## Facts

- General Electric owned land in Indiana containing an ancient Native American (Hopewell) burial mound.
- During highway construction, artifacts and the burial mound were exposed; a worker, Bill Way, used a bulldozer to enter the mound and remove artifacts.
- Way took Arthur Joseph Gerber, a well-known artifact collector, to the site; Gerber paid Way $6,000 for artifacts already removed and for access to the mound.
- Gerber repeatedly excavated the mound himself and removed hundreds of artifacts without the landowner’s permission.
- Gerber admitted he unlawfully entered the land and took artifacts in violation of Indiana criminal laws (trespass and conversion) and later transported some artifacts in interstate commerce for sale.
- Gerber pleaded guilty to misdemeanor violations of the Archaeological Resources Protection Act (ARPA), 16 U.S.C. § 470ee(c), while preserving his right to appeal the statute’s applicability; he received a 12-month sentence.

## Issues

1. Whether ARPA § 470ee(c) applies to archaeological resources removed from privately owned land when taken in violation of state law and then transported in interstate commerce.
2. Whether § 470ee(c) is triggered by violations of generally applicable state laws (e.g., trespass and conversion), or only by state/local provisions specifically directed at protecting archaeological resources.
3. Whether § 470ee(c) is unconstitutionally vague as applied to Gerber’s conduct.

## Decision

- The Seventh Circuit affirmed the conviction and sentence.
- The court held that § 470ee(c) applies to archaeological resources taken from private land if they were excavated or removed in violation of state or local law and then moved in interstate commerce.
- The court held that “any provision … under State or local law” includes laws of general application, including trespass and conversion.
- The court rejected Gerber’s vagueness challenge as applied, emphasizing that the statute’s application depended on clear state-law violations plus an interstate commerce nexus and that Gerber’s conduct was knowing and intentional.

## Legal Principles

- ARPA § 470ee(c) is not limited to resources taken from federal or Indian lands; it extends to resources taken from private land when the statutory elements are met.
- A predicate violation under “any” state or local law can satisfy § 470ee(c), including generally applicable criminal laws, not only archaeology-specific enactments.
- Conditioning federal liability on (1) an underlying state/local law violation and (2) interstate commerce provides sufficient notice and standards to defeat an as-applied vagueness challenge in a case involving deliberate trespass and conversion.

## Conclusion

The court upheld Gerber’s ARPA conviction, holding that § 470ee(c) reaches artifacts taken from private property in violation of generally applicable state criminal laws and later transported in interstate commerce, and that the statute was not unconstitutionally vague as applied to intentional looting and commercial trafficking.


United States v. Gerber, 999 F.2d 1112 (7th Cir. 1993)