Federal Recognition and Treaty Rights
I. Distinction Between Recognition and Treaty Rights
Federal recognition and treaty rights are distinct legal concepts under United States law.
– **Federal recognition** is an administrative status managed by the Executive Branch
– **Treaty rights** are legal rights established by treaties and protected under the Constitution
Treaty rights exist independently of federal recognition status.
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II. Governing Law
Under the United States Constitution, ratified treaties are the **supreme law of the land**.
As a matter of federal law:
– Treaty rights cannot be diminished by administrative action
– Treaty rights do not depend on recognition by the Bureau of Indian Affairs
– Treaty rights may only be extinguished by a clear and explicit act of Congress
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III. Source of Red Bear Pembina Rights
The Red Bear Pembina treaty rights derive from binding treaties between the United States and the Pembina Band of Chippewa Indians, including:
– 1789 Treaty of Fort Harmar
– 1863 Treaty of Old Crossing (ratified 1864)
– 1864 Supplemental Articles
These treaties established enforceable legal obligations and recognized rights held by the original signatories and their descendants.
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IV. Effect of Federal Recognition Status
Federal recognition status:
– Does not create treaty rights
– Does not extinguish treaty rights
– Does not control inheritance of treaty rights
Rights established by treaty remain in force regardless of later administrative classification or non-recognition.
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V. Judicial Authority
Federal courts have confirmed that:
– Descendant groups of treaty signatories may retain valid legal claims
– Legal rights may persist through identifiable lineage
The United States Court of Claims (1964–1965) recognized the Pembina Band as consisting of distinct groups and confirmed the validity of descendant-based claims.
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VI. Red Bear Pembina Status
The Red Bear Pembina lineage:
– Derives its rights from ratified federal treaties
– Did not cede those rights under later agreements such as 1892
– Has not been subject to any Act of Congress terminating those rights
Accordingly, those treaty rights remain legally intact.
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VII. Conclusion
Federal recognition is an administrative classification.
Treaty rights are constitutional rights.
The Red Bear Pembina treaty rights exist by virtue of binding treaties and remain in force unless and until Congress expressly terminates them.
No such termination has occurred.