[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 2165 Engrossed in Senate (ES)]

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116th CONGRESS
  2d Session
                                S. 2165

_______________________________________________________________________

                                 AN ACT


 
 To enhance protections of Native American tangible cultural heritage, 
                        and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Safeguard Tribal Objects of 
Patrimony Act of 2020''.

SEC. 2. PURPOSES.

    The purposes of this Act are--
            (1) to carry out the trust responsibility of the United 
        States to Indian Tribes;
            (2) to increase the maximum penalty for actions taken in 
        violation of the Native American Graves Protection and 
        Repatriation Act (25 U.S.C. 3001 et seq.) (including section 
        1170 of title 18, United States Code, as added by that Act), in 
        order to strengthen deterrence;
            (3) to stop the export, and facilitate the international 
        repatriation, of cultural items prohibited from being 
        trafficked by the Native American Graves Protection and 
        Repatriation Act (25 U.S.C. 3001 et seq.) (including section 
        1170 of title 18, United States Code, as added by that Act) and 
        archaeological resources prohibited from being trafficked by 
        the Archaeological Resources Protection Act of 1979 (16 U.S.C. 
        470aa et seq.) by--
                    (A) explicitly prohibiting the export;
                    (B) creating an export certification system; and
                    (C) confirming the authority of the President to 
                request from foreign nations agreements or provisional 
                measures to prevent irremediable damage to Native 
                American cultural heritage;
            (4) to establish a Federal framework in order to support 
        the voluntary return by individuals and organizations of items 
        of tangible cultural heritage, including items covered by the 
        Native American Graves Protection and Repatriation Act (25 
        U.S.C. 3001 et seq.) (including section 1170 of title 18, 
        United States Code, as added by that Act) and the 
        Archaeological Resources Protection Act of 1979 (16 U.S.C. 
        470aa et seq.);
            (5) to establish an interagency working group to ensure 
        communication between Federal agencies to successfully 
        implement this Act, the Native American Graves Protection and 
        Repatriation Act (25 U.S.C. 3001 et seq.) (including section 
        1170 of title 18, United States Code, as added by that Act), 
        the Archaeological Resources Protection Act of 1979 (16 U.S.C. 
        470aa et seq.), and other relevant Federal laws;
            (6) to establish a Native working group of Indian Tribes 
        and Native Hawaiian organizations to assist in the 
        implementation of this Act, the Native American Graves 
        Protection and Repatriation Act (25 U.S.C. 3001 et seq.) 
        (including section 1170 of title 18, United States Code, as 
        added by that Act), the Archaeological Resources Protection Act 
        of 1979 (16 U.S.C. 470aa et seq.), and other relevant Federal 
        laws;
            (7) to exempt from disclosure under section 552 of title 5, 
        United States Code (commonly known as the ``Freedom of 
        Information Act'')--
                    (A) information submitted by Indian Tribes or 
                Native Hawaiian organizations pursuant to this Act; and
                    (B) information relating to an Item Requiring 
                Export Certification for which an export certification 
                was denied pursuant to this Act; and
            (8) to encourage buyers to purchase legal contemporary art 
        made by Native artists for commercial purposes.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Archaeological resource.--The term ``archaeological 
        resource'' means an archaeological resource (as defined in 
        section 3 of the Archaeological Resources Protection Act of 
        1979 (16 U.S.C. 470bb)) that is Native American.
            (2) Cultural affiliation.--The term ``cultural 
        affiliation'' means that there is a relationship of shared 
        group identity that can be reasonably traced historically or 
        prehistorically between a present day Indian Tribe or Native 
        Hawaiian organization and an identifiable earlier group.
            (3) Cultural item.--The term ``cultural item'' means any 1 
        or more cultural items (as defined in section 2 of the Native 
        American Graves Protection and Repatriation Act (25 U.S.C. 
        3001)).
            (4) Indian tribe.--The term ``Indian Tribe'' has the 
        meaning given the term ``Indian tribe'' in section 2 of the 
        Native American Graves Protection and Repatriation Act (25 
        U.S.C. 3001).
            (5) Item prohibited from exportation.--The term ``Item 
        Prohibited from Exportation'' means--
                    (A) a cultural item prohibited from being 
                trafficked, including through sale, purchase, use for 
                profit, or transport for sale or profit, by--
                            (i) section 1170(b) of title 18, United 
                        States Code, as added by the Native American 
                        Graves Protection and Repatriation Act (25 
                        U.S.C. 3001 et seq.); or
                            (ii) any other Federal law or treaty; and
                    (B) an archaeological resource prohibited from 
                being trafficked, including through sale, purchase, 
                exchange, transport, receipt, or offer to sell, 
                purchase, or exchange, including in interstate or 
                foreign commerce, by--
                            (i) subsections (b) and (c) of section 6 of 
                        the Archaeological Resources Protection Act of 
                        1979 (16 U.S.C. 470ee); or
                            (ii) any other Federal law or treaty.
            (6) Item requiring export certification.--
                    (A) In general.--The term ``Item Requiring Export 
                Certification'' means--
                            (i) a cultural item; and
                            (ii) an archaeological resource.
                    (B) Exclusion.--The term ``Item Requiring Export 
                Certification'' does not include an item described in 
                clause (i) or (ii) of subparagraph (A) for which an 
                Indian Tribe or Native Hawaiian organization with a 
                cultural affiliation with the item has provided a 
                certificate authorizing exportation of the item.
            (7) Native american.--The term ``Native American'' means--
                    (A) Native American (as defined in section 2 of the 
                Native American Graves Protection and Repatriation Act 
                (25 U.S.C. 3001)); and
                    (B) Native Hawaiian (as so defined).
            (8) Native hawaiian organization.--The term ``Native 
        Hawaiian organization'' has the meaning given the term in 
        section 2 of the Native American Graves Protection and 
        Repatriation Act (25 U.S.C. 3001).
            (9) Secretary.--The term ``Secretary'' means the Secretary 
        of the Interior.
            (10) Tangible cultural heritage.--The term ``tangible 
        cultural heritage'' means--
                    (A) Native American human remains; or
                    (B) culturally, historically, or archaeologically 
                significant objects, resources, patrimony, or other 
                items that are affiliated with a Native American 
                culture.

SEC. 4. ENHANCED NAGPRA PENALTIES.

    Section 1170 of title 18, United States Code, is amended--
            (1) by striking ``5 years'' each place it appears and 
        inserting ``10 years''; and
            (2) in subsection (a), by striking ``12 months'' and 
        inserting ``1 year and 1 day''.

SEC. 5. EXPORT PROHIBITIONS; EXPORT CERTIFICATION SYSTEM; INTERNATIONAL 
              AGREEMENTS.

    (a) Export Prohibitions.--
            (1) In general.--It shall be unlawful for any person--
                    (A) to export, attempt to export, or otherwise 
                transport from the United States any Item Prohibited 
                from Exportation;
                    (B) to conspire with any person to engage in an 
                activity described in subparagraph (A); or
                    (C) to conceal an activity described in 
                subparagraph (A).
            (2) Penalties.--Any person who violates paragraph (1) and 
        knows, or in the exercise of due care should have known, that 
        the Item Prohibited from Exportation was taken, possessed, 
        transported, or sold in violation of, or in a manner unlawful 
        under, any Federal law or treaty, shall be fined in accordance 
        with section 3571 of title 18, United States Code, imprisoned 
        for not more than 1 year and 1 day for a first violation, and 
        not more than 10 years for a second or subsequent violation, or 
        both.
            (3) Detention, forfeiture, and repatriation.--
                    (A) Detention and delivery.--The Secretary of 
                Homeland Security, acting through the Commissioner of 
                U.S. Customs and Border Protection, shall--
                            (i) detain any Item Prohibited from 
                        Exportation that is exported, attempted to be 
                        exported, or otherwise transported from the 
                        United States in violation of paragraph (1); 
                        and
                            (ii) deliver the Item Prohibited from 
                        Exportation to the Secretary.
                    (B) Forfeiture.--Any Item Prohibited from 
                Exportation that is exported, attempted to be exported, 
                or otherwise transported from the United States in 
                violation of paragraph (1) shall be subject to 
                forfeiture to the United States in accordance with 
                chapter 46 of title 18, United States Code (including 
                section 983(c) of that chapter).
                    (C) Repatriation.--Any Item Prohibited from 
                Exportation that is forfeited under subparagraph (B) 
                shall be expeditiously repatriated to the appropriate 
                Indian Tribe or Native Hawaiian organization in 
                accordance with, as applicable--
                            (i) the Native American Graves Protection 
                        and Repatriation Act (25 U.S.C. 3001 et seq.) 
                        (including section 1170 of title 18, United 
                        States Code, as added by that Act); or
                            (ii) the Archaeological Resources 
                        Protection Act of 1979 (16 U.S.C. 470aa et 
                        seq.).
    (b) Export Certification System.--
            (1) Export certification requirement.--
                    (A) In general.--No Item Requiring Export 
                Certification may be exported from the United States 
                without first having obtained an export certification 
                in accordance with this subsection.
                    (B) Publication.--The Secretary, in consultation 
                with Indian Tribes and Native Hawaiian organizations, 
                shall publish in the Federal Register a notice that 
                includes--
                            (i) a description of characteristics 
                        typical of Items Requiring Export 
                        Certification, which shall--
                                    (I) include the definitions of the 
                                terms--
                                            (aa) ``cultural items'' in 
                                        section 2 of the Native 
                                        American Graves Protection and 
                                        Repatriation Act (25 U.S.C. 
                                        3001); and
                                            (bb) ``archaeological 
                                        resource'' in section 3 of the 
                                        Archaeological Resources 
                                        Protection Act of 1979 (16 
                                        U.S.C. 470bb);
                                    (II) describe the provenance 
                                requirements associated with the 
                                trafficking prohibition applicable to--
                                            (aa) cultural items under 
                                        section 1170(b) of title 18, 
                                        United States Code; and
                                            (bb) archaeological 
                                        resources under subsections (b) 
                                        and (c) of section 6 of 
                                        Archaeological Resources 
                                        Protection Act of 1979 (16 
                                        U.S.C. 470ee);
                                    (III)(aa) include the definitions 
                                of the terms ``Native American'' and 
                                ``Native Hawaiian'' in section 2 of the 
                                Native American Graves Protection and 
                                Repatriation Act (25 U.S.C. 3001); and
                                    (bb) describe how those terms apply 
                                to archaeological resources under this 
                                Act; and
                                    (IV) be sufficiently specific and 
                                precise to ensure that--
                                            (aa) an export 
                                        certification is required only 
                                        for Items Requiring Export 
                                        Certification; and
                                            (bb) fair notice is given 
                                        to exporters and other persons 
                                        regarding which items require 
                                        an export certification under 
                                        this subsection; and
                            (ii) a description of characteristics 
                        typical of items that do not qualify as Items 
                        Requiring Export Certification and therefore do 
                        not require an export certification under this 
                        subsection, which shall clarify that--
                                    (I) an item made solely for 
                                commercial purposes is presumed to not 
                                qualify as an Item Requiring Export 
                                Certification, unless an Indian Tribe 
                                or Native Hawaiian organization 
                                challenges that presumption; and
                                    (II) in some circumstances, 
                                receipts or certifications issued by 
                                Indian Tribes or Native Hawaiian 
                                organizations with a cultural 
                                affiliation with an item may be used as 
                                evidence to demonstrate a particular 
                                item does not qualify as an Item 
                                Requiring Export Certification.
            (2) Eligibility for export certification.--An Item 
        Requiring Export Certification is eligible for an export 
        certification under this subsection if--
                    (A) the Item Requiring Export Certification is not 
                under ongoing Federal investigation;
                    (B) the export of the Item Requiring Export 
                Certification would not otherwise violate any other 
                provision of law; and
                    (C) the Item Requiring Export Certification--
                            (i) is not an Item Prohibited from 
                        Exportation;
                            (ii) was excavated or removed pursuant to a 
                        permit issued under section 4 of the 
                        Archaeological Resources Protection Act of 1979 
                        (16 U.S.C. 470cc) and in compliance with 
                        section 3(c) of the Native American Graves 
                        Protection and Repatriation Act (25 U.S.C. 
                        3002(c)), if the permit for excavation or 
                        removal authorizes export; or
                            (iii) is accompanied by written 
                        confirmation from the Indian Tribe or Native 
                        Hawaiian organization with authority to 
                        alienate the Item Requiring Export 
                        Certification that--
                                    (I) the exporter has a right of 
                                possession (as defined in section 2 of 
                                the Native American Graves Protection 
                                and Repatriation Act (25 U.S.C. 3001)) 
                                of the Item Requiring Export 
                                Certification; or
                                    (II) the Indian Tribe or Native 
                                Hawaiian organization has relinquished 
                                title or control of the Item Requiring 
                                Export Certification in accordance with 
                                section 3 of the Native American Graves 
                                Protection and Repatriation Act (25 
                                U.S.C. 3002).
            (3) Export certification application and issuance 
        procedures.--
                    (A) Applications for export certification.--
                            (i) In general.--An exporter seeking to 
                        export an Item Requiring Export Certification 
                        from the United States shall submit to the 
                        Secretary an export certification application 
                        in accordance with clause (iii).
                            (ii) Consequences of false statement.--Any 
                        willful or knowing false statement made on an 
                        export certification application form under 
                        clause (i) shall--
                                    (I) subject the exporter to 
                                criminal penalties pursuant to section 
                                1001 of title 18, United States Code; 
                                and
                                    (II) prohibit the exporter from 
                                receiving an export certification for 
                                any Item Requiring Export Certification 
                                in the future unless the exporter 
                                submits additional evidence in 
                                accordance with subparagraph 
                                (B)(iii)(I).
                            (iii) Form of export certification 
                        application.--The Secretary, in consultation 
                        with Indian Tribes and Native Hawaiian 
                        organizations, and at the discretion of the 
                        Secretary, in consultation with third parties 
                        with relevant expertise, including institutions 
                        of higher education, museums, dealers, and 
                        collector organizations, shall develop an 
                        export certification application form, which 
                        shall require that an applicant--
                                    (I) describe, and provide pictures 
                                of, each Item Requiring Export 
                                Certification that the applicant seeks 
                                to export;
                                    (II) include all available 
                                information regarding the provenance of 
                                each such Item Requiring Export 
                                Certification; and
                                    (III) include the attestation 
                                described in subparagraph (B)(i).
                    (B) Evidence.--
                            (i) In general.--In completing an export 
                        certification application with respect to an 
                        Item Requiring Export Certification that the 
                        exporter seeks to export, the exporter shall 
                        attest that, to the best of the knowledge and 
                        belief of the exporter, the exporter is not 
                        attempting to export an Item Prohibited from 
                        Exportation.
                            (ii) Sufficiency of attestation.--An 
                        attestation under clause (i) shall be 
                        considered to be sufficient evidence to support 
                        the application of the exporter under 
                        subparagraph (A)(iii)(III), on the condition 
                        that the exporter is not required to provide 
                        additional evidence under clause (iii)(I).
                            (iii) Additional requirements.--
                                    (I) In general.--The Secretary 
                                shall give notice to an exporter that 
                                submits an export certification 
                                application under subparagraph (A)(i) 
                                that the exporter is required to submit 
                                additional evidence in accordance with 
                                subclause (III) if the Secretary has 
                                determined under subparagraph (A)(ii) 
                                that the exporter made a willful or 
                                knowing false statement on the 
                                application or any past export 
                                certification application.
                                    (II) Delays or denials.--The 
                                Secretary shall give notice to an 
                                exporter that submits an export 
                                certification application under 
                                subparagraph (A)(i) that the exporter 
                                may submit additional evidence in 
                                accordance with subclause (III) if the 
                                issuance of an export certification 
                                is--
                                            (aa) delayed pursuant to 
                                        the examination by the 
                                        Secretary of the eligibility of 
                                        the Item Requiring Export 
                                        Certification for an export 
                                        certification; or
                                            (bb) denied by the 
                                        Secretary because the Secretary 
                                        determined that the Item 
                                        Requiring Export Certification 
                                        is not eligible for an export 
                                        certification under this 
                                        subsection.
                                    (III) Additional evidence.--On 
                                receipt of notice under subclause (I), 
                                an exporter shall, or on receipt of a 
                                notice under subclause (II), an 
                                exporter may, provide the Secretary 
                                with such additional evidence as the 
                                Secretary may require to establish that 
                                the Item Requiring Export Certification 
                                is eligible for an export certification 
                                under this subsection.
                    (C) Database applications.--
                            (i) In general.--The Secretary shall 
                        establish and maintain a secure central Federal 
                        database information system (referred to in 
                        this subparagraph as the ``database'') for the 
                        purpose of making export certification 
                        applications available to Indian Tribes and 
                        Native Hawaiian organizations.
                            (ii) Collaboration required.--The Secretary 
                        shall collaborate with Indian Tribes, Native 
                        Hawaiian organizations, and the interagency 
                        working group convened under section 7(a) in 
                        the design and implementation of the database.
                            (iii) Availability.--Immediately on receipt 
                        of an export certification application, the 
                        Secretary shall make the export certification 
                        application available on the database.
                            (iv) Deletion from database.--On request by 
                        an Indian Tribe or Native Hawaiian 
                        organization, the Secretary shall delete an 
                        export certification application from the 
                        database.
                            (v) Technical assistance.--If an Indian 
                        Tribe or Native Hawaiian organization lacks 
                        sufficient resources to access the database or 
                        respond to agency communications in a timely 
                        manner, the Secretary, in consultation with 
                        Indian Tribes and Native Hawaiian 
                        organizations, shall provide technical 
                        assistance to facilitate that access or 
                        response, as applicable.
                    (D) Issuance of export certification.--On receipt 
                of an export certification application for an Item 
                Requiring Export Certification that meets the 
                requirements of subparagraphs (A) and (B), if the 
                Secretary, in consultation with Indian Tribes and 
                Native Hawaiian organizations with a cultural 
                affiliation with the Item Requiring Export 
                Certification, determines that the Item Requiring 
                Export Certification is eligible for an export 
                certification under paragraph (2), the Secretary may 
                issue an export certification for the Item Requiring 
                Export Certification.
                    (E) Revocation of export certification.--
                            (i) In general.--If credible evidence is 
                        provided that indicates that an item that 
                        received an export certification under 
                        subparagraph (D) is not eligible for an export 
                        certification under paragraph (2), the 
                        Secretary may immediately revoke the export 
                        certification.
                            (ii) Determination.--In determining whether 
                        a revocation is warranted under clause (i), the 
                        Secretary shall consult with Indian Tribes and 
                        Native Hawaiian organizations with a cultural 
                        affiliation with the affected Item Requiring 
                        Export Certification.
            (4) Detention, forfeiture, repatriation, and return.--
                    (A) Detention and delivery.--The Secretary of 
                Homeland Security, acting through the Commissioner of 
                U.S. Customs and Border Protection, shall--
                            (i) detain any Item Requiring Export 
                        Certification that an exporter attempts to 
                        export or otherwise transport without an export 
                        certification; and
                            (ii) deliver the Item Requiring Export 
                        Certification to the Secretary, for seizure by 
                        the Secretary.
                    (B) Forfeiture.--Any Item Requiring Export 
                Certification that is detained under subparagraph 
                (A)(i) shall be subject to forfeiture to the United 
                States in accordance with chapter 46 of title 18, 
                United States Code (including section 983(c) of that 
                chapter).
                    (C) Repatriation or return to exporter.--
                            (i) In general.--Not later than 60 days 
                        after the date of delivery to the Secretary of 
                        an Item Requiring Export Certification under 
                        subparagraph (A)(ii), the Secretary shall 
                        determine whether the Item Requiring Export 
                        Certification is an Item Prohibited from 
                        Exportation.
                            (ii) Repatriation.--If an Item Requiring 
                        Export Certification is determined by the 
                        Secretary to be an Item Prohibited from 
                        Exportation and is forfeited under subparagraph 
                        (B), the item shall be expeditiously 
                        repatriated to the appropriate Indian Tribe or 
                        Native Hawaiian organization in accordance 
                        with, as applicable--
                                    (I) the Native American Graves 
                                Protection and Repatriation Act (25 
                                U.S.C. 3001 et seq.) (including section 
                                1170 of title 18, United States Code, 
                                as added by that Act); or
                                    (II) the Archaeological Resources 
                                Protection Act of 1979 (16 U.S.C. 470aa 
                                et seq.).
                            (iii) Return to exporter.--
                                    (I) In general.--If the Secretary 
                                determines that credible evidence does 
                                not establish that the Item Requiring 
                                Export Certification is an Item 
                                Prohibited from Exportation, or if the 
                                Secretary does not complete the 
                                determination by the deadline described 
                                in clause (i), the Secretary shall 
                                return the Item Requiring Export 
                                Certification to the exporter.
                                    (II) Effect.--The return of an Item 
                                Requiring Export Certification to an 
                                exporter under subclause (I) shall not 
                                mean that the Item Requiring Export 
                                Certification is eligible for an export 
                                certification under this subsection.
            (5) Penalties.--
                    (A) Items requiring export certification.--
                            (i) In general.--It shall be unlawful for 
                        any person to export, attempt to export, or 
                        otherwise transport from the United States any 
                        Item Requiring Export Certification without 
                        first obtaining an export certification.
                            (ii) Penalties.--Except as provided in 
                        subparagraph (D), any person who violates 
                        clause (i) shall be--
                                    (I) assessed a civil penalty in 
                                accordance with such regulations as the 
                                Secretary promulgates pursuant to 
                                section 10; and
                                    (II) subject to any other 
                                applicable penalties under this Act.
                    (B) Items prohibited from exportation.--Whoever 
                exports an Item Prohibited from Exportation without 
                first securing an export certification shall be liable 
                for a civil money penalty, the amount of which shall 
                equal the total cost of storing and repatriating the 
                Item Prohibited from Exportation.
                    (C) Use of fines collected.--Any amounts collected 
                by the Secretary as a civil penalty under subparagraph 
                (A)(ii)(I) or (B)--
                            (i) may be used by the Secretary--
                                    (I) for fines collected under 
                                subparagraph (A)(ii)(I), to process 
                                export certification applications under 
                                this subsection; and
                                    (II) for fines collected under 
                                subparagraph (B), to store and 
                                repatriate the Item Prohibited from 
                                Exportation;
                            (ii) shall supplement (and not supplant) 
                        any appropriations to the Secretary to carry 
                        out this subsection; and
                            (iii) shall not be covered into the 
                        Treasury as miscellaneous receipts.
                    (D) Voluntary return.--
                            (i) In general.--Any person who attempts to 
                        export or otherwise transport from the United 
                        States an Item Requiring Export Certification 
                        without first obtaining an export 
                        certification, but voluntarily returns the Item 
                        Requiring Export Certification, or directs the 
                        Item Requiring Export Certification to be 
                        returned, to the appropriate Indian Tribe or 
                        Native Hawaiian organization in accordance with 
                        section 6 prior to the commencement of an 
                        active Federal investigation shall not be 
                        prosecuted for a violation of subparagraph (A) 
                        with respect to the Item Requiring Export 
                        Certification.
                            (ii) Actions not commencing a federal 
                        investigation.--For purposes of clause (i), the 
                        following actions shall not be considered to be 
                        actions that commence an active Federal 
                        investigation:
                                    (I) The submission by the exporter 
                                of an export certification application 
                                for the Item Requiring Export 
                                Certification under paragraph 
                                (3)(A)(i).
                                    (II) The detention of the Item 
                                Requiring Export Certification by the 
                                Secretary of Homeland Security, acting 
                                through the Commissioner of U.S. 
                                Customs and Border Protection, under 
                                paragraph (4)(A)(i).
                                    (III) The delivery to the Secretary 
                                of the Item Requiring Export 
                                Certification by the Secretary of 
                                Homeland Security, acting through the 
                                Commissioner of U.S. Customs and Border 
                                Protection, under paragraph (4)(A)(ii).
                                    (IV) The seizure by the Secretary 
                                of the Item Requiring Export 
                                Certification under paragraph 
                                (4)(A)(ii).
            (6) Fees.--
                    (A) In general.--The Secretary may collect 
                reasonable fees to process export certification 
                applications under this subsection.
                    (B) Availability of amounts collected.--Any amounts 
                collected by the Secretary under subparagraph (A)--
                            (i) shall supplement (and not supplant) any 
                        appropriations to the Secretary for the 
                        activities described in subparagraph (A); and
                            (ii) shall not be covered into the Treasury 
                        as miscellaneous receipts.
            (7) Administrative appeal.--If the Secretary denies an 
        export certification or an Item Requiring Export Certification 
        is detained under this subsection, the exporter, on request, 
        shall be given a hearing on the record in accordance with such 
        rules and regulations as the Secretary promulgates pursuant to 
        section 10.
            (8) Training.--
                    (A) In general.--The Secretary, the Secretary of 
                State, the Attorney General, and the heads of all other 
                relevant Federal agencies shall require all appropriate 
                personnel to participate in training regarding 
                applicable laws and consultations to facilitate 
                positive government-to-government interactions with 
                Indian Tribes and Native Hawaiian Organizations.
                    (B) U.S. customs and border protection training.--
                The Secretary of Homeland Security, acting through the 
                Commissioner of U.S. Customs and Border Protection, 
                shall require all appropriate personnel of U.S. Customs 
                and Border Protection to participate in training 
                provided by the Secretary of the Interior or an Indian 
                Tribe or Native Hawaiian organization to assist the 
                personnel in identifying, handling, and documenting in 
                a culturally sensitive manner Items Requiring Export 
                Certification for purposes of this Act.
                    (C) Consultation.--In developing or modifying and 
                delivering trainings under subparagraphs (A) and (B), 
                the applicable heads of Federal agencies shall consult 
                with Indian Tribes and Native Hawaiian organizations.
    (c) Agreements to Request Return From Foreign Countries.--The 
President may request from foreign nations agreements that specify 
concrete measures that the foreign nation will carry out--
            (1) to discourage commerce in, and collection of, Items 
        Prohibited from Exportation;
            (2) to encourage the voluntary return of tangible cultural 
        heritage; and
            (3) to expand the market for the products of Indian art and 
        craftsmanship in accordance with section 2 of the Act of August 
        27, 1935 (49 Stat. 891, chapter 748; 25 U.S.C. 305a) (commonly 
        known as the ``Indian Arts and Crafts Act'').

SEC. 6. VOLUNTARY RETURN OF TANGIBLE CULTURAL HERITAGE.

    (a) Liaison.--The Secretary and the Secretary of State shall each 
designate a liaison to facilitate the voluntary return of tangible 
cultural heritage.
    (b) Trainings and Workshops.--The liaisons designated under 
subsection (a) shall offer to representatives of Indian Tribes and 
Native Hawaiian organizations and collectors, dealers, and other 
individuals and organizations trainings and workshops regarding the 
voluntary return of tangible cultural heritage.
    (c) Referrals.--
            (1) In general.--The Secretary shall refer individuals and 
        organizations to 1 or more Indian Tribes and Native Hawaiian 
        organizations with a cultural affiliation to tangible cultural 
        heritage for the purpose of facilitating the voluntary return 
        of tangible cultural heritage.
            (2) Referral representatives.--The Secretary shall compile 
        a list of representatives from each Indian Tribe and Native 
        Hawaiian organization for purposes of referral under paragraph 
        (1).
            (3) Consultation.--The Secretary shall consult with Indian 
        Tribes, Native Hawaiian organizations, and the Native working 
        group convened under section 8(a) before making a referral 
        under paragraph (1).
            (4) Third-party experts.--The Secretary may use third 
        parties with relevant expertise, including institutions of 
        higher education, museums, dealers, and collector 
        organizations, in determining to which Indian Tribe or Native 
        Hawaiian organization an individual or organization should be 
        referred under paragraph (1).
    (d) Legal Liability.--Nothing in this section imposes on any 
individual or entity any additional penalties or legal liability.
    (e) Tax Documentation.--In facilitating the voluntary return of 
tangible cultural heritage under this section, the Secretary shall 
include provision of tax documentation for a deductible gift to an 
Indian Tribe or Native Hawaiian organization, if the recipient Indian 
Tribe or Native Hawaiian organization consents to the provision of tax 
documentation.
    (f) Repatriation Under Native American Graves Protection and 
Repatriation Act.--The voluntary return provisions of this section 
shall apply to a specific item of tangible cultural heritage only to 
the extent that the repatriation provisions under section 7 of the 
Native American Graves Protection and Repatriation Act (25 U.S.C. 3005) 
do not apply to the item of tangible cultural heritage.

SEC. 7. INTERAGENCY WORKING GROUP.

    (a) In General.--The Secretary shall designate a coordinating 
office to convene an interagency working group consisting of 
representatives from the Departments of the Interior, Justice, State, 
and Homeland Security.
    (b) Goals.--The goals of the interagency working group convened 
under subsection (a) are--
            (1) to facilitate the repatriation to Indian Tribes and 
        Native Hawaiian organizations of items that have been illegally 
        removed or trafficked in violation of applicable law;
            (2) to protect tangible cultural heritage, cultural items, 
        and archaeological resources still in the possession of Indian 
        Tribes and Native Hawaiian organizations; and
            (3) to improve the implementation by the applicable Federal 
        agencies of--
                    (A) the Native American Graves Protection and 
                Repatriation Act (25 U.S.C. 3001 et seq.) (including 
                section 1170 of title 18, United States Code, as added 
                by that Act);
                    (B) the Archaeological Resources Protection Act of 
                1979 (16 U.S.C. 470aa et seq.); and
                    (C) other relevant Federal laws.
    (c) Responsibilities.--The interagency working group convened under 
subsection (a) shall--
            (1) aid in implementation of this Act and the amendments 
        made by this Act, including by aiding in--
                    (A) the voluntary return of tangible cultural 
                heritage under section 6; and
                    (B) halting international sales of items that are 
                prohibited from being trafficked under Federal law; and
            (2) collaborate with--
                    (A) the Native working group convened under section 
                8(a);
                    (B) the review committee established under section 
                8(a) of the Native American Graves Protection and 
                Repatriation Act (25 U.S.C. 3006(a));
                    (C) the Cultural Heritage Coordinating Committee 
                established pursuant to section 2 of the Protect and 
                Preserve International Cultural Property Act (Public 
                Law 114-151; 19 U.S.C. 2601 note); and
                    (D) any other relevant committees and working 
                groups.

SEC. 8. NATIVE WORKING GROUP.

    (a) In General.--The Secretary shall convene a Native working group 
consisting of not fewer than 12 representatives of Indian Tribes and 
Native Hawaiian organizations with relevant expertise, who shall be 
nominated by Indian Tribes and Native Hawaiian organizations, to advise 
the Federal Government in accordance with this section.
    (b) Recommendations.--The Native working group convened under 
subsection (a) may provide recommendations regarding--
            (1) the voluntary return of tangible cultural heritage by 
        collectors, dealers, and other individuals and non-Federal 
        organizations that hold such tangible cultural heritage; and
            (2) the elimination of illegal commerce of cultural items 
        and archaeological resources in the United States and foreign 
        markets.
    (c) Requests.--The Native working group convened under subsection 
(a) may make formal requests to initiate certain agency actions, 
including requests that--
            (1) the Department of Justice initiate judicial proceedings 
        domestically or abroad to aid in the repatriation cultural 
        items and archaeological resources; and
            (2) the Department of State initiate dialogue through 
        diplomatic channels to aid in that repatriation.
    (d) Agency and Committee Assistance.--
            (1) In general.--On request by the Native working group 
        convened under subsection (a), the agencies and committees 
        described in paragraph (2) shall make efforts to provide 
        information and assistance to the Native working group.
            (2) Description of agencies and committees.--The agencies 
        and committees referred to in paragraph (1) are the following:
                    (A) The Department of the Interior.
                    (B) The Department of Justice.
                    (C) The Department of Homeland Security.
                    (D) The Department of State.
                    (E) The review committee established under section 
                8(a) of the Native American Graves Protection and 
                Repatriation Act (25 U.S.C. 3006(a)).
                    (F) The Cultural Heritage Coordinating Committee 
                established pursuant to section 2 of the Protect and 
                Preserve International Cultural Property Act (Public 
                Law 114-151; 19 U.S.C. 2601 note).
                    (G) Any other relevant Federal agency, committee, 
                or working group.
    (e) Applicability of Federal Advisory Committee Act.--The Federal 
Advisory Committee Act (5 U.S.C. App.) shall not apply to the Native 
working group convened under subsection (a).

SEC. 9. TREATMENT UNDER FREEDOM OF INFORMATION ACT.

    (a) In General.--Except as provided in subsection (c), the 
following information shall be exempt from disclosure under section 552 
of title 5, United States Code:
            (1) Information that a representative of an Indian Tribe or 
        Native Hawaiian organization--
                    (A) submits to a Federal agency pursuant to this 
                Act or an amendment made by this Act; and
                    (B) designates as sensitive or private according to 
                Native American custom, law, culture, or religion.
            (2) Information that any person submits to a Federal agency 
        pursuant to this Act or an amendment made by this Act that 
        relates to an item for which an export certification is denied 
        under this Act.
    (b) Applicability.--For purposes of subsection (a), this Act shall 
be considered a statute described in section 552(b)(3)(B) of title 5, 
United States Code.
    (c) Exception.--An Indian Tribe or Native Hawaiian organization may 
request and shall receive its own information, as described in 
subsection (a), from the Federal agency to which the Indian Tribe or 
Native Hawaiian organization submitted the information.

SEC. 10. REGULATIONS.

    (a) In General.--Not later than 1 year after the date of enactment 
of this Act, the Secretary, in consultation with the Secretary of 
State, the Secretary of Homeland Security, and the Attorney General, 
and after consultation with Indian Tribes and Native Hawaiian 
organizations, shall promulgate rules and regulations to carry out this 
Act.
    (b) Inclusion.--The regulations promulgated by the Secretary 
pursuant to subsection (a) shall include a reasonable deadline by which 
the Secretary shall approve or deny an export certification application 
under section 5(b).

SEC. 11. AUTHORIZATION OF APPROPRIATIONS.

    There is authorized to be appropriated to carry out this Act 
$3,000,000 for each of fiscal years 2021 through 2026.

            Passed the Senate December 17, 2020.

            Attest:

                                                             Secretary.
116th CONGRESS

  2d Session

                                S. 2165

_______________________________________________________________________

                                 AN ACT

 To enhance protections of Native American tangible cultural heritage, 
                        and for other purposes.