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

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116th CONGRESS
  1st Session
                                S. 2165

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


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 18, 2019

Mr. Heinrich (for himself, Ms. Murkowski, Ms. Baldwin, Mr. Daines, Mr. 
   Schatz, Ms. McSally, Mr. Udall, and Mr. Lankford) introduced the 
 following bill; which was read twice and referred to the Committee on 
                             Indian Affairs

_______________________________________________________________________

                                 A BILL


 
 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 2019''.

SEC. 2. PURPOSE.

    It is the purpose of this Act--
            (1) to carry out the United States trust responsibility 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 the Native 
        American Graves Protection and Repatriation Act), in order to 
        strengthen deterrence;
            (3) to make internationally applicable 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 the Native American Graves Protection and Repatriation 
        Act), the Archaeological Resources Protection Act of 1979 (16 
        U.S.C. 470aa et seq.), and the Antiquities Act under section 
        1866(b) of title 18, United States Code, to facilitate the 
        international repatriation of Native American cultural items, 
        Native American archaeological resources, and Native American 
        objects of antiquity;
            (4) to access other countries' domestic laws and law 
        enforcement mechanisms to facilitate international repatriation 
        by explicitly prohibiting the exportation of Native American 
        cultural items obtained 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 the Native American Graves Protection and Repatriation 
        Act), Native American archaeological resources obtained in 
        violation of the Archaeological Resources Protection Act of 
        1979 (16 U.S.C. 470aa et seq.), and Native American objects of 
        antiquity obtained in violation of the Antiquities Act under 
        section 1866(b) of title 18, United States Code, and by 
        creating an export certification system;
            (5) to confirm the authority of the President to request 
        from foreign nations agreements or provisional measures under 
        the Convention on the Means of Prohibiting and Preventing the 
        Illicit Import, Export, and Transfer of Ownership of Cultural 
        Property (823 U.N.T.S. 231 (1972)), to facilitate the return of 
        Native American cultural items obtained 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 the Native American Graves 
        Protection and Repatriation Act), Native American 
        archaeological resources obtained in violation of the 
        Archaeological Resources Protection Act of 1979 (16 U.S.C. 
        470aa et seq.), and Native American objects of antiquity 
        obtained in violation of the Antiquities Act under section 
        1866(b) of title 18, United States Code;
            (6) to establish a Federal framework in order to support 
        individuals' and organizations' voluntary return of items of 
        tangible cultural heritage, which need not be obtained 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 the Native 
        American Graves Protection and Repatriation Act), the 
        Archaeological Resources Protection Act of 1979 (16 U.S.C. 
        470aa et seq.), or the Antiquities Act under section 1866(b) of 
        title 18, United States Code;
            (7) to establish an interagency working group to ensure 
        communication between all Federal agencies to successfully 
        implement 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 the Native 
        American Graves Protection and Repatriation Act), the 
        Archaeological Resources Protection Act of 1979 (16 U.S.C. 
        470aa et seq.), and the Antiquities Act under section 1866(b) 
        of title 18, United States Code;
            (8) to establish a Tribal working group to provide 
        recommendations regarding implementation 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 the Native American Graves Protection and Repatriation 
        Act), the Archaeological Resources Protection Act of 1979 (16 
        U.S.C. 470aa et seq.), and the Antiquities Act under section 
        1866(b) of title 18, United States Code; and
            (9) to create a Freedom of Information Act exemption for 
        information submitted by Indian Tribes pursuant to this Act.

SEC. 3. DEFINITIONS.

    In this Act, the following definitions apply:
            (1) Cultural affiliation.--The term ``cultural 
        affiliation'' has the meaning given the term in section 2 of 
        the Native American Graves Protection and Repatriation Act (25 
        U.S.C. 3001).
            (2) Indian tribe.--The term ``Indian Tribe''--
                    (A) 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); and
                    (B) includes ``Native Hawaiian organization'' as 
                that term is defined in section 2 of the Native 
                American Graves Protection and Repatriation Act (25 
                U.S.C. 3001).
            (3) Item requiring export certification.--The term ``Item 
        Requiring Export Certification'' means--
                    (A) a Native American ``cultural item'' as defined 
                in section 2 of the Native American Graves Protection 
                and Repatriation Act (25 U.S.C. 3001);
                    (B) a Native American ``archaeological resource'' 
                as defined in section 3 of the Archaeological Resources 
                Protection Act of 1979 (16 U.S.C. 470bb); or
                    (C) a Native American ``object of antiquity'' 
                within the meaning of section 1866(b) of title 18, 
                United States Code.
            (4) Item prohibited from exportation.--The term ``Item 
        Prohibited from Exportation'' means--
                    (A) a Native American ``cultural item'' as defined 
                in section 2 of the Native American Graves Protection 
                and Repatriation Act (25 U.S.C. 3001) and obtained 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 the Native American Graves Protection and 
                Repatriation Act);
                    (B) a Native American ``archaeological resource'' 
                as defined in section 3 of the Archaeological Resources 
                Protection Act of 1979 (16 U.S.C. 470bb) and obtained 
                in violation of the Archaeological Resources Protection 
                Act of 1979 (16 U.S.C. 470aa et seq.);
                    (C) a Native American ``object of antiquity'' 
                within the meaning of and obtained in violation of the 
                Antiquities Act under section 1866(b) of title 18, 
                United States Code; or
                    (D) a Native American ``cultural item'' as defined 
                in section 2 of the Native American Graves Protection 
                and Repatriation Act (25 U.S.C. 3001), Native American 
                ``archaeological resource'' as defined in section 3 of 
                the Archaeological Resources Protection Act of 1979 (16 
                U.S.C. 470bb), or Native American ``object of 
                antiquity'' within the meaning of the Antiquities Act 
                under section 1866(b) of title 18, United States Code, 
                that is under active Federal investigation.
            (5) Native american.--The term ``Native American''--
                    (A) has the meaning given the term in section 2 of 
                the Native American Graves Protection and Repatriation 
                Act (25 U.S.C. 3001); and
                    (B) includes ``Native Hawaiian'' as that term is 
                defined in section 2 of the Native American Graves 
                Protection and Repatriation Act (25 U.S.C. 3001).
            (6) Secretary.--The term ``Secretary'' means the Secretary 
        of the Interior.
            (7) 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 by 
striking ``5 years'' each place it appears and inserting ``10 years''.

SEC. 5. EXPORT PROHIBITION AND CERTIFICATION SYSTEM AND INTERNATIONAL 
              AGREEMENTS.

    (a) Export Prohibitions.--
            (1) In general.--It shall be unlawful for any person to 
        export or otherwise transport from the United States any Item 
        Prohibited from Exportation.
            (2) Penalties.--Any person who violates paragraph (1) shall 
        be fined in accordance with section 3571 of title 18, United 
        States Code, and shall be imprisoned for not more than 1 year 
        for a first violation and not more than 10 years for a second 
        or subsequent violation.
    (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 shall, in 
                consultation with Indian Tribes, publish in the Federal 
                Register a notice that includes--
                            (i) a description of characteristics 
                        typical of Items Requiring Export 
                        Certification, which shall be sufficiently 
                        specific and precise to ensure an export 
                        certification is required only of such Items 
                        Requiring Export Certification and that fair 
                        notice is given to exporters and other persons 
                        as to which items require an export 
                        certification under this paragraph; 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 
                        paragraph, which shall--
                                    (I) clarify that objects made for 
                                commercial purposes generally do not 
                                qualify as an Item Requiring Export 
                                Certification; and
                                    (II) clarify that in some 
                                circumstances receipts or 
                                certifications issued by Indian Tribes 
                                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 not an Item Prohibited from 
        Exportation and is therefore eligible for an export 
        certification if it is not under ongoing Federal investigation 
        and it--
                    (A) was not obtained within the time and location 
                provenance parameters 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 the Native American Graves 
                Protection and Repatriation Act), the Archaeological 
                Resources Protection Act of 1979 (16 U.S.C. 470aa et 
                seq.), or the Antiquities Act under section 1866(b) of 
                title 18, United States Code, and the export of the 
                Item Requiring Export Certification would not otherwise 
                violate any other provision of law;
                    (B) 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) or section 
                320302 of title 54, United States Code, or 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, and the export of the Item Requiring 
                Export Certification would not otherwise violate any 
                other provision of law; or
                    (C) is accompanied by written confirmation from an 
                Indian Tribe that 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), or that the Indian Tribe has relinquished 
                title or control, as provided for in section 3 of the 
                Native American Graves Protection and Repatriation Act 
                (25 U.S.C. 3002), of the Item Requiring Export 
                Certification, and the export of the Item Requiring 
                Export Certification would not otherwise violate any 
                other provision of law.
            (3) Export certification application and issuance 
        procedures.--
                    (A) Applying for export certification.--
                            (i) Attestation.--
                                    (I) In general.--With respect to 
                                each Item Requiring Export 
                                Certification to be exported from the 
                                United States, the exporter shall make 
                                an attestation (on an attestation form 
                                described in subclause (III)) that, to 
                                the best of the exporter's knowledge 
                                and belief, the exporter is not 
                                exporting an Item Prohibited from 
                                Exportation.
                                    (II) Consequences of false 
                                statement.--Any willful or knowing 
                                false statement made on an attestation 
                                form under subclause (I) shall--
                                            (aa) subject the exporter 
                                        to criminal penalties pursuant 
                                        to section 1001 of title 18, 
                                        United States Code; and
                                            (bb) prohibit the exporter 
                                        from receiving an export 
                                        certification for any Item 
                                        Requiring Export Certification 
                                        through attestation alone in 
                                        the future.
                                    (III) Attestation form.--An 
                                attestation form shall describe and 
                                provide pictures of each Item Requiring 
                                Export Certification. The Secretary 
                                shall consult with Indian Tribes in 
                                designing the attestation form.
                            (ii) Additional evidence.--If attestation 
                        alone is no longer permitted or an export 
                        certification is delayed or denied, notice 
                        shall be given to the exporter, who may provide 
                        the Secretary with evidence to establish that 
                        the Item Requiring Export Certification is not 
                        an Item Prohibited from Exportation.
                    (B) Availability of applications.--The Secretary 
                shall make each export certification application 
                available to Indian Tribes via a secure website 
                immediately after each export certification application 
                has been submitted.
                    (C) Issuance of export certification.--The 
                Secretary, in consultation with Indian Tribes, may 
                issue an export certification for an Item Requiring 
                Export Certification that is not an Item Prohibited 
                from Exportation and is therefore eligible for export.
                    (D) Revocation of export certification.--If 
                credible evidence is provided that indicates an item 
                that received an export certification qualifies as an 
                Item Prohibited from Exportation, the Secretary may 
                immediately revoke the export certification. In making 
                a determination about whether revocation is warranted, 
                Indian Tribes shall be consulted.
            (4) Seizure, forfeiture, and return.--
                    (A) Seizure.--Any Item Requiring Export 
                Certification that an exporter attempts to export 
                without an export certification shall be subject to 
                seizure by the U.S. Customs and Border Protection.
                    (B) Forfeiture.--An item found to qualify as an 
                Item Prohibited from Exportation shall be forfeited, 
                consistent with chapter 46 of title 18, United States 
                Code, to the Federal Government and repatriated to the 
                Indian Tribe pursuant to the process provided for under 
                the law under which it is found to be obtained in 
                violation.
                    (C) Return to exporter.--An Item Requiring Export 
                Certification that is seized under subparagraph (A) for 
                which credible evidence does not establish within 60 
                days that it is an Item Prohibited from Exportation 
                shall be returned to the exporter but shall not receive 
                an export certification at that time.
            (5) Administrative appeal.--If the Secretary denies an 
        export certification or seizes an Item Requiring Export 
        Certification under this subsection, the exporter shall upon 
        request be given a hearing on the record under such rules and 
        regulations as the Secretary may promulgate.
            (6) Fees.--Reasonable fees may be collected for the 
        processing of export certification applications under this 
        subsection.
            (7) 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 to identify Items 
        Requiring Export Certification for purposes of this Act and the 
        amendment made by this Act. Indian Tribes shall be consulted in 
        developing and delivering such trainings.
            (8) Voluntary return.--Whoever seeks to export an Item 
        Requiring Export Certification without a required export 
        certification but voluntarily returns it to the Indian Tribe 
        with a likely cultural affiliation prior to active Federal 
        investigation shall not be prosecuted for such violation with 
        respect to the Item Requiring Export Certification. The 
        exporter's application to obtain an export certification does 
        not qualify as triggering an active Federal investigation.
    (c) Agreements To Request Return From Foreign Countries.--The 
President is authorized to request from a State Party agreements or 
provisional measures pursuant to the Convention on the Means of 
Prohibiting and Preventing the Illicit Import, Export, and Transfer of 
Ownership of Cultural Property (823 U.N.T.S. 231 (1972)), subject to 
the limitations of Articles 6 and 9, under which the President may 
request the return from the State Party of Items Prohibited from 
Exportation.
    (d) Rules and Regulations.--All rules and regulations necessary and 
appropriate to carry out the provisions of this section shall be 
prescribed by the Secretary and shall be made in consultation with 
Indian Tribes.

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 individuals listed in subsection 
(a) shall hold trainings and workshops for representatives of Indian 
Tribes and collectors, dealers, and other individuals and organizations 
regarding the voluntary return of tangible cultural heritage.
    (c) Referrals.--
            (1) In general.--The Secretary shall refer individuals and 
        organizations to one or more Indian Tribes with a likely 
        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 for purposes 
        of referral under paragraph (1).
            (3) Consultation.--The Secretary shall consult with Indian 
        Tribes before making a referral under paragraph (1).
            (4) Third-party experts.--The Secretary may utilize third 
        parties with relevant expertise, including universities, 
        museums, dealers, collector organizations, and others, in 
        making determinations regarding to which Indian Tribe an 
        individual or organization should be referred under paragraph 
        (1).
    (d) Legal Liability.--This section shall not impose additional 
penalties or legal liability.
    (e) Tax Documentation.--The Secretary's voluntary return 
facilitation shall include provision of tax documentation for a 
deductible gift to an Indian Tribe.
    (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 such item of tangible cultural heritage.

SEC. 7. INTERAGENCY WORKING GROUP.

    (a) In General.--The Secretary shall 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 working group are--
            (1) to facilitate repatriation to Indian Tribes of items 
        that have been illegally removed or trafficked in violation of 
        law;
            (2) to protect such items still in Indian Tribes' 
        possession; and
            (3) to improve Federal agencies' implementation 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 the Native American Graves 
        Protection and Repatriation Act), the Archaeological Resources 
        Protection Act of 1979 (16 U.S.C. 470aa et seq.), the 
        Antiquities Act under section 1866(b) of title 18, United 
        States Code, and other relevant laws.
    (c) Responsibilities.--The interagency working group shall aid in 
implementation of other provisions of this Act or the amendments made 
by this Act, including regarding voluntary return and halting 
international sales, and shall collaborate with the Tribal working 
group created pursuant to this Act.

SEC. 8. TRIBAL WORKING GROUP.

    (a) In General.--The Secretary shall convene a Tribal working group 
consisting of representatives of Indian Tribes to advise the Federal 
Government.
    (b) Recommendations.--The Tribal 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 in the United 
        States and foreign markets.
    (c) Requests.--The Tribal working group convened under subsection 
(a) may make formal requests to initiate certain agency actions, 
including--
            (1) requesting the Department of Justice initiate judicial 
        proceedings domestically or abroad to aid in repatriation; and
            (2) requesting the Department of State initiate dialogue 
        through diplomatic channels to aid in repatriation.
    (d) Agency and Committee Assistance.--
            (1) In general.--The agencies and committees described in 
        paragraph (2) shall provide information and assistance to the 
        Tribal working group convened under subsection (a) upon request 
        by the Tribal working group.
            (2) Agencies and committees.--The agencies and committees 
        described in this paragraph 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 Native American Graves Protection and 
                Repatriation Review Committee established under section 
                8 of the Native American Graves Protection and 
                Repatriation Act (25 U.S.C. 3006).
                    (F) Any other relevant Federal agency.

SEC. 9. FREEDOM OF INFORMATION ACT EXEMPTIONS.

    (a) In General.--Except as provided in subsection (b), information 
that a representative of an Indian Tribe submits to any Federal agency 
pursuant to this Act, or any amendment made by this Act, shall qualify 
for exemption from disclosure under the Freedom of Information Act 
pursuant to section 552(b)(3) of title 5, United States Code.
    (b) Exception.--An Indian Tribe may request and shall receive its 
own information, as described in subsection (a), from the Federal 
agency to which it submitted its information.
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