[Senate Hearing 114-535]
[From the U.S. Government Publishing Office]





                                                        S. Hrg. 114-535
 
                 THE THEFT, ILLEGAL POSSESSION, SALE, 
             TRANSFER, AND EXPORT OF TRIBAL CULTURAL ITEMS

=======================================================================

                             FIELD HEARING

                               before the

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                    ONE HUNDRED FOURTEENTH CONGRESS

                             SECOND SESSION

                               __________

                            OCTOBER 18, 2016

                               __________

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                      COMMITTEE ON INDIAN AFFAIRS

                    JOHN BARRASSO, Wyoming, Chairman
                   JON TESTER, Montana, Vice Chairman
JOHN McCAIN, Arizona                 MARIA CANTWELL, Washington
LISA MURKOWSKI, Alaska               TOM UDALL, New Mexico
JOHN HOEVEN, North Dakota            AL FRANKEN, Minnesota
JAMES LANKFORD, Oklahoma             BRIAN SCHATZ, Hawaii
STEVE DAINES, Montana                HEIDI HEITKAMP, North Dakota
MIKE CRAPO, Idaho
JERRY MORAN, Kansas
     T. Michael Andrews, Majority Staff Director and Chief Counsel
       Anthony Walters, Minority Staff Director and Chief Counsel
       
       
       
       
                            C O N T E N T S

                              ----------                              
                                                                   Page
Field hearing held on October 18, 2016...........................     1
Statement of Senator Udall.......................................     1
Statement of Senator Heinrich....................................     3

                               Witnesses

Andrews-Maltais, Cheryl, Senior Advisor to the Assistant 
  Secretary--Indian Affairs, U.S. Department of the Interior.....     5
    Prepared statement...........................................     8
Begaye, Hon. Russell, President, Navajo Nation...................    36
    Prepared statement...........................................    38
Keeler, Honor, Director, International Repatriation Project, 
  Association on American Indian Affairs.........................    47
    Prepared statement...........................................    49
Riley, Hon. Kurt, Governor, Pueblo of Acoma......................    27
    Prepared statement...........................................    29
Rodriguez, Waldemar, Special Agent In Charge, Homeland Security 
  Investigations, El Paso, U.S. Immigrations and Customs 
  Enforcement, U.S. Department of Homeland Security..............    17
    Prepared statement...........................................    18
Schaaf, Gregory, Ph.D., Historian; Professor of Native American 
  Studies, University of California (Retired)....................    40
    Prepared statement...........................................    43
Taplin, Mark, Principal Deputy Assistant Secretary, Bureau of 
  Educational and Cultural Affairs...............................    14
    Prepared statement...........................................    16
Torres, Hon. E. Paul, Governor, Pueblo of Isleta.................    34
Toulou, Tracy, Director, Office of Tribal Justice, U.S. 
  Department of Justice..........................................    10
    Prepared statement...........................................    12

                                Appendix

Armijo, Hon. Myron, Governor, Pueblo of Santa Ana, prepared 
  statement......................................................    68
Chavarria, Hon. J. Michael, Governor, Santa Clara Pueblo, 
  prepared statement.............................................    69
Gallegos, Robert V., from Albuquerque, NM, prepared statement....    71
Molloy, John, President, Antique Tribal Art Dealers Association, 
  prepared statement.............................................    59
Owens, Jim, from Corrales, NM, prepared statement................    74
Yepa, Hon. David R., Governor, Pueblo of Jemez...................    72


  THE THEFT, ILLEGAL POSSESSION, SALE, TRANSFER, AND EXPORT OF TRIBAL 
                             CULTURAL ITEMS

                              ----------                              


                       TUESDAY, OCTOBER 18, 2016


                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                   Albuquerque, NM.
    The Committee met, pursuant to notice, at 10:16 a.m. at the 
Indian Pueblo Cultural Center, Hon. Tom Udall, presiding.

             OPENING STATEMENT OF HON. TOM UDALL, 
                  U.S. SENATOR FROM NEW MEXICO

    Senator Udall. Good morning, and I call this hearing to 
order. Today the Committee will hold an oversight hearing on 
the theft, illegal possession, sale and transfer and export of 
tribal cultural items.
    And I would, first of all, just like to welcome everybody 
to Albuquerque, especially our out-of-state visitors, and 
welcome to Indian Country. And I'd like to thank the Pueblo 
Governors for hosting us here at the beautiful Indian Pueblo 
Cultural Center.
    I felt it was very important to have this discussion in New 
Mexico. We are home to 23 tribes. And I'm very pleased that we 
were able to hold this important hearing here, with as many 
tribal leaders in attendance.
    I also would like to thank my colleague, Senator Heinrich, 
for joining me today. Senator Heinrich has been working very 
hard on this issue. I appreciate his work. And I appreciate his 
leadership. And I appreciate our partnership on this topic.
    In New Mexico, we have a rich cultural history rooted in 
Native American tradition. It is the bedrock of who we are as 
New Mexicans.
    We celebrate Native American culture in our food, language, 
architecture, and art. We even celebrate the contributions of 
New Mexico's Native Americans in Washington.
    New Mexico is represented in the Capitol building by a 
statue of Po'Pay, the Tewa religious leader from Ohkay Owingeh 
Pueblo who led the Pueblo revolt of 1680. The statue is one of 
two selected by the New Mexico State Legislature to be 
displayed in Washington.
    Although we celebrate our Native American contributions to 
our culture and heritage, we also must work together to address 
challenges facing Indian Country.
    We must do more to provide an excellent education and 
quality health care for our tribal members. And we must help 
tribes protect their cultural identity, by preserving Native 
languages tribal languages, tribal religion, and lands.
    I take my responsibility for representing Indian Country in 
Washington very seriously. I work hard to facilitate a 
government-to-government relationship, and to help preserve 
cultural identity for future generations of tribal members.
    That is why we are all very disturbed about the ongoing 
problems posed by the theft and sale of cultural items. Over 
many years, people have looted and sold important tribal 
artifacts for financial gain.
    Looters have even taken the human remains of the ancestors 
of many tribal members across the country.
    Over the last 30 years or so, we have become more aware of 
this problem. And we have made meaningful progress to pass laws 
to stop it, like the Native American Graves Repatriation Act, 
and the Archaeological Resources Protection Act, which have 
built on what was done with the Antiquities Act.
    But the problem still exists. The enforcement of those laws 
has not been strong enough. Some people are exploiting the 
loopholes in our current laws, laws that are meant to stop the 
theft of important cultural items. And they have exported 
deeply important sacred objects to other countries, to be sold 
as art.
    These items are not pieces of art--they are spiritual 
objects--deeply important for tribal identity. And we need to 
put a stop to the trafficking of these objects.
    In the Senate, I introduced a resolution that strongly 
condemns the theft, illegal possession or sale and export of 
tribal cultural items.
    It calls on Federal agencies to take affirmative action to 
stop the aforementioned practices, and to work to secure 
repatriation of tribal cultural items back to the tribes.
    It also encourages state and local governments, along with 
groups and organizations, to work cooperatively to deter these 
practices.
    My resolution is the companion to a House resolution 
introduced by Congressman Steve Pearce. We successfully passed 
it out of the Senate with minor changes. And I hope that we'll 
see it finalized quickly in November when we return for the 
lame-duck session.
    I also join Senator Heinrich on his legislation, the 
Safeguard Tribal Objects of Patrimony Act, the STOP Act. It 
would prohibit the exporting of sacred Native American items 
and increase penalties for stealing and illegally trafficking 
tribal patrimony.
    This is an important piece of legislation. I appreciate his 
leadership. I hope it will provide the agencies the tools they 
need to prevent the export of sacred objects and items of 
cultural patrimony.
    I will work with this Committee to make sure this 
legislation gets a hearing soon. Earlier this year, I raised 
this issue with Secretary Jewell. I asked for the Department of 
Interior to work on this issue as part of its trust 
responsibility. Secretary Jewell assured me that the 
administration is committed to dealing with this problem. And 
she highlighted her efforts with her French counterparts.
    We have reason for hope, with an example involving the 
Pueblo of Acoma.
    An upcoming auction of the Acoma Shield in Paris was 
canceled after outreach to the auction house and the French 
government by myself, Senator Heinrich, and other U.S. 
government officials, including Secretary Jewell.
    This is a problem that affects all of us, and we need to 
work collectively to put a stop to it.
    This hearing is an opportunity to discuss the issue, to 
talk about its impact on tribal communities, and to discuss 
what the Federal Government can do to put a stop to the theft 
and sale of important tribal cultural items. My hope is that 
this hearing will shine a light on this problem, and result in 
strong action on this very important issue.
    And, again, I appreciate the administration and other 
witnesses for working with us on this issue, and would like to 
turn it over to Senator Heinrich for his opening statement.

              STATEMENT OF HON. MARTIN HEINRICH, 
                  U.S. SENATOR FROM NEW MEXICO

    Senator Heinrich. Thank you, Senator Udall. Good morning, 
everybody. I want to say how much I appreciate all of you being 
here this morning. And I take great pride in working with New 
Mexico's tribal communities. I want to especially thank my 
colleague, Senator Udall, for his really critical leadership on 
this issue, and the Senate Indian Affairs Committee on which he 
sits, for holding this field hearing on tribal patrimony.
    This is an issue that I have heard raised far too many 
times from too many tribes and pueblos here in the state of New 
Mexico, and from around the nation.
    I also want to say thank you to the Indian Pueblo Cultural 
Center for hosting this important conversation, this hearing, 
and thank all of our witnesses for traveling here today and for 
your testimony, especially, our tribal leaders from New Mexico, 
including President Russell Begay of the Navajo Nation, 
Governor Paul Torres of Isleta Pueblo, and Governor Kurt Riley 
of the Pueblo of Acoma.
    Earlier this year, when looking through a list of tribal 
artifacts up for bid at an art auction house in Paris, the 
Pueblo of Acoma discovered that the Acoma shield, a sacred 
ceremonial object, had been stolen and was about to be sold to 
the highest bidder. The word I've actually heard used by many 
of the tribal members in our audience to describe this, they 
used the word, ``ransom.''
    After Acoma Governor Kurt Riley notified me of this sale, I 
wrote letter to Secretary of State John Kerry, urging that the 
U.S. State Department take all possible action to help 
repatriate the shield and other stolen cultural items to 
American Indian tribes.
    Thankfully, in this particular case, intense public outcry, 
and diplomatic pressure were enough to postpone the illegal 
sale of the tribe's cultural patrimony. And the U.S. Department 
of Justice has issued a warrant to retrieve the Shield from 
France.
    This is incredibly welcome news. But the Shield has still 
not been recovered from Paris. And in hundreds of other cases, 
tribes across the nation have been unable to stop similar theft 
and sale of their priceless religious and cultural items in 
international markets.
    Under Federal law, it's a crime to steal and sell these 
types of Native American and cultural items.
    Unfortunately, the penalties in the Native American Graves 
Protection and Repatriation Act are not as high as other 
similar Federal statutes, like the National Stolen Property 
Act.
    Therefore, prosecutions are too infrequent to deter 
criminals from smuggling and selling these objects.
    And there is no explicit ban on exporting these items to 
foreign countries, where they might be sold at auction.
    Just last month, I attended the White House Tribal Nation 
Conference, which brought together tribal leaders from the 567 
federally recognized tribes.
    These conferences have been important opportunities to 
bring tribal leaders together and I called on the next 
administration to continue this tradition. It was an honor to 
attend this year's conference and have the opportunity to 
listen to tribal leaders and to discuss issues critical to 
Indian Country, including the STOP Act.
    The STOP Act is a bill that I introduced to prohibit the 
exporting of sacred Native American items, increase penalties 
for stealing and illegally trafficking tribal cultural 
patrimony.
    The STOP Act will also create a tribal working group to 
help Federal agencies better understand the scope of the 
problem, and how we can work together to solve it.
    I'm proud of my work with tribes in New Mexico and across 
Indian Country to craft this legislation.
    And I'm thankful to Senator Udall for his cosponsorship and 
his incredible leadership on the resolution that the Senate 
recently passed. I announced the bill's introduction alongside 
tribal leaders here at the Indian Pueblo Cultural Center in 
Albuquerque and on Capitol Hill in July.
    I'm pleased that the STOP Act has been endorsed by the 
Navajo Nation, the Jicarilla, Mescalero, and San Carlos Apache 
Nations, the Pueblos of Acoma, Santa Ana, Isleta, Zuni, Laguna, 
Nambe, Jemez and Ohkay Owingeh, as well as the All Pueblo 
Council of Governors, the Eight Northern Indian Pueblos 
Council, the National Congress of American Indians, the United 
South and Eastern Tribes Sovereignty Protection Fund, and most 
recently, the National Parks and Conservation Association.
    I'm also proud to welcome growing bipartisan support for 
this legislation in the United States Senate. Senators Jeff 
Flake, Tom Udall, John McCain, Jon Tester, Lisa Murkowski, 
Steve Daines, Brian Schatz, Cory Gardner, and Michael Bennett, 
have all signed on as cosponsors of this legislation.
    This hearing on the bill is an important step for us to 
take to continue to build a momentum towards passing this into 
law. And I'm very grateful for the witnesses here from Federal 
agencies who will tell us about their work to protect and 
repatriate tribal patrimony, and I look forward to hearing from 
them about additional tools that would aid them in those 
efforts.
    While we must improve Federal law to create stronger legal 
deterrence, we also need to change the hearts and minds of art 
collectors and dealers who may have engaged in this activity.
    The STOP Act includes an immunity period for collectors who 
may have illegal items in their possession to voluntarily 
repatriate those items to the tribes without the threat of 
prosecution.
    All of us recognize the incredible beauty of Native 
American art, especially when you're from a place like New 
Mexico, where you can explore and admire the remnants of 
ancient wonders in places like Chaco Canyon and the Gila Cliff 
Dwellings, and discover the traditional and modern art 
masterpieces created by our contemporary Native artists.
    But we can also recognize a clear difference between 
supporting tribal artists or collecting artifacts ethically and 
legally as opposed to dealing or exporting items that tribes 
have identified as essential and sacred pieces of their 
cultural heritage.
    We all need to take all possible action to stop the latter 
and to help repatriate stolen culturally significant items to 
their rightful owners.
    Thank you.
    Senator Udall. Senator Heinrich, thank you for that 
excellent statement, and we will now hear from our first panel 
of witnesses. Ms. Cheryl Andrews-Maltais, Senior Advisor to the 
Assistant Secretary of Indian Affairs, at the U.S. Department 
of the Interior; Mr. Tracy Toulou, Director of the Office of 
Tribal Justice at the U.S. Department of Justice; Mr. Mark 
Taplin, Principal Deputy Assistant Secretary, Bureau of 
Educational and Cultural Affairs the U.S. Department of State; 
Mr. Waldemar Rodriguez, Special Agent in Charge, Homeland 
Security Investigations, Immigrations and Customs Enforcement 
at the U.S. Department Homeland Security in El Paso, Texas.
    And I want to remind witnesses that your full written 
testimony will be made a part of the official hearing record.
    Please keep your statements to five minutes so that we may 
have time for questions.
    And I look forward to hearing your testimony, beginning 
with Ms. Maltais. Please proceed.

          STATEMENT OF CHERYL ANDREWS-MALTAIS, SENIOR 
   ADVISOR TO THE ASSISTANT SECRETARY--INDIAN AFFAIRS, U.S. 
                   DEPARTMENT OF THE INTERIOR

    Ms. Andrews-Maltais. Thank you. And good morning, Senator 
Heinrich and Senator Udall, and members of the Committee that 
are here.
    My name is Cheryl Andrews-Maltais, and I am the Senior 
Advisor to the Assistant Secretary for Indian Affairs. I'd like 
to thank you for holding this field hearing, for the 
opportunity to provide testimony before the Committee on the 
theft, illegal possession, sale, transfer, and export of tribal 
cultural items.
    As we know, the United States Trust responsibility includes 
providing for the education, health, and overall well-being of 
tribes. We'd like to acknowledge that this field hearing 
demonstrates a true commitment to that responsibility and we 
sincerely thank you.
    By way of background, I'm the former chairwoman of my 
tribe, as well as the former tribal historic preservation 
officer responsible for our cultural resources and 
repatriation.
    American Indian cultural traditions and heritage is the 
foundation of our identity. It defines tribes as distinct 
peoples and is a vital link to the tribal community, spiritual 
help, and well-being.
    Too many tribes' ancestors' human remains, associated 
funerary items, sacred items, sacred items, and items of 
cultural patrimony or tribal cultural heritage, is being held 
in museums or sold or traded in the open and black markets, 
both domestically and abroad.
    This is having a devastating effect on tribes, as well as 
affecting our future generations. When we say ``cultural 
heritage,'' we mean not only the ancestors' funerary items, and 
sacred items, and items of cultural patrimony, but also the 
relationship of these items to the community, both tangible and 
intangible.
    Tribal cultural heritage belongs to the tribal community of 
its origin as a whole. And by tribal custom, cannot be 
alienated from that community by any individual or group 
without the expressed free, prior, and informed consent of that 
tribe.
    No individual person in a group has a right to possess, 
transfer, trade, tribal cultural heritage. And to do so is 
against tribal customs, and practices, and laws.
    Unfortunately, tribal cultural appropriation and a desire 
for the collection of items that are uniquely Indian and have 
had cultural significance to tribes, has become a very 
lucrative industry. These influences have opened the door for 
illegal activities regarding the acquisition, transfer, and 
sale of these items.
    They are being stolen on a regular basis, and are turning 
up on the Internet, in auction houses, both domestically and 
abroad, as well as in private collections.
    This activity must be stopped, and we are committed to 
doing that.
    The Department is committed to combating the theft and 
illegal possession, sale, and transfer, as well as export of 
cultural items. And also committed to helping tribes repatriate 
their cultural heritage from abroad.
    For instance, there are ancestors still being held in 
museums in foreign countries, despite repeated requests from 
the tribes as well. And also including when the tribes have the 
assistance of the United States Government, we're still finding 
challenges.
    Additionally, since 2013, there have been a series of sales 
by Paris auction houses involving tribal cultural heritage, 
including sacred items. At the request of the tribes, and in 
some cases, the Federal Government has intervened with the 
auction houses and the government.
    We have seen some progress, but continue to face many 
challenges.
    We've assisted the Department of State with efforts to 
raise awareness of the sensitivities of these items with the 
museums, auction houses, and foreign governments, and the 
public at large. However, more work is needed to be done.
    As noted in my testimony, in December of 2015, Secretary 
Jewell met with France's Minister of Justice to seek 
cooperation in preventing such sales, and to begin a dialogue 
to repatriate these sacred items back to their proper homes.
    This past May, she issued a public statement objecting to a 
scheduled auction of cultural items, and called upon the French 
government to work with the United States government and tribes 
to address the problem.
    Illustrating the challenges before us, only this last May, 
did a tribe succeed in delaying the sale of an item of concern. 
However, it's our understanding, another auction is scheduled 
for December.
    In light of these continued activities, Secretary Jewell 
has instructed the Department to coordinate with tribes and 
other Federal agencies to review the circumstances by which 
sacred items and other important tribal cultural patrimony are 
making their way into foreign markets, and to explore ways of 
improving Federal support for tribes' repatriation efforts.
    To this end, in addition to several listening sessions, the 
Department has launched government-to-government consultations 
with tribes on international repatriation issues, beginning at 
the White House Tribal Nations Conference in Washington D.C., 
and a second session was last week at the National Congress of 
American Indians in Phoenix, Arizona.
    Additional sessions are planned for October 21st at the 
annual convention of Alaska Federation of Natives, in 
Fairbanks, Alaska. And October 26th, at the United South & 
Eastern Tribes meeting in Cherokee.
    I'm pleased to report that other Federal agencies, such as 
the Department of State and Justice are involved in this 
process.
    We're seeking input, ideas, information, and views relating 
to Native American tribal cultural heritage, as well as that of 
the Native Hawaiians.
    Thus far, the tribes have provided some consistent comments 
and ideas at our listening sessions and consultation, which 
include the creation of a formal multi-agency task force or 
working group to address this issue, changing the definition 
regarding ownership improvidence in favor of the tribes, 
seeking bilateral agreements with key foreign countries, 
developing a tool kit for tribes to know how to access U.S. 
assistance, developing a guidance publication for customs 
officials and foreign governments to help them recognize 
potentially sensitive items, as well as very importantly 
raising the sensitivity and public awareness about the 
difference between tribal cultural heritage and authentic 
artworks produced and marketed for sales by artisans, who are 
members of federally-recognized tribes.
    We realize that this is a very complicated issue requiring 
a multi-faceted and interagency approach. All tribes are unique 
and have their own cultural beliefs, traditions, and practices 
relative to their cultural heritage. We understand there's no 
magic bullet or a one size fits all remedy. However, working 
together with the tribes and other agencies, and the Committee 
collectively, I'm confident that we can find a solution to this 
problem.
    Thank you very much for the opportunity to offer a 
statement, and I'm happy to answer any questions you may have.
    [The prepared statement of Ms. Andrews-Maltais follows:]

  Prepared Statement of Cheryl Andrews-Maltais, Senior Advisor to the 
  Assistant Secretary--Indian Affairs, U.S. Department of the Interior
    Senator Heinrich and Senator Udall, and members of the Committee, 
my name is Cheryl Andrews-Maltais, and I am the Senior Advisor to the 
Assistant Secretary for Indian Affairs at the Department of the 
Interior (Department). Thank you for holding this field hearing and for 
the opportunity to provide testimony before this Committee on the 
``Theft, Illegal Possession, Sale, Transfer and Export of Tribal 
Cultural Items.''
    Tribal cultural heritage is at the heart of tribal identity. When 
we say ``cultural heritage'' we mean not only the Ancestors, funerary 
items, sacred items, and items of cultural patrimony but also the 
relationships of these items to the community, both tangible and 
intangible. Native American cultural roots are America's deepest 
cultural roots. In the words of the National Historic Preservation Act, 
this heritage gives spirit and direction to tribes and to America.
    Tribal cultural heritage belongs to the tribal community of its 
origin as a whole and must not be alienated from that community by any 
individual or group without the expressed prior and informed consent of 
that tribe. No individual person or group has a right to possess, 
transfer, or trade tribal cultural heritage and to do so is against 
tribal customs, practices, and laws.
    Unfortunately cultural appropriation and a desire for the 
collection of items that are uniquely Indian and have cultural 
significance to tribes has become a very lucrative industry. These 
influences have opened the door for illegal activities regarding the 
acquisition, transport, and sale of tribal cultural heritage. Tribal 
cultural heritage is being stolen on a regular basis and is turning up 
on the Internet, in auction houses both domestically and in foreign 
countries, and in private collections.
    The Department is committed to combatting the theft, illegal 
possession, sale, and transfer of tribal cultural heritage. We are also 
committed to combatting the export of illicitly acquired cultural items 
and to helping tribes repatriate their cultural heritage from abroad.
    A number of tribes have cultural heritage of concern housed in 
foreign museums or being sold in foreign markets. For instance, since 
2013 there have been a series of sales by Paris auction houses 
involving tribal cultural heritage, including sacred items. At the 
request of concerned tribes, the Federal Government has intervened with 
the auction houses and the French government in a number of these 
cases.
    We have assisted the Department of State with efforts to raise 
awareness of the sensitivity of these items with auction houses, the 
French government, and the public. In December 2015, Secretary of the 
Interior Sally Jewell met with France's Minister of Justice to seek 
cooperation in preventing such sales and working to repatriate these 
sacred items back to their proper homes. And this past May, Secretary 
Jewell issued a public statement objecting to a scheduled auction of 
cultural items, noting that ``[a]uctioning off tribal sacred objects is 
extremely troubling not only because tribal law precludes the sale of 
these objects by individuals, but because items held by a dealer or 
collector are likely the result of wrongful transfer and may be for 
sale illegally.'' She called upon the French government to work with 
the United States government and with tribes to address this problem. 
Illustrating the challenges before us, only this past May did a tribe 
succeed in delaying the sale of an item of concern.
    In light of the continuing sales and holdings of tribal cultural 
heritage in foreign museums, Secretary Jewell has instructed Department 
staff to cooperate with tribes and other federal agencies, including 
the Departments of State, Homeland Security, and Justice, to review the 
circumstances by which sacred items and other important tribal cultural 
patrimony are making their way into foreign markets, and explore ways 
of improving federal support for tribes' efforts at repatriation. 
Within the Department, many offices and bureaus have responsibilities 
relating to this effort, including not only the Office of the Assistant 
Secretary for Indian Affairs but also the Office of International 
Affairs, Office of the Solicitor, the National Native American Graves 
Protection and Repatriation Act (NAGPRA) Program and the cultural 
resources and law enforcement staff of the land management agencies.
    To this end, in addition to several listening sessions, the 
Department has launched government-to-government consultations with 
tribes on international repatriation issues. The first session was held 
September 27, 2016, at the White House Tribal Nations Conference in 
Washington, D.C. and we conducted the second last week at the Annual 
Convention of the National Congress of American Indians in Phoenix, AZ. 
Additional sessions are planned for October 21, 2016, at the annual 
convention of the Alaska Federation of Natives in Fairbanks, AK, and 
October 26, 2016, at the meeting of the United South & Eastern Tribes 
in Cherokee, NC. I am happy to report that other federal agencies, such 
as the Departments of State, and Justice, are involved in this process. 
We are seeking input, ideas, information and views relating broadly to 
Native American cultural heritage, including that of Native Hawaiians.
    Examples of ideas under discussion that have been raised during 
these sessions include: seeking bilateral agreements with key foreign 
countries; developing a guidance publication for customs officials and 
foreign governments to help them recognize potentially sensitive items; 
and raising public sensitivity and awareness about the difference 
between tribal cultural heritage and authentic artworks produced and 
marketed for sale by artists who are members of federally-recognized 
tribes.
    An essential element to combat this cultural heritage theft is 
vigorous enforcement of laws such as NAGPRA and ARPA. As an example, in 
2009, federal law enforcement partners (Bureau of Land Management, 
Federal Bureau of Investigation, U.S. Marshals) concluded a two-year 
undercover operation that rounded up a ring of archeological grave 
robbers who looted pristine sites in the Southwest, desecrated ancient 
American Indian burials and stole priceless artifacts, selling them to 
dealers and collectors who were associated with the network. 
Departmental law enforcement worked with the Department of Justice to 
prosecute those found guilty of violating cultural heritage laws.
    At that time this was the United States' largest investigation of 
archeological and cultural artifact thefts. The investigation involved 
officers from BLM, FBI, and the U.S. Marshals, who were joined by local 
and state law enforcement partners. These agencies executed nearly two 
dozen search warrants in four states resulting in the indictment of 
approximately 30 individuals from Utah, New Mexico, and Colorado. 
During the undercover investigations, just over 250 stolen artifacts 
were trafficked, with an estimated value exceeding $335,000, including 
decorated pottery, burial and ceremonial masks, a buffalo headdress, 
and ancient sandals known to be associated with Native American 
burials.
    The then-Assistant Secretary for Indian Affairs, Larry Echo Hawk, 
said at the time that ``[l]ooters robbing tribal communities of their 
cultural patrimony is a major law enforcement issue for federal 
agencies enforcing historic preservation laws in Indian Country,'' and 
the ``action should give American Indians and Alaska Natives assurance 
that the Obama Administration is serious about preserving and 
protecting their cultural property.''
    The ring was charged with multiple counts of violating ARPA and 
NAGPRA as well as theft of government property, depredation of 
government property, and theft of Indian tribal property. Nearly all of 
the defendants pled guilty to charges, and as a condition of the plea 
agreements, relinquished their Native American artifacts collections. 
Approximately 40,000 artifacts were recovered. However, no one was 
required to serve any jail time.
    Through our ongoing outreach, listening sessions and consultations 
on international repatriation of tribal cultural items, the Federal 
Government is receiving and sharing information about existing training 
and models. For example, after receiving information from the Grand 
Ronde Tribe about how Oregon State Police are trained in looting and 
trafficking to improve apprehension and prosecution, that information 
was referred to Department of Justice training officials to incorporate 
into their materials. The Department also continues to provide training 
on compliance and enforcement of NAGPRA and ARPA internally and with 
other federal agencies.
    It is also important to improve public awareness of why it is not 
only illegal to remove or traffic in cultural items and archeological 
resources, but also morally wrong. Examples of efforts to build 
awareness include a full-day seminar titled ``Going Home: 25 Years of 
Repatriation Under the National Museum of the American Indian (NMAI) 
Act,'' at the Smithsonian's National Museum of the American Indian on 
November 19, 2014. And more recently, in May 2016, the National Museum 
of the American Indian hosted a panel discussion and press conference 
in advance of a May 2016 Paris auction that included tribal cultural 
items and received great media coverage. The art and museum communities 
are, as a general matter, more sensitive to the special nature of 
Native American cultural items and the constraints of federal law, but 
even within the museum and collections community there is a need to 
continually reinforce the strict requirement that no items with unknown 
provenance or title should be sold or brought into a collection, for 
any reason.
    Currently, our best enforcement mechanisms to prevent theft, 
illegal possession, sale, transfer and export of cultural patrimony 
within the United States are ARPA, the Antiquities Act and NAGPRA.
    We are exploring ways for the Department and Federal Government as 
a whole to strengthen the implementation of both ARPA and NAGPRA to 
protect tribal cultural items to the fullest extent under existing law. 
These efforts could include, for example:

   Creating more regular training opportunities for federal law 
        enforcement officers, prosecutors, and customs agents on 
        NAGPRA, ARPA, and the Antiquities Act, as well as the 
        application of laws against theft and depredation of federal or 
        Indian property;

   Requiring more robust and frequent training for federal 
        archeologists on the preparation of damage assessment reports;

   Providing additional training for Customs officers on the 
        recognition of Native American cultural property;

   Using tribal monitors on federal lands to provide an 
        additional level of protection for archeological sites, and the 
        overall increased capacity for federal agencies to monitor 
        archeological sites on public lands;

   Developing a special panel or federal-tribal task force to 
        evaluate the issue of international and domestic repatriation 
        challenges and develop specific regulatory language and 
        recommendations.

    Additionally, the Department would like to work with the Committee 
to explore ways to address the limitations in treatment of Native 
American cultural heritage. Examples include:

   Exploring new ways for repatriating Native American or 
        Native People's worldwide items of cultural heritage, and 
        requiring documentation for items identified as potentially 
        sacred;

   Working with the Department of State to explore potential 
        ways that tribes could be empowered to address international 
        repatriation issues; and

   Providing legal protection from disclosure of sensitive 
        information that is provided by tribes to support the 
        investigation and repatriation of culturally sensitive items.

Conclusion
    Thank you for providing the Department the opportunity to provide a 
statement on ``The Theft, Illegal Possession, Sale, Transfer and Export 
of Tribal Cultural Items.'' I am available to answer any questions the 
Committee may have.

    Senator Udall. Thank you very much, Mr. Maltais, and please 
proceed, Mr. Toulou.

STATEMENT OF TRACY TOULOU, DIRECTOR, OFFICE OF TRIBAL JUSTICE, 
                   U.S. DEPARTMENT OF JUSTICE

    Mr. Toulou. Good morning, Senator Udall and Senator 
Heinrich.
    Senator Udall. Good morning.
    Senator Heinrich. Good morning.
    Mr. Toulou. My name is Tracy Toulou, and I'm the Director 
of the Office of Tribal Justice at the Department of Justice. 
I'm also a proud Lobo, and I'm happy to be in Albuquerque 
today. It's great to be back.
    Senator Udall. Welcome back.
    Mr. Toulou. Thank you.
    Senator Heinrich. Welcome back.
    Mr. Toulou. The Department of Justice appreciates the 
opportunity to appear before you today to discuss the theft, 
illegal possession, sale, transfer, and export of tribal 
cultural items, and the Department's effort to combat these 
activities and protect Native American cultural resources.
    In the audience is my colleague, Damon Martinez, a United 
States Attorney for the District of New Mexico. His office is 
exemplary in the work on these important issues, as they are in 
all issues that occur in Indian Country.
    Unfortunately, there's a long history of looting Native 
American cultural sites and theft of Native American cultural 
resources. Congress has passed various laws in an attempt to 
stop the looting and the thefts. But I thank you for holding 
this hearing today because there is so much work to be done.
    The first significant Federal statute signed to protect 
archaeological and Native American culture resources was the 
Antiquities Act of 1906.
    After decades of looting, desecration and destruction of 
Native American sites in the southwest, such as Chaco Canyon, 
the Antiquities Act was passed, in part, as an attempt to 
protect these sites. However, the ability of the United States 
to prosecute offenses under the Antiquities Act was 
significantly Impacted in the 1970s, when the Ninth Circuit 
questioned portions of the Act.
    Because of the Ninth Circuit's decision, additional 
legislation was deemed necessary.
    In 1979, Congress passed the Archaeological Resources 
Protection Act, or ARPA, which strengthened the preservation 
purposes of the Antiquity Act in several ways.
    More importantly, ARPA provided more robust civil, 
criminal, and felony prosecution options. An ARPA violation can 
either be a felony or a misdemeanor, and it can be pursued 
civilly when appropriate.
    However, for ARPA to apply, it must involve an 
archeological resource more than a hundred years old. And with 
the exception of one of the trafficking provisions that applies 
to violations of state and local law, the theft or looting must 
occur on public land for ARPA jurisdiction to attach. Such 
lands, include Indian lands held in trust by the United States 
and Indian lands subject to restriction against alienation 
imposed by the United States.
    Although, ARPA increased protection to archeological and 
historical sites, it left a hole in the protection of Native 
American human remains and associated funerary objects that 
were less than a hundred years old or were not found on Federal 
land.
    To address the gap with regards to human remains, Congress 
passed the Native American Graves Protection and Repatriation 
Act of 1990, or NAGPRA.
    Most of NAGPRA establishes procedures for the return of 
human remains, funerary objects, sacred objects, and items of 
cultural patrimony from museum collections to their Native 
American descendants.
    However, Section 4 of NAGPRA amended the United States 
Criminal Code and created sanctions for illegal trafficking in 
Native American human remains and cultural items. The penalties 
for trafficking are similar to those for violating ARPA. And 
NAGPRA includes penalties for a trafficker who knowingly sells, 
purchases, uses for profits, or transports for sale or profit, 
any Native American cultural items obtained in violation of the 
Act.
    Sentencing guidelines provides an enhancement for cultural 
heritage resource crimes.
    Some examples of successful prosecutions that the United 
States has brought pursuant to these statutes are for damaging 
and removing archeological resources from a historic Yakama 
Nation site, for the removal of petroglyphs from a sacred 
worship site of the Southern Paiute Tribe, located on Federal 
lands.
    And I would also like to highlight the work of the U.S. 
Attorney's Office here in New Mexico for obtaining a guilty 
plea for a felony violation of ARPA against an individual who 
excavated and removed several pieces of Mimbres pottery from 
BLM lands.
    Despite these successes, there's still some challenges that 
the Department faces when prosecuting these cases.
    One of the major barriers we face is the vast amount of 
acreage that needs monitoring on a regular basis. And the law 
enforcement resources are spread so thin in many of the hardest 
hit areas.
    In addition, because most of these laws apply only to 
objects taken from Federal lands or tribal lands, there are 
often challenges proving where the theft occurred.
    The Acts also require the United States to prove the 
defendant was aware of the facts and circumstances that 
constitute the crime.
    In some circuits, it means that proving the defendant knew 
the item was an archeological resource and illegally excavated. 
This is a significant challenge in many cases where the 
cultural items may have passed through the possession of 
several different people, and there's difficulty in proving 
that the current possessor knew of the illegal conduct.
    Finally, all three Acts are prospective laws which 
generally apply only to actions after their passage.
    I want to close by quoting from former Senator Domenici's 
statement at the 1979 Senate ARPA hearing.
    ``In recent years, the rise in prices of prehistoric Indian 
artifacts and other archeological resources have created a 
large international demand. Professional looters have been 
active in the southwest and elsewhere pirating these on public 
lands, and in some cases with bulldozers. Virtually tens of 
thousands of dollars worth of artifacts have been taken from 
public lands in New Mexico. Mimbres pots are being illegally 
dug out on consignment and sold on the international art 
market.''
    Unfortunately, the prices have only risen since the 1978 
hearing.
    But more importantly, beyond any dollar value is the 
incredibly important religious, spiritual, and cultural 
importance of these items.
    I applaud the efforts of Congress and the leadership of the 
New Mexico delegation on these important issues over the 
decades. But as the recent international auctions demonstrate, 
there is significant challenges yet to come, and we hope to 
work with Congress as you address those challenges.
    Thank you.
    [The prepared statement of Mr. Toulou follows:]

Prepared Statement of Tracy Toulou, Director, Office of Tribal Justice, 
                       U.S. Department of Justice
    Senators Udall and Heinrich, my name is Tracy Toulou and I am the 
Director of the Office of Tribal Justice at the United States 
Department of Justice. The Department of Justice appreciates the 
opportunity to appear before you today to discuss the ``Theft, Illegal 
Possession, Sale, Transfer, and Export of Tribal Cultural Items'' and 
the Department's efforts to combat these activities and protect Native 
American cultural resources. In the audience is my colleague Damon 
Martinez, the United States Attorney for the District of New Mexico, 
whose office is exemplary in their work on these important issues and 
on all Indian country issues.
    Unfortunately, there is a long history of looting Native American 
cultural sites and theft of Native American cultural resources. 
Congress has passed various laws in an attempt to stop the looting and 
the thefts, but I thank you for holding this hearing because there is 
still work to be done.
    The first significant Federal statute designed to protect 
archaeological and Native American cultural resources is the 
Antiquities Act of 1906. After decades of looting, desecration, and 
destruction of Native American sites in the Southwest, such as Chaco 
Canyon, the Antiquities Act was passed in part as an attempt to protect 
these sites. However, the ability of the United States to prosecute 
offenses under the Antiquities Act was significantly curtailed by the 
Ninth Circuit in the 1970s. An individual who stole several items, 
including twenty-three masks, from a medicine man's cave on the San 
Carlos Apache Indian Reservation was prosecuted under the criminal 
provisions of the Antiquities Act. The masks had been made a few years 
earlier and left in the cave as part of an Apache religious ceremony, 
but were considered to be objects of antiquity because they were part 
of the long-standing religious and social traditions of the Tribe. The 
Act did not define the term, however, and the Ninth Circuit found it to 
be unconstitutionally vague because the defendant had no notice that a 
relatively new object could be considered an antiquity. Because of the 
Ninth Circuit's decision, additional legislation was deemed necessary.
    In 1979 Congress passed the Archaeological Resources Protection 
Act, or ARPA, which strengthened the preservation purposes of the 
Antiquities Act in several ways. Most importantly, ARPA provided more 
robust civil and criminal felony prosecution options. An ARPA violation 
can be either a felony or a misdemeanor and it can be pursued civilly 
when deemed appropriate. However, for ARPA to apply, it must involve an 
archaeological resource more than 100 years old, and with the exception 
of one of the trafficking provisions that applies to violations of 
state and local law, the theft or looting must occur on public lands 
for ARPA jurisdiction to attach. Such lands include Indian lands held 
in trust by the United States and Indian lands subject to the 
restriction against alienation imposed by the United States.
    Although ARPA increased protection to archeological and historical 
sites, it left a hole in the protection of Native American human 
remains and associated funerary objects that were less than 100 years 
old and not found on federal land. To address the gap with regards to 
human remains, Congress passed the Native American Graves Protection 
and Repatriation Act of 1990, or NAGPRA. Most of NAGPRA establishes 
procedures for the return of human remains, funerary objects, sacred 
objects, and items of cultural patrimony from museum collections to 
their representative Native American descendants. However, section 4 of 
NAGPRA amended the United States Criminal Code and created sanctions 
for the illegal trafficking in Native American human remains and 
cultural items. The penalties for trafficking are similar to those for 
violating ARPA, and NAGPRA includes penalties for a trafficker who 
``knowingly sells, purchases, uses for profit, or transports for sale 
or profit any Native American cultural items obtained in violation of'' 
the Act. Sentencing guidelines provide an enhancement for cultural 
heritage resource crimes.
    Some examples of successful prosecutions that the United States has 
brought pursuant to these statutes are for damaging and removing 
archeological resources from an historic Yakama Nation site, for the 
selling and transporting for sale of an Ancestral Puebloan cloud blower 
pipe, which was removed from public lands, and for the removal of a 
petroglyph from a sacred worship site of the Southern Paiute located on 
federal land. And I would like to highlight the work of the U.S. 
Attorney's Office here in New Mexico for obtaining a guilty plea for 
felony violations of ARPA against an individual who excavated and 
removed several pieces of Mimbres pottery from BLM lands.
    Despite these successes, there are still some challenges that the 
Department faces when prosecuting these cases. One of the major 
barriers that we face is the amount of acreage that needs monitoring on 
a regular basis is so vast and law enforcement resources spread so thin 
that many of the hardest-hit areas remain vulnerable. In addition, 
because most of these laws apply only to objects taken from federal or 
tribal lands, there are often challenges proving where the theft 
occurred. The Acts also require the United States to prove that the 
defendant was aware of the facts and circumstances that constitute the 
crime. In some Circuits, this may mean proving that the defendant knew 
that the item was an archaeological resource and illegally excavated. 
This is a significant challenge in many cases where the cultural item 
may have been passed into the possession of several different people 
and there is difficulty in proving that the current possessor knew of 
the illegal conduct. Finally, all three of the Acts are prospective 
laws which generally apply only to actions after their passage. The 
result is that the United States cannot prosecute the theft of the 
masks stolen from the San Carlos Apache Reservation that I mentioned at 
the beginning of my statement.
    I want to close by quoting from former Senator Domenici's statement 
at the 1979 Senate ARPA hearing:

         ``In recent years, the rise in prices of prehistoric Indian 
        artifacts and other archeological resources has created a large 
        international demand. Professional looters have been active in 
        the southwest and elsewhere pirating these sites on public 
        lands, in some cases with bulldozers. Virtually tens of 
        thousands of dollars worth of artifacts have been taken from 
        public lands in New Mexico. Mimbres pots are being illegally 
        dug out on consignment and sold in the international art 
        market.''

    Unfortunately, the prices have only risen since that 1979 hearing. 
But beyond any dollar value is the religious and cultural importance of 
these items. I applaud the efforts of Congress and the leadership of 
the New Mexico delegation on these important issues over the decades, 
but as the recent international auctions demonstrate, there are still 
significant challenges and we hope to work with Congress in addressing 
those challenges. Thank you.

    Senator Udall. Thank you, Mr. Toulou, very much, and thank 
you for reminding me that the U.S. Attorney is here, Damon 
Martinez. I believe he's sitting right over here. I think you 
have reminded us, and his presence here, of the powerful 
message that is sent with the prosecution because I've served 
in the U.S. Attorney's Office for three years, late 1970s, 
early 1980s, and prosecutions were brought under ARPA, and I 
think they send a very strong message.
    Please proceed, Mr. Taplin.

          STATEMENT OF MARK TAPLIN, PRINCIPAL DEPUTY 
ASSISTANT SECRETARY, BUREAU OF EDUCATIONAL AND CULTURAL AFFAIRS

    Mr. Taplin. Good morning, Senator Udall, Senator Heinrich, 
members of the Committee. Thank you for the opportunity to 
appear today to discuss the State Department's diplomatic role 
in advocating for the recovery and repatriation of Native 
American cultural items, including items of special cultural 
and religious significance to U.S. tribes that are offered for 
commercial sale overseas.
    I am delighted to be part of a panel featuring 
representatives from our principal Federal Government partners 
in defending the interests of Native American tribes overseas. 
And I'm honored to meet and hear from tribal leaders and other 
Native American representatives who are here today.
    The challenge of recovering important tribal cultural items 
and repatriating them, whenever possible, to tribal custody, is 
a subject of importance to all of us who care about preserving 
and protecting our own country's cultural heritage in all of 
its richness and diversity.
    Traditionally, the State Department's emphasis in cultural 
heritage matters has been centered on helping other countries 
better preserve and protect their own cultural patrimony. The 
United States is an acknowledged leader internationally in this 
area.
    And under the 1983 Conventional and Cultural Property 
Implementation Act, the CCPIA, the United States has entered 
into some 15 bilateral agreements that create import 
restrictions on categories of cultural property from other 
countries, and whose cultural heritage is under threat from 
pillage and trafficking.
    And we negotiate and implement these cultural property 
agreements in close partnership with the Departments of 
Treasury and Homeland Security, which have authority over, 
respectively, the imposition and enforcement of import 
restrictions in the United States.
    We have cultural property agreements today with countries 
ranging from Italy, Greece, and China, to Mali, Guatemala and 
Cambodia.
    A common element of all our partnerships is our steadfast 
efforts to block the illegal importation into the United States 
of their irreplaceable cultural property. But what of the loss 
of our own cultural Heritage? And especially the endangered 
heritage of U.S. tribes. What can we at the State Department do 
to counter the trade and commercialization of U.S. tribal items 
in oversees markets?
    This issue has been put into sharp relief since 2013 by a 
series of commercial auctions of Native American sacred items 
in Paris such as the Pueblo of Acoma Shield, which attracted 
considerable diplomatic and media attention earlier this year 
and resulted in the Shield being pulled from the auction.
    The sales have put on the auction block hundreds of items 
representing the tribal patrimony of numerous U.S. tribes.
    These auctions have rightfully raised an outcry 
internationally, and even within France, but have continued 
periodically despite our best diplomatic efforts.
    The Department of State, in close coordination with the 
affected tribes, their legal representatives, and the 
Department of Interior, has encouraged consultation between 
private auction houses in Paris and tribal representatives in 
advance of these auctions.
    But, unfortunately, in many cases, the auction houses have 
not engaged in meaningful prior consultation about the 
provenance of culturally significant items prior to offering 
them for sale.
    In March of this year, the State Department proposed to the 
French government the formation of a bilateral working group to 
identify legal and policy issues, in both countries, that could 
be addressed in order to restrict and finally bring to an end 
this ongoing commercialization of U.S. tribal items.
    We've raised the issue with French interlocutors at various 
levels, and I'm pleased to announce--and this is not reflected 
in the written testimony--that we heard yesterday from our 
Embassy in Paris, that France has agreed to a first working 
group meeting at the end of this month.
    Meanwhile, we intend to remain vocal about our concerns, as 
we have been on other occasions on behalf of U.S. tribal 
interests, and to encourage others in the United States and 
internationally to speak out.
    In particular, we believe that the voices of Native 
American tribal leaders, and their representatives, are 
especially compelling, including with foreign audiences, which 
admire Native American culture and support repatriating these 
items to the tribes themselves.
    We appreciate the interest and support of Congress in 
working with the Department of State to highlight our shared 
concerns about the importance of protecting cultural heritage. 
Raising international awareness of U.S. tribal concerns about 
cultural heritage, and repatriation issues at every opportunity 
and through active public diplomacy, remains a key part of our 
strategy.
    I want to assure you the State Department will continue to 
play a strong role on behalf of U.S. tribes in advocating for 
the recovery and repatriation of tribal cultural items 
illegally trafficked overseas. And, likewise, we remain 
committed to looking for ways to strengthen our links to U.S. 
tribes and Native American institutions, directly and as 
participants in ongoing consultative bodies chaired by other 
U.S. Federal agencies.
    So, again, thank you for this opportunity. I look forward 
to answering your questions.
    [The prepared statement of Mr. Taplin follows:]

     Prepared Statement of Mark Taplin, Principal Deputy Assistant 
         Secretary, Bureau of Educational and Cultural Affairs
    Senator Udall, Senator Heinrich and members of the Committee--thank 
you for the opportunity to appear today to discuss the State 
Department's diplomatic role in advocating for the recovery and 
repatriation of Native American cultural items, including items of 
special cultural and religious significance to U.S. tribes that are 
offered for commercial sale overseas.
    I am delighted to be part of a panel featuring representatives from 
our principal Federal Government partners in defending the interests of 
Native American tribes overseas. I am honored to meet and hear from 
tribal leaders and other Native American representatives who are here 
today. The challenge of recovering important tribal cultural items and 
repatriating them, whenever possible, to tribal custody is a subject of 
importance to all of us who care about preserving and protecting our 
own country's cultural heritage, in all of its richness and diversity.
    Traditionally, the State Department's emphasis in cultural heritage 
matters has been centered on helping other countries better preserve 
and protect their own cultural patrimony. As a State Party to the 1970 
UNESCO Convention on the Means of Prohibiting and Preventing the 
Illicit Import, Export and Transfer of Ownership of Cultural Property 
(or ``the 1970 UNESCO Convention''), the United States is an 
acknowledged leader internationally in this area. Under the 1983 
implementing legislation--the Convention on Cultural Property 
Implementation Act (the CCPIA)--the United States has entered into some 
15 bilateral agreements that create import restrictions on categories 
of cultural property from other countries and whose cultural heritage 
is under threat from pillage and trafficking.
    We negotiate and implement these cultural property agreements in 
partnership with the Departments of Treasury and Homeland Security, 
which have authority over, respectively, the imposition and enforcement 
of import restrictions in the United States. We have cultural property 
agreements today with countries ranging from Italy, Greece and China to 
Mali, Guatemala and Cambodia. A common element of all our partnerships 
is our steadfast efforts to block the illegal importation into the 
United States of their irreplaceable cultural property.
    Under the CCPIA, including through the work of the Presidentially 
appointed Cultural Property Advisory Committee, we strive to balance 
the interests and equities of a wide range of stakeholders, including 
archaeologists, museums and the private art market. We believe that 
fostering this type of balanced discussion of stakeholder interests 
should remain a key feature of the U.S. approach to cultural property 
protection, whether overseas or in the United States itself.
    But what of the loss of our own cultural heritage, and especially 
the endangered heritage of U.S. tribes? What can we at the State 
Department do to counter the trade and commercialization of U.S. tribal 
items in overseas markets?
    This issue has been put into sharp relief since 2013 by a series of 
commercial auctions of Native American sacred items in Paris, such as 
the Pueblo of Acoma shield, which attracted considerable diplomatic and 
media attention earlier this year, and resulted in the shield being 
pulled from the auction. The sales have put on the auction block 
hundreds of items representing the cultural patrimony of numerous U.S. 
tribes. These auctions have rightfully raised an outcry 
internationally--and even within France--but have continued 
periodically despite our best diplomatic efforts.
    The Department of State, in close coordination with the affected 
tribes, their legal representatives, and the Department of Interior, 
has encouraged consultation between private auction houses in Paris and 
tribal representatives in advance of these auctions. Unfortunately, in 
many cases the auction houses have not engaged in meaningful prior 
consultation about the provenance of culturally significant items prior 
to offering them for sale. Legal challenges to the sale of Native 
American sacred items are difficult matters, involving an attempt to 
recreate transfers that may have taken place decades ago. To date we do 
not have a successful record.
    In March of this year, the State Department proposed to the French 
government the formation of a bilateral working group to identify legal 
and policy issues, in both countries, that could be addressed in order 
to restrict and finally bring to an end this ongoing commercialization 
of U.S. tribal items. We continue to raise the issue with French 
interlocutors at various levels and are hopeful for a reply soon.
    While we are waiting for a reply, we intend to remain vocal about 
our concerns--as we have been on other occasions on behalf of U.S. 
tribal interests--and to encourage others in the United States and 
internationally to speak out. In particular, we believe that the voices 
of Native American tribal leaders and their representatives are 
especially compelling, including with foreign audiences which admire 
Native American culture and support repatriating these items to the 
tribes themselves. Similarly, we appreciate the interest and support of 
Congress in working with the Department of State to highlight our 
shared concerns about the importance of protecting cultural heritage. 
Raising international awareness of U.S. tribal concerns about cultural 
heritage and repatriation issues at every opportunity and through 
active public diplomacy remains a key part of our strategy.
    Thank you again for inviting me to testify today. I want to assure 
you that the State Department will continue to play a strong role on 
behalf of U.S. tribes in advocating for the recovery and repatriation 
of tribal cultural items illegally trafficked overseas. Likewise, we 
remain committed to looking for ways to strengthen our links to U.S. 
tribes and Native American institutions, directly and as participants 
in ongoing consultative bodies chaired by other U.S. federal agencies.
    I look forward to answering your questions.

    Senator Udall. Thank you very much, Mr. Taplin. Please 
proceed, Mr. Rodriguez.

   STATEMENT OF WALDEMAR RODRIGUEZ, SPECIAL AGENT IN CHARGE, 
HOMELAND SECURITY INVESTIGATIONS, EL PASO U.S. IMMIGRATIONS AND 
                   CUSTOMS ENFORCEMENT, U.S. 
                DEPARTMENT OF HOMELAND SECURITY

    Mr. Rodriguez. Thank you, Chairman Udall, Senator Heinrich, 
and other members of the Committee. Thank you for the 
opportunity to appear before you today to discuss the efforts 
of U.S. immigration and customs enforcement to protect cultural 
and religious items, property, art and antiquities, and 
mitigate their illicit trafficking both into and out of the 
United States.
    As the Department of Homeland Security's principal 
investigative agency, ICE's position to leverage has brought 
statutory authority to investigate a wide range of domestic and 
international activities arising from illegal movement of 
people, goods, and money with a nexus to the borders of the 
United States.
    Federal customs law regarding smuggling and trafficking, as 
well as customs border search authority, provide ICE Homeland 
Security Investigations, with the capability and responsibility 
to take a leading role in investigating crimes involving the 
import and distribution of stolen or looted cultural property, 
and prosecuting those individuals and organizations responsible 
for these crimes.
    ICE is the lead investigative agency for illegal import and 
export of cultural property. And, for example, if--as an 
example, if customs officers were to discover that tribal 
cultural items were transported into or out of the United 
States in violation of existing import or export law, I would 
have authority and jurisdiction to conduct that investigation.
    However, ICE would not typically be the lead investigatory 
agency for the theft and illegal transport of tribal cultural 
items within the United States.
    These investigations can result in complex cases involving 
multiple domestic and international ICE offices, that can last 
for years.
    For example, one of ICE's largest ongoing cultural property 
investigations, hidden idols, began in 2007 and has resulted in 
the seizure of more than $150 million in artifacts.
    In fiscal year 2015, ICE worked 239 domestic and 102 
international cultural property investigations.
    To conduct these complex investigations, ICE may 
collaborate with tribal, Federal, state and local law 
enforcement, private institutions, and foreign governments. ICE 
also has the ability to work directly with cultural resources 
practitioners to support this collaborative institution.
    ICE established the Cultural Property, Art and Antiquities 
Program, the CPAA program, to oversee efforts related to the 
protection of cultural property. The program conducts training 
on the preservation, protection and investigation of cultural 
heritage and property, coordinates and supports investigations 
involving the illicit trafficking of cultural properties from 
countries around the world, and facilitate the repatriation of 
illicit cultural items seized as a result of HSI Investigations 
to the artifacts' lawful owners.
    These investigations often result in the forfeiture of 
cultural property, which must be repatriated to its lawful 
owners through a legal forfeiture process.
    The CPAA program oversees the cultural repatriation, which 
can be a small exchange after the legal process is completed, 
or it can include a grand ceremony that commemorates the item's 
return at the country's Embassy or even within the country 
itself.
    Although most of ICE's cultural repatriations has stemmed 
from investigations related to import or export, the 
repatriation of seized and forfeited tribal cultural and 
religious items could occur within tribal customs and 
traditions. Whatever the venue, returning a piece of a 
country's history and heritage to its people is a celebration 
and an event in which ICE is particularly proud to participate.
    Since 2007, ICE has repatriated more than 7,750 items to 
more than 30 countries.
    In closing, ICE remains committed to working with this 
Committee and tribal governments to continue our strong 
relationship going forward to help prevent and combat the 
illicit trafficking of tribal cultural and religious items.
    Thank you again for your continued--for the opportunity to 
testify here today, and for your continued support of ICE and 
its law enforcement mission. I would be pleased to answer any 
questions.
    [The prepared statement of Mr. Rodriguez follows:]

  Prepared Statement of Waldemar Rodriguez, Special Agent In Charge, 
   Homeland Security Investigations, El Paso, U.S. Immigrations and 
       Customs Enforcement, U.S. Department of Homeland Security
Introduction
    Chairman Barrasso, Vice Chairman Tester, Senator Udall, Senator 
Heinrich, and distinguished Members of the Committee:
    Thank you for the opportunity to appear before you today to discuss 
the efforts of U.S. Immigration and Customs Enforcement (ICE) to 
protect cultural and religious items, property, art and antiquities, 
and mitigate their illicit trafficking both into and out of the United 
States.
    As the largest investigative agency within the U.S. Department of 
Homeland Security (DHS), ICE investigates a wide range of domestic and 
international activities arising from the illegal movement of people, 
goods, and money with a nexus to the borders of the United States. 
Federal customs law regarding smuggling and trafficking, as well as 
customs border search authority provide ICE Homeland Security 
Investigations (HSI) with the capability and responsibility to take a 
leading role in investigating crimes involving the import and 
distribution of stolen or looted cultural property, and prosecuting 
those individuals and organizations responsible for these crimes.
    ICE is the lead federal investigative agency with respect to export 
enforcement due to its jurisdiction over the investigation of crimes 
related to the U.S. border. However, investigations into the export of 
Tribal cultural items present challenges due to limitations on existing 
authorities and enforcement resources. To conduct its complex 
investigations, ICE may collaborate with Tribal, Federal, State and 
local law enforcement, private institutions, and foreign governments. 
ICE has the ability to work directly with cultural resources 
practitioners to support these collaborative investigations.
ICE's Cultural Property, Art and Antiquities (CPAA) Program
    ICE has established the Cultural Property, Art and Antiquities 
(CPAA) program to oversee efforts related to the protection of cultural 
property. The mission of the CPAA program is three-fold: conduct 
training on the preservation, protection, and investigation of cultural 
heritage and property; coordinate and support investigations involving 
the illicit trafficking of cultural property from countries around the 
world; and facilitate the repatriation of illicit cultural items seized 
as a result of HSI investigations to the artifacts' lawful owners.
Education and Training
    With funding provided by the Cultural Heritage Center (CHC) within 
the U.S. Department of State (DOS) and support from the Smithsonian 
Institution, ICE continues to train law enforcement officers on the 
handling, investigation, and seizure of items believed to be another 
nation's cultural property.
    Since 2007, approximately 400 special agents, U.S. Customs and 
Border Protection (CBP) officers, prosecutors, and representatives of 
foreign law enforcement have been trained by experts in the fields of 
cultural property law, targeting, intelligence, archeology, and museum 
conservation. In recent years, part of the training was held at the 
National Museum of the American Indian, where participants received 
guided tours of exhibits by experts. Our goal is to train as many law 
enforcement officers as possible to broaden the base of expertise in 
cultural property investigations. Today, ICE is working more closely 
than ever with CBP to ensure the efforts of our agents and officers are 
fully integrated throughout the lifecycle of a case.
    In Fiscal Year (FY) 2016, the CPAA program has also been 
represented in multiple conferences and workshops and the program is 
working with several different federal government agencies to develop 
more training and capacity-building workshops for FY 2017.
    Education is not limited to law enforcement personnel directly 
involved in investigations and prosecutions. In less formal settings, 
ICE continues to educate potential brokers and purchasers of cultural 
property on the importance of provenance (history of ownership) and 
encourages individuals to report any encounters with individuals 
seeking to sell merchandise to the HSI Tip Line.
Investigations
    The CPAA program plays a supporting role in cultural property 
investigations by identifying subject matter experts to authenticate 
items that may have indigenous cultural and religious significance, 
coordinating leads with other offices, and acting as a liaison to 
INTERPOL and law enforcement agencies. The program supports ICE's 
approximately 7,000 special agents in more than 200 domestic offices 
throughout the United States and 63 international attache offices. 
While any ICE special agent may work a cultural property case at some 
time in his or her career, HSI New York has a team of special agents 
that works exclusively on cultural property cases. HSI Los Angeles has 
also recently established its own specialized team whose focus will 
include cultural property investigations.
    Investigations into indigenous cultural property trafficking could 
result from a variety of leads, including: a direct request from Tribal 
leadership; CBP as a result of border searches, interdictions; foreign 
country notification of a sale at an auction house; the CPAA program; 
ICE Attaches; as well as lines of inquiry generated by a special agent. 
ICE enforces the cultural artifact import restrictions of bilateral 
agreements the United States (through DOS) has with 15 countries 
(Belize, Bolivia, Bulgaria, Cambodia, China, Colombia, Cyprus, El 
Salvador, Greece, Guatemala, Honduras, Italy, Mali, Nicaragua and 
Peru), as well as import restrictions for Iraq and Syria. These 
bilateral agreements help protect cultural property by imposing U.S. 
import restrictions on certain categories of archeological and/or 
ethnological material. Even with import restrictions in place, a single 
cultural property investigation can result in complex cases involving 
multiple domestic and international ICE offices, as well as other law 
enforcement agencies, and can last for years. For example, one of ICE's 
largest, ongoing cultural property investigations, Hidden Idols, began 
in 2007 and has resulted in the seizure of more than $150 million in 
artifacts. In FY 2015, ICE worked 239 domestic and 102 international 
cultural property investigations.
Investigating Cases with a Nexus to Tribal Cultural Items
    ICE enforces an extremely broad set of federal laws and regulations 
with jurisdiction over the investigation of crimes related to the U.S. 
border. While ICE is the lead investigative agency for the illegal 
import or export of cultural property, ICE would not typically be the 
lead investigatory agency for the theft and illegal transport of Tribal 
cultural items within the United States. For example, if customs 
officers were to discover that Tribal cultural items were transported 
into or out of the United States in violation of existing import or 
export law, ICE would have authority and jurisdiction to conduct an 
investigation.
    Buyers and sellers of illicitly obtained antiquities, cultural, and 
religious items often do not limit themselves to one type of artifact. 
As a result, ICE has worked cases involving smuggled antiquities from 
foreign sources only to find Tribal cultural items are also part of a 
criminal's cache of artifacts. For example, as part of an ongoing 
investigation of the illicit sale of pre-Columbian artifacts, ICE 
discovered that Tribal cultural items were also being offered for 
purchase by the same seller.
    In another case, an individual in the Southwest collected both 
Tribal and Egyptian cultural items, resulting in a case requiring 
involvement by ICE, the Department of Justice, and the Department of 
the Interior. A further example of collaboration with other law 
enforcement agencies was an investigation involving the Bureau of Land 
Management, the U.S. Fish and Wildlife Service, and the U.S. Forest 
Service. In this case, ICE worked with the other agencies to search a 
residence in Arizona and seize Tribal cultural items as well as 
controlled substances and weapons. ICE's authorities related to the 
protection of Tribal cultural items also extend to intellectual 
property rights, such as the selling of imported goods being 
fraudulently marketed as Native American jewelry.
Cultural Repatriation
    Cultural property investigations often result in the seizure of 
cultural property, which must be repatriated to its lawful owners 
through a legal forfeiture process. The CPAA program oversees these 
cultural repatriations, which can be a small exchange after the legal 
process is completed or it can include a grand ceremony that 
commemorates the items' return at the country's Embassy in Washington, 
D.C. or even within the country itself. Repatriation of Tribal cultural 
and religious items could occur on Tribal lands and within the Tribal 
customs and traditions as required by the Tribe itself. Whatever the 
venue, returning a piece of a country's history and heritage to its 
people is a celebration, and an event in which ICE is particularly 
proud to participate.
    ICE has returned a wide variety of items including paintings, 
pottery, sculptures, fossils, and sarcophagi. In FY 2016 alone, we 
repatriated a first edition of Charles Darwin's book, Origin of the 
Species, to Canada; terra cotta figures, jade implements, and a 115 
million year-old microraptor fossil to China; a dinosaur skull to 
Mongolia; imperial decrees to Russia; and several million dollars in 
statuary and sculptures to the Prime Minister of India during his 
official visit to the United States. Since 2007, we have returned more 
than 7,750 items to more than 30 countries.
Conclusion
    Thank you again for the opportunity to testify here in Albuquerque 
and for your continued support of ICE and its law enforcement mission. 
ICE remains committed to working with this committee and Tribal 
governments to continue our strong relationship going forward to help 
prevent and combat the illicit trafficking of Tribal cultural and 
religious items.
    I would be pleased to answer any questions.

    Senator Udall. Okay. Mr. Rodriguez, thank you so much for 
your testimony. I thank all of the witnesses for your excellent 
testimony today. We'll now have a period of questioning by 
myself and Senator Heinrich.
    Mr. Taplin, you talked about the French--sitting down with 
the French. That they--this is something new, I believe, that 
they've agreed to. Could you tell us the significance of that, 
and how that's going to further the efforts that we called this 
hearing about.
    Mr. Taplin. Yes, if it please you, Senator, this is 
something we heard within the last couple of days from our 
Embassy in Paris. We welcome the willingness on the part of the 
French government to sit down with us as we have proposed some 
time ago on a bilateral basis, as part of a joint working 
group, and so we're anticipating the first session will take 
place here at the end of the month.
    And our composition on both sides of the table will be 
interagency composition with representatives from the agencies 
that are here, and we are looking forward to getting into that 
process and exchanging views and understanding better what we 
can potentially accomplish. But we do think it's an encouraging 
step forward, and gives us stronger basis to work with our 
French partners.
    Senator Udall. So this is really a formal first step of 
sitting down, and we had requested this a long time ago, but 
the French diplomatic folks had not agreed to it, so we should 
view this as something encouraging; is that correct?
    Mr. Taplin. I think that's right. I want to be careful 
about setting expectations here at the beginning of this 
process, but I think it's certainly a positive step forward.
    Senator Udall. Well, we really appreciate your efforts and, 
as you know, the Acoma Shield is one of the many instances 
where the deeply important cultural items have been sold 
internationally. Can you describe the efforts, in addition to 
this sit-down that we've been talking about to ensure the 
stopping of trafficking of Native American cultural items, and 
how it remains a priority for the U.S. ambassador to the United 
Nations.
    Additionally, is there a process where we can ensure the 
tribes have the input in the discussions. As you know, the 
Federal Government has the trust responsibility, and it's very 
important that the tribes are involved in this too.
    Mr. Taplin. Yes. Let me make a couple of comments, Senator. 
The first comment would be that we are working very closely 
with interagency colleagues and from the agencies that are 
represented on this panel, where there's probably more 
practical experience in working with the tribes, and factoring 
in the input of the tribes into the process of how we undertake 
actions.
    So we have become more active and stepped up our 
engagement, I think, in the interagency process. And we think 
the consultative aspect of our work going forward is vitally 
important.
    In terms of other activity of the locus of our activities 
have, in fact, been with the French government, because of the 
series of auctions. And as I think I stated in my testimony, we 
tried to address it at various levels, the public diplomacy, if 
you will, the public engagement in raising public awareness 
aspect, I think will continue to be vitally important, and we 
are interested in trying to delve into in greater depth what we 
can accomplish through this work effort.
    At the United Nations, we approach these issues in the 
context of some of the wider engagement and indigenous people's 
rights in protecting those interests.
    And I should also note that another important aspect of our 
effort is at UNESCO. Our mission to UNESCO is also vitally 
interested in these issues, and I remember myself in last 
assignment overseas coauthoring an opinion piece with our 
former ambassador to UNESCO, David Killion, on the specific 
issue of options and commercialization of Native American 
tribal objects. Thank you.
    Senator Udall. Thank you very much. In this sit-down, 
you're going to--first formal sit-down with the French, we hope 
that you will find an opportunity to involve tribes, and you 
have some representation and consultation there.
    Mr. Rodriguez, as you know, the theft and trafficking of 
cultural items is not a new issue, and you talked about that in 
your testimony. And it's something that I know your agency 
takes very seriously.
    But one thing that seems to be new is the way in which 
these cultural items are being sold, and the way they're being 
exported through on time--online retailers such as eBay and 
other websites. What steps is your agency taking to keep tabs 
on the illegal online activity when it comes to tribal cultural 
items?
    Mr. Rodriguez. We have a variety of methods to begin 
investigations. Primarily we receive information from our field 
offices, from the public, from practitioners, in this area from 
concerned citizens that could involve Native Americans. And we 
already have a number of capabilities to investigate 
trafficking online. We've used it very successfully in an area 
that it's somewhat related to this, which is intellectual 
property. We've used it in many other areas of our mission.
    And when--some of our investigations, and I would say that 
continues to increase, have initiated with information related 
to somebody selling artifacts online, and we utilized a number 
of investigative methods to pursue those investigations.
    Some of those methods are best not discussed in public, but 
we're very successful in utilizing them to pursue these leads. 
A lot of work in this space has to involve the authentication 
of items and the provenance.
    So we're in partnership with scholars, private citizens, 
and many of our partners that are here represented in this 
hearing in helping us determine that.
    So I feel pretty confident that the use of online sales 
won't impede our ability to conduct these investigations.
    Senator Udall. Thank you very much. And as you can gather 
by the tenor of this hearing, we want you to be aggressive and 
to go after the wrongdoers at every opportunity.
    So, thank you.
    Mr. Toulou, the Department of Justice has a variety of 
existing legal authority and responsibility related to Native 
American cultural resources, as you are aware of from the 
hearing, the Antiquities Act, The Archeological Resources 
Protection Act, and NAGPRA, where do you see holes within 
existing authority that prevents you from effectivity curbing 
the theft, illegal possession, sale, transfer, and export of 
tribal cultural items?
    In other words, how can we help you deal with this 
significant problem, and do you see the need for--what you see 
the need for, to be done there.
    Mr. Toulou. Thank you for the question, Senator.
    As I mentioned in my testimony, some of the issues we see 
is, you know, the vast area that needs to be patrolled, and the 
fact that sometimes these items can be removed without anybody 
knowing what happened.
    So, I mean, there's some definite needs in that area.
    I think, you know, from a prosecutor's perspective, there 
are some issues regarding the current legislation that we're 
currently working through with my partners at the table. And 
I'll be happy to talk to your staff about those, but at--you 
know, some of them again, I alluded to in the testimony, the 
level of mens rea that's necessary on some of these--and some 
of the act is frankly antiquated, and doesn't apply to what we 
see as these cases develop. And we're working through an 
equitable way to deal with those issues, not--to have a 
chilling effect on the art market, but also to make sure that 
these very, very important items are maintained in the custody 
of the individuals who should have them.
    So, we're in the process of working through that with our 
partners. I'm happy to work with your staff, and Senator 
Heinrich's staff as we go forward on those issues.
    Senator Udall. Thank you very much. Ms. Maltais, I want to 
discuss multiagency investigations. It's my understanding that 
for 10 years, between 1996 and 2006, the Bureau of Indian 
Affairs had a single criminal investigator tasked with 
addressing looting on tribal lands.
    This investigator was from the Acoma Pueblo, and worked 
with other tribes and agencies in the southwest, and was very 
successful in that time period that he worked on that.
    It's also my understanding that since that investigator's 
retirement in 2006, that position has not been filled.
    What are the reasons a position specifically assigned to 
investigate issues covered under ARPA and NAGPRA has not been 
filled?
    Ms. Andrews-Maltais. It's my understanding that that wasn't 
exactly his sole responsibility. That in his professional 
career path, he had developed an expertise in that particular 
area, so it was part of the rest of his job duties. And because 
he had a specific expertise, that's why it wound up in there. 
But we would be happy to, you know, go back and look at, and 
speak with our Office of Tribal Justice with regard to, you 
know, what resources we may have.
    I think it would also be imperative upon us to have 
consultation with the tribe in order to move that type of 
initiative forward.
    But it is critical to be able to have those types of people 
with that level of expertise, and trained in that area, to be 
able to assist the other agencies that are working to try to 
combat this problem.
    Senator Udall. Thank you. And I think this person being a 
point person and getting known over a period of time was very 
important in terms of kind of coordinating and putting all of 
the resources behind it, so--and you didn't mention funding 
issues, but if there's a problem there, I'm happy to help on 
the appropriations side where I serve as the ranking member at 
this point on the subcommittee with the Interior Department 
Bureau and the Indian Affairs.
    So your assistant passed you a note, is there anything else 
you want to speak to with that?
    Ms. Andrews-Maltais. We do have somebody that's in the 
position, but it's not the individual that had retired. But the 
position--there is a position that also has those 
responsibilities, that is currently filled. And like everything 
else, the resources, whether it's human or financial, are 
always, you know, a concern, because this is evolving at a 
greater pace than it had been in the past.
    It's always been there, but it seems to be a much greater 
appetite for cultural items within these areas, and the 
extensiveness of the land bases that we have, tribal cultural 
monitors were also a recommendation from the tribes, as well as 
creating a point of contact, or similar to a desk, or something 
along those lines, so that there is consistency and a level of 
expertise that is gained through having individuals that have 
particular expertise in an area be able to do the outreach and 
work within the other agencies, and with the tribes 
specifically to better understand what those issues might mean 
individually for those tribes.
    Senator Udall. Thank you. And Senator Heinrich, questions.
    Senator Heinrich. Thank you, Senator Udall.
    Ms. Andrew-Maltais, I want to start with you, and you had 
mentioned in your earlier testimony a number of recommendations 
that you've received from tribes to help on this front. One of 
them was changing the legal definition of provenance or 
ownership, do you have specific language in mind for that?
    Ms. Andrews-Maltais. Well, we're not completed with our 
consultations, and we would rely very heavily on the tribes to 
also be able to assist us with formulating what that language 
or position would be. But we'd be happy to work with the 
Committee and with staff in order to develop that, because 
we've found what's happened is that it's difficult for the 
prosecutors or the investigators to be able to prove that these 
items were stolen, and from where they might have been taken.
    However, if the understanding is is that these items always 
do and always have belonged to the tribe in its entirety, and 
without the expressed free prior informant consent of the 
tribes to have those items alienated from the community, then 
the position should be that they were unlawfully gained or 
illicitly gained, and taken away from the tribal community.
    Senator Heinrich. I think that's an important distinction. 
I think both of us would love to work with you on that front.
    Mr. Toulou, you mentioned just the challenge of enforcing 
looting laws over such a large area, and we all know the 
challenges of that in the west, but would additional funding 
for BIA, BLM, Forest Service, Park Service, law enforcement, be 
an important step in preventing looting in the first place?
    Mr. Toulou. It's always----
    Senator Heinrich. Sorry to put you on the hot seat.
    Mr. Toulou. Not at all. It's always good to have more 
hands, although, I would not represent that necessarily as a 
Departmental position.
    It's also important for us to work with our tribal 
partners. And we try to do that as much as possible. You know, 
the next panel is a good representation of tribes that have 
really thought hard about this, and referred cases to us, and 
have people who are watching what's going on on the ground. 
Often, they're in the best position, frankly, to see those 
things come up, and we do--we make do with what we've got for 
now. Thank you.
    Senator Heinrich. I understand. Mr. Taplin, one of the 
things we had talked about was the fact that the STOP Act 
established an explicit prohibition on export of these items. 
From a diplomatic perspective, as opposed to a law enforcement 
perspective, how would an implicit prohibition on exporting 
protective Native American cultural objects make your job 
easier at the Department of State to work with other nations to 
secure return of those items?
    Mr. Taplin. Yeah. I don't want to comment specifically on 
the legislation, although I'm familiar with it, Senator, and 
have taken a careful look at it. I guess it's a general 
observation, though, about our diplomatic practice. I do 
believe that a number of the things which are reflected in the 
legislation broadly would tend to strengthen our hand 
diplomatically, whether it would be trying to address the 
question of export controls, because that is a question that 
we've heard from other governments when we have raised the 
repatriation issues in one or another way. And some of the 
other steps which I think are envisioned, which demonstrate our 
seriousness of purpose as a nation in terms of protecting our 
cultural heritage.
    All of those kinds of responses, including, I think, you 
know, a number of the provision of the legislation, you know, 
would tend to strengthen our hand diplomatically in these 
conversations.
    Senator Heinrich. Thank you. That's very helpful.
    Mr. Toulou, once again, when the Department of Justice 
prosecutes cultural and sacred object cases, is NAGPRA your 
primary statute in those cases, or do you often use other 
Federal statutes instead?
    Mr. Toulou. It really depends on the facts of the case. I 
mean, we will use ARPA, we will use NAGPRA, we will use, you 
know, theft from Federal lands. It depends on what we can use. 
I mean, I think some of the recent cases that I'm not going to 
comment on in detail, have shown that, you know, we can be 
creative in how we use the statutes. It doesn't mean they're 
perfect, but we'll use whatever resources we have, because this 
is very important to us.
    Senator Heinrich. Would there be changes to NAGPRA that 
would result in more cases being prosecuted specifically under 
that statute that would maybe align better with the nature of 
the crime as opposed to trying to use another tool that maybe 
wasn't as specifically intended for these particular kinds of 
cases?
    Mr. Toulou. Yes, I think, you know, obviously, a statute 
that's designed to meet the needs or to address the crime at-
hand would be better. And we're currently working with the 
folks here at the table, and the agencies they represent, and 
the tribes, to come up with, you know, better solutions in the 
statutes, that would help us prosecute those crimes. And we're 
happy, again, to work with your staff on that.
    Senator Heinrich. Thank you.
    Mr. Rodriguez, in your written testimony, you mentioned 
that the Homeland Security investigations teams in New York and 
Los Angeles are leading the effort under the cultural property, 
arts, and antiquities programs. Are these teams receiving 
training to help them be able to identify cultural items that 
are illegal to sell under current U.S. law, but which are not 
explicitly illegal to export from the United States?
    Mr. Rodriguez. Homeland Security Investigations conducts 
yearly training for these teams, as well as special agents and 
other professionals that work on these investigations. It's 
done through funding provided by the Department of States 
Cultural Heritage Center. And also in coordination with the 
Smithsonian Institute.
    I don't have the specifics of the content of the training, 
but will be happy to provide that at a later time, but I do 
know that it covers these areas in a way that provide 
awareness, not just to import/exports, but issues in general.
    For example this year's training included a day that was 
conducted at the National Museum of the American Indian, which 
provided them with presentation from the staff there, as well 
as a visit to the exhibits. And that was a step to help raise 
the awareness that these issues do exist.
    It does involve training from the National Park Service, 
which conducts a session on domestic looting, and the 
intersection with the international market.
    And we look forward to expand that collaboration to this 
area more specifically. And I think steps have been taken in 
the right direction already.
    Senator Heinrich. I want to thank you-all for your 
testimony here today. That concludes my questions, Senator 
Udall.
    Senator Udall. Thank you Senator Heinrich, and before we 
move to the next panel, just one final question to all of you 
for the record. Can I get your commitment to provide a 
concerted effort to work directly with the tribes on 
consultation on this issue, Ms. Maltais?
    Ms. Andrews-Maltais. Absolutely.
    Senator Udall. Mr. Toulou?
    Mr. Toulou. Yes.
    Senator Udall. And Mr. Taplin?
    Mr. Taplin. Absolutely.
    Senator Udall. Mr. Rodriguez?
    Mr. Rodriguez. Most definitely.
    Senator Udall. Thank you. And thank you so much for that 
response, and as you well know, this is incredibly important to 
protect tribal identity for future generations. We really 
appreciate you being here. We're going to excuse this panel. I 
know some of you have schedules and planes and things, but to 
the extent that any of you can stay and listen to the next 
panel, which I think will give you a perspective on what we're 
dealing with here, it would be very helpful.
    We'll just take a short recess. You are excused, and take a 
short recess, be back within five minutes so that we can have 
the next panel come forward and change the name plates.
    Thank you very much. Short recess.
    [Recess was taken from 11:16 a.m. to 11:24 a.m.]
    Senator Udall. So I'll bring us back into session here. And 
we will now hear from our second panel of witnesses. We have 
the Honorable Kurt Riley, Governor of the Pueblo of Acoma; the 
Honorable Paul Torres, Governor of the Pueblo of Isleta and 
Chairman of the All Pueblo Council of Governors; the Honorable 
Russell Begaye, president of the Navajo Nation; Dr. Gregory 
Schaaf, historian and retired professor of Native American 
studies at the University of California; and Ms. Honor Keeler, 
Director of the International Repatriation Project at the 
Association on American Indian affairs.
    It is wonderful to have the whole panel here today. I look 
forward to hearing your testimony, beginning with Governor 
Riley. Governor Riley, please proceed.

    STATEMENT OF HON. KURT RILEY, GOVERNOR, PUEBLO OF ACOMA

    [Native American Language Spoken.]
    Mr. Riley. Senators Udall and Heinrich, members of the 
Committee, tribal leaders, and guests, thank you for allowing 
us this time with you to testify before you.
    My name is Kurt Riley. I am the Governor for the Pueblo of 
Acoma. And we are deeply appreciative of the time taken by the 
Committee and your staff to travel to Albuquerque, and to 
devote your attention to this important issue.
    The Pueblo of Acoma has a great deal of experience dealing 
with this issue. And is grateful for the opportunity to share 
our experience with you. I'd like to begin by trying to 
describe the kinds of objects we are all interested in 
protecting. There is a misconception about the kinds of objects 
tribes like Acoma are seeking to protect.
    Admittedly, the cultural objects Acoma wants protected are 
difficult to describe. Our traditions and cultural laws often 
restrict us from publicly discussing some of these items that 
are sacred and used in ceremony, known and understood for the 
most part by my Acoma people.
    But for context, I would encourage the Committee to note 
the kind of objects that have been part of our public 
repatriation efforts, like the Acoma Shield, the priest robes 
in the case United States vs. Tidwell, and the items in the 
criminal case, United States vs. Brian Garcia and Gerald 
Garcia.
    Their value and place within the community is similar to 
those described in the case Pueblo of San Ildefonso vs. Ridlon 
or the return of the Zuni War Gods.
    The highly publicized repatriation effort by Zuni Pueblo 
near the time the Native American Graves Protection and 
Repatriation Act was passed.
    It may be easier to describe what these items are not. 
These items are not created by Pueblo artists and potters. We 
do create works of art, pottery, paintings, and sculptures for 
the purpose of commerce. Sharing these works with the world is 
encouraged.
    We fully support those Acoma artists who create works of 
art, to provide for themselves and their families.
    Instead, the objects we are concerned with are those 
cultural objects that are central to our belief system and our 
traditional way of life.
    Often these objects are cared for, stored, or used by 
individuals, families, or different societies within the 
Pueblo.
    These items are cared for or stored in communal buildings 
or individual homes for safekeeping, until they are needed in 
ceremony.
    Although, they may have some intrinsic artistic value, 
their purpose and intended use is very different.
    It is important to note that the cultural objects the 
Pueblo seeks to protect are only those that fall within the 
definitions and standards of existing Federal law.
    NAGPRA and ARPA have specific and detailed statutory 
definitions for the objects they protect.
    Acoma's process when encountering potentially protected 
cultural objects is to determine whether the item is protected, 
first of all, under tribal law.
    And, more importantly, whether it fits within the 
definitions and standards of existing Federal law.
    Since the passage of NAGPRA, the Pueblo of Acoma has worked 
extensively to recover cultural objects illegally removed from 
the Pueblo.
    The Pueblo has found and attempted to recover objects at 
locations locally, regionally, nationally, and now 
internationally.
    We have identified an alarming number of Acoma cultural 
objects just within the last two years.
    The Acoma Shield being held in Paris is a public example of 
our most recent repatriation efforts.
    What we learned from our experience with the Paris auction 
house and with similar repatriation efforts, is that we need 
the help of Federal law and Federal authorities.
    We are grateful for the assistance by Congress, especially 
with the introduction of the Safeguard Tribal Objects of 
Patrimony, the STOP Act, in both the House and Senate, and the 
Senate passage of the Protect Act.
    The Pueblo of Acoma fully supports the STOP Act's passage, 
as it gives us an explicit tool to close the doors on the 
illegal exportation of our cultural objects, and creates an 
opportunity for pueblos, tribes and nations, and in the Native 
American Arts and Antiquities industry to work together.
    The provisions of the STOP Act are designed to keep Native 
American cultural objects where they belong, as well as to 
facilitate the return of those that have left or been removed 
from tribal possession.
    We understand that the STOP Act has received criticism from 
some members of the Native American arts and antiques industry. 
We believe that the criticism is unfounded. And in many 
instances is based on a misunderstanding of the purpose, 
effect, and intent of the STOP Act's provisions.
    We have addressed these concerns in the written testimony 
we've submitted. What is clear to Acoma is that we cannot rely 
on the voluntary, unsolicited return of these items by 
collectors or dealers. That has only happened once in the last 
10 years for Acoma. That approach simply doesn't work.
    Finally, the Pueblo of Acoma urges this Committee to fully 
support and appropriate funding for the creation of a cultural 
items unit within the Department of Interior; specifically, the 
Bureau of Indian Affairs, to investigate violations of NAGPRA, 
ARPA, and related statute.
    In addition, further funding is needed for the United 
States Attorney's Office to assist in the prosecution of 
crimes; specifically, to the illegal sale, theft, and marketing 
of cultural objects.
    The Pueblo of Acoma, along with tribal communities across 
this country cannot do--can only do so much to monitor and 
recover the cultural objects that we are able to find through 
public venues and publications.
    We know we are only scratching the surface when it comes to 
finding cultural objects that may be out there, being bought 
and sold in private transactions.
    We need the assistance, resource, and force of Federal law 
to fully shine the light on the illegal market that traffics 
our cultural items.
    In the most recent events of the Acoma Tribal Shield, I 
want to thank the U.S. Attorney, Damon Martinez, for committing 
extraordinary resources to--at least, at this point, the Acoma 
Shield being held from being sold.
    And with that, thank you for listening to the Pueblo's 
concerns. I will be happy to answer any questions that you may 
have. Thank you.
    [The prepared statement of Mr. Riley follows:]

    Prepared Statement of Hon. Kurt Riley, Governor, Pueblo of Acoma
    On behalf of the Pueblo of Acoma (``Pueblo'' or ``Acoma''), please 
accept this written testimony for the field hearing on the ``Theft, 
Illegal Possession, Sale, Transfer and Exportation of Tribal Cultural 
Items'' held by the Senate Committee on Indian Affairs on Tuesday 
October 18, 2016 in Albuquerque, New Mexico. Acoma is deeply 
appreciative of the time taken by the Committee in devoting its 
attention to this important issue. Acoma has a great deal of experience 
in both combating illegal trafficking of its protected cultural objects 
and in seeking repatriation of those objects. The Pueblo is grateful 
for the opportunity to share this experience with you.
1. Acoma's Background on the Protection of Cultural Objects
    The cultural objects Acoma is attempting to protect are difficult 
to fully describe and publicly identify because of their sacred and 
confidential ceremonial use. However, the objects the Pueblo has an 
interest in protecting are those that are central to our cultural 
belief system and way of life. They are very different from the 
beautiful works of art created by our tribal artists and potters. While 
our cultural objects may have some intrinsic artistic value, their 
purpose is very different. Under Pueblo of Acoma traditional law, it is 
illegal for any member, who may have these cultural objects in their 
care to sell or remove the object from the Pueblo of Acoma. \1\
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    \1\ Different types of Acoma cultural objects may be stored, cared 
for, or used differently depending on what the object is. For example, 
some cultural objects may be cared for and stored by individuals or 
families in their homes. Other times, different cultural objects may be 
cared for and stored in communal buildings, called kivas, by specific 
societies or clan groups. Other times, these objects may be placed 
outside in the open at sacred sites. Objects are put in special places 
to be left there permanently, not unlike the San Ildefonso Pueblo 
object at issue in the case of Pueblo of San Ildefonso v. Ridlon, 103 
F.3d 936 (10th Cir. 1996), or the repatriation of the Zuni War Gods in 
the late 1980s (a well known example of the removal of cultural objects 
from area shrines).
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    They also qualify as protected cultural objects under federal law, 
especially as cultural patrimony under the Native American Graves 
Protection and Repatriation Act (NAGPRA), and therefore may not be 
alienated by any individual. Many collectors have argued that these 
objects were lawfully acquired and can be legally sold. This is a false 
statement and mischaracterization of how Acoma law and federal law 
treat these objects. Under Acoma and federal law, the Pueblo itself 
effectively owns the objects in question. \2\
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    \2\ The clearest analogy to describe Acoma law is the legal concept 
of property rights being a ``bundle of sticks.'' For Acoma, some 
members may have rights of possession, but they do not have the right 
to sell an object of cultural patrimony. In fact, traditional law 
dictates what is to happen to a cultural object if a caretaker can no 
longer care for the object. The right to sell an object of cultural 
patrimony, although not contemplated in Acoma traditional law, would be 
exclusively reserved to Acoma itself. Certainly, the Pueblo has never 
exercised this right. Acoma's traditional law closely mirrors the 
definition of ``cultural patrimony'' defined under NAGPRA found at 25 
U.S.C. Section 3001(3)(D).
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    A current and public example of Acoma's efforts to protect its 
important cultural objects can be seen in the Pueblo's effort to 
prevent the sale and auction of a ceremonial shield being auctioned in 
Paris, France, in late May. In this instance, the Pueblo believes the 
shield was stolen from the shield's caretaker in the 1970s, and was 
eventually exported overseas. Unfortunately, this incident is only one 
of many that the Pueblo has actively dealt with in recent years. Some 
of the earliest recorded incidents of the Pueblo's efforts involve 
federal criminal convictions handed down just after the passage of 
NAGPRA in 1990. In United States of America v. Brian Garcia and Gerald 
Garcia, 92-515 JC (D.N.M. 1992), two Acoma brothers pled guilty to 
illegal trafficking of Acoma cultural patrimony in violation of NAGPRA 
and other federal criminal law. The Pueblo of Acoma worked closely with 
the United States Attorney's Office to verify the provenance of the 
objects taken. This case represents the degree and extent that Acoma 
treats this issue by pursuing the federal conviction of our own people. 
Later in 1999, a set of historic Catholic priest robes cared for by 
Acoma, dating from the time of the Pueblo Revolt, left the Pueblo. They 
were recovered along with a number of Hopi objects of cultural 
patrimony. An Acoma Bureau of Indian Affairs (``BIA'') Special Agent 
investigated a tribal art and antique dealer, and that investigation 
led to his conviction and the recovery of these objects. See United 
States v. Tidwell, 191 F.3d 976 (9th Cir. 1999). For Acoma, these two 
cases, some of the earliest and most important federal criminal 
convictions, demonstrate the Pueblo's commitment to the protection of 
its cultural objects.
    Later, in the 2000's, as national and international auction houses 
began to expand and reach more collectors through the Internet, Acoma 
became significantly more involved in attempting to identify and 
recover its cultural objects. In 2006, the Pueblo of Acoma worked 
diligently with its legal counsel for the return of historic wooden 
beams and doors from the San Estevan del Rey Mission Church. \3\ A 
national auction house had possession of the wooden beams along with 
nearly 50 other sensitive Acoma cultural patrimony objects. All were 
returned. With the increased availability of auction house catalogues 
on the Internet, the Pueblo regularly attempts to monitor and respond 
to auctions involving its cultural objects. The consistent monitoring 
has led to discovering otherwise inaccessible or unknown art and 
antique gallery inventories. However, this monitoring practice may only 
be scratching the surface. We do not know the exact number or the kind 
of cultural objects that may be out there; we do know there are many, 
and any is too much.
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    \3\ The San Estevan del Rey Mission Church sits atop the mesa at 
the Pueblo of Acoma. Founded in 1629, it is still cared for and 
maintained by the Acoma people.
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    In 2015, the Pueblo of Acoma uncovered a disturbing number of its 
cultural objects for sale in a variety of contexts. They were being 
sold in locations locally, nationally, and internationally. Across 10 
separate incidents; 24 separate Acoma cultural objects were identified 
as being available for sale, or having already been sold. Of these 24 
objects, the Pueblo was only successful in securing the return of only 
11 of these objects. Just this year, the Pueblo of Acoma has 
encountered and identified 15 Acoma cultural objects for sale, or 
having already been sold. The Pueblo was successful in recovering only 
9 of these objects. Acoma has actively worked closely with its sister 
tribes, such as Laguna, Jemez, and the Hopi Tribe in informing them of 
sacred cultural objects that Acoma has encountered, which may be 
culturally significant to them.
    The Pueblo of Acoma wishes to highlight a very significant point. 
The Pueblo asks this Committee to not to think of these sacred and 
ceremonial objects in property right terms like title and 
``ownership.'' If these objects are merely treated like other pieces of 
property, their true significance is lost. Instead it is important to 
move beyond the Western view of property rights and consider this issue 
as one of human and cultural rights, unique and Indigenous to the 
Native people of this country.
2. Support for the STOP Act
    The Pueblo of Acoma fully supports the passage of the Safeguard 
Tribal Objects of Patrimony (STOP) Act, S. 3127 and H.R. 5854. The STOP 
Act makes changes to existing federal statutes that strengthen the 
ability of tribes to protect their important cultural objects. Existing 
federal statutes include NAGPRA, 25 U.S.C.   3001-3013, 18 U.S.C.  
1170; the Archaeological Resource Protection Act (ARPA), 16 U.S.C.   
470aa-470mm; and the Antiquities Act, 16 U.S.C.   431-433 repealed 
and re-codified at 54 U.S.C.   320301-320303, 18 U.S.C.  1866. The 
STOP Act's provisions increase penalties under NAGPRA, create an 
explicit prohibition on exportation of protected Native American 
cultural objects, and provide for limited immunity for individuals 
voluntarily repatriating objects. These provisions are designed to both 
keep Native American cultural objects with tribes where they belong and 
to facilitate the return of those that have left tribal possession. The 
STOP Act also calls on the Federal government with the help of a tribal 
working group, to conduct studies designed to protect Native American 
cultural objects.
    Current federal law does not adequately address and protect the 
hundreds of cultural objects that have been trafficked from the United 
States to overseas markets. A quick look at past auction catalogues of 
places like the Eve Auction House in Paris, France, where the Acoma 
shield was to be sold, quickly reveals the sheer enormity of Native 
American cultural objects that have left the country. \4\ Most of these 
objects are likely subject to their respective tribal laws and other 
federal laws. Put simply, countries like France have become a safe 
haven for this illegal market where the most sensitive of cultural 
objects are sold to the highest bidder, and tribes have no recourse. 
The STOP Act is an important tool to close the door on the illegal 
trafficking of our important cultural objects and send a message that 
this illegal practice will not be tolerated.
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    \4\ The French auction of Native American sacred objects and 
artifacts has been widely reported since at least 2013. See Tom 
Mashberg, Secret Bid Guides Hopi Spirits Home, NEW YORK TIMES, (Dec. 
16, 2013), http://www.nytimes.com/2013/12/17/arts/design/secret-bids-
guide-hopi-indians-spirits-home.html; Tom Mashberg, Despite Legal 
Challenges, Sale of Hopi Religious Artifacts Continues in France, NEW 
YORK TIMES, (June 29, 2014), http://www.nytimes.com/2014/06/30/arts/
design/sale-of-hopi-religious-objects-continues-despite-us-Embassys-
efforts.html; SeaAlaska Heritage Institute, Secret Bidder Saves Sacred 
Object from Auction for Alaska Natives, INDIAN COUNTRY TODAY, (Sept. 6, 
2014), http://indiancountrytodaymedianetwork.com/2014/09/06/annenberg-
foundation-returns-sacred-object-alaska-natives-156764; AP, Navajos 
Reclaim Sacred Masks at Auction, CBS NEWS, (Dec. 16, 2014), http://
www.cbsnews.com/news/navajo-indians-buy-back-sacred-masks-in-france-
auction/; Reuters, Hopi Sacred Masks Auction in Paris Despite Protests, 
REUTERS, (June 11, 2015), http://www.reuters.com/article/us-france-
auction-masks-idUSKBN0OR1DG20150611.
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3. Addressing Criticisms of the STOP Act
    The Pueblo of Acoma is aware that the STOP Act has come under 
criticism by a small segment of the representatives of the Native 
American Indian art and antique industry. Predominantly this has been 
from public statements by organizations like the Antique Tribal Arts 
Dealer Association, Inc. (ATADA). We would like to take this 
opportunity to address and dispel some of the major arguments ATADA has 
made.

    MYTH: The STOP Act is not necessary as current federal law already 
prohibits the exportation of protected cultural objects.

    RESPONSE: It has been argued that criminal provisions of the 
federal statutes cited in the STOP Act already prohibit the exportation 
of protected cultural objects through the use of the term 
``trafficking.'' While it is arguable that ``trafficking'' may 
incorporate ``exportation,'' in reality, it is clear that this language 
is not being interpreted in this manner. In the Pueblo's most recent 
effort to recover the Acoma shield, France cited directly to United 
States law and pointed to the absence of explicit exportation 
prohibitions on cultural objects like the shield in its reasoning for 
not halting the auction initially. This has resulted in the Pueblo 
attempting to halt auctions of its protected cultural objects abroad 
without success, including pursuing legal actions and filing the 
necessary complaints. \5\ Clear language stating that exportation of 
protected cultural objects is prohibited is needed to provide a 
necessary tool for tribes and the United States to use to prevent 
cultural objects from leaving the country, and negotiate the return of 
cultural objects illegally exported.
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    \5\ The Pueblo of Acoma previously unsuccessfully attempted to halt 
the sale by the Eve Auction House of the shield and other Acoma 
cultural objects by the Christophe Joron-Derem Auction House in 2015 in 
Paris, France. Fortunately at that time, the shield did not sell and 
became available again for sale in 2016. However, the other important 
Acoma cultural objects were sold and are gone forever.

    MYTH: The STOP Act does not provide clarity or notice regarding 
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which objects qualify as protected.

    RESPONSE: It has been alleged that the STOP Act does not provide 
the necessary clarity to define what objects are protected. This is 
inherently a criticism of the underlying laws that the STOP Act relies 
upon. It is important to note that the STOP Act does not create 
protections or penalties for any object that is not already protected 
under existing federal law. The STOP Act applies to ``Native American 
cultural objects,'' which include objects meeting the following 
definitions: ``cultural objects'' under NAGPRA, 25 U.S.C.  3001(3); 
``archaeological resources'' under ARPA, 16 U.S.C.  470bb (1); and 
``objects of antiquity'' under the Antiquities Act, See 18 U.S.C.  
1866(b). However, ``Native American cultural objects'' only include 
such objects when the object is ``Native American'' as that term is 
defined in NAGPRA, 25 U.S.C  3001(9).

    The definitions used by the STOP Act are legally sufficient. Courts 
have routinely upheld these definitions as not unconstitutionally 
vague, even when law enforcement officials or courts look to tribal law 
or tribal representatives to determine whether objects are qualify for 
federal protection. See, e.g. United States v. Tidwell, 191 F.3d 976 
(9th Cir. 1999) (upholding NAGPRA); United States v. Carrow, 119 F.3d 
796 (10th Cir. 1997) (upholding NAGPRA); see also United States v. 
Austin, 902 F.2d 743 (9th Cir. 1990) (upholding ARPA); United States v. 
Smyer, 596 F.2d 939 (10th Cir. 1979) (upholding the Antiquities Act); 
but see United States v. Diaz, 499 F.2d 113 (9th Cir. 1974) (finding 
Antiquities Act unconstitutionally vague).
    Further, Congress has already closely considered this issue, 
including debate with competing testimony from tribes, museums, and 
private collectors. For example, at the time of the passage of NAGPRA, 
the Select Committee on Indian Affairs resolved to ``[c]arefully 
consider[] the issue of defining objects within the context of who may 
be in the best position to have full access to information regarding 
whether an object is sacred to a particular tribe. . .'' See S. Rep. 
No. 101-473, at 4 (1990). For ``sacred object'' the Committee 
determined that it is much more than an object being ``imbued with 
sacredness in the eyes of a Native American[,]'' but rather the object 
must have been used in a traditional religious ceremony or ritual, and 
have a religious significance or function when possessed by a Native 
American. Id. at 5. For ``cultural patrimony'' those objects must have 
ongoing ``historical, traditional, or cultural importance[,]'' 
inalienable by any individual.'' Id. As examples, the committee listed 
cultural patrimony such as Wampum belts of the Iroquois and the Zuni 
War Gods. Id. The Pueblo of Acoma believes the intention of statutes 
like NAGPRA as interpreted by Congress and the courts, was to clearly 
value tribal culture and law that ultimately dictates the function, 
treatment, and distinction of what is considered ``sacred'' or 
``cultural patrimony.'' The mens rea, or knowledge/intent, element of 
NAGPRA's criminal provision balances this consideration with the 
protection of the unwitting consumer who may unintentionally violate 
federal law. Instead the Pueblo's concern lies more so with those 
individuals who do know they are in violation of tribal and federal 
law, or who have enough prerequisite knowledge and information to pause 
and find out the legal status of a cultural object. \6\
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    \6\ See e.g. United States v. Tidwell, 191 F.3d 976, 980 (9th Cir. 
1999) (suggesting that sufficient knowledge of Native American Art and 
NAGPRA should imply that individuals may ``have to inquire further or 
consult an expert when. . . purchas[ing] the objects'' and stating 
```one who deliberately goes perilously close to an area of proscribed 
conduct shall take the risk that he may cross the line.''').
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    In order to more effectively protect its important cultural 
objects, and provide well-intentioned dealers with guidance, a way to 
provide more notice and clarity regarding which objects are protected 
may be useful. It is important this idea be formulated by tribes and 
structured to function within tribal legal and traditional systems. 
Therefore, the Pueblo is considering various methods to provide greater 
clarity. These ideas include the following actions:

   Create a system where collectors can receive a letter from a 
        tribe before purchasing or selling an object certifying that 
        the tribe does not deem the object protected. If a prosecution 
        were later initiated, the certification would serve as prima 
        facie evidence that the object is not protected for purposes of 
        that specific tribe.

   Create a certification system, by establishing a method for 
        collectors to submit an inquiry by email or phone to receive a 
        referral to the cultural representative of a tribe likely to 
        have a cultural connection or be knowledgeable or aware of an 
        object the collector is considering purchasing.

   Create regional networks of experts, at designated regional 
        academic institutions or museums, to whom collectors could 
        reach out to with questions and receive similar referrals to 
        the appropriate tribal cultural representative for further 
        information.

    It is paramount that if collectors or dealers are unsure if an 
object is from a particular tribe, they should simply contact the tribe 
for more information. We believe the ideas outlined above will 
alleviate some of the confusion collectors or dealers encounter when 
they do not know the cultural affiliation or legal status of the 
objects they are buying or selling.
    To create a comprehensive list of protected cultural objects is 
impractical and inappropriate. There are 567 federally recognized 
tribes, each with its own objects meeting the criteria for existing 
federal protection. More important, traditional knowledge about the 
existence and treatment of cultural objects may be diffused through the 
community. For the Pueblo of Acoma, no one person or group knows 
comprehensively the entire scope and inventory of cultural objects 
within the Pueblo. Instead, the appropriate individuals or groups that 
interact within a particular living culture may keep this knowledge 
separately. Therefore, it may be impractical, and culturally 
inappropriate, to require tribes to divulge information in its entirety 
regarding protected cultural objects. In addition, this divulgence may 
only fuel the market for rare and desirable objects given their 
esoteric nature. Finally, such a list may unintentionally give a 
presumption of completeness that only the objects on this list are 
protected.

    MYTH: The amnesty window will cause unwarranted return of objects 
lawfully owned.

    RESPONSE: The STOP Act is designed to explicitly prohibit 
exportation of protected objects, thereby making it easier to establish 
that their sale overseas is illegal. The proposed Act will facilitate 
their return through legal channels. The amnesty window is designed to 
allow open dialogue between tribes and collectors or dealers regarding 
what specific objects may be protected under federal law. It creates a 
venue for dialogue and communication that groups like ATADA imply they 
need. The amnesty window provides an opportunity for repatriation of 
cultural objects without fear of having unintentionally violated the 
law.

    Further, it is clear from Acoma's own experiences that federal and 
tribal enforcement of statutes through the judicial process is 
extremely expensive and time consuming. Tribes are not always able to 
invest or commit the necessary resources to seek the repatriation of 
culturally significant objects. They are not always able to convince 
federal law enforcement officials to invest their own resources to 
repatriate objects on a tribe's behalf. Additionally, some individuals 
who have protected objects in their possession and know they are 
protected may want to return the objects without undergoing judicial 
action. For these reasons, voluntary repatriation of protected objects 
is essential, and the amnesty window encourages the amicable resolution 
among all parties.

    MYTH: The STOP Act will damage businesses and Native artists.

    RESPONSE: In the Pueblo's experience, the vast majority of 
inventories held by collectors or dealers are of no concern to the 
Pueblo. Acoma is fairly certain that only a very small segment of an 
individual's collection may be protected. Provisions like the amnesty 
window are meant to provide an opportunity for open dialogue, amicable 
resolution and repatriation of the small segment of objects that are 
protected. This process will hopefully provide greater clarity for the 
market and boost consumer confidence.

    Furthermore, Native American artists are generally not creating 
objects that are considered protected under federal law, or under the 
proposed STOP Act. The Pueblo of Acoma does support and encourage its 
community members and other tribal artisans to create art forms and 
other exceptional expressions of their tribal culture--whether it is by 
pottery, paintings, weavings, jewelry, or other mediums. These pieces 
of art should be celebrated and shared with the world. These are not 
the objects that the Pueblo feels need federal legal protection.

    MYTH: The STOP Act will deprive museums of important resources in 
cultural education.

    RESPONSE: The STOP act provides additional support and protection 
for the very objects that are considered core to a museum's mission--to 
give meaning and understanding to a living tribal culture. While it is 
important to protect a museum's resources, of even greater importance 
is the need to protect the very cultures a museum seeks to educate and 
inform the public about. The cultural objects that the Pueblo is 
interested in protecting are essential to the Pueblo's continued 
cultural survival and a way of life that has existed and sustained us 
since we first stepped into this world.

    The Pueblo has placed tremendous importance on ``cultural 
education.'' This inherent tribal value comes from the ability to 
control and care for significant and highly sacred cultural objects. 
This value is then passed on through ceremonial practice and use along 
with lengthy explanations and admonitions. The continued unfettered 
passage of cultural knowledge especially to Acoma's next generation 
cannot be understated. We encourage dialogue with museums or 
institutions that may have these concerns, and applaud those 
institutions and museums that not only recognize this important value 
but, support our efforts to protect our cultural objects. We strongly 
suggest that museums work with tribes, to build a cultural education 
framework for our nation's citizens in collaboration with tribes--not 
by using sacred and ceremonial tribal objects in a blasphemous or 
deleterious manner.
4. Support for Funding
    The Pueblo of Acoma seeks and fully supports an appropriation to 
fund a Cultural Items Unit within the Department of the Interior to 
investigate violations of NAGPRA, ARPA, and related statutes. \7\ Often 
times, cultural objects that are trafficked or put up for sale have a 
brief and limited time for action before they are sold and possibly 
disappear forever. The Pueblo has experienced, to its dismay, instances 
where seeking federal assistance for such an emergency has gone 
unanswered, only to watch as an object disappeared. The development of 
a Cultural Items Unit is essential to curbing the illegal trafficking 
of protected cultural objects. The placement of this unit within the 
Department of Interior is significant as officers and special agents 
with the Bureau of Indian Affairs are often the ``first responders'' to 
crimes in Indian Country. The Pueblo has begun to establish a regional 
relationship with its local Bureau of Indian Affairs Office and United 
States Attorney's Office to investigate crimes related to removal and 
trafficking of its protected cultural objects. However, we understand 
this relationship is not uniformly shared or established in other 
regions of the country. The creation of a Cultural Items Unit within 
the BIA would be similar to the Federal Bureau of Investigation Art 
Crimes Unit and the United States Fish and Wildlife Service special 
agents who are trained specifically for investigations within their 
respective areas of expertise; a similar model is needed for the 
specialized investigation of cultural object crimes.
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    \7\ See House Report 114-632 (recommending the appropriation of 
$1,000,000 for the development of a Cultural Items Unit within the 
Department of the Interior).
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    As a result of increased investigation into these types of crimes, 
the Pueblo of Acoma calls for Congressional support for increased 
appropriations for the United States Attorney's offices to cover the 
cost of criminal and civil actions taken to protect cultural objects, 
especially in the southwestern part of the United States where so many 
Indian tribes are located. Acoma also believes it is important for 
funding to be made available for tribes to strengthen their tribal 
courts and update their law and order codes specific to their own 
cultural protection laws. This increase in resources will only assist 
the United States Attorney's Office in bringing stronger cases against 
those who violate current federal laws protecting cultural objects.
    Since the introduction of the STOP Act there has been a surge of 
interest in this issue, resulting in increased contact between Acoma 
and various collectors and dealers. Acoma seeks to build and expand its 
positive relationships with this community. When they return these 
objects home it is a joy for us. We are extremely thankful. We do not 
want to have to rely on the law and the courts to secure their return, 
but it must be emphasized that the law must set forth the values of the 
United States and its Native peoples and because of that, we fully 
support the STOP Act. The Pueblo looks forward to working with the 
Committee, generating good will with those who have supported the Act, 
refining it as needed, and finally by securing its ultimate passage.

    Senator Udall. Thank you so much, Governor Riley. I really 
appreciate your testimony here. Governor Torres, Chairman 
Torres, also.

  STATEMENT OF HON. E. PAUL TORRES, GOVERNOR, PUEBLO OF ISLETA

    Mr. Torres. [Native American Language spoken.]
    Thank you, Senator Udall and Senator Heinrich. I would like 
to begin by publicly thanking both of you Senators, also 
Senator John McCain.
    I would like to begin by publicly thanking the both of you 
Senators, Senator Udall and Senator Heinrich, and also Senator 
McCain from Arizona, for recently introducing a Senate 
Concurrent Resolution 49 in support of effort to stop the 
illegal--to stop the theft, illegal possession or sale, and 
export of tribal cultural items.
    The bipartisan protection of the rights of tribes to stop 
the export of cultural and traditional patrimony resolution is 
a good expression of Congress's condemnation of the theft, 
illegal possession, or sale, transfer, and export of tribal 
cultural items.
    It calls for the implementation of several measures to 
identify and stop the illegal trafficking of tribal cultural 
patrimony and secure repatriation of exported items to the 
rightful Native tribal owners.
    Very recently, the Pueblo of Isleta was confronted with a 
situation that is worth discussion. In August of this year, 
three traditional leaders came to my office to request some 
assistance. We were told by one of the traditional leaders that 
he and his wife had recently visited a local antique shop in 
Albuquerque and saw what looked like a traditional ceremonial 
pottery bowl that was used by his traditional society before it 
went missing some time in the 1980s.
    The home that it was in, the traditional leader's home, was 
vandalized and robbed, and that's when this piece was noticed 
to be missing.
    Another traditional leader went to the shop, to this shop, 
and verified that it was indeed the same pottery.
    Because the pottery had been missing for such a long time, 
and because the pottery was for sale to the public and could 
have been purchased by a collector, never to be seen again in--
never to be seen in public again, I decided that the safest 
thing to do was to send my Lt. Governor to purchase this 
pottery, and to bring it back, to return it to the traditional 
society where it belonged. And this pottery was for sale for 
$1,200. So I sent my Lt. Governor to purchase it.
    We didn't want to raise a red flag to the owner of the 
store, because if we did, he would have probably gotten rid of 
it immediately because there was a lot of money involved. And, 
so, we purchased it and documented the purchase.
    After the transaction occurred, we asked the salesman if he 
knew who owned the item, and--the item that we had just 
purchased, who had put it--who had brought it to his shop. And 
he said that the store deals with about 10 different art 
dealers who have their art on consignment basis. But he could 
not recall who the art dealers were, and who this particular 
art dealer was that had this pottery for sale.
    He explained that that was just a salesperson, and that the 
owner of the business was out of the country. He informed us 
that the pottery was just purchased and was put on display 
about six months prior to us buying it.
    Although we are thankful that this ceremonial pottery is 
back where it belongs, it is indeed an unfortunate situation 
when an Indian tribe is forced to purchase back a cultural item 
that was illegally taken from its rightful place.
    If someone else wanted the ceremonial pottery that I just 
described, he or she could have easily made the purchase 
without the Pueblo or those traditional leaders even knowing 
about it.
    Also, given the recent use of social media and Internet 
sites to facilitate transactions, it makes it exceedingly 
difficult for an Indian tribe and traditional leaders to keep 
track of cultural items that are up for sale to the public.
    EBay, Amazon and Craigslist are just a few of the many 
places one can buy and sell online.
    Last year, the All Pueblo Council of Governors passed a 
Resolution Number 2015-12 and 2015-13, calling on the United 
States government to consult with Native Americans to address 
international repatriation, and to take affirmative actions to 
stop the theft and illegal sale of tribal cultural items both 
domestically and internationally.
    APCG continues to note that Pueblo Indian tribes of the 
southwestern United States have been disproportionately 
affected by the sale of tribal cultural items, both 
domestically and internationally, in violation of Federal and 
tribal laws.
    More recently, in New Mexico--more recently, the New Mexico 
State Legislature passed a joint memorial authorizing the New 
Mexico Attorney General to consult with the Indian tribes of 
New Mexico to create stronger state laws, to stop the theft and 
illegal sale of tribal cultural items within the state of New 
Mexico.
    Last month, an initial meeting was held in Santa Fe between 
the New Mexico Attorney General and the Indian tribes of New 
Mexico where many concrete recommendations were put forth for 
discussion.
    The Pueblo of Isleta believes that both the state and the 
Federal Government need to strengthen their respective laws in 
order to prevent this kind of illegal activity from occurring.
    It is a major problem for our communities, our livelihood, 
and our way of life.
    Because Senate concurrent Resolution 49 was voted on 
favorably by the Senate recently, it is my hope that the 
difference in language between this and the companion House 
Resolution is quickly resolved so it can be fully implemented.
    Thank you very much, and I will answer any questions that 
are put forth to me. Thank you so much.
    Senator Udall. Thank you so much, Governor Torres, and 
thank you for sharing that very disturbing situation with us in 
terms of the purchase back.
    Please proceed, now, President Begaye.

   STATEMENT OF HON. RUSSELL BEGAYE, PRESIDENT, NAVAJO NATION

    Mr. Begaye. Yah-Ta-Hey.
    Senator Udall. Yah-Ta-Hey.
    Mr. Begaye. [Native American Language spoken.]
    My name is Russell Begaye, President of Navajo Nation. I 
just want to thank you, Senator Udall and Senator Heinrich, for 
holding this field hearing right here in my home state of New 
Mexico.
    Last year, in 2015, we had to send a delegation to Paris to 
buy back basically one of the most sacred of all of our 
ceremonial masks, the Yei bi Chei. And earlier this year again, 
same thing happened, 2000 percent increase in the demand--on 
the demand in terms of the price of these objects.
    And, so, in 2016, I sent a medicine man out to Paris to 
retrieve these in an honorable and respectful way.
    And, also, today, the National Park Service is holding 
hostage the remains of Navajo people and sacred objects taken 
from Canyon De Chelly, the heart of the Navajo Nation, being 
held in the city of Tucson today.
    I don't know why we have to go into litigation to retrieve 
these objects, so we're demanding that the U.S. government 
return these remains, and these sacred objects taken from the 
Canyon De Chelly, the heart of the Navajo Nation immediately, 
and we're asking members of Congress, Senator Udall, Senator 
Heinrich, that you communicate with the Department of Interior, 
that these remains and these objects be returned immediately. 
Take it out of court where it should not have--where it should 
never be.
    And, so, as Navajo Nation entrusted with the protection of 
funerary objects, sacred objects, objects of cultural 
patrimony, since the beginning of time. As President of Navajo 
Nation, I take this responsibility very seriously.
    So I'm humbled to share the responsibility with our past 
leaders and the medicine people who lead our ceremonies and our 
sacred prayers.
    These objects are central to our identity and critical to 
our future as a people. They are as important as our language, 
as important as for sacred Navajo mountains, and it's important 
as this land that we have lived on since time immemorial.
    Past leaders and traditional healers have worked tirelessly 
behind the scenes for decades for return of cultural patrimony. 
They have raised awareness of importance of these issues to the 
world. They have also engaged in political and academic 
leaders. These leaders have introduced many pieces of landmark 
legislation, including the Native American Graves Protection 
Act to provide security for not only the benefit of the Navajo 
Nation, but for Indian Country as a whole.
    As President of the Navajo Nation, I'm in full support of 
these legislative actions.
    Before many of the current cultural resource protections 
were enacted, thousands of Navajo objects of cultural patrimony 
were taken, stolen, and sold by people who have no right to 
sell them. We recognize that some folks want to admire our art 
and study our archeology for intellectual gain.
    However, our object of cultural patrimony are often 
distinct from our folk art and jewelry. Our sacred objects are 
not to be hung on walls for decoration in mansions, are 
cataloged and placed in storage bins and museum--in museum 
warehouses around the world. They were and are constructed to 
maintain our sacredness and wholeness of our people.
    As such, we request Congress, that Federal Government pass 
legislation to further protect and repatriate our cultural 
heritage. These laws have timelines and teeth for compliance.
    In our dealing with the auction house in Paris, we ask and 
demanded that they take these objects off the auction block, 
but they refused to do so. I asked specifically that I talk 
directly to the owners of these objects, and I was refused 
also.
    And, so, having gone through the White House, going through 
members of Congress, to the Attorney General and to the 
country, to government of France, to try and get these objects 
off of the auction block. We were unsuccessful. We turned to a 
legal firm in the City of Paris to help us to negotiate the 
return of these sacred objects, which we had to do. We had to 
pay, when we should not have to pay for these objects at a 
1,000 percent increase because of my negotiation with the 
auction house, we finally were able to return these objects by 
having a medicine man flown out there and have him purchase 
these objects and return them back to the Navajo Nation land.
    So, we commend the House and the Senate for passage to 
protect patrimony resolution. We also look forward to working 
with Congress and the administration to enact current measures, 
including the STOP Act, a bill to prohibit the exporting of 
sacred and Native American items, and increased penalties for 
stealing and illegally trafficking tribal cultural patrimony. 
And places off the Navajo Nation, places like Bears Ears. We 
know there are people that are robbing those sacred objects, 
that are in those places, and so we're asking that protection 
be not only on Indian Trust land, but on Indian Country, like 
the Bears Ears, and other places like that, like the Grand 
Canyon.
    So, again, thank you for listening to my testimony, and I 
will be willing to take any questions. Thank you.
    [The prepared statement of Mr. Begaye follows:]

  Prepared Statement of Hon. Russell Begaye, President, Navajo Nation
    Good morning Chairman Udall and members of the Committee.
    My name is Russell Begaye. I am president of the Navajo Nation. I 
want to thank the Committee, Chairman Barrasso, Senator McCain, and 
Senator Udall for holding this field hearing on an important matter 
that affects all of Indian Country.
    The Navajo Nation has been entrusted with the protection of 
funerary objects, sacred objects and objects of cultural patrimony 
since the beginning of time. As president of the Navajo Nation, I take 
this responsibility very seriously.
    This is not just my responsibility as president of the Navajo 
Nation. I am humbled to share the sacred responsibility with our past 
leaders, our cultural teachers, and the medicine people who lead our 
ceremonies and our sacred prayers. We believe that through their 
practice and use of some of our sacred objects, they restore balance, 
health, and spirituality and bring us together as a community. These 
objects are also central to the identity of the Navajo people. They are 
critical to our future as a people. They are as important as our 
language, as important as the four sacred Navajo mountains and as 
important as this land that we have lived on since time immemorial.
    Past leaders and traditional healers have worked tirelessly behind 
the scenes for decades for the return of our cultural patrimony. They 
have raised awareness of the importance of these issues to the world. 
We have a responsibility to them to continue the protection of our 
identity.
    The United States government, Native American cultural and 
political leaders and the academic world have introduced many pieces of 
landmark legislation in the past hundred years to provide protections 
for not only the benefit of the Navajo Nation, but for Indian Country 
as a whole. We are thankful for these efforts. From time to time, we 
must revisit these cultural protection laws based on current world 
events, changing technological times and add protections that were 
unseen at the time these laws were enacted.
    We are here to improve upon the body of cultural resource 
protection law, domestically and internationally.
    As president of the Navajo Nation, I am in full support of federal 
and legislative measures that address the illegal sale and trafficking 
of Native American cultural patrimony. We thank lawmakers and 
administration officials for their leadership and support on these 
matters. We look forward to the Government Accountability Office's 
report on how the federal government currently investigates the theft 
and sale of tribal items and what reforms can be made to further 
prevent this practice in the future that will begin in early 2017.
    Before cultural resource protection laws were enacted, thousands of 
objects of cultural patrimony were taken, stolen and sold by people who 
had no right to sell them to European traders, collectors, museums and 
academic institutions. We recognize that the Western European concept 
of art, archeology, anthropology and government encompasses a view of 
cultural patrimony as objects to be studied and admired for 
intellectual gain. There are professors who have spent their entire 
careers studying us and entire departments devoted toward teaching 
other students about us.
    However, these objects of cultural patrimony are not like the 
Western European concept of icons and statuaries that are found in your 
churches, displayed in your museums or sold at auction or traded on the 
black market. These sacred objects are not to be studied, hung on walls 
to be admired or cataloged and placed in storage bins in annexes across 
the world. They were and are constructed to maintain our sacredness and 
the wholeness of our people. Without them, we are not a whole people. 
We believe this contributes to the societal problems that we have 
experienced and endured since they left the four sacred mountains. The 
levels of our current societal ills were never seen until these 
cultural objects have left our presence. With each return of cultural 
items that belong to the Navajo people, we believe they restore our 
balance. They restore our harmony.
    In addition, museum curators, scientists and collectors do not have 
the inherent knowledge to care for them in a sacred way. Only medicine 
people know how to care for these objects in a sacred way and to use 
them in the way they were meant to be used, in our ceremonies to help 
restore balance and heal our people. In some cases, they are returned 
to nature within our four sacred mountains in a way known only to our 
medicine people.
    It is unfortunate that we as a sovereign tribal nation face 
difficulty in utilizing current U.S. laws to protect our sacred objects 
and remains within the jurisdiction of international states. As such, 
we request Congress and the federal government to join together 
diplomatically and through passage of legislation to enhance protection 
and repatriation of our human remains, funerary objects, sacred objects 
and objects of cultural patrimony. These laws must have timelines, 
unambiguous definitions, defined roles and teeth to enforce their 
compliance.
    The Navajo Nation has firsthand experience in repatriation of our 
sacred Navajo masks from an auction house in Paris France. While we 
were successful in the return of these living and breathing beings, it 
was a difficult endeavor mainly because France does not provide the 
legal protections and repatriation for these objects. The French people 
and their government also did not understand our view that these 
objects are sacred and were not created to hang on walls or in museums 
as art. France equates our interest in return of these objects as a 
religious issue, however they do not also take it into consideration 
that they are part of the identity of our people to exist. Other 
nations likely take a similar view. As such, we must educate all about 
these issues--not just the French people but also the European Union 
and other nations harboring our sacred objects and objects of cultural 
patrimony.
    Our sacred artifacts and cultural items are an important part of 
the Navajo culture and beliefs. They provide us a sense of who we are 
and provide us sustenance for our physical, emotional and spiritual 
well being. This is why we consider these important in protecting and 
we will continue to work to protect these items and their rightful 
return to us.
    We commend the House and Senate for passing the PROTECT Patrimony 
Resolution, H. Con. Res. 122. We look forward to the House passing the 
amended concurrent resolution that will ultimately send a powerful 
international message by our lawmakers about the importance of 
protecting Native American cultural patrimony.
    We look forward to working with Congress and the administration to 
enact current measures including the Safeguard Tribal Objects of 
Patrimony Act, S. 3127, a bill to prohibit the exporting of sacred 
Native American items and increase penalties for stealing and illegally 
trafficking tribal cultural patrimony.
    By passing these cultural protection laws, Congress will take 
another step in making history in its endeavor to make the Navajo 
Nation and all tribes across the country whole after experiencing the 
erosion of their cultural identities. Congress has the opportunity to 
contribute to our h centszh cents, the beauty way of our life. We urge 
you to take advantage of this opportunity. The Navajo Nation and Indian 
Country are grateful for your service and long-term vision and wisdom 
on this matter. Thank you.

    Senator Udall. Thank you very much, President Begaye. And 
thank you also for sharing with us the objects, and what's 
happened there, especially the Yei bi Chei ceremonial mask.
    Thank you very much.
    Please proceed, Dr. Schaaf.

        STATEMENT OF GREGORY SCHAAF, Ph.D., HISTORIAN; 
PROFESSOR OF NATIVE AMERICAN STUDIES, UNIVERSITY OF CALIFORNIA 
                           (RETIRED)

    Dr. Schaaf. My name is Dr. Gregory Schaaf. I am a retired 
professor of Native American Studies from the University of 
California. I have Ph.D. in American Indian Histories, a 
separate degree in art history. I have served as a historian 
for over 50 different Native American nations across this 
country, including all 19 Pueblos.
    I am retired from the National Council of the Smithsonian, 
National Museum of the American Indian.
    My wife and I, Angie, are the authors of 17,000 Native 
American Artists Biogeographies.
    I'm also the founder of--cofounder of Santa Fe's Indian Art 
Collectors Circle, which have met over 100 months in a row, the 
first Wednesday of each month, which invited collectors and 
Native American artists to come together to do show-and-tell, 
and each one would bring an item or two, and we would share our 
knowledge about each item. We didn't allow any buying, selling, 
or trading. But it helped many young Native American artists be 
introduced directly to collectors, which helped them in their 
careers as fine artists.
    Also I served in the New Mexico Governor's Task Force for 
Authenticity of Native American Art. And I am a specialist in 
developing tribal archives, tribal libraries, tribal museums.
    When Acoma Pueblo decided they wanted a museum, we dreamed 
up the idea and how it was going to actually be created, in my 
living room. So, I'm very honored to be here today with the 
Governor of Acoma Pueblo, and the Governor of Isleta Pueblo, 
and the leader of the Navajo Nation. It's truly a great honor 
to be here.
    I'm going to begin by revealing a secret. I have never 
revealed this secret for 35 years, but I'm going to tell you 
today. For 35 years I have been involved secretly in 
negotiating the repatriation of hundreds and hundreds of Native 
American sacred objects. My work was important that it be kept 
secret.
    I'm the one who's been involved behind the scenes 
negotiating the return of the Acoma Shield. I had the deal in 
place within two weeks. It was ready to happen. And then other 
forces came into play, other people, other agencies got 
involved, and now months have passed. I'm nervous, okay? I'm 
nervous. The clock is ticking. I don't want this person who 
consigned this Shield to withdraw his offer, okay? Because I 
want you-all to know today, everyone in this room, he is 
prepared to turn this Shield over today before the sun's down. 
There's only one more step that has to take place, and I don't 
want to embarrass anybody, so I'm not going to tell you what 
that step is publicly. But privately, if you want to know, I 
will tell you. And if you can use your power to make that 
happen, that Shield will come home right away.
    I'm also going to reveal another secret. This man who owns 
this Shield, I don't know his name. I'm dealing through an 
intermediary. I ask questions. He sends responses back. My 
first question was, what does it take to make a deal?
    In order to make these sacred objects come home, you have 
to think from the perspective of other people from other 
cultures. You have to think from the perspective of the 
collector themselves. Why do they collect this? Who are they? 
Are they good and honorable people? Are they dishonorable? Are 
they thieves? Are they smugglers? Or is there a black market 
going on? I mean, I read those Tony Hillerman novels. I know 
that must be true. I read it in a book.
    But, truthfully, I have known these collectors for a long 
time, and most of them really are honorable people and they 
want these things to be returned.
    Now I'm going to reveal another secret, my second secret. 
This man has told me that if all goes well, and this Shield is 
returned home to Acoma Pueblo, this man is prepared to donate 
his entire collection, 2,000 objects of important cultural 
objects. They belong to many different pueblos, to the Navajo 
Nation, to the Apaches, to other Native peoples in the 
southwest. He's in his--he's very elderly, he's collected all 
his life. I told him, I said, ``I bet your children hated that 
collection, don't they?'' He said, ``How did you know? My kids 
hate this stuff. They can't wait for me to die so they can send 
it off to auction so that they can take it down to the pawnshop 
and get rid of it, because instead of getting a new bicycle or 
a new doll, mom and dad had to go down and get a new basket or 
a pot or a shield, or something, and I didn't get what I 
wanted, so the kids hate it.''
    One of our big challenges is to try to attract the younger 
generation of collectors. And I can tell you that if you 
criminalize Native American art, if you create a punitive 
approach to this, in certain ways, which I want to protect you 
from doing, and you use a punitive action, these objects--
first, overnight, there will be a major black market created.
    And number 2, these collectors that are honorable that 
don't want to have their names and lives dragged through the 
mud. They don't want to be charged with these huge felonies. 
How can you stop them from building a big fire in their 
fireplace and throwing the shield in, and shoveling the other 
things in and destroying it? How can you stop them from going 
on to the desert and digging up a big hole and throwing these 
things there and destroying them forever?
    That's the punitive approach, and that's what this club 
symbolizes, because as I was negotiating for the return of the 
Shield, we talked about the carrot and the stick approach.
    The carrot and the stick approach are the amendments to 
NAGPRA, which basically give a carrot, two years to return 
these objects, and you're going to be home free. And the stick, 
if you don't, this is what's going to happen to you. You're 
going to get charged with a felony, you're going to be fined 
hundreds of thousand of dollars, you could go to prison, okay?
    These people will not allow that to happen. They're 
lawyering up right now, as we speak.
    My approach is to advocate the diplomatic approach, which 
is symbolized by this wampum belt. When I first testified 
before the United States Senate Select Committee, I was very 
close to Senator Daniel Inouye. This is my testimony. I brought 
you copies to take home with you.
    And, at that time, the chiefs of the Iroquois Confederacy 
made this wampum belt for me, their wives did. So it symbolizes 
the diplomatic approach to the return of these objects. Who was 
one of my great inspirations for this diplomatic approach? 
Because we have a choice. We have the diplomatic approach, 
which is the carrot and carrot approach, where everybody wins, 
where everybody holds their head up high in dignity.
    And we have the carrot and the stick approach, where all of 
a sudden these people hide, or they destroy things. Who was one 
of my great--some of my great inspirations to do this 
diplomatic approach? Well, Senator, it was your mother and 
father. And here's a picture that proves it. Here's a picture 
of Senator Udall's mother and father dancing with the Indians 
at the creation of the Institute of American Indian Arts, 
demonstrating the power of a diplomatic approach. They 
succeeded.
    That is a great inspiration to me. I would like to 
repatriate this to you, today. I will set it here and then we 
will hand it to you.
    Also to prove good faith, we are repatriating three boxes 
of sacred objects today at this very moment. This box contains 
sacred objects, which are over 100 to 150 years old. And this 
goes back today to the Navajo Nation.
    Mr. Begaye. Thank you.
    Dr. Schaaf. This box contains objects from the Isleta 
Pueblo Nation. And at this time, I'd like to return those to 
the Isleta Nation. This box contains sacred objects from the 
Acoma Nation, 100 to 150 years old. And at this time, I'd like 
to return these objects and give them back to the Acoma Nation, 
so that they might go home.
    Why do I do that? I do that because we must lead by 
example. We must not vilify the collectors. Embrace the 
collectors, make friends, use kind and gentle words. Dance with 
them around the circle. Invite them to meet with Native people. 
Bring these people together, but if we do, and if we use this 
diplomatic approach, I believe thousands and thousands of 
objects will be returned, and if we don't, there's always the 
club.
    I'm willing to help all of your committees, all of the 
Federal agencies. I'm willing to train at least one person 
within each of the Native Nations the diplomatic approach.
    I will also teach each Federal agency that wish--that's 
involved in this, the DOJ, the State Department, the Bureau of 
Indian Affairs, because those people that were up, they 
wouldn't know a sacred object if it was sitting in front of 
them. They've never seen them before. Just because they toured 
our museum, doesn't mean they know. And there's no machine you 
can plug in and say, ``Yup, that's a sacred object. Nope. That 
one's not.''
    Before you criminalize Native American art, please let me 
help you, because if we do, these things will be returned, and 
that's our goal.
    Thank you very much.
    [The prepared statement of Mr. Schaaf follows:]

 Prepared Statement of Gregory Schaaf, Ph.D., Historian; Professor of 
      Native American Studies, University of California (Retired)
I. Introduction
    For over 35 years, I have served as a tribal diplomat, helping to 
repatriate many, many cultural items to Native American spiritual 
leaders. I have provided this service at the request of respected 
tribal elders. They have asked me to help negotiate privately the safe 
return of sacred objects to their home tribal communities. My work has 
been kept so secret; today is the first time I have been publicly 
identified. In recent months, I have sought to facilitate the return of 
the Acoma shield.
    Tribal elders have entrusted me with these secret assignments, 
because they grew to trust me after years of service as a tribal 
historian. For decades, I have helped tribes build tribal libraries, 
tribal archives, and tribal museums. I also have helped traditional 
elders prepare statements for the United Nations and testimony for 
international conferences. In 1983, I testified in behalf of the 
Iroquois Confederacy before the United States Senate Select Committee 
for Indian Affairs, then chaired by my late friend, Senator Daniel 
Inouye. Our efforts resulted in a resolution being passed in the U.S. 
Senate, 100-0, passed the House overwhelmingly, and signed by the 
President, officially recognizing ``Iroquois Influences on the U.S. 
Constitution.'' My testimony, published in this book, has been used in 
Native American schools and major universities. The Spanish Edition was 
paid for by the government of Mexico and distributed to Mexican judges 
and politicians interested in amending the Constitution of Mexico. Our 
Native American publications have attracted diverse groups of readers 
around the world.
II. How can we best facilitate the safe return of these Native American 

        Sacred Items?
        Answer. There are two primary approaches to repatriation: A. 
        ``Punitive'' and B. ``Diplomatic.''

    In my experience, there are two ways to address the return of 
sacred items: first, the ``Punitive Approach,'' which could also be 
called the ``Carrot and the Stick Approach''; or, second, the 
``Diplomatic Approach,'' which could also be called the ``Carrot and 
the Carrot Approach.'' In my estimation, the Diplomatic Approach is by 
far the better path.
A. ``The Punitive Approach''
    In my description of this approach, the ``Carrot'' is the ``Sacred 
Object.'' The ``Sticks'' are laws that would criminalize ``possession, 
sale, transfer and export'' of items considered ``sacred'' or ``objects 
of cultural patrimony.'' In my professional opinion, I advise against 
the ``Punitive Approach'' for the following reasons:

        1.  Out of fear some people, facing the threat of felonies, 
        jail terms, huge fines, legal fees, and public humiliation may 
        simply get rid of these items in whatever way possible, 
        including possibly their destruction. This is the worst fear of 
        tribal elders

        2.  ``Punitive Laws'' would create a black market for items not 
        destroyed. This is a major concern expressed by tribal elders.

        3.  ``Punitive Laws'' probably would be judged 
        ``unconstitutionally vague.'' The public and the courts would 
        need to have a way to reasonably determine what is legal and 
        what is not. No scientific tests exist to determine what is 
        ``sacred'' and what is not.

        4.  ``Punitive Laws'' would require illustrated lists defining 
        what is ``sacred'' and what is an ``object of cultural 
        patrimony.'' Tribal elders do not want to create illustrated 
        lists of sacred items.

    Of course laws against theft should still stand as a deterrent.
B. ``The Diplomatic Approach''
    In my description of this approach, the ``Carrot'' is the ``Sacred 
Object,'' and the other ``Carrots'' are ways in which all parties 
``win.'' This means everyone is respected and allowed to hold their 
heads up high in dignity.
    I support the ``Diplomatic Approach'' for the following reasons:

        1.  The time is right to encourage this approach because, 
        increasingly, many collectors, because of their love of these 
        objects and their appreciation of Native cultures, want to see 
        ``sacred objects'' go back to Native American Spiritual Elders.

        2.  Diplomacy does not create a black market, but rather it 
        promotes transparency and open negotiations.

        3.  Diplomacy would not require law enforcement, related 
        expenses, and cases that would over burden the courts. 
        Diplomacy does not require illustrated lists. Diplomats trust 
        the tribal elders to identify what they would like returned.

    I wish to underscore the importance of collectors for Native 
American Nations and artists. Imagine what would happen, if collectors 
decided to stop collecting. I am concerned about the future of Native 
American artists. Instead of vilifying collectors, I believe we need to 
do everything we can to attract a younger generation to be patrons of 
Native Arts.
    To help make the point that collectors are mostly kind-hearted 
people, I have been given to understand that the current holder of the 
Acoma shield wishes its safe return ``home'' to Acoma. I believe that 
such a return, using the Diplomatic Approach, will lead to thousands of 
additional objects, some sacred, some historic, some works of art, 
coming back voluntarily to Native American Nations. Let's use the 
diplomatic approach to facilitate the safe return of Native American 
Sacred Items to their rightful, tribal caretakers.
Laws Under Consideration For Amendments
1. NAGPRA--The Native American Graves Protection Act
2. ARPA--The Archaeological Resource Protection Act
3. IACA--The Indian Arts and Crafts Act
    Amendments to these laws, if not carefully written, could affect 
other laws related to Inter-state and International Commerce, as well 
as various treaties between the United States and foreign nations. 
Serious Constitutional questions also could be raised. However, I do 
have many good ideas for amending these laws in ways that will benefit 
Native Americans and the general public.
Cost Analysis of Proposed Amendments
    The ``Punitive Approach''--While initial costs may be minimal, the 
potential long-term costs could easily become many millions of dollars 
in annual appropriations. The actual cost of criminalizing Native 
American art collecting will involve authorizations for personnel in 
various federal agencies and special training of additional law 
enforcement personnel. Additional costs would require appropriations 
for law enforcement equipment, as well as travel, computer databases, 
networking, and other investigative costs required in the ``Punitive 
Approach.''
    OR, if the ``Diplomatic Approach'' is chosen, the costs are 
minimal, involving travel expenses, educational training, and some 
legal consulting costs. If proponents of the ``Diplomatic Approach'' 
requested assistance from the public at large, donations could easily 
cover all the costs of the ``Diplomatic Approach.'' In this best-case 
scenario, the cost to the U.S. government and the U.S. taxpayers would 
be ZERO.
Conclusion
    In my professional opinion, the ``Diplomatic Approach'' is 
preferable to the ``Punitive Approach.'' Let us revisit our purpose:
    MAIN GOAL: To help facilitate the safe return of Native American 
Sacred Items to their rightful, tribal caretakers.
    I would encourage the Committee, as it deliberates on the most 
effective legislation going forward, to not only embrace the Diplomatic 
Approach, but to affirmatively engage the collecting community for its 
input on how to strike an appropriate balance in the law in order to 
facilitate the return of sacred objects.

                         supplemental testimony
    At the end of my verbal testimony on October 18, 2016, before the 
Senate Committee on Indian Affairs, I gave gifts to some of the 
participants. To Senator Tom Udall, I gave him an original photograph, 
signed by his father, Stewart Udall, depicting Tom's mother and father 
dancing with Native Americans. I stated for the record that the 
photograph symbolized the ``Diplomatic Approach'' to Indian Affairs. My 
dear friend, the late Senator Daniel Inouye, former Chair of the Senate 
Committee on Indian Affairs agreed that the ``Diplomatic Approach'' 
often is the best. He called it ``Quiet Diplomacy.''
    The second present I gave to Senator Martin Heinrich: two of my 
most recent books, ``American Indian Jewelry II'' and ``American Indian 
Jewelry III,'' containing illustrated biographical profiles of over 
5,000 Native American silversmiths and goldsmiths. I told Senator 
Heinrich that these books symbolize all the Native People who are 
served by the Committee. I believe it is important to never forget who 
we are working for. . .the People.
    Regarding the matter of how to best help Native American Spiritual 
Leaders to get back ``Sacred Items,'' my 35 years of experience 
confirms that ``Quiet Diplomacy'' is the best way. The late Mohawk 
Chief Jake Swamp explained it simply: ``These are matters for the Peace 
Chiefs, not the War Chiefs.''
    The presents I gave the tribal leaders were beautiful, but commonly 
shared items made by artists from their cultures. Governor Riley stated 
that the Senate hearing was ``not the time or place'' to give the 
gifts. I apologized. My intentions were all the best. I sought to lead 
by example. I hoped to inspire others to give presents and ``sacred 
objects'' to Native American people. In this regards, I was successful, 
because people told me of their wishes to return items. Spiritual 
leaders from two other Pueblos later hugged me and asked if I would 
help them with the ``diplomatic approach.'' I also was given presents, 
a tobacco pouch from a Native American woman and two silver pins, one 
for me and one for my wife, Angie, from the Director of the Pueblo 
Indian Cultural Center.
    I believe in the natural goodness of people. Native American art 
collectors and Native American elders are mostly kind and honorable 
people. The relationships we share are precious and heart-felt. Most 
people who are not collectors find these relationships hard to 
understand. However, once you experience old-time, Pueblo hospitality 
at a Feast Day, you are one step closer to learning why Native American 
friends are among the best friends in the whole world. This is why I 
wrote 17,000 Native American artist biographies. . .to help my friends 
live honored lives as fine artists. Among my presents were textiles. 
These symbolize traditional art forms in danger of dying out. For over 
20 years, I promoted the ``Pueblo Indian Textile Revival Project.'' I 
obtained century-old native cotton seeds from the Federal Seed Bank 
along with traditional indigo and cochineal dyes. I bought a ton of 
wool. I recorded biographical profiles for every past and present 
Pueblo weavers. Then, I built a collection of Pueblo Textiles and 
offered it free of charge for museum exhibitions. The first was for six 
months at the Pueblo of Pojoaque Poeh Museum. The most recent was at 
the Pueblo Indian Cultural Center, for two years, called ``Gathering 
the Clouds.''
    As part of my verbal testimony, I also held two Native American 
objects: The first, a replica of the ``George Washington Wampum Belt,'' 
symbolizing the original promises exchanged over 200 years ago between 
the Iroquois Six Nations and the United States of America. This belt 
was made for me as a gift from the wife of the late Iroquois Chief Jake 
Thomas. She explained the reason why she made this belt for me was so I 
could ``remind White people what were the original promises made to 
Indian people. . .Peace for as long as the Sun shines and the grass is 
green and the rivers flow. . .'' What followed was a century of Indian 
wars.
    This wampum belt is a symbol of the ``Diplomatic Approach.''
    I then raised over my head a replica of the wooden war club, given 
to me as a present for helping the Lenni Lenape or Delaware Tribe 
record their oral history, to develop a library, tribal archives and 
tribal museum. One-by-one, the elders came forward, shook my, hand and 
whispered in my ear, ``Thank you for helping us preserve our culture.''
    For the purpose of the hearing, I raised an old style, Indian war 
club, as a symbol of the ``Punitive Approach,'' also called the 
``Carrot and the Stick.'' This war club further symbolizes the current 
proposals to amend NAGPRA, ARPA, and other federal laws. While the war 
club made a dramatic impact on the audience, getting my point across, 
some saw the war club as offensive. My intent was not to offend, but to 
present the harsh impact such laws could have on well intentioned, Non-
Indian collectors, as well as some Native American people caught up in 
the fervor of internal disputes.
    Who is going to enforce these new laws? ERO Special Response Teams, 
Special Response Team Members of ICE, Immigration and Customs 
Enforcement, Department of Homeland Security, as well as special 
operation teams from the BIA, DOI, BLM, FBI and others. See their 
training video: https://www.ice.gov/video/ero-special-response-team#
    After the meeting, Governor Riley and I spoke privately about his 
concern for my use of the replica war club. I apologized to him. I 
should have told him in advance and received his approval to use the 
war club as a symbol of the ``punitive approach.'' Governor Riley 
explained that I should not have called the presents ``sacred.'' I 
apologized. I only meant it in the way the Hopi say, ``Everything in 
the whole world is sacred.'' The problem is that the proposed 
``punitive'' law will make everything ``sacred'' illegal. Governor 
Riley explained that no one could tell him what is ``sacred.'' He 
explained that he is a ``practitioner'' and I am a ``student.'' In 
response, I became humble and agreed with him. However, disagreements 
will arise, if the present draft laws are enacted, over what is sacred 
[illegal] and what is not [legal].
    The main problem with the proposed ``punitive'' law is that it is 
``impossible,'' as Governor Torres explained, and ``improper,'' as 
Governor Riley pointed out, for anyone--except certain tribal members--
to tell what is ``sacred.'' This dilemma can be avoided through the 
``Diplomatic Approach,'' is which we simply honor the requests of 
Native American religious leaders.
    In conclusion, I am very concerned about how the proposed 
``punitive'' laws could seriously damage the Native American art world 
and hurt Native American artists. Re-consider the title of this 
hearing:
    ''The Theft, Illegal Possession, Sale, Transfer and Export of 
Tribal Cultural Items.''
    The false impression is that Native American art collectors are a 
bunch of thieves and smugglers. In my lifetime experience, I have known 
many thousands of collectors. Less than a tiny fraction of 1 percent 
were thieves or smugglers. How can we recruit young collectors, if 
collectors are portrayed as the ``bad guys?'' Why is this so important? 
Good collectors are the key to keeping the Native American art world 
alive. I estimate over 100,000 Native American artists are trying to 
feed their families through the sale of the artwork. What will happen 
to them if the collectors simply stop collecting? Native American 
families will be hurt. Native American communities will become even 
poorer.
    ENDNOTE: Can you tell what is sacred and what is not?
    Under the proposed law, American citizens not only are required to 
know what is sacred, we also must know which objects are used presently 
in a ``Native American religious ceremony or ritual.'' The main problem 
is that Native American religious leaders do NOT want the public to 
know about their private ceremonies and sacred objects. Furthermore, 
Native American religious leaders do not want sacred objects to be 
photographed, so any thought of having a guidebook to sacred objects is 
absolutely forbidden. The thought of non-Indian law enforcement 
touching, photographing, placing sacred objects in plastic bags, 
holding these bags in locked evidence rooms, exposing them at press 
conferences. . .All of this is strictly forbidden.
    All of these serious problems are avoid by adopting the 
``Diplomatic Approach'' over the ``Punitive Approach.''
Short Definition: Sacred Objects
    Sacred Objects: Specific ceremonial objects which are needed by 
traditional Native American religious leaders for the practice of 
traditional Native American religions by their present day adherents.
    SOURCE: 25 USC 3001 (3)(C).
Long Definition: Sacred Objects:
    (3) Sacred objects means items that are specific ceremonial objects 
needed by traditional Native American religious leaders for the 
practice of traditional Native American religions by their present-day 
adherents. While many items, from ancient pottery sherds to arrowheads, 
might be imbued with sacredness in the eyes of an individual, these 
regulations are specifically limited to objects that were devoted to a 
traditional Native American religious ceremony or ritual and which have 
religious significance or function in the continued observance or 
renewal of such ceremony. The term traditional religious leader means a 
person who is recognized by members of an Indian tribe or Native 
Hawaiian organization as:
    (i) Being responsible for performing cultural duties relating to 
the ceremonial or religious traditions of that Indian tribe or Native 
Hawaiian organization, or
    (ii) Exercising a leadership role in an Indian tribe or Native 
Hawaiian organization based on the tribe or organization's cultural, 
ceremonial, or religious practices.
    SOURCE: Title 43--Subtitle A--Part 10
    PART 10-NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION 
REGULATIONS

    Senator Udall. Thank you very much, Dr. Schaaf. Really 
appreciate it.
    And now we will proceed with Ms. Honor Keeler's testimony.

STATEMENT OF HONOR KEELER, DIRECTOR, INTERNATIONAL REPATRIATION 
               PROJECT, ASSOCIATION ON AMERICAN 
                         INDIAN AFFAIRS

    Ms. Keeler. Thank you, Senator Udall, Senator Heinrich, and 
the U.S. Senate Committee on Indian Affairs for requesting 
testimony from the Association on American Indian Affairs.
    My name is Honor Keeler. I am the founding Director of the 
International Repatriation Project at the Association on 
American Indian Affairs, and a citizen of Cherokee Nation.
    The AAIA is a 94-year-old Indian advocacy organization, 
which has long been engaged in sacred lands protection and 
repatriation. And it helped to draft the National Museum of the 
American Indian Act in 1989, and the Native American Graves 
Protection and Repatriation Act of 1990.
    In 2014, the AIA opened an international repatriation 
office and dedicated full-time staff to this global indigenous 
issue.
    There are many important concerns that the AIA has heard 
across Indian country at our Indigenous International 
Repatriation Conferences in 2015 and 2016, regarding the 
looting of Native American sacred and burial places, and the 
sales, transfers, and exports of Native American ancestors, 
funerary objects, sacred objects, and cultural patrimony from 
tribal and traditional lands in the United States.
    All are intricately linked to the global issue of 
repatriation as a human rights issue, and the necessity to 
investigate the private and international markets that may 
involve criminal elements and intricate illegal trafficking 
systems.
    It is estimated that one million indigenous ancestors and 
cultural items are located in auction houses, private 
collections, and international repositories throughout the 
world.
    American Indian tribes through intertribal resolutions on 
international repatriation have been passed by the National 
Congress of the American Indians, the United South and Eastern 
Tribes, the Intertribal Council of the Five Civilized Tribes, 
and the All Pueblo Governors Council, stating that the movement 
of our ancestors and cultural items from burial and sacred 
places and outside of the country is a human rights issue, that 
it is pervasive and that it violates tribal and traditional 
customs and laws.
    While current Federal laws, such as ARPA, the NMAI Act, and 
the Native American Graves Protection and Repatriation Act have 
helped to create a Federal process to prevent looting on 
Federal and tribal lands, and to repatriate Native American 
ancestors and cultural items from the Smithsonian Institution 
and federally funded agencies and museums, these laws do not 
address repatriation from private collections and international 
markets.
    In order to stop the looting of Native American sacred and 
burial places, and repatriate indigenous ancestors and cultural 
items back to their communities, the AAIA recommends the 
following.
    With regards to current Federal legislation and problems, 
the U.S. Congress should, through meaningful consultation with 
tribes; one, mandate centralized training across Federal 
agencies for proper implementation and training of current 
Federal laws, such as ARPA, NAGPRA, NHPA, NEPA, and U.S. 
Customs to avoid undue burdens on tribes.
    Two, call for a full investigation into implementation of 
these laws and to reveal the extent of looting of Native 
American sacred and burial places, as well as the full extent 
of the paths through which these trafficking systems operate.
    Three, call for a report to provide actionable steps for 
Congress and agencies to take to identify funding and 
appropriations gaps, as well as legislative gaps to be 
addressed to prevent trafficking and ensure that repatriation 
occurs from private and international collections.
    Four, mandate that every agency, including the State 
Department, develop a tribal consultation policy and fully 
understand what meaningful consultations are.
    And, five, establish a Federal landing page that serves as 
a single source of information for Native Nations that includes 
all current Federal contacts, relevant laws, and each agency's 
current tribal consultation policies and information on 
proposed developments that affect American Indian tribes.
    The AIA also recommends that Congress do the following: 
One, create funding and appropriations to establish intertribal 
investigative units throughout the country.
    Two, Enact NAGPRA amendments to notify Native nations of 
missing and exchanged collections from the Smithsonian 
Institution and federally funded institutions.
    Three, establish a 30-day hold, at least, in U.S. Customs 
for Native American ancestors and cultural items, so that 
Customs may notify tribes and have meaningful consultations 
over the held items to determine if it has been taken from a 
burial or sacred place or from the tribe.
    Four, ensure that Native Nations can represent themselves 
at the UN, and other international forum, and are involved in 
any planning processes to develop mechanisms for international 
repatriation, including the development of databases so that 
proper cultural protocols are put in place.
    Many tribes do not want photographs of their ancestors and 
cultural items displayed, as they are sacred or integral parts 
to the exercise of their religious and cultural belief.
    Five, mandate that the State Department create an office 
and assign staff to assist over 567 tribes with their 
International Repatriation efforts.
    And, six, investigate entering into bilateral and 
multilateral agreements with other countries concerning the 
repatriation of Native American ancestors and cultural items.
    The AAIA supports bipartisan efforts to stop the 
trafficking of indigenous ancestors and cultural items, such as 
the protect patrimony resolution. However--and the STOP Act.
    However, we also advocate for the strengthening of current 
Federal laws and increasing penalties in the ARPA and NAGPRA 
laws.
    In addition, we support efforts by Congress and the GAO and 
other agencies to investigate the theft, illegal possession, 
sale, transport, and export of the tribal cultural items, and 
urge them to look into the issues tribes are facing in illicit 
trafficking, and international repatriation that we have 
explained here today and in our written testimony. We thank you 
for your time and attention to these important matters, and 
look forward to the future, in returning our ancestors and 
cultural items home.
    Thank you. I will take any questions.

      Prepared Statement of Honor Keeler, Director, International 
      Repatriation Project, Association on American Indian Affairs
    Thank you, Senator Udall, Senator Heinrich, and the U.S. Senate 
Committee on Indian Affairs for requesting testimony from the 
Association on American Indian Affair (AAIA). My name is Honor Keeler. 
I am the founding Director of the International Repatriation Project at 
the AAIA and a citizen of Cherokee Nation. The AAIA is a 94-year-old 
Indian advocacy organization, which has long been engaged in sacred 
lands protection and repatriation. It helped to draft the National 
Museum of the American Indian Act \1\ of 1989 (NMAI Act) and the Native 
American Graves Protection and Repatriation Act \2\ of 1990 (NAGPRA). 
In 2014, the AAIA opened an International Repatriation Office and 
dedicated full time staff to this global Indigenous issue.
---------------------------------------------------------------------------
    \1\ National Museum of the American Indian Act, Pub. L. No. 101-
185, 103 Stat. 1336 (codified as amended at 20 U.S.C.   80q to 80q-15 
(2006).
    \2\ Native American Graves Protection and Repatriation Act, Pub. L. 
No. 101-601, 104 Stat. 3048 (1990) (codified as amended at 25 U.S.C.  
 3001-3013 (2006) and 18 U.S.C.  1170 (2006).
---------------------------------------------------------------------------
    There are many important concerns that the AAIA has heard across 
Indian country and during our Indigenous International Repatriation 
Conferences in 2015 and 2016, regarding the looting of Native American 
sacred and burial places, and the sales, transfers, and exports of 
Native American Ancestors, funerary objects, sacred objects and 
cultural patrimony (``cultural items'') from tribal and traditional 
lands and the United States. All are intricately linked to the global 
issue of repatriation as a human rights issue and the necessity to 
investigate the private and international markets that may involve 
criminal elements and intricate illegal trafficking systems. It is 
estimated that one million Indigenous Ancestors and cultural items are 
located in auction houses, private collections, and international 
repositories throughout the world. \3\
---------------------------------------------------------------------------
    \3\ Resolution #SAC-12-008, Support for International Repatriation, 
National Congress of American Indians (October 21-26, 2012). Resolution 
No. 12-07, A Resolution on International Repatriation of the Five 
Civilized Tribes, The Inter-Tribal Council of the Five Civilized 
Tribes, October 12, 2012. Resolution #SD-15-074, Supporting the 
International Repatriation Project of the Association on American 
Indian Affairs (October, 2015). All Pueblo Governors Council 
Resolutions Nos. 2015-12 and 2015-13 (2015).
---------------------------------------------------------------------------
    American Indian tribes through Intertribal Resolutions on 
International Repatriation have been passed by the National Congress of 
American Indians (NCAI), the United South and Eastern Tribes (USET), 
the Intertribal Council of the Five Civilized Tribes, and the All 
Pueblo Governors Council, stating that the movement of our Ancestors 
and cultural items from burial and sacred places and outside of the 
country is a human rights issue, that it is pervasive, and that it 
violates tribal and traditional customs and laws. \4\
---------------------------------------------------------------------------
    \4\ Id.
---------------------------------------------------------------------------
    While current federal laws, such as the Archaeological Resources 
Protection Act (ARPA), \5\ the National Museum of the American Indian 
Act (NMAI Act), and the Native American Graves Protection and 
Repatriation Act (NAGPRA) have helped to create a federal process to 
prevent looting on federal and tribal lands, and to repatriate Native 
American Ancestors and cultural items from the Smithsonian Institution 
and federally funded agencies and museums, these laws do not address 
repatriation from private collections and international markets. In 
order to stop the looting of Native American sacred and burial places, 
and repatriate Indigenous Ancestors and cultural items back to their 
communities, the (AAIA) recommends the following.
---------------------------------------------------------------------------
    \5\ Archaeological Resources Protection Act, 16 U.S.C.  470 cc 
(1979) (amended 1988).
---------------------------------------------------------------------------
    With regard to current federal legislation and problems, the U.S. 
Congress should, through meaningful consultations with tribes:

        1. Mandate centralized training across federal agencies for 
        proper implementation and training of current federal laws, 
        such as ARPA, NAGPRA, NHPA, NEPA, and U.S. Customs to avoid 
        undue burdens on tribes;

        2. Call for a full investigation into implementation of these 
        laws and to reveal the extent of looting of Native American 
        sacred and burial places, as well as the full extent of the 
        paths through which these trafficking systems operate;

        3. Call for a report to provide actionable steps for Congress 
        and agencies to take to identify funding and appropriations 
        gaps, as well as legislative gaps to be addressed to prevent 
        trafficking and ensure that repatriation occurs from private 
        and international collections;

        4. Mandate that every agency, including the State Department, 
        develop a ``Tribal Consultation Policy'' and fully understand 
        what ``meaningful consultations'' are; and

        5. Establish a federal landing page that serves as a single 
        source of information for Native Nations that includes all 
        current federal contacts, relevant laws and each agency's 
        current tribal consultation policies, and information on 
        proposed developments that affect American Indian tribes.

    American Indian tribes, Alaska Natives, and Native Hawaiians 
involved in international repatriation are experiencing many 
difficulties repatriating Ancestors and cultural items, including: 
locating them in private and international repositories; refusals by 
auction houses, collectors and international repositories to accept 
historically documented proof, to consult, and to repatriate; an 
excessive burden of proof to prove ownership of Ancestors and cultural 
items, rather than requiring auction houses, collectors, and 
repositories to produce documentation that the tribes have given free, 
prior, and informed consent to sales; the length of time it takes to 
repatriate internationally; and the failure of international courts, 
museums, auction houses, and foreign governments to recognize tribal 
courts and tribal laws, even though the United States, through its 
trust responsibility, statutory interpretations, government-to-
government relationship, and political relationship with federally 
recognized tribes should support tribal governments.
    The AAIA also recommends that Congress do the following:

        1. Create funding and appropriations to establish Intertribal 
        Investigative Units throughout the country;

        2. Enact NAGPRA amendments to notify Native Nations of 
        ``missing and exchanged'' collections from the Smithsonian 
        Institution and federally funded institutions;

        3. Establish a 30-day hold in U.S. Customs for Native American 
        Ancestors and cultural items, so that Customs may notify tribes 
        and have meaningful consultations over the held item to 
        determine if it has been taken from a burial or sacred place or 
        from the tribe;

        4. Ensure that Native Nations can represent themselves at the 
        U.N. and other international fora and are involved in any 
        planning processes to develop mechanisms for international 
        repatriation, including the development of databases, so that 
        proper cultural protocols are put in place. Many tribes do not 
        want photographs of their Ancestors and cultural items 
        displayed, as they are sacred or integral parts to the exercise 
        of their religious and cultural beliefs;

        5. Mandate that the State Department create an office and 
        assign staff to assist over 567 tribes with their International 
        Repatriation efforts; and

        6. Investigate entering into bilateral and multilateral 
        agreements with other countries concerning the repatriation of 
        Native American Ancestors and cultural items.

    The Association on American Indian Affairs (AAIA) supports 
bipartisan efforts to stop the trafficking of Indigenous Ancestors and 
cultural items, such as H. Con. Res. 122 PROTECT Patrimony Resolution, 
which was passed by the House and Senate only a few weeks ago, and has 
been sent back to the House. However, we also advocate for the 
strengthening of current federal laws and increasing penalties in the 
NAGPRA and ARPA.
    In addition, we support efforts by Congress and the General 
Accounting Office to investigate the theft, illegal possession, sale, 
transfer, and export of tribal cultural items, and urge them to look 
into the issues tribes are facing in illicit trafficking and 
international repatriation that we have explained here today and in our 
written testimony further.
    We thank you for your time and attention to these important 
matters, and look forward to positive outcomes from Congress to assist 
Native Nations in legislation and assistance to repatriate their Native 
American ancestors and cultural items back home to their communities. 
Thank you.

    Senator Udall. Thank you, Ms. Keeler. And I thank all the 
witnesses today for their testimony. Ms. Keeler, we're now 
going into a questioning phase.
    Ms. Keeler, I'd like to talk to you a little bit about the 
United Nations. You have a lot of experience there in terms of 
their interactions, and it's my understanding that the United 
Nations meets to discuss international repatriation, but 
oftentimes these meetings take place in New York, Geneva, or 
someplace else in the world without very much notice.
    It's clearly impossible for tribes in New Mexico or others 
across the United States to be in attendance or to keep tabs on 
the discussion.
    In your opinion, what steps might the United States take to 
support tribes in representing themselves in international 
repatriation issues?
    Ms. Keeler. I think it's very important, Senators, to 
ensure that Native Nations have that opportunity as indigenous 
governments to represent themselves at the UN. Particularly, in 
the UN permanent forum on indigenous issues, UNMREP, UNESCO, 
LIPO, and other representative branches of the UN.
    Yes, there has been a problem with adequate notice provided 
to indigenous peoples for meetings that occur on important 
issues, such as international repatriation.
    And we encourage the United States to get behind tribes and 
ensure that they can represent themselves at those meetings. 
And also so that there is adequate notice so that they can 
prepare and go to these meetings.
    I'd also suggest that there be some kind of fund set up to 
help tribes to get to the UN to represent themselves.
    Senator Udall. Thank you very much.
    And, Dr. Schaaf, we really appreciate your testimony here 
today as an art collector and historian. You've talked about 
the carrot and the stick, and you did it very graphically here. 
And I agree with you that art dealers and collectors should be 
partners on this issue.
    In regards to the carrot-and-stick approach, you've also 
indicated in your testimony there's a black market out there. 
So, in addition to carrot-and-stick, what would you suggest be 
utilized in order to tackle the black market situation that's 
going on?
    Dr. Schaaf. I think that the carrot and the stick approach 
is the last resort. I think the carrot and the carrot approach 
is the first approach. In this approach, the person who owns or 
is the caretaker of a particular object, can come out of it 
holding their head up high in dignity. It's very important to 
them.
    Secondly, it's a carrot--in terms of the American tribes or 
spiritual society, because they get their things back.
    It's also important that the auction house gets a carrot, 
that they don't come out looking like the bad buy. It's like 
their villains, like they're engaged in some kind of black 
market. And there's a way that that can happen.
    Also, each Federal agency that gets involved, they also 
need carrots. All of them need carrots, so if everybody can 
win, it's win, win, win.
    Now, in regards to a black market, I've been collecting 
Native American art since I was 5. I'm 63. That's over half a 
century. I can tell you for a fact that I haven't really seen 
too much of the existence of a black market.
    I made a reference to a black market because if you 
criminalize some aspects of Native American art collecting, it 
will create a black market instantly.
    Now, when we were negotiating regarding the return of the 
Shield, one of things that the Acoma elders was very adamant 
about was they didn't want to foster a black market regarding 
this auction. And I told them that an auction really isn't a 
black market. It's the opposite. There's a public spotlight. 
It's online.
    I have a computer system which sends me a notice every time 
a particular key word appears which relates to important Native 
American cultural items. I get an e-mail.
    Other times, I get a phone call from one of the spiritual 
elders or members of societies, or their children from these 
Pueblos or Native Nations. They call me up and they say, ``Dr. 
Schaaf, this is coming online. This is going to get sold. Is 
there anything you can do?''
    In the case of the Shield, I thought Walter Amberg 
Foundation was going to come in and save the day, okay? Like 
they did with the Hopis. But the Walter--because they 
appropriated a million dollars and they only used 500,000. But 
this didn't happen. Now we had to do a different approach. Now, 
this black market (made unreportable utterance), okay, well, I 
can tell you that they're really--in all of the early years of 
collecting, there wasn't per se a black market. ARPA was 
created to STOP people from going into Federal lands, 
especially Mesa Verde and Chaco Canyon, and digging stuff up 
out of the ground.
    When I was there in 1990, as a quasi-historian for the 
Senate's Committee for Indian Affairs with Senator Inouye, when 
ARPA--when NAGPRA was created, the Native American Grave 
Protection Act, the underscore was ``grave.'' What were we 
trying to do? We were trying to get the Smithsonian to return 
the tens of thousands of skeletons that they had in their 
closets, and they wouldn't give them back.
    And there were--when in--in my university, the University 
of California, the joke was that there were more dead Indians 
in the basement and skeletons than there were live Indians that 
they recruited.
    And when we would ask them, ``Could you return these 
objects, because when it says, 'rest in peace,' we consider 
that a human right.''
    And they would say--these archeologists would say ``No, we 
own this. We own these things. You don't own it. And we're not 
giving them back.'' So, in order to get them to give it back, 
we approached it through NAGPRA, the Native American Grave 
Protection Act.
    I remember the day when those guys came in and added those 
three words, ``Objects that are sacred, ceremonial, and objects 
of cultural patrimony,'' and I said, ``Oh, you guys are opening 
a can of worms.''
    And they said, ``What do you mean?'' I said, ``Sacred. 
What's sacred and what's not.'' And, you know, ``Can you prove 
one way or another that an object is sacred, and, therefore, 
illegal? And then you're going to go to prison for all of these 
years?''
    So they really fought against me, to be honest. And finally 
I said, ``How about--I worked for the Hopis for all these years 
as a historian, how about if I call them and ask them, what is 
sacred and what is not? You define it. Will you accept their 
opinion?''
    They said, ``Well, that's pretty good. Okay. You go for 
it.''
    I called up the Hopi elders, one of the kiva leaders that I 
had worked for for all of these years, and I asked him, 
``Tonight in the kiva, would you ask the guys what's sacred and 
what's not?''
    The next day I got a phone call. ``Man, we stayed up until 
late in the night talking about it, but we got the answer for 
you. I'm going to tell you right now. We decided that the whole 
world is sacred, every blade of glass, every leaf, every river, 
every mountain, every object in the whole world is sacred.'' 
Yet, at the same time, nothing is so sacred that the clowns 
can't make fun of it.
    Now, we're faced with a law, in which everything is legal 
and yet everything is illegal. Get my point?
    Now, what about ceremonial? That used to be there, and then 
that got pushed aside, because what about moccasins and drums? 
Are you going to put all the moccasin makers out of business, 
all the drum makers out of business?
    What about shields? Shields really weren't on the radar 
screen until a year ago. Before that, shields weren't really 
addressed. And there are shields--all you have to do is go to 
Gathering of Nations, and there's hundreds of Native Americans 
dancing with shields. Are those all illegal?
    And let me tell you, when those guys that were here before, 
that ICE guy, man, let me tell you, when you give that guy that 
club, okay, that's what happened two years ago when they gave 
the club to the Serbias Action Project, okay? Did you ever hear 
of Serbias Action? Well, you should know about it, because two 
years ago, they gave that to the Bureau of Land Management. 
Those guys got a SWAT team. They brought a hundred guys into 
these area collectors, and what's the result? Three dead on the 
ground. This is serious stuff.
    Senator Udall. Thank you. Thank you, Dr. Schaaf, really 
appreciate it.
    President Begaye, it's my understanding you've floated an 
idea where the Department of Homeland Security should hold an 
object that they believe is important to cultural patrimony, 
and adequately consult with the tribes. Can you describe how 
this would benefit the Navajo Nation and the rest of Indian 
Country?
    Mr. Begaye. It would greatly benefit us, because before 
passing these on into international market, we need to be 
consulted on the sacredness of these objects. We understand the 
difference between art and those things that can be used for 
deport. But sacred items are different. In this case, we're 
talking about what the--with art dealing with the Paris auction 
house, the Yei bi Chei mask. We sent a medicine man out there 
to authenticate. The seven, five of them were masks that were 
used in ceremonies. The most sacred of the Navajo ceremony, the 
Yei bi Chei mask.
    And so, one--the owner would not reveal himself. And if 
they want to do it peacefully, then come out. Come out in the 
open and say, I am from Japan, I'm from China, I'm from France, 
I'm from New York, and here's an object that I want to put on 
the auction block. Native American, can you come and see if 
this is a sacred object? And we would go there and talk to that 
individual and reason with him.
    But, no, in our case, from 2015, when we retrieved the 
seven masks, from that point, to 2016 spring, it increased--the 
value that we were being asked for increased 2,000 percent.
    And, so, some of these that are out there, are 
unreasonable. They are just out for profit. And how do we go 
after those people that knowing that we paid ``X'' amount of 
dollars in 2015, now they increase it by 2,000 percent? And, 
so, there are those that are like that. And I don't know if 
that will be labeled black market. But if the Homeland Security 
can make sure that these objects, sacred objects, Native 
American objects, before they are taken outside of the country, 
would be looked at, we would be consulted. Let us have a word. 
Let us have a say over these objects, and let us determine 
through our medicine people whether these are sacred or not.
    But when it leaves the country, like we did with the 
country of France, we asked them for help, the government, we 
asked them to step in, because we knew that these were sacred 
objects that was about to go on the auction block. But they 
said, because your laws, United States government laws, do not 
address these issues, then we cannot do that. We cannot come 
alongside Navajo Nation and help you repatriate these items.
    And, so, again we asked different lawmakers, different 
governments, but nobody could come alongside us, because we 
didn't have the laws in place.
    And that's why we are supporting STOP Act, the Protect Act, 
we appreciate that effort, because there are people out there 
that will refuse to deal with us as Indian Nation in returning 
these sacred objects.
    And, so, to me, the word I use was bribery. You guys are 
trying to bribe us. We know, you know, and the sellers know how 
much we paid in 2015, and now you're increasing it by 2,000 
percent. And that is pure criminal act. It's a bribe. And we 
need to deal with some of these people that way.
    And, so, if a person was reasonable he would say, you know, 
we know how much you guys paid a year ago. And we're willing to 
give these objects back to you at the same price or just donate 
back to the Navajo Nation.
    They would have said that, but, no, they increased it by 
2,000 percent. And, to me, that's a bribe.
    And, so, again, we appreciate the efforts of the United 
States Congress to put laws in place that will say to people 
out there, ``Don't take Native American objects out of the 
United States before you consult with the Native American 
people, like Navajo Nation, especially if they're ceremonial 
key--they're ceremonial objects.
    And so we can define that. We can say, yes, this is art. 
Yes, it was used at Gathering of the Nations. Yes, it was used 
at the song and dance.
    But this particular one, is used for ceremonial purposes, 
for healing, or to restore harmony. And those are the ones that 
we want to remain--that we want protected. And that's all we're 
asking for. Thank you.
    Senator Udall. Thank you very much, President Begaye.
    And so I'm going to now--because we are running late here, 
I want to make sure we try to keep our schedule that we 
announced, we'll go to Senator Heinrich for his questions at 
this point.
    Senator Heinrich. Governor Riley, do members of your pueblo 
rely on the sale of art items for their income?
    Mr. Riley. Thank you, Senator, for the question. Yes, there 
are a number of individuals from the Pueblo, who, as a 
profession, are artists. And, so, they do earn a livelihood by 
the products that they produce for commerce.
    Senator Heinrich. Is there any prohibition in Federal law 
against selling or purchasing those items?
    Mr. Riley. None whatsoever.
    Senator Heinrich. Would you consider the Acoma Shield to be 
an art, Native American art item?
    Mr. Riley. I would definitely not. There are objects that 
are created for a specific purpose within pueblo society. In 
particular Acoma, the Shield had its place within our 
ceremonial calendar. And as such, it is not a piece of art.
    There are numerous examples that other tribes have 
presented, including when Congressman Pearce and I talked at 
the Museum of the Native American.
    There's a California tribe that said it very well. These 
items are given life, and as such we treat them as a living 
being. And there are differences in, I guess, perspectives.
    Not to really point fingers at Professor Schaaf, but there 
are differences. He asks us, as Native Americans, to think like 
a collector. I, in turn, ask him to think as a Native American. 
These items that he bestowed upon us, I'm grateful for these 
items. He called them sacred. I don't know what's contained in 
these boxes. If they are, in fact, sacred, they should not be 
re-presented to the tribe in such a disrespectful manner. I 
think the Pueblo leadership would all agree with me. If they 
are not then, he, himself, with all of his degrees, have 
mislabeled them.
    And that's one position that Native Americans have strongly 
stated at almost every hearing that I've been at. Only we can 
determine what is sacred. The professor is not a practitioner 
of Native culture. He studies Native culture. I, myself, am a 
practitioner. There's a huge difference between being a 
practitioner and being a student.
    So, I guess that's a long-winded answer, but I really 
wanted to drive home that point. I don't know what's contained 
in these boxes. I cannot say for Navajo Nation, for the Pueblo 
of Isleta, whether or not these items are sacred. It's up to 
each individual tribe to determine that fact.
    Senator Heinrich. Mr. Torres.
    Dr. Schaaf. If I could just--30 seconds.
    Senator Heinrich. I'm going to continue with my line of 
questioning, and we'll get to you in a moment.
    Governor Torres, the item of pottery that you mentioned 
that you purchased back for $1,200, was that an item of art, or 
was that an item of cultural patrimony? Would it be the kind of 
item that your members would simply create and sell on the 
market to--for artist income?
    Mr. Torres. Thank you for the question, Senator.
    This ceremonial bowl that was located and purchased, and 
brought back to us, has been used for centuries, and I could 
see that--I should have brought it. You can see the wear marks 
on it. And the traditional people and leaders who saw it, they 
recognized it right away.
    And, you know, like I said earlier, if we would have--if 
Isleta would have went over there and demanded it or went about 
it in a different way, a red flag would have went up, and we 
would have never seen it again, because there's money involved. 
Everything is about money. Everything, you know. If there's 
money attached to something, if somebody has money invested in 
it, I guess, is what I'm trying to say, even though it was 
stolen from a house, you know, it was sold, somebody paid for 
it, and then now it's for sale.
    So, when things--objects, sacred objects like this are 
found in certain places, you got to figure out a way to get 
them without putting up that red flag. Because if you don't, 
it's going to disappear, and you'll never see it again. And you 
had that opportunity to get it, well, you can't put a price to 
these sacred objects. You don't do that. We don't do that. We 
don't put prices to it.
    I don't know what's in this box. And I'm also a traditional 
leader at Isleta Pueblo, but if I saw what's in this box, I 
probably still won't know what it is. It has to go to the right 
people. When I take this to my people, I will get the 
traditional leaders. I will have a gathering and we'll see 
what's in there, and see what it is.
    Like governor Riley says, you don't know if it's sacred or 
not. I don't. I'm not going to know. If some of the other 
traditional leaders know, then they will tell me. But every 
society has their own things that they use in ceremonials.
    It's kind of tough to answer a lot of questions. All 
pueblos are different. Ceremonials are different. Navajo Nation 
have different ceremonials. So, you know, there's so many, it's 
tough to address. A lot of things we can't disclose also.
    Senator Heinrich. I understand. Dr. Schaaf, who owns the 
Acoma Shield?
    Dr. Schaaf. I don't know. It appears the circumstances, 
there was----
    Senator Heinrich. If you don't have the circumstances, I 
don't--Governor Riley, who owns the Acoma Shield?
    Dr. Schaaf. Oh, the Acoma Pueblo owns the Shield. Who has 
possession of it at this time is a different thing.
    Senator Heinrich. And I thank you, Senator Heinrich, for 
that question. As I said before, I think it's time for the 
antique dealers and the collectors to think that way. That 
Shield belongs to the Pueblo of Acoma. Inherently, it belongs 
to us.
    Senator Udall. Having no additional questions, let me just 
thank each member of this panel. We really appreciate your time 
and your effort, and your travels here to participate in this. 
Senators, just so Senator Heinrich and all of our staff know, 
we're allowed to submit follow-up written questions for the 
record. We hope if you get any of those, that you will respond 
quickly, so we will have the information and proceed on other 
fronts.
    The hearing record will be open for two weeks. And I want 
to thank the witnesses for their time and testimony.
    As I said earlier, the staff members, there's an e-mail 
that the Committee can be contacted through, and at this point, 
the hearing's going to be adjourned, but I also want to have an 
announcement after the hearing's adjourned, so I want your 
attention here.
    So, the hearing is now adjourned, and I will call forward 
Governor Yepa to give a closing prayer.
    [Whereupon, at 12:30 p.m. the hearing was concluded.)

                            A P P E N D I X

   Prepared Statement of John Molloy, President, Antique Tribal Art 
                        Dealers Association, \1\
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    \1\ The Antique Tribal Art Dealers Association, ATADA, is a 
professional organization established in 1988 in order to set ethical 
and professional standards for the art trade and to provide education 
for the public. ATADA membership has grown to include hundreds of 
antique and contemporary Native American and ethnographic art dealers 
and collectors, art appraisers, and a strong representation of museums 
and public charities across the U.S., dedicated to the promotion, study 
and exhibition of Native American history and culture. www.atada.org. 
email [email protected], PO Box 45628, Rio Rancho, NM 87174.
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    The Safeguard Tribal Objects of Patrimony Act of 2016 is unlikely 
to achieve its primary goal, the return of important cultural objects 
to Native American tribes and Native Hawaiian organizations. If 
enacted, the STOP Act would instead create dangerous legal 
uncertainties for private owners of a wide range of American Indian art 
and artifacts, violate the 5th Amendment due process clause of the U.S. 
Constitution, generate consumer confusion that would damage legitimate 
art dealers and tribal artisans, and create a bureaucratic nightmare 
for the tribes.
Summary
    It is the position of the tribes that they, and no one else, should 
determine which cultural objects are inalienable from their 
communities. This is a legitimate position, and intrinsic to tribal 
sovereignty. At the same time, many tribes believe strongly that 
photographs, identifying characteristics, and descriptions of 
ceremonial objects cannot be disclosed to persons who do not have the 
right and authority to know about such sacred matters, not even to all 
tribal members. Therefore, tribes refuse to make information public 
that would enable an outsider or unauthorized person to know whether he 
or she possesses a ceremonial object considered inalienable to the 
tribe.
    It is also the tribes' position that although non-tribal members 
may have some knowledge of Indian culture, that knowledge is not 
complete. So, while certain examples of cultural objects such as masks 
may be generally acknowledged as ceremonial items, others are not. Some 
objects deemed ceremonial to a tribe are very similar to non-ceremonial 
objects, and may include commonly traded objects such as ceramics. 
Knowledge regarding these items is also considered inappropriate to 
make public.
    Tribal secrecy may be well-justified as necessary for the health 
and well-being of the tribe. However, the lack of specific, public 
information about what makes a cultural object inalienable--when it may 
have entered the stream of commerce decades or even a hundred years 
before--is a legal barrier to the exercise of due process and to the 
return of many sacred objects.
    This information gap would certainly be an issue in the enforcement 
of the STOP Act, if it is enacted. The U.S. legal system is premised on 
the idea that a citizen must have fair notice of our laws. As our 
Supreme Court has stated, ``[A] statute which either forbids or 
requires the doing of an act in terms so vague that men of common 
intelligence must necessarily guess at its meaning and differ as to its 
application, violates the first essential of due process of law.'' \2\
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    \2\ Connally v. General Constr. Co., 269 U. S. 385, 391, 46 S. Ct. 
126, 70 L. Ed. 322 (1926).
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    The items that tribes most urgently seek to repatriate from non-
tribal possessors are ceremonial objects and objects of cultural 
patrimony that tribes claim as inalienable tribal property. \3\ These 
objects are claimed regardless of the geographic and time limitations 
and grandfathering-in of older, non-tribal private collections under 
the 1979 Archeological Resources Protection Act (ARPA), \4\ and the 
1990 Native American Graves Protection and Repatriation Act (NAGPRA). 
\5\ Sacred items are also precisely the objects that many tribes say it 
is impossible to identify or discuss according to established tribal 
customary law. Therefore, notice of what items are claimed by the 
tribes cannot be given to non-tribal owners. The lack of fair warning 
means that a criminal prosecution or forfeiture of property would be 
based upon information that cannot be disclosed, which would be a clear 
violation of due process of law. The STOP Act therefore cannot legally 
achieve its primary goal of returning to the tribes the items they most 
seek.
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    \3\ Native American Graves Protection and Repatriation Act, 25 
U.S.C.   3001-3013, Nov. 16, 1990,  3001(3)(c-d).
    \4\ Archaeological Resources Protection Act of 1979, 16 U.S.C.   
470aa-mm; Congressional findings and declaration of purpose,  
470aa(b), ``(b) The purpose of this chapter 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, and to foster increased cooperation and exchange of information 
between governmental authorities, the professional archaeological 
community, and private individuals having collections of archaeological 
resources and data which were obtained before October 31, 1979,'' and 
16 U.S.C.  470ee, Prohibited acts and criminal penalties. Prospective 
application. ``(f) Nothing in subsection (b)(1) of this section shall 
be deemed applicable to any person with respect to an archaeological 
resource which was in the lawful possession of such person prior to the 
date of the enactment of this Act.''
    \5\ Native American Graves Protection and Repatriation Act, 25 
U.S.C.   3001-3013 and 18 U.S.C.  1170, Nov. 16, 1990.
---------------------------------------------------------------------------
    While a failure to provide for due process, which is discussed in 
greater detail below, is a fatal flaw, the STOP Act has other serious 
weaknesses. The STOP Act is unnecessary because export for sale of 
unlawfully acquired artifacts is already illegal; ARPA specifically 
penalizes trafficking in unlawfully acquired objects in interstate and 
foreign commerce \6\ and NAGPRA has criminal penalties for unlawful 
transportation and sale \7\ and enables civil claims for sacred and 
communally owned artifacts.
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    \6\ 16 U.S.C.  470ee, Prohibited acts and criminal penalties. 
Trafficking in interstate or foreign commerce in archaeological 
resources the excavation, removal, sale, purchase, exchange, 
transportation or receipt of which was wrongful under State or local 
law, ``(c) 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.''
    \7\ 18 U.S.C.  1170.
---------------------------------------------------------------------------
    The STOP Act creates no framework for administration or enforcement 
of tribal claims. It does not provide for management of cultural 
objects, or have a permitting system for objects deemed lawful to 
export, or provide funding. It does not provide a standard for 
identification of items of cultural patrimony--for example, a list or 
database of ceremonial items. It does not set forth standards of 
evidence for tribal claimants or means of appeal for the owners of 
disputed objects.
    The STOP Act is grossly overbroad as a result of adopting multiple 
definitions of a ``cultural object'' from other laws that serve 
completely different purposes. As discussed below in greater detail, 
the STOP Act defines a ``cultural object'' by combining definitions 
from three existing U.S. statutes: ARPA, NAGPRA, and18 USC  1866(b). 
The definition of a ``cultural object'' under these statues include a 
wide variety of non-ceremonial objects that tribes have not expressed 
any interest in repatriating.
    For example, under NAGPRA, human remains and sacred items are 
cultural items that the tribes feel are essential for repatriation. 
However, some museums routinely deem very common objects that are 
widely traded without objection from tribes to be ``unassociated 
funerary objects'' under NAGPRA. \8\ Under ARPA, virtually everything 
made by humans over 100 years old is covered by the term 
``archaeological resource'', \9\ but only the age and original location 
of an object makes it lawful or unlawful to own. Sacred associations 
are irrelevant. Claims under ARPA would be especially difficult to 
succeed in, since the original location of the majority of cultural 
objects in circulation is unknown. These multiple definitions expand 
the STOP Act's reach far beyond the ceremonial objects whose return is 
important to the tribes.
---------------------------------------------------------------------------
    \8\ See, for example, the 2007 NAGPRA repatriation of 10,857 
cultural items in the control of the Burke Museum: Federal Register: 
May 24, 2007, Volume 72, Number 100, Notices, Page 29174-29177, From 
the Federal Register Online via GPO Access, wais.access.gpo.gov, 
DOCID:fr24my07-88.
    \9\ 16 U.S.C. 470bb(1).
---------------------------------------------------------------------------
    A grant of short term immunity to anyone who ``repatriates'' an 
unlawfully obtained cultural object to the ``appropriate'' Indian tribe 
or Native Hawaiian organization, is one of the most insidious elements 
of the STOP Act. Since the original provenance of most cultural items 
is unknown, the non-tribal owner is stuck between a rock and a hard 
place. He can ``repatriate'' what might be a lawful object, losing his 
investment and taking the chance that he has given it to the right 
tribe, or he can hold on to it, possibly risking a later arrest or 
claim from a tribe. The unavoidable uncertainty about the status of 
artifacts, not knowledge of unlawful origins, is what most worries 
collectors and the art trade.
    The STOP Act not only threatens art dealers and collectors with 
prosecution without having had notice of wrongdoing--the legal 
uncertainty surrounding Native American cultural objects is likely to 
cause serious economic damage. It will taint both the antique and 
contemporary Indian art markets, which are major contributors to local 
economies and irreplaceable sources of income to tribal artisans, 
particularly in the American West. The total Indian art trade is 
estimated to be valued between $400-800 million a year. The annual 
Santa Fe Indian Art Market brings over 170,000 tourists to New Mexico a 
year. The city of Santa Fe estimates that the market brings in 120 
million each year in hotel and restaurant revenue alone. Native 
artisans, many of whom rely on the Indian Art Market for as much as 
half their yearly income, are also concerned that such a vague law will 
``taint'' the entire American Indian art market in the eyes of the 
public.
Background on the distribution and circulation of Native American 
        artifacts
    There are millions of Native American ``cultural objects'' in 
private ownership today; many have no ownership history, or 
``provenance.'' Many objects have circulated for decades in the 
marketplace, or even for the last 140 years. For most of the 140 years 
in which there has been an active trade in Indian artifacts, provenance 
and ownership history had no legal or practical effect on the market. 
In the last 25 years, awareness of tribal concerns and the harmful 
destruction of archaeological sites has changed everything. Today, a 
``good'' provenance can make the difference between a valuable object 
and one of little worth, or that cannot be sold at all.
    The best records of early collections of Native American cultural 
objects are from museum sources. Harvard's Peabody Museum expeditions 
included the Hemenway Southwestern Archaeological Expedition (1886- 
1894), which brought thousands of Zuni and Hopi artifacts from Arizona 
and New Mexico. In 1892, the leader of the Hemenway Expedition paid the 
trader Thomas Keam $10,000 for a huge collection that included over 
3000 ceramics. \10\ The materials in the collection were either bought 
by Keam and his assistant Alexander Stephen from Hopi or found in 
explorations of abandoned Hopi towns. Smaller, but still very 
substantial collections were also made by Keam for the Berlin 
Ethnological Museum, The Field Museum in Chicago, and the National 
Museum of Finland. Keam also sold widely from his trading post to 
collectors and tourists from across the United States. \11\ The 
materials collected by Keam and sold to the Peabody Museum were sourced 
from ``throughout Arizona, the San Juan region of the southern confines 
of Colorado and Utah. They were exhumed from burial places, sacrificial 
caverns, ruins and from sand dunes in the localities of ancient 
gardens.'' \12\ During the same years and throughout the early 20th 
century, private collectors purchased from the same sources that 
supplied museum collectors.
---------------------------------------------------------------------------
    \10\ Edwin Wade et al., America's Great Lost Expedition: The Thomas 
Keam Collection of Hopi Pottery from the Second Hemenway Expedition, 
1890-1894, p 9, Harvard, Cambridge (1980) (See also pages 18, 25, 26, 
39) and Edwin Wade et al., Historic Hopi Ceramics, 84 Harvard, 
Cambridge (1981).
    \11\ Edwin Wade et al., America's Great Lost Expedition: The Thomas 
Keam Collection of Hopi Pottery from the Second Hemenway Expedition, 
1890-1894, p 2, Harvard, Cambridge (1980).
    \12\ Id. at 15.
---------------------------------------------------------------------------
    Thus, tens of thousands of cultural objects entered the stream of 
commerce decades before the first U.S. cultural property legislation 
was enacted, the American Antiquities Act of 1906 (Antiquities Act). 
\13\ Experts such as the Reverend Dr. Henry Baum testified regarding 
the enormous numbers of artifacts that had entered the market at 
Congressional hearings on the Antiquities Act. \14\ Department 
Archeologist and Superintendent of Mesa Verde National Park Jesse L. 
Nusbaum, writing in 1929, called the 1880s and 1890s ``the heyday of 
the commercial pothunter.'' \15\
---------------------------------------------------------------------------
    \13\ American Antiquities Act of 1906, 16 U.S.C. $$431-433, 34 
Stat. L. 225. The Antiquities Act of 1906 was held to be 
unconstitutionally vague and legally unenforceable in the Ninth 
Circuit, which includes Arizona, where Navajo, Hopi and Zuni lands are 
located. U.S. v. Diaz, 499 F.2d 113, 114 (9th Cir. 1974). The Diaz 
decision, coupled with a rise in illicit excavations on public and 
Indian lands in the 1970s, prompted new legislation to protect 
archaeological resources, ARPA. H.R. REP. 96-311, *8, 1979 U.S.C.C.A.N. 
1709, **1710.
    \14\ Hearing of the Subcommittee of the Committee on Public Lands 
of the United States Senate, 58th Cong., 2d Sess., 14 (1904), testimony 
of Reverend Dr. Henry Baum.
    \15\ Annual Report of Jesse L. Nusbaum, Department Archeologist and 
Superintendent of Mesa Verde National Park, to the Secretary of the 
Interior for Fiscal Year Ended June 30,1929 6-7.
---------------------------------------------------------------------------
    Artifacts without provenience were dug up and sold to good faith 
purchasers long after enactment of the Antiquities Act in 1906. 
Superintendent Nusbaum reported when seeking funding for putting signs 
prohibiting looting on ancient ruins, a task barely begun in 1929:

         ``I may add, the majority of tourists are potential 
        pothunters. The few scattered settlers of that period are 
        replaced by the thousands of motorists and visitors today, many 
        of whom are potential pothunters. . . Several years ago. . 
        .warning signs were posted on and in the vicinity of some of 
        the more important ruins. . . To the average visitor, only 
        ruins so posted are the property of the United States and 
        protected by the act of June 8, 1906. . .'' \16\
---------------------------------------------------------------------------
    \16\ Id. at V, 6-7.

    Regrettably, the U.S. government is directly responsible for the 
loss of numerous sacred and ceremonial objects to the tribes. In 1883, 
Secretary of the Interior Henry Teller issued rules establishing Courts 
of Indian Offenses that prohibited Native American ceremonial activity 
under pain of imprisonment. Teller ordered Indian agents to compel 
medicine men to discontinue their practices and prohibited anyone less 
than 50 years old from being present at feasts and dances. Missionaries 
also encouraged the destruction of paraphernalia used in tribal 
religious celebrations. At various times in the early 20th C, Native 
Christian groups encouraged people to destroy relics. It was only in 
1978 that the American Indian Religious Freedom Act gave native 
religions the same rights given to others in the U.S.
    Today, the sources of cultural objects in the market and in private 
collections vary greatly. While many objects were taken from tribes by 
the U.S. government, or sold after individuals adopted Christianity, 
others were sold in the 1960s-1980s, when Indian ceremonial objects 
were avidly collected by non- Indians who admired Native American 
social and environmental perspectives, or who responded to the 
aesthetic and creative qualities of Indian objects. Indian artifacts 
were sold (with or without permission of the community) because of the 
increasing economic values of tribal artifacts and the comparative 
poverty of many tribal communities.
    In the last twenty or thirty years, attitudes have changed very 
much among art collectors, museums, and the general public. There is 
increased respect for both the sovereign rights of tribal communities 
and the importance of retaining sacred objects for the health of these 
communities. Most recently, there is a commitment on the part of art 
dealers and organizations such as ATADA, the Antique Tribal Art Dealers 
Association, to work directly with tribal representatives to find 
solutions that truly serve Native American interests.
Congress Intended Private Collections to Remain a Resource for 
        Preservation and Study of Native American Culture
    Art traders and the collecting community have been accused in the 
media of exploiting Indian culture, especially in light of recent Paris 
auction sales that were deeply offensive to tribal communities. But it 
should be remembered that the vast majority of the trade in Indian 
artifacts is completely legal, and that Congress deliberately excluded 
pre-existing privately held collections of artifacts from ARPA's 
prohibition on trafficking, in part because they formed a valuable 
resource for academic study. ARPA's Findings and Purpose states:

         ''The purpose of this chapter 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, and to foster increased cooperation and 
        exchange of information between governmental authorities, the 
        professional archaeological community, and private individuals 
        having collections of archaeological resources and data which 
        were obtained before October 31, 1979.'' \17\
---------------------------------------------------------------------------
    \17\ 16 U.S.C.  470aa(b). ARPA's legislative history reinforces 
this policy:

         ``The Committee is concerned that greater efforts must be 
        undertaken by the Secretary and professional archaeologists to 
        involve to the fullest extent possible non-professional 
        individuals with existing collections or with an interest in 
        archaeology. The potential benefit of this increased 
        cooperation is enormous; there is a wealth of archaeological 
        information in the hands of private individuals that could 
        greatly expand the archaeological data base on this country.'' 
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        \18\

    \18\ H.R. REP. 96-311, *12,1979 US.CC.A.N. 1709, **1714
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    Only objects excavated subsequent to 1979 or unlawfully possessed 
prior to 1979 are impacted by ARPA. Congress expressly intended private 
collections to serve as open resources:

         ``Nothing in subsection (b)(1) of this section shall be deemed 
        applicable to any person with respect to an archaeological 
        resource which was in the lawful possession of such person 
        prior to October 31,1979.'' \19\
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    \19\ 16 U.S.C 470ee(f).
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Definitions of Cultural Objects Under the STOP Act Are Too Broad and Do 
        Not Prioritize the Cultural Objects Most Desired by the Tribes
    The STOP Act penalizes export of any Native American cultural 
object obtained in violation of NAGPRA, 18 USC 1170, ARPA, or 18 USC 
1866(b).
    The STOP Act defines a cultural object as fitting one of three 
categories:

        (1) ``cultural items as described in NAGPRA, 25 USC 3001'' \20\
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    \20\ ``cultural items'' means human remains and--(A) ``associated 
funerary objects'' which shall mean objects that, as a part of the 
death rite or ceremony of a culture, are reasonably believed to have 
been placed with individual human remains either at the time of death 
or later, and both the human remains and associated funerary objects 
are presently in the possession or control of a Federal agency or 
museum, except that other items exclusively made for burial purposes or 
to contain human remains shall be considered as associated funerary 
objects. (B) ``unassociated funerary objects'' which shall mean objects 
that, as a part of the death rite or ceremony of a culture, are 
reasonably believed to have been placed with individual human remains 
either at the time of death or later, where the remains are not in the 
possession or control of the Federal agency or museum and the objects 
can be identified by a preponderance of the evidence as related to 
specific individuals or families or to known human remains or, by a 
preponderance of the evidence, as having been removed from a specific 
burial site of an individual culturally affiliated with a particular 
Indian tribe, (C) ``sacred objects'' which shall mean specific 
ceremonial objects which are needed by traditional Native American 
religious leaders for the practice of traditional Native American 
religions by their present day adherents, and (D) ``cultural 
patrimony'' which shall mean an object having ongoing historical, 
traditional, or cultural importance central to the Native American 
group or culture itself, rather than property owned by an individual 
Native American, and which, therefore, cannot be alienated, 
appropriated, or conveyed by any individual regardless of whether or 
not the individual is a member of the Indian tribe or Native Hawaiian 
organization and such object shall have been considered inalienable by 
such Native American group at the time the object was separated from 
such group. 25 USC 3001(3)((3).
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        (2) An ``archeological resource as defined under section 3 of 
        ARPA, 470bb(1)'' \21\
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    \21\ ``(1) The term ``archaeological resource'' means any material 
remains of past human life or activities which are of archaeological 
interest, as determined under uniform regulations promulgated pursuant 
to this chapter. Such regulations containing such determination shall 
include, but not be limited to: pottery, basketry, bottles, weapons, 
weapon projectiles, tools, structures or portions of structures, pit 
houses, rock paintings, rock carvings, intaglios, graves, human 
skeletal materials, or any portion or piece of any of the foregoing 
items. Nonfossilized and fossilized paleontological specimens, or any 
portion or piece thereof, shall not be considered archaeological 
resources, under the regulations under this paragraph, unless found in 
archaeological context. No item shall be treated as an archaeological 
resource under regulations under this paragraph unless such item is at 
least 100 years of age.'' 16 U.S.C.   470aa-mm, section 470bb(1).
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        (3) And an ``object of antiquity protected under section 
        1866(b).'' \22\

    \22\ ``(b). . .any historic or prehistoric ruin or monument or any 
other object of antiquity that is situated on land owned or controlled 
by the Federal Government without the permission of the head of the 
Federal agency having jurisdiction over the land on which the object is 
situated. . .'' 18 U.S.C. 1866(b).
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    The combined definitions under these statutes encompass virtually 
every object made by human hands. Since the vast majority of Native 
American cultural objects have little or no ownership history, there is 
enormous potential for confusion about what is lawful and what is 
unlawful to own, trade, or export.
    Some supporters of the STOP Act have said that only ``serious'' 
violations of the law would actually be prosecuted and this broader 
category of objects would not be affected. However, as Scalia and 
Garner have explained, ``Ordinarily, judges apply text-specific 
definitions with rigor.'' \23\ It is not a valid defense of flawed 
legislation to say, as some supporters Act have, that a law will only 
be selectively enforced.
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    \23\ Scalia and Garner, Reading Law: The Interpretation of Legal 
Texts  36 at 225-233, (Thompson/West 2012).
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    There is no denying the fact that the STOP Act requires 
repatriation to federally recognized tribes of a vast number of 
cultural objects that the tribes don't appear to want back in the first 
place. Tribal members have stated in public fora that their tribes want 
a much smaller and more limited number of items back. \24\ A number of 
tribal representatives have also stated that only the tribes can 
determine whether an object is ceremonial. \25\ If more limited 
repatriation of essential objects, based upon tribal criteria alone, is 
what the tribes want, then the only proper legislation is legislation 
that supports those goals--not the STOP Act.
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    \24\ This point was made by Acoma Pueblo's Jonathan Sims and and 
Navajo Cultural Specialist Timothy Begay, speaking at the panel, 
Private Auction Houses & Repatriation, at the Indigenous International 
Repatriation Conference: Shifting the Burden held at Isleta Pueblo, 
September 26-27, 2016, under the auspices of the Association on 
American Indian Affairs (AAIA).
    \25\ Id.
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NAGPRA Does Not Provide Adequate Guidance to Determine Status of an 
        Artifact
    The tribes' experience with NAGPRA illustrates the poor results 
that follow on inconsistent definitions and standards. Twenty-six years 
after its enactment, there are still no standard criteria under NAGPRA 
among museums that could provide guidance to the public about what 
should be repatriated. Even more importantly, museums and tribes often 
do not agree on which items in museum collections are subject to 
repatriation to tribes under NAGPRA. After 26 years, there is no 
publicly accessible list of items in the category of ceremonial objects 
under NAGPRA for each of the 567 federally recognized tribes to provide 
private citizens with guidance regarding which cultural objects are 
subject to claims for repatriation.
    Only about one-third of human remains in U.S. museums, which are 
unquestionably subject to repatriation, have been repatriated to 
tribes. An even higher percentage of objects of material culture, 
whether for ceremonial or for ordinary usage, remains in museum 
collections and has not yet been cataloged for purposes of NAGPRA. 
Although many museums have worked diligently to set standards for 
repatriation--and although museums have significant institutional, 
academic and scientific resources, there is still not agreement even 
among museums regarding the types of objects subject to repatriation 
claims under NAGPRA.
    Federal agencies have not begun to investigate the number of human 
remains or cultural objects that were exported from the U.S. with 
permits issued under the American Antiquities Act, but whose permits 
enabled the U.S. to request their return. \26\ Yet if the STOP act is 
enacted, the Federal Government will expect U.S. citizens, who rarely 
have any records pertaining to cultural objects in their private 
collections (and which almost never contain human remains, as do museum 
collections), to independently determine what should be returned to 
tribal communities. If federal agencies have not started a process for 
repatriation based upon existing, written agreements with foreign 
institutions, why should private citizens be obligated to an even 
higher standard regarding cultural objects without known provenance?
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    \26\ Melanie O'Brien, Program Manager, National NAGPRA Program, 
U.S. National Park Service, personal communication and at the panel, 
Federal Tools in International Repatriation, at the Indigenous 
International Repatriation Conference, Isleta Pueblo, September 27, 
2016.
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Tribes May be the Best Judges, But in Many Cases, Tribes Are Not 
        Willing to Make Public Their Criteria for Identifying Sacred or 
        Ceremonial Objects
    One response to questions about the process for the public to 
determine what objects would be subject to repatriation has been that 
it would be best to ``ask the tribes,'' and the ``tribes intend to set 
up a hotline.'' \27\ On its surface, this seems a direct and reasonable 
proposal. However, when one remembers that there are hundreds of 
thousands of Native American objects in private circulation at any one 
time, and there are 567 federally recognized tribes, then such a 
solution has obvious flaws. Who is the average American going to call?
---------------------------------------------------------------------------
    \27\ Ann Rogers, Esq., made this suggestion when speaking at CLE 
International Visual Arts & the Law Conference, Santa Fe, NM, July 28-
29, 2016.
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    Although a few (mostly northeastern U.S.) tribes have created lists 
of items that they wish repatriated, most feel it is not appropriate to 
do so. Many southwestern U.S. tribes, including the Acoma, Laguna, 
Hopi, and Navajo, have stated that they will not reveal such 
information: the only persons who are permitted to have such knowledge 
are those within the tribal community with specific religious authority 
to possess it. It is their right and their choice to withhold 
information that is not proper to share with outsiders. It is improper, 
however, for Congress to give the tribes (or anyone else) a pass on the 
fair notice that due process requires. The drafters of the STOP Act 
should have realized that delegating authority to the tribes would 
require not just due process, but also transparency or ``sunshine'' 
requirements under federal law.
    Further, the STOP Act covers far more than ceremonial objects. 
Tribal decision-makers are no better able than a private citizen is to 
determine whether or not an item without provenance came from federal 
or Indian lands, or when, over the last 140 years, it was removed. The 
STOP Act does not address how tribes and federal agencies would split 
the authority to deal with objects deemed unlawful to export under 
ARPA's time-and-place based criteria.
A 2-Year Grant of Immunity from Prosecution Will Frighten Collectors, 
        Harm Museums and Substantially Burden the Tribes, Without 
        Bringing Important Objects Home
    The STOP Act's 2-year ``amnesty'' window for the return of 
``unlawful'' tribal cultural objects by private collectors implies that 
possession of all cultural objects is unlawful. Its effect is coercive 
and threatening. The STOP Act's immunity from prosecution provision 
could easily result in consumer confusion and cause unwarranted returns 
of thousands of lawfully owned objects to tribes which do not want 
them. Collectors may be pressured to give up objects simply out of an 
abundance of caution. Alternatively, the STOP Act's lack of clear 
criteria or of any process for repatriation could result in virtually 
no returns at all.
    Regardless of the practical effect, by directing current owners to 
repatriate ``all of the Native American cultural objects (as defined in 
section 1171(a)) in the possession of the person'' to ``the appropriate 
Indian tribe or Native Hawaiian organization,'' the STOP Act clearly 
makes Native tribes and organizations the arbiters of what is lawful or 
unlawful and which tribe is an ``appropriate tribe'' to return objects 
to. This would impermissibly subject non-tribal U.S. citizens to tribal 
jurisdiction and grant extra-territorial authority over U.S. citizens 
to the tribes.
    By broadly including the definitions of cultural objects under ARPA 
and NAGPRA within the STOP Act, by imposing implicit obligations on the 
public as well as museums to return cultural objects, and by failing to 
establish basic evidentiary standards for claimant tribes, the STOP Act 
sweeps away constitutional and legislative protections for 
grandfathered objects under ARPA and NAGPRA, and departs from Congress' 
intent to preserve scientific and academic access for the public 
benefit through private collections of Native American cultural 
objects.
    The STOP appears to require a de facto reversal of the burden of 
proof from the government to a private owner to show that an object is 
lawfully held, exported or otherwise transferred. A private owner 
generally does not know when and where an object was originally 
acquired, does not have tribally-held secret knowledge regarding the 
ceremonial character of an object, and cannot reasonably be expected in 
many cases, even to know which tribe is the ``proper'' tribe to return 
it to.
    An allegation by the government that an owner failed to timely 
repatriate a cultural object to the proper tribe would impermissibly 
shift the burden of proof to a defendant's detriment and sanction a per 
se violation of his or her due process rights.
The Stop Act Would Violate the Fifth Amendment Due Process Clause of 
        the U.S. Constitution
    Under the circumstances described above, one can only conclude that 
S. 3127/H. 5854 could not be implemented without raising legal 
challenges for denial of due process to U.S. citizens in possession of 
cultural objects potentially subject to forfeiture. Due process 
requires fair notice of conduct that is forbidden or required. If a 
non-tribal U.S. citizen owner of a cultural objects has no notice that 
a particular object is claimed, then due process is not met. If a 
cultural object is claimed as an inalienable object by a tribe that 
deliberately withholds information on how sacred objects can be 
identified, then due process is not met. \28\
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    \28\ In U.S. v. Tidwell, 191 F.3d 976 (9th Cir. 1999), the Ninth 
Circuit Court of Appeals held that NAGPRA was not unconstitutionally 
vague in defining ``cultural patrimony'' which may not be stolen and 
traded, and that a knowledgeable dealer in the specific circumstances 
of that case had adequate notice of its prohibitions. However, the 
range of objects claimed as ceremonial now claimed by certain tribes is 
unprecedented, and a dealer could not be expected to have knowledge as 
to which objects acquired prior to passage of NAGPRA could be deemed 
inalienable, much less a private owner. ``The court [in U.S. v. Corrow, 
119 F.3d 796, (10th Cir. 1997)] acknowledged conflicting opinions, 
between orthodox and moderate Navajo religious views, regarding the 
alienability of these particular adornments.'' ``Validity, 
Construction, and Applicability of Native American Graves Protection 
and Repatriation Act (25 U.S.C.A.   3001-3013 and 18 U.S.C.A.  
1170)'' Deborah F. Buckman, J.D., 173 A.L.R. Fed. 765 (originally 
published 2001).
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    The U.S. Supreme Court held in Federal Communications Comm'n v. Fox 
Television Stations, Inc., \29\ that due process requires ``fair 
notice'' of applicable regulations. In so doing, the Court observed, 
``A fundamental principle in our legal system is that laws which 
regulate persons or entities must give fair notice of conduct that is 
forbidden or required.'' The Supreme Court held in Papachristou 
v.Jacksonville, ``Living under a rule of law entails various 
suppositions, one of which is that '[all persons] are entitled to be 
informed as to what the State commands or forbids.'' \30\
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    \29\ Federal Communications Comm'n v. Fox Television Stations, 
Inc., 132 S. Ct. 2307, 2012 U.S. LEXIS 4661 (June 21, 2012). In that 
case, the Supreme Court held that because the FCC failed to give Fox 
Television Stations or ABC, Inc. fair notice that fleeting expletives 
and momentary nudity could be found to be actionably indecent, the 
FCC's standards as applied to these broadcasts were vague.
    \30\ Papachristou v.Jacksonville, 405 U. S. 156, 162, 92 S. Ct. 
839, 31 L. Ed. 2d 110 (1972) (quoting Lanzetta v. New Jersey, 306 U.S. 
451, 453, 453 S. Ct. 618, 83 L. Ed. 888 (1939).
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    This requirement of clarity in regulation is essential to the 
protections provided by the Due Process Clause of the Fifth Amendment. 
\31\ It requires the invalidation of laws that are impermissibly vague. 
A conviction or punishment fails to comply with due process if the 
statute or regulation under which it is obtained ``fails to provide a 
person of ordinary intelligence fair notice of what is prohibited, or 
is so standardless that it authorizes or encourages seriously 
discriminatory enforcement.'' \32\ As the Supreme Court has explained, 
a regulation is not vague because it may at times be difficult to prove 
an incriminating fact but rather because it is unclear as to what fact 
must be proved. \33\
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    \31\ See United States v.Williams, 553 U. S. 285, 304, 128 S. Ct. 
1830, 170 L. Ed. 2d 650 (2008).
    \32\ Ibid.
    \33\ See id., at 306, 128 S. Ct. 1830, 170 L. Ed. 2d 650.
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    The void for vagueness doctrine addresses at least two connected 
but discrete due process concerns: first, that regulated parties should 
know what is required of them so they may act accordingly; second, 
precision and guidance are necessary so that those enforcing the law do 
not act in an arbitrary or discriminatory way. \34\
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    \34\ See Grayned v. City of Rockford, 408 U. S. 104, 108-109, 92 S. 
Ct. 2294, 33 L. Ed. 2d 222 (1972).
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    This requirement for fair notice is deeply embedded in the history 
of the common law, a fine and early example being Blackstone's 
criticism of Caligula ``who (according to Dio Cassius) wrote his laws 
in a very small character, and hung them up on high pillars, the more 
effectively to ensnare the people.'' \35\ The STOP Act unquestionably 
falls short of the mandate for fair notice and clarity in the law.
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    \35\ Quoted in United States v. Burgess, 1987 U.S. Dist. LEXIS 
11227 (N.D. Ill. Dec. 1, 1987)
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    Before cultural objects may be forfeited, whether under the STOP 
Act or other U.S. domestic cultural property legislation, the 
government must show that fair notice was given and the requirements of 
due process were met. This simply may not be possible, given the lack 
of criteria for determining the ceremonial nature of an object 
belonging to any one of 567 federally recognized tribes and absence of 
provenance for almost all Native American cultural objects in 
circulation.
    It has been suggested that a 30-day Customs hold be placed on 
Native American Ancestors and cultural items prior to export. \36\ Such 
a proposal raises, with respect to ``cultural objects'' the same issues 
of fair notice and due process.
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    \36\ Written Testimony submitted on October 18, 2016 to the U.S. 
Senate Committee on Indian Affairs by Ms. Honor Keeler, Director of the 
International Repatriation Project of the Association on American 
Indian Affairs.
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    Before objects may be forfeited, the government must establish that 
they are:

        (1)  types of objects designated as inalienable ceremonial 
        cultural objects subject to export restrictions, or

        (2)  unlawfully removed federal or Indian lands after NAGPRA or 
        ARPA went into force.

    Again, the public's inability to access information on what exactly 
constitutes a cultural object would cause the STOP Act to fail. Due 
process would be offended because an exporter could not be given fair 
notice of the conduct that is forbidden or required before his property 
could be seized and be subject to forfeiture.
Evidentiary Issues
    Evidentiary issues inevitably arise when key information about what 
makes a ceremonial object inalienable is deliberately withheld. In 
order to prevail in a prosecution, the government must establish some 
nexus between the property to be forfeited and the forbidden activity 
defined by the statute. \37\ For example, it would be expected that the 
government would use expert testimony to identify the original site of 
an unprovenanced object on federal or Indian land, or the approximate 
date in which it was removed. \38\
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    \37\ United States v. $506,231 in United States Currency, 125 F.3d 
442, 451-52 (7th Cir. 1997).
    \38\ See United States v. 328 ``Quintales'' of Green Coffee Beans, 
21 F. Supp. 3d 122, 129 (D. P.R. 2013) (government's and claimant's 
experts contest origin of coffee beans); United States v. One 
Tyrannosaurs Bataar Skeleton, 2012 U.S. Dist. LEXIS 165153*4 (S.D.N.Y. 
November 14, 2012) (government uses expert testimony to establish that 
Bataar skeleton almost certainly came from the Nemegt Formation in 
Mongolia and was most likely excavated between 1995 and 2005); Three 
Burmese Statues, 2008 U.S. Dist. LEXIS 48474*7 (government's experts 
identify statues as Burmese); United States v. Eighteenth Century 
Peruvian Oil on Canvass, 597 F. Supp. 2d 618, 623 (E.D. Va. 2009) (CPIA 
case; government experts state painting originated in Peru).
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    Similarly, in a prosecution for failure to timely repatriate a 
sacred or ceremonial object, the government would be required to 
provide expert testimony to establish that an object was sacred or 
ceremonial in nature--but many tribes insist that this knowledge remain 
secret. In any trial resulting from the STOP Act, the fact that certain 
tribes decline to share information on ceremonial and inalienable 
objects would result in the government's inability to provide fact 
witnesses who could clearly explain the rationale for the detention and 
seizure of private property, which would be fatal to the government's 
case.
    Tribes have stated that only they have the true knowledge regarding 
ceremonial objects. Nonetheless, the Federal Rule of Evidence 702 
governs the issue of the standards for admission of expert testimony 
for every federal trial. \39\ The proponent must establish the 
admissibility of testimony by a preponderance of the evidence standard. 
The Judge, acting as gatekeeper, must keep in mind two overarching but 
competing goals. \40\ ``First, Rule 702 was intended to liberalize the 
introduction of relevant expert testimony and thus encourages courts to 
rely on vigorous cross-examination and contrary evidence to 
counterbalance expert opinions of uncertain veracity. . 
.Simultaneously, however, a trial court must mind the high potential 
for expert opinions to mislead, rather than enlighten, the jury.'' 
``Qualified'' experts ``must have `knowledge, skill experience, 
training or education' in the subject area. . .'' \41\ Even where an 
expert is qualified, however, his underlying methodology must also 
satisfy Rule 702, i.e. that methodology must satisfy a two prong test 
for (1) reliability and (2) relevance. \42\ Certainly, tribes could 
provide knowledgeable experts, but expert testimony would be subject to 
challenge and crossexamination that might reveal information tribes are 
unwilling to make public.
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    \39\ Foster v. Legal Sea Foods, Inc., 2008 U.S. Dist. LEXIS 
57117*25-28, at 25(D. Md. 2008) (Blake, J.).
    \40\ Id.
    \41\ Id.
    \42\ Id.
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French law
    Finally, there is a serious weakness in the STOP Act supporters' 
arguments that a U.S. law prohibiting export would not only be 
recognized in France, but would require French authorities to halt 
auctions and return items to the U.S. and to the tribes. France is a 
signatory of the 1970 UNESCO Convention, \43\ but France's ratification 
of UNESCO 1970 has not prevented it from being a major market center in 
Europe for ancient, antique, ethnographic and tribal art.
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    \43\ France ratified the 1970 UNESCO Convention on the Means of 
Prohibiting and Preventing the Illicit Import, Export and Transfer of 
Ownership of Cultural Property on January 7, 1997.
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    To provide a single example, the most important ethnographic and 
tribal art fair in the world, the Parcours des Mondes, \44\ is held 
every year in September, in St. Germain des Pres, Paris. This year, 
eighty art dealers came to the fair from around the world, and artworks 
from Africa, Oceania, Asia, and South and ``Indigenous America'' were 
displayed. The catalog of exhibitors showed, among many other objects 
from countries with laws prohibiting export, pre-Columbian works from 
Mexico, an Amazonian shrunken head, and a wide variety of African and 
Southeast Asian sculptures. No art dealers were stopped at the border, 
and no one's art was detained or forfeited.
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    \44\ http://www.parcours-des-mondes.com/index.php?lang=en
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    The existence or lack of an ``export law'' is not the issue; it is 
a filing of an actual claim of theft. The key event which resulted in 
the withdrawal of the disputed Acoma shield from auction in Paris took 
place in New Mexico. An affidavit was filed in federal district court 
by a family member who identified the shield as having been stolen from 
the family home many years before. This specific claim of ownership 
made all the difference in France, and is likely to result in the 
object's return.
    It is hoped that tribes will take steps to strengthen their hand in 
future claims. Tribes are presently considering enacting internal 
tribal legislation that establishes title to cultural objects under 
codified tribal law, and delegating authority to tribal authorities to 
make claims as they feel it is appropriate. Some form of internal 
documentation that tribes consider suitable for themselves would likely 
be more effective than any ``export law,'' since France and several 
other European countries have not yet implemented international 
treaties such as UNESCO into practice, even after several decades.
Recommendations for future action
    1. The U.S. government should clean its own house prior to placing 
unreasonable burdens on private citizens. The U.S. government should 
locate and seek repatriation of cultural objects under permitting 
agreements with foreign museums executed after the 1906 Antiquities 
Act. \45\
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    \45\ Some permitting agreements under the 1906 Antiquities Act with 
foreign museums and institutions vested permanent ownership in cultural 
objects in the U.S., and returns of cultural objects could be demanded, 
but has not yet been sought, according to a presentation by Melanie 
O'Brien, Program Manager, National NAGPRA Program, U.S. National Park 
Service, at the panel, Federal Tools in International Repatriation, 
Indigenous International Repatriation Conference, Isleta Pueblo, 
September 26-27, 2016.
---------------------------------------------------------------------------
    2. A thorough and accurate study of the Indian art market should be 
undertaken in order to define the scope and scale of problems any 
proposed law is to address. Despite public statements by some 
supporters of the STOP Act that important tribal cultural objects are 
currently at risk of looting and that significant traffic in stolen 
objects continues, this is emphatically not the experience of 
contemporary traders in Native American art. On the contrary, most art 
dealers and collectors are better educated about and far more sensitive 
to tribal concerns than ever before.
    3. Due process should be assured--not obscured--by clearly setting 
forth the regulatory process and administrative structure for 
implementation of any proposed law. Any law must have provisions for 
fair notice that adequately inform the American public of what 
constitutes a violation of law, and what steps must be taken to stay 
within the law.
    4. The costs to the American taxpayer, to local governments, and to 
tribes should be clearly identified, with respect to loss of tax and 
tourism revenue and the costs of regulatory systems and activities 
before considering passage of the STOP Act.
    5. There must be good faith, effective consultation with all 
federally recognized tribes, since all are covered by the proposed 
legislation, to ensure that legislation accurately reflects the goals 
of the tribes and honors tribal sovereignty.
    6. There must be adequate funding to establish and sustain the 
administrative structure envisioned by any proposed legislation.
    ATADA believes it is crucial to honor Native American traditions, 
to ensure the health and vitality of tribal communities, and to respect 
the tribes' sovereign rights. We also believe it is important to 
preserve the due process rights of U.S. citizens and to promote the 
trade in Native American arts that sustains many tribal and non-tribal 
communities in the American West. The STOP Act is an ill-conceived law 
that will achieve neither goal.
    ATADA is working diligently to meet with tribal officials and to 
work directly together to craft more realistic and effective solutions 
that bring us together in mutual respect and understanding. We are 
committed to learning from the tribes and pursuing a path that meets 
their primary goal of repatriation of key ceremonial objects as well as 
maintaining a legitimate trade, academic access, and preservation of 
the tangible history of the First Americans.
                                 ______
                                 
 Prepared Statement of Hon. Myron Armijo, Governor, Pueblo of Santa Ana
    Thank you for coming to New Mexico to discuss this important issue 
that affects all tribes in our state, including the Pueblo of Santa 
Ana. In the early 1980s, the Pueblo of Santa Ana suffered a massive 
tragedy of the theft of many sacred and cultural items from the family 
homes of our people, including the home of my own family. Our family 
homes are located in the old village, a location that was established 
in the 1500s and which is closed off to the public for most of the 
year. Thieves broke into these homes at the old village, where our 
Pueblo was originally located, and stole sacred items and items of 
cultural patrimony from many, many families.
    The thieves crossed the river near our Pueblo and hid our sacred 
items underneath a large juniper and would later return to their hiding 
place to retrieve the items to sell to willing buyers. These thefts 
were happening sporadically for years and through several 
Administrations. Many nights, tribal sheriffs including the Governor 
would keep the Pueblo under surveillance in hopes of apprehending the 
thieves. One day the individuals perpetrating these acts were finally 
apprehended. My understanding is that they served some jail time and 
were released with what my people consider to be a slap on the wrist.
    Meanwhile, we recovered the items that were left in the thieves' 
stash. These sacred items are, in fact, not merely ``items'' to us. 
They are full of life, they are central to our ceremonies, and they are 
close to our hearts.
    Some ``items,'' however, have still not made it home. But they are 
not forgotten. Nearly two generations later, our people still discuss 
these sacred items around the dinner table, wondering what happened to 
them and where they are, the way one would wonder about the fate of a 
missing relative. Among the items that have never returned is a shield 
that was stolen from our home and belonged to my grandfather. 
Grandfather has long since passed, but our family still remembers the 
loss of this shield, and although I remember it clearly, I still try to 
recall its finer details in my memory.
    The Pueblo of Santa Ana strongly supports the Safeguard Tribal 
Objects of Patrimony (STOP) Act and related federal legislation because 
we still yearn for the return of our sacred items and because we do not 
ever want another generation or another tribe to suffer the loss that 
we have suffered. Theft and the illicit trade of tribal cultural items 
steals from our people, our families, and our communities our history, 
our culture, and the legacy we leave for our future generations. Truly, 
it threatens our very identity and cultural survival--our ways of being 
as a people and as a tribe.
    The STOP Act strengthens existing federal laws, increasing 
penalties for violations of the Native American Graves Protection and 
Repatriation Act (NAGPRA). It also prohibits exporting items that were 
obtained in violation of NAGPRA, the Archaeological Resources 
Protection Act (ARPA), and the Antiquities Act. These increased 
penalties and explicit export restrictions are necessary to deter the 
theft and trafficking of our sacred and cultural items and to aid in 
theft recovery both domestically and internationally.
    Also, the STOP Act will protect tribes as well as good faith 
sellers and purchasers. Illegal trafficking of tribal cultural items 
corrupts the Native American art market, introducing uncertainty into 
transactions. Santa Ana vehemently opposes those who work to illegally 
market items of cultural patrimony, yet we do believe that we can 
protect tribal cultures and support artists, dealers, purchasers, and 
others engaged in the legitimate sale of Native American art. It is 
only a small subset of the items for sale that qualify as federally 
protected Native American cultural objects, and we fully support the 
sale and enjoyment of legitimate Native American art. The STOP Act will 
reduce illegal trafficking in tribal cultural items, allowing buyers 
and sellers to be confident that they are participating in legitimate 
transactions that honor Native American arts and culture.
    In addition to supporting the STOP Act, we request support for the 
creation of a Cultural Items Unit within the Bureau of Indian Affairs./
Such a unit, and sufficient funding for such a unit, could aid 
tremendously in Santa Ana's efforts to locate and bring home our still 
missing sacred and cultural items. We also welcome opportunities to 
work with collectors to quietly repatriate sacred items.
    My most sincere thanks to you the Committee for allowing the Pueblo 
to provide testimony on this issue but most importantly, for bringing 
this Field Hearing to New Mexico. We hope that you will take action to 
remedy the great loss our community has suffered and continues to 
suffer and that you will work to protect future generations and other 
tribes from such tragedy. We welcome the opportunity to work with the 
Committee and others as new ideas come in to address the grave problem 
of the theft, illegal possession, sale, transfer, and exportation of 
tribal cultural items. We continue to have faith and hope that one day 
we all will be able to see and hold those items which were wrongfully 
taken from us so many years ago.
                                 ______
                                 
Prepared Statement of Hon. J. Michael Chavarria, Governor, Santa Clara 
                                 Pueblo
Introduction
    On behalf of Santa Clara Pueblo, thank you for this opportunity to 
submit written testimony on the issue of the theft, illegal possession, 
sale, transfer, and export of tribal cultural items. Trafficking in our 
sacred cultural items has gravely affected our Pueblo, threatening our 
way of life and our cultural survival. Santa Clara Pueblo fully 
supports S. 3127, the Safeguard Tribal Objects of Patrimony (STOP) Act. 
Urgent, immediate action is required to combat trafficking in our 
cultural items, as we have seen a marked increase in such trafficking 
over the last year. Higher penalties are needed to deter the theft and 
sale of our cultural items, along with increased funding for and 
attention to enforcement efforts. Additionally, in order to stop 
trafficking in tribal cultural items, federal laws need to address 
items dug up from private lands and items taken before the enactment of 
NAGPRA. But even as we ask for stricter measures, we would welcome the 
opportunity to build positive relationships with collectors of good 
will in order to facilitate the voluntary return of sensitive items as 
collectors come to understand how central these items are to our 
identity. Thank you for your attention to these important issues.
Trafficking in Tribal Cultural Items Poses a Grave Threat to Our People
    Santa Clara has been plagued by the theft and sale of our cultural 
items since the time of first contact, and we continue to struggle 
against this scourge. For us, our sacred and cultural items are not 
merely objects or items of artistic or historical value. These items 
are integral to our cultures. Our Pueblo, like many other tribes, has 
been greatly impacted by having items stolen. The theft of our sacred 
and cultural items must be stopped, and these items must be returned 
home to our people, where they belong.
Support for the STOP Act and Related Efforts
    Santa Clara Pueblo fully supports the STOP Act and related efforts 
to end the theft and sale of our cultural items and ensure their 
repatriation. We were very much encouraged by the Senate's September 
29, 2016 passage of the Protection of the Right of Tribes to stop the 
Export of Cultural and Traditional (PROTECT) Patrimony Resolution, 
H.Con.Res. 122, as amended. The PROTECT Patrimony Resolution 
acknowledged the seriousness of illegal trafficking in tribal cultural 
items both at home and abroad and called for additional steps to 
address this problem. We encourage the Committee to build on this 
support for ending illegal trafficking in tribal cultural items by 
supporting passage of the STOP Act.
Urgent Action is Required
    Santa Clara welcomes recent congressional efforts to end 
trafficking in tribal cultural items and to ensure these items return 
home. However, we strongly urge the Committee to take swift action to 
address these issues. In 2016, we have seen a significant uptick in the 
rates at which our items are being sold at auction. In fact, we believe 
that some of this increase in trafficking is because thieves and 
vendors are attempting to offload stolen goods before legislation can 
be passed that would crack down on the illegal trade in tribal cultural 
items. We need your help now to stop these illegal sales and assist us 
in recovering our sacred items.
Higher Penalties are Needed to Deter Trafficking
    Currently, it is difficult to combat the trafficking of our 
cultural items because penalties are not taken seriously. This is due 
to both the relatively low jail time associated with such crimes as 
well as the low risk of apprehension and prosecution. In order to 
effectively combat trafficking in our cultural items, we need 
perpetrators to take the risk of prosecution and criminal penalties 
seriously. We strongly support the STOP Act's increase in criminal 
penalties under the Native American Graves Protection and Repatriation 
Act (NAGPRA). This increase in possible jail time will help deter those 
that would pillage our cultures for profit in violation of federal law. 
Additionally, we support the extension of criminal penalties to the 
export of protected cultural items that have been taken from us 
illegally. It is our hope that explicit export restrictions will keep 
our sacred and cultural items from ending up abroad, where they are 
much harder to locate and recover.
    We have heard that there have been some criticisms of the STOP Act, 
and we believe these are mostly founded upon a misunderstanding of the 
Act. Importantly, the Act does not criminalize activities that were not 
already violating federal law. It merely increases NAGRPA penalties and 
prevents someone from knowingly exporting items taken in violation of 
NAGPRA, the Archaeological Resources Protection Act (ARPA), and the 
Antiquities Act. The feedback we have received over the years from art 
and antiquities dealers is that our cultural items are being bought and 
sold in backroom or basement deals, and the parties involved in these 
deals are aware that they are breaking the law and violating our 
culture. Neither current law nor the STOP Act seek to penalize good 
faith sellers or purchasers.
Increased Attention to and Funding for Enforcement are Needed
    In addition to higher criminal penalties, increased attention to 
and funding for law enforcement efforts are needed to deter those that 
would traffic in stolen cultural items. The Bureau of Indian Affairs 
(BIA) needs additional resources to investigate these crimes and 
enforce federal law. Santa Clara requests an appropriation to fund a 
Cultural Items Unit within the BIA to investigate violations of NAGPRA, 
ARPA and related federal laws. We understand that the House has 
recommended $1,000,000 for the development of a Cultural Items Unit, 
see House Report 1 14-632, and we request Senate support for such 
appropriations.
Federal Laws Need to Address Private Lands and Repatriation of Items 
        Taken Before NAGPRA
    In addition to increased criminal penalties for and enforcement of 
current federal law, we urge Congress to address the narrow scope of 
current laws. For instance, NAGPRA's provisions regarding private 
ownership and control only apply to cultural items excavated or 
discovered on federal or tribal lands after November 16, 1990. 25 
U.S.C.  3002. We are left without recourse when dealing with items 
stolen from our Pueblo prior to November 16, 1990, including ancient 
items belonging to the Ancestral Puebloans. We also have no protection 
regarding cultural items that have been dug up from private lands. The 
narrow scope of current protections impedes the repatriation of many 
cultural items that are deeply important to our Pueblo. We ask that 
Congress address these very serious gaps in federal law.
Building Relationships with Collectors and Dealers
    Federal laws regarding tribal cultural items shape the values of 
our country. But within their frame, there is an opportunity for people 
of good will to voluntarily bring these sacred items home. In our 
experience, there is much work to be done to educate private entities 
about shared Puebloan ancestry, ancient items, and the importance of 
these to current Pueblos. We believe that fostering relationships with 
collectors and dealers can help us to educate them about the history of 
our peoples and facilitate the return of cultural items without 
demanding forms of proof that would either be impossible to provide or 
would entail sensitive information. The Santa Clara Pueblo will always 
be open to discussing with the current holders of our cultural items 
how their appropriate return can be achieved in a way that brings 
dignity to all.
Conclusion
    Thank you for visiting New Mexico to hold this important field 
hearing. The theft, illegal sale, possession, and export of our 
Pueblo's cultural items is threatening our very way of life. We welcome 
your attention to this important issue, and we fully support the STOP 
Act and related congressional efforts. In particular, we ask that you 
help us deter the theft and sale of our cultural items by supporting 
increased criminal penalties and greater attention to and funding for 
enforcement of federal laws related to trafficking in tribal cultural 
items. We also urge you to address the large gaps in federal 
protections that impede the repatriation of items taken from us pre-
NAGPRA or from private lands. We respectfully request that you act 
swiftly to address these issues, as the problem of trafficking in 
tribal cultural items continues to grow. Each day that passes makes it 
more difficult for us to recover the cultural items that have been 
taken from us, and we urgently request your assistance in ending these 
vile practices and restoring our sacred items to their rightful homes. 
Thank you.
                                 ______
                                 
       Prepared Statement of Robert V. Gallegos, Albuquerque, NM
Sharing the Burden
    On the surface, STOP or the PROTECT legislation seems like the 
noble thing to do. However, understanding how we have arrived at this 
juncture is important. We cannot lose sight of the fact that cultural 
objects left Indian possession in many different ways over the years, 
and that in fact, US government agencies were responsible for most of 
the inalienable cultural objects having left the native communities.
    For more than 150 years, our government has passed laws and issued 
regulations restricting Indian ceremonies, used termination acts to 
alter indigenous governing structures, and forcibly relocated entire 
communities. It has repeatedly forced assimilation upon indigenous 
peoples by attempting to destroy their religions and language.
    Our government's goal was to access Indian lands and terminate its 
obligations to the tribes under treaties and federal law. In the 20th 
century, termination policies provided a means to appropriate Indian's 
cultural property for the benefit of non-tribal interest groups, 
including the academic and scientific communities, without compensation 
or permission from the native communities from which the cultural 
property originated. According to the article History and Culture: 
Termination Policy-1953-1968, ``pursuant to this policy,109 tribes were 
terminated between 1953 and 1964, 2,500,000 acres were removed from 
trust status and 12,000 natives lost tribal affiliation.'' This policy 
continued until President Nixon reversed this trend through executive 
actions in 1970.
    It is no surprise that so many inalienable objects left the 
reservations. Not knowing about the native cultural prospective, we art 
dealers and collectors collected legally under the laws set forth by 
our government. Now the market (dealers, collectors and museums) is 
being blamed for the problems that are occurring in Paris and 
elsewhere. We have forgotten or ignored the government actions that 
brought cultural objects into the stream of commerce in the first 
place.
    We, the market, recognize our role in these transactions and we are 
be willing to extend our hands in helping the Native Americans in owing 
and controlling their sacred objects and objects of cultural patrimony 
as defined by NAGPRA. As NAGPRA does not cover items in the private 
sector acquired prior to 1990, the market should encourage voluntary 
repatriation.
    The most effective way of reaching out to other art dealers, 
collectors, and museums is through education. Repatriation can best be 
accomplished by educating dealers, collectors and museums about the 
native world view and how the possession or loss of such items affect 
the health of native communities. Solicitation of large foundations 
such as Annenberg, Sackler, and others, and encouraging dealers and 
collectors to donate monies for repatriation purchases could be 
pursued. The availability of subsidized donations and the ability to 
take advantage of tax deductions for donating to a federally recognized 
tribe is essential for many collectors who are not, in fact, wealthy 
individuals.
    The U.S. Government needs to recognize that it created this problem 
in the first place and accept its part of the burden. It needs to 
allocate substantial amounts of monies for repatriation purposes to 
ensure this process will work. NAGPRA encourages compromise solutions 
between groups that do not normally interact. We need to come together 
as a community and treat each other with respect as human beings. To 
litigate is not the answer as it further polarizes peoples and the 
millions spent on litigation can be better spent elsewhere. The Market 
fears overreach by the native communities. However, it is time to trust 
the decisions of the religious elders based on their customary laws. If 
this process breaks down, we can always resort to old ways but we must 
try!
                                 ______
                                 
  Prepared Statement of Hon. David R. Yepa, Governor, Pueblo of Jemez
    Senator Udall, Senator Heinrich and distinguished members of the 
Senate Committee on Indian Affairs, thank you for holding this field 
hearing in New Mexico to prevent the Theft, Illegal Possession, Sale, 
Transfer and Export of Tribal Cultural Items.
    On behalf of the Pueblo of Jemez, I request the assistance of the 
United States Government to stop the theft, illegal possession, sale, 
transfer, and export of Native American sacred objects and objects of 
cultural patrimony.
    The Pueblo of Jemez has been against the illegal sale, possession, 
trade, theft and export of sacred objects of cultural patrimony ever 
since we became aware of such incidents. We have had thousands of our 
ancestral homelands desecrated in the form of archeological excavations 
and looting on archeological sites associated to our ancestral 
forefathers. Looters have stolen human remains as well as funerary 
objects placed with our ancestors at the time of their interment.
    Since the passing of Native American Graves Protection Repatriation 
Act or NAGPRA, we have had to prove to the Federal Government that the 
human remains and their associated funerary objects were in fact our 
ancestral forefathers. Jemez Pueblo has repatriated tens of thousands 
of human remains and their associated funerary objects and objects of 
cultural Patrimony from Museums across the nation as well as one 
international repatriation from New Zealand. In a few instances private 
collectors have voluntarily returned many artifacts in their private 
possession to Jemez Pueblo. It is hard to fathom the intensity of mixed 
feelings these acts have brought to our people. It is just not right.
    Today, in the 21st century we are still in the same predicament. 
The difference today is that we have seats at the table to have our 
voices heard. Our forefathers witnessed the lootings and the formal 
archeological excavations occurring at our ancestral sites but who were 
they going to tell? What were they supposed to do? It must have been 
really heart wrenching to see their sacred sites and the human remains 
of their ancestors dug up and put into boxes to be shipped away. In the 
eyes of the Government they were not hurting anybody, just performing a 
science on archeological sites on public lands with no consideration of 
the Jemez people who were associated to these sites. Today, we can join 
forces with our Native American brothers and sisters and make one voice 
be heard by the United States Government that the act of theft, illegal 
possession, sale and transport of Native American sacred objects and 
objects of cultural patrimony has to stop now.
    Jemez Pueblo has had hundreds of sacred objects and objects of 
cultural patrimony sold in the antiquities market at national and 
international websites like Sotheby's, Butterfield's Auction House, Eve 
Auction House and the Galerie Flak in Paris, to name but a few (see 
below for others), not to mention private collectors selling to other 
collectors in ``legal transactions'' in the stores in Santa Fe and 
Albuquerque. These activities must stop. Jemez Tribal Law states that 
it is illegal for any tribal member to sell or desecrate any object of 
cultural patrimony at any time or to anyone because they do not 
rightfully own it; they may be responsible for it while it is under 
their care but they do not own it. It is inexcusable and the result 
could be alienation from tribal members and tribal activities. The 
Pueblo of Jemez is in favor of stiffer penalties for the parties 
involved in the illegal theft, sale, illegal possession, transfer and 
export of sacred objects and for ensuring that such objects are 
returned to the Native American owners.
    The Pueblo of Jemez fully supports the Safeguard Tribal Objects of 
Patrimony (STOP) Act, S. 3127 and H.R. 5854. This Act strengthens our 
ability to protect our important cultural objects from ending up in the 
hands of those that have no right to possess them. Stiffer penalties 
and an explicit prohibition on exportation are crucial to prevent the 
theft and trafficking of our cultural objects. The provisions in the 
STOP Act are important to allow us to recover those objects that have 
left our territory and to bring them back to where they belong.
    A law is only good and will serve its purpose if it is enforced. 
Enforcement of the STOP Act is absolutely necessary in order to achieve 
the intent and objective behind this law. The Pueblo of Jemez strongly 
suggests establishing a Cultural Crimes Unit within the Bureau of 
Indian Affairs or within an appropriate federal agency to investigate 
violations of the STOP Act. More importantly, the Pueblo of Jemez 
requests for Congressional support for federal funding to support 
establishment of a Cultural Crimes Unit and increased appropriations 
for the United States Attorneys' Offices who will be responsible for 
prosecuting violators of the STOP Act.
    In conclusion, the Pueblo of Jemez in one voice with our Native 
American brothers and sisters from 23 sovereign nations in the State of 
New Mexico join in urging the United States Government to work with us 
to stop the theft, sale, illegal possession, transfer and export of 
Native American sacred objects and objects of cultural patrimony.
    Jemez Antiquities have been sold on these websites

        Christies.com
        Artvalue.com
        New.liveauctioneers.com
        Adobegallery.com
        Navajorugsindianbaskets.com
        Artfinding.com
        Sotheby's
        Eve Auction House
        Butterfield's Auction House
        Galerie Flak
                                 ______
                                 
             Prepared Statement of Jim Owens, Corrales, NM
             
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