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Treaty rights are certain rights that were reserved by indigenous peoples when they signed treaties with settler societies in the wake of European colonization. This applies to the rights of Alaska Natives and Native Americans in the United States and First Nations in Canada, as well as to a smaller number of Inuit and Metis in Canada who have entered into treaties.
Treaty rights are not the only rights claimed by indigenous peoples. Indigenous people claim inherent rights to self-determination, which implies that they be recognized as rights-bearing groups (called "tribes", "bands", or "nations" depending on the place and time) capable of self-determination and cultural survival. Once the state recognizes that there is another body corporate with legal personality capable of making binding agreements on behalf of its members, then negotiations can begin for mutual exchange and aid: a treaty. The earliest of these agreements, between colonial powers such the French, British, and the Dutch and various indigenous peoples of the Atlantic coastal regions had the character of military alliances, as between peers. Later treaties, however, were generally about the cession of land from weakened Aboriginal peoples to expanding settler states. By the Royal Proclamation of 1763 the British Crown (i.e. the state) declared that individual British subjects could not buy land from native nations; only the Crown could obtain land from native nations through treaty, which it could then redistribute to individuals. This principle, which was adopted by both Canada and the United States upon gaining independence from Britain, became the legal impetus for all subsequent treaties in North America.
By signing treaties, indigenous peoples traded vast amounts of their land and resources in exchange for reserved areas of land (Indian reservations [US terminology] and Indian reserves [Canadian terminology]) and things like protection (from attacks on their lands), health care, education, and religious freedom, protection of hunting and fishing rights, and sometimes some monies as well. Because Article Six of the United States Constitution declares treaties to be the supreme law of the land, treaties are just as valid today as they were the day they were signed, and treaty rights are still legally binding as well. Likewise treaty rights were enshrined in Canada under section 35 by the package of constitutional reforms of 1982.
A common critique of the treaty relationship is that treaty rights are "special" rights given to indigenous people by the state because of their racial status. Defenders of the treaty system argue however, that the government does not "give" treaty rights to anyone – native people reserved them when they signed treaties in a government-to-government relationship.
Treaty rights are frequently subject to public debate, particularly hunting and fishing rights. Many Native nations have reserved rights to hunt and fish in their accustomed places, which are often lands that was given up at the treaty signing, or "ceded land". This leads to conflict with sports and commercial hunters and fishers, who are competing for the same limited resource in the same place.
Another common source of conflict is management decisions about the land or rivers on which Native people have rights. Things like dams and logging have huge effects on fish and wildlife populations. In Canadian law, government how have a court-mandated "duty to consult" indigenous peoples regarding the management process of these lands and rivers. In the United States, no such mandate exists.
Violations of treaty rights
Spearfishing in Northern Wisconsin
Beginning in the 1980s and extending into the early 1990s, Northern Wisconsin was rife in protests against Ojibwe spearfishing. The Voigt decision in 1983 had reaffirmed that the treaties made in 1837 and 1842 still stood. These treaties gave the Ojibwe the rights to hunt, fish, and gather off-reservation, which was not subject to state regulation. This heralded a backlash of non-Natives, who believed the Ojibwe had been granted special rights. Spearheaded by groups like Stop Treaty Abuse (STA), often violent and racially discriminatory protests against spearfishing covered boat landings across northern Wisconsin. This led to the case Lac du Flambeau Band of Lake Superior Chippewa Indians v. Stop Treaty Abuse-Wisconsin, which culminated with Judge Barbara Crabb upholding the Voigt decision and many members, donors, and politicians distancing themselves from the STA, which many believed was racist.
Whaling in Washington
The right to hunt North Pacific Gray Whales has been a contentious issue for the Makah people in Washington state. The Makah people ceded much of their traditional lands in the Treaty of Neah Bay in 1855, but retained the right to whale. The tribe voluntarily gave up this practice in 1915 because of decimated Grey Whale populations, but once the species was taken off the Federal Endangered Species List in 1993, the tribe sought to continue whaling. In 1999, they killed one whale, but faced immediate backlash from environmental groups and animal rights groups. The International Whaling Commission (IWC) believed that the Makah tribe’s quota of harvesting up to five whales a year would not hurt the recovering population. Because of a number of new studies garnishing evidence for and against this practice, the issue has been tied up in court since 1999, with the tribe being unable to exercise the right given to them in the Treaty of Neah Bay.
Annexation of Hawaii
Throughout the nineteenth century, the United States made a number of treaties with the then Kingdom of Hawaii, the final being in 1887. These treaties recognized the Kingdom of Hawaii as being sovereign and independent. In 1893, John L. Stevens, US minister assigned to the Kingdom of Hawaii, led a group of non-indigenous people to overthrow Queen Lili‘uokalani, which was backed by United States naval forces. They established a Provisional government, which then declared itself the Republic of Hawaii. In 1899, the US annexed Hawaii. Many Hawaiian sovereignty activists feel that because of the aforementioned treaties, Hawaii should today be its own Nation instead of part of the United States.
Dakota Access Pipeline
The Indigenous people of Standing Rock reservation in North and South Dakota believe that the Dakota Access Pipeline, which runs near their main source of water, could contaminate that source of water should it leak. The also cite the Fort Laramie Treaties of 1851 and 1868, which promised the land that DAPL runs through to the Sioux Tribe. Lands were seized in 1877 (8) and 1887 with the Dawes Allotment Act that broke up reservations (9). Some call for these treaties to be reinstated and enforced today, which would put the course of the DAPT straight through Sioux lands.
- AJI Report, Chapter 5
- Branch, Government of Canada; Indigenous and Northern Affairs Canada; Communications. "Treaty Rights". www.aadnc-aandc.gc.ca. Retrieved 2017-04-27.
- "What are treaty rights?". arcbc.tripod.com. Retrieved 2017-04-27.
- Pierson, Brian (2009). "The Spearfishing Civil Rights Case: Lac Du Flambeau Band v. Stop Treaty Abuse-Wisconsin" (PDF). Great Lakes Indian Fish & Wildlife Commission. Retrieved 2017-04-26.
- "Spearfishing Treaty Controversy - Indian Country Wisconsin". www.mpm.edu. Retrieved 2017-04-27.
- "NOAA study could set stage for Makah whaling to resume". The Seattle Times. 2015-03-06. Retrieved 2017-04-26.
- Brand, Emily (2009). "The Struggle to Exercise a Treaty Right: An Analysis of the Makah Tribe's Path to Whale" (PDF). Retrieved 2017-04-26.
- "Makah Tribe pursues treaty right to whale". Northwest Treaty Tribes. 2015-05-04. Retrieved 2017-04-26.
- Van Dyke, Jon; MacKensie, Melody (July 2006). "An Introduction to the Rights of the Native Hawaiian People" (PDF). University of Hawaii at Mānoa. Retrieved 2017-04-26.
- Schlecht, Jenny (November 10, 2016). "1851 Treaty Resonates in DAPL Discussion". Bismarck Tribune. Retrieved 2017-04-26.
- "Section 6: After the Battle of the Little Big Horn | North Dakota Studies". ndstudies.gov. Retrieved 2017-04-27.
- "Our Documents - Dawes Act (1887)". www.ourdocuments.gov. Retrieved 2017-04-26.
- Aboriginal Justice Inquiry of Manitoba (1991). Report of the Aboriginal Justice Inquiry of Manitoba (Report). Aboriginal Justice Implementation Commission. Retrieved 4 February 2014.