by Steve Fiffer
appointed guardians of the faith; they want to make fossils off limits to
anyone without a doctorate. It's especially tragic because it threatens
good amateurs—who've d o n e m o r e for the science than anyone."
In a 1998 interview, Dr. Louis Jacobs, a professor of geological sci-
ences at S o u t h e r n Methodist University a n d president of SVP,
unashamedly admitted that paleontologists at not-for-profit institutions
should feel superior to commercial hunters. "They [commercial hunters]
don't play any role in science I think you could find any graduate stu-
dent and they would have greater interest, greater dedication, greater
desire to build a better world [than do commercial hunters]." These stu-
dents and their professors are "dedicated to doing something good" as
opposed to making money, Jacobs insisted. He seemed unimpressed with
the argument that those at universities and m u s e u m s might be moved by
factors other than altruism, such as the opportunity for financial gain or
professional advancement and recognition.
Larson bristles at Jacobs's blanket c o n d e m n a t i o n , then offers his
own generalization about his critics. "There's always a small segment of
any profession, a portion of the scientific c o m m u n i t y for whatever rea-
son, that has a distrust. It's a feeling that some people have of inade-
quacy, envy—although they don't see it as that. They have a frustration
at not really making any significant advances of their own. T h e n they
see someone with no [formal] training or specific skills [like a Sue
Hendrickson]. They feel they put in the early effort, they had the
schooling, and they feel rewards should c o m e to them.
"But there is m o r e to it than schooling. You can't just stand at the
foot of a m o u n t a i n . You have to be willing to climb the m o u n t a i n . A lot
of armchair paleontologists have never grasped the fact that you have to
work to discover something. If you want to find something in the field,
you have to go out into the field. You can make wonderful discoveries
opening m u s e u m drawers, but it's not the same thing."
Larson acknowledges that there isn't a lot of government m o n e y for
paleontological research. "That is frustrating. But m a n y of these [acad-
emics] earn comfortable livings. They could spend s o m e of their o w n
m o n e y to go out into the field. They have the t i m e — b u t they don't do
that."
As the war of words over the pros a n d cons of commercial collect-
ing intensified, the battle for t e m p o r a r y custody of Sue moved toward a
8 6
TYRANNOSAURUS S U E
resolution. Almost two years to the day that Hendrickson had first spied
Sue, the Eighth Circuit agreed to hear the institute's appeal of Judge
Battey's decision to keep the bones at the School of Mines until the
question of ownership was decided. T h e court would hear oral argu-
ments from the parties on October 14 in St. Paul.
At the same time, the institute's original suit to determine owner-
ship (not t e m p o r a r y custody) took an interesting twist. On July 31, the
institute a m e n d e d its original complaint that had sought to quiet title.
In this new complaint, the institute a b a n d o n e d the quiet title theory and
did not request that the court determine ownership at all. Instead, the
a m e n d e d complaint raised a single issue: whether the institute's claim to
Sue, based on its purchase from Maurice Williams, was superior to the
government's need for the bones as evidence in a criminal action the
government had yet to file.
Why would the institute a b a n d o n its claim that it owned Sue and
argue n o w only that it had a superior possessory claim? Quite simply,
the lawyers n o w felt that this was the best way to regain the bones. Judge
Magill's June 26 opinion had, after all, stated that the "rationale for the
seizure [was] inadequate." The opinion had also seemed to suggest that
the government had to prove its need for the dinosaur, or give her back
until the ownership question was finally settled.
T h e institute lawyers felt that if they could get Sue back temporari-
ly u n d e r this theory, they would never have to give her up again. Their
reasoning went like this: Both the tribe and the government were claim-
ing ownership. T h e tribe was threatening to bring its own action for the
T. rex in tribal court, where it might receive a m o r e favorable hearing.
But if it did so, it would have to n a m e the U.S. government as a defen-
dant. Invoking the defense of "sovereign i m m u n i t y " ( i m m u n i t y from
the jurisdiction of the court by virtue of its status as a government), the
United States would never c o m e to court, a n d the tribe's ownership
claim could not be adjudicated. Similarly, if the United States sued for
title to Sue in federal court, the tribe could also invoke sovereign i m m u -
nity (or so Judge Magill suggested). And with the tribe absent, the fed-
eral court could not adjudicate its claim. Either the tribe or the govern-
m e n t could waive the defense of sovereign immunity, but the institute
lawyers did not think they would. And if they didn't, then Sue would
remain at the institute permanently by default.
T A K I N G A H O W I T Z E R TO A F L Y 87
Whether or not the bones were needed by the government, the
criminal investigation was proceeding . . . and expanding. C o u r t docu-
ments filed by Schieffer alleged that the case involved reservation land
and "other public lands" in South Dakota. The acting U.S. attorney also
said that he was investigating "ongoing, multistate criminal activity."
The government was obviously looking into m o r e than the collection of
Sue. No d o u b t the second subpoena requesting virtually all of the insti-
tute's business records was aimed at getting information about n u m e r -
ous other dealings.
By the end of August, Larson was beginning to learn which dealings.
The government had subpoenaed d o c u m e n t s from N i p p o n Express, an
air freight c o m p a n y in Minneapolis. N i p p o n had once shipped a repli-
ca of a dinosaur back from Japan to the institute.
The names of grand jury witnesses were also surfacing. Subpoenaed
by Schieffer, Clayton Ray had testified for two days. Why? D u r i n g the
raid, Larson had casually mentioned to an FBI agent that a friend from
the Smithsonian (Ray) had called a few days earlier about a r u m o r that
the bureau wanted to k n o w how to move a dinosaur. Larson r e m e m -
bered that the agent had told h i m that the call may have constituted
obstruction of justice.
Schieffer also subpoenaed Eddie Cole, a Utah fossil h u n t e r with
w h o m the Larsons had d o n e business for 15 years. Cole told the Jour-
nal's Harlan that Ranger Robins and FBI agent Asbury had visited him
at his h o m e . They were interested in a prehistoric turtle he had sold
Larson in 1991. According to Cole, the pair insisted that he had taken
the turtle from an excavated hole on Bureau of Land M a n a g e m e n t
(B
LM) grasslands. He said that the investigators knew that he and his
family had camped near the hole; they even knew he had left 21 Merit
cigarette butts there. They had videotapes and p h o t o g r a p h s of the site
as well.
Cole denied the allegations. He said he had found the turtle on pri-
vate land and bought it from a rancher. He had then sold it to Peter
Larson, who helped with the excavation.
Cole was also questioned about a partial skull that he had sold the
institute. He admitted that it may have c o m e from state or federal land,
but insisted he hadn't revealed that to Larson because "he wouldn't have
bought it." Questioned by Harlan, Larson confirmed this. He insisted
8 8 TYRANNOSAURUS S U E
that he never knowingly b o u g h t specimens collected on public land, but
acknowledged that he didn't always personally check the location. "We
buy from people we trust," he explained.
T h e skull in question was that of a mosasaur.
Cole claimed that Robins and Draper had harassed and threatened
h i m d u r i n g their initial interrogation. Larson also told Harlan that he
feared that the government was subjecting m a n y of his clients and sup-
pliers to the same treatment. Duffy added: "[The government] is send-
ing word out planet-wide to the paleontology c o m m u n i t y that my
clients are u n d e r investigation." He accused Schieffer of conducting a
"scorched earth" investigation. "It's a frightening glimpse of justice
u n d e r the New Order," he said.
On October 10, scores of institute supporters gathered at the Heart
of the Hills Convenience Store Exxon & Super 8 Motel parking lot next
to the institute for the "First Annual Sue Freedom Run, Walk, Hop, Skip,
Jump, or Crawl." For a $10 fee that went to the Free Sue fund, partici-
pants received a T. rex T-shirt, post-race refreshments, a n d the chance to
win prizes donated by m o r e than 25 local businesses, including Hill City
Jewelers, Jake's Casino at the Midnight Spa, Frosty's Drive-in, and
Andrea's Chain Saw Sales and Service.
Four days later, institute lawyers gathered at the federal building in
St. Paul for oral arguments on their appeal of Judge Battey's decision to
let Sue remain at the School of Mines. They knew that this proceeding
might be their best chance to win the T. rex her freedom. In June, Judge
Magill's three-judge panel had seemed considerably m o r e sympathetic
than Judge Battey had ever been.
T h e institute and the government had previously submitted lengthy
briefs with n u m e r o u s cases supporting their respective positions. The
court also had the 600-page record of the July hearing presided over by
Battey, including the testimony of each side's experts on pyrite disease
and dinosaur storage. Duffy felt confident that the briefs and the record
favored his side, a n d he m a d e the legal arguments as any lawyer would.
Then he told the court h o w he really thought the case should be decid-
ed: "It comes d o w n to this," he said, pausing for effect before continu-
ing. " W h o loves this dinosaur more?"
5
W H O O W N S S U E ?
"Two million, three hundred thousand," Redden said. Stan
Adelstein's paddle and Peter Larson's heart sank at the same
time. "I guess we lost her," Larson sighed.
No moment of silence was observed. The bidding con-
tinued. "Two million seven hundred thousand." Larson
couldn't believe the numbers.
Few newspapers outside South Dakota covered Sue Hendrickson's dis-
covery of the greatest of the great dinosaurs. In contrast, the FBI raid on
the institute was featured on several network news shows and garnered
front-page headlines across the country a n d a r o u n d the world. The
seizure, not the science, was the story. Few reports focused on Peter
Larson's findings about the a n a t o m y and social habits of T. rex. Larson
was m u c h m o r e compelling as a David fighting the Goliath of govern-
ment than he was as a paleontologist.
This focus on personality rather than papers is hardly new. In April
1875, the National Academy of Sciences met in Washington, D.C. At the
meeting, Yale's Othniel C. M a r s h — t h e second person in history to be
named a professor of paleontology, the first in America—presented
important new findings on the development of the brain. The popular
press yawned.
Reporters had gone to that gathering of the country's most respect-
ed scientists looking for something quite different. The New York Tribune
8 9
9 0 TYRANNOSAURUS S U E
wrote: " H a d Prof. Cope been present we might have hoped for a battle of
bones between h i m and Prof. Marsh, and possibly for an episode that
would have served for a supplement to the m e e t i n g . . . . But everything
was decorous and slightly dull." O n e scientific theory holds that, like
clockwork, every 27 million years some m o n u m e n t a l natural catastrophe
causes mass extinction. The extinction of decorum and dullness in the
world of science occurs considerably m o r e regularly. The uncivil but
highly entertaining late twentieth-century battle of bones involving
Larson, the SVP, the federal government, and Native Americans remind-
ed m a n y w h o h u n t stories about fossil hunters of the equally contentious
but engrossing late nineteenth-century battle of bones involving Marsh,
Cope, academic societies, the federal government, and Native Americans.
Cope vs. Marsh was not a lawsuit but a feud played out in the court
of public opinion for almost 30 years. The hatred these two paleontolo-
gists felt for each other eventually eroded their images as m e n of charac-
ter. At the same time, however, the rivalry moved them to almost literally
move mountains and make many of the best fossil discoveries in history.
It apparently began with a mistake. In 1869, Cope restored the
remains of a giant reptile, the Elasmosaurus, in the M u s e u m of the
Philadelphia Academy of Natural Sciences. Marsh, w h o had previously
paid h o m a g e to their friendship by n a m i n g a new species Mosasaurus
copeanus, came to see the display. His subsequent recollection of the
events sheds insight into each man's personality:
W h e n Professor Cope showed it to me a n d explained its pecu-
liarities I noticed that the articulations of the vertebrae were
reversed a n d suggested to h i m gently that he had the wrong end
foremost. His indignation was great, a n d he asserted in strong
language that he had studied the animal for m a n y m o n t h s and
ought to at least k n o w o n e end from the other.
It seems he did not, for Professor (Joseph) Leidy in his quiet
way took the last vertebra of the tail, as Cope had placed it, and
found it to be the atlas and axis, with the occipital condyle of the
skull in position. This single observation of America's most dis-
tinguished comparative anatomist, w h o m Cope has wronged
grievously in n a m e and fame, was a demonstration that could
not be questioned, and when I informed Professor Cope of it his
> W H O O W N S S U E ? 9 1
wounded vanity received a shock from which it has never recov-
ered, and he has since been my bitter enemy. Professor Cope had
actually placed the head on the end of the tail in all his restora-
tions, but now his new order was not only extinct, but extin-
guished.
In his comprehensive biography of Marsh and Cope, The Dinosaur
Hunters, Robert Plate paints pictures of two very different personalities
with the very same goal. T h e methodical Marsh a n d the i m p e t u o u s
Cope were each consumed with being the most famous, most highly
regarded scientist of the day. Each knew that the other stood in the way
of reaching that goal.
Cope took the early lead. Born outside Philadelphia in 1840, he was
put on the fast track by his father, a devout Quaker w h o had retired
comfortably from an inherited business. At 6, young Edwin wrote his
g r a n d m o t h e r an enthusiastic letter about a visit to a m u s e u m where "I
saw a M a m m o t h a n d Hydrarchas, does thee k n o w what that is? It is a
great skeleton of a serpent." At 8, he was filling his sketchbook with scale
drawings and precise descriptions of everything from toucans to a fos-
sil skeleton of Ichthyosaurus. Although he received the highest marks for
his work at school, his conduct was deemed "not quite satisfactory."
Plate describes him as "a born fighter."
At age 18, Cope submitted his first paper to the Academy of Natural
Sciences of Philadelphia. Naturally, the older scholars received it skepti-
cally. But on reading, " O n the Primary Divisions of the Salamandrae
with Descriptions of a New Species," these scientists were so impressed
that they published it in the spring 1859 Proceedings of the academy.
Marsh was not nearly so precocious. Born in 1831, in the northwest
corner of New York State, he grew up in modest circumstances. His
father had turned to farming after his successful shoe manufacturing
business toppled in the depression of 1837. Marsh did d e m o n s t r a t e an
early interest in rocks and fossils, often forgoing his chores to go col-
lecting with a neighbor. But at age 20, he was contemplating a career as
a carpenter, not a scientist.
Before forsaking his collecting h a m m e r for a carpenter's hammer,
Marsh inherited $1200. His relatives, concerned about his future,
