Hunter pushes Canadian court to consider rights of US Native Americans

It was a frosty October morning when Richard Desautel aimed his Mauser 98 bolt-action rifle at a cow elk in the Arrow Lakes area of British Columbia, shot the animal dead and phoned wildlife conservation officers to report what he’d done.

That call, made a decade ago this month, set into motion a plan that was years in the making. Authorities charged Desautel, a U.S. citizen and member of the Lakes Tribe of the Colville Confederated Tribes in Washington state, with hunting without a license and hunting big game while not a resident of British Columbia.

It was what Desautel wanted. It gave him the opportunity to argue that he was exercising his right under Canada’s constitution to hunt for ceremonial purposes on the traditional land of his ancestors, the Sinixt, an Indigenous group that Canada declared extinct more than 60 years ago.

Now he’ll argue his case before Canada’s Supreme Court, in a proceeding that could have sweeping implications for Indigenous groups on both sides of the border. A victory could give more Native Americans in the United States the right to use their tribes' traditional lands in Canada.

The main question before the justices is whether protections afforded to “aboriginal peoples of Canada” by the Constitution Act can extend to groups that don’t live in Canada. But for Desautel, who traveled to Ottawa for the hearing Thursday, it’s about something larger.

“For the Sinixt people, this case - and it sounds almost corny to say - is about their very identity,” said Mark Underhill, Desautel’s lawyer. “Everything is at stake for them.”

The lower courts considered centuries of history.

Desautel, 68, says he is a descendant of the Sinixt, an Indigenous group that hunted and fished in traditional lands that extended north and south of the 49th parallel before and after contact with Europeans in 1811.

British Columbia Provincial Court Judge Lisa Mrozinski wrote in a 2017 ruling that a “constellation of factors” eventually led the Sinixt to “more or less” live full-time in the southern part of their territory, which became part of the United States in 1846 when the Oregon Boundary Treaty established that section of the U.S.-Canada border.

Many of the Sinixt, who had become known as the Lakes Tribe, took up residence in the Colville Indian Reservation in Washington state, where Desautel lives. By the 1930s, they had stopped traveling north to hunt. The Sinixt in Canada were moved in 1902 to a reserve set up along the west side of the Upper Arrow Lake for the Arrow Lakes Band.

After the last member of the Arrow Lakes Band died, Canada in 1956 declared it “extinct” under the country’s Indian Act.

Their descendants, including Desautel, contend that their very existence proves the opposite.

Crown prosecutors argued that Desautel doesn’t hold a constitutionally protected right to hunt in Canada because he doesn’t belong to one of the groups that make up the “aboriginal peoples of Canada” - and that granting him such a right would be incompatible with Canadian sovereignty.

The Crown also said Desautel failed to prove that the Sinixt people’s tradition of hunting before contact was carried out by its modern-day successor group - a test for establishing a right under Canadian law. Prosecutors argued that they voluntarily drifted from their northern territory and traditional practices there.

Mrozinski disagreed and acquitted Desautel. Even if members of the Lakes Tribe moved south, she wrote, there’s no evidence that they gave up their claim to the rest of their traditional territory or that their move was entirely voluntary.

“Whether or not the Sinixt, or Lakes Tribe as they are known, utilized their traditional territory north of the 49th parallel after the 1930s,” she wrote, “I am left with no doubt that the land was not forgotten, that the traditions were not forgotten and that the connection to the land is ever present in the minds of the members of the Lakes Tribe.”

British Columbia’s Supreme Court and its Court of Appeal dismissed the Crown’s appeals.

“Imposing a requirement that Indigenous peoples may only hold Aboriginal rights in Canada if they occupy the same geographical territory in which their ancestors exercised those rights,” Court of Appeal Justice Daphne Smith wrote in the 2019 ruling, “ignores the Aboriginal perspective, the realities of colonization and does little towards achieving the ultimate goal of reconciliation.”

The Crown appealed to the Supreme Court, arguing that the case is of national importance. Its ruling could have far-reaching ramifications.

In legal filings, prosecutors warned of “legal and practical difficulties” that could arise from a decision in Desautel’s favor, including the possibility that other Indigenous groups in the United States with traditional territory divided by the border could be entitled to constitutional rights in Canada. The government would then have a duty to consult with them on projects impacting their traditional lands, such as pipelines.

Several such groups applied for and have been granted intervener status - comparable to amicus curiae, or “friend of the court,” standing in the U.S. courts - in the appeal to the Supreme Court. The Peskotomuhkati Nation, which has communities in New Brunswick and Maine, said in legal filings that it’s “dishonorable” to hold that U.S.-based Indigenous groups do not have rights in Canada.

“If you read the factum for the government, there’s a fear of what we call the floodgates of law,” said John Burrows, a professor of Indigenous law at the University of Victoria. “That if you allowed this example . . . then that unlocks the door to dominoes.”

Many of the major rulings that have established Indigenous rights have arisen from defenses to criminal or regulatory charges. Burrows said it would be “much better to have this done through negotiation or some other dispute resolution process that [is] more systematic.”

Shelly Boyd, a member of the Lakes Tribe who says she is descended from the Sinixt, remembers what it was like as a young girl to learn that Canada considered her “extinct.”

"I thought, ‘That doesn’t make sense. That’s what happens to dinosaurs. That’s what happens to animals,’ " Boyd said. “The reality is that we weren’t thought of as human. . . . You’re not just treated as if you’re less than. You’re actually, in this case, declared less than, declared nothing.”

Desautel says a ruling in his favor would affirm that his decade-long battle was “a journey well spent.”

“The court decision is something that’s in the judicial system that has to be taken care of,” he said. "As for me, being here in my traditional territory, the burial ground of my ancestors, walking the path of my ancestors . . .

“You can’t take that away from me.”