Are the Black Hills Cultural Property?

That was the provocative question posed by Melissa Tatum at the AALS Annual Meeting here in New Orleans last weekend. First, a little background.  The Black Hills are a beautiful but small mountain range extending from South Dakota into Wyoming.  Today the region is home to Mount Rushmore, numerous National monuments, the in-progress Crazy Horse Memorial, and the Sturgis Motorcycle Rally.  But of course before 19th century Americans moved to the area, it was the home of indigenous groups; first the Cheyenne, and later the Lakota.

Apologies for any mistakes in this history, but as I understand it in 1868, the United States signed the Treaty of Fort Laramie, which essentially gave the Lakota nation ownership of the Black Hills.  This treaty was signed after the Lakota defeated U.S. forces.  Soon after though this treaty was violated until it was eventually revoked.  Tatum noted that the city of Deadwood was founded at this time, and references the recent HBO show.  "Deadwood" was set in the 1870's, and was based on the real life people and events of the town's early history.  The town began as a mining camp, in an area outside of the law.  The very founding of the camp was illegal, as the land was owned by the Lakota people.  The show examines this lawlessness in a number of ways.  In the real Deadwood, it was the discovery of gold which brought miners to the area.  This led to armed conflict (including Custer's defeat) which culminated in 1877 when the Federal governemnt seized control of the Black Hills for good.  

In 1980, the Sioux nation won a hard fought court victory.  United States v. Sioux Nation of Indians, 448 U.S. 371 (1980).  The Supreme Court upheld an award for the value of the land in 1877, along with 103 years of interest.  However the Sioux have refused to accept this sum, and instead want the return of the land. 

Against this background, Tatum asked whether existing Cultural Property law might provide a remedy allowing the Sioux to secure the return of the land itself.  In so doing, she moved the conversation beyond the typical repatriation request and instead challenged some of the basing foundations of cultural property law itself.  She argued property should be amended to offer legal definitions which are more culture-specific.  Tatum also asked whether the Black Hills might fit within some of the definitions of cultural property as provided in the 1954 Hague Convention, and various UNESCO conventions, including the 1970 Convention.  She offered as one solution, the potential for multiple cultures to use and enjoy public lands.  This is the current model in many Federal land management systems. 

Tatum put cultural property scholarship into concrete terms, pointing out why the Sioux should be entitled to some remedy, and offering a pointed critique of the current flaws in cultural property law.  I'm very much looking forward to the final paper.