Verdict restores historic cross-border Native hunting territory

May 8, 2019, 11:51 AM
Sinixt First Nation...
The Sinixt First Nation was deemed legally extinct in 1956; a court case involving a Washington man may reverse that decision. (Sinixt Nation)
(Sinixt Nation)

A decision last week by the British Columbia Court of Appeal means that a Washington man will not be punished for hunting elk in Canada.

It may also mean the legal re-emergence of a Native “First Nation” in B.C. that was deemed extinct more than 60 years ago.

The hunter from Washington is Rick Desautel. Desautel is 67 and lives along the Columbia River in the Ferry County community of Inchelium, where he was born and raised on the Colville Reservation. The reservation is home to several Native groups, including the Arrow Lakes Tribe, which was historically known as the Sinixt, the tribe from which Rick Desautel is descended.

“In the oral history that my grandmother told me, her grandfather was living somewhat in the south part of what would be the United States today,” Desautel said earlier this week over the phone, taking a break from watching his grandson play baseball.

“But we were a nomadic people,” he said. “We moved back and forth; go south for the roots in the spring, come back up to Kettle Falls in the summertime for the salmon, and go north up into Canada for the winter meat of the deer and elk.”

Sinixt traditional lands stretched from around Kettle Falls on the Washington side to nearly 200 miles north to Revelstoke in British Columbia. When the boundary between the US and Canada was established by the Treaty of 1846 at the 49th parallel, it cut off the southern section of Sinixt land from the northern section.

Desautel says that the concept of an international boundary would likely have been difficult for his great-grandfather to understand, being told “there’s an imaginary line running east and west, you can’t see it, but it’s dividing you and Canada.”

And it was this international boundary that nearly a decade ago had Desautel chafing at the hunting regulations in British Columbia that prevented him, as a U.S. citizen, from harvesting elk on traditional Sinixt lands that are now part of Canada.

Pursuing a legal strategy to reestablish Sinixt in Canada

That’s when the Colville Tribes decided to pursue a legal strategy to help reestablish the Sinixt in Canada and secure rights afforded recognized First Nations in that country.

“So when the Tribal Council says, ‘We’ll go do this and we’ll start a court case,’ and they asked me if I wanted to be the test case, I said I would sure love to be the test case,” Desautel said. “My ancestry goes really deep into the Sinixt part of the country there.”

The legal effort began on October 1, 2010, when Rick Desautel shot an elk in British Columbia near Castlegar, and then brought it home to Washington.

The elk he harvested wasn’t for him and his family to eat. It was harvested as part of what Desautel describes as a “ceremonial hunt.”

“When we got it back down to this part of the country here, we took it to the butcher and the butcher cut and wrapped it,” Desautel said. “And then there’s a place over there in the Omak area where we store meat for celebrations. It’s got a gigantic freezer, and we put that meat there and people who are having a winter dance or some type of powwow or something can come draw on it. It’s like a food bank.”

Since he had agreed to be a test case for the Colville Tribe to try and change the law via the courts in Canada, Desautel notified game authorities in British Columbia about what he had done.

“The Canadians, they cited me for hunting without a license, hunting as a non-resident in the area that shot the elk which is right in the center of our traditional hunting area,” Desautel said.

But the gears of justice turned slowly.

“The first lawyer that I encountered in taking on this battle, he asked how old I was at that time,” Desautel said, looking back over the past nine years. “I told him [how old I was], and he said, ‘You know, by the time you get through the Supreme Court with this here case, you’re gonna be an old, old man.”

“I’m starting to believe him,” Desautel said, chuckling.

Judge rules in favor of Sinixt First Nation

The trial on the hunting charges was held in Nelson, BC in early 2017. Desautel was acquitted. According to a CBC story, the presiding judge “also ruled that the Sinixt First Nation has not lost its connection to a huge swath of southern B.C., from Revelstoke to the U.S. border, and still has Aboriginal rights to the territory.”

The decision last week by the B.C. Court of Appeal to uphold this decision is another significant legal victory, and it means that what Rick Desautel did isn’t considered illegal anymore. More importantly for other Sinixt people, it may also mean that the Sinixt First Nation (also known as the Arrow Lakes Band) – which was deemed extinct by the Canadian government in 1956 on dubious contentions that the Sinixt people had dispersed and moved away from their homelands – might be officially recognized again.

There’s still a lot for Rick Desautel and the legal team and the B.C. and Canadian governments to figure out. In the meantime, Desautel says there’s not going to be a stampede of other Sinixt people heading north from Washington into British Columbia with rifles over their shoulders.

“Canada doesn’t have to worry about thousands of us coming over the border,” in search of game, Desautel said. “There’s just not that many hunters … there are maybe only a 100 or so hunters who would travel that far to go hunting.”

Rick Desautel’s attorney is Vancouver, BC-based Mark Underhill. Underhill says that the Sinixt, for all practical purposes, could now be considered non-extinct because of the ruling last week. The provincial government has 60 days to decide if they’ll seek an appeal to the Supreme Court of Canada. If they don’t seek an appeal, the ruling will stand.

“Really, the courts have done most of the heavy lifting on the recognition piece,” Underhill said by phone late Monday, of the multiple legal proceedings that have all been found in Rick Desautel’s favor. “The law of the land is that the Sinixt people are what the [Canadian] Constitution calls an ‘aboriginal people of Canada,’ and they have rights, and so in my view, the government’s going to have a hard time saying they’re not going to recognize them going forward.”

Ideally, though, says Mark Underhill, this will cease being a legally mandated process and become something more meaningful and long-lasting.

“I’m hopeful that the government — both the federal government and the provincial government — will focus on reconciliation rather than litigation going forward,” Underhill said, referring to an ongoing national initiative in Canada of reframing how the government and indigenous peoples relate to each other.

Mark Underhill also says there may be some interesting wrinkles to sort out in terms of how Rick Desautel and other US citizens with Sinixt heritage are treated in the future by U.S. and Canadian border officials.

“One of the things that I know Rick and others [are starting] to think about is: How is it going to work? How’s that border crossing going to work going forward?” Underhill said. “And is there a possibility to have some kind of dual citizenship?”

The 49th parallel, says Underhill, is irrelevant to people with a history stretching back thousands of years.

“I think Rick would say, ‘I’m just as Canadian as I am American,’ Underhill said. “[The Sinixt people] say, ‘Look, that border means nothing to us. That was imposed by other people. It has nothing to do with how we see ourselves, and it certainly has nothing to do with our connection to the land.’”

Back home in Washington, was it more than that connection to the land that convinced Rick Desautel to devote what’s become many years of his life to a court case about hunting rights?

“Looking out on this baseball field, looking at my grandson out here, it’s important to do it for him,” Desautel said.

“It’s a journey back to our ancestry.”

More from Feliks Banel.

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Verdict restores historic cross-border Native hunting territory