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

by Steve Fiffer

  trolled by the Government of the United States." The "objects of antiq-

  uity" in this instance were fossils.

  Jenkins replied that he hadn't k n o w n he was on federal land d u r i n g

  a collecting expedition in M o n t a n a . He had, he said, inadvertently

  crossed an u n m a r k e d b o u n d a r y o n t o Bureau of Land M a n a g e m e n t

  property. Academic and commercial collectors alike could sympathize.

  The boundaries between private and public lands were often u n m a r k e d ,

  and maps were often outdated or difficult to read.

  But Jenkins went beyond claiming ignorance. He challenged the

  constitutionality of the Antiquities Act. In doing so, he cited a previous

  case involving Native American masks in which the Ninth Circuit C o u r t

  of Appeals had held the act "fatally vague" after the defendants had

  raised the constitutionality question. T h e district court judge in

  Montana agreed with Jenkins and dismissed the charges.

  Until the seizure of Sue 16 years later, United States of America v.

  Farish Jenkins was the only reported case in the 86-year history of the act

  involving fossils rather than h u m a n artifacts such as Indian relics and,

  occasionally, shipwrecks on submerged federal land. In the absence of

  previous cases in which the act had been applied to fossils, h o w could

  Schieffer go before a federal judge and request a search warrant based

  on the institute's violations of the act? And how could he argue that the

  institute had no right to Sue because the act did not recognize private

  ownership of fossils excavated and removed from lands owned or con-

  trolled by the United States?

  1 0 6 TYRANNOSAURUS S U E

  In fairness to Schieffer, the request for the search warrant cited vio-

  lations of two other federal statutes in addition to the Antiquities Act.

  Still, in his public statements and in his brief supporting his motion for

  s u m m a r y j u d g m e n t in the case before Judge Battey, the U.S. attorney

  appeared to rely principally on the act. In the brief, Schieffer cited a 1956

  D e p a r t m e n t of the Interior m e m o r a n d u m . The m e m o r a n d u m acknowl-

  edged that the Antiquities Act didn't specifically refer to fossils but rea-

  soned that the government's long-term practice of granting permits for

  fossil collecting created "a strong presumption of the validity of the prac-

  tice." As a result, the m e m o r a n d u m concluded that the official position

  of the Department of the Interior was that fossils were covered by the act.

  If the Interior Department had remained silent on this question after

  1956, Schieffer would have had a point. But the department had been

  loud and clear in recent years, said Duffy in his brief supporting the insti-

  tute's own motion for s u m m a r y judgment. Duffy cited Department of

  the Interior m e m o r a n d a from 1977 and 1986 that reversed the 1956

  opinion. The 1986 m e m o r a n d u m had stated that "analysis in these terms

  would also lead to the conclusion that paleontological fossil specimens

  were not to be included under the sections of the act establishing permit

  procedures and penalty provisions." Schieffer had not mentioned this or

  the 1977 m e m o r a n d u m .

  Shortly after Duffy filed this brief and Williams filed his motion to

  enter the case as a friend of the court, Schieffer dropped a bombshell.

  "The United States will no longer rely on the Antiquities Act," he told

  the court in a brief responding to Williams's m o t i o n . Duffy was furious.

  "T. rex Fossil Finders Say G o v e r n m e n t Lied" ran the front-page headline

  in the Journal.

  Duffy told the paper that the government had known for 15 years—

  since its own 1977 m e m o r a n d u m — t h a t the Antiquities Act was designed

  to prevent the collection of artifacts, not fossils, from federal property.

  The U.S. attorney had obtained the warrant to seize Sue under false pre-

  tenses, said Duffy. "The basis for the seizure, or for continued holding of

  the dinosaur, no longer exists." Sue, Duffy said, should be returned to the

  institute.

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  I S A D I N O S A U R " L A N D " ?

  "Three million four hundred thousand."

  A faint smile crossed Maurice Williams's weathered face.

  This was all about money. He had been uncertain how much the

  T. rex would command. Now he had a good sense of her worth.

  "It's kind of like trading horses, isn't it?" the rancher would say

  later. "The true value is what you can get out of it."

  Maurice Williams was not naive. He was 66 years old when Sue was

  found. He held a college degree in animal sciences. He had once worked

  for the Bureau of Indian Affairs. According to unofficial reports, he

  owned m o r e than 35,000 acres of land. Those w h o knew h i m said he

  was a tough businessman.

  Williams had waited until the institute, the government, and his

  own Cheyenne River Sioux tribe were into the h o m e stretch before

  making his move. His motion to enter the case as a friend of the court,

  not Duffy's citation of the two D e p a r t m e n t of the Interior m e m o r a n d a ,

  caused Schieffer to alter his strategy. "To [rely on the act] could con-

  ceivably prejudice Williams and require that he be allowed to intervene

  as an indispensable party," Schieffer wrote. Such intervention would

  raise n u m e r o u s factual questions and necessitate a lengthy trial rather

  than a ruling based on the m o t i o n s for s u m m a r y judgment, the U.S.

  attorney knew. And such a trial might result in the determination that

  Williams, not the government, owned Sue.

  1 0 8

  TYRANNOSAURUS S U E

  In dropping the Antiquities Act argument, Schieffer was not dropping

  his claim that "the fossil is property of the United States. Period." In his

  m o t i o n for s u m m a r y judgment, he had offered an "alternative" argu-

  ment: Sue was land—real p r o p e r t y — h e asserted. Thus,

  the basic principles of real property law and Indian trust law

  m u s t be applied. Under this alternative approach . . . Maurice

  Williams . . . had no authority to unilaterally sell or convey the

  trust land or any objects e m b e d d e d in it without the knowledge

  and consent of the U.S.

  "Absolutely preposterous," Williams told the Indian Country Today.

  "If the government's position was followed to its logical conclusion, the

  government would also own all the timber, grass, oil, gravel, coal, and

  other minerals on trust land." The government had never previously

  claimed such rights. Indeed, Williams had sold oil rights on his proper-

  ty to Amoco.

  Williams had equally harsh words for the Cheyenne River Sioux

  tribe, which was still asserting ownership and threatening to bring action

  in tribal court. "I don't k n o w what this world is coming to," said the

  rancher. "The tribe is supposed to be protecting me. It has many, many

  fossils of its own on its own lands. Yet the tribal attorneys are exerting an

  extraordinary a m o u n t of time and energy trying to steal my fossil."

  Williams's enemies list didn't stop with the tribe. He we
nt on to crit-

  icize the United States Bureau of Indian Affairs (BIA). He said he had

  repeatedly asked the BIA to provide him with an attorney to represent

  his interests in the case. "Why can't the responsible federal officials

  respond properly to my repeated requests for justice and direction out

  here in Indian country?" he asked. "The government would have a m u c h

  stronger case against the Larsons if its officials would do the right thing

  by acting as my trustee and protecting my property interests."

  This criticism called to m i n d an episode involving the BIA, the Sioux,

  and Othniel C. Marsh over 100 years earlier. In 1874, Marsh was busy with

  the construction of the Peabody Museum at Yale, but he could not resist

  the invitation of U.S. Army officers to h u n t for fossils in the Badlands near

  the Black Hills. He arrived out West during a time of great tension. The

  Oglala Sioux felt that the federal government had violated an 1868 treaty.

  I S A D I N O S A U R " L A N D " ?

  1 0 9

  This treaty had ended a war between the U.S. Army and the tribe, led by

  its fearless chief Red Cloud. It gave the Sioux, as a "permanent reserva-

  tion," all of what is now South Dakota west of the Missouri River. Under

  the agreement, no white m a n could settle on the land or even pass

  through without the permission of the Sioux. In return, Red Cloud swore

  that he would never again wage war against the whites.

  Red Cloud had kept his promise, despite pressure from the m o r e

  militant members of his tribe, Sitting Bull and Crazy Horse. The United

  States, however, had reneged. In 1871, the government a n n o u n c e d that

  the Northern Pacific Railroad would r u n through the land in question.

  Then, in the s u m m e r of 1874, a few m o n t h s before Marsh arrived,

  General George Armstrong Custer led 1000 m e n to the Black Hills. They

  weren't looking for Indians. "Veins of gold-bearing quartz crop out on

  almost every hillside," Custer reported.

  The Sioux knew that a gold rush would bring in settlers. Feeling

  betrayed once again, they refused to cooperate with the U.S. Indian

  agent at the reservation and threatened trouble. The corrupt agent exac-

  erbated the hostilities by cheating the tribe of promised provisions. He

  dispensed rotten meat and threadbare blankets

  In The Dinosaur Hunters, Plate writes that despite the warnings of

  frontiersmen to stay away from the reservation, "Marsh stubbornly p r o -

  ceeded . . . and set up c a m p in the midst of 12,000 surly Indians." Once

  established, he sought permission to enter the Badlands to search for

  bones. Red Cloud was suspicious. Marsh, he reasoned (inaccurately),

  was interested in finding gold, not fossils. W h e n the chief balked, Marsh

  proposed a deal: If Red Cloud would help h i m get fossils, he would take

  Red Cloud's complaints about the agent and other fraudulent govern-

  ment practices back to Washington, D.C. Red Cloud agreed.

  The chief assigned Sitting Bull to take Marsh and his m e n into the

  Badlands. After a snowfall delayed the journey, the Sioux had a change

  of heart. They had received word that two angry tribes, the Miniconjous

  and Hunkpapas, lay in wait for the expedition. Marsh's friends in the

  army also cautioned against the trip.

  Marsh wouldn't quit. H o p i n g to persuade the tribe to reconsider its

  decision, he held a grand feast. After the meal, Red Cloud relented. He

  assigned his nephew Sword to escort the party. But again fearing the

  Miniconjous, the Sioux refused to go.

  1 1 0 TYRANNOSAURUS S U E

  Undaunted, Marsh and his m e n went gently into the night while the

  Sioux slept. The unescorted party reached the Badlands safely. There

  they found m a n y excellent fossils.

  Red Cloud did order his m e n to stand guard on the buttes above the

  fossil hunters. When the chief learned that the Miniconjous were plan-

  ning to attack, he sent word that Marsh should leave immediately. Marsh

  refused. A hasty exit would necessitate abandoning his haul of fossils. The

  professor insisted on spending one more day at the site to pack the bones

  safely for the trip back east. He and his men finally left only hours before

  a Miniconjous war party reached the spot where they had camped.

  Marsh kept his promise to Red Cloud and went to Washington

  when he returned h o m e . By this time the Sioux were facing starvation.

  T h e government rations were both insufficient and inedible.

  The corrupt administration of President Ulysses S. Grant showed

  little interest in Marsh's report. The professor persisted. He pressed his

  case in the media, revealing ten major government frauds, including

  kickbacks to contractors. T h e administration and those businessmen

  benefiting from the fraud responded by personally attacking Marsh. He

  was, they said, seeking fame, or he had been bribed, or he was just plain

  crazy.

  Remarkably, after several m o n t h s , Marsh prevailed. The Secretary of

  the Interior, the head of the Bureau of Indian Affairs, and the agent on

  the reservation all resigned or were fired. Plate reports that Marsh's tri-

  u m p h m a d e Red Cloud his friend for life. The Sioux chief sent Marsh a

  peace pipe and wrote: "I thought he would do like all white men, and

  forget me when he went away. But he did not. He told the Great Father

  everything just as he promised he would, and I think he is the best white

  m a n I ever saw."

  Now, a century and a quarter later, Williams was willing to put his

  fate in the U.S. attorney's hands. After finally getting his audience, via

  telephone, with the Interior D e p a r t m e n t , Williams decided not to inter-

  vene in the case because, he said, "my interests would be adequately pro-

  tected in the lawsuit by the U.S. government." Schieffer, however, never

  publicly stated that he was representing Williams's interests.

  T h e Larsons knew exactly where they stood with the U.S. attorney.

  By the middle of January, the two brothers, partner Bob Farrar, chief

  I S A D I N O S A U R " L A N D " ? I l l

  preparator Terry Wentz, administrative assistant Marion Zenker, cura-

  tor David B u r n h a m , and three other institute workers had been s u b -

  poenaed to appear before the grand jury.

  On January 19, the "Institute 9" traveled to Rapid City. T h e Larsons,

  Farrar, and Wentz—the four from the institute assumed to be u n d e r

  investigation—were asked only for handwriting samples, not personal

  testimony. Afterward Duffy complained that all those subpoenaed had

  been harassed, intimidated, and treated shoddily. "It's like Bosnian

  jurisprudence," he said. Some had to sit on the floor of the waiting

  room, which had only three chairs, he said. All, even those w h o testified

  early in the m o r n i n g , were forbidden to leave until 6:30 PM.

  B u r n h a m said that the assistant U.S. attorney questioning h i m

  "screamed and yelled at me." He added: "I don't even k n o w why I was

  there except to be abused and harassed." Ron Banks, an attorney repre-

  senting some of those testifying, concurred. "It's deplorable the way they


  treat witnesses," he told the Journal.

  In a letter to the paper, Schieffer said that attorneys w h o truly

  believed that their clients' rights were being violated had instant access

  to the federal court to stop such abuse. N o n e had d o n e so. He denied the

  charges of harassment and d e m a n d e d that the paper apologize for p u b -

  lishing reports of intimidation.

  Before the m o n t h was over, the government once again subpoenaed

  institute records. Peter Larson said that the subpoena required the insti-

  tute to turn over almost everything but equipment and fossils—virtual-

  ly all remaining business records, field notes, videotapes, and p h o -

  tographs. Sixty-four general a n d specific items were requested, includ-

  ing d o c u m e n t s related to 20 tons of fossils collected in Peru. Larson sug-

  gested that the broad d e m a n d required him to send the government

  even the 33-year-old picture of h i m a n d Neal in front of their "muse-

  um." He posed for the Journal holding the photo. T h e institute had 24

  hours to comply with the request.

  During the same week that this subpoena was served, six FBI agents

  arrived at the institute with a court order authorizing t h e m to p h o t o -

  graph more than 100 different fossil specimens. " D u r i n g the agents'

  v i s i t . . . local residents reportedly refused to offer [the] agents coffee or

  even allow them to use private b a t h r o o m facilities because of their ris-

  1 1 2

  TYRANNOSAURUS S U E

  ing level of anger at the federal government's handling of. .. the case,"

  noted the local Tribune/News.

  Following the subpoenas and the grand jury appearances, a newly

  established citizens' organization in the Hill City area, the Government

  Accountability G r o u p (GAG), sent a petition to the U.S. Department of

  Justice and the Senate Judiciary Committee. The petition sought i m m e -

  diate investigation into alleged violations of the Fourth, Fifth, Sixth, and

  Fourteenth A m e n d m e n t s by Schieffer, Zuercher, and FBI Agent Asbury

  in their "conspiracy of harassment" against the institute. Charging

  Schieffer and Zuercher with malpractice and malfeasance, GAG also

  sought disbarment hearings of the pair. Finally, the petition also asked

  the newly inaugurated President Clinton to replace Schieffer with an