1

The Certainty of Whuplak'n and the (un)Certainty of Extinction: Sinixt in British

Columbia

Lori Barkley, Selkirk College, Castlegar, BC, lbarkley@selkirk.ca

Presented at the Canadian Anthropology Association (CASCA) Conference 2014, York

University, The Certain Uncertainties of Aboriginal Lifeways (Panel 3), Craig Proulx, Organizer

and Chair

Sinixt of British Columbia were declared “extinct for purposes of the Indian Act” in 1956. Being

declared “extinct” is a statement of extreme certainty that belies the reality of their continued

existence as a people, paradoxically acknowledged by the state. Living in the bureaucratic

absurdity of existence in extinction creates particularly oppressive forms of (un)certainty in

Aboriginal-state relations and inter-Aboriginal relations. Within the context of the British

Columbia treaty process, which is designed to create “certainty” for resource extraction and

development (Blackburn 2005), extinction presents a particular form of (un)certainty.

However, Sinixt stand firmly on an unbroken commitment to their whuplak'n (laws of the land)

and smum’iem (matriarchal and traditional Sinixt council assemblies) as certainty of their

existence as a people in otherwise uncertain political contexts.

Keywords: Sinixt, British Columbia, extinction, certainty, smum’iem

After over a century of largely ignoring Aboriginal title and rights in British Columbia, “wars in

the woods” during the 1990s over logging and other resource extraction industries culminated

in a series of high profile protests in unceded Indigenous territories. According to Blackburn’s

research (2005), these “wars” created a climate of uncertainty, causing “investor chill” in the

province. The Premier at the time, stated that the number one issue for investment bankers

was ‘certainty around the land base and the Aboriginal land question.” He argued it was an

“economic fact” “that people are unlikely or less likely to make investment in the land base in

British Columbia if there is less than perfect certainty with respect to who owns the land.”i By

creating certainty around title rights for Aboriginal peoples, it was argued, investors would see

this as a warm welcome to “get on with the business of developing the province”, unfettered.

2

Combined with “wars in the woods”, legal battles challenged the province’s historic position of

denying Aboriginal title.ii Joseph William Trutch, Chief Commission of BC Lands and Works,

1864-1871, whittled away at existing reserves created by James Douglas, arguing lands could be

“more efficiently” and “properly used” by settlers.iii Trutch’s stance, which shaped land policy

in the Province, was that “the title of the Indians in fee of the public lands, or any portion

thereof, has never been acknowledged by government, but, on the contrary, is distinctly

denied.”iv

Wars in the woods, combined with battles in the courts, finally provided an economic incentive,

if not a moral one, for BC to address Aboriginal rights and title. The courts had determined

Aboriginal rights pre-dated the arrival of Europeans, and those rights continued into the

present, albeit largely undefined.v In addition, Section 35 of the Constitution Act of 1982

recognized and affirmed existing Aboriginal Rightsvi — including an attempt at creating “greater

certainty” regarding treaty rights and land claimsvii — forcing federal and provincial governments

to address rights and title.

Ironically, more uncertainty was created with Section 35 rights. Panagos and Grant argued “the

legal certainty that once characterized policymaking” had been “shattered” and past practice

regarding resource extraction “– an approach that allowed both government and industry to

ignore the interests of Aboriginal peoples – [was] no longer viable.”viii In sum, certainty pre-

1982 resulted from ignoring existing Aboriginal rights. With new uncertainties as to what

rights Aboriginal people actually possessed, the BC government was finally willing to enter into

land claims negotiations in order to create “investor certainty on the landscape”. To be clear,

it was not violations of rights that provided the catalyst for change, but rather the government’s

perception that “investor chill” was threatening the economic prosperity of the province.

A BC government representative argued in 2000:

Aboriginal rights and Aboriginal title are out there and it’s impacting decisions

government can make on the landscape. So court challenges and civil disobedience…

it’s causing grief in the primary resource sector in what we can do. And we just need to

get on with developing British Columbia. We can’t with… unresolved Aboriginal rights

3

and title issue out there. So we’re looking at certainty so we know what the rules are

and can get on with business, developing the province.ix

Gehl (2012) argues there is an underlying problem with court challenges. “Mediated by and

through the power of a European and thus foreign court system, with their continued

motivation to deny Indigenous people their rights, the court, who represents the Crown, also

serves to continue to deny Indigenous justice.” Even if the perpetrators and arbitrators of

injustices against Indigenous peoples were not in collusion, or one and the same, the courts

have a limited view on complex, and largely undefined, Aboriginal rights and title. Thus, all too

often the matter becomes one of enforcing civil or criminal law that conveniently ignores, and

therefore successfully avoids, addressing unextinguished rights and title. This is “causing grief”

not only in the primary resource sector, but more significantly for those whose rights and title

are ignored.

In a recent case to extend an injunction against a Sinixt cultural use campx, which contractors

argued is impeding logging, the judge compared the contractor to a private property holder,

asserting that it was a private criminal matter. “If someone camps in your front yard, you call

the police who come and get them out of there. The [contractor] phones the police and

nothing happens. If the protest is of a public nature, that would invite the Crown to charge

them. xi Why translate that into court rather than a criminal charge?”, he asked.

This analogy is striking, not for its uniqueness, but because it is most often used by Indigenous

peoples to refer to colonization of their lands. When Indigenous people, practicing their

culture in their unceded territory, are compared to illegal campers on private land, the

importance of rights and title are clearly not part of the considerations of the court. It was an

astounding revelation of the lack of attention to ongoing historical injustices perpetrated against

Indigenous peoples through policy, and the selective application of laws and rights within the

judicial system. Attitudinal barriers to recognition through the courts may serve to perpetuate

uncertainty rather than create it. Within this context, business cannot get on with developing

natural resources without a costly trip through the courts, even if Aboriginal rights are often

overlooked when compared to the desire to, eventually, get on with business.xii

4

Unrecognized, or extinct peoples like Sinixt, have no treaties to fall back upon, no reserves

from which to organize scarce resources, no band council funding, and limited resources to

mount court challenges in a system that does not recognize their existence as Aboriginal

peoples of Canada under the Indian Act. The question for the Province, within the context of

largely unceded land, is how to “get on with business” and abide by those rights when

extinction is, in reality, uncertain?

The British Columbia Treaty Commission (BCTC) is central to the Province’s certainty

strategy. The requirement of claiming traditional territory in addition to overlapping/shared

territories is also about certainty—no land unclaimed means no possibility of further claims.

When title is settled, governments believe certainty will be created. Even if one nation claims

another’s territory as theirs, this creates a form of certainty. It is “certain” as to which

Aboriginal groups must be consulted, at least from a government standpoint. However, as the

British Columbia Assembly of First Nations (BCAFN), argues: “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.”xiii

Creating lines on maps of rights and belonging cannot create certainty “in the woods” if all

groups do not have an equal ability or desire to participate in the BCTC process.xiv Conducting

business as usual has become impossible in BC’s southern interior with a group of “extinct”

Indigenous peoples asserting their rights. How does an extinct people enter into a process

with the very governments who deemed them extinct, denied their rights, and has steadfastly

held to this error ever since? Extinction should represent certainty of non-existence, but what

happens for contemporary Indigenous peoples in BC who exist in extinction? Being extinct

means the only available avenues to assert rights and title under the Indian Act and other

statutes are court challenges and civil disobedience, the very things the provincial government is

5

trying to avoid through the BCTC process. Thus, this “certainty” rests on an unstable

foundation if extinct people are not actually so.xv

Sinixt, an Interior Salish group of the Upper Columbia Plateau, were declared “extinct for

purposes of the Indian Act” in Canada in 1956, when the last registered member of the Arrow

Lakes Band died.xvi As per the 1916 McKenna-McBride Commission, when the government

determined that a tribe or band was “extinct”, any lands reserved for them reverted back to

the Province.xvii One could argue that Sinixt extinction was about creating a certainty of

outcome for unprecedented hydroelectric development and flood control on the mighty

Columbia River in Canada and the US, a river of critical importance to Sinixt lifeways on both

sides of the border. Marilyn James, appointed spokesperson of Sinixt Nation in Canada, points

to the convenience of extinction in negotiating the Columbia River Treaty (CRT), signed in

1961 – a mere five years after Sinixt were deemed extinct. The importance of this heavily-

damned river system to the economy of British Columbia, and its location in the heart of

unceded Sinixt territory, does provide pause for thought on the rush to extinction for purposes

of the Indian Act.xviii

The question remains: how can certainty be created if a Band has been declared extinct, but the

people are not actually so? What if they resist extinction? What if they too assert their rights

as Aboriginal peoples of Canada? How they not only resist, but also maintain resistance? Given

the challenges faced by recognized Indigenes with a relatively secure land base, how does an

extinct group do it?

Sinixt in British Columbia have not acquiesced to living in extinction. A small group of Sinixt

traditionalistsxix and allies find strength and certainty through whuplak’n, the laws of the land.xx

According to these laws, one must respect the land and its gifts, and have reverence for

everything upon it.xxi It comprises many things, it is identity, cultural practice, and more. One

can understand there are cultural laws that come from their territory, their tum-ula?xw, even

without fully understanding exactly what they are. As with any lifeway, no one practice defines

whuplak’n and there are different levels of practice and participation. Whuplak’n is both elusive

and certain, tangible and intangible.

6

Whuplak’n comes to the people through smum’iem, matriarchal, traditional Sinixt council

assemblies, which guide how people behave. They are responsible for everything and

everybody in the tum-ula?xw. Marilyn James, describes smum’iem as ‘highly sustainable and

eclectic’. It is about social care, service to community, land, ceremony, practice, food and

more. It is intrinsic to their culture and lifeways. She argues that everything exists in the same

way in the present as in the past, but it is out of balance. There are not enough good practices

to balance out greed, corporatization, and nepotism. Thus, in a society that is continually failing

and marginalizing Indigenous peoples, as well as the failings of tribal councils and other forms of

internal dysfunction,xxii there is much to be done.

Women are leaders in educating, organizing, occupying, and maintaining Sinixt lifeways and

territory. Under smum’iem, everything belongs to the women: the good, the bad, and the ugly.

Thus, extinction also belongs to the women. Smum’iem provides strength to the women, and

through them to the men and the rest of the community, to continue a struggle against

seemingly insurmountable odds. In many ways, to an outsider, it seems too much belongs to

the women for them to bear,xxiii but smum’iem provides a solid foundation from which to move

forward.

James relates the following:

Now we are Smum’iem, we are trying to reclaim the women’s place and responsibility within

our cultural group. So that’s our role as women and that means we’re the ones who stand and

speak up when things are going on. We’re the ones who step forward to educate people, and

that means the children. It doesn’t mean we separate everybody out. Our community used to

just mean just Sinixt people. Our community is much bigger now - it’s everybody who lives on

this land. We try to teach everybody to have reverence for this water, have reverence for these

beings, be grateful for a change. But that’s part of our responsibility and how we respond to

our role that is a contemporary role and it’s a very difficult role because we come from an

institutionalized mentality, a patrilineal system.

7

We have to take responsibility. And it’s not easy because men don’t want to give up their idea

[that] a patrilineal system is the good system when we know that it wasn’t the system that

worked on this land.xxiv

Indigenous men and women have experienced generations of institutional, structural, and inter-

personal violence. Thus, it is a challenge for marginalized people to take on these roles,

particularly those marginalized to the point of being told they are extinct, a form of

psychological violence denying their very existence. Therefore, women need to be empowered

to not only take on their responsibilities under smum’iem, but also to challenge patriarchy

within their community, in addition to government policies.

In our family, women rule. We’re taking on our responsibility. … We say this is what goes.

Doesn’t mean that men don’t have an opinion. It doesn’t mean that we don’t listen to them. It

means that we make the decision about what it is that we do. The way we conduct ourselves,

we’re not looking for men to validate us. We have our own validation. It’s not that we devalue

what men have to say, it’s just that if it’s not the right thing, it’s not what we’re going to do.

Men do have a role; they do have a place - it’s a very funny dance to not totally usurp the

men’s position, but place them in a position that they understand that there is value there. And

it’s not just - we’re dictating what your value is - no - we’re validating how to value how you step

up to the plate.

In the colonial process, men had to change over their position, [which] was completely spoiled -

not like the women. We still had the babies, we still fit the family, we still had a role that was

somewhat connected to our former role in society, where men were fishers and hunters and

protectors - all that, they couldn’t do anymore. And so they went to the example of the

patrilineal system and their role began to be defined as ‘we are the boss, do as I say’ and it

became this oppressive role and it’s trying to get men back [to] their role and validity in

responding to the community as a whole, not in a subservient way.xxv

8

The clash of a patriarchal colonial system with a matriarchal traditional system is a common

theme in Indigenous-settler relations. As Goodwin (2011) has argued, in traditional Indigenous

societies both men and women were important. Women were sacred and respected as life-

givers; they were not victims of violence because life-givers are sacred and to disrespect them is

to disrespect the sacred. Therefore, men stood in front in traditional communities to protect

the women, the sacred life-givers. Thus, part of the work under smum’iem is to restore more

traditional gender roles and balance the power between them.

Well, you know, you live your life a certain way. You either accept responsibility or you don’t.

As a woman, every woman has a choice. They accept responsibility to take back the power of

women, or they don’t. The same with men. They accept the responsibility to have a role that is

supportive of women, or oppressive. You know, like it’s an actual mind set choice of how you

think about things and how you respond and as a woman…. You don’t only have responsibility

as a woman to take back your power as a woman because when you do that you’re also

empowering your children with that strength. Secondly, as an Indian, I’m not only a woman, I’m

an Indian woman. You know, as a matter of fact, I probably define myself as, you know, above

everything else, an Indian woman, and so I have responsibilities to this land, I have

responsibilities to my culture, to my group, to all of those things.xxvi

These traditional practices serve a people existing in extinction with limited resources very well

in contemporary times. As James argues, it is about taking responsibility for the here and now

in her community. Contemporary smum’iem is expressed through, for example, buying

groceries and food vouchers for people who cannot otherwise get food, it is about getting

together as women to do “activities as women—together”.xxvii The actions of the present are

connected to and affirm the values of the past in building and maintaining community as

women’s work, with a deeper spiritual meaning. Nancy Perkins Wynecoop’s biography of her

grandmother, a Sinixt woman who lived in the 1800s states: “There was a vital meaning in the

smallest and hardest task, for to serve was a privilege. It was a door of entrance into realms of

the spirit where faith lifts one into unexpected experiences.”xxviii

9

Smum’iem is not only about commitment to a particular way of life that connects the present to

the past, and one’s actions to the sacred, it is also about validating the important roles of

women and living as smum’iem. Taress Alexis, daughter of Marilyn James, explains it further:

I think it is just displaying and carrying through with actions that aren’t in a colonial mindset. It

is like going out and working and being in the community and showing people that there is a

presence. There is a Sinixt presence but there is also a women’s presence, and that’s to be

valued and that knowledge will be passed down and won’t be wiped away.xxix

The importance of one’s actions through presence is a way to address the patriarchy of

colonialism, not by talking, but by acting and experiencing, as James argues.

I think the only way that we can educate the men is through example and experience of them

seeing, observing, experiencing what the women are doing and how they are doing it.xxx It’s just

like everything else - the colonial mindset has been around for a hundred years - it’s wiped out

a lot of things. You have to set an example and that’s by doing, not by sitting back and waiting

for permission.xxxi

A “big part” of what women do as smum’iem is about creating community and responding to

the needs of one’s community by ‘looking through one’s own eyes, feeling with one’s own heart

and responding with one’s own being’. As we sat on the porch of “the big house”, James

explained smum’iem by pointing to young women out with children in various locations visible

from the porch. ‘No-one told them what to do; no-one asked them to play with the children

while others were busy’. “Identify what the needs are and who in the community needs to do

that. Nobody needs to be told what to do.” Being self-directed is an important aspect of

smum’iem.xxxii

This all sounds wonderful, but not without challenges when facing a “tattered and torn, shabby

social fabric”.xxxiii As James states:

We don’t even know how to be a community. So how do we do that? We have to create value

in who we are, in what we are. Part of creating that value is how we respond in good ways to

those things out there. And to have the backbone and strength to stand up against the bad

things out there, because there’s lots of that too.xxxiv

10

When asked how the women handle the challenges, James’ response seems simple. “The only

way that I respond is, I get up every day I keep doing what I’ve always done.”xxxv However, it is

not simple, as Alexis elaborates:

That’s all you can do is just stay on top of it, just keep doing the work that you’re doing.

Because you do get discouraged; you realize that all the challenges just pile up and pile up and

you just want to quit. And it all just comes crumbling on top of you and you say “I give up - I’m

going to hide in my shell and go away”. So what you have to do is just have to keep getting up

every morning and doing what you’re doing.xxxvi

The most significant challenge in getting up every day is living in extinction. A history of

disease, displacement, dispossession, colonialism, the Indian Act, followed by extinction, creates

significant challenges.

If you look at just that, that we’re declared extinct, that we’re fighting the Canadian

government, we’re fighting the provincial government, we’re fighting BC Hydro, we’re fighting

Columbia Basin Trust, we’re fighting the ignorance of the public, we’re fighting this very

institution. We’re being vocal about the collusion in an act of genocide against our people and

there’s plenty of ignorance out there and there’s plenty of arrogance and there’s plenty of greed

and all that corporate mongering crap that stands against it. If we looked at that, it would

become insurmountable. But if we looked at, we’re here, as long as we’re here, we’re not going

to let them play the extinct card while I’m standing here looking in your face saying “Oh no you

don’t”.xxxvii

Again, Alexis speaks to the challenges of taking on this seemingly insurmountable struggle.

[You can] not let it crush you - because if you’re not ignorant and you understand all these

different layers of what’s going on in the world, and you’re funneling it in, you have to be pretty

mentally secure and stable, because if you do know all this stuff it just totally annihilates you,

crushes you. It’s being strong enough to hold all that knowledge.xxxviii

Both women spoke of successes in creating awareness of Sinixt existence in the broader

community. This was not an easy task, as there is no Reserve in the area that signals their

11

presence to the settler population. When I first moved to the area fifteen years ago, I was told

no Indigenous peoples lived here. I found it highly improbable that no Indigenous people

settled along the banks of the mighty Columbia River, or its tributaries, all teeming with salmon

and other fish before the dams. In a relatively lush interior rain forest there had been no

Indigenous peoples? The multitude of archaeological sites in the area, clearly visible pithouse

depressions, village sites, pictographs, and historical records all pointed to Indigenous absence

as convenient colonial fiction.xxxix

There is, and has been, an Indigenous presence for centuries,xl even though that has been

greatly complicated by the BCTC process. Neighbouring Bands, recognized under the Indian

Act, are asserting their presence in an effort to shore up their own land claims in what Sinixt

consider their tum-ula?xw. So although there is a marked difference in being able to deny an

Indigenous presence in the area, this is complicated by land claims of other nations and their

actions to support them.

The increased awareness of Indigenous presence by settlers is complicated by Indigenous

presences —plural. The discussion turns not to whether there is an Indigenous presence, but

whose presence is legitimate. From a settler perspective the question is who has the right to

claim which land as their unceded traditional territory?xli From a Sinixt perspective, the

question is who has responsibility to the land?xlii Their tum-ula?xw is their responsibility under

whuplak’n and not that of others who have their own territory and responsibilities within it.

The modern-day treaty process pits Indigenous groups with already vastly reduced territories

against each other in an effort to secure enough for their own. xliii As James argues: “The way

that the government is engaging Indian people in this country is creating levels of contention

and building disparity among Indians, from Indian to Indian."xliv

If an intention of the BCTC process is to create certainty for investment, in Sinixt territory it is

creating more uncertainty. Even though there is “contention”, BC Timber Sales and the

Ministry of Forests continue to grant logging concessions despite it. xlv A contributing factor to

“contention” is the lack of required consultation. However this too is uncertain, as sometimes

Sinixt are consulted, but more often it is only recognized Bands. Currently one blockaded

12

logging contractor is awaiting the outcome of a case before the courts with another contractor.

Extinction is not as certain as would be expected, but rather another mechanism contributing

to uncertainty.

A Department of Indian Affairs employee referred to pre-treaty process British Columbia as

“free enterprise and unfettered resource extraction in which the rights of Aboriginal people

were completely ignored”.xlvi “They’ve marginalized Aboriginal people at every turn, did

anything they wanted with the land, dammed it, logged it, if Indians didn’t like it that was too

bad.”xlvii “They’ve had a really good run and don’t want to see it end. They did whatever they

wanted on the landscape. It’s been ‘let the good times roll,’ and letting the good times roll

generally comes from exploiting land or people.”xlviii If this is the situation for recognized

Indigenes in BC, what of the extreme marginalization of the unrecognized? If there is so little

consideration for the recognized, what must it be like to have one’s very existence denied?

Extinction should indicate that there were people who existed, acknowledged by the state in

the “granting” of a reservation for the “Arrow Lakes Band”. Furthermore, their “extinction”

occurred in contemporary times, 1956. This ought to make comprehension by the state easier

than the more usual ‘turn of the century-style extinctions’ where documents are sparse and

unreliable, and living memory is absent. So how do governments go in one lifetime from

recognition of existence, to considering them extinct, to Sinixt presence in courtrooms

asserting their existence and right to be consulted, arguing that the news of their extinction has

been greatly exaggerated, to granting others rights over lands once acknowledged by the state

as Sinixt territory?

Awareness of existence “does not necessarily create change in people’s attitudes. That’s a long

time coming. That’s … generations of work” says James.xlix In a relatively small and sparsely

populated community, heavily dependent on logging and mining for employment, there are

barriers to changing attitudes. Extinction serves the state and resource extraction industries

very well. The desire to “get on with business” and for settlers to “get along” in a sparsely

populated region makes it challenging for a small group of extinct Indigenous peoples to define

13

their own situation not only how they see it, but particularly according to whuplak’n, according

to their laws of the land, not the state’s.

We’re the people saying “We don’t want to be extinct anymore.” We’re the people saying, “This is

a very unfair practice, this is genocide” And people … say to me, “You have no right to use that

word genocide, Marilyn James.” And I say … “When you’re declared extinct and you live your f---

ing life as an extinct person, you can decide what word fits”.l

James argues what is needed most is a change in the settler population. “White people don’t

have an Indian lens and it will take a while for white people with that lens to stop the genocide

and allow Indian people to exist with their cultural practices, free from abuse. The level of

disrespect and dishonor by the majority of the settler population is unconscionable”.li How in

fact, is it conscionable for settlers and governments to deny the existence of Sinixt in BC when

we live in the same community, with centuries of Sinixt occupation deeply etched in the

landscape?

For Sinixt, certainty does not come from the state or settlers, it comes from whuplak’n. The

state is irrelevant to these laws, which they are required to follow regardless of any

government or settler stance. Whuplak’n defines Sinixt, not the state.lii Although the future of

Aboriginal rights and title within the province are uncertain, Sinixt in BC are certain of their

existence, belonging to their tum-ula?xw, their commitment to whuplak’n, and the active presence

of smum’iem. Sinixt rely on a certainty far deeper, more meaningful, and more responsive to

the needs of their community than that any settler government deeply entrenched in a colonial

mentality could ever provide. So long as they exist in extinction, certainty for investors will be

elusive. Sinixt in BC are quite certain of their existence and if creating uncertainty for

investment and resource extraction is a mechanism for the others to recognize what they

know to be true, then so be it.

References

Barkley, Lori and Tonio Sadik

14

2014 At the end of the Dog’s Tail: Aboriginal Policy and Sinixt in British Columbia, Canada

(publication pending)

Blackburn, Carole

2005 Searching for Guarantees in the Midst of Uncertainty: Negotiating Aboriginal Rights and

Title in British Columbia. American Anthropologist 107(4):586-596.

Bouchard, Randy and Dorothy Kennedy

2005 First Nations’ Ethnography and Ethnohistory in British Columbia’s Lower Kootenay/

Columbia Hydropower Region. Castlegar BC: Columbia Power Corporation.

British Columbia Assembly of First Nations (BCAFN)

2013 Reconsidering Canada’s Comprehensive Claims Policy: A New Approach Based on

Recognition and Reconciliation (Discussion Paper), July 16.

Canadian Press 2014 B.C. Environmental Assessment Decision Reversed. Huffpost British Columbia, April 16.

Retrieved April 17, 2014 from http://www.huffingtonpost.ca/2014/04/16/bc-

environmental-assessment-reversed_n_5161766.html.

Charet, Eloise

2014 Thinking of You. Voices from the Valleys (letters to the editor). The Valley Voice, March

12:5.

Fisher, Robin

1977 Contact and Conflict: Indian-European Relations in British Columbia, 1774-1890.

Vancouver: University of British Columbia Press.

Gehl, Lynn

2012 Canada’s Court system: A hostile place for Indigenous people. November 7. Retrieved

April 17, 2014 from Rabble.ca http://rabble.ca/news/2012/11/canada%E2%80%99s-court-

system-hostile-place-Indigenous-people.

Goodwin, Darla

2011 Aboriginal Feminisms: Ariana Barer’s conversation with Darla Goodwin. The F Word:

Vancouver’s Explicitly Feminist Radio Show. CFRO Vancouver Coop Radio, May.

Retrieved April 4, 2014 from Rabble.ca http://rabble.ca/podcasts/shows/f-

word/2014/03/Aboriginal-feminisms

McMurray, Jan

2014 Sinixt Nation representatives arrested at Perry Ridge. The Valley Voice, March 12:1.

Okanagan Nation Alliance (ONA)

2013 Clark Government Misleads Public for Political Gain. Okanagan Nation Alliance,

http://www.syilx.org/2013/04/clark-government-misleads-public-for-political-gain/, April

23, accessed November 20, 2013.

15

Panagos, Dimitrios and J. Andrew Grant

2013 Constitutional Change, Aboriginal rights, and mining policy in Canada. Commonwealth

and Comparative Politics. 51(4):405-423.

Pryce, Paula

1999 ‘Keeping the Lakes’ Way’: Reburial and the Re-creation of a Moral World among an

Invisible People. Toronto: University of Toronto Press.

Wynecoop, Nancy Perkins and N. Wynecoop Clark

1985 In the Stream: An Indian Story. Spokane, Washington.

i Glen Clark, Speech to the Union of British Columbia Municipalities, September 25, 1998 in Blackburn 2005:590. ii Fisher 1977:171 iii Fisher 1977:162 iv Fisher 1977:171 v Calder v. Attorney General of British Columbia (1973), determined that Nisga’a Aboriginal title existed in the past, but resulted in a split decision as to its continued existence into contemporary times. Following Calder, Regina v. Delgamuukw (1997) affirmed unextinguished Aboriginal rights in the province (Blackburn 2005:589-590). vi It is important to note that Section 35 did not “grant” or “create” these rights, but rather affirmed existing rights. vii Section 35(3) states: “For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.” (emphasis added) viii Panagos and Grant 2013:406. ix Conversation with author, March 17, 2000 in Blackburn 2005:587. x The purpose of the cultural use camp is to carry on Sinixt lifeways and healing the land, practicing their culture according to whuplak’n. This differs from a blockade in intention. The intention of a blockade is a response to the infringement of rights by settler society, while a cultural use camp is about Sinxit culture and lifeways, without any referent to the colonial state or their actions (Catherine Fisher, personal communication to Lori Barkley, April 23, 2014). That said, the location of the cultural use camp is strategic. xi Earlier the Judge stated that since “the protest was on YouTube, [this] may turn contemptuous activity into criminal activity because it was public.” He admonished the Crown for not proceeding with criminal charges and invited the Crown to prosecute, rather than requiring the contractor to do so. Justice McEwan, Galena contractors v. Zarelli and Others. Nelson, BC, March 03, 2014. Arrests were made the next day and Crown proceeded with charges, currently before the courts (McMurray 2014:1). xii For example, the BC government reversed its decision to remove mandatory environmental assessments on liquefied natural gas (LNG) projects, because they “failed to discuss the amendment with First Nations prior to approval.” (Canadian Press, 2014) xiii British Columbia Assembly of First Nations 2013:5 xiv The desire to participate in the BCTC process is a significant variable; however, the focus of this paper is on those who are unable to effectively participate, namely Indigenous peoples who were declared “extinct for purposes of the Indian Act” (Undated letter from Ronald A. Irwin, Minister of Indian Affairs and Northern Development, to Sinixt supporter Jacqueline Heywood, circa 1990), or other unrecognized Indigenes in BC. Sinixt in BC regard this process as deeply flawed and do not wish to be a part of it; however, the process greatly affects them, regardless of their ability or willingness to participate. Land has been granted to other nations within Sinixt territory, who are claiming Sinixt territory as their own in land claims and other public discourses (Okanagan Nation Alliance 2013). This all complicates Sinixt assertions of their continued existence and their ability to carry out responsibilities to their tum-ula?xw (territory) under whuplak’n. xv In addition to numerous other flaws, beyond the scope of this paper

16

xvi It is important to note that while some Sinixt may refer to themselves as Lakes, a product of colonialism that has become an acceptable form of self-identification, Arrow Lakes is not. Arrow Lakes Band in this document refers specifically to a very small portion of Sinixt people regarded as Indians of Canada, Registered under the Indian Act, and belonging to the state-designated, and now deemed extinct, Arrow Lakes Band. Technically it is the Arrow Lakes Band who are extinct for purposes of the Indian Act, not Sinixt people, affirmed in the same DIAND/Ronald A. Irwin letter clarifying their extinction under the Indian Act. However, “people” do not have rights under the Indian Act, only those belonging to state-recognized, or state-designated, Bands. In terms of rights and more significantly title, it is recognition under the Indian Act that matters to the state. Sinixt, living in the American part of their tum-ula?xw in Washington state are recognized by the US as one of the Colville Confederated Tribes. xvii British Columbia 1916:10-11 in Pryce 1999:69, fn 32. xviii Canada and the United States are currently in preparations to renegotiate the CRT. Although there is a separate consultation process for First Nations, Sinixt, as an unrecognized people, have no ability to participate in this process as First Nations of BC. For a more detailed discussion of Sinixt and the CRT, see Barkley and Sadik 2014. xix “Traditional” is a loaded concept. It is used here to refer to adherence to a more traditional “way” of life, as in “Keeping the Lakes’ Way” of the ancestors (Pryce 1999), rather than capitalism and materialism defining one’s lifeway. xx Whuplak’n is not only the law of the land, but also from the land. This is a different sense of ‘law of the land’ than in settler discourses, where the laws of the land are imposed by people and changed over time. Whuplak’n is both from the land and of the land, thus it exists, in a sense, independent of individuals; it belongs to the land itself, the tum-ula?xw, and all those who dwell upon it. The validation of cultural laws come from within the practices, creating a cycle of commitment and validation that perpetuates the laws and practices. A full discussion of whuplak’n is well beyond the scope of this paper, where only a “small sliver” of how it provides cultural grounding of existence as Sinixt people is discussed. (The discussion of whuplak’n and smum’iem is based on a conversation between Marilyn James, Dennis Zarelli, and Lori Barkley, April 13, 2014, and interviews conducted with Marilyn James and Taress Alexis by Htoo Paw in March 2013.) xxi A common phrase is to respect the land and all who dwell upon it: the creepy and the crawly, the winged and the finned, the two-legged and the four-legged. xxii The focus of this paper is Sinixt in BC; however Sinixt are recognized in Washington State as one of the Colville Confederated Tribes (CCT) and Sinixt who live in BC travel between BC and the reservation, and vice versa. The CCT is well aware of Sinixt extinction in Canada and are mounting their own strategies, which may or may not support those of Sinixt in BC. In one court case, the CCT intervened against Sinixt in BC (Campbell and Others v. Minister of Forests and Range of BC and Sunshine Logging (2011)). Thus the actions of the CCT Tribal Council can affect the work of Sinixt in BC in detrimental ways. xxiii A recent, tragic death of an important Sinixt ally and member of smum’iem initiatives indicates that it may, in fact, be too much for some (Charet 2014). xxiv Marilyn James, interview with Htoo Paw, March 2013. xxv Marilyn James interview with Htoo Paw, March 2013 xxvi Marilyn James interview with Htoo Paw, March 2013:10 xxvii Marilyn James interview with Htoo Paw, March 2013:4 xxviii Wynecoop and Wynecoop 1985:36 xxix Taress Alexis interview with Htoo Paw March 2013:4 xxx Marilyn James interview with Htoo Paw, March 2013:4 xxxi Marilyn James interview with Htoo Paw, March 2013:5 xxxii Marilyn James and Dennis Zarelli, personal communication to Lori Barkley, April 13, 2014 xxxiii Marilyn James interview with Htoo Paw, March 2013:6 xxxiv Marilyn James interview with Htoo Paw, March 2013:6 xxxv Taress Alexis interview with Htoo Paw, March 2013:6 xxxvi Taress Alexis interview with Htoo Paw, March 2013:6 xxxvii Marilyn James interview with Htoo Paw, March 2013:6-7 xxxviii Taress Alexis interview with Htoo Paw, March 2013:8

17

xxxix Another explanation of absence, also deeply flawed, is that the area encompassing the contemporary city of Nelson was so sacred that no Indigenous peoples settled here. Again, physical evidence of a long Indigenous presence on the land indicates otherwise. xl Nathan Goodale and Alissa Nauman’s extensive and ongoing archaeological work has identified the area as containing the largest, oldest, prehistoric village sites in the Upper Columbia Plateau (personal communication to Lori Barkley, June 2013). xli The exclusive jurisdictions required by the state complicates the process when shared territories are claimed, as required in the process. xlii Catherine Fisher, personal communication to Lori Barkley, April 23, 2104. xliii As early as 1952, and prior to the government deeming the Arrow Lakes Band “extinct”, the Okanagan Nation Alliance (ONA) requested that the Arrow Lakes Reserve should be amalgamated with the Okanagan Band under the provisions of the Indian Act rather than revert to the Province as per the 1916 McKenna-McBride commission. The last registered member of the Arrow Lakes Band, Annie Joseph, was living on an Okanagan reserve at the time, where she later died. The application was denied on the basis that it was clearly a strategy to prevent lands reserved for Sinixt from reverting to the Province, only the Okanagan Band would benefit from Amalgamation, and the distance from the Okanagan Reserve would make administration impractical (Bouchard and Kennedy 2005:100-101). xliv Marilyn James, Sinixt Radio, Kootenay Cooperative Radio, CJLY, November 2010. xlv BC Timber Sales is to inform contractors if there is likely to be “contention” when granting logging concessions. It is important to note that contention results from lack of recognition and consultation, a result of deeply flawed government policy, rather than an inability of Indigenous peoples to accept change. xlvi Blackburn 2005:588 xlvii Conversation with author, September 3, 1999 in Blackburn 2005:588 xlviii Conversation with author, September 3, 1999 in Blackburn 2005:588 xlix Marilyn James interview with Htoo Paw, March 2013:9 l Marilyn James interview with Htoo Paw, March 2013:9-10 li Marilyn James personal communication to Lori Barkley, April 13, 2014. lii Catherine Fisher, personal communication to Lori Barkley, April 23, 2014.