Their names might not be familiar to most people but Tomekichi Homma and Richard Desautel share an uncommon destiny 鈥� standing up to a provincial government determined to impose racist laws.
In 1900, Tomekichi Homma challenged the sa国际传媒 law that forbid Asian Canadians and Indigneous peoples from voting. He won his case in the provincial court and the sa国际传媒 Supreme Court. The sa国际传媒 government, however, refused to accept these judgments. Instead, sa国际传媒鈥檚 attorney general appealed to the highest court in the British Empire in his quest to keep Indigenous 颅peoples and Asian Canadians from voting.
The sa国际传媒 government today appears to be repeating that travesty, losing in both the provincial and Court of Appeal and now appealing to the Supreme Court of sa国际传媒 鈥� in this case to prevent the descendants of the Sinixt people who inhabited the Arrow Lakes region from hunting on their traditional territories.
That they should do this when the United Nations Declaration on the Rights of Indigenous Peoples 颅proscribes such action is, well, breathtaking. That they should rely on a disreputable 1846 treaty to deny the aboriginal rights of the Sinixt and turn them into 颅鈥渇oreigners鈥�, raises fundamental questions about the territories known as 鈥淏ritish Columbia.鈥�
Stephanie Kwet谩sel鈥檞et Wood of the Narwhal of Richard Desautel and the Sinixt, members of the Arrow Lakes Tribe, in their fight at the Supreme Court for the right to hunt on their traditional territories.
On Oct. 14 2010, Richard Desautel shot and harvested an elk on Sinixt traditional territory near the Slocan River. He was arrested by sa国际传媒 Conservation and charged with hunting without a license under the sa国际传媒 Wildlife Act.
Desautel and the Sinixt people are part of the Lakes Tribe of the Colville Confederated Tribes based in 颅Washington State. He crossed the border to hunt on Sinixt traditional territory in British Columbia. He has always lived in the United States.
Desautel鈥檚 actions in 2010 were purposeful. He 颅undertook the hunt on instructions from the Colville Confederated Tribes to secure ceremonial meat. He reported his action to local sa国际传媒 conservation officers, who charged him with hunting without a licence, and hunting big game while not being a resident of sa国际传媒
Desautel challenged the charges and the case 颅eventually went to trial, seven years later. The province, then under the Liberals, lost in provincial court. The charges against Desautel were dismissed on March 27, 2017. The sa国际传媒 government appealed the court鈥檚 ruling and this time, with the NDP in charge, lost at the sa国际传媒 Court of Appeal.
Undeterred, the NDP government has taken the case to the Supreme Court of sa国际传媒.
The legal arguments put forward in this case go to the heart of this province鈥檚 history and the unwillingness of some to repudiate a past anchored in settler colonialism and white supremacy.
How did Desautel defend Sinixt rights?
He asserted that he had a lawful right to hunt in the traditional territory of his Sinixt ancestors based on 颅Section 35 (1) of the Canadian Constitution whereby 鈥淭he existing aboriginal and treaty rights of the aboriginal peoples of sa国际传媒 are hereby recognized and affirmed.鈥�
Lawyers representing the provincial government refused to accept Desautel and the Sinixt tribe鈥檚 assertion of aboriginal rights, on the basis of three legal arguments:
鈥� that the Sinixt people鈥檚 aboriginal rights 鈥渄id not survive鈥� the British and American governments signing of the 1846 Oregon treaty, when the boundary line along the 49th parallel was established, cutting through the traditional territory of the Sinixt peoples; or
鈥� that the Sinixt people had 鈥済radually and voluntarily鈥� drifted south of the border and in so doing had discontinued any hunting tradition in sa国际传媒; or
鈥� that an 1896 provincial law (the Games Protection Act 鈥� SBC 1896, c.22) made it unlawful for 鈥淚ndians鈥� not resident in the province to hunt game in British Columbia.
The provincial court judge did not accept the province鈥檚 arguments, nor did the Court of Appeal. And that is how it should be. In fact, it is how it must be if the NDP is going to uphold its own legislation, Bill 41 鈥� the Declaration on the Rights of Indigenous Peoples Act that aims 鈥渢o affirm the application of the Declaration to the laws of British Columbia.鈥�
Article 36 of that Declaration reads as follows:
1. Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders.
2. States, in consultation and cooperation with indigenous peoples, shall take effective measures to facilitate the exercise and ensure the implementation of this right.
How, one might ask, can Attorney-General David Eby and the NDP government justify pursing the Desautel case at all, let alone to the Supreme Court of sa国际传媒 in light of its UNDRIP commitments?
Not only does the pursuit of this case contravene its own laws, it reveals the fundamentally flawed foundations of what we call 鈥淏ritish Columbia鈥�.
The judge underscored that the Treaty of Oregon (1846) was the legal basis for the assertion of British sovereignty, that it imposed the 49th parallel that cut in two the traditional territory of the Sinixt people, but that the Indigenous right to hunt across the border did not necessarily infringe or harm Canadian sovereignty:
[148] Without deciding the point, I am prepared to accept the 1846 [Oregon] Treaty had an impact on the Sinixt鈥檚 prior practice of moving about their territory at will. The Treaty had the effect of imposing a boundary that the Sinixt had and have to acknowledge and live with. It does not follow that this assertion of sovereignty cannot co-exist with their right to hunt in their traditional territory north of the 49th parallel.
This ruling is an attempt to reconcile Canadian sovereignty with that of Indigenous peoples who were sovereign in their own right before 1846. It embodies the spirit of reconciliation 鈥� one that the NDP government refuses to accept.
In rejecting this ruling and appealing to the Supreme Court, the province is now shining a light back on themselves 鈥� what right do they have to deny the rights of Indigenous peoples? They, and the courts, assert that the power of the Crown derives from the Treaty of Oregon.
Few people in this province are familiar with the Oregon Treaty but some Indigenous people know it well. Decades ago, the late Dave Elliot, an Elder of the W瘫S脕NE膯 (Saanich) peoples wrote: 鈥淚t was 1846 when they divided up the country and made the United States and sa国际传媒. We lost our land and our fishing grounds. It very nearly destroyed us, all of a sudden we became poor people. Our people were rich once because we had everything. We had all those runs of salmon and that beautiful way of fishing.鈥�
The Treaty of Oregon gave some people a lot of power and took it from others.
鈥淲hen they divided up the country we lost most of our territory,鈥� recalls Dave Elliot. 鈥淚t is now in the State of Washington. They said we would be able to go back and forth when they laid down the boundary, they said it wouldn鈥檛 make any difference to the Indians. They said that it wouldn鈥檛 affect us Indians. They didn鈥檛 keep that promise very long; Washington made laws over our Federal laws, British Columbia made laws over those Federal laws too, and pretty soon we weren鈥檛 able to go there and fish. Some of our people were arrested for going over there.鈥�
Concerned with the power and destructiveness of this virtually unknown treaty, we began investigating it two years ago and our findings were published in the peer-reviewed journal sa国际传媒 STUDIES (鈥淲hose Land Is It?鈥� Special Issue 204).
We found that before 1846 Indigenous peoples such as the W瘫S脕NE膯 or Mowachaht-Muchalaht exercised their own forms of sovereignty over the land, based partially on 鈥渙rganic concepts of being in which people do not own the earth but, rather, belong to it.鈥�
Building on the work of the geographer Daniel Clayton, we also illustrated that when the British and American governments crossed swords in negotiating the Treaty of Oregon the only basis for justifying their assertion of control was on myths of 鈥渄iscovery鈥�.
Just as the Spanish pointed to Christopher Columbus as their basis for claiming the Americas, in negotiating the Oregon Treaty the British pointed to James Cook, George Vancouver, Alexander McKenzie and David Thompson as their 鈥渄iscoverers鈥� of the Pacific Northwest.
Needless to say, neither the British nor the American government took into account or consulted the 100,000 or more Indigenous peoples who inhabited these territories even though they were well aware of their presence.
Indeed, Henry Howell, a British philanthropist, had written the British foreign secretary during the treaty talks that there were more than 100,000 Indigenous people in Oregon 鈥渢o whom it rightfully belongs, and not in equity to either of the nations claiming the same.鈥�
In other words, the Oregon Treaty and its offspring, 鈥淏ritish Columbia,鈥� embodies a wilful and racist erasure of Indigenous peoples from the land, predicated on the 鈥淒octrine of Discovery鈥� a concept that has been roundly condemned by all Indigenous organizations as well as by the Truth and Reconciliation Commission.
That the province continues to pick away at old wounds, to invoke disreputable imperial agreements such as the Oregon Treaty as justification for their own power, while assailing the Sinixt, Lummi and many others as either 鈥渆xtinct鈥� or foreign is pernicious in the extreme.
It reveals a settler mentality that, intentional or not, can only reproduce the unjust colonial past and systemic racism towards Indigenous people.
In 1902, Tomekichi Homma lost his case when the British highest court validated the racist contention of then attorney-general David M. Eberts that the province could and would deny Indigenous people and Asian Canadians the vote.
David Eby might want to review his government鈥檚 decision to appeal the acquittal of Richard Desautels to the Supreme Court. Otherwise, Eby鈥檚 name and that of his predecessor may be forever associated with racism and injustice.
John Price is a professor emeritus (history) at the University of Victoria; Nicholas XEM纽OLTW瘫 Claxton teaches in UVic鈥檚 Faculty of Human and Social Development and is elected chief of the Tsawout First Nation.
