in order to “enthusiastically embrace farming” in Washington state. But Justice Lisa Mrozinski of the provincial court in Nelson, British Columbia, found persuasive Desautel’s description of the importance of hunting where his ancestors are buried and that doing so fit with the history of the Sinixt people in the area.

The government has since lost appeals in both the B.C. Supreme Court and the B.C. Court of Appeal. On Thursday, it argued its case before the Supreme Court of Canada.

Despite restrictions due to the Covid-19 pandemic, Desautel was in Ottowa for Thursday’s hearing, having quarantined for weeks to travel there. The border between the U.S and Canada remains closed. Because of the restrictions, many other Sinixt and supporters who wanted to attend were not able to go.

Desautel’s attorney Mark Underhill told the justices the Sinixt never agreed to leave their ancestral homeland and that they never gave up their right to hunt there.

“They did not leave voluntarily,” Underhill said. “It was a move that was the best out of a variety of bad choices. It was, to be blunt, dark times for aboriginal peoples.”

Arguing for the Crown, attorney Glen Thompson called Desautel a “foreign national,” and said, therefore, that his hunt had been illegal.

“Here, we have a group wholly located in a foreign country claiming to be an aboriginal group,” Thompson said. “If you say, as he does, that aboriginal peoples of Canada can live anywhere, you effectively say that Canada’s borders don’t matter. The sovereignty of Canada gets erased.”

Several of the nine justices questioned that approach, noting overwhelming evidence the Sinixt had lived in British Columbia for thousands of years.

“What we’re reconciling is the prior occupation of Canadian aboriginal peoples with Canadian sovereignty,” Justice Russell Brown told Thompson. “The point where I’m struggling to accept your interpretation is that the source of their right is prior occupation. It predates the existence of Canadian legal order and they are presumed to have survived Canadian sovereignty.”

Thompson and other attorneys for the Crown and the Canadian provinces warned that a ruling in favor of Desautel would mean a maelstrom of difficulty for the government, which would then be required to consult with other tribes that straddle Canada’s border over issues pertaining to their land in Canada.

Underhill said such fears were overblown.

“Those practical problems of who to consult and where are problems we face every day,” Underhill said. “We already deal with those issues. They are not any reason to say these are not aboriginal peoples and they don’t have rights.”

The court took the arguments under advisement and did not say when it would issue a ruling.

Desautel has been fighting for the rights of the Sinixt for decades. In 1989, he was part of a blockade that tried to halt construction of a highway through Sinixt territory that disturbed their 4,000-year-old burial ground. Construction crews had unearthed the remains of six adults and one child, which the government then held in a museum in Victoria. Desautel and other Sinixt activists were able to reclaim and rebury the bones of their ancestors. They were not able to stop construction of the highway.

In 2015, Prime Minister Justin Trudeau accepted the final reportof Canada’s Truth and Reconciliation Commission, as part of the Indian Residential Schools Settlement Agreement. Among its 94 recommendations, the report called upon the government to accept indigenous land claims when the “claimant has established occupation over a particular territory at a particular point in time,” rather than requiring indigenous groups to show that they have occupied an area continuously since before European contact.

“The government of Canada is committed to walking a path of partnership and friendship with indigenous peoples,” Trudeau said at the time.

And in 2016, Canada adopted the United Nations declaration on the rights of indigenous peoples, which, among other things, says indigenous peoples have the right to protect their culture and traditions and prohibits nation-states from preventing the preservation of indigenous heritage.

Regardless, all levels of the Canadian government have fought Desautel’s case through multiple appeals over the last decade.

Though the final outcome of the case has not yet been determined, Sinixt descendant Rodney Cawston, chairman of the Confederated Tribes of Colville, said in the 2019 documentary “Older Than the Crown” that it has already restored the sense that what Desautel called “the north-north half” — the land now called British Columbia — is home.

“No matter what the outcome of this case is, I think we’re there,” Cawston said. “Our people got that taste of being home again, and I don’t see us ever leaving that country again. I think our presence is there and it will continue to be there for many generations to come.”

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Categories / Appeals, International

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