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

by Steve Fiffer

J U R A S S I C F A R C E 1 2 7

  mals stand before me, but the countries which they inhabited rise

  for me through the mist of the ages.

  Charles H. Sternberg said he was only answering for himself, but his

  lyrical reflection might just as well have been written by Peter Larson. In

  fact, Sternberg was one of Larson's heroes. The two shared m o r e than a

  desire to work independently a n d think imaginatively. Sternberg also

  had experienced the loss of a great find.

  While collecting in Alberta for the British M u s e u m in June 1916,

  Sternberg and his sons had found three duck-billed dinosaurs. Two of

  the specimens were almost complete. After four m o n t h s of excavation,

  Sternberg loaded the two extraordinary fossils o n t o the E n g l a n d - b o u n d

  SS Mount Temple. T h e ship never m a d e it across the Atlantic. Torpedoed

  by the Germans, it sank to the ocean floor, a casualty of World War I.

  Sternberg's heart sank with the vessel: "The British M u s e u m could have

  m o u n t e d these two lords of the ancient bayou in that great storehouse

  of treasures, m o r e rare than gold or silver, to be the heritage of the ages

  to come."

  There was no indication that Sue would soon be m o u n t e d for the

  coming ages. Although Judge Battey quickly denied Duffy's m o t i o n for

  a rehearing in his court, the Eighth Circuit was obliged to hear the insti-

  tute's appeal of the decision denying it ownership. This appellate

  process was certain to take m o n t h s , if not years. The parties needed time

  to write their briefs and their replies to each others briefs. Oral argu-

  ments before the court would eventually follow. W h e n the Eighth

  Circuit finally did render an opinion, the losing party might appeal to

  the U.S. Supreme Court. Conceivably one of the courts might order

  Judge Battey to hold a full-fledged trial to determine ownership.

  Following Battey's February 3 decision, Schieffer had asked the

  Clinton administration to determine w h o owned Sue. South Dakota

  Governor George Mickelson, fearful that Sue might end up outside his

  state, had also asked Bruce Babbitt, the new secretary of the U.S.

  Department of the Interior, to review the matter. The administration

  might rule before the Eighth Circuit issued an opinion. But until the

  judicial branch was finally d o n e with the case—whenever that might

  be—enforcement of any executive branch decision would, most likely,

  wait.

  1 2 8 TYRANNOSAURUS S U E

  Schieffer would not see the case to its conclusion. In March, Senator

  Daschle a n n o u n c e d that he had nominated Karen Schreier, an attorney

  from Sioux Falls, to replace the acting U.S. attorney. Senate confirma-

  tion was required, but Daschle suggested that Schreier might assume the

  office in an "interim" capacity, subject to confirmation at a later date.

  Reached by the Journal after her n o m i n a t i o n , Schreier appeared to

  be o n e of the few people in South Dakota w h o refused to answer: W h o

  owns Sue? "I would have to look at the case, talk with the attorneys that

  have been handling the matter before I could make any decision," she

  told the newspaper.

  Duffy's response to news of the a p p o i n t m e n t was injudicious. "It's

  hard to say at this point h o w things will play out, but, God only knows,

  nothing could be worse for my clients than Kevin Schieffer," said the

  institute attorney. "If Tom [Daschle] had a n n o u n c e d that he was

  appointing Idi Amin, I would be dancing a jig. Unlike Schieffer, she

  [Schreier] is actually a lawyer a n d has s o m e legal experience."

  Of course, Schieffer did have a law degree and, for better or worse,

  had bested Duffy and his law firm at every t u r n . More important, until

  he left the post, Schieffer was still in charge of the investigation that

  could result in the indictment and i m p r i s o n m e n t of Duffy's clients.

  C o m p a r i n g the m a n w h o still had the most influence with the grand

  j u r y weighing the Larsons' fate to Idi Amin seems not only impolite but

  impolitic.

  And "unprofessional," according to Schieffer. "If another attorney

  wants to make unprofessional c o m m e n t s , then that's their prerogative,"

  he responded. "But I'm not going to . . . wallow in the m u d on a profes-

  sional level, and I'm not going to c o m m e n t on the specifics of any

  cases."

  W h e n asked if criminal charges would be filed, Schieffer didn't wal-

  low. Still, he couldn't resist returning Duffy's fire. "Theoretically, I'm not

  supposed to be in the business of confirming that there is a case," he

  said. "The only reason you guys [the press] k n o w there is a case or all

  this concern for reputation . . . is because those folks [the institute] have

  been sending press releases to you right and left."

  A few days after the Larsons' lawyer insulted Schieffer, o n e of their

  s u p p o r t e r s a n n o u n c e d plans to arrest the U.S. attorney . . . a n d

  Assistant U.S. Attorney David Zuercher . . . a n d FBI Special Agent

  J U R A S S I C F A R C E 1 2 9

  William Asbury . . . a n d Judge Battey. Travis O p d y k e was fed up with

  the investigation. He felt the g o v e r n m e n t h a d harassed his wife

  Marion Zenker, the institute's administrative assistant, w h e n she

  appeared before the grand jury. Zenker h a d already incurred $8000 in

  legal fees.

  Opdyke, a former deputy and jailer t u r n e d freelance writer, had

  tried to remove the prosecutors from their posts through conventional

  channels by forming the G o v e r n m e n t Accountability G r o u p a n d peti-

  tioning the Justice D e p a r t m e n t a n d President Clinton. Having received

  no satisfaction from Washington, D.C., he was n o w ready to take mat-

  ters into his own hands by arresting the four offenders. He emphasized

  that he would not be a r m e d and would not use force in making the

  arrests. He urged Schieffer, Zuercher, Asbury, and Battey to t u r n t h e m -

  selves over to a magistrate "of their o w n accord."

  Two days later Opdyke delivered a "notice of intent to a p p r e h e n d "

  and a "bill of particulars" to Assistant U.S. Attorney Bob Mandel at the

  federal building in Rapid City. After Mandel convinced h i m that he

  would be "ill advised" to arrest a federal judge, Opdyke dropped Battey

  from his list a n d said he would work to impeach the judge. He gave the

  other three m e n 24 h o u r s to turn themselves in before he arrested them.

  Contacted by the Journal, Larson said that he understood Opdyke's and

  Zenker's frustration but did not support Opdyke's latest plan. "These

  tactics do nothing to help o u r case," he said. Mandel told the Journal

  that the d o c u m e n t s had no legal significance. His a r g u m e n t was m o o t .

  Opdyke never tried to make the arrests.

  Had Opdyke k n o w n that, on March 18, Timothy S. Elliott, the acting

  solicitor of the U.S. Department of the Interior, had issued an opinion

  concerning the ownership of Sue, he might have tried to arrest him, too.

  The opinion, contained in a letter from Elliott to Governor Mickelson


  was not m a d e public until April 7.

  W h o owns Sue? Maurice Williams, said the Interior D e p a r t m e n t .

  Elliott's logic was simple. Williams had put his land in trust with the

  United States and couldn't sell or convey an interest in it without the

  Interior Department's consent. Judge Battey had ruled that the institute

  never received title to Sue because the Interior D e p a r t m e n t never

  approved the alleged transaction with Williams. Therefore, the land/fos-

  sil continued to be held in trust for Williams by the United States.

  1 3 0 TYRANNOSAURUS S U E

  Elliott went on to discuss the implications of this judgment: "If the

  Indian landowner should decide to transfer ownership of the fossil, the

  proposed transfer would require approval by the Interior Department

  in its capacity as trustee. T h e sole purpose of the department's reviews,

  however, will be to ensure that the transaction is in the interest of the

  Indian landowner [Williams]."

  Elliott did not m e n t i o n that the Antiquities Act or any other federal

  statute might limit Williams's ability to transfer ownership. The depart-

  m e n t appeared to be concerned only that a transfer was in the rancher's

  interest—not the interest of the government or, for that matter the

  Cheyenne River Sioux. Presumably, Williams could sell Sue to w h o m -

  ever he pleased.

  The press immediately sought reaction to Elliott's letter from the

  ubiquitous quartet of talking heads.

  Schieffer chose not to respond. Two days later he announced that he

  was resigning immediately to enter private practice in Sioux Falls. On leav-

  ing, he said that he did not envy the "political and other pressure" his suc-

  cessor would face in dealing with the criminal investigation of the institute.

  Years later, Schieffer was willing to share his thoughts. Awarding cus-

  tody to Williams was, he said, "the least desirable" option. "I had gone

  a r o u n d with the D e p a r t m e n t of the Interior on h o w it should

  be handled to prevent that kind of conclusion." He added that, at least in

  the court of public opinion, "The tribe was screwed. They had a claim.

  This was reservation land within their jurisdiction. Their rights from a

  civil action standpoint were not [understood]. The tribal chief tried to

  do the right thing. This was not about m o n e y but about sovereignty."

  Despite his disappointment in the Interior Department's decision,

  Schieffer expressed a sort of grudging admiration for Williams's savvy.

  "The institute a n d Williams were b o t h trying to do the same to the

  other. W h o really got bamboozled?" Schieffer suggests it was the insti-

  tute because, from the beginning, "Williams knew m u c h m o r e about

  Indian trust law than he let on." Had Williams suckered the Larsons

  from day one, taking their m o n e y w h e n he knew all along that trust law

  prevented h i m from selling the bones? If so, he is not talking.

  Williams was happy to respond to the D e p a r t m e n t of the Interior's

  decision. "It's real refreshing that we have laws," he said of the ruling that

  might eventually bring h i m financial reward.

  J U R A S S I C F A R C E 1 3 1

  Duffy continued his offensive offensive. "It's shocking to me that

  Kevin Schieffer has spent millions of dollars to allow Maurice Williams

  to stick a priceless paleontological object in a pole barn outside Eagle

  Butte, if he chooses to do so," he said.

  Indian Country Today, "America's Indian Newspaper," quickly

  responded to these remarks. "Pat Duffy . . . is probably the poorest loser

  in legal history," the paper editorialized. "His latest rantings have even

  besmirched the sovereign Cheyenne River Sioux tribe Technically and

  historically, the T. rex bones belong to the [tribe]. If they work out an

  agreement with Mr. Williams it is of no concern—and certainly no busi-

  ness—of Mr. Duffy. To use such an archaic, paternalistic attitude toward

  the Lakota people of the Cheyenne River Reservation is appalling."

  Duffy didn't back down. He responded to the editorial with a letter

  that the paper published. "My comment was aimed at a policy which has

  squandered millions and used the criminal law to seize a priceless paleon-

  tological relic for an individual who actually sold it (not, as you represent,

  for a tribe or an entire people)," he explained. "The personal comments

  about me, however, stretch facts . . . to find racism in my remarks, which

  only tangentially concerned a rancher who happens to be of Indian

  descent. My experience has been that those who stretch to reach overtly

  racist conclusions are often reacting from a racist perspective themselves."

  Indian Country Today had suggested that the Cheyenne River Sioux

  owned Sue. The tribe responded to the Interior Department's letter by

  suing the institute, the Larsons, Bob Farrar, and Maurice Williams in

  tribal court. The suit sought possession of Sue and m o n e t a r y damages

  for other fossils illegally removed from the reservation and no longer in

  the possession of the defendants.

  On what grounds was the tribe claiming ownership? T h e suit

  alleged that Williams violated a tribal ordinance by failing to obtain a

  $100 tribal business license before allowing the fossil hunters o n t o his

  property or notifying the tribe of the hunters' intentions.

  On what g r o u n d s was giving Sue to the tribe the proper remedy to

  what appeared to be a m i n o r violation? A second tribal ordinance,

  enacted more than two years after Sue's discovery, sanctioned forfeiture

  to the tribe of "all property of any description . . . all moneys, negotiable

  instruments, securities or other things of value" used in violation of any

  tribal law. A T. rex was an "other thing of value."

  1 3 2 TYRANNOSAURUS S U E

  For once Duffy and Williams agreed on something. Each said that

  the suit was ridiculous. Duffy accused the tribe of declaring war on one

  of its own m e m b e r s by challenging the ownership of property held in

  trust by the federal government. He also told the Timber Lake Topic, "If

  this case would stand up, it would set economic development back 100

  years." Linking the license to forfeiture "will scare the hell out of any-

  b o d y trying to do business in Indian country," he explained.

  Williams said that if he needed a license to sell a fossil, then people

  picking berries, digging turnips, or selling eggs needed licenses, too.

  "They're [the tribe] r u n n i n g plain wild. This is going to progress into a

  hell of a lawsuit," he said. He added that he would rely on the federal

  government to protect his rights. Such protection appeared forthcom-

  ing. Bob Walker, a spokesman for the D e p a r t m e n t of the Interior, told

  the Journal that the d e p a r t m e n t still believed Sue belonged to Williams.

  "I would think that in any subsequent legal action we would seek to

  intervene to uphold that principle."

  Duffy and his law partner Mark Marshall questioned that principle

  in their appeal to the Eighth Circuit—the court that had the power to

  reverse Judge Battey's decision awarding ownership of Sue t
o the United

  States as Williams's trustee. In their appellate brief, filed just a few days

  after the tribal court action, Duffy and Marshall argued that Battey had

  erred in concluding that the government, as Williams' trustee, owned

  Sue because she was land or an interest in land. A partially embedded

  fossil is personal property, not real property, the institute's lawyers again

  maintained.

  NATURAL HISTORY FESTIVAL

  SCHEDULE OF EVENTS

  SUNDAY, MAY 16

  Bike-A-Thon 11:00 Football Field

  Rock Hound Roundup 11:30 Black Hills Institute

  Girl Scout Cookie Sale All day Around town

  Open House 11:30 B. H. Institute

  Music 11:30 Alpine Inn

  Book Signing & Sale 12:00 Oriana's

  J U R A S S I C F A R C E 1 3 3

  Presentation 12:00 B. H. Institute

  Art Print Unveiling 1:00 School Gym

  Auction 1:00 School Gym

  Bus Rides to Site 3:00 School Gym

  Site Dedication 3:45 Museum Site

  PotLuck Dinner 5:00 Senior Center

  The residents of Hill City had h o p e d that the discovery of Sue

  would reinvigorate their depressed economy. But instead of attracting

  crowds of tourists, the T. rex had attracted crowds of FBI agents and

  National Guardsmen. As the first anniversary of the seizure approached,

  only the lawyers had reaped economic benefit. However, for one day,

  anyway, the institute, the Larsons, a n d the entire town would forget the

  disappointments of the last 12 m o n t h s , including the layoff of 44 mill

  workers and loggers by Continental Lumber Company, the town's

  largest employer.

  Instead of gathering in district court or tribal court or before the

  Eighth Circuit or in the grand jury r o o m , everyone would meet on the

  football field or in the school gym or the senior center or at the site of

  the new Black Hills Museum of Natural History.

  Despite the disappointments of the last year, the town h a d decided

  that a celebration was in order. Mayor D r u e Vitter had declared May 16

  Hill City's First Annual Natural History Day Festival. T h e institute

  wholeheartedly endorsed the idea. "This could have been a dark day for

  us," said Larson, "but instead, on the anniversary of Sue's seizure, we

  want to affirm that we are definitely alive and kicking."

  The seizure had produced o n e unexpected dividend for Larson. In