Canada's Supreme Court Makes Landmark Decision on Cross-Border Rights

By Kaniehtonkie

On Friday, April 23, the Canadian Supreme Court ruled any U.S.-based Indigenous group, whose ancestors lived in Canada before first contact with Europeans - could claim rights laid out in Canada’s constitution.

This landmark decision opens the door to other First Nations with similar ties to assert their rights on matters from hunting to environmental concerns. The Canadian constitution guarantees the right of indigenous people to hunt in their traditional lands.

The case was brought a Sinixt descendant who lives in Washington state. In 2010, Rick Desautel shot an elk without a hunting license on traditional Sinixt lands in British Columbia, intentionally forcing the question of whether his ancestral ties would be recognized across the border.

In 1956, Canada declared the Sinixt “extinct” because members of the nation had either died or were no longer living in the country. Before first contact with the Europeans in 1811, the Sinixt hunted, fished and gathered in traditional territory that stretched from Revelstoke, in what is now British Columbia, to just above Kettle Falls, in what is now Washington state, in the south. Over time, the Sinixt settled in the southern part of their territory, in what would later become the United States.

A trial judge in British Columbia found that a “constellation of factors” led to this migration, not all of them voluntary, and that the group never gave up its claim to its ancestral lands in Canada.

Many of the Sinixt, who had become known as the Lakes tribe, took up residence on the Colville Reservation in Washington state, where Desautel lives. Those in Canada were moved in 1902 to a reserve set up for the Arrow Lakes Band.

The court said the Canadian government may also have to consult U.S.-based Indigenous peoples with ties to Canada when they reach out to domestic-based Indigenous groups on issues -- although the court specified the onus was on U.S. groups to make the Canadian government aware of their potential claim.

Bruce McIvor, a Vancouver lawyer who intervened in the case on behalf of the Indigenous Bar Association said, “The border is the ultimate symbol of colonization for Indigenous people,” McIvor said. It has divided families and territories.”

He said, that Friday’s ruling means their rights “can’t simply be wiped away” by an imposed border.

A spokesperson for the ministry of Indigenous Relations said Canada’s government is “reviewing the decision, analyzing impacts and next steps.”

Federal prosecutors argued the Sinixt were not protected by the rights in Canada’s constitution because they no longer were present in the country. But the Supreme Court agreed with the lower courts and dismissed the federal appeal, ruling that as long as a nation could prove ties to the land from before first contact with Europeans, they did not have to consistently use that land for their rights to apply.

Refusing rights to Indigenous people who were forced to leave Canada “would risk perpetuating the historical injustice suffered by Aboriginal peoples at the hands of Europeans,” the court said.

Desautel said he felt “relieved and jubilation” at the ruling and looked forward to a family gathering to celebrate.