Chapter 5 Sinixt Existence in “Extinction” Identity, Place, and Belonging in the Canada-US Borderlands

Historical Context

The Arrow Lakes Band (Sinixt) were assigned a single reserve at Oatscott, British Columbia, Canada in 1902 on land described as inaccessible, “precipitous granite bluffs” “utterly worthless for agriculture, and very inferior for grazing.”4 The reserve was only reachable via steamboat or by travelling “83 miles over a very poor road” that was often blocked in winter.5 Even the local Indian agent expressed concerns that the reserve was insufficient to meet the band’s needs. Officially, the Arrow Lakes Band consisted of twenty-six people in 1903 and was down to three by 1929. By 1937, Annie Joseph was deemed “the last surviving adult member of the Arrow Lakes Reserve.”6

Around that time, Joseph moved to an Okanagan (Syilx) reserve and lived with an Okanagan Indian Band (OIB) member.7 Understanding that if she married him, she would lose her Arrow Lakes Band status under the Indian Act, she chose not to.8 As the last “recognized” member, she also held the timber rights on the Arrow Lakes Reserve, by far its most valuable resource. In 1952, in an effort to “preserve the Arrow Lakes Reserve with its timber resources, for the Indians,” both the province and the OIB requested amalgamation of the Arrow Lakes and Okanagan Indian Bands, passed by the OIB and Joseph (acting as the Arrow Lakes Band) in 1953.9 This would prevent the Arrow Lakes Reserve from reverting to the province as per the 1916 McKenna-McBride Commission, whereby any lands of a tribe or band who “became extinct” would “revert to the Province.”10 However, it is unlikely that Joseph was informed that capital funds held in trust for the Arrow Lakes Band, along with the land, would also be transferred to the OIB for the benefit of their members alone, and the Arrow Lakes Band members “would gain nothing.”11 Amalgamation was denied by the Canadian government for three reasons: (1) it was a strategy to prevent the land from reverting to the province, (2) only the OIB would benefit, and (3) the distance from the Okanagan reserve would make it impractical.12

Joseph, the last registered member of the Arrow Lakes Band, died in 1953. Without federal approval of amalgamation, her death signalled that “there were no longer any persons who qualified for membership in the Arrow Lakes Band under the provisions of the Indian Act. It [did] not, of course, mean that the Sinixt people ceased to exist as a tribal group.”13 Following Canada’s “extinction” of the Arrow Lakes Band in 1956, Sinixt təmxʷúlaʔxʷ started to disappear from maps, a problem that persists into the present.14 Colonial regimes rely on maps, whereby imaginary lines become reality. Brazilian environmental educators Michèle Sato, Regina Silva, and Michelle Jaber argue that “maps were, and still are, considered a language of power and legitimacy over land, supportive of the imperialist domination of spaces.” Believed to be “ideologically neutral,” they are “key weapons of imperialism” that support colonialism and the “hegemonic power of the ruling classes.”15 The implication is that certain people can exercise rights within borders, while others are excluded. Richard Osburn, an attorney with the Cherokee Nation of Oklahoma, argues, “Long before the arrival of the first European, the Native tribes living along what is now the border of the United States and Canada freely interacted. The idea that an imaginary line could run through their lands and permanently separate them was unthinkable.”16 For Sinixt, the Canada-US border irrevocably divided their nation and təmxʷúlaʔxʷ and became the line between extinction and recognition.

In 1961, shortly after “extinction,” the United States and Canada signed the Columbia River Treaty (CRT), a significant cross-border agreement regarding hydroelectric power and flood mitigation. The Columbia River is the heart of Sinixt təmxʷúlaʔxʷ; with the “extinction” of the Arrow Lakes Band, any potential Indigenous hindrances to this agreement were eliminated. Sinixt are excluded from Indigenous consultation in current renegotiations of the CRT, while the Okanagan Nation Alliance (ONA) and Ktunaxa, claiming Sinixt təmxʷúlaʔxʷ, are included. It is somewhat ironic that a significant cross-border agreement excludes Sinixt, as their village sites mark their presence along its banks and tributaries and dictated who was able to fish the river for centuries prior to the establishment of the US-Canada border.17 Moreover, the Columbia River is now one of the most heavily dammed rivers in North America, preventing returning salmon runs. The loss of salmon, a major food supply, was another significant blow to Sinixt existence in Canada. Decimated by smallpox epidemics and pushed out of their territory by resource extraction and the lack of a viable reserve in Canada, Sinixt survival in their təmxʷúlaʔxʷ became nearly impossible.

This is a common experience of Indigenous peoples across Canada and indeed throughout the world, as several authors argue. Anthropologist Angela Robinson describes the paradox of Aboriginal policy: “Across Canada, colonial and federal policies were guided by the dual fallacies of gradual but progressive assimilation and/or the certain extinction of Aboriginal populations, neither of which occurred.”18 Ojibway legal researcher Dan Shaule, in response to a question about Beothuk “extinction,” stated, “All First Nations are in the position of extinction when someone else controls their definition.”19 Sadly, Indigenous peoples in Canada often “found themselves transformed from independent peoples . . . to refugees in their own land, outnumbered by newcomers and no longer able to support themselves as they had always done.”20

Contemporary Land Claims

The next major border process disrupting Sinixt existence was the creation of the British Columbia Treaty Commission (BCTC) in 1992. BC is somewhat unique in Canada with few historic treaties: Douglas Treaties were signed with eleven First Nations on Vancouver Island (1850–54), and Treaty 8 (1899) lands span the Alberta-BC border. Otherwise, no historic treaties exist in BC, with the vast majority of the province being imposed on unceded Indigenous lands. Through the BCTC, BC entered the contemporary land claims process, as University of British Columbia anthropologist Carole Blackburn argues, to create “investor certainty” for resource extraction on untreated Indigenous territory.21 This has far-reaching consequences for all Indigenous peoples in BC, but most profoundly for “extinct” Sinixt.

To participate in the BCTC, one must have a government recognized by the Canadian state to enter into negotiations—that is, a recognized band. Sinixt, “extinct for purposes of the Indian Act,” have no such government and are precluded from participating. The process is designed to create certainty about which Indigenous governments must be consulted for development projects and possible compensation. Autonomous Sinixt filed a claim in 2008, asserting contention, but they are still ignored in the processes.22 The BCTC signed Completed Treaty Agreements with Ktunaxa in 2013, 2014, and 2018.23 This problem is not unique in the BCTC but rather compounded by Sinixt extinction. As elsewhere in the province (e.g., Nisga’a and Gitxsan), the designation of territory in land claims has “far exceeded the bounds of actual ownership,” which is required in the process.24

It appears that in the rush to create border certainty, problematic aspects of the BCTC are ignored, even for recognized bands. Judith Sayers, former chief of the Hupacasath First Nation, assistant law professor at the University of Victoria, and chief negotiator for sixteen years, said boundary issues were to be resolved prior to an agreement in principle, but “these governments want settlements so bad that they don’t care about overlap. It is first-come, first serve.” This has resulted in First Nations turning to the courts for resolution.25

Anthropologist Brian Thom furthers, “Ironically, the judges and negotiators have accepted the simplistic, generalized model of the Nisga’a in favour of the complex and nuanced one of the Gitxsan and Wet’suwet’en. This raises the question of how much information the courts or negotiators are willing to take.”26 Similarly, the ONA argues that Sinixt rights “exist in Syilx Okanagan Territory” and that “we are all related and we remain related to the present day.”27 However, the ONA only represents ONA members, and rights do not extend to non-ONA members. Thus, to clear title, agreements are reached in spite of contention. The BC Assembly of First Nations has raised similar concerns: “While there may be an assumption in BC that the proper aboriginal title holder is being represented in Treaty Negotiations, in the context of true recognition followed by reconciliation, this problem with the BC treaty-making process raises serious questions regarding with whom Canada should be, and may currently be, negotiating.”28

In an open letter to BC government officials, the ONA outlined challenges they face in the BCTC:

For far too long, the Okanagan Indian Band has been forced to defend Syilx Okanagan territorial boundaries against encroachment from other First Nation communities attempting to assert and claim interests within Syilx Okanagan territory. The unnecessary burden of defending our territorial integrity simply because [of] the provincial government’s inability to sort out its own internal processes is completely unacceptable. Our community finds itself in this position time and time again with no resolution to this long-standing issue simply because the province ignores its own obligations to deal with proper Title and Rights holders in a matter that is consistent with the legal realities in a post-Tshilhqot’in era.29

Overlapping boundaries claimed by those able to participate in the process are discussed and debated, while Sinixt are ignored. Borders of “extinct” peoples are seen as inconsequential, if they are acknowledged at all. As historian Sheila McManus states, ignoring and erasing all traces of Indigenous peoples, including their territorial borders, is at the very heart of the colonial process.30

The overarching political context makes it unlikely that the British Columbia Assembly of First Nations (BCAFN) will support Sinixt claims. BCAFN Grand Chief Stewart Phillip is the former chair of the ONA, currently claiming Sinixt territory and engaged in border disputes with Ktunaxa, who are also claiming Sinixt territory.31 While the BCAFN and recognized bands acknowledge that there are problems with the process between colonially designated bands, they are silent regarding unrecognized or “extinct” Indigenous peoples.32 Thus, not only does the BCTC create borders for consultation; it also solidifies the border of existence or extinction for Sinixt in Canada. Lines drawn on maps become reality.33

While the situation may seem dire, there are glimmers of Sinixt recognition in Canada. In 2017, in exchange for land for road development in Syilx (ONA) territory in Kelowna, BC, the Westbank (ONA) Band was offered land in Sinixt təmxʷúlaʔxʷ, ironically farther from their territory than the Arrow Lakes (Oatscott) Reserve. The Regional District of the Central Kootenay (RDCK) directors took the position that they would not support the settlement until Sinixt extinction was addressed.34 Autonomous Sinixt and the Colville Confederated Tribes (CCT) in Washington State opposed the transfer, and the CCT demanded consultation, launching a court case.35 The CCT press release stated, “We have filed this court case because our repeated requests for a proper and respectful dialogue with Canada and Westbank have been completely ignored, and we believe that the Sinixt people have a right to be consulted about such an important development in their traditional territory in British Columbia.”36 Thus, when Sinixt are included by the ONA as members depends on political expedience. When in competition over control of resources, the ONA and CCT are no longer one people. Conflicts between Autonomous Sinixt and the CCT are also a complicating factor discussed later in the chapter.

The Courts and Government Borders

Within the context of the land claims process and an international border between extinction and recognition, Sinixt, like most Indigenous peoples worldwide, are forced into the courts for recognition of their Aboriginal rights and title. Autonomous Sinixt (through the Sinixt Nation Society) have challenged their “extinction” numerous times (e.g., Robert Watt v. E. Liebelt and the Minister of Citizenship and Immigration [1999], Vance Robert Campbell et al. on their own behalf and on behalf of the Sinixt Nation and the Sinixt Nation Society v. Minister of Forests and Range of British Columbia and Sunshine Logging [2004 BCSC 1046]). In the appeal of Campbell v. British Columbia (Forest and Range) (2012 BCCA 274), the CCT and ONA intervened against Autonomous Sinixt and argued they are the ones to be consulted, not Sinixt Nation.37 As a result, the case was dismissed, logging went ahead and destroyed cultural sites that the Sinixt Nation was trying to protect, and the Sinixt Nation Society was ordered to pay court costs for the Crown and the logging company.38 In this case, the right of recognized nations to claim borders of representation was paramount to the destruction of cultural sites.

R. v. Desautel [2017 BCSC 2389 and 2019 SCC 38734], a hunting rights case involving the Lakes of the CCT and supported by the ONA is currently under appeal at the Supreme Court of Canada.39 All three lower court rulings supported the Aboriginal right of Sinixt to hunt in Canada. Remarkably, the Sinixt Nation Society had already secured the right to hunt in British Columbia in 1998 through smum iem matriarch Marilyn James.40 Despite this, an enrolled Lakes member of the CCT was sent to Canada to hunt without a licence and invite charges under BC’s Wildlife Act.41

The Desautel defence revolved around whether Sinixt are recognized as Aboriginal peoples of Canada and thus enjoy constitutionally protected rights as such. In final arguments, the Crown’s position was that the CCT was attempting to “manufacture a group that has some ties to community” but “that community is still just an idea,” and they can’t be a rights-bearing group without “some form of community.”42 The Crown repeatedly referred to Sinixt as “non-resident aliens” and “strangers to the Constitution of Act of Canada” who “abandoned” their rights when they crossed the border.43 Furthermore, “the Canadian government . . . would not, and did not, have a law allowing foreign nationals to have hunting rights in Canada.”44 The fact that Sinixt were part of the CCT meant that they were “no longer the group that they once were” but “foreign nationals attempting to exercise constitutional rights.”45 As “noncitizens, nonresidents” they “can’t hold aboriginal rights” and are “outside the sovereignty of the Crown.”46 At one point in the first trial, Judge Morinzski quipped, “You keep saying foreign nationals to make Mr. Desautel as alien as possible, while talking about a person whose ancestors have lived [in Canada] for thousands of years, who have been absent for less than a century.”47

As border studies historian Benjamin Hoy argues, Canada and the United States interfered with transnational identities and familial bonds that spanned borders, “using Indian status and reservation lands as a cudgel with which to enforce the national orderings . . . envisioned during the nineteenth century.”48 Indigenous peoples crossing borders “violated the sanctity of national spaces.” Although Hoy is discussing early nineteenth-century US-Canada border issues with regard to Indigenous peoples, attitudes of state governments toward transnational Indigenous identity have changed little: “Both countries perceived the transnational movements of Native Americans as a financial liability, a diplomatic risk, a challenge to their sovereignty, and a disruption to their Indian policies.”49 It is noteworthy that both Canada (2016) and British Columbia (2019) adopted the United Nations Declaration on the Rights of Indigenous Peoples, which states in article 36.1, “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.”50 Yet both governments’ positions in Desautel contradict the declaration.

Thus, the Canadian government’s stance on Sinixt in Canada spans from confusion to nonrecognition as a way to eliminate their responsibility. In discussing the conditions for the Lakes diaspora, anthropologist Paula Pryce states,

In Canada, the government never understood the Lakes to be a distinct Interior Salish people whose ancestral territory spanned the international boundary. Instead, they were considered to be either Colville or a hodgepodge of Shuswaps and Kutenais. Rather than acknowledging them to possess legitimate territorial rights north of the boundary, the governments perceived these “Colville” Lakes to be American opportunists who took economic advantage of British and (after 1871) Canadian soil by illegally crossing the line.51

There is a long history of “governmental befuddlement” regarding which side of the border Sinixt belong to, particularly when it comes to excluding them from their təmxʷúlaʔxʷ in Canada.52 Anthropologist James Teit’s unpublished fieldnotes from 1910–13 state,

About twenty years ago, some slight troubles occurred between Lakes and Shuswap at Revelstoke over hunting rights, and the BC government officials took the position that the Shuswaps alone had rights in the district, the Lakes being American Indians from the Colville Reservation, and interlopers in BC. This was entirely wrong, there being no more reason to deny the rights of [Lakes] people in B.C., than Okanogan and Kootenay which . . . also inhabit both sides of the line.53

Moreover, as University of Toronto law professor Patrick Macklem argues, “the unquestioned adherence to basic categories of the Anglo-Canadian legal imagination [is] effected by the denial and acceptance of native difference.” This “denial of difference . . . operate[s] on behalf of domination.”54 The denial of Sinixt as a distinct people with cultural and linguistic differences from neighbouring Indigenous groups with their own territory is not only an eradication of hindrances to development; it is also an effective means to deny their very existence as Aboriginal Peoples of Canada.

These hard borders based on ambiguous and contested understandings persist. In Desautel, Brian Williams (Gitanyow hereditary chief), manager of aboriginal relations for BC Parks, Ministry of Environment, testified that transboundary hunting would “disrupt the apple cart” of Aboriginal hunting rights in BC: “The optics of another group coming in and disrupting that . . . could be upsetting to the First Nations we already talk to. . . . We see it already with a lot of First Nations that have overlapping interests, and placing the Crown in a position to try to determine whose rights take priority over whose, those are difficult conversations.”55 He later testified that the province has no way to effectively monitor how many animals are hunted in BC as an Aboriginal right. Furthermore, because Sinixt are “extinct” under the Indian Act, no strength-of-claim assessment was conducted in the case. If Sinixt are not Aboriginal people of Canada, then apparently, Aboriginal relations are not required to assess their constitutionally protected rights.

Academic Borderlands of Understanding

Concomitant with imposed borders, erasure from maps, land claims, and court cases in perpetuating Sinixt extinction is academic research. As an “extinct” people with no reserve in Canada, Sinixt presence is difficult to establish. There is no band council office in Canada from which to seek research permission in Sinixt territory. Does one go to the CCT in the United States to secure research permissions in Canada? If so, it is unlikely that one would work with Autonomous Sinixt in Canada, given the deep divisions between the two entities.

Moreover, band council representatives can change each election cycle, making long research relationships challenging. I (Barkley) have been living, working, and interacting with Autonomous Sinixt in BC for over twenty years. It took several years after the introduction of the BCTC to see Syilx and Ktunaxa presence in the təmxʷúlaʔxʷ, and a few years after that, the CCT. Over approximately ten years, the CCT has employed three different Arrow Lakes coordinators.56 None of the coordinators sought the counsel of Marilyn James, smum iem matriarch and elder-appointed spokesperson in the “Canadian” təmxʷúlaʔxʷ for over twenty-five years, nor other Autonomous Sinixt, like former CCT councillor Lou Stone.57

Building long-lasting, trusting relationships between settler researchers and Indigenous peoples is challenging at the best of times. When those people live across a border and change every few years, building relationships is particularly difficult. Any attempt at understanding the complexities of Sinixt existence in “extinction” relies on deep research relationships with those deemed extinct and living that reality on a daily basis in Canada. This is also necessary to challenge borderlands of academic truths about the status of Sinixt in Canada.

For academics working with neighbouring bands with status under the Indian Act, it is unlikely that the topic of Sinixt or their extinction will be raised. Rather, maps and borders produced by band councils are taken as fact and may contain territory of unrecognized and recognized peoples. For example, the Ktunaxa’s traditional territory map includes not only Sinixt təmxʷúlaʔxʷ but also those of nations covered under Treaty 7 in southern Alberta.58 At a 2015 meeting of anthropologists and sociologists representing academic institutions from across the province in Ktunaxa territory, this statement of territory spanning several distinct ecological zones from interior rainforest to prairie was presented but went unchallenged. Thus, all in attendance were complicit in Ktunaxa’s problematic construction of borders. What is the role of settler academics in challenging the territorial claims of Indigenous nations? Well intentioned or not, academics contribute to these misunderstandings by not wanting to disagree with their research participants or the band councils who support their work.59

As Australian political scientist Alissa Macoun argues, “White settlers who identify as critical thinkers or progressives can be particularly invested in being good people, in doing good things, in engaging with destructive histories or problematic power structures, and thus most invested in our own innocence.”60 These “constructions of innocence,” combined with the desire of settler academics to be seen doing “good work” in Indigenous communities, can perpetuate Sinixt extinction.61 Settler academic innocence may support Indigenous innocence of Sinixt as a distinct people, perpetuating their extinction. When intra-Indigenous violence is supported by academics, it becomes a monolith built through the complicity of Indigenous people, academics, settler governments, and the courts, “simultaneously enabling and erasing ongoing colonial violence.” Macoun argues that white innocence—and I suggest Indigenous innocence as well—“both erases the state’s implication in existing colonial relationships and morally authorizes their continuation.”62

Are Macoun’s words on settler innocence relevant to Indigenous innocence in claiming Sinixt territory? “Settler [and Indigenous] moves to innocence are those strategies or positionings that attempt to relieve the settler [and other nations] of feelings of guilt or responsibility without giving up land or power or privilege, without having to change much at all.”63 Can the same be said for the BCTC process? Is Indigenous “innocence” of bands claiming Sinixt təmxʷúlaʔxʷ a strategy for relieving their guilt or responsibility for perpetuating Sinixt extinction? Unlike settler innocence, however, as marginalized peoples within both the state and the BCTC process, they do so in an attempt to gain some power or privilege to continue to underserve their communities within the context of settler colonialism.

This “innocence” is the foundation of colonialism; “we are all colonized into innocence,” settler and Indigenous alike. Colonialism is the theft of land and resources from rightful owners.64 Land claims and the drawing of borders are part of the ongoing process of settler colonialism, explicitly designed to ensure the state’s “innocence” in ongoing control over Indigenous peoples and their resources.65

Resulting from the BCTC, the United Nations Declaration on the Rights of Indigenous Peoples, and the Truth and Reconciliation Commission of Canada, territorial acknowledgements are a common feature of many settler gatherings, academic and otherwise, fostering the sense of white innocence that Macoun critiques. Thus, any nation that claims the land is acknowledged. In Sinixt təmxʷúlaʔxʷ, this may or may not include Sinixt. Every time a statement is made about shared territory or territory of another nation, it creates boundaries for understanding the complexities of Sinixt extinction. This then becomes the reality for settlers, who “innocently” reproduce acknowledgements without understanding the complicated inferences.66

In the rush to reconcile something that can never be reconciled—the theft of land and bureaucratic extinction of Sinixt—the complexity of truths is often ignored to reproduce clear borders for a brief acknowledgement of territory. Every time Sinixt are excluded, there is no truth.67 Without truth, there is no reconciliation. Without truth in the courts, there is no reconciliation. Without truth in land claims, there is no reconciliation. Without truth in academic work, there is no reconciliation. As academics, our aim must always be to delve into the complexity and to ask hard questions of ourselves and our research. As Macoun argues, “Complicity should be the starting point for critical encounters, I am advocating an awareness of complicity among white settlers and the ways that we are located within whiteness and coloniality.”68 Taking this further, there is also an urgent need for greater awareness of settler innocence and complicity in neocolonial violence between Indigenous nations.

Another problem is the singularity of identity seemingly demanded by governments and reproduced in research. Someone can have Sinixt, Syilx, and/or Ktunaxa ancestors. Over time, one of those identities may become paramount, and rather than having multiple identities, one becomes Syilx, for example. When one identifies as Syilx, there is the potential for Aboriginal rights not available to Sinixt in Canada, including a reserve land base and access to band council resources. While ancestors may have considered themselves Sinixt in the past, their descendants now consider themselves to be Syilx, or that Syilx and Sinixt are the same and there is no difference between them.69

As Robinson argues regarding Mi’kmaw in Newfoundland and Labrador, governments lumping Indigenous peoples together and ignoring distinctiveness is an effective strategy in imposing one-size-fits-all policy solutions. “This one-identity-fits-all approach to governance asserted a form of neocolonialism that ensured continued and, arguably, increased repression of Aboriginal peoples in the province.”70 In the case of BC, as previous examples demonstrate, the sheer number of different Indigenous groups are glossed over whenever possible in order to simplify the process for colonially imposed governments. Within the BCTC process, this results in Indigenous governments also minimizing diversity and contention if it strengthens their claim, drawing on academia for evidence. This too contributes to borders between Indigenous peoples and creates barriers to understanding the complex history of settlers.

As Thom, referring to Mathias v. Canada (2000), states, even “detailed kinship studies may not always correspond with a First Nation’s sense of contemporary political identity, particularly if two competing First Nations are closely related, but have overlapping or conflicting claims, such as the current Musqueam and Squamish claim for valuable alienated land in Vancouver.”71 Similarly, Syilx and Sinixt speak related Interior Salishan dialects. In this homogenizing process that shuns heterogeneity, the Syilx dialect is presented by the ONA and the CCT as one and the same, further contributing to the erasure of a distinct Sinixt identity.

The work of Autonomous Sinixt, in the words of James, is to convey the “real truth about land and people’s connections to it. Experts, Sinixt, everyone, must put on their bullshit meters to clear their glasses of the dark shades of the past.”72 While the task of experts is to create truths, if the territory is inaccurate and political representation ignores nuance, then no trust can be created with Indigenous peoples. Every time an “expert” ignores Sinixt in their təmxʷúlaʔxʷ, borders of misunderstanding are perpetuated. In the case of the Indian Act, courts, and the BCTC process, ignoring Sinixt realities contributes to their continued “extinction.” The same holds true for territorial acknowledgements. The “colonial fog” must be lifted to understand that Sinixt never ceased to exist in their təmxʷúlaʔxʷ, regardless of how many “borders crossed them.”

Sinixt exist in multiple borderlands: between extinction and existence, between lumping and distinctiveness, between Canada and the United States; between and within Syilx and Ktunaxa land claims, between academic borders of existence and erasure. The multiplicity of borders fixes or erases Sinixt in a multitude of ways, each with its own set of challenges to their very existence as a distinct people. The call to academics in this chapter is to not reproduce those borderlands that deny Sinixt peoples’ very existence as distinct Indigenous peoples of Canada.

Postscript

Since this chapter was written in 2020, there have been some significant developments. The Supreme Court of Canada upheld the lower court’s decisions that Sinixt enrolled as members of the CCT do have the right to hunt in Canada. While the question before the courts was about hunting rights, the CCT repeatedly asserted that the ruling reversed Sinixt extinction in Canada. This is an intentional misrepresentation of the case, as extinction was not before the courts.

The decision affirmed their right to use the land without rights to the land itself. Extinction, the right to be consulted about resource extraction, the ability to participate in the land claims process, and the right to the land itself are all beyond the scope of the Desautel case. The Canadian government’s assertion that the Arrow Lakes Band is extinct for purposes of the Indian Act remains unchanged.

The Okanagan Indian Band (member of the ONA) again filed with the specific claims tribunal (SCT-7004-20) for financial compensation for their loss of the Arrow Lakes Band / Oatscott reserve. Autonomous Sinixt and Ktunaxa Nation requested intervenor status, and both were denied.

The CCT was successful in appealing to the BC Heritage Branch to have the site operator agreement with James rescinded. As part of this process, the CCT has sent out press releases denying that James is Sinixt, despite her Sinixt ancestry being submitted in the Sunshine logging case for all to see. In response, James has reoccupied the Vallican site, an ancient village site the province wanted to turn into a picnic ground and the catalyst for Sinixt resurgence in Canada. James has been protecting this site for decades and has made the small one-room cabin there her permanent residence despite the lack of electricity, running water, or access to wi-fi or cellular service. That remains largely unchanged, with the exception of a solar panel. Her responsibility to protect her ancestors’ graves is a cultural law that she must follow, handed down to her from previous matriarchs. She is not trusting the care of her ancestors to colonial governments, Indigenous or settler. The struggle against colonial forces continues.

Acknowledgements

K. L. Kivi, Craig Proulx, and David Thorsen-Cavers provided valuable feedback. Elizabeth Harwood’s research and editorial assistance were invaluable.

Notes

1. 1. Sinixt are also known as Lakes or Arrow Lakes.

2. 2. On January 5, 1956, Order-in-Council PC 1956-5 passed the “control, management and administration” of the Arrow Lakes Reserve to the province of British Columbia (R. B. Bryce, Clerk of the Privy Council, in a letter to the Governor General dated January 5, 1956, in author’s possession). On January 20, Indian Commissioner W. S. Arneil stated, “We are satisfied that this Band has become extinct” (Letter from W. S. Arneil, Indian Commissioner for B.C. to Land Branch of BC, dated January 20, 1956, in author’s possession). Ronald A. Irwin, Minister of Indian Affairs and Northern Development, in response to a letter written by Jacqueline Heywood, co-founder of the Coalition of Supporters of the Sinixt/Arrow Lakes Nation, circa August 1995, stated, “The Arrow Lakes Band ceased to exist as a band for the purpose of the Indian Act when its last member died on October 1, 1953” (in the author’s possession).

3. 3. Sinixt are not truly “extinct” but rather bureaucratically extinct in Canada.

4. 4. Andrea Geiger, “‘Crossed by the Border’: The U.S.-Canada Border and Canada’s ‘Extinction’ of the Arrow Lakes Band, 1890–1956,” 129.

5. 5. The steamboat was no longer in service at the time; “the termination process had been set in motion.” Geiger, “Crossed by the Border,” 138.

6. 6. Bouchard and Kennedy, Lakes Indian Ethnography, 156.

7. 7. Bouchard and Kennedy, Lakes Indian Ethnography, 156.

8. 8. The Indian Act was imposed on Indigenous peoples, turning them into wards of the state and controlling most aspects of their lives through the band system. “Indian Status” is a legal identity, largely based on band membership; however, having band membership does not guarantee status. Status is required for rights as an “Indian” of Canada. Not all Indigenous peoples in Canada have status, however: “In Canada, more than twice as many people self-identify as Aboriginal than are registered as ‘status Indians.’” Maximilian C. Forte, “Introduction: ‘Who Is an Indian?’: The Cultural Politics of a Bad Question,” 4.

   During Joseph’s time, Indigenous women lost their status when they married unless they married someone with status in the same band. For males, the wife (including non-Indigenous women) was granted the status of the husband. Upon divorce or the husband’s death, the woman lost status. Thus, by marrying an OIB member, Joseph would lose Lakes status and gain OIB status and lose all status as an Indian under the Indian Act if her husband predeceased her. For a longer discussion of Indian status and Sinixt “extinction,” see Lori Barkley and Tonio Sadik, “‘At the End of the Dog’s Tail’: Aboriginal Policy and Sinixt in British Columbia, Canada.”

9. 9. R. H. S. Sampson, Superintendent of the Okanagan Indian Agency, 1952, cited in Bouchard and Kennedy, Lakes Indian Ethnography, 157–58.

10. 10. Geiger, “Crossed by the Border,” 144. This created considerable incentive for governments to bureaucratically erase Indigenous peoples. For a more thorough discussion of bureaucratic genocide, see Dean Neu and Richard Therrien, Accounting for Genocide: Canada’s Bureaucratic Assault on Aboriginal People.

11. 11. L. L. Brown, Superintendent, Reserves and Trusts, June 1953, in Geiger, “Crossed by the Border,” 146.

12. 12. Randy Bouchard and Dorothy Kennedy, First Nations’ Ethnography and Ethnohistory in British Columbia’s Lower Kootenay/Columbia Hydropower Region, 100. Joseph died prior to amalgamation. Bouchard and Kennedy, Lakes Indian Ethnography, 158.

13. 13. Ron Irwin, Minister of Indian Affairs and Northern Development, to Jacqueline Heywood, co-founder of the Coalition of Supporters of the Sinixt/Arrow Lakes Nation, Nelson, BC, n.d., ca. August 1995. “Tribal groups” are not recognized under the Indian Act, only bands. The Canadian government does not deny that Sinixt exist as a people (i.e., “a tribal group”) but rather that the Arrow Lakes Band is extinct. It is through bands that rights, land and resources are controlled under the Indian Act.

14. 14. For example, Pulling Together: A Guide for Indigenization of Post-secondary Institutions by Kory Wilson and Colleen Hodgson excludes Sinixt from their map of “First Nation Territories across British Columbia”: https://opentextbc.ca/indigenizationfoundations/wp-content/uploads/sites/220/2018/01/01-0-first-nations-1.jpg, accessed June 1, 2020.

15. 15. Michèle Sato, Regina Silva, and Michelle Jaber, “Between the Remnants of Colonialism and the Insurgence of Self-Narrative in Constructing Participatory Social Maps: Towards a Land Education Methodology,” 106.

16. 16. Richard Osburn, “Problems and Solutions regarding Indigenous Peoples Split by International Borders,” 471–85. However, Indigenous peoples did have clear ideas about their territories. For Sinixt, once another people came down from the mountains to the valley floor, visiting protocols were required. As Pryce states, “Identity, like territory, is temporal. It moves and flows, never static, growing out of the thoughts and practices and interactions of individuals in the community.” Paula Pryce, “Keeping the Lakes’ Way”: Reburial and the Re-creation of a Moral World among an Invisible People, 35.

17. 17. Marilyn James and Taress Alexis, Not Extinct: Keeping the Sinixt Way, 22.

18. 18. Angela Robinson, “Enduring Pasts and Denied Presence: Mi’kmaw Challenges to Continued Marginalization in Western Newfoundland,” 386–87.

19. 19. Dan Shaule, personal communication to Lori Barkley, Mary 14, 2013.

20. 20. Adrian Tanner, “The Aboriginal People of Newfoundland and Labrador, and Confederation,” 238–52, quoted in Robinson, “Enduring Pasts,” 386.

21. 21. Carole Blackburn, “Searching for Guarantees in the Midst of Uncertainty: Negotiating Aboriginal Rights and Title in British Columbia,” 586–96.

22. 22. “Contention” means more than one federally recognized band has claimed a particular piece of land (i.e., overlapping land claims). As Jean-François Bayart argues, “Liminal nations hang about or complain in the antechamber of the world without knowing when, or if, the usher will let them in.” Jean-François Bayart, Global Subjects: A Political Critique of Globalization, 284.

23. 23. For a complete list, see British Columbia, “Ktunaxa Nation.”

24. 24. Brian Thom, “Aboriginal Rights and Title in Canada after Delgamuukw: Part Two, Anthropological Perspectives on Rights, Tests, Infringement & Justification,” 14. The BCTC necessarily creates contention, as bands are required to claim overlapping territories. As with all bargaining, it is prudent to start high, as final land agreements are far smaller than unceded traditional territories. This creates widespread contention, largely ignored by non-Indigenous governments. By filing a claim, Sinixt were attempting to prevent their təmxʷúlaʔxʷ from being ceded to other Indigenous groups. Unfortunately, this has not been the case, and their claim is ignored by all in the process.

25. 25. Dene Moore, “It’s up to First Nations to Resolve Overlapping Claims: B.C. Treaty Commission Report.” This position has not changed; see Justine Hunter, “Overlapping Land Claims in Wet’suwet’en Territory Complicate Talks with Government.”

26. 26. Thom, “Aboriginal Rights,” 15.

27. 27. The Okanagan Nation Alliance (ONA) is the chosen name for Okanagan/Syilx governance, consisting of seven bands in Canada, each with a reserve. The CCT are also a member of the ONA. Like Sinixt, Syilx territory was crossed by the Canada-US border, and they are also one of the CCT member tribes, which further complicates matters. Okanagan Nation Alliance (ONA), “B.C. Court of Appeal Confirms Rights in Arrow Lakes.” Sinixt had only one band and reserve, compared to the ONA with seven, one of numerous political disparities dating back over a century that affect the BCTC process.

28. 28. British Columbia Assembly of First Nations (BCAFN), “Reconsidering Canada’s Comprehensive Claims Policy: A New Approach Based on Recognition and Reconciliation,” 5.

29. 29. Okanagan Nation Alliance, “Open Letter Re: Opposition to Silver Star Mountain Resort—Splatsin First Nation Memorandum of Understanding,” February 23, 2017 (in the author’s possession).

30. 30. Sheila McManus, personal communication to Lori Barkley, May 12, 2020.

31. 31. See Okanagan Nation Alliance v. Her Majesty the Queen in Right of the Province of British Columbia as Represented by the Minister of Aboriginal Rights and Reconciliation VLC-S-S-146110, 2014.

32. 32. The ONA was “outraged” when an incremental agreement was settled with Ktunaxa, arguing it encroached on Syilx territory. Okanagan Nation Alliance (ONA), “Clark Government Misleads Public for Political Gain.” In response, the ONA launched a civil claim in BC Supreme Court questioning the legitimacy of the BCTC process. CBC News Online, “First Nations Alliance Launches Court Challenge of B.C. Treaty Process.”

33. 33. Noteworthy of all the land claims in BC, Westbank (ONA) is the only rectangle, unimpeded by landscape features like mountain ranges and waterways. BC Treaty Commission, “Interactive Map.”

34. 34. Westbank First Nation—Fauquier Community Meeting, Fauquier Community Hall, Fauquier, BC, October 4, 2017. Gregg Nesteroff, “Updated: RDCK Backs Sinixt over Fauquier Reserve.” Unfortunately, their approval is not required to convert the property to reserve status.

35. 35. “Autonomous Sinixt is an evolving reference indicating independence by Sinixt Peoples in their təmxʷúlaʔxʷ. From the time of Canadian Crown designation of ‘extinction’ in 1956, rejection of such a declaration was immediate by The Peoples, albeit informally. This changed in the late 1980s when a former village and burial site was threatened by road building in Vallican, BC. The site was actively protected by many Sinixt persons who considered themselves Autonomous and acting independently on a matter long over-due. This site has become the longest, peaceful ongoing Indigenous occupation in Canada, under control of Autonomous Sinixt. Autonomy is mandatory in order for Sinixt self-government, separate and apart from an assumption of influence by the Colville Confederated Tribes of the United States. Autonomous Sinixt assert the CCT has no jurisdiction in Canada and therefore has no authority on Sinixt matters or conduct of business in Canada.” Lou Stone, personal communication to Lori Barkley, June 2, 2020.

    When the CCT heard that Marilyn James, Autonomous Sinixt, was named operator of the Vallican site, they issued a statement of intention “to meet with the Province at the earliest opportunity,” arguing that they are the authorized representatives of Sinixt in Canada in BC. Jan McMurray “Marilyn James Signs on with BC Heritage Branch as Vallican Site Operator.”

36. 36. John Boivin, “Consult Before Creating Fauquier Reserve: CCT.” This also speaks to the ability of recognized Indigenous groups with access to money, lawyers, and communication teams to bring territorial disputes before the courts. Autonomous Sinixt simply cannot match their resources.

37. 37. In their opposition to the Vallican site operator memorandum of understanding between James and the province, the CCT cited this case as to why they should be the authorized representatives of Sinixt in Canada. McMurray, “Marilyn James Signs On,” 3. The courts have been silent on who is the authorized representative, as that would require acknowledging their existence as an organized body in Canada (i.e., recognition of Sinixt governance that would need to be consulted).

38. 38. Peter Scott Vicaire, “Campbell v. British Columbia: Costs Awarded to Crown and Sunshine Logging.” Sinixt Nation Society was a registered Society under the BC Societies Act. Those ordered to pay costs were its board members, who were listed as the defendants. This also precludes Sinixt Nation from bringing any cases before the courts until the debt is fully paid.

39. 39. The ONA was very involved in the case, including the selection of witnesses. In commenting on the decision, Grand Chief Stewart Phillip, chair of the Chiefs’ Executive Council of the Syilx Okanagan Nation, stated, “We are pleased that the Court of Appeal has confirmed what we have always known—that the Sinixt (in our language, the sʔalťiḱʷt) were the original inhabitants of the Arrow Lakes region long before the Europeans arrived. We are not extinct” (ONA, “B.C. Court of Appeal”). The use of “we” here indicates inclusion, but the ONA did not respond to CCT over the creation of an ONA member reserve in Sinixt təmxʷúlaʔxʷ. Syilx are not now, nor ever have been, considered “extinct.” The scheduled 2020 date for the Federal Supreme Court Hearing was postponed due to COVID-19. This case has progressed this far largely as a result of the vastly superior resources of the CCT over the Sinixt Nation Society. See postscript for an update on the case.

40. 40. Smum iem translates as “belongs to the women.” In practice, this means that as a matrilineal, matriarchal culture, the responsibility for the təmxʷúlaʔxʷ and everything in it belongs to the women. An Indigenous hunter, following traditional protocols, sought permission from smum iem and shared the meat with them.

41. 41. The elk was processed in Canada and all the meat taken across the border to CCT members; none was distributed to Autonomous Sinixt in Canada going against Sinixt protocols.

42. 42. Fieldnotes, R. v. Desautel, taken by Lori Barkley during court proceedings, Nelson, BC, November 30, 2016, book 1:10. This also speaks to the CCT’s assertion that “the Desautel case has established that the Lakes Tribe of the CCT is [the] representative body” of Sinixt in Canada. McMurray, “Marilyn James Signs On,” 3.

43. 43. Fieldnotes, November 30, 2016, book 3:22; R. v. Desautel file (2016) 23646, Nelson, BC.

44. 44. Fieldnotes, November 29, 2016, book 2:55.

45. 45. Fieldnotes, November 30, 2016, book 3:8; fieldnotes, November 20, 2016, book 3:1.

46. 46. Fieldnotes, November 30, 2016, book 3:14.

47. 47. Fieldnotes, November 30, 2016, book 3:25.a.

48. 48. Benjamin Hoy, “A Border without Guards: First Nations and the Enforcement of National Space,” 97.

49. 49. Hoy, “Border without Guards,” 93. Remarkably, according to the Indian Act of 1876, “Any Indian who resided for five years continuously in a foreign country would lose their status unless the consent of the band with the approval of the Superintendent-General or his agent was first obtained.” Hoy, “Border without Guards,” 94.

50. 50. United Nations, United Nations Declaration on the Rights of Indigenous Peoples.

51. 51. Pryce, “Keeping the Lakes’ Way,” 60. The Treaty of Washington (1871), in part, was intended to address border disputes.

52. 52. Pryce, “Keeping the Lakes’ Way,” 62. Shuswap (Secwépemc) also have a contemporary land claim including Sinixt təmxʷúlaʔxʷ. The Treaty of Washington (1871) addressed outstanding border issues between Great Britain (Canada) and the United States.

53. 53. Quoted in Pryce, “Keeping the Lakes’ Way,” 61 (emphasis added).

54. 54. Patrick Macklem, “First Nations Self-Government and the Borders of the Canadian Legal Imagination,” 394.

55. 55. Fieldnotes, October 12, 2016, book 2:20.

56. 56. These are unelected, paid positions hired by the Colville Business Council, which represents twelve tribes, including Okanagan. As of 2024, there is yet another new representative.

57. 57. Lou Stone, personal communication to Lori Barkley, December 1, 2019.

58. 58. E.g., Nupqu, “We Are Nupqu,” The ONA argue they are claiming Syilx territory as well. See also Pryce, “Keeping the Lakes’ Way,” 31.

59. 59. The First Nations of British Columbia Map at the Museum of Anthropology (University of British Columbia), indicates Sinixt təmxʷúlaʔxʷ with a dashed line, but it is not named as Sinixt territory. Similar dashes appear in Wet’suwet’en, Gitxsan, and Nisga’a territories, but they are named. See Museum of Anthropology, First Nations of British Columbia.

60. 60. Alissa Macoun, “Colonising White Innocence: Complicity and Critical Encounters,” 86.

61. 61. Macoun, “Colonising White Innocence,” 88. This may be compounded by requirements of research ethics boards to consult with First Nation governments.

62. 62. Macoun, “Colonising White Innocence,” 91.

63. 63. Eve Tuck and K. Wayne Yang, “Decolonization Is Not a Metaphor,” quoted in Macoun, “Colonising White Innocence,” 88.

64. 64. Elizabeth Ferguson (Dene Tha), personal communication to Lori Barkley, November 28, 2019.

65. 65. See also Sharon Venne, “Crown Title: A Legal Lie,” 14–17.

66. 66. For example, the city of Nelson’s official land acknowledgement (where the Sinixt aboriginal rights case was heard) states, “We would like to acknowledge that the land on which we gather is the traditional territories of the Sinixt, the Syilx, and the Ktunaxa peoples, and is home to many diverse indigenous persons, including the Metis” (https://www.nelson.ca/) According to Gregg Nesteroff, “Outgoing councillor Purcell says her motion was modelled on what Selkirk College does.” Nesteroff, “Nelson Amends Aboriginal Acknowledgement.”

    When the school district, which includes Nelson, wanted to name nations in their acknowledgement, Lower Kootenay Band Chief Jason Louie “admonished” them, stating, “We’re not going to concede to [including other BC and American Bands] because we’re currently in at treaty process, we’re currently exploring the possibility of rights and title. The moment we acknowledge [those bands], we’re giving up our territory. We’re conceding there’s other First Nations here as well.” Tyler Harper, “Lower Kootenay Band Criticizes Proposed Changes to School District 8’s Acknowledgement.”

67. 67. A significant problem is the multiplicity of “truths” about territory. The argument here is that Sinixt truly exist.

68. 68. Macoun, “Colonising White Innocence,” 90.

69. 69. All of the authors have had this conversation with several people who are members of the Okanagan Nation yet identify as Sinixt and maintain there is no difference.

70. 70. Robinson, “Enduring Pasts,” 385; Thom, “Aboriginal Rights.”

71. 71. Thom, “Aboriginal Rights,” 18.

72. 72. Marilyn James, personal communication to Lori Barkley, ca. 2014.

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