by Steve Fiffer
have filed a civil lawsuit to gain possession of her from the institute?
The fossils that were listed in the indictment included several
Triceratops, duck-bills, mosasaurs, whales, turtles, a m m o n i t e , crinoids,
and catfish. They had allegedly been collected illegally from p u b l i c —
federal, tribal, and state—and private lands in South Dakota, Wyoming,
Montana, and Nebraska. Some of these fossils had been sold to the
Smithsonian Institution and the Field Museum. Such illegal activity
dated back to 1983, the indictment charged. A few examples:
In 1984 and 1985, "principals, agents, or employees" of the insti-
tute allegedly went on U.S. Forest Service land—Gallatin National
Forest—in Montana, and collected fossil remains of crinoids.
In 1989, the Larson brothers allegedly went on Standing Rock
Sioux Reservation land near Corson, South Dakota, and col-
lected fossil remains of a Triceratops.
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TYRANNOSAURUS S U E
In 1983, "employees or agents" of the institute allegedly went on
private lands near Lantry, South Dakota, and obtained the fos-
sil remains of various a m m o n i t e s without the permission of the
owner.
The Larsons had long maintained that they never knowingly engaged
in the illegal collection, purchase, or sale of fossils; like Harvard's Dr.
Jenkins, they didn't know if they were collecting on federal, state, or trib-
al land subject to restrictions. The government didn't believe this. The
indictment charged that the defendants were adept at reading maps. As
part of the conspiracy, however, the defendants and their coconspirators
"would feign ignorance of property boundaries and property ownership
in places they were illegally collecting fossils." In June 1989, for example,
Peter Larson and Sue Hendrickson allegedly met with an Amoco employ-
ee near Wamsutter, Wyoming. This employee showed them maps that
identified the location of BLM and private lands in the area. "Thereafter,"
the government alleged, "Peter Larson and Sue Hendrickson collected
fossil remains, including a turtle from lands that were clearly marked as
Bureau of Land Management lands on the m a p shown to them."
T h e conspiracy was alleged to have extended beyond fossils person-
ally collected by institute personnel: "The defendants and coconspira-
tors w h e n purchasing fossils from other collectors would deliberately
avoid gaining information regarding the location and details of illegal
collection when they knew or suspected that the fossils were illegally
collected."
T h e defendants' deviousness went beyond feigning ignorance.
According to the indictment, "when dealing with others, [the defen-
dants] would emphasize the educational and scientific benefits to be
derived from their fossil-related activities and minimize or conceal the
commercial benefit and personal economic gain to themselves." In 1988,
for example, Larson allegedly collected the remains of a mastodon,
camel, and three-toed horse from private land in Nebraska "by giving
the landowners the false impression that the items were being collected
for donation to universities and museums."
In addition to naive landowners, the defendants d u p e d the govern-
m e n t , universities, foreign corporations and m u s e u m s , according to the
government:
Y O U C A N I N D I C T A H A M S A N D W I C H
1 4 9
Item: In 1987, the institute partners had imported a baleen
whale fossil from Peru and "entered it into the commerce of the
United States." They did so by means of a "false and fraudulent
declaration [that] . . . the whale was of scientific value only a n d
no commercial value," when they well knew that the whale was
of "domestic commercial value" in excess of $10,000.
Item: In 1992 (during the U.S. attorney's investigation), a com-
pany in Okayama, Japan, that was developing a natural history
m u s e u m arranged to purchase a Triceratops skull from the insti-
tute for $125,000. O n e of the purchaser's requirements was that
the institute issue a certificate that the fossil was excavated from
private land and was, therefore, commercially tradable. T h e
institute issued such a certificate despite the fact that the fossil
was excavated from Sharkey Williams's land "held in trust by
the United States for the Cheyenne River Sioux tribe." This was
the specimen the institute was digging up on the property of
Maurice Williams's brother when Sue was found.
The exhaustive investigation of the Larsons uncovered several alleged
customs-related violations as well. Peter Larson was accused of failing to
declare $31,700 in travelers checks carried from Japan to the United States.
He was also charged with taking $15,000 in cash from Hill City to Peru
without filling out the required United States Customs forms. The institute
was also accused of knowingly undervaluing two fossil shipments to Japan.
Finally, the U.S. attorney did not forget Neal Larson's desperate, pre-
raid attempt to change the dates on boxes of fossils. This, said C o u n t
XXXVII, was obstruction of justice. Another count accused both of the
Larsons and Farrar with concealing or failing to produce records the
government had subpoenaed.
The defendants were served the indictments on November 23, but
they were not arrested. They were to be arraigned on December 15.
Duffy, w h o represented the Larsons, Farrar, Wentz, a n d the institute,
said his clients would plead not guilty. He d e m e a n e d the prosecution.
"In this country you can indict a h a m sandwich," he said.
As promised, at the appointed time the defendants pleaded not
guilty to all charges. But December 15 was not without its surprise.
1 5 0 TYRANNOSAURUS S U E
Purely by chance, on the same day the Larsons were arraigned, the
Eighth Circuit ruled on the appeal of Judge Battey's decision that had
denied the institute ownership (and possession) of Sue.
Peter Larson held his breath as he waited for Duffy to relay the
court's opinion. Christmas was only ten days away. The U.S. attorney
had already filled his stocking with fossil fuel (coal). The Eighth Circuit
could go a long way to making this a happy holiday—in spite of the
indictments—if it ruled that Sue should be h o m e for Christmas.
9
N E G O T I A T I O N S A R E
U N D E R W A Y
"Five million dollars."
Larson knew that the top paleontologists from several
museums had visited Sotheby's before the auction to observe
the condition of Sue's bones.
"Damn," he said. "They must think we did a terrific job
with her." Maybe there was still a chance.
If a dinosaur falls on the land and nobody sees it, is it still a dinosaur?
Judge Magill said the Eighth Circuit had to make the following
decision: "Whether the fossil was personal property or land before
Black Hills excavated it." As federal statutes regulated Williams's p r o p -
erty, the court looked to Congress for a definition of "land." Finding no
/> applicable definition, Magill, like Battey, turned to South Dakota p r o p -
erty law for guidance. He concluded:
We hold that the fossil was "land." . . . Sue Hendrickson found
the fossil e m b e d d e d in the land. Under South Dakota law, the
fossil was an "ingredient" comprising part of the "solid materi-
al of the earth." It was a c o m p o n e n t part of Williams's land just
like the soil, the rocks, and whatever other naturally occurring
materials make up the earth of the r a n c h . . . . That the fossil was
once a dinosaur which walked on the surface of the earth and
that part of the fossil was p r o t r u d i n g from the ground when
1 5 1
1 5 2 TYRANNOSAURUS S U E
Hendrickson discovered it are irrelevant. The salient point is
that the fossil had for millions of years been an "ingredient" of
the earth that the United States holds in trust for Williams. The
case might very well be different had s o m e o n e found the fossil
elsewhere and buried it in Williams's land or somehow inad-
vertently left it there. Here, however, a Tyrannosaurus rex died
s o m e 65 million years ago on what is n o w Indian trust land and
its fossilized remains gradually became incorporated into that
land. . . . We hold that the United States holds Sue in trust for
Williams.
"What a vicious bit of irony that this decision comes on the day they
[the Larsons] are arraigned on 39 counts," said Duffy. The institute
would appeal the decision to the United States Supreme Court, he said.
Judge Battey set the criminal trial for February 22,1994. It began on
January 10, 1995. The 13 m o n t h s following the arraignment were filled
with public recriminations, private negotiations, and motion upon
m o t i o n .
T h e institute fired the first shot. On January 6, 1994, three weeks
after the arraignment, the Larson brothers each filed motions asking
Judge Battey to recuse himself (step down) from the trial. They argued
that his c o m m e n t s d u r i n g the custody hearing m o n t h s earlier suggest-
ed that he favored the prosecution and already believed the defendants
guilty. In particular, the Larsons cited the judge's remarks that they had
probably obstructed justice.
The government fired back the very next day. Assistant U.S.
Attorney Zuercher filed a m o t i o n to disqualify Duffy from the trial.
Zuercher asserted that Duffy had a conflict of interest because earlier in
the case he represented other defendants and witnesses. Zuercher want-
ed Gary Colbath, w h o represented Sue Hendrickson, disqualified as
well. Colbath was n o w representing the institute's Terry Wentz. The
Larsons were furious. Peter Larson argued that the government was
attempting to deny h i m his Sixth A m e n d m e n t right to the attorney of
his choice. Zuercher responded that the right to choose one's own attor-
ney is not absolute.
Judge Battey refused to step d o w n a n d refused to disqualify Duffy.
Privately, s o m e of Larson's supporters were disappointed that Duffy
N E G O T I A T I O N S A R E U N D E R W A Y 1 5 3
would remain. Hendrickson a n d others thought Duffy might not be the
best lawyer for the task and that, at the very least, he needed some help
from more seasoned practitioners. They reasoned that he had enjoyed
little success to date and had alienated the government and the judge
with several public p r o n o u n c e m e n t s . Bill M a t h e r s , a friend of
Hendrickson, had found a p r o m i n e n t Washington, D C , law firm that
was apparently willing to undertake the defense pro b o n o publico ("for
the good of the public"—at no charge to the client). "There were a lot
of excellent attorneys w h o were outraged by the government's behav-
ior," says Hendrickson. She believes that famous defense lawyer Gerry
Spence might have been persuaded to help with the case if Larson had
given permission to pursue him.
But Duffy didn't seem to be interested in outside assistance, and the
intensely loyal Larson was not about to remove him. "Pat a n d I have
been in this together since the beginning," he told the Journal's Harlan.
"I think he's the only one w h o can adequately defend me."
In mid-February, Duffy went back to court—this time in connec-
tion with the civil proceedings for possession of Sue. As the Supreme
Court was u n d e r no obligation to hear an appeal and the odds of the
court overturning the Eighth Circuit were slim anyway, Duffy decided
that the time was right to get something in return for Sue. He therefore
filed a mechanic's lien on the fossil. Such liens are generally filed by
workmen w h o have not been paid for their labor on a piece of proper-
ty. The institute's lien was for $209,000—about $35 per h o u r for 5630
hours spent finding, excavating, and preparing Sue. This case was even-
tually dismissed. So, too, was the Cheyenne River Sioux's suit for the T.
rex in tribal court, bringing Williams o n e step closer to gaining Sue.
As the s u m m e r wore on, so, too, did pretrial m o t i o n s in the crimi-
nal case. "Feds Want Fossil Trial in Aberdeen," a n n o u n c e d the Journal on
July 27. "Due to both the volume a n d nature of the publicity in this case,
the United States argues that it would be difficult, if not impossible, to
secure an unbiased panel of jurors in the Western Division," said
Zuercher and Mandel. The Western Division included Rapid City, h o m e
of the Journal, which by the prosecutors' count had r u n at least 135 news
stories about the case in the 26 m o n t h s since the seizure. An exhibit
accompanying the m o t i o n included editorials and letters to the editor
that criticized the prosecutors' handling of the case.
1 5 4
TYRANNOSAURUS S U E
Duffy saw the motion as another "misuse of prosecutorial power." The
prosecution had estimated that the trial could take as long as three
months. A move to Aberdeen, 300 miles to the northeast, would add
$100,000 to the cost of the defense, said Larson's lawyer. Among other
things, the move would necessitate getting motel rooms for half a dozen
attorneys, an equal n u m b e r of support staff, and the defendants. "It would
stretch our supply lines to the breaking point," Duffy told the Journal.
"The prospect of living out of a motel in Aberdeen for ten weeks
didn't exactly excite me," Assistant U.S. Attorney Mandel would later say.
"It's not Honolulu." But, Mandel explained, the government truly feared
that it would have a difficult time finding jurors w h o hadn't been influ-
enced by the local press's coverage of the story. He noted that his office
rarely spoke to Journal reporters and those reporters rarely called his
office; as a result Duffy was often able to "spin" his side of the story with-
out rebuttal.
In the days that followed the filing, the prosecutors may have want-
ed to add two m o r e Journal pieces to their exhibit. " O p e n - m i n d e d peo-
ple in the Rapid City area should be insulted," began an editorial in the
paper titled "Trial Should Stay Here."
T h e editorial noted that many of
the 135 articles
focused primarily on the government's confiscation of . . .
Sue—even t h o u g h n o n e of the charges involve Sue. The impli-
cation is that the Journal's coverage of the case has already con-
vinced most people here that the accused are innocent. This is
a d u b i o u s claim But even if it were true that potential jurors
are already presuming the defendants' innocence, what's wrong
with that? Isn't that what juries are supposed to do, to presume
innocence a n d be convinced of guilt?
In a h u m o r o u s c o l u m n a few days later, Harlan observed, "Rapid
City's soft on crime reputation is h u r t i n g o u r economy. For evidence
look no further than that . . . prosecutors asked the judge to move the
t r i a l . . . to Aberdeen." He continued:
Normally, this is the p a r a g r a p h where I would explain what
the . . . trial is about, b u t apparently I don't have to do that.
N E G O T I A T I O N S A R E U N D E R W A Y 1 5 5
T h e feds say the fossil case has received so m u c h publicity that
everyone in Rapid City n o t only knows a b o u t it, they already
have an opinion a b o u t i t — n a m e l y that the defendants are n o t
guilty.. . .
Which brings me back to m o n e y and why Rapid City needs
to change its permissive image.
Justice D e p a r t m e n t officials won't say how m u c h they have
already spent in their three-year prosecution . . . but a total well
into seven figures wouldn't surprise m e . After all, investigators
have been to Japan, South America, a n d Europe.
The trial itself... could last for months. It could involve wit-
nesses from all over the country—including high-salaried gov-
ernment witnesses on lucrative per diems. The lunch trade alone
could be worth thousands, and then there's dinner, motels, and
legal pads.
Heck, this case is the economic development equivalent of
an Airstream rally.
The economic development of Hill City remained on hold d u r i n g
this period. Some tourists visited the institute, but the lunch trade hard-
ly was worth thousands. W h e n Larson wasn't in the field, he was happy
to show these visitors Stan's bones and Sue's skull. Not her real skull,
but a bronze bust sculpted 1 : 8 scale by Joe T i p p m a n , an artist from