Supreme Court affirms U.S. Indigenous man’s right to hunt in Canada

Canada’s highest court has upheld the acquittal of a Native American hunter on charges of poaching in Canada, arguing the man has a constitutionally protected right to hunt in British Columbia given his people’s historic ties to the region.

Richard Lee Desautel, a U.S. citizen, was charged with hunting without a licence after shooting an elk near Castlegar, B.C., and reporting his kill to provincial conservation authorities.

Desautel defended his actions on the basis that as a member of the Sinixt Nation, whose reservation is in Washington State but whose traditional territory extended into southern B.C., he had an Aboriginal right to hunt protected by section 35(1) of Canada’s Constitution Act.

In a 7-2 decision, the Supreme Court of Canada ruled that members of the Sinixt Nation, who have been declared “extinct” in Canada, have constitutionally protected Indigenous rights to hunt in their ancestral territory north of the border.

The decision means that other Indigenous groups in the U.S. can claim Section 35 rights under the Constitution in Canada, if they can prove they descended from a pre-contact society whose traditional territories extended into Canada.

“…[T]he Aboriginal peoples of Canada under s. 35(1) are the modern successors of those Aboriginal societies that occupied Canadian territory at the time of European contact, even if they are now outside Canada,” Supreme Court majority justices wrote in their decision.

The Sinixt are part of the Salish people who primarily occupied territory in the B.C. interior and northwestern United States.

According to court documents, the first contact between the Sinixt and Europeans was in 1811.

Until around 1870, the Sinixt continued their activities in the northern portion of their territory, located in Canada. In the course of time, a constellation of factors – smallpox, the arrival of European missionaries, miners and settlers – forced the Sinixt people to move to the United States.

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.

Until 1930, members of the Lakes Tribe continued to hunt in B.C., despite living in Washington State. After 1930, despite periods in which no hunting took place, the Lakes Tribe continued to have a connection to the land where their ancestors hunted in B.C., according to court documents.

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.

With files from Olivia Stefanovich of CBC News and The Canadian Press