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

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

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  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."

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  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

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  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

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  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

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  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

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  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.

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  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