Treaty rights

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In Australia, Canada, New Zealand and the United States the term treaty rights specifically refers to rights for indigenous peoples enumerated in treaties with settler societies that arose from European colonization.

Exactly who is indigenous is understood differently across the New World, and not all indigenous groups have signed treaties. Therefore the concept of "treaty rights" operates very different in context. As of 2021^[update] no such treaties exist in Australia, and the discussion of treaty rights there is speculative, based on future agreements that may be signed. For the other English-speaking settler countries, well-established legal regimes decide who is eligible for what legal protections based on treaties. Treaty rights of one kind or another apply to most Alaska Natives and Native Americans in the United States and many but not all First Nations in Canada.^[1] The concept of treaty rights also applies to a smaller number of Inuit and Metis in Canada, who have entered into treaties. By extension, a "treaty Indian" is a Canadian legal term for a person who has inherited such rights.

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 place and time) capable of self-determination and cultural survival.^[2] In the British constitutional tradition operating in Australia, Canada, New Zealand and the United States, once the Crown or the government recognizes that there is another body corporate with legal personality capable of making binding agreements on behalf of its members, negotiations can begin for mutual exchange and aid, resulting in a treaty.^[3]

By signing treaties, indigenous peoples have traded claims over vast amounts of land and resources in exchange for (for example):

• reserved areas of land (Indian reservations [US terminology] and Indian reserves [Canadian terminology])
• protection (from attacks from other indigenous group or land-rushing settlers)
• health care (the "medicine chest clause" of Treaty Number Six between Canada and the Cree and Stoneys being a famous example)
• education
• religious freedom
• protection of hunting and fishing rights
• sometimes some monies as well ("treaty monies" distributed at "treaty day" ceremonies)

Critics of the treaty relationship commonly claim that a state may grant special rights to indigenous people because of their racial status. Defenders of the treaty system argue that governments do not give treaty rights to anyone but that Native people reserved such rights when they signed treaties in an inter-governmental relationship.^{[4][citation needed]}