by Steve Fiffer
interim U.S. attorney and to issue "an executive order to cease and desist
in this merciless and vindictive persecution." A second executive order to
return the subpoenaed d o c u m e n t s and specimens was also requested.
Travis Opdyke, a writer a n d former FBI employee, wrote the peti-
tion. He explained that he had been moved by "the t r e m e n d o u s a m o u n t
of anger" engendered in the c o m m u n i t y by the government's actions.
Opdyke was married to the institute's Marion Zenker.
Experienced criminal defense attorneys don't like to second guess
their fellow practitioners. However, many will say that during an investi-
gation they endeavor to maintain a cordial, civil relationship with the pros-
ecutors w h o have the power to indict their clients. The rancorous relations
between the U.S. attorney's office and the institute and its lawyers and sup-
porters—no matter whose fault—had the potential to sabotage future
attempts by Duffy to, if necessary, make a deal in the criminal case with
Schieffer that might benefit the Larsons. "Pat Duffy is a smart guy," Colbath
would later say. "But if you're going to use tactics like his—making your
witness a martyr in the press—you need a whole apparatus, a public rela-
tions machine, behind you. Sometimes when you're trying to make a client
into a martyr, the government is all too willing to help."
Duffy's curriculum vitae suggested that he was indeed "a smart guy."
The son of a lawyer, he was b o r n in 1956 and raised in Ft. Pierre, South
Dakota. Although Duffy always knew he wanted to be a lawyer, he had
been counseled by his father to get real-life experience before entering
the profession. Taking the advice to heart, he enlisted in the U.S. Navy
after high school. After receiving training in Russian, he was given the
I S A D I N O S A U R " L A N D " ? 1 1 3
opportunity to enroll at the U.S. Naval Academy. He did enroll, but two
years later he quit, returned h o m e , and married. He eventually received
his undergraduate degree from South Dakota State University. Still not
ready for law school, he worked as a stockbroker for several years.
Duffy finally entered the University of South Dakota Law School in
1983. There he served as editor-in-chief of the law review. After gradu-
ating in 1986, he went into private practice doing both civil and crimi-
nal trial work. He represented the institute for the first time soon after
graduation. Larson came to him after receiving a subpoena for the doc-
uments related to the government's Wyoming fossil investigation.
Never o n e to mince words, Duffy had confronted Schieffer soon
after the seizure. "I said, 'You asshole. You lied to me,'" Duffy recalls,
referring to Schieffer's prior assurance that no raid was i m m i n e n t (an
assurance Schieffer says he never m a d e ) . Schieffer told h i m that such a
response was necessary to "preserve the integrity of the operation,"
remembers an incredulous Duffy, w h o adds, "That's like the stuff we
heard from Vietnam: 'We destroyed the village in order to save it.'"
Duffy told Schieffer that the raid was totally unnecessary. "If Kevin
had just called me and said, 'Let's litigate,' I'd have promised [that Sue
would be kept safe]," he said m a n y years later.
Duffy knew he was taking a risk in playing the case out in the press.
"In many cases I don't say a thing," he says. "But [here] my media pres-
ence was absolutely necessary. W h e n Schieffer lied to me and showed up
in pancake makeup, I knew this wasn't like dealing with a real lawyer. I
had to fight back. This was [Schieffer's] publicity platform for a judge-
ship or his run for the Senate. He was writing op-ed pieces. I had to keep
the temperature of the body politic such that we could get a fair trial."
Bob Chicoinne, a p r o m i n e n t Seattle attorney w h o also represented
Hendrickson, questions Duffy's strategy. "Being aggressive with the
other side is o n e thing," he says. "But once it becomes personal, that's the
worst thing. You are dealing with prosecutors w h o have an i m m e n s e
a m o u n t of power. It's bad enough to piss off an assistant U.S. attorney,
but to piss off the U.S. attorney himself is crazy."
In Chicoinne's opinion, the most effective lawyers keep themselves out
of the spotlight and certainly don't shine it in the eyes of those who may
decide their client's fate. "Prosecutors and judges are h u m a n , too," says
Chicoinne. "They don't like to have their integrity questioned in public."
1 1 4 TYRANNOSAURUS S U E
Schieffer was equally baffled by Duffy's tactics. "Maybe they thought
their best chance was trying the case by press release rather than by seri-
ous civil lawsuit," he says. "But it was a bizarre strategy as far as I could
figure out that didn't do too m u c h for the client. It was different than
anything I ever experienced."
Federal rules prevented Schieffer from publicly discussing the crim-
inal investigation. Once the grand jury convened, he generally adhered
to those rules, refusing to respond to the attacks of Duffy a n d the Larson
brothers' supporters. As a result, the institute w o n the media battle.
Schieffer is the first to admit this. "We knew public relations was
going to be a huge headache no matter h o w you sliced it," he says.
Although blessed with what he terms a "fairly thick skin," there were
times when he would have liked to tell the government's side of the story
to the public. "These guys had flagrantly violated the law," he says,
adding, "If you start from the beginning, they knew this was not a
[mere] $5000 specimen. The skullduggery started the very first day."
As the grand jury's investigation of alleged skullduggery heated up,
the case to determine w h o owned or at least w h o should possess Sue
seemed to be winding down. Because the government and the institute
had agreed to all the material facts of the case, Judge Battey's decision
would in all likelihood depend on h o w he answered a question that
seemed m o r e appropriate for a philosophy classroom than a courtroom:
Is a fossil personal property (in this case, an object apart from the land)
or real property (part of the land itself)?
Said the government: The fossil was land or an interest in land;
therefore Williams did need government permission to sell it. Said the
institute: The fossil was neither land n o r an interest in land; therefore
Williams did not need permission.
Congress's effort to regulate Indian lands dates back to the nine-
teenth century. In a South Dakota Law Review article, "Jurassic Farce,"
Duffy a n d coauthor Lois Lofgren presented a comprehensive history of
such regulation. This history says as m u c h about how society viewed
Native Americans as h o w it viewed their lands:
If these wards of the nation were placed in possession of real
estate, a n d were given capacity to sell or lease the same, or to
make contracts with white m e n with reference thereto, they
I S A D I N O S A U R " L A N D " ?
1 1 5
would soon be deprived of their several holdings; a
n d . . .
instead of adopting the customs a n d habits of civilized life a n d
becoming self-supporting, they would speedily waste their sub-
stance, and very likely become paupers.
So said the Eighth Circuit in the case of Beck v. Flournoy Live-Stock
and Real Estate Co. In this 1894 decision, the court was interpreting the
Congressional intent behind enactment of the General Allotment Act of
1887 (GAA). The GAA gave individual Native Americans a parcel of land
(or "allotment") to "enable them to become independent farmers and
ranchers." Each Native American "owned" the land for the purposes of
farming, grazing, and residence, but the United States held title to the allot-
ment in trust for 25 years. During that time, the land could not be sold,
transferred, or taxed. By creating this quarter-century trust period,
Congress intended the Native American "to become accustomed to his
new life, to learn his rights as a citizen, and prepare himself to cope on an
equal footing with any white m a n who might attempt to cheat him out of
his newly acquired property." In Beck, the court noted that the act protect-
ed Indians "from the greed and superior intelligence of the white man."
The Indian Reorganization Act of 1934 stopped the allotment poli-
cy. However, the act provided an indefinite extension of the trust peri-
od mandated by the GAA. It also assured that the trust be passed on to
the heirs of the landowner. Apparently, Congress still believed that
Native Americans needed to be protected from their o w n incompetence
and the white man's greed.
Over the next 14 years, the Native Americans either demonstrated that
they were more competent than previously believed or the white m a n
demonstrated that he was less greedy. The petition process was instituted
in 1948, when Congress gave the Secretary of the Interior "discretion . . .
upon application of the Indian owners to . . . approve conveyances with
respect to lands or interests in lands held by individual Indians."
"Lands or interests in lands" was the operative phrase, argued Duffy.
Sue was neither, and therefore there was no need for Williams to peti-
tion, the institute argued in its brief:
Sixty-five million years ago, when Sue was alive, there was no
doubt that a Tyrannosaurus rex was not "land." . . . After Sue
1 1 6 TYRANNOSAURUS S U E
died, her bones on the surface of the earth remained personal
property. While the bones were lying exposed on the earth, they
were certainly "movable" and thus were personal property with-
in the m e a n i n g of South Dakota law. Likewise, after the partial-
ly buried fossil was unearthed, there is no d o u b t whatsoever
that the rex was personal property.
In its brief, the government offered its own analysis as to whether or
not Sue was land:
Under South Dakota law, "land is the solid material of the earth,
whatever may be the ingredients of which it is composed,
whether soil, rock, or other substance." . . . The analogy to min-
erals and other substances which, though eons ago organic, have
long since become part of the earth is here well placed. Indeed,
the composition of the fossil is primarily rock and mineral.
Duffy knew that forcing Judge Battey to decide whether Sue was
land or personal property was to put h i m between a rock and a hard
place. T h e institute's brief, therefore, offered an additional reason for
deciding that its possessory interest was superior to the government's.
As a matter of "public policy," the court should not void Williams's sale
of Sue to the Larsons, Duffy argued:
The b o t t o m line is that Williams, as an Indian, should have as
m u c h right to sell fossils from his land as would a white person
from her land, particularly in this day and age of economic self-
determination for Indians. A decision affirming the govern-
ment's seizure of the fossil, would . . . rob [Indians] of the
respect they are owed as individuals w h o can contract with
respect to their own personal property.
In an o d d way, Peter Larson, or at least his lawyer, had become
Othniel C. Marsh—pleading the case of the Indians in return for the
rights to a fossil.
Judge Battey issued his opinion on February 3, 1993. "The case has
had a somewhat convoluted and checkered past," he began. After
I S A D I N O S A U R " L A N D " ?
1 1 7
reviewing the material facts on which the government and the institute
agreed, he noted: "The ultimate issue is whether [the institute] obtained
ownership to the fossil while the land from which it was excavated was
held by the United States in its trust capacity."
Ownership? Wasn't the ultimate issue merely w h o had the superior
possessory interest? No, said the judge. "A p e r m a n e n t possessory right
to the fossil is subsumed within the context of ownership."
Judge Battey refused to accept Duffy's public policy argument that
Williams could ignore the relevant statutes solely because he was a com-
petent Native American. As a result the fate of Sue would rest on the court-
room version of the old parlor r o o m game Animal, Vegetable, or Mineral.
Under the heading, "Was the Fossil an Interest in Land?" Judge
Battey wrote: "The court has found no case authority specifically hold-
ing that a paleontological fossil such as the fossil 'Sue' e m b e d d e d in the
ground is an 'interest in land.'" Therefore, to address the issue of
whether Sue was real property or personal property, the judge had
turned to the "helpful" definitions found in the South Dakota statutes:
Real a n d personal p r o p e r t y distinguished. Real or immovable
property consists of: (1) Land; (2) That which is affixed to land;
(3) That which is incidental or a p p u r t e n a n t to land; (4) That
which is immovable by law. Every kind of property that is not
real is personal.
Land as solid material of earth. Land is the solid material of
earth, whatever may be the ingredients of which it composed,
whether soil, rock, or other substance. [This definition had
been quoted by the government in its brief.]
Citing no other authority than these definitions and offering no
other analysis or explanation, the judge wrote: "The court finds that the
embedded fossil was an interest in land as defined by these provisions
and therefore subject to the requirements of [the federal statutes]."
Having m a d e this determination, his final decision was inevitable:
Maurice Williams did not make application for consent to the
removal of the e m b e d d e d fossil. [The institute] was equally
1 1 8 TYRANNOSAURUS S U E
responsible to insure that consent was obtained in compliance
with federal law. Without such consent, the attempted sale of
the fossil "Sue" e m b e d d e d within the land is null and void. [The
institute] obtained no legal right, title, or interest in the fossil as
severed since the severance itself was contrary to law.
It would have been a relatively simple matter to have applied
for th
e removal of the alienation restraint. Had there been such
an application and secretarial approval, all these m o n t h s of con-
tention could have been avoided. [The institute] must assume
m u c h of the fault caused by the failure to conform their conduct
to the federal laws and regulations. [It] should have investigated
the status of the land involved. They ran the risk of this unlaw-
ful taking of the fossil from Indian land by not having done so.
"Judge Rules T. rex Not Institute's," shouted the front-page headline
in the next day's Journal. "Judge Wrecks Plans for T. rex" said the
Minneapolis Star Tribune. "Dinosaur Fossil Belongs Not Just to the Ages
but to the Government," observed The New York Times.
T h e Larsons, unaware that the judge's ruling was imminent, were on
their way to a gem and mineral show in Tucson, Arizona. "We were in
Truth or Consequences, New Mexico, of all places, when we got the
news," Peter recalls. It was official now: After thousands of m a n hours of
work and an estimated $209,000 in out-of-pocket expenses (not to
m e n t i o n m o r e than $100,000 in attorneys' fees), they had nothing.
Duffy spoke for himself and the institute. "I'm very, very disappointed,"
he told the press. "We will appeal immediately."
Schieffer also spoke to the media. "Notwithstanding all the media
hype, this is a pretty clear-cut issue. I just don't see how the court could
have ruled differently."
The judge's opinion was clear-cut on o n e issue: The institute did
not own Sue. But Battey had not stated w h o did ultimately own the fos-
sil. In addition to the government, Williams and the Cheyenne River
Sioux were still claiming Sue. In his post-opinion talk with the press.
Duffy opined that, unless the institute won its appeal, ownership would
revert to Williams because the judge had declared the sale null and void.
He added that Williams would have to pay back the $5000 the institute
had paid for Sue.
I S A D I N O S A U R " L A N D " ?
1 1 9
Schieffer wasn't so sure that Williams owned Sue. "This was an area
where the federal government had internal inconsistencies. You could
have gone any one of three ways," he says. Various laws supported giv-
ing Sue to Williams, the tribe, a n d the federal government—which, as a
sort of trustee of antiquities for the American people, would make it