Monday, November 2, 2009

Suing for "Sue,"....Old Bones & Wild Horses - The Govt as Trustee

Reserving "Sue"
Jeff Poling


"What is to become of 'Sue,' the largest and arguably most complete known specimen of Tyrannosaur[us] rex ever found? The magnificent fossil -- nicknamed after Susan Hendrickson, the woman who found it -- has been at the center of a court battle over legal ownership ever since it was excavated by commercial collectors in 1990. Seized by the Federal Government in 1992 because Sue had been found on public lands -- namely a private ranch held in trust located on the Cheyenne river Sioux Indian reservation near Faith, South Dakota -- a recent court ruling assigned ownership of the fossil to a private individual, giving him permission to sell the fossil and pocket the proceeds."

The paragraph above appeared on the original "Save Sue" page of the Dinosaur Society website. It was the opening paragraph of a page that decried the government's intent to allow the sale of "Sue" by auction at Sotheby's, a large New York auction house. "Sue" will be sold to the highest bidder, and the fossil may be locked away in a private collection, possibly overseas. Reserving "Sue" for the American public, for viewing and study, is a noble goal. However, the actions taken to accomplish the goal must take into account the true facts surrounding "Sue's" status. Otherwise, inappropriate actions will be taken and the effort will be wasted.

The Dinosaur Society states, in essence, that fossils found on public land are public property. Therefore, they state, such fossils should not be sold and should instead reside in museums or other institutions. This was the main focus of their efforts to reserve "Sue," before they were informed of what you read here and changed their goals, and remains the focus of those not as well informed. The problem with this focus on public land and property is that "Sue" was not found on public land, and therefore is not public property.

In America we trust?

"Sue" was found on the land of Maurice Williams in 1990 by the Black Hills Institute of Geological Research (BHI). Maurice Williams is a member of the Cheyenne River Sioux and, like many American Indians, his land is held in trust by the United States government.

A trust, simply, is where property, money or other items are placed in the care of one or more other people, called trustees. In terms of real estate (land and whatever is found on or in that land), the trustee is given nominal ownership of the land and administers this land for the benefit of the person for whom the land was placed in trust (the "beneficial owner"). The trustee has a fiduciary obligation, backed by force of law, to do what is in the best interest of the beneficial owner. If the trustee fails in his fiduciary obligation, he can be prosecuted.

Although the trustee is the nominal owner of the land, it is not his property. He may not use it for his own benefit, and should the trust be dissolved, the trust lands become the sole property of the beneficial owner. In the case of Maurice Williams, the deed to the land states that it is held in trust by the U.S. government for the sole use and benefit of Maurice Williams and his heirs. As trustee, the U.S. government is bound by the trust's fiduciary obligations, and when the trust is dissolved, the land reverts to the sole ownership and control of Maurice Williams or his heirs. These facts carry the force of law under Title 25 U.S. Code, and various other statutes. The fact that the U.S. government is a public entity, rather than a private or commercial one, does not change the conceptual and legal status of the trust, nor does it make public land of the lands held in trust. Indeed, the Bureau of Indian Affairs states very plainly that Indian trust land is private property.

The ultimate owner of the land is Maurice Williams, a private citizen. As the land is owned by a private citizen, it is legally private property. This fact has been affirmed in court many times, including by the Eighth Circuit Court of Appeals and the Supreme Court during court proceedings over the ownership of "Sue."

So who currently owns "Sue?"

The battle over who owns "Sue" was fought arduously in the courts. The question was whether Maurice Williams, BHI, or the federal government in trust for Maurice Williams, owns the fossil. The ultimate decision of the courts, including the Supreme Court, remains highly controversial, but ownership has been determined.

The ownership controversy arose because of the undetermined status of what a fossil is. Is a fossil personal property, or is it land (specifically, real estate)?

There are no definitions within Title 25 for what constitutes land. Precedence allowed the appeals court to turn to state law for such definitions. Under South Dakota property 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 court decided that "Sue" was an "'ingredient' comprising part of the 'solid material of the earth.' It was a component part of Williams' land, just like the soil, the rocks, and whatever other naturally-occurring materials make up the earth of the ranch." Therefore, according to the court, "Sue" was land at the time it was found, and when the sale occurred.

Since the fossil was land, sale and removal of the fossil had to be approved by the trustee of the land, specifically the Secretary of the Interior acting on behalf of the U.S. government. Since no permission was sought nor granted, the sale to BHI was null and void.

Interestingly, had BHI waited until "Sue" was completely out of the ground to pay for the fossil, the court may have awarded ownership of the fossil to them. Once severed from the land, "Sue" became personal property, an opinion upheld by the court. Previous Supreme Court decisions had allowed sale, without permission, of timber, minerals and other items falling under the definition of land, that had already been severed from the land, as long as such items did not constitute a significant portion of the value of the land. Whether BHI could have convinced the court that "Sue," valued at the time at up to five million dollars, was not a valuable part of the land, will never be known.

The Court of Appeals, in rendering its opinion (upheld by the Supreme Court), cited Supreme Court precedents that land subject to trust restrictions remains under such restrictions even after being severed from the rest of the land and becoming personal private property. As such, even though "Sue" is no longer land, it is still subject to trust restrictions.

"Sue" is now legally Maurice Williams' personal private property, held in trust by the U.S. government. "Sue," in trust, is not public property for the same reasons, stated above, that Williams' land, in trust, is not public property.

It should be noted that in rendering these opinions the court had to rely on South Dakota law. Had "Sue" been found in another state, the outcome might have been very different.

Can "Sue" be reserved?

Maurice Williams, the proper owner of "Sue," is an older gentleman who has no particular love of science or fossils. He feels that given what little time he has left, he should get the value out of "Sue" or any other fossil while he can. As such, he has asked the government to sell "Sue" in his behalf.

As trustee, the U.S. government has a legal fiduciary duty to do what is in the best interest of Maurice Williams. If Williams is not being ripped off by the sale, the government is legally obligated to approve the sale.

The Dinosaur Society recently attempted to put itself at the forefront of an effort to reserve "Sue." Their efforts were based on their incorrect notion that "Sue" was public property, as shown by the opening paragraph of this document. To their credit, when I informed them that "Sue" was not found on public land and is not public property, the Dinosaur Society removed their "Save Sue" page, focused on "saving" "Sue," and replaced it with one focused on their efforts to ban fossil collecting on public lands (unfortunately, this new page uses "Sue" as a draw to the page, infers in certain paragraphs that "Sue" is public property, and still uses "Save Sue" as the page file name and link title, problems that they need to clean up).

The main thrust of the Society's effort to prevent fossil collecting on public lands is for people to write their Congressmen. Given the nature of the "Sue" controversy this is also the route many advocate taking to try to reserve "Sue." Therefore, writing Congress for "Sue's" sake bears analysis here.

There are only four avenues open to Congress to reserve "Sue:"

Refuse Williams the permission to sell "Sue."
Seize the fossil and give it to a public institution.
Buy the fossil and give it to a public institution.
Prohibit the sale of all fossils, and restrict their movements.
Number one will not happen. As stated above, the government, as trustee of Williams' land, is legally obligated to fulfill its fiduciary duty to approve the sale if it determines Williams is not being ripped off.

Number two is unlikely to happen. Simply seizing "Sue" would be difficult on constitutional grounds. The courts have affirmed that "Sue" is personal private property, and the Fifth Amendment specifically prohibits taking personal property for public use without just compensation. This action would also raise trust fiduciary duty questions as the public, as trustees through the government, would be taking the trust material for its own use. Theoretically, the Congress could seize the fossil and pay Williams for it, but this would bring up the question of whether the government was breaching its fiduciary duties by doing so.

Number three is possible, but not probable. The government could purchase the fossil, without seizing it, as long as in doing so it did not violate its fiduciary duties to Williams. Whether the government would be willing to purchase the fossil in this era of shrinking government and growing debt is questionable.

Number four is possible, but very difficult. There are many, many questions to the legality of this one. Could legislation banning the sale and exportation of fossils, as with drugs, pass constitutional muster? Could such laws be interpreted as the seizure of private property for public use, a direct violation of the Fifth Amendment? Certainly, given the complexity of the issue, such laws would not be in place by the time "Sue" comes up for sale. There would certainly be widespread opposition to this. Despite SAFE's (Save America's Fossils for Everyone) contention that their poll shows the American public would be in favor of restrictions on private ownership and sale of fossils found on private land, the poll, in fact, shows that they do not (although, to be fair, the poll was so badly done it is hard to tell whether those results are any more accurate than others in the poll).

In a bizarre legal twist, it is possible that the government might be able to squirm its way out of prosecution for breaching its fiduciary duties in carrying out any of the options above. The Court of Appeals, in determining the ownership of "Sue," stated that the lack of enumeration of fossils in U.S. statutes suggests that the government could not be held responsible for mismanaging fossil resources on Williams' land. To escape prosecution, the government could try to argue before the court that their actions constituted mismanagement, rather than a deliberate breach of fiduciary duties and theft. Whether a court would buy this argument is impossible to tell. Regardless, whether the government could get away with breaching its fiduciary duties is not the only issue. What far-reaching affects would such a deliberate breach have on the trustworthiness of the U.S. government, confidence in which is necessary in the bond markets, government trusts, federal protection and law enforcement, foreign treaties, backing of U.S. currency, and so many other integral parts of the day-to-day business of government? Is it morally right to encourage the government to deliberately breach its fiduciary obligations? If the government does breach these duties, what will be at the end of the road such a breach will start it down?

Interestingly, part of the Dinosaur Society's effort, to promote legal restrictions on removal of fossils from public lands, is encouraging school children to write to Congress. Their suggested letter reads, in part, "Please help 'Sue' and her friends . . ." by making it ". . . illegal to remove fossils from America's public lands." As stated above, Williams' land, where "Sue" was found, is not public land (nor is it quasi-public land, a deceptive term used by the Dinosaur Society). Thus, making it illegal to remove fossils from public land would not in any way help reserve "Sue" (it should also be noted that if Congress indeed made it illegal to remove fossils from public lands, nobody, not even professionals and institutions, would have access to fossils on public lands).

So what can we do to reserve "Sue?" Buy it. Some institution, confederation of institutions, or organization (either already existing or created specifically for this purpose), should start a fund to purchase "Sue," if they cannot already buy it outright. There is legitimate concern that such a purchase might up the ante in the fossil markets, thus worsening what institutions already consider a bad situation. However, the reality of the situation is that purchasing "Sue" is the only realistic choice to guarantee public study of "Sue." Fortunately, Sotheby's will allow any American institution that submits a winning bid to pay off the purchase over three years. Any organization that makes an effort to solicit money to help pay for "Sue" will be able to spread the effort over those three years; however, the effort must be established soon as the fossil will be auctioned off in early 1997.


"Sue" is not public property. It was found on private property held in trust by the government, not public property owned by the government. The fossil itself is the personal private property of Maurice Williams, held in trust by the government. Because the government must fulfill its legal fiduciary obligations to Williams, the government has granted Williams' request to sell the fossil by auction at Sotheby's. Because "Sue" is private property, the only realistic way to prevent "Sue's" sale to a private collection or foreign investor is to buy it for a public institution. Hopefully, the Dinosaur Society and other organizations, public and private institutions, and dinosaur and fossil enthusiasts everywhere will put away their political axes to grind and try to gather the money necessary to purchase "Sue" for an American institution.

Davis, Barbara, Office of Trust Responsibilities, Division of Real Estate Services, Bureau of Indian Affairs, Department of the Interior. Telephone interview with the author. Columbus, 4 December 1996.
The Dinosaur Society. 1996. The Dinosaur Society - Save the Dinosaurs!,, 31 December 1996. New York: The Dinosaur Society Website,
The Dinosaur Society. 1996. The Dinosaur Society - Save Sue,, 4 December 1996. New York: The Dinosaur Society Website,
Monastersky, Richard. 1995. For the sake of Sue. Science News?
Pelfry, Roy, Bureau of Indian Affairs Aberdeen (SD) Area Office, Department of the Interior. Telephone interview with the author. Columbus, 4 December 1996.
United States Code.
United States Court Of Appeals For The Eighth Circuit. 1994. Black Hills Institute of Geological Research; Black Hills Museum of Natural History Foundation, Inc., a non-profit corporation, Plaintiffs, Joseph M. Butler, Appellant, v. South Dakota School of Mines and Technology, Appellee, United States Department of Justice, Defendant. Black Hills Institute of Geological Research; Black Hills Museum of Natural History Foundation, Inc., a non-profit corporation, Appellants, v. United States Department of Justice, Appellee. 12 F.3d 737.

Copyright © 1996, 1997 by Jeff Poling

Revised: February 8, 1999; New: December 30, 1996

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