Historic trial on Sinixt rights nears conclusion

U.S. hunter Richard Desautel is seen here outside the Nelson courtroom where the closing arguments for his trial took place this week. He was charged in 2010 for shooting an elk near Castlegar but has pled not guilty based on his aboriginal rights as a member of the Sinixt. - Will Johnson photo

U.S. hunter Richard Desautel is seen here outside the Nelson courtroom where the closing arguments for his trial took place this week. He was charged in 2010 for shooting an elk near Castlegar but has pled not guilty based on his aboriginal rights as a member of the Sinixt.
— Image Credit: Will Johnson Photo

Final arguments were heard at the Nelson courthouse this week in a historic aboriginal rights trialthat hinges on whether or not someone of Sinixt ancestry has the right to hunt on either side of theborder.

U.S. hunter Richard Desautel was charged in 2010 with hunting without a licence and hunting biggame while not being a resident, but pled not guilty based on his indigenous rights to hunt for food,social and ceremonial purposes.

He shot an elk near Castlegar, didn’t have a hunting license, and has never been a resident of B.C.But by asserting these rights he hopes to “erase the terminology of extinction and get thegovernment to acknowledge the Sinixt are still here.”

“I’ll take this fight as far as I can,” he told theStar.

Crown prosecutor Glen Thompson and defence lawyer Mark Underhill laid out their arguments forJudge L. Mrozinsky on Tuesday and Wednesday following a three-week trial in which Sinixt elders,aboriginal scholar Dr. Dorothy Kennedy, ethnology expert Dr. Andrea Laforet and historian RichardHart gave testimony.

The main issues explored included whether granting an American aboriginal rights north of theborder would challenge Canadian sovereignty and whether or not the Sinixt are what the lawyers called a “rights-bearing group” in Canada.

Who is or isn’t Sinixt?

According to defence lawyer Mark Underhill, Sinixt identity is defined by more than where theycurrently live. And though the vast majority of self-identified members of the Sinixt currently live inthe U.S., as part of the Colville Confederated Tribes, he said that shouldn’t negate their rights inCanada.

“The Crown focuses on the move,” he said. “They’ll say there are no Sinixt in Canada today.”

But that’s not the case, according to his submission. He described a “Sinixt diaspora” in which“common threads of culture” hold together an otherwise disparate and disconnected group. Hepointed to Desautel’s family tree as proof that he belonged to it.

Underhill argued that the members of this diaspora, though officially extinct in Canada according tothe federal government, are covered under Section 35 of the Constitution, which sets out thedefinition of aboriginal rights and who is covered by them.

“It’s not the court’s job to tell the Sinixt who they are, or to decide who is or isn’t Sinixt. The courtcannot say Richard Desautel is not Sinixt.”

He said the Sinixt’s traditional territory north of the border has remained important to them, and thetribe’s move was involuntary, following the influx of European settlers and epidemic diseases. Andeven though they left, he said that shouldn’t mean their rights ceased to exist.

“There is no example in North America of an indigenous group giving up their culture voluntarily,” hesaid, urging the judge to consider the implications of her decision.

“You would be saying to the people, some sitting here in this gallery, that you don’t have an identityanymore because you moved and you cannot carry out your culture in your ancestral homeland.That’s the practical consequence of this decision.”

‘You can’t create a shadow Sinixt community’

The main thrust of prosecutor Glen Thompson’s argument was that the Sinixt voluntarily movedsouth and that one person can’t claim rights from two different tribes. Furthermore, he said hedisagrees that the Sinixt diaspora described by Underhill can be “objectively defined.”

“There’s this idea that Sinixt can live anywhere, without roots or a geographic community to live in.But this geographically diverse collective does not have any centralized organization, it hasdisparate individuals making their decisions.”

And many of the people claiming Sinixt ancestry are also members of other tribes, bringing up thequestion of whether they can “bundle” their rights or if they have to choose one or the other.

“You can’t create a shadow Sinixt community,” he said.

Referring to the research and testimony given over the course of the trial, Thompson described howa Sinixt migration started in 1830.

“I’m going to take you through the history and show how and why the move occurred entirelyvoluntarily, and that it was virtually complete by the 1890s.”

However, Judge Mrozinsky took issue with his assertion that the examples given demonstrated themove was voluntary, and said “this is about catastrophic change. This is like aliens coming to Earth.”

She reminded the Crown that it has a duty to take part in the Truth and Reconciliation process, andneeds to keep in mind the devastating effect European settlers had on First Nations upon arrival,including the spread of diseases like smallpox.

‘This is a historic trial’

Desautel was in attendance during the closing arguments, along with tearful members of his tribe.He feels confident about his chances, but figures the fight will proceed to a higher court.

“We started at the first floor, now we’re on the third, so we’re going to keep going up,” he said. “Ithink this is really necessary for future generations of my people. This is a historic trial.”

He would “like to have a say on what’s going on in this part of the world with our ancestral grounds.The pithouses, the pictographs, they are all over this country and people who have moved here haveno idea what their significance is to me and my people.”

As far as he’s concerned, this case is about much more than one person.

“This is way bigger than me. This is about the generation after me and the generation after them.”