by Steve Fiffer
president of the National Academy of Sciences. The professor was also
n a m e d vertebrate paleontologist to the U.S. Geological Survey, a posi-
tion that assured h i m of funds to continue h u n t i n g for bones.
Already reeling from his o w n misfortune and Marsh's good fortune,
Cope suffered a knockout p u n c h w h e n the D e p a r t m e n t of the Interior
d e m a n d e d that he t u r n over everything he had collected while survey-
ing for the government to the U.S. National M u s e u m . Cope, w h o had
been an unpaid volunteer on m a n y surveying expeditions, had assumed
that his finds belonged to h i m . He sensed that Marsh had orchestrated
this unwarranted action.
On his way d o w n , C o p e took one last swing at his longtime neme-
sis. Williston a n d others employed by Marsh had long complained that
the professor had taken credit for m u c h of their work. Cope fed this
information to a friend at the New York Herald. In 1890, the paper ran a
lengthy story d a m n i n g Marsh. The bad publicity eventually led to a
reduction of funding for the Geological Survey and Marsh's resignation
from his post there. As expected, Marsh struck back. The Herald p u b -
lished his rebuttal to Cope's charges, in which he recounted the 21 -year-
W H O O W N S S U E ? 9 9
old story of the Elasmosaurus a n d charged that Cope had once broken
open crates of fossils that belonged to him.
Broken financially, Cope supported himself by taking a professor-
ship at the University of Pennsylvania and selling m a n y of his remain-
ing fossils to the American M u s e u m of Natural History in 1895 for
$32,000. He died in 1897 at the age of 57.
Most of Marsh's finds remain at the Peabody M u s e u m . The speci-
mens he collected with U.S. Geological Survey monies went to the
Smithsonian. He died in 1899 at the age of 67.
Each m a n did receive an i m p o r t a n t h o n o r shortly before his death.
In 1895, Cope was elected president of the American Association for the
Advancement of Science. In 1897, Marsh received the Cuvier Prize, the
highest award in his field. T h e French Academy presented this h o n o r
every three years. Marsh was only the third American recipient, follow-
ing Louis Agassiz and Joseph Leidy.
Edwin Drinker Cope is one of Peter Larson's heroes. Unlike Marsh, w h o
was affiliated with and funded by a university and the government,
Cope was an independent contractor w h o bankrolled his own opera-
tions. Although he might be defined today as a commercial collector, he
was first and foremost a brilliant scholar. "He was a little guy fighting
the greater powers, the underdog," Larson says.
Larson notes that he and Cope had something else in c o m m o n
besides funding their own projects and working without institutional
attachment. In 1889, the federal government had d e m a n d e d m a n y of
the prize fossils Cope had collected over the years. In 1992, history
seemed to be repeating itself with the government's seizure of Sue.
By the time the Eighth Circuit heard oral arguments in St. Paul on
October 14—five m o n t h s to the day after the seizure—Larson clearly
felt he was the underdog. The institute had r u n up over $100,000 in
legal fees trying to get Sue back. Business had also suffered. Many old
clients and prospective clients were keeping their distance, waiting to see
how the courts decided the matter.
On November 2, the Eighth Circuit announced its decision. Referring
to Judge Battey's three-day hearing to determine temporary custody of
Sue, Judge Magill wrote: "Not unlike the dinosaur in size, this hearing
built up 628 pages of transcript, with 14 witnesses, and 114 exhibits." He
1 0 0
TYRANNOSAURUS S U E
then noted that existing case law required the Eighth Circuit to give Judge
Battey's analysis of the testimony the benefit of the doubt, unless he made
some obvious mistake.
Were Judge Battey's findings clearly erroneous? No, said Magill.
Therefore: "We affirm the district court's order n a m i n g the South
Dakota School of Mines a n d Technology as custodian of the fossil . . .
and r e m a n d for further proceedings on the merits." Sue would stay
where she was until Judge Battey ruled on the institute's lawsuit asking
for a determination of w h o had the superior possessory interest in the
bones, the institute or the government.
Larson was again devastated. Sue would be spending the winter
inside a storage container inside a machine shop inside a garage—like
some precious Faberge egg within another egg. After 21 m o n t h s of
touching Sue a n d talking to her, Larson had put flesh on her bones,
brought her back to life. She was no longer a fossil to him. She was a liv-
ing being sharing the stories of her past, the most intimate details of her
existence. Their relationship transcended the physical; it was spiritual as
well. Now, b o t h her body and her soul were in jeopardy. And all he could
do was stand outside the garage and tell her that everything would be all
right.
Duffy reacted to the decision in lawyerly fashion, referring to Sue as
"it" instead of by her given n a m e . "[The] ruling affects only the t e m p o -
rary custody issue," he told the press. "I am disappointed that for the
winter it will be kept in an unheated garage, but the bulk of the case
remains before us." He added that he had confidence in the jurist who
had to date ruled against the institute at virtually every t u r n . "The case
will require a lot of study and hard work, and Judge Battey is very good
with difficult legal issues," he said.
There was no need for Schieffer to spin or flatter. The Eighth Circuit
had given h i m everything he wanted. "Obviously we were pleased with
the decision," he said. "I would like to claim it was because of some bril-
liant lawyering, b u t the facts were pretty straightforward."
The Cheyenne River Sioux tribe also expressed satisfaction with the
court's decision. "This will be helpful to us," Steve Emery, the tribal
attorney general, told Indian Country Today. He added that the tribe
planned to file an action for Sue in tribal court in the near future. "If the
W H O O W N S S U E ? 1 0 1
tribe is able to vindicate all its interests, the fossil would likely become
the focal point of a tribal museum." Pat Leiggi had agreed to help train
the tribe in the curation of fossils.
On the day following the decision, U.S. voters elected William
Jefferson Clinton the nation's forty-second president. By chance, that
same day, Casey Carmody, the Seattle mineral and fossil dealer w h o was
friendly with Hendrickson, received a letter from Clinton. Weeks earli-
er, C a r m o d y had been invited to participate in a televised "town meet-
ing" with Clinton, the candidate. She had told him about Sue on the air
and said she felt the government had abused its seizure laws. After the
meeting, Clinton had m a d e a point of talking to her. She had then sent
him material about the case.
In his letter to Carmody,
Clinton wrote: "The information you sent
me regarding the seizure of fossils and records pertaining to 'Sue' seems
thorough and insightful. Due to the increasing d e m a n d s of my sched-
ule, I've asked my staff to review it."
Neither C a r m o d y nor the institute interpreted this letter as an
endorsement of their position, but they did see positive ramifications in
his ascension to the presidency. Clinton, like every president w h o had
preceded him, would soon install people of his own liking in many
appointive positions, such as U.S. attorney. Schieffer, a Republican
appointee, was already on shaky ground. The Senate had never con-
firmed him; he was still the acting U.S. attorney. He was a p r i m e candi-
date to be replaced by the new Democratic administration.
No one could predict how a new U.S. attorney would handle this
case on inheriting it. But the institute's chances of reaching a " c o m m o n
understanding" with the government would undoubtedly be better with
a different prosecutor. Some observers felt that Schieffer had backed
himself into a corner with his dramatic raid and subsequent public
statements and that the only way he could save face and prove the edi-
torial writers and the protesters wrong was by winning p e r m a n e n t cus-
tody of Sue and indicting the Larsons, not by settling the matter.
Schieffer offers a different explanation: that the law supported his
position that the institute had no claim to Sue. "It was a no-brainer," he
says. As for the criminal case, it would be up to the grand jury to deter-
mine whether indictments were warranted.
1 0 2 TYRANNOSAURUS S U E
With the clock r u n n i n g out on his tenure, Schieffer wanted nothing
m o r e than to end the matter quickly. "We can hopefully proceed in a
straightforward m a n n e r a n d let it be resolved by the legal process, where
it rightfully belongs," he said following the ruling.
In an effort to effect a swift resolution on the institute's original
lawsuit to d e t e r m i n e w h o had the superior possessory claim, Schieffer
had filed a m o t i o n for s u m m a r y j u d g m e n t on October 28. Such a
m o t i o n is based on a party's assertion that there is no genuine issue as
to any material (or, essential) fact in the case. Therefore, there is no
need for a trial before a jury to elicit any facts. Instead, the judge can
render a final decision based solely on the applicable case law and
statutes.
What were these indisputable material facts in Black Hills Institute
(Plaintiff) v. The United States of America, Department of Justice
(Defendant) . According to the government:
7
1. The subject of plaintiffs' claim is a fossilized skeleton of a
Tyrannosaurus rex approximately 65 million years old.
2. The land from which the fossil was taken is Indian trust
land within the exterior boundaries of the Cheyenne River
Sioux R e s e r v a t i o n . . . .
3. Title to the above land is held by the United States.
4. In 1969, Maurice A. Williams received a beneficial interest
in the above land by virtue of a d o c u m e n t which on its face
states "That the U N I T E D STATES OF AMERICA . . . here-
by declares that it does and will hold the land above
described (subject to all statutory provisions and restric-
tions). . . . " [Translation: the government was holding the
land in trust for Williams.]
5. The fossil at issue in this case was removed by plaintiffs
without the knowledge or consent of the United States.
In a brief supporting this motion, Schieffer presented the cases and
statutes that, he argued, warranted s u m m a r y j u d g m e n t in the govern-
ment's favor.
W H O O W N S S U E ? 1 0 3
Confronted with a m o t i o n for s u m m a r y judgment, an opposing
party has two choices. It can argue that there are material facts in dis-
pute and that therefore the m o t i o n m u s t be dismissed a n d the trial
should go forward. Or, it can make its own m o t i o n for s u m m a r y judg-
ment—agreeing that there are no facts in dispute, but arguing that the
case law and statutes support a decision in its favor. The institute chose
this second alternative.
After disagreeing on virtually everything for six m o n t h s , the insti-
tute and the government were n o w saying that they agreed on the
underlying facts of the case. Judge Battey would not have to hold a trial
or hearing to determine the facts. He could simply read each party's
brief and listen to each one's a r g u m e n t explaining why it was entitled to
victory based on the cases and statutes it cited.
Or could he? "Rancher Stakes His Claim to Sue" said the headline in
the December 2 Rapid City Journal. "Just when you thought you u n d e r -
stood the case of the Tyrannosaurus rex n a m e d Sue, along comes
Maurice Williams, w h o n o w says the famous fossil belongs to him,"
began reporter Harlan's story. Williams had remained on the sidelines
while the government, the Sioux, and the institute had wrangled over
custody of the dinosaur found on his property almost two and a half
years earlier. Now, one day after the institute had filed its own motion
for s u m m a r y judgment, he attempted to enter the case. He went to
Judge Battey's court seeking leave to file a "friend of the court" brief.
The gist of the brief was simple: Williams claimed that he—not the
government, not the Cheyenne River Sioux tribe, not the institute—was
"the current, legal owner of the Tyrannosaurus rex named Sue." In the brief
he asserted that the institute had "hoodwinked" him out of a fossil "worth
millions of dollars." He explained that he had accepted the $5000 check
from the institute "as payment for egress to and waste committed on his
trust land in the excavation of Sue," not for the fossil itself. In an apparent
contradiction to his comments on the videotape, he claimed that he
allowed the institute to remove Sue only to clean and prepare her for a later
sale. In a later interview, Williams reaffirmed these arguments. "I thought
[the institute] knew at the time a check isn't a contract," he said.
Williams further asserted that the trustee of his land, the U.S. gov-
ernment, had "breached its fiduciary duty" to h i m by claiming the fos-
sil for itself instead of protecting his interest in it. The Antiquities Act of
1 0 4
TYRANNOSAURUS S U E
1906 did not allow the federal government to take possessory interest in
fossils found on Indian lands, he argued.
W h a t did Williams want from Judge Battey? In his brief he argued
that ownership of the fossil could not be determined without a full trial
and his (Williams's) participation. Therefore, he said, the judge must
deny both the institute's and the government's motions for s u m m a r y
judgment.
Williams's eleventh-hour ownership claim inspired D o n Gerken, a
columnist for the Hill City Prevailer. Tongue firmly in cheek, he invited
his readers to join the fray in a "Stake Your Claim to Sue!" contest. "You
&nbs
p; too can file your claim for ownership of Sue," wrote the columnist. "It's
fun!!! It's easy!!!" He then asked readers to state why they deserved the
dinosaur. A m o n g the choices he offered were: "I once saw the fossil,"
"I'm related to Sue," "I voted Republican in the last election," "I'm a
minority," "I'm not a minority," and "I need the bucks."
A few weeks later, those actually claiming Sue played: "I think Sue is
mine because . . . " on national television. "It may be the custody battle of
the century," intoned anchor Sam Donaldson of ABC News's Primetime
Live. "Scientists, Indians, the U.S. government—they're all trying to lay
claim to a bunch of old bones. Well, not just any old bones . . . "
On camera, correspondent Sylvia Chase asked the same question of
four grown m e n .
Chase: W h o owns Sue?
Maurice Williams: If the laws of the land mean anything, I own
it.
Gregg Bourland: We believe we do, the Cheyenne River Sioux
tribe.
Kevin Schieffer: The public owns Sue.
Peter Larson: The Black Hills M u s e u m of Natural History
Foundation.
These q u a d r a p h o n i c "I do's" brought to m i n d four children squab-
bling over the last piece of pie, each child intractable.
Chase asked Williams why he claimed ownership. "Isn't it the
money?'
'It's always the money," said Williams.
W H O O W N S S U E ? 1 0 5
It wasn't the m o n e y that had motivated the government to seize
Sue. Schieffer had secured that initial search warrant in May, in large
part by persuading Judge Battey that there was probable cause that the
institute had taken the fossil in violation of the Antiquities Act. For eight
m o n t h s he had continued to invoke the act w h e n explaining to the p u b -
lic why he seized the dinosaur. He had also presented the institute's vio-
lation of the act as the p r i m a r y of two theories in support of his m o t i o n
for s u m m a r y j u d g m e n t in the case for ownership before Judge Battey.
Was the Antiquities Act applicable to fossils?
In 1974, Dr. Farish Jenkins, a respected Harvard paleontologist, was
arrested and charged with a federal crime u n d e r the act because he "did
appropriate, excavate, injure, or destroy a historic or prehistoric relic or
m o n u m e n t , or an object of antiquity situated on lands owned or con-