Supreme Court Rules Sinixt First Nation Not Extinct and has Rights

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Supreme Court Rules Sinixt First Nation Not Extinct and has Rights

The Supreme Court of Canada has ruled that the Sinixt First Nation is not extinct and therefore the Canadian government's 65 year old claim that this BC First Nation was extinct is invalid. The First Nation, which still exists in Washington state, therefore has hunting rights in Canada. The ruling also means that other First Nations that can show that they existed in Canada before the arrival of Europeans, also have rights, even if their claims have been declared extinct. The court case came about when a Washington Sinixt deliberately hunted an elk in Canada, and turned himself in order to bring the case to court. It is sad that he had to do this to create a case to uphold his people's rights.

Canada's highest court has upended the federal government's 65-year-old claim that an Indigenous nation from British Columbia's Interior no longer exists.

In a 7-2 decision, the Supreme Court of Canada said the Sinixt Nation, whose reservation is in Washington state, has constitutionally protected Indigenous rights to hunt in their ancestral territory north of the border. The ruling means that if Indigenous groups outside of modern-day Canada can prove they descended from a pre-contact society in what is now Canada, they can claim Section 35(1) rights under the Constitution, which recognizes and affirms the rights of Indigenous Peoples. "Persons who are not Canadian citizens and who do not reside in Canada can exercise an Aboriginal right," the decision said. 

The high court said the Sinixt, part of the Salish people who primarily occupied territory in the B.C. Interior and form the Lakes Tribe in northwestern United States, did not "lose" their identity by moving within their traditional territory south of the Canada-U.S. border. "Accordingly, the Lakes Tribe is an Aboriginal people of Canada," the decision said. 

The case began in 2010 when Sinixt leaders sent one of their members, Richard Desautel, to shoot and kill an elk in their traditional territory of the Arrow Lakes region in southeastern British Columbia to reclaim their identity in Canada.  Desautel phoned the B.C. Conservation Officer Service after his successful hunt to report himself and was charged. ...

Desautel is a member of the Lakes Tribe of the Colville Confederated Tribes based in Washington state, a successor group of the Sinixt people. He argued his right to hunt for ceremonial purposes in the traditional territory of the Sinixt is protected by Canada's Constitution. The Crown maintained Desautel didn't have rights protected by the Constitution because he wasn't part of any recognized Indigenous group in Canada. Desautel won at every level of the B.C. court system, laying the groundwork for the Sinixt to be formally recognized again on Friday as an Indigenous people by the Supreme Court of Canada. ...

The decision could have broad implications for other Indigenous groups with ties to Canada, butDesautel's counsel Mark Underhill said those groups would have to show they maintained a continuous presence in territory that became part of Canada. "That will open the door for them hopefully to have their rights recognized in Canada," Underhill said.

Now that the Sinixt have reclaimed their identity in Canada, they are planning their next steps, which may include negotiations with Ottawa and the B.C. government. "We can reunite again with Sinixt members in Canada and rebuild a confederacy of all the Sinixts people to address and work with many of the ministries of British Columbia," said Rodney Cawston, chair of the Colville Confederated Tribes.

The federal government told CBC News it is analyzing the impact of the decision. Cawston said there is a lot of work ahead on things such as figuring out border crossings. ....

The Supreme Court of Canada agreed with the trial judge, who held that the Sinixt engaged in hunting, fishing and gathering in their traditional territory in the Arrow Lakes area before and after first contact in 1811. The trial judge said Desautel was exercising his traditional right to hunt for ceremonial purposes guaranteed under the Constitution, and the application of the Wildlife Act unjustifiably infringed on that right. Desautel was acquitted. ...

The Supreme Court of British Columbia also dismissed a summary conviction appeal, as did the B.C. Court of Appeal. The B.C. government appealed to the Supreme Court of Canada on the grounds that it's a case of national significance.  

The Sinixt say they lived in the north-south valley stretching from present-day Kettle Falls, Wash., to Revelstoke, B.C., well into the 1700s. Eighty per cent of their pre-contact traditional territory is in Canada.  Smallpox and the arrival of missionaries, miners and settlers pushed the Sinixt out of the West Kootenay region of B.C. and off their territory. Some moved south to the U.S., taking up residence on the Colville Confederated Tribes reservation in the late 1800s. ...

In 1902, the federal government set aside a reserve for the Arrow Lakes Band, which included a few Sinixt members who remained in their traditional territory in Canada. In 1956, the last living member of the Arrows Lakes Band died and the federal government declared the Sinixt "extinct" and without the rights of a First Nation in Canada.


The Sinixt people are celebrating their Supreme Court victory. 

Rodney Cawston, Chairman of the Confederated Tribes of the Colville Reservation (CCT) and the Sinixt (sn̓ ʕaýckstx) Confederacy, said Friday was a day for celebrating after the Supreme Court of Canada ruled in favour of Rick Desautel’s protected right to hunt in British Columbia given his people's historic ties to the region.

In ruling in favour of Desautel, the Supreme Court of Canada dismissed the Crown’s final appeal in the R v. Desautel hunting case.

“Today’s decision reaffirms that the snʕāyckst are not extinct,” Cawston said in a media release. “Since our people were dispossessed from our traditional homelands, we have struggled to retain our identity because of all the attempts to control our lives through laws not of our own making. This decision will allow our people access to the natural world that our ancestors and Elders told us about,” Cawston added. “Rick Desautel harvested an elk which is one of the staple foods of our existence for ceremonial purposes. His ethical and ceremonial respect of our traditional foods exemplifies the connection our people still need for our cultural survival.”

Desautel, an American citizen and member of the Lakes Tribe of the Colville Confederated Tribes and lives on reserve in Washington State, shot and killed an elk without a hunting license in the Arrow Lakes region near Castlegar on October 2010. Desautel was charged with hunting without a license and hunting big game while not being a resident of BC, after admitting that he shot the elk. But Desautel argued that he was exercising his Aboriginal right to hunt in the traditional territory of his Sinixt ancestors under section 35 of the Constitution Act, 1982 (Canadian Constitution).  He claimed that the Lakes Tribe is a successor group to the Sinixt people whose traditional territory included an area in what is now British Columbia — the place where he shot the elk was within this territory.

The central question for the Supreme Court was whether people who are not Canadian citizens, and who do not reside in Canada, can exercise an Aboriginal right that is protected under the Canadian Constitution.

“Dispossession is not over, and it is not history,” Cawston said. “Today, our people look forward to rejoining our relatives in Canada to reunite our confederacy and collectively address land and other issues that impact our homelands.”

The case revolved around the definition of “Aboriginal peoples of Canada” found in Section 35 of the Canadian Constitution, which recognizes and affirms existing Aboriginal and treaty rights.

This was the first time the Court had interpreted the words “Aboriginal peoples of Canada”. The majority of the judges of the Supreme Court said a fundamental purpose of section 35 was to recognize the prior occupation of Canada by organized, autonomous Aboriginal societies.

The majority said that “Aboriginal peoples of Canada” means the modern-day successors of Aboriginal societies that occupied Canadian territory at the time of European contact, even if such societies are now located outside Canada. Excluding Aboriginal peoples who moved or were forced to move, or whose territory was divided by a border, would add to the injustice of colonialism.

They concluded that groups whose members are neither citizens nor residents of Canada can be considered part of the “Aboriginal peoples of Canada” and claim an Aboriginal right under section 35.

Like other sn̓ ʕay̓ckstx people resident in the United States, Desautel is currently unable to cross the border to sn̓ ʕay̓ckstx territory in Canada.  However, Desautel did travel to Kettle Falls in Washington State in the southern portion of the territory to receive today’s judgment.

“I am honored to be standing here on the rocks where our ancestors fished for thousands of years until the Grand Coulee dam blocked the salmon’s annual  journey,” Desautel said. “I am at the end of my own journey through the court system, and at the beginning of the new journey of reconciliation for our people. I am grateful to the ancestors for their guidance and in helping our rights, traditions and natural laws prevail,” Desautel added.  look forward to the hard work ahead together with the people of British Columbia.”

laine lowe laine lowe's picture

Who were the two dissenting votes? I like to keep tabs on how the Supremes vote.


laine lowe wrote:

Who were the two dissenting votes? I like to keep tabs on how the Supremes vote.

Here are the majority and dissenting opinions with judges names: 

Breakdown of the decision:

  • Majority: Justice Malcolm Rowe said that people who are not Canadian citizens, and who do not reside in Canada, can exercise an Aboriginal right that is protected under the Canadian Constitution (Chief Justice Wagner and Justices AbellaKarakatsanisBrownMartin and Kasirer agreed)
  • Dissenting: Justice Suzanne Côté found that Aboriginal groups outside of Canada’s borders do not fit within the meaning of “Aboriginal peoples of Canada” under section 35 of the Canadian Constitution, and noted that even if they did, Mr. Desautel had not established continuity with the pre-contact group’s practices
  • Dissenting: Justice Michael J. Moldaver found that even if Justice Rowe was correct in holding that Mr. Desautel is entitled to claim the protection provided by section 35 of the Canadian Constitution, he nevertheless agreed with Justice Côté that Mr. Desautel had not established continuity with the pre-contact group’s practices

laine lowe laine lowe's picture

Interesting, the two dissenting votes were from justices appointed by Stephen Harper to the Supreme Court. There have been a few recent rulings that weren't unanimous and I suspect that the dissenting voices might have been part of the Harper appointed group. But hey, maybe I am wrong.


I applaud the ruling however it merely confirms the same rights that the SCC said were in play over twenty years ago. The federal government will ignore this ruling just like all the rest.


Here's more on the Supreme Court ruling:

In his defence, Desautel admitted to shooting the elk and claimed that it wasn’t illegal.

He disputed the charges by arguing he was exercising an Aboriginal right to harvest under Sec. 35 of the Canadian Constitution.

Justice Suzanne Côté disagreed with Rowe, saying Sec. 35 rights don’t extend to Indigenous Peoples living outside Canada.

“A verdict of guilty should be entered on both counts of hunting without a licence and hunting big game while not being a resident,” she wrote, “and the matter should be remitted to the trial court for sentencing.”

Canadian law on Aboriginal harvesting rights crystalized in the ’90s when the high court issued a landmark series of controversial, high-profile decisions like SparrowMarshall and Van der Peet.

The Van der Peet ruling in particular laid out a test that courts still use to determine what constitutes an Aboriginal right. ...

Desautel successfully passed the Van der Peet test in B.C.’s lower courts, which acquitted him twice.

The courts accepted Desautel’ argument that he was exercising an Aboriginal right within the boundaries of his ancestors’ traditional hunting grounds.

But the Crown appealed the case and once again suffered a stinging defeat from the provincial appellate court.

Justice Daphne Smith dismissed the Crown’s arguments in no uncertain terms.

“The right claimed by Mr. Desautel falls squarely within the pre-contact practice grounding the right. Hunting in what is now British Columbia was a central and significant part of the Sinixt’s distinctive culture pre-contact and remains integral to the Lakes Tribe,” she wrote.

“The Lakes Tribe is a modern collective descended from the Sinixt that has continued to hunt and maintained its connection to its ancestral lands in British Columbia. Mr. Desautel is a member of the Lakes Tribe.

“Therefore, he has an Aboriginal right to hunt elk in the Sinixt’s traditional hunting territory in British Columbia.”

The Crown, she wrote, was asking the bench to essentially circumscribe when and where Indigenous Peoples could exercise their Aboriginal rights by requiring them to live within the exact same geographical area as their ancestors.

This requirement, she continued, “ignores the Aboriginal perspective, the realities of colonization and does little towards achieving the ultimate goal of reconciliation.

“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.”

The other dissenting Supreme Court judge, Michael Moldaver, said he was prepared to assume Rowe was correct on the question of whether Native Americans can assert rights in Canada, but that Desautel had not passed the Van der Peet test and should be found guilty.

“I would allow the appeal on that basis and impose the same remedy as Côté J.,” he wrote.


This Supreme Court of Canada ruling has important implications for other indigenous groups across North American borders, such as the Peskotomuhkati and the  Wolastoqey who live on both sides of the Maine-New Brunswick border.

The decision says that U.S.-born Indigenous people with historical connections to territory now in Canada have rights under the Canadian Constitution.

"My people are already affected by everything around this ruling, so I'm hoping that this ruling actually helps us to basically reinforce what we've been saying all along: how we are one people, one nation," said Chief Hugh Akagi of the Peskotomuhkati, also known as the Passamaquoddy Nation.

Their traditional territory straddled the St. Croix River, which forms part of the border between New Brunswick and Maine. ...

"Yes, we're divided by territory, a boundary, a border and a river, but the truth is we've been saying to the world that we've always been one people," Akagi said. ...

"Persons who are not Canadian citizens and who do not reside in Canada can exercise an Aboriginal right" under the Constitution, the court said, if they are "modern-day successors of Aboriginal societies that occupied Canadian territory at the time of European contact." ...

The ruling has also caught the attention of a Wolastoqey community just across the Canada-U.S. border from Woodstock, N.B. ...

"I can see this being something that people would be interested in," said Clarissa Sabattis, chief of the Houlton Band of Maliseet Indians. "It will definitely open some things up for some of our tribal citizens who do hunt." 

The Peskotomuhkati have been trying for more than a decade to negotiate a comprehensive land claim agreement with Ottawa and for recognition as a First Nation under the Indian Act.

That would allow for the delivery of federally funded services on the Canadian side of the border.

It is a complex negotiation in part because reserves on the Canadian side were eliminated by the Crown, while two reservations exist on the U.S. side.

Lawyer Paul Williams, who is negotiating for the Peskotomuhkati, said the Supreme Court decision could clarify that the nation is a single cross-border entity.  ...

Akagi said the ruling won't change much in terms of moose hunting because an agreement on moose was reached with the New Brunswick government three years ago. But it could clear the way for other, more complex issues to be resolved. ...

He said last week's ruling reinforces the nation's position in any future discussions.


The following map shows a large expanse of British Columbia was the historical homeland of the Sinixt First Nation from which Canada ended any claim in 1956 because they allegedly extinct. Their actual territory in the US was much smaller, but at least the Americans recognized their right to land in Washington. 

Map of traditional Sinixt land. [From Sinixt Nation online portal.]