The Mni Wiconi rural water project brought a water line to the Pine Ridge Reservation to improve grazing and livestock opportunities. Photo: USDA NRCS South Dakota

Jeffrey Whalen: Taking a closer look at the Oglala Sioux Tribe's grazing code

Leasing tribal and individual lands conflicts with CFR Regulations

By Jeffrey Whalen
Native Sun News Today Columnist

In writing about the Oglala Sioux Tribe Grazing Code, I uncovered several items that seemed to be unconstitutional and highlighted those areas. Since then and for the most part, some folks in tribal administrative offices verbally expressed they’re agreement with what was written. Some of those same folks have similar opinions of the Grazing Code but lack authority to change the obstructive language in that tribal law.

I’m going to continue to uncover discrepancies in this tribal law to ensure that the tribal leadership is made aware of the same. Most of the “tribal law makers” are completely unaware of how to create laws. Most, if not all of them are not law trained at all yet, because they are council-persons, they are still a valuable part of the tribal lawmaking system, even when they get it wrong.

In this tribe, the law makers rely on Jurist Doctorate’s (JD) to advise them on lawmaking language. It is routine to have a council person demand that a JD write a law that goes against a constitution and/or the Code of Federal Regulations (CFR). The problem occurs when the JD knows without a doubt that a proposed law contains language that is unlawful, yet the attorney will proceed anyway just to appease the council.

This goes directly against the blindfolded lady who represents the balance of law and order. In the end, the people who are ultimately harmed are the Oyate in our case, and all tribal members across the nation in the case of other tribes in their respective law-making processes. Any of the other 575 plus tribes in the nation will experience the same exact thing that we experience on Pine Ridge simply because of the way our governmental systems were set up by the various tribal constitutions.

So today, we are going to look at such a tribal law and where it appears to conflict with the CFR including the relevant rules concerning leasing options contained in the CFR.


Support Native Media!

Find news, opinion and more on Native Sun News Today

In reviewing the CFR 25 (Indians) in Part 166, Grazing Permits, I have found several issues that are questionable concerning the tribal practices of leasing tribally owned land vs individually owned land held in trust.

Currently, OST tribal ordinance in 17-15 allows an Allocation Committee to receive and process leasing requests from ranchers concerning lands that are owned by the tribe and lands that are individually owned by tribal members. This ordinance seems to be in conflict with the CFR in Part 166.203 where it clearly divides tribally owned land from individually owned land and in reading this section, it is also clear that the tribal Allocation Committee only has authority to address leasing options concerning tribally-owned land as opposed to individually owned land held in trust.

In Sec. 166.216 it appears that the responsibility to permit land leases for the Indian landholder belongs to the Bureau of Indian Affairs through requests from the landholders. It reads; “Who is responsible for permitting Indian land? The Indian landowner is primarily responsible for granting permits on their Indian land, with the assistance and approval of the BIA, except where otherwise provided by law. You may contact the local BIA or tribal office for assistance in obtaining a permit for grazing purposed on Indian land.”

A person can go through this entire part and start to understand that there are separate authorities to address tribal land, which is ultimately land owned by the tribe itself as a first category and individually owned land as a separate second category. Yet, the tribal grazing ordinance as it is currently written, gives authority to the Allocation Committee to grant leasing options for tribal land and individually owned land. That action appears to conflict strongly with the CFR in Part 166. In fact, section 166.217 and 166.218 below identifies the separation of authority very clearly.

166.217. In what manner may a permit on Indian land be granted? (a) a tribe may grant a permit on tribal land through tribal allocation, negotiation, or advertisement in accordance with Sec. 166.203 of this part. We must approve all permits of tribal land in order for the permit to be valid, except where otherwise provided by law. (b) Individual Indian landowners may grant a permit on their Indian land through negotiation or advertisement in accordance with Sec. 166.203 of this part. We must approve all permits of Individual Indian land in order for the permit to be valid.

166.218. How do I acquire a permit through tribal allocation? (a) A tribe may allocate grazing privileges on range units containing trust or restricted land which is entirely tribally-owned or which contains only tribal and government land under the control of the tribe.

The language above clearly spells out the authority of the tribe to negotiate through the OST Allocation Committee process only on lands that are owned by the tribe as opposed to lands that are individually owned. Further, in section 166.219 below, the individual land owner can grant permits to people of their own choosing.

166.219 How do I acquire a permit through negotiation? (a) Permits may be negotiated and granted by the Indian landowners with the permittee of their choice. The BIA may negotiate and grant permits on behalf of Indian landowners pursuant to Sec. 166.205 of this part.

To date and according to the federal regulations above, the OST Allocation Committee does not appear to have authority to negotiate any leases that are individually owned because according to the CFR in 25, at 166.219, that authority belongs to the individual land owner with the assistance of the BIA.

If the tribe negotiated a PL 93-638 contract with the BIA to administer the leasing of individually owned trust lands, the use of the word “may” should come into play where the individual may lease their own lands. But the process has become so intermingled that it is difficult to determine exactly what authority the tribe is using as they have not separated out the two leasing options which are the leasing of tribally owned lands and the leasing of individually owned lands respectively.

The BIA and their Pine Ridge Land Operations branch should step in and correct all of the issues connected to the tribes rampant leasing of individually owned lands under their assumption that they can do so in the same manner as leasing rules under the tribally owned lands. All actions concerning trespass should come to an immediate halt because it is clear that the administrative process in granting leases is majorly flawed. The end result of a defunct administrative process on behalf of the OST through their Grazing Code, harms ranchers who are in dire need of lands to house their cattle. As a reminder, according to OST’s Grazing Code, the process of leasing tribal lands should have been accomplished by November 1, 2018. There is no mention in the Grazing Code of a process concerning a completion date to get all of the individually owned lands leased out.

Jeffrey Whalen. Photo courtesy Native Sun News Today

We have a tribal law that was very quickly written in order to meet a specified deadline. In they’re urgency to get this done, they didn’t consider cross referencing the proposed law against the federal regulations concerning grazing permits. It would seem that the tribal attorney’s who wrote this law would have at the very least, researched the federal rules to insure they were in compliance with the fed.

There is a procedure in the CFR where the BIA must preform an annual market study to determine the average rental rate of grazing lands in the market study area. Because the rental rates in this area are currently well below average, this means that the BIA has not done their jobs in that arena either. The individual land owner of trust lands has the right to select their own renter and to specify their own rental rates with the help of the BIA. This has not been occurring either.

According to the CFR, the OST Allocation Committee doesn’t appear to have much authority at all over individually owned lands. Thus, the OST Grazing Code is clearly unconstitutional and clearly conflicts with the CFR in Part 166, Grazing Permits.

Contact Jeffrey Whalen at

Copyright permission Native Sun News Today

Join the Conversation