Since federal courts did not see Bear Butte’s protection as a First Amendment issue in Fools Crow v. Gullet, Lakota members seeking either ownership of the land, control over who has access to the mountain, or a buffer zone between Bear Butte and the load bars and concert venues of Sturgis will have to take different routes to achieve their goals. At the root of the issue is the broken Treaty of Fort Laramie, which affects the entirety of the Black Hills.
Moving forward, the fight to protect religious freedom rights may be fought in the arena of treaty law. Additionally, the Lakota’s case becomes difficult to make due to the fact that the disruption will not actually be located on Bear Butte itself. However, the Butte does have some protection – it is not open for private development itself. It was labeled a National Historic Landmark under the National Historic Preservation Act of 1966, an act meant to preserve and protect the historic resources of the U.S. In Section 1, the National History Preservation Act states that:
The preservation of [Native American] irreplaceable heritage is in the public interest so that its vital legacy of cultural, educational, aesthetic, inspirational, economic, and energy benefits will be maintained and enriched for future generations of Americans.
Section 1 NHPA1National Historic Preservation Act of 1966, Public Law 102-575 (1992) Section 1.
Unfortunately, the Act only applies to projects in which federal funds are being utilized. And being as the proposed development is funded entirely privately, the Act may afford little protection against the proposed development.
The Lakota will undoubtedly experience legal obstacles when trying to make their case. The major legal protection that Jay Allen and Gary Lippold have is property rights. Both Gary Lippold and Jay Allen own the land that they plan to develop. Therefore, both Lippold and Allen, as owners of this property surrounding Bear Butte, have the right to construct bars and concert venues on the land in order to turn a profit – land that the Lakota maintain was stolen from them.
