## Facts

- Defendants May and Smyer excavated and removed Mimbres Indian artifacts from prehistoric ruins in the Gila National Forest, New Mexico, without a federal permit.
- The artifacts (including Mimbres bowls) were estimated to be 800–1,000 years old.
- Forest Service personnel found evidence of recent digging in a protected ruin area, including tire tracks, freshly dug holes, tools, and an unoccupied vehicle near posted notices referencing Antiquities Act protection.
- An inventory search of the vehicle found a photograph of May holding skulls and skeletal bones at or near the site.
- May later approached rangers, initially claiming his truck had been stolen, but then admitted digging at the ruins and selling bowls taken from the site.
- Investigators later found dozens of Mimbres bowls in Smyer’s home, supporting the government’s position that the defendants excavated from the site and intended commercial sale.

## Issues

1. Whether 16 U.S.C. § 433 (Antiquities Act) is unconstitutionally vague, as applied, because the terms “ruin” and “object of antiquity” fail to give fair notice and permit arbitrary enforcement.
2. Whether the statute provided adequate notice that excavating and removing clearly ancient artifacts from a prehistoric ruin on national forest land without a permit was criminal.

## Decision

- The Tenth Circuit affirmed the convictions and sentences.
- The court held the Antiquities Act was not void for vagueness as applied to defendants’ conduct.
- The court concluded the site was plainly a prehistoric ruin and the items were plainly objects of antiquity, providing fair notice under the Due Process Clause.
- The court distinguished cases finding vagueness problems where the prosecuted objects were not obviously ancient.

## Legal Principles

- A criminal statute satisfies due process, as applied, if it gives a person of ordinary intelligence fair notice that the conduct is forbidden and provides standards limiting arbitrary enforcement.
- General statutory terms may be constitutionally definite when applied to conduct involving clearly covered objects and circumstances.
- The Antiquities Act’s terms “ruin” and “object of antiquity” are sufficiently definite, as applied, to commercial excavation and removal of obviously ancient artifacts from a clearly prehistoric site on federal land without a permit.
- Posted warnings and the permitting scheme are relevant to notice in an as-applied vagueness analysis.

## Conclusion

The court upheld multiple Antiquities Act convictions arising from unauthorized excavation and removal of 800–1,000-year-old artifacts from a protected prehistoric ruin on federal land, holding that the statute’s terms provided adequate notice and were not unconstitutionally vague as applied to the defendants’ conduct.


United States v. Smyer, 596 F.2d 939 (10th Cir. 1979)