The Sinixt First Nation is in the midst of an unprecedented Canadian court battle to win Aboriginal rights to its wildlife-rich traditional territory in B.C. by proving it is not extinct. 

The case, which is financed by the U.S.-based Colville Confederated Tribes, is expected to go all the way to the Supreme Court of Canada, given the implications of a Sinixt win for the Kootenays, the province and another First Nation — the Ktunaxa — which has overlapping claims to the same territory.

Everyone agrees that prior to the arrival of Europeans, the Sinixt were here, their lawyer said yesterday in an interview.

The question is whether the First Nation decided to move south to farm, as the Crown argues.

"What's at stake here for First Nations is hopefully the courts affirming you don't lose who you are simply because you move around," said Sinixt lawyer Mark Underhill.

According to the Canadian government, there is no Sinxit First Nation and that means no Aboriginal hunting rights.

Closing arguments began Monday in a provincial courtroom in Nelson B.C.

Sinixt exit forced

Court heard that the Arrow Lakes or Sinixt First Nation was declared extinct for the purposes of the Indian Act in 1956.

Sinixt members are fighting to prove they hold Aboriginal land rights in the West Kootenays and traditional territory in Nelson and Castlegar B.C.

Historical records suggest the Sinixt moved south to "enthusiastically embrace" farming.

Chief Edward

Researchers say Sinixt Chief Edward in this 1872 photo in the Northwest Museum of Arts and Culture was the last hereditary Sinixt chief of the First Nation known for its sturgeon-nosed canoes. (Northwest Museum of Arts and Culture/Dr Karen Wonders)

Underhill is arguing that it was instead a forced resettlement of a people with 10,000 years of history.

"I will be arguing evidence clearly supports that it was anything but voluntary," said Underhill.

Records show the Sinixt were hit hard by smallpox and forced out by settlers and miners.

The last legally recognized Sinxt person in Canada was Annie Joseph, who died in the 1950s.

They were pushed out by a variety of forces including, unfortunately, we say, a prevailing racist attitude," said Underhill on Monday.

'I say, I'm still here'

This case centres on an American hunter claiming Sinixt ancestry and an Aboriginal right to hunt in B.C.

bc-080801-sinixt-landclaim1

This blue-shaded section of the West Kootenay is the area being claimed by the Sinixt. (Google map/CBC)

Rick Desautel, 64, lives on the Colville Reservation, south of the Canada-U.S.border.

"We got historical past here from time immemorial," he told CBC Tuesday.

In the fall he hunts elk, moose and deer, in what he considers to be his traditional territory near Castlegar.

When he's successful, he phones a B.C. Conservation officer to report his catch.

In 2010, he was charged for hunting without a licence and began his challenge based on his belief he has the right to hunt in traditional Sinixt territory.

It's officially acknowledged that descendants of the Sinixt did move to Washington State or shift west into the Okanagan Nation Alliance in the 1950s.

In the past decade, some have been fighting for sovereignty and descendants do live in the Slocan Valley near Nelson, Castlegar, Trail and Grand Forks, but no reserve or band offices exist there.

The three-week case wraps up this week in a Nelson B.C. courtroom.

Sinixt First Nation

Rick Desautel, centre left with arms crossed, stands in front of the Nelson courthouse with members of the Colville Confederated Tribes, awaiting the start of a hearing into the existence of the Sinixt First Nation in September 2016. (Bob Keating/CBC)

With files from Bob Keating