Standing on the front steps of the Supreme Court of Canada on a chilly Ottawa morning, two Sinixt men and one woman wait patiently, wanting to be seen. The woman, Shelly Boyd, who was until recently the Arrow Lakes facilitator for the Colville Confederated Tribes in Washington, holds a hand-crafted sign reading “Older than the Crown.” The case that the court is hearing, Her Majesty the Queen v. Richard Lee Desautel, has been winding through the legal system for ten years.
For these Sinixt, being seen, being recognized in Canada, is what this effort is all about. The Canadian government declared the Sinixt to be extinct in Canada in 1956 after the last member of the tiny Arrow Lakes reserve near Burton died and just before the Columbia River Treaty was signed. The ill-conceived reserve was meaningless to most Sinixt whose efforts to claim their traditional lands and rivers were dismissed by BC and ultimately Canadian authorities. With their land being parcelled out from under their feet in the Columbia River region in the late 1800s and early 1900s, most fled to their southern territory in the United States where they were included in the tribes of the Colville Reservation. Many ended up in Inchelium, Washington. Many others joined their linguistic cousins in the Okanagan.
One of the men on the court steps is Rick Desautel, a traditional hunter, who was sent by the council of the Colville Confederated Tribes in Washington state to harvest an elk in B.C., to share with the community – and to be arrested in the process. After shooting and preparing a cow elk, Desautel called the BC Conservation office and told them what he had done. It took a few tries but finally he was cited for contravening the BC Wildlife Act, charged with hunting without a license and hunting big game without being a resident of Canada.
Desautel and Mark Underhill, the lead lawyer for the Colville Confederated Tribes, argued that the Wildlife Act did not apply to him because section 35(1) of the Constitution Act, 1982, as it has been interpreted by the courts, permits indigenous people to hunt, fish, and practice their culture on their traditional territory. Sinixt traditional territory stretches along the Columbia River from Kettle Falls in Washington to just north of Revelstoke.
In March 2017, BC Provincial Court found in Desautel’s favour. The BC government appealed and lost at the BC Supreme Court and BC Court of Appeal. They appealed again to the Supreme Court of Canada and the hearing was scheduled for May 13 of this year.
For more on Sinixt history in the Revelstoke region, see this feature by Laura Stovel and Shelly Boyd on Indigenous place names. First published in the December 2019 issue of Revelstoke Mountaineer Magazine.
The tribe got busy trying to raise funds to bring bus-loads of their elders and youth to Ottawa for the hearing. Sinixt filmmaker Derrick LaMere – the other man on the steps – produced the film Older than the Crown which showed Sinixt efforts over the decades to be recognized in Canada. Film screenings in Canada and the United States were used to raise funds for this effort.
Then the Covid-19 epidemic hit. The hearing was postponed. The border was closed. And there was no possibility that the youth and elders could go to Ottawa for this historic occasion.
The hearing was eventually rescheduled for October 8. Desautel, Boyd and LaMere were given special permission to cross the border. After being tested at the border and isolating for 14 days they flew to Ottawa. The closest they could come to the courtroom was the steps of the Supreme Court.
“For us it’s really sad that the judges don’t get to look at us,” Boyd said. “They don’t get to look at a whole roomful of Sinixt. We did all this fundraising. We did all of these things to bring all of our people and our drums.”
“Ferry County, which is the county in which Inchelium is located, is the poorest county in Washington State, and for our people to be able to go meant everything. We’ll do a celebration later but we wanted the Supreme Court judges to see us. It was important to be seen and that doesn’t get to happen now. We hope that maybe they’ll look out the window,” she said.
Still, it was deeply meaningful for them to be there with LaMere filming the journey for an extended version of Older than the Crown.
“It feels, not like pressure but like all of our ancestors are with us but they’re also watching us,” Boyd said. “Like so many more did so much more and suffered so much and lost so much and for whatever reason only three of us could get through. The weight of that presses behind me with the ancestors but also in front of me to my grandchildren and beyond. I definitely feel that I need to pay attention to everything and do my very best at whatever I’m meant to do here.”
Back in Inchelium, the Community Centre was open at 6:30 a.m. so community members could watch the court proceedings live. After the hearing, a group met at the sharpening rock at the historic fishery at Kettle Falls, which was submerged in 1941 by the Grand Coulee dam, the dam that blocked the Pacific salmon from reaching the upper Columbia River. After offering prayers and words of support a convoy of around 10 vehicles drove to the Waneta border crossing to offer more prayers, well wishes for the court case and to express the desire to return to their homeland in Canada.
In the Supreme Court courtroom, the lawyers’ arguments seemed to center around four words, one in particular: “aboriginal peoples of Canada.” Who is of Canada? Who belongs? Can a people be of Canada and not be physically there? Do they belong to a government or to the land that their ancestors have known for millennia?
The stakes are big, with implications for indigenous peoples and provinces/territories all along the Canada-US border. If the Sinixt win their case, this may set a precedent for other indigenous nations whose people were divided by the border. Eight attorney generals from the Canadian government and all border provinces and Yukon territory except Manitoba intervened on the side of the Crown. Twelve indigenous organizations, including the Indigenous Bar Association, the Grand Council of Crees, the Okanagan Nation Alliance and the Assembly of First Nations, intervened on the side of the Sinixt. Each intervenor spoke for five minutes.
The nine justices of the Supreme Court heard these arguments. Several months from now we will know their answer.
For Boyd the answer is clear. “Kʷu Sn̓?ay̓ckstx. Kʷu alá?” she says. “We are Arrow Lakes people and we are still here.”
Watch proceedings from the Oct. 8 Supreme Court of Canada hearing here.