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SUE - the legal morass (fwd)

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From [email protected] Mon May 23 14:11:02 1994
Date: Mon, 23 May 1994 15:10:55 -0400
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Subject: SUE - the legal morass
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The Legal Battle for SUE the Tyrannosaurus rex

Disclaimer: I'm not a lawyer and don't claim to have a full
understanding of some of these legal issues, so what follows
is my best try at assessing this twisted case. I welcome any
corrections and contributions from others in unravelling things
and getting at the truth.
---Background Information---

On Aug. 12, 1990, the BHIGR(Sue Hendrickson) discovered SUE on deeded 
land owned by Maurice Williams. The Williams ranch is located within 
the boundaries of the Cheyenne River Sioux reservation. A sale
of the fossil(while still in the ground) occurred between the
Maurice Williams and the BHIGR for the amount of $5000.

Williams is an enrolled member of the Cheyenne River Sioux Tribe.
He had placed much of his land into trust status with the U. S. 
government Department of the Interior, Bureau of Indian Affairs.
The legal effects of trust status are that 1) The landowner is
exempt from paying federal taxes on the land for a specified period,
and 2) The landowner cannot sell the land without the consent of the 
Dept. of the Interior.

NOTE: Although this has no legal bearing on the case at this time,
even under trust status Williams retained the mineral rights to his land.
In other words, Williams could extract gold or allow oil drilling WITHOUT
permission of the Dept. of Interior.  Everyone agrees that SUE was found 
on land in "trust status".

By September 1, 1990, SUE was at the BHIGR lab facility. Most of the 
fossil was still encased in rock matrix and the long tedious prep work
began. The BHIGR immediately went public with their spectacular find.
As word reached the Cheyenne River Sioux Tribe, they proceeded to pass 
a resolution(E-335-90CR) demanding the return of the T. rex skeleton
and requesting the assistance of the Bureau of Indian Affairs. The
U.S. Attorney at that time(not Schieffer) found no wrongdoing and
took no action.

>From the beginning, the BHIGR maintained that SUE was not for sale. In
March, 1992, the BHIGR announced the establishment of the Black Hills
Museum of Natural History in Hill City with SUE as the main attraction.
In the two months following the Black Hills Museum of Natural History
announcement, things began to hit the fan. Acting U.S. Attorney Kevin 
Schieffer had been recently appointed and said that his office was taking 
a look at the legal questions surrounding SUE, but would not to comment on 
the specifics of the investigation. Around the same time, Maurice Williams 
decides that he didn't sell SUE to the BHIGR after all. It is also revealed 
that a private fossil collector from Canada has suddenly offered Williams 
1 million dollars for the skeleton if he can get SUE back. When asked what 
he thought the $5000 check from the BHIGR was for, Williams said he didn't 
know but "maybe it might have been for mitigation". 

---The Seizure---

On May 14, 1992, over 30 federal agents and national guardsmen arrive
at the BHIGR and began the seizure of SUE. Pete Larson of the BHIGR
was quoted as saying "I knew we were in trouble when acting U.S. Attorney 
Kevin Schieffer showed up for the raid wearing television makeup". 
One Hill City resident, when asked by a TV reporter what he thought of the
raid, replied: "If this isn't a publicity stunt, I don't know what is.
There could have been a gang in this town...with a ton of cocaine and
human bodies hanging from the rafters...and they wouldn't have sent in
30 armed federal agents and the national guard..."

Sue was hauled off to be deposited in a boiler room with no temperature
or humidity controls at the South Dakota School of Mines, where she remains
to this day, unavailable for scientific study, all because of Mr. Schieffer.

So began the custody battle. The parties claiming SUE include:

-The BHIGR, who maintain that they purchased SUE in the context of a
legal business transaction with Maurice Williams. The $5000 they 
paid Williams for SUE was at that time the largest sum ever paid for
any fossil in the ground.

-Maurice Williams, who although seemingly content with the transaction
initially, changed his tune when the magnitute of the discovery becomes
apparent. He is quoted as saying that the $5000 check he cashed from
the BHIGR was only for the "right to disturb his land", not to actually
take possession of whatever was unearthed in the course of excavation.
Perhaps the 1 million dollar offer affected his memory somehow?

-The Cheyenne River Sioux Tribe, who assert that SUE belongs to the tribe
because it was found on tribal land. This claim is disputed by tribe
member Maurice Williams himself, who asserts that the land is his private 
property and not the tribe's. 

-The U.S. Gov't. Acting U.S. Attorney Kevin Schieffer, in the wake of his
seizure of SUE, claims that the fossil is the property of the "United
States, period".


---The grounds for seizure, as explained by Schieffer---

The raid and seizure was ordered by acting Attorney Schieffer and 
authorized by District Judge Richard Battey.

Acting Attorney Schieffer said:
"We have seized these fossils as evidence in a criminal investigation,
it is against the law to remove fossils from federal land. The one most
on-point as it relates to fossils is the federal Antiquities Act of 1906.
Unless somebody convinces me that I've misread the law, it's not going to
the tribe either. It's the property of the U.S. government and will be
preserved for scientific and educational purposes pursuant to the 
Antiquities Act. The ultimate fate of these priceless scientific fossils
will take some time to resolve with finality. But we should have the case 
wrapped up in less than 100 million years."

In spite of his reference to a criminal investigation and his clear
misunderstanding of the 1906 Antiquities Act, Shieffer seizes the
fossils without filing any criminal charges.  For the rest of his tenure 
in office as acting U.S. Attorney(which ended around January, 1993) he
still did not file any criminal charges. Think about this folks, he not
only seizes SUE and locks her up, but he seizes almost all the records,
current invoices, business and legal correspondences of BHIGR, virtually 
When a bewildered media sought answers with senior FBI agent Charles
Draper of Pierre, he responded that confiscation of property before
charges are filed is not unusual, but that any further questions on the
matter must be referred to Schieffer.

The saga takes many strange turns in the following months. The Cheyenne 
River tribe and Maurice Williams were both dismayed by Schieffer's claim
that the U.S. owns the fossil(although they supported Schieffer earlier).
When it became apparent that Schieffer considers land held in trust to be
federal land(i.e the land owner is irrelevant), the tribe and Williams
became disillusioned with him. 

The tribe then offered Williams a deal if he will just sign over his 
rights of the fossil to the tribe, but Williams rejected the deal. The 
tribe then approached the BHIGR to try to work out a deal. Talks collapsed 
after a few days with both sides still claiming ownership of SUE. The tribe
also claimed that the transaction between Williams and BHIGR was invalid
because Williams did not purchase a $100 "business license" from the tribe.
---The Legal Morass---

1) The Antiquities Act of 1906
Acting Attorney Schieffer cited the 1906 Antiquities Act as the legal 
basis for the seizure. We now know he was wrong. Even the government
admits this now. The Antiquities Act pertains to Native American cultural 
artifacts, not fossils. The BHIGR have never been charged with violating
the Antiquities Act.

2) Then what is the BHIGR currently charged with?
This would be almost unbelieveable if it weren't true. Four officers of
the BHIGR(Pete Larson, Neal Larson, Bob Farrar and Terry Wentz) currently
face a 30something count indictment on a variety of charges but get this:


When asked why no charges were filed pursuant to SUE, new U.S. Attorney
Karen Shreier would not comment.

3) The BHIGR has filed a suit to get SUE back. U.S. Judge Richard Battey
(the same judge who authorized the initial seizure) ruled that SUE was
real estate(yes, you read that right) and thus Williams needed permission
from the Dept. of Interior before he could sell her. This was appealed
and upheld and now is pending appeal to the Supreme Court. If SUE were
considered private property and not "real" property, the transaction
between Williams and BHIGR would be considered proper. (i.e. Williams
can sell private property in spite of trust status, but not land itself).
In other words, the BHIGR broke no laws with respect to SUE !!! Can you
imagine the ramifications if fossils are considered "real estate". How many
illegal "real estate" transactions are we going to retroactively prosecute 
based on this interpretation of the law?

This might also explain in part why no charges involving SUE have been 
filed to date or are ever likely to be. Imagine how many museums worldwide 
have been involved in illegal "real estate" transactions because they have 
purchased a fossil. Not eager to open this can of worms, the U.S. Attorney 
might be steering clear of the SUE issue completely.


---The Current Status---

All parties listed above still maintain their claim to the fossil except
for the federal government. It seems that the Feds tacitly admit Schieffer
was in error in claiming it for the U.S., but they are also caught between
two difficult choices:

    1)Return SUE the the BHIGR and drop charges. This would cost the Feds
      lots of reputations and embarrassment after the department spent 
      millions on the case. It would also fail to appease the Indian 
      claims including both the tribe and Maurice Williams, and lead to 
      more political heat from that direction.

    2)Continue with the prosecution of BHIGR to show that they are
      guilty of _something_, even if they committed no crimes with
      regard to SUE. This seems to be the course they are following.
      It would allow them to save some face by demonstrating that even
      if Schieffer was wrong in his actions and interpretation of the law, 
      the BHIGR still broke some laws on unrelated matters. But what 
      happens if the are acquitted on all charges? What will they try next?
      Are they just digging a deeper hole and shoveling away good money
      after bad?

If the Supreme Court were to hear this case, there is virtually no chance 
that they will uphold the classification of any fossil as "real estate".
The original transaction between Maurice Williams and BHIGR would be
ruled a valid transaction of private property, and SUE would return to the
Black Hills Natural History Foundation Museum. The big problem with this 
scenario is that the Supreme Court picks and chooses what they will hear,
and the chance of them hearing this any time soon is very small.
Meanwhile the court date for the BHIGR officers on the unrelated criminal
charges has been scheduled for October, 1994.  In the words of Patrick 
Duffy, Attorney for BHIGR, "They are going to have a very difficult time 
pursuading 12 South Dakotans that my clients committed 39 serious crimes."

Timber Lake Topic, vol 81 #49, 5-7-1992. Will Hill City SUE become
Cheyenne River SUE? by Jim Nelson.

The Argus Leader, 5-15-1992. Feds Nab Dinosaur Fossils. (AP)

Rapid City Journal, 5-16-1992. Sioux may drop complaint over fossil.
by Bill Harlan and Hugh O'Gara.

Rapid City Journal, 5-17-1992. T. rex's future still up in the air.
by Bill Harlan.

The New York Times, 5-19-1992. FBI Seizes Tyrannosaur in Fight Over
Fossils on Tribe Land.

The Huntsville Times, 5-18-1992. Dinosaur caught in custody battle.
by Martin Burkey.

Omaha World Herald, 5-20-1992 . Gigantic Fossil Sits at the Center of 
South Dakota Tug of War. (from the New York Times).

USA Today, 5-20-1992. Tyrannosaurus Sue, In whose closet does this skeleton
belong? by James Harney.

Custer County Chronicle, 5-20-1992. Tyrannosaurus rex confiscated by FBI
in Hill City. by Don Gerken.

Lakota Times, 5-20-1992. Hill City and CRST work together to save "Sue".
by Konnie LeMay.