This West Is OUR West

Another Battle at the Little Big Horn: Custer Museum Director in the Crosshairs of the BLM

Published by Chris Kortlander in the Spring 2011 Vol 21 №2 issue of ATADA News

Collecting isn’t always easy, even on the institutional level. Custer Museum director Chris Kortlander, Founding Director of the Custer Battlefield Museum, reports on his ongoing legal battle with federal agencies after the museum was raided twice by federal agents. Kortlander is a long-standing member of ATADA.

Museums serve a vital function in the preservation of antiquities and the history of various societies. It is museums, public and especially private, that house and care for a collection of artifacts and other objects of scientific, artistic, or historical importance, making them available for public viewing through exhibits. The exhibits may be permanent or temporary, and the collections may be shared between museums.

What seems to be lost on the federal government is that from the earliest times, museums began as the personal collections of wealthy individuals, families or institutions. It is collectors that supply museums, and thus, we owe thanks to these collectors that so much of our history is preserved, allowing average citizens to explore collections for inspiration, education, and enjoyment. Modern museums acquire, safeguard and make accessible the artifacts and specimens of our past, and in doing so, they hold these historical pieces in trust for all of mankind.

Garryowen and the Custer Battlefield Museum In 1994, I founded the Custer Battlefield Museum, located in the historic town of Garryowen, Montana. The Museum is situated at the site of Sitting Bull’s camp, where the infamous Battle of the Little Big Horn began in 1876.

The battlefield is a large area, covering more than 15 square miles. In 1876, the Sioux and other tribes fought and destroyed the 7th Cavalry under the command of George Armstrong Custer. However, history was not well preserved at this famous battlefield, and in 1994, the land was part of the Crow Indian Reservation, a non-warring tribe that was not even part of the battle. The battlefield is divided between a few acres of land administered by the National Park Service, and land allotted to various Crow Indians, and fee land held in private ownership by non-Indians.

Starting from scratch to preserve the history and legacy of the most famous battle of the Indian wars, I began to legally acquire contemporary artifacts, recovered from fee property, for future display in the Custer Battlefield Museum. Like other museums, objects were acquired through a variety of means. Typically, museums purchase or trade for artifacts, or receive them as donations or bequests. Individuals will also loan objects to museums for public display or for safe storage.

The First Raid at Garryowen

In 2005, the law enforcement arm of the Bureau of Land Management, providing false information to a federal judge, obtained and executed a search warrant on the Custer Battlefield Museum. The search warrant was issued to look for evidence of mail fraud, but the stated public purpose was to search for evidence of illegal commerce in Indian artifacts. Some two dozen heavily armed federal agents descended on Garryowen, literally probing every nook and cranny, and seizing hundreds of artifacts from the Museum. As the search and investigation progressed, I was threatened with nine felonies and was repeatedly told that I was going to be indicted and would spend a very long time in federal prison, possibly the rest of my life.

The Second Raid at Garryowen

Three years later, federal agents returned with another search warrant and seized more items from the Museum, alleging that they were contraband and evidence of yet more felonies. The effect of the two raids was to destroy the heretofore successful efforts of the Museum directors and staff to accumulate a collection of historically significant artifacts pertaining to the Last Stand at the Little Big Horn. But after more than five years of investigations, presumably millions of federal dollars expended, and the financial ruination of me, the Custer Battlefield Museum and the various businesses located at Garryowen, no charges were ever filed. Not even one.

Legal Actions

So it is now, that I, the Museum, and the other business I operate at Garryowen, are striking back in federal court, moving in several directions. A multi-million dollar administrative claim, filed under the provisions of the Federal Tort Claim Act, was served upon the Billings, MT, office of the BLM, asking for damages caused by the actions of that agency.

In addition, in December 2010, I filed a federal lawsuit in Billings Federal District Court directed against all of the federal agents involved in the raids for violating the Constitutional rights of others and me. This so-called Bivens action is a judicially created remedy for those whose Constitutional rights have been violated by federal agents while acting under the cloak of federal authority, but nonetheless outside the authority granted the federal government by the U.S. Constitution.

I am also seeking to open the federal books on the investigation(s) they conducted. Several Freedom of Information Act requests have been filed with the federal agencies involved in the investigation and raids. In November 2010, I filed a FOIA federal lawsuit in Billings Montana, in an effort to compel the BLM to provide all of the records and files associated with my case. More than a year later, BLM officials finally provided me with 2434 pages of documentation concerning their actions directed toward me, the Museum, and/or the businesses located in the town of Garryowen. Nearly 25% of the information contained in these files has been redacted, and much of the specific information I requested was not included. Because of this, I am going back to court to compel the BLM to provide the specific documentation that was requested. This will serve as a roadmap to our discovery process in the Bivens action.

Soon to be addressed is the matter of petitioning the Solicitor’s Office of the Department of the Interior to return items that were seized from the Museum and me. It is this seizure of private property — without any demonstrated claim that the seizure is lawful, or that the items seized were even contraband and thus illegal for the Museum or me to possess — this is perhaps the most alarming and threatening new reality to museums and collectors around the country.

With the complicated federal laws at issue, nothing concerning this case is simple, and it has all been very expensive. However, failure to challenge the bureaucratic largesse of the federal government, its agents, and the politically motivated policies of those bringing these and similar actions against our fellow citizens, will only result in our prolonged slide down a very slippery slope. The federal threat is real and can be very personal. And it is fundamentally wrong.

I have launched litigation that is likely to take years. If it is successful, it will set precedent, and will put on notice all federal agents who operate outside the parameters of the U.S. Constitution. I have sued 24 federal agents in their individual capacity, seeking a legal remedy created by common law — a Bivens action — created by the U.S Supreme court to legally right their wrongs. My Bivens lawsuit contains strongly worded charges that the federal agents were operating outside the parameters of their federal law enforcement training and outside the scope of the U.S. Constitution.

I feel compelled to write this article to educate the public and ATADA members about the federal raids that transpired in Garryowen, Montana in 2005 and 2008, and the legal remedies that are afforded to U.S. citizens when federal agents overstep their bounds. Let this be notice and a friendly reminder that this type of abuse of federal power could also happen to them at any time.

Search Warrant Application Gag Order

In 2010 I had limited success in prying open the veil of secrecy. I had asked to see the documents used to obtain the search warrants used to destroy my life and livelihood. Overcoming strenuous objections by the United States government, a federal Judge in Billings ordered that I be allowed to see the search warrant applications in my case. This is automatic when someone is indicted, but I was never charged. However, bowing to a request of the United States Attorney, the Judge ordered that I be blocked from using the Internet to expose the procedures used by federal agents to invade and ruin my life.

I have asked the 9th U.S. Circuit Court of Appeals to review the ‘gag’ order placed upon me. I am encouraged by a recent 8 to 1 Supreme Court decision supporting the Freedom of Speech we have in the Bill of Rights, and expect a decision in my case in the next several weeks.

Final Thoughts

It is very clear from the news and from my personal experience of being the subject of persecution at the hands of unrestrained federal agents that our freedoms are under attack. More than ever before we need to be vigilant and united in protecting our freedom and our specific rights set forth in the Constitution; we should be protecting those rights from those who would take them away for any reason, and mostly for no good reason, whatsoever.

The events and issues I have identified here are of great concern to all ATADA members, and I encourage each of you to become involved in putting an end to these types of questionable federal activities. The most constructive and effective way to bring about the changes we so desperately need in the application of federal law to the collectibles field is to combine our voices and put pressure on our representatives in Congress as a group. Although it is often a daunting and frustrating effort, I have personally seen the positive changes that can be made when individuals come together and fight for a common cause. Our Congressional representatives and their senior staff members do listen, and will listen, if enough voices make themselves heard. I urge each of you to add your voice to the chorus in Washington, D.C.

For more information and ways to help contact Christopher Kortlander Founding Director, Custer Battlefield Museum chris@custermuseum.org