Tyrannosaurus Sue-- The Extraordinary Saga of the Largest, Most Fought Over T. Rex Ever Found

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

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  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

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  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-