U.S. v. Gerber
| Decision Date | 20 July 1993 |
| Docket Number | No. 92-2741,92-2741 |
| Citation | 999 F.2d 1112 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Arthur J. GERBER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Larry A. Mackey (argued), Scott C. Newman, Asst. U.S. Attys., Indianapolis, IN, for U.S.
Harvey M. Silets (argued), Kenneth M. Kliebard, Katten, Muchin & Zavis, Chicago, IL, Jeffery L. Lantz, Evansville, IN, for Arthur J. Gerber.
Steven R. Dowell, Newport, KY, for Society for Documentation of Prehistoric America amicus curiae and Three Rivers Archaeological Soc., amicus curiae.
Steven R. Dowell, Newport, KY, E. Dean Singleton, Owensville, IN, C. Dean Higginbotham, Princeton, IN, for Indiana Archaeological Soc., amicus curiae.
E. Dean Singleton, Owensville, IN, C. Dean Higginbotham, Princeton, IN, for Council for Conservation of Indiana Archaeology, amicus curiae, Wabash Valley Archaeological Soc., amicus curiae, Society of American Archaeology, amicus curiae, Society of Professional Archaeologists, amicus curiae, Illinois Archaeological Survey, amicus curiae, Kentucky Organization of Professional Archaeologists, amicus curiae, Archaeological Society of Indianapolis, amicus curiae and National Trust for Historic Preservation in the U.S., amicus curiae.
Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
Arthur Joseph Gerber pleaded guilty to misdemeanor violations of the Archaeological Resources Protection Act of 1979, 16 U.S.C. §§ 470aa et seq., and was sentenced to twelve months in prison, reserving however his right to appeal on the ground that the Act is inapplicable to his offense. What he had done was to transport in interstate commerce Indian artifacts * that he had stolen from a burial mound on privately owned land in violation of Indiana's criminal laws of trespass and conversion. The section of the Archaeological Resources Protection Act under which he was convicted provides that "no person may sell, purchase, exchange, transport, receive, or offer to sell, purchase, or exchange, in interstate or foreign commerce, any archaeological resource excavated, removed, sold, purchased, exchanged, transported, or received in violation of any provision, rule, regulation, ordinance, or permit in effect under State or local law." 16 U.S.C. § 470ee(c). Gerber argues that despite the references in this section to state and local law, the Act is inapplicable to archaeological objects removed from lands not owned either by the federal government or by Indian tribes. His back-up argument is that the provisions, rules, regulations, and so forth of state or local law to which the Act refers are limited to provisions expressly protecting archaeological objects or sites, as distinct from laws of general application such as those forbidding trespass and theft. The issues are novel because this is the first prosecution under the Act of someone who trafficked in archaeological objects removed from lands other than either federal or Indian lands.
More than fifteen hundred years ago in the American midwest Indians built a series of large earthen mounds over prepared mound floors containing human remains plus numerous ceremonial artifacts and grave goods made of silver, copper, wood, cloth, leather, obsidian, flint, mica, quartz, pearl, shells, and drilled, carved, or inlaid human and bear teeth. This mound culture, the product of a civilization that included the beginnings of settled agriculture, an elaborate ceremonialism, and far-flung trading networks, has been dubbed the "Hopewell phenomenon." N'omi B. Greber & Katharine C. Ruhl, The Hopewell Site: A Contemporary Analysis Based on the Work of Charles C. Willoughby (1989); Warren K. Moorehead, The Hopewell Mound Group of Ohio (Field Museum of Natural History, Publication No. 211, 1922). In 1985 farmers sold General Electric a piece of untillable land in southwestern Indiana adjacent to one of its factories. The land contained a prominent knob on top of a ridge. Unbeknownst to anyone this knob was a Hopewell burial mound some 400 feet long, 175 feet wide, and 20 feet high. The mound and its contents (which included two human skeletons) were intact--even the perishable materials such as wood and leather artifacts were well preserved--and when discovered it would prove to be one of the five largest Hopewell burial mounds known.
A highway was planned to run through the ridge on which the knob was located. In the course of construction, in 1988, earth was removed from the knob to stabilize the roadbed. Workmen engaged in this removal discovered in the knob curious objects--turtleback-shaped rocks--which they showed to a heavy-equipment operator on the project, named Bill Way, who happened to be a collector of Indian artifacts. Recognizing the significance of the find, Way nosed his bulldozer into the knob and quickly discovered hundreds of artifacts, including copper axeheads, inlaid bear canines, and tooled leather. He loaded these items into his pickup truck and covered up the excavation he had made. An acquaintance put him in touch with Arthur Joseph Gerber, a well-known collector of Indian artifacts and promoter of annual Indian "relic shows." Gerber paid Way $6,000 for the artifacts and for revealing to Gerber the location of the mound. Way took Gerber to the site the same night, encountering other people digging for Indian artifacts. Gerber returned to the site several more times, excavating and removing hundreds of additional artifacts, including silver earspools, copper axeheads, pieces of worked leather, and rare silver musical instruments, some with the original reeds preserved. On Gerber's last visit to the site he was detected by a General Electric security guard and ejected. Shortly afterward Gerber sold some of the artifacts at his annual "Indian Relic Show of Shows" in Kentucky. He acknowledges that in entering upon General Electric's land without the company's permission and in removing, again without its permission, Indian artifacts buried there, he committed criminal trespass and conversion in violation of Indiana law. He also acknowledges having transported some of the stolen artifacts in interstate commerce.
The preamble of the Archaeological Resources Protection Act of 1979 states that "archaeological resources on public lands [defined elsewhere in the Act as federal public lands] and Indian lands are an accessible and irreplaceable part of the Nation's heritage" and that the purpose of the Act is "to secure, for the present and future benefit of the American people, the protection of archaeological resources and sites which are on public lands and Indian lands." 16 U.S.C. §§ 470aa(a)(1), (b). Consistent with this preamble, most of the Act is given over to the regulation, in the form of civil and criminal penalties, permit requirements, forfeiture provisions, and other regulatory devices, of archaeological activities on federal and Indian lands. The criminal penalties are for archaeological activities conducted on those lands without a permit and for trafficking in archaeological objects that have been removed from them in violation either of the Act's permit requirements or of any other federal law. §§ 470ee(a), (b). Gerber did not remove Indian artifacts from federal or Indian lands, however, and was therefore prosecuted under the third criminal provision (§ 470ee(c), quoted earlier), which is not in terms limited to such lands.
The omission of any reference in subsection (c) to federal and Indian lands was, Gerber argues, inadvertent. Not only the preamble of the Act, but its legislative history, shows that all that Congress was concerned with was protecting archaeological sites and objects on federal and Indian lands. This is indeed all that the preamble mentions; and a principal sponsor of the Act said that "it does not affect any lands other than the public lands of the United States and [Indian] lands." 125 Cong.Rec. 17,394 (1979) (remarks of Congressman Udall). The legislative history contains no reference to archaeological sites or objects on state or private lands. The Act superseded the Antiquities Act of 1906, 16 U.S.C. §§ 431-33, which had been expressly limited to federal lands. And if the Act applies to nonfederal, non-Indian lands, its provisions are at once overinclusive and underinclusive: overinclusive because the Act authorizes the federal court in which a defendant is prosecuted to order, in its discretion, the forfeiture of the archaeological objects involved in the violation to the United States (unless they were removed from Indian lands), §§ 470gg(b...
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