Historic Victory for Sinixt Hunter Claiming Aboriginal Right to Hunt in Canada
Nelson, B.C. – In a landmark decision, the Provincial Court of British Columbia ruled today that Richard Desautel, a Sinixt descendant resident in the United States, has an aboriginal right to hunt in his traditional territory in Canada.
In 2010, Mr. Desautel was charged with hunting elk as a non-resident, and without a license, near Castlegar, B.C. He is a member of the Lakes or Sinixt tribe of the Confederated Tribes of the Colville Reservation in Washington State, and asserted a constitutionally protected right to hunt in Sinixt traditional territory in Canada. Sinixt territory stretches north from the Colville Reservation to the area in and around the Arrow Lakes in British Columbia. Link to decision here: http://canlii.ca/t/h2ss2
Here is the opinion in R. v. Desautel:
Reported case on notice, where the social service agency attempted to fix the notice issues while the case was on appeal. Fourth District remanded for proper notice.
An unreported case where the trial court refused to apply ICWA because of a lack of written communication from the tribe, though the agency received verbal confirmation of the children’s membership. The case was reversed, also by the Fourth District.
Finally, an unreported case using the “family lore” argument to find there was no notice necessary. Haven’t seen a family lore case in California since 2011. Those cases were all out of the Second District, while this one is out of the First.
The Confederated Tribes of the Colville Reservation, Office of the Reservation Attorney, seeks attorneys with experience and expertise in Indian Law and in working for a tribal government. Expertise in issues related to Tribal Governmental Law and Policy, Water/Natural Resources Law, Economic Development Law, and/or Employment Law. Strong research and writing skills are required. Candidates with litigation experience and experience working with Indian Tribes are particularly encouraged to apply. The Colville Reservation headquarters are located in Nespelem, Wash., and the Reservation contains over 1.4 million acres and provides attorneys the opportunity to work on a variety of important Tribal and Indian Law matters. The Office of Reservation Attorneys is one of the oldest on-reservation tribal government Law Offices, with a strong tradition of excellence.
Here are the materials in Farmer v. United States (E.D. Wash.):
Plaintiff seeks to recover damages for injuries sustained as a result of alleged negligence by Defendant Ron Shaffer. According to Plaintiff’s First Amended Complaint (ECF No.20), he was working for Jones Brothers Construction in Inchelium, Washington on October 25, 2011. Plaintiff was part of a construction crew that was building a pole-style structure for the local Fire Hall/EMT Unit. The structure was being constructed pursuant to a contract between Confederated Tribes Of The Colville Indian Reservation and Jones Brothers Construction. Plaintiff alleges that on that day, “[a]n EMT on duty for the Colville Confederated Tribes EMT Unit, Ronald L. Shaffer, took it upon himself to  help the construction crew.” According to the First Amended Complaint, while Plaintiff was on a ladder setting girder trusses, “Mr. Shaffer negligently swung a sledge hammer and struck [Plaintiff’s] left hand with the sledge hammer causing [a] fracture to his long finger and other injuries.”
Plaintiff sues the United States under the Federal Tort Claims Act (FTCA), 26 U.S.C. §2674. He sues Mr. Shaffer and his wife, presumably, for common law negligence under this court’s supplemental jurisdiction, 28 U.S.C. §1367(a). Pursuant to Fed. R. Civ. P. 12(b)(1), the United States now moves to dismiss the FTCA claim against it, asserting there is no subject matter jurisdiction because Mr. Shaffer was not acting pursuant to the contract between the U.S. Department of Health and Human Services (HHS) and the Colville Confederated Tribes, and furthermore, was not acting within the scope of his employment with the Tribes.