A welcome sign on the Colville Reservation in Washington. Photo: Jimmy Emerson<

Not 'extinct': Colville Tribes win appeal in hunting rights case in Canada

More than 60 years after the sn̓ ʕay̓ckstx people were declared "extinct," the Confederated Tribes of the Colville Reservation are celebrating another victory that reaffirms the rights of their citizens.

In a unanimous decision on Thursday, the Court of Appeal for British Columbia confirmed that the sn̓ ʕay̓ckstx, also known as the Sinixt or Arrow Lakes people, can continue to hunt on aboriginal territory in Canada. The favorable ruling marks the third of its kind since the saga began nearly a decade ago.

“We are very pleased that the courts of British Columbia have again held that the sn̓ ʕay̓ckstx people are not ‘extinct’ in Canada and that Rick Desautel, as a sn̓ ʕay̓ckstx descendant, has the right to hunt in the traditional and historic territories of our people in British Columbia,” Chairman Rodney Cawston said in reaction to the ruling.

Desautel had been cited in 2010 and in 2011 for hunting without a license in the British Columbia. The provincial government there considered him to be a "non-resident" because he lives on the Colville Reservation, just across the border in Washington state.

A provincial court, the B.C. Supreme Court and now the Court of Appeal have ruled otherwise. Even though the Canadian government has claimed the sn̓ ʕay̓ckstx no longer exist as a people, their rights have never been extinguished, the decision stated.

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"Imposing a requirement that Indigenous peoples may only hold Aboriginal rights in Canada if they occupy the same geographical area in which their ancestors exercised those rights, ignores the Aboriginal perspective, the realities of colonization and does little towards achieving the ultimate goal of reconciliation," Justice Daphne M. Smith wrote for the court.

"In this case, such a requirement would extinguish Mr. Desautel’s right to hunt in the traditional territory of his ancestors even though the rights of his community in that geographical area were never voluntarily surrendered, abandoned or extinguished," Smith continued.

The territory of the sn̓ ʕay̓ckstx people stretches from the Arrow Lakes region in British Columbia to the present-day reservation in Washington. They freely exercised their rights in that area without regard for the border between U.S. and Canada, according to the tribe.

The situation began to change in 1846, when the international boundary was formally established by treaty. Then in 1896, the B.C. government passed a law declaring that non-resident "Indians” lack hunting rights in the province.

According to the tribe, that's when many sn̓ ʕay̓ckstx descendants were forced to live in Washington on a more permanent basis Then Canada claimed they were "extinct" following the death of Annie Joseph in 1953. She was one of the sn̓ ʕay̓ckstx who stayed on her aboriginal territory in British Columbia.

Upper Arrow Lake in British Columbia, Canada, falls within Sinixt or sn̓ʕay̓ckstx territory. Photo: Gwk

As a result, the Canadian government does not consider sn̓ ʕay̓ckstx descendants to fall under the Indian Act so they aren't treated the same as other Indigenous peoples in Canada.

“The Arrow Lakes Band ceased to exist as a band for the purpose of the Indian Act when its last member died on October 1, 1953,” Ron Irwin, a former Indian Affairs minister in Canada said in 1995. “It does not, of course, mean that the Sinixt people ceased to exist as a tribal group.”

But descendants like Desautel, who is a veteran of the U.S. armed forces, never forgot the connection to their homelands in Canada. And Colville law asserts authority over sn̓ ʕay̓ckstx territory in British Columbia as an exercise of its sovereignty.

In reaction to the court's decision Desautel said he is “very gratified to see our indigenous traditions, spirituality, and laws upheld once again, and I will continue my work to strengthen our relationships to the land and with the people of British Columbia.”

Today, the sn̓ ʕay̓ckstx, also known as the Lakes Band or the Arrow Lakes Band, account for more than 2,000 of the 9,000-plus citizens of the Colville Tribes. A total of 12 bands make up the nation, which is recognized by the U.S. government, unlike the situation across the border.

“Once again, the courts have resoundingly rejected the argument that Aboriginal identity can be erased by the imposition of laws, government policy, or an international border," said attorney Mark Underhill, who represented Desautel. "This is an important victory for all indigenous peoples on both sides of the border.”

In addition to the court victories, sn̓ ʕay̓ckstx descendants are beginning to assert more and more of their rights in Canada, including the ability to engage in treaty negotiations with British Columbia. Among them is Dr. Michael Marchand, a former chairman of the Colville Tribes who has suggested pursuing a land claim.

But for now, the tribe is hoping the hunting rights litigation will stop. The B.C. government could try to appeal to the Supreme Court of Canada.

“If the government chooses to pursue a further appeal, we will step up to defend it, and will do whatever it takes to ensure that the rights of our ancestors are preserved for future generations,” Chairman Cawston, who descends from the Lakes, Nez Perce and Okanagan peoples, said, “but we sincerely hope that the government will instead consider the long overdue process of reconciliation with the sn̓ ʕay̓ckstx, as the Canadian Constitution demands, rather than continuing to fight us in court.”

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Court of Appeal for British Columbia Decision
R. v. Desautel, 2019 BCCA 151 (May 2, 2019)

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