¹ Danielle Her Many Horses is a Juris Doctorate candidate at the University of New Mexico School of Law.

² The other tribes that make up the Lakota Nation are the: Sicangu, Itazipco, Si Hasapa, Oohenumpa, Hunkpapa, and Minneconjou. The Lakota Nation is also a subset of the Sioux Nation, which is a linguistically connected group that also includes the Dakota and the Nakota. James R. Walker, Divisions of the Lakotas, in Lakota Society 19 (Raymond J. DeMallie ed. 1982). This collection of traditional Lakota knowledge and teachings was the second volume of recordings made by James R. Walker, agency physician on the Pine Ridge Reservation, between 1896 and 1914. See Preface, in LAKOTA SOCIETY at xiii; see also infra note 27.

³ Oglala Sioux Tribe, Oglala Sioux Tribe Community Environmental Profile, at http://mnisose.org/profiles/oglala.htm (last visited Apr. 23, 2001) [hereinafter Mni Sose] (on file with the Tribal Law Journal). Mni Sose is an inter-tribal organization dedicated to the preservation of Indian water rights on the Missouri River. Id. The Oglala Sioux Tribe is a member of Mni Sose. Id.

⁴ Telephone Interview with Michael Her Many Horses, Tribal Councilman, Wounded Knee District (Oct. 8, 2000).

⁵ Mni Sose, supra note 2.

⁶ Id.

⁷ 25 U.S.C. §§ 461-479 (1994).

⁸ OGLALA LAKOTA NATION Const. art. IV.

⁹ See OGLALA SIOUX TRIBAL LAW & ORDER CODE (1996).

¹⁰ Telephone Interview with Michael Her Many Horses, supra note 3.

¹¹ Id.

¹² James R. Walker, The Sundance and Other Ceremonies of the Oglala Division of the Teton Dakota 62 (1979) (hereinafter SUNDANCE). See also William K. Powers, Oglala Religion 34 (1977).

The Lakota are allied against all others of mankind, though they may war among themselves. They are oyate ikce (native people), and are ankantu (superior), while all others of mankind are oyate unma (other-people), who are ihukuya (considered-inferior). This is the relation of the Lakota to all others of mankind, and if any refuse to acknowledge this relation they are tokayapi (considered–enemies), and should be treated as such.

Introduction, in Lakota society, supra note 1, at 3.

¹⁴ WalkeR, SUNDANCE, supra note 11, at 62.

¹⁵ Telephone Interview with Norma Tibbitts, Head of the Tibbitts Tiospaye (Apr. 17, 2001).

¹⁶ See Powers, supra note 11, at 34.

¹⁷ Telephone Interview with Michael Her Many Horses, supra note 3.

¹⁸ Powers, supra note 11, at 34-35.

¹⁹ Telephone Interview with Norma Tibbitts, supra note 14.

²⁰ Id.

²¹ Telephone Interview with Michael Her Many Horses, supra note 3.

²² Id.

²³ Id.

²⁴ Id.

²⁵ Stephen Return Riggs, U.S. Dep’t of Interior, Dakota –English Dictionary 211 (1890).

²⁶ See Thunder Tail, Chieftanship, in 1 Lakota Tales and Text 279 (Eugene Buechel, S.J. ed., Paul I. Manhart, S.J., trans.1998) (providing a written account of Thunder Tail as recorded by Ivan Stars in 1915, at Oglala, South Dakota).

²⁷ See Charles Garnett, Bands, Chiefs, and Laws, in Lakota Society, supra note 1, at 24. See also Bad Bear, How New Bands and Chiefs Were Made, in Lakota Society, supra note 1, at 25-28.

²⁸ See Thomas Tyon & John Blunt Horn, Associations Among the Oglala Sioux, in Lakota Belief and Ritual 260 (Raymond J. DeMallie & Elaine A. Jahner eds., 1980). This collection of traditional Lakota knowledge and teachings was the initial volume of recordings made by James R. Walker, agency physician on the Pine Ridge Reservation, between 1896 and 1914. See id. at xiii.

²⁹ See Iron Tail, Akicita, in Lakota Society, supra note 1, at 34.

³⁰ Tyon & Blunt Horn, supra note 27, at 260.

³¹ See id.

³² Id.

³³ Id. at 260-61.

³⁴ Id.

³⁵ See Clark Wissler, Societies and Ceremonial Associations in the Oglala Division of the Teton-Dakota, in 11 anthropological papers of the American Museum of Natural History 8-11 (1916).

³⁶ Id.

³⁷ See id.

³⁸ Women have been, and continue to be elected to the Tribal Council. Theresa Two Bulls was elected Vice President of the Oglala Lakota Nation in the last election, held November 7, 2000. This is the highest political position yet held by a woman in the Oglala Lakota Nation. Today it is the woman of the tiospaye who controls the political votes of her extended family. Hence political control is becoming feminized. See Telephone Interview with Norma Tibbitts, supra note 14.

³⁹ See James R. Walker, Oglala Social Customs, in Lakota Society, supra note 1 at 50-57.

⁴⁰ See Chief Luther Standing Bear, Land of the Spotted Eagle, 83-87 (1933).

⁴¹ Id. at 84.

⁴² See James R. Walker, Oglala Social Customs, in LAKOTA SOCIETY, supra note 1, at 56. The horses of the family were considered community property. Id.

⁴³ See Brave Dog, A Young Man Marries a Wife, in 2 Lakota Tales and Text 581-2 (Eugene Buechel, S.J. ed., Paul I. Manhart, S.J., trans. 1998). This is a written account of Brave Dog as recorded by Ivan Stars in 1915, at Oglala, South Dakota. Id.

⁴⁴ See James R. Walker, Oglala Social Customs, in LOKOTA SOCIETY, supra note 1, at 56.

⁴⁵ Thomas Biolsi, Organizing the Oglala 78 (1992).

⁴⁶ Id.

⁴⁷ Id.

⁴⁸ See id. at 93-94 (explaining that because the Councilmen were “not sufficiently educated in legal terms,” they presented their views to the constitutional committee, but the federal government wrote the actual constitution). See id.

⁴⁹ OGLALA LAKOTA NATION Const. art. IV, §1.

⁵⁰ Id. at art. V.

⁵¹ Id. at art. VI.

⁵² Id. at art. IV, §1.

⁵³ See id.

⁵⁴ Id. at art. IV, § 1(k).

⁵⁵ The forty eight chapters of the Law and Order Code consist of the following: Court and Procedures; Civil Actions, Domestic Relations; Dependent, Neglected or Delinquent Children; Juvenile Code; Elder Abuse Code; Heirship and Probate; Criminal Procedure; Penal Code; Removal of Nonmembers; Tribal Extradition Code; Indian Custom Adoption; Health and Sanitation; Taxation Provisions Code; Rules of Court; Grand Jury Code; Motor Vehicle Code; Enrollment Code; Personnel Policies and Procedures; Trial Employment Rights; Administrative Operating Procedure; Records Management; Freedom of Information; Zoning Code; Historic Site Preservation Code; Nuisance Abatement Code; Education Code; Election Code; Food Services Code; Gaming Code; Animal Control Code; Livestock Code; Water Code; Sewer and Sewage Code; Garbage and Refuse Disposal Code; Grazing Code; Fish and Wildlife Code; Motor Vehicle Licensing Code; Mining Code; Oil and Gas Code; Oil and Gas Tax Code; Timber Cutting Permit Code; Coroner; Reservation Wide School Board; Fee Schedule for OST Business License Code; Tribal Bar Association Code; Leasehold Mortgages Code; and Fireworks Code. See OGLALA SIOUX TRIBAL LAW & ORDER CODE (1996) (Table of Contents).

⁵⁶ Telephone interview with Norma Tibbitts, supra note 14.

⁵⁷ OGLALA SIOUX TRIBAL LAW & ORDER CODE ch. 4 (1996).

⁵⁸ Id. at ch. 5.

⁵⁹ Id. at ch. 4, § 54.18.

⁶⁰ Id. at ch. 4, § 54.18A.

⁶¹ Id. at ch. 4, § 54.22.

⁶² Id. at ch. 4, § 54.27. The standard behind the court’s determinations is generally the best interests of the child. Id.

⁶³ OGLALA SIOUX TRIBAL LAW & ORDER CODE ch. 4, § 54.27 (1996).

⁶⁴ Id. at ch. 4, § 54.29; see also Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-1963 (1994).

⁶⁵ See OGLALA SIOUX TRIBAL LAW & ORDER CODE ch. 4 (1996).

⁶⁶ See id. at ch. 5.

⁶⁷ Id. at ch. 5, subch. IV.

⁶⁸ Id. at ch. 5, subch. X; see also Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-1963 (1994).

⁶⁹ See OGLALA SIOUX TRIBAL LAW & ORDER CODE ch. 5, subch. VIII, § 8.03 (1996).

⁷⁰ Id. at ch. 5, subch. VII, § 8.05.

⁷¹ Id. at ch. 5, subch. III, § 3.04.

⁷² Indian Self-Determination and Education Assistance Act, Pub. L. No. 93-638, 88 Stat. 2203, (codified as 25 U.S.C. §§ 450a-450n, and as amended in scattered sections of 25 U.S.C, 42 U.S.C, and 50 U.S.C.).

⁷³ See generally OGLALA LAKOTA NATION Bylaws art. I (1935) (discussing the duties of the officer of the Tribal Council). Cƒ. OGLALA LAKOTA NATION Const. art. IV (discussing the powers of the Tribal Council).

⁷⁴ OGLALA LAKOTA NATION Const. art. III, § 6.

⁷⁵ Id.

⁷⁶ Id.

⁷⁷ Id.

⁷⁸ OGLALA LAKOTA NATION Bylaws art. I, § 1 (1935).

⁷⁹ OGLALA LAKOTA NATION Const. art. III, § 6.

⁸⁰ OGLALA LAKOTA NATION Bylaws art. I, §2.

⁸¹ Indian Self-Determination and Educational Assistance Act, Pub. L. No. 93-638, 88 Stat. 2203.

⁸² Id.

⁸³ Telephone Interview with Michael Her Many Horses, supra note 3.

⁸⁴ Id.

⁸⁵ See OGLALA SIOUX TRIBAL LAW & ORDER CODE ch. 1 (1996).

⁸⁶ Id.

⁸⁷ Id. at ch. 1, § 1.2. However, this provision is now modified by a recent U.S. Supreme Court decision. See Nevada v. Hicks, 121 S. Ct. 2304 (2001).

⁸⁸ OGLALA SIOUX TRIBAL LAW AND ORDER CODE ch. 1, § 6.4 (1996).

⁸⁹ Id. at ch. 1, § 2.2.

⁹⁰ Id. at ch. 1, § 2.

⁹¹ Id. at ch. 1, § 2.4 (a)(7).

⁹² Id. at ch. 1, § 6.2.

⁹³ Cƒ. id. (at least three Justices must sit per case in the event of a split decision).

⁹⁴ OGLALA SIOUX TRIBAL LAW & ORDER CODE ch. 1, § 6.2 (1996).

⁹⁵ Telephone Interview with Steve Emery, Chief Justice, Oglala Lakota Nation Supreme Court (Nov. 4, 2000).

⁹⁶ Id.

⁹⁷ Id.

⁹⁸ Id.

⁹⁹ Id.

¹⁰⁰ OGLALA LAKOTA NATION Const. art. VI.

¹⁰¹ Id.

¹⁰² In 1997, Congress authorized a second round of Empowerment Zones and Enterprise Communities. The authorization allowed tribes to compete for the Empowerment Zone designation. Tribes were not allowed to compete for the designation in the first round. See Taxpayer Relief Act of 1997, Pub. L. No. 105-34, 111 Stat. 788 (codified as amended in scattered sections of 26 U.S.C.)

¹⁰³ See Backgrounder: Rural EZ/EC Program, available at http://www.ezec.gov/About/backgrounder.html (last visited Dec. 12, 2001) (on file with the author).

¹⁰⁴ See id.

¹⁰⁵ Telephone Interview with Michael Her Many Horses, supra note 3.

¹⁰⁶ Id.

¹⁰⁷ OGLALA LAKOTA NATION Const. art VI.

¹⁰⁸ Telephone Interview with Michael Her Many Horses, supra note 3.

¹⁰⁹ Id.

¹¹⁰ Id.

¹¹¹ Id.

¹¹² Plaintiff’s Statement of Fact, Request for Special Findings of Fact, and Brief at 266-270, Sioux Tribe v. United States, 97 Ct. Cl. 613 (1942) (No. C-531-(7)).

¹¹³ In 1979, the Federal Court of Claims held that an 1877 statute constituted a taking of (a) the Sioux land in the Black Hills and (b) the rights-of-way acquired there under. In so ruling, the court determined that the United States owed the Sioux 85 million dollars. See United States v. Sioux Nation, 601 F.2d 1157 (1979).

¹¹⁴ United States v. Sioux Nation, 444 U.S. 989 (1979).

¹¹⁵ United States v. Sioux Nation, 448 U.S. 371 (1980).

¹¹⁶ Treaty with the Sioux and Arapaho (Treaty of Fort Laramie), April 29, 1868, 15 Stat. 635 (1868).

¹¹⁷ Sioux Nation, 448 U.S. at 424.