Owning Dinosaur Bones

The discovery of dinosaur fossils presents a core property law issue involving ownership. In 1990, Sue Hendrickson excavated Sue the T-Rex, one of the largest, most complete Tyrannosaurus rex fossils on a ranch owned by Maurice Williams. Hendrickson was working with the Black Hills Institute of Geological Research (BHI), a private commercial fossil collector, and gained William’s permission to excavate. In 1992, the FBI seized Sue the T-Rex, claiming the fossil belonged to the government because it was found on land held in government trust. What followed was a legal battle over who owned Sue the T-Rex. The courts found that Williams was the rightful owner based on his possessory interest in the land. However, because the land was held in trust by the government, Williams’ ownership functioned like a possessory interest while the government maintained legal title over Sue the T-Rex. Williams would later require government permission to sell Sue for $8.4 million.

To better understand how ownership of fossils works, it is helpful to look at the doctrine of finders from Armory v. Delamirie. In Armory, a chimney sweep’s boy found a jewel inside a chimney while working. The boy brought the jewel to a goldsmith for appraisal, who refused to return the jewel to the boy. The court in Armory held “That the finder of a jewel…has such a property as will enable him to keep it against all but the rightful owner.” Because the boy was a finder and the goldsmith was not the true owner, the boy owned the jewel.

The doctrine of finders provides insights into resolving fossil ownership disputes. Under Armory, finders of lost property have property rights against all but the true owner. However, as clarified in McAvoy v. Medina, this rule applies specifically to lost property and not to items embedded in the land, like fossils. Although Hendrickson and BHI excavated the fossil, they would not be finders because the fossil was embedded in the land rather than lost. Even if BHI and Hendrickson are considered finders, their rights would be second to that of the true owner. Whether Williams owns the fossil by virtue of owning the land it was found on depends on whether the jurisdiction follows the ratione soli or free taking doctrine. Williams has a strong claim to ownership as the true owner under ratione soli, which grants landowners possession of items found on their land, because the fossil was found on William’s land. The excavators could argue that under free taking, the landowner does not have automatic ownership and ownership would lie in who excavated the fossil. Furthermore, William’s property rights remain constrained by the government’s authority over trust land, making him unable to freely sell the fossils without government permission. As such, the legal battle over Sue the T-Rex demonstrates several property issues and complexities within common law.

These uncertainties of common law suggest a need for clear federal regulations, stating that whoever owns the land essentially owns the fossil discovered on it as the true owner. Federal law provides an important backdrop for fossil discovery today by regulating both access to and ownership of paleontological discoveries. The Paleontological Resources Preservation Act of 2009 created a federal system for managing fossil resources on public lands. It requires federal agencies to develop plans for inventory, monitoring, and scientific use of fossils, emphasizing collaboration with the scientific community and the general public. The Act establishes a permit requirement to collect fossils on public lands. On privately owned lands, it is legal to collect and keep fossils without any permits or requirements. This creates a legal structure in which fossil ownership is dependent on competing claims of discovery, excavation, and land control. However, although the current possessory rights are consistent with technical theories of property, it raises issues regarding fossil commercialization. The ruling in Sue the T-Rex’s dispute allows for fossil commercialization, consistent with the fundamental right of exclusivity of sale. It risks reducing fossils to market goods rather than preserving them as valuable scientific resources. Ultimately, fossil ownership should preserve traditional property rights while ensuring that scientifically significant discoveries are protected and preserved for public value.

Brianna Tran is a JD candidate at the American University Washington College of Law.

Image: Zissoudisctrucker, FMNH Tyrannosaurus rex Sue.